State v. Johnson

944 A.2d 416

107 Conn.App. 188

STATE of Connecticut v. Charles JOHNSON.

No. 28537.

Appellate Court of Connecticut.

Argued February 7, 2008.

Decided April 22, 2008.

Peter J. Bartinik, Jr., Groton, for the appellant (defendant).

Theresa Anne Ferryman, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

BISHOP, BEACH and BERDON, Js.

BISHOP, J.

The defendant, Charles Johnson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and risk of injury to a child in violation of General Statutes § 53-21(a)(2).¹ On appeal, the defendant claims that (1) the trial court abused its discretion in not giving a jury instruction regarding child witnesses, (2) the court abused its discretion in not permitting the defendant to elicit an allegedly inconsistent statement of the victim's mother, (3) there was insufficient evidence to convict the defendant of either of the charges against him, and (4) the state's improper references to religion during final argument (a) deprived him of a fair trial and (b) violated the establishment clauses of the federal and state constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of trial, the victim, C,² was fifteen years old and was a junior in high school. Prior to the tenth grade, C had attended a portion of seventh grade, eighth grade and ninth grade in public schools in California. Before moving to California in the middle of the seventh grade, C had resided in Norwich. C testified that while living in Norwich, her family, which included her mother, father and brother, was active in the Norwich Assembly of God church. The defendant, who was a pastor, was the leader of the congregation. C testified that she attended church services and family and youth social functions on a regular basis, and described a close relationship between her family and the defendant and his family. Families regularly would gather at the defendant's home for church related social functions.

C testified that during one of these social gatherings at the defendant's home, the defendant grabbed her when she ran into him at the top of the stairs on the second floor, started tickling her, and then groped her and put his hands in her pants and his finger in her vagina. C indicated that during the incident, she was kicking the defendant and telling him to stop, which he did when other children came running up the stairs. C further testified that there had been a previous incident at the defendant's home during which the defendant groped her chest. Although C was unable to indicate the specific dates of these incidents, she testified that they happened before her family moved to California. C did not alert her parents or any other adults about the incidents with the defendant because she did not want anyone to know about them.

C testified that she first disclosed the incident to a man with whom she was on a church mission trip while she was living in California. On that same trip, she also told a counselor leader and his wife. Shortly after she returned home from that trip, C told her mother, R, who, in turn, told C's father, about the incidents with the defendant. The police were not contacted because C did not want to take any action at that time. When C and her family moved back to Connecticut, C attended E.O. Smith High School, where she disclosed the incidents involving the defendant to an English teacher after reading an assigned book involving a girl who had been raped and killed. The disclosure to the English teacher led to the involvement of law enforcement.

Thereafter, the defendant was charged with sexual assault in the first degree and risk of injury to a child. The jury found the defendant guilty of both charges, and the defendant received a total effective sentence of ten years of incarceration followed by five years of special parole. This appeal followed.

I

The defendant first claims that the court abused its discretion in failing to instruct the jury as requested on the credibility of child witnesses. Specifically, the defendant claims that the court should have given the requested instruction because C's testimony was the sole evidence against him and that the "he said-she said" nature of the evidence necessitated the charge because the credibility of C was the only issue in the case.³ We are unpersuaded.

The decision of whether to charge on the credibility of a child witness lies in the discretion of the trial court. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). As later noted by this court, the court in James "adopted the prevailing view that allows the trial judge to exercise his or her discretion in determining whether the jury should receive such a special instruction, and, if so, its nature." State v. Abrahante, 56 Conn.App. 65, 80, 741 A.2d 976 (1999).

"No abuse of discretion was found in such matters where the victim was twelve years old at the time of trial. [State v. James, supra, 211 Conn.] at 571, 560 A.2d 426; see State v. Hayes, 20 Conn.App. 737, 748, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). Nor was an abuse of discretion concluded where the witness or victim was between eleven and thirteen years old. State v. Angell, 237 Conn. 321, 330-31, 677 A.2d 912 (1996) (twelve years old); State v. Osborn, 41 Conn.App. 287, 290, 676 A.2d 399 (1996) (eleven and thirteen years old)." State v. Abrahante, supra, 56 Conn.App. at 80, 741 A.2d 976.

At the time of trial, C was fifteen years old. In denying the defendant's requested charge, the court indicated that "[t]he jury has had the opportunity to have seen and heard [C], [and] her intellectual ability and her real age is something for the jury to assess...." Because the court can most accurately determine those instances where a child witness instruction would be appropriate, we cannot conclude that the court abused its broad discretion in refusing to instruct as requested.⁴

II

The defendant next claims that the court improperly prohibited him from questioning R regarding an alleged prior inconsistent statement she made on the basis that it was irrelevant. We find no fault in the court's evidentiary ruling.

During his cross-examination of R, the defendant sought to ask the following question: "Isn't it true that Terry Warner said to you, `do you think [C] was molested by [the defendant],' and [you] responded, `Oh, God, no, we've talked about that.'" Although it is difficult to ascertain the precise purpose of the defendant's offer in this regard, it appears that the defendant wanted to ask the proposed question to show that, at some point in time, R did not think that the defendant had molested C.⁵ The court sustained the state's objection to the offer because what R thought was irrelevant.

"Evidence is admissible only if it is relevant.... The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.... Section 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.... Moreover, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant." (Internal quotation marks omitted.) State v. Skidd, 104 Conn.App. 46, 63, 932 A.2d 416 (2007). "It is the obligation of the party offering the evidence to establish its relevance, and [e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) State v. McSwain, 105 Conn.App. 258, 267, 938 A.2d 595 (2008).

Here, the thoughts or beliefs of R as to whether C had been molested by the defendant had no bearing on the question for the jury of whether the defendant did, in fact, sexually assault C. As the court noted: "[I]t's for the jury to determine the credibility of [C]." Because the opinion of R did not tend to make the sexual assault of C more or less probable, the court properly determined that the proffer was irrelevant.

III

The defendant next claims that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses of which he was convicted. Specifically, the defendant contends that because C's testimony was inconsistent with her prior statements, the jury could not have found him guilty beyond a reasonable doubt. We are not persuaded.

In reviewing sufficiency of the evidence claims, 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." (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn.App. 144, 147-48, 921 A.2d 622 (2007). "The inquiry on appeal is whether the evidence is sufficient to prove the elements of the crimes." State v. Mezrioui, 26 Conn.App. 395, 398, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992). "It [is] for the jury ... to decide whether to believe all or a part of a witness' testimony and to determine the credibility of the witnesses.... When a claim of insufficiency of the evidence is made, an appellate court is not concerned with the credibility of the witnesses but need only decide whether there was evidence from which the jury could conclude that the defendant was guilty beyond...