State v. Charles L. ( 2023 )

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STATE OF CONNECTICUT v. CHARLES L.*
(AC 44690)
Elgo, Cradle and Clark, Js.
Syllabus
Pursuant to statute (§ 53-21 (a) (1)), any person who, inter alia, wilfully or
unlawfully does any act likely to impair the health or morals of a child
under sixteen years old shall be guilty.
Convicted, following a jury trial, of risk of injury to a child pursuant to § 53-
21 (a) (1) in connection with his actions in attempting to entice his
three year old daughter, J, to ingest cleaning solution, the defendant
appealed to this court. Following an angry discussion at a friend’s house,
the defendant, J, and his wife and J’s stepmother, D, returned to their
apartment. While the three were standing in the kitchen, the defendant
made a remark that implied that no one loved him or J, and he was just
going to ‘‘take’’ his life and J’s life. He then proceeded to retrieve a
cleaning solution from a cabinet and poured it into two cups for himself
and J, instructing J to come and drink it. D, who was standing next to
J, told her to stay where she was. The defendant then poured the cleaning
solution from J’s cup into his own and went outside. On appeal to this
court, the defendant claimed that the evidence was insufficient for the
jury to conclude beyond a reasonable doubt that his actions constituted
an act likely to impair the health of a child and that § 53-21 (a) (1) was
unconstitutionally vague as applied to the facts of the case. Held:
1. There was sufficient evidence presented at trial to convict the defendant
pursuant to the act prong of § 53-21 (a) (1): under our Supreme Court’s
decision in State v. Ares (345 Conn. 290), a defendant need not touch
or have direct physical contact with a child in order to be convicted
under the act prong of § 53-21 (a) (1) for engaging in conduct likely to
impair the health of a child, and the defendant’s attempts to distinguish
other cases involving defendants who were convicted for their actions
in either directly handing alcohol to a victim or physically pursuing a
child with a dangerous weapon were not persuasive, as those cases were
instructive in showing that the jury reasonably could have concluded
that the defendant’s conduct was sufficiently egregious to rise to the
level of deliberate, blatant abuse under § 53-21 (a) (1); moreover, the
evidence was sufficient for the jury reasonably to conclude that the
consumption of a toxic cleaning solution would be injurious to J and
that it was likely that J, who was only three years old and standing
close to the defendant at the time, would follow her father’s instruction
to consume the toxic substance, and the fact that, subsequent to the
defendant’s actions, D ultimately intervened to protect J did not render
unreasonable the jury’s conclusion that the defendant’s conduct was
likely to impair J’s health.
2. The defendant could not prevail on his claim that § 53-21 (a) (1) was
unconstitutionally vague as applied to the facts of the case, as the
defendant had sufficient notice that his conduct was prohibited by that
statute: the operative information accused the defendant of committing
an act likely to impair the health and morals of a child in attempting
to entice a three year old minor child to ingest a cup of cleaning solution,
and, because prior judicial decisions provided fair warning that § 53-21
(a) (1) prohibited such conduct, the statute was not unconstitutionally
vague as applied to the defendant; moreover, this court’s decision in
State v. March (39 Conn. App. 267), in which a defendant handed a cup
containing rum to a four year old victim who had requested something
to drink, made clear that providing a harmful substance to a young child
was an act likely to impair the health of that child pursuant to § 53-21
(a) (1); furthermore, cases decided well before the defendant committed
the act in question in this case made clear that physical contact with
the victim was not necessary for a conviction under the act prong of
§ 53-21 (a) (1).
Argued October 3, 2022—officially released January 24, 2023
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child and
one count of the crime of cruelty to persons, brought
to the Superior Court in the judicial district of Hartford,
and tried to the jury before Graham, J.; thereafter, the
court granted the defendant’s motion for a judgment
of acquittal as to two counts of risk of injury to a child;
verdict and judgment of guilty of one count of risk of
injury to child, from which the defendant appealed to
this court. Affirmed.
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, was Sharmese L. Walcott, state’s
attorney, for the appellee (state).
Opinion
CLARK, J. The defendant, Charles L., appeals from
the judgment of conviction, rendered after a jury trial,
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 was insufficient for the jury to conclude
beyond a reasonable doubt that his actions constituted
an act likely to impair the health of a child and (2)
‘‘§ 53-21 (a) (1) is unconstitutionally vague as applied
to the facts of this case . . . .’’ We disagree and, accord-
ingly, affirm the judgment of the trial court.
The following facts, which are either undisputed or
reasonably could have been found by the jury, and pro-
cedural history are relevant to this appeal. In April,
2014, the defendant had a daughter, J, with his then
wife. The defendant’s wife died soon thereafter.
In June, 2016, following the death of his wife, the
defendant married D. They had a daughter together, L,
and the two children resided with them in a two bed-
room apartment in Manchester. D’s sister, B, and B’s
daughter also lived with them in the two bedroom apart-
ment.
At some time in September, 2017, the defendant, D,
J, L, and B were visiting the defendant’s friend, who
lived nearby. At one point during that visit, D said that
she was ready to leave, and B joked that they were
going to leave J with the defendant. In response, the
defendant ‘‘blew up,’’ said, ‘‘f this! You all act like you
all love [J],’’ and then said that no one cared for J. The
family then left the friend’s house and began walking
back to their apartment, and the defendant argued with
B as they walked.
After the family returned to their apartment, the
defendant went to the kitchen with D and J. Still angry,
the defendant stated: ‘‘[I]f anybody loved me and [J],
then I’m just going to take our lives.’’ He then proceeded
to retrieve a generic brand cleaning solution from a
cabinet, as well as a cup for himself and a cup that
specifically belonged to J, and then poured the cleaning
solution into both cups. He instructed J to ‘‘come here
and drink this . . . .’’ D was standing next to J and
told her to stay where she was, and J obeyed. The
defendant then poured the cleaning solution from J’s
cup into his own and went outside. D left the apartment
with J.
In December, 2017, D disclosed this incident to an
investigator with the Department of Children and Fami-
lies (department) while present at a meeting between
the investigator and B. The department prepared a
report reflecting these allegations and submitted it to
the Manchester Police Department. On December 13,
2017, Officer Antony DeJulius spoke with the defendant
about the allegations in the report, and the defendant
reacted.’’ The defendant then became upset and threat-
ened to harm himself, so DeJulius prepared a hospital
committal form and brought the defendant to a hospital.
In January, 2018, DeJulius obtained written statements
from D and B about the September, 2017 incident.
DeJulius then obtained an arrest warrant for the defen-
dant. The defendant was arrested on February 8, 2018.
The state charged the defendant with three counts
of risk of injury to a child in violation of § 53-21 (a)
(1),1 two counts of threatening in the second degree in
violation of General Statutes § 53a-62, and one count
of strangulation in the second degree in violation of
General Statutes (Rev. to 2017) § 53a-64bb. The state
subsequently filed a new short form information that
removed the threatening and strangulation counts,
added a fourth risk of injury count, and added a count
charging the defendant with cruelty to persons in viola-
tion of General Statutes § 53-20 (b) (1). On April 11,
2018, the defendant pleaded not guilty to all charges
and requested a jury trial.
Prior to trial, on January 14, 2020, the state filed a
five count long form information, setting forth specific
accusations supporting the crimes charged.2 On January
22, 2020, the defendant’s trial commenced. After the
state rested its case, the defendant moved for a judg-
ment of acquittal pursuant to Practice Book §§ 42-40
and 42-41 on counts one, two, and four, which charged
the defendant with risk of injury, and count five, which
charged the defendant with cruelty to persons. The trial
court granted the motion as to counts two and four but
denied it as to counts one and five.
On January 23, 2020, the state amended its long form
information, removing the two counts of which the
defendant had been acquitted and renumbering the
counts so that count three, which charged the defendant
with risk of injury, and count five, which charged the
defendant with cruelty to persons, were now labeled
counts two and three, respectively. After the close of
evidence, the court instructed the jury as to the
remaining three counts, and the jury returned a verdict
of guilty as to count one and not guilty as to counts
two and three. On March 9, 2021, the court, Graham,
J., sentenced the defendant to a term of imprisonment
of ten years, execution suspended after five years, and
five years of probation. This appeal followed. Additional
facts and procedural history will be set forth as neces-
sary.
I
The defendant claims that there was insufficient evi-
dence to convict him of risk of injury to a child pursuant
to the act prong of § 53-21 (a) (1). Specifically, he argues
that the state ‘‘did not present evidence that [he] com-
mitted an act of blatant physical abuse or engaged in
conduct directly perpetrated on J,’’ as he contends is
required by State v. Schriver, 207 Conn. 456, 466–67,
542 A.2d 686 (1988). To that end, he argues that ‘‘[t]here
is no evidence that the defendant ever approached J,
nonetheless physically touched or committed blatant
physical abuse upon her . . . .’’ (Citation omitted.) He
further argues that the state presented insufficient evi-
dence to prove that the defendant’s ‘‘act’’ was ‘‘likely’’
to be injurious to J’s health. For the reasons discussed
herein, we disagree with the defendant.
We begin our analysis by setting forth the well estab-
lished legal principles for assessing an insufficiency of
the evidence claim. ‘‘In reviewing the sufficiency of the
evidence to support a criminal conviction 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 reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Petersen, 196 Conn. App. 646, 655, 230 A.3d
696, cert. denied, 335 Conn. 921, 232 A.3d 1104 (2020).
‘‘In particular, before this court may overturn a jury
verdict for insufficient evidence, it must conclude that
no reasonable jury could arrive at the conclusion the
jury did. . . . Although the jury must find every ele-
ment proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt.’’ (Citation omitted; internal quotation marks
omitted.) State v. Rhodes, 335 Conn. 226, 233, 249 A.3d
683 (2020).
The defendant argues that the evidence was insuffi-
cient to support his conviction because there was no
evidence that he engaged in ‘‘blatant physical abuse.’’
Specifically, he claims that, in order to be convicted
under the act prong of § 53-21 (a) (1) for conduct likely
to impair the health of a child, there must be evidence
that the defendant physically touched the child. He fur-
ther argues that, even if the statute does not require a
defendant to physically touch a child, his conduct was
not sufficiently egregious for the jury to have concluded
that he engaged in ‘‘blatant physical abuse’’ of a child.
We begin our discussion with a brief overview of
§ 53-21 (a) (1). Section 53-21 (a) provides in relevant
part: ‘‘Any person who (1) 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 . . . shall be guilty
of . . . a class C felony . . . .’’ (Emphasis added.) Our
courts ‘‘have [long] recognized that subdivision (1) of
§ 53-21 [now § 53-21 (a) (1)] prohibits two different
types of behavior: (1) deliberate indifference to, acqui-
escence in, or the creation of situations inimical to the
[child’s] moral or physical welfare . . . and (2) acts
directly perpetrated on the person of the [child] and
injurious to his [or her] moral or physical well-being.
. . . Cases construing § 53-21 have emphasized this
clear separation between the two parts of the statute
. . . .’’ (Citation omitted; emphasis omitted; footnote
omitted; internal quotation marks omitted.) State v.
Robert H., 273 Conn. 56, 65, 866 A.2d 1255 (2005).
Since its passage, a judicial gloss has been imposed
on § 53-21. Pertinent to the issues raised in this appeal,
our Supreme Court in State v. Schriver, supra, 207
Conn. 461, distinguished between acts likely to impair
the ‘‘morals’’ of a child and acts likely to impair the
‘‘health’’ of a child. It stated that an act likely to impair
the morals of a child involves ‘‘deliberate touching of
the private parts of a child under the age of sixteen in
a sexual and indecent manner . . . .’’ (Internal quota-
tion marks omitted.) Id., 463. The court found that the
defendant had not engaged in such conduct and, thus,
‘‘had no reasonable opportunity to know that his con-
duct was prohibited by the impairment of morals clause
of § 53-21.’’ Id., 466. As for acts likely to impair the
health of a child, the court found that prior cases had
‘‘provide[d] an authoritative judicial gloss that limits
the type of physical harm prohibited by § 53-21 to
instances of deliberate, blatant abuse’’; id.; and con-
cluded that ‘‘the irreducible minimum of any prosecu-
tion under the [act prong] of § 53-21 is an act directly
perpetrated on the person of a minor.’’ Id., 467.
Following oral arguments in the present appeal, our
Supreme Court decided State v. Ares, 345 Conn. 290,
284 A.3d 967 (2022). In Ares, the defendant, using a
book of matches, set fire to a mattress on the front
porch of the first floor of a three-family residence where
he lived after an argument with his stepfather. Id., 293.
By the time police arrived at the scene, ‘‘all three stories
of the building were already engulfed in flames . . . .’’
Id., 294. ‘‘All twelve occupants who were at the scene
at the time of the incident were evacuated from the
building,’’ including ‘‘the four minor children who were
inside of the building’s second floor apartment.’’ Id.None of the children were injured. Id.The defendant was subsequently charged and con-
victed of various crimes, including four counts of risk
of injury to a child in violation of § 53-21 (a) (1). Id.,
295. On appeal before our Supreme Court, he argued
that the evidence against him was insufficient to convict
him under the act prong of § 53-21 (a) (1). Id., 296.
Specifically, he argued ‘‘that, because the evidence
introduced at trial demonstrated only that he lit fire to
a mattress on the building’s front porch, the state [could
not] establish that he ever took any act directly on the
person of a minor.’’ Id., 300–301. Our Supreme Court
stated that ‘‘[t]he fact that the defendant’s actions were
motivated by his fight with the occupants on the first
floor, rather than being specifically directed at the four
children themselves, is not categorically dispositive
. . . .’’ Id., 301–302. The court further stated that ‘‘[t]he
fact that the children escaped from the building without
being harmed by the resulting flames or smoke is, like-
wise, not dispositive [because] proof of actual injury is
not required.’’ Id., 302. The court concluded that ‘‘[a]
reasonable finder of fact could have concluded, on the
basis of the totality of the circumstances present [on
that] particular record, that such conduct was suffi-
ciently egregious to rise to the level of blatant abuse.’’
Id., 303. The court reasoned that, ‘‘[a]lthough the initial
distance between the four children and the fire’s origin,
together with their eventual escape from the structure,
may well have been relevant to the question of whether
such physical injuries were sufficiently probable to war-
rant conviction, ample evidence about the speed of the
blaze—together with the intensity of both the heat and
smoke it produced—undisputedly supports the trial
court’s factual finding in that regard.’’ Id. It therefore
rejected the defendant’s claim of evidentiary insuffi-
ciency. Id.
In Ares, the court observed that, ‘‘[o]ver the decades
following Schriver, two particularly relevant legal prin-
ciples have embedded themselves in our state’s risk of
injury jurisprudence. The first is that the state need not
prove specific intent in order to establish a violation
under either the situation or act prong. See, e.g., State
v. Maurice M., 303 Conn. 18, 28, 31 A.3d 1063 (2011)
(specific intent is not required to establish violation of
situation prong); State v. March, 39 Conn. App. 267,
274–75, 664 A.2d 1157 (specific intent is not required
to establish violation of act prong), cert. denied, 235
Conn. 930, 667 A.2d 801 (1995). Evidence sufficient to
support a finding of general intent will suffice. See,
e.g., State v. McClary, [207 Conn. 233, 240, 541 A.2d 96(1988)]; State v. Euclides L., 189 Conn. App. 151, 161–62,
207 A.3d 93 (2019).
‘‘The second well established legal principle is that
the state need not prove actual injury in order to secure
a conviction under either the situation prong or the act
prong of § 53-21 (a) (1). See, e.g., State v. Burton, 258
Conn. 153, 161, 778 A.2d 955 (2001) (‘[Section] 53-21
does not require a finding that the victim’s [health or]
morals were actually impaired. On the contrary, § 53-
21 provides [in relevant part] that anyone ‘‘who . . .
wilfully or unlawfully . . . does any act likely to
impair the health or morals of any such child’’ may
be found guilty.’ (Emphasis added.)); see also State v.
Gewily, 280 Conn. 660, 669, 911 A.2d 293 (2006); State
v. Padua, [273 Conn. 138, 148, 869 A.2d 192 (2005)];
State v. Samms, 139 Conn. App. 553, 559, 56 A.3d 755(2012), cert. denied, 308 Conn. 902, 60 A.3d 287 (2013).
Although Schriver requires that the defendant commit
an act of ‘deliberate, blatant abuse’; State v. Schriver,
supra, 207 Conn. 466; it does not require that the defen-
dant cause an actual injury. It remains possible for
a defendant’s conduct to be sufficiently egregious in
nature that it rises to the level of deliberate, blatant
abuse, even in the absence of a defendant’s direct phys-
ical contact with a child. See, e.g., State v. Owens, 100
Conn. App. 619, 622–23, 638, 918 A.2d 1041 (concluding
that ‘the mere fact that the defendant did not physically
touch [the child] while pursuing her should not relieve
him of criminal liability under the act prong’ when
defendant chased child with knife after stabbing child’s
mother), cert. denied, 282 Conn. 927, 926 A.2d 668(2007). Although proof of physical contact has been
required to sustain a conviction under the act prong of
§ 53-21 in certain other contexts; see State v. Pickering,
[180 Conn. 54, 64, 428 A.2d 322 (1980)] (statutory pro-
scription of acts likely to impair morals of children
required ‘deliberate touching of the private parts of a
child under the age of sixteen in a sexual and indecent
manner’); neither the statute’s plain text nor the case
law applying it requires proof of such contact in all
cases.’’ (Emphasis added.) State v. Ares, supra, 345
Conn. 299–300.
Our Supreme Court’s decision in Ares makes clear
that a defendant need not touch or have ‘‘direct physical
contact with’’ a child in order to be convicted under
the act prong of § 53-21 (a) (1) for engaging in conduct
likely to impair the health of a child. Id., 300. We there-
fore reject the defendant’s contention that evidence
of physical contact with J was required to sustain his
conviction.
The defendant nevertheless contends that, even if
§ 53-21 (a) (1) does not require a defendant to physically
touch a child, there was insufficient evidence for the
jury to conclude that his conduct constituted ‘‘ ‘deliber-
ate, blatant abuse’ ’’ for purposes of the statute. In sup-
port of that claim, he cites to a number of cases in
which a defendant was convicted for conduct that he
argues was more egregious in nature insofar as the
defendants in those cases either directly handed alcohol
to a victim; State v. Hector M., 148 Conn. App. 378, 392,
85 A.3d 1188, cert. denied, 311 Conn. 936, 88 A.3d 550(2014); State v. March, supra, 39 Conn. App. 276; or
physically pursued a child with a dangerous weapon.
State v. Owens, supra, 100 Conn. App. 622–23. We are
not persuaded. Although the defendant attempts to dis-
tinguish those cases from the facts of this case, we find
those cases instructive.
In Owens, which our Supreme Court cited to approv-
ingly in Ares; see State v. Ares, supra, 345 Conn. 300;
the defendant stabbed a woman, and, when the wom-
an’s child entered the room and told the defendant to
leave her mother alone, he told the child to ‘‘get the
fuck out of here’’ and ran two or three steps toward
her with the knife, chasing the child out of the room.
State v. Owens, supra, 100 Conn. App. 622–23. This
court upheld the defendant’s conviction under § 53-21
(a) (1) for committing an act likely to impair the health
of a child, concluding that ‘‘the mere fact that the defen-
dant did not physically touch [the child] while pursuing
her should not relieve him of criminal liability under
the act prong of § 53-21 (a) (1).’’ Id., 638. This court
reasoned that, ‘‘[i]f we were to hold otherwise and adopt
the defendant’s arguments that a physical touching is
required to convict the defendant, it would make the
language of § 53-21 (a) (1) meaningless and frustrate
its purpose. For example, pursuant to the defendant’s
interpretation, if one threw a knife at a victim or
attempted to stab a victim while in pursuit, his or her
culpability would depend on the accuracy of his or her
arm or on his or her speed in relation to that of the
intended victim. Such an interpretation of § 53-21 (a)
(1) would render the statute an absurdity.’’ Id., 638–39.
In Hector M., the defendant was convicted of risk of
injury to a child after providing alcohol to his daughter.
State v. Hector M., supra, 148 Conn. App. 388. The evi-
dence revealed that the daughter had only ‘‘a couple of
sips’’ of the alcoholic beverage before she decided not
to continue drinking. (Internal quotation marks omit-
ted.) Id., 383. The defendant argued that the state failed
to prove that he violated § 53-21 because his daughter
did not drink enough to become intoxicated. Id., 390. In
rejecting the defendant’s argument, this court reasoned
that, ‘‘[p]ursuant to the defendant’s interpretation, one’s
culpability would depend on whether a child under the
age of sixteen was actually intoxicated or impaired in
order for a defendant to be found in violation of the
statute.’’ Id., 390–91. We explained that ‘‘[s]uch a view
is at odds with the stated purpose of § 53-21 (a) (1),
which is to protect the health and morals of children.’’
Id., 391. Citing Owens, we stated that the defendant’s
argument ‘‘also fail[ed] to provide a proper focus on
the behavior of the defendant, as our precedent
requires.’’ Id. In concluding that the evidence was suffi-
cient to support his conviction, this court reasoned that
‘‘[t]he fact that [the daughter] had only a few sips of
the alcohol is irrelevant because she decided, on her
own, not to continue drinking. Allowing a defendant to
circumvent a charge of risk of injury to a child when
the [child] chooses not to drink would render § 53-21
an absurdity.’’ Id., 391–92. We observed that the facts
of that case were ‘‘akin to State v. March, [supra] 39
Conn. App. 267 . . . where a defendant was convicted
of risk of injury to a child for giving a four year old a
cup containing rum and soda’’ and ‘‘the child was not
impaired after drinking the alcohol.’’ State v. Hector
M., supra, 392. We emphasized in Hector M. that ‘‘[t]here
is no requirement . . . that the state prove an actual
injury to the child. Rather, courts are required to focus
on the acts committed by the defendant in order to
determine whether those acts were likely to endanger
the life of the child.’’ Id.
With this as our backdrop, and on the basis of our
review of the evidence presented at trial, we conclude
that the jury reasonably could have concluded that the
defendant’s conduct was sufficiently egregious to rise
to the level of deliberate, blatant abuse. D and B testified
that the defendant, who was visibly angry, stated that
he intended to take his and J’s lives3 and then retrieved
J’s cup and a cup for himself. The jury also heard testi-
mony that, after pouring the cleaning solution into the
cups, the defendant told J, his three year old daughter
who stood nearby, to come to him and drink it. D further
testified that, to the best of her knowledge, the cleaning
solution that the defendant poured into the cup was
poisonous and would be harmful if ingested and that
the defendant was sincere in his efforts to entice J to
drink the cleaning solution. Although there was no
direct physical contact with J, this evidence, and the
reasonable inferences that the jury could have drawn
from it, was sufficient for the jury reasonably to con-
clude that the defendant violated the act prong of § 53-
21 (a) (1) through acts that constituted deliberate, bla-
tant abuse.
Our discussion does not end there, however. The
defendant also argues that the evidence was insufficient
to support a finding that his actions were ‘‘likely’’ to
impair J’s health because D was present throughout the
incident and prevented J from ingesting the cleaning
solution. We are not persuaded.
Construing the evidence in the record in a light most
favorable to sustaining the verdict, as we must when
considering evidentiary sufficiency; see State v. Peter-
sen, supra, 196 Conn. App. 655; we conclude that the
evidence was sufficient for the jury reasonably to con-
clude that the consumption of a toxic cleaning solution
would be injurious to J and that it was likely that J,
who was only three years old and standing close to
the defendant at the time, would follow her father’s
instruction to consume the toxic substance. See State
v. Owens, supra, 100 Conn. App. 639–40 (reviewing
meaning of ‘‘likely’’). The fact that, subsequent to the
defendant’s actions, D ultimately intervened to protect
J does not render unreasonable the jury’s conclusion
that the defendant’s conduct was likely to impair J’s
health. See State v. Ares, supra, 345 Conn. 302 (evidence
was sufficient to support conviction despite adult
intervening and safely removing children from building
before fire spread). We reiterate that ‘‘[t]here is no
requirement . . . that the state prove an actual injury
to the child. Rather, courts are required to focus on the
acts committed by the defendant in order to determine
whether those acts were likely to endanger the life of
the child.’’ (Emphasis added.) State v. Hector M., supra,
148 Conn. App. 392. Accordingly, we conclude that the
jury heard sufficient evidence that, if credited, would
support its finding that the defendant’s act of enticing J
to drink cleaning solution was likely to impair J’s health.
II
The defendant also claims that his conviction violates
due process because § 53-21 (a) (1) is unconstitutionally
vague as applied to the facts of this case.4 Specifically,
the defendant argues that there was inadequate notice
that § 53-21 (a) (1) prohibited the conduct here because
the defendant never physically touched J. We disagree.
‘‘The determination of whether a statutory provision
is unconstitutionally vague is a question of law over
which we exercise de novo review. . . . In undertaking
such review, we are mindful that [a] statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to [him], the [defen-
dant] therefore must . . . demonstrate beyond a rea-
sonable doubt that [he] had inadequate notice of what
was prohibited or that [he was] the victim of arbitrary
and discriminatory enforcement. . . .
‘‘[T]he void for vagueness doctrine embodies two
central precepts: the right to fair warning of the effect
of a governing statute . . . and the guarantee against
standardless law enforcement. . . . If the meaning of
a statute can be fairly ascertained a statute will not be
void for vagueness [because] [m]any statutes will have
some inherent vagueness, for [i]n most English words
and phrases there lurk uncertainties.’’ (Internal quota-
tion marks omitted.) State v. Lori T., 345 Conn. 44, 54,
282 A.3d 1233 (2022). Moreover, ‘‘[a] facially vague law
may nonetheless comport with due process if prior
judicial decisions have provided the necessary fair
warning and ascertainable enforcement standards.’’
(Internal quotation marks omitted.) State v. Robert H.,
supra, 273 Conn. 67; see also State v. Scruggs, 279 Conn.
698, 710, 905 A.2d 24 (2006) (‘‘[r]eferences 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’’
(internal quotation marks omitted)).
Count one of the operative long form information
accused the defendant of ‘‘committ[ing] an act likely
to impair the health and morals of [a] child, to wit:
attempting to entice a three year old minor child to
ingest a cup of cleaning solution . . . .’’ (Citation omit-
ted.) Because prior judicial decisions provided fair
warning that § 53-21 (a) (1) prohibited such conduct,
we conclude that the statute is not unconstitutionally
vague as applied to the defendant.
Our decision in March is particularly instructive. In
that case, we affirmed a § 53-21 (a) conviction based
on a defendant ‘‘hand[ing] a cup containing rum to the
four year old victim who had requested something to
drink.’’ State v. March, supra, 39 Conn. App. 276. The
defendant argued that this conduct was insufficient to
support a conviction under the act prong of § 53-21 (a)
(1) and, instead, was only prohibited under the situation
prong. Id. We disagreed, concluding that, ‘‘due to the
age of the victim, this [was] an act directly perpetrated
upon a child that [was] likely to impair the health or
morals of the child.’’ (Footnote omitted.) Id. With that
decision, we made clear that providing a harmful sub-
stance to a young child is an act likely to impair the
health of that child pursuant to § 53-21 (a) (1). See id.;
see also State v. Hector M., supra, 148 Conn. App. 391–92
(providing alcohol to fourteen year old who took only
few sips was act likely to impair child’s health); State
v. Ritrovato, 85 Conn. App. 575, 588–90, 858 A.2d 296(2004) (providing LSD to fifteen year old was act likely
to impair child’s health), rev’d on other grounds, 280
Conn. 36, 905 A.2d 1079 (2006).
Furthermore, although the defendant argues that he
was not sufficiently on notice that his conduct was
prohibited by the statute because he did not physically
touch the victim, as described in part I of this opinion,
cases decided well before the defendant committed the
criminal act in question in this case made clear that no
such contact was necessary for a conviction under the
act prong of § 53-21 (a) (1). See, e.g., State v. Owens,
supra, 100 Conn. App. 638; State v. March, supra, 39
Conn. App. 276. Although the defendant takes issue
with this court’s reasoning in Owens, he cannot claim
that the decision did not put him on notice that his
conduct violated § 53-21 (a) (1). Moreover, as noted
earlier in this opinion, our Supreme Court has since
cited Owens approvingly for the proposition that a
defendant may be convicted under the statute even in
the absence of physical contact with the victim. State
v. Ares, supra, 345 Conn. 300.
Accordingly, because the defendant had sufficient
notice that his conduct was prohibited by § 53-21 (a) (1),
the statute is not unconstitutionally vague as applied
to him.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
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.
See General Statutes § 54-86e.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) 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 . . . shall be guilty of (A) a
class C felony . . . .’’
2
The five charges arose from separate incidents that were alleged to have
occurred ‘‘in or around August—November, 2017 . . . .’’ Count one accused
the defendant of committing ‘‘an act likely to impair the health and morals
of any such child, to wit: attempting to entice a three year old minor child
to ingest a cup of cleaning solution . . . .’’ Count two accused the defendant
of committing ‘‘an act likely to impair the health and morals of any such
child, to wit: physically and verbally threatening to drown a three year old
minor child . . . .’’ Count three accused the defendant of committing ‘‘an
act likely to impair the health and morals of any such child, to wit: restricting
a three year old minor child’s airway as a form of punishment . . . .’’ Count
four accused the defendant of committing ‘‘an act likely to impair the health
and morals of any such child, to wit: threatening a three year old minor
child with a knife . . . .’’ And count five, cruelty to persons, accused him
of having ‘‘control and custody of a child under the age of nineteen years,
to wit: a three year old minor child, and intentionally maltreated such
child . . . .’’
3
We note again that, in prosecutions pursuant to § 53-21 (a) (1), ‘‘the state
need not prove specific intent in order to establish a violation under either
the situation or act prong. . . . Evidence sufficient to support a finding of
general intent will suffice.’’ (Citations omitted.) State v. Ares, supra, 345
Conn. 299.
4
The defendant did not raise this issue at trial but argues that it is nonethe-
less reviewable pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823(1989). Golding allows review when ‘‘(1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’’ (Footnote omitted.) Id., 239–40; see also In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding). The state
does not challenge the reviewability of the vagueness claim under Golding.
Because the record is adequate for review and the claim is of constitutional
magnitude, we will review the void for vagueness claim under Golding ‘‘to
determine whether a constitutional violation . . . existed and, if so, whether
it caused harm to the defendant.’’ State v. Ortiz, 83 Conn. App. 142, 157,
848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).