State v. Prosper ( 2015 )

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STATE OF CONNECTICUT v. HILARY I. PROSPER
(AC 35943)
Sheldon, Keller and Norcott, Js.
Argued May 20—officially released September 22, 2015
(Appeal from Superior Court, judicial district of New
Haven, O’Keefe, J.)
Bradford Barneys, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Stacey M. Miranda, senior assistant
state’s attorney, for the appellee (state).
Opinion
NORCOTT, J. The defendant, Hilary I. Prosper,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2)
and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). On appeal, the defen-
dant claims that (1) the state produced insufficient evi-
dence to sustain his conviction on any of the charges,
and (2) the court improperly permitted a witness to
testify as both a fact witness and an expert witness.
We affirm the judgment of conviction.
The jury reasonably could have found the following
facts. In June, 2009, when the victim, A,1 was twelve
years old, she went to her grandparents’ house after
school on days when both of her parents were working.
Her grandparents lived in the second-floor apartment
of a two-family house. A’s aunt and her aunt’s husband,
the defendant, lived in the first-floor apartment with
their child, J, who was three years old. Although A went
to visit her grandparents on the second floor, she also
went downstairs to the first-floor apartment to visit J
and to play on the computer. The defendant was usually
present when A was downstairs. During these visits,
her aunt was usually at work.
On one occasion in June, 2009, A was playing with
J in the living room downstairs when the defendant
told her ‘‘to come see something.’’ She went into the
room where the defendant was on the computer and
saw that the defendant was viewing a pornography web-
site with videos showing ‘‘[m]en and women doing
things, having sex.’’ She then walked out of the room.
The defendant did not say anything else to her, and she
did not say anything to him.
On another occasion in June, 2009, A was sitting at
the computer when the defendant got out of the shower
and came into the room, wearing only a towel. He made
a gesture with his hands that A did not understand and
asked her if she wanted ‘‘to join hands.’’ He then rubbed
her shoulders as she was sitting in the computer chair.
A felt ‘‘confused and weird’’ while the defendant was
rubbing her shoulders. She did not say anything to him
and walked out of the room.
A couple of weeks later, A was sitting at the computer
when the defendant again got out of the shower and
came into the room, wearing only a towel. He rubbed
A’s shoulders and then moved his hands down the front
of her chest to touch her breasts. He squeezed both of
her breasts at the same time. A stood up and walked
out of the room. As she was walking away, the defen-
dant asked, ‘‘Can you handle it?’’ He also told her not
to tell anyone what had happened, or she would get
in trouble.
On yet another occasion in June, 2009, A was sitting
at the computer when the defendant came into the
room, wearing only a towel, and said something to her
‘‘that was weird.’’ She went into the living room and
sat on the couch. The defendant stood in front of her
and pushed her down by the shoulders onto the couch
so that she was lying on her back. He pulled her shorts
and underwear down to her ankles. He then removed
the towel, and A saw that he was wearing a condom
on his penis. He lay on top of her, opened her legs by
pressing on her inner thighs, and inserted his penis into
her vagina. This caused A pain. The defendant moved
his penis in and out of her vagina. He stopped when A
pushed against his chest, and he got off the couch.
A went upstairs to the bathroom in her grandparents’
apartment because she ‘‘didn’t want to talk to anybody.’’
She noticed that she was bleeding from her vagina, and
she wiped up the blood with toilet paper. She did not
tell anyone what had happened because she was
‘‘scared to.’’
A first told one of her cousins about these series of
events with the defendant, but she only said that the
defendant had touched her. She then told another
cousin that the defendant had touched her. She fully
disclosed the defendant’s conduct toward her in a letter
to another cousin, who gave the letter to A’s parents.
On July 31, 2009, Theresa Montelli, a medical social
worker at Yale New Haven Hospital’s Child Sexual
Abuse Evaluation Clinic (clinic), conducted a forensic
interview with A. A did not tell Montelli everything
about the defendant’s conduct. On December 1, 2009,
Montelli conducted a second forensic interview with
A. During the second interview, A told Montelli: ‘‘My
uncle raped me.’’ Both forensic interviews were video-
taped and shown to the jury at trial. On the same day as
the second forensic interview, A underwent a medical
examination by Janet Murphy, a pediatric nurse prac-
titioner at the clinic. Murphy concluded that A had a
‘‘normal exam.’’ Murphy did not find ‘‘any kind of mark
or sign . . . from any kind of injury.’’
The defendant thereafter was arrested and charged
with one count of sexual assault in the first degree and
two counts of risk of injury to a child. He was tried
before a jury and found guilty on all three charges. The
court sentenced him to a total effective sentence of ten
years incarceration, followed by fifteen years of special
parole. This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the state produced
insufficient evidence to sustain his conviction on any
of the charges. With respect to the charge of sexual
assault in the first degree, the defendant argues that
there was insufficient evidence that he was more than
two years older than A at the time he had sexual inter-
course with her. With respect to all the charges, the
defendant argues that there was insufficient evidence
that he engaged in the prohibited conduct alleged by
the state.
A
We first address the defendant’s claim that there was
insufficient evidence to sustain his conviction for sexual
assault in the first degree because the state failed to
prove beyond a reasonable doubt that he was more
than two years older than A. Specifically, the defendant
argues that the state failed to present any evidence as
to the defendant’s age in its case-in-chief. The defendant
further argues that the court violated his rights to due
process and a fair trial by permitting the state to reopen
its case and to present evidence of his age to the jury.
We are not persuaded.
General Statutes § 53a-70 (a) (2) provides in relevant
part: ‘‘A person is guilty of sexual assault in the first
degree when such person . . . engages in sexual inter-
course 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 . . . .’’ At trial, after
the state presented its case-in-chief, the defendant
moved for a judgment of acquittal on the ground that
the state had failed to present any evidence as to the
defendant’s age. The state conceded that it had failed
to present direct evidence of the defendant’s age and
requested that the court allow it to reopen its case-in-
chief. The court found that the state had presented
sufficient circumstantial evidence for the jury to con-
clude that the defendant was more than two years older
than A at the time he had sexual intercourse with her.
The court found on that basis that allowing the state
to reopen its case would not prejudice the defendant.
The court stated: ‘‘Well, I don’t see any problem
reopening the case. I don’t agree that there’s no evi-
dence of his age. I mean, circumstantially he’s the
brother of the complainant’s mother. He has a—he has
a three year old child—what was a three year old child
at the time of the complaint, and if he—if he wasn’t
more than two years old—older than the complainant,
he would have been making babies when he was eleven
[years old] or something, I don’t know. It’s—There’s no
prejudice to the defendant to—for someone to say—
take the stand and say that he’s, I’m guessing, forty
years old.’’ The court characterized the state’s failure
to present direct evidence of the defendant’s age as ‘‘a
simple oversight’’ and, over the defendant’s objection,
permitted the state to reopen its case. The state then
presented evidence of the defendant’s date of birth to
the jury.
To address this claim, we must first determine
whether the court properly permitted the state to
reopen its case. ‘‘The decision to reopen a criminal case
to add further testimony lies within the sound discretion
of the trial court. . . . The trial judge’s discretion,
which is a legal discretion, should be exercised in con-
formity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of sub-
stantial justice. . . . The purpose of this discretion is
to preserve the fundamental integrity of the trial’s truth-
finding function. . . . The trial court’s discretion will
be reversed only upon manifest abuse of discretion or
injustice.’’ (Citations omitted; internal quotation marks
omitted.) State v. Zoravali, 34 Conn. App. 428, 442,
641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d
921 (1994).
‘‘[I]f a trial court feels that, by inadvertence or mis-
take, there has been a failure to introduce available
evidence upon a material issue in the case of such a
nature that in its absence there is a serious danger of
a miscarriage of justice, it may properly permit that
evidence to be introduced at any time before the case
has been decided.’’ (Internal quotation marks omitted.)
Id., 441. ‘‘If the trial court finds that inadvertence or
some other compelling circumstance . . . justifies a
reopening and no substantial prejudice will occur, it is
vested with the discretion to reopen the case.’’ (Internal
quotation marks omitted.) State v. Anderson, 209 Conn.
622, 634–35, 553 A.2d 589 (1989).
In the present case, the court found that the state’s
failure to present direct evidence of the defendant’s age
was inadvertent—‘‘a simple oversight’’—and that the
defendant would not be prejudiced if the state reopened
its case. Under the circumstances, we cannot say that
the court’s decision to permit the state to reopen its
case was a manifest abuse of discretion. Accordingly,
we conclude that the court properly permitted the state
to reopen its case.
The defendant argues that our Supreme Court’s deci-
sion in State v. Allen, 205 Conn. 370, 385, 533 A.2d 559
(1987), controls this case. In Allen, our Supreme Court
held that, ‘‘when the state has failed to make out a
prima facie case because insufficient evidence has been
introduced concerning an essential element of a crime
and the defendant has specifically identified this eviden-
tiary gap in a motion for judgment of acquittal, it is an
abuse of the trial court’s discretion to permit a
reopening of the case to supply the missing evidence.’’
Id. We agree with the defendant that he identified an
alleged evidentiary gap in the state’s case in his motion
for a judgment of acquittal, namely, that the state had
failed to present any direct evidence that the defendant
was more than two years older than A at the time he
had sexual intercourse with her. We also recognize that
an age difference of more than two years between the
complainant and the perpetrator of the sexual assault
is an essential element of § 53a-70 (a) (2). We conclude,
however, that our Supreme Court’s holding in Allen
does not control this case because the state successfully
presented a prima facie case against the defendant on
the sexual assault charge, including the fact that he was
more than two years older than A when he had sexual
intercourse with her.
The court found that the state had presented suffi-
cient circumstantial evidence for the jury to find that
the defendant was more than two years older than A.
We agree. ‘‘In reviewing the sufficiency of the evidence
to support a criminal conviction we apply a two-part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [finder of fact]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Calabrese, 279 Conn. 393, 402–403, 902 A.2d 1044 (2006).
In June, 2009, A was twelve years old. Therefore, in
order to convict the defendant of sexual assault in the
first degree pursuant to § 53a-70 (a) (2), the state was
required to prove beyond a reasonable doubt that the
defendant was more than fourteen years old when he
had sexual intercourse with A. In its case-in-chief, the
state presented evidence that the defendant was mar-
ried and that he was the father of a three year old child
at that time. The jury also had the opportunity to view
the defendant, who was present in the courtroom during
the trial. See State v. Hollby, 59 Conn. App. 737, 742,
757 A.2d 1250 (jury’s opportunity to view defendant
at trial was factor in determining whether there was
sufficient evidence for jury to conclude defendant was
more than two years older than victim at time of sexual
assault), cert. denied, 254 Conn. 947, 762 A.2d 905
(2000). The trial occurred almost four years after the
sexual assault. If the defendant had not been more than
two years older than A at the time of the assault, he
would have been no more than eighteen years old at
the time of trial. When the jury viewed him at trial, he
was forty-three years old.
‘‘The jury is entitled to draw reasonable and logical
inferences from the evidence. [T]he jury’s function is
to draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . [I]n considering the evidence intro-
duced in a case, [j]uries are not required to leave com-
mon sense at the courtroom door . . . nor are they
expected to lay aside matters of common knowledge
or their own observation and experience of the affairs
of life, but, on the contrary, to apply them to the evi-
dence or facts in hand, to the end that their action may
be intelligent and their conclusions correct.’’ (Citation
omitted; internal quotation marks omitted.) Id., 743.
In light of the evidence presented, it was reasonable
for the jury to conclude that the defendant, who was
both married and the father of a three year old child,
was more than fourteen years old at the time he had
sexual intercourse with A. It was also within the jury’s
purview to observe the forty-three year old defendant
at trial and to determine that, at that time, he was more
than eighteen years old. We, therefore, conclude that
the state presented a prima facie case that the defendant
was more than two years older than A at the time he had
sexual intercourse with her. Accordingly, our Supreme
Court’s decision in Allen does not control this issue, and
the trial court properly permitted the state to reopen its
case to present further evidence of the defendant’s age
to the jury. We, therefore, further conclude that the
state presented sufficient evidence of the defendant’s
age to sustain his conviction for sexual assault in the
first degree.
B
We next address the defendant’s claim that, with
respect to all the charges against him, the state pro-
duced insufficient evidence that he engaged in the pro-
hibited conduct. Specifically, the defendant argues that
there was insufficient evidence to support the state’s
allegations that he (1) engaged in sexual intercourse
with A, (2) had contact with his penis in a sexual and
indecent manner with A, and (3) had contact with the
breasts and inner thigh of A in an indecent manner. The
defendant further argues that the evidence presented by
the state, in the form of A’s testimony, was ‘‘inconsistent
and contradictory.’’ In response, the state argues that
the defendant’s claim merely challenges the jury’s deter-
mination of A’s credibility and is therefore without
merit. We agree with the state.
‘‘It is the function of the jury to consider the evidence
and to judge the credibility of witnesses.’’ State v. Hoo-
ver, 54 Conn. App. 773, 777, 738 A.2d 685 (1999). ‘‘We
assume that the jury credited the evidence that supports
the conviction if it could reasonably have done so. Ques-
tions of whether to believe or to disbelieve a competent
witness are beyond our review. As a reviewing court,
we may not retry the case or pass on the credibility of
witnesses. . . . We must defer to the trier of fact’s
assessment of the credibility of the witnesses that is
made on the basis of its firsthand observation of their
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) State v. Osoria, 86 Conn. App. 507,
514–15, 861 A.2d 1207 (2004), cert. denied, 273 Conn.
910, 870 A.2d 1082 (2005).
The jury found the defendant guilty of one count of
sexual assault in the first degree in violation of § 53a-
70 (a) (2). Section 53a-70 (a) (2) provides in relevant
part: ‘‘A person is guilty of sexual assault in the first
degree when such person . . . engages in sexual inter-
course 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 . . . .’’ General Stat-
utes § 53a-65 (2) defines sexual intercourse in relevant
part as ‘‘vaginal intercourse, anal intercourse, fellatio
or cunnilingus between persons regardless of sex. . . .
Penetration, however slight, is sufficient to complete
vaginal intercourse . . . .’’ A testified before the jury
that the defendant inserted his penis into her vagina
and that afterward she bled from her vagina.
The jury also found the defendant guilty of two counts
of risk of injury to a child in violation of § 53-21 (a) (2).
Pursuant to § 53-21 (a) (2), a person is guilty to risk of
injury to a child if he ‘‘has contact with the intimate
parts, as defined in section 53a-65, of a child under the
age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such
person, in a sexual and indecent manner likely to impair
the health or morals of such child . . . .’’ Section 53a-
65 (8) defines intimate parts as ‘‘the genital area or
any substance emitted therefrom, groin, anus or any
substance emitted therefrom, inner thighs, buttocks or
breasts.’’ In the second and third counts of the substi-
tute information, the state alleged that the defendant
‘‘subjected A . . . to contact with his intimate parts
(to wit: his penis), in a sexual and indecent manner’’
and that he also ‘‘had contact with the intimate parts,
(to wit: the breasts and inner thigh), of A . . . in a
sexual and indecent manner . . . .’’ A testified before
the jury that, on one occasion, the defendant squeezed
her breasts and that, on another occasion, he touched
her inner thighs to open her legs so he could insert his
penis into her vagina.
The jury credited A’s testimony about the defendant’s
conduct when it found the defendant guilty of one count
of sexual assault in the first degree and two counts of
risk of injury to a child, and we defer to its assessment
of her credibility. State v. Osoria, supra, 86 Conn. App.
515. ‘‘The credited testimony of even a single witness
may be sufficient to sustain a defendant’s conviction.’’
State v. Wilder, 128 Conn. App. 750, 764, 17 A.3d 1116,
cert. denied, 301 Conn. 934, 23 A.3d 730 (2011); see also
State v. Whitaker, 215 Conn. 739, 757 n.18, 578 A.2d 1031
(1990). We, therefore, conclude that the state presented
sufficient evidence to sustain the defendant’s convic-
tion on all the charges.
II
The defendant next makes a number of evidentiary
claims related to the testimony of Murphy, the pediatric
nurse practitioner who conducted A’s medical examina-
tion. He argues that the court abused its discretion and,
alternatively, committed plain error when it permitted
Murphy to testify as both a fact witness and an expert
witness. The state argues that the defendant’s eviden-
tiary claims are not reviewable because they are inade-
quately briefed. We agree.
‘‘[W]e are not required to review claims that are inade-
quately briefed. . . . We consistently have held that
[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed.
. . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of
the case and the law cited.’’ (Internal quotation marks
omitted.) State v. Claudio C., 125 Conn. App. 588, 600,
11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12
A.3d 1005 (2011).
It is unclear from the defendant’s appellate brief what
his evidentiary claims actually are. He provides only
bare legal arguments without connecting them to the
facts of the case. Specifically, he challenges Murphy’s
testimony without identifying the portions of her testi-
mony that, he argues, were improperly admitted. ‘‘It is
not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel’s
work, create the ossature for the argument, and put
flesh on its bones.’’ (Internal quotation marks omitted.)
State v. Diaz, 94 Conn. App. 582, 593, 893 A.2d 495,
cert. denied, 280 Conn. 901, 907 A.2d 91 (2006). We
conclude that the defendant’s evidentiary claims are
inadequately briefed, and, accordingly, we decline to
review them.
The judgment is 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.