State v. Thomas W.

• Citation: 974 A.2d 19,115 Conn.App. 467
• Decision Date: 30 June 2009
• Docket Number: No. 29003.,29003.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. THOMAS W.<SMALL><SUP>1</SUP></SMALL>

974 A.2d 19

115 Conn.App. 467

STATE of Connecticut v. THOMAS W.¹

No. 29003.

Appellate Court of Connecticut.

Argued April 13, 2009.

Decided June 30, 2009.

William B. Westcott, special public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Marc G. Ramia, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and LAVINE and HENNESSY, Js.

LAVINE, J.

The defendant, Thomas W., appeals from the judgment of the trial court, rendered after a jury trial, convicting him of one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2),² two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1)³ and one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2003) § 53a-73a (a)(1)(A).⁴ On appeal, the defendant claims that (1) § 53-21(a)(1) is void for vagueness, (2) there was insufficient evidence to convict him of the four counts of which he was convicted and (3) the court made improper remarks to the jury, placing the burden of proof on him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In November or December, 2003, when the victim was six years old, the defendant, who is her great uncle, arrived at the residence that the victim shared with her mother, brother and sister, to have the victim's mother braid his hair. The mother testified that the defendant is her uncle. The victim testified that the defendant visited their residence every once in a while and that she thought that he was her uncle, not her mother's uncle. When the investigating detective initially contacted the defendant regarding the incident, the defendant did not recognize the victim's name.

When the defendant arrived at the victim's residence, the victim's mother was at work, and only the victim and her ten year old brother were present. The children were watching television in either the living room or their mother's bedroom. The victim testified that, while watching cartoons, she heard noises in the kitchen that she could not describe but stated that they were not "pots and pans noises." She looked toward the kitchen and saw the defendant rubbing his penis, with his pants pulled down. The victim stated that she observed him do this for approximately two minutes.

Immediately or shortly afterward, the victim went to the bathroom. She testified that the defendant cracked the bathroom door open and looked inside so that the victim was able to see his face. She stated that he looked at her while she was "using the bathroom."

The victim's mother arrived home while the victim was in the bathroom, or shortly afterward. She braided the defendant's hair, and the defendant spent the night at their home. The victim did not want to sleep alone in the room she shared with her sister, who was at a friend's house, so she slept with her mother in the mother's bed. The victim went to bed wearing her nightclothes. Sometime during the night, the defendant came into the bedroom of the victim's mother and touched the victim's buttocks underneath her nightclothes. The victim testified that she awoke when she felt the defendant touching her buttocks and that when she looked at him, he pretended to be searching for something near the bed. He did not say anything to her. The victim unsuccessfully tried to awaken her mother, who was a heavy sleeper. The victim reported the incident to her mother and one of her mother's relatives sometime thereafter. Further relevant facts will be set forth as necessary.

I

The defendant's first claim is that § 53-21(a)(1) is void for vagueness. The defendant claims that the so-called "situation" prong⁵ of the statute pursuant to which he was convicted is vague as applied to the circumstances of his case and void for vagueness on its face. The defendant failed to raise this claim at trial and seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ We will review his claim under Golding because the record is adequate, and a claim that a statute is unconstitutionally vague implicates the defendant's fundamental due process right to fair warning. See State v. Coleman, 83 Conn.App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005). We conclude, however, that there was no constitutional violation because the statute is not vague as applied to the circumstances of the present case.⁷

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. ... 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." (Citation omitted; internal quotation marks omitted.) State v. Stuart, 113 Conn.App. 541, 560-61, 967 A.2d 532 (2009). "A defendant whose conduct clearly comes within a statute's unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute." State v. Indrisano, 228 Conn. 795, 804, 640 A.2d 986 (1994).

"[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.... [O]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant's acts were prohibited...." (Citation omitted; internal quotation marks omitted.) State v. Stuart, supra, 113 Conn.App. at 562, 967 A.2d 532. "References to judicial opinions involving the statute ... may be necessary to ascertain a statute's meaning to determine if it gives fair warning." (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 710, 905 A.2d 24 (2006).

"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...." (Internal quotation marks omitted.) Id., at 713, 905 A.2d 24. "Under the `situation' portion of § 53-21 [(a)(1)], the state ... must prove that the defendant wilfully created a situation that posed a risk to the child's health or morals." (Internal quotation marks omitted.) Id.

The defendant argues that a fair reading of the statute reasonably would not have alerted him to the fact that masturbating where the six year old victim could observe him and watching her while she was using the bathroom was prohibited conduct. We are not persuaded.

First, we address the kitchen incident.⁸ We conclude that the statutory language and the authoritative judicial gloss afforded the defendant sufficient notice that masturbating in the kitchen where a six-year old could observe him was prohibited by § 53-21(a)(1). The statute prohibits wilfully creating a situation in which the morals of a minor are likely to be impaired. In State v. Cutro, 37 Conn.App. 534, 536, 539-40, 657 A.2d 239 (1995), the defendant created a situation likely to impair the morals of a minor pursuant to § 53-21(a)(1) when a fourteen year old victim and her seventeen year old sister observed him masturbating inside his car in a parking lot of a shopping mall, parked three cars away from theirs. The victim in Cutro merely saw the defendant shaking and rocking back and forth with his mouth open; she did not observe the defendant's genitals and did not know what he was doing. Id., at 536, 657 A.2d 239. In State v. Erzen, 29 Conn.App. 591, 592, 617 A.2d 177 (1992), the defendant approached two children in the street, asked them to help him look for his lost puppy and then exposed himself and tapped or patted his penis.

We are not persuaded by the defendant's attempts to distinguish his case from Erzen and Cutro by arguing that that there was no evidence that his penis was erect or that he ejaculated, that he did not address or "flash" the victim and that he might have been unaware that she saw him masturbate. The statute in question requires only that the defendant wilfully causes or permits a child to be placed in a situation likely to impair his or her morals.

The defendant was not, as he argues, merely touching his penis in a private place. He was not in his home but was in the common area of a home occupied by three children. He pulled his pants down and masturbated where the six year old victim and her ten year old brother only had to look away from the television set to observe him. He also made sounds that caused the victim to look toward the kitchen. On the basis of the statutory language and the case law discussed previously, we conclude that a person of ordinary intelligence would comprehend that masturbating where he or she can be observed by children is prohibited by § 53-21(a)(1).

The defendant next argues that he lacked sufficient notice that...