State v. TuckerState v. Tucker
- Reporters:
- , ,
- Before:
- Spear
Opinion
SPEAR, J.The defendant, Joel Tucker, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of
The jury reasonably could have found the following facts. On September 28, 1995, the defendant went to the home of his eleven year old daughter, the victim, at 150 Whitney Avenue in Bridgeport. The victim had been home from school for several days with tonsillitis and had called the defendant at his mother’s home earlier that day requesting that the defendant bring her some money. After using the bathroom, the defendant entered the living room, where the victim was sitting on the couch. As the victim got up to go into the kitchen, the defendant grabbed her arm, causing her to fall to the floor on her back. The defendant positioned himself on top of the victim, face to face, and tried to force his tongue into her mouth. In between repeated attempts to force his tongue into the victim’s mouth, the defendant held his hand over her mouth to prevent her from screaming. While resisting the defendant, the victim bit her own tongue. When the defendant eventually got off of the victim after several unsuccessful attempts to force his tongue into her mouth, she grabbed a knife *509and told him to leave. The defendant left $20 for the victim on a table and told her, as he departed, to keep the incident between them. The victim immediately called her grandmother, the defendant’s mother, to report the defendant’s behavior. Thereafter, the police, an ambulance and the victim’s relatives arrived at the victim’s home.
The next day, several police officers arrived at the home of the defendant’s mother to look for the defendant. The defendant was hiding in the attic and did not respond to the officers’ repeated calls for him. Eventually, the officers found the defendant hiding behind boxes in the attic. He was arrested at that time.
At the time of his arrest, the defendant was on probation for a conviction of sexual assault. As a result of the incident with the victim, the defendant was charged with violating his probation. The state’s substitute information charged the defendant with one count of risk of injury to a child in violation of § 53-213 and one count of unlawful restraint in the second degree in violation of
*510I
The defendant first claims that § 53-21 is unconstitutionally vague as applied to the facts of this case.5 “Our Supreme Court has recognized that vague statutes fail to give fair warning to persons who may be affected as to what conduct is prohibited. A statute should be reasonably specific and direct so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with judicial gloss.” State v. Ryan, 48 Conn. App. 148, 153, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998). Moreover, although “[t]he constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties”; (internal quotation marks omitted) State v. Erzen, 29 Conn. App. 591, 594, 617 A.2d 177 (1992); “[a] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning.” (Internal quotation marks omitted.) Id.
Our Supreme Court has described the principle of fair warning as a “principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. ... [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.” (Internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). “Lack of precision, *511however, is not, in or of itself, offensive to the requirement of due process.” (Internal quotation marks omitted.) Seals v. Hickey, 186 Conn. 337, 344, 441 A.2d 604 (1982). “Ambiguity is, unfortunately, a common statutory ailment. A degree of vagueness is endemic in many statutes. ... If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Proto, 203 Conn. 682, 698-99, 526 A.2d 1297 (1987).6
“A determination of fair warning is ascertained in several ways. We review prior case law to determine whether the defendant had fair warning that his acts violated § 53-21 [and we] . . . also 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.” State v. Erzen, supra, 29 Conn. App. 594. Because prior case law that “delineate[s] a statute’s reach can constitute sufficient notice of the acts prohibited to render the statute constitutional as applied to the particular facts of a case”; State v. Pickering, supra, 180 Conn. 63; we conclude that prior case law on this issue, in conjunction with the exercise of common sense, constituted fair warning to the defendant that his actions were in violation of § 53-21.
*512Our Supreme Court previously reviewed the legislative history of § 53-21 and concluded that the statute was intended “to proscribe two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (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 against this background that we now analyze the defendant’s vague as applied challenge to § 53-21.
The defendant specifically argues that the language of § 53-21 stating that “any act likely to impair the health or morals of any such child” is unconstitutionally vague as applied to the facts of this case because this language did not give him fair warning that his conduct toward the victim was proscribed under the statute.
With respect to the morals provisions in the second prong of
Our Supreme Court addressed a vague as applied challenge to the morals provisions in the second prong of
The defendant misconceives the Pickering standard, as evidenced by his argument that “[i]f Pickering is the standard by which to test whether one has violated the second prong of
The defendant specifically relies on State v. Schriver, supra, 207 Conn. 463-64, for the proposition that he did not have fair warning that his conduct violated
*515Having considered the defendant’s conduct here within the context of prior case law on this issue, we conclude that the defendant had fair warning that his actions toward the victim violated the second prong of
II
The defendant next claims in his brief that the evidence presented at trial was insufficient to sustain the jury’s verdict. Specifically, the defendant maintains that because the trial court’s instructions to the jury defined the term act as it applied to both the health8 and morals provisions of
It is well established that when we “review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994) [cert. denied, 232 Conn. 903, 653 A.2d 192 (1995)]. 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 jury reasonably could have concluded that the cumulative force of the evidence *516established guilt beyond a reasonable doubt. . . . State v. Sivri, supra, 126, quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993) . . . .” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 760, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).
The defendant argues that with respect to the morals provisions of the second prong of
It does not strain standard notions of credulity that a jury might reasonably infer from the factual scenario in this case that the defendant’s actions were done in a sexual and indecent manner. Moreover, we have already stated that Pickering does not stand for the proposition that a violation of the second prong of
Accordingly, in light of those facts and the exercise of common sense, we conclude that the trial court properly instructed the jury in this case. Furthermore, there was sufficient evidence presented from which the jury reasonably could have inferred that the defendant’s actions constituted conduct of a sexual and indecent nature. This claim, therefore, is without merit.
*517Because we have concluded that the defendant’s first two claims are without merit, we need not address his final claim.
The judgments are affirmed.
In this opinion the other judges concurred.
Notes
On October 1, 1995, Public Acts 1995, No. 95-142, § 1, amended
The defendant did not cite any constitutional provisions in his brief. We assume from the cases that he does cite, however, that his challenge is based on an alleged violation of article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution.
See footnote 1.
The state’s substitute information misstated the statutory language of
The defendant maintains and the state concedes that this claim, which was not raised in the trial court, is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), “because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). We will therefore review this claim.
The void for vagueness doctrine generally embodies the two principles of fair warning and a guarantee against standardless law enforcement. State v. Schriver, 207 Conn. 456, 459-60, 542 A.2d 686 (1988); see Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). The latter principle is relevant only w‘hen a statute is challenged as being unconstitutional on its face. State v. George, 37 Conn. App. 388, 390 n.2, 656 A.2d 232 (1995); see State v. Pickering, supra, 180 Conn. 57-58. Because the defendant’s claim here is that
We are further persuaded that the defendant was aware of the criminal nature of his conduct by the fact that he not only hid in his mother’s attic when police officers arrived at her home looking for him, but he also remained hidden despite the officers’ repeated calls for him.
The trial court instructed the jury that the term act within the context of the health provisions of