January 16, 2018
information, charging the defendant with the crimes of sexual
assault in the first degree, sexual assault in the second
degree, and of delivery of alcohol to a minor, brought to the
Superior Court in the judicial district of New London and
tried to a jury before the court, Jongbloed, J.;
verdict of guilty of sexual assault in the second degree and
delivery of alcohol to a minor; thereafter, the court denied
the defendant's motion for a judgment of acquittal and
rendered judgment in accordance with the verdict, from which
the defendant appealed to this court. Affirmed.
P. Fiengo, for the appellant (defendant).
Theresa Anne Ferryman, senior assistant state's attorney,
with whom was Michael Regan, state's attorney, for the
Alvord, Prescott and Beach, Js.
defendant, Jarah Micah Davis, appeals from the judgment of
conviction, rendered after a jury trial, of one count of
sexual assault in the second degree in violation of General
Statutes § 53a-71 (a) (3) and one count of delivery of
alcohol to a minor in violation of General Statutes §
30-86 (b) (2). On appeal, the defendant claims that (1)
the evidence admitted at trial was not sufficient to prove
beyond a reasonable doubt that the alleged victim was
physically helpless within the meaning of General Statutes
§ 53a-65 (6) as required for a conviction of sexual
assault in the second degree, and (2) the trial court
improperly denied his pretrial motion to dismiss the second
count of the state's substitute information charging him
with sexual assault in the second degree. We disagree and,
accordingly, affirm the judgment of the trial court.
jury reasonably could have found the following facts. On May
22, 2015, the victim, M,  attended a graduation ceremony for her
cousin. M was sixteen years old at the time. Her cousin's
adult sister, K, and her husband, the defendant, were also in
attendance. Both K and the defendant are approximately ten
years older than M.
the ceremony, K's parents hosted a graduation party for
friends and family at their home. M consumed two beers at the
party. At some point, K invited M to stay the night at her
house. M had never been to K's house before and thought
it would be fun.
her parents' permission, M left the party with K and the
defendant around 11 p.m. After arriving at the
defendant's house, K gave M some comfortable clothes in
which to change. K then opened a bottle of wine and she and M
both drank a glass.
after, K showed M the finished basement. She had converted it
into a ‘‘man cave'' for the defendant,
who was in the military, while he was deployed. The room
featured a bar stocked with various types of hard alcohol.
few hours, M, K, and the defendant sat at the bar in the
finished basement talking and drinking. During this time, the
defendant poured M multiple shots of hard liquor, as well as
a small glass of Dewars and vodka. M soon became heavily
intoxicated, which resulted in her stumbling, slurring her
words, and having blurred vision.
point, K went upstairs to check on her young son, leaving M
and the defendant alone. When K did not return, the defendant
went upstairs and found her sleeping in their bedroom.
seeing that K was asleep, the defendant went back downstairs,
took M's hands, and began dancing with her. The two then
began kissing. The defendant then pushed M against the couch,
put his hands down her pants, and began digitally penetrating
her vagina. M repeatedly told the defendant to stop and
attempted to push him off of her. She had difficultly
physically resisting him, however, given her level of
thereafter, M found herself lying on her back on the floor of
the basement. The defendant then lifted M's legs,
took off her pants and underwear, and began penetrating her
vagina with his penis. At that point, M was so intoxicated
that she was unable to move or speak.
the assault, the next thing M recalled was that she was on
the couch in the defendant's basement and was vomiting on
herself. The defendant took M upstairs, undressed her, and
put her in the shower. After showering, M went to sleep in a
next morning, M was awakened by K, who had laundered her
dirty clothes. M did not tell K about the assault because she
was ‘‘still processing it and was
that afternoon, while M and her mother were driving home, M
started crying and told her mother that the defendant
assaulted her. Her mother decided to take M to the hospital,
where she was evaluated for a sexual assault and evidence was
collected. DNA testing of biological samples obtained from M
confirmed that the defendant had sexual intercourse with her.
after, M reported the assault to the police. The defendant
subsequently was arrested and initially charged with sexual
assault in the first degree in violation of General Statutes
§ 53a-70 (a) (1) and delivery of alcohol to a minor in
violation of § 30-86 (b) (2). Five days before jury
selection was scheduled to begin, the state filed a
substitute information in which it additionally charged the
defendant, in a separate count, with sexual assault in the
second degree in violation of § 53a-71 (a) (3).
defendant was subsequently tried before a jury. At trial, the
defendant elected to testify and admitted that he had sexual
intercourse with M but maintained that she had consented to
jury acquitted the defendant of sexual assault in the first
degree but convicted him of sexual assault in the second
degree and delivery of alcohol to a minor. He was sentenced
to nine years' incarceration, execution suspended after
fifty months, followed by ten years of probation. Additional
facts will be set forth as necessary.
defendant first claims that the evidence admitted at trial
was not sufficient to prove beyond a reasonable doubt that M
was physically helpless within the meaning of § 53a-65
(6), as required to obtain a conviction of sexual assault in
the second degree. Specifically, the defendant argues that
M's testimony that she repeatedly had told the defendant
that she did not consent to the sexual conduct negates a
conclusion that she was physically helpless. We disagree.
following additional facts and procedural history are
relevant to the resolution of the defendant's claim. At
trial, M testified that she voluntarily danced with and
kissed the defendant. She further testified that, after a few
minutes of dancing and kissing, the defendant forced his
hands down her pants and began digitally penetrating her. M
resisted the ...