State v. Ares

• Citation: 345 Conn. 290,284 A.3d 967
• Decision Date: 22 November 2022
• Docket Number: SC 20367
• Parties: STATE of Connecticut v. Angel ARES
• Court: Supreme Court of Connecticut

345 Conn. 290

284 A.3d 967

STATE of Connecticut

v.Angel ARES

SC 20367

Supreme Court of Connecticut.

Argued March 29, 2022

Officially released November 22, 2022

John R. Weikart, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Linda F. Rubertone, senior assistant state's attorney, with whom, on the brief, was Sharmese L. Walcott, state's attorney, for the appellee (state).

McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^*

KAHN, J.

After a bench trial, the defendant, Angel Ares, was convicted of one count of arson in the first degree in violation of General Statutes § 53a-111, eight counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). In the present appeal, the defendant challenges only his convictions of risk of injury to a child by raising the following three claims of error: (1) there was insufficient evidence to support a conviction under the act prong of § 53-21 (a) (1) because the state had failed to adduce any proof that he had "perpetrated an act directly on the person of a minor" as required by the judicial gloss first imposed by this court in State v. Schriver , 207 Conn. 456, 542 A.2d 686 (1988) ; (2) the act prong of § 53-21 (a) (1) is unconstitutionally vague as applied to him because the conduct proven by the state falls outside of that very same gloss; and (3) the trial court improperly convicted him under the situation prong of § 53-21 (a) (1) when the state's allegations against him were limited to only the act prong of that statute.¹ Although our reading of Schriver and its progeny leads us to reject the defendant's first two claims on this record, we agree with the defendant that the trial court committed reversible error by applying the incorrect elements and convicting the defendant under the situation prong, a provision he was not formally charged with violating. Accordingly, we reverse the trial court's judgment of conviction with respect to the counts of risk of injury to a child and remand the case for a new trial only as to those four counts.

The following undisputed facts are relevant to our consideration of the claims presented. At the time of the incident in question, the defendant lived on the first floor of a three-family residence located on Brook Street in the city of Hartford. The defendant was looking for money in order to purchase drugs and got into an argument inside of that residence with his stepfather, Maximino Rosa, on a Saturday afternoon. The argument escalated, and the defendant was eventually forced out of the building's front door by one of his stepbrothers, Wilfredo Rosa. Evidence adduced at trial demonstrated that, moments after being ejected from the building, the defendant, using a book of matches, set fire to a mattress on the front porch and fled the scene.²

The resulting conflagration was, as the trial court aptly described, "inten[se], fast moving, and dangerous to anyone in proximity to it." The police officer who first arrived at the scene, Brian Herrmann, testified that all three stories of the building were already engulfed in flames by the time he arrived.³ Ceilings collapsed, floors began to give way, and interior walls were either charred or covered in soot. Electrical wires detached from the outside of the building, dropped onto a nearby vehicle, and started sparking in the street. The vinyl siding on the building melted and began falling around the structure's exterior. Captain Brian Kennedy of the Hartford Fire Department testified that the fire caused overwhelming heat and smoke—even in the rear portion of the building—and that the conditions inside were "almost not survivable if you're not on some kind of self-contained breathing apparatus."

All twelve occupants who were at the scene at the time of the incident were evacuated from the building that day with only minor injuries reported. The defendant's mother, who was on the first floor when the fire started, was taken to a hospital and treated for smoke inhalation. A firefighter who responded to the scene sustained a laceration to his forehead from falling debris while inside of the building. A couple living in the third floor apartment escaped unharmed but lost two family pets. Most relevant to the claims raised in the present appeal, however, were the four minor children who were inside of the building's second floor apartment. Wilfredo's brother, Danny Rosa, was with those children that day and got all of them out of the building without injury.⁴

The state subsequently charged the defendant with several crimes, including two counts of arson in the first degree in violation of § 53a-111, eight counts of reckless endangerment in the first degree in violation of § 53a-63, four counts of risk of injury to a child in violation of § 53-21 (a) (1), and one count of criminal mischief in the first degree in violation of General Statutes § 53a-115. The defendant entered a plea of not guilty to those charges and waived his right to a jury trial. During the two day bench trial that followed, the state presented testimony from various occupants of the building, police officers, and firefighters. The defendant pursued a theory that the fire had been caused unintentionally by some other person's discarded cigarette.

The trial court rejected that defense and found the defendant guilty on all counts except for the count alleging criminal mischief in the first degree.⁵ In its oral decision, the trial court made the following finding of fact: "[O]n February 24, 2018, in the midafternoon in the vicinity of 14-16 Brook Street in Hartford ... the defendant, with the intent to at least damage that building, started a fire, which destroyed major portions of that three-family residence." The trial court also found that, "at the time he set the fire, the defendant knew the building was occupied ...." This specific factual finding is reasonably supported by evidence in the record. Danny Rosa testified at trial that family members moved freely throughout the house and that, in fact, the defendant himself had been on the second floor shortly before the fire. Wilfredo Rosa likewise testified that, at some point during the argument that followed in the first floor apartment, the defendant was specifically told to leave because he shouldn't be "doing crazy things around the kids ...."

The trial court sentenced the defendant to eighteen years of incarceration on one of the two counts of arson in the first degree, ten years of incarceration on each of the four counts of risk of injury to a child, and one year of incarceration on each of the eight counts of reckless endangerment in the first degree.⁶ The trial court specified that each of these sentences were to run concurrently, resulting in a total effective sentence of eighteen years of incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The defendant raises three claims of error relating to his conviction on the counts alleging risk of injury to a child. First, the defendant claims that the evidence adduced by the state at trial was insufficient to support a conviction under the act prong of § 53-21 (a) (1) because the state had failed to adduce any proof that he had "perpetrated an act directly on the person of a minor." The defendant next claims that this same lack of proof renders that section of the statute unconstitutionally vague as applied to him. Finally, the defendant claims that the trial court violated his constitutional right to notice of the accusations against him by improperly applying the elements under the situation prong of our risk of injury statute when the state's information formally alleged only a violation of that statute's act prong. We address the defendant's first two claims, both of which turn on an examination of the judicial gloss imposed by Schriver and its progeny, in part I of this opinion. We then consider the defendant's constitutional notice claim in part II of this opinion.

I

Although evidentiary insufficiency and constitutional void for vagueness claims are often analytically distinct from one another, in this case, they are entwined because both are based on the defendant's assertion that the record lacks evidence of an act directly perpetrated on the children. See, e.g., State v. Schriver , supra, 207 Conn. at 458 n.3, 542 A.2d 686 (noting that claim of "evidentiary [sufficiency was the] flip side of the [defendant's] void for vagueness challenge"). We address these two claims first because the defendant, if successful on either, would be entitled to relief in the form of a directed judgment of acquittal. See State v. Padua , 273 Conn. 138, 178–79, 869 A.2d 192 (2005).

In order to put the defendant's first two claims into context, we must begin with a brief review of the act prong of the risk of injury statute and the judicial gloss imposed on it by case law. This court first described the conduct proscribed under the second part of § 53-21 (a) (1) as "acts directly perpetrated on the person of the minor and injurious to his moral or physical [well-being]" in State v. Dennis , 150 Conn. 245, 250, 188 A.2d 65 (1963). That description was subsequently elaborated on, and elevated to constitutional significance, by this court's decision in State v. Schriver , supra, 207 Conn. 456, 542 A.2d 686. The defendant in that case had grabbed the waist of a fully clothed child while uttering sexually suggestive remarks and was subsequently charged with violating § 53-21 by committing " ‘an act likely to impair the health or morals of the victim.’ " Id., at 457–58, 542 A.2d 686.

In addressing an as applied vagueness claim in Schriver , we separated our analysis of acts likely to impair the "morals" of children on the one hand and acts likely to impair the "health" of children on the other. (Internal quotation...