State v. Perruccio

• Decision Date: 31 January 1984
• Parties: STATE of Connecticut v. Dennis M. PERRUCCIO.
• Court: Connecticut Supreme Court

Page 632

471 A.2d 632

192 Conn. 154

STATE of Connecticut v. Dennis M. PERRUCCIO.

Supreme Court of Connecticut.

Argued Oct. 12, 1983.

Decided Jan. 31, 1984.

Edward T. Lynch, Jr., New Britain, for appellant (defendant in both cases).

Irving L. Aronson, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (State in both cases).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

The charges in this case stemmed from separate incidents involving the defendant's sexual contact with two females under the age of sixteen. In the first case, the defendant was charged with risk of injury under General Statutes § 53-21 ¹ and sexual assault in the fourth degree under General Statutes § 53a-73a(a)(1)(A) ² resulting from actions involving a thirteen year old female on October 16, 1981. In the second case, the defendant was charged with three counts of risk of injury under § 53-21 resulting from actions involving a fifteen year old female on October 27 and November 3, 1980.

The jury might reasonably have found the following facts: At the time of the incident in the first case, the defendant, Dennis M. Perruccio, was an electronics shop teacher at Ellis Technical School in Danielson. A thirteen year old girl was enrolled in a one week introductory course in the defendant's shop program. On October 16, 1981, the defendant followed this girl into an empty locker room. When the defendant asked her for a good-bye kiss, she kissed him on the cheek. The defendant kissed her, then put his right hand underneath her shirt and felt her left breast, outside of her bra. He then pushed her bra up and felt her breast again. He tried to put his left hand down inside the back of her pants, but she resisted. A few days later, the girl informed her parents of the incident. School officials were notified in mid-November.

In the second case, a fifteen year old girl met the defendant at a dance at Ellis Technical School in the spring of 1980. Although the girl was not a student at Ellis at that time, she enrolled there in the fall of 1980. On October 27, 1980, she remained alone after school with the defendant to make posters. The defendant had previously requested and received permission from the girl's mother allowing her daughter to remain after school. After the defendant told the girl that they had to go out to buy poster materials, they left the school together in the defendant's car and proceeded to the defendant's home in Norwich. When they arrived at the house, the defendant invited the girl into his house. They sat on a couch together, listened to music, and talked while the girl drank a beer. While on the couch, the defendant kissed the girl and touched her breasts under her clothes. The defendant then carried her into the bedroom, undressed her, and had sexual intercourse with her. The girl testified that she did not resist any of the defendant's advances or actions because she was too afraid of what would happen if she tried to stop the defendant.

On November 3, 1980, the defendant again arranged to have the fifteen year old girl stay after school. They again went to the defendant's house and had intercourse. This time, however, both removed their own clothes. After both incidents, the defendant told the girl not to tell anyone because he would get into trouble. She, in fact, did not inform anyone of these incidents until November of 1981 when she gave a statement to the police.

After consolidation of these two cases and a trial by jury, the defendant was found guilty of all charges. ³ The defendant timely appealed in each case, and on January 3, 1983, this court granted the defendant's motion for consolidation of the appeals.

In the first case involving the thirteen year old girl, the issues presented are: (1) whether § 53-21 as applied to the defendant is void for vagueness and thus unconstitutional, and (2) whether §§ 53-21 and 53a-65 et seq. form an unconstitutional statutory pattern and violate the principle of double jeopardy.

The defendant maintains that the application of § 53-21 in this case violates his due process rights since the statute is void for vagueness. He argues that his conduct was not violative of § 53-21 for two reasons: (1) the touching of the breast is not an act prohibited by § 53-21, and (2) even if this court decides that such an act violates § 53-21, the defendant did not have fair warning at the time the incident occurred. We disagree.

This court, in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), recently set out the basic principles to be considered when a statute is attacked as void for vagueness. First, the constitutionality of the challenged statute is to be determined by the statute's applicability to the particular facts at issue. Id., 57, 428 A.2d 322. "[T]hat a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue." Id., 58, 428 A.2d 322. Second, the statute must give fair warning in order to enable a person to know what conduct he must avoid. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Id., 60, 428 A.2d 322, citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Thus, "a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning." Id., 61, 428 A.2d 322. "References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning." Id., 62-63, 428 A.2d 322, citing Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

The conduct of the defendant in sliding his hand under the thirteen year old girl's bra and feeling her breast is the claimed "act likely to impair the ... morals of [a] child" under § 53-21. The defendant argues that there must be a touching of "private parts" for an act to come within the statute and that a breast does not qualify as such a "private part." An examination of § 53-21 reveals that the term "private parts" is not employed; there is nothing in the statute suggesting that such an area of the body need be touched before a violation occurs. Furthermore, we have never held that it is necessary that a defendant touch the "private parts" of a victim in order to commit an offense under the risk of injury statute. Quite to the contrary, we held in State v. Dennis, 150 Conn. 245, 188 A.2d 65 (1963), that the risk of injury statute proscribed two general types of behavior likely to injure physically or impair the morals of a minor under sixteen years of age: "(1) deliberate indifference to, acquiescense 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." Id., 250, 188 A.2d 65. The first of these two categories clearly indicates that it is not necessary to have any touching of any part of the body to violate § 53-21; the creation of a prohibited situation is sufficient.

Although we recognize that a direct "touching" is not a necessary element to a § 53-21 offense, we find in this appeal that the defendant's "touching" of the breast was an act "directly perpetrated on the person of the minor and injurious to his moral ... well-being." State v. Dennis, supra, 250, 188 A.2d 65. Section 53-21 does not specify the "acts" or "situations" deemed "likely to impair the morals of [a] child"; hence, we look to the penal code for guidance since § 53a-2 states that "the provisions of this title shall apply to any offense defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires...." (Emphasis added.) Section 53a-65 provides the definitions applicable to sexual offenses. The code does not adopt the term "private parts" but instead uses the broader term "intimate parts." Under subsection (8) of the statute, "intimate parts" is defined as "the genital area, groin, anus, inner thighs, buttocks or breasts." The legislature chose not to limit illicit sexual acts to the commonly accepted term of "private parts" or genital areas, but to include in such acts the involvement of other parts of the body including the breasts. It is clear from § 53a-2 that this broader definition of "intimate parts" is to apply not only to the sections of the penal code pertaining to sexual offenses but to all sections of the general statutes pertaining to such offenses including § 53-21.

Equally lacking in merit is the defendant's claim that he had no fair warning that breast fondling was a prohibited act. He suggests that § 53-21 is unconstitutionally vague since the list of acts covered under the statute is left "completely open and undefined." We have previously recognized in State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977), that "laws may be general in nature so as to include a wide range of prohibited conduct. The constitution requires no more than a reasonable degree of certainty." Id., 167, 377 A.2d 263, quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877 (1947). Furthermore, the meaning of the words "acts likely to impair the ... morals of a child" have been clarified through several opinions of this court. For example, in State v. Coulombe, 143 Conn. 604, 124 A.2d 518 (1956), the offense involved the touching of the genitals of a nine year old girl. The defendant "put down [her] pants ... put his hands in [her] pants" and "touched her flesh." Id., 605-606, 124 A.2d 518. In a...