State v. Fagan

• Decision Date: 26 September 2006
• Docket Number: No. 17562.,17562.
• Citation: 280 Conn. 69,905 A.2d 1101
• Parties: STATE of Connecticut v. Damon FAGAN.
• Court: Connecticut Supreme Court

905 A.2d 1101

280 Conn. 69

STATE of Connecticut v. Damon FAGAN.

No. 17562.

Supreme Court of Connecticut.

Argued January 3, 2006.

Decided September 26, 2006.

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Jane E. Carroll, special public defender, with whom was Mary Trainer, Bridgeport, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Herbert E. Carlson, Jr., supervisory assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.^*

KATZ, J.

The defendant, Damon Fagan, appeals from the judgment of conviction, rendered after a jury trial, of one count of criminal violation of a protective order in violation of General Statutes § 53a-223,¹ one count of reckless driving in violation of General Statutes § 14-222,² and one count of attempt to escape or elude a police officer in violation of General Statutes § 14-223(b),³ and from the judgment revoking his probation imposed on a previous conviction after a trial to the court. On appeal the defendant challenges his conviction under § 53a-223 on the ground that the state failed to proffer sufficient evidence for the jury to have found that he had violated the protective order. In addition, the defendant claims that the trial court improperly enhanced, pursuant to General Statutes § 53a-40b,⁴ his sentence for violating § 14-223(b). Finally, the defendant claims that the trial court improperly revoked his probation and imposed the remaining unexecuted portion of his sentence resulting from a prior conviction. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On June 24, 2003, the defendant was arrested and charged with disorderly conduct on the basis of a complaint by Karen Johnson, the mother of his child, from whom he is estranged. He was released on a $15,000 bond, and a protective order was issued barring the defendant from coming within 100 yards of Johnson.

At approximately 11 p.m. on July 27, 2003, the department of children and families received a call from an individual purporting to be the defendant and claiming that he had shot Johnson. Police officers from the Hartford police department subsequently were dispatched to Johnson's home at 59 Lenox Street in Hartford. Officer Giuseppe Uccello and several other officers arrived at Johnson's home at approximately 1:30 a.m. and found her unharmed. While in Johnson's home, Uccello observed the defendant's car, which had been described to the police by Johnson, passing directly in front of the home. Uccello then entered his police car and followed the defendant's car until it stopped at his home at 154 Edgewood Street in Hartford, which was one block away from Johnson's home. Uccello activated his overhead lights and pulled up behind the defendant's car. The defendant immediately sped off and led Uccello and other responding officers on a high speed chase that ended with the defendant's apprehension on Edgewood Street, near his home.

As a result of the defendant's conduct in the early morning hours of July 28, 2003, he was charged, in part A of a two part information, with one count of second degree harassment in violation of General Statutes § 53a-183 (a)(3), one count of criminal violation of a protective order in violation of § 53a-223, one count of reckless driving in violation of § 14-222, one count of attempt to escape or elude a police officer in violation of § 14-223(b), one count of attempt to assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59 (a)(1), and one count of attempt to assault a public safety officer in violation of General Statutes §§ 53a-49 (a)(2) and 53a-167c (a)(1). In part B of the information, the defendant was charged with being subject to a sentence enhancement under § 53a-40b for committing an offense while released on bond. A jury trial was held on part A of the information, after which the defendant was found guilty of criminal violation of a protective order, reckless driving, and attempt to escape or elude a police officer. The jury acquitted the defendant on the remaining three counts. After the jury had rendered its verdict on part A of the information, the defendant entered a plea of guilty on part B of the information. The trial court rendered judgment in accordance with the jury's verdict and sentenced the defendant to prison terms of five years, execution suspended after one year, for violation of the protective order, thirty days for reckless driving, and one year for attempt to escape or elude a police officer, said sentences to be served consecutively. The court also sentenced the defendant to a one year sentence enhancement pursuant to § 53a-40b. In addition, because the trial court found that the defendant had violated a condition of his probation stemming from a 1999 conviction, the trial court revoked the defendant's probation and imposed the full six year unexecuted portion of the defendant's 1999 sentence to be served consecutive to the sentence imposed under the present conviction. This appeal followed.⁵ Additional facts will be set forth as necessary.

I

The defendant first claims that the state failed to proffer sufficient evidence for the jury to find him guilty of violating the June, 2003 protective order. The defendant does not challenge that he was subject to a valid protective order issued pursuant to General Statutes § 46b-38c (e)⁶ and that he, in fact, violated the protective order's provision ordering him to "[r]efrain from coming within 100 yards of [Johnson]." Rather, the defendant claims that the jury reasonably could not have found that he had the requisite intent to violate the protective order's condition that he refrain from coming within 100 yards of Johnson because there was no evidence that the defendant knew that Johnson was home when he drove down her street.⁷ In response, the state contends that, although there was no direct evidence of the defendant's intent to come within 100 yards of Johnson, it proffered ample circumstantial evidence from which the jury reasonably could have inferred such an intent. We agree with the state.

This court has held that proof of the criminal violation of a protective order pursuant to § 53a-223 "merely requires the issuance of a protective order against the defendant pursuant to § 46b-38c (e) . . . and the defendant's violation of that order." State v. Wright, 273 Conn. 418, 432, 870 A.2d 1039 (2005). This court has not considered previously whether a violation of § 53a-223 (a) requires that the act constituting the violation of the protective order be accompanied by a specific mens rea.

The Appellate Court, however, has considered this question on numerous occasions, and it has concluded that, "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." (Internal quotation marks omitted.) State v. Hasfal, 94 Conn.App. 741, 745, 894 A.2d 372 (2006); State v. Binnette, 86 Conn.App. 491, 497, 861 A.2d 1197 (2004), cert. denied, 273 Conn. 902, 868 A.2d 745 (2005); accord State v. Hersey, 78 Conn.App. 141, 162, 826 A.2d 1183, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003); State v. Charles, 78 Conn.App. 125, 130-31, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). The Appellate Court further has explained that, "[h]aving declined to adopt the argument that criminal responsibility for the violation of a protective order requires specific intent, we have not, nevertheless, held that the statute is one of strict liability. Rather, we believe that it is a general intent statute, requiring proof that one charged with its violation intended to perform the activities that constituted a violation of the protection order.

"General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. Where a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts." (Internal quotation marks omitted.) State v. Charles, supra, 78 Conn.App. at 131, 826 A.2d 1172.

We agree with the Appellate Court that the intent required to prove a violation of § 53a-223 (a) is only that the defendant intended to perform the activities that constituted the violation of the protective order. In the present case, the activity that constituted the violation of the protective order was coming within 100 yards of Johnson. Thus, the state needed to prove that the defendant came within 100 yards of Johnson and that this act resulted from intentional conduct rather than accident or mistake.

The following additional facts are necessary to determining whether the state met this burden. At trial, Johnson offered the following testimony. She previously had a relationship with the defendant for approximately seven years and that, during the course of their relationship, they had a child together. At some subsequent point in time, their relationship became hostile. On July 27, 2003, Johnson worked at Hartford Hospital, her place of employment, until 11:30 p.m. and she returned to her home after work. She had lived at the Lenox Street address for thirty years. At approximately 1:30 a.m. on July 28, 2003, police officers had come to her home to check on the well-being of her and her child.

The state also presented evidence that, at approximately 11 p.m. on July 27, 2003, a male identifying himself as the defendant had called the hotline for the department of...