State v. Albert

HENNESSY, J.,

dissenting. Because I agree with the defendant’s first three claims, which rest on his assertion that the trial court improperly limited the interpretation of the term “sexual intercourse” to the mere penetration of the labia majora1 and, therefore, improperly allowed the state to amend the information, I respectfully dissent.

If the trial court’s interpretation was improper, the defendant claims that (1) the trial court should have granted his motion for a judgment of acquittal at the close of the state’s case because the state failed to present evidence from which a jury could find vaginal penetration, as required by General Statutes (Rev. to 1991) § 53a-65 (2) and General Statutes (Rev. to 1991) § 53a-70 (a) (2), (2) the jury charge on sexual intercourse was improper and (3) there was insufficient evidence to sustain his conviction. The defendant does not argue that the facts charged could not constitute a crime, but rather that they cannot support a conviction of first degree sexual assault. Therefore, the trial court improperly allowed the state to amend the information and denied the motion for judgment of acquittal. I believe that because the trial court improperly interpreted the term sexual intercourse, the defendant’s conviction of first degree sexual assault must be reversed. In addition, because the trial court predicated the conviction of risk of injury to a child on a conviction of sexual *734assault in the first degree, the conviction of risk of injury to a child must be reversed and remanded for a new trial.

I

The defendant was charged by an amended long form information with first degree sexual assault. The information stated in relevant part that “on or about August 2, 1992, in Manchester, Connecticut, Ronald Joseph Albert engaged in sexual intercourse with a child under thirteen (13) years of age, to wit: he penetrated the labia majora of the genitalia of a three (3) year old girl with his finger or fingers, in violation of § 53a-70 (a) (2).” General Statutes (Rev. to 1991) § 53a-65 (2) provides that “ ‘[sjexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus . . . .” The state did not allege anal intercourse, fellatio or cunnilingus in the amended information. Therefore, the dispositive issue was whether penetration of the labia majora alone constitutes vaginal intercourse.

In support of its interpretation, the trial court relied on § 53a-65 (2), which provides in relevant part that “[pjenetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body . . . .” The trial court interpreted the phrase to mean genital area or anal opening. It is important to note that the court stated, when it ruled on the defendant’s motion for a judgment of acquittal and again in its charge to the jury, that it was undisputed that no penetration of the victim’s vagina occurred.

The court improperly interpreted the phrase “into the genital or anal opening” as meaning into the genital area or anal opening. The term genital, as used in § 53a-65 (2), is an adjective, not a noun, and to expand the meaning of it to include the genital area is nonsensical. The legislature did not use the noun “genitals,” which *735would have supported the trial court’s interpretation. The adjectives “genital” and “anal” both modify the noun “opening.”

The majority opinion holds that vaginal intercourse can be committed by the penetration of the labia majora alone. Vaginal intercourse, however, requires more than penetration of the labia majora; it requires penetration of the vagina. Of the four alternative definitions of sexual intercourse provided in § 53a-65 (2), cunnilingus is the only theory that does not require penetration for the commission of the offense. State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). “ ‘Cunnilingus is sexual stimulation of the clitoris or vulva by the lips or tongue.’ ” State v. Storlazzi, 191 Conn. 453, 463, 464 A.2d 829 (1983), quoting State v. Kish, supra, 764. The clitoris is enclosed by the labia majora. H. Gray, Anatomy of the Human Body (29th Ed. Goss 1973), p. 1330. The labia majora must necessarily be penetrated or passed through to reach the clitoris. Therefore, because penetration of the genital opening is not required for cunnilingus but is required for vaginal intercourse, penetration of the genital opening must require more than the penetration of the labia majora alone.

Moreover, the majority’s interpretation of vaginal intercourse is antithetical to its common meaning. “In the absence of special circumstances, the words of a statute are to be accorded their common meaning. General Statutes § 1-1 [a]; Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 474, 217 A.2d 698 [1966].” Torrington Water Co. v. Board of Tax Review, 168 Conn. 319, 323, 362 A.2d 866 (1975). Furthermore, it is a well established rule that “penal statutes are to be strictly construed”; State v. McCarthy, 25 Conn. App. 624, 626, 595 A.2d 941, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991); and “are to be interpreted strictly against the state.” (Emphasis added.) State v. Desimone, 241 Conn. 439, 455, 696 A.2d 1235 (1997). These *736principles underlie “the general rule of statutory interpretation that the intent of the legislature is to be found not in what it meant to say, but in what it did say. State v. Roque, 190 Conn. 143, 150, 460 A.2d 26 (1983), quoting Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). In ascertaining that intent, [i]f the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990), quoting State v. Mattioli, [210 Conn. 573, 576, 556 A.2d 584 (1989)]. Further, interpretation of a penal statute must accord with common sense and commonly approved usage of the language. State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986); State v. Roque, supra, 151.” (Internal quotation marks omitted.) State v. McCarthy, supra, 626.

The term vaginal is an adjective and means “of ... a vagina.” Webster’s Third New International Dictionary. The majority’s conclusion that vaginal intercourse can be committed by the penetration of the labia majora, when the state concedes that no vaginal penetration occurred, is contrary to common sense and the commonly approved usage of the term. I believe that penetration of the vagina, however slight, is required to commit vaginal intercourse.

The majority’s reliance on the long history of the language, “[p]enetration, however slight,” is misplaced and does not advance the discussion. The resolution of the defendant’s claim requires us to determine what must be penetrated.

The linchpin of the majority’s argument is that “the legislature did not intend to change the ordinary meaning of the words ‘sexual intercourse.’ The words ‘vaginal intercourse’ were intended to be descriptive so as to differentiate sexual intercourse in its ordinary meaning from what were previously considered to be the deviate forms of sexual intercourse: fellatio, cunnilingus and

*737anal intercourse.” The majority fails to recognize, however, that the ordinary meaning of sexual intercourse always required penetration of the vagina.

First, as the majority correctly points out, the concept of minimal penetration was first used in the rape context. State v. Shields, 45 Conn. 256 (1877). In Shields, however, the examining physician testified that “ ‘penetration had taken place as far as the internal organs of generation, whether further or not I cannot from my examination say ....’” Id., 258. The defendant, in essence, requested that the court instruct the jury that complete penetration was required to constitute rape. Id., 259. The court instructed the juiy that penetration was absolutely necessary, but that “ ‘the least penetration is sufficient’ ” .... Id. Vaginal penetration was not disputed, only the degree of vaginal penetration.

Second, “[p]rior to 1975, sexual intercourse was defined by General Statutes (Rev. to 1975) § 53a-65 as having ‘its ordinary meaning and occurs upon any penetration ....’” State v. Siering, 35 Conn. App. 173, 180, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). “[T]he ‘ordinary meaning’ of sexual intercourse contemplates a continuous act of penetration ....’” Id., 181. It is clear that the ordinary definition of sexual intercourse prior to 1975 involved penetration of the vagina. “Public Act 75-619 changed the definition in part to provide: ‘Penetration, however slight, is sufficient to complete vaginal intercourse ....’” Id., 180-SI. This court has held that the amendment did not change the ordinary meaning of sexual intercourse, but rather construed “the statutory reference to penetration as establishing the minimum amount of evidence necessary to prove that intercourse has taken place.” Id., 182.

“It is a basic principle of law that common sense is not to be left at the courtroom door; State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Perez, *73810 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987); and courts will not pretend to be more ignorant than the rest of mankind. Masline v. New York, N. H. & H. R. Co., 95 Conn. 702, 709, 112 A. 639 (1921). In anybody’s everyday lexicon, continued penetration of the female sex organ by the male sex organ ... is factually sexual intercourse’ . . . .” (Citation omitted; internal quotation marks omitted.) State v. Siering, supra, 35 Conn. App. 184.

“When an information sufficiently sets out the offense with which a defendant is charged, ‘the state is limited to proving that the defendant has committed the offense in substantially the manner described.’ ” State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986); see State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Cole, 8 Conn. App. 545, 553, 513 A.2d 752 (1986). The state had the burden to prove, therefore, that the defendant engaged in sexual intercourse, namely vaginal intercourse, by penetrating the labia majora. Under § 53a-65 (2), however, penetration of the labia majora alone cannot constitute vaginal intercourse.

The facts charged in the amended information cannot, even if proved, constitute vaginal intercourse, which is required to support the defendant’s conviction under § 53a-70 (a) (2). The pivotal issue is not whether the act allegedly committed by the defendant could constitute a crime under this section if properly charged, but whether the facts as charged constitute a crime under this statutory section. Therefore, the trial court improperly allowed the state to amend the information to allege that penetration of the labia majora alone constituted sexual intercourse and improperly denied the defendant’s motion for a judgment of acquittal.

I would reverse the judgment and remand the case with direction to render judgment of not guilty on the charge of first degree sexual assault.

*739II

The defendant was also charged with risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21.1 believe that this conviction must be reversed and the case remanded for a new trial.

In its charge to the jury, the trial court instructed the jury as follows: “Now you may return a verdict of guilty on both counts or a verdict of not guilty on both counts. If you return a verdict of not guilty on the first count, that is sexual assault in the first degree, you ought to return a verdict of not guilty on the second count because the second count is triggered based on the evidence submitted on behalf of the first count. If, however, you find the defendant guilty on the first count, you are not required to find him guilty on the second count. That is, you may find him, if you so choose, guilty on the first count and not guilty on the second count.”2

In essence, the trial court predicated a conviction of risk of injury to a minor on a conviction of first degree sexual assault. “In the absence of a clear indication to the contrary, juries are presumed to follow the instructions that they are given. State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 338, 350, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997). We must presume that the finding of guilty of risk of injury to a child is in part based on the finding of guilty of first degree sexual assault.

I also believe that the trial court improperly restricted the defendant’s cross-examination of S regarding her prior history of sexual molestation as a child. It was *740more than one year after the incident, on November 30,1993, that N disclosed, for the first time to someone other than her mother, that “a bad man” had touched her and that the “bad man” was her Uncle Ronnie. In addition, S purchased a book for children dealing with good and bad touching. S testified that she read this book many times to N. The defendant argued that S’s past history was relevant to motive and bias because for more than one year, N told only S that the defendant touched her. The defendant sought to cross-examine S as to whether her own experience could have influenced N’s recollection of the events and identification of the defendant.

“[I]t is axiomatic that [a] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . State v. Joyce, 243 Conn. 282, 307, 705 A.2d 181 (1997). Moreover, [i]t is true that the scope and extent of cross-examination generally rest within the sound discretion of the trial court. . . . This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment. . . . [A]n important function of cross-examination is the exposure [of] a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . State v. Joyce, 45 Conn. App. 390, 397-98, 696 A.2d 993, cert. granted, 243 Conn. 904, 701 A.2d 336 (1997).” (Internal quotation marks omitted.) State v. Santiago, 48 Conn. App. 19, 24, 708 A.2d 969, cert. denied, 245 Conn. 901, 719 A.2d 1164 (1998).

Because I believe that the motion for a judgment of acquittal should have been granted as to the first degree sexual assault count and that the jury should not have been allowed to reach that count, or, in the alternative, *741that the trial court improperly restricted the defendant’s cross-examination of S, I would reverse the defendant’s conviction of risk of injury to a child and remand the case for a new trial on that count.

The labia majora axe the two outer folds of skin that enclose the external genital organs of the female. See H. Gray, Anatomy of the Human Body (29th Ed. Goss 1973), p. 1330; Webster’s Third New International Dictionary.

In reversing the defendant’s conviction, I do not reach the propriety of the trial court’s instruction.