State v. Sabato , 321 Conn. 729 ( 2016 )

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STATE OF CONNECTICUT v. STEPHEN M. SABATO
(SC 19406)
(SC 19407)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued December 8, 2015—officially released June 28, 2016
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Stephen J.
Sedensky III, state’s attorney, and Sean P. McGuinness,
assistant state’s attorney, for the appellant in Docket
No. SC 19406 and the appellee in Docket No. SC
19407 (state).
Glenn W. Falk, assigned counsel, with whom, on the
brief, was Victoria R. Pasculli, law student intern, for
the appellee in Docket No. SC 19406 and the appellant
in Docket No. SC 19407 (defendant).
Opinion
PALMER, J. A jury found the defendant, Stephen M.
Sabato, guilty of attempt to interfere with an officer in
violation of General Statutes §§ 53a-167a (a)1 and 53a-
49 (a) (2),2 and intimidating a witness in violation of
General Statutes § 53a-151a (a) (1).3 The defendant’s
conviction of attempt to interfere with an officer was
predicated on a text message that the defendant had
sent to a friend instructing him not to cooperate with
police officers who were investigating the defendant’s
involvement in the theft of a cell phone; the conviction
of intimidating a witness was predicated on a series of
threatening messages that the defendant had sent to
the same friend through Facebook, an online social
networking service, after learning that he had cooper-
ated with the police about the cell phone theft. The
Appellate Court affirmed the defendant’s conviction of
intimidating a witness notwithstanding the defendant’s
claim that the evidence was insufficient to support his
conviction of that offense. State v. Sabato, 152 Conn.
App. 590, 597, 600, 98 A.3d 910 (2014). The Appellate
Court reversed the defendant’s conviction of attempt
to interfere with an officer, however, after concluding
that, under State v. Williams, 205 Conn. 456, 534 A.2d
230 (1987), fighting words4 are the only form of speech
proscribed by § 53a-167a, and the defendant’s text mes-
sage contained no such language. State v. Sabato, supra,
595–96, 600. We granted the state’s petition for certifica-
tion to appeal on three issues, one of which is whether
this court should ‘‘modify State v. Williams, [supra,
456], to proscribe not only fighting words, but also true
threats5 and other categories of unprotected speech
. . . .’’6 (Footnote added; internal quotation marks
omitted.) State v. Sabato, 314 Conn. 938, 102 A.3d 1114
(2014). We granted the defendant’s petition for certifica-
tion to appeal, limited to the issue of whether the Appel-
late Court properly determined that there was sufficient
evidence to convict him of intimidating a witness. State
v. Sabato, 314 Conn. 938, 938–39, 102 A.3d 1113 (2014).
We conclude that the state is precluded from arguing
that the defendant’s text message constituted a true
threat because the state never pursued such a theory
of guilt at trial. See, e.g., Cole v. Arkansas, 333 U.S. 196,
200, 68 S. Ct. 514, 92 L. Ed. 644 (1948) (‘‘[t]o sustain a
conviction on grounds not charged in the information
and which the jury had no opportunity to pass [on],
deprives [a defendant] of a fair trial and a trial by jury,
and denies [him] that due process of law guaranteed
by the [fourteenth] [a]mendment to the United States
[c]onstitution’’ [internal quotation marks omitted]). The
state argued, rather, that the defendant committed the
crime of attempt to interfere with an officer merely by
asking his friend not to give a statement to the police,
expression that the state acknowledges is constitution-
ally protected and, therefore, outside the purview of
§ 53a-167a (a). Indeed, because the state never argued
that the defendant’s text message was a true threat, the
trial court did not instruct the jury on the definition of
such a threat, as it would have been constitutionally
required to do if the state had made such an argument.
See, e.g., State v. Moulton, 310 Conn. 337, 362–63, 78
A.3d 55 (2013) (‘‘to ensure that a prosecution . . . does
not run afoul of the first amendment, the court must
instruct the jury on the difference between protected
and unprotected speech whenever the state relies on
the content of a communication as substantive evidence
of a [crime]’’). With respect to the defendant’s appeal,
we conclude that the evidence supported his conviction
of intimidating a witness. Accordingly, we affirm the
judgment of the Appellate Court.7
The opinion of the Appellate Court sets forth the
following facts, which the jury reasonably could have
found. ‘‘On November 4, 2011, Jazmyn Lopez-Gay,
accompanied by the defendant and other friends, visited
a nightclub in [the city of] Danbury. While at the night-
club, her cell phone was stolen. The following day, she
used an application on her computer to track the cell
phone’s location that indicated that it was near the
Danbury [Fair] [M]all [mall]. She then called the Dan-
bury police, who went to look for the cell phone but
were unable to find it.
That same day, November 5, 2011, the defendant
called Ian Mason, an acquaintance, and asked him to
pick him up and drive him to the . . . mall. During that
trip, the defendant sold Mason the cell phone. Because
the cell phone was password protected, Mason was
unable to access its functions or its contents. Seeking
to gain access, Mason contacted Michael Barbour, a
friend who used to perform work servicing cell phones,
and brought the cell phone to his home in [the town
of] Newtown.
‘‘Meanwhile, occurring parallel to these events,
Lopez-Gay again used the tracking application on her
computer, which indicated that her cell phone was
located at Barbour’s home . . . . Lopez-Gay then
called the Newtown Police Department, [which] sent
. . . [O]fficer Michael McGowan to that location. Once
there, McGowan spoke with Mason, who relinquished
the cell phone.
‘‘Later that night, Mason went to the Newtown Police
Department. He was questioned by a police officer and
eventually provided a sworn, written statement
recounting how he came to possess the cell phone.
Around this time, Mason sent a text message to the
defendant telling him that he was at the police station.
In response, the defendant sent a text message to Mason
telling him not to write a statement and to ‘keep [his]
mouth shut.’ The message scared Mason and caused
him to hesitate before making his statement.
‘‘At some point, the defendant discovered that Mason
had made a statement to the police. On November 12,
2011, the defendant sent Mason a series of threatening
Facebook messages. The messages shared similar con-
tent. In one message, the defendant wrote: ‘U wrote a
statement regardless. Hearsay is nothing they can’t
arrest u unless they have a statement and that’s what
u did u wrote a fucking statement. . . . I thought we
were straight and u wouldn’t be dumb enough to write
a statement after telling u that day what we did to the
last snitch. Ur a snitch kid that’s what it comes down
to and ur gonna get treated like a snitch u wrote that
statement u best be ready for the shit u got urself into.
U think it’s a fuckin game and all this is fine and [we’re]
gonna be cool cause u got scared when the cops pressed
u and u folded like every other snitch when they had
NOTHING on either of us. U fucked up I’d watch out
if I were u my boys are real pissed at u for this knowing
I’m already in enough shit [as] it is. Don’t worry about
me worry about them period.’
‘‘The defendant was charged with larceny in the fifth
degree, attempt to interfere with an officer, and intim-
idating a witness.’’ (Footnote omitted.) State v. Sabato,
supra, 152 Conn. App. 592–94.
The charge alleging that the defendant had attempted
to interfere with an officer was predicated solely on
the November 5, 2011 text message that the defendant
had sent to Mason instructing him not to give a state-
ment to the police. The charge alleging that the defen-
dant had intimidated a witness was based on the
November 12, 2011 Facebook messages that he sent to
Mason after he learned that Mason had given a state-
ment to the police. Although the Facebook messages
were admitted into evidence, the text message was not.
The assistant state’s attorney (prosecutor) questioned
Mason about the contents of the text message, however,
during the following colloquy:
‘‘Q. . . . After you texted the defendant and told him
that you were at the police station, what did he
respond with?
‘‘A. He asked me not to write a statement.
***
‘‘Q. Did he tell you to keep your mouth shut?
‘‘A. Yes.’’
Thereafter, during closing arguments, the prosecutor,
in addressing the charge of attempt to interfere with
an officer, argued that, when Mason ‘‘[went] down to
the police station, [he] . . . indicates to the defendant
that he is . . . there and . . . they have some sort of
conversation, through text message, and the defendant
indicates to him, you know, don’t give a statement to
[the] police.’’ The prosecutor then explained that, in
order to find the defendant guilty of attempt to interfere
with an officer, the jury must find that, ‘‘when the defen-
dant sent those text messages to . . . Mason, he was
attempting to hinder [the] investigation [by telling
Mason], ‘don’t cooperate with the police . . . .’ [T]hat’s
a substantial step; he didn’t complete it, but he took
that step. He is guilty of attempt to interfere with an
officer.’’ The prosecutor further argued that ‘‘the defen-
dant is charged with attempted interference; he’s not
charged with interfering, and this is important because
no one in this courtroom, especially me, is going to
claim that the defendant was successful in his attempt
to interfere with this investigation. In fact, he was
unsuccessful, which led to the Facebook messages,
which I’ll be getting to a little bit later . . . .’’
With respect to the charge of intimidating a witness,
the prosecutor argued that, to find the defendant guilty
of that offense, the jury must find that the defendant
believed that an official criminal proceeding was about
to be instituted and that he threatened Mason with
physical harm in order to prevent him from testifying
in that proceeding. The prosecutor argued that the
defendant’s Facebook messages established both ele-
ments of this offense because they demonstrated that
the defendant was aware that a criminal proceeding was
pending or about to be instituted and that he threatened
Mason with physical harm to prevent him from testi-
fying in that proceeding.
Subsequently, the jury found the defendant guilty of
attempt to interfere with an officer and intimidating a
witness.8 The court thereafter rendered judgment in
accordance with the jury’s verdict and sentenced the
defendant to one year incarceration on the interference
charge and six years incarceration, execution sus-
pended after three years, followed by five years of pro-
bation, on the intimidation charge. The sentences were
to be served consecutively for a total effective sentence
of seven years incarceration, suspended after four
years, and five years of probation. State v. Sabato, supra,
152 Conn. App. 594.
The defendant appealed from the trial court’s judg-
ment to the Appellate Court, claiming, inter alia, ‘‘that
§ 53a-167a does not proscribe physical or verbal con-
duct directed against a third party, and thus . . . there
was insufficient evidence to establish his guilt [under
that statute] because his conduct was directed against
Mason, and not a specific, identifiable police officer.’’
Id., 595. The defendant further argued that applying
§ 53a-167a to conduct directed at Mason, which
occurred outside the presence of a police officer, would
render the statute unconstitutionally void for vague-
ness. Id. Finally, the defendant argued that there was
insufficient evidence to convict him of intimidating a
witness because the Facebook messages ‘‘did not con-
stitute proof beyond a reasonable doubt that he
intended to influence, delay or prevent Mason from
testifying in an official proceeding within the meaning
of § 53a-151a.’’ Id., 597. Following oral argument in the
Appellate Court, that court, sua sponte, ordered the
parties to file simultaneous supplemental briefs
‘‘addressing the applicability, if any, of the following
language in State v. Williams, [supra, 205 Conn. 473]
to the factual circumstances of this case: To avoid the
risk of constitutional infirmity, we construe § 53a-167a
to proscribe only physical conduct and fighting words
that by their very utterance inflict injury or tend to incite
an immediate breach of the peace.’’ (Internal quotation
marks omitted.)
The Appellate Court thereafter concluded that the
evidence was insufficient to convict the defendant of
attempt to interfere with an officer because the state’s
long form information charged the defendant with vio-
lating §§ 53a-167a and 53a-49 solely on the basis of the
defendant’s text message, and it was undisputed that
that message contained no language that reasonably
could be construed as fighting words. State v. Sabato,
supra, 152 Conn. App. 596. In light of that determination,
the Appellate Court did not reach the defendant’s claim
that there was insufficient evidence to convict him of
attempting to interfere with an officer because § 53a-
167a does not proscribe conduct directed at someone
who is not an officer.
The Appellate Court, however, rejected the defen-
dant’s claim that there was insufficient evidence to con-
vict him of intimidating a witness. The court concluded
that the November 12, 2011 Facebook messages were
more than sufficient to sustain a finding that the defen-
dant believed that the police were preparing to charge
him with the theft of the cell phone, that he believed
that Mason would be called to testify at the defendant’s
criminal trial, and that he threatened Mason to prevent
him from testifying in that proceeding. See id., 598–99.
On appeal to this court following our granting of
certification, the state argues, inter alia, that the Appel-
late Court incorrectly interpreted § 53a-167a as exclud-
ing from the statute’s purview all forms of unprotected
speech except fighting words. In the alternative, the
state asks this court to ‘‘modify Williams’ gloss to allow
§ 53a-167a to proscribe all forms of unprotected verbal
conduct, including ‘true threats’ . . . .’’ In his appeal,
the defendant claims that the Appellate Court incor-
rectly concluded that the evidence supported his con-
viction of intimidating a witness because the state failed
to present evidence that the defendant believed that an
official proceeding was about to be instituted or that
he had a specific intent to influence, delay or prevent
Mason’s testimony at such a proceeding when he sent
him the Facebook messages. We address each appeal
in turn.
I
We first address the state’s contention that the Appel-
late Court incorrectly concluded that § 53a-167a does
not proscribe true threats or, alternatively, that this
court should expand Williams’ gloss to encompass such
threats. The state also argues that, if this court con-
cludes that § 53a-167a proscribes true threats, the evi-
dence was sufficient to convict the defendant of attempt
to interfere with an officer because the jury reasonably
could have found that the defendant’s text message,
when viewed in light of the defendant’s Facebook mes-
sages and certain other evidence, constituted a serious
expression of an intent to physically harm Mason if he
gave a statement to the police. The defendant contends,
inter alia, that the state is attempting to salvage a convic-
tion on the basis of a theory of guilt that was not alleged
and was never presented to the jury, in violation of the
defendant’s right to due process of law. Specifically,
the defendant argues that, because the state did not
proceed under a theory that the defendant interfered
with the police by threatening Mason with physical
harm if he gave a statement to them, this court cannot
evaluate the sufficiency of the evidence on the basis of
such a theory. The state responds that its theory of
guilt has always been ‘‘that the defendant attempted to
interfere with police questioning of Mason by sending
Mason a text message that was intended to frighten
Mason out of speaking with the police,’’ and, therefore,
the defendant’s contention that it has changed its theory
of guilt on appeal is without merit. We agree with
the defendant.
The following principles guide our analysis of the
state’s claim. Section 53a-167a (a) provides in relevant
part that ‘‘[a] person is guilty of interfering with an
officer when such person obstructs, resists, hinders or
endangers any peace officer . . . in the performance of
such peace officer’s . . . duties.’’ We previously have
interpreted ‘‘§ 53a-167a to cover some acts of verbal
resistance as well as acts of physical resistance.
Although the statute does not explicitly define the
nature of the acts that fall within its ambit, ‘resistance,’
as commonly understood, encompasses both verbal and
physical conduct. . . . The inclusion of verbal conduct
does not, per se, leave the statute so open-ended that
it lends itself to arbitrary enforcement. The statute’s
requirement of intent limits its application to verbal
conduct intended to interfere with a police officer and
excludes situations in which a defendant merely ques-
tions a police officer’s authority or protests his or her
action.’’ (Citation omitted.) State v. Williams, supra,
205 Conn. 471–72. Noting, however, that ‘‘this court
has the power to construe state statutes narrowly to
comport with the constitutional right of free speech’’
and ‘‘[t]o avoid the risk of constitutional infirmity’’; id.,
473; the court in Williams ‘‘construe[d] § 53a-167a to
proscribe only physical conduct and fighting words that
by their very utterance inflict injury or tend to incite
an immediate breach of the peace.’’ (Internal quotation
marks omitted.) Id. Such a construction, we explained,
‘‘preserves the statute’s purpose to proscribe ‘core crim-
inal conduct’ that is not constitutionally protected.’’ Id.,
474. ‘‘[I]n accordance with the purpose underlying this
judicial gloss, a defendant whose alleged threats form
the basis of a prosecution under any provision of our
Penal Code . . . is entitled to an instruction that he
could be convicted as charged only if his statements
. . . constituted a true threat, that is, a threat that
would be viewed by a reasonable person as one that
would be understood by the person against whom it
was directed as a serious expression of an intent to
harm or assault, and not as mere puffery, bluster, jest
or hyperbole.’’ (Internal quotation marks omitted.) State
v. Moulton, supra, 310 Conn. 367–68.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction, we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . .
‘‘We assume that the fact finder is free to consider
all of the evidence adduced at trial in evaluating the
defendant’s culpability, and presumably does so,
regardless of whether the evidence is relied on by the
attorneys. . . . When the state advances a specific the-
ory of the case at trial, however, sufficiency of the
evidence principles cannot be applied in a vacuum.
Rather, they must be considered in conjunction with
an equally important doctrine, namely, that the state
cannot change the theory of the case on appeal. . . .
‘‘The theory of the case doctrine is rooted in princi-
ples of due process of law. . . . In Dunn [v. United
States, 442 U.S. 100, 99 S. Ct. 2190, 60 L. Ed. 2d 743
(1979)], the United States Supreme Court explained: To
uphold a conviction on a charge that was neither alleged
in an indictment nor presented to a jury at trial offends
the most basic notions of due process. Few constitu-
tional principles are more firmly established than a
defendant’s right to be heard on the specific charges
of which he is accused. . . . [A]ppellate courts are not
free to revise the basis on which a defendant is con-
victed simply because the same result would likely
obtain on retrial. . . .
‘‘[I]n order for any appellate theory to withstand scru-
tiny under Dunn, it must be shown to be not merely
before the jury due to an incidental reference, but as
part of a coherent theory of guilt that, upon [review of]
the principal stages of trial, can be characterized as
having been presented in a focused or otherwise cogni-
zable sense. . . . Thus . . . we must analyze the evi-
dence adduced at trial to determine whether, when
considered in light of the state’s theory of guilt at trial,
the state presented sufficient evidence . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Carter, 317 Conn. 845, 853–54, 120 A.3d 1229 (2015).
As we previously indicated, the state denies that its
theory of guilt on appeal is different from what it was
at trial. The state asserts that, although the prosecutor
maintained in his closing argument that the defendant
committed the crime of attempt to interfere with an
officer by instructing Mason, via text message, not to
cooperate with the police, ‘‘[t]his one statement . . .
does not constitute an exclusive theory of guilt dis-
avowing the circumstances surrounding the text mes-
sages that demonstrated the true threatening nature of
the text message and explained Mason’s intense fearful
response to it.’’ The state also contends that, because
the prosecutor referred to Mason’s fear and one of
the defendant’s threatening Facebook messages while
discussing the interference charge, he ‘‘[implicitly] pre-
sented [the] theory that the defendant’s attempt to inter-
fere was based on his attempt to frighten Mason out
of providing a statement to the police.’’ The state’s con-
tention is without merit.
A review of the record reveals that, although the
prosecutor made reference to Mason’s fear and one of
the Facebook messages in his closing argument, both
references were made in the context of rebutting
defense counsel’s argument that the state had failed to
prove that it was the defendant and not someone else
who sent the November 5, 2011 text message to Mason,
not to demonstrate that the text message was intended
to communicate a serious expression of an intent to
harm Mason if he cooperated with the police. Specifi-
cally, the prosecutor argued: ‘‘[A]s we’re thinking about
credibility . . . Mason told you that he was receiving
these text messages [from the defendant] and that is
consistent with what the officers told you, that he was
receiving texts and that he was, in fact, frightened
. . . . And, also, let’s go back to the Facebook mes-
sages, as [they relate] to this charge, referring to the
Facebook message that this defendant sent . . . on
November 12, 2011, [telling Mason] ‘never write a state-
ment, ever, I talked with you about that that day’ . . . .
And, so, [we have] . . . consciousness of guilt. This
defendant said, ‘I told you that day not to write a state-
ment.’ Why is that important? Because . . . Mason told
you he was receiving those text messages. Ladies and
gentlemen, that is the equivalent of a confession to
attempt to interfere with an officer.’’ The prosecutor’s
explanation as to why the Facebook messages were
relevant to the interference charge is consistent with
his response, earlier in the trial, when asked by the
court whether the Facebook messages were being
offered solely in relation to the larceny9 and intimidation
charges. The prosecutor responded that they were also
relevant to the interference charge because, in one of
the messages, the defendant ‘‘basically admits to send-
ing the text and telling [Mason] not to write a state-
ment . . . .’’
At no time did the prosecutor suggest that the Face-
book messages—or any other evidence for that mat-
ter—were relevant to the interference charge because
they helped to prove that the defendant’s November 5,
2011 text message, although neutral on its face, was
intended to communicate a serious expression of an
intent to harm Mason if he cooperated with the police.
Cf. State v. Robert H., 273 Conn. 56, 82–85, 866 A.2d
1255 (2005) (under theory of case doctrine, when state
did not present sexual act by defendant as culpable
conduct at trial, state could not rely on that act on
appeal to support jury’s verdict in response to suffi-
ciency challenge). Indeed, the prosecutor never uttered
the words ‘‘threat’’ or ‘‘threatening’’ in relation to the
text message, even though, as the state acknowledges,
under a true threat theory of guilt, the state bore the
burden of establishing beyond a reasonable doubt that
the text communicated such a threat. See, e.g., State v.
Krijger, 313 Conn. 434, 458, 97 A.3d 946 (2014) (‘‘[When]
a communication contains language [that] is equally
susceptible of two interpretations, one threatening, and
the other nonthreatening, the government carries the
burden of presenting evidence serving to remove that
ambiguity. [In the absence of] such proof, the trial court
must direct a verdict of acquittal.’’ [Internal quotation
marks omitted.]). Rather, as we previously indicated,
the prosecutor referred to the November 5, 2011 text
message exchange between Mason and the defendant
as ‘‘some sort of conversation’’ in which ‘‘the defendant
indicates to [Mason], you know, don’t give a statement
to [the] police.’’ According to the prosecutor, it was
that statement—’’don’t give a statement to [the]
police’’—that constituted the actus reus of the offense.
As we have explained, however, and as the state con-
cedes, § 53a-167a does not proscribe such verbal con-
duct, and, therefore, the defendant’s conviction under
that statute cannot stand.
Our determination that the state did not pursue a
theory of guilt predicated on threatening language is
strongly reinforced by the fact that the trial court did
not instruct the jury on the true threat doctrine. Of
course, the trial court never gave such an instruction
because the state never claimed that the defendant’s
text message constituted a true threat. A true threat
instruction is required, however, in any case in which
the defendant’s threatening speech forms the basis of
the prosecution because only a true threat may be pros-
ecuted under the first amendment. E.g., State v. Moul-
ton, supra, 310 Conn. 367–68 (‘‘a defendant whose
alleged threats form the basis of a prosecution under
any provision of our Penal Code . . . is entitled [under
the first amendment] to an instruction that he could
be convicted as charged only if his statements . . .
constituted a true threat’’ [internal quotation marks
omitted]). Accordingly, and for the reasons previously
set forth in this opinion, the state cannot prevail on its
claim that the evidence was sufficient to convict the
defendant of attempt to interfere with an officer based
on the theory that the defendant’s November 5, 2011
text message constituted a true threat.
II
We next address the defendant’s appeal, in which he
claims that the Appellate Court incorrectly determined
that the evidence was sufficient to convict him of intim-
idating a witness in violation of § 53a-151a (a). The
defendant argues that, although the evidence supported
a finding that he threatened Mason for ‘‘snitch[ing],’’ it
did not support a finding that he believed that an official
proceeding was imminent when he did so, or that his
intention was to prevent Mason’s testimony in such a
proceeding. We disagree.
Section 53a-151a (a) provides in relevant part: ‘‘A
person is guilty of intimidating a witness when,
believing that an official proceeding is pending or about
to be instituted, such person uses, attempts to use or
threatens the use of physical force against a witness
or another person with intent to (1) influence, delay
or prevent the testimony of the witness in the official
proceeding . . . .’’ General Statutes § 53a-146 (6)
defines ‘‘witness’’ as ‘‘any person summoned, or who
may be summoned, to give testimony in an official pro-
ceeding.’’ In State v. Ortiz, 312 Conn. 551, 93 A.3d 1128
(2014), this court explained that the phrase ‘‘believing
that an official proceeding is pending or about to be
instituted,’’ as used in General Statutes § 53a-151 (a),10
the witness tampering statute, is satisfied ‘‘as long as
the defendant believes that an official proceeding will
probably occur, [and] it does not matter whether an
official proceeding is actually pending or is about to be
instituted.’’ (Emphasis omitted.) State v. Ortiz, supra,
569. In light of the close relationship between §§ 53a-
151 (a) and 53a-151a (a), it is appropriate to give the
same phrase in each statute the same meaning. See,
e.g., State v. Grant, 294 Conn. 151, 160, 982 A.2d 169
(2009) (‘‘ordinarily, the same or similar language in the
same statutory scheme will be given the same mean-
ing’’).
Applying the foregoing definitions to the present
facts, we agree with the Appellate Court that the defen-
dant’s November 12, 2011 Facebook messages amply
supported a finding that the defendant believed that
an official proceeding would probably occur and that
Mason would probably be summoned to testify at that
proceeding. As the Appellate Court explained, ‘‘[i]n one
Facebook message, the defendant acknowledged that
the police were ‘getting warrants’ and ‘building a case’
against him. In a different message, the defendant
wrote, ‘I’ll eat the charge . . . .’ In yet another message,
the defendant told Mason that he was ‘already in enough
shit [as] it is.’ From these statements [alone], the jury
reasonably could have inferred that the defendant
believed that an official proceeding probably would be
instituted.’’ State v. Sabato, supra, 152 Conn. App. 598.
‘‘Similarly, the record establishe[d] that there was
sufficient evidence for the jury to conclude that the
defendant believed that Mason probably would be sum-
moned to testify. The term witness is broad, as it
includes any person summoned, or who may be sum-
moned, to give testimony . . . . General Statutes
§ 53a-146 (6). The Facebook messages show that the
defendant knew that Mason had provided a statement
implicating him in the cell phone theft. It was therefore
reasonable for the jury to infer that the defendant
believed that Mason probably would be called to testify
in conformity with that statement at a future proceed-
ing.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Sabato, supra, 152 Conn. App. 598–99.
Indeed, the defendant stated in one of those messages,
‘‘it’s YOUR statement that is gonna fuck it up,’’ thereby
demonstrating the defendant’s clear understanding that
Mason’s testimony would be critical at such a pro-
ceeding.
We also agree with the Appellate Court that the evi-
dence supported the jury’s finding that the defendant,
in threatening Mason, intended to influence, delay or
prevent Mason’s testimony at a criminal trial. As the
Appellate Court observed, ‘‘in one Facebook message,
the defendant wrote, ‘Ur gonna learn the hard way that
snitches get what’s comin to em straight the fuck up.’
In a later message, the defendant wrote: ‘Bro snitches
get fucked up . . . . The term snitches get stitches is
because of snitches. . . . U know that this shit isn’t
gonna just be left alone for what u did. I just hope ur
ready and prepared for the repercussions for ur actions
cause I sure am. I’ll see u very soon.’ In yet another
message, the defendant wrote, ‘just know that this shit
isn’t gonna go unsettled and u can take it how u want
but shit is gonna get handled . . . .’ In his final mes-
sage, the defendant wrote: ‘I thought we were straight
and u wouldn’t be dumb enough to write a statement
after telling u that day what we did to the last snitch.
. . . [U]r gonna get treated like a snitch . . . . [U] best
be ready for the shit u got urself into. . . . I’d watch
out if I were u . . . .’ ’’ State v. Sabato, supra, 152 Conn.
App. 599. On the basis of this evidence, the Appellate
Court concluded, and we agree, that the ‘‘jury reason-
ably could have inferred that the defendant intended
the natural consequences of these threats, which would
have included the influence, delay or prevention of
Mason’s testimony at a future proceeding.’’ Id.
Indeed, the present case is virtually identical to State
v. Ortiz, supra, 312 Conn. 551. In that case, the defen-
dant, Akov Ortiz, was convicted of tampering with a
witness in violation of § 53a-151 (a) on the basis of the
jury’s finding that he threatened a witness with physical
harm if she gave a statement to the police. Id., 553,
557. On appeal, Ortiz claimed that the evidence was
insufficient to convict him because § 53a-151 (a) ‘‘does
not proscribe attempts to prevent an individual from
speaking to the police’’ but does proscribe ‘‘[attempts]
to affect a witness’ conduct at an official proceeding.’’
Id., 554. Although we agreed with Ortiz’ reading of the
statute, we nevertheless concluded that the evidence
supported his conviction because the jury reasonably
could have inferred that Ortiz ‘‘intended the natural
consequences of [his] threat—that [the witness] not
only withhold information from the police but also with-
hold testimony or provide false testimony at a future
official proceeding.’’ Id., 573. As in Ortiz, the jury in
the present case reasonably could have inferred that
the defendant, in threatening Mason because of his prior
cooperation with the authorities, necessarily intended
to convey to Mason that any future cooperation would
be treated in the same manner.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-167a (a) provides in relevant part: ‘‘A person is
guilty of interfering with an officer when such person obstructs, resists,
hinders or endangers any peace officer . . . in the performance of such
peace officer’s . . . duties.’’
2
General Statutes § 53a-49 (a) provides in relevant part: ‘‘A person is
guilty of attempt to commit a crime if, acting with the kind of mental state
required for commission of the crime, he . . . (2) intentionally does or
omits to do anything which, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.’’
3
General Statutes § 53a-151a (a) provides in relevant part: ‘‘A person is
guilty of intimidating a witness when, believing that an official proceeding
is pending or about to be instituted, such person uses, attempts to use or
threatens the use of physical force against a witness or another person with
intent to (1) influence, delay or prevent the testimony of the witness in the
official proceeding . . . .’’
4
We previously have described fighting words as ‘‘speech that has a direct
tendency to cause imminent acts of violence or an immediate breach of the
peace. Such speech must be of such a nature that it is likely to provoke
the average person to retaliation.’’ (Internal quotation marks omitted.) State
v. Szymkiewicz, 237 Conn. 613, 620, 678 A.2d 473 (1996), quoting Texas v.
Johnson, 491 U.S. 397, 409, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).
5
‘‘True threats encompass those statements [in which] the speaker means
to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals. . . .
The speaker need not actually intend to carry out the threat. Rather, a
prohibition on true threats protect[s] individuals from the fear of violence
and from the disruption that fear engenders, in addition to protecting people
from the possibility that the threatened violence will occur.’’ (Internal quota-
tion marks omitted.) State v. Moulton, 310 Conn. 337, 349, 78 A.3d 55 (2013).
6
This court certified the following three issues in the state’s appeal: ‘‘1.
Did the Appellate Court properly determine that there was insufficient evi-
dence to convict the defendant of attempt to interfere with an officer in
violation of . . . [§§] 53a-167a [and 53a-49]?
‘‘2. If the answer to the first question is in the affirmative, should this
court modify State v. Williams, [supra, 205 Conn. 456], to proscribe not
only fighting words, but also true threats and other categories of unpro-
tected speech?
‘‘3. Under the circumstances of this case, was the lack of a jury instruction
Sabato, 314 Conn. 938, 102 A.3d 1114 (2014).
7
Because we reject the state’s threshold contention that it has not altered
its theory of guilt on appeal, we need not reach the other issues presented
in its appeal, namely, whether true threats fall within the purview of § 53a-
167a (a) and, if they do, whether the state presented sufficient evidence
to support a finding that the defendant’s November 5, 2011 text message
communicated such a threat, and whether the defendant waived his right
to an instruction on true threats or, alternatively, whether the trial court’s
failure to give such an instruction was harmless error. Our determination
that the state has changed its theory of guilt on appeal also makes it unneces-
sary to decide the defendant’s claim, which the Appellate Court did not
reach, that § 53a-167a (a) does not proscribe the conduct at issue in this case.
8
The defendant also was charged with larceny in the fifth degree for the
alleged theft of the cell phone. The jury could not reach a unanimous verdict
on that count, however, and the court declared a mistrial as to that charge,
which is not the subject of this appeal.
9
See footnote 8 of this opinion.
10
General Statutes § 53a-151 (a) provides: ‘‘A person is guilty of tampering
with a witness if, believing that an official proceeding is pending or about
to be instituted, he induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning him to testify or absent
himself from any official proceeding.’’
We previously have observed that ‘‘the purpose of part XI of the Connecti-
cut Penal Code, in which § 53a-151 (a) [and § 53a-151a (a) are] found, [is
to] punish those who interfere with the courts and our system of justice.’’
(Internal quotation marks omitted.) State v. Ortiz, supra, 312 Conn. 562.