State v. Parnoff

• Citation: 329 Conn. 386,186 A.3d 640
• Decision Date: 03 July 2018
• Docket Number: SC 19588
• Parties: STATE of Connecticut v. Laurence V. PARNOFF
• Court: Supreme Court of Connecticut

329 Conn. 386

186 A.3d 640

STATE of Connecticut

v.Laurence V. PARNOFF

SC 19588

Supreme Court of Connecticut.

Argued October 10, 2017

Officially released July 3, 2018

Mitchell S. Brody, senior assistant state's attorney, Rocky Hill, with whom, on the brief, were John C. Smriga, state's attorney, Bridgeport, and Michael A. DeJoseph, Jr., senior assistant state's attorney, Stratford, for the appellant (state).

Norman A. Pattis, Bethany, for the appellee (defendant).

Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js.^*

D'AURIA, J.

The defendant, Laurence V. Parnoff, uttered threatening words to two water company employees who had entered his property pursuant to an easement to service a fire hydrant—telling them, essentially, that if they did not leave his property, he would retrieve a gun and shoot them. As a result of his statement, the defendant was convicted after a jury trial of disorderly conduct in violation of General Statutes § 53a–182 (a) (1), which criminalizes intentionally or recklessly causing inconvenience, annoyance, or alarm by way of "violent, tumultuous or threatening behavior ...." The defendant appealed to the Appellate Court from the judgment of conviction, arguing that, under principles stemming from the first amendment to the United States constitution, there was insufficient evidence to sustain a guilty verdict as to the disorderly conduct charge. State v. Parnoff , 160 Conn. App. 270, 274, 125 A.3d 573 (2015). Because the behavior giving rise to his conviction was pure speech and not physical violence, the first amendment forbids the imposition of criminal sanctions unless that speech amounts to so-called "fighting words"—words that would cause a reasonable addressee to respond with imminent violence under the circumstances. (Internal quotation marks omitted.) State v. Baccala , 326 Conn. 232, 234–35, 251, 163 A.3d 1, cert. denied, ––– U.S. ––––, 138 S.Ct. 510, 199 L.Ed.2d 408 (2017) ; see also U.S. Const., amend. I. The Appellate Court reversed the judgment after concluding that the defendant's statement was not fighting words because, although inappropriate, the defendant's words were not likely to provoke an immediate and violent reaction from the water company employees. State v. Parnoff , supra, at 281, 125 A.3d 573. We agree with the Appellate Court and affirm its judgment.

The jury reasonably could have found the following facts. On the day of the incident, two employees of the Aquarion Water Company (water company) were sent to the defendant's property to perform fire hydrant maintenance. One of the two employees, Kyle Lavin, was an apprentice level employee working his fourth summer for the water company performing hydrant maintenance. Lavin needed assistance locating a fire hydrant on the defendant's property that he was scheduled to routinely service, and he called fellow water company employee David Lathlean to help him. Lathlean was an experienced employee, having worked for the water company for approximately ten years. Although the fire hydrant was located on the defendant's private property, the water company had a preexisting easement that spanned a radius of twenty feet beyond the fire hydrant and hydrant pipe.¹

Lavin and Lathlean arrived at the defendant's property in separate company branded trucks, wearing bright yellow company branded safety shirts and identification badges. They entered the property together and located the hydrant down a long driveway through a wooded area, approximately 100 feet from the defendant's residence. Upon inspecting the fire hydrant, Lavin and Lathlean discovered that one of its caps was missing. They then began to look for the cap in the vicinity of the hydrant, including in an open-ended shed with a canopy roof located several yards away. Lathlean entered the open-ended shed and discovered the hydrant's missing cap, which appeared to have a garden hose fitting welded into it. This indicated to Lathlean that someone had tampered with the hydrant because the water company does not permit the removal or modification of hydrant caps. As a result, the two employees called another water company employee, Beverly Doyle, who handled theft of service investigations.

Shortly thereafter, the defendant's daughter, who had just arrived at the property to visit her parents, and the defendant's wife were approached by the water company employees. Lathlean first spoke to the defendant's daughter, conveying to her that he suspected someone had tampered with the hydrant. The daughter testified that Lathlean was "[n]ot very nice, loud," and "angry."

The defendant then appeared and approached Lavin and Lathlean to confront them about their presence on the property. The defendant was wearing shorts and no shirt, and he appeared disheveled. He was also carrying a can that he was using to collect worms from the ground in order to go fishing with his grandson, who was elsewhere on the property. Lavin looked on as Lathlean explained to the defendant that they were employed by the water company to perform hydrant maintenance and had discovered the altered hydrant cap. According to Lavin, the defendant was very upset, throwing his arms up and down, yelling, and he told them to leave his property multiple times.

Despite Lathlean's explanation, the defendant told Lavin and Lathlean that they had no right to be on his property. According to Lathlean, the defendant then told him that, "if [they] didn't get off his property, he was going to get a gun or something like that ... [t]o shoot [them]." Although the defendant did not speak directly to Lavin, Lavin testified that he heard the defendant say, " ‘if you go into my shed, I'm going to go into my house, get my gun and [fucking] kill you.’ "²

Lathlean called the police, but the two employees remained on the property, even though they were trained by the water company to leave if a property owner became angry. Lathlean gave no outward reaction to the defendant's statement, testifying that "it just bounced right off [of] me" and that "I just stood there and was like, okay then, you know, let's see what happens." Lathlean also testified that he was not frightened by the defendant's words. In fact, when Lathlean called the police, he referred to the defendant as merely " ‘a little crabby’ " and did not report anything about a gun. Although Lavin testified that the defendant's words "[a]bsolutely" caused him alarm and trepidation, like Lathlean, he remained on the property. Nothing in Lavin's testimony indicated that he believed that the defendant was armed, and, thus, it did not appear that he was immediately capable of carrying out the threat. The defendant made no effort to return to his house to retrieve a gun.

After making the gun comment, the defendant walked away from Lavin and Lathlean and toward a nearby, fenced off animal pen. Lathlean began following the defendant around his property as the defendant continued to search for worms to collect. The defendant continued to repeatedly ask Lavin and Lathlean to leave his property. Around this time, Doyle arrived to investigate possible water contamination as a result of the tampering, and the defendant told her to leave the property too.

After Lathlean called the police, the defendant also called the police himself to report the incident. When the police officers arrived, the defendant admitted he had told Lavin and Lathlean he would shoot them with a gun. The officers repeatedly asked the defendant to step back so that they could privately interview the water company employees. When the defendant repeatedly refused to leave the immediate area, he was arrested. He was later charged with disorderly conduct in violation of § 53a–182 (a) (1) and fourth degree criminal mischief in violation of General Statutes § 53a–117a (a) (1) for tampering with the fire hydrant. The jury found the defendant not guilty of criminal mischief but found him guilty of disorderly conduct.

The defendant appealed to the Appellate Court, which reversed the judgment of conviction, remanded the case to the trial court, and directed that court to render a judgment of acquittal on the disorderly conduct charge. After reviewing the entire record, the Appellate Court concluded that the state had failed to present sufficient evidence to establish beyond a reasonable doubt that the defendant's statements were likely to provoke an immediate violent reaction, and, thus, they were not fighting words. State v. Parnoff , supra, 160 Conn. App. at 281, 125 A.3d 573.

We granted the state's petition for certification to appeal, limited to the following question: "Did the Appellate Court correctly determine, in its de novo review of the record, that there was insufficient evidence to support the defendant's conviction of disorderly conduct pursuant to ... § 53a–182 (a) (1) because the state's proof of that offense's threat element did not satisfy the first amendment's ‘fighting words’ doctrine?" State v. Parnoff , 320 Conn. 901, 901–902, 127 A.3d 185 (2015). Reviewing the record ourselves, we agree with the Appellate Court that there was insufficient evidence to sustain the defendant's conviction.

The defendant was convicted of violating § 53a–182 (a) (1), which provides in relevant part that a person is guilty of disorderly conduct when, "with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... [e]ngages in fighting or in violent, tumultuous or threatening behavior ...." The "behavior" giving rise to the conviction can consist of either physical actions or pure speech not accompanied by physical actions.

State v. Szymkiewicz , 237 Conn. 613, 618–20, 678 A.2d 473 (1996), citing State v. Indrisano , 228 Conn. 795, 811–12, 640 A.2d 986 (1994). When the behavior giving rise to the conviction is pure speech, as in the present case, the disorderly conduct statute intersects with the first amendment, which is applicable to the states through the fourteenth amendment...