Hinds v. Commissioner of Correction ( 2016 )

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HINDS v. COMMISSIONER OF CORRECTION—SECOND DISSENT
EVELEIGH, J., with whom ZARELLA and ROB-
INSON, Js., join, dissenting. I respectfully dissent. I
respectfully disagree with the majority that the habeas
court properly granted the petitioner, Walter Hinds, a
new trial on the charge of kidnapping in the first degree.
Specifically, I would conclude that the petitioner has
not demonstrated actual prejudice because he has not
shown that there is a substantial likelihood that the
jury would not have found that the petitioner’s restraint
of the victim in the parking lot and subsequent removal
to the woods constituted a crime of independent legal
significance. I also agree with and join Justice Zarella’s
dissent. In particular, I agree with Justice Zarella that
the respondent, the Commissioner of Correction, ‘‘did
not raise a procedural default defense’’ in Luurtsema
v. Commissioner of Correction, 299 Conn. 740, 774, 12
A.3d 817 (2008), and that, therefore, that case ‘‘provides
no guidance as to the applicability of the procedural
default rule when a petitioner who has not requested
a Salamon1 instruction at trial or raised the issue on
direct appeal makes a Salamon claim in a subsequent
habeas proceeding.’’ (Footnote added.) I also agree with
Justice Zarella that, because the petitioner himself does
not ‘‘suggest that the procedural default rule should be
replaced by an entirely different standard,’’ it is
‘‘improper for the majority to consider [this] issue in
the present case without the input of the parties who
appealed to this court.’’
In State v. Salamon, 287 Conn. 509, 542, 949 A.2d
1092 (2008), this court concluded that ‘‘to commit a
kidnapping in conjunction with another crime, a defen-
dant must intend to prevent the victim’s liberation for
a longer period of time or to a greater degree than
that which is necessary to commit the other crime.’’ In
Salamon, this court cautioned that its holding did ‘‘not
represent a complete refutation of the principles estab-
lished [in its] prior kidnapping jurisprudence.’’ Id., 546.
This court further observed that, in order to prove a
kidnapping, ‘‘the state is not required to establish any
minimum period of confinement or degree of move-
ment.’’ Id. The court noted, however, that when the
‘‘confinement or movement is merely incidental to the
commission of another crime . . . the confinement or
movement must have exceeded that which was neces-
sary to commit the other crime.’’ Id.
This court explained as follows: ‘‘[I]n other words
. . . the test . . . to determine whether [the] confine-
ments or movements involved [were] such that kidnap-
ping may also be charged and prosecuted when an
offense separate from kidnapping has occurred asks
whether the confinement, movement, or detention was
merely incidental to the accompanying felony or
whether it was significant enough, in and of itself, to
warrant independent prosecution.’’ (Internal quotation
marks omitted.) Id., 547. ‘‘[A] defendant may be con-
victed of both kidnapping and another substantive
crime if, at any time prior to, during or after the commis-
sion of that other crime, the victim is moved or confined
in a way that has independent criminal significance,
that is, the victim was restrained to an extent exceeding
that which was necessary to accomplish or complete
the other crime.’’ Id.
In addition, the Salamon court listed a number of
factors to be considered by the fact finder, in its deter-
mination of whether a separate crime existed, including
the nature and duration of the victim’s movement or
confinement by a defendant, whether the movement
or confinement occurred during the commission of a
separate offense, whether the restraint was inherent in
the nature of the separate offense, whether the restraint
prevented the victim from summoning assistance,
whether the restraint reduced the risk of detection, and
whether the restraint created a significant danger or
increased the victim’s risk of harm independent of that
posed by the separate offense. Id., 548.
On the basis of my review of these factors annun-
ciated by this court in Salamon, I cannot conclude that,
had the jury in the present case received the instruction
in accordance with Salamon, there is a substantial like-
lihood that it would not have convicted the petitioner
for kidnapping in the first degree. Accordingly, I would
conclude that the petitioner has failed to meet his bur-
den of establishing actual prejudice in this case. There-
fore, I respectfully dissent.
I agree with the facts and procedural history set forth
by the majority. I disagree with the majority that the
petitioner’s Salamon claim is not subject to the doctrine
of procedural default. Instead, I agree with the Appellate
Court that the procedural default rule should apply in
the present case. ‘‘In essence, the procedural default
doctrine holds that a claimant may not raise, in a collat-
eral proceeding, claims that he could have made at trial
or on direct appeal in the original proceeding and that
if the state, in response, alleges that a claimant should
be procedurally defaulted from now making the claim,
the claimant bears the burden of demonstrating good
cause for having failed to raise the claim directly, and
he must show that he suffered actual prejudice as a
result of this excusable failure.’’ Hinds v. Commis-
sioner of Correction, 151 Conn. App. 837, 852, 97 A.3d
986 (2014).
‘‘In Connecticut, the procedural default rule set forth
in [Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53
L. Ed. 2d 594 (1977)], was adopted and applied to state
habeas corpus petitions in Johnson v. Commissioner
of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
Since Johnson, a habeas petitioner is barred from
asserting a claim in a habeas petition that could have
been raised in the underlying criminal proceeding
unless he is able to demonstrate good cause for having
failed to raise such a claim and actual prejudice
resulting from the failure to raise the claim in the crimi-
nal proceedings.’’ Hinds v. Commissioner of Correc-
tion, supra, 151 Conn. App. 852–53.
The majority’s conclusion that the petitioner’s claim
in the present case is not subject to the doctrine of
procedural default effectively overrules this court’s
jurisprudence in Johnson and its progeny. I disagree
with such an approach, particularly because no party
has asked us to do so in the present case.
Accordingly, I would conclude that the petitioner in
the present case ‘‘must shoulder the burden of showing,
not merely that the errors at his trial created a possibil-
ity of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’’ (Emphasis omit-
ted.) United States v. Frady, 456 U.S. 152, 170, 102 S.
Ct. 1584, 71 L. Ed. 2d 816 (1982). I further agree with the
majority that ‘‘the petitioner would have to demonstrate
that, with the proper instruction, there was a substantial
likelihood that the jury would not have found the peti-
tioner guilty of the crime of which he was convicted.’’
(Internal quotation marks omitted.) Therefore, the out-
come of this collateral proceeding depends on whether,
if the jury had been given the charge now required by
Salamon, there is a substantial likelihood that it would
have convicted the petitioner of kidnapping in the
first degree.
Turning to this question, we look to Salamon for
guidance because, in Salamon, this court interpreted
the intent element of the offense and found that ‘‘the
proper inquiry for a jury evaluating a kidnapping charge
is not whether the confinement or movement of the
victim was minimal or incidental to another offense
against the victim but, rather, whether it was accom-
plished with the requisite intent, that is, to prevent the
victim’s liberation.’’ State v. Salamon, supra, 287 Conn.
532. The evidence need not establish that the restraint
was disconnected from the sexual assault. Instead, the
evidence must show that the perpetrator intended to
restrain the victim beyond what was necessary to com-
mit the sexual assault. Id., 542.
In the present case, the state clearly presented suffi-
cient evidence from which a reasonable jury could find
that the petitioner intended ‘‘to prevent the victim’s
liberation for a longer period of time or to a greater
degree than that which is necessary to commit the other
crime.’’ Id.; see also State v. Ward, 306 Conn. 718, 737–
38, 51 A.3d 970 (2012) (sufficient evidence existed to
establish requisite intent where defendant moved ‘‘the
victim away from the kitchen door to the more secluded
bedroom’’). In this collateral proceeding, the only rele-
vant evidence presented in the trial transcript shows
that the petitioner’s restraint of the sixteen year old
victim was not ‘‘merely incidental to the accompanying
felony [but was, rather] significant enough, in and of
itself, to warrant independent prosecution.’’ (Internal
quotation marks omitted.) State v. Salamon, supra, 287
Conn. 547.
At the conclusion of the criminal trial, the jury cred-
ited the state’s evidence and found the petitioner guilty
of kidnapping beyond a reasonable doubt. That evi-
dence showed that the petitioner identified the victim
and then pursued her. When she noticed him—and real-
ized the danger of the situation—the young woman
panicked and began running. Unfortunately, the peti-
tioner caught her. He then covered her mouth to stop
her from screaming and summoning help. Indeed, he
threatened to kill her if she renewed her screaming.
Under these circumstances, it is more than reasonable
to infer that the petitioner, ‘‘by engaging in this conduct,
intended to frighten and subdue the victim to prevent
her from struggling, trying to escape or summoning
assistance.’’ State v. Ward, supra, 306 Conn. 736. Next,
while still in the parking lot, the petitioner knocked the
victim to the pavement.2 He could have committed the
intended sexual assault at this moment. Instead, he
chose to drag her across the parking lot. I disagree
with the majority’s analysis that this was a ‘‘continuous,
uninterrupted course of conduct . . . .’’ Once the peti-
tioner knocked the victim to the ground and restrained
her, he could have accomplished the sexual assault,
but instead he dragged the victim into the woods and
sexually assaulted her.
The majority states that ‘‘the essential fact is the
movement of [the victim].’’ I agree insofar as an analysis
of the sexual assault is necessary. In my view, the kid-
napping had already occurred when the victim was
restrained and knocked down in the parking lot. The
majority further states that the victim’s ‘‘asportation
from the spot where she was grabbed to the site of the
sexual assault, however, appears to have been a matter
of yards and accomplished in a matter of seconds.’’ In
my view, however, this statement does not pay suffi-
cient deference to one of the key elements of Salamon
which is that ‘‘the state is not required to establish any
minimum period of confinement or degree of move-
ment.’’ State v. Salamon, supra, 287 Conn. 546. There-
fore, the exact distance or degree of confinement is not
essential to my analysis. Furthermore, the distance is
not even among the factors this court identified as
appropriate considerations in Salamon.3
In the present case, only after the petitioner had
dragged the victim by her legs into the woods did he
commence his sexual assault. It was at that point that
the restraint ‘‘merely incidental to and necessary for’’
the commission of the sexual assault began. Id., 542.
That restraint commenced when he ‘‘sat on her chest
with his feet on the outside of her arms and instructed
[the victim] to open her mouth.’’ State v. Hinds, 86
Conn. App. 557, 559, 861 A.2d 1219 (2004), cert. denied,
273 Conn. 915, 871 A.2d 372 (2005). The petitioner could
have sexually assaulted the victim in the parking lot
when he first saw her and ultimately subdued her. When
she became suspicious, she ran. The petitioner chased,
restrained, and threatened her. He delayed the sexual
assault. He then threw her to the ground. After she lay
helpless on the pavement, he dragged her across the
parking lot and into a secluded location. It was only
after he had transported her to this place, hidden in a
dark area behind a large overgrown bush, that he
imposed the restraint incidental to and necessary to
accomplish the assault.4 In moving the victim to this
location, the petitioner increased the odds of the follow-
ing: (1) that the victim would suffer injuries from being
dragged across the hard surface of the pavement; (2)
that any cries for help would not be heard by others;
(3) that the victim would be further terrorized by the
isolation; (4) that she would not be visible to any one
passing by; and (5) that the petitioner could avoid detec-
tion. In other words, his movement of the victim ‘‘not
only made it less likely that she would escape, [it] also
made it less likely that the crime would be detected.’’
State v. Ward, supra, 306 Conn. 737. Any other interpre-
tation of the evidence, which has already been credited
by the jury that found him guilty beyond a reasonable
doubt, would result in granting the petitioner immunity
for chasing the victim, halting her screams for help,
threatening her life, knocking her to the ground, drag-
ging her across a parking lot and inflicting injuries.
I further disagree with the majority’s contention that
‘‘[t]here is no evidence that the risk of harm to [the
victim] was made appreciably greater by the asportation
in and of itself.’’ Instead, I would conclude that a reason-
able jury could infer that the very act of asportation of
the victim constituted a risk of physical harm. In my
view, no reasonable jury would find that the petitioner’s
actions merely were incidental or necessary to the com-
mission of the sexual assault. On the basis of the evi-
dence presented to the jury and the habeas court, the
petitioner has failed to demonstrate that he suffered
an ‘‘actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’’
(Emphasis omitted.) United States v. Frady, supra, 456
U.S. 170.
Moreover, a consideration of the factors enumerated
by this court in Salamon, which are important to
determining whether the kidnapping constitutes a crime
of independent legal significance, further supports my
position. The amount of time that elapsed during the
confinement and the length of asportation are not essen-
tial to the state’s case. First, the nature and duration
of the victim’s confinement was distinct from the sexual
assault. The confinement occurred in the parking lot,
while the sexual assault took place in the woods. Sec-
ond, the movement or confinement did not occur during
the commission of the sexual assault, but prior thereto.
The victim was pushed to the ground and restrained in
the parking lot. Subsequently, she was dragged by her
legs across the parking lot to the woods. Third, the
restraint in the parking lot was not inherent to the
sexual assault in the woods. A separate restraint
occurred in the woods. Fourth, the restraint certainly
prevented the victim from summoning assistance. Fifth,
the restraint reduced the petitioner’s risk of detection
because he dragged the victim from the illuminated
parking lot to the darkness of the woods. I do not agree
with the majority that ‘‘[a]lthough that movement took
[the victim] from the lit parking lot to the adjacent dark
ground by a bush, an act that undoubtedly reduced the
risk of detection in one regard, it also brought [the
victim] in very close proximity to an occupied residence
in the lot adjacent to the parking lot.’’ The essential
point is that he had already restrained the victim in the
parking lot. I would conclude that a reasonable jury
could have found that the petitioner removed the victim
from the lit parking lot to the darkness of the woods to
avoid detection. Sixth, the restraint created a significant
danger and increased the victim’s risk of harm because
the petitioner threatened to kill the victim and dragged
her by the legs across the pavement of the parking lot.
Indeed, the act of asportation itself certainly increased
the risk of harm to the victim. A review of these factors
demonstrates that the evidence in the present case
established that the confinement and movement of the
victim was not incidental to the assault, but was accom-
plished so as to prevent the victim’s liberation.5
On the basis of the foregoing, I would conclude that
all of the Salamon factors have been satisfied and that
the petitioner has failed to prove that there is a substan-
tial likelihood that the jury would not have found the
petitioner guilty of kidnapping if it had been instructed
pursuant to Salamon. Indeed, it is difficult to conceive
that anyone could conclude that a separate offense,
independent of the sexual assault, had not occurred
when the petitioner restrained the victim in the parking
lot. Certainly, if the sexual assault had never occurred,
the petitioner’s actions constituted the independent
crime of kidnapping.
It is helpful to compare the present case to a few
cases wherein this court determined that the defendant
was entitled to a new trial, under Salamon, because a
reasonable jury could conclude that the conduct alleged
to be a kidnapping could be incidental to either a sexual
assault or an assault. First, in Salamon, wherein the
defendant had grabbed the victim on the back of the
neck, causing her to fall onto the steps at a train station,
held her down by her hair, punched the victim in the
mouth and attempted to thrust his fingers down her
throat while she was screaming, this court reversed the
kidnapping conviction and remanded for a new trial.6
State v. Salamon, supra, 287 Conn. 513–15. Second, in
State v. Sanseverino, 291 Conn. 574, 577–81, 969 A.2d
710 (2009), the court held that, upon reconsideration,
the state could retry the defendant on the charge of
kidnapping when the defendant had followed the victim
to the back room of a bakery, grabbed her by her shoul-
ders and pushed her against a wall and a metal shelving
unit and then sexually assaulted her. Finally, in State
v. DeJesus, 288 Conn. 418, 422–23, 953 A.2d 45 (2008),
the defendant had sexually assaulted the victim on two
separate occasions in two rooms of a supermarket. This
court ordered a new trial so that the trial court could
instruct the jury pursuant to Salamon. Id., 428. These
cases are distinguishable from the present case
because, unlike Salamon, Sanseverino and DeJesus, in
the present case, there is a clearly defined separate
incident unrelated to the ultimate sexual assault, and
the petitioner removed the victim from the point of
initial restraint in order to avoid detection. In both
DeJesus and Sanseverino, the sexual assaults took
place in a confined area and there was no evidence of
any asportation. In Salamon, there was no movement
from the point of the initial attack. In all of those previ-
ous cases, the issue was solely whether the amount of
restraint exercised was incidental to the assaults or
whether the length of the restraint went beyond the
time necessary to commit the assaults. In my view,
the present case is not a close question, but rather
represents a fact pattern in which no reasonable jury
could conclude that the initial restraint was incidental
to the sexual assault.
A review of cases from other jurisdictions in which
courts have found that there is sufficient evidence to
support a separate conviction for kidnapping bolsters
my conclusion that the petitioner has failed to demon-
strate that there is a reasonable probability that, but
for the lack of a Salamon instruction, the result of the
trial would have been different. See, e.g., Yearty v. State,
805 P.2d 987, 993 (Alaska App. 1991) (defendant’s
restraint of victim ‘‘went significantly beyond that
which was merely incidental to the sexual assault’’
where defendant pulled victim off of bike path,
‘‘dragged him to a secluded area several hundred feet
away, and there held him captive for almost an hour’’);
State v. Gordon, 161 Ariz. 308, 316, 778 P.2d 1204 (1989)
(affirming consecutive sentences on kidnapping and
sexual assault charges because ‘‘the manner in which
[the defendant] committed the kidnapping added to the
victim’s suffering and increased her harm or risk of
harm beyond that inherent in the ultimate crime’’); Lee
v. State, 326 Ark. 529, 531, 932 S.W.2d 756 (1996)
(affirming convictions for rape and kidnapping convic-
tions where defendant began to follow victim, then
grabbed victim around her neck while she was on public
sidewalk and ‘‘dragged her approximately one city
block to the back of the school building where there
was no light’’ where he raped her); People v. Robertson,
208 Cal. App. 4th 965, 986–97, 146 Cal. Rptr. 3d 66 (2012)
(affirming defendant’s kidnapping conviction where
‘‘record contain[ed] substantial evidence from which a
reasonable trier of fact could conclude beyond a reason-
able doubt that the movement was more than merely
incidental and increased the risk of harm above and
beyond that inherent in the crime of rape’’); People v.
Johnson, 26 N.E.3d 586, 589–90 (Ill. App.) (affirming
conviction for kidnapping where the defendant forcibly
moved victim from sidewalk to vacant lot, then to area
between two garages off of alley), appeal denied, 26
N.E.3d 586 (Ill. 2015). Although in these cases, the
courts were considering whether there was sufficient
evidence to support a separate kidnapping conviction,
they demonstrate that the petitioner in the present case
has not met his burden of proving actual prejudice.
In the present case, the petitioner has failed to dem-
onstrate that he suffered actual prejudice as a result of
the trial court’s failure to instruct the jurors, pursuant
to State v. Salamon, supra, 287 Conn. 546, that a
restraint that is ‘‘merely incidental to the commission
of another crime’’ could not serve as the basis of a
kidnapping conviction. The petitioner cannot satisfy his
burden of demonstrating that it is reasonably likely that
the jury would have acquitted him of the kidnapping
charge if given the Salamon instruction. Indeed, the
petitioner has failed to prove any of the Salamon factors
in his favor. Instead, an analysis of all of the factors
demonstrates that the petitioner committed a crime of
independent legal significance when, prior to sexually
assaulting this sixteen year old, he also increased the
risk of harm to her and then dragged her into a secluded
location to avoid detection. In my view, the petitioner
has not met his burden of demonstrating actual preju-
dice and, therefore, I would conclude that the judgment
of the Appellate Court should be reversed and that the
case should be remanded to that court with direction
to reverse the judgment of the habeas court and to
remand the case to the habeas court with direction to
deny the petition for a writ of habeas corpus.
Therefore, I respectfully dissent.
1
State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008).
2
The majority asserts that ‘‘[i]t is difficult to imagine how a sexual assault
can be perpetrated without grabbing the victim, and the feasibility of accomp-
lishing a sexual assault while the victim and the perpetrator are standing
in the middle of a parking lot seems rather remote.’’ See footnote 13 of the
majority opinion. The majority seems to be asserting that dragging the victim
behind the large overgrown bush in the adjacent lot was incidental to the
sexual assault because the assault could not be performed while they were
both standing. The majority’s position, however, ignores the evidence in the
present case. The evidence in the present case established that the petitioner
knocked the victim to the ground while they were both still in the parking
lot. Therefore, the asportation of the victim to the dark area behind a large
overgrown bush in an adjacent yard was not necessary or incidental to
the assault.
3
The majority asserts that the victim’s ‘‘asportation from the spot where
she was grabbed to the site of the sexual assault, however, appears to have
been a matter of yards and accomplished in a matter of seconds.’’ The
majority does not provide and I cannot find, a citation for either of these
measurements. Indeed, the only evidence in the file establishes that the
area where the victim was first apprehended and knocked down was a lit
parking lot with multiple cars and that she was dragged up onto grass and
around to a dark area in the rear of a large overgrown shrub. Although the
majority relies on the fact that the shrub was located in the yard of an
occupied home, there is no evidence that the petitioner had any idea that
the home was occupied. There is no evidence that there were any lights on
inside the home. The only evidence regarding the home is that the police
officer interviewed the occupant who said he was home, but that he usually
did not hear many outside noises because of noise caused by window air
conditioners installed in his home and the motor from the factory next door.
4
The majority asserts that ‘‘the dissenting justices ignore the ‘incidental
to’ language in Salamon’’ and ‘‘give no meaningful effect to the requirement
that the additional restraint or asportation have ‘independent criminal signifi-
cance . . . .’ ’’ I disagree. In fact, it is the majority who does not appropri-
ately examine the restraint in the present case in accordance with this
court’s instructions in Salamon. In Salamon, this court explained as follows:
‘‘Upon examination of the common law of kidnapping, the history and
circumstances surrounding the promulgation of our current kidnapping stat-
utes and the policy objectives animating those statutes, we now conclude the
following: Our legislature, in replacing a single, broadly worded kidnapping
provision with a gradated scheme that distinguishes kidnappings from
unlawful restraints by the presence of an intent to prevent a victim’s libera-
tion, intended to exclude from the scope of the more serious crime of
kidnapping and its accompanying severe penalties those confinements or
movements of a victim that are merely incidental to and necessary for the
commission of another crime against that victim. Stated otherwise, to com-
mit a kidnapping in conjunction with another crime, a defendant must intend
to prevent the victim’s liberation for a longer period of time or to a greater
degree than that which is necessary to commit the other crime.’’ State v.
Salamon, supra, 287 Conn. 542. Accordingly, my analysis of whether the
restraint used by the petitioner against the victim in the present case was
necessary for the commission of the sexual assault is exactly what Sala-
mon instructs.
Furthermore, my analysis of the facts in the present case is consistent
with this court’s prior case law. See, e.g., State v. Ward, supra, 306 Conn.
738. In Ward, this court concluded that ‘‘the jury, which had been instructed
on the applicable legal principles in accordance with Salamon, reasonably
could have found that the defendant’s confinement or movement of the
victim was not merely incidental to the sexual assault.’’ Id., 736. As grounds
for our conclusion, we relied on the following facts: ‘‘The victim, who
weighed a mere 100 pounds, testified that she could not escape because
the defendant was twice her size and held her very tightly. By moving the
victim away from the kitchen door, the defendant made the possibility of
escape even more remote. From this testimony, it was reasonable for the
jury to conclude that the defendant could have sexually assaulted the victim
without threatening to kill her and without continuously holding the knife
sharpening tool to her neck and, therefore, that the force used by the
defendant exceeded the amount necessary to commit the sexual assault. It
was also reasonable to infer that the defendant, by engaging in this conduct,
intended to frighten and subdue the victim to prevent her from struggling,
trying to escape or summoning assistance. In light of the evidence, the jury
also reasonably could have concluded that the defendant increased the risk
of harm to the victim by holding the pointed metal knife sharpening tool
to her neck and by moving her away from the kitchen door, which not only
made it less likely that she would escape, but also made it less likely that
the crime would be detected. . . . Moreover, given the disparity in size and
strength between the defendant and the victim, it was reasonable for the
jury to conclude that the defendant did not need to move the victim from
the kitchen in order to sexually assault her. If he intended to move her to
a location that was more comfortable for him, he could have quickly moved
her to the bedroom and onto the bed. Instead, he moved her from the
kitchen to the bedroom, and ultimately onto the floor. Finally, although the
incident lasted ten to fifteen minutes, the sexual assault itself lasted only
two minutes.’’ (Citation omitted; footnote omitted.) Id., 736–37. Ultimately,
we concluded that ‘‘although the defendant did not confine the victim for
a lengthy period of time or move her a significant distance, the facts and
circumstances of the present case, considered as a whole, support the jury’s
determination that the restraint of the victim was not merely incidental to
or an inherent part of the sexual assault. Our decision is not based on any
single fact, but on the cumulative effect of the evidence adduced at trial.’’
(Footnote omitted.) Id., 738.
Similarly, in the present case, the petitioner did not need to threaten to
kill her or drag her to the secluded dark area behind the overgrown bush
in order to assault her. Accordingly, I would conclude that the facts establish
that the petitioner restrained the victim beyond that which was necessary for
and incidental to the sexual assault and that such restraint has independent
criminal significance.
5
The majority asserts that ‘‘the dissenting justices do not recognize that
the degree and nature of the restraint or asportation bears on the ultimate
question—the perpetrator’s intent in taking these actions.’’ (Emphasis in
original.) I disagree. Salamon instructs that a number of factors are appro-
priate in making the ultimate determination of whether the confinement or
movement of the victim was accomplished with the intent to prevent the
victim’s liberation. See State v. Salamon, supra, 287 Conn. 542. Indeed, the
majority ignores these factors.
6
In reaching this conclusion, however, this court explicitly stated that ‘‘a
juror reasonably could find that the defendant’s restraint of the victim was
not merely incidental to his assault of the victim’’ noting, in particular, that
‘‘[t]he victim testified that the defendant, after accosting her, forcibly held
her down for five minutes or more.’’ (Emphasis added.) State v. Salamon,
supra, 287 Conn. 549–50.