State v. Robert S.

• Decision Date: 27 February 2018
• Docket Number: AC 38667
• Citation: 181 A.3d 568,179 Conn.App. 831
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. ROBERT S.

179 Conn.App. 831

181 A.3d 568

STATE of Connecticut

v.ROBERT S.^*

AC 38667

Appellate Court of Connecticut.

Argued November 14, 2017

Officially released February 27, 2018

James P. Sexton, assigned counsel, with whom were Megan Wade, assigned counsel, and, on the brief, Cameron Dorman, assigned counsel, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and, on the brief, Kathleen Dwyer, former senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Pellegrino, Js.

ALVORD, J.

The defendant, Robert S., 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 On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to support his conviction, and (2) the trial court denied him due process by using, and denying him the opportunity to contest, unreliable information during sentencing. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts.

The defendant and the victim were married in 2006 and divorced in 2013. The couple has two minor children, ages four and five at the time of trial, both of whom live with the victim. On October 22, 2014,² the court, Murphy, J. , issued a protective order against the defendant, naming the victim as the protected person.³ The order provided in relevant part: "Do not contact the protected person in any manner, including by written, electronic or telephone contact, and do not contact the protected person's home, workplace or others with whom contact would be likely to cause annoyance or alarm to the protected person." Under "Additional Orders of Protection," the order provided: "Any access to the minor child must be arranged and facilitated through a third party relative,"⁴ and "[t]he [d]efendant is allowed to have contact with the protected person only through Our Family Wizard software."⁵

In 2015, the victim and the children were living at the maternal grandmother's home in Bloomfield. That house had a landline telephone (landline). On January 5, 2015, a phone call was placed from the defendant's cell phone to the landline. The victim recognized the defendant's cell phone number on the landline's caller ID. The victim did not answer the phone call. The victim felt anxious when she received this phone call. She checked on the children, checked the doors and locks, and then called the police.

Officer Adrian J. Loignon of the Bloomfield Police Department responded to the residence. Officer Loignon spoke to the victim, who showed him the landline's caller ID. Officer Loignon recorded the phone number from the caller ID, and when he returned to the police department, called the phone number four times. No one answered his calls, and the voicemail box was full. Officer Loignon reviewed the police department's in-house records and learned that the phone number recorded from the caller ID was listed as the defendant's phone number. He also reviewed the in-house records and confirmed that there was a protective order prohibiting the defendant from contacting the victim. On the basis of this information, Officer Loignon applied for an arrest warrant for the defendant.

After trial, the jury convicted the defendant of criminal violation of a protective order.⁶ The court, Suarez, J. , sentenced the defendant to a term of incarceration of five years, execution suspended after three years, followed by five years of probation. This appeal followed.

I

The defendant first claims that the evidence at trial was insufficient to support his conviction of criminal violation of a protective order. The defendant does not challenge that he was subject to a valid protective order,⁷ or that a call was made from his cell phone to the landline at the home where the victim was living. Rather, the defendant argues that the jury reasonably could not have found beyond a reasonable doubt that he had the requisite intent to engage in conduct that violated the protective order's condition that prohibited him from contacting the victim because there was insufficient evidence that (1) the defendant made the phone call to the landline, or (2) if he did in fact make the call to the landline, he did so intentionally. We disagree.

We begin with the applicable standard of review and principles of law that guide our analysis. "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 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.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable....

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... 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.... Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... Indeed, direct evidence of the accused's state of mind is rarely available.... Therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.... [A]ny such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence." (Citations omitted; internal quotation marks omitted.) State v. Fagan , 280 Conn. 69, 79–81, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed. 2d 236 (2007).

A conviction of criminal violation of a protective order requires proof beyond a reasonable doubt that "an order ... has been issued against such person, and such person violates such order."⁸ General Statutes § 53a–223(a). Regarding intent, "the violation of a protective order statute is not a specific intent crime. All that is necessary is a general intent⁹ that the defendant intended to perform the activities that constituted the violation." (Footnote in original.) State v. Larsen , 117 Conn. App. 202, 208, 978 A.2d 544, cert. denied, 294 Conn. 919, 984 A.2d 68 (2009).

On the basis of our review of the record, we conclude that there was sufficient evidence before the jury from which it could conclude that the defendant both intended to, and did, call the landline in violation of the protective order. The jury heard evidence that the defendant and the victim were married, that they shared two children, and that the couple subsequently divorced. A copy of the protective order was entered into evidence, along with a transcript of the hearing at which the order was issued. The protective order prohibited the defendant from "contact[ing], including by ... telephone contact ... the protected person's home ...." The jury heard evidence that, on January 5, 2015, a call was placed from the defendant's cell phone to the landline at the grandmother's house, where the victim and children were living. The victim testified that she recognized the phone number on the caller ID as belonging to the defendant, that this made her anxious, and that she did what she "usually" does when "calls come in at odd times" and checked on the kids, the doors, and the locks before calling the police. We conclude that this evidence provided a sufficient basis for the jury's conclusion that the defendant called the landline, thereby contacting the protected person's home, in violation of the protective order.

As to the defendant's argument that the state did not prove that he, rather than someone else, made the call on January 5, we conclude that the jury was free to infer that the defendant made the call. The defendant testified that he did not remember making the call. The victim testified, however, that she recognized the phone number on the caller ID as belonging to the defendant. See, e.g., State v. Cummings , 46 Conn. App. 661, 682, 701 A.2d 663 (sufficient evidence that defendant drove by victim's house because jury could draw reasonable inferences from testimony of victim that she identified defendant's truck, which was known to her, driving past her apartment), cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

Officer Loignon testified that he confirmed with in-house records that the phone number on the caller ID was listed as belonging to the defendant. There was no evidence before the jury from which it reasonably could have inferred that someone other than the defendant had access to his cell phone. The absence of direct evidence that the...