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State v. Taveras

Court of Appeals of Connecticut

July 17, 2018

STATE OF CONNECTICUT
v.
KERLYN M. TAVERAS

          Argued January 16, 2018

         Procedural History

         Three substitute informations charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Danbury, geographical area number three, where the cases were consolidated and tried to the court, Russo, J.; judgments revoking the defendant's probation, from which the defendant appealed to this court; thereafter, the court, Russo, J., issued an articulation of its decision. Reversed; judgments directed.

          James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese L. Hodge, assistant state's attorney, for the appellee (state).

          Sheldon, Elgo and Eveleigh, Js.

          OPINION

          EVELEIGH, J.

         The defendant, Kerlyn M. Taveras, appeals from the judgments of the trial court finding him in violation of his probation and revoking his probation pursuant to General Statutes § 53a-32, following his arrest on a charge of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1).[1] On appeal, the defendant claims that the state adduced insufficient evidence at his probation revocation hearing to establish a violation of probation.[2] Central to the defendant's claim of insufficient evidence is whether the words he used spontaneously to express his frustration with his child's preschool staff, which formed the basis for his violation of probation, constituted ‘‘fighting words'' or a ‘‘true threat, '' two forms of speech that are not protected by the first and fourteenth amendments to the United States constitution.[3] Under the facts and circumstances of the present case, we conclude that the defendant's speech did not constitute ‘‘fighting words'' or a ‘‘true threat'' and, for that reason, cannot be proscribed by § 53a-181 (a) consistent with the first amendment. We therefore agree with the defendant that the evidence adduced at his probation revocation hearing was insufficient to establish a violation of probation and, accordingly, reverse the judgments of the trial court and remand the cases with direction to render judgments in favor of the defendant.[4]

         The following evidence, as adduced at the defendant's probation revocation hearing, is relevant to our resolution of this appeal. In May, 2012, in connection with three separate criminal matters, the defendant pleaded guilty to two counts of threatening in the second degree in violation of General Statutes § 53a-62 and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). After accepting the defendant's pleas, on August 22, 2012, the trial court sentenced the defendant to a total effective term of one year of incarceration, execution suspended after four months, followed by three years of probation. Following his sentencing, the defendant agreed to the standard conditions of probation, including the condition that he ‘‘not violate any criminal law of the United States, this state or any other state or territory.'' The defendant's term of probation began on July 1, 2013.

         On the afternoon of March 11, 2014, the defendant was late for his child's scheduled pickup time at the Head Start Program (Head Start), a preschool in Dan-bury. Head Start staff telephoned the defendant, who was en route, to ascertain where he was and whether he would be picking up his child.[5] The defendant arrived approximately forty minutes late and was reminded by staff that he needed to pick his child up on time. The defendant appeared ‘‘a little irritated and [un]happy'' with staff as he walked to his child's classroom. As the defendant was exiting the building with his child, he argued with staff in the lobby in front of other children and their parents, and was asked to leave. After the defendant walked through the building's inner set of doors, [6] Sondra Cherney, Head Start's assistant education manager, ‘‘said something back to him . . . .'' In response, the defendant said to Cherney, ‘‘you better watch yourself, you better be careful, '' attempted to reenter the building, which was locked, and then left.

         Thereafter, Cherney called Monica Bevilaqua, Head Start's director, and reported the incident. Bevilaqua was not present when the incident occurred, but after having an opportunity to hear from her staff, she called the Danbury Police Department. Danbury police officers responded to the preschool and took statements from Bevilaqua, [7] Cherney, and other staff members. The next morning, the defendant appeared voluntarily at the Danbury Police Department, where he was arrested and charged with breach of the peace in the second degree.

         Christopher Kelly, the defendant's probation officer, was aware of the March 11, 2014 incident and the defendant's subsequent arrest, but chose not to charge him with violation of probation on that basis at that time. Thereafter, on April 16, 2014, in an unrelated incident, the defendant was arrested and charged with violation of a protective order. The next day, Kelly applied for a violation of probation warrant on the basis of both the March 11, 2014 incident and the April 16, 2014 arrest. On May6, 2014, the defendant was arrested and charged in three separate informations, brought pursuant to § 53a-32, [8] with violating the condition of his probation that he ‘‘not violate any criminal law . . . .''[9]

         The trial court held a hearing on July 15 and July 16, 2015. The state's theory of the case was that on March 11, 2014, the defendant committed a breach of the peace in the second degree in violation of § 53a-181 (a) (1) on the basis of his ‘‘threatening and violent behavior'' with staff, which ‘‘place[d] them in fear and panic.''[10]See footnote 1 of this opinion. The state, however, did not offer the testimony of Cherney or any other staff member who witnessed the incident. Furthermore, the state did not attempt to introduce any witness statements taken by Danbury police officers. Instead, the state relied solely on the testimony of Kelly and Bevilaqua. Kelly testified regarding the dates and conditions of the defendant's probation. Kelly further testified that he reviewed the police report regarding the March 11, 2014 incident, but that he did not initially charge the defendant with violating his probation on the basis of that incident because the resulting charge was a misdemeanor and he had ‘‘had a discussion with [his] supervisor to give [the defendant] a second chance.'' At the conclusion of Kelly's testimony, the violation of probation warrant that he drafted was admitted as a full exhibit.[11]

         Over the hearsay objections of defense counsel, Bevilaqua testified regarding Cherney's summary of the March 11, 2014 incident. Specifically, the state elicited the following testimony:

‘‘[The Prosecutor]: What . . . was the nature of the [March 11, 2014] incident reported to you on that telephone call [with Cherney]? . . .
‘‘[The Witness]: . . . That [the defendant's child] had not been picked up on time. That [staff] called [the defendant]. [The defendant] was coming down. He was not happy. When he had gotten to the school, he entered the doorway, already escalated. . . . [H]e walked down to the classroom to get [his child]. When he came back down the hallway and got to the doors he had words with staff members.
‘‘[The Prosecutor]: Threatening words? . . .
‘‘[The Witness]: At that point they were not.
‘‘[The Prosecutor]: Okay.
‘‘[The Witness]: But they continued. . . .
‘‘[The Witness]: So, he got out the front door, door shut behind him, and [Cherney] had said something back to him, and he turned and said, you better watch yourself, you better be careful, tried to get back in the door and couldn't, and then he left.''

         In addition, Bevilaqua testified that there had been prior incidents at the preschool involving late pickups of the defendant's child and that her staff was familiar with the defendant. Bevilaqua further testified that this was not the first ‘‘escalated interaction'' with the defendant and that she had previously witnessed the defendant behave in a threatening manner. Although the state attempted to elicit testimony detailing these prior interactions, it later abandoned that line of questioning upon objection by defense counsel.

         In an oral ruling, the trial court found that the state established, by a preponderance of the evidence, that the defendant had violated his probation by committing the crime of breach of the peace in the second degree on the basis of his ‘‘threatening nature and . . . demeanor'' at the preschool. As a result of this violation, the court revoked the defendant's probation and sentenced him to a total effective term of eighteen months incarceration. This appeal followed. Additional facts will be set forth as necessary.

         On appeal, the defendant claims that the evidence presented at his probation revocation hearing was insufficient to support the trial court's finding that he violated his probation by committing the crime of breach of the peace in the second degree. In support of his claim, the defendant primarily argues that the evidence was insufficient to support a finding that his conduct, which consisted solely of speech, constituted fighting words or a true threat and, therefore, cannot be proscribed by statute consistent with the first amendment. In response, the state contends that the defendant's first amendment claim is ‘‘unfounded'' and, furthermore, that it presented sufficient evidence to support the trial court's finding. We agree with the defendant.

         We begin by setting forth our standard of review and the legal principles applicable to probation revocation hearings. ‘‘[R]evocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with a distinct purpose. . . . In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. . . . In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . .

         ‘‘Because the present case concerns the evidentiary phase and the trial court's factual finding that the defendant violated his probation, we are guided by the standard of review applicable to that phase. The law governing the standard of proof for a violation of probation is well settled. . . . [A]ll that is required in a probation violation proceeding is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation. . . . It is also well settled that a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing-that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. . . . In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Accordingly, [a] challenge to the sufficiency of the evidence is based on the court's factual findings. The proper standard of review is whether the court's findings were clearly erroneous based on the evidence. . . . A court's finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court's finding of fact] . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Citations omitted; internal quotation marks omitted.) State v. Maurice M., 303 Conn. 18, 25-27, 31 A.3d 1063 (2011); see also State v. Davis, 229 Conn. 285, 301-302, 641 A.2d 370 (1994).

         In citing to cases involving criminal prosecutions hereafter, we acknowledge that a probation revocation hearing is not a criminal proceeding, but, instead, ‘‘akin to a civil proceeding''; State v. Davis, supra, 229 Conn. 295; and that ‘‘[a]lthough the revocation may be based upon criminal conduct, the constitution does not require that proof of such conduct be sufficient to sustain a criminal conviction.'' (Internal quotation marks omitted.) State v. Benjamin, 299 Conn. 223, 235, 9 A.3d 338 (2010); see also State v. Megos, 176 Conn.App. 133, 139, 170 A.3d 120 (2017). Nevertheless, ‘‘there must be proof that the defendant's conduct constituted an act sufficient to support a revocation of probation . . . .'' (Internal quotation marks omitted.) State v. Carey, 30 Conn.App. 346, 349, 620 A.2d 201 (1993), rev'd on other grounds, 228 Conn. 487, 636 A.2d 840 (1994); Payne v. Robinson, 10 Conn.App. 395, 402-403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 230 (1988). Therefore, as in the present case, when the defendant is charged with violation of probation on the basis of an alleged violation of a criminal law, the conduct forming the basis of that violation of probation must meet the elements of the relevant crime. The cases involving criminal prosecutions are therefore relevant qualitatively, in determining the nature of the alleged conduct at issue.[12]

         In the present case, the state charged the defendant with violating § 53a-181 (a) (1) and, on appeal, claims § 53a-181 (a) (3) as an alternative ground for affirmance. See footnote 1 of this opinion. In order to establish a violation of § 53a-181 (a) (1) at a probation revocation hearing, the state must prove, by a preponderance of the evidence, that ‘‘(1) the defendant engaged in fighting or in violent, tumultuous or threatening behavior, (2) this conduct occurred in a public place and (3) the defendant acted with the intent to cause inconvenience, annoyance or alarm, or that he recklessly created a risk thereof.'' (Internal quotation marks omitted.) State v. Adams, 163 Conn.App. 810, 822, 137 A.3d 108 (2016), rev'd in part on other grounds, 327 Conn. 297, 173 A.3d 943 (2017); see General Statutes § 53a-181 (a) (1).

         ‘‘Our Supreme Court, in order to ascertain the meaning of § 53a-181 (a) (1), looked to the construction given by this court in State v. Lo Sacco, 12 Conn.App. 481, 490, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987), to identical language contained in General Statutes § 53a-181a (a) (1), the public disturbance statute. See State v. Szymkiewicz, [237 Conn. 613, 618, 678 A.2d 473 (1996)].'' (Internal quotation marks omitted.) State v. Adams, supra, 163 Conn.App. 823. In State v. Lo Sacco, supra, 481, this court stated that ‘‘ ‘[t]hreatening' is defined as a ‘promise [of] punishment' or, ‘to give signs of the approach of (something evil or unpleasant).' [Webster, Third New International Dictionary.] . . . When, [however] two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. . . . Placed within the context of the other words in the statute, the word ‘threatening' takes on a more ominous tone. The statute proscribes ‘engaging in fighting or in violent, tumultuous, or threatening behavior.' In State v. Duhan, [38 Conn.Supp. 665');">38 Conn.Supp. 665, 668, 460 A.2d 496 (1982), rev'd on other grounds, 194 Conn. 347, 481 A.2d 48 (1984)], the Appellate Session of the Superior Court defined ‘tumultuous' as ‘riotous' and ‘turbulent.' Fighting, by its plain meaning, involves physical force. . . . [T]he language of subdivision (1) of General Statutes § 53a-181a (a) involved in this case, namely, ‘violent or threatening behavior,' evinces a legislative intent to proscribe conduct which actually involves physical violence or portends imminent physical violence.'' (Citations omitted.) State v. Lo Sacco, supra, 490-91.

         Likewise, to establish a violation of § 53a-181 (a) (3), the state must prove, by a preponderance of the evidence, that the defendant ‘‘(1) threatened to commit a crime against another person or that person's property; (2) with the intent to cause a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.'' (Internal quotation marks omitted.) State v. DeLoreto, 265 Conn. 145, 159, 827 A.2d 671 (2003); see General Statutes § 53a-181 (a) (3). With the foregoing factual background and legal principles in mind, we turn to the parties' arguments.

         I

         We first address the state's assertion, and the dissent's position, that the defendant's first amendment right was not implicated in the present case because the trial court reasonably could have concluded that the defendant violated his probation on the basis of his conduct rather than his speech. Specifically, the state, relying on State v. Simmons, 86 Conn.App. 381, 861 A.2d 537 (2004), cert. denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, 546 U.S. 822, 126 S.Ct. 356, 163 L.Ed.2d 64 (2005), argues that the defendant's ‘‘[threat] . . . [was] simply a component of his disruptive and aggressive conduct while the preschool was still in session.'' We are not persuaded.

         In State v.Simmons, supra, 86 Conn.App. 384, the defendant assembled an obstacle blocking the path of public travel around the perimeter of Bradley International Airport in Windsor Locks. The obstacle was discovered by members of the Connecticut Army National Guard while conducting a routine security patrol around the perimeter of the airport. See id. The defendant ‘‘[aggressively] approached [the guardsmen's] vehicle . . . flailing his arms and yelling. When [he reached] the truck, he shouted profanities at the guardsmen; he told them that they were on his property and that military personnel did not belong there.'' Id. As a result of this incident, the defendant was charged with, and subsequently convicted of, breach of the peace in the second degree. See id., 382. In affirming the judgment of the trial court, this court concluded that (1) the evidence was sufficient to convict the defendant of breach of the peace in the second ...


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