PETERS, J.
After a trial that the court described as a credibility contest, the defendant was found guilty of having sexually assaulted the complainant in violation of General Statutes §§ 53a-70 (a)(1) and 53a-73a (a)(2). The defendant's appeal principally challenges the sufficiency of the evidence to establish that he forcibly engaged in sexual intercourse with the complainant. We affirm the judgment of the trial court.
In a two count substitute information dated November 22, 2010, the state charged the defendant, Marlon White, with sexual assault in the first degree in violation of § 53a-70 (a)(1)
The court reasonably could have found the following facts. At the time of the incident, the defendant and the complainant
On the morning of December 10, 2008, at the defendant's request, the complainant arrived at the reserve center earlier than usual, in order to participate in physical fitness training with the defendant. At the completion of this training, the complainant retrieved her shower bag from her office and went downstairs to the female locker room, where she proceeded to shower and dress in a uniform shirt and pants. The defendant then entered the female locker room, wearing only a towel around his waist. When the complainant tried to leave the locker room, the defendant waylaid her and told her that she was not going anywhere. The complainant unsuccessfully tried to free herself from his grasp and to persuade him to release her. He nonetheless briefly had sexual intercourse with the complainant, until she was able to pull away from him and leave the area.
After leaving the locker room, the complainant retreated to her office. A female janitor saw her crying, and when she asked what was wrong, the complainant told her that she was upset because someone she thought was her friend had "[done] something bad."
The defendant subsequently went to the complainant's office and attempted to engage in further sexual contact, but she pulled away and told him to leave. Later that morning, the defendant returned to the complainant's office and told her that he was sorry. The defendant asked the complainant to forgive him and tried to hug her. She again asked him to leave and he complied with her request.
That afternoon, the complainant told her supervisor that she had been sexually assaulted. That evening, she went to the emergency room at Waterbury Hospital, where hospital staff took a patient history from her and performed testing for a sexual assault kit. Results from these tests did not reveal any physical injuries. In a statement that she gave to a police officer at the hospital, the complainant identified the defendant as the person who had sexually assaulted her.
At trial, the defendant admitted to having had sexual intercourse with the complainant, but claimed that it had been consensual. Challenging the sufficiency of the evidence against him, he moved for a judgment of acquittal on both counts following the conclusion of the state's case, which was denied.
In his appeal to this court, the defendant raises two issues. He challenges (1) the sufficiency of the evidence to establish that the complainant did not consent to engage in intercourse with him and (2) the court's evidentiary rulings excluding testimony of prior sexual activity between the parties and the complainant's medical and personnel records.
The defendant's principal claim is that the state failed to present sufficient evidence to establish the necessary elements of sexual assault in the first and fourth degree because the complainant's testimony was not credible and, even viewing the evidence in the light most favorable to sustaining his conviction, the record does not establish the element of force. We are unpersuaded.
The standard of review for a claim of insufficient evidence to support a criminal
"[A]s 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 finding] of guilty.... Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... [Finally] in responding to a claim of evidentiary insufficiency ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier's finding of guilty]." (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-53, 976 A.2d 678 (2009).
The defendant maintains that there is insufficient evidence to sustain his conviction of sexual assault in the fourth degree pursuant to § 53a-73a (a)(2). To establish a violation of § 53a-73a (a)(2), the state was required to prove that the defendant "subject[ed] another person to sexual contact without such other person's consent...."
At trial, the complainant testified that the defendant took hold of her around the waist with both arms as she attempted to exit the female locker room, and that she threatened to tell her supervisor and told him to let her go. She testified that she unsuccessfully struggled to get away, but was physically unable to prevent the defendant from sexually assaulting her. The complainant's testimony was sufficient for the court reasonably to conclude that the complainant did not consent to having sexual contact with the defendant.
The defendant attacks the validity of the court's credibility assessment by pointing to the inconsistencies in the complainant's statements about the assault to the police, to her supervisor, to hospital staff and at trial.
It is well established that "[q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.
Viewing the evidence in the light most favorable to sustaining the court's finding of guilty, we are persuaded that the court reasonably could have found that the state had proved each required element of § 53a-73a (a)(2). We conclude, therefore, that the state presented sufficient evidence to support the defendant's conviction of sexual assault in the fourth degree.
The defendant also challenges the sufficiency of the state's evidence as to the element of force necessary to establish a violation of § 53a-70 (a)(1).
General Statutes § 53a-65 (7) states that the "`[u]se of force' means ... use of actual physical force or violence or superior physical strength against the [complainant]." The use of force is a question of fact for the fact finder. See State v. Coleman, 52 Conn.App. 466, 469, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999).
"[N]othing ... in our law, suggests that proof of physical violence is necessary to establish that the sexual intercourse or contact has been compelled by the use of force or a threat of the use of force.... Furthermore, we 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 and that such threat may be expressed or implied." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Jason B., 111 Conn.App. 359, 364, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).
In arguing that force was not established, the defendant relies on testimony that there were no buttons missing from the complainant's pants, that she kept her personal items in her hands and did not use them to stop the attack, that there were no rips in her clothing and that she displayed no physical injuries. In light of the defendant's concededly superior strength and size, however, the court was entitled to find credible the complainant's testimony that she had been overpowered and sexually assaulted even though she was not visibly injured.
The defendant next claims that the trial court abused its discretion when it (1) excluded the complainant's confidential medical and personnel records, and (2) prohibited the defendant from questioning the complainant about her prior sexual activity, pursuant to an exception to the rape shield statute.
The following additional facts are relevant to our consideration of the defendant's claims. Before trial, the state filed a motion in limine, seeking to exclude evidence of the complainant's prior sexual conduct. The defendant objected, stating that he intended to introduce the complainant's confidential records to corroborate his theory that her motive for making sexual assault allegations against the defendant was to obtain an honorable medical discharge and a disability pension from the military. The defendant also made an offer of proof at the hearing on the motion, asserting that he intended to offer evidence of an incident two years prior to the alleged sexual assault, in which the defendant and the complainant allegedly exposed themselves to each other.
The court ruled that the defendant was permitted to ask the complainant about this prior incident, but that he could not introduce extrinsic testimonial evidence for the purpose of contradicting the complainant, as it would be collateral to the issue of her credibility. Further, after reviewing the disputed medical records in camera, the court found nothing relevant to the complainant's alleged motive to fabricate complaints against the defendant and, therefore, denied his request to admit them. There was no ruling regarding the complainant's personnel records at this hearing, as the court had yet to receive them.
We first set forth the standard of review. "Upon review of a trial court's decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion.... The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Cecil J., 99 Conn.App. 274, 279, 913 A.2d 505 (2007), aff'd, 291 Conn. 813, 970 A.2d 710 (2009).
At trial, the court allowed the defendant to pursue limited cross-examination regarding the complainant's previous request for a medical discharge, despite excluding the records themselves. The defendant, however, maintains that the court abused its discretion when it excluded the complainant's medical records and personnel records at a pretrial hearing.
"On review, we must determine whether the trial court's decision constituted
We have reviewed the challenged medical records, and we conclude that the information contained therein would not shed light on the complainant's motive in this case. The court, therefore, was within its discretion to exclude the plaintiff's medical records, as they would not have disclosed material sufficiently probative of the defendant's theory of defense to justify breaching their confidentiality.
Furthermore, we decline to review the complainant's personnel records, as they were never reviewed in camera by the trial court.
If the defendant was concerned that his ability to cross-examine the complainant was compromised by this limitation, it would have been appropriate for him to seek a continuance until an in camera review of the records had been completed, as even the defendant's counsel conceded at oral argument that a continuance would likely have been granted in this case. Having failed to seek a reasonable continuance, the defendant cannot establish a violation of his right to effectively present a defense.
We conclude, therefore, that the court did not abuse its discretion when it denied the defendant's request to admit the complainant's confidential medical and personnel records into evidence.
Finally, the defendant claims that the court abused its discretion when it prohibited him from questioning the complainant about a prior incident in which the complainant allegedly exposed herself to the defendant and about prior conversations between the complainant and the defendant about sex. He maintains that the evidence was admissible under General Statutes § 54-86f as an exception to the rape shield statute.
"[T]he trial court [is] bound, in the exercise of its discretion, by our rape shield statute.... [Section] 54-86f, commonly referred to as the rape shield statute, was enacted to bar or limit the use of prior sexual conduct of an alleged [complainant] of sexual assault because it is such highly prejudicial material.... Our legislature has determined that, except in specific instances, and taking the defendant's constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the [complainant's] sexual privacy and shielding her from undue [harassment], encouraging reports of sexual assault, and enabling the [complainant] to testify in court with less fear of embarrassment.... Other policies promoted by the law include avoiding prejudice to the [complainant], jury confusion and waste of time on collateral matters." (Citations omitted; internal quotation marks omitted.) State v. Clifford P., 124 Conn.App. 176, 182-83, 3 A.3d 1052, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010).
Specifically, § 54-86f provides in relevant part: "[N]o evidence of the sexual conduct of the complainant may be admissible unless such evidence is ... (4) otherwise so relevant and material to a critical issue that excluding it would violate the defendant's constitutional rights." The defendant contends that the excluded testimony was material to establishing the lack of credibility of the complainant.
The proffered testimony regarding a prior incident, in which the complainant allegedly exposed herself to the defendant,
Further, as a collateral issue, this evidence was more prejudicial to the complainant than probative of her credibility. "[T]he rape shield statute ... was enacted specifically to bar or limit the use of prior sexual conduct of an alleged [complainant] of a sexual assault because it is such highly prejudicial material." (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 300, 907 A.2d 73 (2006). Section 4-3 of the Connecticut Code of Evidence also provides: "Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice ... or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." The court, therefore, properly excluded such testimony.
The defendant also maintains that the court improperly denied his request to make an offer of proof regarding the admissibility of prior sexually charged conversations between the parties under an exception to the rape shield statute.
The defendant contends that the line of questioning surrounding these conversations with the complainant was relevant to the complainant's credibility, because she previously had given testimony inconsistent with her statements on recross-examination by stating that the defendant's discussion of sexual topics offended her. The defendant, however, mischaracterizes the complainant's testimony. Contrary to his assertion, the complainant previously testified that she thought such conversations were appropriate.
The central issue in this case is whether the credible evidence provided by the state was sufficient to sustain the defendant's conviction. We conclude that the court properly excluded the complainant's medical and personnel records, and properly limited testimony about prior sexual activity and conversations between the parties. We further conclude that the evidence of record, as a whole, was sufficient to prove the required elements of § 53a-70 (a)(1) and § 53a-73a (a)(2) beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other judges concurred.
We agree with the state that even if the excluded lines of questioning were generally relevant to the defendant's theory of defense, the scope of cross-examination permitted by the trial court afforded the defendant an adequate opportunity to put before the court his theory that the complainant had fabricated her allegations and, therefore, did not violate the defendant's confrontation right.
On redirect, the state's examination of the complainant did not include the topic of the conversations between the parties, but rather concerned a comment made by the defendant to the complainant later in the afternoon on the day of the sexual assault. The question on recross-examination about the complainant's prior sexual relationships, therefore, was not within the scope of the redirect examination, and it was within the court's discretion to exclude it.