Legal improprieties in jury instructions, even those that pertain to elements of offenses, may well be harmless error if they do not pertain to “critical factual issues” in the case as demonstrated by the evidence and highlighted by closing arguments, thereby indicating beyond a reasonable doubt that the jury was not misled. The jury reasonably could have found the following facts. The 23 year old victim was heavily intoxicated when she exited a nightclub in Stamford in a crowd with her sister, L, and friends. Arnold Devalda, someone the victim had never met, approached them. A crowd disturbance occurred, police responded and Devalda guided the victim to his car, separating her from friends. Devalda refused to let her out, drove away, punched the victim when she tried to open the door and accelerated onto Interstate 95. He hit her in the face several times, drove to a state park and sexually assaulted the victim vaginally. Following a jury trial, Devalda was convicted of sexual assault, kidnapping in the first degree in violation of C.G.S. §53a-92(a)(2)(A) and a related probation violation. Devalda appealed claiming, inter alia, that the court improperly instructed the jury on the restraint element of C.G.S. §53a-92(a)(2) by omitting statutory language limiting the applicability of restraint via “acquiescence of the victim”  to those victims who are “child[ren] less than 16 years old or an incompetent person…” The state conceded the error but contended that it was harmless. The Supreme Court reversed the judgment on the kidnapping conviction alone. The nature of the impropriety coupled with the defense theory that the victim’s allegations were fabrications occasioned by regret from having been unfaithful to her boyfriend, required reversal of the kidnapping conviction because it could not be found beyond a reasonable doubt that the jury was not misled by the improper instruction. Viewed in context, the instruction improperly permitted the jury to find the restraint element satisfied and convict the defendant of kidnapping contrary to statutory requirements, if it found that the victim accompanied him passively or silently—a condition the jury could have found given evidence of the victim’s heavily intoxicated state. Consistent with the evidence and parties’ arguments, the jury recognized consent as a significant issue and requested further instruction. The court repeated the improper instruction, verbatim.

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