January 16, 2018
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
B. Streeto, senior assistant public defender, for the
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.
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). On appeal, the defendant claims
that the state adduced insufficient evidence at his probation
revocation hearing to establish a violation of
probation. 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. 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.
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.
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. 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,  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
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,  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.
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,  with violating the
condition of his probation that he ‘‘not violate
any criminal law . . . .''
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.''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.
the hearsay objections of defense counsel, Bevilaqua
testified regarding Cherney's summary of the March 11,
2014 incident. Specifically, the state elicited the following
‘‘[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.''
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.
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.
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.
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. . . .
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
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.
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).
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.
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.
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.
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 ...