State v. Thomas S. ( 2023 )

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STATE OF CONNECTICUT v. THOMAS S.*
(AC 45104)
Prescott, Clark and Bear, Js.**
Syllabus
Convicted, after a jury trial, of criminal violation of a protective order and
of being a persistent serious felony offender, the defendant appealed
to this court. The trial court issued the protective order prohibiting the
defendant from contacting P, an individual with whom he had previously
been in a relationship, following his arrest on various charges for inci-
dents involving P. The protective order specifically prevented the defen-
dant from contacting P’s home or her workplace, which was a liquor
store that she owned. The order did, however, permit the defendant to
return to P’s home one time, with a police escort, to retrieve his belong-
ings. P moved the defendant’s belongings to the liquor store and instead
attempted to arrange for one of the defendant’s family members to pick
them up. Thereafter, the defendant contacted the local police department
and requested a police escort to accompany him to the liquor store so
that he could retrieve his belongings. The defendant arrived at the liquor
store prior to the police escort. He entered the store and immediately
turned off a security camera. He then took money out of the register,
cigarettes from behind the register, and tools from a back room. He
also took bottles of alcohol off the shelves and placed them into multiple
bins. P was not at the store at this time and the defendant told R, P’s
employee, not to contact her or to try and stop him from removing the
items he had collected. When the police escort arrived, the officer helped
the defendant load the items into the vehicle in which the defendant
had arrived, unaware that there was a criminal protective order in place.
The defendant then left the liquor store. Shortly thereafter, P arrived at
the store and was greeted by the police officer, who testified that P
appeared to be angry and there was fear in her face and in her voice.
P became very upset after entering the store and discovering the items
that had been taken. She informed the police officer that everything that
the defendant had taken, other than the box of his personal belongings,
belonged to her. The police officer then called the defendant and
instructed him to have a third party return the items to the liquor store.
With the exception of one bottle of alcohol and a few packs of cigarettes,
the items were returned. Held that there was sufficient evidence from
which the jury reasonably could have found beyond a reasonable doubt
that the defendant was guilty of violating the protective order: although
the effective information charged the defendant with only one count of
criminal violation of a protective order and the evidence presented at
trial supported multiple, separate incidents of conduct in violation of
the protective order, this court was not required to address whether a
unanimity issue existed because the defendant did not raise such a claim
at trial or in his appellate brief, nor did he ask this court to review
the unpreserved claim pursuant to State v. Golding (213 Conn. 233);
moreover, contrary to the defendant’s argument that he had complied
with the protective order and did not voluntarily go to the liquor store
because he necessarily had to go there to retrieve his belongings, there
was sufficient evidence from which the jury reasonably could have
found that the defendant was guilty of violating the protective order
because he deliberately went to P’s workplace, as criminal violation of
a protective order is a general intent crime, and, accordingly, it was not
necessary for the state to prove that the defendant knew that his conduct
violated the protective order or to disprove his alleged subjective belief
that his conduct did not violate the protective order; furthermore, there
was sufficient evidence from which the jury reasonably could have
found that the defendant was guilty of violating the protective order
because he deliberately had contact with R in a manner likely to cause
annoyance or alarm to P, as the jury reasonably could have found that
the defendant, while in the presence of R, took items from the liquor
store after turning off the store’s security camera and, in a confronta-
tional manner, warned R not to call P, contact that could cause P to fear
that the defendant would continue to act in an angry and confrontational
manner toward her and others associated with her.
Argued September 7—officially released October 31, 2023
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of criminal viola-
tion of a protective order and larceny in the sixth
degree, and, in the second part, with being a persistent
serious felony offender, brought to the Superior Court
in the judicial district of Danbury, geographical area
number three, where the first part of the information
was tried to the jury before D’Andrea, J.; verdict of
guilty of criminal violation of a protective order; there-
after, the court, D’Andrea, J., declared a mistrial as to
the charge of larceny in the sixth degree, and the state
entered a nolle prosequi as to that charge; subsequently,
the second part of the information was tried to the jury
before D’Andrea, J.; verdict of guilty; thereafter, the
court, D’Andrea, J., rendered judgment in accordance
with the verdicts, from which the defendant appealed
to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
Brett R. Aiello, assistant state’s attorney, with whom,
on the brief, were David R. Applegate, state’s attorney,
and Kristin Chiriatti, assistant state’s attorney, for the
appellee (state).
Opinion
PRESCOTT, J. The defendant, Thomas S., appeals
from the judgment of conviction, rendered following a
jury trial, of criminal violation of a protective order in
violation of General Statutes § 53a-223.1 On appeal, the
defendant claims that the evidence was insufficient to
prove beyond a reasonable doubt that he had the requi-
site intent to violate the protective order. We affirm the
judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are pertinent to this
appeal. On January 28, 2019, the trial court issued a
criminal protective order identifying P, a person for-
mally romantically involved with the defendant, as the
protected person and the defendant as the respondent.
The protective order instructed the defendant to ‘‘not
assault, threaten, abuse, harass, follow, interfere with,
or stalk the protected person’’; to ‘‘[s]tay away from
the home of the protected person and wherever the
protected person shall reside’’; and to ‘‘not contact the
protected person in any manner, including by written,
electronic or telephone contact, and [to] not contact
the protected person’s home, workplace or others with
whom the contact would be likely to cause annoyance
or alarm to the protected person.’’ Additionally, the
order permitted the defendant to ‘‘return to [P’s] home
one time with police to retrieve [his] belongings.’’
Prior to the issuance of the protective order, the
defendant and P lived together in a home owned by P.
P worked at a liquor store in Fairfield County (liquor
store) that she owned.2 The relationship between the
defendant and P eventually began to deteriorate. The
defendant became abusive toward P, including inci-
dents in which he was verbally abusive, intimidated P,
and broke P’s belongings. As a result of these incidents,
P filed an application for an ex parte restraining order
against the defendant in family court, which was
granted on January 25, 2019.
The defendant subsequently was arrested for threat-
ening in the second degree and criminal violation of a
restraining order after threatening to kill P following
the issuance of the ex parte restraining order. As a
result of this arrest, the court issued the criminal protec-
tive order now at issue. As previously discussed,
although the protective order ordered the defendant to
stay away from P’s home, it permitted him to visit her
home once with a police escort in order to collect his
personal belongings. P instead tried to arrange for the
defendant’s father or sister to pick up the defendant’s
personal belongings from the liquor store.3
On February 5, 2019, at around 4 p.m., the defendant
contacted the local police department (department) to
arrange for a police escort to accompany him to the
liquor store to pick up his personal belongings.4 Ser-
geant Chris McManus received the dispatch assigning
him to escort the defendant into the liquor store. Pursu-
ant to department protocol, he first conducted a records
search to determine whether there were any pertinent
protective orders issued against the defendant.
Although McManus discovered the ex parte civil
restraining order through this search, McManus did not
discover the criminal protective order against the defen-
dant.5
The defendant and a friend drove to the liquor store
in a pickup truck. On arrival, rather than wait for the
police escort to arrive, the defendant entered the busi-
ness alone. P was not present at the liquor store when
the defendant arrived. R, an employee of the liquor
store, observed the defendant turn off the inside secu-
rity camera immediately after the defendant entered
the store. The defendant then proceeded to take money
from the cash register, while telling R not to call P and
not to try to stop him. Additionally, the defendant took
several packs of cigarettes from behind the register and
tools from the back room of the store. R felt ‘‘nervous,’’
‘‘cornered,’’ ‘‘scared,’’ and ‘‘panick[ed],’’ and ‘‘froze’’
upon being confronted by the defendant. The defendant
then began to fill several empty bins with bottles of
alcohol from the liquor store’s shelves. The defendant
appeared aggressive and angry as he did so. A man
who worked next door entered the liquor store, and R
signaled for him to call P and inform her about what
was happening.
Shortly thereafter, McManus arrived at the liquor
store. After McManus entered the liquor store, the
defendant began to load his personal belongings, the
bins containing the bottles of alcohol,6 the packs of
cigarettes and the tools taken from the back room of the
liquor store into the pickup truck. Both R and McManus
aided the defendant in loading the truck.7 R then
received a call from P, who told him that she was on
her way back to the store. When McManus learned that
P was on her way back to the liquor store, he instructed
the defendant to finish loading the items quickly and
leave before P returned.
After the defendant left the liquor store parking lot,
P arrived. When McManus greeted P in her car upon her
arrival, she appeared very ‘‘angry,’’ ‘‘upset,’’ ‘‘annoyed,’’
and ‘‘alarmed,’’ and ‘‘there was fear in her face and in
her voice.’’ P then entered the store and, after seeing
what had been taken, dropped to her knees crying.
Because R appeared ‘‘shaken’’ and ‘‘traumatized’’ to P,
she sent him home. After assessing the store’s inventory
and confirming what the defendant had taken, P
informed McManus that everything that the defendant
had taken, except the box of his personal belongings,
belonged to her.
McManus called the defendant to direct him to return
the items he had taken. McManus eventually was able
to arrange for the return of most of the items taken,
except for a partially empty bottle of alcohol and several
packs of cigarettes. At McManus’ direction, a third
party, the driver of the pickup truck, rather than the
defendant, returned the remaining items to the liquor
store.
The defendant was arrested and charged with larceny
in the sixth degree on March 7, 2019. After the defen-
dant’s arrest, the state filed several substitute informa-
tions adding the additional charges of burglary in the
third degree, criminal trespass in the second degree,
and criminal violation of a protective order.8 The trial
began on February 11, 2020. At trial, the state argued
that the defendant had violated the protective order by
deliberately going to P’s workplace and by deliberately
confronting P’s employee in a manner likely to cause
annoyance or alarm to P. In response, the defendant,
who was self-represented, alleged that he acted with
the intent to comply with the protective order. On Feb-
ruary 28, 2020, the jury found the defendant guilty of
criminal violation of a protective order.9 On December
3, 2020, the trial court, D’Andrea, J., sentenced the
defendant to eight years of incarceration, followed by
two years of special parole. This appeal followed.
I
The defendant claims on appeal that his conviction of
criminal violation of a protective order must be reversed
because the state failed to present sufficient evidence
to prove beyond a reasonable doubt that the defendant
had the necessary intent to violate the protective order.
We are not persuaded.
Before we turn to the defendant’s claim, we first
address a potential issue resulting from the manner in
which the state drafted the operative information. The
protective order prohibits the defendant from ‘‘con-
tact[ing] the protected person’s home, workplace or
others with whom the contact would be likely to cause
annoyance or alarm to the protected person.’’ (Empha-
sis added.) In the long form information, however, the
state charged the defendant with violating the protec-
tive order ‘‘[b]y going to [P’s], the protected person’s,
workplace and, thereat, creat[ing] contact likely to
cause annoyance and alarm to said protected person,
in violation of . . . § 53a-223.’’ (Emphasis added.)
Although the information charges the defendant with
only one count of criminal violation of a protective
order in violation of § 53a-223, the evidence presented
at trial in this case supports multiple, separate incidents
of conduct in violation of the protective order. At trial,
the state argued to the jury that the defendant had
violated the protective order (1) by going to P’s work-
place and (2) by contacting another person, R, because
such contact with him would be likely to cause annoy-
ance or alarm to P. The court gave the jury the following
instructions: ‘‘The defendant is charged with violating
the provision [of the protective order] that states, do
not contact the protected person’s workplace or others
with whom the contact would be likely to cause annoy-
ance or alarm to the protected person.’’ (Emphasis
added.) No specific unanimity instructions were given
to the jury.10
Our Supreme Court has held that ‘‘a single count of
an information that charges a defendant with a single
statutory violation is duplicitous when evidence at trial
supports multiple, separate incidents of conduct, each
of which could independently establish a violation of
the charged statute.’’ State v. Joseph V., 345 Conn. 516,
521, 285 A.3d 1018 (2022), citing State v. Douglas C.,
345 Conn. 421, 445–47, 285 A.3d 1067 (2022). ‘‘In the
absence of a specific unanimity instruction to the jury
. . . such a count violates a defendant’s constitutional
right to jury unanimity and requires the reversal of the
judgment of conviction if it creates the risk that the
defendant’s conviction occurred as the result of differ-
ent jurors concluding that the defendant committed
different criminal acts.’’ State v. Joseph V., supra, 521.
We need not address whether a unanimity issue
exists, however, because the defendant did not raise a
unanimity claim at trial11 or in his appellate brief, nor
has he asked us to review such an unpreserved claim
pursuant to 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).12 We turn now to
the defendant’s sufficiency of the evidence claim.
II
As previously noted, § 53a-223 (a) provides in rele-
vant part that ‘‘[a] person is guilty of criminal violation
of a protective order when an order . . . has been
issued against such person, and such person violates
such order.’’ The defendant does not dispute that a
protective order had been issued against him. Rather,
the defendant claims that the evidence before the jury
was insufficient to prove that he had the requisite intent
to violate the protective order. With respect to this
claim, the defendant makes two arguments. First, the
defendant asserts that the state adduced insufficient
evidence that the defendant, by going to the liquor store,
intended to engage in conduct that violated the protec-
tive order. Second, the defendant argues that the state
adduced insufficient evidence that the defendant
intended to engage in contact likely to cause annoyance
or alarm to the protected person. In response, the state
argues that there was ample evidence from which the
jury reasonably could have found that the defendant
was guilty of violating the protective order by (1) delib-
erately going to P’s workplace and (2) deliberately con-
tacting P’s employee in a manner likely to cause annoy-
ance or alarm to P. We agree with the state.
We begin our analysis by setting forth the relevant
legal principles and standard of review. ‘‘The standard
of review we apply to a claim of insufficient evidence
is well established. In reviewing the sufficiency 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 construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘We also note that the jury 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 conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
‘‘Additionally, [a]s we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the [finder of fact], would have
resulted in an acquittal. . . . On appeal, we do not ask
whether there is a reasonable view of the evidence that
would support a reasonable 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 quotation marks omitted.) State v.
Taupier, 330 Conn. 149, 186–87, 193 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202(2019).
‘‘[T]he violation of a protective order statute is not
a specific intent crime.’’ (Internal quotation marks omit-
ted.) State v. Cheryl J., 203 Conn. App. 742, 748, 249
A.3d 742 (2021). Rather, violation of a protective order
is a crime requiring proof of general intent. See id.‘‘General intent is the term used to define the requisite
mens rea for a crime that has no stated mens rea; the
term refers to whether a defendant intended deliberate,
conscious or purposeful action, as opposed to causing
a prohibited result through accident, mistake, care-
lessness, or absent-mindedness. Where a particular
crime requires only a showing of general intent, the
prosecution need not establish that the accused
intended the precise harm or precise result which
resulted from his acts.’’ (Internal quotation marks omit-
ted.) State v. Nowacki, 155 Conn. App. 758, 766, 111
A.3d 911 (2015). ‘‘All that is necessary is a general intent
that one intend to perform the activities that constitute
the violation.’’ (Internal quotation marks omitted.) State
v. Cheryl J., supra, 748.
A
We first address the defendant’s argument that there
was insufficient evidence to prove that the defendant
intended to engage in conduct that violated the protec-
tive order. The defendant argues that the evidence pre-
sented at trial showed that he lacked the requisite intent
to contact P’s workplace. The defendant argues
throughout his principal appellate brief and at oral argu-
ment before this court that he intended to comply with
the protective order by going to P’s workplace and that
he did not go to P’s workplace voluntarily. He argues
that he did not voluntarily go to P’s workplace because,
after P moved his belongings from her home to the
store, he was unable to retrieve his belongings any other
way. He concludes that, because the protective order
permitted him to enter P’s home one time, with a police
escort, to retrieve his personal belongings and because
he necessarily had to go to the liquor store to retrieve
his belongings after they were moved, he complied with
the protective order and did not voluntarily go to the
liquor store.
In this argument, the defendant conflates voluntari-
ness with necessity. In so arguing, the defendant mis-
construes what is required to find a violation of the
protective order. Criminal violation of a protective
order is a general intent, rather than a specific intent,
crime. Id. For a general intent crime, an action is volun-
tary when the actor deliberately, consciously, or pur-
posefully takes that action, regardless of the actor’s
subjective intent. See State v. Nowacki, supra, 155
Conn. App. 766. Therefore, the defendant’s subjective
intent in going to the liquor store and his perceived
necessity of this action does not make his otherwise
deliberate, conscious, and purposeful act of going to
the liquor store involuntary. Moreover, it was not neces-
sary for the state to prove that the defendant knew that
his conduct violated the protective order or to disprove
the defendant’s alleged subjective belief that his con-
duct did not violate the protective order. State v. Winter,
117 Conn. App. 493, 508, 979 A.2d 608 (2009), cert.
denied, 295 Conn. 922, 991 A.2d 569 (2010). On the basis
of our review of the record, we conclude that there
was sufficient evidence from which the jury reasonably
could have found that the defendant intended to engage
in conduct prohibited by the protective order.
The protective order instructed the defendant ‘‘[to]
not contact the protected person’s . . . workplace
. . . .’’ The jury was presented with evidence that the
liquor store was P’s workplace. The jury also was pre-
sented with evidence that the defendant had a friend
drive him to the liquor store and that he entered the
liquor store without waiting for the police escort to
arrive. Therefore, a reasonable view of the evidence
presented at trial supports the inference that the defen-
dant intentionally contacted P’s workplace by entering
the liquor store, thereby violating the condition of the
protective order ordering the defendant not to contact
P’s workplace. Moreover, the defendant’s counsel con-
ceded during oral argument before this court that the
defendant intended to go to the liquor store.
Viewing the record in the light most favorable to
sustaining the verdict, we conclude that there was suffi-
cient evidence from which the jury reasonably could
have found beyond a reasonable doubt that the defen-
dant had the intent to enter P’s workplace and, there-
fore, had the requisite general intent to perform an
activity in violation of the protective order. The defen-
dant’s claim to the contrary fails.
B
We next address the defendant’s second sufficiency
of the evidence argument, namely, that there was insuf-
ficient evidence of his intent to contact others in a
manner likely to cause annoyance or alarm to P. He
argues that the record reflects that he had the general
intent to engage in contact that was either in compliance
with the protective order or that was meant to avoid
any potential violations of the protective order.13 Again,
the defendant’s argument is unavailing.
The protective order prohibited the defendant from
contacting others in a manner likely to cause annoyance
or alarm to P. The jury reasonably could have found
that the defendant took money, bottles of liquor, ciga-
rettes and tools from the liquor store, in R’s presence,
after turning off the security camera and that the defen-
dant, in a confrontational manner, warned R not to call
P.14 From this, the jury reasonably could have inferred
that the defendant intentionally contacted R.
The jury also reasonably could have found from the
evidence admitted at trial that the defendant’s contact
with R was likely to cause annoyance or alarm to P.
Although the defendant argues that the evidence shows
that he contacted R in a manner likely to avoid annoy-
ance or alarm to P, arguing that he turned off the secu-
rity camera and directed R not to call P in order not
to annoy or alarm her, the jury was not required to
accept his version of events or draw the inferences he
urges this court to adopt. The jury reasonably could
have found from the evidence presented that the defen-
dant contacted P’s employee, R, at P’s liquor store in
a confrontational and angry manner as he took money
and inventory from the store. Taken cumulatively, par-
ticularly in light of the defendant first turning off the
security camera, the jury reasonably could have found
that the defendant’s confrontational contact with P’s
employee could cause P to fear that the defendant
would continue to act in an angry and confrontational
manner toward her and others associated with her.
Therefore, the jury reasonably could have found that
such contact would be likely to cause P annoyance
or alarm.
Additionally, the record reflects that the defendant’s
contact with R left R feeling ‘‘nervous,’’ ‘‘cornered,’’
‘‘scared,’’ and ‘‘panick[ed],’’ and that he ‘‘froze’’ upon
being confronted by the defendant. The jury reasonably
could have found that finding her employee in such a
state was likely to cause P annoyance or alarm.
In summary, we conclude that there was sufficient
evidence from which the jury reasonably could have
found beyond a reasonable doubt that the defendant
had the requisite intent to enter the liquor store, interact
with P’s employee in a confrontational manner and take
items, including bottles of liquor, packs of cigarettes
and tools, all of which together constitute contact likely
to cause annoyance or alarm to P in violation of the
protective order. Accordingly, the defendant’s suffi-
ciency of the evidence claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-223 (a) provides in relevant part: ‘‘A person is
guilty of criminal violation of a protective order when an order . . . has
been issued against such person, and such person violates such order.’’
2
During their relationship, the defendant convinced P to purchase two
liquor stores, including the one in Fairfield County. After purchasing the
Fairfield County liquor store, P began working there every day and assumed
the daily operations of the business.
3
On appeal, the defendant argues that by moving his belongings from her
home to the liquor store, P ‘‘modified’’ the protective order. The defendant’s
argument amounts to a contention that P consented to him entering her
workplace because, by moving his belongings, he was unable to go to P’s
home to retrieve his belongings with a police escort and instead could
retrieve his belongings only by going to P’s workplace. We summarily reject
this assertion. A criminal protective order is issued by the court following
consideration of all of the relevant considerations and does not depend on
the consent of the protected person. See, e.g., State v. Riggsbee, 112 Conn.
App. 787, 792 n.2, 963 A.2d 1122 (2009) (noting that criminal protective
orders are issued to promote public peace, as well as to protect victim, and
that, as such, protective orders are often issued against express wishes of
victim). Because it is a court order, the defendant is bound by its terms
unless he seeks and obtains relief from it by the court. See State v. Fernando
A., 294 Conn. 1, 29–31, 981 A.2d 427 (2009) (detailing procedures to challenge
necessity for criminal protective order). Thus, a defendant who does not
comply with the conditions of a protective order violates the order, even
if the violation occurs as a result of the protected person’s consent or in
accordance with the protected person’s wishes. See State v. Winter, 117
Conn. App. 493, 501, 979 A.2d 608 (2009) (‘‘[a]n order issued by a court of
competent jurisdiction must be obeyed by the parties until it is reversed by
orderly and proper proceedings’’ (internal quotation marks omitted)), cert.
denied, 295 Conn. 922, 991 A.2d 569 (2010).
4
The criminal protective order issued on January 28, 2019, was still in
effect on this date.
5
The record does not reflect the reason why the department did not
discover the criminal protective order.
6
The defendant covered the bins with lids when McManus arrived. McManus
was not aware that the covered bins contained alcohol until after the defen-
dant had left the liquor store.
7
R helped the defendant load the items into the truck because he ‘‘didn’t
want to escalate the situation and make it any . . . worse.’’ McManus ‘‘had
no reason to think that [he] was being deceived, so [he] gave [the defendant]
a hand [loading the items into the truck]’’; he would not have helped the
defendant if he had known that the items taken did not belong to the
defendant.
8
The state eventually dropped the burglary and trespass charges. The
operative information before the jury was filed on February 28, 2020, and
charged the defendant with one count of criminal violation of a protective
order in violation of § 53a-223, and one count of larceny in the sixth degree
in violation of General Statutes § 53a-125b. Additionally, the state charged
the defendant with being a persistent serious felony offender in violation
of General Statutes § 53a-40 (c), by way of a part B information dated
January 16, 2020.
9
The jury was unable to reach a unanimous verdict on the larceny charge,
and, therefore, the trial court, D’Andrea, J., declared a mistrial as to that
count. Evidence on the part B information was presented to the same jury
on March 3, 2020, and the jury found the defendant guilty of being a persistent
serious felony offender in violation of General Statutes § 53a-40 (c).
10
When instructing the jury, the trial court included only a general unanim-
ity charge: ‘‘If you unanimously find that the state has proved beyond a
reasonable doubt each of the elements of the crime of criminal violation
of a protective order, then you shall find the defendant guilty. On the other
hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall find the defendant not
guilty.’’
11
We note that the decisions in State v. Joseph V., supra, 345 Conn. 516,
and its companion case, State v. Douglas C., supra, 345 Conn. 421, were
released after the underlying trial in the present case.
12
At oral argument before this court, counsel for the defendant stated
that ‘‘[he had] not addressed a unanimity issue,’’ that the issue of unanimity
was ‘‘not something that’s before the court,’’ and that the defendant had
not objected to the jury instructions given by the trial court.
In State v. Golding, supra, 213 Conn. 239–40, this court held that ‘‘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. In the absence of any one of these conditions, the defendant’s
claim will fail.’’ (Emphasis in original; footnote omitted.)
13
The defendant argues that his conduct in the liquor store, including
taking the tools and the bottles of liquor, was influenced by his mistaken
or accidental belief that he had an ownership interest in the items. Again,
the defendant’s subjective belief in his right to engage in this conduct is
immaterial to our inquiry. Rather, we ask whether the defendant intention-
ally, that is, deliberately, consciously, or purposefully, contacted others with
whom the contact would be likely to cause annoyance or alarm to P and
whether this contact was likely to cause P annoyance or alarm.
14
R testified that, when he attempted to call P, the defendant told him,
‘‘don’t you fucking call [P], [R].’’