State v. Russo

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STATE OF CONNECTICUT v. PHILLIP RUSSO
(AC 45314)
Prescott, Elgo and Seeley, Js.

Syllabus

Pursuant to statute (§ 53a-71 (a) (8)), a person is guilty of sexual assault in
the second degree when that person engages in sexual intercourse with
another person and, inter alia, the actor is a school employee and the
other person is a student enrolled in a school in which the actor works.
The defendant, who had been convicted, following a conditional plea of
nolo contendere, of the crime of sexual assault in the second degree,
appealed to this court, claiming that the trial court improperly denied
his motions to dismiss. The defendant was employed as an assistant
soccer coach for a girls soccer team at a local public high school. The
victim attended the same high school and was a player on the girls
soccer team. The victim, then seventeen years old, and the defendant
began a sexual relationship in November, 2018, after the end of the
soccer season, and the relationship continued through August, 2019.
From the start of their relationship until the end of the school year, the
victim remained a student at the high school but was no longer a member
of the soccer team as a result of the season ending. The high school
principal stated to the police that the defendant had resigned his position
as a coach of the girls soccer team following their meeting in May, 2019,
due to his travel associated with his employment as a pharmaceutical
representative and his recent move. The defendant was arrested and
charged, by way of a substitute information, with sexual assault in the
second degree in violation of § 53a-71 (a) (8). The defendant filed two
motions to dismiss the substitute information, both of which the court
denied. Thereafter, the defendant entered a plea of nolo contendere
that was conditioned on his right to appeal the denials of his motions
to dismiss. On the defendant’s appeal to this court, held:
1. The trial court properly denied the defendant’s first motion to dismiss
that claimed that the facts set forth in the arrest warrant affidavit were
insufficient to support a finding of probable cause that the defendant
committed the crime of sexual assault in the second degree in violation
of § 53a-71 (a) (8) because he was not a school employee under the
statutory definition: contrary to the defendant’s claim, the contents of
the arrest warrant affidavit and the additional information contained in
the state’s proffer in response to the first motion to dismiss, viewed in
the light most favorable to the state, set forth sufficient facts to show
probable cause that would warrant a person of reasonable caution to
believe that the defendant was a school employee, as defined by statute
(§ 53a-65 (13)), at the time that he had engaged in sexual intercourse
with the victim in violation of § 53a-71 (a) (8), including the defendant’s
attendance at a January, 2019 soccer banquet, his participation at fitness
drills for the high school girls soccer team in the spring of 2019, his
discussions with the head coach of the high school girls soccer team
in the spring of 2019, his attendance at a meeting in May, 2019, with
the high school administration regarding his alleged relationship with
the victim, and his oral resignation of his position as an assistant coach
for the soccer team following that meeting; moreover, the question of
whether the defendant was an employee was a factual question, and
therefore a key inquiry for the jury to consider, as well as an element
of the offense charged.
2. The defendant could not prevail on his claim that the trial court improperly
denied his second motion to dismiss that alleged that § 53a-71 (a) (8)
is unconstitutionally overbroad:
a. This court was not persuaded by the state’s argument that, because
the trial court conducted a vagueness analysis in its memorandum of
decision denying the defendant’s second motion to dismiss, rather than
addressing the overbreadth argument, and the defendant failed to make
any effort to bring this discrepancy to the trial court’s attention, the
defendant’s overbreadth claim was unreviewable: because the defendant
appealed pursuant to the statute (§ 54-94a) governing appeals from condi-
tional pleas of nolo contendere, this court was limited to a determination
of whether it was proper for the trial court to have denied the motions
to dismiss, which was the very claim raised by the defendant in his
appeal, and in making his claim concerning the denial of his second
motion to dismiss, he argued that the denial of his motion was improper
because § 53a-71 (a) (8) was unconstitutionally overbroad, the same
argument he raised in his second motion to dismiss, at the hearing on
that motion and on his conditional plea form, bringing the claim within
the parameters of § 54-94a and, thus, making it reviewable; moreover,
although the trial court failed to address the overbreadth claim in its
memorandum of decision, this court’s review of the overbreadth claim
was appropriate under the circumstances of this case in light of the level
of review this court affords to such claims and to decisions denying
motions to dismiss, including that the overbreadth claim was not a new
claim raised for the first time on appeal, the issue was fully briefed and
argued before the trial court, both parties briefed the issue in their
appellate briefs, the state conceded at the hearing before the trial court
that it had no objection to the court making a finding that its rulings
denying the motions to dismiss were dispositive of the case, and the
state suffered no prejudice in light of this court’s conclusion that the
defendant could not prevail on the merits of the claim.
b. The defendant failed to meet his burden of demonstrating that the
constitutional rights of individuals are substantially burdened in relation
to the plainly legitimate sweep of § 53a-71 (a) (8), as the state has a
legitimate interest in promoting a safe and healthy school environment
for elementary and secondary school students by prohibiting teachers
or other school employees from using a position of authority to pursue
a sexual relationship with students enrolled in the educational system
in which they are employed and misusing their access to students as a
conduit for sexual activity; moreover, although the defendant provided
a list of hypothetical scenarios in which § 53a-71 (a) (8), through its
incorporation of the definition of a school employee in § 53a-65 (13),
criminalizes conduct that he alleged would not advance the legitimate
goal of protecting students, the defendant failed to demonstrate that
§ 53a-71 (a) (8) encompasses a substantial amount of constitutionally
protected conduct, as the mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge; furthermore, there must be
a realistic danger that the statute itself will significantly compromise
recognized first amendment protections of parties not before the court
for it to be facially challenged on overbreadth grounds, the defendant
did not make any showing that there are real individuals who fall into
the hypothetical situations set forth in his second motion to dismiss or
specify whose relationships have been chilled by the allegedly overbroad
statute, the record contained no information or data concerning the
percentage of adult students who are affected by the statute in relation
to its legitimate sweep of protecting school students, the vast majority
of whom likely are not adults, and the defendant’s speculation about
the impact of the statute on those hypothetical relationships was insuffi-
cient to demonstrate its overbreadth.
Argued April 18—officially released October 3, 2023

Procedural History

Substitute information charging the defendant with
sexual assault in the second degree, brought to the
Superior Court in the judicial district of Middlesex,
where the court, Dewey, J., denied the defendant’s
motions to dismiss; thereafter, the defendant was pre-
sented to the court, Dewey, J., on a conditional plea of
nolo contendere; judgment of guilty, from which the
defendant appealed to this court. Affirmed.
Jeffrey C. Kestenband, for the appellant (defendant).
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were Michael A.
Gailor, state’s attorney, Jeffrey Doskos, former supervi-
sory assistant state’s attorney, and Kevin M. Shay, for-
mer senior assistant state’s attorney, for the appellee
(state).
Opinion

SEELEY, J. Following a conditional plea of nolo con-
tendere, made pursuant to General Statutes § 54-94a,1
the defendant, Phillip Russo, appeals from the judgment
of conviction of sexual assault in the second degree
in violation of General Statutes § 53a-71 (a) (8).2 The
defendant entered his conditional plea following the
court’s denials of his two motions to dismiss, the first
of which alleged that the facts set forth in the arrest
warrant affidavit were insufficient to sustain a charge
alleging a violation of § 53a-71 (a) (8), and the second of
which claimed that § 53a-71 (a) (8) is unconstitutionally
overbroad. In connection with his first motion to dis-
miss, the defendant specifically argued that the arrest
warrant lacked probable cause that he committed a
crime because the allegations in the arrest warrant affi-
davit did not establish that he was a ‘‘school employee’’
for purposes of § 53a-71 (a) (8). As to his second motion
to dismiss, the defendant contended that the statute
impermissibly criminalizes a range of consensual roman-
tic relationships that the state has no legitimate basis
to regulate. We are not persuaded by the defendant’s
claims and, therefore, affirm the judgment of convic-
tion.
On December 2, 2021, the state recited the following
facts prior to the trial court’s acceptance of the defen-
dant’s plea of nolo contendere. The defendant was
employed as an assistant soccer coach for a girls soccer
team at a local public high school. The victim3 attended
this high school and was a player on the girls soccer
team. In November, 2018, the victim, then seventeen
years old, babysat the defendant’s children. After the
forty year old defendant returned home, he watched
television with the victim, and the two eventually engaged
in sexual intercourse. The defendant and the victim
continued their sexual relationship for the remainder
of the school year. During this period, the victim
remained a student at the high school but was no longer
a member of the soccer team as a result of the sea-
son ending.
After a police investigation, the defendant was arrested
on October 23, 2019, and charged with sexual assault
in the second degree in violation of § 53a-71 (a) (9)
(A).4 The state subsequently charged the defendant by
substitute information with sexual assault in the second
degree in violation of § 53a-71 (a) (8). The defendant
subsequently filed two motions to dismiss the informa-
tion, both of which the court denied. Thereafter, the
defendant entered a plea of nolo contendere that was
conditioned on his right to appeal the denials of his
motions to dismiss. On February 10, 2022, the court
sentenced the defendant to a term of incarceration of
four years, execution suspended after nine months, with
a five year period of probation.5 Additional facts will
be set forth as necessary.
I
The defendant’s first claim challenges the court’s
denial of his first motion to dismiss, in which he alleged
that the facts set forth in the arrest warrant affidavit
were insufficient to support a finding of probable cause
that the defendant committed the crime of sexual
assault in the second degree in violation of § 53a-71
(a) (8). Specifically, he argues that the arrest warrant
affidavit failed to establish probable cause that he was
an employee of the high school, as that term is defined
by General Statutes § 53a-65 (13),6 at the time he
engaged in sexual intercourse with the victim and,
therefore, that his conduct did not constitute a violation
of § 53a-71 (a) (8). The state responds, inter alia, that
the arrest warrant affidavit and the proffer to the court
contain sufficient factual allegations to establish proba-
ble cause to prosecute the defendant for violating § 53a-
71 (a) (8). We agree with the state.
The following procedural history and additional facts
are necessary for the resolution of this claim. On Octo-
ber 22, 2019, the police prepared an application for an
arrest warrant on the ground that the defendant had
violated § 53a-71 (a) (9) (A). The affidavit attached to
the arrest warrant (arrest warrant affidavit) contained
the following allegations.7 The defendant began the pro-
cess of building an emotional connection with the vic-
tim when she was a sophomore and fifteen years old.
He gave her advice regarding her relationship with her
then boyfriend, as well as other matters. Their sexual
relationship began in November, 2018, after the end of
the soccer season, and continued through August, 2019.
The high school principal stated to the police that the
defendant had resigned his position as a coach of the
high school girls soccer team following their meeting
in May, 2019, due to his travel associated with his
employment as a pharmaceutical representative and his
recent move.8 The defendant spoke with the affiant at
the police department regarding his relationship with
the victim and provided a verbal statement that was
video and audio recorded, in which he stated ‘‘that he
maintained his position as the assistant girls soccer
coach at [the high school] from 2012 until 2019’’ and
admitted to having a sexual relationship with the victim.
The defendant also acknowledged that he knew the
victim was seventeen years old at the time when their
sexual relationship began. The court signed the warrant
on October 22, 2019, after concluding that there was
probable cause that the defendant had violated § 53-71
(a) (9) (A). The defendant was arrested the next day.9
On April 28, 2021, the state filed a substitute informa-
tion charging the defendant with violating § 53a-71 (a)
(8). On May 13, 2021, the defendant filed his first motion
to dismiss pursuant to Practice Book § 41-8 (2).10 Specif-
ically, the defendant challenged the allegations con-
tained in the affidavit attached to the arrest warrant,
asserting that the allegations concerned ‘‘activity which
does not violate . . . [§] 53a-71 (a) (8).’’ The defendant
argued that the allegations in the affidavit established
that his sexual relationship with the victim did not begin
until the soccer season, and the victim’s high school
soccer career, had concluded. He further argued that,
because the soccer season had ended and he no longer
was coaching the soccer team during the period of the
sexual relationship with the victim, there were no facts
to support an allegation that he was a school employee
as defined by § 53a-65 (13).
On June 9, 2021, the state filed a response to the first
motion to dismiss. It countered that ‘‘[t]he employment
relationship of the defendant during this time frame is
an essential element of the charge. In light of all the
potential evidence that the state seeks to admit, this is
not a defense that can be determined without a trial
on this issue.’’ Additionally, the state noted its intention
to present evidence regarding the defendant’s atten-
dance at a January, 2019 soccer banquet, his participa-
tion at fitness drills for the high school girls soccer
team in the spring of 2019, his discussions with the
head coach of the high school girls soccer team in the
spring of 2019, his attendance at a meeting in June,
2019, with the high school administration regarding his
alleged relationship with the victim, and his oral resig-
nation of his position as an assistant coach for the
soccer team at that meeting.
On July 14, 2021, the court held a hearing on the
defendant’s motions to dismiss. Defense counsel noted
that the prosecution initially began with the charge that
the defendant had violated § 53a-71 (a) (9), but the state
subsequently filed a substitute information alleging that
he violated § 53a-71 (a) (8). Defense counsel then
argued that the defendant’s responsibilities as a coach
concluded at the end of the soccer season, before his
alleged relationship with the victim began. Specifically,
defense counsel claimed that the defendant was paid
about one week after the end of the season, and he
then returned various equipment to the school. Defense
counsel further stated that the defendant’s primary
employment was in pharmaceutical sales and not as a
teacher in the school system. Defense counsel con-
cluded by stating that ‘‘what’s in the affidavit doesn’t
support the offense that’s being alleged under [§ 53a-
71 (a) (8)].’’
The prosecutor countered that, although the defen-
dant disputed the contention that he was a school
employee at the time of the sexual relationship with
the victim, the resolution of that issue was to be made
by the fact finder at the time of trial, rather than via a
motion to dismiss filed pursuant to Practice Book § 41-
8. Defense counsel responded that he was not claiming
a lack of sufficient evidence but, rather, that the infor-
mation itself was defective because the conduct alleged
did not fall within the parameters of § 53a-71 (a) (8).
On September 29, 2021, the court, Dewey, J., issued
a memorandum of decision denying the defendant’s
first motion to dismiss. The court stated that ‘‘[t]he
defendant in the present matter asserts that he was
not an employee of [the high school] when the sexual
relationship began because his employment terminated
at the end of the soccer season.’’ The court further
described this as a ‘‘key inquiry’’ for the consideration
of the jury. The court then discussed cases from other
jurisdictions that addressed the time frame of employ-
ment for purposes of establishing liability pursuant to
statutes similar to § 53a-71 (a) (8). Ultimately, the court
denied the defendant’s motion to dismiss, concluding:
‘‘The state will be required to establish the precise tem-
poral scope of the defendant’s employment status at
the time when the relationship commenced. In short,
the question of whether the defendant was an employee
is a factual question but it is also an element of the
offense charged.’’
On appeal, the defendant argues that § 53a-71 (a) (8)
proscribes sexual intercourse between a person pres-
ently employed at a high school and a presently enrolled
student, and the affidavit attached to the arrest warrant
contained no facts to support the allegation that the
defendant remained an employee following the conclu-
sion of the soccer season. The defendant further con-
tends that the references in the affidavit to his ‘‘resigna-
tion’’ as a coach for the high school soccer team in May
or June of 2019 merely served as his notice that he
would not act in that capacity for the upcoming season.
With respect to the defendant’s claim that the arrest
warrant affidavit does not contain sufficient facts to
sustain a charge of sexual assault in the second degree,
the state counters in its appellate brief that the defen-
dant, who had filed his first motion to dismiss pursuant
to Practice Book § 41-8 (2), should have raised this
claim pursuant to Practice Book § 41-8 (5) and General
Statutes § 54-56.11 As the state explains: ‘‘[W]hen decid-
ing a motion to dismiss under Practice Book § 41-8 (2),
a court reviews only the four corners of an information
to determine whether it conforms to Practice Book
requirements and provides adequate notice of a charge.
A court does not decide whether the facts presented
in an arrest warrant affidavit were adequate to make
out a charge specified in a subsequent substitute infor-
mation.’’ The state further contends, in the alternative,
that, ‘‘even if a court can review the adequacy of the
state’s potential proof under Practice Book § 41-8 (2),
or if this court treats the defendant’s motion as one
brought pursuant to Practice Book § 41-8 (5) and . . .
§ 54-56, a trial court is not constrained to review only
the facts alleged in an arrest warrant affidavit, absent
concession that the facts alleged in the affidavit repre-
sent the entirety of the state’s available proof [and thus]
the trial court was obliged to hear the state’s proffer
of its available evidence beyond the arrest warrant affi-
davit’s allegations. Finally . . . the state’s proffered
proof, viewed in the light most favorable to the state,
was sufficient to sustain a charge under . . . § 53a-71
(a) (8).’’ (Emphasis added.)
At oral argument before this court, the state specifi-
cally represented that it would not take issue if we were
to assume that the defendant brought this motion to
dismiss under Practice Book § 41-8 (5) and focus our
analysis on whether the facts set forth in the arrest
warrant affidavit and subsequent proffer before the
court established probable cause. We will proceed with
the state’s suggested analytical pathway, bypassing the
procedural questions regarding subdivisions (2) and (5)
of Practice Book § 41-8, and limit our consideration to
the merits of the defendant’s claim, that is, whether the
court improperly denied the motion to dismiss alleging
insufficient evidence or cause to justify the bringing
or continuing of the state’s substitute information that
charged him with violating § 53a-71 (a) (8). Ultimately,
we conclude that the court properly denied the defen-
dant’s first motion to dismiss.
We begin with our standard of review. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . [O]ur review of the
trial court’s ultimate legal conclusion and resulting
[denial] of the motion to dismiss [is] de novo. . . .
Factual findings underlying the court’s decision, how-
ever, will not be disturbed unless they are clearly erro-
neous. . . . The applicable standard of review for the
denial of a motion to dismiss, therefore, generally turns
on whether the appellant seeks to challenge the legal
conclusions of the trial court or its factual determina-
tions.’’ (Citations omitted; internal quotation marks
omitted.) State v. Bonner, 290 Conn. 468, 477–78, 964
A.2d 73 (2009); see also State v. A. B., 341 Conn. 47,
55, 266 A.3d 849 (2021); State v. Samuel M., 323 Conn.
785, 794–95, 151 A.3d 815 (2016). In the present case,
the court heard no testimony and was not required to
make any credibility determinations or factual findings
at the hearing on the motions to dismiss filed by the
defendant, and therefore the clearly erroneous standard
does not apply. See State v. Pelella, 327 Conn. 1, 9 n.9,
170 A.3d 647 (2017); State v. Taupier, 197 Conn. App.
784, 796–97, 234 A.3d 29, cert. denied, 335 Conn. 928,
235 A.3d 525 (2020), cert. denied, U.S. , 141 S.
Ct. 1383, 209 L. Ed. 2d 126 (2021).
Additionally, we note the following relevant legal
principles. Our Supreme Court has explained that,
‘‘[w]hen assessing whether the state has sufficient evi-
dence to show probable cause to support continuing
prosecution, the court must view the proffered proof,
and draw reasonable inferences from that proof, in the
light most favorable to the state. . . . The quantum of
evidence necessary to establish probable cause . . .
is less than the quantum necessary to establish proof
beyond a reasonable doubt at trial . . . . In [ruling on
the defendant’s motion to dismiss], the court [must]
determine whether the [state’s] evidence would warrant
a person of reasonable caution to believe that the
[defendant had] committed the crime.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Cyr,
291 Conn. 49, 55–56, 967 A.2d 32 (2009); see also State
v. Greene, 186 Conn. App. 534, 545–46, 200 A.3d 213
(2018) (‘‘quantum of evidence necessary to establish
probable cause exceeds mere suspicion, but is substan-
tially less than that required for conviction’’ (internal
quotation marks omitted)).
This court has explained that, ‘‘[w]here a motion to
dismiss an information against an accused is made prior
to trial, only probable cause sufficient to justify the
continued prosecution need be established. The proba-
ble cause determination is, simply, an analysis of proba-
bilities. . . . The determination is not a technical one,
but is informed by the factual and practical considera-
tions of everyday life on which reasonable and prudent
[persons], not legal technicians, act. . . . The exis-
tence of probable cause does not turn on whether the
defendant could have been convicted on the same avail-
able evidence. . . . Furthermore, we have concluded
that proof of probable cause requires less than proof
by a preponderance of the evidence. . . . To establish
probable cause, the state was not required to present
evidence as to each of the elements of the offense in
a form that would be admissible at a later trial. In State
v. Kinchen, [243 Conn. 690, 702–703, 707 A.2d 1255
(1998)], our Supreme Court found information con-
tained in a written police report sufficient to establish
probable cause to justify the continued prosecution
of a defendant.’’ (Citation omitted; internal quotation
marks omitted.) State v. Howell, 98 Conn. App. 369,
378–79, 908 A.2d 1145 (2006). Finally, we note that if
the evidence supports a finding of probable cause, then
the motion to dismiss must be denied, even if such
evidence might also support a contrary conclusion. See
State v. Pelella, supra, 327 Conn. 19; see also State v.
Taupier, supra, 197 Conn. App. 796; see generally State
v. McMillan, 51 Conn. App. 676, 686, 725 A.2d 342 (dis-
missal of information is drastic action), cert. denied,
248 Conn. 911, 732 A.2d 179 (1999).
The defendant focuses his challenge on whether the
state established probable cause that he was a ‘‘[s]chool
employee’’ as defined in § 53a-65 (13)12 at the time he
engaged in sexual intercourse with the victim. After
reviewing the contents of the arrest warrant affidavit
and the additional information set forth in the state’s
proffer, viewed in the light most favorable to the state,
we conclude that probable cause existed that would
warrant a person of reasonable caution to believe that
the defendant was a ‘‘[s]chool employee’’ at the time
that he had engaged in sexual intercourse with the
victim in violation of § 53a-71 (a) (8).
As we previously have noted, the arrest warrant affi-
davit states that, according to both the defendant and
the victim, the sexual relationship did not start until
November, 2018, after the girls soccer season had
ended. The principal of the high school told the police
that the defendant had ‘‘resigned from his job’’ as the
assistant coach of the soccer team following a meeting
in May, 2019, during which he was confronted by school
administrators about the nature of his relationship with
the victim. During an interview with the police, the
defendant stated that he ‘‘maintained his position as
the assistant girls soccer coach at [the high school]
from 2012 until 2019. The [defendant] said that he
resigned from his assistant soccer coach job because his
territory expanded for his work, he is a pharmaceutical
representative.’’
In addition to the allegations contained in the arrest
warrant affidavit, the state, in its proffer submitted in
response to the defendant’s motion to dismiss, alleged
that, after the conclusion of the soccer season in 2018
and the start of his sexual relationship with the victim,
the defendant had attended a banquet as part of his
association with the high school soccer team in January,
2019, which was paid for by the town, and that during
the spring of 2019, he had assisted at several fitness
drills for current players and had several discussions
with the head coach regarding the upcoming season.
The proffer also alleged that on June 6, 2019, the defen-
dant attended a meeting with the school’s athletic direc-
tor, the principal, and the acting superintendent regard-
ing the allegations of his alleged relationship with the
victim and that he orally resigned his position at the
end of that meeting.
The allegations in the arrest warrant affidavit and in
the state’s proffer submitted in response to the defen-
dant’s motion to dismiss, therefore, established proba-
ble cause to believe that the defendant was employed
as a coach at the victim’s high school until he resigned
in the spring of 2019, which included the time period
during which he had engaged in sexual intercourse with
the victim.13
On appeal, the defendant relies on the decision of
the Vermont Supreme Court in State v. Graham, 202
Vt. 43, 147 A.3d 639 (2016). In that case, the state
appealed from the dismissal of charges against the
defendant of three counts of sexual exploitation of a
minor, which were based on the defendant’s sexual acts
with a student during the summer break. Id., 44; see
Vt. Stat. Ann. tit. 13, § 3258 (a) (2014). The defendant
was employed for three consecutive school years under
a collective bargaining agreement. State v. Graham,
supra, 44. The terms of employment established that
she began working two days before school started, and
her employment terminated one day after the last day
of student instruction. Id. The defendant was charged
with engaging in sexual acts with a student in the time
period after her contract for the 2013–2014 school year
ended and before her contract for the 2014–2015 school
year began. Id., 45. The trial court granted the defen-
dant’s motion to dismiss, reasoning that the plain mean-
ing of the Vermont statute required ‘‘the actor to be in
a position of power, authority, or supervision at the
time of the sex act, and that [the] defendant was not
employed by [the union] at the time of the charged sex
acts.’’ Id., 46.
In affirming the decision of the trial court, the Ver-
mont Supreme Court rejected the state’s argument that
the question of whether the defendant was a school
employee during the summer of 2014 was a factual
question for the jury to decide. Id., 47. Specifically, it
reasoned: ‘‘The evidence, viewed most favorably to the
[s]tate, supports the trial court’s findings that [the]
defendant was a school-year employee who was not
under contract with [the union] during the summer of
2014 and had no supervisory responsibilities for . . .
students at that time. . . . Accordingly, the trial court
did not err by not submitting to a jury the question of
whether [the] defendant was an employee . . . during
the summer of 2014.’’ Id. The Vermont Supreme Court
also determined that the statute at issue imposed crimi-
nal liability ‘‘only when the sex act occurred during the
time period in which the actor was in a position of
supervision and was undertaking the responsibilities
that put the actor in a position of supervision.’’ Id., 49.
The present case is distinguishable from State v. Gra-
ham, supra, 202 Vt. 43. First, the statute at issue in
Graham, which requires supervision or authority at the
time of the acts, is more stringent than § 53a-71 (a) (8),
which merely requires that the defendant be employed
by the school and the victim be a student, and they
need not be at the same school. Moreover, in Graham,
the trial court conducted an evidentiary hearing with
witnesses, at which evidence and testimony was pre-
sented establishing that the defendant was a contract
employee with a defined period of employment and
that the alleged sex acts occurred during a gap in her
employment. Id., 44–46. In contrast, the present case
lacks such clear delineation, as the hearing on the defen-
dant’s motion to dismiss was not an evidentiary hearing.
Also, the trial court was limited to considering the arrest
warrant affidavit and the evidentiary proffer from the
state, which did not definitively establish, like in Gra-
ham, that the defendant in the present case was not
an employee at the time of his sexual relationship with
the victim. As noted, when the state’s proffered proof
is viewed in the light most favorable to the state, a
person of reasonable caution could conclude that the
defendant was employed at the time he engaged in
the prohibited conduct with the victim. Under these
circumstances, the court in the present case determined
that the defendant’s employment status at the time of
the sexual relationship was, in part, a factual question
and ‘‘a key inquiry for a jury to consider’’ and, in part,
an element of the offense that the state would be
required to establish. Accordingly, we conclude that
the defendant’s reliance on Graham is unavailing.
For these reasons, in the present case, we conclude
that the court properly denied the defendant’s first
motion to dismiss the information.
II
The defendant next claims that the court improperly
denied his second motion to dismiss, in which he
alleged that § 53a-71 (a) (8) is unconstitutionally over-
broad. Specifically, he argues that there are numerous
scenarios in which § 53a-71 (a) (8), through its incorpo-
ration of the definition of a school employee as set
forth in § 53a-65 (13), ‘‘criminalizes conduct that would
not advance the legitimate goal of protecting students.’’
The state counters that this claim is unreviewable because
the trial court did not address the defendant’s over-
breadth claim in its memorandum of decision. Addition-
ally, the state asserts that, if the claim is reviewable,
the defendant failed to demonstrate that § 53a-71 (a)
(8) reaches a substantial amount of constitutionally
protected conduct. We disagree with the state’s review-
ability argument but, on the merits, conclude that the
defendant cannot prevail on his overbreadth claim.
The following additional undisputed facts and proce-
dural history are relevant to our resolution of this claim.
On May 13, 2021, the defendant filed his second motion
to dismiss the information pursuant to the fifth and
fourteenth amendments to the United States constitu-
tion on the ground that § 53a-71 (a) (8) is unconstitu-
tionally overbroad.14 Specifically, he contended that
§ 53a-71 (a) (8) threatens certain rights protected by the
federal constitution and makes illegal constitutionally
protected speech or conduct. In his second motion to
dismiss, the defendant set forth various examples of
constitutionally protected activities that would be pro-
hibited and would subject the actors to a felony convic-
tion and up to ten years of incarceration for each act.15
On July 1, 2021, the state filed its response to the
defendant’s second motion to dismiss. Therein, it
argued that, pursuant to State v. McKenzie-Adams, 281
Conn. 486, 499, 915 A.2d 822, cert. denied, 552 U.S. 888,
128 S. Ct. 248, 169 L. Ed. 2d 148 (2007), overruled in
part on other grounds by State v. Elson, 311 Conn. 726,
91 A.3d 862 (2014), ‘‘[a]ny fundamental right of sexual
privacy ‘does not protect sexual intimacy in the context
of an inherently coercive relationship, such as the
teacher-student relationship, wherein consent might
not easily be refused.’ ’’ The state, therefore, requested
that the trial court deny the defendant’s second motion
to dismiss alleging his overbreadth claim. The defen-
dant filed a reply to the state’s response on July 7, 2021.
At the July 14, 2021 hearing, the court heard argument
on the defendant’s second motion to dismiss concerning
his overbreadth claim. At the outset, defense counsel
specifically stated that he was making an overbreadth
argument and not presenting a claim that the statute
is unconstitutionally vague. He then referred to the vari-
ous examples he had set forth in his motion, claiming
that § 53a-71 (a) (8) criminalizes permissible behavior
between consenting adults. In response, the state, again,
referred to State v. McKenzie-Adams, supra, 281 Conn.
486. Specifically, the state acknowledged that the analy-
sis in that case focused on a void for vagueness argu-
ment but emphasized the court’s determination that
‘‘any fundamental right of sexual privacy does not pro-
tect sexual intimacy in the context of an inherently
coercive relationship, such as the teacher-student rela-
tionship . . . .’’ It further argued that the defendant
failed to demonstrate that § 53a-71 (a) (8) reaches a
substantial amount of constitutionally protected con-
duct.
On September 29, 2021, the court issued a memoran-
dum of decision denying the defendant’s second motion
to dismiss, in which it focused its decision on whether
the statute is void for vagueness.16 In doing so, the court
failed to address the specific constitutional claim raised
in the defendant’s second motion to dismiss, namely,
his overbreadth claim. Despite this, the defendant did
not take any steps to prompt the court to reconsider
or correct its decision.
On December 2, 2021, pursuant to § 54-94a, the defen-
dant entered a plea of nolo contendere to the charge
of sexual assault in the second degree in violation of
§ 53a-71 (a) (8), reserving the right to appeal from the
denials of his motions to dismiss.17 During that proceed-
ing, the court found that its decisions denying the
motions to dismiss were dispositive of the case.
A
We first address the state’s reviewability argument.
The state contends that, because the trial court did not
address the defendant’s overbreadth argument in its
memorandum of decision denying the defendant’s sec-
ond motion to dismiss but, instead, conducted a
vagueness analysis, coupled with the defendant’s failure
to make any effort to bring this discrepancy to the
attention of the trial court, we should not review this
claim.18 Specifically, the state argues that, ‘‘absent the
defendant compelling a decision on his overbreadth
claim prior to asking the court to accept his conditional
nolo plea, the trial court cannot be said to have deter-
mined, in accordance with . . . § 54-94a, ‘that a ruling
on such . . . motion to dismiss would be dispositive
of the case’ because there is no indication that the court
discerned the issue in rendering its judgment.’’19 In other
words, the state argues that the claim raised on appeal
by the defendant does not fall within the parameters
of § 54-94a. The state cites State v. Revelo, 256 Conn.
494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122
S. Ct. 639, 151 L. Ed. 2d 558 (2001), for the proposition
that, ‘‘[i]n the absence of a showing of good cause, an
appellate court should decline to review an issue that
has not been raised in accordance with the provisions
of § 54-94a.’’ (Internal quotation marks omitted.) We
are not persuaded by the state’s argument.
A review of § 54-94a and the legal principles germane
to the state’s reviewability argument is appropriate. We
start with the language of § 54-94a, which provides:
‘‘When a defendant, prior to the commencement of trial,
enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the
defendant’s motion to suppress or motion to dismiss,
the defendant after the imposition of sentence may file
an appeal within the time prescribed by law provided
a trial court has determined that a ruling on such motion
to suppress or motion to dismiss would be dispositive
of the case. The issue to be considered in such an appeal
shall be limited to whether it was proper for the court
to have denied the motion to suppress or the motion
to dismiss. A plea of nolo contendere by a defendant
under this section shall not constitute a waiver by the
defendant of nonjurisdictional defects in the criminal
prosecution.’’
Section 54-94a permits a defendant to enter a condi-
tional plea of nolo contendere20 while preserving the
right to appeal in certain specified circumstances,
namely, the denial of a motion to dismiss or a motion
to suppress that is dispositive of the case. See, e.g.,
State v. Turner, 267 Conn. 414, 424–25, 838 A.2d 947,
cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d
12 (2004); State v. Munoz, 104 Conn. App. 85, 90, 932
A.2d 443 (2007). ‘‘In enacting § 54-94a, the legislature
created a new, expedited route to the appellate courts
but it did not create a new jurisdictional doorway into
those courts. Section 54-94a is intended to promote
judicial economy by allowing the parties to litigate a
suppression or dismissal issue fully in the trial court,
and thereafter allowing the defendant to obtain review
of an adverse ruling without the parties’ or the court’s
expending additional resources.’’ (Internal quotation
marks omitted.) State v. Paradis, 91 Conn. App. 595,
602, 881 A.2d 530 (2005). We emphasize, however, that
this statute neither creates nor curtails appellate subject
matter jurisdiction; rather, it abrogates the waiver of
constitutional rights that is implicit in a guilty or nolo
contendere plea in the context of a denial of a motion
to dismiss or a motion to suppress when the ruling on
such a motion is dispositive of the case. See State v.
Joseph, 161 Conn. App. 850, 857, 129 A.3d 183 (2015),
cert. denied, 320 Conn. 923, 133 A.3d 878 (2016); see
also State v. Revelo, supra, 256 Conn. 501 n.14. ‘‘The
appellate courts in this state consistently have required
that § 54-94a be interpreted strictly. . . . Our Supreme
Court has refused to expand this statutory right to plead
conditionally and appeal beyond the issues explicitly
enumerated in § 54-94a.’’ (Citation omitted; internal
quotation marks omitted.) State v. Joseph, supra, 857.21
In the present case, it is undisputed that the defendant
entered a nolo contendere plea conditioned, in part, on
the right to appeal the denial of his second motion to
dismiss, which is one of the enumerated motions set
forth in § 54-94a. As required by § 54-94a, the trial court
also determined that its decision denying that motion
was dispositive of the case. The defendant clearly raised
his overbreadth argument in his second motion to dis-
miss and at the hearing on that motion. The trial court
denied that motion, albeit on a different ground, and it
determined that its decision was dispositive of the case.
On his plea form, the defendant indicated that he was
entering a plea of nolo contendere conditioned on his
right to appeal pursuant to § 54-94a. In the space
reserved for naming the specific motions that were
denied by the trial court and on which the defendant
based his conditional plea, the defendant specifically
noted: ‘‘motions to dismiss based on warrant affidavit
[and] overbreadth dated May 13, 2021.’’ Below the
defendant’s notation, the form states: ‘‘A trial court
determined that a ruling on the above motions to sup-
press or motion[s] to dismiss would be dispositive of
the case . . . .’’ That is followed by the signature of
the trial judge, who checked the ‘‘yes’’ box to that state-
ment.
The defendant has appealed pursuant to § 54-94a. In
such an appeal, this court is limited to a determination
of whether it was proper for the court to have denied
the motions to dismiss, which is the very claim raised
by the defendant in this appeal. In making that claim
concerning the denial of his second motion to dismiss,
the defendant argues that the denial of his motion was
improper because § 53a-71 (a) (8) is unconstitutionally
overbroad, which is the same argument he raised in his
second motion to dismiss, at the hearing on that motion
and on his conditional plea form. Under these circum-
stances, we conclude that the defendant’s claim in this
appeal falls within the parameters of § 54-94a.
Having determined that the defendant’s overbreadth
claim on appeal falls within the parameters of § 54-94a
and is, thus, reviewable, we also conclude that our
review of the defendant’s overbreadth claim, despite
the court’s failure to address the claim in its memoran-
dum of decision denying the motion to dismiss, is appro-
priate under the circumstances of this case in light of
the level of review we afford to such claims and to
decisions denying motions to dismiss. Specifically, a
claim challenging the constitutionality of a statute ‘‘pre-
sents a question of law over which our review is ple-
nary.’’ (Internal quotation marks omitted.) Your Man-
sion Real Estate, LLC v. RCN Capital Funding, LLC,
206 Conn. App. 316, 331, 261 A.3d 110, cert. denied, 339
Conn. 908, 260 A.3d 1227 (2021). Moreover, as we stated
previously in this opinion, ‘‘[o]ur review of the trial
court’s ultimate legal conclusion and resulting [denial]
of the motion to dismiss will be de novo.’’ (Internal
quotation marks omitted.) State v. Bonner, supra, 290
Conn. 478. Accordingly, because the issue on appeal
presents a pure question of law, ‘‘the legal analysis
undertaken by the trial court is not essential to this
court’s consideration of the [issue] on appeal.’’ (Internal
quotation marks omitted.) State v. Crespo, 145 Conn.
App. 547, 562 n.7, 76 A.3d 664 (2013), aff’d, 317 Conn.
1, 115 A.3d 447 (2015). Moreover, it also bears repeating
that the defendant’s overbreadth claim is not a new
issue raised on appeal but, rather, was fully briefed and
argued before the trial court, both parties have briefed
the issue in their appellate briefs to this court, and the
state conceded at the hearing before the trial court that
it had no objection to the court making a finding that
its rulings denying the motions to dismiss would be
dispositive of the case. See footnote 22 of this opinion.
As a result, this is not a situation in which it would be
unfair to the state or the court for this court to review
the defendant’s claim that § 53a-71 (a) (8) is unconstitu-
tionally overbroad. See Imperial Casualty & Indem-
nity Co. v. State, 246 Conn. 313, 320–23, 714 A.2d 1230
(1998). Moreover, the state also has suffered no preju-
dice in the circumstances of this case in light of our
conclusion that the defendant cannot prevail on the
merits of his overbreadth claim. See Blumberg Associ-
ates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 158 n.28, 84 A.3d 840 (2014)
(‘‘[r]eviewing an unpreserved claim when the party that
raised the claim cannot prevail is appropriate because
it cannot prejudice the opposing party and such review
presumably would provide the party who failed to prop-
erly preserve the claim with a sense of finality that the
party would not have if the court declined to review
the claim’’). We, therefore, proceed to a review of the
merits of the defendant’s claim.22
B
In claiming that § 53a-71 (a) (8) is unconstitutionally
overbroad, the defendant argues that there are numer-
ous scenarios in which § 53a-71 (a) (8), through its
incorporation of the definition of a school employee
in § 53a-65 (13), ‘‘criminalizes conduct that would not
advance the legitimate goal of protecting students.’’ The
defendant further contends that, by prohibiting a wide
range of normal, widely accepted romantic relation-
ships that the government lacks a legitimate interest
in regulating, the statute criminalizes conduct that is
constitutionally protected. The state counters that the
defendant has failed to demonstrate that this statute
encompasses a substantial amount of constitutionally
protected conduct. We agree with the state.
As an initial matter, we note that ‘‘[l]egislative enact-
ments carry with them a strong presumption of constitu-
tionality. . . . A party challenging the constitutionality
of a validly enacted statute bears the heavy burden of
proving the statute unconstitutional beyond a reason-
able doubt. . . . In the absence of weighty countervail-
ing circumstances, it is improvident for the court to
invalidate a statute on its face.’’ (Internal quotation
marks omitted.) State v. Bennett-Gibson, 84 Conn. App.
48, 56, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859
A.2d 570 (2004); see also State v. Billings, 217 Conn.
App. 1, 26, 287 A.3d 146 (2022), cert. denied, 346 Conn.
907, 288 A.3d 217 (2023). This burden is especially heavy
in the context of a facial challenge. See State v. Ryan,
48 Conn. App. 148, 154, 709 A.2d 21, cert. denied, 244
Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119
S. Ct. 179, 142 L. Ed. 2d 146 (1998). Additionally, we
indulge every presumption in favor of the constitution-
ality of the statute and approach a claim of unconstitu-
tionality ‘‘with caution, examine it with care, and sustain
the [statute] unless its invalidity is clear.’’ (Internal quo-
tation marks omitted.) State v. McKenzie-Adams,
supra, 281 Conn. 500.
Our Supreme Court previously has stated: ‘‘[I]n evalu-
ating the defendant’s challenge to the constitutionality
of the statute, we read the statute narrowly in order to
save its constitutionality, rather than broadly in order
to destroy it. . . . In so doing, we take into account
any prior interpretations that this court, our Appellate
Court and the Appellate Session of the Superior Court
have placed on the statute. . . . [W]e may also add
interpretive gloss to a challenged statute in order to
render it constitutional. In construing a statute, the
court must search for an effective and constitutional
construction that reasonably accords with the legisla-
ture’s underlying intent.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v.
Indrisano, 228 Conn. 795, 805–806, 640 A.2d 986 (1994).
Next, we set forth a general description of the over-
breadth doctrine. ‘‘The essence of an overbreadth chal-
lenge is that a statute that proscribes certain conduct,
even though it may have some permissible applications,
sweeps within its proscription conduct protected by
the first amendment. . . . Overbroad statutes, like
vague ones, inhibit the exercise of constitutionally pro-
tected conduct. . . . A party has standing to raise an
overbreadth claim, however, only if there [is] a realistic
danger that the statute will significantly compromise
recognized [f]irst [a]mendment protections of parties
not before the [c]ourt . . . . In Broadrick v. Okla-
homa, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d
830 (1973), the Supreme Court stated that where con-
duct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute’s
plainly legitimate sweep.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v. Sny-
der, 49 Conn. App. 617, 623–24, 717 A.2d 240 (1998);
see also Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S.
Ct. 2191, 156 L. Ed. 2d 148 (2003).23 Finally, we note
that in Broadrick v. Oklahoma, supra, 613, the United
States Supreme Court stated that ‘‘[a]pplication of the
overbreadth doctrine . . . is, manifestly, strong medi-
cine. It has been employed by the [c]ourt sparingly
and only as a last resort. Facial overbreadth has not
been invoked when a limiting construction has been or
could be placed on the challenged statute.’’ (Emphasis
added.) Id.; see also United States v. Hansen, 599 U.S.
762, 770, 143 S. Ct. 1932, 216 L. Ed. 2d 692 (2023)
(‘‘[b]ecause it destroys some good along with the bad,
[i]nvalidation for overbreadth is strong medicine that is
not to be casually employed’’ (internal quotation marks
omitted)).
Our Supreme Court has explained the rationale
underlying the overbreadth doctrine. ‘‘A clear and pre-
cise enactment may . . . be overbroad if in its reach
it prohibits constitutionally protected conduct. . . . A
single impermissible application of a statute, however,
will not be sufficient to invalidate the statute on its face;
rather, to be invalid, a statute must reach a substantial
amount of constitutionally protected conduct. . . . A
[defendant] may challenge a statute as facially over-
broad under the first amendment, even if the [defen-
dant’s] conduct falls within the permissible scope of
the statute, to vindicate two substantial interests: (1)
eliminating the statute’s chilling effect on others who
fear to engage in the expression that the statute uncon-
stitutionally prohibits; and (2) acknowledging that
every [person] has the right not to be prosecuted for
expression under a constitutionally overbroad statute.
. . . Thus, the [defendant] has standing to raise a facial
overbreadth challenge to the [statute] and may prevail
on that claim if he can establish that the [statute]
reaches a substantial amount of constitutionally pro-
tected conduct even though he personally did not
engage in such conduct.’’ (Internal quotation marks
omitted.) State v. Cook, 287 Conn. 237, 244–45, 947 A.2d
307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L.
Ed. 2d 328 (2008).
Our Supreme Court’s decision in State v. McKenzie-
Adams, supra, 281 Conn. 486, is particularly helpful to
the resolution of this appeal, as it addressed both an
alleged constitutional right to sexual privacy and the
purpose underlying § 53a-71 (a) (8). In that case, the
defendant, a teacher, was convicted of thirteen counts
of sexual assault in the second degree in violation of
§ 53a-71 (a) (8), involving two victims who were stu-
dents at the school where he taught. Id., 489, 491. On
appeal, he claimed, inter alia, that this statute violated
his right to sexual privacy under the federal and state
constitutions. Id., 489–90. Specifically, he argued that
§ 53a-71 (a) (8) is invalid on its face and as applied to
the facts of his case because it violated his right to
sexual privacy, which included the right to engage in
noncommercial consensual sexual intercourse with
individuals over the age of consent. Id., 498. In rejecting
the defendant’s claim, our Supreme Court stated: ‘‘We
need not decide whether a fundamental right of sexual
privacy exists generally because we agree with the state
that, even if such a right exists, it does not protect
sexual intimacy in the context of an inherently coercive
relationship, such as the teacher-student relationship,
wherein consent might not easily be refused.’’ Id., 498–
99.
With respect to the rationale underlying § 53a-71 (a)
(8), our Supreme Court stated: ‘‘It is beyond cavil that
the government has a legitimate interest in providing
a safe and healthy educational environment for elemen-
tary and secondary school students. . . . To this end,
the legislature reasonably could have concluded that
school employees are given unique access to students,
and are thereby vested with great trust and confidence
by the school, parents, and public, and [the legislature
could have] sought to preserve or strengthen that trust
by unequivocally prohibiting school employees from
misusing their access to students as a conduit for sex.
. . . Moreover, the legislature reasonably could have
concluded that a sexually charged learning environment
likely would confuse, disturb and distract students,
thereby undermining the quality of education in the
state.’’ (Citations omitted; internal quotation marks
omitted.) Id., 507–508.
Guided by these principles, we turn to the specifics
of the defendant’s arguments on appeal. He contends
that numerous circumstances exist in which conduct
that does not support the goal of protecting students
is criminalized by § 53a-71 (a) (8). He then lists hypo-
thetical examples to support this supposition, including
situations involving a thirty-two year old kindergarten
teacher engaged in a consensual sexual relationship
with a thirty-four year old night student in a local high
school, an eighteen year old administrative assistant
for a board of education engaged in a consensual rela-
tionship with an eighteen year old high school student,
a twenty-one year old college student employed on a
part-time basis as a paraprofessional at an elementary
school engaged in a consensual sexual relationship with
his fiancé, who is an eighteen year old high school
student, and an eighteen year old basketball coach who
is engaged in a sexual relationship with an eighteen
year old student who attends a different school in the
same school district.
For purposes of the present analysis, we assume that
a right to sexual privacy24 exists under the federal con-
stitution. See, e.g., State v. Stephens, 301 Conn. 791,
798–99, 22 A.3d 1262 (2011) (United States Supreme
Court has stated repeatedly ‘‘that overbreadth analysis
is appropriate only when first amendment rights are
implicated,’’ and Connecticut courts have followed that
principle); but see URI Student Senate v. Narragansett,
631 F.3d 1, 12–13 (1st Cir. 2011) (overbreadth claim
failed when plaintiffs’ facial challenge to town ordi-
nance did not implicate protections of first amend-
ment).
Next, we proceed to our Supreme Court’s directive
that, ‘‘[t]o determine whether a statute reaches a sub-
stantial amount of constitutionally protected conduct,
we must first interpret its language and determine the
scope of its prohibitions.’’ State v. Linares, 232 Conn.
345, 365, 655 A.2d 737 (1995). Section 53a-71 (a) (8)
prohibits a school employee, as that term is defined in
§ 53a-65 (13), from engaging in sexual intercourse, as
that term is defined in § 53a-65 (2), with another person
who is enrolled in a school in which the employee
works or another school under the jurisdiction of the
local or regional board of education. The express terms
of the statute, therefore, limit its applicability to situa-
tions in which the actor and the other person are
employed by, and enrolled in, respectively, the same
school or a school within the jurisdiction of the local
or regional board of education that employes the actor.
See id., 375 (locational element limited ‘‘statute’s
restrictive effect on protected speech’’).
Mindful of this textual limitation regarding the scope
of § 53a-71 (a) (8), we next consider whether it ‘‘reaches
a substantial amount of constitutionally protected con-
duct even though [the defendant] personally did not
engage in such conduct.’’ (Internal quotation marks
omitted.) State v. Cook, supra, 287 Conn. 245. In doing
so, we are guided by the following observations from
the United States Supreme Court: ‘‘The concept of sub-
stantial overbreadth is not readily reduced to an exact
definition. It is clear, however, that the mere fact that
one can conceive of some impermissible applications
of a statute is not sufficient to render it susceptible to
an overbreadth challenge. On the contrary, the require-
ment of substantial overbreadth stems from the under-
lying justification for the overbreadth exception itself—
the interest in preventing an invalid statute from inhib-
iting the speech of third parties who are not before the
[c]ourt. The requirement of substantial overbreadth is
directly derived from the purpose and nature of the
doctrine. While a sweeping statute, or one incapable
of limitation, has the potential to repeatedly chill the
exercise of expressive activity by many individuals, the
extent of deterrence of protected speech can be
expected to decrease with the declining reach of the
regulation. . . . In short, there must be a realistic dan-
ger that the statute itself will significantly compromise
recognized [f]irst [a]mendment protections of parties
not before the [c]ourt for it to be facially challenged
on overbreadth grounds.’’ (Citation omitted; emphasis
added; footnote omitted; internal quotation marks omit-
ted.) Members of City Council of Los Angeles v. Tax-
payers for Vincent, 466 U.S. 789, 800–801, 104 S. Ct.
2118, 80 L. Ed. 2d 772 (1984).
Stated differently, ‘‘where conduct and not merely
speech is involved . . . the overbreadth of a statute
must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.’’
(Internal quotation marks omitted.) State v. Snyder,
supra, 49 Conn. App. 624. Moreover, ‘‘[t]he overbreadth
claimant bears the burden of demonstrating, from the
text of [the law] and from actual fact, that substantial
overbreadth exists.’’ (Emphasis added; internal quota-
tion marks omitted.) Virginia v. Hicks, supra, 539 U.S.
122; see also United States v. Hansen, supra, 599 U.S.
784 (to succeed on claim, defendant must show that
overbreadth is substantial relative to statute’s plainly
legitimate sweep); State v. Culmo, 43 Conn. Supp. 46,
73, 642 A.2d 90 (1993) (‘‘[t]he task of demonstrating
that a statute will significantly compromise recognized
first amendment rights of parties not before the court,
thus triggering facial overbreadth analysis, is on the
defendant’’).
The analysis conducted by the Texas Court of
Appeals in In re Shaw, 204 S.W.3d 9 (Tex. App. 2006),
is instructive to our resolution of the overbreadth claim
in the present case. In In re Shaw, the petitioner was
charged with violating Texas Penal Code Ann. § 21.12
(Vernon Supp. 2006), which prohibits an employee of
a public or private secondary school from engaging in
sexual contact with a person enrolled in that public or
private secondary school. Id., 13 and n.1. The petitioner
filed a pretrial motion for a writ of habeas corpus on
the ground that the statute was, inter alia, unconstitu-
tionally overbroad. Id., 13–14. In rejecting this claim,
the Texas Court of Appeals explained: ‘‘[The petitioner]
imagines a number of circumstances involving sexual
conduct between consenting adults where she alleges
the statute would be applied unconstitutionally. How-
ever, we cannot say the statute is impermissibly broad
when judged in relation to the statute’s plainly legiti-
mate sweep, i.e., employees and students in primary
and secondary schools when the vast majority of such
students are undoubtedly not adults. The record before
us contains no data about what percentage of secondary
school students affected by this statute are adults. Thus,
even if this statute could be said to infringe on funda-
mental [f]irst [a]mendment rights of those students and
employees who are of age, there is no evidence before
us indicating [that the statute] reaches a substantial
amount of constitutionally protected conduct. . . .
Accordingly, we reject [the petitioner’s] contention that
[the statute] violates the [f]irst [a]mendment by being
overly broad.’’ (Citation omitted; internal quotation
marks omitted.) Id., 15.
In the present case, the defendant has failed to meet
his burden of demonstrating that the constitutional
rights of individuals are substantially burdened in rela-
tion to the plainly legitimate sweep of § 53a-71 (a) (8).
See United States v. Thompson, 896 F.3d 155, 166–67
(2d Cir. 2018), cert. denied, U.S. , 139 S. Ct. 2715,
204 L. Ed. 2d 1113 (2019). As noted previously, the state
has a legitimate interest in promoting a safe and healthy
school environment for elementary and secondary
school students by prohibiting teachers or other school
employees from using a position of authority to pursue
a sexual relationship with students enrolled in the edu-
cational system in which they are employed and misus-
ing their access to students as a conduit for sexual
activity. State v. McKenzie-Adams, supra, 281 Conn.
507–508. Absent from the record in the present case is
any evidence to support the defendant’s speculation
regarding a substantial number of relationships that
exist outside of the statute’s legitimate scope. See
United States v. Thompson, supra, 167–68; see also New
York State Club Assn., Inc. v. City of New York, 487
U.S. 1, 14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988). The
defendant did not make any showing that there are real
individuals who fall into the hypothetical situations set
forth in his second motion to dismiss or specify whose
relationships have been chilled by the allegedly over-
broad statute, and his speculation about the impact
of the statute on those hypothetical relationships is
insufficient to demonstrate its overbreadth. See United
States v. Stevens, 559 U.S. 460, 485, 130 S. Ct. 1577,
176 L. Ed. 2d 435 (2010) (Alito, J., dissenting) (court
determining whether statute’s overbreadth is substan-
tial must ‘‘consider . . . statute’s application to real-
world conduct, not fanciful hypotheticals’’); United
States v. Ackell, 907 F.3d 67, 77 (1st Cir. 2018) (‘‘in the
absence of veridical examples, [court was] not inclined
to rely on hypotheticals’’ to invalidate statute on over-
breadth grounds), cert. denied, U.S. , 139 S. Ct.
2012, 204 L. Ed. 2d 220 (2019); United States v. Sayer,
748 F.3d 425, 435–36 (1st Cir. 2014) (defendant did not
establish that statute was substantially overbroad when
he presented one factual example of statute’s unconsti-
tutional application along with list of hypotheticals);
United States v. Morison, 844 F.2d 1057, 1084 (4th Cir.)
(‘‘[t]he [United States] Supreme Court has cautioned
that to reverse a conviction on the basis of other purely
hypothetical applications of a statute, the overbreadth
must not only be real, but substantial as well’’ (internal
quotation marks omitted)), cert. denied, 488 U.S. 908,
109 S. Ct. 259, 102 L. Ed. 2d 247 (1988).
We conclude that the defendant has not shown sub-
stantial overbreadth from the text of the law or from
actual fact. See Regan v. Time, Inc., 468 U.S. 641, 650,
104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984) (‘‘an overbreadth
challenge can be raised on behalf of others only when
the statute is substantially overbroad, i.e., when the
statute is unconstitutional in a substantial portion of
cases to which it applies’’). It was the defendant’s bur-
den to demonstrate a ‘‘realistic danger that the statute
itself will significantly compromise recognized [f]irst
[a]mendment protections of parties not before the
[c]ourt . . . .’’ Members of City Council of Los Angeles
v. Taxpayers for Vincent, supra, 466 U.S. 801. To meet
that burden, the defendant had to present something
more than his examples of hypothetical people involved
in hypothetical situations, all of which involved scenar-
ios with adults. The record before us contains no infor-
mation or data concerning the percentage of adult stu-
dents who are affected by the statute in relation to its
legitimate sweep of protecting school students, the vast
majority of whom likely are not adults. See In re Shaw,
supra, 204 S.W.3d 15. Accordingly, the present case
is not one in which the ‘‘ ‘strong medicine’ ’’ of the
overbreadth doctrine should be employed. New York
v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 73 L. Ed.
2d 1113 (1982); see id., 773 (because legitimate reach
of state statute dwarfed its arguably impermissible
applications, statute was not substantially overbroad).
As a result, we conclude that the defendant’s over-
breadth claim fails and, therefore, that the court prop-
erly denied the defendant’s second motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and . . . (8) the actor is a school
employee and such other person is a student enrolled in a school in which
the actor works or a school under the jurisdiction of the local or regional
board of education which employs the actor . . . .’’
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
4
General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and . . . (9) the actor is a coach
in an athletic activity or a person who provides intensive, ongoing instruction
and such other person is a recipient of coaching or instruction from the
actor and (A) is a secondary school student and receives such coaching or
instruction in a secondary school setting . . . .’’
5
The court stayed execution of the defendant’s sentence pending this
appeal.
6
General Statutes § 53a-65 (13) provides: ‘‘ ‘School employee’ means: (A)
A teacher, substitute teacher, school administrator, school superintendent,
guidance counselor, school counselor, psychologist, social worker, nurse,
physician, school paraprofessional or coach employed by a local or regional
board of education or a private elementary, middle or high school or
working in a public or private elementary, middle or high school; or (B)
any other person who, in the performance of his or her duties, has regular
contact with students and who provides services to or on behalf of students
enrolled in (i) a public elementary, middle or high school, pursuant to a
contract with the local or regional board of education, or (ii) a private
elementary, middle or high school, pursuant to a contract with the supervi-
sory agent of such private school.’’ (Emphasis added.)
7
Our Supreme Court has explained that, ‘‘[i]n this state, the initial step
to commence a prosecution, when an arrest is to be made by virtue of
a warrant, is the presentation of an application for a warrant, which is
accompanied by an affidavit, by a prosecutorial official to a judicial authority.
If the judicial authority finds that the accompanying affidavit shows probable
cause to believe that an offense has been committed, and that the person
complained against committed it, the judicial authority may issue an arrest
warrant. General Statutes § 54-2a.’’ State v. Crawford, 202 Conn. 443, 449,
521 A.2d 1034 (1987).
8
The record is inconsistent as to whether this meeting occurred in May
or June of 2019.
9
‘‘An arrest warrant requires a finding of probable cause that an offense
was committed and that the defendant committed the offense.’’ State v.
Smith, 344 Conn. 229, 256, 278 A.3d 481 (2022); see also State v. Brown,
98 Conn. App. 829, 833, 912 A.2d 525 (2006) (discussing probable cause),
cert. denied, 281 Conn. 920, 918 A.2d 272 (2007).
10
Practice Book § 41-8 provides in relevant part: ‘‘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
. . . (2) Defects in the information including failure to charge an offense
. . . .’’
11
General Statutes 54-56 provides: ‘‘All courts having jurisdiction of crimi-
nal cases shall at all times have jurisdiction and control over informations
and criminal cases pending therein and may, at any time, upon motion by
the defendant, dismiss any information and order such defendant discharged
if, in the opinion of the court, there is not sufficient evidence or cause to
justify the bringing or continuing of such information or the placing of the
person accused therein on trial.’’
12
See footnote 6 of this opinion.
13
We conclude that the state met the standard for probable cause, despite
the evidence that the girls soccer season had ended before the defendant
engaged in sexual intercourse with the victim. See, e.g., State v. Kaster, 264
Wis. 2d 751, 754–55, 763, 663 N.W.2d 390 (App.) (defendant coach for boys
and girls swim teams at high school was charged with sexual assault stem-
ming from contact with student four months after girls swimming season
ended and one month after boys swimming season ended; state’s evidence
that, despite conclusion of his coaching duties, defendant had out of season
contact with athletic director for planning, scheduling, budgeting, and evalu-
ation purposes, and coordinated open swims and fundraising for upcoming
season, was sufficient for jury to conclude that defendant provided services
to school at time of criminal conduct), review denied, 265 Wis. 2d 418, 668
N.W.2d 558 (2003).
14
The defendant also filed his second motion to dismiss pursuant to article
first, §§ 8, 9 and 10, of the Connecticut constitution. On appeal, he has not
argued or briefed any claim relating to the state constitution. Accordingly,
we deem any such claim abandoned. See State v. Stephenson, 207 Conn.
App. 154, 187 n.14, 263 A.3d 101 (2021), cert. denied, 342 Conn. 912, 272
A.3d 198 (2022); see generally Ramos v. Vernon, 254 Conn. 799, 815, 761
A.2d 705 (2000) (our Supreme Court repeatedly has apprised litigants that
claim made under state constitution will not be considered and will be
deemed abandoned in absence of separate briefing and analysis).
15
The defendant identified the following as examples to support the over-
breadth argument in his second motion to dismiss:
‘‘1. A thirty-two year old kindergarten teacher who has a consensual
relationship with a thirty-four year old (whom, unbeknownst to her) is a
night student at a local high school, would be liable under [§] 53a-71 (a) (8);
‘‘2. An eighteen year old administrative secretary at the local or region[al]
board of education who has a consensual relationship with an eighteen year
old (whom, unbeknownst to her) has recently moved into the school district
and become a student at a local high school, would be liable under [§] 53a-
71 (a) (8);
‘‘3. A twenty-one year old graduate student employed part-time as a para-
professional at an elementary school who has a consensual relationship
with his fiancé, an eighteen year old senior enrolled in a local high school,
would be liable under [§] 53a-71 (a) (8);
‘‘4. An eighteen year old assistant basketball coach at one high school
who has a consensual relationship with an eighteen year old senior at another
high school within the same school district would be liable under [§] 53a-
71 (a) (8);
‘‘5. A nineteen year old substitute teacher at an elementary school who
has a consensual relationship with an eighteen year old senior at the local
high school would be liable under [§] 53a-71 (a) (8);
‘‘6. A high school student, employed in the cafeteria at his own high
school, who has . . . a consensual relationship with an eighteen year old
classmate at the same high school would be liable under [§] 53a-71 (a) (8).’’
16
‘‘A statute . . . [that] forbids or requires conduct in terms so vague
that persons of common intelligence must necessarily guess at its meaning
and differ as to its application violates the first essential of due process. . . .
Laws must give a person of ordinary intelligence a reasonable opportunity
to know what is prohibited so that he may act accordingly. . . . 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 [him], the [defendant]
therefore must . . . demonstrate beyond a reasonable doubt that [he] had
inadequate notice of what was prohibited or that [he 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 inherent vagueness, for [i]n most English words and phrases there lurk
uncertainties. . . . 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. . . . Thus, even
[a] facially vague law may . . . comport with due process if prior judicial
decisions have provided the necessary fair warning and ascertainable
enforcement standards.’’ (Internal quotation marks omitted.) State v. Ares,
345 Conn. 290, 303–304, 284 A.3d 967 (2022); see also State v. Charles L.,
217 Conn. App. 380, 395–96, 288 A.3d 664, cert. denied, 346 Conn. 920, 291
A.3d 607 (2023).
17
At the plea hearing, the following colloquy occurred between the court
and the defendant:
‘‘The Court: Now, in this case you’re pleading what is known as nolo
contendere. Although you’re pleading guilty you don’t admit some or all of
the factual claims or you don’t acknowledge that the state has the legal
authority to prosecute you. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: So, your counsel will be taking an appeal. If you’re successful
in the appeal, the charges must be dismissed. If you’re not successful, you
are subject to the terms of this plea agreement. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: Once I accept your plea, you can’t withdraw it except for
good reason and with court permission. Do you understand that?
‘‘The Defendant: Yes.’’
18
We note ‘‘that [o]ur case law and rules of practice generally limit [an
appellate] court’s review to issues that are distinctly raised at trial. . . .
[O]nly in [the] most exceptional circumstances can and will this court con-
sider a claim, constitutional or otherwise, that has not been raised and
decided in the trial court. . . . The reason for the rule is obvious: to permit
a party to raise a claim on appeal that has not been raised at trial—after it
is too late for the trial court or the opposing party to address the claim—
would encourage trial by ambuscade, which is unfair to both the trial court
and the opposing party. . . . [T]he determination of whether a claim has
been properly preserved will depend on a careful review of the record to
ascertain whether the claim on appeal was articulated below with sufficient
clarity to place the trial court [and the opposing party] on reasonable notice
of that very same claim.’’ (Citations omitted; emphasis added; internal quota-
tion marks omitted.) Budlong & Budlong, LLC v. Zakko, 213 Conn. App.
697, 714–15, 278 A.3d 1122 (2022). Notably, however, the state does not rely
on this general rule in arguing that this court should not review the defen-
dant’s claim. Instead, the state’s argument concerning reviewability centers
on the issue of whether the defendant’s claim falls within the parameters
of § 54-94a. Our analysis, therefore, relates to the argument raised by the
state on appeal. We note, however, that, for the reasons set forth in this
opinion, the fairness and notice issues underlying this general rule are not
present in this case.
19
At the December 2, 2021 proceeding before the court at which the
defendant entered his plea of nolo contendere, the state indicated to the
court that it had ‘‘no objection to the court making a finding that [its rulings
denying both motions to dismiss] would be dispositive of the . . . case.’’
In light of that concession, the state cannot now assert on appeal that the
trial court could not be said to have determined that its ruling on the second
motion to dismiss would be dispositive of the case. In making that assertion,
the state attempts to parse the court’s determination that its ruling is disposi-
tive of the case with respect to particular issues, namely, the overbreadth
one. The court in the present case, however, did not make an issue-specific
ruling; it merely determined, as required by § 54-94a, that its rulings denying
both motions to dismiss were dispositive of the case. For that reason, we
conclude that the state’s reliance on State v. Paradis, 91 Conn. App. 595,
881 A.2d 530 (2005), is misplaced.
In Paradis, this court had remanded the case to the trial court for a
determination of whether its ruling denying the defendant’s motion to sup-
press was dispositive of the case. Id., 600. The trial court subsequently
determined that its ruling denying the motion to suppress was dispositive
of the case, subject to an articulation it provided, in which it specifically
stated that several issues raised by the defendant were not dispositive and
that the sole dispositive issue related to the search of a garage. Id., 600–601.
Under those circumstances, this court limited its review on appeal to the
single dispositive issue found by the trial court. Id., 603. In contrast, in the
present case, the trial court determined that its ruling denying the second
motion to dismiss was dispositive. Moreover, the plea form contains a
notation that the plea was conditioned on the defendant’s appeal from the
ruling on his motion to dismiss based on ‘‘overbreadth,’’ and the court signed
the form just below that notation, indicating that its ruling on the motion
to dismiss would be dispositive of the case. See State v. Munoz, 104 Conn.
App. 85, 92–93, 932 A.2d 443 (2007) (state, which stipulated at trial that trial
court’s ruling on motion to suppress was dispositive of case, was estopped
from asserting otherwise or that motion to suppress did not fit within
parameters of § 54-94a). Accordingly, the state’s claim is unavailing.
20
‘‘A nolo contendere plea has the same effect as a guilty plea, but a nolo
contendere plea cannot be used against the defendant as an admission in
a subsequent criminal or civil case.’’ (Internal quotation marks omitted.)
State v. Dayton, 176 Conn. App. 858, 869 n.12, 171 A.3d 482 (2017); see also
State v. Madera, 198 Conn. 92, 97 n.5, 503 A.2d 136 (1985).
21
The cases cited by the state in its appellate brief in support of its
argument that the defendant’s claim on appeal is not reviewable are inappo-
site, as they address attempts by a defendant to challenge the denials of
motions other than those of suppression and dismissal. See, e.g., State v.
Kelley, 206 Conn. 323, 333–36, 537 A.2d 483 (1988) (Supreme Court declined
to review defendant’s claim regarding validity of transfer to regular criminal
docket from juvenile docket following conditional plea of nolo contendere);
State v. Greene, 81 Conn. App. 492, 501–502, 839 A.2d 1284 (Appellate Court
declined to review defendant’s claim regarding denial of motion for disclo-
sure because it was not within ambit of § 54-94a), cert. denied, 268 Conn.
923, 848 A.2d 472 (2004); see generally State v. Madera, 198 Conn. 92, 98–99,
503 A.2d 136 (1985).
22
In light of our determination that the defendant’s overbreadth claim is
reviewable, we need not address the defendant’s argument, in the alternative,
that he is entitled to have his claim reviewed 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, 780–81, 120 A.3d 1188 (2015).
23
‘‘The scope of our overbreadth doctrine does not extend to all manners
of expressive activity. For example, our overbreadth doctrine does not apply
to commercial speech. See State v. Leary, 217 Conn. 404, 418, 587 A.2d 85
(1991).’’ Ramos v. Vernon, 254 Conn. 799, 849 n.3, 761 A.2d 705 (2000)
(Sullivan, J., concurring).
24
See State v. McKenzie-Adams, supra, 281 Conn. 506; see also Roberts
v. United States Jaycees, 468 U.S. 609, 617–20, 104 S. Ct. 3244, 82 L. Ed. 2d
462 (1984).