State v. Chance

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STATE OF CONNECTICUT v. NOEL CHANCE
(AC 34393)
Gruendel, Lavine and Beach, Js.
Argued September 12, 2013—officially released January 21, 2014

(Appeal from Superior Court, judicial district of
Litchfield, Marano, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, was David Shepack, state’s attor-
ney, for the appellee (state).
Opinion

BEACH, J. The defendant, Noel Chance, appeals from
the judgment of conviction, rendered after a jury trial, of
kidnapping in the second degree in violation of General
Statutes § 53a-94, and attempt to commit kidnapping in
the second degree in violation of General Statutes
§§ 53a-49 and 53a-94.1 On appeal, the defendant claims
that: (1) there was insufficient evidence for him to be
convicted of kidnapping in the second degree and
attempted kidnapping in the second degree; (2) any
distinction between kidnapping in the second degree,
§ 53a-94 (a), and unlawful restraint in the first degree,
General Statutes § 53a-95 (a), is unconstitutionally
vague as applied to him in this case; (3) his conviction
and sentences for both kidnapping and attempted kid-
napping, which were based on the same incident, violate
his right against double jeopardy; and (4) the trial court
abused its discretion in ordering him to register as a sex
offender upon release from imprisonment. We affirm in
part and reverse in part the judgment of the trial court.
The jury reasonably could have found the following
facts. From the spring of 2006 through the summer of
2007, the defendant regularly drove around rural areas
of Litchfield County in his pickup truck with his black
Labrador retrievers and followed female joggers. Four
women testified about events that occurred prior to the
incident involving the victim in this case. They identified
the defendant’s silver pickup truck, which sported an
oval black Labrador retriever silhouette sticker on the
rear window, as the truck that followed them. These
women testified at trial that the defendant repeatedly
drove past them without acknowledging them, as if he
was watching them, as many as ten to twelve times
during any one individual run.
One of the women, for example, a forty-three year
old schoolteacher, reported the defendant’s behavior
to a state police trooper who worked in her school. The
trooper advised her to note the license plate number of
the defendant’s vehicle. Later, when getting into her
car after a jog, she saw the defendant’s truck and was
able to get close enough to make out, and to record,
the license plate number. After recording the license
plate number, she continued driving. At the next stop
sign, she looked up and saw that the defendant’s truck
had circled around her and appeared behind her in
her rearview mirror. ‘‘[F]rightened,’’ she drove to the
Litchfield courthouse. Shortly thereafter, she stopped
running in the area and provided the state trooper who
worked at her school with the defendant’s license plate
number.2After receiving complaints, police officers
talked to the defendant on three separate occasions
and warned him that his conduct was alarming female
joggers. On March 30, 2007, after receiving one witness’
complaint and determining that the license plate num-
ber the witness provided was registered to the defen-
dant, Troopers Jason Uliano and Cono D’Elia contacted
the defendant. When the troopers informed the defen-
dant that his actions were alarming female joggers, the
defendant indicated that he understood and said that
‘‘he would drive somewhere else, he wouldn’t do that
anymore.’’ The defendant later provided a written state-
ment to Trooper Samantha McCord in which he
explained that he occasionally drove around Litchfield
with his dogs and may have driven on the same roads
repeatedly while drinking his coffee, but that he did
not intend to offend anyone.
On April 27, 2007, McCord again visited the defendant
and confronted him with information she uncovered
that was inconsistent with information he had pre-
viously provided about his employment status. When
confronted, the defendant acknowledged that he was
out of work and stated that he had left some things out
of his initial statement. The defendant then admitted
that he was driving in the area described by the witness
in her complaint—stating that he had observed a
‘‘pretty’’ brunette and that ‘‘he had been driving past to
check out the pretty brunette.’’ McCord warned the
defendant that his conduct was alarming female joggers
in the area and that he should cease driving in the area.
The defendant appeared to understand McCord’s
warning.
On August 11, 2007, the five foot tall, ninety pound,
fourteen year old victim in this case was jogging on a
secluded road in Litchfield.3 The defendant, who was
driving in his truck with his dog, started following the
victim. The defendant slowed down and asked her if
she wanted a ride. When she refused, the defendant
stopped his truck on the side of the road, exited his
truck, and chased her. The defendant grabbed her by
her ponytail causing her to fall face down on the side
of the road. The defendant then engaged in a struggle
with the victim that, according to testimony, lasted
approximately five minutes. The defendant wrapped his
arms around her, touching her breasts, and tried to
pick her up. The victim fought back and screamed. The
defendant covered her mouth to suppress her screams,
told her to shut up, and attempted to pick her up. The
victim began ‘‘heaving,’’ unable to catch her breath. The
defendant released the victim, backed away, and asked
her if she was okay. The victim responded, ‘‘just leave,’’
and, ‘‘please leave.’’ When the defendant turned and
walked toward his truck, the victim ran into a wooded
area and hid. The victim attempted to call her mother
from her cell phone, but was unable to reach her. She
then called 911. State troopers arrived at the scene and
aided the victim.
The state charged the defendant in a six count infor-
mation as follows: in count one, kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(A); in count two, kidnapping in the second degree in
violation of § 53a-94; in count three, attempted kidnap-
ping in the second degree in violation of §§ 53a-94 and
53a-49 (a) (2); in count four, unlawful restraint in the
first degree in violation of § 53a-95; and in counts five
and six, risk of injury to a child in violation of § 53-21 (a)
(1) and (2), respectively. The jury found the defendant
guilty of kidnapping in the second degree, attempted
kidnapping in the second degree, unlawful restraint in
the first degree, and risk of injury to a child in violation
of § 53-21 (a) (1). The trial court merged the defendant’s
conviction on count three, attempted kidnapping in the
second degree, with his conviction on count two, kid-
napping in the second degree. On October 17, 2008, the
court imposed a total effective sentence of twenty years
of incarceration, execution suspended after eight and
one-half years, followed by five years of probation with
special conditions. The court additionally ordered the
defendant to register as a sex offender for a period of
ten years following his release. The defendant unsuc-
cessfully moved for a new trial. After restoration of the
defendant’s appellate rights through a habeas corpus
proceeding, this appeal followed.4 Additional facts will
be set forth as necessary.
I
The defendant first claims that the state failed to
introduce sufficient evidence to prove kidnapping in
the second degree and attempted kidnapping in the
second degree beyond a reasonable doubt.5 Specifically,
the defendant claims that the state failed to prove
beyond a reasonable doubt that he restrained or
attempted to restrain the victim with the intent to pre-
vent her liberation. The defendant argues that on the
basis of State v. Salamon, 287 Conn. 509, 949 A.2d 1092
(2008), insufficient evidence existed from which the
jury reasonably could conclude that he intended to pre-
vent the victim’s liberation for a longer period of time
or to a greater degree than was necessary to commit
the uncharged crime of assault. We disagree.
We first set forth our standard of review. ‘‘In
reviewing the sufficiency of the evidence to support a
criminal conviction we apply a two-part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt.’’ (Internal
quotation marks omitted.) State v. Cook, 287 Conn. 237,
254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct.
464, 172 L. Ed. 2d 328 (2008). ‘‘While . . . every ele-
ment [must be] proven beyond a reasonable doubt in
order to find the defendant guilty of the charged
offense[s], each of the basic and inferred facts underly-
ing those conclusions need not be proved beyond a
reasonable doubt. . . . [I]n determining whether the
evidence supports a particular inference, we ask
whether that inference is so unreasonable as to be
unjustifiable. . . . [A]n inference need not be com-
pelled by the evidence; rather, the evidence need only be
reasonably susceptible of such an inference.’’ (Internal
quotation marks omitted.) State v. Ayala, 133 Conn.
App. 514, 519, 36 A.3d 274, cert. denied, 304 Conn. 913,
40 A.3d 318 (2012).
‘‘[T]he question of intent is purely a question of fact.
. . . The state of mind of one accused of a crime is
often the most significant and, at the same time, the
most elusive element of the crime charged. . . .
Because it is practically impossible to know what some-
one is thinking or intending at any given moment, absent
an outright declaration of intent, a person’s state of
mind is usually proven by circumstantial evidence. . . .
Intent may be and usually is inferred from conduct.
. . . [W]hether such an inference should be drawn is
properly a question for the jury to decide.’’ (Internal
quotation marks omitted.) State v. Sanchez, 128 Conn.
App. 1, 16, 15 A.3d 1182 (2011), aff’d, 308 Conn. 64, 60
A.3d 271 (2013). ‘‘[I]ntent may be inferred from the
events leading up to, and immediately following, the
conduct in question . . . the accused’s physical acts
and the general surrounding circumstances. . . . An
accused’s own words . . . constitute particularly com-
pelling, direct evidence of his intent.’’ (Citations omit-
ted.) State v. Winot, 294 Conn. 753, 768, 988 A.2d 188
(2010).
In count two of the information, the defendant was
charged with kidnapping in the second degree. Pursuant
to § 53a-94 (a), ‘‘[a] person is guilty of kidnapping in
the second degree when he abducts another person.’’
‘‘Abduct’’ means ‘‘to restrain a person with intent to
prevent his liberation by either (A) secreting or holding
him in a place where he is not likely to be found, or
(B) using or threatening to use physical force or intimi-
dation.’’ General Statutes § 53a-91 (2). In State v. Sala-
mon, supra, 287 Conn. 509, our Supreme Court
elaborated on the requirements for establishing kidnap-
ping: ‘‘in order to establish a kidnapping, the state is
not required to establish any minimum period of con-
finement or degree of movement. When that confine-
ment or movement is merely incidental to the
commission of another crime, however, the confine-
ment or movement must have exceeded that which
was necessary to commit the other crime.’’ (Footnote
omitted.) Id., 546. The relevant inquiry as to count two,
therefore, is whether any movement, or restriction of
movement, was accomplished with the intent to prevent
the victim’s liberation.6
In count three of the information, the defendant was
charged with attempted kidnapping in the second
degree. Section 53a-49 (a), which defines criminal
attempt, provides in relevant part: ‘‘[a] person is guilty
of an attempt to commit a crime if, acting with the kind
of mental state required for commission of the crime,
he . . . (1) [i]ntentionally engages in conduct which
could constitute the crime if attendant circumstances
were as he believes them to be; or (2) intentionally does
or omits to do anything which, under the circumstances
as he believes them to be, is an act or omission constitut-
ing a substantial step in a course of conduct planned
to culminate in his commission of the crime.’’ Section
53a-49 (b) provides in relevant part that ‘‘[c]onduct shall
not be held to constitute a substantial step . . . unless
it is strongly corroborative of the actor’s criminal pur-
pose. . . .’’
The defendant’s claim concerns the element of intent.
He argues that the state failed to prove beyond a reason-
able doubt that he had the intent to abduct the victim,
a necessary element of both attempted kidnapping and
kidnapping. The defendant maintains that the following
considerations are inconsistent with an intent to com-
mit kidnapping: ‘‘[the defendant] stepped back and
asked [the victim] if she was okay,’’ ‘‘[t]he defendant
did not possess or use any gun, knife, rope, or tape to
bind the victim or force her to go somewhere against
her will,’’ ‘‘[the defendant] did not pull her toward the
truck or carry her off by lifting her onto his shoulder,’’
‘‘the defendant did not fondle the victim, force her to
the ground, spread her legs, or unclothe her,’’ ‘‘[t]he
defendant himself was not unclothed or visibly sexually
aroused,’’ and ‘‘the defendant did not attempt to move
her toward the truck or into cover.’’ We disagree.
‘‘Our function on appeal is not to ask whether there
is a reasonable view of the evidence that would support
the defendant’s innocence of the crimes charged, but
rather we are to ask whether there is a reasonable
view of the evidence that supports the jury’s verdict of
guilty.’’ State v. Sanchez, supra, 128 Conn. App. 18.
When reviewing sufficiency claims, we construe the
evidence in the light most favorable to sustaining the
verdict. Id. ‘‘We do not sit as a [seventh] juror who may
cast a vote against the verdict based upon our feeling
that some doubt of guilt is shown by the cold printed
record. . . . This court cannot substitute its own judg-
ment for that of the jury if there is sufficient evidence
to support the jury’s verdict. . . . [T]he relevant ques-
tion is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the
crime beyond a reasonable doubt.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) State v. Nichol-
son, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied,
261 Conn. 941, 808 A.2d 1134 (2002).
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that the state intro-
duced sufficient evidence from which the jury reason-
ably could have found that the defendant had the intent
to prevent the victim’s liberation and that the defen-
dant’s actions can be construed to corroborate an intent
to prevent the victim’s liberation, i.e., commit a kidnap-
ping. The evidence reveals the following: On August 11,
2007, the five foot tall, ninety pound, fourteen year old
victim was jogging in Litchfield. Following her usual
jogging route, the victim turned off a main road and
turned onto a dirt road. As she jogged down the dirt
road, the defendant passed her in his truck three or
four times. Feeling ‘‘uneasy,’’ the victim altered her
route by turning off the dirt road and running a loop
through a residential neighborhood. About twenty
minutes later, the victim returned to the dirt road. As
she jogged down the dirt road toward the main road,
the victim jogged past the defendant in his pickup truck,
which was stopped at a stop sign. The victim continued
jogging and the defendant passed her in his truck. The
defendant then drove up behind her, rolled down his
window, and asked her if she ‘‘wanted to have a ride’’
or to ‘‘get in the car.’’ The victim declined. The defendant
again told the victim, ‘‘you can get in the car.’’ The
victim politely declined a second time and kept jogging.
The defendant then stopped his truck and left it idling.
He got out and approached the victim. The victim
‘‘sprinted toward the other side of the road’’ and ‘‘started
screaming.’’ The defendant ran after the victim and
grabbed her by her ponytail, causing her to trip and fall
face down on the side of the road. The defendant then
put both of his arms around the victim—one arm touch-
ing her stomach and the other arm touching her
breasts—and tried to pick her up. The victim screamed
and fought back. The defendant picked her up, but she
was able to free herself and to throw herself back onto
the ground. The defendant tried several times to pick
up the victim but she continued to fight back and to
scream.
The defendant then ‘‘covered [the victim’s] mouth
with his hand’’ and ‘‘pushed it down hard’’ and told her
to ‘‘shut up.’’ The victim ‘‘tried to bite him’’ and ‘‘tried
to scream louder’’ but began ‘‘choking on [her] breath.’’
The victim started ‘‘heaving’’—unable to catch her
breath and ‘‘choking every time [she] tried to breathe
in’’—as the defendant was ‘‘[s]traddled’’ over her. The
defendant then stepped back and asked the victim if
she was okay. She told the defendant to ‘‘please leave.’’
The defendant turned to walk away, and the victim ran
across the road into a wooded area and hid underneath
bushes. Unable to reach her mother on her cell phone,
the victim called 911.
Four state troopers arrived at the scene—Troopers
Theresa Freeman, Steven Caltica, Uliano, and D’Elia.
Freeman spoke with the victim, who described her
struggle with the defendant. Trooper Laura Kraus noted
that the victim’s shirt was grass-stained, her ponytail
was askew, and her hair had twigs in it. Having received
information from the victim, and having had prior deal-
ings with the defendant through other investigations,
the troopers drove to the defendant’s house. Freeman
and Uliano went to the front door of the defendant’s
house. When the defendant came to the door, Freeman
asked him, ‘‘Did you put your hands on a fifteen year
old girl?’’ The defendant answered, ‘‘I didn’t know she
was fifteen,’’ and he ‘‘dropped his head.’’ Freeman and
Uliano then placed the defendant under arrest and Uli-
ano read the defendant his Miranda rights.7
D’Elia and Caltica took the defendant to the Troop
L state police barracks. The defendant’s pickup truck
was towed to the Troop L barracks. D’Elia and Uliano
spoke to the defendant at the police barracks and asked
him if he would like to give a statement. The defendant
said, ‘‘[W]hatever she said is true,’’ and then said, ‘‘My
life is over.’’ D’Elia and Uliano then asked the defendant
if he would like to give a written statement. The defen-
dant answered, ‘‘yes,’’ and the troopers handed him the
statement form and instructed him to read the para-
graph at the top and to write what happened. The defen-
dant indicated that he understood the troopers’
directions and made a written statement.8 The troopers
asked the defendant what his intentions had been, and
he repeated several times, ‘‘I don’t know, my life is
over.’’ At one point, the defendant told the troopers, ‘‘I
have a problem.’’ Later in the day on August 11, 2007,
the victim went to the police barracks and identified
the defendant’s silver pickup truck to be the truck that
had followed her.
Contrary to the defendant’s argument that his actions
were inconsistent with an intent to prevent the victim’s
liberation, his actions of asking the victim to get in his
truck, chasing her when she refused his invitations,
pulling her ponytail and forcing her to the ground, put-
ting his hand over her mouth to suppress her screams,
and attempting to pick her up are consistent with the
elements of the charged crimes. On the basis of the
victim’s testimony, the jury reasonably could have
found that the defendant possessed the requisite intent
to prevent her liberation.9 The victim testified that the
defendant followed her during her run and asked her
several times to get in his truck. The victim also testified
that when she refused, the defendant chased her, forced
her to the ground, attempted to pick her up, and when
she fought back and screamed, put his hands over her
mouth and told her to shut up. Although the defendant
did not manage physically to place the victim in his
truck, the jury reasonably could have inferred, in light
of the defendant’s immediately prior actions and state-
ments—following the victim, asking the victim to get
in his truck, chasing her when she did not obey, wrap-
ping his arms around her and trying to pick her up, and
putting his hands over her mouth and telling her to shut
up—that he possessed the specific intent to prevent
the victim’s liberation immediately prior to and during
the struggle. There is sufficient evidence to support the
defendant’s conviction of kidnapping in the second
degree.10
II
The defendant’s second claim is that the distinction
between kidnapping in the second degree, § 53a-94 (a),
and unlawful restraint in the first degree, § 53a-95 (a),
is unconstitutionally vague as applied to him. He claims
that the difference between the intent to abduct the
victim to prevent her liberation—which is required for
kidnapping in the second degree—and the intent to
restrain the victim under circumstances that expose
such other person to a substantial risk of physical
injury—which is required for unlawful restraint in the
first degree—is ambiguous. We disagree, in part
because kidnapping in the second degree also contains
a specific intent element, which, for the purpose of his
vagueness argument, the defendant ignores.
We begin our analysis with our standard of review
and the relevant legal principles with respect to a void
for vagueness challenge. The determination of whether
a statutory provision is unconstitutionally vague is a
question of law over which we exercise de novo review.
State v. Winot, supra, 294 Conn. 758–59.
‘‘[E]veryone is presumed to know the law and . . .
ignorance of the law excuses no one from criminal
sanction.’’ State v. Knybel, 281 Conn. 707, 713, 916 A.2d
816 (2007). ‘‘A statute is not void for vagueness unless
it clearly and unequivocally is unconstitutional, making
every presumption in favor of its validity. . . . To dem-
onstrate that [a statute] is unconstitutionally vague as
applied to him, the [defendant] therefore must . . .
demonstrate beyond a reasonable doubt that [he] had
inadequate notice of what was prohibited11 or that [he
was] the victim of arbitrary and discriminatory enforce-
ment.’’12 (Emphasis added; internal quotation marks
omitted.) Rocque v. Farricielli, 269 Conn. 187, 204, 848
A.2d 1206 (2004).
A
We first address the defendant’s argument that § 53a-
94 (a) is unconstitutionally vague because he was
unable to determine whether his actions were criminal
under § 53a-94 (a) or § 53a-95 (a).
‘‘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 uncertain-
ties. . . . References to judicial opinions involving the
statute, the common law, legal dictionaries, or treatises
may be necessary to ascertain a statute’s meaning to
determine if it gives fair warning.’’13 (Internal quotation
marks omitted.) Id. ‘‘[W]here the punishment imposed
is only for an act knowingly done with the purpose
of doing that which the statute prohibits, the accused
cannot be said to suffer from lack of warning or knowl-
edge that the act which he does is a violation of law.’’
Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031,
89 L. Ed. 1495 (1945); see also Boyce Motor Lines, Inc.
v. United States, 342 U.S. 337, 342, 72 S. Ct. 329, 96 L.
Ed. 367 (1952) (‘‘requirement of the presence of culpa-
ble intent as a necessary element of the offense does
much to destroy any force in the argument that applica-
tion of [a statute] would be so unfair that it must be
held invalid’’).
‘‘Section 53a-94 (a), by its plain terms, indisputably
prohibits intentional, nonconsensual restraint of a per-
son, by means of physical force, when that restraint is
coupled with the intent to prevent that person’s libera-
tion. . . . It further is clear that the statutory definition
of ‘restraint’ encompasses both movement of a person
from one place to another and confinement of a person
in the place where a restriction of movement com-
mences.’’14 (Citation omitted.) State v. Winot, supra,
294 Conn. 761. As our Supreme Court has repeatedly
explained, the touchstone for determining whether the
movement or confinement at issue constituted kidnap-
ping was not its extensiveness, ‘‘but, rather, whether it
was accomplished with the requisite intent, that is, to
prevent the victim’s liberation.’’15 (Emphasis added.)
State v. Salamon, supra, 287 Conn. 532. Intent is a
question of fact to be determined by the jury. As dis-
cussed in part I of this opinion, after a thorough review
of the record, we conclude that sufficient evidence
exists to support the jury’s conclusion that the defen-
dant had the intent to commit kidnapping—i.e., that
the defendant’s restraint of the victim was not merely
incidental to his unlawful restraint, and uncharged
assault, of the victim. The jury reasonably could have
found that the defendant put his arms around the victim,
tried to pick her up, and put his hand over her mouth
to quiet her screams, with the purpose of restraining her
and preventing her liberation. In such circumstances,
§ 53a-94 (a) is not unconstitutionally vague as applied
to the defendant.
B
With respect to the defendant’s claim that his
restraint of the victim was relatively minor, we conclude
that the present case is not one in which the defendant’s
restraint of the victim was so minimal or limited in time
as to warrant a finding of constitutional vagueness. Our
Supreme Court has repeatedly stated that there are no
minimum time or distance requirements to establish an
act of restraint within the meaning of the kidnapping
statute. See, e.g., State v. Winot, supra, 294 Conn. 761–
65. This principle, coupled with the prohibition in § 53a-
94 of the act of restraint when it is accomplished with
the specific intent of preventing the victim’s liberation,
defeats the defendant’s claim that § 53a-94 is unconsti-
tutionally vague as applied to his actions on August 11,
2007. The defendant’s significant restraint of the victim,
coupled with evidence of intent discussed in part I of
this opinion, so clearly exceeds the de minimis restraint
posited in Salamon16 that further discussion is not war-
ranted.
C
Last, we examine the defendant’s claim that § 53a-
94 is unconstitutionally vague as applied to him because
he was the victim of arbitrary and discriminatory law
enforcement. To prevent arbitrary and discriminatory
enforcement, ‘‘laws must provide explicit standards for
those who apply them. A vague law impermissibly dele-
gates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discrimina-
tory applications.’’ (Footnote omitted; internal quota-
tion marks omitted.) Grayned v. Rockford, 408 U.S. 104,
108–109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
Here, the defendant does not argue that he was sub-
ject to arbitrary and discriminatory law enforcement
by being charged with a crime at all; rather, he argues
that he was subject to arbitrary and discriminatory
enforcement because he was overcharged with the
more serious of two virtually identical crimes. We dis-
agree. After a thorough review of the record, and in
light of our conclusion that sufficient evidence of the
defendant’s intent to commit kidnapping exists, we con-
clude that the defendant was not subject to arbitrary
and discriminatory enforcement of § 53a-94.
The defendant’s argument that there is no meaningful
distinction between § 53a-95, unlawful restraint in the
first degree, and § 53a-94, kidnapping in the second
degree, such that law enforcement’s discretion is unfet-
tered, does not withstand scrutiny. Put simply, kidnap-
ping in the second degree includes as an element the
specific intent either to secrete the victim in a place
where he will not likely be found or to use or threaten
to use physical force. Unlawful restraint in the first
degree contains no such specific intent element.
Exposing a victim to a substantial risk of injury, an
element of unlawful restraint in the first degree, is dif-
ferent from the specific intent element of kidnapping
in the second degree.17
D
Finally, we note that our disposition of this matter
‘‘is informed by the understanding that the fundamental
purpose of the void for vagueness doctrine is to ensure
fair warning in order to avoid traps for the innocent.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Winot, supra, 294 Conn. 770. The defendant
has made no plausible argument, nor can we conceive
of one, that on August 11, 2007, he acted in reliance on
the belief that his conduct was lawful, or that a person
of ordinary intelligence would have no reason to know
that he was engaging in prohibited conduct. See State
v. Ayala, supra, 133 Conn. App. 526. Rather, the defen-
dant in his brief argues only that he was charged improp-
erly, i.e., that he ought to have been charged with assault
and not kidnapping and attempted kidnapping, and not
that his conduct was not criminal.18 For purposes of
vagueness analysis, this argument is not persuasive. See
Chapman v. United States, 500 U.S. 453, 467–68, 111
S. Ct. 1919, 114 L. Ed. 2d 524 (1991) (rejecting vagueness
claim and noting that ‘‘whatever debate there is [over
the meaning of the statute] would center around the
appropriate sentence and not the criminality of the con-
duct’’); United States v. White, 882 F.2d 250, 252 (7th
Cir. 1989) (‘‘Provided that conduct is of a sort widely
known among the lay public to be criminal . . . a per-
son is not entitled to clear notice that the conduct
violates a particular criminal statute. It is enough that
he [or she] knows that what he [or she] is about to do
is probably or certainly criminal.’’ [Emphasis in origi-
nal.]). In such circumstances, a defendant does not meet
the heavy burden of showing that a statute, as applied
to the facts of his case, is unconstitutionally vague. On
the basis of the foregoing analysis, we conclude that
§ 53a-94, as applied to the defendant’s conduct, is not
unconstitutionally vague.
III
The defendant also claims that his cumulative convic-
tion of kidnapping in the second degree and attempted
kidnapping in the second degree violate the constitu-
tional prohibitions against double jeopardy. Specifi-
cally, the defendant argues that pursuant to our
Supreme Court’s recent decision in State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), the conviction of
only one of the kidnapping counts can stand and the
other must be vacated. At oral argument before this
court, the state agreed with the defendant regarding
this claim. We have reviewed the record and agree that
Polanco governs this case. We therefore remand this
case to the trial court with direction to vacate the defen-
dant’s conviction of attempted kidnapping in the sec-
ond degree.
IV
The defendant’s final claim is that the court abused
its discretion in ordering sex offender registration with
respect to his conviction of unlawful restraint in the
first degree and risk of injury to a child. Specifically,
the defendant argues that the court’s finding that he
committed such offenses ‘‘for sexual purposes’’ was
clearly erroneous; therefore, the court abused its discre-
tion in ordering sex offender registration. The defen-
dant does not challenge the court’s order that he register
as a sex offender for his conviction of kidnapping in
the second degree.
General Statutes § 54-251 provides for mandatory sex
offender registration upon conviction of certain crimi-
nal offenses. It provides in relevant part: ‘‘[a]ny person
who has been convicted . . . of a criminal offense
against a victim who is a minor . . . and is released
into the community on or after October 1, 1998, shall,
within three days following such release . . . register
such person’s name, identifying factors, criminal history
record, residence address and electronic mail address,
instant message address or other similar Internet com-
munication identifier, if any, with the Commissioner of
Emergency Services and Public Protection . . . and
shall maintain such registration for ten years . . . .’’
(Emphasis added.) General Statutes § 54-251 (a). Gen-
eral Statutes § 54-250 (2) (B) defines ‘‘[c]riminal offense
against a victim who is a minor,’’ in relevant part, as
‘‘a violation of . . . section . . . 53a-94 . . . pro-
vided the court makes a finding that, at the time of
the offense, the victim was under eighteen years of
age . . . .’’
The following additional facts are relevant to the
defendant’s claim. During the defendant’s sentencing
proceeding, with respect to the defendant’s conviction
of kidnapping in the second degree, the court found
that the victim was under the age of eighteen. The court
then stated that ‘‘by operation of law,’’ § 54-251 (a)
required that the defendant register as a sex offender
for a period of ten years. Then, with respect to the
defendant’s conviction of unlawful restraint and risk of
injury to a child, the court made a further finding ‘‘that
those offenses were committed for sexual purposes,’’
and ordered the defendant to register as a sex offender
for the maximum period of ten years pursuant to Gen-
eral Statutes § 54-254.
Because we find that there is sufficient evidence sup-
porting the defendant’s conviction of kidnapping in the
second degree; see part I of this opinion; and because
the court found that the victim was under the age of
eighteen at the time the offense was committed, § 54-
251 (a) mandates that the defendant, upon release, reg-
ister as a sex offender for a period of ten years. There-
fore, there is no basis for this court to overturn the
trial court’s order that the defendant register as a sex
offender for a period of ten years pursuant to § 54-251,
and we need not reach the issue of whether sex offender
registration was appropriate pursuant to § 54-254 with
respect to the conviction of the other two offenses. We
affirm the court’s order that the defendant register as
a sex offender for a period of ten years following his
release from imprisonment.
The judgment is reversed only as to the conviction
of attempt to commit kidnapping in the second degree
and the case is remanded with direction to vacate that
conviction; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The defendant was also convicted of unlawful restraint in the first degree
in violation of General Statutes § 53a-95 and risk of injury to a child in
violation of General Statutes § 53-21 (a) (1). He does not appeal from the
conviction of those crimes.
2
The woman resumed running in the area in March, 2007, after taking a
number of months off. She usually ran with a friend, although occasionally
she ran alone. After her first three days of jogging, she observed the defen-
dant’s truck engaged in the same type of action: passing by her several
times, as though the driver was watching her, until she got into her car and
left. On March 30, 2007, after watching the defendant’s truck pass by her
six times over a three-quarter of a mile stretch, she began to feel ‘‘very
nervous’’ and ‘‘very uncomfortable,’’ and ‘‘started sprinting back to [her] car
. . . .’’ While sprinting back to her car, she saw a friend pass by her in his
car and wave to her. She flagged him down, got in his car, and he drove
her to her car. When she got to her car, she drove to the police barracks
and filed a complaint. She gave up running in the area because of the
defendant’s behavior.
3
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
4
The habeas court granted the defendant’s habeas petition on October
14, 2011. This court granted the defendant’s motion to file a late appeal and
motion for waiver of fees.
5
The defendant also claims that even if this court should conclude that
there was sufficient evidence for the jury to have found that he intended
to abduct the victim, ‘‘the kidnapping convictions must be vacated because
the defendant voluntarily abandoned any such effort.’’ Because we find that
there was sufficient evidence to uphold the conviction of kidnapping in the
second degree, we decline to address the defendant’s argument that he
abandoned the crime of attempt to commit kidnapping in the second degree.
6
The defendant has not claimed on appeal that there was insufficient
evidence of the use of physical force.
7
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
8
The defendant’s statement reads in pertinent part: ‘‘I was driving; ask a
girl if she wanted a ride, she said no. I ran after her, she fell in the grass
screaming. She said leave me alon[e]. I left. I didn’t mean to harm her.’’
9
Even if the defendant ultimately backed off and appreciated the aberrant
nature of his behavior, there quite clearly was sufficient evidence to support
the element of intent just prior to and during the physical struggle in which,
it can be inferred, he tried to force the victim into his truck.
10
The defendant also argues that there is insufficient evidence to support
his conviction of attempted kidnapping in the second degree. Section 53a-
49 defines the elements of criminal attempt to be the necessary intent for
the completed crime and the taking of a substantial step in furtherance of
the intended completed crime. Because we find that there is sufficient
evidence of the defendant’s intent to prevent the victim’s liberation, we also
find that there is sufficient evidence to support the conviction of attempted
kidnapping in the second degree. We need not address this specific claim
further.
11
‘‘[B]ecause we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair warn-
ing.’’ (Emphasis added.) Grayned v. Rockford, 408 U.S. 104, 108, 92 S. Ct.
2294, 33 L. Ed. 2d 222 (1972). ‘‘[A] law forbidding or requiring conduct in
terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application violates due process of law.’’
Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).
12
To prevent arbitrary and discriminatory enforcement, ‘‘laws must pro-
vide explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution
on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory applications.’’ Grayned v. Rockford, 408 U.S. 104, 108–109, 92
S. Ct. 2294, 33 L. Ed. 2d 222 (1972). ‘‘[A] legislature [must] establish minimal
guidelines to govern law enforcement.’’ (Internal quotation marks omitted.)
Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).
13
‘‘The root of the vagueness doctrine is a rough idea of fairness. It is not
a principle designed to convert into a constitutional dilemma the practical
difficulties in drawing criminal statutes both general enough to take into
account a variety of human conduct and sufficiently specific to provide fair
warning that certain kinds of conduct are prohibited.’’ Colten v. Kentucky,
407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972); see also Sweetman
v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d
144 (1999) (‘‘[b]ecause perfect precision is neither possible nor required . . .
the [vagueness] doctrine does not mandate the invalidation of all imprecisely
drafted statutes’’ [internal quotation marks omitted]).
14
In State v. Salamon, supra, 287 Conn. 531, our Supreme Court reasoned,
in part, that ‘‘because the statutory definitions of the terms ‘restrain’ and
‘abduct’ contain no time or distance specifications, the offense of kidnapping
does not require proof that the victim was confined for any minimum period
of time or moved any minimum distance.’’ Id., 531–32.
15
In several instances, our Supreme Court has applied these principles
to uphold kidnapping convictions that involved confinement of the victim
for short periods of time and/or involved movement of the victim of a rather
brief distance. See, e.g., State v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906
(1991) (moving victim throughout her apartment during robbery, sexual
assault); State v. Jones, 215 Conn. 173, 182, 575 A.2d 216 (1990) (moving
victim across and off of road); State v. Vass, 191 Conn. 604, 606, 614–15,
469 A.2d 767 (1983) (moving victim from front of store to back stockroom
during sexual assault); State v. Bell, 188 Conn. 406, 409, 416, 450 A.2d
356 (1982) (confining victims in freezers for two to fifteen minutes during
robbery); State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979) (moving
victim from stairway to bedroom and detention there for fifteen minutes
during robbery); State v. Hill, 58 Conn. App. 797, 802–803, 755 A.2d 919
(moving victim down driveway and under stairwell during sexual assault),
cert. denied, 254 Conn. 936, 761 A.2d 763 (2000).
At times, however, our Supreme Court has acknowledged that there con-
ceivably could be ‘‘factual situations in which charging a defendant with
kidnapping based [on] the most miniscule [movement or duration of confine-
ment] would result in an absurd and unconscionable result . . . .’’ (Internal
quotation marks omitted.) State v. Salamon, supra, 287 Conn. 532 n.21; see
also State v. Winot, supra, 294 Conn. 764. ‘‘As our case law interpreting [the
kidnapping] statutes has evolved, however, it is apparent that any such
limitation on the reach of our kidnapping statutes is reserved for the rare
factual scenario in which the restraint is so minimal that the statute would
be unconstitutionally vague as applied to that scenario.’’ State v. Salamon,
supra, 528 n.17.
The defendant argues that the facts of this case present such a situation.
We disagree. The defendant’s restraint of the victim was coupled with strong
evidence of his intent to prevent the victim’s liberation; therefore, § 53a-94
(a), as applied to the defendant, afforded him adequate notice that his
behavior was prohibited.
16
In Salamon, our Supreme Court acknowledged that there conceivably
could be ‘‘factual situations in which charging a defendant with kidnapping
based [on] the most miniscule [movement or duration of confinement] would
result in an absurd and unconscionable result . . . .’’ (Internal quotation
marks omitted.) State v. Salamon, supra, 287 Conn. 532 n.21.
17
A slightly more subtle distinction exists between the specific intent
required to prevent liberation, required by kidnapping, and the circumstance
that restraint be accomplished in such a way as to interfere substantially
with liberty, required by unlawful restraint.
18
The defendant’s statements to state troopers that ‘‘whatever she said
is true,’’ and, ‘‘my life is over,’’ provide clear manifestations of his understand-
ing that his conduct toward the victim was criminal. See State v. Kirby, 137
Conn. App. 29, 44, 46 A.3d 1056 (‘‘[a defendant is] not entitled to clear notice
that his conduct violate[s] a particular criminal statute’’), cert. denied, 307
Conn. 908, 53 A.3d 222 (2012); State v. Winot, supra, 294 Conn. 770–71. The
defendant’s argument that § 53a-94 is unconstitutionally vague as applied
to him because he was unable to tell whether his actions violated § 53a-94
or § 53a-95 must fail because our law requires notice only that one’s actions
are criminal and does not require notice that one’s actions violate a particular
criminal statute.