State v. Rivera ( 2020 )

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STATE OF CONNECTICUT v. JUAN J. RIVERA
(AC 42388)
DiPentima, C. J., and Alvord and Keller, Js.*
Syllabus
Convicted of the crime of breach of the peace in the second degree, the
defendant appealed to this court. The defendant was involved in an
altercation with an instructor at a tractor trailer training school, where
he was enrolled. The altercation began in the school’s student breakroom
and then continued outside to a parking lot area in front of a garage
on the premises. The defendant claimed that the evidence was insuffi-
cient to support a finding that the conduct giving rise to the conviction
had occurred in a public place, a necessary element of the applicable
statute (§ 53a-181 (a) (1)). Held:
1. The state could not prevail on its argument that the defendant’s claim
on appeal was unreviewable in that the defendant, through counsel,
explicitly waived his right to have the state prove beyond a reasonable
doubt that the altercation occurred in a public place under § 53a-181 (a)
(1) by conceding during closing argument that the altercation occurred
in a public place, as defense counsel’s remarks, whether viewed either
in isolation or alongside the state’s closing arguments and the court’s
jury instructions, did not demonstrate that the defendant intentionally
relinquished or abandoned his right to have the state prove the public
place element beyond a reasonable doubt.
2. The evidence was not sufficient to support the defendant’s conviction of
breach of the peace in the second degree, as the cumulative force of
the state’s evidence, when viewed in the light most favorable to sus-
taining the verdict, was insufficient to establish beyond a reasonable
doubt that the area in which the altercation occurred was a public place;
the plain and ordinary meaning of ‘‘public’’ confirmed that the legislature
intended for § 53a-181 (a) (1) to apply only to conduct that occurs on
property that is held out for use by all members of the public, not just
select groups, and, based on the text of the statute, its relationship to
other statutes, and the plain meaning of the word ‘‘public,’’ the meaning
of the term ‘‘public place’’ in § 53a-181 (a) was plain and unambiguous,
and the state produced no evidence showing that the area in which the
altercation occurred was used or held out for use by the public, and
the jury was left to speculate about the characteristics of the location.
Argued June 17—officially released September 29, 2020
Procedural History
Substitute information charging the defendant with
three counts each of the crimes of breach of the peace
in the second degree and threatening in the second
degree, brought to the Superior Court in the judicial
district of Tolland, geographical area number nineteen,
and tried to the court, Seeley, J.; thereafter, the court
granted the defendant’s motion for judgment of acquit-
tal as to two counts of breach of the peace in the second
degree; verdict and judgment of guilty of one count of
breach of the peace in the second degree, from which
the defendant appealed to this court. Reversed; judg-
ment directed.
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Alison Kubas, special deputy assis-
tant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Juan J. Rivera, appeals
from the judgment of conviction, rendered following a
jury trial, of breach of the peace in the second degree
in violation of General Statutes § 53a-181 (a) (1). The
defendant claims that (1) the evidence was insufficient
to support a finding that the conduct giving rise to the
conviction had occurred in a public place and (2) the
conviction violated the constitutional prohibition
against double jeopardy. With respect to the first claim,
we reverse the judgment of the trial court. Because we
conclude that the evidence was insufficient to support
the jury’s verdict of guilty, and we have reversed the
judgment of conviction and ordered that the trial court
render a judgment of acquittal, we need not reach the
second claim.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The defendant was enrolled as a student at the New
England Tractor Trailer Training School (school) in
Somers, where he was training to get his commercial
driver’s license. On the morning of July 7, 2016, Walter
Tarbox, an instructor at the school, entered the school’s
student breakroom to check in the approximately
twenty-five students who were present. The defendant
and several other students were seated at a table that
Tarbox wanted to use to check students in for the day.
When Tarbox asked to use the table, some students
moved, but others, including the defendant, remained
seated. The defendant stood up and began yelling at
Tarbox. The defendant kept ‘‘getting into [Tarbox’]
face’’ and was close enough to Tarbox that his nose
touched Tarbox’ nose. Whenever Tarbox took a step
back, the defendant ‘‘kept coming forward’’ toward Tar-
box ‘‘in a rage.’’ The defendant called Tarbox ‘‘the ‘N’
word’’ and said that Tarbox needed to ‘‘get beat up.’’
He then stated that he wanted to punch Tarbox in the
mouth and that he and ‘‘his boys’’ would ‘‘come after’’
Tarbox and Tarbox’ family.
The altercation in the breakroom lasted roughly fif-
teen minutes until the defendant told Tarbox that he
wanted to ‘‘go outside and fight [Tarbox].’’ Tarbox rea-
soned that going outside and away from the other stu-
dents might diffuse the situation and allow him to locate
a lead instructor. The two men walked outside to a
parking lot area in front of a garage on the premises.
While outside, the defendant continued yelling at Tar-
box, calling him ‘‘the ‘N’ word,’’ and saying that he
would ‘‘bring his boys’’ and ‘‘take care of’’ him and his
family. At times, the defendant pulled his fist back,
‘‘squar[ed] up’’ with Tarbox, and told Tarbox to fight
him.
While outside, Tarbox used his cell phone to call
Kevin Lusty, a lead instructor at the school, to inform
him about the situation. Tarbox asked Lusty to meet
him in front of the garage. After speaking with Tarbox
about what happened, Lusty asked the defendant to
join him in his supervisor’s office to have a private
conversation. The two sat down and began speaking
about the situation, but Lusty stopped the conversation
when, in his words, the defendant ‘‘started to disrespect
[Tarbox].’’ The defendant then stood up and slammed
his hands on the desk in the office. Immediately after,
he said ‘‘fuck you’’ to Lusty and told him not to go
outside if, in the defendant’s words, he knew what was
good for him.
The defendant went back outside and Lusty, con-
cerned for Tarbox, followed him. The defendant, still
angry, started coming toward Lusty, but went off to the
side of Lusty and then began walking in front of Lusty.
The defendant went toward the front of the garage again
while yelling about his displeasure with the school.
Lusty persuaded the defendant to go into the front of
the building and then asked him to leave the premises.
The defendant initially refused to leave, but left once
Lusty threatened to call the police.
After the incident, Tarbox went home for the day
and returned to the school two days later, where he
gave a signed, sworn statement to Officer Scott Mazza
of the Somers Police Department. After receiving this
statement, Mazza and another officer called the defen-
dant. When Mazza asked the defendant about the inci-
dent, the defendant raised his voice and became, in
Mazza’s words, ‘‘agitated’’ and ‘‘angry.’’ Mazza then
asked the defendant to provide a statement to the police
concerning the incident, but the defendant refused and
hung up.
Pursuant to an arrest warrant, the police arrested the
defendant on March 10, 2017. By substitute information,
the state charged the defendant with one count of
breach of the peace in the second degree in violation
of § 53a-181 (a) (1), one count of breach of the peace
in the second degree in violation of § 53a-181 (a) (3),
one count of breach of the peace in the second degree
in violation of § 53a-181 (a) (5), and three counts of
threatening in the second degree in violation of General
Statutes (Rev. to 2015) § 53a-62 (a). The defendant
pleaded not guilty to all six counts.
A jury trial began on August 24, 2018. The state called
Tarbox, Lusty, and Mazza to testify about the incident.
The defendant did not call any witnesses and the court
did not admit any exhibits from either party into
evidence.
At the close of the state’s case-in-chief, the defendant
moved for a judgment of acquittal on all counts,1 which
the court granted as to the second count, breach of the
peace in violation of § 53a-181 (a) (3), and the third
count, breach of the peace in violation of § 53a-181 (a)
(5). On August 28, 2018, the jury returned a guilty verdict
on count one, breach of the peace in violation of § 53a-
181 (a) (1), and found the defendant not guilty of the
remaining three counts. The defendant was sentenced
to a period of six months incarceration, execution sus-
pended, followed by one year of conditional discharge.
This appeal followed.
The defendant claims that the evidence does not sup-
port the conviction of breach of the peace in the second
degree because it does not support a finding that the
conduct giving rise to the conviction, the altercation
with Tarbox, had occurred in a public place.2 We agree.
I
Before turning to the merits of this claim, we must
first address the state’s argument that it is unreviewable
by this court. The state argues that the defendant,
through counsel, explicitly waived his right to have the
state prove every element of § 53a-181 (a) (1) beyond a
reasonable doubt by conceding during closing argument
that the altercation occurred in a public place. We dis-
agree with the state’s contention.
‘‘[W]aiver is an intentional relinquishment or aban-
donment of a known right or privilege. . . . It involves
the idea of assent, and assent is an act of understanding.
. . . The rule is applicable that no one shall be permit-
ted to deny that he intended the natural consequences
of his acts and conduct. . . . In order to waive a claim
of law it is not necessary . . . that a party be certain
of the correctness 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.’’ (Internal quotation
marks omitted.) State v. Kitchens, 299 Conn. 447, 469,
10 A.3d 942 (2011).
‘‘It is well settled that a criminal defendant may waive
rights guaranteed to him under the constitution. . . .
The mechanism by which a right may be waived, how-
ever, varies according to the right at stake. . . . For
certain fundamental rights, the defendant must person-
ally make an informed waiver. . . . For other rights,
however, waiver may be effected by action of counsel.
. . . When a party consents to or expresses satisfaction
with an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal.’’
(Internal quotation marks omitted.) State v. Foster, 293
Conn. 327, 337, 977 A.2d 199 (2009).
‘‘[A]lthough there are basic rights that the attorney
cannot waive without the fully informed and publicly
acknowledged consent of the client, the lawyer has—
and must have—full authority to manage the conduct
of the trial. . . . As to many decisions pertaining to
the conduct of the trial, the defendant is deemed bound
by the acts of his lawyer-agent and is considered to
have notice of all facts, notice of which can be charged
upon the attorney. . . . Thus, decisions by counsel are
generally given effect as to what arguments to pursue
. . . what evidentiary objections to raise . . . and
what agreements to conclude regarding the admission
of evidence . . . . Absent a demonstration of ineffec-
tiveness, counsel’s word on such matters is the last.’’
(Internal quotation marks omitted.) State v. Kitchens,
supra, 299 Conn. 467–68, quoting New York v. Hill, 528
U.S. 110, 114–15,120 S. Ct. 659, 145 L. Ed. 2d 560 (2000).
‘‘Courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and
. . . do not presume acquiescence in the loss of funda-
mental rights.’’ (Internal quotation marks omitted.)
State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441
(1982), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58
S. Ct. 1019, 82 L. Ed. 1461 (1938). ‘‘[A] waiver of a
fundamental constitutional right is not to be presumed
from a silent record.’’ State v. Shockley, supra, 707,
citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969). For a waiver to be effec-
tive, ‘‘it must be clearly established that there was an
intentional relinquishment or abandonment of a known
right or privilege.’’ (Internal quotation marks omitted.)
Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 16 L.
Ed. 2d 314 (1966).
Although it is a fundamental aspect of due process
that the state must prove beyond a reasonable doubt
each element of an offense, a defendant may concede
that the state has sustained its burden of proof with
respect to one or more elements. State v. Cooper, 38
Conn. App. 661, 669–70, 664 A.2d 773, cert. denied, 235
Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S.
1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). Connecti-
cut courts have never required an express waiver of
the right to require the state to prove each element of
a crime. Id., 670.
Having examined the applicable principles of law, we
turn to the facts that the state argues implicate waiver
in the present case. While speaking to the jury during
closing argument about the three elements the state
must prove under § 53a-181 (a) (1), defense counsel
stated in relevant part: ‘‘So, the judge is going to instruct
you on a number of things. He’s going to instruct you
on the law about what—oh, one more thing on the
breach of [the] peace. You also have to find that the
inconvenience, annoyance and alarm that was caused
by—all that going on with [the defendant] went on and
actually caused alarm. It has to be taking place in a
public place, so I’ll give you that. It was a public place.
It was the New England Training School, New England
Tractor Training School, and there [were] twenty-five
people there.
‘‘You also have to find that it caused inconvenience,
annoyance and alarm to the other twenty-five students.
There is not testimony that that happened at all.
‘‘All we heard was that they were there, but we didn’t
hear any testimony that any of them were alarmed, that
any of them were upset. Nobody came in here to testify
that they were. All we heard was Mr. Tarbox say, oh,
they were there, that he was concerned about them,
but there [were] no students who came and said that
they were concerned, that they were upset.’’ (Empha-
sis added.)
Defense counsel then stated: ‘‘And remember you’ve
got to find each and every element be proven beyond
a reasonable doubt—not just one, not just half of one—
each and every element of the crime must be proven
beyond a reasonable doubt in order to find some-
body guilty.’’
Following the completion of defense counsel’s clos-
ing argument, the state conducted its rebuttal closing
argument. The state first argued: ‘‘Now, you just heard
a lot from the defense attorney, and I’ll start off with
first the breach of [the] peace claim. The state does not
have to make a showing there was an actual inconve-
nience, annoyance or alarm in the public, but rather
just that the incident took place in a public location.
‘‘In this case there was testimony that the incident
with [Tarbox] and the defendant occurred at the New
England Tractor Trailer School, where at least twenty-
five other students were present, and I would argue
that that is a public place.’’ After the state finished
delivering its rebuttal argument, the jury exited the
courtroom and the court had a short discussion with the
attorneys that did not involve the public place element.
After a brief recess, the court called the jury back into
the courtroom to receive jury instructions.3
The court instructed the jury in relevant part that, if
‘‘the state fails to meet its burden of proof as to one
or more essential elements of that offense, the presump-
tion of innocence alone will require that [the defendant]
be found not guilty of that offense.’’ The court also
stated that ‘‘[a]ny argument or statement by a lawyer
is not evidence.’’
When the court instructed the jury on the essential
elements of § 53a-181 (a) (1), it stated that, ‘‘[i]f you
were to find the defendant guilty of this offense the
state must prove the following three [elements] beyond
a reasonable doubt: (1) With intent to cause inconve-
nience, annoyance or alarm or recklessly creating a risk
thereof; (2) [t]he defendant engaged in violent, tumultu-
ous or threatening behavior; and (3) [t]hat the conduct
occurred in a public place.’’
When instructing the jury regarding the third element,
the court stated: ‘‘The third element the state must
prove beyond a reasonable doubt is that the conduct
occurred in a public place. Public place means any area
that is used or held out for use by the public whether
court concluded its instructions on this count by
reminding the jury that the state was required to prove
beyond a reasonable doubt all three elements, including
that the offense occurred in a public place.
On appeal, the state argues that defense counsel’s
statement that the conduct ‘‘[had] to be taking place in
a public place, so I’ll give you that. It was a public
place,’’ was tantamount to a waiver by the defendant
of his right to require the state to prove beyond a reason-
able doubt the public place element of § 53a-181 (a)
(1). In support of this argument, the state directs our
attention to the defendant’s failure to challenge the
sufficiency of the evidence of the public place element
in his motion for a judgment of acquittal, despite having
raised such claims with respect to the other two ele-
ments of § 53a-181 (a) (1). The state asserts that by
waiving the right to require the state to prove this ele-
ment, the defendant’s claim is unreviewable by this
court.4
The defendant argues that defense counsel’s remarks
did not constitute a waiver of his constitutional right
to be convicted only upon sufficient evidence. First, he
asserts that he personally would have had to waive this
right in order for the waiver to be valid. Second, he
argues that defense counsel’s statement did not consti-
tute a waiver and, instead, could be viewed as ‘‘an
assumption for the sake of an argument relating to
the ‘inconvenience’ prong of the statute.’’ (Emphasis
in original.) Third, he contends that the court’s jury
instructions reflect that neither the state nor the court
understood defense counsel’s remarks to constitute a
waiver and that, ultimately, the jury was instructed that
the state bore the burden of proving each element of
the offense beyond a reasonable doubt.
We conclude that this statement did not constitute
an express waiver. First, the remarks made by defense
counsel are ambiguous and reasonably may be con-
strued to pertain to a different element of § 53a-181 (a)
(1). At the time defense counsel made these remarks,
she was discussing how the state must prove beyond
a reasonable doubt that the defendant acted with the
‘‘intent to cause inconvenience, annoyance or alarm, or
that he recklessly created a risk thereof . . . .’’ General
Statutes § 53a-181 (a). As the defendant argues in his
reply brief, defense counsel might have been assuming
for the sake of argument that, even if the state had
proved that the altercation occurred in a public place,
it would still need to prove this other element. By noting
that there were other students in the breakroom,
defense counsel was focused on the effects of the defen-
dant’s actions on those around him to articulate why
the state had not proven this element.
Further, defense counsel repeatedly stated that there
were twenty-five people present, which demonstrates
that her statement that ‘‘[i]t was a public place’’ arguably
pertained only to the portion of the alleged altercation
that had occurred in the breakroom. Thus, even if we
were to assume that defense counsel had intended to
waive the defendant’s right to challenge the sufficiency
of the evidence as to the public place element, her
remarks suggest that she had a misunderstanding of
the meaning of ‘‘public place’’ within the statute, which
only concerns a place’s use and not merely the number
of persons to which it is accessible. See General Statutes
§ 53a-181 (a) (‘‘[f]or purposes of this section, ‘public
place’ means any area that is used or held out for use
by the public whether owned or operated by public or
private interests’’). The number of people present when
an altercation occurs has no bearing on whether a place
falls within this definition.
Second, even if the statement was unambiguous, nei-
ther the state nor the trial court recognized defense
counsel’s statement as a waiver. During the state’s
rebuttal closing argument, the prosecutor argued that
the state had proved the public place element beyond
a reasonable doubt. She made no mention of the sup-
posed waiver that occurred just moments before. The
court, in its instructions, articulated multiple times that
the state was required to prove the public place element
beyond a reasonable doubt. The court instructed the
jury that one of the essential elements of the offense
was that it occurred in a public place and provided
the jury with the statutory definition of ‘‘public place,’’
which removed any confusion that defense counsel’s
statement might have created. Additionally, the court
reminded the jury that any statement by an attorney
was not evidence. Neither the state nor the defendant
objected to the court’s instructions on this ground.
The state claims that defense counsel’s statement
was an explicit waiver, yet it relies on inapplicable cases
in which our courts have found that defendants have
made implicit waivers by failing to reject jury instruc-
tions that they later challenged on appeal. The state
primarily discusses State v. Cooper, supra, 38 Conn.
App. 669, a case in which a defendant, through counsel,
implicitly waived his right to have the state prove
beyond a reasonable doubt an element of a crime of
which he was found guilty. In Cooper, the defendant
was convicted under General Statutes § 14-227a (a) of
operating a motor vehicle on Interstate 84 (I-84) while
under the influence of alcohol. Id., 662–63. This statute
required the state to prove beyond a reasonable doubt
that the defendant had operated a vehicle on a public
highway. Id., 666. To satisfy its burden, the state intro-
duced evidence that the state Department of Transpor-
tation maintains I-84 and called a police sergeant to
testify, without objection, that I-84 is a public highway.
Id., 667–68. During closing arguments, the prosecutor
stated, without objection, that there was uncontro-
verted evidence that the incident occurred on a public
highway and told the jury that the judge would instruct
them that it was public. Id., 668. The trial court then
instructed the jury ‘‘that the highway in question is a
public highway. So you need not deal with that element
and you need not make that finding.’’ (Internal quotation
marks omitted.) Id., 664. On appeal, the defendant
claimed that the trial court improperly instructed the
jury as to this element. Id.
Cooper is factually distinguishable from the present
case. Here, as we will discuss in greater detail later in
this opinion, the state produced no evidence that the
altercation had occurred in a public place. On the con-
trary, there are several pieces of testimony that suggest
that the area in question was not open to the public.
Next, the prosecutor did not assert in her rebuttal clos-
ing argument that the defendant had conceded this ele-
ment. Instead, she argued that the state had proven
this element beyond a reasonable doubt. Finally, the
defendant does not challenge the jury instructions, as
they included detailed instructions concerning the ele-
ment that the state now argues the defendant conceded
at trial.
Defense counsel’s remarks, whether viewed either in
isolation or alongside the state’s closing arguments and
the court’s jury instructions, do not demonstrate that
the defendant intentionally relinquished or abandoned
his right to have the state prove the public place element
of § 53a-181 (a) (1) beyond a reasonable doubt. Accord-
ingly, we are not persuaded that a waiver occurred.
II
We next address the defendant’s claim that the evi-
dence did not support a finding that the altercation with
Tarbox occurred in a public place for purposes of § 53a-
181 (a) (1).5 We agree.
We begin by setting forth the standard of review for
claims of evidentiary insufficiency in a criminal appeal.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the [finder of fact] must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . If it is reasonable and logical for the [finder
of fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘In evaluating evidence, the [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The [finder of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Internal quota-
tion marks omitted.) State v. Dojnia, 190 Conn. App.
353, 371–72, 210 A.3d 586, cert. granted on other
grounds, 333 Conn. 914, 215 A.3d 1211 (2019).
Section 53a-181 (a) provides in relevant part: ‘‘A per-
son 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 . . . .’’
To prove a breach of the peace in violation of § 53a-
181 (a) (1), the state must prove beyond a reasonable
doubt that ‘‘(1) the defendant engaged in fighting or in
violent, tumultuous or threatening behavior, (2) that
this conduct occurred in a public place and (3) that the
defendant acted with the intent to cause inconvenience,
annoyance or alarm, or that he recklessly created a risk
thereof.’’ (Internal quotation marks omitted.) State v.
Colon, 117 Conn. App. 150, 158, 978 A.2d 99 (2009).
Section 53a-181 (a) defines ‘‘public place’’ as ‘‘any area
that is used or held out for use by the public whether
owned or operated by public or private interests.’’
We next turn to the evidence that is related to the
disputed essential element. At trial, Tarbox testified
that after he and the defendant left the breakroom, their
altercation continued outside of a garage at the school.
During cross-examination, the following exchange
occurred between defense counsel and Tarbox:
‘‘Q. You were outside your garage. Correct?
‘‘A. Correct.
‘‘Q. Well, were you backed up against the wall?
‘‘A. We [were] in the corner of the building. The build-
ing is a—it’s a corner and there’s a door. The door is
right there.
‘‘Q. Well, you walked out with him and you were
trapped?
‘‘A. No. I started walking out into the parking lot.
‘‘Q. Okay. So you started walking into the parking lot.
‘‘A. And—
‘‘Q. Okay.
‘‘A. Because it’s all open, the building, and then you
come out the door and it’s open but they park trucks
to the left.’’
Tarbox also testified that he asked Lusty to come to
the front of the garage through the student breakroom
door, which was ‘‘by the garage.’’ Lusty corroborated
this testimony when he described the altercation by
testifying in relevant part, ‘‘I went out into the front of
the garage where [Tarbox] was standing and there was
a student who was irate at the time and [Tarbox] was
trying to get my attention.’’
During the state’s direct examination, the following
exchange occurred between the prosecutor and
Tarbox:
‘‘A. We have a special—we have a separate parking
place for our vehicles because we work there versus
students.
‘‘Q. So when you say our vehicles, you mean the
employees?
‘‘A. The employees.
‘‘Q. And you stated that the students walk through
that parking lot?
‘‘A. They walk by our vehicles all the time.’’
Additionally, Lusty testified during his direct exami-
nation that, after his conversation with the defendant
in his supervisor’s office, the defendant ‘‘started going
toward the front of the garage, again . . . .’’ Lusty then
stated, ‘‘I got [the defendant] into the front of the build-
ing and I asked him to leave the facility.’’
The defendant argues that the state introduced insuf-
ficient evidence to prove beyond a reasonable doubt
that the defendant was in a ‘‘public place’’ during the
altercation with Tarbox. He notes that the definition of
‘‘public place’’ in § 53a-181 (a) is concerned with how
the property on which an incident takes place is used,
and not with factors such as visibility to the public and
the number of people present. He contends that the
state introduced ‘‘no evidence’’ to prove that the
breakroom or the area outside the garage were used
or held out for use by the public. In fact, he argues,
‘‘safety concerns would be raised by allowing the public
access to a tractor trailer garage area.’’
To bolster his argument, the defendant points to other
statutes within our Penal Code, which we will discuss,
that have broader definitions of ‘‘public place.’’ He
argues that these statutes demonstrate that, among
other things, our legislature did not intend for § 53a-
181 (a) (1) to extend to all commercial settings. Instead,
according to the defendant, it applies only to places
‘‘where any member of the public may freely enter with-
out specific invitation, such as a public park, a road, a
grocery store, a museum, or a shopping mall.’’ He notes
that General Statutes § 53a-182 (a) (1), Connecticut’s
disorderly conduct statute, covers the same conduct as
§ 53a-181 (a) (1), but also applies when the conduct
occurs in nonpublic places. He adds that the plain and
ordinary meaning of the word ‘‘public’’ confirms that a
‘‘public place’’ is one that must be held out for use by
‘‘all’’ in the ‘‘entire community.’’
The state argues that a jury could have reasonably
found that the area in front of the school’s garage met
the definition of ‘‘public place’’ in § 53a-181 (a). Through
its brief and its statements made at oral argument, the
state concedes that the breakroom does not meet this
definition. The state, however, points to Tarbox’ testi-
mony that the outdoor area where the altercation took
place was ‘‘all open, the building and then you come
out the door and it’s open but they park trucks to the
left.’’ At oral argument before this court, the state con-
ceded that this testimony was the only evidence proving
that the area outside of the garage was a ‘‘public place.’’
In its brief, the state emphasizes that there is no evi-
dence that the property was ‘‘fenced in or that access
was otherwise restricted in any way.’’
Because there is no Connecticut case law interpreting
‘‘public place’’ under § 53a-181 (a), the state relies on
State v. Cutro, 37 Conn. App. 534, 657 A.2d 239 (1995),
a case in which the defendant was convicted of public
indecency in violation of General Statutes § 53a-186 (a)
(2) for an incident that occurred in a mall parking lot.
Id., 535–36. The state cites to cases from other states
to strengthen its position that ‘‘parking lots on private
property, open to the public, are public places,’’ and
that a key factor for courts to consider is a parking
lot’s ‘‘accessibility to the public.’’
In order to rule on the defendant’s claim, we must
interpret the term ‘‘public’’ that is defined in § 53a-181
(a). We begin by setting forth the guiding principles of
statutory interpretation. General Statutes § 1-2z pro-
vides: ‘‘The meaning of a statute shall, in the first
instance, be ascertained from the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ ‘‘The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) State v. Brown, 310 Conn.
693, 702, 80 A.3d 878 (2013).
‘‘[W]hen the statute being construed is a criminal
statute, it must be construed strictly against the state
and in favor of the accused. . . . [C]riminal statutes
[thus] are not to be read more broadly than their lan-
guage plainly requires and ambiguities are ordinarily to
be resolved in favor of the defendant. . . . Rather,
penal statutes are to be construed strictly and not
extended by implication to create liability which no
language of the act purports to create.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. LaFleur,
307 Conn. 115, 126–27, 51 A.3d 1048 (2012).
The legislature expressly intended § 53a-181 (a) (1)
to apply only to conduct that occurs on property ‘‘used
or held out for use by the public . . . .’’ Despite the
fact that the legislature defined ‘‘public place’’ as that
term is used in § 53a-181 (a) (1), it did not define the
word ‘‘public.’’ ‘‘In the absence of a definition of terms
in the statute itself, [w]e may presume . . . that the
legislature intended [a word] to have its ordinary mean-
ing in the English language, as gleaned from the context
of its use. . . . Under such circumstances, it is appro-
priate to look to the common understanding of the term
as expressed in a dictionary.’’ (Internal quotation marks
omitted.) Efstathiadis v. Holder, 317 Conn. 482, 488,
119 A.3d 522 (2015), quoting State v. LaFleur, supra,
307 Conn. 128. Thus, looking at the plain and ordinary
meaning of the word ‘‘public’’ sheds light on the defini-
tion of ‘‘public place’’ as it applies to § 53a-181 (a). When
used as an adjective, Black’s Law Dictionary defines
‘‘public’’ as: ‘‘1. Of, relating to, or involving an entire
community, state, or country. 2. Open or available for
all to use, share, or enjoy. 3. (Of a company) having
shares that are available on an open market.’’ Black’s
Law Dictionary (11th Ed. 2019), p. 1483. As the defen-
dant notes in his brief, the plain and ordinary meaning
of ‘‘public’’ confirms that the legislature intended for
§ 53a-181 (a) (1) to apply only to conduct that occurs
on property that is held out for use by all members of
the public, not just select groups.
Section 1-2z next directs us to look at the relationship
of § 53a-181 (a) (1) to other statutes. The relationship
between § 53a-181 (a) (1) and other statutes further
reveals the legislature’s intended meaning of the word
‘‘public.’’ The term ‘‘public place’’ appears in four other
sections of the penal code. General Statutes § 53a-180aa
(a), which defines breach of the peace in the first
degree, uses the same definition as that used in § 53a-
181 (a). Section 53a-182 (a) (6), which defines disorderly
conduct, uses the term ‘‘public place,’’ but does not
define it. The two remaining statutes, which we will
discuss, illustrate why the legislature’s use of ‘‘public
place’’ in § 53a-181 (a) (1) is narrower in scope than
the state argues.
First, § 53a-186 (a), Connecticut’s public indecency
statute, defines ‘‘public place’’ as ‘‘any place where the
conduct may reasonably be expected to be viewed by
others.’’ This statute criminalizes the performance of
certain lewd acts in a public place, which presumably
is why the definition focuses on the visibility of the
place where the acts take place, rather than the place’s
use. If the legislature intended § 53a-181 (a) (1) to
extend to conduct that occurs within view of members
of the public, it could have included similar language
in the statute’s definition. Instead, we may presume
from the definition applicable to § 53a-181 (a) (1) that
the legislature was not concerned with this characteris-
tic for the purpose of breach of the peace.
Second, General Statutes § 53a-189c criminalizes the
unlawful dissemination of an intimate image. Subsec-
tion (b) of § 53a-189c provides that the provisions of
subsection (a) do not apply to, inter alia, ‘‘[a]ny image
. . . of such other person if such image resulted from
voluntary exposure or engagement in sexual inter-
course by such other person, in a public place, as
defined in section 53a-181, or in a commercial setting
. . . .’’ (Emphasis added.) ‘‘We presume that the legisla-
ture did not intend to enact meaningless provisions.
. . . [S]tatutes must be construed, if possible, such that
no clause, sentence or word shall be superfluous, void
or insignificant . . . .’’ (Internal quotation marks omit-
ted.) State v. LaFleur, supra, 307 Conn. 126. The addi-
tion of the phrase ‘‘or in a commercial setting’’ reflects
that the legislature recognized that there are commer-
cial settings that are not used or held out for use by
the public. We may presume that, if the legislature
intended for § 53a-181 (a) to apply to conduct in all
commercial settings, it would have included this clause
or similar language in the statute’s definition.
The legislature enacted § 53a-182 (a) (1) to cover
altercations that occur in commercial settings that are
not used or held out for use by the public. This subsec-
tion, which criminalizes disorderly conduct, mirrors the
language of § 53a-181 (a) (1), but does not contain the
term ‘‘public place.’’ See State v. Taveras, 183 Conn.
App. 354, 376 n.17, 193 A.3d 561 (2018) (‘‘[w]e note that
elements of breach of the peace in the second degree
are identical to the elements of disorderly conduct,
except that breach of the peace in the second degree
requires that the proscribed conduct occur in a public
place’’). In State v. Indrisano, 228 Conn. 795, 799–800,
640 A.2d 986 (1994), for example, the defendant was
convicted of disorderly conduct under § 53a-182 (a) (1)
for an altercation that took place in the common area
of an office space that the victim shared with another
tenant. The existence of the disorderly conduct statute
further illustrates that § 53a-181 (a) (1) does not cover
commercial settings that are not open to the public.
On the basis of the text of § 53a-181 (a), its relation-
ship to other statutes, and the plain meaning of the
word ‘‘public,’’ we are persuaded that the meaning of
the term ‘‘public place’’ is plain and unambiguous and
does not yield absurd or unworkable results. It is there-
fore not necessary for us to look to extratextual evi-
dence of its meaning.
The cases that the state cites in support of its interpre-
tation of the statute are unpersuasive. Cutro, the main
case on which the state relies, is inapplicable to the
case before us, as it involves a different statute with
its own definition of ‘‘public place.’’ State v. Cutro,
supra, 37 Conn. App. 535. As we discussed previously,
the defendant in Cutro was convicted of public inde-
cency in violation of § 53a-186 (a) (2), which defines
‘‘public place’’ as ‘‘any place where the conduct may
reasonably be expected to be viewed by others.’’ Id.,
535 n.1. This court, in Cutro, reasoned that the jury had
sufficient evidence from which it could conclude that
the defendant’s automobile, which was parked in a mall
parking lot, met this definition. Id., 543–44. It does not
follow, however, that every parking lot is a public place.
The state must still prove that the lot is used or held
out for use by the public. If anything, Cutro weakens
the state’s argument by highlighting the contrast
between this definition and the definition contained
within § 53a-181 (a).
We are not persuaded by the out-of-state cases that
the state cites, as the cases apply different breach of
the peace statutes and do not shed light on the meaning
of § 53a-181 (a). The state does not indicate if these
statutes define ‘‘public place,’’ nor does it attempt to
articulate how the statutes are analogous to § 53a-181
(a). Thus, these cases do not add to what we can glean
from the definition of ‘‘public place’’ in § 53a-181 (a),
this definition’s relationship to other definitions of
‘‘public place’’ within the Penal Code, and the plain
meaning of the word ‘‘public.’’
We turn now to the defendant’s claim that the state
did not produce sufficient evidence to prove the ‘‘public
place’’ element in § 53-181 (a) (1) beyond a reasonable
doubt. When construing the evidence in the light most
favorable to sustaining the verdict, we are unable to
conclude that a jury could have reasonably found that
the area outside of the garage was a public place.
The state produced no evidence showing that this
area was used or held out for use by the public. The
prosecutor did not ask its witnesses for details about
this area, such as whether prospective students or other
members of the public used it to park. The state did
not proffer into evidence maps or photographs to dem-
onstrate that entry to the area was unrestricted. Instead,
the jury was left to speculate about the characteristics
of the location.
The only evidence that the state can point to is Tar-
box’ testimony that the area in front of the garage was
‘‘all open.’’ This testimony is ambiguous because it is
unclear what Tarbox was referencing when he used the
phrase ‘‘all open.’’ It is unreasonable to infer from this
vague language that Tarbox meant that the area was
accessible by members of the public generally, rather
than just to students and staff of the school. He made
this comment after clarifying that he was in the corner
of the building, but not trapped near the wall. He pro-
ceeded to say that he walked into the parking lot. Thus,
he could have been explaining that he and the defendant
were outside of the building, as opposed to the doorway
through which they came and the garage outside of
which they stood. It is also unclear if Tarbox was
describing the character of the parking lot itself, as
opposed to its openness to the public. The parking lot
could have been large and physically open to accommo-
date the trucks parked to the left, but contained signs,
fencing, or a gate to restrict public access.
When viewing Tarbox’ ‘‘all open’’ comment alongside
other testimony, it is even more probable that a jury
could have inferred that the area outside of the garage
was not open to the public. First, Tarbox testified that
employees had their own parking lot, which meant that
there were multiple parking lots on the school’s prem-
ises. Further, the existence of a parking lot that was
‘‘all open,’’ except for trucks parked on the left, could
imply that the roughly twenty-five students who were
at the school at the time were not allowed to park there.
One possible explanation is that this parking lot was
only for tractor trailers. Second, Tarbox’ testimony
about these trucks indicates that vehicles, presumably
tractor trailers, drove through that particular parking
lot, and possibly in and out of the garage. Thus, it is
reasonable to infer that there would be a large area
that was ‘‘all open’’ for drivers to maneuver these trucks.
When combined with Tarbox’ testimony that the inci-
dent occurred in front of the garage, and Lusty’s testi-
mony corroborating this statement, one could reason-
ably infer that the school had an interest in keeping
members of the public away from this area. Third,
Lusty’s testimony that he led the defendant to the front
of the building before asking him to leave suggests that
the garage area did not have a means of egress. Without
more evidence, a jury could not reasonably draw the
inference that the school held out this area for use by
the public.
The cumulative force of the state’s evidence, even
when viewed in the light most favorable to sustaining
the verdict, was insufficient to establish beyond a rea-
sonable doubt that the area in which the altercation
occurred was a public place as required by § 53a-181
(a) (1). For the foregoing reasons, we conclude that
there is no reasonable view of the evidence that sup-
ports the jury’s verdict of guilty.
‘‘[A] defendant convicted on the basis of insufficient
evidence is entitled to a judgment of acquittal.’’ State
v. Soto, 175 Conn. App. 739, 746, 168 A.3d 605, cert.
denied, 327 Conn. 970, 173 A.3d 953 (2017). Therefore,
we must reverse the judgment of conviction.
The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Although defense counsel, in connection with the motion for judgment
of acquittal, argued that the evidence was insufficient to support a conviction
for breach of the peace in violation of § 53a-181 (a) (1), he did not advance
the argument raised in claim one of this appeal, namely, that the state
did not prove beyond a reasonable doubt that the incident occurred in a
public place.
2
At trial, the state’s theory of the case on this count focused on the
defendant’s altercation with Tarbox, not with Lusty. The state’s closing
argument solely addressed the defendant’s conduct toward Tarbox and
only cited Lusty’s testimony to corroborate Tarbox’ account of the events.
Similarly, the jury instructions on this count directed the jury’s attention
only to the defendant’s conduct toward Tarbox.
‘‘We assume that the fact finder is free to consider all of the evidence
adduced at trial in evaluating the defendant’s culpability, and presumably
does so, regardless of whether the evidence is relied on by the attorneys.
. . . When the state advances a specific theory of the case at trial, however,
sufficiency of the evidence principles cannot be applied in a vacuum. Rather,
they must be considered in conjunction with an equally important doctrine,
namely, that the state cannot change the theory of the case on appeal.’’
(Citation omitted; internal quotation marks omitted.) State v. Carter, 317
Conn. 845, 853–54, 120 A.3d 1229 (2015). Before this court, the defendant
and the state focus their analysis on the defendant’s conduct toward Tarbox.
Thus, consistent with the state’s theory of the case at trial as well as the
arguments advanced on appeal, we likewise focus our analysis on whether
the evidence was sufficient to prove beyond a reasonable doubt that the
altercation with Tarbox occurred in a public place.
3
During oral argument before this court, the state contended that the
trial court instructed the jury about the public place element because the
court gave its jury instructions immediately after the state finished its rebut-
tal. Therefore, the state argued, there was no opportunity for the trial court
to reconfigure the jury instructions to account for the alleged waiver. The
discussion between the trial court and the attorneys that took place after
the state’s rebuttal argument, along with the brief recess thereafter, under-
mines this contention.
4
The state also argues that the defendant does not satisfy the third prong
of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified by In
re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). ‘‘Under Golding, 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 magni-
tude alleging the violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional violation beyond a reason-
able doubt. . . . The first two Golding requirements involve whether the
claim is reviewable, and the second two involve whether there was constitu-
tional error requiring a new trial.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn.
466–67.
‘‘A defendant in a criminal prosecution may waive one or more of his or
her fundamental rights. . . . [I]n the usual Golding situation, the defendant
raises a claim on appeal [that], while not preserved at trial, at least was not
waived at trial. . . . [A] constitutional claim that has been waived does not
satisfy the third prong of the Golding test because, in such circumstances,
we simply cannot conclude that injustice [has been] done to either party
. . . or that the alleged constitutional violation clearly exists and clearly
deprived the defendant of a fair trial . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id., 467.
Because we find that the defendant did not waive his claim at trial, it is
not necessary for us to determine whether the defendant met this prong
of Golding.
5
The record reflects that the defendant did not preserve this sufficiency
claim for appellate review. The claim is nonetheless reviewable on appeal.
See State v. Lewis, 303 Conn. 760, 767 n.4, 36 A.3d 670 (2012) (‘‘To the
extent that the defendant’s sufficiency claims were unpreserved, we observe
that ‘any defendant found guilty on the basis of insufficient evidence has
been deprived of a constitutional right, and would therefore necessarily
meet the four prongs of [State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989)]. There being no practical significance, therefore, for engaging
in a Golding analysis of an insufficiency of the evidence claim, we will
review the defendant’s challenge to his conviction . . . as we do any prop-
erly preserved claim.’ State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d
42 (1993).’’).