State v. Leavitt

• Decision Date: 19 August 1986
• Docket Number: No. 3931,3931
• Citation: 513 A.2d 744,8 Conn.App. 517
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John LEAVITT.

Page 744

513 A.2d 744

8 Conn.App. 517

STATE of Connecticut v. John LEAVITT.

No. 3931.

Appellate Court of Connecticut.

Argued Feb. 13, 1986.

Decided Aug. 19, 1986.

Samuel H. Teller, East Hartford, with whom, on brief, was Randy Lynn Cohen, Trumbull, for appellant (defendant).

Bernadette Conway, Sp. Deputy Asst. State's Atty., with whom was Susann E Gill, Deputy Asst. State's Atty., for appellee (state).

Before HULL, SPALLONE and BIELUCH, JJ.

SPALLONE, Judge.

The defendant appeals from his conviction by the court of the crime of disorderly conduct in violation of General Statutes § 53a-182(a)(1). In this appeal, the defendant claims that the court erred (1) in finding that he had the specific intent necessary to commitrime of disorderly conduct, (2) in concluding that he had not proved that his conduct was justified, (3) in admitting the alleged victim's hospital record after portions of it had been deleted, and (4) in denying his motion for a new trial.

The facts are basically not in dispute. The defendant, an East Hartford police officer, is the divorced father of three children. At the time of the incident in question, the defendant's fourteen year old daughter, Jody Leavitt, lived with the defendant, his fiancee, Susan Coloccio, and Coloccio's three children. On the evening of Friday, October 5, 1984, Jody Leavitt went out for the evening with Coloccio's daughter Cheryl, who was approximately two and one-half years older than Jody. Although Jody's normal Friday night curfew was 10 p.m., two hours earlier than that of Cheryl, Susan Coloccio had arranged to extend Jody's curfew on this occasion. There was conflicting testimony regarding whether that extension was for one or two hours.

When Jody and Cheryl had not returned home by 11:35 p.m., the defendant telephoned Jody at the home where she was visiting. An argument took place between them and the conversation ended with Jody hanging up the telephone on the defendant. The testimony was conflicting on the issue of whether or not Jody's act was intentional. The defendant immediately called Jody back and demanded that she return home, stating that if she did not come home he would "come down there and drag [you] out of the house and when you come home I'll kick your ass." Frightened by what her father might do, Jody and Cheryl walked to Jody's mother's house.

When Jody did not return home by midnight, the defendant walked to the home where Jody had been visiting and he was informed that Jody and Cheryl had left for the home of Jody's mother. The defendant returned home and contacted the police to help him look for the two girls since he did not have a car which was operating at the time. Together with another officer, the defendant checked the neighborhood for the two girls, arriving at the home of Jody's mother, Donna Leavitt, at approximately 12:15 a.m. When there was no answer at the door, the two officers rechecked the area and returned to the defendant's home a short time later. The defendant then telephoned Donna Leavitt and asked her to contact him if the two girls arrived at her home. At approximately 2 a.m., the defendant received a telephone call from Donna Leavitt who informed him that the girls were with her, that they would not be permitted to walk home, and that she refused to drive them to the defendant's house. Later, she permitted her son to drive the girls home.

When the two girls arrived home, the defendant directed Jody to sit on the living room couch. The defendant started yelling and swearing at Jody. He testified that he stated, "I don't appreciate her roaming around the streets at two o'clock in the morning. I don't appreciate her telling everybody that I'm going to kick her ass and that I told her that she would be on restriction." Jody gave the defendant dirty looks or what the defendant calls "witch stares." In response to the defendant's hollering and screaming, Jody screamed and hollered that she was afraid to come home.

The defendant then grabbed Jody by the upper arms or shoulders. The defendant started shaking her. As Jody was lying on the couch, the defendant pulled Jody upright by her hair, causing her to bang her head on the arm of the couch. Jody kicked the defendant away. The defendant took hold of Jody and turned her onto her stomach and spanked Jody with the palm of his hand, hitting her on the buttocks approximately four times.

Jody was then sent upstairs to her father's bedroom. Instead of going into her father's bedroom, Jody went into the bedroom she shared with Cheryl and directed the latter to call Donna Leavitt. Jody then began to holler. The defendant, allegedly concerned that Jody would wake up twelve year old Susan Coloccio and seven year old Rachel Leavitt, grabbed Jody in a headlock. He "railroaded" Jody through the hallway to his bedroom. En route to the defendant's bedroom, Jody's body banged into metal cabinets in the upstairs hallway.

Upon waking at 12:30 the next afternoon, Jody called her mother who arrived at the defendant's house at 2:30 p.m. Donna Leavitt observed numerous bruises, cuts, and black and blue marks all over Jody's face, neck, jaw, and shoulders. After Donna Leavitt and Jody walked up the street to a Dunkin Donuts shop, they returned to the defendant's house, got into the car, and drove to the police station and then to Manchester Memorial Hospital. The medical diagnosis from Manchester Memorial Hospital stated "multiple contusion[s] of [the] head." Jody filed a formal complaint against the defendant on October 17, 1985.

After a trial, the court rendered an oral decision. The court found, in pertinent part, that "[a]lthough the Court is completely sympathetic with the defendant in his efforts to control his wayward daughter, it is with a great deal of regret that the court must find that the defendant is guilty as charged. His extreme physical abuse of a daughter on this particular night, as the state's attorney has claimed, went over the line. If he could have restrained himself and held back on the physical abuse, it would have been a different story. I know that the finding of guilty in this case will probably cause the defendant's former wife ... for want of a better word, happiness. It is unfortunate that people who get divorced don't know how to let go from each other and I know that the daughter is being used in this case as a weapon but the court has no alternative because its finding is based on the physical evidence before it and I find that the hospital record itself is most indicative of the fact that the defendant used more force than was necessary. So, I find the defendant guilty of Disorderly Conduct."

The defendant's first two claims of error, which are closely related, are (1) that the court erred in denying his motion for acquittal and in subsequently convicting him when the state had not proved each element of the crime charged beyond a reasonable doubt, and (2) that the court erred in concluding that the state had disproved the defendant's claim of justification. We disagree.

Under General Statutes § 53a-182(a)(1) ¹ "[a] person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he ... [e]ngages in fighting or in violent, tumultuous or threatening behavior...." General Statutes § 53a-18 provides that "[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: (1) A parent, guardian, teacher or other person entrusted with the care and supervision of a minor ... may use reasonable physical force upon such minor ... when and to the extent that he reasonably believes it is necessary to maintain discipline or to promote the welfare of such minor...." This case presents us with the question of determining the interaction between these two statutes.

We start our analysis by noting that justification under § 53a-18 may be invoked where the nature of the conduct proscribed is assaultive. The language in that statute, which provides that "[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the [designated] circumstances," demonstrates the public recognition of the parental right to punish children for their own welfare. (Emphasis added.) It is clear that "[a] parent, being charged with the training and education of his child, has the right to exercise such control and restraint and to adopt such disciplinary measures for the child as will enable him to discharge his parental duty." 59 Am.Jur.2d, Parent and Child § 24. Limits on the right of parents to punish their children do, however, exist. The common law rule and the provisions of § 53a-18(1) require that the use of physical force administered upon a minor child be "reasonable." Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes Annotated (West) § 53a-18; see General Statutes § 53a-18(1). Whether that limit has been reached in any particular case is a factual determination to be made by the trier of fact.

We will assume, arguendo, that the language of § 53a-18 is extensive enough to encompass the crime of disorderly conduct in the manner charged, and that the defendant had a right as a parent to exercise that degree of control or restraint as would reasonably enable him to discharge his parental duties. We conclude, however, that such protections, whether recognized by statute or common law, do not shield the defendant under the circumstances present here.

Pursuant to § 53a-182(a)(1), the crime of disorderly conduct consists of two elements: (1) that the defendant intended to cause, or recklessly created a risk of causing, "inconvenience, annoyance or alarm" and (2) that he did so by engaging "in fighting or in violent, tumultuous or threatening behavior...." While the trial court's...