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STATE v. FOURTINâDISSENT
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 twentyfive year 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 ââ â[p]hysically helpless,â ââ even under
what the majority deems to be the ââhighly particularized
meaningââ of General Statutes § 53a-65 (6),1 as explicated by State v. Hufford, 205 Conn. 386, 399, 533 A.2d
866 (1987). I therefore respectfully disagree with the
majorityâs 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 §§ 53a49 (a) (2)2 and 53a-71 (a) (3),3 and sexual assault in the
fourth degree in violation of General Statutes (Rev. to
2005) § 53a-73a (a) (1) (C),4 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.
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. ââThe [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.5 She cannot walk and needs assistance in
performing the activities of daily living.6 She is nonverbal but communicates with others by gesturing and
vocalizing and through the use of a communication
board.7 To manifest her displeasure, she can kick, bite8
and scratch. The [victim] can also vocalize her feelings
by groaning or screeching.
ââIn 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 âaggravatedâ and
âscared.â In response to Chervenakâs inquiry, the [victim], by means of appropriate gestures9 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 Chervenakâs body parts.
A subsequent medical examination disclosed physical
symptoms consistent with the [victimâs] report that she
had been sexually assaulted.ââ Id., 46â47.
ââIn 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 juryâs function is to
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical.ââ (Internal quotation marks omitted.) State
v. Ovechka, 292 Conn. 533, 540â41, 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,10 namely, whether the victim
was physically helpless, a term that is statutorily defined
as ââunconscious or for any other reason . . . physically unable to communicate unwillingness to an act.ââ
(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,
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., 389â90. This court
first noted that the language of § 53a-65 (6) ââcontains
no terms not commonly used which might not be understood in their ordinary meaning,ââ and stated that,
ââ[s]ince the complainant was not unconscious, we are
concerned with whether she was physically able to
communicate her unwillingness to the act.ââ Id., 398.
Quoting Websterâs Third New International Dictionary
(1986), the court determined that the word ââcommunicateââ was plain and unambiguous, and meant ââ âto make
known: inform a person of . . . speak, gesticulate . . .
to convey information.â ââ11 State v. Hufford, supra, 398â
99. Rejecting the stateâs claim that the complainant,
who was unable to resist the alleged assault because
she was being restrained, but had ââprotested verbally,ââ
was ââphysically helplessââ; id., 398; the court observed
that, ââ[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
stateâs assertion that the complainant was unable to
communicate her âunwillingness to an act.â ââ Id., 399.
Accordingly, this court concluded that ââ[t]he record
contains no evidence tending to show that the complainant was physically helpless.ââ12 Id.
Consistent with our decision in State v. Hufford,
supra, 205 Conn. 399, case law from other jurisdictions
applying statutory language identical to that of § 53a65 (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 victimâs physical ability to
communicate consent or the lack thereof.13 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, ââ[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 victimâs ability to perceive and comprehend
her surroundings was very limited.ââ), and People v. Gonzalez, 62 App. Div. 3d 1263, 1264â65, 878 N.Y.S.2d 534
(sufficient evidence that victim with ââadvanced Alzheimerâs disease . . . was âphysically unable to communicate unwillingness to an actâ ââ), 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 defendantâs fellow hospital
patients and ââwere 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 . . . .ââ [Citation omitted.]), appeal
denied, 99 N.Y.2d 559, 784 N.E.2d 84, 757 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 Huntingtonâs 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, 201â202, 528 N.Y.S.2d 286 (1988) (The victim,
who ââsuffers from muscular dystrophy rendering her
paralyzed from the neck down and wheelchair bound,ââ
not physically helpless because she had ââclearly 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.ââ), and State v.
Bucknell, 144 Wn. App. 524, 529â30, 183 P.3d 1078 (2008)
(bedridden victim paralyzed from waist down by amyotrophic lateral sclerosis, commonly known as Lou Gehrigâs disease, not physically helpless because she was
ââable to talk, answer questions, and understand and
perceive informationââ).
Finally, in reviewing the evidence in this record, I
emphasize that ââ[w]hether a victim is physically helpless at any given moment is largely a question of fact for
the jury to decide.ââ (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. 384; 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 stateâs
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 juryâs verdict;
see, e.g., State v. Ovechka, supra, 292 Conn. 540â41;
there is legally sufficient evidence in the record to support the juryâs finding that the victimâs physical and
mental disabilities rendered her ââphysically unable to
communicate unwillingness to an act.ââ General Statutes
§ 53a-65 (6). With respect to the victimâs 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
victimâs brain to make her hands move so that she could
use the boardâtestimony that was demonstrated for
the jury when the victimâs 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
agitatedâwhich the jury reasonably could have
inferred was a possible, and indeed quite likely, reaction to a sexual advance by the defendant, who was
her motherâs boyfriendâshe would involuntarily ââfistââ
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 victimâs 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 educationâeither from
S or from any of her schools or care programsâthe
jury also reasonably could have inferred that the victim
had significant difficulty understanding and responding
to questions about sex.14
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 victimâs regular treating
physicians, testified that, in October, 2005, the victim
came in for treatment of an apparent rash ââwith [S] and
it was [S] who communicated with me since I could
not communicate with the [victim].ââ 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, Reyesâ 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. Vincentâs Medical Center
in Bridgeport who performed the sexual assault examination on the victim, answered in the negative when
asked whether he was ââable to discuss matters with
[the victim] while [he was] involved in collecting . . .
evidence in this case,ââ testifying that she was âânoncommunicativeââ throughout the examination. In assessing
the victimâs communicative abilities with respect to
matters pertaining to her body, the jury reasonably
could have credited the physiciansâ testimony regarding
how the victim simply could not communicate with
themâparticularly 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 juryâs finding
of physical helplessness was supported by sufficient
evidence.15
In concluding to the contrary, the majority echoes
the defendantâs 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 ââit is the rare case that does not involve a victim
who was physically helpless due to unconsciousness,
sleep or intoxication.ââ The defendant and the majority,
quite understandably, then rely heavily on People v.
Huurre, 193 App. Div. 2d 305, 307â308, 603 N.Y.S.2d
179 (1993), affâd, 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
ââa [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.ââ The court determined that the victimâs rudimentary communicative abilities16 and responses to
medical treatment ââmost vividly [typify] the problem
with this caseâthe 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.ââ Id., 308.
I disagree with the majorityâs reliance on Huurre
in applying § 53a-65 (6). First, as aptly noted by the
Arkansas Supreme Court in applying an identical definition, the statute ââonly requires physical helplessness,
not total incapacity.ââ (Emphasis added.) Dabney v.
State, supra, 326 Ark. 385. Second, the Appellate Divisionâs decision in Huurre, even if it comprehensively
reflects the state of the law in New York, nevertheless
is both nonbinding17 and, in my view, a wrongly decided
case that simply cannot be reconciled with the state
high courtâs prior admonition in People v. Teicher,
supra, 52 N.Y.2d 649, 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 victimâs ââlack of speech
does not inhibit her from communicating when she
wants or does not want somethingââ; People v. Huurre,
supra, 193 App. Div. 2d 307; the evidence of the victimâs
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 ââget 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.ââ Id., 307â308; see also
id., 308 (The court noted that ââwhen 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 exam-
ple of the victimâs 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.ââ). 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.18
Finally, the majority, in apparent agreement with the
defendantâs characterization of the stateâs factual arguments as ââradical and untenable reconstruction[s] of
how juries may consider and apply evidenceââ; (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 stateâs
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,
ââin 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.ââ (Internal quotation marks omitted.) Id., 718;
see also id., 718â19 (rejecting stateâs 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 defendantâs argument would have been injurious to any child
under General Statutes § 53-21); State v. Robert H., 273
Conn. 56, 83â85, 866 A.2d 1255 (2005) (under ââtheory
of the case doctrine,ââ state could not rely, on appeal,
on sexual act by defendant, evinced in record, to support juryâs verdict in response to sufficiency challenge
when state did not present that particular act at trial
as culpable conduct).
I respectfully disagree with the majorityâs application
of Scruggs and somewhat restrictive reading of the
record in the present case and the manner in which
this issue was tried.19 My reading of the record reveals
that the victimâs 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
stateâs factually based arguments in this appeal are consistent with its argument before the trial court in
response to the defendantâs motions, namely, that the
victimâs 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
defendantâs motions, that there was sufficient evidence
of physical helplessness to present a jury question, the
partiesâ 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
victimâs physical helplessness under the statuteâwith
the victimâs physical attributes, such as her bite and
startle reflexes, rendering impossible the allegations
that the victim had performed oral sex on the defendant.20 Thus, in my view, the stateâs arguments in 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.21
In conclusion, I would hold that, given the wide range
of evidence admitted in this trial concerning the victimâs
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 juryâs mill,
and not for a majority of this court to redraw on appeal
by impermissibly sitting as the ââthirteenth juror.ââ22 See,
e.g., State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739
(2005) (ââ[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 juryâs verdict.ââ [Internal quotation marks
omitted.]). Thus, although the majorityâs 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. 540â41. 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.
Accordingly, I respectfully dissent.
1
General Statutes § 53a-65 (6) provides: ââ âPhysically helplessâ means that
a person is unconscious or for any other reason is physically unable to
communicate unwillingness to an act.ââ
2
See footnote 2 of the majority opinion for the text of § 53a-49 (a) (2).
3
See footnote 1 of the majority opinion for the text of § 53a-71a (a) (3).
4
See footnote 3 of the majority opinion for the text of General Statutes
(Rev. to 2005) § 53a-73a (a) (1) (c).
5
Ralph Welsh, a clinical psychologist, described the victimâs total functioning as akin to someone between the ages of two and five years old, based
on a ââtotal compositeââ indicating ââsevere to profound deficit[s]ââ 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 victimâs suggestibility during
interviews and interrogations, compared the victim to a five year old child
who has been ââisolatedââ and has âânot had contact with anything other than
a certain limited world. . . . Sheâs not like the average five year old child
who has . . . much more life experiences.ââ
6
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.
7
The communication board utilized by the victim contains numerous
words, such as emotions, personsâ names, ââyesââ and ââno,ââ 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 victimâs use in spelling out more complex
requests, as she is able to spell at a fifth grade level.
8
There also, however, was testimony that the victimâs 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.
9
The victim ââpointed to her mouth and then to Chervenakâs crotch, and
to her chest area and then to her pubic area.ââ State v. Fourtin, supra, 118
Conn. App. 46 n.6.
10
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 ââphysically helpless.ââ Nevertheless, I view this legal question as
inextricably bound with the pure sufficiency issues herein. Put differently,
this is neither a ââtypicalââ statutory interpretation case involving the determination of a statuteâs 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.
11
This courtâs conclusion in State v. Hufford, supra, 205 Conn. 398â99,
that the definition of physically helpless is plain and unambiguous, accords
with the draftersâ view of § 53a-65 (6), which was enacted as part of the
comprehensive revision of Connecticutâs 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 Yorkâs Penal Law and considered it to be ââself
explanatory.ââ 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 ââself-explanatoryââ). Indeed, although the
legislature did not adopt the commissionâs 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 commissionâs proposed code nevertheless do not contain
any discussion about the meaning of or ambiguity in the definition of physically helpless.
12
Further, this court rejected the stateâs reliance on People v. Teicher, 52
N.Y.2d 638, 648â49, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981), for the proposition that the ââcomplainant was physically helpless by virtue of her inability
to move away from the defendant notwithstanding her ability to speakââ;
State v. Hufford, supra, 205 Conn. 398; noting that, in ââTeicher, 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 defendantâs
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, âthere
may be a decrease in the cerebral blood flow which could result in dizz[i]ness
or even unconsciousness,â and that chest compression could compound the
result, thereby leaving the question of the state of the victimâs helplessness
for the jury to decide.ââ Id.
13
I note that, in other jurisdictions, statutes addressing physically helpless
victims have aptly been criticized as ââmislabeledââ for this reason. See People
v. Morales, 139 Misc. 2d 200, 202, 528 N.Y.S.2d 286 (1988) (ââalthough [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 statuteââ); see also People v. Orda, 180 Misc. 2d 450, 454â55, 690 N.Y.S.2d
822 (1999) (finding sufficient evidence of ââ[f]orcible compulsionââ given
ââgreat disparity in physical condition between [the] defendant and his quadriplegic charge,ââ and noting that victim ââin fact, is physically helpless,ââ
although not legally so under ââstatutory definition which deserves reexaminationââ). 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 ââconsiderable variationââ
in the language of statutes protecting physically incapacitated victims,
observing: ââSometimes 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.ââ (Emphasis added.) 2 W. LaFave, Substantive
Criminal Law (2d Ed. 2003) § 17.4 (b), pp. 643â44. Thus, I note that a perhaps
more comprehensive definition is provided by, for example, N.C. Gen. Stat.
§ 14-27.1 (3) (2009), which ââdefines âphysically helplessâ as â(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.â ââ (Emphasis
altered.) State v. Atkins, 193 N.C. App. 200, 205, 666 S.E.2d 809 (2008); see
id., 205â206 (concluding that eighty-three year old victim with severe arthritis
who could only walk with aid of walker, ââneeded assistance with her everyday household chores and could only transverse steps or do other daily
errands with assistance,ââ was ââ âphysically helplessâ ââ because she could not
escape or ââactively oppose or resistââ 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.
14
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 Courtâs observation that ââ[n]o
evidence was offered at trial to establish whether the [victim] had access
to a communication board at the time of the alleged assaultââ; State v. Fourtin,
supra, 118 Conn. App. 50 n.10; is inapt, as well as representative of its
apparent reweighing of the evidence before the jury. Given the victimâs
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 Courtâs
reference to Stephen Hawking, ââthe celebrated author of A Brief History of
Time,ââ in support of its conclusion that ââsomeone cannot be described as
noncommunicative even though he suffers from a disease that requires him
to communicate by the use of a computer system.ââ Id., 51 n.11.
15
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 ââvery difficult to manageââ 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 physiciansâ 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 Sâ 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 victimâs 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 victimâs
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 dis-
senting opinion.
16
The New York court acknowledged that ââthere 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.ââ (Citations
omitted.) People v. Huurre, supra, 193 App. Div. 2d 309â10.
17
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 Yorkâs Penal Code;
see, e.g., State v. Albert, 252 Conn. 795, 810â11, 750 A.2d 1037 (2000); see
also footnote 11 of this dissenting opinion; we need not follow that stateâs
case law when it is unpersuasive or otherwise inapposite. See, e.g., State
v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978) (ââthe similarity of
language existing between the New York and Connecticut [P]enal [C]odes
does not compel a like constructionââ).
18
I acknowledge the defendantâs argument that the physiciansâ 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 ââcareful . . . not to ask too muchââ about how the victim responded
to the physical examinations, the defendant contends that the victimâs submission to the physical examination could have been viewed as ââphysically
indicating willingness. Query then, if she can communicate willingness, why
canât she communicate unwillingness?ââ The defendant himself, however,
had ample opportunity to elicit from the physiciansâ 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 victimâs genitalia or
the damage to her hymen. Further, the defendant touched on this point
during his brief cross-examination of Reyes, confirming Reyesâ testimony
that, although contact dermatitis of the genitalia is an itchy and painful
condition, the victim ââcouldnât communicate [that] to you,ââ and ââyou couldnât
tell from any communication from her whether it was painful or not painful
. . . .ââ In any event, the conclusory nature of the physiciansâ 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.
19
Applying Scruggs to the facts of the present case, the majority posits
that,ââ[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 victimâs disabilities rather than
volitional communicative acts intended to express displeasure. Likewise,
the state did not proceed on the theory that the victimâs behaviors merely
reflected generalized anger or frustration.ââ
20
Specifically, in its opening summation, the state cited testimony that
the victim has ââthe capabilities of an infantââ 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 ââweâre not saying [the victimâs physical helplessness] matters at allââ because ââthis event, this sexual assault, never
happenedââ; (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 victimâs bite and startle
reflexes, as well as her positioning in her stander and wheelchair. The stateâs
rebuttal summation did not address the physically helpless issue but, rather,
focused on evidence of the consistency of the victimâs 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 victimâs physical helplessnessâan issue whose
complexity is demonstrated by this courtâs 4 to 3 division in this certified
appeal.
21
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 defendantâs legal ââargument 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,ââ demonstrates the overbreadth of the majorityâs reliance on the Scruggs rule in discounting the stateâs factual arguments
in this appeal. As is demonstrated by this courtâs application of Cola in State
v. Robert H., supra, 273 Conn. 82, 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 âârooted in principles of due process of lawââ and is intended to
protect the defendantâs 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, 83â84 (state could not use evidence that defendant had
pushed childâs neck down toward defendantâs 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 ââinvolv[ing] a failure to charge
the defendant in the indictment for the specific acts for which he was
convictedââ); Commonwealth v. Cheromcka, 66 Mass. App. 771, 775 n.3, 850
N.E.2d 1088 (describing Dunn and Cola as cases in which ââthe allegedly
criminal conduct relied upon on appeal was different from the acts or theory
of guilt that was the focus of the evidence at trialââ), review denied, 447
Mass. 1108, 853 N.E.2d 1060 (2006). Thus, I do not see any inconsistencies
or variances in the stateâs 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, 235â36, 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 ââpetitioner breached a duty to the acquiring
corporationââ because ââ[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.ââ), and Dunn v.
United States, supra, 106 (concluding that appeals court improperly based
affirmance of false declarations conviction on petitionerâs October testimony
when trial ââjury was instructed to rest its decision on [his] September
statementââ), and Cola v. Reardon, supra, 693â94 (concluding that state
appeals court improperly upheld state employeeâs criminal conflict-of-interest charges based on employeeâs 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 defendantâs claim that Dunn and Cola entitled
him to acquittal on appeal on ground that ââthe theory that he âwas not the
bank robber, but was in knowing possession of bank loot is being presented
for the first time on appealâ ââ), and Fenske v. State, 592 N.W.2d 333, 335â36
(Iowa 1999) (rejecting defendantâs reliance on Dunn and Cola to uphold
burglary conviction because ââkey issue throughout this case has been
whether [the defendant] had a âright, license or privilegeâ to enter the houseââ
and indictment and jury instructions did not limit juryâs consideration of
which occupant of house had requisite standing to give or deny consent
to entry).
22
The majority and the Appellate Court; see State v. Fourtin, supra, 118
Conn. App. 49; suggest that ââthis appears to be a case in which the state
ultimately proceeded against the defendant under the wrong statute.ââ 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 §§ 53a49 (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 ââmentally defective.ââ 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 majorityâs 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 âârecognize that individuals with disabilities who are victims of sex crimes will not
come forward if their voices are not heard or respected,ââ 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.
