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State v. Bagnaschi

Court of Appeals of Connecticut

April 10, 2018

STATE OF CONNECTICUT
v.
MARY E. BAGNASCHI

          Argued November 15, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of breach of the peace in the second degree and interfering with an officer, brought to the Superior Court in the judicial district of Waterbury, geographical area number four, where the court, K. Murphy, J., denied the defendant's motion to dismiss; thereafter, the matter was tried to the jury; subsequently, the court denied the defendant's motion to dismiss or for a judgment of acquittal; verdict and judgment of guilty of breach of the peace in the second degree; thereafter, the court dismissed the charge of interfering with an officer, and the defendant appealed to this court. Affirmed.

          Deborah G. Stevenson, assigned counsel, for the appellant (defendant).

          Timothy F. Costello assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and John J. Davenport, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Sheldon and Devlin, Js.

          OPINION

          DiPENTIMA, C.J.

         The defendant, Mary E. Bagnaschi, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support her conviction, (2) the trial court improperly denied her request for a probable cause hearing, (3) the court improperly denied her motion to dismiss, which was based on her assertion that she was unlawfully arrested in her home without a warrant, (4) the court improperly violated her constitutional right to present a defense and (5) the court improperly failed to recuse itself. We disagree and, accordingly, affirm the judgment.

         The jury reasonably could have found the following facts. On May 16, 2013, John Silano took Jessica Rich, whom he considered to be his ‘‘daughter, '' and Rich's children, whom he considered to be his ‘‘grandchildren, '' to a frozen yogurt shop in Torrington.[1] As Silano, a longtime employee of the Torrington Housing Authority (authority), assisted the older grandchild into the car, he observed the defendant standing approximately twelve to fifteen feet away. Silano knew the defendant because she was a former employee of the authority.

         Silano stopped buckling his grandchild into her car seat as the defendant approached. Silano extended his hand to greet the defendant, who inquired as to Silano's well-being. Silano responded that he was ‘‘doing fine'' and asked how the defendant was. She responded, ‘‘I'm not doing well at all, the [authority] ruined my life, you ruined my life.'' At this point, the defendant, still grasping Silano's hand, stated with a raised voice: ‘‘[W]ell, fuck you, John, you ruined my fucking life, fuck you.'' Rich was ‘‘extremely alarmed'' by the defendant's actions.

         Rich loudly instructed Silano to get into the car as he attempted to extricate himself from the defendant's grasp. The volume of the defendant's voice caused the older grandchild to become upset and to cry. Silano freed himself from the defendant's grip. The defendant then proceeded to the passenger's side window, held up both middle fingers and yelled, ‘‘fuck you, fuck you, '' at Rich. Silano then entered the car and drove away as the defendant continued yelling.

         Silano travelled to his home and, after pulling into the driveway, the two adults began taking the grandchildren out of the car. The defendant drove her vehicle to the bottom of the driveway, lowered her window and again yelled at Silano. Specifically, she shouted: ‘‘[F]uck you, John, fuck you, look at me, call the police. I want a complete investigation of this.'' Silano and Rich took the grandchildren into the home and locked the door. The defendant remained for fifteen to thirty seconds before driving away.

         Silano called the police, and James Delay, a Torrington police officer, responded to Silano's home. After speaking to Delay about the incidents at the yogurt shop and his home, Silano indicated that he wanted to file a criminal complaint. Delay obtained a sworn, written statement from Silano. Delay then went to the defendant's residence to ‘‘get her side of the story'' and to arrest her, having determined that there was probable cause to do so.

         The defendant subsequently was charged with breach of the peace in the second degree and interfering with a police officer. Following a trial, the jury found the defendant guilty of breach of the peace in the second degree but not guilty of interfering with a police officer. The court rendered judgment in accordance with the jury's verdict and sentenced the defendant to six months incarceration, execution suspended, and two years of probation.[2] This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that there was insufficient evidence to support her conviction.[3] This claim includes two distinct, yet related components. First, the defendant argues that state's information and bill of particulars charged her with breach of the peace only as to the events at Silano's residence, where there was no physical contact between her and Silano. She further contends that shouting profanities from a distance amounted to constitutionally protected speech and did not rise to the level of ‘‘fighting words, ''[4] and therefore that the evidence was insufficient to convict her of breach of the peace in the second degree. Second, the defendant argues that even if the state's charging documents included the events at the frozen yogurt shop, the evidence was insufficient to support her conviction. We disagree.

         As a preliminary matter, we set forth our well established standard of review. ‘‘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. . . .

         ‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [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); State v. Gill, 178 Conn.App. 43, 47-48, 173 A.3d 998, cert. denied, 327 Conn. 987, 175 A.3d 44 (2017).

         Next, we identify the elements the state must prove beyond a reasonable doubt to convict an individual of breach of the peace in the second degree. Section 53a-181 (a) provides in relevant part: ‘‘A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . . For purposes of this section, ‘public place' means any area that is used or held out for use by the public whether owned or operated by public or private interests.''

         A

         We first consider the defendant's contention that the state's information and bill of particulars limited the scope of the prosecution to the events in front of Silano's home. Put another way, the defendant argues that the use of the events at the frozen yogurt shop constituted a material variance from the allegations in the operative information and bill of particulars. See, e.g., State v. Pettway, 39 Conn.App. 63, 80, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). We conclude that the defendant failed to sustain her burden of establishing prejudicial surprise as a result of the state's information and bill of particulars.

         The following additional facts are necessary for our discussion. In its initial short form information, the state charged the defendant with committing the offenses of breach of the peace in the second degree in violation of § 53a-181 and interfering with a police officer in violation of General Statutes § 53a-167a on or about May 16, 2013. On February 11, 2015, the defendant filed a motion for a bill of particulars.[5]

         Nearly one year later, on January 7, 2016, the state filed its bill of particulars. It provides in relevant part: ‘‘1. The defendant is charged with one count each of Breach of Peace in the Second Degree [in] violation of . . . § 53a-181 (a) (1) and one count of Interfering with an Officer in violation of . . . § 53a-167a. 2. The two charges occurred at or about May 16, 2013, at or about 8:15 p.m. The Breach of Peace Second Degree occurred at or near 260 Crestwood Road, Torrington, Connecticut . . . . 3. As it relates to the Breach of Peace in the Second Degree count; the defendant recklessly created a risk of inconvenience, annoyance or alarm towards John Silano in a public place. . . . 4. See #3 above. 5. See #2 above. 6. The names and addresses of all potential witnesses [have] been disclosed to the defendant in a separate pleading.'' On the same day, the state filed a long form substitute information essentially tracking the language set forth in its bill of particulars.

         The state subsequently filed an amended substitute information and a second amended substitute information on January 11, 2016, and January 12, 2016, respectively. The second amended substitute information charged the defendant, in relevant part, as follows: ‘‘That the said [defendant] did commit the crime of Breach of Peace in the Second Degree in violation of . . . § 53a-181 (a) (1), in that on or about May 16, 2013, at or about 8:15 p.m., at or near 260 Crestwood Road, Torrington, Connecticut, the said [defendant], recklessly created a risk of inconvenience, annoyance and alarm towards John Silano by engaging in violent, tumultuous and threatening behavior in a public place.''

         Contemporaneous with the state's filings, the defendant moved to dismiss the charges on January 11, 2016. Specifically, she asserted that there was insufficient evidence ‘‘to justify the bringing or continuing of such information or the placing of the defendant on trial.'' In the fact section of her supporting memorandum of law, the defendant recited the events of May 16, 2013, beginning at the frozen yogurt shop.

         Prior to the start of jury selection, the court, K. Murphy, J., heard argument on the defendant's motion to dismiss. At the outset of his presentation, defense counsel stated: ‘‘With regard to the breach of the peace charge, the allegation is that [the defendant] shook hands with the alleged victim, Mr. Silano, and stated that he had ruined her life. And then she used some language, that I care not to repeat on the record, but it was obscene language to Mr. Silano. And the allegation is, according to the police record, and according to Mr. Silano's statement, that she used that same phrase multiple times. . . . So, the evidence at a trial before a jury would fairly be the same; it would be that she shook hands with Mr. Silano, that she used foul language to Mr. Silano . . . . [T]hat, in and of itself, I would submit to the court, does not amount to a breach of the peace under the statute.'' (Emphasis added.) Defense counsel also argued that the words used by the defendant on May 16, 2013, did not qualify as ‘‘inconvenience, annoyance or alarm with respect to the breach of the peace.''

         In response, the prosecutor explained that the language used by the defendant constituted fighting words. Additionally the prosecutor argued: ‘‘But also if you look at the case law . . . it's not only the fighting words, but it's the physical contact, the refusal to let go of the handshake, and the other facts that arise around it between-by the fact that the family members, including young children, were present and the frightening behavior that caused annoyance and alarmto the people who were responsible for the care of those children.'' (Emphasis added.) The prosecutor subsequently emphasized the significance of the ...


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