State v. Meadows , 185 Conn. App. 287 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. CODY MEADOWS
(AC 40472)
Sheldon, Elgo and Flynn, Js.
Syllabus
Convicted of two counts each of the crimes of criminal violation of a standing
criminal protective order in violation of statute (§ 53a-223a) and threat-
ening in the second degree, the defendant appealed to this court. The
defendant’s conviction stemmed from his actions toward the victim
while they appeared before the juvenile court in New Haven for a hearing
relating to their children. At the time, the defendant, pursuant to the
terms of a standing criminal protective order, was to have no contact
with the victim in any manner and was not to, inter alia, threaten or
harass her. In addition, the order included a limited exception that
contact with the victim was allowed only for purposes of visitation with
the children as directed by the family court. At the beginning of the
hearing, the defendant tried to make small talk with the victim, who
ignored him. He then told her that he loved her and asked her why she
had blocked her telephone, but she continued to ignore him and to look
toward the judge. At that point, the defendant threatened to harm the
victim and to kill her. The victim considered the defendant’s statements
to be real threats, and she was fearful after she heard them. At the
conclusion of the hearing, the defendant met with a social worker.
During the meeting, the defendant appeared upset and made comments
to the social worker that he was going to hurt the victim. In the first
count of the substitute information, the state alleged that the defendant
had violated the standing criminal protective order by having contact
with the victim, and, in the second count, the state alleged that the
defendant had violated the protective order by threatening and harassing
the victim. After a jury trial, the defendant was convicted on all counts
against him. Held:
1. The defendant could not prevail on his unpreserved claim that his convic-
tion of two counts of criminal violation of a standing criminal protective
order violated his right to be free from double jeopardy because the
offenses charged in the counts arose out of the same act: the defendant’s
conversation with the victim was separable into distinct acts, each
punishable as a separate offense but one of which involved a more
culpable conduct than the other, the defendant having first engaged in
conversation with the victim, unrelated to visitation with their children,
which amounted to contact with a person protected under the standing
criminal protective order, and then he proceeded to harass the victim
and to threaten her with death, which amounted to threatening and
harassing and violated additional terms of the standing criminal protec-
tive order, and, therefore, those two distinct acts, both undertaken by
the defendant, were separately punishable under § 53a-223a, and by
convicting and sentencing the defendant on two separate counts, one
for each distinct violation of the protective order, the court did not
punish the defendant twice for a single offense but, rather, convicted
him of two completed and distinct violations of the same statute; more-
over, the defendant’s reliance on certain case law in support of his claim
that his conduct was one continuous criminal offense was misplaced,
as those cases were distinguishable from the present case in that the
defendant’s conduct could be dissected into separate and distinct acts
prohibited by the same statute and was not a single, continuous criminal
offense, and the state charged him with two different acts that violated
two separate provisions of the protective order.
2. The defendant could not prevail on his claim that the trial court errone-
ously instructed the jury as to the second count of criminal violation
of a standing criminal protective order by providing the jury with an
incorrect definition of ‘‘harassing conduct,’’ instead of using the higher
standard set forth in State v. Larsen ( 117 Conn. App. 202): although the
trial court defined the term ‘‘harassing’’ as ‘‘trouble, worry, or torment,’’
which was different from the definition used in Larsen, the distinction
was not so great as to implicate the fairness of the defendant’s trial, as
this court was satisfied that the trial court’s definition conveyed equally
and sufficiently the definition this court employed in Larsen, and, in
instructing the jury as it did, the trial court employed the definition
of harass that more commonly is applied to describe that element of
§ 53a-223a.
3. The defendant could not prevail on his claim that his conviction of threat-
ening in the second degree pursuant to statute ([Rev. to 2015] § 53a-62
[a] [3]) should be reversed because it constituted a violation of the first
amendment to the United States constitution, which was based on his
claims that because, pursuant to Virginia v. Black (538 U.S. 343), the
true threats doctrine now requires that he possessed a subjective intent
to threaten the victim and the intent element of § 53a-62 (a) (3) may be
satisfied with recklessness, that statute is unconstitutional, and that, by
reading a subjective intent element into a federal criminal statute that
penalized threats made in interstate commerce, the United States
Supreme Court in Elonis v. United States (135 S. Ct. 2001) signaled
approval of that element as essential to establish liability under the true
threats doctrine of the first amendment: in Elonis, the court expressly
declined to address any first amendment issues and left the elements
of the true threats doctrine undisturbed, and, therefore, Elonis did not
abandon the existing standard for the true threats doctrine sub silentio
and had no bearing on whether the defendant must possess subjective
intent for purposes of the true threats doctrine; moreover, the constitu-
tional necessity of a subjective intent element was never at issue in
Black, and, therefore, this court declined to read Black as making the
change to the true threats doctrine as proposed by the defendant, and
concluded that the objective standard, which has been the traditional
standard in this state for the true threats doctrine, remained valid.
Argued May 22—officially released October 9, 2018
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of criminal violation of
a standing criminal protective order and threatening in
the second degree, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before O’Keefe, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Laura Deleo, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Cody Meadows, was con-
victed after a jury trial of two counts of criminal viola-
tion of a standing criminal protective order in violation
of General Statutes § 53a-223a, one count of threatening
in the second degree in violation of General Statutes
(Rev. to 2015) § 53a-62 (a) (2)1 and one count of threat-
ening in the second degree in violation of § 53a-62 (a)
(3). On appeal, the defendant claims that (1) the two
convictions for violation of the standing criminal pro-
tective order violated his protection against double
jeopardy, (2) the trial court erroneously instructed the
jury as to the second count of violation of a standing
criminal protective order, and (3) his conviction under
§ 53a-62 (a) (3) violated his right to freedom of speech
under the first amendment to the United States constitu-
tion. We disagree and affirm the judgment of the trial
court.
The jury reasonably could have found the following
facts. On September 1, 2015, the defendant, along with
the victim,2 the mother of his children, appeared before
the juvenile court in New Haven for a hearing relating
to their children. At the time, the defendant, pursuant
to the terms of a standing criminal protective order,
was to have no ‘‘contact [with the victim] in any manner,
including by written, electronic or telephone [communi-
cation]’’ and was not to ‘‘assault, threaten, abuse,
harass, follow, interfere with, or stalk the [victim].’’ As
an exception, the order provided that ‘‘contact with [the
victim was] only allowed for purposes of visitation as
directed by [the] family court.’’ As the hearing began,
the defendant tried to ‘‘make small talk’’ with the victim,
who ignored him. According to the victim, the defendant
tried to tell her that he loved her and asked her why
she had blocked her telephone, but she continued to
ignore him and to look toward the judge. At this point,
the defendant told the victim, ‘‘you’re going to have
problems when I get home, bitch.’’ The victim then
looked at the defendant who mouthed that he was going
to ‘‘f---ing kill [her].’’ The victim told the defendant that
she could hear him and that he should stop threatening
her. The defendant remarked that he was not threaten-
ing; thereafter, he stopped trying to converse with the
victim. The victim considered the defendant’s state-
ments to be real threats, and she was fearful after she
heard them.
At the conclusion of the hearing, the defendant met,
at the courthouse, with a social worker, Shannon
McGinnis. During the meeting, the defendant appeared
upset and told McGinnis that ‘‘if he’s not with [the
victim], he’s going to make sure nobody else is with
her.’’ The defendant then said that, ‘‘if [the victim]
chooses not to be with him, he will beat the f---ing
shit out of her’’ and would ‘‘make her another Tracey
Morton.’’3 The defendant also said that ‘‘[h]e would kill
himself or die suicide by cops . . . .’’ At this point,
McGinnis informed the defendant that his statements
were concerning and that she would have to tell others
about them; the defendant then stopped making such
statements. Afterward, McGinnis met with the victim
and informed her that during their meeting the defen-
dant had threatened to hurt the victim. The victim there-
after contacted the state police and, after meeting with
a state police officer, signed a statement that had been
prepared by the officer. At trial, the victim testified that
she believed the threats against her were real and that
she had feared the defendant even though he was in
prison, where he would remain for seven more months.
The state subsequently charged the defendant in a
four count information with two counts of violation of
a standing criminal protective order and two counts of
threatening in the second degree. After a jury trial,
the defendant was convicted on all four counts. This
appeal followed.
I
The defendant first claims that his conviction for two
counts of violation of a standing criminal protective
order violated his right to be free from double jeopardy.
He argues that count one of the information, which
alleged a violation of the protective order by having
contact with the victim, and count two of the informa-
tion, which alleged a violation of the protective order
by threatening and harassing the victim, arose out of
the same act. Specifically, the defendant argues that
his conversation with the victim inside the courtroom
was a ‘‘single, continuous, [and] uninterrupted’’ act, and
that it, therefore, cannot be dissected and penalized
as two separate acts. Because the court rendered a
judgment of conviction on two counts of violation of
a standing criminal protective order resulting from that
single conversation, the defendant claims his right
against double jeopardy was violated.4 In support of
this argument, the defendant relies on Rowe v. Superior
Court, 289 Conn. 649, 667–68, 960 A.2d 256 (2008), and
State v. Nixon, 92 Conn. App. 586, 590–91, 886 A.2d
475 (2005). Additionally, the defendant argues that the
language of § 53a-223a (c) exemplifies the legislature’s
intent to make a violation of a standing criminal protec-
tive order punishable only once. We disagree.
The defendant did not preserve this claim at trial,
nor has he asked, on appeal, for review under State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989).5 Neverthe-
less, ‘‘[a] defendant may obtain review of a double jeop-
ardy claim, even if it is unpreserved, if he has received
two punishments for two crimes, which he claims were
one crime, arising from the same transaction and prose-
cuted at one trial . . . . Because the claim presents an
issue of law, our review is plenary. . . . Double jeop-
ardy analysis in the context of a single trial is a two-
step process. First, the charges must arise out of the
same act or transaction. . . . Second, it must be deter-
mined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Citations omitted; internal
quotation marks omitted.) State v. Nixon, supra, 92
Conn. App. 590–91.
Counts one and two of the state’s long form informa-
tion respectively charged that the defendant (1) ‘‘vio-
late[d] the . . . protective order . . . by having
contact with the protected person, in violation of . . .
[§] 53a-223a’’ and (2) that the defendant ‘‘violate[d] the
. . . protective order . . . by threatening and harass-
ing the protected person, in violation of . . . [§] 53a-
223a.’’ Although these counts charge the defendant
under the same statute, we conclude that the offenses
charged did not arise out of the same act. Our courts
have long held that ‘‘distinct repetitions of a prohibited
act, however closely they may follow each other . . .
may be punished as separate crimes without offending
the double jeopardy clause. . . . The same transaction,
in other words, may constitute separate and distinct
crimes where it is susceptible of separation into parts,
each of which in itself constitutes a completed offense.
. . . [T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Internal quotation marks
omitted.) State v. Miranda, 260 Conn. 93, 120, 794 A.2d
506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.
Ed. 2d 175 (2002); see also State v. Morales, 164 Conn.
App. 143, 157, 136 A.3d 278 (same), cert. denied, 321
Conn. 916, 136 A.3d 1275 (2016); State v. James E., 154
Conn. App. 795, 833, 112 A.3d 791 (2015) (same), cert.
denied, 321 Conn. 911, 136 A.3d 1273 (2016).
In other words, the fact that a defendant’s two sepa-
rate charges of violation of a standing criminal protec-
tive order arise from acts that closely follow one
another is not determinative, by itself, of whether they
constitute a single criminal offense. Rather, the question
is whether each act charged by the state is susceptible
of separation into parts which are separate, complete
offenses and are thus punishable under the controlling
statute. The contact described in the first count is less
culpable than the conduct charged in the second. In
the first count, the defendant is merely charged with
prohibited contact with the victim. In the second, he
is charged with threatening and harassing the victim.
Each of these charges, based upon a separate act, was
a separate offense that led to a separate conviction.
In State v. Miranda, supra, 260 Conn. 120, our
Supreme Court considered whether the defendant, who
had been convicted of two counts of assault in the first
degree for injuries resulting to a minor child in his
care, was being punished twice for the same offense.
In answering that question in the negative, our Supreme
Court concluded that the defendant’s failure to act,
which had resulted in two separate injuries to the vic-
tim, constituted two separate acts of omission rather
than one continuous failure to act. Id., 124. Similarly,
in State v. James E., supra, 154 Conn. App. 831, the
defendant shot the victim twice and was convicted of
two counts of assault of an elderly person in the first
degree, which he claimed violated his right against dou-
ble jeopardy. This court held that each shooting was a
separate and distinct act because the defendant first
removed the gun from his cabinet, turned toward the
victim and shot him; the defendant then, approached
the victim, grabbed his shirt and shot him again. Id., 834.
In the present case, the defendant’s conversation with
the victim likewise is separable into distinct acts, each
punishable as a separate offense but one of which
involves a more culpable conduct than the other.6 It
was one thing for the defendant to tell the victim he
loved her; it was another to tell her, a few breaths later,
that she was a bitch, whom he would kill when he got
home. The defendant first engaged in conversation with
the victim, unrelated to visitation with their children,
which amounted to contact with a person protected
under the standing criminal protective order. The defen-
dant then proceeded to harass the victim and to threaten
the victim with death, which amounted to threatening
and harassing and violated additional terms of the
standing criminal protective order. These two distinct
acts, both undertaken by the defendant, were sepa-
rately punishable under § 53a-223a. By convicting and
sentencing the defendant on two separate counts, one
for each distinct violation of the protective order, the
court did not punish the defendant twice for a single
offense. Rather, the court convicted the defendant of
two completed and distinct violations of the same
statute.
We also consider the defendant’s reliance on Rowe
and Nixon and conclude that this reliance is misplaced.
In Rowe v. Superior Court, supra, 289 Conn. 675–76,
our Supreme Court concluded that the plaintiff’s refusal
to answer two questions, constituted one, continuous
act of contempt. In reaching that conclusion, however,
the court specifically noted that the United States
Supreme Court, in Yates v. United States, 355 U.S. 66,
78 S. Ct. 128, 2 L. Ed. 2d 95 (1957), had ‘‘recognized
three circumstances in which multiple refusals to testify
may be punished only as a single act of contempt: when
the witness refuses to give any testimony at the outset
and adheres to that refusal (blanket refusal); when the
witness refuses to give testimony ‘within a generally
defined area of interrogation’ (area of refusal) . . . and
when the witness refuses to answer questions relating
to the same fact or subject of inquiry (subject of
inquiry).’’ (Citation omitted.) Rowe v. Superior Court,
supra, 667. The court in Rowe then concluded that the
plaintiff’s refusal to answer questions could be viewed
either as a blanket refusal or refusal to answer questions
on a particular subject area, because the subject on
which the plaintiff had refused to provide testimony
was the only subject matter on which the state had
sought to question him. Id., 675. For that reason, the
plaintiff’s refusal to answer any questions was one con-
tinuous act of contempt. Id.
In the present case, there is no mandate similar to
Yates by our Supreme Court that defines conduct pro-
tected under the double jeopardy clause in the context
of violating a protective order. Moreover, unlike Rowe,
the defendant’s conduct in the present case can be
dissected into separate and distinct acts prohibited by
the same statute, albeit occurring within the same con-
versation. It is not, therefore, a single continuous crimi-
nal offense.
Similarly, we conclude that Nixon is inapposite. In
Nixon, this court concluded that the defendant’s rights
under the double jeopardy clause were violated by his
conviction of two counts of assault in the second
degree, resulting from his stabbing the victim twice.
State v. Nixon, supra, 92 Conn. App. 597. The stabbing
was against one victim and was continuous, uninter-
rupted and close in time. Consequently, we rejected the
state’s claim in Nixon that each knife stab constituted a
separate assault. In reaching that conclusion, we noted
specifically that the state, in both counts of assault, had
charged the defendant in the exact same manner. Id.,
590. We noted, additionally, that the ‘‘defendant twice
stabbed the same victim, at the same place and during
the same time period, with the same instrument, with
the same common intent to inflict physical injury during
one continuous, uninterrupted assault.’’ Id., 591. We,
therefore, held that the conviction of two separate
counts of assault, based on one continuous assault,
violated double jeopardy. Id., 597.
In the present case, however, the state charged the
defendant with two different acts that violated two sep-
arate provisions of the standing criminal protective
order. Particularly, the defendant’s initial words, his
attempt to engage in ‘‘small talk,’’ and his telling the
victim that ‘‘he loved her,’’ by themselves, likely would
not support a conviction on the state’s second count,
which alleged a violation of the standing criminal pro-
tective order by threatening and harassing the victim.
After engaging in this conversation, however, the defen-
dant then went on to threaten to kill the victim, which
constituted a separate act in violation of the protective
order. For these reasons, the convictions did not violate
the defendant’s right to be free from double jeopardy.
The acts charged were separate and distinct, and it
matters not that they arose from the same conversa-
tion.7 See State v. Miranda, supra, 260 Conn. 119.
II
The defendant next claims that the trial court errone-
ously instructed the jury as to the second count of
violation of a standing criminal protective order. Specif-
ically, the defendant claims that the trial court provided
the jury with the incorrect definition of ‘‘harassing con-
duct,’’ for the second count of violation of a standing
criminal protective order. The defendant contends that
the court instead should have used the definition set
forth in this court’s opinion in State v. Larsen, 117 Conn.
App. 202, 209 n.5, 978 A.2d 544, cert. denied, 294 Conn.
919, 984 A.2d 68 (2009), which, according to the defen-
dant, set a higher threshold for ‘‘harassing’’ conduct.
We disagree.
The defendant did not object to the court’s charge
at trial and submitted no request to charge suggesting
the language he now argues on appeal was mandated,
nor does he now seek review pursuant to State v. Gold-
ing, supra, 213 Conn. 233. We extend review, however,
pursuant to State v. Elson, 311 Conn. 726, 754–55, 91
A.3d 862 (2014), because the claim that the jury was
not instructed properly as to an essential element of a
crime is a claim of constitutional magnitude. ‘‘It is . . .
constitutionally axiomatic that the jury be instructed
on the essential elements of a crime charged. . . . A
claim that the trial court failed to instruct the jury ade-
quately on an essential element of the crime charged
necessarily involves the defendant’s due process rights
and implicates the fairness of his trial.’’ (Internal quota-
tion marks omitted.) State v. Felder, 95 Conn. App. 248,
258, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d
1226 (2006).
In the second count of its information, the state
charged the defendant with violation of a standing crim-
inal protective order by ‘‘threatening and harassing the
protected person . . . .’’ At trial, the court instructed
the jury as to this count as follows: ‘‘In this case, the
state alleges that threatening or harassing the complain-
ant was forbidden by the order, and you have the order.
As far as what’s the definition of a threat, use the same
definition that I’m going to give you on threatening. As
far as what’s harassing, harassing is to trouble, worry,
or torment; that’s the legal definition. Trouble, worry,
or torment. A person acts intentionally with respect to
conduct when his conscious objective is to engage in
such conduct. That’s general intent. In summary, the
state must prove beyond a reasonable doubt (1) that a
court issued a standing criminal protective order
against the defendant; and (2) the defendant violated
a condition of that order; and in count two, we’re talking
about an allegation that he violated a prohibition in an
order that required him not to threaten or harass the
complainant.’’ (Emphasis added.)
The plaintiff contends that in using the words ‘‘trou-
ble, worry, or torment,’’ the trial court improperly
defined the term ‘‘harassing’’ to the jury, which, instead,
is defined by the higher standard set forth in Larsen.
In that case, after a trial to the court, the defendant
was convicted of two counts of criminal violation of a
protective order, and one count of criminal violation
of a restraining order. State v. Larsen, supra, 117 Conn.
App. 203. On appeal, the defendant claimed that the
state failed to prove that she had the requisite intent to
violate the orders. Id., 204. In rejecting the defendant’s
claim, we noted that the dictionary definition of
‘‘harass’’ was ‘‘to annoy persistently . . . to create an
unpleasant or hostile situation . . . by uninvited and
unwelcome verbal or physical conduct.’’ (Internal quo-
tation marks omitted.) Id., 209 n.5. In light of this dic-
tionary definition, we concluded that the court
reasonably could have found that the defendant hara-
ssed the victim. Id., 210.
In the present case, although the definition employed
by the trial judge is different from the one this court
used in Larsen, the distinction is not so great as to
implicate the fairness of the defendant’s trial. Specifi-
cally, the defendant’s contention that ‘‘troubled’’ is a
much lower standard than to ‘‘annoy persistently’’ is
unavailing. The word ‘‘annoy’’ means to ‘‘disturb or irri-
tate especially by repeated acts.’’ Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) p. 50. ‘‘Trouble’’
means to ‘‘agitate mentally or spiritually’’ and is synony-
mous with ‘‘worry,’’ which means ‘‘to assail with rough
or aggressive attack or treatment’’ or to ‘‘subject to
persistent or nagging attention or effort’’ and is synony-
mous with ‘‘torment.’’ (Emphasis added.) Id., 1342, 1444.
‘‘Torment,’’ in turn, means ‘‘to cause severe, usually,
persistent or recurrent distress.’’ (Emphasis added.)
Id., 1319. When compared fully, we are satisfied that
the definition, ‘‘trouble, worry, or torment,’’ conveys
equally and sufficiently the definition this court
employed in Larsen. Accordingly, we reject the defen-
dant’s argument that the use of this definition resulted
in constitutional error.
Moreover, in using this instruction, the trial court
employed the definition of ‘‘harass’’ that more com-
monly is applied to describe that element of § 53a-223a
(c). See, e.g., State v. Hersey, 78 Conn. App. 141, 161,
826 A.2d 1183 (considering different instructional chal-
lenge to charge that defined ‘‘harass’’ as ‘‘to trouble,
worry or torment’’ [internal quotation marks omitted]),
cert. denied, 266 Conn. 903, 832 A.2d 65 (2003); State
v. Charles, 78 Conn. App. 125, 130, 826 A.2d 1172 (same),
cert. denied, 266 Conn. 908, 832 A.2d 73 (2003).8 Conse-
quently, we are not persuaded that the court errone-
ously instructed the jury on this element.
III
The defendant finally claims that his conviction for
threatening in the second degree in violation of § 53a-
62 (a) (3), should be reversed because it constitutes a
violation of the first amendment to the United States
constitution. That section provides in pertinent part
that ‘‘[a] person is guilty of threatening in the second
degree when . . . such person threatens to commit
any crime of violence with . . . reckless disregard of
the risk of causing such terror . . . .’’ General Sta-
tutues (Rev. to 2015) § 53a-62 (a) (3). The defendant
argues that pursuant to Virginia v. Black, 538 U.S. 343,
123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003), the true threats
doctrine now requires that he possess a subjective
intent to threaten the victim. Because the intent element
of § 53a-62 (a) (3) may be satisfied with recklessness,
the defendant claims that the statute is unconstitu-
tional. Additionally, the defendant argues that the deci-
sion of our Supreme Court in State v. Krijger, 313 Conn.
434, 97 A.3d 946 (2014), rendered after Black, left open
the constitutional question he now poses. Moreover,
the defendant asserts that Elonis v. United States,
U.S. , 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), a more
recent decision of the United States Supreme Court,
signals the court’s approval of a subjective intent
requirement to make speech punishable under the true
threats doctrine. Because Elonis was decided after our
Supreme Court’s decision in Krijger, the defendant
urges us to abandon the objective standard applied
by our Supreme Court in that case and to adopt the
subjective intent standard in Elonis. We are not per-
suaded by the defendant’s arguments.
Although the defendant makes this claim for the first
time on appeal and does not seek review under Golding,
we review his claim pursuant to State v. Elson, supra,
311 Conn. 754–55. ‘‘The constitutionality of a statute
presents a question of law over which our review is
plenary.’’ (Internal quotation marks omitted.) State v.
Book, 155 Conn. App. 560, 564, 109 A.3d 1027, cert.
denied, 318 Conn. 901, 122 A.3d 632 (2015), cert. denied,
U.S. , 136 S. Ct. 2029, 195 L. Ed. 2d 219 (2016).
‘‘True threats encompass those statements [through
which] the speaker means to communicate a serious
expression of an intent to commit an act of unlawful
violence to a particular individual or group of individu-
als. . . . The speaker need not actually intend to carry
out the threat. Rather, a prohibition on true threats
protect[s] individuals from the fear of violence and from
the disruption that fear engenders, in addition to pro-
tecting people from the possibility that the threatened
violence will occur. . . . In the context of a threat of
physical violence, [w]hether a particular statement may
properly be considered to be a [true] threat is governed
by an objective standard—whether a reasonable person
would foresee that the statement would be interpreted
by those to whom the maker communicates the state-
ment as a serious expression of intent to harm or
assault. . . . [A]lleged threats should be considered in
light of their entire factual context, including the sur-
rounding events and reaction of the listeners. . . .
Prosecution under a statute prohibiting threatening
statements is constitutionally permissible [as] long as
the threat on its face and in the circumstances in which
it is made is so unequivocal, unconditional, immediate
and specific as to the person threatened, as to convey
a gravity of purpose and imminent prospect of execu-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Krijger, supra, 313 Conn. 449–50.
The defendant’s claim turns on two cases of the
United States Supreme Court, Virginia v. Black, supra,
538 U.S. 343, and Elonis v. United States, supra, 135 S.
Ct. 2001. Because the defendant argues that our
Supreme Court has not had the opportunity to recon-
sider our jurisprudence in light of the United States
Supreme Court’s decision in Elonis, we first address
his claim based on that case.9 The defendant asks us
to read Elonis as establishing a subjective intent ele-
ment for true threats under the first amendment to the
United States constitution. He acknowledges, however,
that in Elonis, the United States Supreme Court con-
strued 18 U.S.C. § 875 (c) (2012), a federal criminal
statute that penalized threats made in interstate com-
merce. The defendant argues, nevertheless, that the
United States Supreme Court, by reading a subjective
intent element into that statute, signaled an approval
of that element as essential to establish liability under
the true threats doctrine of the first amendment.
As a conceptual matter, we cannot agree with this
argument. To be constitutionally valid, a statute must
provide at least as much protection as the federal consti-
tution. It follows, therefore, that a statute can provide
greater, but not less, protection than the constitution.
Concluding that 18 U.S.C. § 875 (c) requires subjective
intent, the United States Supreme Court held that the
statute required a higher mens rea. Elonis v. United
States, supra, 135 S. Ct. 2010 (‘‘[w]hen interpreting fed-
eral criminal statutes that are silent on the required
mental state, we read into the statute only that mens
rea which is necessary to separate wrongful conduct
from otherwise innocent conduct’’ [internal quotation
marks omitted]); see also United States v. White, 810
F.3d 212, 220 (4th Cir. 2016) (‘‘Elonis abrogates our
prior holding that liability under [18 U.S.C.] § 875 (c)
can turn solely on how a recipient would interpret a
statement, without regard to whether the speaker
intended it as a threat. . . . . But Elonis does not affect
our constitutional rule that a ‘true threat’ is one that a
reasonable recipient familiar with the context would
interpret as a serious expression of an intent to do
harm.’’ [citation omitted]), cert. denied, U.S. ,
136 S. Ct. 1833, 194 L. Ed. 2d 837 (2016). By contrast,
the court expressly declined to address any first amend-
ment issues; see Elonis v. United States, supra, 135 S.
Ct. 2013; thereby leaving the elements of the true threats
doctrine undisturbed. We, therefore, cannot join the
defendant’s assumption that the United States Supreme
Court abandoned the existing standard for the true
threats doctrine sub silentio. See Shalala v. Illinois
Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.
Ct. 1084, 146 L. Ed. 2d 1 (2000) (United States Supreme
Court ‘‘does not normally overturn, or so dramatically
limit, earlier authority sub silentio’’). Accordingly, we
conclude that Elonis has no bearing on whether the
defendant must possess a subjective intent for purposes
of the true threats doctrine. Whether Black affected the
true threats doctrine, however, is a different question
and one which was not addressed by our Supreme Court
in Krijger, but which the defendant now invites us
to consider.
In Virginia v. Black, supra, 538 U.S. 343, the United
States Supreme Court considered whether a Virginia
statute that criminalized cross burning violated the first
amendment. The statute made it unlawful for ‘‘any per-
son or persons, with the intent of intimidating any per-
son or group of persons, to burn, or cause to be burned,
a cross on the property of another, a highway or other
public place.’’ (Internal quotation marks omitted.) Id.,
348. It provided further that ‘‘[a]ny such burning of
a cross shall be prima facie evidence of an intent to
intimidate a person or group of persons.’’ (Internal quo-
tation marks omitted.) Id. It was this latter part of the
statute that a plurality of the court struck down as
unconstitutional. Id., 367. In reaching this conclusion,
the court first recited the principle, now well estab-
lished in this state, that ‘‘ ‘[t]rue threats’ encompass
those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group
of individuals.’’ Id., 359. The court went on to add,
however, that ‘‘[i]ntimidation in the constitutionally
proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group
of persons with the intent of placing the victim in fear
of bodily harm or death.’’ Id., 360. It is this language
that the defendant regards as marking a shift from the
usual objective standard to a subjective intent require-
ment for true threats. We are not persuaded.
The language on which the defendant relies is found
in part III of Black, which upheld the constitutionality
of the intent requirement in the Virginia statute. See
id., 363 (‘‘[a] ban on cross burning carried out with the
intent to intimidate is fully consistent with our holding
in R.A.V. [v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120
L. Ed. 2d 305 (1992)] and is proscribable under the
First Amendment’’). Although this holding declares the
constitutionality of the intent requirement for the Vir-
ginia statute, it says nothing about the traditional objec-
tive standard for true threats. See, e.g., Elonis v. U.S.,
supra, 135 S. Ct. 2016 (Alito, J., concurring) (arguing
that objective standard should be applied post-Black).
In other words, the constitutional necessity of a subjec-
tive intent was never at issue in part III of Black. Conse-
quently, we decline to read it that way.
In part IV of Black, a plurality of four justices went
further and found the prima facie provision of the Vir-
ginia statute to be unconstitutional on its face. In reach-
ing that conclusion, the plurality noted that ‘‘[t]he act
of burning a cross may mean that a person is engaging
in constitutionally proscribable intimidation. But that
same act may mean only that the person is engaged in
core political speech. The prima facie evidence provi-
sion in this statute blurs the line between these two
meanings of a burning cross . . . [and] makes no effort
to distinguish among these different types of cross burn-
ings.’’ Virginia v. Black, supra, 538 U.S. 365–66. What-
ever reservations we might have about the court’s
reasoning, the court’s ratiocination falls far short of
bringing the traditional objective standard into ques-
tion. In fact, it may even be read as suggesting that
the prima facie provision lacked objectivity because it
lacked any standard at all. See United States v. Jeffries,
692 F.3d 473, 480 (6th Cir. 2012), overruled on other
grounds by Elonis v. United States, supra, 135 S. Ct.
2001. Consequently, we decline to read Black as mark-
ing the sea change to the true threats doctrine that
the defendant proposes.10 Thus the objective standard,
which has been the traditional standard in this state
for the true threats doctrine, remains valid. Accordingly,
§ 53a-62 (a) (3) is constitutionally sound.11 Because the
defendant’s sole challenge to his conviction under
§ 53a-62 (a) (3) was constitutional, our treatment of his
claim ends here.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Number 16-67 of the 2016 Public Acts (P.A. 16-67) amended subsection
(a) of § 53a-62 by redesignating the existing subdivisions (2) and (3) as
subdivision (2) (A) and (B) without modifying the language of that provision.
We refer to the 2015 revision of § 53a-62 (a) (3) because that is the statute
under which the defendant was charged and convicted.
2
In accordance with our policy of protecting the privacy interest of the
victim of a criminal violation of a protective order, we decline to identify
the victim or others through whom the victim’s identity may be ascertained.
3
During deliberations, the jury submitted a note to the trial court asking
who Tracey Morton was, whereupon the court responded that there was
no evidence in the record from which that question could be answered.
4
In his appellate brief, the defendant cites to article first, § 9, of the
Connecticut constitution, but makes no claim that the double jeopardy
protection under our constitution exceeds that provided by the federal
constitution. As our appellate courts repeatedly have observed, ‘‘the absence
of an explicit constitutional double jeopardy provision [in our state constitu-
tion] strongly suggests that the incorporated common-law double jeopardy
protection mirrors, rather than exceeds, the federal constitutional protec-
tion.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Bur-
nell, 290 Conn. 634, 652–53, 966 A.2d 168 (2009). Because the defendant
does not claim otherwise, and has not briefed such a claim, we review his
double jeopardy claim only under the federal constitution. See State v.
Baker, 168 Conn. App. 19, 21 n.5, 145 A.3d 955, cert. denied, 323 Conn. 932,
150 A.3d 232 (2016).
5
Under the well established principles of Golding, as revised in In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can prevail
on a claim of constitutional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation
exists and deprived the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail. State v. Golding,
supra, 213 Conn. 239–40. ‘‘The first two [prongs of Golding] involve a determi-
nation of whether the claim is reviewable; the second two . . . involve a
determination of whether the defendant may prevail.’’ (Internal quotation
marks omitted.) In re Yasiel R., supra, 779 n.6.
6
At oral argument before this court, the defendant’s counsel cited to our
Supreme Court’s decision in State v. Bernacki, 307 Conn. 1, 52 A.3d 605
(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013),
for the proposition that it prohibits an inspection of how a protective order
was violated for purposes of double jeopardy. To the extent the court’s
decision in Bernacki can be read that way, it pertains to the application of
the same elements analysis from the United States Supreme Court case of
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Because the same elements analysis is not at issue in this case, and neither
the defendant nor the state claims that it is, Bernacki does not preclude us
from examining the terms of the standing criminal protective order.
7
We are also unpersuaded by the defendant’s argument that the use of
the word ‘‘involves’’ in § 53a-223a (c) signifies the legislature’s intent to
make the offense punishable only once. A plain reading of the statute reveals
no such intent and, given the unambiguous language of the statute, we will
not look for further intent of the legislature not expressed within the statute
itself. See Cornelius v. Arnold, 168 Conn. App. 703, 717, 147 A.3d 729 (2016),
cert. denied, 324 Conn. 908, 152 A.3d 1245 (2017).
8
By contrast, Larsen appears to be the only published Connecticut case
to cite to the dictionary definition that the defendant in this case invokes
as a constitutional requirement.
9
Contrary to the defendant’s assertions, our Supreme Court had the oppor-
tunity to examine these issues post-Elonis in State v. Pelella, 327 Conn. 1,
170 A.3d 647 (2017). After the current case was argued before this court,
our Supreme Court decided State v. Taupier, 330 Conn. 149, A.3d
(2018), which held that General Statutes § 53a-61aa (a) (3) is not unconstitu-
tional under the free speech provisions of the federal and state constitutions
because the specific intent to terrorize the victim was not an element of
the crime.
Taupier was a case in which all threats directed against the victim were
not directly addressed to the victim, but instead, were made to third parties.
However, in the case before us, there was direct evidence before the jury
from the victim’s testimony that the defendant told her that he would kill
her. The defendant’s conviction was therefore not dependent on other evi-
dence of the defendant’s threats against the victim that were voiced to a
third-party social worker. We therefore decline the defendant’s appellate
counsel’s postargument suggestion made under Practice Book § 67-10 to
review the court’s jury charge for plain error, in light of Taupier. Plain error
review is a rule of reversibility, which we conclude is inappropriate.
10
In reaching this conclusion we align with a majority of federal appellate
courts that has declined to read Black as altering the traditional objective
standard. See United States v. Castillo, 564 Fed. Appx. 500, 504 (11th Cir.),
cert. denied, U.S. , 135 S. Ct. 438, 190 L. Ed. 2d 333 (2014); United
States v. Clemens, 738 F.3d 1, 12 (1st Cir. 2013); United States v. Elonis,
730 F.3d 321, 332 (3d Cir. 2013), rev’d on other grounds, U.S. , 135
S. Ct. 2001 (2015); United States v. Nicklas, 713 F.3d 435, 440 (8th Cir. 2013);
United States v. Jeffries, supra, 692 F.3d 479–81; United States v. White,
670 F.3d 498, 508 (4th Cir. 2012).
11
We note additionally that the appellate courts in this state have had the
opportunity to consider these questions and to revise our jurisprudence in
light of Black. See, e.g., State v. Pelella, supra, 327 Conn. 1; State v. Krijger,
supra, 313 Conn. 434; State v. Tarasiuk, 125 Conn. App. 544, 8 A.3d 550
(2010). Specifically, in Krijger, although our Supreme Court declined to
address the question the defendant raises in this claim, it went on to apply
the traditional objective standard. See State v. Krijger, supra, 460. Given
the recent and frequent application of the objective standard for true threats
by our Supreme Court, this court is not free to depart from it. State v. Inglis,
151 Conn. App. 283, 293 n.13, 94 A.3d 1204, cert. denied, 314 Conn. 920, 100
A.3d 851 (2014), cert. denied, U.S. , 135 S. Ct. 1559, 191 L. Ed. 2d
647 (2015).