source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    MICHAEL NEVERS v. MONIQUE VAN ZUILEN ET AL.
    (AC 15778)
    Schaller, Hennessy and Dranginis, Js.
    Argued February 25
    officially released September 30, 1997

      Steven P. Kulas, for the appellant (plaintiff).

      SuzannahNigro, with whom, on the brief, were Lawrence F. Reilly and Michael P. Bowler, for the appellee (named defendant).
   Opinion

DRANGINIS, J.

The plaintiff appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendant. The underlying cause of action arose from an automobile accident in which the plaintiff sustained personal injuries. The contested issue of fact was whether the plaintiff or the defendant was the operator of the vehicle when it crashed into a bridge abutment. On appeal, the plaintiff claims that the trial court improperly (1) failed to declare a mistrial upon the misconduct of defense counsel during cross-examination of the plaintiff and final arguments, (2) failed to give a Secondino charge, (3) instructed the defendant on how to testify, and (4) admitted hearsay evidence contained in a medical report as to the identity of the motor vehicle driver. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 15, 1989, the defendant borrowed her father’s car to drive from her home in Windsor to Beacon Falls in order to spend the evening with her then boyfriend, the plaintiff. The defendant was seventeen years old, and the plaintiff was twenty-two years old. On that evening, the plaintiff was wearing a white leather jacket. The plaintiff and the defendant, accompanied by a male friend, went to a liquor store, where one of the males bought a case of beer. They drank the beer at a variety of nearby locations. When their supply of beer was exhausted, another friend gave them more beer and a bottle of champagne, which they also consumed.

The defendant allowed the plaintiff to drive the vehicle due to her intoxication and her lack of familiarity with the area. As the plaintiff made his way to his home, he lost control of the vehicle and crashed. The defendant was found in the passenger’s seat and had to be extricated from the vehicle. The plaintiff was found on the porch of a nearby home by the state trooper investigating the crash, Jose Trujillo.

At the accident scene, the plaintiff and the defendant were consistent in their statements that the plaintiff had been the driver of the automobile. Trujillo, however, did not observe injuries to the plaintiff that would have been consistent with the driver having hit the steering wheel, and he saw a white leather jacket in the driver’s seat that he assumed belonged to a female. Thus, Trujillo was not convinced that the plaintiff was the driver. In an attempt to discover the truth, Trujillo lied to the defendant and told her that the plaintiff had said that it was the defendant who was the driver. Knowing that the plaintiff had had some difficulties with the law, and wanting to protect him, the defendant said that she was the driver. That statement to Trujillo was the only statement the defendant made indicating that she was the operator of the vehicle.

After a jury trial, a verdict was returned in favor of the defendant. The plaintiff filed a motion to set aside the verdict and, after a full hearing, the trial court denied the motion. This appeal followed.

I

The plaintiff first claims that the trial court improperly failed to declare a mistrial as a result of defense counsel’s continual references to the plaintiff as a felon during both cross-examination and final arguments. The plaintiff further argues that defense counsel’s pervasive misconduct deprived him of a fair trial, and, thus, the trial court improperly denied his motion to set aside the verdict. We disagree.

Certain additional facts are necessary to our resolution of this claim. At trial, defense counsel asked the defendant whether she had told Trujillo that she had been driving the automobile at the time of the accident. The defendant answered in the affirmative. When asked why she had said that, the defendant responded that she had wanted to protect the plaintiff, “because he’d get in trouble because he had a [conviction for driving while intoxicated].” The plaintiff objected to that testimony on the grounds of relevancy and prejudice. Outside the presence of the jury, the court held a hearing on the admissibility of the testimony. At the conclusion of the hearing, the trial court ruled that the defendant could testify in front of the jury that the plaintiff had told her that his motor vehicle record was such that it would get him into trouble if he was found to be the operator of the car, but that she could not testify with respect to his specific prior arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs.

Upon the return of the jurors to the courtroom, the trial court instructed them to disregard absolutely, not to consider and to strike from their minds all of the defendant’s prior testimony regarding any previous conviction, record or specific charge, such as driving while intoxicated, related to the plaintiff. Defense counsel then asked the defendant why she had told Trujillo that she was the driver, and the defendant responded that it was “[b]ecause [she] thought that [the plaintiff] would be in more trouble than she would be in because of his past record and plus because [her] parents would be really upset if [she] let him drive.”

During his cross-examination of the plaintiff, defense counsel asked him whether he was “aware that providing a minor with alcohol is a felony in Connecticut?” The plaintiffs objection to the question was sustained, and the trial court immediately gave the jury a curative instruction.

Defense counsel also asked the plaintiff whether he had reported to the Internal Revenue Service certain cash income that he had earned while working in 1989. The plaintiff objected to that question. The trial court excused the jury and, after a hearing, overruled the objection and allowed the question, based on Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964), and the question’s relevance to the witness’ credibility and veracity. Upon the jury’s return, defense counsel once again asked the plaintiff whether he had reported the income to the Internal Revenue Service, and the plaintiff responded that he had not. At the conclusion of the plaintiffs case, the plaintiff moved for a mistrial based on defense counsel’s improper questions.

Defense counsel referred to the plaintiffs admitted tax evasion in his final argument, stating that “[the defendant] lies on his tax returns. ... He earns money in 1989, right at the time of the accident and admits to you, before the jury, admits in open court that he didn’t report his income to the IRS .... So I submit to you that when you consider his testimony, you’ve really got to take it with a grain of salt.” At the conclusion of defense counsel’s closing argument, the plaintiff renewed his motion for a mistrial on the ground that defense counsel’s accusation of criminal tax evasion by the plaintiff constituted prejudicial misconduct. The trial court denied the motion for a mistrial. The plaintiff reiterated his objections to defense counsel’s improper questioning and arguments in his motion to set aside the verdict.

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 635, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). The burden is on the plaintiff to establish that, in the context of the proceedings as a whole, the questions and arguments were so prejudicial that they deprived him of a fair trial. See id., 636.

Applying this standard of review to the plaintiffs claim, we conclude that the trial court did not abuse its discretion in denying the plaintiffs motion for mistrial. First, the defendant’s testimony that she told the state trooper she was the driver because she feared that the plaintiff would get into trouble because of his driving record was relevant to the defendant’s state of mind at the time of the accident. See State v. Brokaw, 183 Conn. 29, 31-33, 438 A.2d 815 (1981). Moreover, any potential prejudice to the plaintiff resulting from the defendant’s testimony was completely dissipated by the trial court’s prompt delivery of a clear and concise curative instruction to the jury. See State v. Jones, 44 Conn. App. 338, 349-50, 689 A.2d 517 (1997). “In the absence of a clear indication to the contrary, [jurors] are presumed to follow the instructions that they are given.” State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

Second, the plaintiff immediately objected to defense counsel’s question regarding whether the plaintiff was aware that providing alcohol to a minor was a felony, and the objection was sustained by the trial court. Once again, the court promptly gave a curative instruction, and we must assume that the jurors followed the instructions that they were given. See State v. Jones, supra, 44 Conn. App. 349-50; State v. Guess, supra, 39 Conn. App. 235. “Even if the [question was] improper, as the trial court apparently decided [it was], the fact that the [question was] asked is not enough to deprive the defendant of a fair trial, particularly where the court gave an appropriate cautionary instruction to the jury.” (Internal quotation marks omitted.) State v. Lasky, supra, 43 Conn. App. 636.

Furthermore, the trial court did not abuse its discretion in permitting the testimony regarding the plaintiffs tax evasion. “To attack the credibility of a witness, inquiry may be made, in the discretion of the trial court, as to particular acts of misconduct tending to show a lack of veracity even though such evidence may be irrelevant to the issues in the case.” State v. Sharpe, 195 Conn. 651, 658, 491 A.2d 345 (1985). Moreover, our Supreme Court has held that evidence regarding a witness’ cheating on his income taxes has “a logical tendency to indicate a lack of veracity.” Id.

Finally, in analyzing defense counsel’s reference to the plaintiffs tax evasion in his closing argument, “we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

Here, the trial court not only expressly found that defense counsel’s remarks were insufficiently prejudicial to warrant a mistrial, it also concluded that they were not sufficiently prejudicial to require a curative instruction. The trial court’s ruling “is entitled to weight because of the vantage point from which it can obseive and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful.” State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).

Our review of the record, therefore, convinces us that in light of the proceedings as a whole, defense counsel's remark concerning the plaintiffs tax evasion was a brief and isolated incident that did not rise to the level of egregious misconduct and did not impact negatively on the fairness of the trial. See State v. Lasky, supra, 43 Conn. App. 629.

We conclude that the plaintiff has failed to establish that he was prejudiced by defense counsel’s questions or isolated remarks during closing arguments, and that he failed to establish that the trial court abused its discretion in denying his motion for a mistrial.

II

The plaintiff next claims that the trial court improperly refused to give a Secondino jury instruction regarding the defendant’s failure to produce Lisa Mongillo. We are unpersuaded.

At trial, the defendant testified that the plaintiff admitted in front of the defendant and a few of her friends that he was driving the car at the time of the accident. The defendant also testified that, on one occasion, the plaintiff jokingly commented to both the defendant and her friends that, because the defendant had told the trooper that she was driving, maybe he should sue her. When asked at trial who had heard these comments, the defendant listed Mongillo, a girl named Sandy, and the plaintiffs friend John. The defendant explained that she did not know where Sandy lived, and that although she thought Mongillo lived somewhere in Hartford, she was no longer in contact with her and did not know exactly where she lived.

The trial court did not include a Secondino instruction concerning Mongillo in its jury charge. The plaintiff excepted to the jury charge and requested that the trial court give a Secondino charge regarding Mongillo. The trial court refused, explaining that the plaintiff had failed to prove that Mongillo was available.

“The well established Secondino rule provides that the failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . The party seeking the Secondino adverse inference instruction bears the burden of showing that he is entitled to it. . . . That party must demonstrate that the witness (1) is available, (2) is one whom the party would naturally produce, and (3) has material or substantial testimony that is not cumulative or inferior to that which was offered. . . . All of these requirements must be strictly complied with.” (Citations omitted; internal quotation marks omitted.) Martin v. Samulis, 24 Conn. App. 85, 90-91, 585 A.2d 1255 (1991). “Whether an absent witness has superior or peculiar' information and whether an adverse inference can be drawn is a question of fact for the trier. . . . This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. ” (Internal quotation marks omitted.) State v. Battle, 39 Conn. App. 742, 746, 667 A.2d 1288 (1995), cert. denied, 237 Conn. 922, 676 A.2d 1375, cert. denied, 519 U.S. 955, 117 S. Ct. 373, 136 L. Ed. 2d 263 (1996).

“Before a negative inference can be drawn from a party’s failure to produce a particular witness, it must be shown that the party was able to procure the witness’ physical presence in court.” Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986). The defendant testified that she was no longer in contact with Mongillo. The last the defendant heard was that Mongillo lived somewhere in Hartford, but the defendant did not know where. This testimony falls far short of demonstrating that the defendant was able to procure Mongillo’s physical presence in court. See id., 75-76. The plaintiff, thus, failed to prove that Mongillo was available.

Moreover, Mongillo’s testimony would have been both cumulative and inferior to what was already offered at trial. All of the plaintiffs statements allegedly overheard by Mongillo were made in the defendant’s presence and were testified to by the defendant at trial. Furthermore, there was evidence presented at trial that the plaintiff also admitted being the driver of the car to Trujillo as well as to emergency medical technicians and members of the hospital staff. “A prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge.” (Internal quotation marks omitted.) State v. Battle, supra, 39 Conn. App. 746; Beverly v. State, 44 Conn. App. 641, 650, 691 A.2d 1093 (1997); State v. Owen, 40 Conn. App. 132, 139, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996).

We conclude, therefore, that the trial court properly refused to give a Secondino charge with regard to Mongillo.

Ill

The plaintiff finally argues that the trial court improperly admitted nonmedical hearsay testimony contained in an emergency medical report. Specifically, the plaintiff argues that while the defendant’s emergency medical report was admissible pursuant to General Statutes § 52-174 (b), under Aspiazu v. Orgera, 205 Conn. 623, 627, 535 A.2d 338 (1987), nonmedical information contained in the report, such as the identity of the motor vehicle driver, was inadmissible. We disagree.

In Aspiazu, our Supreme Court held that “[o]nce the [emergency medical] report is ruled admissible under the statute, any information that is not relevant to medical treatment is subject to redaction by the trial court.” Id., 628. The Supreme Court, however, further held that “[t]he burden is on the objecting party to specify objections to the inadmissible parts of the report.” Id.

Here, the plaintiff initially objected to the entire emergency medical report on the grounds that the report was cumulative and irrelevant. The plaintiff, however, never specifically objected to those portions of the report that were not relevant to the medical treatment of the parties, such as the identity of the driver. Thus, un der Aspiazu, the plaintiff failed to sustain his burden of putting the trial court on notice of the specific non-medical sections of the report that should be redacted, and, therefore, the trial court’s admission of those portions was not improper.

Moreover, the nonmedical portion of the defendant’s emergency medical report in which it was noted that the defendant stated that she was not the driver was admissible as a prior consistent statement. “[I]f a witness has been impeached on the basis of bias, motive or interest, prior consistent statements may be admitted to rehabilitate his damaged credibility, if . . . the prior consistent statement . . . was made before the alleged bias, motive or interest arose. State v. Dolphin, 178 Conn. 564, 570-71, 424 A.2d 266 (1979).” State v. Jeffrey, 220 Conn. 698, 713-14, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). Here, the defendant told the emergency medical technician that the plaintiff was the driver, and the technician recorded the plaintiffs statement in his report before Trujillo’s lie to the defendant caused her to say that she was the driver in order to protect her boyfriend.

Furthermore, the portion of the defendant’s emergency medical report that indicates that the plaintiff was the motor vehicle operator was merely cumulative of other evidence presented at trial. All of the emergency medical technicians, including the technician who wrote the report, testified that the defendant told them that the plaintiff was the driver. In addition, the defendant testified that the plaintiff was the driver, and introduced numerous prior admissions by the plaintiff that he was the driver. Moreover, there was evidence presented at trial that the defendant told the hospital staff that the plaintiff was the driver. Furthermore, there was physical evidence presented at trial that the defendant’s hair was embedded in the broken glass of the damaged windshield on the passenger side and that the emergency medical technicians extricated her from the passenger seat. The evidence must be more than merely cumulative to constitute reversible error. See Swenson v. Sawoska, 215 Conn. 148, 155, 575 A.2d 206 (1990). The plaintiffs claim, therefore, is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       There were two defendants named in this action, Monique Van Zuilen and Corporate Landscaping, Inc. At the conclusion of the plaintiffs case, the trial court directed a verdict in favor of Corporate Landscaping, Inc. Corporate Landscaping, Inc., is not a party to this appeal. All references in this opinion to the defendant are to Van Zuilen.

        Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

       This evidentiary issue was not preserved at trial, is not of constitutional magnitude and does not affect the fairness of the trial. We, thus, decline to reviewit. See Practice Book § 4061; State v. Robinson, 227 Conn. 711, 739-11, 741 n.22, 631 A.2d 288 (1993).

       The defendant also argues that the plaintiffs brief is fatally flawed in that there are no references to the transcript. See Practice Book § 4065 (d). We conclude, however, that the defendant’s brief, in conjunction with the attachments to the plaintiffs brief, presents adequate references to the transcript to permit appellate review.

       The trial court’s curative instruction to the jury was as follows: “Ladies and gentlemen, I instruct you that the last couple of questions that were asked by counsel in connection with whether or not a crime was committed are to be disregarded by you and you may not consider them in your deliberations on this case and your consideration of this case.”

       See footnote 5.

       We note that Mongillo’s identity was known by both the plaintiff and the defendant.

       General Statutes § 52-174 (b) provides in pertinent part: “In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on ihe report is that of the treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist and that the report and bill were made in the ordinary course of business. ...”


author: LANDAU, J.

text:
    PHILIP F. WIELER II v. COMMISSIONER OF CORRECTION
    (AC 16403)
    Landau, Spear and Hennessy, Js.
    Argued September 16
    officially released October 21, 1997

      John R. Williams, for the appellant (petitioner).

      Ronald G. Weller, assistant state’s attorney, with whom, n the brief, were Patricia Swords, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

LANDAU, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to this court and (2) dismissed his claim of ineffective assistance of counsel.

Having reviewed the record and briefs and having heard from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99-100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petition was predicated on a factual review of the petitioner’s claims that his attorney failed (1) to inform him as to the essential elements of the crime of embezzlement, (2) to advise him that he had no factual or legal defenses to the charges against him, (3) to engage in plea bargaining as intensively as possible and (4) to advise him adequately to accept the plea offer.

The habeas court did not credit the petitioner’s testimony and specifically found that he had failed to sustain his burden of proving that counsel’s performance was deficient and that the petitioner suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The trial court found that the attorney’s representation did not fall below an objective standard of reasonableness. See id., 688. Further, the court was unpersuaded, after an evidentiary hearing, that the result of the proceeding would have been different but for the attorney’s belief as to the elements of the crime of embezzlement. See id., 694.

“ ‘This court; does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “ ‘Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . .’ State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 120 (1996).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The habeas court did restore the petitioner’s right to request sentence review by the sentence review division of the Superior Court.

       The court stated in its memorandum of decision that it found “some irony in a habeas claim brought by a petitioner who rejects his counsel’s advice to plead guilty, is then found guilty following a fair trial, and who later brings a claim asserting, in essence, that he relied on his counsel’s erroneous view of the law in rejecting his counsel’s advice.” The court further stated that “the court does not find that the petitioner has proven by credible evidence that he would have followed his lawyer’s advice and entered a guilty plea but for [his attorney’s] erroneous view of the law of larceny.”


author: PER CURIAM.

text:
    REGINALD R. WATKINS v. COMMISSIONER OF CORRECTION
    (AC 16503)
    Foti, Landau and Schaller, Js.
    Argued September 19
    officially released October 21, 1997

      Reginald R. Watkins, pro se, the appellant (petitioner).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly denied his claim of ineffective assistance of counsel. After reviewing the record and briefs and hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right.

The habeas court considered the petitioner’s claims that his counsel failed (1) to object to or to prevent the consolidation of the six bank robbery charges or to construct a record for a future appeal, (2) to object to the jury charge that lacked an instruction on identification as an element of the crime of robbery or to submit a charge on the element of identification, and (3) to object to the jury charge permitting conviction if the defendant used force or threat of force where the state introduced no evidence of force.

The habeas court heard testimony from the petitioner and his attorney regarding the petitioner’s claims. The court did not credit the petitioner’s testimony and specifically found that he had failed to sustain his burden of proving that counsel’s performance was deficient and that he was prejudiced by the allegedly ineffective performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court concluded, in its memorandum of decision, that the “attorney’s testimony lent credibility to the fact that most of the complaints that the petitioner had revolved around the trial strategy. This strategy made sense to the [judge] . . . .”

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “ ‘Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . .’ State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 120 (1996). Further, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy. . . .’” Strickland v. Washington, supra, 466 U.S. 689; see also Johnson v. Commissioner of Correction, 222 Conn. 87, 98, 608 A.2d 667 (1992); Valeriano v. Bronson, 12 Conn. App. 385, 393-94, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).

We conclude that the habeas court had before it sufficient evidence to deny the petition for a writ of habeas corpus.

The judgment is affirmed.

       The habeas court also considered the petitioner’s claims that Ms attorney improperly (1) reacted to evidence regarding possibly inappropriate lineup procedures used by the police, and (2) failed to prepare an adequate argument in support of his oral motion for judgment of acquittal; however, the petitioner has not raised these issues on appeal.


text:
    IN RE CATRINA L.

    (AC 16553)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Argued September 15
    officially released October 21, 1997

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Carol A. Veroczi, for the appellee (respondent mother).

      Brian D. Russell, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

PER CURIAM.

The petitioner, the commissioner of children and families, appeals from the trial court’s judgment vacating an order of temporary custody and denying the petitioner’s motion to modify the disposition of protective supervision to an order of commitment. Due to procedural developments subsequent to the filing of this appeal, we conclude that there is no relief this court can afford to the petitioner and, therefore, the appeal is moot.

On February 23, 1996, pursuant to General Statutes § 46b-120, the trial court, Keller, J., adjudged Catrina L. to be an uncared, for special needs child. On March 20, 1996, the court ordered that the child be placed with her mother, subject to an order of protective supervision for nine months.

On September 3, 1996, the trial court, Teller, J., granted the petitioner’s motion for an ex parte order of temporary custody. On September 4, 1996, pursuant to Practice Book § 1041.1 (1), the petitioner filed a motion to modify the order of protective supervision to an order of commitment. The trial court consolidated the hearings on the validity of the order of temporary custody and the motion to modify the order of protective supervision. On September 26,1996, the trial court, Santos, J., vacated the order of temporary custody, denied the motion to modify and ordered that the child be returned to the mother, with protective supervision to remain in place until December 5, 1996. On appeal, the petitioner claims that the trial court prevented it from presenting its case fully and seeks a reversal of the trial court’s decision vacating the order of temporary custody and denying the motion to modify the disposition, and, implicitly, a remand for a hearing on the merits.

Subsequent to the filing of this appeal, the trial court, Maloney, J., granted a motion for an ex parte order of temporary custody on November 15, 1996, giving the child’s care and custody to the petitioner. Pursuant to Practice Book § 1041.1 (1), the petitioner filed a second motion to modify the order of protective supervision to an order of commitment. On November 20,1996, the trial court, Teller, J., affirmed the order of temporary custody and ordered that protective supervision remain in place until further order of the court. Presently, the motion to modify the continuing order of protective supervision to an order of commitment and the issue of the validity of the order of temporary custody are before the trial court. In light of those procedural developments, the petitioner, on September 11,1997, limited its request for relief on appeal to reversal of the trial court’s decision with no further order. The dispositive issue in this appeal is whether the subsequent granting of the order of temporary custody and the filing of the petitioner’s motion to modify the November 15, 1996 disposition render this appeal moot.

“ ‘Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits.’ . . .” Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505, 671 A.2d 844 (1996), quoting Bakerville Lumber & Construction Co. v. Planning & Zoning Commission, 38 Conn. App. 212, 213, 659 A.2d 758 (1995).

There is no practical relief that can be granted in the present appeal because the petitioner has received the redress sought. The petitioner sought reversal of the trial court’s decision vacating the order of temporary custody and denying the motion to modify the disposition. Since the filing of this appeal, however, the petitioner has been granted an order of temporary custody, and a hearing on the merits of the motion to modify the disposition is scheduled. Moreover, the petitioner implicitly recognizes the lack of practical relief available by limiting its request for relief to reversal with no further order. “[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992); Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).

The appeal is dismissed as moot.

       At oral argument, the petitioner explained that its reason for requesting reversal of the court’s denial of the motion to modify with no further order was to prevent the respondent from asserting the defense of collateral estoppel or res judicata, thereby preventing the petitioner from presenting evidence of the respondent’s actions during the period covered by the motion to modify. We can find no law which would support this reasoning.


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. JASON B.

    (AC 15323)
    Landau, Dupont and Shea, Js.

      Argued May 1
    officially released October 28, 1997

      Jon L. Schoenhom, with whom, on the brief, was Alice M. Sexton, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Herbert Carlson, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

SHEA, J.

Following a trial to the court, the defendant appeals from the judgment adjudicating him to be a youthful offender, in violation of General Statutes (Rev. to 1993) § 54-76b, by having committed the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), and injury or risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. He claims that the finding of a violation of § 53a-71 (a) (1) is incorrect because (1) that statute does not apply to him as he was not more than two years older than the victim, (2) it is unconstitutionally vague as applied to the circumstances of this case and (3) it deprives the defendant of equal protection of the law as guaranteed by the fourteenth amendment of the federal constitution. The defendant also maintains that the finding of a violation of § 53-21 must be reversed because (1) the evidence adduced by the state to prove the charge of risk of injury to a child was insufficient to establish his guilt and (2) that statute is unconstitutionally vague as applied to the conduct of the defendant on which the violation is based. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts from the evidence presented. Both the victim and the defendant were students at Enfield High School. The victim was the manager of the school football team, and the defendant was a player on the team.

On September 21, 1994, the victim attended football practice and performed her usual duties. The defendant also attended practice, but did not participate because of an injury. At the end of practice, the defendant offered the victim a ride to her home, and she accepted. The defendant also agreed to drive another player on the football team to his home.

The defendant drove toward the home of the other player, who occupied a rear seat of the car, and the victim sat in the front passenger seat. During the ride, the defendant and the other player made some remarks about the victim’s breasts. The defendant also said he intended to have the victim perform oral sex on him.

After leaving the other player at his home, the defendant drove around for a short while and finally entered a cemetery driveway. He drove to the rear of the cemetery and parked the car. He and the victim kissed for a while, and then he unzipped his pants. At trial the victim testified that the defendant forced her to perform fellatio, but the trial court concluded that the state failed to sustain its burden of proving beyond a reasonable doubt the element of compulsion.

On the date of the incident, September 21, 1994, the victim was fourteen years old, her birthday being August 16, 1980. The defendant was sixteen years of age, his birthday being May 9, 1978. The difference between their birthdays is two years, three months and seven days.

I

The trial court concluded that the defendant had violated the following provision of General Statutes § 53a-71: “(a) Aperson 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 two year s older than such person . . . .” The defendant maintains that, in common parlance, age differences are calculated by comparing the birth years of the persons involved, without regard to the days or months of their births, and, therefore, the age difference between him, bom in 1978, and the victim, bom in 1980, does not exceed two years. He also contends that the phrase “more than two years older” is ambiguous because of the provision of General Statutes § 1-1 (i) that “[t]he word ‘month’ shall mean a calendar month, and the word ‘year’ a calendar year, unless otherwise expressed.” Relying on the standard definition of calendar year as “ [t]he period from January 1st to December 31st, inclusive, of any year”; Ballentine’s Law Dictionary (3d Ed. 1969); the defendant argues that a sixteen year old person can never be more than two calendar years older than one of fourteen years, even though there may be more than twenty-four months between their birth dates. We agree with the defendant that, if there is ambiguity in § 53a-71 (a) (1), the construction most favorable to him must be adopted. State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986).

The term “calendar year,” by itself, is not free of ambiguity. Webster provides two definitions: “1: a period of a year beginning and ending with the dates which are conventionally accepted as marking the beginning and end of a numbered year (as Jan. 1 and Dec. 31 in the Gregorian calendar) 2: a period of time equal in length to that of the year in the calendar conventionally in use (as in the Gregorian calendar 365 days or when a Feb. 29 is included 366 days).” Webster’s Third New International Dictionary. Black’s Law Dictionary also provides two definitions: “The period from January 1 to December 31 inclusive. Ordinarily calendar year means 365 days except leap year, and is composed of 12 months varying in length.” Black’s Law Dictionary (6th Ed. 1990). Judicial interpretation of the term has produced a variety of results, some of which cannot be reconciled with either definition. See, e.g., Hawksley v. New Hampshire Interscholastic Athletic Assn., Inc., 111 N.H. 386, 387-88, 285 A.2d 797 (1971) (ineligibility suspension of high school athlete for one calendar year-beginning May, 1971, expired on December 31, 1971); In re Vernon’s Estate, 62 N.Y.S.2d 683, 684 (1946) (trust provision authorizing payment from trust principal of $5000 each calendar year construed to allow such payment to be made in each twelve month period following death of testator).

In any event, “[t]he provisions of [§ 1-1], concerning the construction of statutes, [were] not intended to limit the power of the legislature in the enactment of laws, nor to affect the construction of laws when enacted, where the legislative intent is clear.” Lew v. Bray, 81 Conn. 213, 217, 70 A. 628 (1908). “They are but legislative enactments and must yield to the later expression of the legislative will.” Atwood v. Buckingham, 78 Conn. 423, 426, 62 A. 616 (1905). “The letter of a statute cannot prevail against the plainly indicated intent of the legislature.” Brown’s Appeal, 72 Conn. 148, 150, 44 A. 22 (1899); see Spring v. Constantino, 168 Conn. 563, 572, 362 A.2d 871 (1975); Dostmann v. Zoning Board of Appeals, 143 Conn. 297, 300, 122 A.2d 19 (1956).

Although the term “years” as used in § 53a-71 (a) (1) is not ambiguous, the defendant contends that an ambiguity is created by § 1-1 (i), which declares that “the word ‘year’ [shall mean] a calendar year, unless otherwise expressed.” When viewed in the light of its evident purpose and legislative history, however, we conclude that § 53a-71 (a) (1) is not ambiguous. As the defendant concedes, the consequence of construing the statute to apply only when more than two calendar years have elapsed between the birth dates of the victim and the actor is to preclude its application to persons less than three years older than the victim. If the legislature contemplated that result, it chose a novel way of expressing its intention when it used the phrase “more than two years older.” “Furthermore, we note that if there are two possible interpretations of a statute and one alternative proves unreasonable or produces the possibility of bizarre results, then the more reasonable alternative should be adopted. . . . The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” (Citation omitted.) State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).

Section 53a-71 (a) (1) was enacted in 1993 as an amendment to a bill that lowered the age of consent in the statutory rape provision to sixteen years. Public Acts 1993, No. 93-340, § 2. The language of the amendment is similar to § 213.3 (1) of the Model Penal Code. The commentary on that provision of the code explains that the proposed exemption when the age disparity between the participants in sexual intercourse does not exceed the proposed limit was a response “to the problem of the imposition of liability on a person of contemporary age and experience by limiting liability to cases where the actor is at least four years older than the underage person.” A.L.I., Model Penal Code and Commentaries (1980) § 213.3 (1), comment, p. 385. The effect of the amendment was to render the person who is more than two years older than the other participant in sexual intercourse criminally hable while exempting a person less than two years older than his or her sexual partner from such liability.

In discussing the amendment, the legislators often used the phrase “within two years of age of each other” or its equivalent in referring to those exempt from criminal liability pursuant to the amendment. They noted such concerns as avoiding criminal records for young persons and the desirability of referring minors “less than two years apart in age” to the department of children and youth services (now the department of children and families).

The statute applies to sexual intercourse, consensual or not, when one participant is within the thirteen through fifteen age bracket and the other, on whom criminal liability is imposed, is more than two years older. The legislative purpose was to discourage older youths from having sexual relations with youths with less physical and mental development, maturity and experience. A two year age disparity was established as the maximum permissible to qualify for the exemption created by the amendment. The line of two years drawn by the legislature would be significantly distorted if calendar years were used in calculating the difference in ages of the participants. Persons bom after January 1 of any year would not begin their first calendar year until January 1 of the next year and could have almost a full year more of maturity than those bom in December of the same year, even though their ages in calendar years would be the same. Such an absurd result was never intended by the legislature, despite the provision in § 1-1 (i) that year means a calendar year. We must assume that the legislature intended that § 53a-71 (a) (1) should be applied uniformly when the age disparity exceeds two years as calculated on the basis of birth dates and did not intend to create a special method of calculating the disparity based on calendar years that would be advantageous to those bom early in a calendar year. We conclude that the term years as used in § 53a-71 (a) (1) does not mean calendar year but refers to a period of 365 days or 366 days in a leap year.

II

The defendant’s challenge to § 53a-71 (a) (1) on the ground that it is void for vagueness is based on the same claimed ambiguity we have discussed in part I. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). “[A] law forbidding or requiring conduct in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.” Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); see State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994); State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988).

As a sequel to his claim that the age disparity between him and the victim should be calculated in calendar years pursuant to § 1-1 (i), the defendant argues that, even if this court rejects that construction of § 53a-71 (a) (1), a person of common intelligence, especially a sixteen year old youth, might reasonably have concluded otherwise, at least prior to any judicial determination of the issue. The defendant does not claim that the statute is invalid on its face, but only that it is unconstitutionally vague as applied to him under the facts of this case. lie concedes that judicial construction of the statute will remove the ambiguity claimed and clarify the conduct prohibited. He maintains that the lack of some judicial gloss providing fair notice prior to his encounter with the victim renders the statute inapplicable to him.

“That ignorance or mistake of law will not excuse an act in violation of the criminal laws is a principle so universally accepted as to be axiomatic.” 21 Am. Jur. 2d 278, Criminal Law § 142 (1981). “A mistake of law . . . even if it is assumed to be honest, is not a valid defense.” State v. Tedesco, 175 Conn. 279, 288, 397 A.2d 1352 (1978). In this state, that doctrine has been modified by General Statutes § 53a-6 (b), but not in such a manner as to exempt the defendant from criminal liability. The circumstance that he was only sixteen years old is similarly not helpful because our statutes follow the common law rule that imposes such liability on offenders who have attained the age of fourteen years at the time of their crimes. See 21 Am. Jur. 2d 158, Criminal Law § 38 (1981); see also General Statutes § 46b-127.

We agree with the defendant that, except for first amendment cases, an appropriate test of vagueness is whether the law as applied to the circumstances of the case creates doubt about the legality of the defendant’s conduct. See In re John C., 20 Conn. App. 694, 696, 569 A.2d 1154 (1990). In this case, however, even if calendar years are used in calculating the ages of the defendant and the victim, the defendant remains more than two years older than the victim. Even if we assume that the term calendar year means exclusively the period beginning January 1 and ending December 31 of any year, the first calendar year of the defendant’s life began on January 1, 1979, approximately seven and one-half months after his birth on May 9, 1978, and ended on December 31, 1979. On the date of his encounter with the victim, September 21,1994, according to the defendant’s analysis, his age in calendar years would have been fifteen instead of sixteen.

If the same methodology is used in calculating the victim’s age, she would have been thirteen on that date instead of fourteen. Her first calendar year began on January 1, 1981, almost five months after her birth on August 16, 1980, and ended on December 31, 1981. On September 21, 1994, she would have completed only thirteen calendar years. The difference between her age and that of the defendant, however, would be two calendar years, three months and seven days, and he would still be more than two calendar years older. The conclusion of the trial court that the defendant had violated § 53a-71 (a) would remain undisturbed unless the phrase “more than two years older” can be construed to mean “more than three years older.” The defendant contends it should be so interpreted, but such a construction cannot be reconciled with the language of the statute.

We conclude that § 53a-71 (a) (1) is not unconstitutionally vague as applied to the defendant in this case.

Ill

The defendant’s final attack on the constitutionality of § 53a-71 (a) (1) is that “[t]here is no reason that consensual sexual activity between a fourteen [year old] and [a] sixteen year old should be treated differently than the same activity between a fourteen year old and one who is sixteen years and three months.” He claims that the statute “discriminates on the basis of age, i.e., within the class of sixteen year olds, and affects his fundamental right to privacy.” On those grounds, he claims a violation of the equal protection clause of the fourteenth amendment under which the “strict scrutiny test” must be applied to determine whether the statute is justified by a “compelling state interest.” He also claims that the different treatment under the statute accorded to sixteen year olds whose sexual partners are less than two years younger and those whose sexual partners are slightly more than two years younger does not survive the alternative “rational basis” test of validity under the equal protection clause.

The defendant misreads the statute in claiming that it subjects sixteen year olds as a class to discriminatory treatment. Section 53a-71 (a) (1) simply makes it a crime for any person to have sexual intercourse with a youth within the thirteen to fifteen years age bracket when the difference between their ages exceeds two years. There is no maximum age for the older person who engages in such an activity. All persons who have sexual relations with youths of thirteen to fifteen years and who are more than two years older than those youths are subject to criminal liability. Since persons of sixteen years have not been singled out by the statute for adverse treatment, they do not constitute a class, let alone a suspect class. See, e.g., State v. McDougal, 241 Conn. 502, 514, 699 A.2d 872 (1997).

With respect to the defendant’s claim that he has a fundamental right to have sexual relations with consenting partners, § 53a-71 (a) (1) impinges on that right only by precluding such activities with those within the thirteen to fifteen years bracket who are more than two years younger. That restriction is amply justified, however, by a compelling state interest and serves to moderate the severity of our former statutory rape statute, which contained no such exemption for persons having intercourse with anyone under the age of consent. There are many considerations that support the conclusion that the state has a compelling interest in restricting teenage sexual activity, some of which were mentioned by the legislators who approved the statute. The prevention of pregnancy, reduction of sexually transmitted diseases, and limitation of the opportunity of more sexually experienced persons to take advantage of those substantially younger are concerns of significant importance to society.

As for the argument that there is no rational basis for criminalizing consensual intercourse between youths falling minimally outside the two year age difference permitted by the statute, as in this case when the defendant is only three months and seven days beyond the age difference tolerated by § 53a-71 (a) (1), the same claim can be raised against any statute that draws a precise line based on age. We are not aware of any authority that has invalidated a statute simply because it makes no allowance for persons who exceed the statutory limit by only a few months.

We conclude that § 53a-71 (a) (1) does not violate the defendant’s constitutional right to equal protection of the laws.

IV

The defendant’s claim that the evidence was insufficient to support the finding of the trial court that he had violated § 53-21, which makes it a crime to injure or risk injury to or impair the morals of children under sixteen years of age, does not question the sufficiency of the evidence concerning any of the operative facts recited by the trial court in its memorandum of decision. This claim involves (1) the sufficiency of the third count of the information charging the defendant with the risk of injury offense and (2) the applicability of the risk of injury statute to the circumstances of this case in which the trial court found that the state had not proved compulsion beyond a reasonable doubt.

A

The third count of the information, accusing the defendant of being a youthful offender by violating § 53-21, alleged that he had “wilfully and unlawfully caused a child under the age of sixteen (16) years, namely [the victim], age 14, to be placed in a situation where her morals were likely to be impaired and did an act or acts likely to impair the morals of said child, namely, transporting her into an isolated area where he compelled her to engage in sexual intercourse and by engaging in sexual intercourse with her . . . .” (Emphasis added.) We agree with the state that the use of the conjunction “and” rather than “or” was appropriate for the purpose of alleging alternate ways of committing the same crime. State v. Chapman, 229 Conn. 529, 543, 643 A.2d 1213 (1994). The defendant claims, however, that the failure of the state to allege in the third count the difference in age between him and the victim deprived him of fair notice that he could be found guilty of risk of injury on the basis of that age difference. The second count of the information, charging sexual assault in the second degree in violation of § 53a-71 (a) (1), did set forth the dates of birth of the victim and the defendant and alleged further that he was more than two years older than she. The third count made no reference to the allegations of the second count as permitted by Practice Book § 618.

Our risk of injury statute, § 53-21, however, applies to “[a]ny person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation [that] . . . the morals [of such child are] likely to be impaired, or does any act likely to impair the . . . morals of any such child . . . .” Although the age of a victim must be less than sixteen, the statute establishes no age requirement for the actor, who may be “[a]ny person.” It was not essential, therefore, for the third count to specify the difference in the ages of the victim and the defendant. The defendant could not reasonably have read the information to charge him only with compelling the victim to engage in sexual intercourse because it also alleges that he committed the offense “by engaging in sexual intercourse with her.”

B

The defendant claims that § 53-21 does not apply to his conduct with the victim because § 53a-71 (a) (1) allows children “thirteen years of age or older but under sixteen years of age” to engage lawfully in consensual sexual intercourse with any person not more than two years older. He relies on State v. Perruccio, 192 Conn. 154, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), in which the court held that it would be unconstitutional to apply § 53-21 to a teacher who was found to have had sexual intercourse, which may have been consensual, with a fifteen year old student at a time when other provisions of the penal code indicated that a person of that age could lawfully consent to that activity. “[F]aced with the anomalous situation of a fifteen year old who may consent and willingly participate in sexual activity and still initiate the prosecution of her ‘partner’ under § 53-21,” the court determined that, if there was consent, that statute was inapplicable because the teacher would not have been provided with fair warning that his conduct was prohibited. Id., 164-65.

The defendant’s reliance on Perruccio is misplaced, however, because in this case there is no conflict between the statutes with respect to the age of consent. Both §§ 53-21 and 53a-71 (a) (1) apply to the protected class of children under sixteen years. Within that class the latter statute creates an exemption when the actor is not more than two years older than the person with whom sexual intercourse occurred. The defendant clearly does not qualify for that exemption because he is more than two years older than the victim. Perruccio would preclude the prosecution for a violation of § 53-21 of one who does qualify for the exemption if the prosecution is based solely on consensual intercourse.

The defendant argues that the victim’s morals were no more likely to be impaired, as alleged in the third count, by engaging consensually in sexual intercourse with him than by similar conduct with a younger person who was exempted under the statute. That argument overlooks the legislative history of the exemption provision for participants in sexual intercourse when the difference in their ages does not exceed two years. As mentioned previously, some legislators were concerned about giving young persons a criminal record and expressed a preference for referring those within the two year exemption to the department of children and families. No legislator contended that a person qualifying for the exemption would be less likely to impair the morals of a child. The resulting impairment of morals may well be the same whether the actor is more or less than two years older than the underage sexual partner. The legislature, nevertheless, might reasonably have concluded that the exemption was an appropriate response “to the problem of the imposition of liability on a person of contemporary age and experience.” A.L.I., Model Penal Code and Commentaries, supra, § 213.3 (1). The exemption was a recognition of the reality of teenage sexual relations in modem society and an attempt to ameliorate some of the consequences without removing entirely the legal barrier to sexual relations with those under the age of consent. In no way does it affect the prosecution for impairment of the morals of a child under sixteen years of age pursuant to § 53-21 of one who has engaged in sexual intercourse with an underage teenager more than two years younger.

V

The defendant’s claim that § 53-21 is unconstitutionally vague is grounded on the same requirement of our federal constitution discussed in part II in relation to the defendant’s claim that § 53a-71 (a) (1) is unconstitutionally vague. A penal statute must define the crime involved “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, supra, 461 U.S. 357.

The defendant claims that, because § 53a-71 (a) (1) legalizes sexual intercourse between the victim and anyone not more than two years older, the application of § 53-21 to such conduct would be unconstitutional. Although that issue is not before us, we agree that such a consequence would be consistent with Perruccio. The defendant, however, gains nothing by that argument because he does not qualify for the exemption in § 53a-71 (a) (1) as he is more than two years older than the victim. The vagueness that may render § 53-21 inapplicable to those exempted by § 53a-71 (a) (1) does not impair its applicability to the defendant.

On the date of the offense, there existed a significant judicial gloss with respect to § 53-21, ofwhichthe defendant must be presumed to have been aware, to the effect that the act of having sexual intercourse with a child under sixteen years of age was a violation of the statute, regardless of whether there was consent by the child. See State v. Plude, 30 Conn. App. 527, 535, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993); State v. Tirado, 21 Conn. App. 449, 457-58, 574 A.2d 252 (1990); In re John C., supra, 20 Conn. App. 697-99. The phrase “does any act likely to impair the . . . morals of any such child” includes deliberately touching the intimate parts of a child. See State v. Schriver, supra, 207 Conn. 463; see generally General Statutes § 53a-65 (8). A fortiori, it would include “sexual intercourse,” which § 53a-65 defines as including fellatio. See, e.g., State v. Anderson, 152 Conn. 196, 197, 205 A.2d 488 (1964). We conclude that at the time of the offense the defendant did have fair notice of the criminality of his conduct from the terms of the statute and from judicial opinions interpreting its terms. In relation to his conduct with the victim, therefore, § 53-21 was not void for vagueness.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 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 two years older than such person . . . .”

       General Statutes (Rev. to 1993) § 53-21 provides: “Injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-65 provides in relevant part: “(2) ‘Sexual intercourse’ means . . . fellatio . . . between persons regardless of sex. . .

       Section 213.3 (1) of the Model Penal Code provides in relevant part: “A male who has sexual intercourse with a female not his wife ... is guilty of an offense if: (a) the other person is less than [16] years old and the actor is at least [4] years older than the other person. . . .” Although the code recommends “at least [4] years older” as the permissible age difference between the actor and the other person, the commentary on § 213.3 (1) explains that “[t]he age is bracketed ... to indicate that the precise differential is one on which reasonable people may disagree.” A.L.I., Model Penal Code and Commentaries (1980) § 213.3 (1), comment, p. 386.

       “[The amendment] also modifies the strictness of our law when the sexual activity is between people [who are] within two years of each other.” 36 H.R. Proc., Pt. 29,1993 Sess., p. 10450, remarks of Representative Richard D. Tulisano.
      “[W]e deal with one class of sexual activity which is removed from the statutory rape sanctions in our current statutes and that is where children between the ages of 13 and 18 engage in sexual intercourse and they are within two years of each other in age.” 36 H.R. Proc., Pt. 29, 1993 Sess., pp. 10457-58, remarks of Representative Moira K. Lyons.

       “This amendment cleans up what we had intended originally in the language which [is] to ensure when intercourse occurs between two individuals, two minors who are less than two years apart in age, that the matter would be handled by DCYS . . . .” 36 S. Proc., Pt. 13, 1993 Sess., p. 4585, remarks of Senator George Jepsen.
      “There is deep concern among many people about establishing a criminal record and we are trying to avoid that. But once again we need to make a public statement that this General Assembly does not support early teenage sexual activity.” 36 H.R. Proc., Pt. 29, 1993 Sess., pp. 10463-64, remarks of Representative Reginald L. Jones, Jr.

       If courts were obliged to construe the many statutes using the word “year” as meaning calendar year exclusively, the ramifications would be significant. Some state employees entitled to a retirement salary at the age of sixty-five years would have to work almost one year longer in order to become eligible. See, e.g., General Statutes §§ 5-192Í and 51-50 (a). Whenever a statute contains an age requirement expressed in years, many persons who would fulfill that requirement if year meant simply twelve months, would not qualify if their ages were computed in calendar years.

       General Statutes § 53a-6 provides: “Effect of ignorance or mistake, (a) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitute a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification.

        “(b) Aperson shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless (1) the law provides that the state of mind established by such mistaken belief constitutes a defense, or unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”
      The defendant has never claimed that this statute provides him with any defense.

       The defendant’s argument is not entirely clear but his contention apparently is that the provision “more than two years older” in § 53a-71 (a) (1) is not satisfied unless the age difference is greater than three years, ignoring the three months and seven days of the difference between the ages of the victim and the defendant. Thus, he contends in his brief that § 53a-71 (a) (1) “does not apply to persons who are less than three years older than the minor victim.”

       Practice Book § 618 provides in relevant part: “The information shall be a plain, concise and definite written statement of the offense charged. . . . Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed the offense by one or more specified means. . . .”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. RONALD BENTON
    (AC 15434)
    Foti, Landau and SchaUer, Js.
    Argued September 19
    officially released November 4, 1997

      Arnold Amore II, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of four counts of sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), and one count of conspiracy to sell cocaine by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). On appeal, the defendant claims that the trial court violated his state and federal constitutional rights to a fair trial and due process of law by denying his motion to bifurcate the trial, thereby not allowing a separate hearing on the issue of drug dependency. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the months of June and July, 1993, Nicholas Spratto, a Southington police officer assigned to the statewide narcotics task force, was working in an undercover capacity. On June 9, 1993, he contacted Donald Redman, an individual known to the defendant for twenty-six years. Redman had been obtaining cocaine from the defendant since early that year. Redman met Spratto in Rockwell Park in Bristol where he was given $500 for the purpose of buying cocaine for Spratto. Redman met the defendant and gave him $400 in exchange for cocaine; Redman kept $100 for himself. Redman then returned to Spratto and gave him the cocaine, which was in the form of chunky white powder contained in a soap box.

On June 23, 1993, Spratto met Redman at the same location and gave him $500, which had been placed in a cigarette pack, for the purchase of cocaine. Again, Redman met the defendant and gave him $350 in exchange for cocaine, which Redman then turned over to Spratto. He kept $150.

On July 9,1993, Spratto and Redman met on a Bristol street and drove to another area in Bristol where Redman was given $450 for the purchase of cocaine. Redman left the car and walked to a convenience store where he met the defendant. He gave the defendant $300 in exchange for cocaine and kept $150. He then returned to the car and gave Spratto the cocaine.

On July 23, 1993, Spratto gave Redman $1700. Redman went to the defendant’s home, gave him $1550 and set up a second meeting place for the exchange of the cocaine. Redman then met the defendant in Page Park, they drove off in the defendant’s car, atid Redman was given the drugs. Subsequently, Redman delivered the cocaine to Spratto. The defendant was later arrested on a warrant and charged with various drug offenses.

On September 19, 1994, the defendant filed a motion to bifurcate the proceedings to allow separate jury consideration of the issue of drug dependency. On September 20, 1994, defense counsel requested that adjudication of his motion be delayed until the state had presented its case-in-chief. The trial court agreed, and on September 23, 1994, following the close of the state’s case, the defendant renewed his motion. The trial court denied the motion, stating only: “That has been rejected by our Supreme Court.”

The defendant argues that the issue of drug dependency is prejudicial and is not appropriately heard at trial because it requires that he either not present evidence of drug dependency, which subjects him to a five year minimum sentence if he is convicted for the sale, or present evidence of drug dependency, which is prejudicial as constituting prior bad acts. While the defendant argues that drug dependency should be considered only as a sentencing factor, he did concede during oral argument that a state legislature is empowered to determine what is a sentencing factor and what is an element of a crime. The defendant appears, therefore, to agree that a state legislature has the discretion to allow a mitigating factor, such as drug dependency, to constitute an exemption from liability similar to an affirmative defense, rather than a sentencing factor that requires a separate proceeding.

As a preliminary matter, we note that the record is inadequate for us to determine the exact reasons for the trial court’s denial of the defendant’s motion to bifurcate. Because the defendant alleges, however, that he was entitled to separate proceedings as a matter of law, and that the denial of his motion to bifurcate violated his federal due process rights under the fourteenth amendment to the United States constitution, we will consider his claim.

The defendant can point to no authority for the proposition that bifurcation is required by the federal due process clause. On the contrary, our Supreme Court has recognized that it is not. See State v. Jones, 234 Conn. 324, 345-47, 662 A.2d 1199 (1995); see also id., 371 (Borden, J., concurring in part). Furthermore, we have previously considered and rejected a due process challenge to the unitary adjudication of the issues of the sale of narcotics and drug dependency. See State v. Jenkins, 41 Conn. App. 604, 615-21, 679 A.2d 3 (1996). The defendant asks that we reconsider Jenkins or determine this matter to be distinguishable. We decline to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The defendant was charged by an eleven count substitute information; he was found not guilty of six counts, including two counts of sale of cocaine by a person who is not drug-dependent and four counts of sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The jury also considered and acquitted the defendant of two counts of sale of cocaine, General Statutes § 21a-277 (a), as lesser included offenses of § 21a-278 (b).

       The defendant cites article first, §§ 8 and 9, of the Connecticut constitution, and the fifth, sixth and fourteenth amendments to the United States constitution. The defendant has failed to file as part of his brief a separate and independent analysis of his claimed state constitutional violations. We therefore decline to consider these claims. State v. Munoz, 233 Conn. 106, 131 n.16, 659 A.2d 683 (1995). The defendant has also failed to provide an adequate analysis of his claimed federal constitutional violations as to the fifth and sixth amendments to the United States constitution.

       The defendant, as appellant, has the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). We cannot render a decision without first having specific findings of fact to determine the basis of the court’s ruling. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). Nevertheless, because the defendant challenges the constitutionality of the trial court’s decision and argues that he was entitled to a bifurcated trial as a matter of law, we need not rely on any findings of fact to render a decision.

       The defendant suggests that we did not have before us the issue of character and bad acts in Jenkins and therefore we should treat this matter as an exception. We do not agree that the character and bad acts claim was not raised in Jenkins.

       Because we examined the statutory scheme and fully analyzed the claim in Jenkins, we find it unnecessary to do so herein.