State v. Euclides L.

189 Conn.App. 151

207 A.3d 93

STATE of Connecticut

v.EUCLIDES L.^*

AC 40032

Appellate Court of Connecticut.

Argued January 15, 2019

Officially released April 9, 2019

Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, for the appellant (defendant).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Eveleigh, Js.

EVELEIGH, J.

The defendant, Euclides L., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1).¹ On appeal, the defendant claims that the trial court violated his constitutional rights by failing to instruct the jury that it should acquit the defendant if it concluded that his use of force in caring for his daughter, V, was an accident. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and J have one child together, V. From October, 2014, to January 9, 2015, the defendant, J and V lived together in an apartment in Vernon. During this time, the defendant and J were V's primary caregivers.

On January 9, 2015, V, who was four months old at the time, was fussy because she was suffering from a cold and had received vaccinations two days earlier. At approximately 9:30 p.m., the defendant and J took V upstairs to put her to bed. While the defendant prepared V for bed, J was downstairs, although she periodically came upstairs to check on the defendant and the child. At approximately 11:10 p.m., after V fell asleep, the defendant joined J downstairs.

After spending "about a minute [downstairs] ... [the defendant] asked J if [he] should wake [V] up and feed her because she didn't eat before bed." After J agreed that they should try to feed V, the defendant "grabbed [V's] bottle and went upstairs and [woke] her up." When the defendant woke V, the child began to cry hysterically. Because V was congested and "mucous was coming out of her nose in bubbles," the defendant tried to suction mucous out of her nose using a plastic bulb syringe. V wiggled and resisted the defendant so the defendant "grabbed her face." This episode lasted approximately a minute to a minute and a half.

J, who was downstairs while the defendant attempted to suction V's nose, heard V crying and went upstairs to check on the defendant and the child. As J approached the room in which the defendant was tending to V, she heard a muffled cry. When J entered the room, she saw that there was blood around V's nose and that the child's skin was blue in color. J believed that V needed oxygen and feared that this was a side effect of the vaccinations V had received two days earlier.²

J and the defendant immediately drove V to Rockville General Hospital (hospital). They arrived at the hospital at approximately 11:30 p.m. While the defendant parked the car, J ran into the hospital carrying V in her arms. J told the hospital staff that V was turning blue and needed oxygen V was crying when she arrived, butstopped after being comforted by hospital staff.

Danielle Mailloux, a physician employed at the hospital, attended to V. Mailloux observed a red mark under the child's nose and a purple round mark that was approximately two centimeters in diameter on her left cheek. During the first two hours that V was at the hospital, this mark grew in size and two additional marks developed on the right side of the child's face. Mailloux believed that the marks on V's face were bruises.

Mailloux inquired as to V's medical history and concluded that the injuries could not be accounted for by any preexisting medical condition, including the vaccines V had received two days earlier. Mailloux asked V's parents how the child acquired the injuries, but neither the defendant nor J was able to provide Mailloux with an explanation. Because the unexplained bruising on V suggested abuse, Mailloux determined that she would need to file a report with the Department of Children and Families (department).

Mailloux recommended that V be transferred to Connecticut Children's Medical Center in Hartford for inpatient treatment. Mailloux informed the defendant and J that after V was transferred, the department was going to become involved. At this point, the defendant became upset and said he would not sign the paperwork to have V transferred to Connecticut Children's Medical Center.

Despite the defendant's protestations, on January 10, 2015, V was transferred to Connecticut Children's Medical Center. Once V arrived, the police interviewed the defendant and J separately. During the interviews, neither the defendant nor J was able to explain how V had sustained her injuries. On January 12, 2015, William Olsen, an employee of the department, interviewed the defendant and J. Both the defendant and J indicated that they did not hurt V but again failed to provide an explanation for the child's injuries.

Also on January 12, 2015, Nina Livingston, a physician and the director of the Suspected Child Abuse and Neglect team at Connecticut Children's Medical Center, evaluated V. Livingston noted that V had "facial bruising in a wraparound distribution [from] ear to ear...." Specifically, V had bruises on her forehead, left eyelid, cheeks, temples, jawline, both ears, and above and below her left eye. Additionally, V had abrasions below her right nostril, right ear, and left temple, as well as subconjunctival hemorrhages in both eyes. Because the injuries could not be accounted for by alternative medical causes and V could not yet roll over, Livingston concluded that V's injuries had been caused by someone else. On the basis of Olsen's and Livingston's findings, the department invoked a 96 hour administrative hold on behalf of V.

On January 19, 2015, a week after the department invoked the 96 hour hold, the defendant revealed to J that he had caused V's bruises by holding her face while trying to suction mucous from her nose. J encouraged the defendant to disclose this information to the police. The defendant agreed to speak with the police, and J drove him to the police station, where, in a recorded video statement, the defendant admitted that he was responsible for V's bruises.

The defendant also provided the police with a written statement in which he stated the following in regard to his attempts to suction V's nose: "I was almost taking my anger out on [V]. It was almost like we were having a conversation and she was not letting me do it and I was going to do it. I was holding her face hard to keep her head still, I would say it was a 10 on a scale from 1 to 10. She was fighting me and flailing her face back and forth. I was holding [her] harder than I should hold a baby.... I am devastated ... that I had to put my daughter through this because I couldn't control myself.... It was just the frustration of what I was going through and I lost control."

In February, 2015, the defendant was arrested in relation to V's injuries. On June 28, 2016, the state charged the defendant with one count of risk of injury to a child in violation of § 53-21 (a) (1). The defendant entered a not guilty plea and elected to be tried by a jury.

On September 29, 2016, following a trial before a jury, the defendant was convicted of one court of risk of injury to a child in violation of § 53-52 (a) (1). The defendant then filed the present appeal in which he argues that the trial court violated his constitutional rights by failing to instruct the jury that his use of force in caring for V was an accident. The state argues that the defendant's claim fails because (1) he waived his appellate claim by abandoning the precise language of his request to charge on accident, (2) the trial court's instruction on general intent was legally correct and gave ample guidance to the jury on the issue of accident, and (3) any error in failing to instruct the jury more fully on accident was harmless. Even if we assume, without deciding, that the defendant did not waive his appellate claim by abandoning the precise language of his request to charge, we conclude that his claim fails on the merits because the court's charge was legally correct.³

The following facts are necessary for the resolution of this issue. On August 31, 2016, the defendant submitted the following request to charge: "For you to find the defendant guilty of risk of injury, you must find beyond a reasonable doubt that the defendant intentionally squeezed [V's] face too hard. If you find that the defendant accidentally used excessive force, i.e., he did not know that he was squeezing [V's] face too hard, then you must find him not guilty. The evidence to which this charge applies is the testimony of the defendant and [J] that the defendant held [V's] head while suctioning her nose."

On September 2, 2016, the state argued, with respect to the defendant's proposed charge: "I would also take issue with the claim of accident, when this is a ... general intent ... crime and all the state must prove is that the defendant intended to do the act.... [In a risk of injury charge] the state need only prove [the defendant] intended to do the act, not inflict the injury .... [A]n accident defense isn't relevant to this kind of charge. The defendant isn't claiming he accidentally grabbed the child's face. He's claiming he accidentally inflicted the injury.... [T]here is no accident defense in this case because ... by [the defendant's] own admissions ... he purposely grabbed the child's face, but thereafter used excessive force and inflicted the injury." The defendant did not respond to the state's objection to his request to charge.

On September 28, 2016, the court provided counsel with a draft of the proposed charge. This version of the charge provided: "Intent relates to the condition of mind...