State v. Jones

• Decision Date: 15 December 1992
• Docket Number: No. 11056,11056
• Citation: 29 Conn.App. 683,617 A.2d 918
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Bruce JONES.

Page 918

617 A.2d 918

29 Conn.App. 683

STATE of Connecticut v. Bruce JONES.

No. 11056.

Appellate Court of Connecticut.

Argued Oct. 2, 1992.

Decided Dec. 15, 1992.

Joseph J. Romanello, Deputy Asst. Public Defender, for appellant (defendant).

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., Warren Murray, Asst. State's Atty., and John McKinney, Law Student Intern, for appellee (state).

Before DUPONT, C.J., and LAVERY and FREDERICK A. FREEDMAN, JJ.

LAVERY, Judge.

The defendant appeals from his conviction after a trial to the court, on one count of risk of injury to a child, General Statutes § 53-21. ¹ The defendant claims that § 53-21 is unconstitutionally vague as applied to the facts of this case. We disagree, and affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On August 21, 1991, Shirleen Jones (Jones) and her four year old son Carl were driven to the defendant's home in Norwalk by her boyfriend. The defendant is the child's father and Jones' husband. Jones and the defendant were involved in a divorce and custody suit at the time these events took place. Jones asked her boyfriend to park the car a few blocks from the defendant's house to avoid an encounter between the defendant and her boyfriend. Jones and her son walked to the defendant's house and went inside. The defendant asked her if they could speak about Carl and they went into another room where the defendant allegedly hit Jones in the face and told her she could not leave until he was ready for her to leave. When she went to say goodbye to Carl, the defendant allegedly threw her onto the bed, began choking her, and made threatening remarks. ²

As Jones eventually left the house, the defendant said he would lead her and her boyfriend back to the parkway with his car. When Jones arrived at the car, she said to her boyfriend, "Let's get in the car and let's go." Her boyfriend got in the driver's side, while she got in the passenger's side. The defendant got into his own car, placing Carl in a car seat. The defendant attempted to block the way of Jones and her boyfriend, and then engaged them in high speed pursuit. Eventually, the defendant caught up with Jones and her boyfriend and rammed his vehicle into their's three times. No one was injured.

Norwalk police officer Thomas Rozinski was traveling in a marked car on Connecticut Avenue in Norwalk when he observed the defendant's vehicle strike the red Mazda in which Jones and her boyfriend were riding. The Mazda drove off at a high speed, followed by the defendant. Rozinski stopped the defendant. The defendant emerged from his car and ran toward the police vehicle. The police officer told the defendant to return to his vehicle, but he refused. The officer thought he saw someone waving a pistol inside the defendant's car. He drew a weapon, and advanced towards the vehicle, only to find Carl waving a cap gun. The defendant was very agitated and generally uncooperative. Rozinski placed the defendant under arrest.

Testifying on his own behalf, the defendant admitted having an animated discussion with Jones, but denied hitting or choking her. He claimed that he followed Jones because he wanted to see what her boyfriend looked like, and because he wanted to buy cigarettes. The defendant also denied ramming his car into the Mazda, claiming instead that he hit the other car only once when they were involved in an accident.

At the close of evidence, the court noted that it did not find the defendant's testimony credible in "several respects" and that it was "somewhat inconsistent." The court also found the defendant's attitude at the beginning of the incident to be antagonistic, that the defendant had operated his car in an erratic manner, and that there was at least one impact confirmed by the police officer.

Before reaching the merits of this appeal, we must first settle the question of reviewability. The state maintains that the defendant's constitutional claim of vagueness is unreviewable on appeal because it was not raised in the trial court. The state notes that the defendant did not brief his claim for entitlement to review under our Supreme Court's holding in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). "We conclude that, despite this procedural default, a claim of unconstitutional vagueness falls within the parameters of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny, because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review." State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988), citing State v. McKenna, 11 Conn.App. 122, 125, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987).

"The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement." Id., at 459-60, 525 A.2d 1374. Furthermore, "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Internal quotation marks omitted.) Id., quoting Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). When considering a challenge to a statute on vagueness grounds, we must determine whether the law "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application...." (Internal quotation marks omitted.) State v. Perruccio, 192 Conn. 154, 158-59, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984), quoting State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980). The defendant claims that § 53-21 is so vague in its meaning as to fail to give fair warning. To determine if a statute gives adequate warning as to what activity is prohibited, we may turn to the common law, legal dictionaries, or treatises. Id., 192 Conn. at 158-59, 471 A.2d 632.

Section 53-21 proscribes "two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (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." (Citations omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see also State v. Palangio, 24 Conn.App. 300, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Trujillo, 12 Conn.App. 320, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987); State v. Sullivan, 11 Conn.App. 80, 525 A.2d 1353 (1987); State v. Newton, 8 Conn.App. 528, 513 A.2d 1261 (1986). Under the statute's first category, it is not necessary that the defendant touch any part of the victim's body to violate § 53-21. State v. Palangio, supra, 24 Conn.App. at 303, 588 A.2d 644. "[T]he creation of a prohibited situation is sufficient." State v. Perruccio, supra, 192 Conn. at 159-60, 471 A.2d 632. In the present case, the defendant placed his child in his car, pursued another vehicle at high speed, and then rammed into the other vehicle. The possibilities for injury to the child were myriad.

The defendant claims that the statute does not adequately distinguish between acceptable and unacceptable behavior. On appeal, he still maintains that he had an "accident" with the vehicle in which his wife and her companion were riding. Relying on State v. Schriver, supra, 207 Conn. at 460, 542 A.2d 686, in which our Supreme Court ruled that § 53-21 was void for vagueness as applied to the facts of that case, the defendant argues that § 53-21 "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." (Internal quotation marks omitted.) The factual issue of whether the defendant was involved in an accident, or instead deliberately ran his vehicle...