State v. Albert

719 A.2d 1183, 50 Conn. App. 715, 1998 Conn. App. LEXIS 406
CourtConnecticut Appellate Court
DecidedOctober 13, 1998
DocketAC 15490
StatusPublished
Cited by20 cases

This text of 719 A.2d 1183 (State v. Albert) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Albert, 719 A.2d 1183, 50 Conn. App. 715, 1998 Conn. App. LEXIS 406 (Colo. Ct. App. 1998).

Opinions

Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2)1 and risk of injury [717]*717to a child in violation of General Statutes (Rev. to 1991) § 53-21.2 The defendant’s principal claim is that penetration of the labia majora,3 as charged here, does not constitute sexual assault in the first degree because such penetration does not constitute “vaginal” intercourse as defined in General Statutes (Rev. to 1991) § 53a-65 (2).4 Consequently, the defendant asserts that the trial court (1) should have granted his motion for a judgment of acquittal because neither the allegation nor the evidence of penetration of the labia majora was sufficient to sustain his conviction, (2) improperly instructed the jury that penetration into the genital opening of the victim constituted vaginal intercourse and (3) improperly precluded cross-examination of the victim’s mother with respect to having been sexually molested herself and the victim’s therapist with respect to the mother’s disclosure of that fact to him. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2,1992, the defendant attended a picnic [718]*718at Globe Hollow Pond in Manchester with the victim, N, age three, her mother, her father and her brother. N referred to the defendant, her godfather, as Uncle Ronnie. N testified that while she and the defendant were swimming, the defendant put his hand underneath N’s bathing suit and touched her “inside” her “crotch” with his index finger. The touching caused pain and N screamed. After N screamed, the defendant told her not to tell anyone about the touching. When N started crying, her father took her out of the water and brought her to her mother. While she was crying, N said “bad Uncle Ronnie” several times. Physical examinations by physicians shortly thereafter revealed two scrapes on the inside fold of the labia majora that were typical of recent sexual abuse.

The first count of the original information alleged that the defendant “penetrated the vagina” of the victim with his finger or fingers. During the trial, the state amended the first count of the information to allege that the defendant committed sexual assault by penetrating “the labia majora of the genitalia of a three (3) year old girl with his finger or fingers.” The jury returned a verdict of guilty on both counts of the information and, after denying the defendant’s motion for a judgment of acquittal, the trial court imposed sentence. This appeal followed.

I

A

The defendant’s principal contention is that the conviction cannot stand5 because § 53a-65 [719]*719(2)6 defines sexual intercourse as, inter alia, “vaginal intercourse . ...” He asserts that the information does not charge, nor does the evidence prove, vaginal intercourse. Whether digital penetration that is alleged and proven to have occurred between the folds of the labia majora, but not into the vagina, constitutes vaginal sexual intercourse pursuant to § 53a-65 (2) presents a question of statutory construction.

The defendant claims that no interpretation is necessary because the clear wording of the statute requires that vaginal penetration be alleged and proven to support a conviction. We are aware of the rule of statutory interpretation that where the language of a statute is clear and unambiguous, no construction is necessary and a court simply applies the statute as its words direct. See State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990); State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). We conclude that § 53a-65 (2) is facially ambiguous because it is not clear whether digital penetration of the genital opening is sufficient to complete sexual intercourse or whether such penetration must be into the vagina. Because of this ambiguity, we must turn to recognized principles of statutory construction to ascertain the meaning of the term “sexual intercourse” in the context of this case.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In [720]*720seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

We first address the principle that a statute that imposes criminal liability should be strictly construed and ambiguities normally resolved in favor of the defendant. State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Such strict construction, according to the defendant, precludes us from construing vaginal intercourse as including penetration of the labia majora.

Although the defendant asserts that the doctrine of strict construction is dispositive, that doctrine “is only one of the aids which is to be used in the construction of penal statutes. . . . Other aids include such things as the statutory language itself, legislative history where available, the furthering of the policy and purposes fairly apparent from the statute which include the mischief sought to be proscribed and related statutes.” (Citation omitted.) Singh v. Singh, 213 Conn. 637, 646-47, 569 A.2d 1112 (1990). The Singh court also stated that “[n]o rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope .... It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature].” (Internal quotation marks omitted.) Id., 646. Even where a criminal statute is at issue, our Supreme Court has shown its “disinclination to interpret statutes in a vacuum. . . . Where a court possesses clues to [721]*721the meaning of a statute, there certainly can be no rule of law which forbids [their] use, however clear the words may appear on superficial examination.” (Citation omitted; internal quotation marks omitted.) State v. Golino, 201 Conn. 435, 442, 518 A.2d 57 (1986).

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Cite This Page — Counsel Stack

Bluebook (online)
719 A.2d 1183, 50 Conn. App. 715, 1998 Conn. App. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-albert-connappct-1998.