State v. Book

• Decision Date: 03 March 2015
• Docket Number: No. 35947.,35947.
• Citation: 155 Conn.App. 560,109 A.3d 1027
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ethan BOOK.

155 Conn.App. 560

109 A.3d 1027

STATE of Connecticut

v.Ethan BOOK.

No. 35947.

Appellate Court of Connecticut.

Argued Oct. 23, 2014.

Decided March 3, 2015.

Ethan Book, self-represented, the appellant (defendant).

Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Mitchell Rubin, senior assistant state's attorney, for the appellee (state).

GRUENDEL, LAVINE and KELLER, Js.

Opinion

GRUENDEL, J.

The self-represented defendant, Ethan Book, appeals from the judgment of conviction, rendered after a jury trial, of harassment in the second degree in violation of General Statutes § 53a–183 (a)(2).563 On appeal, the defendant claims that (1) § 53a–183 (a)(2) is unconstitutional, (2) there was insufficient evidence to support the conviction, (3) the court improperly failed to address pretrial motions, (4) the court improperly excluded evidence, (5) the court improperly denied the defendant's request for standby counsel, (6) the court erred by not bifurcating the trial to deal with the validity of the defendant's prior conviction, (7) the court erred by limiting the defendant's opening statement, (8) the court erred by rejecting the defendant's requests to charge the jury, (9) the court erred when it limited his closing arguments, and (10) the court erred when it instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the late 1990s, the defendant and the complainant, Martha Villamil, met while operating similar businesses in Fairfield County. They later developed a personal relationship. After going on several dates, the complainant explained to the defendant that she did not want to see him anymore. The defendant nevertheless continued to contact the complainant, who ultimately filed a complaint with police. On the basis of that complaint, the defendant was charged with thirty-four counts of harassment in the second degree. In 2001, the defendant was found guilty on twenty-four of the counts and sentenced to five years imprisonment, execution suspended after one year, and one year of probation. As a condition of his probation, the defendant was to have no contact with the complainant.

In March, 2003, while incarcerated at the Bridgeport Correctional Center, the defendant sent a letter to the complainant, which she received and opened. She read a portion of the letter before becoming fearful and afraid. She then filed both a complaint with a victim's advocate, as well as a statement with the Stamford Police Department. As a result, the defendant was charged with two counts of harassment in the second degree in violation of § 53a–183 (a). The court later dismissed one of the counts on the ground that the charge was brought beyond the statute of limitations. In 2012, a trial proceeded on the remaining count, and the jury returned a guilty verdict. The court then sentenced the defendant to ninety days imprisonment, execution suspended after thirty days, followed by one year of probation. This appeal followed.

I

The defendant first claims that his conviction cannot stand because § 53a–183 (a)(2) is unconstitutional on its face.¹ Specifically, he claims that the statute is overbroad because it prohibits certain forms of speech protected under the first amendment to the United States constitution. We disagree.

“The constitutionality of a statute presents a question of law over which our review is plenary.... It is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statute's constitutionality.... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Citation omitted; internal quotation marks omitted.) State v. McKenzie–Adams, 281 Conn. 486, 500, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012).

The defendant's claim that § 53a–183 (a)(2) is unconstitutional is not a novel one. On several prior occasions, our appellate courts have rejected first amendment challenges to the harassment statute. In each case, the court upheld the statute when it was applied to conduct, rather than speech. See State v. Murphy, 254 Conn. 561, 568, 757 A.2d 1125 (2000) ( “§ 53a–183 [a][2] proscribes harassing conduct via mail and does not seek to regulate the content of communications made by mail”); State v. Bell, 55 Conn.App. 475, 480–81, 739 A.2d 714 (“To run afoul of the statute, a telephone call must be made not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm. Whether speech actually occurs is irrelevant, since the statute proscribes conduct....” [Internal quotation marks omitted.] ), cert. denied, 252 Conn. 908, 743 A.2d 619 (1999) ; State v. Anonymous (1978–4), 34 Conn.Supp. 689, 696, 389 A.2d 1270 (1978) (“it is the manner and means employed to communicate ... rather than [the] content [of the messages]”).² Most recently, in State v. Moulton, 310 Conn. 337, 362–63, 78 A.3d 55 (2013), our Supreme Court concluded that § 53a–183 (a) may be constitutionally applied to speech if the content of that speech rises to the level of a true threat, which is unprotected by the first amendment. In the present case, the defendant has articulated no reason to depart from prior case law, and as a result, we are bound by this precedent.³ We therefore must reject the defendant's claim that the statute is unconstitutional.

II

The defendant next claims that the evidence presented at trial was insufficient to support a determination of guilt beyond a reasonable doubt. We disagree.

“The standard of review we apply to a claim of insufficient evidence is well established. 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 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.” (Citation omitted; internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 246, 856 A.2d 917 (2004).

The information charged the defendant with harassment in the second degree in violation of § 53a–183 (a)(2). The statute provides in relevant part: “A person is guilty of harassment in the second degree when ... with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail ... (2) in a manner likely to cause annoyance or alarm....” General Statutes § 53a–183 (a). The state was thus required to prove both that the defendant committed a physical act, i.e., sent a communication in a manner likely to cause annoyance or alarm, and had the applicable mental state, i.e., the specific intent to harass, annoy or alarm. In the present case, the defendant does not dispute that he sent the March, 2003 letter to the complainant.⁴ He does however, contend that the letter was not sent in a manner likely to cause annoyance or alarm and that he lacked the requisite intent to harass when he mailed the letter.

At trial, the state prosecuted the defendant solely on the basis of his action in sending the letter, rather than on the contents of the communication, and the court charged the jury accordingly.⁵ The court also instructed the jury, consistent with our state's law at the time, that the statute did not criminalize the content of the defendant's speech.⁶ Although our Supreme Court in State v. Moulton, supra, 310 Conn. at 337, 78 A.3d 55 construed the statute to encompass unprotected speech such as true threats, the present case was not tried on such a theory, nor was Moulton decided at the time of trial.⁷ As a result, we review only the defendant's conduct in determining whether it was sufficient to support a conviction under the harassment statute.

A

We must first determine whether the defendant sent the letter “in a manner likely to cause annoyance or alarm.” Our courts have concluded that it is the act of the communication and the circumstances surrounding that act, such as the time and the number of communications, that may be considered in determining whether the communication was made in a manner likely to cause annoyance or alarm. State v. Moulton, supra, 310 Conn. at 357–58, 78 A.3d 55.

In reviewing the evidence, we conclude that the timing and surrounding circumstances support the jury's finding that the defendant's letter was likely to cause alarm or annoyance to the complainant. As discussed previously, the defendant mailed the letter to the woman who had been the complainant in his 2001 harassment case, where he had been convicted of twenty-four counts of harassment. He sent the letter in 2003 while serving a prison sentence following the 2001 convictions. Additionally, the defendant addressed the letter...