State of Connecticut v. Anwar Shakir, Sr. (2011)

RULING ON MOTION FOR JUDGMENT OF ACQUITTAL

The defendant was charged by way of a long form information with the following crimes:  Sexual Assault in the first degree in violation of CGS § 53a–70(a)(2), and two counts of Risk of Injury to a Minor in violation of CGS § 53–21(a)(2) and (a)(1).   The jury convicted the defendant on all counts.   The defendant now moves the court for a motion for judgment of acquittal on all counts.   He alleges insufficiency of the evidence to support a finding of guilty beyond a reasonable doubt and that the two convictions for risk of injury should be merged, and an acquittal on one of the counts enter.   For the following reasons, the motion is denied.

The majority of the defendant's claim is that the evidence produced was insufficient to permit a finding of guilty beyond a reasonable doubt.   The standard of review for a claim of insufficient evidence is well established.   A two-part test is applied:  “ ‘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 ․ In evaluating evidence, the trier 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 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 jury's factual inferences that support a guilty verdict need only be reasonable ․

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all 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 ․ 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 ․ Indeed, direct evidence of the accused's state of mind is rarely available ․ Therefore, intent is often inferred from conduct ․ and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom ․ [A]ny such inference cannot be based on possibilities, surmise or conjecture ․ It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.'  (Internal quotation marks omitted.)”  State v. Mourning, 104 Conn.App. 262, 266–67 (2007), quoting State v. Aloi, 280 Conn. 824, 842–43 (2007).

The court will not conduct a lengthy review of the evidence produced at trial.   Suffice to say that, based upon the evidence presented to the jury, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant had committed the crimes with which he stands convicted.

The defendant also specifically claims that there is insufficient evidence presented on the element of penetration, on the count of sexual assault in the first degree.   The court disagrees.   The complainant testified that the defendant was “putting his private in [her] back hole”;  that she felt a feeling in her bottom when the defendant was moving back and forth on top of her as she lay face down on the bed, and that the “pushing” she felt in her “back hole” hurt.   The jury was well within its province to credit the testimony of the complainant in determining that the state had proven the element of penetration beyond a reasonable doubt.

The defendant also claims that his convictions for risk of injury to a minor, on different subsections, should be merged.   When a defendant is convicted of two offenses arising out of a single transaction and one offense is a lesser included offense of the other, the lesser offense is merged into the greater and only one sentence is imposed.  State v. Chicano, 216 Conn. 699, 706–07 (1990), cert. denied, 501 U.S. 1254 (1991).   A defendant can be charged with and convicted of separate crimes arising from the same actions as long as all the elements are proven.   According to the long form information, the state charged risk of injury for two separate acts:  the showing of the pornographic video in the presence of the complainant, and for the defendant's contact with the intimate parts of the complainant.   Each count charged a separate criminal act.   See, e.g., State v. Hayes, 20 Conn.App. 737, 754 (1990).   As such, these two offenses are not merged, as one is not a lesser included offense of the other.

For all the foregoing reasons, the court denies the defendant's motion for judgment of acquittal.

Maureen M. Keegan

Keegan, Maureen M., J.