Opinion
No. CR22 46890
January 13, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendant, James A. Livi, was arrested and charged with one count of risk of injury to a minor in violation of General Statutes § 53-21(a)(1) and one count of breach of peace in violation of General Statutes § 53a-181. Pursuant to Practice Book § 41-8(8), the defendant filed a pretrial motion to dismiss the risk of injury count, asserting that General Statutes § 53-21(a)(1), as applied to the facts of this case, is unconstitutionally vague in violation of state and federal due process. The defendant submitted a memorandum to the court in support of his argument. The following is a summary of the incident report contained in the court file.
General Statutes § 53-21(a)(1) provides: "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 the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . ."
General Statutes § 53a-181 provides:
(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person's property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do.
For purposes of this section, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.
(b) Breach of the peace in the second degree is a class B misdemeanor.
Practice Book § 41-8(8) provides: "The following defenses or objection, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . . . (8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid . . ."
On September 25, 2002, in West Haven, near Court Street, the complainant ("C") while on her way to school was approached by an older white male (later identified as the defendant) operating a black vehicle. The white male is alleged to have told C that he really liked her skirt and asked her if she wanted a ride to school. When C told the defendant that she did not want a ride, the defendant is alleged to have continued to ask C if she wanted a ride and said that C's skirt was nice and that it might get ruined while walking to school. C said that she did not know who the white male was and that she became "extremely upset" over the incident. There is no indication in the incident report that the defendant ever exited the vehicle or touched C.
DISCUSSION
In assessing whether a statute passes constitutional muster, courts "proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and [the court will] indulge in every presumption in favor of the statute's constitutionality . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement . . . Thus, [i]n 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." (Citations omitted; internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777, 695 A.2d 525 (1997).
Moreover, courts "determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phases there lurk uncertainties . . . 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. Payne, supra, 240 Conn. 777-78.
As our Appellate Court has held: "[E]xcept for first amendment cases, an appropriate test of vagueness is whether the law as applied to the circumstances of the case creates doubt about the legality of the defendant's conduct." State v. Jason B., 47 Conn. App. 68, 78 (1997), aff'd., 248 Conn. 543, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S.Ct. 406, 145 L.Ed.2d 316 (1999).
Guided by these well established legal principles, the court's determinative inquiry on the issue of vagueness is whether a person of ordinary intelligence would comprehend that this defendant's conduct could be in violation of the first part of General Statutes § 53-21(a)(1).
In the present case, the defendant relies heavily on State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), to support his position. In Schriver, our Supreme Court overturned a conviction, holding that, as applied to an adult stranger who lifted up a thirteen year-old girl and told her he "just wanted to feel her," General Statutes § 53-21 was unconstitutionally vague. The defendant's reliance on Schriver is misplaced. The defendant in Schriver was charged with violating part two of General Statutes § 53-21, the "any act" section. Unlike the defendant in Schriver, the defendant in the present case is charged with violating part one of General Statutes § 53-21, the "such a situation" section.
In State v. Payne, supra, 240 Conn. 766, the court articulated the limitation of Schriver and the difference between the two distinct prohibitions of the risk of injury statute. In Payne, an adult male forced three young boys to urinate in a cup so he could turn it in to his drug program, and then gave each of the boys one dollar. "This court ruled in Schriver that the second part of § 53-21, which prohibits `acts' likely to injure the health or morals of a child, was limited to protecting the bodily integrity of a child . . . By contrast, the first part of § 53-21 prohibits the wilful creation of a `situation' likely to impair the health [or morals] of a child and thus encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible . . . The plain language of the first part of § 53-21 indicates the legislature's understanding that there is a broad class of intentional conduct that can put a child's well-being seriously at risk without any physical contact by the perpetrator." (Citation omitted.) State v. Payne, supra, 240 Conn. 774.
"[T]he terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . This notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent." (Citations omitted; internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980).
Under the first part of General Statutes § 53-21(a)(1), "it is not necessary to have any touching of any part of the body to violate § 53-21; the creation of a prohibited situation is sufficient." State v. Perrucciao, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct 55, 83 L.Ed.2d 6 (1984). Section 53-21(a)(1) does not list the "situations" that are prohibited. See id., 160. Due process does not require that statutes "provide a laundry list of prohibited conduct. [L]aws may be general in nature so as to include a wide range of prohibited conduct. The constitution requires no more than a reasonable degree of certainty." (Internal quotation marks omitted.) State v. Wilchinski, 242 Conn. 211, 224, 700 A.2d 1 (1997).
On its face, § 53-21(a)(1) prohibits a "situation" that endangers the life or limb of the child or is likely to injure the child's health or impair the morals of the child. Thus, "the first part of § 53-21[(a)(1)] distinguish[es] three alternative classes of potential injury: endangering life or limb, likely injury to health, and impairment of morals." (Internal quotation marks omitted.) State v. Payne, supra, 240 Conn. 772.
The phrase "life or limb of such child is endangered" refers to the legislature's intent to protect children from conduct creating a risk of physical injury. State v. Payne, supra, 240 Conn. 772; see, eg., State v. George, 37 Conn. App. 388, 391-92, 656 A.2d 232 (1995) (leaving seventeen-month-old child unattended in apartment created situation risking injury to child's life or limb); State v. Jones, 29 Conn. App. 683, 688-89, 617 A.2d 918 (1992) (engaging in high-speed automobile pursuit and intentional crash with four-year-old child in auto created situation risking child's life or limb).
The phrase "the health of such child is likely to be injured" "encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible." State v. Payne, supra, 240 Conn. 774. Health includes the child's mental health. See id., 772.
The phrase "the morals of such child are likely to be impaired" refers to the legislature's intent to prohibit conduct threatening the morality of children. State v. Payne, supra, 240 Conn. 772; see, e.g., State v. Tyler-Barcomb, 197 Conn. 666, 668-69, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986) (morals likely to be impaired where mother fails to prevent boyfriend's sexual abuse of her twelve-year-old child and where she knowingly had sexual intercourse with boyfriend in presence of child); State v. Erzen, 29 Conn. App. 591, 599, 617 A.2d 177 (1992) (exposing oneself to a child is an act likely to impair the morals of that child).
In State v. Erzen, supra, 29 Conn. App. 591, the Appellate Court rejected the defendant's argument that General Statutes § 53-21(a)(1), as applied to him, was vague and lacked specificity. The court observed that General Statutes § 53-21(a)(1) "does not specify the `situations' deemed likely to impair the morals of a child." Id., 595. In analyzing the defendant's claim, the court looked to prior judicial decisions, other penal statutes and common sense to show that the defendant had fair warning that exposing oneself to a child created a situation that would impair the morals of a minor. Id.
It is clear to this court that there are many ways to create a situation that would violate General Statutes § 53-21. It can be one act or a course of conduct. The plain words of the statute support that conclusion and the numerous Appellate decisions serve as notice to potential violators. In this case, the defendant approached C, made suggestive remarks to her and put C in a situation that caused her extreme upset and fear. A person of ordinary intelligence has adequate notice that this course of conduct offends General Statutes § 53-21(a)(1).
The motion to dismiss is DENIED.
CREMINS, JUDGE.