State v. Owen

LANDAU, J.,

concurring in part, dissenting in part. I concur with the majority insofar as it affirms the judgment of conviction for sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21.1 disagree, however, with the majority’s conclusion that the evidence was insufficient to support the jury’s verdict of guilty on the charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). I must, therefore, respectfully dissent.

“ ‘The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. *149. . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.’ . . . State v. Wagner, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).” State v. Crosby, 36 Conn. App. 805, 820, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

The victim’s testimony established the following facts. The victim’s birthday was October 20, and she turned ten in October, 1989. The last time the defendant sexually abused her was when he performed an act of cunnilingus upon her sometime near her tenth birthday. The defendant moved out of the victim’s house in March or April, 1990, which was about six months after the incident occurred. Moreover, the time period surrounding the victim’s birthday in October, 1989, was the only time frame mentioned in connection with the “couch incident.”

The linchpin of the majority’s conclusion that the evidence was insufficient to allow the jury to find that the alleged act of sexual abuse occurred after October 1, 1989, is that it was elicited from the victim on questions that assumed facts not in evidence. This evidence, however, was admitted without objection. “If evidence is admitted without objection, it is given such weight as the trier of fact deems it is worth. State v. Rawls, [198 Conn. 111, 118, 502 A.2d 374 (1985)]; State v. Banks, 194 Conn. 617, 620, 484 A.2d 444 (1984); State v. Ruth, 16 Conn. App. 148, 152, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).” State v. Kulmac, 230 Conn. 43, 71, 644 A.2d 887 (1994).

*150“In cases in which . . . evidence has been admitted without objection, we have held that the trier of fact could have relied on . . . the matters stated therein, for whatever they were worth on their face. Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960); Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987); Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943). . . . [E]vidence is reliable to the extent that it has rational probative force. State v. John, 210 Conn. 652, 663, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 495-96, 636 A.2d 840 (1994).

“As explained by Professor McCormick: If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. . . . This principle is almost universally accepted. . . . The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, of the lack-of-knowledge qualification of a witness, or of the expertness qualification. 1 C. McCormick, Evidence (4th Ed. 1992) § 54, pp. 219-20. . . . [Ajppellate review of the sufficiency of the evidence . . . properly includes . . . evidence even if such evidence was admitted despite a purportedly valid objection.” (Citation omitted; internal quotation marks omitted.) State v. Carey, supra, 228 Conn. 496.

Construing the evidence admitted in the light most favorable to sustaining the verdict, the cumulative effect of the victim’s testimony that the couch incident *151occurred somewhere near her tenth birthday in October, 1989, together with her testimony that the defendant vacated the apartment in March or April, 1990, approximately six months after the incident, is sufficient evidence for the jury reasonably to have concluded that the alleged act occurred after October 1, 1989.

I would affirm the judgment as to count one.