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State v. Gonzalez

Court of Appeals of Connecticut

March 12, 2019

STATE OF CONNECTICUT
v.
JOSEDIEGO GONZALEZ

          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 ...


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