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State v. Montana

Court of Appeals of Connecticut

January 16, 2018

STATE OF CONNECTICUT
v.
TRAVIS MONTANA

          Argued October 25, 2017

          Jodi Zils Gagne, for the appellant (defendant).

          Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Ann P. Lawlor, senior assistant state’s attorney, for the appellee (state).

          Alvord, Prescott and Lavery, Js.

          OPINION

          ALVORD, J.

         The defendant, Travis Montana, appeals from the judgment of conviction rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2).[1] On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the court abused its discretion in excluding third-party culpability evidence. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In 2012, the victim, J,[2] was living with her three biological siblings and her adoptive father in a small room at a motel in Bridgeport (motel). The room had two beds and two air mattresses. In January, 2012, when the victim was twelve years old, the defendant, who was a friend of the family, moved into the room at the motel with the victim and her family. At some point, the defendant began sharing a bed with the victim.

         One night while the victim was sleeping, the defendant cut a hole in the victim’s pajama pants and digitally penetrated the victim’s vagina. On one other occasion, the defendant attempted to force the victim to perform fellatio. On additional occasions, the defendant forced the victim to engage in vaginal intercourse. The victim’s father, who was ill and on medication, was ‘‘dead asleep’’ during the abuse. The last incident occurred on February 14, 2012. Shortly thereafter, the defendant moved out of the motel. After the defendant left the motel, the victim disclosed the abuse to her older sister and her father. The victim’s father informed the victim’s physician of the abuse during a physical examination. The physician contacted the Department of Children and Families (department), and the case was referred to the Bridgeport Police Department.

         Following a jury trial, the jury returned a verdict finding the defendant guilty of sexual assault in the first degree and risk of injury to a child. The trial court rendered a judgment of conviction in accordance with the jury’s verdict and sentenced the defendant to a total effective sentence of fifteen years incarceration, followed by ten years special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the state presented insufficient evidence at trial to support his conviction of sexual assault in the first degree and risk of injury to a child. Specifically, the defendant asserts that the state’s evidence was insufficient because of inconsistencies in the victim’s testimony.[3] We disagree.

         The standard of review that we apply to a claim of insufficient evidence is well established. ‘‘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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . 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 [trier’s] verdict of guilty.’’ (Internal quotation marks omitted.) State v. Tine, 137 Conn.App. 483, 487–88, 48 A.3d 722, cert. denied, 307 Conn. 919, 54 A.3d 562 (2012).

         The defendant asserts that the state failed to establish his guilt beyond a reasonable doubt because ‘‘[t]here were simply too many inconsistencies’’ in the victim’s testimony and because it was ‘‘not logical to believe that [the defendant] engaged in these acts and no one heard or saw anything at the time.’’[4] The defendant, essentially, is asking this court to assess the credibility of the victim’s testimony and conclude that the state lacked sufficient evidence as a result of the victim’s lack of credibility. This we may not do. ‘‘As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . [W]e must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor, and attitude. . . . Credibility determinations are the exclusive province of the . . . fact finder, which we refuse to disturb. . . . It is well settled . . . that [e]vidence is not insufficient . . . because it is conflicting or inconsistent. . . . Rather, the [finder of fact] [weighs] the conflicting evidence and . . . can decide what-all, none, or some-of a witness’ testimony to accept or reject.’’ (Citation omitted; internal quotation marks omitted.) State v. Douglas F., 145 Conn.App. 238, 243–44, 73 A.3d 915, cert. denied, 310 Conn. 955, 81 A.3d 1181 (2013).

         We conclude that the evidence at trial was sufficient to convict the defendant because the testimony of the victim established the elements necessary to support the defendant’s conviction of sexual assault in the first degree and risk of injury to a child. The victim provided ample graphic testimony of the sexual assaults and it serves no useful purpose to recite her testimony in detail. See State v.Gene C., 140 Conn.App. 241, 246, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013). β€˜β€˜The jury, as sole arbiter of credibility, was free to believe that testimony.’’ ...


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