State v. Robert H.

• Decision Date: 30 July 2002
• Docket Number: (AC 20836)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ROBERT H.

71 Conn. App. 289

802 A.2d 152

STATE OF CONNECTICUT v. ROBERT H.¹

(AC 20836)

Appellate Court of Connecticut.

Argued January 10, 2002.

Officially released July 30, 2002.

Foti, Dranginis and Hennessy, Js. Averum J. Sprecher, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James Dinnan, assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Robert H., appeals from the judgment of conviction, rendered after a trial to the court, of four counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21² and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A).³ On appeal, the defendant claims that (1) § 53-21 is unconstitutionally vague as applied to the facts of his case and thus failed to notify him adequately that his actions were prohibited, (2) the evidence is insufficient to sustain his conviction of risk of injury to a child in violation of § 53-21, (3) the trial court improperly precluded him from testifying on his behalf in violation of his constitutional rights, (4) the court deprived him of his constitutional right to effective assistance of counsel by refusing to permit defense counsel to withdraw during the sentencing phase of the trial and (5) the prosecutor's statements during the sentencing hearing constituted misconduct, thereby depriving the defendant of a fair trial. We reverse in part and affirm in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal. On several occasions during the spring of 1998, the defendant baby-sat for his two granddaughters, the victims, and one grandson, who was not his victim, when the children's mother, who is the defendant's daughter, worked in the evening. The defendant watched the grandchildren at his home and also at the home of their mother.

One evening in May, 1998, while at the defendant's home, the older victim, his ten year old granddaughter, discovered a syringe lying on the dresser in the room where she slept. The defendant entered the victim's room and lay down on her bed. When the victim questioned the defendant about the use of the syringe, he told her to put the syringe on his penis. The victim did not comply.

On another occasion, again occurring in the defendant's home, the older victim was lying face down on her bed reading a book, when the defendant approached her and lay down on top of her. The defendant, who wore clothing, proceeded to gyrate and to move his genitals along the victim's buttocks for some time. In a third incident at the defendant's home, the defendant, after taking a shower, removed his towel and exposed his genitals to his granddaughters.⁴ The elder victim also testified at trial that on several occasions the defendant would "take [her] neck and push it where [the defendant's] private part was."

The defendant was subsequently arrested and charged with four counts of risk of injury to a child and sexual assault in the fourth degree. Following a trial to the court, the defendant was convicted on all counts. This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

I

The defendant claims that the evidence was insufficient to support his conviction for risk of injury to a child in violation of § 53-21 with respect to the charges contained in the first, fourth and fifth counts of the information.⁵ We agree and reverse the defendant's conviction for risk of injury to a child as set forth in counts one, four and five of the information.

The defendant concedes that he did not preserve his claim at trial and therefore seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ "Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.... Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim." (Citations omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 4-5, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).

Our standard of review employed in sufficiency of the evidence claims is well established. "In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... Criminal convictions will be upheld only when the defendant's behavior is clearly forbidden by the statute under which he or she has been prosecuted." (Citations omitted; internal quotation marks omitted.) State v. O'Neil, 65 Conn. App. 145, 152, 782 A.2d 209, cert. granted on other grounds, 258 Conn. 932, 785 A.2d 229 (2001).

On February 2, 2000, the state filed a long form information in five counts. In counts one, four and five, the state alleged that the defendant "did an act likely to impair the health or morals of a child under the age of sixteen years, in violation of Section 53-21 (1) of the Connecticut General Statutes." The state did not specify in the information the acts that formed the basis for each charge, nor did the defendant file a motion for a bill of particulars to clarify the information. The record is clear, however, as to which alleged incidents correspond to the separate counts of the information. Count one is based on the incident in which the defendant told the older victim to put the syringe on his penis. Counts four and five of the information refer to the situation wherein the defendant exposed himself to the two children after emerging from the shower.

The state elected to charge under the second part of § 53-21 (1), which proscribes the creation of circumstances inimical to a minor's morals or health, rather than under the first part of § 53-21 (1). As will be set forth, that charging error requires us to conclude that the evidence was insufficient to support the defendant's conviction here. Had the state charged on the first part of § 53-21 (1), this result would not have been required.

Pursuant to § 53-21, "[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, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child. . . shall be guilty of a class C felony." (Emphasis added.) "The apparent legislative purpose in combining the two parts [of § 53-21] in a single section was to proscribe 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.... The language of § 53-21 does not limit the prohibited conduct to physical touching of the minor's private parts. [W]hile a defendant who deliberately and improperly touches the private parts of a minor is clearly a hard-core violator of § 53-21, such conduct is not necessarily the only type of conduct that is proscribed under the statute." (Citation omitted; internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 159, 778 A.2d 955 (2001).

To sustain a conviction under the first part of § 53-21 (1), which prohibits a person from causing or permitting a child to be placed in a situation likely to endanger the life or limb of such child or to injure the health or impair the morals of such child, "it is not necessary, nor have the courts required, 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. Erzen, 29 Conn. App. 591, 594-95, 617 A.2d 177 (1992). Conversely, to find a defendant guilty of violating the second part of § 53-21 (1), the state must prove beyond a reasonable doubt that the defendant committed an act "directly perpetrated on the person of the minor and injurious to his moral or physical well-being." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see State v. Schriver, 207 Conn. 456, 467, 542 A.2d 686 (1988). Essential to the second part of § 53-21 (1), and the factor distinguishing that part from the first clause of subdivision (1), is that the defendant must have engaged in an act upon the person of the victim. State v. Erzen, supra, 596. "All that is absolutely known is that the irreducible minimum of any prosecution under the second part of § 53-21 is an act directly perpetrated on the person of a minor." State v. Schriver, supra, 467.

The state alleged in counts one, four and five of the information that the defendant had committed "act[s] likely to impair the health or morals of a child under the age of sixteen years, in violation of Section 53-21 (1)," when he told the child to put the syringe on his penis and exposed himself to both girls. The defendant now contends that the evidence was insufficient to sustain his conviction of counts one, four and five because he did not directly perpetrate any acts on the persons of the victims. We agree.

The basis of the...