State v. Opio-Oguta

• Decision Date: 23 September 2014
• Docket Number: AC 34684
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. EDGAR OPIO-OGUTA

STATE OF CONNECTICUT v. EDGAR OPIO-OGUTA

AC 34684

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 4, 2014

September 23, 2014

Alvord, Sheldon and Harper, Js.

(Appeal from Superior Court, judicial district of Hartford, geographical area number fourteen, Randolph, J.)

Katherine C. Essington, assigned counsel, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Mullins, senior assistant state's attorney, for the appellee (state).

Opinion

HARPER, J. The defendant, Edgar Opio-Oguta, appeals from the judgment of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223 and disorderly conduct in violation of General Statutes § 53a-182 (a) (1). On appeal, the defendant argues that the court (1) improperly enlarged the offense of criminal violation of a protective order by including uncharged misconduct in its jury charge; (2) improperly failed to charge the jury that criminal violation of a protective order is a general intent crime; and (3) abused its discretion in admitting into evidence a recording of the victim's 911 telephone call. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim met the defendant in May, 2010. The victim moved in with the defendant and became the defendant's girlfriend for two or three months. After the victim and the defendant separated, the defendant continued to call the victim and send her text messages. In June, 2010, prior to the end of their relationship, the victim obtained a protective order requiring the defendant to stay away from the victim's residence and not to contact her.¹ After the protective order was issued, the defendant continued to call the victim and her children. The victim did not report these instances to the police, however, because she did not feel physically threatened by them. In November, 2010, the victim moved to a residence in Hartford with her boyfriend, Chol Mangor, and his cousin, Ring Yak.

On the afternoon of January 8, 2011, the victim and Mangor were napping in the bedroom of their residence, and Yak and a few of his friends were in the living room, when the defendant came into the bedroom with a beer bottle in his hand and asked to speak to Mangor. When Mangor told the defendant to leave, the defendant threw the beer bottle, missing Mangor's head and hitting the wall. The victim called the police, who arrived and arrested the defendant.

The defendant was charged with criminal violation of a protective order in violation of § 53a-223 and disorderly conduct in violation of § 53a-182 (a) (1). The jury found the defendant guilty of both charges, upon which the court imposed a total effective sentence of three years incarceration, execution suspended after sixteen months, with three years of probation.² Additional facts will be set forth as they pertain to each claim.

I

The defendant first argues that the court improperly enlarged the offense of criminal violation of a protective order in its charge to the jury.

The following facts are relevant to this claim. Count one of the second amended long form informationalleged, in pertinent part, that "on or about January 8, 2011, at approximately 3:15 p.m., [the] defendant . . . did go to the residence of the protected party . . . and did harass her and did cause contact that did cause her annoyance and alarm, said conduct in violation of [§] 53a-223."

At the conclusion of the evidence, a charge conference took place on the record. During this conference, the court reviewed its proposed charge with counsel. The court also considered requests to charge submitted by the defendant. The court's proposed charge regarding criminal violation of a protective order did not indicate that the state had alleged that the defendant called or texted the victim in violation of the protective order, and this was not discussed during the charge conference. In the court's final charge, however, the court stated: "The state alleges that the defendant harassed the complaining witness. The state also alleges that the defendant did not stay away from the residence of the protected person, and the state also alleges that the defendant called or texted the protected person in violation of the protective order." (emphasis added.)³ The defendant argues that by including the language regarding phone calls and text messages, the court improperly enlarged the offense of criminal violation of a protective order. The state contends that although this added language potentially enlarged the offense, the evidence and instructions as a whole guided the jury to a proper verdict.

We initially note that the defendant did not object to the court's charge on criminal violation of a protective order and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine.⁴ Pursuant to Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. 239-40. Because the record in this case is adequate for review and the defendant's claim implicates his right to be sufficiently informed of the nature of the charges against him, pursuant to the federal and state constitutions; see State v. Dunstan, 145 Conn. App. 384, 395 and n.8, 74 A.3d 559, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013); we will proceed to review the merits of the defendant's claim pursuant to Golding.

"[E]nlargement cases involve claims that the trial court expanded the state's information by instructing the jury on statutory or factual alternatives not chargedin the information. . . . It is incumbent upon the defendant in an enlargement case to demonstrate that the trial court's charge caused him unfair surprise or prejudiced him in the preparation of his defense. . . . In other words, the defendant must show that: (1) the challenged jury instructions improperly enlarged the charges brought against him; and (2) such enlargement was prejudicially harmful. The defendant's enlargement claims, like other claims that jury instructions violated a constitutional right, require us to exercise plenary review as we examine the charge as a whole to determine whether it misled the jury." (Citation omitted; internal quotation marks omitted.) State v. David N.J., 301 Conn. 122, 158, 19 A.3d 646 (2011). "Any error in an instruction, even one of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury [was] misled." (Internal quotation marks omitted.) State v. Rabindranauth, 140 Conn. App. 122, 129, 58 A.3d 361, cert. denied, 308 Conn. 921, 62 A.3d 1134 (2013).

The defendant contends that he was prejudiced by the inclusion of the erroneous language in the court's charge because his defense was based on mistake or accident in that he did not know the victim was living at the address at issue, and went there to visit friends, not to see the victim. According to the defendant, evidence that he previously had tried to contact the victim in violation of the protective order was inconsistent with, and, thereby undermined, this defense. See State v. Belton, 190 Conn. 496, 503-504, 461 A.2d 973 (1983). The defendant further argues that because the court failed to grant his pretrial motion for notice of uncharged misconduct, he was unfairly surprised and prejudiced in the preparation of his defense by the inclusion of the challenged language in the court's charge.⁵

We agree with the defendant that the court improperly included the language regarding phone calls and text messages in its jury charge. We conclude, however, that this error was harmless in light of the defendant's conviction of disorderly conduct, as alleged in count two of the information. Count two alleged that "on or about the 8th day of January 2011, at approximately 3:15 p.m., in the vicinity of [the victim's residence, the defendant] did intend to cause inconvenience, annoyance and recklessly caused a risk thereof to [the victim], and engaged in violent, tumultuous, and threatening conduct toward [the victim] and Chol Mangor . . . in violation of [§] 53a-182 (a) (1)." By this conviction, the jury necessarily found that on January 8, 2011, at approximately 3:15 p.m., the defendant engaged in violent, tumultuous, and threatening conduct toward the victim and Mangor.⁶ The evidence before the jury regarding the incident on January 8, 2011, was that the defendant appeared at the bedroom door of the victim's residence while she and Mangor were napping, andthrew a beer bottle, missing Mangor's head and hitting the wall. Having found that the defendant engaged in such conduct, it necessarily found that the defendant violated the protective order at the same time, place and date. See State v. Padua, 273 Conn. 138, 167-171, 869 A.2d 192 (2005) (although jury instruction improperly omitted essential element of crime, error harmless where omitted element uncontested and supported by overwhelming evidence); State v. Haywood, 109 Conn. App. 460, 471-72, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008). When viewed in this light, we conclude that although the court improperly included the language regarding phone calls and text messages in its charge to the jury, any such error was harmless beyond a reasonable doubt. The defendant, therefore, cannot satisfy the...