State v. Maurice M.

303 Conn. 18

31 A.3d 1063

STATE of Connecticut

v.MAURICE M.*

No. 18454.

Supreme Court of Connecticut.

Argued March 23, 2011.Decided Nov. 29, 2011.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

NORCOTT, J.

The defendant, Maurice M., appeals, upon our grant of his petition for certification,¹ from the judgment of the Appellate Court affirming the trial court's judgment revoking his probation pursuant to General Statutes § 53a–32,² on the basis of the trial court's finding that the defendant had committed the crime of risk of injury to a child in violation of General Statutes § 53–21(a)(1). ³ State v. Maurice M., 116 Conn.App. 1, 3, 975 A.2d 90 (2009). On appeal, the defendant claims that the Appellate Court improperly concluded that there was sufficient evidence that he violated his probation by committing the crime of risk of injury to a child when he failed to supervise a two year old child who was in his care and able to exit the home. We agree with the defendant and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant undisputed facts and procedural history. “On February 4, 2004, the defendant was convicted of assault in the third degree and sentenced to one year incarceration, execution suspended, and three years probation. The standard conditions of the defendant's probation included that he refrain from violating ‘any criminal law of the United States, this state or any other state or territory.’ On November 26, 2006, the defendant was arrested and charged with risk of injury to a child and, subsequently, with violation of probation.

“The record reveals that the following events led to the defendant's arrest on November 26, 2006. At approximately 11 a.m., Joseph Mortari was driving east on Main Street in East Windsor when he saw a pair of brown children's shoes in the roadway near the center divider line. In an attempt to avoid running over the shoes, Mortari maneuvered his vehicle slightly to the right. As he did, he caught a glimpse of something white near the curb and, turning his full attention to it, realized that it was a small child dressed in a diaper climbing from the street to the curb. He slammed on his brakes, stopping his vehicle about three feet from the child. As this transpired, another vehicle traveling in the opposite direction also stopped. Donna Caldon exited that vehicle, driven by her husband, Peter Caldon, and retrieved both shoes from the street and the child, who was then on the curb. Mortari left his vehicle in the street, and he and Donna Caldon conversed momentarily. Mortari retrieved his vehicle, doubled back and met the Caldons in a parking lot. The three attempted to persuade the child to tell them his name or where he lived. The child would not respond. The three then decided to call the police.

“Sergeant Michael Hannaford of the East Windsor police department arrived at the scene. After speaking with Mortari and the Caldons, Hannaford started going from house to house on Main Street in an attempt to locate the child's home. Soon after, Hannaford was motioned back to the parking lot by Donna Caldon. Hannaford, after seeing the defendant walking toward Donna Caldon and the child, made his way back to the parking lot. It was ten to fifteen minutes after Hannaford arrived at the scene that the defendant emerged from his home and retrieved the child. After speaking briefly with the defendant, Hannaford directed him to take the child home, so the officer could interview Mortari and the Caldons. After conducting the interview, Hannaford went to the defendant's home. There, he questioned the defendant concerning how the child could have gotten from the home to the street.

“The defendant reported that the child was two years old. The defendant told Hannaford that he was the sole caretaker present in the home for the child and the child's eight year old brother.⁴ The defendant told him that the child was playing with his eight year old brother in the house while the defendant was in the living room lying on the couch watching television. The living room was adjacent to the kitchen, where the back door was located, from which, the defendant concluded, the child had apparently exited the house. Hannaford observed that there were no child safety devices on the doorknobs on the back door. The defendant told Hannaford that at some point, the older child informed him that the two year old was missing. The defendant reported to Hannaford that he then searched the house for the missing child and eventually made his way outside where he and the child were reunited. During Hannaford's interview with the defendant, the children's grandparents arrived at the home. Soon after, Hannaford arrested the defendant on a charge of having violated § 53–21.

“On October 19, 2007, the court, T. Sullivan, J., held a violation of probation hearing. Following the hearing, the court rendered judgment, finding that the defendant had violated his probation. The court further noted that the defendant was aware of the conditions of his probation, having acknowledged them in writing and reviewed them on three separate occasions with his probation officer. The court further found that the beneficial aspects of probation were no longer being served in the defendant's case. Accordingly, the court revoked the defendant's probation and committed him to the custody of the commissioner of correction for the unexecuted portion of his original one year sentence.” Id., at 3–6, 975 A.2d 90.

The defendant appealed from the judgment of revocation to the Appellate Court, claiming, inter alia,⁵ that the trial court had improperly concluded that the state had shown by a preponderance of the evidence that the defendant had violated his probation. Id., at 19, 975 A.2d 90. In a divided opinion, the Appellate Court concluded that the trial court's conclusion was not clearly erroneous and affirmed the judgment of revocation. Id.; see id., at 23, 975 A.2d 90 ( West, J., dissenting). The Appellate Court majority reasoned that the testimony presented at the revocation hearing sufficiently established that the defendant had acted with “reckless disregard for a situation that was inimical to the physical welfare of his child.” Id., at 18–19, 975 A.2d 90. Specifically, the Appellate Court concluded that “[t]he evidence was sufficient to show that the [defendant failed] to supervise his children adequately, despite his knowledge that the back door of his home was unsecured....” Id.

In dissent, Judge West concluded that the evidence was insufficient to support the trial court's finding that the defendant had violated his probation. Id., at 26–28, 975 A.2d 90. Judge West first observed that, “[e]ssentially, there are two main factual components supporting the [trial] court's ruling: (1) the ‘accessibility’ of the back door ⁶ and (2) the lack of supervision of the child.” Id., at 26, 975 A.2d 90. Judge West then concluded that the trial court's finding that the back door to the defendant's home was without a “lock” was clearly erroneous, given the complete lack of testimony by any witness at the revocation hearing relative to a lock on the back door. Id., at 26–27, 975 A.2d 90. Judge West further concluded that there was no other evidence in the record to sustain the trial court's conclusion that the defendant had committed the crime of risk of injury to a child. Id., at 27–28, 975 A.2d 90.

On appeal, the defendant argues only that the Appellate Court improperly concluded that there was sufficient evidence that he violated his probation by committing the crime of risk of injury to a child. Specifically, the defendant claims that he did not act with reckless disregard for the child's safety or physical welfare because, in the absence of any evidence of the back door's accessibility, and in light of testimony establishing that his child had never escaped the house in this manner before, it was not reasonably foreseeable that the child would exit the home. The state, in response, contends that the Appellate Court properly concluded that there was sufficient evidence that the defendant committed the offense of risk of injury to a child, and specifically argues, inter alia, that the lack of any past similar incident or evidence of a lock does not preclude the trial court's conclusion. We agree with the defendant and conclude that the Appellate Court improperly determined that, under the facts and circumstances of this case, there was sufficient evidence that the defendant had committed the crime of risk of injury to a child.

We begin with the applicable legal principles. First, we note “that revocation of probation hearings, pursuant to § 53a–32, are comprised of two distinct phases, each with a distinct purpose.... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made.... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 375–76, 944 A.2d 276 (2008). “Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004).

Because the present case concerns the evidentiary phase and the trial court's factual finding that the defendant...