State v. Maurice M., No. 29557.

• Decision Date: 28 July 2009
• Docket Number: No. 29557.
• Citation: 116 Conn.App. 1,975 A.2d 90
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. MAURICE M.<SMALL><SUP>1</SUP></SMALL&gt

975 A.2d 90

116 Conn.App. 1

STATE of Connecticut v. MAURICE M.¹

No. 29557.

Appellate Court of Connecticut.

Argued February 3, 2009.

Decided July 28, 2009.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).

BISHOP, ROBINSON and WEST, Js.

BISHOP, J.

The defendant, Maurice M., appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32, following his arrest on a charge of risk of injury to a child in violation of General Statutes § 53-21(a)(1).² On appeal, the defendant claims that § 53-21(a)(1) is unconstitutionally vague as applied to his conduct and that the court (1) applied the incorrect standard for his alleged violation of § 53-21(a), (2) based its finding that he violated his probation on insufficient evidence and (3) abused its discretion by revoking his probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant's claims. On February 4, 2004, the defendant was convicted of assault in the third degree and sentenced to one year incarceration, execution suspended, and three years probation. The standard conditions³ of the defendant's probation included that he refrain from violating "any criminal law of the United States, this state or any other state or territory." On November 26, 2006, the defendant was arrested and charged with risk of injury to a child and, subsequently, with violation of probation.

The record reveals that the following events led to the defendant's arrest on November 26, 2006. At approximately 11 a.m., Joseph Mortari was driving east on Main Street in East Windsor when he saw a pair of brown children's shoes in the roadway near the center divider line. In an attempt to avoid running over the shoes, Mortari maneuvered his vehicle slightly to the right. As he did, he caught a glimpse of something white near the curb and, turning his full attention to it, realized that it was a small child dressed in a diaper climbing from the street to the curb. He slammed on his brakes, stopping his vehicle about three feet from the child. As this transpired, another vehicle traveling in the opposite direction also stopped. Donna Caldon exited that vehicle, driven by her husband, Peter Caldon, and retrieved both shoes from the street and the child, who was then on the curb. Mortari left his vehicle in the street, and he and Donna Caldon conversed momentarily. Mortari retrieved his vehicle, doubled back and met the Caldons in a parking lot. The three attempted to persuade the child to tell them his name or where he lived. The child would not respond. The three then decided to call the police.

Sergeant Michael Hannaford of the East Windsor police department arrived at the scene. After speaking with Mortari and the Caldons, Hannaford started going from house to house on Main Street in an attempt to locate the child's home. Soon after, Hannaford was motioned back to the parking lot by Donna Caldon. Hannaford, after seeing the defendant walking toward Donna Caldon and the child, made his way back to the parking lot. It was ten to fifteen minutes after Hannaford arrived at the scene that the defendant emerged from his home and retrieved the child. After speaking briefly with the defendant, Hannaford directed him to take the child home, so the officer could interview Mortari and the Caldons. After conducting the interview, Hannaford went to the defendant's home. There, he questioned the defendant concerning how the child could have gotten from the home to the street.

The defendant reported that the child was two years old. The defendant told Hannaford that he was the sole caretaker present in the home for the child and the child's eight year old brother. The defendant told him that the child was playing with his eight year old brother in the house while the defendant was in the living room lying on the couch watching television. The living room was adjacent to the kitchen, where the back door was located, from which, the defendant concluded, the child had apparently exited the house. Hannaford observed that there were no child safety devices on the doorknobs on the back door. The defendant told Hannaford that at some point, the older child informed him that the two year old was missing. The defendant reported to Hannaford that he then searched the house for the missing child and eventually made his way outside where he and the child were reunited. During Hannaford's interview with the defendant, the children's grandparents arrived at the home. Soon after, Hannaford arrested the defendant on a charge of having violated § 53-21.

On October 19, 2007, the court, T. Sullivan, J., held a violation of probation hearing. Following the hearing, the court rendered judgment, finding that the defendant had violated his probation. The court further noted that the defendant was aware of the conditions of his probation, having acknowledged them in writing and reviewed them on three separate occasions with his probation officer. The court further found that the beneficial aspects of probation were no longer being served in the defendant's case. Accordingly, the court revoked the defendant's probation and committed him to the custody of the commissioner of correction for the unexecuted portion of his original one year sentence. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that § 53-21(a)(1) is unconstitutionally vague as applied to his conduct. We do not agree.

We begin by setting forth the relevant legal principles. "The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited.... 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.... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.... For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue." (Citations omitted; internal quotation marks omitted.) State v. Stuart, 113 Conn.App. 541, 560-61, 967 A.2d 532 (2009).

"In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on his vagueness claim, [t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. ... The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct.... The test is objectively applied to the actor's conduct and judged by a reasonable person's reading of the statute...." (Citation omitted; internal quotation marks omitted.) Id., at 562, 967 A.2d 532.

If the language of a statute fails to provide definite notice of prohibited conduct, "fair warning can be provided by prior judicial opinions involving the statute"; State v. George, 37 Conn.App. 388, 390, 656 A.2d 232 (1995); or "by an examination of 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." (Internal quotation marks omitted.) State v. Edelman, 64 Conn.App. 480, 485, 780 A.2d 980 (2001), appeal dismissed, 262 Conn. 392, 815 A.2d 104 (2003).

Section 53-21(a) provides in relevant part that "[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered ... shall be guilty of a class C felony ...." "[T]he general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.... Our case law has interpreted § 53-21[ (a)(1) ] as comprising two distinct parts and criminalizing 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.... Thus, the first part of § 53-21 [ (a)(1) ] prohibits the creation of situations detrimental to a child's welfare, while the second part proscribes injurious acts directly perpetrated on the child." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 713, 905 A.2d 24 (2006). Guided by the these well established legal principles, our determinative inquiry on the issue of vagueness is whether a person of ordinary intelligence would comprehend that the defendant's conduct was violative of the situation prong of § 53-21(a)(1).

In the present case, the record reveals that during the events in question, the defendant was solely responsible for the care...