State v. Cody M. ( 2021 )

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STATE OF CONNECTICUT v. CODY M.*
(SC 20213)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Mullins and Ecker, Js.**
Syllabus
Convicted, after a jury trial, of two counts of violating a standing criminal
protective order and two counts of threatening in the second degree,
the defendant appealed to the Appellate Court, claiming, inter alia, that
his conviction of two counts of violating a protective order violated the
constitutional prohibition against double jeopardy and that the trial
court improperly instructed the jury as to the one of the counts of
violating a protective order by incorrectly defining the term ‘‘harassing.’’
The defendant’s conviction stemmed from his actions toward the victim
when they appeared before a juvenile court for a hearing relating to
their children. At the time, the defendant was subject to a standing
criminal protective order that, with limited exceptions, prohibited him
from contacting the victim in any manner and from threatening or harass-
ing her. As the hearing began, the defendant attempted to engage in
small talk with the victim, telling her that he still loved her and asking
her why she had blocked his phone calls, but she ignored him. The
defendant’s tone then changed, he whispered to the victim that she was
going to have problems, and, when she looked at him, he mouthed that
he was going to kill her. The Appellate Court affirmed the judgment of
conviction, concluding, inter alia, that the defendant’s double jeopardy
claim failed because his conviction of each count of violating a protective
order was supported by a separate and distinct act even though those
acts arose from the same conversation. The Appellate Court also con-
cluded that the trial court did not improperly instruct the jury as to the
definition of the term ‘‘harassing.’’ On the granting of certification, the
defendant appealed to this court. Held:
1. The Appellate Court correctly concluded that the defendant’s conviction
of two counts of violating a standing criminal protective order did not
violate the constitutional prohibition against double jeopardy: because
the purpose of the statute (§ 53a-223a) under which the defendant was
convicted is to protect victims of domestic violence by increasing the
penalty for violating protective orders, the legislature intended to punish
separately each discrete act that violates a protective order, rather than
to punish only the course of action that those acts constitute, and,
therefore, conviction of multiple counts is permitted for distinct acts
that constitute separate violations of § 53a-223a; in the present case,
the defendant’s statements, although made in quick succession, consti-
tuted two distinct acts in violation of two different conditions of the
protective order and, thus, were separately punishable, as the defen-
dant’s act of whispering to the victim that he loved her and asking her
why she had blocked his phone calls violated the protective order’s no
contact provision, and the defendant’s escalation of his behavior by
asserting that she was going to have problems and mouthing that he
would kill her was in violation of the order’s provision prohibiting him
from threatening the victim.
2. The defendant could not prevail on his claim that the Appellate Court
improperly upheld the trial court’s jury instruction as to the second
count of violating a standing criminal protective order because, even if
the trial court incorrectly defined the term ‘‘harassing,’’ any error was
harmless beyond a reasonable doubt; the state having alleged in that
second count that the defendant had violated the protective order by
either threatening or harassing the victim, and the jury having found
the defendant guilty of threatening in the second degree on the basis
of the same underlying conduct as that on which the second count was
based, the jury necessarily found the defendant guilty of threatening
the victim as charged in the second count.
Argued November 14, 2019—officially released September 21, 2020***
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of criminal violation of
a standing criminal protective order and threatening in
the second degree, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before O’Keefe, J.; verdict and judgment of guilty, from
which the defendant appealed to the Appellate Court,
Sheldon, Elgo and Flynn, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, Laura DeLeo, senior assistant state’s
attorney, and Bruce R. Lockwood, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this certified
appeal is whether multiple convictions for violation of
a standing criminal protective order, arising from a
series of statements made during a court hearing by
the defendant, Cody M., to the person protected by the
order, violate the constitutional protection from double
jeopardy. The Appellate Court affirmed the judgment,
rendered after a jury trial, convicting the defendant of
two counts of criminal violation of a standing criminal
protective order in violation of General Statutes § 53a-
223a,1 one count of threatening in the second degree
in violation of General Statutes (Rev. to 2015) § 53a-62
(a) (2),2 and one count of threatening in the second
degree in violation of § 53a-62 (a) (3). State v. Meadows,
185 Conn. App. 287, 290, 197 A.3d 464 (2018). We granted
the defendant’s petition for certification to appeal,3 and
the defendant now claims that the Appellate Court
incorrectly concluded that (1) his conviction of two
counts of violating a standing criminal protective order
did not violate his constitutional right against double
jeopardy, and (2) the trial court’s jury instruction cor-
rectly defined the term ‘‘harassing’’ with respect to the
penalty enhancement under § 53a-223a (c) (2). We con-
clude that the defendant’s conviction of two counts of
violating a standing criminal protective order did not
violate his right against double jeopardy and that any
possible instructional error in the trial court’s definition
of ‘‘harassing’’ was harmless, and, accordingly, we affirm
the judgment of the Appellate Court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
On May 12, 2015, the trial court, Keegan, J., issued a
standing criminal protective order against the defen-
dant, ordering that he, inter alia, ‘‘not assault, threaten,
abuse, harass, follow, interfere with . . . stalk’’ or
‘‘contact . . . in any manner, including by written,
electronic or telephone contact,’’ the victim, who is
the mother of his children. One exception to the order
permitted contact with the victim ‘‘for purposes of visi-
tation, as directed by [the] family court.’’ Subsequently,
on September 1, 2015, both the victim and the defendant
were present at a juvenile court hearing. The defendant,
who was incarcerated at the time, was brought to the
hearing and placed near the victim.
When the hearing began, the defendant tried to
engage in ‘‘small talk’’ with the victim, but she ignored
him and did not make eye contact. The victim testified
that the defendant had ‘‘whispered to me that he still
loved me and had asked me why I had a block on the
phone and that I said I would never do this to him
. . . . [W]hen I wasn’t responding to him, his tone
changed and he told me that ‘you’re going to have prob-
lems when I get home, bitch,’ and . . . I looked at him,
and he told me that he was going to fucking kill me.’’
The conversation was only as loud as a whisper, except
for the last statement, which the defendant mouthed
to the victim. The victim then told the defendant to
stop threatening her, and he responded that he was not.
The victim thought the statements were threats, and
she was afraid. At some point, an assistant attorney
general present for the hearing informed the court that
the defendant was speaking to the victim.
After the hearing ended, a judicial marshal removed
the defendant from the courtroom. Once the defendant
was outside of the courtroom, he continued to make
remarks about the victim, saying, ‘‘I’m gonna get that
bitch when I get out. . . . I’m gonna kill that fucking
bitch, I’m gonna fuck that bitch up, I’m gonna fucking
kill her.’’ Subsequently, the defendant reiterated these
statements while meeting with a social worker, also
stating that, ‘‘if he’s not with [the victim], he’s going to
make sure nobody else is with her,’’ and that, ‘‘if she
chooses not to be with him, he will beat the f’ing shit
out of her.’’ He also said ‘‘he would make her another
Tracey Morton.’’4
In the operative information,5 the state charged the
defendant with two counts of violation of a standing
criminal protective order and two counts of threatening
in the second degree.6 The case was tried to a jury,
which found the defendant guilty on all four counts,
and the trial court rendered a judgment of conviction
in accordance with the jury’s verdict.7
The defendant appealed from the judgment of convic-
tion to the Appellate Court, which affirmed the judg-
ment of conviction. State v. Meadows, supra, 185 Conn.
App. 308. With respect to the issues relevant to this
certified appeal, the Appellate Court first rejected the
defendant’s claim that his two convictions for violating
a standing criminal protective order were a double jeop-
ardy violation, concluding that each conviction was sup-
ported by a ‘‘separate and distinct [act], and it matters
not that they arose from the same conversation.’’8 Id.,
298. The Appellate Court also disagreed with the defen-
dant’s claim that the trial court improperly defined the
term ‘‘harassing conduct’’ when instructing the jury as
to the second count of violating a standing criminal
protective order, holding that the definition used was
consistent with the decision in State v. Larsen, 117
Conn. App. 202, 209 n.5, 978 A.2d 544, cert. denied, 294
Conn. 919, 984 A.2d 68 (2009). See State v. Meadows,
supra, 299–301. This certified appeal followed. See foot-
note 3 of this opinion. Additional facts and procedural
history will be set forth in the context of each claim
on appeal.
I
We begin with the defendant’s claim that his two
convictions under § 53a-223a for violations of a standing
criminal protective order violated the constitutional
prohibition against double jeopardy. The Appellate
Court’s analysis of this issue centered on the premise
that the defendant violated ‘‘two separate provisions’’
of the order; one count originated from his initial con-
tact, and the second count was based on the defendant’s
threat to the victim. See State v. Meadows, supra, 185
Conn. App. 298. The Appellate Court considered each
violation ‘‘distinct’’ and deemed its decision in State v.
Nixon, 92 Conn. App. 586, 886 A.2d 475 (2005), which
had held a series of knife stabs to be a single, continuous
act, inapposite. See State v. Meadows, supra, 297–99.
‘‘A defendant’s double jeopardy claim presents a
question of law, over which our review is plenary. . . .
The double jeopardy clause of the fifth amendment to
the United States constitution provides: [N]or shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb. The double jeopardy clause
[applies] to the states through the due process clause
of the fourteenth amendment. . . . This constitutional
guarantee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial. . . . Although the Connecticut
constitution does not include a double jeopardy provi-
sion, the due process guarantee of article first, § 9, of
our state constitution encompasses protection against
double jeopardy.’’ (Citation omitted; internal quotation
marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52
A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct.
1804, 185 L. Ed. 2d 811 (2013).
‘‘In accordance with Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), double
jeopardy claims challenging the constitutional validity
of convictions pursuant to two distinct statutory provi-
sions are traditionally analyzed by inquiring whether
each provision requires proof of a fact of which the
other does not require proof. . . . We prefer a different
form of analysis in the circumstances of this case, in
which only one statutory provision is at issue.9 The
proper double jeopardy inquiry when a defendant is
convicted of multiple violations of the same statutory
provision is whether the legislature intended to punish
the individual acts separately or to punish only the
course of action which they constitute.’’ (Citations omit-
ted; emphasis in original; footnote added; internal quo-
tation marks omitted.) State v. Garvin, 242 Conn. 296,
304, 699 A.2d 921 (1997). Put differently, we must deter-
mine the ‘‘unit of prosecution’’ intended by the legisla-
ture in enacting § 53a-223a. See Bell v. United States,
349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955)
(employing unit of prosecution analysis to determine
whether Congress intended ‘‘cumulative punishment
for each woman’’ transported in violation of Mann Act);
State v. Garvin, supra, 306–307 (legislature intended
unit of prosecution to be number of bail bonds breached
rather than number of times defendant failed to appear);
State v. Tweedy, 219 Conn. 489, 498–99, 594 A.2d. 906
(1991) (legislature intended ‘‘the course of committing
a larceny . . . as the time frame for completion of the
offense of robbery’’ (internal quotation marks omit-
ted)).
‘‘The issue, [although] essentially constitutional,
becomes one of statutory construction.’’ State v. Rawls,
198 Conn. 111, 120, 502 A.2d 374 (1985). ‘‘When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’10 (Internal quotation marks
omitted.) State v. Terwilliger, 314 Conn. 618, 653–54,
104 A.3d 638 (2014).
A
We begin our analysis by determining the requisite
unit of prosecution under § 53a-223a. The defendant
asserts that the Appellate Court incorrectly concluded
that the statutory language of § 53a-223a, specifically,
the word ‘‘involves’’ in subsection (c), clearly indicates
that the legislature intended the unit of prosecution to
be on a ‘‘transactional basis.’’ The defendant contends
that a violation of a protective order is a continuing
offense and that, because the conversation at issue in
this case lasted only for a short time, it should be viewed
as a single violation. Finally, the defendant requests
that we apply the rule of lenity to resolve any statutory
ambiguity on this point.
In response, the state argues that the text and purpose
of § 53a-223a support viewing separate violations as
distinct criminal acts, and, as a result, each distinct
contact or threat to the victim may be punished. The
state argues that a violation of a protective order is
more analogous to sexual assault, which is a separate
act crime, than kidnapping, which is a continuous act
crime. The state contended at oral argument before this
court that § 53a-223a is unambiguous and argues in its
brief that the statute clearly permits multiple convic-
tions for separate acts because, inter alia, the statutory
text does not expressly state that a violation is a contin-
uing act. The state supports this argument by con-
trasting § 53a-223a with a related statute, General Stat-
utes § 53a-222, which governs violations of conditions
of release and includes language specifically indicating
that a violation is a continuing offense. See General
Statutes § 53a-222 (a) (‘‘intentionally violates one or
more of the imposed conditions of release’’). We agree
with the state and conclude that the defendant’s multi-
ple convictions in this case did not violate his double
jeopardy rights.
We begin with the language of § 53a-223a, which pro-
vides in relevant part: ‘‘(a) A person is guilty of criminal
violation of a standing criminal protective order when
. . . such person violates such order.
***
‘‘(c) Criminal violation of a standing criminal protec-
tive order is a class D felony, except that any violation
that involves (1) imposing any restraint upon the person
or liberty of a person in violation of the standing crimi-
nal protective order, or (2) threatening, harassing,
assaulting, molesting, sexually assaulting or attacking
a person in violation of the standing criminal protective
order is a class C felony.’’
The plain language of the statute does not define
when a violation begins and ends; instead, it states only
that one is guilty if ‘‘such person violates such order.’’
General Statutes § 53a-223a (a). The statute can reason-
ably be read to prohibit either a course of conduct
or discrete acts, each of which may be sufficient to
constitute a violation. As a result, we must look outside
the statutory text for indicators of legislative intent.
When § 53a-223a is construed in light of similar, sur-
rounding statutes, it is apparent the legislature purpose-
fully omitted language that was included in those provi-
sions. We are cognizant of ‘‘the principle that the
legislature is always presumed to have created a harmo-
nious and consistent body of law . . . . [T]his tenet of
statutory construction . . . requires us to read statutes
together when they relate to the same subject matter
. . . . Accordingly, [i]n determining the meaning of a
statute . . . we look not only at the provision at issue,
but also to the broader statutory scheme to ensure the
coherency of our construction. . . . Where a statute,
with reference to one subject contains a given provi-
sion, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed. . . . That
tenet of statutory construction is well grounded
because [t]he General Assembly is always presumed to
know all the existing statutes and the effect that its
action or [nonaction] will have upon any one of them.’’
(Internal quotation marks omitted.) State v. Fernando
A., 294 Conn. 1, 21, 981 A.2d 427 (2009). In contrast,
§ 53a-222 follows a similar structure to § 53a-223a but
provides in relevant part: ‘‘(a) A person is guilty of
violation of conditions of release in the first degree
when, while charged with the commission of a felony,
such person is released . . . and intentionally violates
one or more of the imposed conditions of release. . . .’’
(Emphasis added.) This ‘‘one or more’’ language in
§ 53a-222 (a) demonstrates that, regardless of whether
a defendant violates the conditions of release once or
more than once, he nevertheless is guilty of only one
count. The absence of such language in § 53a-223a indi-
cates that the legislature did not have a similar intent
with respect to a standing criminal protective order
and, as a result, supports a reading permitting violations
of multiple provisions of an order to support multiple
convictions under the statute.
We disagree with the defendant’s construction of
§ 53a-223a, which does not resolve the ambiguity in the
statute. Specifically, the defendant relies on subsection
(c) of the statute and contends that the legislature’s
use of ‘‘the open-ended term ‘involve’ thereby impl[ies]
that the occurrence or transaction constituting the vio-
lation of the protective order can be broader than the
acts in the proscribed list.’’ We disagree. The word
‘‘involves’’ in subsection (c) is irrelevant to determining
the unit of prosecution because it does not, in the first
instance, define whether a violation, as provided in
subsection (a), is a discrete act or a continuing course
of conduct. Simply because a violation involves threat-
ening does not, under the statutory text, preclude pun-
ishment for additional violations because subsection
(c) functions only as a sentence enhancement for cer-
tain types of violations that are made punishable under
subsection (a), namely, those implicating harassing or
threatening conduct. In the absence of explication of
what it means to ‘‘[violate] such order’’ in subsection
(a) itself, the word ‘‘involves’’ in subsection (c) provides
no meaningful guidance.
Additionally, under the defendant’s interpretation,
persons who violate an order repeatedly would be
shielded from prosecution because any violation would
be continuous. See State v. Snook, 210 Conn. 244, 262,
555 A.2d 390 (‘‘If we adopted the defendant’s reasoning,
the commission of one act likely to impair the health
and morals of a minor would insulate the perpetrator
from further criminal liability for any additional acts of
the same character perpetrated on the same minor in
subsequent encounters. Such a result defies rational-
ity.’’), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L.
Ed. 2d 603 (1989); In re Walker v. Walker, 86 N.Y.2d
624, 628, 658 N.E.2d 1025, 635 N.Y.S.2d 152 (1995)
(‘‘Under [the] appellant’s argument, a violator already
penalized for [wilfully] failing to obey an order of pro-
tection would garner immunity from further official
sanction for persistent, separate violations . . . . Such
an approach is in no way compelled or warranted by the
governing statutes, sentencing principles or reasonable
statutory analysis. Its incongruous and untenable result
would also constitute an invitation to violate and no
incentive to obey.’’ (Citation omitted.)).
The result portended by the defendant’s interpreta-
tion of § 53a-223a, which suggests that violations of that
statute are continuous in nature, is inconsistent with the
purpose of the statute, as demonstrated by its legislative
history. The legislature enacted § 53a-223a as No. 96-
228 of the 1996 Public Acts, entitled ‘‘An Act Concerning
Domestic Violence.’’ In this act, the legislature created
the standing criminal restraining order11 in response
to the well-known tragedy involving Tracey Thurman
Motuzick, who had been abused by her ex-husband
after his release from jail in 1996. See 39 H.R. Proc.,
Pt. 10, 1996 Sess., p. 3326, remarks of Representative
Ellen Scalettar. In response to this notorious case, the
legislature created a new type of restraining order that
judges could issue at a defendant’s sentencing in a fam-
ily violence case. Id. The bill’s leading proponent, Repre-
sentative Scalettar, stated that the bill ‘‘imposes a signif-
icant penalty on those who violate the order. It would
be a [c]lass D [f]elony. . . . [T]his bill will give to vic-
tims of domestic violence . . . increased protection
and increased peace of mind, which they well
deserve.’’12 Id., p. 3327. Under the defendant’s proposed
interpretation, a defendant may contact a victim and
later assault her, each in violation of an order, but only
be convicted of one count. Such a result would be
inconsistent with the legislature’s desire to protect vic-
tims by increasing the penalty for violating protective
orders, suggesting that § 53a-223a should be read to
permit criminal liability for each discrete act in violation
of an order.13 As the unit of prosecution is no longer
ambiguous after considering the surrounding statutory
scheme and legislative history, we decline to apply the
rule of lenity, as urged by the defendant. See, e.g., State
v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004)
(‘‘courts do not apply the rule of lenity unless a reason-
able doubt persists about a statute’s intended scope
even after resort to the language and structure, legisla-
tive history, and motivating policies of the statute’’
(emphasis in original; internal quotation marks omit-
ted)).
Numerous other jurisdictions consider protective
order violations to be discrete acts. For example, in
Jacobs v. State, 272 So. 3d 838 (Fla. App. 2019), review
denied, Florida Supreme Court, Docket No. SC19-1008
(November 22, 2019), the Florida District Court of
Appeal affirmed the defendant’s conviction of two
counts of violating a stalking injunction after he
approached and threatened the victim. Id., 839–40. The
court held his two violations to be ‘‘distinct criminal
acts,’’ namely, one when he approached the victim and
a second when he contacted her. Id., 841. The fact
that the acts occurred nearly simultaneously was of
no consequence because ‘‘[e]ach act is of a separate
character and type, and each is born of a separate
impulse.’’ Id., 842; see also Triggs v. State, 382 Md. 27,
50, 852 A.2d 114 (2004) (upholding defendant’s convic-
tion on eighteen counts because ‘‘each separate [tele-
phone] call constitutes contact in violation of a protec-
tive order’’); Commonwealth v. Housen, 83 Mass. App.
174, 177, 982 N.E.2d 66 (permitting multiple convictions
for violations of protective order for separate contacts
with victim and her children), review denied, 465 Mass.
1105, 989 N.E.2d 898 (2013); State v. Strong, 380 Mont.
471, 478, 356 P.3d 1078 (2015) (upholding trial court’s
denial of defendant’s motion to dismiss three of four
counts of violating order of protection arising from four
telephone calls made over seven hours); State v. McGee,
135 N.M. 73, 78–79, 84 P.3d 690 (2003) (conviction of
several counts of violating order of protection, when
four telephone calls were made within minutes of each
other, did not violate double jeopardy), cert. denied,
135 N.M. 160, 85 P.3d 802 (2004); In re Walker v. Walker,
supra, 86 N.Y.2d 626, 630 (upholding defendant’s convic-
tions for three violations of a protective order when
defendant sent victim three letters); Hill v. Randolph, 24
A.3d 866, 871–73 (Pa. Super. 2011) (permitting multiple
contempt counts for violations of protective order when
defendant entered victim’s home and assaulted victim);
Cable v. Clemmons, 36 S.W.3d 39, 43 (Tenn. 2001)
(upholding three of defendant’s six convictions for
criminal contempt for violating protective order in one
interaction when defendant ‘‘abused [the victim] physi-
cally; produced a knife and threatened to kill her; and
then vandalized [the victim’s] personal property’’); State
v. Medina, Docket No. 48053-1-II, 2016 WL 6599649, *4
(Wn. App. November 8, 2016) (decision without pub-
lished opinion, 196 Wn. App. 1054) (upholding seven
counts for violation of court order for multiple text
messages sent in one day because ‘‘[e]ach time [the
defendant] messaged [the victim], he took the affirma-
tive action of picking up the phone, typing a message
to [the victim], and pressing ‘send’ ’’), review denied,
187 Wn. 2d 1028, 391 P.3d 448 (2017); State v. Brown,
159 Wn. App. 1, 11, 248 P.3d 518 (2010) (‘‘the unit of
prosecution is each single violation of a no-contact
order’’), review denied, 171 Wn. 2d 1015, 249 P.3d
1029 (2011).
B
Having determined that the legislature permitted con-
victions for multiple distinct acts that constitute sepa-
rate violations of § 53a-223a, we must next consider
whether the defendant’s statements in this case consti-
tuted a single act or multiple acts. According to the
defendant, a violation of a protective order is analogous
to the knife assaults in State v. Nixon, supra, 92 Conn.
App. 589, which were held to be a single, continuous
act. The defendant argues that the temporal closeness
of the statements is determinative when deciding
whether the violations should be considered one act or
two. In response, the state contends that the jury could
have reasonably found two distinct acts because the
defendant violated two distinct conditions of the protec-
tive order and each was a completed offense. Addition-
ally, the state argues that the two acts were separated
by an ‘‘intervening event,’’ that is, when the victim
ignored the defendant. We agree with the state and
conclude that each conviction was supported by a sepa-
rate act.
‘‘[D]istinct repetitions of a prohibited act, however
closely they may follow each other . . . may be pun-
ished as separate crimes without offending the double
jeopardy clause. . . . The same transaction, in other
words, may constitute separate and distinct crimes
where it is susceptible of separation into parts, each
of which in itself constitutes a completed offense. . . .
[T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Citations omitted; internal
quotation marks omitted.) State v. Miranda, 260 Conn.
93, 122–23, 794 A.2d 506, cert. denied, 537 U.S. 902, 123
S. Ct. 224, 154 L. Ed. 2d 175 (2002).
‘‘We look to the following factors to determine
whether, on this record, the defendant engaged in dis-
tinct courses of conduct and, therefore, separately pun-
ishable [acts]: (1) the amount of time separating the
acts; (2) whether the acts occurred at different loca-
tions; (3) the defendant’s intent or motivation behind
the acts; and (4) whether any intervening events
occurred between the acts, such that the defendant
had the opportunity to reconsider his actions.’’ State v.
Ruiz-Pacheco, 336 Conn. 219, 241, 244 A.3d 908 (2020).
We conclude that the defendant’s statements consti-
tute two distinct acts because the victim’s resistance,
effectuated by her silence, was an intervening event
causing the defendant to escalate his behavior. The
defendant’s initial statement, in which he explained that
he loved the victim and inquired as to why she had a
block on her phone, constituted a completed offense,
namely, contacting the victim in violation of that provi-
sion of the order. In contrast, the second set of state-
ments occurred only after ‘‘[the victim] wasn’t
responding to him’’ and ‘‘his tone [had] changed.’’ The
defendant stated that the victim was ‘‘going to have
problems when [he got] home, bitch.’’ The victim then
‘‘looked at him, and he told [her] that he was going
to fucking kill [her].’’ What separates the defendant’s
statements into two criminal acts is the defendant’s
clear escalation, showing a ‘‘fresh impulse’’ to move
from nonthreatening conversation to threatening con-
versation.14 State v. Schoonover, 281 Kan. 453, 497, 133
P.3d 48 (2006). Put differently, the statements support-
ing count one are a nonthreatening contact, but, upon
realizing the victim was not responding, the defendant
effectuated a different purpose and made a threatening
statement to the victim, supporting a second, distinct
count. This renders this case distinguishable from State
v. Nixon, supra, 92 Conn. App. 586, on which the defen-
dant relies. Compare id., 591 (‘‘the defendant twice
stabbed the same victim, at the same place and during
the same time period, with the same instrument, with
the same common intent to inflict physical injury’’),
with State v. Brown, 299 Conn. 640, 653–54, 11 A.3d
663 (2011) (first act of attempted robbery ended after
‘‘the victim slapped the gun away . . . then escaped,’’
and second act began when defendant chased and shot
victim). This escalation, after the victim’s intervening
resistance, separates the statements into discrete acts.
But see Whylie v. United States, 98 A.3d 156, 165 (D.C.
2014) (one week break in calls by defendant does not
necessarily create ‘‘fresh impulse’’).
Although the defendant made his statements at two
points close in time, the criminal acts nevertheless are
distinct. ‘‘It is not dispositive in a double jeopardy analy-
sis that multiple offenses were committed in a short
time span and during a course of conduct that victim-
ized a single person.’’ State v. Urbanowski, 163 Conn.
App. 377, 393, 136 A.3d 236 (2016), aff’d, 327 Conn. 169,
172 A.3d 201 (2017); see also State v. D’Antonio, 274
Conn. 658, 717, 877 A.2d 696 (2005) (conviction of two
counts of interference with officer stemming from acts
toward different officers does not violate double jeop-
ardy, even though acts were ‘‘within minutes of each
other’’); State v. Scott, 270 Conn. 92, 100, 851 A.2d 291(2004) (conviction of two counts of sexual assault was
permissible, ‘‘irrespective of the brief period of time
separating them’’), cert. denied, 544 U.S. 987, 125 S. Ct.
1861, 161 L. Ed. 2d 746 (2005); State v. Lytell, 206 Conn.
657, 667, 539 A.2d 133 (1988) (defendant’s actions
toward two victims supported conviction of two counts
of robbery, ‘‘irrespective of whether the robbery was
spatially linked with another robbery’’); State v. Mar-
sala, 93 Conn. App. 582, 589, 889 A.2d 943 (each tele-
phone call violates § 53a-183 (a), ‘‘regardless of how
close in time the calls were made’’), cert. denied, 278
Conn. 902, 896 A.2d 105 (2006). Accordingly, we con-
clude that the defendant’s two convictions for violation
of a standing criminal protective order did not violate
the constitutional protection against double jeopardy.
II
The defendant next claims that the Appellate Court
improperly upheld the trial court’s jury instruction with
respect to the second count of violation of a standing
criminal protective order because it incorrectly defined
‘‘harassing’’ as ‘‘to trouble, worry, or torment’’ for pur-
poses of the penalty enhancement under § 53a-223a (c).
The defendant asserts that (1) harassment involves
‘‘persistence,’’ which is absent from the trial court’s
definition, (2) the legislature did not intend ‘‘harassing’’
to mean ‘‘troubling’’ or ‘‘worrying,’’ (3) the lower stan-
dard utilized by the trial court will encompass virtually
any contact in violation of a protective order because
defendants may easily ‘‘trouble’’ or ‘‘worry’’ their vic-
tims, and (4) the Appellate Court incorrectly relied on
other cases utilizing these jury instructions. In response,
the state argues the trial court’s definition was proper,
and, in any event, any error was harmless beyond a
reasonable doubt. We agree with the state and conclude
that any error in the trial court’s instruction was harm-
less.15
Because the defendant did not object to the jury
instructions at trial; State v. Meadows, supra, 185 Conn.
App. 299;16 we review his claim pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015). ‘‘Golding provides that a defendant
may prevail on an unpreserved claim when (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 . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Sawyer, 335 Conn. 29, 49–50, 225 A.3d 668(2020).
For purposes of this Golding analysis, we assume
that the trial court’s instructional definition of harassing
was improper, but we nevertheless conclude that,
because the jury found the defendant guilty of threaten-
ing as charged in the third count, the jury necessarily
found him guilty of threatening the victim as charged
in connection with the second count, as the charges
were based on the same underlying conduct. As such,
any error as to the definition of ‘‘harassing’’ was harm-
less.17 Under § 53a-223a (c) (2), a defendant is guilty of
a class C felony for criminal violation of a protective
order for ‘‘threatening, harassing, assaulting, molesting,
sexually assaulting or attacking a person in violation
of the standing criminal protective order . . . .’’ In the
present case, the trial court instructed the jury on count
two in the following manner: ‘‘The defendant is charged
in count . . . two with criminal violation of a standing
criminal protective order. . . . For you to find the
defendant guilty of this charge, the state must prove
the following elements beyond a reasonable doubt. . . .
[T]he first element is that a court issued a standing
criminal protective order against the defendant. . . .
The second element is that the defendant violated a
condition of the order. To violate a condition means to
act in disregard of or to go against the condition. In this
case, the state alleges that threatening or harassing
the [victim] was forbidden by the order, and you have
the order. As far as what’s the definition of a threat,
use the same definition that I’m going to give you on
threatening.18 As far as what’s harassing, harassing is
to trouble, worry, or torment; that’s the legal definition.
Trouble, worry, or torment.’’ (Emphasis added; footnote
added.)
In Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530,
172 L. Ed. 2d 388 (2008), the United States Supreme
Court held that, when a jury is instructed on multiple
theories of guilt and one is improper, the error may
be reviewed for harmlessness.19 ‘‘An instructional error
arising in the context of multiple theories of guilt no
more vitiates all the jury’s findings than does omission
or misstatement of an element of the offense when only
one theory is submitted.’’ (Emphasis omitted.) Id. When
reviewing instructional errors based on multiple theo-
ries of guilt, ‘‘a reviewing court finding such error
should ask whether the flaw in the instructions ‘had
substantial and injurious effect or influence in determin-
ing the jury’s verdict.’ ’’ Id., 58, quoting Brecht v. Abra-
hamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993); see also Skilling v. United States, 561
U.S. 358, 414 n.46, 130 S. Ct. 2896, 177 L. Ed. 2d 619(2010) (Hedgpeth’s harmless error analysis ‘‘applies
equally to cases on direct appeal’’).
Federal courts of appeals applying this harmlessness
standard to cases involving multiple theories of guilt
have required varying degrees of proof of harm.20 See
Sorich v. United States, 709 F.3d 670, 674 (7th Cir. 2013)
(‘‘[w]e have described the [harmless error] inquiry . . .
as a question of whether the trial evidence was such
that the jury must have convicted the petitioners on
both [alternative] theories’’), cert. denied, 571 U.S. 1131,
134 S. Ct. 952, 187 L. Ed. 2d 786 (2014); United States
v. Jefferson, 674 F.3d 332, 361 (4th Cir.) (‘‘if the evidence
that the jury necessarily credited in order to convict
the defendant under the instructions given . . . is such
that the jury must have convicted the defendant on the
legally adequate ground in addition to or instead of
the legally inadequate ground, the conviction may be
affirmed’’ (internal quotation marks omitted)), cert.
denied, 568 U.S. 1041, 133 S. Ct. 648, 184 L. Ed. 2d 482(2012); United States v. Skilling, 638 F.3d 480, 482 (5th
Cir. 2011) (discussing how one way to show ‘‘an [alter-
native theory] error is harmless’’ is ‘‘if the jury, in con-
victing on an invalid theory of guilt, necessarily found
facts establishing guilt on a valid theory’’), cert. denied,
566 U.S. 956, 132 S. Ct. 1905, 182 L. Ed. 2d 807 (2012);
see also United States v. McKye, 734 F.3d 1104, 1110 n.6
(10th Cir. 2013) (not relying on Hedgpeth but concluding
that ‘‘the submission of an alternative theory for making
[a] finding cannot sustain the verdict unless it is possible
to determine the verdict rested on the valid ground’’
or ‘‘the jury necessarily made the findings required to
support a conviction on the valid ground’’ (internal quo-
tation marks omitted)). Nevertheless, we are persuaded
by the common thread in several of these cases that
permits a finding of harmlessness if the jury necessarily
found facts to support the conviction on a valid theory.
In the present case, the state charged the defendant
with violating a criminal protective order under two
alternative theories, threatening or harassing the victim.
The defendant does not raise an instructional error
claim as to the trial court’s instruction on threatening.21
As the jury found the defendant guilty on count three
for threatening, the jury necessarily found that the
defendant threatened the victim in violation of the crim-
inal protective order in connection with count two.22
See United States v. Jefferson, supra, 674 F.3d 362–63
(considering jury’s findings on other counts in harm-
lessness analysis); United States v. Wilkes, 662 F.3d
524, 544 (9th Cir. 2011) (‘‘[T]he jury’s guilty verdict on
the separate substantive count of bribery [of a public
official] in violation of 18 U.S.C. § 201 confirms beyond
any reasonable doubt that the jury would have con-
victed [the defendant] of honest services fraud . . . .
Any error concerning the jury instruction was harm-
less.’’), cert. denied, 566 U.S. 981, 132 S. Ct. 2119, 182
L. Ed. 2d 881 (2012). In the present case, it is ‘‘clear
beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error . . . .’’
Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999). As a result, we conclude that
any instructional error as to count two was harmless
under the fourth prong of Golding. See, e.g., State v.
Peeler, 271 Conn. 338, 399, 857 A.2d 808 (2004) (‘‘we
need not reach the merits of the defendant’s constitu-
tional claims because, even if we were to assume that
the defendant’s claims are valid, the state has estab-
lished beyond a reasonable doubt that any impropriety
was harmless’’), cert. denied, 546 U.S. 845, 126 S.C. 94,
163 L. Ed. 2d 110 (2005).
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, D’AURIA and MULLINS,
Js., concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** September 21, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-223a provides: ‘‘(a) A person is guilty of criminal
violation of a standing criminal protective order when an order issued
pursuant to subsection (a) of section 53a-40e has been issued against such
person, and such person violates such order.
‘‘(b) No person who is listed as a protected person in such standing
criminal protective order may be criminally liable for (1) soliciting,
requesting, commanding, importuning or intentionally aiding in the violation
of the standing criminal protective order pursuant to subsection (a) of
section 53a-8, or (2) conspiracy to violate such standing criminal protective
order pursuant to section 53a-48.
‘‘(c) Criminal violation of a standing criminal protective order is a class
D felony, except that any violation that involves (1) imposing any restraint
upon the person or liberty of a person in violation of the standing criminal
protective order, or (2) threatening, harassing, assaulting, molesting, sexu-
ally assaulting or attacking a person in violation of the standing criminal
protective order is a class C felony.’’
2
As the Appellate Court aptly noted, ‘‘[No.] 16-67 of the 2016 Public
Acts . . . amended subsection (a) of § 53a-62 by redesignating the existing
subdivisions (2) and (3) as subdivision (2) (A) and (B) without modifying
the language of that provision. We refer to the 2015 revision of § 53a-62 (a)
(3) because that is the statute under which the defendant was charged
and convicted.’’ State v. Meadows, 185 Conn. App. 287, 290 n.1, 197 A.3d
464 (2018).
3
We granted the defendant’s petition for certification to appeal, limited
to the following issues: ‘‘Did the Appellate Court [correctly] conclude that
(1) the defendant’s constitutional right to be free from double jeopardy was
not violated when he was convicted of two counts of violation of a standing
criminal protective order on the basis of different words spoken to the
protected person during a single, brief, and uninterrupted statement, and
(2) the jury was properly instructed that to ‘harass’ means to ‘trouble, worry
or torment’ for purposes of an enhanced penalty for violating a standing
criminal protective order?’’ State v. Meadows, 330 Conn. 947, 947–48, 196
A.3d 327 (2018).
4
It appears that the defendant’s reference to ‘‘Tracey Morton’’ is a misstate-
ment of the name of the victim in a high profile case of family violence.
See part I A of this decision.
5
The state initially charged the defendant with one count of violation of
a standing criminal protective order, threatening in the second degree, and
disorderly conduct in violation of General Statutes § 53a-182.
6
Count one of the operative information provides: ‘‘In the Superior Court
of Connecticut, New Haven judicial district, geographical area twenty-three,
Assistant State’s Attorney Laura DeLeo accuses the defendant, CODY [M.],
of VIOLATION OF A STANDING CRIMINAL PROTECTIVE ORDER, and
charges that, on or about September 1, 2015, at or about the location of
239 Whalley Avenue, in the city of New Haven, CODY [M.], did violate the
terms of a standing criminal protective order that had issued against him,
to wit: by having contact with the protected person, in violation of [§]
53a-223a.’’
Count two provides: ‘‘In the Superior Court of Connecticut, New Haven
judicial district, geographical area twenty-three, Assistant State’s Attorney
Laura DeLeo accuses the defendant, CODY [M.], of VIOLATION OF A
STANDING CRIMINAL PROTECTIVE ORDER, and charges that, on or about
September 1, 2015, at or about the location of 239 Whalley Avenue, in the
city of New Haven, CODY [M.], did violate the terms of a standing criminal
protective order that had issued against him, to wit: by threatening and
harassing the protected person, in violation of [§] 53a-223a.’’
7
The trial court sentenced the defendant to a total effective sentence of
eight years imprisonment with seven years of special parole.
8
Although the defendant did not preserve this double jeopardy claim at
trial, the Appellate Court considered it pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). See State v. Meadows, supra, 185
Conn. App. 293–94.
9
For an example of a case that reviews a similar issue but analyzes double
jeopardy under separate statutory provisions, see State v. Culver, 97 Conn.
App. 332, 338–39 n.7, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d
961 (2006).
10
‘‘Of course, [w]e have long held that [c]riminal statutes are not to be
read more broadly than their language plainly requires . . . . Moreover, [a]
penal statute must be construed strictly against the state and liberally in
favor of the accused. . . . [A]mbiguities are ordinarily to be resolved in
favor of the defendant. . . . In the interpretation of statutory provisions
[however] the application of common sense to the language is not to be
excluded. . . . Thus, [e]ven applying the view that a penal statute should
be strictly construed, the words of a statute are to be construed with common
sense and according to the commonly approved usage of the language.’’
(Citations omitted; internal quotation marks omitted.) State v. Love, 246
Conn. 402, 412 n.13, 717 A.2d 670 (1998).
11
This language was later amended to read ‘‘standing criminal protective
order . . . .’’ Public Acts 2010, No. 10-144, § 6.
12
The legislative history also indicates that the legislature was aware of
the statute’s ambiguity at the time of its enactment. Representative Arthur
J. O’Neill discussed this issue: ‘‘[T]he way it reads, it seems to say that a
person is guilty of a violation if a person violates the order. . . . [I]s that
existing language? It seems a little circular to me . . . .’’ (Emphasis added.)
39 H.R. Proc., supra, p. 3341. Representative Scalettar responded: ‘‘I believe
that is existing language . . . . It would either be [General Statutes § 46b-
38c] or the civil restraining orders statute.’’ Id. Earlier in the discussion,
Representative Scalettar explained that ‘‘[t]his is the same language as used
in [§] 46b-38c (e) with respect to criminal protective orders and it would
have the same meaning as that statute has been interpreted.’’ (Emphasis
added.) Id., p. 3340. The statutory language in civil statutes does not, how-
ever, provide assistance when determining the unit of prosecution. Because
of the importance of this issue, the legislature may want to consider the
consistency of § 53a-223a with the surrounding penal statutes.
13
Indeed, separate punishment for each act that constitutes a violation
of a protective order is responsive to the nature of domestic violence
offenses. ‘‘An abuser’s recurrent exertion of power and control over the
survivor pervades the survivor’s experience, and without effective interven-
tion, battering typically escalates in frequency and severity over time. . . .
Intimate partner abuse rarely consists only of a single, isolated event; instead,
the abusive partner more commonly engages in an ongoing process of
violence and control.’’ (Emphasis added; footnotes omitted.) J. Stoever,
‘‘Enjoining Abuse: The Case for Indefinite Domestic Violence Protection
Orders,’’ 67 Vand. L. Rev. 1015, 1023–24 (2014).
14
At oral argument before this court, the state asserted that, if the defen-
dant had said only ‘‘I’m going to kill you,’’ that would be one distinct act
supporting one count of violating a protective order, even though it violated
two conditions, namely, a contact and a threat. According to the state,
charging the defendant in this case with two counts without running afoul of
double jeopardy protections ‘‘depends on some separation in time, however
brief.’’ Therefore, the state concedes the limits on its ability to charge a
defendant for protective order violations. In other words, if the violations
in this case arose from a single act, such as a violation for contacting the
victim and a violation for threatening her, as presented by the ‘‘I’m going
to kill you’’ hypothetical, there could be only one charge.
15
We note that the defendant contends that (1) the claimed instructional
error was not harmless beyond a reasonable doubt, and (2) contrary to the
United States Supreme Court’s decision in Neder v. United States, 527 U.S.
1, 15–17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the Connecticut constitution
does not permit harmless error review if a jury instruction incorrectly states
the elements of the crime. For its part, the state contends that this court
should not consider the defendant’s state constitutional claim because the
argument is inapplicable to this case and the claim fails on the merits.
16
Although the defendant did not object to the instructions at trial or
expressly seek review under State v. Golding, supra, 213 Conn. 239–40, the
Appellate Court extended review under State v. Elson, 311 Conn. 726, 754–55,
91 A.3d 862 (2014), because the claim was one of ‘‘constitutional magnitude.’’
State v. Meadows, supra, 185 Conn. App. 299. We note that preservation
and reviewability are not at issue in this certified appeal, and we consider
the defendant’s claim accordingly.
17
The defendant argues that the state abandoned the harmless error analy-
sis by failing to brief it below. Specifically, the defendant argues that the
state briefed only that the instructional error was waived under State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), and plain error. The state
counters that it essentially briefed harmlessness below by arguing ‘‘the
absence of ‘manifest injustice’ under the plain error doctrine.’’ We agree
with the state.
We recognize that the state bears the burden of establishing harmlessness.
See, e.g., State v. Peeler, 271 Conn. 338, 384, 857 A.2d 808 (2004) (‘‘[i]f the
claim is of constitutional magnitude, the state has the burden of proving
the constitutional error was harmless beyond a reasonable doubt’’ (internal
quotation marks omitted)), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.
Ed. 2d 110 (2005). Because this is the state’s burden, the Appellate Court
has declined to reach harmlessness when the state has failed to argue the
issue on appeal. See, e.g., State v. Liam M., 176 Conn. App. 807, 824 n.14,
172 A.3d 243, cert. denied, 327 Conn. 978, 174 A.3d 196 (2017); State v. Perez,
147 Conn. App. 53, 124, 80 A.3d 103 (2013), aff’d, 322 Conn. 118, 139 A.3d
654 (2016).
In the present case, however, the state has sufficiently asserted harm-
lessness below to merit our review. First, the defendant did not clearly brief
either plain error or Golding review in his initial brief to the Appellate Court.
The state, therefore, could not be sure under what standard the defendant
was proceeding. Second, the state’s argument asserting that there was no
manifest injustice with respect to plain error implicitly incorporated a harm-
less error analysis. As such, we will proceed to analyze harmlessness in this
certified appeal.
18
With respect to the third count, charging threatening in violation of
§ 53a-62, the trial court instructed: ‘‘A threat can . . . be punishable [only]
when it is a true threat, that is, a threat that a reasonable person would
understand is a serious expression of an intent to harm or assault and not
mere puffery, bluster, jest, or hyperbole, or a—and then you see the little
arrow up there, I added something—or a spontaneous act of frustration. In
determining whether the threat is a true threat, consider the particular
factual context in which the allegations—in which the allegedly threatening
conduct occurred, which could include the reaction of the person allegedly
being threatened and the defendant’s conduct before and after the alleged
threatening conduct.’’
19
The defendant contends that the harmlessness rule in Neder v. United
States, 527 U.S. 1, 15–17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), guides
the analysis in the present case. See id., 17 (‘‘[when] a reviewing court
concludes beyond a reasonable doubt that the omitted element was uncon-
tested and supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error, the erroneous instruction is
properly found to be harmless’’). We disagree. Although the court in Hedg-
peth v. Pulido, supra, 555 U.S. 57, relied on Neder to extend harmlessness
to a multiple theories of guilt case, which was not at issue in Neder, it
indicated that the ‘‘substantial and injurious effect’’ standard applied rather
than the uncontested element and overwhelming evidence analysis used in
Neder. Id., 61–62. For this reason, we do not reach the defendant’s claim
that the Connecticut constitution does not permit harmless error review of
element instructional errors or the issue of ‘‘whether [this court should]
adopt the controversial Neder rule as a state constitutional matter’’ under
State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992).
20
‘‘[Hedgpeth] requires a reviewing court to determine whether the rele-
vant error ‘had substantial and injurious effect or influence in determining
the jury’s verdict.’ However, the circuits are divided in their interpretation
of this standard. Some [federal courts of appeals] have interpreted the
rule as imposing a less demanding standard on the defendant-appellant to
establish grounds for reversal, merely requiring it to be shown, for example,
that the jury did not necessarily make the findings to rely on the valid theory
of guilt. Other [courts], however, impose a more demanding standard, for
example, finding an error harmless unless the defendant-appellant can show
not only that the jury did not necessarily rely on the valid theory of guilt,
but also had evidence that could rationally lead to an acquittal on the basis
of the valid theory.’’ E. Khalek, Note, ‘‘Searching for a Harmless Alternative:
Applying the Harmless Error Standard to Alternative Theory Jury Instruc-
tions,’’ 83 Fordham L. Rev. 295, 295–96 (2014).
21
The defendant does argue that there was a limiting instruction in place
that restricted the jury on the evidence it could consider under counts three
and four, so the jury could not have relied on the same evidence for each
count. This is inconsistent with the record. The trial court provided several
limiting instructions, including one that limited what evidence could be
considered under each count. But this instruction actually provided that
evidence regarding certain statements made by the defendant should be
considered under the first two counts. As a result, there was less evidence
to prove intent in connection with the third and fourth counts, and the
limiting instruction would not affect the jury’s verdict on these counts.
The court instructed the jury, after hearing evidence on the May hearing
at which the protective order was put in place, to limit the use of certain
statements made by the defendant. Initially, the court limited the statements
in the following manner: ‘‘[The defendant’s] statements in part are offered
as circumstantial evidence of what his mental state might’ve been on Septem-
ber 1 with regard to count three, which is a specific intent crime, and
count four, which—in which he’s charged with uttering a threat with—with
reckless disregard of the consequences that might occur, and I’ll explain
further in my final instructions, okay?’’ Then, the court corrected its original
instruction and stated: ‘‘I said the statements of—recorded on May 12 were
admitted—the statements of the defendant were recorded for a limited
purpose, and I said [that] they’re offered to show his intent with regard to
the threatening. I misspoke there, and I’ll go through these all again, and
I’ll have a list. Actually, they’re offered with regard to [the defendant’s]
intent on the violation of the standing criminal restraining order counts and
not the threatening, okay?’’
22
In a statement before the court and outside the presence of the jury,
defense counsel conceded that the factual basis for count three is incorpo-
rated into count two. Defense counsel stated: ‘‘So, the proposed limiting
instruction that I am asking for is that, if you find beyond a reasonable
doubt [that] the defendant is guilty of threatening in the second degree as
alleged in count three of the information, you may use that finding when
determining whether the defendant is also guilty beyond a reasonable doubt
of committing the crime of violating the standing criminal restraining order,
as alleged in count two of the information.
***
‘‘[The] defense cannot argue and would concede that . . . [count] three
is incorporated into count . . . two and, therefore, could be a basis of
this violation.’’ (Emphasis added.)