State v. Mercer

         Argued May 21, 2019

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         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 state’s attorney, with whom, on the brief, were John Smriga, state’s attorney, and Marc Durso, senior assistant state’s 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 victim’s age.^[1] We are unable to reach the merits of the defendant’s 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 defendant’s 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] Mercer’s half-sister, and other guests, at Tangela’s apartment. They all left the apartment to drink wine at the Ramada Inn, leaving Tangela’s 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.

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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 victim’s 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 state’s 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 person’s consent" in violation of General Statutes § 53a-73a (a) (2).^[5] It was not until after court adjourned for the day on April 27, ...