State v. Lamantia , 181 Conn. App. 648 ( 2018 )

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STATE OF CONNECTICUT v. JASMINE LAMANTIA
(AC 40157)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Syllabus
Convicted, following a jury trial, of the crimes of interfering with an officer
and tampering with a witness, the defendant appealed to this court,
claiming that the evidence was insufficient to support her conviction
of those crimes. Following an altercation at a residence involving her
boyfriend, R, and M, the defendant sent certain text messages to R in
which she asked R to lie to the police regarding the altercation and to
make sure their stories matched. Held:
1. The evidence was insufficient to support the defendant’s conviction of
interfering with an officer; a conviction of that offense required evidence
that the defendant obstructed, resisted, hindered, or endangered a peace
officer while the officer was in the performance of his duties, and here,
the communications that formed the basis for the defendant’s conviction
were nonviolent and nonthreatening text messages directed to R that
were sent in order to induce R to report to a police officer a version
of events concerning the altercation that matched her own prior state-
ments to the police, which messages did not constitute physical conduct
or amount to fighting words that inflicted injury or tended to incite an
immediate breach of peace for purposes of the crime of interfering with
an officer.
2. The defendant’s claim that the state failed to prove that she had the
specific intent to influence a witness at an official proceeding by sending
the text messages to R was unavailing, the evidence having been suffi-
cient to support her conviction of tampering with a witness in violation
of statute (§ 53a-151), which applies to any conduct intended to induce
a witness to testify falsely or to refrain from testifying in an official
proceeding, and to conduct intentionally undertaken to undermine the
veracity of the testimony given by a witness; although the defendant
claimed that it was not probable that a criminal court proceeding would
occur arising out of the altercation in which R would testify, the term
official proceeding as used in the statute was not limited to a prosecution
of R, and the jury reasonably could have found that the defendant
tampered with R by sending him the text messages shortly after his
altercation with M, as the defendant’s text messages encouraged R to
lie to an officer and evinced that the defendant was aware of the officer’s
investigation of the altercation, and the jury could have concluded that
the defendant believed than an official proceeding against her or the
other participants in the altercation probably would result therefrom.
Argued January 9—officially released May 8, 2018
Procedural History
Substitute information charging the defendant with
the crimes of interfering with a police officer and tam-
pering with a witness, brought to the Superior Court
in the judicial district of New London, geographical
area twenty-one, and tried to a jury before the court,
A. Hadden, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Reversed
in part; judgment directed; further proceedings.
Conrad O. Seifert, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Michael Regan, state’s
attorney, and Christa L. Baker, assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Jasmine Lamantia,
appeals from the judgment of conviction, rendered after
a jury trial, of interfering with an officer in violation
of General Statutes § 53a-167a and tampering with a
witness in violation of General Statutes § 53a-151. On
appeal, the defendant claims that the evidence was
insufficient to support her conviction for these offenses.
We agree with the defendant with respect to the interfer-
ing with an officer count, but disagree as to the tamper-
ing with a witness count. Accordingly, we reverse in
part and affirm in part the judgment of the trial court.
The jury reasonably could have found the following
facts in support of the verdict.1 On the evening of July
24, 2015, Earl F. Babcock and Jason Rajewski spent
three or four hours socializing at a bar in Norwich. At
that time, Rajewski was involved romantically with the
defendant. At some point that evening, the defendant
arrived at the bar. After midnight, Babcock and Rajew-
ski followed the defendant to a house located at 18
Bunny Drive in Preston. At this location, some teenag-
ers, including the defendant’s son, Joshua Bivens, were
having a party. Upon her arrival, the defendant parked
her car and immediately ran into house. Babcock
parked his car and remained outside with Rajewski.
David Moulson, the defendant’s former boyfriend,2
drove his vehicle into the driveway, and directed the
headlights at Babcock and Rajewski. Moulson, exited
his car and ran toward them while swinging his arms.
Babcock fell over backwards, as he was ‘‘disoriented’’
by the headlights shining in his eyes. Moulson and
Rajewski engaged in a verbal and physical altercation
that ended with Rajewski striking Moulson with his
right hand and Moulson bleeding from his face. Moulson
ran into the house and called the police. Babcock and
Rajewski left after hearing from the defendant about
Moulson’s phone call. Five minutes later, Babcock
dropped Rajewski off at his house, and then pro-
ceeded home.
Jonathan Baker, a Connecticut state trooper,
received a dispatch to 18 Bunny Drive for an active
disturbance at approximately 2:30 a.m. Baker spoke
with Moulson in the presence of the defendant. Moulson
claimed that two males, one of whom he identified as
Rajewski, had assaulted him as he exited his vehicle.
Baker obtained an address for Rajewski, and proceeded
to that address to continue the investigation.
At Rajewski’s residence, Baker knocked on the door.
Rajewski indicated that he knew why Baker was there
and then presented his cell phone to Baker. Rajewski
asked Baker to read the text messages that he had
received from the defendant. Baker read the text con-
versation and concluded that the defendant had
requested that Rajewski lie to him. Rajewski then
received a call from Babcock and permitted Baker to
answer his phone. Baker took Rajewski into custody,
drove him to the state police barracks for processing,
and then went to Babcock’s house. Following a conver-
sation, Baker arrested Babcock and transported him to
the barracks for processing.
Later that morning, the defendant arrived at the bar-
racks to pick up Moulson, who also had been arrested.
Baker confronted the defendant about the text mes-
sages that she had sent to Rajewski, and then placed her
under arrest. The defendant subsequently was charged,
tried, and convicted of interfering with a police officer
in violation of § 53a-167a (a) and tampering with a wit-
ness in violation of § 53-151 (a). The court imposed a
concurrent sentence for each count of one year incar-
ceration, execution suspended, and two years of proba-
tion. This appeal followed. Additional facts will be set
forth as necessary.
On appeal, the defendant claims that the evidence
was insufficient to sustain her conviction. We begin by
setting forth our well established standard of review.
‘‘In reviewing the sufficiency of the evidence to support
a criminal conviction we apply a two-part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable
doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015); see
also State v. Rodriguez, 146 Conn. App. 99, 110, 75 A.3d
798 (defendant who asserts insufficiency claim bears
arduous burden), cert. denied, 310 Conn. 948, 80 A.3d
906 (2013). When a claim of insufficient evidence turns
on the appropriate interpretation of a statute, however,
our review is plenary. See State v. Webster, 308 Conn.
43, 51, 60 A.3d 259 (2013).
I
We first address the defendant’s claim that the evi-
dence was insufficient to support her conviction of
interfering with a police officer. The defendant argues
that our decision in State v. Sabato, 152 Conn. App.
590, 98 A.3d 910 (2014), aff’d, 321 Conn. 729, 138 A.3d
895 (2016), controls the present appeal. Specifically,
she contends that her text messages to Rajewski, a
verbal communication that did not constitute fighting
words, cannot form the basis for a violation of § 53a-
167a. We agree with the defendant.
Section 53a-167a (a) provides in relevant part: ‘‘A
person is guilty of interfering with an officer when such
person obstructs, resists, hinders or endangers any
peace officer . . . in the performance of such peace
officer’s . . . duties.’’ Accordingly, ‘‘[t]he elements of
this crime . . . are (1) a person obstructs, resists, hin-
ders, or endangers, (2) a peace officer, (3) while the
officer is in the performance of his or her duties.’’ State
v. Wearing, 98 Conn. App. 350, 355, 908 A.2d 1134(2006), cert. denied, 281 Conn. 905, 916 A.2d 47 (2007).
In State v. Briggs, 94 Conn. App. 722, 728, 894 A.2d
1008, cert. denied, 278 Conn. 912, 899 A.2d 39 (2006),
we noted that this statute, which is broad in scope,
proscribes behavior that hampers the actions of the
police in the performance of their duties. ‘‘[A]ny act
intended to thwart this purpose violates the statute.’’
(Internal quotation marks omitted.) Id. Additionally,
‘‘[t]his statutory provision has been interpreted to
require the intention to interfere with the performance
of an officer’s duties as a necessary element of the
offense.’’ State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d
1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L.
Ed. 2d 217 (1988); see also State v. Briggs, supra, 728
(intent is necessary element of § 53a-167a).
On appeal, the defendant contends that the communi-
cation that formed the basis for her conviction of
interfering with a police officer was nonviolent and
nonthreatening text messages directed to Rajewski, not
Baker.3 The following additional facts are necessary for
our discussion. In the course of his investigation, Baker
left Bunny Drive and proceeded to Rajewski’s resi-
dence. Baker knocked on the door and asked if Rajew-
ski knew why he was there. Rajewski responded
affirmatively, and then handed Baker his cell phone.
Rajewski requested that Baker read the text messages
that he recently had received from the defendant.
Baker testified that the text messages were ‘‘a conver-
sation between [Rajewski] and [the defendant] about
how their stories have to match and have to be on the
same pages and the cops were coming and a couple of
other things.’’ Baker then explained that he had
recorded the text message conversation into his police
report.4 The defendant first texted Rajewski telling him
that the ‘‘cops are coming,’’ that he should ‘‘make sure
[he was] bloody’’ and that she had stated to Baker that
Moulson was abusive to her. Rajewski simply replied,
‘‘ok.’’ The defendant then texted that Rajewski should
wait outside because the police were coming to his
residence and that he should delete this text conversa-
tion. Next, the defendant asked Rajewski to tell the
police that Moulson had ‘‘stalked’’ her, that Rajewski
should claim to have been involved in an altercation at
a bar, had been bleeding when he arrived at Bunny
Drive, and had followed her to Bunny Drive only
because he loved the defendant. Finally, the defendant
texted Rajewski that they needed ‘‘to stick with the
same story’’ and that their statements needed ‘‘to
match.’’
Rajewski replied that he was going to tell the truth,
specifically, that Moulson had ‘‘tried to kick [his] ass,
so [Rajewski] beat him up.’’ Rajewski’s text messages
conveyed that he was upset, and that ‘‘enough is
enough.’’ The defendant responded with a question
mark, and then that his story needed to match hers.
After additional conversation via text message, Rajew-
ski again stated that ‘‘he was not going to tell a story,
he’s just going to tell what happened.’’
Our analysis begins with State v. Williams, 205 Conn.
456, 459, 534 A.2d 230 (1987), where our Supreme Court
considered claims that § 53a-167a was unconstitution-
ally vague and fatally overbroad. In that case, two police
officers detained the defendant during the early morn-
ing hours because he matched the description of a bur-
glar. Id., 457–59. One of the officers asked the defendant
to wait inside a police vehicle. Id., 458. ‘‘The defendant
refused to comply with [the] request. Increasingly ‘out
of control,’ he started to swear at the police officers
and, in a crescendo, to protest his detention. Observing
that the noise had attracted onlookers, the [officers]
decided that the defendant was causing a disturbance
and arrested him for breach of the peace. Following
standard police procedures, they attempted to handcuff
the defendant but he had become ‘totally out of control’
and had to be forcibly ‘subdued.’ ’’ Id. As a result of
his resisting arrest, the defendant was convicted for
violating § 53a-167a (a). Id., 459.
Our Supreme Court rejected the defendant’s claim
of insufficient evidence as to his conviction for violating
§ 53a-167a. Id., 468–69. Next, it considered his claim
that § 53a-167a was unconstitutionally vague and vio-
lated due process of law. Id., 469. In rejecting this claim,
the court explained that this statute was confined ‘‘to
conduct that amounts to meddling in or hampering the
activities of the police in the performance of their
duties. . . . Furthermore, the conduct that the statute
proscribes is limited to action intended to obstruct the
police in the performance of their duties.’’ (Citations
omitted.) Id., 471. The court also recognized that certain
acts of ‘‘verbal resistance’’ fell within the ambit of § 53a-
167a. Id. ‘‘The statute’s requirement of intent limits its
application to verbal conduct intended to interfere with
a police officer and excludes situations in which a
defendant merely questions a police officer’s authority
or protests his or her action.’’ Id., 472.
The court then turned to the defendant’s claim that
§ 53a-167a was fatally overbroad. Id., 472–74. First, it
distinguished § 53a-167a from a Texas ordinance that
the United States Supreme Court had determined to be
overbroad. Id., 472–73. It then stated: ‘‘Moreover, unlike
the United States Supreme Court, this court has the
power to construe state statutes narrowly to comport
with the constitutional right of free speech. . . . To
avoid the risk of constitutional infirmity, we construe
§ 53a-167a to proscribe only physical conduct and
fighting words that by their very utterance inflict
injury or tend to incite an immediate breach of the
peace. . . . By its terms, § 53a-167a is directed only at
conduct that interferes with police and firemen in the
performance of their duties. As we have said earlier, it
encompasses only interference that is intentional. . . .
This limiting construction, which we deem to be fully
consistent with the intent of the legislature, preserves
the statute’s purpose to proscribe core criminal conduct
that is not constitutionally protected.’’ (Citations omit-
ted; emphasis added; footnotes omitted; internal quota-
tion marks omitted.) Id., 473–74.
Approximately twenty-seven years later, in State v.
Sabato, supra, 152 Conn. App. 590, 595 n.3, this court,
sua sponte, raised the issue of whether § 53a-167a was
limited to physical conduct and fighting words. In that
case, the victim’s cell phone was stolen from a night-
club. Id., 592. The next day, the defendant sold this
cell phone to a third party, who sought assistance in
unlocking it. Id. The victim used a tracking application
on her computer to locate her phone and then notified
the police. Id. The third party, later relinquishing the
phone, provided the police with a sworn statement, and
notified the defendant that he was at the police station.
Id., 592–93. The defendant sent the third party a text
message ‘‘telling him not to write a statement and to
keep his mouth shut.’’ (Internal quotation marks omit-
ted.) Id., 593. The state subsequently charged the defen-
dant with attempt to interfere with a police officer. Id.,
594. Following his conviction, the defendant filed an
appeal. Id.
The defendant in Sabato claimed that the evidence
was insufficient to sustain his conviction for attempt
to interfere with a police officer. ‘‘First, he argues that
§ 53a-167a does not proscribe physical or verbal con-
duct directed against a third party . . . . Second, he
contends that applying § 53a-167a to his conduct, which
was outside the presence of a police officer, would
render the statute void for vagueness.’’ Id., 595. After
oral argument, we ordered the parties to submit supple-
mental briefs on the applicability of State v. Williams,
supra, 205 Conn. 456. State v. Sabato, supra, 152 Conn.
App. 595 n.3.
We concluded that State v. Williams, supra, 205
Conn. 456, controlled the appeal. State v. Sabato, supra,
152 Conn. App. 595. ‘‘Applying Williams to the present
case, we conclude that there was insufficient evidence
to convict the defendant of attempt to interfere with
an officer.’’ Id., 596. ‘‘By long form information, the
defendant was charged under § 53a-167a exclusively for
a text message he sent to [the third party] . . . telling
him not to write a statement and to ‘keep [his] mouth
shut.’ These words cannot be construed to be ‘fighting
words that by their very utterance inflict injury or tend
to incite an immediate breach of the peace.’ State v.
Williams, supra, [473]. They were therefore not pro-
scribed by § 53a-167a. As a result, we conclude that
there was insufficient evidence presented to sustain the
defendant’s conviction for attempt to interfere with an
officer.’’ State v. Sabato, supra, 152 Conn. App. 596.
Our Supreme Court granted the petitions for certifica-
tion filed by the state and the defendant. State v. Sabato,
321 Conn. 729, 732–33, 138 A.3d 895 (2016). The state
argued that this court erred in concluding that § 53a-
167a excluded true threats or, alternatively, that the
judicial gloss applied to that statute should include true
threats.5 Id., 740. The defendant countered that the state
was attempting to save the conviction on the basis of
a theory of guilt that had not been alleged or presented
to the jury, and, therefore, constituted a violation of
due process. Id., 740–41.
The court reviewed its prior interpretation of § 53a-
167a in State v. Williams, supra, 205 Conn. 456, noting
first that the statute encompassed both verbal and phys-
ical conduct, subject to the intent requirement. State
v. Sabato, supra, 321 Conn. 741. It iterated the limiting
construction that had been placed on the statute;
namely, that § 53a-167a proscribed ‘‘only physical con-
duct and fighting words that by their very utterance
inflict injury or tend to incite an immediate breach of
the peace.’’ (Emphasis added; internal quotation marks
omitted.) Id., 741.
The court in Sabato rejected the state’s true threats
argument on the basis that it violated the theory of the
case, and thus, due process. Id., 742–45. In its analysis,
the court expressly noted that the prosecutor had con-
tended that the defendant’s statement to the third party
to refrain from providing a statement to the police com-
prised the actus reus of the offense. Id., 745. ‘‘As we
have explained, however, and as the state concedes,
§ 53a-167a does not proscribe such verbal conduct,
and, therefore, the defendant’s conviction under that
statute cannot stand.’’ (Emphasis added.) Id., 746.
The state attempts to distinguish the present case
from the Sabato opinions and State v. Williams, supra,
205 Conn. 456. With respect to the latter, the state con-
tends that the court in Williams ‘‘was careful not to
preclude application of § 53a-167a to ‘verbal conduct
intended to interfere with a police officer’ because such
‘core criminal conduct’ is not constitutionally protected
speech, and, thus, falls within the ambit of § 53a-167a.’’
In support, the state directs us to the following footnote
from Williams: ‘‘This narrow construction [that § 53a-
167a applies only to physical conduct and fighting
words] is required by the constitutional right of free
speech even though a broader construction of verbal
conduct intended to interfere with a police officer to
which we referred in our earlier discussion of vagueness
would constitutionally suffice for the latter purpose.’’
(Internal quotation marks omitted.) State v. Williams,
supra, 205 Conn. 473 n.6. As to the former, the state
maintains that, contrary to the present case, it had failed
to present evidence of specific intent to interfere in the
Sabato prosecution.
We are not persuaded by the state’s interpretation of
State v. Williams, supra, 205 Conn. 456. In that case,
our Supreme Court determined that, for purposes of
the defendant’s claim that § 53a-167a was unconstitu-
tionally vague, verbal conduct, coupled with the intent
requirement, sufficiently defined the statute and pro-
vided notice as to what was proscribed, and thus did
not violate due process. Id., 469–72. In order to ensure
that the state did not run afoul of the constitutional right
to free speech, however, our Supreme Court expressly
limited its application to intentional interference con-
sisting of either physical conduct or fighting words that
inflicted injury or tended to incite an immediate breach
of peace. Id., 473. ‘‘This limiting construction, which
we deem to be fully consistent with the intent of the
legislature, preserves the statute’s purpose to proscribe
core criminal conduct that is not constitutionally pro-
tected.’’ (Internal quotation marks omitted.) Id., 474.
Additionally, our Supreme Court recently endorsed this
limitation. In State v. Sabato, supra, 321 Conn. 746, it
explicitly emphasized that ‘‘§ 53a-167a does not pro-
scribe such verbal conduct [that does not constitute
fighting words] . . . .’’
Additionally, we are not persuaded by the state’s
attempt to distinguish the present case from the Sabato
decisions. Neither this court nor our Supreme Court
based its decision on whether there was evidence that
the defendant specifically intended to interfere with a
police officer when he sent his text message to the third
party. Rather, the focus of both courts was on the fact
that the verbal conduct did not amount to fighting words
and could not constitute a violation of § 53a-167a.
The state also directs us to State v. Williams, 110
Conn. App. 778, 956 A.2d 1176, cert. denied, 289 Conn.
957, 961 A.2d 424 (2008). In that case, a Norwalk police
sergeant effectuated a motor vehicle stop after observ-
ing a vehicle in a commercial parking lot at 2 a.m. Id.,
780. All three men in the vehicle, including the defen-
dant who was sitting in the back seat, appeared nervous
and fidgety. Id., 781. The sergeant arrested the three
men for trespassing, and the police found cocaine and
marijuana in the vehicle. Id., 781–82. At the scene of
the arrest, and later at the police station, the defendant
identified himself to the police officers as ‘‘Zeke Wil-
liams.’’ Id., 782. At the station, he provided the police
with his correct social security number, address and
birthplace. Id. Using an electronic database, the police
determined the defendant’s ‘‘actual identity to be Corey
Williams, not Zeke Williams.’’ Id. He subsequently was
convicted of possession of narcotics with intent to sell
and interfering with an officer. Id., 783.
On appeal, the defendant claimed, inter alia, that the
evidence was insufficient to support his conviction for
violating § 53a-167a (a). Id., 793. Relying on our
Supreme Court’s decision in State v. Aloi, 280 Conn.
824, 911 A.2d 1086 (2007),6 we affirmed the defendant’s
conviction. Id., 793–98. We specifically reasoned that
‘‘[t]he defendant’s providing a false name to police is
verbal conduct that is equivalent to the defendant’s
refusal to give identification to the police in Aloi, in
that it hampered, or hindered, the ability of the police
to perform their duties properly, quickly and effi-
ciently.’’ Id., 797. Accordingly, we concluded that the
defendant’s sufficiency claim failed. Id., 798.
At first blush, State v. Williams, supra, 110 Conn.
App. 778, appears to support the state’s claim that verbal
conduct specifically intended to interfere with a police
officer constitutes a violation of § 53a-167a. Our opin-
ion, however, did not specifically address the question
of whether the verbal conduct of the defendant consti-
tuted a violation of § 53a-167a. Id., 793–98. Furthermore,
a review of the briefs filed in that case reveals that
the defendant argued that the testimony of one officer
should have been discounted, the defendant provided
his proper social security number and address to the
police, the defendant followed the commands of the
arresting sergeant and never resisted or became unco-
operative. State v. Williams, Conn. Appellate Court
Record & Briefs, May-June Term, 2008, Defendant’s
Brief pp.13–15. In other words, the defendant in State
v. Williams, supra, 110 Conn. App. 778, did not chal-
lenge his conviction under § 53a-167a on the basis that
it was premised on verbal conduct. The issue addressed
in State v. Williams, supra, 205 Conn. 456, and subse-
quently endorsed in State v. Sabato, supra, 321 Conn.
729, was not before this court and not part of the opinion
in State v. Williams, supra, 110 Conn. App. 778. We
conclude, therefore, that our decision in State v. Wil-
liams, supra,110 Conn. App. 778, is inapplicable to the
present case.
The sole basis for the defendant’s conviction for vio-
lating § 53a-167a was the text messages sent to Rajew-
ski. These words, which cannot be construed as fighting
words, were not proscribed by that statute. As a result,
we conclude that there was insufficient evidence to
sustain her conviction for interfering with a police
officer.
II
The defendant next claims that the evidence was
insufficient to support her conviction of tampering with
a witness. Specifically, she argues that the state failed
to prove that she sent the text messages to Rajewski7
with the specific intent required for a conviction of
§ 53a-151 (a), that is, the intent to influence a witness
at an official proceeding. See State v. Ortiz, 312 Conn.
551, 554, 93 A.3d 1128 (2014). We are not persuaded.
Section 53a-151 (a) provides: ‘‘A person is guilty of
tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he
induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning
him to testify or absent himself from any official pro-
ceeding.’’8 See also State v. Bennett-Gibson, 84 Conn.
App. 48, 52–53, 851 A.2d 1214, cert. denied, 271 Conn.
916, 859 A.2d 570 (2004). Its purpose is to punish those
who interfere with our system of justice. State v. Pom-
mer, 110 Conn. App. 608, 617, 955 A.2d 637, cert. denied,
289 Conn. 951, 961 A.2d 418 (2008).
Our Supreme Court has stated that this statutory
language ‘‘plainly warns potential perpetrators that the
statute applies to any conduct that is intended to prompt
a witness to testify falsely or to refrain from testifying
in an official proceeding that the perpetrator believes
to be pending or imminent.’’ State v. Cavallo, 200 Conn.
664, 668, 513 A.2d 646 (1986). It further explained that
§ 53a-151 (a) ‘‘applies only to conduct intentionally
undertaken to undermine the veracity of the testimony
given by a witness.’’ Id., 672; see also State v. Coleman,
83 Conn. App. 672, 678–79, 851 A.2d 329, cert. denied,
271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544
U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005).
We are mindful that ‘‘[i]ntent may be, and usually is,
inferred from the defendant’s verbal or physical con-
duct. . . . Intent may also be inferred from the sur-
rounding circumstances. . . . The use of inferences
based on circumstantial evidence is necessary because
direct evidence of the accused’s state of mind is rarely
available. . . . Furthermore, it is a permissible, albeit
not a necessary or mandatory, inference that a defen-
dant intended the natural consequences of his voluntary
conduct.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Bennett-Gibson, supra, 84 Conn.
App. 53.
Before addressing the specific arguments in this case,
it is helpful to review our Supreme Court’s decision in
State v. Ortiz, supra, 312 Conn. 551, which both parties
have discussed in their respective briefs. In that case,
the defendant admitted to Louis Labbadia that he had
committed a burglary in the town of Haddam. Id., 554–
55. That same day, Labbadia provided this information
to the police. Id., 555. Approximately fifteen months
later, the defendant went to the home of Robin Bonita,
Labbadia’s fiance´e. Id. Bonita, who lived in Middletown,
informed the defendant that Labbadia had gone to the
police. Id. Shortly thereafter, Labbadia went missing,
and his remains subsequently were discovered approxi-
mately eight months later in Middletown. Id.
The police considered the defendant as a suspect in
the death of Labbadia, and went to speak with the
defendant’s girlfriend, Kristen Quinn. Id., 554–55. At this
time, Quinn did not provide the police with any useful
information for the investigation. Id., 555. She did, how-
ever, inform the defendant that she had been in contact
with the police, and did not want to be involved with him
because she suspected his involvement in Labbadia’s
death. Id.
One week later, the defendant, intoxicated and sui-
cidal, told Middletown police officers that he ‘‘was tired
of being accused of . . . something that he [did not]
do.’’ (Internal quotation marks omitted.) Id., 555. There-
after, the defendant went to Quinn’s home and con-
fessed to killing Labbadia with a hunting knife following
his conversation with Bonita. Id., 557. Quinn then pro-
vided this information to the police. Id.
Approximately seven weeks later, the defendant
returned to Quinn’s home, this time in possession of a
small handgun. Id. ‘‘The defendant told Quinn that he
had the gun for ‘insurance’ if she told ‘the cops about
what he said about [Labbadia].’ The defendant said that
if Quinn spoke to the police ‘[her] house was going to
go up in smoke . . . .’ The defendant stated that he
knew where Quinn’s grandparents lived. The defendant
told Quinn that he was going to ‘put [her down] on
[her] knees, put the gun to [her] head and scare [her]
straight.’ ’’ Id.
The defendant in Ortiz subsequently was found
guilty, inter alia, of tampering with a witness. Id., 558.
We affirmed his conviction, and our Supreme Court
granted his petition for certification. Id. It interpreted
§ 53a-151 (a) and concluded that ‘‘a jury may consider
a defendant’s attempt to induce a potential witness to
lie to police investigators as evidence of his intent to
affect that witness’ conduct at a future official proceed-
ing.’’ Id., 563. It stated expressly that ‘‘§ 53a-151 (a)
applies whenever the defendant believes that an official
proceeding will probably occur, even if the police are
only at the investigation stage.’’ (Emphasis in the origi-
nal.) Id., 568–69. It also explained that the statutory
phrase ‘‘about to be instituted’’ signified probability and
not temporal proximity. Id., 569. It also provided the
following example: ‘‘[W]hen an individual knows that
there is significant evidence connecting him to the
crime, or, even further, when the individual knows that
a witness with relevant information already has spoken
with the police, a jury reasonably could infer that the
individual believed that the investigation probably
would progress into an official proceeding.’’ Id., 570–71.
Next, the court in Ortiz considered the defendant’s
sufficiency claim. Id., 572–74. It noted that the defen-
dant had confessed to two people that he had killed
someone, one of those individuals had been in contact
with the police, and the defendant himself, after exhib-
iting suicidal behavior, spoke with police officers,
including the investigator working on the Labbadia
homicide. Id., 572. As a result, the jury had sufficient
evidence to find that an official proceeding would be
instituted. Id., 572–73. Additionally, based on defen-
dant’s threats to Quinn, the jury was free to find that he
had intended to induce her to testify falsely or withhold
testimony at an official proceeding. Id., 573–74. Accord-
ingly, our Supreme Court concluded that the jury rea-
sonably could have concluded that the evidence
established the defendant’s guilt as to the charge of
tampering with a witness beyond a reasonable doubt. Id.
In the present case, the defendant challenges only
the requirement that the state prove that she sent text
messages to Rajewski with the intent to induce him to
testify falsely. Specifically, she contends that it was too
speculative for the jury to infer that she possessed the
required intent to induce Rajewski to lie or withhold
testimony at a future official proceeding at the time she
texted him. She also argues that it would have been
speculation for the jury to find that Rajewski would in
fact testify when a future official proceeding could be
resolved via a nolle prosequi, diversionary program or
guilty plea. In other words, it simply was not probable
that a ‘‘criminal court proceeding’’ would occur in which
Rajewski would testify. Finally, she maintains that, at
most, the jury could infer that she had attempted to
prevent his arrest.
The defendant’s argument suffers from two flaws.
First, she incorrectly assumes that the future official
proceeding was limited to Rajewski’s criminal trial. She
offers no support for this interpretation of § 53a-151
(a). In State v. Pommer, supra, 110 Conn. App. 614, we
stated: ‘‘An official proceeding includes any proceeding
held or that may be held before any judicial official
authorized to take evidence under oath.’’ (Emphasis
added.) Thus, the official proceeding was not limited
to a prosecution of Rajewski, but included a prosecu-
tion of Babcock, Moulson, or the defendant. Accord-
ingly, we disagree with the defendant’s interpretation
of the ‘‘official proceeding’’ language contained in § 53a-
151 (a).
Second, and more importantly, we disagree that the
evidence in the present case was insufficient to support
a finding that ‘‘an official proceeding was pending, or
about to be instituted . . . .’’ Our precedent contra-
dicts the defendant’s argument. In State v. Foreshaw,
214 Conn. 540, 541, 572 A.2d 1006 (1990), the defendant
was charged with murder, carrying a pistol without a
permit and tampering with physical evidence. In that
case, the defendant exchanged words with a third party
near a convenience store. Id., 542. The victim admon-
ished the defendant for her ‘‘vile language.’’ Id. After
disappearing briefly behind a nearby building, the
defendant returned, shot and killed the victim. Id., 543.
The defendant immediately fled in her vehicle, throwing
the gun out of the window prior to her apprehension. Id.
The state charged the defendant, inter alia, with a
violation of General Statutes (Rev. to 1989) § 53a-155
(a), which provides in relevant part: ‘‘A person is guilty
of tampering with . . . physical evidence if, believing
that an official proceeding is pending, or about to be
instituted, he: (1) Alters, destroys, conceals or removes
any record, document or thing with purpose to impair
its verity or availability in such proceeding.’’ (Emphasis
in original.) State v. Foreshaw, supra, 214 Conn. 547.9
On appeal in Foreshaw, the defendant claimed that
the state had failed to present sufficient evidence to
support her conviction. Id., 549–51. ‘‘In particular, the
defendant argues that because she discarded the gun
prior to any contact with law enforcement officers or
the judicial system, she could not have believed an
official proceeding was ‘about to be instituted.’ ’’ Id.,
550. Our Supreme Court disagreed, stating: ‘‘It is true
that at the time the defendant discarded the gun, no
official proceeding had in fact been instituted. The stat-
ute, however, speaks to that which is readily apt to
come into existence or be contemplated and thus
plainly apples to the official proceeding arising out such
incident. The crucial role police involvement would play
in that process cannot be disputed.’’ Id., 551.
In the present case, the jury reasonably could have
found that the defendant tampered with Rajewski by
sending him text messages shortly after his altercation
with Moulson. The timing of this tampering is similar
to the facts of State v. Foreshaw, supra, 214 Conn. 543,
where the defendant tampered with the evidence by
throwing the gun out of the car window while fleeing
from the crime scene. Additionally, the text messages
from the defendant encouraged Rajewski to lie to
Baker. See State v. Ortiz, supra, 312 Conn. 563; id.,571–72 (jury may consider defendant’s attempt to
induce potential witness to lie to police investigators
as intent to affect that witness’ conduct at future official
proceeding); see also, e.g., State v. Higgins, 74 Conn.
App. 473, 484, 811 A.2d 765 (state may establish second
prong of tampering statute by proving defendant urged
another to testify falsely), cert. denied, 262 Conn. 950,
817 A.2d 110 (2003). The evidence established that the
defendant was aware of Baker’s investigation of the
physical altercation involving Rajewski, Babcock and
Moulson. The jury could also find that the defendant,
knowing that Baker investigated the physical alterca-
tion that had occurred at Bunny Road and had learned
the identity of the participants, including Rajewski,
believed than an official proceeding probably would
result therefrom. See State v. Ortiz, supra, 572–73; State
v. Pommer, supra, 110 Conn. App. 619–20. Furthermore,
these cases do not support the defendant’s argument
that we must consider the possibility that a future offi-
cial proceeding ultimately may be resolved by means
of a nolle prosequi, diversionary program or a guilty
plea, obviating the need for Rajewski’s testimony.
Instead, our focus remains on whether a future official
proceeding, i.e. a criminal trial, is probable. For these
reasons, we conclude that the defendant’s insufficiency
claim with respect to her conviction of tampering with
a witness must fail.10
The judgment is reversed only with respect to the
defendant’s conviction of interfering with an officer
and the case is remanded with direction to render a
judgment of acquittal on that charge and to resentence
the defendant on the conviction of tampering with a
witness. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
We note that this case is replete with conflicting testimony regarding
the timing and nature of the relationships between the various parties, as
well as the events of the night of July 24, 2015, and the early morning of
July 25, 2015. It was for the jury, and not this court, to resolve discrepancies
in the testimony. We emphasize that ‘‘we must defer to the finder of fact’s
evaluation of the credibility of the witnesses that is based on its invaluable
firsthand observation of their conduct, demeanor and attitude. . . . [The
fact finder] is free to juxtapose conflicting versions of events and determine
which is more credible. . . . It is the [fact finder’s] exclusive province to
weigh the conflicting evidence and to determine the credibility of witnesses.
. . . The [fact finder] can . . . decide what—all, none or some—of a wit-
ness’ testimony to accept or reject.’’ (Citation omitted; internal quotation
marks omitted.) State v. Colon, 117 Conn. App. 150, 154, 978 A.2d 99 (2009).
2
In July, 2015, the defendant and Moulson lived together, but no longer
were involved romantically.
3
To the extent that the defendant claims the evidence was insufficient
to sustain her conviction of § 53a-167 (a) because she sent the text message
to a third party, Rajewski, and not the state trooper, Baker, we conclude
that she abandoned such a contention as a result of an inadequate brief.
‘‘We are not required to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly.’’ (Internal quotation marks omitted.) State
v. Fowler, 178 Conn. App. 332, 345, 175 A.3d 76 (2017), cert. denied, 327
Conn. 999, 176 A.3d 556 (2018). Other than a passing reference to the fact
that her communication was directed at Rajewski, the defendant failed to
provide any argument or analysis. Accordingly, we decline to consider this
argument. See State v. Navarro, 172 Conn. App. 496, 500–501 n.1, 160 A.3d
444, cert. denied, 326 Conn. 910, 164 A.3d 681 (2017).
4
Neither Rajewski’s cell phone nor the police report was admitted into
evidence. Instead, the prosecutor used the police report to refresh Baker’s
recollection as to the text message conversation between the defendant
and Rajewski.
5
Ultimately, our Supreme Court declined to reach these issues. State v.
Sabato, supra, 321 Conn. 734 n.7.
6
In State v. Aloi, supra, 280 Conn. 833–35, our Supreme Court concluded
that the refusal to comply with a police command to provide identification
during a Terry stop was not categorically excluded from the broad language
of § 53a-167a. Such a refusal, though done peacefully, was likely to impede
or delay the police investigation. Id., 834. It also noted that it would have
been impractical, if not impossible, to draft a statute that detailed with
precision ‘‘exactly what obstructive conduct is proscribed.’’ (Emphasis
added.) Id., 837. Finally, it determined, under the facts and circumstances
of that case, that the evidence was sufficient to support the defendant’s
conviction for violating § 53a-167a. Id., 841–44; see also State v. Silva, 285
Conn. 447, 456–61, 939 A.2d 581 (2008) (evidence sufficient to support
conviction for violating § 53a-167a where defendant, about to receive infrac-
tion ticket, refused to provide police with driver’s license, registration and
insurance information and for fleeing the scene to avoid infraction ticket).
Contrary to the present case, which involved verbal communications to
Rajewski, the defendants in Aloi and Silva engaged in obstructive conduct
by refusing to provide information sought by the police.
7
We note that the court instructed the jury that the tampering of a witness
count applied either to Rajewski or Babcock. The defendant did not object
to the court’s charge. On appeal, the defendant claims that her right to due
process was violated because the state’s information did not charge her
with tampering with Babcock. She further claims that the evidence was
insufficient to sustain her conviction for violating § 53a-151 (a) with respect
to Babcock. In its brief, the state expressly conceded that it had not pursued
a charge of tampering with a witness as to Babcock. With respect to the
defendant’s due process claim, the state argued that it failed under the third
prong of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 813 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
Specifically, the state claims that it ‘‘never proceeded on any theory of the
case alleging that the defendant had tampered with Babcock, and presented
no evidence from which the jury could have found the defendant guilty
under that theory of culpability. Consequently, the defendant’s due process
claim lacks a factual predicate, and must fail.’’ We agree that, despite the
court’s instructions, the state presented its case of tampering with a witness
solely as to Rajewski, and that the defendant cannot demonstrate a violation
of her right to due process under these facts and circumstances.
8
‘‘The term witness is broadly defined as any person summoned, or who
may be summoned, to give testimony in an official proceeding . . . . Gen-
eral Statutes § 53a-146 (6). The statutory scheme also includes a broad
definition of official proceeding, that is, any proceeding held or which may
be held before any legislative, judicial, administrative, or other agency or
official authorized to take evidence under oath, including any referee, hear-
ing examiner, commissioner, or notary or other person taking evidence in
connection with any proceeding. . . . General Statutes § 53a-146 (1).’’
(Emphasis in original; internal quotation marks omitted.) State v. Ortiz,
supra, 312 Conn. 562 n.6.
9
In State v. Pommer, supra, 110 Conn. App. 617, we adopted and applied
our Supreme Court’s construction of the ‘‘official proceeding is pending, or
about to be instituted’’ language in § 53a-155 (a) from State v. Foreshaw,
supra, 214 Conn. 540, to the identical language in § 53a-151 (a).
10
On remand, the court must resentence the defendant as to this convic-
tion. See State v. Wade, 297 Conn. 262, 268, 998 A.2d 1114 (2010); State v.
Crenshaw, 172 Conn. App. 526, 530, 161 A.3d 638, cert. denied, 326 Conn.
911, 165 A.3d 1252 (2017).