Fiona C. v. Kevin L. ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
FIONA C. v. KEVIN L.*
(AC 38495)
DiPentima, C. J., and Mullins and Jongbloed, Js.
Argued May 12—officially released July 12, 2016
(Appeal from Superior Court, judicial district of
Danbury, Ozalis, J.)
Bruce Seeliger, for the appellant (defendant).
Beverley Rogers, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Kevin L., appeals
from the judgment of the trial court granting the applica-
tion for a civil protection order pursuant to General
Statutes § 46b-16a filed by the plaintiff, Fiona C. On
appeal, the defendant raises interrelated claims that (1)
the court improperly interpreted General Statutes § 53a-
181d, the stalking in the second degree statute, and
(2) under the proper interpretation of that statute, the
plaintiff failed to present sufficient evidence to warrant
the granting of her application for a civil protection
order. We agree with the defendant and, accordingly,
reverse the judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to our discussion. On
August 31, 2015, the plaintiff filed an application for an
order of civil protection, alleging that she had been the
victim of stalking. She requested that the court order
that the defendant (1) not assault, threaten, abuse,
harass, follow, interfere with or stalk the plaintiff, (2)
stay away from her home, (3) not contact her in any
manner, (4) stay 100 yards away from her and (5) be
educated at a different educational facility from the one
she attended, or be home schooled. The court granted
the application and issued an ex parte civil protec-
tion order.
The court held a hearing on September 10, 2015. At
the outset, the court noted that both the plaintiff and the
defendant were under the age of eighteen. The plaintiff
testified that she and the defendant attended the same
school starting in the first grade. They were in the same
class in the third grade, and according to the plaintiff’s
testimony, an incident occurred at that time. Specifi-
cally, the plaintiff testified that the defendant had
threatened her by stating that he wanted to slit her
throat. As a result, she felt scared and after telling her
teacher about this event, the principal removed the
defendant from the plaintiff’s class. The plaintiff further
testified that although the defendant eventually
returned to her third grade class, there were no further
threats made against her either that year or during the
fourth and fifth grades when the parties were at the
same school but in different classrooms. According to
the plaintiff, during her sixth, seventh, eighth and ninth
grade years, the defendant was enrolled in a different
school. There was no interaction between the two dur-
ing that time.
In the tenth grade, the plaintiff transferred to an alter-
native high school with a single classroom, a kitchen
and an office. Less than ten students attend this school.
In the spring of 2015, the plaintiff learned that the defen-
dant would be transferred to her school when the new
school year started in August, 2015. After hearing this,
the plaintiff, who still feared the defendant, became
concerned. She informed the coordinator of the alterna-
tive school of her past history with the defendant and
her present concerns for her safety.
On the third day of school, both the plaintiff and
the defendant were present. The plaintiff informed the
administration that she could not attend school if the
defendant was present. The plaintiff then went home.
The direct examination concluded with the plaintiff’s
testimony that the defendant had a reputation for threat-
ening other students and ‘‘was not a good person.’’
On cross-examination, the plaintiff acknowledged
that the last time she had been threatened by the defen-
dant was in the third grade. Upon questioning from
the court, the plaintiff indicated that the defendant’s
threatening to ‘‘kill’’ other students and his bullying of
other students occurred throughout elementary school.
The plaintiff heard of threats made by the defendant
against others while in high school. The plaintiff’s father
then testified, after which the plaintiff’s counsel rested.
During a colloquy with the court, the plaintiff’s coun-
sel conceded that there had been no recent interactions
between the plaintiff and the defendant. After a recess,
the court concluded that it needed further evidence in
order to reach a decision on the plaintiff’s application.1
The court continued the order of protection until the
next court date.
On October 7, 2015, the hearing resumed. The court
heard testimony from various school administrators.
During a recess, the court reviewed, in camera, certain
school records of the defendant.2 After the hearing
resumed, the court noted the following on the record:
‘‘The [school] records reflect threatening statements by
[the defendant] in the second grade, third grade, [and]
fourth grade. That [the defendant] brought a weapon
to school during what appears to be third grade. It was
a knife.
‘‘That in fourth grade there were threatening state-
ments made according to the records and that it—it
was alleged in the records that he showed a weapon
to the staff.
‘‘Also, the records indicate and reflect that [the defen-
dant] has made threats to peers, and that was [during
a later time period]. And that he brought a knife to
school in the seventh grade, and that’s reflected in the
record, and that was in February of 2012 that that
action occurred.
***
‘‘But I will note for the record that in the—for the 2015
period, there were—actually beginning in November,
2014, there were at least four occasions noted in the
record in which some event occurred. Some statements
were made regarding [the defendant] that at least one
of the teachers viewed to be concerning, and that one
of the matters was referred to the dean. Because of the
cryptic nature of the notes, I have no idea what that
refers or relates to.’’
After hearing closing arguments from counsel, the
court rendered an oral decision granting the plaintiff’s
application for a civil protection order. Specifically,
the court found reasonable grounds to believe that the
defendant had committed stalking in the second degree
pursuant to § 53a-181d and that he would continue to
commit such acts or acts designed to intimidate or
retaliate against the plaintiff. The court based its find-
ings on the school records that it had reviewed and
the defendant’s ‘‘continuing course of conduct toward
peers and weapons being brought to school.’’
The defendant’s counsel asked for a clarification of
the court’s decision, specifically, what two acts consti-
tuted the course of conduct required under the stalking
statute. The court replied: ‘‘I found the initial acts of
him threatening to slit her throat and bringing a knife
into the school, and I find all of the continuing acts
that he did threatening his peers and bringing a weapon
into school. It was a consistent course of conduct
toward peers that are in his immediate vicinity.’’
The defendant’s counsel then further inquired: ‘‘Okay.
So you—so just for—so you’re—in terms of [the plain-
tiff], you’re finding just one incident where he threat-
ened to slit her throat?’’ The court responded:
‘‘Threatened to slit her throat and then his continuous
course of conduct threatening other students . . .
bringing weapons to school, threatening to harm other
students. It has continued continuously from second
grade till it appears to recently.’’ This appeal followed.
On appeal the defendant claims, inter alia, that the
court misconstrued the course of conduct element set
forth in § 53a-181d and that there was insufficient evi-
dence to grant the civil protection order on the basis
of stalking in the second degree.3 We agree with the
defendant.
The first component of the defendant’s claim is that
the court improperly construed the course of conduct
element of stalking in the second degree, which was
the predicate offense establishing the plaintiff’s eligibil-
ity for a civil protection order. ‘‘Issues of statutory con-
struction raise questions of law, over which we exercise
plenary review. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In seeking
to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Citation omitted; internal quotations
marks omitted.) State v. Moreno-Hernandez, 317 Conn.
292, 299, 118 A.3d 26 (2015); see also State v. Wright,
320 Conn. 781, 801, 135 A.3d 1 (2016). We note that ‘‘[i]t
is our duty to interpret statutes as they are written.
. . . Courts cannot, by construction, read into statutes
provisions which are not clearly stated.’’ (Internal quo-
tation marks omitted.) State v. Fetscher, 162 Conn. App.
145, 152, 130 A.3d 892 (2015), cert. denied, 321 Conn.
904, A.3d (2016).
This court recently has interpreted § 46b-16a, and
that case provides a roadmap for our analysis in the
present matter. In Kayla M. v. Greene, 163 Conn. App.
493, 503, A.3d (2016), we concluded that ‘‘an
applicant for a civil protection order on the basis of
stalking is required to prove only that there are reason-
able grounds to believe that a defendant stalked and
will continue to stalk, as described in §§ 53a-181c, 53a-
181d or 53a-181e.’’ (Emphasis in original.)
We then addressed the defendants’ claim of insuffi-
cient evidence. Id. At the outset, we noted that the
same standard of review used in cases involving civil
restraining orders under General Statutes § 46b-15
applies in cases involving § 46b-16a. Id., 504. ‘‘Thus, we
will not disturb a trial court’s orders unless the court
has abused its discretion or it is found that it could
not reasonably conclude as it did, based on the facts
presented.’’ (Internal quotation marks omitted.) Id. The
deferential standard of review, does not apply, however,
to a trial court’s interpretation and application of the
law to the facts. Id. ‘‘It is axiomatic that a matter of
law is entitled to plenary review on appeal.’’ (Internal
quotation marks omitted.) Id.; see also Stacy B. v.
Robert S., 165 Conn. App. 374, 386, A.3d (2016).
We proceeded to interpret the elements of stalking
in the second degree, one of the underlying predicate
offenses set forth in § 46b-16a (a), and the specific
offense for which the court granted the plaintiff’s appli-
cation for a civil protection order. ‘‘Stalking in the sec-
ond degree under § 53a-181d (b) (1) includes the
following elements: (1) that the respondent acting
knowingly, (2) that the respondent engaged in a course
of conduct directed at the victim, and (3) that such
conduct would cause a reasonable person to fear for
his or her physical safety or for the physical safety of
a third person.’’ Kayla M. v. Greene, supra, 163 Conn.
App. 505. We then recited the statutory definition of
‘‘course of conduct’’ as follows: ‘‘A course of conduct
is defined as two or more acts, including, but not limited
to, acts in which a person directly, indirectly or through
a third party, by any action, method, device or means,
(1) follows, lies in wait for, monitors, observes, surveils,
threatens, harasses, communicates with or sends
unwanted gifts to, a person, or (2) interferes with a
person’s property. General Statutes § 53a-181d (a).’’
(Internal quotation marks omitted.) Id., 505–506.
In the present case, the court determined that there
were reasonable grounds to believe that the defendant
had violated § 53a-181d. The court based this determina-
tion on the defendant’s threat to harm the plaintiff made
when they were in the third grade, the defendant’s con-
tinuing course of conduct of threats made toward peers,
and the weapons that he brought to school, which the
court found consistent with the plaintiff’s testimony.
Upon a request for clarification from the defendant’s
counsel, the court explained that the third grade inci-
dent and his threats toward his peers satisfied the
course of conduct elements contained in § 53a-181d
(b) (1).
Section 53a-181d (a) defines the phrase ‘‘course of
conduct’’ as requiring ‘‘two or more acts.’’ A person
violates this statute, inter alia, when he or she engages
a course of conduct directed at a specific person. See
General Statutes § 53a-181d (b) (1). Reading these two
parts of the stalking in the second degree statute
together, we conclude that the two or more acts must
be directed at a specific person, in this case the plaintiff.
The trial court employed a broader interpretation in its
analysis. Specifically, it determined that the ‘‘course of
conduct’’ was met by the defendant’s past threat to slit
the plaintiff’s throat and his later threats made toward
other students.
The court’s interpretation ignores the plain language
of § 53a-181d (a) (1) that the course of conduct be
directed at a specific person. We iterate that we are
bound to interpret the statute as it is written and can-
not ignore the words used by the legislature. ‘‘It is a
basic tenet of statutory construction that the legislature
does not intend to enact meaningless provisions. . . .
Every word and phrase [in a statute] is presumed to
have meaning, and we do not construe statutes so as to
render certain words and phrases surplusage.’’ (Internal
quotation marks omitted.) State v. Pommer, 110 Conn.
App. 608, 614, 955 A.2d 637, cert. denied, 289 Conn. 951,
961 A.2d 418 (2008).
We find support for this interpretation in our case
law. For example, in Sherman v. Niewola, Superior
Court, judicial district of Tolland at Rockville, Docket
No. CV-15-4022631-S (April 29, 2015), the Superior Court
noted that one of the elements of stalking in the second
degree is that the perpetrator embark on a course of
conduct directed toward an applicant for a civil protec-
tion order. In other words, the course of conduct, statu-
torily defined as two or more acts, must be directed at
the same person. See also Stacy B. v. Robert S., Superior
Court, judicial district of Waterbury, Docket No. CV-
15-4034547-S (May 28, 2015) (court found probable
cause that perpetrator committed crime of stalking
given his course of conduct directed at applicant for
civil protection order), aff’d, Stacy B. v. Robert S., supra,
165 Conn. App. 374; see generally State v. Arthurs,
121 Conn. App. 520, 524–25, 997 A.2d 568 (2010), cert.
denied, 310 Conn. 957, 82 A.3d 626 (2013); State v.
Culmo, 43 Conn. Supp. 46, 60, 642 A.2d 90 (1993).4
Finally, we note that in Kayla M. v. Greene, supra, 163
Conn. App. 516, we concluded that the court properly
granted the plaintiff’s application for a civil protection
order against the defendants. In reviewing the claim of
one of the defendants, we agreed that she had ‘‘know-
ingly engaged in a course of conduct [i.e., multiple acts]
directed at the [plaintiff] that would cause a reasonable
person to fear for such person’s physical safety.’’
(Emphasis added; internal quotation marks omitted.)
Id., 514. For these reasons, we conclude that the trial
court misconstrued the course of conduct element con-
tained in the stalking in the second degree statute.
We next turn to the second component of the defen-
dant’s appellate argument, that is, under a proper inter-
pretation of the § 46b-16a, there was insufficient
evidence for the court to grant the plaintiff’s application
for a civil protection order. We agree with the defendant
that the court’s finding regarding the course of conduct
element of the predicate offense of stalking in the sec-
ond degree was not supported by the evidence, and,
therefore, was improper. We conclude, therefore, that
the court abused its discretion in granting the applica-
tion for a civil protection order. See Kayla M. v. Greene,
supra, 163 Conn. App. 504.
The plaintiff presented evidence of the threat made
against her by the defendant when they both were in the
third grade. We assume, arguendo, that his statement
constituted an act in which he threatened a specific
person. See General Statutes § 53a-181d (a) and (b) (1).
The dispositive inquiry is whether there was evidence
of a second act directed against the plaintiff necessary
to satisfy the ‘‘course of conduct’’ element of § 53a-
181d. We conclude that there was no evidence of a
second act directed against the plaintiff.
The plaintiff testified that there had been no interac-
tions with the defendant when they were in the fourth,
fifth, sixth, seventh, eighth, ninth or tenth grades. In
its oral decision, the court focused on the defendant’s
conduct with respect to his peers at school but, aside
from the third grade incident, his conduct was not
directed toward the plaintiff. Upon a request for clarifi-
cation, the court stated the basis for its finding of a
course of conduct as follows: ‘‘I found the initial act of
him threatening to slit her throat and bringing a knife
into school,5 and I find all of the continuing acts that
he did threatening his peers and bringing a weapon into
school including a knife. It was a consistent course
of conduct toward peers that are in his immediate
vicinity.’’ (Footnote added.) The court then iterated:
‘‘Threatened to slit her throat and then his continuous
course of conduct threatening other students – bringing
weapons to school, threatening to harm other students.
It has continued continuously from second grade till it
appears to recently.’’
After a thorough review of the record, we conclude
that there was no evidence of a second act by the
defendant directed specifically at the plaintiff. The
court relied on the defendant’s actions against his peers
in his immediate vicinity. There was no finding that the
plaintiff was part of this group. Moreover, the plaintiff’s
own testimony would not support such a finding. Simply
put, the record does not support a finding that the
defendant had engaged in a course of conduct directed
against the plaintiff. As a result, the court’s determina-
tion that the defendant had committed behavior consti-
tuting stalking in the second degree was improper. We
conclude, therefore, that the court abused its discretion
in granting the application for a civil protection order.
The judgment is reversed and the case is remanded
with direction to vacate the order of protection.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interest of the
applicant for a protective order, we decline to identify the applicant or
others through whom the applicant’s identity may be ascertained.
1
Specifically, the court stated: ‘‘I’ve had the opportunity to consider the
statute and also the testimony and the evidence that’s been produced today.
I have serious concerns here about this issue and I feel like I do not have
sufficient evidence in front of me, not to make a decision on this application.
‘‘And I find that there [are] reasonable grounds for the [plaintiff] to be
concerned with respect to [the defendant]. However, I don’t know whether
or not those concerns are within the recent history of events. There’s been
testimony here today about threats by [the defendant] within the last few
years as to other students and I want to know more about that.
‘‘And I’m going to continue this hearing out for two weeks. I want the
school administrator here. I want you to subpoena her. And I want to know
about what the school knows about the—if any, if they exist, whether there
have been any threats at any of the schools. And that’s the issue we’re going
to focus on at the two week period.
***
‘‘This is a [plaintiff] who has been threatened by [the defendant], albeit
years ago. And he did threaten to slit her throat and there’s evidence before
the Court, as to how both of their lives have proceeded over the last few
years. And before I make a decision on how this serious issue should
proceed, because it impacts both your lives on how you’re getting your
education, I want this information from the school.’’
2
These school records are not part of the record before us, and, therefore,
we have not reviewed them.
3
The defendant also argued that the court improperly determined, as a
matter of law, that § 46b-16a applied retroactively. Because we agree with
the defendant that the court misinterpreted the stalking statute and, as
result, there was insufficient evidence to grant the plaintiff’s application for
a civil protection order on that basis, we need not address the claim regarding
the retroactive application of § 46b-16a.
4
We are mindful that under the prior version of § 53a-181d (a), the perpe-
trator was prohibited from wilfully and repeatedly following or lying in wait
for another person. Kayla M. v. Greene, supra, 163 Conn. App. 510 and n.8.
General Statutes (Rev. to 2012) § 53a-181d (a) provided in relevant part: ‘‘A
person is guilty of stalking in the second degree when, with intent to cause
another person to fear for his physical safety, he wilfully and repeatedly
follows or waits for such other person and causes such other person to
reasonably fear for his physical safety. . . .’’ Nevertheless, this prior version
of the statute, and the cases interpreting it, support our conclusion that
same person must be the target or object of the perpetrator’s acts.
5
We note that there is no evidence of a second incident involving a knife
and the plaintiff when she was in the third grade.