State v. Reed , 176 Conn. App. 537 ( 2017 )

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STATE OF CONNECTICUT v. DORAINE REED
(AC 37726)
DiPentima, C. J., and Alvord and Lavery, Js.
Syllabus
Convicted of the crime of harassment in the second degree, the defendant
appealed to this court. The defendant’s conviction stemmed from an
incident in which she made a threatening statement during a telephone
call to a legal secretary at a law firm with which she had been engaged
in a billing dispute. On appeal, the defendant claimed, inter alia, that
the evidence was insufficient to support her conviction, contending that
the verbal content of her telephone call could not form the substantive
basis for her conviction because she lacked fair warning that State v.
Moulton (310 Conn. 337), which was decided several months after she
placed the telephone call, would broaden the scope of the second degree
harassment statute (§ 53a-183 [a] [3]) to proscribe unprotected harassing
speech. Held:
1. The evidence was sufficient to support the defendant’s conviction: the
case law prior to Moulton having limited the scope of § 53a-183 (a) (3)
to conduct and not speech, Moulton did not apply to the present case,
as the defendant lacked fair warning that she could be prosecuted for
harassment in the second degree under § 53a-183 (a) (3) on the basis
of the verbal content of her telephone call, and, contrary to the state’s
claim, even though the appeal in Moulton was pending when the defend-
ant made the telephone call, she could not reasonably have foreseen
the expansion of the scope of § 53a-183 (a) (3) in that case; nevertheless,
the state presented sufficient evidence concerning the circumstances
of the defendant’s telephone call from which the jury reasonably could
have found that the defendant, in referencing a notorious mass shooting
incident during the call, intended to harass, annoy or alarm the employ-
ees of the firm so that they would take her and her billing complaint
more seriously; moreover, pursuant to § 53a-183 (a) (3), the defendant’s
conduct in placing a single telephone call to the law firm was sufficient
to constitute harassment in the second degree when, as in the present
case, it was made with an intent to harass, annoy or alarm, as it was
clear from the statutory language that the legislature sought to punish
each telephone call made with the requisite intent, regardless of the
number of times, if any, the victim was actually harassed, annoyed
or alarmed.
2. The trial court improperly failed to provide the jury with a limiting instruc-
tion concerning its consideration of the verbal content of the defendant’s
telephone call, and, because the error was not harmless beyond a reason-
able doubt, a new trial was warranted: the state’s evidence of the defend-
ant’s intent and conduct, although sufficient, was not overwhelming and
focused on the defendant’s language, and the jury, which reasonably
could have found that the mere placing of the call met the definition
of harassment under § 53a-183 (a) (3), also could have relied on the
defendant’s speech as the basis for her conviction, especially given the
state’s closing argument, which focused on the verbal content of the
defendant’s call rather that the act of calling itself; moreover, because the
jury did not receive an instruction on the law governing the defendant’s
speech as it pertained to the elements of harassment in the second
degree, which the defendant requested and was entitled to, the jury
could have been misled into finding the defendant guilty on the basis
of her speech.
Argued May 24—officially released September 19, 2017
Procedural History
Substitute information charging the defendant with
the crimes of threatening in the second degree and
harassment in the second degree, brought to the Supe-
rior Court in the judicial district of Fairfield, geographi-
cal area number two, and tried to the jury before
Kavanewsky, J.; verdict and judgment of guilty of
harassment in the second degree, from which the
defendant appealed to this court. Reversed; new trial.
Maria L. Vogel-Short, certified legal intern, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Nicholas J. Bove, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Doraine Reed,
appeals from the judgment of conviction, rendered after
a jury trial, of harassment in the second degree in viola-
tion of General Statutes § 53a-183 (a) (3).1 On appeal,
the defendant claims that (1) the evidence was insuffi-
cient to support her conviction and (2) the court
improperly instructed the jury. We disagree with the
defendant that the evidence was insufficient to support
her conviction. We agree, however, that the court
improperly instructed the jury and that this error was
not harmless beyond a reasonable doubt. Accordingly,
we reverse the judgment of the trial court and remand
the case for a new trial.
The jury reasonably could have found the following
facts. The defendant was engaged in a billing dispute
with the law firm that had been representing her, Rosen-
berg and Press (firm), and was dissatisfied with the way
she had been treated. On March 6, 2013, the defendant
called the firm. During the call, she complained that
on the previous day, the firm’s office manager, Osnat
Rosenberg, had been rude to her and the firm had ‘‘disre-
spected’’ her. She then said that Adam Lanza2 had also
been disrespected, and unless the firm learned how to
treat its clients, someone—even she, herself—might do
something similar to the firm.
This frightened Brittany Mancini, the legal secretary
who answered the call, and she immediately notified
Osnat Rosenberg. Together, they decided to call the
police, who arrived at the firm between thirty and forty
minutes later to take statements. Mancini appeared ner-
vous and scared as she was recounting the telephone
conversation to the responding officer.
The defendant subsequently was arrested and
charged with threatening in the second degree in viola-
tion of General Statutes § 53a-62 (a) (1) and harassment
in the second degree in violation of § 53a-183 (a) (3).
After a trial on August 6, 2014, the jury returned a verdict
of not guilty with respect to the threatening charge
and a verdict of guilty with respect to the harassment
charge. On September 5, 2014, the court sentenced the
defendant to sixty days of incarceration. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the evidence pre-
sented at trial was insufficient to support her conviction
of harassment in the second degree.3 Specifically, she
argues that the state failed to adduce sufficient evidence
to prove that (1) she intended to harass, annoy, or alarm
someone at the firm, and (2) a single telephone call
made to a commercial establishment during business
hours was likely to cause annoyance or alarm within
the meaning of § 53a-183 (a) (3). These arguments
phone call could not form the substantive basis for her
conviction because State v. Moulton, 310 Conn. 337, 78
A.3d 55 (2013), which broadened the scope of § 53a-
183 (a) (3) to proscribe constitutionally unprotected
harassing speech, does not govern the present case.4
Although we agree with the defendant that Moulton
is inapplicable, we disagree that the state presented
insufficient evidence to support her conviction.
A
We first address the applicability of Moulton to the
present case. The defendant argues that she had no fair
warning that Moulton would expand the scope of § 53a-
183 (a) (3) to proscribe harassing speech and, thus, she
could not be convicted on the basis of the verbal content
of her telephone call, even if such content was not
protected under the state and federal constitutions. In
response, the state first contends that it presented suffi-
cient evidence to prove harassment in the second
degree regardless of whether Moulton applies. Alterna-
tively, the state contends that the certified question that
was to be decided by our Supreme Court in Moulton
should have forewarned the defendant of the impending
change in the law and, therefore, her speech, which the
state argues comprised a constitutionally unprotected
true threat, could form the basis for a harassment con-
viction. We agree with the defendant that Moulton can-
not control and that the verbal content of her telephone
call cannot form the substantive basis for her harass-
ment conviction.5
We begin by summarizing the relevant facts and pro-
cedural history of Moulton. The defendant in that case
was a postal worker who was on leave from her job.
Id., 343. She called the United States post office branch
at which she worked and asked to speak to the postmas-
ter, but spoke instead to the branch’s supervisor of
customer service, to whom she expressed frustration
over various employment matters. Id., 343–44. She refer-
enced a then-recent workplace shooting at a post office
in California, in which a postal worker killed several
people. Id., 343. The supervisor alerted the postmaster,
postal inspectors, and the police. Id., 344. The Moulton
defendant was arrested and eventually convicted of,
inter alia, harassment in the second degree. Id. She
appealed her conviction to this court. Id. Relying on a
line of precedent limiting § 53a-183 (a) (3) to actions
and not speech, we reversed her conviction and ordered
that a judgment of acquittal be rendered. Id., 344–45.
Our Supreme Court granted certification to appeal.
Id., 341.
After examining the relevant jurisprudence and
applying tools of statutory interpretation and construc-
tion, our Supreme Court concluded that the scope of
§ 53a-183 (a) (3) was not so narrow. See id., 362–63. The
Supreme Court ruled that the legislature had intended
to allow a jury to consider harassing and alarming
speech as well as conduct, except that ‘‘the court must
instruct the jury on the difference between protected
and unprotected speech whenever the state relies on
the content of a communication as substantive evidence
of a violation of § 53a-183 (a).’’ Id., 363. At the same
time, however, our Supreme Court concluded that this
was an unforeseeable expansion of the purview of
§ 53a-183 (a) (3), and, therefore, that the defendant’s
harassment conviction could not stand.6 Id., 363–67.
In addressing the foreseeability of the change it
announced, Moulton provides the appropriate standard
for its applicability to the present case. ‘‘We have recog-
nized that the judicial construction of a statute can
operate like an ex post facto law and thus violate a
criminal defendant’s right to fair warning as to what
conduct is prohibited. . . . [A] judicial construction of
a statute is an authoritative statement of what the stat-
ute meant before as well as after the decision of the
case giving rise to that construction. . . . [Thus], when
[a] court construes a statute, it is explaining its under-
standing of what the statute has meant continuously
since the date when it became law. . . . In determining
whether a judicial construction of a statute effectively
operates as a prohibited ex post facto law, [t]he ques-
tion . . . is whether [the] decision was so unforesee-
able that [the defendant] had no fair warning that it
might come out the way it did. . . . Put differently,
[t]he key test in determining whether the due process
clause precludes the retrospective application of a judi-
cial decision . . . is whether the decision was suffi-
ciently foreseeable . . . that the defendant had fair
warning that the interpretation given the relevant stat-
ute by the court would be applied in his case.’’ (Citations
omitted; internal quotation marks omitted.) Id., 365–66.
In the present case, as in Moulton, the defendant
lacked fair warning that she could be prosecuted for
harassment under § 53a-183 (a) (3) on the basis of the
verbal content of her telephone call. Until the release
of Moulton several months after the defendant placed
her telephone call, our case law had been decisive in
limiting the scope of the statute to conduct and not
speech.7 The defendant was entitled to rely on that
construction of the statute; thus, the content of her
speech cannot be the substantive basis for a conviction
of harassment in the second degree. See id., 363–66;
see also State v. Book, 155 Conn. App. 560, 569 n.7, 109
A.3d 1027 (noting that defendant was not ‘‘properly
placed on notice of the change in the law’’ where his
trial occurred before Moulton), cert. denied, 318 Conn.
901, 122 A.3d 632 (2015), cert. denied, U.S. , 136
S. Ct. 2029, 195 L. Ed. 2d 219 (2016).
The state, however, claims that the pendency of Moul-
ton before our Supreme Court—and that court’s ulti-
mate use of ordinary tools of statutory construction—
forewarned the defendant that § 53a-183 (a) (3) could
have been reinterpreted to reach the verbal content of
a telephone call when such content was a true threat.8
The state’s argument is unavailing because Moulton
itself answers this question: Our harassment jurispru-
dence had been unequivocal about the scope of the
statutory proscription from its inception up through
Moulton, never acknowledging or admitting ambiguity
in the statute’s inapplicability to speech. State v. Moul-
ton, supra, 310 Conn. 366–67 and 367 n.25. We therefore
do not agree that the defendant reasonably could have
foreseen an outcome our Supreme Court ruled unfore-
seeable. See id., 367 n.25.
Because we determine that Moulton was an unfore-
seeable expansion of the scope of § 53a-183 (a) (3), the
verbal content of the defendant’s telephone call cannot
be a substantive basis for her harassment conviction.
With that in mind, we turn now to the defendant’s argu-
ments concerning her insufficiency of the evidence
claim.
B
We begin our analysis by setting forth our well estab-
lished standard of review. ‘‘A defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden.’’ (Internal quotation marks omitted.) State v.
Rodriguez, 146 Conn. App. 99, 110, 75 A.3d 798, cert.
denied, 310 Conn. 948, 80 A.3d 906 (2013). ‘‘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 reasonably 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 defend-
ant 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 com-
bination 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.
Bush, 325 Conn. 272, 285–86, 157 A.3d 586 (2017).
To obtain a conviction of harassment in the second
degree, the state must prove beyond a reasonable doubt
that the accused, ‘‘with intent to harass, annoy or alarm
another person . . . makes a telephone call, whether
or not a conversation ensues, in a manner likely to
cause annoyance or alarm.’’ General Statutes § 53a-183
(a) (3). In this case, there is no dispute that the defend-
ant placed a telephone call to the firm on March 6, 2013.
The defendant contends, however, that she (1) lacked
the specific intent to harass, annoy, or alarm, and (2)
did not call the firm in a manner likely to cause annoy-
ance or alarm.
The state presented the following evidence during
the trial. The firm previously had represented the
defendant in another matter. At some point, the firm
sent a letter to the defendant, informing her of a pur-
ported billing discrepancy related to that matter. In
response, on March 5, 2013, the day before the incident
at issue, the defendant called the firm to resolve the
discrepancy, which she believed was an accounting
error. She spoke to the firm’s office manager, Osnat
Rosenberg, who was married to the firm’s managing
attorney, Max Rosenberg.
On March 6, 2013, the defendant called the firm again.
Mancini answered, at which point the defendant identi-
fied herself. Mancini was familiar with the defendant’s
voice because the defendant often called and visited
the firm’s office. The defendant asked to speak directly
to Max Rosenberg. Mancini informed the defendant that
Max Rosenberg was busy conducting interviews and
would be unable to return telephone calls until the next
day. The defendant retorted that she hoped he was
interviewing candidates to replace his wife. The defend-
ant said she did not like Osnat Rosenberg and wanted
her fired. She claimed that Osnat Rosenberg and the
firm had mistreated and ‘‘disrespected’’ her. She said
that ‘‘Adam Lanza, the shooter of the Sandy Hook shoot-
ing, was disrespected’’ and that ‘‘he shot the kids in
that school because he was disrespected.’’ The defend-
ant went on to say that if the firm did not learn how
to respect its clients, somebody, even the defendant,
herself, could come in and ‘‘show [the firm] a lesson
like Adam Lanza did . . . .’’
1
The defendant first argues that the state failed to
adduce sufficient evidence to prove that she intended
to harass, annoy, or alarm someone at the firm. Specifi-
cally, she contends that the state’s evidence showed
only that ‘‘her intent was to complain about her bill
and about the behavior of the staff, she was calling to
discuss a legitimate business issue, and her conduct
was not harassment, but commercial communication.
. . . There was no intent to do anything other than talk
to her attorney.’’ (Citations omitted.) This, she argues,
did not constitute the specific intent required by the
statute. Construing the evidence in the light most favor-
able to sustaining the conviction, we are not persuaded.
Harassment in the second degree is a specific intent
crime. State v. Kantorowski, 144 Conn. App. 477, 488,
72 A.3d 1228, cert. denied, 310 Conn. 924, 77 A.3d 141(2013). ‘‘There is no conceptual distinction among acts
intended ‘to harass,’ ‘to annoy,’ and ‘to alarm’ . . . .’’
State v. Marsala, 43 Conn. App. 527, 540, 684 A.2d 1199(1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).
Our Supreme Court has summarized the nearly identical
intent language of our disorderly conduct statute9 to
mean that ‘‘the predominant intent is to cause what a
reasonable person operating under contemporary com-
munity standards would consider a disturbance to or
impediment of a lawful activity, a deep feeling of vexa-
tion or provocation, or a feeling of anxiety prompted
by threatened danger or harm. In order to sustain a
conviction for disorderly conduct, the state must begin
by demonstrating that the defendant had such a state
of mind.’’ State v. Indrisano, 228 Conn. 795, 810–11,
640 A.2d 986 (1994).
‘‘A person acts intentionally with respect to a result
. . . when his conscious objective is to cause such
result . . . . General Statutes § 53a-3 (11) . . . .
[T]he question of intent is purely a question of fact.
. . . [T]he state of mind of one accused of a crime is
often the most significant and, at the same time, the
most elusive element of the crime charged. . . .
Because it is practically impossible to know what some-
one is thinking or intending at any given moment, absent
an outright declaration of intent, a person’s state of
mind is usually [proven] by circumstantial evidence
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Buhl, 321 Conn. 688, 715, 138 A.3d
868 (2016). In the case of harassment, ‘‘we must infer
[intent] from the reaction of the victim and the circum-
stances of each call.’’ State v. Marsala, supra, 43 Conn.
App. 537.
Even before Moulton, ‘‘[e]vidence of the language
used in an alleged violation of the harassment statute
[was] relevant to show the intent of the accused in
making the telephone call as well as the likelihood of
its causing annoyance or alarm.’’ State v. Lewtan, 5
Conn. App. 79, 83, 497 A.2d 60 (1985); accord State v.
Buhl, supra, 321 Conn. 719–20 (applying State v. Lew-
tan, supra, 83, in consideration of violation of § 53a-
183 [a] [2]); State v. Murphy, 254 Conn. 561, 569, 757
A.2d 1125 (2000) (‘‘fact finder may consider the lan-
guage used in the communication in determining
whether the state has proven the elements of the
offense, namely, that the defendant intended to harass,
annoy or alarm, and that he did so in a manner likely
to cause annoyance or alarm’’), overruled in part on
other grounds by State v. Moulton, 310 Conn. 337, 362,
78 A.3d 55 (2013).
In the present case, the jury reasonably could have
found that the circumstances of the defendant’s tele-
phone call evinced a predominant conscious objective
to harass, annoy, or alarm. Prior to the call at issue, the
defendant was notorious among the firm’s employees
because of her constant calls and visits. Those other
calls, though frequent, apparently were made in a good
faith effort to resolve a billing dispute and passed with-
out incident.
The March 6, 2013 call, however, was patently differ-
ent. This time, the defendant sought out Max Rosenberg
directly. When the defendant was informed of his
unavailability, she made disparaging remarks about
Osnat Rosenberg and the firm, and then evoked the
Sandy Hook shootings.10 The jury reasonably could have
concluded that, angry and frustrated though the defend-
ant may have been, this was not a sudden outburst,
but rather an implementation of a premeditated retort
intended to frighten the employees at the firm into
cooperation concerning her bill. As a result, the jurors
reasonably could have found, on the basis of the evi-
dence presented at trial, the reasonable inferences
drawn therefrom, and their own common sense and
life experiences, that the defendant’s intent when plac-
ing the March 6, 2013 telephone call was not simply
to resolve a billing discrepancy but, rather, to harass,
annoy, or alarm the members of the firm so that they
would finally take her and her billing complaint more
seriously.
We recognize that a jury reasonably could conclude
from the evidence presented at trial that when the
defendant placed her call, she intended only to resolve
the billing discrepancy, not to harass, annoy, or alarm
the members of the firm. When reviewing a sufficiency
claim, however, ‘‘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 evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Silva, 285 Conn. 447, 454, 939
A.2d 581 (2008). Mindful as we are that in determining
the sufficiency of the evidence, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict and consider its cumulative effect, we determine
that there was sufficient evidence adduced at trial to
support the defendant’s conviction of harassment in
the second degree.
2
The defendant next argues that the state failed to
adduce sufficient evidence to prove that a single tele-
phone call made to a commercial establishment during
business hours was likely to cause annoyance or alarm
within the meaning of § 53a-183 (a) (3). Specifically,
the defendant contends that the state’s evidence demon-
strated only that she placed ‘‘a single telephone call
during business hours to the office of an attorney
retained by the defendant,’’ and that this ‘‘could not
constitute harassment in the second degree . . . .’’ We
are not persuaded.
Again, a person is guilty of harassment in the second
degree when, with the requisite intent, that person
‘‘makes a telephone call, whether or not a conversation
ensues, in a manner likely to cause annoyance or
alarm.’’ General Statutes § 53a-183 (a) (3). Annoyance
is defined as ‘‘vexation; a deep effect of provoking or
disturbing . . . .’’ State v. Indrisano, supra, 228 Conn.
810. ‘‘ ‘Alarm’ is defined as . . . ‘fear: fill[ed] with anxi-
ety as to threatening danger or harm . . . .’ Webster’s
Third New International Dictionary [1993].’’ State v.
Cummings, 46 Conn. App. 661, 673, 701 A.2d 663, cert.
denied, 243 Conn. 940, 702 A.2d 645 (1997). ‘‘[T]he legis-
lature intended . . . ‘annoyance or alarm,’ to be that
perceived to be as such by a reasonable person
operating under contemporary community standards.’’
State v. LaFontaine, 128 Conn. App. 546, 554, 16 A.3d
1281 (2011).
Typically, telephone harassment involves multiple
telephone calls or calls placed at inconvenient locations
or hours. See, e.g., State v. Therrien, 117 Conn. App.
256, 259–60, 978 A.2d 556 (defendant placed threatening
calls to complainant’s personal cellular telephone dur-
ing work hours), cert. denied, 294 Conn. 913, 983 A.2d
275 (2009); State v. Lemay, 105 Conn. App. 486, 488–89,
938 A.2d 611 (defendant repeatedly, anonymously
called complainant and made banging noises), cert.
denied, 286 Conn. 915, 945 A.2d 978 (2008); State v.
Bell, 55 Conn. App. 475, 477, 739 A.2d 714 (defendant
placed forty-five phone calls), cert. denied, 252 Conn.
908, 743 A.2d 619 (1999), overruled in part on other
grounds by State v. Moulton, 310 Conn. 337, 362, 78
A.3d 55 (2013); State v. Marsala, supra, 43 Conn. App.
529 (defendant called complainant twenty-five times in
early morning hours); State v. Marsala, 1 Conn. App.
647, 648–49, 474 A.2d 488 (1984) (defendant made
threatening calls to complainant at her home, at night,
and broke her window); Gormley v. Director, Connecti-
cut State Dept. of Probation, 632 F.2d 938, 940–41 (2d
Cir.) (defendant called complainant’s workplace to
harass her), cert. denied, 449 U.S. 1023, 101 S. Ct. 591,
66 L. Ed. 2d 485 (1980).
Those examples notwithstanding, the plain language
of the statute specifies that even one telephone call
made in a manner likely to cause annoyance or alarm
is enough to constitute the actus reus of harassment.
‘‘[T]he phrase ‘a telephone call,’ coupled with the
phrase, ‘likely to cause annoyance,’ shows that the legis-
lature intended to punish each telephone call made with
the requisite intent to harass, annoy or alarm regardless
of the number of times, if any, the victim was actually
harassed, annoyed or alarmed. . . . [T]he phrase
‘likely to cause annoyance or alarm’ shows that the
effect on the listener is not relevant. Instead, the statute
is concerned with the conduct of the individual making
the telephone call. Additionally, the phrase ‘a telephone
call’ shows the legislature’s intent to punish for a single
telephone call. Therefore, an individual violates § 53a-
183 (a) (3) each time the individual makes a telephone
call with the intent to harass, alarm and annoy the
victim in a manner likely to cause annoyance or alarm
regardless of the number of times the victim actually
became alarmed or annoyed, if any, and regardless of
how close in time the calls were made or whether the
victim was actually harassed, annoyed or alarmed.’’
State v. Marsala, 93 Conn. App. 582, 589, 889 A.2d 943(analyzing statute in context of defendant’s double jeop-
ardy claim), cert. denied, 278 Conn. 902, 896 A.2d 105(2006).
Nevertheless, a jury may hear the effect on the lis-
tener to the extent that it evinces the likelihood that
the call caused annoyance or alarm. See State v. Lew-
tan, supra, 5 Conn. App. 83–84 (‘‘Evidence of the lan-
guage used in an alleged violation of the harassment
statute is relevant to show the intent of the accused in
making the telephone call as well as the likelihood of
its causing annoyance or alarm. . . . The witness was
testifying as to his observation of the child relative
to telephone calls made to the family home by the
defendant. These observations were relevant to show
that the calls were, in the words of the statute, likely to
cause annoyance or alarm.’’ [Citations omitted; internal
quotation marks omitted.]); accord State v. Murphy,
supra, 254 Conn. 569 (‘‘fact finder may consider the
language used in the communication in determining
. . . that the defendant intended to harass, annoy or
alarm, and that he did so in a manner likely to cause
annoyance or alarm’’); see also State v. Adgers, 101
Conn. App. 123, 127, 921 A.2d 122 (‘‘a jury considering
the response of ‘a person of common intelligence’ may
receive evidence of the particular circumstances sur-
rounding a particular communication’’), cert. denied,
283 Conn. 903, 927 A.2d 915 (2007).
In the present case, the defendant’s telephone call
was the latest in a series of frequent calls and visits.
The defendant called again and referenced the Sandy
Hook shootings and their perpetrator, implying that she
or someone like her could ‘‘show [the firm] a lesson
. . . .’’ She caused Mancini to be ‘‘nervous’’ and ‘‘in fear
for [her] physical well-being.’’ Construing this evidence
in the light most favorable to sustaining the conviction,
we conclude that the jury reasonably could have found
that the defendant placed a telephone call in a manner
likely to cause annoyance or alarm.
We therefore determine that upon the facts construed
in favor of sustaining the conviction, and upon the infer-
ences reasonably drawn therefrom, the jury reasonably
could have concluded that the cumulative force of the
evidence established that the defendant was guilty
beyond a reasonable doubt of harassment in the sec-
ond degree.
II
The defendant next claims that the court improperly
instructed the jury, and that this error was not harmless.
Specifically, she contends that the court erred in failing
to provide her requested instruction limiting the jury’s
consideration of the verbal content of her telephone
call.11 The state concedes that the court erred, but
argues that the error was harmless beyond a reasonable
doubt.12 We agree with the defendant that the trial court
erred in failing to provide a limiting instruction and that
such error was not harmless beyond a reasonable
doubt.
‘‘We begin with the well established standard of
review governing the defendant’s challenge[s] to the
trial court’s jury instruction. Our review of the defend-
ant’s claim requires that we examine the [trial] court’s
entire charge to determine whether it is reasonably
possible that the jury could have been misled by the
omission of the requested instruction. . . . While a
request to charge that is relevant to the issues in a case
and that accurately states the applicable law must be
honored, a [trial] court need not tailor its charge to the
precise letter of such a request. . . . If a requested
charge is in substance given, the [trial] court’s failure
to give a charge in exact conformance with the words
of the request will not constitute a ground for reversal.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper. . . . Additionally, we have noted that [a]n
[impropriety] in instructions in a criminal case is revers-
ible . . . when it is shown that it is reasonably possible
for [improprieties] of constitutional dimension or rea-
sonably probable for nonconstitutional [improprieties]
that the jury [was] misled.’’ (Internal quotation marks
omitted.) State v. Baltas, 311 Conn. 786, 808–809, 91
A.3d 384 (2014).
The court charged the jury with respect to harass-
ment in the second degree as follows: ‘‘So, the defendant
is charged in count two with harassment in the second
degree. The statute defining this offense reads in perti-
nent part as follows:
‘‘A person is guilty of harassment in the second degree
when, with intent to harass, annoy, or alarm another
person, she makes a telephone call, whether or not
conversation ensues, in a manner likely to cause annoy-
ance or alarm. For you to find the defendant guilty of
this charge, the state must prove the following elements
beyond a reasonable doubt.
‘‘The first element is that the defendant intended to
harass, annoy, or alarm another person. Again, a person
acts intentionally with respect to a result when her
conscious objective is to cause such a result. You will
recall my earlier instructions concerning how you may
go about determining what a person’s intention was,13
and you should apply those instructions here.
‘‘Harass means to trouble, worry, or torment. Annoy
means to [irritate], vex, or bother, as by a repeated
action. Alarm means to make suddenly afraid, anxious,
or violent.
‘‘The second element is that the defendant made a
telephone call in the manner that was likely to cause
annoyance or alarm. It does not matter whether the
defendant had a conversation with another person; it
only matters that she made the telephone call in the
manner that was likely to cause annoyance or alarm.
‘‘In summary, the state must prove beyond a reason-
able doubt that the defendant intended to harass, annoy,
or alarm another person and she made a telephone call
to another person in a manner that was likely to cause
annoyance or alarm.’’ (Footnote omitted.)
The defendant contends that the court erred in failing
to provide her requested instruction limiting the jury’s
consideration of the verbal content of her telephone
call. On the day before trial, the defendant submitted
a request to charge, which contained the following lan-
guage: ‘‘You are to examine only whether the act of the
calling and causing the ringing of the telephone was
harassing, and to look to the speech only for the intent
in physically making the telephone call. LEGAL
AUTHORITY: Connecticut Selected Jury Instructions
Criminal, § 6.7-7; State v. Moulton, 120 Conn. [App. 330,
339, 991 A.2d 728] (2010) [aff’d in part, 310 Conn. 337,
78 A.3d 55 (2013)]; see also State v. LaFontaine, 128
Conn. App. 546, 555–58 [16 A.3d 1281] (2011).’’14 The
state concedes, and we agree, that the court should have
included the requested language.15 We turn therefore to
our harmlessness analysis.
We conclude that this error was not harmless beyond
a reasonable doubt. The state’s evidence of the defend-
ant’s intent and conduct, though sufficient, was not
overwhelming and focused in not insignificant part
upon the defendant’s actual language. Although the jury
reasonably could have found that the mere placing of
the call met the definition of harassment under § 53a-
183 (a) (3), it also could have relied upon her speech
as the basis for its verdict of guilty. This is all the more
likely in light of the state’s closing argument, which
focused primarily on the verbal content of the defend-
ant’s call rather than on the act of calling itself: ‘‘Basi-
cally, this is a case about a phrase,’’ and, ‘‘we’re here
because of nine words . . . .’’16 Properly instructed, it
is reasonably possible that a jury would have found
that the defendant did not commit harassment by calling
the law firm.
The defendant requested and was entitled to a proper
instruction on the law governing her speech as it per-
tained to the elements of harassment in the second
degree. The jury did not receive such an instruction,
and therefore could have been misled into finding the
defendant guilty on the basis of her speech. Accord-
ingly, we cannot conclude that the court’s failure to
instruct the jury in such a manner was harmless error.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
General Statutes § 53a-183 (a) provides in relevant part: ‘‘A person is
guilty of harassment in the second degree when . . . (3) with intent to
harass, annoy or alarm another person, he makes a telephone call, whether or
not a conversation ensues, in a manner likely to cause annoyance or alarm.’’
2
The parties stipulated to the historical fact that, on December 14, 2012,
Adam Lanza fatally shot twenty children and six adults at Sandy Hook
Elementary School in Newtown.
3
We consider these claims first because, if successful, the defendant
would be entitled to a judgment of acquittal. ‘‘[A] reviewing court must
address a defendant’s insufficiency of the evidence claim, if the claim is
properly briefed and the record is adequate for the court’s review, because
resolution of the claim may be dispositive of the case and a retrial may be
a ‘wasted endeavor.’ ’’ State v. Padua, 273 Conn. 138, 179, 869 A.2d 192(2005). In the present case, the claim is properly briefed and the record is
adequate for review.
4
Moulton was argued in our Supreme Court on September 18, 2012, and
officially released on October 29, 2013. See State v. Moulton, supra, 310
Conn. 339. The conduct at issue in the present case occurred on March
6, 2013.
5
Accordingly, we need not reach the implicit question of whether the
verbal content of the defendant’s telephone call comprised a constitutionally
unprotected true threat. If Moulton had applied, the verbal content of the
defendant’s telephone call could be the substantive basis for her conviction
only to the extent that it is not constitutionally protected.
6
As a result, our Supreme Court affirmed this court’s reversal of the trial
court’s judgment, in which this court ordered a new trial on the charge of
breach of the peace in the second degree. Our Supreme Court then held
that the form of this court’s judgment was improper insofar as we had
directed the trial court to render judgment of not guilty on the charge of
harassment in the second degree, and remanded the case to this court with
direction to remand the case to the trial court with direction to render
judgment dismissing the charge of harassment in the second degree. State
v. Moulton, supra, 310 Conn. 370.
7
See State v. LaFontaine, 128 Conn. App. 546, 558, 16 A.3d 1281 (2011)
(concluding there was insufficient evidence to support conviction of harass-
ment in second degree where state conceded its evidence ‘‘ ‘rested entirely’ ’’
on content of speech); State v. Bell, 55 Conn. App. 475, 481, 739 A.2d 714(rejecting contention that statute had chilling effect on speech because
§ 53a-183 [a] [3] ‘‘merely prohibits purposeful harassment by use of the
telephone and does not involve first amendment concerns’’), cert. denied,
252 Conn. 908, 743 A.2d 619 (1999), overruled in part by State v. Moulton,
310 Conn. 337, 362, 78 A.3d 55 (2013); see also State v. Anonymous (1978-
4), 34 Conn. Supp. 689, 695–96, 389 A.2d 1270 (declining to provide judicial
gloss of ‘‘fighting words’’ on ground that § 53a-183 [a] [3] does not implicate
speech), cert. denied sub nom. State v. Gormley, 174 Conn. 803, 382 A.2d
1332 (1978), overruled in part by State v. Moulton, 310 Conn. 337, 351–63,
78 A.3d 55 (2013); Gormley v. Director, Connecticut State Dept. of Probation,
632 F.2d 938, 941–42 (2d Cir.) (‘‘Clearly the Connecticut statute regulates
conduct, not mere speech. What is proscribed is the making of a telephone
call, with the requisite intent and in the specified manner.’’ [Emphasis omit-
ted.]), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980));
accord State v. Murphy, 254 Conn. 561, 568–69, 757 A.2d 1125 (2000) (con-
struing § 53a-183 [a] [2], which uses nearly identical terms, not to regulate
letters’ content but rather harassing mailing thereof), overruled in part on
other grounds by State v. Moulton, 310 Conn. 337, 362, 78 A.3d 55 (2013).
8
See State v. Courchesne, 296 Conn. 622, 726, 998 A.2d 1 (2010) (‘‘because
this court routinely relies on settled principles of statutory interpretation
to ascertain the meaning of an ambiguous statute, our reasoned application
of those ordinary tools of construction no doubt will result in an interpreta-
tion of the statute at issue that is both foreseeable and defensible for pur-
poses of due process’’); State v. Miranda, 260 Conn. 93, 109–10, 794 A.2d
506 (‘‘[T]ools of statutory construction demonstrated that by reference to
the law as it then existed, it was neither unexpected nor indefensible to
impose a common-law duty on the defendant to protect the victim under
the facts of this case and to impose criminal liability for his failure to so
act. We therefore agree with the state that this court’s recognition of a
common-law duty and the application of [General Statutes] § 53a-59 [a] [3]
were reasonably foreseeable and did not deprive the defendant of due
process in accordance with the standard articulated in Bouie [v. Columbia,
378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964)].’’), cert. denied, 537
U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).
9
‘‘A person is guilty of disorderly conduct when, with intent to cause
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
such person . . . (2) by offensive or disorderly conduct, annoys or inter-
feres with another person . . . .’’ (Emphasis added.) General Statutes § 53a-
182 (a).
10
At trial, the parties entered into a stipulation that the Sandy Hook
shooting occurred on December 14, 2012. Mancini also testified that ‘‘it was
only months after the shooting, the massacre, if you will, so it was very
prominent in everybody’s minds . . . .’’
11
The defendant also claims that the court erred in failing to provide a
necessary judicial gloss of the terms of § 53a-183 (a) (3). Because we con-
clude that the trial court erred in failing to give a limiting instruction and
that this error was not harmless, we need not reach this final claim.
12
In its brief, the state acknowledges that if pre-Moulton law applies, then
the trial court erred in failing to grant the defendant’s request to charge.
The state also concedes that there would have been error even if Moulton
had applied because the court failed to instruct the jury as to the difference
between protected speech and unprotected true threats in the context of
the harassment charge. In part I A of this opinion, we determined that
Moulton announced an unforeseeable change in our law and therefore can-
not apply in the present case. Accordingly, we need not reach the question
of whether the court should have charged the jury as to constitutional free
speech protections in the context of the harassment charge.
13
The court had instructed the jury previously that ‘‘[a] person acts ‘inten-
tionally’ with respect to a result when her conscious objective is to cause
such result. . . .
‘‘[W]hat a person’s intention was is usually a matter to be determined by
inference. No person is able to testify that they looked into another’s mind
and saw therein a certain knowledge or certain purpose or intention to do
harm to another. Because direct evidence of the defendant’s state of mind
is rarely available, intent is generally proved by circumstantial evidence.
The only way a jury can ordinarily determine what a person’s intention was
at any given time is by determining what the person’s conduct was, and
what the circumstances were surrounding that conduct, and from that, infer
what her intention was.
‘‘To draw such an inference is the proper function of a jury, provided, of
course, that the inference drawn complies with the standards for inferences
as explained in connection with my instruction on circumstantial evidence.
The inference is not a necessary one. You are not required to infer a particular
intent from the defendant’s conduct or statements, but it’s an inference that
you may draw if you find it is reasonable and logical. I again remind you
that the burden of proving intent beyond a reasonable doubt is on the state.’’
14
The defendants in both Moulton and LaFontaine challenged the applica-
tion of § 53a-183 (a) (3) to their conduct as unconstitutional. See State v.
LaFontaine, supra, 128 Conn. App. 555; State v. Moulton, supra, 120 Conn.
App. 334–35. These specific, as-applied, constitutional challenges are less
expansive in scope than the evidentiary challenge in Lewtan, in which the
defendant claimed that speech was not relevant. Compare State v. Moulton,
supra, 120 Conn. App. 339 (‘‘[t]he jury should have been instructed to
examine only whether the act of calling and causing the ringing of the
telephone was harassing, and to look to the speech only for the intent
in physically making the telephone call’’ [emphasis added]), and State v.
LaFontaine, supra, 128 Conn. App. 555–58 (same), with State v. Lewtan,
supra, 5 Conn. App. 83 (‘‘[e]vidence of the language used in an alleged
violation of the harassment statute is relevant to show the intent of the
accused in making the telephone call as well as the likelihood of its causing
annoyance or alarm’’ [emphasis added]). Elsewhere, both Moulton and
LaFontaine acknowledge the broader general relevance of speech evidence
in harassment cases. See State v. LaFontaine, supra, 128 Conn. App. 555;
State v. Moulton, supra, 120 Conn. App. 352.
The defendant’s claim in the present case is one of constitutional error
in failing to provide the requested limiting instruction with respect to the
jury’s consideration of the element of specific intent. This is more analogous
to the claims in Moulton and LaFontaine than the evidentiary claim in
Lewtan. We are satisfied, therefore, that the defendant’s request to charge
complied with Practice Book § 42-18 and accurately stated the law.
15
On the day of trial, the state also submitted a request to charge. Its
request does not contain the language the defendant requested.
16
We note that, at trial, the state was attempting to prove not only harass-
ment in the second degree, but also threatening in the second degree. As
a result, its case necessarily incorporated the defendant’s speech even
though it did not depend entirely thereon. See State v. Moulton, supra, 310
Conn. 341 (‘‘the state conceded that its case was predicated entirely on the
defendant’s speech’’); State v. LaFontaine, supra, 128 Conn. App. 552 (‘‘the
state concedes that its evidence of the harassing manner of the defendant’s
phone call ‘rested entirely’ on the content of the speech’’). With respect to
the threatening charge, the court properly instructed the jury that only
physical threats and true threats are punishable ipso facto.