State v. Wiggins ( 2015 )

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STATE OF CONNECTICUT v. KIPP MENDEZ WIGGINS
(AC 36951)
DiPentima, C. J., and Prescott and Bear, Js.
Argued May 14—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Litchfield, geographical area number eighteen,
Marano, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (defendant).
Kelli N. Ford, certified legal intern, with whom were
Nancy L. Chupak, senior assistant state’s attorney, and,
on the brief, David S. Shepak, state’s attorney, and
Devin T. Stilson, supervisory assistant state’s attorney,
for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Kipp Mendez Wiggins,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of criminal violation of a protec-
tive order in violation of General Statutes § 53a-223.1
On appeal, the defendant claims that the trial court
improperly denied his motion for judgment of acquittal.
Specifically, he argues that (1) there was insufficient
evidence to prove beyond a reasonable doubt that the
defendant had actual notice of the protective order and
its terms; and (2) the complainant’s ‘‘testimony was
incredible as a matter of law.’’ We affirm the judgment
of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
discussion. The defendant and the female complainant
were acquainted to each other prior to the underlying
incident. The defendant had visited the complainant’s
place of residence and work where he would leave gifts
and ‘‘many notes’’ for her.2 On December 2, 2009, the
complainant encountered the defendant in the driveway
of her house. When she asked the defendant to leave
her alone, he responded, ‘‘[i]f only I could.’’
Following the defendant’s arrest for criminal trespass
in the third degree and stalking on December 7, 2009,
the court issued a protective order against the defen-
dant and for the protection of the complainant. The
order specifically provided, inter alia, that the defendant
‘‘shall refrain from coming within 100 yards of the [com-
plainant]’’ or ‘‘having any contact in any manner’’ with
her. In addition, the order stated that it would remain
‘‘in effect until final disposition of the criminal case or
until further order of the court.’’
While that case was pending, on March 31, 2010, at
approximately 5 p.m., the complainant was sitting in
her automobile that was parked in the driveway of her
residence. At that time, she observed the defendant ride
his bicycle by her. During the encounter, the defendant
made and maintained eye contact with the complainant
and smiled. The encounter lasted for approximately a
minute, with no more than fifty-five feet separating the
parties. Once the defendant had left, the complainant
called the police.
The responding state trooper, James Parker, inter-
viewed the complainant and thereafter proceeded to
the defendant’s residence to ‘‘find both sides of the
story.’’ When Parker asked the defendant about the
circumstances of the incident, the defendant stated that
he had gone by the complainant’s house earlier that
evening without knowing whether she was there or
not, and then added that he loved her. In addition, the
defendant indicated that he knew that ‘‘he was not
supposed to be near there or near the complainant.’’3
Subsequently, the defendant was arrested and
charged with criminal violation of a protective order.
Specifically, the state accused the defendant of violating
the conditions of the protective order ‘‘by coming within
one hundred yards of the [complainant].’’ A jury trial
was held on September 13, 2011.
At trial, in addition to the testimony of the complain-
ant and Parker, the state called Eric Groody, deputy
chief clerk of the Superior Court at geographical area 18
in Bantam where the protective order had been issued.
Groody testified that he had been in his position for
eighteen years, and that one of his functions as deputy
chief clerk was to make sure that the court adhered to
all laws pertaining to the issuance of protective orders.
Groody further testified that, in Bantam, when a person
is charged with an offense and a protective order is
necessary, such an order is drafted by Family Relations
and then presented to the court. Thereafter, according
to Groody, the court may make any modifications to
the order, if necessary, read the terms and conditions
of such order to the accused on the record, and hand
a signed copy of the order to the accused before he or
she leaves the courtroom.4 When questioned whether
that practice had been followed in this particular case,
Groody testified that the ‘‘business practice in pro-
cessing protective orders [is followed] for every one of
the family arraignments that we have.’’5 Groody did,
however, concede during cross-examination that he had
no recollection of having been present at the time the
protective order was issued to the defendant.
Once the state had rested its case, the defense counsel
orally moved for a judgment of acquittal, arguing that
the state failed to prove beyond a reasonable doubt
that the defendant had notice of the protective order,
and that the complainant’s testimony at trial differed
from what she had told the police at the time of the
incident. After argument, the court denied the motion
for judgment of acquittal from the bench. Thereafter,
the jury found the defendant guilty, and the court then
sentenced him to five years incarceration, execution
suspended after twenty-two months, with five years
probation. This appeal followed. Additional facts will
be set forth as necessary.
I
We begin by setting forth the standard of review
governing claims of insufficient evidence. ‘‘A defendant
who asserts an insufficiency of the evidence claim bears
an arduous burden.’’ (Internal quotation marks omit-
ted.) State v. Rodriguez, 146 Conn. App. 99, 110, 75
A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d 906 (2013).
‘‘In reviewing the sufficiency 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 construed and the inferences reason-
ably drawn therefrom the [jury] 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 reasonable doubt in order to find the defen-
dant guilty of the charged offence, [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 defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative 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 [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical. . . .
‘‘[In addition], [a]s we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the [jury], would have resulted in an
acquittal. . . . On appeal, we do not ask whether there
is a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [jury’s] verdict of guilty.’’ (Inter-
nal quotation marks omitted.) State v. Papandrea, 302
Conn. 340, 348–49, 26 A.3d 75 (2011).
It is well settled that in order to ‘‘prove a charge of
criminal violation of a protective order, the state must
demonstrate that a protective order was issued against
the defendant in accordance with General Statutes
§§ 46b-38c (e) or 54-1k, and it must demonstrate the
terms of the order and the manner in which it was
violated by the defendant.’’ (Internal quotation marks
omitted.) State v. Hasfal, 94 Conn. App. 741, 744–45,
894 A.2d 372 (2006). On appeal, however, the defendant
argues that § 53a-223 (a) has an additional implicit ele-
ment of actual notice by the defendant of the protective
order, which the state needs to prove beyond a reason-
able doubt in order to obtain a criminal conviction.6
According to the defendant, notice must be proven
because ‘‘the fair-warning requirement embodied in the
Due Process Clause prohibits the States from holding
an individual criminally responsible for conduct which
he could not reasonably understand to be proscribed.’’
(Internal quotation marks omitted.) Rose v. Locke, 423
U.S. 48, 49, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975).
In this case, the defendant argues that he is entitled
to a judgment of acquittal because the state ‘‘failed to
educe at trial sufficient evidence to prove beyond a
reasonable doubt that he had actually received in per-
son or through the mail and/or had actually been given
notice of the protective order at issue . . . .’’ Although
the state continues to argue that notice is not an essen-
tial element of § 53a-223, it concedes in its brief that
‘‘broadly speaking, as a matter of due process, a defen-
dant cannot be convicted of [a] criminal violation of a
protective order if the evidence demonstrated that he
did not have notice of the protective order . . . .’’7
Although we find the defendant’s argument that
actual notice is an implicit element of § 53a-223 appeal-
ing, we need not decide that claim because we conclude
that, even if it were an essential element, the state
presented sufficient evidence for the jury to conclude
beyond a reasonable doubt that the defendant had
actual notice of the protective order.8
First, Parker testified that the defendant, during ques-
tioning, had admitted to him that he knew he was not
supposed to be near the complainant. From this admis-
sion, the jury reasonably could have inferred that the
defendant knew about the protective order and its
terms. Specifically, because the defendant’s statement
directly relates to one of the restrictions within the
order—the requirement to refrain from coming within
100 yards of the complainant—the jury reasonably
could have concluded that the defendant’s knowledge
that he must not be near the complainant stemmed
from the restrictions within the order and not from
some other source.
Second, Groody testified that it was the practice of
the Bantam courthouse to provide a copy of a protective
order to the judge at a defendant’s arraignment so that
the judge could explain the requirements of the order
to the defendant and then ensure that the defendant is
handed a copy of the protective order. Groody also
testified that this ‘‘business practice in processing pro-
tective orders [is followed] for every one of the family
arraignments that we have.’’ From his testimony, the
jury reasonably could have inferred that this standard
courthouse procedure had been adhered to in the
instant case, and that the defendant in fact had been
explained the terms of the order and was given a copy
at his arraignment. See State v. Lavigne, 121 Conn. App.
190, 196, 995 A.2d 94 (2010) (‘‘[triers of fact] are not
required to leave common sense at the courtroom door’’
[internal quotation marks omitted]), aff’d, 307 Conn.
592, 57 A.3d 332 (2012). This evidence, taken together
with the defendant’s statement to Parker that he knew
that he was not permitted to be near the complainant,
is sufficient evidence from which the jury could have
concluded beyond a reasonable doubt that the defen-
dant had actual notice of the protective order. See State
v. Crafts, 226 Conn. 237, 245, 627 A.2d 877 (1993)
(‘‘[t]here is, in fact, no rule of law that forbids the resting
of one inference upon facts whose determination is the
result of other inferences’’ [internal quotation marks
omitted]). Accordingly, the defendant cannot prevail on
his insufficiency of the evidence claim.
II
The defendant’s second claim, that the complainant’s
‘‘testimony was incredible as a matter of law’’ because
it was inconsistent with an earlier statement she had
made to the police, merits little discussion. It is beyond
dispute that ‘‘[i]t is the exclusive province of the trier
of fact to weigh conflicting testimony and make deter-
minations of credibility, crediting some, all or none
of any given witness’ testimony.’’ (Internal quotation
marks omitted.) State v. DeMarco, 311 Conn. 510, 519–
20, 88 A.3d 491 (2014); see also State v. Mejia, 233 Conn.
215, 224, 658 A.2d 571 (1995) (‘‘we must defer to the
jury’s assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude’’ [internal quotation marks
omitted]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-223 (a) provides: ‘‘A person is guilty of criminal
violation of a protective order when an order issued pursuant to subsection
(e) of section 46b-38c, subsection (f) of section 53a-28, or section 54-1k
or 54-82r has been issued against such person, and such person violates
such order.’’
We note that this subsection has been amended since the date of the
offense. See, e.g., Public Acts 2014, No. 14-173, § 5; Public Acts 2011, No.
11-152, § 11. Because these amendments do not affect issues in this appeal,
all references to § 53a-223 are to the current revision of the statute.
2
During that time, the complainant’s residence and place of employment
were located in the same building.
3
At trial, the following colloquy took place between the prosecutor
and Parker:
‘‘[The Prosecutor]: Did [the defendant] indicate to you in any sense that
he was aware of a protective order?
‘‘[Parker]: Yes, he did, sir.
‘‘[The Prosecutor]: What did he tell you?
‘‘[Parker]: He said that he . . . knew he was not supposed to be near
there or near [the complainant].’’
4
During Groody’s testimony, the state introduced, and the court admitted,
a certified copy of the protective order as a full exhibit.
5
We note that the defendant did not object to Groody’s testimony regard-
ing the business standard of the Bantam courthouse in matters concerning
the issuance of a protective order.
6
We note that, despite his claim that notice is an element of the offense,
the defendant did not object to the court’s instructions to the jury on the
essential elements of § 53a-223. Those instructions did not state that notice
is an element of the offense or that the state must prove notice beyond a
reasonable doubt. We further note that, on appeal, the defendant has not
sought review, pursuant to State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), of any claim of instructional error.
7
Despite this concession, the state argues that proof of notice is unneces-
sary because it is inherent in the statutory scheme regarding the issuance
of protective orders. In other words, the state contends that because the
protective order was issued pursuant to the statutory scheme, the defendant
had constructive notice of it. Because we conclude that the evidence is
sufficient to prove beyond a reasonable doubt that the defendant had actual
notice of the protective order, we need not address the state’s argument
that actual notice is not an essential element of § 53a-223.
8
In his brief, the defendant argues that ‘‘it was imperative that the [s]tate
introduce into evidence, either through the court clerk whom was at the
proceeding wherein the protective order was issued to the defendant or the
transcript of the court proceeding wherein the defendant actually received
the protective order, as well as, was explained its terms, conditions and
restrictions by the judge.’’
Although we agree with the defendant that introduction of direct evidence,
such as the transcript of the arraignment hearing, by the state would have
likely satisfied the state’s burden to prove notice, we are not persuaded
that this is the only way for the state to prove that the defendant had notice
of the protective order. To impose such a requirement would contradict
our well established principle that ‘‘it does not diminish the probative force
of the evidence that it consists, in whole or in part, of evidence that is
circumstantial rather than direct.’’ (Internal quotation marks omitted.) State
v. Papandrea, supra, 302 Conn. 349.