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State v. Elmer G.

Supreme Court of Connecticut

September 17, 2019

STATE OF CONNECTICUT
v.
ELMER G.[*]

          Argued February 22, 2019

         Procedural History

         Substitute informations charging the defendant, in the first case, with three counts each of the crimes of sexual assault in the second degree and risk of injury to a child, and, in the second case, with three counts of the crime of criminal violation of a restraining order, brought to the Superior Court in the judicial district of Danbury, where the cases were consolidated and tried to the jury before Pavia, J.; verdicts and judgments of guilty of two counts each of sexual assault in the second degree and risk of injury to a child, and three counts of criminal violation of a restraining order, from which the defendant appealed to the Appellate Court, Alvord, Prescott and Pellegrino, Js., which affirmed the trial court's judgments, and the defendant, on the granting of certification, appealed to this court. Affirmed.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

          Robinson, C. J., and McDonald, D'Auria, Mullins and Ecker, Js.

          OPINION

          D'AURIA, J.

         A jury found the defendant, Elmer G., guilty of several offenses stemming from the sexual assault of his minor daughter, including three counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b.[1] The Appellate Court upheld his convictions. State v. Elmer G., 176 Conn.App. 343, 383, 170 A.3d 749 (2017). On further appeal to this court, the defendant claims that the state presented insufficient evidence to convict him of any of the counts of criminal violation of a restraining order. In addition, he claims that he was deprived of a fair trial as a result of certain improprieties committed by the prosecutor. We disagree with both claims and affirm the judgment of the Appellate Court.

         The jury reasonably could have found the following facts. The victim's parents-the defendant and his former wife, A.N.-originally are from Guatemala. The victim was born to the couple in 1996, and, two years later, the defendant immigrated to the United States. A.N. came to the United States two years after that, leaving the victim in Guatemala with relatives. The defendant and A.N. had four other children after they arrived in the United States.

         The defendant would visit Guatemala about once a year. During one of these visits, in 2007, when the victim was about ten years old, the defendant began sexually abusing her. In 2010, when the victim was thirteen years old, the defendant had relatives smuggle her into the United States and to the family's Connecticut home. About two weeks after she arrived, the defendant again started sexually abusing her. The defendant also verbally and physically abused the victim, A.N., and the victim's younger siblings ‘‘[a]ll the time.''

         The Department of Children and Families (department) twice investigated allegations that the defendant had abused family members. In June, 2011, it investigated a report that the defendant had physically abused one of the victim's younger brothers. In January, 2012, the defendant left the United States for a planned visit to Guatemala. Soon after he left, one of the victim's brothers complained to school officials about a recent incident in which the defendant threatened A.N. and cut her with a knife.[2] The department opened a second investigation at this point. Although the victim had not yet disclosed the sexual abuse to anyone, the department was aware of ‘‘continuous domestic violence complaints . . . .''

         In early March, 2012, while the investigation was ongoing and a few days before the defendant was to arrive back in the United States, the victim encouraged A.N. to report the defendant's physical abuse to the police, which she did. Although the police indicated that they were unable to help the family at that time, the department immediately began to assist the family. Among other things, it moved the family to another town and helped A.N. secure an ex parte restraining order against the defendant.

         In relevant part, the ex parte order (1) prohibited the defendant from contacting A.N. and her children, (2) granted A.N. custody of the children, (3) denied the defendant visitation rights, and (4) scheduled a hearing on the matter for March 15, 2012. Days later, the defendant returned from Guatemala and was served personally with the order. The court held a temporary restraining order hearing as scheduled, which the defendant attended with his counsel. As a result of the hearing, the court issued a temporary restraining order that, in relevant part, retained the same contact restrictions but granted the defendant ‘‘[w]eekly, supervised'' visitation with the children. Defense counsel advised him of the order's terms in private, the judge and a victim advocate informed him of the terms in open court, and he received a physical copy of the order. The defendant, who primarily speaks Spanish, had the proceedings translated for him by either a court-appointed interpreter or by his bilingual attorney.[3]

         After the order was in place, the defendant contacted the victim on at least three occasions. First, on March 28, 2012, he sent the victim a text message. The victim ‘‘felt unsafe'' after receiving it and reported it to the police the same day. Second, at some point between April 1 and 9, 2012, the defendant sent the victim a letter. On April 9, 2012, the victim again went to the police, reported the letter and, for the first time, disclosed that the defendant had sexually abused her. Finally, on April 10, 2012, the defendant sent the victim another text message, which the victim reported to the police. Additional facts will be set forth as necessary.

         The record also reflects the following procedural history. In addition to alleging the three counts of criminal violation of the restraining order, the state charged the defendant with three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). Following a trial, a jury found the defendant guilty of two counts of sexual assault in the second degree, two counts of risk of injury to a child, and all three counts of criminal violation of a restraining order. The jury found the defendant not guilty of one count of sexual assault in the second degree and one count of risk of injury to a child. The court denied the defendant's posttrial motions for a judgment of acquittal, to set aside the jury's verdict, and for a new trial. On the sexual assault and risk of injury counts, the defendant received a total effective sentence of forty years of imprisonment, execution suspended after twenty-five years, followed by twenty-five years of probation. On the restraining order violation counts, the defendant received a sentence of five years imprisonment on each count, to run concurrently with the sexual assault and risk of injury sentences.

         The defendant appealed to the Appellate Court, which affirmed the judgments of conviction. State v. Elmer G., supra, 176 Conn.App. 383. He then petitioned this court for certification to appeal, which we granted, limited to the following issues: (1) ‘‘Did the Appellate Court properly conclude that there was sufficient evidence to support the defendant's conviction for criminal violation of a restraining order?'' And (2) ‘‘[d]id the Appellate Court properly conclude that the defendant was not deprived of his right to a fair trial by prosecutorial impropriety?'' State v. Elmer G., 327 Conn. 971, 173 A.3d 952 (2017).[4]

         I

         The defendant first claims that the state presented insufficient evidence for a reasonable jury to have concluded that he contacted the victim in violation of the temporary restraining order against him. We disagree.

         In reviewing a claim of insufficiency of the evidence, we construe the evidence in the light most favorable to sustaining the verdict. E.g., State v. Moreno-Hernandez, 317 Conn. 292, 298, 118 A.3d 26 (2015). We then determine whether the jury reasonably could have concluded that the evidence established the defendant's guilt beyond a reasonable doubt. Id. A defendant is guilty of a criminal violation of a restraining order if he (1) had a restraining order issued against him, (2) had ‘‘knowledge of the terms of the order, '' and (3) ‘‘contact[ed] a person in violation of the order . . . .'' General Statutes § 53a-223b (a).

         On appeal, the defendant does not dispute that he had a restraining order issued against him and that he contacted the victim twice by text message and once by letter. Rather, he argues that the state presented insufficient evidence that (1) he had ‘‘knowledge of the terms of the order'' because the court's explanation of the order to him was unclear, and (2) because he does not read or understand English and the terms were not translated for him, and (3) the contact via letter with the victim was ‘‘in violation of the order'' because it occurred before the order was in place.

         We first set forth the terms of the order. The temporary restraining order the court entered against the defendant consisted of four standardized Judicial Branch forms stapled together. The first was a single page form titled ‘‘Order of Protection.'' That form required the issuing court to identify a ‘‘[p]rotected [p]erson'' (A.N.) and a ‘‘[r]espondent'' (the defendant), who were to be the subjects of the order's protections and prohibitions, respectively. It then listed several terms the defendant had to follow, two of which are relevant to this appeal. The first term prohibited the defendant from contacting A.N. and certain people close to her: ‘‘Do not contact the protected person in any manner, including by written, electronic or telephone contact, and do not contact the protected person's home, workplace or others with whom the contact would be likely to cause annoyance or alarm to the protected person.'' The second term notified the defendant that he would find ‘‘[a]dditional terms'' on a form titled ‘‘Additional Orders of Protection.''

         That single page form, ‘‘Additional Orders of Protection, '' contained a different list of terms, one of which extended A.N.'s protection to her children: ‘‘This order also protects the protected person's minor children.'' Below that appeared a section labeled ‘‘Temporary Child Custody and Visitation, '' in which the court permitted the defendant visitation as follows: ‘‘Weekly, supervised visits with children. The first three visits are to be supervised by Visitation Solutions, Inc., and thereafter by [the defendant's sister].''

         Two other single page forms were also attached. On one, titled ‘‘Ex Parte Restraining Order/Restraining Order: Worksheet Only, '' the previously referenced terms-the contact restriction, the protection of A.N.'s children, and visitation-were reiterated. The other form, titled ‘‘General Restraining Order Notifications (Family), '' contained basic information about the order, including that these documents constituted a restraining order, that violating the order was a criminal offense, that the recipient must comply with both the ‘‘Order of Protection'' and ‘‘Additional Orders of Protection'' forms, and that contacting a protected person could violate the order. The final form was a Spanish language translation of the notifications form.

         From these forms, a reasonable jury could have found that the temporary restraining order limited the defendant's contact with his children to weekly, supervised visits and, thus, that by initiating unsupervised contact with the victim via text message and letter, the defendant ‘‘contact[ed] a person in violation of the order . . . .'' General Statutes § 52-223b (a).[5] The ‘‘Order of Protection'' form plainly provides: ‘‘Do not contact the protected person in any manner, including by written, electronic or telephone contact . . . .'' (Emphasis added.) The minor children term made this contact restriction applicable to A.N.'s children: ‘‘This order also protects the protected person's minor children.'' Although this language does not expressly state that the defendant could not contact the children, a jury reasonably could infer it from the ‘‘Additional Orders of Protection'' form. The language, ‘‘[t]his order also protects, '' indicates that the terms on the primary form ‘‘also'' apply to the protected person's minor children. (Emphasis added.)

         The no contact term itself also applies not only to the protected person, but to ‘‘others with whom the contact would be likely to cause annoyance or alarm to the protected person.'' A reasonable jury therefore could find that unsupervised contact with the children ‘‘would be likely to . . . alarm'' A.N. on the basis of the defendant's history of verbally and physically abusing family members, which included the events that directly precipitated the order: his threats to A.N. with a knife, which occurred in front of her children, and hitting A.N. when she would get between him and the children in an effort to protect them when he was hitting the children, after which she went to the police and was taken to a shelter by the department along with her children in an effort to keep the children away from the defendant.

         A

         The defendant first argues that there was insufficient evidence from which the jury could conclude that he had ‘‘knowledge of the terms of the order''; General Statutes § 53-223b (a); because the court's explanation of the order at the temporary restraining order hearing ‘‘created an ambiguity'' about its scope. We disagree. The court expressly instructed the defendant to limit ‘‘contact'' with the children to weekly, supervised visits.

         ‘‘A person acts ‘knowingly' with respect to . . . a circumstance described by a statute defining an offense when he is aware . . . that such circumstance exists . . . .'' General Statutes § 53a-3 (12). Knowledge is typically inferred. E.g., State v. Simino, 200 Conn. 113, 119, 509 A.2d 1039 (1986) (‘‘[o]rdinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances'' [internal quotation marks omitted]).

         The temporary restraining order hearing proceeded as follows. Defense counsel stated that he had reviewed the order with the defendant and his sister, and that the victim advocate had also been present to answer questions. Defense counsel also confirmed that he would ‘‘make [the defendant] understand'' the proceedings. The victim advocate and the court then had the following discussion:

‘‘The Victim Advocate: What we've agreed upon is that it would be considered a no contact restraining order.
‘‘The Court: As far as mom is concerned?
‘‘The Victim Advocate: As far as mom is concerned.
‘‘The Court: Right.
‘‘The Victim Advocate: Contact with the kids [will] be limited to weekly, supervised visits.
‘‘The Court: Contact with minor children weekly, supervised. Yes?
‘‘The Victim Advocate: To fully cooperate with all of [the department's] recommendations.
‘‘The Court: Yes?
‘‘The Victim Advocate: The first three visits will be through Visitation Solutions [Inc.]
‘‘The Court: Okay.
‘‘The Victim Advocate: The following visits will be through the ...

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