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 ...