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STATE OF CONNECTICUT v. JORGE

CARRILLO PALENCIA

(AC 36612)

Gruendel, Alvord and West, Js.

Argued November 17, 2015—officially released January 26, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Wenzel, J. [motions to disqualify];

Holden, J. [judgment; motion to open and set aside

judgment].)

Richard H. G. Cunningham, for the appellant

(defendant).

Jacob L. McChesney, special deputy assistant state’s

attorney, with whom, on the brief, were David I. Cohen,

state’s attorney, and Richard J. Colangelo, Jr., senior

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

GRUENDEL, J. The defendant, Jorge Carrillo Palencia, appeals from the judgment of conviction, rendered

after a court trial, of one count of risk of injury to a

child in violation of General Statutes § 53-21 (a) (1).

On appeal, the defendant claims that (1) the evidence

adduced at trial was insufficient to sustain his conviction and (2) the court improperly dismissed his postsentencing motion to open the judgment of conviction.1

We disagree and, accordingly, affirm the judgment of

the trial court.

On the basis of the evidence presented at trial, the

court reasonably could have found the following facts.

The defendant attended a party with his wife, Wendy

Garrido, on the evening of November 10, 2012. At that

time, the defendant was in his late twenties. The victim

was fourteen years old and a friend of the defendant’s

family.2 The defendant consumed alcohol at the party

and danced with the victim. While they were dancing,

a physical altercation ensued between the victim’s

brother and the defendant. The defendant and Garrido

left the party soon thereafter.

Once home, Garrido went to sleep. The defendant,

who was intoxicated, exited his Stamford home and

received a phone call from the victim minutes later. He

then met with the victim, who had been at her sisterin-law’s home a few blocks away, and transported her

by taxi to a hotel in Norwalk.3 Surveillance photographs

taken at the hotel, which were admitted into evidence

at trial, show the victim and the defendant with their

arms around each other as they checked in, and later

as they walked to their room, at approximately 1 a.m.

on November 11, 2012. That room had only one bed.

Once at the hotel room, the defendant placed a ‘‘do not

disturb’’ sign outside the door.

At approximately 4 a.m. that morning, the victim’s

family contacted the Stamford Police Department

(department) to report that she was missing. Throughout the day, officers unsuccessfully attempted to contact the defendant, sending text messages and leaving

voice messages on his phone. The officers requested

that the defendant bring the victim to the department.

The defendant did not respond to those queries.

During the afternoon of November 11, 2012, the

defendant and the victim travelled from the Norwalk

hotel to a shopping mall in Trumbull. Surveillance photographs from a department store, which also were

admitted into evidence, depict the victim with her arms

wrapped around the defendant. While at the shopping

mall, the defendant purchased items of clothing for the

victim, including underwear. After grabbing a bite to

eat, the defendant and the victim took another taxi ride

to a nearby hotel, where they spent the night.

The victim returned to Stamford on November 12,
2012, arriving at her sister-in-law’s home at approximately 8 p.m. When Officer Jeffrey Hugya of the department met with her soon thereafter, he observed a mark

on her chest that ‘‘appeared to be a hickey.’’4 The defendant subsequently was arrested and charged, in docket

number CR-12-0178925, with one count of risk of injury

to a child in violation of § 53-21 (a) (1).

In April, 2013, the department was contacted by officials at the victim’s school, who, according to Officer

Brian Butler of the department, ‘‘believed that [the victim] was involved in an inappropriate relationship’’ with

the defendant. They notified the department that the

victim had stated that she would not be returning to

school because she was leaving the country with the

defendant. During their investigation of that complaint,

officers found a handwritten document in the victim’s

notebook that contained a drawing oftwo hearts around

the message, ‘‘I love you Jorge Alberto Carrillo Palencia

I love you.’’

The officers interviewed the defendant, who was

accompanied by legal counsel, at police headquarters.

When they asked to see his cell phone, the defendant

stated that he did not have it with him, but would furnish

it in the coming days. After that interview concluded,

the defendant deleted numerous photographs of the

victim from his phone. Several days later, the defendant

surrendered the phone to the police and provided consent to search its contents. At that time, he informed

officers that he accidentally had dropped itinto a bucket

of water the day after being interviewed by police. He

further stated that the phone remained in the bucket of

water for approximately thirty minutes. When officers

inquired how he knew it had been that length of time,

the defendant smirked.

The officers subsequently conducted a forensic investigation on the defendant’s phone. Officer Mark Sinise,

a computer forensic examiner with the department,

testified that, although they were able to extract moisture from the phone by placing it in a bag of rice,

the water exposure had destroyed its battery. Upon

replacing the battery, however, the phone powered up

and Sinise was able to examine its contents. Sinise

discovered thirty-three photographs of the victim on

the defendant’s phone. Those photographs, which were

admitted into evidence, depict the victim in various

states of undress. The victim is fully naked in some

photographs, with her breasts and buttocks exposed.

As a result, the defendant was charged, in docket number CR-13-0180270, with one count of risk of injury to

a child in violation of § 53-21 (a) (1) and one count of

possession of child pornography in the third degree in

violation of General Statutes § 53a-196f (a).

The defendant’s two criminal cases were joined for

a court trial that commenced in the fall of 2013. After

the state rested its case-in-chief, the court granted the
defendant’s motion for a judgment of acquittal on the

possession of child pornography charge. The court reasoned that although the photographs found on the

defendant’s phone featured the victim in ‘‘a nude position,’’ they did not constitute child pornography under

the law, as her ‘‘pubic areas were not exposed.’’5 When

the trial concluded, the court found the defendant guilty

of risk of injury to a child with respect to the events

of November, 2012. The court acquitted the defendant

of the risk of injury charge with respect to the events

of April, 2013. It thereafter sentenced the defendant to

a term of five years incarceration, execution suspended

after fourteen months, followed by a three year term

of probation. This appeal followed.

I

The defendant claims that the evidence adduced at

trial was insufficient to sustain his conviction of risk

of injury to a child. We disagree.

The standard ofreview for claims of evidentiary insufficiency is well established. ‘‘In reviewing a sufficiency

of the evidence claim, we apply a two part test. First,

we construe the evidence in the light most favorable

to sustaining the verdict. Second, we determine whether

upon the facts so construed and the inferences reasonably drawn therefrom the [court, as finder of fact] reasonably could have concluded that the cumulative force

of the evidence established guilt beyond a reasonable

doubt. . . . This court cannot substitute its own judgment for that of the [trial court] if there is sufficient

evidence to support [its] verdict.’’ (Internal quotation

marks omitted.) State v. Allan, 311 Conn. 1, 25, 83 A.3d

326 (2014). In applying that test, ‘‘we do not ask whether

there is a reasonable view of the evidence that would

support a reasonable hypothesis of innocence. We ask,

instead, whether there is a reasonable view of the evidence that supports the [court’s] verdict of guilty.’’

(Internal quotation marks omitted.) State v. Stephen J.

R., 309 Conn. 586, 594, 72 A.3d 379 (2013).

‘‘[T]he 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, 240 Conn. 766, 771, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269

Conn. 481, 490, 849 A.2d 760 (2004). A person violates

§ 53-21 (a) (1) when he or she ‘‘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, or does any act likely to impair

the health or morals of any such child . . . .’’ That

statutory provision ‘‘prohibits two different types of

behavior: (1) deliberate indifference to, acquiescence

in, or the creation of situations inimical to the [child’s]

. . . welfare . . . and (2) acts directly perpetrated on
the person of the [child] and injurious to his [or her]

moral or physical well-being. . . . Thus, the first part

of § 53-21 . . . prohibits the creation of situations detrimental to a child’s welfare, while the second part

proscribes injurious acts directly perpetrated on the

child. . . . Those two types of behavior encompassed

within § 53-21 (a) (1) have been termed the situation

and act prongs.’’(Citation omitted; emphasis in original;

internal quotation marks omitted.) State v. St. Cyr, 100

Conn. App. 189, 200, 917 A.2d 578, cert. denied, 282

Conn. 915, 924 A.2d 140 (2007).

The information filed by the state in docket number

CR-12-0178925 alleged that the defendant placed the

victim in a situation that was likely to impair both her

health and her morals. On appeal, the defendant claims

that the evidence was insufficient to establish the latter.

It nonetheless remains that § 53-21 (a) (1) also proscribes conduct that places a child in situations likely

to injure her health.

We conclude that the evidence amply substantiates

a finding that the defendant caused the victim to be

placed in such a situation. The testimonial and documentary evidence submitted at trial indicates that the

defendant met the fourteen year old victim in the middle

of the night and transported her to an out-of-town hotel

without providing notice to either her parents or his

wife. While at that hotel and a department store the

following day, the victim and the defendant had their

arms around each other. Despite repeated telephone

calls, voicemails and text messages, the defendant did

not respond in any manner to law enforcement officials

or their request to return the victim to the department.

As police investigated her family’s missing person

report, the defendant took the victim shopping and purchased underwear for her. The defendant then took the

victim to a second hotel in yet another town, where

the two again spent the night together alone in a hotel

room. Furthermore, months after this episode, officials

at the victim’s school grew so concerned that she was

engaged in an inappropriate relationship with the defendant that they contacted the department. During their

subsequent investigation, officers learned that the victim had proclaimed her love for the defendant in her

notebook and had announced that she was preparing

to leave the country with him.

As our Supreme Court has held, ‘‘the term ‘health,’

as used in the ‘health is likely to be injured’ language

of § 53-21, includes mental health as well as physical

health.’’ State v. Scruggs, 279 Conn. 698, 713–14, 905

A.2d 24 (2006). In light of the foregoing, the court reasonably could conclude that the defendant placed the

victim in a situation that was likely to injure her mental

health. Significantly, the court had before it evidence

of the child’s fragile mental state. As the defendant

testified at trial, prior to the events in question, the
victim ‘‘always told me that she . . . felt desperate,

lonely, sad. In fact, she once even told me that she

wanted to die and that she was gonna take some pills.

. . . Since I’ve met her, she’s always said the same to

me.’’ The defendant’s conduct in absconding with the

victim to hotels for two days plainly risked injury to

her mental health, as further reflected by the fact that

she subsequently memorialized her love for him and

planned to leave the country—and presumably her family—with him. In addition, the court reasonably could

infer from the surveillance photographs of the victim

with her arms around the defendant and the numerous

nude photographs of the victim found on the defendant’s cell phone that her relationship with the defendant was a very close one.

The defendant nevertheless argues that the court,

in sentencing the defendant, found that there was no

evidence that the defendant actually engaged in sexual

relations with the victim, which he claims is ‘‘dispositive’’ of his evidential insufficiency claim.6 We do not

agree. Section § 53-21 is titled ‘‘Injury or risk of injury

to, orimpairing morals of, children.’’(Emphasis added.)

To obtain a conviction under its situation prong, the

state was not required to prove that sexual conduct

transpired or that the child in question sustained an

injury.7 See State v. Gewily, 280 Conn. 660, 669, 911

A.2d 293 (2006) (‘‘actual injury is not an element of the

‘situation’ prong of § 53-21 [a] [1]’’), and cases cited

therein. With particularrespectto the potentialfor harm

to the mental health of a child, ‘‘the fact finder is not

required to make a determination as to the precise

nature or severity of the injury . . . rather, the fact

finder need only decide whether the accused placed the

child in a situation that was likely to be psychologically

injurious to that child.’’ (Citation omitted; internal quotation marks omitted.) Id., 669. On the basis of the

evidence presented at trial, the court reasonably could

conclude that the defendant’s conduct on November

11 and 12, 2012, placed the victim in such a situation.

Furthermore, our case law recognizes that a child’s

health may be impaired by conduct that separates a

child from her parents. As our Supreme Court has

explained in analyzing a challenge to a conviction under

the situation prong of § 53-21 (a) (1), ‘‘[u]ninterrupted

home life comports . . . with each child’s biological

and psychological need for unthreatened and unbroken

continuity of care by [her] parents. . . . [T]here is little

doubt that breaches in the familial bond will be detrimental to a child’s well-being.’’(Citations omitted; internal quotation marks omitted.) Id., 671. For two days,

that bond was breached, as the defendant transported

the victim to out-of-town hotels while refusing to

respond to the repeated queries of law enforcement

officials—queries instigated by the missing person

report filed by her family. For two days, the fourteen

year old child was under the care and custody of an
adult twice her age. On two consecutive days, she spent

the night alone in hotel rooms with that adult.

Viewing the evidence in the light most favorable to

sustaining the verdict, the court reasonably could conclude that the defendant placed the victim in a situation

that was likely to injure her health.8 The cumulative

effect of the evidence, including reasonable inferences

drawn therefrom, was sufficient to justify the court’s

determination that the defendant was guilty of risk of

injury to a child.

II

The defendant also claims that the court improperly

dismissed his postsentencing motion to open the judgment of conviction. We do not agree.

The following additional facts are relevant to this

claim. The court rendered its verdict of guilty on one

count of risk of injury to a child in violation of § 53-21

(a) (1) on November 14, 2013. On February 20, 2014,

the court sentenced the defendant to a term of five

years incarceration, execution suspended after fourteen months, followed by a three yearterm of probation.

At that time, the court committed the defendant to the

care and custody of the Commissioner of Correction.

On March 7, 2014, the defendant filed a motion to open,

which requested that his judgment of conviction ‘‘be

set aside and reopened and judgment enterfor acquittal/

dismissal or for a new trial . . . .’’ Following a hearing,

the court dismissed the motion for lack of jurisdiction.

The defendant now challenges the propriety of that

determination.

‘‘Questions regarding subject matter jurisdiction are

purely legal in nature and subject to plenary review.

. . . The Superior Court is a constitutional court of

general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are

delineated by the common law. . . . It is well established that under the common law a trial court has

the discretionary power to modify or vacate a criminal

judgment before the sentence has been executed. . . .

This is so because the court loses jurisdiction over the

case when the defendant is committed to the custody

of the commissioner of correction and begins serving

the sentence. . . . [T]he jurisdiction of the sentencing

court terminates once a defendant’s sentence has

begun, and, therefore, that court may no longer take

any action affecting a defendant’s sentence unless it

expressly has been authorized to act.’’ (Citations omitted; internal quotation marks omitted.) State v. Ramos,

306 Conn. 125, 133–34, 49 A.3d 197 (2012); see also

Cobham v. Commissioner of Correction, 258 Conn. 30,

37, 779 A.2d 80 (2001).9

The defendant has not identified any express authorization under which the court could act on his March 7,

2014 motion. To the extent that the defendant’s motion
sought an acquittal on the risk of injury charge, the

court plainly lacked jurisdiction over that request. State

v. Luzietti, 230 Conn. 427, 432, 646 A.2d 85 (1994) (trial

court lacks jurisdiction to grant motion for judgment

of acquittal ‘‘when the defendant is committed to the

custody of the commissioner of correction and begins

serving the sentence’’). In addition, even if we were to

construe the defendant’s filing as a motion for a new

trial pursuant to Practice Book §§ 42-53 and 42-54, he

could not prevail. Those provisions authorize ‘‘the trial

court in a criminal case to entertain a motion for a new

trial . . . only prior to the termination of its jurisdiction upon sentencing.’’ (Emphasis added.) State v.

Bruno, 132 Conn. App. 172, 178, 30 A.3d 34 (2011),

cert. denied, 303 Conn. 919, 34 A.3d 393 (2012). The

defendant’s motion in the present case was filed more

than two weeks after he was sentenced. Lastly, we note

that the defendant’s motion states that it is brought

pursuant to Practice Book §§ 61-6 and 63-1. Those rules

of appellate procedure do not concern in any manner

the jurisdiction of the trial court to act on a postsentencing motion, nor does the defendant so argue in this

appeal. We therefore conclude that the court properly

determined that it lacked jurisdiction over the defendant’s March 7, 2014 motion to open.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also challenges the propriety of various discretionary

determinations rendered by the court. Specifically, he claims that the court

abused its discretion in (1) striking the testimony of the victim following

her repeated refusal to answer questions on cross-examination, (2) denying

the defendant’s motion to reopen the evidence after the parties had rested

and had made closing arguments to the court, (3) denying the defendant’s

motions to disqualify the trial judge, and (4) sentencing the defendant. We

have carefully considered those claims and conclude that they do not merit

substantial discussion. Our review of the record reveals no abuse of the

court’s ample discretion.

2

In accordance with General Statutes § 54-86e and our policy of protecting

the privacy interests of victims of the crime of risk of injury to a child, we

decline to identify the victim or others through whom the victim’s identity

may be ascertained.

3 At trial, the defendant testified that the victim contacted him because

she was afraid of her brother and that he took her to the hotel in Norwalk

to protect her. Although the defendant on appeal claims that the court was

obligated to credit that testimony, he is mistaken. The trial court, as sole

arbiter of credibility, was entitled to accept or reject the defendant’s testimony in whole or in part. See State v. Morelli, 293 Conn. 147, 160, 976 A.2d

678 (2009). The court likewise was free to draw reasonable inferences from

the evidence before it. State v. Crespo, 317 Conn. 1, 17, 115 A.3d 447 (2015).

4

‘‘A hickey is a temporary red mark on the skin (as one produced by

biting and sucking).’’ (Internal quotation marks omitted.) State v. CazaresMendez, 350 Or. 491, 498 n.4, 256 P.3d 104 (2011).

5

‘‘ ‘Child pornography’ means any visual depiction . . . involv[ing] the

use of a person under sixteen years of age engaging in sexually explicit

conduct . . . .’’ General Statutes § 53a-193 (13). At trial, the defendant had

stipulated that the photographs recovered from his cell phone were of the

victim and that she was underthe age of sixteen at all times. General Statutes

§ 53a-193 (14) (E) defines ‘‘sexually explicit conduct’’ in relevant part as

the ‘‘lascivious exhibition of the genitals or pubic area of any person.’’

6 Although the court acknowledged at sentencing that there was ‘‘no objective evidence’’ that the defendant engaged in sexualrelations with the victim,

the court nevertheless stated that ‘‘it does strain credibility.’’

7 The defendant’s claim that ‘‘in no case reported, trial or appellate, has
[§ 53-21 (a) (1)] been applied where there has been no sexual offense or

physical danger’’ is untenable. See, e.g., State v. Gewily, 280 Conn. 660, 672,

911 A.2d 293 (2006) (evidence that defendant relocated child to foreign

country and deprived child contact with custodial parent sufficient to prove

violation of § 53-21 [a] [1]); State v. Payne, supra, 240 Conn. 776 (holding

that § 53-21 [a] [1] ‘‘prohibits conduct that places a child in a situation that

poses a risk of injury to the child’s mental health’’); State v. Fagan, 92 Conn.

App. 44, 54, 883 A.2d 8 (evidence that defendant possessed cocaine in

presence of twelve year old child sufficient ‘‘to prove that he caused or

permitted the twelve year old child to be placed in a situation in which his

morals were likely to be impaired under § 53-21 [a] [1]’’), cert. denied, 276

Conn. 924, 888 A.2d 91 (2005); State v. Padua, 73 Conn. App. 386, 393, 808

A.2d 361 (2002) (‘‘exposing a child, old enough to appreciate what was

transpiring, to selling [narcotics] might be considered as endangering the

morals of that child’’), rev’d in part on other grounds, 273 Conn. 138, 869

A.2d 192 (2005).

8

In light of our conclusion that the evidence supports a finding that the

defendant violated § 53-21 (a) (1) by placing the victim in a situation in

which her health was likely to be injured, we do not consider in much detail

the question of whether he also placed her in a situation where her morals

were likely to be impaired. It suffices to say that the evidence discussed in

this opinion also substantiates such a determination.

9 Although the defendant in his reply brief to this court submits that this

precedent ‘‘should not be followed but should be overturned,’’ we are not

the proper audience for such claims. As an intermediate body, it is axiomatic

that this court is ‘‘bound by Supreme Court precedent and [is] unable to

modify it . . . . [W]e are not at liberty to overrule or discard the decisions

of our Supreme Court but are bound by them. . . . [I]t is not within our

province to reevaluate or replace those decisions.’’ (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684–85,

946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). Proper regard

for this court’s role as an intermediate appellate tribunal precludes our

reconsideration ofthe aforementioned precedent ofthis state’s highest court.