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State v. Dojnia

Court of Appeals of Connecticut

June 4, 2019


          Argued January 7, 2016

         Procedural History

         Substitute information charging the defendant with the crimes of assault of a disabled person in the second degree, assault in the third degree and reckless endangerment in the second degree, brought to the Superior Court in the judicial district of Waterbury, geographical area number four, and tried to the jury before Cremins, J.; verdict of guilty of assault of a disabled person in the second degree and reckless endangerment in the second degree; thereafter, the court vacated the verdict as to the charge of reckless endangerment in the second degree; judgment of guilty of assault of a disabled person in the second degree, from which the defendant appealed to this court. Affirmed.

          Megan L. Wade, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, for the appellant (defendant).

          Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Maureen Piatt, state's attorney, and Karen Diebolt, former assistant state's attorney, for the appellee (state).

          Sheldon, Keller and Flynn, Js.


          KELLER, J.

         The defendant, Jodi M. Dojnia, appeals from the judgment of conviction, rendered following a jury trial, of assault of a disabled person in the second degree in violation of General Statutes § 53a-60b (a) (1).[1] The defendant claims that (1) § 53a-60b (a) (1) is unconstitutionally vague as applied to her conduct, (2) the evidence did not support a finding that the victim[2]was physically disabled, and (3) prosecutorial impropriety during closing argument deprived her of a fair trial. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In October, 2015, the defendant and the victim, who are sisters, resided in separate units of a duplex style home in Naugatuck that was owned by their mother. For years prior to the events at issue, the victim suffered from chronic pain and was physically limited in performing everyday tasks, such as standing, walking, and climbing stairs.

         For several years prior to the events at issue, the defendant and the victim did not have a good relationship. The relationship between the defendant and the victim worsened in January, 2015, when the defendant's son, who resided with the defendant, was involved in an altercation with the victim at her residence. According to the victim, during this prior incident, the defendant's son broke down her back door and attacked her, which led to his arrest. Tensions escalated further because the defendant was unhappy with the fact that the victim's dog entered her portion of their shared backyard, and that the victim failed to clean up after her dog. Shortly before the incident underlying this appeal, the defendant erected a small plastic fence to separate her backyard from that of the victim in an attempt to keep the victim's dog away. The fence ran across the backyard and between the two rear doors of the residence. The victim was unhappy about the fence. The victim's mother had asked the victim to look for another place to live and, by October, 2015, the victim was actively planning to move out of her residence.

         Late in the evening on October 10, 2015, the victim walked out of the front door of her residence. From one of the windows of the defendant's residence, the defendant made a negative comment to the victim, who was talking on her cell phone, but the victim declined to engage the defendant in conversation. At approximately 1:30 a.m., on October 11, 2015, the victim left her residence to walk her dog by means of her back door, which was adjacent to the back door leading into the defendant's residence. By this point in time, the victim had consumed multiple alcoholic beverages. The victim walked her dog in the vicinity of her nearby driveway.

         While the victim was reentering her residence with her dog, she noticed that a light had been turned on inside of the defendant's residence. The victim then stepped back outside, at which time the defendant, who was lurking near the victim's back door, grabbed the victim by the upper part of her body and pulled her over the small plastic fence that was separating their backyards, causing the victim to topple to the ground. A physical struggle between the defendant and the victim ensued, during which the defendant struck the victim repeatedly with a wooden billy club. The victim, while lying on the ground, tried to prevent the defendant from continuing to strike her. The victim grabbed the defendant's hand and pulled her by her hair, causing her to fall on top of her. The victim repeatedly told the defendant to "[l]et go" of the billy club, and the defendant told the victim that she was tired of her, that she hated her, and that she wanted her "out of here."

         Ultimately, the victim restrained the defendant, and the victim asked her what their father, who had died, would say to them if he saw them fighting. The defendant promised not to strike the victim again, at which time the victim released her grasp on the defendant's hair and the defendant stepped away from the victim.

         The defendant picked up the victim's cell phone, which had fallen out of the victim's hands during the altercation, and gave it back to her. The victim tossed aside one of the defendant's garbage pails before making her way back inside. The victim was bleeding from her nose and choking on blood. The victim sustained multiple bruises and lacerations on her face, back, left arm, left shoulder, left leg, and torso. The victim's right eye swelled and she experienced a great deal of pain, particularly pain that emanated from her jaw. The victim's clothing was stained with blood and dirt, and she was unable immediately to locate either her eyeglasses or a pendant that she had been wearing prior to the altercation.

         After the victim went back inside of her residence, she called the police. Soon thereafter, Naugatuck police Officer Robert Byrne arrived on the scene. He encountered the defendant and the victim arguing in front of the residence. After he separated the sisters, he met privately with the defendant. The defendant admitted that she had struck the victim with the wooden billy club, which was on her kitchen table, but stated that she had acted in self-defense. The defendant also stated that she had begun arguing with the victim after she caught the victim "snooping around in the backyard . . . ." She stated that the small plastic fence that she had erected to prevent the victim's dog from entering her portion of the backyard was a cause of consternation between her and the victim. The defendant sustained injuries during the incident and claimed to have been "strangled" by the victim, but her injuries were not serious enough to warrant medical treatment. Byrne arrested the defendant on the assault charge, took her into custody, and transported her to police headquarters to complete the booking process.

         Naugatuck police Officer Shane Andrew Pucci arrived on the scene to provide Byrne with backup assistance. He spoke with the victim privately in her residence and accompanied her to a hospital after emergency medical services had arrived on the scene. At the hospital, medical personnel took X-ray images of the victim and treated her injuries. While at the hospital, the victim provided Byrne with an oral statement concerning the incident and her injuries. By 6 a.m. on October 11, 2015, the victim was discharged from the hospital and transported home. Pucci gave the victim a misdemeanor summons for disorderly conduct. Additional facts will be set forth as necessary in the context of the claims raised on appeal.


         First, we address the defendant's claim that § 53a-60b (a) (1) is unconstitutionally vague as applied to her conduct.[3] We disagree.

         In a substitute information dated February 17, 2017, the state charged the defendant with violating § 53a-60b (a) (1) "in the town of Naugatuck ... on or about the 11th day of October, 2015, [in that the defendant] recklessly caused serious physical injury to a disabled person: to wit: [the victim] by means of a deadly weapon, by hitting her with a billy club."

         Section 53a-60b (a) provides in relevant part: "A person is guilty of assault of an elderly, blind, disabled or pregnant person or a person with intellectual disability in the second degree when such person commits assault in the second degree under section 53a-60 or larceny in the second degree under section 53a-123 (a) (3) and (1) the victim of such assault or larceny has attained at least sixty years of age, is blind or physically disabled, as defined in section 1-1f, or is pregnant . ..." As is reflected in the state's substitute information, the state's theory of the case was that the defendant engaged in conduct constituting assault in the second degree as defined by General Statutes § 53a-60 (a) (3) against the victim, who is physically disabled as defined by General Statutes § 1-1f (b). Section 53a-60 (a) provides: "A person is guilty of assault in the second degree when . . . (3) the actor recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . ." Section 1-1f (b) provides: "An individual is physically disabled if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device."

         Relying on the protections afforded to her by the fifth and fourteenth amendments to the federal constitution, the defendant argues that § 53a-60b (a) (1) is impermissibly vague because it expressly relies on the definition of "physically disabled" that is codified in § 1-1f (b). The defendant argues that § 1-1f sets forth a definition of "physically disabled" that is impermissibly broad and that is unclear to the average person. According to the defendant, because § 53a-60b (a) (1) fails to define the offense with sufficient definiteness, the statute was susceptible of being applied in an arbitrary and discriminatory manner against her in the present case. The defendant argues: "Specifically, it allowed [for] a conviction of assault in the second degree of a disabled person where the state introduced minimal evidence that the victim suffered from fibromyalgia, a poorly understood and oftentimes misdiagnosed syndrome. . . . Put another way, the statute was arbitrarily enforced because it is so unclear that ordinary people cannot understand what specifically constitutes 'physically disabled,' thereby allowing the state to rely on [the statute] inconsistently and on an ad hoc basis."

         The defendant clarifies that she does not claim that § 53a-60b (a) (1) is vague on its face, such that she lacked notice of the conduct prohibited by the statute. Rather, the defendant argues, § 53a-60b (a) (1) and § 1-1f are "unconstitutionally vague in application because the legislature, by incorporating § 1-1f into the criminal offense . . . impermissibly delegated basic policy matters to the courts for resolution of whether a diagnosis of fibromyalgia falls within the definition of 'physically disabled' for resolution on an ad hoc basis. In so doing, the enforcement of these statutes in the defendant's case [was] arbitrary." (Footnote omitted.) In arguing that the statute was applied arbitrarily to her, the defendant relies on the fact that she "did not assault a victim in a wheelchair, a victim with an amputation, nor a victim with a type of visible, clearly diagnosable illness, disease, or impairment." Instead, the defendant argues, "she got into a fight with her sister, who has been diagnosed with fibromyalgia ... a poorly defined medical condition about which the medical community remains divided as to its existence."

         The defendant seeks review of this unpreserved claim under the bypass doctrine set forth in Golding, under which "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 . . . exists and . . . 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. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; footnote omitted.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

         The record is adequate to review the claim because the record reflects the conduct that formed the basis of the defendant's conviction under § 53a-60b (a) (1). See, e.g., State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994) (discussing requirements for reviewability). Additionally, we conclude that because a claim that a statute is vague as applied to a defendant implicates the constitutional guarantee of due process that is enshrined in the fourteenth amendment to the United States constitution; see, e.g., State v. Pettigrew, 124 Conn.App. 9, 24-25, 3 A.3d 148, cert, denied, 299 Conn. 916, 10 A.3d 1052 (2010); the claim is of constitutional magnitude. Having determined that the claim is reviewable under Golding, we turn to its merits.

         "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: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . 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. . . .

         "The United States Supreme Court has set forth standards for evaluating vagueness. 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 ...

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