State v. Cutro

• Decision Date: 18 April 1995
• Docket Number: No. 13315,13315
• Citation: 37 Conn.App. 534,657 A.2d 239
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael CUTRO.

Page 239

657 A.2d 239

37 Conn.App. 534

STATE of Connecticut v. Michael CUTRO.

No. 13315.

Appellate Court of Connecticut.

Argued Jan. 6, 1995.

Decided April 18, 1995.

Joseph E. Dimyan, with whom, on the brief, was Melinda S. Monson, Danbury, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were Walter D. Flanagan, State's Atty., and Catherine C. Brannelly, Asst. State's Atty., for appellee (state).

Before LANDAU, SPEAR and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of public indecency in violation of General Statutes § 53a-186, ¹ and risk of injury to a child in violation of General Statutes § 53-21. ² The defendant argues that the state failed to establish beyond a reasonable doubt the necessary elements and the required nexus between his actions and the victim in support of a conviction for each of these crimes. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 11, 1992, at approximately 9:15 p.m., S, then seventeen years of age, and her sister, D, the victim, then fourteen years of age, went shopping at the Danbury Fair Mall. ³ They parked near the merchandise pickup area at Sears and entered the mall through Sears. Upon entering Sears, S noticed a man at the snack counter whom she recognized. D also recognized the man, later identified as the defendant, from prior trips to the mall. The defendant said "Hello ladies" to S and D. S and D were in the mall approximately ten minutes and left when the mall closed at 9:30 p.m. The defendant walked behind S and D and passed them as they exited the mall. He also turned around and looked at them.

Once S was in her car in the parking lot, she observed the defendant in a car that was parked three cars away from hers. The area where her car was parked had lights all around and, because the parking lot is on a hill, S was able to look down on the defendant. From inside her car, S noticed the defendant sitting inside his car, shaking back and forth as if having a seizure. His hand was shaking below his chest. D also observed the defendant moving back and forth with his head back and his mouth open, but she did not know what he was doing. S observed the defendant for approximately ten seconds. She then got out of her car and walked back toward the mall to get security because she "knew what he was doing." D remained in the car and waited while S went to get security.

S told Richard DeMerell, a security supervisor at the mall, what she had seen and DeMerell walked to the defendant's car. When DeMerell approached the vehicle, he observed a male who was "nude from the waist to the knees and was masturbating." The motor was running, the parking lights were on and the instrument panel in the defendant's car was fully illuminated. DeMerell instructed the defendant to turn off the ignition, drop the keys out the window, pull up his pants and put his hands on the steering wheel. The defendant stated that what he was doing was natural and that he did not see anything wrong with his actions. DeMerell then called the Danbury police for assistance and the defendant was subsequently placed under arrest by Officer Anthony Maher.

At the close of the state's case, the defendant made an oral motion for a directed verdict of not guilty as to both counts, which the court denied. The next day, prior to closing arguments, the defendant filed a motion for a directed verdict of not guilty. The court reserved judgment on the motion and, after counsel made closing arguments, denied the motion. The jury returned a verdict of guilty of public indecency in violation of § 53a-186(a)(2) and risk of injury to a child in violation of § 53-21. Following the return of the verdict, the defendant proffered an oral motion for a judgment of acquittal notwithstanding the verdict, which the court denied. The court subsequently denied the defendant's written motion to set aside the verdict and for a directed verdict of not guilty.

I

The defendant first argues that the state failed to establish beyond a reasonable doubt the necessary elements and the required nexus between his actions and the victim in support of a conviction for the crime of risk of injury to a child. "In reviewing a sufficiency of the evidence claim, this court first reviews the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury." (Internal quotation marks omitted.) State v. Szymkiewicz, 36 Conn.App. 625, 627, 652 A.2d 523 (1995). "The court then determines whether, on the facts thus established and the inferences drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." Id.

Pursuant to General Statutes § 53-21, "[a]ny person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child" shall be punished. The statute thus proscribes two general types of behavior: "(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare ... and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." (Citation omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); State v. Erzen, 29 Conn.App. 591, 594, 617 A.2d 177 (1992). The state concedes that there was no evidence to support a conviction based on the second section of the statute; ⁴ we will therefore limit our discussion to the first section of the statute, under which "it is not necessary, nor have the courts required, that a defendant touch any part of the victim's body.... Rather, the creation of a prohibited situation is sufficient to breach the statute." State v. Erzen, supra, at 594-95, 617 A.2d 177.

The defendant argues that he did not wilfully or unlawfully cause or permit a child under the age of sixteen to be placed in a situation where her morals were likely to be impaired. In State v. Torrice, 20 Conn.App. 75, 81, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989), we stated that the court properly instructed the jury, pursuant to § 53-21, that to convict the defendant it must find "that he acted wilfully and 'that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences.' " Although Torrice involved behavior prohibited by the second section of § 53-21, we find that the standard evinced therein is applicable to an alleged violation of the first section of the statute. ⁵ Applying this standard, we conclude, on the basis of the evidence presented at trial, that the jury reasonably could have found that the defendant acted wilfully and that his conduct was of such a character that it demonstrated a reckless disregard of the consequences.

The defendant also argues, citing State v. Tirado, 21 Conn.App. 449, 574 A.2d 252, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990), and State v. Erzen, supra, 29 Conn.App. 591, 617 A.2d 177, that the fact pattern in this case does not fall within the purview of the circumstances contemplated by § 53-21 because those cases require that he exhibit a pattern of conduct before he may be convicted of violating § 53-21. We disagree with the defendant's interpretation of Tirado and Erzen, and conclude that, under the facts and circumstances of this case, the defendant created a situation likely to impair the morals of a child.

In State v. Tirado, supra, 21 Conn.App. at 455, 574 A.2d 252, the defendant was charged under the first part of § 53-21 with "wilfully or unlawfully caus[ing] or permitt[ing] 'a child under the age of sixteen to be placed in such a situation that her morals were likely to be impaired by [the defendant's] kissing the victim, exposing himself in front of the victim and requesting her to engage in sexual contact.' " The defendant in Tirado argued that his conviction could not stand because there was evidence of only one incident of kissing, and, pursuant to State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), kissing alone cannot constitute a violation of § 53-21. State v. Tirado, supra, at 454, 574 A.2d 252. In rejecting this argument, we stated: "It is clear that the allegation that the defendant kissed the victim was not meant to provide the sole basis for a conviction under the first count, but was intended to be part of the state's allegation that there was a pattern of sexual conduct. That pattern also included the defendant exposing himself to the victim and requesting her to engage in sexual contact with him." Id., at 455, 574 A.2d 252. In State v. Erzen, supra, 29 Conn.App. 591, 617 A.2d 177, the defendant lured two children into a secluded area, asked them to unzip his trousers, exposed himself to them, and touched his penis in front of them. We stated in Erzen that "[i]t is this pattern of lewd and sexual conduct that clearly demonstrates that the defendant violated § 53-21." Id., at 596, 617 A.2d 177.

Although the defendants in Tirado and Erzen embarked on patterns of lewd and sexual conduct, those cases do not stand for the proposition that such a pattern was required in order to sustain a conviction under § 53-21. Moreover, the defendant in Erzen argued that his actions were isolated in nature and therefore were not likely to impair the morals of the minor victims. In Erzen, we rejected the defendant's claim, declining "to set out a bright line rule requiring a specific or...