State v. Morales

78 Conn. App. 25

826 A.2d 217

STATE OF CONNECTICUT v. ANGEL MORALES

(AC 21300).

Appellate Court of Connecticut.

Argued February 14, 2003.

Officially released July 15, 2003.

Schaller, Flynn and McDonald, Js.

Martin Zeldis, senior assistant public defender, and Angela L. Ruggiero, special public defender, with whom, on the brief, was Joseph A. Niglio, certified legal intern, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Laura M. Rose, former assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Angel Morales, was convicted, following a trial to the court, of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2).¹ The defendant claims that the trial court's decision was improper because (1) the finding of guilty of risk of injury to a child was factually inconsistent with the court's finding of not guilty of sexual assault in the first degree, (2) the court used constancy of accusation testimony for substantive purposes and (3) the defendant was deprived of his constitutional rights when the court considered his statements to the police, which had been translated for the defendant by a police detective who did not testify. We affirm the judgment of the trial court.

The record discloses the following evidence before the trial court. The victim, R, was a foster child living in the defendant's apartment.² At the time of the charged incident, R was eight years old. The defendant was illiterate and spoke only Spanish. R could speak some Spanish but, apparently, had difficulty communicating with the defendant at times. R was unhappy living with the defendant and his wife for several reasons. She was separated from her sister. The defendant and his wife were strict and reluctant to let R play outside. R did not like the food that they served to her. On Saturday, October 17, 1998, the defendant and R were together in the defendant's living room watching television.

The court specifically found that "the state has proven beyond a reasonable doubt that the defendant, while lying on his back on a couch, had R, a child under sixteen years of age, lay on top of him. While R laid chest to chest upon him, the defendant placed his hand inside the front of R's underwear and sexually assaulted her. The defendant then asked the child how it felt, and she told him that it was uncomfortable. At this point, the child got off the defendant and sat in a different chair in the room. Shortly after R sat down, the defendant got off of the couch, approached R, and pulled her pants and underwear at least partially down. The defendant then looked closely at R's genital area telling her that he wanted, `to see if it was red.' The defendant then told R that, `it was okay' allowed R to pull her pants back up."

The court also had before it evidence of the following facts: R approached one of her teachers on Tuesday, October 20, and told her that the defendant had put his hand down her pants. The teacher and the school's vice principal then had R remain after school, and they contacted the department of children and families. A few days later, Kathleen Barrett of the Children's Advocacy Center at Saint Francis Hospital and Medical Center in Hartford interviewed R about what she had told her teacher. At that time, R repeated the allegations that she had made to her teacher, although she added the detail that the defendant had penetrated her vagina with his finger.

Detective Mack Hawkins of the Hartford police department, having viewed Barrett's interview of the victim, R, went to the defendant's apartment on at least three occasions. Detective Ralph Gonzalez, a Spanish-speaking police officer, went with Hawkins to act as an interpreter between Hawkins and the defendant. The defendant gave two statements to the police. The first statement was made verbally on November 6, 1998. Hawkins typed the statement at his office and returned to the defendant's apartment on November 10. On November 10, these same detectives again met with the defendant. Gonzalez read the defendant's statement to him in Spanish, had him make any necessary changes to it and asked him to sign it. In that first statement, the defendant essentially denied that he had any physical contact with R at all. Also on November 10, however, after the defendant had signed that first statement, he told the police that he had forgotten to tell them something. He gave them some additional information, which was then reduced to a separate typewritten statement, which the defendant signed on November 12. In that second statement, the defendant said that he was lying down on the couch sleeping, and when he woke up and stretched out his hands, by mistake he touched R "in her toto (vagina)."

The defendant was arrested and charged with 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 § 53-21 (2). The defendant requested a trial by the court, not a jury. At that trial, R testified that the defendant was lying on the couch, watching television with her when he asked her to give him a hug. She stated that when she went to give him a hug, he picked her up and put her on top of him. R testified that when she was on top of him, the defendant "took his hand and put it in [her] vagina." R further testified and demonstrated that, after inserting his finger in her vagina, the defendant moved his finger in circles. R's teacher and Barrett were called as constancy of accusation witnesses. The teacher testified that, although R told her that the defendant had touched her genitalia, R did not tell her that he had actually inserted his finger in her vagina.

The court made the following specific findings, which related to its judgment of not guilty on the sexual assault count: "R did volunteer to [her teacher] that the defendant had touched her private part, specifically, with his thumb. R did not report any act of the defendant involving his use of his index finger. Unlike the other inconsistencies in R's account, which the defendant noted during trial, this inconsistency implicates directly the sufficiency of the state's proof on a critical element of one of the crimes, the element of penetration as required under the charge of sexual assault in the first degree. This inconsistency surfaced in the very first statement that R gave to anyone concerning this incident. And in such circumstances this discrepancy necessarily takes on greater significance. The state has not provided the court with any explanation as to how or why the child's account has varied in this regard, nor did R explain during her testimony why the account she provided [her teacher] differed in this important respect. Nor, for that matter, has the state suggested, nor should it have, that [the teacher's] recollection of what R told her was not accurate. [The teacher] testified, on cross-examination, that she had immediately reduced to writing the information she received from R knowing that this written account would be forwarded to the department of children and families. These factors, and I refer here to the child's reference to the defendant's use of his thumb and the initial absence of any claim by the child of any penetration, coupled with other evidence in the case, has left, in the court's mind, a reasonable doubt as to whether the defendant, in assaulting the child, penetrated her vagina."

Hawkins testified for the state as to his interviews of the defendant and the statements signed by the defendant. Gonzalez, the detective who had accompanied Hawkins to those interviews and had translated between the defendant and Hawkins, was not called as a witness by either side.

I

The defendant's first claim relates to the fact that the court found him not guilty of sexual assault in the first degree but guilty of risk of injury to a child. The defendant argues that his alleged misconduct consisted of one continuous act, and so it was factually inconsistent for the court to find that there was a reasonable doubt that there had been penetration for the purpose of proving sexual intercourse under § 53a-70 (a) (2) and yet that there was proof of guilt beyond a reasonable doubt that he had contact with the intimate parts of the child sufficient to violate the risk of injury statute.

A

We begin by noting that the defendant states that he "concedes that the verdicts here are not legally inconsistent." Inexplicably, though, the defendant calls our attention to, and specifically quotes from, several cases involving the very issue of legally inconsistent verdicts. For example, the defendant quotes our Supreme Court's decision in State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000), where the court stated: "The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted." (Internal quotation marks omitted.) Id. To the extent that the defendant presents a claim that the court's verdicts were legally inconsistent, we disagree with the defendant.

"If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other." (Internal quotation marks omitted.) Id. The court found the defendant guilty of risk of injury to a child, in violation of § 53-21 (2), but not guilty of sexual assault in the first degree in violation of § 53a-70 (a) (2).³ To find the defendant guilty of sexual assault in the first degree, the court would have had to find that he had engaged in sexual intercourse with R. Section 53a-65 defines "sexual intercourse"...