author: BISHOP, J. LAVINE, J.,

text:
    STATE OF CONNECTICUT v. KEVIN M. BOYLE
    (AC 28157)
    Bishop, McLachlan and Lavine, Js.
    Argued April 17
    officially released July 17, 2007

      Martin Zeldis, public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis J. Luba, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Kevin M. Boyle, appeals from the modification of the conditions of his probation resulting in the imposition of a special condition that he claims is unrelated to the offense for which he is serving probation. Because there is no nexus between the modified condition and the charge for which the defendant is serving probation, we reverse the judgment of the trial court.

The following factual and procedural history is relevant to the consideration of the defendant’s appeal. On August 24, 2005, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a and failure to drive in the proper lane in violation of General Statutes § 14-236. The defendant entered into a plea agreement and pleaded guilty to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs. On April 5, 2006, pursuant to the plea agreement, the court sentenced the defendant to six months incarceration, execution suspended after thirty days, with eighteen months probation. The court also imposed conditions of probation that the defendant (1) participate in substance abuse evaluation, as well as testing, treatment or both, (2) participate in a victim impact panel, (3) not operate a motor vehicle without a valid driver’s license, registration or insurance and (4) participate in 150 hours of community service to be completed within the first fifteen months of his probation period.

The defendant was released from incarceration and began serving probation on May 4, 2006. On July 28, 2006, the office of adult probation filed a motion seeking modification of the conditions of the defendant’s release. Specifically, the probation officer assigned to the case requested that the defendant be required to review, sign and abide by all sexual offender conditions of probation to include sexual offender evaluation and any recommended treatment, polygraph examinations and Abel screens, which are specialized tests to determine a person’s sexual interest in children, as deemed necessary by the office of adult probation. The request was based on the probation officer’s discovery that the defendant had a 1997 conviction of sexual assault in the fourth degree stemming from an incident that occurred in 1995, that the defendant was listed on the state’s sex offender registry and that a parole board evaluation conducted in 2001 rated the defendant’s recidivism-sexual offense relapse risk as high and his dangerousness-severity of risk as severe.

At the hearing on the request to modify the conditions of probation and to impose the sexual offender condition, the probation officer testified that his basis for making the request was the policy of the office of adult probation to do so out of an abundance of caution where the probationer had a prior sexual offense conviction and was still on the sex offender registry. The probation officer referred to no behavior on the part of the defendant during his probation that gave rise to this requested modification. The probation officer testified, however, that because the use of alcohol was a factor in the defendant’s past crimes, he believed it was necessary to make the recommendation in case the defendant started drinking again. In response to the court’s inquiry as to how the condition of sexual offender evaluation was reasonably related to the defendant’s current rehabilitation, the probation officer stated that he did not believe that it was “so much related to his rehabilitation as much as it [was] to his supervision and the safety to the community as a probation department.” The probation officer acknowledged that the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs had no sexual component, that he had no present indication that the defendant was using or abusing alcohol and that the defendant was enrolled in a substance abuse program in accordance with the terms of his probation.

In response, the defendant argued that if specific problems with alcohol arose in the future, the conditions imposed at sentencing relating to alcohol use were sufficient to address any such issue. The defendant further argued that the conditions regarding sexual offender treatment were completely unrelated to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs for which he is currently on probation. Additionally, the defendant contended that there was nothing to indicate any probability that he would commit a sexual offense while on probation, especially because it had been more than ten years since he had been convicted of the sexual assault charge and at least five years since he had been under supervision by the department of correction or office of adult probation.

On August 7, 2006, the court granted the motion for modification and imposed a condition of probation requiring the defendant to review, sign and abide by all sexual offender conditions of probation, including sexual offender evaluation and any recommended treatment, polygraph examination and Abel screens as deemed necessary. In its memorandum of decision, the court stated that State v. Pieger, 240 Conn. 639, 692 A.2d 1273 (1997), required the condition of probation to be reasonably related to the purposes of probation. Quoting broad language from Pieger, the court determined that any condition could be imposed if it would help serve the defendant’s reformation. The court noted that the probation officer testified that alcohol was a common denominator in the defendant’s criminal history and, in particular, that it “fueled the conduct which resulted in his sexual assault conviction.” The court concluded that the sexual offender condition was “reasonably necessary to rehabilitate the defendant and reasonably necessary to protect prospective victims.” This appeal followed.

On appeal, the defendant contends that the additional condition requiring him to participate in sexual offender evaluation, treatment or both is improper because it is not related to his rehabilitation for the crime to which he pleaded guilty and for which he is currently serving probation. We agree.

In order to determine whether the legislature intended to allow the imposition of such a condition of probation, we begin with the familiar principles of statutory construction. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider 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, extratextuai evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 663-64, 916 A.2d 803 (2007). We first look to the language of the statute and to the general goals of probation in order to discern the intent of the legislature in enacting subdivision (17) of General Statutes § 53a-30 (a).

General Statutes § 53a-30 (a) provides in relevant part that “[w]hen imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (17) satisfy any other conditions reasonably related to the defendant’s rehabilitation. ...” The comment of the commission to revise the criminal statutes, which first proposed adoption by the legislature of our present criminal code more than thirty years ago, provides in relevant part as to § 53a-30: “This section sets out, as a kind of guideline, the general conditions that the court may impose on the sentence of probation .... The list is not intended to be exhaustive.” Commission to Revise the Criminal Statutes, Penal Code comments, Connecticut General Statutes Annotated (West 2001) § 53a-30, commission comment. Thus, pursuant to § 53a-30 (a), a sentencing court may impose a variety of conditions to a sentence of probation that are aimed at rehabilitating the defendant.

In viewing the general goals of probation together with the broad language of the statute, we conclude that the trial court has the broad authority and flexibility to impose conditions to reach the desired ends of rehabilitating the probationer. Thus, for example, the court has the authority to impose sexual offender treatment as a special condition of probation. See State v. Cyr, 57 Conn. App. 743, 746-48, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000). The court’s authority, however, is not unbridled. In the exercise of its discretion, the court’s imposition of a condition must reasonably relate to the purposes of probation.

“Probation conditions serve two primary purposes. [They] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. . . . Because probation is part of a criminal sentence, probation conditions often restrict the liberty rights of a probationer by imposing serious restraints on a probationer’s life-style, associations, movements and activities. . . . Nevertheless, a condition of probation may diminish a probationer’s liberty rights only to the extent necessary for his reformation and rehabilitation.” (Citations omitted; internal quotation marks omitted.) State v. Graham, 33 Conn. App. 432, 448, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

“When sentencing a defendant to probation, a trial court has broad discretion to impose conditions. . . . Nevertheless, this discretion is not unlimited, as statutory and constitutional constraints must be observed. . . . General Statutes § 53a-30 enumerates the conditions that the trial court may impose on a defendant.” (Citations omitted.) State v. Graham, supra, 33 Conn. App. 447. Although the list of conditions set forth in § 53a-30 was meant to be illustrative, and not exhaustive, the gamut of potential conditions of probation to be imposed on a defendant is not unbounded. “On appeal, we review whether the trial court abused its statutory discretion in imposing a condition of probation.” Id.

“[I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” (Internal quotation marks omitted.) State v. Thorp, 57 Conn. App. 112, 116-17, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). In the present case, our focus is on the first factor, the purposes sought to be served by probation.

Here, the court relied primarily on State v. Pieger, supra, 240 Conn. 639, and State v. Cyr, supra, 57 Conn. App. 743, to support its conclusion that the condition of sexual offender evaluation was appropriate. On closer examination, however, neither Pieger nor Cyr supports the trial court’s conclusion. In Pieger, the defendant was convicted of evading responsibility in connection with an accident in which he struck a pedestrian with his vehicle. The trial court required, as a condition of probation, that the defendant donate $2500 to the hospital in which the victim was being treated for severe injuries. On appeal, our Supreme Court affirmed the imposition of the condition because it was reasonably related to the defendant’s rehabilitation, as it forced him to confront the harm his actions caused. State v. Pieger, supra, 650. Moreover, the court stated that “requiring the defendant to make a donation to the hospital . . . was more rehabilitative than requiring the defendant to pay a fine because the donation had a direct relationship to the accident and the injuries, thereby advancing the rehabilitative purpose of making the defendant accept his responsibility for the accident.” (Emphasis added.) Id. The court concluded that “as long as the condition requiring monetary payment shares a nexus with the defendant’s crime, as in this case, it is reasonably related to rehabilitation.” Id., 651. The court further noted: “In the present case, the nexus shared by the defendant’s crime and the imposed condition of making a donation is clear—the donation is to be made to the hospital where the victim of the crime was treated. In future cases, however, express findings supporting the requisite nexus would alleviate any concerns on the part of a reviewing court.” Id., 651 n.5.

In Cyr, the defendant was convicted of risk of injury to a child and prostitution. State v. Cyr, supra, 57 Conn. App. 745. The trial court imposed a condition of sexual offender treatment. The defendant failed to comply with that condition, and his probation was revoked. In his appeal challenging the revocation of probation, the defendant claimed that the trial court lacked authority to impose the sexual offender treatment as a condition of probation. This court disagreed and affirmed the revocation of probation, concluding that although the statute under which the defendant was convicted was not an enumerated offense requiring sexual offender treatment; see General Statutes § 53a-30; the trial court nevertheless could legally impose such condition. State v. Cyr, supra, 747-48. Specifically, this court noted that the trial court imposed the condition only after it considered “the facts alleged in the risk of impairing morals of a child charges and concluded that given the sexual nature and circumstances of the crimes for which the defendant was on probation, and the fact that the victims were children, the sexual offender evaluation and treatment condition was reasonable, justified and clearly related to the defendant’s rehabilitative needs and the protection of society.” (Emphasis added.) Id., 748.

In State v. Smith, 207 Conn. 152, 540 A.2d 679 (1988), in which the defendant had been convicted of robbery, he admitted that the robbery was committed so that he would be able to purchase drugs. Id., 154. One year into the defendant’s probation, his probation officer determined that the defendant was involved with drugs again. Id., 155. As a result, a drug testing-urinalysis condition of probation was imposed and, after apositive urine test, the defendant’s probation was violated. Id., 156-57. On appeal, our Supreme Court addressed the necessary connection between the added probation condition and rehabilitation for the offense that resulted in the underlying conviction. The court concluded: “It is simply unreasonable for the defendant, found guilty of robbery in the first degree intended to generate money to pay for drugs for himself, to believe that if, during the ongoing contact with the probation officer, the use of drugs was reasonably suggested by his conduct or appearance, he would never expect to be subject to some type of drug testing. . . . [T]he court was entitled to impose urinalysis testing. It clearly was reasonably related to the defendant’s rehabilitation and to the goals of probation. It was a foreseeable consequence . . . .” Id., 172.

In State v. Misiorski, 250 Conn. 280, 282-83, 738 A.2d 595 (1999), the defendant pleaded guilty to sexual assault in the fourth degree and public indecency in a case involving a mentally impaired victim. The trial court ordered, as a condition of probation, that the defendant undergo sexual offender testing, counseling and treatment. Id., 284. Subsequently, the office of adult probation informed both the court and the defendant that it intended to notify the defendant’s neighbors and fellow bowling league participants of the defendant’s conviction. The defendant objected, and the corut held a hearing to determine whether the office of adult probation had authority to impose such a condition. Id., 284-85. The court found that it did. On appeal, the Supreme Court concluded: “Notification to the public was a reasonable component of the defendant’s sexual offender treatment.” Id., 289.

Conversely, in State v. Thornton, 55 Conn. App. 28, 739 A.2d 271 (1999), the defendant was convicted of risk of injury to a child, and this court held that it was not proper to impose as a condition of probation the payment of money into a fund to compensate the victim for presently unknown treatment costs. The court held: “[These costs were] far too remote to be considered ‘reasonably related to the offense’ or ‘easily ascertainable damages for injury’ to be allowed under § 53a-28 (c).” Id., 34.

In State v. Graham, supra, 33 Conn. App. 434. the defendant was convicted of larceny and drug offenses. The trial court imposed as a condition of probation that the defendant must keep her house and children clean and that any child of hers younger than age thirteen could not be left unattended. Id., 446. On appeal, this court held that the imposition of these conditions of probation was improper because the “conditions regarding cleanliness of the home and care and cleanliness of the children do not serve to rehabilitate or to reform the defendant because they do not relate to the defendant’s behavior involved in her convictions for larceny and drug crimes.” Id., 448.

On the basis of the previously discussed case law, it is evident that in order for a condition of probation to be “reasonably related to the defendant’s rehabilitation” pursuant to § 53a-30 (a) (17), there must be a nexus between the condition of probation and the charge for which the defendant is serving probation. Such a requirement not only serves to rehabilitate a defendant on the basis of the crime committed but also protects the constitutional rights of the probationer.

Here, the defendant pleaded guilty to operating a motor vehicle while under the influence of intoxicating liquor or drugs. There was no sexual component involved in this offense. Thus, the condition imposing sexual offender evaluation and treatment is not related to the offense for which the defendant is on probation. The court rationalized its imposition of sexual offender evaluation and treatment by stating that because alcohol was the common denominator in his criminal history, including his sexual offense from more than ten years prior, the added condition was reasonably related to the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs. The fact that alcohol may have been the common denominator in the defendant’s criminal history might support the imposition of the requirement of alcohol counseling for any of his other crimes. Because the defendant’s sexual conduct was not a common thread in the defendant’s criminal history and was wholly unrelated to the defendant’s present conviction, however, there is no logical nexus between the added condition of probation and the underlying offense of which he was convicted.

On the basis of the foregoing, we conclude that the court abused its discretion by modifying the conditions of the defendant’s probation and imposing the requirement of sexual offender evaluation and treatment.

The judgment is reversed and the case is remanded with direction to deny the motion for modification of the conditions of probation.

In this opinion McLACHLAN, J., concurred.

LAVINE, J.,

dissenting. “Since probation is, first and foremost, a penal alternative to incarceration—its objectives are to foster the offender’s reformation and to preserve the public’s safety—a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation.” State v. Smith, 207 Conn. 152, 168-69, 540 A.2d 679 (1988). The majority would reverse the judgment of the trial court “[b]ecause there is no nexus between the modified condition [of probation] and the [conviction] for which the defendant [Kevin M. Boyle] is serving probation . . . .” I disagree. Moreover, I think the majority improperly focuses on the modified condition’s relationship to the charge of conviction, rather than its relationship to the appropriate purposes of probation, including “the legitimate needs of law enforcement.” (Internal quotation marks omitted.) State v. Thorp, 57 Conn. App. 112, 117, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). In my view, the majority’s conclusion undermines the clear purpose of General Statutes § 53a-30 (c). I therefore respectfully dissent.

In granting the motion for modification of probation filed by the office of adult probation, the court stated in its memorandum of decision: “While the defendant’s claim of remoteness, and a lack of overt connection between sex offender treatment and the underlying crime of operating [a motor vehicle while under the influence of intoxicating liquor or drugs] are relevant inquiries, the court is not persuaded that the requested modification is inappropriate. As noted previously, the defendant remains obligated to register as a sex offender until 2009. In enacting [General Statutes] § 54-102s, Connecticut’s ‘Megan’s Law,’ it was the legislature’s intent to require sex offender registration as ‘[in] response to concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders’ .... State v. Misiorski, 250 Conn. 280, 292, 738 A.2d 595 (1999). . . .

“Therefore, the registration requirement is not only an express recognition that a danger to public safety exists, but also a recognition that it exists to such a degree that the public is entitled to be kept informed of the defendant’s whereabouts. . . .

“Said [proposed] condition is reasonably related to the purposes of probation. Although the defendant is on probation for operating [a motor vehicle while under the influence of intoxicating liquor or drugs], the court observes that [the office of adult] probation is legitimately concerned about the nexus between the defendant’s alcohol consumption and the conduct which resulted in his sexual assault conviction.

“The court finds that the evidence and law support the conclusion that such a condition is reasonably necessary to rehabilitate the defendant and reasonably necessary to protect prospective victims.

“Therefore, the request to modify the defendant’s probation to include a requirement that he review, sign and abide by all sex offender conditions of probation, to include sex offender evaluation and any recommended treatment, polygraph examinations and Abel screens [which are specialized tests to determine a person’s sexual interest in children] as deemed necessary by the office of adult probation is granted.”

THE STANDARD OF REVIEW

Both parties agree that the decision of the court is entitled to considerable deference and is reviewed under the abuse of discretion standard. “[I]n modifying or expanding the conditions of probation to serve the ends of justice, the court’s objective must be to impose special conditions that foster the offender’s reformation as well as preserve the public’s safety. The broad power to impose conditions permits insulating the individual from the conditions that led him into trouble. . . . The trial court therefore has broad discretion to modify or enlarge the conditions of probation, for good cause shown, at any time during the period of probation.

“The appropriate standard of review of a trial court’s actions is whether the trial court abused its discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice.” (Citations omitted; internal quotation marks omitted.) State v. Medley, 48 Conn. App. 662, 665-66, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998).

“If it appears that the trial court reasonably was satisfied that the terms of probation had a beneficial purpose consistent with the defendant’s reformation and rehabilitation, then the order must stand.” State v. Pieger, 240 Conn. 639, 648, 692 A.2d 1273 (1997). The issue before this court is not whether another court would have come to the same conclusion but whether “the [trial] court could reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Cancel, 275 Conn. 1, 15, 878 A.2d 1103 (2005). A defendant who seeks to reverse the exercise of discretion “assumes a heavy burden . . . .” (Internal quotation marks omitted.) State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).

THE POLICY BASIS OF PROBATION

“Probation is the product of statute. See General Statutes § 53a-28 et seq. Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions.” State v. Smith, supra, 207 Conn. 167.

“Probation is, first and foremost, a penal alternative to incarceration—its objectives are to foster the offender’s reformation and to preserve the public’s safety. For that reason, a sentencing court is afforded broad discretion to fashion those conditions of probation it deems necessary to ensure the individual successfully completes his term of probation. . . . When necessary, the sentencing court has discretion to impose conditions that impinge on otherwise inviolable rights. In determining whether a probation condition unduly intrudes on a constitutionally-protected freedom, a reviewing court evaluates the condition in the following context:

“The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” (Internal quotation marks omitted.) United States v. Williams, 787 F.2d 1182, 1185 (7th Cir. 1986); State v. Pieger, supra, 240 Conn. 647-48.

“The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate. ... To ensure this success, the trial judge has an exceptional degree of flexibility in determining whether to grant . . . probation and on what terms.” (Citations omitted; internal quotation marks omitted.) State v. Pieger, supra, 240 Conn. 648.

“Pursuant to § 53a-30 (a), a sentencing court may impose a variety of conditions to a sentence of probation, all of which are aimed at rehabilitating the defendant. Within the permitted statutory conditions, the court may direct medical or psychiatric treatment, impose support obligations, require suitable employment, set housing restrictions, and order restitution. . . . Unlike these specific provisions of § 53a-30 (a), the terms of subdivision [17] are very broad. By allowing the trial court to impose ‘any other conditions reasonably related to [the defendant’s] rehabilitation’ . . . the legislature authorized the court to impose any condition that would help to secure the defendant’s reformation. This broad power is consistent with the general goals of probation.” (Citation omitted; emphasis in original.) Id., 646-47.

THE FACTS

On July 28, 2006, Christopher J. Pribyson, the probation officer assigned to the defendant, filed a motion to modify the terms of the defendant’s probation to require the defendant to review, sign and abide by all sex offender conditions of probation, to include sex offender evaluation and any recommended treatment, polygraph examinations and Abel screens as deemed necessary by the office of adult probation. The motion stated that the modification was necessary for the office of adult probation to supervise the defendant adequately in the community and to offer the most effective supervision for the safety of the community and the public at large.

Pribyson testified for the state in favor of the granting of the motion for modification. Pribyson has extensive experience in the supervision of sex offenders. He explained to the court the manner in which the defendant’s case came to his attention and the reason for his concerns. The defendant’s file originally was assigned to the intake assessment referral unit. After the defendant’s criminal history was noted, the file was transferred to one of the three sex offender probation officers in the office of adult probation. The court support services division’s policy (policy), which was placed into evidence, required that the defendant be supervised by a specialized sex offender probation officer. Pribyson noted that the defendant was registered with the state police roll of sex offenders. Although he is a registered sex offender, the defendant had not been supervised as a sex offender by the office of adult probation during the last ten years. The policy required that Pribyson file a motion for modification of the defendant’s probation.

In response to the state’s question as to whether there was anything specific to which he could cite that gave him a reason to request the modification, Pribyson testified: “[Conversations with the [defendant] in how he related to me his past history with alcohol and reviewing the police reports in which alcohol was a huge risk factor, a dynamic risk factor. If he was to, you know, start to use [alcohol] again—that was a situation in which the sex offenses occurred—that would be a huge concern.” He also testified that the defendant’s 2001 evaluation for risk of reoffending stood out because it was at a high level, which Pribyson did not usually see.

The court specifically asked Pribyson why the evaluation was necessary and what it had to do with the defendant’s reasonable rehabilitation:

“The Court: [W]hat is it about the defendant’s present posture, based upon your training and experience and based upon his past history, that makes you feel that a sex offender evaluation and any follow-up treatment is reasonably related to his rehabilitation based upon the probation for the crime he’s presently on?
“[The Witness]: Presently, nothing.
“The Court: But you feel as though adding a condition of sex offender evaluation is reasonably related to his rehabilitation because of the—-just the position of alcohol with his past crimes and the fact that the alcohol obviously was the basis for which he’s presently on probation?
“[The Witness]: Yes, and in reviewing the other police reports, the same types of behavior were exhibited in those incidents. Those incidents and those behaviors are the static factors that are involved and those won’t change, and the dynamic risk factors involved medical—his medical attention, his being sober. If those things were to change slightly, the whole situation could change drastically.
“The Court: Why do you think adding these conditions is reasonably related to his rehabilitation, why exactly?
“[The Witness]: Starting with the evaluations, since the evaluation is from 2001, without having somebody who’s qualified to do the evaluation and at least having an evaluation completed, I really don’t have an idea if he should or shouldn’t be in sex offender treatment. If they determine that he doesn’t need to be in sex offender treatment then, you know, there’s no reason to go on further.
“The Court: I mean, my direct question is, in other words, I understand what you’re saying in terms of what the evaluation itself can tell you, but what I’m asking you is, what is it about ordering a sex offender evaluation that you feel is reasonably related to his rehabilitation at the moment? In other words, is it based on your training and experience, looking at his past history
“[The Witness]: I don’t think it’s so much related to his rehabilitation as much as it is to his supervision and the safety to the community as a probation department.” (Emphasis added.)

DISCUSSION

The discretion of courts to impose additional conditions of probation is, of course, not without limits. State v. Thornton, 55 Conn. App. 28, 32-33, 739 A.2d 271 (1999). Imposing, or adding, conditions of probation should not be based on the personal preferences or idiosyncrasies of a probation officer or court, or some vague notion that the proposed condition is good for the probationer or society. See, e.g., State v. Graham, 33 Conn. App. 432, 446-48, 636 A.2d 852 (conditions of probation requiring defendant convicted of narcotics offense and larceny to provide for proper care and cleaning of home and prohibiting children younger than age thirteen being left alone without adult not reasonably related to the purposes of probation), cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). Conditions of probation, whether imposed at the time of sentencing or after, must reasonably relate to the purposes of probation, i.e., rehabilitation of the offender and protecting society. State v. Smith, supra, 207 Conn. 168-69.

The mere existence of § 53a-30 (c), however, demonstrates that the legislature has concluded that there are instances in which conditions of probation, not contemplated at the time of plea or sentencing, ought to be added, subject to a finding of “good cause.” See footnote 1. In this case, numerous factors supported the concern of the probation officer, and the ruling of the court, that sex offender evaluation, and possibly treatment, were warranted. They include (1) the defendant’s status as a registered sex offender until 2009, (2) the 2001 sex offender evaluation, (3) the history of “alcohol fueled conduct” testified about by Pribyson, including the fact that the defendant’s 1997 conviction of sexual assault in the fourth degree was alcohol related, (4) Pribyson’s conversations with the defendant, which confirmed, in Pribyson’s judgment, the link between alcohol and criminal conduct, (5) the April 5, 2006 conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. The defendant’s alcohol fueled conduct, in the context of all the facts in this case, provides the necessary factual nexus between the proposed condition of probation and preserving public safety. Cf. State v. Repetti, 60 Conn. App. 614, 620-22, 760 A.2d 964 (approving probation officer’s requirement that defendant refrain from use of alcohol as part of sex offender treatment), cert. denied, 255 Conn. 923, 763 A.2d 1043 (2000).

The majority cites the three-pronged test to be used by a reviewing court to evaluate the condition of probation imposed, i.e., (1) the purposes sought to be served by probation, (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers and (3) the legitimate needs of law enforcement. The majority then states that “[i]n the present case, our focus is on the first factor, the purposes sought to be served by probation.” The majority thus wholly ignores the third factor, “the legitimate needs of law enforcement,” which informed Pribyson’s judgment and was an integral part of the court’s analysis.

A review of the cases indicates the consistent focus that has been placed on whether there is a sufficient relationship between the condition imposed, or sought to be added, and the purposes of rehabilitation. State v. Pieger, supra, 240 Conn. 648 (if it appears court reasonably satisfied terms of probation had beneficial purpose consistent with defendant’s reformation and rehabilitation, order must stand). The majority nonetheless concludes that “it is evident that in order for a condition of probation to be ‘reasonably related to the defendant’s rehabilitation’ pursuant to General Statutes § 53a-30 (a) (17), there must be a nexus between the condition of probation and the [conviction] for which the defendant is serving probation.” (Emphasis added.) The cases cited by the majority, however, do not support this broad assertion.

Of course, it often happens that conditions of probation will bear a direct relationship to the offense of conviction, e.g., a condition that the probationer convicted of using, or selling, controlled substances, not possess, or sell, any illegal substances or weapons. This does not mean that all probation conditions, in the wide range of cases in our courts, must stem directly from the offense of conviction.

Section 53a-30 (c) provides a mechanism for cases, such as this, in which postsentencing information or developments persuade a probation officer that permission should be sought to add an additional probation condition. The majority’s approach would frustrate the purpose of the statute in cases in which information is not available, or known, or its significance not fully appreciated, at the time of the plea or the sentencing, but instead comes to light during the period of probation.

The defendant also claims on appeal that the imposition of the sexual offender condition violates his constitutional rights because it renders his plea unknowing and involuntary and amounts to additional punishment for the sexual offense of which he had been convicted and for which he has served his sentence. Both of these arguments are without merit. The additional condition was added only after notice, a hearing and a full and fair opportunity to contest the matter. In accepting probation, the defendant accepted at the time of sentencing the possibility that the terms of his probation could be modified or enlarged in the future in accordance with the statutes governing probation. See State v. Thorp, supra, 57 Conn. App. 121.

In sum, I conclude that the evidence before the court demonstrated good cause to grant the state’s motion to modify the defendant’s probation to include the disputed condition. The defendant’s probation officer had approximately five years of experience supervising between sixty and eighty sex offenders and followed the policy of the court support services division with respect to sex offenders who are on probation for other offenses. The defendant is required to register as a sex offender until 2009. There is a connection between the defendant’s prior sexual offenses and his use of alcohol, which is the root of the current offense for which he is on probation, i.e., operating a motor vehicle while under the influence of intoxicating liquor or drugs. The more support programs that are in place, the less likely a probationer is to reoffend. Furthermore, the office of adult probation is charged, in part, with protecting the general public. Without a current sex offender evaluation, it is not known what, if any, services the defendant needs to avoid reoffending and what steps are necessary to protect the public. I conclude that the court did not abuse its discretion by granting the motion to modify because the dual purposes of probation will be served by requiring the defendant to undergo sex offender evaluation at this time. For these reasons, I respectfully dissent.

       General Statutes § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (17) satisfy any other conditions reasonably related to the defendant’s rehabilitation. . . .”

       The defendant also claims on appeal that the imposition of the sexual offender condition violates his constitutional rights because it renders his plea unknowing and involuntary and amounts to an additional punishment for a sexual offense that he committed more than ten years ago, an offense for which he has served his sentence. Because we agree with the defendant’s first claim, we need not address his additional claims.

       General Statutes § 53a-30 (c) provides: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”

       The probation officer attached to the motion for modification a report dated January 16, 2001, from “The Connection, Incorporated,” described as a “Special Services Center for the Treatment of Problem Sexual Behavior.” The defendant had been evaluated on January 12,2001, when he was serving a three year sentence for arson in the third degree, assault in the third degree and reckless endangerment. The report noted that the defendant “had been arrested on three occasions for criminal sexually related behavior.” The report contained a section entitled “Risk Assessment,” which characterized the defendant’s “dangerousness rating” as severe and concluded that his “Recidivism/Sex Offense Relapse Risk, or Likelihood of Future Risk Potential” was high. The report also concluded that the defendant demonstrated little insight into what the report characterized as a “significant mental health problem.”

       In Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir. 1997), the United States Court of Appeals for the Second Circuit discussed the purposes of probation and the notification provision of Connecticut’s Megan’s Law. “In response to . . . concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders, which have prompted the enactment of sex offender registration and notification statutes around the country, Connecticut has . . . enacted its own version of Megan’s Law. . . . The law required these offenders to provide certain registration information to law enforcement officials . . . .” (Citations omitted; internal quotation marks omitted.) Id., 48-49.
      Although Roe concerned the notification provision in the context of an ex post facto claim, the Second Circuit found that the notification policy adopted by the office of adult probation was intended to foster the rehabilitation of sex offenders and to protect society. Id., 50-51.

       General Statutes § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (17) satisfy any other conditions reasonably related to the defendant’s rehabilitation. . . .”

       Pribyson testified at the August 2, 2006, hearing that he was finishing his fifth year of supervising a sex offender caseload and that he had handled sixty to eighty sex offender cases. He indicated, in response to a question, that his experiences within the specialized sex offender unit in which he worked had caused him to conclude that filing the subject motion for modification of probation was necessary.

       Pribyson testified in part: “In general, if the person is being supervised as a sex offender, then they’re going to adhere to the sex offender conditions of probation for a conviction on a sex offense crime. If they were supervised in the last ten years as a sex offender and sex offender conditions of probation, which include the evaluation and recommended treatment, can be imposed, the loophole there is that an individual like [the defendant] might be on for something completely different; the ten year window has expired or it doesn’t—the old probation doesn’t apply because it has been closed out and then the . . . policy requires us to file the motion for the modification to be able to impose the sex offender conditions with the recommended evaluation and—or with the evaluation and any recommended treatment.”

       Pribyson testified in part that “[l]ooking into the past police reports, which I obtained from other closed probation files and reading the narratives from those police reports, as well as obtaining the 2001 . . . sex offender evaluation, which was completed by special services . . . done for a parole board evaluation—[i]n reviewing that, I felt that it was necessary to file the motion for modification so that it can be heard; that he can be represented by an attorney; that we can then try to figure out if we should impose the evaluation and, or complete supervision of him on the sex offender caseload along with the sex offender conditions of probation to ensure appropriate supervision in the community.”

       In Pieger, one of the cases on which the majority relies, the defendant was required, as a condition of his probation, to donate $2500 to the hospital in which the victim had been treated after being struck and seriously injured by the defendant’s motor vehicle. “[A]s long as the condition requiring monetary payment shares a nexus with the defendant’s crime ... it is reasonably related to rehabilitation.” State v. Pieger, supra, 240 Conn. 651. The Pieger court did not state that a condition could never be appropriate unless it shared a nexus with the defendant’s crime.
      In State v. Cyr, 57 Conn. App. 743, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000), the issue was whether the court had the authority to add sex offender treatment as a condition although the offense of which the defendant was convicted was not an enumerated offense in General Statutes § 53a-30 requiring such treatment. State v. Misiorski, supra, 250 Conn. 280, concerned whether the court properly upheld the authority of the office of adult probation to give notification to neighbors about that defendant’s sexual assault conviction pursuant to General Statutes §§ 54-102s and 54-108. State v. Thornton, supra, 55 Conn. App. 28, in which the court invalidated a condition that would have required the defendant to pay money into a fund for expenses for long-term counseling of the victim, was decided under a statute relating to restitution; see General Statutes § 53a-28; and was based in part on the fact that the trial court had made no finding whatsoever with respect to actual expenses or anticipated out-of-pocket expenses for the victim’s anticipated care. State v. Thornton, supra, 33.

       Although the defendant argues in his brief that the modification punishes him twice for the same offense, he concedes that it is not precisely a double jeopardy claim. The argument has no legal basis. This court, has stated that double jeopardy is not applicable to probation revocation proceedings because in revocation proceedings, the defendant is not exposed to a criminal prosecution for the same offense following conviction. State v. Gauthier, 73 Conn. App. 781, 793-94, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EMMANUEL A. BLANGO
    (AC 27434)
    Flynn, C. J., and Graendel and Harper, Js.

      Argued April 30
    officially released July 17, 2007

      Annacarina Del Mastro, senior assistant public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Thomas M. DeLillo, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Emmanuel A. Blango, appeals from the judgments of conviction, rendered following a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of larceny in the fifth degree in violation of General Statutes § 53a-125a and four counts of threatening in the second degree in violation of General Statutes § 53a-62 (a) (l). He was sentenced to a term of five years incarceration, to be served consecutive to a previously imposed sentence. On appeal, the defendant claims (1) that there was insufficient evidence to support (a) his conviction of robbery in the first degree and (b) his conviction of one of the counts of threatening in the second degree, and (2) that the court’s jury instructions were misleading as to (a) the robbery in the first degree charge and (b) the threatening charges. We affirm the judgments of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to the issues on appeal. On April 18, 2003, at approximately 3:30 a.m., three Eastern Connecticut State University students, Rosa Luis, Meghan Bauer and Emily Rood, were walking on campus near the Noble Hall dormitory. As Luis went to knock on her friend’s dormitory window, the defendant, while driving his white Saab automobile, drove alongside Bauer and Rood and began to question them. Luis was standing approximately twelve feet away from the other students but could hear the defendant, who asked Bauer and Rood if Luis was their friend. Bauer and Rood kept walking, and the defendant, while dangling a gun from his left hand, then asked the students: “Have you ever been shot before?” All three students ran to the front of Noble Hall and into some bushes for safety, and the defendant left the scene. The students, who were crying, terrified, hysterical and scared, reported the incident to the police.

Shortly thereafter, the defendant stopped his automobile for a hitchhiker, Thomas Vincent, and offered to give Vincent a ride in exchange for $10. Vincent agreed but stated that he needed to go to an automatic teller machine (ATM) to obtain money. The defendant drove to a nearby Fleet Bank ATM drive-thru, where Vincent handed the defendant his ATM card, told him the personal identification number (PIN) to gain access to his account and asked the defendant to withdraw $300. The defendant obtained the $300, pulled a gun on Vincent and ordered him out of the automobile without giving him the money. Vincent then requested that the defendant return his ATM card, but the defendant refused. After exiting the automobile, Vincent ran toward some bushes and watched as the defendant reinserted his ATM card to withdraw additional money. Vincent ran onto Main Street, where he reported the robbery to a police officer. As the officer went to investigate, the defendant approached Vincent, who ran until he tripped and fell. The defendant then knelt on top of Vincent, held a gun to Vincent’s head and stated, “pow, you’re dead,” before running toward a nearby Mobil gasoline station and Dandy Donut shop.

Vincent then pointed out the defendant to the police, who had discovered the defendant’s Saab at the Fleet Bank ATM drive-thru with the engine still running. The police arrested the defendant and, after searching the area, found the defendant’s gun, an ATM receipt for $301 and $751 in cash in a wooded area nearby.

The defendant was charged with three counts of threatening in the second degree related to the incident at Eastern Connecticut State University, and one count each of robbery in the first degree, larceny in the fifth degree and threatening in the second degree for the incident involving Vincent. Both cases were consolidated and tried to the jury, which found the defendant guilty on all counts. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support (a) his conviction of robbery in the first degree and (b) his conviction of one of the counts of threatening, specifically the charge related to Luis. We disagree.

The following additional procedural history is relevant to the defendant’s claim. On December 5, 2005, after the jury’s verdicts, the defendant filed a motion for a judgment of acquittal on the robbery charge and on the threatening charge related to Luis on the ground that the state had failed to prove each and every element of these charges. On that same date, the defendant also filed a motion to set aside the jury’s verdicts and for a new trial. In these motions, the defendant argued, in relevant part, that the evidence adduced at trial failed to prove that he compelled Vincent to “deliver up” money, as had been specifically charged by the state, and that the evidence failed to prove that the defendant had the requisite intent to threaten Luis because there was no evidence that his comments were directed to her or that he ever attempted to speak directly to her. The court denied these motions.

When reviewing sufficiency of the evidence claims, we first 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt as to each element of the crime charged beyond a reasonable doubt. See State v. Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007).

It does not diminish the probative force of the evidence that it consists, in its entirety or in part, of evidence that is circumstantial rather than direct. Id. The jury may draw whatever inferences from the evidence or the facts established by the evidence it deems to be reasonable and logical. Id. On appeal, we ask only whether there is a reasonable view of the evidence that supports the jury’s verdicts of guilty. Id., 809.

A

We first address the defendant’s claim that there was insufficient evidence to support his conviction of robbery in the first degree. The defendant argues: “In count one of the information [in the first case], the state charged the defendant with robbery in the first degree, accusing him that ‘while in the course of committing a larceny, [the defendant] threaten[ed] the immediate use of physical force against another person, to wit: Thomas A. Vincent, for the purpose of compelling the owner of property, the said Mr. Vincent, to deliver up said property, and in the course of commission of said crime, the [defendant] threatened the use of a firearm . . . (Emphasis in original.) The defendant argues that on the basis of this charging document, the state had to prove that he committed robbery by compelling Vincent to “deliver up” property and that there was “not a scintilla of evidence [that he] compelled Vincent to deliver up any property.” (Emphasis in original.) Accordingly, he argues, the evidence was insufficient to support his conviction on the charge of robbery in the first degree. We disagree.

General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

Larceny is defined in relevant part by General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

The crux of the defendant’s claim is that because the state specifically alleged that the defendant was guilty of robbery for forcing Vincent to “deliver up” property at gunpoint, it would be insufficient for the state to prove robbery by any other means except for the alleged forcing of the victim to “deliver up” property. Although we do not necessarily agree with the defendant’s contention, we find it unnecessary to respond to this argument because we conclude that the evidence did prove that the defendant, while threatening the use of a firearm, forced Vincent to “deliver up” property.

As we explained in State v. Torres, 82 Conn. App. 823, 847 A.2d 1022, cert. denied, 270 Conn. 909, 853 A.2d 525 (2004): “Both subdivisions (1) and (2) of . . . § 53a-133 refer to the defendant’s purpose in using or threatening force. Subdivision (1) refers to his purpose of using or threatening force to prevent or overcome resistance to the taking of the property, or to its retention immediately after the taking. Subdivision (2) refers to his purpose of using or threatening force to compel the owner to deliver up property or otherwise to aid in the larceny. These two states of mind are hardly conceptually distinct from each other .... Both states of mind [involve] an intent to force or intimidate the [victim] to yield [his] property so as to permit its taking or retention by the defendant.” (Internal quotation marks omitted.) Id., 834.

We decline the defendant’s invitation to construe the term “deliver up” so narrowly; rather, we construe the term more broadly, as its common definition would suggest, to mean a relinquishment of control or possession. The term “delivery” is commonly defined as “[t]he formal act of transferring or conveying something, such as a deed; the giving or yielding possession or control of something to another.” Black’s Law Dictionary (7th Ed. 1999). Similarly, Webster’s Third New International Dictionary (2002) defines “deliver” in relevant part as: “give, transfer: yield possession or control of . . . .”

In this case, the evidence demonstrated that although Vincent willingly handed over his ATM card to the defendant for the limited purpose of making a $300 withdrawal, Vincent did not willingly relinquish possession and control of that money to the defendant, nor did he willingly relinquish possession and control of his ATM card. The evidence showed that Vincent gave the defendant temporary custody of his ATM card for the limited purpose of making a monetary withdrawal, with the full expectation that both the money and the ATM card immediately would be returned to him. When the defendant refused to give Vincent the money, put a gun to Vincent’s head, demanded that Vincent exit the vehicle and, then, refused to return Vincent’s ATM card, the defendant committed a robbery in the manner specifically charged by the state.

In a related argument, the defendant also contends that the court should have “marshaled” the evidence by instructing the jury that it could not consider the second ATM withdrawal as the predicate larceny to the robbery charge because it was not contemporaneous with his use of force. This argument merits little discussion.

“It is well established that, under General Statutes § 53a-133, if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be in the course of the robbery or the attempted robbery within the meaning of the statute.” (Emphasis added; internal quotation marks omitted.) State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986).

The evidence in this case demonstrated that the defendant, after refusing to return Vincent’s $300, held a gun to Vincent’s head and ordered him out of the automobile. Vincent then asked for the return of his ATM card, and the defendant refused. During his direct testimony, the defendant, although contesting these facts, testified that after Vincent left the vehicle, he watched Vincent until he was out of sight and that he then immediately returned to the ATM and made a subsequent withdrawal. Specifically, the defendant testified: “[Vincent] got out of the car. And I watched him until I couldn’t see him [any] more. Then I got out of the car, and I went back to the ATM. I made another withdrawal. . . . [Vincent] left his ATM card and everything ... on the top of the glove [compartment] area. So, that’s when I [saw it] and went back and made another withdrawal.” On the basis of these facts, we conclude that the second use of the ATM card occurred during a continuous sequence of events. See also State v. Moore, 100 Conn. App. 122, 128-32, 917 A.2d 564 (2007) (after committing larceny, defendant’s statement to store employee that she would “ ‘blow his brains out’ ” just seconds after leaving store sufficiently contemporaneous with larceny to support robbery conviction).

Nevertheless, even without consideration of the defendant’s second use of Vincent’s ATM card, as we explained previously in this section, the jury had sufficient evidence with which to find the defendant guilty on the charge of robbery in the first degree.

B

We next address the defendant’s claim that there was insufficient evidence to support his conviction of one of the counts of threatening in the second degree, specifically, the charge related to Luis. The defendant argues that “Luis was not a part of the conversation between Bauer, Rood and the defendant” and that, therefore, “[t] he conviction of threatening for . . . Luis must be reversed because the state failed to prove [that] the defendant had the necessary intent to place this complainant in fear of imminent serious physical injury.” The state argues that this claim merits little discussion because the evidence clearly showed that the defendant asked all three students whether they had “ever been shot before,” which caused all three of them to run off in fear. We agree with the state.

General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

In this case, the evidence demonstrated that the defendant, while in his vehicle, approached two female students and began to question them while another student, Luis, was standing approximately twelve feet away. One of the questions that the defendant asked the students was whether Luis was their friend. Luis could hear the defendant’s questions. As the two students began to walk away, the defendant asked: “[Hjave you girls ever been shot before?” All three students looked toward the defendant, saw him holding a gun and ran in fear to some bushes at the front of the building.

Construing the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to upholding the jury’s verdict, we conclude that the jury reasonably could have concluded that the defendant was addressing all three students when he asked whether they had ever been shot. Accordingly, there is a reasonable view of the evidence that supports the jury’s verdict on the charge of threatening in the second degree as it relates to Luis.

n

The defendant next claims that the court’s jury instructions were misleading on (a) the charge of robbery in the first degree and (b) the charges of threatening in the second degree. He argues that the court failed to instruct the jury on each element of these crimes in violation of the defendant’s right to a fair trial. Because the defendant did not preserve these claims of instructional impropriety properly in the trial court, he seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that his claim is reviewable under Golding because the record is adequate for review and the claim of instructional impropriety is of constitutional magnitude. See State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). We conclude, however, that the defendant cannot prevail on his claim of instructional impropriety.

The standard of review for claims of instructional impropriety is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

A

The defendant claims that the court improperly instructed the jury on the charge of robbery in the first degree by failing to instruct on all elements of the crime. Citing D. Borden & L. Orland, 5A Connecticut Practice Series: Criminal Jury Instructions (3d Ed. 2001) § 13.6, the defendant argues that the court did not explain to the jury that “it could only find the defendant guilty if the state proved [that] the defendant had the conscious objective for all the elements of the robbery, (including the element of larceny). The court’s instructions also did not explain that to find the defendant guilty, it had to find ‘that in the course of committing the larceny [the defendant] intentionally used physical force [or threat of physical force] on another person for the purposes of compelling the owner of such property or another person to delivery up the property . . . (Emphasis in original.) Therefore, the defendant argues, the court improperly omitted instructions on essential elements of the crime of robbery in the first degree. The state argues in part that the law does not require that the “court charge that a defendant must ‘intentionally’ use physical force to sustain a robbery conviction.” Additionally, the state argues that the court’s instructions were proper. Reviewing the charge as a whole, we conclude that the defendant cannot prevail on his claim.

The court began its instructions to the jury by telling it that it must follow all of the court’s instructions and not only some of them. The court told the jury that the case must be decided on the basis of the evidence, and it explained what was and was not evidence and discussed both circumstantial and direct evidence. The court then discussed credibility, expert witnesses and impeachment. Following these instructions, the court explained the state’s burden of proof and the concept of reasonable doubt. The court then went on to discuss the crimes charged and the elements of these offenses.

The first of the charged offenses explained by the court was the charge of robbery in the first degree. The court explained in relevant part: “A person commits robbery when in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny .... The gist of the crime of robbery is the act of committing a larceny by force or the threat of force. Robbery in the first degree, which is what the defendant is charged with here, provides that a person is guilty of robbery in the first degree when in the course of the commission of the crime of robbery as defined in [§ 53a-133] ... or in immediate flight therefrom, that person displays or threatens the use of what he represents by his words or conduct to be a . . . firearm.” The court explained the requirements of a firearm under the statute and also explained the defendant’s special defense, which alleged that the weapon that he had possessed did not meet the necessary requirements to qualify as a firearm because it was not a weapon from which a shot could be discharged. The court also instructed the jury on the lesser included offense of robbery in the second degree.

Immediately following the instructions on robbery, the court instructed the jury on the crime of larceny. The court instructed in relevant part: “A person commits larceny when, with the intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from the owner. Each of the following elements must be proven by the state beyond a reasonable doubt: first, that the defendant wrongfully took or obtained or withheld property from an owner; and, secondly, that at the time the defendant obtain[ed] this property, he intended to deprive the owner of [his] property or to appropriate such property to himself or another person. Larceny means theft or stealing.”

The court then instructed the jury on the element of a wrongful taking before proceeding to instruct on the element of intent. In instructing on intent, the court explained: “The second element that you must consider in determining whether the defendant is guilty of larceny is that of intent. The state must prove beyond a reasonable doubt that ... at the time the defendant wrongfully took, obtained or withheld property from its owner, he intended to deprive the owner ... of it and that he intended to appropriate it to himself ....

“Intent relates to the condition of mind of the person who commits the act, that is, his purpose in doing it. As defined by our statute, a person . . . acts intentionally with respect to a result or conduct when his conscious objective is to cause such result or to engage in such conduct. Either intent to deprive or intent to appropriate must be found to support a conviction of larceny.”

As to the defendant’s argument that the court should have instructed the jury that “it could only find the defendant guilty if the state proved [that] the defendant had the conscious objective for all the elements of the robbery”; (emphasis in original); we rely on State v. Kurvin, 186 Conn. 555, 442 A.2d 1327 (1982). In that case, our Supreme Court explained: “The [trial] court charged the juiy as follows: ‘A person commits robbery when in the course of committing a larceny he uses or threatens the immediate use of physical force upon another person for the purpose to compel the owners of the property or another person to deliver up the property.’ ... It immediately repeated this instruction. A little later it charged as follows: ‘So in this particular case, without getting into the concept of larceny, which I’ll get into ... in a few moments, if you find beyond a reasonable doubt that the defendant for purposes of committing a larceny used a pistol to show or threaten the use of force, for purposes of compelling a person to deliver over property, then you would find that the defendant is guilty of robbery in the first degree. . . . General Statutes § 53a-3 (11) provides: ‘A person acts “intentionally” with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.’ Since the word ‘purpose’ is synonymous with ‘object’ and ‘intent’; Webster’s, Third New International Dictionary; the court effectively instructed the jury on the robbeiy charge that the conscious objective of the use or threatened use of force was compelling the owner of property to deliver it up to the perpetrator.” (Emphasis added.) State v. Kurvin, supra, 566-67. We conclude that the defendant’s argument, therefore, has been considered and rejected previously by our Supreme Court, and we do not address it further. See also State v. Martin, 77 Conn. App. 778, 804, 825 A.2d 835, cert. denied, 266 Conn. 906, 832 A.2d 73 (2003).

We next consider the defendant’s argument that the court’s instructions were improper because they did not convey to the jury that it had to find that the defendant intentionally used or threatened physical force for the purpose of compelling the victim to deliver up the property before the jury could find the defendant guilty of robbery in the first degree.

The argument in the present case is the same as that made in State v. Leggett, 94 Conn. App. 392, 410, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006). In Leggett, the defendant argued that “the court [improperly had] instructed the jury on the element of intent for robbery because the instructions did not state separately that the defendant needed the intent to use or threaten the use of physical force.” Id. On the basis of this claim in Leggett, we thoroughly reviewed the jury instructions, which revealed that the court had instructed the jmy on the definition of larceny and the intent necessary to commit larceny. Id. The court also had instructed the jury that it had to determine whether the crime of larceny had been accomplished by physical force, and the court described the nature of the physical force necessary for the crime of robbery. Id. We concluded that those instructions sufficiently had set forth the elements of robbery and larceny, and we explained that “the intent element of robbery relates to the commission of the larceny and not to the use or threatened use of physical force.” Id. Accordingly, in the present case, the defendant’s claim fails to satisfy the third prong of Golding because it is not reasonably possible that the court’s instruction misled the jury.

B

The defendant next claims that the court’s jury instructions were misleading as to the threatening charges because the court failed to instruct the jury on the element of specific intent. The state argues that the court’s instructions properly conveyed to the jury the necessary element of intent. We agree with the state.

Immediately after instructing the jury on larceny and intent, the court began its instruction on threatening: “The crime of threatening is defined in § 53a-62 (a) (1) .... A person is guilty of threatening when by physical threat he intentionally places or attempts to place another person in fear of imminent serious physical injury. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: first, that the defendant physically threatened another person and, secondly, that the defendant intended by his conduct to put that person in fear of imminent serious physical injury.” The court went on the define the terms “threat” and “physical threat,” and it explained to the jury that “[i]n addition to proving that the defendant physically threatened the victim, the state must also prove that the defendant by his conduct intended to place the victim in fear of imminent and serious physical injury.”

As explained by our Supreme Court in State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985): “Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present. ... As long as the charge as given achieves these goals, it is constitutionally adequate.” (Citation omitted.) Id., 581. In Sinclair, the trial court had not defined “intent,” but our Supreme Court concluded that this was not reversible error because “[t]he word intent was used in its ordinary sense, in a manner which clearly conveyed what had to be proved by the state to justify a conviction.” Id.

In State v. Jenkins, 40 Conn. App. 601, 606, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996), we held that where the trial court had conveyed to the jury that it must find intent beyond a reasonable doubt in order to find the defendant guilty, it was not improper for the court not to define intent when instructing on the charge of assault of a peace officer. In Jenkins, we carefully pointed out that the trial court first instructed the jury on the charges of attempt to commit robbery and attempt to commit larceny and, in so doing, specifically had defined intent. Id., 605. The court, in charging the jury on assault of a peace officer, told the jury that “the burden of proving intent beyond a reasonable doubt is on the state.” (Internal quotation marks omitted. Id. Concluding that this charge sufficiently instructed the jury on the essential elements of the charge of assault of a peace officer when reviewed in light of the entire charge, we further explained: “[W]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” (Internal quotation marks omitted.) Id., 606.

In this case, although the defendant argues that the court acted improperly by not including another definition and explanation of “intent” in relation to the threatening charge, reviewing the charge as a whole, we conclude that the court’s charge was not improper and that it is not reasonably possible that it misled the jury.

Immediately after charging the jury on the element of intent as it related to the charge of larceny in the fifth degree, the corut read for the jury the definition of threatening in the second degree as defined in § 53a-62 (a) (1). The court carefully instructed the jury that a conviction on this charge required the jury to be convinced beyond a reasonable doubt that the defendant had threatened another person and that he had intended by his conduct to put that person in fear. The court thus linked the element of intent with a criminal purpose. Although the corurt did not reiterate the definition of intent during its charge on threatening, it did explain the intent requirement for a conviction. We conclude that it is not reasonably possible that the jury was misled by the court’s instructions. Accordingly, the defendant’s claim fails to satisfy Golding's third prong.

The judgments are affirmed.

In this opinion the other judges concurred.

       Two of the defendant’s cases were consolidated for trial. The court’s decision to allow consolidation is not an issue in this appeal.

       “Under State v. Golding, supra, 213 Conn. 239-4, 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 magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original; internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 178 n.22, 920 A.2d 236 (2007).

       General Statutes § 53a-134 (a) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged . . . .”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. THEODORE HAWLEY
    (AC 27466)
    Bishop, Lavine and Peters, Js.
    Argued April 19
    officially released July 17, 2007

      Christopher M. Neary, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian J. Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Theodore Hawley, appeals from the judgment of conviction, rendered after a jury trial, of two counts of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1) and (5). On appeal, the defendant claims that the trial court improperly (1) refused to give a jury instruction on self-defense despite his request to charge and (2) denied his motion for a judgment of acquittal as to his conviction under § 53a-181 (a) (1). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 1, 2005, the defendant claimed to have been injured when he was arrested in connection with an alleged robbery and was taken to Yale-New Haven Hospital. He was restrained partially on a gurney and under police guard while he was in the emergency room and elsewhere in the hospital. While Daniel Hartman, an emergency room nurse wearing a badge that identified him as such, was transporting the defendant to the X ray waiting room, the defendant uttered the words, “fuck you, leave me alone, let me go, I’m gonna get you.” He also directed profanity toward passersby. While the defendant was waiting to be X rayed, he spat on the gurney, the walls, floor, furniture and equipment in the waiting room. Officer Herbert Sharp of the New Haven police department, who was guarding the defendant, informed hospital personnel of the defendant’s conduct. They ordered the defendant to stop spitting. When the defendant refused, Hartman attempted to place a surgical mask over the defendant’s face, but the defendant promised to bite Hartman, raised his fist and stated, “I will fuck you up.” Sharp became concerned for the safety of hospital personnel. Hartman, Sharp and hospital security personnel placed all four of the defendant’s extremities in restraints, and Hartman placed the surgical mask over the defendant’s face.

Because the defendant refused to cooperate with the X ray technician, no X ray was taken, and the defendant was returned to the emergency room where the attending physician reexamined and discharged him. In the meantime, the surgical mask had been removed from the defendant’s face. About thirty minutes after the mask had been put on the defendant, and subsequently removed, Hartman approached the defendant to give him discharge instructions. The defendant stated to him, “I know where you work, and I’m going to come back for you,” “fuck you,” and, “I’m gonna fuck you up.” Hartman took the defendant’s threats seriously because the defendant did not appear to be under the influence of alcohol or drugs. The defendant then collected phlegm in the back of his throat and spat it on Hartman’s face. Hartman walked away, immediately washed his hands and face and spoke to a physician about the precautionary measures he should take as a result of the defendant’s having spat on him.

The defendant claims that the court improperly failed to give the jury an instruction on self-defense despite his having submitted a request to charge on the issue. “Before the juiy is given an instruction on self-defense . . . there must be some evidentiary foundation for it. A jury instruction on self-defense is not available to a defendant merely for the asking. The defendant [is] only . . . entitled to a jury instruction on his theory of self-defense if he . . . presents] applicable evidence no matter how weak or incredible .... However low the evidentiary standard may be, it is nonetheless a threshold the defendant must cross. The defendant may not ask the court to boost him over the sill upon speculation and conjecture.” (Internal quotation marks omitted.) State v. Wright, 77 Conn. App. 80, 89, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003). The defendant did not testify at trial or otherwise present evidence of self-defense. In the absence of any evidence to support a claim of self-defense, there was no reason for the court to give the requested instruction.

The defendant also claims that the court improperly denied his motion for a judgment of acquittal with respect to § 53a-181 (a) (1) because spitting is not violent behavior and, because he was strapped to the gurney, he could not engage in violent or tumultuous behavior. General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .”

A court may “look for guidance to the construction given by [our Supreme Court] to identical language contained” in other statutes. State v. Szymkiewicz, 237 Conn. 613, 618, 678 A.2d 473 (1996). “[T]he language of subdivision (1) of General Statutes § 53a-181a (a) . . . evinces a legislative intent to proscribe conduct which actually involves physical violence or portends imminent physical violence.” (Internal quotation marks omitted.) In re Jeremy M., 100 Conn. App. 436, 451, 918 A.2d 944 (2007). “[T]he terms ‘fighting’ and ‘violent’ lend an aspect of physicality to the more nebulous terms ‘tumultuous’ and ‘threatening.’ Thus, [our Supreme Court] conclude[d] that subdivision (1) of [General Statutes] § 53a-182 (a) prohibits physical fighting, and physically violent, threatening or tumultuous behavior.” (Internal quotation marks omitted.) State v. Indrisano, 228 Conn. 795, 812, 640 A.2d 986 (1994). “Tumultuous” has been defined as “riotous” and “turbulent.” State v. Lo Sacco, 12 Conn. App. 481, 490, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987).

Section “53a-181 (a) (1) does not require proof of actual physical contact on the part of the defendant with a victim . . . .” State v. Szymkiewicz, supra, 237 Conn. 620. Spitting itself is a physical act, as it is the application of force to the victim’s body. United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir. 1974). “A person is guilty of assault of . . . emergency medical personnel when ... (5) such person . . . hurls . . . any bodily fluid including, but not limited to . . . saliva at such . . . nurse . . . .” General Statutes § 53a-167c (a).

“[T]he legislature intended the language ‘inconvenience, annoyance, or alarm’ to be that perceived by a reasonable person operating under contemporary community standards.” State v. Indrisano, supra, 228 Conn. 810. Spitting is an unsanitary act; see State v. Spells, 76 Conn. App. 67, 85, 818 A.2d 808 (spitting “an abusive, disrespectful and unsanitary act”), cert. denied, 266 Conn. 901, 832 A.2d 67 (2003); highly likely to spread contagious, sometimes deadly, disease. Spitting on another person is almost universally acknowledged as contemptuous and is calculated to incite others to act in retaliation. See Hitchcock Plaza, Inc. v. Clark, 781 N.Y.S.2d 624, 1 Misc. 3d 906 (A) (2003). The jury, therefore, reasonably could have found that, by spitting on Hartman’s face, the defendant engaged in fighting or violent or tumultuous behavior with the intent to cause annoyance, alarm and inconvenience.

The judgment is affirmed.

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct 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 . . . .”

        United States v. Frizzi, supra, 491 F.2d 1231, concerned 18 U.S.C. § 111, the statute conferring federal jurisdiction over prosecutions for assaulting or otherwise impeding certain federal officers in the performance of their duties.
      The court in that case stated: “We do not think it could be ruled that spitting in the face is not forcible assault, or, more exactly, a battery falling within the statutory description ‘forcibly assaults, resists, opposes, impedes, intimidates or interferes.’ Although minor, it is an application of force to the body of the victim, a bodily contact intentionally highly offensive.” United States v. Frizzi, supra, 491 F.2d 1232.