State v. Nowacki ( 2015 )

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STATE OF CONNECTICUT v. MICHAEL NOWACKI
(AC 34577)
Lavine, Beach and Borden, Js.
Argued October 22, 2014—officially released March 10, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Hudock, J.)
Roy S. Ward, for the appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, Suzanne M. Vieux, supervisory assistant
state’s attorney, and Justina Moore, assistant state’s
attorney, for the appellee (state).
Opinion
BORDEN, J. The defendant, Michael Nowacki,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of harassment in the second
degree in violation of General Statutes § 53a-183 (a)
(2),1 and one count of criminal violation of a protective
order in violation of General Statutes § 53a-223 (a).2
The defendant claims on appeal that: (1) the evidence
was insufficient to support a conviction of criminal
violation of a protective order; (2) the trial court
improperly denied him a subpoena for a witness critical
to his defense and improperly curtailed his testimony
regarding that potential witness, in violation of due
process; (3) the trial court improperly failed to instruct
the jury that criminal violation of a protective order is
a general intent offense; (4) his conviction of harass-
ment in the second degree violated his right to due
process because § 53a-183 (a) (2) is unconstitutional
as applied to the defendant; and (5) the trial court
improperly entered a thirty year protective order
against the defendant. We reject the defendant’s first
claim. Because we agree with the defendant on his
second and fourth claims, however, we reverse the judg-
ment of the trial court.3
The defendant was charged in an initial information
with one count of disorderly conduct in violation of
General Statutes § 53a-182, and one count of illegal use
of a motor vehicle with the intent to harass or intimidate
in violation of General Statutes § 14-240a. The defen-
dant subsequently was charged in a separate informa-
tion with one count of harassment in the second degree
in violation of § 53a-183, and was then further charged
in a third information with criminal violation of a protec-
tive order in violation of § 53a-223. The three informa-
tions were joined for trial. The jury found the defendant
guilty of criminal violation of a protective order and
harassment in the second degree, and not guilty of disor-
derly conduct and illegal use of a motor vehicle with
intent to harass or intimidate. The trial court rendered
judgment of conviction in accordance with the jury’s
verdicts. This appeal followed.
The jury reasonably could have found the following
facts in support of its verdicts. The totality of the
charges in the present case stem from the dissolution
of the defendant’s marriage to Suzanne Sullivan in 2005.
From 2005 until the end of 2009, the defendant and
Sullivan shared joint custody of their children. Starting
in October, 2009, the defendant and Sullivan jointly
employed Katelyn Waters as a nanny for their two chil-
dren. At that time, the defendant drafted an employment
agreement for Waters that both he and Waters signed.
As a result of the dissolution judgment, the defendant
was required to pay 65 percent of Waters’ salary and
expenses, including a lease of a motor vehicle for
her use.
In December, 2009, Sullivan was awarded full custody
of their two children. At that time, Waters began to
believe that she was exclusively employed by Sullivan.
Sullivan reinforced this belief by telling Waters she was
her sole employer. The defendant, on the other hand,
continued to believe that Waters was still employed by
both him and Sullivan, per the terms of the employment
agreement and in light of his payment of the majority
of Waters’ expenses.
On February 21, 2010, the defendant attempted to
contact Waters multiple times by phone about the tire
maintenance of the leased vehicle. At the time of the
calls, Waters was working at a separate job. Waters
answered one of the phone calls, informed the defen-
dant that she no longer worked for him pursuant to
the change in the children’s custody arrangements, and
asked him not to contact her again. Shortly after, the
defendant drove to Waters’ place of employment and
confronted her about the situation. Waters again asked
the defendant not to talk to her and to leave immediately
or she would contact the police. The defendant
informed Waters that he would be confiscating the
leased vehicle, which he then took with Waters’ per-
sonal property inside. Out of fear for her personal
safety, Waters called the police, who then arranged for
her personal items to be returned.
The following morning, Sullivan observed the defen-
dant in a car parked on a shared driveway in front of
her house. She then drove Waters and her younger child
to school. The defendant closely followed Sullivan’s car
in his vehicle for the entire distance to the school. After
they arrived at the school, while Sullivan was walking
the child into the building, the defendant exited his car
and banged on the rear window of Sullivan’s vehicle.
The defendant yelled at Waters through the glass in
an attempt to ask her questions. Sullivan yelled at the
defendant to get away from her car, entered her vehicle
and drove to the New Canaan Police Department to
provide a sworn statement of the morning’s events.
After returning to Sullivan’s house alone, Waters
again observed the defendant sitting in his car on the
shared driveway. Waters called the police and Kevin
Casey, an officer with the New Canaan Police Depart-
ment, responded to the call. Casey specifically warned
the defendant while they were outside Sullivan’s house
to cease all contact with Sullivan and Waters, and not
to contact them by phone, e-mail, or in person. Casey
informed the defendant that he would be arrested if
he continued to contact either Sullivan or Waters. No
protective order, however, had been issued at that time
forbidding the defendant from having contact with Sulli-
van or Waters.
The next day, February 23, 2010, the defendant sent
an e-mail to Waters that threatened legal action and
demanded compliance with the employment
agreement. Following Waters’ receipt of the e-mail, she
contacted the police, and the defendant was arrested
and charged in separate informations with disorderly
conduct and illegal use of a motor vehicle with the
intent to harass or intimidate in regards to the events
on February 22, 2010, and harassment in the second
degree in regards to the e-mail sent to Waters on Febru-
ary 23, 2010.
Following arraignment on February 24, 2010, the trial
court issued protective orders prohibiting the defendant
from having contact with either Sullivan or Waters in
any manner. On June 15, 2010, Sullivan received an
e-mail from the defendant. In addition to Sullivan, the
e-mail also was addressed to Wayne Fox, an attorney
representing the town of Darien, as well as the editor’s
desk at the Darien Times, a local newspaper. The sub-
stance of the e-mail was unrelated to the defendant’s
ongoing dispute with Sullivan.4 Sullivan testified, how-
ever, that she routinely received e-mails from the defen-
dant unrelated to her. After receiving the e-mail,
Sullivan reported the contact to the New Canaan police.
The defendant was rearrested and charged with crimi-
nal violation of a protective order.
The defendant represented himself at trial and was
found guilty of criminal violation of a protective order
and harassment in the second degree. The trial court
rendered judgment in accordance with the jury’s verdict
and sentenced the defendant to a total effective term
of five years incarceration, execution suspended after
fifteen months. It also issued a protective order forbid-
ding the defendant from contacting Sullivan or Waters
in any manner for a period of thirty years and ten years,
respectively. This appeal followed.
I
The defendant’s first claim is that there was insuffi-
cient evidence to support the conviction of criminal
violation of a protective order. He argues that the evi-
dence presented by the state was insufficient to demon-
strate a general intent to send the June 15, 2010 e-mail
to Sullivan, and in doing so, violate the protective order.
We disagree.
‘‘We begin with the well established principles that
guide our review. In reviewing a sufficiency of the evi-
dence claim, we apply a two part test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [jury] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt . . . . This court can-
not substitute its own judgment for that of the jury if
there is sufficient evidence to support the jury’s ver-
dict. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, 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 com-
bination 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. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Stephen J. R., 309 Conn. 586, 593–94,
72 A.3d 379 (2013).
Criminal violation of a protective order is a crime
requiring proof of general intent. State v. Fagan, 280
Conn. 69, 77, 905 A.2d 1101 (2006). ‘‘General intent is
the term used to define the requisite mens rea for a
crime that has no stated mens rea; the term refers to
whether a defendant intended deliberate, conscious or
purposeful action, as opposed to causing a prohibited
result through accident, mistake, carelessness, or
absent-mindedness. Where a particular crime requires
only a showing of general intent, the prosecution need
not establish that the accused intended the precise harm
or precise result which resulted from his acts.’’ (Internal
quotation marks omitted.) Id.
The defendant claims that the state provided insuffi-
cient evidence of his intent to send the e-mail to Sulli-
van. His theory of defense throughout the trial was that
the e-mail was sent to Sullivan by mistake and that he
intended to send the e-mail to Susan Shultz, a reporter
for the Darien Times, but inadvertently selected Sulli-
van’s name instead of Shultz’ when addressing the
e-mail.
The jury was not required, however, to credit this
theory. The defendant’s argument fails to distinguish
between direct and circumstantial evidence. That the
state did not provide any direct evidence that the defen-
dant intended to send the e-mail to Sullivan does not
necessarily mean that it did not provide enough circum-
stantial evidence for the jury to conclude the same.
‘‘[D]irect 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.’’ (Internal quotation marks omitted.)
Id., 80–81.
‘‘[T]he only kind of an inference recognized by the
law is a reasonable one . . . It is axiomatic, therefore,
that [a]ny [inference] drawn must be rational and
founded upon the evidence.’’ (Internal quotation marks
omitted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d
224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,
158 L. Ed. 2d 254 (2004). A reasonable juror could infer
from the testimony of Sullivan that the defendant had
previously inundated her with hundreds of e-mails. The
reasonable juror could also credit Sullivan’s testimony
that frequently those e-mails were about matters that
had nothing to do with her and that these e-mails caused
her severe distress. Prior misconduct evidence has been
held admissible for the purpose of demonstrating intent
when the defendant claims mistake or accident; see
State v. Beavers, 290 Conn. 386, 402–404 and n.17, 963
A.2d 956 (2009); and the jury could have drawn such
an inference from Sullivan’s testimony. Therefore, the
jury, assessing the evidence presented at trial, reason-
ably could have concluded that the defendant intended
to send the e-mail to Sullivan. Consequently, there was
sufficient evidence to sustain the conviction of criminal
violation of a protective order.
II
The defendant’s next claim also involves his convic-
tion of criminal violation of a protective order, which
was based entirely on his sending of the June 15, 2010
e-mail to Sullivan. Specifically, he claims that the trial
court improperly failed to issue a subpoena for a wit-
ness, Shultz, who was included on his list of witnesses
submitted to the court for subpoenas pursuant to Prac-
tice Book § 7-19,5 and prevented the defendant from
testifying about previous communications between him
and Shultz. The defendant argues that, in doing so, the
trial court violated his right to compulsory process and
to present a meaningful defense under the sixth amend-
ment, and that these violations necessitate a new trial.
We agree with the defendant.
The following additional facts are relevant to this
claim. Before trial, pursuant to Practice Book § 7-19,
the defendant submitted a list of witnesses he desired
to subpoena to testify. The extensive list totaled ninety-
four individuals. Subpoenas were denied for a vast
majority of those listed, as the trial court deemed them
irrelevant for the purposes of the criminal trial.6 Among
the individuals on the list who were rejected, however,
was Shultz, who the defendant maintained was the
intended recipient of the e-mail received by Sullivan.
When making a proffer of relevancy in a hearing
before the court, the defendant asserted that Shultz was
necessary as the person to whom he intended to send
the June 15, 2010 e-mail.7 The state did not object to
the witness or proffer. When the court released its list
of approved witnesses for subpoena it did not approve
the request to subpoena Shultz. The court did not articu-
late a reason why Shultz was not approved.
During the trial, Sullivan testified that, before the
protective order, she routinely received e-mails from
the defendant that were unrelated to her and that he
had sent her thousands of e-mails similar to the one
received on June 15, 2010. Sullivan conceded, however,
that she was unsure whether the e-mail in question in
the present claim was intended for her receipt.
The defendant testified that he intended to send the
e-mail to Shultz, but due to the similarity in their names
he accidentally sent the e-mail to Sullivan. When he
attempted to address his relationship with Shultz, how-
ever, the court excluded the testimony as irrelevant. It
further excluded any testimony involving any articles
that Shultz had written.8
It is undisputed that the state, in order to prove a
violation of a protective order, had to establish that the
defendant intended to send the e-mail in question to
Sullivan. See part I of this opinion. It is also undisputed
that the defendant’s sole theory of defense to this claim
was that he did not intend to send the e-mail to Sullivan;
rather, he intended to send it to Shultz but mistakenly
addressed the e-mail to Sullivan through his computer’s
address book. Furthermore, the state does not contest
the defendant’s assertion that Shultz’ and Sullivan’s
e-mail addresses were near each other on the e-mail
program’s address book.
The sixth amendment of the United States constitu-
tion provides in relevant part that ‘‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his
favor . . . .’’ The right to compulsory process has been
made applicable to state prosecutions through the due
process clause of the fourteenth amendment. See Wash-
ington v. Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L.
Ed. 2d 1019 (1967); see also State v. Wright, 273 Conn.
418, 423 n.5, 870 A.2d 1039 (2005). The same right is
protected under article first, § 8, of our state constitu-
tion. State v. Lockhart, 298 Conn. 537, 555, 4 A.3d
1176 (2010).
‘‘It is well established that [t]he federal constitution
require[s] that criminal defendants be afforded a mean-
ingful opportunity to present a complete defense. . . .
The sixth amendment . . . [guarantees] the right to
offer the testimony of witnesses, and to compel their
attendance, if necessary, [and] is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies.’’ (Internal
quotation marks omitted.) State v. Baltas, 311 Conn.
786, 798, 91 A.3d 384 (2014).
‘‘Although exclusionary rules of evidence cannot be
applied mechanistically to deprive a defendant of his
[compulsory process] rights, the constitution does not
require that a defendant be permitted to present every
piece of evidence he wishes.’’ (Internal quotation marks
omitted.) State v. Santana, 313 Conn. 461, 470, 97 A.3d
963 (2014). ‘‘The defendant’s sixth amendment right
. . . does not require the trial court to forgo completely
restraints on the admissibility of evidence. . . . Gener-
ally, an accused must comply with established rules of
procedure and evidence in exercising his right to pre-
sent a defense. . . . A defendant, therefore, may intro-
duce only relevant evidence, and, if the proffered
evidence is not relevant, its exclusion is proper and the
defendant’s right is not violated.’’ (Internal quotation
marks omitted.) State v. Wright, 149 Conn. App. 758,
766, 89 A.3d 458, cert. denied, 312 Conn. 917, 94 A.3d
641 (2014).
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.’’
(Internal quotation marks omitted.) State v. Shaw, 312
Conn. 85, 104–105, 90 A.3d 936 (2014). ‘‘A party is not
required to offer such proof of a fact that it excludes
all other hypotheses; it is sufficient if the evidence tends
to make the existence or nonexistence of any other
fact more probable or less probable than it would be
without such evidence. . . . Evidence is not rendered
inadmissible because it is not conclusive. All that is
required is that the evidence tend to support a relevant
fact even to a slight degree, so long as it is not prejudicial
or merely cumulative.’’ (Emphasis in original; internal
quotation marks omitted.) State v. King, 249 Conn. 645,
669, 735 A.2d 267 (1999).
To establish a violation of the right to compulsory
process when a defendant is deprived of a certain wit-
ness at trial, ‘‘[h]e must at least make some plausible
showing of how [the] testimony would have been both
material and favorable to his defense.’’ United States
v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440,
73 L. Ed. 2d 1193 (1982). ‘‘Moreover, a defendant may
not successfully establish a violation of his rights . . .
to compulsory process without first taking reasonable
steps to exercise those rights. . . . To exercise his
sixth amendment compulsory process rights diligently,
a defendant is required to utilize available court proce-
dures, such as the issuance of subpoenas, as well as
requests for continuances or material witness warrants
that may be reasonably necessary to effectuate the ser-
vice process.’’ (Citations omitted.) State v. Tomas D.,
296 Conn. 476, 498, 995 A.2d 583 (2010), overruled on
other grounds by State v. Payne, 303 Conn. 538, 564,
34 A.3d 370 (2012).
‘‘The standard of review we apply to a trial court’s
evidentiary rulings is well settled. Such rulings are enti-
tled to great deference. . . . In our review, we make
every reasonable presumption in favor of upholding the
trial court’s ruling.’’ (Internal quotation marks omitted.)
State v. Lewis, 146 Conn. App. 589, 601, 79 A.3d 102
(2013), cert. denied, 311 Conn. 904, 83 A.3d 605 (2014).
‘‘The trial judge must consider many factors in ruling
on relevancy. . . . In arriving at its conclusion, the trial
court is in the best position to view the evidence in the
context of the entire case, and we will not intervene
unless there is a clear abuse of the court’s discretion.’’
(Internal quotation marks omitted.) Id., 602–603.
In the present case the defendant presented a theory
of mistake. He testified that the act of sending the e-mail
was inadvertent and not intentional. As both parties
agreed that he did in fact send the e-mail to Sullivan,
the effectiveness of the defendant’s theory hinged on
the credibility of his testimony. Therefore, to present
an effective defense on the theory of mistake, the defen-
dant was entitled to provide the jury with the context
in which the e-mail was sent.
Concurrent with testimony he desired to present from
Shultz, the defendant also wished to provide details
about why the e-mail was being written, to whom it
was to be sent, why those people were to receive the
e-mail, and the nature of those persons’ interactions
with the defendant in order to establish the full context
for his theory of defense. The defendant pursued this
line of questioning and was able to explain, without
objection, who Fox was and why the defendant was
sending the e-mail to him. When the defendant
attempted to explain, however, the nature of his rela-
tionship with Shultz, or the context in which the e-mail
was to be sent to her, the trial court sustained the
state’s objection to the testimony as irrelevant. The
defendant’s view of the nature of his relationship with
Shultz, however, as well as the reason why he would
send her an e-mail, easily passes what our jurisprudence
has repeatedly recognized as the low hurdle of rele-
vance. See, e.g., State v. Allen, 289 Conn. 550, 562, 958
A.2d 1214 (2008); State v. Burney, 288 Conn. 548, 565,
954 A.2d 793 (2008); Lombardi v. East Haven, 126 Conn.
App. 563, 572, 12 A.3d 1032 (2011).
We conclude that the refusal of the trial court to
authorize a subpoena for Shultz as a witness and the
court’s refusal to permit the defendant to explain his
relationship with Shultz was an abuse of discretion that
deprived him of his right to compulsory process and
to present a meaningful defense. The subject matter
of Shultz’ reporting, when examined together with the
content of the defendant’s e-mail, tends to explain why
the e-mail may have been intended for Shultz. Shultz’
testimony, therefore, was uniquely valuable to the
defendant because she would have been in a position
to provide evidence that corroborated the defendant’s
theory of defense. This corroboration could well have
bolstered the defendant’s credibility as a witness and,
therefore, his claim that he did not intend to send the
e-mail to Sullivan. As we have long recognized, ‘‘[e]vi-
dence is admissible when it tends to establish a fact in
issue or to corroborate other direct evidence in the
case.’’ (Emphasis added; internal quotation marks omit-
ted.) State v. Dolphin, 178 Conn. 564, 571, 424 A.2d
266 (1979).
As the state has conceded in its brief, the defendant’s
intended recipient and purpose in sending the e-mail
was at issue in the trial, and the defendant contested
the state’s assertions in these respects as part of his
theory of defense. To consider that theory, the jury
would have had to look into the mind of the defendant
when he was sending the e-mail to determine his intent,
which the jury must infer from the defendant’s testi-
mony and other circumstantial evidence, including cor-
roborating witnesses. ‘‘Because direct evidence of an
accused’s state of mind typically is not available, his
intent often must be inferred from his conduct, other
circumstantial evidence and rational inferences that my
be drawn therefrom. . . . An accused’s own words
. . . constitute particularly compelling, direct evidence
of his intent.’’ (Citations omitted.) State v. Winot, 294
Conn. 753, 768, 988 A.2d 188 (2010).
That method of examination by the fact-finder places
the credibility of the defendant and his reliability as a
witness into stark relief. State v. Alexander, 254 Conn.
290, 297, 755 A.2d 868 (2000). When a witness’ reliability
is at issue, ‘‘the trial court must allow a defendant to
expose to the jury facts from which the jurors, as the
sole triers of fact and credibility, could appropriately
draw inferences relating to the reliability of the wit-
ness.’’ (Internal quotation marks omitted.) State v. Pro-
vost, 251 Conn. 252, 256, 741 A.2d 295 (1999), cert.
denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30
(2000). Both the defendant’s testimony and Shultz’ testi-
mony were relevant and critical to the strength of the
defendant’s defense, and as a consequence the court
improperly failed to issue a subpoena and to permit
the defendant to testify as to the context in which he
intended to send the e-mail.
The state argues that the court’s refusal to allow
the defendant to testify about Shultz and to issue the
subpoena for Shultz was harmless. It asserts that,
because the defendant was given the opportunity to
testify that the e-mail was sent erroneously, and
because it was undisputedly sent to other members of
the Darien Times and Fox, the jury was capable of
gauging the viability of the defendant’s theory without
the testimony of the intended recipient or the defen-
dant’s own contextual testimony. The state character-
ized the evidence as, at best, ‘‘minimally relevant,’’ and
cumulative of the defendant’s testimony. We are not
persuaded by the state’s argument.
When this court concludes that the trial court has
abused its discretion in making an evidentiary ruling,
we then must decide whether the impropriety was
harmless. ‘‘If an impropriety is of constitutional propor-
tions, the state bears the burden of proving that the
error was harmless beyond a reasonable doubt.’’ State
v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996).
‘‘Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evi-
dence presented at trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury,
it cannot be considered harmless.’’ (Citation omitted;
internal quotation marks omitted.) State v. Peeler, 271
Conn. 338, 399, 857 A.2d 808 (2004), cert. denied, 546
U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). The
trial court’s ruling denying a subpoena for Shultz and
limiting the defendant’s testimony regarding their rela-
tionship was not harmless beyond a reasonable doubt.
It is true that, as the state claims, the defendant was
able to testify that the e-mail was a mistake and to point
to the other recipients included in the e-mail address.
This testimony, however, was dependent on the defen-
dant’s own credibility, and the defendant was prevented
from providing a full explanation as to why it was a
mistake. Without Shultz’ corroborating evidence or the
defendant’s ability to explain the e-mail in context, how-
ever, the other addresses included on the e-mail were
consistent with Sullivan’s claim that the e-mail was
deliberately sent to her as part of the defendant’s usual
pattern of behavior prior to the protective order.
A reasonable juror upon contemplation of the evi-
dence would have had no information about Shultz at
all, beyond that she was employed by the Darien Times.
That juror would be presented with fundamental ques-
tions that would affect the credibility of the defendant’s
theory, such as why the defendant would e-mail Shultz,
how they knew each other, why Shultz would desire
the information in the e-mail, and whether they had
e-mailed about the same topic before. Shultz was the
only neutral, third-party witness who could provide
both the answers to these questions and substantiate
the defendant’s theory of defense.
Moreover, the defendant lacked alternative means to
secure Shultz’ testimony. As a non-attorney self-repre-
sented party, the defendant was dependent upon the
trial court under the provisions of Practice Book § 7-
19 to provide what normally is within the power of an
attorney. Unlike other cases in which this court has
considered requests for subpoenas by self-represented
parties denied by the trial court, the defendant’s sub-
poena of Shultz did not seek to include irrelevant infor-
mation; see Nowacki v. Nowacki, 144 Conn. App. 503,
510, 72 A.3d 1245, cert. denied, 310 Conn. 939, 79 A.3d
891 (2013); did not try to compel an individual already
present; see O’Hara v. Mackie, 151 Conn. App. 515,
518, 97 A.3d 507 (2014); and did not seek access to
information available by other means of discovery. See
Clark v. Clark, 130 Conn. App. 786, 791, 26 A.3d 640
(2011). Accordingly, the state has not met its burden of
proving the error harmless beyond a reasonable doubt.
III
With respect to the defendant’s conviction of harass-
ment in the second degree, he claims that § 53a-183 (a)
(2) is unconstitutional as applied to the facts of his case
because his conviction was dependent upon the content
of the e-mail to Waters, rather than the manner in which
it was communicated, and therefore violated his first
amendment right to free speech. We agree with the
defendant and consequently reverse his judgment of
conviction of harassment in the second degree.
The following additional facts are relevant to this
claim. When she was first employed by the defendant,
Waters signed an employment agreement articulating
her responsibilities as a full-time nanny. The agreement
set forth her wages, duties, and other associated bene-
fits. The agreement also required that forty-five days
notice be given by either party wishing to terminate the
contract. Although Waters and the defendant signed the
contract, Sullivan did not.
The e-mail to Waters focused on the alleged breach in
the agreement.9 In the e-mail, the defendant threatened
Waters with legal action due to her violation of the
employment agreement. He specifically claimed that
the statement Waters gave to the police the day before
could result in perjury charges against her. The defen-
dant further claimed that Waters was using his credit
card without permission and was withholding informa-
tion needed for tax purposes. He pointed out that he
still employed Waters as she had not provided the forty-
five days notice required by the agreement.
In the e-mail, the defendant demanded that Waters
also send a weekly e-mail accounting for her car and
cell phone use, and indicated he would be asking the
New Canaan Police Department to investigate his
claims and prosecute if necessary. He concluded by
issuing a demand for her to comply with the agreement.
Waters claimed she feared what the defendant would
do following the e-mail. She indicated that she found
the content of the e-mail threatening. As part of Waters’
testimony during trial, she testified to feeling afraid
when she received the e-mail. The state emphasized
that this fear was in part due to its connection to the
perjury charges threatened by the defendant.10
On cross-examination, Waters testified that she grew
concerned before the events starting on February 21,
2010, by the defendant’s increasingly aggressive behav-
ior toward her, Sullivan and the defendant’s children.
She admitted, however, that there were no specific
events that led to that concern. Rather, she testified
that she had heard of nonspecific aggressive behavior
through Sullivan, certain news reports of an incident
involving the defendant, and from other individuals in
the town. She conceded that her fear grew not out
of her interactions with the defendant, but out of her
understanding of what the defendant’s behavior had
generally become.
When asked by the defendant, on cross-examination,
what there was about the February 23, 2010 e-mail that
she found threatening, Waters responded by reading
the entirety of the e-mail. When asked why she did not
view the e-mail as related to her employment by the
defendant, Waters responded that she did not consider
the employment agreement to be in effect at the time
the e-mail was sent.
We begin our analysis with the legal principles that
govern the present claim. When assessing the constitu-
tionality of a statute, we exercise de novo review and
make every presumption in favor of the statute’s valid-
ity. State v. Winot, supra, 294 Conn. 758–59. We are
also mindful that ‘‘legislative enactments carry with
them a strong presumption of constitutionality, and that
a party challenging the constitutionality of a validly
enacted statute bears the heavy burden of proving the
statute unconstitutional beyond a reasonable doubt
. . . .’’ Packer v. Board of Education, 246 Conn. 89,
101, 717 A.2d 117 (1998).
‘‘Our . . . inquiry . . . extends only to those por-
tions of the statute that were applied to the defendant
in this case.’’ State v. Indrisano, 228 Conn. 795, 804,
640 A.2d 986 (1994). We therefore confine our analysis
to the provisions of § 53a-183 under which the defen-
dant was convicted, namely, subdivision (a) (2).
In his brief, the defendant argues that his conviction
under § 53a-183 (a) (2) violated the unconstitutional
vagueness doctrine because it ‘‘impermissibly delegates
basic policy matters to [police officers], judges, and
juries for resolution on an ad hoc and subjective basis.’’
Grayned v. Rockford, 408 U.S. 104, 108–109, 92 S. Ct.
2294, 33 L. Ed. 2d 222 (1972). His argument centers on
this court’s decision in State v. LaFontaine, 128 Conn.
App. 546, 16 A.3d 1281 (2011).
The court in LaFontaine addressed three distinct but
interrelated claims: that § 53a-183 (a) (3)11 was unconsti-
tutionally vague on its face; that it was unconstitution-
ally vague as applied to that case; and that the statute
was unconstitutional under the first amendment as
applied to that case. Id., 548, 549. These three types of
claims, although distinct from one another, have been
considered closely related by both our Supreme Court
and the United States Supreme Court. See Grayned v.
Rockford, supra, 408 U.S. 109; see also State v. DeLoreto,
265 Conn. 145, 165, 167–68, 827 A.2d 671 (2003).
When deciding LaFontaine, this court rejected the
notion that § 53a-183 (a) (3) was facially unconstitution-
ally vague. It concluded that, although the term ‘‘annoy’’
had been considered unconstitutionally vague in the
past, existing jurisprudence had provided sufficient
interpretive gloss to render it constitutional. State v.
LaFontaine, supra, 128 Conn. App. 553–54; see also
State v. Indrisano, supra, 228 Conn. 818–19; State v.
Cummings, 46 Conn. App. 661, 672–74, 701 A.2d 663,
cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). This
court also rejected the unconstitutional vagueness as
applied argument in LaFontaine, concluding that the
defendant in that case had not created a plausible argu-
ment to show he lacked fair warning about his conduct.
State v. LaFontaine, supra, 555.
Although the defendant in the present case couches
his challenge to § 53a-183 (a) (2) in terms of unconstitu-
tional vagueness, his argument is based on a violation
of the first amendment, as in LaFontaine. See id. That
part of the LaFontaine analysis did not discuss § 53a-
183 (a) (3) in terms of vagueness, but whether the stat-
ute was unconstitutional as applied—a free-standing
first amendment analysis, separate and apart from the
constitutional vagueness doctrine. See id. (‘‘[T]he defen-
dant is implying not that the statute gave inadequate
notice but, rather, that the statute impermissibly crimi-
nalized his speech. In other words, this is a pure first
amendment claim in the guise of a vagueness challenge
. . . .’’). The court in LaFontaine noted that, although
not facially overbroad, the prosecution under § 53a-183
in that case rested entirely on the content of the speech
and not the manner in which it was spoken. Id., 557.
In doing so, the conviction ‘‘was based on an impermis-
sible construction of § 53a-183 (a) (3), which implicated
[the defendant’s] first amendment rights.’’ (Internal quo-
tation marks omitted.) Id., 557.
In so concluding, this court reaffirmed a bright-line
rule established by our Supreme Court that had been
applied in previous constitutional challenges to § 53-
183 (a), namely, that although the state could look to
the content of a communication to establish the intent
to harass, it could not prosecute on the basis of that
content. Rather, it is the harassing manner in which the
communication took place that is prohibited. See, e.g.,
State v. Murphy, 254 Conn. 561, 568, 757 A.2d 1125
(2000) (§ 53a-183 proscribes harassing conduct of send-
ing mail, not content of mail); State v. Bell, 55 Conn.
App. 475, 481, 739 A.2d 714 (§ 53a-183 proscribes con-
duct, not content of telephone calls), 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) (same).
LaFontaine concluded that, if a prosecution of a
defendant under § 53a-183 (a) is based entirely on con-
tent, that application of the statute violates the first
amendment and must be deemed unconstitutional as
applied to that defendant’s conduct. State v. LaFon-
taine, supra, 128 Conn. App. 558. The defendant in the
present case claims that his prosecution under § 53a-
183 (a) (2) violates this longstanding rule.
As the state pointed out in its brief, however, our
Supreme Court has modified that rule. In State v. Moul-
ton, 310 Conn. 337, 362, 78 A.3d 55 (2013), the court
held that § 53a-183 (a) proscribes a manner of communi-
cation that also contains certain forms of harassing
and alarming speech, as well as conduct. The court, in
examining a single telephone call, concluded that ‘‘the
term ‘manner’ refers broadly to the way in which one
performs an act. . . . Certainly, the words that a per-
son uses during the course of a telephone call, along
with other aspects of the content of the call, including,
for example, the caller’s tone of voice, are no less inte-
gral to the determination of whether the call was made
or conducted in such a way as to harass or alarm. . . .
[T]he manner in which a call is made encompasses its
content, and is not confined solely to the timing and
placement of the call.’’ Id., 358–59.
The court placed an important caveat upon this
expansive language and limited the consideration of
content to speech that would be deemed to be unpro-
tected under the first amendment. Id., 362. Thus, Moul-
ton modified the rule in LaFontaine only insofar as
opening consideration of the content of communication
when that content falls outside protected speech; for
example, when it contains obscenities, true threats, or
fighting words. See id.; see also Virginia v. Black, 538
U.S. 343, 359, 123 S. Ct 1536, 155 L. Ed. 2d 535 (2003).
Based upon this jurisprudential shift, there are now
two steps to be taken in determining whether a prosecu-
tion under § 53a-183 (a) constitutes an unconstitutional
violation of the first amendment as applied to the defen-
dant. The defendant must first demonstrate that his
prosecution was based upon the content of his commu-
nication. If we determine that the prosecution was
based upon his conduct or manner of communication,
rather than on the content of his communication, then
our inquiry ends for purposes of a first amendment
analysis, and the statute is not unconstitutional as
applied. If, however, the defendant was prosecuted on
the basis of the content of his communication, we must
proceed to the second step, and examine that communi-
cation to determine if it falls within the wide aegis of
protected speech. If it falls within that aegis, then the
rule articulated in LaFontanie applies, and the statute
is unconstitutional as applied to the defendant’s case.
If it falls, however, in one of the narrow exceptions to
protected speech, then the rule in Moulton controls and
the statute is not unconstitutional as applied.
The defendant argues that the means by which he
was convicted was based on the content of his e-mail,
the substance of which he claims fell within the bounds
of a normal interaction between contracting individu-
als. We agree with the defendant that his conviction
rested upon the content of the e-mail, and not the con-
duct of sending it. A contract existed between the defen-
dant and Waters about her duties as a nanny. The
defendant first attempted to contact Waters, by phone,
about the maintenance of a vehicle he owned and was
leasing to her as part of her employment. The e-mail
that was sent to Waters was about her failure to comport
with provisions of her employment agreement. This
falls well within the norm for communications in a
contractual relationship.
When asked by the state about the e-mail ‘‘where the
defendant indicate[d] that [she] could be charged with
perjury,’’ Waters indicated she was threatened and
afraid. On cross-examination, she clarified what she
found ‘‘threatening’’ about the e-mail by reading the
entire content of the e-mail before the jury, and testified
that she found the entire e-mail threatening. Waters’
expressed reactions related entirely to statements
found within the e-mail. It is clear that Waters was
frightened by the content of the e-mail sent to her by
the defendant. The state’s closing argument reinforced
the notion that it was the content of the email that
frightened Waters. See footnote 10 of this opinion.
Thus, the basis for Waters’ fear was what the defen-
dant stated, not in the manner in which he provided
the statement. We agree with the defendant that the
evidence presented before the jury, specifically Waters’
own testimony, indicates that she found the content of
the e-mail troubling because of the legal threats and
the demands for compliance with her employment
agreement. Therefore, the defendant has satisfied the
first step of the Moulton inquiry.
The second step of our inquiry is straightforward.
The state concedes that the content of the defendant’s
e-mail to Waters did not fall outside the realm of pro-
tected speech. It specifically disclaims that the e-mail
contained ‘‘true threats.’’ See, e.g., State v. Krijger, 313
Conn. 434, 449, 97 A.3d 946 (2014). Although the defen-
dant threatened legal action against Waters, this is not
the type of statement contemplated within the defini-
tion of a true threat. Rather, such threats encompass
those of serious expressions of an intent to commit
an act of unlawful violence. Id., 449; see also State
v. DeLoreto, supra, 265 Conn. 154. Rather, what the
defendant sent to Waters was an e-mail from a disgrun-
tled employer to an employee. Such compliance
demands may sometimes contain threats of legal action,
as in this case. Such threats, however, are not true
threats for the purposes of the first amendment. To
criminalize an e-mail, even a contentious e-mail, which
occurs within the environment of a contract dispute
simply because one party does not wish to communi-
cate with the other violates the free speech rights of
the writer of the e-mail.
The state claims, nonetheless, that sending the single
e-mail was sufficiently threatening when placed in the
context of his and Waters’ verbal altercations before
the e-mail was sent. Our Supreme Court recognized in
Moulton that it was possible for a single act, such as a
single telephone call, to be harassing in violation of
§ 53-183 (a) based upon the circumstances surrounding
the call. State v. Moulton, supra, 310 Conn. 360 n.21.
The court also noted, however, that in such a circum-
stance ‘‘it is far more likely that a lone telephone call
will be found to be harassing or alarming on the basis
of the offensive or abusive content of the call.’’ Id.
The state concedes that there was no restraining
order or protective order issued restricting the defen-
dant’s communication with Waters. Instead, the state
argues that the defendant’s warning by Casey that he
should have no further contact with Waters after she
filed a report with the police created circumstances
sufficient to make the conduct of sending the single
e-mail harassing.
We are not persuaded that Casey’s warning to the
defendant that he would be arrested if he contacted
Waters again provided sufficient support to show that
the act of sending an e-mail was harassing conduct.
Protective orders have specific statutory requirements
that have been set out by the legislature. See, e.g., Gen-
eral Statutes § 54-1k. Nowhere in our jurisprudence
have we allowed an officer to impose what is essentially
an ad hoc criminal protective order against an individual
based upon a complaint. That Casey threatened the
defendant with arrest based on a nonexistent order
certainly does not support the notion that the defen-
dant’s conduct was somehow less than lawful.
Outside of the report to police, the only other argu-
ment made by the state was that in the days previous
to the February 23, 2014 e-mail Waters repeatedly told
the defendant that she did not desire to communicate
with him. The state asserts that, because Waters was
no longer in the defendant’s employment following the
custody adjudication that awarded Sullivan full custody
of the defendant’s children, the defendant should have
known that he was to have no more contact with Waters.
We do not find merit in this argument. Despite Waters’
insistence that she was no longer the defendant’s
employee, she did not serve the defendant with suffi-
cient prior notice to terminate her contract. In addition,
there was no evidence that the defendant’s custody
adjudication terminated the existing contract. From the
perspective of the defendant, it is unclear how he should
have been made aware of the change in their contractual
relationship prior to his argument with Waters.
More importantly, Waters’ desire to preclude any
communication from the defendant alone is not deter-
minative. Although it is possible that the history of the
relationship between two parties may be relevant as to
whether the alleged conduct is harassing, a subjective
desire to not be the recipient of communication from
an individual alone cannot support the notion that any
communication from that individual is therefore harass-
ing conduct. For example, landlords may not be
arrested for merely demanding rent of tenants simply
because the tenants do not want to speak to the land-
lord; similarly, employers may not be arrested simply
for speaking to reluctant employees who have indicated
that they do not wish to be contacted by their employer.
To be annoying or alarming, the manner of communica-
tion must be something more than that there was a
communication. Rather, the communication must be
made in a form likely to be viewed as annoying or
alarming. See State v. Buhl, 152 Conn. App. 140, 152–53,
100 A.3d 6 (evidence sufficient to support harassment
conviction when defendant sent anonymous letter as
opposed to alternative form of communication), cert.
granted, 314 Conn. 942, 103 A.3d 164 (2014).
There has not been a single instance where this court
or our Supreme Court has held that a single e-mail, sent
from a contractor to a contractee, discussing noncom-
pliance with the contract, constitutes harassing con-
duct. Typically, the provisions of § 53a-183 (a) have
been enforced in the context of a multitude of unwanted
communications; see, e.g., State v. Orr, 291 Conn. 642,
645–46, 969 A.2d 750 (2009) (defendant left multiple
angry voicemails with threats to police captain); State
v. Hopkins, 62 Conn. App. 665, 667, 772 A.2d 657 (2001)
(victim received over 139 pages of unsolicited love let-
ters over three years); State v. Snyder, 40 Conn. App.
544, 546, 672 A.2d 535 (defendant ordered dozens of
magazine subscriptions and $5000 worth of merchan-
dise delivered to victims), cert. denied, 237 Conn. 921,
676 A.2d 1375 (1996); or the misuse of letters or elec-
tronic devices for the purposes of fraudulent activity;
see, e.g., State v. Buhl, supra, 152 Conn. App. 142, 148
(defendant utilized fake Facebook profile to expose
contents of victim’s diary); State v. Adgers, 101 Conn.
App. 123, 125–26, 921 A.2d 122 (2007) (defendant sent
letters from prison to victim of sexual assault under
guise of ‘‘legal mail’’); or the violation of a protective
order or other form of court order. See, e.g., State v.
Winter, 117 Conn. App. 493, 495–96, 979 A.2d 608 (2009)
(defendant violated protective order prohibiting harass-
ment of former girlfriend), cert. denied, 295 Conn. 922,
991 A.2d 569 (2010); State v. Cummings, supra, 46 Conn.
App. 665 (same).
We therefore conclude that § 53a-183 (a) (2) is uncon-
stitutional as applied to the defendant. In LaFontaine,
after reaching the same conclusion, this court
‘‘[r]emov[ed] the defendant’s speech from consider-
ation in regard to the conduct element,’’ and then scruti-
nized the sufficiency of the remaining evidence. State
v. LaFontaine, supra, 128 Conn. App. 558; see also State
v. Moulton, 120 Conn. App. 330, 352–53, 991 A.2d 728
(2010), rev’d in part by State v. Moulton, supra, 310
Conn. 361. After doing so, we concluded that ‘‘the
remaining evidence was insufficient to sustain a convic-
tion under the statute.’’ State v. LaFontaine, supra, 558.
We come to the same conclusion in the present case.
The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal on the
charge of harassment in the second degree and for
a new trial on the charge of criminal violation of a
protective order.
In this opinion the other judges concurred.
1
General Statutes § 53a-183 (a) provides in relevant part: ‘‘A person is
guilty of harassment in the second degree when . . . (2) with intent to
harass, annoy or alarm another person, he communications with a person
by telegraph or mail, by electronically transmitting a facsimile through con-
nection with a telephone network, by computer network . . . or by any
other form of written communication, in a manner likely to cause annoyance
or alarm . . . .’’
2
General Statutes § 53a-223 (a) provides in relevant part: ‘‘A person is
guilty of criminal violation of a protective order when an order . . . has
been issued against such person, and such person violates such order.’’
3
This conclusion renders it unnecessary for us to consider the defendant’s
third and fifth claims.
4
It is not clear from the e-mail exactly what the defendant was attempting
to convey or to whom; it appeared to be related to an ongoing dispute over
a hearing before the Freedom of Information Commission. Regardless, both
the state and the defendant agreed that the substance of the e-mail did not
contain any information relevant to Sullivan.
5
Practice Book § 7-19 provides in relevant part: ‘‘Self-represented litigants
seeking to compel the attendance of necessary witnesses in connection with
the hearing of any civil matter, including matters scheduled on short calendar
or special proceeding lists or for trial, shall file an application to have the
clerk of the court issue subpoenas for that purpose. The clerk, after verifying
the scheduling of the short calendar hearing, special proceeding or trial, shall
present the application to the judge before whom the matter is scheduled for
a hearing . . . [who] shall conduct an ex parte review of the application
and may direct or deny the issuance of subpoenas as such judge deems
warranted under the circumstances. . . .’’
We note that Practice Book § 7-19 explicitly addresses civil matters, but
not criminal proceedings. Because neither side has challenged its use in a
criminal trial, however, we consider it implicitly applicable in this case,
especially given the approval that our Supreme Court has given to court-
mandated assistance of self-represented parties. See State v. Wang, 312
Conn. 222, 253, 92 A.3d 220 (2014).
6
Among the ninety persons for whom the court denied issuing subpoenas
as irrelevant were every member of the New Canaan Police Department
not involved in the present case, the first selectman of New Canaan, multiple
trial judges involved in the present case or one of his cases before the family
court, the chief justice and three associate justices of our Supreme Court,
the head of the state office of personnel and management, the Commissioner
of Children and Families, two state senators, two state representatives, a
United States senator from Connecticut, and two priests.
7
The defendant submitted the proffer as follows:
‘‘The Court: Susan Shultz, Darien Times Reporter.
‘‘[Defendant]: Right. She was the person to whom the [e-mail] of June
the [15th] was directed. It was not directed at Suzanne Sullivan. It was a
completely inadvertent act.’’
8
While testifying, the defendant, in an unusual fashion, elected to ask
himself questions while standing and then sat down to answer them. The
defendant testified in relevant part as follows:
‘‘[Defendant]: So at the moment in time at roughly 8:15 on the date of
June 17, 2010, was the first time that you became aware that you had sent
an inadvertent email that was intended for Susan Shultz of the Darien Times;
is that correct?
‘‘Yes.
‘‘Could you please briefly just describe how you came to know the Darien
Times reporter, Susan Shultz?
‘‘[Prosecutor]: Objection. Relevance.
‘‘The Court: Sustained.
‘‘[Defendant]: Did Susan Shultz write a front page article on November
18, 2009?
‘‘[Prosecutor]: Objection. Relevance.
‘‘The Court: Sustained.’’
9
The full e-mail sent by the defendant stated the following:
‘‘Kat[ie],
‘‘Please be advised you are in non-compliance with your employment
agreement. You have been warned and have continued to violate the letter
and the spirit of your employment agreement.
‘‘Especially egregious are your most recent actions relating to signing an
affidavit on false statements. The New Canaan Police Department will
receive a report tomorrow on your unauthorized use of my credit card
in December.
‘‘Furthermore, you continue to ignore multiple requests for you to contact
me about your proper accounting of withholding taxes. The failure to pay
taxes subjects you to potential criminal actions. I have repeatedly asked
you to confirm payments made to you by week.
‘‘The false police report issued on Monday potentially exposes you to
charges of perjury, which is a class D felony.
‘‘The Police Department will be getting a sworn statement from me tomor-
row refuting these sworn statements and I will be requesting that they
investigate matters and prosecute to the fullest extent of the law.
‘‘The further use of the credit card of mine will result in criminal charges
issued for any unauthorized charges.
‘‘You[r] agreement calls for a 45 day notice on your termination. Please
refer to the signed agreement relating to paid vacation time. Any premature
payments which have been received on vacation time will need to be known
to avoid overpayment.
‘‘You signed an employment agreement working for both homes. Your
failure to communicate and your insulting and demeaning comments on
parenting were not just inappropriate but define clearly that you don’t have
the best interests of the children at heart.
‘‘The children’s grades and homework related comments on their report
card alone would suggest that it would be best for us to move on.
‘‘Accordingly, your cell phone [reimbursement] and use of the car on
weekends is no longer going to be fully reimbursed. The car will not be
available to your personal use unless you pay for all gas expenses relating
to your employment elsewhere on weekends. A log of the miles attributed
to your weekend use will be deducted from your final compensation at the
standard IRS miles. Please keep a log of the use of the car on the weekends.
Failure to do so will result in legal actions. Any accidents related to weekend
usage will be your deductible to pay.
‘‘Every Monday you will need to send me an email relating to personal
usage. Failure to do so will result in the revocation of the use of the car
on the weekends.
‘‘The car is registered to me.
‘‘Therefore the responsibilities relating to the mileage overruns are mine
to monitor and maintain.
‘‘Thanks for your compliance.’’
10
The state in its closing argument stated the following:
‘‘Whether or not Kevin Casey—and I would say that this is the only thing
that seems to be disputed at all—said [the defendant would] be arrested
for it or not—is of no moment. And I would submit ladies and gentlemen,
it shouldn’t take someone saying you’re going to be arrested if you continue
to do this. It should be sufficient for Ms. Waters to say leave me alone,
enough. And what does he do? He goes home and either that night or the
next day, sends her an e-mail . . . notwithstanding her saying enough, leave
me alone, Kevin Casey saying leave her alone. And remember when he said,
he being the defendant, read to me what in this email is threatening, what
you find upsetting, what you find that could cause you vexation and the
like. She read the whole thing.
‘‘She’s a twenty-four year old college student who is being threatened by
investigation of perjury charges, felony perjury charges by this defendant
after he was told don’t have any contact with her. This wasn’t just a hey,
hello. This was a lengthy e-mail, again which the complainant indicated
found the entire thing threatening and annoying.’’
11
General Statutes § 53a-183 (a) provides in relevant part: ‘‘A person is
guilty of harassment in the second degree when . . . (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.’’ Any distinction between § 53a-183 (a) (2) and (3) has no bearing
on our analysis.