State v. James S.

221 Conn.App. 797

303 A.3d 261

STATE of Connecticut v. JAMES S. ^*

AC 45243

Appellate Court of Connecticut.

Argued April 11, 2023

Officially Released October 10, 2023

Jennifer B. Smith, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Tatiana A. Messina, senior assistant state's attorney, for the appellee (state).

Alvord, Cradle and Clark, Js.

CLARK, J.

The defendant, James S., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that (1) the evidence was insufficient to convict him of risk of injury to a child, (2) he "has a due process right to a pretrial taint hearing to evaluate whether the complainant's statements and testimony were reliable or whether they were coerced and a product of suggestive questioning," and (3) if he did not have a right to a pretrial taint hearing, that this court should exercise its supervisory authority to require pretrial taint hearings to assess the reliability of complainants in child sexual abuse cases. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 21, 2019, the defendant arrived at the apartment of his half sister, L, to attend a birthday party for L's grandfather. At the behest of T, the mother of L and the defendant, L agreed to let the defendant sleep at her apartment that night. The following day, September 22, 2019, L asked the defendant to watch her three year old daughter, R, the complainant in this case, while L left the apartment to drop her youngest son off at his workplace. Before leaving, L told the defendant that he did not have to do anything to take care of R, other than remind her to finish eating her food. L left to bring her son to work and stopped at a Family Dollar store on her way home. She was away from the apartment for approximately twenty to twenty-five minutes, during which time the defendant and R were the only individuals in the apartment. When L returned home, she noticed that R "looked frightened ... it was a look [L had] never seen [R] have ... before ...." L gave the defendant some money and told him to buy cigarettes at a nearby convenience store, which gave L an opportunity to speak with R alone. The defendant then left the apartment, at which point L asked R what was wrong. R told L that the defendant had hurt her and pointed to her vagina (incident).

When the defendant returned from the store, L struck him, "[trying her] best to hurt him" before throwing him out of the apartment. L then called T and told her to "come get [the defendant]. [L] said [to T that she] think[s] [the defendant] touched [R]." After L got off the phone with T, she inspected R and discovered that "[R's vagina] was shiny. It was red, and it was open a little bit more than [she had] ever seen it." At some point after the incident, L discovered that a jar of Vaseline that she kept in a drawer in her kitchen, which previously contained some Vaseline, was now empty. ¹

When T arrived at the apartment, the defendant was sitting on the stoop in front of L's apartment building. T asked L if she could go inside the apartment to see R. L then accompanied T to R's room, where T asked R what had happened. R said that the defendant hurt her "here and ... here," gesturing to her vagina and buttocks. Afterward, T left the apartment and took the defendant home with her.

On September 24, 2019, two days after the incident, L called the police. ² Thereafter, Officer Davon Polite arrived at L's apartment, where he spoke with L to gather information about the incident. L identified the defendant as the individual who touched R, but Polite never spoke with R directly. ³ After his conversation with L, Polite called dispatch to request an ambulance and informed his sergeant of the incident, after which time the investigation was referred to the domestic violence unit of the police department.

An ambulance transported L and R to Bridgeport Hospital, where they met with Adam Paquin, a clinical social worker. Before meeting with R, Paquin spoke with L in the hallway outside of R's treatment room. L disclosed to Paquin that R had told L "that [the defendant] hurt her," and then repeated the gesture R had shown L.

Paquin spoke with the attending physician and assigned nurse and then met with R in the treatment room. ⁴ Paquin found that R's verbal skills were limited, and that she "responded yes and no to contradicting questions." When Paquin began asking R questions about the defendant, R "reported that she likes [the defendant] and has fun playing with him. [Paquin then] explored if [the defendant] ever hurt her, and she replied no. During the conversation, [R] ... [pointed] to her vagina and said ‘finger.’ [When Paquin] explored this, [R] stated that [the defendant] touched her." The attending physician noted "[v]aginal pain" as a physical indicator of sexual abuse but identified no other signs of injury. Upon discharge, Paquin referred R to the Center for Family Justice for a forensic interview.

On October 4, 2019, R presented at the Center for Family Justice for a forensic interview. ⁵ During the interview, which was approximately thirteen minutes long, R stated that she was touched in a way that hurt her, but did not specify where, nor did she specifically accuse the defendant. Later in the interview, R stated that "Justice hurt [her]." ⁶ The forensic interviewer, having trouble understanding R, did not ask any further clarifying questions. ⁷

On October 21, 2019, R was evaluated by Beth A. Moller, an advanced practice registered nurse, at the Family Advocacy Center at Yale New Haven Hospital. Before Moller began evaluating R, she spoke with L, who reported that R had been waking up with nightmares since the incident. During Moller's discussion with R, Moller "asked [R] if she had any worries about her body and she said her belly. [Moller] asked why she had a worry about her belly and [R] said ‘because [the defendant] hurts [her].’ Then she said ‘I cry.’ [Moller] asked [R] why she cried and she said ‘[because the defendant] hurt [her].’ Then [R] pointed to her vagina and to her buttocks and said ‘[r]ight there ... and right there ... [the defendant] put one finger (pointing with one finger) in there (again pointing to the vagina) and in there’ (pointing to her buttocks). [Moller] asked if [the defendant] did that one time or more than one time. [R] said ‘more than one time.’ " ⁸ Next, Moller conducted a physical exam of R and found that R's external genitalia and anus were normal, without any signs of vaginal discharge, lesions, blood, trauma, injury, or redness. ⁹

The defendant thereafter was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), ¹⁰ sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), ¹¹ and risk of injury to a child in violation of § 53-21 (a) (2). ¹² A jury trial was held over four days in September, 2021. On September 30, 2021, the jury returned its verdict of not guilty of sexual assault in the first degree, not guilty of the lesser included offense of attempt to commit sexual assault in the first degree, not guilty of sexual assault in the fourth degree, and guilty of risk of injury to a child. On November 30, 2021, the court, Hernandez , J. , sentenced the defendant to a term of imprisonment of fifteen years, execution suspended after five years, and ten years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the evidence at trial was insufficient to convict him of risk of injury to a child. Specifically, he argues that the state failed to prove that the defendant touched R's intimate parts in a sexual and indecent manner that was likely to impair her health or morals. We disagree.

"We begin our analysis by setting forth the well established legal principles for assessing an insufficiency of the evidence claim. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In particular, before this court may overturn a jury verdict for insufficient evidence, it must conclude that no reasonable jury could arrive at the conclusion the jury did." (Citation omitted; internal quotation marks omitted.) State v. Charles L. , 217 Conn. App. 380, 386, 288 A.3d 664, cert. denied, 346 Conn. 920, 291 A.3d 607 (2023). "While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.)

State v. Stephen J. R. , 309 Conn. 586, 593–94, 72 A.3d 379 (2013). "On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [fact finder's] verdict of guilty." (Internal...