State v. Richard W.

971 A.2d 810

115 Conn.App. 124

STATE of Connecticut v. RICHARD W.¹

No. 28755.

Appellate Court of Connecticut.

Argued February 3, 2009.

Decided June 16, 2009.

Darcy McGraw, special public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Kimberley N. Perrelli, senior assistant state's attorney, for the appellee (state).

LAVINE, BEACH and BORDEN, Js.

LAVINE, J.

The defendant, Richard W., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a)(1), and risk of injury to a child in violation of General Statutes § 53-21(a)(2). On appeal, the defendant claims that (1) there was insufficient evidence to establish that he was guilty beyond a reasonable doubt of attempt to commit sexual assault in the first degree, (2) he was prejudiced by prosecutorial impropriety, (3) his right to due process was violated by expert witness testimony as to the ultimate issue and (4) the state violated his state and federal constitutional rights by failing to disclose exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the first incident giving rise to the charges in this case, the victim lived with the defendant, who is her father, and her mother and brother. One night soon after Christmas, 2002, the then thirteen year old victim was lying in bed when the defendant came into her room staggering, approached her bed and separated the top and bottom of her pajamas, exposing the victim from her knees to her chest. The victim attempted to "wiggle away," but she did not call out because she did not want to get into trouble. She also tried to keep her pajamas on. After the defendant had separated the victim's pajamas, he lowered his trousers to mid-thigh, exposing himself to the victim, and attempted to get into bed with her. When the victim turned away, the defendant pinned her to the bed, lost his balance and fell on the victim. The victim heard a cracking noise in her back and felt extreme pain. When the defendant pushed himself up, the victim was able to free her legs. She tucked her legs to her chest and used her feet to push the defendant away from her. The defendant fell to the floor, striking his head on a piece of furniture. The defendant began to scream and swear. The victim covered herself, fearing that the defendant would approach her again. The victim's mother came into the room and asked what had happened. The defendant stated that he had tripped and fallen and complained about the victim's messy room. The victim did not say anything to her mother about the defendant's behavior because she was scared and confused by the incident; having seen male genitalia for the first time, she felt violated.

The victim continued to suffer pain in her back, her legs felt numb and she had difficulty walking. The victim began to worry, and one month after the incident she told her mother that her back hurt. Her mother took the victim to her pediatrician, Roberta Lockhart, who referred her to an orthopedic surgeon, James Marsh. Marsh was concerned that the victim not sustain any more damage to her back and ordered that she be taken out of school. The victim stayed at home with the defendant, who was not working, for approximately six months. With the exception of the four hours of tutoring she received daily, the victim remained locked in her bedroom until her mother returned from work. The defendant banged on the door of the victim's bedroom and yelled until he gave up and went away. When the victim's mother returned, the victim and the defendant pretended that everything was "normal" and that "nothing had happened." The victim barely slept at night for fear of "what may happen [to her] if [the defendant]" came into her room.

Marsh had prescribed Vicodin for the victim's pain. At some time late in her freshman year of high school and into her sophomore year, the victim abused Vicodin. She did so because it made her "feel better" and she did not "have to care" about what the defendant was doing to her. The victim's cousin became concerned about the victim's abuse of Vicodin and alerted the victim's mother, and the two of them confronted the victim. The victim admitted that she was abusing the drug and agreed to treatment. In September, 2004, the victim spent five days in an inpatient treatment center and received outpatient treatment for several months thereafter. As a result of her back injury and drug abuse, the victim went from being an honors student and athlete to a failing student who had to repeat the tenth grade. She also started cutting herself. After receiving treatment, the victim was able to stop using drugs. At the time of trial, she had been drug free for two years.

During the course of these events, the victim's parents argued constantly. In early 2005, the defendant moved from the family home into an apartment, where the victim and her brother visited the defendant regularly. During one such visit in April or May, 2005, the defendant approached the victim while she was pretending to sleep on the couch. He grabbed the victim's crotch, causing her to open her eyes and exclaim, "What the hell do you think you're doing?" The victim pushed the defendant away from her. The defendant shouted, "You're a whore. You're a bitch. I never touched you." The defendant stormed off to his room where he remained until the victim's mother called for her.

The victim visited the defendant only once more after this incident because she was scared for her brother and did not want him to be alone with the defendant. During the visit, the defendant argued with the victim and her brother. The victim's brother wanted to leave, but the defendant would not permit them to use the telephone. The victim and her brother walked to the home of the victim's boyfriend, where they telephoned their mother. The victim refused to visit the defendant again.

On June 11, 2005, the victim's mother told her that she had to visit the defendant on Father's Day. The victim was fearful of what might happen because she had not spoken to the defendant in almost two months, and she knew "he was [going to] be angry." Faced with the prospect of seeing the defendant again, the victim told her mother of the defendant's sexual abuse. The victim's mother took her to the police station immediately. The victim spoke with Benjamin Trabka, a youth officer detective. The victim also was interviewed at the New Haven police station and was examined by professionals at the child sex abuse clinic at Yale-New Haven Hospital. At the police station and at the hospital the victim disclosed that the defendant had abused her sexually.

On June 12, 2005, Trabka and Detective John Hubyk spoke with the defendant at his home. Initially, the defendant denied touching the victim inappropriately. The defendant stated that he was an insomniac and took Ambien, and that maybe the Ambien caused him not to remember things he did at night. Eventually, the defendant was able to recall that he had gone into the victim's bedroom one night and touched her breasts. The defendant expressed concern that his behavior might have led to the victim's addiction to painkillers and asked if he could apologize to her. Trabka told the defendant that he could not speak to the victim but that he could write her a note, which Trabka would deliver to her. The defendant wrote a note, which was placed into evidence.²

The defendant was arrested and charged in a six count information. After the jury found the defendant guilty of attempt to commit sexual assault and risk of injury to a child, the court sentenced him to twelve years of incarceration, execution suspended after five years, and ten years of probation with special conditions, including ten years of sex offender registration. The defendant appealed. Additional facts will be discussed as needed.

I

We will address the defendant's first and second claims together, as they are intertwined. Briefly stated, the defendant claims that the state failed to produce evidence pursuant to which the jury could have found beyond a reasonable doubt that he was guilty of attempt to commit sexual assault in the first degree. The crux of the claims is that due to the prosecutor's impropriety in (1) failing to put into evidence the victim's medical records that the defendant claims do not support the victim's testimony that he injured her back when he fell on her as she lay in bed in 2002 and (2) arguing to the jury that the defendant injured the victim's back, the defendant was denied due process of law that lessened the state's burden of proof. The defendant's claims lack merit.

The following procedural history is relevant to the defendant's claim. On December 12, 2006, the state filed a six count substitute information against the defendant. In count one of the information, the state alleged that "on or about December 2002 through January 2003, [the defendant] did, under the circumstances as he believed them to be, an act constituting a substantial step in a course of conduct planned to culminate in compelling another person to engage in sexual intercourse by the use of force against such person in violation of [§§ 53a-49(a)(2) and 53a-70(a)(1)]." The jury found the defendant guilty of counts one and six³ and not guilty of counts two through five.⁴ Thereafter, the defendant filed a motion to set aside the verdict, claiming that the verdict was inconsistent. The court denied the motion.

The defendant failed to preserve the claims he now raises and seeks to have his conviction reversed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We...