State v. Samuel M. ( 2015 )

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STATE OF CONNECTICUT v. SAMUEL M.*
(AC 36789)
DiPentima, C. J., and Sheldon and Sullivan, Js.
Argued December 1, 2014—officially released August 18, 2015
(Appeal from Superior Court, judicial district of
Windham, geographical area number eleven, Seeley, J.)
Bryan P. Fiengo, with whom, on the brief, was
Michael A. Blanchard, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Patricia M. Froehlich, state’s
attorney, and Andrew J. Slitt, assistant state’s attorney,
for the appellee (state).
Opinion
SHELDON, J. The defendant, Samuel M., appeals
from the judgment of conviction rendered against him
on two counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2) and one
count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2) in connection with a series of
incidents involving his minor cousin, J. The incidents
were alleged to have occurred ‘‘on or about June, 2009,’’
when the defendant was fourteen years old and J was
ten years old. Based upon the classifications of the
charged offenses and the state’s allegation that the
defendant had committed them after reaching the age
of fourteen, the defendant’s case was transferred from
the docket for juvenile matters (juvenile docket) to the
regular criminal docket pursuant to General Statutes
§ 46b-127 (a) (1).1 As a result of the transfer, the defen-
dant was tried, convicted and sentenced as an adult.
On appeal, the defendant claims that (1) the evidence
was insufficient to support his conviction of any of the
charged offenses due to severe inconsistencies in J’s
testimony at trial; and (2) the trial court erred in denying
his motion to dismiss the amended information, under
which he was prosecuted as an adult, and to transfer
his case to the juvenile docket, based upon the state’s
failure to prove that he committed any of the offenses
of which he was convicted after attaining the age of
fourteen.2 We disagree with the defendant that the evi-
dence was insufficient to support his conviction due to
alleged inconsistencies in J’s trial testimony. We agree
with the defendant, however, that the state failed to
prove that he was at least fourteen years old at the
time of the offenses, and thus conclude that the court
improperly denied his motion to dismiss the amended
information and to transfer the matter to the juvenile
docket.
The following facts and procedural history are rele-
vant to this appeal. The defendant and J are first cousins
who are approximately four years apart in age.3 The
defendant, who is the older of the two boys, was born
on September 17, 1994. J was born on December 31,
1998.4 At the time of the alleged assaults, J’s and the
defendant’s families resided across the street from one
another in Windham County. The grandparents of J and
the defendant, R and G,5 lived on the same street and
within walking distance of the two homes. During the
school year, J and his older brother spent Tuesday and
Thursday afternoons at their grandparents’ house while
their parents were at work. On the days that the defen-
dant did not have basketball or baseball practice after
school, he spent the afternoons at his grandparents’
house as well, along with his three siblings. Because
of their close proximity, the families frequently met for
dinner on Sundays and occasionally vacationed
together. The children also played together after school
and during the summer months.
In the second to last week of June, 2009, J’s mother,
S, woke up early one morning, at about 5 a.m., and
went downstairs to gather her things to prepare to go
to work. At that time, she observed that her cell phone,
which had been placed on the charger in the living
room, appeared to be lit up as if it had recently been
in use. Given the early morning hour, this struck her
as odd and prompted her to look through the contents
of the cell phone. Upon doing so, she discovered a text
message between J and one of his friends. S continued
to search the contents of her cell phone and discovered
a photograph of J’s penis. S immediately woke J, who
was still sleeping, and demanded that he explain the
photograph. J admitted that he had taken the photo-
graph of his penis, claiming that he had done so at
the defendant’s request.6 Upon further questioning, J
disclosed that there had been sexual activity between
him and the defendant, but he did not say when the
activity had occurred. Following this conversation, S
terminated all contact between J and the defendant.
Several weeks later, in September, 2009, S convened
a family meeting to make J’s grandparents, R and G,
and the defendant’s family aware of what had taken
place. J’s aunt also attended the meeting, and at that
time she spoke privately with J concerning his allega-
tions against the defendant. J confirmed to his aunt that
there had been activity of a ‘‘sexual nature’’ between
him and the defendant.
S did not report the matter to the police. Instead, she
arranged for J to see a therapist. More than one year
later, in August, 2010, J’s therapist reported the alleged
sexual abuse to the Department of Children and Fami-
lies. The department then referred the matter to the
state police. Detective Patrick Dragon, of the eastern
district major crime squad, was assigned to investigate
the referral. Psychologist Mary Cheyne conducted a
video recorded forensic interview of J.7 During the inter-
view, J, who was then eleven years old, described seven
separate incidents involving sexual contact initiated by
the defendant. According to J, the sexual abuse began
‘‘around my end of my fourth grade year.’’ The incidents
were alleged to have occurred on Tuesday and Thursday
afternoons when J and the defendant were in their
grandparents’ care but out of their sight and immediate
supervision. J recalled that on five occasions, he and
the defendant performed fellatio on one another. When
asked to describe the incidents, J stated that the defen-
dant ‘‘would make me suck his penis first, and then,
like, to pay back, he would suck mine.’’ On two other
occasions J and the defendant allegedly performed anal
sex on one another. On each occasion, J claimed the
defendant had forced him to submit to the sexual acts
by threatening him with a baseball bat.8 According to
J, ‘‘[the defendant] said, if you tell anyone, I’m going
to hurt you . . . so, me, only being in fourth grade,
and him, being, like, what, twelve, no, like, thirteen,
actually, I believed him.’’
At the conclusion of the interview, Cheyne attempted
to get clarification about the timing of the assaults.9 J
stated that the first incident occurred in the autumn
of his fourth grade year and that the sexual activity
continued ‘‘for a whole year’’ until the ‘‘first day of
autumn’’ of his fifth grade year. When asked which
month he thought the last incident occurred, J stated
that he believed it was October ‘‘because in the forest
the leaves were starting to change and fall off.’’ Near
the conclusion of the interview, J stated that the activity
had occurred over a span of three months in the middle
of his fourth grade year.
On the basis of these facts and interviews with mem-
bers of J’s family, a juvenile arrest warrant for the defen-
dant was issued on December 2, 2011, charging him
with sexual assault in the first degree and risk of injury
to a child. The juvenile arrest warrant and juvenile sum-
mons and complaint alleged that the date of the offense
was ‘‘on or about June, 2009,’’ which corresponded with
S’s discovery of the photograph on her cell phone. On
January 10, 2012, the defendant’s case was transferred
from the juvenile docket to the regular criminal docket
pursuant to the mandatory transfer provision, § 46b-
127 (a).10 The state subsequently filed an amended infor-
mation charging the defendant with fourteen counts of
sexual assault in the first degree and one count of risk
of injury to a child in connection with seven separate
incidents. Seven counts alleged sexual assault by use
of force in violation of § 53a-70 (a) (1). Seven counts
alleged sexual assault of a victim under the age of thir-
teen when the defendant was more than two years older
than the victim in violation of § 53a-70 (a) (2). The
fifteenth count charged the defendant with risk of injury
to a child in violation of § 53-21 (a) (2), alleging that
the defendant had contact with the intimate parts of a
child under the age of sixteen years. The state alleged
that each of the seven incidents had occurred on or
about June, 2009. The state alleged that the defendant
had illegal contact with J’s intimate parts ‘‘on or about
divers dates from in June, 2009 . . . .’’
The defendant pleaded not guilty to the charges and
elected a jury trial. The defendant’s trial commenced
on July 11, 2013, and concluded on July 17, 2013. The
state called six witnesses in its case-in-chief and rebut-
tal case. The substantive evidence against the defendant
was limited to J’s testimony.11 J, who was fourteen years
old at the time of trial, testified that in June, 2009, he
was attending middle school. He testified as to seven
incidents of sexual assault that had taken place when
he was ‘‘nine or ten’’ years old, that occurred ‘‘maybe
a month apart,’’ on Tuesday and Thursday afternoons.
On redirect examination, J stated that he could not
recall with any certainty when the incidents occurred.
At the close of the state’s case-in-chief, the defendant
moved the court to dismiss the charges or to render a
judgment of acquittal on the ground that the state had
failed to establish a time frame for the assaults. Defense
counsel argued: ‘‘[It is] problematic . . . the lack of a
time frame . . . . Now, in our opinion that becomes
important because while the state has alleged that June
of 2009 is an operative time, there is some testimony
that it happened somewhere when he was in fourth
grade, but there [has] been no evidence put before this
court as to when [J] was in fact in fourth grade. . . .
[T]he best information that I recall is that when [J] was
talking about particular ages at about which time this
happened, it would have been either nine or ten. Now,
with his birthday being in 1998, he’s nine in 2007 and ten
in 2008, that poses a problematic issue . . . because
of the fact that up until September [17] of 2008, [the
defendant] was a minor and not subject to the transfer
statute, which kicked in when he [attained] the age of
fourteen. Since there’s not a sufficient enough clarity
as to the timing of this particular incident, Your Honor,
it is—it could be an absolute situation, this . . . matter
should not be before this court and, as such, this matter
should be dismissed.’’
The defendant also argued that acquittal was man-
dated because of the factual inconsistencies as to timing
on the basis of facts adduced through the testimony of
the state’s witnesses and the time frame alleged as a
predicate for the charges.
In response, the state argued, inter alia, that ‘‘we’re
talking about details. . . . The state’s evidence was
presented not just by the—by [J], but by [S] and by his
aunt. The state is not required to establish with preci-
sion . . . when the crime occurred. The descripting
term of on or about is there for a reason. The court’s
instructions to the jury are [going to] explain that. I
believe that the state is not required to make that precise
time known to the jury and, again, the—talking about
details that a child is attempting to remember about
something that happened four years ago.’’ The state
averred that S’s testimony concerning her discovery of
the photograph of J’s penis on her cell phone and J’s
disclosure, in the second to last week of June ‘‘put the
time frame into proper context.’’ The court denied the
motion for a judgment of acquittal, but reserved judg-
ment on it only as to counts eleven and twelve. At the
close of evidence the court rendered a judgment of
acquittal on two counts on other grounds.12 The court
did not directly address the defendant’s motion to dis-
miss, stating, ‘‘I do note . . . your arguments on the
time frame issue. I do not think that that matter is
part of a judgment of acquittal argument for [these]
purposes. It may be another argument or another
motion.’’ The defendant did not further pursue the issue
at that time.
The defendant called six witnesses in his defense.
Two of the defendant’s witnesses testified concerning
the time frame of the alleged assaults. The defendant’s
father testified as to alibi evidence concerning the
defendant’s after-school sports schedule, which
included basketball practices scheduled on Tuesday
and Thursday afternoons in the 2008–2009 school year.
The defendant and J’s grandmother, R, who watched
the boys after school on the days the assaults allegedly
took place, testified that she was diagnosed with cancer
on June 13, 2008, and underwent surgery and, thus,
could not ‘‘recall ever watching them all—not all the
time’’ beyond July, 2008.13
At the close of evidence, on July 16, 2013, the defen-
dant moved for a judgment of acquittal, arguing, inter
alia, that J’s testimony had failed to establish a time
frame for the charged offenses that conformed to the
dates alleged in the information.14 On that score, the
defendant argued that ‘‘with all [of] the divergent evi-
dence’’ as to timing, the jury had no reasonable basis
from which to infer that the incidents occurred on or
about June, 2009. The court denied the defendant’s
motion for a judgment of acquittal. At that time, the
court also considered and summarily denied the defen-
dant’s motion to transfer, predicated on the same argu-
ment, moving the court to transfer the defendant’s case
to the juvenile docket pursuant to § 46b-127 (a) (2)15 on
the ground that the court lacked jurisdiction over him.16
In the court’s final charge to the jury, the counts were
identified by the location of the incident, and each count
was alleged to have occurred on or about June, 2009.
The jury was instructed: ‘‘[T]he state does not have to
prove the exact date of the offense charged beyond a
reasonable doubt, only that the alleged acts as charged
occurred on or about divers dates in June, 2009.’’
The jury found the defendant guilty of three counts
of first degree sexual assault in violation of § 53a-70
(a) (2), based on the more than two year age difference
between the defendant and J, and one count of risk of
injury to a child in violation of § 53-21 (a) (2), based
on illegal contact with J’s intimate parts. The jury found
the defendant not guilty of three counts of sexual
assault in violation of § 53a-70 (a) (2) and all six
remaining counts of sexual assault by use of force in
violation of § 53a-70 (a) (1).
Following the jury’s verdict, the defendant filed a
‘‘motion to dismiss information and motion to transfer,’’
and a motion for a judgment of acquittal, contending
that the state’s failure to establish an operative time
frame for the offenses mandated either that the case
be dismissed for lack of jurisdiction and transferred
back to the juvenile docket or that the defendant be
acquitted of the charges. The court granted the defen-
dant’s motion for a judgment of acquittal on one count
of sexual assault in the first degree. On each of the
three counts of which the defendant was found guilty,
the court imposed the mandatory minimum five year
sentence, to run concurrently, plus five years special
parole, with lifetime sex offender registration.17 The
court denied the defendant’s motion to dismiss. This
appeal followed.
I
We first address the defendant’s claim that J’s testi-
mony cannot support the conviction. More particularly,
the defendant directs our attention to various portions
of J’s testimony, which, he maintains, are ‘‘so fantastic
that one must reach a conclusion of fabrication.’’ He
further claims that the split verdict demonstrates that
the jury compromised its verdict. This claim merits
little discussion.
‘‘The standard of appellate review of a denial of a
motion for a judgment of acquittal has been settled by
judicial decision. . . . The issue to be determined is
whether the jury [reasonably could have] concluded,
from the facts established and the reasonable infer-
ences which could be drawn from those facts, that
the cumulative effect was to establish guilt beyond a
reasonable doubt. . . . The facts and the reasonable
inferences stemming from the facts must be given a
construction most favorable to sustaining the jury’s ver-
dict. . . . It is established case law that when a defen-
dant challenges the sufficiency of the evidence, we
apply a twofold test. We first review the evidence . . .
in the light most favorable to sustaining the jury’s ver-
dict. We then determine whether, upon the facts thus
established and the inferences reasonably drawn . . .
the jury [reasonably could] have concluded that the
cumulative effect of the evidence established guilt
beyond a reasonable doubt . . . .’’ (Internal quotation
marks omitted.) State v. Turner, 133 Conn. App. 812,
842–43, 37 A.3d 183, cert. denied, 304 Conn. 929, 42
A.3d 390 (2012).
As this court has noted, ‘‘it is not the province of
appellate courts to make determinations of credibility,
as that is the right and purpose of the jury.’’ State v.
Caracoglia, 95 Conn. App. 95, 128, 895 A.2d 810, cert.
denied, 278 Conn. 922, 901 A.2d 1222 (2006). The jury
was free to credit or reject J’s testimony and, indeed,
the jury’s verdict demonstrates that it did reject a vast
portion of J’s testimony. Moreover, contrary to the
defendant’s contention, the jury’s determination that
the defendant did not commit some of the alleged
crimes does not mandate a similar conclusion as to the
remaining charges. See State v. Arroyo, 292 Conn. 558,
585, 973 A.2d 1254 (2009) (our law permits factually
and logically inconsistent verdicts), cert. denied, 559
U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). The
evidence was sufficient to sustain the defendant’s con-
victions.
II
A
The defendant next claims that the state’s failure to
prove that the crimes occurred in the time frame
alleged, after he had attained the age of fourteen, left
the trial court without jurisdiction and, thus, the infor-
mation should be dismissed and the matter transferred
to the juvenile docket for further proceedings. We agree.
To fully understand the defendant’s claim on appeal,
an examination of the relevant statutory framework is
necessary. The Superior Court for Juvenile Matters has
exclusive original jurisdiction over all proceedings con-
cerning delinquent children18 subject to certain excep-
tions that have been carved out under the juvenile
transfer statute, § 46b-127.19 ‘‘The current revision of
§ 46b-127 provides for three types of transfers of a case
that charges a juvenile with an offense: (1) mandatory
transfers from the docket for juvenile matters to the
regular criminal docket of the Superior Court (manda-
tory transfer provision); General Statutes (Supp. 2014)
§ 46b-127 (a); (2) discretionary transfers from the
docket for juvenile matters to the regular criminal
docket of the Superior Court (discretionary transfer
provision); General Statutes (Supp. 2014) § 46b-127 (b);
and (3) transfers of cases of youths age sixteen or
seventeen from the youthful offender docket, regular
criminal docket of the Superior Court or any docket
for the presentment of defendants in motor vehicle
matters, to the docket for juvenile matters (youthful
offender transfer provision). General Statutes (Supp.
2014) § 46b-127 (f).’’ (Footnote omitted.) In re Tyriq
T., 313 Conn. 99, 105–106, 96 A.3d 494 (2014).
This case concerns the mandatory transfer provision,
§ 46b-127 (a). Pursuant to § 46b-127 (a), the transfer of
a child to the regular criminal docket is mandatory if
the child is charged with having committed a class A
or class B felony after he or she has attained the age
of fourteen. The child’s age on the date of the offense,
as alleged in the state’s information, determines the
child’s eligibility to be prosecuted as an adult. See Gen-
eral Statutes § 46b-127 (a). If probable cause has been
found that the child committed the offense, the case is
transferred to the adult docket by operation of law.20
‘‘Upon the effectuation of the transfer, such child shall
stand trial and be sentenced, if convicted, as if such
child were eighteen years of age. . . . If the action is
dismissed or nolled or if such child is found not guilty
of the charge for which he was transferred . . . the
child shall resume such child’s status as a juvenile until
such child attains the age of eighteen years.’’ General
Statutes § 46b-127 (c).
Against this background, the defendant argues that
under § 46b-127 (a), mandatory transfer is authorized
only if the commission of the offense occurred after
the child attained the age of fourteen. Accordingly, the
defendant claims that his age at the time of the offense
is a jurisdictional fact that served to trigger criminal
proceedings on the adult docket and the criminal penal-
ties that follow, which, in his case, include felony con-
victions of serious sexual offenses and lifetime
registration as a sex offender. Given the significantly
enhanced consequences related to his age, he argues,
there must be proof to establish beyond a reasonable
doubt that the crimes occurred after his fourteenth
birthday. On this score, the defendant contends that
the state offered ‘‘exceedingly vague and nebulous’’ tes-
timony to support its allegation that the crimes occurred
‘‘on or about June, 2009 . . . .’’ Because our juvenile
statutes contain no provision for the transfer of children
under the age of fourteen, he argues, the court lacked
jurisdiction and, thus, erred in denying his motion to
dismiss and to transfer.
The state argues that the defendant’s jurisdictional
claim must fail because as a constitutional court of
general jurisdiction, the court had the authority to adju-
dicate the offenses at issue. The state further argues
that the uncontested evidence at trial established that
the defendant was fourteen years old at the time of the
commission of the crimes.
The state is correct that in 1978, the Court of Common
Pleas and Juvenile Court were merged with the Superior
Court. See General Statutes § 51-164s. Thus, ‘‘[t]his state
has a unified court system. . . . [A]ll criminal and civil
matters, including juvenile matters, fall within the sub-
ject matter jurisdiction of the Superior Court. Juvenile
matters are comprised of a civil session and a criminal
session; all proceedings concerning delinquent children
are heard in the criminal session for juvenile matters.
General Statutes § 46b-121 (a). For ease of reference,
we refer to the Superior Court for juvenile matters as
juvenile court and to the Superior Court for regular,
or adult, criminal matters as criminal court.’’ State v.
Ledbetter, 263 Conn. 1, 4–5 n.9, 818 A.2d 1 (2003). As
a result of our unified court system, ‘‘[r]ather than impli-
cating subject matter jurisdiction, issues relating to
transfers between the juvenile and the regular criminal
docket involve considerations that are analogous to
those of the law of venue.’’ State v. Kelley, 206 Conn.
323, 332, 537 A.2d 483 (1988); accord In re Matthew F.,
297 Conn. 673, 691, 4 A.3d 248 (2010).
Although ‘‘General Statutes § 51-164s . . . merg[ed]
the Juvenile Court and the Superior Court, the legisla-
ture has preserved a separate system for the disposition
of cases involving juveniles accused of wrongdoing.’’
(Internal quotation marks omitted.) In re Prudencio O.,
229 Conn. 691, 696, 643 A.2d 265 (1994); see also General
Statutes § 46b-121.21 General Statutes § 46b-145 pro-
vides in relevant part that ‘‘[n]o child shall be prose-
cuted for an offense before the regular criminal docket
of the Superior Court except as provided in section
46b-127. . . .’’ Thus, ‘‘[t]he General Assembly . . . has
expressed a preference for shielding children from
criminal liability except in clearly circumscribed situa-
tions.’’ State v. Torres, 206 Conn. 346, 360, 538 A.2d
185 (1988).
Although the same criminal statutes apply to adult
and juvenile criminal matters, juvenile matters are gov-
erned by different procedures.22 The difference in treat-
ment accorded to children accused of wrongdoing
attaches the moment the child enters the juvenile justice
system. Id. ‘‘Whenever a child is brought before a judge
of the Superior Court, such judge shall immediately
have the case proceeded upon as a juvenile matter.
. . .’’ General Statutes § 46b-133 (b). The process that
ensues thereafter reflects the goal of the juvenile justice
system, which is not criminal punishment, but rather,
‘‘individualized supervision, care, accountability and
treatment . . . .’’ General Statutes § 46b-121h; see also
Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045,
16 L. Ed. 2d 84 (1966) (‘‘The objective of juvenile court
proceedings is to determin[e] the needs of the child
and of society rather than adjudicat[e] criminal con-
duct. The objectives are to provide measures of guid-
ance and rehabilitation . . . not to fix criminal
responsibility, guilt and punishment.’’). The measures
employed to achieve this aim and to protect the privacy
of the child include a predisposition investigation by a
juvenile probation officer (General Statutes § 46b-134);
the separation of juvenile matters from other business
of the superior court whenever practicable; (General
Statutes § 46b-121 [a]); and confidential proceedings
(General Statutes § 46b-121 [b]).
Moreover, where the juvenile court determines that
the juvenile offender has violated a criminal statute,
the result is a conviction of delinquency rather than a
felony conviction. General Statutes §§ 46b-140 and 46b-
141; see also State v. Ledbetter, supra, 263 Conn. 14
(‘‘[a] delinquency petition does not charge a child with
having committed a crime and . . . adjudication of a
juvenile offense is not a conviction . . . and does not
permit the imposition of criminal sanctions’’ [internal
quotation marks omitted]). A finding that the child has
committed a delinquent act, unlike a felony conviction,
does not carry with it the loss of civil rights and privi-
leges. In addition, the sanctions that are imposed as a
result of conviction are less severe in cases of delin-
quency. Juvenile incarceration takes place at the Juve-
nile Training School; General Statutes § 46b-140 (j); the
purpose of which is to rehabilitate and educate the
child, rather than to exact criminal punishment. The
term of sentence for a juvenile is also restricted by
statute. See General Statutes § 46b-141.
Finally, a juvenile offender is given a significant bene-
fit not readily available to adults who have been con-
victed of violating the law—upon discharge from the
juvenile justice system, the juvenile is afforded a clean
slate. Juvenile matters are sealed to all but the victim,
with some limited exceptions for public administration,
and dispositional orders are not available to the public.
General Statutes § 46b-124. A juvenile offender’s long-
term anonymity is equally preserved, as he may petition
for the erasure of records. General Statutes § 46b-146.
Observing the differences in procedure attendant to
juvenile and adult matters and noting the clear legisla-
tive intent to shield children who do not meet the statu-
tory criteria under § 46b-145 from the less forgiving
adult adjudication and sentencing, our Supreme Court,
in State v. Torres, supra, 206 Conn. 346, held that a
defendant transferred to the regular criminal docket
under § 46b-127 was entitled to be returned to the
docket for juvenile matters on his motion to dismiss
once the court determined that there was no probable
cause for the murder charge that prompted his transfer.
Id., 348; but see State v. Cuffee, 32 Conn. App. 759,
763–64, 630 A.2d 621 (1993) (upholding conviction
where defendant was transferred on murder charge,
and requested jury instruction on lesser included
offense and was convicted of that offense). Notably,
the court in Torres declined to address ‘‘questions about
the validity of a subsequent conviction . . . as a result
of a full trial or a plea of guilty.’’23 State v. Torres, supra,
360 n.17.
In State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998),
our Supreme Court again considered the mandatory
transfer provision under § 46b-127 (a), addressing con-
stitutional challenges to the then newly enacted legisla-
tion eliminating the defendant’s right to a hearing prior
to transfer to the adult court. Our Supreme Court held
that the statute did not violate procedural or substantive
due process.24 In so deciding, the court noted that the
legislature had taken steps to ensure that the protec-
tions conferred on juveniles are not lost if the child
is transferred pursuant to § 46b-127 (a) and it is later
determined that the child should not have been subject
to the transfer statute. Id., 121–22. ‘‘If charges against
a juvenile who was transferred to the criminal docket
pursuant to § 46b-127 (a) are dismissed, § 46b-127 (c)
mandates that the juvenile shall resume his or her juve-
nile status.’’ (Footnote omitted.) Id., 126.
In light of the statutory framework and the relevant
authorities, we conclude that if the statutory age criteria
defining the grounds for transfer under § 46b-127 (a)
cease to be met, the defendant may not be prosecuted,
convicted, and sentenced as an adult. The law precludes
the adult criminal prosecution of children under the
age of fourteen. See General Statutes §§ 46b-145 and
46b-127 (a). ‘‘It is clear that what in an adult would be
a crime, yet when done by a juvenile is a delinquency
and punishable not as in the case of an adult but in a
manner provided in the Juvenile Court Act.’’ (Internal
quotation marks omitted.) State v. Elbert, 115 Conn. 589,
162 A. 769 (1932). A defendant subject to the mandatory
transfer provision may contest the trial court’s authority
over him and upon the court’s granting of his motion to
dismiss resume his juvenile status. See General Statutes
§ 46b-127 (c). ‘‘To determine otherwise would contra-
vene the legislature’s intent that [juveniles] accused
of wrongdoing be accorded different treatment from
adults.’’ (Internal quotation marks omitted.) In re Jan
Carlos D., 297 Conn. 16, 25–26, 997 A.2d 471 (2010),
overruled in part on other grounds by State v. Elson,
311 Conn. 726, 747–48, 754, 91 A.3d 862 (2014); State
v. Torres, supra, 206 Conn. 361.
B
We next turn to the defendant’s related contention
that the defendant’s age at the time of the offense, as
a ‘‘jurisdictional prerequisite’’ to be tried and sentenced
as an adult, must be established by proof beyond a
reasonable doubt. As noted, the crux of the defendant’s
argument is that the state’s assertion that he was over
the age of fourteen at the time of the crimes has signifi-
cant consequences, including criminal felony convic-
tions, lengthy incarceration with an adult inmate
population, and lifetime registration as a sex offender.25
‘‘The accused during a criminal prosecution has at stake
interests of immense importance, both because of the
possibility that he may lose his liberty upon conviction
and because of the certainty that he would be stigma-
tized by the conviction.’’ In re Winship, 397 U.S. 358,
363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). We agree
with the defendant that the gravity of an adult criminal
conviction, as compared to the penalty that attaches
in the adjudication of a juvenile, is substantial.26 The
punishment meted out for the criminal wrongdoing of
adults is imposed on the theory that such punishment
has a deterrent effect. Historically, however, there has
been an acknowledgment in this state, mirrored in the
common law, that children are ‘‘incapable of forming
criminal intent and not of an age where the threat of
punishment could serve as a deterrent.’’ 2 W. LaFave,
Substantive Criminal Law (2d Ed. 2003) § 9.6 (a); see In
re Tyvonne M., 211 Conn. 151, 156, 558 A.2d 661 (1989).
At common law, an offender’s age was, in some
instances, the determinative factor between guilt and
innocence. For children under the age of seven, there
was a conclusive presumption that such offenders were
incapable of committing a crime. State v. Elbert, supra,
115 Conn. 593. Between the ages of seven and fourteen,
there was a rebuttable presumption that the child was
incapable of committing a crime. Id. Children in this
age bracket were presumed not to have the capacity
to discern between good and evil. 2 Z. Swift, A System
of the Laws of the State of Connecticut (1796) p. 368.
The state was thus tasked with overcoming the pre-
sumption by proving the child’s ‘‘vicious will’’; id., p.
367; and ability to understand the wrongfulness of his
conduct. Id., pp. 367–68. Those fourteen and over, how-
ever, were subject to the same criminal laws as adults
and could be held criminally responsible. In re Tyvonne
M., supra, 211 Conn. 156; see 4 W. Blackstone Commen-
taries on the Laws of England (1769) pp. 23–24; 3 E.
Coke, Institutes of the Laws of England (Thomas ed.
1826) p. 571; W. LaFave & A. Scott, Criminal Law (1972)
§ 46, p. 351; 2 Z. Swift, A Digest of the Laws of the State
of Connecticut (1823) p. 361. ‘‘The law recognized that
while a child may have actually intended to perform a
criminal act, children in general could not reasonably
be presumed capable of differentiating right from
wrong. . . . The presumptions of incapacity were cre-
ated to avoid punishing those who, because of age,
could not appreciate the moral dimensions of their
behavior, and for whom the threat of punishment would
not act as a deterrent.’’ (Citation omitted.) In re
Tyvonne M., supra, 156.
In State v. Elbert, supra, 115 Conn. 589, Chief Justice
Maltbie, one of the chief proponents of juvenile reform
at the time, explained that the establishment of our
juvenile justice system and the legislature’s authority
to preclude the criminal adult prosecution of offenders
falling under a certain age pursuant to our juvenile
statutes corresponded to the rule at common law. ‘‘The
age of one who has committed a particular act forbidden
by law has always been an element necessary to make
that act a crime.’’ Id., 593; see also 2 Z. Swift, supra,
p. 361.
The establishment of the juvenile justice system and
the informal and rehabilitative treatment of children
falling below the age designated by statute to be subject
to adult penalties negated the utility and, thus, the need
for the infancy defense in juvenile delinquency proceed-
ings. See In re Tyvonne M., supra, 211 Conn. 161. ‘‘[T]he
child found delinquent is not perceived as a criminal
guilty of one or more offenses, but rather as a child in
need of guidance and rehabilitative services. In effect,
the statutes regulating juvenile misconduct represent a
system-wide displacement of the common law.’’ (Inter-
nal quotation marks omitted.) Id.
It stands to reason, however, that when the state
seeks to prosecute and convict a child for felony
offenses, the state bears the burden of establishing the
child’s eligibility to be tried and sentenced as an adult.
Thus, to be punishable as a criminal offense in adult
court, the offense must be shown to have occurred on
or after the defendant’s fourteenth birthday, and this
must be proved beyond a reasonable doubt.27
C
In the present case, then, the issue is whether the
court erred in denying the defendant’s motion to dis-
miss, in which he claimed that the court lacked the
authority to convict and sentence him as an adult. This
court reviews the denial of a motion to dismiss de novo.
State v. Davis, 76 Conn. App. 653, 669, 820 A.2d 1122
(2003). As indicated previously, the defendant raised
the jurisdictional question concerning his age three
times: at the close of the state’s case-in-chief, at the
close of evidence, and postverdict.28 The court permit-
ted the parties to brief and argue the issue on October
15, 2013, the date of the defendant’s sentencing. At that
time, the defendant also filed a motion for a judgment
of acquittal, in support of which he argued that the
state had failed to prove that the incidents in connection
with which he had been found guilty had occurred on
or about June, 2009. At the start of the hearing, the
court noted that the defendant’s motions presented
interrelated claims with respect to the timing of the
offenses. The court orally ruled on both motions, grant-
ing in part and denying in part the motion for a judgment
of acquittal, and denying the motion to dismiss. With
respect to the motion for a judgment of acquittal, the
court determined that the evidence reasonably permit-
ted a jury finding that two of the incidents had occurred
on or about June, 2009. The court concluded, however,
that the evidence did not reasonably permit a jury find-
ing that one of the incidents had occurred during that
time period and, thus, it acquitted the defendant on
that count. The court denied the defendant’s motion to
dismiss without further elaboration. On the basis of the
record, it is evident that in ruling on the defendant’s
motion to dismiss, the court relied on its reasoning in
denying the motion for a judgment of acquittal as to
the three counts.
Because the time frame of each of the incidents is
central to the trial court’s ruling and the defendant’s
claim on appeal, we first turn our focus to J’s testimony
describing the assaults. For ease of reference in the
discussion of the defendant’s claim, we set forth the
corresponding counts as identified in the court’s jury
instructions.
Counts One and Two: Behind Grandparents’ Barn
J testified that in June, 2009, he was in middle school.
On Tuesday and Thursday afternoons, he took a school
bus home to his grandparents’ house after school. With
respect to the first incident, the prosecutor adduced
evidence that ‘‘there [came] a time when something
happened with [the defendant].’’ J testified that he and
the defendant were playing behind the barn on their
grandparents’ property. The defendant asked J if he
wanted to play the ‘‘psychiatrist game.’’ J agreed to play.
The defendant then pulled down his pants and told J
to suck his penis. J performed fellatio on the defendant,
and then the defendant reciprocated by performing fel-
latio on J. They stopped when their grandmother called
them inside for dinner. J testified that, in this instance,
and the incidents that followed, he did what the defen-
dant told him to do because the defendant threatened
to beat him with a bat.
Counts Three and Four: Behind Defendant’s
House Near Train Tracks
The prosecutor adduced evidence that, ‘‘after the first
incident,’’ on two occasions, J and the defendant
engaged in sexual activity in the woods behind the
defendant’s house. On the first occasion, the defendant
and J, who had been playing with a group of friends,
walked away from the group and into the woods, toward
the train tracks. The defendant told J to stand near a
tree, where he removed J’s shirt and shorts and pre-
tended to tie him to the tree. J testified that the defen-
dant then walked away and ‘‘pretended that we . . .
crashed from a plane or something.’’ When the defen-
dant returned, the defendant and J performed fellatio
on one another. They stopped when their friends called
out looking for them.
Counts Five and Six: Behind Defendant’s
House in Woods near Rock
Regarding the second instance in which the defen-
dant and J engaged in sexual activity in the woods
behind the defendant’s house, J testified that they
walked farther into the woods. There, they sat on a
rock and performed fellatio on one another. The sexual
activity stopped when the defendant’s father called
for them.
Counts Seven and Eight: Defendant’s Basement
J testified that, on another occasion, he and the defen-
dant were at the defendant’s house. The defendant’s
father, who worked the night shift and thus was home
during the day, was taking a shower upstairs. The defen-
dant told J to follow him down the stairs into the base-
ment. It was dark there, and ‘‘everything was like
concrete and metal . . . .’’ Once downstairs, J and the
defendant removed their clothing and sat in a small
sandbox. The defendant, using baby oil to lubricate his
penis, inserted it into J’s anus. After two minutes, J
inserted his penis into the defendant’s anus. They
stopped when they the heard the water from the
upstairs shower stop running.
Counts Nine and Ten: J’s Bedroom
J testified that on another occasion, something simi-
lar to the sexual activity in the basement occurred in
his bedroom. On a day that J was dropped off at his
grandparents’ house, he walked to his house to feed
his cats and clean the litter box. As he was finishing and
washing his hands, he looked up and saw the defendant
standing at the door. The defendant unlocked the door
with a spare key that was kept at their grandparents’
house and came inside. The defendant then ‘‘pushed’’
J up the stairs, where the engaged in anal intercourse
and performed fellatio on one another. They stopped
when their grandmother called the house looking for
them. J testified that he knew it was his grandmother
calling because the telephone in his house had a caller
identification feature that announced the name of the
caller after a series of rings.
Counts Eleven and Twelve: Grandparents’ Barn
The prosecutor adduced evidence that there was
‘‘another time’’ that ‘‘something of this nature’’ hap-
pened. J testified that, on that occasion, the defendant
told him that he found ‘‘something cool . . . .’’ The
defendant then led him into their grandparents’ barn,
shut the doors, and put him on a couch. There, the
defendant pulled down J’s pants and ‘‘licked [his] butt.’’
J then did the same thing to the defendant. After five
minutes, they heard their grandfather calling them
inside and stopped.
Counts Thirteen and Fourteen: J’s Basement
The prosecutor asked J if he could recall another
occasion when ‘‘something of this sort of nature
occurr[ed] in another location . . . .’’ J testified that
‘‘it was another time that I was doing my chores. I had
finished cleaning the cat box. And this time it was before
the other time that . . . it happened at my house.’’ J
testified that the defendant came in ‘‘right after I had
finished washing my hands, and he brought me down-
stairs.’’ The defendant allegedly pushed J onto a pile
of clothing, pulled down his pants, and ‘‘licked [his]
butt.’’ J testified that the defendant stopped after five
minutes because he did not want their grandmother to
call the house again, prompting the prosecutor to ask,
‘‘So, this happened after the other time in your bedroom
. . . .’’ J responded in the affirmative.
On the basis of the above-described testimony, the
jury returned a verdict of guilty on count two, of which
the defendant subsequently was acquitted by the court;
guilty on count six and guilty on count ten, both of
which alleged first degree sexual assault; and guilty on
count fifteen, which alleged risk of injury to a child.
The court acquitted the defendant on counts eleven and
twelve at the close of the state’s case-in-chief and, thus,
those counts were not submitted to the jury. The jury
found the defendant not guilty on all other charges. As
a consequence, five of the seven incidents described
by J were rejected as bases for criminal liability by the
jury or the court. The two incidents remaining, which
are the subject of the conviction on appeal, include the
incident involving fellatio behind the defendant’s house
in the woods near the rock, and the incident in J’s
bedroom involving fellatio and/or anal intercourse.29
Thus, the issue is whether the evidence supports a con-
clusion that these two incidents took place after the
defendant’s fourteenth birthday, as is required to con-
vict and sentence him as an adult.
As illustrated by J’s testimony, the questions posed
to him by the prosecutor centered on the location and
the conduct involved in each of the charges, not the
time frame. When the prosecutor did try to clarify when
the assaults took place, J suggested that the incidents
happened over a wide-ranging period of time, as demon-
strated by the following exchange between the prosecu-
tor and J concerning the incident behind the defendant’s
house, near the train tracks. The prosecutor asked J
whether this incident occurred in the same time frame
as the first incident:
‘‘[The Prosecutor]: Okay. And was this . . . around
the same time frame [as the first incident]?
‘‘[J]: Relatively.
‘‘[The Prosecutor]: When do you think this occurred?
‘‘[J]: Fall.
‘‘[The Prosecutor]: Of what year?
‘‘[J]: Two thousand ten, maybe.
‘‘[The Prosecutor]: Okay. . . . [W]hat grade were
you in?
‘‘[J]: That year I would be in seventh grade.
‘‘[The Prosecutor]: Okay. Let me . . . let me just ask
you this: how old were you when this was happening?
‘‘[J]: Nine or ten.’’30
The testimony of S and Detective Dragon established
that the crimes were reported to the police in August,
2010, more than one year after J began counseling in
June, 2009. J testified that there was no contact between
him and the defendant following S’s discovery of the
photograph of his penis. S testified that she discovered
the photograph in June, 2009. J’s aunt also confirmed
that he had disclosed the sexual abuse to her in June,
2009. Thus, to the extent that J testified that the sexual
activity was still ongoing in the fall of 2010, after it had
been reported to the police, his statement appears to
be inaccurate, as established by his later statement that
the incidents took place when he was nine or ten
years old.
On cross-examination, J’s uncertainty concerning the
time frame of the assaults was equally patent:
‘‘[Defense Counsel]: And you also indicated that these
[incidents] happened [when you were] about nine or
ten and [the defendant] was two years older than you.
So, this would have happened when [the defendant]
was twelve or thirteen; isn’t that true?
‘‘[J]: Yeah.
***
‘‘[Defense Counsel]: I’d like to talk to you a little bit
about . . . with respect to the time frame that you
claimed all this happened; okay? When you first started
talking, you made a mention that this all started at
the end of fourth grade. Is that what your testimony
is today?
‘‘[J]: Yes.
‘‘[Defense Counsel]: And then you talked about, it
happened maybe a month apart?
‘‘[J]: Yes.
‘‘[Defense Counsel]: Okay. So, you’re claiming all this
happened within a month?
‘‘[J]: No.
‘‘[Defense Counsel]: So, what is your claim with
respect to when you claim this happened?
‘‘[J]: Could you explain?
‘‘[Defense Counsel]: When do you claim this
happened?
‘‘[J]: What are we talking about? Like, everything?
‘‘[Defense Counsel]: Yes.
‘‘[J]: I meant that it all took place, like—not just, like,
in a month. Like, a month in between each incident.
‘‘[Defense Counsel]: So, you’re claiming it was once
a month. That’s your claim here today.
‘‘[J]: Yes.
‘‘[Defense Counsel]: . . . Now, you remember talk-
ing to [Cheyne] in August of 2010.
‘‘[J]: Yes.
‘‘[Defense Counsel]: Is that correct? And do you
remember telling her one time that it started in the end
of fourth grade. Is that what you remember telling her?
‘‘[J]: Yes.
‘‘[Defense Counsel]: Do you remember telling her that
the last it happened was October of fifth grade?
‘‘[J]: No.
‘‘[Defense Counsel]: Okay. And do you remember
telling her that—okay, so, if it started [at] the end of
fourth grade, you would agree with me that’s June,
right?
‘‘[J]: Yeah.
‘‘[Defense Counsel]: Okay. And the beginning of fifth
grade is—is October, you said, I think; right?
‘‘[J]: Yeah.
‘‘[Defense Counsel]: All right. So, that’s, what, a four
month period; is that fair?
‘‘[J]: Yeah.
‘‘[Defense Counsel]: Do you remember telling
[Cheyne] on another occasion that sometimes it hap-
pened in the fall, sometimes it happened in the winter,
sometimes it happened in the spring? Do you remember
all that talk?
‘‘[J]: Yes.
‘‘[Defense Counsel]: Okay. Would you agree with me
that between June and October is not in the spring?
‘‘[J]: Yeah.’’
In considering this testimony, we note that there was
no evidence presented by the state to establish J’s age
or the year when he attended fourth or fifth grade.
Consequently, to the extent that his testimony focused
on crimes that occurred when he attended those grade
levels, there is no basis to determine how old J—and
by extension, the defendant—was at that time.
There was little attempt by the state to establish a
more specific time frame or time line of events, as
demonstrated by the following exchange between the
prosecutor and J on redirect examination:
‘‘[The Prosecutor]: [D]o you know—do you know all
the dates when all these different things happened with
any degree of certainty?
‘‘[J]: No.
‘‘[The Prosecutor]: And you’re how—again, you’re
fourteen years old today?
‘‘[J]: Yeah.
‘‘[The Prosecutor]: That was your testimony? And
back—back when this happened, you would have been
about eleven? Ten or eleven?
‘‘[Defense Counsel]: Objection. He testified he was
nine or ten at the time of the incidences. . . .
‘‘[The Prosecutor]: Nine or ten?
‘‘The Court: That’s true.
‘‘[J]: Yeah. . . .
‘‘[The Prosecutor]: So, several years ago.
‘‘[J]: Yeah.
‘‘[The Prosecutor]: And back when you were that age,
did you carry a calendar around with you?
‘‘[J]: No.
‘‘[The Prosecutor]: Did you have a watch with you?
‘‘[J]: No.
‘‘[The Prosecutor]: Did you have an iPhone with you
that had the dates on it?
‘‘[J]: No.
‘‘[The Prosecutor]: Did you make a journal that—
where you wrote down the dates every time your cousin
assaulted you?
‘‘[J]: No.’’
Pursuant to this court’s careful review of the record,
the testimony established that J was nine or ten years
old at the time of the assaults. Within that two year
time frame, there is a seven month span of time in
which the assaults may have occurred, according to J’s
testimony. Within that seven month time frame, there
are two incidents underlying the defendant’s convic-
tion. From this evidence, the court deemed it possible
for the jury to have found, beyond a reasonable doubt,
that these two incidents took place, as charged, on
or about June, 2009, and, thus, after the defendant’s
fourteenth birthday.
Court’s Ruling
At the outset of the hearing, the court noted that ‘‘to
be tried as an adult, the defendant must have been
fourteen years old when the criminal conduct occurred.
In this case the evidence established that the defendant
turned fourteen on September 17, 2008. There is no
doubt that being tried as an adult exposes the defendant
to greater punishment than if he had been tried as a
juvenile.’’ The court, in considering the evidence at trial,
stated that it was ‘‘trouble[ed]’’ by the state’s allegation
that the assaults had taken place in June, 2009. Specifi-
cally, the court stated: ‘‘The state is given lots of leeway
in terms of specificity in charging child sexual assault
cases. If the state had simply alleged on or about 2009,
then we would not have an issue here. But by charging
on or about June, 2009 . . . and then the court, in
instructing that the state must prove beyond a reason-
able doubt that on or about the dates specified in the
information the defendant engaged in sexual inter-
course with [J], these seven incidences reasonably
could not have occurred on or about June of 2009; in
other words, how can seven instances that did not occur
within the same month, but about a month apart, all
have occurred about June of 2009?’’
The court reasoned that although there was no direct
testimony to establish that the assaults took place in
June, 2009, the testimony did establish that S discovered
the photograph of J’s penis on her cell phone in the
second to last week of June, 2009. The court concluded
that this evidence, coupled with J’s testimony that the
assaults occurred when he was nine or ten, permitted
an inference that the abuse was still occurring in
June, 2009.
The court reasoned that J ‘‘also testified that the
different incidences were maybe a month apart . . . .
On cross-examination he clarified that these incidences
did not occur within one month, but, like, a month in
between each incident. . . . He also testified he did
not know when the dates were with certainty. . . . [J’s]
mother found the picture on the cell phone in late June
of 2009. While there’s no direct testimony as to whether
the acts occurred close in time to when [S] found the
[photograph on her] cell phone, an inference can be
made that they did, since [J] testified he was nine or
ten when the acts occurred.
‘‘The fact that he said he was nine or ten when these
acts were happening—he was ten in June of 2009—in
mind with the fact that [J] testified he took a picture
of his penis at the defendant’s request and [S] found
the picture in June of 2009, a reasonable inference can
be drawn that sexual activity was still occurring
between [J] and the defendant in June of 2009.’’ (Empha-
sis added.)
On the basis of its determination that the conduct was
ongoing in June, 2009, and that the incidents occurred
about one month apart, the court concluded that the
incident that J described as having occurred first, the
incident behind the grandparents’ barn, could not have
taken place in June, 2009. The court thus acquitted
the defendant on count two.31 The court ruled that the
conduct at issue in the remaining counts—particularly,
the incident involving fellatio in the woods behind the
defendant’s house on the rock and the incident involv-
ing fellatio and/or anal sex in J’s bedroom—could have
taken place in the June, 2009 time frame. Thus, the court
sustained the defendant’s conviction on those counts.
Undergirding the court’s analysis is the notion that
the jury found, based on the court’s instruction, that
the crimes occurred ‘‘on or about June of 2009,’’ which
it appears to have construed to mean that the jury
determined that the crimes occurred in June, 2009.
There are two problems with the court’s assumption.
First, without any instruction by the court defining the
descriptor, ‘‘on or about,’’ this could be taken to mean,
consistent with the testimony presented, that the inci-
dents took place over a wide-ranging period of time.
Indeed, the state appears to have proceeded to trial
with that mindset. Second, the jury was instructed that
the state was not required to prove when the incidents
occurred. Specifically, the jury was instructed: ‘‘The
state does not have to prove the exact date of the
offense charged beyond a reasonable doubt, only that
the alleged act as charged occurred on or about June,
2009.’’ For these reasons, the instruction was an
improper basis for the court’s determination that the
jury had made a finding as to the time frame of the
offenses of which it found the defendant guilty.
We turn next to the court’s related conclusion that
an inference could be drawn that the acts occurred ‘‘on
or about June, 2009,’’ on the basis of S’s discovery of
the photograph in the second to last week of June. The
defendant argues, and we agree, that the discovery of
the photograph is an untenable basis for the inference
drawn by the court that, the crimes occurred in the
time frame alleged.
The evidence concerning S’s discovery of the photo-
graph is as follows. S testified that she discovered the
photograph of J’s penis on her cell phone in June, 2009.
She testified that she looked at her cell phone because
it was lit up, which she thought was unusual given the
early morning hour. She found a text message, or ‘‘small
conversation,’’ between J and his friends, which
prompted her to search the contents of her cell phone.
She then found the photograph of J’s penis. After dis-
covering the photograph, she woke up J, who admitted
that he had taken the photograph of his penis and
claimed that he had done so at the defendant’s request.
The photograph, however, which was not introduced
into evidence, had no connection to the charges, which
were premised on allegations that the defendant
engaged in sexual intercourse with J and that he had
illegal contact with J’s intimate parts. There was no
testimony suggesting when the photograph was taken.
There was no testimony that the photograph had been
found in connection with a communication between
the defendant and J. The state did not present evidence
pertaining to the cell phone records of S. To be clear,
the only evidence linking the photograph to the defen-
dant at all was J’s testimony that he took the photograph
of himself at the defendant’s request. Moreover, the
testimony of S expressly foreclosed any connection
between her discovery of the photograph and the time
frame of the offenses. When S was questioned regarding
her conversation with J immediately following her dis-
covery of the photograph, she was unable to provide
any information about the timing of the assaults:
‘‘[The Prosecutor]: Okay. And did he indicate to you
when the activity occurred?
‘‘[S]: He—I did not receive a lot of details. . . .
‘‘[The Prosecutor]: So, you didn’t—you didn’t—you
didn’t get a lot of detail—you didn’t get any more infor-
mation?
‘‘[S]: No.’’
In short, S’s testimony concerning the discovery of
the photograph in her cell phone in June, 2009, and J’s
subsequent admission to S as a result of that discovery,
has no bearing on when the assaults took place. The
trial court’s determination that an inference could be
made that the acts were then occurring because J nar-
rowed the time frame of the assaults to a two year time
period, when he was nine or ten, and S discovered a
photograph on her cell phone when he was ten, is simply
unsupportable.
The only thing that the evidence reasonably tended
to support is that there were seven incidents, over a
period of several months, when J was nine or ten. The
window of time in which the assaults could have
occurred, on the basis of this testimony, extended from
J’s ninth birthday, on December 31, 2007, to the date
of the discovery of the photograph in June, 2009, when S
terminated all contact between the boys. The defendant
turned fourteen on September 17, 2008. Contrary to
the court’s determination, however, there is no way to
determine when these incidents began or ended within
that window of time—and there is certainly no basis
to conclude that any of them took place on or after
September 17, 2008. Although the prosecutor appeared
initially to lead J’s testimony with the June, 2009 time
frame as a marker, J testified that the incidents took
place over several months, making it impossible for the
incidents to have commenced and ended in June, 2009.
In the forensic interview, which was offered by the
state, in part, to corroborate J’s testimony as to the
timing of the assaults, J stated that the incidents
spanned several months, almost one year, in a different
time frame, beginning in the fall of fourth grade. There
again, however, no year was mentioned. In the inter-
view, J also suggested that the defendant was twelve
or thirteen at the time of the assaults—a fact that J
confirmed on cross-examination.
Finally, because there is limited evidence as to the
sequence of the incidents, even if one were to try to
affix a starting point to that sequence, there are several
hundred possible permutations of these events, making
it impossible to determine which incident occurred
when.32 This, of course, is of critical importance here
because the defendant was acquitted of all charges in
connection with five of the seven incidents. In conclu-
sion, there is no way to determine, without resorting
to speculation and conjecture, whether the defendant
engaged in the sexual misconduct underlying the
offenses of which the jury found him guilty on or after
his fourteenth birthday.
While the original warrant, alleging that the acts
occurred in June, 2009, may have been facially sufficient
for a mandatory transfer to the regular criminal docket
pursuant to § 46b-127 (a), the evidence to support the
state’s allegations as to the time frame of the defen-
dant’s alleged conduct was woefully deficient. The state
failed to establish, by any burden of proof, that the
defendant was at least fourteen years old when he
engaged in the conduct underlying the convicted
offenses. Hence, the court had no authority to render
judgment against him as an adult offender. Accordingly,
we conclude that the court erred in denying the defen-
dant’s motion to dismiss the amended information and
transfer his case back to the juvenile docket.33
The judgment of conviction is vacated and the case
is remanded to the trial court with direction to grant
the motion to dismiss the amended information and to
transfer the matter back to the juvenile docket for fur-
ther proceedings in that forum according to law.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
Although § 46b-127 has been the subject of several amendments since
the time of the alleged crimes and the defendant’s transfer from the juvenile
docket to the regular criminal docket of the Superior Court, those amend-
ments have no bearing on the merits of this appeal. For convenience, we
refer to the current revision of § 46b-127.
2
Alternatively, the defendant claims that the court committed error as to
certain evidentiary rulings, thereby entitling him to a new trial. The defendant
has offered scant analysis to support these claims and has failed to assert
or argue how the court erred in its rulings. ‘‘Where a claim is asserted in
the statement of issues but thereafter receives only cursory attention in the
brief without substantive discussion or citation of authorities, it is deemed
to be abandoned.’’ (Internal quotation marks omitted.) Kelib v. Connecticut
Housing Finance Authority, 100 Conn. App. 351, 353, 918 A.2d 288 (2007).
We thus decline to consider these claims.
3
The defendant’s mother is the sister of J’s father.
4
The state introduced evidence of the defendant’s and J’s birth dates to
establish the age differential between the defendant and J under § 53a-70
(a) (2), which provides that a person is guilty of sexual assault in the first
degree when such person ‘‘engages in sexual intercourse with another person
and such other person is under thirteen years of age and the actor is more
than two years older than such person . . . .’’
5
R and G are the parents of the defendant’s mother and J’s father.
6
S later deleted the photograph. J testified that he sent the photograph
of his penis to the defendant. There was no evidence at trial concerning
S’s cell phone records, the defendant’s cell phone records, or the alleged
transmission of any photograph.
7
The parties stipulated to the introduction of the forensic interview at
trial for a limited purpose—the defendant, on the ground that J’s statements
during the interview were materially inconsistent with his statements at
trial, and the state on the ground that J’s statements were materially consis-
tent. During deliberations, the jury asked to see and was shown the forensic
interview in its entirety a second time.
8
J described a red, plastic bat, a wooden bat, a wooden bat engraved
with his initials, a blue metal bat with a black handle, and a blue metal bat
with a gray handle.
9
The colloquy on that subject was as follows:
‘‘Cheyne: You said that these incidents happened during on Tuesdays and
Thursdays during track practice, after track practice?
‘‘J: Yeah, after track practice and sometimes when track practice and
track, like, was over during the winter. Like, every time that he, like, did
it, it would be in a different month. Like, it started in autumn, went to
winter, summer, spring. He did it for a whole year, I think.
‘‘Cheyne: Okay, it started in autumn when you were in fourth grade?
‘‘J: Yes.
‘‘Cheyne: Okay. And went and continued through?
‘‘J: Winter . . .
‘‘Cheyne: Winter you were still in the fourth grade?
‘‘J: No, winter, it was, um, the, like, the middle of fourth grade.
‘‘Cheyne: Winter was the middle of fourth grade, and then spring was the
end of fourth grade?
‘‘J: Yeah: And then summer of fourth grade, and then the autumn of
fifth grade.
‘‘Cheyne: Autumn of fifth grade. Okay, the autumn of fifth grade. And
what was the last time?
‘‘J: The last time was, like, the first day of autumn, I think. . . .
‘‘Cheyne: The very last time, what month do you think, what month was it?
‘‘J: I would have to say, like, maybe October.
‘‘Cheyne: Tell me what makes you say it’s October.
‘‘J: Well, because in the forest the leaves were starting to change and
fall off.
‘‘Cheyne: And this was October of fifth grade?
‘‘J: Yeah.’’
10
The transfer order contains the following notation: ‘‘[p]rosecutor reports
date of incident is June, 2009 . . . [the defendant’s] date of birth is [Septem-
ber 17, 1994]. Probable cause was found on [December 2, 2011]. Case is
transferred to the adult court . . . .’’
11
S and J’s aunt testified as to their conversations with J following his
disclosure. The court instructed the jury that it could consider this evidence
to corroborate the fact that at a certain point in time J made a complaint
or statement to S and his aunt concerning the assaults.
12
The court rendered a judgment of acquittal on two counts for lack of
proof of the element of penetration.
13
At trial, the defense argued that this ‘‘uncontroverted testimony’’ served
to undermine J’s testimony as to the time frame of the alleged assaults, and
undercut any claim that the alleged assaults took place after the defendant’s
fourteenth birthday, which, as noted previously, was September 17, 2008.
Review of the record, however, reveals that S testified concerning J’s after-
school schedule in 2009 and testified that he went to his grandmother’s
house after school.
14
The defendant also argued that J’s ‘‘wildly inconsistent’’ testimony could
not support a guilty verdict.
15
On appeal, the state correctly points out that § 46b-127 (a) (2) permits
transfer only on motion of the prosecution and is limited to certain offenses.
16
The court stated: ‘‘I’m going to deny the motion at this point in time
and note that under Practice Book § 42-56, should there be a conviction,
the defense is permitted to file what’s called a motion in arrest of judgment.’’
17
The defendant is not currently incarcerated. After imposition of the
sentence, the trial court released the defendant on bond pending appeal.
18
General Statutes § 46b-120 (1) defines ‘‘child’’ in relevant part as ‘‘any
person under eighteen years of age . . . .’’
19
General Statutes § 46b-127 provides: ‘‘(a) (1) The court shall automati-
cally transfer from the docket for juvenile matters to the regular criminal
docket of the Superior Court the case of any child charged with the commis-
sion of a capital felony under the provisions of section 53a-54b in effect
prior to April 25, 2012, a class A or B felony or a violation of section 53a-
54d, provided such offense was committed after such child attained the age
of fourteen years and counsel has been appointed for such child if such
child is indigent. Such counsel may appear with the child but shall not be
permitted to make any argument or file any motion in opposition to the
transfer. The child shall be arraigned in the regular criminal docket of the
Superior Court at the next court date following such transfer, provided any
proceedings held prior to the finalization of such transfer shall be private
and shall be conducted in such parts of the courthouse or the building in
which the court is located that are separate and apart from the other parts
of the court which are then being used for proceedings pertaining to adults
charged with crimes.
‘‘(2) A state’s attorney may, at any time after such arraignment, file a
motion to transfer the case of any child charged with the commission of a
class B felony or a violation of subdivision (2) of subsection (a) of section
53a-70 to the docket for juvenile matters for proceedings in accordance
with the provisions of this chapter.
‘‘(b) (1) Upon motion of a prosecutorial official, the superior court for
juvenile matters shall conduct a hearing to determine whether the case of
any child charged with the commission of a class C, D or E felony or an
unclassified felony shall be transferred from the docket for juvenile matters
to the regular criminal docket of the Superior Court. The court shall not
order that the case be transferred under this subdivision unless the court
finds that (A) such offense was committed after such child attained the age
of fourteen years, (B) there is probable cause to believe the child has
committed the act for which the child is charged, and (C) the best interests
of the child and the public will not be served by maintaining the case in
the superior court for juvenile matters. In making such findings, the court
shall consider (i) any prior criminal or juvenile offenses committed by the
child, (ii) the seriousness of such offenses, (iii) any evidence that the child
has intellectual disability or mental illness, and (iv) the availability of services
in the docket for juvenile matters that can serve the child’s needs. Any
motion under this subdivision shall be made, and any hearing under this
subdivision shall be held, not later than thirty days after the child is arraigned
in the superior court for juvenile matters.
‘‘(2) If a case is transferred to the regular criminal docket pursuant to
subdivision (1) of this subsection, the court sitting for the regular criminal
docket may return the case to the docket for juvenile matters at any time
prior to a jury rendering a verdict or the entry of a guilty plea for good cause
shown for proceedings in accordance with the provisions of this chapter.
‘‘(c) Upon the effectuation of the transfer, such child shall stand trial and
be sentenced, if convicted, as if such child were eighteen years of age. Such
child shall receive credit against any sentence imposed for time served in
a juvenile facility prior to the effectuation of the transfer. A child who has
been transferred may enter a guilty plea to a lesser offense if the court finds
that such plea is made knowingly and voluntarily. Any child transferred to
the regular criminal docket who pleads guilty to a lesser offense shall not
resume such child’s status as a juvenile regarding such offense. If the action
is dismissed or nolled or if such child is found not guilty of the charge for
which such child was transferred or of any lesser included offenses, the
child shall resume such child’s status as a juvenile until such child attains
the age of eighteen years.
‘‘(d) Any child whose case is transferred to the regular criminal docket
of the Superior Court who is detained pursuant to such case shall be in the
custody of the Commissioner of Correction upon the finalization of such
transfer. A transfer shall be final (1) upon the arraignment on the regular
criminal docket until a motion filed by the state’s attorney pursuant to
subsection (a) of this section is granted by the court, or (2) upon the
arraignment on the regular criminal docket of a transfer ordered pursuant
to subsection (b) of this section until the court sitting for the regular criminal
docket orders the case returned to the docket for juvenile matters for good
cause shown. Any child whose case is returned to the docket for juvenile
matters who is detained pursuant to such case shall be in the custody of
the Judicial Department.
‘‘(e) The transfer of a child to a Department of Correction facility shall
be limited as provided in subsection (d) of this section and said subsection
shall not be construed to permit the transfer of or otherwise reduce or
eliminate any other population of juveniles in detention or confinement
within the Judicial Department or the Department of Children and Families.
‘‘(f) Upon the motion of any party or upon the court’s own motion, the
case of any youth age sixteen or seventeen, except a case that has been
transferred to the regular criminal docket of the Superior Court pursuant
to subsection (a) or (b) of this section, which is pending on the youthful
offender docket, regular criminal docket of the Superior Court or any docket
for the presentment of defendants in motor vehicle matters, where the youth
is charged with committing any offense or violation for which a term of
imprisonment may be imposed, other than a violation of section 14-227a or
14-227g, may, before trial or before the entry of a guilty plea, be transferred
to the docket for juvenile matters if (1) the youth is alleged to have committed
such offense or violation on or after January 1, 2010, while sixteen years
of age, or is alleged to have committed such offense or violation on or after
July 1, 2012, while seventeen years of age, and (2) after a hearing considering
the facts and circumstances of the case and the prior history of the youth,
the court determines that the programs and services available pursuant
to a proceeding in the superior court for juvenile matters would more
appropriately address the needs of the youth and that the youth and the
community would be better served by treating the youth as a delinquent.
Upon ordering such transfer, the court shall vacate any pleas entered in the
matter and advise the youth of the youth’s rights, and the youth shall (A)
enter pleas on the docket for juvenile matters in the jurisdiction where the
youth resides, and (B) be subject to prosecution as a delinquent child. The
decision of the court concerning the transfer of a youth’s case from the
youthful offender docket, regular criminal docket of the Superior Court or
any docket for the presentment of defendants in motor vehicle matters shall
not be a final judgment for purposes of appeal.’’
20
Whenever a child is brought before the Superior Court on charges, the
court must first determine whether there is probable cause to believe that
the child has committed the acts alleged. See General Statutes §§ 46b-128
(a) and 46b-133 (c). The order to transfer is a ministerial act performed by
the juvenile court judge. In 1995, the legislature eliminated the previous
requirement that transfer to the adult docket occur only after an evidentiary
hearing and the issuance of certain written findings by the juvenile court
judge to support the transfer order; see In re Edwin N., 215 Conn. 277, 280,
575 A.2d 1016 (1990) (valid transfer requires written findings after hearing);
following the amendment of the transfer statute by No. 95-225 of the 1995
Public Acts, § 46b-127 (a) (1) ‘‘prohibits the juvenile court from participating
in any meaningful manner with respect to the transfer of those individuals
at the time of the automatic transfer.’’ State v. Angel C., 245 Conn. 93, 115,
715 A.2d 652 (1998). Under the current law, ‘‘counsel may appear with the
child but shall not be permitted to make any argument or file any motion
in opposition to the transfer. . . .’’ General Statutes § 46b-127 (a) (1).
21
General Statutes § 46b-121 (a) (2) provides: ‘‘Juvenile matters in the
criminal session include all proceedings concerning delinquent children
within this state and persons eighteen years of age and older who are under
the supervision of a juvenile probation officer while on probation or a
suspended commitment to the Department of Children and Families, for
purposes of enforcing any court orders entered as part of such probation
or suspended commitment.’’
22
Our Supreme Court has held that adult and juvenile matters are not
coextensive proceedings under Connecticut law. See State v. Ledbetter,
supra, 263 Conn. 4 (confessions law governing juvenile proceeding inapplica-
ble in adult proceeding); In re Jan Carlos D., 297 Conn. 16, 25, 997 A.2d
471 (2010) (speedy information provision under General Statutes § 54-1f [a]
not applicable to juvenile summons and complaint), overruled in part on
other grounds by State v. Elson, 311 Conn. 726, 747–48, 754, 91 A.3d 862
(2014); In re Prudencio O., supra, 229 Conn. 698–99 (sixty day period for
provision of probable cause hearing under General Statutes § 54-46a not
applicable to juvenile proceedings).
23
In Torres, the trial court ruled that the state had failed to establish
probable cause to proceed with the murder charge that had precipitated
the defendant’s transfer to adult court. State v. Torres, supra, 206 Conn.
350. The state then filed a substitute information charging the defendant
with manslaughter in the first degree with a firearm. Id. After the defendant
unsuccessfully moved the court to dismiss his case or transfer it back to
juvenile court, he pleaded nolo contendere to the substitute charge and was
sentenced accordingly. Id.
24
The court in Angel C. distinguished Kent v. United States, supra, 383
U.S. 541, where the United States Supreme Court held that a transfer statute
that deprives a juvenile of his or her right to be tried in juvenile court
without a hearing constituted a violation of due process. Our Supreme Court
reasoned that the statute at issue in Kent vested original and exclusive
jurisdiction in the juvenile court and permitted it to waive jurisdiction and
transfer to the regular docket only after a full investigation. State v. Angel
C., supra, 245 Conn. 107. By contrast, our mandatory transfer provision
denies the accused his or her juvenile status ab initio on the basis of the
delineated statutory criteria, i.e., the defendant’s age and the alleged commis-
sion of certain offenses. Id. Under § 46b-127 (a), the juvenile court does not
have exclusive jurisdiction, nor is it given a waiver. Id., 114–15. Accordingly,
‘‘a juvenile who is at least fourteen years of age and charged with certain
offenses has no constitutionally cognizable liberty interest in juvenile status.’’
Id., 121.
25
The defendant further argues that the United States Supreme Court’s
holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000) constitutionally dictates that the defendant’s age, at the time
of the offense, be established. More specifically, he claims that his age is
an element that increases the punishment and, thus, pursuant to Apprendi,
there must be proof beyond a reasonable doubt to support a jury finding
that the crimes in question occurred after he reached the age of fourteen.
We are not of the view that Apprendi supports the defendant’s claim. In
Apprendi, the Supreme Court held that ‘‘any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’’ Id., 490. Apprendi does
not stand for the broad proposition advanced by the defendant that any
factual determination that is causally related to a subsequent penalty
imposed must be decided by a jury.
26
Among the most common collateral consequences of a felony conviction
are disenfranchisement, denial of federal benefits, including housing and
student loans, registration as a sex offender, and limits on firearm posses-
sion. The American Bar Association’s House of Delegates has compiled a
database, the National Inventory of Collateral Consequences of Conviction,
to serve as a guide to defense attorneys and prosecutors in advising and
charging decisions. The database lists more than sixteen thousand manda-
tory collateral consequences for state and federal convictions. See American
Bar Association, ‘‘National Inventory of Collateral Consequences of Criminal
Conviction,’’ available at http://www.abacollateralconsequences.org/
description/ (last visited August 6, 2015).
27
Our conclusion is consistent with what is already the practice in this
state—the state is foreclosed from prosecuting in adult court conduct that
occurred before the accused’s fourteenth birthday. See State v. Taylor G.,
315 Conn. 734, 766–67, 110 A.3d 338 (2015) (state amended information
because defendant could not be charged as juvenile for conduct occurring
prior to fourteenth birthday); State v. Davis, 76 Conn. App. 653, 668 n.16,
820 A.2d 1122 (2003) (same).
28
The state does not contest that the defendant’s jurisdictional claim
is preserved.
29
There was no specific unanimity instruction or interrogatories requested
or given as to the defendant’s conduct underlying the criminal charges in
counts nine and ten, the incident in J’s bedroom. Thus, it is unclear whether
the jury found that the defendant committed anal intercourse or fellatio.
Accordingly, we refer to the conduct as the court’s instruction did, ‘‘fellatio
and/or anal intercourse.’’
30
J became nine years old on December 31, 2007.
31
On that score, the court stated, ‘‘Even in taking into account that [J]
was only giving his best estimate and that he was . . . fourteen years old
at the time of his testimony, he was testifying to events that allegedly
occurred when he was ten years old; it’s hard to reconcile the first sexual
act . . . as having occurred on or about June of 2009, based upon the
evidence presented.’’
32
More particularly, we note that the incident behind the grandparents’
barn is a fixed point in the sequence of the events, as J identified it as the
‘‘first incident.’’ With respect to the two incidents in the woods behind the
defendant’s house, J confirmed that the incident near the rock came after
the incident near the train tracks. J first suggested that the incident in his
bedroom occurred before the incident in the defendant’s basement. He later
stated that the incident in his bedroom occurred after the incident in the
defendant’s basement. With respect to the remaining incidents, there is no
indication at all as to their sequence in the chain of events.
33
Alternatively, the defendant seeks an acquittal on the asserted basis
that no jury reasonably could have found that the crimes occurred on or
about June, 2009. The defendant concedes that the timing of the offense is
not an element of the crimes, but argues that ‘‘it must be shown with
some baseline level of precision where the date of [the] offense would be
prejudicial to the defendant.’’ In support of his claim, the defendant directs
our attention to State v. Morales, 45 Conn. App. 116, 694 A.2d 1356 (1997),
appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998), on which the trial
court relied in acquitting the defendant of count two.
In Morales, the defendant was charged with sexual assault in the first
degree in violation of § 53a-70 (a) (2) ‘‘at some unknown time between the
fall, 1989, and June, 1990 . . . .’’ (Internal quotation marks omitted.) Id.,
133. The state’s evidence at trial failed to establish that the assaults occurred
in the time frame alleged. Id., 136. Subdivision (2) of § 53a-70 (a) did not
become effective until October 1, 1989. Id., 133. Accordingly, this court
held that the defendant’s conviction of sexual assault in the first degree
constituted a violation of the ex post facto clause of the federal constitution.
Id., 133–36. This court found, however, that sufficient evidence had been
presented to justify a finding of guilt beyond a reasonable doubt that the
defendant had committed the acts constituting the crime of sexual assault
in the second degree, the law proscribing the defendant’s conduct prior to
the enactment of subdivision (2), and a lesser included offense of sexual
assault in the first degree. Id., 136. Accordingly, the defendant’s case was
remanded for resentencing on that charge. Id.
Although the issue in Morales was also one of the sufficiency of the
evidence as to the time frame of the offenses, Morales does not support
the defendant’s contention that an acquittal is the appropriate remedy here.
Although we conclude that the state did not pursue these charges in the
appropriate venue, we are nonetheless satisfied that there is sufficient evi-
dence to support the jury’s guilty findings as to the elements of the convicted
offenses; therefore, an acquittal on this basis is not justified.