State v. Thomas S.

222 Conn.App. 201

304 A.3d 513

STATE of Connecticut v. THOMAS S.^*

AC 45104

Appellate Court of Connecticut.

Argued September 7, 2023

Officially Released October 31, 2023

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, North Haven, for the appellant (defendant).

Brett R. Aiello, assistant state's attorney, with whom, on the brief, were David R. Applegate, state's attorney, and Kristin Chiriatti, assistant state's attorney, for the appellee (state).

Prescott, Clark and Bear, Js. ^**

PRESCOTT, J.

The defendant, Thomas S., appeals from the judgment of conviction, rendered following a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223. ¹ On appeal, the defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he had the requisite intent to violate the protective order. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are pertinent to this appeal. On January 28, 2019, the trial court issued a criminal protective order identifying P, a person formally romantically involved with the defendant, as the protected person and the defendant as the respondent. The protective order instructed the defendant to "not assault, threaten, abuse, harass, follow, interfere with, or stalk the protected person"; to "[s]tay away from the home of the protected person and wherever the protected person shall reside"; and to "not contact the protected person in any manner, including by written, electronic or telephone contact, and [to] not contact the protected person's home, workplace or others with whom the contact would be likely to cause annoyance or alarm to the protected person." Additionally, the order permitted the defendant to "return to [P's] home one time with police to retrieve [his] belongings."

Prior to the issuance of the protective order, the defendant and P lived together in a home owned by P. P worked at a liquor store in Fairfield County (liquor store) that she owned. ² The relationship between the defendant and P eventually began to deteriorate. The defendant became abusive toward P, including incidents in which he was verbally abusive, intimidated P, and broke P's belongings. As a result of these incidents, P filed an application for an ex parte restraining order against the defendant in family court, which was granted on January 25, 2019.

The defendant subsequently was arrested for threatening in the second degree and criminal violation of a restraining order after threatening to kill P following the issuance of the ex parte restraining order. As a result of this arrest, the court issued the criminal protective order now at issue. As previously discussed, although the protective order ordered the defendant to stay away from P's home, it permitted him to visit her home once with a police escort in order to collect his personal belongings. P instead tried to arrange for the defendant's father or sister to pick up the defendant's personal belongings from the liquor store. ³

On February 5, 2019, at around 4 p.m., the defendant contacted the local police department (department) to arrange for a police escort to accompany him to the liquor store to pick up his personal belongings. ⁴ Sergeant Chris McManus received the dispatch assigning him to escort the defendant into the liquor store. Pursuant to department protocol, he first conducted a records search to determine whether there were any pertinent protective orders issued against the defendant. Although McManus discovered the ex parte civil restraining order through this search, McManus did not discover the criminal protective order against the defendant. ⁵

The defendant and a friend drove to the liquor store in a pickup truck. On arrival, rather than wait for the police escort to arrive, the defendant entered the business alone. P was not present at the liquor store when the defendant arrived. R, an employee of the liquor store, observed the defendant turn off the inside security camera immediately after the defendant entered the store. The defendant then proceeded to take money from the cash register, while telling R not to call P and not to try to stop him. Additionally, the defendant took several packs of cigarettes from behind the register and tools from the back room of the store. R felt "nervous," "cornered," "scared," and "panick[ed]," and "froze" upon being confronted by the defendant. The defendant then began to fill several empty bins with bottles of alcohol from the liquor store's shelves. The defendant appeared aggressive and angry as he did so. A man who worked next door entered the liquor store, and R signaled for him to call P and inform her about what was happening.

Shortly thereafter, McManus arrived at the liquor store. After McManus entered the liquor store, the defendant began to load his personal belongings, the bins containing the bottles of alcohol, ⁶ the packs of cigarettes and the tools taken from the back room of the liquor store into the pickup truck. Both R and McManus aided the defendant in loading the truck. ⁷ R then received a call from P, who told him that she was on her way back to the store. When McManus learned that P was on her way back to the liquor store, he instructed the defendant to finish loading the items quickly and leave before P returned.

After the defendant left the liquor store parking lot, P arrived. When McManus greeted P in her car upon her arrival, she appeared very "angry," "upset," "annoyed," and "alarmed," and "there was fear in her face and in her voice." P then entered the store and, after seeing what had been taken, dropped to her knees crying. Because R appeared "shaken" and "traumatized" to P, she sent him home. After assessing the store's inventory and confirming what the defendant had taken, P informed McManus that everything that the defendant had taken, except the box of his personal belongings, belonged to her.

McManus called the defendant to direct him to return the items he had taken. McManus eventually was able to arrange for the return of most of the items taken, except for a partially empty bottle of alcohol and several packs of cigarettes. At McManus’ direction, a third party, the driver of the pickup truck, rather than the defendant, returned the remaining items to the liquor store.

The defendant was arrested and charged with larceny in the sixth degree on March 7, 2019. After the defendant's arrest, the state filed several substitute informations adding the additional charges of burglary in the third degree, criminal trespass in the second degree, and criminal violation of a protective order. ⁸ The trial began on February 11, 2020. At trial, the state argued that the defendant had violated the protective order by deliberately going to P's workplace and by deliberately confronting P's employee in a manner likely to cause annoyance or alarm to P. In response, the defendant, who was self-represented, alleged that he acted with the intent to comply with the protective order. On February 28, 2020, the jury found the defendant guilty of criminal violation of a protective order. ⁹ On December 3, 2020, the trial court, D'Andrea, J. , sentenced the defendant to eight years of incarceration, followed by two years of special parole. This appeal followed.

I

The defendant claims on appeal that his conviction of criminal violation of a protective order must be reversed because the state failed to present sufficient evidence to prove beyond a reasonable doubt that the defendant had the necessary intent to violate the protective order. We are not persuaded.

Before we turn to the defendant's claim, we first address a potential issue resulting from the manner in which the state drafted the operative information. The protective order prohibits the defendant from "contact[ing] the protected person's home, workplace or others with whom the contact would be likely to cause annoyance or alarm to the protected person." (Emphasis added.) In the long form information, however, the state charged the defendant with violating the protective order "[b]y going to [P's], the protected person's, workplace and , thereat, creat[ing] contact likely to cause annoyance and alarm to said protected person, in violation of ... § 53a-223." (Emphasis added.)

Although the information charges the defendant with only one count of criminal violation of a protective order in violation of § 53a-223, the evidence presented at trial in this case supports multiple, separate incidents of conduct in violation of the protective order. At trial, the state argued to the jury that the defendant had violated the protective order (1) by going to P's workplace and (2) by contacting another person, R, because such contact with him would be likely to cause annoyance or alarm to P. The court gave the jury the following instructions: "The defendant is charged with violating the provision [of the protective order] that states, do not contact the protected person's workplace or others with whom the contact would be likely to cause annoyance or alarm to the protected person." (Emphasis added.) No specific unanimity instructions were given to the jury. ¹⁰

Our Supreme Court has held that "a single count of an information that charges a defendant with a single statutory violation is duplicitous when evidence at trial supports multiple, separate incidents of conduct, each of which could independently establish a violation of the charged statute." State v. Joseph V. , 345 Conn. 516, 521, 285 A.3d 1018 (2022), citing State v. Douglas C. , 345 Conn. 421, 445–47, 285 A.3d 1067 (2022). "In the absence of a specific unanimity instruction to the jury ... such a count violates a defendant's constitutional right to jury unanimity and requires the reversal of the judgment of conviction if it creates the risk that the defendant's conviction...