State v. Parnoff ( 2015 )


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    STATE OF CONNECTICUT v. LAURENCE V.
    PARNOFF
    (AC 36567)
    Keller, Prescott and West, Js.
    Argued May 19—officially released October 6, 2015
    (Appeal from Superior Court, judicial district of
    Fairfield, geographical area number two, Dennis, J.)
    Norman A. Pattis, for the appellant (defendant).
    Mitchell S. Brody, senior assistant state’s attorney,
    with whom, on the brief, were John C. Smriga, state’s
    attorney, and Michael A. DeJoseph, senior assistant
    state’s attorney, for the appellee (state).
    Opinion
    KELLER, J. The defendant, Laurence V. Parnoff,
    appeals from the judgment of conviction, rendered after
    a jury trial, of disorderly conduct in violation of General
    Statutes § 53a-182 (a) (1). He claims that there was
    insufficient evidence to sustain the jury’s verdict. We
    agree and, accordingly, reverse the judgment of con-
    viction.1
    The following facts, as a jury reasonably could have
    found, and procedural history are relevant here. On July
    11, 2011, Kyle Lavin, a summer intern at a water utility
    company, was tasked with conducting routine mainte-
    nance on a fire hydrant located on the defendant’s prop-
    erty. Lavin called David Lathlean, an employee of the
    water utility company, to assist him. Lathlean and Lavin
    arrived at the defendant’s residence in separate com-
    pany trucks. In addition, Lathlean and Lavin wore identi-
    fication badges and bright yellow shirts with the
    company’s name imprinted on them. They proceeded
    to enter the defendant’s property and locate the fire
    hydrant, which was situated in a wooded area approxi-
    mately 100 feet from the defendant’s home.2 Upon
    inspecting the fire hydrant, they noticed that its front
    cap was missing. Approximately ten to twenty feet away
    from the fire hydrant was an open-ended canopied shed
    wherein they located the fire hydrant’s missing cap,
    which had a hose fitting welded into it. The water utility
    company did not permit fire hydrant caps to be removed
    and modified, indicating that someone had tampered
    with the front cap.
    Shortly after Lathlean and Lavin found the missing
    cap, the defendant’s daughter arrived at the defendant’s
    residence. Lathlean briefly spoke with the defendant’s
    daughter, who informed him that the property belonged
    to the defendant. The defendant’s daughter then began
    heading toward the home when she encountered the
    defendant, who was walking up the driveway, and
    informed him that Lathlean and Lavin were on the prop-
    erty. The defendant proceeded to confront Lathlean
    about his presence on the property. Lathlean explained
    that he, along with Lavin, were employed by the water
    utility company and noted their discovery of the fire
    hydrant’s compromised front cap. In response, the
    defendant claimed that they had no right to be on his
    property and stated that he would retrieve a gun and
    shoot them if they did not leave.3 Lathlean then called
    the police. The defendant proceeded to walk around
    his property with a coffee can in search of worms to
    use as fishing bait. Lathlean followed the defendant,
    and the defendant continued to tell Lathlean, along with
    Lavin, to leave his property. In total, the defendant
    asked Lathlean and Lavin to leave his property at least
    six times.4
    Glynn McGlynn, a police officer with the Stratford
    Police Department, and another police officer arrived
    at the defendant’s residence approximately ten minutes
    after Lathlean had called the police. McGlynn asked
    the defendant whether he had stated that he would
    shoot Lathlean and Lavin with a gun, which the defen-
    dant admitted to doing. McGlynn then asked the defen-
    dant to step back multiple times so he could speak with
    Lathlean and Lavin privately, but the defendant refused
    to leave the immediate area. Thereafter, McGlynn pro-
    ceeded to arrest the defendant.
    The defendant was charged with disorderly conduct
    in violation of § 53a-182 (a) (1) and criminal mischief
    in the fourth degree in violation of General Statutes
    § 53a-117a (a) (1).5 A jury found him guilty of disorderly
    conduct, but not guilty of criminal mischief. The court
    sentenced the defendant to three months incarceration,
    execution suspended, followed by one year of probation
    with special conditions, which required him to complete
    an anger management program and to write an apology
    letter to Lathlean and Lavin. The court also imposed a
    fine of $500, plus court costs. This appeal followed.
    Additional facts will be set forth as necessary.
    The defendant’s claim that there was insufficient evi-
    dence to sustain the jury’s verdict convicting him of
    disorderly conduct in violation of § 53a-182 (a) (1) is
    dispositive of this appeal. Specifically, he asserts that
    no jury reasonably could have found that his statement
    to Lathlean, that he would get a gun and shoot Lathlean
    and Lavin if they did not leave his property, constituted
    ‘‘fighting words,’’ which are a category of unprotected
    speech under the first amendment to the federal consti-
    tution, and, consequently, that no jury reasonably could
    have found that he engaged in ‘‘violent, tumultuous or
    threatening behavior’’ as required under § 53a-182 (a)
    (1). We agree.
    We begin by setting forth the relevant standard of
    review. ‘‘The standard of review we [ordinarily] apply
    to a claim of insufficient evidence is well established.
    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 [finder of fact] reasonably
    could have concluded that the cumulative force of the
    evidence established guilt beyond a reasonable doubt.
    . . . In [State v. DeLoreto, 
    265 Conn. 145
    , 
    827 A.2d 671
    (2003)], however, [our Supreme Court] explained that
    [t]his [c]ourt’s duty is not limited to the elaboration of
    constitutional principles; we must also in proper cases
    review the evidence to make certain that those princi-
    ples have been constitutionally applied. This is such a
    case, particularly since the question is one of alleged
    trespass across the line between speech uncondition-
    ally guaranteed and speech which may legitimately be
    regulated. . . . In cases [in which] that line must be
    drawn, the rule is that we examine for ourselves the
    statements in issue and the circumstances under which
    they were made to see . . . whether they are of a char-
    acter which the principles of the [f]irst [a]mendment
    . . . protect. . . . We must [independently examine]
    the whole record . . . so as to assure ourselves that
    the judgment does not constitute a forbidden intrusion
    on the field of free expression. . . . [Our Supreme
    Court] . . . reiterated this de novo scope of review in
    free speech claims in DiMartino v. Richens, 
    263 Conn. 639
    , 661–62, 
    822 A.2d 205
    (2003) . . . . Although credi-
    bility determinations are reviewed under the clearly-
    erroneous standard because the trier of fact has had
    the opportunity to observe the demeanor of the wit-
    nesses . . . the reviewing court must examine for
    [itself] the statements in issue and the circumstances
    under which they were made to determine if they are
    protected by the first amendment.’’ (Internal quotation
    marks omitted.) State v. Carter, 
    141 Conn. App. 377
    ,
    397–98, 
    61 A.3d 1103
    , cert. granted on other grounds,
    
    308 Conn. 943
    , 
    66 A.3d 886
    (2013).
    General Statutes § 53a-182 provides in relevant part:
    ‘‘(a) A person is guilty of disorderly conduct 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 threat-
    ening behavior . . . .’’ Therefore, ‘‘the crime of disor-
    derly conduct consists of two elements: (1) that the
    defendant intended to cause, or recklessly created a
    risk of causing, inconvenience, annoyance or alarm and
    (2) that he did so by engaging in fighting or in violent,
    tumultuous or threatening behavior . . . .’’ (Internal
    quotation marks omitted.) State v. Briggs, 94 Conn.
    App. 722, 726–27, 
    894 A.2d 1008
    , cert. denied, 
    278 Conn. 912
    , 
    899 A.2d 39
    (2006).
    Our Supreme Court has held that verbal statements,
    unaccompanied by physical violence, are considered
    ‘‘violent, tumultuous or threatening behavior’’ when
    they amount to ‘‘fighting words that portend physical
    violence.’’ State v. Szymkiewicz, 
    237 Conn. 613
    , 620,
    
    678 A.2d 473
    (1996). In State v. Indrisano, 
    228 Conn. 795
    , 811–15, 
    640 A.2d 986
    (1994), the court rejected a
    defendant’s claim that § 53a-182 (a) (1) was unconstitu-
    tionally vague on its face or as applied to him. In reach-
    ing that conclusion, the court explained that § 53a-182
    (a) (1) ‘‘prohibits physical fighting, and physically vio-
    lent, threatening or tumultuous behavior.’’ 
    Id., 812. The
    court continued by stating that the foregoing conclusion
    ‘‘is consistent with the ‘fighting words’ limitation that
    must be applied when the conduct sought to be pro-
    scribed consists purely of speech. Chaplinsky v. New
    Hampshire, 
    315 U.S. 568
    , 573, 
    62 S. Ct. 766
    , 
    86 L. Ed. 1031
    (1942); State v. Anonymous (1978–4), 34 Conn.
    Supp. 689, 695, 
    389 A.2d 1270
    (1978). The Chaplinsky
    doctrine permits the state to prohibit speech that has
    a direct tendency to inflict injury or to cause acts of
    violence or a breach of the peace by the persons to
    whom it is directed. See Statewide Grievance Commit-
    tee v. Presnick, 
    18 Conn. App. 316
    , 
    559 A.2d 220
    (1989).’’
    State v. 
    Indrisano, supra
    , 812.
    Subsequently, in State v. 
    Szymkiewicz, supra
    , 
    237 Conn. 618
    , our Supreme Court addressed whether Gen-
    eral Statutes § 53a-181 (a) (1), the statute which creates
    the infraction of creating a public disturbance, pro-
    scribes speech that can be characterized as ‘‘fighting
    words.’’ The elements of § 53a-181 (a) (1) are identical
    to the elements of § 53a-182 (a) (1), except that § 53a-
    181 (a) (1) requires the actor to engage in ‘‘fighting or
    in violent, tumultuous or threatening behavior’’ in a
    public place. 
    Id. Accordingly, the
    court cited its inter-
    pretation of § 53a-182 (a) (1) in Indrisano and stated
    that ‘‘we recognized [in Indrisano] that § 53a-182 (a)
    (1) could constitutionally proscribe speech that, under
    a given set of circumstances, could fairly be character-
    ized as fighting words that portend imminent physical
    violence. Moreover, we recognized that fighting words,
    because they do portend imminent physical violence
    or are likely to prompt imminent physical retaliation,
    have a sufficient aspect of physicality such that they
    can constitute a violation of § 53a-182 (a) (1). . . .
    Accordingly, a fair reading of Indrisano indicates that
    speech can be proscribed not only when accompanied
    by actual physical conduct, but also when it can be
    identified as fighting words that portend physical
    violence.
    ‘‘Consequently, we conclude that § 53a-181 (a) (1)
    does not require proof of actual physical contact on
    the part of the defendant with a victim . . . but rather
    that, when applied to speech, the parameters of the
    violent, threatening or tumultuous behavior prohibited
    by § 53a-181 (a) (1) are consistent with ‘fighting words’
    . . . .’’ (Citation omitted.) 
    Id., 619–20. ‘‘The
    protections afforded by the First Amendment
    . . . are not absolute, and [the Supreme Court of the
    United States has] long recognized that the government
    may regulate certain categories of expression consis-
    tent with the [federal] Constitution. . . . The First
    Amendment permits restrictions upon the content of
    speech in a few limited areas, which are of such slight
    social value as a step to truth that any benefit that may
    be derived from them is clearly outweighed by the social
    interest in order and morality.’’ (Internal quotation
    marks omitted.) State v. 
    Carter, supra
    , 
    141 Conn. App. 399
    . ‘‘Fighting words’’ fall within this category of unpro-
    tected speech under the first amendment. See Snyder
    v. Phelps, 
    562 U.S. 443
    , 451 n.3, 
    131 S. Ct. 1207
    , 179 L.
    Ed. 2d 172 (2011). ‘‘Fighting words are those that are
    inherently inflammatory and simply by their utterance
    tend to incite a breach of the peace by persons to whom
    they are addressed. . . . Such words touch the raw
    nerves of one’s sense of dignity, decency, and personal-
    ity and . . . therefore tend to trigger an immediate,
    violent reaction. . . . They are like sparks, capable of
    igniting individual reaction as well as setting off a group
    conflagration by provoking hostile reaction or inciting
    a riot.’’ (Citations omitted; internal quotation marks
    omitted.) Statewide Grievance Committee v. Presnick,
    
    18 Conn. App. 316
    , 325, 
    559 A.2d 220
    (1989); see also
    State v. 
    Szymkiewicz, supra
    , 
    237 Conn. 620
    (defining
    ‘‘fighting words’’ as ‘‘speech that has a direct tendency
    to cause imminent acts of violence or an immediate
    breach of the peace’’ [internal quotation marks omit-
    ted]). ‘‘Such speech must be of such a nature that it is
    likely to provoke the average person to retaliation.’’
    (Internal quotation marks omitted.) State v. Szymkie-
    
    wicz, supra
    , 620. To be considered ‘‘fighting words,’’
    the speech at issue need not actually cause those who
    hear the speech to engage in ‘‘violent, tumultuous or
    threatening behavior,’’ but must have ‘‘the tendency to
    provoke imminent retaliation’’ from them. 
    Id. Moreover, ‘‘[w]hether
    particular language constitutes fighting
    words . . . depends not only on the language but on
    the full factual situation of its utterance.’’ State v. Bel-
    lamy, 
    4 Conn. App. 520
    , 529, 
    495 A.2d 724
    (1985).
    With the foregoing legal principles in mind, we con-
    clude that the defendant’s statement did not constitute
    ‘‘fighting words.’’ To be considered ‘‘fighting words,’’
    the defendant’s statement must have had the tendency
    to provoke imminent, retaliatory acts of violence from
    the average person hearing the statement. ‘‘Imminent’’
    is defined as ‘‘ready to take place; esp: hanging threaten-
    ingly over one’s head . . . .’’ Webster’s Collegiate Dic-
    tionary (11th Ed. 2003); see State v. Harris, 
    277 Conn. 378
    , 389, 
    890 A.2d 559
    (2006) (same); State v. Damone,
    
    148 Conn. App. 137
    , 170 n.15, 
    83 A.3d 1227
    (same), cert.
    denied, 
    311 Conn. 936
    , 
    88 A.3d 550
    (2014). The foregoing
    ‘‘imminence’’ component is missing in the present case
    for two reasons. First, there was no evidence that the
    defendant appeared to be carrying a gun, and thus
    immediately capable of the violent act he described,
    when he made his statement to Lathlean. Lavin, Lath-
    lean and Beverly Doyle, another employee of the water
    utility company who arrived at the defendant’s resi-
    dence, testified that the defendant was wearing shorts
    but was not wearing a shirt. This fact militates against
    the inference that the defendant potentially was car-
    rying a concealed weapon at the time that he made the
    statement at issue. Further, as both Lathlean and Lavin
    testified, the defendant warned them that he would
    leave their presence, retrieve a gun, come back and
    then shoot them if they did not leave his property. There
    was no evidence that the defendant went into his home
    after making the statement. Instead, he repeatedly
    requested that they leave his property without reference
    to a gun. Although the defendant once mentioned
    retrieving a gun to shoot Lathlean and Lavin, the fact
    that he was unarmed and showed no indication of car-
    rying a weapon lessened the likelihood that the average
    person would have felt provoked to respond to the
    defendant’s statement with imminent violence. Second,
    the defendant stated that he would shoot Lathlean and
    Lavin if they did not leave his property, rather than
    warning them that he would shoot them as a result
    of their presence on his property or in retaliation for
    another act that already had been committed. The con-
    ditional nature of the defendant’s statement further
    reduced the probability that the average person would
    have responded to the defendant’s statement with immi-
    nent violence.6
    Additionally, the factual circumstances surrounding
    the defendant’s statement further militate against a con-
    clusion that his statement constituted fighting words.
    The defendant was informed by his daughter that two
    individuals whom he had never met were on his prop-
    erty. After confronting them and making his statement,
    he merely proceeded to walk around his property
    searching for worms while continuing to repeatedly tell
    Lathlean and Lavin to leave his property. There was
    no evidence suggesting that he made any gestures or
    committed any other actions consistent with his
    statement.
    We readily recognize that the evidence does not
    reflect that the defendant responded to the water utility
    company personnel in a civil or socially appropriate
    manner. Yet, on the basis of the totality of the circum-
    stances in which the defendant’s words were used, we
    conclude that the average person would not react to
    the defendant’s statement with imminent violence. Cf.
    State v. 
    Szymkiewicz, supra
    , 
    237 Conn. 615
    –16, 620
    (defendant’s speech deemed ‘‘fighting words’’ when,
    while being escorted out of store in handcuffs, defen-
    dant threatened employee and yelled expletives at
    employee and police officer in front of crowd of shop-
    pers); Statewide Grievance Committee v. 
    Presnick, supra
    , 
    18 Conn. App. 318
    –19, 325 (defendant’s speech
    deemed ‘‘fighting words’’ when he called employee of
    Department of Children and Youth Services, now
    Department of Children and Families (department),
    ‘‘child molester’’ and referred to department as ‘‘nazi
    or neo-nazi organization’’ during pretrial conference,
    and generally was ‘‘shouting,’’ ‘‘ranting’’ and ‘‘raving’’
    as he followed department employees down staircase
    after leaving courtroom, garnering attention of
    onlookers).
    For the foregoing reasons, we conclude there was
    insufficient evidence to convict the defendant of disor-
    derly conduct in violation of § 53a-182 (a) (1). No rea-
    sonable jury could have found, on the basis of the
    evidence in the record, that the defendant’s statement
    to Lathlean constituted ‘‘fighting words.’’ Therefore, no
    jury reasonably could have found that the defendant
    engaged in ‘‘violent, tumultuous or threatening behav-
    ior’’ under § 53a-182 (a) (1).
    The judgment is reversed and the case is remanded
    with direction to render a judgment of acquittal on the
    charge of disorderly conduct in violation of § 53a-182
    (a) (1).
    In this opinion the other judges concurred.
    1
    The defendant also claims that the trial court erred by providing the jury
    with multiple misleading jury instructions and by improperly augmenting his
    sentence in retaliation for his decision to exercise his right to a jury trial.
    However, if a defendant prevails on a sufficiency of the evidence claim, he
    or she is entitled to a directed judgment of acquittal rather than to a new
    trial. See State v. Moore, 
    100 Conn. App. 122
    , 126 n.2, 
    917 A.2d 567
    (2007).
    Because we agree with the defendant’s claim that there was insufficient
    evidence to sustain the jury’s verdict, we need not reach his other claims
    on appeal.
    2
    The water utility company had an easement running along the waterline
    that afforded it access to the fire hydrant.
    3
    Specifically, Lathlean testified that the defendant had ‘‘said something
    about [Lathlean and Lavin going] in his shed and that if we—if we didn’t
    get off his property he was going to get a gun or something like that.’’ When
    asked by the prosecutor shortly thereafter what the defendant had said he
    was intending to do with the gun, Lathlean replied: ‘‘To shoot us.’’
    Lavin, who was standing nearby and overheard the conversation between
    the defendant and Lathlean, testified that the defendant had stated the
    following: ‘‘[I]f you go into my shed I’m going to go into my house, get my
    gun and f’n kill you.’’
    4
    Beverly Doyle, another employee of the water utility company, arrived
    at the defendant’s residence at some point after the defendant had made
    the statement to Lathlean. Doyle testified that she had heard the defendant
    ask her, Lathlean, and Lavin to leave his property ‘‘a couple of times.’’
    5
    The state also charged the defendant with larceny in the sixth degree
    in violation of General Statutes §§ 53a-119 (15) (B) and 53a-125b (a). The
    defendant filed a motion to dismiss, claiming that the larceny charge was
    filed after the relevant statute of limitations had expired. The court granted
    the motion.
    6
    We note that Lathlean testified that he did not recall having any reaction
    to the defendant’s statement and that it had ‘‘bounced right off [of him].’’ In
    contrast, Lavin testified that he felt ‘‘trepidation’’ after hearing the statement.
    Although we acknowledge that speech, in order to constitute ‘‘fighting
    words,’’ need not actually cause those hearing it to respond with immediate
    violence; State v. 
    Szymkiewicz, supra
    , 
    237 Conn. 620
    –21; it is telling that
    neither Lathlean nor Lavin reacted violently in response to the defendant’s
    statement or testified that they had the urge to do so.
    

Document Info

Docket Number: AC36567

Filed Date: 10/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2015