State v. Chapman

Santaniello, J.,

dissenting. The Appellate Court improperly applied the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987), to alternative language occurring within the same statutory subdivision. In Williams we held that the trial court “erred in instructing the jury on a statutory alternative for which there was no supporting evidence.” Id., 364. The statutory alternatives under consideration, however, were specifically enumerated subdivisions of the statute.1 In support of the decision to apply the statutory alternative analysis, the Appellate Court opinion cites seven Connecticut cases. Six of those cases involve statutes with specifically enumerated subdivisions.2 The seventh, State v. Thompson, 197 Conn. 67, 495 A.2d 1054 (1985), involves the alternatives contained in General Statutes (Rev. to 1981) § 19-480a (a), now codified as § 21a- 278, possession of drugs with intent to sell and transportation of drugs with intent to sell. Possession and transportation, however, are different actions. Similarly, entering premises unlawfully and remaining unlawfully after a lawful entry are different actions. See State v. *637Belton, 190 Conn. 496, 461 A.2d 973 (1983). A statutory alternative analysis is appropriate only if the statute contains specifically enumerated subdivisions or proscribed different actions.

General Statutes § 53a-70 (a), on the other hand, proscribes one action, compelled sexual intercourse. State v. Tucker, 226 Conn. 618, 646, 629 A.2d 1067 (1993). “[T]he language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime . . . .” State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); State v. Tucker, supra. “[Compulsion is an essential element of the crime of sexual assault in the first degree, either by the actual use of force or the threat of use of force which reasonably causes fear of physical injury.” State v. Rodgers, 198 Conn. 53, 60, 502 A.2d 360 (1985).

The history of § 53a-70 (a) supports this view.3 Prior to 1975, a person who compelled sexual assault could be charged with sexual misconduct, a misdemeanor, defined in General Statutes § 53a-71 (a) as sexual intercourse with a female without her consent, or rape, a felony, defined in General Statutes § 53a-72 (a) as sexual intercourse with a female by forcible compulsion. General Statutes (Rev. to 1975) § 53a-66 states that “[l]ack of consent results from (1) forcible compulsion . . . .” General Statutes (Rev. to 1975) § 53a-65 (8) defines forcible compulsion as “physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately *638be kidnapped.” Forcible compulsion, therefore, encompassed both the use of force and the threat of use of force.

In 1975, the legislature revised § 53a-70 (a)4 to change compelled sexual assault from a misdemeanor to a felony and to include within the statute’s purview assaults in which the victim does not resist.5As Justice Berdon notes in the majority opinion, Senator Betty Hudson stated that “[t]he present statute requires that there be force, force enough ... to overcome earnest resistance, whatever that means. Well in most rape cases, there is no resistance. In fact, in eighty-seven percent of rape cases, there is no resistance and there is no resistance because the rapist has a knife or a gun and threatens the woman’s life or that of her child.” 18 S. Proc., Pt. 7, 1975 Sess., p. 3222. The force that Senator Hudson is referring to is force that had been required by the victim, not the rapist.

Use of force and threat of use of force have never been considered statutory alternatives. Beginning with the definition of forcible compulsion, using force and threatening to use force have been considered two methods of compelling sexual assault. Contrary to Justice Berdon’s assertion, the history of § 53a-70 supports *639the contention that use of force and threat of use of force have always been considered together, and does not indicate an intent to separate them.

We have previously held that the trial court did not unconstitutionally enlarge the offense when the court instructed the jury on either use of force or threat of use of force even though the information only stated use of force. State v. Franko, 199 Conn. 481, 488-89, 508 A.2d 22 (1986). Recently, we held that the alternatives, use of force and threat of use of force, are not conceptually distinct and, therefore, that no unanimity instruction is required regarding which method was used to compel sexual intercourse. State v. Tucker, supra. “ ‘[T]he element of compulsion, the utter subjugation of the victim’s free will, is no different in character if it results from the raised fist or the first blow. . . . [W]e are convinced that the phrase “use or threat of force or violence” is a sound and reasonable attempt to capture the essence of the proscribed conduct [sexual assault] . . . .’” Id., 648, quoting State v. Baldwin, 101 Wis. 2d 441, 450-52, 304 N.W.2d 742 (1981); see also State v. Milardo, 224 Conn. 397, 413, 618 A.2d 1347 (1993) (although compelled sexual intercourse may be performed in several ways, General Statutes § 53a-65 [2] defines only one offense). Because we have already held that use of force and threat of use of force are not conceptually distinct, and because they have consistently been grouped together as constituting the element of compulsion required to commit sexual assault, the use of force and threat of use of force cannot be statutory alternatives.

In addition, the trial court charged the jury on use of force and threat of use of force even though the information did not state that the defendant had threatened to use force. We disapprove of the practice of reading an entire statute in the charge to the jury where the pleadings or the evidence support only a portion of the *640statute. State v. James, 211 Conn. 555, 583, 560 A.2d 426 (1989). Any error derived from the fact that the jury charge did not conform to the information, however, is harmless beyond a reasonable doubt.

“ ‘ “The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S. Ct. 2160, 45 L. Ed. 2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” ’ Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Ardsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992). The proper harmless error inquiry is whether the error affected the outcome of the case. State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990).

I am not persuaded that it is more probable than not that the jury’s verdict was affected by the erroneous instruction. The information stated and all the evidence presented at trial demonstrated that the assault was accomplished by the use of force. No evidence suggested that the defendant threatened to use force. The court instructed the jury to consider only the evidence admitted at trial in reaching a verdict. The jury charge taken as a whole and this court’s holding in State v. Tucker, supra, that the use of force and the threat of the use of force are not conceptually distinct indicate that any error was harmless beyond a reasonable doubt.

Accordingly, I would reverse the judgment of the Appellate Court and affirm the judgment of the trial court.

The court charged the jury under subdivisions (1) and (2) of General Statutes § 53a-133, even though the state presented evidence to support the defendant’s conviction under subdivision (1) only.

State v. Williams, 202 Conn. 349, 521 A.2d 150 (1987) (General Statutes § 53a-133 [1] and [2]); State v. Silveira, 198 Conn. 454, 503 A.2d 599 (1986) (General Statutes § 53a-55 [a] [1] and [3]); State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985) (General Statutes § 53a-55 [a] [1], [2] and [3]); State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984) (General Statutes § 53a-55 [a] [1], [2] and [3]); State v. Marino, 190 Conn. 639, 462 A.2d 1021 (1983) (General Statutes § 53a-11 [a] [1], [2] and [3]); State v. Reyes, 19 Conn. App. 695, 564 A.2d 309, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989) (General Statutes § 53a-133 [1] and [2]).

In a discussion of sexual assault of an unconscious person, this court stated that General Statutes § 53a-70, as revised by Public Acts 1975, No. 75-619, contained the element of sexual intercourse by forcible compulsion, one element of rape formerly contained in General Statutes § 53a-72. State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985).

Section 3 of No. 75-619 of the 1975 Public Acts revised General Statutes § 53a-70 (a) to read: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

The designation (2) was retained from the previous wording of § 53a-70 (a), which had distinguished between persons less than eighteen years of age and persons in the custody of the law or detained in a hospital. General Statutes (Rev. to 1981) § 53a-70 (a) does not include this numerical designation.

General Statutes § 53a-72 was repealed at the same time. Public Acts 1975, No. 75-619, § 7.