State v. Parnoff

• Decision Date: 06 October 2015
• Docket Number: No. 36567.,36567.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Laurence V. PARNOFF.

160 Conn.App. 270

125 A.3d 573

STATE of Connecticut

v.Laurence V. PARNOFF.

No. 36567.

Appellate Court of Connecticut.

Argued May 19, 2015.

Decided Oct. 6, 2015.

Norman A. Pattis, New Haven, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Michael A. DeJoseph, senior assistant state's attorney, for the appellee (state).

KELLER, PRESCOTT and WEST, Js.

KELLER, J.

The defendant, Laurence V. Parnoff, appeals from the judgment of conviction, rendered after a jury trial, of disorderly conduct in violation of General Statutes § 53a–182 (a)(1). He claims that there was insufficient evidence to sustain the jury's verdict. We agree and, accordingly, reverse the judgment of conviction.¹

The following facts, as a jury reasonably could have found, and procedural history are relevant here. On July 11, 2011, Kyle Lavin, a summer intern at a water utility company, was tasked with conducting routine maintenance on a fire hydrant located on the defendant's property. Lavin called David Lathlean, an employee of the water utility company, to assist him. Lathlean and Lavin arrived at the defendant's residence in separate company trucks. In addition, Lathlean and Lavin wore identification badges and bright yellow shirts with the company's name imprinted on them. They proceeded to enter the defendant's property and locate the fire hydrant, which was situated in a wooded area approximately 100 feet from the defendant's home.² Upon inspecting the fire hydrant, they noticed that its front cap was missing. Approximately ten to twenty feet away from the fire hydrant was an open-ended canopied shed wherein they located the fire hydrant's missing cap, which had a hose fitting welded into it. The water utility company did not permit fire hydrant caps to be removed and modified, indicating that someone had tampered with the front cap.

Shortly after Lathlean and Lavin found the missing cap, the defendant's daughter arrived at the defendant's residence. Lathlean briefly spoke with the defendant's daughter, who informed him that the property belonged to the defendant. The defendant's daughter then began heading toward the home when she encountered the defendant, who was walking up the driveway, and informed him that Lathlean and Lavin were on the property. The defendant proceeded to confront Lathlean about his presence on the property. Lathlean explained that he, along with Lavin, were employed by the water utility company and noted their discovery of the fire hydrant's compromised front cap. In response, the defendant claimed that they had no right to be on his property and stated that he would retrieve a gun and shoot them if they did not leave.³ Lathlean then called the police. The defendant proceeded to walk around his property with a coffee can in search of worms to use as fishing bait. Lathlean followed the defendant, and the defendant continued to tell Lathlean, along with Lavin, to leave his property. In total, the defendant asked Lathlean and Lavin to leave his property at least six times.⁴

Glynn McGlynn, a police officer with the Stratford Police Department, and another police officer arrived at the defendant's residence approximately ten minutes after Lathlean had called the police. McGlynn asked the defendant whether he had stated that he would shoot Lathlean and Lavin with a gun, which the defendant admitted to doing. McGlynn then asked the defendant to step back multiple times so he could speak with Lathlean and Lavin privately, but the defendant refused to leave the immediate area. Thereafter, McGlynn proceeded to arrest the defendant.

The defendant was charged with disorderly conduct in violation of § 53a–182 (a)(1) and criminal mischief in the fourth degree in violation of General Statutes § 53a–117a (a)(1).⁵ A jury found him guilty of disorderly conduct, but not guilty of criminal mischief. The court sentenced the defendant to three months incarceration, execution suspended, followed by one year of probation with special conditions, which required him to complete an anger management program and to write an apology letter to Lathlean and Lavin. The court also imposed a fine of $500, plus court costs. This appeal followed. Additional facts will be set forth as necessary.

The defendant's claim that there was insufficient evidence to sustain the jury's verdict convicting him of disorderly conduct in violation of § 53a–182 (a)(1) is dispositive of this appeal. Specifically, he asserts that no jury reasonably could have found that his statement to Lathlean, that he would get a gun and shoot Lathlean and Lavin if they did not leave his property, constituted "fighting words," which are a category of unprotected speech under the first amendment to the federal constitution, and, consequently, that no jury reasonably could have found that he engaged in "violent, tumultuous or threatening behavior" as required under § 53a–182 (a)(1). We agree.

We begin by setting forth the relevant standard of review. "The standard of review we [ordinarily] 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.... In [State v. DeLoreto, 265 Conn. 145, 827 A.2d 671 (2003) ], however, [our Supreme Court] explained that [t]his [c]ourt's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated.... In cases [in which] that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the [f]irst [a]mendment ... protect.... We must [independently examine] the whole record ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.... [Our Supreme Court] ... reiterated this de novo scope of review in free speech claims in DiMartino v. Richens,

263 Conn. 639, 661–62, 822 A.2d 205 (2003).... Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the opportunity to observe the demeanor of the witnesses ... the reviewing court must examine for [itself] the statements in issue and the circumstances under which they were made to determine if they are protected by the first amendment." (Internal quotation marks omitted.) State v. Carter, 141 Conn.App. 377, 397–98, 61 A.3d 1103, cert. granted on other grounds, 308 Conn. 943, 66 A.3d 886 (2013).

General Statutes § 53a–182 provides in relevant part: "(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior...." Therefore, "the crime of disorderly conduct consists of two elements: (1) that the defendant intended to cause, or recklessly created a risk of causing, inconvenience, annoyance or alarm and (2) that he did so by engaging in fighting or in violent, tumultuous or threatening behavior...." (Internal quotation marks omitted.) State v. Briggs, 94 Conn.App. 722, 726–27, 894 A.2d 1008, cert. denied, 278 Conn. 912, 899 A.2d 39 (2006).

Our Supreme Court has held that verbal statements, unaccompanied by physical violence, are considered "violent, tumultuous or threatening behavior" when they amount to "fighting words that portend physical violence." State v. Szymkiewicz, 237 Conn. 613, 620, 678 A.2d 473 (1996). In State v. Indrisano, 228 Conn. 795, 811–15, 640 A.2d 986 (1994), the court rejected a defendant's claim that § 53a–182 (a)(1) was unconstitutionally vague on its face or as applied to him. In reaching that conclusion, the court explained that § 53a–182 (a)(1)"prohibits physical fighting, and physically violent, threatening or tumultuous behavior." Id., at 812, 640 A.2d 986. The court continued by stating that the foregoing conclusion "is consistent with the ‘fighting words' limitation that must be applied when the conduct sought to be proscribed consists purely of speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ; State v. Anonymous (1978–4), 34 Conn.Supp. 689, 695, 389 A.2d 1270 (1978). The Chaplinsky doctrine permits the state to prohibit speech that has a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the persons to whom it is directed. See Statewide Grievance Committee v. Presnick, 18 Conn.App. 316, 559 A.2d 220 (1989)." State v. Indrisano, supra, at 812, 640 A.2d 986.

Subsequently, in State v. Szymkiewicz, supra, 237 Conn. at 618, 678 A.2d 473, our Supreme Court addressed whether General Statutes § 53a–181 (a)(1), the statute which creates the infraction of creating a public disturbance, proscribes speech that can be characterized as "fighting words." The elements of § 53a–181 (a)(1) are identical to the elements of § 53a–182 (a)(1), except that § 53a–181 (a)(1) requires the actor to engage in "fighting or in violent, tumultuous or threatening behavior" in a public place. Id. Accordingly, the court cited its interpretation of § 53a–182 (a)(1) in Indrisano and stated that "we recognized [in Indrisano ] that § 53a–182 (a)(1) could constitutionally...