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State v. Bumgarner-Ramos

Court of Appeals of Connecticut

February 5, 2019


          Argued October 11, 2018

         Substitute information charging the defendant with the crimes of assault in the first degree, aggravated sexual assault of a minor, risk of injury to a child and manslaughter in the first degree, brought to the Superior Court in the judicial district of Windham, geographical area number eleven, and tried to the court, Swords, J.; judgment of guilty, from which the defendant appealed to this court. Reversed in part; judgment directed.

          Erica A. Barber, assigned counsel, for the appellant (defendant).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Patricia Froehlich, former state's attorney, and Matthew Crockett, former senior assistant state's attorney, for the appellee (state).

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


          DIPENTIMA, C. J.

         The defendant, Carroll L. Bumgarner-Ramos, appeals from the judgment of conviction, rendered after a court trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), aggravated sexual assault of a minor in violation of General Statutes §§ 53a-70c (a) (3) and 53a-70 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of aggravated sexual assault of a minor and (2) his conviction of both assault in the first degree and manslaughter in the first degree violated the constitutional guarantee against double jeopardy. We agree with the defendant with regard to his double jeopardy claim and vacate his conviction of assault in the first degree. We affirm the judgment of the trial court in all other respects.

         The following facts are relevant to the defendant's claims on appeal. The defendant met the victim's mother, Kim F.[1] (Kim), in 2009, when she was four months pregnant with N, the victim. The two began a relationship, and, following the birth of N in June, 2010, the defendant took on a paternal role until his incarceration[2] in August, 2011, at which time the couple's relationship ended. Following his release, the defendant reconciled with Kim in May, 2013, and, shortly thereafter, Kim and N began to stay periodically at the defendant's apartment in Willimantic.

         On June 11, 2013, Ronald Kelly, a pediatrician, performed a routine medical examination of N, who was then three years old. During the examination, Kelly observed ‘‘some big bruises'' on the child's back that Kim was unable to explain. The bruises were diagonal and similar to the shape of three fingers on a person's hand. Kelly also noted that N was acting unusual; ‘‘she was throwing herself on the ground, [and acting] totally out of control.'' Following the examination, Kelly, in accordance with his responsibility as a mandatory reporter, [3] informed the Department of Children and Families (department) that N had unexplained bruises.[4]

         The department assigned a social worker, Rosiris Espejo, to investigate the suspected abuse. Several days after Kelly had informed the department, Espejo met with Kim at the residence of N's grandmother. During their meeting, Espejo asked Kim to name the people who were responsible for N's care. She identified herself, the grandmother, and N's daycare provider, Marion Snow. She did not mention the defendant or the fact that N had often spent time at his apartment.

         On June24, 2013, Kim brought N to the grandmother's house. When the grandmother saw N that day, she noticed that N had ‘‘black and blue'' bruises around her eyes. Kim told her that the bruises were caused by a fall.[5] Later that day, when the grandmother attempted to change N's diaper and to give her a bath, N started screaming and jumped into her grandmother's arms. N had never acted this way before and seemed scared, as though ‘‘something came to her mind.''

         Two days later, on June 26, 2013, Kim and N stayed at the defendant's apartment. The defendant had rented a room in the basement of a three-story house that was occupied by several other individuals. When Kim and N stayed at the apartment, Kim slept with the defendant on a mattress on the floor, and N slept on a smaller mattress beside them. That evening, Kim began to pack some of her belongings, intending to leave with N and to go to the grandmother's house. The defendant became angry, yelled at Kim and, in an effort to prevent her from leaving, took her cell phone and car keys. The defendant then went into the living room, just outside the bedroom, and stayed there for most of the night while Kim and N remained in the bedroom. At around midnight, the defendant came back into the bedroom to sleep.

         In the early morning hours of June 27, 2013, N started ‘‘fussing and crying and wouldn't settle down.'' The defendant got out of bed, went over to where N was sleeping, and repeatedly and forcefully poked her in the stomach. While he was poking her, he yelled at her: ‘‘This is what you do to me. You're going to keep me up? How do you like it?'' After he poked her several times, N started to cry. Kim picked her up and eventually comforted her back to sleep.

         Later that morning, the defendant left to attend a therapy program at Natchaug Hospital. A short while later, Kim and N woke up. N did not seem to be in any apparent distress, and she ate her breakfast without difficulty. Kim received a phone call from the defendant asking her to come get him at Natchaug Hospital because he felt sick and his therapist told him to go home. After she picked him up and dropped him off at the apartment, Kim went to the grandmother's house to get some medicine. When she got back to the apartment, she took a bath with N, during which she noticed bruising on the child's chest in the area where the defendant had poked her. At approximately 12:30 p.m., Kim left for work, leaving N alone with the defendant.

         While she was at work, Kim and the defendant exchanged several text messages. At 1:42 p.m., the defendant sent the following message: ‘‘So far so good just brushed her hair her bump is still a little swollen but it should be gone soon!''[6] Then, six minutes later, he texted: ‘‘Hopefully her bump leaves soon! She's behaving really well!!!'' At 1:52 p.m., Kim responded to the second message: ‘‘Where is it?'' Five minutes later, the defendant answered: ‘‘I feel shitty I can't breathe. The same swollen side that [N] had. I noticed it when I brushed her hair, she's doing good tho[ugh]!!!''

         At 2:21 p.m., Kim texted the defendant: ‘‘You want me to come get [N]?'' He responded immediately: ‘‘She's good! She's chilling, keeping me company.'' After he had asked Kim when she would be home, the defendant, at 2:31 p.m., texted: ‘‘She is feisty!!!!'' Then, six minutes later, the defendant wrote: ‘‘Should I give her medicine? She worries me because that bump takes so long to go away. It's like another came or something and the bruising too! She should be ok!'' At 2:40 p.m., the defendant texted: ‘‘She feels [warm] ma!'' Kim responded at 2:41 p.m., with two separate messages: ‘‘The heater is on remember, [because you're] sick, '' followed by: ‘‘So that is prob[ably] why she feels warm.'' Approximately ten minutes later, the defendant wrote: ‘‘Her head still looks swollen should I put ice [on it]?'' Kim responded: ‘‘Yes.'' The defendant then, at 2:52 p.m., texted: ‘‘And her eye is like a [little] swollen too. But she won't let me!'' He then sent a text at 3:05 p.m., which read: ‘‘I'm putting ice [on it] now!'' Approximately twenty minutes later, the defendant wrote: ‘‘Put [N] in the [tub] to cool her off she's having fun!''

         The defendant sent Kim a text at 4:05 p.m., in which he wrote: ‘‘[N] and I just puked.'' One minute later, Kim responded: ‘‘You both puked? Omg.'' Then, at 4:10 p.m., Kim asked: ‘‘Did you make it to the bathroom at least?'' At 4:11 p.m., the defendant replied: ‘‘[N's] left eye is strai[ght] but the [right] eye [is] still a [little] swollen, another couple of days [and] she'll be good!!!'' Approximately ten minutes later, Kim asked: ‘‘Is she okay? Did she puke a lot?'' Immediately, the defendant answered: ‘‘[A little] bit.''

         At 5:34 p.m., the defendant texted: ‘‘Ok, I think [N] is getting better because her eye is all swollen!'' Then, five minutes later, he wrote: ‘‘[N] and I took [a] hot bath!!!'' Approximately an hour later, the defendant sent the following text: ‘‘Kim, I can't take it. I'm in fucking pain!!!!!'' Kim responded four minutes later: ‘‘Let's go to the hospital. [I'll] drop [N] off at my mom's.'' The defendant wrote back immediately: ‘‘Give it a [little] more. It's [my] fucking throat.'' At 7:45 p.m., the defendant texted: ‘‘[Damn], I can't even eat my throat hurt[s] that much!!!!!'' Four minutes later, Kim responded: ‘‘I don't want you to stop breathing I'm worried.''

         Approximately an hour later, the defendant wrote: ‘‘[N] threw up again!!!!! All over the bed!!!'' Then, a few minutes later, he texted: ‘‘She's pale I'm pale!!!! Wtf.'' Twenty minutes later, at 9 p.m., he wrote: ‘‘Hurry.'' One minute later, Kim responded: ‘‘I think we need to go to the emergency room.'' Immediately, the defendant replied: ‘‘[N] has too many bruises.'' Later, at 9:23 p.m., the defendant wrote: ‘‘She's eating oranges [a]nd talking.'' Four minutes later, he texted: ‘‘Now that I think about it that sh[it] look[s] like Lyme [disease]!''

         Sometime after 9 p.m., Kim arrived back at the defendant's apartment. The defendant met her at the top of the stairs leading to the basement and gave her money to buy Tylenol for N. At this time, Kim did not go downstairs to check on N. She drove to a local pharmacy, purchased Tylenol, and drove back to the apartment. When she arrived back, she went downstairs and found N lying on the defendant's mattress in the bedroom. N was ‘‘badly bruised from head to toe, '' and the mattress was covered in vomit. Kim noticed that N was wearing a different outfit than the one she had dressed her in before she left for work. Concerned that there might be more injuries in addition to the ones she could see, Kim undressed N and found a large mark on her stomach. To Kim, it appeared as though something had bitten N. She observed bruises and scratches on her feet and ‘‘marks all over her body, '' and her head was swollen and bruised on the right side.[7] Kim testified that N felt cold and clammy, and that she noticed that the child was having trouble breathing.

         Kim dressed N in fresh clothes and carried her outside to the car to go to the hospital. As she put her in the car, Kim realized that N had stopped breathing. Kim took her out of the car and ran to the sidewalk in front of the apartment. She put N on the ground and attempted to perform cardiopulmonary resuscitation (CPR) but stopped when she started to panic. Kim screamed for help, and, hearing her cries, one of the defendant's roommates, Robert Trevorrow, came outside to assist her. Trevorrow resumed CPR while Kim dialed 911 and requested an ambulance. At some point, the defendant joined Kim and Trevorrow outside on the sidewalk and attempted to assist in the efforts to resuscitate N. Whenthe ambulance arrived, Kim handed N to the responding emergency personnel and joined them in the back of the ambulance. The defendant, at some point, also entered the rear of the ambulance; however, he was told to ride up front with the driver in order to give more space to the treating technicians.

         Christopher Reddy, a paramedic, arrived on scene at 10:23 p.m., shortly after the ambulance. He entered the back of the ambulance and observed that N had no pulse and was not breathing and that emergency personnel had started to perform CPR. He also noticed that N had bruises all over her body, including bruising and swelling in the area around her right eye, and that her abdomen appeared ‘‘distended'' and ‘‘rigid, '' which was unusual for a three year old child. After being on scene for approximately two minutes, the ambulance left for Windham Hospital and arrived there approximately three minutes later.

         At Windham Hospital, N was transferred to the care of Max Goldstein, a physician working in the emergency department that evening. Goldstein observed that N had sustained numerous injuries. He testified that bruises were scattered diffusely throughout her body; she had what appeared to be bite marks on her skin; there was trauma to her vaginal, perineal, and anal areas, and ‘‘the vagina itself had trauma''; and there was extensive swelling behind her face. Goldstein and medical personnel continued resuscitation efforts but ultimately were unsuccessful in reviving N, who was pronounced dead at 11:15 p.m.[8]

         Notified of N's death, state police detectives from the eastern district major crimes squad arrived at the hospital and interviewed Kim and the defendant separately. During the interview, the defendant claimed that N had been sick for a couple of days and that she had been vomiting periodically during this time. When asked about the bruises to N's face and body, he said that she had rolled off her mattress and hit her head on a baseboard heater several days earlier, and that she had caused the other bruises to herself during a temper tantrum. With regard to the specific events that took place on June 27, 2013, the defendant stated that N was not acting herself, ‘‘she was out of it, '' and she was throwing up all day and crying a lot. He stated that he gave her a bath at around 6 p.m., dressed her in new clothes, and then watched a movie with her. Throughout the interview, the defendant repeatedly denied hitting or abusing N in any manner.

         In the early morning hours of June 28, 2013, the defendant was arrested in connection with N's death and transported to Troop K in Colchester. After he read and waived his Miranda[9] rights, the defendant agreed to an interview with detectives. During this interview, the defendant expressed suicidal feelings and invoked his right to counsel. The detectives stopped questioning him and told him that if he wanted to speak with them again, he would have to initiate the conversation. A short while later, the defendant requested to speak with the detectives, and he again read and waived his Miranda rights. The defendant claimed, during this second interview, that he was playing with N, swinging her around by her arms, and that she hit her head on a metal pole in the middle of the bedroom. Although he initially denied hitting her, after further questioning, he admitted that he spanked her because she would not stop crying. When asked about the injuries to N's vaginal, perineal, and anal areas, he said he was ‘‘spanking the shit out of her there . . . on her ass, '' ‘‘slapping [her] ass'' and that he ‘‘might'' have hit her ...

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