Argued February 1, 2016
Appeal from Superior Court, judicial district of Stamford-Norwalk, Hudock, J.
Jodi Zils Gagne, with whom, on the brief, was Charles F. Willson, assigned counsel, for the appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).
DiPentima, C. J., and Keller and Prescott, Js.
The defendant, Wanto Polynice, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (2). The defendant claims that this court should reverse his conviction and remand the case for a new trial because (1) he did not receive effective assistance from his trial counsel, (2) the trial court improperly excluded evidence that was relevant to demonstrating that the victim was able to consent to the sexual intercourse underlying his conviction, and (3) the court improperly admitted photographs of the victim’s bedroom. We affirm the judgment of the trial court.
The facts that the jury reasonably could have found may be summarized as follows. The female victim in the present case, who was twenty-one years of age at the time of the events at issue, suffers from a mental disability that resulted in her inability to consent to sexual intercourse. On March 14, 2011, the victim moved into a group residential facility administered by a nonprofit agency that contracts with the Department of Developmental Services to provide services, such as job training, to persons with intellectual and developmental disabilities. Prior to the events at issue, the defendant, an agency employee who was the victim’s job skills coach, was informed of the victim’s disability and agency policy that prohibited sexual contact between employees and clients. The defendant’s job related responsibilities included providing transportation for the victim from her residence to her job site.
On March 22, 2011, the defendant arrived at the victim’s residence to transport her and several other female residents to their job sites. At a point in time at which the defendant was alone with five residents, including the victim, the defendant put his hand on the victim’s back and led her to her empty bedroom. The defendant closed the bedroom door and placed a bean-bag chair against it. The defendant instructed the victim to pull down her pants, and then assisted her in doing so. The defendant removed his pants, pushed the victim onto a bed, and positioned himself on top of her. The defendant engaged in penile-vaginal intercourse with the victim. The victim did not call for help during the encounter, but she was frightened and believed that she was unable to get the defendant off of her. Afterward, the defendant dressed himself and went into a bathroom where he washed his hands. The defendant instructed the victim to pull up her pants and to keep their encounter a secret. After the victim used the bathroom, the defendant transported the victim to her job site at a church.
Later that day, while at her job site, the victim used her cell phone to call 911. She reported that she had been raped and that the police needed to come to the church to arrest the defendant. The victim was transported to a hospital where, among other things, a rape kit was administered. The victim was examined by Elizabeth Horan, a sexual assault nurse examiner. During Horan’s interview of the victim, the victim essentially related to Horan that an employee of her residence had kissed her on the lips, had inserted his penis into her vagina, and had inserted a finger into her anus. During her physical examination of the victim, Horan observed trauma and bleeding of the victim’s hymen, the appearance of redness in the victim’s cervix, a tear and bleeding in the victim’s anal opening, and the presence of recent scratches on the victim’s back. A forensic analysis was undertaken of swabs taken from the victim’s vaginal cavity, genital area, and anal area, all of which revealed the presence of sperm. The results of forensic testing of this material strongly supported a finding that the defendant had sexual contact with the victim. Additional facts will be set forth as necessary.
First, the defendant claims that he is entitled to a new trial because he did not receive effective assistance from his trial counsel. We disagree.
Defense counsel attempted to demonstrate that the sexual contact at issue did not involve force and that, despite the victim’s disability, she was able to consent to it. Also, defense counsel suggested that others, including the victim’s mother, had influenced her recollection of the incident. The defendant argues that his trial counsel was deficient in two ways. The defendant argues that repeatedly during the trial, defense counsel used the term ‘‘victim’’ when referring to the complaining witness despite the fact that the defendant disputed that any crime had been committed. He argues that, by doing so, counsel effectively conceded the issue of his guilt, thereby ‘‘handing the state a guilty verdict.’’ Also, the defendant argues that defense counsel failed to object to an isolated portion of the court’s charge that, he argues, improperly invited the jury to undertake a search for ‘‘truth’’ rather than requiring the jury to hold the state to its burden of proof beyond a reasonable doubt. The defendant claims that an objection at trial would have afforded the court an opportunity to ‘‘amend the instruction’’ and would have afforded him an opportunity ‘‘to challenge it on appeal.’’ It is undisputed that the defendant did not raise these claims, related to the effectiveness of the representation he was provided, before the trial court.
The defendant argues that he properly may raise the claim of ineffective representation in the present direct appeal because the claim presents an issue of law that may be resolved on the basis of the facts appearing in the record. The record, he argues, ‘‘clearly demonstrates the defects in counsel’s performance and the impact of those defects.’’ He argues that no further proceedings are necessary to resolve the issue and that a concern for efficiency should compel this court to resolve the issue on its merits. The state disagrees, arguing on the basis of relevant precedent that the defendant’s ...