State v. Corringham ( 2015 )

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STATE OF CONNECTICUT v. BRIAN W.
CORRINGHAM
(AC 36684)
(AC 36685)
(AC 36686)
Lavine, Keller and Flynn, Js.
Argued January 12—officially released March 17, 2015
(Appeal from Superior Court, judicial district of New
London, geographical area number twenty-one,
Moukawsher, J.)
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Maria del Pilar Gonzalez, special deputy assistant
state’s attorney, with whom, on the brief, were Michael
L. Regan, state’s attorney, and Marissa Goldberg, dep-
uty assistant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Brian W. Corringham,
brings this consolidated appeal from the judgments of
the trial court finding him in violation of probation
pursuant to General Statutes § 53a-32. The defendant
claims that the court’s finding that he violated his proba-
tion was not supported by the evidence. We affirm the
judgments of the trial court.
The following procedural history underlies this
appeal. In 2008, the defendant was convicted under
docket number K21N-CR-06-0132614 of risk of injury
to a child, and was sentenced to a five year term of
incarceration, execution suspended, and a three year
term of probation. In 2009, the defendant was convicted
under docket number K21N-CR-09-0140028 of violating
the conditions of his release in the first degree, and
was sentenced to a three year term of incarceration,
execution suspended after six months, followed by a
three year term of probation. In 2013, the defendant
was convicted under docket number K21N-CR-10-
0126054 of sexual assault in the fourth degree and risk
of injury to a child, and was sentenced to an eight year
term of incarceration, execution suspended, followed
by a three year term of probation. Among the customary
conditions of probation in all three matters was the
condition that the defendant not violate any criminal
law of this state. Among the conditions of probation
under docket number K21N-CR-10-0126054 was the con-
dition that the defendant undergo sex offender evalua-
tion and treatment.
In 2013, while the defendant was serving a period of
probation under all three of the docket numbers set
forth in the preceding paragraph, he was charged under
docket number K21N-CR-13-0121382 with sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (2). In connection with the alleged
criminal conduct underlying that charge, which alleg-
edly occurred on May 10, 2013, the defendant was
charged under § 53a-32 with violating his probation in
all three cases under which he was serving probation.
The state’s theory of the case was that the defendant,
while residing at a residential sex offender treatment
center, touched an intimate part of a fellow resident,
D.S.,1 for sexual gratification. The court held a hearing
related to the charges in all four cases on March 5 and
6, 2014. On March 7, 2014, the court orally delivered
its decision. The court found the defendant not guilty of
sexual assault in the fourth degree. The court, however,
found that the defendant violated his probation in each
of the three violation of probation cases, and in each
of these cases imposed a sentence of fifteen months of
incarceration, to run concurrently with the sentence
imposed in the other two cases. The court ordered that
probation continue in accordance with any terms and
conditions that had been imposed previously.
In its ruling, the court stated in relevant part: ‘‘So,
I’ve heard oral arguments and all the evidence on, both,
the three violations of probation and the sexual assault
in the fourth degree, and I’m prepared to make my
ruling. . . .
‘‘I’ve considered the testimony and the arguments
carefully, and what I say next is going to apply, both,
to the criminal cases and the cases for violation of pro-
bation.
‘‘First, I hold that for me to find [the defendant] in
violation of his probation, the state must prove by a
preponderance of the evidence that [the defendant]
committed the underlying offense. In other words, that
he violated his condition of his probation that he obey
the law. Or, in the matter ending [in] 6054, that he
failed to attend and cooperate with counseling and sex
offender treatment.
‘‘For me to find [the defendant] guilty of sexual
assault in the fourth degree, the state must prove that
he committed this offense beyond a reasonable doubt.
To prove the underlying offense of sexual assault in
the fourth degree, § 53a-73a requires the state to prove
that [the defendant] intentionally subjected another per-
son [to] sexual contact for the purpose of sexual gratifi-
cation without the person’s consent. Under § 53a-65,
sexual contact includes contact with the intimate parts
of a person for the purpose of sexual gratification; the
intimate parts include the buttocks. Sexual contact also
includes contact through clothing. Consent is judged
based on whether a reasonable person, under all of
the circumstances, would believe that the complainant
affirmatively consented to the contact. Affirmative con-
sent can be by words or by actions. . . .
***
‘‘It was a condition of all three probations that he
not violate the law. He signed a document agreeing to
these conditions in all three cases.
‘‘[The defendant] and D.S., the complainant, were
both adults. They were both convicted sex offenders.
At the time of the incident on May 10, 2013, they were
residents of the January Center, a facility for the hous-
ing and treatment of convicted sex offenders. As of May
10, [the defendant] and D.S. knew each other since
about the time of [the defendant’s] arrival at the January
Center on April 23, a period of about two weeks and
a couple days. They had a friendly relationship.
‘‘[The defendant] was complying with the January
Center rules; D.S. was not. [The defendant] had touched
D.S. and D.S. had touched [the defendant], including
once on the morning of May 10, 2013, when D.S. put
his hands on [the defendant’s] shoulder. All of the touch-
ing was confined to the shoulders, hands and arms.
None of the touching was done in a private place, or
a bathroom, or a bedroom . . . or a common room for
watching television or an exercise area. Prior to the
incident at issue, none of the touching was sexual. Both
[the defendant] and D.S. agreed on that point.
‘‘Prior to the incident that led to [the defendant’s]
arrest, D.S. neither complained to the staff nor asked
[the defendant] to stop engaging in any form of touch-
ing. On May 10, 2013, in the January Center bathroom,
[the defendant] touched D.S. on the buttocks. D.S. said
that it was a grab; [the defendant] said it was a pat, but
it doesn’t matter here either way because I find that
the contact was for sexual gratification. [The defendant]
said so. [The defendant] made it clear that what he was
attempting to do was to suggest a romantic relationship
to D.S. and this was his attempt to do that. It was
not a playful pat that would take place in a sporting
environment or any other type of thing. I find it was
for sexual gratification.
‘‘After the contact, D.S. told [the defendant] some-
thing to indicate that the contact was unwelcome, such
as, don’t touch me, or words to that affect. I realize
there’s some dispute over the exact wording of what
was said, but the wording that matters to me was, it was
an indication of not to do that again. [The defendant] did
not touch him again.
‘‘I conclude that [the defendant] violated his three
probations because it’s more likely than not, in my view,
that [the defendant] touched D.S. without his consent
and, in the 6054 matter, that he therefore did not cooper-
ate with the terms and conditions of his treatment
and counseling.
‘‘Conduct signaling consent can be a subtle thing.
But, both agree that the earlier touching was not sexual.
Given that the touching took place in the common areas
of the facility and based upon the body parts that were
touched, I do not find that these contacts, on balance, to
be sufficient affirmative invitation to touch an intimate
body part. I paid particular attention to the demeanor
in my view, the [credibility] of [the defendant] and D.S.
in judging this matter. [The defendant] strikes me as a
man who knows he went too far, or thinks it was okay
to try. D.S., on balance, appeared to have no feeling for
[the defendant] and that it is reasonably credible given
that there was a great gap in age between the two
of them.2
‘‘I find [the defendant] not guilty of sexual assault in
the fourth degree because I have reasonable doubts
about my conclusion that he touched D.S. without his
consent. I cannot ignore that these are two male sex
offenders locked in an all-male facility. Things happen
in such places that don’t ordinarily happen elsewhere
to reasonable persons. I [am a] reasonable person, and I
don’t think that anyone who heard the testimony would
likely be surprised to hear that this sort of thing goes
on in such places.
‘‘The court takes judicial notice from its dockets that
ordinary rules of polite behavior are often ignored in
prisons and prison-like facilities. In short, what might
not amount to consent elsewhere might be conceived
as an invitation in that particular time, place, or circum-
stance. A smile, a touch, and friendliness in such a place
might be perceived as inviting a physical inquiry seeking
an elevation of a relationship, or at least, a touch like
this one that might be, by prison standards, relatively
mild.
‘‘So, I can’t say, without a reasonable doubt, that
D.S.’s interactions with [the defendant] were not an
invitation in these circumstances or an invitation, spe-
cifically, of an intimate touch of this type. In reaching
my decision, I did not consider the [trial] testimony of
[Jane Coady, a therapist employed by the January Cen-
ter at the time of the events at issue]. I did not think
it shed any lights on the subject, for me, and so I don’t
have to rule on the [defendant’s objection concerning
the] legal standing of the therapist to testify. And the
reason for the disparate results finding that he violated
his probation and that he is not guilty of the crime of
sexual assault in the fourth degree is because of the
differing burdens of proof that apply. So, [although the
defendant] is not guilty of the criminal charge, I do find
him in violation of probation, and I’ll hear argument
concerning sentencing on the violations.’’ (Footnote
added.)
The defendant brought an appeal from the court’s
judgment in each of the violation of probation cases.
Later, absent objection, this court granted the defen-
dant’s motion to consolidate these appeals.
‘‘[U]nder § 53a-32, a probation revocation hearing has
two distinct components. . . . The trial court must
first conduct an adversarial evidentiary hearing to deter-
mine whether the defendant has in fact violated a condi-
tion of probation. . . . If the trial court determines that
the evidence has established a violation of a condition
of probation, then it proceeds to the second component
of probation revocation, the determination of whether
the defendant’s probationary status should be revoked.
On the basis of its consideration of the whole record,
the trial court may continue or revoke the sentence of
probation . . . and, if such sentence is revoked,
require the defendant to serve the sentence imposed or
impose any lesser sentence. . . . In making this second
determination, the trial court is vested with broad dis-
cretion. . . .
‘‘The standard of review in violation of probation
matters is well settled. To support a finding of probation
violation, the evidence must induce a reasonable belief
that it is more probable than not that the defendant has
violated a condition of his or her probation. . . . In
making its factual determination, the trial court is enti-
tled to draw reasonable and logical inferences from the
evidence. . . . This court may reverse the trial court’s
initial factual determination that a condition of proba-
tion has been violated only if we determine that such
a finding was clearly erroneous. . . . A finding of fact
is clearly erroneous when there is no evidence to sup-
port it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed. . . . In making this determina-
tion, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Citations omitted;
internal quotation marks omitted.) State v. Fowler, 102
Conn. App. 154, 165–66, 926 A.2d 672, cert. denied, 284
Conn. 922, 933 A.2d 725 (2007); see also State v. Maurice
M., 303 Conn. 18, 26–27, 31 A.3d 1063 (2011).
In finding by a preponderance of the evidence that
the defendant committed a criminal act by engaging in
conduct that constitutes the crime of sexual assault in
the fourth degree, the court found in relevant part that
he touched D.S. on his clothed buttocks for his sexual
gratification. Section 53a-73a (a) provides: ‘‘A person
is guilty of sexual assault in the fourth degree when
. . . (2) such person subjects another person to sexual
contact without such other person’s consent . . . .’’ As
relevant, General Statutes § 53a-65 (3) defines ‘‘ ‘[s]ex-
ual contact’ ’’ as ‘‘any contact with the intimate parts
of a person not married to the actor for the purpose of
sexual gratification of the actor . . . .’’ Section 53a-65
(8) defines ‘‘ ‘[i]ntimate parts’ ’’ to include ‘‘buttocks
. . . .’’
The defendant correctly acknowledges that because
the burden of proof applicable in a violation of proba-
tion hearing is less than that applicable in a criminal
prosecution, he has no basis in the law on which to
claim error in the court’s judgments arising from its
disparate findings in the criminal and probation cases.
Rather, the defendant raises a narrow claim that focuses
solely on the court’s finding that the touching at issue
in this case was for his sexual gratification. The defen-
dant does not challenge the court’s findings with regard
to any other aspect of the offense, such as that he made
contact with the intimate parts of D.S. or that D.S. did
not consent to such contact. In its decision, the court
stated in relevant part: ‘‘I find that the contact was
for sexual gratification. [The defendant] said so.’’ The
defendant argues that this subordinate finding of fact
was clearly erroneous because it did not have any sup-
port in the evidence. The defendant argues that, absent
this erroneous finding, the evidence did not otherwise
permit the court to infer reasonably that the touching
was for his sexual gratification. In this regard, the defen-
dant relies on the undisputed evidence that the touching
involved two adult males, the touching incident was
brief, D.S.’s buttocks were clothed, and this was not a
case involving the intentional touching of genitalia.
Also, in connection with this claim, the defendant
asserts that there was no evidence as to the sexual
orientation of either adult male involved.
Initially, we agree with the defendant that the court’s
subordinate finding, that the defendant had admitted
that the touching was for his sexual gratification, was
not supported by the evidence. We reach this determina-
tion because the court expressly stated that it would
not consider the only evidence that would have sup-
ported such a finding. The following additional proce-
dural facts are relevant here. At trial, D.S. testified about
the event at issue. In summary, he testified that the
defendant touched his clothed ‘‘butt’’ when both he and
the defendant were cleaning a bathroom at the January
Center, and that he did not consent to this touching.3
D.S. testified that he brushed the defendant’s hand
away, told the defendant not to touch him, walked out of
the bathroom, and reported the incident to staff shortly
after it occurred.
During the trial, the defendant moved in limine to
preclude any testimony concerning ‘‘any statements’’
made by the defendant to Coady, the defendant’s thera-
pist. The defendant based his motion on the existence
of a patient-therapist privilege that he had not waived.
After the state called Coady as a witness, the defen-
dant’s attorney raised the issue of admissibility covered
by the motion in limine. The court indicated that it
would permit inquiry of Coady and reserve ruling on
the motion. The court observed that, as trier of fact, it
would be able to disregard any testimony that it later
determined should be excluded under the rules of evi-
dence. After the court permitted counsel to voir dire
Coady, it stated that it understood the defendant’s argu-
ment concerning admissibility, which was based on the
absence of any signed waiver by the defendant, and
that it would reserve ruling on the motion.
During her subsequent trial testimony, Coady testi-
fied that, at the time of the incident underlying this
trial, she was employed as a therapist at the January
Center and that she provided therapy to both the defen-
dant and D.S. Coady testified that, in her capacity as a
therapist, she spoke with both the defendant and D.S.
about the touching incident that occurred on May 10,
2013. Relevant to these appeals, Coady testified that
D.S. told her that, while he was cleaning a bathroom
at the January Center on that date, the defendant
‘‘grabbed his clothed buttocks’’ and that D.S. did not
consent to this touching. Additionally, Coady testified
that the defendant told her that he touched D.S. on his
clothed buttocks and that ‘‘for three weeks prior, he
had been testing out D.S.’s interest level in having a
romantic, intimate relationship.’’
At the conclusion of Coady’s testimony, the court
stated in relevant part: ‘‘I don’t think that this testimony
is terribly important. . . . I see a picture from what
D.S. testified to . . . I think I understand the basic
claim here, which D.S. says that this touching happened
and that he didn’t consent. And [the defendant] suggests
that there was a whole context and background
[between himself and D.S.] that suggested that [D.S.]
did consent to it and therefore it’s not a violation of
the statute. If it’s not a violation of the statute, he didn’t
violate his probation. . . . I’ve heard [Coady’s] testi-
mony, now. . . . It doesn’t really add anything to what
I’ve already heard. I think the nub of the whole thing
turns on . . . any evidence that [the defendant would]
like to show that suggested from the totality of the
circumstances that there was consent. I don’t think
. . . [Coady’s] testimony would have any bearing on it,
and I’ll tell you right now that I’m prepared to ignore
it. So, what I’d rather do is, if [the defendant] . . .
wants to talk about the context and give this . . . issue
of consent [by D.S.], which is your defense, as I under-
stand it, let’s do that because I think it would be a more
constructive use of time.’’ The next day of trial, the
defendant’s attorney referred to Coady’s testimony in
the context of argument. The court reminded the defen-
dant’s attorney that it had ruled that it would not con-
sider Coady’s testimony. In its decision, the court stated
that it had not considered Coady’s testimony.
In these appeals, the state correctly recognizes that,
in response to the defendant’s challenge to the admissi-
bility of Coady’s testimony, the court stated that it
would not consider such testimony. Yet, contrary to its
representations, the court appears to have relied on
Coady’s testimony in finding facts despite stating in its
decision that it did not do so. The state argues that any
‘‘procedural’’ error that occurred in this regard should
not affect our consideration of Coady’s testimony in
determining the sufficiency of the evidence. Essentially,
the state argues that the court properly considered Coa-
dy’s testimony after it ‘‘[had] failed to explicitly rule on
the defendant’s motion’’ in limine. The state argues that
because the defendant has not raised any claim in these
appeals related to the admissibility of Coady’s testi-
mony, he has abandoned any claim concerning the
admissibility of this evidence.4
This argument is not compelling. It is clear from our
review of the trial transcripts that the court addressed
the defendant’s motion in limine and his related objec-
tions to Coady’s testimony by determining that Coady’s
testimony was not relevant to its analysis.5 Although
the court did not frame its ruling in the clearest legal
terms, it is undeniable that the court stated that it would
not consider her testimony. The defendant, reasonably
relying on those statements by the court, did not raise
any further objections to the admissibility of the testi-
mony at trial. It is wholly understandable that the defen-
dant, having obtained a ruling that obviated the need
to pursue the evidentiary objection set forth in his
motion in limine, has not raised in the present appeals
a claim of evidentiary error concerning the admissibility
of that testimony. Such a claim would have been rele-
vant to an evidentiary ruling that was not made at trial
and, thus, irrelevant to our assessment of the court’s
judgment. Our sufficiency of the evidence analysis is
confined to the evidence properly admitted at trial.
Because the trial court expressly excluded Coady’s tes-
timony from the evidence, it should not have considered
it in reaching its decision, and we do not consider it
here.
The defendant correctly argues that, absent Coady’s
testimony, there was no evidence upon which the court
reasonably could have found that he somehow had
admitted that his touching of D.S. was for his sexual
gratification. Neither party, however, suggests that this
determination alone warrants judgments of reversal.
The defendant analyzes the evidence in its entirety in
determining whether it supported a finding that the
touching was for his sexual gratification. He argues that
the court’s finding based on Coady’s testimony was
improper and that the sexual gratification element was
not otherwise proven. The state argues that, even absent
Coady’s testimony, the evidence amply supported the
court’s decision.
In other appeals involving civil matters, this court
has observed that an improper finding of fact by a trial
court does not automatically warrant a judgment of
reversal, but that an appellant must demonstrate that
such improper finding was not harmless in light of the
court’s other findings of fact. The test becomes whether
the improper finding undermines appellate confidence
in the court’s fact-finding process as a whole. This doc-
trine was set forth in DiNapoli v. Doudera, 28 Conn.
App. 108, 112, 609 A.2d 1061 (1992), in which this court,
having discussed the clearly erroneous standard of
review, stated: ‘‘Where . . . some of the facts found
are clearly erroneous and others are supported by the
evidence, we must examine the clearly erroneous find-
ings to see whether they were harmless, not only in
isolation, but also taken as a whole. . . . If, when taken
as a whole, they undermine appellate confidence in the
court’s fact finding process, a new hearing is required.’’
(Citation omitted; internal quotation marks omitted.)
This doctrine has been followed in numerous decisions
of this court. See, e.g., LeBlanc v. New England Race-
way, LLC, 116 Conn. App. 267, 281, 976 A.2d 750 (2009);
Doody v. Doody, 99 Conn. App. 512, 518–19, 914 A.2d
1058 (2007); New Haven v. Tuchmann, 93 Conn. App.
787, 795, 890 A.2d 664, cert. denied, 278 Conn. 903, 896
A.2d 104 (2006); Lambert v. Donahue, 78 Conn. App.
493, 507, 827 A.2d 729 (2003). We see no reason to depart
from this precedent in these appeals from judgments
rendered in violation of probation proceedings.6
Our careful examination of the court’s decision
reflects that the court based its finding that the defen-
dant touched D.S. for his sexual gratification on several
subordinate findings of fact; it was not based solely on
the erroneous subordinate finding related to Coady’s
testimony. Because, for the reasons that follow, we
conclude that the court’s other findings of fact were
supported by the evidence, we are not persuaded that
the court’s error undermines confidence in its fact-find-
ing process or that its error affected the result.
As stated previously in this opinion, the defendant
does not challenge the court’s finding that he touched
an intimate part of D.S. when both he and D.S. were
alone in a bathroom in the January Center on May 10,
2013. The defendant testified that he and D.S. were fully
dressed and cleaning the bathroom, at which time he
patted D.S. on his left buttock. D.S. testified that, during
the incident in question, he walked by the defendant
in the bathroom and that the defendant put his hand
on his ‘‘butt.’’ It was undisputed that the defendant and
D.S. were residing in January Center because of their
criminal history involving crimes of a sexual nature, and
the court was free to draw inferences from these facts.7
In evaluating the incident in the bathroom on May
10, 2013, the court repeatedly referred to the nature of
the relationship that existed between the defendant and
D.S. prior to that date. The defendant testified that his
prior interactions with D.S. involved D.S. touching his
arm, touching his shoulders, and offering him support-
ive words such as, ‘‘I’ll always be there for you . . . .’’
The defendant testified that he believed that his rapport
with D.S. included consent to touch his buttocks,
though the defendant believed that this touching was
not sexual in nature. The defendant testified that he
thought that he and D.S. were ‘‘joking with each other,
and I thought there was a rapport between us.’’
D.S. testified that, prior to this incident, he was not in
a romantic relationship with the defendant. Consistent
with the defendant’s testimony, he stated that he had
touched the defendant’s shoulders on the morning of
May 10, 2013. Contrary to the defendant’s testimony,
however, D.S. testified that, prior to this incident, he
had not touched the defendant on the arm and that he
had not told the defendant that he would always be
there for him. D.S. testified that, on May 9, 2013, the
day prior to the incident in question, he had brought
to the attention of the staff of the January Center his
concern that the defendant had been making sexual
advances toward him. D.S. testified that he had interpre-
ted prior interactions between himself and the defen-
dant as reflecting the defendant’s sexual attraction
toward him, but that he did not believe that the defen-
dant would take it to ‘‘another level’’ in the manner that
he did by touching his buttocks in the bathroom.
The court, in finding that the touching was for sexual
gratification, stated that ‘‘[i]t was not a playful pat that
would take place in a sporting environment or any other
type of thing.’’ Also, the court stated: ‘‘[The defendant]
strikes me as a man who knows he went too far, or
thinks it was okay to try. D.S., on balance, appeared to
have no feeling for [the defendant].’’
In making its findings as to the intent, if any, behind
the touching, the court was free to make reasonable
inferences from the evidence before it. ‘‘It is well estab-
lished that the question of intent is purely a question
of fact. . . . Intent may be, and usually is, inferred from
the defendant’s verbal or physical conduct. . . . Intent
may also be inferred from the surrounding circum-
stances. . . . The use of inferences based on circum-
stantial evidence is necessary because direct evidence
of the accused’s state of mind is rarely available.’’ (Inter-
nal quotation marks omitted.) State v. Salaman, 97
Conn. App. 670, 677, 905 A.2d 739, cert. denied, 280
Conn. 942, 912 A.2d 478 (2006).
Viewed in its entirety, the evidence, including the
immediate circumstances surrounding the touching as
well as the prior relationship between the defendant
and D.S., supported the court’s inference that the touch-
ing was for sexual gratification. The defendant touched
an intimate part of D.S. while both he and D.S. were
alone cleaning the bathroom in the residential facility
in which they were receiving treatment for their histor-
ies of crimes of a sexual nature. The defendant was
unable to set forth a reasonable explanation for this
conduct, and it was not unreasonable for the court to
infer that, given the circumstances, which did not
involve a sporting or similar type of event, the defen-
dant’s touching of D.S.’s intimate parts was motivated
by sexual gratification.
The defendant suggests that such a finding concern-
ing sexual gratification was inconsistent with the undis-
puted evidence that the touching involved two adult
males, the touching incident was brief, D.S.’s buttocks
were clothed, and this was not a case involving the
intentional touching of genitalia. We are not persuaded
that any of these facts, whether viewed individually or
in their entirety, call into doubt the reasonableness of
the court’s inference that the touching was for sexual
gratification. We observe that sexual contact may occur
through clothing. See, e.g., State v. John O., 137 Conn.
App. 152, 158, 47 A.3d 905 (‘‘[s]exual contact with a
victim’s intimate parts can be indirect and through
clothing as long as it occurs for the purpose of the
actor’s own sexual gratification or for the purpose of
degrading or humiliating the victim’’), cert. denied, 307
Conn. 913, 53 A.3d 997 (2012); State v. Alberto M., 120
Conn. App. 104, 111, 991 A.2d 578 (2010) (in ‘‘determin-
ing whether sexual contact occurred, it is of no conse-
quence . . . that the contact occurred through the
victim’s clothing rather than against her bare skin’’).
Additionally, we observe that sexual contact is not lim-
ited to contact with genitalia. Section 53a-65 (3), defines
‘‘sexual contact’’ as any prohibited contact with ‘‘inti-
mate parts,’’ including buttocks, as defined in § 53a-
65 (8).
The defendant also asserts that there was no evidence
as to the sexual orientation of either adult male
involved. This assertion is inconsistent with the testi-
mony of D.S. that he had interpreted his prior interac-
tions with the defendant, which included touching, as
being sexual in nature. Also, the court reasonably could
have interpreted the defendant’s testimony about his
interactions with D.S. prior to the incident, which he
described as involving both touching and reassuring
words, as evidence—albeit not compelling—that the
defendant sought a more intimate relationship with D.S.
Viewed in light of these background facts, including
the court’s finding that D.S. did not consent to sexual
contact, the court’s additional finding—that the inci-
dent in the bathroom was the defendant’s attempt to
take this relationship ‘‘too far’’—was not unreasonable,
and it supported the court’s determination that the
defendant touched D.S. for his sexual gratification.
For the foregoing reasons, we conclude that, absent
any consideration of Coady’s testimony, the evidence
supported the court’s finding that the defendant
touched D.S. for his sexual gratification. Accordingly,
we reject the defendant’s claim that the court’s finding
that he violated his probation by unlawfully touching
D.S. was clearly erroneous.
The judgments are affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
Evidence that the defendant was born in 1954 and that D.S. was born
in 1989 was not in dispute at trial.
3
During his direct examination, D.S. used the word ‘‘butt’’ in describing
the part of his body that the defendant had touched. During cross-examina-
tion, the following colloquy occurred:
‘‘Q. Okay. Now, right after my client allegedly grabbed your butt, and I
guess for court purposes I’ll be specific, are we talking about what we call
the buttocks, the rear end?
‘‘A. Correct.
‘‘Q. That was one grab?
‘‘A. Correct.’’
4
Consistent with its argument, the state relies on State v. Carey, 228
Conn. 487, 498, 636 A.2d 840 (1994), for the proposition that, even if the
defendant was able to succeed in demonstrating that reversible error
occurred in connection with the improper admission of Coady’s testimony,
he would be entitled to a new hearing, but not a judgment of acquittal.
5
Although Coady’s testimony appears to have been relevant to the central
issue in this case, consent, we need not address the propriety of the court’s
determination in this regard.
6
This court has observed that ‘‘a violation of probation proceeding is not
a criminal proceeding but is instead more akin to a civil proceeding . . . .’’
State v. Lantz, 120 Conn. App. 817, 822, 993 A.2d 1013 (2010).
7
D.S. testified that he had been convicted of conspiracy to commit robbery
in the first degree and sexual assault in the second degree. The defendant
testified that, in two separate cases, he had been convicted of risk of injury to
a child, and that he had been convicted of sexual assault in the fourth degree.