text:
    STATE OF CONNECTICUT v. JAIME MATOS
    (15433)
    Callahan, C. J., and Borden, Norcott, McDonald and Peters, Js.
    Argued February 19
    officially released May 6, 1997

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, assistant state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, C. J.

The primary issue in this appeal is whether the defendant, Jaime Matos, was deprived of his rights to due process and equal protection of the law when he was prevented by General Statutes (Rev. to 1991) § 54-76b from applying for treatment as a youthful offender because he was charged with, although not convicted of, the class A felony of murder. Additionally, we are asked to determine whether the trial court abused its discretion by excluding evidence of the victim’s gang connections. We conclude that the defendant’s due process and equal protection rights were not violated by § 54-76b and that the trial court did not abuse its discretion in refusing to admit the proffered evidence. We therefore affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 10, 1990, the defendant, who was seventeen years of age, together with two friends, Angel Madeira and Julio Sanchez, attended a festival held at Colt Park in Hartford. The defendant carried a semiautomatic pistol with him to the festival. Also attending the festival were Roberto Sanchez and several of his friends. Apparently, there was an unsettled dispute between these two groups arising from a previous altercation. At 3:21 p.m. during the festival, which was attended by approximately 15,000 people, the two groups met. Roberto Sanchez spoke to the defendant’s friend, Madeira, saying, “I didn’t get you last time. I’m going to get you now.” Roberto Sanchez then struck Madeira with his fist, and the two became involved in a fist fight, during which the defendant pulled his gun from his waistband and fired several shots. Roberto Sanchez was struck four times by the defendant’s bullets and was killed. Norberto Rivera, an innocent bystander, was hit in the shoulder and wounded by a stray bullet. The defendant was arrested later that night. Additional facts will be noted where necessary.

The defendant was charged in an amended information with murder in violation of General Statutes § 53a-54a, first degree assault in violation of General Statutes § 53a-59, and criminal use of a firearm in violation of General Statutes § 53a-216. Thereafter, the defendant filed a youthful offender eligibility application, which was denied by the trial court. The defendant’s subsequent motions requesting the court to reconsider his youthful offender application also were denied. After a hearing pursuant to General Statutes § 54-46a, the court found probable cause for the murder charge. A jury later acquitted the defendant of murder, but convicted him of the lesser included offense of first degree manslaughter in violation of General Statutes § 53a-55 (a) (l). The jury also found the defendant guilty of first degree assault and criminal use of a firearm. The trial court dismissed the criminal use of a firearm countand sentenced the defendant to a term of fifteen years on the manslaughter count and to a term of five years on the first degree assault count, to run consecutively, for a total effective sentence of twenty years. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendant presents the following issues on appeal: (1) whether § 54-76b violates his rights to due process and equal protection under the state and federal constitutions; and (2) whether the trial court abused its discretion by excluding evidence concerning the gang with which the victim was supposedly affiliated and its reputation for violence. We affirm the judgment of the trial court.

I

The defendant challenges § 54-76b on both substantive due process and equal protection grounds. It is well settled that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590, 590 A.2d 447 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988) . While courts may declare a statute to be unconstitutional, the power to do so should “be exercised with caution, and in no doubtful case.” State v. Brennan’s Liquors, 25 Conn. 278, 288 (1856). Every presumption is to be given in favor of the constitutionality of a statute. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Bottone v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989).

A

The defendant first claims that § 54-76b violates his right to due process as guaranteed to him by the federal constitution. “The fourteenth amendment to the United States constitution provides that the ‘State [shall not] deprive any person of life, liberty, or property, without due process of law . . . .’In order to prevail on his due process claim, the [defendant] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law. See Double I Limited Partnership v. Plan & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991); Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293, 554 A.2d 1065 (1989) . . . .” Tedesco v. Stamford, 222 Conn. 233, 241-42, 610 A.2d 574 (1992).

“Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States. Meachum v. Fano, 427 U.S. 215, 223-227 [96 S. Ct. 2532, 49 L. Ed. 2d 451] (1976).” Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). The defendant does not claim that he has been deprived of a fundamental right by the youthful offender statute. He claims, rather, that the youthful offender statute itself has created a liberty interest and that he has been denied that liberty interest without due process of law. “[0]nce a state provides its citizens with certain statutory rights beyond those secured by the constitution itself, the constitution forbids the state from depriving individuals of those statutory rights without due process of law.” State v. Garcia, 233 Conn. 44, 77, 658 A.2d 947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996). “The guarantee of substantive due process requires that a law be reasonable, rather than arbitrary or capricious, and that its operation has a real and substantial relation to the object to be obtained. All Brand Importers, Inc. v. Dept. of Liquor Control, [213 Conn. 184, 205, 567 A.2d 1156 (1989)].” Langan v. Weeks, 37 Conn. App. 105, 118, 655 A.2d 771 (1995). In the absence of a claim of deprivation of a fundamental right, we have scrutinized such questions under a rational basis test. See generally Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314-15, 417 A.2d 343 (1979). The party claiming a constitutional violation “bears the heavy burden of proving that the challenged policy has no reasonable relationship to any legitimate state purpose; Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314-15 . . . ." (Citation omitted; emphasis added.) Campbell v. Board of Education, supra, 105.

A brief examination of the benefits of youthful offender status and the statutory eligibility requirements for that status is in order before we consider the defendant’s due process claims. The youthful offender statutes confer certain benefits on those youths eligible to be adjudged youthful offenders. For instance, all proceedings, except the motion for investigation of eligibility, are private. General Statutes § 54-76h. If confined, a youth is segregated from other defendants over the age of eighteen years before and during trial and before sentencing. General Statutes § 54-76h. A youthful offender is also eligible to receive a more lenient sentence; compare General Statutes § 54-76j, with, e.g., General Statutes § 53a-35a; is not disqualified from later holding public office, and does not forfeit any right or privilege to receive a license granted by a public authority. General Statutes § 54-76k. Moreover, a youthful offender is not considered a criminal, and a determination that a defendant is a youthful offender is not deemed a conviction. General Statutes § 54-761c. A youthful offender’s records are kept confidential; General Statutes § 54-767; and are automatically erased “when such person attains twenty-one years of age, provided such person has not subsequent to being adjudicated a youthful offender been convicted of a felony . . . prior to [having] attained such age.” General Statutes § 54-76o.

Certain categories of defendants, however, are statutorily ineligible for treatment as youthful offenders. These groups can be characterized as comprising three general classifications: (1) those defendants who have already had the benefit of juvenile or youthful offender treatment or who have been afforded accelerated rehabilitation; (2) those defendants previously convicted of a felony; and (3) those defendants who have been charged with certain serious crimes.

The defendant makes two substantive due process claims: (1) that the legislature’s decision to base eligibility for youthful offender status on the seriousness of the crimes charged violates his right to due process of law; and (2) that the legislature’s decision to preclude a defendant from seeking the postverdict benefits of the youthful offender statutes if he or she is charged with, but not convicted of, one of the disqualifying offenses also violates the defendant’s right to due process of law. We disagree with both arguments.

With respect to the defendant’s first claim, we believe that the legislature’s decision to grant preverdict benefits and, therefore, to determine youthful offender status before trial, is rational. The preverdict benefits are real and substantial, and the early determination of eligibility is necessary to confer those benefits. We also conclude that it was rational for the legislature to exclude from youthful offender eligibility those defendants charged with murder.

The rationality of the legislature’s choice is supported by our decision in State v. Anonymous, 173 Conn. 414, 378 A.2d 528 (1977), in which we concluded that it was rational for the legislature to carve out an exception to the juvenile court statutory scheme with respect to juveniles charged with murder. The defendant in Anonymous was charged with intentionally causing a death. At the time of the incident, the defendant was fifteen years of age. He was therefore referred to the juvenile court. After a hearing pursuant to General Statutes (Rev. to 1977) § 17-60a, however, the defendant’s case was transferred to the Superior Court for disposition, and his file was sealed by that court. Subsequently, “the grand jury returned a true bill of indictment charging the defendant with the crime of murder in violation of § 53a-54a of the General Statutes. On motion of the state, the court . . . ordered the file unsealed, but issued a stay of its decree to permit the defendant to file an appeal to this court.” Id., 415. On appeal, we rejected the defendant’s claim of a violation of his right to privacy as guaranteed by the United States and Connecticut constitutions because his file was to be unsealed upon his transfer from the juvenile court.

We stated: “Any privacy accorded to a juvenile because of his age with respect to proceedings relative to a criminal offense results from statutory authority, rather than from any inherent or constitutional right. Such statutory right to privacy reflects a legislative policy to the effect that juveniles should be treated in a manner different from that of other criminal offenders. Because the right to anonymity emanates from the legislature and does not involve any fundamental right, that right can be withdrawn or limited to certain classes of juvenile offenders by the legislature provided the classifications are founded upon a rational basis. Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 [1977]. ‘In exercising [the state’s] police power the legislature has a broad discretion, both in determining what the public welfare requires, and in fashioning legislation to meet that need.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 167 Conn. 304, 307, 355 A.2d 247 [1974].

“Murder is the most serious of criminal charges. The enactment of § 17-60a of the General Statutes manifests the legislature’s recognition of the special problems which arise in the processing and disposition of juveniles charged with murder. Because of such problems, the legislature in enacting § 17-60a carved out an exception to the juvenile court statutory scheme with respect to juveniles charged with murder. That statute, when viewed in the context of the crime charged, the required investigation, hearing and court findings, clearly demonstrates that it was rationally based.” State v. Anonymous, supra, 173 Conn. 417-18.

We reach a similar conclusion in this case. The youthful offender statutes were enacted as Public Acts 1971, No. 72. From the debate on the Senate floor prior to passage, it is clear that the youthful offender statutes were intended to protect and possibly rehabilitate those youths who had made a mistake because of their immaturity. “I believe this is a giant step forward in the way 16 and 17 year olds are treated by the State of Connecticut. This is a time in every boy or girl’s life which is most crucial and the way they are handled during this delicate period will, in many instances, shape the type of men and women they become. In other words, the [die] is cast during this period . . . .” 14 S. Proc., Pt. 2, 1971 Sess., p. 652, remarks of Senator Jay W. Jackson. “I feel that young people at this stage of their lives have not adopted a life style of crime. And I think it’s quite possible and I think that society ought to hope that through its rehabilitation] efforts it can prevent young people who have committed one act, perhaps irrationally and injudiciously, that they have embarked on the wrong road, and that the right road is one in which they will see society in a different light.” 14 S. Proc., Pt. 2,1971 Sess., p. 735, remarks of Senator Lawrence J. Denardis. “It seems to me that we are moving backward when we do not give a young person a second chance. That’s really what we are talking [about] here.” 14 S. Proc., Pt. 2, 1971 Sess., p. 734, remarks of Senator Roger W. Eddy. “I think we are giving an opportunity to a sixteen or seventeen year old who is at the threshold. And just how he crosses that threshold and in what direction he takes after he crosses it, I think is most important to all of us people in the State of Connecticut.” 14 S. Proc., Pt. 2, 1971 Sess., p. 659, remarks of Senator Jay W. Jackson.

The legislature, however, was also concerned that certain defendants should be statutorily ineligible for youthful offender status. The act as initially drafted excluded only youths charged with class A felonies. There was a proposed amendment to the youthful offender bill in 1971, however, which would have excluded youths charged with other serious crimes. The ensuing discussion on the Senate floor focused on the conflict between the rehabilitative concerns of the act and society’s desire for harsh punishments for serious crimes. The ultimate conclusion reached by the 1971 legislature, as evidenced by the defeat of the amendment, was that the only charges serious enough to deny eligibility for youthful offender status ipso facto at that time were class A felonies.

It is rational, in light of the goals expressed by the legislature, to distinguish between those youths charged with murder after probable cause hearings and those charged with lesser crimes. A youth charged, after a hearing in probable cause, with having the intent to kill another person can be characterized reasonably as having crossed the threshold and chosen a direction in life incompatible with the lenient treatment available to youthful offenders. The legislature, therefore, rationally could have determined that the benefits of youthful offender status should not be available to such a defendant. It was consequently a legitimate legislative choice to exclude from the definition of a youthful offender those defendants charged with class A felonies. “ ‘In exercising [the state’s] police power the legislature has broad discretion, both in determining what the public welfare requires, and in fashioning legislation to meet that need.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, [supra, 167 Conn. 307].” State v. Anonymous, supra, 173 Conn. 418. The defendant’s first due process claim, therefore, fails.

As to his second due process claim, the defendant argues that because § 54-76b defines a “youthful offender” as one “who is charged with the commission of a crime which is not a . . . class A felony,” a defendant who is ultimately acquitted of a class A felony would be prohibited from applying for the postverdict benefits of the youthful offender statutes. The denial of those benefits following such an acquittal, he claims, has no rational basis and therefore constitutes a due process violation. We agree with the defendant that a defendant who is convicted of a lesser included crime, but is acquitted of the class A felony that statutorily deprived him of youthful offender status, is unable to apply for postverdict benefits. We disagree, however, that that result violates the defendant’s substantive due process rights.

As mentioned above, the legislature provided a variety of benefits to youths eligible to be adjudged youthful offenders when it enacted the youthful offender statutes. Some benefits exist before and during trial; others exist subsequent to a determination that a defendant is guilty of being a youthful offender. Regardless of the timing of the benefits, however, the legislature has chosen to bestow or withhold these benefits as a whole, rather than on a piecemeal basis. It is entirely possible that the legislature decided that, in the best interests of our open public court system, any defendant tried as an adult and exposed to the public for trial should be sentenced as an adult, regardless of the crimes of which he or she is ultimately convicted. The legislature could have reasoned that conferring postverdict youthful offender benefits, such as a more lenient sentence, confidential records, and the right to hold office, on a defendant who had been tried and convicted in open court as an adult would damage society’s perception of the fair administration of justice. Because there exists a rational basis for this legislative scheme; see Caldor’s, Inc. v. Bedding Barn, Inc., supra, 177 Conn. 314-15; we conclude that the legislature’s decision to preclude a defendant from seeking the postverdict benefits of the youthful offender statutes if charged with, but acquitted of, one of the enumerated offenses that deny eligibility, but convicted of a lesser offense, does not violate the defendant’s right to due process of law.

B

The defendant additionally claims that the youthful offender statutes as enacted by the legislature violate his right to equal protection under the United States constitution. In order to analyze the constitutionality of the youthful offender statutes on that basis, we must first detail the principles applicable to equal protection analysis. “ ‘[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.’ Reynolds v. Sims, 377 U.S. 533, [565] 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, [440] 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986). The equal protection clause ‘does not require absolute equality or precisely equal advantages . . . .’ Ross v. Moffitt, 417 U.S. 600, 612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Daily v. New Britain Machine Co., supra, 577-78. Rather, a state may make classifications when enacting or carrying out legislation, but in order to satisfy the equal protection clause the classifications made must be based on some reasonable ground. Ross v. Moffitt, supra [612]; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, [293] 18 S. Ct. 594, 42 L. Ed. 1037 (1898); Daily v. New Britain Machine Co., supra [577-78]; State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984). To determine whether a particular classification violates the guarantees of equal protection, the court must consider ‘the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.’ Dunn v. Blumstein, 405 U.S. 330, 335, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). Where the classification impinges upon a fundamental right or impacts upon an ‘inherently suspect’ group, it will be subjected to strict scrutiny and will be set aside unless it is justified by a compelling state interest. Id., 342; Bruno v. Civil Service Commission, 192 Conn. 335, 345, 472 A.2d 328 (1984); Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975). On the other hand, where the classification at issue neither impinges upon a fundamental right nor affects a suspect group it ‘will withstand constitutional attack if the distinction is founded on a rational basis.’ Laden v. Warden, supra, 543; see also McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).” Franklin v. Berger, 211 Conn. 591, 594-95, 560 A.2d 444 (1989).

To implicate the equal protection clauses under the state and federal constitutions, therefore, it is necessary that the state statute in question, either on its face or in practice, treat differently persons standing in the same relation to it. As was the case with his due process claim, the defendant alleges two separate equal protection violations. He first asserts that the youthful offender statutes provide for disparate treatment of two individuals both of whom are ultimately convicted only of manslaughter although one is initially charged with murder. This is so, the defendant argues, because the individual who is charged with murder but acquitted of that charge cannot receive the postverdict benefits of being a youthful offender, while the individual who is initially charged with only manslaughter is eligible, in the court’s discretion, to be treated as a youthful offender and receive the postverdict benefits. The classification the defendant complains of neither affects a suspect group nor impinges on a fundamental right. The defendant, therefore, must show that the statute bears no rational relation to some legitimate state purpose. See State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 754, 529 A.2d 1276 (1987); United Illuminating Co. v. New Haven, 179 Conn. 627, 640, 427 A.2d 830, appeal dismissed, 449 U.S. 801, 1015 S. Ct 45, 66 L. Ed. 2d 5 (1980).

“Under the rational basis test, [t]he court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way.” (Internal quotation marks omitted.) Circuit-Wise, Inc. v. Commissioner of Revenue Services, 215 Conn. 292, 300, 576 A.2d 1259 (1990). “In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement [Board] v. Fritz, 449 U.S. 166, 174, 179 [101 S. Ct. 453, 66 L. Ed. 2d 368] (1980), the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 [101 S. Ct. 715, 66 L. Ed. 2d 659] (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., [supra, 473 U.S. 446].” Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).

Our analysis of this equal protection claim of the defendant mirrors our analysis under the defendant’s first due process claim because the fundamental concern of both claims is the disparate treatment given to defendants, between the ages of sixteen and eighteen, who are charged with murder and to those who are charged with manslaughter. The due process argument is that such a distinction itself has no rational basis, while the equal protection argument cites the comparison with another person allegedly similarly situated to make basically the same claim. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Emphasis added; internal quotation marks omitted.) Broadley v. Board of Education, 229 Conn. 1, 8-9, 639 A.2d 502 (1994). Assuming arguendo that the two categories of defendants identified by the defendant are similarly situated with respect to the statute, and relying on our analysis under the defendant’s first due process claim, we conclude that a rational basis does exist for this classification, which results in disparate treatment for those charged with murder and those charged with lesser crimes, and that the classification bear’s a reasonable relationship to the legislative goal of the youthful offender statutes.

In his second equal protection claim, the defendant appears to claim that he is similarly situated to a child whose age is between fourteen and sixteen and who is charged with similar crimes. He argues that children transferred to and tried in adult criminal court have the opportunity to resume juvenile status if they are ultimately acquitted of the charge for which they were transferred, but that a similar opportunity to reapply for youthful offender status is denied to him.

However, the factual predicate upon which the defendant relies for this argument — that children may resume juvenile status if they are ultimately acquitted of the charge for which they were transferred — is not true. In another case that we decide today, State v. Morales, 240 Conn. 727, 694 A.2d 758 (1997), we conclude that a child does not resume juvenile status if acquitted of the specific statutory offense for which he was transferred. With respect to the defendant’s claim, therefore, both children and youths are treated similarly. The defendant’s equal protection claim, therefore, must fail.

II

The defendant’s final claim on appeal is that the trial court abused its discretion when it refused to admit evidence regarding the victim’s alleged gang affiliation and the gang’s reputation for violence. “It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

The defendant challenges the trial court’s rulings that excluded evidence concerning the victim’s affiliation with a gang, i.e., testimony that the victim was a gang member and that the gang was violent and had access to guns. The defendant argues that this evidence was relevant to his belief that the victim had deadly force at his command, although the victim himself was not using deadly force, and that this belief goes to his self-defense claim. The trial court ruled that because the defendant had testified that it was the victim whom he feared and that the victim was the person he shot, evidence concerning the other gang members’ tendencies for violence was not relevant to the defendant’s claim. After a thorough review of the record, we cannot say that the trial court abused its discretion in excluding the defendant’s proffered evidence on the basis of its irrelevance to the defendant’s self-defense claim.

The judgment is affirmed.

In this opinion the other justices concurred.

BORDEN, J.,

concurring. I agree with and join the majority opinion. I write separately only with regard to the defendant’s equal protection claim. In my view, it is not necessary to engage in the inquiry of whether the particular classification at issue has a rational basis because the defendant cannot surmount the threshold of equal protection analysis, namely, that he is similarly situated to the person with whom he is to be compared.

It is axiomatic that the equal protection clause only applies where the litigant before the court first establishes that he is similarly situated, with respect to the statutory scheme claimed to violate the clause, to someone else who is treated differently from him under the statutory scheme. Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 755, 687 A.2d 506 (1997). If he is so similarly situated, the court must then determine whether the classification effectuated by the statutory scheme survives the applicable level of scrutiny. Id., 755-57.

As the majority opinion makes clear, the defendant seeks to compare himself to the individual who is initially charged only with manslaughter and who is, therefore, eligible for youthful offender treatment. The defendant, however, is not similarly situated, with respect to the youthful offender statutory scheme, to such an individual.

The appropriate time for this inquiry is not, as the defendant assumes, at the end of the process, when he was acquitted of murder but convicted of manslaughter. The appropriate time is at the beginning of the process, when he was charged, because that is when the court was required to determine whether the youthful offender statutory scheme was to be invoked. That statutory scheme provides a panoply of protections for one who falls within it, and those protections include pretrial, trial and posttrial provisions. Therefore, it would be inappropriate to determine whether defendants are similarly situated with respect to that scheme only at its end point.

When the defendant was charged with murder, the state had evidence establishing probable cause that he had committed not only manslaughter, but murder. A defendant against whom there is sufficient evidence to charge him with murder is not, in my view, similarly situated to a defendant against whom there is only sufficient evidence to charge him with manslaughter. The defendant’s equal protection claim founders, therefore, at this threshold stage.

       General Statutes (Rev. to 1991) § 54-76b provides: “For the purpose of sections 54-76b to 54-76n, inclusive, ‘youth’ means a minor who has reached the age of sixteen years but has not reached the age of eighteen years; and ‘youthful offender’ means a youth who is charged with the commission of a crime which is not a violation of section 53a-70a or a class A felony, who has not previously been convicted of a felony or been previously adjudged a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e, and who is adjudged a youthful offender pursuant to the provisions of said sections. The interstate compact on juveniles, except the provisions of article four thereof, shall apply to youthful offenders to the same extent as to minors below sixteen years of age.” Unless otherwise indicated, all references to § 54-76b are to that statute as revised to 1991.

       The evidence is unclear whether Roberto Sanchez used the word “get” or the word “kill” when he addressed Madeira.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a . . . .”

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person ....
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-216 provides: “(a) A person is guilty of criminal use of a firearm or electronic defense weapon when he commits any class A, B or C or unclassified felony as defined in section 53a-25 and in the commission of such felony he uses or threatens the use of a pistol, revolver, machine gun, shotgun, rifle or other firearm or electronic defense weapon. No person shall be convicted of criminal use of a firearm or electronic defense weapon and the underlying felony upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Criminal use of a firearm or electronic defense weapon is a class D felony for which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 54-46a provides: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ....
      “(b) Manslaughter in the first degree is a class B felony.”

       See footnote 5.

       Because the defendant has not provided a separate and distinct analysis of his due process and equal protection claims under the state constitution, we address only his federal constitutional claims. See State v. Hinton, 227 Conn. 301, 322 n.23, 630 A.2d 593 (1993); State v. Gonzalez, 206 Conn. 391, 393-94 n.2, 538 A.2d 210 (1988).

       General Statutes § 54-76h provides: “All of the proceedings except proceedings on the motion under section 54-76c had under the provisions of sections 54-76b to 54-76n, inclusive, shall be private and shall be conducted in such parts of the courthouse or the building wherein court is located as shall be separate and apart from the other parts of the court which are then being held for proceedings pertaining to adults charged with crimes. If such defendant is committed while such examination and investigation is pending, before trial, during trial or after judgment and before sentence, those persons in charge of the place of detention shall segregate such defendant, to the extent of their facilities, from defendants over the age of eighteen years charged with crime.”

       General Statutes § 54-76j provides in relevant part: “(a) The court, upon the adjudication of any person as a youthful offender, may (1) commit the defendant, (2) impose afine not exceeding one thousand dollars, (3) impose a sentence of conditional discharge or a sentence of unconditional discharge, (4) impose a sentence of community service, (5) impose a sentence to a term of imprisonment not greater than that authorized for the crime committed by the defendant, (6) impose sentence and suspend the execution of the sentence, entirely or after a period set by the court, or (7) order treatment pursuant to section 17a-65G. . . Section 54-76j was amended after the time that the defendant applied for and was denied youthful offender status.

       General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (4) for the class B felony of manslaughter in the first degree with a firearm under section 53a-55a, a term not. less than five years nor more than forty years . . . .” Subdivision (4) was added to § 53a-35a in 1994, after the defendant’s conviction. See Public Acts, Spec. Sess., July, 1994, No. 94-2, § 2.

       General Statutes § 54-76k provides: “No determination made under the provisions of sections 54-76b to 54-76n, inclusive, shall operate as a disqualification of any youth subsequently to hold public office or public employment, or as a forfeiture of any right or privilege to receive any license granted by public authority and no youth shall be denominated a criminal by reason of such determination, nor shall such determination be deemed a conviction.”

       General Statutes § 54-76Í provides: “(a) The records of any youth adjudged a youthful offender, including fingerprints, photographs and physical descriptions, shall be confidential and shall not be open to public inspection or be disclosed except as provided in this section, but such fingerprints, photographs and physical descriptions submitted to the State Police Bureau of Identification of the Division of State Police within the Department of Public Safety at the time of the arrest of a person subsequently adjudged a youthful offender shall be retained as confidential matter in the files of such bureau, and be opened to inspection only as hereinafter provided. Other data ordinarily received by such bureau, with regal'd to persons arrested for a crime, shall be forwarded to the bureau to be filed, in addition to the fingerprints, photographs and physical descriptions as mentioned above, and be retained in the division as confidential information, open to inspection only as hereinafter provided.
      “(b) The records of any youth adjudged a youthful offender, or any part thereof, may be disclosed to and between individuals and agencies, and employees of such agencies, providing services directly to the youth including law enforcement officials, state and federal prosecutorial officials, school officials in accordance with section 10-233h, court officials, tíre Division of Criminal Justice, the Office of Adult Probation, the Office of the Bail Commission, the Board of Parole and an advocate appointed pursuant to section 54-221 for a victim of a crime committed by the youth. Such records shall be available to the attorney representing the child, his parents or guardian. Such records disclosed pursuant to this subsection shall not be further disclosed.
      “(c) The records of any youth adjudged a youthful offender, or any part thereof, may be disclosed upon order of the court to any person who has a legitimate interest in the information and is identified in such order. Records or information disclosed pursuant to this subsection shall not be further disclosed.
      “(d) The records of any youth adjudged a youthful offender, or any part thereof, shall be available to the victim of the crime committed by such youth to the same extent as the record of the case of a defendant in a criminal proceeding in the regular criminal docket of the Superior Court is available to a victim of the crime committed by such defendant. The court shall designate an official from whom such victim may request such information. Information disclosed pursuant to this subsection shall not be further disclosed.
      “(e) Any reports and files held by the Office of Adult Probation regarding any youth adjudged a youthful offender may be disclosed to the Office of the Bail Commission for the purpose of performing the duties contained in section 54-63b.” Section 54-76Í was amended after the time the defendant applied for and was denied youthful offender status.

       General Statutes § 54-76o provides: “Whenever any person has been adjudicated a youthful offender and has subsequently been discharged from the supervision of the court or from the care of any institution or agency to whom he has been committed by the court, all police and court records pertaining to such youthful offender shall be automatically erased when such person attains twenty-one years of age, provided such person has not subsequent to being adjudged a youthful offender been convicted of a felony, as defined in section 53a-25, prior to attaining such age. Youthful offender status shall not be deemed conviction of a crime for the purposes of this section. Upon the entry of such an erasure order, all references including arrest, complaint, referrals, petitions, reports and orders, shall be removed from all agency, official and institutional files. The persons in charge of such records shall not disclose to any person, except the subject of the record, upon submission of satisfactory proof of the subject’s identity in accordance with guidelines prescribed by the Chief Court Administrator, information pertaining to the record so erased. No youth who has been the subject of such an erasure order shall be deemed to have been arrested ab initio, within the meaning of the general statutes, with respect to proceedings so erased. Copies of the erasure order shall be sent to all persons, agencies, officials or institutions known to have information pertaining to the proceedings affecting such youth.” Section 54-76o was amended after the time the defendant applied for and was denied youthful offender status.

       General Statutes (Rev. to 1997) § 54-76b excludes from eligibility those youths who have “been previously adjudged a serious juvenile offender or serious juvenile repeat offender, as defined in section 46b-120, or a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e . . . .”

       General Statutes (Rev. to 1997) § 54-76b excludes from eligibility those youths charged with a class A felony or a violation of subdivision (2) of General Statutes § 53-21 (injury or risk of injury to, or impairing morals of, children), General Statutes § 53a-70 (sexual assault in first degree), General Statutes § 53a-70a (aggravated sexual assault in first degree), General Statutes § 53a-70b (sexual assault in spousal or cohabiting relationship), General Statutes § 53a-71 (sexual assault in second degree), General Statutes § 53a-72a (sexual assault in third degree), or General Statutes § 53a-72b (sexual assault in third degree with firearm).

       General Statutes (Rev. to 1977) § 17-60a provides: “The juvenile court shall have the authority to transfer to the jurisdiction of the superior court any child referred to it for the commission of a murder, provided any such murder was committed after such child attained the age of fourteen years. No such transfer shall be valid unless prior thereto the comt has caused a complete investigation to be made as provided in section 17-66 and has found, after a hearing, that there is reasonable cause to believe that (1) the child has committed the act for which he is charged and (2) there is no state institution designed for the care and treatment of children to which said court may commit such child which is suitable for his care or treatment or (3) the safety of the community requires that the child continue under restraint for a period extending beyond his majority and (4) the facilities of the superior court provide a more effective setting for disposition of the case and the institutions to which said court may sentence a defendant are more suitable for the care or treatment of such child. Upon the effectuation of the transfer, the superior court shall have exclusive jurisdiction of such child and such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.” Currently, the statute concerning the transfer of juveniles to the regular criminal docket is General Statutes § 46b-127.

       Subsequent public acts amended § 54-76b to exclude from eligibility for youthful offender status youths charged with other serious crimes: Public Acts 1989, No. 89-383 amended the statute to exclude those charged with violations of General Statutes § 53a-70a; see footnote 17; and Public Acts 1995, No. 95-142 amended the statute to exclude those charged with violations of General Statutes § 53-21 (2) or of General Statutes §§ 53a-70, 53a-70b, 53a-71, 53a-72a, or 53a-72b. See footnote 17.

       The defendant asks us to adopt the reasoning of the New York Court of Appeals in People v. Drummond, 40 N.Y.2d 990, 359 N.E.2d 663, 391 N.Y.S.2d 67 (1976), cert. denied sub nom. New York v. Luis J., 431 U.S. 908, 97 S. Ct. 1706, 52 L. Ed. 2d 394 (1977), which held that the New York youthful offender statutes violated due process of law and were, therefore, unconstitutional. The New York Court of Appeals decision is inapposite, however, because it was scrutinizing a youthful offender scheme that involved a postverdict hearing to determine eligibility for postverdict benefits. In this postverdict hearing, the charging document determined eligibility despite an ultimate acquittal on the relevant charge. Connecticut’s youthful offender scheme, however, does not offer a postverdict youthful offender hearing. When eligibility for youthful offender status is determined under Connecticut law, therefore, there is no such conflict between the charging document and the conviction.

       In his brief, the defendant presents an argument, that appears to be directed toward a procedural due process claim. In essence, he argues that a prosecutor has unbridled discretion to determine the crimes with which to charge a defendant. He claims that, even if a subsequent, probable catise hearing' revealed that there was no probable cause to charge a defendant with murder — the charge for which he was statutorily denied youthful offender status — the defendant would still be statutorily barred from youthful offender status because he had been charged with murder. In such a situation, however, that statutory bar would no longer exist, and the defendant would be able to make another application to the trial court to determine his eligibility for youthful offender status.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       General Statutes § 46b-120 defines “child” as “any person under sixteen year’s of age."

       We specifically conclude that the phrase “the charge for which he was transferred” in the last sentence of General Statutes § 46b-127 includes not only the specific statutory offense for which a child was transferred but also any lesser included offenses.

       The defendant testified that he saw a gun in the hands of one of the victim’s fellow gang members.

       By joining the majority opinion, I also agree with and join its rational basis analysis. The purpose of this concurrence is simply to underscore my conclusion that it is not necessary to engage in that analysis.


source: Caselaw Access Project

author: NORCOTT, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. FREDERICK PAYNE, SR.
    (15395)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.

      Argued December 6, 1996
    officially released May 6, 1997

      John W. Watson, senior assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Elpedio Vitale, assistant state’s attorney, and Zachary R. Osborne, legal intern, for the appel-lee (state).
   Opinion

NORCOTT, J.

The defendant, Frederick Payne, Sr., was convicted after a jury trial of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21 and misdemeanor coercion in violation of General Statutes § 53a-192. The Appellate Court affirmed the judgment of conviction, and we granted the defendant’s petition for certification limited to review of the following questions: “(1) Did the Appellate Court properly hold that General Statutes § 53-21 is violated by conduct posing a risk of injury to a child’s mental health? (2) Did the Appellate Court properly hold that, so construed, General Statutes § 53-21 is not unconstitutionally void for vagueness? (3) Did the Appellate Court properly conclude that the trial court adequately instructed the jury on the applicability of General Statutes § 53-21 in the circumstances of this case?” State v. Payne, 236 Conn. 911, 673 A.2d 112 (1996). We affirm the judgment of the Appellate Court.

The essential facts underlying the jury’s verdict are set forth in the opinion of the Appellate Court. “On February 4, 1993, at 5 p.m., the defendant approached three boys, R, age eight, his brother A, age five, and their friend L, age ten, in a dark hallway of a vacant apartment building in a New Haven housing project. Standing in the doorway so as to prevent the boys from leaving, the defendant ordered the boys to urinate into a cup. The defendant told R that he was going to kill him if he did not comply. After all three boys urinated, the defendant gave them $1 and allowed them to leave. R and A ran home crying and told their mother, T, what had occurred.

“T and her sons approached Officers Brian Morris and John Dalton of the New Haven police department in the courtyard of the housing project. T informed the police officers of the incident and described the defendant. Morris and Dalton told T to return home and to wait for their telephone call. In an effort to locate the defendant, Morris and Dalton proceeded to a nearby parole office. Morris and Dalton described the defendant to a parole officer who stated that the defendant was currently in the building attending a drug and alcohol recovery meeting. Morris and Dalton then telephoned T and requested that she and her sons meet them there. At the [parole] office, R and A positively identified the defendant as the man who had forced them to urinate. The police arrested the defendant and, upon searching him, seized a small plastic bottle of urine they found hidden in the waistband of his underwear.” State v. Payne, 40 Conn. App. 1, 3-4, 669 A.2d 582 (1995). Additional findings of the Appellate Court will be provided where necessary.

I

The defendant was prosecuted and convicted under the first part of § 53-21, which provides that “[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 its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired . . . shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.” In instructing the jury, the trial court defined health as “a state of being hale, sound or whole in body, mind or soul, or well-being.” The defendant now contends that the Appellate Court improperly concluded that the word “health,” as used in the first part of § 53-21, includes a child’s mental health. We disagree.

Our resolution of the defendant’s claim begins with an analysis of § 53-21. In this endeavor, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults. See State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); State v. Palangio, 24 Conn. App. 300, 305, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). Section 53-21 does not define the term “health,” and the legislative history of the statute does not provide any insight into the legislature’s intent in using the term. “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994). The Appellate Court noted that Webster’s Third International Collegiate Dictionary defines health as “the condition of an organism or one of its parts in which it performs its vital functions normally or properly: the state of being sound in body or mind .... It is further defined as the [s]tate of being hale, sound, or whole in body, mind or soul .... Black’s Law Dictionary (6th Ed. 1990).” (Citations omitted; internal quotation marks omitted.) State v. Payne, supra, 40 Conn. App. 9. We agree with the Appellate Court that both the common and the legal definitions of health include mental health and, therefore, that the legislature intended health to include mental health in the context of § 53-21.

Moreover, “ ‘[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase ... [so that] no word [or phrase] in a statute is to be treated as superfluous.’ ” State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993). The Appellate Court emphasized that the first part of § 53-21 “distinguishes] three alternative classes of potential injury: endangering life or limb, likely injury to health, and impairment of morals.” State v. Payne, supra, 40 Conn. App. 8. We agree that, because the phrase “life or limb is endangered” indicates the intent of the legislature to protect children from conduct creating a risk of physical injury, and because the phrase “morals likely to be impaired” expresses the legislature’s intent to prohibit conduct threatening the morality of children, the phrase “health is likely to be injured” must include the risk of injury to the mental health of a child in order to avoid redundancy within the first part of the statute.

The defendant, however, argues that we should adopt a more limited construction of the term “health” under the first part of § 53-21. He posits that this court’s ruling in State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), precludes us from finding that the first part of § 53-21 extends to conduct creating a risk of injury solely to mental health.

In Schriver, the defendant grabbed a thirteen year old girl around the waist and uttered a sexual remark to her. He was charged and convicted under the second part of § 53-21 for doing an “act likely to impair the health or morals of [a] child.” Id., 458. In reversing the defendant’s conviction, this court held, inter aha, that the combined judicial gloss of previous cases construing § 53-21 limited the second part of § 53-21 strictly to prosecution for those acts likely to impair the physical health of a child. Id., 466-68. In deciding the present case, the Appellate Court ruled that Schriver did not support the defendant’s claim because “[ujnlike the present case, the state prosecuted the defendant in Schriver under the second [part] of § 53-21. . . . Schriver . . . left open the question of whether the state could pursue a prosecution based solely on an impairment of mental health under the first [part] of the statute.” (Citations omitted; internal quotation marks omitted.) State v. Payne, supra, 40 Conn. App. 5-6. The Appellate Court thus concluded that Schriver did not provide an authoritative judicial gloss limiting the meaning of health under the first part of § 53-21 to physical health. Id., 6.

Our review of the grammatical structure, the legislative history and the legislative purpose of § 53-21 leads us to agree with the reasoning and conclusion of the Appellate Court that Schriver is legally distinguishable from the present case. Id. Section 53-21 is divided into two distinct parts and separated by the disjunctive. “The use of the disjunctive ‘or’ between the two parts of the statute indicates a clear legislative intent of separability. State v. Sul, 146 Conn. 78, 89, 147 A.2d 686 [1958]; Harris v. Egan, 135 Conn. 102, 105, 60 A.2d 922 [1948].” State v. Dennis, supra, 150 Conn. 248. The legislative history of § 53-21 supports the conception of § 53-21 as comprising two distinct parts. The statute, as it currently exists, was derived from two separate legislative enactments. “[I]n 1921 the first part of the statute was added to an existing statute. Public Acts 1921, c. 81, amending Rev. 1918, § 6205. It was separated therefrom in 1943, and the second part was added. Sup. 1943, § 733g.” State v. Dennis, supra, 249. Cases construing § 53-21 have emphasized this clear separation between the two parts of the statute and support our conclusion that the limitation on the meaning of health set forth in Schriver under the second part of § 53-21 does not have any bearing on the first part of § 53-21. See State v. Schriver, supra, 207 Conn. 467; State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Dennis, supra, 250; State v. Velez, 17 Conn. App. 186, 198-99, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989).

The defendant further contends that the limiting construction set forth in Schriver should govern both parts of § 53-21 because the distinction between creating a situation under the first part and the commission of an act under the second part is irrelevant where both parts address the same harm, namely likely injury to health. We disagree. Although both parts of the statute are intended to protect children from predatory and potentially harmful conduct of adults, the two parts nonetheless are directed at different kinds of harm to children. This court ruled in Schriver that the second part, which prohibits “acts” likely to injure the health or morals of a child, was limited to protecting the bodily integrity of a child. Thus, “[t]o have violated the statute . . . the defendant had to have committed acts directly perpetrated on the person of a [child] . . . .” State v. Schriver, supra, 207 Conn. 467. By contrast, the first part of § 53-21 prohibits the wilful creation of a “situation” likely to impair the health of a child and thus encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible. Id. The plain language of the first part of § 53-21 indicates the legislature’s understanding that there is a broad class of intentional conduct that can put a child’s well-being seriously at risk without any physical contact by the perpetrator. Thus, to limit the meaning of health to include only physical health under this part of the statute would undermine the larger purpose of § 53-21 to afford protection to a child from the potentially harmful wilful conduct of adults.

We find support for our conclusion in the decision of the United States Supreme Court construing health, under a statute leaving that term undefined, to include mental health. See United States v. Vuitch, 402 U.S. 62, 72, 91 S. Ct. 1294, 28 L. Ed. 2d 601 (1971) (in abortion statute, in absence of pertinent legislative history and in light of dictionary definitions, health includes physical and mental health). While this court has not had occasion to determine the meaning of health in the first part of § 53-21, the Appellate Court previously has found violations of the first part of the statute based on a meaning of the term broader than strictly physical health. See, e.g., State v. George, 37 Conn. App. 388, 391-92, 656 A.2d 232 (1995) (leaving seventeen month old child unattended in apartment created situation risking injury to child’s health and life or limb); State v. Jones, 29 Conn. App. 683, 688-89, 617 A.2d 918 (1992) (engaging in high-speed automobile chase and intentional crash with four year old child in car created situation risking child’s health); State v. Velez, supra, 17 Conn. App. 199 (sexual activity with children created situation likely to be harmful to their physical and emotional well-being); State v. Mancinone, 15 Conn. App. 251, 277, 545 A.2d 1331, 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) (providing children with alcohol and marijuana created situation risking injury to health or morals). In addition, courts in other jurisdictions have also interpreted health to include mental health. See Harrison v. State, 644 N.E.2d 888, 890 (Ind. App. 1994) (affirming conviction for placing child in situation that may endanger his life or health; based on dictionary definitions “health” includes physical, psychological, mental and emotional states); State v. Barr, 354 So. 2d 1344, 1346-47 (La. 1978) (“unjustifiable pain and suffering” can include psychological harm under cruelty to juvenile statute); Commonwealth v. Miller, 385 Mass. 521, 525 n.6, 526, 432 N.E.2d 463 (1982) (affirming extortion conviction by ruling that phrase “threatens an injury to the person” includes severe mental anguish); People v. Igaz, 119 Mich. App. 172, 189-90, 326 N.W.2d 420 (1982) (same); State v. Galusha, 164 Vt. 91, 94, 665 A.2d 595 (1995) (same).

The defendant also argues that if the legislature had intended to criminalize conduct posing a risk of injury to a child’s mental health, it clearly would have done so. This argument fails to give sufficient weight to the breadth of the term “health,” which, under both the common and the legal usage of health, includes soundness of mind as well as of body. If the legislature had intended to limit the meaning of health to physical health, it would have done so expressly as it has in other statutes. See, e.g., General Statutes § 45a-677 (a), (b), (f) and (g) (distinguishing powers or duties of guardians of mentally retarded persons regarding physical or mental health and safety); General Statutes § 45a-670 (regarding inability of mentally retarded person to meet essential requirements for his “physical health or safety” for purposes of appointing guardians for mentally retarded persons); General Statutes § 46a-l la (concerning protection of persons with disabilities, abuse is defined as “the wilful infliction of physical pain or injury or the wilful deprivation by a caretaker of services which are necessary to the person’s health or safety”).

In light of the common meaning and legal definition of health, and the division of the statute into two independent parts, we conclude that the first part of § 53-21 prohibits conduct that places a child in a situation that poses a risk of injury to the child’s mental health.

II

The defendant next challenges the Appellate Court’s conclusion that his conviction did not violate due process because § 53-21 is not unconstitutionally vague. The defendant argues that neither the statutory language nor authoritative judicial gloss gave him sufficient notice that risk of injury to mental health is included within § 53-21, and that, therefore, he did not have fair warning that § 53-21 proscribed the conduct for which he was charged and convicted. We disagree.

“In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that ‘[t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.’ ” State v. Ross, 230 Conn. 183, 236, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). “The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975).” State v. Schriver, supra, 207 Conn. 459-60. Thus, “[i]n order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. ’ McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979).” State v. Schriver, supra, 460.

Furthermore, “[a]s a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.” State v. Pickering, supra, 180 Conn. 57. “For statutes that do not implicate the especially sensitive concerns embodied in the first amendment [or other fundamental rights], we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).” State v. Schriver, supra, 207 Conn. 461. “If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Pickering, supra, 62-63.

With these principles in mind, we turn to the facts and circumstances of the defendant’s void for vagueness claim. In so doing, our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under the first part of § 53-21. We conclude that a person of ordinary intelligence would know that health in the first part of § 53-21 would include mental health, and that such a person would have fair warning that the outrageous conduct of using threats to force a child to expose his private parts in a public place to urinate into a cup would constitute a violation of the statute. As we have emphasized, the common meaning and legal definition of health includes mental health, and precedents from other jurisdictions have recognized that health, when undefined by statute, includes mental health. See United States v. Vuitch, supra, 402 U.S. 72; Harrison v. State, supra, 644 N.E.2d 890.

The defendant also had fair warning that by requiring a child to expose himself for an unlawful purpose, he violated § 53-21. In Velez, the Appellate Court ruled that the defendant’s undressing himself and young girls so as to reveal their genitals created a situation which was “likely to be harmful to their physical, emotional and moral well-being.” State v. Velez, supra, 17 Conn. App. 199. Similarly, the Appellate Court also has held that the creation of a situation in which children were posed in various stages of undress and in various types of clothing is prohibited by the first part of § 53-21. State v. Palangio, supra, 24 Conn. App. 305.

Finally, our decision is informed by the understanding that the fundamental purpose of the void for vagueness doctrine is to ensure fair warning in order to avoid traps for the innocent. State v. Indrisano, supra, 228 Conn. 802. The defendant has made no plausible argument, nor can we conceive of one, that he acted in reliance on the belief that his conduct was lawful, or that a person of ordinary intelligence would have no reason to know that he was engaging in prohibited conduct. Accordingly, we are unpersuaded that the defendant has met his heavy burden of proving that § 53-21, as applied to the circumstances of this case, is unconstitutionally void for vagueness.

Ill

The defendant finally challenges the conclusion of the Appellate Court that the trial court properly and adequately instructed the jury on the elements of risk of injury to a child under § 53-21. Specifically, the defendant contends that the trial court (1) failed to inform the jury of the appropriate judicial gloss that has been placed on § 53-21, and (2) improperly instructed the jury to use the “common sense of the community” to determine whether the defendant had impaired the health or morals of the three children. We disagree.

At the close of evidence, the defendant submitted a request to charge that included three instructions: first, that the jury was required to find that the defendant had created a situation or permitted a child to be placed in a situation in which the child was likely to be exposed to deliberate, blatant physical abuse in order to have injured the health of the child; second, that the jury was required to find that the defendant had subjected a child to lewd or indecent conduct of a sexual nature in order to have impaired the morals of the child; and third, that § 53-21 does not permit a conviction based on likely impairment to mental health alone. The trial court did not charge as the defendant had requested, and instead instructed the jury in accordance with the charge that the state had submitted.

The defendant argued before the Appellate Court that the trial court had improperly charged the jury because the trial court divided the language of § 53-21 into three elements without informing the jury of the authoritative judicial gloss construing the statute. In upholding the charge by the trial court, the Appellate Court concluded that “[n] either the statute nor judicial gloss establishes . . . that a threat of blatant physical abuse is an element under the first part . . . [that] a conviction under the first part does not . . . require proof . . . [of] indecent contact . . . [and] that a conviction [under § 53-21 can] be based solely on a likely impairment of mental health . . . .” (Citations omitted.) State v. Payne, supra, 40 Conn. App. 12.

We agree with the Appellate Court that the trial court properly instructed the jury on § 53-21. “[A] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” (Internal quotation marks omitted.) State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). “ ‘A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.’ ” State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995). Because we have determined that health includes mental health for the purposes of applying the first part of § 53-21, we conclude that the trial court properly charged the jury concerning the meaning of the term.

We reject, moreover, the defendant’s reliance on State v. Zwirn, 210 Conn. 582, 556 A.2d 588 (1989), for the proposition that a conviction under the first part of § 53-21 requires a jury instruction that the defendant exposed the children to a threat of lewd or indecent contact. In Zwirn, we ruled that, when a prosecution is based on an act of physical contact that impairs the morals of a child under the second part of § 53-21, the state must prove that the act was committed in a sexually indecent manner. Id., 588. As the Appellate Court stated, however, this court decided Zwirn under the “acts” part of § 53-21, which, in contrast to the “situation” part of the statute, requires a defendant to have made physical contact with a child. State v. Payne, supra, 40 Conn. App. 12. The combined judicial gloss further indicates that the injury to morals in the first part of § 53-21 is not limited to morals put at risk by indecent sexual contact with private parts. See State v. Zarick, 227 Conn. 207, 212-13, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Erzen, 29 Conn. App. 591, 594-95, 617 A.2d 177 (1992); State v. Palangio, supra, 24 Conn. App. 304. Similarly, because a defendant need not touch a child in order to violate the first part of § 53-21, but can be prosecuted under that part for creating a situation likely to endanger the psychological or physical well-being of a child, we conclude that the first part of the statute is not limited to prosecuting injury to a child resulting from deliberate, blatant, physical abuse.

We also are not persuaded that the trial court’s charge directing the jury to apply the common sense of the community to decide whether the defendant impaired the health and the morals of a child violated the defendant’s right to due process of law by inviting the jury to make subjective moral determinations. The trial court’s instruction to the jury in the present case was taken from the Appellate Court’s opinion in State v. Erzen, supra, 29 Conn. App. 599, where the trial court had instructed the jury to apply community standards to determine whether exposing oneself to a child would create a situation risking injuiy to the morals of a child. This court has upheld a charge allowing the jury to apply community standards in relation to the reach of obscenity laws under the first amendment of the United States constitution; State v. Gagliardi, 174 Conn. 46, 48-49, 381 A.2d 1068 (1977); and in applying the disorderly conduct statute. State v. Indrisano, supra, 228 Conn. 810. In both of these cases, this court ruled that a defendant is protected from individualized standardless decision making if the jury applies community standards, and that a jury that is apprised of the nature of allegedly offensive matters can properly evaluate the conduct against the community standard. The defendant has offered no persuasive reason why the logic of these cases should not control the present case.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and MCDONALD and PETERS, Js., concurred.

BERDON, J.,

dissenting. If we were writing on a clean slate, I would agree that “health,” as used in the first part; of General Statutes (Rev. to 1993) § 53-21, includes mental health. It makes absolute common sense that the legislature intended to protect not only the physical, but also the mental, health of a child. Anything less would be simply absurd. Furthermore, a person of ordinary intelligence would have no difficulty in determining that the term “health” as used in the statute clearly refers to both the physical and the mental health of a child. We are not, however, writing on a clean slate.

Section 53-21 consists of two parts. The first part prohibits persons from causing or permitting a child to be placed in a situation likely to injure the child’s health or impair the child’s morals. The second part prohibits persons from doing any act likely to impair the health or morals of any child.

In State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), this identical statute was before this court. In Schriver, this court stated: “On its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited.” Id., 461. Nevertheless, the court recognized that prior cases construing § 53-21 “provide an authoritative judicial gloss that limits the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse.” Id., 466. The state, however, argued that, even without substantial risk of physical injury, the defendant’s conduct violated § 53-21 “because it created a cognizable risk of mental injury to the victim.” Id. The unanimous court, which included two justices who are members of this panel, stated: “Any effort to extrapolate guidelines for the prosecution of persons accused of impairing the mental health of minors is hampered by a trio of factors: The language of § 53-21 provides no tangible criteria; none of our prior cases adds a definitive gloss; and the state has not offered any workable standards. All that is absolutely known is that the irreducible minimum of any prosecution under the second part of § 53-21 is an act directly perpetrated on the person of a minor. . . . While such acts are normally prosecuted as threats to physical health ... it is of course true that not every act directly perpetrated on a minor will threaten his or her physical health. Some acts might very well cause mental impairment without necessarily endangering the child’s physical well-being. Under an appropriately tailored penal law, the legislature would have the power to proscribe such activity.

“Section 53-21, however, is not such a law. Without the aid of prior decisions to lend an authoritative gloss to the potentially limitless language of the statute, any effort to conform § 53-21 to the mandate of due process would necessarily entail a wholesale redrafting of the statute. We decline to undertake this activity, which is within the exclusive province of the legislature.” (Citations omitted.) Id., 467-68.

Although I believe Schriver was wrongly decided, it placed on the statute a judicial gloss that cannot be cleansed in the absence of legislative action. “[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 333, 567 A.2d 1195 (1990). Despite the fact that in Schriver this court concluded that mental health does not fall within the reach of the second part of § 53-21, the legislature, during the nine years that have elapsed since Schriver, has not acted to criminalize conduct that poses a risk of injury to a child’s mental health. I can reach no other conclusion than that the legislature has chosen to acquiesce in Schriver’s interpretation of § 53-21. Indeed, several other states have specifically included mental health in their statutes governing risk of injury to children.

The majority attempts to circumvent the conclusion in Schriver by determining that “health,” as used in the first part of § 53-21, means something different than “health” means in the second part of the same statute. I disagree.

I recognize that it is well settled that the two parts of § 53-21 prohibit two different “general types of behavior.” State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The first part prohibits the wilful or unlawful creation of a situation that is likely to injure the health of a child. In other words, “it is not necessary to have any touching of any part of the body to violate § 53-21; the creation of a prohibited situation is sufficient.” State v. Perruccio, supra, 159-60; see State v. Tyler-Barcomb, 197 Conn. 666, 668-69, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986) (failure to prevent boyfriend’s abuse of child). Under the secondpart, however, there mustbe physical contact to violate that provision. Specifically, it prohibits “acts directly perpetrated on the person of the [child] and injurious to his moral or physical well-being.” (Internal quotation marks omitted.) State v. Perruccio, supra, 159.

Although I agree that the two parts of § 53-21 prohibit two distinct types of behavior, I cannot agree that the term health has different meanings in the two parts of the statute. Under the reasoning of the majority, the second part of § 53-21 prohibits only physical harm, while the first part prohibits mental, as well as physical, harm. In my view, the risk of likely harm proscribed by the two parts of the statute is identical, or is at least a distinction without a difference, with respect to mental health. In light of this court’s conclusion in Schriver, I fail to understand how two provisions that prohibit two essentially identical risks of harm can have two different meanings within the same statute.

The majority rationalizes its conclusion by arguing that because the first part of the statute includes the phrase “life or limb” in addition to “health,” the term health in that part must also include mental health. The majority further argues that an interpretation of the statute to the contrary would render “health” superfluous in the first part of § 53-21. That is simply not so. As I previously pointed out, the first part of the statute prohibits conduct that amounts to causing or permitting a child to be placed in certain situations, and the second part prohibits acts directly perpetrated on the person of a child — both of which could involve the mental, as well as the physical, health of a child.

The strained opinion of the majority today, because of the Schriver- gloss on § 53-21, deprives the defendant of his constitutional right to due process of law — the right to fair warning of the effect of § 53-21 and the guarantee against standardless law enforcement. Although I disagree with Schriver’s conclusion that the combined, judicial gloss of prior decisions renders the term health in the second part of § 53-21 to include only physical harm, I conclude that we are bound by that judicial gloss in interpreting the same term in the same manner in the first part of the statute. I would leave it to the legislature to amend the statute specifically to include risk of harm to the mental health of a child.

Accordingly, I dissent.

       At the time that the defendant was convicted, General Statutes (Rev. to 1993) § 53-21 provided: “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.”
      The statute was amended in 1995, but the revisions are not relevant in the present appeal. See Public Acts 1995, No. 95-142, § 1. Hereafter, all references to § 53-21 in this opinion are to the 1993 revision.

       General Statutes § 53a-192 provides in relevant part: “(a) A person is guilty of coercion when he compels or induces another person to engage in conduct which such other person has a legal right to abstain from engaging in ... by means of instilling in such other person a fear that, if the demand is not complied with, the actor or another will: (1) Commit any criminal offense ....
      “(c) Coercion is a class A misdemeanor except, if the threat is to commit a felony, coercion is a class D felony.”

       The defendant also claimed that the trial court (1) improperly denied his motion for judgment of acquittal on the grounds that there was insufficient evidence to support the convictions, and (2) abused its discretion in failing to issue a capias compelling the appearance of two defense witnesses and in excluding evidence of prior acts by the defendant offered to establish that the defendant had acted in conformity with them at the time of the crime. These issues, however, are not before this court in the certified appeal.

       “As the result of a prior conviction, the defendant was under the supervision of a parole officer and subject to random urine testing for drugs and alcohol. The defendant approached the victims in order to obtain a clean urine sample to give as his own to his parole officer.” State v. Payne, 40 Conn. App. 1, 3 n.3, 669 A.2d 582 (1995).

       In State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), this court parsed § 53-21 into two parts.

       This definition of health was derived from Black’s Law Dictionary. “The [trial] court used the model charge for risk of iiyury as set forth in D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (Sup. 1994) § 10.8A, which included this definition.” State v. Payne, supra, 40 Conn. App. 9.

       The trial court’s instruction to the jury states in pertinent part: “The statute, therefore, in so far as it applies here, proscribes behavior that means deliberate indifference to, acquiescence in, or the creation of situations inimicable to the minor’s ‘moral or physical welfare.’ The statute does not specify the situations being likely to impair the health and morals of a child. The common sense of the community as represented by you, the jury, as well as the sense of decency, propriety and morality which most people entertain is sufficient to apply the statute to any particular case.
      “Further, under the statute it is not necessary that the defendant touch any part of the victim’s body to be guilty of the offense. There are accordingly three elements to this offense. The first element, that the defendant’s conduct was willful or unlawful. The word willful means doing a forbidden act purposely, in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent, not accidental.
      “It is not necessary that the defendant intend to ipjure the child’s health or morals, nor is it necessary that the conduct actually impair the health or morals of the child. Thus, proof of an actual impairment of health or morals is not required. The intentional creation of a potentially harmful situation to the child’s health or morals by the defendant is all that is required. The focus of the statute is on the behavior of the defendant.
      “The word unlawfully simply means that the defendant acted without any legal right to do so, or in violation of a legal duty imposed upon him. There is no requirement’that the defendant utilize threats or physical conduct to act unlawfully. A failure to act when one is under a duty to do so will constitute unlawful conduct.
      “The second element is that the defendant created, acquiesced in or was deliberately indifferent to a situation which is likely to be harmful to the victim’s health or morals. Health is defined as a state of being hale, sound or whole in body, mind or soul, or well-being. Freedom from pain or sickness constitutes health. To impair means to make worse or to diminish in quality. Likely means in all probability or possibility.
      “Morals is defined as of or concern with the judgment principles of right and wrong in relation to human action and character, teaching or exhibiting goodness or correctness of character and behavior, rules or habits of conduct with reference to standards of right and wrong. The locus is on whether the situation was such that harm to the health or morals was likely to [occur], as I’ve defined these terms to you.
      “And again, you will recall from my earlier instruction with regard to this statute that actual injury to the health or morals is not an element of the offense, not required, nor does the jury have to find actual impairment, of the health or morals of the child.
      “And the third element is that the victim who was, who in this situation was less than sixteen years of age, that is, he had not yet reached his sixteenth birthday. And I think there was evidence in the case concerning his age. It was some less than sixteen at the time of this offense.”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that 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.’'

       This court has stated that § 53-21 proscribes two general types of conduct: “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child’s] moral or physical welfare and (2) acts directly perpetrated on the person of the [child] and usurious to his moral orphysical well-being.” (Internal quotation marks omitted.) State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).

       In Schriver, the defendant had grabbed the thirteen year old female victim around the waist while she was delivering newspapers and said, “Don’t worry, all I want to do is feel you.” State v. Schriver, supra, 207 Conn. 457.

       See, e.g., Ark. Code Ann. § 5-27-204 (a) (Michie 1993) (“[a] person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare” [emphasis added]); Cal. Penal Code § 273a (Deering Sup. 1997) (“[a]ny person who . . . willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . shall be punished” [emphasis added]); Haw. Rev. Stat. § 709-904 (2) (1993) (“[a] person commits the offense of endangering the welfare of a minor in the second degree if ... the person knowingly endangers the minor’s physical or mental welfare” [emphasis added]); N.Y. Penal Law § 260.10 (1) (McKinney Sup. 1997) (“[a] person is guilty of endangering the welfare of a child when ... [h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child” [emphasis added]).

       “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.. . .” (Citations omitted.) Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980).
      The United States Supreme Court has emphasized, however, that “the more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). “Avague 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 discriminatory application.” Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).