State v. Culver

904 A.2d 283

97 Conn.App. 332

STATE of Connecticut v. Michael F. CULVER.

No. 26018.

Appellate Court of Connecticut.

Argued April 27, 2006.

Decided September 5, 2006.

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Veronica Maria Tomasic, special public defender, for the appellant (defendant).

Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).

SCHALLER, HARPER and LAVINE, Js.

SCHALLER, J.

The defendant, Michael F. Culver, appeals from the judgment of conviction, rendered after a jury trial, of two counts of criminal violation of a restraining order in violation of General Statutes (Rev. to 2003) § 53a-223b. On appeal, the defendant claims that (1) his conviction under subdivisions (1) and (2) of subsection (a) of § 53a-223b violated the constitutional protection against double jeopardy, (2) subdivisions (1) and (2) of § 53a-223b (a) are unconstitutionally vague, and (3) the trial court improperly commented on the brevity of the trial. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have made the following findings of fact. The defendant and the victim, Dawn Castor, were involved in a dating relationship from February until July, 2002. On March 20, 2003, the victim obtained a temporary restraining order against the defendant, which subsequently was served on him. The restraining order provided in relevant part that the defendant "[r]efrain from coming within 100 yards" of the victim and "[r]efrain from having any contact in any manner" with the victim. At the victim's request, the restraining order was continued without modification for an additional six months following a hearing on April 2, 2003. At that hearing, the court specified that the restraining order prohibited contact "directly or indirectly or through others" and warned the defendant that "there are very serious consequences for violating court orders . . . including the potential for incarceration."

On the afternoon of April 11, 2003, the victim left her place of employment and drove to a nearby McDonald's restaurant. As she entered the drive-through lane, the defendant drove his vehicle alongside the passenger side of her vehicle.¹ As the victim drove forward, the defendant blocked her vehicle between the curb and his vehicle. The defendant approached the passenger side of her vehicle and attempted to open her door. He stated repeatedly, "I just want to talk to you."

While the defendant remained outside of his vehicle, the victim was able to maneuver and exit from the drive-through lane. She drove to the Waterbury police department and relayed the events that had transpired to the officer on duty, Anthony Tito. Tito verified that the victim had obtained a restraining order against the defendant. Soon thereafter, the defendant entered the police station and admitted that he had blocked the victim's vehicle at the restaurant and that he had attempted to engage her in conversation. The defendant further acknowledged that he was aware of the restraining order issued against him and that he had violated it. As a result, Tito placed the defendant under arrest.

The defendant was charged with three counts of criminal violation of a restraining order, one count of unlawful restraint and one count of disorderly conduct. Following a jury trial, the defendant was convicted of two counts of criminal violation of a restraining order and acquitted of all other charges. The court imposed a total sentence of one year and nine months incarceration. This appeal followed.² Additional facts will be set forth where necessary.

I

The defendant first claims that his conviction under subdivisions (1) and (2) of subsection (a) of § 53a-223b violated the constitutional protection against double jeopardy. The defendant concedes that he did not raise his claim at trial and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ We grant review because the record is adequate for review and the claim is of constitutional magnitude.⁴ We conclude however, that a constitutional violation does not clearly exist and that the defendant was not deprived of a fair trial.⁵

We begin by noting that "[b]ecause the claim presents an issue of law, our review is plenary." (Internal quotation marks omitted.) State v. Brooks, 88 Conn.App. 204, 214, 868 A.2d 778, cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005). The double jeopardy clause of the fifth amendment to the United States constitution provides in relevant part: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ." The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). "The fifth amendment's prohibition of double jeopardy protects persons against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense in a single trial." State v. Brooks, supra, at 214-15, 868 A.2d 778.

The defendant's claim that he was convicted improperly of criminal violation of a restraining order under § 53a-223b (a)(1) and (2) falls within the double jeopardy protection against the imposition of multiple punishments for the same offense in a single trial. "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . [T]he issue, though essentially constitutional, becomes one of statutory construction." (Citations omitted; internal quotation marks omitted). State v. D'Antonio, 274 Conn. 658, 715-16, 877 A.2d 696 (2005). There is no dispute in this case that the charges against the defendant were the result of the same incident. Our inquiry, therefore, is limited to whether the offenses charged are the same offense for the purposes of the double jeopardy clause.

The defendant argues that § 53a-223b prohibits a "course of action" and that, as a result, subdivisions (1) and (2) of subsection (a) delineate alternative ways of violating the statute and not separate offenses.⁶ The defendant asserts that subdivisions (1) and (2) are not distinct because the terms "stay away from" and "contact," as used within the subdivisions, can be construed as "synonymous." Essentially, the defendant contends that he was subjected to multiple punishments for the same act and that the legislature specifically did not authorize separate punishments under each subdivision. The state counters that § 53a-223b (a)(1) and (2) are distinct provisions. As a result, according to the state, the defendant's conduct constituted two independent offenses, and, therefore, his conviction did not violate the prohibition against double jeopardy. We agree with the state.

"The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial." (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990); State v. Denson, 67 Conn.App. 803, 808-809, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002).⁷ Under the Blockburger test, "a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other." State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983). "The term `element' as used in the Blockburger analysis . . . means any fact that the legislature has deemed essential to the commission of the crime." State v. Woodson, 227 Conn. 1, 10, 629 A.2d 386 (1993).

In reviewing § 53a-223b and the state's long form information, we note that the crimes of criminal violation of a restraining order in violation of § 53a-223b (a)(1) and (2) each clearly require proof of an element that the other does not.⁸ In order to convict the defendant under § 53a-223b (a)(1), the state had to prove, as alleged in count two of the state's long form information, that a restraining order had been issued against him pursuant to General Statutes § 46b-15,⁹ that he knew of the existence of the restraining order and its terms, and that he did not stay away from the victim. In order to convict the defendant under § 53a-223b (a)(2), the state had to prove, as alleged in count three of the long form information, that a restraining order had been issued against him pursuant to § 46b-15, that he knew of the existence of the restraining order and its terms, and that he contacted the victim.

We conclude that the terms "stay away from," as used in subdivision (1), and "contact," as used in subdivision (2), denote separate and distinct conduct. "Stay away from" suggests physical proximity or spatial nearness. Indeed, the restraining order issued against the defendant is framed in spatial terms in that it ordered the defendant to "[r]efrain from coming within 100 yards" of the victim. Additionally, we note that Random House Webster's Unabridged Dictionary (2d Ed.2001) provides "to stop or halt" as one...