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State v. Gerald A.

Court of Appeals of Connecticut

July 3, 2018

STATE OF CONNECTICUT
v.
GERALD A.[*]

          Argued January 3, 2018

         Procedural History

         Two substitute informations charging the defendant in each case with two counts of the crime of sexual assault in the first degree and three counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Colin, J., granted the state's motion for joinder and denied the defendant's motion for severance; thereafter, the court denied the defendant's motion to make an opening statement; subsequently, the matter was tried to the jury; thereafter, the court granted the state's motion to introduce certain evidence; verdicts and judgment of guilty of two counts of sexual assault in the first degree and three counts of risk of injury to a child, from which the defendant appealed to this court. Affirmed.

          Alice Osedach, senior assistant public defender, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Maureen V. Ornousky, senior assistant state's attorney, for the appellee (state).

          Alvord, Bright and Lavery, Js.

          OPINION

          ALVORD, J.

         The defendant, Gerald A., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that: (1) there was insufficient evidence presented at trial to convict him of one count of sexual assault in the first degree; (2) the trial court improperly admitted evidence of his prior misconduct; (3) the trial court improperly granted the state's motion for joinder of two separate cases against him; and (4) the trial court improperly denied his motion to make an opening statement to the jury. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and A (mother) were married in 1980 in Port-au-Prince, Haiti. The couple had two daughters who were born in Haiti, G in 1991 and K in 1993. When the children were young, the defendant moved to the United States. The mother and the children remained in Haiti until 1998, when they moved to Connecticut to join the defendant.[1] The family first lived on Hope Street in Stamford.

         In May, 1999, the mother gave birth to the couple's third daughter, R. Before R's birth, while the mother was pregnant, the family moved to a two bedroom apartment on Adams Avenue. In 2001, the family moved to a bigger apartment on Roosevelt Avenue in Stamford. At about that time, the mother began working two jobs. At most times during the marriage, the mother worked and the defendant was unemployed. Because he did not work outside of the home, the defendant cared for the children while the mother was at work.

         While the family lived on Roosevelt Avenue, the defendant began sexually abusing K, who was six or seven years old.[2] The first incident that K remembers occurred on a weekend day, when the mother was not home. K was preparing to shower, and when she entered the bathroom, the defendant was there, sitting on the edge of the bathtub, and talking on the phone. When K removed her towel and attempted to get into the bathtub, the defendant stopped her. The defendant laid K on his lap and touched her vagina.

         Another incident, also while the family lived on Roosevelt Avenue, occurred when the family was preparing to go to a wedding. When K went ‘‘to see what was taking him so long'' to get ready, the defendant took her into his bedroom. The defendant laid K on the bed, removed her underwear, and began touching her vagina. The defendant ‘‘tried to put his finger inside'' K's vagina, but she ‘‘flinched ‘cause it hurt, '' and he stopped. The defendant put K's underwear back on, and she left his bedroom

         Between 2003 and 2004, the family moved to Myano Lane. On Saturdays, K, who was nine or ten years old at the time, was responsible for cleaning the bathroom. One Saturday, the family was preparing to visit with a relative who was visiting from Pennsylvania. Because K cleaned the bathroom, she showered last. When K finished showering, she went into the bedroom that she shared with her sisters, wearing only a towel. The defendant was in her room. The defendant laid K down on the bed and began sucking on her breasts. The defendant then performed oral sex on K. Afterward, K ‘‘felt so nasty, '' that she showered again.

         On another occasion while the family lived on Myano Lane, K was preparing to attend church on a Sunday morning. Wearing only a towel, K went to the bathroom to shower, but the door was closed. She knocked on the door, and the defendant opened the door and pulled her into the bathroom, shutting the door behind them. The defendant then laid K on his lap and touched her vagina. Afterward, K showered.

         On a fifth occasion, K, who was ten years old at the time, was reading in her room with the door open on a Saturday. The defendant walked by and then came into the room. He asked K what book she was reading, and then put his hands down her shorts and began touching her vagina. When the defendant stopped touching K's vagina and left the room, K thought that he was finished, but the defendant returned with Vaseline on his hand and began touching her vagina again. Afterward, K washed herself with soap and water.

         In May, 2005, the mother purchased a home for the family in Stratford. The defendant left the family home in October, 2007. The mother subsequently filed for divorce.

         In 2012, while she was attending college in California, K disclosed the sexual abuse to G, who recently had given a voluntary statement to the Stamford Police Department in which she alleged that the defendant had sexually abused her during her childhood, beginning at age three. In connection with G's allegations, under docket number CR-12-0177252-T, the defendant was charged with two counts of sexual assault in the first degree and three counts of risk of injury to a child. K returned to Connecticut in May, 2012. When she returned, she went to the Stamford Police Department and gave a voluntary statement regarding the defendant's sexual abuse of her. In connection with K's allegations, under docket number CR-12-0177635-T, the defendant was charged with two counts of sexual assault in the first degree and three counts of risk of injury to a child. The state filed a motion for joinder, which the court granted.

         At the time of trial, the state filed a consolidated ten count long form information charging the defendant with four counts of sexual assault in the first degree and six counts of risk of injury to a child. Counts one through five of the information related to G's allegations, and counts six through ten related to K's allegations. The jury found the defendant guilty of counts six and eight, which charged him with sexual assault in the first degree, and counts seven, nine and ten, which charged him with risk of injury to a child. The jury found the defendant not guilty of counts one through five. The court sentenced the defendant to a total effective term of twenty years incarceration, four of which were a mandatory minimum, followed by twenty years of special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the evidence presented at trial was insufficient to convict him of one count of sexual assault in the first degree. Specifically, the defendant argues that the state failed to prove that he engaged in sexual intercourse with K, within the meaning of § 53a-70 (a) (2), because K did not testify that he digitally penetrated her vagina. We disagree.

         The following additional facts and procedural history are relevant to our resolution of this claim. The state charged the defendant, in count six of the information, with sexual assault in the first degree in connection with an act of abuse he committed against K while the family was living on Roosevelt Avenue.[3] At trial, K testified that the family was preparing to go to a wedding and that the girls had not yet put on their dresses. The defendant was still getting dressed, so K went to the bathroom ‘‘to see what was taking him so long.'' The defendant took K into his bedroom, laid her on the bed, removed her underwear, and began touching her vagina. The defendant ‘‘tried to put his finger inside'' K's vagina, but she ‘‘flinched ‘cause it hurt . . . .'' The defendant put K's underwear back on, and she left his bedroom.

         On cross-examination, the following colloquy occurred:

‘‘[Defense Counsel]: And during any of these incidents, did he penetrate you?
‘‘[K]: Are we talking about [this] one incident?
‘‘[Defense Counsel]: An[y] of . . .
‘‘[K]: Yes, he did when I was living in . . . Roosevelt.
‘‘[Defense Counsel]: Oh.
‘‘[K]: That was the day that, the wedding, he tried to.
‘‘[Defense Counsel]: Well, there's a difference between try and penetrate; right?
‘‘[K]: Well, I was six, so.
‘‘[Defense Counsel]: So, you don't know whether he penetrated you or not at that incident?
‘‘[K]: He tried to when I was at . . . Roosevelt, but he couldn't. . . .
‘‘[Defense Counsel]: There's a difference between tried to penetrate and penetrate. Would you agree with me; right? Try to penetrate and penetrate are two different things; are they not?
‘‘[K]: Well, it depends on what you're talking about.
‘‘[Defense Counsel]: Well, if I attempt to do something, it's different from me doing something; right?
‘‘[K]: Yes.
‘‘[Defense Counsel]: Okay. If I try to do something, it's different from doing it; right?
‘‘[K]: No, it's not different.
‘‘[Defense Counsel]: It's not different?
‘‘[K]: He tried to do something. . . .
‘‘[Defense Counsel]: In any of these occasions did he penetrate you? . . .
‘‘[K]: I was six years old. He tried to, but I clenched. It hurt. Like, he didn't go inside. . . .
‘‘[Defense Counsel]: So, on none of these occasions did he penetrate you with any part of his body; correct?
‘‘[K]: I just said that he tried to in-Roosevelt.
‘‘[Defense Counsel]: I understand that tried part. But on one of these occasions was he successful, how is that, in penetrating you?
‘‘[K]: None of the occasions was he successful.
‘‘[Defense Counsel]: So, he never fully penetrated ...

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