Argued
October 17, 2018
Procedural
History
Substitute
information charging the defendant with three counts of the
crime of sexual assault in the first degree, and with the
crimes of home invasion and risk of injury to a child,
brought to the Superior Court in the judicial district of New
Haven and tried to the jury before Blue, J.; verdict
of guilty; thereafter, the court denied the defendant's
motions for ajudgment of acquittal and for a new trial, and
rendered judgment in accordance with the verdict, from which
the defendant appealed. Affirmed.
Kevin
W. Munn, assigned counsel, for the appellant (defendant).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Patrick J. Griffin, state's
attorney, and Stacey M. Miranda, senior assistant state's
attorney, for the appellee (state).
Lavine, Keller and Bishop, Js.
OPINION
LAVINE, J.
The
defendant, Jose Diego Gonzalez, [1]appeals from the judgment of
conviction, rendered after a jury trial, of one count of home
invasion in violation of General Statutes § 53a-100aa
(a) (1), three counts of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (2), and
one count of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). On appeal, the
defendant claims that there was insufficient evidence that he
intended to commit sexual assault by force at the time he
entered the victim's home.[2] He also claims that the
prosecutor's closing argument was improper and (1)
deprived him of his right to be heard by counsel during final
argument, (2) deprived him of the right to a fair trial, and
(3) entitled him to a new trial on the charge of home
invasion. We disagree and, therefore, affirm the judgment of
the trial court.
The
jury reasonably could have found the following facts on the
basis of the evidence presented at trial. The victim was ten
years old on October 15, 2014, when the defendant entered her
first floor apartment in a three-family house in Meriden at
approximately 3:40 a.m. At that time, the victim, her mother,
her mother's boyfriend, and the victim's younger
siblings and stepsiblings were asleep in their respective
bedrooms.[3] The front door, a living room window, and
the victim's bedroom window faced the front of the house
above the porch that ran across the front of the house. The
victim's brother had a bedroom in the rear of the
apartment with a window above a hatchway that the defendant
could have used to enter the apartment.
Earlier,
at approximately 8 p.m., the victim had fallen asleep in her
bed in the room that she shared with her stepsisters. The
victim awoke shortly before 3:45 a.m. when she felt someone
touch her lower back. She saw a black man with short
dreadlocks leaning over her. She did not know him, asked him
who he was, and what he was doing there. The defendant did
not answer her but asked her how old she was. She stated that
she was eight years old, hoping that he would leave her
alone. The defendant touched the victim's buttocks
beneath her shorts and underwear. The victim pushed herself
against the wall to stop him. The defendant took hold of the
victim's ankles and put one over each of his shoulders
and told her that ‘‘this wouldn't hurt . . .
.''
The
defendant pulled the victim's shorts and underwear down
to her knees and put a pillow over her face. He pulled down
his own pants, and rubbed and licked the victim's vagina
before penetrating it with his penis. The victim tried to get
away from the defendant, but she could not free herself from
his grip. When the defendant finished, he pulled up the
victim's underwear and shorts and threatened to kill her
if she told anyone what he had done. He covered her with a
blanket and told her to go to sleep. The defendant walked out
of the victim's bedroom and partially closed the door.
The victim watched him walk through the kitchen toward her
brother's bedroom. The window in her brother's room
was wide open. No one else in the house was aware of the
defendant's presence. The victim's sisters remained
asleep, and her brother heard nothing.
The
victim's mother had awakened at approximately 3:20 a.m.,
gone into the kitchen to get a bottle to feed her infant, and
returned to her bedroom. She saw no one in the apartment at
that time. Later, when the victim's mother went back to
the kitchen, she saw the victim standing at her bedroom door.
The victim, shaking with fright, ran into the kitchen and
stated that there was a ‘‘black guy'' in
her room. When the victim and her mother entered the
victim's bedroom, they saw the defendant peering in the
window from the front porch. The victim's mother had
never seen the man before. He had dark skin and a braid
hanging out of his hoodie. The defendant ran toward the back
of the house. The victim's mother tried to pursue him,
but she could not keep up with him.
The
victim told her mother what the defendant had done to her.
When the victim went to the bathroom, she saw a clear, wet
substance on her vagina and asked her mother if she could
wash. The victim's mother, who was medically trained,
recognized the presence of semen in her daughter's
underwear. She instructed the victim not to wipe off
anything. The police were summoned.
The
victim was taken by ambulance to Midstate Medical Center in
Meriden, but because Midstate Medical Center does not perform
rape kits on children, she was transported to Yale-New Haven
Hospital where Deborah Jane Gallagher, a nurse, administered
a rape kit. Gallagher used swabs to obtain DNA samples from
the victim's vagina and fourchette, which was torn.
Gallagher also took a sample of the victim's blood that
would be used to compare the victim's DNA with the DNA
collected on the swabs. At the conclusion of the examination,
the victim went to the Department of Children and
Families' child sexual abuse clinic on Long Wharf Drive
in New Haven, where she was interviewed. During the forensic
interview, the victim described the perpetrator as having a
scratch on his left cheek, clean shaven, and approximately
forty years old. The defendant was twenty-three years old and
had a full beard and mustache when he was arrested two days
later.
The
police searched the victim's apartment, focusing their
attention on her bed and two windows in her brother's
room. They were able to lift fingerprints from the windows,
but some of the fingerprints were insufficiently defined to
be evaluated. Other fingerprints did not match the
defendant's or those of anyone in the police
database.[4]
The
police identified the defendant, an African-American man with
short dreadlocks, as a suspect and arrested him in Waterbury
on October 17, 2014. At the time of the defendant's
arrest, the police obtained a sample of the defendant's
DNA from the inside of his cheek.
Daniel
T. Renstrom, a DNA analyst at the state forensics laboratory,
testified about his analysis of the DNA samples that were
sent to the laboratory. He developed profiles of the
victim's and the defendant's DNA, and a profile of
the DNA on the swabs of the victim's vagina and
fourchette. Renstrom divided the DNA samples from the
victim's vagina and fourchette into two components, an
epithelial or nonspermrich fraction and a spermrich fraction.
He compared the two fractions to DNA profiles of the victim
and the defendant. The swab of the victim's fourchette
contained a mixture of DNA, that is, DNA from more than one
contributor. Renstrom determined that the victim was the
source of the epithelial fraction from the DNA sample from
her fourchette, but he could not identify the other
contributor due to an insufficient amount of DNA. Pursuant to
the laboratory's policy, Renstrom eliminated the
defendant as a DNA contributor to the DNA mixture from the
victim's fourchette.
The DNA
profile obtained from the swab of the victim's vagina
also produced a mixed DNA profile. The swab contained both
saliva and spermatozoa. The victim was a contributor to the
epithelial fraction. The spermrich fraction contained a
mixture of DNA from both the victim and the
defendant.[5] The number of people who have the DNA
profile that was identified as the defendant's is
approximately one in 52 million in the African-American
population, one in 37 million in the Hispanic population, and
one in 66 million in the Caucasian population.
The
defendant was charged in a long form information with home
invasion in violation of § 53a-100aa (a) (1), three
counts of sexual assault in the first degree in violation of
§ 53a-70 (a) (2), and one count of risk of injury to a
child in violation of § 53-21 (a) (2). On December 15,
2016, a jury returned a verdict of guilty on all counts
charged. Thereafter, the defendant filed a motion for a
judgment of acquittal as to his conviction of home
invasion[6] and a motion for a new trial on the ground
of prosecutorial impropriety.[7] The court denied both motions. On
February 24, 2017, the court sentenced the defendant to an
effective term of sixtyfive years imprisonment. The defendant
appealed.
I
The
defendant first claims that the state failed to present
sufficient evidence for the jury to find that he intended to
commit a sexual assault by force at the time he entered the
victim's home, as was required to convict him of home
invasion. We disagree.
The
state alleged in count one of the long form information that
on or about October 15, 2014, at approximately 3:41 a.m., the
defendant ‘‘unlawfully entered a dwelling, while
a person other than a participant in the crime (to wit: [the
victim]) was actually present in such dwelling, with intent
to commit a crime therein (to wit: Sexual Assault in the
First Degree [§] 53a-70 [a] [1]), [8]and, in the course
of committing the offense: he committed a felony against the
person of another person other than a participant in the
crime who was actually present in such dwelling, said conduct
being in violation of [§] 53a-100aa (a) (1) of the
Connecticut General Statutes.''[9](Footnote added.)
‘‘In
reviewing a sufficiency of the evidence claim, we apply a
two-part test. 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 jury reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt. . . .
[P]roof beyond a reasonable doubt does not mean proof beyond
all possible doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of innocence
posed by the defendant that, had it been found credible by
the trier, would have resulted in an acquittal. . . . 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 jury's verdict of
guilty.'' (Internal quotation marks omitted.)
State v. Brown, 299 Conn. 640, 646-47, 11
A.3d 663 (2011).
‘‘[T]he
jury must find every element proven beyond a reasonable doubt
in order to find the defendant guilty of the charged offense,
[but] each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable doubt. . .
. If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider it in
combination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . . Moreover, [w]here a group of
facts are relied upon for proof of an element of the crime it
is [its] cumulative impact that is to be weighed in
deciding whether the standard of proof beyond a reasonable
doubt has been met and each individual fact need not be
proved in accordance with that standard.'' (Citations
omitted; emphasis added; internal quotation marks omitted.)
State v. Otto, 305 Conn. 51, 65-66, 43 A.3d 629
(2012).
‘‘Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.'' (Internal quotation
marks omitted.) Id., 66. In fact,
‘‘circumstantial evidence may be more certain,
satisfying and persuasive than direct evidence.''
(Internal quotation marks omitted.) State v.
Sienkiewicz, 162 Conn.App. 407, 410, 131 A.3d 1222,
cert. denied, 320 Conn. 924, 134 A.3d 621 (2016).
‘‘If evidence, whether direct or circumstantial,
should convince a jury beyond a reasonable doubt that an
accused is guilty, that is all that is required for a
conviction.'' (Internal quotation marks omitted.)
State v. Jackson, 257 Conn. 198, 206, 777 A.2d 591
(2001).
‘‘Intent
is a mental process, and absent an outright declaration of
intent, must be proved through inferences drawn from the
actions of an individual, i.e., by circumstantial evidence. .
. . The intent of the actor is a question for the trier of
fact, and the conclusion of the trier in this regard should
stand unless it is an unreasonable one.'' (Citation
omitted; internal quotation marks omitted.) State v.
Barnes, 99 Conn.App. 203, 212, 913 A.2d 460, cert.
denied, 281 Conn. 921, 918 A.2d 272 (2007).
On the
basis of our review of the evidence, we conclude that there
was sufficient evidence presented for the jury reasonably to
conclude that the defendant unlawfully entered the
victim's dwelling with the intent to commit the crime of
sexual assault by use of force. The evidence that permitted
such an inference included, among other things, the location
of the victim's bedroom window above the porch; the
failure of the victim's mother to see the defendant in
the dwelling when she went to the kitchen at 3:20 a.m.; the
defendant's having gone to the victim's bedroom and
awakened her; the defendant's having asked the victim her
age and telling her that ‘‘this wouldn't
hurt''; the defendant's having put a pillow over
her face and having sexually assaulted her; the
defendant's having threatened to kill the victim if she
told anyone what he had done; his leaving the scene of the
assault immediately by walking through the kitchen and
exiting the window inthe brother's bedroom; the lack of
evidence of another crime having been committed in the
dwelling; and the victim's viewing the defendant peering
into her bedroom window after he exited the dwelling.
The
foregoing, along with the evidence in its entirety, permitted
the jury reasonably to conclude that the defendant entered
the apartment to sexually assault the victim by force. The
jury reasonably could have inferred that the defendant had
been observing the dwelling and knew the layout of the
apartment, knew the family's sleeping habits, and had
been watching the victim through her bedroom window. The
defendant acknowledges that there was evidence that he
entered the victim's dwelling through her brother's
bedroom window. The defendant knew how to get from the
brother's room to the victim's bedroom and went
directly to the victim, not one of the sisters. He asked her
age and told her that ‘‘this wouldn't hurt .
. . .'' He was in the apartment for a short period of
time, disturbed no one but the victim, committed no other
crime, and immediately left after sexually assaulting the
victim. ‘‘Common experience tells us that an
unlawful entry into a dwelling at night is not without
purpose. Nor are people accustomed to enter homes of
strangers through a window for innocent purposes.''
State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68
(1985).
The
jury reasonably could have inferred that the manner in which
the defendant entered the victim's dwelling and carried
out his sexual assault of her was circumstantial evidence
that, when he entered the dwelling, he had the intent to
commit a sexual assault. The single-mindedness with which the
defendant entered the dwelling, proceeded to the victim's
bedroom, and sexually assaulted her against her will is
compelling evidence of this intent. See State v.
Barnes, supra, 99 Conn.App. 203. Barnes is a
case in which the defendant was charged with, among other
things, burglary in the third degree. Id., 204. On
appeal, the defendant, Antonio G. Barnes, claimed that the
state had presented insufficient evidence to convict him of
burglary because there was insufficient evidence that
‘‘he intended to commit a crime when he entered
the [apartment].'' Id., 212. The evidence
demonstrated that Barnes entered that victim's apartment
without consent, took her cellular telephone, and struck her.
Id. He grabbed the victim's ‘‘arms
so that she could not move and, in response to her statement
to [a third party] to telephone the police, stated that he
would be able to hit [the victim] before the police
arrived.'' Id., 212-13. This court construed
‘‘the evidence in the light most favorable to
sustaining the verdict'' and ‘‘concluded
that the evidence established that at the time of entering
the dwelling, [Barnes] intended to commit the crime of
assault against [the victim].'' Id., 213.
In the
present case, the defendant argues that the state failed to
produce sufficient evidence that he had formed the intent to
commit a sexual assault by force when he entered the
dwelling. This argument is predicated on the prosecutor's
summation that did not marshal evidence demonstrating the
defendant's intent when he entered the dwelling. The
defendant has provided no legal support for the singular
proposition that the prosecutor was required to marshal the
evidence in any particular manner, and we are unaware of any
Connecticut law requiring the state to marshal its evidence
as the defendant suggests. Moreover, it is well known, as the
jury was instructed in the present case, that the arguments
of counsel are not evidence and that it is the jury's
recollection of the evidence that is controlling. See, e.g.,
Brown v. Bridgeport Police Dept., 155 Conn.App. 61,
86, 107 A.3d 1013 (2015); State v. Spyke, 68
Conn.App. 97, 113, 792 A.2d 93, cert. denied, 261 Conn. 909,
804 A.2d 214 (2002). The court also instructed the jury that
it may not resort to speculation or conjecture and that its
verdict had to be predicated on the evidence.
The
defendant has not persuaded us that the jury decided the
present case on anything other than the evidence before it.
As previously noted, on the basis of its everyday experience
and the evidence, the jury reasonably may have inferred that
the defendant entered the dwelling with the intent to
sexually assault the victim by means of force. See, e.g.,
State v. Morocho, 93 Conn.App. 205, 215, 888 A.2d
164 (jury reasonably may have inferred, on basis of everyday
experience and evidence presented, that by entering
victim's bedroom, lying on top of her while attempting to
kiss and touch her all over her body, defendant took
substantial step in line of conduct that would culminate in
sexual intercourse), cert. denied, 277 Conn. 915, 895 A.2d
792 (2006). It defies common sense and experience to believe
that the defendant thought that the victim willingly would
have been open to his sexual predation, such that he believed
that he would not need to use the threat of force to sexually
assault her.
For the
foregoing reasons, we conclude that there was sufficient
evidence to support the defendant's conviction of home
invasion and that the trial court properly denied the
defendant's motion for a judgment of acquittal on the
count of home invasion.
II
The
defendant claims that the prosecutor's closing argument
was improper and therefore (1) deprived him of his
constitutional right to be heard by counsel at the close of
evidence, (2) deprived him of his constitutional right to a
fair trial, and (3) entitled him to a new
trial.[10]More specifically, he claims that by
presenting her substantive discussion of the evidence during
the rebuttal portion of her summation, the prosecutor
prevented his counsel from knowing how the state intended to
marshal the evidence and, therefore, counsel could not
effectively rebut the state's position during his closing
argument. He also claims that, during rebuttal argument, the
prosecutor mischaracterized the evidence and introduced new
claims that his counsel could not correct, and thus deprived
him of a fair trial. Finally, the defendant claims that
because the prosecutor reserved the substantive portion of
her argument for rebuttal, he is entitled to a new trial. We
disagree with each of the defendant's claims.
The
defendant did not object to the prosecutor's argument on
the grounds he has raised on appeal.[11] He seeks appellate review
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). Although trial
counsel's failure to object to the prosecutor's
argument is not fatal to the defendant's appellate
claims, it suggests that trial counsel did not believe that
the argument was improper. State v. Chase, 154
Conn.App. 337, 343-44, 107 A.3d 460 (2014), cert. denied, 315
Conn. 925, 109 A.3d 922 (2015). We agree that the
defendant's claims are reviewable because the record is
adequate for review and the claims are of constitutional
magnitude. See State v. Golding, supra, 239. The
defendant, however, cannot prevail, as no constitutional
violations exist, and the prosecutor's final argument did
not deprive him of his constitutional rights. See
id., 240.
We
begin our analysis of the defendant's claims by setting
forth the standard of review. ‘‘[I]n analyzing
claims of prosecutorial [impropriety], we engage in a two
step analytical process. The two steps are separate and
distinct: (1) whether [impropriety] occurred in the first
instance; and (2) whether that [impropriety] deprived a
defendant of his due process right to a fair trial.''
(Internal quotation marks omitted.) State v. Angel
T., 292 Conn. 262, 275, 973 A.2d 1207 (2009).
‘‘In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the
fairness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process violation
involves a separate and distinct inquiry. . . . [If] a
defendant raises on appeal a claim that improper remarks by
the prosecutor deprived the defendant of his constitutional
right to a fair trial, the burden is on the defendant to show
. . . that the remarks were improper . . . . The defendant
also has the burden to show that, considered in light of the
whole trial, the improprieties were so egregious that they
amounted to a denial of due process.'' (Citations
omitted; internal quotation marks omitted.) State v.
Brett B., 186 Conn.App. 563, 573, A.3d (2018), cert.
denied, 330 Conn. 961, A.3d (2019).
Our
Supreme Court ‘‘has acknowledged: [P]rosecutorial
[impropriety] of constitutional magnitude can occur in the
course of closing arguments. . . . In determining whether
such [impropriety] has occurred, the reviewing court must
give due deference to the fact that [c]ounsel must be allowed
a generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined precisely by
rule and line, and something must be allowed for the zeal of
counsel in the heat of argument. . . . Thus, as the
state's advocate, a prosecutor may argue the state's
case forcefully, [provided the argument is] fair ...