State v. Russo

221 Conn.App. 729

303 A.3d 279

STATE of Connecticut v. Phillip RUSSO

AC 45314

Appellate Court of Connecticut.

Argued April 18, 2023

Officially Released October 3, 2023

Jeffrey C. Kestenband, Middletown, for the appellant (defendant).

Timothy F. Costello, supervisory assistant state's attorney, with whom, on the brief, were Michael A. Gailor, state's attorney, Jeffrey Doskos, former supervisory assistant state's attorney, and Kevin M. Shay, former senior assistant state's attorney, for the appellee (state).

Prescott, Elgo and Seeley, Js.

SEELEY, J.

Following a conditional plea of nolo contendere, made pursuant to General Statutes § 54-94a, ¹ the defendant, Phillip Russo, appeals from the judgment of conviction of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (8). ² The defendant entered his conditional plea following the court's denials of his two motions to dismiss, the first of which alleged that the facts set forth in the arrest warrant affidavit were insufficient to sustain a charge alleging a violation of § 53a-71 (a) (8), and the second of which claimed that § 53a-71 (a) (8) is unconstitutionally overbroad. In connection with his first motion to dismiss, the defendant specifically argued that the arrest warrant lacked probable cause that he committed a crime because the allegations in the arrest warrant affidavit did not establish that he was a "school employee" for purposes of § 53a-71 (a) (8). As to his second motion to dismiss, the defendant contended that the statute impermissibly criminalizes a range of consensual romantic relationships that the state has no legitimate basis to regulate. We are not persuaded by the defendant's claims and, therefore, affirm the judgment of conviction.

On December 2, 2021, the state recited the following facts prior to the trial court's acceptance of the defendant's plea of nolo contendere. The defendant was employed as an assistant soccer coach for a girls soccer team at a local public high school. The victim ³ attended this high school and was a player on the girls soccer team. In November, 2018, the victim, then seventeen years old, babysat the defendant's children. After the forty year old defendant returned home, he watched television with the victim, and the two eventually engaged in sexual intercourse. The defendant and the victim continued their sexual relationship for the remainder of the school year. During this period, the victim remained a student at the high school but was no longer a member of the soccer team as a result of the season ending.

After a police investigation, the defendant was arrested on October 23, 2019, and charged with sexual assault in the second degree in violation of § 53a-71 (a) (9) (A). ⁴ The state subsequently charged the defendant by substitute information with sexual assault in the second degree in violation of § 53a-71 (a) (8). The defendant subsequently filed two motions to dismiss the information, both of which the court denied. Thereafter, the defendant entered a plea of nolo contendere that was conditioned on his right to appeal the denials of his motions to dismiss. On February 10, 2022, the court sentenced the defendant to a term of incarceration of four years, execution suspended after nine months, with a five year period of probation. ⁵ Additional facts will be set forth as necessary.

I

The defendant's first claim challenges the court's denial of his first motion to dismiss, in which he alleged that the facts set forth in the arrest warrant affidavit were insufficient to support a finding of probable cause that the defendant committed the crime of sexual assault in the second degree in violation of § 53a-71 (a) (8). Specifically, he argues that the arrest warrant affidavit failed to establish probable cause that he was an employee of the high school, as that term is defined by General Statutes § 53a-65 (13), ⁶ at the time he engaged in sexual intercourse with the victim and, therefore, that his conduct did not constitute a violation of § 53a-71 (a) (8). The state responds, inter alia, that the arrest warrant affidavit and the proffer to the court contain sufficient factual allegations to establish probable cause to prosecute the defendant for violating § 53a-71 (a) (8). We agree with the state.

The following procedural history and additional facts are necessary for the resolution of this claim. On October 22, 2019, the police prepared an application for an arrest warrant on the ground that the defendant had violated § 53a-71 (a) (9) (A). The affidavit attached to the arrest warrant (arrest warrant affidavit) contained the following allegations. ⁷ The defendant began the process of building an emotional connection with the victim when she was a sophomore and fifteen years old. He gave her advice regarding her relationship with her then boyfriend, as well as other matters. Their sexual relationship began in November, 2018, after the end of the soccer season, and continued through August, 2019. The high school principal stated to the police that the defendant had resigned his position as a coach of the high school girls soccer team following their meeting in May, 2019, due to his travel associated with his employment as a pharmaceutical representative and his recent move. ⁸ The defendant spoke with the affiant at the police department regarding his relationship with the victim and provided a verbal statement that was video and audio recorded, in which he stated "that he maintained his position as the assistant girls soccer coach at [the high school] from 2012 until 2019" and admitted to having a sexual relationship with the victim. The defendant also acknowledged that he knew the victim was seventeen years old at the time when their sexual relationship began. The court signed the warrant on October 22, 2019, after concluding that there was probable cause that the defendant had violated § 53-71 (a) (9) (A). The defendant was arrested the next day. ⁹

On April 28, 2021, the state filed a substitute information charging the defendant with violating § 53a-71 (a) (8). On May 13, 2021, the defendant filed his first motion to dismiss pursuant to Practice Book § 41-8 (2). ¹⁰ Specifically, the defendant challenged the allegations contained in the affidavit attached to the arrest warrant, asserting that the allegations concerned "activity which does not violate ... [§] 53a-71 (a) (8)." The defendant argued that the allegations in the affidavit established that his sexual relationship with the victim did not begin until the soccer season, and the victim's high school soccer career, had concluded. He further argued that, because the soccer season had ended and he no longer was coaching the soccer team during the period of the sexual relationship with the victim, there were no facts to support an allegation that he was a school employee as defined by § 53a-65 (13).

On June 9, 2021, the state filed a response to the first motion to dismiss. It countered that "[t]he employment relationship of the defendant during this time frame is an essential element of the charge. In light of all the potential evidence that the state seeks to admit, this is not a defense that can be determined without a trial on this issue." Additionally, the state noted its intention to present evidence regarding the defendant's attendance at a January, 2019 soccer banquet, his participation at fitness drills for the high school girls soccer team in the spring of 2019, his discussions with the head coach of the high school girls soccer team in the spring of 2019, his attendance at a meeting in June, 2019, with the high school administration regarding his alleged relationship with the victim, and his oral resignation of his position as an assistant coach for the soccer team at that meeting.

On July 14, 2021, the court held a hearing on the defendant's motions to dismiss. Defense counsel noted that the prosecution initially began with the charge that the defendant had violated § 53a-71 (a) (9), but the state subsequently filed a substitute information alleging that he violated § 53a-71 (a) (8). Defense counsel then argued that the defendant's responsibilities as a coach concluded at the end of the soccer season, before his alleged relationship with the victim began. Specifically, defense counsel claimed that the defendant was paid about one week after the end of the season, and he then returned various equipment to the school. Defense counsel further stated that the defendant's primary employment was in pharmaceutical sales and not as a teacher in the school system. Defense counsel concluded by stating that "what's in the affidavit doesn't support the offense that's being alleged under [ § 53a-71 (a) (8) ]."

The prosecutor countered that, although the defendant disputed the contention that he was a school employee at the time of the sexual relationship with the victim, the resolution of that issue was to be made by the fact finder at the time of trial, rather than via a motion to dismiss filed pursuant to Practice Book § 41-8. Defense counsel responded that he was not claiming a lack of sufficient evidence but, rather, that the information itself was defective because the conduct alleged did not fall within the parameters of § 53a-71 (a) (8).

On September 29, 2021, the court, Dewey, J. , issued a memorandum of decision denying the defendant's first motion to dismiss. The court stated that "[t]he defendant in the present matter asserts that he was not an employee of [the high school] when the sexual relationship began because his employment terminated at the end of the soccer season." The court further described this as a "key inquiry" for the consideration of the jury. The court then discussed cases from other jurisdictions that addressed the time frame of employment for purposes of establishing liability pursuant to statutes similar to § 53a-71 (a) (8). Ultimately, the court denied the defendant's motion to...