Date: 04-25-2016

Case Style: STATE OF CONNECTICUT v. CARLOS C.*

Case Number: AC 36815

Judge: Raheem L. Mullins

Court: Connecticut Appellate Court

Plaintiff's Attorney: Brett R. Aiello, StephenJ.Sedensky III, Sharmese L. Hodge

Defendant's Attorney: Naomi T. Fetterman, Aaron J. Romano

Description: The defendant, Carlos C., appeals from the judgment of conviction, rendered after a trial to the court, of one count of sexual assault in the first degree inviolationofGeneralStatutes§ 53a-70,andtwocounts of risk of injury to a child, one pursuant to General Statutes § 53a-21 (a) (1) and one pursuant to § 53a-21 (a) (2). On appeal, the defendant claims (1) that there wasinsufficientevidencetosupporthisconviction,and (2) that the court violated his rights to a fair trial and toconfrontationwhenitpermittedtheguardianadlitem to sit near the victim while the victim testified. We affirm the judgment of the trial court. The trial court was presented with the following evidence during the defendant’s criminal trial. The victim was born in 1996. In 2005, the victim’s mother met and begandatingthedefendant.In2006,thevictim’smother moved into the defendant’s home along with the victim and the victim’s younger brother. In 2007, the victim’s mother married the defendant. Initially,thevictimgotalongwellwiththedefendant, but, after they moved into the defendant’s home, the defendant began touching the victim inappropriately. The defendant would rub her thighs or slap her buttocks, and, when the victim would protest, he would offer her money and tell her not to say anything to anyone. The victim began to notice that, although she went to bed with clothing on, when she awoke in the morning, she often was not wearing any clothing. She soon realized that the defendant was entering her bedroomintheearlyhoursofthemorning,afterhermother had left the home to deliver newspapers after 1 a.m. Around this time, the defendant’s sexual assaults escalated. He engaged in penile-vaginal intercourse withthevictimonseveraloccasions,causingthevictim to experience pain, and to bleed on one occasion. During theseassaults, thedefendant removedhis pantsbut kept on his shirt. He also told the victim to be quiet, and he threatened to throw her family out of his home if she told anyone about his assaults. At some point during the 2006–2007 school year, the victim moved into the home of her father, while her mother and her younger brother remained in the home of the defendant. The defendant occasionally would pick up the victim to bring her to his home to see her mother. During these rides, he would inappropriately touch the victim on her thighs and buttocks. In 2012, the victim disclosed this abuse to her boyfriend, who encouraged her to tell someone. On April 7, 2012, the victim disclosed the abuse to her father, who immediately took her to the police station to file a report. The defendant later was arrested and charged with one count of sexual assault in the first degree and two counts of risk of injury to a child.
The defendant elected to be tried by the court. Following the trial, the court found the victim to be credible, specifically stating: ‘‘[T]he court . . . heard the testimony of the complainant . . . [who] was on the stand for almost . . . a full . . . a complete day of testimony. She testified . . . consistently throughout the course of the day. She never wavered in her allegationswithregardtowhathappened.Shehandledcrossexamination and various questions that came at her, again, without changing her story or her consistency.’’ The court also found that the victim ‘‘specifically [had] alleged that there was sexual intercourse by way of vaginal intercourse [that] took place. That there was penetration in that the defendant penetrated by way of his penis her vagina, that there was vaginal intercourse beyond just the touching as part of the risk of injury countswithregardtosexualintercourse[andthecourt] want[ed] to make it clear that that evidence was absolutely on the record and that [the] court credit[ed] her account of the vaginal intercourse as she [had] described it repeatedly throughout the course of her day of testimony.’’ The court, thereafter, convicted the defendant on all counts. This appeal followed. I The defendant claims that the evidence was insufficient to sustain his conviction because there was no physical evidence introduced during the trial, and, therefore,theonlyevidencetosupportthechargeswas the testimony of the victim, who was inconsistent and unreliable. He contends that ‘‘[w]here, as in this case, the witness’ testimony is so discrepant, the court’s determinationofcredibilitywasclearlyerroneous.’’The state responds: ‘‘Because the defendant’s sufficiency of the evidence claim hinges entirely on his challenge to the express, unassailable credibility determination on thepartofthefactfinder,hisclaimmustfail.’’Weagree with the state. ‘‘When reviewing a sufficiency of the evidence claim, we do not attempt to weigh the credibility of the evidence offered at trial, nor do we purport to substitute our judgment for that of the [fact finder]. Instead, our review consists of a two-step process in which we construe the evidence presented at trial in a light most favorable to sustaining the verdict . . . and then determine whether the [fact finder] could reasonably have found, [on the basis of] the facts established and the inferences reasonably drawn therefrom,that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State v. Ortiz, 312 Conn. 551, 572, 93 A.3d 1128 (2014). ‘‘We assume that the [fact finder] credited the evidencethatsupportstheconvictionifitcouldreasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review.
As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factualdeterminationsislimitedtowhetherthosefindings are clearly erroneous. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation oftheirconduct,demeanorandattitude.’’(Internalquotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514–15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). On appeal, the defendant claims that the evidence was insufficient to support his conviction because the victim’s testimony was inconsistent and unreliable. We concludethatthisclaim,forallpracticalpurposes,does not challenge the sufficiency of the evidence. Rather, the defendant seeks to have us examine the credibility of the victim, which we are unable to do. See State v. Franklin, 115 Conn. App. 290, 292, 972 A.2d 741 (defendant’s claim ‘‘that the victim’s testimony was inconsistent and unreliable . . . [not] actually a sufficiency of the evidence claim . . . [because defendant] asksthiscourttoexaminethecredibilityofawitness’’), cert. denied, 293 Conn. 929, 980 A.2d 915 (2009); State v. Michael G., 107 Conn. App. 562, 567, 945 A.2d 1062 (‘‘defendant’s claim, although clothed in sufficiency of theevidencelanguage,inrealitychallengesthecredibility of M’s testimony,’’ which we, on appeal, are unable to assess), cert. denied, 287 Conn. 924, 951 A.2d 574 (2008). ‘‘Because it is the sole province of the trier of fact to assess the credibility of witnesses, it is not our role to second-guess such credibility determinations.’’ State v. Franklin, supra, 292. Accordingly, the defendant’s claim fails. II Thedefendantnextclaimsthatbyallowingtheguardian ad litem to sit closer1 to the victim while the victim testified, the court violated the defendant’s right to a fair trial and his right to confrontation under both the federalconstitutionandthestateconstitution,anddemonstratedpersonalbias.Withrespecttohisdueprocess right to a fair trial claim, the defendant argues that the trial court was not impartial. Specifically, he claims thatbypermittingthisspecialaccommodation,without requiring the state to demonstrate a compelling need for it, ‘‘the complainant has been accorded the status of a ‘child victim’ by the trial court,’’ despite the fact theshewasnearlyeighteenyearsoldwhenshetestified and did not fall within the chronological purview of General Statutes § 54-86g.2 He claims that the court validated the victim’s ‘‘alleged victimization’’ and thereby ‘‘eviscerated [the defendant’s] presumption of innocence.’’ The defendant further argues that the court’s‘‘considerationof[thecomplainant]asa‘victim’ necessarily means that the trial court believed a crime to have been committed, and that the defendant was
thereby guilty. . . . [The court’s] decision [is] devoid of anyevidenceofcompellingneedand[is]representative only of the court’s predetermination of the defendant’s guilt.’’ With respect to his right to confrontation claim, which the defendant included in his appellate brief as part of his due process claim, the defendant contends that the court permitted the guardian ad litem to act as a‘‘buffertoshield[thevictim]fromcross-examination,’’ thereby interfering with his right to confrontation.3 Given that the defendant is not claiming that he was unable to have a face-to-face confrontation with the victim—which he clearly had—we are at a loss to discern in what way the guardian ad litem acted as a ‘‘buffer to shield’’ the victim in violation of his right to confrontation, and the defendant does not explain this in his brief. As such, although he states that he also is making a claim under the confrontation clause, we review this claim under the same rubric as we review hisdueprocessclaim,namely,thattheallegedconstitutional errorhere is thatthe court permittedthis accommodation without requiring the state to show a compelling need for the accommodation, demonstrating the trial court’s bias and predetermination of the defendant’s guilt. The defendant contends that our standard of review for his constitutional claims is one of ‘‘inherent prejudice’’and thatheneednot proveactualharm. Thestate argues that the court did not abuse its discretion in permitting the guardian ad litem to sit near the victim while the victim testified. It also argues: ‘‘Here, the defendant’s claim that the trial court was partial and incapableofdivorcing[thevictim’s]needforanaccommodation from a determination that she was credible is not only unreasonable, but itfails to find any support in the record.’’ The following additional facts are relevant. During direct examination, the prosecutor asked the victim to explain what the defendant would do to her after he removedher clothing.The victimbroke downemotionally and stated that the defendant ‘‘first . . . would begin by touching’’ her. The prosecutor responded: ‘‘That’s okay, if it’s hard, just, you know, try to breathe, take your time, okay . . . .’’ The victim then said she was sorry. Theprosecutor asked for amoment, and the victimwasgivenwaterandtissues.Thecourtthentook a short recess. Followingtherecess,attherequestoftheprosecutor and over the objection of the defendant, the court permitted the guardian ad litem to sit closer to the victim. Specifically, the court ruled that the guardian ad litem could sit closer to the victim ‘‘for whatever moral support thatbrings. But,obviously, nocommunication and no kind of eye direction to testify in one way or the other,okay,thetestimonyhastobejustfromthispartic
ular witness.’’4 After thoroughly considering the defendant’s brief and his reply brief, along with his oral argument before thiscourt,itappearsthattheessenceofthedefendant’s claim boils down to one of judicial bias, but in the form of an alleged structural error in which harm is inherent and need not be demonstrated. Essentially, the defendant argues that, because the trial court permitted the guardian adlitem tosit nearthe victim asan accommodation for the victim, without requiring the state to show a compelling need for the accommodation, the court demonstrated that it had predetermined that the complainant was a victim before the completion of evidence. This, he contends, forced him to endure a trial by a judge who was not impartial and who did not presume his innocence. As a result, he contends, he suffered inherent prejudice.5 We conclude that the defendant’s claim is without merit, as he has failed to demonstrate any lack of impartiality on the part of the trial court. Aclaimofjudicialbiasisaveryseriousmatter.‘‘Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . It is a well settled general rule [however] that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualificationoramotionformistrial.’’(Citationomitted;internalquotationmarksomitted.)Statev. EricM., 79 Conn. App. 91, 102–103, 829 A.2d 439 (2003), aff’d, 271 Conn. 641, 858 A.2d 767 (2004). Nevertheless, our Supreme Court has recognized that ‘‘a claim of judicial bias strikes at the very core of judicial integrity and tendstounderminepublicconfidenceintheestablished judiciary. . . . No more elementary statement concerningthejudiciarycanbemadethanthattheconduct of the trial judge must be characterized by the highest degree of impartiality. If [the judge] departs from this standard, he [or she] casts serious reflection upon the system of which [the judge] is a part. . . . We review this [unpreserved] claim [of partiality], therefore . . . underaplainerrorstandardofreview.’’(Citationsomitted;internalquotationmarksomitted.)Knockv.Knock, 224 Conn. 776, 792–93, 621 A.2d 267 (1993). ‘‘In reviewing a claim of judicial bias, this court employs a plain error standard of review. . . . The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. . . . Any conduct that would lead a reasonable [person] knowing all the circumstancestotheconclusionthatthejudge’simpartiality might reasonably be questioned is a basis for the judge’s disqualification.’’ (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committeev.Burton,299Conn.405,416,10A.3d507(2011). ‘‘The function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . A trial judge in a criminal case may take all steps reasonably necessary for the orderly progress of the trial. . . . When the rights of those other than the parties are implicated, [t]he trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. . . . Moreover, [t]he [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law.’’ (Citations omitted; internal quotation marks omitted.) State v. Torres,60Conn.App. 562,569–70,761 A.2d766 (2000),cert.denied,255Conn.925,767A.2d100(2001). We have examined the record, including the transcript of what transpired at trial, and we conclude the record is devoid of any manifestation of partiality or bias on the part of the trial court. We also point out that the defendant has failed to direct us to anything in the record that would rebut our presumption of impartiality other than his mere allegation that the court’sallowanceofthisproceduredemonstratedsome type of inherently prejudicial bias and partiality.6 See State v. Rizzo, 303 Conn. 71, 119, 31 A.3d 1094 (2011) (‘‘the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . . . and that they are able to put aside personal impressions’’ [citation omitted]); Stefanoni v. Darien Little League, Inc., 160Conn.App. 457, 465, 124 A.3d 999 (2015) (same). Indeed, it is clear from the record that the court was carefultoensurethatthedefendantcouldseethevictim while she testified. The court also ensured that the defendanthadafullandfairopportunitytocross-examine the victim. Thus, when it permitted the guardian ad litemtositnearertothevictimwhilethevictimtestified, overruling the objection of the defendant, the court merely was attempting to make a minor witness more comfortable as she resumed her testimony after having broken down emotionally during her testimony before the recess. There is no indication in this record that the court predetermined the defendant’s guilt or that the court in any way was not an impartial adjudicator. Accordingly, the record disclosed no judicial bias and, therefore, no structural error based on judicial bias. Ultimately, ‘‘[t]he fact that a trial court rules adversely to a [defendant], even if some of these rulings were to be determined on appeal to have been erroneous, does notdemonstratepersonalbias.’’Bieluchv.Bieluch,199 Conn. 550, 553, 509 A.2d 8 (1986).

Outcome: We conclude that the defendant’s claim, therefore, is without merit. The judgment is affirmed.

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