State v. Sabato ( 2014 )

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STATE OF CONNECTICUT v. STEPHEN
M. SABATO
(AC 35524)
DiPentima, C. J., and Keller and West, Js.
Argued March 4—officially released September 2, 2014
(Appeal from Superior Court, judicial district of
Danbury, geographical area number three, Pavia, J.)
Glenn W. Falk, assigned counsel, with whom, on the
brief, was Deborah M. Frankel, legal fellow, for the
appellant (defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Stephen J.
Sedensky III, state’s attorney, and Sean P. McGuinness,
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Stephen M. Sabato,
appeals from the judgment of conviction, rendered after
a jury trial, of attempt to interfere with an officer in
violation of General Statutes §§ 53a-49 and 53a-167a (a)
(2), and intimidating a witness in violation of General
Statutes § 53a-151a (a) (1). On appeal, the defendant
claims that there was insufficient evidence to convict
him of (1) attempt to interfere with an officer because
(A) § 53a-167a does not apply to physical or verbal
conduct directed against a third party and (B) applying
§ 53a-167a to conduct with a possible indirect effect
upon a police investigation would render the statute
void for vagueness; and (2) intimidating a witness. We
reverse in part and affirm in part the judgment of the
trial court.
The jury reasonably could have found the following
facts. On November 4, 2011, Jazmyn Lopez-Gay, accom-
panied by the defendant and other friends, visited a
nightclub in Danbury. While at the nightclub, her cell
phone was stolen. The following day, she used an appli-
cation on her computer to track the cell phone’s loca-
tion that indicated that it was near the Danbury mall.
She then called the Danbury police who went to look
for the cell phone, but were unable to find it.
That same day, November 5, 2011, the defendant
called Ian Mason, an acquaintance, and asked him to
pick him up and drive him to the Danbury mall. During
that trip, the defendant sold Mason the cell phone.
Because the cell phone was password protected, Mason
was unable to access its functions or its contents. Seek-
ing to gain access, Mason contacted Michael Barbour,
a friend who used to perform work servicing cell
phones, and brought the cell phone to his home in
Newtown.
Meanwhile, occurring parallel to these events, Lopez-
Gay again used the tracking application on her com-
puter, which indicated that her cell phone was located
at Barbour’s home in Newtown. Lopez-Gay then called
the Newtown Police Department who sent police officer
Michael McGowan to that location. Once there, McGo-
wan spoke with Mason, who relinquished the cell
phone.
Later that night, Mason went to the Newtown Police
Department. He was questioned by a police officer and
eventually provided a sworn, written statement
recounting how he came to possess the cell phone.
Around this time, Mason sent a text message to the
defendant telling him that he was at the police station.
In response, the defendant sent a text message to Mason
telling him not to write a statement and to ‘‘keep [his]
mouth shut.’’ The message scared Mason and caused
him to hesitate before making his statement.
had made a statement to the police. On November 12,
2011, the defendant sent Mason a series of threatening
Facebook messages.1 The messages shared similar con-
tent. In one message the defendant wrote: ‘‘U wrote a
statement regardless. Hearsay is nothing they can’t
arrest u unless they have a statement and that’s what
u did u wrote a fucking statement. . . . I thought we
were straight and u wouldn’t be dumb enough to write
a statement after telling u that day what we did to the
last snitch. Ur a snitch kid that’s what it comes down
to and ur gonna get treated like a snitch u wrote that
statement u best be ready for the shit u got urself into.
U think it’s a fuckin game and all this is fine and were
gonna be cool cause u got scared when the cops pressed
u and u folded like every other snitch when they had
NOTHING on either of us. U fucked up I’d watch out
if I were u my boys are real pissed at u for this knowing
I’m already in enough shit a’s it is. Don’t worry about
me worry about them period.’’
The defendant was charged with larceny in the fifth
degree, attempt to interfere with an officer, and intim-
idating a witness. The jury found him guilty on the
attempt to interfere with an officer charge and the intim-
idating a witness charge. The court declared a mistrial
on the larceny charge. The court then rendered judg-
ment in accordance with the verdict and sentenced the
defendant to one year incarceration on the interference
charge, and to a term of six years incarceration, execu-
tion suspended after three years, with a five year period
of probation on the intimidation charge. The sentences
were to be served consecutively for a total effective
sentence of seven years incarceration, suspended after
four years, with five years of probation.2 This appeal
followed.
We begin by setting forth the standard of review
for the two claims raised on appeal. ‘‘In reviewing a
sufficiency of the evidence claim, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict, and then determine whether from the facts so
construed and the inferences reasonably drawn there-
from, the trier of fact reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . 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 rea-
sonable view of the evidence that supports the [trier’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Lewis, 148 Conn. App. 511, 514, 84 A.3d 1238,
cert. denied, 311 Conn. 940, 89 A.3d 349 (2014). When,
however, a claim of insufficient evidence turns on the
appropriate interpretation of a statute, our review is
plenary. See State v. Webster, 308 Conn. 43, 51, 60 A.3d
259 (2013).
I
The defendant claims that there was insufficient evi-
dence to convict him of attempt to interfere with an
officer for two reasons. First, he argues that § 53a-167a
does not proscribe physical or verbal conduct directed
against a third party, and thus in this case, there was
insufficient evidence to establish his guilt because his
conduct was directed against Mason, and not a specific,
identifiable police officer. Second, he contends that
applying § 53a-167a to his conduct, which was outside
the presence of a police officer, would render the stat-
ute void for vagueness. We agree that there was insuffi-
cient evidence to support his conviction, but for
different reasons.3
Our Supreme Court’s decision in State v. Williams,
205 Conn. 456, 534 A.2d 230 (1987) resolves this claim.
In Williams, the defendant had matched a description
of a burglary suspect and had been stopped and
detained by the police. Id., 467. While detained, he made
loud protestations to the point of attracting onlookers,
which led to his arrest for breach of the peace. Id., 468.
Upon being informed of his arrest, the defendant again
reacted and had to be forcibly subdued. Id. He was
charged and later convicted of interfering with an offi-
cer in violation of § 53a-167a.4 Id., 459. On appeal, the
defendant challenged the constitutionality of that stat-
ute on two grounds. Id. In the first instance, he raised
a vagueness challenge to the statute, which the court
rejected. Id., 469–72. The defendant further claimed that
the statute was fatally overbroad. Id., 472.
Contrasting § 53a-167a with another state’s interfer-
ing with an officer statute that had been struck down
on overbreadth grounds in Houston v. Hill, 482 U.S.
451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987), the court
concluded that § 53a-167a was not impermissibly over-
broad. Id., 472–73. The court reasoned that the statute
had not been applied ‘‘to conduct arguably falling within
the protection afforded by the first amendment to the
United States constitution or article first, § 5, of the
Connecticut constitution.’’ State v. Williams, supra, 205
Conn. 473. The court cautioned, however, that ‘‘[t]o
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.’’
(Emphasis added; internal quotation marks omitted.)
Id.
Applying Williams to the present case, we conclude
that there was insufficient evidence to convict the
defendant of attempt to interfere with an officer. By
long form information, the defendant was charged
under § 53a-167a exclusively for a text message he sent
to Mason on November 5, 2011, 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 immedi-
ate breach of the peace.’’ State v. Williams, supra, 205
Conn. 473. They were therefore not proscribed by § 53a-
167a. As a result, we conclude that there was insuffi-
cient evidence presented to sustain the defendant’s con-
viction for attempt to interfere with an officer.
II
The defendant next claims that there was insufficient
evidence to convict him of intimidating a witness. Spe-
cifically, he argues that the conduct underlying his
charge—the Facebook messages sent to Mason—did
not constitute proof beyond a reasonable doubt that he
intended to influence, delay or prevent Mason from
testifying in an official proceeding within the meaning
of § 53a-151a. We disagree.
Section 53a-151a provides in relevant part: ‘‘A person
is guilty of intimidating a witness when, believing that
an official proceeding is pending or about to be insti-
tuted, such person uses, attempts to use or threatens
the use of physical force against a witness or another
person with intent to (1) influence, delay or prevent
the testimony of the witness in the official proceeding
. . . .’’ General Statutes § 53a-146 (1) defines ‘‘official
proceeding’’ in relevant part as ‘‘any proceeding held
or which may be held before any legislative, judicial,
administrative or other agency or official authorized to
take evidence under oath . . . .’’ Section 53a-146 (6)
defines ‘‘witness’’ as ‘‘any person summoned, or who
may be summoned, to give testimony in an official pro-
ceeding.’’
Recently, our Supreme Court, interpreting a similar
statute, clarified the meaning of the phrase ‘‘believing
that an official proceeding is pending or about to be
instituted.’’ See State v. Ortiz, 312 Conn. 551, 562,
A.3d (2014). In that case, the court was interpreting
the language of the witness tampering statute, General
Statutes § 53a-151 (a), which 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 sum-
moning him to testify or absent himself from any official
proceeding.’’ The court construed that statute to apply
so long as ‘‘the defendant believes that an official pro-
ceeding will probably occur, it does not matter whether
an official proceeding is actually pending or is about
to be instituted.’’ (Emphasis in original.) State v. Ortiz,
supra, 569. It further determined that the phrase ‘‘about
to be instituted,’’ ‘‘signifies probability, as mere tempo-
ral proximity does not sufficiently implement the goal
of punishing the obstruction of justice.’’ Id. Because
the witness tampering statute, § 53a-151 (a), and the
intimidating a witness statute, § 53a-151a (a), share sim-
ilar language and are located within the same part of
our criminal statutes, we apply the interpretations of
Ortiz to our analysis here. See State v. Rivera, 250
Conn. 188, 201, 736 A.2d 790 (1999) (‘‘in the absence
of persuasive evidence to the contrary, we may presume
that a word used in different parts of the same statutory
scheme has the same meaning’’).
The record shows that there was sufficient evidence
for the jury to find that the defendant believed that
an official proceeding probably would occur. In one
Facebook message, the defendant acknowledged that
the police were ‘‘getting warrants’’ and ‘‘building a case’’
against him. In a different message, the defendant
wrote, ‘‘I’ll eat the charge . . . .’’ In yet another mes-
sage, the defendant told Mason that he was ‘‘already in
enough shit a’s it is.’’ From these statements, the jury
reasonably could have inferred that the defendant
believed that an official proceeding probably would
be instituted.
Similarly, the record establishes that there was suffi-
cient evidence for the jury to conclude that the defen-
dant believed that Mason probably would be summoned
to testify. The term ‘‘witness’’ is broad, as it includes
‘‘any person summoned, or who may be summoned, to
give testimony . . . .’’ (Emphasis added.) General Stat-
utes § 53a-146 (6). The Facebook messages show that
the defendant knew that Mason had provided a state-
ment implicating him in the cell phone theft. It was
therefore reasonable for the jury to infer that the defen-
dant believed that Mason probably would be called to
testify in conformity with that statement at a future pro-
ceeding.
The record further establishes that there was suffi-
cient evidence for the jury to reasonably find that the
defendant intended to influence, delay or prevent
Mason’s testimony at an official proceeding. For exam-
ple, in one Facebook message, the defendant wrote,
‘‘Ur gonna learn the hard way that snitches get what’s
comin to em straight the fuck up.’’ In a later message,
the defendant wrote: ‘‘Bro snitches get fucked up . . . .
The term snitches get stitches is because of snitches.
. . . U know that this shit isn’t gonna just be left alone
for what u did. I just hope ur ready and prepared for
the repercussions for ur actions cause I sure am. I’ll
see u very soon.’’ In yet another message, the defendant
wrote, ‘‘just know that this shit isn’t gonna go unsettled
and u can take it how u want but shit is gonna get
handled . . . .’’ In his final message, the defendant
wrote: ‘‘I thought we were straight and u wouldn’t be
dumb enough to write a statement after telling u that
day what we did to the last snitch. . . . [U]r gonna get
treated like a snitch u wrote that statement u best be
ready for the shit u got urself into. . . . U fucked up
I’d watch out if I were u . . . .’’ A jury reasonably could
have inferred that the defendant intended the natural
consequences of these threats, which would have
included the influence, delay or prevention of Mason’s
testimony at a future proceeding. See State v. Duncan,
96 Conn. App. 533, 540, 901 A.2d 687, cert. denied, 280
Conn. 912, 908 A.2d 540 (2006).
Nevertheless, the defendant argues that these mes-
sages demonstrate only that he was concerned with
Mason’s statement to the police and not with preventing
Mason’s future testimony. As we have stated many times
previously: ‘‘[T]he [finder] of fact is not required to
accept as dispositive those inferences that are consis-
tent with the defendant’s innocence. . . . The [finder
or fact] may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical.’’ (Internal quotation marks
omitted.) State v. Grant, 149 Conn. App. 41, 46, 87 A.3d
1150, cert. denied, 312 Conn. 907, 87 A.3d 1150 (2014).
In the present case, considering the evidence in the
light most favorable to sustaining the verdict, the jury
reasonably could have concluded that the Facebook
messages forecasted future physical harm and that they
were sent with the intent to influence, delay or prevent
Mason’s testimony at an official proceeding.
Accordingly, we conclude that there was sufficient
evidence to support the jury’s verdict that the defendant
was guilty beyond a reasonable doubt of intimidating
a witness in violation of § 53a-151a.
The judgment is reversed only with respect to the
defendant’s conviction of attempt to interfere with an
officer and the case is remanded with direction to ren-
der judgment of acquittal on that charge and to resen-
tence the defendant on the conviction of intimidating a
witness.5 The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
‘‘Facebook is a social networking website that allows private individuals
to upload photographs and enter personal information and commentary on
a password protected ‘profile.’ An individual chooses a name under which
the Facebook profile will be listed (user name). Users create networks of
‘friends’ by sending and accepting friend requests. Subject to privacy settings
that each user can adjust, a user’s friends can see aspects of the user’s
profile, including the user’s list of friends, and can write comments that
appear on the profile. Additionally, any Facebook user can send a private
message to any other Facebook user in a manner similar to e-mail.’’ State
v. Eleck, 130 Conn. App. 632, 634 n.1, 23 A.3d 818, cert. granted on other
grounds, 302 Conn. 945, 30 A.3d 2 (2011).
2
At the sentencing hearing, the court stated that the total effective sen-
tence was six years incarceration, suspended after four years, with a period
of five years of probation. This appears to have been a misstatement.
3
After oral argument before this court, we ordered simultaneous supple-
mental briefs on the applicability of State v. Williams, 205 Conn. 456, 534
A.2d 230 (1987).
4
At that time, § 53a-167a (a) provided: ‘‘A person is guilty of interfering
with an officer when he obstructs, resists, hinders or endangers any peace
officer or fireman in performance of his duties.’’ General Statutes (Rev. to
1987) § 53a-167a. The subsequent revisions to the statute do not affect our
analysis here. See General Statutes (Rev. to 2011) § 53a-167a.
5
We note that the ‘‘aggregate package theory’’ applies to the procedural
circumstances of this case. See State v. Wade, 297 Conn. 262, 268, 998 A.2d
1114 (2010). Adhering to that theory, we vacate the defendant’s total effective
sentence in its entirety and direct the trial court to reconstruct the sentence
in any way necessary to ensure that the punishment fits both the crime and
the defendant, as long as the final sentence does not exceed the original
sentence. See id., 271–72.