State v. Richard S.

143 Conn.App. 596

70 A.3d 1110

STATE of Connecticut

v.RICHARD S.^*

No. 33173.

Appellate Court of Connecticut.

Argued Nov. 15, 2012.

Decided June 25, 2013.

Sheila A. Huddleston, Hartford, assigned counsel, with whom, on the brief, were Laurie A. Sullivan and Moira L. Buckley, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Terri L. Sonnemann, assistant state's attorney, for the appellee (state).

BEACH, BEAR and SCHALLER, Js.

SCHALLER, J.

The defendant, Richard S., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(4) and one count of sexual assault in the third degree in violation of General Statutes § 53a–72a (a)(2). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal on the ground that there was insufficient evidence to reach a guilty verdict, (2) precluded the admission of evidence relevant to his defense, and (3) denied his motion to suppress his oral and written statements to the police. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The sixteen year old victim, A, was residing in Florida apart from her mother due to a discordant relationship with her mother. While A was living independently, she received a message from the defendant, her father, with whom she had not had contact since she was approximately five years old. After hearing about her current living situation and relationship with her mother, the defendant invited A to come to Connecticut and live with him. The defendant paid for A's transportation from Florida to his home in Connecticut because A could not afford to travel to Connecticut without the defendant's financial assistance. A packed one or two boxes for her stay with the defendant. Although A intended to remain with the defendant for as long as she could to “make up for as much lost time as possible,” she did not know exactly how long that would be. A's mother was unaware that A had left for Connecticut and had retained A's social security card, but the defendant contacted A's mother to inform her of A's arrival. A was welcomed into the defendant's home by the defendant and his family. The defendant supported A during her stay, providing her with food, shelter and transportation. A and her mother spoke periodically by telephone while she was in Connecticut.

Approximately one month after A began living with the defendant, two incidents occurred in which the defendant inappropriately kissed A on her neck. Shortly thereafter, A disclosed these incidents to her friends. A testified that she returned to her father's home because she had nowhere else to go and believed that her only option was to wait until she could contact her mother. On or about May 20, 2007, A and the defendant began drinking alcohol together. After having several drinks, A became intoxicated and went to the bathroom because she felt ill. The defendant followed A and sexually assaulted her in the bathroom.

The next day, on May 21, 2007, A left the defendant's house and went to a nearby store to contact her mother; A was unable to complete the telephone call to her mother because she could not recall the defendant's PIN number used to make long-distance calls. An individual on the street offered a cell phone to A, and she contacted her mother to disclose the sexual assault. A then contacted the police to report the assault and was taken to a hospital where she was examined by a sexual assault nurse examiner who collected physical evidence. Analysis of the evidence revealed that the defendant was the source of the spermatozoa found in A's vaginal smear samples, and further DNA testing confirmed that the defendant was A's biological father. A's mother arrived in Connecticut on May 21, 2007, and took A back to Florida shortly thereafter.

The defendant was arrested and charged with one count of sexual assault in the second degree in violation of § 53a–71 (a)(4) and one count of sexual assault in the third degree in violation of § 53a–72a (a)(2). At the close of trial the defendant moved for a judgment of acquittal on the ground that the evidence was insufficient to establish that he was responsible for A's general supervision and welfare as required by § 53a–71 (a)(4). The court denied the defendant's motion, finding that the state had made a prima facie case and had produced sufficient evidence to submit the question of the defendant's guilt to the jury. The jury found the defendant guilty of both counts. The court sentenced the defendant to a total effective term of fifteen years imprisonment, suspended after eight years, and twenty years probation. This appeal followed. Additional facts are set forth as necessary.

I

The defendant first asserts that the court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support his conviction pursuant to § 53a–71 (a)(4). Specifically, the defendant argues that the evidence demonstrates that he and A had been estranged for a significant portion of her life, and that A was living independently and only visiting the defendant temporarily. According to the defendant, this evidence is not sufficient to prove that he was responsible for A's general supervision and welfare.¹ We conclude that viewing the evidence and reasonable inferences drawn therefrom in the light most favorable to sustaining the verdict, the jury reasonably could have found that the defendant was responsible for A's general supervision and welfare.

We set forth the standard of review and legal principles that guide our analysis. “In reviewing a sufficiency of the evidence claim, 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a [trier's] factual inferences that support a guilty verdict need only be reasonable....

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... 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 [trier's] verdict of guilty.... Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Alberto M., 120 Conn.App. 104, 108–109, 991 A.2d 578 (2010).

Next, we turn to the essential elements of the offense at issue to determine whetherthere is a reasonable view of the evidence that supports the guilty verdict. Section 53a–71 (a) provides in relevant part that “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (4) such other person is less than eighteen years old and the actor is such person's guardian or otherwise responsible for the general supervision of such person's welfare.” Our Supreme Court has previously construed subsection (a)(4) on two separate occasions, first in State v. Burney, 189 Conn. 321, 455 A.2d 1335 (1983),² and again in State v. Snook, 210 Conn. 244, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989).

In Burney, our Supreme Court determined that the statutory terms “responsible” and “general supervision” were ambiguous. State v. Burney, supra, 189 Conn. at 325, 455 A.2d 1335. In further construing these terms, the court concluded that “[w]hile it is clear that a judicial decree is not necessary in order to become responsible for the general supervision of a minor under [§ 53a–71 (a)(4) ], neither is the mere assumption by a third person of the temporary care of a minor enough to bring that third party within the class of persons to whom the statute applies.... [T]o require something more than the performance of acts of a paternal nature by a third person out of the concern for the comfort, health or welfare of the child, would be consistent with the legislative intent to protect the helpless [as suggested by the statute's other subsections].... [T]he legislature intended the categories [‘otherwise responsible for’ and ‘guardian’] to be roughly equivalent, with the obligations and degree of control of the actor over the child ... to be similar to those of legal guardianship.” (Citations omitted.) Id., at 326–27, 455 A.2d 1335.

In Burney, the victim had been staying at the defendant's home for approximately one and one-half months before the sexual assault. The victim's mother claimed that the defendant was the victim's biological father, but his name...