State v. Nanowski

56 Conn. App. 649

746 A.2d 177

STATE OF CONNECTICUT v. JAROSLAW NANOWSKI

(AC 17647)

Appellate Court of Connecticut.

Argued December 6, 1999.

Officially released February 15, 2000.

O'Connell, C. J., and Landau and Stoughton, Js. John T. Walkley, special public defender, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul Rotiroti, assistant state's attorney, for the appellee (state).

Opinion

LANDAU, J.

The defendant, Jaroslaw Nanowski, appeals from the judgment of conviction, rendered after a jury trial, of failure to pay wages in violation of General Statutes § 31-71c (a) and (b).¹ On appeal, the defendant claims that (1) General Statutes § 31-71a et seq.² is unconstitutional as applied to him, (2) if the statute is constitutional on its face, the trial court improperly (a) struck the defendant's mistake of law defense and (b) failed to instruct the jury that the state was required to prove criminal intent beyond a reasonable doubt, and (3) there was insufficient evidence to prove that the defendant, not the corporation, was legally responsible under § 31-71c. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In late 1992, the defendant and two other individuals founded American Investment Company, Inc. (corporation), pursuant to the laws of the state of Connecticut. The defendant, in addition to being the majority shareholder, was the president of the corporation and was responsible for its day-to-day operation. He also was responsible for the hiring and firing of personnel, and for signing and distributing paychecks. He told the corporation's employees that he owned the business and was the person in charge. The corporation's business was to help eastern European businesses obtain financing.

Between May and the end of September, 1995, six individuals employed to perform services for the corporation failed to receive compensation. In some instances, the defendant gave the employees paychecks that were returned for insufficient funds. In other instances, the defendant gave employees paychecks but asked them not to present the checks for payment until he advised them to do so. In yet other instances, the defendant did not give employees paychecks. The defendant made representations to the employees that they would be paid when funds were received from clients. Eventually, the employees left the corporation and never were paid for some or all of the services they rendered during the relevant period. They were owed $18,150. The employees, therefore, filed complaints with the department of labor.³ The defendant subsequently was arrested and charged with failure to pay wages in violation of § 31-71c. Following his conviction, he was given a total effective sentence of ten years imprisonment, suspended after three years, and five years probation.

I

The defendant's first claim is that § 31-71a et seq. is unconstitutional⁴ as applied to him because the increased penalty for conviction imposed by the legislature in its 1993 amendments to General Statutes § 31-71g;⁵ see Public Acts 1993, No. 93-392, § 4; requires that an inference of intent be read into § 31-71c, specifically, that one cannot be convicted of a crime without an element of mens rea. We do not agree.

"Before we begin our analysis, we note that [a] party who challenges the constitutionality of a statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality.... Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 203, 660 A.2d 358 (1995); State v. Merdinger, 37 Conn. App. 379, 382, 655 A.2d 1167 [cert. denied, 233 Conn. 914, 659 A.2d 187] (1995). In addition to showing that [the statute] is unconstitutional beyond a reasonable doubt, the defendant must show that its effect or impact on him adversely affects a constitutionally protected right which he has. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569, 409 A.2d 1020 (1979). Finally, [w]hile the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case. Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994)." (Internal quotation marks omitted.) Giordano v. Giordano, 39 Conn. App. 183, 188-89, 664 A.2d 1136 (1995).

The constitutionality of § 31-71c was first challenged in State v. Merdinger, supra, 37 Conn. App. 382, in which the defendant claimed that the statute was unconstitutional because it did "not prescribe a requisite mens rea, specifically, intent not to pay wages is not an element of the crime." This court upheld the constitutionality of the statute, citing the seminal United States Supreme Court case on the issue, Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952). In both Merdinger and this case, the defendants rely on the common-law rule that the commission of a crime always encompasses the notion of an evil will or intention to do wrong.⁶ The defendant in the case before us acknowledges that there is a different class of laws that came into existence during the nineteenth century, primarily due to the Industrial Revolution, to protect the public health, welfare and safety. Violation of these regulatory laws became known as "public welfare offenses." Id., 255. "While many of these duties are sanctioned by a more strict civil liability, lawmakers ... have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations .... These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element." Id., 254-56.

"It is well established that a criminal statute is not necessarily unconstitutional because it imposes strict liability. [P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance. Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S. Ct. 663, 54 L. Ed. 930 (1910). The constitutional requirement of due process is not violated merely because mens rea is not a required element of a prescribed crime. United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943)." (Internal quotation marks omitted.) State v. Merdinger, supra, 37 Conn. App. 382-83.

Although the defendant notes the legal philosophy and tenets explained in Morissette and Merdinger, he argues that his case is somehow different because the penalty imposed on him is more severe. "While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes, even where the statutory definition did not in terms include it ... [t]he legislature may, if it so chooses, ignore the common-law concept that criminal acts require the coupling of the evil-meaning mind with the evil-doing hand and may define crimes which depend on no mental element, but consist only of forbidden acts or omissions.... Whether or not a statutory crime requires mens rea or scienter as an element of the offense is largely a question of legislative intent to be determined from the general scope of the act and from the nature of the evils to be avoided." (Citation omitted; internal quotation marks omitted.) State v. Swain, 245 Conn. 442, 454, 718 A.2d 1 (1998).

The defendant acknowledges the public policy purpose of § 31-71a et seq. The "statute is one of strict criminal liability designed to eradicate the evil of nonpayment of wages even though those without an evil purpose might end up ensnared in its net." State v. Merdinger, supra, 37 Conn. App. 385. The defendant's position, however, is that the 1993 amendments to § 31-71g are unconstitutional because the legislation changed the character of the penalties prescribed for failure to pay wages from misdemeanor to felony. This change, the defendant argues, is contrary to dicta in Morissette.⁷ The defendant believes, therefore, that the greater penalty now imposed by § 31-71g requires the inference of a mens rea in § 31-71c.

Neither the United States Supreme Court nor our Supreme Court has held that the magnitude of the penalty determines the constitutionality of strict liability statutes. "There is a suggestion in some of the early cases dealing with police regulatory legislation not requiring any criminal intent that the penalties must be petty and not involve imprisonment.... The question left undecided in those cases, whether a provision for imprisonment necessarily implied a requirement of mens rea,...