State v. Lo Sacco

• Decision Date: 05 November 1987
• Docket Number: No. 5130,5130
• Citation: 12 Conn.App. 481,531 A.2d 184
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Frank X. Lo SACCO.

Page 184

531 A.2d 184

12 Conn.App. 481

STATE of Connecticut v. Frank X. Lo SACCO.

No. 5130.

Appellate Court of Connecticut.

Argued June 11, 1987.

Decided Sept. 22, 1987.

Petition for Certification Denied Nov. 5, 1987.

Frank X. Lo Sacco, pro se.

F. Kent Sistare, Jr., Sp. Asst. State's Atty., with whom, on the brief, were John Whalen and James G. Clark, Asst. State's Attys., for appellee (State).

Before BORDEN, DALY and BIELUCH, JJ.

BORDEN, Judge.

The defendant ¹ appeals from his conviction, after a trial to the court, on two informations, each charging the infraction of creating a public disturbance in violation of General Statutes § 53a-181a. The two charges arose out of incidents occurring on separate days, June 14, 1985, and June 15, 1985, ² respectively. The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on both counts (2) in failing to advise him of his constitutional right not to testify, (3) in basing his convictions on constitutionally protected speech, (4) in allowing the state to file a substitute information on the day of trial (5) in denying his motion for mistrial, and (6) in denying him a jury trial pursuant to General Statutes (Rev. to 1985) § 54-82b(a). We find error in part.

I

The defendant's first claim is that the trial court should have granted his motion for judgment of acquittal on both informations. We agree in part, and hold that the evidence was insufficient to support a guilty verdict with respect to the incident on June 15, 1985.

The defendant was charged with violating subdivisions (1), (2) and (3) of General Statutes § 53a-181a(a). That statute provides: "A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise." The trial court concluded that the defendant violated subdivisions (1) and (2) of the statute on both dates in question. ³

Our standard of review of the conclusions of the trier of fact, whether it be a judge or a jury, is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We construe the evidence in the light most favorable to sustaining the verdict or judgment, and we will confirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Hanson, 12 Conn.App. 32, 38, 529 A.2d 720 (1987).

The trier of fact in this case was the judge. Pursuant to Practice Book § 4059, the trial court rendered an oral memorandum of decision setting forth the factual basis of its decision. In the absence of a conclusion that a finding is clearly erroneous we are bound by the court's findings. Practice Book § 4061.

The trial court found the following background facts. Prior to 1984, the defendant and the complaining witness, Deborah Parmalee, lived together and had a child, Kevin, who was born in 1979. In 1983 or early 1984, the relationship ended, and a custody proceeding ensued which was ongoing at the time of the two incidents in question. The trial court found that during the period when the defendant and Parmalee were living together, Parmalee was "constantly terrified" of the defendant. The court found support for this conclusion in the "disparity in physical size between the two individuals--the defendant being a robust, well built male, and the complainant witness being a somewhat frail and tiny female."

As to the incidents at issue, the court found that on June 14, 1985, at about 9:45 p.m., Parmalee and Kevin were returning to their home by car when the defendant "accosted" them. According to the oral memorandum of decision, the following occurred: "[T]he [complainant's] car apparently was stopped, but [the defendant] leaned up against the car, had been--had a strong odor of alcohol on his breath, was yelling ⁴ at the complaining witness, had his face up close to her. She became annoyed by this, in the light of the previous history of the tumultuous relationship [between the two], became very frightened." The trial court further found that the defendant intended to interfere and annoy, and that as a result, both Parmalee and Kevin suffered from "apprehensive fear and a state of fright." The court concluded that the defendant "[intended] ⁵ to cause annoyance to the complaining witness ... and ... engaged in violent and threatening behavior, and also that he annoyed the complaining witness by offensive conduct." (Emphasis added.) By its finding, therefore, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a(a).

With respect to the second count, the court found that on the following day, June 15, as Parmalee and Kevin were leaving Friendly's Restaurant, they were once again "accosted" by the defendant. Parmalee and Kevin were getting into the car, when the defendant, who had just arrived at Friendly's, approached the car and called to the child. The court found that "the child was very much disturbed. It caused him to run into the car and do a back-flip into the back seat, so as to get away from the father." (Emphasis added.) Moreover, it concluded that Parmalee was "substantially frightened" and that the defendant's conduct created in Parmalee and Kevin "apprehensive fear and a state of fright." The court concluded that the defendant intended to annoy and alarm the child and Parmalee by offensive conduct, especially in light of the incident of the prior evening and the history of their relationship. Additionally, the court concluded that the defendant engaged in "violent and threatening behavior." By its finding, once again, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a(a).

On the basis of our thorough review of the testimony in this case, we conclude that two specific factual findings of the court are clearly erroneous because they are unsupported by the evidence. See generally Buddenhagen v. Luque, 10 Conn.App. 41, 521 A.2d 221 (1987). First, there is no evidence to support the trial court's finding that Parmalee was "constantly terrified" by the defendant. ⁶ The bare fact that the defendant is larger than Parmalee is insufficient evidence to support such a conclusion. Second, the trial court's conclusion that Kevin, in reacting to the defendant's presence at Friendly's, was placed into "apprehensive fear and a state of fright," was "disturbed" and did "a back flip ... to get away from his father," is also unsupported by the evidence. The only evidence on this matter was presented by Kevin himself, who was called as a defense witness. He testified that he "flipped" into the back seat because he was "startled" to see his father, since he did not expect him to be at Friendly's. There is no evidence to support a conclusion that the child feared the defendant in any way and was trying to get away from him. Nor is there any evidence to support a conclusion that Kevin was "annoyed" by the defendant.

Before turning to the issue at hand, we must recognize a constitutional limitation on the application of General Statutes § 53a-181a. By the broad language chosen by the legislature, the statute is intended to proscribe a wide range of human conduct which otherwise could not be prohibited by precise statutory language. It has been recognized that criminal statutes of this sort must be "scrutinized with particular care" since they may "make unlawful a substantial amount of constitutionally protected conduct," including speech. Houston v. Hill, --- U.S. ----, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987). In Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the United States Supreme Court held that when words are claimed to offend a statute, only those "having a direct tendency to cause acts of violence by the persons" to whom they are addressed may be proscribed. "[F]ighting words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the first amendment. Id., 572, 62 S.Ct. at 769. This limiting doctrine has been applied in Connecticut to a number of statutes. See State v. Beckenbach, 1 Conn.App. 669, 476 A.2d 591 (1984), rev'd on other grounds, 198 Conn. 43, 501 A.2d 752 (1985) ("Fighting words" limitation applied to that portion of breach of the peace statute; General Statutes § 53a-181; which proscribes abusive language); State v. Anonymous (1978-4), 34 Conn.Sup. 689, 695, 389 A.2d 1270 (1978) ("Fighting words" limitation applied to subdivision (2) of disorderly conduct statute; General Statutes § 53a-182; which prohibits "offensive or disorderly conduct"); see also State v. Duhan, 194 Conn. 347, 357 n. 2, 481 A.2d 48 (1984). With these constitutional considerations in mind, we turn to the issue at hand, namely, whether the defendant's conduct as found by the trial court, but excluding the findings we have determined to be clearly erroneous, reasonably supports a conclusion that the defendant created a public disturbance on both occasions in question.

With respect to the incident on June 14, 1985, we conclude that the evidence was sufficient to support the trial court's determination that the defendant, with intent to cause annoyance and alarm, did annoy Parmalee by offensive conduct in violation of subdivision (2) of General Statutes § 53a-181a. ⁷

"Offensive conduct" is not defined in the statute, and upon a review of Connecticut case law, we have discovered only one case that discusses the term. In State v. Anonymous (1978-4), supra, the Appellate Session of the Superior Court held that any definition of "offensive conduct" must incorporate the fighting words limitation of Chaplinsky v. New Hampshire, supra, to the extent that the conduct...