State v. Owens (dissenting)
Annotate this Case
Download PDF
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. OWENS DISSENT FLYNN, C. J., dissenting in part. I agree with parts I, II and III of the majority opinion but respectfully dissent as to part IV. I would reverse the judgment of conviction on the charge of risk of injury to a child. General Statutes § 53-21, the risk of injury to a child statute, is rendered constitutional, despite its broad language, only because of judicial glosses limiting its scope and defining its meaning, which render enforceable what otherwise would be an unconstitutionally vague statute. Our case law has interpreted § 53-21 (1) [now § 53-21 (a) (1)] as comprising two distinct parts and criminalizing two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. . . . Thus, the first part of § 53-21 (1) [now § 53-21 (a) (1)] prohibits the creation of situations detrimental to a child s welfare, while the second part proscribes injurious acts directly perpetrated on the child. (Citation omitted; emphasis added.) State v. Padua, 273 Conn. 138, 147 48, 869 A.2d 192 (2005). In the present case, the defendant, Clifton Owens, took two or three steps toward the child involved, while armed with a knife, but he did not come into physical contact with her. In State v. Schriver, 207 Conn. 456, 466, 542 A.2d 686 (1988), our Supreme Court recognized an authoritative judicial gloss that limits the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse. See, e.g., State v. McClary, 207 Conn. 233, 234 39, 541 A.2d 96 (1988) (six month old child suffered brain injury from violent shaking); State v. Eason, 192 Conn. 37, 38, 470 A.2d 688 (1984) (two year old child severely beaten with belt), overruled in part on other grounds by Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987); State v. Martin, 189 Conn. 1, 6, 454 A.2d 256 (child violently pushed), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Palozie, 165 Conn. 288, 290 91, 334 A.2d 468 (1973) (child beaten and thrown around). Pursuant to State v. March, 39 Conn. App. 267, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995), to meet its burden of proof under the act portion of § 53-21 (a) (1), the state was required to prove: (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 added.) Id., 275. In State v. Winot, 95 Conn. App. 332, 897 A.2d 115, cert. granted, 279 Conn. 905, 901 A.2d 1229 (2006), the defendant was charged with a violation of the act section of § 53-21 (a) (1). In the third count of the substitute information in Winot, the state had charged the defendant with violating § 53-21. It alleged that on July 23, 2002 near the intersection of Bissell Street and Spruce Street in Manchester, Connecticut at approximately 5:00 p.m., the defendant did an act likely to impair the health of a twelve (12) year old girl, including but not limited to: driving his car down Spruce Street and stopping it alongside the girl, exiting the vehicle, approaching the girl, grabbing her arm, holding onto her, telling her to get into his vehicle, trying to drag her into his car, where he had a noose made of rope and duct tape. (Emphasis in original.) Id., 360. As we explained in Winot, however, [t]he state conceded at oral argument that even when construed in the light most favorable to the state, the evidence that the defendant forcibly took and pulled on the victim s arm alone was insufficient to sustain a conviction for risk of physical injury under State v. Schriver, [supra, 207 Conn. 456]. State v. Winot, supra, 361. In Schriver, the Supreme Court recognized a judicial gloss related to the act portion of § 53-21, such that it placed a limit on the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant physical abuse. State v. Schriver, supra, 207 Conn. 466. In the present case, there was no physical harm resulting from some deliberate blatant physical abuse. In short, the defendant was charged by the state with engaging in conduct that did not fit the charged crime. The state could have charged the defendant under the situation prong of § 53-21 (a) (1), which prohibits placing a child in a situation where his or her health may be endangered. See State v. Padua, supra, 273 Conn. 148 ( [u]nder the situation portion of § 53-21 (1) [now § 53-21 (a) (1)], the state need not prove actual injury to the child ). Under this situation portion, the act of displaying the knife and taking two or three steps toward the child reasonably could have resulted in a guilty finding by the jury because it could have created a situation likely to have impaired the health of the child. See id., 158 59 (act of cutting and packaging marijuana in presence of children placed them in situation that might be harmful to their health). The act of creating such a situation, while sufficing to support a conviction under the situation portion of § 53-21 (a) (1), does not support a conviction under the act portion of § 53-21 (a) (1), for which the defendant in this case was charged and convicted. The result of the majority holding is to meld impermissibly both the situational and act sections of the statute, placing the statute in constitutional jeopardy. In my opinion, this is exactly what our Supreme Court sought to avoid in Schriver when it limited the act section of § 53-21 to instances of physical harm consisting of deliberate blatant physical abuse. In this case, I would reverse the conviction of a violation of the act portion of § 53-21 and would affirm the judgment of the trial court in all other respects. Respectfully, therefore, I dissent in part.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
