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State v. Palencia

Appellate Court of Connecticut

January 26, 2016

STATE OF CONNECTICUT
v.
JORGE CARRILLO PALENCIA

         Argued November 17, 2015.

Page 1098

          Two substitute informations charging the defendant, in the first case, with the crime of risk of injury to a child, and, in the second case, with the crimes of risk of injury to a child and possession of child pornography, brought to the Superior Court in the judicial district of Stamford-Norwalk where the cases were consolidated and tried to the court, Holden, J.; thereafter, the court, Holden, J., granted the defendant's motion for a judgment of acquittal as to the charge of possession of child pornography; subsequently, the court, Holden, J., rendered judgment of guilty as to the charge of risk of injury to a child in the first case; thereafter, the court, Wenzel, J., denied the defendant's motion to disqualify the judicial authority, and the defendant appealed to this court; subsequently, the court, Wenzel, J., denied the defendant's motion to disqualify the judicial authority; thereafter, the court, Holden, J., dismissed the defendant's motion to open and set aside the judgment, and the defendant filed an amended appeal.

          SYLLABUS

         Convicted of the crime of risk of injury to a child, the defendant appealed to this court. The defendant's conviction stemmed from an incident in which he initially took the fourteen year old victim to a hotel room overnight. The next morning, the victim's family reported her missing to the police, who attempted to contact the defendant by sending text messages and leaving voice messages on his phone. The defendant did not respond to the phone messages, took the victim to a mall, purchased underwear for her, and then stayed with her in a hotel for another night. The following day, the victim returned home to her family, and the defendant was charged with risk of injury to a child. After a trial to the court, the defendant was convicted, committed to the custody of the Commissioner of Correction, and subsequently began serving his sentence. The defendant then filed a postsentencing motion to open the judgment, which the trial court dismissed for lack of jurisdiction. On appeal, the defendant claimed that the evidence adduced at trial was insufficient to sustain his conviction of risk of injury to a child pursuant to statute (§ 53-21 [a]), and that the trial court improperly dismissed for lack of jurisdiction his postsentencing motion to open the judgment of conviction. Held :

         1. The cumulative effect of the evidence was sufficient to justify the court's determination that the defendant was guilty of risk of injury to a child because the defendant caused the victim to be placed in a situation that was likely to impair her health, which under § 53-21 includes her mental health: the trial court had before it evidence of the child's fragile mental state, as the defendant testified that the victim felt desperate, lonely, sad, and wanted to take some pills and die, and the defendant's conduct that separated her from her parents by absconding with her to hotels for two days plainly risked injury to her mental health; furthermore, the state was not required to prove that sexual conduct transpired or that the victim sustained an injury in order to obtain a conviction under the situation prong of § 53-21 (a) (1), as the trial court only needed to decide whether the defendant placed the victim in a situation that was likely to be psychologically injurious to her.

         2. Contrary to the defendant's claim, the trial court properly determined that it lacked jurisdiction over his motion to open the judgment of conviction when he was committed to the custody of the commissioner and began serving his sentence; moreover, the defendant did not identify any express authorization under which the trial court could act on his motion to open.

         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).

         Gruendel, Alvord and West, Js. GRUENDEL, J. In this opinion the other justices concurred.

          OPINION

Page 1099

         [162 Conn.App. 571] 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] [162 Conn.App. 572] 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 sister-in-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.

          [162 Conn.App. 573] 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. ...


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