State v. Nichols

317 A.3d 861

226 Conn.App. 359

STATE of Connecticut

v.Robert Lee NICHOLS

(AC 46102)

Appellate Court of Connecticut.

Argued May 15, 2024

Officially Released June 18, 2024

Michael S. Taylor, with whom was Brendon P. Levesque, for the appellant (defendant).

Bharbara Viegas Rocha and Connor R. Reed, certified legal interns, with whom were Ronald G. Weller, senior assistant state’s attorney, and, on the brief, Sharmese L. Walcott, state’s attorney, and Michael W. Riley, senior assistant state’s attorney, for the appellee (state).

Elgo, Moll and Prescott, Js.

MOLL, J.

[1] ₃₆₁The defendant, Robert Lee Nichols, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2009) § 53a-73a (a) (1) (A)¹ and risk of injury to a child in violation of General Statutes § 53-21 (a) (2).² The defendant claims that (1) the trial court abused its discretion in denying his motion for a mistrial predicated on an outburst by the victim³ while the defendant was testifying at trial and (2) there was insufficient evidence to support the conviction of sexual assault in the fourth degree. We disagree and, accordingly, affirm the judgment of conviction.

₃₆₂The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the defendant’s claims. The victim and his mother became acquainted with the defendant in 2007 while the victim attended an after-school program operated by the defendant. Additionally, the victim participated in a summer program also operated by the defendant. In the summer of 2010, the victim was exhibiting behavioral problems, including struggling to control his temper, getting into fights, and having arguments with his mother, who was raising the victim as a single mother. The victim’s mother discussed the victim’s issues with the defendant and his wife, Tamara Nichols (Tamara), both of whom offered to have the victim live with them for two weeks to help address his ongoing problems. The victim’s mother agreed to the arrangement, and the victim proceeded to live with the defendant and Tamara in their home in Manchester for approximately ten days during the summer in 2010. At that time, the victim was eleven years old and the defendant was thirty-one years old.

When the victim first arrived at the defendant’s home, the defendant permitted the victim to call his mother only three times per day. Nevertheless, during the first night, the victim, feeling scared and homesick, called his mother in violation of the defendant’s rule. The following day, the victim’s mother mentioned to the defendant that the victim had called her the previous night. Thereafter, the defendant prohibited the victim from calling home at all.

The victim engaged in various activities during the daytime while staying at the defendant’s home. On his second day at the defendant’s home, the victim performed landscaping work outside. Afterward, the victim went inside and showered. When the victim exited the shower, he discovered that the defendant was in the bathroom with him. The defendant then repeatedly beat ₃₆₃the victim’s buttocks with his hands. After the victim had dressed himself, the defendant led the victim to the defendant’s bedroom and made the victim sleep in bed with both the defendant and Tamara. The victim had slept in a guest room the previous night.⁴

On the victim’s third day at the defendant’s home, the victim again (1) was beaten by the defendant in the bathroom following a shower and (2) slept in bed with the defendant and Tamara in the defendant’s bedroom. During the third evening, while in bed with the victim and Tamara, the defendant unbuttoned the victim’s pants and rubbed the victim’s legs, rubbed the side of the victim’s buttocks, and repeatedly touched the victim’s penis. These events reoccurred every night thereafter during the victim’s stay at the defendant’s home, except for Sundays. At one point, Tamara expressed her discomfort with the defendant’s conduct; however, the defendant told her to "shut up," that "this is his house," and that "[h]e does what he wants."

Prior to the end of his stay at the defendant’s home, the victim conveyed to the defendant that he intended to report the defendant’s actions. The defendant responded by indicating that he knew the victim’s mother and would find her if anything happened. This statement made the victim feel threatened and concerned that the defendant was going to harm his mother After the victim had returned to his home following his stay with the defendant, the victim’s grandmother noticed injuries on his body. When the victim’s grandmother inquired about the injuries, the victim, feeling worried about his mother, told his grandmother that he had injured himself by falling.

In 2019, Detective Claire Hearn received a complaint from the victim, which prompted her to commence an ₃₆₄investigation with regard to the events that had occurred in the summer of 2010. After taking a statement from the victim, Hearn prepared an arrest warrant for the defendant. The defendant subsequently was arrested, and in its operative amended long form information (operative information), the state charged the defendant with two counts of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A) and one count of risk of injury to a child in violation of § 53-21 (a) (2).

The matter was tried to a jury on September 26, 2022. During its case-in-chief, the state called as witnesses (1) the victim, (2) the victim’s mother,⁵ and (3) Hearn.⁶ During the defendant’s case-in-chief, the defense called as witnesses (1) the defendant and (2) Tamara. The trial court, Gustafson, J., admitted two exhibits in full, namely, a photograph submitted by the state and a video recording submitted by the defendant. During trial, defense counsel orally moved for a mistrial on the basis of an outburst by the victim that had occurred during the defendant’s direct examination. Following argument, the court denied that motion. The next day, the jury found the defendant guilty on all counts. On October 17, 2022, the defendant filed a postverdict motion seeking (1) a judgment of acquittal on the two sexual assault counts for lack of sufficient evidence or, in the alternative, (2) a new trial on the ground that the court had deprived him of a fair trial in denying his motion for a mistrial. On November 22, 2022, the court denied that motion.⁷

₃₆₅On November 29, 2022, after vacating the conviction of sexual assault in the fourth degree as alleged in count two of the operative information,⁸ the court sentenced the defendant to a total effective sentence of twenty years of incarceration, execution suspended after eight years, five years of which was a mandatory minimum, followed by ten years of probation. This appeal followed. Additional procedural history will be set forth as necessary.

I

[2] The defendant first claims that the trial court abused its discretion in denying his motion for a mistrial stemming from an outburst by the victim while the defendant was testifying at trial. We disagree.

The following additional procedural history is relevant to our resolution of this claim. On direct examination, the defendant testified that, while the victim was at his home during the period in question, the victim ₃₆₆experienced an issue with showering. In particular, the defendant testified: "The issue with showering was, ah, prior to [the victim] coming to arrive at my home that weekend, I was asked by [his] mom if it was possible for me to help show [the victim] how to take a shower because, up to that point, [the victim] had refused and had never done it. And [the victim’s mother] just wanted to know if it was possible, could I help him. So, I told her okay. Ah, you know, I’ll try and we’ll see."⁹

Immediately following that testimony, the trial transcript reflects that (1) there was "some banging in the courtroom," (2) the victim stated, "[t]his is bullshit,"¹⁰ (3) the marshal in the courtroom conferred with the victim, and (4) counsel approached the bench for an off-the-record conversation. Following the off-the-record conversation, the court issued the following instruction to the jury: "So, ladies and gentlemen of the jury, outbursts in court are not to be considered as evidence and be disregarded by you. Thank you." Defense counsel then continued with the defendant’s examination.

Later in the afternoon, following a lunch recess, defense counsel orally moved for a mistrial on the basis of the victim’s outburst during the defendant’s testimony.¹¹ Defense counsel argued that (1) the victim and his mother were observed loudly speaking within the hearing of the jury, (2) at least two jurors were watching and listening to the victim and his mother, rather than watching the defendant testify, and (3) the victim left the courtroom while yelling an expletive. Defense counsel maintained that, as a result of the victim’s conduct, ₃₆₇the defendant’s right to a fair trial had .been irreparably harmed. The state responded that the court’s curative instruction to the jury immediately after the victim’s outburst had cured any harm suffered by the defendant. Following argument, the court orally denied the motion for a mistrial. The court stated that, (1) during the defendant’s testimony, the court observed the victim abruptly leave the courtroom while looking "demonstrably upset," although the court could not hear what the victim had said and did not hear anything else, (2) the court, while paying "pretty careful attention," did not observe the jury exchange looks with either the victim or his mother during any testimony, and (3) the court "anticipate[d] [that] it won’t happen again," as the state had spoken to the victim and his mother¹² and, as the court iterated, "the decorum that we need in the courtroom is nothing but professionalism." The court further stated that it had instructed the jury...