STATE v. RICHARD FOURTIN, SC 18523

Judicial District of Fairfield

 Criminal; Sexual Assault; Whether State Presented Sufficient Evidence that Disabled Complainant was Physically Helpless as Defined by General Statutes § 53a-65 (6). The defendant was convicted of attempted sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) and 53a-71 (3) and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (C) in connection with allegations that he sexually assaulted a twenty-five year old woman with significant disabilities.  She has cerebral palsy, mental retardation and hydrocephalus. Both crimes require the state to prove beyond a reasonable doubt that the alleged victim was "physically helpless" as defined by General Statutes § 53a-65 (6); that is, that the victim was "unconscious or for any other reason [was] physically unable to communicate unwillingness to an act."  The defendant appealed, claiming that his convictions should be overturned because the state had not met its burden of proving that the complainant was physically helpless.  The Appellate Court (118 Conn. App. 43) noted that, while the complainant's disabilities rendered her unable to communicate verbally, she could communicate by gesturing and vocalizing and through the use of a communication board, and that witnesses testified that she could indicate her displeasure by means of gestures, physical aggression - including biting, kicking and scratching - and by making screeching and groaning sounds.  The court concluded that, given the uncontradicted evidence presented at trial that the complainant could communicate using these nonverbal methods and the state's failure to show that she was unable to use such forms of communication at the time of the alleged assault, no reasonable jury could have concluded that she was physically helpless at the time of the assault.  The Appellate Court accordingly reversed the judgment and remanded with direction to render judgment of not guilty.  The Supreme Court granted the state's petition for certification to appeal and will consider whether the Appellate Court improperly substituted its judgment for that of the jury when it determined that the evidence was insufficient to prove that the complainant was physically helpless as defined by § 53a-65 (6).