State v. Payne

• Citation: 40 Conn.App. 1,669 A.2d 582
• Decision Date: 26 December 1995
• Docket Number: No. 12993,12993
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Frederick PAYNE.

Page 582

669 A.2d 582

40 Conn.App. 1

STATE of Connecticut v. Frederick PAYNE.

No. 12993.

Appellate Court of Connecticut.

Argued Sept. 14, 1995.

Decided Dec. 26, 1995.

John W. Watson, Assistant Public Defender, for the appellant (defendant).

Marjorie Allen Dauster, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Elpedio Vitale, Assistant State's Attorney, for the appellee (state).

Before LAVERY, LANDAU and SCHALLER, JJ.

LANDAU, Judge.

The defendant 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 ¹ and of misdemeanor coercion in violation of General Statutes § 53a-192. ² On appeal, the defendant claims that the trial court (1) improperly denied his motions for judgment of acquittal and for judgment notwithstanding the verdict on the charge of risk of injury to a child because § 53-21, as applied to the facts of this case, is unconstitutionally vague and indefinite, (2) incorrectly instructed the jury on the elements of § 53-21, (3) improperly denied his motion for judgment of acquittal in which he claimed that there was insufficient evidence to support the convictions, and (4) abused its discretion in failing to issue a capias compelling the appearance of two defense witnesses and in excluding evidence of prior acts by the defendant offered to establish that the defendant had acted in conformity with them at the time of the crime. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On February 4, 1993, at 5 p.m., the defendant approached three boys, R, age eight, his brother A, age five, and their friend L, age ten, in a dark hallway of a vacant apartment building in a New Haven housing project. Standing in the doorway so as to prevent the boys from leaving, the defendant ordered the boys to urinate into a cup. ³ The defendant told R that he was going to kill him if he did not comply. After all three boys urinated, the defendant gave them a dollar and allowed them to leave. R and A ran home crying and told their mother, T, what had occurred.

T and her sons approached Officers Brian Morris and John Dalton of the New Haven police department in the courtyard of the housing project. T informed the police officers of the incident and described the defendant. Morris and Dalton told T to return home and to wait for their telephone call. In an effort to locate the defendant, Morris and Dalton proceeded to a nearby parole office. Morris and Dalton described the defendant to a parole officer who stated that the defendant was currently in the building attending a drug and alcohol recovery meeting. Morris and Dalton then telephoned T and requested that she and her sons meet them there. At the probation office, R and A positively identified the defendant as the man who had forced them to urinate. The police arrested the defendant and, upon searching him, seized a small plastic bottle of urine they found hidden in the waistband of his underwear.

The jury returned verdicts of guilty of risk of injury, not guilty of felony coercion, and guilty of misdemeanor coercion as a lesser included offense. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal and for judgment notwithstanding the verdict pertaining to the charge of risk of injury to a child pursuant to § 53-21. He argues that the statute, as applied to him, is vague because neither the language of § 53-21 nor controlling judicial gloss afforded him fair warning that conduct posing a risk of injury solely to a child's mental health would violate the statute. We disagree.

"General Statutes § 53-21 proscribes 'two general types of behavior ... "(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.' " ... In both instances, the focus of the statute is on the behavior of the defendant, not on the character, history or experience of the victim. See State v. Pickering, 180 Conn. 54, 63-65, 428 A.2d 322 (1980)." (Citations omitted.) State v. Apostle, 8 Conn.App. 216, 242, 512 A.2d 947 (1986).

Under the first prong, it is not necessary that a defendant touch any part of the victim's body. Rather, the creation of a prohibited situation is sufficient to breach the statute. State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984). Under the second prong, acts that are perpetrated directly on the body of a child are proscribed. State v. Schriver, 207 Conn. 456, 467, 542 A.2d 686 (1988).

The defendant in this case was charged pursuant to the first prong of § 53-21. At the state's request, the trial court instructed the jury that one element of risk of injury was that the defendant "created ... a situation likely to be harmful to the victim's health or morals." The court then defined health as "a state of being hale, sound or whole in body, mind or soul, or well-being." On appeal, the defendant posits that the state's theory of liability based on impairment of mental health is precluded by our Supreme Court's decision in State v. Schriver, supra, 207 Conn. 456, 542 A.2d 686.

In Schriver, the defendant physically grabbed a fully clothed thirteen year old girl around the waist while uttering a sexual remark. Unlike the present case, the state prosecuted the defendant in Schriver under the second prong of § 53-21. The state charged that the defendant committed a prohibited act under either the "health" or "morals" clause of that prong. Id., at 461, 542 A.2d 686. On appeal, the Supreme Court held that the statute was unconstitutionally vague because controlling judicial gloss required the actual touching of a victim's private parts for impairment of morals and instances of blatant physical abuse for injuries to health. Id., at 466, 542 A.2d 686. The court refused to conclude, as the state urged, "that the defendant's conduct was culpable because it created a cognizable risk of mental injury to the victim." Id.; see also State v. Kulmac, 230 Conn. 43, 72-73, 644 A.2d 887 (1994). Schriver, however, left open the question of whether the state could pursue a prosecution based solely on an impairment of mental health under the first prong of the statute. ⁴ State v. Schriver, supra, 207 Conn. at 467, 542 A.2d 686. Schriver, therefore, does not control our decision in this case.

To resolve the defendant's claim that § 53-21 was vague as applied to him, we must decide whether conduct that is likely to impair the mental health of a victim is proscribed under the first prong of § 53-21. Specifically, we must determine whether the defendant was fairly warned that threatening the victims in a dark area of a vacant building in order to compel them to urinate into a cup was such prohibited conduct. State v. Pickering, supra, 180 Conn. at 61, 428 A.2d 322.

"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.... The fair warning principle has firm roots in federal constitutional law.... The United States Supreme Court recently emphasized, however, that the more important aspect of the vagueness doctrine is not actual notice, but ... the requirement that a legislature establish minimal guidelines to govern law enforcement.... 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." (Citations omitted; internal quotation marks omitted.) State v. Schriver, supra, 207 Conn. at 459-60, 542 A.2d 686.

"In order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.... The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties.... Under appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity.... Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards.... 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.) Id., at 460-61, 542 A.2d 686. "A party contesting a statute's unconstitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt." State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S.Ct. 318, 88 L.Ed.2d 301 (1985).

The general purpose of § 53-21 is to protect the well-being of children. See State v. Palangio, 24 Conn.App. 300, 304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). The plain language of the first prong states that "[a]ny person who ... causes ... any child ... to be placed in a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired" will be guilty of risk of injury. The statute does not define the word "health," nor does it indicate whether health refers to physical health or mental health. The statute does, however, distinguish three alternative classes of potential injury: endangering life or limb, likely injury to...