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concluding that a victim's failure to communicate with physicians “simply is not probative of whether the victim was unable to communicate to the defendant that his sexual advances were unwelcome”
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No. 18523.
2012-09-28
STATE of Connecticut v. Richard FOURTIN.
Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state). Robert E. Byron, special public defender, for the appellee (defendant).
Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state). Robert E. Byron, special public defender, for the appellee (defendant).
Nancy B. Alisberg filed a brief for the office of protection and advocacy for persons with disabilities et al. as amici curiae.
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.
PALMER, J.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
After a jury trial, the defendant, Richard Fourtin, was convicted of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a–71(a)(3) and 53a–49 (a)(2), and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(C), both of which require proof beyond a reasonable doubt that the victim, at the time of the offense, was physically helpless. Under General Statutes § 53a–65 (6), a person is physically helpless if he or she is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.” After the state had presented its case at trial, and again following the close of evidence, the defendant filed a motion for a judgment of acquittal, claiming that the state had failed to offer sufficient evidence that the victim was physically helpless. The trial court denied the motions and rendered judgment of guilty in accordance with the jury verdict, and the defendant appealed to the Appellate Court. That court considered the sole issue of whether the jury reasonably could have found that the state introduced sufficient evidence to prove that the victim was unable to communicate her lack of consent to the defendant's sexual advances and concluded that the state had failed to sustain its evidentiary burden. See State v. Fourtin, 118 Conn.App. 43, 48, 53, 982 A.2d 261 (2009). The state, in its appeal to this court upon our granting of certification; State v. Fourtin, 294 Conn. 925, 926, 985 A.2d 1062 (2010); claims that the Appellate Court improperly reversed the judgment of the trial court. We disagree and affirm the judgment of the Appellate Court.
.General Statutes § 53a–71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (3) such other person is physically helpless....”
.General Statutes § 53a–49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes (Rev. to 2005) § 53a–73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is ... (C) physically helpless....”
In accordance with our policy of protecting the privacy interests of victims of sexual assault, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54–86e.
The defendant was found not guilty of sexual assault in the second degree in violation of § 53a–71 (a)(3).
The opinion of the Appellate Court sets forth certain of the facts that the jury reasonably could have found, as well as some of the relevant procedural history. “In February, 2006, the twenty-five year old [victim] lived in an apartment complex with her mother [S]. The defendant, who was [S's] boyfriend ... lived nearby. He frequently assisted [S] in caring for the [victim]. The [victim] got along with him.
“Although the defendant was arrested in 2006, his trial was postponed because he was found incompetent to stand trial at that time. The trial commenced two years later, when he was found to have been restored to competency after a period of commitment to Connecticut Valley Hospital.” State v. Fourtin, supra, 118 Conn.App. at 46 n. 5, 982 A.2d 261.
“The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, and her disabilities include] cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board. To manifest her displeasure, she can kick, bite and scratch. The [victim] can also vocalize her feelings by groaning or screeching.
Ralph Welsh, a clinical psychologist, described the victim's total functioning as akin to that of a person between the ages of two and five years old, which he based on a “total composite” indicating “severe to profound deficit[s]” in the areas of living communication, daily living, socialization and adaptive behavior. The victim's mathematical and language comprehension skills were between a kindergarten and second grade level. Welsh, who testified for the defense regarding what he considered to be the victim's suggestibility during interviews and interrogations, compared the victim to a five year old child who has been “isolated” and has “not had contact with anything other than a certain limited world.... She's not like the average five year old child who has ... [many] more life experiences.”
“In 2006, the [victim] was attending an adult day care program for ... physically, emotionally or mentally disabled [persons]. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports. On February 23, 2006, Chervenak observed that the [victim] looked ‘aggravated’ and ‘scared.’ In response to Chervenak's inquiry, the [victim], by means of appropriate gestures and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and [to] Chervenak'sbody parts. A subsequent medical examination disclosed physical symptoms consistent with the [victim's] report that she had been sexually assaulted.” State v. Fourtin, supra, 118 Conn.App. at 46–47, 982 A.2d 261.
Despite the victim's cognitive limitations, Chervenak described her as “very bright” and stated that she often would call him over to talk, particularly about baseball. When Chervenak was asked how he communicated with her, he replied, “I would verbally speak to her, and she would respond either [with] the shrill of her voice ... or she had a communication board which she keeps on the tray to her wheelchair. She would point to letters to spell out a word.... Or she would actually use the computer to write me little messages or little notes, and [we would] talk back and forth [that way].”
“[The victim] pointed to her mouth and then to Chervanak's crotch, and to her chest area and then to her pubic area.” State v. Fourtin, supra, 118 Conn.App. at 46 n. 6, 982 A.2d 261.
Hernandez testified that, although the victim was nonverbal, her cognitive abilities were “very high” and that she was able to communicate her emotions and feelings. Hernandez stated that S frequently complained to day care staff that the victim was not receiving adequate care during the day. According to Hernandez, the victim would get “very upset” and “embarrassed” when S complained, and later would apologize profusely for S's behavior.
In addition to the testimony of Chervenak and Hernandez, the assistant state's attorney (prosecutor) elicited testimony from Dee Vetrano, the director of residential support at the victim's group home, regarding the victim's ability to communicate her preferences. Specifically, the state asked Vetrano whether the victim “is susceptible to being suggested to or manipulated in any way?” Vetrano replied: “No. She is not.... She's ... very direct in what her beliefs are or what her feelings are toward others. [The victim is] actually ... one of [the] people we use when we hire staff. We do initial interviews with staff, and if there's someone that we're interested in hiring, we always bring them to the house ... to see them interact with clients.... We have had a situation where one individual was hired ... and it's someone that the group home manager felt strongly about, and [the victim] to this day does not care for this person. It's not that she hates her ... but she really ... prefer[s] [not] to have that individual work with her, and she still expresses that, even after knowing that it's someone [who] I value as an employee.... So, she's not swayed in any way by her feelings ... and she will always consistently indicate those to us.”
S testified similarly that the victim was able to express her feelings and emotions. When the prosecutor asked S whether the victim had gotten along with S's former husband, the victim's stepfather, S responded: “[H]e got along with her. She did not like him.” S explained that the victim “would always be frowning [when he was around] and she never wanted him near her.... And she ... would try to hurt him.” When the prosecutor asked S whether the victim would try to hurt him physically, S responded: “Physically. Biting, scratching, leaving marks ... [k]icking.” Subsequently, during cross-examination, defense counsel asked S whether the victim had “any problem whatsoever communicating that she did or didn't want to do something....” S responded that the victim “never had a problem.” Defense counsel then asked: “If you took her to the shower when she didn't want to go to the shower, I think you testified [that] she would bite you?” S responded, “Yes, and kick [and] scratch.”
Finally, the prosecutor also presented the testimony of two physicians, both of whom previously had examined the victim, regarding their ability to communicate with her. Jose Reyes, an obstetrician and gynecologist, testified that when he treated the victim for dermatitis in her genital area in 2005, he communicated with the victim through S because he was unable to communicate with the victim directly. The prosecutor also asked James Bovienzo, an emergency department physician who had examined the victim after the alleged sexual assault, whether he was “able to discuss matters with [the victim] while [he was] involved in collecting any evidence in this case....” Bovienzo replied that “[t]he patientwas noncommunicative.”
Elenita Espina, an obstetrician and gynecologist who testified for the defense, offered similar testimony. When she was questioned about several routine examinations that she had performed on the victim in 2003, 2005 and 2006, Espina indicated that she could not communicate with the victim and that she “would talk to [S] about issues concerning [the victim] before [she] began [the] examination....”
After the state presented its case, the defendant moved for a judgment of acquittal, outside the presence of the jury, on the ground that the evidence was insufficient to establish that the victim had been physically helpless at the time of the alleged sexual assault. Specifically, the defendant argued that there was uncontroverted evidence that the victim could communicate her lack of consent by biting, kicking, screaming and gesturing.The state opposed the motion, arguing that the issue of physical helplessness and the question of whether the victim was unable “to communicate her wishes” was a question of fact for the jury. The trial court denied the defendant's motion on the ground that the state had presented sufficient evidence to allow the matter to be decided by the jury.
Thereafter, the defense called several witnesses who testified that the victim often used gestures, kicking, biting, screaming or screeching to express herself. Sandra Newkirk, a home health aide who had cared for the victim for several months prior to the assault, testified that, when the victim did not receive the food she was expecting, “[s]he would have a fit.” During such a fit, “[s]he would kick and, you know, kick and sort of make a groaning noise.” Newkirk further testified that she had witnessed the victim scratch and bite S on a few occasions. The victim's grandmother, R, testified that the victim had a temper and that, “[i]f she didn't like what she was supposed to do, she would screech, and, to anyone who ... wasn't used to the noise ... it would be kind of unnerving.” R recalled that, sometimes, if the victim did not want to take a shower, she would bite S to the point of drawing blood, or, if the victim did not want to wear a particular pair of shoes, she would kick S when S bent down to put the shoes on her feet.
During closing argument, the prosecutor emphasized that the jurors had had an opportunity to observe the victim in the courtroom and contended that “[s]he's a young woman who ... is very, very limited in terms of what she can—what type of information she can pass on to you, the manner in which she can pass it on.” The prosecutor then asked the jurors to be mindful of the fact that the victim was “disabled to a point where she has some difficulty expressing herself in how she can get her message across in terms of what happened.” With respect to whether the victim was physically helpless at the time of the alleged assault, the prosecutor argued that the jurors could find that she was because, like an infant, “[s]he is totally dependent on others.” The prosecutor's contention that the victim was like an infant in terms of her physical dependency was the only argument that he made at trial with respect to the physically helpless prong of the charged offenses.
During deliberations, the jury sent a note to the trial court in which it requested a transcript of the victim's testimony and clarification of the legal definition of “physically helpless.” In response to the latter request, the trial court simply reiterated the statutory definition that it had provided during its original charge. The jury subsequently found the defendant guilty of attempt to commit sexual assault in the second degree and sexual assault in the fourth degree, and the trial court rendered judgment in accordance with the jury's verdict.
The trial court instructed the jury as follows: “The second element of [sexual assault in the second degree] is that the sexual intercourse was with a person who was physically helpless at the time of the sexual intercourse. ‘Physically helpless' is defined in ... [§] 53a–65 (6) as follows: ‘Physically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act. There's no requirement that the state prove that the intercourse was done by force or even without the consent of the other person. Force [and] lack of consent are not elements of the crime. Consent is not a defense. Whether or not the other person consented is irrelevant to your consideration of this element of the crime. The only requirements are that the accused engaged in sexual intercourse with another person who, at the time of the sexual intercourse, was physically helpless, as I have just defined that for you.” In charging the jury on sexual assault in the fourth degree, the trial court indicated that the foregoing instruction would apply.
The defendant appealed to the Appellate Court, claiming that the state had failed to adduce sufficient evidence to prove that the victim's disabilities rendered her physically helpless within the meaning of § 53a–65 (6). State v. Fourtin, supra, 118 Conn.App. at 47, 982 A.2d 261. The defendant argued that the state “[had] not alleged that, at the time ... [he] assaulted the [victim], she was unconscious, intoxicated, asleep or for some other reason unable to communicate nonverbally, such as by kicking, scratching and screeching. The defendant maintain[ed], therefore, that, even viewing the evidence at trial in favor of the state, the record [did] not establish beyond a reasonable doubt that the [victim] was physically unable to communicate [her] unwillingness to an act, as § 53a–65 (6) requires.” (Internal quotation marks omitted.) Id. at 48, 982 A.2d 261.
In response, the state argued that, even though there was testimony “that [the victim] would screech, bite, or kick to indicate displeasure, fear, resistance, or some other negative emotion, it was undisputed that [the victim] was nonverbal.” State v. Fourtin, Conn. Appellate Court Records & Briefs, September Term, 2009, State's Brief p. 9. The state contended that “[m]erely making noises, biting, groaning or screeching is not communication” within the meaning of § 53a–65 (6) because “[n]one [of these modes of interaction] transmit[s] a message to the hearer with sufficient clarity to be called ‘communication.’ This is especially so if the hearer is unfamiliar with [the victim].” Id., at p. 10.
The Appellate Court rejected the state's argument, concluding in relevant part: “All the ... witnesses testified that, sometimes with the aid of a communication board and at other times, with appropriate gestures, the [victim] was able to make herself understood. Witnesses testified about the ‘temper’ of the [victim] and her concomitant ability to make her displeasure known through nonverbal means, using gestures, physical aggression and screeching and groaning sounds. Notably, the alleged sexual assault in this case came to light only because the [victim] was able to communicate her distress to Chervenak. His testimony squarely contradictsthe state's assertion that the [victim] was unable to transmit a message to the intended recipient with sufficient clarity to be called ‘communication.’ ” State v. Fourtin, supra, 118 Conn.App. at 50–51, 982 A.2d 261 “Given the uncontradicted evidence in the record that the [victim] could communicate using various nonverbal methods, including screeching, biting, kicking and scratching, and the failure of the state to present any evidence probative of whether the [victim] was unable to use these forms of communication at the time of the alleged assault, no reasonable jury could have concluded that [the victim] was physically helpless as [that term is] defined by § 53a–65 (6).” Id. at 51, 982 A.2d 261. We subsequently granted the state's petition for certification to appeal, limited to the following issue: “Did the Appellate Court improperly substitute its judgment for that of the jury when it determined that the state did not sustain its burden of proof that the victim was ‘physically helpless' under ... § 53a–65 (6)?” State v. Fourtin, supra, 294 Conn. at 926, 985 A.2d 1062.
On appeal to this court, the state argues that, contrary to the determination of the Appellate Court, the evidence was sufficient to support the jury's verdict because the jury was not required to accept the testimony of the witnesses who stated that the victim could express her displeasure and unwillingness to an act through biting, kicking, scratching, screeching, groaning and gesturing. In essence, it is the state's contention that, if the jury rejected all of the evidence concerning the victim's ability to communicate displeasure and unwillingness to act through nonverbal methods, then the evidence that remained—namely, that the victim could not speak and communicated with words solely by means of a communication board—was sufficient to support a finding that, at the time of the alleged sexual assault, the victim was unable to communicate unwillingness to an act.
The defendant counters that the Appellate Court's conclusion that the state failed to sustain its burden of proof with respect to the element of physical helplessness “did not constitute an improper substitution of judgment but a recognition that the state did not produce evidence to support its theory.” The defendant also contends that the state's argument on appeal that the jury could have rejected all evidence of the victim's ability to communicate nonverbally—which differs not only from its argument in the trial court but also from that which it presented to the Appellate Court—constitutes an “untenable reconstruction” of how the case was presented to the jury and how we must presume that the jury considered and applied the evidence. We agree with the defendant.
Specifically, the defendant contends, inter alia, that “[t]he state posits the theory, not offered at trial, that [the victim's kicking, biting, screeching and groaning] could be deemed ‘merely emblematic of her multiple disabilities' or ‘a reflection of her attitude toward [S]’ or ‘a sign of generalized anger, frustration, or even mischievousness.’ ” The defendant argues, however, that the state never presented any evidence in support of this theory at trial and, therefore, that the jury would have been required to go outside the record to find facts to support it. The defendant argues that “[t]he jury isn't surmising then, it is speculating, and it is acting contrary to the trial court's ... instruction that it is ‘not allowed to find facts outside of the evidence.’ ” The defendant also argues that the state's many theories regarding what the jury could have done “[offer] a radical and untenable reconstruction of how juries may consider and apply evidence.”
We review a claim of evidentiary insufficiency by applying a two-part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540–41, 975 A.2d 1 (2009).
Before we can determine whether the state presented sufficient evidence to prove that the victim was “physically helpless,” however, we first must consider the meaning of that statutory term. Because the state's claim raises an issue of statutory interpretation, we exercise a plenary standard of review. E.g., State v. Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010). Pursuant to General Statutes § 1–2z, we begin our analysis with “the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
As a preliminary matter, it bears emphasis that no one would dispute that the victim is physically helpless in the ordinary sense of that term. Physical helplessness under § 53a–65 (6), however, has a highly particularized meaning that is unrelated to whether a person is physically able to resist unwanted sexual advances or mentally able to understand when to resist such advances. Rather, under § 53a–65 (6), a person is physically helpless if they are “unconscious or for any other reason ... physically unable to communicate unwillingness to an act.” (Emphasis added.) Our case law, and the case law of other jurisdictions, makes clear that, under this definition, even total physical incapacity does not, by itself, render an individual physically helpless.
It is for this reason that some courts and commentators have characterized statutes proscribing sexual intercourse with a physically helpless person as mislabeled. See, e.g., Coley v. State, 616 So.2d 1017, 1019–20 (Fla.App.1993) (“The phrase, ‘physically helpless to resist,’ is a misnomer. The phrase suggests that it applies [when] ... the victim is tied up, but in fact the phrase has nothing at all to do with being physically restrained.... The statute gives ‘physically helpless to resist’ an unusual and very limited definition.”).
In State v. Hufford, 205 Conn. 386, 397–99, 533 A.2d 866 (1987), for example, we rejected the state's claim that the victim, who was totally physically restrained, was physically helpless as that phrase is statutorily defined. In Hufford, the victim allegedly was sexually assaulted by the defendant, Steven H. Hufford, an emergency medical technician, while she was being transported to the hospital by ambulance. Id. at 390, 533 A.2d 866. Although the victim was unable to resist the alleged sexual assault because she was restrained on a stretcher; id. at 390, 393, 533 A.2d 866; this court rejected the state's claim that she was physically helpless because she repeatedly told Hufford to stop touching her. Id. at 398–99, 533 A.2d 866. We explained that, because the victim “was not unconscious, we [were] concerned with whether she was physically able to communicate her unwillingness to the act.” Id. at 398, 533 A.2d 866. We concluded that the word “communicate” was plain and unambiguous, and meant “to make known: inform a person of ... speak, gesticulate ... to convey information.” (Internal quotation marks omitted.) Id., quoting Webster's Third New International Dictionary. Because the victim in Hufford was able to communicate her lack of consent to Hufford, the state failed to satisfy its burden of proving the essential element of physical helplessness. State v. Hufford, supra, at 398–99, 533 A.2d 866; see also People v. Orda, 180 Misc.2d 450, 454, 690 N.Y.S.2d 822 (1999) (physical helplessness requirement in New York Penal Law “is not satisfied by an inability to move one's body [when] the victim is able to protest verbally”); People v. Morales, 139 Misc.2d 200, 202, 528 N.Y.S.2d 286 (1988) (“although [the victim, who was paralyzed from the neck down] was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the [New York Penal Law]”).
Our decision in Hufford, which is consistent with case law from other jurisdictions, establishes that physical helplessness under § 53a–65 (6) applies only to a person who, at the time of the alleged act, was unconscious or for some other reason physically unable to communicate lack of consent to the act. This court never has had occasion, however, to explore the applicability of the term “physically helpless” to a severely disabled person who may be able to communicate non-verbally, as distinguished from a person who is unconscious or, for a similar reason, temporarily unable to communicate unwillingness to an act. Indeed, criminal law treatises suggest that physical helplessness, as that term is used in statutes such as § 53a–65 (6) and similar statutes from other jurisdictions, was intended primarily to address the latter situation. For example, in discussing the crime of sexual assault based on the victim's incapacity to consent, Professor Wayne R. LaFave notes that “[t]his type of case arises in three separate circumstances: where the [victim] is unconscious; where the [victim] is mentally incompetent; and where neither of those circumstances [exists] but the [victim] is under the influence of self-administered drugs or intoxicants.” 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 17.4(b), p. 643; see also 3 F. Wharton, Criminal Law (15th Ed. Torcia 1995) § 282, p. 57 (“A victim is obviously incapable of consenting to sexual intercourse when [the victim] is unconscious or asleep. The term commonly adopted by statute to express the idea is ‘physically helpless,’ which means a victim who is ‘unconscious, asleep, or otherwise unable to indicate willingness to act.’ ”); cf. 2 American Law Institute, Model Penal Code and Commentaries (1980) § 213.1, comment, p. 317 (“Common-law authorities treated intercourse with an unconscious [person] as rape and occasionally expanded this rule to cases [in which] the [person] was not technically unconscious but was so incapacitated by alcohol or drugs as to be in a condition of utter insensibility or stupefaction. Most current statutes, however, differentiate unconsciousness from lesser impairment and require in the latter case that the drug or intoxicant be administered by or with the privity of the defendant in order to constitute the highest degree of forcible rape.”).
Case law from other jurisdictions, particularly New York, also supports the view that the physically helpless requirement was designed to protect victims who are unconscious or in a similar condition that has rendered them temporarily unable to communicate. As one New York court stated: “Physically helpless ... means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” (Internal quotation marks omitted.) People v. Morales, supra, 139 Misc.2d at 201, 528 N.Y.S.2d 286. “The ... [p]ractice [c]ommentaries [to the New York Penal Law] note that ... this definition would apply to a person who is in a deep sleep as a result of barbituates or who is a total paralytic. To some extent, the definitions of mentally incapacitated and physically helpless overlap.” (Citation omitted; internal quotation marks omitted.) Id.“Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.” (Internal quotation marks omitted.) Id. at 201–202, 528 N.Y.S.2d 286. “As noted in the [p]ractice [c]ommentaries, these two forms of incapacity, physically helpless and mentally incapacitated, are applicable to victims who have no mental disease or defect but who are temporarily, for a variety of reasons, not able to make a rational, free-will determination to consent, or not able to communicate an unwillingness to consent, to sexual activity.” (Emphasis added; internal quotation marks omitted.) Id. at 202, 528 N.Y.S.2d 286. “It is apparent that the physical helplessness contemplated by the statute requires more than a disease causing physical paralysis.” (Emphasis added; internal quotation marks omitted.) Id. “A fair reading of the [applicable] statute indicates the requirement of a mental state that limits or prohibits the victim from communicating a lack of consent to the conduct of the perpetrator.” Id.; see also People v. Copp, 169 Misc.2d 757, 758–59, 648 N.Y.S.2d 492 (1996) (“A survey of the cases shows that [when] ... prosecutions are premised on the victim's lack of consent due to physical helplessness, the condition is generally drug or alcohol induced.... However, the statutory definition appears to ... be broad enough to include a sleeping victim.” [Citations omitted; internal quotation marks omitted.] ); State v. Puapuaga, 54 Wash.App. 857, 861, 776 P.2d 170 (1989) (“[t]he state of sleep appears to be universally understood as unconsciousness or physical inability to communicate unwillingness”).
This court repeatedly has stated that, “[w]hen the language and legislative history of a criminal statute do not resolve the question of statutory interpretation presented by a particular case, this court may turn to the parallel statutory provisions set forth in the Model Penal Code and the [revised] New York ... Penal Law, effective September 1, 1967, for guidance ... State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990); because [t]he drafters of [our Penal Code] relied heavily [on] the Model Penal Code and various state criminal codes, especially the [P]enal [Law] of New York. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11. State v. Hill, 201 Conn. 505, 516–17, 523 A.2d 1252 (1986); see also State v. Henry, 253 Conn. 354, 363, 752 A.2d 40 (2000) ( [w]e note that our Penal Code is modeled after the New York Penal [Law] ); State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235 (1997) (legislature relied on the interpretations of the American Law Institute's Model Penal Code and the New York [P]enal [Law] ... when it revised the state [P]enal [C]ode in 1969 ...)....” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, supra, 296 Conn. at 671, 998 A.2d 1.
In fact, it is the rare case that does not involve a victim who was physically helpless due to unconsciousness, sleep or intoxication. Of the numerous reported cases involving the sexual assault of a physically helpless person, only a few involve a victim alleged to have been physically helpless by virtue of having a physical or intellectual disability. Of the few cases involving victims with such disabilities and a statutory definition of “physically helpless” that is identical or similar to the definition of that term in § 53a–65 (6), the pertinent sexual assault charge was dismissed or the defendant's conviction was set aside in all but one case. In the only case that is directly on point, People v. Huurre, 84 N.Y.2d 930, 645 N.E.2d 1210, 621 N.Y.S.2d 511 (1994), the New York Court of Appeals upheld the determination of the Appellate Division of the New York Supreme Court; see People v. Huurre, 193 App.Div.2d 305, 306–307, 603 N.Y.S.2d 179 (1993); that a nonverbal, profoundly retarded woman who also suffered from cerebral palsy, was not physically helpless within the meaning of N.Y. Penal Law § 130.00(7), New York's equivalent to § 53a–65 (6). The defendant in that case, Leo Huurre, “was convicted ... of sexual abuse in the first degree in that he subjected the victim, a profoundly mentally retarded woman, to sexual contact when she was incapable of consenting to such contact by reason of being physically helpless....” (Citation omitted.) Id. at 306, 603 N.Y.S.2d 179. “The victim ... was a [thirty-five year old] woman with an [intelligence quotient] of 16 to 20, which is the functional equivalent of [that of] a three year old and renders her profoundly mentally retarded. In addition, the victim suffers from cerebral palsy and epilepsy, and is nonverbal in the sense that she has no understandable speech, but she does make gutteral noises and is capable of making and understanding a few signs. Essentially, she is capable of doing and understanding that which a three year old can do and understand, except that she does not have the ability to speak. Those who care for the victim testified, however, that her lack of speech does not inhibit her from communicating when she wants or does not want something. Thus, for example, when she was in the hospital after [the alleged sexual] assault [and] waiting to be examined, she kept crying and pointing away as though she wanted to leave. When the doctor attempted to examine her, she kept trying to get off the examining table and jumped back when he approached her with a tube.” Id. at 307, 603 N.Y.S.2d 179.
See, e.g., People v. Clyburn, 212 App.Div.2d 1030, 1031, 623 N.Y.S.2d 448 (evidence was insufficient to sustain conviction for sexual assault of physically helpless person because victim, who suffered from Huntington's disease, was able to communicate verbally), appeal denied, 85 N.Y.2d 971, 653 N.E.2d 627, 629 N.Y.S.2d 731 (1995); People v. Huurre, 193 App.Div.2d 305, 307, 603 N.Y.S.2d 179 (1993) (defendant's conviction was reversed because profoundly retarded victim, although nonverbal, could communicate her unwillingness when she was unwilling to do something and, therefore, was not physically helpless within meaning of sexual assault statutes), aff'd, 84 N.Y.2d 930, 645 N.E.2d 1210, 621 N.Y.S.2d 511 (1994); People v. Morales, supra, at 139 Misc.2d at 202, 528 N.Y.S.2d 286 (although victim was physically incapable of moving her arms or legs, she verbally communicated her lack of consent to defendant during alleged sexual assault, and, therefore, court dismissed count of indictment charging defendant with sexual assault of physically helpless person); State v. Bucknell, 144 Wash.App. 524, 528–30, 183 P.3d 1078 (2008) (although victim was paralyzed from her chest down, she was able to speak and make decisions, and, thus, evidence was insufficient to sustain defendant's conviction for sexual assault of physically helpless person).
Although the defendant's conviction was affirmed in Dabney v. State, 326 Ark. 382, 385, 930 S.W.2d 360 (1996), as the court explained, the facts in that case were significantly different. See id. at 383–85, 930 S.W.2d 360. Specifically, there was evidence that the victim in that case, a fifty-three year old woman who was blind, mentally retarded and confined to a bed, generally was unable to understand what went on around her and therefore could not respond to stimuli in any meaningful way. Id. In addition, although State v. Atkins, 193 N.C.App. 200, 204–205, 666 S.E.2d 809 (2008), review denied, 363 N.C. 130, 673 S.E.2d 364 (2009), involved a physically or mentally handicapped victim, that case also involved a different statutory definition of “physically helpless” and, therefore, is not instructive.
On appeal, Huurre claimed “that in drafting [New York] Penal Law article 130, the article that deals with sex offenses, the [l]egislature defined the phrase ‘incapable of consent’ in such a way as to preclude a finding that [a person] who is mentally retarded could be incapable of consenting by reason of being physically helpless....” (Citation omitted.) Id. at 306, 603 N.Y.S.2d 179. The Appellate Division rejected this contention, concluding in relevant part: “[T]he fact that an individual is mentally retarded does not, perforce, preclude a finding that she, either as a consequence of or in addition to that retardation, is physically helpless, that is, physically unable to communicate an unwillingness to an act.... [T]he evidence adduced at trial, [however] when viewed in the light most favorable to the prosecution, is legally insufficient to establish that the victim was physically unable to communicate unwillingness to an act. In fact, the testimony is to the contrary. Although the victim, by virtue of her retardation, is not able to determine what she should or should not be unwilling to do, the testimony adduced at trial established that when she is unwilling to do something she communicates that unwillingness. Thus, [Huurre's] conviction for sexual abuse in the first degree [was] reversed ... and that count of the indictment [was] dismissed.” (Citation omitted.) Id. at 306–307, 603 N.Y.S.2d 179.
In reaching its determination, the Appellate Division acknowledged that “there may be situations under which the different factors that cause a victim to become incapable of consent overlap.... Indeed, one of the psychologists who testified on behalf of the [prosecution] indicated that while the victim, who is at the high end of the scale which is used to measure profound retardation, has rudimentary communication abilities, there are those on the low end of the scale used to measure profound mental retardation that have none. Such persons may, as a consequence of their mental retardation, or mental defect ... be physically unable to communicate unwillingness to an act.... [In this case], however, the [prosecution] failed to establish that such an overlap exists.” (Citationsomitted.) Id. at 309–10, 603 N.Y.S.2d 179.
The dissent argues that “Huurre is only superficially similar to the present case on the basis of the disabilities [that the victim in that case suffered] as described in [that decision], and is distinguishable because, although it, like the present case, contained some evidence that the victim's ‘lack of speech [did] not inhibit her from communicating when she want[ed] or [did] not want something’; People v. Huurre, supra, 193 App.Div.2d at 307, 603 N.Y.S.2d 179; the evidence of the victim's responsiveness to medical examinations in Huurre was the polar opposite of that considered by the jury in [the present] case.... Specifically, the victim in Huurre actively communicated her desire to avoid the examination and physically tried to ‘get off the examining table and jumped back when [the physician] approached her with a tube. The [physician] finally became discouraged and left the room without [completing] the examination. The victim did receive a complete gynecological examination later that day at the clinic, but in order to do so she had to be strapped down and her legs held apart by two or three people.’ Id. at 307–308, 621 N.Y.S.2d 511, 645 N.E.2d 1210....” (Citation omitted.) The dissent thus concludes that “[t]he victim in Huurre is ... distinguishable from the victim in the present case, who exhibited to her physicians no ... ability to communicate or resist gynecological examinations.” Text accompanying footnote 18 of the dissenting opinion.
This conclusion is predicated on the testimony of three physicians, who observed “that the victim was unable to communicate with them during the course of gynecological examinations, and that they had to speak with S in order to obtain necessary information.” In reliance on this testimony, the dissent reasons that, insofar as the victim did not communicate with her physicians during the course of gynecological examinations, or try to resist those examinations, this case is distinguishable from Huurre because it is reasonable to assume that the victim in the present case, in contrast to the victim in Huurre, could do neither of these things.
The dissent's attempt to distinguish Huurre is unavailing. The far more logical explanation for the inability of the victim's physicians to communicate with the victim during the course of her gynecological examinations is that the victim does not speak. In fact, it would have been remarkable if the physicians had testified that they were able to obtain information from the victim during her examinations in view of the fact that she would have been prone on her back at the time, with her feet in stirrups and without the use of her communication board. Nor is the fact that the victim does not resist gynecological examinations probative of whether she could resist if she wanted to do so. Indeed, the fact that the victim was a cooperative patient is wholly consistent with the testimony of several witnesses, including Vetrano, who described the victim as “a trooper” in public, someone who “likes to please everybody” and “look [s] good in the eyes of others....” Vetrano also testified that “[the victim] was able to tolerate the dentist like any other normal human being that doesn't have a disability. She was pretty amazing. Most of our [clients] require sedation to go through a dental evaluation. The fear that's involved usually just triggers them.... It's very difficult. [There are] a lot of behavioral issues that come into play. [The victim, however] has a full understanding of what going to the dentist means. When I took her, I was able to transfer her with ... assistance into the normal chair ... and she had a full oral exam without any anesthesia, any medication at all, and was able to have a full scaling done by the dentist. She was pretty amazing.” In light of the evidence, the dissent's contention that Huurre is distinguishable because the victim in the present case did not communicate with her examining physicians or attempt to resist them lacks merit.
In sum, even if the term “physically helpless” in § 53a–65 (6) was not intended primarily to apply to a severely handicapped person who is able to communicate non-verbally, we agree with the conclusion in Huurre that a person's physical or intellectual disabilities do not preclude a finding that such a person, by virtue of his or her disabilities or other reasons, is physically helpless in the sense of being “physically unable to communicate unwillingness to an act.” General Statutes § 53a–65 (6). Thus, regardless of the reason for the alleged inability to communicate, the key question in cases that require proof of physical helplessness is whether, at the time of the alleged sexual assault, the victim was physically able to convey a lack of consent or unwillingness to an act.
In the present appeal, the state contends that whether the victim was unable to physically communicate her lack of consent at the time of the alleged assault was a factual matter properly left to the jury and that the Appellate Court improperly substituted its judgment for that of the jury. It is axiomatic that physical helplessness is a question of fact for the jury but only if the court determines that the evidence is legally sufficient to support a finding as to that issue. The question, therefore, is whether the state met that threshold burden.
The state argues that the evidence adduced at trial was sufficient to satisfy its burden of proof with respect to the element of physical helplessness because the jury was not required to accept the testimony of the witnesses who stated that the victim could express her displeasure and unwillingness to an act through biting, kicking, scratching, screeching, groaning or gesturing. The state further contends that, even if the jury credited this testimony, “[it] was not required to accept the interpretation of [the victim's] actions assigned by these witnesses.” The state maintains that, “[r]ather than conclude,as these witnesses did, that [the victim] was able to signal ‘no’ by biting, screeching, kicking or groaning, the jury could find this behavior merely emblematic of her multiple disabilities. Or, the jury could conclude [that] such behavior, rather than serving as a conduit for communication, was a reflection of her attitude toward [S], or merely part of [the victim's] startle reflex, or a sign of generalized anger, frustration or even mischievousness.”
If the state had pursued any of these theories at trial, so that the jury could have considered them, it is entirely possible that we would find them persuasive for purposes of our sufficiency analysis on appeal. We have consistently held, however, that, “in order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. We adopted this rule as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence.... In addition, it is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path [the party] rejected should now be open to him.... To rule otherwise would permit trial by ambuscade.” (Citation omitted; internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 718–19, 905 A.2d 24 (2006).
At no time during the trial, including cross-examination, closing argument or rebuttal, did the state challenge or dispute testimony establishing that the victim communicated displeasure through biting, kicking, scratching, screeching or groaning. Indeed, the state itself elicited much of this testimony, albeit in an attempt to establish for the jury that the victim was credible and perfectly capable of communicating her likes and dislikes. Nor did the state contend or otherwise suggest that these behaviors were simply manifestations of the victim's disabilities rather than volitional, communicative acts intended to express displeasure. Likewise, the state did not proceed on the theory that the victim's behaviors merely reflected generalized anger or frustration.
Another theory that the state did not pursue at trial but does on appeal is that, “even if the jury concluded that [the victim] could signal ‘no’ by screeching, kicking, or [by] other nonverbal means, it could nevertheless conclude [that the victim] was incapable of communicating an ‘unwillingness to an act.’ The jury could reasonably determine that [although the victim] may have had a method of protesting unwanted sexual contact, or an attempted sexual assault, after it occurred, she would have no way of signaling her unwillingness to engage in that conduct prior to its occurrence.” As with the other theories that the state now raises, the state did not introduce evidence or argue in support of this theory at trial.
To the contrary, the prosecutor expressly told the jury during closing argument that the victim, “according to all accounts, was very vocal, very active, and, if in fact she felt that ... [people were not understanding] what she was saying, I believe [that] everybody [who has] testified here [has indicated that] she would throw up her arms and say ‘stop.’ ” During closing argument, the prosecutor also noted that the victim was “very limited in terms of ... what type of information she can pass on to you,” and that she had “some difficulty expressing herself....” At no time, however, did the state even raise the notion that the victim was unable to communicate an unwillingness to an act. Indeed, it appears that the state believed there was no reason to contest the victim's ability to express herself by biting, kicking, scratching, screeching, groaning or gesturing because it was the state's theory that the victim was physically helpless, notwithstanding her ability to communicate nonverbally, in view of her limited cognitiveabilities, the fact that she cannot speak and that fact that she is totally dependent on others for all of her needs. The state, having chosen to pursue this path at trial, cannot now proceed on the basis of theories that it opted not to pursue. See, e.g., State v. Scruggs, supra, 279 Conn. at 719, 905 A.2d 24.
The dissent disagrees with our application of State v. Scruggs, supra, 279 Conn. 698, 905 A.2d 24, to the present case, contending that the state did not violate Scruggs in this case because its factual arguments on appeal are consistent with how the case was litigated “with respect to legal matters determined by the trial court....” Specifically, the dissent asserts that “the state's factually based arguments ... are consistent with its argument before the trial court in response to the defendant's motions [for a judgment of acquittal], namely, that the victim's ability to communicate consent at the time of the [alleged sexual] assault was a credibility based question of fact.” Any such argument to the trial court outside the presence of the jury is wholly irrelevant to a Scruggs inquiry, which is concerned solely with the theory of guilt that was presented to the jury. As the First Circuit Court of Appeals stated in Cola v. Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), the very case on which our analysis in Scruggs is predicated; see State v. Scruggs, supra, at 718, 905 A.2d 24; “the reason [fundamental fairness] requires the appellate theory to be present in the indictment and the proof at trial, is a fundamental sixth amendment concern that guilt be initially adjudicated before a jury based on the government's case as presented at trial.” (Emphasis in original.) Cola v. Reardon, supra, at 697; see also id., at 687 (“the state appeals court, in upholding [the defendant's] conviction on a theory of guilt not presented at trial, violated his due process right to have such guilt determined on a basis set forth in the indictment and presented to the jury ” [emphasis added] ).
Finally, the dissent appears to assert that Scruggs applies only to the defendant's right to fair notice of “ the specific charged acts that form the basis [of] the criminal charges for which he is being tried.” (Emphasis in original.) Footnote 21 of the dissenting opinion. On the contrary, the Scruggs fair notice requirement necessarily applies equally to any and all elements of the offense, not merely to the actus reus element. The dissent has identified no reason for limiting the doctrine in such a manner, and we can think of none.
Indeed, as the Appellate Court suggested; see State v. Fourtin, supra, 118 Conn.App. at 49, 982 A.2d 261; this appears to be a case in which the state ultimately proceeded against the defendant under the wrong statute. Originally, the state also had charged the defendant with sexual assault in the second degree in violation of § 53a–71 (a)(2), attempt to commit sexual assault in the second degree in violation of §§ 53a–71 (a)(2) and 53a–49 (a)(2), and sexual assault in the second degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(B), all of which require that the victim be unable to consent to sexual intercourse because the victim is “mentally defective....” Because the evidence established that the victim's cognitive abilities are significantly limited, the state could well have prosecuted the defendant under those provisions. The record does not indicate why the state decided not to do so and opted instead to pursue charges requiring proof that the victim was physically helpless. By electing to prove that the victim was physically helpless rather than mentally defective, the state removed from the case all issues pertaining to the victim's mental capacity to consent to sex.
As we have explained, the term “physically helpless” has a particular statutory meaning that requires more than a showing that a victim is totally physically incapacitated. We therefore turn to the evidence adduced at trial to determine whether, when considered in light of the state's theory of guilt at trial, the state presented sufficient evidence to satisfy § 53a–65 (6). We conclude that it did not.
As our recitation of the facts indicates, the state presented a significant amount of testimony explaining the victim's physical and cognitive limitations. The state also presented ample evidence to demonstrate that the victim communicated with many individuals by various means, including the use of a communication board, as well as by gestures, biting, kicking and screaming. As we previously indicated, the state presented no evidence or argument to call into question the testimony concerning the victim's nonverbal methods of communication. The state did, however, elicit testimony from several physicians that they were unable to communicatewith the victim during the course of gynecological examinations. That evidence simply is not probative of whether the victim was unable to physically communicate to the defendant that his alleged sexual advances were unwelcome. The fact that the physicians sought information from S, rather than the victim, for purposes of conducting medical examinations is not relevant with respect to establishing that the victim was unable to convey the concept of “no” at the time of the alleged sexual assault.
In concluding that the evidence supported a finding that the victim was physically helpless, the dissent relies heavily on the fact that “the victim's communicative abilities ... were significantly and severely restricted, as shown by her need to use a cumbersome and slow communication board,” and on “the testimony of three physicians ... that the victim was unable to communicate with them during the course of gynecological examinations, and that they had to speak with S in order to obtain necessary information.” The fact that the victim needs a slow and cumbersome communication board to express herself in words does not establish that the victim was unable to express herself in some other manner, specifically, by biting, kicking, scratching, screeching, groaning or gesturing, when the defendant approached her. Of course, if the state had challenged that evidence at trial and advanced the position that the victim could communicate via her communication board only, the result of this appeal might be different.
The dissent also contends that the jury reasonably could have found that the victim could not communicate unwillingness to an act on the basis of the testimony of the physicians who stated that they could not communicate with the victim during the course of her gynecological examinations. As we previously explained, however; see footnote 17 of this opinion; the fact that the physicians could not communicate with the victim does not establish that the victim was unable to communicate with them by biting, kicking, scratching, screeching, groaning or gesturing if she felt the need to do so. Because the victim requires a communication board to express herself in words, it proves nothing that, without the aid of her communication board, the victim did not attempt to communicate with her physicians.
When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state's theory of guilt at trial, we, like the Appellate Court, “are not persuaded that the state produced any credible evidence that the [victim] was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault.” State v. Fourtin, supra, 118 Conn.App. at 53, 982 A.2d 261.
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and ZARELLA and McLACHLAN, Js., concurred.
NORCOTT, J., with whom EVELEIGH and HARPER, Js., join, dissenting.
I conclude that the Bridgeport jury that was summoned to decide the facts of this case reasonably could have found that the victim, a twenty-fiveyear old woman with numerous disabilities, including cerebral palsy, mental retardation and hydrocephalus, which render her unable to walk and talk and leave her with only very limited means to communicate with others, was in fact “ ‘[p]hysically helpless,’ ” even under what the majority deems to be the “highly particularized meaning” of General Statutes § 53a–65 (6), as explicated by State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987). I therefore respectfully disagree with the majority's conclusion that the Appellate Court properly determined that the convictions of the defendant, Richard Fourtin, of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–71 (a)(3), and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(C), were not supported by sufficient evidence. See State v. Fourtin, 118 Conn.App. 43, 45, 982 A.2d 261 (2009). Because I would reverse the judgment of the Appellate Court, I respectfully dissent.
.General Statutes § 53a–65 (6) provides: “ ‘Physically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”
See footnote 2 of the majority opinion for the text of § 53a–49 (a)(2).
See footnote 1 of the majority opinion for the text of § 53a–71a (a)(3).
See footnote 3 of the majority opinion for the text of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(c).
The majority accurately states the background facts and procedural history, and I will not repeat them extensively here. Because this case presents an issue that is extremely fact sensitive, I do, however, emphasize certain descriptive facts with respect to the victim and her disabilities, as well as the events surrounding the disclosure of her assaults. “The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, causing] cerebral palsy, mental retardation and hydrocephalus.214 She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board. To manifest her displeasure, she can kick, bite and scratch. The [victim] can also vocalize her feelings by groaning or screeching.
Ralph Welsh, a clinical psychologist, described the victim's total functioning as akin to someone between the ages of two and five years old, based on a “total composite” indicating “severe to profound deficit [s]” in the areas of living communication, daily living, socialization and adaptive behavior. She has mathematical and language comprehension skills equivalent to a range from kindergarten to second grade. Welsh, who testified for the defense regarding what he considered to be the victim's suggestibility during interviews and interrogations, compared the victim to a five year old child who has been “isolated” and has “not had contact with anything other than a certain limited world.... She's not like the average five year old child who has ... much more life experiences.”
The victim also lacks trunk control and is able to stand only when secured with multiple straps in a device called a prone stander. While standing in her prone stander, the victim can play an organ or electronic piano. She needs other people to move her in and out of the prone stander, bed and wheelchair, needs assistance with toileting functions, and must be bathed, spoon-fed and have her teeth brushed by her mother, S, or home health aides.
The communication board utilized by the victim contains numerous words, such as emotions, persons' names, “yes” and “no,” and icons to which she can point in order to express her needs and desires, such as hunger, thirst and the need to use the toilet. The board also contains the letters of the alphabet for the victim's use in spelling out more complex requests, as she is able to spell at a fifth grade level.
There also, however, was testimony that the victim's biting was, at least in part, the result of an involuntary startle reflex caused by her hydrocephalus, which was so sensitive that she could only be fed gingerly with a plastic spoon. That startle reflex also resulted in the victim kicking her legs up so hard that she would bruise them on her wheelchair or the tray of her prone stander.
“In 2006, the [victim] was attending an adult day care program for men and women who are physically, emotionally or mentally disabled. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports. On February 23, 2006, Chervenak observed that the [victim] looked ‘aggravated’ and ‘scared.’ In response to Chervenak's inquiry, the [victim], by means of appropriate gestures and the use of a communication board, made him aware that the defendant [who is the boyfriend of her mother, S] had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and Chervenak's body parts. A subsequent medical examination disclosed physical symptoms consistent with the [victim's] report that she had been sexually assaulted.” Id. at 46–47, 982 A.2d 261.
The victim “pointed to her mouth and then to Chervenak's crotch, and to her chest area and then to her pubic area.” State v. Fourtin, supra, 118 Conn.App. at 46 n. 6, 982 A.2d 261.
“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540–41, 975 A.2d 1 (2009).
Before turning to a detailed examination of the record in this case, I begin with a review of the legal principle that the jury tasked with deciding the facts of this case was called upon to apply, namely, whether the victim was physically helpless, a term that is statutorily defined as “unconscious or for any other reason ... physically unable to communicate unwillingness to an act.” (Emphasis added.) General Statutes § 53a–65 (6). The leading Connecticut case involving the application of this term is State v. Hufford, supra, 205 Conn. 386, 533 A.2d 866, wherein this court concluded that there was insufficient evidence to support the fourth degree sexual assault conviction of the defendant, an emergency medical technician, who had allegedly touched the breasts and vagina of a female patient who was being restrained during transportation to the hospital because she was agitated and apparently suicidal. Id. at 389–90, 533 A.2d 866. This court first noted that the language of § 53a–65 (6) “contains no terms not commonly used which might not be understood in their ordinary meaning,” and stated that, “[s]ince the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the act.” Id. at 398, 533 A.2d 866. Quoting Webster's Third New International Dictionary (1986), the court determined that the word “communicate” was plain and unambiguous, and meant “ ‘to make known: inform a person of ... speak, gesticulate ... to convey information.’ ” State v. Hufford, supra, at 398–99, 533 A.2d 866. Rejecting the state's claim that the complainant, who was unable to resist the alleged assault because she was being restrained, but had “protested verbally,” was “physically helpless”; id. at 398, 533 A.2d 866; the court observed that, “[b]y her own account, the complainant told the defendant repeatedly to stop touching her, directly conveying her objection to his advances. While this testimony tends to show lack of consent, it contradicts the state's assertion that the complainant was unable to communicate her ‘unwillingness to an act.’ ” Id. at 399, 533 A.2d 866. Accordingly, this court concluded that “[t]he record contains no evidence tending to show that the complainant was physically helpless.” Id.
I agree with the majority that this case, in some respects, presents a matter of statutory interpretation that is a question of law subject to plenary review; see also General Statutes § 1–2z; namely, in divining the meaning of the phrase “physically helpless.” Nevertheless, I view this legal question as inextricably bound with the pure sufficiency issues herein. Put differently, this is neither a “typical” statutory interpretation case involving the determination of a statute's meaning in juxtaposition with undisputed or previously found facts, nor a sufficiency case involving the review of a factual record in light of undisputed general legal principles. Rather, this case straddles the analytical line between the two, and I treat it accordingly.
This court's conclusion in State v. Hufford, supra, 205 Conn. at 398–99, 533 A.2d 866, that the definition of physically helpless is plain and unambiguous, accords with the drafters' view of § 53a–65 (6), which was enacted as part of the comprehensive revision of Connecticut's Penal Code in 1969. See Public Acts 1969, No. 828, § 66(7). The reports of the commission to revise the criminal statutes (commission) indicate that the commission took the definition verbatim from New York's Penal Law and considered it to be “self explanatory.” See Commission to Revise the Criminal Statutes, Commentary on Title 53a: The Penal Code (1969), pp. 2, 39, 45; see also Report of the Commission to Revise the Criminal Statutes (1967) p. 132 (describing definition of physically helpless as “self-explanatory”). Indeed, although the legislature did not adopt the commission's commentary to the Penal Code; see State v. Parmalee, 197 Conn. 158, 163 n. 7, 496 A.2d 186 (1985); the floor debates on the commission's proposed code nevertheless do not contain any discussion about the meaning of or ambiguity in the definition of physically helpless.
Further, this court rejected the state's reliance on People v. Teicher, 52 N.Y.2d 638, 648–49, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981), for the proposition that the “complainant was physically helpless by virtue of her inability to move away from the defendant notwithstanding her ability to speak”; State v. Hufford, supra, 205 Conn. at 398, 533 A.2d 866; noting that, in “Teicher, the defendant, a dentist, was convicted of sexually abusing a police decoy whom he had drugged. The Court of Appeals upheld the conviction over the defendant's contention that the victim was not physically helpless because she was mentally aware although unable to control her body. Significantly, that court pointed out that the jury heard evidence that the victim was lifted to a standing position by the defendant, and that, under the circumstances, ‘there may be a decrease in the cerebral blood flow which could result in dizz[i]ness or even unconsciousness,’ and that chest compression could compound the result, thereby leaving the question of the state of the victim's helplessness for the jury to decide.” Id.
Consistent with our decision in State v. Hufford, supra, 205 Conn. at 399, 533 A.2d 866, case law from other jurisdictions applying statutory language identical to that of § 53a–65 (6) in sufficiency of the evidence analyses makes clear that even the most significant physical disability does not by itself render an individual physically helpless. Thus, I agree with the majority that the analytical key remains the disabled victim's physical ability to communicate consent or the lack thereof. Compare Dabney v. State, 326 Ark. 382, 384, 930 S.W.2d 360 (1996) (A fifty-three year old victim who was blind and unable to speak was physically helpless when, “[a]s to her ability to communicate, the victim could only grunt, raise her hand, and shake her head from side to side. She was unable to write. In addition, witnesses testified that the victim's ability to perceive and comprehend her surroundings was very limited.”), and People v. Gonzalez, 62 App.Div.3d 1263, 1264–65, 878 N.Y.S.2d 534 (sufficient evidence that victim with “advanced Alzheimer's disease ... was ‘physically unable to communicate unwillingness to an act’ ”), appeal denied, 12 N.Y.3d 925, 912 N.E.2d 1087, 884 N.Y.S.2d 706 (2009); and People v. Green, 298 App.Div.2d 143, 144, 747 N.Y.S.2d 767 (Both victims were the defendant's fellow hospital patients and “were so severely handicapped that they were not capable of communicating an unwillingness to act. While there was evidence that each victim could make reflexive body motions, the evidence did not warrant a conclusion that either victim was capable of making voluntary movements designed to communicate unwillingness....” [Citation omitted.] ), appeal denied, 99 N.Y.2d 559, 784 N.E.2d 84, 754 N.Y.S.2d 211 (2002), with People v. Clyburn, 212 App.Div.2d 1030, 1031, 623 N.Y.S.2d 448 (victim who suffered from Huntington's chorea, but could speak, not physically helpless), appeal denied, 85 N.Y.2d 971, 653 N.E.2d 627, 629 N.Y.S.2d 731 (1995), and People v. Morales, 139 Misc.2d 200, 201–202, 528 N.Y.S.2d 286 (1988) (The victim, who “suffers from muscular dystrophy rendering her paralyzed from the neck down and wheelchair bound,” not physically helpless because she had “clearly testified that she verbally communicated her lack of consent and protests to the defendant during the incident. Therefore, although she was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the statute.”), and State v. Bucknell, 144 Wash.App. 524, 529–30, 183 P.3d 1078 (2008) (bedridden victim paralyzed from waist down by amyotrophic lateral sclerosis, commonly known as Lou Gehrig's disease, not physically helpless because she was “able to talk, answer questions, and understand and perceive information”).
I note that, in other jurisdictions, statutes addressing physically helpless victims have aptly been criticized as “mislabeled” for this reason. See People v. Morales, 139 Misc.2d 200, 202, 528 N.Y.S.2d 286 (1988) (“although [a victim paralyzed from the neck down] was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the statute”); see also People v. Orda, 180 Misc.2d 450, 454–55, 690 N.Y.S.2d 822 (1999) (finding sufficient evidence of “[f]orcible compulsion” given “great disparity in physical condition between [the] defendant and his quadriplegic charge,” and noting that victim “in fact, is physically helpless,” although not legally so under “statutory definition which deserves reexamination”). Although the definition of physically helpless utilized in Connecticut and New York is the most common statutory definition of physical incapacity, Professor Wayne R. LaFave has noted “considerable variation” in the language of statutes protecting physically incapacitated victims, observing: “Sometimes the statutory reference is only to a victim who is unconscious, and sometimes unconscious is listed with some alternative condition, such as asleep, physically powerless, or physically incapable of resisting. Some statutes refer more generally to where a physical condition has affected the person in some way, such as by making the person unaware that a sex act is being committed, incapable of consent, or substantially limited in the ability to resist.” (Emphasis added.) 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 17.4(b), pp. 643–44. Thus, I note that a perhaps more comprehensive definition is provided by, for example, N.C. Gen.Stat. § 14–27.1(3) (2009), which “defines ‘physically helpless' as ‘(i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.’ ” (Emphasis altered.) State v. Atkins, 193 N.C.App. 200, 205, 666 S.E.2d 809 (2008); see id. at 205–206, 666 S.E.2d 809 (concluding that eighty-three year old victim with severe arthritis who could only walk with aid of walker, “needed assistance with her everyday household chores and could only transverse steps or do other daily errands with assistance,” was “ ‘physically helpless' ” because she could not escape or “actively oppose or resist” her attacker), review denied, 363 N.C. 130, 673 S.E.2d 364 (2009). As I note in greater detail in footnote 22 of this dissenting opinion, the legislature may well wish to reexamine § 53a–65 (6) in order to determine whether the current definition of physically helpless provides adequate protection from sexually assaultive conduct for persons with physical disabilities, while simultaneously assuring their individual liberties.
Finally, in reviewing the evidence in this record, I emphasize that “[w]hether a victim is physically helpless at any given moment is largely a question of fact for the jury to decide.” (Internal quotation marks omitted.) State v. Stevens, 311 Mont. 52, 59, 53 P.3d 356 (2002); see also, e.g., Dabney v. State, supra, 326 Ark. at 384, 930 S.W.2d 360;Perez v. State, 479 So.2d 266, 267 (Fla.App.1985); State v. Tapia, 751 N.W.2d 405, 407 (Iowa App.2008); People v. Teicher, 52 N.Y.2d 638, 649, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981). The majority recognizes this principle of factual deference, but in my view, fails to pay it sufficient heed.
Thus, unlike the majority, I agree with the state's position that, when the evidence properly is construed in the light most favorable to sustaining the verdict, including reasonably drawing inferences from that evidence in a manner consistent with the jury's verdict; see, e.g., State v. Ovechka, supra, 292 Conn. at 540–41, 975 A.2d 1; there is legally sufficient evidence in the record to support the jury's finding that the victim's physical and mental disabilities rendered her “physically unable to communicate unwillingness to an act.” General Statutes § 53a–65 (6). With respect to the victim's communicative abilities, although they were not completely nonexistent, they nevertheless were significantly and severely restricted, as shown by her need to use a cumbersome and slow communication board. See footnote 7 of this dissenting opinion. Dee Vetrano, the director of residential support at the Litchfield County Association for Retarded Citizens, who supervises the group home wherein the victim resided at the time of trial, testified that it took a great deal of energy and time for the victim's brain to make her hands move so that she could use the board—testimony that was demonstrated for the jury when the victim's testimony had to be taken in short intervals over four separate trial days because of the fatigue caused by the act. Indeed, Vetrano testified further that, when the victim became stressed or agitated—which the jury reasonably could have inferred was a possible, and indeed quite likely, reaction to a sexual advance by the defendant, who was her mother's boyfriend—she would involuntarily “fist” her hands, rendering her further unable to communicate using the board, and therefore unable to physically communicate to the defendant that his sexual advances were unwelcome. Moreover, given the context dependent nature of the victim's communication abilities, as shown by the icon based communication board and the testimony of S that, to her knowledge, the victim had never received any kind of sex education—either from S or from any of her schools or care programs—the jury also reasonably could have inferred that the victim had significant difficulty understanding and responding to questions about sex.
Thus, I agree with the amici curiae, office of protection and advocacy for persons with disabilities, Arc of Connecticut, and Developmental Disabilities Council of Connecticut, that the Appellate Court's observation that “[n]o evidence was offered at trial to establish whether the [victim] had access to a communication board at the time of the alleged assault”; State v. Fourtin, supra, 118 Conn.App. at 50 n. 10, 982 A.2d 261; is inapt, as well as representative of its apparent reweighing of the evidence before the jury. Given the victim's cognitive deficiencies, and their impact on her total disability as described by Ralph Welsh, the psychologist called by the defendant; see footnote 5 of this dissenting opinion; I similarly find puzzling the Appellate Court's reference to Stephen Hawking, “the celebrated author of A Brief History of Time,” in support of its conclusion that “someone cannot be described as noncommunicative even though he suffers from a disease that requires him to communicate by the use of a computer system.” Id. at 51 n. 11, 982 A.2d 261.
These communicative difficulties are further borne out in the testimony of three physicians to the effect that the victim was unable to communicate with them during the course of gynecological examinations, and that they had to speak with S in order to obtain necessary information. Jose Reyes, an obstetrician and gynecologist who was one of the victim's regular treating physicians, testified that, in October, 2005, the victim came in for treatment of an apparent rash “with [S] and it was [S] who communicated with me since I could not communicate with the [victim].” Reyes testified on cross-examination that, although the victim had a contact dermatitis condition on her genitalia and perineum that would generally be a very painful and itchy condition, she could not communicate that to him. Elenita Espina, Reyes' partner in practice, similarly testified at trial that she was never able to communicate with the victim, both at a June, 2006 examination following the sexual assault at issue in this case, and during numerous past visits. Finally, James Bovienzo, an emergency department physician at St. Vincent's Medical Center in Bridgeport who performed the sexual assault examination on the victim, answered in the negative when asked whether he was “able to discuss matters with [the victim] while [he was] involved in collecting ... evidence in this case,” testifying that she was “noncommunicative” throughout the examination. In assessing the victim's communicative abilities with respect to matters pertaining to her body, the jury reasonably could have credited the physicians' testimony regarding how the victim simply could not communicate with them—particularly given her lack of sexual knowledge and the fact that they were called upon to assess and treat her genital and perineal areas both in the course of ordinary medical care and in conjunction with the sexual assault evaluations occasioned by her allegations in this case. Thus, I conclude that the jury's finding of physical helplessness was supported by sufficient evidence.
I acknowledge the testimony of S that the victim had to be placed on Depo–Provera at the age of fourteen in order to stop her menstrual periods because the victim became “very difficult to manage” during her periods and, indeed, would kick, scream and otherwise resist when S attempted to place a sanitary pad in her private area. To the extent, however, that this testimony could be interpreted as an inference that runs counter to that taken from the physicians' testimony, namely, that the victim was perfectly capable of resisting or communicating with respect to the unwanted touching of her private parts, the jury was not required to credit this testimony, particularly given S' testimony that she supported the defendant and believed that the charges against him were false.
Similarly, I agree with the state that the jury was not required to credit the testimony of S, and her mother, R, to the effect that the victim's ability to kick, bite, screech and groan was indicative of her ability to communicate a lack of consent but, rather, could have found that these behaviors were manifestations of her disabilities and would not have had any communicative significance to the defendant, given evidence proving his limited degree of contact with her. This is particularly so given testimony that the victim's biting and kicking, acts upon which the majority and the defendant rely to indicate that the victim could communicate her displeasure, rendering her not physically helpless, were at least in part the result of an involuntary startle reflex caused by her hydrocephalus. See footnote 8 of this dissenting opinion.
In concluding to the contrary, the majority echoes the defendant's contentions and posits that the victim must be in a state akin to unconsciousness in order to qualify as physically helpless under the statute, noting that “it is the rare case that does not involve a victim who was physically helpless due to unconsciousness, sleep or intoxication.” The defendant and the majority, quite understandably, then rely heavily on People v. Huurre, 193 App.Div.2d 305, 307–308, 603 N.Y.S.2d 179 (1993), aff'd, 84 N.Y.2d 930, 645 N.E.2d 1210, 621 N.Y.S.2d 511 (1994) (per curiam), wherein the New York Appellate Division, in an opinion later adopted by the Court of Appeals, concluded that there was not sufficient evidence to establish the physical helplessness of “a [thirty-five year old] woman with an IQ of [sixteen] to [twenty], which is the functional equivalent of a three year old and renders her profoundly mentally retarded. In addition, the victim suffers from cerebral palsy and epilepsy, and is nonverbal in the sense that she has no understandable speech, but she does make gutt[u]ral noises and is capable of making and understanding a few signs. Essentially, she is capable of doing and understanding that which a three year old can do and understand, except that she does not have the ability to speak.” The court determined that the victim's rudimentary communicative abilities and responses to medical treatment “most vividly [typify] the problem with this case—the victim has the physical ability to communicate her unwillingness to do an act, but she is mentally incapable of determining when she should be willing and when she should be unwilling to do an act.” Id. at 308, 603 N.Y.S.2d 179.
The New York court acknowledged that “there may be situations under which the different factors that cause a victim to become incapable of consent overlap.... Indeed, one of the psychologists who testified on behalf of the [state] indicated that while the victim, who is at the high end of the scale which is used to measure profound retardation, has rudimentary communication abilities, there are those on the low end of the scale used to measure profound mental retardation that have none. Such persons may, as a consequence of their mental retardation, or mental defect ... be physically unable to communicate unwillingness to an act.... Here, however, the [state] failed to establish that such an overlap exists.” (Citations omitted.) People v. Huurre, supra, 193 App.Div.2d at 309–10, 603 N.Y.S.2d 179.
I disagree with the majority's reliance on Huurre in applying § 53a–65 (6). First, as aptly noted by the Arkansas Supreme Court in applying an identical definition, the statute “only requires physical helplessness, not total incapacity.” (Emphasis added.) Dabney v. State, supra, 326 Ark. at 385. Second, the Appellate Division's decision in Huurre, even if it comprehensively reflects the state of the law in New York, nevertheless is both nonbinding and, in my view, a wrongly decided case that simply cannot be reconciled with the state high court's prior admonition in People v. Teicher, supra, 52 N.Y.2d at 649, 422 N.E.2d 506, 439 N.Y.S.2d 846, namely, that physical helplessness is largely a question of fact for the trier. Moreover, Huurre is only superficially similar to the present case on the basis of the disabilities suffered by the victim therein as described in the opinion, and is distinguishable because, although it, like the present case, contained some evidence that the victim's “lack of speech does not inhibit her from communicating when she wants or does not want something”; People v. Huurre, supra, 193 App.Div.2d at 307, 603 N.Y.S.2d 179; the evidence of the victim's responsiveness to medical examinations in Huurre was the polar opposite of that considered by the jury in this case through the testimony of Reyes, Bovienzo and Espina. Specifically, the victim in Huurre actively communicated her desire to avoid the examination and physically tried to “get off the examining table and jumped back when [the physician] approached her with a tube. The [physician] finally became discouraged and left the room without having completed the examination. The victim did receive a complete gynecological examination later that day at the clinic, but in order to do so she had to be strapped down and her legs held apart by two or three people.” Id. at 307–308, 603 N.Y.S.2d 179; see also id. at 308, 603 N.Y.S.2d 179 (The court noted that “when the victim is given medicine at the institution in which she resides she often backs away and shakes her head, indicating that she does not want to take the medicine. Another example of the victim's ability to communicate occurred when she cut her head and was taken to the hospital. She covered her wound with her hand when the doctor tried to look at it.”). The victim in Huurre is, then, distinguishable from the victim in the present case, who exhibited to her physicians no such ability to communicate or resist gynecological examinations.
Although New York decisions are often informative with respect to the interpretation and application of our substantive criminal laws, which, including § 53a–65, are in large part modeled after New York's Penal Code; see, e.g., State v. Albert, 252 Conn. 795, 810–11, 750 A.2d 1037 (2000); see also footnote 11 of this dissenting opinion; we need not follow that state's case law when it is unpersuasive or otherwise inapposite. See, e.g., State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978) (“the similarity of language existing between the New York and Connecticut [P]enal [C]odes does not compel a like construction”).
I acknowledge the defendant's argument that the physicians' testimony in the present case was conclusory and did not explain what they meant in describing the victim as noncommunicative. Positing that the prosecutor was “careful ... not to ask too much” about how the victim responded to the physical examinations, the defendant contends that the victim's submission to the physical examination could have been viewed as “physically indicating willingness. Query then, if she can communicate willingness, why can't she communicate unwillingness?” The defendant himself, however, had ample opportunity to elicit from the physicians' testimony in support of the inference that the victim had the capability to communicate willingness or unwillingness to other people touching her genital area. Indeed, the record reveals that the defendant questioned Bovienzo thoroughly during cross-examination, and Espina during direct examination, but never once asked about their efforts to communicate with the victim or about her responses to their physical examinations, focusing instead on establishing alternative nonsexual causes for the irritation of the victim's genitalia or the damage to her hymen. Further, the defendant touched on this point during his brief cross-examination of Reyes, confirming Reyes' testimony that, although contact dermatitis of the genitalia is an itchy and painful condition, the victim “couldn't communicate [that] to you,” and “you couldn't tell from any communication from her whether it was painful or not painful....” In any event, the conclusory nature of the physicians' testimony is a deficiency that, in my view, goes only to the weight of the evidence for the trier, and simply is irrelevant to the sufficiency inquiry performed on appellate review.
Finally, the majority, in apparent agreement with the defendant's characterization of the state's factual arguments as “radical and untenable reconstruction[s] of how juries may consider and apply evidence”; (internal quotation marks omitted) see footnote 13 of the majority opinion; relies on State v. Scruggs, 279 Conn. 698, 905 A.2d 24 (2006), and declines to consider the state's factual arguments on the ground that they were not raised at trial, and thus constitute the oft-derided appeal by ambuscade. In Scruggs, this court concluded that, “in order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherenttheory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. We adopted this rule as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence.” (Internal quotation marks omitted.) Id. at 718, 905 A.2d 24; see also id. at 718–19, 905 A.2d 24 (rejecting state's attempt to argue applicability of subjective standard on appeal after record revealed that it had based its case at trial on objective standard, namely, that conditions in defendant's argument would have been injurious to any child under General Statutes § 53–21); State v. Robert H., 273 Conn. 56, 83–85, 866 A.2d 1255 (2005) (under “theory of the case doctrine,” state could not rely, on appeal, on sexual act by defendant, evinced in record, to support jury's verdict in response to sufficiency challenge when state did not present that particular act at trial as culpable conduct).
I respectfully disagree with the majority's application of Scruggs and somewhat restrictive reading of the record in the present case and the manner in which this issue was tried. My reading of the record reveals that the victim's physical helplessness was, although an essential element of the offenses charged, not a significant factual matter tried to the jury. Rather, the defendant pursued this issue primarily as a question of law to be determined by the trial court in his motion for a judgment of acquittal and postjudgment motions, and the state responded accordingly. In my view, the state's factually based arguments in this appeal are consistent with its argument before the trial court in response to the defendant's motions, namely, that the victim's ability to communicate consent at the time of the assault was a credibility based question of fact. Indeed, after the trial court determined, in denying the defendant's motions, that there was sufficient evidence of physical helplessness to present a jury question, the parties' summations bear out that the primary factual issue argued to the jury was whether the defendant had committed the sexual acts in question, rather than the victim's physical helplessness under the statute—with the victim's physical attributes, such as her bite and startle reflexes, rendering impossible the allegations that the victim had performed oral sex on the defendant. Thus, in my view, the state's argumentsin this certified appeal are consistent with how the case was tried, both with respect to legal matters determined by the trial court and factual matters argued to the jury.
Applying Scruggs to the facts of the present case, the majority posits that, “[a]t no time during the trial ... did the state challenge or dispute testimony establishing that the victim communicated displeasure through biting, kicking, scratching, screeching or groaning. Indeed, the state itself elicited much of this testimony, albeit in an attempt to establish for the jury that the victim was credible and perfectly capable of communicating her likes and dislikes. Nor did the state contend or otherwise suggest that these behaviors were simply manifestations of the victim's disabilities rather than volitional communicative acts intended to express displeasure. Likewise, the state did not proceed on the theory that the victim's behaviors merely reflected generalized anger or frustration.”
Specifically, in its opening summation, the state cited testimony that the victim has “the capabilities of an infant” in explaining briefly how she was physically helpless before moving on to explain how the other statutory elements were satisfied. In response, although the defendant mentioned briefly in his summation that the victim was not physically helpless because of evidence indicating her ability to bite, kick and screech, this was not a significant portion of his factual argument as a strategic matter. Rather, the defendant emphasized that “we're not saying [the victim's physical helplessness] matters at all” because “ this event, this sexual assault, never happened ”; (emphasis added); with the allegations of oral sexual activity being: (1) the result of the victim having been manipulated into making them; and (2) factually impossible based on the victim's bite and startle reflexes, as well as her positioning in her stander and wheelchair. The state's rebuttal summation did not address the physically helpless issue but, rather, focused on evidence of the consistency of the victim's accusations and the fact that she lacked the intellectual capacity to lie.
I note that it was, in my view, a sound strategy for the defendant not to distract the lay jury from his claims of factual impossibility and manipulation of the victim by arguing the rather counterintuitive proposition that the state had not proven the victim's physical helplessness-an issue whose complexity is demonstrated by this court's 4 to 3 division in this certified appeal.
A review of Cola v. Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351(1986), on which the majority relies in support of the proposition that the defendant's legal “argument to the trial court outside the presence of the jury is wholly irrelevant to [an inquiry under State v. Scruggs ], which is concerned solely with the theory of guilt that was presented to the jury,” demonstrates the overbreadth of the majority's reliance on the Scruggs rule in discounting the state's factual arguments in this appeal. As is demonstrated by this court's application of Cola in State v. Robert H., supra, 273 Conn. at 82, 866 A.2d 1255, this principle articulated in Cola and Scruggs, first explained in detail by the United States Supreme Court in Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), is “rooted in principles of due process of law” and is intended to protect the defendant's right to fair notice of the specific charged acts that form the basis for the criminal charges for which he is being tried. See State v. Robert H., supra, at 83–84, 866 A.2d 1255 (state could not use evidence that defendant had pushed child's neck down toward defendant's private parts to constitute sufficient evidence of physical touching element of risk of injury charges under § 53–21[1] when that act did not constitute factual basis of any charge against defendant); see also United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (describing Dunn and Cola as “involv[ing] a failure to charge the defendant in the indictment for the specific acts for which he was convicted”); Commonwealth v. Cheromcka, 66 Mass.App. 771, 775 n. 3, 850 N.E.2d 1088 (describing Dunn and Cola as cases in which “the allegedly criminal conduct relied upon on appeal was different from the acts or theory of guilt that was the focus of the evidence at trial”), review denied, 447 Mass. 1108, 853 N.E.2d 1060 (2006). Thus, I do not see any inconsistencies or variances in the state's theory of the conduct underlying the offenses charged that raise any due process concerns with respect to the sufficiency of the evidence analysis in this appeal. Compare Chiarella v. United States, 445 U.S. 222, 235–36, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980) (The court declined to consider an alternate ground for affirmance in a securities fraud case, namely, that the “petitioner breached a duty to the acquiring corporation” because “[t]he jury instructions demonstrate that [the] petitioner was convicted merely because of his failure to disclose material, [nonpublic] information to sellers from whom he bought the stock of target corporations. The jury was not instructed on the nature or elements of a duty owed by petitioner to anyone other than the sellers.”), and Dunn v. United States, supra, at 106, 99 S.Ct. 2190 (concluding that appeals court improperly based affirmance of false declarations conviction on petitioner's October testimony when trial “jury was instructed to rest its decision on [his] September statement”), and Cola v. Reardon, supra, at 693–94 (concluding that state appeals court improperly upheld state employee's criminal conflict-of-interest charges based on employee's conduct at bankruptcy proceeding involving debtor, rather than loan transactions that were focus of charges, arguments and jury instruction at trial), with United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir.1986) (rejecting defendant's claim that Dunn and Cola entitled him to acquittal on appeal on ground that “the theory that he ‘was not the bank robber, but was in knowing possession of bank loot is being presented for the first time on appeal’ ”), and Fenske v. State, 592 N.W.2d 333, 335–36 (Iowa 1999) (rejecting defendant's reliance on Dunn and Cola to uphold burglary conviction because “key issue throughout this case has been whether [the defendant] had a ‘right, license or privilege’ to enter the house” and indictment and jury instructions did not limit jury's consideration of which occupant of house had requisite standing to give or deny consent to entry).
In conclusion, I would hold that, given the wide range of evidence admitted in this trial concerning the victim's responses to various stimuli and her communication abilities, the resolution of credibility issues and the drawing of inferences from the wealth of conflicting testimony adduced at trial was grist for the jury's mill, and not for a majority of this court to redraw on appeal by impermissibly sitting as the “thirteenth juror.” See, e.g., State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 2005) (“[W]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.” [Internal quotation marks omitted.] ). Thus, although the majority's explication of the evidence in this case is an accurate recitation of much of the trial record, its approach simply is inconsistent with our well settled review of sufficiency challenges, which are conducted with an eye toward sustaining jury verdicts, even those with which this court may disagree. See, e.g., State v. Ovechka, supra, 292 Conn. at 540–41, 975 A.2d 1. Thus, I conclude that the Appellate Court improperly determined that there was insufficient evidence that the victim was physically helpless as that term is defined by § 53a–65 (6), and would reverse its judgment and remand the case to that court with direction to affirm the judgment of conviction.
The majority and the Appellate Court; see State v. Fourtin, supra, 118 Conn.App. at 49, 982 A.2d 261; suggest that “this appears to be a case in which the state ultimately proceeded against the defendant under the wrong statute.” See footnote 20 of the majority opinion. Although I conclude that there was sufficient evidence that the victim in this case was physically helpless as defined by § 53a–65 (6), given the closeness of this legal issue, I nevertheless agree with the majority that the state would have been far better advised not to abandon its original course of additionally prosecuting the defendant for sexual assault in the second degree in violation of § 53a–71 (a)(2), attempt to commit sexual assault in the second degree in violation of §§ 53a–49 (a)(2) and 53a–71 (a)(2), and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(B), all of which require a victim that is “mentally defective.” See footnote 20 of the majority opinion.
Indeed, the difficulty of proving that a disabled victim is physically helpless under § 53a–65 (6), particularly going forward in light of the majority's opinion in this case, counsels me to acknowledge the comprehensively briefed observation of the amici curiae office of protection and advocacy for persons with disabilities, Arc of Connecticut, and Developmental Disabilities Council of Connecticut, that it is imperative for the criminal justice system to “recognize that individuals with disabilities who are victims of sex crimes will not come forward if their voices are not heard or respected,” and that persons with cognitive or physical disabilities face increased risks of sexual victimization. Given the artfully expressed concerns of the amici, I urge the legislature to determine whether the current definition of physically helpless provides adequate protection for persons with physical disabilities from sexually assaultive conduct. See also footnote 13 of this dissenting opinion.
Accordingly, I respectfully dissent.