State v. Book ( 2015 )

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STATE OF CONNECTICUT v. ETHAN BOOK
(AC 35947)
Gruendel, Lavine and Keller, Js.
Argued October 23, 2014—officially released March 3, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number one,
Povodator, J.)
Ethan Book, self-represented, the appellant
(defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Mitchell Rubin, senior assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The self-represented defendant,
Ethan Book, appeals from the judgment of conviction,
rendered after a jury trial, of harassment in the second
degree in violation of General Statutes § 53a-183 (a)
(2). On appeal, the defendant claims that (1) § 53a-183
(a) (2) is unconstitutional, (2) there was insufficient
evidence to support the conviction, (3) the court
improperly failed to address pretrial motions, (4) the
court improperly excluded evidence, (5) the court
improperly denied the defendant’s request for standby
counsel, (6) the court erred by not bifurcating the trial
to deal with the validity of the defendant’s prior convic-
tion, (7) the court erred by limiting the defendant’s
opening statement, (8) the court erred by rejecting the
defendant’s requests to charge the jury, (9) the court
erred when it limited his closing arguments, and (10)
the court erred when it instructed the jury. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. In the late 1990s, the defendant and the complain-
ant, Martha Villamil, met while operating similar busi-
nesses in Fairfield County. They later developed a
personal relationship. After going on several dates, the
complainant explained to the defendant that she did not
want to see him anymore. The defendant nevertheless
continued to contact the complainant, who ultimately
filed a complaint with police. On the basis of that com-
plaint, the defendant was charged with thirty-four
counts of harassment in the second degree. In 2001,
the defendant was found guilty on twenty-four of the
counts and sentenced to five years imprisonment, exe-
cution suspended after one year, and one year of proba-
tion. As a condition of his probation, the defendant was
to have no contact with the complainant.
In March, 2003, while incarcerated at the Bridgeport
Correctional Center, the defendant sent a letter to the
complainant, which she received and opened. She read
a portion of the letter before becoming fearful and
afraid. She then filed both a complaint with a victim’s
advocate, as well as a statement with the Stamford
Police Department. As a result, the defendant was
charged with two counts of harassment in the second
degree in violation of § 53a-183 (a). The court later
dismissed one of the counts on the ground that the
charge was brought beyond the statute of limitations.
In 2012, a trial proceeded on the remaining count, and
the jury returned a guilty verdict. The court then sen-
tenced the defendant to ninety days imprisonment, exe-
cution suspended after thirty days, followed by one
year of probation. This appeal followed.
I
The defendant first claims that his conviction cannot
stand because § 53a-183 (a) (2) is unconstitutional on
its face.1 Specifically, he claims that the statute is over-
broad because it prohibits certain forms of speech pro-
tected under the first amendment to the United States
constitution. We disagree.
‘‘The constitutionality of a statute presents a question
of law over which our review is plenary. . . . It is well
established that a validly enacted statute carries with
it a strong presumption of constitutionality, [and that]
those who challenge its constitutionality must sustain
the heavy burden of proving its unconstitutionality
beyond a reasonable doubt . . . . The court will
indulge in every presumption in favor of the statute’s
constitutionality . . . . Therefore, [w]hen a question
of constitutionality is raised, courts must approach it
with caution, examine it with care, and sustain the
legislation unless its invalidity is clear.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. McKen-
zie-Adams, 281 Conn. 486, 500, 915 A.2d 822, cert.
denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148(2007), overruled in part on other grounds by State v.
Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012).
The defendant’s claim that § 53a-183 (a) (2) is uncon-
stitutional is not a novel one. On several prior occasions,
our appellate courts have rejected first amendment
challenges to the harassment statute. In each case, the
court upheld the statute when it was applied to conduct,
rather than speech. See State v. Murphy, 254 Conn. 561,
568, 757 A.2d 1125 (2000) (‘‘§ 53a-183 [a] [2] proscribes
harassing conduct via mail and does not seek to regulate
the content of communications made by mail’’); State
v. Bell, 55 Conn. App. 475, 480–81, 739 A.2d 714 (‘‘To
run afoul of the statute, a telephone call must be made
not merely to communicate, but with intent to harass,
annoy or alarm and in a manner likely to cause annoy-
ance or alarm. Whether speech actually occurs is irrele-
vant, since the statute proscribes conduct . . . .’’
[Internal quotation marks omitted.]), cert. denied, 252
Conn. 908, 743 A.2d 619 (1999); State v. Anonymous
(1978-4), 34 Conn. Supp. 689, 696, 389 A.2d 1270 (1978)
(‘‘it is the manner and means employed to communicate
. . . rather than [the] content [of the messages]’’).2
Most recently, in State v. Moulton, 310 Conn. 337, 362–
63, 78 A.3d 55 (2013), our Supreme Court concluded
that § 53a-183 (a) may be constitutionally applied to
speech if the content of that speech rises to the level
of a true threat, which is unprotected by the first amend-
ment. In the present case, the defendant has articulated
no reason to depart from prior case law, and as a result,
we are bound by this precedent.3 We therefore must
reject the defendant’s claim that the statute is unconsti-
tutional.
II
The defendant next claims that the evidence pre-
sented at trial was insufficient to support a determina-
tion of guilt beyond a reasonable doubt. We disagree.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
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 con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . We note that the
jury must find every element proven beyond a reason-
able doubt in order to find the defendant 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 jury to conclude that a basic fact or an
inferred fact is true, the jury 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 defen-
dant guilty of all the elements of the crime charged
beyond a reasonable doubt.’’ (Citation omitted; internal
quotation marks omitted.) State v. Perkins, 271 Conn.
218, 246, 856 A.2d 917 (2004).
The information charged the defendant with harass-
ment in the second degree in violation of § 53a-183 (a)
(2). The statute provides in relevant part: ‘‘A person is
guilty of harassment in the second degree when . . .
with intent to harass, annoy or alarm another person,
he communicates with a person by telegraph or mail
. . . (2) in a manner likely to cause annoyance or alarm
. . . .’’ General Statutes § 53a-183 (a). The state was
thus required to prove both that the defendant commit-
ted a physical act, i.e., sent a communication in a man-
ner likely to cause annoyance or alarm, and had the
applicable mental state, i.e., the specific intent to
harass, annoy or alarm. In the present case, the defen-
dant does not dispute that he sent the March, 2003 letter
to the complainant.4 He does however, contend that the
letter was not sent in a manner likely to cause annoy-
ance or alarm and that he lacked the requisite intent
to harass when he mailed the letter.
At trial, the state prosecuted the defendant solely on
the basis of his action in sending the letter, rather than
on the contents of the communication, and the court
charged the jury accordingly.5 The court also instructed
the jury, consistent with our state’s law at the time,
that the statute did not criminalize the content of the
defendant’s speech.6 Although our Supreme Court in
State v. Moulton, supra, 310 Conn. 337, construed the
statute to encompass unprotected speech such as true
threats, the present case was not tried on such a theory,
nor was Moulton decided at the time of trial.7 As a result,
we review only the defendant’s conduct in determining
whether it was sufficient to support a conviction under
the harassment statute.
A
We must first determine whether the defendant sent
the letter ‘‘in a manner likely to cause annoyance or
alarm.’’ Our courts have concluded that it is the act of
the communication and the circumstances surrounding
that act, such as the time and the number of communica-
tions, that may be considered in determining whether
the communication was made in a manner likely to
cause annoyance or alarm. State v. Moulton, supra, 310
Conn. 357–58.
In reviewing the evidence, we conclude that the tim-
ing and surrounding circumstances support the jury’s
finding that the defendant’s letter was likely to cause
alarm or annoyance to the complainant. As discussed
previously, the defendant mailed the letter to the
woman who had been the complainant in his 2001
harassment case, where he had been convicted of
twenty-four counts of harassment. He sent the letter in
2003 while serving a prison sentence following the 2001
convictions. Additionally, the defendant addressed the
letter to the complainant, who had previously stated
that she did not want to speak to him, had reported
him to the police, and had testified against him at his
2001 trial. Given the timing and surrounding circum-
stances, it is reasonable for the jury to have found,
beyond a reasonable doubt, that the single letter from
the defendant would likely cause the complainant alarm
or annoyance.
B
We next look to whether the defendant sent the letter
with the specific intent to harass, alarm or annoy.
‘‘Intent is generally proven by circumstantial evidence
because direct evidence of the accused’s state of mind
is rarely available. . . . Therefore, intent is often
inferred from conduct . . . and from the cumulative
effect of the circumstantial evidence and the rational
inferences drawn therefrom.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Mejia, 233 Conn.
215, 223, 658 A.2d 571 (1995). When a prosecutor seeks
to prove the elements of § 53a-183 by way of the defen-
dant’s conduct, the fact finder ‘‘may consider the lan-
guage used in the communication in determining . . .
that the defendant intended to harass, annoy or alarm,
and that he did so in a manner likely to cause annoyance
or alarm.’’ State v. Murphy, supra, 254 Conn. 569.
In reviewing the evidence, we conclude that the jury
reasonably could have found, beyond a reasonable
doubt, that the defendant had the requisite intent to
harass, annoy, or alarm the complainant. The jury heard
the complainant’s testimony regarding her history with
the defendant. She testified that prior to the 2001 harass-
ment charges, she had asked the defendant several
times to stop contacting her. She testified that the defen-
dant continued to call her and would often park his car
in front of her house. She also explained that she had
filed a complaint with the police and later testified
against the defendant at his 2001 trial. Additionally, the
defendant’s 2003 letter was a full exhibit in evidence.
Within the letter, the defendant admitted that the Stam-
ford Police Department had told him that the complain-
ant did not want to hear from him and that he should
cease contact with her.8 The letter also cites a passage
from the Bible,9 requests the complainant to recant her
earlier statement to the police,10 and makes reference to
the well-being of her two children.11 Finally, a transcript
from the defendant’s 2001 sentencing hearing was
admitted as a full exhibit in evidence. At the hearing,
a victim’s advocate read a statement by the complainant
expressing that she will ‘‘always be afraid of the defen-
dant and live in constant fear that he will start harassing
me again.’’ (Internal quotation marks omitted.) At the
conclusion of the hearing, the defendant was sentenced.
As a condition of his probation, he was to have ‘‘no
contact whatsoever with the victim . . . .’’ Given the
cumulative impact of the testimony and exhibits, the
jury could reasonably have found that the defendant
sent the letter with the intent to harass or alarm the
complainant. See State v. Buhl, 152 Conn. App. 140,
152, 100 A.3d 6 (‘‘[o]n the issue of the defendant’s intent
. . . we must infer it from . . . the circumstances of
[the mailing]’’ [internal quotation marks omitted]), cert.
granted on other grounds, 314 Conn. 942, 103 A.3d 164(2014); see also State v. Cummings, 46 Conn. App. 661,
673, 701 A.2d 663 (‘‘[a]larm’’ defined as ‘‘to strike with
fear: fill with anxiety as to threatening danger or harm’’
[internal quotation marks omitted]), cert. denied, 243
Conn. 940, 702 A.2d 645 (1997).
The defendant argues that he had ‘‘a well reasoned
belief that [his] earlier convictions [were] invalid,’’ that
there were no court-ordered prohibitions against com-
munication during the incarceration period, and that
he contacted the complainant for a legitimate purpose.
These claims have no merit. His belief regarding the
validity of the 2001 conviction and the fact that there
was no prohibition in place at the time are not disposi-
tive on the issue of whether the communication was
sent with the intent to harass, alarm or annoy the com-
plainant. Last, the defendant’s claim that he sent the
letter for a legitimate purpose was properly before the
jury, which was free to determine the credibility of
that testimony. ‘‘[I]t is a jury’s duty to determine the
credibility of witnesses and to do so by observing first-
hand their conduct, demeanor and attitude.’’ State v.
Johnson, 288 Conn. 236, 265, 951 A.2d 1257 (2008). The
jury was free to accord little weight to the defendant’s
stated reason for sending the letter, given the contradic-
tory evidence before it, such as the prior history of the
parties, the contents and context of the letter, and the
testimony of the complainant.
III
The defendant next claims that the court erred in not
ruling on various pretrial motions he filed. Specifically,
the court did not address the defendant’s request for
disclosure, motion for a mistrial, motion to dismiss
substitute information, supplement to motion for a mis-
trial, motion for reconsideration of court ruling to deny
motion to dismiss, and motion for articulation. The
defendant argues that by refusing to address these
motions prior to trial, he was denied due process by the
court. Due to the inadequate brief and record presented
before us, we cannot review this claim on appeal.
‘‘Although we are solicitous of the rights of [self-
represented] litigants . . . [s]uch a litigant is bound by
the same rules . . . and procedure as those qualified
to practice law. . . . [W]e are not required to review
claims that are inadequately briefed. . . . We consis-
tently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . As this court has observed, [a]ssignments of error
which are merely mentioned but not briefed beyond a
statement of the claim will be deemed abandoned and
will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Henderson v. State, 151 Conn. App.
246, 262–63, 95 A.3d 1 (2014).
The defendant’s brief lacks any authority for the prop-
osition that the court was required to address all out-
standing motions prior to the start of trial. His brief
also lacks any authority that supports his claim that a
failure to address a motion prior to trial constitutes a
due process violation. Furthermore, the defendant fails
to provide any analysis as to how, in this particular
case, the court’s refusal to rule on outstanding motions
resulted in substantial prejudice to the defendant at
trial. On the basis of the inadequate briefing of the issue,
we deem this claim abandoned and decline to afford it
review. See Taylor v. Mucci, 288 Conn. 379, 383 n.4,
952 A.2d 776 (2008); Practice Book § 67-4.
IV
The defendant next claims that the court abused its
discretion in determining certain evidence to be inad-
missible. We disagree.
‘‘The standard for review of evidentiary rulings is
well established. [T]he trial court has broad discretion
in ruling on the admissibility . . . of evidence. . . .
The trial court’s ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.’’
(Internal quotation marks omitted.) State v. Carpenter,
275 Conn. 785, 815, 882 A.2d 604 (2005), cert. denied,
547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).
The defendant first challenges the inadmissibility of
a portion of his proffered trial testimony. At trial, the
defendant read a prepared statement. The first sentence
of his statement read, ‘‘[t]his matter deals with a charge
of second degree harassment . . . a nonviolent class
C misdemeanor.’’ The court explained to the defendant
that jurors are not usually told the grade of an offense,
after which the defendant withdrew that portion of the
statement. This claim has not been properly preserved,
as the defendant did not object after the court provided
an explanation for why the statement was inadmissible.
See Practice Book § 60-5; State v. Coleman, 304 Conn.
161, 174, 37 A.3d 713 (2012) (‘‘defendant must plainly
put the trial court on notice as to the specific basis for
his objection’’).
The defendant also claims that the court improperly
determined the following evidence as inadmissible: a
letter and telephone messages sent to the complainant
by the defendant prior to the 2001 trial, a notice of
appeal from the 2001 trial, and a letter the defendant
sent to the complainant’s attorney in March, 2003. First,
the pre-2001 communications the defendant had with
the complainant were properly excluded because they
were relevant only to the prior matter, which had
already reached a final judgment. See Conn. Code Evid.
§ 4-1 (defining relevant evidence as ‘‘evidence having
any tendency to make the existence of any fact that
is material to the determination of the proceeding’’
[emphasis added]). Second, the notice of appeal was
properly excluded on the ground that it represented a
‘‘needless presentation of cumulative evidence.’’ Conn.
Code Evid. § 4-3. The defendant had already testified
that he had appealed from the prior convictions, and
the court found it unnecessary to admit the notice of
appeal form. Finally, the defendant’s letter to the com-
plainant’s attorney was properly excluded as hearsay.
At trial, the defendant failed to meet his burden of
establishing the admissibility of the evidence. New
England Savings Bank v. Bedford Realty Corp., 238
Conn. 745, 753, 680 A.2d 301 (1996) (‘‘the burden is on
the proponent of the evidence, upon timely objection,
to establish that the evidence is admissible’’). The court
excluded the letter, but allowed the defendant to testify
as to the contents of the letter, as well as the fact that
it was mailed. Therefore, we do not conclude that the
court abused its discretion when it made its eviden-
tiary rulings.
V
The defendant next claims that the court abused its
discretion when it denied his request for standby coun-
sel. We disagree.
‘‘[A] defendant does not have a state or federal consti-
tutional right to standby counsel. . . . The standard of
review to be applied when reviewing a denial of a
request for alternate counsel is whether the trial court
abused its discretion in determining that a factual basis
did not exist for granting the request. . . . The appoint-
ment of counsel is governed by Practice Book § 44-
4, which provides that [w]hen a defendant has been
permitted to proceed without the assistance of counsel,
the judicial authority may appoint standby counsel,
especially in cases expected to be long or complicated
or in which there are multiple defendants. A public
defender or special public defender may be appointed
as standby counsel only if the defendant is indigent
and qualifies for appointment of counsel under General
Statutes § 51-296, except that in extraordinary circum-
stances the judicial authority, in its discretion, may
appoint a special public defender for a defendant who
is not indigent. [T]he applicant for public defender ser-
vices bears the burden of proving indigency.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Guitard, 61 Conn. App. 531, 535–37,
765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32(2001).
Under this legal standard, the court did not abuse
its discretion in denying the defendant’s request for
standby counsel. The defendant made his first and only
request for standby counsel at 10 a.m. on the morning
evidence was to begin. In his oral request, the defendant
presented no evidence that he was indigent other than
the bare assertion that his ‘‘personal situation has since
become much more depressed to where . . . [he
believes he would] qualify for a public defender . . . .’’
As the defendant failed to meet the burden of proving
his indigency, it was within the court’s discretion to
reject the request for standby counsel.
VI
The defendant next claims that the court erred by
not bifurcating the trial to deal with the ‘‘distinct issues
of the validity of [his] 2001 conviction . . . .’’ This claim
is without merit, as our courts recognize the well
accepted principle that a court’s jurisdiction terminates
upon the beginning of a defendant’s sentence. State v.
Ramos, 306 Conn. 125, 135, 49 A.3d 197 (2012); see also
State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006)
(once defendant sentenced and custody transferred to
penal institution, court’s jurisdiction over that person
terminates). At the time of trial, the defendant had been
sentenced on his 2001 conviction. Consequently, the
court had no subject matter jurisdiction, and therefore
no power, to consider the prior conviction.
VII
The defendant next claims that the court erred in
limiting his opening statement. A criminal defendant,
however, has no constitutional right to make an opening
statement. Furthermore, ‘‘[i]n this state, we have not
established by statute, rule or practice a procedure
which allows the defendant, in a criminal case, to make
an opening statement to the jury. Nor has the right to
make an opening statement been construed as one of
constitutional proportions. The Constitution requires
no more than that trials be fairly conducted and that
guaranteed rights of defendants be scrupulously
respected. . . . We believe that an opening statement
by the defendant is not such a guaranteed right, and
that the making and timing of opening statements can
be left constitutionally to the informed discretion of
the trial judge.’’ (Internal quotation marks omitted.)
State v. Ridley, 7 Conn. App. 503, 505–506, 509 A.2d
546, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986).
Under this standard, the court did not abuse its dis-
cretion when it limited the defendant’s opening
remarks. At trial, the court explained to the jury that
the state and the defendant would make ‘‘extremely
brief’’ opening statements ‘‘intended to be a very brief
overview of the evidence they expect to offer.’’ When
the defendant began his opening remarks by stating, ‘‘I
am sorry that you have to be here because this case
never should have come to this,’’ the court interrupted
the defendant by stating, ‘‘Mr. Book, no. We are not
going to—this is not a closing statement.’’ The court
reasonably could have anticipated that the defendant
was about to present the jury with legal argument,
rather than limiting his statements to an overview of
the evidence he expected to present. As the court acted
well within its discretion to limit the opening state-
ments, it did not abuse that discretion when it restricted
the defendant to the confines of those limitations.
VIII
The defendant next claims that the court erred by
rejecting his requests to charge the jury. Specifically,
he argues that the jury instruction should have included
instructions regarding various defenses. We disagree.
‘‘We begin with the well established standard of
review governing the defendant’s challenge to the trial
court’s jury instruction. Our review of the defendant’s
claim requires that we examine the [trial] court’s entire
charge to determine whether it is reasonably possible
that the jury could have been misled by the omission
of the requested instruction. . . . While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper.’’
(Internal quotation marks omitted.) State v. Kitchens,
299 Conn. 447, 454–55, 10 A.3d 942 (2011).
Our review of the record confirms that the jury
instructions were correct in law and properly adapted
to the issues in a manner sufficient to guide the jury.
The court was not required to accept the defendant’s
requests to charge because his claims were not legally
recognized defenses and were not supported by the
evidence. ‘‘An instruction on a legally recognized theory
of defense . . . is warranted only if the evidence indi-
cates the availability of that defense.’’ (Internal quota-
tion marks omitted.) State v. Vilchel, 112 Conn. App.
411, 418, 963 A.2d 658, cert. denied, 291 Conn. 907, 969
A.2d 173 (2009).
IX
The defendant next claims that the court erred when
it prohibited him from engaging in the following discus-
sion in closing argument: claiming that the prosecutor
had committed prosecutorial impropriety12 and reading
from a legal treatise that was not in evidence. We
disagree.
‘‘[T]he proper scope of closing argument lies within
the sound discretion of the trial court.’’ (Internal quota-
tion marks omitted.) State v. Crnkovic, 68 Conn. App.
757, 771, 793 A.2d 1139, cert. denied, 260 Conn. 925,
797 A.2d 521 (2002). ‘‘It is within the discretion of the
trial court to limit the scope of final argument to prevent
comment on facts that are not properly in evidence, to
prevent the jury from considering matters in the realm
of speculation and to prevent the jury from being influ-
enced by improper matters that might prejudice its
deliberations.’’ (Internal quotation marks omitted.)
State v. Mungroo, 104 Conn. App. 668, 677, 935 A.2d 229(2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).
During his closing argument, the defendant stated
that ‘‘there certainly is indication of potential prosecu-
torial misconduct.’’ The prosecutor immediately
objected, and the court sustained the objection,
explaining to the defendant that personal attacks on
opposing counsel were not appropriate subject matter
for final arguments. The court then explained to the
defendant that he is limited to discussing facts that
were supported by way of evidence presented or stipu-
lated by the parties. The defendant later attempted to
read a brief passage from a book called ‘‘Restoring the
Lost Constitution.’’ The court again interrupted him and
stated that issues of a statute’s constitutionality are not
to be decided by the jury.
Our close review of the record confirms that the
limitations placed on the scope of the defendant’s clos-
ing arguments were proper. The defendant’s bare allega-
tions of prosecutorial impropriety amounted to an
attack on opposing counsel, which the court may prop-
erly take steps to prevent. See United States v. Young,
470 U.S. 1, 9, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)
(‘‘[d]efense counsel, like his adversary, must not be
permitted to make unfounded and inflammatory attacks
on the opposing advocate’’). ‘‘[Counsel should] avoid
arguments which are calculated to influence the pas-
sions or prejudices of the jury, or which would have
the effect of diverting the jury’s attention from [its] duty
to decide the case on the evidence.’’ (Internal quotation
marks omitted.) State v. Bova, 240 Conn. 210, 243–44,
690 A.2d 1370 (1997). The defendant’s attempt to read
passages from a book that was not in evidence was
also properly rejected. See State v. Sweeney, 104 Conn.
App. 582, 598, 935 A.2d 178 (2007) (‘‘[c]ounsel may not
. . . comment on or suggest [in closing argument] an
inference from facts not in evidence’’ [internal quotation
marks omitted]). We conclude that the court did not
abuse its discretion in limiting the scope of the defen-
dant’s closing argument.
X
The defendant next claims that the court erred in its
instructions to the jury. We do not reach the merits of
this claim because we conclude that the defendant has
waived this claim.
‘‘Whether a defendant waives the right to challenge
jury instructions is a question of law over which we
exercise plenary review.’’ State v. Davis, 311 Conn. 468,
477, 88 A.3d 445 (2014). In State v. Kitchens, supra, 299
Conn. 482–83, our Supreme Court explained that ‘‘when
the trial court provides counsel with a copy of the
proposed jury instructions, allows a meaningful oppor-
tunity for their review, solicits comments from counsel
regarding changes or modifications and counsel affirm-
atively accepts the instructions proposed or given, the
defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly
the constitutional right to challenge the instructions on
direct appeal.’’ The doctrine of implied waiver is based
on the ‘‘idea that counsel had sufficient notice of . . .
the jury instructions and was aware of their content
. . . .’’ (Emphasis omitted.) Id., 487 n.25.
On the morning of October 24, 2012, the court circu-
lated revised copies of the proposed jury instructions.
The court then explained the changes made to the
instructions and allowed the state and the defendant
time to comment. The defendant raised several con-
cerns, including first amendment challenges, a defense
of distress,13 a defense of mistake of law, and the validity
of his prior 2001 conviction. The court explained why
each concern was not appropriate for a jury instruction.
First, the court stated that the first amendment was not
applicable to jury instructions because the harassment
charge related to conduct rather than speech. Next, the
court explained that distress is not a defense to a charge
of harassment. The court also explained that ignorance
or mistake of law are not a defense to criminal liability.
Finally, the court concluded that it lacked jurisdiction
to consider issues pertaining to the defendant’s 2001
convictions. Before charging the jury, the court asked
the defendant if there was ‘‘[a]nything preliminarily
before we start the charge,’’ to which the defendant
responded ‘‘[n]o. . . . We’re good as we can be.’’ After
the charge was read, the court again asked the defen-
dant if he had any exceptions, and the defendant
responded with, ‘‘[n]o exceptions.’’ Here, the defendant
was provided a copy of the instruction from the court,
provided an opportunity to review it, allowed time to
comment on the court’s changes and revisions, and
ultimately affirmatively accepted the instructions both
before and after they were read to the jury. We therefore
conclude that the defendant waived his claim of instruc-
tional error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-183 (a) provides: ‘‘A person is guilty of harassment
in the second degree when: (1) By telephone, he addresses another in or
uses indecent or obscene language; or (2) with intent to harass, annoy or
alarm another person, he communicates with a person by telegraph or
mail, by electronically transmitting a facsimile through connection with a
telephone network, by computer network, as defined in section 53a-250, or
by any other form of written communication, in a manner likely to cause
annoyance or alarm; or (3) with intent to harass, annoy or alarm another
person, he makes a telephone call, whether or not a conversation ensues,
in a manner likely to cause annoyance or alarm.’’
2
We note that our Supreme Court in State v. Moulton, 310 Conn. 337,
362–63, 78 A.3d 55 (2013), overruled Murphy, Bell and Anonymous (1978-
4), to the extent that they held that § 53a-183 (a) proscribes only conduct
and not offensive speech that is unprotected by the first amendment.
Because the defendant in this case was prosecuted only on the basis of
his having sent the letter at issue to the complainant in 2003, unprotected
speech is not at issue and, thus, we review only the defendant’s conduct
relative to § 53a-183 (a).
3
The defendant offers two cases for the proposition that § 53a-183 (a) is
unconstitutional. The first is Vives v. City of New York, 305 F. Supp. 2d 289(S.D.N.Y. 2003), rev’d in part, 405 F.3d 115 (2d Cir. 2004), in which a federal
District Court declared that a similar harassment statute in New York was
declared unconstitutional. See also People v. Golb, 23 N.Y.3d 455, 15 N.E.3d
805, 991 N.Y.S.2d 792 (holding aggravated harassment statute in second
degree as unconstitutionally vague and overly broad), cert. denied, U.S.
(83 U.S.L.W. 3579, January 12, 2015). Although we acknowledge the
reasoning of the New York state and federal courts, our Supreme Court has
held that the state has a valid interest in protecting the privacy rights of
the victims of harassment. ‘‘[T]he legislature had a compelling interest in
protecting this state’s citizenry from . . . fear and abuse . . . .’’ State v.
Moulton, supra, 310 Conn. 360. The second case cited by the defendant is
Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938(2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485(1980). Gormley, however, directly contradicts the defendant’s position by
upholding the constitutionality of the Connecticut harassment statute on
the basis that it was not overbroad. Id., 942.
4
At trial, the defendant stated: ‘‘I sent the letter of which is offered into
evidence to [the complainant].’’
5
The court charged the jury with the following instructions: ‘‘For you to
find the defendant guilty of this charge, the state must prove the following
elements beyond a reasonable doubt.
‘‘Element one, intent. The first element is that the defendant intended to
harass, annoy or alarm another person. A person acts intentionally with
respect to a result when his objective—when his conscious objective is to
cause such result.
Harass means to trouble, worry or torment. Annoy means irritate, vex,
bother as by repeated action. Alarm means to make suddenly afraid, anxious
or frightened.
‘‘Element two are written communications. The second element is that
the defendant sent a written communication to [the complainant] in a manner
likely to cause annoyance or alarm. In this case, it is claimed that the written
communication was sent through the mail.
‘‘In summary, the state must prove beyond a reasonable doubt that the
defendant intended to harass, annoy or alarm [the complainant] and by
means of a written communication, he communicated with [the complainant]
in a manner that was likely to cause annoyance or alarm.
‘‘Now, there’s a distinction that I must emphasize. The focus of the offense
is not on the contents of the communication but, rather, the act of communi-
cating. The statute does not attempt to regulate or criminalize the content.’’
6
Until recently, our Supreme Court had consistently held that § 53a-183
(a) proscribed harassing conduct only. In State v. Moulton, supra, 310 Conn.
362, however, our Supreme Court construed the statute’s application by
concluding that ‘‘§ 53a-183 (a) proscribes harassing and alarming speech as
well as conduct.’’ (Emphasis added.) The court held that ‘‘whenever the
state relies on the content of a communication as substantive evidence of
a violation of § 53a-183 (a),’’ the trial court ‘‘must instruct the jury on the
difference between protected and unprotected speech . . . .’’ Id., 363. We
recognize that Moulton overruled all prior cases to the extent that they
prohibited the prosecution of second degree harassment on the basis of the
content of the communication. But, when a defendant is prosecuted on the
basis of his conduct only, our prior case law continues to govern.
7
Although the court in Moulton construed the harassment statute to
include unprotected speech, in part II B of the opinion it dismissed the
defendant’s harassment conviction on the ground that she ‘‘did not have
fair warning that she could be prosecuted for a violation of [the statute]
solely on the basis of the content of her speech.’’ State v. Moulton, supra,
310 Conn. 366. As Moulton was decided on October 29, 2013, and the present
case was tried before a jury on October 23, 2012, the defendant here was
also not properly placed on notice of the change in the law.
8
The defendant’s letter stated, in part, the following: ‘‘Very quickly in the
meeting, Sergeant Anthony Lupinacci told me not to contact you again. I
asked why, explaining that you owed me money. He explained that you
didn’t want further communications from me.’’ (Emphasis added.)
9
The defendant cited Matthew 18:15-16 to support his position that ‘‘mat-
ters of relationship conflict’’ were a ‘‘legitimate purpose’’ for contacting
the complainant.
10
Within the defendant’s letter, he asked the complainant the following:
‘‘would you either withdraw or amend your second statement to the police?
In addition, was your first statement to the police all yours? In other words,
might there have been some embellishments in your first statement which
were suggested by the police?’’
11
The defendant’s letter concludes with the following statement: ‘‘I trust
that you, Lindsay and Matthew are fine. Sincerely, Ethan.’’
12
On appeal, the defendant does not raise a claim of prosecutorial impro-
priety. He only claims that the court abused its discretion when it limited
his ability to argue prosecutorial impropriety during closing arguments.
Consequently, our review is limited to the claim presented.
13
We note that although the defendant filed a written request to charge
the jury on the defense of duress and cited General Statutes § 53a-14, during
a colloquy with the court about the instruction, he claimed that he ‘‘was
under distress, which is related to duress . . . .’’ The court rejected the
defendant’s proposed instruction as to distress, stating that it did not ‘‘see
that as being a surrogate for duress.’’