State v. Acker

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STATE OF CONNECTICUT v. FREDERICK ACKER
(AC 38285)
Beach, Sheldon and Gruendel, Js.
Submitted on briefs May 9—officially released June 21, 2016
(Appeal from Superior Court, judicial district of
Litchfield, geographical area number eighteen, Hon.
Charles D. Gill, judge trial referee.)
Steven A. Colarossi filed a brief for the appellant
(defendant).
David S. Shepack, state’s attorney, Jonathan Knight,
senior assistant state’s attorney, and Gregory L. Bor-
relli, deputy assistant state’s attorney, filed a brief for
the appellee (state).
Opinion
PER CURIAM. The defendant, Frederick Acker,
appeals from the judgment of the trial court finding
him in violation of his probation pursuant to General
Statutes § 53a-32. The defendant contends, inter alia,
that the evidence adduced at trial was insufficient to
establish that violation.1 On appeal, the state agrees.
We reverse the judgment of the trial court.
In 2013, the defendant was charged by long form
information with numerous counts of animal cruelty in
violation of General Statutes § 53-247 (a). Following a
court trial, the defendant was found guilty of fifteen
such counts. On January 23, 2014, the court sentenced
the defendant to a total effective sentence of six months
incarceration, execution suspended, with two years of
probation. Among the special conditions of probation
entered at that time was the requirement that ‘‘[i]f you
attempt to operate any animal rescue operation you
shall not confine any animal in any facility that has not
first been inspected and approved by the animal control
officer for the jurisdiction where the shelter is located.’’
On March 12, 2015, probation officer David K. Maus
inspected the premises of 359 Spring Hill Road in Mon-
roe (property). An animal shelter known as The Society
for the Prevention of Cruelty to Animals of Connecticut
(shelter) was located on the property. The defendant
lived on the property and volunteered at the shelter. In
his application for an arrest warrant, Maus averred that
he and ‘‘Chief Probation Officer Peter Bunosso con-
ducted a home visit to the [property]. [The defendant]
was not available at the time and a staff member accom-
panied [us] on a detailed inspection. According to the
staff member and [the town of Monroe] Animal Control
Officer, [the defendant] is only allowed to have 29 dogs
on his property. During the inspection 47 dogs were
located. Also located in the inspection were several
areas of [concern] including . . . broken shelters (roof
over the dog cage) and cages that appeared too small for
the dogs.’’ Maus therefore opined that ‘‘there is probable
cause to issue an arrest warrant charging [the defen-
dant] with [v]iolation of [p]robation.’’ An arrest warrant
subsequently was issued.
The court held a hearing on the violation of probation
charge on August 21, 2015. At the close of the eviden-
tiary phase of that proceeding; see State v. Maurice M.,
303 Conn. 18, 25–26, 31 A.3d 1063 (2011); the court
found that the defendant had failed to comply with
the condition of his probation prohibiting him from
confining ‘‘any animal in any facility that has not first
been inspected and approved by the animal control
officer for the jurisdiction where the shelter is located.’’
In the dispositional phase of the proceeding, the court
revoked the defendant’s probation and sentenced him
to a term of six months incarceration. From that judg-
ment, the defendant now appeals.
On appeal, the defendant maintains that the evidence
was insufficient to support the court’s finding that he
violated the terms of his probation. ‘‘The law governing
the standard of proof for a violation of probation is
well settled. . . . [A]ll that is required in a probation
violation proceeding is enough to satisfy the court
within its sound judicial discretion that the probationer
has not met the terms of his probation. . . . It is also
well settled that a trial court may not find a violation
of probation unless it finds that the predicate facts
underlying the violation have been established by a
preponderance of the evidence at the hearing—that is,
the evidence must induce a reasonable belief that it is
more probable than not that the defendant has violated
a condition of his or her probation. . . . In making its
factual determination, the trial court is entitled to draw
reasonable and logical inferences from the evidence.
. . . Accordingly, [a] challenge to the sufficiency of the
evidence is based on the court’s factual findings. The
proper standard of review is whether the court’s find-
ings were clearly erroneous based on the evidence. . . .
A court’s finding of fact is clearly erroneous and its
conclusions drawn from that finding lack sufficient evi-
dence when there is no evidence in the record to sup-
port [the court’s finding of fact] . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’’ (Inter-
nal quotation marks omitted.) State v. Maurice M.,
supra, 303 Conn. 26–27.
At the revocation proceeding, the state offered the
testimony of Maus and Bunosso, the probation officers
who visited the property on March 12, 2015. As the state
notes in its appellate brief, ‘‘neither probation officer
for the state testified that the shelter was not first
inspected and approved by an animal control officer
for the jurisdiction.’’ We have reviewed the record and
concur with the state’s assessment that it contains ‘‘no
evidence . . . by the state to establish that an animal
control officer for the jurisdiction had not first
inspected the [shelter] prior to the defendant returning
to work as a volunteer.’’2 (Emphasis omitted.) We there-
fore conclude that there is no evidence to substantiate
a finding that the defendant violated the condition of his
probation prohibiting him from confining ‘‘any animal in
any facility that has not first been inspected and
approved by the animal control officer for the jurisdic-
tion where the shelter is located.’’ Because that finding
is clearly erroneous, the revocation of the defendant’s
probation cannot stand.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
1
The defendant also alleges a due process violation. Because we conclude
that the evidence is insufficient to establish a violation of the terms of the
defendant’s probation, we do not consider that claim.
2
Indeed, the defendant presented evidence suggesting otherwise. He
offered the testimony of Susan Fernandez, the director of the shelter, who
stated that the shelter was ‘‘in compliance’’ and had not received any notices
of violations from the animal control officer or zoning authorities. The
defendant also offered the testimony of Edward Risko, the animal control
officer for the town of Monroe. Risko testified that neither he nor ‘‘anyone
with similar jurisdiction in Monroe’’ had issued any violation notices with
respect to the shelter since the time that the defendant’s conditions of
probation were entered. As the state acknowledged in its appellate brief, that
evidence ‘‘supports the inference that the shelter had . . . been approved to
operate . . . .’’ (Emphasis omitted.)