State v. Cody M. ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE v. CODY M.—CONCURRENCE AND DISSENT
ECKER, J., with whom McDONALD, J., joins, concur-
ring in part and dissenting in part. I agree with the
majority that multiple, distinct acts constitute separate
violations of a standing criminal protective order, con-
trary to General Statutes § 53a-223a.1 I disagree, how-
ever, that the statements made in the present case by
the defendant, Cody M., were separate and distinct acts.
The record reflects that the defendant’s statements
were uttered within seconds of each other in a continu-
ous and uninterrupted stream of contact with the vic-
tim. In my view, there was neither an intervening event
between the defendant’s statements nor a change in
the defendant’s intent; his statements concerned the
same general subject matter and were undertaken with
a singular purpose. The defendant therefore committed
only a single violation of the standing criminal protec-
tive order, for which he may be punished only once
under the double jeopardy clause. Accordingly, I
respectfully dissent from part I B of the majority opin-
ion. I agree with the majority that any alleged error in
the jury instruction on the definition of ‘‘harassing’’ was
harmless and, therefore, join part II of the majority
opinion.
The record reflects that there was a valid standing
criminal protective order, which prohibited the defen-
dant from, among other things, (1) ‘‘assault[ing], threat-
en[ing], abus[ing], harass[ing], follow[ing], interfer[ing]
with, or stalk[ing]’’ the victim, or (2) ‘‘contact[ing] the
[victim] in any manner . . . .’’ On September 1, 2015,
the defendant was in the custody of the Department
of Correction, which transported the defendant to a
juvenile court proceeding regarding his children with
the victim. Despite the existence of a formal court order
prohibiting the defendant from contacting the victim,
except as ‘‘allowed for purposes of visitation, as
directed by [the] family court,’’ he was placed in a seat
at the same table as the victim in the courtroom, with
nothing but one empty chair between them. At some
point during the proceeding, the defendant began ‘‘try-
ing to make small talk’’ with the victim. Specifically,
the defendant whispered to the victim that he still loved
her and asked her why she had a block on her phone.
The defendant also reminded the victim that she had
said she ‘‘would never do this to him . . . .’’ The victim
‘‘just ignored’’ the defendant and kept her eyes focused
on the trial judge. The defendant’s ‘‘tone changed,’’ and
he told the victim that she was ‘‘going to have problems’’
when he got ‘‘home, bitch,’’ which ‘‘caught [the victim’s]
attention . . . .’’ The victim looked at the defendant,
who mouthed ‘‘that he was going to fucking kill’’ her.
The victim responded by saying ‘‘stop threatening me,
I can hear you . . . .’’ The defendant replied ‘‘I didn’t
or I’m not.’’ One of the attorneys informed the trial
judge that the defendant was ‘‘speaking to the [victim]
while Your Honor is presiding.’’ The trial judge admon-
ished the defendant that ‘‘this is not the time for visit[a-
tion] or socialization.’’
On the basis of his in-court statements to the victim,
the defendant was charged with two counts of violating
a standing criminal protective order under § 53a-223a
and one count of threatening under General Statutes
(Rev. to 2015) § 53a-62 (a) (2). Specifically, count one
charged the defendant with violation of a standing crim-
inal protective order ‘‘by having contact with’’ the vic-
tim, count two charged the defendant with violation of
a standing criminal protective order ‘‘by threatening
and harassing’’ the victim, and count three charged the
defendant with threatening the victim. The defendant
also was charged, in count four of the information, with
a second count of threatening on the basis of threats
he made to the victim outside of the courtroom after
the conclusion of the juvenile court proceeding. The
jury found the defendant guilty of all of the crimes
charged. The trial court sentenced the defendant to five
years of incarceration on the first count of violation of a
standing criminal protective, followed by a consecutive
sentence of three years of incarceration and seven years
of special parole on the second count of violation of a
standing criminal protective order. The trial court also
imposed two concurrent one year terms of incarcera-
tion on the threatening counts, to be served concur-
rently with the first count of violation of a standing
criminal protective order. Thus, the total effective sen-
tence was eight years of incarceration followed by
seven years of special parole.
On appeal, the defendant claims that, on these facts,
his conviction under counts one and two of two offenses
under the same statutory provision, § 53a-223a, violates
his constitutional right to be free from double jeopardy.
As the majority rightly points out, ‘‘[t]he proper double
jeopardy inquiry when a defendant is convicted of multi-
ple violations of the same statutory provision is whether
the legislature intended to punish the individual acts
separately or to punish only the course of action which
they constitute.’’ (Emphasis omitted; internal quotation
marks omitted.) Part I of the majority opinion, quoting
State v. Garvin, 242 Conn. 296, 304, 699 A.2d 921 (1997).
Thus, to resolve the issue on appeal, we must ‘‘deter-
mine the ‘unit of prosecution’ intended by the legislature
in enacting § 53a-223a.’’
I agree with the majority that, in enacting § 53a-223a,
the legislature intended ‘‘to permit criminal liability for
each discrete act in violation’’ of a standing criminal
protective order. I further agree with the majority that,
to determine whether the defendant’s statements con-
stituted a single act or multiple acts, we should consider
the following factors: ‘‘(1) the amount of time separating
the acts; (2) whether the acts occurred at different
locations; (3) the defendant’s intent or motivation
behind the acts; and (4) whether any intervening events
occurred between the acts, such that the defendant had
the opportunity to reconsider his actions.’’ (Internal
quotation marks omitted.) Part I B of the majority opin-
ion, quoting State v. Ruiz-Pacheco, 336 Conn. 219, 241,
244 A.3d 908 (2020). Our agreement ends, however,
with the application of these factors, which leads the
majority to conclude that the defendant’s statements
during the juvenile court proceeding can be separated
into multiple, discrete acts. Instead, given the proximity
in time and space, the defendant’s singular intent, and
the lack of any intervening events between the defen-
dant’s statements, it is clear to me that the defendant
committed a single violation of the standing criminal
protective order under § 53a-223a.
It is undisputed that the first and second factors in
the analysis, namely, the amount of time separating the
defendant’s statements and the location where they
were uttered, favor the defendant. The defendant and
the victim were seated in the same place in the court-
room throughout the encounter. The amount of time
between the defendant’s initial statements and his
threatening statements was extremely brief. Indeed, as
the trial court observed, ‘‘this is a trial about what hap-
pened in the course of about ten seconds.’’ These fac-
tors are not dispositive, of course, because spatial and
temporal proximity alone do not always trigger a double
jeopardy violation. ‘‘[D]istinct repetitions of a prohib-
ited act, however closely they may follow each other
. . . may be punished as separate crimes without
offending the double jeopardy clause.’’ (Citation omit-
ted; internal quotation marks omitted.) State v.
Miranda, 260 Conn. 93, 122, 794 A.2d 506, cert. denied,
537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).
But the immediate proximity of the statements in place
and time are an important part of any analysis turning
on discreteness and severability, and the fact that the
statements were made during a brief and uninterrupted
verbal contact with the victim strongly supports the
conclusion that the defendant committed a single viola-
tion of the standing criminal protective order rather
than two separate violations.
The third and fourth factors only bolster this conclu-
sion. I reject the majority’s characterization of the vic-
tim’s silence as an ‘‘intervening event’’ that separated
the defendant’s initial affectionate statements from the
threatening statements that followed immediately
thereafter. To begin with, the victim’s response—
whether silent or spoken—strikes me as a red herring
in this particular context. The defendant’s verbaliza-
tions to the victim over a ten second time span consti-
tuted one act or transaction, whether delivered as a
monologue or part of a dialogue, in the same way that
a single, short telephone call from the defendant to
the victim would have been one act or transaction,
regardless of the parties’ speaking roles. If the majori-
ty’s analysis is sustainable, it must explain why its logic
would not subject a defendant to multiple violations of
§ 53a-223a (perhaps many, if the communication con-
sisted of a back and forth dialogue) for a single, short
telephone call consisting of content similar to that
occurring here. I believe that an unacceptable degree
of arbitrariness enters the analysis when the number
of criminal violations depends on the speaker’s punctu-
ation choices, sentence or paragraph structure, or the
conversational turns occurring in a brief, uninterrupted
communication.
Moreover, even if such considerations were appro-
priate in the present context, it is more accurate, in my
view, to characterize the victim’s silence as a nonevent,
or perhaps a continuation of the same event, rather
than an intervening event in these circumstances. The
victim did nothing and said nothing. There was no
change of location or alteration of any other objective
condition that would fit our normal understanding of
what constitutes an intervening event. Silence, of
course, can mean many different things, and the victim’s
failure to respond clearly meant something to the defen-
dant, but it changed nothing except his emotional strata-
gem; he quickly replaced affectionate overtures with
angry threats in his effort to persuade the victim to
unblock his phone calls. The fact is that nothing hap-
pened between the defendant’s initial statements and
his threatening statements—nothing was said and noth-
ing was done by the victim or anyone else in the court-
room. I am unaware of any case law, and the majority
has cited none, holding that silence or inaction is an
intervening event in the double jeopardy context.2
This brings me to the final factor on which the major-
ity relies—its perception of a change in the defendant’s
intent. This point, in my estimation, confuses the defen-
dant’s singular intention during the prohibited con-
tact—to persuade the victim to accept his phone calls—
with the rapid change in tone or tactics used to achieve
that objective. The fact that the defendant substituted
threats for affection does not mark the end of one
crime and the beginning of another. Whether through
statements of endearment or intimidation, his purpose
and intent remained the same, namely, to manipulate
the victim into unblocking his phone number. I disagree
with the majority that, during the few seconds between
the defendant’s initial statements and his threatening
statements, he developed a ‘‘ ‘fresh impulse’ ’’ or a ‘‘dif-
ferent purpose . . . .’’ Part I B of the majority opinion;
see Whylie v. United States, 98 A.3d 156, 165 (D.C.
2014) (holding that it would be ‘‘rank speculation’’ to
conclude that one week break between phone calls
‘‘corresponded to a fork in the road and a fresh impulse
not in evidence’’); cf. United States v. Chipps, 410 F.3d
438, 449 (8th Cir. 2005) (under ‘‘impulse test,’’ which
‘‘treat[s] as one offense all violations that arise from
that singleness of thought, purpose or action, which
may be deemed a single impulse,’’ there was only ‘‘a
single impulse underlying [the defendant’s] assaultive
conduct’’ in light of ‘‘the uninterrupted nature of the
attack on [the victim]’’ (internal quotation marks omit-
ted)); Hagood v. United States, 93 A.3d 210, 226 (D.C.
2014) (describing ‘‘fresh impulse or fork-in-the-road
test,’’ which asks whether, ‘‘at the scene of the crime
the defendant can be said to have realized that he has
come to a fork in the road, and nevertheless decides to
invade a different interest,’’ and holding ‘‘that something
more than a momentary interruption is required to sever
the singular continuous possession of a weapon into
distinct, separately punishable criminal actions’’ (inter-
nal quotation marks omitted)).
Under the majority’s holding today, an individual who
violates a standing criminal protective order by uttering
an uninterrupted stream of vile threats commits only
one violation of § 53a-223a, but an individual who pre-
cedes, intersperses, or concludes his threats with ‘‘small
talk’’ commits two or more separate violations of the
statute. I can perceive no reason, and the majority offers
none, why the legislature would want to punish the
latter individual more harshly in this context than the
former. Indeed, given the purpose of the statute and the
legislative policy that it was designed to implement—
to protect victims of domestic violence—it makes no
sense to punish individuals who pose an unequivocal
threat to the victim less harshly than those who do not.
Such an outcome is not only illogical but also results ‘‘in
convictions that are disproportionate to an offender’s
conduct,’’ in violation of the double jeopardy clause.
State v. Morales, 174 Wn. App. 370, 388, 298 P.3d 791(2013); see id., 387–88 (holding that threat to cause
bodily harm to single identified person at particular
time and place was only one unit of prosecution of
harassment, regardless of how many times threat was
communicated to others).
The defendant’s statements were made as part of a
brief, one-sided verbal contact with the victim. As such,
his conduct constituted only a single violation of the
standing criminal protective order under § 53a-223a.
Because the defendant stands convicted of two offenses
under the same statutory provision for a single act or
transaction in violation of the double jeopardy clause,
I would reverse the defendant’s conviction under count
one of the information and remand the case for resen-
tencing.3 See State v. Miranda, supra, 260 Conn. 130(‘‘[u]nder the aggregate package view . . . the court
may reconstruct the sentence in any way necessary to
ensure that the punishment fits both the crime and the
defendant’’). I therefore dissent from part I B of the
majority opinion.
1
General Statutes § 53a-223a provides in relevant part: ‘‘(a) A person is
guilty of criminal violation of a standing criminal protective order when an
order issued pursuant to subsection (a) of section 53a-40e has been issued
against such person, and such person violates such order.
***
‘‘(c) Criminal violation of a standing criminal protective order is a class
D felony, except that any violation that involves (1) imposing any restraint
upon the person or liberty of a person in violation of the standing criminal
protective order, or (2) threatening, harassing, assaulting, molesting, sexu-
ally assaulting or attacking a person in violation of the standing criminal
protective order is a class C felony.’’
2
The one case on which the majority relies, State v. Brown, 299 Conn.
640, 11 A.3d 663 (2011), illustrates precisely what is missing from this case—
an actual intervening event that creates a temporal or spatial break sufficient
to provide the defendant with a ‘‘clear opportunity . . . to reconsider his
actions’’ and ‘‘[to formulate] a new criminal intent that was separate and
distinct from the intent behind the initial [offense].’’ State v. Ruiz-Pacheco,
supra, Conn. ; see id., (holding that defendant’s two assault
convictions did not violate double jeopardy clause because there was ‘‘[a]
distinct break’’ in both time and place in fighting, and second assault was
motivated by ‘‘a separate and distinct criminal intent’’). In Brown, the defen-
dant attempted to rob the victim, but the victim fought back by ‘‘slapp[ing]
the gun away,’’ ‘‘struggl[ing] for control of the gun,’’ and ‘‘escap[ing] and
[running] down’’ the street. State v. Brown, supra, 653. The victim’s escape
was an intervening event because it represented a fork in the road; the
defendant could either chase after the victim or flee the scene of the crime.
The defendant chose to chase the victim, shoot him, and rob him. Id., 653–54.
The defendant’s first crime (attempted robbery) and his second crime (com-
pleted robbery) were ‘‘two separate and severable crimes’’; id., 654; because
they were separated by time and space, the victim’s escape, and the defen-
dant’s formulation of a new and distinct criminal intent. The facts of Brown
contrast sharply with the facts of the present case, and Brown provides no
support for the outcome reached here.
3
Although the defendant was convicted twice under the same statute for
the same conduct, his conviction under count two of the information is the
greater of the two offenses because any violation of a standing criminal
protective order that involves, among other things, threatening or harassing
is a class C felony rather than a class D felony. See General Statutes § 53a-
223a (c); see also General Statutes § 53a-35a (1) (A) (7) and (8) (providing
that class C felony is punishable by ‘‘a term not less than one year nor more
than ten years,’’ whereas class D felony is punishable by ‘‘a term not more
than five years’’). It is well established that, ‘‘when a defendant has been
convicted of greater and lesser included offenses’’ in violation of the double
jeopardy clause, ‘‘the trial court must vacate the conviction for the lesser
offense . . . .’’ State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013).