State v. Scruggs

Our adherence to the four factors of informed consent enunciated in Logan avoids these undesirable results. judgment Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court’s judgment.

In opinion this justices other concurred. STATE OF CONNECTICUT v. JUDITH SCRUGGS

(SC 17587) Borden, Palmer, Vertefeuille, Lavery, Sullivan and Js. officially September 5, April Argued released appellant (defendant). Douglas Nash, G. attorney, Dalbec, Jr., senior assistant state’s LeonF. whom were senior assistant state’s Dinnan, James attorney, and, brief, Dearington, on the Michael state’s attorney, appellee (state). for the

Opinion Judith SULLIVAN, defendant, Scruggs, J. The jury trial on one of risk of charge convicted after in violation of General Statutes § to child jury verdict, rendered its the defendant After the (a) (1).1 acquittal. The trial court a motion for judgment filed reasonably that the motion, concluding denied that, by a cluttered and maintaining could have found wilfully had caused residence, unclean placed to be in a son, Scruggs (Daniel), her Daniel likely injure to his mental health. that was situation is appeal2 53-21 (a) (1) § The defendant claims and unconstitutionally applied as to her conduсt vague there improperly concluded that the trial court We evidence to sustain her conviction. was sufficient unconstitutionally is (1) vague conclude that 53-21 (a) § we Accordingly, conduct. applied as to the defendant’s trial court. judgment reverse the reasonably following could have found the parent 2001, single In late the defendant was facts. with her two chil- apartment in a three bedroom living “Any person (a) provides part: who § 53-21 in relevant General Statutes permits any wilfully unlawfully age (1) under the causes or child placed years in such a situation that the life or limb of such sixteen to be likely injured endangered, to be or the child is the health of such child any impaired, be or does act to morals of such child are to any impair guilty . . . shall be of a class the health or morals of such child felony (1) . . . . .” . . of this subsection C for a violation of subdivision alleged that the defendant’s conduct occurred The information in this case 1, 2001, January 2, Although August § and 2002. 53-21 has been between 2002, 02-138; time; Acts that amendment amended since that see Public No. convenience, appeal. refer the current relevant to this For we to is not version of statute. appealed judgment frоm the of the trial court to the The defendant pursuant Appellate appeal Court and we transferred the to this court (c) § and Practice Book 65-1. General Statutes Daniel. Kara was seven- Morris dren, (Kara) Kara worked was twelve. The defendant and Daniel teen jobs a week at two sixty hours approximately —one attended, Daniel of the school that employee a full-time Wal-Mart. Daniel employee at part-time the other as a September relentlessly and, from bullied at school many days. absent on December, 2001, was through occasionally poor frequently hygiene He exhibited bedroom home, slept he in his pants. in his At defecated spear a homemade kept he knives and closet, where of children and department The state protect himself. problems, was aware of Daniel’s families (department) him with the defendant to have working and had been point different in late school. At some placed the defen- inspection an department conducted investigation with its in connection dant’s 27, 2001, depart- On December of Daniel’s situation. early morning file on Daniel. In the ment closed its in his Daniel himsеlf January 2, 2002, hanged hours of into Daniel’s During investigation bedroom closet. Gary Boothroyd and Detective death, Officer Michael Kudla, police department, Pamela Brandi of the Meriden police specialist intervention called a crisis family, Chase, investigator Daniel’s and Ronald assist entered the office, the state medical examiner’s it was apartment. They observed that defendant’s odor. extremely unpleasant cluttered and that it had Thereafter, the state filed a four count information “willfully or (1) in which it that the defendant: charged permitted age child under the unlawfully caused or years placed be in such a situation that of sixteen . . . endangered limb of such a child was the life or that was [by] living a home environment providing in violation of 53-21 unhealthy (a) (1); and unsafe” § permitted a “willfully unlawfully or caused or child (2) placed in such a years under the of sixteen to be age likely such child was to be situation that the health of a home environment injured [by] providing . . . unhealthy (a) in violation of 53-21 § and unsafe” unlawfully permitted or “willfully or caused (3) (1); in years placed of sixteen to be age child under the likely of such child was that the health such a situation provide proper medi- injured [by] failing . . . to be care for such child” violation cal or psychological deprived another (1); (4) “negligently 53-21 (a) § care” in violation of General person proper physical Statutes 53-20. § case, the state’s the defendant filed

At the close of acquittal. The trial court a motion for judgment the first count because the motion as to granted “[t]here any ... to allow a to find as to no evidence [was] in the home environ- charged living of the conditions wilfully permitted caused or ment that the defendant injury to a physical created a risk of a situation that motion, how- court denied the defendant’s [child].” The state then filed counts two four. ever, through as to that the charged information which it a substitute unlawfully permit- caused or “willfully or (1) defendant: years placed of sixteen to be age ted a child under the the health of such child was in such a situation that injured [by] living . . . a home providing to be unhealthy and unsafe” in viola- environment that was “willfully unlawfully caused or (a) (1); (2) tion of 53-21 § years to age a child under the of sixteen permitted health of such in such a situation that the placed be injured pro- . . . [by] failing child was to be care for such proper рsychological vide medical or (1); (3) “negligently of 53-21 (a) § child” violation care” in person proper physical another deprived evidence, At the close of the violation of 53-20. acquittal of judgment renewed her motion for defendant information, and the counts of the remaining as to the the verdict. reserved its decision until after court

703 under the first jury guilty found the defendant only. information The defendant count of the substitute acquit- for of postverdict judgment then filed a motion previously tal. that motion and the deferred Addressing acquittal, for the trial court found judgment motion a support finding there was no evidence to although injury that the defendant’s conduct was to cause jury reasonably could physical health, child’s apart- in the have found that the conditions defendant’s injury to a child’s mental ment were to cause health. The court then denied the motion for judgment this court’s decision in State acquittal, relying Payne, 766, 770, 776, 240 Conn. 695 A.2d 525 (1997), in part grounds, 481, 490, overruled on other A.2d which risk of (2004), held prohibits conduct a situation that statute creates poses a to a risk child’s mental health.

In its memorandum of the motion denying decision acquittal on the the trial judgment count, first court following jury fоund the facts. “The heard testi- mony from several officials who went to the defendant’s January 2002, home on receiving reports after of a they suicide there. Police testified that found the dead body year son, Daniel, the defendant’s twelve old on the floor of a walk-in lying closet his bedroom. The defendant and year her seventeen old daughter, Kara . . . police told the that Daniel had hung himself. police Somewhere the closet near the found body, three long kitchen-type sharp implement knives and a pole affixed to a in a spear-like device, but there was no any objects played evidence that of these role causing the death.

“The evidence, favorably viewed most to sustaining verdict, reasonably would have permitted to find that Daniel lived in a home with a foul and offensive odor. Four of the state’s witnesses who went January there on terms, described the odor in various Boothroyd and testified that ‘a definite’ . . . as follows. ‘permeated throughout the odor ‘a bit of offensive’ ‘very the odor as . . . Brandi described whole home.’ your you . . . head in if . . . stuck noticeable,’ ‘as hamper plus garbage’ dirty and . . . an odor of clothes upon entering although the odor he noticed said that stronger apartment, in the back of the it was even home had a . . . testified that the house. . . . Kudla ‘really especially ‘very as one went odor, bad’ foul’and Although . . . . Chase . . described farther inside. only ‘slightly and said he became offensive’ the odor as premises being and various after in the accustomed to it apartment smelled that the defense witnesses denied required witnesses to believe bad, the was not any minimizing denying its odor or the existence of pungency. apartment witnesses also described

“The state’s Boothroyd apart- messy very and cluttered. said as very ‘extremely messy dirty, cluttered’ and ment was atmosphere.’ He said that ‘it wasn’t a ‘chaotic and had easy place through . . . . had to [Y]ou walk an everywhere you your step and sure [make] went watch stayed your clothing you feet’ because of on everywhere throughout piled on the floors other articles testified that he saw dust accumu- the house. He further top various items. Brandi also said that lated on the through, hard to walk clutter made the piles only path eighteen of debris inch between the kitchen. He said ‍​‌‌‌​‌‌​‌​​​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌‌​​​​​‌‌​​‌​​‌​​‍he could frоm the front door to bedroom the floor surface Daniel’s not even see piled high some as floor, of debris on the because bedroom, into the he When Brandi walked the bed. cracking step clothing and heard items had to path police breaking to clear a had underneath. investigator to for the medical examiner’s the bedroom lay. body Kudla Daniel’s dead walk to the closet where very said home was cluttered. She also testified that the piled throughout that articles were on the floors maneuver or walk without house and that it was hard to items. She said that in the bathroom stepping on those on the had walk on and other articles clothing one to the toilet. Chase also described the house get floor ‘extremely cluttered.’ jury testimony “The could have found this about the state’s apartment cluttered condition of the from the prosecution’s to be during witnesses case-in-chief persuasive. addition, jury photo- In saw credible by parties, introduced into evidence both that graphs, day apartment were taken of the interior of the on photographs of Daniel’s death. The showed that most in apartment furniture, floors were covered with piles debris, plastic bins, plastic and other clothing and other items. The taken garbage bags, [photographs] living room, the bedrooms of the defendant and her two children, and the bathroom show almost no clear floor space, exception most notable being pathway the narrow described some witnesses as leading from the front door. Clothing was strewn layers on the floors of the three bedrooms. Flat surfaces above tabletops, chairs, floor level —such as and other furniture —were also items, covered with often with no any room for example, atop additional items. For board in the ironing iron, room sat an coffee living can cup, Styrofoam cups atop coffee with it, pencil, cellophane tape, socks and other clothing, book, a roll paper, and other items. There was no clear surface in prepare the kitchen to Many eat food. items on the pantry kitchen and counters, table, kitchen and stove had additional items top only inside or on of them. The horizontal surfaces above floor level that were free of debris in the taken photographs of the defendant’s January 2, 2002, on were the three beds belonging to the defendant and her two children. day on the taken the bathroom

“Photographs reported Daniel’s death showed the floor One could completely clothing. covered there to be stepping bathtub or toilet without sink, not walk to the the door The clothes on the floor blocked clothing. adjacent bed- from the bathroom to leading [Kara’s] on the floor Clothing . . . from closed. being room sink doors under the bathroom blocked the cabinet she testified that being Although from closed. [Kara] the clothes on the bathroom floor earlier placed had required day laundry, sort the was not point.” to believe her on this rejected the defendant’s claim The trial court the con- testimony required to establish that expert in the would result ditions “ It found that evidence the mental health of a child. [t]he a in severe distress —so dis- in this case showed child defecating at school that he was bullying over traught frequently school and fearful pants missing in his and showed that he did not bathe at home. The evidence breath, problems probably bad, smelled had bad often, jury pants his at school. The compounded by fouling reasonably that such a child needed could conclude often and clean himself better. Yet the to bathe more him so. discouraged doing of his home from conditions home, at he had no When or the toilet bathing using year door to his seventeen privacy leading because the could not be closed. The could old sister’s bedroom condition of the bathroom— certainly infer that the unsanitary fix- floor, dirty the and clothing covering to using articles in the tub —was a hindrance tures, and this bathroom, encourage or at least would not problems child with severe year hygiene twelve old clean himself there. case. . . . case, a hard this was not close

“Though experi- of human lives, knowledge own their [Jurors’] . provide sense would . . ence, and their common effect of them to assess basis for ample in the defendant’s filthy home environment chaotic Daniel twelve old year state of on mental household everyday knowledge jury could use its .... squalor the clutter and to conclude that common sense in the bath privacy lack of the home and throughout health, light likely to Daniel’s mental harm were state. a determi- emotionаl Such undisputedly fragile his ” juror.’ ‘beyond average ken of was not nation com- layperson with “[a]ny concluded that The court squalor and home that the could conclude mon sense risk emo- created a to Daniel’s environment here living . . . tional health. walk were few where Daniel could places

“There debris. stepping clothing without or [b]athtub [The] no filthy, provided were and the bathroom and toilet smelling himself. He went to school privacy cleaning only child, troubled beset refuge bad. The for this home, closet. Even bullies at school and fearful at was a he felt there, unsafe. messy No law of

“This is not case about a house. frequency which this court is aware regulates prescribes specific prac- vacuuming housekeeping law, protect children however, tices. The does seek beyond messy far .... The evidence here went disorderly living conditions. evidence showed pervasive clutter and odor the throughout extreme unsanitary facilities, bathroom and a child whose home, manifested in obvious emotional distress itself severe expert juiy problems. It did not take for this hygiene likely that the home environment was living to conclude injurе mental, emotional psychological, to and fragile Accordingly, health of this troubled and child.” judg- court denied the defendant’s motions for the trial acquittal in accordance judgment ment of and rendered the verdict. On appeal, defendant claims that: (1) (a) § unconstitutionally applied her (1) vague conduct provides poor because the statute no notice that may be a criminal housekeeping offense; (2) and evidence was insufficient to support the defendant’s injury conviction for risk to child under 53-21 (a) § (1) because, expert testimony, without had no upon basis which to conclude that in the conditions apartment likely her were to cause a mental health injury to a child. We conclude that these claims are inextricably juror ordinary intertwined. If a experi- average known, ence and could not have intelligence expert testimony, without that the conditions in the apartment likely injure defendant’s were the mental child, health of a then the defendant could not have expert testimony known. Moreover, as to whether the apartment injury conditions were to cause to the mental health of a child could not have estab- lished that the defendant knew or should have known likely consequences of those conditions. The injury causal connection between conduct and an foreseeability injury of an are concepts distinct legal require types proof.3 distinct Accordingly, example, expert testimony required combining For if to show that ordinary products cleaning gas, two household created a toxic but there fact, was no evidence that the defendant knew or should have known of that expert testimony injury then the would not establish the was foreseeable. We suggest expert testimony helpful do not on causation is never in risk ipjury example, McClary, 233, 243, 247, cases. For State 207 Conn. testimony (1988), presented expert 541A.2d96 the state both that the victim’s injury shaking required was caused violent and that the force to inflict injuries great hurting was so that the defendant must have known he was Moreover, requirement although (a) (1) the child. there is no under 53-21 specific that the defendant know the harm that would result from his conduct, expert testimony helpful might Padua, be on that issue. See State v. 138, 157, (2005) required prove (state 869 A.2d 192 was not precise physiological ingesting marijuana, expеrt effects on child of but testimony question might helpful). perceive, however, on that be We cannot expert testimony how could establish the defendant should have known the conditions her could cause mental to a child scope (a) (1). and would be within the of 53-21 not reach constitutional ordinarily we do although grounds, resolved on other appeal if an can be claims misleading be it would so in this case because we do testimony presentation expert to that the suggest infirmity cure constitutional potential could a causation to defendant’s statute application conduct. (a) is unconsti- argues (1) defendant that § it as to her conduct because

tutionally applied vague prove to that she had require not the state does knowledge that she had injure Daniel, to or even intent injure were that the conditions in the only had the intent general but that she Daniel, was in conduct a situation that engage creating if injured that, him. further even the argues have She requirement, includes a the statute knowledge statute her is because could not have known that vague she conduct violated the statute. We with disagree defendant’s first but her second claim. claim, agree requires “A . . . forbids or conduct statute [that] of common vague persons intelligence terms so necessarily guess meaning must at its and differ as to process. first application its violates the essential of due . person ordinary . . Laws must give intelligence opportunity prohibited to know what is reasonable may omitted; so that he act accordingly.” (Citations Cavallo, quotation omitted.) internal marks State not 664, 667, (1986). Conn. A.2d 646 “A statute is clearly unequivocally it void for unless vagueness every is in favor unconstitutional, presumption making validity. ... demonstrate that its To [a statute] unconstitutionally applied to [her], vague [defen- . . a rea- beyond therefore must . demonstrate dant] what inadequate sonable doubt had notice of [she] arbitrary prohibited the victim of [she was] . discriminatory . . void for enforcement. [T]he precepts: doctrine two central vagueness embodies 710 to fair of the effect of a

right warning governing statute . . . and the standardless law guarantee against ... If enforcement. of a statute can be meaning fairly ascertained a statute will not be void for vagueness [m]any since statutes will have some inher- ent most vagueness, English phrases words and [i]n . . judicial there lurk uncertainties. . References to opinions statute, law, the common involving legal dictionaries, may necessary or treatises be to ascertain ” a statute’s to determine if it fair meaning gives warning. quotation marks v. (Internal omitted.) Zoning Graff Appeals, Board 277 Conn. 672-73, 894 A.2d 285 (2006).

The defendant concedes that her constitutional claim preserved trial, argues was not at but that it is review- able under v. Golding, 233, 239-40, State 213 Conn. may unpreserved A.2d 823 We review an claim (1989). if: Golding “(1) adequate under the record is to review error; claim of the claim alleged (2) is of constitu- magnitude tional the violation of a fundamental alleging right; (3) alleged clearly constitutional violation clearly deprived trial; exists and the defendant of a fair if subject analysis, to harmless error the state (4) has failed demonstrate harmlessness of the alleged beyond constitutional violation a reasonable doubt.” Id. adequate Because the record is for review and the claim is of constitutional magnitude, defendant’s claim is reviewable.

We first address the defendant’s claim that applied is unconstitutional (a) (1) because it does require not the state to establish that she knew or should havе known her conduct would result injury to a child. Section 53-21 (a) (1) provides in rele- part “[a]ny person wilfully vant who unlaw- (1) fully permits any causes or child under age years placed sixteen to be in such a . . . situation that injured health of such child is to be . . . shall of her support In felony . . . .” C of a class be guilty knowledge contain a does not language that this claim deci- court’s relies on this the defendant requirement, 233, 239-40, McClary, in State sion con- case, In that (1988). A.2d 96 daughter month old his six 53-21 after victed under § violently been having injuries consistent incurred appeal claimed The defendant Id., 234-36. shaken. solely on had relied improperly trial court state the mental testimony to establish expert medical argued he Id., Specifically, 244. by the statute. required causing he was known that not have that he could “such knowl- concluded that Id. We child discomfort. crime of the is not an element or mental state edge trial conviction the For a required guilt. to establish reasonable doubt beyond a proven had to find court act, shook defendant, a volitional only that the no claim in injury.” Id. There was and caused the child rendered requirement intent McClary general that this unconstitutionally vague. the statutе raised, however, claim was That constitutional 80-81, 564 A.2d 330 App. 75, Conn. Torrice, State v. 20 A.2d 794 809, (1989). 213 Conn. 568 denied, cert. (1988), violating was convicted case, In that in which with several incidents 53-21 in connection § year verbally abused the three assaulted and he had Appellate Court, Id., appeal 78-79. On to the old victim. improperly the trial court the defendant claimed that necessary that is ‘judicial “to add the gloss’ had failed unconstitutionally being ‍​‌‌‌​‌‌​‌​​​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌‌​​​​​‌‌​​‌​​‌​​‍the statute from prevent concluded that the Appellate 80. The Court vague.” Id., jury that “it was properly had instructed the trial court for commit guilty to find the defendant permitted not wilfully he acted ‘any act,’ but must find that ting injury victim, to the resulting intended the ‘that he either his occur, would or that or he knew that the demonstrated was of such a character that it conduct 712 ” consequences.’ Id., 81;

a reckless of the see disregard Guitard, App. 531, 543, also State v. 61 Conn. 765 A.2d (applying standard), denied, 30 Torrice cert. 255 Conn. A.2d 32 v. 952, (2001); Cutro, App. 770 State 37 Conn. 539, 657 A.2d 239 Torrice standard 534, (1995) (applying portion Sorabella, to situational cf. State v. 53-21); § 155, 173, (2006) (“the 891 A.2d 897 intent to coupled do some act with a reckless disregard consequences ... of that act is sufficient to [estab quotation a viоlation of the statute” marks [internal lish] Padua, 138, Conn. A.2d omitted]); State “wilful misconduct (2005) (under [1], [a] misconduct, pur which is intentional conduct done knowledge [¿is] and with posefully likely conse quences” [emphasis quotation internal original; marks omitted]). require-

We with the defendant that the intent agree which, face, requires ment of 53-21 on its the (a) (1), § only prove state to that the defendant had the general injure an act intent to commit that was child, unconstitutionally health of a would be as vague applied to otherwise lawful conduct that no reasonable person posed could have known to have such a threat. 35, 48, Cf. v. 826 A.2d 1126 Higgins, State age of victim’s not element of Gen- (2003) (knowledge [8], eral Statutes 53a-54b under which murder of child § capital felony, under of sixteen is age because “[t]he legitimate situation is not one where conduct becomes solely identity unlawful because of the of the [victim]” quotation marks We how- omitted]). conclude, [internal placed by Appel- that the on the statute ever, gloss any late Court in Torrice cures such constitutional infirmity.4 apply argues that this the Torrice We note that the state court should thereby standard, implicitly conceding (a) (1) § that 53-21 wоuld be unconsti placed Appellate gloss

tutional in the of the on the statute absence points Court in that case. The state also out that the trial court instructed present Torrice in accordance with in the case. claim defendant’s must address the we Accordingly, it unconstitutionally because vague that the statute of the line adequate notice her with provide did not in this conduct from unlawful lawful conduct dividing has recognized previously This court context. physi- protect the of 53-21 is to purpose general § “[t]he children from the well-being psychological cal and Payne, State v. of adults.” potentially harmful conduct interpreted law has 240 Conn. 771. “Our case supra, parts and two distinct (1)] comprising 53-21 [(a) § likely to types of behavior criminalizing general two morals of a minor impair or to injure physically indifference years age: deliberate (1) under sixteen of situations inimical in, or the creation to, acquiescence welfare . . . and physical (2) minor’s moral or to the minor directly perpetrated person on the acts . . . injurious physical well-being. to his moral or Thus, part (1)] prohibits the first 53-21 [(a) § welfare, creation of situations detrimentаl child’s injurious directly part proscribes while the second acts internal perpetrated omitted; on the child.” (Citation Padua, supra, State quotation marks omitted.) present portion Conn. 147-48. The matter involves the relating of 53-21 to the creation of situation (a) (1) § a child. injury to result to the mental health of portion (1)], “Under the ‘situation’ [(a) Instead, actual to the child. prove state need not wilfully prove it must that the defendant created a situa- posed a risk to the child’s health or morals. tion that portion . . . The situation of 53-21 encom- [(a) (1)] § passes protection body safety as well as the security and of the environment which the child responsible.” exists, (Cita- and which adult is omitted; quotation marks omitted.) Id., tions internal 148. Payne, supra,

In State v. 776, 240 Conn. this court “health,” determined for the first time that the term as 714 injured” language in the “health is to be

used physical health as 53-21, includes mental well § Schriver, health. Cf. State v. 466-68, 456, 458, 207 Conn. “ ‘likely health as used in to (1988) (term 542 A.2d 686 ” portion morals’ of 53-21 does impair § the health or Payne, In health). not include mental would conduct that engaging was convicted three injure the mental health of a child after he forced into boys expose themselves and to urinate young Payne, State supra, v. 769. The defendant claimed cup. a statutory “neither the nor authoritative language that him notice that risk of judicial sufficient gloss gave injury mental health is included within 53-21 § that because “the Id., . . . .” 776-77. We concluded common definition of health includes meaning legal jurisdictions health, precedents from other mental by health, statute, when undefined recognized have ordinary health,” person a intelli includes mental applied pos to conduct would know that 53-21 gence § Id., mental health. 778. a risk of child’s ing “had fair warn We further concluded that the defendant expose himself for an a child to ing requiring purpose, unlawful he violated 53-21” because § previously young had held that Appellate forcing Court scope within the of the statute. children to undress fell Palangio, State v. Id., App. 300, 24 Conn. 778-79, citing denied, Conn. 591 A.2d 305, 644, 911, 588 A.2d cert. 218 Velez, also State App. 186, 17 Conn. (1991); see denied, 810, cert. 199, (1988), 551 A.2d denied, 906, 3190, A.2d cert. 491 U.S. 109 S. Ct. 105 L. Ed. 2d 698 (1989). has

Payne only is the decision which this court to a conviction under the mental challenge addressed portion on the (a) (1) ground health ordinary person could not know what conduct recently We have considered prohibited by the statute. issue, however, a relаted involving a number of claims between the causal connection namely, whether injury to physical risk of conduct and the defendant’s of experience knowledge a child was within 204, Conn. Smith, In ordinary juror. State inter considered, we 216, 869 A.2d 171 206-207, (2005), necessary to estab testimony was expert whether alia, who was found next of to an infant lish the risk six to seven adult packet containing aluminum foil to an on which the cocaine on a bed doses worth of crack state. We noted that lay defendant in a semiconscious that law reflects a determination legislative state “[o]ur particularly when con dangerous drug, cocaine is a and that numerous statutes by person” sumed a young transport, and the like. prohibited possession, sale, its the harmful Id., 212-13. We further concluded were within the com orally effects of cocaine ingesting juror they had typical of a because knowledge mon have published opinions noted in numerous “been safety the health and the threat highlighted swallows it person who hides cocaine in his mouth or discoveiy. Moreover, . . . attempt in an to evade deadly orally effects of crack potentially ingesting news subject published сocaine have been the quotation internal marks reports.” (Citations omitted; we concluded that omitted.) Id., Accordingly, 214-15. 216. expert testimony required. Id., was not Similarly, Padua, supra, in State v. expert testimony necessary whether

we considered physical injury young, to establish the risk of unsu- pervised in an where the present children marijuana defendants for sale. We noted that packaged “the Connecticut has made the clear determi- legislature marijuana ‍​‌‌‌​‌‌​‌​​​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌‌​​​​​‌‌​​‌​​‌​​‍is a substance from dangerous nation . . . children, especially, protected. which should be method con- Moreover, although most familiar may it, sumption drug smoking be common common sense inform us knowledge, experience and experienced can also be if drug that the effects of the orally.” Id., 154-55. (Citation omitted.) it is ingested shows “[p]opular we noted that television Specifically, depicted experiencing and movies have individuals baked into marijuana eating drug effects of after Additionally, concerning information the oral brownies. marijuana appeared has in the news consumption of We further noted that we Id., and on websites.” 155 n.25. reality that, despite illegality, “blink at the its could not use, many people know of the widespread because of its marijuana, personal of either potential through effects family mem- experience through experience prevalence . . . The bers or friends. unfortunate marijuana coupled with the substantial effort to use, public regarding dangers, all of the its segments educate reality effects of underscores the [con- within the ken of the marijuana] average are suming Id., marks 150-51. juror.” quotation omitted.) (Internal expert testimony was not Thus, we held Padua that necessary injury risk of to the children to establish marijuana, regard- “the detrimental effects of because drug of the method used to introduce the into less body, knowledge average are within the common juror.” Id., 152.

Before the substance of the defendant’s addressing provide adequate claim that does not (a) (1) criminal, we must first notice that her conduct was improperly applied trial court address her claim that the that the defendant subjective determining standard have known that the conditions her should injure Specifically, were Daniel’s mental health. the defendant the trial court’s conclusion challenges frailty the risk physical that Daniel’s and mental made health obvious. We agree to his mental applied the court should have objective determining standard in whether the defen- scope within the notice that her conduct fell dant had (a) (1). §of 53-21 procedural history following to this is relevant the defendant filed a indicated,

claim. As we have acquittal judgment after the state rested motion During arguments motion, the trial its case. inquired of Daniel’s behavior court whether evidence original was relevant to the first two counts responded prosecutor “[i]t does information. The regards . . . .” to the first two counts not matter position that the conditions Rather, it was the state’s injure apartment would defendant’s environment “[a]ny child.”5 in its memorandum of decision

The trial court stated required to find that “neither the nor the court was likely injure living be to that such conditions would any juiy reasonably of could consider health child. colloquy: transcript following The trial contains the was, “The Court: Does 11matter to this case what situation [Daniel’s] terms of the first two counts? following, I’m Your Honor. not “[The Prosecutor]: Okay. argument young “The Court: Your before was for a man of these kinds, conduct, defecating, hygiene— had kind of who this counts, regards It does not matter with to the first two “[The Prosecutor]: my position. is “The Court: Does not matter? right. That’s “[The Prosecutor]: “The So if the child— Court: Any child. “[The Prosecutor]: Any living in kind “The Court: child this of a cluttered situation would array evidence, be a short hand for the entire the entire sum of evidence we’ve heard? my Yes, position. regards that’s to With counts three “[The Prosecutor]: specifically going psychological and four to medical and/or then I think that particular is to Daniel. So, Court: claim is that the “The the state’s condition the house injure basically likely injure the, likely limb, to is a situation to life or which is physical injure health, broadly well-being, or which is construed physical or mental health. health, yes, Or mental Your Honor.” “[The Prosecutor]: precarious about emotional presented

evidence actually in these condi- specific living child state of the were whether the conditions determining tions in however, explain, did not his health.” The court injure representation was not bound its why the state it was theory prosecuting under which the court that the conditions in the living was that mental health posed a risk to the defendant’s representa- had made those Once the state any child. if the that, was entitled to believe tions, the defendant theory proving meet its burden state did not convicted, doubt, she could not be beyond a reasonable sup- have the evidence would of whether regardless Daniel’s mental health was endan- a claim that ported Thus, she particularly fragile. he was because gered any need to raise that there was was not on notice trial. during about that issue doubts H., decision in State Robert In our recent adopted reasoning 1255 we 56, 83, (2005), 866 A.2d cert. Reardon, 681, (1st Cir.), 787 F.2d 693 in Cola v. 2d 398, 107 S. Ct. 93 L. Ed. 351 denied, 930, 479 U.S. any appellate theory to with that “in order for (1986), merely not scrutiny ... it must be shown to be stand but as reference, to an incidental before the due theory that, upon part guilt of a coherent of] [review as trial, can be characterized principal stages cogni in a focused or otherwise presented been having by adopted this rule “as the standard zable sense.” We trial, at whether evidence introduced which to gauge in its by legal argument, on the state but not relied by appellate an court when evaluat properly cognizable H., v. sufficiency of the evidence.” Stаte Robert ing record, we conclude After the trial supra, reviewing 83. statement, clear based its state, by that the its own counts, including of the first two theory prosecution objec on an injury presently issue, at charge the risk of well established that addition, In it is tive standard. pur- [party] do not allow procedure rules of “[o]ur appeal, later, trial and of action at one course sue open now be rejected he should path that a argue permit trial would ... To rule otherwise him. Laro- omitted.) marks quotation (Internal ambuscade.” A.2d 522 394, 402, 876 McDonald, v. bina objective standard apply we Accordingly, (2005). no notice claim that she had the defendant’s addressing fell within the in her the conditions scope (a) (1). of 53-21 that the standard, this we conclude applying

After to the unconstitutionally applied vague statute is to no stat pointed The state has conduct. defendant’s in this opinions court unpublished utes, published reports, newspaper jurisdictions, other state or from public information or other programs television defendant should a conclusion that the support would apartment posed in her known that the conditions have Cf. mental health of a сhild. risk to the an unlawful and n.25 supra, (ordi 273 Conn. 154-55 Padua, State v. decisions, prior judicial from nary juror could know movies, newspapers, statutes, programs, television marijuana likely would oral ingestion websites that supra, Payne, State v. physical child); cause provided defen published opinions (prior 240 Conn. 778 expose children to warning requiring dant with fair Rather, the state 53-21). themselves was violation of § “I know it when I see it” standard. implicitly relies on an S. Ct. Ohio, 184, 197, 378 U.S. Jacobellis J., (stating (Stewart, concurring) L. Ed. 2d 793 (1964) “I know obscenity, it is difficult to define that, although may gener I We that there be it”). recognize it when see may that it be ally accepted norms and housekeeping equal, a clean that, things being all knowledge common dirty and cluttered orderly preferable home is to a and any of condi could be said of number home. same may It well-being. and actions that affect a child’s tions milk example, for knowledge, drinking be common drinks, than a diet of soft reading is healthier constant television preferable exposure books is to constant cars, playing cars are safer than small programs, large bicycle, a computer is safer than and so games riding virtually comparisons, howevеr, on. All of these involve extremely it diffi- conduct, making infinite gradations ordinary person an to know cult, impossible, if not for harmful but lawful potentially where the line between or, indeed, conduct and unlawful conduct lies whether poses at all. Not all conduct that a risk that line exists health of a child is unlawful. physical to the mental or acceptable there an of risk. Rather, range appears The trial court to have the diffi- recognized culty in the line between lawful and unlawful discerning Nevertheless, implic- in this context. the court conduct itly jury reasonably determined that could have concluded that the defendant should have known that unpleasant apart- odor in her the extreme clutter wrong ment created a situation that was well on the of Daniel’s “trou- line,6 particularly light side of that concluded, bled and state of mind.7 We have fragile” ordinary knowledge it within The trial court concluded that was injured juror were to have the mental health of that the conditions child, directly question of the defendant’s knowl and did not address ordinary edge. juror If an could have known of the causal connection child, between the conditions in the and the risk of to a however, necessarily it follows that that causal connection was or should knowledge. have been within the defendant’s poor Specifically, the trial court focused on the fact that Daniel exhibited home, discouraged hygiene and on the conditions of the defendant’s which conclusion, frequent bathing. support In latter court noted prevented being privacy clutter the bathroom door from closed for and was appear find, however, using The court did not hindrance to bathroom. poor hygiene that Daniel’s was the direct result of the cluttered condition evidence, example, of the There was no that the clutter bathroom. prevented bathing regularly using the defendant or Kara from the toilet. Indeed, manifested the court concluded Daniel’s “emotional distress hygiene problems.” Moreover, itself in severe if the court had believed that body odor, defecating pants Daniel’s bad breath and habit of in his were a bathroom, logically court direct result of the cluttered condition beyond prove obligated was state however, that the or should knew defendant that the doubt a reasonable a risk constitute would the conditions known that have any child. Although health of the mental injury aware that have been reasonably could defendant the persuaded we are not optimal, were not conditions the such that risk were severity of the the nature that believed that not have reasonably could acceptable range. the they were within that recognized trial court the Moreover, although department employees that evidence showed the late during apartment the defendant’s inspected had family only days the its file on and had closed 2001, draw the critical it failed to suicide, before Daniel’s safety who had in child only experts inference that the home in the defendant’s conditions knowledge of the concluded apparently had period the relevant during an immedi not so pose as to deplorable they that were *8 suggest We do not mental health.8 to Daniel’s ate threat constituted to take action failure department’s that the apart in the the conditions conclusive evidence that the mental health pose did not a risk ment evidence, however, constitute of a child. It does an pose did not such apartment in the the conditions knowledge be within the risk that it would obvious ordinary person. apartment posed no risk to conditions in the not have found that the could physical health. the defendant’s apartment possible at the time of the conditions It is dirty they department’s at the time were visits were not as cluttered however, case, then that would tend to of Daniel’s suicide. If always only in the that it was was not condition show that the January Indeed, presented little evidence from which the state in on 2002. typical, jury were whereas that those conditions could have concluded they atypical. Never testified that were witnesses for the defendant several favorably state, we theless, construing to the conclude 1he evidence most reasonably had existed have concluded that conditions that the could period alleged comparably messy throughout entire state in a information. substitute jury unavoidably was made

Finally, during aware variety had exhibited a strange trial that Daniel frequently emotionally upset and ulti- behaviors, was mately had There were possible killed himself. several explanations behavior, for Daniel’s state of mind and however, including the relentless that he bullying inherently and his fragile psyche. endured at school if fairly rely Even it is assumed that the state could on prove evidence of Daniel’s suicide to that the conditions in apartment in fact caused to Daniel’s mental health, competent prove that evidence was not to such harm was foreseeable.9 As we have suggested, necessarily actual effects are not foreseeable effects.10 9The trial fact that court stated committed suicide “[t]he [Daniel] concerning (and was relevant evidence the risk to the defendant did [him] object death), introduction of the about but not to evidence was not [his] charged violation, creating itself an element of the offense here. The same maintaining endangered health, and situation that child’s mental would [a] (Emphasis origi have existed even had not committed suicide.” in [Daniel] Thus, nal.) recognized the trial court evidence of Daniel’s suicide only actually determining relevant whether Daniel suffered harm to his Moreover, appears recognized mental health. the court to have that such prejudicial juiy potentially evidence was that it could have led the to that, injured, Daniel’s mental health believe because somehow had been injury must have been the foreseeable result of the conditions in the apartment. 10 application particularly hindsight troubling We to be find this position If context. it is the state’s that the conditions in the defendant’s January 2, 2002,posed a foreseeable risk to the mental health children, then similar conditions around have the state should been subject prosecution indicated, to criminal before now. As we have pointed any published unpublished judicial opinions, state has not newspaper indicating articles or other sources of information that such prosecutions unfair, cruel, potential have occurred. It seems and even both to potential victims, prosecute defendants and defendant on the basis only actually catastrophic of such conditions when a child has suffered some way, prosecute persons harm. Put another the state cannot decline to who maintain such conditions because it believes that the risk to children either is acceptable speculative then, only catastrophic range within an or is when actually оccurs, unacceptable harm use that as evidence that the risk was and foreseeable.

723 this court in which the state relied on The cases under upheld convictions Court have Appellate contrary. See persuade us to do not (1) 53-21 (a) Padua, v. 206; State Conn. Smith, supra, v. 273 State supra, 240 Payne, v. 146-59; State Conn. supra, 273 App. 575, 85 Conn. 768-69; Ritrovato, v. State Conn. grounds, on other cert. 589-90, 296, granted A.2d 858 Smalls, State 905, (2004); 863 A.2d 699 denied, cert. 535, 546-48, A.2d App. Conn. Smith, and 806 In Padua (2003). 837 A.2d Conn. injury was itself a risk of that constituted the conduct to posed risk that it crime, independent of the health 142 Padua, supra, (defendants v. children. See State marijuana within 1500 conspiring of to sell convicted Smith, supra, v. public project); of State housing feet possession narcotics). convicted of (defendant 208 the defen Smalls,11 in Ritrovato and Similarly, Payne, in criminal acts that created dants discrete engaged to the children’s immediate, specific and acute threats Payne, supra, (defendant State v. 769 mental health. See three children under forcing convicted of coercion after Ritrovato, into State v. cup); threat of death to urinate of various supra, (defendant drug 587-88 convicted Smalls, LSD State v. giving child); offenses after to оf murder after supra, ‍​‌‌‌​‌‌​‌​​​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌‌​​​​​‌‌​​‌​​‌​​‍(defendant 536-37 convicted When a shooting presence child). child’s father in he that is engaged knows that is conduct defendant criminalized, sufficiently dangerous to be injure that exposure on that to conduct could is notice present case, child’s mental health. In the state a itself, messy not, that is in and unlaw being concedes 11 directly question of Ritrovato nor Smalls addressed the whether Neither presented that the defendant knew 1he state sufficient evidence to establish a known the risk of mental to child. See State or should have Ritrovato, supra, App. (defendant evidence was 85 Conn. 589-90 claimed gave LSD); he child was State v. insufficient to establish that substance Smalls, supra, App. (defendant was 546-48 claimed evidence insuf victim). present to he child was he shot ficient establish knew when

ful, points objective no to standards for determining point at which poor becomes housekeeping so ordinary person poses should know that it an unac ceptable risk to the mental health of a child.12 are broadly

We mindful that (a) (1) drafted § and was apply any conduct, intended to to illegal or argument court, argued At oral before this the state that household sufficiently squalid justify conditions that are a removal of child from sufficiently squalid support (a) are home a conviction under 53-21 (1). argued present standard, It further conditions case met department and that the had “made mistake” when it its closed file on standard, taking against proposed Daniel without action the defendant. That however, provides guidance potential no more than defendants does the Moreover, jurisdictions statute itself. our review case law from other other reveals that courts have found that conditions much than worse those justify found in the defendant’s did not removal of child from of D.S., App. 29, 31, the home. See In the Interest Ga. 456 S.E.2d 715 wrongfully (1995) (children gas from taken mother when had home no bathing cleaning, unemployed, other means to heat water for mother was paraphernalia home, dirty drug found kitchen was littered “[t]he dishes, liquid rotting hardened soiled kitchen . . . floor food on [was counters], cabinets, there were live and dead in the roaches kitchen refrigerator carpeting the counters and in the . . the in . [and] house strong discharge, was soiled and a odor emanated of animal and . . . there only long in was a dead rat the bathroom that had there that been so Dept. remained”); Doyle Regulatory Services, skull v. & Protective 16 of (Tex. App. 2000) (evidence apart S.W.3d 395 small that one bedroom eight people inopera ment was shared with to ten other and had roaches physical ble oven and was stove insufficient to establish threat to or well-being Dept. M.P., children); of cf. emotional Children’s Services of 794, 799-800, App. (Tenn. 2005) properly (young 173 S.W.3d child parents duty diaper, smelling from removed after child found in of foul hair, odor, drinking spoiled moldy “sippy” cup with matted milk from extremely filthy pornography, evidence showed home was and contained drug paraphernalia, plates apparently molding of uneaten food and used property, wiring condom and where hazardous debris covered entire was exposed, participated Safriet, parents); and child had in sex In acts with re App. 747, 749, 753, (1993) (hydrocephalic, develop 112 N.C. 436 S.E.2d 898 mentally delayed, impaired hearing year “appeared fourteen old child who regularly hair, filthy underwear, body, with [at unwashed unclean school] dirty clothing, smelling” properly and foul removed from mother who had “extrеmely electricity cluttered trailer with no and several windows broken permanent out ... no . . . residence minimal with contact [and] [her home). he after was removed from her child]” to health foreseeably injury could result not, that a possibility that rule We do not out of a child.13 ordinary an squalid could be so that home environment risk poses it a to know that person expected should be testimony in the a The health of child. to the mental no however, there was established, that present case of mice or other apartment rats, in the sign defendant’s gar food or waste, rotting or or vermin, animal human conditions court found that the Moreover, trial bage. a they pose a threat to would were not so bad that only that The evidence showed physical child’s health.14 cluttered and had extremely was con origin.15 We cannot unpleasant odor uncertain notice these condi that the defendant that clude squalid posed injury a risk of they tions were so meaning to health of a child within the the mental we conclude the stat (a) Accordingly, § 53-21 (1). applied to defen unconstitutionally vague is as ute dant’s conduct. and the case is remanded judgment reversed grant

to the trial with direction to the defendant’s court acquittal. for judgment motion opinion justices this concurred. In the other PALMER, joins, BORDEN, J., J., whom concur- major- fully join I with and the well reasoned agree ring. movies, example, illegal go leave to the It is not a residence to year certainly (a) (1) but almost to leave three it is violation go old alone a residence to the movies. 14 may physical result be household conditions that are It disease, injury, child, so are to a such animal bites traumatic ordinary person they pose obviously dangerous that that an should know meaning (a) (1). § a the health a child the of 53-21 risk to mental within question present case, We however. need not decide that the that further careful review of the evidence reveals We note our items, presents, such the consisted of Christmas related as much of clutter toys, decorations, cards, wrapping paper, books, and seasonal knickknacks attempted provide suggesting that had a cheer other items holiday ful children. her

ity opinion. separately, however, I write to emphasize the points. following

When whether determining defendant, the Judith Scruggs, had notice that the apartment conditions her fell scope within the Statutes General 53-21 (a) § (1), the trial court should have applied objective the by standard advocated for the Specifically, state. con- trary to decision, the trial court’s memorandum of which characterized this case as a “hard case, not [but] case,” improperly close and focused the fact that physical frailty Daniel Scruggs’ mental made the risk to his health obvious, mental the defendant’s culpa- bility by should have been gauged reference the effect of the conditions the defendant’s year on the health of any mental twelve old child. This theory standard reflects the state’s liability criminal specifically articulated in response the defendant’s acquittal motion for judgment at the end of the state’s case-in-chief. my

In view, analyzing objective this case under the standard, respect it remains close call with to whether adequate defendant had that her notice conduct susceptible liability. made her to criminal tips What balance in of a favor conclusion that the defendant had inadequate and, notice therefore, (a) (1) unconstitutiоnally vague applied to the defendant’s conduct, is the evidence regarding investigation of department case of children and families (department).

The record department opened reflects had a file on in the Daniel months before his and, suicide only days suicide, before his had conducted a home visit inspected the living conditions there. The department prior closed its file days six to Daniel’s suicide. There also uncontroverted evidence that department’s investigator instructed the defendant transferred until home he “keep Daniel [could be] new to the school.” of death, agency the days Daniel’s

Thus, only before protecting that is dedicated of Connecticut the state had, by its conduct neglect, from abuse and children that to the defendant words, a message sent clear cause for concern significant saw no department the the Indeed, welfare. Daniel’s health and regarding the defendant should that department’s message very in the conditions home from school keep Daniel criminal Connecticut, its through the same state of unreason- arm, created an prosecutorial charged later Although, course, health. of able risk to his mental by a of the is not bound law enforcement arm state depart- prior determination, express implied, notice, a of fair ment, standpoint from reasonably expected legal dis- cannot be to make subject juris- matter agencies’ tinction between the two viewpoint ordinary citizen, it dictions. From the fair, comport adequate notice, not and does not effect, have concern for say, the state to we no for by living conditions, virtue of his Daniel’s health prosecute we will the defendant crimi- say, then to but nally living those same conditions. maintaining . . . for- majority,

As noted statute [that] “[a] persons so requires vague bids or conduct terms necessarily guess must at its intelligence common its first meaning application and differ as to violates the . process. person . . Laws must give essential due ordinary intelligence opportunity reasonable may so he ‍​‌‌‌​‌‌​‌​​​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌‌​​​​​‌‌​​‌​​‌​​‍act prohibited know what is accord- omitted; marks (Citations quotation internal ingly.” Cavallo, 667, 513 A.2d omitted.) State been This standard has not met when (1986). prosecution protection state’s child and criminal arms to different same condi- come conclusions based same time frame. tions department

The state claims that the made a mistake in its living assessment of the effect of Daniel’s conditions on his mental health, and that such a mistake liability. does not absolve the defendant of criminal argument unpersuasive. Regardless This is of whether department by closing investiga- made a mistake its recommending keep tion and that the defendant Daniel change department’s home, it does not the fact that the deprived recommendation the defendant of fair notice susceptible that her conduct would be to criminal liabil- ity (a) (1). § simply, under 53-21 Put in the absence of speak authoritative sources that to the level of housekeeping places the defendant’s conduct out- scope liability, side the of criminal whether it be statute, newspaper reports, public court cases, or some other rely information, the defendant was entitled to on the department’s implicit day conclusion, on the that it was given, acceptable range that her home was within an Accordingly, agree majority of cleanliness. I with the (a) (1) unconstitutionally vague applied to the defendant’s conduct.

THOMASP. WELDYET AL.v. NORTHBROOK

CONDOMINIUM ASSOCIATION,

INC., ET AL.

(SC 17503) Sullivan, J., Borden, Katz, C. Zarella, Palmer and Js.* * listing justices seniority reflects their status on this court as of argument. the date of oral

Case Details

Case Name: State v. Scruggs

Court Name: Supreme Court of Connecticut

Date Published: Sep 5, 2006

Citation: 905 A.2d 24

Docket Number: SC 17587

Court Abbreviation: Conn.