S.B-R v. J.D ( 2021 )

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S. B-R. v. J. D.—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. I
disagree with the conclusion of the majority that (1)
the trial court did not apply an objective standard to
the first element of stalking in its determination of ‘‘rea-
sonable fear’’ and (2) there is insufficient evidence to
support a finding that it was reasonably likely that the
defendant, J. D., would continue to stalk or to commit
acts designed to intimidate or retaliate against the plain-
tiff, S. B-R., as required for an order of civil protection
pursuant to General Statutes § 46b-16a. To the contrary,
I would conclude that (1) the trial court correctly fol-
lowed the statute, and (2) there is sufficient evidence
in the record to support the trial court’s decision grant-
ing the plaintiff’s application for an order of civil protec-
tion pursuant to § 46b-16a. Accordingly, I would affirm
the judgment of the trial court.1
I begin by setting forth the factual background of this
action, as gleaned from the record. At all relevant times,
the plaintiff and the defendant were students at a com-
munity college, where they were both enrolled in the
college’s nursing program. On July 8, 2019, the plaintiff
filed an application for an order of civil protection. A
hearing was held on the plaintiff’s application on July
22, 2019, at which both the plaintiff and the defendant
testified.
The plaintiff testified that she knew the defendant
from school and that, on or about February 28, 2019,
the defendant had sent her an ‘‘absurd amount of e-mails
stating that, first, my marriage would have intervene[d]
with things between us . . . .’’ When asked whether
she was married, the plaintiff explained that she was
not and that, in an effort to get the defendant to stop
communicating with her, she had lied to the defendant
and told him that she was getting married. When asked
whether the defendant had made any statements to her
that made her fear for her personal safety, the plaintiff
responded yes. Specifically, she testified about an
e-mail that the defendant had sent her on or about
March 1, 2019, which stated: ‘‘Honestly, I want to jump
on your back a little a rage and that would be dumb.’’
The plaintiff further testified that, on March 3, 2019,
the defendant sent her text messages about being sui-
cidal, and that, on February 28, 2019, while in the pres-
ence of another person, he had made comments about
her breasts that made her fearful of his conduct. With
respect to the comments about her breasts, the plaintiff
stated that the defendant ‘‘was being cocky and . . .
was trying to intimidate [her].’’ Although the plaintiff
acknowledged that the communications from the defen-
dant ceased after March 3, 2019, she testified in July,
2019, that his communications with her caused her to
fear for her personal safety, that she still feared for her
personal safety, that she planned to attend classes at
the community college in the fall, and that she feared
that her safety would be at risk if she had any contact
with the defendant.
The defendant testified that, in the upcoming fall
semester, he did have classes with the plaintiff at the
community college. He also acknowledged that he suf-
fers from ‘‘a major depressive disorder,’’ which includes
suicidal thoughts. Although he claimed that the symp-
toms underlying the disorder are ‘‘all controlled,’’ he
also acknowledged that all of the symptoms have ‘‘not
gone yet.’’
The court granted the plaintiff’s application for an
order of civil protection in an oral decision, stating
that the ‘‘[s]tatute is very clear that indicates that such
person causes reasonable fear—the conduct of the
defendant causes reasonable fear for the physical
safety.2 So she’s made it very clear [that] she’s very
apprehensive, her conduct on the stand indicated she’s
reliving some of these things. Things which, depending
on your level of threshold and thickness of skin, become
more or less significant. But, it’s very clear that this is
very upsetting to her, and it’s affected her ability to
carry on life’s activities.’’ (Footnote added.) The court
ordered the defendant not to have any contact with the
plaintiff and to stay 100 yards away from the plaintiff,
and its order was effective for one year, until July 22,
2020.3
The decision of the majority to reverse the judgment
of the trial court hinges on the majority’s conclusion
that (1) the trial court did not apply an objective stan-
dard to the first element of stalking in its determination
of ‘‘reasonable fear,’’ and (2) ‘‘the plaintiff presented
no evidence that the defendant would continue to stalk
her.’’4 I disagree and would conclude, after ‘‘allow[ing]
every reasonable presumption in favor of the correct-
ness of [the trial court’s] action’’; (internal quotation
marks omitted) Kayla M. v. Greene, 163 Conn. App.
493, 504, 136 A.3d 1 (2016); that the trial court’s decision
was reasonably supported by the evidence in the record
or the inferences drawn therefrom.
I agree with the majority that a subjective-objective
test applies to the statute. I respectfully disagree, how-
ever, with the majority’s conclusion that the trial court
did not consider the objective part of the test. The trial
court was reading from the statute when it issued its
decision. Its emphasis on the subjective part of the test
does not necessarily mean that the objective part was
excluded. In Connecticut, our appellate courts do not
presume error on the part of the trial court. See Caroth-
ers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268(1990). Rather, ‘‘we presume that the trial court, in
rendering its judgment . . . undertook the proper anal-
ysis of the law and the facts.’’ S & S Tobacco & Candy
Co. v. Greater New York Mutual Ins. Co., 224 Conn.
313, 322, 617 A.2d 1388 (1992). In my view, the reference
to Muhammed Ali and Whistler’s Mother, and to a per-
son with thin skin, may be interpreted as an example
of the judge considering how much each case had to be
determined on the basis of the facts and circumstances
surrounding it, and whether a reasonable person would
be fearful under the circumstances. Indeed, in cases in
which there has been no finding by the trial court,
appellate courts have searched the record to see if
the trial court’s decision had an adequate basis in the
record. Thus, in Brett Stone Painting & Maintenance,
LLC v. New England Bank, 143 Conn. App. 671, 681,
72 A.3d 1121 (2013), in which a finding of default was
a critical element in the case and the trial court had not
made that explicit finding, the Appellate Court reviewed
the record in its conclusion that an implicit finding of
default was warranted. Likewise, in Young v. Commis-
sioner of Correction, 104 Conn. App. 188, 190 n.1, 932
A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d
416 (2008), in which the question of whether the habeas
petitioner was in custody had not been decided in order
for the petitioner to maintain the habeas action, the
Appellate Court was able to infer from the transcript
the facts on which the trial court’s decision appeared
to have been predicated. In the present case, the tran-
script is replete with the defendant’s admissions to his
deplorable conduct. These admissions would certainly
justify the inference that the objective standard had
been met.
In Kayla M. v. Greene, supra, 163 Conn. App. 506, this
court explained that ‘‘an applicant for a civil protection
order on the basis of stalking pursuant to § 46b-16a
must prove only that there are ‘reasonable grounds to
believe’ that every element is met and that such conduct
will continue.’’ In Kayla M., this court found that ‘‘there
was sufficient evidence in the record from which the
court reasonably could have concluded that there were
reasonable grounds to believe that the plaintiff subjec-
tively feared for her physical safety.’’ Id., 511. Specifi-
cally, this court found that the trial court had credited
the plaintiff’s statements in her affidavit that she felt
threatened by the defendant Edward Greene after he
had grabbed her arm at her workplace and sent her a
threatening e-mail, and that the trial court reasonably
could have inferred, on the basis of those facts, that
the plaintiff feared for her physical safety. Id. Moreover,
although Greene testified at the hearing on the plaintiff’s
application for a civil protection order that ‘‘he had
no intention of ever communicating with the plaintiff
again’’; id.; the trial court nevertheless found that he
was ‘‘ ‘unnaturally obsessed’ ’’ with the plaintiff, and it
reasonably inferred, on the basis of that obsession, that
he ‘‘would continue his previous course of conduct.’’
Id., 511, 512.
In the present case, the court reasonably could have
found, on the basis of the testimony presented, that
there were reasonable grounds to believe that the plain-
tiff feared for her physical safety and that the defendant
would continue in his course of conduct. We do not
expect our trial judges to be soothsayers. All that is
required is that there is a reasonable probability that
the defendant will repeat the reported conduct such
that there is a risk of imminent harm to the plaintiff.
In this case, I cannot say that the decision of the trial
court was an abuse of discretion or that its finding
regarding the plaintiff’s clear apprehension of the defen-
dant was clearly erroneous.
The record here clearly shows that the defendant’s
conduct toward the plaintiff was truly bizarre and fright-
ening. Clearly, the conduct was aberrant, obsessive,
and delusional. He also threatened future assaultive
conduct against the plaintiff when he said that he
wanted to ‘‘jump on [her] back,’’ in rage, even though
he acknowledged that ‘‘that would be dumb.’’ He further
indicated delusional behavior when, in response to the
plaintiff’s statement to him that she was getting married,
he stated that her marriage would interfere with their
relationship. There was no relationship between the
plaintiff and the defendant. On the basis of the plaintiff’s
testimony, however, the trial court reasonably could
have inferred that the defendant wanted more than a
mere friendship and that the plaintiff must have realized
that, as she otherwise would not have invented the
story about being married. See In re Adalberto S., 27
Conn. App. 49, 54, 604 A.2d 822 (‘‘court may draw rea-
sonable, logical inferences from the facts proven’’), cert.
denied, 222 Conn. 903, 606 A.2d 1328 (1992).
The defendant also testified that he has a major
depressive disorder that causes him to have suicidal
thoughts and that the disorder, which caused his
actions, has not fully gone away. Much like in Kayla
M. v. Greene, supra, 163 Conn. App. 512, in which this
court upheld the issuance of a civil protection order
based, in part, on the defendant’s obsession with the
plaintiff, the defendant in the present case was fixated
on the plaintiff, as evidenced by the numerous
unwanted e-mail and text messages that he sent to her.
In testifying about his major depressive disorder,5 the
defendant stated that he thinks about things over and
over, and he also acknowledged that the symptoms and
depression associated with his disorder have not gone
away yet. The trial court reasonably could have inferred
from that testimony that it was reasonably probable
that he would continue his conduct toward the plaintiff
when school resumed. See State v. Richards, 196 Conn.
App. 387, 397, 229 A.3d 1157 (‘‘in determining whether
the evidence supports a particular inference . . . an
inference need not be compelled by the evidence;
rather, the evidence need only be reasonably suscepti-
ble of such an inference’’ (internal quotation marks
omitted)), cert. granted, 335 Conn. 931, 236 A.3d 218(2020); Hannon v. Redler, 117 Conn. App. 403, 406, 979
A.2d 558 (2009) (‘‘[i]t is within the province of the trial
court to find facts and draw proper inferences from the
evidence presented’’ (internal quotation marks omit-
ted)); Lupoli v. Lupoli, 38 Conn. App. 639, 643, 662
A.2d 809 (‘‘the role of the trial court as fact finder [is]
to judge the credibility of the witnesses, to weigh the
evidence and to draw logical inferences and conclu-
sions from the facts proven’’), cert. denied, 235 Conn.
907, 665 A.2d 902 (1995).
I also think it is important to note that the trial court
in the present case had the benefit of hearing from both
parties during the hearing and judging their credibility.
The court could have accepted or rejected all or a part
of the defendant’s testimony. ‘‘Credibility must be
assessed . . . not by reading the cold printed record,
but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences therefrom.’’ (Internal quotation marks omit-
ted.) R.T. Vanderbilt Co. v. Hartford Accident & Indem-
nity Co., 171 Conn. App. 61, 93–94, 156 A.3d 539 (2017),
aff’d, 333 Conn. 343, 216 A.3d 629 (2019). It would strain
credulity for the court to have accepted the defendant’s
testimony that he had ideas of hurting himself only and
never anyone else, when he clearly had issued a threat
to jump on the plaintiff’s back in rage. Further, the
court obviously did not choose to accept the defen-
dant’s testimony that his condition was under control
when the hearing occurred only a few months after his
bizarre acts and he was going to attend the same school
with the plaintiff in September. Moreover, the defendant
freely admitted that he had considered suicide. Such
an act of violence would certainly justify a trial judge
to find that a protective order should issue to protect
someone who had spurned him and against whom he
had made a threat to jump on her back in rage.
The threat of future conduct has to be a significant
element in any trial court’s decision to issue a protective
order, and there certainly was sufficient evidence of a
probability of future assaultive conduct here to cause
reasonable fear in the plaintiff and to satisfy the objec-
tive standard requirement. ‘‘[A]n applicant for a civil
protection order on the basis of stalking pursuant to
§ 46b-16a must prove only that there are reasonable
grounds to believe that every element is met and that
such conduct will continue. . . . In determining
whether there are reasonable grounds to believe that
stalking occurred, it is instructive that, in the criminal
context, [t]he phrase reasonable grounds to believe is
synonymous with probable cause. . . . While probable
cause requires more than mere suspicion . . . the line
between mere suspicion and probable cause necessarily
must be drawn by an act of judgment formed in light
of the particular situation and with account taken of
all the circumstances.’’ (Citations omitted; internal quo-
tation marks omitted.) Kayla M. v. Greene, supra, 163
Conn. App. 506. The defendant’s credibility, or lack
thereof, is a key element in this determination.
The majority concludes that it must reverse because
the court did not consider the objective standard and
there is no evidence of future conduct. I respectfully
disagree because of the defendant’s threat of jumping
on the plaintiff’s back in rage, his unwanted e-mails,
the comment about the plaintiff’s breasts, and his over-
all lack of credibility. I further disagree because it would
be the rare case in which a defendant testified that he
would keep doing the acts which brought him before
the court or told someone else to that effect. The defen-
dant in this case engaged in obsessive behavior. At the
hearing, he admitted that part of his major depressive
disorder has an obsessive component, namely, that he
would keep thinking about the same thing over and
over. He further testified that his condition was not
fully resolved, as he must take medication every night
and get treatment from counselors and therapists.
Because he had threatened the plaintiff, his testimony
that he never thought about hurting anyone else is not
credible. In my view, reviewing both the evidence and
the reasonable inferences derived therefrom, there
clearly was no abuse of discretion in this matter.
For the foregoing reasons, I respectfully dissent.
1
Our Supreme Court has not yet ruled on the issue of whether a § 46b-
16a protective order may be granted when (1) there is prior evidence of
criminal stalking, (2) there is a threat of a future criminal act, and (3) the
defendant’s testimony is not credible.
2
The court clearly relied on General Statutes § 53a-181e (a), which pro-
vides that a person is guilty of stalking in the third degree when such person
‘‘recklessly causes another person to reasonably . . . fear for his or her
physical safety . . . .’’
3
Although the order of civil protection has expired, the present appeal
is not moot. See C. A. v. G. L., 201 Conn. App. 734, 736 n.4, 243 A.3d 807(2020) (applying to order of civil protection under § 46b-16a principle that
‘‘expiration of a six month domestic violence restraining order issued pursu-
ant to General Statutes § 46b-15 does not render an appeal from that order
moot due to adverse collateral consequences’’ (internal quotation marks
omitted)).
4
The majority mentions in its decision the fact that the trial court made
no explicit finding on the record that ‘‘the defendant would continue to
commit acts of stalking against the plaintiff’’ but never states that such an
express finding is required. Pursuant to § 46b-16a (b), a trial court may issue
an order of civil protection if it finds ‘‘that there are reasonable grounds to
believe that the respondent has committed acts constituting grounds for
issuance of an order . . . and will continue to commit such acts or acts
designed to intimidate or retaliate against the applicant . . . .’’ This court
has explained previously that ‘‘an applicant for a civil protection order on
the basis of stalking pursuant to § 46b-16a must prove only that there are
‘reasonable grounds to believe’ that every element is met and that such
conduct will continue.’’ Kayla M. v. Greene, 163 Conn. App. 493, 506, 136
A.3d 1 (2016). Neither the statute nor case law directs that the court’s
findings must be written or express. Moreover, appellate courts ‘‘presume
that the trial court, in rendering its judgment . . . undertook the proper
analysis of the law and the facts.’’ (Internal quotation marks omitted.) Brett
Stone Painting & Maintenance, LLC v. New England Bank, 143 Conn. App.
671, 681, 72 A.3d 1121 (2013). In the present case, given the trial court’s
reference, in its oral decision, to the ‘‘very clear’’ requirements of the ‘‘stat-
ute,’’ it reasonably can be inferred that the court relied on the language in
the statute in rendering its decision.
5
A significant portion of the defendant’s testimony on direct examination
concerned his major depressive disorder, from which the defendant readily
acknowledged that he suffers. He also testified and acknowledged that one
of the behaviors of his disorder is obsessive type behavior. Under these
circumstances, the court was free to accept or reject all or part of the
defendant’s testimony about his obsessive type behavior. See Kayla M. v.
Greene, supra, 163 Conn. App. 511–12 (court reasonably could have inferred
from evidence produced at hearing that defendant was ‘‘ ‘unnaturally
obsessed’ ’’ with plaintiff, and, on basis of that obsession, court could have
inferred that defendant would continue his previous course of conduct).