Opinion
KNLCR150128007
03-13-2017
State of Connecticut v. Jarah Davis
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
Barbara Bailey Jongbloed, J.
On January 13, 2017, the defendant was convicted by a jury of sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(3) (sexual intercourse with a person who is physically helpless) and delivery of alcohol to a minor in violation of General Statutes § 30-86(b)(2). The defendant was found not guilty of sexual assault in the first degree in violation of § 53a-70(a)(1). The facts of this case arise out of an incident involving the defendant and a sixteen-year-old female victim, " M.B." On January 19, 2017, the defendant filed a motion for judgment of acquittal after verdict as to the sexual assault conviction. The state filed a memorandum in opposition to the motion March 10, 2017.
DISCUSSION
The defendant sets forth three arguments in support of his motion. First, the defendant contends that no reasonable jury could have found that the victim was physically helpless under Connecticut jurisprudence. Second, the defendant claims that the state violated State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987) when it charged two substantively different crimes for a single set of facts. Finally, the defendant argues that he was prejudiced when the state filed the substitute information because it changed its theory of the case " on the eve trial."
In reviewing a defendant's motion for judgment of acquittal, the court must " first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict . . . [T]hen determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986). " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1986).
a. Legal Sufficiency of Count Two
The defendant has incorporated the law, facts, and oral arguments previously set forth in his motion to dismiss count two into his motion for judgment of acquittal after verdict. The defendant's central argument in support of his motion to dismiss count two was that under State v. Fourtin, 307 Conn. 186, 52 A.3d 674 (2012), the victim's recitation of the incident prevented any possible finding of physical helplessness as defined under Connecticut law.
" Physically helpless means that a person is (A) unconscious, or (B) for any other reason, is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact." General Statutes § 53a-65(6); see also State v. Fourtin, supra, 307 Conn. 198. " [T]he word 'communicate' . . . mean[s] 'to make known: inform a person of . . . speak, gesticulate . . . to convey information.'" State v. Fourtin, supra, 307 Conn. 199, quoting State v. Hufford, 205 Conn. 386, 398-99, 533 A.2d 866 (1987).
In the present case, the victim M.B. testified on January 10, 2017. On direct examination, she testified as to the approximate amount of alcohol she drank. She indicated that prior to arriving at the defendant's home, she had consumed beer at a family party with the permission of her parents. After arriving at the defendant's home, she was first provided with a glass of wine, which she drank, and then was provided, in the defendant's " man-cave, " more than one shot of hard alcohol, a small glass of Dewars and a small glass of vodka, all of which she consumed. With regard to her condition, M.B. testified that she was drunk. She described the sexual contact with the defendant, stating " I was on the ground and I couldn't move ." She testified further as follows:
Q: When you say you couldn't move, describe what you mean.
A: It was the weirdest feeling. I could not move I was so incapacitated . I just remember staring at the ceiling and I felt him doing that to me. I could not fight back .
Q: Were you able to speak?
A: No .
In reviewing M.B.'s testimony, the court finds that the jury reasonably could have concluded that the victim was physically unable to resist an act of sexual intercourse or to communicate an unwillingness to the act of sexual intercourse. Specifically, the jury could have found that the victim's statements indicating her incapacitation, and her inability to move, speak or fight back rendered her physically helpless. The jury reasonably could have found, and did find, upon consideration of all of the victim's testimony, that she was physically unable to resist or unable to communicate an unwillingness to engage in sexual intercourse. Thus, the court finds that there was sufficient evidence to support the guilty verdict for sexual assault in the second degree.
b. State v. Hufford
The defendant relies on State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987) in support of his motion to dismiss. In Hufford, the defendant was charged " in the substitute information and bill of particulars with intentionally subjecting the complainant to sexual contact while she was physically helpless and/or without her consent." State v. Hufford, supra, 205 Conn. 395. On appeal, the defendant claimed that " his constitutional rights to proper notice, to prepare an effective defense and to a unanimous jury verdict [had] been violated . . ." State v. Hufford, supra, 205 Conn. 396. The court stated that: " An information which charges two or more separate offenses in the alternative is fatally defective because of its failure adequately to apprise the defendant of the specific charges against him." State v. Hufford, supra, 205 Conn. 397. The court also indicated that, " [n]o such vulnerability attaches, however, to an information that charges the defendant with alternate methods of committing one substantive crime." State v. Hufford, supra, 205 Conn. 397. Additionally, the court in Hufford discussed whether the defendant, " was prejudiced or unfairly surprised by the charging documents." State v. Hufford, supra, 205 Conn. 397.
In the present case, the state filed a substitute information on December 29, 2016, prior to jury selection, which began on January 3, 2017. The substitute information contained an additional count of sexual assault in the second degree of a person who is physically helpless. The factual allegations underlying the second count were known to the defendant throughout the case and were based, in part, upon M.B.'s original statement to the police on June 4, 2015. The warrant affidavit dated September 14, 2015 and statements to the police, fairly construed, reveal allegations that M.B. was so severely intoxicated that she was incapacitated, unable to communicate a lack of consent and rendered physically helpless. The defendant was not unfairly prejudiced or surprised by the substitute information because the factual foundation remained the same throughout the duration of this case. See State v. Hufford, supra, 205 Conn. 397.
Although the defendant contends that Hufford supports his position, Hufford presented circumstances where the state charged, in two separate counts, alternative methods of committing one substantive crime. The Hufford court found no error in the disjunctive charging method, but concluded that the general verdict of guilty precluded a determination of which subsection under 53a-73a the defendant was convicted. " A verdict rendered on a single count charging alternative methods of committing the same crime may be upheld only if there is sufficient evidence to support the verdicts as to each alternative charged." State v. Hufford, supra, 205 Conn. 399. " Unless there is sufficient evidence to support all alternatives, it would be impossible to determine whether the jury based its decision on an alternative theory of criminal liability for which there was no evidence." Id. In Hufford, the court found that there was no evidence tending to show that the complainant, who was being transported by ambulance in restraints, was " physically helpless, " and the verdict was set aside and the case remanded for a new trial. Id. The evidence in Hufford had established that despite the restraints, the complainant was able to communicate and did so throughout the transport. The issue of disjunctive charging raised in the Hufford case is not implicated here and, as set forth above, there was ample evidence to support the finding by the jury of physical helplessness as charged in the second count. See State v. Hufford, supra, 205 Conn. 397.
c. Prejudice to the Defendant
Finally, the defendant argues that he was unable to pursue an expert witness on the issue of physical helplessness and as a result was prejudiced. The defendant contends that " he was not offered a continuance or opportunity to pursue such expert testimony."
A careful review of the record, including the defendant's written motions and oral arguments, reveals that the defendant did not request a continuance for this purpose when the substitute information was filed prior to jury selection or at any time. The defendant has contended that he would have pursued an expert had count two been in the original information. The defendant, however, did not seek any such continuance or the opportunity to obtain an expert. Moreover, as explained above, the evidence underlying count two had been disclosed at the inception of the case. Thus, the court finds that the defendant was not prejudiced by the filing of the substitute information.
CONCLUSION
For the foregoing reasons, the defendant's motion for judgment of acquittal with respect to the conviction of sexual assault in the second degree is DENIED.
It is So Ordered.