STATE v. ARNOLD DEVALDA, SC 18278

Judicial District of Stamford-Norwalk at Stamford

 Criminal; Jury Instructions; Whether the Trial Court Improperly Failed to Instruct the Jury, in Accordance with State v. Salamon, that it Could not Find the Defendant Guilty of Kidnapping in the First Degree Unless it First Found that the Restraint used to Commit that Crime was not Merely Incidental to the Commission of the Crime of Sexual Assault in the First Degree.  The defendant was charged with sexual assault in the first degree and kidnapping in the first degree.  At trial, the state introduced the testimony of the complainant in an effort to establish that the defendant abducted her outside of a nightclub and drove her to another location where he sexually assaulted her.  During cross-examination, the defendant sought to attack the complainant's credibility by questioning her regarding the following statement, which she had posted on a social networking Internet site: "I do whatever it takes to get what I want or need on my own."  The trial court precluded the defendant from doing so, ruling that it was merely speculative to suggest that the statement somehow indicated that the complainant was willing to lie about the incident in question.  At the close of the evidence, the court instructed the jury on the charge of kidnapping in the first degree, stating that a person is guilty of such charge "when he abducts another person and he restrains the person abducted with intent to . . . abuse that person sexually. . . .  The term restrain means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his or her liberty by moving him [or her] from one place to another . . . without consent. . . .  [W]ithout consent means but is not limited to . . . any means whatsoever, including acquiescence of the victim."  After the jury found the defendant guilty as charged, he filed this appeal, arguing that the trial court improperly failed to instruct the jury, as required by State v. Salamon, 287 Conn. 509 (2008), that it could not find him guilty of kidnapping in the first degree unless it first found that the restraint used to commit such crime was not merely incidental to and necessary for the commission of the crime of sexual assault in the first degree.  He maintains that this instruction was necessary because the evidence failed to establish that he restrained the complainant at any time other than during the alleged sexual assault.  He further claims that the court's definition of the term "without consent" omitted the following italicized language in contravention of General Statutes § 53a-91: "'without consent' means, but is not limited to . . . any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person. . . ."  He also contends that the trial court violated his right to confrontation by prohibiting him from questioning the complainant regarding the statement that she had posted on the Internet.