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State v. Elmer G.

Court of Appeals of Connecticut

September 12, 2017

STATE OF CONNECTICUT
v.
ELMER G.[1]

          Argued May 16, 2017

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

          Alvord, Prescott and Pellegrino, Js.

         Syllabus

         Convicted of two counts each of the crimes of sexual assault in the second degree and risk of injury to a child, and of three counts of the crime of criminal violation of a restraining order in connection with his alleged sexual abuse of the victim, his daughter, the defendant appealed to this court. He claimed, inter alia, that the evidence was insufficient to support his conviction of one of the counts of sexual assault in the second degree, which was based on his alleged conduct in compelling the victim to engage in fellatio, and all three counts of criminal violation of a restraining order.

         Held:

         2. The defendant could not prevail on his claim that the evidence was insufficient to support his conviction of three counts of criminal violation of a restraining order because the state failed to prove that the ex parte and temporary restraining orders that were issued applied to the victim or that he knew the parameters of those orders: although the restraining orders identified the victim's mother as the protected person, they also stated that they protected the minor children of the protected person, namely, the victim and her siblings, the court specifically informed the defendant at a hearing that although he could have some contact with the children, that contact was limited to weekly, supervised visits, and, therefore, there was sufficient evidence to prove that the restraining orders prohibited the defendant from contacting the victim outside of their weekly, supervised visits; moreover, although the restraining orders were in English and the defendant spoke Spanish, there was sufficient evidence to prove that he knew the terms of the temporary restraining order and that it prohibited him from contacting the victim outside of the weekly, supervised visits, defense counsel having represented to the court that he was fluent in Spanish and had reviewed the terms of the orders with the defendant, and the court, through a Spanish interpreter, having advised the defendant that his contact with his children was limited, and even if there was an inadequate evidentiary basis for determining that the defendant knew the terms of the ex parte restraining order, the evidence nevertheless was sufficient to support his conviction, as two counts of the restraining order information pertained to conduct that occurred during the effective period of the temporary restraining order, not the ex parte restraining order, and although the conduct alleged in the third count encompassed the effective periods of both restraining orders, there was sufficient evidence presented at trial to prove that the defendant sent a letter to the victim and that she received the letter during the effective period of the temporary restraining order.

         Procedural History

         Two substitution informations charging the defendant, in the first case, with three counts each of the crimes of sexual assault in the second degree and risk of injury to a child, and, in the second case, with three counts of the crime of criminal violation of a restraining order, brought to the Superior Court in the judicial district of Danbury, where the cases were consolidated and tried to the jury before Pavia, J.; verdicts and judgments of guilty of two counts each of sexual assault in the second degree and risk of injury to a child, and three counts of criminal violation of a restraining order, from which the defendant appealed to this court. Affirmed.

          OPINION

          ALVORD, J.

         The defendant, Elmer G., appeals from the judgments of conviction, after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and three counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b. On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of one of the two counts of sexual assault in the second degree and all three counts of criminal violation of a restraining order, and (2) certain prosecutorial improprieties at trial deprived him of his right to a fair trial. We disagree and, accordingly, affirm the judgments of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The victim is the defendant's daughter. The victim was born in Guatemala and lived there until July, 2010. In Guatemala, family members raised the victim and four of her siblings (Guatemalan siblings) while their parents, the defendant and A.N., and four younger siblings (American siblings) resided together in Connecticut.[2]The victim remembered meeting the defendant for the first time in 2007, when she was approximately ten years old. During that visit, the defendant began touching the victim in a sexually inappropriate manner. In the summer of 2010, the defendant arranged for two relatives to bring the victim, who was thirteen years old, to Connecticut illegally. Before she left Guatemala, the defendant told her ‘‘to get a shot for pregnancy, to avoid pregnancies . . . .'' Approximately two weeks after arriving in Connecticut, the defendant resumed his sexual abuse of the victim and compelled her to engage in various sexual acts, including penile-vaginal intercourse and fellatio.

         In June, 2011, the Department of Children and Families (department) conducted an investigation into allegations that the defendant was physically abusing his son, one of the victim's American brothers. In January, 2012, the department conducted another investigation into domestic violence after the victim's brother told someone at school that the defendant had brandished a knife at home, threatened his mother, A.N., and cut A.N.'s leg with the knife. At about this time, the defendant returned to Guatemala for a planned visit. Because the department was concerned about the well-being of A.N. and her children upon the defendant's return from Guatemala, it helped A.N. secure new housing for herself and her children.

         When the defendant learned of these events from relatives, he called A.N. to discuss the situation. Because A.N. was fearful of the defendant coming to her new residence when he returned to Connecticut, on March 2, 2012, she applied for and was issued a two week, ex parte restraining order against the defendant, which protected herself and her children in Connecticut. On March 5, 2012, the defendant received in-hand marshal service of the ex parte restraining order. On March 15, 2012, after a hearing, A.N. was issued a six month restraining order (temporary restraining order) against the defendant, which protected herself and her children in Connecticut. While the ex parte restraining order and the temporary restraining order (collectively, restraining orders) were in effect, the defendant continued to communicate with the victim in a manner that violated these orders.

         After the department became involved with the victim's family in January, 2012, it referred the family to Altagracia Lara, an intensive family preservation clinician with Catholic Charities. During her conversations with the victim, Lara became concerned about the victim's relationship with the defendant and called the victim's pastor, Lourdes Lopez, and encouraged her to talk to the victim. On April 8, 2012, Lopez noticed that the victim was crying after church services and approached her to determine what was wrong. When the victim was not being responsive, Lopez brought the victim into her office, encouraged the victim to tell her what was wrong, and reassured the victim that she could trust her. The victim told Lopez that the defendant was physically and sexually abusing her. Lopez drove the victim home so they could speak with A.N. about her disclosure, and she called Lara, who reported the allegation to the department. The next morning, April 9, 2012, A.N. and Lara brought the victim to the police station to report the sexual abuse. After providing a written statement to the police, the victim was examined by a forensic pediatrician. The pediatrician found ‘‘very deep notches'' in the victim's hymen, which was consistent with vaginal penetration and, after a second examination, diagnosed the victim with a sexually transmitted infection.

         The defendant was subsequently charged in two informations, one alleging, inter alia, that he sexually abused the victim, and one alleging that he violated the restraining orders. In the operative sexual assault information, the defendant was charged with three counts of sexual assault in the second degree and three counts of risk of injury to a child. In the operative restraining order information, the defendant was charged with three counts of criminal violation of a restraining order. After a joint trial on both informations, the jury found the defendant guilty of two counts of sexual assault in the second degree, two counts of risk of injury to a child, and three counts of criminal violation of a restraining order. The jury found the defendant not guilty of one count of sexual assault in the second degree and one count of risk of injury to a child. The court sentenced the defendant to a total effective term of forty years of imprisonment, execution suspended after twenty-five years, followed by twenty-five years of probation. This appeal followed.

         I

         We begin with the defendant's claim that there was insufficient evidence presented at trial to convict him of one count of sexual assault in the second degree based on fellatio and three counts of criminal violation of a restraining order. We conclude that there was sufficient evidence presented at trial to support all of the defendant's convictions.

         ‘‘The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . 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 supports the [finder of fact's] verdict of guilty.'' (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16-17, 115 A.3d 447 (2015).

         A

         The defendant first claims that there was insufficient evidence presented at trial to support his conviction of sexual assault in the second degree based on fellatio. In particular, the defendant argues that the state failed to prove that his penis penetrated the victim's mouth because the victim's testimony was too ambiguous concerning whether penetration occurred. We disagree.

         The following additional facts are relevant to this claim. In count five of the sexual assault information, the state alleged, in relevant part, that ‘‘between July, 2010, and January, 2012, the [defendant] engaged in sexual intercourse with another person, [the victim], by having said person perform an act of fellatio upon him . . . .'' With respect to the charge of sexual assault in the second degree that was based on fellatio, the state engaged in the following colloquy with the victim:

‘‘[The Prosecutor]: And could you just indicate to the ladies and gentlemen of the jury what you remember?
‘‘[The Victim]: He asked me to do oral sex.
‘‘[The Prosecutor]: And what do you remember about that specific event, if you can just tell the ladies and gentlemen of the jury?
‘‘[The Victim]: Always with threats.
‘‘[The Prosecutor]: The actual incident itself, could you describe the incident itself, could you describe the incident?
‘‘[The Victim]: He made me put my mouth in his penis.
‘‘[The Prosecutor]: I'm sorry. Say that again?
‘‘[The Victim]: He made me-he forced me to put my mouth on his penis.
‘‘[The Prosecutor]: Okay. Did-did he actually penetrate your mouth?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: What do you mean? How about your lips?
‘‘[The Victim]: Yes.''

         ‘‘A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and . . . [s]uch other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person . . . .'' General Statutes § 53a-71 (a) (1). The definition of ‘‘sexual intercourse'' includes ‘‘fellatio . . . between persons regardless of sex. . . .'' General Statutes § 53a-65 (2). ‘‘Penetration, however slight, is sufficient to complete . . . fellatio and does not require emission of semen. . . .'' General Statutes § 53a-65 (2). When analyzing our Penal Code's definition of penetration, our Supreme Court has observed: ‘‘ ‘Penetration' is defined as ‘the act or process of penetrating, ' and ‘penetrate' means ‘to pass into or through' or ‘to extend into the interior of . . . .'' (Emphasis in original.) State v. Scott, 256 Conn. 517, 532, 779 A.2d 702 (2001). Thus, to prove sexual assault based on fellatio, ‘‘it is necessary for the state to establish that the defendant intended to insert his penis into the victim's mouth.'' (Emphasis in original.) Id., 533. Sexual acts that do not involve the defendant's penis entering the victim's mouth, such as the act of licking a penis, are insufficient to prove penetration because licking ‘‘involves extending the tongue from the mouth, not inserting the penis into the mouth.'' (Emphasis in original.) Id.

         We conclude that the state presented sufficient evidence to prove that the defendant's penis entered into the victim's mouth to some degree, however slight. The victim testified that the defendant ‘‘asked [her] to do oral sex, '' i.e., ‘‘he forced [her] to put [her] mouth on his penis, '' and she responded affirmatively when the prosecutor asked her if, in doing so, the defendant's penis penetrated her lips. On the basis of this testimony, the jury reasonably could have concluded that the victim performed fellatio on the defendant and that during the course of performing fellatio the defendant's penis passed into her mouth.

         The defendant disagrees, arguing that the victim's testimony that his penis did not penetrate her mouth rendered her testimony concerning penetration too ambiguous as a matter of law to support his conviction. In particular, the defendant relies on State v. Hicks, 319 N.C. 84, 90, 352 S.E.2d 424 (1987). In that North Carolina Supreme Court case, the defendant was charged, inter alia, with a first degree sexual offense on the basis of his alleged anal penetration of the victim. Id., 89-90. At trial, the only evidence of anal penetration was the seven year old victim's testimony that the defendant ‘‘ ‘put his penis in the back of me.' '' Id., 90. Although a physical examination of the victim ‘‘revealed a broken hymen and a genital rash that appeared to be a yeast infection''; id., 86; the examining physician testified that he found no evidence of anal intercourse. Id., 90. The North Carolina Supreme Court concluded: ‘‘Given the ambiguity of [the victim's] testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence) that anal intercourse occurred, we hold that as a matter of law the evidence was insufficient to support a verdict . . . .'' Id.

         The defendant argues that this case is analogous to Hicks because the victim's negative response to the prosecutor's question about whether ‘‘he actually penetrate[d] your mouth'' and affirmative response to the prosecutor's question-''How about your lips?''-rendered her testimony concerning penetration too ambiguous as a matter of law to support his conviction. We disagree. The victim, who was testifying with the assistance of a Spanish interpreter, might simply have misunderstood the prosecutor's first question, and her misapprehension might have been apparent in her demeanor, as observed by the jury, when responding to the prosecutor's questions. In reviewing sufficiency of the evidence claims, ‘‘[w]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.'' (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005). ‘‘It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . [T]he [jury] can . . . decide what-all, none or some-of a witness' testimony to accept or reject. . . . A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible.'' (Internal quotation marks omitted.) State v. Francione, 136 Conn.App. 302, 311-12, 46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012). On the basis of its firsthand observation of the victim's conduct, demeanor, and attitude when answering the prosecutor's questions, the jury reasonably could have construed any ambiguity in the victim's testimony concerning penetration against the defendant.

         In addition, the state elicited more details from the victim about fellatio than were elicited from the seven year old victim in Hicks about the alleged anal sex. Prior to responding to the prosecutor's questions about penetration, the victim testified that the defendant ‘‘asked me to do oral sex'' and that ‘‘he forced me to put my mouth on his penis.'' The jurors, on the basis of their common sense and life experiences, could have reasonably inferred that the seventeen year old victim understood what oral sex under these circumstances ordinarily involves, i.e., a man's penis entering someone's mouth. The jurors also reasonably could have inferred that when she stated that she put her mouth on the defendant's penis-in direct response to the prosecutor's request for specific details about the time she performed oral sex on the defendant-that she did more than simply place the lips of her mouth against the defendant's penis. That is, she placed her mouth on the defendant's penis in a manner that caused his penis to enter into her mouth.

         Accordingly, we conclude that there was sufficient evidence presented at trial to support the defendant's conviction of sexual assault in the second degree based on fellatio.

         B

         The defendant next claims that there was insufficient evidence presented at trial to support his conviction of three counts of criminal violation of a restraining order because the state failed to prove (1) that the restraining orders applied to the victim or (2) that he knew the parameters of the restraining orders. The defendant further claims that the state failed to prove that he sent the victim a letter while either of the restraining orders were in effect.

         The following additional facts are relevant to these claims. The defendant was in Guatemala from January, 2012, into early March, 2012. On March 2, 2012, A.N. was issued an ex parte restraining order against the defendant in anticipation of his imminent return to the United States. The ex parte restraining order identified A.N. as the ‘‘Protected Person'' and prohibited the defendant from, inter alia, contacting ‘‘the protected person in any manner, including by written, electronic or telephone contact . . . .'' With respect to the couple's minor children, the ex parte restraining order (1) stated that ‘‘[t]his order also protects the protected person's minor children''; (2) awarded temporary custody of the couple's minor children to A.N.; and (3) denied the defendant visitation rights. The order listed the names and birthdays of the couple's five minor children residing in the United States, including the victim. The order also stated that a hearing was scheduled for March 15, 2012, at 9:30 a.m., the same day that the ex parte restraining order expired. The defendant received in-hand marshal service of the ex parte restraining order on March 5, 2012.

         On March 15, 2012, A.N. was issued a temporary restraining order against the defendant after a hearing. The temporary restraining order identified the protected person as A.N. and prohibited the defendant, inter alia, from contacting ‘‘the protected person in any manner, including by written, electronic or telephone contact . . . .'' With respect to the couple's minor children, the temporary restraining order stated that (1) ‘‘[t]his order also protects the protected person's minor children, '' and (2) the defendant may have ‘‘[w]eekly supervised visits with [the] children.''

         The terms of the temporary restraining order were reviewed with the parties during the temporary restraining order hearing. Specifically, at the temporary restraining order hearing, the defendant was present and represented by Attorney Thomas Wolff. At the beginning of the hearing, the defendant consented to having an employee from the department serve as a Spanish language interpreter. Additionally, Wolff informed the court that he was fluent in Spanish and that he would ensure that his client, the defendant, understood what was being said during the proceeding. Wolff then stated that he and the victim advocate had reviewed the proposed temporary restraining order with the defendant and that they had answered all of the defendant's questions about the proposed order. Wolff represented that the defendant was no longer contesting the temporary restraining order. Thereafter, the court engaged in the following colloquy with the victim advocate:

‘‘The Court: I told you what was going to be the tenor of my orders, and I asked you to see if you could work out particulars just so that I don't enter something impractical for the parties. Were you able to do that?
‘‘The Victim Advocate: Yes, Your Honor.
‘‘The Court: Okay. Why don't you tell me the essence of what you've worked out.
‘‘The Victim Advocate: What we've agreed upon is that it would be considered a no contact restraining order.
‘‘The Court: As far as mom is concerned?
‘‘The Victim Advocate: As far as mom is concerned.
‘‘The Court: Right.
‘‘The Victim Advocate: Contact with the kids [will] be limited to weekly supervised visits.
‘‘The Court: Contact with minor children weekly, supervised. Yes . . . .
‘‘The Victim Advocate: He would like to visit them as soon as possible, so next week would be the only option available. I provided him with the number, and they both agreed on third party contact regarding the children be made through either [S.G.] or [C.T.].'' (Emphasis added.)

         After further discussion concerning the terms of the order, Wolff agreed with the terms of the order as summarized by the victim advocate. He also reminded the court that the order would pertain only to the defendant and A.N.'s children who resided in the United States, and the court agreed that it had no jurisdiction over the children in Guatemala. The court then instructed the defendant as follows: ‘‘So, with that in mind, I am going to order a temporary restraining order. Now, as to [A.N.] and the five children, sir, you are not to assault, threaten, abuse, harass, follow, interfere with or stalk. You are to stay away from the home of [A.N.], or wherever she's residing, and you're not to contact her in any manner. As far as the children are concerned, you can have contact with your children, but for now we need it supervised. It's to be weekly and supervised. . . . Any contact that you need to have with your wife, or that your wife needs to have with you, will go through a third party, either [S.G.] or [C.T.].'' (Emphasis added.) Thereafter, the defendant began supervised visits with all of his American children except the victim, who refused to attend these visits. The victim testified that the defendant persisted in his attempts to contact her, however, by phone and by sending her messages through her siblings.

         In the operative restraining order information, the defendant was charged with three counts of criminal violation of a restraining order. Count one alleged, in relevant part: ‘‘[The defendant] contacted [the victim] in violation of a restraining order . . . . [The defendant] had knowledge of the restraining order and contacted [the victim] by text message on March 28, 2012 . . . .'' Count two alleged, in relevant part: ‘‘[The defendant] contacted [the victim] in violation of a restraining order . . . . [The defendant] had knowledge of the restraining order and contacted [the victim] by text message on April 10, 2012 . . . .'' Count three alleged, in relevant part: ‘‘[The defendant] contacted [the victim] in violation of a restraining order . . . . [The defendant] had knowledge of the restraining order and contacted [the victim] by letter between March 5, 2012, and April 10, 2012 . . . .''

         At trial, the ex parte restraining order, the temporary restraining order, and a redacted portion of the transcript from the temporary restraining order hearing were entered into evidence. The victim testified that after the restraining orders were issued, the defendant continued to call her and send her text messages on a regular basis but she typically ignored his calls and deleted his text messages. She stated that she specifically recalled receiving a text message from the defendant in March, 2012, because she reported that text message to the police. The victim further explained that she eventually changed her cell phone number in order to avoid the defendant's attempts to contact her. In April, 2012, however, the victim stated that one of her brothers brought her a letter and a new cell phone from the defendant. The victim identified the handwriting in the letter as the defendant's handwriting. She also stated that she received a text message from the defendant on the cell phone that he provided her on April 10, 2012.

         Lara, the family's intensive family preservation clinician, also testified concerning the defendant's efforts to contact the victim while the temporary restraining order was in effect. Lara stated that on March 28, 2012, she went with the victim to the police station to report a text message the defendant sent the victim earlier that day.[3] In addition, Lara testified that when she went with the victim and A.N. to the police station to report the defendant's sexual abuse on April ...


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