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STATE OF CONNECTICUT v. JUAN C.*

(AC 37552)

Keller, Prescott and West, Js.

Argued September 21, 2016—officially released January 10, 2017

(Appeal from Superior Court, judicial district of

Hartford, Bentivegna, J.)

Heather N. Wong, certified legal intern, with whom

was Glenn W. Falk, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Richard J. Rubino, senior assistant state’s

attorney, for the appellee (state).
Opinion

WEST, J. The defendant, Juan C., appeals from the

judgment of conviction, rendered after a jury trial, of

one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (2),1 and one count of risk of injury to a

child in violation of General Statutes § 53-21 (a) (1).2

On appeal, the defendant claims that the trial court,

Bentivegna, J., improperly (1) refused to grant his

request for a continuance of his trial, and (2) denied

his motion for a judgment of acquittal as to the first

count, sexual assault in the first degree. We affirm the

trial court’s judgment in part and reverse the judgment

in part.

The jury reasonably could have found the following

facts. The defendant is N’s3 biological father and,

although N has always lived with her mother, she visited

the defendant frequently between her birth in October,

1997, and 2005. During that time, both N and the defendant lived in New York. The defendant later moved to

Hartford, and N did not see the defendant from 2005

until the summer of 2008, when he ‘‘popped back up’’

at the house of N’s mother and asked to spend more

time with N. N’s mother agreed, and a few weeks later,

in July, 2008, the defendant drove to New York to pick

up N and brought her to his apartment in Hartford. N

was ten years old at the time.4

At some point during the visit, while they were home

alone, the defendant called N into his room to watch

cartoons on television. The defendant was lying in his

bed with only his boxer shorts on, and N was wearing

a T-shirt, pajama pants, and underwear. N entered the

bedroom, and the defendant asked her to lie on the bed

with him, which she did. The defendant then asked N

to move closer to him and lie on his chest, which she

did. The defendant began rubbing N’s back and buttocks

over her clothing. He then put his hands under N’s

pajama pants and underwear and penetrated her vagina

with his finger. While doing so, the defendant masturbated with his other hand. N then got off the bed and

went back to her own room, sat on her bed, and

watched television.

N called her mother at some point after the incident

to tell her that she wanted to go home to New York,

but did not disclose what had happened. The defendant

claimed that he did not have enough money for gas to

drive her home, so N stayed in Hartford for a few more

days. After he brought her home, the defendant ‘‘disappeared’’ again, and N did not see him for another two

years. N did not disclose to anyone that the July, 2008

incident had occurred until October, 2010, when she

told her teacher and her mother. Subsequently, New

York Child Protective Services (child protective ser-
vices), the Connecticut Department of Children and

Families (department), and the Hartford Police Department became involved, and the defendant was arrested.

Before the start of the evidentiary portion of the trial,

the defendant requested a continuance due to the fact

that he had received a department report that morning

that mentioned the child protective services investigation, and he wanted time to obtain more information

about the New York investigation. The court denied his

request and proceeded to trial. At trial, N, her mother,

a Hartford police officer, and a licensed clinical social

worker testified for the state. At the close of the state’s

evidence and again at the close of his own evidence,

the defendant moved for a judgment of acquittal as to

count one, charging sexual assault in the first degree.

The court denied the defendant’s motion.

On July 17, 2014, the jury found the defendant guilty

on all three counts. The court sentenced the defendant

on October 27, 2014, to the following: twenty-five years

incarceration with a mandatory minimum of five years

incarceration, execution suspended after twelve years,

and fifteen years of probation for the first degree sexual

assault conviction; twenty years incarceration with a

mandatory minimum of five years incarceration, execution suspended after twelve years, and fifteen years of

probation for the risk of injury to a child conviction

under § 53-21 (a) (2);5 and ten years incarceration, execution suspended after five years, and fifteen years of

probation for the risk of injury to a child conviction

under § 53-21 (a)(1). The court ordered all three sentences to run concurrently for a total effective sentence of

twenty-five years incarceration, suspended after twelve

years, and fifteen years of probation. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

I

The defendant’s first claim on appeal is that the court

erred in refusing to grant a continuance, which the

defendant requested on the morning of trial to allow

him to obtain newly discovered information about the

child protective services investigation contained in the

department protocol. Specifically, the defendant argues

that the child protective services investigation records

would likely contain material essential to his defense,

which would cast doubt on the veracity of N’s statements regarding the defendant’s prior uncharged misconduct. The state argues that the court did not abuse

its discretion in denying the defendant’s request. We

agree with the state.

The record reveals the following additional facts and

procedural history relevant to this claim. In addition to

the allegations that the defendant sexually assaulted

N in Hartford in July, 2008, there are also uncharged

misconduct allegations that the defendant sexually
assaulted N in New York in 2005. The court allowed

the state to question N at trial about this uncharged

conduct, and she testified that during a visit in New

York with the defendant in 2005, while N was seven

years old, the defendant sexually assaulted her by fondling her vagina to see if she had ‘‘wet [her]self.’’ N did

not disclose this incident until October, 2010, when she

also told her mother about the July, 2008 Hartford

incident.

There was evidence presented at trial that, shortly

after N’s disclosure, her mother contacted child protective services in New York, which then opened an investigation into the matter. In an interview with child

protective services social worker Kelly Dickinson, N

disclosed information about the 2008 Hartford incident

only, and nothing about the 2005 New York incident.6

Child protective services subsequently referred the case

to the department because the only allegations were

those arising from the Hartford incident.

Months before the beginning of trial, the defendant

received from the state a department form, called Form

737 (form), which the department had sent to the Hartford Police Department to inform the police that the

department was conducting an investigation into the

July, 2008 Hartford incident.7 The form states, inter alia,

that ‘‘there is a companion investigation in the [s]tate

of New York as a result of current allegations,’’ and

also that N’s mother ‘‘reported [to the department] that

[N] also reported that when [the defendant] was residing in New York he used to touch her as well.’’ The

form also included the name and telephone number of

the child protective services social worker assigned

to investigate the allegations. The defendant’s counsel

stated that the form was ‘‘original discovery [material]

going back to pretrial’’ and that he had possessed this

prior to the date of trial. There is no evidence that the

defendant tried to contact the child protective services

social worker or requested any records regarding

that investigation.8

On the morning of the start of trial, the defendant

received a copy of a the department’s investigation protocol (protocol). The protocol contained case notes

from a department social worker and included comments made by Dickinson, who had referred the case to

the department. According to the case notes, Dickinson

reported to the department that N ‘‘did not make any

disclosures of any incidents taking place in the Orange

County [New York] jurisdiction. [N] did not make any

disclosures about anything happening in the Bronx area

either; she did not want to talk about it. [Dickinson]

reported that [N stated that] nothing happened in

Orange [County], and that it happened in Connecticut,

however, she was not clear. [Dickinson] reported that

[N] stated that she was too young when she visited

in the Bronx and she did not want to talk about it.
[Dickinson] reported that ‘they,’ meaning her and the

police in New York, did not want to press her for [an]

interview due to the fact that they did not know [how]

many more people she would have to talk to.’’

Upon receiving the protocol, the defendant objected

to proceeding with trial and requested a continuance

in order to procure additional investigation materials

from New York. The defendant’s counsel stated: ‘‘There

is an indication—it’s a hearsay indication because it’s

the author’s report about what he or she was told by

what appeared to be state of New York authorities with

[child protective services] who are investigating this

claim because of [N] and her mother living in New York

and that’s where the disclosure was made. And that

indicates that [N] did make some disclosure to the New

York authorities about the incident that we’re presently

on trial for. . . . [I]n terms of the uncharged misconduct, [N] specifically declined to discuss that issue with

the New York authorities. I do not know the reason for

that. There’s some suggestion by the [department social

worker] being told that—something about [N] thought

she was too young or didn’t remember.’’9

Additionally, the defendant’s counsel argued:

‘‘[M]aybe a more practical nuts and bolts view of this.

[N] testifies. On cross, I ask her: Is it true that you went

in and talked to child protective services on the date

certain? And she says no or she says, I don’t remember,

I’m not in a position at the present time to follow that

up. I know it seems to have happened, but I know

essentially by hearsay. Any of the myriad of things that

we have discussed that could be described as exculpatory, I’m in the same position. I’m not properly prepared

at this time, having only received the report today, to

properly represent [the defendant].’’ The state asked

the court to proceed with trial.

In denying the defendant’s requested continuance,

the court noted, inter alia, that the case had been pending since June, 2011, and, in terms of the defendant’s

access to child protective services and department

reports, that the state’s attorney’s office had an open file

policy, and that the defendant did not file any discovery

motions. The court also noted that, although there had

been some difficulty communicating with child protective services, the departmentrecords, which were available to the defendant at least months before the start

of trial, mentioned the investigation done by child protective services in New York.10 Furthermore, the court

noted that N was subject to cross-examination.

On appeal,the defendant argues that the court abused

its discretion in denying his continuance request

because the investigation records from child protective

services likely contained material essential to his

defense. The state argues that the court’s denial of the

defendant’s continuance request was not an abuse of

discretion. We agree with the state.
The standard of review and applicable law relevant

to this claim are well settled. ‘‘The determination of

whether to grant a request for a continuance is within

the discretion of the trial court, and will not be disturbed

on appeal absent an abuse of discretion. . . . Every

reasonable presumption will be made in favor of the

trial court’s proper exercise of discretion. . . . There

is no mechanical testfor determining whetherthe denial

of a continuance constitutes an abuse of discretion. A

reviewing court must consider the particular circumstances of each case, paying special attention to the

reasons presented to the trial court at the time the

request was denied.’’ (Citations omitted; internal quotation marks omitted.) State v. Hamilton, 30 Conn. App.

68, 82–83, 618 A.2d 1372 (1993), aff’d, 228 Conn. 234,

636 A.2d 760 (1994).

A court has the discretion to consider many factors

when considering a request for a continuance, including

‘‘the timeliness of the request for continuance; the likely

length of the delay . . . the impact of delay on the

litigants, witnesses, opposing counsel and the court;

the perceived legitimacy of the reasons proffered in

support of the request; [and] the defendant’s personal

responsibility for the timing of the request . . . . [A]n

appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion

to a consideration of those factors, on the record, that

were presented to the trial court, or of which that court

was aware, at the time of its ruling on the motion for

a continuance.’’ (Citations omitted; internal quotation

marks omitted.) State v. Davis, 135 Conn. App. 385,

393–94, 42 A.3d 446, cert. denied, 305 Conn. 916, 46

A.3d 171 (2012).

After considering the relevant information before the

trial court, we conclude that the court did not abuse

its discretion when it denied the defendant’s motion

for a continuance.

First, the court properly considered the timeliness of

the defendant’s continuance request. This case had

been pending for more than three years, and the defendant requested the continuance on the morning of trial,

right before the court began hearing evidence. In considering the timeliness of the request, it is important

to note that ‘‘[w]e are especially hesitant to find an

abuse of discretion where the court has denied a motion

for continuance made on the day of the trial.’’ (Internal

quotation marks omitted.) Id., 394.

Second, the court properly considered whether a continuance would have negatively impacted opposing

counsel, the witnesses, and the court. The request was

made just before N, who lived out of state, took the

stand to testify. In addition to N, there were three other

witnesses prepared to testify that day, including N’s

mother, who also lived out of state. Additionally, the
parties and the court had invested significant time in

this three year old case, and the state’s attorney, defendant’s counsel, and the court had already spent three

days prior to trial selecting the jury, who was prepared

to begin hearing evidence that day.

Third, as to the legitimacy of the reasons proffered

in support of the defendant’s request, the defendant

argued that the continuance was necessary in order

to obtain additional information about the New York

investigation that could be exculpatory, and that may

cast doubt on the veracity of N’s testimony at trial. The

defendant was merely speculating that any additional

information from this investigation would benefit his

defense. We have held that it is proper for a court to

deny a continuance request, sought in order to obtain

discovery evidence, where the benefit of such evidence

is speculative. See id., 395.

In addition, the court properly considered the defendant’s personal responsibility for the timing of the

request. The defendant’s counsel argued that, without

more time to obtain further information about the New

York investigation, he would not be able to properly

represent the defendant. The defendant, however, could

have obtained further information well before the start

of trial, eliminating any need for the requested continuance. The court noted that the defendant had access

to the state’s file through the open file policy of the

state’s attorney’s office, and that the defendant could

have filed discovery motions to obtain this information

well before trial. Additionally, the defendant had in his

possession months before trial the department form

that referenced the New York investigation and that

provided the name of and contact information for the

child protective services social worker assigned to the

investigation. Therefore, the defendant was on notice

well in advance of trial that there had been a New York

investigation, and he could have investigated further to

procure any other information or documents to assist

him in his defense.

Lastly, the defendant did not specify in his request

how long of a continuance he was seeking. Therefore,

the court had no indication as to the likely length of

delay a continuance would cause. We have held that

‘‘[i]t is . . . within the trial court’s discretion to deny

a continuance when the length of the delay sought is

unspecified.’’ State v. Godbolt, 161 Conn. App. 367, 377,

127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134

A.3d 621 (2016).

Accordingly, we conclude that the trial court did not

abuse its discretion in refusing to grant the defendant’s

continuance request.

II

The defendant’s second claim is that the trial court

improperly denied his motion for a judgment of acquit-
tal because the evidence was insufficient to support

his conviction of sexual assault in the first degree as

charged in the amended information.11 Specifically, the

defendant contends that the state presented no evidence that he used force to compel N to engage in

sexual intercourse, and, therefore, the trial court erred

in denying his motion for a judgment of acquittal. The

state argues that the court properly denied the defendant’s motion because the jury reasonably could have

concluded that the defendant had used force to compel

the sexual intercourse. We agree with the defendant,

and, accordingly, reverse the defendant’s conviction of

sexual assault in the first degree.

We first set forth our standard of review and the

applicable statutes relevant to this claim. ‘‘The due process clause of the fourteenth amendment protects the

accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.’’(Internal quotation

marks omitted.) State v. Johnson, 165 Conn. App. 255,

288, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d

933 (2016). ‘‘A defendant who asserts an insufficiency of

the evidence claim bears an arduous burden. . . . In

reviewing a sufficiency of the evidence claim, 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 [jury]

reasonably could have concluded that the cumulative

force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own

judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . 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 support’s the jury’s

verdict of guilty. . . . If, however, the evidence is insufficient to meet the burden of proof of guilt beyond a

reasonable doubt, bearing in mind that the state has

the burden of establishing by such proof every essential

element of the crime charged, the verdict must be set

aside.’’ (Citations omitted; internal quotation marks

omitted.) State v. Smith, 148 Conn. App. 684, 695, 86

A.3d 498 (2014), aff’d, 317 Conn. 338, 118 A.3d 49 (2015).

Section 53a-70 (a) (1) provides in relevant part: ‘‘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-65 (7) provides in relevant part:

‘‘Use of force means . . . (B) use of actual physical

force or violence or superior physical strength against
the victim.’’(Internal quotation marks omitted.) We also

note that ‘‘[p]enal statutes are to be construed strictly

. . . and not extended by implication to create liability

that the legislature did not purport to create. . . .

Words and phrases, however, are to be understood

according to the commonly approved usage of the language; General Statutes § 1-1 (a); and words used in a

criminal statute should not be accorded the narrowest

technical meaning in disregard of their context and in

frustration of the obvious legislative intent. . . . We

have previously acknowledged that the statutory definition of ‘use of force’ is clear and that ‘it contains no

words not commonly used which might not be understood in their ordinary meaning.’ ’’ (Citations omitted.)

State v. Hufford, 205Conn. 386, 392, 533A.2d 866 (1987).

The record reveals the following additional facts and

procedural history relevant to this claim. Count one of

the original information, dated July 2, 2014, charged

the defendant with sexual assault in the first degree

in violation of § 53a-70 (a) (1) and alleged that ‘‘the

defendant compelled another person to engage in sexual intercourse by the use of force against such other

person or by the threat of use of force against said

person which reasonably caused such person to fear

physical injury.’’ (Emphasis added.)

After the close of the state’s case, the defendant

moved for a judgment of acquittal on all three counts.

Thereafter, the court asked the state if, in count one,

it was still alleging that the defendant compelled the

sexual intercourse by the use of force or by the threat

of use of force, to which the state replied that it was

pursuing only the use of force element.12 The court

denied the defendant’s motion for a judgment of acquittal. Thereafter, on July 16, 2014, the state filed an

amended information to reflect the change in count

one,13 which still charged the defendant with sexual

assault in the first degree in violation of § 53a-70 (a)

(1), but alleged: ‘‘[T]he defendant compelled another

person to engage in sexual intercourse by the use of

force against such other person.’’ (Emphasis added.)

The defendant rested without putting on any evidence

and renewed his motion for judgment of acquittal as

to count one only, sexual assault in the first degree. The

court denied the defendant’s motion. The jury found the

defendant guilty on all three counts.

At trial, N’s testimony was the only direct evidence

regarding the alleged events that occurred during the

Hartford incident in July, 2008. When questioned by the

prosecutor, N testified as follows:

‘‘Q. Now, in July of 2008, while you were visiting your

father, the defendant in this case, what happened?

‘‘A. One early morning, I woke up and the defendant

was in his room and I woke up to use the bathroom.

And he called me in his room to watch cartoons. . . .
‘‘Q. So you walk into his bedroom, and what happens next?

‘‘A. He asked to me to come lay down with him.

‘‘Q. What do you do when he says that?

‘‘A. I go and lay down with my father.

‘‘Q. And then what happens?

‘‘A. He attempts to turn on the TV. . . .

‘‘Q. Was he successful?

‘‘A. No. . . .

‘‘Q. Then what happens?

‘‘A. He asked me to move a little closer to him and

lie on his chest.

‘‘Q. What do you do?

‘‘A. I move closer and lie on his chest.

‘‘Q. Then what happens?

‘‘A. He began to rub my back and then eventually—

I’m sorry. And then eventually my butt, buttocks.

‘‘Q. Now you said he was rubbing your back.

‘‘A. Uh-huh.

‘‘Q. He was rubbing your buttocks. Over the clothes

or under the clothes?

‘‘A. Over.

‘‘Q. So over the clothes. Then what happens?

‘‘A. He put his hand inside my pants.

‘‘Q. Okay. Does he—so he puts your—his hands in

your pants?

‘‘A. Yes.

‘‘Q. Okay. Are you wearing underwear?

‘‘A. Yes.

‘‘Q. All right. Is he touching skin?

‘‘A. Yes.

‘‘Q. Then what occurs?

‘‘A. He used his finger to penetrate my vagina.

‘‘Q. Okay. He had tried to turn the TV on. Did [he]

put the remote control down at this point?

‘‘A. Yes.

‘‘Q. So he had both hands free?

‘‘A. Yes.

‘‘Q. Was he doing anything else at this time? . . .

‘‘A. He had his hand in his boxer shorts and he was

touching himself.
‘‘Q. What do you mean touching himself? Touching

himself where?

‘‘A. He was touching his penis. . . .

‘‘Q. Okay. What happens? You said he penetrated

your vagina with his finger?

‘‘A. Yes.

‘‘Q. What happens next?

‘‘A. I just—I moved away from him.

‘‘Q. And you moved away from him. Were you still

on the bed?

‘‘A. No. I got up and walked away. . . .

‘‘Q. . . . So you left the room?

‘‘A. Yes.

‘‘Q. And then where did you go?

‘‘A. I went back to the room—the bedroom I was

staying in down the hall.

‘‘Q. And then what did you do?

‘‘A. I just sat on my bed, well, the bed I was sleeping

in, and turned on the TV.’’

On the basis of this testimony, the defendant appeals

from the denial of his motion for judgment of acquittal

as to count one, sexual assault in the first degree. The

state was required to prove beyond a reasonable doubt

that the defendant used force to compel N to engage

in the sexual intercourse. The defendant argues that

the state did not meet its burden. We agree.

Our Supreme Court has held that ‘‘use of force,’’ as

defined by § 53a-65 (7), does not extend to ‘‘mere touching.’’ State v. Hufford, supra, 205 Conn. 393. In Hufford,

the defendant, a paramedic, was convicted of sexual

assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A),14 on the basis of allegations

that he opened the victim’s blouse and unzipped her

pants to fondle her breasts and massage her vagina with

his fingers while she was legally rendered immobile and

being transported to the hospital. Id., 390. The defendant challenged his conviction and argued that ‘‘the

state presented no evidence that [he] used force to

compel the alleged sexual contact.’’ Id., 391. In

determining that the defendant’s actions did not constitute force, the court stated that there was only ‘‘mere

touching’’ and further stated that ‘‘[n]either violence,

nor physical coercion, nor use of superior strength was

necessary to assault this complainant sexually,’’ and

that ‘‘[t]he evidence adduced at the trial of this case

demonstrated that the defendant had no need to exert

force to effect the sexual contact.’’ Id., 393.

The state argues that Hufford was limited to its

unique facts by State v. Mahon, 97 Conn. App. 503, 905
A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958

(2006), and, therefore, is inapplicable to the present

case. This court, in Mahon, stated: ‘‘Hufford did not

create a per se rule that the act of removing a victim’s

clothing to engage in sexual intercourse always is insufficient evidence of force. Rather, Hufford simply stands

forthe proposition thatif a complainantis already under

medical restraint, the act of unzipping her pants and

opening her blouse requires no force.’’ Id., 511. Although

we agree with the state that the factual scenario in the

present case is distinguishable from that in Hufford,

the court’s holding in Hufford still controls: mere touching, in the absence of violence,15 physical coercion, or

use of superior physical strength, is insufficient to prove

thatthe defendant used force to compelthe sexual intercourse.

In the present case, like in Hufford, the defendant

had no need to exert force to compel the sexual intercourse. N testified that she complied with the defendant’s requests that she come into his room, lie on the

bed, move closer to him, and lie on his chest. She testified further that she stopped the intercourse by moving

away from him, getting off the bed, and leaving the

room. There was no testimony that the defendant

exerted force to make her come into his room and lie

on the bed with him, or to try to keep her on the bed.

It was not necessary, therefore, that the defendant use

physical coercion or his superior physical strength in

order to sexually assault N. We do not highlight these

facts to focus on the adequacy of N’s resistance, as we

recognize that is not the focus in a sexual assault case.

See State v. Kulmac, 230 Conn. 43, 75, 644 A.2d 887

(1994). This evidence, however, illustrates the defendant’s lack of need to exert force in order to compel

the sexual intercourse.

The state further argues that our decision in State v.

Mahon, supra, 97 Conn. App. 503, controls the outcome

of the present case. We disagree. The defendant in

Mahon was convicted of sexual assault in the first

degree, sexual assault in the first degree as an accessory, and conspiracy to commit sexual assault in the

first degree. Id., 508. In that case, the defendant and

another man, Oraine Duncan, drove the victim to a field

and sexually assaulted her while she was in the back

seat of a two door car. Id., 506–507. The victim in Mahon

protested and told the defendants that she ‘‘ ‘didn’t want

to do this because she was saving [herself] for [her]

boyfriend.’ ’’ Id., 507. While Duncan was in the back

seat with the victim, he tried unsuccessfully to pull

down the victim’s underwear. Id., 507. The defendant

reached into the back seat and pulled down the victim’s

underwear past her knees, allowing Duncan to have

vaginal sexual intercourse with the victim. Id. The

defendant then also had vaginal sexual intercourse with

the victim. Id. The defendant appealed from the court’s

denial of his motion for a judgment of acquittal, and
argued, inter alia, that there was no evidence that he

used force, or threatened to use force, to compel the

victim to engage in sexual intercourse. Id., 509.

In affirming his convictions, the court in Mahon

opined: ‘‘[T]he jury reasonably could have concluded

that the defendant’s act of removing her underpants,

to assist his companion in sexually assaulting her,

constituted force. Thus, as this claim relates to the

defendant’s conviction of conspiracy to commit sexual

assault in the first degree and sexual assault in the

first degree as an accessory, the jury reasonably could

have found that his forcible removal of [the victim’s]

underpants while she was under assault from Duncan

met the force requirement of the statute.’’ (Emphasis

added.) Id., 511–12. In contrast, though, the court further opined: ‘‘The jury also reasonably could have

inferred that the defendant’s act of forcibly removing

[the victim’s] underpants, to assist Duncan in sexually

assaulting [her], constituted an implied threat that he

would use force to compel her to engage in sexual

intercourse with him and that such implied threat was

intended to and did in fact compel [the victim] to submit

to sexual intercourse with the defendant.’’ (Emphasis

added.) Id., 513–14. This distinction by the court

between when the defendant’s act of pulling down the

victim’s underwear constituted actual force and when

it constituted the threat of force is instructive of our

analysis in the present case.

The state argues in the present case that, under

Mahon, ‘‘the jury reasonably could have concluded that

the defendant used his superior strength to move the

complainant’s underwear to allow the compelled intercourse to occur.’’ We find the state’s reliance on Mahon

to be misplaced for two reasons.

First, the action contemplated in Mahon was the

defendant’s forcible removal of the victim’s underpants.

There is no evidence in the present case that the defendant forcibly removed N’s underwear. N testified that

the defendant ‘‘put his hand inside [her] pants’’ and

then ‘‘used his finger to penetrate [her] vagina.’’ The

state is asking us to extend the holding in Mahon to

mean that any incidental underwear movement that

may have occurred when the defendant put his hand

inside N’s underwear constitutes force. In our view,

however, there is a significant difference between forcibly removing a victim’s underwear and the incidental

underwear movement that is required to commit the

penetration of the victim’s vagina. Therefore, we decline

to extend Mahon to include the facts of this case.

Second, our decision in Mahon distinguished

between when the defendant’s forcible removal of the

victim’s underwear constituted actual use of force and

when it constituted a threat to use force. See id., 511–14.

Under Mahon, a defendant’s action of forcibly removing

the victim’s underwear can be used to prove that the
defendant used actual force to compel the sexual intercourse, for purposes of a charge of sexual assault in

the first degree as an accessory or as a conspirator. Id.,

511–12. The same action by a defendant, though, can

be used to prove that the defendant threatened to use

force to compel the sexual intercourse, for purposes

of a charge of sexual assault in the first degree as a

principal. Id., 513–14. The defendant in the present case

was charged with sexual assault in the first degree as

a principal. Therefore, even if we were to extend the

holding in Mahon to include the facts of this case, any

incidental underwear movement required in order for

the defendant to penetrate the victim’s vagina could

only be used to show that the defendant threatened to

use force against N to compel the sexual intercourse.

The state explicitly declined to charge the defendant

as such. For these reasons, we do not agree with the

state that Mahon controls our analysis here.

The state further relies on State v. Ferdinand R., 132

Conn. App. 594, 33 A.3d 793 (2011), aff’d, 310 Conn.

686, 82 A.3d 599 (2013), for the proposition that the

‘‘use of force’’ element of § 53a-70 (a) can be satisfied

by demonstrating those acts that are necessary to

accomplish the sexual assault, and nothing further. We

disagree with the state’s interpretation of Ferdinand R.

The defendant in Ferdinand R. was convicted of

sexual assault in a spousal relationship in violation of

General Statutes § 53a-70b (b).16 Id., 595. In arguing that

the evidence was insufficient to sustain his conviction,

the defendant encouraged the court to ‘‘interpret the

statute to require proof beyond a reasonable doubt that

he . . . used force greater than necessary to separate

the victim’s legs . . . .’’ Id., 599–600. In declining to do

so, this court opined: ‘‘There is no qualifying language

that says thatthe force must be greaterthan is necessary

to separate the victim’s legs.’’ Id., 602. We do not read

this statement, as the state appears to, as creating a

per se rule that force used to separate the victim’s legs

is enough to satisfy the ‘‘use of force’’ element. The

court merely refused to find that the plain language

of the statute necessitated such an interpretation. Id.,

601–602. In fact, the court itself seemingly did not interpret its own statement as a per se rule that the force

necessary to separate the victim’s legs was sufficient

to prove ‘‘use of force.’’ In affirming the defendant’s

conviction, the court considered the totality of the force

used by the defendant, not just that which was used to

separate the victim’s legs. Id., 605 (‘‘[t]here was evidence before the jury that the defendant picked up the

victim against her will, carried her into the bedroom

and had sexual intercourse with her even though she

repeatedly indicated that she did not want to engage

in such activity’’).

Ourinterpretation of Ferdinand R. aligns with earlier

jurisprudence on this question. Our Supreme Court, in
State v. Petitpas, 299 Conn. 99, 6 A.3d 1159 (2010),

considered similar actions by a defendant convicted of

sexual assault in the first degree. The jury in Petitpas

had before it evidence that the defendant spread the

victim’s legs apart in order to engage in oral sex on the

victim and continued to pull her legs open when she

tried to close them before lying on top of the victim and

engaging in vaginal intercourse with her. Id., 105–106. In

affirming the conviction, the court opined: ‘‘[T]he jury

reasonably could have concluded that the cumulative

force of the evidence established guilt beyond a reasonable doubt . . . .’’17 (Emphasis added; internal quotation marks omitted.) Id., 106.

In the present case, the jury had no evidence before

it that the defendant used any force whatsoeverto separate N’s legs in order to effectuate the sexual intercourse. Additionally, even if we were to infer that the

defendant did use the minimum force necessary to separate N’s legs, under our interpretation of Ferdinand R.

and Petitpas, there was no additional or cumulative use

of force sufficient to bring the facts of the present case

within those holdings. Unlike Ferdinand R. and Petitpas, there is no evidence that the defendant here

engaged in other forceful behavior, such as picking the

victim up and carrying her, pulling the victim’s legs

open when she tried to shut them, or lying on top of

her, in order to compel the sexual intercourse. In fact,

N testified that the defendant only ever used one hand

to touch her, and the other he used to masturbate.

Therefore, we do not agree with the state that Ferdinand R. controls our analysis here.

The state further argues that, on the basis of our

Supreme Court’s ruling in State v. DePastino, 228 Conn.

552, 638 A.2d 578 (1994), ‘‘the jury reasonably could

have concluded that the child complainant did not want

to participate in the sexual intercourse imposed on her

by her physically strongerfather, and that the defendant

used his superior strength to compel her to engage in

sexual intercourse.’’ We do not agree. The defendant

in DePastino was convicted of sexual assault in the

first degree on the basis of allegations that he inserted

his penis into his eighteen month old daughter’s vagina.

State v. DePastino, supra, 569–70. In finding that the

defendant’s actions constituted use of superior physical

strength, and, therefore, use of force, the court stated:

‘‘Considering the relative size difference between the

defendant and his eighteen month old daughter, the

injuries to her vaginal area, the fact that she was crying

during the assault and the testimony of the physician

that the assault would have been very painful to the

child, the jury from the evidence reasonably could have

concluded beyond a reasonable doubt that the defendant compelled the younger child to engage in sexual

intercourse by using superior physical strength.’’ Id.,

571.
In the present case, unlike in DePastino, the jury had

before it no evidence that N suffered any injuries to

her vaginal area or that she was crying or experienced

pain during the assault, and there was no testimony

from a medical expert that the digital penetration that

occurred here would have been painfulfor N. Therefore,

we do not agree that the court’s decision in DePastino

necessitates a finding here that the defendant used

superior physical strength against N.

Lastly, the state argues that the defendant’s use of

force to compel the sexual intercourse can be proven

by the fact that the defendant, an adult male, was

stronger than N, a ten year old girl, and that N was

afraid of him.18 We do not agree. In State v. Mahon,

supra, 97 Conn. App. 512, this court stated: ‘‘[W]e have

consistently held that one also may be guilty of sexual

assault in the first degree if one uses one’s physical

size or strength to threaten another to submit to sexual

intercourse . . . .’’19 (Emphasis added.) In Mahon, the

victim testified that ‘‘she was afraid to resist the defendant’s . . . sexual advances because she knew that her

resistance . . . would be futile.’’ Id., 513. This court

held, in affirming the defendant’s conviction, that the

defendant’s actions that led to the victim’s fear of

resisting his advances constituted an implied threat to

use force. Id. The court did not go so far as to say that

the victim’s fear of the defendant constituted the use

of actual force against the victim. Therefore, N’s testimony at trial that she was afraid of the defendant could

have been used to prove only that the defendant threatened to use force against her in order to compel her

to engage in sexual intercourse. The state, however,

explicitly declined to charge the defendant in this

manner.

A review of additional jurisprudence on this question

supports our conclusion that the defendant’s actions

did not constitute use of actual force to compel N to

engage in sexual intercourse. In State v. Gagnon, 18

Conn. App. 694, 699, 561 A.2d 129, cert. denied, 213

Conn. 805, 567 A.2d 835 (1989), we concluded that the

evidence admitted below was sufficient for the jury to

reasonably conclude that the defendant used physical

coercion, and, therefore, actual force, for purposes of

a conviction of sexual assault in the third degree.20 In

Gagnon, the defendant impersonated a police officer

to pull over the victim’s car, and, while she was pulled

over on the side of the road, the defendant reached

inside of her car and fondled her breasts. Id., 696. This

courtreasoned that it was significant that the defendant

had illegally rendered the victim immobile, unlike in

Hufford, and concluded that ‘‘the defendant’s conduct

constituted physical coercion. By using a subterfuge of

being a police officer, the defendant caused the victim

to stop her vehicle. Such coercion was intended to and

did in fact place the victim in a position wherein she
was compelled to submit to sexual contact by the defendant.’’ Id., 699.

In the present case, unlike in Gagnon, the jury had

before it no evidence that the defendant used impersonation or subterfuge, or that he illegally rendered N

immobile, in order to compel N to engage in sexual

intercourse. Therefore, the facts of the present case

were insufficient to establish beyond a reasonable

doubt that the defendant used physical coercion, and

therefore actual force, to compel N to engage in sexual intercourse.

On the basis of this review, we decline to extend the

ordinary meaning of ‘‘use of force’’ to fit this particular

case. It was the state’s burden to prove, beyond a reasonable doubt, every element of sexual assault in the

first degree as charged in the amended information,

including that the defendant used actual force in compelling N to engage in sexual intercourse. Even when

viewed in the light most favorable to the state, the

record discloses no evidence upon which the jury could

reasonably have concluded as such. Accordingly, we

hold that the state’s evidence was insufficient to convict

the defendant of sexual assault in the first degree in

violation of § 53a-71 (a) (1), and, therefore, the trial

court improperly denied the defendant’s motion for a

judgment of acquittal.

The judgment is reversed with respect to the defendant’s conviction of sexual assault in the first degree

and the case is remanded to the trial court with direction

to render judgment of acquittal on that charge only and

to resentence the defendant on the remaining charges.

The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

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

victims of sexual assault 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.

1 General Statutes § 53-21 (a) (2) provides in relevant part: ‘‘Any person

who . . . has contact with the intimate parts, as defined in section 53a-65,

of a child under the age of sixteen years or subjects a child under sixteen

years of age to contact with the intimate parts of such person, in a sexual

and indecent manner likely to impair the health or morals of such child . . .

shall be guilty of [risk of injury to, or impairing the morals of, a child] . . . .’’

2 General Statutes § 53-21 (a) (1) provides in relevant part: ‘‘Any person

who . . . wilfully or unlawfully causes or permits any child under the age

of sixteen years to be placed in such a situation that the life or limb of such

child is endangered, the health of such child is likely to be injured or the

morals of such child are likely to be impaired, or does any act likely to

impair the health and morals of any such child . . . shall be guilty of [risk

of injury to, or impairing the morals of, a child] . . . .’’

3

In accordance with General Statutes § 54-86e, the minor victim in this

case will be referred to as N.

4 Because N was ten years old at the time of the alleged offense, the state

could have, but chose not to, charge the defendant with a violation of § 53a70 (a) (2), which provides in relevant part: ‘‘A person is guilty of sexual

assault in the first degree when such person . . . 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 . . . .’’

5 Due to N’s age at the time of the offense, the defendant’s sentence for

count two was enhanced pursuant to § 53-21 (a) (2) (B).
6 N testified at trial that she did not disclose the 2005 New York incident

in the interview with the child protective services social worker because

she ‘‘wasn’t ready to talk about it and the lady that interviewed [N] in New

York didn’t make [her] feel comfortable about talking about it.’’ On crossexamination, she also testified that she did not disclose the New York

incident to the interviewer because ‘‘the Hartford incident was the one [N]

remembered the most.’’

7

It is not clearfrom the record the precise date that the defendantreceived

this discovery. The defendant, however, does not dispute that his counsel

received the form long before trial, and agreed with the characterization of

the period as ‘‘months and months’’ at oral argument before this court.

8 Rather, the defendant argues the state should have conducted a further

investigation by contacting child protective services.

9

In addition to this argument, the defendant’s attorney argued that there

may be possible exculpatory material alluded to in the form or the protocol.

See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963).

Because the defendant did notraise this argument in his brief and specifically

stated at oral argument before this court that he was not pursuing a Brady

claim, we do not discuss this argument here.

10 We also note that the defendant could have accessed the department

records at any time as the parent under investigation. See General Statutes

§ 17a-28 (g) (1).

11 The defendant does not challenge the sufficiency of the evidence for

either of his two convictions for risk of injury to a child.

12 The entire colloquy is as follows:

‘‘The Court: All right. In terms of count one, the sexual assault in the first

degree, is the state still pursuing the alternative by the threat or use of

force, or is it one or the other? And this also has to go with the—in terms

of the jury instructions that I’m going to need to prepare.

‘‘[The Prosecutor]: Am I pursuing both?

‘‘The Court: So I guess, basically, is the state’s—right now, the information

alleges that the—was by the use of force against such other person or by

the threat of—

‘‘[The Prosecutor]: The state will, based on the testimony, we’ll just go

with use of force.

‘‘The Court: All right. So that’s the—so it’s basically in terms of the sex

assault in the first degree, the state’s alleging that the defendant compelled

another person to engage in sexual intercourse by the threat or the use?

‘‘[The Prosecutor]: By the use.

‘‘The Court: Okay. So the defendant compelled another person to engage

in sexual intercourse by the use of force against such other person, and the

court—the state’s not pursuing the threat of use of force allegation. Correct?

‘‘[The Prosecutor]: Correct.’’

13 Counts two and three did not change from the original information.

14 Because ‘‘ ‘use of force,’ ’’ as defined by § 53a-65 (7) (B), is an element

of both §§ 53a-70 (a) (1) and 53a-72a (a) (1) (A), the court’s analysis in

Hufford is instructive here.

15 The parties agree that the facts of the present case do not support a

finding that the defendant used violence in order to compel N to engage in

sexual intercourse. The state argues only that ‘‘the jury reasonably could

have concluded that the defendant used his superior physical strength or

actual physical force to compel [N] to engage in sexual intercourse.’’

16 Because ‘‘ ‘use of force,’ ’’ as defined by § 53a-65 (7) (B), is an element

of both §§ 53a-70 (a) (1) and 53a-70b (b), this court’s analysis in Ferdinand

R. is instructive here.

17 This court in State v. Ferdinand R., supra, 132 Conn. App. 603, cited

to Petitpas and stated in an explanatory parenthetical ‘‘defendant guilty of

sexual assault in first degree even though force used was no greater than

necessary to separate victim’s legs.’’ We question the court’s characterization

of the holding in Petitpas as it appears that the jury reasonably could have

considered more than just the defendant’s use of force to separate the

victim’s legs in convicting him of sexual assault in the first degree. State v.

Petitpas, supra, 299 Conn. 106.

18 N testified at trial that she saw the defendant ‘‘in rages in incidents

when he didn’t like what was going on, so he became violent.’’ When questioned further on cross-examination, however, she could not remember a

time when she saw him in a ‘‘violent rage.’’

19 It is worth noting, however, that in each of the cases that the court cited

in support of this proposition, the defendant was charged with compelling a

victim to engage in sexual assault by the use of force or by the threat of
use of force. See State v. Kulmac, supra, 230 Conn. 75; State v. Davis, 61

Conn. App. 621, 639, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31

(2001). As previously noted, the state, in the present case, declined to pursue

charging the defendant with ‘‘threat of use of force.’’

This court in Mahon also cited to State v. Chapman, 229 Conn. 529,

643 A.2d 1213 (1994). In Chapman, the information alleged only that the

defendant compelled the victim to engage in sexual intercourse by the use

of force. Id., 537. The court, however, instructed the jury that it could convict

the defendant of sexual assault in the first degree if itfound that he compelled

the sexual intercourse by the use of force or the threat of use of force. Id.

Our Supreme Court held that that was improper. Id.

20 The defendant in Gagnon was charged under § 53a-72a (a) (1) (A). State

v. Gagnon, supra, 18 Conn. App. 695. See footnote 14 of this opinion.