State v. Davis , 180 Conn. App. 799 ( 2018 )

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STATE OF CONNECTICUT v. JARAH MICAH DAVIS
(AC 40232)
Alvord, Prescott and Beach, Js.
Syllabus
Convicted of the crimes of sexual assault in the second degree and delivery of
alcohol to a minor, the defendant appealed to this court. The defendant’s
conviction stemmed from his alleged sexual assault of the sixteen year
old victim, M, while she was heavily intoxicated. At trial, the defendant
admitted that he had sexual intercourse with M but maintained she had
consented to the encounter. Five days before jury selection began, the
state, which initially had charged the defendant with sexual assault in
the first degree and delivery of alcohol to a minor, filed a substitute
information adding an additional count of sexual assault in the second
degree. The defendant filed a motion to dismiss the count of sexual
assault in the second degree, which the court denied. On appeal, the
defendant claimed, inter alia, that the evidence was insufficient to prove
beyond a reasonable doubt that M was physically helpless as defined
by statute (§ 53a-65 [6]) for a conviction of sexual assault in the second
degree (§ 53a-71 [a] [3]). Held:
1. The evidence admitted at trial was sufficient to prove beyond a reasonable
doubt that the defendant committed sexual assault in the second degree,
as it was sufficient to prove beyond a reasonable doubt that M was
rendered physically helpless by way of intoxication: M’s testimony that
she could not physically or verbally communicate her lack of consent
during the sexual intercourse due to her intoxication was sufficient to
prove that she was physically helpless, and the defendant’s assertion
that M’s ability to communicate her lack of consent at one point during
the sexual assault precluded the possibility that she later became physi-
cally helpless was unpersuasive, as § 53a-71 (a) (3) does not impose the
requirement that the victim be physically helpless during the entirety
of the sexual assault and sexual assault in the second degree occurs
when an individual who was able to communicate her consent or lack
thereof at the beginning of the sexual encounter later becomes unable
to do so and the defendant continues to engage that person in sexual
activity; moreover, even though the defendant attempted to portray his
conduct with respect to M as one continuous alleged assault, case law
instructs that his various conduct may properly be treated as distinct
acts and punished as separate crimes.
2. The trial court did not abuse its discretion in denying the defendant’s
motion to dismiss the count of the substitute information charging him
with sexual assault in the second degree:
a. The state’s decision to charge the defendant with sexual assault in the
first and second degree did not prevent the defendant from presenting
a defense; the defendant’s claim that an information which charges two
or more separate offenses in the alternative is fatally defective because
of its failure adequately to apprise the defendant of the specific charge
against him was unavailing, as the state did not charge the defendant
with two or more offenses in the alternative, the substitute information
charged each offense in a separate count and made clear that the state
intended to pursue a conviction for both, and the state’s method of
charging did not force the defendant to take alternative factual positions
at trial or prevent him from presenting a defense.
b. The defendant could not prevail on his claim that the timing of the
state’s filing of the substitute information violated his substantive rights;
the state properly relied on the applicable rule of practice (§ 36-17) to
file a substitute information prior to trial, to the extent that the defendant
claimed that he was prejudiced by the state’s filing of the substitute
information because he did not have time to hire an expert, he should
have requested a continuance, and the state, by adding the charge of
sexual assault in the second degree, did not substitute a theory of
liability but, rather, added one based on facts that were contained in
the defendant’s arrest warrant and known to him throughout the entirety
of the proceedings.
Argued January 16—officially released April 10, 2018
Procedural History
Substitute information, charging the defendant with
the crimes of sexual assault in the first degree, sexual
assault in the second degree, and of delivery of alcohol
to a minor, brought to the Superior Court in the judicial
district of New London and tried to a jury before the
court, Jongbloed, J.; verdict of guilty of sexual assault
in the second degree and delivery of alcohol to a minor;
thereafter, the court denied the defendant’s motion for
a judgment of acquittal and rendered judgment in accor-
dance with the verdict, from which the defendant
appealed to this court. Affirmed.
Bryan P. Fiengo, for the appellant (defendant).
Theresa Anne Ferryman, senior assistant state’s
attorney, with whom was Michael Regan, state’s attor-
ney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Jarah Micah Davis,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (3)
and one count of delivery of alcohol to a minor in
violation of General Statutes § 30-86 (b) (2).1 On appeal,
the defendant claims that (1) the evidence admitted at
trial was not sufficient to prove beyond a reasonable
doubt that the alleged victim was physically helpless
within the meaning of General Statutes § 53a-65 (6) as
required for a conviction of sexual assault in the second
degree, and (2) the trial court improperly denied his
pretrial motion to dismiss the second count of the
state’s substitute information charging him with sexual
assault in the second degree. We disagree and, accord-
ingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On May 22, 2015, the victim, M,2 attended a gradua-
tion ceremony for her cousin. M was sixteen years old
at the time. Her cousin’s adult sister, K, and her hus-
band, the defendant, were also in attendance. Both K
and the defendant are approximately ten years older
than M.
After the ceremony, K’s parents hosted a graduation
party for friends and family at their home. M consumed
two beers at the party. At some point, K invited M to
stay the night at her house. M had never been to K’s
house before and thought it would be fun.
With her parents’ permission, M left the party with
K and the defendant around 11 p.m. After arriving at
the defendant’s house, K gave M some comfortable
clothes in which to change. K then opened a bottle of
wine and she and M both drank a glass.
Soon after, K showed M the finished basement. She
had converted it into a ‘‘man cave’’ for the defendant,
who was in the military, while he was deployed. The
room featured a bar stocked with various types of
hard alcohol.
For a few hours, M, K, and the defendant sat at the
bar in the finished basement talking and drinking. Dur-
ing this time, the defendant poured M multiple shots
of hard liquor, as well as a small glass of Dewars and
vodka. M soon became heavily intoxicated, which
resulted in her stumbling, slurring her words, and hav-
ing blurred vision.
At some point, K went upstairs to check on her young
son, leaving M and the defendant alone. When K did
not return, the defendant went upstairs and found her
sleeping in their bedroom.
After seeing that K was asleep, the defendant went
back downstairs, took M’s hands, and began dancing
with her. The two then began kissing. The defendant
then pushed M against the couch, put his hands down
her pants, and began digitally penetrating her vagina.
M repeatedly told the defendant to stop and attempted
to push him off of her. She had difficultly physically
resisting him, however, given her level of intoxication.
Shortly thereafter, M found herself lying on her back
on the floor of the basement.3 The defendant then lifted
M’s legs, took off her pants and underwear, and began
penetrating her vagina with his penis. At that point,
M was so intoxicated that she was unable to move
or speak.
After the assault, the next thing M recalled was that
she was on the couch in the defendant’s basement and
was vomiting on herself. The defendant took M upstairs,
undressed her, and put her in the shower. After show-
ering, M went to sleep in a spare bedroom.
The next morning, M was awakened by K, who had
laundered her dirty clothes. M did not tell K about
the assault because she was ‘‘still processing it and
was terrified.’’
Later that afternoon, while M and her mother were
driving home, M started crying and told her mother that
the defendant assaulted her. Her mother decided to
take M to the hospital, where she was evaluated for a
sexual assault and evidence was collected. DNA testing
of biological samples obtained from M confirmed that
the defendant had sexual intercourse with her.
Soon after, M reported the assault to the police. The
defendant subsequently was arrested and initially
charged with sexual assault in the first degree in viola-
tion of General Statutes § 53a-70 (a) (1) and delivery
of alcohol to a minor in violation of § 30-86 (b) (2). Five
days before jury selection was scheduled to begin, the
state filed a substitute information in which it addition-
ally charged the defendant, in a separate count, with
sexual assault in the second degree in violation of § 53a-
71 (a) (3).
The defendant was subsequently tried before a jury.
At trial, the defendant elected to testify and admitted
that he had sexual intercourse with M but maintained
that she had consented to it.
The jury acquitted the defendant of sexual assault in
the first degree but convicted him of sexual assault in
the second degree and delivery of alcohol to a minor. He
was sentenced to nine years’ incarceration, execution
suspended after fifty months, followed by ten years of
probation. Additional facts will be set forth as nec-
essary.
I
The defendant first claims that the evidence admitted
at trial was not sufficient to prove beyond a reasonable
doubt that M was physically helpless within the meaning
of § 53a-65 (6), as required to obtain a conviction of
sexual assault in the second degree. Specifically, the
defendant argues that M’s testimony that she repeatedly
had told the defendant that she did not consent to
the sexual conduct negates a conclusion that she was
physically helpless. We disagree.
The following additional facts and procedural history
are relevant to the resolution of the defendant’s claim.
At trial, M testified that she voluntarily danced with
and kissed the defendant. She further testified that,
after a few minutes of dancing and kissing, the defen-
dant forced his hands down her pants and began digi-
tally penetrating her. M resisted the defendant’s
advances by telling him ‘‘no’’ several times and
attempting to push him away.
After the defendant forced his hands down her pants,
M testified: ‘‘I remember being between the wall and
the couch. I was on my back laying down on the floor
on a rug and he was standing over me and I remember
him taking my pants and underwear off.’’ M did not,
however, remember how she went from standing to
lying on her back. Thereafter, M testified that the defen-
dant penetrated her vagina with his penis.
The following exchange then occurred between the
prosecutor and M:
‘‘Q. What happened after his penis entered your
vagina?
‘‘A. I was on the ground and I couldn’t move.
‘‘Q. Okay. When you say you couldn’t move, describe
what you mean.
‘‘A. It was the weirdest feeling. I was—I could not
move. I was so incapacitated. I was—I just remember
staring at the ceiling and I felt him doing that to me
but I—I could not fight back
‘‘Q. Were you able to speak?
‘‘A. No.’’
M further testified that she was not sure how long
the assault lasted, and that the next thing she remem-
bered was vomiting on the couch in the defendant’s
basement.
After the state rested, the defendant filed a motion for
a judgment of acquittal as to all counts of the substitute
information. The defendant argued, inter alia, that the
state had failed to present sufficient evidence to prove
beyond a reasonable doubt that he committed sexual
assault in the second degree because M was not physi-
cally helpless during the sexual encounter. The court
denied the defendant’s motion and concluded that the
jury reasonably could find that M was physically help-
less based on her testimony that she was unable to
speak or move during the penile-vaginal intercourse.
‘‘The appellate standard of review of sufficiency of
the evidence claims is well established. In reviewing a
sufficiency [of the evidence] claim, 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 jury reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable
doubt. . . .
‘‘Our review is a fact based inquiry limited to
determining whether the inferences drawn by the [fact
finder] are so unreasonable as to be unjustifiable. . . .
[T]he inquiry into whether the record evidence would
support a finding of guilt beyond a reasonable doubt
does not require a court to ask itself whether it believes
that the evidence . . . established guilt beyond a rea-
sonable doubt. . . . Instead, the relevant question is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt. . . .
‘‘We do not sit as a [seventh] juror who may cast a
vote against the verdict based upon our feeling that
some doubt of guilt is shown by the cold printed record.
We have not had the [fact finder’s] opportunity to
observe the conduct, demeanor, and attitude of the
witnesses and to gauge their credibility. . . .’’ (Internal
quotation marks omitted.) State v. Whitnum-Baker, 169
Conn. App. 523, 526, 150 A.3d 1174 (2016), cert. denied,
324 Conn. 923, 155 A.3d 753 (2017).
‘‘A person is guilty of sexual assault in the second
degree when such person engages in sexual intercourse
with another person and . . . such other person is
physically helpless . . . .’’ General Statutes § 53a-71
(a) (3). ‘‘ ‘Physically helpless’ means that a person is (A)
unconscious,4 or (B) for any other reason, is physically
unable to resist an act of sexual intercourse or sexual
contact or to communicate unwillingness to an act of
sexual intercourse or sexual contact.’’ (Footnote
added.) General Statutes § 53a-65 (6).
Recently, our Supreme Court concluded that the stat-
utory term ‘‘physically helpless’’ has ‘‘a highly particu-
larized meaning . . . .’’ State v. Fourtin, 307 Conn. 186,
198, 52 A.3d 674 (2012). Specifically, in order to be
rendered physically helpless, the complainant must
have been either (1) unconscious, or (2) unable to com-
municate—both verbally and physically—her lack of
consent to the sexual act. Id., 199–200. The latter sce-
nario commonly involves sexual assault that occurs
while the victim is sleeping or heavily intoxicated. See
State v. Fourtin, supra, 307 Conn. 202 (‘‘it is the rare
case that does not involve a victim who was physically
helpless due to unconsciousness, sleep or intoxication’’
[emphasis in original]).
At trial, the state argued that M was unable to commu-
nicate her lack of consent to the penile-vaginal inter-
course because she was heavily intoxicated. M testified
that she consumed at least one glass of wine, multiple
shots of hard liquor, a small glass of Dewars, and a
small glass of vodka after arriving at the defendant’s
home. She described her condition after consuming
the alcohol as ‘‘not well,’’ and testified that she was
stumbling, had blurred vision, and was slurring her
words. Critically, M further testified that she was ‘‘so
incapacitated’’ during the penile-vaginal intercourse
and could not move or speak. Moreover, she could not
recall the events that occurred immediately before or
after the assault. Based on this testimony, the jury rea-
sonably could have found that M was unable to commu-
nicate her lack of consent to the defendant’s conduct.
Thus, the evidence admitted at trial was sufficient to
prove beyond a reasonable doubt that M was rendered
physically helpless by way of intoxication.
The defendant argues, however, that M’s ability to
communicate her lack of consent to the defendant’s
digital penetration of her vagina earlier during the
assault ‘‘foreclosed any possibility of [M] being consid-
ered physically helpless under our law.’’ We are not
persuaded by the defendant’s assertion that M’s ability
to communicate her lack of consent at one point during
the sexual assault precluded the possibility that she
later became physically helpless.
First, in a closely related context, this court has con-
cluded that sexual assault in the first degree occurs
when a person who initially consents to sexual activity
later withdraws that consent, and the defendant forces
the victim to continue to engage in that activity. See
State v. Siering, 35 Conn. App. 173, 179, 185 (trial court
correctly instructed jury that ‘‘if there exists consensual
intercourse and the alleged victim changes her mind
and communicates the revocation or change of mind
of consent and the other person continues the sexual
intercourse . . . then it would be sexual assault.’’
[internal quotation marks omitted]), cert. denied, 231
Conn. 914, 648 A.2d 158 (1994). Thus, it logically follows
that sexual assault in the second degree occurs when,
like in the present case, an individual who was able to
communicate her consent or lack thereof at the begin-
ning of the sexual encounter later becomes unable to
do so and the defendant continues to engage that person
in sexual activity.
Second, we find it significant that § 53a-71 (a) (3)
does not impose the requirement that the victim be
physically helpless during the entirety of the sexual
assault. Although there is no Connecticut case law
addressing this issue, Pennsylvania appellate courts
have interpreted a similar, albeit not identical, statute
and concluded that a victim need not be unconscious
or physically helpless during the entire encounter for
the conduct to constitute a sexual assault.5 See Com.
v. Erney, 548 Pa. 467, 473–74, 698 A.2d 56 (1997) (con-
cluding that ‘‘[b]ecause the evidence supports the find-
ing that the victim was intermittently unconscious
throughout the assault and was at all relevant times in
such impaired physical and mental condition so as to
be unable to knowingly consent . . . [t]hat intercourse
. . . is sufficient to constitute rape of an unconscious
individual’’ [footnote omitted]); see also Com. v. Diaz,
152 A.3d 1040, 1045 (Pa. Super. 2016) (upholding convic-
tion for rape of unconscious individual because there
was evidence from which jury could have reasonably
concluded that victim was unconscious for at least por-
tions of assault).
Third, although the defendant attempts to portray his
conduct with respect to M as one continuous alleged
assault, our case law instructs that his various conduct
may properly be treated as distinct acts and punished
as separate crimes. This court has held that ‘‘distinct
repetitions of a prohibited act, however closely they
may follow each other . . . may be punished as sepa-
rate crimes . . . . The same transaction, in other
words, may constitute separate and distinct crimes
where it is susceptible of separation into parts, each
of which in itself constitutes a completed offense.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Howard F., 86 Conn. App. 702, 713, 862
A.2d 331 (2004) (upholding defendant’s conviction for
two separate counts of risk of injury to child arising
out of one course of conduct; defendant was convicted
for both fondling victim’s genitals and breasts as well
as engaging victim in penile-vaginal intercourse), cert.
denied, 273 Conn. 924, 871 A.2d 1032 (2005).
Thus, because M’s testimony that she could not physi-
cally or verbally communicate her lack of consent dur-
ing the penile-vaginal intercourse is sufficient to prove
that she was physically helpless, the fact that she was
able to communicate during the earlier stages of the
assault does not negate our ultimate conclusion. We
therefore determine that the evidence admitted at trial
was sufficient to prove beyond a reasonable doubt that
the defendant committed sexual assault in the sec-
ond degree.
II
The defendant next claims that the trial court improp-
erly denied his motion to dismiss the second count of
the state’s substitute information charging him with
sexual assault in the second degree. We disagree.
The following additional facts are relevant to the
resolution of the defendant’s claim. On September 14,
2015, the defendant was charged in the original informa-
tion with one count of sexual assault in the first degree
in violation of § 53a-70 (a) (1) and one count of delivery
of alcohol to a minor in violation of § 30-86 (b) (2). On
December 29, 2016, five days before jury selection was
scheduled to begin, the state filed a substitute informa-
tion charging the defendant, in an additional count, with
sexual assault in the second degree in violation of § 53a-
71 (a) (3).
On December 30, 2016, the defendant filed a motion to
dismiss the second count of the substitute information
charging sexual assault in the second degree. Therein,
the defendant argued that the second count was insuffi-
cient as a matter of law.
On January 6, 2017, the court heard oral argument
on the defendant’s motion to dismiss. The defendant
argued that the additional count alleging sexual assault
in the second degree was legally insufficient because
‘‘[M’s] statements to the police indicate[d] . . . a physi-
cal struggle.’’ The defendant further argued that the
state’s late filing of the substitute information preju-
diced him because, had he known that the state was
going to pursue the additional charge of sexual assault
in the second degree, he would have hired an expert
to ‘‘undermine that type of theory from the state.’’ The
defendant, however, did not request a continuance so
that he could retain an expert.
The court then made an oral ruling from the bench
denying the defendant’s motion to dismiss, concluding
that the warrant alleged facts sufficient to support the
charge of sexual assault in the second degree in viola-
tion of § 53a-71 (a) (3).6 The court further concluded
that the defendant was not prejudiced by the state add-
ing that charge so close to trial because the facts sup-
porting it were contained in the arrest warrant and had
been known to the defendant throughout the entirety
of the proceeding.
On January 9, 2017, the court allowed the defendant
to reargue his motion to dismiss. At that time, the defen-
dant raised an additional ground for dismissal, arguing
that the state improperly charged two substantively
different crimes based on the same set of facts. In so
arguing, the defendant relied exclusively on State v.
Hufford, 205 Conn. 386, 533 A.2d 866 (1987), for the
proposition that the state could not charge sexual
assault in the first degree, which requires the use of
force, and sexual assault in the second degree, which
requires the state to prove that the victim was physically
helpless, when both charges arose out of one alleged
assault.
The state countered that the defendant’s character-
ization of Hufford was incorrect and that it was proper
for a defendant to be charged with multiple offenses
depending on the facts of the particular assault. The
court then once again denied the defendant’s motion
to dismiss, without prejudice, concluding that his alter-
native ground for dismissal was premature because it
concerned ‘‘a factual issue with regard to what the
evidence in the case [was] going to show.’’
A
The defendant first argues that the trial court improp-
erly denied his motion to dismiss the second count of
the substitute information charging him with sexual
assault in the second degree because the state’s method
of charging violated his sixth amendment right to pre-
sent a defense. We disagree.
Whether the state’s method of charging violated the
defendant’s sixth amendment right to present a defense
constitutes a question of law subject to plenary review.
See State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542
(2015). The defendant first argues that our Supreme
Court’s decision in Hufford prohibits the method of
charging employed by the state in the present case. In
Hufford, the defendant was charged in multiple counts
with various sexual offenses. State v. Hufford, supra,
205 Conn. 388. In one count, however, the state charged
the defendant with sexual assault in the fourth degree
by alleging alternate theories of liability—i.e., that the
defendant had sexual contact with the complainant
either while she was physically helpless and/or without
her consent. Id., 395.
In that case, the state did not introduce any evidence
at trial regarding whether the complainant was physi-
cally helpless during the alleged assault. Nevertheless,
the court instructed the jury that it could convict the
defendant on that count if it found that the complainant
was physically helpless or had not consented to the
sexual contact. Id., 399. The defendant was subse-
quently convicted of sexual assault in the fourth
degree. Id.
On appeal, the defendant in Hufford claimed that the
information was legally improper because the count
charging him with sexual assault in the fourth degree
alleged two alternative theories of liability. The defen-
dant argued that this method of charging, coupled with
the court’s erroneous instruction to the jury, violated
his sixth amendment right to present a defense and to a
unanimous verdict. Id., 395. The defendant also claimed
that the evidence was insufficient to support his convic-
tion for that offense because the state had not presented
any evidence that showed that the complainant was
physically helpless during the alleged assault. Id.,
395–96.
Our Supreme Court disagreed with the defendant in
Hufford that the state’s method of charging in that case
was improper. Id., 397. The court ultimately set aside the
defendant’s conviction for sexual assault in the fourth
degree, however, because ‘‘[a] verdict rendered on a
single count charging alternative methods of commit-
ting the same crime may be upheld only if there is
sufficient evidence to support the verdict as to each
alternative charged,’’ and the state had not presented
any evidence that the complainant was physically help-
less. Id., 399. Thus, the state’s method of charging the
defendant and failure to offer evidence at trial that
proved that the alleged victim was physically helpless
ran the risk that jurors convicted the defendant on a
theory of liability for which there was no evidence and/
or sanctioned a nonunanimous verdict.
Even though the manner in which the defendant was
charged in the present case is different from how the
defendant was charged in Hufford, the defendant, in
support of his claim, nevertheless relies on the follow-
ing language in Hufford: ‘‘[A]n information which
charges two or more separate offenses in the alternative
is fatally defective because of its failure adequately to
apprise the defendant of the specific charge against
him’’ State v. Hufford, supra, 205 Conn. 397.
The defendant’s reliance on this language from Huf-
ford is misplaced for at least two reasons. First, in the
present case, the state did not charge the defendant with
two or more offenses in the alternative. The substitute
information charged each offense in a separate count
and made clear that the state intended to pursue a
conviction for both. See State v. Rios, 171 Conn. App.
1, 23, 156 A.3d 18 (amended information clearly charged
defendant with multiple counts of intentional assault
and reckless endangerment because ‘‘[the amended
information] did not in any way suggest that [the sepa-
rate offenses] represented alternative theories of liabil-
ity’’), cert. denied, 325 Conn. 914, 159 A.3d 232 (2017).
Second, the language in Hufford relied on by the
defendant must be read in context as to refer only to
an information that charges two or more offenses in
the alternative within a single count.7 In the present
case, the state charged the defendant with sexual
assault in the first and second degree in separate counts.
Thus, because the substitute information did not charge
the defendant with the two offenses either (1) in the
alternative, or (2) within a single count, it does not run
afoul of Hufford.
The defendant further argues that the substitute infor-
mation, in which the state alleged that he had commit-
ted both sexual assault in the first degree as well as
sexual assault in the second degree during a single
encounter, forced him to take alternative factual posi-
tions at trial thereby undermining his defense that M
consented to the sexual activity. Specifically, the defen-
dant argues that the inclusion of the charge of sexual
assault in the second degree put him in the untenable
position of arguing that M was not physically helpless
because she was able to communicate her lack of con-
sent, while at the same time asserting that she had
consented to the sexual acts. We disagree.
The state’s method of charging did not force the
defendant to take alternative factual positions. Rather,
the defendant’s assertion that M consented to the entire
sexual encounter, if credited by the jury, would have
provided a complete defense to both sexual assault in
the first and second degree. With respect to sexual
assault in the first degree, the defendant’s testimony
that M consented to sexual contact and intercourse
with him, if credited by the jury, would have negated
a conclusion that he used force to carry out those acts.
Likewise, his testimony that M communicated her con-
sent to the sexual activity would have precluded the
possibility that she was physically helpless as required
for a conviction of sexual assault in the second degree.
Thus, the state’s decision to charge the defendant with
sexual assault in both the first and second degree did
not prevent him from presenting a defense.
B
Finally, the defendant argues that the court abused its
discretion by denying his motion to dismiss the second
count of the substitute information charging him with
sexual assault in the second degree because the timing
of the state’s filing of that information violated his sub-
stantive rights. We disagree.
‘‘On appeal, our [standard of] review . . . of the
court’s decision to permit an amendment to the informa-
tion is one of abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Grant, 83 Conn. App. 90, 96–97,
848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d
529 (2004). ‘‘Before a trial begins, the state has broad
authority to amend an information pursuant to Practice
Book § 36-17;’’ id., 97; which provides, ‘‘[i]f the trial has
not commenced, the prosecuting authority may amend
the information, or add additional counts, or file a sub-
stitute information. Upon motion of the defendant, the
judicial authority, in its discretion, may strike the
amendment or added counts or substitute information,
if the trial or the cause would be unduly delayed or the
substantive rights of the defendant would be preju-
diced.’’ Practice Book § 36-17. For purposes of Practice
Book § 36-17, a criminal trial begins with the voir dire
of the prospective jurors. State v. Tanzella, 226 Conn.
601, 608, 628 A.2d 973 (1993).
‘‘In determining whether the defendant’s rights were
prejudiced, this court considers the totality of the cir-
cumstances in deciding whether the defendant was sur-
prised by the changes and whether the defense was
hampered. . . . A bare assertion of prejudice is not
sufficient . . . . The defendant must provide a specific
showing of prejudice in order to establish that he was
denied the right of due process of law . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v.
Marsala, 44 Conn. App. 84, 89, 688 A.2d 336, cert.
denied, 240 Conn. 912, 690 A.2d 400 (1997).
In the present case, the state properly relied on Prac-
tice Book § 36-17 to file a substitute information prior
to trial. The defendant asserts, however, that he was
prejudiced because, at trial, he ‘‘lamented the fact that
he was not able to retain an expert to refute [the state’s
allegation that M was physically helpless].’’ To the
extent that the defendant is arguing that he was preju-
diced by the state’s filing of the substitute information
because he did not have time to hire an expert, he
should have requested a continuance. See State v. Mar-
sala, supra, 44 Conn. App. 88–90 (court did not abuse
discretion in allowing state to file amended information
alleging five additional charges on day that trial began;
defendant did not request continuance to allow time to
investigate additional charges).
Furthermore, as the court properly noted at oral argu-
ment on the defendant’s motion to dismiss, in adding
the charge of sexual assault in the second degree the
state was not substituting a theory of liability, but rather
adding one based on facts that were contained in the
defendant’s arrest warrant and known to him through-
out the entirety of the proceedings. See State v. Mar-
sala, supra, 44 Conn. App. 90 (defendant was not
prejudiced by state’s late filing of amended information
in part because ‘‘the state turned over the police reports
detailing the five additional charges early in the prose-
cution’’). Thus, under all of these circumstances, we
conclude that the court properly denied the defendant’s
motion to dismiss.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant does not challenge on appeal his conviction of delivery
of alcohol to a minor.
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
M testified that she does not remember how she went from standing to
lying on the floor.
4
The state does not contend that M was unconscious at any time during
the assault.
5
We recognize that these cases, unlike the present case, involve a claim
that the victim was unconscious for at least part of the sexual conduct.
This distinction, however, does not undermine our reliance on them because
we cite them for a broader principle. That is, a defendant may be convicted
of a sexual offense if he has sexual contact with a person who, although
she is able to express consent or lack thereof at some point during a sexual
encounter, becomes unable to do so subsequently because she either has
become unconscious or is so intoxicated that she is unable to communicate
at all.
6
On appeal, the defendant does not challenge the court’s conclusion that
the warrant alleged sufficient facts to support the charge of sexual assault
in the second degree.
7
The court in Hufford did not describe with any detail the way in which
the state pleaded the particular counts at issue. This lack of detail creates
potential ambiguity regarding whether the state pleaded alternative theories
of liability in one count or separate counts. Our review of Hufford, however,
leads us to conclude that the court was discussing a scenario in which
alternative methods of committing the same offense were pleaded in a single
count. First, in describing the manner in which the trial court’s instruction
to the jury was improper, it stated as follows: ‘‘A verdict rendered on a
single count charging alternative methods of committing the same crime
may be upheld only if there is sufficient evidence to support the verdict as
to each alternative charged.’’ (Emphasis added.) State v. Hufford, supra,
205 Conn. 399. Second, our review of the substitute information and bill of
particulars in Hufford confirms that the state pleaded alternative methods
of committing sexual assault in the fourth degree in a single count. Thus,
any language in Hufford regarding limitations on the state’s ability to charge
alternative methods of committing the same offense must be limited to
instances in which the state has done so in a single count.
8
The defendant also argues that State v. Secore, 194 Conn. 692, 485 A.2d
1280 (1984), prohibits the state from adding a charge on the eve of trial that
is substantively different than the one for which the defendant was arrested.
The defendant’s characterization of our Supreme Court’s holding in Secore
is incorrect. The issue in that case was whether, under the old indictment
system, the defendant was improperly sentenced as a persistent felony
offender because the substantive offense of which he was convicted was
charged in a different indictment than the persistent felony offender viola-
tion. Id., 694. Secore did not concern issues relating to the timing of the
state’s filing of the substitute information and thus has no bearing on the
present case. See id., 701 (defendant made no claim that he was prejudiced
or unfairly surprised by the substitute information).