Argued
May 21, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of sexual
assault in the first degree and unlawful restraint in the
first degree, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Dennis, J.; verdict and
judgment of guilty, from which the defendant appealed to this
court. Affirmed.
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.
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. One of the other guests told him to leave,
and the defendant stated that he was 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]
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, 2017, that the state
confirmed that the victim was sixteen-not fifteen as it had
previously erroneously believed-at the time of the incident.
On
April 28, 2017, the second day of jury selection,
[6]the
state filed a substitute amended information that charged the
defendant with sexual assault in the first degree in
violation of § 53a-70 (a) (1), sexual assault in the
fourth degree for in violation of § 53a-73a (a) (2),
[7]and
unlawful restraint in the first degree in violation of §
53a-95, correcting the charges as to the victim's age.
Following
a trial, the jury found the defendant guilty of sexual
assault in the first degree and unlawful restraint in the
first degree. The court sentenced the defendant to a total
effective term of twelve years of incarceration, execution
suspended after five years, two years ...