State v. Smith

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STATE OF CONNECTICUT v. STACY SMITH
(AC 37632)
DiPentima, C. J., and Mullins and Flynn, Js.
Argued January 30—officially released June 27, 2017
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Kevin M. Smith, with whom, on the brief, were Nor-
man A. Pattis and Daniel M. Erwin, for the appel-
lant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Christopher Pelosi, senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Stacy Smith,
appeals from the judgment of conviction, rendered after
a jury trial, of sexual assault in the second degree in
violation of General Statutes § 53a-71 (a) (1) (count
one), risk of injury to a child in violation of General
Statutes § 53-21 (a) (2) (count two), sexual assault in
the second degree in violation of § 53a-71 (a) (1) (count
three), risk of injury to a child in violation of § 53-21
(a) (2) (count four), sexual assault in the fourth degree
in violation of General Statutes § 53-73a (a) (1) (count
five), risk of injury to a child in violation of § 53-21 (a)
(2) (count six), and risk of injury to a child in violation of
§ 53-21 (a) (1) (count seven). On appeal, the defendant
claims that (1) his conviction violated his right to due
process under the constitution of Connecticut because
the police lost potentially exculpatory evidence, in the
form of a text message, in violation of State v. Morales,
232 Conn. 707, 720, 657 A.2d 585 (1995), and (2) his
conviction for both sexual assault in the second degree
(counts one and three) and risk of injury to a child
(counts two and four) constituted a violation of his
constitutional right against double jeopardy. We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. The charged events occurred between October,
2007, and October, 2009, when the victim1 was thirteen,
fourteen and fifteen years old. At that time, she lived
with her mother, M, two older brothers, and a younger
sister. Until the end of 2009, the victim’s family social-
ized ‘‘almost every weekend’’ with D, who was the vic-
tim’s godmother and M’s best friend, and D’s sons. In
2006, the victim met the defendant for the first time at
a Dunkin’ Donuts store and learned that he was the
father of D’s oldest son. The defendant was thirty-seven
or thirty-eight years old at the time, recently had fin-
ished serving a prison sentence for federal narcotics
violations, and was living in a halfway house and work-
ing at Dunkin’ Donuts. Shortly thereafter, the defendant
and D resumed their previous relationship, and, in the
winter of 2007, the defendant moved into D’s East Hart-
ford home.
In the summers of 2007, 2008 and 2009, the victim
and her family regularly attended get-togethers at D’s
home with D, her sons, and the defendant. During that
time, the victim also frequently babysat for D’s younger
son at D’s house. On those occasions, the defendant
would often be present. The defendant’s inappropriate
behavior toward the victim started in 2007, when the
victim was socializing with D’s family and babysitting
at D’s house. Specifically, between 2007 and 2008, the
defendant began talking to the victim about sex, he
would caress her calf while they were watching a movie,
and he would show her ‘‘in his phone . . . other girls
he was messing with other than [D], telling [her] things
that he would do with them and . . . what [she] should
do with other guys if [she] was dating someone.’’
In 2008, the defendant began kissing and touching
the victim while she was babysitting or attending social
gatherings at D’s house. The defendant put his fingers in
her vagina and touched her breasts or buttocks multiple
times between October, 2008 and October, 2009. On
one occasion in the summer of 2008, the defendant
performed oral sex on the victim while she was babysit-
ting for D. Although the victim asked him to stop and
tried to push him off of her, he continued for about
thirty seconds and stopped when he heard D’s car pull
into the driveway. On several occasions when the defen-
dant was kissing or touching the victim, he would unzip
his pants and pull out his penis. Although the defendant
asked the victim to perform oral sex on him two or
three times, she refused, and he ‘‘laughed it off.’’
In 2010, the victim’s family stopped socializing with
D’s family because the defendant ‘‘was getting abusive’’
with D, and M did not want her daughters ‘‘to be around
all that arguing.’’ The last time the victim saw the defen-
dant was at a Fourth of July party at D’s house in 2010,
at which the defendant tried to pull the victim into a
room and to kiss her, but she was able to escape.
In January, 2011, the victim told M about the defen-
dant’s actions. The next day, M took the victim to the
East Hartford Police Department, where they met with
Officer Daniel Zaleski. Zaleski spoke with the victim
separately for about twenty minutes, during which time
the victim disclosed the pertinent details about the
defendant’s repeated sexual conduct toward her.
Zaleski then referred the case to a juvenile investigator,
Detective Samuel Kelsey, who investigated sexual
assaults involving minors, and reported the matter to
the Department of Children and Families (department).
On February 1, 2011, after receiving a phone call
from Kelsey requesting to speak with him about the
allegations against him, the defendant voluntarily went
to the East Hartford Police Department and gave a
statement. According to Kelsey, the defendant admitted
to having had ‘‘close contact’’ with the victim ‘‘in an
inappropriate nature, [such] as touching her breast and
vagina.’’ Specifically, during this interview with Kelsey,
the defendant ‘‘said at no time did he have sex with
her; he said he was under the influence of alcohol and
he can’t remember all the events but he does admit
having made contact with her; he said he was very sorry
and that he would like to make amends in any way
deemed necessary, this is not him . . . but that’s no
excuse.’’ After Kelsey reduced the defendant’s state-
ment to writing, the defendant initialed and signed it.
The entire interview lasted approximately forty
minutes.
After the interview, in the lobby of the police station,
the defendant was met by Betzalda Torres, an investiga-
tor employed by the department who was investigating
the alleged physical neglect and sexual abuse of the
victim by the defendant. After Torres reviewed the alle-
gations against him involving the physical neglect and
sexual abuse of the victim, for the purposes of the
investigation by the department, the defendant ‘‘basi-
cally, confirmed that what [the victim] said was correct,
did not deny it, and . . . [he] was feeling apologetic
to the family for what he ha[d] done.’’ The defendant
told Torres that he had been sexually inappropriate
with the victim and that he had had ‘‘many’’ discussions
with her regarding sex and her virginity. During this
interview, the defendant was not specific as to the
details of the actual acts he preformed, but he explained
that his alcohol and drug use played a role and he ‘‘took
full responsibility’’ for being ‘‘sexually inappropriate
toward [the victim].’’
The defendant subsequently was arrested and, fol-
lowing a jury trial, was convicted of two counts of
sexual assault in the second degree, four counts of risk
of injury to a child, and one count of sexual assault in
the fourth degree. The court, Dewey, J., subsequently
sentenced the defendant to a total effective sentence
of thirty years incarceration, followed by five years of
special parole. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that his conviction violated
his right to due process under the constitution of Con-
necticut because the police lost potentially exculpatory
evidence, in the form of a text message, sent from the
defendant to M, in violation of State v. Morales, supra,
232 Conn. 707. Specifically, the defendant argues that
because M showed the text message to Kelsey and
Torres, the East Hartford police and the department
were on notice of the existence of this ‘‘apologetic’’
text message, creating a duty to preserve the evidence,
and that their failure to do so violated his right to due
process under the state constitution.2 The state count-
ers that there is an inadequate record to review the
defendant’s due process claim because he never raised
this issue before the trial court, and, therefore, the court
did not make the findings necessary for us to review
this claim. We agree with the state.
The following facts are relevant to our conclusion.
At the defendant’s trial multiple witnesses testified
regarding the existence of a text message that the defen-
dant sent to MT in February, 2011.3 Specifically, while
being cross-examined by defense counsel, M testified
that the defendant sent her a text message that was a
purported apology for his actions involving the victim.4
During redirect examination by the prosecutor, M fur-
ther testified that she showed this text message to
Kelsey and Torres, but that she did not have a copy of
the text message because her phone had been damaged,
and she no longer had that phone.
Kelsey also testified regarding the text message sent
from the defendant to M while being cross-examined
by defense counsel. Specifically, Kelsey testified that
he had seen the text message that was a purported
apology, but that he did not memorialize it or record
it because he believed that there was probable cause
to arrest the defendant based on the statements he
made regarding the victim.5
During direct examination by the prosecutor, Torres
also testified regarding the existence and contents of
the text message. Torres explained that M showed her
a text message she had received from the defendant
that was apologetic in nature. Torres further testified
that she did not save that text message or make a copy
of it.6
In addition, Detective Frank Napolitano testified that
he submitted an ex parte warrant to obtain M’s cell
phone records and that another detective obtained a
search warrant to obtain the defendant’s cell phone
records. Napolitano further testified that the cell phone
records indicated only that a text message had been
sent from the defendant’s cell phone to M’s cell phone
on the date in question, because too much time had
lapsed for the cell phone company to be able to retrieve
the contents of the text message.7
On appeal, the defendant claims that his conviction
violated his right to due process, under article first, § 8,
of the Connecticut constitution, because the police lost
potentially exculpatory evidence in the form of a text
message that he had sent to M. It is not disputed that
the defendant did not raise his due process claim before
the trial court, and, therefore, he seeks review pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989). In Golding, our Supreme Court held: ‘‘[A]
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail. . . . Id.; see also In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015) (modifying third prong of
Golding by eliminating word clearly before words exists
and deprived).’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Mark, 170 Conn. App. 254,
264–65, A.3d (2017).
We conclude that we do not have a sufficient record
on appeal to consider this claim. See State v. Walker,
147 Conn. App. 1, 28, 82 A.3d 630 (2013) (‘‘although
Golding review requested, because defendant did not
clearly raise state constitutional claim before trial court,
state not put on notice that it was required to defend
against such claim, and, therefore, neither state nor trial
court—nor court on appeal—had benefit of complete
factual inquiry’’), aff’d, 319 Conn. 668, 126 A.3d 1087
(2015).
The defendant’s claim is based on the proposition
that his conviction violated his right to due process
under the constitution of Connecticut because the
police lost potentially exculpatory evidence in the form
of a text message that he sent to M, which M showed
to Kelsey and Torres. ‘‘Therefore, we begin by noting
that it is well established that there are two areas of
constitutionally guaranteed access to evidence such
that denying or foreclosing the defendant’s access to
that evidence may constitute a due process violation.
The first situation concerns the withholding of exculpa-
tory evidence by the police from the accused. . . . The
second situation . . . concerns the failure of the police
to preserve evidence that might be useful to the
accused.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Johnson, 288 Conn.
236, 275–76, 951 A.2d 1257 (2008). It is this second
situation that the defendant claims is applicable in the
present case.
‘‘Despite these constitutional concerns, it is not suffi-
cient under the federal or state constitution for a defen-
dant simply to demonstrate that the police or the state
has failed to preserve evidence. With respect to a due
process violation for failure to preserve under the fed-
eral constitution, the United States Supreme Court has
held that the due process clause of the fourteenth
amendment requires that a criminal defendant . . .
show bad faith on the part of the police [for] failure to
preserve potentially useful evidence [to] constitute a
denial of due process of law. . . . Notably, in [Arizona
v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed.
2d 281 (1988)], the court observed that it had adopted a
higher burden for defendants seeking to demonstrate
a due process violation for failure to preserve evidence
than that applicable to claims that the state has sup-
pressed or withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963) (not requiring defendant to show
bad faith to demonstrate due process violation). The
court in Youngblood explained that it was unwilling to
read the fundamental fairness requirement of the [d]ue
[p]rocess [c]lause . . . as imposing on the police an
undifferentiated and absolute duty to retain and to pre-
serve all material that might be of conceivable eviden-
tiary significance in a particular prosecution.
‘‘In [State v. Morales, supra, 232 Conn. 720], we
rejected the federal bad faith requirement for claims
alleging a failure to preserve in violation of our state
constitution. Rather, we maintained that, in determining
whether a defendant has been afforded due process of
law under the state constitution, the trial court must
employ the . . . balancing test [laid out in State v. Ash-
erman, 193 Conn. 695, 724, 478 A.2d 227 (1984)],
weighing the reasons for the unavailability of the evi-
dence against the degree of prejudice to the accused.
More specifically, the trial court must balance the total-
ity of the circumstances surrounding the missing evi-
dence, including the following factors: the materiality
of the missing evidence, the likelihood of mistaken
interpretation of it by witnesses or the jury, the reason
for its nonavailability to the defense and the prejudice
to the defendant caused by the unavailability of the
evidence.’’ (Citations omitted; internal quotation marks
omitted.) State v. Johnson, supra, 288 Conn. 276–77.
The defendant argues that the record is adequate for
review of his due process claim because it reveals: ‘‘(1)
cause to believe that the lost evidence existed and some
reason to believe it would have helped the defendant;
(2) that the evidence was in the state’s custody at a
relevant point in time; [and] (3) the circumstances of
the loss or destruction of evidence.’’8 The state first
counters by arguing that the factors ‘‘the defendant has
identified are merely some, but not all, of the considera-
tions a trial court would balance in evaluating the four
Asherman factors: materiality; likelihood of mistaken
interpretation; reason for nonavailability to defense;
and prejudice. . . . In particular, the defendant’s fac-
tors do not include whether the missing evidence would
likely be subject to misinterpretation, and whether its
loss prejudiced the defendant.’’ (Citation omitted.) The
state continues by arguing that the first and the third
factors the defendant identified are disputed and, there-
fore, ‘‘[t]o conclude that a verbatim copy of the text
message would have helped the defendant, this court
would have to resolve the conflicting testimony, which
it cannot do on appeal.’’9
After our review of the record, we agree with the
state. We iterate that because the defendant did not
raise this claim before the trial court, the court did not
make factual findings related to any of the Asherman
factors. See State v. Darden, 239 Conn. 467, 469–71,
687 A.2d 132 (1996) (Supreme Court declined to apply
Asherman factors for first time on appeal because
determination of Asherman factors requires factual
findings).10 Without the necessary findings, we are
unable to consider the defendant’s claim on appeal.
Accordingly, the defendant’s claim is not entitled to
Golding review because the record is inadequate for
review. See State v. Walker, supra, 147 Conn. App.
28–29.
II
The defendant next claims that his conviction for
sexual assault in the second degree pursuant to § 53a-
71 (a) (1)11 (counts one and three) and risk of injury to
a child pursuant to § 53-21 (a) (2)12 (counts two and
four) constituted a violation of his constitutional right
against double jeopardy. Specifically, the defendant
argues that rather than the state reciting the language
of the statutes it charged the defendant with violating
in the operative information, the state instead selected
specific acts of sexual assault—digital penetration and
cunnilingus—and charged those as both sexual assault
in the second degree and risk of injury to a child.
According to the defendant, the identification of these
specific acts as the basis for the risk of injury to a child
charges bars the state from arguing that the sexual
assault in the second degree charges were based upon
another contact with the victim. Given his assertions,
the defendant thus maintains that the trial court violated
his right against double jeopardy when it failed to
reverse his conviction for risk of injury to a child in
violation of § 53-21 (a) (2) (counts two and four). In
response, the state argues that the defendant’s double
jeopardy claim fails because sexual assault in the sec-
ond degree and risk of injury to a child are different
offenses. We agree with the state.
The defendant did not raise this claim before the trial
court. He seeks review, therefore, pursuant to Gold-
ing.13 Although the record is adequate for our review
and the claim is of constitutional magnitude, the defen-
dant cannot demonstrate that a constitutional violation
existed that deprived him of a fair trial, and so his claim
must fail. See State v. Mark, supra, 170 Conn. App. 265.
As a preliminary matter, we set forth the applicable
standard of review and relevant legal principles that
govern claims involving the constitutional right against
double jeopardy. ‘‘A defendant’s claim that a conviction
violated his constitutional right against double jeopardy
raises an issue of law; our review of such a claim is
plenary. . . . The United States constitution contains
the guarantee that [n]o person shall be . . . subject for
the same offense to be twice put in jeopardy of life or
limb . . . . The fifth amendment’s prohibition of dou-
ble jeopardy applies to state prosecutions through the
due process clause of the fourteenth amendment. . . .
The double jeopardy clause protects against a second
prosecution for the same offense following acquittal, a
second prosecution for the same offense after convic-
tion and multiple punishments for the same offense.’’
(Citations omitted; internal quotation marks omitted.)
State v. Antwon W., 118 Conn. App. 180, 186–87, 982
A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d
568 (2010). It is the final protection that is implicated
in the present case.
‘‘In determining whether two offenses are the same
offense for double jeopardy purposes, we apply a two
part test. First, we must determine whether the offenses
arose out of the same act or transaction. . . . Second,
we must determine whether the charged crimes consti-
tute the same offense. . . . . Multiple punishments are
a constitutional violation only where both conditions
are met.’’ (Citations omitted; internal quotation marks
omitted.) Id., 187. Accordingly, ‘‘[t]he defendant on
appeal bears the burden of proving that the prosecu-
tions are for the same offense in law and fact.’’ (Internal
quotation marks omitted.) State v. Alvaro F., 291 Conn.
1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct.
200, 175 L. Ed. 2d 140 (2009).
The parties in the present case do not dispute that
the conduct alleged in counts one and two of the infor-
mation arose out of the same act or transaction. Like-
wise, they agree that the conduct alleged in counts three
and four of the information arose out of the same act
or transaction. Accordingly, our analysis focuses on the
second prong of the test, namely, whether the defen-
dant’s conviction of sexual assault in the second degree
under § 53a-71 (a) (1) (counts one and three) and risk
of injury to a child under § 53-21 (a) (2) (counts two
and four) violated the constitutional prohibition against
double jeopardy because those crimes constitute the
same offenses. See id.
‘‘Traditionally we have applied the [test set out in
Blockburger v. United States, 284 U.S. 299, 304, 52 S.
Ct. 180, 76 L. Ed. 306 (1932)] to determine whether two
statutes criminalize the same offense . . . . Under that
test, where the same act or transaction constitutes a
violation 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. . . . This
test is a technical one and examines only the statutes,
charging instruments, and bill of particulars as opposed
to the evidence presented at trial. . . . Thus, [t]he
issue, though essentially constitutional, becomes one
of statutory construction. . . .
‘‘Our courts have addressed the relationship between
risk of injury to a child and the various degrees of
sexual assault in the context of double jeopardy claims
on several occasions, each time concluding that the
two crimes do not constitute the same offense. In State
v. Bletsch, [281 Conn. 5, 28–29, 912 A.2d 992 (2007)], for
example, we . . . concluded that, under the charging
instruments in that case, the crimes of sexual assault
in the second degree under . . . § 53a-71 (a), and risk
of injury to a child under § 53-21 (a) (2), do not consti-
tute the same offense for double jeopardy purposes
because the language of the statutes makes it possible
to have sexual intercourse under § 53a-71 (a) without
touching the victim’s intimate parts under § 53-21 (a)
(2), and vice versa.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Alvaro F., supra, 291
Conn. 7.
The defendant contends, however, that State v.
Bletsch, supra, 281 Conn. 28, is distinguishable from
the present case because in that case the state copied,
nearly verbatim, the language of the statute in which it
charged the defendant with violating in the information.
Contrary to Bletsch, the defendant here contends that
the state alleged exactly the same facts in support of
each of the charged offenses at issue, and, thus, the
specifics contained in the information made count one
the same offense as count two, and count three the
same offense as count four because ‘‘the state necessar-
ily proved the risk of injury to a [child] counts when it
prove[d] the sexual assault in the second degree
counts.’’ We disagree.
The defendant’s argument is based on the precise
language used in the information that set forth the
charges against him. The information filed by the state
alleged in relevant part: ‘‘Count one: The undersigned
Senior Assistant State’s Attorney charges the defendant
. . . with the crime of sexual assault in the second
degree in violation of . . . [§] 53a-71 (a) (1) and alleges
that on or about October 2007–October 4, 2009 in East
Hartford, Connecticut, the defendant engaged in sexual
intercourse to wit: digital intercourse with another per-
son who was thirteen years of age or older but under
sixteen years of age and the defendant was more than
three years older than such person.
‘‘Count two: The undersigned Senior Assistant State’s
Attorney further charges the defendant . . . with the
crime of risk of injury to a [child] in violation of . . .
[§] 53-21 (a) (2) and alleges that on or about October
2007–October 4, 2009 in East Hartford, Connecticut, the
defendant had contact with the intimate parts of a child
under the age of sixteen years and subjected a child
under sixteen years of age to contact with the intimate
parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child to
wit: digital intercourse.
‘‘Count three: The undersigned Senior Assistant
State’s Attorney further charges the defendant . . .
with the crime of sexual assault in the second degree
in violation of . . . [§] 53a-71 (a) (1) and alleges that
on or about 2008 in East Hartford, Connecticut, the
defendant engaged in sexual intercourse to wit: cunni-
lingus with another person who was thirteen years of
age or older but under sixteen years of age and the
defendant was more than three years older than such
person.
‘‘Count four: The undersigned Senior Assistant State’s
Attorney further charges the defendant . . . with the
crime of risk of injury to a [child] in violation of [§] 53-
21 (a) (2) and alleges that on or about 2008 in East
Hartford, Connecticut, the defendant had contact with
the intimate parts of a child under the age of sixteen
years and subjected a child under sixteen years of age
to contact with the intimate parts of such person, in a
sexual and indecent manner likely to impair the health
or morals of such child to wit: cunnilingus.’’
Although the defendant contends that the state pro-
vided the same facts for counts one and two and counts
three and four in the information, our Supreme Court
has previously concluded that ‘‘[i]t is irrelevant that the
state may have relied on the same evidence to prove
that the elements of both statutes were satisfied.’’ State
v. Kirsch, 263 Conn. 390, 421, 820 A.2d 236 (2003).
Rather, ‘‘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.’’ (Internal quotation marks omitted.) Id., 420.
After examining the elements of the charged offenses
in the information, it is clear that § 53a-71 (a) (1) and
§ 53-21 (a) (2) each requires proof of a fact that the
other does not. For counts one and three, to prove that
a defendant is guilty of sexual assault in the second
degree in violation of § 53a-71 (a) (1), the state was
required to establish the following elements: ‘‘(1) a per-
son engages in sexual intercourse,14 (2) with another
person who is thirteen years of age or older but under
sixteen years of age, and (3) the actor is more than two
years older than such person.’’ (Emphasis omitted.)
State v. Rivera, 84 Conn. App. 245, 249, 853 A.2d 554,
cert. denied, 271 Conn. 934, 861 A.2d 511 (2004). In
contrast, for counts two and four, ‘‘[t]o convict the
defendant of risk of injury to a child under § 53-21 [a]
(2), the state must prove that (1) the defendant had
contact with the intimate parts of, or subjected to con-
tact with his intimate parts, (2) a child under the age
of sixteen years, (3) in a sexually and indecent manner
likely to impair the health or morals of such child.’’
(Internal quotation marks omitted.) State v. Alvaro F.,
supra, 291 Conn. 10.
Although those two offenses both share similar char-
acteristics, it is clear that each requires proof of facts
that the other does not. Specifically, ‘‘[r]isk of injury to
a child requires proof that the contact was made in a
sexual and indecent manner likely to impair the health
or morals of the child, while sexual assault in the second
degree does not. Sexual assault in the second degree
requires proof of sexual intercourse, while risk of injury
to a child does not.’’ State v. Rivera, supra, 84 Conn.
App. 249–50. ‘‘Thus, although a defendant may not be
convicted under § 53-21 (a) (2) unless the state proves
that the contact was made in a sexual and indecent
manner likely to impair the health or morals of such
child, there is no such requirement under [§ 53a-71 (a)
(1)].’’ (Internal quotation marks omitted.) State v. Alv-
aro F., supra, 291 Conn. 10. Moreover, this court and our
Supreme Court previously have concluded that sexual
assault in the second degree in violation of § 53a-71 (a)
(1) and risk of injury to a child in violation of § 53-21
(a) (2) are in fact separate offenses. See id. (risk of
injury to child and various degrees of sexual assault do
not constitute same offense for purposes of double
jeopardy); State v. Antwon W., supra, 118 Conn. App.
190–91 (unlike offense of risk of injury to a child in
violation of § 53-21 (a) (2), ‘‘sexual assault in the second
degree in violation of § 53a-71 (a) (1) does not require
proof that the contact was made in a sexual and inde-
cent manner likely to impair the health or morals of
the child’’ [footnote omitted]); State v. Ellison, 79 Conn.
App. 591, 602, 830 A.2d 812 (same), cert. denied, 267
Conn. 901, 838 A.2d 211(2003); see also State v. Bletsch,
supra, 281 Conn. 28 (sexual assault in second degree
and risk of injury to child do not violate double jeop-
ardy, as each offense requires state to prove element
that other does not); State v. Rivera, supra, 84 Conn.
App. 249 (same).
In light of the foregoing, we conclude that the crimes
of sexual assault in the second degree in violation of
§ 53a-71 (a) (1) and risk of injury to a child in violation
of § 53-21 (a) (2) do not constitute the same offense
under Blockburger, as each crime requires proof of a
fact not required by the other.15 Thus, the conduct
alleged in counts one and two do not constitute the
same offense nor does the conduct alleged in counts
three and four. We, therefore, conclude that the defen-
dant’s claim fails under the third prong of Golding
because the constitutional violation he alleges does not
exist. See State v. Golding, supra, 213 Conn. 240.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-
86e.
2
Within this due process claim, the defendant also contends that the text
message had important impeachment value, and its loss deprived him of
‘‘a singular opportunity to counter the state’s narrative of confession and
consciousness of guilt.’’ The defendant further contends that the court should
have issued an adverse inference instruction about the lost text message.
As we further discuss in this opinion, there is an inadequate record to review
the defendant’s due process claim.
3
The specific content of the text message was not entered into evidence
because it could not be retrieved.
4
The following colloquy occurred between the defense counsel and M:
‘‘[Defense Counsel]: ‘‘And after that, either to [Torres] or to the East
Hartford Police Department, you told someone that you had received a text
from [the defendant]. Is that correct?
‘‘[M]: That’s correct. . . .
‘‘[Defense Counsel]: Which—did you tell [Torres] or the police department
first? Do you remember?
‘‘[M]: I can’t remember which one I told . . . first.
‘‘[Defense Counsel]: You—but you wound up telling both, correct?
‘‘[M]: Yes, I did.
‘‘[Defense Counsel]: And both told you to hang on to that text because
it might be important, right?
‘‘[M]: That’s correct. . . .
‘‘[Defense Counsel]: Where is that text now? Did anybody retain a copy
of it?
‘‘[M]: No. . . .
‘‘[Defense Counsel]: Did you delete it?
‘‘[M]: No, I didn’t delete it.
‘‘[Defense Counsel]: Well, where is it?
‘‘[M]: My phone [got] damaged, and I have another phone.’’
5
The following colloquy occurred between defense counsel and Kelsey:
‘‘[Defense Counsel]: Did you actually see the text message?
‘‘[The Witness]: I did read the text message. . . .
‘‘[Defense Counsel]: Okay. Did you make any effort to memorialize it or
record it?
‘‘[The Witness]: No. No, I didn’t.
‘‘[Defense Counsel]: Is there a reason why not?
‘‘[The Witness]: I believe they had probable cause—enough probable cause
with [the defendant’s] statement to submit a warrant. I didn’t really need
that, and it only said he was sorry.’’
6
The following colloquy occurred between the prosecutor and Torres:
‘‘[The Prosecutor]: All right. And at that time, did [MT] show you anything
relative to her phone?
‘‘[Torres]: Yes.
‘‘[The Prosecutor]: What was that?
‘‘[Torres]: It was a text from [the defendant].
‘‘[The Prosecutor]: Okay. And what did the text say?
‘‘[Torres]: I don’t know exactly what the text says, but I recall that it
was an apology in regards to the situation that occurred between him and
[the victim].
‘‘[The Prosecutor]: From your recollection, do you know if he admitted
any conduct in that text?
‘‘[Torres]: Yes.
‘‘[The Prosecutor]: Okay. As a [department] worker, although, you’re not
in charge of criminal investigation, did you save that text at all. . . .
‘‘[Torres]: No, I didn’t.’’
7
Napolitano testified that there were numerous text messages from the
defendant’s number to M’s number, but due to a lapse of time, he was unable
to retrieve them.
8
The defendant, however, has not cited any authority for his assertion
that these factors suffice to establish an adequate record for review of his
claim on appeal.
9
The conflicting testimony consists of testimony from M, Kelsey, Torres,
and the defendant. The testimony from M, Kelsey, and Torres explained
that they had seen the text message sent from the defendant to M and that
the content of the text message was the defendant apologizing for his
behavior toward the victim. By contrast, in testifying that the text message
was not inculpatory, the defendant stated that ‘‘I might have been drinking
and that’s how something could have happened, but as far as I know nothing
has happened, and I didn’t do anything.’’
10
In State v. Walker, supra, 147 Conn. App. 29 n.4, this court further stated:
‘‘Although our Supreme Court in Darden remanded the case to the trial
court to hold an evidentiary hearing and to apply the Asherman balancing
test, such a remand was appropriate in that case because the defendant
had raised a state due process claim before the trial court, and the court
had not conducted the necessary balancing test in light of then newly decided
State v. Morales, supra, 232 Conn. 707. . . . In the present case, the defen-
dant never raised a state due process claim nor asked the court to apply
the now well established Asherman factors. Accordingly, we conclude that
it would be inappropriate to remand the case for an evidentiary hearing.’’
(Citation omitted.) This is analogous to the present case where the defendant
did not raise a state due process claim, ask the trial court to apply the
Asherman factors or request the court to issue an adverse inference instruc-
tion during the trial. Following Walker, we, therefore, conclude that it would
be inappropriate to grant the defendant’s request to reverse his conviction
and to remand the case for a new trial that includes an adverse inference
instruction because the defendant did not raise such issues/requests before
the trial court.
11
General Statutes § 53a-71 (a) (1) provides in relevant part: ‘‘A person
is guilty of sexual assault in the second degree when such person engages
in sexual intercourse with another person and: (1) Such other person is
thirteen years of age or older but under sixteen years of age and the actor
is more than three years older than other such person . . . .’’
12
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony for a violation of subdivision
(2) of this subsection, except that, if the violation is of subdivision (2) of
this subsection and the victim of the offense is under thirteen years of age,
such person shall be sentenced to a term of imprisonment of which five years
of the sentence imposed may not be suspended or reduced by the court.’’
13
As previously discussed in part I of this opinion, under Golding, ‘‘[a]
defendant can prevail on a claim of constitutional error not preserved at
trial only if all of the following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is of constitutional magni-
tude alleging the violation 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 demon-
strate harmlessness of the alleged constitutional violation beyond a reason-
able doubt. In the absence of any one of these conditions, the defendant’s
claim will fail.’’ (Emphasis omitted; internal quotation marks omitted.) State
v. Mark, supra, 170 Conn. App. 264.
14
General Statutes § 53a-65 (2) defines sexual intercourse as ‘‘vaginal
intercourse, anal intercourse, fellatio or cunnilingus between persons regard-
less of sex. Its meaning is limited to persons not married to each other.
Penetration, however slight, is sufficient to complete vaginal intercourse,
anal intercourse or fellatio and does not require emission of semen. Penetra-
tion may be committed by an object manipulated by the actor into the
genital or anal opening of the victim’s body.’’
15
In addition, we note that ‘‘[o]ur analysis of double jeopardy claims does
not end, however, with a comparison of the offenses. The Blockburger test
is a rule of statutory construction, and because it serves as a means of
discerning [legislative] purpose, the rule should not be controlling where
. . . there is a clear indication of contrary legislative intent.’’ (Internal quota-
tion marks omitted.) State v. Mark, supra, 170 Conn. App. 268. ‘‘However,
[w]hen the conclusion reached under Blockburger is that the two crimes
do not constitute the same offense, the burden remains on the defendant
to demonstrate a clear legislative intent to the contrary.’’ (Internal quotation
marks omitted.) State v. Antwon W., supra, 118 Conn. App. 191. In the
present case, the defendant has provided no analysis to demonstrate that
the legislature did not intend the crimes described by § 53a-71 (a) (1) and
§ 53-21 (a) (2) to be separate offenses.