Opinion
No. LLI-CR07-1245152
June 2, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The defendant, Gabriel Simmons, presently charged with sexual assault in the second degree, risk of injury to a minor and delivery of alcohol to a minor, has moved to dismiss the information, after a jury failed to deliver a unanimous verdict and a mistrial was declared.
I
Connecticut General Statutes § 54-56 provides that "[a]ll courts having jurisdiction of criminal cases . . . may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial."
Under the insufficient evidence prong, the purpose of § 54-56 is to "prevent unchecked power by a prosecuting attorney." State v. Carroll, 13 Conn.Sup. 112, 112 (1944). However, this purpose is not relevant where probable cause has been found and a warrant has been issued. "In such a case, the judicial authority's considered judgment has been interposed between the power of the prosecuting attorney and the rights of the defendant. The prosecutorial power is not unchecked; it has already been subject to the prior check of the judicial authority's `independent determination that probable cause exists as to each element of every crime charged.'" State v. Bellamy, 4 Conn.App. 520, 527, 495 A.2d 724 (1985), citing State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984). The defendant here was arrested pursuant to a warrant prior to the first prosecution.
The defendant, however, relies on State v. Morrill, 193 Conn. 602, 478 A.2d 994 (1984), arguing the state will not produce new evidence, and, therefore, the court should dismiss the information for insufficient evidence. The Appellate Court in State v. Bellamy, supra, CT Page 2794 4 Conn.App. 528, carefully interpreted Morrill to hold that "reliance on § 54-56 to dismiss an information which is preceded by an arrest warrant is appropriate if it is conclusively established that the court has before it all the evidence which the state will be able to produce at trial." In its review of relevant law, the court here fails to find that the state must necessarily provide additional evidence in order to proceed with a new trial. Further, the defendant did not conclusively establish that the court has before it all the state's evidence.
"It has long been the law in Connecticut . . . that it is [the state attorney's] duty to determine whether reasonable grounds exist to proceed with a criminal charge . . ." State v. Dills, 19 Conn.App. 495, 500, 463 A.2d 733 (1989). "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the [state's] enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute." State v. Kinchen, 243 Conn. 690, 699-70, 707 A.2d 1255 (1998). citing Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d. 547 (1985). The court declines to review the state's decision to re-prosecute at this time and instead defers to prosecutorial discretion.
"The insufficient cause prong of § 54-56 stands on somewhat different footing, however, from the insufficient evidence prong. Whereas the insufficient evidence prong invites an inquiry into whether the evidence, viewed most favorably to the state, would support a guilty verdict . . . the insufficient cause prong invokes the notion of fairness that must [permeate] the considerations to be given to the trial court's decision . . ." (Citation omitted; internal quotation marks omitted.) State v. Dills, supra, 19 Conn.App. 501.
In ruling on a motion to dismiss for cause under § 54-56, it is essential for "the court explicitly to weigh all the competing factors and considerations of fundamental fairness to both sides — the defendant, the state and society, and presumably the victim . . . This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state's case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant's defense, the defendant's personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness." (Citation omitted.) Id., 503-04; see State v. Daniels, 209 Conn. 225, 238, 19 Conn.App. 885 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989); State v. Corchado, supra. 200 Conn. 458-59. Dismissal "can be justified only when: (1) the court expressly and carefully has considered all of the relevant competing factors; and (2) dismissal is supported by overriding equitable considerations." State v. Kinchen, supra, 243 Conn. 704.
The court is required to balance both the relative interests of the state and the defendant by applying various factors and considering the fundamental fairness to both sides. The defendant in the present case has been charged with a number of serious crimes involving a minor under the age of sixteen, including risk of injury and sexual assault. Unlike the facts of State v. Corchado, supra, 200 Conn. 453, the court here is proceeding on a motion to dismiss after only one mistrial. Further, the defendant, while incarcerated during the first prosecution, was released upon the conclusion of the first action. The defendant also argues that the strength of the state's case would not uphold a conviction upon re-prosecution nor would a second prosecution accomplish additional justice for society. Once again, after only one mistrial, the court declines to speculate the outcome of a second trial and defers to prosecutorial discretion.
After careful consideration and complete review of the record, the court does not find there are any overriding equitable considerations necessitating a dismissal of the information under § 54-56.
The court also considered the defendant's oral argument regarding the authority to dismiss under Practice Book § 41-8(5) and (9), and found that it was without merit.
II
The defendant next asserts that General Statutes § 53-21 is void for vagueness as applied to the circumstances of the case. "[T]he party attacking a validly enacted statute . . . bears the heavy burden or proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality." (Emphasis added; internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777, 695 A.2d 525 (1997).
"The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited." State v. Burton, 258 Conn. 153, 158-59, 778 A.2d 955 (2001). The doctrine contains two central principles: "the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement." State v. Schriver, 207 Conn. 456, 459-60, 542 A.2d 686 (1988), citing 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).
"This notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent." State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980). To provide fair warning and "surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited." (Internal quotation marks omitted.) State v. Schriver, supra, 207 Conn. 460. "[A] statute which . . . forbids . . . 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." (Internal quotation marks omitted.) State v. Pickering, supra, 60; see State v. Schriver, supra, 461.
However, "[i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [in] 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 . . . Thus, prior decisions of this court which delineate a statute's reach can constitute sufficient notice of the acts prohibited to render the statute constitutional as applied to the particular facts of the case." (Citations omitted; internal quotation marks omitted.) State v. Pickering, supra, 180 Conn. 62-63.
A
The defendant argues that § 53-21 is void for vagueness for lack of definition for the requisite mens rea. The defendant asserts that § 53-21 contains an implied element of knowledge as to the age of the victim. The defendant, further, posits that evidence of deceit by the victim as to her age is relevant evidence. The court, guided by prior decisions, finds little merit to this argument.
In speaking on the legislative intent of § 53-21, the Connecticut Supreme Court in State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), found "[t]he legislature undoubtedly had in mind acts of such a nature that a general criminal intent could be inferred from them." Thus, "[a]ll that [is] required [is] the general intent on that part of the defendant to perform the act which resulted in the injury, that is, that the bodily movement which resulted in the injury was volitional." State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988).
"The state has the burden, therefore, to establish that the defendant had the general intent to engage in the proscribed act that resulted in the sexual assault of the victim. General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. Where a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts." (Internal quotation marks omitted.) State v. Raynor, 84 Conn.App. 749, 759-60, 854 A.2d 1133, cert. denied, 271 Conn. 935, 861 A.2d 511 (2004).
It is clear from the court's review of case law that it is settled law that "[t]o prove that the defendant violated General Statutes § 53-21, `the state must establish beyond a reasonable doubt that (1) the victim was less than sixteen years of age at the time of the incident, (2) the defendant performed an act that was likely to impair the victim's morals, and (3) the defendant had a general intent to perform such act.'" Id., 760 n. 6, citing State v. Cansler, 54 Conn.App. 819, 839, 738 A.2d 1095 (1999). The court rejects defendant's void for vagueness argument regarding mental state. In reaching this conclusion, the court was not swayed by the defendant's policy argument requiring consenting adults to provide documentation of age prior to partaking in any level of sexual activity.
B
The defendant also asserts that § 53-21 is void for vagueness for lack of guidance on the "morals" provision. Again, the court fails to see merit in the defendant's assertion. The court finds prior decisions have supplied fair warning and sufficient guidelines thus giving the defendant notice of "morals."
The defendant is currently charged with risk of injury under § 53-21(a)(2). "[T]he post-1995 amendment version of § 53-21 . . . made express in its terms what [the court] previously . . . defined . . . as conduct constituting risk of injury to a child. The 1995 amendment to § 53-21 divided the risk of injury statute into two subdivisions: Subdivision (1) contains the entire pre-1995 amendment version of the statute . . . and subdivision (2) incorporate[d] the prohibition, which previously had been recognized in our case law, against `contact with the intimate parts . . . of a child . . . in a sexual and indecent manner . . ." State v. James G., 268 Conn. 382, 408-09, 844 A.2d 810 (2004).
The Supreme Court in State v. Schriver, supra, 207 Conn. 461-62, found "[o]n 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. `[A]ny act' may violate the statute so long as it is `likely to impair' a minor's health or moral. Standing alone, the phrase `any act' provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case . . . Nor is the focus of the statute measurably narrowed by the phrase `likely to impair.' In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm." (Citations omitted.)
For due process purposes, case law construing the pre-1995 amendment version of § 53-21 provided the defendant with ample notice that his conduct violated the statute. It has long been established that the "deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of the statute." State v. Pickering, supra, 180 Conn. 64; State v. Zwirn, 210 Conn. 582, 588, 556 A.2d 588 (1989). As was previously established, risk of injury is a general intent crime, and therefore, there is no requirement of "intent by the defendant to achieve some result additional to the act." State v. McClary, supra, 207 Conn. 240; see State v. Dennis, supra, 150 Conn. 251.
The legislature addressed the defendant's concern for overbreadth, as noted by the Connecticut Supreme Court in State v. Zwirn, supra, 210 Conn. 588, stating that "[w]ithout the requirement that the act be done in a sexual and indecent manner, there would be no legal distinction between touching a child's private parts in an innocent manner, e.g., for necessary medical or hygienic purposes, and touching a child's private parts in a manner that violates the statute . . . It is not the act itself that is likely to impair the morals of a child, but the manner in which the act is performed."
The defendant in the present case has made no plausible argument 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. "In light of this extensive judicial gloss on the words `act likely to impair the morals of any child [under the age of sixteen years],' if a person were to consult the statute and the cases, they would give fair warning that the acts the defendant perpetrated . . . were proscribed at the time he committed those acts." State v. Pickering, supra, 180 Conn. 64. The court concludes that a person of ordinary intelligence would know that sexual intercourse is likely to "impair the morals of a minor child," given the judicial gloss proffered by court opinions.
Section 53-21 "does not require a finding that the victim's morals were actually impaired. On the contrary, § 53-21 provides that anyone `who . . . willfully or unlawfully . . . does any act likely to impair the health or morals of any such child' may be found guilty." (Emphasis in original.) State v. Burton, supra, 258 Conn. 161. The defendant in the present case argues that the statute fails to provide guidance as to whose moral standard is to be applied. The Connecticut Supreme Court previously ruled on said issue and found 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." State v. Payne, supra, 240 Conn. 783.
As interpreted by case law, § 53-21(a)(2) provides fair warning of the conduct that is prohibited and is not void for vagueness as applied to the facts here.
III
Based on all considerations, this court is of the opinion that the interest of justice would be ill served by a dismissal of the case at this time under § 54-56. This court is further unpersuaded that the defendant has met his heavy burden, failing to prove that § 53-21, as applied to the circumstances of this case, is unconstitutionally void for vagueness.
WHEREFORE, the defendant's motion to dismiss is denied.