State v. Liebenguth ( 2018 )

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STATE OF CONNECTICUT v. DAVID
G. LIEBENGUTH
(AC 39506)
DiPentima, C. J., and Sheldon and Devlin, Js.
Syllabus
Convicted, following a trial to the court, of the crimes of breach of the
peace in the second degree and tampering with a witness, the defendant
appealed to this court. His conviction stemmed from an incident in
which he allegedly confronted and made racial slurs toward a parking
authority officer, M, over a parking ticket, and subsequently e-mailed
M’s supervisor suggesting why M should not appear in court to testify.
On appeal, the defendant claimed that the evidence adduced at trial
was insufficient to support his conviction of either charge. Held:
1. The trial court incorrectly concluded that the evidence adduced at trial
was sufficient to support the defendant’s conviction of breach of the
peace in the second degree: that court’s finding that the defendant twice
directed a racial slur at M in a belligerent tone, with an aggressive stance
and while walking toward him was clearly erroneous, as the defendant
was inside his car on both occasions when he made the racial slur, and
although the defendant used extremely vulgar and offensive language
that was meant to personally demean M, under the circumstances in
which he uttered that language it was not likely to tend to provoke a
reasonable person in M’s position immediately to retaliate with violence,
and, therefore, because M was unlikely to have retaliated with immediate
violence to the conduct for which the defendant was charged, the defen-
dant’s words were not fighting words on which he might appropriately
be convicted of breach of the peace; accordingly, his conviction of
breach of the peace in the second degree could not stand.
2. The evidence adduced at trial was sufficient to support the defendant’s
conviction of tampering with a witness in violation of statute (§ 53a-151),
there having been ample evidence demonstrating that the defendant
intended to induce M to absent himself from a court proceeding; the state
presented evidence that the defendant sent an e-mail to M’s supervisor
implying that he would press felony charges against M and cause M to
lose his job if he appeared in court to testify, but that he would let the
matter drop if M did not appear in court to testify, and the defendant’s
claim that the e-mail did not constitute a true threat against M was
unavailing, as the state did not claim that the defendant tampered with
a witness by threatening him and, thus, was not required to prove, nor
was the trial court required to find, that the defendant threatened M in
order to establish that he sought to induce him not to testify for purposes
of § 53a-151, under which a defendant need not contact a witness directly
to be convicted.
(One judge concurring in part and dissenting in part)
Argued November 15, 2017—officially released April 17, 2018
Procedural History
Substitute information charging the defendant with
the crimes of breach of the peace in the second degree
and tampering with a witness, brought to the Superior
Court in the judicial district of Norwalk, geographical
area number twenty, and tried to the court, Hernandez,
J.; judgment of guilty, from which the defendant
appealed to this court. Reversed in part; judgment
directed.
Joseph M. Merly, with whom, on the brief, was John
R. Williams, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Nadia C. Prinz, deputy assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, David G. Liebenguth,
was convicted, following a bench trial, of breach of
the peace in the second degree in violation of General
Statutes § 53a-181 (a) (5) and tampering with a witness
in violation of General Statutes § 53a-151. The charges
were filed in connection with an angry confrontation
between the defendant and a parking authority officer
who had issued him a parking ticket, and a subsequent
e-mail from the defendant to the officer’s supervisor,
suggesting why the officer should not appear in court
to testify against him. The defendant now appeals,
claiming that the evidence adduced at trial was insuffi-
cient to support his conviction of either charge. We
affirm in part and reverse in part the judgment of the
trial court.
The following evidence was presented at trial.
Michael McCargo, a parking enforcement officer for the
town of New Canaan, testified that he was patrolling
the Morris Court parking lot on the morning of August
28, 2014, when he noticed that the defendant’s vehicle
was parked in a metered space for which no payment
had been made. He first issued a ticket for the defen-
dant’s vehicle, then walked to another vehicle to issue
a ticket, while his vehicle remained idling behind the
defendant’s vehicle. As McCargo was returning to his
vehicle, he was approached by the defendant, whom he
had never before seen or interacted with. The defendant
said to McCargo, ‘‘not only did you give me a ticket,
but you blocked me in.’’ Initially believing that the
defendant was calm, McCargo jokingly responded that
he didn’t want the defendant getting away. When the
defendant then attempted to explain why he had parked
in the lot, McCargo responded that his vehicle was in
a metered space for which payment was required, not
in one of the lot’s free parking spaces. McCargo testified
that the defendant’s demeanor then ‘‘escalated,’’ with
the defendant saying that the parking authority was
‘‘unfucking believable’’ and telling McCargo that he had
given him a parking ticket ‘‘because my car is white.
. . . [N]o, [you gave] me a ticket because I’m white.’’
As the defendant, who is white, spoke with McCargo,
who is African-American, he ‘‘flared’’ his hands and
added special emphasis to the profanity he uttered.
Even so, according to McCargo, the defendant always
remained a ‘‘respectable’’ distance from him. Finally,
as the defendant was walking away from McCargo
toward his own vehicle, he spoke the words, ‘‘remem-
ber Ferguson.’’
After both men had returned to and reentered their
vehicles, McCargo, whose window was rolled down,
testified that he thought he heard the defendant say the
words, ‘‘fucking niggers.’’ This caused him to believe
that the defendant’s prior comment about Ferguson had
been made in reference to the then recent shooting of
an African-American man by a white police officer in
Ferguson, Missouri. He thus believed that the defendant
meant to imply that what had happened in Ferguson
‘‘was going to happen’’ to him. McCargo also believed
that by uttering the racial slur and making reference to
Ferguson, the defendant was trying to rile him up and
escalate the situation. That, however, did not happen,
for although McCargo found the remark offensive, and
he had never before been the target of such language
while performing his duties, he remained calm at all
times and simply drove away to resume his patrol.
Shortly thereafter, however, as he was driving away,
the defendant drove past him. As he did so, McCargo
testified that the defendant turned toward him, looked
directly at him with an angry expression on his face,
and repeated the slur, ‘‘fucking niggers.’’ McCargo noted
in his testimony that the defendant said the slur louder
the second time than he had the first time.
After the defendant drove out of the parking lot,
McCargo called his supervisor, who instructed him to
report the incident to the New Canaan police. In his
report, McCargo noted that there might have been a
witness to the interaction, whom he described as a
young white female. The defendant later was arrested
in connection with the incident on the charge of breach
of the peace in the second degree.
Next to testify was Mallory Frangione, the young
white female witness to the incident whom McCargo
had mentioned in his report. She testified that she
parked in the Morris Court parking lot around 9:45 a.m.
on the morning of August 28, 2014, and as soon as she
opened her car door, she heard yelling. She then saw
two men, McCargo and the defendant, who were stand-
ing outside of their vehicles about seventy feet away
from her. She observed that the defendant was moving
his hands all around, that his body movements were
aggressive and irate, and that his voice was loud. She
heard him say something about Ferguson, then say that
something was ‘‘f’ing unbelievable.’’ She further testi-
fied that she saw the defendant take steps toward
McCargo while acting in an aggressive manner. She
described McCargo, by contrast, as calm, noting that he
never raised his voice, moved his arms or gesticulated
in any way. McCargo ultimately backed away from the
defendant and got into his vehicle. The defendant, she
recalled, drove in two circles around the parking lot
before leaving. Frangione testified that witnessing the
interaction made her feel nervous and upset.
Karen Miller, McCargo’s supervisor at the New
Canaan Parking Department, also testified. Miller
received an e-mail from the defendant at work on March
6, 2015. The e-mail, which was admitted into evidence,
read as follows: ‘‘Please be advised that on March 12th
at 2 p.m.1 in a court of law in Norwalk, CT., I will prove
beyond any reasonable doubt that your meter maid did
in fact commit multiple crimes against me, including
at least one FELONY, as well as breaking CT vehicular/
traffic laws in the operation of his vehicle and New
Canaan town ordinances while on the job PRIOR to
any false allegations of breach of peace in the second
degree on my part. Additionally, as such, I also intend
to subsequently invoke and pursue New Canaan town
ordinances that would effectively require this meter
maid to resign, or be terminated, from his position.
‘‘Although it is not my desire to escalate this situation
to the point a mans job, career, and lively hood is on
the line, I must do what is necessary to prove my inno-
cence. And in that course it will be proven your mater
maid did in fact commit multiple crimes, including at
least one FELONY, and infractions against me on that
day BEFORE I was forced to react to his criminal
actions against me.
‘‘Of course if this is what you want to see happen I
look forward to you and your meter maids presence in
court next week. It goes without mention that if your
meter maid does not show up in court this case will
be over and everyone can go peacefully on their own
way, no harm, no foul, no fallout.
‘‘It’s your choice now to make whatever recommen-
dation you wish to your selectman. It will be MY
CHOICE to defend myself from these false charges next
week in court by proving (at minimum showing proba-
ble cause for an arrest!) your meter maid a criminal at
best.a FELON at worst. Perhaps the judge will remand
him to custody right then and there from his witness
chair?
‘‘Obviously not if he is not there.’’2 (Footnote added.)
Miller understood the e-mail to mean that McCargo
should absent himself from court proceedings.
McCargo also read the e-mail, the sending of which he
described as a ‘‘scare tactic.’’ He believed the defendant
sent the e-mail in order to persuade him not to go to
court and testify, and that if he did appear in court,
the defendant would pursue negative repercussions as
outlined in his e-mail.
After the state rested, the defendant moved for a
judgment of acquittal on both counts, which the court
denied. The defendant elected not to testify. The court,
ruling from the bench, found the defendant guilty on
both counts. It reasoned as follows: ‘‘In finding that
the defendant’s language and behavior is not protected
speech, the court considers the words themselves, in
other words, the content of the speech, the context
in which it was uttered, and all of the circumstances
surrounding the defendant’s speech and behavior.
‘‘The court finds that the defendant’s language, fuck-
ing niggers directed at Mr. McCargo twice . . . is not
protected speech. . . . The defendant’s use of the par-
ticular racial epithet is in the American lexicon, there
is no other racial epithet more loaded with racial ani-
mus, no other epithet more degrading, demeaning or
dehumanizing. It is a word which is probably the most
[vile] racial epithet a non-African-American can direct
towards an African-American. [The defendant] is white.
Mr. McCargo is African-American.
‘‘In light of this country’s long and shameful history
of state sanctioned slavery, Jim Crow segregation, state
sanctioned racial terrorism, financial and housing dis-
crimination, the word simply has . . . no understand-
ing under these circumstances other than as a word
directed to incite violence. The word itself is a word
likely to provoke a violent response.
‘‘The defendant is not however being prosecuted
solely for use of this word. All language must be consid-
ered in light of its context.
‘‘The court finds that considering . . . the content
of the defendant’s speech taken in context and in light
of his belligerent tone, his aggressive stance, the fact
that he was walking towards Mr. McCargo and moving
his hands in an aggressive manner, there’s no other
interpretation other than these are fighting words. And
he uttered the phrase not once but twice. It was
directed—the court finds that it was directed directly
at Mr. McCargo. There were no other African-Americans
present . . . in the parking lot when it happened, and
indeed Mr. McCargo’s unease and apprehension at hear-
ing those words was corroborated by Mallory Frangione
who . . . said that she felt disconcerted by the defen-
dant’s tone of voice and his aggressive stance and
actions.
‘‘With respect to count two, the court has . . . simi-
larly considered the words that were used in the e-mail,
the subject e-mail. It finds that there is nothing in the
evidence which suggests that in sending the e-mail, the
defendant intended to comment or bring attention to
a matter of public concern in a public forum.3 . . .
‘‘[T]he content . . . of the communication . . .
itself was of an entirely personal nature. [The defen-
dant] stated that he was willing to withdraw his claim
which he now suggests was a matter of public interest,
in exchange for a purely personal benefit, namely the
withdrawal of criminal charges which were then pend-
ing against [him].
‘‘So for those reasons, the court rejects the defen-
dant’s claim that either or both of these statements were
protected first amendment speech.’’ (Footnote added.)
The court later sentenced the defendant as follows: on
the charge of breach of the peace in the second degree,
to a term of six months, execution suspended, followed
by two years of probation on several special conditions,
plus a $1000 fine; and on the charge of tampering with a
witness, a consecutive term of four years incarceration,
execution suspended, followed by four years of proba-
tion on the same special conditions and a $3000 fine.
This appeal followed.
We begin with our standard of review. ‘‘It is well
settled that a defendant who asserts an insufficiency
of the evidence claim bears an arduous burden. . . .
[F]or the purposes of sufficiency review . . . we
review the sufficiency of the evidence as the case was
tried . . . . [A] claim of insufficiency of the evidence
must be tested by reviewing no less than, and no more
than, the evidence introduced at trial. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [fact
finder] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt . . . . This court cannot substitute
its own judgment for that of the [fact finder] if there
is sufficient evidence to support the [fact finder’s] ver-
dict. . . .
‘‘[T]he [fact finder] must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the [fact finder] to
conclude that a basic fact or an inferred fact is true,
the [fact finder] is permitted to consider the fact proven
and may consider it in combination with other proven
facts in determining whether the cumulative effect of
all the evidence proves the defendant guilty of all the
elements of the crime charged beyond a reasonable
doubt. . . . Moreover, it does not diminish the proba-
tive force of the evidence that it consists, in whole or
in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact . . . but the cumulative
impact of a multitude of facts which establishes guilt
in a case involving substantial circumstantial evidence.
. . . In evaluating evidence, the [fact finder] is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The [fact finder] may draw whatever inferences from
the evidence or facts established by the evidence [that]
it deems to be reasonable and logical. . . .
‘‘[O]n appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [fact finder’s] verdict of guilty. . . . [T]he trier of
fact may credit part of a witness’ testimony and reject
other parts. . . . [W]e must defer to the [fact finder’s]
assessment of the credibility of the witnesses based on
its firsthand observation of their conduct, demeanor
and attitude . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Raynor, 175 Conn. App.
409, 424–26, 167 A.3d 1076, cert. granted, 327 Conn.
969, 173 A.3d 952 (2017).
I
The defendant first claims that the evidence was
insufficient to support his conviction for breach of the
peace in the second degree because the words he
uttered to McCargo were protected speech under the
first amendment to the United States constitution4 and
thus did not violate § 53a-181 (a) (5).
‘‘Ordinarily, a jury or trial court’s findings of fact are
not to be overturned on appeal unless they are clearly
erroneous. . . . Thus, we [generally] review the find-
ings of fact . . . for clear error.
‘‘In certain first amendment contexts, however,
appellate courts are bound to apply a de novo standard
of review. . . . [In such cases], the inquiry into the
protected status of . . . speech is one of law, not fact.
. . . As such, an appellate court is compelled to exam-
ine for [itself] the . . . statements [at] issue and the
circumstances under which they [were] made to [deter-
mine] whether . . . they . . . are of a character [that]
the principles of the [f]irst [a]mendment . . . protect.
. . . [I]n cases raising [f]irst [a]mendment issues [the
United States Supreme Court has] repeatedly held that
an appellate court has an obligation to make an indepen-
dent examination of the whole record in order to make
sure that the judgment does not constitute a forbidden
intrusion [into] the field of free expression. . . . This
rule of independent review was forged in recognition
that a [reviewing] [c]ourt’s duty is not limited to the
elaboration of constitutional principles . . . . [Rather,
an appellate court] must also in proper cases review
the evidence to make certain that those principles have
been constitutionally applied. . . . Therefore, even
though, ordinarily . . . [f]indings of fact . . . shall not
be set aside unless clearly erroneous, [appellate courts]
are obliged to [perform] a fresh examination of crucial
facts under the rule of independent review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Krijger, 313 Conn. 434, 446–47, 97 A.3d 946 (2014). The
court in Krijger also noted, however, that although an
appellate court ‘‘review[s] de novo the trier of fact’s
ultimate determination that the statements at issue con-
stituted a [breach of the peace], [the court] accept[s]
all subsidiary credibility determinations and findings
that are not clearly erroneous.’’ Id., 447.
The defendant argues that the trial court’s findings
that he directed the phrase ‘‘fucking niggers’’ at
McCargo ‘‘in context and in light of his belligerent tone,
his aggressive stance, [and] the fact that he was walking
toward Mr. McCargo and moving his hands in an aggres-
sive manner’’ have no support in the evidence and,
in fact, are contradicted by the evidence. Pursuant to
Krijger, we must examine the statements at issue to
determine whether they are of such a character as to
be protected under the first amendment. See State v.
Krijger, supra, 313 Conn. 446. Upon conducting such
an examination, we agree with the defendant that the
court’s findings are clearly erroneous.
‘‘The starting point for our analysis is an examination
of the statements at issue.’’ Id., 452. The defendant does
not contest the finding that he twice used the words
‘‘fucking niggers,’’ or the finding that he directed those
words at McCargo. Frangione, however, who was the
only person to testify that the defendant ever walked
toward McCargo while speaking to him, did not testify
that she ever heard the defendant say the words ‘‘fuck-
ing niggers.’’ McCargo, who did testify to hearing the
defendant say those words, testified that the defendant
‘‘[stood] his ground’’ during the incident, staying at a
‘‘respectable’’ distance from him throughout. According
to McCargo, the defendant was inside his car on both
occasions when he said the words ‘‘fucking niggers.’’
The trial court’s finding that the defendant twice
directed the phrase ‘‘fucking niggers’’ at McCargo, in a
belligerent tone, with an aggressive stance and while
walking toward him, is therefore clearly erroneous.
We continue our analysis to determine whether the
defendant’s speech, as supported by the evidence
adduced at trial, could lawfully constitute a breach of
the peace under the fighting words exception to the first
amendment. Our Supreme Court recently discussed the
type of speech that constitutes ‘‘fighting words,’’ and
thus is not protected by the first amendment, in State
v. Baccala, 326 Conn. 232, 163 A.3d 1, cert. denied,
U.S. , 138 S. Ct. 510, 199 L. Ed. 2d 408 (2017). In
Baccala, the defendant was convicted of breach of the
peace in the second degree after a customer service
dispute in a supermarket. Id., 233–34. The defendant
customer called the supermarket to request that the
store keep the customer service desk open until she
arrived so that she could pick up a Western Union
money transfer. Id., 235. The manager who answered
her telephone call informed her that the desk was
already closed and the services she sought were cur-
rently unavailable. Id. ‘‘The defendant became belliger-
ent, responded that she ‘really didn’t give a shit,’ and
called [the manager] ‘[p]retty much every swear word
you can think of’ before the call was terminated.’’ Id.
A few minutes after the telephone call, the defendant
arrived at the store, went inside, and proceeded directly
to the closed customer service desk, where she
attempted to fill out a money transfer form. Id. After
the manager with whom she had spoken on the tele-
phone told her once again that the customer service
desk was closed for the day, the defendant ‘‘proceeded
to loudly call [the manager] a ‘fat ugly bitch’ and a ‘cunt’
and said ‘fuck you, you’re not a manager,’ all while
gesticulating with her cane.’’ (Footnote omitted.) Id.,
236. The manager remained calm during this outburst
and responded to the defendant by telling her to have
a good night, at which point the defendant left the
store. Id. On appeal, our Supreme Court held that the
foregoing evidence was insufficient to support the
defendant’s breach of peace conviction under settled
first amendment principles; id., 237; ‘‘[b]ecause the
words spoken by the defendant were not likely to pro-
voke a violent response under the circumstances in
which they were uttered.’’ Id., 234.
‘‘[A] proper contextual analysis,’’ the court in Baccala
wrote, ‘‘requires consideration of the actual circum-
stances, as perceived by both a reasonable speaker and
addressee, to determine whether there was a likelihood
of violent retaliation. This necessarily includes the man-
ner in which the words were uttered, by whom and to
whom the words were uttered, and any other attendant
circumstances that were objectively apparent and bear
on the question of whether a violent response was
likely.’’5 Id., 250.
‘‘[I]t is precisely this consideration of the specific
context in which the words were uttered and the likeli-
hood of actual violence, not an undifferentiated fear
or apprehension of disturbance, that is required by the
United States Supreme Court’s decisions following
Chaplinsky [v. New Hampshire, 315 U.S. 568, 62 S. Ct.
766, 86 L. Ed. 1031 (1942)]. . . . Because the fighting
words exception is concerned only with preventing the
likelihood of actual violence, an approach ignoring the
circumstances of the addressee is antithetical and sim-
ply unworkable.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Id., 248. ‘‘[T]he
fighting words exception is not concerned with creating
symmetrical free speech rights by way of establishing
a uniform set of words that are constitutionally pro-
scribed. . . . Rather, because the fighting words
exception is intended only to prevent the likelihood
of an actual violent response, it is an unfortunate but
necessary consequence that we are required to differen-
tiate between addressees who are more or less likely
to respond violently and speakers who are more or less
likely to elicit such a response.’’ (Citation omitted.)
Id., 249.
The court applied a two part test ‘‘[i]n considering
the defendant’s challenge to the sufficiency of the evi-
dence to support her conviction of breach of the peace
in the second degree in accordance with her first
amendment rights . . . . First, as reflected in the pre-
vious recitation of facts, we construe the evidence in
the light most favorable to sustaining the verdict. . . .
Second, we determine whether the trier of fact could
have concluded from those facts and reasonable infer-
ences drawn therefrom that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . Accordingly, to establish the defendant’s violation
of § 53a-181 (a) (5) . . . in light of its constitutional
gloss, the state was required to prove beyond a reason-
able doubt that the defendant’s words were likely to
provoke an imminent violent response from an average
store manager in [that woman’s] position.’’ (Citations
omitted.) Id., 250–51.
The court continued: ‘‘At the outset of [our] examina-
tion, we must acknowledge that the words and phrases
used by the defendant—‘fat ugly bitch,’ ‘cunt,’ and ‘fuck
you, you’re not a manager’—were extremely offensive
and meant to personally demean [the manager]. The
defendant invoked one or more of the most vulgar terms
known in our lexicon to refer to [the manager’s] gender.
Nevertheless, ‘[t]he question in this case is not whether
the defendant’s words were reprehensible, which they
clearly were; or cruel, which they just as assuredly
were; or whether they were calculated to cause psychic
harm, which they unquestionably were; but whether
they were criminal.’ . . . Uttering a cruel or offensive
word is not a crime unless it would tend to provoke a
reasonable person in the addressee’s position to imme-
diately retaliate with violence under the circum-
stances.’’ (Citation omitted; emphasis in original.) Id.,
251–52.
In determining that the defendant’s conduct in Bac-
cala did not support a conviction for breach of the
peace because the state did not prove beyond a reason-
able doubt that the manager was likely to retaliate with
violence, the court considered several factors. Id., 252.
First, the court discussed the telephone call that pre-
ceded the in-person interaction: Because the defendant
had already been belligerent to and directed swear
words at the manager over the telephone, the manager
‘‘reasonably would have been aware of the possibility
that a similar barrage of insults . . . would be directed
at her.’’ Id. Second, the court noted that store managers
are routinely confronted by frustrated customers, who
often express themselves in angry terms, and are
expected in such situations to model appropriate behav-
ior and deescalate the situation. Id., 253. Additionally,
the manager had a significant degree of control over
the premises where the confrontation took place and
could have resorted to lawful self-help tools if the defen-
dant became abusive, rather than responding with vio-
lence herself. Id. The court concluded that ‘‘[g]iven the
totality of the circumstances in the present case . . .
it would be unlikely for an on duty store manager in
[her] position to respond in kind to the defendant’s
angry diatribe with similar expletives.’’ Id. Finally, the
court noted that the manager did not respond with
profanity or violence, observing that ‘‘[a]lthough the
reaction of the addressee is not dispositive . . . it is
probative of the likelihood of a violent reaction.’’ (Cita-
tion omitted.) Id., 254.
In this case, as in Baccala, the defendant used
extremely vulgar and offensive language, meant to per-
sonally demean McCargo.6 Under the circumstances in
which he uttered this language, however, it was not
likely to tend to provoke a reasonable person in
McCargo’s position immediately to retaliate with vio-
lence. Although the evidence unequivocally supports a
finding that the defendant at one point walked toward
McCargo while yelling and moving his hands, there is
no evidence that the defendant simultaneously used the
racial slurs. The evidence unequivocally shows, instead,
that the defendant was in his car both times that he
directed the racial slurs toward McCargo.7 McCargo did
testify that the defendant’s use of the slurs shocked
and appalled him, and that he found the remarks offen-
sive. He also testified, however, that he remained calm
throughout the encounter and felt no need to raise his
voice to the defendant. A reasonable person acting in
the capacity of a parking official would be aware that
some level of frustration might be expressed by some
members of the public who are unhappy with receiving
tickets and would therefore not be likely to retaliate
with immediate violence during such an interaction.
In reviewing the entire context of the interaction, we
therefore find that because McCargo was unlikely to
retaliate with immediate violence to the conduct for
which the defendant was charged, the defendant’s
words were not ‘‘fighting words,’’ upon which he might
appropriately be convicted of breach of the peace. The
defendant’s conviction of breach of the peace in the
second degree must therefore be reversed.
II
The defendant next claims that the evidence was
insufficient to prove him guilty of tampering with a
witness in violation of § 53a-151. That statute 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 him-
self from any official proceeding.’’ General Statutes
§ 53a-151. ‘‘[T]he witness tampering statute has two
requirements: (1) the defendant believes that an official
proceeding is pending or about to be instituted; and (2)
the defendant induces or attempts to induce a witness to
engage in the proscribed conduct.’’ (Internal quotation
marks omitted.) State v. O’Donnell, 174 Conn. App. 675,
690, 166 A.3d 646, cert. denied, 327 Conn. 956, 172 A.3d
205 (2017).
The defendant, however, has construed the state’s
charge as one of tampering with a witness by way of
threatening conduct. He argues that his e-mail to
McCargo’s supervisor did not constitute a ‘‘true threat,’’
and thus is entitled to first amendment protection, citing
State v. Sabato, 321 Conn. 729, 742, 138 A.3d 895 (2016),
for the proposition that ‘‘a defendant whose alleged
threats form the basis of a prosecution under any provi-
sion of our Penal Code . . . could be convicted as
charged only if his statements . . . constituted a true
threat, that is, a threat that would be viewed by a reason-
able 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.) Because the state did not
claim that the defendant tampered with a witness by
threatening him, his argument that his words did not
constitute a ‘‘true threat’’ is unavailing.
‘‘The language of § 53a-151 plainly warns potential
perpetrators that the statute applies to any conduct that
is intended to prompt a witness . . . to refrain from
testifying in an official proceeding that the perpetrator
believes to be pending or imminent. The legislature’s
unqualified use of the word ‘induce’ clearly informs
persons of ordinary intelligence that any conduct,
whether it be physical or verbal, can potentially give
rise to criminal liability. Although the statute does
not expressly mandate that the perpetrator intend to
cause the witness to . . . withhold his testimony, the
implicit requirement is apparent when the statute is
read as a whole. . . . The legislature’s choice of the
verb ‘induce’ connotes a volitional component of the
crime of tampering that would have been absent had
it employed a more neutral verb such as ‘cause.’ Fur-
thermore, the statute’s application to unsuccessful, as
well as successful, attempts to induce a witness to ren-
der false testimony [or refrain from testifying] supports
our conclusion that the statute focuses on the mental
state of the perpetrator to distinguish culpable conduct
from innocent conduct.’’ (Citations omitted; emphasis
added.) State v. Cavallo, 200 Conn. 664, 668–69, 513
A.2d 646 (1986). ‘‘Although Cavallo discusses § 53a-151
in the context of inducing someone to testify falsely or
to refrain from testifying, we conclude that its holding
that the language of § 53a-151 plainly warns potential
perpetrators applies equally to situations in which a
defendant attempts to induce someone to absent him-
self or herself from a proceeding.’’ State v. Bennett-
Gibson, 84 Conn. App. 48, 57–58 n.9, 851 A.2d 1214,
cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). ‘‘[A]
defendant is guilty of tampering with a witness only if
he intends that his conduct directly cause a particular
witness to testify falsely or to refrain from testifying at
all.’’ State v. Cavallo, supra, 672.
In State v. Bennett-Gibson, this court stated that ‘‘[t]o
prove inducement or an attempt thereof, the evidence
before the jury must be sufficient to conclude that the
defendant’s conduct was intended to prompt [the com-
plainant] to absent herself from the proceeding. . . .
Intent may be, and usually is, inferred from the defen-
dant’s verbal or physical conduct. . . . Intent may also
be inferred from the surrounding circumstances. . . .
The use of inferences based on circumstantial evidence
is necessary because direct evidence of the accused’s
state of mind is rarely available. . . . Furthermore, it
is a permissible, albeit not a necessary or mandatory,
inference that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Citation omitted;
emphasis omitted; footnote omitted; internal quotation
marks omitted.) State v. Bennett-Gibson, supra, 84
Conn. App. 53.
A defendant need not contact a witness directly to
be convicted under § 53a-151. In State v. Carolina, 143
Conn. App. 438, 69 A.3d 341, cert. denied, 310 Conn.
904, 75 A.3d 31 (2013), this court upheld the conviction
of a defendant who had written a letter to his cousin
in which he asked his cousin to pass along scripted
false testimony to a potential witness against him. Id.,
440–42. The letter was intercepted by a correction offi-
cer and did not reach the cousin; therefore, the witness
did not become aware of the defendant’s scripted testi-
mony. Id., 444. The defendant claimed that ‘‘[t]he letter
was an attempt to induce [his] cousin to induce [the
witness] to testify falsely,’’ but since the letter never
reached the witness, the witness ‘‘was never aware of
the defendant’s attempts to induce her to testify falsely.’’
(Internal quotation marks omitted.) Id., 442. This court
upheld the defendant’s conviction under § 53a-151, not-
ing that ‘‘[t]he purpose of the statute would be thwarted
if a defendant could avoid liability by inducing false
testimony indirectly through an intermediary instead
of communicating directly with the witness himself.’’
Id., 445.
In this case, the trial court had ample evidence that
the defendant intended to induce McCargo to absent
himself from the court proceeding. The state presented
evidence that the defendant sent an e-mail to McCargo’s
supervisor implying that he would press felony charges
against McCargo and cause McCargo to lose his job if
he appeared in court to testify, but that he would let
the matter drop if McCargo did not appear in court to
testify. The defendant’s claim that his e-mail did not
constitute a ‘‘true threat’’ against McCargo is unavailing.
The state was not required to prove, nor was the trial
court required to find, that the defendant threatened
McCargo in order to establish that he sought to induce
him not to testify. The language of the defendant’s e-mail
clearly indicates that the defendant intended to induce
McCargo not to appear in court, insofar as it stated: ‘‘It
goes without mention that if your meter maid does not
show up in court this case will be over and everyone
can go peacefully on their own way, no harm, no foul,
no fallout’’ and ‘‘[p]erhaps the judge will remand him
to custody right then and there from his witness chair?
Obviously not if he is not there.’’ That is all that is
required for a conviction on this charge. We therefore
affirm the defendant’s conviction of tampering with
a witness.
The judgment is reversed only as to the defendant’s
conviction of breach of the peace in the second degree
and the case is remanded with direction to render a
judgment of acquittal on that charge and to resentence
the defendant on the charge of tampering with a wit-
ness; the judgment is affirmed in all other respects.
In this opinion, DiPENTIMA, C. J., concurred.
1
The court took judicial notice that there was a scheduled court date
related to the breach of peace charge on March 12, 2015.
2
The spelling and capitalization in the e-mail as quoted are per the original.
3
On appeal, the defendant did not pursue his claim that his e-mail was
protected speech as a matter of public concern.
4
The defendant also claims his conduct was protected by article first,
§§ 3, 4 and 14, of the Connecticut constitution. Because this claim is not
independently briefed, we do not reach the defendant’s claim pursuant to
the Connecticut constitution. See, e.g., State v. Outlaw, 216 Conn. 492, 501
n.6, 582 A.2d 751 (1990).
5
Our Supreme Court also noted that ‘‘[a] proper examination of the context
also considers those personal attributes of the speaker and the addressee
that are reasonably apparent because they are necessarily a part of the
objective situation in which the speech was made. . . . Courts have, for
example, considered the age, gender, race, and status of the speaker.’’ (Cita-
tions omitted.) Id., 241–42.
6
Our dissenting colleague notes, as did the trial court, that the word
‘‘nigger’’ is vile and offensive, and that its use perpetuates historically dis-
criminatory attitudes about race that regrettably persist in modern society.
We agree entirely with those observations. We reiterate, however, that,
under our law, it is the context in which such slurs are uttered that deter-
mines whether or not their utterance is so likely to provoke a violent
response as to constitute fighting words, for which criminal sanctions may
constitutionally be imposed.
7
The dissent also points to two cases cited in Baccala, in which it contends
that the word ‘‘nigger’’ was held to constitute a constitutionally unprotected
fighting word. The Baccala court cited the two cases, In re Spivey, 345 N.C.
404, 480 S.E.2d 693 (1997), and In re John M., 201 Ariz. 424, 36 P.3d 772
(App. 2001), for the related propositions that a proper contextual evaluation
of speech as alleged fighting words involves consideration of: the personal
characteristics of the speaker and the person to whom his words are
addressed, such as their ages, genders, races and respective statuses; State
v. Baccala, supra, 326 Conn. 241–43; and the likelihood that the average
listener with those personal characteristics would respond with violence to
such speech if it were addressed to him in the circumstances of the case
before the court. Id., 243. We respectfully submit that in those two cases,
it was the particular circumstances in which the word ‘‘nigger’’ was uttered
that made its use unprotected by the first amendment, and that nothing in
those cases suggests that that word is always an unprotected fighting word.