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STATE OF CONNECTICUT v. CHRISTIAN DERKS

(AC 35547)

Gruendel, Lavine and Bear, Js.

Argued October 20, 2014—officially released January 20, 2015

(Appeal from Superior Court, judicial district of New

Haven, Fasano, J. [motion to dismiss]; Clifford, J.

[judgment].)

James B. Streeto, assistant public defender, for the

appellant (defendant).

Marc J. Herman, certified legal intern, with whom

were Bruce R. Lockwood, senior assistant state’s attor-
ney, and, on the brief, Michael Dearington, state’s attorney, and Maxine V. Wilensky, senior assistant state’s

attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Christian Derks, appeals

from the judgment of conviction,rendered following his

conditional plea of nolo contendere, of sexual assault in

the first degree in violation of General Statutes § 53a70 (a) (2) and risk of injury to a child in violation of

General Statutes § 53-21 (2). On appeal, the defendant

claims that the trial court improperly denied his motion

to dismiss because his prosecution was time barred by

the statutes of limitation set forth in General Statutes

§§ 54-193a and 54-193 (b),1 and the delay violated his

due process rights. The defendant’s principal assertion

is that the state unreasonably delayed the execution of

the arrest warrant.2 We disagree, and accordingly,

affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s claim. On September 21, 1997, the twelve year old victim,3 a babysitter, filed a complaint with the Meriden police alleging

that the thirty-three year old defendant had sexually

assaulted her the previous night.4 On February 3, 1998,

Meriden police obtained an arrest warrant forthe defendant. Prior to the issuance of the arrest warrant, the

defendant moved from Connecticut to Colorado in the

fall of 1997, leaving behind his wife and daughter.

Although it is unclear from the record on what date the

defendant moved to Colorado, he obtained employment

and began working at Soderberg Masonry on December

16, 1997. From the time the arrest warrant was issued to

its ultimate execution, the defendant resided at various

addresses in Colorado. Following the defendant’s arrest

on an unrelated crime in Colorado, he was served with

an extradition warrant on October 3, 2010. After waiving

extradition from Colorado and arriving back in Connecticut, the defendant was served with the arrest warrant by Connecticut authorities on October 19, 2010.

By motion filed November 30, 2011, the defendant

sought to dismiss the information, claiming that the

prosecution was time barred by the statute of limitations or, in the alternative, that the continued prosecution of the case violated his due process rights pursuant

to the fifth and fourteenth amendments to the United

States constitution, and article first, § 8, of the Connecticut constitution. On January 4, 2012, following an evidentiary hearing, the court, Fasano, J., denied the

defendant’s motion to dismiss. In its memorandum of

decision, the court determined that ‘‘the only rational

conclusion, absent evidence to the contrary, is that

the defendant was on the run, intending to elude the

authorities.’’ As such, the court found that ‘‘the years

of delay with respect to his arrest and prosecution were

occasioned by his very conduct.’’ Ultimately, the court

concluded that ‘‘the actions of the authorities to apprehend the defendant, though minimal, were adequate

under the circumstances of this case where the delay
was occasioned by the defendant’s efforts to elude

authorities.’’5

On December 27, 2012, the defendant entered a plea

of nolo contendere, conditioned on his right to appeal

from the court’s denial of his motion to dismiss. The

court, Clifford, J., accepted the plea, entered a finding

of guilty, and imposed a total effective sentence of ten

years of incarceration, execution suspended after two

years, and ten years of probation. Thereafter, on July

19, 2013, the defendant filed a motion for rectification,

which was granted in part by Judge Fasano. This appeal

followed. Additional facts will be set forth as necessary.

The defendant claims that Judge Fasano improperly

denied the motion to dismiss because the prosecution

was time barred by §§ 54-193a and 54-193 (b). He argues

that although the warrant for his arrest was issued

within the relevant statutes of limitation, it was not

executed within a reasonable period of time and, therefore, the statutes of limitation were not tolled. He also

claims that the delay in executing the warrant violated

his due process rights. The defendant asserts that he

neither took evasive action nor was difficult to apprehend after the warrant was issued. We disagree.

At the outset, we set forth the applicable standard

of review. ‘‘A motion to dismiss . . . properly attacks

the jurisdiction of the court, essentially asserting that

the plaintiff cannot as a matter of law and fact state a

cause of action that should be heard by the court. . . .

[O]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will

be de novo. . . . Factual findings underlying the

court’s decision, however, will not be disturbed unless

they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss,

therefore, generally turns on whether the appellant

seeks to challenge the legal conclusions of the trial

court or its factual determinations.’’ (Internal quotation

marks omitted.) State v. Pittman, 123 Conn. App. 774,

775, 3 A.3d 137, cert. denied, 299 Conn. 914, 10 A.3d

530 (2010). Thus, in order to determine the appropriate

standard of review for the defendant’s claim, we first

must ascertain whether the defendant is challenging

the trial court’s legal conclusions or factual findings.

In this case, the defendant contests Judge Fasano’s

factual finding that he was eluding authorities, which,

in turn, led to the court’s allegedly improper legal conclusion that the statutes of limitation were tolled.

‘‘[W]hen the plaintiff asserts that the facts found were

insufficient to support the court’s legal conclusion, th[e]

issue presents a mixed question of law and fact to which

we apply plenary review. . . . We must therefore

decide whether the court’s conclusions are legally and

logically correct and find support in the facts that

appear in the record.’’ (Internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, 132
Conn. App. 582, 586–87, 33 A.3d 802 (2011).

Section 54-193a provides in relevant part: ‘‘Notwithstanding the provisions of section 54-193, no person

may be prosecuted for any offense, except a class A

felony, involving sexual abuse, sexual exploitation or

sexual assault of a minor except within thirty years

from the date the victim attains the age of majority or

within five years from the date the victim notifies any

police officer or state’s attorney acting in such police

officer’s or state’s attorney’s official capacity of the

commission of the offense . . . .’’

Section 54-193 (b) provides: ‘‘No person may be prosecuted for any offense, other than an offense set forth

in subsection (a) of this section, for which the punishment is or may be imprisonment in excess of one year,

except within five years next after the offense has

been committed.’’

In the present case, the victim notified the police of

the alleged sexual assault on September 21, 1997, and

an arrest warrant for the defendant was issued on February 3, 1998. The extradition warrant was served on

the defendant on October 3, 2010, and the arrest warrant

was served on October 19, 2010. The question, then, is

whether the statutes of limitation under §§ 54-193a and

54-193 (b) were tolled after the warrant was issued on

February 3, 1998.

In State v. Crawford, 202 Conn. 443, 450, 521 A.2d

1034 (1987), our Supreme Court stated that once an

arrest warrant is issued and delivered to the proper

officer for service, the ‘‘prosecutorial authority has

done everything possible within the period of limitation

to evidence and effectuate an intent to prosecute, [and]

the statute of limitations is tolled.’’ Our Supreme Court

concluded that ‘‘[a]n accused should not be rewarded,

absent evidence of a lack of due diligence on the part

of the officer charged with executing the warrant, for

managing to avoid apprehension to a point in time

beyond the period of limitation. . . .

‘‘[I]n order to toll the statute of limitations, [however]

an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay. . . . We do not adopt a per se approach

as to what period of time to execute an arrest warrant

is reasonable. A reasonable period of time is a question

of fact that will depend on the circumstances of each

case. If the facts indicate that an accused consciously

eluded the authorities, orfor otherreasons was difficult

to apprehend, these factors will be considered in

determining what time is reasonable. If, on the other

hand, the accused did not relocate or take evasive

action to avoid apprehension, failure to execute an

arrest warrant for even a short period of time might be

unreasonable and fail to toll the statute of limitations.’’

(Citations omitted; emphasis added.) Id., 450–51. The
defendant has the burden to prove the affirmative

defense that the prosecution is barred by the statutes

of limitation. Id., 451. ‘‘[O]nce a defendant puts forth

evidence to suggest [however] that [he] was not elusive,

was available and was readily approachable, the burden

shifts to the state to prove that the delay in executing

the warrant was not unreasonable.’’ (Internal quotation

marks omitted.) State v. Woodtke, 130 Conn. App. 734,

740, 25 A.3d 699 (2011).

In this case, the defendant eluded authorities and

was difficult to apprehend, as he was living in Colorado,

which the authorities did not know. The trial court

determined that the defendant was elusive, ‘‘[g]iven the

sequence of events in this particular case: the allegations of sexual abuse of September 20, 1997; the defendant’s confrontation with his wife over the allegations

and his removal from the household; the subsequent

complaint of vaginal, sexual assault [made to the police

on] December 11, 1997; the inability of the police to

locate the defendant during the investigation; and the

abrupt departure from his wife and child and relocation

in the state of Colorado by December 16, 1997 . . . .’’

Judge Fasano continued: ‘‘[T]he fact that the defendant

lived at multiple addresses in Colorado, managed to

become incarcerated in a Colorado prison, registered

as a sex offender and placed on a probationary status,

filed tax returns, etc., hardly qualifies as making oneself

available, approachable and readily discoverable to

authorities in Connecticut, though, it certainly qualifies

as evidence of an intent to establish a permanent residence in Colorado, far from the police department

investigating the allegations of sexual abuse.’’ The

defendant did not prove on appeal that Judge Fasano’s

factual findings were clearly erroneous. Given that conclusion, the burden of proof never shifted to the state,

but rather remained with the defendant.

Judge Fasano further found that the defendant did

not allege actual prejudice in support of his due process

claim. ‘‘For the defendant to succeed on his claim, a

showing of delay will not in and of itself suffice to

show prejudice, except in an extreme case, and actual

prejudice vel non is the focal point of the inquiry.’’

(Internal quotation marks omitted.) State v. Pittman,

supra, 123 Conn. App. 780. In this case, Judge Fasano

found that ‘‘[a]ny prejudice, under the circumstances

here, is minimal and speculative.’’ We agree with the

court’s finding.

‘‘To evaluate unreasonable delay and due diligence,

we must also consider the police department’s actions

in executing the warrant.’’ State v. Woodtke, supra, 130

Conn. App. 744. In the present case, the defendant

argues that he was available to police and easily discoverable in Colorado because he paid taxes, held a

driver’s license, maintained employment, complied with

the requirement to register as a sex offender with five
different police departments in Colorado for an unrelated conviction, and received service of divorce papers

and orders of child support from his wife, who remained

in Connecticut. The police entered the defendant’s warrant into the FBI’s National Crime Information Center

database and conducted computer searches for the

defendant in 2006 and 2008. The court found that an

error in the national database system prevented the

Meriden police from being alerted to the defendant’s

arrests and proceedings in Colorado. Judge Fasano was

‘‘satisfied that, under the circumstances of this case,

though the police efforts may be characterized as minimal, they were sufficient.’’ Thus, we cannot conclude

that the period of alleged delay in this case was unreasonable or that the state violated the defendant’s right

to due process, and, therefore, we conclude that the

court properly denied the defendant’s motion to

dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that although §§ 54-193a and 54-193 (b) have been amended

since the date of the crimes in 1997, the amendments to those statutes are

not relevant to the claims on appeal. Accordingly, we refer to the current

revision of those statutes.

2 Approximately twelve years and eight months transpired between the

date the arrest warrant was issued and when it was served on the defendant

in Colorado.

3

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

4 On December 11, 1997, the victim gave the police a written statement

alleging that forced penile-vaginal intercourse occurred on the night of

September 20, 1997.

5

In his memorandum of decision, Judge Fasano noted that the defendant’s

wife obtained a divorce from the defendant, who defaulted on his appearance

in December, 1998; that the defendant lived at approximately seven different

addresses inColorado; was arrested and incarcerated inColorado on charges

of burglary in the second degree and sexual assault in the third degree; and

had registered in Colorado as a sex offender.