State v. Carter ( 2014 )

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STATE OF CONNECTICUT v. JAMES P.
CARTER, JR.
(AC 35511)
Bear, Keller and Pellegrino, Js.*
Argued February 20—officially released July 15, 2014
(Appeal from Superior Court, judicial district of New
Britain, D’Addabbo, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Brian
Preleski, state’s attorney, and Paul N. Rotiroti, senior
assistant state’s attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, James P. Carter, Jr.,
appeals from the judgment of conviction, rendered after
a jury trial, of murder pursuant to General Statutes
§ 53a-54a, and criminal violation of a restraining order
pursuant to General Statutes § 53a-223b. The defendant
claims that his conviction of criminal violation of a
restraining order was improper because the state pro-
vided insufficient evidence to prove that a restraining
order was in effect on the date in question that prohib-
ited him from assaulting the victim, Tiana Notice. We
disagree and affirm the judgment.
The jury reasonably could have found the following
facts. The defendant dated the victim for approximately
one year before their relationship ended in early Janu-
ary, 2009. After the relationship ended, the defendant
continued to contact the victim via text messages, tele-
phone calls, and e-mails. On January 8, 2009, the court
granted the victim’s petition for an ex parte restraining
order. The restraining order stated, inter alia, that the
defendant ‘‘shall refrain from threatening, harassing,
stalking, assaulting, molesting, sexually assaulting or
attacking the [victim].’’ The order also stated: ‘‘An ex
parte restraining order is only effective until the date
of the [scheduled] hearing unless extended by
agreement of the parties or by order of the court for
good cause shown. A restraining order after hearing
remains effective for six months from the date of the
order unless a shorter period is ordered by the court.’’
The court scheduled a hearing to take place on January
16, 2009. On February 14, 2009, the defendant stabbed
the victim eighteen times, piercing her heart and eventu-
ally killing her.
At trial, the state presented the ex parte restraining
order as evidence that the defendant was guilty of crimi-
nal violation of a restraining order. Attorney Patricia
Lindlauf, the deputy chief clerk of the New Britain judi-
cial district, testified that Judge Prestley issued the ex
parte order on January 8, 2009. She also testified that
the ex parte order prohibited the defendant from
assaulting the victim and that the order was ‘‘in effect.’’
The state did not attempt to enter into evidence a
restraining order issued after January 16, 2009, the date
of the scheduled hearing and the date that the ex parte
order was set to expire.
The defendant’s statements and the victim’s actions
after January 16, 2009, however, demonstrated that a
restraining order had been issued after the scheduled
hearing. On the day of the murder, the victim brought
two e-mails to the police that the defendant had sent
her on February 13, 2009. In one of the defendant’s
e-mails to the victim, he stated: ‘‘Please don’t tell the
cops about this . . . . Please . . . get rid of the
restraining order so I can get this job, hire me a lawyer
[and] see what’s going on with my son. I’m extremely
nervous. You know I’m taking a big risk by talking to
you.’’ On February 14, 2009, the date of the murder,
Officer Mark Connoy of the Plainville Police Depart-
ment called the defendant to investigate the e-mail.
Connoy stated to the defendant that he was investigat-
ing e-mails ‘‘sent to a certain person that aren’t sup-
posed to be sent.’’ The defendant told Connoy that he
did not send any e-mails to the victim because ‘‘we have
a restraining order against each other [and] I can’t send
her anything.’’ After Connoy indicated that he was going
to continue his investigation into the source of the
e-mails,1 the defendant ended the conversation by com-
menting: ‘‘I would never violate the restraining order.
I know that there’s [a] full restraining order and . . .
I’ve moved on.’’2 This conversation took place less than
two hours before the victim was stabbed. Additionally,
on the basis of the form that the court used to issue
the ex parte order on January 8, 2009, which was a full
restraining order that was admitted as a full exhibit,
the jury reasonably could have found that the
restraining order after hearing—the existence of which
was admitted by the defendant—included a prohibition
against assaulting the victim because the same form is
used both for ex parte restraining orders and for a
restraining order after hearing.3
After the state concluded its presentation of the evi-
dence, the defendant moved for a judgment of acquittal,
arguing that the ex parte restraining order had expired
on January 16, 2009, and that the state had not proven
beyond a reasonable doubt that there was a restraining
order in effect on February 14, 2009. The court denied
the motion on the basis of Lindlauf’s testimony that a
restraining order was ‘‘in effect,’’ and the testimony
of Corporal Patrick J. Buden of the Plainville Police
Department that he identified the defendant by search-
ing the police restraining order database.4 After the
defendant finished his presentation of the evidence, he
renewed his motion for a judgment of acquittal. The
court denied the motion on the same ground.5 The jury
found the defendant guilty of murder and violating a
restraining order. This appeal followed.6
On appeal, the defendant claims that there was insuf-
ficient evidence to convict him of violating a restraining
order because the relevant order was not entered into
evidence. He initially argues that there was insufficient
evidence to prove that a restraining order was in effect
on the date of the murder. He then argues that there
was insufficient evidence to prove the terms of any
purported restraining order. Specifically, the defendant
argues that the terms of the ex parte restraining order
are an insufficient basis from which the jury may infer
the terms of a posthearing order, and, therefore, the
evidence was insufficient for the jury to find that he
violated a restraining order.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Hasfal, 94 Conn. App. 741, 743,
894 A.2d 372 (2006). ‘‘[I]n [our] process of review, 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. Fagan, 280 Conn. 69, 80, 905
A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct.
1491, 167 L. Ed. 2d 236 (2007).
‘‘[T]he [finder of fact] must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense . . . .’’ (Internal quo-
tation marks omitted.) State v. Hasfal, supra, 94 Conn.
App. 744. ‘‘[P]roof beyond a reasonable doubt does not
mean proof beyond all possible doubt . . . nor does
proof beyond a reasonable doubt require acceptance
of every hypothesis of innocence posed by the defen-
dant that, had it been found credible by the trier, would
have resulted in acquittal. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. 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.
Fagan, supra, 280 Conn. 80.
‘‘It is within the province of the jury to draw reason-
able and logical inferences from the facts proven. . . .
The jury may draw reasonable inferences based on
other inferences drawn from the evidence presented.’’
(Internal quotation marks omitted.) State v. Winter, 117
Conn. App. 493, 507, 979 A.2d 608 (2009), cert. denied,
295 Conn. 922, 991 A.2d 569 (2010). ‘‘[I]n viewing evi-
dence which could yield contrary inferences, the [trier
of fact] is not barred from drawing those inferences
consistent with guilt and is not required to draw only
those inferences consistent with innocence. The rule
is that the [trier of fact’s] function is to draw whatever
inferences from evidence or facts established by the
evidence it deems to be reasonable and logical.’’ (Inter-
nal quotation marks omitted.) State v. Larsen, 117 Conn.
App. 202, 207, 978 A.2d 544, cert. denied, 294 Conn. 919,
984 A.2d 68 (2009). ‘‘Our review is a fact based inquiry
limited to determining whether the inferences drawn
by the jury are so unreasonable as to be unjustifiable.
. . . [W]e do not sit as a [thirteenth] juror who may
cast a vote against the verdict based upon our feeling
that some doubt of guilt is shown by the cold printed
record.’’ (Citation omitted; internal quotation marks
omitted.) State v. Winter, supra, 507.
The jury found the defendant guilty of violating a
restraining order by assaulting the victim. ‘‘[T]he viola-
tion of a protective order statute is not a specific intent
crime. All that is necessary is a general intent that the
defendant intended to perform the activities that consti-
tuted the violation.’’ (Footnote omitted.) State v.
Larsen, supra, 117 Conn. App. 208. In order to find the
defendant guilty, the jury was required to find beyond
a reasonable doubt that: (1) a restraining order was
issued against the defendant; (2) the defendant had
knowledge of the terms of the order; (3) the defendant
committed an assault against the person protected by
the order; and (4) the assault violated the order. General
Statutes § 53a-223b (a) (1) (A) and (2) (D). The defen-
dant does not argue that there was insufficient evidence
that he assaulted the victim; he argues that the evidence
was insufficient as to the remaining elements. We con-
clude that the state adduced sufficient evidence at trial
for the jury to find the defendant guilty.
There was sufficient evidence for the jury to con-
clude, beyond a reasonable doubt, that a restraining
order was issued against the defendant and that the
defendant had knowledge of the terms of the order. In
an e-mail to the victim on the day before the murder,
the defendant acknowledged the existence of the
restraining order and asked the victim to have it lifted.
More importantly, the jury listened to the defendant’s
conversation with Connoy that took place less than two
hours before the murder. During Connoy’s conversation
with the defendant, he admitted that the victim had a
restraining order against him. The defendant stated that
‘‘[the victim and I] have a restraining order against each
other,’’ and ‘‘I know there’s [a] full restraining order
. . . .’’
In addition to the evidence of the defendant’s subjec-
tive belief, there also was other independent evidence
that a restraining order was in effect. During the conver-
sation that took place two hours before the murder,
Connoy stated that he was investigating e-mails ‘‘sent
to a certain person that aren’t supposed to be sent.’’
The jury reasonably could have inferred that Connoy
stated that the e-mails should not have been sent
because there was a restraining order in place at the
time. Furthermore, as part of responding to the victim’s
911 call, police were able to determine the defendant’s
identity by searching records of domestic situations
and restraining orders. See footnote 4 of this opinion.
The jury reasonably could have found that the cumula-
tive effect of this independent evidence, coupled with
the defendant’s admission that a restraining order was
in effect, amounted to proof beyond a reasonable doubt
that a restraining order was in effect on the date of
the murder.
Not only did the defendant admit, less than two hours
before the murder, that there was a valid restraining
order in place, he also admitted that he had knowledge
of the terms of that order. The defendant told Connoy
that, pursuant to the restraining order, ‘‘I can’t send her
anything.’’ He also stated, ‘‘I would never violate the
restraining order,’’ from which the jury reasonably
could infer that he knew the terms of the restraining
order and how to comply with them. On the basis of the
defendant’s admissions during his conversation with
Connoy, we conclude that there was sufficient evidence
for the jury to find that the defendant was aware of
the restraining order’s terms, including the prohibition
against assaulting the victim.
The ex parte restraining order, which was entered
into evidence, prohibited the defendant from, inter alia,
assaulting the victim. The state argues that the ex parte
restraining order provides a reasonable basis for the
jury to infer that assaulting the victim violated the terms
of the restraining order in effect at the time of the
murder. The issue before us is whether this inference
was so unreasonable as to be unjustifiable. State v.
Winter, supra, 117 Conn. App. 507. We conclude that
it was not.
The terms of the ex parte restraining order provided
a reasonable basis for inferring that a prohibition on
assaulting the victim was a term of the subsequent
restraining order.7 The victim initially petitioned the
court for an ex parte restraining order because the
defendant continued to contact her via text messages,
telephone calls, and e-mails after their relationship
ended. The court granted the ex parte petition and
ordered the defendant to refrain from contacting or
assaulting the victim. The state introduced evidence,
however, that an e-mail from ‘‘Jessica Banderas’’ was
sent to the victim from the defendant’s computer on
January 10, 2009, and that ‘‘Jessica Banderas’’ did not
exist. The reasonable inference to be drawn from this
evidence is that the defendant continued to contact
the victim despite the ex parte restraining order and
attempted to conceal his identity to avoid being charged
with violating the restraining order.
Viewing these facts in a light most favorable to sus-
taining the verdict, as we must, the jury reasonably
could have concluded that the subsequent restraining
order prohibited the defendant from assaulting the vic-
tim. The conduct that gave rise to the ex parte
restraining order—unwanted communications via tele-
phone and e-mail—continued after the ex parte order
was issued. Because the defendant continued to engage
in the same conduct that originally resulted in the ex
parte court order, which was a full restraining order,8
it is reasonable to assume that continuing to engage in
the same conduct would result in the court’s imposing
the same terms in a subsequent restraining order,
including a prohibition on assaulting the victim.
At oral argument before this court, the defendant
argued, by way of analogy to the best evidence rule,
that the state must enter the relevant restraining order
into evidence in order to convict him of violating that
order. The best evidence rule states: ‘‘[I]n proving the
terms of a writing, where the terms are material, the
original writing must be produced unless it is shown
to be unavailable for some reason other than the serious
fault of the proponent.’’ (Internal quotation marks omit-
ted.) Brookfield v. Candlewood Shores Estates, Inc.,
201 Conn. 1, 10, 513 A.2d 1218 (1986). The purpose of
this rule is not to exclude evidence, but instead to
express the court’s preference for admitting an original
document into evidence when the document’s terms
are at issue. Id., 12. Although the best evidence rule is
not dispositive in this case, we acknowledge that it
would have been preferable for the state to enter the
operative restraining order into evidence. The fact that
the state failed to do so, however, does not make its
evidence automatically insufficient. Even though the
state’s evidence that the defendant violated the terms
of the restraining order was circumstantial, that does
not diminish its probative force or the reasonableness
of the inference that the subsequent restraining order
also prohibited the defendant from assaulting the
victim.
The jury reasonably and justifiably could have con-
cluded that the terms of the subsequent restraining
order were the same as those in the ex parte order
and, therefore, included a prohibition on assaulting the
victim. It would have been unreasonable, in light of the
evidence that tended to show that the defendant did
not comply with the ex parte order, to infer that the
court would have originally ordered the defendant to
refrain from assaulting the victim but then, in a subse-
quent restraining order, not prohibit the defendant from
doing so.9 The jury reasonably could have found that
the terms of the restraining order in effect at the time
of the murder were substantially the same as the terms
of the ex parte restraining order. See State v. Taylor,
306 Conn. 426, 436, 50 A.3d 862 (2012). We therefore
conclude that there was sufficient evidence adduced at
trial for the jury to find beyond a reasonable doubt that
assaulting the victim violated the terms of the
restraining order in effect on the day of the murder.
After consideration of the defendant’s arguments on
appeal, we note that he did not raise any objection
before the trial court that the ex parte order was irrele-
vant to proving the terms of a subsequent restraining
order. He also did not cross-examine Lindlauf to clarify
whether she was testifying to the terms of a posthearing
restraining order that was not in evidence, and, if so,
then object to her testimony on the basis of the best
evidence rule. The defendant thus allowed the state to
admit the ex parte order into evidence without objec-
tion. The evidence before the jury was sufficient for it
to find the defendant guilty of criminal violation of a
restraining order beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant suggested to Connoy during this conversation that ‘‘Jes-
sica Banderas,’’ a love interest who harbored ill will against the victim, may
have sent the e-mail in question. The police determined that ‘‘Banderas’’ did
not exist on the basis of the information that the defendant provided.
2
The ex parte order was a ‘‘full’’ restraining order because of numerous
prohibitions designed to prevent the defendant from having contact in any
manner with the victim.
3
The official form used for the ex parte restraining order in this case was
form JD-FM-139. That form is used both for an ex parte restraining order
and for a restraining order after hearing. The form sets forth each of those
choices with a box to be checked to designate which type of order is being
entered. In the middle of the first page of the form under the heading,
‘‘RESTRAINING ORDER—RELIEF FROM ABUSE,’’ is the clause, ‘‘ON THIS
DATE IT IS HEREBY ORDERED THAT . . . .’’ One of the choices is that
the ‘‘[r]espondent shall refrain from . . . assaulting . . . the Protected Per-
son.’’ On page two of the form is the statement: ‘‘A RESTRAINING ORDER
AFTER HEARING remains effective for six months from the date of the
order unless a shorter period is ordered by the court.’’
4
Corporal Buden testified that on February 14, 2009, the victim called
911 and stated that her former boyfriend had stabbed her. Buden testified
that, as part of responding to the call, he ‘‘researched [the police depart-
ment’s] in-house records’’ regarding domestic situations and restraining
orders and was able to determine the identity of the victim’s former boyfriend
because he ‘‘found the name on . . . reports from past dealings.’’
5
In doing so, the court recounted Lindlauf’s testimony: ‘‘[T]he jury can
reject [her testimony], but Ms. Lindlauf says—I had the court monitor play
it back for me—that she said there was a restraining order existing at the
time. Now, is that the clearest? No. But it’s subject to legal inference—some
logical inferences that can be drawn by a jury in making that determination.
So, for that reason the court will deny . . . [the] request for judgment
of acquittal.’’
6
The court sentenced the defendant to sixty years of incarceration for
the murder conviction and five years of incarceration for violation of the
restraining order. The sentences were to run concurrently. Although the
defendant received concurrent sentences, his appeal is not moot because
‘‘[t]he collateral consequences of a conviction are legion: subsequent convic-
tions might, as a result, carry heavier penalties and a wide range of civil
rights might be affected . . . .’’ Barlow v. Lopes, 201 Conn. 103, 112–13,
513 A.2d 132 (1986).
7
See footnote 3 of this opinion.
8
See footnote 2 of this opinion.
9
The prohibition against assaulting the victim would have been included
whether the order was a partial or full restraining order.