State v. Hector M.

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STATE OF CONNECTICUT v. HECTOR M.1
(AC 34642)
DiPentima, C. J., and Gruendel and Lavery, Js.
Argued November 20, 2013—officially released February 25, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)
Mary Beattie Schairer, assigned counsel, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Catherine Brannelly Austin, senior assistant
state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Hector M., appeals
from the judgment of conviction, rendered after a trial
to the court, of two counts of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1), two counts of sexual assault in the third degree
in violation of General Statutes § 53a-72a (a) (2), two
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2), and one count of risk of injury
to a child in violation of § 53-21 (a) (1). On appeal, the
defendant claims that (1) the evidence adduced at trial
was insufficient to support his conviction of sexual
assault in the second degree, sexual assault in the third
degree, and risk of injury to a child, and (2) the convic-
tion of risk of injury to a child under § 53-21 (a) (1)
should be dismissed because the statute is void for
vagueness.2 We affirm the judgment of the trial court.
The following evidence supports the trial court’s find-
ing of guilt in the present case. The defendant and his
biological daughter, Y, began living together in Septem-
ber, 2008, when she was thirteen years old.3 The defen-
dant was in the military and spoke with Y about ‘‘one
of his best friends,’’ Estephan Elson, who he claimed
had fought at war with him and who also had a daughter,
Elizabeth. The defendant told Y that Elizabeth ‘‘was
sixteen years old . . . and that she had a sexual rela-
tionship with her father.’’ The defendant, under the
guise of both Estephan Elson and Elizabeth Elson,
began communicating with Y through e-mail on a
daily basis.
In December, 2009, Y was first approached about her
‘‘destiny.’’ The defendant and Y went to visit the grave
of Y’s grandmother, where the defendant told her, ‘‘your
grandmother loved me a lot, and I remember one day
she had [sat] me and your mother down, and she was
telling me that this relationship wasn’t going to last.
. . . [S]he told me that your mother’s going to bring
the woman of his life into his life, take her away, and
drop her off at his doorstep. And [the defendant] asked
[Y] if [she] knew what that meant . . . . And he had
told [her] that he was going to ask Elizabeth Elson and
Estephan Elson if they understood what it meant. And
that very day,’’ Y testified, ‘‘Elizabeth Elson, Estephan
Elson, had wrote to me in the e-mail, stating what the
destiny was about, and the destiny was, it was me, that
my mother brought me into his life, took me away, and
dropped me off at his doorstep.’’ According to Estephan
Elson and Elizabeth Elson, Y’s destiny was ‘‘to save
[the defendant’s] life, and his eight soldiers. And a part
of that destiny was to be the woman of his life . . .
taking care of him, and also having sexual intercourse
with [him].’’
Y did not want to accept her ‘‘destiny,’’ but she testi-
fied that ‘‘in the e-mails [Estephan Elson and Elizabeth
Elson] kept antagonizing me, saying that my dad was
going to die, my sister was going to die and [Estephan
Elson] was going to die . . . . [H]e was saying that I
don’t want that kind of blood on my hands . . . that
I’m going [to] regret it for the rest of my life . . . .’’
Estephan Elson specifically told Y that he went to a
priest about Y’s destiny, to which the priest allegedly
explained to Estephan Elson, who then wrote it in an
e-mail to Y, about ‘‘the significance of the destiny and
. . . how strong the destiny is, and that . . . [it] is
going to basically end horribly.’’ Y testified that because
of ‘‘the way [the e-mail was] written and . . . having
to do with God,’’ it made her believe that her destiny
was real and that she must fulfill it. It was after all of
the e-mails that Y finally agreed to her destiny and to
be her ‘‘father’s woman’’ because she ‘‘did not want
[her] little sister to grow up without a father. [She] did
not want the eight soldiers . . . [or her] father to die
because [she] trusted [the defendant] and [she]
believe[d] that what [the defendant, Estephan Elson,
and Elizabeth Elson were] saying was true.’’
Y was advised, by Elizabeth Elson and Estephan
Elson, how to complete her destiny—by ‘‘rubbing’’ pri-
vate parts with the defendant. As Y testified, she was
told that ‘‘[w]e were to strip into our underwear, I had
to wear my bra and my panties and he had to stay in
his boxers. And he had to lay his penis on his stomach,
and I had to lay on the side of him, and he had to . . .
rub . . . my clitoris until I was to get wet and then I
had to go on top of him and rub until we both had
an orgasm.’’
On December 29, 2009, when Y was under the age
of sixteen, the defendant brought Y and his other daugh-
ter to Coco Keys in Waterbury, a hotel and waterpark.
On the way, the defendant stopped to purchase Smir-
noff green apple and strawberry liquor as well as a box
of condoms. After playing at the waterpark and putting
the younger daughter to bed, the defendant opened the
alcoholic beverages. He provided the Smirnoff to Y, and
she testified that she had ‘‘a couple of sips’’ of hers.
She did not continue to drink, she testified, because ‘‘it
just felt weird.’’ Y then put on a new outfit she received
for her birthday, and the defendant took photographs
of her in the hotel bathroom. He then said, ‘‘well, it’s
getting late, and let’s do this already.’’
Y then ‘‘stripped down to [her] bra and panties, and
[she] laid right on the side of [the defendant],’’ and he
asked if she was ready. When she said no, the defendant
stated, ‘‘well, we have to do this,’’ and then he put his
hands between her labia majora,4 rubbing her clitoris.
The defendant ‘‘grabbed his penis, laid it right on his
stomach, and [Y] got on top and [they] just started
rubbing.’’ The defendant’s penis was, according to Y,
touching her ‘‘clitoris and . . . between . . . [her
labia majora].’’ Later, the defendant ‘‘took off [Y’s] pant-
ies and just stuck it in . . . at least two times’’ until Y
pushed him off of her. The defendant ejaculated after
touching his own penis while rubbing Y’s clitoris. The
next morning, the defendant told Y, ‘‘you saved us, baby,
you saved us.’’5
The defendant thereafter was arrested and charged
with the aforementioned crimes. A trial followed, at
the conclusion of which the court found the defendant
guilty. The court rendered judgment accordingly and
sentenced him to a total effective term of twenty-six
years imprisonment, execution suspended after four-
teen years, with twenty-five years of probation.6 This
appeal followed.
I
The defendant claims that there was insufficient evi-
dence to support his conviction of sexual assault in the
second degree, sexual assault in the third degree, and
risk of injury to a child. These claims are unavailing.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . . In evaluating evidence, the trier of fact is
not required to accept as dispositive those inferences
that are consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require
that each subordinate conclusion established by or
inferred from the evidence, or even from other infer-
ences, be proved beyond a reasonable doubt . . .
because this court has held that a jury’s factual infer-
ences that support a guilty verdict need only be reason-
able. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . On
appeal, 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 evidence that supports the
[fact finder’s] verdict of guilty. . . . Furthermore, [i]n
[our] process of review, it does not diminish the proba-
tive force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts [that] establishes guilt in a case
involving substantial circumstantial evidence.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Hedge, 297 Conn. 621, 656–58, 1 A.3d 1051 (2010).
A
The defendant first claims that there was insufficient
evidence of sexual intercourse as a matter of law to
support his conviction of sexual assault in the second
degree and sexual assault in the third degree7 because
the sexual contact took place through clothing. We
disagree.
The defendant was convicted under § 53a-71 and
§ 53a-72a, both of which require sexual intercourse
between the defendant and another person. Section
53a-71 (a) provides in relevant part: ‘‘A person is guilty
of sexual assault in the second degree when such person
engages in sexual intercourse with another person and:
(1) Such other person is thirteen years of age or older
but under sixteen years of age and the actor is more
than three years older than such other person . . . .’’
Section 53a-72a (a) provides in relevant part: ‘‘A person
is guilty of sexual assault in the third degree when such
person . . . (2) engages in sexual intercourse with
another person whom the actor knows to be related to
him or her within any of the degrees of kindred specified
in section 46b-21.’’
General Statutes § 53a-65 (2) defines sexual inter-
course as ‘‘vaginal intercourse, anal intercourse, fellatio
or cunnilingus between persons regardless of sex. Its
meaning is limited to persons not married to each other.
Penetration, however slight, is sufficient to complete
vaginal intercourse, anal intercourse or fellatio and
does not require emission of semen. Penetration may
be committed by an object manipulated by the actor
into the genital or anal opening of the victim’s body.’’
Our Supreme Court has commented that there is noth-
ing to suggest that the term genital opening was
intended ‘‘to require that penetration occur beyond the
labia majora to at least the labia minora . . . .’’8 (Inter-
nal quotation marks omitted.) State v. Albert, 252 Conn.
795, 813, 750 A.2d 1037 (2000).
‘‘[B]ecause the statutory provisions that prohibit forc-
ible and nonconsensual sexual intercourse were
designed to punish the fact, not the degree, of penetra-
tion . . . the least penetration of the body is sufficient
to satisfy the penetration element of this state’s sexual
assault statutes. . . . Accordingly, we . . . have con-
cluded that the penetration element of those statutes is
satisfied by the penetration of the labia majora because
penetration of the labia majora constitutes penetration
of the body.’’ (Citations omitted; internal quotation
marks omitted.) State v. Merriam, 264 Conn. 617, 630,
835 A.2d 895 (2003). To clarify, ‘‘the opening between
the . . . labia majora . . . is the genital opening . . .
that the labia majora form the boundaries of the genital
opening . . . [and] that . . . penetration, however
slight, of the labia majora is sufficient penetration to
constitute vaginal intercourse under § 53a-65 (2). . . .
[T]he state need not prove penetration of the vagina,
but, rather, penetration of the labia majora. . . . Subse-
quent decisions repeatedly have reaffirmed and applied
this conclusion. See, e.g., [id., 630]; State v. Scott, [256
Conn. 517, 534, 779 A.2d 702 (2001)]; State v. Juan V.,
109 Conn. App. 431, 449, 951 A.2d 651, cert. denied, 289
Conn. 931, 958 A.2d 161 (2008).’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. David N.J., 301 Conn. 122, 159, 19 A.3d 646(2011).
The defendant’s claim of evidentiary insufficiency is
predicated on his assertion that the state failed to prove
penetration and, consequently, failed to prove that he
engaged in sexual intercourse with Y. The defendant
argues that sexual contact through clothing is a barrier
that prevents ‘‘intrusions into the interior,’’ which he
claims is required by the plain meaning of the word pen-
etration.
In construing the evidence in a light most favorable
to sustaining the court’s finding of guilty, we conclude
that the court reasonably could have found the evidence
to be sufficient to satisfy the penetration element of
§§ 53a-71 (a) (1) and 53a-72a (a) (2). Although our appel-
late courts have not specifically addressed penetration
through underwear, or any other type of clothing, our
precedent nonetheless provides adequate guidance on
this sufficiency claim. Our Supreme Court has explicitly
stated that penetration of the labia majora constitutes
penetration of the body. See State v. Merriam, supra,
264 Conn. 630. Y testified that she and the defendant
were wearing underwear when the alleged penetration
took place, but further testified that the defendant’s
penis was rubbing between her labia majora and touch-
ing her clitoris. Our jurisprudence does not qualify the
term ‘‘penetration, however slight,’’ to require that the
penetration occur without any intervening material. As
a result, the court could have reasonably concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt that the defendant
engaged in sexual intercourse with Y.9 Consequently,
the defendant’s claim of evidentiary insufficiency fails.
B
The defendant also claims that the evidence pre-
sented is insufficient to support a conviction of risk of
injury to a child for providing alcohol to a minor in
violation of § 53-21 (a) (1). We do not agree.
The defendant was charged with violating § 53-21 (a),
which 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 . . . .’’
‘‘[Section] 53-21 (a) (1) is broadly drafted and was
intended to apply to any conduct, illegal or not, that
foreseeably could result in injury to the health of a
child.’’ State v. Scruggs, 279 Conn. 698, 724–25, 905 A.2d
24 (2006). Our Supreme Court ‘‘has interpreted § 53-21
(a) (1) as being comprised of two distinct prongs, the
situation prong and act prong . . . .’’ (Internal quota-
tion marks omitted.) State v. Owens, 100 Conn. App.
619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927,
926 A.2d 668 (2007). The defendant was charged only
under the act prong.
‘‘Under the act prong of our risk of injury statute
[t]he four elements the [fact finder] needed to find to
return a verdict of guilty are: (1) the victim was less
than sixteen years old; (2) the defendant committed an
act upon the victim; (3) the act was likely to be injurious
to the victim’s health . . . and (4) the defendant had
the general intent to commit the act upon the victim.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Patterson, 131 Conn. App. 65, 78–79, 27 A.3d
374 (2011), aff’d, 308 Conn. 835, 68 A.3d 83 (2013).
‘‘[T]he charge of risk of injury to a child does not
require proof of an actual injury, but only that the
actions of the defendant exposed the victim to a situa-
tion that potentially could impair his health. State v.
Peters, 40 Conn. App. 805, 828–29, 673 A.2d 1158, cert.
denied, 237 Conn. 925, 677 A.2d 949 (1996). ‘‘The rele-
vant inquiry is whether the defendant committed any
act that was likely to endanger the life or limb, or impair
the health, of the children, not whether the children
actually were injured. Lack of an actual injury to either
the physical health or morals of the victim is irrelevant
. . . actual injury is not an element of the offense. . . .
State v. Sullivan, 11 Conn. App. 80, 98, 525 A.2d 1353(1987). [T]he creation of a prohibited situation is suffi-
cient. State v. Perruccio, 192 Conn. 154, 160, 471 A.2d
632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L.
Ed. 2d 6 (1984).’’ (Internal quotation marks omitted.)
State v. Davila, 75 Conn. App. 432, 437, 816 A.2d 673(2003), cert. denied, 264 Conn. 909, 826 A.2d 180 (2003),
cert. denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d
166 (2004); see also State v. Samms, 139 Conn. App.
553, 559, 56 A.3d 755 (2012), cert. denied, 308 Conn.
902, 60 A.3d 287 (2013); State v. Patterson, supra, 131
Conn. App. 79.
Additionally, it is important to note that ‘‘[t]he general
purpose of § 53-21 is to protect the physical and psycho-
logical well-being of children from the potentially harm-
ful conduct of adults.’’ State v. Payne, 240 Conn. 766,
771, 695 A.2d 525 (1997), overruled in part on other
grounds by State v. Romero, 269 Conn. 481, 490, 849
A.2d 760 (2004). ‘‘Furthermore, although § 53-21 (a) (1)
is divided into an act prong and situation prong, [i]n
both instances, the focus of the statute is on the behav-
ior of the defendant . . . .’’ (Internal quotation marks
omitted.) State v. Owens, supra, 100 Conn. App. 638.
The defendant argues that the state failed to prove
that offering Y ‘‘a few sips of alcohol negatively
impacted her morals’’ because she did not drink enough
to become intoxicated.10 Pursuant 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. Such a view is at odds
with the stated purpose of § 53-21 (a) (1), which is to
protect the health and morals of children. It also fails
to provide a proper focus on the behavior of the defen-
dant, as our precedent requires. See State v. Owens,
supra, 100 Conn. App. 639.
In the present case, the defendant provided alcohol to
a minor prior to sexually assaulting her. ‘‘In evaluating
whether a situation is likely to impair a victim’s morals,
the relevant inquiry . . . is to evaluate the situation in
light of precepts that are commonly accepted among
us as right and decent.’’ (Internal quotation marks omit-
ted.) State v. Eastwood, 83 Conn. App. 452, 477, 850
A.2d 234 (2004), cert. denied, 286 Conn. 914, 945 A.2d
978 (2008). The court heard sufficient evidence that, if
credited, would support its finding that the defendant’s
actions created a risk of injury to a child under the
age of sixteen. Y testified that the defendant bought
Smirnoff green apple and strawberry liquor, and pro-
vided the alcoholic beverages to her. The fact that Y
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 minor chooses not to drink
would render § 53-21 an absurdity.
In addition, the present case is akin to State v. March,
39 Conn. App. 267, 664 A.2d 1157, cert. denied, 235
Conn. 930, 667 A.2d 801 (1995), where a defendant was
convicted of risk of injury to a child for giving a four
year old a cup containing rum and soda. Despite the
difference in age between Y and the victim in March,
the circumstances are very similar. In March, the court
upheld the defendant’s conviction of risk of injury for
providing alcohol to a child under the age of sixteen.
Id., 276. In March, as in the present case, the child was
not impaired after drinking the alcohol. There is no
requirement, however, 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. See State v. Davila, supra, 75 Conn.
App. 437. In focusing on such acts, the court was pre-
sented with evidence that the defendant e-mailed Y,
under the guise of Estephan Elson and Elizabeth Elson,
in order to encourage Y to have sexual intercourse with
him. Thus, in construing the evidence in the light most
favorable to sustaining the finding of guilty, we con-
clude that the court reasonably could have credited the
testimony and the evidence that the defendant bought
and provided alcohol to his minor daughter as a prelude
to sexually assaulting her.
From that evidence, the fact finder reasonably could
have concluded that the defendant’s act of providing
alcohol to a minor was an act likely to impair her health
or morals. The defendant’s claim that the evidence was
insufficient for a conviction of risk of injury thus fails.
II
The defendant next claims that the conviction of risk
of injury should be dismissed because the statute, as
applied, is void for vagueness. This claim is unavailing.
‘‘We begin with the applicable standard of review
and general governing principles. 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 dem-
onstrate that [a statute] is unconstitutionally vague as
applied to him, the [defendant] therefore must . . .
demonstrate beyond a reasonable doubt that [he] had
inadequate notice of what was prohibited or that [he
was] the victim of arbitrary and discriminatory enforce-
ment. . . .
‘‘[T]he void for vagueness doctrine embodies two
central precepts . . . . First, because we assume that
man is free to steer between lawful and unlawful con-
duct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws
may trap the innocent by not providing fair warning.
. . . [A] law forbidding or requiring conduct in terms
so vague that men of common intelligence must neces-
sarily guess at its meaning and differ as to its application
violates due process of law. . . .
‘‘Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards
for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and dis-
criminatory applications. . . . Therefore, a legislature
[must] establish minimal guidelines to govern law
enforcement. . . .
‘‘[M]any statutes proscribing criminal offenses neces-
sarily cannot be drafted with the utmost precision and
still effectively reach the targeted behaviors. Consistent
with that acknowledgment, the United States Supreme
Court has explained: The root of the vagueness doctrine
is a rough idea of fairness. It is not a principle designed
to convert into a constitutional dilemma the practical
difficulties in drawing criminal statutes both general
enough to take into account a variety of human conduct
and sufficiently specific to provide fair warning that
certain kinds of conduct are prohibited. Colten v. Ken-
tucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d
584 (1972) . . . .’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Winot, 294
Conn. 753, 758–61, 988 A.2d 188 (2010).
The defendant did not preserve this issue at trial and
now seeks review under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).11 We conclude that the record
is adequate to review this claim and that it is of constitu-
tional magnitude. The claim fails under the third prong
of Golding, however, because the defendant failed to
establish beyond a reasonable doubt that risk of injury
to a child is unconstitutionally vague as applied to his
conduct. He therefore has not established that a clear
constitutional violation exists.
The defendant was charged with violating § 53-21
(a) (1). The defendant argues, however, that because
General Statutes § 30-86 (b) (3) (C)12 allows parents to
provide alcohol to their children while the parent is
present, he lacked fair warning that his conduct was
criminal under the risk of injury statute, § 53-21. He
concludes that the risk of injury statute is void for
vagueness as applied to him. The state contends that
a person of ordinary intelligence would know that,
under the factual circumstances presented by this case,
namely, providing one’s minor daughter with alcohol
as an antecedent to sexually assaulting her, is illegal.
‘‘Our courts have determined that minors are not
competent to assume the responsibility of consuming
alcohol.’’ State v. Springmann, 69 Conn. App. 400, 409,
794 A.2d 1071, cert. denied, 260 Conn. 934, 802 A.2d 89(2002). Specifically, § 30-86 was ‘‘manifestly directed at
the eradication, or minimally at the discouragement,
of alcoholic indulgence by minors who, lacking self-
discipline, fortitude and discretion, and uninformed by
their own observation and the experience gained by
maturing years, were most likely to fall into habits of
dissolute excess and vice, with grave injury to them-
selves . . . .’’ State v. Hughes, 3 Conn. Cir. Ct. 181, 189,
209 A.2d 872, cert. denied, 152 Conn. 745, 209 A.2d
189 (1965).
As we previously have noted, however, providing
alcohol to a minor child is appropriate in certain circum-
stances, such as in religious ceremonies.13 However, ‘‘an
adult is required to exercise caution when permitting
minors to consume alcohol.’’ State v. Springmann,
supra, 69 Conn. App. 409. If there is a question with
respect to the admissibility of providing alcohol to a
minor, ‘‘[t]he mischief which the statute was designed
to remedy is an important guide in ascertaining its
meaning.’’ (Internal quotation marks omitted.) State v.
Hughes, supra, 3 Conn. Cir. Ct. 197.
The application of § 53-21 to the defendant’s conduct
is constitutional because the statute is not vague as
applied to him. First, the defendant was on notice that
providing alcohol to a minor could subject him to prose-
cution under § 53-21. See State v. Springmann, supra,
69 Conn. App. 400; State v. March, supra, 39 Conn. App.
267, State v. Mancinone, supra, 15 Conn. App. 251.
Second, § 30-86 does not apply under the factual circum-
stances of this case. An as applied claim focuses on
‘‘the constitutionality of the challenged statute is to be
determined by the statute’s applicability to the particu-
lar facts at issue.’’ (Emphasis added.) State v. Perruc-
cio, supra, 192 Conn. 158. A reasonable person would be
on notice that providing alcohol to Y under the factual
circumstances of the case, an act that preceded a sexual
encounter with a child, was likely to impair her health
or morals. The present situation was not one where the
defendant was permitting his minor daughter to drink
a small amount of alcohol served at the dinner table
or in observation of a religious ceremony. Rather, the
defendant provided alcohol to his daughter prior to
sexually assaulting her.14
Moreover, even if the defendant was permitted to
provide alcohol to Y under § 30-86, § 53-21 (a) (1) specif-
ically provides that the statute ‘‘was intended to apply
to any conduct, illegal or not, that foreseeably could
result in injury to the health of a child.’’ (Emphasis
added.) State v. Scruggs, supra, 279 Conn. 724–25.
‘‘[D]eliberate indifference to, acquiescence in, or the
creation of situations inimical to the minor’s moral or
physical welfare . . . and . . . acts directly perpe-
trated on the person of the minor and injurious to [the
victim’s] moral or physical well-being’’ constitute
behavior that is prohibited by § 53-21. (Internal quota-
tion marks omitted.) State v. March, supra, 39 Conn.
App. 274–75. Therefore, the defendant’s act of providing
alcohol to Y prior to sexually assaulting her could fore-
seeably result in injury to her health, thus rendering
§ 30-86 inoperable.
A person of ordinary intelligence would be on notice
that the aforementioned conduct is illegal. The defen-
dant, therefore, has not demonstrated beyond a reason-
able doubt that he had inadequate notice of what was
prohibited under our Penal Code. The defendant’s claim
that the risk of injury statute is void for vagueness
thereby fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
In his appellate brief, the defendant also alleged that the conviction of
sexual assault in the second degree and sexual assault in the third degree
should be vacated because the relevant statutes are void for vagueness. The
defendant withdrew this claim at oral argument, and we therefore do not
address it.
3
Y lived with her mother until such time in 2008.
4
Y’s exact testimony was ‘‘between [her vagina] lips,’’ which, as shall be
further discussed, is defined as the labia majora.
5
Y also testified about later sexual encounters with the defendant. The
defendant was found not guilty of those charges, and the state did not appeal
from those determinations.
6
By count, the court sentenced the defendant to: thirteen years incarcera-
tion, with twenty-five years probation on the first count, sexual assault in
the second degree; on the second and third counts, sexual assault in the
third degree and risk of injury to a child, respectively, the court sentenced
the defendant to five years concurrent with the first count; on the fourth
count, sexual assault in the second degree, the court sentenced the defendant
to thirteen years, execution suspended after seven years, and twenty-five
years probation consecutive to the first count; and on counts five, six, and
seven, sexual assault in the third degree and two counts of risk of injury
to a child, the court sentenced the defendant to five years concurrent with
the first count.
7
The defendant claims that the evidence was insufficient evidence with
respect only to counts four and five of the substitute information. Count
four charged the defendant with one count of sexual assault in the second
degree in violation of § 53a-71 (a) (1), alleging that he ‘‘did engage in sexual
intercourse, to wit: penis to clitoris with another person to wit: [Y] and such
person is thirteen years of age or older but under sixteen years of age.’’
Count five charged the defendant with one count of sexual assault in the
third degree in violation of § 53a-72a (a) (2), alleging that he ‘‘did engage
in sexual intercourse with another person, to wit: [Y] whom the [defendant]
knew to be related to him, to wit: his daughter.’’
8
‘‘[M]edical experts refer to the labia as an opening that can be pene-
trated.’’ State v. Albert, supra, 252 Conn. 817 n.22. ‘‘Stedman’s Medical Dic-
tionary defines labia as the . . . two rounded folds of integument forming
the lateral boundaries of the . . . external genitals . . . . [I]t is clear that
the labia majora form the boundaries of a fissure, or opening, associated
with the female genitals.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Id., 809 n.17.
9
Indeed, the defendant states in his brief that ‘‘[i]f one just follows the
words [Y] used on the [witness] stand, sufficient evidence can be found.
However, if one goes with common sense and anatomy . . . the evidence
is insufficient.’’ On appeal, we do not substitute our own judgment for that
of the finder of fact if there is sufficient evidence to support the fact finder’s
determination of guilt. See State v. Madore, 96 Conn. App. 271, 283, 900
A.2d 64, cert. denied, 280 Conn. 907, 907 A.2d 93 (2006). In the present case,
we conclude that, upon the facts so construed and the inferences reasonably
drawn therefrom, the court reasonably could have found sufficient evidence
of penetration.
10
In doing so, the defendant claims that the present case is similar to
State v. Patterson, supra, 131 Conn. App. 65. In that case, the defendant
was charged with risk of injury to a child for placing a small amount of hot
sauce in a cup and leaving it out where a two year old victim consumed it.
Id., 69. In Patterson, we held that ‘‘[a]lthough a reasonable finder of fact
could infer from his or her own observations and experience that hot sauce is
spicy, and therefore inherently unpalatable to many individuals, one cannot
assume that a small quantity is likely to result in injury absent additional
evidence.’’ Id., 80. The defendant compares that situation with the present
case and argues that the state proved only that Y was given a small quantity
of alcohol and that, in order to convict the defendant of risk of injury, the
state was required to prove the actual amount of alcohol provided to Y. We
disagree. Patterson is inapplicable to the present case because ‘‘[u]nlike
marijuana and other drugs, hot sauce is not a controlled substance.’’ Id.
Providing alcohol to minors is an equally inapposite comparison to hot
sauce, as we have previously noted that giving a teenage girl liquor involves
furnishing the underage victim with a mind-altering substance, which is
harmful to her physical health and induces her to lose self-control. See State
v. Mancinone, 15 Conn. App. 251, 277, 545 A.2d 1131, cert. denied, 209 Conn.
818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103
L. Ed. 2d 194 (1989).
The defendant then briefly argues that he is allowed to provide alcohol
to his daughter under General Statutes § 30-86. This statute is inapplicable
in the present case, as fully discussed in part II of this opinion.
11
‘‘[A] defendant can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are met: (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 clearly exists and clearly 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. In the absence of any one of these conditions, the
defendant’s claim will fail.’’ (Emphasis omitted; footnote omitted.) State v.
Golding, supra, 213 Conn. 239–40.
12
General Statutes § 30-86 (b) (3) provides in relevant part: ‘‘The provisions
of this subsection shall not apply . . . (C) to a shipment or delivery made
to a minor by a parent, guardian or spouse of the minor, provided such
parent, guardian or spouse has attained the age of twenty-one and provided
such minor possesses such alcoholic liquor while accompanied by such
parent, guardian or spouse.’’
13
‘‘The sacramental use of wine has been an integral part of the ceremonial
ritual of many of our religious sects from early colonial times. In enacting
the predecessor of § 30-86, it is to be presumed that the legislature was
aware of such religious rites and customs and there was no need to state
as an exception to the literal operation of the law activities such as these,
and other wholesome social customs mentioned by the defendants, in order
to exclude them from the law’s proscription. Nor, may it be said, is the law
powerless to exert its force in situations where, under guise of religion,
indulgence is sought in acts offensive to law and morality alike, in the
disingenuous belief that they are constitutionally protected.’’ State v. Hughes,
supra, 3 Conn. Cir. Ct. 196–97.
14
The defendant compares the present case to State v. Perruccio, supra,
192 Conn. 154. This case is plainly distinguishable. The court in Perruccio
found that § 53-21 was unconstitutionally vague as applied to the defendant
because consensual sexual relations were permissible under General Stat-
utes § 53a-73a (a) (1) (A), as the girl’s age of fifteen years allowed her to
consent to sexual activity at the time the events occurred. Id., 163–65. The
court thus concluded that fair notice of the statutory requirements of § 53-
21 was not afforded to the defendant because the activity was permitted
under another statute. Perruccio is not applicable in the present case
because, as previously stated, the defendant’s activities, under these factual
circumstances, were not permitted under § 30-86. See State v. Springmann,
supra, 69 Conn. App. 407–408.