State v. Winter

979 A.2d 608

117 Conn.App. 493

STATE of Connecticut v. Michael WINTER.

No. 26896.

Appellate Court of Connecticut.

Argued June 1, 2009.

Decided October 6, 2009.

Nina Trester-Cestaro, Danbury, for the appellant (defendant).

Timothy J. Sugrue, senior 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).

LAVINE, ROBINSON and SCHALLER, Js.

ROBINSON, J.

The defendant, Michael Winter, appeals from the judgments of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223, disorderly conduct in violation of General Statutes § 53a-182, falsely reporting an incident concerning serious physical injury or death in violation of General Statutes § 53a-180b and making a false statement in the second degree in violation of General Statutes § 53a-157b. On appeal, the defendant claims that the court improperly denied (1) his motion to dismiss the charge of criminal violation of a protective order and (2) his motion for a judgment of acquittal. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. A family violence protective order was issued on January 27, 2003, against the defendant at the request of Debra L. Thibault, his former girlfriend. He had continued to contact Thibault, primarily via e-mail, after their relationship ended, and she sent him a certified letter in June, 2002, which stated that on the basis of the advice she received from an officer at the Woodbury police department, she was asking him to stop contacting her. The defendant sent Thibault a letter despite her request, and she contacted the Woodbury police department. She also received numerous telephone calls and voicemail messages from the defendant in September, November and December, 2002, and a Christmas card from him in December. A warrant was issued for the defendant's arrest after Thibault filed a complaint after receiving the telephone calls from him.

As a result, the 2003 protective order was issued, which forbade the defendant from having any contact in any manner with Thibault and from coming within 100 yards of her.¹ In issuing the order, the court indicated that the defendant and the victim had been dating for one and one-half years. Despite the 2003 protective order being in place, the defendant was arrested a second time and charged with criminal violation of the protective order and stalking in the first degree after an incident on June 17, 2003, in which Thibault found the defendant standing in her driveway when she returned home from work that evening.²

In addition, on January 4, 2004, the defendant made a telephone call to 911 in which he reported that Thibault had called him and threatened to kill herself. He told the 911 dispatcher, located at the Litchfield barracks of the state police, what he claimed that Thibault had said to him. He stated: "I'm not sure if I've got a hoax going on here, or a problem, but at least, just to make sure, I'm calling you guys. I just got a call from my ex-girlfriend. Real quickly, she said, `This is [Thibault]. I'm thinking about killing myself unless I'm able to talk to you.' And she hung up on me. Now, she has a protective order on me where I cannot talk to her. I didn't say a word. She just hung up. I don't know if she's playing games or if she really is suicidal."

After receiving the telephone call from the defendant, Lawrence Rockhill, a Woodbury police officer, and Anthony Carter, a state police trooper, went to check on Thibault's well-being, while another trooper, Dane Hassan, interviewed the defendant. Thibault denied making any telephone call to the defendant and did not appear to Carter to be distressed or in a condition such that she might harm herself. After being interviewed by Hassan, the defendant signed a sworn statement attesting that he had received a telephone call from someone whom he believed to be Thibault and that that person told him that she was going to commit suicide and that he notified the authorities because he was worried about her.

Carter, who had just interviewed Thibault, then arrived and questioned the defendant. Hassan testified that the defendant incriminated himself by changing his story, by his body posture, by the fact that he used the past and present tense and by his agitation toward Thibault followed by his statements that he hoped that after this telephone call, she would call him and they could reconcile. As a result of this incident, the defendant was arrested and charged with criminal violation of a protective order, falsely reporting an incident concerning serious physical injury or death in violation of § 53a-180b, making a false statement in the second degree in violation of § 53a-157b and disorderly conduct in violation of § 53a-182 (a)(2).³

The charges against the defendant were consolidated and trial began on May 6, 2005. On June 7, 2005, the jury returned a verdict of not guilty on the charges of stalking in the first degree and one count of criminal violation of a protective order. The jury returned a verdict of guilty of disorderly conduct, falsely reporting an incident concerning serious physical injury or death making a false statement in the second degree and the second count of criminal violation of a protective order.⁴ The defendant filed an amended motion to dismiss on May 11, 2005, which the court denied orally on May 16, 2005.⁵ He filed a motion for a judgment of acquittal on June 14, 2005, and a motion for a new trial on June 14, 2005. The court denied these motions in a memorandum of decision issued on May 30, 2007. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his amended motion to dismiss. He asserts that the court did not have jurisdiction to issue the 2003 protective order because the situation did not involve family violence, his relationship with Thibault was not a recent one and the order was issued in connection with an unlawful arrest. We disagree.

The following additional facts are relevant to the resolution of the defendant's claim. The defendant filed an amended motion to dismiss on May 11, 2005, in which he alleged that he and Thibault had been in a relationship from January, 2001, through sometime in 2002, during which, at least part of that time, Thibault was still married. The defendant admitted to receiving a certified letter from Thibault in June, 2002, which was admitted as an exhibit at trial and which stated that she had attempted to end their relationship in the past few months before that date and was asking him again not to contact her by telephone, e-mail or in person or she would have no choice but to contact the police.

In the motion, the defendant claimed, among other things, that the count concerning the criminal violation of a protective order should be dismissed because the court lacked subject matter jurisdiction to issue the protective order, as there was no allegation that a "family violence crime" had occurred as defined by General Statutes § 46b-38a(1), nor were he and Thibault married or in a recent dating relationship, as required by General Statutes § 46b-38c.⁶ Similarly, he asserts that because there were no reported acts of physical violence or threats of physical violence, the court lacked the authority to issue the protective order and that the counts of the information involving a violation of the protective order should be dismissed because the protective order was transparently invalid. In conjunction with that claim, the defendant also asserts that his arrest on the 2003 charge of criminal violation of the protective order was invalid because the statute proscribing harassment in the second degree, General Statutes § 53a-183, with which he also had been charged, does not apply to cellular communications, and if he could not be arrested on a charge of violation of § 53a-183 that was based on his telephone calls to Thibault's cellular telephone, the subsequent protective order should not have been issued.

We first set forth the general legal principles governing our review of the denial of the defendant's motion to dismiss. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations." (Citations omitted; internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2009).

A

The defendant's assertion that the court "lacked jurisdiction" to issue the protective order is in actuality a challenge to the underlying factual findings made by the court in issuing the protective order and will be addressed as such. Substantively, it is not, as the defendant claims, a challenge to the court's jurisdiction. It is the substance and not the title of the claim that controls our analysis. See, e.g., State v. Peay, 96 Conn.App. 421, 436 n. 9, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006).

The court, in an oral decision denying the defendant's motion to dismiss, stated: "Reviewing all the facts and circumstances regarding issuance of the family violence protective order, the defendant has provided no persuasive evidence that the order lacked any pretense to validity at the time it was...