author: PALMER, J. KATZ, J.,

text:
    STATE OF CONNECTICUT v. ROY AMBROS SCOTT
    (SC 16240)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued September 19, 2000
    officially released July 3, 2001

      Jon L. Schoenhom, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

A jury found the defendant, Roy Ambros Scott, guilty of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1) and attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49 (a) (2). The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed to the Appellate Court, which affirmed the judgment of conviction, with one judge dissenting. State v. Scott, 55 Conn. App. 660, 669, 740 A.2d 441 (1999). We granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly reject the defendant’s claim that the [trial] court’s instruction regarding [the penetration element of] attempted sexual assault in the first degree was constitutionally inadequate?” State v. Scott, 252 Conn. 918, 744 A.2d 439 (2000). We agree with the defendant that, contrary to the conclusion of the majority of the Appellate Court panel, the trial court’s instruction on attempted sexual assault in the first degree was constitutionally infirm, thereby entitling the defendant to a new trial on that charge. Consequently, we reverse the judgment of the Appellate Court with respect to that charge.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. “On the evening of December 31,1995, the victim, her friend, Zelda Brown, Brown’s fiance, Fhde Gray, and the defendant met at the victim’s apartment in East Hartford for cocktails. After a few drinks, the group proceeded in Gray’s car to a social club in Hartford to celebrate New Year’s Eve. Shortly before the club closed at 2 a.m., the victim paged her boyfriend, William Bruce Maddox, and, when he returned her call, asked him to meet her later at her apartment. As the victim left the club with Gray and the defendant, the defendant produced a nine millimeter Beretta semiautomatic pistol and fired five or six shots into the air.

“When they arrived at the victim’s apartment, the defendant asked if he could use the bathroom. After initially refusing the request, the victim reluctantly agreed. Gray waited downstairs. After using the bathroom, the defendant told the victim that he liked her and kissed her, which she initially returned. As the defendant continued kissing, hugging and grabbing her, however, she told him to ‘chill’ and ‘stop.’ He nonetheless persisted, forcing [the victim] into her bedroom as she continued to protest.

“The victim was unable to push past the defendant, and they fell onto the mattress on the floor. The defendant pulled down the victim’s pants and underwear to her ankles, undid his trousers, produced a condom and told the victim to put it on his penis, which she refused to do. He inserted his penis into her vagina anyway. After engaging in vaginal intercourse with her for some time, he removed his penis from her vagina, grabbed her by the hair and, forcing her head toward his crotch, told her to ‘lick me, lick me.’ The victim refused and began screaming and crying. The defendant then recommenced vaginal intercourse.

“Shortly thereafter, the victim heard Maddox’s car, which was very noisy, and told the defendant that Maddox would ‘kick his ass.’ Grabbing his pistol, which was on the floor, the defendant said that Maddox ‘ain’t gonna do shit,’ looked out the window and returned to the mattress after Maddox drove away. Maddox, seeing the darkened apartment, had assumed that the victim was not yet home and left. The defendant again resumed intercourse with the victim. He still held the gun, although it was not directly pointed at the victim’s head. Rather, the gun was lying near the side of her head. After completing sexual intercourse, the defendant dressed and left. The police arrested him after receiving a complaint from the victim.” State v. Scott, supra, 55 Conn. App. 662-64.

At trial, the defendant testified that he had engaged in vaginal intercourse with the victim, but insisted that the victim had consented to such conduct. The defendant also acknowledged that he had told the victim to lick his penis, but testified that he did not attempt to force the victim to do so. During closing arguments to the jury, defense counsel stated that the victim had consented to vaginal intercourse with the defendant and that the defendant merely had requested oral sex from the victim.

At the conclusion of the trial, the jury found the defendant guilty of aggravated sexual assault in the first degree based on his conduct in compelling the victim to engage in vaginal intercourse with him while he was armed with and displayed a handgun. The jury also found the defendant guilty of attempted sexual assault in the first degree based on his conduct in attempting to compel the victim to perform fellatio on him.

On appeal to the Appellate Court, the defendant claimed, inter alia, that; the trial court improperly had failed to instruct the jury on the essential element of penetration with respect to the charge of attempted sexual assault in the first degree by fellatio. Id., 667. The state acknowledged that the trial court did not expressly instruct the jury regarding the penetration element of that offense, but claimed that, under the circumstances of this case, the trial court’s definition of the term fellatio as “the act of obtaining sexual gratification by oral stimulation of the penis,” coupled with the defendant’s testimony that he had sought to have the victim lick his penis, rendered any instructional impropriety harmless.

A majority of the Appellate Court panel rejected the defendant’s claim of instructional impropriety. Id. Specifically, it concluded that the trial court’s instruction was adequate because the trial court had apprised the jury that its instruction on aggravated sexual assault in the first degree, which informed the jury that penetration is necessary to establish vaginal sexual intercourse, also was applicable to attempted first degree sexual assault by fellatio. Id., 668. Judge Sullivan dissented, concluding that the trial court’s statement to the jury regarding the applicability of the court’s instructions on aggravated first degree sexual assault to attempted first degree sexual assault was not sufficient to apprise the jury of the penetration element of the latter offense. Id., 670-71 (Sullivan, J., dissenting). Judge Sullivan also concluded that this impropriety was harmful; see id., 671 (Sullivan, J., dissenting); because, even though the jury found that the defendant had attempted to force the victim to stimulate his penis orally; see footnote 10 of this opinion; the jury also “could erroneously have concluded that an act that requires no penetration, such as licking, constituted fellatio.” State v. Scott, supra, 55 Conn. App. 671 (Sullivan, J., dissenting). Under Judge Sullivan’s analysis, the defendant’s attempt to compel the victim to “lick” him would not subject him to liability for attempted sexual assault in the first degree by forcible sexual intercourse in violation of §§ 53a-70 (a) and 53a-49, but, rather, for the lesser offense of attempted sexual assault in the third degree by forcible sexual contact in violation of General Statutes §§ 53a-72a (a) (l) and 53a-49.

On appeal to this court, the defendant renews his claim of instructional impropriety with respect to the charge of attempted sexual assault in the first degree. For the reasons set forth by Judge Sullivan in his dissent from the majority opinion of the Appellate Court, we agree with the defendant that he is entitled to a new trial on that charge.

I

We turn first to the conclusion of the Appellate Court majority that the trial court adequately instructed the jury on the penetration element of attempted sexual assault in the first degree in view of the court’s reference to its instructions regarding the offense of aggravated sexual assault in the first degree. We agree with the defendant that the trial court’s reference back to its instructions on aggravated sexual assault in the first degree was inadequate to inform the jury of the penetration requirement of attempted sexual assault in the first degree by fellatio.

We note, preliminarily, that our analysis of the defendant’s claim “begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Valinski, 254 Conn. 107, 119-20, 756 A.2d 1250 (2000).

The trial court instructed the jury with respect to the first count, namely, aggravated sexual assault in the first degree, in relevant part: “Sexual intercourse is defined in several ways in our statute. As it pertains [to] this count, it means vaginal intercourse. Penetration, however slight, is sufficient to complete vaginal intercourse . . . .” (Emphasis added.) The trial court thereafter instructed the jury with respect to the second count, namely, attempted sexual assault in the first degree: “I just finished charging you on [sexual assault in the first degree] as part of the first count. I don’t think I need to repeat it at this point. I can tell you that my instruction to you on that is the same as I would instruct you on this, the second count, with two exceptions. . . . [T]he second distinction between count two and the first [count] is that the sexual intercourse claimed in this count to have been attempted is fellatio rather than vaginal intercourse. And I would instruct you that fellatio is, of course, the act of obtaining sexual gratification by oral stimulation of the penis.” (Emphasis added.) The trial court did not inform the jury that penetration also is a requirement of the crime of sexual assault in the first degree by fellatio.

A careful examination of the relevant portion of the trial court’s instructions; see footnote 8 of this opinion; persuades us that the jury was not likely to have understood that penetration is an element of attempted first degree sexual assault by fellatio. The trial court’s reference to penetration in connection with its instruction on aggravated sexual assault in the first degree was limited to its definition of vaginal intercourse-, the court neither stated nor intimated that penetration is a requirement generally of the crime of attempted sexual assault in the first degree. Thus, when the court referred back to its instructions on aggravated first degree sexual assault in connection with its instruction on attempted first degree sexual assault by fellatio, there was no reason for the jury to have known that proof of penetration was necessary to find the defendant guilty of attempted first degree sexual assault by fellatio as well as of aggravated first degree sexual assault by vaginal intercourse. That reference, therefore, was insufficient to inform the jury of the penetration element of attempted first degree sexual assault by fellatio.

II

We next address the state’s claim that, in the circumstances of this case, the trial court’s failure to instruct the jury that penetration is an essential element of the crime of attempted first degree sexual assault by fellatio did not deprive the defendant of a fair trial on that charge. We disagree.

The state advances two separate arguments in support of its claim that the defendant has failed to demonstrate that he is entitled to a new trial on the attempted first degree sexual assault charge. First, the state asserts that the trial court’s definition of the word “fellatio” as “the act of obtaining sexual gratification by oral stimulation of the penis,” coupled with the defendant’s concession during his testimony that he had implored the victim to “lick him” and defense counsel’s statement during closing arguments that the defendant had sought oral sex from the victim, satisfied the statutory requirement of penetration. Specifically, the state asserts that “[u]nder the circumstances of this case, there is no reasonable possibility that any juror would have understood ‘oral stimulation’ of the penis to mean anything other than insertion of the penis into the victim’s mouth.” We are not persuaded by this argument.

Although the defendant acknowledged that he sought to have the victim lick his penis, he did not concede that he ever attempted to have the victim insert his penis into her mouth. The act of licking a penis does not require insertion of the penis into the mouth. Thus, the jury reasonably may have found that the defendant sought to obtain “sexual gratification by oral stimulation of the penis” by having the victim lick his penis rather than having her insert his penis into her mouth. Contrary to the state’s argument, therefore, there is a reasonable likelihood that, under the trial court’s instructions, the jury convicted the defendant of attempted first degree sexual assault by fellatio without the required predicate finding of attempted “[pjenetration, however slight.”

The state also contends that any instructional impropriety was harmless because, “properly construed, [the requirement of] ‘penetration, however slight,’ occurs whenever the penis is stimulated by the mouth, tongue or lips, whether or not the penis is actually inserted into the mouth.” In support of this contention, the state asserts that the defendant’s demand to the victim that she lick his penis is “[no] less intrusive, demeaning or traumatizing” than a demand that the victim insert his penis into her mouth and, consequently, that “[t]his court should feel warranted in construing ... § 53a-70 (a) (1) as intending to prohibit stimulation of the penis by the mouth, tongue or lips, regardless of whether the organ is actually placed in the mouth of the person performing the sexual act.” We also are unpersuaded by this argument.

“[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). Thus, only if the defendant’s attempt to compel the victim to lick his penis satisfies the penetration requirement of the offense of first degree sexual assault by fellatio would the trial court’s failure to instruct the jury regarding that requirement be harmless beyond a reasonable doubt in light of the defendant’s own testimony that he told the victim to lick his penis.

Our resolution of this issue is guided by well established principles. “We have long held that [c]riminal statutes are not to be read more broadly than their language plainly requires . . . .” (Internal quotation marks omitted.) State v. Crowell, 228 Conn. 393, 400, 636 A.2d 804 (1994). Thus, we begin with the proposition that “[cjourts must avoid imposing criminal liability where the legislature has not expressly so intended . . . and ambiguities are ordinarily to be resolved in favor of the defendant.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996). In other words, “penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.” (Internal quotation marks omitted.) State v. Woods, 234 Conn. 301, 308, 662 A.2d 732 (1995). “[Tjhis does not mean [however] that eveiy criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature. . . . No rule of construction . . . requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that, the act be given the narrowest meaning. It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature].” (Citation omitted; internal quotation marks omitted.) Singh v. Singh, 213 Conn. 637, 646, 569 A.2d 1112 (1990). “The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1 (a); State v. Mattioli, [210 Conn. 573, 579, 556 A.2d 584 (1989)]; also guides our interpretive inquiry.” (Internal quotation marks omitted.) State v. Woods, supra, 309.

With these principles in mind, we turn to the issue of whether the penetration element of sexual assault in the first degree by fellatio is satisfied when the victim of the sexual assault is compelled to lick the perpetrator’s penis without necessarily also being compelled to insert the penis into the mouth. We conclude that it is not.

“In this case, neither the defendant nor the state argues that the word [penetration] in [General Statutes § 53a-65 (2)] is unclear or ambiguous, nor does the fact that opposing counsel contend for different meanings support such a characterization. . . . Furthermore, the text of the statute nowhere indicates that the legislature intended to assign to the word anything other than its ordinary meaning. Accordingly, in the absence of other statutory guidance, we may appropriately look to the meaning of the word as commonly expressed in the law and in dictionaries.” (Citation omitted.) State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990); accord State v. Woods, supra, 234 Conn. 309.

“Penetration” is defined as “the act or process of penetrating,” and “penetrate” means “to pass into or through” or “to extend into the interior of . . . .” (Emphasis added.) Webster’s Third New International Dictionary. Thus, under §§ 53a-70 and 53a-65 (2), it is necessary for the state to establish that the defendant intended to insert his penis into the victim’s mouth.

The act oflicking a penis does not satisfy this requirement. That act involves extending the tongue from the mouth, not inserting the penis into the mouth. The state does not seriously contest that fact, but, rather, suggests that we are not bound to follow the definition of the term “penetration” strictly in circumstances, as the state contends exist in this case, in which the act sought to be compelled is as “repulsive and abhorrent” as the forced insertion of the penis into the mouth. We do not disagree with the state’s characterization of the defendant’s conduct in this case. We reject the state’s argument, however, because it is contrary both to the plain language of § 53a-65 (2) and to the principle that criminal statutes “must be construed strictly against the state and liberally in favor of the accused.” (Internal quotation marks omitted.) State v. Crowell, supra, 228 Conn. 400.

We also are not persuaded that the interpretation urged by the state can be squared with the purpose of the phrase “penetration, however slight.” This court recently had occasion to consider the purpose of that requirement in State v. Albert, 252 Conn. 795, 750 A.2d 1037 (2000), in which we stated: “Although the plain language of the statute does not specify what must be penetrated, the legislature, in using the phrase [penetration, however slight, evinced an intent to incorporate, into our statutory law, the common-law least penetration doctrine. . . . We first encounter the notion that the least penetration is sufficient to complete the crime of rape in State v. Shields, 45 Conn. 256 (1877). [In that case] [t]he defendant requested that the trial court charge the jury that to constitute rape actual penetration of the body of the woman by the insertion into her of the private parts of the accused is absolutely necessary. Id., 259. After charging as requested, the court added, but the least penetration is sufficient .... [This] [c]ourt affirmed the charge as correct. Id., 263. . . .

“[Thus], in . . . Shields ... we upheld a jury charge that referred to penetration of the body . . . and stated that the least penetration doctrine is sufficient [to commit rape].” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Albert, supra, 252 Conn. 804-805. In Albert, we concluded “that the public policy underlying our holding in Shields, namely, that the least penetration of the body is sufficient to commit rape, was to protect victims from unwanted intrusions into the interior of their bodies [and that] [t]he legislature endorsed this public policy through its codification of the phrase ‘[penetration, however slight’ in § 53a-65 (2).” (Emphasis added.) Id., 805.

Upon application of the statutory penetration requirement in Albert, we concluded that, for purposes of first degree sexual assault by vaginal intercourse, the state need not prove penetration of the vagina, but, rather, penetration of the labia majora. See id., 806, 809. In so concluding, we explained that a touching of the labium majora satisfies the penetration requirement of §§ 53a-70 and 53a-65 (2) “because penetration of the labia majora constitutes penetration of the body . . . .” Id., 805.

Albert supports our conclusion that the penetration requirement is met, for purposes of first degree sexual assault by fellatio, when a perpetrator forcibly inserts his penis into the victim’s mouth. Upon proof of such conduct, both the plain language of § 53a-65 (2) and its purpose are satisfied: the forcible insertion of the penis into the victim’s mouth constitutes an unwanted intrusion “into the interior of [the victim’s] body.” Id. The act of licking a penis, by contrast, does not satisfy the penetration element of §§ 53a-70 and 53a-65 (2): that act simply does not involve an intrusion into the interior of the body. To conclude otherwise would require us to stretch the statutory language beyond its breaking point; indeed, it would require us to read the penetration element out of the statute. Thus, as Judge Sullivan stated in his dissent from the majority opinion of the Appellate Court, the defendant’s “conduct would constitute [attempted] sexual contact [under § 53a-65 (3)] rather than [attempted] sexual intercourse [under § 53a-65 (2)].” (Emphasis in original.) State v. Scott, supra, 55 Conn. App. 671 (Sullivan, J., dissenting). It may be that, as a matter of policy, penetration should not be an element of sexual intercourse by fellatio. That, however, is a matter of legislative policy, and we are not free to void it by giving the term a meaning that its use in the language simply will not bear.

The judgment of the Appellate Court is reversed with respect to the defendant’s conviction for attempted sexual assault in the first degree and the case is remanded to that court with direction to reverse in part the judgment of the trial court and to remand the case to that court for a new trial on the charge of attempted sexual assault in the first degree.

In this opinion BORDEN, NORCOTT and VERTE-FEUILLE, Js., concurred.

KATZ, J.,

dissenting. On appeal to the Appellate Court, the defendant claimed that the trial court improperly had failed to instruct the jury on the essential element of penetration with respect to the charge of attempted sexual assault in the first degree by fellatio in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49 (a) (2). State v. Scott, 55 Conn. App. 660, 667, 740 A.2d 441 (1999). The state acknowledged that the trial court did not expressly instruct the jury regarding the penetration element of that offense, but claimed that, under the circumstances of this case, the trial court’s definition of the term “fellatio” as “ ‘the act of obtaining sexual gratification by oral stimulation of the penis’ id., 668; coupled with the defendant’s testimony that he had sought to have the victim lick his penis, rendered any instructional impropriety harmless.

The Appellate Court rejected the defendant’s claim of instructional impropriety. Id. The court concluded that the trial court’s charge was adequate because it had apprised the jury that the instruction on the other charge against the defendant, aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), informed the jury that penetration is necessary to establish vaginal sexual intercourse, and that that charge also was applicable to attempted first degree sexual assault by fellatio, the only difference being the type of intercourse charged. Id., 667-68.

In this certified appeal, the defendant reasserts his claim of instructional impropriety with respect to the charge of attempted sexual assault in the first degree by fellatio. The majority of this court concludes, contrary to the determination of the Appellate Court, that the trial court improperly failed to instruct the jury that penetration is an essential element of the crime of sexual assault in the first degree by fellatio. The majority also concludes that that impropriety was not harmless beyond a reasonable doubt. Although I agree with the majority that the trial court’s reference to its prior instructions on the aggravated sexual assault charge was inadequate to inform the jury of the penetration requirement under the attempted sexual assault charge, I respectfully disagree with its determination as to harmlessness.

The state acknowledges that the trial court did not instruct the jury that penetration is a requirement of the crime of sexual assault in the first degree by fellatio. It claims, however, that, in the circumstances of this case, that failure did not deprive the defendant of a fair trial. Specifically, the state claims that any instructional impropriety was harmless in light of the defendant’s testimony that he sought to have the victim lick his penis. I agree with the state.

The standard by which harmless error in omitted jury instructions should be measured is well settled. “A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent error .... Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).” (Emphasis in original; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 794, 772 A.2d 559 (2001). Therefore, I agree with the majority that, “if the defendant’s attempt to compel the victim to lick his penis satisfies the penetration requirement of the offense of first degree sexual assault by fellatio . . . the trial court’s failure to instruct the jury regarding that requirement [was] harmless beyond a reasonable doubt in light of the defendant’s own testimony that he told the victim to lick his penis.”

Resolution of this issue is guided by well established principles. “We have long held that criminal statutes are not to be read more broadly than their language plainly requires . . . .” (Internal quotation marks omitted.) State v. Crowell, 228 Conn. 393, 400, 636 A.2d 804 (1994). “[Although we recognize the fundamental principle that [penal] statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. . . . State v. Burns, 236 Conn. 18, 26-27, 670 A.2d 851 (1996).” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 330, 692 A.2d 713 (1997). “[Construction should not exclude common sense so that absurdity results and the evident design of the legislature is frustrated. State v. Pastet, 169 Conn. 13, 21-22, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S. Ct. 297, 46 L. Ed. 2d 270 (1975). If two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable, not the one leading to difficult and bizarre results. Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958).” State v. McFarland, 36 Conn. App. 440, 446, 651 A.2d 285 (1994), cert. denied, 232 Conn. 916, 655 A.2d 259 (1995).

Moreover, even where a criminal statute is at issue, this court has shown a “disinclination to interpret statutes in a vacuum. . . . Where a court possesses clues to the meaning of a statute, there certainly can be no rule of law which forbids [their] use, however clear the words may appear on superficial examination.” (Citation omitted; internal quotation marks omitted.) State v. Golino, 201 Conn. 435, 442, 518 A.2d 57 (1986). No rule of construction demands that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope. “It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature].” (Internal quotation marks omitted.) Singh v. Singh, 213 Conn. 637, 646, 569 A.2d 1112 (1990).

Against this background, we must decide whether the penetration requirement of forcible sexual intercourse by fellatio is satisfied when the victim of the sexual assault is compelled to lick the peipetrator’s penis without necessarily also being compelled to insert the penis into her mouth. Contrary to the majority, I would conclude that it is. In other words, I do not distinguish between a penis that is stimulated orally inside the mouth and one that is stimulated orally by the tongue protruding beyond the lips.

It is well established that, when determining the meaning of a word, “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). “Penetration” generally is defined as “the act or process of penetrating,” and “penetrate” means “to pass into or through ... to extend into the interior of . . . .” Webster’s Third New International Dictionary. As we recently have indicated, however, “the plain language of [General Statutes § 53a-65 (2)] does not specify what must be penetrated . . . .” (Emphasis in original.) State v. Albert, 252 Conn. 795, 804, 750 A.2d 1037 (2000).

1 agree with the state that the penetration requirement is met when an accused, by the use or threat of use of force, compels a victim to extend her tongue outside the mouth’s customary boundary, that is, the lips, for the purpose of forcing the victim to take the accused’s penis onto her tongue. The tongue is an integral part of the mouth, in essence, its floor. Indeed, it is difficult to imagine an act of fellatio without the use of the tongue. In these particular circumstances, it is reasonable to treat the usual boundary of the mouth as having been extended by the reach of the victim’s tongue beyond the lips. When the forcible extension of the victim’s tongue from its usual place within the oral cavity is viewed as extending the boundary of the mouth, the conduct of the accused in compelling the victim to lick his penis reasonably may be considered a violation, or penetration, of the boundary of the mouth as so extended.

This conclusion is supported by the fact that “the legislature, in using the phrase ‘[pjenetration, however slight,’ [in § 53a-65 (2)] evinced an intent to incorporate, into our statutory law, the common-law least penetration doctrine.” Id. Like the majority, I turn to the explanation we provided in Albert. “We first encounter the notion that the least penetration is sufficient to complete the crime of rape in State v. Shields, 45 Conn. 256 (1877). [In Shields, the] defendant requested that the trial court charge the jury that to constitute rape actual penetration of the body of the woman by the insertion into her of the private parts of the accused is absolutely necessary. Id., 259. After charging as requested, the court added, but the least penetration is sufficient .... Id. [This court] affirmed the charge as correct. Id., 263. . . . [Thus], in . . . Shields . . . we upheld a jury charge that referred to penetration of the body . . . id., 259; and stated that the least penetration is sufficient [to commit rape]. ... We conclude that the public policy underlying our holding in Shields, namely, that the least penetration of the body is sufficient to commit rape, was to protect victims from unwanted intrusions into the interior of their bodies. The legislature endorsed this public policy through its codification of the phrase [p]enetration, however slight in § 53a-65 (2).” (Citation omitted; emphasis altered; internal quotation marks omitted.) State v. Albert, supra, 252 Conn. 804-805.

The public policy underlying the least penetration doctrine of § 53a-65 (2), which defines the term “sexual intercourse” for puiposes of § 53a-70, would be furthered by a determination that the conduct at issue in the present case satisfies the penetration requirement of that statutory provision. Although the tongue may be extended from its usual location inside the oral cavity, it is a part of the mouth’s internal structure. Thus, when an attacker compels his victim to lick his penis by forcibly removing the victim’s tongue from inside her mouth, the gross nature of that unwanted bodily intrusion is obvious. As we have stated, “[t]he penetration, however slight language of [§ 53a-65 (2)] is a common-law carryover that was designed to . . . punish the fact, not the degree, of penetration.” (Internal quotation marks omitted.) Id., 805. A conclusion that the defendant’s conduct here does not satisfy the least penetration principle would fly in the face of common sense and, even more importantly, the clear public policy underlying our sexual assault statutes generally and § 53a-65 (2) specifically. See, e.g., State v. Cobb, 251 Conn. 285, 387, 743 A.2d 1 (1999), cert. denied, 531 U.S. 84, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000) (“This court does not interpret statutes in a vacuum, nor does it refuse to consider matters of known historical fact. . . . And although criminal statutes are strictly construed, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.” [Internal quotation marks omitted.]).

I recognize that the common definition of fellatio is oral stimulation of the penis and that fellatio can exist in the absence of penetration of the oral cavity. By adding to that definition the requirement of penetration, the legislature made mere placement of the victim’s mouth on the penis insufficient as a basis upon which to convict under § 53a-70. In my view, the element of penetration is satisfied by penetration of the oral cavity, •that is when the victim has been forced to extend her tongue outside the mouth’s customary boundary, the lips. The extension of the victim’s tongue from its customary home extends the boundary of the mouth, and the placement of the penis on the tongue constitutes actual penetration. When the defendant forcibly touches the victim’s tongue with his penis, whether the victim’s tongue happens to be inside or outside the mouth when the unwanted touching occurs, the penetration requirement is satisfied. A statute should not be interpreted to thwart its purpose simply because the legislature’s purpose could have been more clearly stated. See Frillici v. Westport, 231 Conn. 418, 435-36, 650 A.2d 557 (1994). “ ‘[W]e will assume that the legislature intended to accomplish a reasonable and rational result.’ ” State v. Brown, 235 Conn. 502, 516, 668 A.2d 1288 (1995), quoting State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995). It is inconceivable to me that the legislature intended to draw the distinction that the defendant makes and the majority endorses.

Accordingly, I respectfully dissent.

       General Statutes § 53a-70a provides in relevant part: “(a) A person is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense (1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon . . .
      Subsection (a) of § 53a-70a was subject to technical amendments only in 1999. See Public Acts, Spec. Sess., June, 1999, No. 99-2, § 50. We, therefore, refer to the current revision for convenience.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”
      General Statutes § 53a-65 (2), which defines the term “sexual intercourse” for purposes of § 53a-70 (a), provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       The trial court sentenced the defendant to a term of imprisonment of fifteen years, execution suspended after twelve years, for the offense of aggravated sexual assault in the first degree, and a consecutive term of imprisonment of eight years, execution suspended after four years, for the offense of attempted sexual assault in the first degree, for a total effective prison term of twenly-three years, execution suspended after sixteen years. The trial court also imposed a five year period of probation.

       The defendant’s conviction for aggravated sexual assault in the first degree is not a subject of this appeal.

       The defendant originally was charged with attempted aggravated sexual assault in the first degree stemming from his alleged attempt to compel the victim to perform fellatio on him while he was armed. At the conclusion of the state’s case, the trial court granted the defendant’s motion for a judgment of acquittal on that offense. The trial court, however, denied the defendant’s motion for a judgment of acquittal on any lesser included offense, including attempted sexual assault in the first degree.

       The defendant also claimed that: (1) there was insufficient evidence to support either of his convictions; and (2) the trial court improperly failed to instruct the jury on the defense of abandonment in connection with the charge of attempted sexual assault in the first degree. State v. Scott, supra, 55 Conn. App. 662. The Appellate Court rejected both of these claims; id., 664, 669; neither of which is a subject of this appeal.

       The trial court instructed the jury as follows: “Going to the first count . . . that is, the crime of aggravated sexual assault in the first degree . . . a person is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree and, in the commission of such offense, he is armed with or displays or represents by his conduct that he possesses a deadly weapon.
      “And now I will explain to you what is meant by sexual assault in the first degree. A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such person or by the threat of use of force against such person, which reasonably causes such person to fear physical injury to herself.
      “For you to find the defendant guilty of this charge, the state must prove each of the following elements beyond a reasonable doubt: One, that the defendant compelled another person, [the victim], to engage in sexual intercourse, and two, that the sexual intercourse was accomplished by the use of force against [the victim], or by the threat of use of force against her, which reasonably caused [the victim] to fear physical injury to herself.
      “Sexual intercourse is defined in several ways in our statute. As it pertains [to] this count, it means vaginal intercourse. Penetration, however slight, is sufficient to complete vaginal intercourse and does not require the emission of semen.
      * * *
      “I’m going to read now count number two from the information. [The state] further accuses the defendant ... of the crime of attempted sexual assault in the first degree and alleges that, on the same date as in count one, at the same time as in count one and in the same place as in count one, the defendant . . . acting with the kind of mental state required for the commission of the crime of sexual assault in the first degree, intentionally did something which, under the circumstances as he believed [them] to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime of sexual assault in the first degree in that he attempted to compel [the victim] to engage in the act of fellatio in violation of the pertinent statute.
      “So, in this count, the defendant is charged with attempting to commit the crime of sexual assault in the first degree. Under our law, the attempt to commit a crime, even if that attempt is not successful, is just as criminal as actually committing the attempted crime. This requires, therefore, that I explain to you both the elements of the crime of sexual assault in the first degree, the crime which the state claims the defendant attempted, and the elements of the crime of attempting to commit that crime.
      “Now as to the underlying crime of sexual assault in the first degree, I just finished charging you on that particular crime as part of the first count. I don’t think I need to repeat it at this point. I can tell you that my instruction to you on that is the same as I would instruct you on this, the second count, with two exceptions. First . . . there was no evidence presented relative to this second count of any threat of use of force against [the victim] by the defendant. And so you will disregard that element that pertain[s] to count one only. Secondly, the second distinction between count two and the first [count] is that the sexual intercourse claimed in this count to have been attempted is fellatio rather than vaginal intercourse. And I would instruct you that fellatio is, of course, the act of obtaining sexual gratification by oral stimulation of the penis.
      “Otherwise, the instructions that I have given you regarding sexual assault in the first degree apply equally to this, the second count.”

       The defendant did not object to the trial court’s instructions regarding penetration and, therefore, sought to prevail on his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). See State v. Scott, supra, 55 Conn. App. 667. Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 239-40. Because the record is adequate for consideration of the defendant’s claim and because his claim implicates his due process right to a jury instruction informing the jury of the elements of the offense; see State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“an improper jury instruction as to an essential element of the crime charged may result in a violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction”); the Appellate Court properly concluded that the defendant was entitled to appellate review of his claim.

       Implicit in the state’s contention is the fact that the jury, by virtue of its guilty verdict, necessarily rejected the defendant’s testimony that he did not seek to compel the victim to stimulate his penis orally, but, rather, merely requested that she do so. The defendant does not challenge this necessary implica! ion of the jury verdict.

       We note that the state did not advance this theory of affirmance in the Appellate Court.

       Since the issuance of the Appellate Court opinion in this case, Judge Sullivan has been appointed Chief Justice of this court.

       General Statutes § 53a-65 (3) defines sexual contact as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”
      Under General Statutes § 53a-65 (8), “ ‘[i]ntimate parts’ [include] the genital area, groin, anus, inner thighs, buttocks or breasts.”

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person . . . which reasonably causes such other person to fear physical injury to himself or herself . . . .”

       As we have indicated, the state did not advance this position in the Appellate Court; see footnote 11 of this opinion; and, “upon due consideration,” the state has “respectfully decline[d]'’ to do so in connection with the defendant’s appeal to this court.

       Because the word “fellatio” is not defined in our statutes, the trial court properly explained the term in accordance with its “common understanding ... as expressed in the dictionary.” (Internal quotation marks omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 696, 755 A.2d 850 (2000); see also General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be used according to the commonly approved usage of the language”). The defendant does not challenge the propriety of the trial court’s definition of that term.

       Indeed, as Judge Sullivan pointed out in his dissent from the majority opinion of the Appellate Court, “the statutory definition of sexual intercourse [for purposes of the offense of first degree sexual assault includes] four acts, only three of which require penetration.” State v. Scott, supra, 55 Conn. App. 671 {Sullivan, J., dissenting), citing General Statutes § 53a-65 (2).

       Defense counsel characterized the defendant’s statement to the victim seeking to have her lick his penis as a “request for oral sex” and as a request that the victim “do oral on him.”

       In support of this claim, the state cites to the definition of the word “oral” as “of, relating to, or belonging to the mouth . . . .” Webster’s Third New International Dictionary.

       As we previously have indicaled; see footnote 10 of this opinion; the jury, by virtue of its guilty verdict on the count of attempted sexual assault in the first degree by fellatio, necessarily found that the defendant had attempted to compel the victim to stimulate his penis orally.

       The common-law crime of rape has been assimilated into our state’s sexual assault statutes.

       “Webster’s Third New International Dictionary defines labia majora as ‘the outer fatty folds bounding the vulva.’ ” State v. Albert, supra, 252 Conn. 798 n.5. Thus, “the labia majora form the boundaries of a fissure, or opening, associated with the female genitals.” Id., 809 n.17.

       We need not, in the present case, define with particularity where the outer boundary of the mouth lies for purposes of the penetration element of §§ 53a.-70 and 53a-65 (2). Nevertheless, penetration cannot be achieved when the tongue is extended from the mouth while in contact with the penis.

       As we also noted in Albert,, “the penetration, however slight language of [§ 53a-65 (2)] is a common-law carryover that was designed to . . . punish the fact, not the degree, of penetration.” (Internal quotation marks omitted.) State v. Albert, supra, 252 Conn. 805. The act of licking, however, does not require any penetration of the mouth.

       When the legislature has determined that penetration is not a necessary element of sexual intercourse, it has made that determination clear: under the terms of § 53a-65 (2), sexual intercourse by cunnilingus, in contrast to sexual intercourse by vaginal intercourse, anal intercourse and fellatio, carries no penetration requirement.

       See footnote 13 of this opinion.

       The jury, by virtue of its guilty verdict on the charge of attempted sexual assault in the first degree by fellatio, necessarily found that the defendant had attempted to compel the victim to stimulate his penis orally.

       The crime of rape has been assimilated into our state’s sexual assault statutes.

       “We are not satisfied to be right, unless we can prove others to be quite wrong.” W. Hazlitt, Note-Books (1856) p. 236. Therefore, I look to the legislature to clarify the meaning of penetration in accordance with this dissent.


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHRISTIE MIKOLINSKI
    (SC 16275)
    Borden, Norcott, Katz, Palmer and Zarella, Js.
    Argued March 16
    officially released July 3, 2001

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The issue raised in this certified appeal is whether a sobriety checkpoint established for the purpose of detecting violations of General Statutes (Rev. to 1997) § 14-227a (a) violates the provisions of article first, §§ 7 or 9, of the constitution of Connecticut. The defendant, Christie Mikolinski, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. Before her trial to the court commenced, the defendant filed a motion to dismiss the information and a motion to suppress, claiming that the checkpoint at which she was stopped violated her rights under the Connecticut constitution. The trial court denied those motions. Accordingly, the evidence gathered as a result of the stop of the defendant at the checkpoint was introduced against her at her ensuing trial. Following her conviction, the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court; State v. Mikolinski, 56 Conn. App. 252, 262, 742 A.2d 1264 (1999); and, on the granting of certification, the defendant appealed to this court.

The defendant claims that the Appellate Court improperly upheld the trial court’s determination that the sobriety checkpoint instituted by the town of Southington did not violate her rights under article first, §§ 7 and 9, of our state constitution. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The following facts, as stated by the Appellate Court, are relevant to this appeal. “Between 11 p.m. on May 23, 1997, and 3 a.m. on May 24, 1997, the Southington police department conducted a sobriety checkpoint of eastbound and westbound traffic in the area of 1199 Meriden-Waterbury Turnpike. Signs were posted in each direction alerting motorists to the checkpoint, and routes exiting the turnpike were available to motorists in each direction who chose not to enter the checkpoint.

“On May 24, 1997, at approximately 1:35 a.m., the [defendant] entered the checkpoint and stopped her vehicle. While the [defendant] was stopped, a police officer asked her a number of questions. . . . After the defendant admitted that she had been drinking alcohol, the officer directed [her] to an adjacent parking lot where a second officer conducted a detailed investigation. Upon approaching the [defendant’s] vehicle, the second officer smelled a strong odor of alcohol on the [defendant’s] breath and noticed that her eyes were red and glassy. He administered several sobriety tests, all of which the [defendant] failed. The second officer then placed her under arrest for operating a motor vehicle while under the influence of [intoxicating] liquor in violation of ... § 14-227a.” (Citation omitted; internal quotation marks omitted.) Id., 254. Additional facts will be set forth as required.

The state does not dispute the fact that the initial stop of the defendant at the checkpoint constituted a seizure. The state argues as a preliminary matter, however, that, because the defendant voluntarily entered the checkpoint, she cannot now claim that the seizure was unreasonable. Cf. State v. Cobb, 251 Conn. 285, 314-16, 743 A.2d 1 (1999), cert. denied, 531 U.S. 84, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). We need not decide whether the defendant voluntarily entered the checkpoint, however, because, even if we assume, arguendo, that this was not the case, she cannot prevail on her claim.

I

We first address the defendant’s claim that Southington’s sobriety checkpoint violated her rights under article first, § 7. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990), the United States Supreme Court held that the use of highway sobriety checkpoints, such as the one at issue in this appeal, is not prohibited under the fourth and fourteenth amendments to the United States constitution. See id., 455. We are not persuaded that article first, § 7, imposes greater restrictions upon the use of such checkpoints than that imposed by the fourth and fourteenth amendments to the United States constitution as interpreted by the United States Supreme Court in Sitz.

“It is well settled that we are not bound by the decisions of the United States Supreme Court in interpreting the contours of article first, [§ 7] . . . [and] that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Citation omitted; internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 504, 692 A.2d 1233 (1997). “Moreover, we have held that [i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort .... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law. . . . [W]e have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution.” (Citations omitted; internal quotation marks omitted.) State v. DeFusco, 224 Conn. 627, 632, 620 A.2d 746 (1993).

In determining whether the protections secured by article first, § 7, extend beyond those secured by the fourth amendment to the United States constitution, we consider several factors: (1) the text of the constitutional provision; (2) holdings and dicta of Connecticut appellate courts; (3) federal precedent; (4) sister state decisions; (5) historical aspects, including the historical constitutional setting and the debates of the framers; and (6) economic and sociological or policy considerations. E.g., State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992).

Our review of the text and history of article first, § 7, reveals nothing to indicate that it forbids the use of sobriety checkpoints. “The declaration of rights adopted in 1818 appears to have its antecedents in the Mississippi constitution of 1817, which in turn derived from the federal bill of rights and the Virginia declaration of rights of 1776. . . . The search and seizure provision in our 1818 constitution, then article first, § 8, closely resembles the fourth amendment to the United States constitution. Although its enumeration was changed to article first, § 7, when the 1965 constitution incorporated article first, § 4, into article seventh, its language has not been altered since its original adoption.” (Citation omitted; internal quotation marks omitted.) State v. Diaz, 226 Conn. 514, 533, 628 A.2d 567 (1993). The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate. See Moore v. Ganim, 233 Conn. 557, 600, 660 A.2d 742 (1995). Thus, the circumstances surrounding the adoption of article first, § 7, lend weight to the view that, in most cases, a practice permitted under the fourth amendment is permissible under article first, § 7.

We have stated that “[t]here can be no ready test for determining [the] reasonableness [of a search or seizure] other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails. . . . We judge the permissibility of a particular law enforcement practice by balancing its intrusion on the individual’s interests against its promotion of legitimate state governmental interests, and examine the intrusion to determine whether it is the minimum search necessary under the circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Wilkins, supra, 240 Conn. 503; see also State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

In Michigan Dept. of State Police v. Sitz, supra, 496 U.S. 444, the court used the similar balancing test set forth in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976), to weigh “the state’s interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual’s privacy caused by the checkpoints.” (Internal quotation marks omitted.) Michigan Dept. of State Police v. Sitz, supra, 449. The court held that the sobriety checkpoint in that case was consistent with the fourth amendment, reasoning that “the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, [weigh] in favor of the state program.” Id., 455. We conclude that this balancing test, which is consistent with our precedent, provides the proper means by which to assess the validity of sobriety checkpoints under article first, § 7.

In applying this balancing test to the sobriety checkpoint at issue in the present appeal, the defendant does not dispute that the state has a significant interest in preventing motorists from driving while under the influence of alcohol. As the United States Supreme Court noted in Site, “[n]o one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Id., 451.

Against this interest, we balance the level of intrusion on the individual’s privacy caused by a checkpoint. Although sobriety checkpoints may cause motorists a slight inconvenience, we conclude that, when sobriety checkpoints are operated properly, the intrusion on an individual’s privacy is minimal. See id., 451 (“the measure of the intrusion on motorists stopped briefly at sobriety checkpoints ... is slight”).

The balancing test also requires an evaluation of “the degree to which the seizure advances the public interest . . . .” (Citation omitted; internal quotation marks omitted.) Id., 454. We agree with the United States Supreme Court that this inquiry is “not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.” Id., 453. Rather, “the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.” Id., 453-54. We conclude that sobriety checkpoints further the public interest in reducing the number of alcohol related automobile accidents and resulting injuries, fatalities, and costs associated therewith.

The defendant, relying on principles outlined in Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), argues that the officers operating the checkpoint were required to have a reasonable and articulable suspicion that the defendant was engaged in criminal activity before they detained her at the checkpoint. We are not persuaded by this argument.

It is true that “ [applications of Terry principles in the context of motor vehicle stops are . . . embodied in our state constitution. See, e.g., State v. Torres, 230 Conn. 372, 382-83, 645 A.2d 529 (1994) (reasonable articulable suspicion standard); State v. Lamme, [216 Conn. 172, 184, 579 A.2d 484 (1990)] (principles of Terry define when detention is clearly warranted by law under article first, § 9, of state constitution); State v. Dukes, [209 Conn. 98, 122, 547 A.2d 10 (1988)] (state constitution permits police to require occupants to step out of lawfully stopped motor vehicle); State v. Anderson, [24 Conn. App. 438, 441, 589 A.2d 374, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991)] (state and federal constitutions permit brief investigatory stops based on reasonable and articulable suspicion).” State v. Wilkins, supra, 240 Conn. 508-509. None of the foregoing cases, however, involved stops made pursuant to neutral criteria. Rather, in each of the cases, the motorist was singled out by law enforcement officers based upon the officers’ reasonable and articulable suspicion. The Terry standard, which is jyredicated upon police discretion, simply is incompatible with a sobriety checkpoint at which an officer’s discretion as to which cars to stop is eliminated by requiring the officer to stop all cars, or stop cars pursuant to other neutral criteria. As the court remarked in Brown v. Texas, supra, 443 U.S. 47, “[a] central concern in balancing [the public interest in law enforcement with individual liberty] . . . has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Id., 51. We conclude that, just as the Terry standard protects an individual’s freedom from arbitrary police conduct by requiring that a seizure “be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual”; id.; so does the requirement “that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id.

The defendant argues that the checkpoint at issue in this case was not operated pursuant to a plan embodying neutral criteria that limited officers’ discretion as to how individual drivers were to be treated. On the contrary, we agree with the trial court that the plan implemented by Southington police embodied neutral criteria in that it restricted officers’ discretion as to which cars to stop and provided that all drivers were to be treated uniformly during the initial stop. The plan instructed officers to stop all cars and provided officers with three questions that they were to ask all drivers. If, after this initial encounter, an officer had reason to believe that the driver was driving while under the influence, the plan instructed the officer to direct the driver to a safe, off-street location, where another officer was to administer sobriety tests. The trial court found that the checkpoint was implemented “almost to the letter” of the operational plan.

Our conclusion that sobriety checkpoints operated pursuant to neutral criteria are permissible under article first, § 7, is in accord with the decisions of sister state courts upholding the implementation of sobriety checkpoints under their respective state constitutions. E.g., Hagood v. Town Creek, 628 So. 2d 1057, 1062 (Ala. Crim. App. 1993); Mullinax v. State, 327 Ark. 41, 47, 938 S.W.2d 801 (1997); Ingersoll v. Palmer, 43 Cal. 3d 1321, 1325, 743 P.2d 1299, 241 Cal. Rptr. 42 (1987); People v. Rister, 803 P.2d 483, 490-91 (Colo. 1990); State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995); Little v. State, 300 Md. 485, 504, 479 A.2d 903 (1984); State v. Welch, 755 S.W.2d 624, 632-33 (Mo. App. 1988); Bismarck v. Uhden, 513 N.W.2d 373, 378-79 (N.D. 1994); State v. Bauer, 99 Ohio App. 3d 505, 513-14, 651 N.E.2d 46 (1994); Commonwealth v. Blouse, 531 Pa. 167, 173-74, 611 A.2d 1177 (1992); State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997); Carte v. Cline, 194 W. Va. 233, 238, 460 S.E.2d 48 (1995).

II

The defendant next argues that the sobriety checkpoint violated her rights under article first, § 9. We disagree.

Article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” “[W]e have generally characterized article first, § 9, as one of our state constitutional provisions guaranteeing due process of law. See, e.g., State v. Marra, 195 Conn. 421, 425, 489 A.2d 350 (1985); State v. Castonguay, 194 Conn. 416, 420, 481 A.2d 56 (1984); Parks v. Bourbeau, 193 Conn. 270, 278 n.8, 477 A.2d 636 (1984).” State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990).

In Lamme, the defendant challenged the administration of roadside sobriety tests after having been stopped for a motor vehicle infraction. See id., 174. The defendant argued that article first, § 9, prohibits a police officer from detaining an individual unless the officer has probable cause to make an arrest. Id., 176. We rejected this argument, concluding that “the specific content appropriately to be assigned to the phrase ‘clearly warranted by law’ depends on the particular liberty interest that is at stake.” Id., 178. We stated that “[t]he historical roots of ‘except in cases clearly warranted by law’ appear ... to provide protection for personal freedom through a blend of statutory and constitutional rights that, like the text of . . . article first, § 9, incorporates no single constitutional standard.” Id., 179. We held that “the principles underlying constitutionally permissible Terry stops . . . define when detentions are ‘clearly warranted by law’ under article first, § 9.” (Citations omitted.) Id., 184. We then “balanc[ed] the need to search [or seize] against the invasion which the search [or seizure] entails.” (Internal quotation marks omitted.) Terry v. Ohio, supra, 392 U.S. 21. “[In] [balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we [concluded] that the defendant’s brief detention [by police in order to administer the roadside sobriety tests] did not violate his due process rights.” State v. Lamme, supra, 216 Conn. 184.

Thus, in defining the contours of article first, § 9, our first task is to identify the particular liberty interest at stake. In the present case, as in Lamme, the protected liberty interest is the individual’s right to be free from unreasonable police detention while driving a car. Because of the similarity of the liberty interest in the present case with that in Lamme, we conclude that the balancing test that was applied in Lamme appropriately guides our analysis of the defendant’s claim. See id.

In the present case, the defendant does not dispute that “[t]he state has a vital interest in keeping intoxicated drivers off the roads and highways”; State v. Lamme, 19 Conn. App. 594, 599, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); and we have concluded in our discussion of article first, § 7; see part I of this opinion; that this vital interest outweighs the intrusiveness of the checkpoint.

The defendant claims that her right to due process under article first, § 9, was violated “because [a sobriety checkpoint] permitting ‘suspicionless’ seizures [is] not expressly authorized by any statutory or administrative scheme and is not police activity that was authorized under common law.” Nothing in the text or the history of article first, § 9, however, requires common-law, statutory or administrative authorization to conduct an investigatory stop of a motorist. In State v. Lamme, supra, 216 Conn. 185, we concluded, as a matter of state constitutional law, that Terry stops, which are not authorized by any statute or regulation, are permissible under article first, § 9. We stated that “[o]ur appraisal of the due process contours of article first, § 9, leads us to conclude that the principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.” Id., 184. In light of the balance of interests in the present appeal, we are persuaded that a brief investigatory detention at a sobriety checkpoint that is planned and operated pursuant to neutral criteria is consistent with the due process provisions of article first, § 9.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1997) § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       We granted certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the defendant’s detention at a roadside sobriety checkpoint did not violate her rights under either article first, § 7, or article first, § 9, of the Connecticut constitution?” State v. Mikolinski, 252 Conn. 950, 748 A.2d 299 (2000).

       Although the trial court did not find that the defendant had been seized at the checkpoint, we note that the detention of motorists at a checkpoint is a seizure under the United States constitution. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (“a Fourth Amendment ‘seizure’ occurs when a vehicle is stopped at a checkpoint”).

       The defendant does not challenge the legality of the sobriety testing that occurred after one of the officers at the checkpoint noticed that she had exhibited signs of intoxication.

       E.g., State v. Miller, 227 Conn. 363, 386-87, 630 A.2d 1315 (1993) (warrantless search of automobile after police impoundment prohibited under article first, § 7); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (rejecting good faith exception to exclusionary rule under article first, § 7).

       A National Highway Traffic Safety Administration report estimates that, in Connecticut, in 1998 alone, 6000 automobile accidents involved alcohol, resulting in 142 fatalities. The report also estimates that the average cost per mile driven of an accident involving a driver with a blood alcohol level of 0.10 or more is $5.20 per mile driven, as compared to ten cents per mile driven for an accident involving a driver with a blood alcohol level of 0.00. In short, “[w]e . . . recognize that a drunken driver is like a ticking time bomb.” Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) (Peters, J., dissenting).

       The plan provided in relevant part: “On May 23, 1997 the Southington Police Department, will be conducting a Sobriety Checkpoint, for enforcement of Connecticut General Statute[s] § 14-227a Operation while under the influence of liquor or drug or while impaired by liquor. The sobriety checkpoint will be conducted on Meriden Waterbury Turnpike State of Connecticut route [number] 322, starting at 2300 hours on [May 23, 1997], and ending at 0300 hours on May 24, 1997.
      “SOBRIETY CHECKPOINT LOCATION: In the area of 1199 Meriden Waterbury Turnpike.
      “SET UP CHECKPOINT: The checkpoint will monitor both east and westbound traffic for Meriden Waterbury Turnpike. The checkpoint requires that every eastbound and westbound motor vehicle on Meriden Waterbury Turnpike be stopped. Two police officers will be assigned to traffic duty. Three police officers will be assigned as testing officers. There will be a processing officer who is assigned to Police headquarters and he will test all arrested subjects on the Intoxilyzer 5000.
      “There will be signs set up prior to the checkpoint which will allow both eastbound and westbound traffic to turn around if they do not wish to travel through the checkpoint itself. If a vehicle turns around to avoid traveling through the checkpoint it will not be stopped by any officer assigned to the checkpoint. A vehicle that attempts to avoid the checkpoint, and during such avoidance operates in a reckless manner, an officer will attempt to stop this vehicle for general public safety. The officer will speak with the operator about his or her operation, and take the enforcement action necessary.
      “DESIGNATED TESTING AREA: Eastbound and westbound operators will be tested in the parking area of 1199 Meriden Waterbury Turnpike, which is a medium size plaza. This parking area has a covered side walk section and is flat.
      “Sergeant William P. PALMIERI of the Southington Police Department will be the checkpoint supervisor.
      “DUTIES AND ASSIGNMENTS OF OFFICERS:
      “TRAFFIC OFFICERS: One officer will be assigned to eastbound traffic on Meriden Waterbury Turnpike. One officer will be assigned to westbound traffic on Meriden Waterbury Turnpike. Both traffic officers will stop their respective vehicles. The officers will introduce themselves explaining the nature of the sobriety checkpoint. The traffic officers will then ask three standard questions.
      “1. Where are you coming from?
      “2. Have you had anything to drink tonight?
      “3. How much did you drink? (this would only be asked if the person stated they had consumed an alcoholic beverage).
      “During this interview the traffic officers would be looking for clues which would indicate that the operator was under the influence such as slurred speech, smell of alcoholic beverage on breath, glassy eyes etc. If they detected the operator was possibly under the influence they would instruct the operator of the vehicle to pull into the designated testing area. At this point one of the testing officers would take over. If there is no detection of the operator being under the influence the officer will allow the operator to continue on their way.
      “TESTING OFFICERS: These officers will conduct all field sobriety tests. The testing officers will administer the following field sobriety tests, in the same order as listed herein:
      “1. The horizontal gaze nystagmus.
      “2. The walk and turn.
      “3. The one leg stand.
      “If a testing officer has probable cause to believe the subject is intoxicated he/she will then place the subject under arrest, and transport, them to Police Headquarters. If probable cause does not exist for the arrest of the tested subject they will be allowed to exit the testing area.
      “TRANSPORT OFFICER: Will be any available officer. This officer will bring the subject to Police Headquarters and turn the subject over to the processing officer.

        “PROCESSING OFFICER: Will be Officer DOERFLER and he will process all necessary paper work and test all subjects on the Intoxilyzer 5000.
      “ALTERNATIVE CHECKPOINT ROUTE: Putnam Place will allow eastbound vehicles an alternative route other than traveling through the checkpoint. Birch Drive will allow westbound vehicles an alterative route other than traveling through the checkpoint. There will be signs posted prior to these streets warning SOBRIETY CHECKPOINT AHEAD. The Putnam Place warning sign was located approximately [one] tenth of [one] mile west of the checkpoint The [B]irch Drive warning sign was located approximately [one] and one half tenths of [one] mile east of the checkpoint.
      “This operational Plan will allow for changes should the need arise, any changes to this plan will be made by [Sergeant Palmieri], and all officers working the checkpoint will be advised. [Sergeant Palmieri] will then prepare a supplemental case report as to what the change was and why it was needed.”