State v. Jackson

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STATE OF CONNECTICUT v. JALENN JACKSON
(AC 39522)
DiPentima, C. J., and Bright and Harper, Js.

Syllabus

Convicted of the crime of sexual assault in the first degree, the defendant
appealed to this court. The defendant was originally charged with, inter
alia, the crime of unlawful restraint in the first degree and found not
guilty of that charge by a jury. When the jury deadlocked on three
charges of sexual assault in the first degree, the state elected to retry
the defendant on those charges and the defendant waived his right to
a jury trial. Following a trial to the court, the court rendered a judgment
of guilty of one count of sexual assault in the first degree. On appeal,
the defendant claimed that the trial court improperly and in violation
of the collateral estoppel component of the double jeopardy clause of
the United States constitution admitted into evidence a portion of a
witness’ statement to the police, which concerned the defendant’s
alleged use of a sweater that was wrapped around the victim’s face to
restrain the victim during the sexual assault, that the jury in his first
trial necessarily had rejected when it found the defendant not guilty of
the unlawful restraint charge. The state claimed that the defendant’s
double jeopardy claim was not preserved and, thus, not reviewable.
Held that the admission of the evidence regarding the use of the sweater
did not violate the defendant’s fifth amendment guarantee against double
jeopardy: although the issue was not brought to the attention of the
trial court in the precise manner in which it was raised on appeal,
defense counsel’s repeated argument that the defendant had been found
not guilty of unlawful restraint and that any facts from the first trial
that were related to that charge should not be admitted to prove restraint
related to the sexual assault charges in the second trial sufficiently
apprised the court of the nature of the issue so as to preserve it for
appellate review; moreover, a finding of not guilty on the charge of
unlawful restraint and a finding that the witness made a credible state-
ment about the defendant’s use of the sweater were not mutually exclu-
sive findings, or in any way inconsistent, in that the jury reasonably
could have believed the witness’ statement regarding the sweater but
found that the statement did not establish or demonstrate that the
defendant had the intent to unlawfully restrain the victim, and the defen-
dant failed to demonstrate that the jury, in finding him not guilty of
unlawful restraint in the first trial, necessarily rejected the witness’
statement and necessarily concluded that the sweater was not used
during the sexual assault, as the witness did not tell the police that the
defendant used the sweater to restrict the victim’s movements with the
intent to interfere substantially with her liberty, but rather stated that
the defendant used the sweater for the purpose of quieting the victim’s
screams after the defendant already had been engaging in sexual inter-
course with her.
Argued April 11—officially released August 28, 2018

Procedural History

Information charging the defendant with three counts
of the crime of sexual assault in the first degree, brought
to the Superior Court in the judicial district of Danbury
and tried to the court, Russo, J.; judgment of guilty of
one count of sexual assault in the first degree, from
which the defendant appealed to this court. Affirmed.
Erica A. Barber, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky, III,
state’s attorney, and Colleen P. Zingaro, assistant
state’s attorney, for the appellee (state).
Opinion

BRIGHT, J. The defendant, Jalenn Jackson, appeals
from the judgment of conviction, rendered after a trial
to the court, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1).1
The defendant claims that the trial court improperly
and in violation of the collateral estoppel component
of the double jeopardy clause of the United States con-
stitution2 admitted into evidence a portion of a witness’
statement that the jury in his previous trial necessarily
had rejected when it found the defendant not guilty on
the charge of unlawful restraint. We affirm the judgment
of the trial court.
The defendant originally was charged, via long form
information dated March 10, 2015, with: three counts
of sexual assault in the first degree in violation of § 53a-
70 for digital, oral, and penile penetration of the victim
without her consent and with the use of force; one count
of sexual assault in the first degree as an accessory in
violation of General Statutes §§ 53a-8 and 53a-70; one
count of unlawful restraint in the first degree in viola-
tion of General Statutes § 53a-95, which was based on
the state’s theory that the defendant had restrained the
victim with a sweater during the act of penile-vaginal
intercourse; and one count of burglary in the third
degree in violation of General Statutes § 53a-103. Fol-
lowing a trial, the jury deadlocked on the three charges
of sexual assault in the first degree, and it found the
defendant not guilty of the remaining three charges.
The state elected to retry the defendant on the three
charges of sexual assault in the first degree. The defen-
dant waived his right to be tried by a jury and his case,
instead, was tried to the court, Russo, J.
The following facts, as set forth by the trial court
in its oral decision or as reasonably revealed by the
evidence in the record, inform our review. Beginning
in March, 2013, the victim,3 who was from New York,
began staying with her friend, A, in Danbury. On the
evening of April 25, 2013, the victim and A went to a
club in Danbury, where the victim became intoxicated.
When the club closed, the victim went to look for A,
but could not find her. She waited by the door to the
club and began to cry. The defendant, Dylan Kennedy
and two other men were riding in a vehicle in the area
of the club looking for women with whom they could
talk. The men saw the victim and parked alongside the
sidewalk near where she was standing. One of the men
began speaking to the victim. The victim told them that
she could not find A. Soon thereafter, the victim got into
the vehicle and went with the men with the intention
of finding A, who the men said had gone to a party.
The men drove the victim to the party, but by the time
they arrived at the purported location of the party on
Chestnut Street, the party had broken up. The other
two men drove away in the car, so the defendant, Ken-
nedy and the victim walked to the Harambee Center
(center), where the defendant and Kennedy sometimes
slept. The victim thought the men were being helpful,
and she was not concerned about her safety because
she thought they were gay. The building was dark when
they went inside. The men and the victim played basket-
ball for a while. The defendant was complimenting the
victim and ‘‘hitting on [her].’’ The three then went to a
room on the second floor of the center, where they sat
on two couches.
The defendant caressed the victim’s leg, unzipped
her pants and aggressively put his hands down her
pants and digitally penetrated her vagina. The victim
attempted to rebuff the defendant’s advances and told
him that she felt sick. Nevertheless, the defendant
removed the victim’s pants and performed oral sex on
her, pulling her legs open. Kennedy then approached
the defendant and the victim, and he began kissing the
victim. The defendant, while positioned face to face on
top of the victim, inserted his penis into her vagina.
The victim told the defendant ‘‘no, I don’t want to do
this, I don’t want to do this, I don’t want to do this, no,
I shouldn’t do this, I don’t want to do this.’’ She also
told him ‘‘it [is] hurting, please stop . . . .’’ The victim
then told the defendant she was going to ‘‘puke,’’ and
the defendant responded by telling the victim to turn
around so he could position himself behind her while
vaginally penetrating her. Although the victim complied,
she was crying and screaming for him to stop, to no
avail. She lost consciousness or awareness soon
thereafter.
Despite the victim’s testimony that she lost con-
sciousness, Kennedy stated to the police4 that the victim
continued to scream and cry when the defendant took
her from behind, and that, to help muffle the victim’s
screams and to try to keep her quiet, the defendant
then wrapped a sweater around her face and pulled
tightly, jerking her head back, as she was struggling
while the defendant continued to penetrate her. Ken-
nedy also told the police that he did not ‘‘want to throw
[the defendant] under the bus. . . . He’s my good
friend.’’ Nevertheless, he stated that the defendant ‘‘like,
you know, force[d] his way. . . . He pretty much made
[the victim] have sex with him. . . . [H]e got on top
of her and stuff, started kissing her, and she was . . .
saying no. . . . No. No. No. . . . [He] started kissing
her neck and stuff and then she was saying no, no, and
then he proceeded to take off her pants.’’ When the
police asked Kennedy about marks on the victim, he
told them that the defendant ‘‘gave her a hickey,’’ and
that ‘‘he was biting her.’’ Kennedy also conceded that
the victim was telling the defendant to stop because
it hurt.
In the morning, the victim awoke in the center, naked,
with the sweater still wrapped around her face. She
scrambled to find her clothes and got dressed, putting
the sweater over her clothes. She ran down the stairs
of the center and found her way to A’s apartment, where
she reported to A what had occurred. The victim went
to the hospital and reported that she had been sexually
assaulted. Thereafter, Kennedy and the defendant
were arrested.5
At the conclusion of his first trial, the jury had dead-
locked on the three charges of sexual assault in the
first degree, and it had found the defendant not guilty
of the remaining three charges. The state then elected
to retry the defendant on the three charges of sexual
assault in the first degree. Following a trial to the court,
the court, relying in significant part on the similarity it
found between this case and State v. Rothenberg, 195
Conn. 253, 487 A.2d 545 (1985), rendered a judgment
of conviction on one count of sexual assault in the first
degree based on the defendant’s use of force to compel
the victim to engage in penile-vaginal intercourse. The
court rendered a judgment of acquittal on the charges
of sexual assault in the first degree that were based on
the defendant’s digital and oral penetration of the vic-
tim. This appeal followed.
In his appellate brief, the defendant sets forth, as the
‘‘sole issue presented on appeal . . . whether the doc-
trine of collateral estoppel, as embodied in the fifth
amendment [to the United States constitution] guaran-
tee against double jeopardy, and as set forth in State
v. Aparo, 223 Conn. 384, [614 A.2d 401] (1992), [cert.
denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed.
2d 785 (1993)], barred the trial court from considering
and relying upon certain allegations of fact that the
state failed to establish in the first trial to find [the
defendant] guilty in the second trial, namely that the
defendant had restrained [the victim] with a sweater
during the alleged sexual assaults.’’ He claims: ‘‘When
a jury [found] the defendant [not guilty] of unlawful
restraint, but failed to reach a verdict on other counts,
and it is clear from the record that the jury had a reason-
able doubt about certain ultimate facts relating to the
[unlawful restraint] count, the doctrine of collateral
estoppel prohibits the trial court from considering and
relying on those facts to find the defendant guilty on
one of the hung counts in a subsequent trial.’’6 Addition-
ally, the defendant argues: ‘‘The trial court’s reliance
on the restraint evidence rejected by the defendant’s
jury in the first trial to find him guilty of sexual assault
in the second trial constitutes reversible legal error.’’7
The state argues that the defendant’s double jeopardy
claim is waived and unreviewable.8 It contends that
defense counsel never argued double jeopardy, collat-
eral estoppel, or the principles articulated in Aparo
before the trial court, and that counsel and the court
all considered the defendant’s motion as an objection
to certain testimony that was based on evidentiary prin-
ciples related to relevance and prejudice. Furthermore,
the state argues that it would amount to ambuscade to
consider this claim under the double jeopardy clause
when the trial court never had the opportunity to do
so. In the alternative, the state argues that, even if the
claim is reviewable, there was no double jeopardy viola-
tion in this case. We conclude that the defendant’s claim
is reviewable, and, after reviewing the merits of the
claim, we further conclude that there was no double
jeopardy violation in this case.
The following additional facts are relevant to our
consideration of the state’s waiver argument. In the
defendant’s first trial, the prosecutor, in relevant part,
argued that the defendant ‘‘used the sweater to . . .
restrain [the victim] and also sexually assault her [as]
. . . she was struggling with it, trying to get it off her
face, trying to escape from that situation . . . .’’ The
prosecutor asked the jury: ‘‘Was that restraining her?
. . . Did that create a substantial risk of injury to her
at that time? Did it restrain her movement?’’ To counter
this argument, during closing, defense counsel argued
in relevant part that the defendant had used the sweater
only ‘‘to keep [the victim] quiet, not to restrain her.’’
Ultimately, the jury found the defendant not guilty of
unlawful restraint. It deadlocked, however, on the forc-
ible sexual assault charges.
In the second trial, the defendant filed a motion in
limine objecting, inter alia, to the introduction of evi-
dence suggesting unlawful restraint on the ground that
the jury had found him not guilty of that charge, and
evidence thereof could confuse or prejudice the trier
of fact in the second trial. The state objected on the
ground that evidence of restraint was relevant to the
charges of sexual assault in the first degree and that
the defendant’s motion was overbroad. During oral
argument on the motion, defense counsel argued, in
relevant part, that any evidence that the defendant used
the sweater to unlawfully restrain the victim should be
excluded. The court asked defense counsel why this
would not be just a matter of relevance, and counsel
responded that it would depend on the questions asked.
The court stated that it would not be inclined to issue
a blanket order and that it would need to hear the
questions, as would defense counsel, before ruling on
the admissibility of the evidence. Defense counsel
responded: ‘‘That’s right.’’ After further discussion
between the court and the prosecutor, defense counsel
stated: ‘‘Your Honor, my main concern is the restraining
somebody. If the defendant had not been specifically
charged with unlawful restraint and found not guilty of
that charge . . . I might feel a little bit different about
evidence of restraining somebody during a sexual
assault, but he—that evidence . . . was presented, and
he was specifically found not guilty of unlawful
restraint, and I would have a strong objection . . . an
absolute objection to any evidence of restraint coming
in.’’ The prosecutor responded that the issue of restraint
was relevant to the sexual assault and to the force
used in committing the assault. The court asked defense
counsel if she had discussed with the prosecutor the
overbroadness and lack of specificity in the defendant’s
written motion, and counsel replied in the negative. The
court stated, ‘‘as presently written, I’ll deny the motion
in limine filed by the defendant . . . .’’ The court fur-
ther stated that it would use a relevancy test when the
defendant voiced an objection to questions regarding
restraint.
Then, during Kennedy’s testimony, the prosecutor
asked him what he had told the police regarding
whether the sweater had been used during the sexual
encounter, and defense counsel objected by arguing,
‘‘it goes directly to the issues I raised in my motion in
limine. . . . [It] [s]hows unlawful restraint, and he was
found not guilty.’’ The prosecutor responded that the
information went to the issue of force used in the sexual
assault. The court stated that the prosecutor was asking
what role the sweater played in the assault, and that
there already had been testimony regarding the
sweater.9 The following brief colloquy then immediately
took place:
‘‘[Defense Counsel]: About a . . . sweater being over
her face.
‘‘The Court: Yes, well, or in general.
‘‘[Defense Counsel]: That’s something different.
‘‘The Court: There’s been testimony on several levels,
even exhibits that were taken out of their bags . . . .
So—
‘‘[Defense Counsel]: Right.
‘‘The Court: —I’m going to allow the question if Mr.
Kennedy can answer it.’’ No further relevant objections
related to this issue were offered.
Although we acknowledge that this issue was not
brought to the attention of the trial court in the precise
manner in which it is raised on appeal, we conclude that
defense counsel’s repeated argument that the defendant
had been found not guilty of unlawful restraint and that
any facts from the first trial that were related to that
charge should not be admitted to prove restraint related
to the sexual assault charges in the defendant’s second
trial sufficiently apprised the trial court of the nature
of the issue so as to preserve the issue for appellate
review. Accordingly, we next consider the merits of the
defendant’s claim.
On appeal, the defendant contends that in his second
trial, ‘‘the court concluded that the restraint evidence
established the element of ‘forced sexual intercourse’
to find [the defendant] guilty of sexual assault.’’ He
argues that because the state’s theory at the first trial
was that the defendant used the sweater to commit the
act of unlawful restraint, ‘‘when it is clear from the
record and the jury’s verdict that [the jury] had a reason-
able doubt about the acquitted act of restraint, the doc-
trine of collateral estoppel prohibits the court from
considering and relying on the restraint evidence to
find him guilty [of forcible sexual assault] in the second
trial.’’ We are not persuaded by the defendant’s
argument.
In State v. Hope, 215 Conn. 570, 577 A.2d 1000 (1990),
cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed.
2d 1054 (1991), our Supreme Court discussed in some
detail the relationship between double jeopardy and
collateral estoppel. ‘‘In a criminal case, collateral estop-
pel is a protection included in the fifth amendment
guarantee against double jeopardy. Ashe v. Swenson,
397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).
‘ ‘‘Collateral estoppel’’ is an awkward phrase, but it
stands for an extremely important principle in our
adversary system of justice. It means simply that when
an issue of ultimate fact has once been determined by
a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.’
Id., 443. ‘Collateral estoppel applies in two ways: (1) it
may bar prosecution or argumentation of facts neces-
sarily established in a prior proceeding; or (2) it may
completely bar subsequent prosecution where one of
the facts necessarily determined in the former trial is
an essential element of the conviction the government
seeks. United States v. Griggs, 735 F.2d 1318 (11th Cir.
1984).’ United States v. DeMarco, 791 F.2d 833, 836
(11th Cir. 1986).
‘‘To establish whether collateral estoppel applies, the
court must determine what facts were necessarily deter-
mined in the first trial, and must then assess whether
the government is attempting to relitigate those facts
in the second proceeding. De La Rosa v. Lynaugh, 817
F.2d 259, 263 (5th Cir. 1987); United States v. Irvin,
787 F.2d 1506, 1515 (11th Cir. 1986). ‘A defendant who
argues that Ashe is applicable to his case carries the
burden of establishing that the issue he seeks to fore-
close from consideration in the second case was ‘‘neces-
sarily’’ resolved in his favor in the prior proceeding.
United States v. Seijo, 537 F.2d 694, 697 (2d Cir. 1976),
cert. denied, 429 U.S. 1043, 97 S. Ct. 745, 50 L. Ed. 2d
756 (1977).’ United States v. Castro, 629 F.2d 456, 465
(7th Cir. 1980). . . .
‘‘ ‘The federal decisions have made clear that the rule
of collateral estoppel in criminal cases is not to be
applied with the hypertechnical and archaic approach
of a 19th century pleading book, but with realism and
rationality. Where a previous judgment of acquittal was
based upon a general verdict, as is usually the case,
this approach requires a court to ‘‘examine the record
of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and con-
clude whether a rational jury could have grounded its
verdict upon an issue other than that which the defen-
dant seeks to foreclose from consideration.’’ The
inquiry ‘‘must be set in a practical frame and viewed
with an eye to all the circumstances of the proceedings.’’
Sealfon v. United States, 332 U.S. 575, 579 [68 S. Ct.
237, 98 L. Ed. 180 (1948)]. Any test more technically
restrictive would, of course, simply amount to a rejec-
tion of the rule of collateral estoppel in criminal pro-
ceedings, at least in every case where the first judgment
was based upon a general verdict of acquittal.’ Ashe v.
Swenson, supra, [397 U.S.] 444.
‘‘ ‘Moreover, in reviewing the earlier trial to determine
the jury’s basis for the acquittal, a court ‘‘should not
strain to dream up hypertechnical and unrealistic
grounds on which the previous verdict might conceiv-
ably have rested.’’ United States v. Jacobson, 547 F.2d
21, 23 (2d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.
Ct. 1581, 51 L. Ed. 2d 793 (1977). See also United States
v. Mespoulede, [597 F.2d 329, 333 (2d Cir. 1979)].
‘‘ ‘[U]nrealistic and artificial speculation about some
far-fetched theory upon which the jury might have
based its verdict of acquittal’ is foreclosed.’’ State v.
Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613 (1984),
quoting United States v. Sousley, 453 F. Supp. 754, 762
(W.D. Mo. 1978).’ Ferrell v. State, 318 Md. 235, 245–46,
567 A.2d 937 (1990); see United States v. Mespoulede,
supra. Limited ambiguity that exists in a jury’s verdict
should be ‘resolved, in accordance with the protections
of the Double Jeopardy Clause, in favor of the defen-
dant.’ United States v. Hans, 548 F. [Supp.] 1119, 1126
(S.D. Ohio 1982).’’ (Citation omitted.) State v. Hope,
supra, 215 Conn. 584–86; accord State v. Aparo, supra,
223 Conn. 389–90.
Stated more directly: ‘‘Collateral estoppel means sim-
ply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in
any future lawsuit. . . . In a criminal context, the doc-
trine prohibits the government from forcing a defendant
to defend against charges or allegations which he over-
came in an earlier trial. . . . For estoppel to apply, the
fact sought to be foreclosed by [the] defendant must
necessarily have been determined in his favor in the
prior trial; it is not enough that the fact may have been
determined in the former trial. . . . The defendant has
the burden of showing that the issue whose relitigation
he seeks to foreclose was actually decided in the first
proceeding.’’ (Citations omitted; emphasis altered;
internal quotation marks omitted.) State v. Aparo,
supra, 223 Conn. 406.
Here, at the defendant’s first trial, he, in part, was
charged with and acquitted of unlawful restraint in the
first degree. To prove that crime beyond a reasonable
doubt, the state was required to establish that the defen-
dant restrained the victim under circumstances that
exposed her to a substantial risk of physical injury. See
General Statutes § 53a-95; State v. Ciullo, 140 Conn.
App. 393, 400, 59 A.3d 293 (2013), aff’d, 314 Conn. 28,
100 A.3d 779 (2014). ‘‘[N]o actual physical harm must
be demonstrated; the state need only prove that the
defendant exposed the victim to a substantial risk of
physical injury.’’ (Internal quotation marks omitted.)
State v. Ciullo, supra, 400.
The defendant argues that whether he ‘‘actually
restrained’’ the victim ‘‘was the central issue in dispute
at [his first] trial.’’ He contends: ‘‘If the jury had believed
that the defendant wrapped a sweater around [the vic-
tim’s] face, ‘pulled [it] tight’ and jerked her head back,
and used the sweater to muffle her screams as he
engaged in sexual intercourse with her for five to ten
minutes as she struggled to pull him off of her, then,
under the court’s instructions, it would have been
required to convict the defendant of unlawful restraint.’’
We disagree with this contention.
The crime of unlawful restraint in the first degree is
set forth in § 53a-95, which provides in relevant part:
‘‘(a) A person is guilty of unlawful restraint in the first
degree when he restrains another person under circum-
stances which expose such other person to a substantial
risk of physical injury. . . .’’ The definition of restrain
is set forth in General Statutes § 53a-91 (1), which pro-
vides in relevant part: ‘‘ ‘Restrain’ means to restrict a
person’s movements intentionally and unlawfully in
such a manner as to interfere substantially with his
liberty by . . . confining him either in the place where
the restriction commences or in a place to which he
has been moved, without consent. . . .’’
Unlawful restraint in the first degree is a specific
intent crime. See State v. Salamon, 287 Conn. 509, 542
n.28, 570, 949 A.2d 1092 (2008); State v. Youngs, 97
Conn. App. 348, 363, 904 A.2d 1240, cert. denied, 280
Conn. 930, 909 A.2d 959 (2006). A jury cannot find a
‘‘defendant guilty of unlawful restraint unless it first
[finds] that he . . . restricted the victim’s movements
with the intent to interfere substantially with her lib-
erty.’’ State v. Salamon, supra, 573. ‘‘[A] restraint is
unlawful if, and only if, a defendant’s conscious objec-
tive in . . . confining the victim is to achieve that
prohibited result, namely, to restrict the victim’s move-
ments in such a manner as to interfere substantially
with his or her liberty.’’ (Emphasis added.) Id., 543
n.28.
The only evidence presented by the state at the defen-
dant’s trials regarding the use of the sweater during the
penile-vaginal sexual assault was Kennedy’s statement
to the police. The jury at the first trial reasonably could
have believed the whole of that statement and, yet,
found that the defendant’s specific intent in using the
sweater was to keep the victim quiet and to muffle her
cries, rather than to confine the victim in an effort to
interfere substantially with her liberty. Kennedy admit-
ted to the police that the victim was screaming, that
she ‘‘obviously’’ was scared, and that likely she did not
want the situation to escalate. Kennedy told the police
that the defendant engaged in penile-vaginal intercourse
with the victim from behind her; specifically, Kennedy
told the police that, while the defendant was positioned
behind the victim, ‘‘he was penetrating her . . . [v]agi-
nally.’’ Kennedy then stated that the defendant then
‘‘grabbed the sweater [that was on] the couch, put it
around her face and pulled tight,’’ in an effort to muffle
her screams and keep her quiet.
Kennedy’s statement indicated that the forced sexual
assault already was in progress, as illustrated by his
statement to the police that the victim was crying and
screaming, before the defendant took the sweater from
the couch and wrapped it around the victim’s face in
an effort to muffle those screams and cries. There is
no indication that the jury necessarily decided that
Kennedy’s statement was not credible regarding the use
of the sweater simply because it concluded that the
state failed to establish one or more of the elements of
unlawful restraint. Kennedy did not tell the police that
the defendant used the sweater to restrict her move-
ments with the intent to interfere substantially with her
liberty; rather, he told the police that the defendant used
the sweater for the purpose of quieting and muffling
the victim’s screams, after the defendant already had
been engaging in intercourse with the victim, while the
victim was screaming and crying.
In fact, defense counsel seized upon this very detail
of Kennedy’s statement in arguing for acquittal. During
closing argument at the defendant’s first trial, defense
counsel, herself, argued in relevant part that if the defen-
dant had used the sweater as described by Kennedy,
he did so only ‘‘to keep [the victim] quiet, not to restrain
her.’’ The jury certainly could have agreed with defense
counsel’s argument even if it also fully credited Kenne-
dy’s statement to the police regarding the defendant’s
use of the sweater.
In sum, a finding of not guilty on the charge of unlaw-
ful restraint and a finding that Kennedy made a credible
statement to the police about the defendant’s use of
the sweater were not mutually exclusive findings, or in
any way inconsistent. The jury reasonably could have
believed Kennedy’s statement regarding the sweater,
but found that the statement did not establish or demon-
strate that the defendant had the intent to unlawfully
restrain the victim. Therefore, the defendant’s argument
that the jury would have been required to convict the
defendant of unlawful restraint if it believed Kennedy’s
statement to the police regarding the defendant’s use
of the sweater is without merit, and this claim fails the
first prong of the Aparo test.10 The defendant has failed
to demonstrate that the jury, in finding the defendant
not guilty of unlawful restraint in the first trial, neces-
sarily rejected Kennedy’s statement to the police, and
necessarily concluded that the sweater was not used
during the sexual assault. See State v. Aparo, supra,
223 Conn. 406 (‘‘For estoppel to apply, the fact sought
to be foreclosed by [the] defendant must necessarily
have been determined in his favor in the prior trial
. . . . The defendant has the burden of showing that
the issue whose relitigation he seeks to foreclose was
actually decided in the first proceeding.’’ [Citation omit-
ted; internal quotation marks omitted.]); see also Dow-
ling v. Finley Associates, Inc., 248 Conn. 364, 377, 727
A.2d 1245 (1999) (‘‘[w]here there is more than one possi-
ble reason for the jury’s verdict, and the court . . .
cannot say that any one is necessarily inherent in the
verdict, the doctrine of collateral estoppel is inapplica-
ble . . . .’’ [internal quotation marks omitted]). Conse-
quently, we conclude that the admission of evidence
regarding the use of the sweater did not violate the
defendant’s fifth amendment guarantee against dou-
ble jeopardy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court rendered a judgment of acquittal on two additional charges
of sexual assault in the first degree in violation of § 53a-70 (a) (1).
2
The parties use the term ‘‘collateral estoppel’’ throughout their appellate
briefs. Previous case law also has employed this term when addressing
claims similar to the one being made by the defendant. We observe, however,
that the United States Supreme Court recently determined that ‘‘ ‘issue
preclusion’ is the more descriptive term’’ for such claims. Bravo-Fernandez
v. United States, U.S. , 137 S. Ct. 352, 356 n.1, 196 L. Ed. 2d 242
(2016), citing Yeager v. United States, 557 U.S. 110, 120, n.4, 129 S. Ct.
2360, 174 L. Ed. 2d 78 (2009), and 1 Restatement (Second), Judgments § 27,
comment (b), pp. 251–52 (1980). Nevertheless, although we recognize that
‘‘issue preclusion’’ is now the preferred term of the United States Supreme
Court, because of our prior precedent and the parties’ arguments, we use
the term ‘‘collateral estoppel’’ in this opinion.
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
4
Kennedy’s statement to the police was admitted into evidence for sub-
stantive purposes at both trials pursuant to State v. Whelan, 200 Conn. 743,
513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598
(1986). Although the defendant objected to the admission of the statement
at his second trial, he does not challenge on appeal the trial court’s decision
overruling his objection and admitting the statement.
5
The record reveals that Kennedy pleaded guilty to sexual assault in the
first degree and received a sentence of twenty years incarceration, execution
suspended after ten years, with ten years of probation.
6
The crime of unlawful restraint in the first degree is set forth in § 53a-
95, which provides: ‘‘(a) A person is guilty of unlawful restraint in the first
degree when he restrains another person under circumstances which expose
such other person to a substantial risk of physical injury.
‘‘(b) Unlawful restraint in the first degree is a class D felony.’’
The definition of restrain is set forth in General Statutes § 53a-91 (1),
which provides: ‘‘ ‘Restrain’ means to restrict a person’s movements inten-
tionally and unlawfully in such a manner as to interfere substantially with
his liberty by moving him from one place to another, or by confining him
either in the place where the restriction commences or in a place to which
he has been moved, without consent. As used herein ‘without consent’
means, but is not limited to, (A) deception and (B) any means whatever,
including acquiescence of the victim, if he is a child less than sixteen years
institution having lawful control or custody of him has not acquiesced in
the movement or confinement.’’
7
This statement reflects the underlying assumption of the defendant’s
argument that evidence of the sweater’s use during the sexual assault can
have no purpose other than to prove restraint. As set forth more fully in
this opinion, that assumption takes too narrow a view of the evidence. In
fact, the trial court’s oral decision reflects that the court considered the
sweater as evidence that the defendant was trying to muffle the victim’s
cries and screams. The court also found, on the basis of the evidence, that
the victim was crying before the defendant employed the sweater. Thus,
contrary to the defendant’s suggestion, the trial court did not rely on the
sweater as ‘‘restraint evidence’’ to find the defendant guilty of sexual assault
in the first degree.
8
The defendant asserts that his claim is preserved, and, in the event that
we determine otherwise, he requests review under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989).
9
The victim already had testified, without objection, that when she awoke
in the morning, the sweater was wrapped around her face. The sweater also
had been admitted into evidence, without objection.
10
Having concluded that the defendant failed to establish the first prong
of Aparo, we need not consider the second prong.