State v. Wright ( 2015 )

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STATE OF CONNECTICUT v. BRIAN WRIGHT
(SC 19189)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 14—officially released December 1, 2015
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail Hardy, state’s attor-
ney, and Anne Mahoney, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
ESPINOSA, J. The defendant, Brian Wright, appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of aggravated sexual assault
of a minor in violation of General Statutes § 53a-70c
(a) (1) and (6),1 and one count each of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2), attempt to commit sexual assault in the first degree
in violation of General Statutes §§ 53a-49 and 53a-70
(a) (2), and unlawful restraint in the first degree in
violation of General Statutes § 53a-95. The defendant
seeks review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), of his claim that his
convictions and sentences for two counts of aggravated
sexual assault of a minor in violation of § 53a-70c (a) (1)
and (6) violate the prohibition against double jeopardy
because they constitute multiple punishments for the
same offense. The defendant contends that, notwith-
standing the fact that subdivisions (1) and (6) of § 53a-
70c (a) each require proof of a fact that the other does
not, the two subdivisions do not delineate separately
punishable offenses, but alternative methods by which
the state may seek an enhanced sentence for the com-
mission of the predicate offenses listed in § 53a-70c (a).
The state responds that because the two subdivisions
are separately punishable offenses pursuant to the test
set forth in Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), there is a rebutta-
ble presumption that multiple punishments pursuant to
§ 53a-70c (a) (1) and (6) do not run afoul of the double
jeopardy clause. Because there is no clear contrary
legislative intent either on the face of the statute or in
its legislative history, the state contends, the defendant
has failed to rebut that presumption and there is no
double jeopardy violation. We agree with the state and
affirm the judgment of conviction.
The jury reasonably could have found the following
relevant facts. On July 20, 2010, the victim, S, who was
ten years old at the time, was walking from his home
to the swimming pool at Pope Park in Hartford, where
he had been attending daily swim team practice that
summer. While S was on his way across the park to go
to the pool, he encountered the defendant, who stopped
him and asked him if he wanted to make some money.
When S responded ‘‘yes,’’ the defendant told S to come
with him. The two walked up a hill, into a wooded area
of the park, where they were alone. The defendant
asked S if he was nervous and S responded, ‘‘yeah.’’ S
then asked the defendant what type of job the defendant
had for him. ‘‘It’s a surprise,’’ responded the defendant.
The defendant then asked S for a hug, upon which S
took one step closer to the defendant, who immediately
enveloped S in a ‘‘bear hug’’ and simultaneously
squeezed his buttocks. S became afraid and pushed the
defendant away, spun around so that his back was to
the defendant and started to run. When the defendant
tried to stop S by grabbing his backpack, S let go of the
pack, then kicked the defendant and continued running.
The defendant tried to trip him by kicking the side of
his leg, but S escaped, running out of the park and
across the street to where he saw a man standing on
the sidewalk in front of a retail store. When S told him
what had happened, the man allowed S to use his cell
phone to call the police.
The defendant was subsequently arrested and, fol-
lowing a jury trial, was convicted of both counts of
aggravated sexual assault of a minor in violation of
§ 53a-70c (a) (1) and (6), and one count each of risk of
injury to a child in violation of § 53-21 (a) (2), attempt
to commit sexual assault in the first degree in violation
of §§ 53a-49 and 53a-70 (a) (2), and unlawful restraint
in the first degree in violation of § 53a-95. The court
subsequently sentenced the defendant to a total effec-
tive sentence of 120 years of incarceration, fifty-five
years of which are mandatory. Specifically, as to count
two for aggravated sexual assault in the first degree in
violation of § 53a-70c (a) (6), the defendant was sen-
tenced to fifty years of incarceration, twenty-five years
of which are mandatory.2 This appeal followed.
The parties agree that pursuant to the test set forth
in Blockburger v. United States, supra, 284 U.S. 304,
subdivisions (1) and (6) of § 53a-70c (a) set forth two
separately punishable offenses. Therefore, the sole
issue in the present case is whether there is clear evi-
dence of a contrary legislative intent that rebuts the
presumption under Blockburger that the two subdivi-
sions set forth separately punishable offenses for pur-
poses of the double jeopardy clause. The defendant
argues that the statutory language and legislative his-
tory of § 53a-70c rebut the presumption, by providing
clear evidence that the legislature intended in § 53a-70c
(a) merely to set forth aggravating factors that increased
the applicable mandatory minimum sentence for vio-
lating one of the predicate offenses listed in the statute.
The state responds that neither the statutory language
nor its legislative history provide the clear evidence of
legislative intent that is necessary to rebut the
Blockburger presumption. We agree with the state.
Because the defendant concedes that he did not raise
this claim at trial, we review his claim pursuant to State
v. Golding, supra, 213 Conn. 239–40. Under Golding, a
defendant may prevail on an unpreserved claim only if
the following conditions are met: ‘‘(1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third
prong of Golding). Because the record is adequate for
our review, and the defendant’s claim that the multiple
convictions violated his right against being placed in
double jeopardy is of constitutional magnitude, our
inquiry focuses on whether the violation alleged by the
defendant exists and deprived him of a fair trial.
A defendant’s double jeopardy challenge presents a
question of law over which we have plenary review.
State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012),
cert. denied, U.S. , 133 S. Ct. 1804, 185 L. Ed.
2d 811 (2013). ‘‘The double jeopardy clause of the fifth
amendment to the United States constitution provides:
[N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb. The double
jeopardy clause is applicable to the states through the
due process clause of the fourteenth amendment. . . .
This constitutional guarantee prohibits not only multi-
ple trials for the same offense, but also multiple punish-
ments for the same offense in a single trial.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993).
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. Blockburger v. United States, [supra, 284 U.S.
304]. This test is a technical one and examines only the
statutes, charging instruments, and bill of particulars
as opposed to the evidence presented at trial.’’ (Internal
quotation marks omitted.) State v. Bernacki, supra, 307
Conn. 9–10.
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. State v. Hill, 237
Conn. 81, 101, 675 A.2d 866 (1996). When the conclusion
reached under Blockburger is that the two crimes do
not constitute the same offense, the burden remains on
the defendant to demonstrate a clear legislative intent
to the contrary. See State v. Miranda, 260 Conn. 93,
127, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct.
224, 154 L. Ed. 2d 175 (2002); State v. Snook, [210 Conn.
244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109
S. Ct. 3258, 106 L. Ed. 2d 603 (1989)] . . . State v. Gon-
zales, 123 N.M. 337, 342, 940 P.2d 185 (App. 1997) (bur-
den does not shift away from defendant once it is
determined that defendant’s claim fails Blockburger
test).’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Alvaro F., 291 Conn.
1, 12–13, 966 A.2d 712, cert. denied, 558 U.S. 882, 130
S. Ct. 200, 175 L. Ed. 2d 140 (2009).
In the present case, the two counts brought against
the defendant for aggravated sexual assault against a
minor arose from the same incident, the defendant’s
assault on S in Pope Park on July 20, 2010. Pursuant
to Blockburger, therefore, the test to determine whether
the defendant was placed in double jeopardy by being
convicted of two subdivisions of § 53a-70c (a) is
whether each subdivision requires proof of a fact that
the other does not. Blockburger v. United States, supra,
284 U.S. 304. It is clear, and the parties agree, that this
test is satisfied.
Section 53a-70c (a) provides: ‘‘A person is guilty of
aggravated sexual assault of a minor when such person
commits a violation of subdivision (2) of subsection (a)
of section 53-21 or section 53a-70, 53a-70a, 53a-71, 53a-
86, 53a-87 or 53a-196a and the victim of such offense
is under thirteen years of age, and (1) such person
kidnapped or illegally restrained the victim, (2) such
person stalked the victim, (3) such person used violence
to commit such offense against the victim, (4) such
person caused serious physical injury to or disfigure-
ment of the victim, (5) there was more than one victim
of such offense under thirteen years of age, (6) such
person was not known to the victim, or (7) such person
has previously been convicted of a violent sexual
assault.’’ Although both subdivisions (1) and (6) of
§ 53a-70c (a) require the state to prove that the defen-
dant violated one of the predicate statutes, and also
that the victim is under thirteen years of age, each of
the subdivisions requires proof of an additional fact
that the other does not. Specifically, § 53a-70c (a) (1)
requires the state to prove that the defendant kidnapped
or illegally restrained the victim of the assault, while
§ 53a-70c (a) (6) requires the state to prove that the
defendant was not known to the victim.
Accordingly, unless there is clear evidence of a con-
trary legislative intent, either on the face of the statute
or in its legislative history, subdivisions (1) and (6) of
§ 53a-70c (a) constitute separately punishable offenses.
State v. Hill, supra, 237 Conn. 101. In other words,
because the Blockburger test is satisfied in the present
case, there is a presumption, albeit a rebuttable one,
that a defendant’s conviction under both subdivisions
for the same transaction does not violate the double
jeopardy clause.3
We turn first to the text of the statute. The defendant
contends that the structure and language of § 53a-70c
clearly evidences a legislative intent to provide the state
with seven alternative ways to seek a sentence enhance-
ment for the predicate statutes listed in § 53a-70c (a).
The defendant notes that § 53a-70c (a) first lists the
predicate statutes: § 53-21 (a) (2) (risk of injury to
child); § 53a-70 (sexual assault in first degree); § 53a-
70a (aggravated sexual assault in first degree); General
Statutes § 53a-71 (sexual assault in second degree);
General Statutes § 53a-86 (promoting prostitution in
first degree); General Statutes § 53a-87 (promoting
prostitution in second degree); and General Statutes
§ 53a-196a (employing minor in obscene performance).
These predicate offenses range from class A felonies
to class C felonies, and are punishable by widely varying
sentencing ranges, from one year to twenty-five years.
Some of the predicate offenses, such as sexual assault in
the first degree in violation of § 53a-70, have mandatory
minimum sentences; others, such as promoting prosti-
tution in the second degree in violation of § 53a-87, do
not. For all of these predicate offenses, however, if the
victim is under thirteen years of age and the state proves
one of the seven additional factors set forth in the
disjunctive in § 53a-70c (a), the sentencing range
increases dramatically, with a maximum sentence of
fifty years and a mandatory minimum sentence of
twenty-five years. General Statutes § 53a-70c (b). There-
fore, the defendant argues, rather than setting forth
seven different offenses, the subdivisions of § 53a-70c
(a) merely set forth aggravating factors.
That conclusion, the defendant argues, finds further
support in the use of the phrase ‘‘such offense’’ to refer
back to the predicate offenses listed in § 53a-70c (a).
The defendant contends that the use of the singular to
refer to the underlying offense demonstrates that the
legislature contemplated a single, underlying offense,
and provided multiple ways for a defendant to become
eligible for the enhanced sentencing range in § 53a-
70c (b).
We observe that the use of the phrase ‘‘such offense’’
to refer back to the predicate statutes, which are all
listed in the disjunctive, is simply a matter of correct
grammar. For each count brought pursuant to § 53a-
70c, there obviously must be a single underlying offense.
Nothing about the phrase ‘‘such offense,’’ however, pre-
vents the state from filing multiple counts alleging viola-
tions of § 53a-70c.
As for the defendant’s argument relying on the loca-
tion of the provisions within the same statute, this court
has held that ‘‘the mere position of statutory language
in the hierarchy of sections and subsections in the penal
code does not control whether such language creates
a separate offense for the purpose of double jeopardy
analysis.’’ State v. Woodson, supra, 227 Conn. 11. In
Woodson, this court analyzed a statute with a strikingly
similar structure and concluded that the fact that the
statute imposed higher sanctions if the state proved
one or more of the multiple factors that were listed
in the disjunctive in the statute’s subdivisions did not
clearly evidence a legislative intent to preclude multiple
punishments in connection with a single transaction.
Id. Just as in the present case, the defendant in Woodson
argued that his multiple convictions under different
subdivisions of a statute offended the double jeopardy
clause because the four subdivisions of the statute at
issue, General Statutes § 53a-111 (a), identified ‘‘alterna-
tive methods for committing the single crime of arson
in the first degree.’’ Id., 6. Section 53a-111 (a) provides:
‘‘A person is guilty of arson in the first degree when,
with intent to destroy or damage a building, as defined
in section 53a-100, he starts a fire or causes an explo-
sion, and (1) the building is inhabited or occupied or
the person has reason to believe the building may be
inhabited or occupied; or (2) any other person is injured,
either directly or indirectly; or (3) such fire or explosion
was caused for the purpose of collecting insurance pro-
ceeds for the resultant loss; or (4) at the scene of such
fire or explosion a peace officer or firefighter is sub-
jected to a substantial risk of bodily injury.’’ (Empha-
sis added.)
This court rejected the defendant’s claim, holding
that the mere fact that the legislature included different
provisions within the same statute, as subdivisions,
rather than setting them out in separate statutes, with-
out more, was insufficient to rebut the presumption
established by the state’s satisfaction of the Blockburger
test, that multiple punishments under those provisions
for the same transaction do not run afoul of the double
jeopardy clause. State v. Woodson, supra, 227 Conn.
11–12.
The court observed further that subdivisions (3) and
(4) of § 53a-111 (a), the two subdivisions that were
at issue in the case, were ‘‘directed at and punish[ed]
distinct societal harms that do not necessarily coexist
in every arson in the first degree.’’ Id., 12. The court
explained: ‘‘The obvious purpose of subdivision (3) is
to prevent and punish fraud against the fire insurance
industry, fraud for which the public pays in the long
run. In contrast, the purpose of subdivision (4) is to
protect the life and limb of those public servants
charged with the dangerous duty of fighting fires.’’ Id.
In the present case, although the two subdivisions at
issue are directed at and punish closely linked societal
harms, the overlap is not determinative because the
harms targeted in the two subdivisions—abduction and
restraint of child victims, and the targeting of children
by strangers who are sexual predators—do not neces-
sarily coexist in every aggravated sexual assault of a
minor. General Statutes § 53a-70c (a) (1) and (6).
Also instructive is this court’s decision in State v.
Tweedy, 219 Conn. 489, 496, 594 A.2d 906 (1991), which
held that the defendant’s multiple convictions for kid-
napping in the first degree in violation of different subdi-
visions of General Statutes § 53a-92 (a) (2) did not
violate the double jeopardy clause. Although the deci-
sion in Tweedy did not discuss whether the language
and legislative history of § 53a-92 (a) (2) rebutted the
presumption established by satisfaction of the
Blockburger test, the holding in that case does provide
support for the conclusion that absent statutory lan-
guage to the contrary, inclusion of different offenses
within subdivisions of the same statute does not estab-
lish legislative intent merely to delineate alternative
methods of committing a single offense.
We next turn to the legislative history of § 53a-70c.
The defendant contends that because one of the primary
purposes of No. 07-143 of the 2007 Public Acts (P.A.
07-143) was to impose harsh mandatory minimum sen-
tences for sexual offenders who target victims under
the age of thirteen, and because there is no express
language in the legislative history stating that the legisla-
ture contemplated that a defendant could be sentenced
to 100 years or more for a single transaction, the legisla-
tive history rebuts the presumption that § 53a-70c
allows multiple punishments. We first observe that
there is nothing inconsistent with the legislative pur-
pose of imposing harsh mandatory minimum sentences
on sexual offenders who target children, and the conclu-
sion that § 53a-70c allows for the imposition of multiple
punishments for the same transaction. To the contrary,
the legislative purpose of P.A. 07-143, to provide severe
punishments for those sexual offenders who target chil-
dren, supports the conclusion that the legislature
intended to allow such multiple punishments.
Moreover, the absence of express statements
acknowledging the intent to allow such multiple punish-
ments falls far short of the clear evidence required to
rebut the Blockburger presumption. The defendant
points to Senator John A. Kissel’s remark during the
Senate floor debate that if the state’s attorney obtained
a conviction against a defendant for aggravated sexual
assault of a minor, ‘‘that individual would face a manda-
tory minimum prison sentence of twenty-five years for
a first offense and fifty years for a second offense.’’ 50
S. Proc., Pt. 11, 2007 Sess., p. 3520. The defendant
appears to suggest that Senator Kissel’s failure to add
that if a defendant were convicted of multiple counts
of aggravated sexual assault of a minor in violation of
§ 53a-70c, such defendant would face multiple senten-
ces under the statute, constitutes clear evidence that
the legislature did not intend to allow multiple convic-
tions and sentences under the statute. That inference
is simply not justified on the existing record.
Accordingly, because subdivisions (1) and (6) of
§ 53a-70c (a) each require proof of a fact that the other
does not, and because nothing in either the statutory
text or legislative history of § 53a-70c reveals a contrary
legislative intent, we conclude that multiple convictions
under § 53a-70c for the same transaction, as in the pre-
sent case, do not violate the double jeopardy clause.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-70c provides: ‘‘(a) A person is guilty of aggravated
sexual assault of a minor when such person commits a violation of subdivi-
sion (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-
71, 53a-86, 53a-87 or 53a-196a and the victim of such offense is under thirteen
years of age, and (1) such person kidnapped or illegally restrained the victim,
(2) such person stalked the victim, (3) such person used violence to commit
such offense against the victim, (4) such person caused serious physical
injury to or disfigurement of the victim, (5) there was more than one victim
of such offense under thirteen years of age, (6) such person was not known
to the victim, or (7) such person has previously been convicted of a violent
sexual assault.
‘‘(b) Aggravated sexual assault of a minor is a class A felony and any
person found guilty under this section shall, for a first offense, be sentenced
to a term of imprisonment of twenty-five years which may not be suspended
or reduced by the court and, for any subsequent offense, be sentenced to
a term of imprisonment of fifty years which may not be suspended or
reduced by the court.’’
2
As to count four, attempt to commit sexual assault in the first degree
in violation of §§ 53a-49 and 53a-70 (a) (2), the defendant was sentenced
to twenty years, five years of which are mandatory, consecutive to count
two. Finally, as to count seven, for aggravated sexual assault in the first
degree in violation of § 53a-70c (a) (1), the defendant was sentenced to fifty
years, twenty-five of which are mandatory, consecutive to counts two and
four. On January 28, 2014, the trial court vacated the defendant’s convictions
of risk of injury to a child and unlawful restraint pursuant to this court’s
decision in State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013) (when
defendant convicted of greater and lesser included offenses, trial court must
vacate conviction for lesser included offense).
3
Because the defendant bears the burden to demonstrate that there is
clear evidence of a contrary legislative intent, if this court were to conclude
that § 53a-70c is ambiguous, the defendant could not prevail. See State v.
Alvaro F., supra, 291 Conn. 12–13. Therefore, the defendant’s reliance on
the rule of lenity to argue that in such an event the court should construe
the statute in his favor is unpersuasive.