State v. Gagnon

561 A.2d 129, 18 Conn. App. 694, 1989 Conn. App. LEXIS 208
CourtConnecticut Appellate Court
DecidedJune 27, 1989
Docket6435
StatusPublished
Cited by29 cases

This text of 561 A.2d 129 (State v. Gagnon) 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. Gagnon, 561 A.2d 129, 18 Conn. App. 694, 1989 Conn. App. LEXIS 208 (Colo. Ct. App. 1989).

Opinion

Foti, J.

The defendant appeals from the judgment

of conviction,1 after a jury trial, of criminal impersonation in violation of General Statutes § 53a-1302 and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on the charge of sexual assault in the third degree, (2) in denying his motion to suppress evidence of two out-of-court identifications, (3) in denying his motion to suppress certain evidence seized from the defendant’s home pursuant to a search war[696]*696rant, (4) in admitting certain items into evidence, (5) in admitting certain police identification testimony, and (6) in refusing to poll the jury concerning media coverage of the trial. We find no error.

The jury could reasonably have found the following facts. On the afternoon of March 2, 1987, at approximately 4:15 p.m., the complainant was operating her car in Brookfield. The car had a temporary license plate, which had expired two months earlier, affixed to the rear window. While proceeding on Federal Road, she looked in her rear view mirror and observed a car with a flashing red light behind her. Believing it to be an unmarked police car, she drove to the side of the road and remained in her car. Looking through the rear and side view mirrors, she observed a dark blue car with an antenna on the right side, a red flashing light on the left side of the roof, and a “star-like” emblem or ornament on the front of the hood above the grill. She also observed the male operator of the car exit the vehicle and walk up to the driver’s side window of her vehicle. The complainant had a clear view of him as he approached her vehicle. According to the complainant’s description, the man was tall, walked with a limp, was of average build, and had a mustache, dirty blond hair and a red mark over his right eye. He wore dark blue pants, black shoes, a belt with a silver buckle, and had a shiny silver badge affixed to his left shirt pocket. When the defendant reached the car, he introduced himself as Officer Taylor and informed the complainant that she was driving a car with an unregistered license plate, but that he would “forget about the whole thing” if she went to bed with him. He then reached into the complainant’s car and grabbed her breasts tightly with both hands so that she was pinned to the seat. The victim put her car into gear and sped off, leaving the man standing there mouthing words that she could not hear. The entire incident lasted approximately thirty seconds. [697]*697As a result of the assault, the victim sustained “finger bruises” or “fingerprints” on her breasts that lasted for three weeks to a month and caused her pain and discomfort.

That evening, at approximately 7:30 p.m., the victim reported the incident to the Brookfield police. She gave the police an oral description of her assailant which was transcribed into a two page statement. The police also prepared a sketch of the badge worn by her assailant. The following day the victim returned to the Brookfield police department, and a composite sketch of her attacker was drawn from her description.

The victim made three out-of-court identifications and one in-court identification of the defendant. Other facts relevant to the issues in this appeal will be discussed below.

I

The defendant’s first claim is that the trial court erred in denying his motion for judgment of acquittal. The defendant argues that the state failed to establish beyond a reasonable doubt the elements of sexual assault in the third degree as required by General Statutes § 53a-72a (a) (1) (A). In particular, the defendant relies on State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987), and claims that the state failed to prove that he used “force” to compel the sexual contact. The state maintains that this case is distinguishable from Hufford. We agree with the state.

Although State v. Hufford, supra, presents a similar factual scenario, the pertinent facts of this case are distinct. In Hufford, the victim was sexually assaulted by an ambulance technician while en route to the hospital. After the defendant and another technician had restrained her on a stretcher so that she was unable to move her limbs, she was placed in the rear of the [698]*698ambulance alone with the defendant. The defendant unbuttoned her blouse and unzipped her pants and sexually assaulted her. The defendant was charged and convicted of sexual assault in the third degree pursuant to General Statutes § 53a-72a (a) (1) (A).3 The Supreme Court reversed the defendant’s conviction finding that the defendant did not exert the “force” necessary to compel the sexual assault as required by General Statutes § 53a-72a (a) (1) (A). State v. Hufford, supra. The court explained that to prove the “use of force” element the evidence must demonstrate either “violence or some, other form of physical coercion.” Id., 392.

In reaching this result, the court in Hufford compared sexual assault in the third degree; General Statutes § 53a-72a (a) (1) (A); with sexual assault in the fourth degree; General Statutes § 53a-73a (a) (1) (E); and examined the legislative background of these statutes. The court explained that “[w]hile both statutes proscribe nonconsensual sexual contact, sexual assault in the third degree by use of force contemplates a will overborne by physical coercion, whereas sexual assault in the fourth degree addresses subjection to sexual contact upon a physically helpless person without the victim’s consent under circumstances not necessarily requiring physical force.” Id., 393.

In order to effectuate the sexual assault in Hufford, “[n]either violence, nor physical coercion, nor use of superior strength was necessary” because “[t]he complainant had been legally rendered immobile for transport to the hospital . . . .” (Emphasis added.) State [699]*699v. Hufford, supra, 393. The present case is distinguishable in that the victim in this case was illegally rendered immobile as a result of the defendant’s actions. The defendant, by impersonating a police officer, was able to force the victim to pull her car off the road, thereby rendering her physically helpless. See State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985). We conclude that the defendant’s conduct constituted physical coercion. By using a subterfuge of being a police officer, the defendant caused the victim to stop her vehicle. Such coercion was intended to and did in fact place the victim in a position wherein she was compelled to submit to sexual contact by the defendant.4

We hold, therefore, that on the facts of this case the jury could reasonably have concluded that the defendant used force to compel the complainant to submit to sexual contact, as contemplated by General Statutes § 53a-72a (a) (1) (A). Accordingly, there was no error in the trial court’s denial of the defendant’s motion for judgment of acquittal on that charge.

II

The defendant’s next claim is that his federal and state constitutional rights5 to due process of law were violated by the trial court’s denial of his motion to sup[700]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kondjoua v. Barr
961 F.3d 83 (Second Circuit, 2020)
State v. Juan C.
154 A.3d 39 (Connecticut Appellate Court, 2017)
State v. Holley
Connecticut Appellate Court, 2015
Watson v. Commissioner of Correction
958 A.2d 782 (Connecticut Appellate Court, 2008)
Correa v. Commissioner of Correction
922 A.2d 289 (Connecticut Appellate Court, 2007)
State v. Mahon
905 A.2d 678 (Connecticut Appellate Court, 2006)
State v. Finan
881 A.2d 187 (Supreme Court of Connecticut, 2005)
State v. Finan
843 A.2d 630 (Connecticut Appellate Court, 2004)
State v. Blackwell, No. Cr4-293217 (Apr. 12, 2002)
2002 Conn. Super. Ct. 4390 (Connecticut Superior Court, 2002)
State v. Salmon
783 A.2d 1193 (Connecticut Appellate Court, 2001)
State v. Davis
767 A.2d 137 (Connecticut Appellate Court, 2001)
State v. Iannazzi, No. Cr99-288224 (Apr. 25, 2000)
2000 Conn. Super. Ct. 4857 (Connecticut Superior Court, 2000)
State v. Thompson, No. Cr 18-95928 (Jul. 16, 1999)
1999 Conn. Super. Ct. 9383 (Connecticut Superior Court, 1999)
State v. Carter
708 A.2d 213 (Connecticut Appellate Court, 1998)
State v. Stauckas, No. 085055 (Aug. 11, 1995)
1995 Conn. Super. Ct. 9242 (Connecticut Superior Court, 1995)
State v. Webb
657 A.2d 711 (Connecticut Appellate Court, 1995)
State v. Jaynes
650 A.2d 1261 (Connecticut Appellate Court, 1994)
State v. Von Staats, No. Cr 93 0124284 (Sep. 27, 1994)
1994 Conn. Super. Ct. 9810 (Connecticut Superior Court, 1994)
State v. Von Staats, No. Cr 93 0124285 (Sep. 27, 1994)
1994 Conn. Super. Ct. 9806 (Connecticut Superior Court, 1994)
State v. Von Staats, No. Cr 93 0124283 (Sep. 27, 1994)
1994 Conn. Super. Ct. 9815 (Connecticut Superior Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
561 A.2d 129, 18 Conn. App. 694, 1989 Conn. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gagnon-connappct-1989.