State v. Lori T.

197 Conn.App. 675

232 A.3d 13

STATE of Connecticut

v.LORI T.^*

AC 40384

Appellate Court of Connecticut.

Argued September 13, 2019

Officially released June 2, 2020

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

Prescott, Bright and Devlin, Js.

BRIGHT, J.

The defendant, Lori T., appeals from the judgment of conviction, rendered following a jury trial, of three counts of custodial interference in the second degree in violation of General Statutes § 53a-98 (a) (3). On appeal, the defendant claims that § 53a-98 (a) (3) is unconstitutionally vague in its application to her and that there was insufficient evidence to support her conviction. We disagree with both claims, and, thus, we affirm the judgment of the trial court.

The following facts, on which the jury reasonably could have based its verdict, and procedural history are relevant to the issues on appeal. The defendant's four children, R, L, T, S,¹ were at her Glastonbury home for purposes of visitation over the Memorial Day weekend in 2015. The defendant's ex-husband, the children's father (CF), had sole physical and legal custody of the children, and the defendant had rights of visitation. The children, however, wanted to live with the defendant and not with CF.

In fact, R had been staying with the defendant for several months; after a physical incident involving CF in January, 2015, R, with the involvement of the Norwalk Police Department and the Department of Children and Families, went to stay with the defendant. Over the Memorial Day weekend, the children all decided that they were not going to go home with CF on May 25, 2015.

During the course of the weekend, CF received a couple of e-mails from one of the children telling him that she did not want to return to his home and that she wanted to stay at the defendant's home. CF "went to pick ... up [the children] on Memorial Day ... according to [the] visitation schedule, which was 7:30 [p.m.], and [the defendant] came out of her house and told [him] that she wasn't sending the children out. The children didn't want to come out, and she was going to do what the children wanted to do." CF did not make any attempt to telephone the children regarding their decision to remain at the defendant's home, and he did not attempt to go inside the defendant's home to speak with the children in an effort to persuade them to return to his home. Instead, he went directly to the Glastonbury Police Department.

Officer Brian Barao of the Glastonbury Police Department went to the defendant's Glastonbury home to conduct a welfare check of the children at CF's request. He spoke with each child and determined that they all were okay. He did not arrest the defendant, but, rather, he encouraged her to seek legal counsel and to pursue these matters with the family court, which, the defendant told him, she was in the process of doing.

CF then returned to Norwalk and contacted Norwalk Police Officer Jermaine Nash, the school resource officer in Norwalk, whom he told about the children's refusal to return to his home. Nash and CF knew each other through sporting programs at the schools, and Nash had been a visitor to CF's home several times. A few days after speaking with CF, Nash contacted the defendant by telephone and asked her why the children were not returned to CF. The defendant told Nash that "the kids didn't want to come out to [CF]." Nash made a comment about the defendant being "the adult," and he asked her why she just did not send them out to CF. According to Nash, the defendant told him that "[s]he won't make the children come out to him."

Wanting to ensure that the children returned to school, Nash told the defendant that she could be in trouble if she did not get the children back into school.

The defendant agreed that she would return the children to school, and Nash agreed that he would not seek a warrant for her arrest. When the children still were not in school approximately one week later, Nash followed up with the defendant, who said she would not return the children to school. Nash then sought an arrest warrant on one charge of custodial interference in the second degree, and he contacted the Department of Children and Families.

On June 2, 2015, Nash contacted the Glastonbury Police Department for assistance in executing the arrest warrant; Officer David Hoover of the Glastonbury Police Department was at the defendant's Glastonbury home when Nash arrived. The defendant's aunt also was present at the home. At some point, CF also arrived at the scene. L testified that Nash threatened the children "by telling [them that] if [they] didn't go back to [CF], he would ... pick [them] up and forcibly take [them] outside." T described Nash as "yelling" and "kind of harsh." Both Hoover and Nash tried to persuade the children to go with CF, but the children continued to refuse. Hoover telephoned the Department of Children and Families, and he arranged a meeting at its Manchester office, where he brought the children. The children continued to refuse to go with CF, and the defendant's aunt then was granted temporary custody of the children, who later were placed with their maternal grandmother, with whom they resided for several months after this incident.

The defendant later was charged with four counts of custodial interference in the second degree, one count for each child. Immediately before jury selection, the state dropped the charges as to R, the child who had been staying with the defendant for several months, and proceeded to trial on the three remaining counts. In a long form information dated January 9, 2017, the state charged the defendant in count one as follows:

"The [s]tate of Connecticut accuses [the defendant] of [c]ustodial [i]nterference in the [s]econd [d]egree and charges that at the city of Glastonbury on or about May 25, 2015 at approximately 7:30 [p.m.] ... the ... [defendant] did hold and keep for a protracted period and otherwise refused to return a child, to wit: [L], who was less than sixteen years old, to such child's lawful custodian, to wit: [CF] of Norwalk, after a request by such custodian for the return of such child, knowing that she had no legal right to do so, in violation of ... § 53a-98 (a) (3)." The remaining two counts contained similar accusations for T and S. At trial, the state's theory of the case focused on the defendant's alleged refusal to return the children to CF. Following a trial to a jury, the defendant was convicted of all three counts.² This appeal followed. Additional facts will be set forth where necessary.

I

On appeal, the defendant claims that § 53a-98 (a) (3) is unconstitutionally vague in its application to her.³ Specifically, she argues that the statute fails to define what it means when someone "otherwise refuses to return a child" to his or her lawful custodian, and, taking this lack of definition into consideration, it was impossible, under the facts of this case, for the defendant to know that her failure to force the children to go with their father could amount to a refusal to return under the statute. She argues that she did not refuse to return the children, as that phrase reasonably is understood but, rather, that the children voluntarily elected not to return to their father. She contends that the statute is void for vagueness as applied to her because it did not give her any notice that inaction on her part exposed her to criminal liability. Additionally, she argues that the vagueness of the statute impermissibly delegates the resolution of the definition of the phrase "refuses to return" to police officers, judges and juries on an ad hoc and subjective basis, and, therefore, the statute is subject to arbitrary enforcement, which clearly is demonstrated by the facts of this case. We are not persuaded.

"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 [her], the [defendant] therefore must ... demonstrate beyond a reasonable doubt that [she] had inadequate notice of what was prohibited or that [she 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. ... Moreover, an ambiguous statute will be saved from unconstitutional vagueness if the core meaning of the terms at issue may be elucidated from other sources, including other statutes, published or unpublished court opinions in this state or from other jurisdictions, newspaper reports, television programs or other public information ....

"Finally, even though a statutory term that is susceptible to a number of differing interpretations may be impermissibly vague as applied to some situations, the term is not necessarily vague as applied in all cases; rather, whether the statute suffers from unconstitutional vagueness is a case-specific question, the resolution of which depends on the particular facts involved. ... Similarly, a term is not void for vagueness merely because it is not expressly defined in the relevant statutory scheme." (Citations omitted; internal quotation marks omitted.) State v. DeCiccio , 315 Conn. 79, 87–88, 105 A.3d 165 (2014).

AFailure To Provide Notice

The defendant claims that § 53a-98 (a) (3) is...