Argued
February 22, 2019
Appeal
from Superior Court, Judicial District of Danbury, Pavia, J.
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[Copyrighted Material Omitted]
Page 854
Pamela
S. Nagy, assistant public defender, for the appellant
(defendant).
Ronald
G. Weller, senior assistant states attorney, with whom, on
the brief, were Stephen J. Sedensky III, states attorney,
and Warren C. Murray, supervisory assistant states attorney,
for the appellee (state).
Robinson,
C.J., and McDonald, DAuria, Mullins and Ecker, Js.
OPINION
DAURIA,
J.
[333
Conn. 179] 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
Page 855
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.
[333
Conn. 180] The jury reasonably could have found the following
facts. The victims 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
familys 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 victims 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 victims younger
brothers. In January, 2012, the defendant left the United
States for a planned visit to Guatemala. Soon after he left,
one of the victims 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 [333 Conn. 181] 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
defendants 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 person-ally 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
Page 856
of the orders 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]
[333
Conn. 182] 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 defendants
posttrial motions for a judgment of acquittal, to set aside
the jurys 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.
[333
Conn. 183] The defendant appealed to the Appellate Court,
which affirmed the judgments of conviction. State v.
Elmer G., supra, 176 Conn.App. at 383, 170 A.3d 749. 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 defendants 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.
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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 defendants
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 courts explanation of [333 Conn. 184] 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 orders 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 persons 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 persons 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 defendants sister]."
Two
other single page forms were also attached. On one, titled
"Ex Parte Restraining Order/Restraining [333 Conn. 185]
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 defendants contact
with his children to weekly, supervised visits and, thus,
that by initiating
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unsupervised contact with the victim via text message and
letter, the defendant "contact[ed] a person in violation
of the order ...." General Statutes § 53a-223b
(a).[5] The "Order of [333 Conn. 186]
Protection" form
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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 [333 Conn. 187] also
protects the protected persons 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 persons
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 defendants
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 ...