State v. Leavitt

Bieluch, J.,

dissenting. I dissent because I believe that the majority has fundamentally miscontrued the nature of the offense of disorderly conduct as defined by General Statutes § 53a-182 (a) (1). The focus of a disorderly conduct charge is that the defendant caused “inconvenience, annoyance or alarm,” either intentionally or recklessly. Indeed, the use of physical force is not the nucleus of disorderly conduct. Thus, two people who engage in a shouting match on a public street can commit the crime of disorderly conduct without ever engaging in assaultive conduct. It is not the physical conduct of a party who “[ejngages in fighting or in violent, tumultuous or threatening behavior” which is the nub of disorderly conduct, but the disturbing effect of such conduct on others.

In State v. Duhan, 194 Conn. 347, 481 A.2d 48 (1984), the Supreme Court ruled that the jury had the right to conclude, on the basis of the evidence presented, that the defendant was guilty of disorderly conduct under General Statutes § 53a-182 (a) (3) proscribing “unreasonable noise” for the following reasons: “[Her] conduct, if not intentional, manifested reckless indifference to the disturbance she was creating. Her conduct was disorderly not because of the language she used but because the noise she made could be found by a jury to be unreasonably disturbing in the particular time, place and circumstances where it occurred. . . . That is the type of conduct which falls within the statute, and the evidence was sufficient to establish that conduct.” (Emphasis added.) Id., 359-60. This judicial delineation of the disorderly conduct statute is also the form of measurement for a conviction of disorderly conduct under § 53a-182 (a) “when, with intent to cause inconvenience, annoyance or alarm, or reck*526lessly creating a risk thereof, [a person]: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .” Thus, in the present case, the defendant’s conduct, if disorderly, had to be so not because of his behavior, but because of its effect on others.

Under the analysis proposed by the majority, if the defendant’s use of force had been “reasonable,” he would have had available to him the defense of justification under General Statutes § 53a-18 (1) regardless of the extent of the disturbing effect his actions may have had upon others. Further, the majority implies that if the defendant had been charged under any other subsection of General Statutes § 53a-182 (a), his actions would not then have been justifiable under § 53a-18 (1), since no “assaultive” conduct would have been charged against him. In short, the majority improperly focuses on a subsidiary element of one means of committing the offense of disorderly conduct, rather than upon the inconvenience, annoyance or alarm, or risk thereof, which is the heart of a disorderly conduct offense.

Section 53a-18 provides that “[t]he use of physical force upon another person which would, otherwise constitute an offense is justifiable and not criminal under any of the [designated] circumstances.” (Emphasis added.) The crime charged in this case, disorderly conduct, however, was not that the defendant used physical force upon his daughter such as would be the case if he had been charged with assault. Rather, the convicting factor of disorderly conduct is in the inconvenience, annoyance or alarm, or recklessly creating a risk thereof, caused to others. Hence, I would conclude that the justification defense of § 53a-18 (1) is inapplicable to the crime of disorderly conduct since it is a defense to crimes of physical force, rather than to the crime of inconvenience, annoyance or alarm to others, with or without assaultive conduct.

*527Despite my conclusion that § 53a-18 (1) does not provide a defense of justification to the charge of disorderly conduct, I would nevertheless reverse the defendant’s conviction of that charge.

The only evidence presented of any inconvenience, annoyance or alarm, or reckless risk thereof, caused by the defendant’s actions was of that which was caused to the daughter who he was attempting to punish. Under the majority’s view, a parent cannot corporally punish a child without running the risk of having to defend a disorderly conduct charge based upon the “reasonableness” of the force used. I would conclude that where a child suffers inconvenience, annoyance or alarm by reason of her receipt of punishment from a parent, such inconvenience, annoyance or alarm should not be the basis for a charge of disorderly conduct. Punishment, by its very nature, is designed to cause inconvenience, annoyance or alarm to its recipient, and if it does not do so, it is usually ineffective.

If the objection raised to the punishment in this case is that the force used was excessive, then an assault charge would have been appropriate. The reasonableness of the force used would then have been a proper element of a defense to that charge pursuant to § 53a-18 (1). Since punishment, unlike a reward, is inflicted with the express purpose of causing inconvenience, annoyance or alarm, and since, as the majority concedes, such punishment is recognized as a valid and necessary tool in training and educating children, to which I add developing character, I would conclude that punishment must necessarily be treated as an exceptional circumstance which cannot be the basis to support a disorderly conduct charge where the only person inconvenienced, annoyed or alarmed is the child being punished. Any other approach would hamper the efforts of parents to raise their children with discipline and respect for authority, so that they may become bet*528ter citizens for their own good and welfare, as well as for the betterment of their community and society as a whole.

For the foregoing reasons, I dissent.