State v. Mansfield ( 2020 )

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STATE OF CONNECTICUT v. BRIAN MANSFIELD
(AC 41587)
Alvord, Cradle and Sullivan, Js.
Syllabus
Convicted, after a jury trial, of the crimes of breach of the peace in the
second degree and assault of public safety personnel, the defendant
appealed to this court. On election day on November 8, 2016, the defen-
dant went to the polling place located at the Bethel Town Hall where
he proceeded to remove papers from a dry erase board and throw them
on the ground and erase information written on the board. He entered
the part of the town hall where voting was taking place and was given
a ballot, which he then refused to return. Volunteers asked a police
officer, P, who was providing security, for assistance. The defendant,
who continued to refuse to return the ballot, then placed the ballot in
his pants and dared P to retrieve the ballot from his pants. At this
point, the volunteers allowed the defendant to keep the ballot and the
defendant exited the area, knocking over a basket of stickers as he did
so. He then took several boxes of cookies from Girl Scouts who were
selling cookies outside the voting location and, when told by P to return
the boxes, threw them aggressively onto the table. P then began to
escort the defendant out of the town hall and, as they were walking,
the defendant spit on a picture hanging on the wall. The next day, two
police officers, B and C, went to the defendant’s home to serve a sum-
mons for breach of the peace in violation of the applicable statute (§ 53a-
181 (a) (1)), based on the defendant’s conduct the day before. C handed
the summons to the defendant and asked that he sign it. The defendant
crumpled the summons, threw it on the ground, and then spat in C’s
face, at which point the defendant was arrested and charged with assault
of public safety personnel. Held:
1. The defendant’s challenges to his conviction of breach of the peace in
violation of § 53a-181 (a) (1) were unavailing:
a. The evidence was sufficient to support the defendant’s conviction of
breach of the peace in the second degree, as the jury reasonably could
have concluded that the cumulative force of the evidence established
that the defendant’s conduct on November 8, 2016, was physically tumul-
tuous and contained the requisite level of physicality.
b. This court found unavailing the defendant’s claim that § 53a-181 (a)
(1) was unconstitutionally vague as applied to him, as a reasonable
person would anticipate that § 53a-181 (a) (1) would apply to the defen-
dant’s conduct on November 8, 2016.
c. The defendant could not prevail on his unpreserved claim that the
trial court improperly instructed the jury regarding the definition of
‘‘tumultuous behavior’’ in § 53a-181 (a) (1), as the defendant implicitly
waived his claim of instructional error; defense counsel had an opportu-
nity to review the jury charge language, acquiesced in the use of the
instructional language at issue, and stated that he had no objection to
the removal of the language now challenged by the defendant.
d. The defendant could not prevail on his claim that the trial court
committed plain error in its instructions to the jury, which was based
on his assertion that the court’s decision to remove certain language
from the conduct element of § 53-181 (a) (1) may have led the jury to
convict him for bad manners, rather than for conduct that portended
imminent physical violence, as the court clearly instructed the jury that
the defendant’s conduct must be more than mere bad manners.
2. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of assault of public safety personnel
because the state failed to prove that C was acting in the performance of
his official duties; C was on duty and wearing his uniform on November
9, 2016, and, on the basis of that fact, the jury reasonably could have
concluded that his decision to accompany B to the home of the defendant
and to issue the summons was made in his official capacity as a police
officer and, therefore, C was acting within the scope of his employment.
5. The defendant could not prevail on his unpreserved claim that the trial
court failed to adequately instruct the jury regarding the law governing
police discretion to issue and serve a summons on an individual who
has not been arrested: the defendant implicitly waived his claim that
the court’s instructions were improper, as defense counsel had an oppor-
tunity to review the jury instructions and did not object to them, he
agreed that the instructions given were sufficient and, after the jury
sent a note requesting clarification, he agreed with the court’s decision
not to further charge the jury on that issue, the court having concluded
that the issue was one that the jurors had to deliberate on and reach
themselves; moreover, the defendant could not prevail on his claim that
the court committed plain error in declining to answer the jury’s note
requesting clarification as to when an officer’s duties end, as there was
no reasonable possibility that the jury would have concluded that C
was not performing his lawful duty and acquitted the defendant because
whether a police officer has lawful authority to conduct an arrest or
serve a summons was irrelevant to the question of whether C was acting
in the performance of his official duties.
Argued October 6—officially released December 22, 2020
Procedural History
Substitute informations charging the defendant, in
the first case, with one count of the crime of breach
of the peace in the second degree and two counts of
the crime of littering, and, in the second case, with the
crime of assault of public safety personnel, brought to
the Superior Court in the judicial district of Danbury,
geographical area number three, where the court,
Russo, J., granted the state’s motion for joinder; there-
after, the charges of breach of the peace in the second
degree and assault of public safety personnel were tried
to the jury before Russo, J.; verdicts of guilty; subse-
quently, the charges of littering were tried to the court;
judgment of not guilty; thereafter, the court rendered
judgments of guilty in accordance with the verdicts,
from which the defendant appealed to this court.
Affirmed.
Timothy H. Everett, assigned counsel, with whom,
on the brief, were Alexis C. Coudert and Jeremy A.
Weyman, certified legal interns, for the appellant
(defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky,
state’s attorney, and Warren Murray, former supervi-
sory assistant state’s attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant, Brian Mansfield,
appeals from the judgments of conviction, rendered
after a jury trial, of the crimes of breach of the peace
in the second degree in violation of General Statutes
§ 53a-181 (a) (1) and assault of public safety personnel
in violation of General Statutes § 53a-167c (a) (5). On
appeal, with regard to his conviction of breach of the
peace, the defendant ‘‘challenges the sufficiency of the
state’s evidence to prove the theory of liability for which
he was prosecuted: that he . . . engaged in tumultuous
behavior’’; (emphasis omitted); claims that ‘‘[t]he prose-
cution’s theory of criminal liability rendered § 53a-181
(a) (1) unconstitutionally vague as applied,’’ and that the
trial court’s instruction on the definition of ‘‘tumultuous
behavior’’ misled the jury. With regard to his conviction
of assault of public safety personnel, the defendant
claims that ‘‘[t]he state offered insufficient evidence to
prove that [the] [o]fficer . . . was acting lawfully in
the performance of his official duties,’’ and that ‘‘[t]he
trial court did not respond adequately to the jury’s
request . . . to be instructed on the law governing
police discretion to issue and serve a summons [on] an
individual who has not been arrested first.’’ We affirm
the judgments of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
defendant’s appeal. On the evening of November 8,
2016—election day—Officer Leonard Penna of the New-
town Police Department was working a private duty
job providing security at the Bethel Town Hall (town
hall) from 6 to 10 p.m. While Officer Penna was working,
the defendant entered the town hall and approached a
dry erase board in the lobby. The defendant removed
several documents from the board and threw them on
the ground, and erased the information that had been
written on the board. The defendant then entered the
gymnasium inside of the town hall where voting was
taking place, and the volunteers working the polling
place gave the defendant a ballot. The volunteers
requested that the defendant return the ballot, and he
refused. The volunteers then called to Officer Penna for
assistance. After Officer Penna entered the gymnasium,
the defendant continued to refuse to return the ballot
and put the ballot in his pants. Officer Penna requested
that the defendant return the ballot to the volunteers,
and the defendant responded: ‘‘I bet you would like to
go retrieve that out of my pants.’’ After the defendant
made this remark, the volunteers allowed him to keep
the ballot. As the defendant exited the gymnasium, he
knocked over a basket of ‘‘I Voted Today’’ stickers.
Outside of the gymnasium, a group of Girl Scouts
had set up a table where they were selling cookies.
After exiting the gymnasium, the defendant took several
boxes of cookies from the Girl Scouts and placed them
inside of the bag that he was carrying. One of the girls
began to yell at the defendant, and Officer Penna exited
the gymnasium to respond to the commotion. Officer
Penna told the defendant to return the boxes of cookies
that he had taken, and the defendant responded by
throwing the boxes onto the table in an aggressive man-
ner. Officer Penna then began to escort the defendant
to the exit of the town hall, and, as they walked down
the hallway, the defendant spat on a picture hanging
on the wall. Officer Penna then contacted the Bethel
Police Department (department). Officers Jason Broad
and Courtney Whaley of the department responded to
Officer Penna’s call. Officer Whaley arrived first, and
she spoke with the defendant and attempted to calm
him down. Officer Broad arrived shortly after Officer
Whaley, and he assisted Officer Penna in helping the
defendant get into his vehicle while Officer Whaley
spoke with Lisa Berg, the Bethel Town Clerk. The defen-
dant left the town hall in his vehicle, and he was not
issued a summons that night.
The following day, November 9, 2016, Officer Broad
was directed to complete a summons and issue it to
the defendant at his home. The summons was for breach
of the peace, based on the defendant’s conduct the prior
night. Officer Broad was not on duty on November 9,
2016, but he was directed to complete and issue the
summons because he was the investigating officer.
Because Officer Broad was off duty, he was not in
uniform. For this reason, Sergeant James Christos of
the department, who was on duty and in uniform,
decided that he should accompany Officer Broad to the
home of the defendant and issue the summons himself.
Upon arrival at the defendant’s home, Officer Broad
and Sergeant Christos knocked on the door, and the
defendant answered. Sergeant Christos handed the
defendant a copy of the summons and requested that
he sign it. The defendant crumpled the copy of the
summons, threw it on the ground, and then spat in
Sergeant Christos’ face. The defendant attempted to
close the door on them, but Officer Broad and Sergeant
Christos stopped him and took him into custody. The
defendant subsequently was charged with assault of a
public safety officer.
Following a jury trial, the defendant was convicted
of breach of the peace in the second degree, based on
his conduct on the night of November 8, 2016, and
assault of public safety personnel, based on his conduct
on November 9, 2016. It is from these judgments of
conviction that the defendant appeals. Additional facts
and procedural history will be set forth as necessary.
I
The defendant challenges his conviction of breach
of the peace in the second degree on the following
grounds: the state failed to produce sufficient evidence
to prove the theory of liability under which the defen-
dant was prosecuted, the state’s theory of criminal lia-
bility rendered the breach of the peace in the second
degree statute unconstitutionally vague as it was
applied, and the trial court misled the jury by providing
an inappropriate instruction with regard to the defini-
tion of ‘‘tumultuous behavior.’’ We address each claim
in turn.
A
First, we address the defendant’s claim that the state
failed to produce sufficient evidence to prove the theory
of liability under which he was prosecuted. Specifically,
the defendant claims that ‘‘[t]he meaning of the term
‘tumultuous’ is dependent on the terms that surround
it1 . . . [and that] the state chose not to include any
of those terms in the information, offered no evidence of
physicality or imminent violence to satisfy the conduct
element of the . . . statute, and did not request that
the trial court instruct the jury that it had to find an
element of physicality in order to convict.’’ (Footnote
added.) The defendant further claims that the state’s
‘‘global argument’’—that the defendant is guilty ‘‘based
on [his] ‘collective behavior’ ’’ on the night of November
8, 2016—inappropriately frames the requirements of
§ 53a-181 (a) (1). We disagree.
We begin by setting forth the applicable standard
of review. ‘‘In reviewing the question of whether the
evidence was sufficient to sustain the 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 jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . 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.
Allen, 289 Conn. 550, 555–56, 958 A.2d 1214 (2008).
Review of a claim of insufficient evidence ‘‘must neces-
sarily begin with the elements that the charged statute
requires to be proved. Such a review involves statutory
construction, which is a question of law. Our review,
therefore, is plenary.’’ State v. Carolina, 143 Conn. App.
438, 443, 69 A.3d 341, cert. denied, 310 Conn. 904, 75
A.3d 31 (2013).
The statute at issue is § 53a-181 (a) (1), and the defen-
dant claims that the state failed to produce evidence
sufficient to satisfy that statute’s conduct element,
which requires that the person engage ‘‘in fighting or in
violent, tumultuous or threatening behavior in a public
place . . . .’’ In interpreting this requirement, our
Supreme Court has noted that this court has held that
violent, tumultuous or threatening behavior means
‘‘conduct which actually involves physical violence or
portends imminent physical violence’’; (internal quota-
tion marks omitted) State v. Indrisano, 228 Conn. 795,
811, 640 A.2d 986 (1994), citing State v. Lo Sacco, 12
Conn. App. 481, 491, 531 A.2d 184, cert. denied, 205
Conn. 814, 533 A.2d 568 (1987); and our Supreme Court
has held that ‘‘the terms ‘fighting’ and ‘violent’ lend
an aspect of physicality to the more nebulous terms
‘tumultuous’ and ‘threatening.’ Thus . . . subdivision
(1) of § 53a-182 (a) prohibits physical fighting, and
physically violent, threatening or tumultuous behav-
ior.’’ (Emphasis in original.) State v. Szymkiewicz, 237
Conn. 613, 619, 678 A.2d 473 (1996).2
The defendant’s argument—that the state failed to
satisfy the conduct element of the breach of the peace
statute and that the state’s ‘‘global argument’’ inappro-
priately framed the requirements of § 53a-181 (a) (1)—
is unavailing. Although the defendant is correct in stat-
ing that a conviction of breach of the peace in the
second degree requires conduct with an element of
physicality, we disagree with his claim that the evidence
relative to his conduct on the night of November 8,
2016 ‘‘is insufficient to sustain the jury’s verdict.’’ To
the contrary, there is ample evidence in the record from
which the jury reasonably could have concluded that
the defendant’s conduct on the night in question con-
tained the requisite level of physicality to constitute a
breach of the peace. On election night, the defendant
entered a polling place, wherein he removed and threw
documents, and erased information from a white board;
refused to return a ballot; put the ballot in his pants
and told the police officer that he ‘‘bet [the officer]
would like to go retrieve that out of [his] pants’’;
knocked over a basket of ‘‘I Voted Today’’ stickers; took
boxes of cookies from Girl Scouts and then aggressively
threw them when instructed to return them; and spat
on a picture hanging on the wall. Any one of these
isolated incidents may not be enough to satisfy the
requirements of the statute, but a conviction need not
be based on only one isolated act. See State v. Szymkie-
wicz, supra, 237 Conn. 623. Because the cumulative
force of the evidence leads to the conclusion that the
defendant’s conduct on the night of November 8, 2016
was physically tumultuous, we reject the defendant’s
claim that the state failed to produce sufficient evidence
from which the jury reasonably could have concluded
that the defendant was guilty of breach of the peace in
the second degree.
B
We next address the defendant’s claim that the state’s
theory of criminal liability rendered § 53a-181 (a) (1)
unconstitutionally vague as it was applied to him. Spe-
cifically, the defendant claims that his conviction of
breach of the peace in the second degree should be
overturned because ‘‘[t]he state chose to prosecute the
defendant on a theory of breach of [the] peace . . .
fashioned by redacting from the . . . statute language
that is needed in order to avoid constitutional infirmity.’’
In response, the state argues that the defendant’s claim
must fail because ‘‘at the time of the offense, he reason-
ably understood that his behavior was prohibited by
§ 53a-181 (a) (1), and . . . [because] the evidence suffi-
ciently established that [the defendant’s] behavior
amounted to breach of [the] peace under the statute.’’
We agree with the state.
The long form information charging the defendant
with breach of the peace in the second degree employed
the following language: ‘‘[T]he state . . . accuses [the
defendant] of breach of peace and charges that in the
town of Bethel on or about November 8, 2016, [the
defendant], with the intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk
thereof, engaged in tumultuous behavior in a public
place . . . in violation of [§ 53a-181 (a) (1)].’’ At trial,
the court’s charge to the jury as to the conduct element
of § 53a-181 (a) (1), which reflected the language
employed in the information, provided: ‘‘Element two,
conduct. The second element is the defendant engaged
in tumultuous behavior. The defendant’s conduct must
be more than a display of mere bad manners. It must
cause or create a risk of causing inconvenience, annoy-
ance or alarm among members of the public.’’ Accord-
ingly, both the state and the court removed language
from § 53a-181 (a) (1), shortening the phrase ‘‘engages
in fighting, or in violent, tumultuous or threatening
behavior,’’ to ‘‘engages in tumultuous behavior.’’
Before addressing the defendant’s claim in full, we
first set forth the applicable standard of review. ‘‘The
determination of whether a statutory provision is
unconstitutionally vague is a question of law over which
we exercise de novo review. . . . In undertaking such
review, we are mindful that [a] statute is not void for
vagueness unless it clearly and unequivocally is uncon-
stitutional, making every presumption in favor of its
validity. . . . To demonstrate that [a statute] is uncon-
stitutionally vague as applied to him, the [defendant]
therefore must . . . demonstrate beyond a reasonable
doubt that [he] had inadequate notice of what was pro-
hibited or that [he was] the victim of arbitrary and
discriminatory enforcement.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Winot, 294 Conn.
753, 758–59, 988 A.2d 188 (2010). ‘‘The proper test for
determining [whether] a statute is vague as applied is
whether a reasonable person would have anticipated
that the statute would apply to his or her particular
conduct. . . . The test is objectively applied to the
actor’s conduct and judged by a reasonable person’s
reading of the statute. . . . If the language of a statute
fails to provide definite notice of prohibited conduct,
fair warning can be provided by prior judicial opinions
involving the statute . . . or by an examination of
whether a person of ordinary intelligence would reason-
ably know what acts are permitted or prohibited by the
use of his common sense and ordinary understanding.’’
(Internal quotation marks omitted.) State v. Lavigne,
121 Conn. App. 190, 205–206, 995 A.2d 94 (2010), aff’d,
307 Conn. 592, 57 A.3d 332 (2012).
The defendant’s claim is one of arbitrary and discrimi-
natory enforcement, as he argues that ‘‘by redacting
language from the . . . statute . . . the [state] . . .
rendered § 53a-181 (a) (1) unconstitutionally vague as
applied.’’ This claim fails because the statute, as applied
to the defendant, is not unconstitutionally vague. The
proper test for claims of this nature was articulated
previously as ‘‘whether a reasonable person would have
anticipated that the statute would apply to his or her
particular conduct.’’ (Internal quotation marks omit-
ted.) State v. Lavigne, supra, 121 Conn. App. 205. In
the present case, there is no question that a reasonable
person would anticipate that § 53a-181 (a) (1) would
apply to the conduct of the defendant on the night of
November 8, 2016, as described in part I A of this opin-
ion. Accordingly, we reject the defendant’s claim that
§ 53a-181 (a) (1) is unconstitutionally vague as it was
applied to him.
C
We now turn to the defendant’s claim that the trial
court misled the jury by providing an inappropriate
instruction with regard to the definition of ‘‘tumultuous
behavior.’’ Specifically, the defendant claims that ‘‘[b]y
telling the jury that the conduct element [of breach of
the peace in the second degree] required only that the
jury find that the defendant engaged in ‘tumultuous’
behavior, the trial court did not provide the jury with
a viable theory of liability under which the jury could
properly convict the defendant.’’ In response, the state
argues that the defendant’s claim in this regard is not
reviewable because he ‘‘induced the alleged error or
implicitly waived his unpreserved instructional error
claim.’’ In the alternative, the state claims that ‘‘the trial
court’s instruction was correct in law and sufficiently
guided the jury [in deciding] whether the defendant
committed breach of [the] peace under § 53a-181 (a)
(1).’’ We conclude that the defendant implicitly waived
his claim of instructional error.
At trial, the following exchange took place during
the charging conference:
‘‘The Court: [W]e begin with the charges, the amended
information . . . breach of the peace in the second
degree?
‘‘[The Prosecutor]: There is something that the state
has here, Your Honor. . . . In the charging document,
the state’s only making the claim that the defendant
engaged in tumultuous behavior in a public place. . . .
‘‘The Court: So, you’re suggesting to excise ‘fighting
or in violent,’ those words?
‘‘[The Prosecutor]: Yes and ‘or threaten[ing] behav-
ior.’ And just leave . . . tumultuous behavior.
‘‘The Court: [Defense counsel], so the proposal would
read: Such person engages in tumultuous behavior in
a public place.
‘‘[Defense Counsel]: Your Honor, I . . . have no
objection to the change. . . .
‘‘The Court: So . . . the state’s position is it should
read: So that such person engages in tumultuous behav-
ior in a public place?
‘‘[The Prosecutor]: Correct.
‘‘The Court: [Defense counsel].
‘‘[Defense Counsel]: I have no objection to the
change, Your Honor.’’
The following colloquy later took place regarding
the specific language that the court would use when
instructing the jury as to the conduct element of § 53a-
181 (a) (1):
‘‘[The Prosecutor]: [I]n the breach of peace statute
. . . [the] element on conduct . . . says . . . that the
defendant engaged in fighting, violent or tumultuous,
threatening behavior. We had earlier . . . requested
that the court take out all that language except for
the tumultuous behavior language. Now, I find myself
wondering if the tumultuous behavior has to be tumultu-
ous behavior that actually involved physical violence
or [portended] imminent physical violence . . . [s]o
I’m not [going to] ask that that be removed. It creates
a higher burden for the state . . . [but] I’m . . . wor-
ried about being reversed for charging inappropriately.
. . . Does the court understand what I’m saying?
‘‘The Court: I understand exactly what you’re saying,
and . . . if I remember right, we went over this and
agreed that ‘tumultuous’ . . . would remain and every-
thing else would come out.
‘‘[Defense Counsel]: That’s my recollection, Your
Honor. . . .
‘‘[The Prosecutor]: I just ask the court and [defense
counsel] if either of you think that the tumultuous
behavior also has to be tumultuous behavior that actu-
ally involved physical violence or [portended] imminent
physical violence. . . . I don’t want to excise some-
thing out of the charge that makes the charge bad. . . .
‘‘The Court: Well, I think the actually involved physi-
cal violence or [portended] imminent physical violence,
there’s really nothing in the record that would suggest
[the defendant] . . . [was] involved in any physical
violence.
‘‘[Defense Counsel]: I would agree with the court,
Your Honor. . . . [M]y recollection . . . was that [the
prosecutor] had asked for that extra language to be
removed . . . and I had no objection to it being
removed.’’
The court, Russo, J., then instructed the jury as fol-
lows: ‘‘Element one, intent. The first element is the
defendant acted with the intent to cause inconvenience,
annoyance or alarm. The predominant intent must be
to cause what a reasonable person operating under
contemporary community standards would consider a
disturbance to or impediment of a lawful activity, a
deep feeling, a vexation or provocation, or a feeling
of anxiety prompted by threatened danger or harm. A
person can also be found guilty of breach of peace if
he recklessly creates a risk of causing inconvenience,
annoyance or alarm so that such person engages in
tumultuous behavior in a public place. A person acts
recklessly with respect to a result or circumstances
when he is aware of and consciously disregards a sub-
stantial and unjustifiable risk that such result will occur
or that such circumstances exist. Element two, conduct.
The second element is the defendant engaged in tumul-
tuous behavior. The defendant’s conduct must be more
than a display of mere bad manners. It must cause or
create a risk of causing inconvenience, annoyance or
alarm among members of the public. Element three,
public place. The third element is that the conduct took
place in a public place. ‘Public place’ means any area
that is used or held out for use by the public whether
owned or operated by public or private interest. Conclu-
sion. In summary, the state must prove beyond a reason-
able doubt that the defendant, one, intended to cause
or recklessly created a risk of causing inconvenience,
annoyance or alarm; two, the defendant engaged in
tumultuous behavior; and three, it was in a public
place.’’
We first address the state’s argument that the defen-
dant’s instructional error claim is not reviewable on
appeal. Although the state claims that the defendant
‘‘induced the alleged error or implicitly waived his
unpreserved instructional error claim,’’ it primarily
makes an argument of implicit waiver. Specifically, the
state argues that the defendant implicitly waived his
instructional error claim because ‘‘[he] played an active
role along with the state in limiting the breach of peace
instruction to ‘tumultuous behavior’ and acquiesced to
the trial court’s finding that there was no evidence of
‘physical violence.’ ’’ The state also argues that the
defendant ‘‘not only failed to object to the court’s
instruction as given, despite notice of the charge and
the multiple discussions about it on the record, but also
voiced his agreement with both the instruction as given
and the trial court’s finding that the evidence did not
warrant instruction on the remaining statutory lan-
guage.’’ (Emphasis omitted.) We agree with the state
that the defendant implicitly waived his claim of instruc-
tional error.
‘‘It is well established . . . that unpreserved claims
of improper jury instructions are reviewable under
[State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015)] unless they have been
induced or implicitly waived. . . . [W]aiver is an inten-
tional relinquishment or abandonment of a known right
or privilege. . . . It involves the idea of assent, and
assent is an act of understanding. . . . The rule is appli-
cable that no one shall be permitted to deny that he
intended the natural consequences of his acts and con-
duct. . . . In order to waive a claim of law it is not
necessary . . . that a party be certain of the correct-
ness of the claim and its legal efficacy. It is enough
if he knows of the existence of the claim and of its
reasonably possible efficacy. . . . Connecticut courts
have consistently held that when a party fails to raise
in the trial court the constitutional claim presented on
appeal and affirmatively acquiesces to the trial court’s
order, that party waives any such claim [under Golding].
. . . Both [our Supreme Court] and [this court] have
found implied waiver on grounds broader than those
required for a finding of induced error. These include
counsel’s failure to take exception or object to the
instructions together with (1) acquiescence in, or
expressed satisfaction with, the instructions following
an opportunity to review them, or (2) references at trial
to the underlying issue consistent with acceptance of
the instructions ultimately given. . . . The rationale for
declining to review jury instruction claims when the
instructional error was induced or the claim was implic-
itly waived is precisely the same: [T]o allow [a] defen-
dant to seek reversal [after] . . . his trial strategy has
failed would amount to allowing him to . . . ambush
the state [and the trial court] with that claim on appeal.’’
(Citations omitted; internal quotation marks omitted.)
State v. Kitchens, 299 Conn. 447, 468–70, 10 A.3d 942(2011).
We conclude that the defendant has implicitly waived
his instructional error claim. The record indicates that
defense counsel had an opportunity to review the jury
charge language, and that he acquiesced in the use
of the instructional language at issue. In fact, defense
counsel clearly stated that he had no objection to the
removal of the language now challenged by the defen-
dant, and actually expressed agreement with the court’s
use of that limited language over the state’s suggestion,
in a reconsideration of its prior request, that the lan-
guage of the statute be used in its entirety. For these
reasons, reviewing the defendant’s claim of instruc-
tional error on the merits would be in contravention of
the principle of implicit waiver, as it would allow the
defendant to challenge his failed trial strategy on
appeal. See id., 470. Accordingly, we conclude that this
claim has been implicitly waived.
Having reached this conclusion, we now address the
defendant’s claim that ‘‘the trial court’s jury charge
requires reversal as plain error.’’ In support of his claim
of plain error, the defendant asserts that ‘‘[t]here is a
reasonable possibility that the jury convicted [him] for
‘bad manners’ but not conduct that portended imminent
physical violence.’’ Specifically, the defendant claims
that ‘‘[an] error here is plain upon the face of the record
. . . [because] the jury was left to its own understand-
ing of the word ‘tumultuous’ and was deprived of the
judicial interpretations of the conduct element that are
necessary to prevent arbitrary enforcement of the
breach of [the] peace statute.’’ We disagree.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], [our Supreme Court
has] described the two-pronged nature of the plain error
doctrine: [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice. . . . It is axiomatic that, [t]he plain error doc-
trine . . . is not . . . a rule of reviewability. It is a rule
of reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly reserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment . . . for reasons of policy.
. . . Put another way, plain error review is reserved
for only the most egregious errors. When an error of
such a magnitude exists, it necessitates reversal.’’ (Cita-
tions omitted; emphasis in original; footnote omitted;
internal quotation marks omitted.) State v. McClain,
324 Conn. 802, 812–14, 155 A.3d 209 (2017).
We turn to the first prong of the plain error doctrine,
namely, whether the trial court’s decision to remove
language from the conduct element of the breach of
the peace statute in its charge to the jury, is so clear
an error that a failure to reverse the judgment would
result in manifest injustice. See id., 812. The defendant’s
claim in this regard hinges on his assertion that ‘‘[t]here
is a reasonable possibility that the jury convicted [him]
for ‘bad manners’ but not conduct that portended immi-
nent physical violence.’’ Considering the record in its
entirety, we conclude that no such reasonable possibil-
ity exists, and that the trial court’s instruction to the
jury does not constitute a clear error. In charging the
jury as to the conduct element of § 53a-181 (a) (1), the
court specifically defined tumultuous as follows: ‘‘The
defendant’s conduct must be more than a display of
mere bad manners. It must cause or create a risk of
causing inconvenience, annoyance or alarm among
members of the public.’’ (Emphasis added.) This lan-
guage used by the court shows that no clear error exists
with regard to the court’s instructions, as the court
expressly stated that the defendant’s conduct ‘‘must be
more than . . . mere bad manners.’’ Accordingly, we
conclude that the defendant is not entitled to relief
under the doctrine of plain error.
II
The defendant challenges his conviction of assault
of public safety personnel on the following grounds:
the state did not offer sufficient evidence to prove that
Sergeant Christos was acting lawfully in the perfor-
mance of his official duties, and the court failed to
instruct the jury adequately on the law governing police
discretion to issue and serve a summons on an individ-
ual who has not yet been arrested. We address each
claim in turn.
A
We first address the defendant’s claim that the state
did not offer sufficient evidence to prove that Sergeant
Christos was acting lawfully in the performance of his
official duties. Specifically, the defendant claims that
‘‘[i]n the absence of an actual arrest, law enforcement
officers do not have statutory authority to issue a sum-
mons,’’ and that ‘‘the police lacked ‘speedy information’
to arrest the defendant for his . . . past behavior.’’
We disagree.
We begin by setting forth the applicable standard of
review. As noted in part I A of this opinion, a two part
test applies to claims of insufficient evidence. First, we
construe the evidence in the light most favorable to
sustaining the verdict. State v. Allen, supra, 289 Conn.
555–56. Second, we determine whether, based upon the
facts so construed and the inferences reasonably drawn
therefrom, the jury reasonably could have concluded
that the evidence before it established guilt beyond a
reasonable doubt. Id., 556. Because such review
involves statutory construction—a question of law—
our review is plenary. State v. Carolina, supra, 143
Conn. App. 443.
The statute at issue—§ 53a-167c (a) (5)—provides in
relevant part: ‘‘A person is guilty of assault of public
safety . . . personnel . . . when, with intent to pre-
vent a reasonably identifiable peace officer . . . from
performing his or her duties, and while such peace
officer . . . is acting in the performance of his or her
duties . . . such person throws or hurls, or causes to
be thrown or hurled, any bodily fluid including . . .
saliva at such peace officer.’’ Accordingly, the defen-
dant’s claim—that the state did not offer sufficient evi-
dence to prove that Sergeant Christos was acting law-
fully in the performance of his official duties—focuses
solely on the requirement of § 53a-167c (a) (5) that the
officer must be ‘‘acting in the performance of his or
her duties’’ at the time of the assault. The defendant
claims that the state failed to offer sufficient evidence to
prove that, under the circumstances, Sergeant Christos
had statutory authority to issue a summons to the defen-
dant. Specifically, the defendant cites General Statutes
§§ 54-1h3 and 54-1f4 to support the claim that ‘‘[t]he state
failed to prove that [Sergeant Christos] [was] operating
within [his] legal authority when [he] confronted the
defendant at his home and attempted to serve [the]
. . . summons upon him.’’ Accordingly, the defendant’s
claim can be broken down as follows: Sergeant Christos
lacked authority to serve a summons upon the defen-
dant on the morning of November 9, 2016, and therefore
was not ‘‘acting in the performance of his . . . duties,’’
as is required by § 53a-167c (a) (5). We disagree.
The question of ‘‘[w]hether [an officer] is acting in
the performance of his duty within the meaning of . . .
[§ 53a-167c (a)]5 must be determined in the light of that
purpose and duty. If he is acting under a good faith
belief that he is carrying out that duty, and if his actions
are reasonably designed to that end, he is acting in
the performance of his duties. . . . The phrase in the
performance of his official duties means that the police
officer is simply acting within the scope of what [he]
is employed to do. The test is whether the [police offi-
cer] is acting within that compass or is engaging in a
personal frolic of his own. . . . [W]hether the police
officer was acting in the performance of his official
duties or engaging in a personal frolic [are] factual
questions for the jury to determine on the basis of all
the circumstances of the case and under appropriate
instructions from the court.’’ (Citation omitted; footnote
added; internal quotation marks omitted.) State v.
Davis, 261 Conn. 553, 566, 804 A.2d 781 (2002). Accord-
ingly, the question before us is not, as the defendant
suggests, whether Sergeant Christos had the authority
to serve a summons upon the defendant but, rather,
whether Sergeant Christos was ‘‘acting within the scope
of what [he] is employed to do.’’ (Internal quotation
marks omitted.) Id. There is clear evidence in the record
from which the jury reasonably could have concluded
that Sergeant Christos was acting within the scope of
his employment, and was not engaged in a personal
frolic, when he served the summons upon the defen-
dant. Sergeant Christos was on duty and in uniform on
November 9, 2016, and, on the basis of that fact, the
jury reasonably could have concluded that his decision
to accompany Officer Broad to the home of the defen-
dant and to issue the summons himself was made in
his official capacity as a police officer and as Officer
Broad’s supervisor, as Officer Broad was not in uniform,
and Sergeant Christos believed that because he ‘‘would
be readily identifiable as a police officer, there would
be no question as to who was taking the action . . . .’’
For these reasons, we conclude that the state offered
sufficient evidence from which the jury reasonably
could have concluded that Sergeant Christos was acting
within the scope of his employment.
B
We now address the defendant’s final claim—that the
court failed to instruct the jury adequately on the law
governing police discretion to issue and serve a sum-
mons on an individual who has not yet been arrested.
Specifically, the defendant claims that ‘‘[t]he trial
court’s failure to respond adequately to the jury’s . . .
request for clarification . . . deprived the defendant
of his right to a fair trial by jury.’’ According to the
defendant, ‘‘the jury needed to be instructed on the
law governing police discretion to issue and serve a
summons [upon] an individual who has not been
arrested first.’’ In response, the state argues that ‘‘the
defendant implicitly waived this instructional error
claim.’’ In the alternative, the state argues that ‘‘the trial
court properly instructed the jury on the elements of
the assault [of a public safety officer] charge.’’
At trial, the court provided the following instruction
to the jury regarding the charge of assault of a public
safety officer: ‘‘Element one, assault of officer. The first
element is that the person allegedly assaulted was a
reasonably identifiable public safety officer. The stan-
dard is whether a reasonable person under the same
circumstances should have identified the other person
as a public safety officer. In determining this, such facts
as whether the other person wore a uniform, whether
he identified himself or showed his badge or other iden-
tification or the manner in which he acted and con-
ducted himself, are all relevant to your decision of
whether that person was reasonably identifiable as a
public safety officer. It is irrelevant whether the public
safety officer was officially on duty at the time of the
attempted arrest as long as he was identifiable as a
public safety officer. Element two, in the performance
of his duties. The second element is that the conduct
of the defendant occurred while the public safety officer
was acting in the performance of his duties. The phrase
‘in the performance of his official duties,’ means that
the public safety officer was acting within the scope of
what he is employed to do and that his conduct was
related to his official duties. The question of whether
he was acting in good faith in the performance of his
duties, is a factual question for you to determine on
the basis of the evidence in the case. Element three,
intent to prevent the performance of his duties. The
third element is that the defendant had the specific
intent to prevent the public safety officer from per-
forming his lawful duties. A person acts intentionally
with respect to a result, when his conscious objective
is to cause such result. Element four, by certain means.
The fourth element is that the defendant threw or hurled
or caused to be thrown or hurled any bodily fluid,
including but not limited to, saliva, at [Sergeant]
Christos. Conclusion. In summary, the state must prove
beyond a reasonable doubt that, one, the defendant
assaulted a public safety officer; two, in the perfor-
mance of his duties; three, with the intent to prevent
the performance of his duties; and, four, by means of
throwing or hurling or causing to be thrown or hurled
any bodily fluid, including but not limited to saliva, at
[Sergeant] Christos.’’
During its deliberations, the jury wrote a note
requesting clarification from the court with regard to
the charge of assault of a public safety officer: ‘‘Can
we have clarification as to when an officer’s duties end?
(This in reference to the charge of an assault on an
officer).’’ The court informed both the state and defense
counsel of the existence of the note and, after dis-
cussing its contents, all parties agreed that the jury
charge as given by the court could not be expanded
upon or embellished. The court responded to the
request by explaining to the jury: ‘‘The answer lies in
your deliberations. That’s a factual finding that you will
deliberate upon. . . . [T]here are a few things that can
assist you in that; the testimony of the individuals
involved and the court’s jury charge to you. You work
within that framework, within that context, and through
your deliberations you will arrive at an answer to
that question.’’
We first address the state’s argument that the defen-
dant’s instructional error claim is not reviewable on
appeal. Specifically, the state argues that ‘‘[t]he defen-
dant implicitly waived his unpreserved claim that the
court erred by failing to instruct the jury on the speedy
information issue in response to the jury’s note . . .
[because] [he] was clearly on notice of the speedy infor-
mation issue . . . but chose not to raise that issue in
the context of the court’s instruction on the assault
charge, despite the jury’s note on that specific charge.’’
According to the state, the defendant ‘‘[i]nstead . . .
agreed with the court’s proposed response . . . and
. . . voiced no objection when the court issued its
response.’’ We agree with the state that the defendant
implicitly waived his claim of instructional error.
As set forth in part I C of this opinion, unpreserved
claims of instructional error are reviewable under Gold-
ing, unless they have been induced or implicitly waived
by the defendant. State v. Kitchens, supra, 299 Conn.
468. ‘‘Connecticut courts have consistently held that
when a party fails to raise in the trial court the constitu-
tional claim presented on appeal and affirmatively
acquiesces to the trial court’s order, that party waives
any such claim [under Golding].’’ (Internal quotation
marks omitted.) Id., 469. More specifically, a defendant
has waived his instructional error claim if he has failed
to take exception with or object to the instructions at
issue, and also has acquiesced in the court’s use of the
instructions after having had the opportunity to review
them. Id., 469–70.
In the present case, it is clear that the defendant has
implicitly waived his claim of instructional error. The
record shows that defense counsel had the opportunity
to review the jury instructions, and that he did not
object to them. Furthermore, defense counsel was given
the opportunity to consider the question posited to the
court by the jury, and he clearly acquiesced in the
court’s charge to the jury by agreeing that the instruc-
tions already given were sufficient. For these reasons,
we conclude that the defendant has implicitly waived
his instructional error claim.6
Having reached this conclusion, we now turn to the
defendant’s claim that he is entitled to a new trial
because the court’s jury charge requires reversal as
plain error. Specifically, the defendant claims that ‘‘[i]f
the jury had been informed that [the] law of arrest
required the police to apply for a warrant before going
to the defendant’s home to confront him . . . [t]here
is a reasonable possibility that the jury would have
concluded that [Sergeant] Christos, when spat upon,
was not performing his lawful duty and the jury [there-
fore] would have acquitted.’’
As established in part I C of this opinion, the plain
error doctrine consists of two prongs: ‘‘[An appellant]
cannot prevail under [the plain error doctrine] . . .
unless he demonstrates that the claimed error is both
so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice.’’ (Empha-
sis in original; internal quotation marks omitted.) State
v. McClain, supra, 324 Conn. 812.
We turn to the first prong of the plain error doctrine,
namely, whether the trial court’s decision not to inform
the jury ‘‘that [the] law of arrest required the police to
apply for a warrant before going to the defendant’s
home to confront him’’ is so clear an error that a failure
to reverse the judgment would result in manifest injus-
tice. See id., 812. The defendant’s claim in this regard
is dependent on his assertion that if the jury was
instructed as to the law of arrest, ‘‘[t]here is a reasonable
possibility that the jury would have concluded that [Ser-
geant] Christos . . . was not performing his lawful
duty and . . . would have acquitted.’’ Considering the
record in its entirety, we conclude that no such reason-
able possibility exists. As we concluded in part II A of
this opinion, whether a police officer has lawful author-
ity to conduct an arrest or serve a summons is irrelevant
to the question of whether that officer is acting in the
performance of his duties. This means that no clear
error occurred because, even if the court had provided
this instruction to the jury, it would not have changed
the question before the jury or the factors that the
jury could consider in determining whether Sergeant
Christos was acting in good faith in the performance
of his duties. Accordingly, we conclude that the defen-
dant is not entitled to relief under the doctrine of
plain error.
The judgments are affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place . . . .’’
2
Although Indrisano and Szymkiewicz both involve charges of disorderly
conduct, as opposed to charges of breach of the peace, they are still applica-
ble to the present case because ‘‘[t]he elements of the two statutes are
identical, except that § 53a-181 (a) (1) . . . concerns behavior in a public
place.’’ State v. Szymkiewicz, supra, 237 Conn. 618.
3
The specific language of the statute on which the defendant relies is: ‘‘Any
person who has been arrested with or without a warrant for commission
of a misdemeanor . . . may, in the discretion of the arresting officer, be
issued a written complaint and summons and be released on his written
promise to appear on a date and time specified.’’ General Statutes § 54-1h.
The defendant also cites Practice Book § 36-4 (Direction by Judicial Author-
ity for Use of Summons) and Practice Book § 36-8 (Issuance of Summons
by Prosecuting Authority in Lieu of Arrest Warrant) in support of this claim.
4
General Statutes § 54-1f (a) provides in relevant part: ‘‘Peace officers
. . . shall arrest, without previous complaint and warrant, any person for
any offense in their jurisdiction, when the person is taken or apprehended
. . . on the speedy information of others . . . .’’
5
Although our Supreme Court, in setting forth this standard, was referring
to General Statutes § 53a-167a (a); State v. Davis, 261 Conn. 553, 566, 804
A.2d 781 (2002); its analysis is equally applicable to § 53a-167c (a). See
id., 567.
6
Notwithstanding this conclusion, even if the defendant’s claim of instruc-
tional error was reviewable on the merits, it did not warrant a reversal of
the judgment of the trial court because there is virtually no possibility that
the jury was misled by the instruction at issue.