author: Glass, J. Shea, J.,

text:
    State of Connecticut v. Joseph Paolella
    (13210)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued November 1, 1988
    decision released February 14, 1989

      Judith Rossi, deputy assistant state’s attorney, with whom were Steven M. Sellers, assistant state’s attorney, and, on the brief, John J. Kelly, chief state’s attorney, and James G. Clark, assistant state’s attorney, for the appellant (state).

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellee (defendant).
   Glass, J.

In a substitute information filed on May 6, 1987, the defendant, Joseph Paolella, was charged with six criminal offenses. Counts one and two charged the defendant with kidnapping in the first degree with a firearm, in violation of General Statutes § 53a-92a (a), and kidnapping in the first degree, in violation of General Statutes § 53a-92 (a) (2) (A). Counts three and four charged him with sexual assault in the first degree with a deadly weapon, in violation of General Statutes § 53a-70a (a), and sexual assault in the first degree, in violation of General Statutes § 53a-70 (a). Counts five and six charged him with assault in the third degree, in violation of General Statutes § 53a-61 (a) (l), and carrying a dangerous weapon, in violation of General Statutes § 53-206.

The defendant waived a jury trial and was tried to the court. At the close of the state’s case, the defendant made an oral motion for judgment of acquittal on all six counts. Over the state’s objection, the trial court granted the defendant’s motion with respect to the two counts charging him with first degree sexual assault and the count charging him with carrying a dangerous weapon. The state excepted to the trial court’s granting of the defendant’s motion. At the close of all the evidence, the trial court, pursuant to the state’s request, dismissed with prejudice the two first degree sexual assault counts and the count of carrying a dangerous weapon, and granted the state’s request for permission to appeal. The state subsequently filed this appeal in the Appellate Court, claiming error in the trial court’s granting of the defendant’s motion for judgment of acquittal on the first degree sexual assault counts. The appeal was transferred to this court pursuant to Practice Book § 4023. We dismiss the appeal on the ground that double jeopardy bars review of the trial court’s acquittal of the defendant.

I

A

Background Facts

Our disposition of this case requires only a brief recapitulation of the background facts. Evidence presented during the state’s case revealed that the defendant and the complainant were married in May, 1978. Three children were born to them during their marriage. In April, 1986, the couple agreed to be divorced as a result of marital difficulties. On two occasions during April and May, 1986, the complainant took the children and left the marital home in North Haven to stay elsewhere because of her deteriorating relationship with the defendant. After leaving their North Haven home the second time, the complainant returned when the defendant moved out to stay with relatives. During this period, the defendant filed a divorce action, notice of which was served on the complainant. When he later intimated that he wished to withdraw the divorce action, the complainant filed a cross complaint for divorce. In addition, in May, 1986, the complainant obtained restraining orders ordering the defendant to refrain from harassing or assaulting her.

The several charges against the defendant arose from incidents alleged to have taken place on May 25 and 26,1986. The state presented evidence that the defendant had sexually assaulted the complainant on May 25, 1986, in the North Haven marital home. Ultimately, the trial court found the defendant not guilty of count two, kidnapping in the first degree, but found him guilty of kidnapping in the second degree with a firearm, in violation of General Statutes § 53a-94a (a), a lesser included offense of count one, and count five, assault in the third degree. The defendant’s convictions on those charges are not at issue in this appeal.

B

Facts Pertaining to the State’s Appeal

In making his oral motion for judgment of acquittal, pursuant to Practice Book § 884, the defendant argued that he was exempt from prosecution for violating §§ 53a-70 (a) and 53a-70a(a) because, under General Statutes § 53a-65 (2), the definition of “sexual intercourse” applicable to those offenses is expressly limited to persons who are not married to each other. The state claimed, however, that the marital exemption was inapplicable because the parties no longer maintained a “viable” marriage despite their continued legal marital status, and that the marital exemption of § 53a-65 (2) conceivably violated equal protection guarantees. In granting the defendant’s motion for judgment of acquittal on the two first degree sexual assault counts, the trial court stated: “I would make it quite clear, however, on the record, that the Court[’s] granting of [the defendant’s] Motion for Judgment of Acquittal . . . is based on the fact that the evidence demonstrates quite clearly that these two people were married on [the] day [of the alleged assault]. Certainly there is ample evidence at this point for the court to find that the other, the basic elements of the rape have been proven. The basis of the ruling as I indicated is the opinion of the Court that the spousal exemption is valid and the evidence indicates clearly . . . that these parties were still legally married on that day, and it is for that reason I am granting the Judgment of Acquittal as to these two counts.”

The state excepted to the court’s ruling and requested permission to appeal. It argued that an appeal was not barred by double jeopardy because the question of the marital exemption’s applicability was “simply a legal question.” The defendant, however, claimed that an appeal was improper because the trial court’s ruling was based on a flaw in the state’s evidence. The trial court reserved a ruling on the state’s request for permission to appeal, but stated: “I’m not sure I would call it an evidentiary failing. What I did is grant [the defendant’s] Motion for Judgment of Acquittal because I believe the statutory exemption ... is clear and . . . has been proven, the fact that they are legally married, and I did not accept [the state’s] . . . legal argument that the exemption does not apply to people who are not married in fact .... I have no hesitation in finding [as] a fact that on the date of this offense these people were not married in fact. They were married in law but not in fact.”

When the trial concluded on May 29,1987, the trial court granted the state’s motion to dismiss with prejudice the first degree sexual assault counts, and also granted the state’s request to appeal. The judgment, filed on May 29, indicated that the defendant was acquitted of the sexual assault counts. Pursuant to the state’s motion, however, the judgment file subsequently was amended to indicate that the trial court, on May 29, 1987, had dismissed with prejudice the first degree sexual assault counts and had granted the state permission to appeal. On June 6, 1987, the state filed its appeal, indicating that it was appealing from the judgment, rendered on May 29,1987, acquitting the defendant of the first degree sexual assault counts.

After filing its appeal, the state filed two questions seeking the trial court’s articulation pertaining to the disposition of the first degree sexual assault counts. To the first question, “[d]id the trial court evaluate the state’s evidence on the elements of §§ 53a-70 and 53a-70a, and acquit the defendant on those counts, by making a determination of factual innocence,” the trial court responded, “[y]es.” (Emphasis added.) To the second question, “[d]id the trial court dismiss the sexual assault counts on the legal ground that the marital exemption barred prosecution,” the trial court responded, “[n]o.”

On appeal, the state reiterates the claims made at trial (1) that the marital exemption of § 53a-65 (2) does not apply to persons who are no longer married “in fact,” whether or not they are still legally married, and (2) that the marital exemption violates equal protection guarantees of the federal and Connecticut constitutions by denying to female victims married to their assailants the same protections accorded female victims not married to their assailants. Further, the state asserts that its appeal is proper because the trial court’s disposition of the first degree sexual assault counts turned solely on the legal question of the applicability of § 53a-65 (2). The defendant asserts two jurisdictional defects to the state’s appeal, claiming (1) that the state has not appealed from a final judgment, and (2) that double jeopardy bars appellate review of the trial court’s judgment of acquittal. We conclude that there was a final judgment and that the judgment was a true acquittal for double jeopardy purposes, therefore barring us from reviewing the state’s claims.

II

The defendant first claims that the state improperly appealed from a “partial judgment.” He argues that the state sought to appeal from the trial court’s action granting the motion for judgment of acquittal made at the close of the state’s case. He further asserts that because the appeal was not taken from the imposition of a sentence, nor from an appealable interlocutory order; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); the appeal was not taken from a “final judgment,” and, therefore, must be dismissed. The state maintains that its appeal is from the trial court’s judgment of May 29, 1987, dismissing with prejudice the first degree sexual assault counts. The state argues that the trial court had the authority to modify its prior action granting the defendant’s motion for judgment of acquittal to a dismissal with prejudice; see State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986); and that a dismissal with prejudice is a final judgment from which the state may take an appeal.

General Statutes § 54-96 permits the state to appeal from rulings and decisions of the Superior Court upon questions of law arising in criminal trials. Appellate jurisdiction is limited to appeals from final judgments. See General Statutes § 52-263; State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983). “The appealable final judgment in a criminal case is ordinarily the imposition of sentence. State v. Curcio, supra, 31; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We have recognized, however, in both criminal and civil cases, that certain otherwise interlocutory orders may be final judgments for appeal purposes. . . . ‘An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ State v. Curcio, supra, 31, citing State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979).” State v. Southard, supra, 509-10. Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that results in a dismissal of the appeal. Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974).

The defendant incorrectly identifies the trial court’s action granting the motion for judgment of acquittal as the order from which the state sought to appeal. The trial court did not render judgment on the granting of that motion, or grant the state permission to appeal, until the conclusion of the trial on May 29,1987. Practice Book § 884 requires the trial court to rule on a motion for judgment of acquittal made at the close of the state’s case at the time it is made, but does not require the court to render judgment on a ruling granting the motion at that time. Further, the state’s appeal form, which indicates that the appeal was sought from the May 29, 1987 decision “granting the defendant’s motions for judgment of acquittal,” clearly demonstrates that the state has appealed from the judgment rendered on the motion at the conclusion of the trial. Thus, the record establishes that the state has appealed from the May 29,1987 judgment rendered on the trial court’s mid-trial action granting the defendant’s motion for judgment of acquittal.

The finality of a judgment of acquittal under General Statutes § 52-263 is self-evident. See State v. Avcollie, 178 Conn. 450, 452, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980) (state appeals from judgment of acquittal rendered by trial court after setting aside jury verdict of guilty). Such a judgment concludes the rights of the parties regarding the charges of which the defendant has been acquitted. See State v. Curcio, supra. Further, a judgment of acquittal achieves the same finality as the imposition of a sentence since it terminates the prosecution of the charges to which it applies and negates the possibility of an imposition of a sentence. Because the present appeal was taken from a judgment rendered at the conclusion of the trial, the state’s appeal does not implicate the problems of “ ‘delays and disruptions attendant upon intermediate appeal[s],’ which the [final judgment] rule is designed to avoid . . . .” State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982); see also Burger & Burger, Inc. v. Murren, 202 Conn. 660, 663, 522 A.2d 812 (1987). We conclude that the judgment rendered on the trial court’s action granting the defendant’s motion for judgment of acquittal was an appealable “final judgment.”

Ill

The defendant next claims that double jeopardy bars the state’s appeal. The double jeopardy clause of the fifth amendment to the federal constitution prohibits the prosecution of appeals from judgments of acquittal. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977); see also State v. Evans, 205 Conn. 528, 537, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988) (double jeopardy protections incorporated into due process clause of article first, § 8, of Connecticut constitution). Although the trial court characterized its disposition of the first degree sexual assault counts during the trial as an “acquittal” and in the amended judgment file as a “dismissal with prejudice,” neither characterization is dispositive. This court must make its own inquiry into the trial court’s disposition to determine, for double jeopardy purposes, whether the court “acquitted” the defendant of the two first degree sexual assault counts. See United States v. Scott, 437 U.S. 82, 96, 98 S. Ct. 2187, 57 L. Ed. 2d 65, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 197 (1978) (trial court’s characterization of action not dispositive); State v. Evans, supra, 534 (issue is whether ruling resolved some or all of factual elements of offense charged, regardless of label).

“Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ United States v. Ball, 163 U.S. 662, 671 [16 S. Ct. 1192, 41 L. Ed. 300] (1896).” United States v. Martin Linen Supply Co., supra, 571. “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, supra, 91. An “acquittal” results from “a resolution, correct or not, of some or all of the factual elements of the offense charged”; United States v. Martin Linen Supply Co., supra, 571; or from the trial court’s conclusion that the state has failed to present sufficient evidence to rebut a defendant’s essentially factual defense. United States v. Scott, supra, 97-98; Burks v. United States, 437 U.S. 1, 4, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

The state argues that double jeopardy does not bar its appeal because (A) the trial court’s disposition of the first degree sexual assault counts was based on a legal matter unrelated to the defendant’s guilt or innocence; (B) even if the marital exemption of § 53a-65 (2) requires proof of marriage, the exemption is a “non-exculpatory defense” not implicating the defendant’s criminal responsibility; and (C) even if the defendant had been “acquitted,” a reversal of the trial court’s decision would not subject the defendant to another trial. We are not persuaded.

A

As noted above, General Statutes § 53a-65 (2), which defines the sexual intercourse prohibited under §§ 53a-70 (a) and 53a-70a (a), excludes married people. Under this statutory scheme, a defendant married to the alleged assault victim cannot be found guilty of violating those sexual assault statutes. A finding of non-culpability based on the “marital exemption” of § 53a-65 (2) necessarily depends upon proof of the fact that the victim and the defendant were legally married. See State v. Scott, 11 Conn. App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987) (marital exemption not available where defendant failed to produce any evidence that he and victim were married). Under §§ 53a-70 (a) and 53a-70a (a), a finding by the trier that the alleged offender and the victim were married exonerates the alleged offender, regardless of the proof of forcible sexual intercourse.

In the present case, the state’s presentation of the complainant’s testimony established that the defendant and the complainant were married on the day of the alleged assault. This evidence was, in essence, an admission by the state that the couple were married. As such, it constituted a “failure of evidence” pertaining to the sexual assault counts. Burks v. United States, supra. Consequently, the defendant’s acquittal on the sexual assault counts turned on a factual basis related to his guilt or innocence of the offenses charged. United States v. Scott, supra.

The state’s claim that the trial court’s disposition of the first degree sexual assault counts was based solely on the court’s legal conclusion that § 53a-65 (2) applied to exclude all married offenders and victims, regardless of the quality of their marital relationship, is directly controverted by the trial court’s posttrial articulation. Although at trial the court indicated that it was “not sure [that its granting of the motion for judgment of acquittal was based on] an evidentiary failing” of the state’s case, the court’s articulation, made upon the state’s motion, definitely establishes that the court had based its disposition of the first degree sexual assault counts on a factual determination that the parties were married. As the state conceded before the trial court in a posttrial hearing, the court’s articulation that its disposition was based on a “factual” rather than “legal” ground rendered “academic” the state’s motion to amend the printed record to reflect that the trial court “dismissed” the first degree sexual assault counts.

Further, we disagree with the state’s related argument that double jeopardy does not bar its appeal because the defendant deliberately chose to forego a pretrial hearing on his marital exemption claim. We first note that the record discloses that the defendant did seek to dismiss the sexual assault counts prior to trial, but that the trial court never ruled on his motion. Moreover, the tacit premise of the state’s argument appears to be that it was the defendant’s obligation to ensure that the state charged him with a crime corresponding to the facts likely to be adduced at trial. We are not persuaded that a criminal defendant must oblige the state in this manner in order to invoke the protections of the double jeopardy clause.

The state also claims that, under United States v. Scott, supra, a defendant may not insulate a legal issue from appellate review by securing on his own initiative a mid-trial termination of the proceedings on a basis unrelated to his factual guilt or innocence. It also points to the language in United States v. Scott, supra, 96-97, that “an appeal is not barred simply because a ruling in favor of the defendant ‘is based upon facts outside the face of the indictment’ ... or because it ‘is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged . . . . ’ ” See also State v. Evans, supra.

Our discussion above makes it clear that the trial court’s action granting the defendant’s motion for judgment of acquittal at mid-trial terminated the prosecution of the sexual assault counts on a basis directly related to his guilt or innocence. Moreover, the language of United States v. Scott suggesting that an appeal is not barred simply because the trial court relies on facts outside the indictment in disposing of the charges cannot be fully comprehended without examining the facts of that case. In United States v. Scott, supra, 84, the defendant moved to dismiss the first count of an indictment on the ground of pre-indictment delay. The District Court granted the motion to dismiss at the close of all the evidence. Upon the government’s appeal, the defendant claimed that double jeopardy barred the appeal. The United States Supreme Court rejected this claim, concluding that the motion to dismiss based on pre-indictment delay was not related to the defendant’s factual guilt or innocence of the crime charged. Id., 98-99. Similarly, in State v. Evans, supra, 533, the trial court granted the defendant’s motion to dismiss on the basis that the state had failed to apprise the defendant of the exact date of the alleged sexual offense, thereby compromising the defendant’s ability to present an effective alibi defense. In granting the motion to dismiss, the trial court stated that “ ‘[this decision] is in no way related to my opinion as to whether or not the defendant is guilty or not guilty of these charges. . . .’ ” Id. We concluded that “[b]ecause the motion to dismiss was granted at the request of the defendant, and because no evidence has been presented to enable the trier to make any factual determination in this case . . . the dismissal [does not bar] . . . the state’s appeal . . . . ” Id., 539.

In the present case, the “fact outside the indictment” resulting in the defendant's acquittal was an evidentiary fact intrinsically related to the defendant’s guilt or innocence of the offense charged. In United States v. Scott, supra, and State v. Evans, supra, however, the dismissals were based on procedural matters unrelated to the defendant’s guilt or innocence. Thus, the principle that double jeopardy may not apply in certain circumstances even where the trial court refers to matters outside the information in disposing of the counts in the defendant’s favor has no application to the present case.

B

The state also argues that an “acquittal” based on the marital exemption of § 53a-65 (2) is not an “acquittal” for double jeopardy purposes. Relying on United States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979), cert. denied, 446 U.S. 954, 100 S. Ct. 2922, 64 L. Ed. 2d 811 (1980), the state asserts that the marital exemption is a “non-exculpatory” defense that has no bearing on the accused’s factual guilt or innocence. The state’s position, however, is flatly contradicted by judicial interpretation of § 53a-65 (2).

In State v. Scott, supra, 112, our Appellate Court held that “[o]n the basis of the common law and statutory history from which General Statutes §§ 53a-65 and 53a-70 (a) evolved, the logic of the various provisions of the sexual assault statutes, and case law in other jurisdictions, we conclude that the absence of a marital relationship between the defendant and the victim of a sexual assault is not an essential element of the crime. Rather, the existence of a marital relationship can be raised as an exemption or defense to prosecution for sexual assault in the first degree under § 53a-70 (a).” The Appellate Court noted that “[t]he general rule at common law was that . . . marriage [of the defendant and the victim] was a matter of defense”; id., 113; and concluded that it was clear that § 53a-65 (2) incorporated the common law marital exemption as a defense to prosecution under §§ 53a-70 and 53a-70a. Id., 118.

As the court in United States v. Moore, supra, noted, “essentially factual” defenses relating to the ultimate question of guilt or innocence include those which “ ‘necessarily [establish] the criminal defendant’s lack of criminal culpability.’ ” Id., 1036, quoting United States v. Scott, supra, 98. Under the Appellate Court’s interpretation in State v. Scott, supra, § 53a-65 (2) does not merely operate as a procedural bar to prosecution under §§ 53a-70 and 53a-70a (a). The accused’s marital relationship with the victim necessarily establishes his lack of criminal culpability under §§ 53a-70 (a) and 53a-70a (a). United States v. Scott, supra; United States v. Moore, supra.

C

The state finally asserts that even if the trial court’s action is deemed to be an acquittal, its appeal is not barred by double jeopardy because a reversal of the trial court’s decision would not subject the defendant to a retrial. It argues that the trial court found as a fact that the other elements of the first degree sexual assault counts had been established. It claims that no retrial would be necessary because the trial court directed the defendant to present his evidence pertaining to the existing counts, that the defendant did so, and that in the course of doing so the defendant denied that the sexual assault had taken place. Consequently, the state maintains, if we reversed the trial court’s acquittal on the legal ground that § 53a-65 (2) does not exclude persons who are not married “in fact,” on remand the trial court could render a judgment of guilty on the first degree sexual assault counts. United States v. Martin Linen Supply Co., supra.

We acknowledge that “where a [state’s] appeal [from an acquittal] presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended . . . . ” Id., 569-70. Generally, this exception to the double jeopardy bar arises where the trial court renders a judgment of acquittal after setting aside a valid jury verdict of guilty. Id., 570. “Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.” United States v. Wilson, 420 U.S. 332, 344-45, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975); see also State v. Avcollie, supra, 453.

The fundamental flaw in the state’s argument is that the trial court’s comments, made at the close of the state’s case, that “[c]ertainly there is ample evidence at this point for the Court to find that the other, the basic elements of the rape have been proven,” scarcely resemble a verdict of guilty. Moreover, the trial court did not direct the defendant to defend against the first degree sexual assault counts after it had granted the motion for judgment of acquittal. If the trial court’s decision were reversed, further proceedings would be necessary to protect the defendant’s due process rights to notice of the charges against him and to present a defense. Cf. State v. Flower, 176 Conn. 224, 226, 405 A.2d 655 (1978) (where no record upon which determination of guilt could be made without further proceedings, double jeopardy barred appeal).

Because the trial court acquitted the defendant of the two first degree sexual assault counts, double jeopardy bars us from considering the state’s claim that § 53a-65 (2) does not exclude from the definition of sexual intercourse persons who, although legally married, are separated and are no longer married “in fact.” Even assuming that the state’s contention is correct, the trial court’s acquittal of the defendant may not be reviewed on appeal “even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States, 437 U.S. 54, 64, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978). As the Court of Appeals for the Ninth Circuit aptly stated, “[ijnasmuch as we find the judgment below to be a true acquittal, the Double Jeopardy Clause bars appeal even if the [trial] court based the acquittal on an erroneous interpretation of governing legal principles or upon legal principles which are themselves overturned.” United States v. Schwartz, 785 F.2d 673, 678 (9th Cir. 1986); see also United States v. Scott, supra, 98 (acquittal resulting from erroneous interpretation of law affects accuracy of determination but does not alter its essential character).

The state’s appeal is dismissed.

In this opinion Peters, C. J., Healey, Callahan, Covello and Hull, Js., concurred.

Shea, J.,

concurring. I agree with the conclusion of the majority that the acquittal of the defendant with respect to the two counts of first degree sexual assault in violation of General Statutes §§ 53a-70a and 53a-70 cannot be reviewed because it is a factually based determination entitled to constitutional protection against double jeopardy. It is quite clear from the transcript, however, that the finding of fact on which the trial court relied in acquitting the defendant was the existence of a marital relationship between him and the complainant. The court expressly found that “the basic elements of the rape had been proven” but that “the parties were still legally married on that day.”

The majority purports not to review the state’s claim that the marital exemption in General Statutes § 53a-65 (2) does not apply where the marriage has terminated “in fact,” although the legal relationship continues. The majority declares, nevertheless, that “nonculpability based on the ‘marital exemption’ of § 53a-65 (2) depends upon proof of the fact that the victim and the defendant were legally married,” a view that coincides with that expressed by the trial court in rejecting the state’s claim. I, too, agree that the legislature intended the existence of the legal marital bond to preclude a prosecution for first degree sexual assault regardless of whether the marriage is viable in fact, but I disagree with the majority that the double jeopardy principle bars a review of that claim.

If the state’s interpretation of the marital exemption provision were correct, the fact that the marriage between the defendant and the complainant had not terminated in law would be of no consequence. The undisputed existence of the legal bond would not, therefore, constitute an “evidentiary insufficiency” under Burks v. United States, 437 U.S, 1,18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), or a factual determination related to guilt or innocence under United States v. Scott, 437 U.S. 82, 92, 98 S. Ct. 2187, 57 L. Ed. 2d 65, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 197 (1978). The trial court made it perfectly clear in granting the motion for acquittal that its determination rested wholly upon the undisputed fact that the marriage had not terminated legally and its legal conclusion that the marital exemption was therefore applicable. If that interpretation of the statutes were erroneous, it could not be said that the acquittal rested upon a finding of any fact pertaining to guilt or innocence, as is essential for double jeopardy to apply. Where it is clear that an acquittal is based on a ground other than the resolution in the defendant’s favor of some or all of the factual elements of the offense charged, the state is not barred from seeking another trial. Id., 97; United States v. Kennings, 861 F.2d 381, 386 (3d Cir. 1988).

For similar reasons, I believe it is necessary to resolve the state’s claim that a construction of the marital exemption to apply to marriages existing in law but terminated in fact violates principles of equal protection. If the claim were sound, this court would be obliged either to construe the exemption in accordance with the state’s claim or to declare it ineffective as being constitutionally invalid, thus rendering immaterial the finding that the legal bond between the defendant and the complainant persisted. Having reviewed the state’s constitutional claim in this respect, however, I conclude that it is absolutely meritless. It is too plain to require elaboration that the legislature had a rational basis for making the readily demonstrable existence of the legal matrimonial bond rather than the vagueness of such a standard as the viability of a marriage in fact the criterion for distinguishing the crime of sexual assault in the first degree in violation of §§ 53a-70a and 53a-70 from the related offense of sexual assault in spousal or cohabiting relationships in violation of General Statutes § 53a-70b.

Accordingly, I agree with the result reached by the majority.

       General Statutes § 53a-92a (a) provides: “A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”
      General Statutes § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually.”

       “[General Statutes] Sec. 53a-70a. sexual assault in the first degree WITH A DEADLY WEAPON: CLASS B FELONY; FIVE YEARS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree with a deadly weapon when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a deadly weapon. No person shall be convicted of sexual assault in the first degree and sexual assault in the first degree with a deadly weapon upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”
      “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class B felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes § 53a-61 (a) (1) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person.”

       General Statutes (Rev. to 1985) § 53-206 provides in relevant part: “Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, or any other dangerous or deadly weapon or instrument, unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both.”

       The state has not appealed from the judgment rendered on the trial court’s action granting the defendant’s motion for judgment of acquittal on count six, charging the defendant with carrying a dangerous weapon.

       “[General Statutes] Sec. 53a-94a. kidnapping in the second degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of kidnapping in the second degree with a firearm when he kidnaps in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the second degree and kidnapping in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       See footnote 3, supra.

       Practice Book § 884 provides: “If the motion [for judgment of acquittal] is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present his case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so.”

       General Statutes § 53a-65 (2) provides: “As used in this part, except section 53a-70b, the following terms have the following meanings ....
      “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio aiid does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       Practice Book § 819, which was in effect at the time of the trial, provided in pertinent part: “If the dismissal is with prejudice . . . the prosecuting authority may, where he is entitled by law, appeal the dismissal . In State v. Ross, 189 Conn. 42, 49, 454 A.2d 266 (1983), we held that a dismissal with prejudice under Practice Book § 819 was “unquestionably” a final judgment from which the state could appeal. Practice Book § 819 was repealed as of October 1, 1987.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       “[General Statutes] Sec. 52-263. appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8, 8-9, 8-28 and 8-30.”
      See also General Statutes § 51-197a (governing appeals from final judgments of Superior Court to Appellate Court).

       As we discuss below, double jeopardy barred the trial court from “modifying” its action granting the motion for judgment of acquittal to a “dismissal with prejudice.” Consequently, we read the judgment file as it existed prior to the amendment indicating that the first degree sexual assault counts were dismissed with prejudice. In its original state, the judgment file indicated that the trial court, at the close of the case, rendered judgment on its action granting the defendant’s motion for judgment of acquittal.

       Although we reach a result on this issue favorable to the state, we do not agree with the state’s position that the final judgment in this case was the trial court’s dismissal with prejudice of the sexual assault charges. In State v. Wilson, 199 Conn. 417, 432-33, 513 A.2d 620 (1986), we addressed the question whether the trial court had jurisdiction to amend a finding in its original written memorandum of decision some three years after that memorandum had been filed. We stated that “ ‘[djuring the continuance of a term of court the judge holding it has, in a sense, absolute control over judgments rendered; that is, he can declare and subsequently modify or annul them.’ ” Id., 436. “Neither our General Statutes nor our Practice Book rules define the period during which a trial court may modify or correct its judgment in a criminal case. On the civil side, however, Practice Book § 326 provides that any civil judgment . . . may be opened or set aside ‘within four months succeeding the date on which it was rendered or passed.’ We see no reason to distinguish between civil and criminal judgments in this respect, and we therefore hold that... a criminal judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final.” (Emphasis in original.) Id., 437. The state argues that, because the trial court “modified” its original action granting the defendant’s motion for judgment of acquittal to a dismissal with prejudice within the four month period prescribed by Wilson, the controlling order for purposes of appeal was the trial court’s dismissal with prejudice. Because we conclude below, however, that the trial court’s disposition of the first degree sexual assault counts was a “true” acquittal for double jeopardy purposes, it necessarily follows that, once the court had granted the defendant’s motion for judgment of acquittal, it could not thereafter “modify” that order by “dismissing” the counts. As a consequence, Wilson is inapplicable to the present case.

       We note that General Statutes § 53a-70b, enacted in 1981; see Public Acts 1981, No. 81-27; provides in pertinent part: “(b) No spouse or cohabitar shall compel the other spouse or cohabitar to engage in sexual intercourse by the use of force ... .” The limitation of General Statutes § 53a-65 (2), excluding married persons from the definition of sexual intercourse, does not apply to prosecutions under § 53a-70b. See State v. Suggs, 209 Conn. 733, 553 A.2d 1110 (1989); State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985).

       Our disposition of this case does not require us to determine whether General Statutes § 53a-65 (2) sets up an affirmative or nonaffirmative defense to prosecutions under General Statutes §§ 53a-70 or 53a-70a. The Appellate Court, in State v. Scott, 11 Conn. App. 102, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987), found that the defendant, claiming the exemption on appeal, had not presented any evidence of being married to the victim. Consequently, the Appellate Court was not required to determine whether § 53a-65 (2) was an affirmative or nonaffirmative defense. The court did state, however, that a “defendant who seeks to avail himself of the marital exemption would have to raise his marital status as a defense”; id., 116; and thereafter cited General Statutes § 53a-12 (a). Section 53a-12 (a) provides that “[w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.” We express no opinion on the Appellate Court’s disposition of Scott. In the present case, the state in the presentation of its case included testimony from the complainant that she and the defendant were married.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Richard T. Smith
    (13446)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.

      Argued November 4, 1988
    decision released February 21, 1989

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Susan Marks and Roland Fasano, assistant state’s attorneys, for the appellee (state).
   Shea, J.

After a jury trial the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70. In this appeal he claims error in (1) the denial of his motion for a judgment of acquittal for insufficiency of the evidence on the element of lack of consent, (2) the application of a statute, § 53a-70, claimed to be unconstitutionally vague, to the facts of this case, (3) the instructions to the jury, as well as the argument of the prosecutor, concerning certain evidence of consciousness of guilt, and (4) the Charge upon reasonable doubt. We find no error.

Upon the evidence presented the jury could reasonably have found the following facts. On March 18,1987, the victim, T, a twenty-six year old woman, and her girlfriend, A, a visitor from Idaho, went to a bar in West Haven. T was introduced by a friend to the defendant, who bought her a drink. The defendant invited her and A, together with a male acquaintance A had met at the bar, to dinner at a restaurant across the street. After dinner, the defendant having paid for T’s share, the four left the restaurant. The defendant proposed that they all go to his apartment in West Haven. Because A’s acquaintance had a motorcycle, the defendant gave them directions to the apartment so that they could ride there, while he and T walked.

After a twenty minute walk, the defendant and T arrived at the apartment at about 10 p.m. A and her acquaintance were not there and never arrived at the apartment. When T and the defendant had entered the apartment they sat on the couch in the living room to watch television. After a while the defendant put his arm around T and told her he wanted a kiss. She gave him a kiss. She testified that “He wouldn’t back off. He wouldn’t let go of me. So I said, look, I am not kidding. I really don’t Want to do anything. I don’t know you and whatnot.” The defendant still held onto T. She testified that he was “still right in my face wanting to kiss me. You know, saying so, saying that you don’t think I paid for dinner for nothing, do you.”

T testified that she was scared: “At first I didn’t know what to do. I did spit in his face and he didn’t even take it seriously. Then I tried kicking him off, which was to no avail. He was way too big for me.” T described the defendant as “at least six foot two” and “at least two hundred pounds.” She testified: “He told me he could make it hard on me or I could make it easy on myself, which I finally decided was probably my best bet.” T understood that the defendant was determined to “have sex” with her and that either he would hurt her or she “was going to go along with it.” At the point where T ceased resistance, she was “down on the couch” and the defendant was “on top of” her.

T testified that she had informed the defendant that she had to pick up her daughter, had insulted him, and had told him that he was “a big man to have to force a woman.” She testified, however, that after she decided to “give in,” she tried to convince the defendant that she was not going to fight and “was going to go along with him and enjoy it.”

The defendant removed T’s clothing as she remained on the couch and led her into the bedroom. When she declined his request for oral sex, he did not insist upon it, but proceeded to engage in vaginal intercourse with her. After completion of the act, the defendant said that he knew the victim felt that she had been raped, but that she could not prove it and had really enjoyed herself.

After they both had dressed, the defendant requested T’s telephone number, but she gave him a number she concocted as a pretense. He also offered her some sherbet, which she accepted and ate while she waited for a cab that the defendant had called. T, however, placed her pink cigarette lighter underneath the couch, so that she would be able to prove she had been in the apartment. When the cab arrived, she left the apartment. She told the cab driver to take her to the police station because she had been raped. At the station she gave her account of the event to the police. The defendant was arrested. The police found T’s lighter under the couch in his living room, where T had informed them it was located.

I

Although the defendant claims insufficiency of the evidence as the basis for his claim that he was entitled to an acquittal, he actually seeks to have this court impose a requirement of mens rea, or guilty intent, as an essential element of the crime of sexual assault in the first degree. In fact, he concedes in his reply brief that, if conviction for sexual assault in the first degree requires only a general intent, he cannot prevail on his claim that the evidence was insufficient to support his conviction. This court has held that our statute, § 53a-70, requires proof of only a general intent to perform the physical acts that constitute that crime. State v. Carter, 189 Conn. 611, 625, 458 A.2d 369 (1983). “No specific intent is made an element of the crime of first degree sexual assault . . . . ” “It is well settled that first degree sexual assault is a general intent crime.” State v. Rothenberg, 195 Conn. 253, 258 n.4, 487 A.2d 545 (1985); State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).

The defendant, nevertheless, urges that we adopt a construction of § 53a-70 making the mental state of the defendant the touchstone for the resolution of the issue of consent when presented in a prosecution for first degree sexual assault. He refers to this mental state as a mens rea, a guilty mind, and describes it as an awareness on the part of a man that he is forcing sex upon a woman against her will and that he intends to do so. In the context of the evidence in this case, the defendant claims, though he did not testify at trial, that he honestly believed that at the time the sexual act occurred that T had consented to it. He bases this claim upon her testimony that, after their preliminary encounter on the couch, and his remark that he could “make it hard” for her or she could “make it easy” on herself, she ceased resisting his advances and decided to “go along with it.” T also testified that, once she decided to “give in,” she acted as if she were “going to go along with him and enjoy it.”

The position advocated by the defendant that the requisite mens rea should be an element of the crime of sexual assault in the first degree is supported by a widely publicized decision of the British House of Lords in 1975, Director of Public Prosecutions v. Morgan, 1976 App. Cas. 182, 205, 2 W.L.R. 913, 2 All E. R. 347 (H.L. 1975). A majority of the court held that a defendant cannot properly be convicted of rape if he in fact believed that the woman had consented, even though the basis for his belief may not have been reasonable. Lord Hailsham expressed the view that, for the crime of rape at common law, “the prohibited act is and always has been intercourse without the consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention to have intercourse willy-nilly, not caring whether the victim consents or no.” Id., 215. A similar position has been adopted in Alaska, where it is held that the state has the burden of proving at least “that the defendant acted ‘recklessly’ regarding his putative victim’s lack of consent.” Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). The Supreme Court of California has concluded that a wrongful intent is an element of a rape offense, but, contrary to Morgan, has held that this element would be negated if a defendant entertained a “reasonable and bona fide belief’ that the complainant had consented. (Emphasis added.) People v. Mayberry, 15 Cal. 3d 143, 145, 125 Cal. Rptr. 745, 542 P.2d 1337 (1975). A recent commentary on the subject of rape also has suggested that the focus of the inquiry regarding consent in such cases should be upon the mens rea of the defendant rather than upon the attitude of the victim. S. Estrich, “Rape,” 95 Yale L.J. 1087, 1094-1132 (1986).

Most courts have rejected the proposition that a specific intention to have intercourse without the consent of the victim is an element of the crime of rape or sexual assault. See, e.g., State v. Reed, 479 A.2d 1291, 1296 (Me. 1984); Commonwealth v. Grant, 391 Mass. 645, 650, 464 N.E.2d 33 (1984); Commonwealth v. Lefkowitz, 20 Mass. App. 513, 521, 481 N.E.2d 227, review denied, 396 Mass. 1103, 485 N.E.2d 188 (1985); Commonwealth v. Williams, 294 Pa. Super. 93, 99-100, 439 A.2d 765 (1982); State v. Houghton, 272 N.W.2d 788, 791 (S.D. 1978). This court has implicitly discountenanced such a claim. State v. Rothenberg, supra; State v. Carter, supra. One of the complications that might arise, if such a mental element were required, involves the problem of intoxication, which is generally held to be relevant to negate a crime of specific intent but not a crime of general intent. State v. Carter, supra, 625; State v. Bitting, 162 Conn. 1, 7, 291 A.2d 240 (1971). The difficulty of convicting a thoroughly intoxicated person of rape, if awareness of lack of consent were an element of the crime, would diminish the protection that our statutes presently afford to potential victims from lustful drunkards. Another related problem would be the admissibility of evidence of other similar behavior of a defendant charged with rape to prove his intent to disregard any lack of consent. Such evidence is now usually excluded as more prejudicial than probative, because only a general intent is necessary to constitute the offense. See State v. Houghton, supra, 791.

Although the Supreme Judicial Court of Massachusetts has rejected the contention that a specific intent to have nonconsensual intercourse is an essential element of the crime of rape that the state must prove, it has expressly left open the question “[wjhether a reasonable good faith mistake of fact as to the fact of consent is a defense to the crime . . . Commonwealth v. Grant, 391 Mass. 645, 651, 464 N.E.2d 33 (1984); Commonwealth v. Sherry, 386 Mass. 682, 697, 437 N.E.2d 224 (1982). The California Supreme Court, in holding that a wrongful intent is an element of the crime of rape in People v. Mayberry, supra, construed the California penal code to embody the principle that a mistake of fact based upon a reasonable and good faith belief as to consent negates the existence of the requisite wrongful intent. A corresponding provision of our own penal code, General Statutes § 53a-6 (a), allows the defense that a person has engaged in conduct otherwise criminal under a mistaken belief of fact where “[s]uch factual mistake negates the mental state required for the commission of an offense.” This statute, however, applies only to specific intent crimes. Unless we should conclude, contrary to our precedent, that the mental state required of the actor for sexual assault in the first degree includes an awareness of lack of consent, even a reasonably founded, but nonetheless mistaken, belief as to that fact would not be available as a defense under § 53a-6 (a).

Our first degree sexual assault statute, § 53a-70, applies to a person who “compels another person to engage in sexual intercourse by the use of force . . . or by the threat of use of force which . . . reasonably causes such person to fear physical injury . . . . ” Although the consent of the complainant is not expressly made a defense to such a crime, it is abundantly clear that the draftsmen of our penal code endorsed the principle that “non-commercial sexual activity in private, whether heterosexual or homosexual, between consenting, competent adults, not involving corruption of the young by older persons, is no business of the criminal law.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) p. 38. A finding that a complainant had consented would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse. Consent is not made an affirmative defense under our sex offense statutes, so, as in the case of the defense of alibi, the burden is upon the state to prove lack of consent beyond a reasonable doubt whenever the issue is raised.

While the word “consent” is commonly regarded as referring to the state of mind of the complainant in a sexual assault case, it cannot be viewed as a wholly subjective concept. Although the actual state of mind of the actor in a criminal case may in many instances be the issue upon which culpability depends, a defendant is not chargeable with knowledge of the internal workings of the minds of others except to the extent that he should reasonably have gained such knowledge from his observations of their conduct. The law of contract has come to recognize that a true “meeting of the minds” is no longer essential to the formation of a contract and that rights and obligations may arise from acts of the parties, usually their words, upon which a reasonable person would rely. E. Farnsworth, Contracts § 3.6. Similarly, whether a complainant has consented to intercourse depends upon her manifestations of such consent as reasonably construed. If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse, a defendant should not be found guilty because of some undisclosed mental reservation on the part of the complainant. Reasonable conduct ought not to be deemed criminal.

It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.

Thus we adhere to the view expressed in our earlier decisions that no specific intent, but only a general intent to perform the physical acts constituting the crime, is necessary for the crime of first degree sexual assault. We reject the position of the British courts, as well as that adopted in Alaska, that the state must prove either an actual awareness on the part of the defendant that the complainant had not consented or a reckless disregard of her nonconsenting status. We agree, however, with the California courts that a defendant is entitled to a jury instruction that a defendant may not be convicted of this crime if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented. We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact, § 53a-6 (a), which is applicable only to specific intent crimes, but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances.

The defendant in this case made no request to charge upon the issue of the mental state required for the crime of sexual assault in the first degree or upon the issue of consent, nor did he except in these respects to the charge as given. On appeal his claim that a realization by a defendant of the absence of consent, or its recklessness equivalent, should be an element of the crime, as courts in Great Britain and Alaska have held, is necessarily limited to the sufficiency of the evidence to establish either an actual awareness that T had not consented or a reckless disregard of her manifestations of nonconsent. Since we have rejected the subjective standard for determining the issue of consent, however, the question for us is whether the evidence is sufficient to prove that a reasonable person would not have believed that T’s conduct under all the circumstances indicated her consent.

From our review of the evidence detailed previously, it is clear that the jury could properly have found beyond a reasonable doubt that T’s words and actions could not reasonably be viewed to indicate her consent to intercourse with the defendant. According to her uncontradicted testimony, she expressly declined his advances, explaining that she did not know him and wanted to pick up her child. She spat in his face and “tried kicking him off.” She “gave in” only after the defendant declared that “he could make it hard” for her if she continued to resist. This statement she could reasonably have regarded as a threat of physical injury. General Statutes § 53a-70. Only by entertaining the fantasy that “no” meant “yes,” and that a display of distaste meant affection, could the defendant have believed that T’s behavior toward him indicated consent. Such a distorted view of her conduct would not have been reasonable. The evidence was more than sufficient to support the verdict.

II

The defendant’s second claim, that § 53a-70, our first degree sexual assault statute, is unconstitutionally vague, is closely related to the first. He contends that, unless the statute is construed to require proof of a guilty mind, “every act of sexual intercourse can be punishable as a class B felony regardless of the mind set of the accused, because all that would be required to establish guilt is the act of sexual intercourse coupled with the statement of the victim that she felt threatened.” He suggests that the reasonableness of the complainant’s fear of physical injury generated by the threat “could readily be established simply by the differences in size between the man and the woman or the strangeness to the victim of the place she had gone to.”

The horrendous scenario postulated by the defendant that a sexual assault conviction may be based wholly upon a statement by the complainant of feeling threatened because of the greater size of the person accused, combined with the strangeness of the surroundings, is contrary to the conclusion we have reached in Part I. There we held that the crux of the inquiry on the issue of consent was not the subjective state of mind of the complainant but rather her manifestations of lack of consent by words or conduct as reasonably construed. Further, since § 53a-70 requires that one compel another person to engage in sexual intercourse “by the use of force . . . or by the threat of use of force . . . which reasonably causes such person to fear physical injury,” it is clear that a defendant must either use force or threaten its use by words or conduct that would reasonably generate fear of physical injury.

“[A] penal statute must be sufficiently definite to enable a person to know what conduct he must avoid.” State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). When first amendment freedoms are not involved, a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented. Id., 57. “Hence, that a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue.” Id., 58. The hypothetical put forth by the defendant of the wholly passive sexual assault victim intimidated solely by the size of the accused and the unfamiliarity of her surroundings, rather than by the use of force or threats, is far removed from the facts that the jury could reasonably have found in support of the verdict in this case. We conclude that the defendant’s claim that § 53a-70 is void for vagueness is without merit in the context of the circumstances of this case.

Ill

The defendant claims next that the charge to the jury on consciousness of guilt, as well as the prosecutor’s conduct during trial and remarks during closing argument, violated the defendant’s constitutional right to remain silent. The background of this claim is that, after the defendant had been arrested and had received the standard Miranda warnings, he gave a written statement to the police in which he admitted that, after meeting T and having dinner with her and another couple, T accompanied him to his apartment, where the other couple also had agreed to come, although they never arrived. At the apartment, he watched a movie and T had some ice cream. He called a cab for her and she left about midnight.

The statement did not mention any sexual activity between T and the defendant. At the trial, however, the police officer who had taken the statement testified that the defendant had denied “any sexual intercourse of any type” with T. During argument to the jury the state’s attorney argued that the omission from the defendant’s statement of any reference to having had sexual intercourse with T was an indication of his “consciousness of guilt,” because innocent persons would have told the police the truth “when asked what the heck happened when they are accused of a crime.” No objection to this argument was raised at trial, but the defendant’s counsel responded that, even assuming that the defendant had actually denied having intercourse with T, as the officer had testified despite the omission of such a significant fact from the written statement, the defendant’s failure to be completely candid with the police probably stemmed from his concern about his relationship with a woman with whom he had been living at the time, but who had been away from the apartment on the night T had been there.

The trial court charged the jury, in reference to the state’s claim that the defendant had given a false statement to the police on whether sexual intercourse had occurred, that “from any statements made by the accused subsequent to the alleged criminal act, which are proved to you to be false, you may fairly infer guilty knowledge influenced by the criminal act itself.” The defendant excepted “to giving the consciousness of guilt instruction” as “an inaccurate statement of law,” but did not specify in what respect it was claimed to be incorrect, as Practice Book § 852 requires.

In claiming on appeal that the prosecutor and the court violated his right to remain silent, the defendant assumes that the only basis for the argument and instruction concerning the consciousness of guilt inference to be drawn from a false statement to the police in response to an accusation of crime was the omission from the written statement of any mention of sexual intercourse. On this foundation the defendant has constructed an elaborate argument that, because he had received Miranda warnings advising him of his right to remain silent and to stop answering questions at any time, any comment upon his failure to tell the police he had engaged in intercourse with T infringed upon his constitutional privilege against self-incrimination. He relies upon Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which held that the silence of an arrested person in the face of police interrogation following Miranda warnings is “insolubly ambiguous” and that “[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

Apart from such considerations as the absence of any objection to the prosecutor’s argument or the general nature of the defendant's exception to the charge, which never even remotely raised the claim he now advances, the assumption on which the claim is predicated is incorrect. The testimony does not indicate that the defendant remained silent or that he failed to respond to any question asked. The officer who took the statement testified that the defendant, when asked what had happened that night, had given the account contained in the written statement and had “denied any sexual intercourse of any type.” On appeal the defendant maintains that this testimony should be construed to mean simply that the officer had inferred such a denial from the defendant’s failure to mention the subject of intercourse in his statement. At trial, however, his attorney appears to have understood the officer’s testimony to refer to an express denial of such intercourse: “Now [the officer] says that [the defendant] in fact denied he had intercourse.” The possible construction of the officer’s testimony now proposed by the defendant is not a sufficient basis for further consideration of this claim of error, because any such factual ambiguity must be resolved in favor of upholding the judgment. There is an insufficient factual foundation for the claim that the defendant remained silent after receiving the Miranda warnings.

IV

The defendant claims finally that the court’s instructions in defining reasonable doubt were erroneous and misleading because of the inclusion of the following sentence: “What [the law] does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence, one which you as reasonable and prudent men and women would, be willing to act upon in the more weighty and important matters relating to your own affairs.” (Emphasis added.) The defendant concedes that he never excepted to this portion of the charge, but seeks review of this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). This court has permitted Evans review of similar claims that certain language used in the charge in a criminal case had the effect of diluting the state’s constitutional burden to prove a defendant guilty beyond a reasonable doubt. State v. Whelan, 200 Conn. 743, 755-56, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Williams, 199 Conn. 30, 33, 505 A.2d 699 (1986); State v. Amarillo, 198 Conn. 285, 299 n.9, 503 A.2d 146 (1986). Accordingly, we review this claim to determine whether the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra. Although we disapprove of the instruction, in considering the charge as a whole, we conclude that it does not rise to the level of a constitutional error.

In Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954), the defendant on appeal made an attack not made in the trial court upon a jury instruction similar to that before us that defined reasonable doubt as “the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon.” The United States Supreme Court declared that “this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App. D.C. 132, 137-138, 107 F.2d 297 [D.C. Cir. 1939], rather than the kind on which he would be willing to act.” Id. The court observed, however, that “the instruction as given was not of the type that could mislead a jury into finding no reasonable doubt when in fact there was some” and that “[a] definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension.” Holland v. United States, supra. The ultimate conclusion was that, “taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.” Id.

The reference in Holland to Bishop v. United States, supra, was to a definition of reasonable doubt that included this statement: “It is not a vague, speculative, imaginary something, but just such a doubt as would cause reasonable men to hesitate to act upon it in matters of importance to themselves.” Bishop v. United States, supra, 138. Judge Friendly of the Second Circuit Court of Appeals, in reviewing an instruction defining reasonable doubt in terms of acting rather than hesitating to act, opined that “the ‘hesitate’ language makes the point considerably better and we wish trial judges would use it.” United States v. Nuccio, 373 F.2d 168, 175 (2d Cir.), cert. denied, 387 U.S. 906, 87 S. Ct. 1688, 18 L. Ed. 2d 623 (1967). He found it, however, “impossible to believe, in the absence of any evidence such as a request for further instructions, that jurors would retain such a nuance in their minds and be significantly influenced by it.” Id.

We agree with these authorities that it is incongruous to speak of being “willing to act upon” a doubt, as the instruction in this case suggested, and that it is more consistent with the concept of reasonable doubt to use the “causing one to hesitate” phrase. Bishop v. United States, supra. These cases hold, nevertheless, that such a difference in phraseology does not constitute reversible error, let alone constitutional error in an otherwise adequate charge upon reasonable doubt. The defendant has no other criticism of the trial court’s charge on the subject of reasonable doubt, and from our review we find it sufficient as a whole to define the standard of proof necessary for conviction in a criminal case. Accordingly, although we disapprove of the instruction under attack, we conclude that its inclusion does not warrant setting aside the judgment of conviction.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-6 (a) provides: “A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification.”

       The testimony of T that the defendant had told her, after completion of the sexual act, that “he knew that [T] felt [she] was raped but [she] couldn’t prove it” is significant evidence that the defendant subjectively may have realized that T had not consented to intercourse. We hold, however, that actual awareness of lack of consent is not essential.

       Officer John Lyke of the West Haven police department testified in part as follows:
      “Q. Was [the typed statement] the extent of his response to the question, what happened that night?
      “Police Officer Lyke: Yes, sir.
      “Q. Did he deny the sexual assault?
      “A. Yes, sir.
      “Q. Did he indicate at any time that he had sexual intercourse with the victim?
      “A. No, he didn’t, sir.
      “Q. So he denied, any sexual intercourse of any type?

      “A. That’s correct.

      “Q. And nowhere in State’s Exhibit ‘P,’ that is the statement typed up to you, did he say he had sexual intercourse?
      “A. That’s correct.” (Emphasis added.)

       The portion of the charge defining reasonable doubt was as follows: “Now, a reasonable doubt means this. It is a doubt for which a reasonable man or woman can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and a binding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation, conjecture or an imaginary doubt. A reasonable doubt is not a captious or frivolous doubt, nor is it a doubt which is raised by the ingenuity of Counsel or by a juror and unwarranted by the evidence. Nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence. Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence, one which you as reasonable and prudent men and women would be willing to act upon in the more weighty and important matters relating to your own affairs. It is proof wholly consistent with the defendant’s guilt, and inconsistent with any other rational conclusion.”


author: Peters, C. J.

text:
    Albert Warner v. Simon Konover et al.
    (13460)
    Peters, C. J., Healey, Shea, Glass and Santaniello, Js.

      Argued January 11
    decision released February 21, 1989

      Richard K. Mulroney, with whom were DanaP. Lonergan and, on the brief, Ben Schwimmer, for the appellant (plaintiff).

      James M. Pickett, with whom, on the brief, were Morris R. Borea and Glenn T. Terk, for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this appeal is whether the plaintiff tenant, Albert Warner, has stated a cause of action against his landlords, the defendants, Simon Konover, Marvin M. Patron, estate of A. Abner Rosen and estate of Martin Spector, for breach of contract arising out of the defendants’ refusal to consent to an assignment of a lease of commercial premises. The defendants successfully moved to strike the plaintiffs complaint, and judgment was thereafter rendered in the trial court on their behalf. The plaintiff filed an appeal, which we transferred to this court pursuant to Practice Book § 4023. We find error.

In an appeal from a judgment following the granting of a motion to strike, “we must take the facts to be those alleged in the plaintiffs complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988), and cases cited therein. Accordingly, we assume the following factual circumstances concerning the parties’ lease and their conduct pursuant thereto. On February 16,1982, the plaintiff and the defendants entered into a five year lease of premises in the Tri-Town Shopping Plaza located on the Seymour/Ansonia line. The lease provides, in Article 13.01, that “Tenant will not assign this Lease in whole or in part, nor sublet all or any part of the Leased Premises, without the prior written consent of Landlord in each instance. . . . ” Four years later, the plaintiff contracted to sell the business that he was conducting on the leased premises. This sale was not consummated because it was contingent upon an assignment of the plaintiff’s lease, and therefore required the defendants’ consent, which they refused to give without a renegotiation of the rental payment. The plaintiff suffered financial losses because of his inability to sell his business.

The defendants’ motion to strike the complaint relied on the terms of Article 13.01 of the lease as authority for their refusal to consent to the assignment. In the absence of a clause in the lease specifying that consent should not be unreasonably withheld, they maintained that they had reserved unfettered discretion to withhold their consent. The trial court granted the defendants’ motion without filing a memorandum of decision.

On appeal, the plaintiff contends that the trial court erred in accepting the defendants’ argument that they had an absolute right to refuse to consent to an assignment of his lease. The defendants maintain that Connecticut case law supports their position. We agree with the plaintiff.

It is true that this court has twice stated that, when a lease requires a landlord’s prior written consent as a condition to its assignment, a landlord “could refuse to consent to an assignment and the reasons for its actions [would be] immaterial. Robinson v. Weitz, 171 Conn. 545, 549, 370 A.2d 1066 (1976).” Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 447, 438 A.2d 708 (1980). A careful reading of these cases discloses, however, that neither Robinson nor Danpar Associates controls this case. The issue in Robinson was the interpretation of an assignment in which the landlord expressly agreed that “ 'consent will not be unreasonably withheld.’ ” Robinson v. Weitz, supra, 549. The court’s dictum about a landlord’s greater right to withhold consent under other circumstances merely cited similar holdings in other jurisdictions. Danpar Associates involved a landlord’s action claiming damages for a tenant’s breach, in which we held that, despite a landlord’s theoretical right to refuse consent to an assignment, its duty to mitigate damages operated as a practical constraint on its exercise of such a right. Danpar Associates v. Somersville Mills Sales Room, Inc., supra, 446-47.

The precedent that we deem more persuasive than either Robinson or Danpar Associates is a case that neither party appears to have brought to the attention of the trial court. Central New Haven Development Corporation v. La Crepe, Inc., 177 Conn. 212, 413 A.2d 840 (1979), involved a landlord’s action to recover damages from a commercial tenant for breach of a lease. The tenant defended against liability on the basis of a clause giving it unfettered discretion to cancel the lease because of the landlord’s conceded failure, three years earlier, to obtain a nondisturbance agreement from the mortgagee. Although the tenant’s option to cancel was in terms unlimited, and the lease contained a nonwaiver clause, we held that the tenant was in breach because it had unreasonably delayed its exercise of its option. Id., 215-17. We relied squarely on § 205 (then § 231) of the Restatement (Second) of Contracts, which provides: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Id., 217.

If a commercial lease imposes a duty of good faith and fair dealing upon a tenant, there is no reason not to impose a similar duty upon a landlord. The provisions of § 205 of the Restatement are therefore as applicable in this case as they were in La Crepe, Inc. Accordingly, we hold that a landlord who contractually retains the discretion to withhold its consent to the assignment of a tenant’s lease must exercise that discretion in a manner consistent with good faith and fair dealing. Although this holding may well represent a minority position nationwide; see 1 M. Friedman, Leases (1978) § 7.304; a similar result has been reached in a number of other jurisdictions. See, e.g., Homa-Goff Interiors, Inc. v. Cowden, 350 So. 2d 1035, 1038 (Ala. 1977); Fernandez v. Vazquez, 397 So. 2d 1171, 1173 (Fla. App. 1981); Arrington v. Walter E. Heller International Corporation, 30 Ill. App. 3d 631, 640-41, 333 N.E.2d 50 (1975); Shaker Building Co. v. Federal Lime & Stone Co., 28 Ohio Misc. 246, 252, 277 N.E.2d 584 (1971); and compare 2 Restatement (Second), Property, Landlord and Tenant (1977) § 15.2, comment i.

It would be premature, on the current state of the record, to decide what evidence would suffice to establish a breach of the implied covenant of good faith and fair dealing. Contrary to the defendants’ assertion, in some circumstances there may well be a distinction between “good faith” and “commercial reasonableness.” As comment (a) to § 205 notes: “The phrase ‘good faith’ is used in a variety of contexts, and its meaning varies somewhat with the context. Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.” 2 Restatement (Second), Contracts (1981) § 205; see also E.A. Farnsworth, Contracts (1982) § 7.17, pp. 526-28. Another commentator has suggested that, in arm’s length transactions, the good faith performance doctrine permits the exercise of discretion for any purpose reasonably within the contemplation of the parties but forbids the exercise of discretion for the purpose of recapturing opportunities forgone at the formation of the contract. S. Burton, “Breach of Contract and the Common Law Duty to Perform in Good Faith,” 94 Harv. L. Rev. 369, 378-92 (1980). We have recognized a difference between good faith and commercial reasonableness in other instances. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 642-43, 447 A.2d 1163 (1982); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474-75, 427 A.2d 385 (1980).

The only issue that remains for us to resolve today is whether the plaintiffs complaint can reasonably be read to allege that the defendants’ withholding of their consent to assignment of his lease constituted a breach of the implied covenant of good faith and fair dealing. The plaintiff maintains that he has met this threshold requirement in paragraph seven of his complaint. That paragraph states that “the defendants refused to consent to the assignment of said lease until such time as there was a re-negotiation of the rental of said premises.” Bearing in mind our responsibility to construe the complaint “in the manner most favorable to sustaining its legal sufficiency”; Michaud v. Wawruck, supra, 408; we conclude that paragraph seven suffices to raise an issue about the legitimacy of the defendants’ decision. While the defendants certainly had the right to exercise substantial discretion with regard to the reliability of any proffered assignee, their good faith is called into question if assignment to an assignee with impeccable credentials was conditioned upon a substantial increase in the rent to be paid during the unexpired term of the lease.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The plaintiff attached the lease to his complaint. Article XIII of the lease, entitled Assignment and Subletting, provides as follows: “13.01 Tenant will not assign this Lease in whole or in part, nor sublet all or any part of the Leased Premises, without the prior written consent of Landlord in each instance. In the event that Tenant so assigns or sublets this Lease, Tenant shall pay to Landlord all legal fees incurred by Landlord in connection with the negotiation, drafting and/or review by Landlord’s attorneys of the terms and provisions of any instrument of assignment or subletting. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. If this Lease be assigned, or if the Leased Premises or any part thereof be underlet or occupied by anybody other than Tenant, Landlord may collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, under-tenant or occupant as tenant, or a release of Tenant from further performance by Tenant of convenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain primarily liable on this Lease during the term of this Lease and any extensions thereof and shall not be released from performing any of the terms, covenants and conditions of this Lease, but Tenant and such assignee shall thereafter be jointly and severally liable for the full and faithful performance of the obligations of Tenant under this Lease. If the Tenant is a corporation, the sale or transfer of twenty-five (25%) percent or more of its voting stock shall be deemed an assignment for purposes of this Article XIII.”