State v. Ares

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      STATE OF CONNECTICUT v. ANGEL ARES
                  (SC 20367)
             McDonald, D’Auria, Mullins, Kahn and Ecker, Js.*

                                   Syllabus

Convicted, after a bench trial, of the crimes of first degree arson, first degree
   reckless endangerment, and risk of injury to a child in connection with
   a fire at a multifamily residence where the defendant lived, the defendant
   appealed to this court. After getting into an argument with his stepfather
   on the first floor of the residence, the defendant was forced out of the
   building by one of his stepbrothers, shortly after which the defendant
   set fire to a mattress on the front porch. The fire engulfed the building,
   but all of the occupants of the residence were evacuated, including
   four children who were inside a second floor apartment. The state
   subsequently charged the defendant with four counts of risk of injury
   to a child under the act prong of the risk of injury statute (§ 53-21 (a)
   (1)), alleging, in each count, that the defendant ‘‘did an act likely to
   impair the health [or] morals of a child.’’ In finding the defendant guilty
   on each of those four counts, the trial court concluded that he had
   ‘‘placed each child in a situation . . . likely to injure the child’s physical
   health’’ by intentionally setting the fire. On the defendant’s appeal from
   the judgment of conviction, held:

1. The defendant could not prevail on his claims that there was insufficient
    evidence to support his conviction of risk of injury to a child under the
    act prong of § 53-21 (a) (1) and that the act prong was unconstitutionally
    vague as applied to him, which were based on his assertion that the
    state had failed to adduce proof that he had perpetrated an act directly
    on the children in the second floor apartment:

   a. The evidence presented at trial was sufficient to support a conviction
   of risk of injury to a child under the act prong of § 53-21 (a) (1), as that
   evidence, and the reasonable inferences drawn therefrom, demonstrated
   that the defendant’s decision to set fire to the mattress on the front
   porch resulted in a risk of direct, physical harm to the four children in
   the second floor apartment:

   It was of no consequence that the defendant’s actions were motivated by
   the argument with the first floor occupants, rather than being specifically
   directed at the children on the second floor, or that the children escaped
   from the building unharmed, as neither specific intent nor proof of actual
   injury is required to prove a violation of § 53-21 (a) (1).

   The evidence supported a reasonable inference that the defendant knew
   the children were present in the residence at the time of the incident,
   as the defendant’s stepbrother, whom the trial court found to be credible,
   testified that he had told the defendant to leave the residence because
   he was doing ‘‘crazy things around the kids,’’ and a reasonable finder of
   fact could have concluded, on the basis of the totality of the circumstances, that the defendant’s conduct was sufficiently egregious to rise
   to the level of blatant abuse, especially in light of evidence presented
   about the speed of the blaze and the intensity of the heat and smoke
   that it produced.

   b. The act prong of § 53-21 (a) (1) was not unconstitutionally vague as
   applied to the defendant:

   A person of ordinary intelligence would understand that the defendant’s
   alleged conduct constituted an act likely to impair the health of a child,
   as proscribed by the act prong of § 53-21 (a) (1).

   Because it was reasonable to infer that the defendant knew that the
   children were inside of the residence when he set fire to the mattress,
   and because § 53-21 (a) (1) requires neither specific intent nor proof of
   actual injury, this court perceived no plausible reason to believe that
   the defendant was operating under a mistaken belief that his conduct
   with regard to the children was lawful.
2. The trial court improperly found the defendant guilty of risk of injury
    under the situation prong of § 53-21 (a) (1), in violation of the defendant’s
    constitutional right to notice of the charges against him, insofar as the
    state’s information alleged only that the defendant violated the act prong
    of that subdivision, and, accordingly, this court reversed the trial court’s
    judgment with respect to the four counts of risk of injury to a child and
    remanded the case for a new trial as to those counts:

   The trial court’s finding regarding the risk of injury counts, namely, that
   the defendant had ‘‘unlawfully placed each child in a situation . . . likely
   to injure the child’s physical health,’’ tracked the elements and the language of the situation prong of § 53-21 (a) (1), and the trial court’s use
   of that language persuaded this court that the defendant improperly had
   been convicted under the situation prong of § 53-21 (a) (1) and not under
   the act prong of that subdivision, the latter of which the defendant
   specifically was charged with violating in the operative information.
         Argued March 29—officially released November 22, 2022

                             Procedural History

   Substitute information charging the defendant with
eight counts of the crime of reckless endangerment in
the first degree, four counts of the crime of risk of
injury to a child, two counts of the crime of arson in
the first degree, and one count of the crime of criminal
mischief in the first degree, brought to the Superior
Court in the judicial district of Hartford and tried to
the court, Graham, J.; judgment of guilty of eight counts
of reckless endangerment in the first degree, four
counts of risk of injury to a child, and one count of
arson in the first degree, from which the defendant
appealed to this court. Reversed in part; new trial.
  John R. Weikart, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appellant (defendant).
  Linda F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, was Sharmese L. Walcott,
state’s attorney, for the appellee (state).
                           Opinion

   KAHN, J. After a bench trial, the defendant, Angel
Ares, was convicted of one count of arson in the first
degree in violation of General Statutes § 53a-111, eight
counts of reckless endangerment in the first degree in
violation of General Statutes § 53a-63, and four counts
of risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1). In the present appeal, the defendant
challenges only his convictions of risk of injury to a
child by raising the following three claims of error: (1)
there was insufficient evidence to support a conviction
under the act prong of § 53-21 (a) (1) because the state
had failed to adduce any proof that he had ‘‘perpetrated
an act directly on the person of a minor’’ as required
by the judicial gloss first imposed by this court in State
v. Schriver, 

, 

 (1988); (2) the
act prong of § 53-21 (a) (1) is unconstitutionally vague
as applied to him because the conduct proven by the
state falls outside of that very same gloss; and (3) the
trial court improperly convicted him under the situation
prong of § 53-21 (a) (1) when the state’s allegations
against him were limited to only the act prong of that
statute.1 Although our reading of Schriver and its progeny leads us to reject the defendant’s first two claims
on this record, we agree with the defendant that the
trial court committed reversible error by applying the
incorrect elements and convicting the defendant under
the situation prong, a provision he was not formally
charged with violating. Accordingly, we reverse the trial
court’s judgment of conviction with respect to the
counts of risk of injury to a child and remand the case
for a new trial only as to those four counts.
   The following undisputed facts are relevant to our
consideration of the claims presented. At the time of
the incident in question, the defendant lived on the first
floor of a three-family residence located on Brook Street
in the city of Hartford. The defendant was looking for
money in order to purchase drugs and got into an argument inside of that residence with his stepfather, Maximino Rosa, on a Saturday afternoon. The argument
escalated, and the defendant was eventually forced out
of the building’s front door by one of his stepbrothers,
Wilfredo Rosa. Evidence adduced at trial demonstrated
that, moments after being ejected from the building,
the defendant, using a book of matches, set fire to a
mattress on the front porch and fled the scene.2
   The resulting conflagration was, as the trial court
aptly described, ‘‘inten[se], fast moving, and dangerous
to anyone in proximity to it.’’ The police officer who
first arrived at the scene, Brian Herrmann, testified that
all three stories of the building were already engulfed
in flames by the time he arrived.3 Ceilings collapsed,
floors began to give way, and interior walls were either
charred or covered in soot. Electrical wires detached
from the outside of the building, dropped onto a nearby
vehicle, and started sparking in the street. The vinyl
siding on the building melted and began falling around
the structure’s exterior. Captain Brian Kennedy of the
Hartford Fire Department testified that the fire caused
overwhelming heat and smoke—even in the rear portion of the building—and that the conditions inside were
‘‘almost not survivable if you’re not on some kind of
self-contained breathing apparatus.’’
   All twelve occupants who were at the scene at the
time of the incident were evacuated from the building
that day with only minor injuries reported. The defendant’s mother, who was on the first floor when the fire
started, was taken to a hospital and treated for smoke
inhalation. A firefighter who responded to the scene
sustained a laceration to his forehead from falling debris
while inside of the building. A couple living in the third
floor apartment escaped unharmed but lost two family
pets. Most relevant to the claims raised in the present
appeal, however, were the four minor children who
were inside of the building’s second floor apartment.
Wilfredo’s brother, Danny Rosa, was with those children that day and got all of them out of the building
without injury.4
   The state subsequently charged the defendant with
several crimes, including two counts of arson in the
first degree in violation of § 53a-111, eight counts of
reckless endangerment in the first degree in violation
of § 53a-63, four counts of risk of injury to a child in
violation of § 53-21 (a) (1), and one count of criminal
mischief in the first degree in violation of General Statutes § 53a-115. The defendant entered a plea of not
guilty to those charges and waived his right to a jury
trial. During the two day bench trial that followed, the
state presented testimony from various occupants of
the building, police officers, and firefighters. The defendant pursued a theory that the fire had been caused
unintentionally by some other person’s discarded cigarette.
   The trial court rejected that defense and found the
defendant guilty on all counts except for the count
alleging criminal mischief in the first degree.5 In its oral
decision, the trial court made the following finding of
fact: ‘‘[O]n February 24, 2018, in the midafternoon in
the vicinity of 14-16 Brook Street in Hartford . . . the
defendant, with the intent to at least damage that building, started a fire, which destroyed major portions of
that three-family residence.’’ The trial court also found
that, ‘‘at the time he set the fire, the defendant knew
the building was occupied . . . .’’ This specific factual
finding is reasonably supported by evidence in the
record. Danny Rosa testified at trial that family members moved freely throughout the house and that, in
fact, the defendant himself had been on the second
floor shortly before the fire. Wilfredo Rosa likewise
testified that, at some point during the argument that
followed in the first floor apartment, the defendant was
specifically told to leave because he shouldn’t be ‘‘doing
crazy things around the kids . . . .’’
   The trial court sentenced the defendant to eighteen
years of incarceration on one of the two counts of arson
in the first degree, ten years of incarceration on each
of the four counts of risk of injury to a child, and one
year of incarceration on each of the eight counts of
reckless endangerment in the first degree.6 The trial
court specified that each of these sentences were to
run concurrently, resulting in a total effective sentence
of eighteen years of incarceration. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
   The defendant raises three claims of error relating
to his conviction on the counts alleging risk of injury
to a child. First, the defendant claims that the evidence
adduced by the state at trial was insufficient to support
a conviction under the act prong of § 53-21 (a) (1)
because the state had failed to adduce any proof that
he had ‘‘perpetrated an act directly on the person of a
minor.’’ The defendant next claims that this same lack
of proof renders that section of the statute unconstitutionally vague as applied to him. Finally, the defendant
claims that the trial court violated his constitutional
right to notice of the accusations against him by improperly applying the elements under the situation prong of
our risk of injury statute when the state’s information
formally alleged only a violation of that statute’s act
prong. We address the defendant’s first two claims, both
of which turn on an examination of the judicial gloss
imposed by Schriver and its progeny, in part I of this
opinion. We then consider the defendant’s constitutional notice claim in part II of this opinion.
                             I
   Although evidentiary insufficiency and constitutional
void for vagueness claims are often analytically distinct
from one another, in this case, they are entwined
because both are based on the defendant’s assertion
that the record lacks evidence of an act directly perpetrated on the children. See, e.g., State v. 

 (noting that claim of ‘‘evidentiary
[sufficiency was the] flip side of the [defendant’s] void
for vagueness challenge’’). We address these two claims
first because the defendant, if successful on either,
would be entitled to relief in the form of a directed
judgment of acquittal. See State v. Padua, 

, 178–79, 

 (2005).
  In order to put the defendant’s first two claims into
context, we must begin with a brief review of the act
prong of the risk of injury statute and the judicial gloss
imposed on it by case law. This court first described
the conduct proscribed under the second part of § 53-
21 (a) (1) as ‘‘acts directly perpetrated on the person
of the minor and injurious to his moral or physical [well-being]’’ in State v. Dennis, 

, 

 (1963). That description was subsequently elaborated on, and elevated to constitutional significance, by
this court’s decision in State v. 

. The defendant in that case had grabbed the
waist of a fully clothed child while uttering sexually
suggestive remarks and was subsequently charged with
violating § 53-21 by committing ‘‘ ‘an act likely to impair
the health or morals of the victim.’ ’’ Id., 457–58.
   In addressing an as applied vagueness claim in
Schriver, we separated our analysis of acts likely to
impair the ‘‘morals’’ of children on the one hand and
acts likely to impair the ‘‘health’’ of children on the
other. (Internal quotation marks omitted.) Id., 461.
Looking to our decision in State v. Pickering, 

, 

 (1980), we held that the ‘‘core’’ of
the prohibition on acts likely to impair the morals of
children was properly reduced to ‘‘deliberate touching
of the private parts of a child under the age of sixteen
in a sexual and indecent manner . . . .’’ (Emphasis
omitted; internal quotation marks omitted.) State v.

. Because the defendant
in Schriver had not been accused of such conduct, we
concluded that he ‘‘had no reasonable opportunity to
know that his conduct was prohibited by the impairment of morals clause of § 53-21.’’ Id., 466.
   Turning to acts likely to impair the health of children,
we concluded that our precedent ‘‘provide[d] an authoritative judicial gloss that limits the type of physical harm
prohibited by § 53-21 to instances of deliberate, blatant
abuse.’’ 7 Id.; see, e.g., State v. McClary, 

,
234–39, 

 (1988) (child suffered brain injury
from violent shaking); State v. Eason, 

,

 (1984) (child beaten severely with belt),
overruled in part on other grounds by Paulsen v. Manson, 

, 

 (1987); State v. Martin, 

, 

 (child pushed into wall
and then to floor), cert. denied, 

, 

, 

 (1983); State v. Palozie, 

, 290–92, 

 (1973) (child thrown against
chair and head hit against floor). Applying that standard
to the conduct alleged in Schriver, we held that grabbing the waist of a fully clothed child while uttering
sexually suggestive remarks fell outside of the confines
of that provision. Id., 466. Because the conduct alleged
by the state in Schriver did not fall within the act prong’s
protections to either the morals or the health of the
child, we agreed with the defendant’s vagueness claim.8
Id., 468.
  Over the decades following Schriver, two particularly
relevant legal principles have embedded themselves in
our state’s risk of injury jurisprudence. The first is that
the state need not prove specific intent in order to
establish a violation under either the situation or act
prong. See, e.g., State v. Maurice M., 

,

 (2011) (specific intent is not required to
establish violation of situation prong); State v. March,

, 274–75, 

 (specific intent
is not required to establish violation of act prong), cert.
denied, 

, 

 (1995). Evidence
sufficient to support a finding of general intent will
suffice. See, e.g., State v. 

; State v. Euclides L., 

, 161–62,

 (2019).
   The second well established legal principle is that
the state need not prove actual injury in order to secure
a conviction under either the situation prong or the act
prong of § 53-21 (a) (1). See, e.g., State v. Burton, 

, 

 (2001) (‘‘[Section] 53-21
does not require a finding that the victim’s [health or]
morals were actually impaired. On the contrary, § 53-
21 provides [in relevant part] that anyone ‘who . . .
wilfully or unlawfully . . . does any act likely to
impair the health or morals of any such child’ may be
found guilty.’’ (Emphasis added.)); see also State v.
Gewily, 

, 

 (2006); State
v. 

; State v. Samms, 

, 

 (2012), cert. denied,

, 

 (2013). Although Schriver
requires that the defendant commit an act of ‘‘deliberate, blatant abuse’’; State v. 

; it does not require that the defendant cause an
actual injury. It remains possible for a defendant’s conduct to be sufficiently egregious in nature that it rises
to the level of deliberate, blatant abuse, even in the
absence of a defendant’s direct physical contact with
a child. See, e.g., State v. Owens, 

,
622–23, 638, 

 (concluding that ‘‘the mere
fact that the defendant did not physically touch [the
child] while pursuing her should not relieve him of
criminal liability under the act prong’’ when defendant
chased child with knife after stabbing child’s mother),
cert. denied, 

, 

 (2007).
Although proof of physical contact has been required
to sustain a conviction under the act prong of § 53-21
in certain other contexts; see State v. 

 (statutory proscription of acts likely to
impair morals of children required ‘‘deliberate touching
of the private parts of a child under the age of sixteen
in a sexual and indecent manner’’); neither the statute’s
plain text nor the case law applying it requires proof
of such contact in all cases.
                            A
   With this background in mind, we turn to the claim
of evidentiary sufficiency raised by the defendant in
the present appeal. Specifically, the defendant asserts
that, in order ‘‘[t]o prove a violation of the act prong
. . . the state must demonstrate that the defendant perpetrated an act directly on the person of a minor.’’ The
defendant argues that, because the evidence introduced
at trial demonstrated only that he lit fire to a mattress
on the building’s front porch, the state cannot establish
that he ever took any act directly on the person of a
minor. The state contends, in response, that the evidence presented at trial was sufficient to show that the
defendant had committed an act likely to be injurious
to the physical health of the four children inside of the
home at the time of the fire and that, as a result, the
defendant’s claim of evidentiary sufficiency lacks merit.
For the reasons that follow, we agree with the state.
   ‘‘The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction
we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Taupier, 

, 186–87,

 (2018), cert. denied,       U.S.      , 

, 

 (2019).9
   Defense counsel candidly conceded at oral argument
before this court that the evidence would have been
sufficient to sustain the defendant’s conviction had the
children been on the mattress when he started the fire.
He did not—and clearly could not—contend that such
conduct would fall outside of the ambit of the act prong.
See, e.g., State v. Michael T., 

, 601–
605, 

 (2019), cert. denied, 

,

 (2020). The record now before us, however, differs only in degree from that hypothetical. The
fact that the defendant’s actions were motivated by his
fight with the occupants on the first floor, rather than
being specifically directed at the four children themselves, is not categorically dispositive; as previously
stated in this opinion, specific intent is not required to
prove a violation of § 53-21 (a) (1). See, e.g., State v.

. The fact that the children escaped from the building without being harmed
by the resulting flames or smoke is, likewise, not dispositive; to repeat, proof of actual injury is not required.
See, e.g., State v. 

; see also
State v. Owens, supra, 

.
   In order to secure a conviction under the act prong
in the present case, the state was required to prove that
the defendant had engaged in an act of ‘‘deliberate,
blatant abuse’’ that was likely to ‘‘[endanger a] child’s
physical well-being.’’ State v. 

 207 Conn.
466–67. We believe that the evidence presented at trial,
and the reasonable inferences that the trier of fact could
have drawn from that evidence, was sufficient to show
that the defendant’s deliberate choice to set fire to a
mattress on the apartment building’s front porch risked
direct, physical harm to the four children that it is reasonable to infer the defendant knew to be inside of the
building at that time. As to the defendant’s knowledge
of the children’s presence, the trial court specifically
found ‘‘each of the state’s witnesses to generally be
credible,’’ and there was testimony from one of the
state’s witnesses, Wilfredo Rosa, that, on the day of
the incident, he told the defendant to leave the house
because he was ‘‘doing crazy things around the kids
. . . .’’ (Emphasis added.) Viewing the evidence in a
light most favorable to sustaining the verdict, we conclude that there was evidence to support a reasonable
and logical inference that the defendant knew the children were present in the home at the time of the incident. See, e.g., State v. Roy D. L., 

, 

 (2021) (concluding that evidence supported
‘‘reasonable and logical inference’’ that defendant’s
touching of victim was undertaken for purpose of humiliating her (internal quotation marks omitted)). A reasonable finder of fact could have concluded, on the
basis of the totality of the circumstances present in this
particular record, that such conduct was sufficiently
egregious to rise to the level of blatant abuse. Although
the initial distance between the four children and the
fire’s origin, together with their eventual escape from
the structure, may well have been relevant to the question of whether such physical injuries were sufficiently
probable to warrant conviction, ample evidence about
the speed of the blaze—together with the intensity of
both the heat and smoke it produced—undisputedly
supports the trial court’s factual finding in that regard.
As a result, the defendant’s claim of evidentiary insufficiency must fail.
                             B
  The defendant’s second claim is that the act prong
of our risk of injury statute is unconstitutionally vague
as applied to him under the facts of this case. Specifically, the defendant argues that his conduct did not
constitute an act perpetrated on the children and, as
such, fell so far outside of the judicial gloss imposed
by Schriver and its progeny that he lacked adequate
notice that his conduct constituted a violation of the
act prong. For the reasons that follow, we disagree.
   ‘‘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 [defen-
dant] 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. (Citation omitted; internal quotation marks omitted.) State v. Fields, 

,
260–61, 

 (2011).
   We have no difficulty in concluding that a person of
ordinary intelligence would understand that the conduct alleged in the present case constitutes an ‘‘act
likely to impair the health . . . of [a] child’’ proscribed
by the act prong of § 53-21 (a) (1). As previously discussed, judicial decisions interpreting our risk of injury
statute firmly establish that it is a general intent crime
and that the presence of actual physical injury is not
required. Indeed, because it is reasonable for the trier
of fact to have inferred that the defendant knew four
children were inside of the home when he set fire to
the mattress, we can perceive of no plausible reason
to believe that the defendant would have been operating
under the mistaken belief that his conduct with regard
to those children was lawful. See, e.g., State v. Winot,

, 

 (2010) (‘‘the fundamental purpose of the void for vagueness doctrine is to ensure
fair warning in order to avoid traps for the innocent’’
(emphasis omitted; internal quotation marks omitted)).
As a result, the defendant’s as applied vagueness claim
lacks merit.
                            II
   The defendant’s final claim is that the trial court
violated his right to be informed of the charges against
him under the sixth amendment to the United States
constitution10 by finding him guilty of violating § 53-21
(a) (1) under the situation prong when the state had
alleged only a violation of the act prong. The state
contends, in response, that the trial court’s oral decision
should be read as finding the defendant guilty, as
charged, under the act prong. In the alternative, the
state suggests that any variance between the charging
document and the trial court’s findings was harmless.
For the reasons that follow, we agree with the defendant
that the trial court committed reversible error by finding
him guilty of risk of injury to a child based on its application of the elements of the situation prong rather than
of the act prong, as originally charged.
   The following additional facts are relevant to our
consideration of this claim. The information contains
four identical counts alleging risk of injury to a child,
each of which provides: ‘‘The undersigned assistant
state’s attorney accuses [the defendant] of the crime
of risk of injury to a child in violation of . . . § 53-21
(a) (1) and allege[s] that, on or about February 24,
2018, in the vicinity of 14-16 Brook Street in the city of
Hartford, Connecticut, [the defendant] did an act likely
to impair the health and morals of a child.’’ (Emphasis
added.) Although not specified in the pleadings, it is
undisputed that these four counts relate, respectively,
to the four children who were inside of the second floor
apartment when the fire was set.
   The trial court made the following specific findings
in relation to these charges: ‘‘The fourth, fifth, sixth,
and seven[th] counts [of the operative information]
charge the defendant with risk of injury to a child. The
state has proven the elements of each of these counts
beyond a reasonable doubt, and a guilty verdict will
enter as [to] each . . . . It is proven beyond a reasonable doubt that there were four children under the age
of sixteen present at the time of the fire . . . [t]hat the
defendant intended to cause the fire, and had reckless
disregard for the consequences to the children. The fire
was inten[se], spread fast, produced a major amount of
smoke, which moved close to the ground, and required
each adult and child present to be evacuated quickly.
The court finds it proven beyond a reasonable doubt
that the defendant unlawfully placed each child in a
situation adverse to the child’s physical, including
psychological welfare, which situation was likely to
injure the child’s physical health, and that each child
was under the age of sixteen years old.’’ (Emphasis
added.)
   The defendant, conceding that the issue was unpreserved at trial, seeks review of his sixth amendment
notice claim pursuant to State v. Golding, 

, 239–40, 

 (1989). Under Golding, ‘‘a
defendant can prevail on a claim of a constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’
(Emphasis omitted; footnote omitted.) Id.; see also In
re Yasiel R., 

, 781, 

 (2015)
(modifying third prong of Golding). The state’s pleadings and the trial court’s oral findings render the record
adequate for review of the defendant’s claim, and the
state implicitly concedes that the issue is of constitutional magnitude.11
   The principles of law governing our analysis of this
issue are well established. ‘‘The function of an accusatory pleading such as an information is to inform a
defendant of ‘the nature and cause of the accusation’
as required by our federal and state constitutions. U.S.
Const., amend. VI; Conn. Const., art. I § 8.’’ State v.
Carter, 

, 

 (1983). ‘‘Once
such a bill of particulars has been filed or whe[n] . . .
the information is sufficiently precise that no bill of
particulars is needed, the state is limited to proving that
the defendant has committed the offense in substantially the manner described.’’ State v. Ruiz, 

, 

 (1976). We have long recognized
that the application of this general maxim to our risk
of injury statute requires the conclusion that, when
the operative information against a criminal defendant
charges either the act or the situation prong alone, a
consideration of the uncharged portion of the statute
is improper. See State v. 

;
see also, e.g., State v. Newton, 

, 530–32,

 (1986) (trial court’s inclusion of instructions relating to uncharged portion of § 53-21 implicated
defendant’s constitutional right to notice of accusations
against him).12
  Because the parties agree that the fourth, fifth, sixth,
and seventh counts of the information are properly read
as alleging violations under the act prong of § 53-21 (a)
(1), the question of whether a variance exists between
the pleadings and the conviction in this case necessarily
turns on a comparison of the trial court’s factual findings to the various elements required to prove the crime
of risk of injury to a child.
   General Statutes § 53-21 (a) provides in relevant part:
‘‘Any person who (1) wilfully or unlawfully causes or
permits any child under the age of sixteen years to be
placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely
to be injured or the morals of such child are likely to
be impaired, or does any act likely to impair the health
or morals of any such child . . . shall be guilty of . . .
a class C felony . . . .’’ This statutory provision ‘‘proscribe[s] two general types of behavior likely to injure
physically or to impair the morals of a minor under
sixteen years of age: (1) deliberate indifference to,
acquiescence in, or the creation of situations inimical
to the minor’s moral or physical welfare . . . and (2)
acts directly perpetrated on the person of the minor
and injurious to his moral or physical [well-being].’’
(Citation omitted.) State v. 

.
   A conviction under the act prong of § 53-21 (a) (1)
requires the state to prove that the defendant, ‘‘with
the general intent to do so, committed (1) an act (2)
likely to impair the morals or health (3) of a child under
the age of sixteen.’’ (Internal quotation marks omitted.)
State v. Tinsley, 

, 

 (2021);
see also State v. 

 (intent
required is only general intent to do act; no specific
intent to harm child is required). By contrast, in order
to obtain a conviction under the situation prong of § 53-
21 (a) (1), the state must prove that (1) the defendant
wilfully or unlawfully caused or permitted the child to
be placed in a situation, (2) the situation endangered
the child’s life or limb, was likely to injure the child’s
health, or was likely to impair the child’s morals, and
(3) the child was under sixteen years of age at the time
of the incident. See State v. Maurice M., supra, 303
Conn. 27–28; State v. 

 258 Conn. 162–63.
   The trial court’s finding of guilt relating to the risk
of injury counts in this case was specific: ‘‘The court
finds it proven beyond a reasonable doubt that the
defendant unlawfully placed each child in a situation
adverse to the child’s physical, including psychological
welfare, which situation was likely to injure the child’s
physical health, and that each child was under the age
of sixteen years old.’’ This finding tracks the elements
of and the language of the situation prong. By finding
that the defendant had ‘‘placed each child in a situation
. . . likely to injure the child’s physical health,’’ the
trial court based its analysis and finding of guilt on the
elements of the situation prong. (Emphasis added.)
   Although the trial court also found, on a broader
level, that ‘‘the defendant intended to cause the fire
and had reckless disregard for the consequences to the
children,’’ such findings alone do not establish that the
court was applying and making findings under the elements of the act prong. Cf. State v. James E., 

, 

 (2017) (concluding that similar
findings such as ‘‘ ‘the intent to do some act coupled
with a reckless disregard of the consequences’ ’’ were
sufficient to establish violation of situation prong); see
also State v. Sorabella, 

, 172–73, 

, cert. denied, 

, 

, 

 (2006). The language employed by the trial
court in rendering its decision, thus, persuades us to
agree with the defendant’s assertion that he was ultimately convicted under the situation prong of § 53-21
(a) (1) and not under the act prong, as charged in the
operative information. Although the trial court might
also have found the defendant guilty under the act prong
had it applied the correct elements, that possibility
alone is insufficient to warrant affirmance. See, e.g.,
State v. Belton, 

, 

 (1983)
(‘‘appellate courts are not free to revise the basis on
which a defendant is convicted simply because the same
result would likely obtain on retrial’’ (internal quotation
marks omitted)).
  The state, citing State v. Franko, 

, 

 (1986), urges us to conclude that any such
variance between the information and judgment was
harmless. That case, however, is distinguishable. In
Franko, the trial court provided instructions to the jury
that referenced both charged and uncharged portions
of the statute proscribing sexual assault in the first
degree, General Statutes § 53a-70 (a), and the jury subsequently returned a general verdict finding the defendant guilty of that particular offense. Id., 488. This is
not a case in which the trial court considered the elements of both prongs and rendered a general finding
of guilt. This appeal arises, instead, out of the trial
court’s express consideration and exclusive application
of the elements required for a conviction under an
uncharged portion of our risk of injury statute. Dismissing this form of constructive amendment as mere harmless error would effectively allow the state to secure a
conviction under either prong of the risk of injury statute, regardless of the manner in which it initially chose
to allege that the offense was committed. Such a result
would violate basic notions of due process. The defendant in this case was undisputedly entitled to notice of
the manner by which the state claimed that he committed the offense and of the trial court’s determination
of whether the state had proven the elements of that
offense as charged. The trial court’s express application
of the uncharged portion of § 53-21 (a) (1) was in error,
and the defendant is entitled to a new trial on the
charges brought under that statute.13
   The judgment is reversed with respect to the four
counts of risk of injury to a child and the case is
remanded for a new trial on those counts; the judgment
is affirmed in all other respects.
   In this opinion the other justices concurred.
   * This case originally was scheduled to be argued before a panel of this
court consisting of Justices McDonald, D’Auria, Mullins, Kahn and Ecker.
Although Justice Kahn was not present at oral argument, she has read the
briefs and appendices, and listened to a recording of oral argument prior
to participating in this decision.
   1
     Because the defendant initially indicated his intent to appeal from the
trial court’s judgment of conviction with respect to all counts, and because
the crime of arson in the first degree is designated by our legislature as a
class A felony; see General Statutes § 53a-111 (b); that appeal was initially
docketed in this court pursuant to General Statutes § 51-199 (b) (3). The
defendant, however, subsequently briefed only claims of error relating to
the counts of risk of injury to a child in violation of § 53-21 (a) (1), a class
C felony subject to punishment by a term of imprisonment of not less than
one year and not more than ten years. See General Statutes § 53a-35a (7);
see also State v. Lopez, 

, 

 (2022). We exercise
our discretion to retain jurisdiction over the present appeal for the purpose
of judicial economy.
   2
     Although the source of the fire was vigorously contested at trial, the
defendant raises no claims of error with respect to his conviction of arson
in the first degree. See footnote 1 of this opinion.
   3
     Herrmann testified that he had ‘‘never felt such heat before’’ and that
the fire had been so intense that his boots started to melt on an exterior
metal fire escape he used to help evacuate a third floor resident.
   4
     Three of those children lived with Danny Rosa, their father, inside the
second floor apartment. The fourth, Danny Rosa’s stepchild, routinely visited
on weekends.
   5
     The trial court acquitted the defendant on the charge of criminal mischief
in the first degree because it concluded that the state had failed to adequately
prove the monetary value of the damages caused by the fire. The trial court’s
finding in this regard is not at issue in the present appeal.
   6
     At sentencing, the court vacated the defendant’s conviction as to one
count of arson in the first degree pursuant to State v. Polanco, 

, 

 (2013).
   7
     The gloss placed on the act prong of our risk of injury statute in Schriver
was later included as part of our state’s model criminal jury instructions.
Connecticut Criminal Jury Instructions 6.11-2, available at http://www.jud.ct-
.gov/JI/Criminal/Criminal.pdf (last visited November 8, 2022) (‘‘[t]o be likely
to impair the health of a minor, the statute requires that the defendant
committed blatant physical abuse that endangered the child’s physical
well-being’’).
   8
     Because the operative information charged the defendant in Schriver
with a violation of the act prong, we confined our own vagueness analysis
to a consideration of that specific statutory provision. State v. 

. We noted, however, that the state could have ‘‘elect[ed]
to prosecute [the defendant] under the first part of § 53-21, which proscribes
the ‘deliberate indifference to, acquiescence in, or the creation of situations
inimical to the minor’s moral or physical welfare . . . .’ ’’ Id.
   9
     The defendant’s insufficiency claim is unpreserved but is nonetheless
reviewable. See, e.g., State v. Revels, 

, 777, 

 (2014),
cert. denied, 

, 

, 

 (2015).
   10
      The sixth amendment right to notice is made applicable to the states
through the due process clause of the fourteenth amendment to the United
States constitution. Faretta v. California, 

, 

,

 (1975).
   11
      The state makes no claim that the defendant acquiesced to the trial
court’s application of the situation prong. See State v. McClain, 

, 

 (2017) (‘‘Connecticut courts have consistently held
that when a party fails to raise in the trial court the constitutional claim
presented on appeal and affirmatively acquiesces to the trial court’s order,
that party waives any such claim [under Golding]’’ (internal quotation
marks omitted)).
   12
      This restraint arises from the nature of the state’s pleadings and not,
as the defendant suggests in his brief, from a separation of the act and
situation prongs into entirely distinct crimes. Although the two prongs of
§ 53-21 (a) (1) derive from previously separate legislative enactments, precedent indicates that they ‘‘describe alternative means of committing a single
crime.’’ State v. Tanzella, 

, 

 (1993); see also
State v. Sullivan, 

, 

 (1987) (defendant’s
sixth amendment right to notice was not violated by state’s amendment of
operative pleadings to charge violation of act prong in addition to violation
of situation prong initially alleged because ‘‘[t]he original and the amended
informations both charged the defendant with the same crime . . . namely
risk of injury to a minor’’ (citation omitted)).
   13
      The defendant asserts that he is entitled to a judgment of acquittal,
citing State v. Martin, 

, 

 (1982), and State
v. Kristy, 

, 

, cert. denied, 

,

 (1987). The defendants in those cases, however, were acquitted
by a jury of the offense initially charged. See State v. Martin, supra, 217;
State v. 

. The fact that the trial court, in this case, never
acquitted the defendant of risk of injury to a child renders both Martin and
Kirsty distinguishable.
   In the present case, the trial court found the defendant guilty of risk of
injury to a child by relying on elements of an uncharged prong of that same
offense. There was no express or implied finding that the defendant was
not guilty under either prong. Reduced to its essence, the claim now before
us is that the trial court’s erroneous application of the situation prong
‘‘deprived [the defendant] of a fair trial.’’ The proper remedy for such a
claim is, of course, a new trial free from that error. See, e.g., State v. Salgado,

, 408 n.12, 

 (2001) (‘‘[R]eversal for trial error, as
distinguished from evidentiary insufficiency, does not constitute a decision
to the effect that the government has failed to prove its case. As such, it
implies nothing with respect to the guilt or innocence of the defendant.
Rather, it is a determination that a defendant has been convicted through
a judicial process [that] is defective in some fundamental respect . . . .
When this occurs, the accused has a strong interest in obtaining a fair
readjudication of his guilt free from error, just as society maintains a valid
concern for [ensuring] that the guilty are punished.’’ (Internal quotation
marks omitted.)); see also North Carolina v. Pearce, 

, 719–20,

, 

 (1969) (‘‘At least since 1896 . . . it has
been settled that [the double jeopardy clause] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his
first conviction set aside. The principle that this provision does not preclude
the [g]overnment’s retrying a defendant whose conviction is set aside
because of an error in the proceedings leading to conviction is a [well
established] part of our constitutional jurisprudence.’’ (Citation omitted;
emphasis omitted; footnote omitted; internal quotation marks omitted.)),
overruled in part on other grounds by Alabama v. Smith, 

, 

, 

 (1989).