State v. Nowacki

• Decision Date: 10 March 2015
• Docket Number: No. 34577.,34577.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael NOWACKI.

155 Conn.App. 758

111 A.3d 911

STATE of Connecticut

v.Michael NOWACKI.

No. 34577.

Appellate Court of Connecticut.

Argued Oct. 22, 2014.

Decided March 10, 2015.

Roy S. Ward, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, Suzanne M. Vieux, supervisory assistant state's attorney, and Justina Moore, assistant state's attorney, for the appellee (state).

LAVINE, BEACH and BORDEN, Js.

Opinion

BORDEN, J.

The defendant, Michael Nowacki, appeals from the judgment of conviction, rendered after a jury trial, of one count of harassment in the second degree in violation of General Statutes § 53a–183 (a)(2),¹ and one count of criminal violation of a protective order in violation of General Statutes § 53a–223 (a).² The defendant claims on appeal that: (1) the evidence was insufficient to support a conviction of criminal violation of a protective order; (2) the trial court improperly denied him a subpoena for a witness critical to his defense and improperly curtailed his testimony regarding that potential witness, in violation of due process; (3) the trial court improperly failed to instruct the jury that criminal violation of a protective order is a general intent offense; (4) his conviction of harassment in the second degree violated his right to due process because § 53a–183 (a)(2) is unconstitutional as applied to the defendant; and (5) the trial court improperly entered a thirty year protective order against the defendant. We reject the defendant's first claim. Because we agree with the defendant on his second and fourth claims, however, we reverse the judgment of the trial court.³

The defendant was charged in an initial information with one count of disorderly conduct in violation of General Statutes § 53a–182, and one count of illegal use of a motor vehicle with the intent to harass or intimidate in violation of General Statutes § 14–240a. The defendant subsequently was charged in a separate information with one count of harassment in the second degree in violation of § 53a–183, and was then further charged in a third information with criminal violation of a protective order in violation of § 53a–223. The three informations were joined for trial. The jury found the defendant guilty of criminal violation of a protective order and harassment in the second degree, and not guilty of disorderly conduct and illegal use of a motor vehicle with intent to harass or intimidate. The trial court rendered judgment of conviction in accordance with the jury's verdicts. This appeal followed.

The jury reasonably could have found the following facts in support of its verdicts. The totality of the charges in the present case stem from the dissolution of the defendant's marriage to Suzanne Sullivan in 2005. From 2005 until the end of 2009, the defendant and Sullivan shared joint custody of their children. Starting in October, 2009, the defendant and Sullivan jointly employed Katelyn Waters as a nanny for their two children. At that time, the defendant drafted an employment agreement for Waters that both he and Waters signed. As a result of the dissolution judgment, the defendant was required to pay 65 percent of Waters' salary and expenses, including a lease of a motor vehicle for her use.

In December, 2009, Sullivan was awarded full custody of their two children. At that time, Waters began to believe that she was exclusively employed by Sullivan. Sullivan reinforced this belief by telling Waters she was her sole employer. The defendant, on the other hand, continued to believe that Waters was still employed by both him and Sullivan, per the terms of the employment agreement and in light of his payment of the majority of Waters' expenses.

On February 21, 2010, the defendant attempted to contact Waters multiple times by phone about the tire maintenance of the leased vehicle. At the time of the calls, Waters was working at a separate job. Waters answered one of the phone calls, informed the defendant that she no longer worked for him pursuant to the change in the children's custody arrangements, and asked him not to contact her again. Shortly after, the defendant drove to Waters' place of employment and confronted her about the situation. Waters again asked the defendant not to talk to her and to leave immediately or she would contact the police. The defendant informed Waters that he would be confiscating the leased vehicle, which he then took with Waters' personal property inside. Out of fear for her personal safety, Waters called the police, who then arranged for her personal items to be returned.

The following morning, Sullivan observed the defendant in a car parked on a shared driveway in front of her house. She then drove Waters and her younger child to school. The defendant closely followed Sullivan's car in his vehicle for the entire distance to the school. After they arrived at the school, while Sullivan was walking the child into the building, the defendant exited his car and banged on the rear window of Sullivan's vehicle. The defendant yelled at Waters through the glass in an attempt to ask her questions. Sullivan yelled at the defendant to get away from her car, entered her vehicle and drove to the New Canaan Police Department to provide a sworn statement of the morning's events.

After returning to Sullivan's house alone, Waters again observed the defendant sitting in his car on the shared driveway. Waters called the police and Kevin Casey, an officer with the New Canaan Police Department, responded to the call. Casey specifically warned the defendant while they were outside Sullivan's house to cease all contact with Sullivan and Waters, and not to contact them by phone, e-mail, or in person. Casey informed the defendant that he would be arrested if he continued to contact either Sullivan or Waters. No protective order, however, had been issued at that time forbidding the defendant from having contact with Sullivan or Waters.

The next day, February 23, 2010, the defendant sent an e-mail to Waters that threatened legal action and demanded compliance with the employment agreement. Following Waters' receipt of the e-mail, she contacted the police, and the defendant was arrested and charged in separate informations with disorderly conduct and illegal use of a motor vehicle with the intent to harass or intimidate in regards to the events on February 22, 2010, and harassment in the second degree in regards to the e-mail sent to Waters on February 23, 2010.

Following arraignment on February 24, 2010, the trial court issued protective orders prohibiting the defendant from having contact with either Sullivan or Waters in any manner. On June 15, 2010, Sullivan received an e-mail from the defendant. In addition to Sullivan, the e-mail also was addressed to Wayne Fox, an attorney representing the town of Darien, as well as the editor's desk at the Darien Times, a local newspaper. The substance of the e-mail was unrelated to the defendant's ongoing dispute with Sullivan.⁴ Sullivan testified, however, that she routinely received e-mails from the defendant unrelated to her. After receiving the e-mail, Sullivan reported the contact to the New Canaan police. The defendant was rearrested and charged with criminal violation of a protective order.

The defendant represented himself at trial and was found guilty of criminal violation of a protective order and harassment in the second degree. The trial court rendered judgment in accordance with the jury's verdict and sentenced the defendant to a total effective term of five years incarceration, execution suspended after fifteen months. It also issued a protective order forbidding the defendant from contacting Sullivan or Waters in any manner for a period of thirty years and ten years, respectively. This appeal followed.

I

The defendant's first claim is that there was insufficient evidence to support the conviction of criminal violation of a protective order. He argues that the evidence presented by the state was insufficient to demonstrate a general intent to send the June 15, 2010 e-mail to Sullivan, and in doing so, violate the protective order. We disagree.

“We begin with the well established principles that guide our review. In reviewing a sufficiency of the evidence claim, 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.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict....

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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....

“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 evidence that supports the jury's verdict of guilty.” (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 593–94, 72 A.3d 379 (2013).

Criminal violation of a protective order is a crime requiring proof of general intent. State v. Fagan, 280 Conn. 69, 77, 905 A.2d 1101 (2006). “General intent is the term used to define the requisite mens rea for...