State v. Lori T.

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STATE OF CONNECTICUT v. LORI T.*
(AC 40384)
Prescott, Bright and Devlin, Js.

Syllabus

Pursuant to statute (§ 53a-98 (a) (3)), a person is guilty of custodial interfer-
ence in the second degree when, knowing that she has no right to do
so, she ‘‘holds, keeps or otherwise refuses to return a child . . . to such
child’s lawful custodian after a request by such custodian for the return
of such child.’’
Convicted, after a jury trial, of three counts of the crime of custodial interfer-
ence in the second degree, the defendant appealed to this court. The
defendant’s children were at her home in Glastonbury for purposes of
visitation over a holiday weekend. The defendant’s former husband, F,
who is the children’s father, had sole physical and legal custody of the
children, but they wanted to live with the defendant and not with F.
When F arrived to pick up the children in accordance with the visitation
schedule, the defendant told F that she was not sending the children
out to him because they did not want to come out and that she was
going to do what the children wanted to do. F contacted N, a Norwalk
police officer and the children’s school resource officer, and told him
about the children’s refusal to return to his home in Norwalk. A few
days later, N contacted the defendant by telephone and asked her why
the children were not returned to F, and she told N that they did not
want to come out to F and that she would not make them go with him.
N then warned the defendant that she could be in trouble if she did not
return the children to school. When the children were still not in school
approximately one week later, N followed up with the defendant, who
said that she would not return the children to school. Thereafter, N
sought an arrest warrant for the defendant. On appeal, the defendant
claimed that § 53a-98 (a) (3) was unconstitutionally vague as applied to
her and that there was insufficient evidence to support her convic-
tion. Held:
1. The defendant could not prevail on her unpreserved claim that § 53a-98
(a) (3) was unconstitutionally vague as applied to her, the defendant
having failed to demonstrate the existence of a constitutional violation,
and, therefore, her claim failed under the third prong of the test set
forth in State v. Golding (213 Conn. 233):
a. The defendant’s claim that § 53a-98 (a) (3) was unconstitutionally
vague as applied to her because the phrase ‘‘refuses to return’’ was not
defined in the statute and its meaning was not otherwise sufficiently
clear or definite to provide notice that her inaction of not forcing the
children to go with F could expose her to criminal liability was unavail-
ing; the language of the statute provided clear notice to the defendant
that the core meaning of the phrase ‘‘refuses to return,’’ which could
be ascertained from common dictionary definitions, encompassed the
behavior of a person who either affirmatively declines to return a child
to his lawful custodian or declines to take any affirmative steps to
do so upon the lawful custodian’s request, and a person of ordinary
intelligence in the defendant’s circumstances would have understood
that her abdication of any parental responsibility to return the children
to F violated the core meaning of the statute.
b. The defendant failed to demonstrate that she fell victim to arbitrary
and discriminatory enforcement of § 53a-98 (a) (3); although the defen-
dant claimed that the statute is subject to arbitrary enforcement due to
its vagueness and that it, therefore, impermissibly delegates the resolu-
tion of the definition of the phrase ‘‘refuses to return’’ to police officers,
judges and juries on an ad hoc basis, it was unnecessary to address the
particular enforcement of the statute in this case, this court having
concluded that § 53a-98 (a) (3) provided sufficient guidance as to what
conduct is prohibited and that it has a clear core meaning within which
the defendant’s conduct fell.
2. The evidence was sufficient to sustain the defendant’s conviction of three
counts of custodial interference in the second degree; the jury reasonably
could have inferred from the evidence presented at trial that the defen-
dant had the ability to take some action to return the children to F but
that she refused to do so, F and N having testified that the defendant
stated that she would not make the children go with F and that she was
going to do what the children wanted, and the defendant having testified
that she was going to support the children’s decision not to go with F
and that she was not going to make the decision for them, even though,
as their mother, she had a certain amount of power do so.
Argued September 13, 2019—officially released June 2, 2020

Procedural History

Substitute information charging the defendant with
three counts of the crime of custodial interference in
the second degree, brought to the Superior Court in
the judicial district of Stamford-Norwalk, geographical
area number twenty, and tried to the jury before Her-
nandez, J.; verdict and judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Emily G. Sexton, assigned counsel, for the appellant
(defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and Justina Moore, assistant state’s
attorney, for the appellee (state).
Opinion

BRIGHT, J. The defendant, Lori T., appeals from the
judgment of conviction, rendered following a jury trial,
of three counts of custodial interference in the second
degree in violation of General Statutes § 53a-98 (a) (3).
On appeal, the defendant claims that § 53a-98 (a) (3)
is unconstitutionally vague in its application to her and
that there was insufficient evidence to support her con-
viction. We disagree with both claims, and, thus, we
affirm the judgment of the trial court.
The following facts, on which the jury reasonably
could have based its verdict, and procedural history
are relevant to the issues on appeal. The defendant’s
four children, R, L, T, S,1 were at her Glastonbury home
for purposes of visitation over the Memorial Day week-
end in 2015. The defendant’s ex-husband, the children’s
father (CF), had sole physical and legal custody of the
children, and the defendant had rights of visitation. The
children, however, wanted to live with the defendant
and not with CF.
In fact, R had been staying with the defendant for
several months; after a physical incident involving CF
in January, 2015, R, with the involvement of the Norwalk
Police Department and the Department of Children and
Families, went to stay with the defendant. Over the
Memorial Day weekend, the children all decided that
they were not going to go home with CF on May 25, 2015.
During the course of the weekend, CF received a
couple of e-mails from one of the children telling him
that she did not want to return to his home and that
she wanted to stay at the defendant’s home. CF ‘‘went
to pick . . . up [the children] on Memorial Day . . .
according to [the] visitation schedule, which was 7:30
[p.m.], and [the defendant] came out of her house and
told [him] that she wasn’t sending the children out. The
children didn’t want to come out, and she was going
to do what the children wanted to do.’’ CF did not make
any attempt to telephone the children regarding their
decision to remain at the defendant’s home, and he did
not attempt to go inside the defendant’s home to speak
with the children in an effort to persuade them to return
to his home. Instead, he went directly to the Glaston-
bury Police Department.
Officer Brian Barao of the Glastonbury Police Depart-
ment went to the defendant’s Glastonbury home to con-
duct a welfare check of the children at CF’s request.
He spoke with each child and determined that they all
were okay. He did not arrest the defendant, but, rather,
he encouraged her to seek legal counsel and to pursue
these matters with the family court, which, the defen-
dant told him, she was in the process of doing.
CF then returned to Norwalk and contacted Norwalk
Police Officer Jermaine Nash, the school resource offi-
refusal to return to his home. Nash and CF knew each
other through sporting programs at the schools, and
Nash had been a visitor to CF’s home several times. A
few days after speaking with CF, Nash contacted the
defendant by telephone and asked her why the children
were not returned to CF. The defendant told Nash that
‘‘the kids didn’t want to come out to [CF].’’ Nash made
a comment about the defendant being ‘‘the adult,’’ and
he asked her why she just did not send them out to
CF. According to Nash, the defendant told him that
‘‘[s]he won’t make the children come out to him.’’
Wanting to ensure that the children returned to
school, Nash told the defendant that she could be in
trouble if she did not get the children back into school.
The defendant agreed that she would return the children
to school, and Nash agreed that he would not seek a
warrant for her arrest. When the children still were not
in school approximately one week later, Nash followed
up with the defendant, who said she would not return
the children to school. Nash then sought an arrest war-
rant on one charge of custodial interference in the sec-
ond degree, and he contacted the Department of Chil-
dren and Families.
On June 2, 2015, Nash contacted the Glastonbury
Police Department for assistance in executing the arrest
warrant; Officer David Hoover of the Glastonbury
Police Department was at the defendant’s Glastonbury
home when Nash arrived. The defendant’s aunt also
was present at the home. At some point, CF also arrived
at the scene. L testified that Nash threatened the chil-
dren ‘‘by telling [them that] if [they] didn’t go back to
[CF], he would . . . pick [them] up and forcibly take
[them] outside.’’ T described Nash as ‘‘yelling’’ and ‘‘kind
of harsh.’’ Both Hoover and Nash tried to persuade the
children to go with CF, but the children continued to
refuse. Hoover telephoned the Department of Children
and Families, and he arranged a meeting at its Manches-
ter office, where he brought the children. The children
continued to refuse to go with CF, and the defendant’s
aunt then was granted temporary custody of the chil-
dren, who later were placed with their maternal grand-
mother, with whom they resided for several months
after this incident.
The defendant later was charged with four counts of
custodial interference in the second degree, one count
for each child. Immediately before jury selection, the
state dropped the charges as to R, the child who had
been staying with the defendant for several months,
and proceeded to trial on the three remaining counts.
In a long form information dated January 9, 2017, the
state charged the defendant in count one as follows:
‘‘The [s]tate of Connecticut accuses [the defendant] of
[c]ustodial [i]nterference in the [s]econd [d]egree and
charges that at the city of Glastonbury on or about
May 25, 2015 at approximately 7:30 [p.m.] . . . the . . .
[defendant] did hold and keep for a protracted period
and otherwise refused to return a child, to wit: [L], who
was less than sixteen years old, to such child’s lawful
custodian, to wit: [CF] of Norwalk, after a request by
such custodian for the return of such child, knowing
that she had no legal right to do so, in violation of . . .
§ 53a-98 (a) (3).’’ The remaining two counts contained
similar accusations for T and S. At trial, the state’s
theory of the case focused on the defendant’s alleged
refusal to return the children to CF. Following a trial
to a jury, the defendant was convicted of all three
counts.2 This appeal followed. Additional facts will be
set forth where necessary.
I
On appeal, the defendant claims that § 53a-98 (a) (3)
is unconstitutionally vague in its application to her.3
Specifically, she argues that the statute fails to define
what it means when someone ‘‘otherwise refuses to
return a child’’ to his or her lawful custodian, and,
taking this lack of definition into consideration, it was
impossible, under the facts of this case, for the defen-
dant to know that her failure to force the children to
go with their father could amount to a refusal to return
under the statute. She argues that she did not refuse
to return the children, as that phrase reasonably is
understood but, rather, that the children voluntarily
elected not to return to their father. She contends that
the statute is void for vagueness as applied to her
because it did not give her any notice that inaction on
her part exposed her to criminal liability. Additionally,
she argues that the vagueness of the statute impermissi-
bly delegates the resolution of the definition of the
phrase ‘‘refuses to return’’ to police officers, judges and
juries on an ad hoc and subjective basis, and, therefore,
the statute is subject to arbitrary enforcement, which
clearly is demonstrated by the facts of this case. We
are not persuaded.
‘‘The determination of whether a statutory provision
is unconstitutionally vague is a question of law over
which we exercise de novo review. . . . In undertaking
such review, we are mindful that [a] statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to [her], the [defen-
dant] therefore must . . . demonstrate beyond a rea-
sonable doubt that [she] had inadequate notice of what
was prohibited or that [she was] the victim of arbitrary
and discriminatory enforcement. . . . [T]he void for
vagueness doctrine embodies two central precepts: the
right to fair warning of the effect of a governing statute
. . . and the guarantee against standardless law
enforcement. . . . If the meaning of a statute can be
fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties. . . . Moreover, an ambiguous
statute will be saved from unconstitutional vagueness if
the core meaning of the terms at issue may be elucidated
from other sources, including other statutes, published
or unpublished court opinions in this state or from other
jurisdictions, newspaper reports, television programs
or other public information . . . .
‘‘Finally, even though a statutory term that is suscepti-
ble to a number of differing interpretations may be
impermissibly vague as applied to some situations, the
term is not necessarily vague as applied in all cases;
rather, whether the statute suffers from unconstitu-
tional vagueness is a case-specific question, the resolu-
tion of which depends on the particular facts involved.
. . . Similarly, a term is not void for vagueness merely
because it is not expressly defined in the relevant statu-
tory scheme.’’ (Citations omitted; internal quotation
marks omitted.) State v. DeCiccio, 315 Conn. 79, 87–88,
105 A.3d 165 (2014).
A
Failure To Provide Notice
The defendant claims that § 53a-98 (a) (3) is unconsti-
tutionally vague as applied to her because it gave her
no notice that her inaction would meet the ‘‘refuses to
return’’ element of that statute. She contends that the
meaning of ‘‘refuses to return’’ is not statutorily defined
and its meaning is not otherwise sufficiently clear or
definite to satisfy the requirement of fair notice. The
state argues that the defendant’s ‘‘conviction was based
on her affirmative, repeated statements that she would
not send her children out to their father . . . .’’ It
argues that the ‘‘refuses to return’’ element of § 53a-98
(a) (3) clearly encompasses the defendant’s affirmative
act of refusing to send out the children to CF when he
requested their return. Accordingly, the state argues,
the statute is not vague as applied.
To resolve the defendant’s claim, we must determine
whether the process of statutory interpretation reveals
a core meaning for the phrase ‘‘refuses to return’’ such
that a person of ordinary intelligence would be able to
understand what action the statute prohibits. We first
consider the language of § 53a-98 (a), which provides
in relevant part: ‘‘A person is guilty of custodial interfer-
ence in the second degree when . . . (3) knowing that
he has no legal right to do so, he holds, keeps or other-
wise refuses to return a child who is less than sixteen
years old to such child’s lawful custodian after a request
by such custodian for the return of such child.’’ In this
case, we are concerned only with the ‘‘refuses to return’’
element of the statute. The statute contains no defini-
tion of this phrase, and, therefore, it provides no guid-
ance on the constitutional question raised by the defen-
dant’s claim. Accordingly, we must use other available
tools of statutory construction. We start with the com-
mon meaning of the words used in the statute. See, e.g.,
State v. Moulton, 310 Conn. 337, 358 n.19, 78 A.3d 55
(2013) (‘‘Under General Statutes § 1-1 (a), ‘[i]n the con-
struction of the statutes, words and phrases shall be
construed according to the commonly approved usage
of the language . . . .’ We look to the dictionary defini-
tion of a term to ascertain its commonly approved
usage.’’).
The American Heritage Dictionary of the English Lan-
guage (5th Ed. 2011) defines ‘‘refuse’’ as ‘‘[t]o decline
to do, accept, give or allow . . . .’’ Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) defines ‘‘refuse’’
as ‘‘to express oneself as unwilling to accept’’ and ‘‘to
show or express unwillingness to do or comply with
. . . .’’ Black’s Law Dictionary (9th Ed. 2009) defines
‘‘refusal’’ as ‘‘[t]he denial or rejection of something
offered or demanded . . . .’’ The term ‘‘refuse’’ also
has been discussed in our case law. In State v. Corbeil,
41 Conn. App. 7, 18–19, 674 A.2d 454, cert. granted on
other grounds, 237 Conn. 919, 676 A.2d 1374 (1996)
(appeal dismissed September 18, 1996), we considered
the defendant’s claim that General Statutes § 14-227a
(f) was unconstitutionally vague as applied to him
because the statute did not define adequately the term
‘‘refused.’’ We rejected the defendant’s claim and stated:
‘‘It is not necessary to define a word that carries an
ordinary, commonly understood meaning, is commonly
used and is defined in standard dictionaries. . . . The
word refuse is defined as to show or express unwilling-
ness to do or comply with . . . . Consequently, the
dictionary definition makes it clear that refusing to take
a breath test may be accomplished by a failure to coop-
erate as well as by express refusal.’’ (Citations omitted;
internal quotation marks omitted.) Id.; see O’Rourke v.
Commissioner of Motor Vehicles, 156 Conn. App. 516,
525, 113 A.3d 88 (2015), quoting State v. Corbeil, supra,
18–19; Bialowas v. Commissioner of Motor Vehicles,
44 Conn. App. 702, 717 n.14, 692 A.2d 834 (1997), quoting
State v. Corbeil, supra, 18–19; see also Sanseverino v.
Commissioner of Motor Vehicles, 79 Conn. App. 856,
859, 832 A.2d 80 (2003) (‘‘[r]efusal to take a breath test
can occur through conduct as well as an expressed
refusal’’ [internal quotation marks omitted]).
‘‘Return’’ is defined as ‘‘to pass back to an earlier
possessor,’’ ‘‘to restore to a former or to a normal state,’’
and ‘‘to give back to the owner.’’ Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) p. 1065. The Amer-
ican Heritage Dictionary, supra, defines ‘‘return’’ as ‘‘[t]o
revert to a former owner,’’ and ‘‘[t]o send, put, or
carry back.’’
These common definitions provide us with the assur-
ance that the legislature intended ‘‘refuses to return’’
to include, at its core, a person who has declined a
demand to send back a child to his or her lawful custo-
dian. Given this clear meaning, we need not resort to
any other aids in the interpretation of the meaning of
‘‘refuses to return’’ in § 53a-98 (a) (3). See General Stat-
utes § 1-2z.
Despite the plain and ordinary meaning of ‘‘refuses
to return,’’ the defendant argues that the statute gave
her no notice that her inaction of not forcing her chil-
dren to return to their father could expose her to crimi-
nal liability. We reject the defendant’s argument for two
reasons. First, we disagree with the premise of the
defendant’s argument that she was charged with vio-
lating § 53a-98 (a) (3) due to inaction. To the contrary,
the state’s theory was that the defendant affirmatively
refused to order her children to return to CF. It should
be clear to a person of ordinary intelligence in the
defendant’s circumstances that affirmatively refusing
to direct a child in her care to return to the custodial
parent upon a request for the return of the child would
constitute a refusal to return the child.
Second, even assuming that the defendant was prose-
cuted for inaction, we conclude that the plain meaning
of the statute provides notice that some affirmative step
to comply with the requested return of the children to
their lawful custodian is required. Otherwise, a person
could avoid the requirements of § 53a-98 (a) (3) simply
by not answering the door or not responding to a request
from the custodial parent that the child be returned.
Any person of ordinary intelligence would understand
that ignoring a request to return is the equivalent of an
affirmative refusal to return and, therefore, prohibited
by the plain language of the statute. Consistent with
this analysis, this court, in a case involving civil theft and
conversion, specifically rejected a claim that inaction
cannot constitute a refusal to return. In Rana v. Terd-
janian, 136 Conn. App. 99, 103, 46 A.3d 175, cert. denied,
305 Conn. 926, 47 A.3d 886 (2012), $5133.95 that should
have been deposited into the plaintiff’s bank account
was mistakenly deposited into the defendant’s bank
account. Despite being provided with proof beyond
doubt that the funds at issue belonged to the plaintiff,
the defendant failed to return the funds to the plaintiff.
Id., 115. The plaintiff sued the defendant claiming that
his failure to return to the plaintiff the wrongfully held
funds constituted both common-law conversion and a
violation of Connecticut’s civil theft statute, General
Statutes § 52-564. Id., 103–104. The trial court agreed
and rendered judgment for the plaintiff, and the defen-
dant appealed to this court. Id., 106–107. With respect
to the judgment on the conversion count, the defendant
argued that he could not be liable absent an ‘‘ ‘absolute
and unqualified refusal’ to return the plaintiff’s funds.’’
Id., 120. This court disagreed and concluded that the
failure to return the funds after demand by the plaintiff
‘‘evinced his unqualified refusal to comply.’’ Id., 121.
Similarly, in the present case, it would be clear to any
person in the defendant’s situation that ignoring a
demand to return the children to their lawful custodian
would constitute a refusal to return.
The evidence in this case, including from the defen-
dant, was that the defendant refused to send out the
children to their custodial parent. In particular, the evi-
dence demonstrated that CF ‘‘went to pick . . . up [the
children] on Memorial Day . . . according to [the] visi-
tation schedule . . . and [the defendant] came out of
her house and told [him] that she wasn’t sending the
children out. The children didn’t want to come out, and
she was going to do what the children wanted to do.’’
(Emphasis added.) The defendant also later told Nash
that she had not made the children go outside to CF
because they did not want to go with CF. Consistent
with this testimony, the defendant testified that she
‘‘wasn’t making decisions for [her] children’’ and that
she was ‘‘supporting whatever they needed.’’ She fur-
ther testified that the children ‘‘were convincing [her] of
the reasons why they didn’t want to go.’’ Consequently,
rather than exercising her parental authority over the
children, the defendant chose not to make the decision
whether the children had to go with CF, as required by
the court order placing custody in CF, but, instead,
decided to support whatever decision the children
made. In her words, she let her children convince her
why they should not have to go with their father. The
statements of the defendant clearly indicate that she
abdicated her parental role and made a conscious deci-
sion not to return the children to their custodial parent
and then informed others of that decision by communi-
cating that she would not make the children return
to CF.
We conclude that the defendant’s conduct falls within
the core meaning of § 53a-98 (a) (3) and that the lan-
guage of the statute provided clear notice to the defen-
dant that ‘‘refuses to return’’ encompassed the behavior
of a person who either affirmatively declines to return
a child to his or her lawful custodian or declines to
take any affirmative steps to return a child to the lawful
custodian upon that custodian’s request.
As noted previously in this opinion, the question of
whether a statute is unconstitutionally vague as applied
is a fact specific inquiry. Consequently, our conclusion
is limited to the defendant’s conduct at issue in this
case, namely, refusing to take any steps whatsoever to
require the children to return to CF. We do not address,
for example, a situation in which the noncustodial par-
ent instructs the child to return to the custodial parent
and the child refuses or what other steps a noncustodial
parent must take in similar circumstances to avoid crim-
inal liability. Whether the statute is unconstitutionally
vague as applied to such a situation will depend on
the particular facts of that situation. In this case, the
defendant does not claim that she ever instructed the
children to return to CF or that they refused to comply
with such an instruction. She simply refused to make
them go with CF because they told her that they did not
want to go. Because a person of ordinary intelligence
in the defendant’s circumstances would understand that
her abdication of any parental responsibility to return
the children to the custodial parent violated the core
meaning of the statute, her claim that § 53a-98 (a) (3)
is unconstitutionally vague as applied to her fails.
B
Arbitrary and Discriminatory Enforcement
The defendant also claims that § 53a-98 (a) (3) is
subject to arbitrary enforcement due to its vagueness
and that it, therefore, impermissibly delegates the reso-
lution of the definition of the phrase ‘‘refuses to return’’
to police officers, judges and juries on an ad hoc and
subjective basis. She contends that her claim is demon-
strated by the particular facts of this case, namely, that
the Glastonbury police declined to charge her under
the statute, that Nash initially declined to charge her
under the statute, that the prosecutor dropped the
charges as to R while proceeding with charges as to
the remaining children, and that the state and the judge
also appeared confused as to what conduct met the
elements of § 53a-98 (a) (3). The state argues that there
could not have been arbitrary and discriminatory
enforcement in this case because the plain terms of
§ 53a-98 (a), illuminated by their dictionary definitions,
provided sufficient guidance as to the behavior that is
prohibited, and the statute has a core meaning within
which the defendant’s conduct clearly fell. We agree
with the state.
The United States Supreme Court has emphasized
that ‘‘the more important aspect of the vagueness doc-
trine is not actual notice, but the other principal element
of the doctrine—the requirement that a legislature
establish minimal guidelines to govern law enforce-
ment.’’ (Internal quotation marks omitted.) Kolender v.
Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d
903 (1983). ‘‘A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for reso-
lution on an ad hoc and subjective basis, with the atten-
dant dangers of arbitrary and discriminatory applica-
tion.’’ Grayned v. Rockford, 408 U.S. 104, 108–109, 92
S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
‘‘Our Supreme Court has instructed that [a]s a practi-
cal matter, a court analyzing an as-applied vagueness
challenge may determine that the statute generally pro-
vides sufficient guidance to eliminate the threat of arbi-
trary enforcement without analyzing more specifically
whether the particular enforcement was guided by ade-
quate standards. In fact, it is the better (and perhaps
more logical) practice to determine first whether the
statute provides such general guidance, given that the
[United States] Supreme Court has indicated that the
more important aspect of the vagueness doctrine is the
requirement that a legislature establish minimal guide-
lines to govern law enforcement. . . . If a court deter-
mines that a statute provides sufficient guidelines to
eliminate generally the risk of arbitrary enforcement,
that finding concludes the inquiry.
‘‘[When] a statute provides insufficient general guid-
ance, an as-applied vagueness challenge may nonethe-
less fail if the statute’s meaning has a clear core. . . .
In that case the inquiry will involve determining whether
the conduct at issue falls so squarely in the core of
what is prohibited by the law that there is no substantial
concern about arbitrary enforcement because no rea-
sonable enforcing officer could doubt the law’s applica-
tion in the circumstances.’’ (Internal quotation marks
omitted.) State v. Daniel G., 147 Conn. App. 523, 543–44,
84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d 579
(2014). Having concluded in part I B that § 53a-98 (a)
(3) provided sufficient guidance as to what is prohibited
and that it has a clear core meaning within which the
defendant’s conduct fell, we need not address the par-
ticular enforcement of the statute in this case. See id.
The defendant has not demonstrated that § 53a-98
(a) (3) is impermissibly vague such that it deprived her
of adequate notice or that she fell victim to arbitrary and
discriminatory enforcement. Accordingly, we conclude
that the defendant’s claim that § 53a-98 (a) (3) is void
for vagueness as applied to her fails under the third
prong of Golding4 because she failed to demonstrate
the existence of a constitutional violation.
II
The defendant next claims that there is insufficient
evidence to support her conviction of three counts of
custodial interference in the second degree. She con-
tends that she did nothing to stop or prevent the chil-
dren from going with their father, and that she, in fact,
encouraged the police and others to speak with the
children and made the children readily available to
them. Specifically, she argues that ‘‘there is no evidence
whatsoever of any conduct by the defendant that
equated to holding, keeping, or refusing to return the
children to their father.’’
The state argues that ‘‘[w]hat the defendant fails to
understand is that her repeated refusal to send the
children out to their father was ‘specific action on [her]
part’ . . . that satisfied the ‘otherwise refuse to return’
element of . . . [custodial interference in the second
degree]. The evidence introduced at trial . . . showed
that the defendant three times refused to return her
minor children to their father. First, she told [CF] that
she wasn’t sending [the] children out because they
didn’t want to go with him. . . . She then told Nash
on two different occasions that she would not ask the
children to go with their father, even after Nash advised
her that she could face criminal charges. . . . On the
basis of these affirmative actions, the jury could have
found beyond a reasonable doubt that the defendant
refused to return her children to [CF].’’5 Although the
evidence in this case is far from overwhelming, we
conclude that it is sufficient to sustain the defen-
dant’s conviction.
We begin by setting forth the applicable standard of
review. ‘‘In [a defendant’s] challenge to the sufficiency
of the evidence . . . [w]hether we review the findings
of a trial court or the verdict of a jury, our underlying
task is the same. . . . We first review the evidence
presented at trial, construing it in the light most favor-
able to sustaining the facts expressly found by the trial
court or impliedly found by the jury. We then decide
whether, upon the facts thus established and the infer-
ences reasonably drawn therefrom, the trial court or
the jury could reasonably have concluded that the
cumulative effect of the evidence established the defen-
dant’s guilt beyond a reasonable doubt. . . .
‘‘In evaluating evidence that could yield contrary
inferences, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier [of fact] may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . As we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier [of fact], would have resulted
in an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [trier of fact’s] verdict of guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962
(2012). ‘‘[A] defendant is entitled to a judgment of
acquittal and retrial is barred if an appellate court deter-
mines that the evidence is insufficient to support the
conviction.’’ State v. Padua, 273 Conn. 138, 178, 869
A.2d 192 (2005).
We begin our analysis of this claim with an overview
of the language of § 53a-98 (a), which provides in rele-
vant part: ‘‘A person is guilty of custodial interference
in the second degree when . . . (3) knowing that he
has no legal right to do so, he holds, keeps or otherwise
refuses to return a child who is less than sixteen years
old to such child’s lawful custodian after a request by
such custodian for the return of such child.’’ (Empha-
sis added.)
Determining the required elements of a particular
statute presents a question of statutory construction
over which we exercise plenary review. See, e.g., State
v. Drupals, supra, 306 Conn. 159. ‘‘[W]hen the statute
being construed is a criminal statute, it must be con-
strued strictly against the state and in favor of the
accused. . . . [C]riminal statutes [thus] are not to be
read more broadly than their language plainly requires
and ambiguities are ordinarily to be resolved in favor
of the defendant. . . . Rather, penal statutes are to be
construed strictly and not extended by implication to
create liability which no language of the act purports
to create. . . . Further, if, after interpreting a penal
provision, there remains any ambiguity regarding the
legislature’s intent, the rule of lenity applies. It is a
fundamental tenet of our law to resolve doubts in the
enforcement of a [P]enal [C]ode against the imposition
of a harsher punishment.’’ (Citations omitted; internal
quotation marks omitted.) Id., 160.
To establish that the defendant was guilty of three
counts of custodial interference in the second degree
pursuant to § 53a-98 (a) (3), the state, in this instance,
needed to prove beyond a reasonable doubt that, on
May 25, 2015, the defendant (1) held, kept, or otherwise
refused to return the children, L, T, and S, to their
lawful custodian, CF, (2) that L, T, and S each were
under the age of sixteen, (3) that CF had requested the
return of each child, and (4) that the defendant knew
she had no legal right to refuse to return L, T, and S
to CF.6 The parties agree that the only element at issue
in this case is the otherwise refuses to return element.
The defendant contends that the state failed to prove
beyond a reasonable doubt that she ‘‘otherwise
refuse[d] to return’’ the children to CF because the state
provided no evidence that she had anything to do with
the children’s refusal to go with him. She also argues
that ‘‘there is not a scintilla of evidence to suggest that
[she] in any way restricted her children’s access to their
father, prevented their return to him, or actively refused
to allow [him] to assert his custody over their children.’’
In support of her argument, she points to the fact that
it is uncontested that neither Nash, members of the
Glastonbury Police Department, nor the Department of
Children and Families could get the children to go with
CF because the children refused to go. The state does
not contest any of these facts but, instead, argues that
it satisfied the ‘‘otherwise refuses to return’’ element
of § 53a-98 (a) (3) through the testimony of CF and
Nash, both of whom stated that the defendant told them
that she ‘‘was not sending the children out’’ to CF. The
specific question we must answer in this case is whether
the defendant’s statements that she ‘‘was not sending
the children out’’ are enough to satisfy the element of
‘‘otherwise refuses to return.’’ We conclude that they
are sufficient.
At trial, CF testified that he ‘‘went to pick . . . up
[the children] on Memorial Day . . . according to [the]
visitation schedule . . . and [the defendant] came out
of her house and told [him] that she wasn’t sending
the children out. The children didn’t want to come out,
and she was going to do what the children wanted to
do.’’ (Emphasis added.) The defendant also later told
Nash that she had not made the children go outside to
CF because they did not want to go with him. Consistent
with this testimony, the defendant testified that she
‘‘wasn’t making decisions for [her] children’’ and that
she was ‘‘supporting whatever they needed.’’ She fur-
ther testified that the children ‘‘were convincing [her]
of the reasons why they didn’t want to go.’’ From these
statements the jury reasonably could have inferred that,
although the defendant had the ability to compel her
children to go with their father, she refused to take any
steps to comply with the court’s custody and visitation
orders by returning the children to him upon his request.
Having thoroughly reviewed the entirety of the tran-
scripts in this case, we are aware that the defendant
testified in relevant part that when CF arrived to pick
up the children on May 25, 2015, the children refused
to go with him and that she in no way prevented them
from going. She stated that she made the children
readily accessible to the police and to others, but the
children continued to refuse to go with CF. She also
testified that she believed that forcing the children to
go with their father ‘‘was not an option’’ because she
did not want to hurt them physically, by attempting
force.7 She stated that, ‘‘as a mom, you have a certain
amount of power to convince your children to do
things,’’ and so she essentially urged them to go, but
‘‘they just kept giving [her] reasons why they didn’t
want to go. And it just became to the point where [she]
felt that [she] had an obligation to let their voices be
heard, to let them talk to some people. [She] didn’t
refuse to let them go. They refused to go.’’ She also
stated that she did not believe that any amount of coer-
cion would work. She opined that the children had
planned this together, and she recognized that they
were not ‘‘kids that [she] could pick up and buckle into
their car seat[s] and make them go.’’ She also explained
that she was hesitant about the use of physical force
because of a previous physical altercation that CF had
with R and because of the involvement of the police
and the Department of Children and Families. The
defendant further stated that CF could have spoken
with the children to try to resolve the matter, but he
chose not to.
Other evidence before the jury showed that R had
been living with the defendant since January, 2015, that
all of the children had agreed together that they were
going to refuse to go with CF, that one of the children
e-mailed CF a couple of times telling him she did not
want to return to his home, and that the children all
refused to go with him when he arrived to pick them
up on May 25, 2015. When the state asked L what
prompted the children to make this decision, she
responded that they had ‘‘been wanting to not go for a
while, so actually [they] just decided not to go with
him.’’ Other witnesses, including Nash, members of the
Glastonbury Police Department, and the Department
of Children and Families also admittedly could not per-
suade the children to go with CF because the children
absolutely refused. CF also did not persuade the chil-
dren to return home with him.
Nevertheless, our law is quite clear: ‘‘[E]vidence is
not insufficient . . . because it is conflicting or incon-
sistent . . . . It is the [jury’s] exclusive province to
weigh the conflicting evidence and to determine the
credibility of witnesses . . . . The [jury] can . . .
decide what—all, none, or some—of a witness’ testi-
mony to accept or reject.’’ (Internal quotation marks
omitted.) State v. Young, 174 Conn. App. 760, 766, 166
A.3d 704, cert. denied, 327 Conn. 976, 174 A.3d 195
(2017).
In this case, both CF and Nash testified that the defen-
dant stated to them that she would not make the chil-
dren go with CF and that she was going to do what the
children wanted. The defendant similarly testified that
she was going to support the children’s decision and
was not going to make the decision for them. Clearly,
such statements indicate that the defendant had the
ability to take some action to return the children to CF
but that she refused to do so. The defendant, herself,
testified that, as a mom, she had a certain amount of
power to convince her children to do things but that
she decided to ‘‘let their voices be heard . . . .’’ We
conclude that this evidence is sufficient to support her
conviction of three counts of custodial interference in
the second degree.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with and our policy of protecting the privacy interests
of minor children, we decline to identify the children or others through whom
the children’s identities may be ascertained. See General Statutes § 54–86e.
1
On May 25, 2015, R was thirteen years old, L and T were eleven years
old, and S was nine years old.
2
The defendant filed at least one motion to dismiss, a motion for a judg-
ment of acquittal, and a motion for judgment notwithstanding the verdict.
3
The defendant requests review of this claim pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). ‘‘To enable us to review a claim
that a statute is vague as applied, the record must . . . reflect the conduct
that formed the basis of the defendant’s conviction.’’ State v. Indrisano,
228 Conn. 795, 800, 640 A.2d 986 (1994). We conclude that the record in
this case is adequate to enable our review.
4
See footnote 3 of this opinion.
5
The state points specifically to two pages of the transcripts in support
of its argument. The first page is Nash’s testimony that the first time he
contacted the defendant by telephone after the children had refused to
return home with CF, the defendant told him that ‘‘the kids didn’t want to
come out to [CF] . . . [and that] she won’t make the children come out to
him.’’ The second page is Nash’s testimony that he contacted the defendant
one week after she had promised to return the children to school, and she
told him she would not return them.
6
The state specifically alleged in its amended long form information that
the defendant ‘‘did hold and keep for a protracted period and otherwise
refused to return’’ L, T, and S to CF. Although the state charged the defendant
in the conjunctive, it concedes that she did not hold or keep the children
from CF, but only that she otherwise refused to return them.
7
The state concedes that physical force is not required to comply with
the statute.