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STATE OF CONNECTICUT v. SAMUEL M.*
(SC 19578)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued October 17—officially released December 27, 2016
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Patricia M. Froehlich, former
state’s attorney, and Andrew J. Slitt, assistant state’s
attorney, for the appellant (state).
Bryan P. Fiengo, for the appellee (defendant).
Opinion
ROGERS, C. J. In this certified appeal, we are asked
to determine whether the state has satisfied its burden
to prove that a defendant whose case was automatically
transferred from the juvenile docket to the regular crim-
inal docket of the Superior Court was at least fourteen
years of age at the time he allegedly engaged in the
criminal conduct underlying the charged offenses. The
defendant, Samuel M., was charged by juvenile informa-
tion with the crimes of sexual assault in the first degree
in violation of General Statutes § 53a-70 and risk of
injury to a child in violation of General Statutes § 53-
21, based on seven incidents involving his minor cousin
(victim), which the state alleged to have occurred ‘‘on
or about June, 2009.’’ Based on the seriousness of the
offenses and the allegation that the defendant’s criminal
conduct occurred in June, 2009, when the defendant
was fourteen years old, the case was automatically
transferred from the juvenile docket to the regular crim-
inal docket of the Superior Court pursuant to General
Statutes (Rev. to 2009) § 46b-127 (a).1 After a jury trial,
the defendant was convicted of two counts of sexual
assault in the first degree and one count of risk of
injury to a child based on two separate incidents. The
Appellate Court vacated the defendant’s convictions,
holding that the trial court had improperly denied the
defendant’s posttrial motion to dismiss the amended
information because the state had failed to prove
beyond a reasonable doubt that the two incidents had
occurred after the defendant’s fourteenth birthday.
State v. Samuel M., 159 Conn. App. 242, 284–85, 123
A.3d 44 (2015). Because we agree with the Appellate
Court that the state did not establish under any burden
of proof that the defendant was fourteen years of age
at the time he committed the offenses of which he was
convicted, we affirm the judgment of the Appellate
Court.
On the basis of the evidence, the jury reasonably
could have found the following facts. The defendant
and the victim are first cousins. At all relevant times,
the defendant, the victim, and their grandparents lived
in houses on the same street in close proximity to each
other. The defendant was born on September 17, 1994.
The victim was born on December 31, 1998.
In June, 2009, when the victim attended middle
school, he would go to his grandparents’ house on Tues-
day and Thursday afternoons after school until one of
his parents arrived home. On those days, the defendant
was also frequently at their grandparents’ house. On
one occasion, the victim and the defendant went into
the woods behind the defendant’s home where they
stopped near a rock. The defendant forced the victim
to remove his clothing and engage in oral sex. The
defendant threatened to beat the victim with a baseball
bat if he did not comply.
On another occasion, after taking a bus after school
to his grandparents’ house, the victim went to his house
to complete his chores. The defendant subsequently
entered the victim’s house using a spare key that was
kept at their grandparents’ house. The defendant then
pushed the victim upstairs to the victim’s bedroom. The
defendant removed the victim’s clothing and forced him
to engage in oral and anal sex.
The victim testified that these incidents, and the five
other alleged incidents for which the defendant was
not convicted, occurred when the victim was ‘‘nine or
ten’’ years old. He further testified that the incidents
began in the autumn of the year he was in fourth grade
and occurred over a period of time with each incident
approximately one month apart. The victim testified
that in the fall of 2013, the year of the trial, he would
be entering his sophomore year of high school.
The victim’s mother testified that during the second
half of June, 2009, she discovered a photograph of the
victim’s penis on her cell phone. When she confronted
the victim about the photograph, he disclosed to her
that he had had sexual contact with the defendant. After
he made this disclosure in June, 2009, the victim and
the defendant were never left alone together.
The following additional facts and procedural history
are relevant to this appeal. After the Connecticut State
Police conducted an investigation in 2010, which
included a forensic interview of the victim, the state
obtained a juvenile arrest warrant for the defendant
based on allegations of seven incidents of sexual
assault. In the juvenile information/arrest warrant, the
defendant was charged with juvenile delinquency on
the basis of committing sexual assault in the first degree
in violation of § 53a-70, and risk of injury to a child in
violation of § 53-21, in or about June, 2009.2 The juvenile
court automatically transferred the defendant’s case
to the regular criminal docket of the Superior Court
pursuant to § 46b-127 (a) (1), because the defendant
had been charged with a class A and a class B felony
occurring in or about June, 2009, when he was fourteen
years of age. Subsequently, the defendant was arraigned
in Superior Court on the regular criminal docket. Prior
to trial, the state filed an information charging the defen-
dant with seven counts of sexual assault in the first
degree by use of force in violation of § 53a-70 (a) (1),
seven counts of sexual assault in the first degree for
sexual intercourse with a victim under the age of thir-
teen in violation of § 53a-70 (a) (2), and one count of
risk of injury to a child in violation of § 53-21 (a) (2).
During trial, the victim testified in detail regarding
seven alleged incidents, each of which formed the basis
for violations of both § 53a-70 (a) (1) and (2). At the
close of the state’s case-in-chief, the defendant moved
for a judgment of acquittal as to all counts. The trial
court granted the defendant’s motion for judgment of
acquittal on counts eleven and twelve on the ground
that the conduct alleged therein did not meet the defini-
tion of sexual contact pursuant to § 53a-70. The jury
found the defendant not guilty of six counts of sexual
assault in the first degree by use of force and three
counts of sexual assault in the first degree for sexual
intercourse with a victim under the age of thirteen. The
jury found the defendant guilty of one count of risk of
injury to a child and three counts of sexual assault in
the first degree for sexual intercourse with a victim
under the age of thirteen.
The defendant thereafter moved for a judgment of
acquittal on the four counts of which he was convicted,
and also moved to dismiss the amended information
and to transfer his case to the juvenile docket. The trial
court granted the defendant’s motion for judgment of
acquittal on the sexual assault alleged in count two on
the ground that the testimony at trial was insufficient
to prove that the incident, which the victim had testified
was the first of the seven alleged incidents, occurred
‘‘on or about June, 2009,’’ when the defendant unques-
tionably was fourteen years old. The court found, how-
ever, that the evidence, viewed in the light most
favorable to the state, reasonably permitted a finding
beyond a reasonable doubt that the incidents forming
the bases of counts six, ten, and fifteen alleging, respec-
tively, two counts of sexual assault in the first degree
and risk of injury to a child, occurred ‘‘on or about
June, 2009,’’ and therefore, the court denied the motion
for a judgment of acquittal on those counts. The court
also denied the defendant’s motion to dismiss counts
six, ten, and fifteen of the amended information without
further analysis. Subsequently, the court sentenced the
defendant to a total effective term of five years of incar-
ceration followed by five years of special parole.
On appeal to the Appellate Court, the defendant
claimed that the evidence was insufficient to support
his conviction of any of the charged offenses due to
inconsistencies in the victim’s testimony at trial and
also that the trial court improperly denied his motion
to dismiss based on the state’s failure to prove that he
committed any of the offenses of which he was con-
victed after attaining the age of fourteen. State v. Sam-
uel M., supra, 159 Conn. App. 245. The Appellate Court
held that the evidence was sufficient to support his
conviction, but that the trial court had improperly
denied the defendant’s motion to dismiss. Id., 245–46.
Specifically, the Appellate Court held that ‘‘if the statu-
tory age criteria defining the grounds for transfer under
§ 46b-127 (a) cease to be met, the defendant may not
be prosecuted, convicted, and sentenced as an adult.’’
Id., 264. The Appellate Court went on to state that ‘‘when
the state seeks to prosecute and convict a child for
felony offenses, the state bears the burden of establish-
ing the child’s eligibility to be tried and sentenced as
an adult. Thus, to be punishable as a criminal offense
in adult court, the offense must be shown to have
occurred on or after the defendant’s fourteenth birth-
day, and this must be proved beyond a reasonable
doubt.’’ Id., 268. Looking to the facts of the present
case, the Appellate Court concluded that ‘‘[w]hile the
original warrant, alleging that the acts occurred in June,
2009, may have been facially sufficient for a mandatory
transfer to the regular criminal docket pursuant to
§ 46b-127 (a), the evidence to support the state’s allega-
tions as to the time frame of the defendant’s alleged
conduct was woefully deficient. The state failed to
establish, by any burden of proof, that the defendant
was at least fourteen years old when he engaged in the
conduct underlying the convicted offenses. Hence, the
court had no authority to render judgment against him
as an adult offender. Accordingly, we conclude that the
court erred in denying the defendant’s motion to dismiss
the amended information and transfer his case back to
the juvenile docket.’’ Id., 284.
This court granted the state’s petition for certification
to appeal. State v. Samuel M., 319 Conn. 955, 125 A.3d
534 (2015). The state asks this court to determine: ‘‘1.
Did the Appellate Court correctly determine that in
[cases] automatically transferred from the juvenile
docket of the Superior Court to the regular docket of
the Superior Court pursuant to [§ 46b-127 (a)], the state
bears the burden of establishing the child’s eligibility
to be tried and sentenced as an adult? 2. If the answer to
the first question is in the affirmative, did the Appellate
Court correctly determine that the state must meet its
burden with proof beyond a reasonable doubt? 3. Did
the Appellate Court apply the proper standard of review
to the trial court’s decision denying the defendant’s
motion to dismiss and transfer the case to the juvenile
docket? [and] 4. If the answer to the third question is
in the affirmative, did the Appellate Court correctly
determine that the state failed to establish, by any bur-
den of proof, that the defendant was at least fourteen
years old at the time he committed the crimes?’’ Id.
At oral argument before this court, the state conceded
that, during the course of the prosecution, if the defen-
dant properly raises and challenges his age at the time
of the offense, then the state bears the burden to make
a prima facie case that satisfies the statutory elements
necessary for transfer. The state claims that it satisfied
its burden to prove that the defendant was at least
fourteen years old at the time of the conduct forming
the basis for his convictions, by either a preponderance
of the evidence or beyond a reasonable doubt.
The defendant asserts that the Appellate Court prop-
erly held that the state failed to prove, either beyond
a reasonable doubt or by a preponderance of the evi-
dence, that he was at least fourteen years old at the
time of the conduct underlying his convictions. We
agree with the defendant that the state failed to prove
by any standard of proof that he was at least fourteen
years of age at the time of the criminal conduct forming
the basis of the convictions.3
We initially address the standard of review for a trial
court’s denial of a motion to dismiss. ‘‘Because a motion
to dismiss effectively challenges the jurisdiction of the
court, asserting that the state, as a matter of law and
fact, cannot state a proper cause of action against the
defendant, our review of the court’s legal conclusions
and resulting denial of the defendant’s motion to dis-
miss is de novo.’’ (Internal quotation marks omitted.)
State v. Ward, 306 Conn. 698, 707, 52 A.3d 591 (2012).
‘‘Factual findings underlying the court’s decision, how-
ever, will not be disturbed unless they are clearly erro-
neous. . . . The applicable legal standard of review for
the denial of a motion to dismiss, therefore, generally
turns on whether the appellant seeks to challenge the
legal conclusions of the trial court or its factual determi-
nations.’’ (Internal quotation marks omitted.) State v.
Golodner, 305 Conn. 330, 338–39, 46 A.3d 71 (2012). The
determination of whether the defendant was fourteen
years of age at the time of the criminal conduct is a
factual determination subject to a clearly erroneous
standard of review. Insofar as the Appellate Court
stated that the standard of review for underlying factual
determinations was de novo; State v. Samuel M., supra,
159 Conn. App. 268; we disagree.
General Statutes § 46b-145 provides in relevant part
that ‘‘[n]o child shall be prosecuted for an offense before
the regular criminal docket of the Superior Court except
as provided in section 46b-127 . . . .’’ ‘‘The General
Assembly thus has expressed a preference for shielding
children from criminal liability except in clearly circum-
scribed situations.’’ State v. Torres, 206 Conn. 346, 360,
538 A.2d 185 (1988). ‘‘There is no dispute that adjudica-
tion as a juvenile rather than prosecution as an adult
carries significant benefits, chief among which are a
determination of delinquency rather than criminality;
General Statutes § 46b-121; confidentiality; General
Statutes § 46b-124; limitations with respect to sentenc-
ing; General Statutes § 46b-140; erasure of files; General
Statutes § 46b-146; and isolation from the adult criminal
population. General Statutes § 46b-133; see also In re
Tyvonne M., 211 Conn. 151, 158–61, 558 A.2d 661
(1989).’’ State v. Angel C., 245 Conn. 93, 103, 715 A.2d
652 (1998). ‘‘The additional protections afforded juve-
niles . . . demonstrate the legislature’s intent that chil-
dren accused of wrongdoing be accorded different
treatment from adults.’’ (Citations omitted.) State v.
Torres, supra, 360. The limitation on the prosecution of
juveniles before the regular criminal docket, however, is
not a limitation on the subject matter jurisdiction of
the court.4 ‘‘Rather than implicating subject matter juris-
diction, issues relating to transfer between the juvenile
and the regular criminal docket involve considerations
that are analogous to those of the law of venue.’’ State
v. Kelley, 206 Conn. 323, 332, 537 A.2d 483 (1988).
‘‘The juvenile transfer statutes establish a detailed
plan for transferring a case to the regular criminal
docket.’’ State v. Torres, supra, 206 Conn. 356. General
Statutes (Rev. to 2009) § 46b-127 (a)5 provides in rele-
vant part: ‘‘The court shall automatically transfer from
the docket for juvenile matters to the regular criminal
docket of the Superior Court the case of any child
charged with the commission of a capital felony, a class
A or B felony or a violation of section 53a-54d, provided
such offense was committed after such child attained
the age of fourteen years . . . . The child shall be
arraigned in the regular criminal docket of the Superior
Court at the next court date following such transfer
. . . . The file of any case so transferred shall remain
sealed until the end of the tenth working day following
such arraignment unless the state’s attorney has filed
a motion pursuant to this subsection, in which case
such file shall remain sealed until the court makes a
decision on the motion. A state’s attorney may, not later
than ten working days after such arraignment, file a
motion to transfer the case of any child charged with
the commission of a class B felony or a violation of
subdivision (2) of subsection (a) of section 53a-70 to
the docket for juvenile matters for proceedings in accor-
dance with the provisions of this chapter. The court
sitting for the regular criminal docket shall, after hear-
ing and not later than ten working days after the filing
of such motion, decide such motion.’’ General Statutes
(Rev. to 2009) § 46b-127 (c) provides in relevant part:
‘‘Upon the effectuation of the transfer, such child shall
stand trial and be sentenced, if convicted, as if such
child were seventeen years of age. . . . If the action
is dismissed or nolled or if such child is found not guilty
of the charge for which such child was transferred or
of any lesser included offenses, the child shall resume
such child’s status as a juvenile until such child attains
the age of eighteen years.’’
After a case has been transferred from the juvenile
docket to the regular criminal docket, a defendant chal-
lenging the statutory criteria for transfer may move to
dismiss the case pursuant to General Statutes § 54-566
and Practice Book § 41-8.7 See State v. Angel C., supra,
245 Conn. 122; State v. Torres, supra, 206 Conn. 350.
Once the defendant challenges the ability of the court
to convict and sentence him as an adult based upon
his age at the time of the underlying criminal conduct
for which the jury returned a guilty verdict, we hold
that the state bears the burden to prove the defendant’s
age. The state is clearly in the best position to prove
the date of the alleged conduct, particularly because in
any given case the defendant is most likely going to
deny that he engaged in any illegal conduct. Assuming,
without deciding, that a preponderance of the evidence
is the proper burden of proof to apply to the present
case, we hold that the state failed to meet its burden
in this case.
The defendant’s motion to dismiss was submitted to
the trial court after the jury returned its verdict. The
state filed a memorandum in opposition to the motion
to dismiss, arguing that a reasonable jury could have
found, based on the evidence admitted at trial, that the
defendant was fourteen years of age at the time of the
criminal conduct underlying the guilty verdicts. There-
fore, we evaluate the evidence presented at trial to
determine whether the state satisfied its burden to
prove that the defendant was fourteen years of age.
The victim testified that he was born on December
31, 1998. The arresting police officer testified that at
the time of his arrest the defendant stated to the officer
that his date of birth was September 17, 1994. On Sep-
tember 17, 2008, when the defendant turned fourteen
years old, the victim was nine years and eight and one-
half months old. Therefore, to establish that the defen-
dant was fourteen years of age at the time of the criminal
conduct, the state was required to prove either that the
conduct occurred at any period in time when the victim
was at least ten years old or that the conduct occurred
when the victim was only nine years old, but the date
of the conduct was on or after September 17, 2008, the
defendant’s fourteenth birthday.
The victim testified that the alleged incidents
occurred when he was nine or ten years old, and the
incidents occurred over a period of time with approxi-
mately one month between each successive incident.
Accordingly, if the first incident occurred when the
victim first turned nine years old, on December 31, 2007,
then all of the incidents could have occurred prior to the
defendant’s fourteenth birthday on September 17, 2008.
The victim testified that the first incident was the
one ‘‘behind the barn,’’ which was the offense charged
in counts one and two. Other than the fact that the
remaining six incidents occurred after this initial inci-
dent, the victim did not testify as to any specific time
period for those six incidents or provide evidence from
which a finder of fact could make a reasonable infer-
ence as to the timing thereof or the defendant’s age.
The victim’s mother testified that she discovered the
photograph of the victim’s penis on her cell phone and
confronted him about it in June of 2009, but there was
no evidence introduced at trial regarding when the pho-
tograph was taken in relation to either its discovery or
the last incident of sexual assault. We agree with the
Appellate Court that, in the absence of any testimony
as to when the photograph was taken or the proximity
of the taking of the photograph to any of the alleged
incidents, no finder of fact could use the discovery of
the photograph to make a reasonable inference that the
last alleged incident occurred in June, 2009. Even if
such an inference were reasonable, there is no evidence
from which a finder of fact could reasonably infer which
of the alleged incidents was the last incident.
In the absence of any testimony as to the order or
the specific time period of the individual incidents, a
finder of fact could not reasonably infer that the specific
incidents alleged in counts six and ten, or any of the
conduct that could have supported count fifteen,
occurred after the defendant’s fourteenth birthday.
Therefore, in ruling on the defendant’s motion to dis-
miss, there was no evidence that the trial court could
have relied on to find that the criminal conduct underly-
ing counts six, ten, and fifteen occurred on or after
September 17, 2008, the date of the defendant’s four-
teenth birthday.8
In sum, once the defendant challenged the transfer
of his case to the regular criminal docket on the basis
of his age, the state did not establish, by any burden
of proof, that the defendant was at least fourteen years
of age at the time of the criminal conduct underlying
the jury’s verdict of guilt.
The judgment of the Appellate Court is affirmed with
respect to vacating the defendant’s conviction and
remanding the case to the trial court with direction to
grant the defendant’s motion to dismiss and to transfer
the case to the juvenile docket, and the case is remanded
for a new trial on counts six, ten, and fifteen in accor-
dance with this opinion.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
Hereinafter, all references to § 46b-127 (a) are to the 2009 revision of
the statute.
2
We note, and the state conceded at oral argument before this court, that,
in cases where the underlying conduct is alleged to have occurred both
before and after the defendant’s fourteenth birthday, the state typically
specifies in the information that the alleged conduct occurred after the date
of the defendant’s fourteenth birthday and the trial court charges the jury
that it must find that the charged conduct occurred after that date. The
state did not follow this procedure in the present case. Because this practice
reduces the risk of a juvenile defendant being convicted for conduct that,
due to the defendant’s age, should remain on the juvenile docket, we support
this practice.
3
Because we agree that the state failed to establish by any burden of
proof that the defendant was fourteen years of age at the time of the charged
offenses, we do not address the parties’ remaining arguments as to what
burden applies.
4
In this appeal, the defendant does not claim that the trial court lacked
subject matter jurisdiction and the state does not dispute the defendant’s
ability to raise his claim regarding his age at the time of the offenses through
a motion to dismiss.
5
Section 46b-127 (a) has been amended several times since 2009 and,
most recently, the legislature amended that subsection to increase the age
of a defendant eligible for transfer to fifteen years of age at the time of the
alleged conduct and to exclude certain class B felonies from the automatic
transfer provision. See Public Acts 2015, No. 15-183, § 1.
6
General Statutes § 54-56 provides: ‘‘All courts having jurisdiction of crimi-
nal cases shall at all times have jurisdiction and control over informations
and criminal cases pending therein and may, at any time, upon motion by
the defendant, dismiss any information or order such defendant discharged
if, in the opinion of the court, there is not sufficient evidence or cause to
justify the bringing or continuing of such information or the placing of the
person accused therein on trial.’’
7
Practice Book § 41-8 provides: ‘‘The following defenses or objections, if
capable of determination without a trial of the general issue, shall, if made
prior to trial, be raised by a motion to dismiss the information:
‘‘(1) Defects in the institution of the prosecution including any grand
jury proceedings;
‘‘(2) Defects in the information including failure to charge an offense;
‘‘(3) Statute of limitations;
‘‘(4) Absence of jurisdiction of the court over the defendant or the sub-
ject matter;
‘‘(5) Insufficiency of evidence or cause to justify the bringing or continuing
of such information or the placing of the defendant on trial;
‘‘(6) Previous prosecution barring the present prosecution;
‘‘(7) Claim that the defendant has been denied a speedy trial;
‘‘(8) Claim that the law defining the offense charged is unconstitutional
or otherwise invalid;
‘‘or (9) Any other grounds.’’
8
We agree with the Appellate Court that this conclusion does not entitle
the defendant to a judgment of acquittal because the timing of the offense
is not an element of the crimes and there was sufficient evidence of each
element of the crimes of which he was convicted. In light of the many
differences between a delinquency proceeding on the juvenile docket and
a criminal trial on the regular docket, some of which may have significant
impacts on the outcome of a case, the appropriate remedy in this instance
is a transfer to the juvenile docket for a new trial and not merely a transfer
for judgment and sentencing.