State v. Elmer

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STATE v. ELMER G.—CONCURRENCE
PRESCOTT, J., concurring. I agree with and join parts
I A and II of the majority opinion. I also agree with the
result reached in part I B of the majority opinion and
generally with the reasoning contained therein, particu-
larly in light of the specific manner in which the defen-
dant, Elmer G., on appeal has challenged his conviction
of three counts of criminal violation of a restraining
order. I write separately to set forth my concerns
regarding the ambiguity created by the court, Reynolds,
J., when it issued the restraining order of which the
defendant was convicted of violating, and what I see
as an anomaly in our jurisprudence regarding the degree
of clarity that such orders must have in order to convict
a defendant of violating them.
Although the majority opinion adequately sets forth
the facts that support the defendant’s conviction of the
three counts of violating a restraining order, I neverthe-
less reiterate some of those facts that I believe deserve
emphasis. First, both the ex parte restraining order and
the later temporary restraining order identified A.N. as
the ‘‘protected person’’ and expressly prohibited the
defendant from contacting ‘‘the protected person’’ in
any manner, including having no ‘‘written, electronic
or telephone contact . . . .’’ Although the orders also
awarded temporary custody of the defendant’s minor
children to A.N., denied the defendant regular visitation
rights, and provided that the orders ‘‘also [protect] the
protected person’s minor children,’’ neither expressly
indicates that the prohibitions against written, elec-
tronic, and telephone contact with the protected person
were to apply equally to the minor children, although
such an interpretation certainly is not an unreason-
able one.
To the extent that the written temporary restraining
order was clear, the March 15, 2012 hearing on that
order created, in my view, uncertainty as to its scope.
The order, as described on the record, again identified
the protected person as A.N. There is no ambiguity
that the defendant was prohibited from contacting ‘‘the
protected person in any manner, including by written,
electronic or telephone contact . . . .’’ A review of the
transcript of the hearing further demonstrates that the
court and the parties were in agreement that the order
would constitute a no contact restraining order with
respect to A.N. The precise scope of the order with
respect to the children, however, was far less clear.
The court engaged in the following colloquy with the
victim advocate concerning the parties’ understandings
as to the scope of the restraining order:
‘‘The Court: I told you what was going to be the tenor
of my orders, and I asked you to see if you could work
out particulars just so that I don’t enter something
impractical for the parties. Were you able to do that?
‘‘The Victim Advocate: Yes, Your Honor.
‘‘The Court: Okay. Why don’t you tell me the essence
of what you’ve worked out.
‘‘The Victim Advocate: What we’ve agreed upon is
that it would be considered a no contact restraining
order.
‘‘The Court: As far as mom is concerned?
‘‘The Victim Advocate: As far as mom is concerned.
‘‘The Court: Right.
‘‘The Victim Advocate: Contact with the kids [will]
be limited to weekly supervised visits.
‘‘The Court: Contact with minor children weekly,
supervised. Yes . . . .’’
Everyone agreed that in-person contact with the chil-
dren was to be strictly limited to weekly supervised
visits. There was, however, no clear statement by the
court or the parties with respect to whether other, non-
in-person contact with the couple’s minor children,
such as letters, telephone calls, e-mails or text mes-
sages, was also prohibited by the terms of the order.
Although the court explicitly instructed the defendant
and ensured his understanding that he was not to con-
tact A.N. ‘‘in any manner,’’ that same language was never
used with respect to contact with the children.
The court’s instructions to the defendant provided
as follows: ‘‘So, with that in mind, I am going to order
a temporary restraining order. Now, as to [A.N.] and
the five children, sir, you are not to assault, threaten,
abuse, harass, follow, interfere with or stalk. You are
to stay away from the home of [A.N.], or wherever she’s
residing, and you’re not to contact her in any manner.
As far as the children are concerned, you can have
contact with your children, but for now we need it
supervised. It’s to be weekly and supervised. . . . Any
contact that you need to have with your wife, or that
your wife needs to have with you, will go through a
third party, either [S.G.] or [C.T.].’’
The defendant was charged with criminally violating
the restraining order in three ways. First, he allegedly
contacted the victim via a text message on March 28,
2012. Second, he allegedly contacted the victim by text
message on April 10, 2012. Third, he allegedly contacted
the victim by way of a written letter sometime ‘‘between
March 5, 2012, and April 10, 2012 . . . .’’ Although the
record establishes that the victim received the letter in
April, 2012, there is no direct evidence as to when the
letter was written or given to the victim’s sibling for
delivery. In other words, the third violation may have
occurred when the ex parte restraining order was in
effect.
In order to convict the defendant of violating the
restraining order, the state was obligated to prove
beyond a reasonable doubt that (1) a restraining order
was issued against the defendant, (2) the defendant had
knowledge of the terms of the order, (3) the order
protected the victim in this case, (4) the order prevented
the defendant from calling or writing to her, and (5)
the defendant wrote to and called the victim while the
order was in effect. General Statutes § 53a-223b (a) (1)
(A) and (2) (B); State v. Carter, 151 Conn. App. 527,
534–35, 95 A.3d 1201 (2014), appeal dismissed, 320
Conn. 564, 132 A.3d 729 (2016) (certification improvi-
dently granted).
The court gave the jury the following instructions
with respect to determining whether the defendant had
knowledge of the terms of the restraining order: ‘‘The
[relevant] statute . . . reads in pertinent part as fol-
lows: a person is guilty of criminal violation of a
restraining order when a restraining order has been
issued against such person and such person having
knowledge of the terms of the order contacts the person
in violation of the order.
‘‘For you to find the defendant guilty of this charge,
the state must prove the following elements beyond a
reasonable doubt: the first element is that a restraining
order has been issued against the defendant. The sec-
ond element is that the defendant had knowledge of
the terms of the order. This means that the defendant
must know of the conditions of the order. A person
acts knowingly with respect to conduct which a circum-
stance described by a statute defining an offense when
he is aware that his conduct is of such a nature or that
such circumstance exists. An act is done knowingly if
done voluntarily and purposefully, and not because of
mistake, inadvertence or accident.
‘‘Ordinarily, knowledge can be established only
through an inference from other proven facts and cir-
cumstances. The inference may be drawn if the circum-
stances are such that a reasonable person of honest
intention in this situation of the defendant would have
concluded that the defendant had knowledge of the
terms of the order. The determinative question is
whether the circumstances in the particular case form
a basis for a sound inference as to the knowledge of
the defendant in the transaction under inquiry.
‘‘The third element is that the defendant violated a
condition of the restraining order in that he contacted
a person in violation of the order.
‘‘In summary, the state must prove beyond a reason-
able doubt that a restraining order had been issued
against the defendant and that the defendant violated
a condition of that order.’’
The defendant claims on appeal that there was insuffi-
he violated either the ex parte restraining order or the
temporary restraining order issued to him on March 15,
2012. Specifically, he contends that the evidence was
insufficient because it did not establish beyond a rea-
sonable doubt that the orders protected the victim in
this case, and that, even if they did, he knew that they
prevented him from text messaging or writing to the
victim while in effect.
Because the defendant chose to raise his challenge
to his conviction in this manner, we are constrained by
the well-worn standard for reviewing the sufficiency of
the evidence. Under that standard, which requires us
to construe all of the evidence in a light most favorable
to sustaining the verdict; State v. Carter, supra, 151
Conn. App. 533; I agree with the majority that there
was sufficient evidence, including the reasonable infer-
ences to be drawn therefrom, to establish that the defen-
dant believed that the temporary restraining order
prevented him from text messaging or writing to the
victim. In other words, even if the temporary restraining
order and the court’s explanation of it, taken together,
created an ambiguity regarding whether the defendant
was permitted to text message or write to the victim
while the order was in effect, the jury appears to have
resolved that ambiguity in favor of the state by conclud-
ing that he had had knowledge of the terms of the order.
In several related contexts, however, we require that
a court order be sufficiently clear and unambiguous as
a matter of law before a litigant is held responsible for
violating it. This requirement is particularly important
in circumstances in which the conduct that is said to
violate the order is otherwise noncriminal conduct. See
State v. Boseman, 87 Conn. App. 9, 17, 863 A.2d 704
(2004), cert. denied, 272 Conn. 923, 867 A.2d 838 (2005).
For example, motions for contempt in civil cases
may not be granted unless the court order the litigant
allegedly violated is clear and unambiguous as a matter
of law. As our Supreme Court has stated: ‘‘[O]ur analysis
of a judgment of contempt consists of two levels of
inquiry. First, we must resolve the threshold question
of whether the underlying order constituted a court
order that was sufficiently clear and unambiguous so
as to support a judgment of contempt. See Blaydes v.
Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982) (civil
contempt may be founded only upon clear and unambig-
uous court order); Dowd v. Dowd, 96 Conn. App. 75,
79, 899 A.2d 76 (first inquiry on review of judgment of
contempt for failure to abide by separation agreement
was whether agreement was clear and unambiguous),
cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). This is
a legal inquiry subject to de novo review. See In re
Jeffrey C., [261 Conn. 189, 194–97, 802 A.2d 772 (2002)]
(conducting, but not specifying, de novo review of
whether failure to follow supplemental orders could
result in finding of contempt); Baldwin v. Miles, 58
Conn. 496, 501–502, 20 A. 618 (1890) (conducting, but
not specifying, de novo review of whether injunction’s
language was too vague and indefinite so as to support
judgment of contempt); see also Perez v. Danbury Hos-
pital, 347 F.3d 419, 423–25 (2d Cir. 2003) (reviewing de
novo district court’s determination that consent decree
on which judgment of contempt was based was clear
and unambiguous).’’ In re Leah S., 284 Conn. 685, 693,
935 A.2d 1021 (2007).
We have imposed similar requirements in violation
of probation proceedings. In State v. Boseman, supra,
87 Conn. App. 16, this court held that conditions of
probation, as a matter of law, must be sufficiently clear
so as to provide a probationer fair warning of the con-
duct proscribed: ‘‘The claim that the defendant lacked
sufficient notice concerning this condition presents a
question of law over which our review is plenary. . . .
[T]he interpretation of a probation condition and
whether it affords a probationer fair warning of the
conduct proscribed thereby are essentially matters of
law and, therefore, give rise to de novo review on
appeal.’’ (Citation omitted; internal quotation marks
omitted.) Id.
In Boseman, the defendant was charged with vio-
lating his probation on the ground that, by dropping
off a new lunch box for his son at the home where the
child lived with his mother, he had violated a condition
of probation that he have no contact with the mother
of his child. This court emphasized in Boseman that
‘‘[w]here noncriminal activity forms the basis for the
revocation of probation, due process requires specific
knowledge that the behavior involved is proscribed.
[W]here the proscribed acts are not criminal, due pro-
cess mandates that the [probationer] cannot be sub-
ject[ed] to a forfeiture of his liberty for those acts unless
he is given prior fair warning.’’ (Internal quotation
marks omitted.) Id., 17.
Finally, criminal statutes themselves must ‘‘provide
fair notice of the conduct to which they pertain . . . .
[W]e insist that laws give [a] person of ordinary intelli-
gence a reasonable opportunity to know what is prohib-
ited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. . . .
[A] law forbidding or requiring conduct in terms so
vague that men of common intelligence must necessar-
ily guess at its meaning and differ as to its application
violates due process of law.’’ (Citation omitted; internal
quotation marks omitted.) State v. Indrisano, 228 Conn.
795, 802, 640 A.2d 986 (1994). Whether a criminal statute
is unconstitutionally vague is a question of law to be
decided by the court. State v. Winot, 294 Conn. 753,
758–59, 988 A.2d 188 (2010).
My research, however, has not revealed any authori-
ties that discuss, with respect to prosecutions for viola-
tions of a protective order or a temporary restraining
order, whether such an order must have the same
degree of clarity and unambiguity that must exist for
the enforcement of civil orders, probation conditions
and our criminal statutes. Instead, this issue seems to
be addressed solely as a factual question for the finder
of fact as part of its determination regarding whether
the defendant had ‘‘knowledge of the terms of the order
. . . .’’ General Statutes § 53a-223b (a) (2).
In sum, I have serious concerns regarding whether
the temporary restraining order in this case, as
explained to the defendant by the court, was sufficiently
clear and unambiguous as a matter of law that the
defendant should suffer a loss of liberty for violating
it. This is particularly true in light of the fact that the
conduct underlying his conviction was otherwise non-
criminal conduct but for the existence of the restraining
order. Indeed, if this same order was sought to be
enforced by way of civil contempt in a family matter,
I would have serious doubt about whether it would
pass the threshold showing that it was clear and unam-
biguous under the particular circumstances of this case.
Nevertheless, I conclude that the defendant’s convic-
tion must be affirmed for several reasons. First, the
defendant never moved to dismiss the counts of the
information on the ground that they were insufficient
as a matter of law and thus should not be submitted
to the jury for its consideration. See Practice Book § 41-
8. Second, the defendant has not argued on appeal that,
as a matter of law, the restraining orders lacked suffi-
cient clarity and thus could not be enforced under the
circumstances of this case. Finally, the defendant did
not submit any particular request to charge that would
seek even a jury determination regarding the question
of whether the restraining orders were sufficiently clear
and unambiguous. Instead, the defendant was content
to have the jury decide, as a factual question, whether
he had knowledge of the terms of the orders.
The jury resolved this question in favor of the state.
On appeal, the defendant challenges the sufficiency of
the evidence as it relates to that question. In light of
our standard of review, I am obligated to affirm the
defendant’s conviction on those counts.