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State v. Juan C.

Court of Appeals of Connecticut

January 10, 2017

STATE OF CONNECTICUT
v.
JUAN C.[*]

          Argued September 21, 2016

         Appeal from Superior Court, judicial district of Hartford, Bentivegna, J.

          Heather N. Wong, certified legal intern, with whom was Glenn W. Falk, assigned counsel, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state).

          Keller, Prescott and West, Js.

          OPINION

          WEST, J.

         The defendant, Juan C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), [1] and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1).[2]On appeal, the defendant claims that the trial court, Bentivegna, J., improperly (1) refused to grant his request for a continuance of his trial, and (2) denied his motion for a judgment of acquittal as to the first count, sexual assault in the first degree. We affirm the trial court's judgment in part and reverse the judgment in part.

         The jury reasonably could have found the following facts. The defendant is N's[3] biological father and, although N has always lived with her mother, she visited the defendant frequently between her birth in October, 1997, and 2005. During that time, both N and the defendant lived in New York. The defendant later moved to Hartford, and N did not see the defendant from 2005 until the summer of 2008, when he ‘‘popped back up'' at the house of N's mother and asked to spend more time with N. N's mother agreed, and a few weeks later, in July, 2008, the defendant drove to New York to pick up N and brought her to his apartment in Hartford. N was ten years old at the time.[4]

         At some point during the visit, while they were home alone, the defendant called N into his room to watch cartoons on television. The defendant was lying in his bed with only his boxer shorts on, and N was wearing a T-shirt, pajama pants, and underwear. N entered the bedroom, and the defendant asked her to lie on the bed with him, which she did. The defendant then asked N to move closer to him and lie on his chest, which she did. The defendant began rubbing N's back and buttocks over her clothing. He then put his hands under N's pajama pants and underwear and penetrated her vagina with his finger. While doing so, the defendant masturbated with his other hand. N then got off the bed and went back to her own room, sat on her bed, and watched television.

         N called her mother at some point after the incident to tell her that she wanted to go home to New York, but did not disclose what had happened. The defendant claimed that he did not have enough money for gas to drive her home, so N stayed in Hartford for a few more days. After he brought her home, the defendant ‘‘disappeared'' again, and N did not see him for another two years. N did not disclose to anyone that the July, 2008 incident had occurred until October, 2010, when she told her teacher and her mother. Subsequently, New York Child Protective Services (child protective services), the Connecticut Department of Children and Families (department), and the Hartford Police Department became involved, and the defendant was arrested.

         Before the start of the evidentiary portion of the trial, the defendant requested a continuance due to the fact that he had received a department report that morning that mentioned the child protective services investigation, and he wanted time to obtain more information about the New York investigation. The court denied his request and proceeded to trial. At trial, N, her mother, a Hartford police officer, and a licensed clinical social worker testified for the state. At the close of the state's evidence and again at the close of his own evidence, the defendant moved for a judgment of acquittal as to count one, charging sexual assault in the first degree. The court denied the defendant's motion.

         On July 17, 2014, the jury found the defendant guilty on all three counts. The court sentenced the defendant on October 27, 2014, to the following: twenty-five years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the first degree sexual assault conviction; twenty years incarceration with a mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of probation for the risk of injury to a child conviction under § 53-21 (a) (2);[5] and ten years incarceration, execution suspended after five years, and fifteen years of probation for the risk of injury to a child conviction under § 53-21 (a) (1). The court ordered all three sentences to run concurrently for a total effective sentence of twenty-five years incarceration, suspended after twelve years, and fifteen years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant's first claim on appeal is that the court erred in refusing to grant a continuance, which the defendant requested on the morning of trial to allow him to obtain newly discovered information about the child protective services investigation contained in the department protocol. Specifically, the defendant argues that the child protective services investigation records would likely contain material essential to his defense, which would cast doubt on the veracity of N's statements regarding the defendant's prior uncharged misconduct. The state argues that the court did not abuse its discretion in denying the defendant's request. We agree with the state.

         The record reveals the following additional facts and procedural history relevant to this claim. In addition to the allegations that the defendant sexually assaulted N in Hartford in July, 2008, there are also uncharged misconduct allegations that the defendant sexually assaulted N in New York in 2005. The court allowed the state to question N at trial about this uncharged conduct, and she testified that during a visit in New York with the defendant in 2005, while N was seven years old, the defendant sexually assaulted her by fondling her vagina to see if she had ‘‘wet [her]self.'' N did not disclose this incident until October, 2010, when she also told her mother about the July, 2008 Hartford incident.

         There was evidence presented at trial that, shortly after N's disclosure, her mother contacted child protective services in New York, which then opened an investigation into the matter. In an interview with child protective services social worker Kelly Dickinson, N disclosed information about the 2008 Hartford incident only, and nothing about the 2005 New York incident.[6]Child protective services subsequently referred the case to the department because the only allegations were those arising from the Hartford incident.

         Months before the beginning of trial, the defendant received from the state a department form, called Form 737 (form), which the department had sent to the Hartford Police Department to inform the police that the department was conducting an investigation into the July, 2008 Hartford incident.[7] The form states, inter alia, that ‘‘there is a companion investigation in the [s]tate of New York as a result of current allegations, '' and also that N's mother ‘‘reported [to the department] that [N] also reported that when [the defendant] was residing in New York he used to touch her as well.'' The form also included the name and telephone number of the child protective services social worker assigned to investigate the allegations. The defendant's counsel stated that the form was ‘‘original discovery [material] going back to pretrial'' and that he had possessed this prior to the date of trial. There is no evidence that the defendant tried to contact the child protective services social worker or requested any records regarding that investigation.[8]

         On the morning of the start of trial, the defendant received a copy of a the department's investigation protocol (protocol). The protocol contained case notes from a department social worker and included comments made by Dickinson, who had referred the case to the department. According to the case notes, Dickinson reported to the department that N ‘‘did not make any disclosures of any incidents taking place in the Orange County [New York] jurisdiction. [N] did not make any disclosures about anything happening in the Bronx area either; she did not want to talk about it. [Dickinson] reported that [N stated that] nothing happened in Orange [County], and that it happened in Connecticut, however, she was not clear. [Dickinson] reported that [N] stated that she was too young when she visited in the Bronx and she did not want to talk about it. [Dickinson] reported that ‘they, ' meaning her and the police in New York, did not want to press her for [an] interview due to the fact that they did not know [how] many more people she would have to talk to.''

         Upon receiving the protocol, the defendant objected to proceeding with trial and requested a continuance in order to procure additional investigation materials from New York. The defendant's counsel stated: ‘‘There is an indication-it's a hearsay indication because it's the author's report about what he or she was told by what appeared to be state of New York authorities with [child protective services] who are investigating this claim because of [N] and her mother living in New York and that's where the disclosure was made. And that indicates that [N] did make some disclosure to the New York authorities about the incident that we're presently on trial for. . . . [I]n terms of the uncharged misconduct, [N] specifically declined to discuss that issue with the New York authorities. I do not know the reason for that. There's some suggestion by the [department social worker] being told that-something about [N] thought she was too young or didn't remember.''[9]

         Additionally, the defendant's counsel argued: ‘‘[M]ay be a more practical nuts and bolts view of this. [N] testifies. On cross, I ask her: Is it true that you went in and talked to child protective services on the date certain? And she says no or she says, I don't remember, I'm not in a position at the present time to follow that up. I know it seems to have happened, but I know essentially by hearsay. Any of the myriad of things that we have discussed that could be described as exculpatory, I'm in the same position. I'm not properly prepared at this time, having only received the report today, to properly represent [the defendant].'' The state asked the court to proceed with trial.

         In denying the defendant's requested continuance, the court noted, inter alia, that the case had been pending since June, 2011, and, in terms of the defendant's access to child protective services and department reports, that the state's attorney's office had an open file policy, and that the defendant did not file any discovery motions. The court also noted that, although there had been some difficulty communicating with child protective services, the department records, which were available to the defendant at least months before the start of trial, mentioned the investigation done by child protective services in New York.[10] Furthermore, the court noted that N was subject to cross-examination.

         On appeal, the defendant argues that the court abused its discretion in denying his continuance request because the investigation records from child protective services likely contained material essential to his defense. The state argues that the court's denial of the defendant's continuance request was not an abuse of discretion. We agree with the state.

         The standard of review and applicable law relevant to this claim are well settled. ‘‘The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . . Every reasonable presumption will be made in favor of the trial court's proper exercise of discretion. . . . There is nomechanical test for determining whether the denial of a continuance constitutes an abuse of discretion. A reviewing court must consider the particular circumstances of each case, paying special attention to the reasons presented to the trial court at the time the request was denied.'' (Citations omitted; internal quotation marks omitted.) State v. Hamilton, 30 Conn.App. 68, 82-83, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

         A court has the discretion to consider many factors when considering a request for a continuance, including ‘‘the timeliness of the request for continuance; the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant's personal responsibility for the timing of the request . . . . [A]n appellate court should limit its assessment of the reasonableness of the trial court's exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.'' (Citations omitted; internal quotation marks omitted.) State v. Davis, 135 Conn.App. 385, 393-94, 42 A.3d 446, cert. denied, 305 Conn. 916, 46 A.3d 171 (2012).

         After considering the relevant information before the trial court, we conclude that the court did not abuse its discretion when it denied the defendant's motion for a continuance.

         First, the court properly considered the timeliness of the defendant's continuance request. This case had been pending for more than three years, and the defendant requested the continuance on the morning of trial, right before the court began hearing evidence. In considering the timeliness of the request, it is important to note that ‘‘[w]e are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.'' (Internal quotation marks omitted.) Id., 394.

         Second, the court properly considered whether a continuance would have negatively impacted opposing counsel, the witnesses, and the court. The request was made just before N, who lived out of state, took the stand to testify. In addition to N, there were three other witnesses prepared to testify that day, including N's mother, who also lived out of state. Additionally, the parties and the court had invested significant time in this three year old case, and the state's attorney, defendant's counsel, and the court had already spent three days prior to trial selecting the jury, who was prepared to begin hearing evidence that day.

         Third, as to the legitimacy of the reasons proffered in support of the defendant's request, the defendant argued that the continuance was necessary in order to obtain additional information about the New York investigation that could be exculpatory, and that may cast doubt on the veracity of N's testimony at trial. The defendant was merely speculating that any additional information from this investigation would benefit his defense. We have held that it is proper for a court to deny a continuance request, sought in order to obtain discovery evidence, where the benefit of such evidence is speculative. See id., 395.

         In addition, the court properly considered the defendant's personal responsibility for the timing of the request. The defendant's counsel argued that, without more time to obtain further information about the New York investigation, he would not be able to properly represent the defendant. The defendant, however, could have obtained further information well before the start of trial, eliminating any need for the requested continuance. The court noted that the defendant had access to the state's file through the open file policy of the state's attorney's office, and that the defendant could have filed discovery motions to obtain this information well before trial. Additionally, the defendant had in his possession months before trial the department form that referenced the New York investigation and that provided the name of and contact information for the child protective services social worker assigned to the investigation. Therefore, the defendant was on notice well in advance of trial that there had been a New York investigation, and he could have investigated further to procure any other information or documents to assist him in his defense.

         Lastly, the defendant did not specify in his request how long of a continuance he was seeking. Therefore, the court had no indication as to the likely length of delay a continuance would cause. We have held that ‘‘[i]t is . . . within the trial court's discretion to deny a continuance when the length of the delay sought is unspecified.'' State v. Godbolt, 161 Conn.App. 367, 377, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d 621 (2016).

         Accordingly, we conclude that the trial court did not abuse its discretion in refusing to grant the defendant's continuance request.

         II

         The defendant's second claim is that the trial court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction of sexual assault in the first degree as charged in the amended information.[11] Specifically, the defendant contends that the state presented no evidence that he used force to compel N to engage in sexual intercourse, and, therefore, the trial court erred in denying his motion for a judgment of acquittal. The state argues that the court properly denied the defendant's motion because the jury reasonably could have concluded that the defendant had used force to compel the sexual intercourse. We agree with the defendant, and, accordingly, reverse the defendant's conviction of sexual assault in the first degree.

         We first set forth our standard of review and the applicable statutes relevant to this claim. ‘‘The due process clause of the fourteenth amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'' (Internal quotation marks omitted.) State v. Johnson, 165 Conn.App. 255, 288, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). ‘‘A defendant who asserts an insufficiency of the evidence claim bears an arduous burden. . . . 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict. . . . 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 support's the jury's verdict of guilty. . . . If, however, the evidence is insufficient to meet the burden of proof of guilt beyond a reasonable doubt, bearing in mind that the state has the burden of establishing by such proof every essential element of the crime charged, the verdict must be set aside.'' (Citations omitted; internal quotation marks omitted.) State v. Smith, 148 Conn.App. 684, 695, 86 A.3d 498 (2014), aff'd, 317 Conn. 338, 118 A.3d 49 (2015).

         Section 53a-70 (a) (1) provides in relevant part: ‘‘A person is guilty of sexual assault in the first degree when such person . . . compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .'' General Statutes § 53a-65 (7) provides in relevant part: ‘‘Use of force means . . . (B) use of actual physical force or violence or superior physical strength against the victim.'' (Internal quotation marks omitted.) We also note that ‘‘[p]enal statutes are to be construed strictly . . . and not extended by implication to create liability that the legislature did not purport to create. . . . Words and phrases, however, are to be understood according to the commonly approved usage of the language; General Statutes § 1-1 (a); and words used in a criminal statute should not be accorded the narrowest technical meaning in disregard of their context and in frustration of the obvious legislative intent. . . . We have previously acknowledged that the statutory definition of ‘use of force' is clear and that ‘it contains no words not commonly used which might not be understood in their ordinary meaning.' '' (Citations omitted.) State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987).

         The record reveals the following additional facts and procedural history relevant to this claim. Count one of the original information, dated July 2, 2014, charged the defendant with sexual assault in the first degree in violation of § 53a-70 (a) (1) and alleged that ‘‘the defendant compelled another person to engage in sexual intercourse by the use of force against such other person or by the threat of use of force against said person which reasonably caused such person to fear physical injury.'' (Emphasis added.)

         After the close of the state's case, the defendant moved for a judgment of acquittal on all three counts. Thereafter, the court asked the state if, in count one, it was still alleging that the defendant compelled the sexual intercourse by the use of force or by the threat of use of force, to which the state replied that it was pursuing only the use of force element.[12] The court denied the defendant's motion for a judgment of acquittal. Thereafter, on July 16, 2014, the state filed an amended information to reflect the change in count one, [13] which still charged the defendant with sexual assault in the first degree in violation of § 53a-70 (a) (1), but alleged: ‘‘[T]he defendant compelled another person to engage in sexual intercourse by the use of force against such other person.'' (Emphasis added.) The defendant rested without putting on any evidence and renewed his motion for judgment of acquittal as to count one only, sexual assault in the first degree. The court denied the defendant's motion. The jury found the defendant guilty on all three counts.

         At trial, N's testimony was the only direct evidence regarding the alleged events that occurred during the Hartford incident in July, 2008. When questioned by the prosecutor, N testified as follows:

‘‘Q. Now, in July of 2008, while you were visiting your father, the defendant in this case, what happened?
‘‘A. One early morning, I woke up and the defendant was in his room and I woke up to use the bathroom. And he called me in his room to watch cartoons. . . .
‘‘Q. So you walk into his bedroom, and what ...

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