State v. Samuel M.

159 Conn.App. 242

123 A.3d 44

STATE of Connecticut

v.SAMUEL M.^*

No. 36789.

Appellate Court of Connecticut.

Argued Dec. 1, 2014.

Decided Aug. 18, 2015.

Bryan P. Fiengo, with whom, on the brief, was Michael A. Blanchard, New London, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Andrew J. Slitt, assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and SHELDON and SULLIVAN, Js.

Opinion

SHELDON, J.

The defendant, Samuel M., appeals from the judgment of conviction rendered against him on two counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2) and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2) in connection with a series of incidents involving his minor cousin, J. The incidents were alleged to have occurred “on or about June, 2009,” when the defendant was fourteen years old and J was ten years old. Based upon the classifications of the charged offenses and the state's allegation that the defendant had committed them after reaching the age of fourteen, the defendant's case was transferred from the docket for juvenile matters (juvenile docket) to the regular criminal docket pursuant to General Statutes § 46b–127(a)(1).¹ As a result of the transfer, the defendant was tried, convicted and sentenced as an adult.

On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of any of the charged offenses due to severe inconsistencies in J's testimony at trial; and (2) the trial court erred in denying his motion to dismiss the amended information, under which he was prosecuted as an adult, and to transfer his case to the juvenile docket, based upon the state's failure to prove that he committed any of the offenses of which he was convicted after attaining the age of fourteen.² We disagree with the defendant that the evidence was insufficient to support his conviction due to alleged inconsistencies in J's trial testimony. We agree with the defendant, however, that the state failed to prove that he was at least fourteen years old at the time of the offenses, and thus conclude that the court improperly denied his motion to dismiss the amended information and to transfer the matter to the juvenile docket.

The following facts and procedural history are relevant to this appeal. The defendant and J are first cousins who are approximately four years apart in age.³ The defendant, who is the older of the two boys, was born on September 17, 1994. J was born on December 31, 1998.⁴ At the time of the alleged assaults, J's and the defendant's families resided across the street from one another in Windham County. The grandparents of J and the defendant, R and G,⁵ lived on the same street and within walking distance of the two homes. During the school year, J and his older brother spent Tuesday and Thursday afternoons at their grandparents' house while their parents were at work. On the days that the defendant did not have basketball or baseball practice after school, he spent the afternoons at his grandparents' house as well, along with his three siblings. Because of their close proximity, the families frequently met for dinner on Sundays and occasionally vacationed together. The children also played together after school and during the summer months.

In the second to last week of June, 2009, J's mother, S, woke up early one morning, at about 5 a.m., and went downstairs to gather her things to prepare to go to work. At that time, she observed that her cell phone, which had been placed on the charger in the living room, appeared to be lit up as if it had recently been in use. Given the early morning hour, this struck her as odd and prompted her to look through the contents of the cell phone. Upon doing so, she discovered a text message between J and one of his friends. S continued to search the contents of her cell phone and discovered a photograph of J's penis. S immediately woke J, who was still sleeping, and demanded that he explain the photograph. J admitted that he had taken the photograph of his penis, claiming that he had done so at the defendant's request.⁶ Upon further questioning, J disclosed that there had been sexual activity between him and the defendant, but he did not say when the activity had occurred. Following this conversation, S terminated all contact between J and the defendant.

Several weeks later, in September, 2009, S convened a family meeting to make J's grandparents, R and G, and the defendant's family aware of what had taken place. J's aunt also attended the meeting, and at that time she spoke privately with J concerning his allegations against the defendant. J confirmed to his aunt that there had been activity of a “sexual nature” between him and the defendant.

S did not report the matter to the police. Instead, she arranged for J to see a therapist. More than one year later, in August, 2010, J's therapist reported the alleged sexual abuse to the Department of Children and Families. The department then referred the matter to the state police. Detective Patrick Dragon, of the eastern district major crime squad, was assigned to investigate the referral. Psychologist Mary Cheyne conducted a video recorded forensic interview of J.⁷ During the interview, J, who was then eleven years old, described seven separate incidents involving sexual contact initiated by the defendant. According to J, the sexual abuse began “around my end of my fourth grade year.” The incidents were alleged to have occurred on Tuesday and Thursday afternoons when J and the defendant were in their grandparents' care but out of their sight and immediate supervision. J recalled that on five occasions, he and the defendant performed fellatio on one another. When asked to describe the incidents, J stated that the defendant “would make me suck his penis first, and then, like, to pay back, he would suck mine.” On two other occasions J and the defendant allegedly performed anal sex on one another. On each occasion, J claimed the defendant had forced him to submit to the sexual acts by threatening him with a baseball bat.⁸ According to J, “[the defendant] said, if you tell anyone, I'm going to hurt you ... so, me, only being in fourth grade, and him, being, like, what, twelve, no, like, thirteen, actually, I believed him.”

At the conclusion of the interview, Cheyne attempted to get clarification about the timing of the assaults.⁹ J stated that the first incident occurred in the autumn of his fourth grade year and that the sexual activity continued “for a whole year” until the “first day of autumn” of his fifth grade year. When asked which month he thought the last incident occurred, J stated that he believed it was October “because in the forest the leaves were starting to change and fall off.” Near the conclusion of the interview, J stated that the activity had occurred over a span of three months in the middle of his fourth grade year.

On the basis of these facts and interviews with members of J's family, a juvenile arrest warrant for the defendant was issued on December 2, 2011, charging him with sexual assault in the first degree and risk of injury to a child. The juvenile arrest warrant and juvenile summons and complaint alleged that the date of the offense was “on or about June, 2009,” which corresponded with S's discovery of the photograph on her cell phone. On January 10, 2012, the defendant's case was transferred from the juvenile docket to the regular criminal docket pursuant to the mandatory transfer provision, § 46b–127 (a).¹⁰ The state subsequently filed an amended information charging the defendant with fourteen counts of sexual assault in the first degree and one count of risk of injury to a child in connection with seven separate incidents. Seven counts alleged sexual assault by use of force in violation of § 53a–70(a)(1). Seven counts alleged sexual assault of a victim under the age of thirteen when the defendant was more than two years older than the victim in violation of § 53a–70(a)(2). The fifteenth count charged the defendant with risk of injury to a child in violation of § 53–21(a)(2), alleging that the defendant had contact with the intimate parts of a child under the age of sixteen years. The state alleged that each of the seven incidents had occurred on or about June, 2009. The state alleged that the defendant had illegal contact with J's intimate parts “on or about divers dates from in June, 2009....”

The defendant pleaded not guilty to the charges and elected a jury trial. The defendant's trial commenced on July 11, 2013, and concluded on July 17, 2013. The state called six witnesses in its case-in-chief and rebuttal case. The substantive evidence against the defendant was limited to J's testimony.¹¹ J, who was fourteen years old at the time of trial, testified that in June, 2009, he was attending middle school. He testified as to seven incidents of sexual assault that had taken place when he was “nine or ten” years old, that occurred “maybe a month apart,” on Tuesday and Thursday afternoons. On redirect examination, J stated that he could not recall with any certainty when the incidents occurred.

At the close of the state's case-in-chief, the defendant moved the court to dismiss the charges or to render a judgment of acquittal on the ground that the state had failed to establish a time frame for the assaults. Defense counsel argued: “[It is] problematic ... the lack of a time frame.... Now, in our opinion that becomes important because while the state has alleged that June of 2009 is an operative time, there is some testimony that it happened somewhere when he was in fourth grade, but there [has] been no evidence put before this court as to when [J] was in fact in fourth grade.... [T]he best information that I recall is that when [J] was talking about particular ages at about which time this happened, it...