All Courts

State Courts

Connecticut Appellate Court

2018-07

State v. Taveras , 183 Conn. App. 354 ( 2018 )

Menu:

***********************************************
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 OF CONNECTICUT v. KERLYN M. TAVERAS
(AC 38602)
Sheldon, Elgo and Eveleigh, Js.
Syllabus
The defendant, who previously had been convicted on guilty pleas of assault
and threatening charges, appealed to this court from the judgments of
the trial court revoking his probation and sentencing him to eighteen
months incarceration. The defendant had been charged in three informa-
tions with violation of probation following his arrest on a charge of
breach of the peace in the second degree in violation of statute (§ 53a-
181 [a]), which involved an incident in which he engaged in a verbal
confrontation with staff members at a preschool after he arrived late
to pick up his child. After C, the assistant education manager, said
something to the defendant as he walked through the building’s inner
set of doors to leave the preschool, the defendant responded and stated,
‘‘you better watch yourself, you better be careful,’’ and attempted to
reenter the building through the locked doors. The defendant’s probation
officer thereafter applied for a violation of probation warrant and, in
an accompanying affidavit, averred that the defendant had said, ‘‘you
better watch your back.’’ The trial court found, by a preponderance of
the evidence, that the defendant violated his probation by committing
breach of the peace in the second degree. On appeal, the defendant
claimed that the evidence was insufficient to establish that he violated
his probation because the words he used to express his frustration with
the staff members did not constitute fighting words or a true threat,
which are two forms of speech that are not protected by the first amend-
ment to the United States constitution. Held:
1. The state could not prevail on its claim that there was sufficient evidence
to find that the defendant committed breach of the peace in the second
degree on the basis of his nonverbal conduct, which was based on the
assertion that the trial court reasonably could have inferred that the
alleged threat was a component of the defendant’s nonverbal conduct
when he attempted to open the door to reenter the preschool after
having made the remarks at issue; the trial court stated that its judgments
were based on the defendant’s threatening nature and demeanor without
referencing any specific conduct, the testimony demonstrated that the
defendant’s conduct, either verbal or nonverbal, was not threatening
until he exited the preschool, made the statement at issue and attempted
to reenter the school, the record did not indicate the tone in which the
statement was communicated or that the defendant made any threaten-
ing gestures in conjunction with the statement, and there was no evi-
dence in the record describing how the defendant attempted to open
the door, nor did the trial court make an inference that the defendant
attempted to reenter the school in an aggressive manner.
2. The evidence adduced at the defendant’s probation revocation hearing
was insufficient to establish that the defendant’s statement constituted
either fighting words or a true threat, and because the defendant’s speech
did not fall within those two categories of unprotected speech, the
revocation of his probation on the basis of his speech violated the
first amendment:
a. The defendant’s statement that ‘‘you better be careful, you better
watch yourself,’’ did not constitute fighting words within the meaning
of § 53a-181 (a) (1) or (3), as it did not have the tendency to provoke
imminent retaliation from an average person in C’s position; the defen-
dant’s conduct had been nonthreatening until he made the statement
at issue that was ambiguous, conditional and contained no reference
to an unlawful or violent act, which further reduced the probability that
an average person would have responded to it with imminent violence,
and the defendant was incapable of immediately following through with
his statement, as he had exited the preschool’s inner set of doors and was
unable to reenter the preschool at the time that he made the statement.
b. The defendant’s statement did not constitute a true threat within the
meaning of § 53a-181 (a) (3); a reasonable listener would not have been
highly likely to interpret the defendant’s statement as a serious expres-
sion of intent to harm or assault C, as neither ‘‘you better watch yourself,
you better be careful,’’ or, ‘‘you better watch your back,’’ communicated
an explicit threat or conveyed his intent to harm or assault C, the
defendant’s statement and attempt to reenter the preschool was suscepti-
ble of being interpreted as either innocent or threatening conditional
future conduct, and there was no evidence that C had witnessed prior,
similar conduct by the defendant at the preschool or had knowledge of
his prior convictions.
Argued January 16—officially released July 17, 2018
Procedural History
Three 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; judg-
ments directed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Bruce 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).
Opinion
EVELEIGH, J. The 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).1 On appeal, the defendant claims that the state
adduced insufficient evidence at his probation revoca-
tion hearing to establish a violation of probation.2 Cen-
tral 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, consti-
tuted ‘‘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.3 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 defen-
dant that the evidence adduced at his probation revoca-
tion 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.4
The following evidence, as adduced at the defen-
dant’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 sec-
ond 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 defen-
dant’s term of probation began on July 1, 2013.
On the 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.5 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,6 Sondra Cherney, Head Start’s assistant educa-
tion 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 left.
Thereafter, 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 offi-
cers responded to the preschool and took statements
from Bevilaqua,7 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.
Christopher Kelly, the defendant’s probation officer,
was aware of the March 11, 2014 incident and the defen-
dant’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 May 6, 2014, the defendant was arrested and charged
in three separate informations, brought pursuant to
§ 53a-32,8 with violating the condition of his probation
that he ‘‘not violate any criminal law . . . .’’9
The 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.’’10
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 state-
ments taken by Danbury police officers. Instead, the
state relied solely on the testimony of Kelly and Bevila-
qua. 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 misde-
meanor and he had ‘‘had a discussion with [his] supervi-
sor to give [the defendant] a second chance.’’ At the
conclusion of Kelly’s testimony, the violation of proba-
tion warrant that he drafted was admitted as a full
exhibit.11
Over the hearsay objections of defense counsel, Bevi-
laqua testified regarding Cherney’s summary of the
March 11, 2014 incident. Specifically, the state elicited
the following testimony:
‘‘[The Prosecutor]: What . . . was the nature of the
[March 11, 2014] incident reported to you on that tele-
phone 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.’’
In 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 defen-
dant and that she had previously witnessed the defen-
dant behave in a threatening manner. Although the state
attempted to elicit testimony detailing these prior inter-
actions, it later abandoned that line of questioning upon
objection by defense counsel.
In an 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 sen-
tenced him to a total effective term of eighteen months
incarceration. This appeal followed. Additional facts
will be set forth as necessary.
On appeal, the defendant claims that the evidence
presented at his probation revocation hearing was insuf-
ficient to support the trial court’s finding that he vio-
lated 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 pro-
scribed by statute consistent with the first amendment.
In response, the state contends that the defendant’s
first amendment claim is ‘‘unfounded’’ and, further-
more, that it presented sufficient evidence to support
the trial court’s finding. We agree with the defendant.
We 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 bene-
ficial aspects of probation are no longer being
served. . . .
‘‘Because the present case concerns the evidentiary
phase and the trial court’s factual finding that the defen-
dant violated his probation, we are guided by the stan-
dard of review applicable to that phase. The law
governing the standard of proof for a violation of proba-
tion is well settled. . . . [A]ll that is required in a proba-
tion 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 find-
ings 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 evi-
dence when there is no evidence in the record to sup-
port [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.’’ (Cita-
tions 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

 (1994).
In 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 sus-
tain 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 form-
ing the basis of that violation of probation must meet
the elements of the relevant crime. The cases involving
criminal prosecutions are therefore relevant qualita-
tively, in determining the nature of the alleged conduct
at issue.12
In the 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).
‘‘Our Supreme Court, in order to ascertain the mean-
ing 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 stat-
ute. 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]hreaten-
ing’ 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 threat-
ening behavior.’ In State v. Duhan, [

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 leg-
islative intent to proscribe conduct which actually
involves physical violence or portends imminent physi-
cal violence.’’ (Citations omitted.) State v. Lo Sacco,
supra, 490–91.
Likewise, to establish a violation of § 53a-181 (a) (3),
the state must prove, by a preponderance of the evi-
dence, 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 impedi-
ment 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 princi-
ples in mind, we turn to the parties’ arguments.
I
We first address the state’s assertion, and the dis-
sent’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 ses-
sion.’’ We are not persuaded.
In State v. Simmons, supra,

86 Conn. App. 384

, the
defendant assembled an obstacle blocking the path of
public travel around the perimeter of Bradley Interna-
tional Airport in Windsor Locks. The obstacle was dis-
covered by members of the Connecticut Army National
Guard while conducting a routine security patrol
around the perimeter of the airport. See

id.

 The defen-
dant ‘‘[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 defen-
dant of breach of the peace in the second degree; id.,
386–87; and (2) the defendant’s first amendment claim
was ‘‘without merit [because] [t]he record reflect[ed]
that the court’s judgment was based on the defendant’s
conduct and not his speech.’’ Id., 389.
This court has similarly declined to consider first
amendment claims sounding in pure speech where a
defendant’s physical conduct was augmented by his or
her speech. See State v. Bagnaschi,

180 Conn. App. 835

, 850–54,     A.3d     (2018) (sufficient evidence to
convict defendant of breach of peace in second degree,
where defendant, after greeting victim and shaking
hands in parking lot, grabbed victim’s hand tightly and
would not let go, stated that her employer and victim
had ruined her life, directed profanities at victim and
passenger in victim’s vehicle, and followed victim to
his home); State v. Andriulaitis,

169 Conn. App. 286

,
288,

150 A.3d 720

 (2016) (sufficient evidence to convict
defendant of disorderly conduct, where defendant, in
addition to shouting profanities, prevented victim from
engaging in lawful activity); State v. Lo Sacco, supra,

12 Conn. App. 489

 (sufficient evidence to convict defen-
dant of creating public disturbance, which is similar to
breach of peace, where defendant, who appeared to be
heavily intoxicated and was excitable, angry and upset,
approached victim’s car, put hands on window and
leaned into car, and yelled at victim for approximately
two minutes despite requests to stop).
In the present case, the trial court stated that its
judgments were ‘‘[b]ased on the [defendant’s] threaten-
ing nature and . . . demeanor’’ without referencing
any specific conduct. As we detailed previously, Bevila-
qua’s testimony reveals that none of the defendant’s
conduct,13 either nonverbal or verbal, was threatening
until he exited the preschool, made the statement at
issue, and attempted to reenter the preschool. The
record does not clearly indicate the tone in which the
statement was communicated,14 or that the defendant
made any threatening gestures in conjunction with that
statement. Furthermore, although the defendant
attempted to reenter the preschool after making the
statement, we emphasize that there is no evidence in
the record describing how the defendant attempted to
open the door. Both the state and the dissent posit
that the court reasonably could have inferred that the
defendant attempted to reenter the preschool in an
aggressive manner with the intent to confront Cher-
ney.15 Although we recognize the trial court’s ability to
draw reasonable and logical inferences from the evi-
dence; see, e.g., State v. Maurice M., supra,

303 Conn. 26

; the court stated no such inference in the present
case.
Accordingly, we reject the state’s claim that there was
sufficient evidence to find that the defendant committed
breach of the peace in the second degree on the basis
of his nonverbal conduct. Cf. State v. Whitnum-Baker,

169 Conn. App. 523

, 527,

150 A.3d 1174

 (2016) (sufficient
evidence to convict defendant of creating public distur-
bance in violation of § 53a-181a, where defendant, while
being escorted out of public library by state marshals,
‘‘engaged in violent and threatening behavior . . .
when she attempted to bite [marshal’s] arm’’), cert.
denied,

324 Conn. 923

155 A.3d 753

 (2017); State v.
Adams, supra,

163 Conn. App. 824

–25 (sufficient evi-
dence to convict defendant of breach of peace in second
degree in violation of § 53a-181 [a] [1], where defendant,
suspected of stealing, ‘‘used physical force, namely, a
shove, with the intent to impede a lawful activity’’);
State v. Hawley,

102 Conn. App. 551

, 555,

925 A.2d 1197

(sufficient evidence to convict defendant of breach of
peace in second degree in violation of § 53a-181 [a]
[1], where defendant ‘‘engaged in fighting or violent or
tumultuous behavior’’ ‘‘by spitting on [nurse’s] face’’),
cert. denied,

284 Conn. 914

931 A.2d 933

 (2007); State v.
Samuel,

57 Conn. App. 64

, 70–71,

747 A.2d 21

 (sufficient
evidence to find violation of probation by engaging in
breach of peace, where defendant threw brick through
car window), cert. denied,

253 Conn. 909

753 A.2d 942

 (2000).
II
Because we conclude that the trial count found a
violation of probation solely on the basis of the words
the defendant used to express his displeasure with Head
Start staff, ‘‘[f]undamentally, we are called upon to
determine whether [his] speech is protected under the
first amendment . . . or, rather, constitutes criminal
conduct that a civilized and orderly society may punish
through incarceration.’’ State v. Baccala,

326 Conn. 232

,
234,

163 A.3d 1

, cert. denied,       U.S.     ,

138 S. Ct. 510

199 L. Ed. 2d 408

 (2017).
We first set forth our standard of review. ‘‘Ordinarily,
a . . . trial court’s findings of fact are not to be over-
turned on appeal unless they are clearly erroneous.
. . . Thus, we [generally] review the findings of fact
made by the . . . trial court in its judgment, for clear
error. In certain first amendment contexts, however,
appellate courts are bound to apply a de novo standard
of review. . . . [In such cases], the inquiry into the
protected status of . . . speech is one of law, not fact.
. . . As such, an appellate court is compelled to exam-
ine for [itself] the . . . statements [at] issue and the
circumstances under which they [were] made to [deter-
mine] whether . . . they . . . are of a character [that]
the principles of the [f]irst [a]mendment . . . protect.
. . . [I]n cases raising [f]irst [a]mendment issues [the
United States Supreme Court has] repeatedly held that
an appellate court has an obligation to make an indepen-
dent examination of the whole record in order to make
sure that the judgment does not constitute a forbidden
intrusion [in] the field of free expression. . . . This
rule of independent review was forged in recognition
that a [reviewing] [c]ourt’s duty is not limited to the
elaboration of constitutional principles . . . . [Rather,
an appellate court] must also in proper cases review
the evidence to make certain that those principles have
been constitutionally applied. . . . Therefore, even
though, ordinarily . . . [f]indings of fact . . . shall not
be set aside unless clearly erroneous, [appellate courts]
are obliged to [perform] a fresh examination of crucial
facts under the rule of independent review. . . .
‘‘[T]he heightened scrutiny that this court applies in
first amendment cases does not authorize us to make
credibility determinations regarding disputed issues of
fact. Although we review de novo the trier of fact’s
ultimate determination that the statements at issue con-
stituted a [breach of the peace in the second degree],
we accept all subsidiary credibility determinations and
findings that are not clearly erroneous.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Krijger,

313 Conn. 434

, 446–47,

97 A.3d 946

 (2014); see also
State v. Parnoff,

160 Conn. App. 270

, 275–76,

125 A.3d 573

 (2015), aff’d,

329 Conn. 386

,      A.3d        (2018).
Our analysis also is informed by a review of first
amendment principles, the statutory elements of the
crime of breach of the peace in the second degree
and, moreover, how those elements are construed in
accordance with constitutional principles. ‘‘The [f]irst
[a]mendment, applicable to the [s]tates through the
[f]ourteenth [a]mendment, provides that Congress shall
make no law . . . abridging the freedom of speech.
The hallmark of the protection of free speech is to allow
free trade in ideas—even ideas that the overwhelming
majority of people might find distasteful or discom-
forting. . . . Thus, the [f]irst [a]mendment ordinarily
denies a [s]tate the power to prohibit dissemination of
social, economic and political doctrine which a vast
majority of its citizens believes to be false and fraught
with evil consequence. . . . The [f]irst [a]mendment
affords protection to symbolic or expressive conduct
as well as to actual speech. . . .
‘‘The protections afforded by the [f]irst [a]mendment,
however, are not absolute, and we have long recognized
that the government may regulate certain categories of
expression consistent with the [c]onstitution. . . . The
[f]irst [a]mendment permits restrictions upon the con-
tent of speech in a few limited areas, which are of such
slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest in order and morality. . . . Thus,
for example, a [s]tate may punish those words which
by their very utterance inflict injury or tend to incite
an immediate breach of the peace. . . . Furthermore,
the constitutional guarantees of free speech . . . do
not permit a [s]tate to forbid or proscribe advocacy of
the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such
action. . . . [T]he [f]irst [a]mendment also permits a
[s]tate to ban a true threat.’’ (Citations omitted; internal
quotation marks omitted.) Virginia v. Black,

538 U.S. 343

, 358–59,

123 S. Ct. 1536

155 L. Ed. 2d 535

 (2003);
see also State v. DeLoreto, supra,

265 Conn. 153

–54.
‘‘[Section] 53a-181 (a) (1) does not require proof of
actual physical contact on the part of the defendant
with a victim . . . but rather that, when applied to
speech, the parameters of the violent, threatening or
tumultuous behavior prohibited by § 53a-181 (a) (1) are
consistent with fighting words . . . .’’ (Internal quota-
tion marks omitted.) State v. Parnoff, supra,

160 Conn. App. 277

–78; see also State v. Szymkiewicz, supra,

237 Conn. 620

 (‘‘speech can be proscribed not only when
accompanied by actual physical conduct, but also when
it can be identified as fighting words that portend physi-
cal violence’’).
Although § 53a-181 (a) (3) criminalizes true threats,
it is well established that ‘‘[t]hreatening statements that
do not rise to the level of a true threat may nonetheless
constitute fighting words that could be criminalized
under this subsection consistent with the first amend-
ment.’’ State v. DeLoreto, supra,

265 Conn. 168

; see also
State v. Gaymon,

96 Conn. App. 244

, 248,

899 A.2d 715

,
cert. denied,

280 Conn. 906

907 A.2d 92

 (2006).
Therefore, to establish a violation of § 53a-181 (a)
under either subdivision (1) or (3), the state was
required to prove that the statement, ‘‘you better be
careful, you better watch yourself,’’ as testified to by
Bevilaqua, or the statement, ‘‘you better watch your
back,’’ as averred to by Kelly in the violation of proba-
tion warrant, constituted either fighting words or a true
threat. With that legal framework in mind, we consider
whether the evidence presented at the defendant’s pro-
bation revocation hearing was sufficient to establish a
violation under either subdivision.
A
We first address the defendant’s claim that the evi-
dence adduced at his probation revocation hearing was
insufficient to establish that his speech constituted
fighting words under either § 53a-181 (a) (1) or (3).
Specifically, the defendant argues that his alleged state-
ment was not likely to provoke a violent response from
Cherney because it was ambiguous, conditional, and
contained no reference to an unlawful act or violence.
We agree with the defendant.
We begin by setting forth the applicable legal princi-
ples. The fighting words exception was first articulated
by the United States Supreme Court in the seminal case
of Chaplinsky v. New Hampshire,

315 U.S. 568

, 573,

62 S. Ct. 766

86 L. Ed. 1031

 (1942). ‘‘The Chaplinsky
doctrine permits the state to prohibit speech that has
a direct tendency to inflict injury or to cause acts of
violence or a breach of the peace by the persons to
whom it is directed.’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Szymkiewicz, supra,

237 Conn. 619

. ‘‘[Fighting] words touch the raw nerves of
one’s sense of dignity, decency, and personality and
. . . therefore tend to trigger an immediate, violent
reaction. . . . They are like sparks, capable of igniting
individual reaction as well as setting off a group confla-
gration by provoking hostile reaction or inciting a riot.
. . . Such speech must be of such a nature that it is
likely to provoke the average person to retaliation. . . .
To be considered fighting words, the speech at issue
need not actually cause those who hear the speech to
engage in violent, tumultuous or threatening behavior,
but must have the tendency to provoke imminent retali-
ation from them. . . . Moreover, [w]hether particular
language constitutes fighting words . . . depends not
only on the language but on the full factual situation
of its utterance.’’ (Citations omitted; internal quotation
marks omitted.) State v. Parnoff, supra,

160 Conn. App. 278

–79.
It is well settled that ‘‘there are no per se fighting
words; rather, courts must determine on a case-by-case
basis all of the circumstances relevant to whether a
reasonable person in the position of the actual
addressee would have been likely to respond with vio-
lence.’’ State v. Baccala, supra,

326 Conn. 245

;16 see also
State v. Hoskins,

35 Conn. Supp. 587

, 591,

401 A.2d 619

(1978) (‘‘The fighting words concept has two aspects.
One involves the quality of the words themselves. The
other concerns the circumstances under which the
words are used.’’ [Internal quotation marks omitted.]).
‘‘[A] proper contextual analysis requires consideration
of the actual circumstances, as perceived by both a
reasonable speaker and addressee, to determine
whether there was a likelihood of violent retaliation.
This necessarily includes the manner in which the
words were uttered, by whom and to whom the words
were uttered, and any other attendant circumstances
that were objectively apparent and bear on the question
of whether a violent response was likely.’’ State v. Bac-
cala, supra, 250. Furthermore, ‘‘[a]lthough the reaction
of the addressee is not dispositive . . . it is probative
of the likelihood of a violent reaction. (Citation omit-
ted.) Id., 254.
Our analysis is also instructed by this court’s decision
in State v. Parnoff, supra,

160 Conn. App. 270

. In that
case, two employees of a water utility company entered
the property of Laurence V. Parnoff to conduct routine
maintenance on a fire hydrant located on the property.
See id., 272. Parnoff confronted the two men about their
presence on his property and ‘‘stated that he would
retrieve a gun and shoot them if they did not leave.’’
Id., 273. Parnoff was subsequently convicted after a
jury trial of disorderly conduct in violation of General
Statutes § 53a-182 (a) (1).17 On appeal, however, this
court concluded that there was insufficient evidence
to convict Parnoff of disorderly conduct because his
statement did not constitute fighting words. See id.,
271–72, 279. In so holding, this court reasoned that
his conditional threat did not have ‘‘the tendency to
provoke imminent retaliation’’ because there was no
evidence that he was carrying a gun or went into his
home after making the statement and, therefore, that
he was not ‘‘immediately capable of the violent act he
described.’’ (Emphasis omitted.) Id., 279.
With the foregoing legal principles in mind, and after
our independent review of the record, we conclude that
the defendant’s statement did not constitute fighting
words because it did not have the tendency to provoke
imminent retaliation from an average person in Cher-
ney’s position. Bevilaqua specifically testified that the
defendant’s conduct was nonthreatening until he stated,
‘‘you better be careful, you better watch yourself.’’
Although she testified that the defendant ‘‘had words’’
with staff prior to leaving, her testimony does not shed
any light on either what type of words were used or
the defendant’s mannerisms. See State v. Baccala,
supra,

326 Conn. 241

 (‘‘whether the words were pre-
ceded by a hostile exchange or accompanied by aggres-
sive behavior will bear on the likelihood of such a
reaction’’). Additionally, the statement is ambiguous,
conditional, and contained no reference to an unlawful
or violent act, ‘‘further reduc[ing] the probability that
the average person would have responded . . . with
imminent violence.’’ State v. Parnoff, supra,

160 Conn. App. 280

. Importantly, at the time the defendant made
the statement, he had already exited the preschool’s
inner set of doors and was unable to reenter, and, there-
fore, incapable of immediately following through with
his statement.18 Cf. State v. Baccala, supra, 253 (‘‘[w]e
recognize that a different conclusion might be war-
ranted if the defendant directed the same words at [the
victim] after [the victim] ended her work day and left
[her place of employment]’’). Accordingly, we conclude
that the evidence does not sufficiently establish that
the defendant violated his probation by committing the
crime of breach of the peace in the second degree, in
violation of § 53a-181 (a) (1) or (3), under the fighting
words exception to speech that is protected under the
first amendment.
B
We next consider the defendant’s claim that the evi-
dence adduced at his probation revocation hearing was
insufficient to establish, by a preponderance of the evi-
dence, that his speech constituted a true threat in viola-
tion of § 53a-181 (a) (3). Specifically, the defendant
argues that his ‘‘remarks . . . represented an
unplanned, spontaneous reaction to the upset and anger
he felt.’’ In response, the state contends that the defen-
dant’s statement constituted a true threat ‘‘in light of
the entire factual context.’’ The state, however, failed
to adduce sufficient evidence to contextualize the
defendant’s ambiguous and conditional statement.
Accordingly, we agree with the defendant.
We begin with the applicable legal principles. ‘‘True
threats encompass those statements [through which]
the speaker means to communicate a serious expres-
sion of an intent to commit an act of unlawful violence
to a particular individual or group of individuals. . . .
The speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats protect[s]
individuals from the fear of violence and from the dis-
ruption that fear engenders, in addition to protecting
people from the possibility that the threatened violence
will occur.’’ (Citations omitted; internal quotation
marks omitted.) Virginia v. Black,

supra,

538 U.S. 359

–60; see also State v. Cook,

287 Conn. 237

, 250,

947 A.2d 307

, cert. denied,

555 U.S. 970

129 S. Ct. 464

172 L. Ed. 2d 328

 (2008). ‘‘In the context of a threat of
physical violence, [w]hether a particular statement may
properly be considered to be a [true] threat is governed
by an objective standard—whether a reasonable person
would foresee that the statement would be interpreted
by those to whom the maker communicates the state-
ment as a serious expression of intent to harm or
assault. . . . [A]lleged threats should be considered in
light of their entire factual context, including the sur-
rounding events and reaction of the listeners. . . .
Prosecution under a statute prohibiting threatening
statements is constitutionally permissible [as] long as
the threat on its face and in the circumstances in which
it is made is so unequivocal, unconditional, immediate
and specific as to the person threatened, as to convey
a gravity of purpose and imminent prospect of execu-
tion . . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Krijger, supra,

313 Conn. 450

; cf. State
v. Pelella,

327 Conn. 1

, 17,

170 A.3d 647

 (2017) (‘‘[t]hough
relevant, the primary focus of our inquiry is not immedi-
acy but whether the threat convey[s] a gravity of pur-
pose and likelihood of execution’’ [internal quotation
marks omitted]).
‘‘[T]o ensure that only serious expressions of an inten-
tion to commit an act of unlawful violence are punished,
as the first amendment requires, the state must do more
than demonstrate that a statement could be interpreted
as a threat. When . . . a statement is susceptible of
varying interpretations, at least one of which is non-
threatening, the proper standard to apply is whether
an objective listener would readily interpret the state-
ment as a real or true threat; nothing less is sufficient
to safeguard the constitutional guarantee of freedom
of expression. To meet this standard . . . the state [is]
required to present evidence demonstrating that a rea-
sonable listener, familiar with the entire factual context
of the defendant’s statements, would be highly likely
to interpret them as a communicating a genuine threat
of violence rather than protected expression, however
offensive or repugnant.’’ (Emphasis altered.) State v.
Krijger, supra,

313 Conn. 460

; see also State v. Krijger,

130 Conn. App. 470

, 484–85,

24 A.3d 42

 (2011) (Lavine,
J., dissenting), rev’d,

313 Conn. 434

, 446–47,

97 A.3d 946

 (2014) (adopting Appellate Court dissent’s posi-
tion). ‘‘An important factor to be considered in
determining whether a facially ambiguous statement
constitutes a true threat is the prior relationship
between the parties. When the alleged threat is made
in the context of an existing or increasingly hostile
relationship, courts are more apt to conclude that an
objectively reasonable speaker would expect that the
statement would be perceived by the listener as a genu-
ine threat.’’ State v. Krijger, supra, 453–54; see also
State v. Pelella, supra,

327 Conn. 6

 (concluding that,
where history of physical acts of violence toward vic-
tim, evidence was sufficient for jury to determine
whether defendant’s statement, ‘‘if you go into the attic
I will hurt you,’’ constituted true threat).
With the foregoing legal principles in mind, we con-
clude that the defendant’s statement did not constitute
a true threat. Several factors bear on our conclusion.
To begin, we emphasize that neither of the statements,
‘‘you better watch yourself, you better be careful,’’ or,
‘‘you better watch your back,’’ communicate an explicit
threat or convey the defendant’s intent to harm or
assault Cherney. Cf. State v. Cook,

supra,

287 Conn. 240

(defendant told victim, ‘‘[t]his is for you if you bother
me anymore,’’ while wielding wooden table leg [internal
quotation marks omitted]); State v. DeLoreto, supra,

265 Conn. 149

 (defendant jumped out of car as victim
was jogging by, ran toward victim, pumped his fists and
stated, ‘‘I’m going to kick your ass’’ [internal quotation
marks omitted]); State v. Gaymon, supra,

96 Conn. App. 249

 (defendant, after being placed in handcuffs, told
probation officer, ‘‘I’m going to kick your fucking ass,’’
and spat in his face [internal quotation marks omitted]).
Instead, the defendant’s statement and attempt to reen-
ter the preschool was susceptible of being interpreted
as either innocent or threatening conditional future con-
duct.19 For that reason, it was the state’s ‘‘burden [to
present] evidence serving to remove that ambiguity’’ by
contextualizing the defendant’s statement against the
backdrop of his previous interactions with preschool
staff and, specifically, Cherney. (Internal quotation
marks omitted.) State v. Krijger, supra,

313 Conn. 458

.
The state, acknowledging that the defendant’s state-
ment was not explicitly threatening, attempts to resolve
the ambiguity by relying on (1) Bevilaqua’s testimony
that she had previously witnessed the defendant engage
in similar conduct at the preschool, and (2) the defen-
dant’s history of threatening and assaultive behavior.
There is, however, no evidence that Cherney had pre-
viously witnessed this prior behavior or had knowledge
of the defendant’s prior convictions. Simply put, the
state was required ‘‘to do more than demonstrate that
[the defendant’s] statement could be interpreted as a
threat.’’ (Emphasis omitted.) Id., 460. Therefore, in light
of the unresolved ambiguity of the defendant’s state-
ment, we cannot conclude that a reasonable listener
would be highly likely to interpret the defendant’s state-
ment as a serious expression of intent to harm or
assault. Accordingly, we conclude that the evidence
does not sufficiently establish that the defendant vio-
lated his probation by committing the crime of breach
of the peace in the second degree, in violation of § 53a-
181 (a) (3), under the true threat exception to speech
that is protected under the first amendment.
In sum, we conclude that, under the circumstances
of the present case, the evidence adduced at the defen-
dant’s probation revocation hearing was insufficient
to establish that the defendant’s statement constituted
either fighting words or a true threat. Because the defen-
dant’s speech did not fall within those two narrowly
defined categories of unprotected speech, the revoca-
tion of his probation on the basis of his speech violates
the first amendment to the United States constitution.
The judgments are reversed and the cases are
remanded with direction to render judgments for the
defendant.
In this opinion SHELDON, J., concurred.
1
The record does not indicate what subdivision was specified, either as
charged by the state or as found by the trial court. At the probation revocation
hearing, however, the state proceeded under the theory that the defendant
had committed a breach of the peace on the basis of his ‘‘threatening and
violent behavior’’ at his child’s preschool, and referred to the statutory
language of § 53a-181 (a) (1) in its closing argument. Section 53a-181 (a)
provides in relevant part: ‘‘A person is guilty of breach of the peace in the
second degree when, with intent to cause inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, such person . . . (1) Engages
in fighting or in violent, tumultuous or threatening behavior in a public place
. . . . For purposes of this section, ‘public place’ means any area that is
used or held out for use by the public whether owned or operated by public
or private interests.’’ General Statutes § 53a-181 (a).
On appeal, the state claims § 53a-181 (a) (3) as an alternative ground for
affirmance. Section 53a-181 (a) provides in relevant part: ‘‘A person is guilty
of breach of the peace in the second degree when, with intent to cause
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
such person . . . (3) threatens to commit any crime against another person
or such other person’s property . . . .’’ General Statutes § 53a-181 (a).
2
The defendant also claims that (1) the trial court improperly admitted
hearsay testimony, and (2) the trial court’s finding that he had violated
his probation was clearly erroneous, as the only evidence adduced at his
probation revocation hearing was unreliable, uncorroborated hearsay testi-
mony admitted in violation of his constitutional right to due process. We
address the defendant’s sufficiency of the evidence claim before we address
any other claim because if a defendant prevails on such a claim in the
context of a violation of probation proceeding, the appropriate remedy is
to reverse the judgment of the trial court and to remand the case with
direction to render judgment in favor of the defendant. See State v. Maurice
M.,

303 Conn. 18

, 44,

31 A.3d 1063

 (2011); State v. Acker,

166 Conn. App. 404

, 408,

141 A.3d 938

 (2016); State v. Edwards,

148 Conn. App. 760

, 769,
539, cert. denied,

276 Conn. 922

888 A.2d 90

 (2005).
The state, relying on State v. McDowell,

242 Conn. 648

, 653–54,

699 A.2d 987

 (1997) (holding that principles of double jeopardy do not bar criminal
trial on underlying charges after defendant found in violation of probation),
argues that ‘‘even if the evidence was insufficient, the defendant should not
be entitled to an acquittal, but rather a new probation revocation hearing
because the double jeopardy bar attaches only to proceedings that are
essentially criminal, and probation revocation hearings are not criminal
proceedings.’’ We are not persuaded. Our Supreme Court has not addressed
whether its holding in McDowell would permit the state to commence a
second probation revocation proceeding on the same set of underlying facts,
following a court’s conclusion that the state adduced insufficient evidence
to support a revocation at the first proceeding. See State v. Daniels,

248 Conn. 64

, 71 n.9,

726 A.2d 520

 (1999) (‘‘[b]ecause we conclude that . . .
the evidence adduced at the probation revocation hearing was sufficient to
establish a probation violation . . . we need not consider the appropriate
relief to be afforded a defendant in a case in which the evidence was
insufficient to establish a violation’’), overruled in part on other grounds by
State v. Singleton,

274 Conn. 426

, 436–39,

876 A.2d 1

 (2005). Furthermore,
we are persuaded by decisions following McDowell and Daniels, in which
our Supreme Court and this court have reversed the judgment of the trial
court and remanded the case with direction to render judgment in favor of
the defendant. See, e.g., State v. Maurice M., supra,

303 Conn. 44

; State v.
Acker, supra,

166 Conn. App. 408

.
3
As we discuss subsequently, ‘‘fighting words’’ are those words that ‘‘have
a direct tendency to cause acts of violence by the persons to whom, individu-
ally, the remark is addressed.’’ (Internal quotation marks omitted.) Chaplin-
sky v. New Hampshire,