Argued
May 21, 2019
Page 437
Appeal
from the Superior Court in the judicial district of
Fairfield, geographical area number two, and tried to the
jury before Dennis, J.
Richard
Emanuel, for the appellant (defendant).
Mitchell
S. Brody, senior assistant states attorney, with whom, on
the brief, were John Smriga, states attorney, and Marc
Durso, senior assistant states attorney, for the appellee
(state).
Lavine,
Prescott and Bright, Js.
OPINION
LAVINE,
J.
[191
Conn.App. 289] The defendant, Leon Mercer, appeals from the
judgment of conviction, rendered following a jury trial, of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1) and unlawful restraint in the first
degree in violation of General Statutes § 53a-95. On appeal,
the defendant claims that he was deprived of his
constitutional rights to due process and effective assistance
of counsel during the plea bargaining stage of the
proceedings because the state initially charged him with a
crime predicated on its misunderstanding of the victims
age.[1] We are unable to reach the merits of
the defendants appeal due to an inadequate record.
Accordingly, we affirm the judgment of the trial court.
The
following facts, as reasonably could have been found by the
jury, procedural history, and information relating to the
defendants charges are relevant to our resolution of this
appeal. On April 4, 2014, the defendant and his wife, Andrea
Mercer (Mercer) were with Tangela S. (Tangela),[2] Mercers
half-sister, and other guests, at Tangelas apartment. They
all left the apartment to drink wine at the Ramada Inn,
leaving Tangelas six children, including the sixteen year
old victim, and the two children of one of the guests in the
apartment. The adults returned from the Ramada Inn at
approximately 1 a.m. on April 5, 2014. The victim awoke when
they entered.
The
defendant was drunk, behaving in an obnoxious manner, and
insulting Mercer.
Page 438
One of the other guests told him to leave, and the defendant
stated that he was [191 Conn.App. 290] going to his car.
Instead of leaving the apartment and going to his car,
however, the defendant entered the bedroom where the victim
was located. He and the victim engaged in conversation before
the defendant pulled the covers off the victims legs and
started rubbing them. The victim repeatedly tucked the
blankets back under her in an effort to stop the defendant
from rubbing her legs and told the defendant to leave. The
defendant pulled the covers off her, turned her over, put his
hand over her nose and mouth, unbuttoned her pants, and
forcibly touched her clitoris. Not long after, Tangela and
Mercer walked down the hallway toward the bedroom. The
defendant jumped up, rushed out of the bedroom, and quickly
left the apartment. The victim told her mother what the
defendant had done, and Tangela reported it to the police.
On
August 27, 2015, the defendant was arrested. Because the
state thought that the victim was under the age of sixteen at
the time of the incident, the states September 14, 2015 long
form information charged the defendant with sexual assault in
the first degree in violation of § 53a-70 (a) (1), unlawful
restraint in the first degree in violation of § 53a-95, and
risk of injury to a child in violation of General Statutes §
53-21 (a) (2). The age of the victim is an important factor
in determining the severity of the charges. Sexual assault in
the first degree, in violation of § 53a-70 (a) (1), is a
class A felony, rather than class B, if the victim is under
the age of sixteen,[3] and a necessary element for the charge
of risk of injury to a child in violation of § 53-21 (a) (2)
is that the victim is under sixteen.[4]
[191
Conn.App. 291] On March 11, 2016, the defendant rejected a
plea offer of ten years incarceration, execution suspended
after four years, in connection with those three charges and
proceeded to trial. On April 27, 2017, the first day of jury
selection, the state filed a substitute long form information
in which it additionally charged the defendant with sexual
assault in the fourth degree for "subject[ing] another
person, under sixteen (16) years of age, to sexual contact
without such persons consent" in violation of General
Statutes § 53a-73a (a) (2).[5] It was not until after
court adjourned for the day on April 27, ...