State v. Erzen

• Decision Date: 01 December 1992
• Docket Number: No. 10858,10858
• Citation: 29 Conn.App. 591,617 A.2d 177
• Parties: STATE of Connecticut v. Vincent ERZEN.
• Court: Connecticut Court of Appeals

Page 177

617 A.2d 177

29 Conn.App. 591

STATE of Connecticut v. Vincent ERZEN.

No. 10858.

Appellate Court of Connecticut.

Argued Oct. 1, 1992.

Decided Dec. 1, 1992.

James P. Ginocchio, Asst. Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were Eugene J. Callahan, State's Atty., and Robert Katz, Asst. State's Atty., for appellee (state).

Before EDWARD Y. O'CONNELL, LANDAU and HEIMAN, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of two counts of risk of injury to a child in violation of General Statutes § 53-21. ¹ The defendant claims that § 53-21 as applied to the facts of this case is so vague and indefinite as to violate the due process provisions of article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. We disagree.

The trial court could reasonably have found the following facts. On Saturday, May 18, 1991, P. took her eight year old daughter, C., and her daughter's eight year old friend, E., to the playground located at Weston Elementary School. While C. and E. were riding their bicycles in front of the school building, the defendant approached them and requested their help in looking for "his lost puppy." He asked C. and E. to go around the right side of the building while he went around the left side. The children followed the defendant's directions and they all met in a small alcove at the rear of the building.

Once at the rear of the building, the defendant asked C. if she knew how to "unzip his zipper." C., knowing that the defendant meant the zipper on his trousers, said, "No." He then asked C. to unzip his zipper and the child again replied, "No." Directing himself to E., the defendant inquired whether she knew how to unzip a zipper. E. also knew that the defendant was speaking of the zipper on his trousers and made no reply. The defendant then opened his zipper, exposed his penis, and asked the children to stand guard. Both C. and E. saw the defendant "pat" or "tap" his penis with a tissue. During this time, the defendant asked the children if anyone was coming. The defendant did not ask the children to touch his penis, nor did he touch the children. C. then said that she was going to leave and the defendant asked her to stay. C. was afraid to leave because she thought the defendant might grab her or hit her. The children heard C.'s mother calling to them and they ran to her. Both children were agitated and upset and, upon being questioned by P., told her what had occurred.

P., who had previously walked to the back of the building looking for the children, asked a woman to look after them and looked toward where the girls indicated the event had occurred. She saw the defendant walking from the alcove zipping up his pants. She ran after him and questioned his presence and his actions. The defendant falsely identified himself as Joe, a worker at the school, and said, "Leave me alone or I'll have to hit you." He then gestured with his open hand towards P.'s face, stopping about six inches from it. She stopped following the defendant at this point and reported the episode to the police.

At the time the defendant exposed himself to the children, he was wearing glasses, a plaid shirt, a baseball cap, and had a bandage on his chin. When the defendant was arrested he was wearing glasses, a white T-shirt, a baseball cap, had a bandage on his chin, and was carrying a plaid shirt. At the police station, the defendant removed the bandage from his chin and flushed it down the toilet. The policeman who arrested the defendant observed that there was nothing on the defendant's chin that would require a bandage. The defendant was convicted of both counts of risk of injury to a child. On appeal, the defendant challenges the constitutionality of General Statutes § 53-21 by asserting that the statute, as applied to him, is vague and lacks specificity.

"In order to surmount a vagueness challenge, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979)." (Internal quotation marks omitted.) State v. Palangio, 24 Conn.App. 300, 302-303, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). "The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948).... Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988)." (Citations omitted.) State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980). A determination of fair warning is ascertained in several ways. We review prior case law to determine whether the defendant had fair warning that his acts violated § 53-21; we look to the penal code for guidance because § 53a-2 provides that "the provisions of this title shall apply to any offense defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires...." We also look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.

General Statutes § 53-21 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." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). It is this first prong of the statute that the defendant challenges. Under this prong, it is not necessary, nor have the courts required, that a defendant touch any part of the victim's body to violate § 53-21. Rather, the creation of a prohibited situation is sufficient to breach the statute. State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984). Section 53-21 does not specify the "situations" deemed likely to impair the morals of a child. Id., at 160, 471 A.2d 632. An examination of prior judicial decisions and other penal statutes, and common sense show, however, that the defendant had fair warning that this situation would impair the morals of a minor.

In State v. Tirado, 21 Conn.App. 449, 574 A.2d 252 (1990), we upheld the conviction of a defendant charged with violating the first prong of § 53-21 where the evidence showed that the defendant impaired the morals of a child by kissing the victim, exposing himself to her and requesting her to engage in sexual contact. ² In Tirado, we made it abundantly clear that the kissing of the victim was not intended to be the sole basis for the conviction, but rather was part of a pattern of sexual conduct. That pattern, we held, also included the defendant's exposing himself to the victim and requesting her to engage in sexual contact with him. Here, the defendant, using a ploy, placed two children in a similar situation. He lured them into a secluded area, asked them to stand guard, asked them to open his zipper and, when they refused, proceeded to open his zipper himself and touch his penis. Although he did not touch the children, he did expose himself, and the request to open his zipper is easily seen as both a request for and a step towards sexual contact. It is this pattern of lewd and sexual conduct that clearly demonstrates that the defendant violated § 53-21.

The defendant relies on State v. Schriver, supra, to support his claim. The defendant's reliance is misplaced. The defendant in Schriver was charged with violating the second prong of § 53-21; Erzen is charged with violating the first prong. The defendant in Schriver did not expose himself to the victim, nor did the defendant deliberately touch the private parts of the victim. The court held that because there was no deliberate touching of the private parts of a child, which is the standard furnished in State v. Pickering, supra, for the violation of the second prong of § 53-21, the defendant's conviction could not stand. The court did state, however, in obiter dictum, that "[u]nder different circumstances, the state might elect to prosecute under the first part of § 53-21, which proscribes the.... creation of situations inimical to the minor's moral or physical welfare.... A defendant need not physically touch a minor in order to violate [the first prong] of § 53-21." (Citation omitted; internal quotation marks omitted.) State v. Schriver, supra, 207 Conn. at 467, 542 A.2d 686. The defendant in this case did not physically touch the victims. The defendant did, however, expose and touch his penis in the presence of these children. By his actions in the children's presence, he created a situation inimical to the children's moral welfare. Such actions are violative of the first prong of § 53-21.

The defendant, citing State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976), places great emphasis on the fact that his actions were both isolated and momentary in nature. In Hauck, the defendant, a high school science teacher, was charged with violating § 53-21 after photographing the victim in nude and seminude poses in exchange for a passing grade in his science course. These photographic sessions occurred repeatedly over the course of the school year. The defendant argues that, unlike in Hauck, his actions were isolated in nature and, therefore, it is not likely that they...