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 STATE OF CONNECTICUT v. CHRISTIAN DERKS
               (AC 35547)
                  Gruendel, Lavine and Bear, Js.
    Argued October 20, 2014—officially released January 20, 2015

(Appeal from Superior Court, judicial district of New
  Haven, Fasano, J. [motion to dismiss]; Clifford, J.
                    [judgment].)
  James B. Streeto, assistant public defender, for the
appellant (defendant).
 Marc J. Herman, certified legal intern, with whom
were Bruce R. Lockwood, senior assistant state’s attor-
ney, and, on the brief, Michael Dearington, state’s attor-
ney, and Maxine V. Wilensky, senior assistant state’s
attorney, for the appellee (state).
                           Opinion

   LAVINE, J. The defendant, Christian Derks, appeals
from the judgment of conviction, rendered following his
conditional plea of nolo contendere, of sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (2) and risk of injury to a child in violation of
General Statutes § 53-21 (2). On appeal, the defendant
claims that the trial court improperly denied his motion
to dismiss because his prosecution was time barred by
the statutes of limitation set forth in General Statutes
§§ 54-193a and 54-193 (b),1 and the delay violated his
due process rights. The defendant’s principal assertion
is that the state unreasonably delayed the execution of
the arrest warrant.2 We disagree, and accordingly,
affirm the judgment of the trial court.
   The following facts and procedural history are rele-
vant to the resolution of the defendant’s claim. On Sep-
tember 21, 1997, the twelve year old victim,3 a baby-
sitter, filed a complaint with the Meriden police alleging
that the thirty-three year old defendant had sexually
assaulted her the previous night.4 On February 3, 1998,
Meriden police obtained an arrest warrant for the defen-
dant. Prior to the issuance of the arrest warrant, the
defendant moved from Connecticut to Colorado in the
fall of 1997, leaving behind his wife and daughter.
Although it is unclear from the record on what date the
defendant moved to Colorado, he obtained employment
and began working at Soderberg Masonry on December
16, 1997. From the time the arrest warrant was issued to
its ultimate execution, the defendant resided at various
addresses in Colorado. Following the defendant’s arrest
on an unrelated crime in Colorado, he was served with
an extradition warrant on October 3, 2010. After waiving
extradition from Colorado and arriving back in Con-
necticut, the defendant was served with the arrest war-
rant by Connecticut authorities on October 19, 2010.
   By motion filed November 30, 2011, the defendant
sought to dismiss the information, claiming that the
prosecution was time barred by the statute of limita-
tions or, in the alternative, that the continued prosecu-
tion of the case violated his due process rights pursuant
to the fifth and fourteenth amendments to the United
States constitution, and article first, § 8, of the Connecti-
cut constitution. On January 4, 2012, following an evi-
dentiary hearing, the court, Fasano, J., denied the
defendant’s motion to dismiss. In its memorandum of
decision, the court determined that ‘‘the only rational
conclusion, absent evidence to the contrary, is that
the defendant was on the run, intending to elude the
authorities.’’ As such, the court found that ‘‘the years
of delay with respect to his arrest and prosecution were
occasioned by his very conduct.’’ Ultimately, the court
concluded that ‘‘the actions of the authorities to appre-
hend the defendant, though minimal, were adequate
under the circumstances of this case where the delay
was occasioned by the defendant’s efforts to elude
authorities.’’5
   On December 27, 2012, the defendant entered a plea
of nolo contendere, conditioned on his right to appeal
from the court’s denial of his motion to dismiss. The
court, Clifford, J., accepted the plea, entered a finding
of guilty, and imposed a total effective sentence of ten
years of incarceration, execution suspended after two
years, and ten years of probation. Thereafter, on July
19, 2013, the defendant filed a motion for rectification,
which was granted in part by Judge Fasano. This appeal
followed. Additional facts will be set forth as necessary.
  The defendant claims that Judge Fasano improperly
denied the motion to dismiss because the prosecution
was time barred by §§ 54-193a and 54-193 (b). He argues
that although the warrant for his arrest was issued
within the relevant statutes of limitation, it was not
executed within a reasonable period of time and, there-
fore, the statutes of limitation were not tolled. He also
claims that the delay in executing the warrant violated
his due process rights. The defendant asserts that he
neither took evasive action nor was difficult to appre-
hend after the warrant was issued. We disagree.
   At the outset, we set forth the applicable standard
of review. ‘‘A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . .
[O]ur review of the trial court’s ultimate legal conclu-
sion and resulting [denial] of the motion to dismiss will
be de novo. . . . Factual findings underlying the
court’s decision, however, will not be disturbed unless
they are clearly erroneous. . . . The applicable stan-
dard of review for the denial of a motion to dismiss,
therefore, generally turns on whether the appellant
seeks to challenge the legal conclusions of the trial
court or its factual determinations.’’ (Internal quotation
marks omitted.) State v. Pittman, 123 Conn. App. 774,
775, 3 A.3d 137, cert. denied, 299 Conn. 914, 10 A.3d
530 (2010). Thus, in order to determine the appropriate
standard of review for the defendant’s claim, we first
must ascertain whether the defendant is challenging
the trial court’s legal conclusions or factual findings.
   In this case, the defendant contests Judge Fasano’s
factual finding that he was eluding authorities, which,
in turn, led to the court’s allegedly improper legal con-
clusion that the statutes of limitation were tolled.
‘‘[W]hen the plaintiff asserts that the facts found were
insufficient to support the court’s legal conclusion, th[e]
issue presents a mixed question of law and fact to which
we apply plenary review. . . . We must therefore
decide whether the court’s conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Centrix Management Co., LLC v. Valencia, 132
Conn. App. 582, 586–87, 33 A.3d 802 (2011).
   Section 54-193a provides in relevant part: ‘‘Notwith-
standing the provisions of section 54-193, no person
may be prosecuted for any offense, except a class A
felony, involving sexual abuse, sexual exploitation or
sexual assault of a minor except within thirty years
from the date the victim attains the age of majority or
within five years from the date the victim notifies any
police officer or state’s attorney acting in such police
officer’s or state’s attorney’s official capacity of the
commission of the offense . . . .’’
   Section 54-193 (b) provides: ‘‘No person may be pros-
ecuted for any offense, other than an offense set forth
in subsection (a) of this section, for which the punish-
ment is or may be imprisonment in excess of one year,
except within five years next after the offense has
been committed.’’
  In the present case, the victim notified the police of
the alleged sexual assault on September 21, 1997, and
an arrest warrant for the defendant was issued on Feb-
ruary 3, 1998. The extradition warrant was served on
the defendant on October 3, 2010, and the arrest warrant
was served on October 19, 2010. The question, then, is
whether the statutes of limitation under §§ 54-193a and
54-193 (b) were tolled after the warrant was issued on
February 3, 1998.
  In State v. Crawford, 202 Conn. 443, 450, 521 A.2d
1034 (1987), our Supreme Court stated that once an
arrest warrant is issued and delivered to the proper
officer for service, the ‘‘prosecutorial authority has
done everything possible within the period of limitation
to evidence and effectuate an intent to prosecute, [and]
the statute of limitations is tolled.’’ Our Supreme Court
concluded that ‘‘[a]n accused should not be rewarded,
absent evidence of a lack of due diligence on the part
of the officer charged with executing the warrant, for
managing to avoid apprehension to a point in time
beyond the period of limitation. . . .
   ‘‘[I]n order to toll the statute of limitations, [however]
an arrest warrant, when issued within the time limita-
tions of § 54-193 (b), must be executed without unrea-
sonable delay. . . . We do not adopt a per se approach
as to what period of time to execute an arrest warrant
is reasonable. A reasonable period of time is a question
of fact that will depend on the circumstances of each
case. If the facts indicate that an accused consciously
eluded the authorities, or for other reasons was difficult
to apprehend, these factors will be considered in
determining what time is reasonable. If, on the other
hand, the accused did not relocate or take evasive
action to avoid apprehension, failure to execute an
arrest warrant for even a short period of time might be
unreasonable and fail to toll the statute of limitations.’’
(Citations omitted; emphasis added.) Id., 450–51. The
defendant has the burden to prove the affirmative
defense that the prosecution is barred by the statutes
of limitation. Id., 451. ‘‘[O]nce a defendant puts forth
evidence to suggest [however] that [he] was not elusive,
was available and was readily approachable, the burden
shifts to the state to prove that the delay in executing
the warrant was not unreasonable.’’ (Internal quotation
marks omitted.) State v. Woodtke, 130 Conn. App. 734,
740, 25 A.3d 699 (2011).
   In this case, the defendant eluded authorities and
was difficult to apprehend, as he was living in Colorado,
which the authorities did not know. The trial court
determined that the defendant was elusive, ‘‘[g]iven the
sequence of events in this particular case: the allega-
tions of sexual abuse of September 20, 1997; the defen-
dant’s confrontation with his wife over the allegations
and his removal from the household; the subsequent
complaint of vaginal, sexual assault [made to the police
on] December 11, 1997; the inability of the police to
locate the defendant during the investigation; and the
abrupt departure from his wife and child and relocation
in the state of Colorado by December 16, 1997 . . . .’’
Judge Fasano continued: ‘‘[T]he fact that the defendant
lived at multiple addresses in Colorado, managed to
become incarcerated in a Colorado prison, registered
as a sex offender and placed on a probationary status,
filed tax returns, etc., hardly qualifies as making oneself
available, approachable and readily discoverable to
authorities in Connecticut, though, it certainly qualifies
as evidence of an intent to establish a permanent resi-
dence in Colorado, far from the police department
investigating the allegations of sexual abuse.’’ The
defendant did not prove on appeal that Judge Fasano’s
factual findings were clearly erroneous. Given that con-
clusion, the burden of proof never shifted to the state,
but rather remained with the defendant.
   Judge Fasano further found that the defendant did
not allege actual prejudice in support of his due process
claim. ‘‘For the defendant to succeed on his claim, a
showing of delay will not in and of itself suffice to
show prejudice, except in an extreme case, and actual
prejudice vel non is the focal point of the inquiry.’’
(Internal quotation marks omitted.) State v. Pittman,
supra, 123 Conn. App. 780. In this case, Judge Fasano
found that ‘‘[a]ny prejudice, under the circumstances
here, is minimal and speculative.’’ We agree with the
court’s finding.
   ‘‘To evaluate unreasonable delay and due diligence,
we must also consider the police department’s actions
in executing the warrant.’’ State v. Woodtke, supra, 130
Conn. App. 744. In the present case, the defendant
argues that he was available to police and easily dis-
coverable in Colorado because he paid taxes, held a
driver’s license, maintained employment, complied with
the requirement to register as a sex offender with five
different police departments in Colorado for an unre-
lated conviction, and received service of divorce papers
and orders of child support from his wife, who remained
in Connecticut. The police entered the defendant’s war-
rant into the FBI’s National Crime Information Center
database and conducted computer searches for the
defendant in 2006 and 2008. The court found that an
error in the national database system prevented the
Meriden police from being alerted to the defendant’s
arrests and proceedings in Colorado. Judge Fasano was
‘‘satisfied that, under the circumstances of this case,
though the police efforts may be characterized as mini-
mal, they were sufficient.’’ Thus, we cannot conclude
that the period of alleged delay in this case was unrea-
sonable or that the state violated the defendant’s right
to due process, and, therefore, we conclude that the
court properly denied the defendant’s motion to
dismiss.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     We note that although §§ 54-193a and 54-193 (b) have been amended
since the date of the crimes in 1997, the amendments to those statutes are
not relevant to the claims on appeal. Accordingly, we refer to the current
revision of those statutes.
   2
     Approximately twelve years and eight months transpired between the
date the arrest warrant was issued and when it was served on the defendant
in Colorado.
   3
     In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
   4
     On December 11, 1997, the victim gave the police a written statement
alleging that forced penile-vaginal intercourse occurred on the night of
September 20, 1997.
   5
     In his memorandum of decision, Judge Fasano noted that the defendant’s
wife obtained a divorce from the defendant, who defaulted on his appearance
in December, 1998; that the defendant lived at approximately seven different
addresses in Colorado; was arrested and incarcerated in Colorado on charges
of burglary in the second degree and sexual assault in the third degree; and
had registered in Colorado as a sex offender.
