State v. March

• Decision Date: 13 November 1995
• Docket Number: No. 13019,13019
• Citation: 664 A.2d 1157,39 Conn.App. 267
• Parties: STATE of Connecticut v. Jason MARCH.
• Court: Connecticut Court of Appeals

Page 1157

664 A.2d 1157

39 Conn.App. 267

STATE of Connecticut v. Jason MARCH.

No. 13019.

Appellate Court of Connecticut.

Argued April 26, 1995.

Decided Sept. 12, 1995.

Certification Denied Nov. 13, 1995.

Donald D. Dakers, Special Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Assistant State's Attorney, with whom were Rosita M. Creamer, Assistant State's Attorney, and, on the brief, James E. Thomas, State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, HEIMAN and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 ¹ and 53a-70, ² and of risk of injury to a child in violation of General Statutes § 53-21. ³ The defendant also appeals from the revocation of his probation from a previous conviction. He claims that the trial court improperly (1) instructed the jury that it could find the defendant guilty of attempt to commit sexual assault in the first degree when the information charged only sexual assault in the first degree, (2) failed to instruct the jury on the statutory definition of specific intent in connection with the crime of attempted sexual assault, (3) failed to instruct the jury on the specific intent element of risk of injury to a child, and (4) revoked the defendant's probation.

The jury could reasonably have found the following facts. On May 9, 1992, the four year old victim lived with her mother in Granby. That evening, the defendant visited the apartment, where the victim's mother also had two other guests. During the three to four hours during which the defendant remained at the apartment, the adults were drinking alcohol.

The victim, who had been put to bed in another room, did not fall asleep. Instead, the victim repeatedly entered the room where the adults were drinking. On one such occasion, the victim asked for something to drink and the defendant handed the victim a cup containing rum and soda. The victim drank the liquid, although she said it tasted funny, and the defendant refilled the cup with the same mixture. The victim drank approximately one half of the contents of the cup.

Later that evening, the defendant volunteered to read the victim a story, and went into her bedroom. After reading a story, the defendant fondled the vaginal and anal areas of the victim and attempted to penetrate her vagina and anus with his finger. The victim's mother heard the victim say "don't touch me" and when the victim's mother entered the bedroom, the victim told her that the defendant had "touched my pee-pee" and tried to touch her "butt" but that she would not let him. The victim's mother asked the three guests to leave, and then called the victim's grandmother, who urged her to contact the police. The police arrived at the apartment the following morning.

I

The defendant first claims that the trial court improperly convicted him of attempt to commit sexual assault in the first degree. The defendant argues that because he was charged by information with sexual assault in the first degree, which has only a general intent element, he was not given proper notice that he could be convicted of attempt to commit sexual assault in the first degree, which has a specific intent element. The defendant claims that this lack of notice of the charges against him violates article first, § 8, of the Connecticut constitution. ⁴ We disagree.

The defendant acknowledges that he failed to preserve this issue for appeal. He asks us to afford review under the constitutional bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁵ Because we agree with the defendant that the record is adequate to review the alleged error, and that his claim is of constitutional magnitude; see State v. Sumner, 178 Conn. 163, 166, 422 A.2d 299 (1979); we turn to consideration of whether the alleged violation clearly exists and deprived the defendant of a fair trial.

Practice Book § 867 ⁶ and General Statutes § 54-60 ⁷ both provide that a criminal defendant can be convicted of either the crime charged in the information or of the attempt to commit that crime. The defendant claims that these provisions failed to provide him with constitutionally adequate notice that he could be convicted of attempt to commit sexual assault in the first degree when he was charged with sexual assault in the first degree. The defendant claims that attempt to commit sexual assault is not a lesser included offense of sexual assault because it requires the additional element of specific intent to commit sexual assault.

The defendant posits that § 867 and § 54-60, both predating the existence of our penal code, reflect the common law rule that attempt to commit a crime is a lesser included offense of any crime charged. Because the legislature abolished common law crimes with the creation of the penal code; State v. Bunkley, 202 Conn. 629, 638, 522 A.2d 795 (1987); and attempt is now statutorily defined by § 53a-49 to require specific intent, ⁸ the defendant points out that attempt to commit sexual assault in the first degree can no longer be considered a lesser included offense of sexual assault in the first degree. Therefore, the defendant asks us to hold that our statute and rule of practice providing notice should no longer be found effective.

We decline to adopt the defendant's reasoning. Neither § 867 nor § 54-60 suggests that an attempt to commit a crime must necessarily be a lesser included offense to the crime. In fact, because both provisions refer separately to lesser included offenses and attempt to commit the charged offense, the defendant's argument that attempt must be a lesser included offense for these provisions to apply is without merit. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32 477 A.2d 988 (1984) ("in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous"); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). ⁹ We hold that § 867 and § 54-60 are constitutionally sufficient to put a criminal defendant on notice that he can be convicted of an attempt to commit the crime charged as well as any lesser included offenses of the crime as charged.

II

The defendant next claims that the trial court improperly failed to instruct the jury on the definition of specific intent as an element of attempt to commit sexual assault in the first degree. The defendant failed to preserve this claim at trial and requests review under the constitutional bypass doctrine of Evans-Golding. ¹⁰ Because the record is adequate for review and the claim is of constitutional magnitude; see State v. Jackson, 34 Conn.App. 599, 605-606, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994); we turn to consideration of whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial.

In order for us to conclude that improper jury instructions have deprived the defendant of a fair trial, we must find that, considering the substance of the charge as a whole, it is reasonably possible that the jury was misled. Id.; see also State v. Walton, 227 Conn. 32, 65-66, 630 A.2d 990 (1993). We do not find that to be true here.

As a general rule, "[w]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error." State v. Jackson, supra, 34 Conn.App. at 607-608, 642 A.2d 738, quoting State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982). This rule has been applied to the omission of the statutory definition of specific intent. See, e.g., State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Jackson, supra, 34 Conn.App. at 608, 642 A.2d 738. Because the word "intent" as used to define an element of attempted sexual assault carries its ordinary meaning, and the trial court clearly instructed the jury that intent must be found to return a verdict of guilty for that offense, ¹¹ the defendant cannot prevail on this claimed error. See State v. Sinclair, supra, 197 Conn. at 581, 500 A.2d 539. We conclude that the alleged constitutional violation did not clearly exist or deprive the defendant of a fair trial.

III

The defendant also claims that the trial court improperly failed to instruct the jury on the specific intent element of risk of injury to a child. We disagree.

This claim of error was not preserved at trial and the defendant seeks review under the constitutional bypass doctrine of Evans-Golding. ¹² We conclude that the record is adequate to review this claim and that it is of constitutional magnitude. See State v. Williamson, 206 Conn. 685, 708-709, 539 A.2d 561 (1988). We proceed to consideration of whether the alleged violation clearly exists and whether it deprived the defendant of a fair trial.

Section 53-21 ¹³ prohibits "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 [or her] moral or physical well-being." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see also State v. George, 37 Conn.App. 388, 391, 656 A.2d 232 (1995). Under the second prong, which is the prong under which the defendant was charged and the jury was instructed, ¹⁴ there is no specific intent requirement. State v. McClary, 207 Conn. 233, 239-40, 541 A.2d 96 (1988). The four elements the jury needed to find to return a verdict of guilty are: (1) the victim was less than sixteen years old; (2) the...