Opinion
No. CR 05-200065
October 20, 2006
The defendant has filed a motion to dismiss the charge of Risk of Injury in violation of C.G.S. § 53-21 against the defendant in that the count as applied is unconstitutionally vague. The parties have presented oral argument on the motions on October 19, 2006. The court reviews the motion under Practice Book § 41-8(8).
The defendant was arrested by warrant on the charge at issue for an incident arising on May 5, 2005 during the course of a wedding held at 400 Oakland Road, South Windsor, Connecticut. A complaint was made on or about May 7th, 2005 by Diane Halibozek, that among other things, Frank Halibozek was swearing in front of children, throwing beer bottles at the wedding cake and asking the children to follow him outside to take "shots" of alcohol. The children in question include Andrew Halibozek who, for purposes of this decision, is assumed to have been nine years of age at the time of the incident. Police investigation showed that Frank Halibozek, at the tine of the incident, was among other things, offering alcohol to Andrew Halibozek and willfully causing such child to be placed in such a situation that this child's health and/or morals were impaired.
The defendant argues that, as applied to him, the charge of Risk of Injury is vague and therefore unconstitutional. It is well recognized that the party attacking a validly enacted statute bears a heavy burden to show that statute's unconstitutionality beyond a reasonable doubt. State v. Payne, 240 Conn. 766, 777, (1997) rev'd other grounds, 269 Conn. 481 (2004). "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 government. Thus, in 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." Id. (citations omitted).
If the statute being attacked does not implicate "the especially sensitive concerns embodied in the first amendment [or other fundamental rights]" then the reviewing court must determine the constitutionality of the statute by considering the applicability to the particular facts at issue. Id., citing State v. Shriver, 207 Conn. 456, 461 (1988). The "fundamental inquiry" the court must make is whether a person of ordinary intelligence would comprehend that the defendant's acts were prohibited.
C.G.S. § 53-21 states in relevant part: "(a) [a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . shall be guilty of a class C felony . . ."
The state points to C.G.S. § 30-86(b), which provides, in pertinent part, that "[a] person who . . . delivers or gives any such liquors to such minor, by any means, . . . shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen-month, or both. The provisions of this section shall not apply . . . (3) to shipment or delivery made to a minor by a parent, guardian or spouse of the minor, provided such parent, guardian or spouse has attained the age of twenty-one and provided such minor possesses such alcoholic beverage while accompanied by such parent, guardian or spouse" as evidence of the legislature's determination that minors are not competent to assume the responsibility of consuming alcohol without the guidance and protection of a parent, guardian or spouse who has attained the age of majority. The defendant does not claim to be the parent, guardian or spouse of the minor Andrew Halibozek. The state further refers to State v. Springman, 69 Conn.App. 400 (2002) as evidence that published judicial opinions gave fair warning to the defendant that his conduct was prohibited by § 53-21. In Springman, 69 Conn.App. at 409, the Appellate Court, in reviewing a claim of void for vagueness under the same statute, stated that the defendant had fair warning, from, among others, the opinion in State v. Mancinone, 15 Conn.App. 251, 276-77 (defendant convicted of risk of injury to child for supplying alcohol and drugs to victims), cert. denied, 209 Conn. 818 (1988), cert. denied, 489 U.S. 1017 (1989) the defendant's actions in supplying alcohol impaired the health and morals of a child and he was placed on notice that he could be held responsible for his actions. The court in Springman at page 409 held that the application of § 53-21 to the defendant's conduct was constitutional, because the statute was not vague.
Even assuming that the minor child in the instant case did not accept the delivery of the alcoholic beverage from the defendant, such fact is not sufficient to distinguish the facts of this case from Springman or Mancinone. See State v. Sorabella, 277 Conn. 155 (2006) at page 202 where the court found that the intent for required under C.G.S. § 53-21 is the general intent to do that which the law prohibits, that is, the intent to cause or permit a situation to arise that is likely to injure the health or impair the morals of a child under the age of sixteen. See also, State v. Scruggs, 279 Conn. 698 (2006) where the court found that a specific intent to cause harm to the victim is not an element of the offense.
The court finds the decisions of State v. Springman and State v. Mancinone to be dispositive here. While it is assumed to be true, as asserted in the Defendant's Motion to Dismiss, that serving alcoholic beverages to a minor is customary in certain religious services, to comport with the requirements of C.G.S. § 30-86, such service or delivery to a minor must be made by a parent, guardian or spouse of the minor. That is not the case in this instance.
Our Supreme Court has recognized that "the general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults." State v. Payne, supra, 771. Accordingly, as applied to the facts in the instant case, § 53-21 provides fair warning to the defendant that his actions were violative of the law.
The motion to dismiss is DENIED.