State v. Winot

• Decision Date: 16 May 2006
• Docket Number: No. 25186.,25186.
• Citation: 96 Conn.App. 332,897 A.2d 115
• Parties: STATE of Connecticut v. Gregory B. WINOT.
• Court: Connecticut Court of Appeals

897 A.2d 115

96 Conn.App. 332

STATE of Connecticut v. Gregory B. WINOT.

No. 25186.

Appellate Court of Connecticut.

Argued February 14, 2006.

Decided May 16, 2006.

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Jon L. Schoenhorn, Hartford, with whom was Jennifer L. Bourn, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

SCHALLER, GRUENDEL and PETERS, Js.

PETERS, J.

This criminal appeal arises out of allegations that the defendant, Gregory B. Winot, forcibly took a twelve year old girl by the arm and attempted to pull her toward his parked vehicle. After a jury trial, the defendant was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94(a),¹ attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-94(a) and 53a-49(a)(2) and risk of injury to a child in violation of General Statutes § 53-21(a)(1).² He has raised a multitude of issues. We agree with his constitutional attacks on two of these convictions, but we affirm his conviction of attempt to commit kidnapping in the second degree. In particular, we hold that the trial court properly admitted into evidence a noose found in the defendant's car and excluded an inconsistent statement by the victim's mother about the date of the incidents in question. The judgment is therefore affirmed in part and reversed in part.

The jury reasonably could have found the following facts. On the evening of July 19, 2002, at approximately 6 p.m., the twelve year old female victim was walking alone on Spruce Street in Manchester when she noticed a green car moving slowly along the opposite side of the street. The defendant, the driver of the car, stopped the car in the middle of the road and lowered the driver's side window. He pointed his finger at the victim and yelled, "I'm going to get you. You're getting in my car." He then got out of the car and walked across Spruce Street toward the victim with his arms stretched in front of him as if he was going to give the victim a bear hug. When he was approximately six feet from the victim, she ran away toward her house on Bissell Street. It took her only a matter of seconds to reach her house, where she told her mother what had transpired. The incident was not reported to the police.

Four days later, on July 23, 2002, at approximately 5 p.m., the victim was again walking home on Spruce Street when she noticed the same green car and driver. The defendant stopped the vehicle and rolled down the window. This time, without saying anything to the victim, he left the car and began walking toward her. She began to walk faster, but the defendant forcibly took her right arm. When she asked him to let go, he refused, yelling, "[n]o, its too wet out here; you're getting in my car today." He tried to pull her toward his car, but she resisted, pulling back in the opposite direction. To get him to release her, the victim then leaned over to bite the defendant, at which point he quickly let go and rushed back to his car. In doing so, the defendant was almost hit by a maroon car. Upon being released, the victim ran home and told her mother what had transpired. The entire incident lasted only a few seconds.

The victim's mother called the police, and the victim gave a signed statement regarding the incidents, which took place on July 19 and 23, 2002. The victim also provided the police with a license plate number.

The police traced the license plate number to the defendant. Upon arriving at his residence that same day, the police observed a turquoise Ford Thunderbird with plates matching the number provided by the victim. Officer David Evans of the Manchester police department asked the defendant whether he had been on Spruce Street around 5 p.m. Although the defendant admitted that he had driven through that area on his way home from work, he initially denied having spoken to anyone. Subsequently, however, he admitted to Sergeant Jeffrey Lampson that he had offered a young woman a ride. The police brought the victim to the defendant's house, where she positively identified him as the man who had approached her on both occasions. The defendant was then arrested, handcuffed and placed in a police cruiser. Thereafter, Officer Evans obtained the defendant's permission to search his car. The subsequent search revealed a rope noose and various debris in the trunk. Only the noose was seized. At the police station, the defendant admitted that on his way home from work, he had offered a young girl a ride home because it was raining, but denied any wrongdoing.

In a three count substitute information, the state charged the defendant with attempt to commit kidnapping in the second degree in violation of §§ 53a-94(a) and 53a-49(a)(2), kidnapping in the second degree in violation of § 53a-94(a) and risk of injury to a child in violation of § 53-21(a)(1). After the jury found the defendant guilty on all three counts, the trial court denied the defendant's motions for a new trial and for a judgment of acquittal. The court sentenced the defendant to eight years imprisonment followed by ten years of special parole.³

In his appeal from this adverse judgment, the defendant challenges the validity of each of his convictions. With respect to the charges of attempt to commit kidnapping in the second degree and kidnapping, he claims that, as applied in the circumstances of this case, § 53a-94 is unconstitutionally vague. The defendant also claims that the court should not have admitted into evidence the noose found in his car but, having done so, improperly precluded him from presenting evidence about a recent suicide attempt, and that the court improperly excluded a statement by the victim's mother. With respect to his conviction of risk of injury to a child, he claims that § 53-21 is unconstitutionally vague, the evidence was insufficient to support his conviction, the state improperly was permitted to alter its theory of prosecution and the court misinstructed the jury.

I

We first address the defendant's claim that he was convicted improperly of having violated our kidnapping statute, § 53a-94(a). His principal claim is that, as applied to his conduct in this case, the statute is unconstitutionally vague. He does not contest the sufficiency of the evidence presented by the state. Instead, he argues that, in light of the minuscule amount of restraint imposed on the victim, § 53a-94(a) failed to put him on fair notice that his conduct was prohibited. We agree.

The constitutional injunction that is commonly referred to as the void for vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. . . . [The 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 United States Supreme Court has emphasized 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. . . . Thus, [i]n 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 . . . and must not impermissibly [delegate] 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. . . . Finally, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness . . . for [i]n most English words and phrases there lurk uncertainties. . . . [T]he statute must contain some core meaning within which the defendant's actions clearly fall. . . . 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. . . . 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.) State v. Ortiz, 83 Conn.App. 142, 157-58, 848 A.2d 1246, cert. denied, 270 Conn. at 915, 853 A.2d 530 (2004).

In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on his vagueness claim, "[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." (Internal quotation marks omitted.) State v. Springmann, 69 Conn.App. 400, 407, 794 A.2d 1071, cert. denied, 260 Conn. at 934, 802 A.2d 89 (2002). "On appeal, a court will indulge in every presumption in favor of a statute's constitutionality. . . . If a penal statute provides fair warning, it will survive a vagueness attack." (Internal quotation marks omitted.) State v. DeJesus, 91 Conn.App. 47, 84, 880 A.2d 910 (2005). "This court must. . . look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding." (Internal quotation marks omitted.) Id., at 84-85, 880 A.2d 910.

With these principles in mind, we turn to the specifics of this case. "A person is guilty of kidnapping in the second degree when he abducts another...