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State v. Lepeska

Court of Appeals of Connecticut

October 25, 2016


          Argued September 21, 2016

         Appeal from Superior Court, judicial district of Waterbury, geographical area number four, Crawford, J.

          Peter G. Billings, with whom, on the brief, was Sean P. Barrett, for the appellant (defendant).

          Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (state).

          Lavine, Alvord and Bear, Js.


          ALVORD, J.

         The defendant argues, ‘‘[a]ll of the conduct set forth by the state amounts to an attempt to reconcile by a man who did not know that his relationship was over.'' We disagree.

         The defendant, John Joseph Lepeska, appeals from the judgment of conviction, rendered after a jury trial, of stalking in the second degree in violation of General Statutes § 53a-181d (b) (1).[1] On appeal, the defendant claims that (1) there was insufficient evidence to prove that the victim's[2] fear for her physical safety was objectively reasonable and (2) the trial court improperly excluded the testimony of two defense witnesses. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and the victim met in 1978. In December, 2011, they reconnected and began dating. Shortly thereafter, in February, 2012, they began living together at the victim's residence. During their relationship, there were incidents of domestic violence.[3]

         On August 3, 2013, at approximately 3:30 a.m., the victim was arrested after a domestic violence incident between her and the defendant.[4] The victim was released later that day at approximately 7 a.m.; a condition of her release was that she could not have contact with the defendant.[5] An officer drove the victim from the police station to her house so that she could pick up her vehicle. The victim proceeded to the residence of her friend, Joseph Gorman, because she had a mobile home parked on his property.

         While driving to Gorman's house, the victim noticed the defendant driving up behind her in his van at a high rate of speed. As a result, she ‘‘froze'' and stopped her vehicle. The defendant, who appeared very agitated, jumped out of his van, started shaking his fist, and screamed that the victim ‘‘better not be going to Joey's house because if [she] was . . . he was going to do something . . . .'' As the defendant began to walk toward her, the victim realized that she should not have stopped her vehicle, and she drove away from the defendant and called 911. The defendant did not follow her. The victim met with state police troopers alongside the road to report the incident, and then she proceeded to Gorman's house.

         That same day, at approximately 1 p.m., the victim, her daughter, and another friend went to a Verizon store. While at the Verizon store, the victim noticed the defendant driving back and forth, sounding his horn, and waving at her.[6] The victim estimated that he drove back and forth approximately four or five times, sounding the horn and waving at her each time. The victim did not report this incident to the police at that time.

         That evening, the victim returned to her mobile home on Gorman's property. While the victim and Gorman were sitting in his garage, the defendant drove up in his van. When the victim heard a vehicle approaching, she asked Gorman to see if it was the defendant. When she saw the defendant approaching her, she ran back into her mobile home, locked the doors, and called 911 because she was ‘‘petrified, '' ‘‘terrified that [the defendant] would harm [her].'' The victim did not speak with the defendant that evening. Instead, Gorman approached the defendant and told him that he was not welcome on the property and needed to leave. The defendant then left Gorman's property. When the officers arrived, the victim provided them with an account of the incident.

         On August 5, 2013, the victim went to the courthouse with her daughter for a court hearing relating to her August 3 arrest. Upon arrival, they went to speak with a family services officer. While they were waiting, the defendant repeatedly called the cell phone of the victim's daughter, insisting that she relay messages to the victim or put the victim on the phone. The victim refused to speak with the defendant. Shortly thereafter, the defendant arrived at the courthouse, sat down in a chair across from the victim, and began motioning for the victim to go down the hallway with him. When the victim refused to go with him, the defendant moved next to her and began to talk to her about reconciling. When the family services officer came out into the hallway, she reminded them that they were not permitted to interact with each other as a condition of the victim's release. The victim then waited for her court appearance down the hall with her daughter. The defendant remained at the courthouse as well. When court resumed, the defendant sat across the courtroom from the victim.

         During the luncheon recess, the victim and her daughter went to put more money in their parking meter after the defendant called the victim's daughter to tell her that the meter was running out. The defendant again called the victim's daughter to ask her and the victim to drive to a gas station down the street so that they could talk. Shortly thereafter, the defendant approached them at the vehicle while they were sitting inside of it. He began yelling through the passenger's side window, where the victim's daughter was sitting. The defendant wanted the victim to go to the gas station with him so that they could reconcile, and he told her that if they did reconcile, he would tell the judge that he did not want the no contact order in place anymore. The victim refused to go with the defendant, and, instead, she and her daughter got out of her vehicle and proceeded down the street, away from the defendant. The defendant chased the victim, yelling at her in an attempt to get her to talk to him and reconcile. The victim and her daughter attempted to get away from the defendant by crossing several streets and going into a cafe´ for lunch.

         The victim and her daughter eventually returned to the courthouse. While there, the victim's daughter called her father, the victim's former husband, to pick her up from the courthouse because it was getting to be late in the afternoon. While the victim's daughter met with the victim's former husband outside the courthouse, the victim initially stayed inside the courthouse. When the victim exited the courthouse, the defendant again tried to confront her, and she attempted to evade him by going to different locations around the courthouse. When the defendant continued to run after her, the victim went to her former husband's vehicle.

         At that point, the victim's former husband told their daughter to call 911 because the defendant's behavior was ‘‘ridiculous, there's a protective [condition] in place, [and] he shouldn't be trying to go after her.''[7] The victim's former husband advised the victim to go back inside the courthouse because it would be safe for her in there. The victim then ran back into the courthouse, and the defendant followed her up to the courthouse doors. Once inside the building, the victim told the marshals what had happened, and they told her to speak with a family services counselor. Unable to meet with a family services counselor before court resumed, the victim returned to the courtroom and reported the defendant's conduct to the court when her case was called.

         After her appearance in court, the victim left the courthouse. Later that day, the victim began receiving phone calls from a blocked phone number. Initially, the victim answered the phone, but when she recognized the defendant's voice, she stopped answering the calls. The defendant's persistent calls continued throughout the night.

         The next morning, on August 6, 2013, the victim discovered that she had voice mails from the defendant, who was, again, begging her to reconcile. The victim called the police department to report the calls, and she was instructed to go to the nearest police station to fill out a report of the incident, which she did. After making the report, the victim went to work. When she arrived at work, the victim's supervisor informed the victim that she had received a voice mail from the defendant stating that the victim would not be at work that day because she had been arrested and was in court. The defendant further stated in the voice mail that ‘‘he personally had witnessed [the victim] taking a cash bribe of at least two thousand dollars from a supplier. That [the victim] had done so in exchange for [her] having been awarded some work to that supplier. He also stated that [she] had shared company secrets with him. And that if [her] boss did not tell [the victim] to call him and reconcile with him and turn his . . . fuckin' phone back on, [8] that he was going to call Sikorsky Corporate United Technologies and report the same.'' (Footnote added.) The victim called the police department to report the incident, but the defendant was not arrested because of that report.

         The next day, August 7, 2013, the victim was scheduled to play pool at a local pool club as a member of her weekly pool league. The defendant was also a member of the pool league. Prior to the victim's arrival, the defendant approached one of the victim's teammates, Jan King, and asked her to call the victim. The defendant, who appeared ‘‘frustrated, '' told King to tell the victim to call him or else ‘‘he was going to make [her] life so miserable that [she] would have no choice but to call him.'' King then called the victim to tell her what had happened, but King emphasized that the victim should not contact the defendant and that she should continue to keep her distance from him because of the no contact order.

         From August 8, 2013 until the defendant's arrest in October 9, 2013, the victim continued to receive blocked calls on her cell phone.[9] Sometimes she would receive dozens of calls from the defendant within a short period of time.[10] On August 9, 2013, in addition to receiving phone calls from a blocked number, the victim found flowers on her vehicle in the morning.

         A few days later, on the victim's birthday, she did not awake to find any missed phone calls. She believed that she was finally getting a ‘‘reprieve'' from the defendant, but later she saw that someone had painted ‘‘happy birthday XO'' in bright white paint across the street outside of the property where she was now staying with her father. At approximately 7 a.m., she began receiving more phone calls from a blocked number. She received approximately forty-three calls that day. The victim notified the police about what happened that day, and the police contacted the defendant, but did not arrest him. Because of the defendant's conduct on her birthday, the victim decided to leave the spotlights on at night, and her father began leaving his gun safe unlocked.

         On August 15, 2013, the defendant continued to attempt to contact the victim, now through Facebook's message system. The victim received numerous Face-book messages from the defendant.

         On August 28, 2013, the victim applied for a protective order against the defendant. That same day, she was scheduled to play in her weekly pool league. Prior to the match, the victim's pool team decided to change the location of the match with the hope that the defendant would not show up and the victim would be able to play. Nevertheless, the defendant showed up at the new location. Upon arriving at the pool hall, the defendant approached one of the victim's teammates, James Bradley, and told him to call the victim and tell her that she could not play because of the no contact order. When Bradley stepped outside to call her, the ‘‘irate'' defendant came ‘‘storming out of the bar, screaming and yelling obscenities and everything.'' The victim recalled hearing through the phone the defendant screaming something to the effect of ‘‘tell her I'll fucking kill her, how dare she serve a restraining order paperwork on me . . . .'' Bradley told the defendant to back off, hung up the phone, and went back inside the bar. Ultimately, the pool team elected to forfeit the last two games of the night so that they would not have to continue to play pool with the defendant, which rendered them ineligible for the regional tournament in Las Vegas, Nevada.

         On September 6, 2013, the victim's daughter made a comment on Facebook that she and her mother were planning to go to a local festival the following day. That night, the victim's daughter received a phone call from the defendant, who told her, ‘‘I'm coming there after your mother, I'm going to fuck her up.''[11] Because the victim and her daughter were not at the festival that day, they were not worried about running into the defendant and hoped that he would continue to think that the victim was at the festival.

         On September 16, 2013, the victim approached the Office of the State's Attorney about the defendant's conduct, and she met with four officers to provide a statement about the defendant's conduct. The detectives assigned to investigate the case subsequently contacted the defendant about the victim's allegations. When one of the detectives met with the defendant, the defendant informed him ‘‘that this is a free country and that he didn't feel that a judge could issue a protective order to stop him from seeing the person that he loved. That there was recently a restraining order placed that he was having a hard time not violating.''

         On September 2, 2014, a jury trial commenced on a one count long form information charging the defendant with stalking in the second degree, in violation of § 53a-181d (b) (1), for his conduct between August 3, 2013 and September 8, 2013. On September 5, 2014, the jury found the defendant guilty of the charged crime. That same day, the defendant pleaded nolo contendere to a part B information charging him with being a persistent offender pursuant to General Statutes § 53a-40d. This appeal followed.


         The defendant's first claim on appeal is that there was insufficient evidence for the jury to find him guilty of stalking in the second degree. In his view, ‘‘[a]ll of the conduct set forth by the state amounts to an attempt to reconcile by a man who did not know that his relationship was over''; therefore, no reasonable jury could have concluded that the victim's fear of the defendant during the time in question was objectively reasonable. We disagree.

         ‘‘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. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt . . . . [A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty.'' (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16-17, 115 A.3d 447 (2015).

         To obtain a conviction under § 53a-181d (b) (1), the state must prove beyond a reasonable doubt that the defendant ‘‘knowingly engage[d] in a course of conduct directed at a specific person that would cause a reasonable person to fear for such person's physical safety or the physical safety of a third person . . . .'' ‘‘The standard to be applied in determining the reasonableness of the victim's fear in the context of the crime of stalking is a subjective-objective one . . . . As to the subjective test, the situation and the facts must be evaluated from the perspective of the victim, i.e., did she in fact fear for her physical safety? . . . If so, that fear must be objectively reasonable, i.e., a reasonable person under the existing circumstances would fear for his or her physical safety.'' (Internal quotation marks omitted.) State v. Arthurs, 121 Conn.App. 520, 526-27, 997 A.2d 568, cert. denied, 310 Conn. 957, 82 A.3d 626 (2013).

         The defendant challenges only the objective reasonableness of the victim's fear. In this case, the recited testimony clearly provided an adequate basis for the jury to find that the victim's fear was objectively reasonable. Between August 3, 2013 and September 8, 2013, the defendant engaged in obsessive behaviors, such as calling the victim dozens of times a day, including during the night, and sending her numerous Facebook messages. He engaged in this conduct even though he knew that a no contact order was in place, even though the victim told him that she did not wish to speak with him, and even though he knew that the victim had ignored his prior attempts to contact her. On three occasions, he attempted to approach the victim in person to discuss their relationship, and the victim testified that each time, she ...

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