State v. Laracuente

Arthur H. Healey, J.,

dissenting. I agree that the trial court did not err in refusing to order the state to specify the particular date on which the sexual assault occurred. I do not agree that there was sufficient evidence from which the jury could legally reach its verdict of guilty on the charge that the defendant did an act likely to impair the morals of a child in violation of General Statutes § 53-21.1

*526There is no problem with the statement of the majority that, in determining the sufficiency of the evidence claim, “we must determine 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.) State v. Scielzo, 190 Conn. 191,197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” It is also the jury’s prerogative to draw reasonable and logical inferences from the facts found proven. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). “A reasonable inference is a conclusion arrived at by a process of reasoning. This conclusion must be a rational and logical deduction from facts admitted or established by the evidence, when such facts are viewed in the light of common knowledge or common experience.” Samora v. Bradford, 81 N.M. 205, 207, 465 P.2d 88 (1970). We have acknowledged, as we must, that “ ‘[jjurors are not “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted.)’ ” State v. Scielzo, supra, 198 n.11, quoting Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981); see State v. Little, 194 Conn. 665, 673-74, 485 A.2d 913 (1984).

The child in this case was admittedly asleep throughout this bizarre episode. There is not one word of evidence in this case that she was ever anything but asleep. There is, therefore, not even a scintilla of evidence upon which the jury could base any reasonable inference that the child was aware in any fashion of her “victimization” by the defendant. This is so no matter how much common sense is factored into the deliberations of the *527trier of fact. In the Connecticut cases cited by the majority and those construing this statute which are not cited, the victim has actually been a victim because he or she has been aware of the reprehensible conduct of the defendant involved. Therefore, under the majority opinion, we are left with the “victimization” of a child who was obviously unaware at all relevant times of the defendant’s conduct. The § 53-21 count of the substitute information charged specifically that the defendant “engaged in conduct likely to impair the morals of a child under the age of sixteen,” and it specifically named that child. No amount of judicial gloss can alter the lack of any basis in the evidence for a reasonable inference that this conduct was likely to impair this child’s morals. No amount of judicial gloss can analytically supply a legislative intent that a child’s morals are likely to be impaired under the circumstances of this case.

Even though the child was only six years old at the time and perhaps could well not have comprehended the nature of the defendant’s action had she been awake, she would have, at the very least, been aware of his actions. Was § 53-21 ever intended to apply to such circumstances? I think not.

The defendant was also found guilty of the second count of the information of that charge that should have been the charge. That was one of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). In its instructions, the trial court charged the jury that “[sjexual contact . . . means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor and that is pleasure, satisfaction or delight of the actor or in this instance, the defendant.” No error is assigned to this instruction. The conviction under that statute does not depend on whether the victim is sleep*528ing. The second count of sexual assault in the fourth degree was that charge that was adapted to the law and the evidence in this case.

It can fairly be said that few, if any, acts overcome reasonable persons with more disgust and abhorrence than the sexual abuse of children. That, however, does not bar enforcing the rule of law in such a case, as it is here, where the evidence is patently insufficient to sustain a conviction on the first count in violation of § 53-21. I would, therefore, find error on the conviction of the charge under § 53-21 and direct a judgment of acquittal on that charge. I would, however, find no error on the count charging the violation of § 53a-73a (a) (1) (A).

Therefore, I dissent.

I agree with the majority that the state had to prove the four elements essential for a guilty conviction under General Statutes § 53-21 which it sets out in its opinion citing State v. Martin, 189 Conn. 1, 8, 454 A.2d 256 (1983).

I seriously question the majority’s analysis of the defendant’s claim that the trial court’s jury instructions on the risk of injury “created a conclusive presumption [as to one of the essential elements of the crime] or shifted the burden of proof to the defendant.” The majority’s conclusory declaration that in context “[i]t thus becomes clear that the statement that ‘[i]t is the act itself which determines whether there has been a violation of the statute’ is meant to point out to the jury that no specific intent to impair the morals of a child is required” at least inadvertently overlooks the formulation of the four essential elements of § 53-21 required by State v. Martin, supra. It is not the act itself that determines whether there has been a violation of the statute; it is proof of each of the four essential elements. “Instructions should be reviewed, inter alia, in terms of their effect upon the jurors who heard them . . . and so are to be read ‘to convey normal meanings to the jurors in the context of the case in which they are given’ . . . and‘as the jury might reasonably understand. . . [them].’” State v. Corchado, 188 Conn. 653, 666, 453 A.2d 427 (1982). Common sense suggests that this instruction could reasonably be understood, at the very least, to blur the individuality of two of the four essential elements: that the defendant had perpetrated an act upon the victim and that this act was likely to be injurious to her morals. See State v. Martin, supra.