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State v. Jerrell R.

Court of Appeals of Connecticut

January 29, 2019

STATE OF CONNECTICUT
v.
JERRELL R. [*]

          Argued October 9, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of sexual assault in the first degree and unlawful restraint in the second degree, and with two counts of the crime of risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Pavia, J.; verdict and judgment of guilty of unlawful restraint in the second degree and risk of injury to a child, from which the defendant appealed to this court. Affirmed.

          Matthew C. Eagan, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

          Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Colleen P. Zingaro, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Lavine and Harper, Js.

          OPINION

          HARPER, J.

         The defendant, Jerrell R., appeals from the judgment of conviction, rendered following a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), risk of injury to a child in violation of § 53-21 (a) (2), and unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a). On appeal, the defendant claims that (1) his conviction of both risk of injury to a child charges violate his constitutional protection against double jeopardy and (2) the prosecutor made improper remarks to the jury during closing and rebuttal arguments that deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The victim, the victim's mother, and the victim's two siblings lived on the first floor of a six family home. The defendant was the father of both the victim, who was six years old, and the victim's sister. On the evening of March 7, 2015, the defendant sent text messages to the victim's mother, asking if he could come to her home. The victim's mother acquiesced, and the defendant arrived twenty minutes later. After watching television and conversing with the defendant and the victim in the bedroom of the victim's mother, the victim's mother left the room to shower.

         After approximately eight minutes, the victim's mother heard the victim screaming. At first, the victim's mother did not think anything of the screaming because she believed that the defendant and victim were just playing. After realizing that the victim was calling for help, the victim's mother ran out of the bathroom and toward her bedroom, where the door was partially shut. Upon opening the door, the victim's mother witnessed the defendant holding the victim by the face and pinning her against the wall while her pants were halfway down. After the victim's mother returned to the bedroom, the defendant went into the kitchen, got on his knees, and started crying and pulling on his hair. At that point, the defendant left the home after the victim's mother told him to leave. The victim later revealed in a forensic interview that while her mother was in the shower, the defendant had removed her pants, touched her vagina, and forced her head toward his exposed penis.

         After the defendant left the home, the victim described her encounter with the defendant to her mother, who then tried to reach the defendant via phone in an attempt to have him come back to the house. After he stopped answering text messages, the victim's mother contacted the police, who subsequently interviewed the victim at her home. The victim's mother again urged the defendant to come back to the house, but he refused once he came close to the home and noticed police cars parked outside. The victim subsequently was transported to the hospital, accompanied by her mother and the responding police officers. In an attempt to get the defendant to come to the hospital, the victim's mother sent a text message to the defendant saying that the victim had suffered an asthma attack and was going to the hospital.

         The defendant later arrived at the hospital, where he spoke with police officers after waiving his Miranda[1]rights. During questioning, the defendant claimed to be concerned that other men were touching his daughter inappropriately, and he admitted that he might have touched the victim's vagina. Additionally, the defendant later conceded in an interview with a social worker from the Department of Children and Families that he restrained the victim and may have touched her vagina by accident.

         The state originally filed a seven count information after the victim's two siblings also alleged that the defendant had inappropriate sexual contact with them. After one of the victim's siblings declined to testify at trial, the state filed an amended information, charging the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), risk of injury to a child in violation of § 53-21 (a) (1), risk of injury to a child in violation of § 53-21 (a) (2), and unlawful restraint in the second degree in violation of § 53a-96 (a). All of these charges related to the incident with the victim.

         At trial, the jury found the defendant not guilty of sexual assault in the first degree and guilty of unlawful restraint and both counts of risk of injury to a child. The court subsequently sentenced the defendant to a total effective sentence of eighteen years imprisonment, execution suspended after eight years, followed by twenty-five years of probation. This appeal followed. Additional facts will be set forth as necessary.

         I

         First, the defendant claims that his conviction of risk of injury to a child under both § 53-21 (a) (1)[2] and (2)[3] violates his constitutional protection against double jeopardy because the offenses arose from the same transaction and, pursuant to Blockberger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), both offenses required proof of substantively identical elements. We disagree.

         As a preliminary matter, the defendant acknowledges that he failed to raise the present claim before the trial court. The defendant argues, however, that his unpreserved claim nonetheless is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding, ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail.'' (Emphasis in original; footnote omitted.) State v. Golding, supra, 239-40. ‘‘The first two steps in the Golding analysis address the review ability of the claim, while the last two steps involve the merits of the claim.'' (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007).

         The claim is reviewable pursuant to Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Urbanowski, 163 Conn.App. 377, 386, 136 A.3d 236 (2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017). Moreover, the defendant claims that he has received duplicative punishments for the same offense in a single trial. ‘‘A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial . . . .'' (Internal quotation marks omitted.) Id., 386-87. Because the defendant's claim is reviewable, we next address its merits.

         We first set forth the applicable standard of review and relevant legal principles that guide our analysis. ‘‘A defendant's double jeopardy challenge presents a question of law over which we have plenary review. . . . The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This ...


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