Argued
May 21, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of sexual
assault in the first degree, strangulation in the second
degree, assault in the third degree, unlawful restraint in
the first degree and threatening in the second degree,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before Kavanewsky,
J.; thereafter, the court denied the defendant's
motion to admit evidence regarding the sexual conduct of the
victim; verdict of guilty of strangulation in the second
degree, assault in the third degree, unlawful restraint in
the first degree and threatening in the second degree;
subsequently, the court denied the defendant's motion for
a judgment of acquittal as to the charges of assault in the
third degree and unlawful restraint in the first degree and
rendered judgment in accordance with the verdict, from which
the defendant appealed to this court. Affirmed.
Alice
Osedach, assistant public defender, for the appellant
(defendant).
Timothy F. Costello, assistant state's attorney, with
whom, on the brief, were John C. Smriga, state's
attorney, and Marc R. Durso, senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Keller and Noble, Js.
OPINION
KELLER, J.
The
defendant, James Henry Watson, appeals from the judgment of
conviction, rendered following a jury trial, of assault in
the third degree in violation of General Statutes §
53a-61 (a) (1), unlawful restraint in the first degree in
violation of General Statutes § 53a-95 (a),
strangulation in the second degree in violation of General
Statutes (Rev. to 2015) § 53a-64bb (a), [1] and threatening
in the second degree in violation of General Statutes §
53a-62 (a) (1). The defendant claims that the trial court (1)
improperly determined whether the charges of assault in the
third degree and unlawful restraint in the first degree were
‘‘upon the same incident'' as the charge
of strangulation in the second degree for the purposes of
§ 53a-64bb (b); (2) violated § 53a-64bb (b) and his
right to be free from double jeopardy when it punished him
for assault in the third degree, unlawful restraint in the
first degree and strangulation in the second degree; and (3)
violated his right to confrontation when it restricted his
cross-examination of the victim. We disagree and,
accordingly, affirm the judgment of the trial court.
On the
basis of the evidence presented at trial, the jury reasonably
could have found the following facts. On October 19, 2016, at
approximately 3 p.m., the defendant and the victim were
‘‘hanging out'' and drinking beer on the
front porch of an apartment building at 850 Hancock Avenue in
Bridgeport wherein the defendant resided. The victim stated
that she needed to use the bathroom, and the defendant stated
that she could use the bathroom in his apartment. The
defendant accompanied the victim to his apartment, which was
on the second floor of the building, and the victim went into
the bathroom. When the victim tried to exit the bathroom, the
defendant blocked the door and stated, ‘‘I'm
going to get some of your fucking pussy.''
The
defendant ultimately allowed the victim to leave the
bathroom, but he then blocked the victim's access to the
front door, forcing the victim into the living room. The
defendant closed the curtains in the living room and
increased the volume on the radio that was playing. The
victim later testified that she did not try to leave the
apartment at this point because there was a
‘‘certain way'' to open the front door,
and she did not know how to do so.
The
defendant then grabbed the victim and pushed her onto the
couch in the living room while stating that he
‘‘wanted to get [the victim's]
pussy.'' The victim attempted to push the defendant
off of her, but the defendant held her down on the couch and
began to rip off her pants and underwear. The defendant also
punched and hit the victim in the face.[2]
Additionally,
the defendant continually choked the victim and hit her in
the face. Periodically, the choking would cause the victim to
have difficulty breathing. Whenever this happened, the victim
would kick her feet at the defendant, and the defendant would
briefly let go of her throat. Thereafter, the defendant would
resume choking her. At one point during this episode, the
defendant stated ‘‘I want to kill you''
and ‘‘I know I'm going to pay for
this.'' The victim asked the defendant to return her
cell phones, [3] which he had taken from her prior to the
first episode where he attacked her, so that she could call
her son. The defendant did not return the victim's cell
phones to her and continued to hit her repeatedly. In an
attempt to resist the defendant, the victim bit his pinky
finger. The victim also tried to run toward the door in order
to escape from the apartment, but the defendant prevented her
from doing so by grabbing the hood of the sweatshirt she was
wearing.
After
attacking the victim in the living room, the defendant
brought her into his bedroom, threw her onto the bed, and
commenced a second attack, continuing to hit and choke her.
The defendant also ripped the victim's T-shirt off of her
body and used it to choke her. Throughout this second
episode, the defendant stated repeatedly that he wanted to
kill the victim.
The
defendant then took the victim back into the living room and
threw her onto a different couch than he had thrown her onto
earlier. During this third attack, the defendant
‘‘beat [the victim] some more'' and
choked her. Sometime thereafter, the defendant stopped
attacking the victim. Even after the defendant stopped
attacking the victim, he would not allow her to leave the
apartment.
Sometime
in the early morning, on October 20, 2016, the victim was
able to convince the defendant to allow her to leave the
apartment by begging him to let her go to the store to
purchase a drink and promising that she would return to the
apartment afterward. The defendant accompanied the victim
outside of the apartment building, but she was able to run
away from him.
The
victim ran to a nearby gas station, where she asked an
employee if she could use the phone to call the police
because she had just been raped. The employee did not allow
the victim to use the phone, so the victim left the gas
station and continued walking down the street away from the
defendant's apartment. While she was walking down the
street, the victim saw an ambulance driving toward her. She
waved down the ambulance and told the paramedics in the
vehicle that she had been raped. One of the paramedics
observed that the victim ‘‘had an abrasion of
approximately four inches [on] the neck, '' as well
as abrasions and swelling on her left eye and left ear.
The
paramedics parked the ambulance at the intersection of
Fairfield Avenue and Norman Street in Bridgeport and
contacted the police. The police arrived at approximately
2:30 a.m. and spoke with the victim. One of the police
officers observed that the victim ‘‘had some red
marks around her neck and some bruising to the
face.'' The victim directed the police to 850 Hancock
Street and informed them that the assault had occurred in an
apartment on the second floor of the building. The police
entered the building and spoke with the defendant in his
apartment. The defendant admitted that he and the victim had
sexual intercourse but claimed that it had been consensual.
While the police were in the defendant's apartment, they
noticed a pair of ripped women's underwear in the garbage
can and took possession of them for evidentiary purposes. The
police also asked the defendant whether he had in his
possession the victim's cell phones and charging cord,
because she had stated that they were
‘‘missing.'' The defendant gave the
police the victim's cell phones and charger.
The
police then brought the defendant down to the front of the
building, where the victim was waiting. The victim identified
the defendant as the individual who had attacked her, and the
police placed him under arrest.
The
victim then was transported to Bridgeport Hospital, where a
nurse examined her and administered a sexual assault kit. The
nurse observed that the victim ‘‘had ligature
marks on her neck and some red marks and abrasions on her
neck and chest.'' The victim complained of a headache
and dizziness and stated that she had been punched in the
face. The victim was prescribed Tylenol and Ibuprofen, as
well as Meclizine for dizziness and Zofran or Ondansetron for
nausea.
The
defendant thereafter was charged with sexual assault in the
first degree in violation of General Statutes § 53a-70
(a) (1) (sexual assault), assault in the third degree in
violation of § 53a-61 (a) (1) (assault), unlawful
restraint in the first degree in violation of § 53a-95
(a) (unlawful restraint), strangulation in the second degree
in violation of § 53a-64bb (a) (strangulation), and
threatening in the second degree in violation of §
53a-62 (a) (1) (threatening). The substitute information
alleged that all of the crimes of which he was accused had
occurred on October 20, 2016, at approximately 2 a.m.
The
defendant's case was tried before a jury in September,
2017. The jury returned a verdict in which it found the
defendant guilty of the charges of strangulation, assault,
unlawful restraint, and threatening, and not guilty of the
charge of sexual assault. Before sentencing, the court
ordered that the parties ‘‘submit a memorandum of
law concerning whether and to what extent [§ 53a-64bb
(b)] applies in the present case and, if so, the appropriate
remedy to be implemented by the court at the time of
sentencing.''
On
October 3, 2017, in response to the court's order, the
defendant filed a motion for a judgment of acquittal as to
the charges of assault and unlawful restraint. On October 25,
2017, the state filed a response to the court's order, in
which it requested that the court impose separate sentences
on each of the charges of which the defendant was found
guilty and deny the defendant's October 3, 2017 motion
for a judgment of acquittal. The state argued that §
53a-64bb (b) did not prohibit punishment for each offense
‘‘because the jury reasonably could have found
the defendant guilty of unlawful restraint and assault for
discrete acts that were separate from the act of strangling
the victim.''
On
December 1, 2017, the court heard argument on the
defendant's motion for a judgment of acquittal. Defense
counsel argued: ‘‘[I]t's our position that
the incident itself that took place at . . . 850 Hancock
Avenue was one transaction. Even though the transaction may
have occurred over a time period extending an hour, two
hours, three hours . . . . [T]herefore, [the defendant]
should receive acquittals on [the counts of assault and
unlawful restraint] pursuant to [§ 53a-64bb (b)] and be
sentenced on the guilty verdict on the other two
...