IN RE: K. N.-M. (dob 4/25/1991) 1 (2013)

MEMORANDUM OF DECISION ON MOTIONS TO DISMISS

The respondent, K. N.-M., has filed motions seeking to dismiss the charges in the four above-captioned delinquency petitions on the grounds that the affidavits submitted in support of the arrest warrants in these matters lack probable cause or otherwise contain insufficient “evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial,” as permitted in juvenile prosecutions-pursuant to Practice Book §§ 31a–3 ² and 41–8.³  As his counsel correctly notes, the restrictions contained in Practice Book § 41–9 ⁴ against challenging a criminal prosecution under subsections (5) or (9) of § 41–8 do not apply in juvenile prosecutions.

Each petition charges the respondent with committing the delinquent acts of risk of injury to a minor in violation of General Statutes § 53–21 ⁵ and/or sexual assault in the fourth degree in violation of General Statutes § 53–73a ⁶ in the town of Bloomfield on various dates between 2002 and 2007.  “Our case law has interpreted § 53–21[ (a) ] (1) as comprising two distinct parts and criminalizing two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age:  (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare ․ and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.”  (Citation omitted;  internal quotation marks omitted.)  State v. Padua, 273 Conn. 138, 147–48, 869 A.2d 192 (2005).   The first part is commonly referred to as the “situation prong” and the second as the “act prong.”   See, e.g., State v. Owens, 100 Conn.App. 619, 635 n.12, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007).  “Although both parts of the statute are intended to protect children from predatory and potentially harmful conduct of adults, the two parts nonetheless are directed at different kinds of harm to children.”  State v. Payne, 240 Conn. 766, 774, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004).   Section § 53–21(a)(2) directly proscribes “contact with the intimate parts” of a minor “in a sexual and indecent manner likely to impair the health or morals of such child.”   The courts have construed the improper contact with intimate parts prohibited by § 53–21(a)(2) as meaning “sexual contact” within the meaning of § 53a–65(3).⁷  State v. James G., 268 Conn. 382, 415, 844 A.2d 810 (2004).   Under both the risk of injury and sexual assault statutes, “[s]exual contact with a victim's intimate parts can be indirect and through clothing as long as it occurs for the purpose of the actor's own sexual gratification or for the purpose of degrading or humiliating the victim.”  State v. John O., 137 Conn.App. 152, 158, 47 A.3d 905, cert. denied 307 Conn. 913, 53 A.3d 997 (2012).

I

DOCKET NO. –8399

In the petition ending in docket number –8399, the respondent is accused of committing risk of injury to a minor in violation of § 53–21 on or about January 3, 2004.⁸  Paragraph seven of the affidavit in support of the juvenile arrest warrant alleges, in relevant part, that a minor female identified as “Victim 2” reported to the police earlier this year that, when she was about 7 years of age and the respondent was 12 or 13 years old, she was in a closet in a spare bedroom located in the basement of her home on Northcliff Drive in Bloomfield with the respondent and another minor female, identified as “Victim 3.” While in the closet, the respondent “asked them which one had bigger breasts and he made them pull up their shirts, which they did.”   The affidavit elsewhere identifies the respondent's birth date as April 25, 1991, and states that he was five years, eight months, and nine days older than Victim 2, whose birth date is thus approximately January 3, 1997.

The respondent challenges this charge on the following grounds:  (1) that the arrest warrant affidavit contains no allegations (i) “to create probable cause [rising] to the level of ‘in a sexual and indecent manner’ “;  (ii) as to what “the alleged suspect did to make the alleged victims reveal their breast[s],” or (iii) that “the showing of the breast[s] constituted ‘contact with intimate parts' or was sexual and in an indecent manner”;  and (2) that the date of January 3, 2004, on which the respondent is alleged to have committed this conduct is “unreliable and fictitious.”

Since the factual allegations in the arrest warrant affidavit supporting this charge do not specify any actual contact, whether direct or indirect, between the respondent and either of the victims, it cannot pass muster under the act prong of § 53–21(a)(1) or the “sexual contact” required under subsection (2) of the statute.   Accordingly, the charge rises or falls on whether it satisfies the situation prong of § 53–21(a)(1).

“[T]he first part of § 53–21[ (a)(1) ] prohibits the wilful creation of a ‘situation’ likely to impair the health of a child and thus encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible.”  State v. Payne, supra, 240 Conn. 774.   The elements under the situation prong are:  “(1) the defendant's conduct was wilful or unlawful;  (2) the defendant created, acquiesced in or was deliberately indifferent to a situation that was likely to impair the victim's morals;  and (3) the victim was younger than sixteen years of age.”  State v. Eastwood, 83 Conn.App. 452, 475, 850 A.2d 234 (2004), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008).  Section 53–21(a)(1) identifies three potential classes of injuries:  endangerment to “the life or limb” of the child;  likely injury to the health of the child;  and likely impairment of the morals of the child.   Under the situation prong, actual contact with a victim's body is not required.   State v. Robert H.,*

Although there is no requirement under § 53–21 of force or compulsion, the affidavit does recite Victim 2's statement that the respondent “made” the two girls expose their breasts.   Two of the dictionary definitions of “make,” which is the present tense of “made,” are “to cause to happen to or be experienced by someone” and “to cause to exist, occur, or appear”;  another definition is “to cause to act in a certain way” or “compel.”   Merriam–Webster Collegiate Dictionary (11th 3d.2003).   Any of these definitions would lead to the logical conclusion that, by asking the two young girls whose breasts were larger and making them pull up their shirts, the respondent was instrumental in causing them to pull up their shirts and expose their breasts and hence “created, acquiesced in, or was deliberately indifferent [to]” the situation in which they did so.   Common sense dictates that this language meets the requirement of alleging the respondent's culpability under the statute:

[A]ffidavits for search warrants ․ must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion ․ Technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area.   A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based ․ Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.   However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.   Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

(Citations omitted.)  United States v. Ventresca, 380 U.S. 102, 108–09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In his second argument, the respondent claims that the January 3, 2004, date used by the officer is “unreliable and fictitious.”  “A criminal defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial ․ This requirement, however, does not obligate the state to provide the defendant with a specific date of the alleged offense, when time is not a material element of the crime charged or when a precise date is unavailable.   Where the [information] alleges that an offense allegedly occurred ‘on or about’ a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date ․ The courts agree that when the [information] uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient.”  (Citations omitted;  internal quotation marks omitted.)  State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990);  see also State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984) (holding that “[t]he state does not have a duty ․ to disclose information which the state does not have.   Neither the sixth amendment [to] the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise”).   On the other hand, “the state cannot satisfy the requirement of providing the date or time of the offense within reasonable limits by arbitrarily selecting dates or times.”   (Emphasis omitted.)  State v. Blasius, 211 Conn. 455, 463, 559 A.2d 1116 (1989).

Here, Victim 2 reported that this incident happened when she was about 7 years old.   Since she was born on approximately 3 January 1997, she would have been 7 years old on January 3, 2004, which is the date alleged in the information.   There is no other basis specified in the affidavit for why this particular date was selected.   This court has found no reported cases in this state as to whether a time frame of one year can be considered to be “reasonably near to the specified date.”   Although the date used here does appear to be somewhat arbitrary, “[p]retrial dismissal of criminal charges in any type of case is such a drastic remedy that it should not be resorted to lightly ․ Dismissal of an information is a drastic action that is appropriate in cases where there was a need either to eliminate prejudice to a defendant in a criminal prosecution, where it was impossible to do so by imposition of lesser sanctions, or to deter a pattern of demonstrated and longstanding widespread or continuous official misconduct.”  (Citations omitted;  internal quotation marks omitted.)  State v. Bergin, supra, 214 Conn. 662, 574 A.2d 164 (1990).

In State v. Mangione, 15 Conn.App. 251, 256, 545 A.2d 1131 (1988), cert. denied, 209 Conn. 818, 551 A.2d 757, cert. denied, 489 U.S. 1017, 109 S.Ct. 1132, 103 L.Ed.2d 194 (1989), the Appellate Court rejected a claim that an information alleging the commission of risk of injury “on divers dates between August 1982 and November 1984” was constitutionally defective by not providing adequate notice.   As the court further noted in George M. v. Commissioner of Correction, 101 Conn.App. 52, 60, 920 A.2d 372 (2007), alleging a date range during which offenses are alleged to have been committed is not an unusual charging technique and “has been deemed reasonable in cases ․ in which the victims are of a tender age, there is a continuing nature to the offenses alleged and the capacity of the victims to recall specifics precludes the state from alleging events with exactitude.”

Rather than adopting the drastic remedy here of dismissing the petition on the grounds that “on or about” January 2, 2004 is not reasonably near the date that the delinquent act is alleged to have been committed, this court orders the state (1) to file an amended information or bill of particulars comporting with Mangione and (2) to furnish the respondent with information that provides a more particular basis for the date(s) on which the respondent is alleged to have committed the delinquent act.   See e.g., State v. Vumback, 263 Conn. 215, 226, 819 A.2d 250 (2003) (concluding that the state “failed in its duty to inform the defendant, within reasonable limits, of the time when the offense charged had been committed” where the state had charged a date range of six years for commission of certain sexual offenses against a minor but had at least some knowledge of the approximate dates on which some of the alleged conduct took place).   Accordingly, the motion to dismiss the charges in docket number –8399 is denied.

II

DOCKET NUMBER –8452

In the petition ending in docket number –8452, there are two counts charging the respondent with committing the delinquent acts of risk of injury to a minor in violation of § 53–21 and sexual assault in the fourth degree in violation of § 53a–73a on or about June 4, 2005.   Paragraphs four and five of the arrest warrant affidavit allege that a female identified as “Victim 3” reported to police that when she was between 6 and 8 years old, the respondent would repeatedly “take [a female identified as] Victim 1, Victim 2, and Victim 3 into a closet” in the basement of her aunt's home on Northfield Drive in Bloomfield where “he [would] have them sit there and take turns either having sex with him or using their hands on his ‘private area.’  “ According to paragraph five, when asked what the girls would have to take turns doing, Victim 3 responded:  “All I know is my part was to use my hands ․ I don't really know what he'd make my other cousins do but as far as me he'd make me use my hands.”   Paragraph seven of the affidavit also states that Victim 1 told a forensic interviewer that she had witnessed the respondent “make Victim 2 and Victim 3 give him ‘hand jobs' (penis in hand masturbation).” ⁹

The respondent's motion to dismiss argues that this conduct does not fit within the definition of sexual contact under § 53a–73a because there are no allegations that he “was aroused or engaging in said activity for sexual gratification.”   The court disagrees.   The allegations of paragraph five and seven, and, in particular, the statements by Victim 3 that the respondent would “make me use my hands” on his “private area,” allege facts sufficient to find probable cause that the respondent acted for purposes of sexual gratification as required under § 53a–73a and performed an act in a sexual and indecent manner, as is necessary for both the act prong of § 53–21(a)(1) and the sexual contact portion of § 53–21(a)(2).

The respondent also claims that the affidavit does not furnish “any verifiable detail or any details” and provides no specific allegations as to what “the juvenile did to compel, threaten, or force the alleged victim into the alleged activity.”   On this account, the relative ages of the respondent and Victim 3 are pertinent.   According to paragraph two of the affidavit, the respondent is seven years, one month, and ten days older than Victim 3. As he was born on April 25, 1991, Victim 3's birth date is approximately June 4, 1998.   Under paragraph four of the affidavit, Victim 3 was between 6 and 8 years old when these acts are alleged to have occurred, thus the respondent would have been between 13 and 15 years of age.   The affidavit alleges that the respondent would take this younger female, who was approximately half his age, into a closet and make her use her hands on his private parts.   As noted above, force or compulsion is not an element of § 53–21.   The delinquent act occurs if there is sexual contact for purposes of sexual gratification or performed in an sexual and indecent manner.   The facts alleged are sufficient to establish probable cause for both offenses.

The respondent's final argument as to this petition, made in oral argument on the motions, is that the affidavit contains no support for the alleged date of June 4, 2005, which is the seventh birthday of Victim 3 and, according to paragraph four of the affidavit, midway during the period that conduct occurred, when she was between 6 and 8 years old.   For the same reasons enunciated in docket number –8399, the court orders the state to file an amended information or bill of particulars more properly characterizing the time when these acts are alleged to have occurred, as in State v. Spigarola, 210 Conn 359, 386, 556 A.2d 112 (1989), where the allegation was “on or about divers dates between November 11, 1971, and June 1972.”   Accordingly, the motion to dismiss the charges in docket number –8452 is denied.

III

DOCKET NUMBER –8490

The second and third counts of the information in the petition ending in docket number –8490 accuse the respondent of committing the delinquent acts of risk of injury to a minor in violation of § 53–21 and sexual assault in the fourth degree in violation of § 53a–73a on or about June 1, 2002.¹⁰  Paragraph seven of the arrest warrant affidavit states that Victim 1 recounted that when she was eight years old and the respondent was 11 years old, she lived at a home on Scott Drive in Bloomfield.   She claimed that while she was in a swimming pool there with the respondent, a male cousin named “Ray,” and Victims 2 and 3, the respondent “touched her ‘private part’ or ‘vagina’ over her bathing suit.”

The respondent moves to dismiss these charges on four grounds:  (1) he claims that the affidavit contains no allegation that touching was intentional, for purposes of sexual gratification as opposed to accidental contact, or that defendant had any knowledge of it happening;  (2) there is insufficient information as to the date ¹¹ or conduct alleged to warrant prosecution on these charges;  (3) prosecution for risk of injury and sexual assault in the fourth degree violates the double jeopardy clause; ¹²  and (4) the applicable statute of limitations for § 53a–73a in June 2002 was only one year.¹³

With regard to the respondent's claim that there are no allegations that the respondent acted intentionally, a mental state necessary for both § 53–21 ¹⁴ and § 53a–73a, the allegation of his touching Victim 1's “private part” or vagina happened in the context of a respondent who is alleged to have repeatedly pulled down his pants and shown Victim 1 his private parts in the year preceding the incident in question, when Victim 1 had lived at the Garrison Terrace home.   In addition, Victim 1 described an escalation of the respondent's conduct from “showing” to “touching,” and later to what she described as a “sexual assault” in which the respondent had an erect penis.   This last incident occurred after her family moved to a house on Northcliff Drive in Bloomfield.   Yet, although the facts of an arrest warrant affidavit are to be viewed most favorably to the state;  State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984);  there is absolutely no information here that on the particular occasion in question the defendant acted intentionally or was even aware of the alleged conduct.   The court agrees with the respondent that the facts contained in the affidavit are insufficient for continuing such an information or the placing of the respondent on trial.   The second and third counts of the information charging risk of injury to a minor and sexual assault in the fourth degree are therefore dismissed without prejudice.¹⁵

IV

DOCKET NUMBER –8493

In the petition ending in docket number –8493, the respondent is charged with two counts each of risk of injury to a minor and sexual assault in the fourth degree for delinquent acts alleged to have occurred on or about March 27, 2005, and January 22, 2007.   In considering the pending matters, the court has taken judicial notice of the arrest warrant application and affidavit in juvenile docket number 0000288429 (hereinafter –8429), which has been transferred to adult criminal court and charges the respondent with committing sexual assault in the first degree and risk of injury to a minor on or about September 1, 2005 and with five additional counts of risk of injury to a minor and sexual assault in the fourth degree on or about January 22, 2007.¹⁶

The respondent moves to dismiss the charges brought in this petition on the following grounds:  (1) that there is no allegation of direct sexual contact with intimate parts between the respondent and either of the alleged victims for the offenses alleged to have occurred on January 22, 2007;  (2) that there is no allegation of what the respondent did to make the alleged victims engage in the conduct;  and (3) that the dates used are fictitious.   The respondent also argues that it cannot be ascertained, from the arrest warrant applications in docket numbers –8493 and –8429, what conduct he is being charged within each docket number.

A

The court first addresses the respondent's argument that it cannot be ascertained from the arrest warrant applications what conduct he is being charged with.   Paragraph two of the affidavit in docket number –8493 states that Victim 2 reported to police and forensic interviewers earlier this year that she was sexually assaulted by the respondent “about four times a month” at family gatherings at her home on Northcliff Drive in Bloomfield beginning when she was in preschool.   According to paragraph five of the affidavit, Victim 2 states that these assaults “mainly occurred in a ․ closet of the spare bedroom in the basement,” where there were “numerous times [when the respondent] would pull her pants down and rub his penis on her vagina.”   The affidavit recounts that “[v]ictim 2 said [the respondent's] penis would touch her vagina but had no memory of [his] penis going ‘in’ “ and that she “also remembers the respondent ‘making her give him hand jobs' ․ [which she] described as:  holding his penis and moving up and down with your hand.”   According to the affidavit, Victim 2 said that “there was a daybed in the basement” and the respondent “would sometimes make a fort using the daybed and sexually assault her, Victim 1, and Victim 3 under the fort.”   She said that the respondent “would get on top of them, pull down their pants and underwear, and pull his pants down,” that “she saw things happen to Victim 1 and Victim 3 under the daybed and [the respondent] was doing the same routine with them as he did with her,” but that although “she saw things happen to Victim 1 and Victim 3,” she “did not remember exactly what happened to them.”

According to the affidavit in docket number –8493, Victim 2 stated that the first time she was sexually assaulted was when she was preschool, but she could not otherwise provide specific dates or ages for when most of the incidents occurred.   The use of the date “on or about” January 22, 2007 for the delinquent acts alleged in that petition and in docket number –8429 likely derives from a statement made by Victim 1 that is present in both affidavits, namely that the respondent and Victims 1, 2, 3, and 4 made a fort out of a daybed downstairs at the Northcliff Drive home in a spare bedroom that later became Victim 1's bedroom.   Both affidavits recount that Victim 1 said that the fort was built “sometime before the summer of 2007 but after 2005.”   She said that “she knew it was after 2005 because her grandfather had lived there for a short time and was no longer living there” and her mother has told police that the grandfather lived there in 2003.  (See paragraph ten of –8493 and nine of –8429.)

The arrest warrant application in –8493 also alleges other delinquent conduct by the respondent near the daybed.   According to paragraph ten, Victim 1 told police that on one occasion, she was underneath the daybed/fort with the respondent and Victims 2 and 3, the latter two having fallen asleep.  “Victim 1 said that [the respondent] took her pants off and had his pants down to his ankles.   Victim 1 said [the respondent] had gotten on top of her, that he was ‘hard’ (erect penis), and he tried to penetrate her.”   She said that “while [the respondent] was assaulting her by trying to vaginally penetrate her, she told him she would do ‘other thing,’ referring [to] a hand job.”   According to the affidavit, when the police officer “asked Victim 1 if [the respondent] stopped at that point ․ [she] said [he] moved on to Victim 2 and Victim 3 [and] clarified that earlier in the night [the respondent] went over to Victim 2's and Victim 3's side of the fort and that later he went to her side of the fort and assaulted her.   Victim 1 said this was the only night she saw [the respondent] on top of Victim 3 ․ but she didn't remember [the respondent] being on top of Victim 2.” The affidavit gives the respondent's date of birth as April 25, 1991, and paragraph ten states that “according to Victim 1, [the respondent] was 14 or 15 years old the first time she remembered him having an erection.   This indicates that in any sexual assaults that Victim 1 disclosed, where [the respondent] had an erect penis, including this assault, [the respondent] would have been a minimum of 14[to] 15 years old.”   This same incident appears to be retold in paragraph nine of the arrest warrant affidavit for –8429.

Paragraph eleven of the arrest warrant affidavit in –8493 also recounts the statement of Victim 1 that “[the respondent] would have Victim 2 and Victim 3 give him ‘hand jobs' ․ would tell them they weren't doing it right and grab [Victim 1] to have her give him the hand job.   Victim 1 said Victim 2 and Victim 3 could ‘only squeeze so hard, they're little girls.’   Victim 1 said when [the respondent] did have Victim 2 and Victim 3 touch him, he would have their hand on his penis and then have his hand over theirs.   Victim 1 said [the respondent] would have Victim 2 and Victim 3 do this ‘a lot, a lot, a lot.’   “ Paragraph thirteen of the affidavit in –8429 repeats this report, which is also similar to the conduct reported in paragraph five of the arrest warrant affidavit in –8452, and which is the basis for two counts of that information.   None of the affidavits provide much basis for dating this conduct, other than the statement that Victims 2 and 3 were then “little girls.”

Paragraph seven of the arrest warrant application in –8429 further alleges that Victim 1 reported that the respondent had performed oral sex on her and “made her touch him” while he had an erection.  “Victim 1 explained that [the respondent] took her hand, held it, and told her what to do.   As Victim 1 described how [the respondent] told her what to do, she took her right hand (positioned as if it was holding a cup) and moved it up and down.   Victim 1 said [the respondent] did ejaculate.”   According to Victim 1, this incident happened when she was in sixth grade, between 2005 and 2006.   This conduct is therefore most likely the basis for the first and second counts of that information charging sexual assault in the first degree and risk of injury to a minor on or about September 1, 2005.   All the other delinquent offenses charged in –8429 are alleged to have occurred on or about January 22, 2007, the same time frame alleged in counts two and three of –8493.   Thus, the arrest warrant affidavits in both informations refer to what appears to be the same conduct on the same dates.   As requested by the respondent, the court orders the state to file a bill of particulars or long-form information specifying the particular conduct alleged in this petition.   Such a document may, or may not, resolve any issues regarding multiplicity, depending on whether similar pleadings are also filed in the now-transferred –8429 and in –8452.

B

The arrest warrant application in –8493 also accuses the respondent of risk of injury and sexual assault in the fourth degree committed on or about March 27, 2005.   These charges probably relate to conduct alleged in paragraph seven of the affidavit, which recounts Victim 2's statement that on Easter, she was holding her cousin, who was 9 months to a year old and is identified in the affidavit as “Victim 4” while in the front yard on a picnic blanket with the respondent.   According to the affidavit, Victim 2 gave two reports as to what happened.   In an interview in January 2013, she said that the baby's “foot touched her ‘crotch’ and [the respondent] said ‘Oh look where his foot is' and pressed his [ (the respondent's) ] hand down onto her (Victim 2's) ‘crotch.’   “ Two months later, when re-interviewed, “Victim 2 said she was holding Victim 4 and that [the respondent] pushed Victim 4's foot down her on private parts and was like ‘Oh, look where his foot is.’  “ Victim 2's mother has told the police that “something had happened in relation to a photograph she saw from Easter 2005.”

C

The court now turns to the respondent's argument that there are no allegations of direct sexual contact with intimate parts between the respondent and either of the alleged victims for the offenses alleged to have occurred on January 22, 2007, and that there are no allegations of what the respondent did to make the alleged victims engage in conduct.   The respondent bases his argument on the grounds that there is no information that the respondent and Victims 2 and 3 were not wearing clothing “when he was allegedly on top of Victim 3” or “what the alleged suspect did that ‘made’ the victims engage in conduct.”   Yet the affidavit does allege instances of:  (1) direct contact between the respondent's penis and Victim 2's vagina;  (2) the respondent “making [Victim 2] give him ‘hand jobs' and that ‘she did not know how many times she was forced to give [the respondent] a hand job’ “;  (3) the respondent “grab[bing] [Victim 1] to have her give him [a] hand job” and that “when [the respondent] did have Victim 2 and Victim 3 touch him, he would have their hand on his penis and then have his hand over theirs.”   All of these are instances of direct contact with intimate parts that would be sufficient for charges of risk of injury to a minor or sexual assault in the fourth degree under circumstances where done for purposes of sexual gratification or in a sexual and indecent manner.   In addition, the affidavit contains specific details as to what the respondent did to “make” the females engage in the activity.¹⁷  Moreover, as noted above, both § 53–21 and § 53a–73a proscribe both direct and indirect contact with intimate parts of a defendant or victim.   Contrary to the respondent's claim that there is no allegation as to how he “made” Victim 2 and 3 masturbate him, the affidavit states that he would place his hands over theirs on his penis.

It is true that there is no allegation of direct sexual contact with intimate parts with regard to the allegations supporting the fourth and fifth counts of the information.   The conduct alleged of the respondent—that he pressed either the baby's foot or his own hand onto Victim 2's crotch while uttering “look where his foot is”—may present a close case as to probable cause, but “[o]n a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.”  State v. Morrill, supra, 193 Conn. 611.   The respondent is alleged to have caused or exacerbated indirect contact with the crotch of Victim 2 and called attention to that contact, facts that, when viewed from such a perspective, establish probable cause that he acted in a sexual and indecent manner and for purposes of either sexual gratification or to humiliate the victim.

D

Finally, the court addresses the respondent's claim that the date used for the second and third counts is unreliable and fictitious, and that the affidavit is not sufficiently specific regarding the location of the incidents, the ages of the victims, or the “identifiable time frame as to the alleged ‘day bed’ incident.”   Rather than adopting the drastic remedy of dismissing the petition, the court orders a remedy of directing the prosecution to file an amended short-form information, a long-form information, or a bill of particulars providing a less arbitrary date, or one that comports with the law set forth in State v. Mangione, supra, 15 Conn.App. 251, and State v. Spigarola, supra, 210 Conn. 386.¹⁸  Accordingly, the motion to dismiss the charges in docket number –8493 is denied.

V

SUMMARY OF ORDERS

1. The motions to dismiss counts two and three in docket number –8490 is granted, without prejudice.

2. The motions to dismiss the charges in docket numbers –8399, –8452, and –8493 are denied.

3. The prosecution is ordered to file amended long-form informations or bills of particulars regarding the dates the delinquent acts are alleged to have occurred.

4. The prosecution is further ordered, in those amended long-form informations or bills of particulars, to identify the specific conduct that is alleged to be the basis for each of the charges.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN2. Practice Book Section 31a–3 provides:  “The child or youth may file a motion to dismiss if the motion is capable of determination without a trial of the general issue on grounds (1) to (9) of Section 41–8 of the rules of procedure in criminal matters, subject to the conditions of Section 41–10 and 41–11.”.  FN2. Practice Book Section 31a–3 provides:  “The child or youth may file a motion to dismiss if the motion is capable of determination without a trial of the general issue on grounds (1) to (9) of Section 41–8 of the rules of procedure in criminal matters, subject to the conditions of Section 41–10 and 41–11.”

FN3. Practice Book Section 41–8 provides:  “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information.  (1) Defects in the institution of the prosecution including any grand jury proceedings;  (2) Defects in the information including failure to charge an offense;  (3) Statute of limitations;  (4) Absence of jurisdiction of the court over the defendant or the subject matter;  (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;  (6) Previous prosecution barring the present prosecution;  (7) Claim that the defendant has been denied a speedy trial;  (8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid;  or (9) Any other grounds.”.  FN3. Practice Book Section 41–8 provides:  “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information.  (1) Defects in the institution of the prosecution including any grand jury proceedings;  (2) Defects in the information including failure to charge an offense;  (3) Statute of limitations;  (4) Absence of jurisdiction of the court over the defendant or the subject matter;  (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;  (6) Previous prosecution barring the present prosecution;  (7) Claim that the defendant has been denied a speedy trial;  (8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid;  or (9) Any other grounds.”

FN4. Practice Book Section 41–9 provides:  “No defendant who is charged with a crime punishable by death or life imprisonment for which probable cause has been found at a preliminary hearing pursuant to General Statutes § 54–46a or who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41–8.”.  FN4. Practice Book Section 41–9 provides:  “No defendant who is charged with a crime punishable by death or life imprisonment for which probable cause has been found at a preliminary hearing pursuant to General Statutes § 54–46a or who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41–8.”

FN5. During the relevant time periods charged in the petitions, General Statutes (Rev. to 2001) § 53–21 provided in relevant part as follows:  “(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a–65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child ․ shall be guilty of a class C felony.”   Hereinafter, unless otherwise indicated, all references to § 53–21 in this opinion are to the 2001 revision of that statute..  FN5. During the relevant time periods charged in the petitions, General Statutes (Rev. to 2001) § 53–21 provided in relevant part as follows:  “(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a–65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child ․ shall be guilty of a class C felony.”   Hereinafter, unless otherwise indicated, all references to § 53–21 in this opinion are to the 2001 revision of that statute.

FN6. During all times charged in the petitions General Statutes (Rev to 2001) § 53a–73a provided in relevant part as follows:  “(a) A person is guilty of sexual assault in the fourth degree when:  (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, ․ or (2) such person subjects another person to sexual contact without such other person's consent ․” Hereinafter, unless otherwise indicated, all references to § 53a–73a in this opinion are to the 2001 revision of that statute..  FN6. During all times charged in the petitions General Statutes (Rev to 2001) § 53a–73a provided in relevant part as follows:  “(a) A person is guilty of sexual assault in the fourth degree when:  (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, ․ or (2) such person subjects another person to sexual contact without such other person's consent ․” Hereinafter, unless otherwise indicated, all references to § 53a–73a in this opinion are to the 2001 revision of that statute.

FN7. General Statutes Section 53a–65(3) provides as follows:  “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”.  FN7. General Statutes Section 53a–65(3) provides as follows:  “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”

FN8. The first count of the information, charging aggravated sexual assault of a minor on or about January 3, 2004, in violation of General Statutes § 53a–70c, was dismissed from the bench during oral argument on the motions on the grounds that the particular statute was not yet in effect on the dates alleged for commission of the delinquent act..  FN8. The first count of the information, charging aggravated sexual assault of a minor on or about January 3, 2004, in violation of General Statutes § 53a–70c, was dismissed from the bench during oral argument on the motions on the grounds that the particular statute was not yet in effect on the dates alleged for commission of the delinquent act.

FN9. The court notes that there was no information to connect chronologically what Victim one said she witnessed to what the previous paragraph stated that Victim 3 reported..  FN9. The court notes that there was no information to connect chronologically what Victim one said she witnessed to what the previous paragraph stated that Victim 3 reported.

FN10. At oral argument on the motions, the state agreed to dismissal of the first count of the information, charging risk of injury to a minor on or about September 1, 2000, on statute of limitations grounds..  FN10. At oral argument on the motions, the state agreed to dismissal of the first count of the information, charging risk of injury to a minor on or about September 1, 2000, on statute of limitations grounds.

FN11. The respondent argues that there is no information contained in the affidavit as to how the date of “on or about June 1, 2002,” was selected for when the delinquent act was alleged to have been committed.   The court disagrees.   The affidavit states that Victim 1 claimed that this incident occurred after she moved to Scott Drive in Bloomfield, where she said she lived for less than a year when she was 8 years old.   Since paragraphs two and nineteen of the affidavit aver that the respondent is two years, eight months, and twenty-nine days older than Victim 1 and that he was born on April 25, 1991, Victim 1 was born on approximately January 23, 1994.   She would have been eight years old approximately between January 23, 2002 and January 22, 2003.   Since this incident is alleged to have happened while using a pool, it most likely occurred in the late spring, summer, or early fall of 2002, all of which are reasonably near the alleged date of “on or about June 1, 2002.”.  FN11. The respondent argues that there is no information contained in the affidavit as to how the date of “on or about June 1, 2002,” was selected for when the delinquent act was alleged to have been committed.   The court disagrees.   The affidavit states that Victim 1 claimed that this incident occurred after she moved to Scott Drive in Bloomfield, where she said she lived for less than a year when she was 8 years old.   Since paragraphs two and nineteen of the affidavit aver that the respondent is two years, eight months, and twenty-nine days older than Victim 1 and that he was born on April 25, 1991, Victim 1 was born on approximately January 23, 1994.   She would have been eight years old approximately between January 23, 2002 and January 22, 2003.   Since this incident is alleged to have happened while using a pool, it most likely occurred in the late spring, summer, or early fall of 2002, all of which are reasonably near the alleged date of “on or about June 1, 2002.”

FN12. The respondent's double jeopardy argument that risk of injury and sexual assault in the fourth degree are multiplicitous fails in light of State v. Alvaro F., 291 Conn. 1, 11–16, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S.Ct. 200, 175 L.Ed.2d 140 (2009) (holding that a conviction for violation of § 53a–21(a)(2) and § 53a–73(a)(1)(A) does not violate double jeopardy;  see also State v. Morris, 49 Conn.App. 409, 419, 716 A 2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998) (holding that “the element of ‘sexual contact,’ included within the offense of sexual assault in the fourth degree, is not necessarily equivalent to the touching of the private parts of a child in a ‘sexual and indecent manner’ prohibited by the risk of injury to a child statute.   The term ‘sexual contact’ is defined as ‘any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person ․ The mental state required for the offense of sexual assault in the fourth degree, therefore, is clearly different from that required for the offense of risk of injury to a child”);  State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct 55, 83 L.Ed.2d 6 (1984) (holding that double jeopardy claim failed because “sexual assault in the fourth degree and risk of injury [to a child] each require proof of an element not required by the other”)..  FN12. The respondent's double jeopardy argument that risk of injury and sexual assault in the fourth degree are multiplicitous fails in light of State v. Alvaro F., 291 Conn. 1, 11–16, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S.Ct. 200, 175 L.Ed.2d 140 (2009) (holding that a conviction for violation of § 53a–21(a)(2) and § 53a–73(a)(1)(A) does not violate double jeopardy;  see also State v. Morris, 49 Conn.App. 409, 419, 716 A 2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998) (holding that “the element of ‘sexual contact,’ included within the offense of sexual assault in the fourth degree, is not necessarily equivalent to the touching of the private parts of a child in a ‘sexual and indecent manner’ prohibited by the risk of injury to a child statute.   The term ‘sexual contact’ is defined as ‘any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person ․ The mental state required for the offense of sexual assault in the fourth degree, therefore, is clearly different from that required for the offense of risk of injury to a child”);  State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct 55, 83 L.Ed.2d 6 (1984) (holding that double jeopardy claim failed because “sexual assault in the fourth degree and risk of injury [to a child] each require proof of an element not required by the other”).

FN13. On the statute of limitations issue, the ordinary limitations for misdemeanors and felonies contained in § 54–193 do not apply to sexual assaults of a minor, for which the governing statute of limitations is § 54–193a.   That statute, as amended on May 23, 2002 by Public Act 02–138 and applicable to any offense committed on or after that date, allows prosecutions for sexual assault against a minor “within thirty years from the date the victim attains the age of majority or within five years from the date the victim notifies any police officer or state's attorney acting in [his] such police officer's or state's attorney's official capacity of the commission of the offense, whichever is earlier ․” The affidavit here alleges that Victim 1 first notified the police of these allegations sometime in January of this year, well within the time frame of § 54–193a..  FN13. On the statute of limitations issue, the ordinary limitations for misdemeanors and felonies contained in § 54–193 do not apply to sexual assaults of a minor, for which the governing statute of limitations is § 54–193a.   That statute, as amended on May 23, 2002 by Public Act 02–138 and applicable to any offense committed on or after that date, allows prosecutions for sexual assault against a minor “within thirty years from the date the victim attains the age of majority or within five years from the date the victim notifies any police officer or state's attorney acting in [his] such police officer's or state's attorney's official capacity of the commission of the offense, whichever is earlier ․” The affidavit here alleges that Victim 1 first notified the police of these allegations sometime in January of this year, well within the time frame of § 54–193a.

FN14. Although risk of injury is not a specific intent crime, for such a delinquent act to occur, the respondent must nonetheless act with general intent to perform the act that resulted in the injury.  “The state is not required to prove that the defendant intended to injure the child or impair her health ․ All that [is] required [is] the general intent on the part of the defendant to perform the act which resulted in the injury ․” (Citations omitted.)  State v. Reid, 85 Conn.App. 802, 810, 858 A.2d 892, cert. denied, 272 Conn. 908, 863 A.2d 702 (2004)..  FN14. Although risk of injury is not a specific intent crime, for such a delinquent act to occur, the respondent must nonetheless act with general intent to perform the act that resulted in the injury.  “The state is not required to prove that the defendant intended to injure the child or impair her health ․ All that [is] required [is] the general intent on the part of the defendant to perform the act which resulted in the injury ․” (Citations omitted.)  State v. Reid, 85 Conn.App. 802, 810, 858 A.2d 892, cert. denied, 272 Conn. 908, 863 A.2d 702 (2004).

FN15. The court notes that it is the right of the state, within the statute of limitations, to bring another juvenile prosecution based on the facts alleged herein provided that more detail is presented to establish the necessary intentionality of conduct on the respondent's part..  FN15. The court notes that it is the right of the state, within the statute of limitations, to bring another juvenile prosecution based on the facts alleged herein provided that more detail is presented to establish the necessary intentionality of conduct on the respondent's part.

FN16. The first count of the information, charging aggravated sexual assault of a minor on or about January 22, 2007, in violation of General Statutes § 53a–70c, was dismissed from the bench during oral argument on the motions on the grounds that the particular statute was not yet in effect on the dates alleged for commission of the delinquent act..  FN16. The first count of the information, charging aggravated sexual assault of a minor on or about January 22, 2007, in violation of General Statutes § 53a–70c, was dismissed from the bench during oral argument on the motions on the grounds that the particular statute was not yet in effect on the dates alleged for commission of the delinquent act.

FN17. If the basis of the second and third counts were the allegation there that he would get on top of Victims 2 and 3 while under the daybed, and pull down his pants and their pants and underwear, the court agrees there is no allegation of direct or indirect sexual contact necessary for sexual assault in the second degree or § 53–21(a)(2) or the act prong of § 53–21(a)(1).   Such conduct, however, would be sufficient for the situation prong of § 53–21(a)(1) as creating a situation likely to impair their mental health or morals.   See, e.g., State v. Cutro, 37 Conn.App. 534, 536, 539–40, 657 A.2d 239 (1995) (upholding a conviction as creating a situation likely to impair the morals of a minor under § 53–21(a)(1) when a fourteen-year-old female saw a defendant shaking and rocking back and forth with his mouth open while inside his car in a parking lot shopping mall parked three cars from hers).   The victim in Cutro did not observe the defendant's genitals or know that he was masturbating, but such conduct was held to likely to impair her morals despite that lack of knowledge as to what precisely he was doing:  “[t]he gist of General Statutes § 53–21 is not conduct which results in the actual impairment of morals ․ Rather, the gist is conduct which is likely to impair the morals of a child under the age of sixteen.”  (Citations omitted, emphasis omitted.)  Id., 542.   Any issues as to whether there is conduct sufficient to charge § 53a–73a may be addressed after a long-form information or bill of particulars has been filed..  FN17. If the basis of the second and third counts were the allegation there that he would get on top of Victims 2 and 3 while under the daybed, and pull down his pants and their pants and underwear, the court agrees there is no allegation of direct or indirect sexual contact necessary for sexual assault in the second degree or § 53–21(a)(2) or the act prong of § 53–21(a)(1).   Such conduct, however, would be sufficient for the situation prong of § 53–21(a)(1) as creating a situation likely to impair their mental health or morals.   See, e.g., State v. Cutro, 37 Conn.App. 534, 536, 539–40, 657 A.2d 239 (1995) (upholding a conviction as creating a situation likely to impair the morals of a minor under § 53–21(a)(1) when a fourteen-year-old female saw a defendant shaking and rocking back and forth with his mouth open while inside his car in a parking lot shopping mall parked three cars from hers).   The victim in Cutro did not observe the defendant's genitals or know that he was masturbating, but such conduct was held to likely to impair her morals despite that lack of knowledge as to what precisely he was doing:  “[t]he gist of General Statutes § 53–21 is not conduct which results in the actual impairment of morals ․ Rather, the gist is conduct which is likely to impair the morals of a child under the age of sixteen.”  (Citations omitted, emphasis omitted.)  Id., 542.   Any issues as to whether there is conduct sufficient to charge § 53a–73a may be addressed after a long-form information or bill of particulars has been filed.

FN18. By so ordering, the court does not mean to imply that the state must provide an exact date or more information than the state possesses or, in the exercise of reasonable due diligence, is able to obtain.*Editor's Note:  Upon receipt of this Memorandum Page 6 is missing and therefore not included..  FN18. By so ordering, the court does not mean to imply that the state must provide an exact date or more information than the state possesses or, in the exercise of reasonable due diligence, is able to obtain.*Editor's Note:  Upon receipt of this Memorandum Page 6 is missing and therefore not included.

Frazzini, Stephen F., J.