State v. Hector M., 148 Conn. App. 378

Background

Defendant (Hector M.) lived with his daughter Y beginning when she was 13; Y was 15 at time of the principal incident.
Defendant used email personas ("Estephan Elson" and "Elizabeth Elson") to persuade Y she had a "destiny" to be his sexual partner, including instructions about sexual acts.
On December 29, 2009, defendant bought liquor and condoms, gave Y a few sips of alcohol at a hotel/waterpark, photographed her, and then engaged in sexual acts that Y described as rubbing and at least partial penile penetration through her underwear.
Defendant was convicted after a bench trial of multiple counts: two counts sexual assault in the second degree, two counts sexual assault in the third degree, and three counts risk of injury to a child; sentence totaled an effective 26 years (execution partially suspended).
On appeal defendant argued (1) insufficiency of evidence for the sexual assault and risk-of-injury convictions and (2) that § 53-21(a)(1) (risk of injury) is unconstitutionally vague as applied because § 30-86 permits parental provision of alcohol.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for sexual assault convictions (penetration element)	State: Y’s testimony showed the defendant’s penis rubbed between her labia majora and contacted her clitoris, satisfying the statutory penetration requirement.	Defendant: Sexual contact occurred through underwear; penetration requires intrusion into the interior and thus was not proved.	Affirmed: Court held "penetration, however slight," includes penetration of the labia majora and may be satisfied even through intervening clothing given the testimony.
Sufficiency of evidence for risk of injury to a child (providing alcohol)	State: Providing alcohol to a minor as a prelude to sexual assault was an act likely to impair health or morals; actual intoxication not required.	Defendant: Y consumed only a few sips; without proof of impairment the act could not be likely to injure her morals/health.	Affirmed: Court found act prong satisfied; focus is on defendant’s conduct and foreseeable risk, not actual injury or intoxication.
Vagueness challenge to § 53-21(a)(1) as applied (conflict with § 30-86 parental exception)	State: A person of ordinary intelligence would know supplying alcohol to a minor as an antecedent to sexual assault is illegal; § 53-21 applies to conduct that foreseeably could harm a child, and § 30-86 does not immunize this conduct.	Defendant: § 30-86 permits parents to provide alcohol to minors in certain circumstances, so defendant lacked fair notice that his conduct could be criminal under § 53-21.	Affirmed: Court rejected vagueness claim as applied; defendant had adequate notice and § 30-86 is inapplicable to providing alcohol as a prelude to sexual assault.

Key Cases Cited

State v. Merriam, 264 Conn. 617 (discusses penetration of the labia majora as sufficient under sexual intercourse definition)
State v. Albert, 252 Conn. 795 (treats labia as a penetrable genital opening)
State v. Scruggs, 279 Conn. 698 (§ 53-21 applies to conduct, legal or illegal, that foreseeably could injure a child)
State v. March, 39 Conn. App. 267 (upheld risk-of-injury conviction for providing alcohol to a child)
State v. Winot, 294 Conn. 753 (explains vagueness doctrine and standard of review)
State v. Perruccio, 192 Conn. 154 (as-applied vagueness analysis where overlapping statutory permissions affected notice)
State v. Patterson, 131 Conn. App. 65 (elements and proof required under § 53-21 act prong)