State v. Bumgarner-Ramos

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STATE OF CONNECTICUT v. CARROLL L.
BUMGARNER-RAMOS
(AC 39923)
DiPentima, C. J., and Lavine and Moll, Js.
Syllabus
Convicted of the crimes of assault in the first degree, aggravated sexual
assault of a minor, risk of injury to a child and manslaughter in the first
degree in connection with the death of the three year old victim, who had
sustained numerous injuries while in the defendant’s care, the defendant
appealed to this court. He claimed that there was insufficient evidence
to convict him of aggravated sexual assault of a minor and that his
conviction of both assault in the first degree and manslaughter in the
first degree violated the constitutional guarantee against double jeop-
ardy. Held:
1. There was sufficient evidence to support the defendant’s conviction of
aggravated sexual assault of a minor: contrary to the defendant’s claim
that the state failed to prove that he engaged in vaginal sexual intercourse
with the victim within the meaning of the applicable statutes (§§ 53a-
70c [a] [3] and 53a-70 [a] [2]) because there was no evidence of penetra-
tion, the trial court credited the testimony of the associate medical
examiner who performed the autopsy of the victim’s body that the victim
had suffered, inter alia, a small laceration that started outside the right
labia majora and extended inside the labia majora, as well as a contusion
inside the labia majora, and found that the defendant had caused such
injuries, and consistent with established legal principles set forth by
our Supreme Court, such evidence demonstrated sufficient penetration
of the labia majora to constitute vaginal intercourse under the relevant
statute (§ 53a-65 [2]), which provides that penetration, however slight,
is sufficient to complete vaginal intercourse; moreover, the trial court’s
finding that the victim’s injuries were inflicted by the application of
physical force on the subject areas by the defendant was relevant to
and necessary for its finding that the defendant was guilty of aggravated
sexual assault of a minor, which required that the defendant used vio-
lence to commit the offense of sexual assault in the first degree.
2. The defendant’s conviction of both assault in the first degree and man-
slaughter in the first degree violated the constitutional guarantee against
double jeopardy, as it was undisputed that his conviction of those
charges arose out of the same transaction and, as charged by the state,
the assault charge was a lesser included offense of the manslaughter
charge: the defendant could not have caused the death of the victim in
the manner described in the operative information without first having
caused serious physical injury to her, as the defendant was charged
with assault in the first degree pursuant to statute (§ 53a-59 [a] [3]),
which only required proof that the defendant, under circumstances
evincing an extreme indifference to human life, recklessly engaged in
conduct that created a risk of death to another person, and thereby
caused serious physical injury to another person, and, therefore, proof
that the defendant caused the victim serious physical injury under the
assault charge was subsumed within the evidentiary requirement under
the manslaughter charge that he caused the victim’s death, and this
court was not aware of any conceivable circumstance in which the
defendant could have caused the victim’s death without also having
caused her serious physical injury; accordingly, a constitutional violation
existed that deprived the defendant of a fair trial, and because the error
was not harmless, the case was remanded with direction to vacate the
conviction of the lesser included offense of assault in the first degree.
Argued October 11, 2018—officially released February 5, 2019
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, aggravated
sexual assault of a minor, risk of injury to a child and
manslaughter in the first degree, brought to the Superior
Court in the judicial district of Windham, geographical
area number eleven, and tried to the court, Swords, J.;
judgment of guilty, from which the defendant appealed
to this court. Reversed in part; judgment directed.
Erica A. Barber, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Patricia Froehlich, former
state’s attorney, and Matthew Crockett, former senior
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Carroll L. Bumg-
arner-Ramos, appeals from the judgment of conviction,
rendered after a court trial, of assault in the first degree
in violation of General Statutes § 53a-59 (a) (3), aggra-
vated sexual assault of a minor in violation of General
Statutes §§ 53a-70c (a) (3) and 53a-70 (a) (2), risk of
injury to a child in violation of General Statutes § 53-
21 (a) (1), and manslaughter in the first degree in viola-
tion of General Statutes § 53a-55 (a) (3). On appeal,
the defendant claims that (1) there was insufficient
evidence presented at trial to convict him of aggravated
sexual assault of a minor and (2) his conviction of both
assault in the first degree and manslaughter in the first
degree violated the constitutional guarantee against
double jeopardy. We agree with the defendant with
regard to his double jeopardy claim and vacate his con-
viction of assault in the first degree. We affirm the
judgment of the trial court in all other respects.
The following facts are relevant to the defendant’s
claims on appeal. The defendant met the victim’s
mother, Kim F.1 (Kim), in 2009, when she was four
months pregnant with N, the victim. The two began a
relationship, and, following the birth of N in June, 2010,
the defendant took on a paternal role until his incarcera-
tion2 in August, 2011, at which time the couple’s relation-
ship ended. Following his release, the defendant
reconciled with Kim in May, 2013, and, shortly there-
after, Kim and N began to stay periodically at the defen-
dant’s apartment in Willimantic.
On June 11, 2013, Ronald Kelly, a pediatrician, per-
formed a routine medical examination of N, who was
then three years old. During the examination, Kelly
observed ‘‘some big bruises’’ on the child’s back that
Kim was unable to explain. The bruises were diagonal
and similar to the shape of three fingers on a person’s
hand. Kelly also noted that N was acting unusual; ‘‘she
was throwing herself on the ground, [and acting] totally
out of control.’’ Following the examination, Kelly, in
accordance with his responsibility as a mandatory
reporter,3 informed the Department of Children and
Families (department) that N had unexplained bruises.4
The department assigned a social worker, Rosiris
Espejo, to investigate the suspected abuse. Several days
after Kelly had informed the department, Espejo met
with Kim at the residence of N’s grandmother. During
their meeting, Espejo asked Kim to name the people
who were responsible for N’s care. She identified her-
self, the grandmother, and N’s daycare provider, Marion
Snow. She did not mention the defendant or the fact
that N had often spent time at his apartment.
On June 24, 2013, Kim brought N to the grandmother’s
house. When the grandmother saw N that day, she
noticed that N had ‘‘black and blue’’ bruises around her
eyes. Kim told her that the bruises were caused by a
fall.5 Later that day, when the grandmother attempted
to change N’s diaper and to give her a bath, N started
screaming and jumped into her grandmother’s arms. N
had never acted this way before and seemed scared,
as though ‘‘something came to her mind.’’
Two days later, on June 26, 2013, Kim and N stayed
at the defendant’s apartment. The defendant had rented
a room in the basement of a three-story house that was
occupied by several other individuals. When Kim and
N stayed at the apartment, Kim slept with the defendant
on a mattress on the floor, and N slept on a smaller
mattress beside them. That evening, Kim began to pack
some of her belongings, intending to leave with N and to
go to the grandmother’s house. The defendant became
angry, yelled at Kim and, in an effort to prevent her
from leaving, took her cell phone and car keys. The
defendant then went into the living room, just outside
the bedroom, and stayed there for most of the night
while Kim and N remained in the bedroom. At around
midnight, the defendant came back into the bedroom
to sleep.
In the early morning hours of June 27, 2013, N started
‘‘fussing and crying and wouldn’t settle down.’’ The
defendant got out of bed, went over to where N was
sleeping, and repeatedly and forcefully poked her in
the stomach. While he was poking her, he yelled at her:
‘‘This is what you do to me. You’re going to keep me
up? How do you like it?’’ After he poked her several
times, N started to cry. Kim picked her up and eventually
comforted her back to sleep.
Later that morning, the defendant left to attend a
therapy program at Natchaug Hospital. A short while
later, Kim and N woke up. N did not seem to be in any
apparent distress, and she ate her breakfast without
difficulty. Kim received a phone call from the defendant
asking her to come get him at Natchaug Hospital
because he felt sick and his therapist told him to go
home. After she picked him up and dropped him off at
the apartment, Kim went to the grandmother’s house
to get some medicine. When she got back to the apart-
ment, she took a bath with N, during which she noticed
bruising on the child’s chest in the area where the defen-
dant had poked her. At approximately 12:30 p.m., Kim
left for work, leaving N alone with the defendant.
While she was at work, Kim and the defendant
exchanged several text messages. At 1:42 p.m., the
defendant sent the following message: ‘‘So far so good
just brushed her hair her bump is still a little swollen
but it should be gone soon!’’6 Then, six minutes later,
he texted: ‘‘Hopefully her bump leaves soon! She’s
behaving really well!!!’’ At 1:52 p.m., Kim responded to
the second message: ‘‘Where is it?’’ Five minutes later,
the defendant answered: ‘‘I feel shitty I can’t breathe.
The same swollen side that [N] had. I noticed it when
I brushed her hair, she’s doing good tho[ugh]!!!’’
At 2:21 p.m., Kim texted the defendant: ‘‘You want
me to come get [N]?’’ He responded immediately: ‘‘She’s
good! She’s chilling, keeping me company.’’ After he
had asked Kim when she would be home, the defendant,
at 2:31 p.m., texted: ‘‘She is feisty!!!!’’ Then, six minutes
later, the defendant wrote: ‘‘Should I give her medicine?
She worries me because that bump takes so long to
go away. It’s like another came or something and the
bruising too! She should be ok!’’ At 2:40 p.m., the defen-
dant texted: ‘‘She feels [warm] ma!’’ Kim responded at
2:41 p.m., with two separate messages: ‘‘The heater is
on remember, [because you’re] sick,’’ followed by: ‘‘So
that is prob[ably] why she feels warm.’’ Approximately
ten minutes later, the defendant wrote: ‘‘Her head still
looks swollen should I put ice [on it]?’’ Kim responded:
‘‘Yes.’’ The defendant then, at 2:52 p.m., texted: ‘‘And
her eye is like a [little] swollen too. But she won’t let
me!’’ He then sent a text at 3:05 p.m., which read: ‘‘I’m
putting ice [on it] now!’’ Approximately twenty minutes
later, the defendant wrote: ‘‘Put [N] in the [tub] to cool
her off she’s having fun!’’
The defendant sent Kim a text at 4:05 p.m., in which
he wrote: ‘‘[N] and I just puked.’’ One minute later, Kim
responded: ‘‘You both puked? Omg.’’ Then, at 4:10 p.m.,
Kim asked: ‘‘Did you make it to the bathroom at least?’’
At 4:11 p.m., the defendant replied: ‘‘[N’s] left eye is
strai[ght] but the [right] eye [is] still a [little] swollen,
another couple of days [and] she’ll be good!!!’’ Approxi-
mately ten minutes later, Kim asked: ‘‘Is she okay? Did
she puke a lot?’’ Immediately, the defendant answered:
‘‘[A little] bit.’’
At 5:34 p.m., the defendant texted: ‘‘Ok, I think [N]
is getting better because her eye is all swollen!’’ Then,
five minutes later, he wrote: ‘‘[N] and I took [a] hot
bath!!!’’ Approximately an hour later, the defendant sent
the following text: ‘‘Kim, I can’t take it. I’m in fucking
pain!!!!!’’ Kim responded four minutes later: ‘‘Let’s go
to the hospital. [I’ll] drop [N] off at my mom’s.’’ The
defendant wrote back immediately: ‘‘Give it a [little]
more. It’s [my] fucking throat.’’ At 7:45 p.m., the defen-
dant texted: ‘‘[Damn], I can’t even eat my throat hurt[s]
that much!!!!!’’ Four minutes later, Kim responded: ‘‘I
don’t want you to stop breathing I’m worried.’’
Approximately an hour later, the defendant wrote:
‘‘[N] threw up again!!!!! All over the bed!!!’’ Then, a few
minutes later, he texted: ‘‘She’s pale I’m pale!!!! Wtf.’’
Twenty minutes later, at 9 p.m., he wrote: ‘‘Hurry.’’ One
minute later, Kim responded: ‘‘I think we need to go
to the emergency room.’’ Immediately, the defendant
replied: ‘‘[N] has too many bruises.’’ Later, at 9:23 p.m.,
the defendant wrote: ‘‘She’s eating oranges [a]nd talk-
ing.’’ Four minutes later, he texted: ‘‘Now that I think
about it that sh[it] look[s] like Lyme [disease]!’’
Sometime after 9 p.m., Kim arrived back at the defen-
dant’s apartment. The defendant met her at the top of
the stairs leading to the basement and gave her money
to buy Tylenol for N. At this time, Kim did not go
downstairs to check on N. She drove to a local phar-
macy, purchased Tylenol, and drove back to the apart-
ment. When she arrived back, she went downstairs and
found N lying on the defendant’s mattress in the bed-
room. N was ‘‘badly bruised from head to toe,’’ and the
mattress was covered in vomit. Kim noticed that N was
wearing a different outfit than the one she had dressed
her in before she left for work. Concerned that there
might be more injuries in addition to the ones she could
see, Kim undressed N and found a large mark on her
stomach. To Kim, it appeared as though something had
bitten N. She observed bruises and scratches on her
feet and ‘‘marks all over her body,’’ and her head was
swollen and bruised on the right side.7 Kim testified
that N felt cold and clammy, and that she noticed that
the child was having trouble breathing.
Kim dressed N in fresh clothes and carried her outside
to the car to go to the hospital. As she put her in the
car, Kim realized that N had stopped breathing. Kim
took her out of the car and ran to the sidewalk in
front of the apartment. She put N on the ground and
attempted to perform cardiopulmonary resuscitation
(CPR) but stopped when she started to panic. Kim
screamed for help, and, hearing her cries, one of the
defendant’s roommates, Robert Trevorrow, came out-
side to assist her. Trevorrow resumed CPR while Kim
dialed 911 and requested an ambulance. At some point,
the defendant joined Kim and Trevorrow outside on
the sidewalk and attempted to assist in the efforts to
resuscitate N. When the ambulance arrived, Kim handed
N to the responding emergency personnel and joined
them in the back of the ambulance. The defendant, at
some point, also entered the rear of the ambulance;
however, he was told to ride up front with the driver
in order to give more space to the treating technicians.
Christopher Reddy, a paramedic, arrived on scene at
10:23 p.m., shortly after the ambulance. He entered the
back of the ambulance and observed that N had no
pulse and was not breathing and that emergency person-
nel had started to perform CPR. He also noticed that
N had bruises all over her body, including bruising and
swelling in the area around her right eye, and that her
abdomen appeared ‘‘distended’’ and ‘‘rigid,’’ which was
unusual for a three year old child. After being on scene
for approximately two minutes, the ambulance left for
Windham Hospital and arrived there approximately
three minutes later.
At Windham Hospital, N was transferred to the care
of Max Goldstein, a physician working in the emergency
department that evening. Goldstein observed that N had
sustained numerous injuries. He testified that bruises
were scattered diffusely throughout her body; she had
what appeared to be bite marks on her skin; there was
trauma to her vaginal, perineal, and anal areas, and
‘‘the vagina itself had trauma’’; and there was extensive
swelling behind her face. Goldstein and medical person-
nel continued resuscitation efforts but ultimately were
unsuccessful in reviving N, who was pronounced dead
at 11:15 p.m.8
Notified of N’s death, state police detectives from
the eastern district major crimes squad arrived at the
hospital and interviewed Kim and the defendant sepa-
rately. During the interview, the defendant claimed that
N had been sick for a couple of days and that she had
been vomiting periodically during this time. When asked
about the bruises to N’s face and body, he said that
she had rolled off her mattress and hit her head on a
baseboard heater several days earlier, and that she had
caused the other bruises to herself during a temper
tantrum. With regard to the specific events that took
place on June 27, 2013, the defendant stated that N was
not acting herself, ‘‘she was out of it,’’ and she was
throwing up all day and crying a lot. He stated that he
gave her a bath at around 6 p.m., dressed her in new
clothes, and then watched a movie with her. Throughout
the interview, the defendant repeatedly denied hitting
or abusing N in any manner.
In the early morning hours of June 28, 2013, the defen-
dant was arrested in connection with N’s death and
transported to Troop K in Colchester. After he read and
waived his Miranda9 rights, the defendant agreed to an
interview with detectives. During this interview, the
defendant expressed suicidal feelings and invoked his
right to counsel. The detectives stopped questioning
him and told him that if he wanted to speak with them
again, he would have to initiate the conversation. A
short while later, the defendant requested to speak with
the detectives, and he again read and waived his
Miranda rights. The defendant claimed, during this sec-
ond interview, that he was playing with N, swinging
her around by her arms, and that she hit her head on
a metal pole in the middle of the bedroom. Although
he initially denied hitting her, after further questioning,
he admitted that he spanked her because she would
not stop crying. When asked about the injuries to N’s
vaginal, perineal, and anal areas, he said he was ‘‘spank-
ing the shit out of her there . . . on her ass,’’ ‘‘slapping
[her] ass’’ and that he ‘‘might’’ have hit her in the vaginal,
perineal, and anal areas. He also told the detectives
that ‘‘she was kicking and moving and that he was just
spanking away.’’ When detectives inquired about the
bite marks all over N’s body, he replied: ‘‘I think I over-
did it with the biting.’’
Following his arrest, the defendant was charged by
long form information with assault in the first degree
in violation of § 53a-59 (a) (3), aggravated sexual assault
of a minor in violation of §§ 53a-70c (a) (3) and 53a-70
(a) (2), risk of injury to a child in violation of § 53-21
(a) (1), and manslaughter in the first degree in violation
of § 53a-55 (a) (3). The defendant waived his right to
a jury trial. After an eight day trial, the court found the
defendant guilty on all counts and sentenced him to
a total effective term of thirty years of incarceration,
followed by fifteen years of special parole.10 From this
judgment the defendant now appeals. Additional facts
will be set forth as necessary.
I
The defendant first claims that the evidence pre-
sented at trial was insufficient to convict him of aggra-
vated sexual assault of a minor.11 Specifically, the
defendant argues that the state failed to prove that
he engaged in sexual intercourse with N, within the
meaning of §§ 53a-70c (a) (3) and 53a-70 (a) (2), because
there was no evidence of penetration. We disagree.
The following facts are relevant to our resolution of
this claim. During the defendant’s second interview at
Troop K, detectives asked him to explain the injuries
to N’s vaginal and anal regions. The defendant
responded that he ‘‘was spanking the shit out of her
. . . ass’’ and that he ‘‘might have hit her right there.’’
When asked if he spanked N ‘‘in the front too,’’ the
defendant said: ‘‘[S]he was kicking and moving, and
[he] was just spanking away.’’ When asked to admit
whether he sexually assaulted the child, the defendant
replied: ‘‘I didn’t sexually assault her. I spanked her
there. I don’t know if that’s the same thing, [or] if you
guys are going to classify it as that.’’ Finally, the defen-
dant denied that any of his semen would be found on
the child.12
At trial, Susan Williams, an associate medical exam-
iner with the Office of the Chief Medical Examiner,
testified that on June 28, 2013, she had performed an
autopsy of N’s body. During her examination, Williams
observed injuries to N’s vaginal, perineal, and anal
areas. With respect to the injuries to N’s vagina, Wil-
liams noted bruising and a ‘‘small laceration’’ to the
labia majora and a contusion to the soft tissue ‘‘on the
inner portion of the labia majora.’’ Williams opined that
these injuries were the result of blunt force trauma.
Additionally, Williams testified that she performed an
internal examination of N’s rectum, in which she found
that the pelvic soft tissue was hemorrhagic. In Williams’
opinion, because this area is protected by the pelvic
ring, the only way that it could be injured is with ‘‘some-
thing being up there adjacent to it,’’ i.e., the insertion
of some object into the vagina or rectum. When asked
whether these injuries were consistent with a child
being spanked, Williams testified: ‘‘I wouldn’t expect
spanking to cause the deep tissue and soft tissue, fat,
muscle hemorrhage that I saw. I [examined] the section
in the rectum which is above the anus. I would not
expect that to have bled way up there.’’
In providing the evidentiary basis for its conclusion
that the defendant engaged in sexual intercourse as
defined by §§ 53a-70c (a) (3) and 53a-70 (a) (2), the
court stated the following: ‘‘The court thus finds that
the defendant was the person who inflicted the injuries
and contusions to [N’s] inner thighs, the area over her
pubic bone, and the outside and inside of the labia
majora, and that those injuries were inflicted by the
application of physical force on those areas by the
defendant. The court further finds, however, that there
is insufficient evidence to conclude that the defendant
caused the hemorrhaging of the deep tissue between
the anus and the vagina.
‘‘At the time of her death, [N] was three years old.
As stated before, the defendant is an adult male well
in excess of two years older than the victim. The court
concludes therefore that the state has proven beyond a
reasonable doubt that the defendant engaged in vaginal
intercourse as defined in our statutes and our case law
with [N], a person not married to him; that at the time
of the act, [N] was less than thirteen years of age and
that the defendant was more than two years older than
her. Furthermore, the court finds that the defendant
used violence to commit the sexual intercourse.’’
On appeal, the defendant argues that the court’s evi-
dentiary basis for concluding that he engaged in vaginal
sexual intercourse with N is insufficient. We do not
agree.
We begin by setting forth the applicable standard of
review. ‘‘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. . . . In evaluating evidence, the trier of
fact is not required to accept as dispositive those infer-
ences that are consistent with the defendant’s inno-
cence. . . . The trier may draw whatever inferences
from the evidence or facts established by the evidence
it deems to be reasonable and logical. . . . This does
not require that each subordinate conclusion estab-
lished by or inferred from the evidence, or even from
other inferences, be proved beyond a reasonable doubt
. . . because this court has held that a [trier’s] factual
inferences that support a guilty verdict need only be
reasonable.’’ (Internal quotation marks omitted.) State
v. Hector M., 148 Conn. App. 378, 384, 85 A.3d 1188,
cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).
‘‘While the [trier of fact] must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, 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 [trier of fact] to
conclude that a basic fact or an inferred fact is true,
the [trier] 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, [i]n evaluating evidence that could yield con-
trary inferences, the [trier] is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . As we have often
noted, proof beyond a reasonable doubt does not mean
proof beyond all possible doubt . . . nor does proof
beyond a reasonable doubt require acceptance of every
hypothesis of innocence posed by the defendant that,
had it been found credible by the [trier], 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 evidence that supports the [trier’s] verdict of guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Torres, 242 Conn. 485, 489–90, 698 A.2d 898
(1997).
For the purposes of §§ 53a-70c (a) (3) and 53a-70 (a)
(2), sexual intercourse is defined as ‘‘vaginal inter-
course, anal intercourse, fellatio or cunnilingus
between persons regardless of sex. Its meaning is lim-
ited to persons not married to each other. Penetration,
however slight, is sufficient to complete vaginal inter-
course, anal intercourse or fellatio and does not require
emission of semen. Penetration may be committed by
an object manipulated by the actor into the genital or
anal opening of the victim’s body.’’ (Emphasis added.)
General Statutes § 53a-65 (2). Our Supreme Court in
State v. Albert, 252 Conn. 795, 809, 750 A.2d 1037 (2000),
recognized that ‘‘there is nothing to suggest that the
term genital opening was intended to require that pene-
tration occur beyond the labia majora to at least the
labia minora . . . .’’ State v. Hector M., supra, 148
Conn. App. 386.
‘‘Under common usage of the language, the term geni-
tal opening means an opening associated with the geni-
tals. The word genitals means genitalia . . . which
means the organs of the reproductive system; [espe-
cially]: the external genital organs. . . . Similarly,
Taber’s Cyclopedic Medical Dictionary defines genitals
and genitalia as organs of generation; reproductive
organs, and states that the female external genitalia
collectively are termed the vulva or pudendum and
include the . . . labia majora and that the internal geni-
talia are the two ovaries, fallopian tubes, uterus, and
vagina. . . . Thus, as the term genitals refers especially
to the external genital organs, which include the labia
majora, it would be unreasonable to conclude that when
the legislature used the term genital opening, it meant
to exclude the external genital organs and refer only
to the internal genital organs such as the vagina.
‘‘Opening is defined in common usage as something
that is open . . . . Open, in turn, is defined as spread
out: unfolded: having the parts or surfaces laid back in
an expanded position: not drawn together, folded, or
contracted . . . . We previously noted that the labia
majora are defined as the outer fatty folds bounding
the vulva. . . .
‘‘From these definitions, it can be deduced that: (1)
the term genitals commonly refers to the external repro-
ductive organs, which include, on a female, the labia
majora; (2) the term opening means something that is
unfolded or spread out; and (3) the labia majora are
folds. Thus, we conclude that the opening between the
folds, i.e., labia majora, is the genital opening and that
the labia majora form the boundaries of the genital
opening. Moreover, because we have construed the
term vaginal intercourse, as that term is used in § 53a-
65 (2), to include digital penetration, however slight,
of the genital opening . . . we conclude that digital
penetration, however slight, of the labia majora is suffi-
cient penetration to constitute vaginal intercourse
under § 53a-65 (2).’’ (Citations omitted; emphasis omit-
ted; footnotes omitted; internal quotation marks omit-
ted.) State v. Albert, supra, 252 Conn. 807–809.
In Albert, our Supreme Court determined that the
evidence was sufficient to convict a defendant of sexual
assault in the first degree on the basis of the victim’s
testimony that the defendant ‘‘touched ‘[i]nside’ her
crotch,’’ and two scrapes that were observed on the
victim’s labia majora, which a pediatrician testified
were consistent with penetration of the genital opening.
Id., 813–14. In rejecting the defendant’s argument that
there was no evidence to infer that the defendant ‘‘did
anything other than touch the surface of [the victim’s]
labia majora,’’ the court concluded that a reasonable
jury could infer from the evidence that ‘‘the defendant’s
finger entered the victim with some force and passed
beyond the actual location of the scrapes on the victim’s
labia major.’’ (Internal quotation marks omitted.) Id.,
814. Applying the language of § 53a-65 (2) and Albert’s
judicial gloss, this court has upheld sexual assault con-
victions predicated on similar circumstantial proof of
penetration. See, e.g., State v. Gerald A., 183 Conn. App.
82, 94, 191 A.3d 1003 (‘‘jury was free to infer, on the
basis of this record and its common sense, that if [the
victim] flinched and clenched because [i]t hurt when
the defendant tried to put his finger inside of her vagina,
that the defendant digitally penetrated, at the very least,
[the victim’s] labia majora.’’ [internal quotation marks
omitted]), cert. denied, 330 Conn. 914, 193 A.3d 1210
(2018); State v. Elmer G., 176 Conn. App. 343, 354, 170
A.3d 749 (concluding that jury could infer that when
defendant forced victim to put her ‘‘mouth on his penis,’’
that defendant did so ‘‘in a manner that caused his
penis to enter into her mouth’’), cert. granted on other
grounds, 327 Conn. 971, 173 A.3d 952 (2017); State v.
Edwin M., 124 Conn. App. 707, 725–26 and n.7, 6 A.3d
124 (2010) (evidence that anal injury consistent with
penile penetration sufficient for the purposes of
affirming sexual assault conviction), cert. denied, 299
Conn. 922, 11 A.3d 151 (2011).
Here, the defendant contends that the application
of physical force on N’s vagina and labia majora was
insufficient to support a conviction of sexual assault
because there was no evidence that he penetrated N’s
genital opening. This argument, however, misappre-
hends the evidence, the court’s explication of its verdict,
and the controlling principles discussed previously.
Most significantly, the court credited the testimony of
Williams that N had suffered, inter alia, a small lacera-
tion that started outside the right labia majora and
extended inside the labia majora, as well as a contusion
inside the labia majora, and found that the defendant
had caused such injuries. Consistent with the principles
set forth in State v. Albert, supra, 252 Conn. 809, such
evidence demonstrates sufficient penetration of the
labia majora to constitute vaginal intercourse under
§ 53a-65 (2). See id., 812 (‘‘slight penetration does not
require vaginal penetration’’); see also id., 813 (‘‘we
disagree with the defendant’s suggestion that a defen-
dant must put his finger or his fingers ‘beyond the labia
majora’ for his conduct to fall within the definition of
sexual intercourse in § 53a-65 [2]’’). With regard to the
defendant’s challenge to the court’s statement that
‘‘those injuries were inflicted by the application of phys-
ical force on those areas by the defendant,’’ the defen-
dant effectively ignores that such finding was relevant
to and necessary for the court’s finding that the defen-
dant was guilty of aggravated sexual assault of a minor
pursuant to § 53a-70c (a) (3), namely, that the defendant
‘‘used violence to commit [the] offense’’ of sexual
assault in violation of § 53a-70 (a) (2). The court had
explained previously that because ‘‘violence’’ is not a
defined term for purposes of § 53a-70c (a) (3), it was
using a dictionary definition, i.e., ‘‘exertion of physical
force so as to injure or abuse.’’ On the basis of the
foregoing, we conclude that there was sufficient evi-
dence to support the defendant’s conviction of aggra-
vated sexual assault of a minor.
Accordingly, construing the evidence in the light most
favorable to sustaining the court’s finding of guilt, we
conclude that there was sufficient evidence from which
the court reasonably could have found beyond a reason-
able doubt that the defendant was guilty of aggravated
sexual assault of a minor.
II
Next, the defendant claims on appeal that his convic-
tion of both assault in the first degree and manslaughter
in the first degree violates the constitutional guarantee
against double jeopardy. Specifically, the defendant
argues that his conviction of those charges arises out
of the same transaction and that the assault charge is
a lesser included offense of the manslaughter charge.
Accordingly, the defendant submits that, under a
Blockburger13 analysis, his conviction of assault in the
first degree should be vacated. We agree.
As a threshold matter we must determine whether
this claim was preserved for review. The defendant
argues that because it was raised prior to sentencing,
the claim was preserved. We agree with the state, how-
ever, that the claim was not preserved because it was
not raised distinctly at trial. See State v. Smith, 100
Conn. App. 313, 320 n.6, 917 A.2d 1017 (‘‘[a] party cannot
preserve grounds for reversing a trial court decision by
raising them for the first time in a postverdict motion’’
[internal quotation marks omitted]), cert. denied, 282
Conn. 920, 925 A.2d 1102 (2007). Irrespective of the fact
that the claim was unpreserved, it is still reviewable
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). ‘‘Under Golding,
a defendant may prevail on an unpreserved claim only
if the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Wright, 319 Conn. 684, 688–89, 127 A.3d 147
(2015). Because the record is adequate for our review,
and the defendant’s claim that his conviction violated
his right against being placed in double jeopardy is of
constitutional magnitude, our inquiry focuses on
whether the violation alleged by the defendant exists
and deprived him of a fair trial. See id., 689.
The following additional facts and procedural history
are relevant to our analysis of this issue. The defendant
was charged by long form information with, inter alia,
one count of assault in the first degree and one count
of manslaughter in the first degree. With respect to the
assault charge, the state alleged: ‘‘[O]n or about June 27,
2013 . . . [the defendant] acting under circumstances
evincing an extreme indifference to human life, did
recklessly engage in conduct which created a risk of
death to another person, to wit: [N] . . . and did
thereby cause serious physical injury to [N] . . . .’’14
As to the charge of manslaughter in the first degree,
the state alleged: ‘‘[O]n or about June 27, 2013 . . . [the
defendant] under circumstances evincing an extreme
indifference to human life, did recklessly engage in con-
duct which created a grave risk of death to another
person, to wit: [N] . . . and did thereby cause the death
of [N] . . . .’’15 At sentencing, the trial court, sua
sponte, questioned whether the defendant could be con-
victed of both manslaughter in the first degree and
assault in the first degree.
‘‘The Court: It would seem to the court that the assault
conviction on the first count is a lesser included offense
of the manslaughter conviction on the fourth count.
. . .
‘‘[The Prosecutor]: Your Honor, the state’s position
with respect to the assault and the manslaughter [con-
victions] . . . is that they are two separate offenses.
. . .
‘‘[O]ur position is that the defendant is to be sen-
tenced separately on the assault in the first degree and
the manslaughter because we have the head injury
which is separate from the forceful poking which
caused the injuries to the bowel and the mesentery
which are the cause of death. But we have the trauma
to both sides of the head and the 100 milliliters of blood
pooling in the child’s skull cavity, as opposed to the
300 milliliters of blood pooling in her abdominal cavity.
So it’s our position that we have a separate incident
and, therefore, separate sentencing. . . .
‘‘The Court: All right. Well, I’m convinced by the
state’s argument that the assault in the first degree—
more specifically, the head injury—did not contribute
to the cause for death and so that may be a valid consid-
eration. Accordingly, the court will not vacate the con-
viction on the assault in the first degree.’’
In concluding, however, that the defendant’s convic-
tion of assault in the first degree and manslaughter in
the first degree arose from separate transactions, the
court failed to consider that the state, during closing
argument, relied on the injuries to N’s abdomen to sup-
port its position that the defendant was guilty of both
counts.16 In its appellate brief, the state concedes that,
in light of its closing argument, the assault conviction
and manslaughter conviction did arise out of the same
transaction.17 Nonetheless, the state contends that we
should still affirm the defendant’s conviction of assault
in the first degree because it is not a lesser included
offense of the manslaughter conviction. In response,
the defendant argues that one cannot commit man-
slaughter, as it is charged in this case, without also
committing an assault and, therefore, the conviction
for assault in the first degree violates his constitutional
right against double jeopardy.
Before addressing this claim, we note that ‘‘[o]ur stan-
dard of review for analyzing constitutional claims such
as double jeopardy violations prohibited by the fifth
amendment to the United States constitution presents
an issue of constitutional and statutory interpretation
over which our review is plenary.’’ (Internal quotation
marks omitted.) State v. Arokium, 143 Conn. App. 419,
434, 71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d
31 (2013). ‘‘The fifth amendment to the United States
constitution provides in relevant part: No person shall
. . . be subject for the same offense to be twice put in
jeopardy of life or limb . . . . The double jeopardy
clause of the fifth amendment is made applicable to the
states through the due process clause of the fourteenth
amendment. . . . Although the Connecticut constitu-
tion has no specific double jeopardy provision, we have
held that the due process guarantees of [the Connecti-
cut constitution] include protection against double
jeopardy. . . . We have further recognized that the
[d]ouble [j]eopardy [c]lause consists of several protec-
tions: It protects against a second prosecution for the
same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And
it protects against multiple punishments for the same
offense.’’ (Internal quotation marks omitted.) State v.
Underwood, 142 Conn. App. 666, 681, 64 A.3d 1274, cert.
denied, 310 Conn. 927, 78 A.3d 146 (2013).
‘‘Double jeopardy analysis in the context of a single
trial is a [two step] process, and, to succeed, the defen-
dant must satisfy both steps. . . . First, the charges
must arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. Multiple punish-
ments are forbidden only if both conditions are met.
. . . At step two, we [t]raditionally . . . have applied
the Blockburger test to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[W]here the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Porter, 328 Conn. 648, 655, 182 A.3d 625 (2018).
‘‘The test used to determine whether one crime is a
lesser offense included within another crime is whether
it is not possible to commit the greater offense, in the
manner described in the information . . . without hav-
ing first committed the lesser . . . . This . . . test is
satisfied if the lesser offense does not require any ele-
ment which is not needed to commit the greater offense.
. . . Therefore, a lesser included offense of a greater
offense exists if a finding of guilt of the greater offense
necessarily involves a finding of guilt of the lesser
offense.’’ (Citation omitted; internal quotation marks
omitted.) State v. Carlos P., 171 Conn. App. 530, 538,
157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d
321 (2017).
‘‘When conducting the first inquiry, however, it is not
uncommon that we look to the evidence at trial and to
the state’s theory of the case.’’ State v. Schovanec, 326
Conn. 310, 327, 163 A.3d 581 (2017). The second step
of the Blockburger test, however, ‘‘is a technical one
and examines only the statutes, charging documents,
and bill of particulars as opposed to the evidence pre-
sented at trial.’’ (Internal quotation marks omitted.)
State v. Mark, 170 Conn. App. 254, 267, 154 A.3d 572,
cert. denied, 324 Conn. 926, 155 A.3d 1269 (2017). As
we have already acknowledged, the state concedes that
the defendant’s conviction of the charges at issue arises
from the same transaction. We limit our inquiry, there-
fore, to the second step in the analysis: Whether assault
in the first degree, as charged, is a lesser included
offense of manslaughter in the first degree, and, thus,
the two crimes constitute the same offense under
Blockburger.
The defendant argues that his conviction of assault
in the first degree and manslaughter in the first degree
constitutes the same offense because one cannot com-
mit manslaughter without also committing assault in
the first degree as it was charged in this case. In
asserting his claim, the defendant acknowledges that
there is an obvious difference with respect to the result
element for both crimes. Specifically, to be convicted
of manslaughter, the state must show that the defendant
caused the death of another person, whereas a convic-
tion of assault in the first degree only requires proof
of serious physical injury.18 Nevertheless, the defendant
submits that one cannot cause the death of another in
the manner described in the information, without first
causing serious physical injury to that person. We
agree.
The state argues that this case is controlled by State
v. Alvarez, 257 Conn. 782, 783, 778 A.2d 938 (2001),
in which our Supreme Court affirmed a defendant’s
conviction of both manslaughter and assault in the first
degree arising from the same transaction. Upon review,
however, we believe that Alvarez is inapposite.
Although the defendant in Alvarez was charged with
both manslaughter in the first degree and assault in the
first degree, he was charged with assault under § 53a-
59 (a) (1) and (4). Pursuant to this charge, the state
was required to prove that ‘‘the defendant with intent
to cause serious physical injury to [the victim] while
aided by two or more persons actually present did
cause serious physical injury [to the victim] . . . by
means of a dangerous instrument . . . .’’ (Emphasis
added; internal quotation marks omitted.) Id., 790. Here,
the defendant was charged with assault in the first
degree under subsection (a) (3), which only requires
proof that the defendant ‘‘under circumstances evincing
an extreme indifference to human life . . . recklessly
engages in conduct which creates a risk of death to
another person, and thereby causes serious physical
injury to another person . . . .’’ As the defendant in
this case correctly contends, proof that he caused the
victim serious physical injury is subsumed within the
evidentiary requirement, under the manslaughter
charge, that he caused the victim’s death. Unlike Alv-
arez, the state was not required to prove an additional
element, e.g., the assistance of two or more persons
or the use of a dangerous instrument, to convict the
defendant of assault in the first degree.
Additionally, the state argues that the defendant’s
double jeopardy claim fails because there is no legal
requirement that a defendant actually inflict serious
physical injury in order to be held criminally liable
for causing the death of another. We believe that this
assertion conflates the principle that one can be respon-
sible for a person’s death without physically striking
the victim; see, e.g., State v. Spates, 176 Conn. 227, 232,
405 A.2d 656 (1978) (finding trial court did not err when
it instructed that jury ‘‘could convict the defendant of
manslaughter if [it] found that the defendant inflicted
emotional injury, stress or trauma which proximately
caused [victim’s] death’’ [internal quotation marks omit-
ted]); with the present issue of whether one can cause
another’s death without also causing that person seri-
ous physical injury. Considering the theoretical possi-
bilities in this case, and not the evidence, as we are
required to do in the second step of the Blockburger
analysis, we are aware of no conceivable circumstance
in which the defendant could have caused N’s death
without also having caused her serious physical injury
as it is defined under § 53a-3 (4). Accordingly, we con-
clude that a constitutional violation exists that deprived
the defendant of a fair trial.19
As to Golding’s fourth prong, we further conclude,
and the state does not argue to the contrary, that the
error is not harmless. Although we acknowledge that
the court sentenced the defendant to serve a concurrent
sentence for the lesser and greater offenses, we recog-
nize that the conviction of both of the separate offenses,
in their own right, impermissibly harm the defendant.
See State v. Nelson, 118 Conn. App. 831, 855, 986 A.2d
311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).
Thus, pursuant to State v. Polanco, 308 Conn. 242, 255,
61 A.3d 1084 (2013), we remand the case to the trial
court with direction to vacate the conviction of the
lesser included offense of assault in the first degree.20
The judgment is reversed only as to the conviction
of assault in the first degree and the case is remanded
with direction to vacate that conviction; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of the crimes of sexual assault and risk of injury to a child, we
decline to identify the victim or others through whom the victim’s identity
may be ascertained. See General Statutes § 54-86e.
2
Kim testified that the defendant was incarcerated in connection with an
incident of domestic violence against her.
3
See General Statutes § 17a-101 (b) (1).
4
At trial, Kim testified that the defendant had spanked N, causing the
bruises that Kelly observed.
5
Kim first noticed the bruises after she had left N alone with the defendant
on June 22, 2013. The defendant told Kim that N had fallen and hit her head
on the baseboard heater in his bedroom.
6
This text appears to reference the injury that N sustained on June 22,
2013. See footnote 5 of this opinion.
7
Kim saw that the bruising to the right side of N’s head was different
from the bruising that the child had sustained from purportedly hitting her
head on the baseboard heater several days earlier.
8
An autopsy conducted on June 28, 2013, by Susan Williams, an associate
medical examiner, concluded that N died from fatal child abuse syndrome
with blunt abdominal trauma.
9
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
10
The court imposed a mandatory sentence of ten years of incarceration
on count one, the assault in the first degree conviction, to be served concur-
rently with count two. The court imposed a mandatory sentence of twenty-
five years of incarceration on count two, the aggravated sexual assault of
a minor conviction. With respect to count three, the risk of injury conviction,
the court imposed a ten year sentence to be served concurrently with the
sentence on count two. On count four, the manslaughter in the first degree
conviction, the court imposed a sentence of five years of incarceration
followed by fifteen years of special parole, to be served consecutively to
the sentence on count two.
11
General Statutes § 53a-70c (a) provides in relevant part: ‘‘A person is
guilty of aggravated sexual assault of a minor when such person commits
a violation of subdivision (2) of subsection (a) of section 53-21 or section
53a-70, 53a-70a, 53a-71, 53a-86, 53a-87 or 53a-196a and the victim of such
offense is under thirteen years of age, and . . . (3) such person used vio-
lence to commit such offense against the victim . . . .’’
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is guilty
of sexual assault in the first degree when such person . . . (2) engages in
sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
12
Vaginal and perineal swabs taken from N’s body were negative for the
presence of semen. Swabs taken from N’s anal area were positive for proteins
that are present in semen; however, the swabs were negative for the presence
of spermatozoa and male DNA.
13
See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.
Ed. 306 (1932).
14
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life he recklessly engages in
conduct which creates a risk of death to another person, and thereby causes
serious physical injury to another person . . . .’’
15
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
16
During closing argument the state argued: ‘‘As to count one, Your Honor,
the state has proven beyond a reasonable doubt each and every element of
the offense, and he is guilty. When the defendant inflicted blunt force trauma
to [N’s] head, that was reckless conduct and that was conduct in and of
itself that created a risk of [N’s] death. The head trauma did not cause her
death, per se, but it did create the risk of her death, and it was reckless.
And this repetitive trauma to her abdomen was also reckless and that indeed
did, not only cause, but create a risk in [N’s] death as well.
***
‘‘And, finally, Your Honor, as to count four, manslaughter in the first
degree, we have proven each and every element beyond a reasonable doubt.
‘‘When the defendant engaged in repetitive trauma to [N’s] abdomen, he
engaged in reckless conduct. And that conduct also created a grave risk of
death and ultimately caused her death. Dr. Williams testified that she ruled
the cause of death was fatal child abuse syndrome with blunt trauma, and
she called it a homicide, and she indicated that there were hemorrhagic
and necrotic injuries and that she bled to death, which caused her death.’’
17
‘‘The state agrees with the defendant that the conduct alleged in count
one and count four arose out of the same act or transaction because the
state, in closing argument, relied on the injuries to N’s abdomen to support
both the assault and manslaughter convictions.’’
18
General Statutes § 53a-3 (4) defines ‘‘serious physical injury’’ as ‘‘physical
injury which creates a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious loss or impairment
of the function of any bodily organ . . . .’’
19
We note that ‘‘[t]he Blockburger rule is not controlling when the legisla-
tive intent is clear from the face of the statute or the legislative history.
. . . Where there is no clear indication of a contrary legislative intent,
however, the Blockburger presumption controls.’’ (Internal quotation marks
omitted.) State v. Vasquez, 66 Conn. App. 118, 125, 783 A.2d 1183, cert.
denied, 258 Conn. 941, 786 A.2d 428 (2001). The state cites no authority,
nor are we aware of any, that supports the conclusion that the legislature
intended to permit multiple punishments for a single transaction involving
the offenses charged in this case. We defer, therefore, to the Blockburger
presumption that the defendant’s conviction of assault in the first degree,
as charged, is a lesser included offense of manslaughter in the first degree.
20
In vacating the defendant’s conviction of assault in the first degree, we
note that the sentence imposed for this conviction was to run concurrent
with the sentence imposed for the conviction of aggravated sexual assault
of a minor. Accordingly, it is unnecessary to remand this case to the trial
court for resentencing. See State v. Graham S., 149 Conn. App. 334, 346,
87 A.3d 1182 (‘‘we have held that when some of a defendant’s convictions are
reversed, and the trial court clearly intended that a nonreversed conviction
control its sentencing scheme, remand for resentencing is not necessary
where . . . vacating the accompanying sentences will not frustrate the trial
court’s intent’’ [internal quotation marks omitted]), cert. denied, 312 Conn.
912, 93 A.3d 595 (2014).