29 Conn. App. 591 | Conn. App. Ct. | 1992
The defendant appeals from the judgment of conviction, rendered after a trial to the court, of two counts of risk of injury to a child in violation of General Statutes § 53-21.
The trial court could reasonably have found the following facts. On Saturday, May 18, 1991, P took her eight year old daughter, C, and her daughter’s eight year old friend, E, to the playground located at Weston Elementary School. While C and E were riding their bicycles in front of the school building, the defendant approached them and requested their help in looking for “his lost puppy.” He asked C and E to go around the right side of the building while he went around the left side. The children followed the defendant’s directions and they all met in a small alcove at the rear of the building.
Once at the rear of the building, the defendant asked C if she knew how to “unzip his zipper.” C, knowing that the defendant meant the zipper on his trousers,, said, “No.” He then asked C to unzip his zipper and the child again replied, “No.” Directing himself to E, the defendant inquired whether she knew how to unzip a zipper. E also knew that the defendant was speaking of the zipper on his trousers and made no reply. The defendant then opened his zipper, exposed his penis, and asked the children to stand guard. Both C and E saw the defendant “pat” or “tap” his penis with a tissue. During this time, the defendant asked the children if anyone was coming. The defendant did not ask the children to touch his penis, nor did he touch the children. C then said that she was going to leave and the defendant asked her to stay. C was afraid to leave because she thought the defendant might grab her or
P, who had previously walked to the back of the building looking for the children, asked a woman to look after them and looked toward where the girls indicated the event had occurred. She saw the defendant walking from the alcove zipping up his pants. She ran after him and questioned his presence and his actions. The defendant falsely identified himself as Joe, a worker at the school, and said, “Leave me alone or I’ll have to hit you.” He then gestured with his open hand towards P’s face, stopping about six inches from it. She stopped following the defendant at this point and reported the episode to the police.
At the time the defendant exposed himself to the children, he was wearing glasses, a plaid shirt, a baseball cap, and had a bandage on his chin. When the defendant was arrested he was wearing glasses, a white T-shirt, a baseball cap, had a bandage on his chin, and was carrying a plaid shirt. At the police station, the defendant removed the bandage from his chin and flushed it down the toilet. The policeman who arrested the defendant observed that there was nothing on the defendant’s chin that would require a bandage. The defendant was convicted of both counts of risk of injury to a child. On appeal, the defendant challenges the constitutionality of General Statutes § 53-21 by asserting that the statute, as applied to him, is vague and lacks specificity.
“In 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. McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979).” (Internal quotation marks omit
Section § 53-21 proscribes two general types of behavior: “(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.” (Citation omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). It is this first prong of the statute that the defendant challenges. Under this prong, it is not necessary, nor have the courts required, that a defendant touch any part
In State v. Tirado, 21 Conn. App. 449, 574 A.2d 252 (1990), we upheld the conviction of a defendant charged with violating the first prong of § 53-21 where the evidence showed that the defendant impaired the morals of a child by kissing the victim, exposing himself to her and requesting her to engage in sexual contact.
The defendant relies on State v. Schriver, supra, to support his claim. The defendant’s reliance is misplaced. The defendant in Schriver was charged with violating the second prong of § 53-21; Erzen is charged with violating the first prong. The defendant in Schriver did not expose himself to the victim, nor did the defendant deliberately touch the private parts of the victim. The court held that because there was no deliberate toucMng of the private parts of a child, wMch is the standard furnished in State v. Pickering, supra, for the violation of the second prong of § 53-21, the defendant’s conviction could not stand. The court did state, however, in obiter dictum, that “[u]nder different circumstances, the state might elect to prosecute under the first part of § 53-21, which proscribes the .... creation of situations inimical to the minor’s moral or physical welfare . . . . A defendant need not physically touch a minor in order to violate [the first prong] of § 53-21.” (Citation omitted; internal quotation marks omitted.) State v. Schriver, supra, 467. The defendant in this case did not physically touch the victims. The defendant did, however, expose and touch his penis in the presence of these children. By his actions in the children’s presence, he created a situation inimical to the children’s moral welfare. Such actions are violative of the first prong of § 53-21.
The defendant, citing State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976), places great emphasis on the fact that his actions were both isolated and momentary in nature. In Hauck, the defendant, a high school science teacher, was charged with violating § 53-21 after photographing the victim in nude and seminude poses in exchange for a passing grade in his science course.
It is axiomatic that we interpret statutes, where possible, to create a consistent body of law. State v. Schriver, supra, 463 n.4; State v. Kozlowski, 199 Conn. 667, 677-78, 509 A.2d 20 (1986); and we “recognize the desirability of reconciling the scope of § 53-21 with similar provisions of the penal code. See General Statutes § 53a-2.” State v. Schriver, supra. Therefore, we look to comparable statutes to determine the reach of the challenged statute. Grayned v. Rockford, 408 U.S. 104, 109-110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The public indecency statute, General Statutes § 53a-186,
In State v. Cruz, 18 Conn. App. 482, 559 A.2d 231 (1989), we affirmed the defendant’s conviction of violating § 53a-186. The defendant, while operating his automobile, cut in front of a woman walking along the road. He asked the woman to come to his car and, when she refused, he pulled alongside her; at that point the victim saw that the defendant’s pants were around his knees and he was masturbating. The act of exposing oneself and masturbating is prohibited. In State v. Vega, 38 Conn. Sup. 313, 314-15, 444 A.2d 927 (1982),
In State v. Sousa, 2 Conn. Cir. Ct. 452, 201 A.2d 664 (1964),
The defendant’s actions, in themselves, lead us to no other conclusion than that he knew what he was doing was prohibited. When he lured the children to the secluded area, he asked them if anyone was coming and asked them to act as guards. After the children ran, the defendant himself fled and, when approached by P., falsely identified himself and threatened her. He also made efforts to change his appearance both at the scene and at the police station after his arrest. These efforts clearly demonstrate the defendant’s knowledge of the criminality of his actions.
The defendant also argues that the statute delegates too much discretion to law enforcement agencies because state’s attorneys could take public indecency cases and prosecute them under the risk of injury statute and thus increase the penalty from six months to ten years. This presents no constitutional problem. United States v. Batchelder, 442 U.S. 115, 127-28, 99
The defendant had fair notice that the conduct in which he engaged would subject him to the penalties of the risk of injury statute and thus has not met his heavy burden of demonstrating that, as applied to his case, General Statutes § 53-21 is unconstitutional.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely
In State v. Tirado, 21 Conn. App. 449, 574 A.2d 252 (1990), the defendant was also accused of masturbating in the presence of the victim. Masturbation is defined in General Statutes § 53a-193 (h), which deals with obscenity as to minors, as “the real or simulated touching, rubbing or otherwise stimulating a person’s own clothed or unclothed genitals . . . .’’In the case before us, the defendant was described as “patting” or “tapping” his penis in front of the children. The trial court could have drawn an inference that the defendant was masturbating in front of the children.
See, e.g., State v. Thomas, 19 Conn. App. 44, 47, 560 A.2d 486 (1989).
General Statutes § 53a-186 provides in pertinent part: “public indecency: CLASS B MISDEMEANOR, (a) A person who performs any of the following acts in a public place is guilty of public indecency . . . (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . .”
This case was decided in the Appellate Session of the Superior Court. While this is not a constitutional court and we are not bound by its decision; State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992); we find that it is illustrative of the type of conduct that is likely to impair the morals of a child. It, too, provides the defendant with fair warning that his actions are violative of the statute.
See footnote 5, supra.
The defendant in State v. Sousa, 2 Conn. Cir. Ct. 452, 201 A.2d 664 (1964), was charged with violating General Statutes (1958 Rev.) § 53-220 entitled Indecent Exposure, the predecessor to § 53a-186.