State v. Palencia ( 2016 )

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STATE OF CONNECTICUT v. JORGE
CARRILLO PALENCIA
(AC 36612)
Gruendel, Alvord and West, Js.
Argued November 17, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Wenzel, J. [motions to disqualify];
Holden, J. [judgment; motion to open and set aside
judgment].)
Richard H. G. Cunningham, for the appellant
(defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were David I. Cohen,
state’s attorney, and Richard J. Colangelo, Jr., senior
assistant state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Jorge Carrillo Palen-
cia, appeals from the judgment of conviction, rendered
after a court trial, of one count of risk of injury to a
child in violation of General Statutes § 53-21 (a) (1).
On appeal, the defendant claims that (1) the evidence
adduced at trial was insufficient to sustain his convic-
tion and (2) the court improperly dismissed his postsen-
tencing motion to open the judgment of conviction.1
We disagree and, accordingly, affirm the judgment of
the trial court.
On the basis of the evidence presented at trial, the
court reasonably could have found the following facts.
The defendant attended a party with his wife, Wendy
Garrido, on the evening of November 10, 2012. At that
time, the defendant was in his late twenties. The victim
was fourteen years old and a friend of the defendant’s
family.2 The defendant consumed alcohol at the party
and danced with the victim. While they were dancing,
a physical altercation ensued between the victim’s
brother and the defendant. The defendant and Garrido
left the party soon thereafter.
Once home, Garrido went to sleep. The defendant,
who was intoxicated, exited his Stamford home and
received a phone call from the victim minutes later. He
then met with the victim, who had been at her sister-
in-law’s home a few blocks away, and transported her
by taxi to a hotel in Norwalk.3 Surveillance photographs
taken at the hotel, which were admitted into evidence
at trial, show the victim and the defendant with their
arms around each other as they checked in, and later
as they walked to their room, at approximately 1 a.m.
on November 11, 2012. That room had only one bed.
Once at the hotel room, the defendant placed a ‘‘do not
disturb’’ sign outside the door.
At approximately 4 a.m. that morning, the victim’s
family contacted the Stamford Police Department
(department) to report that she was missing. Through-
out the day, officers unsuccessfully attempted to con-
tact the defendant, sending text messages and leaving
voice messages on his phone. The officers requested
that the defendant bring the victim to the department.
The defendant did not respond to those queries.
During the afternoon of November 11, 2012, the
defendant and the victim travelled from the Norwalk
hotel to a shopping mall in Trumbull. Surveillance pho-
tographs from a department store, which also were
admitted into evidence, depict the victim with her arms
wrapped around the defendant. While at the shopping
mall, the defendant purchased items of clothing for the
victim, including underwear. After grabbing a bite to
eat, the defendant and the victim took another taxi ride
to a nearby hotel, where they spent the night.
The victim returned to Stamford on November 12,
2012, arriving at her sister-in-law’s home at approxi-
mately 8 p.m. When Officer Jeffrey Hugya of the depart-
ment met with her soon thereafter, he observed a mark
on her chest that ‘‘appeared to be a hickey.’’4 The defen-
dant subsequently was arrested and charged, in docket
number CR-12-0178925, with one count of risk of injury
to a child in violation of § 53-21 (a) (1).
In April, 2013, the department was contacted by offi-
cials at the victim’s school, who, according to Officer
Brian Butler of the department, ‘‘believed that [the vic-
tim] was involved in an inappropriate relationship’’ with
the defendant. They notified the department that the
victim had stated that she would not be returning to
school because she was leaving the country with the
defendant. During their investigation of that complaint,
officers found a handwritten document in the victim’s
notebook that contained a drawing of two hearts around
the message, ‘‘I love you Jorge Alberto Carrillo Palencia
I love you.’’
The officers interviewed the defendant, who was
accompanied by legal counsel, at police headquarters.
When they asked to see his cell phone, the defendant
stated that he did not have it with him, but would furnish
it in the coming days. After that interview concluded,
the defendant deleted numerous photographs of the
victim from his phone. Several days later, the defendant
surrendered the phone to the police and provided con-
sent to search its contents. At that time, he informed
officers that he accidentally had dropped it into a bucket
of water the day after being interviewed by police. He
further stated that the phone remained in the bucket of
water for approximately thirty minutes. When officers
inquired how he knew it had been that length of time,
the defendant smirked.
The officers subsequently conducted a forensic inves-
tigation on the defendant’s phone. Officer Mark Sinise,
a computer forensic examiner with the department,
testified that, although they were able to extract mois-
ture from the phone by placing it in a bag of rice,
the water exposure had destroyed its battery. Upon
replacing the battery, however, the phone powered up
and Sinise was able to examine its contents. Sinise
discovered thirty-three photographs of the victim on
the defendant’s phone. Those photographs, which were
admitted into evidence, depict the victim in various
states of undress. The victim is fully naked in some
photographs, with her breasts and buttocks exposed.
As a result, the defendant was charged, in docket num-
ber CR-13-0180270, with one count of risk of injury to
a child in violation of § 53-21 (a) (1) and one count of
possession of child pornography in the third degree in
violation of General Statutes § 53a-196f (a).
The defendant’s two criminal cases were joined for
a court trial that commenced in the fall of 2013. After
the state rested its case-in-chief, the court granted the
defendant’s motion for a judgment of acquittal on the
possession of child pornography charge. The court rea-
soned that although the photographs found on the
defendant’s phone featured the victim in ‘‘a nude posi-
tion,’’ they did not constitute child pornography under
the law, as her ‘‘pubic areas were not exposed.’’5 When
the trial concluded, the court found the defendant guilty
of risk of injury to a child with respect to the events
of November, 2012. The court acquitted the defendant
of the risk of injury charge with respect to the events
of April, 2013. It thereafter sentenced the defendant to
a term of five years incarceration, execution suspended
after fourteen months, followed by a three year term
of probation. This appeal followed.
I
The defendant claims that the evidence adduced at
trial was insufficient to sustain his conviction of risk
of injury to a child. We disagree.
The standard of review for claims of evidentiary insuf-
ficiency is well established. ‘‘In reviewing a sufficiency
of the evidence claim, we 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 reason-
ably drawn therefrom the [court, as finder of fact] rea-
sonably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . . This court cannot substitute its own judg-
ment for that of the [trial court] if there is sufficient
evidence to support [its] verdict.’’ (Internal quotation
marks omitted.) State v. Allan, 311 Conn. 1, 25, 83 A.3d
326 (2014). In applying that test, ‘‘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 evi-
dence that supports the [court’s] verdict of guilty.’’
(Internal quotation marks omitted.) State v. Stephen J.
R., 309 Conn. 586, 594, 72 A.3d 379 (2013).
‘‘[T]he general purpose of § 53-21 is to protect the
physical and psychological well-being of children from
the potentially harmful conduct of adults.’’ State v.
Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997), over-
ruled in part on other grounds by State v. Romero, 269
Conn. 481, 490, 849 A.2d 760 (2004). A person violates
§ 53-21 (a) (1) when he or she ‘‘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 . . . .’’ That
statutory provision ‘‘prohibits two different types of
behavior: (1) deliberate indifference to, acquiescence
in, or the creation of situations inimical to the [child’s]
. . . welfare . . . and (2) acts directly perpetrated on
the person of the [child] and injurious to his [or her]
moral or physical well-being. . . . Thus, the first part
of § 53-21 . . . prohibits the creation of situations det-
rimental to a child’s welfare, while the second part
proscribes injurious acts directly perpetrated on the
child. . . . Those two types of behavior encompassed
within § 53-21 (a) (1) have been termed the situation
and act prongs.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. St. Cyr, 100
Conn. App. 189, 200, 917 A.2d 578, cert. denied, 282
Conn. 915, 924 A.2d 140 (2007).
The information filed by the state in docket number
CR-12-0178925 alleged that the defendant placed the
victim in a situation that was likely to impair both her
health and her morals. On appeal, the defendant claims
that the evidence was insufficient to establish the latter.
It nonetheless remains that § 53-21 (a) (1) also pro-
scribes conduct that places a child in situations likely
to injure her health.
We conclude that the evidence amply substantiates
a finding that the defendant caused the victim to be
placed in such a situation. The testimonial and docu-
mentary evidence submitted at trial indicates that the
defendant met the fourteen year old victim in the middle
of the night and transported her to an out-of-town hotel
without providing notice to either her parents or his
wife. While at that hotel and a department store the
following day, the victim and the defendant had their
arms around each other. Despite repeated telephone
calls, voicemails and text messages, the defendant did
not respond in any manner to law enforcement officials
or their request to return the victim to the department.
As police investigated her family’s missing person
report, the defendant took the victim shopping and pur-
chased underwear for her. The defendant then took the
victim to a second hotel in yet another town, where
the two again spent the night together alone in a hotel
room. Furthermore, months after this episode, officials
at the victim’s school grew so concerned that she was
engaged in an inappropriate relationship with the defen-
dant that they contacted the department. During their
subsequent investigation, officers learned that the vic-
tim had proclaimed her love for the defendant in her
notebook and had announced that she was preparing
to leave the country with him.
As our Supreme Court has held, ‘‘the term ‘health,’
as used in the ‘health is likely to be injured’ language
of § 53-21, includes mental health as well as physical
health.’’ State v. Scruggs, 279 Conn. 698, 713–14, 905
A.2d 24 (2006). In light of the foregoing, the court rea-
sonably could conclude that the defendant placed the
victim in a situation that was likely to injure her mental
health. Significantly, the court had before it evidence
of the child’s fragile mental state. As the defendant
testified at trial, prior to the events in question, the
victim ‘‘always told me that she . . . felt desperate,
lonely, sad. In fact, she once even told me that she
wanted to die and that she was gonna take some pills.
. . . Since I’ve met her, she’s always said the same to
me.’’ The defendant’s conduct in absconding with the
victim to hotels for two days plainly risked injury to
her mental health, as further reflected by the fact that
she subsequently memorialized her love for him and
planned to leave the country—and presumably her fam-
ily—with him. In addition, the court reasonably could
infer from the surveillance photographs of the victim
with her arms around the defendant and the numerous
nude photographs of the victim found on the defen-
dant’s cell phone that her relationship with the defen-
dant was a very close one.
The defendant nevertheless argues that the court,
in sentencing the defendant, found that there was no
evidence that the defendant actually engaged in sexual
relations with the victim, which he claims is ‘‘disposi-
tive’’ of his evidential insufficiency claim.6 We do not
agree. Section § 53-21 is titled ‘‘Injury or risk of injury
to, or impairing morals of, children.’’ (Emphasis added.)
To obtain a conviction under its situation prong, the
state was not required to prove that sexual conduct
transpired or that the child in question sustained an
injury.7 See State v. Gewily, 280 Conn. 660, 669, 911
A.2d 293 (2006) (‘‘actual injury is not an element of the
‘situation’ prong of § 53-21 [a] [1]’’), and cases cited
therein. With particular respect to the potential for harm
to the mental health of a child, ‘‘the fact finder is not
required to make a determination as to the precise
nature or severity of the injury . . . rather, the fact
finder need only decide whether the accused placed the
child in a situation that was likely to be psychologically
injurious to that child.’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 669. On the basis of the
evidence presented at trial, the court reasonably could
conclude that the defendant’s conduct on November
11 and 12, 2012, placed the victim in such a situation.
Furthermore, our case law recognizes that a child’s
health may be impaired by conduct that separates a
child from her parents. As our Supreme Court has
explained in analyzing a challenge to a conviction under
the situation prong of § 53-21 (a) (1), ‘‘[u]ninterrupted
home life comports . . . with each child’s biological
and psychological need for unthreatened and unbroken
continuity of care by [her] parents. . . . [T]here is little
doubt that breaches in the familial bond will be detri-
mental to a child’s well-being.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 671. For two days,
that bond was breached, as the defendant transported
the victim to out-of-town hotels while refusing to
respond to the repeated queries of law enforcement
officials—queries instigated by the missing person
report filed by her family. For two days, the fourteen
year old child was under the care and custody of an
adult twice her age. On two consecutive days, she spent
the night alone in hotel rooms with that adult.
Viewing the evidence in the light most favorable to
sustaining the verdict, the court reasonably could con-
clude that the defendant placed the victim in a situation
that was likely to injure her health.8 The cumulative
effect of the evidence, including reasonable inferences
drawn therefrom, was sufficient to justify the court’s
determination that the defendant was guilty of risk of
injury to a child.
II
The defendant also claims that the court improperly
dismissed his postsentencing motion to open the judg-
ment of conviction. We do not agree.
The following additional facts are relevant to this
claim. The court rendered its verdict of guilty on one
count of risk of injury to a child in violation of § 53-21
(a) (1) on November 14, 2013. On February 20, 2014,
the court sentenced the defendant to a term of five
years incarceration, execution suspended after four-
teen months, followed by a three year term of probation.
At that time, the court committed the defendant to the
care and custody of the Commissioner of Correction.
On March 7, 2014, the defendant filed a motion to open,
which requested that his judgment of conviction ‘‘be
set aside and reopened and judgment enter for acquittal/
dismissal or for a new trial . . . .’’ Following a hearing,
the court dismissed the motion for lack of jurisdiction.
The defendant now challenges the propriety of that
determination.
‘‘Questions regarding subject matter jurisdiction are
purely legal in nature and subject to plenary review.
. . . The Superior Court is a constitutional court of
general jurisdiction. In the absence of statutory or con-
stitutional provisions, the limits of its jurisdiction are
delineated by the common law. . . . It is well estab-
lished that under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment before the sentence has been executed. . . .
This is so because the court loses jurisdiction over the
case when the defendant is committed to the custody
of the commissioner of correction and begins serving
the sentence. . . . [T]he jurisdiction of the sentencing
court terminates once a defendant’s sentence has
begun, and, therefore, that court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Ramos,
306 Conn. 125, 133–34, 49 A.3d 197 (2012); see also
Cobham v. Commissioner of Correction, 258 Conn. 30,
37, 779 A.2d 80 (2001).9
The defendant has not identified any express authori-
zation under which the court could act on his March 7,
2014 motion. To the extent that the defendant’s motion
sought an acquittal on the risk of injury charge, the
court plainly lacked jurisdiction over that request. State
v. Luzietti, 230 Conn. 427, 432, 646 A.2d 85 (1994) (trial
court lacks jurisdiction to grant motion for judgment
of acquittal ‘‘when the defendant is committed to the
custody of the commissioner of correction and begins
serving the sentence’’). In addition, even if we were to
construe the defendant’s filing as a motion for a new
trial pursuant to Practice Book §§ 42-53 and 42-54, he
could not prevail. Those provisions authorize ‘‘the trial
court in a criminal case to entertain a motion for a new
trial . . . only prior to the termination of its jurisdic-
tion upon sentencing.’’ (Emphasis added.) State v.
Bruno, 132 Conn. App. 172, 178, 30 A.3d 34 (2011),
cert. denied, 303 Conn. 919, 34 A.3d 393 (2012). The
defendant’s motion in the present case was filed more
than two weeks after he was sentenced. Lastly, we note
that the defendant’s motion states that it is brought
pursuant to Practice Book §§ 61-6 and 63-1. Those rules
of appellate procedure do not concern in any manner
the jurisdiction of the trial court to act on a postsentenc-
ing motion, nor does the defendant so argue in this
appeal. We therefore conclude that the court properly
determined that it lacked jurisdiction over the defen-
dant’s March 7, 2014 motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also challenges the propriety of various discretionary
determinations rendered by the court. Specifically, he claims that the court
abused its discretion in (1) striking the testimony of the victim following
her repeated refusal to answer questions on cross-examination, (2) denying
the defendant’s motion to reopen the evidence after the parties had rested
and had made closing arguments to the court, (3) denying the defendant’s
motions to disqualify the trial judge, and (4) sentencing the defendant. We
have carefully considered those claims and conclude that they do not merit
substantial discussion. Our review of the record reveals no abuse of the
court’s ample discretion.
2
In accordance with General Statutes § 54-86e and our policy of protecting
the privacy interests of victims of the crime of risk of injury to a child, we
decline to identify the victim or others through whom the victim’s identity
may be ascertained.
3
At trial, the defendant testified that the victim contacted him because
she was afraid of her brother and that he took her to the hotel in Norwalk
to protect her. Although the defendant on appeal claims that the court was
obligated to credit that testimony, he is mistaken. The trial court, as sole
arbiter of credibility, was entitled to accept or reject the defendant’s testi-
mony in whole or in part. See State v. Morelli, 293 Conn. 147, 160, 976 A.2d
678 (2009). The court likewise was free to draw reasonable inferences from
the evidence before it. State v. Crespo, 317 Conn. 1, 17, 115 A.3d 447 (2015).
4
‘‘A hickey is a temporary red mark on the skin (as one produced by
biting and sucking).’’ (Internal quotation marks omitted.) State v. Cazares-
Mendez, 350 Or. 491, 498 n.4, 256 P.3d 104 (2011).
5
‘‘ ‘Child pornography’ means any visual depiction . . . involv[ing] the
use of a person under sixteen years of age engaging in sexually explicit
conduct . . . .’’ General Statutes § 53a-193 (13). At trial, the defendant had
stipulated that the photographs recovered from his cell phone were of the
victim and that she was under the age of sixteen at all times. General Statutes
§ 53a-193 (14) (E) defines ‘‘sexually explicit conduct’’ in relevant part as
the ‘‘lascivious exhibition of the genitals or pubic area of any person.’’
6
Although the court acknowledged at sentencing that there was ‘‘no objec-
tive evidence’’ that the defendant engaged in sexual relations with the victim,
the court nevertheless stated that ‘‘it does strain credibility.’’
7
The defendant’s claim that ‘‘in no case reported, trial or appellate, has
[§ 53-21 (a) (1)] been applied where there has been no sexual offense or
physical danger’’ is untenable. See, e.g., State v. Gewily, 280 Conn. 660, 672,
911 A.2d 293 (2006) (evidence that defendant relocated child to foreign
country and deprived child contact with custodial parent sufficient to prove
violation of § 53-21 [a] [1]); State v. Payne, supra, 240 Conn. 776 (holding
that § 53-21 [a] [1] ‘‘prohibits conduct that places a child in a situation that
poses a risk of injury to the child’s mental health’’); State v. Fagan, 92 Conn.
App. 44, 54, 883 A.2d 8 (evidence that defendant possessed cocaine in
presence of twelve year old child sufficient ‘‘to prove that he caused or
permitted the twelve year old child to be placed in a situation in which his
morals were likely to be impaired under § 53-21 [a] [1]’’), cert. denied, 276
Conn. 924, 888 A.2d 91 (2005); State v. Padua, 73 Conn. App. 386, 393, 808
A.2d 361 (2002) (‘‘exposing a child, old enough to appreciate what was
transpiring, to selling [narcotics] might be considered as endangering the
morals of that child’’), rev’d in part on other grounds, 273 Conn. 138, 869
A.2d 192 (2005).
8
In light of our conclusion that the evidence supports a finding that the
defendant violated § 53-21 (a) (1) by placing the victim in a situation in
which her health was likely to be injured, we do not consider in much detail
the question of whether he also placed her in a situation where her morals
were likely to be impaired. It suffices to say that the evidence discussed in
this opinion also substantiates such a determination.
9
Although the defendant in his reply brief to this court submits that this
precedent ‘‘should not be followed but should be overturned,’’ we are not
the proper audience for such claims. As an intermediate body, it is axiomatic
that this court is ‘‘bound by Supreme Court precedent and [is] unable to
modify it . . . . [W]e are not at liberty to overrule or discard the decisions
of our Supreme Court but are bound by them. . . . [I]t is not within our
province to reevaluate or replace those decisions.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684–85,
946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). Proper regard
for this court’s role as an intermediate appellate tribunal precludes our
reconsideration of the aforementioned precedent of this state’s highest court.