State v. Taveras ( 2018 )

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STATE v. TAVERAS—DISSENT
ELGO, J., dissenting. In the present case, the trial
court found, by a preponderance of the evidence, that
the defendant, Kerlyn M. Taveras, violated the terms of
his probation by committing the misdemeanor of breach
of the peace in the second degree in violation of General
Statutes § 53a-181 (a) (1).1 I believe that the testimonial
and documentary evidence admitted at the probation
revocation hearing substantiates that finding. Accord-
ingly, I respectfully dissent.
At the outset, I note a basic point of disagreement
with the majority, as I do not believe that the defendant
was found in violation of probation solely on the basis
of the words that he used on the afternoon of March
11, 2014. To the contrary, I believe that a fair reading
of the trial court’s oral decision indicates that the court
predicated its finding on the defendant’s conduct that
afternoon. As the majority acknowledges, the court in
its decision explicitly stated that its judgments were
based in part on ‘‘the threatening nature and demeanor
of’’ the defendant. In my view, the critical question
is whether the record contains evidence to support a
finding that the defendant, through his conduct and
demeanor as the events of March 11, 2014, unfolded,
engaged in threatening behavior in a public place, as
§ 53a-181 (a) (1) requires.
Before turning to the evidence admitted at the proba-
tion revocation hearing, I note the well established stan-
dard that governs review of the evidentiary phase of
such proceedings. ‘‘The law governing the standard of
proof for a violation of probation is well settled. . . .
[A]ll that is required in a probation violation proceeding
is enough to satisfy the court within its sound judicial
discretion that the probationer has not met the terms
of his probation. . . . It is also well settled that a trial
court may not find a violation of probation unless it
finds that the predicate facts underlying the violation
have been established by a preponderance of the evi-
dence at the hearing—that is, the evidence must induce
a reasonable belief that it is more probable than not
that the defendant has violated a condition of his or
her probation. . . . In making its factual determina-
tion, the trial court is entitled to draw reasonable and
logical inferences from the evidence. . . . Accord-
ingly, [a] challenge to the sufficiency of the evidence
is based on the court’s factual findings. The proper
standard of review is whether the court’s findings were
clearly erroneous based on the evidence. . . . A court’s
finding of fact is clearly erroneous and its conclusions
drawn from that finding lack sufficient evidence when
there is no evidence in the record to support [the court’s
finding of fact] . . . or when although there is evidence
to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . In making this determi-
nation, every reasonable presumption must be given
in favor of the trial court’s ruling.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
State v. Maurice M., 303 Conn. 18, 26–27, 31 A.3d 1063(2011). Furthermore, as with any evidential insuffi-
ciency claim, we do not ask whether there is a reason-
able view of the evidence that would result in a finding
favorable to the defendant; rather, we ask whether there
is a reasonable view of the evidence that supports the
finding of the trier of fact. See State v. Revels, 313 Conn.
762, 778, 99 A.3d 1130 (2014), cert. denied, U.S. ,
135 S. Ct. 1451, 191 L. Ed. 2d 404 (2015).
The evidence before the trial court included the testi-
mony of the defendant’s probation officer, Christopher
Kelly, and Monica Bevilaqua, the director of the pre-
school where the altercation in question transpired.
Also admitted into evidence were various documents
regarding the defendant’s underlying convictions, as
well as the violation of probation arrest warrant applica-
tion (application) prepared by Kelly, which was admit-
ted as a full exhibit without any objection by the
defendant.2
As noted in the majority opinion, the defendant
arrived at the preschool approximately forty minutes
late on the afternoon of March 11, 2014.3 When he
arrived, Bevilaqua testified that the defendant was ‘‘irri-
tated and not happy with staff,’’ and ‘‘already escalated.’’
After picking up his son from his classroom, Kelly
stated, in his sworn affidavit included in the application,
that the defendant ‘‘became extremely agitated’’ and
then ‘‘began to argue with staff.’’ That affidavit further
indicates that the argument grew so heated that ‘‘[s]taff
told [the defendant] that he had to leave because he
was arguing with staff in the front lobby in front of
other children and their parents.’’4 Bevilaqua testified
that, as the defendant exited the preschool, the assistant
education manager ‘‘said something back to him.’’ In
response, Bevilaqua testified, the defendant, who was
then outside the locked door, ‘‘turned and said, better
watch yourself, you better be careful . . . .’’ In the
affidavit contained in the application, Kelly stated that
the defendant was yelling as he made those remarks.5
As Kelly’s affidavit indicates, preschool staff reported
that the defendant was ‘‘so enraged’’ and ‘‘intimidating’’
at that time. Moreover, after uttering those remarks,
Bevilaqua testified that the defendant attempted ‘‘to get
back in’’ the preschool, but could not penetrate the
locked door. Although the majority correctly notes that
there is no evidence describing precisely how the defen-
dant attempted to open the door, I believe the critical
import of the evidence of his attempted reentry is that
it demonstrates that the defendant’s shouted remarks
not only were made while he was in an enraged state,
but were accompanied by a physical gesture that the
court reasonably could infer to be aggressive in nature.
The court also was presented with evidence of the
reaction that the defendant’s conduct and demeanor
caused among preschool staff that afternoon. Bevilaqua
testified that when she arrived at the preschool shortly
after the altercation, her staff informed her that they
had been threatened by the defendant and, as a result,
were ‘‘shaken up’’ and very concerned. Bevilaqua testi-
fied that she personally had observed the defendant
behave in a threatening manner on a prior occasion,
which informed her response to the reports of her staff.
Bevilaqua explained that the preschool’s ‘‘internal pol-
icy’’ was to contact police ‘‘when something escalates’’
to the point of ‘‘[s]taff being threatened.’’ Consistent
with that policy, Bevilaqua testified that she contacted
the Danbury Police Department, whose officers took
statements from staff members. Questioned as to how
she differentiates between ‘‘a small threat, like . . .
I hate this place,’’ and something ‘‘larger’’ and more
substantial, Bevilaqua testified that she was ‘‘trained to
know the difference.’’ In making the determination to
contact law enforcement, Bevilaqua also indicated that
she was cognizant that this ‘‘certainly wasn’t our first
escalated interaction’’ with the defendant.
Bevilaqua was present as police officers took state-
ments from her staff regarding the incident. She also
confirmed that the altercation had an effect on people
within the preschool for the remainder of that day.
In light of the defendant’s conduct at the preschool,
Bevilaqua asked the Danbury Police Department to
ensure that the defendant ‘‘not be allowed back on’’ the
preschool property.6 She also looked into ‘‘whether or
not we could get a restraining order’’ against the defen-
dant because she was ‘‘that concerned about his behav-
ior.’’ Later that night, Bevilaqua was informed by an
officer of the Danbury Police Department that the
defendant had been arrested. Despite that arrest, Bevila-
qua nevertheless took further actions to protect the
preschool, testifying that ‘‘[w]e hired a police officer to
be there the next morning.’’
At the probation revocation hearing, Kelly testified
that ‘‘[the defendant] and I had a conversation after his
breach of peace arrest’’ stemming from the defendant’s
conduct at the preschool on March 11, 2014. In that
conversation, Kelly and the defendant discussed the
defendant’s need ‘‘to cool it’’ and ‘‘not be as confronta-
tional in situations.’’ Also in evidence before the trial
court was documentation of the convictions underlying
the defendant’s probation. The record indicates that the
defendant had pleaded guilty, under separate dockets,
to two counts of threatening in the second degree in
violation of General Statutes § 53a-62 and one count of
assault in the third degree in violation of General Stat-
utes § 53a-61 (a) (1). That evidence was admitted with-
out objection by the defendant and properly informed
the court’s perspective as trier of fact in the present
case. See State v. Megos, 176 Conn. App. 133, 148, 170
A.3d 120 (2017).
In light of the foregoing evidence, I believe that the
court reasonably could determine that the defendant,
‘‘with intent to cause inconvenience, annoyance or
alarm, or recklessly creating a risk thereof,’’ engaged
in threatening behavior in a public place in violation of
§ 53a-181 (a) (1). Significantly, the present case involves
not a criminal prosecution, but a probation revocation
hearing, which ‘‘is not a criminal proceeding.’’ Minne-
sota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79
L. Ed. 2d 409 (1984). Rather, ‘‘the probation revocation
procedure established by [General Statutes] § 53a-32 is
akin to a civil proceeding.’’ State v. Davis, 229 Conn.
285, 295, 641 A.2d 370 (1994). Criminal cases such as
State v. Krijger, 313 Conn. 434, 97 A.3d 946 (2014),7 in
which the beyond a reasonable doubt burden of proof
applied, therefore are distinguishable from the present
case, as ‘‘a probation violation need be proven only by
a preponderance of the evidence’’ and ‘‘need not be
sufficient to sustain a violation of a criminal law.’’
(Emphasis altered; internal quotation marks omitted.)
State v. Megos, supra, 176 Conn. App. 139; see also State
v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988) (‘‘the
authorities are virtually unanimous in concluding that
the standard of proof used in a criminal trial, namely
‘beyond a reasonable doubt,’ is not applicable to a pro-
bation revocation hearing’’). At a probation revocation
hearing, the state, therefore, must present evidence that
induces ‘‘a reasonable belief that it is more probable
than not that the defendant has violated a condition
of his or her probation.’’ State v. Davis, supra, 302.
Measured by that standard, I believe the evidence
before the court sufficiently established a violation of
§ 53a-181 (a) (1).
In reaching that conclusion, I am mindful of the trial
court’s superior vantage point, as finder of fact, to
‘‘credit and weigh’’ the evidence before it. Rockhill v.
Danbury Hospital, 176 Conn. App. 39, 52 n.6, 168 A.3d
630 (2017); accord Pagano v. Ippoliti, 245 Conn. 640,
654, 716 A.2d 848 (1998) (‘‘[t]he trial court, having heard
the testimony and observed the witnesses, was in a
position far superior to ours to judge the evidentiary
record as a whole’’). By their very nature, appellate
tribunals are not privy to the inflections in a witness’
voice or the body language that the printed record can-
not capture. For that reason, courts like ours afford a
great degree of deference to the subsidiary findings and
credibility assessments of the trial court. See Jones v.
State, 328 Conn. 84, 96–97, 177 A.3d 534 (2018). In its
oral decision, the court credited Bevilaqua’s testimony,
finding that she took steps to secure the preschool on
March 11, 2014, which included immediately contacting
law enforcement, due to the ‘‘threatening nature and
the demeanor’’ of the defendant that afternoon. In so
evaluating Bevilaqua’s testimony, the court observed
details that the record before us does not reflect. We
therefore are obligated to defer to the court’s assess-
ment of the credibility of, and proper weight accorded
to, that evidence.
Furthermore, it is fundamental to our law that the
finder of fact is entitled to draw reasonable inferences
from the evidence before it. See State v. Berger, 249
Conn. 218, 224, 733 A.2d 156 (1999) (trier of fact may
draw whatever inferences from evidence it deems rea-
sonable or logical). When a trial court ‘‘makes a factual
determination of whether a condition of probation has
been violated,’’ it likewise is free to ‘‘draw reasonable
and logical inferences from the evidence.’’ (Internal
quotation marks omitted.) State v. Faraday, 268 Conn.
174, 185, 842 A.2d 567 (2004). In its oral decision, the
court expressly noted its ability to make such inferences
as part of its finding that the defendant violated a condi-
tion of his probation. Our obligation to make every
reasonable presumption in favor of the trial court’s
finding that the defendant violated the terms of his
probation; State v. Hill, 256 Conn. 412, 425–26, 773 A.2d
931 (2001); encompasses such inferences.
In his principal appellate brief, the defendant argues
that ‘‘if the defendant shouted, ‘you better watch your-
self, you better be careful,’ to [a staff member] as she
attempted to cross the street in front of an out-of-con-
trol truck, her reaction would not be fear or offense
but gratitude.’’ The defendant also offers a series of
purportedly ‘‘plausible reading[s]’’ of those remarks.
What the defendant fails to appreciate is the precise
context in which his remarks arose. This is not a case
of a bystander alerting a pedestrian to an errant vehicle.
Nor is it a case, as the defendant’s counsel hypotheti-
cally suggested at the revocation hearing, of a parent
who simply ‘‘comes to the school [and] gets mad and
says . . . you better watch it . . . .’’ Rather, the evi-
dence adduced at the revocation hearing indicates that
this is a case in which those remarks were made by an
individual on probation for committing, inter alia, the
crime of threatening in the second degree. This is a
case in which the evidence indicates that the defendant
arrived at the preschool ‘‘already escalated’’ and, after
picking his son up from his classroom, engaged in an
argument with preschool staff in front of other students
and parents. The record further indicates that while
arguing with staff, the defendant ‘‘became extremely
agitated,’’ to the point that staff informed the defendant
that he had to leave the premises. In addition, the record
indicates that when the defendant made the remarks
in question, he was yelling at the preschool staff, and
then immediately attempted to penetrate the locked
door and reenter the preschool, conduct which the
court reasonably could infer to be an aggressive physi-
cal gesture.
The court was presented with evidence that the staff
present during the altercation with the defendant
described him as ‘‘so enraged’’ and ‘‘intimidating’’ at that
time. The court also heard testimony that the preschool
staff was so shaken and alarmed by the behavior of
the defendant that they called the police, explored the
possibility of obtaining a restraining order against the
defendant, and then hired a police officer to be present
at the preschool the following day. The defendant’s
probation officer testified that, following that incident,
he and the defendant discussed the defendant’s conduct
at the preschool and his need to ‘‘cool it’’ and not be
so ‘‘confrontational.’’
Given that evidence, which provides the necessary
context in which this altercation arose, I believe that the
trial court reasonably could find, by a preponderance of
the evidence, that the defendant violated his probation
pursuant to § 53a-32 (a) by having committed a breach
of the peace in the second degree in violation of § 53a-
181 (a) (1). In its appellate brief, the state analogizes
the present case to State v. Simmons, 86 Conn. App.
381, 389, 861 A.2d 537 (2004) (conviction based on
defendant’s conduct and not his speech), cert. denied,
273 Conn. 923, 871 A.2d 1033, cert. denied, 546 U.S. 822,
126 S. Ct. 356, 163 L. Ed. 2d 64 (2005),8 and submits
that the defendant’s threatening remarks ‘‘were simply
a component of his disruptive and aggressive conduct
while the preschool was still in session.’’ I agree.
Were this a criminal prosecution governed by the
beyond a reasonable doubt standard, the evidence in
the record might well be insufficient to sustain a finding
that the defendant violated § 53a-181 (a) (1). This case
involves a probation revocation hearing, however, at
which a less burdensome standard of proof applies. In
such proceedings, the trial court, as finder of fact, draws
inferences and makes predicate factual findings to
which every reasonable presumption must be given in
favor of their correctness. State v. Maurice M., supra,303 Conn. 26–27. Applying that standard to the evidence
in the record, I would affirm the judgments of the trial
court finding the defendant in violation of the terms of
his probation.9
1
General Statutes § 53a-181 (a) provides: ‘‘A person is guilty of breach of
the peace in the second degree when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, such person: (1)
Engages in fighting or in violent, tumultuous or threatening behavior in a
public place; or (2) assaults or strikes another; or (3) threatens to commit
any crime against another person or such other person’s property; or (4)
publicly exhibits, distributes, posts up or advertises any offensive, indecent
or abusive matter concerning any person; or (5) in a public place, uses
abusive or obscene language or makes an obscene gesture; or (6) creates
a public and hazardous or physically offensive condition by any act which
such person is not licensed or privileged to do. For purposes of this section,
‘public place’ means any area that is used or held out for use by the public
whether owned or operated by public or private interests.’’
I recognize that the judgment file does not state precisely which subdivi-
sion of § 53a-181 (a) the court found applicable to the present case. At the
same time, I agree with the majority that the state’s theory of the case at
trial was that the defendant had committed a violation of § 53a-181 (a) (1)
due to his threatening behavior at the preschool on the afternoon of March
11, 2014. I also agree with the majority that the court, in its oral decision,
ultimately found that the defendant ‘‘violated his probation by committing
the crime of breach of the peace in the second degree on the basis of his
‘threatening nature and . . . demeanor’ at the preschool.’’ In light of the
foregoing, the court’s decision reasonably may be construed to conclude
that the defendant violated § 53a-181 (a) (1). Furthermore, the defendant
did not request an articulation to clarify the court’s determination; cf. State
v. Pierce, 64 Conn. App. 208, 210, 779 A.2d 233 (2001) (defendant requested
articulation of precise crime on which court found him in violation of
probation); and the defendant in this appeal has not claimed that he lacked
adequate notice of the grounds on which he was found to have violated his
probation. See State v. Maye, 70 Conn. App. 828, 839, 799 A.2d 1136 (2002).
2
At the first day of the probation revocation hearing, the court inquired
whether the violation of probation arrest warrant application was a full
exhibit. In response, the state’s attorney stated: ‘‘I have no objection to it
being a full exhibit, Your Honor. I know [defense] counsel had referred to
the court having it. I don’t know if counsel has any objection to the violation
of probation [application] being a full exhibit. [Defense counsel]?’’ The
defendant’s counsel, Attorney Gerald Klein, at that time stated, ‘‘Oh yes. I
have no objection.’’ The violation of probation arrest warrant application
then was admitted as a full exhibit and marked as court exhibit A. In this
appeal, the defendant has raised no claim with respect to the admission of
that application or the contents thereof.
3
Bevilaqua testified that this was not the first time that the defendant
had been late to pick up his son from the preschool and acknowledged that
there had been prior incidents with the defendant at the preschool. She
further testified that, when she received the initial report of the altercation
with the defendant, she hurried back to the preschool ‘‘because knowing
what we knew about the family and the situation, I knew it would get
escalated.’’
4
I recognize that Bevilaqua was asked whether the defendant had used
‘‘[t]hreatening words’’ prior to exiting the doors of the preschool, and that
she responded, ‘‘[a]t that point they were not.’’ Bevilaqua nonetheless did
not testify that the defendant’s behavior was not threatening at that time.
5
Kelly’s sworn statement in his affidavit, which was admitted as part of
court exhibit A, undermines the defendant’s claim in his reply brief that
there was no evidence that he ‘‘yelled, screamed, [or] raised his voice’’ when
making those remarks.
6
In his affidavit, Kelly stated that, following the defendant’s arrest on the
charge of breach of the peace in the second degree, the defendant ‘‘was
advised not to return to the [preschool] again, otherwise he would be arrested
for criminal trespass.’’
7
In State v. Krijger, supra, 313 Conn. 458, the defendant immediately
‘‘apologized for his behavior’’ following a heated confrontation with an
attorney and stated that ‘‘he hoped it would not adversely affect their working
relationship.’’ As our Supreme Court emphasized, ‘‘[t]he defendant’s contri-
tion immediately following the incident is decidedly at odds with the view
that, just moments beforehand, he had communicated a serious threat
. . . .’’ Id. No such contrition was expressed by the defendant in the pre-
sent case.
8
In Simmons, the beyond a reasonable doubt metric applied. State v.
Simmons, supra, 86 Conn. App. 385–86. The present case, by contrast,
involves a preponderance of the evidence determination.
9
I recognize that the defendant has raised other claims in this appeal,
including ones pertaining to the admission of hearsay testimony. Having
reviewed those arguments in light of applicable law, I perceive no error on
the part of the trial court.