State v. Binnette, (AC 24107)

• Decision Date: 21 December 2004
• Docket Number: (AC 24107)
• Citation: 86 Conn. App. 491,861 A.2d 1197
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. GEORGE BINNETTE

86 Conn. App. 491

861 A.2d 1197

STATE OF CONNECTICUT v. GEORGE BINNETTE

(AC 24107)

Appellate Court of Connecticut.

Argued October 13, 2004.

Officially released December 21, 2004.

Lavery, C. J., and Flynn and Bishop, Js.

Lisa Samuelson, assistant public defender, with whom was Suzanne Zitser, assistant public defender, for the appellant (defendant).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and David R. Shannon, assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, George Binnette, appeals from the judgment of conviction, rendered after a jury trial, of criminal violation of a protective order under General Statutes § 53a-223. On appeal, the defendant claims that (1) the evidence was insufficient to support a conviction for criminal violation of a protective order, (2) the trial court denied him the right to due process by improperly instructing the jury, (3) the state denied him the rights to due process and a fair trial by engaging in prosecutorial misconduct and (4) the court denied him the right to effective assistance of counsel by failing to conduct an adequate inquiry into counsel's representation. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim were involved in a romantic relationship that became violent. On April 17, 2002, the victim telephoned the police following a violent episode in which she sustained injuries at the hands of the defendant. Aware that a warrant for his arrest had been issued on the basis of the victim's complaint, the defendant turned himself in to the police. On May 20, 2002, the court, White, J., issued, inter alia, a protective order that prevented the defendant from imposing any restraint, and from threatening, harassing, assaulting, molesting or sexually assaulting the victim or entering her home. The order did not mandate that the defendant refrain from contacting the victim, and they did continue to be involved romantically after its issuance.

On May 28, 2002, the defendant and the victim spent the night together at the home of the defendant's sister. The next day, after the defendant and the victim fought, the victim returned to her home, which she shared with another male friend, Richard Metivier and others. At approximately 10 p.m., the defendant came to the victim's home, and Metivier let him in. After attempts to get the victim to accompany him failed, the defendant began throwing things in the house and broke an entertainment center and a television. He then left, but repeatedly telephoned the victim.

A few hours later, at approximately midnight, the defendant returned to the home of the victim. The defendant apparently gained entry through a basement window. While the defendant was attempting to talk with the victim, Metivier retreated to an outside porch to telephone the police. The defendant soon followed and assaulted Metivier. The defendant left the premises after the victim hit him with a baseball bat, but he continued to telephone her home. During one of the telephone calls, the police took the telephone from Metivier, but the defendant immediately hung up. Between 4 p.m. on May 29, 2002, and 4:30 a.m. on May 30, 2002, the defendant telephoned the victim's home fifty-six times.

On the night of May 31 and into June 1, 2002, the defendant telephoned the home of the victim numerous times and either spoke with Metivier or activated the answering machine. During one of these calls, in the early morning of June 1, 2002, the defendant informed Metivier that he was on his way over. The victim telephoned 911. Shortly thereafter, the victim saw the defendant on the street outside of her home and was very scared. Metivier testified that the defendant threw a beer bottle at the door of the victim's house. Metivier and one of his friends got into a fistfight with the defendant several houses away from the victim's home, and the defendant lost two of his front teeth in the fight. After a brief chase, the police apprehended the defendant near the victim's house and charged him with criminal violation of a protective order and interfering with a police officer. The police then took photographs of the crime scene, including photographs of the broken beer bottle on the front steps of the victim's home.

On March 14, 2003, the jury found the defendant guilty of, inter alia, violating a protective order on June 1, 2002.¹ This appeal followed.

I

The defendant first claims that the evidence was insufficient to support a conviction of criminal violation of a protective order on the basis of his conduct on June 1, 2002.² He argues that "[t]he state failed to prove. . . that the defendant intended to engage in conduct that would violate the order, specifically to harass [the victim]" on the specific date of June 1, 2002. The defendant contends that his purpose for going to the victim's street in the early morning of June 1, 2002, was to engage in a confrontation with Metivier and not to see or harass the victim. We conclude that the state presented evidence sufficient for the jury to conclude that the defendant violated the protective order on June 1, 2002, and we reject the defendant's claims concerning the intent necessary to prove a violation of the protective order statute.

"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 [jury] 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 defendant 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 multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable." (Citation omitted; internal quotation marks omitted.) State v. Charles, 78 Conn. App. 125, 139-40, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003).

The court issued a protective order against the defendant in favor of the victim on May 20, 2002, prohibiting the defendant from, among other things, harassing the victim. As we have explained previously, "a violation of a protective order does not incorporate the specific intent to harass. . . . All that is necessary is a general intent that one intend to perform the activities that constitute the violation." (Citations omitted.) Id., 140. The defendant's argument, although acknowledging that criminal violation of a protective order is a general intent crime, invites us to impose a specific intent gloss that the statute does not require. We reject the invitation.

After a tumultuous few days, the defendant, in the early morning of June 1, 2002, repeatedly telephoned the home of the victim and finally stated that he was coming over. Although he contends that his purpose for going to the victim's street was to confront Metivier and not the victim, the victim did see him outside of her home and was frightened. The defendant places much emphasis on the apparently inconsistent testimony of Metivier concerning whether he saw the defendant throw a beer bottle at the victim's home on June 1, 2002.³ The jury, however, was free to accept a part of Metivier's testimony and to reject another part of it. On direct examination, Metivier specifically testified that the defendant threw the bottle. Additionally, the police saw the broken bottle on the front steps of the victim's home and, in fact, photographed it. Furthermore, the jury certainly could have concluded that the defendant's intentional conduct of repeatedly telephoning the victim's home, announcing that he was coming over and then arriving at the victim's street, even with the intention of confronting Metivier, had the effect of harassing the victim.

On the basis of our review of the record, we conclude that there was sufficient evidence before the jury from which it could conclude that the defendant had violated the protective order on June 1, 2002.

II

The defendant next claims that the court denied him the right to due process by improperly instructing the jury and, essentially, directing a verdict.⁴ The defendant focuses on the following language in the court's instruction: "In this case, there is evidence that a protective order allegedly issued against the defendant and in favor of [the victim] and prohibited him from engaging in the conduct just mentioned. There is no evidence that on. . . June 1st, 2002 that the defendant imposed any restraint on the person or liberty of [the...