State v. MirandaState v. Miranda
- Reporters:
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- Before:
- Landau
Opinion
LANDAU, J.This case returns to us from our Supreme Court.1 On remand, the defendant, Santos Miranda, claims (1) that our Supreme Court has newly created a duty arising under
The following facts and procedural history are necessary for our resolution of the defendant’s claims. In January, 1993, the defendant, who was twenty-one, resided in Meriden with his girlfriend, who was sixteen, and her two children, a boy, two years old, and a girl, four months old (baby). Although the defendant had been living with his girlfriend and her children for almost one year, he was not the biological father of either child. The trial court concluded, however, that the defendant had established a family-like relationship with the two children and their mother because he, along with his girlfriend, assumed responsibility for the care and welfare of the children.
On the night of January 27, 1993, the defendant telephoned 911 seeking emergency medical assistance because the baby was allegedly choking on milk. Steven Cushing, an emergency medical technician who responded, observed that the baby was seriously ill and her condition was not consistent with the reason for the emergency call, i.e., choking on milk. The baby was taken by ambulance to Veterans’ Memorial Hospital in Meriden and from there by Life Star helicopter to Hartford Hospital.
The medical personnel at Hartford Hospital found that the baby had multiple rib and skull fractures, soft tissue bruises in unusual places, a brachial plexus injury, a rectal tear and bilateral subconjunctival nasal *302hemorrhages. None of the injuries was the result of falling, accident, birth, efforts to resuscitate, blocked air passages or choking on milk. The baby had no clotting or platelet system pathology. According to expert medical testimony, the baby was suffering a textbook case of battered child syndrome.
The defendant and his girlfriend were interviewed by investigators from the department of children and families and the Meriden police. The defendant subsequently was arrested* **6 and charged in a twenty-six count information. The information on the six counts of first degree assault charged the defendant with acts of omission, not commission. The trial court found the defendant guilty of assault in the first degree under the second, third, fifth, seventh, eighth and tenth counts,7 and risk of injury to a child under the twenty-sixth count of the information. The trial court found the defendant not guilty as to the remaining counts of the information. The defendant was sentenced to forty years incarceration.
The defendant appealed his conviction to this court. We upheld the defendant’s conviction on the risk of injury to a child charge due to inadequate briefing, but reversed the conviction on the first degree assault charges because we concluded that
I
The defendant’s first claim is that, as applied to him, the newly stated duty requiring any person living in a family-like situation to protect a child from parental abuse or to risk conviction of assault in the first degree in violation of
The Supreme Court concluded that the defendant had a duty under
“ ‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Bouie v. Columbia, supra, 378 U.S. 351, quoting United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954). “ ‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ . . . .” (Citation omitted.) Bouie v. Columbia, supra, 351, quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). “There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Bouie v. Columbia, supra, 352.
*305“ ‘[T]he objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss. . . .’ [P.] Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 541 (1951). See [A.] Amsterdam, Note, 109 U. Pa. L. Rev. 67, 73-74, n.34. If this view is valid in the case of a judicial construction which adds a ‘clarifying gloss’ to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortiori so where the construction unexpectedly broadens a statute which on its face has been definite and precise. Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dall. 386, 390 [1798]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Bouie v. Columbia, supra, 378 U.S. 353-54.
The question we must determine is whether applying our Supreme Court’s construction of
When this case was initially appealed to this court, a panel of three judges were of the opinion that, as a matter of law, a person who is not the biological or legal parent of a child did not owe that child a duty such that the failure to act would sustain a criminal conviction of assault in the first degree in violation of
Likewise, then Justice McDonald,10 in the dissenting portion of his opinion wrote, “Whether one who does not personally inflict the physical injury may be held liable under the assault statute for failure to seek medical treatment and whether a worsening of the victim’s condition because of that failure is required, whether a failure to report continuing abuse may support liability for assault, and whether this doctrine should be restricted to cases of child abuse are questions I believe we must address.” Id., 235 (McDonald, J., concurring in part, dissenting in part).* 11
*307In an emotional dissent, Justice Berdon railed against the horrendous facts presented by this case, but stated, “The rule of law must be upheld even when confronted with alarming allegations of improper acts, indeed allegations of loathsome conduct on the part of the defendant.” Id., 236 (.Berdon, J., dissenting). Justice Berdon agreed with this court’s holding that “
“ ‘Duty is a legal conclusion about relationships between individuals, made after the fact .... The nature of the duty, and the specific persons to whom it is owned, are determined by the circumstances surrounding the conduct of the individual.’ ” Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996). “Although one generally has no legal duty to aid another in peril . . . there are four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another.” State v. Miranda, supra, 245 Conn. 221. Our Supreme Court recognized that the facts of this case as applied to the statute involved was an issue of first impression in this jurisdiction. Id., 220 n.13. Nonetheless, the Supreme Court created a common-law duty to act under the circumstances of this case based on a combination of factors one and four, after reviewing the case law from this jurisdiction and in several other jurisdictions concerning statutes other than
Using the test enunciated in Bouie v. Columbia, supra, 378 U.S. 347, we conclude that no person of *308ordinary intelligence in the defendant’s place would have had fair notice that
II
The defendant’s second claim is that the trial court had insufficient evidence to convict him of assault in the first degree in violation of
*309The following additional facts as set forth in the trial court’s memorandum of decision are relevant to our resolution of this claim. The trial court concluded that some of the injuries the baby sustained were serious physical injuries within the meaning of
The baby also suffered a rectal tear, which was oozing blood at the time of the Hartford Hospital examination and was, therefore, of recent origin. The tear, caused by the forceful insertion of a foreign body into the baby’s rectum, was a serious physical injury because it created a risk of death due to an intestinal perforation and overwhelming infection. The baby suffered a brachial plexus injury that affected the mobility of her left arm, which is a serious physical injury within the meaning of
The trial court also found, on the basis of expert medical testimony, that as a result of these injuries, at the time they were sustained and subsequently, the *310baby would cry and scream. She would have noticeable physical deformities of swelling, bruising and poor mobility. Her ability to take food would be reduced, and at times, the baby’s pain would be so great that she could not be consoled. A person seeing the baby would notice her injuries, reactions and deformities.
The various bruises on the baby’s right cheek and the subconjunctival hemorrhages could be seen by anyone. The defendant knew of the rectal tear, and he observed swellings on the baby’s skull, which he knew should feel hard rather than like jelly. Although he told his girlfriend to take the baby to the hospital, he did nothing to ensure that the baby actually received proper medical attention.
“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. ... State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997).” (Citation omitted; internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 271-72, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999).
“We note that the probative force of the evidence is not diminished because it consists, in whole or in part, *311of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 810, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).
“While the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be [proven] beyond a reasonable doubt. . . . If it is reasonable and logical for the [trier] to conclude that a basic fact or an inferred fact is true, the [trier] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” (Citation omitted; internal quotation marks omitted.) State v. Schiappa, *312248 Conn. 132, 177-78, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).
“Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, [216 Conn. 585, 601, 583 A.2d 896 (1990)]. Finally, in determining whether the [trier of fact] reasonably could have found guilt, we ask if any rational [fact finder] could have done so. State v. Montanez, [219 Conn. 16, 20, 592 A.2d 149 (1991)]; State v. King, supra [601].” State v. Jupin, 26 Conn. App. 331, 337-38, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).
Unlike
In this case, the trial court heard evidence, which demonstrated beyond a reasonable doubt, that the defendant knew the baby had suffered injuries. The bruises on her face and subconjunctival hemorrhages were visible to anyone looking at her. The defendant saw and felt the swollen areas of the baby’s head. Such injuries endangered the baby’s health. Although he knew of those obvious injuries as well as the rectal tear, the defendant made the deliberate choice not to seek medical help for the baby prior to his 911 call or to report her injuries to the authorities.
For these reasons, we conclude that there was sufficient evidence for the trial court to find beyond a reasonable doubt that the defendant had the requisite intent to cause injury to the baby or, by failing to protect her, manifested a reckless disregard of the consequences, and to convict him of risk of injury to a child in violation of
The judgment is affirmed as to the conviction under
In this opinion the other judges concurred.
Notes
See State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998).
Because of our resolution of the defendant’s first claim, it is not necessary to review his double jeopardy claim.
In its brief on remand, the state agrees with the defendant that his assault convictions rested on two omissions, which led to two, not six, discrete injuries. The state consequently asked that we affirm the defendant’s conviction on counts five and ten of the information only, which charge the defendant with recklessly engaging in conduct that created a risk of death to another person resulting in multiple skull fractures and a rectal tear. The defendant was convicted of six counts of assault in the first degree. We reverse the judgment as to all of the counts.
The defendant’s girlfriend was also arrested and charged with having caused the baby’s injuries. Following the defendant’s trial, she pleaded guilty pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The information charges the defendant with first degree assault for three different acts: (1) failing to prevent the baby from living in a situation that created a risk of death and caused her serious physical injury; (2) causing the baby’s injuries by means of a dangerous instrument; and (3) engaging in conduct that created a risk of death to another person and thereby caused the baby serious physical injury that resulted in two distinct injuries, multiple skull fractures and a rectal tear.
Our Supreme Court permitted the defendant to brief his claim of insufficient evidence concerning the risk of injury to a child conviction and any constitutional claims of due process and double jeopardy arising out of its decision. See State v. Miranda, supra, 245 Conn. 231-32 n.25.
“A failure to act when one is under no legal duty to do so, thereby permitting a dangerous condition to exist, is not sufficient to support a conviction for assault in the first degree pursuant to
He is now Chief Justice of our Supreme Court.
In distinguishing People v. Wong, 81 N.Y.2d 600, 619 N.E.2d 377, 601 N.Y.S.2d 440 (1993), Chief Justice McDonald noted that “New York’s penal law defines ‘omission’ as ‘a failure to perform an act as to which a duty of performance is imposed by law.’
A perforated lung could cause hemorrhaging and thus drowning.