State v. Vumback

791 A.2d 569, 68 Conn. App. 313, 2002 Conn. App. LEXIS 114
CourtConnecticut Appellate Court
DecidedJanuary 25, 2002
DocketAC 21133
StatusPublished
Cited by13 cases

This text of 791 A.2d 569 (State v. Vumback) 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. Vumback, 791 A.2d 569, 68 Conn. App. 313, 2002 Conn. App. LEXIS 114 (Colo. Ct. App. 2002).

Opinions

Opinion

FOTI, J.

The defendant, Ronald Vumback, Jr., appeals from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation General Statutes § 53a-70 (a) (1) and (2), attempt to commit to sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1) and (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant challenges the trial court’s denial of his motion for a bill of particulars and the admission of certain evidence. We affirm the judgment of the trial court.

The court found the following facts. The victim lived with her divorced mother in Wallingford. The victim was six years old in 1990 when her mother met the defendant. In July, 1991, the defendant began living with the victim’s mother, the victim and her sister, and the victim’s grandmother. The victim’s mother and the defendant married in 1992 and had a child of their own in 1995.

From approximately June, 1990, through July, 1996, the defendant repeatedly sexually abused and attempted to sexually abuse the victim. The sexual abuse and attempted sexual abuse occurred in the family home. On July 11,1996, the victim’s mother took the [316]*316victim, who was then twelve years old, to a physician’s office for treatment of a vaginal rash. Mary Peterson, a certified nurse practitioner, saw the victim and preliminarily diagnosed that the rash was likely a manifestation of the herpes virus. On July 17, 1996, the results of a vaginal culture taken from the victim on July 11, 1996, confirmed Peterson’s preliminary diagnosis.

While in the physician’s office on July 17, 1996, the victim’s mother informed Peterson that it was the defendant who had transmitted the herpes virus to the victim.1 The victim explained to Peterson that the defendant had been sexually abusing her for the last six years. In response, Peterson contacted the department of children and families. The victim now resides with her biological father.

The state filed five separate informations. Each information stated that the defendant was accused of offenses against the victim and that such offenses occurred on “divers dates between approximately June, 1990, through July, 1996 . . . .” They further stated that the offenses occurred at the family home and listed the address of that residence. Subsequent to the state’s filing its last information, the defendant filed a motion for a bill of particulars, which the court denied. The defendant was subsequently found guilty of the charges against him, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion when it denied his motions for a bill of particulars and for a new trial because the charges against him lacked sufficient particularity. The defendant claims that this denial violated his due process right to [317]*317notice of the charges against him and that such denial prejudiced his defense. Specifically, the defendant asserts that the state’s failure to provide specific dates of the charged offenses violated his constitutional right to a fair trial. We are not persuaded.

“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. ... A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information.” (Citation omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 653, 607 A.2d 355 (1992).

The defendant asks this court to determine whether the trial court’s denial of his motion for a bill of particulars, in the absence of specific dates in the state’s information, denied him his due process right to notice of the nature of the charges against him. In support of this claim, the defendant makes various overlapping assertions, but essentially argues that the state failed to apprise him of the nature of the charges against him because the state failed to provide the defendant with the “dates, times and places” of the offenses charged. The defendant further argues that the inexactness of the state’s allegations precluded him from presenting an alibi defense.

Our Supreme Court has held numerous times that “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state [318]*318choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Internal quotation marks omitted.) State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

In State v. Blasius, 211 Conn. 455, 559 A.2d 1116 (1989), the state charged the defendant with sexual abuse that it alleged occurred over approximately a six month period. Our Supreme Court held that the state did not breach its duty to inform the defendant of the nature of the charges against him because the state did not know to a “reasonable certainty that the [offenses were] committed within a narrower time frame than that provided in the [information] . . . .” (Internal quotation marks omitted.) Id., 461.

In State v. Saraceno, 15 Conn. App. 222, 234—35, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), the state, “to the best of its ability,” identified in a substitute information the time and date of when the charged offenses of sexual assault occurred. We held that “[t]he general rule in Connecticut is that [t]ime is not an essential ingredient of the crime of [sexual assault].” (Internal quotation marks omitted.) Id., 236. Furthermore, we noted that there was no evidence that the state knew the precise dates of the offenses and deliberately withheld them from the defendant. Id. Had that been the case, “the defendant’s claim . . . would [have been] more convincing.” (Internal quotation marks omitted.) Id.

In State v. Spigarolo, 210 Conn. 359, 363, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), the information alleged that the defendant committed the crimes of sexual assault and risk of injury to a child between October, 1984, and January 3, 1985. Our Supreme Court noted that “[i]t [319]*319would have been virtually impossible to provide the many specific dates upon which the acts constituting the offenses occurred. . . . The reluctance of the court to force the state to furnish the exact dates of the many continuing acts of the defendant during the . . .

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Cite This Page — Counsel Stack

Bluebook (online)
791 A.2d 569, 68 Conn. App. 313, 2002 Conn. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vumback-connappct-2002.