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STATE OF CONNECTICUT v. HECTOR M.1

(AC 34642)

DiPentima, C. J., and Gruendel and Lavery, Js.

Argued November 20, 2013—officially released February 25, 2014

(Appeal from Superior Court, judicial district of

Waterbury, Cremins, J.)

Mary Beattie Schairer, assigned counsel, for the

appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Catherine Brannelly Austin, senior assistant

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

GRUENDEL, J. The defendant, Hector M., appeals

from the judgment of conviction, rendered after a trial

to the court, of two counts of sexual assault in the

second degree in violation of General Statutes § 53a-71

(a) (1), two counts of sexual assault in the third degree

in violation of General Statutes § 53a-72a (a) (2), two

counts of risk of injury to a child in violation of General

Statutes § 53-21 (a) (2), and one count of risk of injury

to a child in violation of § 53-21 (a) (1). On appeal, the

defendant claims that (1) the evidence adduced at trial

was insufficient to support his conviction of sexual

assault in the second degree, sexual assault in the third

degree, and risk of injury to a child, and (2) the conviction of risk of injury to a child under § 53-21 (a) (1)

should be dismissed because the statute is void for

vagueness.2 We affirm the judgment of the trial court.

The following evidence supports the trial court’s finding of guilt in the present case. The defendant and his

biological daughter, Y, began living together in September, 2008, when she was thirteen years old.3 The defendant was in the military and spoke with Y about ‘‘one

of his best friends,’’ Estephan Elson, who he claimed

had fought at war with him and who also had a daughter,

Elizabeth. The defendant told Y that Elizabeth ‘‘was

sixteen years old . . . and that she had a sexual relationship with her father.’’ The defendant, under the

guise of both Estephan Elson and Elizabeth Elson,

began communicating with Y through e-mail on a

daily basis.

In December, 2009, Y was first approached about her

‘‘destiny.’’ The defendant and Y went to visit the grave

of Y’s grandmother, where the defendant told her, ‘‘your

grandmother loved me a lot, and I remember one day

she had [sat] me and your mother down, and she was

telling me that this relationship wasn’t going to last.

. . . [S]he told me that your mother’s going to bring

the woman of his life into his life, take her away, and

drop her off at his doorstep. And [the defendant] asked

[Y] if [she] knew what that meant . . . . And he had

told [her] that he was going to ask Elizabeth Elson and

Estephan Elson if they understood what it meant. And

that very day,’’ Y testified, ‘‘Elizabeth Elson, Estephan

Elson, had wrote to me in the e-mail, stating what the

destiny was about, and the destiny was, it was me, that

my mother brought me into his life, took me away, and

dropped me off at his doorstep.’’ According to Estephan

Elson and Elizabeth Elson, Y’s destiny was ‘‘to save

[the defendant’s] life, and his eight soldiers. And a part

of that destiny was to be the woman of his life . . .

taking care of him, and also having sexual intercourse

with [him].’’

Y did not want to accept her ‘‘destiny,’’ but she testified that ‘‘in the e-mails [Estephan Elson and Elizabeth
Elson] kept antagonizing me, saying that my dad was

going to die, my sister was going to die and [Estephan

Elson] was going to die . . . . [H]e was saying that I

don’t want that kind of blood on my hands . . . that

I’m going [to] regret it for the rest of my life . . . .’’

Estephan Elson specifically told Y that he went to a

priest about Y’s destiny, to which the priest allegedly

explained to Estephan Elson, who then wrote it in an

e-mail to Y, about ‘‘the significance of the destiny and

. . . how strong the destiny is, and that . . . [it] is

going to basically end horribly.’’ Y testified that because

of ‘‘the way [the e-mail was] written and . . . having

to do with God,’’ it made her believe that her destiny

was real and that she must fulfill it. It was after all of

the e-mails that Y finally agreed to her destiny and to

be her ‘‘father’s woman’’ because she ‘‘did not want

[her] little sister to grow up without a father. [She] did

not want the eight soldiers . . . [or her] father to die

because [she] trusted [the defendant] and [she]

believe[d] that what [the defendant, Estephan Elson,

and Elizabeth Elson were] saying was true.’’

Y was advised, by Elizabeth Elson and Estephan

Elson, how to complete her destiny—by ‘‘rubbing’’ private parts with the defendant. As Y testified, she was

told that ‘‘[w]e were to strip into our underwear, I had

to wear my bra and my panties and he had to stay in

his boxers. And he had to lay his penis on his stomach,

and I had to lay on the side of him, and he had to . . .

rub . . . my clitoris until I was to get wet and then I

had to go on top of him and rub until we both had

an orgasm.’’

On December 29, 2009, when Y was under the age

of sixteen, the defendant brought Y and his other daughter to Coco Keys in Waterbury, a hotel and waterpark.

On the way, the defendant stopped to purchase Smirnoff green apple and strawberry liquor as well as a box

of condoms. After playing at the waterpark and putting

the younger daughter to bed, the defendant opened the

alcoholic beverages. He provided the Smirnoff to Y, and

she testified that she had ‘‘a couple of sips’’ of hers.

She did not continue to drink, she testified, because ‘‘it

just felt weird.’’ Y then put on a new outfit she received

for her birthday, and the defendant took photographs

of her in the hotel bathroom. He then said, ‘‘well, it’s

getting late, and let’s do this already.’’

Y then ‘‘stripped down to [her] bra and panties, and

[she] laid right on the side of [the defendant],’’ and he

asked if she was ready. When she said no, the defendant

stated, ‘‘well, we have to do this,’’ and then he put his

hands between her labia majora,4

rubbing her clitoris.

The defendant ‘‘grabbed his penis, laid it right on his

stomach, and [Y] got on top and [they] just started

rubbing.’’ The defendant’s penis was, according to Y,

touching her ‘‘clitoris and . . . between . . . [her

labia majora].’’ Later, the defendant ‘‘took off [Y’s] pant-
ies and just stuck it in . . . at least two times’’ until Y

pushed him off of her. The defendant ejaculated after

touching his own penis while rubbing Y’s clitoris. The

next morning, the defendant told Y, ‘‘you saved us, baby,

you saved us.’’5

The defendant thereafter was arrested and charged

with the aforementioned crimes. A trial followed, at

the conclusion of which the court found the defendant

guilty. The court rendered judgment accordingly and

sentenced him to a total effective term of twenty-six

years imprisonment, execution suspended after fourteen years, with twenty-five years of probation.6 This

appeal followed.

I

The defendant claims that there was insufficient evidence to support his conviction of sexual assault in the

second degree, sexual assault in the third degree, and

risk of injury to a child. These claims are unavailing.

‘‘In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force

of the evidence established guilt beyond a reasonable

doubt. . . . In evaluating evidence, the trier of fact is

not required to accept as dispositive those inferences

that are consistent with the defendant’s innocence. . . .

The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to

be reasonable and logical. . . . This does not require

that each subordinate conclusion established by or

inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . .

because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

‘‘[A]s we have often noted, proof beyond a reasonable

doubt does not mean proof beyond all possible doubt

. . . nor does proof beyond a reasonable doubt require

acceptance of every hypothesis of innocence posed by

the defendant that, had it been found credible by the

trier, would have resulted in an acquittal. . . . On

appeal, we do not ask whether there is a reasonable

view of the evidence that would support a reasonable

hypothesis ofinnocence. We ask, instead, whetherthere

is a reasonable view of the evidence that supports the

[fact finder’s] verdict of guilty. . . . Furthermore, [i]n

[our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or

in part, of evidence that is circumstantial rather than

direct. . . . It is not one fact, but the cumulative impact

of a multitude of facts [that] establishes guilt in a case
involving substantial circumstantial evidence.’’ (Citation omitted; internal quotation marks omitted.) State

v. Hedge, 297 Conn. 621, 656–58, 1 A.3d 1051 (2010).

A

The defendant first claims that there was insufficient

evidence of sexual intercourse as a matter of law to

support his conviction of sexual assault in the second

degree and sexual assault in the third degree7 because

the sexual contact took place through clothing. We

disagree.

The defendant was convicted under § 53a-71 and

§ 53a-72a, both of which require sexual intercourse

between the defendant and another person. Section

53a-71 (a) provides in relevant part: ‘‘A person is guilty

of sexual assault in the second degree when such person

engages in sexual intercourse with another person and:

(1) Such other person is thirteen years of age or older

but under sixteen years of age and the actor is more

than three years older than such other person . . . .’’

Section 53a-72a (a) provides in relevant part: ‘‘A person

is guilty of sexual assault in the third degree when such

person . . . (2) engages in sexual intercourse with

another person whom the actor knows to be related to

him or her within any of the degrees of kindred specified

in section 46b-21.’’

General Statutes § 53a-65 (2) defines sexual intercourse as ‘‘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.’’

Our Supreme Court has commented that there is nothing to suggest that the term genital opening was

intended ‘‘to require that penetration occur beyond the

labia majora to at least the labia minora . . . .’’8

(Internal quotation marks omitted.) State v. Albert, 252 Conn.

795, 813, 750 A.2d 1037 (2000).

‘‘[B]ecause the statutory provisions that prohibit forcible and nonconsensual sexual intercourse were

designed to punish the fact, not the degree, of penetration . . . the least penetration of the body is sufficient

to satisfy the penetration element of this state’s sexual

assault statutes. . . . Accordingly, we . . . have concluded that the penetration element of those statutes is

satisfied by the penetration of the labia majora because

penetration of the labia majora constitutes penetration

of the body.’’ (Citations omitted; internal quotation

marks omitted.) State v. Merriam, 264 Conn. 617, 630,

835 A.2d 895 (2003). To clarify, ‘‘the opening between

the . . . labia majora . . . is the genital opening . . .

that the labia majora form the boundaries of the genital
opening . . . [and] that . . . penetration, however

slight, of the labia majora is sufficient penetration to

constitute vaginal intercourse under § 53a-65 (2). . . .

[T]he state need not prove penetration of the vagina,

but, rather, penetration of the labia majora. . . . Subsequent decisions repeatedly have reaffirmed and applied

this conclusion. See, e.g., [id., 630]; State v. Scott, [256

Conn. 517, 534, 779 A.2d 702 (2001)]; State v. Juan V.,

109 Conn. App. 431, 449, 951 A.2d 651, cert. denied, 289

Conn. 931, 958 A.2d 161 (2008).’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

State v. David N.J., 301 Conn. 122, 159, 19 A.3d 646

(2011).

The defendant’s claim of evidentiary insufficiency is

predicated on his assertion that the state failed to prove

penetration and, consequently, failed to prove that he

engaged in sexual intercourse with Y. The defendant

argues that sexual contact through clothing is a barrier

that prevents ‘‘intrusions into the interior,’’ which he

claims is required by the plain meaning of the word penetration.

In construing the evidence in a light most favorable

to sustaining the court’s finding of guilty, we conclude

that the courtreasonably could have found the evidence

to be sufficient to satisfy the penetration element of

§§ 53a-71 (a)(1) and 53a-72a (a)(2). Although our appellate courts have not specifically addressed penetration

through underwear, or any other type of clothing, our

precedent nonetheless provides adequate guidance on

this sufficiency claim. Our Supreme Court has explicitly

stated that penetration of the labia majora constitutes

penetration of the body. See State v. Merriam, supra,

264 Conn. 630. Y testified that she and the defendant

were wearing underwear when the alleged penetration

took place, but further testified that the defendant’s

penis was rubbing between her labia majora and touching her clitoris. Our jurisprudence does not qualify the

term ‘‘penetration, however slight,’’ to require that the

penetration occur without any intervening material. As

a result, the court could have reasonably concluded

that the cumulative force of the evidence established

guilt beyond a reasonable doubt that the defendant

engaged in sexual intercourse with Y.9 Consequently,

the defendant’s claim of evidentiary insufficiency fails.

B

The defendant also claims that the evidence presented is insufficient to support a conviction of risk of

injury to a child for providing alcohol to a minor in

violation of § 53-21 (a) (1). We do not agree.

The defendant was charged with violating § 53-21 (a),

which provides in relevant part: ‘‘Any 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, or does any act

likely to impair the health or morals of any such child

. . . shall be guilty of a class C felony . . . .’’

‘‘[Section] 53-21 (a) (1) is broadly drafted and was

intended to apply to any conduct, illegal or not, that

foreseeably could result in injury to the health of a

child.’’ State v. Scruggs, 279 Conn. 698, 724–25, 905 A.2d

24 (2006). Our Supreme Court ‘‘has interpreted § 53-21

(a) (1) as being comprised of two distinct prongs, the

situation prong and act prong . . . .’’ (Internal quotation marks omitted.) State v. Owens, 100 Conn. App.

619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927,

926 A.2d 668 (2007). The defendant was charged only

under the act prong.

‘‘Under the act prong of our risk of injury statute

[t]he four elements the [fact finder] needed to find to

return a verdict of guilty are: (1) the victim was less

than sixteen years old; (2) the defendant committed an

act upon the victim;(3) the act was likely to be injurious

to the victim’s health . . . and (4) the defendant had

the general intent to commit the act upon the victim.’’

(Emphasis omitted; internal quotation marks omitted.)

State v. Patterson, 131 Conn. App. 65, 78–79, 27 A.3d

374 (2011), aff’d, 308 Conn. 835, 68 A.3d 83 (2013).

‘‘[T]he charge of risk of injury to a child does not

require proof of an actual injury, but only that the

actions of the defendant exposed the victim to a situation that potentially could impair his health. State v.

Peters, 40 Conn. App. 805, 828–29, 673 A.2d 1158, cert.

denied, 237 Conn. 925, 677 A.2d 949 (1996). ‘‘The relevant inquiry is whether the defendant committed any

act that was likely to endanger the life or limb, or impair

the health, of the children, not whether the children

actually were injured. Lack of an actual injury to either

the physical health or morals of the victim is irrelevant

. . . actual injury is not an element of the offense. . . .

State v. Sullivan, 11 Conn. App. 80, 98, 525 A.2d 1353

(1987). [T]he creation of a prohibited situation is sufficient. State v. Perruccio, 192 Conn. 154, 160, 471 A.2d

632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L.

Ed. 2d 6 (1984).’’ (Internal quotation marks omitted.)

State v. Davila, 75 Conn. App. 432, 437, 816 A.2d 673

(2003), cert. denied, 264 Conn. 909, 826 A.2d 180 (2003),

cert. denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d

166 (2004); see also State v. Samms, 139 Conn. App.

553, 559, 56 A.3d 755 (2012), cert. denied, 308 Conn.

902, 60 A.3d 287 (2013); State v. Patterson, supra, 131

Conn. App. 79.

Additionally, it is important to note that ‘‘[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). ‘‘Furthermore, although § 53-21 (a) (1)

is divided into an act prong and situation prong, [i]n

both instances, the focus of the statute is on the behavior of the defendant . . . .’’ (Internal quotation marks

omitted.) State v. Owens, supra, 100 Conn. App. 638.

The defendant argues that the state failed to prove

that offering Y ‘‘a few sips of alcohol negatively

impacted her morals’’ because she did not drink enough

to become intoxicated.10 Pursuant to the defendant’s

interpretation, one’s culpability would depend on

whether a child under the age of sixteen was actually

intoxicated or impaired in order for a defendant to be

found in violation of the statute. Such a view is at odds

with the stated purpose of § 53-21 (a) (1), which is to

protect the health and morals of children. It also fails

to provide a proper focus on the behavior of the defendant, as our precedent requires. See State v. Owens,

supra, 100 Conn. App. 639.

In the present case, the defendant provided alcohol to

a minor prior to sexually assaulting her. ‘‘In evaluating

whether a situation is likely to impair a victim’s morals,

the relevant inquiry . . . is to evaluate the situation in

light of precepts that are commonly accepted among

us as right and decent.’’ (Internal quotation marks omitted.) State v. Eastwood, 83 Conn. App. 452, 477, 850

A.2d 234 (2004), cert. denied, 286 Conn. 914, 945 A.2d

978 (2008). The court heard sufficient evidence that, if

credited, would support its finding that the defendant’s

actions created a risk of injury to a child under the

age of sixteen. Y testified that the defendant bought

Smirnoff green apple and strawberry liquor, and provided the alcoholic beverages to her. The fact that Y

had only a few sips of the alcohol is irrelevant because

she decided, on her own, not to continue drinking.

Allowing a defendant to circumvent a charge of risk of

injury to a child when the minor chooses not to drink

would render § 53-21 an absurdity.

In addition, the present case is akin to State v. March,

39 Conn. App. 267, 664 A.2d 1157, cert. denied, 235

Conn. 930, 667 A.2d 801 (1995), where a defendant was

convicted of risk of injury to a child for giving a four

year old a cup containing rum and soda. Despite the

difference in age between Y and the victim in March,

the circumstances are very similar. In March, the court

upheld the defendant’s conviction of risk of injury for

providing alcohol to a child under the age of sixteen.

Id., 276. In March, as in the present case, the child was

not impaired after drinking the alcohol. There is no

requirement, however, that the state prove an actual

injury to the child. Rather, courts are required to focus

on the acts committed by the defendant in order to

determine whether those acts were likely to endanger

the life of the child. See State v. Davila, supra, 75 Conn.

App. 437. In focusing on such acts, the court was presented with evidence that the defendant e-mailed Y,
under the guise of Estephan Elson and Elizabeth Elson,

in order to encourage Y to have sexual intercourse with

him. Thus, in construing the evidence in the light most

favorable to sustaining the finding of guilty, we conclude that the court reasonably could have credited the

testimony and the evidence that the defendant bought

and provided alcohol to his minor daughter as a prelude

to sexually assaulting her.

From that evidence, the fact finder reasonably could

have concluded that the defendant’s act of providing

alcohol to a minor was an act likely to impair her health

or morals. The defendant’s claim that the evidence was

insufficient for a conviction of risk of injury thus fails.

II

The defendant next claims that the conviction of risk

of injury should be dismissed because the statute, as

applied, is void for vagueness. This claim is unavailing.

‘‘We begin with the applicable standard of review

and general governing principles. The determination

of whether a statutory provision is unconstitutionally

vague is a question of law over which we exercise de

novo review. . . . In undertaking such review, we are

mindful that [a] statute is not void for vagueness unless

it clearly and unequivocally is unconstitutional, making

every presumption in favor of its validity. . . . To demonstrate that [a statute] is unconstitutionally vague as

applied to him, the [defendant] therefore must . . .

demonstrate beyond a reasonable doubt that [he] had

inadequate notice of what was prohibited or that [he

was] the victim of arbitrary and discriminatory enforcement. . . .

‘‘[T]he void for vagueness doctrine embodies two

central precepts . . . . First, because we assume that

man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly. Vague laws

may trap the innocent by not providing fair warning.

. . . [A] law forbidding or requiring conduct in terms

so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application

violates due process of law. . . .

‘‘Second, if arbitrary and discriminatory enforcement

is to be prevented, laws must provide explicit standards

for those who apply them. A vague law impermissibly

delegates basic policy matters to policemen, judges,

and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature

[must] establish minimal guidelines to govern law

enforcement. . . .

‘‘[M]any statutes proscribing criminal offenses necessarily cannot be drafted with the utmost precision and

still effectively reach the targeted behaviors. Consistent
with that acknowledgment, the United States Supreme

Court has explained: The root of the vagueness doctrine

is a rough idea of fairness. It is not a principle designed

to convert into a constitutional dilemma the practical

difficulties in drawing criminal statutes both general

enough to take into account a variety of human conduct

and sufficiently specific to provide fair warning that

certain kinds of conduct are prohibited. Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d

584 (1972) . . . .’’ (Citations omitted; footnote omitted;

internal quotation marks omitted.) State v. Winot, 294

Conn. 753, 758–61, 988 A.2d 188 (2010).

The defendant did not preserve this issue at trial and

now seeks review under State v. Golding, 213 Conn.

233, 567 A.2d 823 (1989).11 We conclude that the record

is adequate to review this claim and that it is of constitutional magnitude. The claim fails under the third prong

of Golding, however, because the defendant failed to

establish beyond a reasonable doubt that risk of injury

to a child is unconstitutionally vague as applied to his

conduct. He therefore has not established that a clear

constitutional violation exists.

The defendant was charged with violating § 53-21

(a) (1). The defendant argues, however, that because

General Statutes § 30-86 (b) (3) (C)12 allows parents to

provide alcohol to their children while the parent is

present, he lacked fair warning that his conduct was

criminal under the risk of injury statute, § 53-21. He

concludes that the risk of injury statute is void for

vagueness as applied to him. The state contends that

a person of ordinary intelligence would know that,

under the factual circumstances presented by this case,

namely, providing one’s minor daughter with alcohol

as an antecedent to sexually assaulting her, is illegal.

‘‘Our courts have determined that minors are not

competent to assume the responsibility of consuming

alcohol.’’ State v. Springmann, 69 Conn. App. 400, 409,

794 A.2d 1071, cert. denied, 260 Conn. 934, 802 A.2d 89

(2002). Specifically, § 30-86 was ‘‘manifestly directed at

the eradication, or minimally at the discouragement,

of alcoholic indulgence by minors who, lacking selfdiscipline, fortitude and discretion, and uninformed by

their own observation and the experience gained by

maturing years, were most likely to fall into habits of

dissolute excess and vice, with grave injury to themselves . . . .’’ State v. Hughes, 3 Conn. Cir. Ct. 181, 189,

209 A.2d 872, cert. denied, 152 Conn. 745, 209 A.2d

189 (1965).

As we previously have noted, however, providing

alcohol to a minor child is appropriate in certain circumstances, such as in religious ceremonies.13 However, ‘‘an

adult is required to exercise caution when permitting

minors to consume alcohol.’’ State v. Springmann,

supra, 69 Conn. App. 409. If there is a question with

respect to the admissibility of providing alcohol to a
minor, ‘‘[t]he mischief which the statute was designed

to remedy is an important guide in ascertaining its

meaning.’’ (Internal quotation marks omitted.) State v.

Hughes, supra, 3 Conn. Cir. Ct. 197.

The application of § 53-21 to the defendant’s conduct

is constitutional because the statute is not vague as

applied to him. First, the defendant was on notice that

providing alcohol to a minor could subject him to prosecution under § 53-21. See State v. Springmann, supra,

69 Conn. App. 400; State v. March, supra, 39 Conn. App.

267, State v. Mancinone, supra, 15 Conn. App. 251.

Second, § 30-86 does not apply underthe factual circumstances of this case. An as applied claim focuses on

‘‘the constitutionality of the challenged statute is to be

determined by the statute’s applicability to the particular facts at issue.’’ (Emphasis added.) State v. Perruccio, supra, 192 Conn. 158. A reasonable person would be

on notice that providing alcohol to Y under the factual

circumstances of the case, an act that preceded a sexual

encounter with a child, was likely to impair her health

or morals. The present situation was not one where the

defendant was permitting his minor daughter to drink

a small amount of alcohol served at the dinner table

or in observation of a religious ceremony. Rather, the

defendant provided alcohol to his daughter prior to

sexually assaulting her.14

Moreover, even if the defendant was permitted to

provide alcohol to Y under § 30-86, § 53-21 (a)(1) specifically provides that the statute ‘‘was intended to apply

to any conduct, illegal or not, that foreseeably could

result in injury to the health of a child.’’ (Emphasis

added.) State v. Scruggs, supra, 279 Conn. 724–25.

‘‘[D]eliberate indifference to, acquiescence in, or the

creation of situations inimical to the minor’s moral or

physical welfare . . . and . . . acts directly perpetrated on the person of the minor and injurious to [the

victim’s] moral or physical well-being’’ constitute

behavior that is prohibited by § 53-21. (Internal quotation marks omitted.) State v. March, supra, 39 Conn.

App. 274–75. Therefore, the defendant’s act of providing

alcohol to Y prior to sexually assaulting her could foreseeably result in injury to her health, thus rendering

§ 30-86 inoperable.

A person of ordinary intelligence would be on notice

that the aforementioned conduct is illegal. The defendant, therefore, has not demonstrated beyond a reasonable doubt that he had inadequate notice of what was

prohibited under our Penal Code. The defendant’s claim

that the risk of injury statute is void for vagueness

thereby fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

2

In his appellate brief, the defendant also alleged that the conviction of

sexual assault in the second degree and sexual assault in the third degree

should be vacated because the relevant statutes are void for vagueness. The

defendant withdrew this claim at oral argument, and we therefore do not

address it.

3 Y lived with her mother until such time in 2008.

4 Y’s exact testimony was ‘‘between [her vagina] lips,’’ which, as shall be

further discussed, is defined as the labia majora.

5 Y also testified about later sexual encounters with the defendant. The

defendant was found not guilty of those charges, and the state did not appeal

from those determinations.

6 By count, the court sentenced the defendant to: thirteen years incarceration, with twenty-five years probation on the first count, sexual assault in

the second degree; on the second and third counts, sexual assault in the

third degree and risk of injury to a child, respectively, the court sentenced

the defendant to five years concurrent with the first count; on the fourth

count, sexual assault in the second degree,the court sentenced the defendant

to thirteen years, execution suspended after seven years, and twenty-five

years probation consecutive to the first count; and on counts five, six, and

seven, sexual assault in the third degree and two counts of risk of injury

to a child, the court sentenced the defendant to five years concurrent with

the first count.

7 The defendant claims that the evidence was insufficient evidence with

respect only to counts four and five of the substitute information. Count

four charged the defendant with one count of sexual assault in the second

degree in violation of § 53a-71 (a) (1), alleging that he ‘‘did engage in sexual

intercourse, to wit: penis to clitoris with another person to wit: [Y] and such

person is thirteen years of age or older but under sixteen years of age.’’

Count five charged the defendant with one count of sexual assault in the

third degree in violation of § 53a-72a (a) (2), alleging that he ‘‘did engage

in sexual intercourse with another person, to wit: [Y] whom the [defendant]

knew to be related to him, to wit: his daughter.’’

8

‘‘[M]edical experts refer to the labia as an opening that can be penetrated.’’ State v. Albert, supra, 252 Conn. 817 n.22. ‘‘Stedman’s Medical Dictionary defines labia as the . . . two rounded folds of integument forming

the lateral boundaries of the . . . external genitals . . . . [I]t is clear that

the labia majora form the boundaries of a fissure, or opening, associated

with the female genitals.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) Id., 809 n.17.

9

Indeed, the defendant states in his brief that ‘‘[i]f one just follows the

words [Y] used on the [witness] stand, sufficient evidence can be found.

However, if one goes with common sense and anatomy . . . the evidence

is insufficient.’’ On appeal, we do not substitute our own judgment for that

of the finder of fact if there is sufficient evidence to support the fact finder’s

determination of guilt. See State v. Madore, 96 Conn. App. 271, 283, 900

A.2d 64, cert. denied, 280 Conn. 907, 907 A.2d 93 (2006). In the present case,

we conclude that, upon the facts so construed and the inferences reasonably

drawn therefrom, the court reasonably could have found sufficient evidence

of penetration.

10 In doing so, the defendant claims that the present case is similar to

State v. Patterson, supra, 131 Conn. App. 65. In that case, the defendant

was charged with risk of injury to a child for placing a small amount of hot

sauce in a cup and leaving it out where a two year old victim consumed it.

Id., 69. In Patterson, we held that ‘‘[a]lthough a reasonable finder of fact

could inferfrom his or her own observations and experience that hot sauce is

spicy, and therefore inherently unpalatable to many individuals, one cannot

assume that a small quantity is likely to result in injury absent additional

evidence.’’ Id., 80. The defendant compares that situation with the present

case and argues that the state proved only that Y was given a small quantity

of alcohol and that, in order to convict the defendant of risk of injury, the

state was required to prove the actual amount of alcohol provided to Y. We

disagree. Patterson is inapplicable to the present case because ‘‘[u]nlike

marijuana and other drugs, hot sauce is not a controlled substance.’’ Id.

Providing alcohol to minors is an equally inapposite comparison to hot

sauce, as we have previously noted that giving a teenage girl liquor involves

furnishing the underage victim with a mind-altering substance, which is

harmful to her physical health and induces her to lose self-control. See State

v. Mancinone, 15 Conn. App. 251, 277, 545 A.2d 1131, cert. denied, 209 Conn.

818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103
L. Ed. 2d 194 (1989).

The defendant then briefly argues that he is allowed to provide alcohol

to his daughter under General Statutes § 30-86. This statute is inapplicable

in the present case, as fully discussed in part II of this opinion.

11 ‘‘[A] defendant can prevail on a claim of constitutional error not preserved at trial 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. In the absence of any one of these conditions, the

defendant’s claim will fail.’’ (Emphasis omitted; footnote omitted.) State v.

Golding, supra, 213 Conn. 239–40.

12 General Statutes § 30-86 (b)(3) provides in relevant part: ‘‘The provisions

of this subsection shall not apply . . . (C) to a 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 liquor while accompanied by such

parent, guardian or spouse.’’

13 ‘‘The sacramental use of wine has been an integral part of the ceremonial

ritual of many of our religious sects from early colonial times. In enacting

the predecessor of § 30-86, it is to be presumed that the legislature was

aware of such religious rites and customs and there was no need to state

as an exception to the literal operation of the law activities such as these,

and other wholesome social customs mentioned by the defendants, in order

to exclude them from the law’s proscription. Nor, may it be said, is the law

powerless to exert its force in situations where, under guise of religion,

indulgence is sought in acts offensive to law and morality alike, in the

disingenuous beliefthatthey are constitutionally protected.’’ State v. Hughes,

supra, 3 Conn. Cir. Ct. 196–97.

14 The defendant compares the present case to State v. Perruccio, supra,

192 Conn. 154. This case is plainly distinguishable. The court in Perruccio

found that § 53-21 was unconstitutionally vague as applied to the defendant

because consensual sexual relations were permissible under General Statutes § 53a-73a (a) (1) (A), as the girl’s age of fifteen years allowed her to

consent to sexual activity at the time the events occurred. Id., 163–65. The

court thus concluded that fair notice of the statutory requirements of § 53-

21 was not afforded to the defendant because the activity was permitted

under another statute. Perruccio is not applicable in the present case

because, as previously stated, the defendant’s activities, under these factual

circumstances, were not permitted under § 30-86. See State v. Springmann,

supra, 69 Conn. App. 407–408.