State v. Nathan J.

• Decision Date: 27 February 2007
• Docket Number: No. 26194.,26194.
• Citation: 99 Conn.App. 713,915 A.2d 907
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. NATHAN J.<SMALL><SUP>1</SUP></SMALL>

915 A.2d 907

99 Conn.App. 713

STATE of Connecticut v. NATHAN J.¹

No. 26194.

Appellate Court of Connecticut.

Argued October 25, 2006.

Decided February 27, 2007.

Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Judy Ann Stevens, senior assistant state's attorney, for the appellee (state).

McLACHLAN, LAVINE and WEST, Js.

WEST, J.

The defendant, Nathan J., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21(a)(1).² On appeal, the defendant claims that the trial court improperly instructed the jury that the justification defense of reasonable physical force by a parent for the purpose of maintaining discipline, as provided by General Statutes § 53a-18(1),³ does not apply to the crime of risk of injury to a child. We reverse the judgment of the trial court.

In late December, 2003, the defendant was notified that his eleven year old son, the victim, had pushed a teacher at school. The defendant went to the school and met with that teacher, the principal and the victim. At the end of that meeting, the principal decided that the matter had been resolved. The next day, the victim went to school with a bruise under his right eye. The department of children and families sent a social worker to the school to investigate, and the victim told the social worker that the defendant had punched him in his right eye. The principal telephoned the defendant and asked him to come to the school, but he declined to do so. The victim then went to reside with his mother, who did not live with the defendant.

The state charged the defendant with risk of injury to a child, assault in the third degree in violation of General Statutes § 53a-61(a)(1) and disorderly conduct in violation of General Statutes § 53a-182 (a)(2). At trial, the victim's testimony contradicted his statement to the social worker that the defendant had punched him in his right eye. The victim testified that the defendant was angry and was going to discipline him after learning that he had pushed a teacher at school. According to the victim, the defendant grabbed him by his shirt, and the victim then ducked and scraped his face against a ring on the defendant's finger, resulting in the bruise under his right eye.

After the close of the evidence, the defendant requested that the court instruct the jury on the justification defense of reasonable physical force by a parent for the purpose of maintaining discipline. The court agreed to instruct the jury on that defense as to the charges of assault in the third degree and disorderly conduct, but the court determined that that defense did not apply to the charge of risk of injury to a child. The jury subsequently returned a verdict of not guilty on the charges of assault in the third degree and disorderly conduct, and a verdict of guilty on the charge of risk of injury to a child. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of one year incarceration, execution suspended after ninety days, followed by two years probation. This appeal followed.

The defendant's sole claim on appeal is that the court improperly instructed the jury on the crime of risk of injury to a child. The defendant argues that the court should have instructed the jury that the justification defense of reasonable physical force by a parent for the purpose of maintaining discipline applies to that crime. "Due process requires that a defendant charged with a crime must be afforded the opportunity to establish a defense.... This fundamental constitutional right includes proper jury instructions on the elements of [the defense] so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the [crime charged] was not justified." (Internal quotation marks omitted.) State v. Morgan, 86 Conn.App. 196, 202-203, 860 A.2d 1239 (2004), cert. denied, 273 Conn. 902, 868 A.2d 746 (2005). "When a challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled.... [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) State v. Gaymon, 96 Conn.App. 244, 247, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006).

Examining the plain language of the risk of injury statute, § 53-21(a)(1), and the statute providing for the justification defense of reasonable parental discipline, § 53a-1(1), we can discern no apparent reason to bar the application of § 53a-18(1) to a charge under § 53-21(a)(1). Furthermore, General Statutes § 53a-16 provides that "[i]n any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense." The state points out, however, that our Supreme Court has placed a judicial gloss on the risk of injury statute, and that the trial court in the present case properly instructed the jury on that gloss. "[T]he risk to health prohibited by § 53-21 is limited to blatant physical abuse that endangers a child's physical wellbeing. . . ." (Citation omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 72-73, 644 A.2d 887 (1994). The state argues that that gloss causes the risk of injury statute to prohibit conduct that is logically inconsistent with the defense of reasonable parental discipline. In the state's view, "blatant physical abuse that endangers a child's physical well-being"; (internal quotation marks omitted) id.; is necessarily unreasonable and, therefore, an instruction on reasonable parental discipline does not apply to a charge of risk of injury to a child. We disagree with the state because there is a possibility that conduct charged under the risk of injury statute could be justified under the defense of reasonable parental discipline. We need not determine whether the facts of the present case constitute such a possibility. Instead, the issue before us is whether it is reasonably possible that the court's failure to instruct the jury on the defense of reasonable parental discipline as to the charge of risk of injury to a child may have misled the jury and resulted in injustice.

Two considerations lead us to determine that it is reasonably possible that the jury was misled and that injustice resulted. First, the court did not instruct the jury that conduct constituting "blatant physical abuse that endangers a child's physical well-being"; (internal quotation marks omitted) id.; must involve the use of unreasonable physical force. If the court had instructed the jury that unreasonable physical force was required to prove a violation of the...