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State v. Perruccio

Supreme Court of Connecticut

January 31, 1984

STATE of Connecticut

Argued Oct. 12, 1983.

Page 633

Edward T. Lynch, Jr., New Britain, for appellant (defendant in both cases).

Irving L. Aronson, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (State in both cases).


[192 Conn. 156] GRILLO, Associate Justice.

The charges in this case stemmed from separate incidents involving the defendant's sexual contact with two females under the age of sixteen. In the first case, the defendant was charged with risk of injury under General Statutes § 53-21 [1] and sexual assault in the fourth degree under General Statutes § 53a-73a(a)(1)(A) [2] resulting from actions involving a thirteen year old female on October 16, 1981. In the second case, the defendant was charged with three counts of risk of injury under § 53-21 resulting from actions involving a fifteen year old female on October 27 and November 3, 1980.

The jury might reasonably have found the following facts: At the time of the incident in the first case, the defendant, Dennis M. Perruccio, was an electronics shop teacher at Ellis Technical School in Danielson. A thirteen year old girl was enrolled in a one week introductory course in the defendant's shop program. On October 16, 1981, the defendant followed this girl into an empty locker room. When the defendant asked her for a good-bye kiss, she kissed him on the cheek. The defendant kissed her, then put his right hand [192 Conn. 157] underneath her shirt and felt her left breast, outside of her bra. He then pushed her bra up and felt her breast again. He tried to put his left hand down inside the back of her pants, but she resisted. A few days later, the girl informed her parents of the incident. School officials were notified in mid-November.

In the second case, a fifteen year old girl met the defendant at a dance at Ellis Technical School in the spring of 1980. Although the girl was not a student at Ellis at that time, she enrolled there in the fall of 1980. On October 27, 1980, she remained alone after school with the defendant to make posters. The defendant had previously requested and received permission from the girl's mother allowing her daughter to remain after school. After the defendant told the girl that they had to go out to buy poster materials, they left the school together in the defendant's car and proceeded to the defendant's home in Norwich. When they arrived at the house, the defendant invited the girl into his house. They sat on a couch together, listened to music, and talked while the girl drank a beer. While on the couch, the defendant kissed the girl and touched her breasts under her clothes. The defendant then carried her into the bedroom, undressed her, and had sexual intercourse with her. The girl testified that

Page 634

she did not resist any of the defendant's advances or actions because she was too afraid of what would happen if she tried to stop the defendant.

On November 3, 1980, the defendant again arranged to have the fifteen year old girl stay after school. They again went to the defendant's house and had intercourse. This time, however, both removed their own clothes. After both incidents, the defendant told the girl not to tell anyone because he would get into trouble. She, in fact, did not inform anyone of these incidents until November of 1981 when she gave a statement to the police.

[192 Conn. 158] After consolidation of these two cases and a trial by jury, the defendant was found guilty of all charges. [3] The defendant timely appealed in each case, and on January 3, 1983, this court granted the defendant's motion for consolidation of the appeals.

In the first case involving the thirteen year old girl, the issues presented are: (1) whether § 53-21 as applied to the defendant is void for vagueness and thus unconstitutional, and (2) whether §§ 53-21 and 53a-65 et seq. form an unconstitutional statutory pattern and violate the principle of double jeopardy.

The defendant maintains that the application of § 53-21 in this case violates his due process rights since the statute is void for vagueness. He argues that his conduct was not violative of § 53-21 for two reasons: (1) the touching of the breast is not an act prohibited by § 53-21, and (2) even if this court decides that such an act violates § 53-21, the defendant did not have fair warning at the time the incident occurred. We disagree.

This court, in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), recently set out the basic principles to be considered when a statute is attacked as void for vagueness. First, the constitutionality of the challenged statute is to be determined by the statute's applicability to the particular facts at issue. Id., 57, 428 A.2d 322. "[T]hat a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue." Id., 58, 428 A.2d 322. Second, the statute must give fair warning in order to enable a person to know what conduct he must avoid. "[A] statute which either forbids or requires the doing of an act in [192 Conn. 159] 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." Id., 60, 428 A.2d 322, citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Thus, "a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning." Id., 61, 428 A.2d 322. "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." Id., 62-63, 428 A.2d 322, citing Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

The conduct of the defendant in sliding his hand under the thirteen year old girl's bra and feeling her breast is the claimed "act likely to impair the ... morals of [a] child" under § 53-21. The defendant argues that there must be a touching of "private parts" for an act to come within the statute and that a breast does not qualify as such a "private part." An examination of § 53-21 reveals that the term "private parts" is not employed; there is nothing in the statute suggesting that such an area of the body need be ...

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