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*********************************************** 
STATE OF CONNECTICUT v. CARROLL L.

BUMGARNER-RAMOS

(AC 39923)

DiPentima, C. J., and Lavine and Moll, Js.

Syllabus

Convicted of the crimes of assault in the first degree, aggravated sexual

assault of a minor, risk of injury to a child and manslaughter in the first

degree in connection with the death of the three year old victim, who had

sustained numerous injuries while in the defendant’s care, the defendant

appealed to this court. He claimed that there was insufficient evidence

to convict him of aggravated sexual assault of a minor and that his

conviction of both assault in the first degree and manslaughter in the

first degree violated the constitutional guarantee against double jeopardy. Held:

1. There was sufficient evidence to support the defendant’s conviction of

aggravated sexual assault of a minor: contrary to the defendant’s claim

that the state failed to prove that he engaged in vaginal sexual intercourse

with the victim within the meaning of the applicable statutes (§§ 53a70c [a] [3] and 53a-70 [a] [2]) because there was no evidence of penetration, the trial court credited the testimony of the associate medical

examiner who performed the autopsy of the victim’s body that the victim

had suffered, inter alia, a small laceration that started outside the right

labia majora and extended inside the labia majora, as well as a contusion

inside the labia majora, and found that the defendant had caused such

injuries, and consistent with established legal principles set forth by

our Supreme Court, such evidence demonstrated sufficient penetration

of the labia majora to constitute vaginal intercourse under the relevant

statute (§ 53a-65 [2]), which provides that penetration, however slight,

is sufficient to complete vaginal intercourse; moreover, the trial court’s

finding that the victim’s injuries were inflicted by the application of

physical force on the subject areas by the defendant was relevant to

and necessary for its finding that the defendant was guilty of aggravated

sexual assault of a minor, which required that the defendant used violence to commit the offense of sexual assault in the first degree.

2. The defendant’s conviction of both assault in the first degree and manslaughter in the first degree violated the constitutional guarantee against

double jeopardy, as it was undisputed that his conviction of those

charges arose out of the same transaction and, as charged by the state,

the assault charge was a lesser included offense of the manslaughter

charge: the defendant could not have caused the death of the victim in

the manner described in the operative information without first having

caused serious physical injury to her, as the defendant was charged

with assault in the first degree pursuant to statute (§ 53a-59 [a] [3]),

which only required proof that the defendant, under circumstances

evincing an extreme indifference to human life, recklessly engaged in

conduct that created a risk of death to another person, and thereby

caused serious physical injury to another person, and, therefore, proof

that the defendant caused the victim serious physical injury under the

assault charge was subsumed within the evidentiary requirement under

the manslaughter charge that he caused the victim’s death, and this

court was not aware of any conceivable circumstance in which the

defendant could have caused the victim’s death without also having

caused her serious physical injury; accordingly, a constitutional violation

existed that deprived the defendant of a fair trial, and because the error

was not harmless, the case was remanded with direction to vacate the

conviction of the lesser included offense of assault in the first degree.

Argued October 11, 2018—officially released February 5, 2019

Procedural History

Substitute information charging the defendant with

the crimes of assault in the first degree, aggravated

sexual assault of a minor, risk of injury to a child and
manslaughter in the first degree, brought to the Superior

Court in the judicial district of Windham, geographical

area number eleven, and tried to the court, Swords, J.;

judgment of guilty, from which the defendant appealed

to this court. Reversed in part; judgment directed.

Erica A. Barber, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Patricia Froehlich, former

state’s attorney, and Matthew Crockett, former senior

assistant state’s attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Carroll L. Bumgarner-Ramos, appeals from the judgment of conviction,

rendered after a court trial, of assault in the first degree

in violation of General Statutes § 53a-59 (a) (3), aggravated sexual assault of a minor in violation of General

Statutes §§ 53a-70c (a) (3) and 53a-70 (a) (2), risk of

injury to a child in violation of General Statutes § 53-

21 (a) (1), and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal,

the defendant claims that (1) there was insufficient

evidence presented at trial to convict him of aggravated

sexual assault of a minor and (2) his conviction of both

assault in the first degree and manslaughter in the first

degree violated the constitutional guarantee against

double jeopardy. We agree with the defendant with

regard to his double jeopardy claim and vacate his conviction of assault in the first degree. We affirm the

judgment of the trial court in all other respects.

The following facts are relevant to the defendant’s

claims on appeal. The defendant met the victim’s

mother, Kim F.1

(Kim), in 2009, when she was four

months pregnant with N, the victim. The two began a

relationship, and, following the birth of N in June, 2010,

the defendant took on a paternal role until his incarceration2

in August, 2011, at which time the couple’s relationship ended. Following his release, the defendant

reconciled with Kim in May, 2013, and, shortly thereafter, Kim and N began to stay periodically at the defendant’s apartment in Willimantic.

On June 11, 2013, Ronald Kelly, a pediatrician, performed a routine medical examination of N, who was

then three years old. During the examination, Kelly

observed ‘‘some big bruises’’ on the child’s back that

Kim was unable to explain. The bruises were diagonal

and similar to the shape of three fingers on a person’s

hand. Kelly also noted that N was acting unusual; ‘‘she

was throwing herself on the ground, [and acting] totally

out of control.’’ Following the examination, Kelly, in

accordance with his responsibility as a mandatory

reporter,3

informed the Department of Children and

Families (department) that N had unexplained bruises.4

The department assigned a social worker, Rosiris

Espejo, to investigate the suspected abuse. Several days

after Kelly had informed the department, Espejo met

with Kim at the residence of N’s grandmother. During

their meeting, Espejo asked Kim to name the people

who were responsible for N’s care. She identified herself, the grandmother, and N’s daycare provider, Marion

Snow. She did not mention the defendant or the fact

that N had often spent time at his apartment.

On June 24, 2013, Kim brought N to the grandmother’s

house. When the grandmother saw N that day, she

noticed that N had ‘‘black and blue’’ bruises around her
eyes. Kim told her that the bruises were caused by a

fall.5 Later that day, when the grandmother attempted

to change N’s diaper and to give her a bath, N started

screaming and jumped into her grandmother’s arms. N

had never acted this way before and seemed scared,

as though ‘‘something came to her mind.’’

Two days later, on June 26, 2013, Kim and N stayed

at the defendant’s apartment. The defendant had rented

a room in the basement of a three-story house that was

occupied by several other individuals. When Kim and

N stayed at the apartment, Kim slept with the defendant

on a mattress on the floor, and N slept on a smaller

mattress beside them. That evening, Kim began to pack

some of her belongings, intending to leave with N and to

go to the grandmother’s house. The defendant became

angry, yelled at Kim and, in an effort to prevent her

from leaving, took her cell phone and car keys. The

defendant then went into the living room, just outside

the bedroom, and stayed there for most of the night

while Kim and N remained in the bedroom. At around

midnight, the defendant came back into the bedroom

to sleep.

In the early morning hours of June 27, 2013, N started

‘‘fussing and crying and wouldn’t settle down.’’ The

defendant got out of bed, went over to where N was

sleeping, and repeatedly and forcefully poked her in

the stomach. While he was poking her, he yelled at her:

‘‘This is what you do to me. You’re going to keep me

up? How do you like it?’’ After he poked her several

times, N started to cry. Kim picked her up and eventually

comforted her back to sleep.

Later that morning, the defendant left to attend a

therapy program at Natchaug Hospital. A short while

later, Kim and N woke up. N did not seem to be in any

apparent distress, and she ate her breakfast without

difficulty. Kim received a phone call from the defendant

asking her to come get him at Natchaug Hospital

because he felt sick and his therapist told him to go

home. After she picked him up and dropped him off at

the apartment, Kim went to the grandmother’s house

to get some medicine. When she got back to the apartment, she took a bath with N, during which she noticed

bruising on the child’s chest in the area where the defendant had poked her. At approximately 12:30 p.m., Kim

left for work, leaving N alone with the defendant.

While she was at work, Kim and the defendant

exchanged several text messages. At 1:42 p.m., the

defendant sent the following message: ‘‘So far so good

just brushed her hair her bump is still a little swollen

but it should be gone soon!’’6 Then, six minutes later,

he texted: ‘‘Hopefully her bump leaves soon! She’s

behaving really well!!!’’ At 1:52 p.m., Kim responded to

the second message: ‘‘Where is it?’’ Five minutes later,

the defendant answered: ‘‘I feel shitty I can’t breathe.

The same swollen side that [N] had. I noticed it when
I brushed her hair, she’s doing good tho[ugh]!!!’’

At 2:21 p.m., Kim texted the defendant: ‘‘You want

me to come get [N]?’’ He responded immediately: ‘‘She’s

good! She’s chilling, keeping me company.’’ After he

had asked Kim when she would be home, the defendant,

at 2:31 p.m., texted: ‘‘She is feisty!!!!’’ Then, six minutes

later, the defendant wrote: ‘‘Should I give her medicine?

She worries me because that bump takes so long to

go away. It’s like another came or something and the

bruising too! She should be ok!’’ At 2:40 p.m., the defendant texted: ‘‘She feels [warm] ma!’’ Kim responded at

2:41 p.m., with two separate messages: ‘‘The heater is

on remember, [because you’re] sick,’’ followed by: ‘‘So

that is prob[ably] why she feels warm.’’ Approximately

ten minutes later, the defendant wrote: ‘‘Her head still

looks swollen should I put ice [on it]?’’ Kim responded:

‘‘Yes.’’ The defendant then, at 2:52 p.m., texted: ‘‘And

her eye is like a [little] swollen too. But she won’t let

me!’’ He then sent a text at 3:05 p.m., which read: ‘‘I’m

putting ice [on it] now!’’ Approximately twenty minutes

later, the defendant wrote: ‘‘Put [N] in the [tub] to cool

her off she’s having fun!’’

The defendant sent Kim a text at 4:05 p.m., in which

he wrote: ‘‘[N] and I just puked.’’ One minute later, Kim

responded: ‘‘You both puked? Omg.’’ Then, at 4:10 p.m.,

Kim asked: ‘‘Did you make it to the bathroom at least?’’

At 4:11 p.m., the defendant replied: ‘‘[N’s] left eye is

strai[ght] but the [right] eye [is] still a [little] swollen,

another couple of days [and] she’ll be good!!!’’ Approximately ten minutes later, Kim asked: ‘‘Is she okay? Did

she puke a lot?’’ Immediately, the defendant answered:

‘‘[A little] bit.’’

At 5:34 p.m., the defendant texted: ‘‘Ok, I think [N]

is getting better because her eye is all swollen!’’ Then,

five minutes later, he wrote: ‘‘[N] and I took [a] hot

bath!!!’’ Approximately an hour later, the defendant sent

the following text: ‘‘Kim, I can’t take it. I’m in fucking

pain!!!!!’’ Kim responded four minutes later: ‘‘Let’s go

to the hospital. [I’ll] drop [N] off at my mom’s.’’ The

defendant wrote back immediately: ‘‘Give it a [little]

more. It’s [my] fucking throat.’’ At 7:45 p.m., the defendant texted: ‘‘[Damn], I can’t even eat my throat hurt[s]

that much!!!!!’’ Four minutes later, Kim responded: ‘‘I

don’t want you to stop breathing I’m worried.’’

Approximately an hour later, the defendant wrote:

‘‘[N] threw up again!!!!! All over the bed!!!’’ Then, a few

minutes later, he texted: ‘‘She’s pale I’m pale!!!! Wtf.’’

Twenty minutes later, at 9 p.m., he wrote: ‘‘Hurry.’’ One

minute later, Kim responded: ‘‘I think we need to go

to the emergency room.’’ Immediately, the defendant

replied: ‘‘[N] has too many bruises.’’ Later, at 9:23 p.m.,

the defendant wrote: ‘‘She’s eating oranges [a]nd talking.’’ Four minutes later, he texted: ‘‘Now that I think

about it that sh[it] look[s] like Lyme [disease]!’’
Sometime after 9 p.m., Kim arrived back at the defendant’s apartment. The defendant met her at the top of

the stairs leading to the basement and gave her money

to buy Tylenol for N. At this time, Kim did not go

downstairs to check on N. She drove to a local pharmacy, purchased Tylenol, and drove back to the apartment. When she arrived back, she went downstairs and

found N lying on the defendant’s mattress in the bedroom. N was ‘‘badly bruised from head to toe,’’ and the

mattress was covered in vomit. Kim noticed that N was

wearing a different outfit than the one she had dressed

her in before she left for work. Concerned that there

might be more injuries in addition to the ones she could

see, Kim undressed N and found a large mark on her

stomach. To Kim, it appeared as though something had

bitten N. She observed bruises and scratches on her

feet and ‘‘marks all over her body,’’ and her head was

swollen and bruised on the right side.7 Kim testified

that N felt cold and clammy, and that she noticed that

the child was having trouble breathing.

Kim dressed N in fresh clothes and carried her outside

to the car to go to the hospital. As she put her in the

car, Kim realized that N had stopped breathing. Kim

took her out of the car and ran to the sidewalk in

front of the apartment. She put N on the ground and

attempted to perform cardiopulmonary resuscitation

(CPR) but stopped when she started to panic. Kim

screamed for help, and, hearing her cries, one of the

defendant’s roommates, Robert Trevorrow, came outside to assist her. Trevorrow resumed CPR while Kim

dialed 911 and requested an ambulance. At some point,

the defendant joined Kim and Trevorrow outside on

the sidewalk and attempted to assist in the efforts to

resuscitate N. When the ambulance arrived, Kim handed

N to the responding emergency personnel and joined

them in the back of the ambulance. The defendant, at

some point, also entered the rear of the ambulance;

however, he was told to ride up front with the driver

in order to give more space to the treating technicians.

Christopher Reddy, a paramedic, arrived on scene at

10:23 p.m., shortly after the ambulance. He entered the

back of the ambulance and observed that N had no

pulse and was not breathing and that emergency personnel had started to perform CPR. He also noticed that

N had bruises all over her body, including bruising and

swelling in the area around her right eye, and that her

abdomen appeared ‘‘distended’’ and ‘‘rigid,’’ which was

unusual for a three year old child. After being on scene

for approximately two minutes, the ambulance left for

Windham Hospital and arrived there approximately

three minutes later.

At Windham Hospital, N was transferred to the care

of Max Goldstein, a physician working in the emergency

department that evening. Goldstein observed that N had

sustained numerous injuries. He testified that bruises
were scattered diffusely throughout her body; she had

what appeared to be bite marks on her skin; there was

trauma to her vaginal, perineal, and anal areas, and

‘‘the vagina itself had trauma’’; and there was extensive

swelling behind her face. Goldstein and medical personnel continued resuscitation efforts but ultimately were

unsuccessful in reviving N, who was pronounced dead

at 11:15 p.m.8

Notified of N’s death, state police detectives from

the eastern district major crimes squad arrived at the

hospital and interviewed Kim and the defendant separately. During the interview, the defendant claimed that

N had been sick for a couple of days and that she had

been vomiting periodically during this time. When asked

about the bruises to N’s face and body, he said that

she had rolled off her mattress and hit her head on a

baseboard heater several days earlier, and that she had

caused the other bruises to herself during a temper

tantrum. With regard to the specific events that took

place on June 27, 2013, the defendant stated that N was

not acting herself, ‘‘she was out of it,’’ and she was

throwing up all day and crying a lot. He stated that he

gave her a bath at around 6 p.m., dressed her in new

clothes, and then watched a movie with her. Throughout

the interview, the defendant repeatedly denied hitting

or abusing N in any manner.

In the early morning hours of June 28, 2013, the defendant was arrested in connection with N’s death and

transported to Troop K in Colchester. After he read and

waived his Miranda9

rights, the defendant agreed to an

interview with detectives. During this interview, the

defendant expressed suicidal feelings and invoked his

right to counsel. The detectives stopped questioning

him and told him that if he wanted to speak with them

again, he would have to initiate the conversation. A

short while later, the defendant requested to speak with

the detectives, and he again read and waived his

Miranda rights. The defendant claimed, during this second interview, that he was playing with N, swinging

her around by her arms, and that she hit her head on

a metal pole in the middle of the bedroom. Although

he initially denied hitting her, after further questioning,

he admitted that he spanked her because she would

not stop crying. When asked about the injuries to N’s

vaginal, perineal, and anal areas, he said he was ‘‘spanking the shit out of her there . . . on her ass,’’ ‘‘slapping

[her] ass’’ and that he ‘‘might’’ have hit her in the vaginal,

perineal, and anal areas. He also told the detectives

that ‘‘she was kicking and moving and that he was just

spanking away.’’ When detectives inquired about the

bite marks all over N’s body, he replied: ‘‘I think I overdid it with the biting.’’

Following his arrest, the defendant was charged by

long form information with assault in the first degree

in violation of § 53a-59 (a) (3), aggravated sexual assault
of a minor in violation of §§ 53a-70c (a) (3) and 53a-70

(a) (2), risk of injury to a child in violation of § 53-21

(a) (1), and manslaughter in the first degree in violation

of § 53a-55 (a) (3). The defendant waived his right to

a jury trial. After an eight day trial, the court found the

defendant guilty on all counts and sentenced him to

a total effective term of thirty years of incarceration,

followed by fifteen years of special parole.10 From this

judgment the defendant now appeals. Additional facts

will be set forth as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to convict him of aggravated sexual assault of a minor.11 Specifically, the

defendant argues that the state failed to prove that

he engaged in sexual intercourse with N, within the

meaning of §§ 53a-70c (a) (3) and 53a-70 (a) (2), because

there was no evidence of penetration. We disagree.

The following facts are relevant to our resolution of

this claim. During the defendant’s second interview at

Troop K, detectives asked him to explain the injuries

to N’s vaginal and anal regions. The defendant

responded that he ‘‘was spanking the shit out of her

. . . ass’’ and that he ‘‘might have hit her right there.’’

When asked if he spanked N ‘‘in the front too,’’ the

defendant said: ‘‘[S]he was kicking and moving, and

[he] was just spanking away.’’ When asked to admit

whether he sexually assaulted the child, the defendant

replied: ‘‘I didn’t sexually assault her. I spanked her

there. I don’t know if that’s the same thing, [or] if you

guys are going to classify it as that.’’ Finally, the defendant denied that any of his semen would be found on

the child.12

At trial, Susan Williams, an associate medical examiner with the Office of the Chief Medical Examiner,

testified that on June 28, 2013, she had performed an

autopsy of N’s body. During her examination, Williams

observed injuries to N’s vaginal, perineal, and anal

areas. With respect to the injuries to N’s vagina, Williams noted bruising and a ‘‘small laceration’’ to the

labia majora and a contusion to the soft tissue ‘‘on the

inner portion of the labia majora.’’ Williams opined that

these injuries were the result of blunt force trauma.

Additionally, Williams testified that she performed an

internal examination of N’s rectum, in which she found

that the pelvic soft tissue was hemorrhagic. In Williams’

opinion, because this area is protected by the pelvic

ring, the only way that it could be injured is with ‘‘something being up there adjacent to it,’’ i.e., the insertion

of some object into the vagina or rectum. When asked

whether these injuries were consistent with a child

being spanked, Williams testified: ‘‘I wouldn’t expect

spanking to cause the deep tissue and soft tissue, fat,

muscle hemorrhage that I saw. I [examined] the section

in the rectum which is above the anus. I would not
expect that to have bled way up there.’’

In providing the evidentiary basis for its conclusion

that the defendant engaged in sexual intercourse as

defined by §§ 53a-70c (a) (3) and 53a-70 (a) (2), the

court stated the following: ‘‘The court thus finds that

the defendant was the person who inflicted the injuries

and contusions to [N’s] inner thighs, the area over her

pubic bone, and the outside and inside of the labia

majora, and that those injuries were inflicted by the

application of physical force on those areas by the

defendant. The court further finds, however, that there

is insufficient evidence to conclude that the defendant

caused the hemorrhaging of the deep tissue between

the anus and the vagina.

‘‘At the time of her death, [N] was three years old.

As stated before, the defendant is an adult male well

in excess of two years older than the victim. The court

concludes therefore that the state has proven beyond a

reasonable doubt that the defendant engaged in vaginal

intercourse as defined in our statutes and our case law

with [N], a person not married to him; that at the time

of the act, [N] was less than thirteen years of age and

that the defendant was more than two years older than

her. Furthermore, the court finds that the defendant

used violence to commit the sexual intercourse.’’

On appeal, the defendant argues that the court’s evidentiary basis for concluding that he engaged in vaginal

sexual intercourse with N is insufficient. We do not

agree.

We begin by setting forth the applicable standard of

review. ‘‘In reviewing the sufficiency of the evidence

to support a criminal conviction we apply a two-part

test. First, we construe the evidence in the light most

favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact]

reasonably could have concluded that the cumulative

force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of

fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences

from the evidence or facts established by the evidence

it deems to be reasonable and logical. . . . This does

not require that each subordinate conclusion established by or inferred from the evidence, or even from

other inferences, be proved beyond a reasonable doubt

. . . because this court has held that a [trier’s] factual

inferences that support a guilty verdict need only be

reasonable.’’ (Internal quotation marks omitted.) State

v. Hector M., 148 Conn. App. 378, 384, 85 A.3d 1188,

cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).

‘‘While the [trier of fact] must find every element

proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the [trier of fact] to

conclude that a basic fact or an inferred fact is true,

the [trier] is permitted to consider the fact proven and

may consider it in combination with other proven facts

in determining whether the cumulative effect of all the

evidence proves the defendant guilty of all the elements

of the crime charged beyond a reasonable doubt. . . .

Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier] is not required to accept as

dispositive those inferences that are consistent with

the defendant’s innocence. . . . As we have often

noted, proof beyond a reasonable doubt does not mean

proof beyond all possible doubt . . . nor does proof

beyond a reasonable doubt require acceptance of every

hypothesis of innocence posed by the defendant that,

had it been found credible by the [trier], would have

resulted in an acquittal. . . . On appeal, we do not ask

whether there is a reasonable view of the evidence that

would support a reasonable hypothesis of innocence.

We ask, instead, whether there is a reasonable view of

the evidence that supports the [trier’s] verdict of guilty.’’

(Citations omitted; internal quotation marks omitted.)

State v. Torres, 242 Conn. 485, 489–90, 698 A.2d 898

(1997).

For the purposes of §§ 53a-70c (a) (3) and 53a-70 (a)

(2), sexual intercourse is defined as ‘‘vaginal intercourse, anal intercourse, fellatio or cunnilingus

between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration,

however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and 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.’’ (Emphasis added.)

General Statutes § 53a-65 (2). Our Supreme Court in

State v. Albert, 252 Conn. 795, 809, 750 A.2d 1037 (2000),

recognized that ‘‘there is nothing to suggest that the

term genital opening was intended to require that penetration occur beyond the labia majora to at least the

labia minora . . . .’’ State v. Hector M., supra, 148

Conn. App. 386.

‘‘Under common usage of the language, the term genital opening means an opening associated with the genitals. The word genitals means genitalia . . . which

means the organs of the reproductive system; [especially]: the external genital organs. . . . Similarly,

Taber’s Cyclopedic Medical Dictionary defines genitals

and genitalia as organs of generation; reproductive

organs, and states that the female external genitalia

collectively are termed the vulva or pudendum and

include the . . . labia majora and that the internal genitalia are the two ovaries, fallopian tubes, uterus, and

vagina. . . . Thus, as the term genitals refers especially
to the external genital organs, which include the labia

majora, it would be unreasonable to conclude that when

the legislature used the term genital opening, it meant

to exclude the external genital organs and refer only

to the internal genital organs such as the vagina.

‘‘Opening is defined in common usage as something

that is open . . . . Open, in turn, is defined as spread

out: unfolded: having the parts or surfaces laid back in

an expanded position: not drawn together, folded, or

contracted . . . . We previously noted that the labia

majora are defined as the outer fatty folds bounding

the vulva. . . .

‘‘From these definitions, it can be deduced that: (1)

the term genitals commonly refers to the external reproductive organs, which include, on a female, the labia

majora; (2) the term opening means something that is

unfolded or spread out; and (3) the labia majora are

folds. Thus, we conclude that the opening between the

folds, i.e., labia majora, is the genital opening and that

the labia majora form the boundaries of the genital

opening. Moreover, because we have construed the

term vaginal intercourse, as that term is used in § 53a65 (2), to include digital penetration, however slight,

of the genital opening . . . we conclude that digital

penetration, however slight, of the labia majora is sufficient penetration to constitute vaginal intercourse

under § 53a-65 (2).’’ (Citations omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) State v. Albert, supra, 252 Conn. 807–809.

In Albert, our Supreme Court determined that the

evidence was sufficient to convict a defendant of sexual

assault in the first degree on the basis of the victim’s

testimony that the defendant ‘‘touched ‘[i]nside’ her

crotch,’’ and two scrapes that were observed on the

victim’s labia majora, which a pediatrician testified

were consistent with penetration of the genital opening.

Id., 813–14. In rejecting the defendant’s argument that

there was no evidence to infer that the defendant ‘‘did

anything other than touch the surface of [the victim’s]

labia majora,’’ the court concluded that a reasonable

jury could infer from the evidence that ‘‘the defendant’s

finger entered the victim with some force and passed

beyond the actual location of the scrapes on the victim’s

labia major.’’ (Internal quotation marks omitted.) Id.,

814. Applying the language of § 53a-65 (2) and Albert’s

judicial gloss, this court has upheld sexual assault convictions predicated on similar circumstantial proof of

penetration. See, e.g., State v. Gerald A., 183 Conn. App.

82, 94, 191 A.3d 1003 (‘‘jury was free to infer, on the

basis of this record and its common sense, that if [the

victim] flinched and clenched because [i]t hurt when

the defendant tried to put his finger inside of her vagina,

that the defendant digitally penetrated, at the very least,

[the victim’s] labia majora.’’ [internal quotation marks

omitted]), cert. denied, 330 Conn. 914, 193 A.3d 1210
(2018); State v. Elmer G., 176 Conn. App. 343, 354, 170

A.3d 749 (concluding that jury could infer that when

defendant forced victim to put her ‘‘mouth on his penis,’’

that defendant did so ‘‘in a manner that caused his

penis to enter into her mouth’’), cert. granted on other

grounds, 327 Conn. 971, 173 A.3d 952 (2017); State v.

Edwin M., 124 Conn. App. 707, 725–26 and n.7, 6 A.3d

124 (2010) (evidence that anal injury consistent with

penile penetration sufficient for the purposes of

affirming sexual assault conviction), cert. denied, 299

Conn. 922, 11 A.3d 151 (2011).

Here, the defendant contends that the application

of physical force on N’s vagina and labia majora was

insufficient to support a conviction of sexual assault

because there was no evidence that he penetrated N’s

genital opening. This argument, however, misapprehends the evidence, the court’s explication of its verdict,

and the controlling principles discussed previously.

Most significantly, the court credited the testimony of

Williams that N had suffered, inter alia, a small laceration that started outside the right labia majora and

extended inside the labia majora, as well as a contusion

inside the labia majora, and found that the defendant

had caused such injuries. Consistent with the principles

set forth in State v. Albert, supra, 252 Conn. 809, such

evidence demonstrates sufficient penetration of the

labia majora to constitute vaginal intercourse under

§ 53a-65 (2). See id., 812 (‘‘slight penetration does not

require vaginal penetration’’); see also id., 813 (‘‘we

disagree with the defendant’s suggestion that a defendant must put his finger or his fingers ‘beyond the labia

majora’ for his conduct to fall within the definition of

sexual intercourse in § 53a-65 [2]’’). With regard to the

defendant’s challenge to the court’s statement that

‘‘those injuries were inflicted by the application of physical force on those areas by the defendant,’’ the defendant effectively ignores that such finding was relevant

to and necessary for the court’s finding that the defendant was guilty of aggravated sexual assault of a minor

pursuant to § 53a-70c (a) (3), namely, that the defendant

‘‘used violence to commit [the] offense’’ of sexual

assault in violation of § 53a-70 (a) (2). The court had

explained previously that because ‘‘violence’’ is not a

defined term for purposes of § 53a-70c (a) (3), it was

using a dictionary definition, i.e., ‘‘exertion of physical

force so as to injure or abuse.’’ On the basis of the

foregoing, we conclude that there was sufficient evidence to support the defendant’s conviction of aggravated sexual assault of a minor.

Accordingly, construing the evidence in the light most

favorable to sustaining the court’s finding of guilt, we

conclude that there was sufficient evidence from which

the court reasonably could have found beyond a reasonable doubt that the defendant was guilty of aggravated

sexual assault of a minor.
II

Next, the defendant claims on appeal that his conviction of both assault in the first degree and manslaughter

in the first degree violates the constitutional guarantee

against double jeopardy. Specifically, the defendant

argues that his conviction of those charges arises out

of the same transaction and that the assault charge is

a lesser included offense of the manslaughter charge.

Accordingly, the defendant submits that, under a

Blockburger13 analysis, his conviction of assault in the

first degree should be vacated. We agree.

As a threshold matter we must determine whether

this claim was preserved for review. The defendant

argues that because it was raised prior to sentencing,

the claim was preserved. We agree with the state, however, that the claim was not preserved because it was

not raised distinctly at trial. See State v. Smith, 100

Conn. App. 313, 320 n.6, 917 A.2d 1017 (‘‘[a] party cannot

preserve grounds for reversing a trial court decision by

raising them for the first time in a postverdict motion’’

[internal quotation marks omitted]), cert. denied, 282

Conn. 920, 925 A.2d 1102 (2007). Irrespective of the fact

that the claim was unpreserved, it is still reviewable

pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989), as modified by In re Yasiel R., 317

Conn. 773, 781, 120 A.3d 1188 (2015). ‘‘Under Golding,

a defendant may prevail on an unpreserved claim only

if the following conditions are met: (1) the record is

adequate to review the alleged claim of error; (2) the

claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Wright, 319 Conn. 684, 688–89, 127 A.3d 147

(2015). Because the record is adequate for our review,

and the defendant’s claim that his conviction violated

his right against being placed in double jeopardy is of

constitutional magnitude, our inquiry focuses on

whether the violation alleged by the defendant exists

and deprived him of a fair trial. See id., 689.

The following additional facts and procedural history

are relevant to our analysis of this issue. The defendant

was charged by long form information with, inter alia,

one count of assault in the first degree and one count

of manslaughter in the first degree. With respect to the

assault charge, the state alleged: ‘‘[O]n or about June 27,

2013 . . . [the defendant] acting under circumstances

evincing an extreme indifference to human life, did

recklessly engage in conduct which created a risk of

death to another person, to wit: [N] . . . and did

thereby cause serious physical injury to [N] . . . .’’14

As to the charge of manslaughter in the first degree,
the state alleged: ‘‘[O]n or about June 27, 2013 . . . [the

defendant] under circumstances evincing an extreme

indifference to human life, did recklessly engage in conduct which created a grave risk of death to another

person, to wit: [N] . . . and did thereby cause the death

of [N] . . . .’’15 At sentencing, the trial court, sua

sponte, questioned whether the defendant could be convicted of both manslaughter in the first degree and

assault in the first degree.

‘‘The Court: It would seem to the court that the assault

conviction on the first count is a lesser included offense

of the manslaughter conviction on the fourth count.

. . .

‘‘[The Prosecutor]: Your Honor, the state’s position

with respect to the assault and the manslaughter [convictions] . . . is that they are two separate offenses.

. . .

‘‘[O]ur position is that the defendant is to be sentenced separately on the assault in the first degree and

the manslaughter because we have the head injury

which is separate from the forceful poking which

caused the injuries to the bowel and the mesentery

which are the cause of death. But we have the trauma

to both sides of the head and the 100 milliliters of blood

pooling in the child’s skull cavity, as opposed to the

300 milliliters of blood pooling in her abdominal cavity.

So it’s our position that we have a separate incident

and, therefore, separate sentencing. . . .

‘‘The Court: All right. Well, I’m convinced by the

state’s argument that the assault in the first degree—

more specifically, the head injury—did not contribute

to the cause for death and so that may be a valid consideration. Accordingly, the court will not vacate the conviction on the assault in the first degree.’’

In concluding, however, that the defendant’s conviction of assault in the first degree and manslaughter in

the first degree arose from separate transactions, the

court failed to consider that the state, during closing

argument, relied on the injuries to N’s abdomen to support its position that the defendant was guilty of both

counts.16 In its appellate brief, the state concedes that,

in light of its closing argument, the assault conviction

and manslaughter conviction did arise out of the same

transaction.17 Nonetheless, the state contends that we

should still affirm the defendant’s conviction of assault

in the first degree because it is not a lesser included

offense of the manslaughter conviction. In response,

the defendant argues that one cannot commit manslaughter, as it is charged in this case, without also

committing an assault and, therefore, the conviction

for assault in the first degree violates his constitutional

right against double jeopardy.

Before addressing this claim, we note that ‘‘[o]ur standard of review for analyzing constitutional claims such
as double jeopardy violations prohibited by the fifth

amendment to the United States constitution presents

an issue of constitutional and statutory interpretation

over which our review is plenary.’’ (Internal quotation

marks omitted.) State v. Arokium, 143 Conn. App. 419,

434, 71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d

31 (2013). ‘‘The fifth amendment to the United States

constitution provides in relevant part: No person shall

. . . be subject for the same offense to be twice put in

jeopardy of life or limb . . . . The double jeopardy

clause of the fifth amendment is made applicable to the

states through the due process clause of the fourteenth

amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have

held that the due process guarantees of [the Connecticut constitution] include protection against double

jeopardy. . . . We have further recognized that the

[d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the

same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And

it protects against multiple punishments for the same

offense.’’ (Internal quotation marks omitted.) State v.

Underwood, 142 Conn. App. 666, 681, 64 A.3d 1274, cert.

denied, 310 Conn. 927, 78 A.3d 146 (2013).

‘‘Double jeopardy analysis in the context of a single

trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges

must arise out of the same act or transaction [step one].

Second, it must be determined whether the charged

crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met.

. . . At step two, we [t]raditionally . . . have applied

the Blockburger test to determine whether two statutes

criminalize the same offense, thus placing a defendant

prosecuted under both statutes in double jeopardy:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses

or only one, is whether each provision requires proof

of a fact which the other does not.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

State v. Porter, 328 Conn. 648, 655, 182 A.3d 625 (2018).

‘‘The test used to determine whether one crime is a

lesser offense included within another crime is whether

it is not possible to commit the greater offense, in the

manner described in the information . . . without having first committed the lesser . . . . This . . . test is

satisfied if the lesser offense does not require any element which is not needed to commit the greater offense.

. . . Therefore, a lesser included offense of a greater

offense exists if a finding of guilt of the greater offense

necessarily involves a finding of guilt of the lesser

offense.’’ (Citation omitted; internal quotation marks

omitted.) State v. Carlos P., 171 Conn. App. 530, 538,

157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d
321 (2017).

‘‘When conducting the first inquiry, however, it is not

uncommon that we look to the evidence at trial and to

the state’s theory of the case.’’ State v. Schovanec, 326

Conn. 310, 327, 163 A.3d 581 (2017). The second step

of the Blockburger test, however, ‘‘is a technical one

and examines only the statutes, charging documents,

and bill of particulars as opposed to the evidence presented at trial.’’ (Internal quotation marks omitted.)

State v. Mark, 170 Conn. App. 254, 267, 154 A.3d 572,

cert. denied, 324 Conn. 926, 155 A.3d 1269 (2017). As

we have already acknowledged, the state concedes that

the defendant’s conviction of the charges at issue arises

from the same transaction. We limit our inquiry, therefore, to the second step in the analysis: Whether assault

in the first degree, as charged, is a lesser included

offense of manslaughter in the first degree, and, thus,

the two crimes constitute the same offense under

Blockburger.

The defendant argues that his conviction of assault

in the first degree and manslaughter in the first degree

constitutes the same offense because one cannot commit manslaughter without also committing assault in

the first degree as it was charged in this case. In

asserting his claim, the defendant acknowledges that

there is an obvious difference with respect to the result

element for both crimes. Specifically, to be convicted

of manslaughter, the state must show that the defendant

caused the death of another person, whereas a conviction of assault in the first degree only requires proof

of serious physical injury.18 Nevertheless, the defendant

submits that one cannot cause the death of another in

the manner described in the information, without first

causing serious physical injury to that person. We

agree.

The state argues that this case is controlled by State

v. Alvarez, 257 Conn. 782, 783, 778 A.2d 938 (2001),

in which our Supreme Court affirmed a defendant’s

conviction of both manslaughter and assault in the first

degree arising from the same transaction. Upon review,

however, we believe that Alvarez is inapposite.

Although the defendant in Alvarez was charged with

both manslaughter in the first degree and assault in the

first degree, he was charged with assault under § 53a59 (a) (1) and (4). Pursuant to this charge, the state

was required to prove that ‘‘the defendant with intent

to cause serious physical injury to [the victim] while

aided by two or more persons actually present did

cause serious physical injury [to the victim] . . . by

means of a dangerous instrument . . . .’’ (Emphasis

added; internal quotation marks omitted.) Id., 790. Here,

the defendant was charged with assault in the first

degree under subsection (a) (3), which only requires

proof that the defendant ‘‘under circumstances evincing

an extreme indifference to human life . . . recklessly
engages in conduct which creates a risk of death to

another person, and thereby causes serious physical

injury to another person . . . .’’ As the defendant in

this case correctly contends, proof that he caused the

victim serious physical injury is subsumed within the

evidentiary requirement, under the manslaughter

charge, that he caused the victim’s death. Unlike Alvarez, the state was not required to prove an additional

element, e.g., the assistance of two or more persons

or the use of a dangerous instrument, to convict the

defendant of assault in the first degree.

Additionally, the state argues that the defendant’s

double jeopardy claim fails because there is no legal

requirement that a defendant actually inflict serious

physical injury in order to be held criminally liable

for causing the death of another. We believe that this

assertion conflates the principle that one can be responsible for a person’s death without physically striking

the victim; see, e.g., State v. Spates, 176 Conn. 227, 232,

405 A.2d 656 (1978) (finding trial court did not err when

it instructed that jury ‘‘could convict the defendant of

manslaughter if [it] found that the defendant inflicted

emotional injury, stress or trauma which proximately

caused [victim’s] death’’ [internal quotation marks omitted]); with the present issue of whether one can cause

another’s death without also causing that person serious physical injury. Considering the theoretical possibilities in this case, and not the evidence, as we are

required to do in the second step of the Blockburger

analysis, we are aware of no conceivable circumstance

in which the defendant could have caused N’s death

without also having caused her serious physical injury

as it is defined under § 53a-3 (4). Accordingly, we conclude that a constitutional violation exists that deprived

the defendant of a fair trial.19

As to Golding’s fourth prong, we further conclude,

and the state does not argue to the contrary, that the

error is not harmless. Although we acknowledge that

the court sentenced the defendant to serve a concurrent

sentence for the lesser and greater offenses, we recognize that the conviction of both of the separate offenses,

in their own right, impermissibly harm the defendant.

See State v. Nelson, 118 Conn. App. 831, 855, 986 A.2d

311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).

Thus, pursuant to State v. Polanco, 308 Conn. 242, 255,

61 A.3d 1084 (2013), we remand the case to the trial

court with direction to vacate the conviction of the

lesser included offense of assault in the first degree.20

The judgment is reversed only as to the conviction

of assault in the first degree and the case is remanded

with direction to vacate that conviction; the judgment

is affirmed in all other respects.

In this opinion the other judges concurred.

1

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

victims of the crimes of sexual assault and 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.

2 Kim testified that the defendant was incarcerated in connection with an

incident of domestic violence against her.

3 See General Statutes § 17a-101 (b) (1).

4 At trial, Kim testified that the defendant had spanked N, causing the

bruises that Kelly observed.

5 Kim first noticed the bruises after she had left N alone with the defendant

on June 22, 2013. The defendant told Kim that N had fallen and hit her head

on the baseboard heater in his bedroom.

6 This text appears to reference the injury that N sustained on June 22,

2013. See footnote 5 of this opinion.

7 Kim saw that the bruising to the right side of N’s head was different

from the bruising that the child had sustained from purportedly hitting her

head on the baseboard heater several days earlier.

8 An autopsy conducted on June 28, 2013, by Susan Williams, an associate

medical examiner, concluded that N died from fatal child abuse syndrome

with blunt abdominal trauma.

9 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

10 The court imposed a mandatory sentence of ten years of incarceration

on count one, the assault in the first degree conviction, to be served concurrently with count two. The court imposed a mandatory sentence of twentyfive years of incarceration on count two, the aggravated sexual assault of

a minor conviction. With respect to count three, the risk of injury conviction,

the court imposed a ten year sentence to be served concurrently with the

sentence on count two. On count four, the manslaughter in the first degree

conviction, the court imposed a sentence of five years of incarceration

followed by fifteen years of special parole, to be served consecutively to

the sentence on count two.

11 General Statutes § 53a-70c (a) provides in relevant part: ‘‘A person is

guilty of aggravated sexual assault of a minor when such person commits

a violation of subdivision (2) of subsection (a) of section 53-21 or section

53a-70, 53a-70a, 53a-71, 53a-86, 53a-87 or 53a-196a and the victim of such

offense is under thirteen years of age, and . . . (3) such person used violence to commit such offense against the victim . . . .’’

General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is guilty

of sexual assault in the first degree when such person . . . (2) engages in

sexual intercourse with another person and such other person is under

thirteen years of age and the actor is more than two years older than such

person . . . .’’

12 Vaginal and perineal swabs taken from N’s body were negative for the

presence of semen. Swabs taken from N’s anal area were positive for proteins

that are present in semen; however, the swabs were negative for the presence

of spermatozoa and male DNA.

13 See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.

Ed. 306 (1932).

14 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when . . . (3) under circumstances

evincing an extreme indifference to human life he recklessly engages in

conduct which creates a risk of death to another person, and thereby causes

serious physical injury to another person . . . .’’

15 General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the first degree when . . . (3) under circumstances

evincing an extreme indifference to human life, he recklessly engages in

conduct which creates a grave risk of death to another person, and thereby

causes the death of another person.’’

16 During closing argument the state argued: ‘‘As to count one, Your Honor,

the state has proven beyond a reasonable doubt each and every element of

the offense, and he is guilty. When the defendant inflicted blunt force trauma

to [N’s] head, that was reckless conduct and that was conduct in and of

itself that created a risk of [N’s] death. The head trauma did not cause her

death, per se, but it did create the risk of her death, and it was reckless.

And this repetitive trauma to her abdomen was also reckless and that indeed

did, not only cause, but create a risk in [N’s] death as well.

* * *

‘‘And, finally, Your Honor, as to count four, manslaughter in the first

degree, we have proven each and every element beyond a reasonable doubt.

‘‘When the defendant engaged in repetitive trauma to [N’s] abdomen, he

engaged in reckless conduct. And that conduct also created a grave risk of
death and ultimately caused her death. Dr. Williams testified that she ruled

the cause of death was fatal child abuse syndrome with blunt trauma, and

she called it a homicide, and she indicated that there were hemorrhagic

and necrotic injuries and that she bled to death, which caused her death.’’

17 ‘‘The state agrees with the defendant that the conduct alleged in count

one and count four arose out of the same act or transaction because the

state, in closing argument, relied on the injuries to N’s abdomen to support

both the assault and manslaughter convictions.’’

18 General Statutes § 53a-3 (4) defines ‘‘serious physical injury’’ as ‘‘physical

injury which creates a substantial risk of death, or which causes serious

disfigurement, serious impairment of health or serious loss or impairment

of the function of any bodily organ . . . .’’

19 We note that ‘‘[t]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.

. . . Where there is no clear indication of a contrary legislative intent,

however, the Blockburger presumption controls.’’ (Internal quotation marks

omitted.) State v. Vasquez, 66 Conn. App. 118, 125, 783 A.2d 1183, cert.

denied, 258 Conn. 941, 786 A.2d 428 (2001). The state cites no authority,

nor are we aware of any, that supports the conclusion that the legislature

intended to permit multiple punishments for a single transaction involving

the offenses charged in this case. We defer, therefore, to the Blockburger

presumption that the defendant’s conviction of assault in the first degree,

as charged, is a lesser included offense of manslaughter in the first degree.

20 In vacating the defendant’s conviction of assault in the first degree, we

note that the sentence imposed for this conviction was to run concurrent

with the sentence imposed for the conviction of aggravated sexual assault

of a minor. Accordingly, it is unnecessary to remand this case to the trial

court for resentencing. See State v. Graham S., 149 Conn. App. 334, 346,

87 A.3d 1182 (‘‘we have held that when some of a defendant’s convictions are

reversed, and the trial court clearly intended that a nonreversed conviction

control its sentencing scheme, remand for resentencing is not necessary

where . . . vacating the accompanying sentences will not frustrate the trial

court’s intent’’ [internal quotation marks omitted]), cert. denied, 312 Conn.

912, 93 A.3d 595 (2014).