State v. John F.M.

940 A.2d 755

285 Conn. 528

STATE of Connecticut v. JOHN F.M.

No. 17677.

Supreme Court of Connecticut.

Argued September 20, 2007.

Decided February 19, 2008.

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Stacey Haupt, assistant state's attorney, for the appellant (state).

Martin Zeldis, public defender, for the appellee (defendant).

Joseph P. Secola, Brookfield, filed a brief for the National Legal Foundation as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

ROGERS, C.J.

In this certified appeal,¹ we must determine whether the Appellate Court properly reversed the judgment of conviction of the defendant, John F.M.,² of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(2)³ for engaging in sexual intercourse with his stepdaughter. The Appellate Court concluded that (1) the jury reasonably could not find, on the basis of the defendant's admission and the testimony of the victim, that a stepfather-stepdaughter relationship existed, and (2) § 52a-72a (a)(2) violates the equal protection clause of the federal constitution⁴ because it prohibits sexual intercourse only between individuals of the opposite sex who are related within certain degrees of kinship. See State v. John M., 94 Conn.App. 667, 673-74, 694, 894 A.2d 376 (2006). We conclude that the evidence was sufficient to support the defendant's conviction, and that § 53a-72a(a)(2) applies equally to sexual intercourse between persons of both the opposite sex and the same sex who are related within certain degrees of kindred. Accordingly, we reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts, as summarized in part by the Appellate Court's opinion. On April 22, 2002, the defendant lived with his wife, J, and her daughter from a prior relationship, the victim,⁵ who was seventeen years old. "The victim, a junior in high school, stayed home from school that day due to sickness. The only other person home that morning was the defendant. While watching a movie together in the defendant's bedroom, the defendant engaged in oral sex and vaginal intercourse with the victim." Id., at 668-69, 894 A.2d 376.

The defendant subsequently was arrested and charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(4),⁶ and one count of sexual assault in the third degree in violation of § 53a-72a(a)(2). At the close of evidence in the defendant's jury trial, the defendant moved for a judgment of acquittal on, both counts. The defendant claimed that the evidence was insufficient to establish that, at the time the sexual assault had occurred, he was responsible for the general supervision of the victim's welfare as required by § 53a-71(a)(4), or that he was legally married to the victim's mother as required by § 53a-72a(a)(2). The trial court granted the motion with respect to the first count, but denied the motion with respect to the second count, and submitted the case to the jury for deliberation. Thereafter, the jury found the defendant guilty of sexual assault in the third degree in violation of § 53a-72a(a)(2), and the trial court rendered judgment in accordance with the jury's verdict.

The defendant appealed from the judgment of the trial court to the Appellate Court claiming, inter alia, that the evidence was insufficient to establish beyond a reasonable doubt that he was the victim's stepfather.⁷ The Appellate Court agreed that, under State v. Roswell, 6 Conn. 446 (1827), "in incest cases, the defendant's admission alone is insufficient to establish either a husband-wife or parent-child relationship." State v. John M., supra, 94 Conn.App. at 673, 894 A.2d 376. The Appellate Court concluded that, pursuant to Roswell, the state must submit written documentation evidencing the legality and validity of the familial relationship, such as a marriage license or a birth certificate or, alternatively, the state must adduce testimony from a witness with firsthand knowledge concerning the legality and validity of the familial relationship, such as a witness to the solemnization of the marriage or the birth. Id., at 674, 894 A.2d 376. In so concluding, the Appellate Court rejected the state's claim that Roswell had been overruled sub silentio by § 8-3(1)(A) of the Connecticut Code of Evidence,⁸ which provides that the admissions of a party-opponent may be admitted into evidence against him or her for substantive purposes, because it knew "of no authority indicating that a decision of the Connecticut Supreme Court may be overruled by the promulgation of rules of evidence. Rather, the overruling of Roswell remains exclusively the province of that court." Id., at 673-74 n. 5, 894 A.2d 376. Because neither the victim's birth certificate nor the testimony of a witness with firsthand knowledge concerning the victim's parentage had been admitted into evidence, the Appellate Court concluded that the evidence was insufficient for the jury reasonably to find that J was the victim's mother, despite the defendant's admission and the victim's testimony concerning this fact.⁹ Id., at 674, 894 A.2d 376.

The Appellate Court further concluded that the defendant's conviction under § 53a-72a(a)(2) violates the equal protection clause of the federal constitution because the statute prohibits sexual intercourse between opposite sex individuals, but not same sex individuals, related within certain degrees of kindred. Id., at 676-78, 894 A.2d 376. In arriving at this conclusion, the Appellate Court noted that § 53a-72a(a)(2) criminalizes sexual intercourse between persons who are prohibit ed from marrying under General. Statutes § 46b-21, which, in turn, references only male-female unions within certain degrees of kindred. Id., at 676-77, 894 A.2d 376. Because "kindred persons engaged in homosexual relations are similarly situated to those engaged in heterosexual relations"; id., at 678, 894 A.2d 376; and because the statute's prohibition of heterosexual relations alone is not rationally related to a legitimate governmental interest; id., at 685-94, 894 A.2d 376; the Appellate Court concluded that the statute was unconstitutional. Id., at 694, 894 A.2d 376. This certified appeal followed.

After we granted certification to appeal, we ordered the parties to file supplemental briefs addressing the following question: "[D]id the Appellate Court properly conclude [with respect to the defendant's insufficiency of the evidence claim] ... that the judges of the Superior Court lack the authority to promulgate rules of evidence overruling a decision of the state Supreme Court?" In light of our conclusion in part I of this opinion that the evidentiary rule articulated in Roswell had been overruled sub silentio by subsequent decisions of this court prior to the adoption of the Connecticut Code of Evidence in 1999, we need not and, therefore, do not reach the supplemental question.

I

The state first claims that the Appellate Court improperly concluded that the evidence was insufficient to support the defendant's conviction under § 53a-72a(a)(2). Specifically, the state claims that the Appellate Court improperly relied on State v. Roswell, supra, 6 Conn. at 446, to conclude that either written documentation or the testimony of a witness with firsthand knowledge of the victim's parentage is required to prove the existence of a familial relationship beyond a reasonable doubt because Roswell has been overruled sub silentio by subsequent decisions of this court. The state further claims that, if we conclude that Roswell no longer is good law, then the defendant's admission and the victim's testimony were sufficient to establish the existence of a stepfather-stepdaughter relationship and, therefore, to support the defendant's conviction under § 53a-72a(a)(2). The defendant responds that Roswell remains good law and that the rule articulated therein "is as applicable today as it was nearly two centuries ago." We agree with the state.

We first address the state's claim that Roswell has been overruled by subsequent decisions of this court. The continued viability and applicability of the common-law rule announced in Roswell presents this court with a question of law over which our review is plenary. See, e.g., State v. Colon, 272 Conn. 106, 303, 864 A.2d 666 (2004) (interpretation of common law is question of law), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

In Roswell, the defendant was charged with the crime of incest for engaging in sexual relations with his legitimate daughter. At trial, the state had offered into evidence "the [defendant's] confessions, at various times, that the said [victim] was his daughter; that her mother . . . was his lawful wife; accompanied with evidence that they had cohabited together as husband and wife, uninterruptedly, for more than thirty years last past, and had always been reputed husband and wife; and also, that the said [victim], now about twenty-one years of age, had lived with her reputed parents from the time of her birth." State v. Roswell, supra, 6 Conn. at 447. The defendant objected to the admission of this evidence, claiming that the state must prove the existence of a marriage in fact and that "neither reputation, cohabitation nor the confession of the [defendant] that he was married, could be received." Id. The trial court overruled the defendant's objection, and the jury found the defendant guilty of the crime charged. Id.

On appeal to this court, the defendant claimed that, "whenever a marriage is alleged in an indictment or information, and a marriage is essential to constitute the act a crime, a marriage in fact must be proved; and that the proof must be either by a copy of the record of the marriage, or the testimony of a witness who was present at its celebration: and that at least proof of...