text:
    STATE OF CONNECTICUT v. JOHN DUPIGNEY
    (AC 22611)
    West, Landau and McDonald, Js.
    Argued September 25, 2001
    officially released July 22, 2003

      Neal Cone, senior assistant 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 David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, John Dupigney, appeals from the judgment of conviction, following concurrent jury and court trials, of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The defendant claims that (1) the court improperly allowed the admission of hearsay testimony in violation of his state constitutional right to confront witnesses, and (2) the prosecutor’s closing argument improperly infringed on the defendant’s state and federal constitutional rights to counsel by casting aspersion on the attorney-client relationship. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Morris Lewis, the victim, and Herbert Dupigney, the defendant’s brother, were partners in an illegal drug selling enterprise in New Haven. The drug sales were conducted primarily at 304 Winthrop Avenue. Other members of the operation included Nick Padmore, an individuals known to the participants in the trial only as “Ebony” and Eric Raven. In December, 1994, following the victim’s incarceration, the defendant moved from Boston to New Haven to assist his brother in the drug operation. The defendant also enlisted an acquaintance from Boston, Derrick D’Abreau, to help with the drug sales. D’Abreau moved to New Haven in the beginning of January, 1995.

The victim was released from jail on January 23,1995. That day, the victim telephoned Herbert Dupigney at the home of Carlotta Grinman. Grinman overheard the defendant tell his brother that that the victim “was not going get a . . . thing.”

On January 24,1995, at about 9:30 p.m., the victim met with the defendant, the defendant’s brother, Herbert Dupigney, D’Abreau, Padmore, Raven and “Ebony” at 304 Winthrop Avenue. Upon his arrival at the building, the victim told everybody to leave because that was his location to sell drugs. As the argument escalated, the victim slapped the defendant and threw a chair at him. The victim then broke a bottle and attempted to attack the defendant. D’Abreau and Raven retreated to a turquoise Dodge Neon. The victim then started swiping the bottle at the occupants of the vehicle through one of its open windows. While Herbert Dupigney attempted to calm the victim and get him away from the car, the defendant inquired if anybody had a gun. In response, D’Abreau gave the defendant a .380 caliber pistol. The defendant then pointed the gun at the victim and told him to back off.

Herbert Dupigney and the defendant then entered the turquoise Dodge Neon and left the scene. The group proceeded to Eric’s apartment at 202 Sherman Avenue. The defendant was visibly upset, and stated that the victim was getting on his nerves and that he was going to kill him. After a few minutes, the defendant and his brother left.

The defendant and his brother rejoined Erie and DAbreau at 202 Sherman Avenue approximately one hour later. Between 11:15 p.m. and 11:30 p.m., all four individuals proceeded to 300 Winthrop Avenue, where the drug operation had rented a fourth floor room facing Winthrop Avenue. At that time, the victim was playing dice with Padmore and “Ebony” in front of 304 Winthrop Avenue. Herbert Dupigney went down to the street to try to smooth things over with the victim. It was understood that if the attempt at reconciliation was unsuccessful, then the victim would be shot. The defendant, Eric and D’Abreau observed the scene from the apartment’s window. After a few minutes of conversation between the parties and with no overt indication that an accord had been reached, the victim, Padmore and “Ebony” walked off in the direction of Edgewood Avenue. Herbert Dupigney called out to “Ebony.” After “Ebony” started to return, the defendant and Eric abruptly left the apartment.

As the victim and Padmore approached the comer of Winthrop Avenue and Edgewood Avenue, the turquoise Dodge Neon approached them. The defendant exited the vehicle and fired several shots at the victim. A brief straggle ensued, after which the defendant fired more shots at the victim. The victim died of his wounds shortly thereafter.

The defendant was charged with one count of murder in violation of § 53a-54a, one count of carrying a pistol without a permit in violation of § 29-35 and one count of criminal possession of a pistol or revolver in violation of § 53a-217c. The defendant pleaded not guilty to all three counts and elected to be tried to the jury on the charges of murder and carrying a pistol without a permit, and to the court on the remaining charge. All of the counts were tried concurrently. On March 31, 2000, the defendant was found guilty on all three counts and later was sentenced to a total effective term of seventy years incarceration. This appeal followed.

I

The defendant first claims that the court improperly admitted hearsay testimony pursuant to the excited utterance exception to the hearsay rule in violation of his right to confront witnesses under the Connecticut constitution. Specifically, the defendant claims that evidence may not be admitted pursuant to the excited utterance exception to the hearsay rule when the hearsay declarant is available to testify. The state conceded that the hearsay declarant was available to testify, but argues that unavailability is not a requirement for the admission of such hearsay evidence.

In this case, the challenged evidence concerns the identification of the person who shot the victim as “Herbie’s brother” by the aunt of one of the testifying witnesses. During trial, that witness, Aisha Wilson, identified the defendant as the one who had argued with and later shot the victim.

On direct examination, Wilson testified that at approximately 9:30 on the evening of January 24, 1995, she witnessed the victim and three other people engaged in an argument outside her building. Wilson was able to identify two of those people as Herbert Dupigney and an individual known to her only as “Ebony.” She recognized the third individual as someone whom she had seen in the neighborhood on a couple of earlier occasions, although she did not know his name. Her aunt told her that the third individual was Herbert Dupigney’s brother.

The victim was yelling at the defendant, “Just shoot me, just shoot me.” As the argument progressed, the victim broke a bottle and kicked over a chair. The victim then went after the defendant with the broken bottle. Thereafter, the defendant and his brother entered a turquoise colored car, while “Ebony” remained behind trying to calm the victim.

Later that same evening, at approximately 11:15 p.m., Wilson heard someone outside her apartment building yelling, “Help, help. Fire, fire.” When she looked out of the window, she saw the victim bleeding and walking in the middle of the street. The same turquoise colored car in which the defendant and his brother previously had departed then returned. The individual that had been identified as Herbert Dupigney’s brother, and whom she identified at trial as the defendant, exited the car and shot the victim.

Wilson later testified on cross-examination that she could not see the shooter’s face from the apartment. She stated, however, that the shooter was wearing the same clothing as she had seen “Herbie’s brother” wearing and that he arrived in the same car in which the defendant had departed earlier that evening. On redirect examination, Wilson then testified that she and her aunt had witnessed the shooting and the events leading to it from the window of the apartment in which they lived. Wilson testified that her aunt identified the shooter as Herbie’s brother.

When the state asked Wilson what the aunt had said regarding the identity of the shooter, the defense objected, arguing that it was inadmissible hearsay. The prosecution argued that the statement was admissible as an excited utterance. The court overruled the defendant’s objection. The state then asked Wilson, “And during the time of the shooting, did your aunt say anything to you about who the shooter was?” The witness replied, “She identified him as Herbie’s brother.”

During final argument, defense counsel argued that Wilson’s identification of the defendant was based, in part, on the fact that “someone, Wilson’s aunt, said ‘the person was Herbie’s brother.’ ” Defense counsel also stated that Wilson’s identification was based on the leather jacket that the defendant was wearing when he earlier argued with Lewis, the jacket worn by the person who had later shot Lewis and the statement that “[Wilson’s] aunt said it was Herbie’s brother.”

As part of the defense strategy, defense counsel asked Wilson, who did not know the defendant, if she had learned from someone who shot Lewis. That broad question and its answer could be subject to many interpretations, as was later developed in the testimony. On recross-examination, defense counsel later elicited from Wilson that her aunt had twice identified Herbert Dupigney’s brother — earlier on the evening in question, when the defendant and the victim had a violent argument, after which the defendant drove away, and later that same evening when the defendant and others returned in the same car, and a passenger from that vehicle repeatedly shot the victim.

The United States Supreme Court has held that the admission into evidence of a spontaneous declaration does not violate the federal constitution’s confrontation clause. See White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992). As the court has stated, there can be no doubt that the spontaneous utterance or the spontaneous declaration exception to the hearsay rule is “firmly rooted,” carrying sufficient indicia of reliability to satisfy the reliability requirement of the confrontation clause. Id., 355 n.8.

Our Supreme Court has recognized that irrespective of the hearsay declarant’s availability, evidence admitted under a firmly rooted exception to the hearsay rule does not violate the federal constitution’s guaranteed right to confront one’s accusers. See State v. Damon, 214 Conn. 146, 159, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). We recognize that the unavailability of the declarant is not a prerequisite for the admission of a spontaneous utterance or declaration under the Connecticut rules of evidence and that this formulation of the exception to the hearsay rule is firmly rooted in Connecticut law. See State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); see also Conn. Code Evid. § 8-3 (2); State v. Westberry, 68 Conn. App. 622, 627, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.1, p. 373.

In the present case, the defendant has grounded his confrontation claim on article first, § 8, of the constitution of Connecticut, in addition to the federal constitution. The specific question of whether, when it has not been established that the hearsay declarant is unavailable, the admission of a spontaneous utterance identifying an individual as the perpetrator of a crime, while admissible under our rules of evidence, violates a defendant’s right of confrontation under the constitution of Connecticut is an issue of first impression. Because we conclude that the challenged evidence was merely cumulative of other, properly admitted evidence, we need not reach the constitutional question. See State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002) (“We ... do not engage in addressing constitutional questions unless their resolution is unavoidable. ‘Ordinarily, [constitutional issues are not considered unless absolutely necessary to the decision of a case . . . .’ ”).

Although the admission of an unavailable declarant’s prior statements of identification give rise to confrontation clause issues; State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990); the admission of such evidence is still subject to harmless error analysis. See State v. Casanova, 255 Conn. 581, 595, 767 A.2d 1189 (2001). “If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996), citing State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

“Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) State v. Cuesta, 68 Conn. App. 470, 475, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002), quoting State v. Rolon, 257 Conn. 156, 174, 777 A.2d 604 (2001).

Upon a review of the entire record, we conclude that the hearsay evidence identifying the assailant as Herbert Dupigney’s brother was cumulative of other testimony and, therefore, unlikely to have affected the outcome of the trial. See State v. Dehaney, 261 Conn. 336, 364, 803 A.2d 267 (2002). Padmore contacted the New Haven police shortly after the murder, claiming to have information regarding the crime. The police interviewed him on February 1, 1995. At that time, he provided the police with a taped statement identifying the defendant as the assailant. He also identified the defendant as the shooter from a photographic array and signed the defendant’s photograph. Both the taped statement and the photograph were admitted into evidence under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

D’Abreau testified that he was an eyewitness to the murder. He observed the shooting from the fourth floor windows of the apartment building at 300 Winthrop Street and was able to identify the defendant as the assailant on the basis of the clothing that the defendant was wearing at the time of the murder. In addition to his personal observation, D’Abreau testified that the dispute over drug dealing had been discussed previously and that if the disagreements could not be resolved, the defendant was going to shoot the victim.

Wilson also testified that she was an eyewitness to the shooting. Her aunt’s statement, admitted through Wilson’s testimony, did not provide the basis for Wilson’s testimony that it was the defendant who had murdered the victim. Wilson personally observed the shooting and recognized the assailant as the individual that she had seen arguing with the victim earlier in the evening. Wilson knew that person as an individual that she had seen in the neighborhood on several previous occasions. In court, Wilson identified the defendant as the assailant on the basis of her personal observation of the crime, and she denied that her aunt’s statement had influenced her identification. In sum, the hearsay statement of Wilson’s aunt added little to the evidence before the jury.

Because the challenged hearsay was cumulative of other evidence identifying the defendant as the assailant, and the jury had before it substantial independent evidence from which it could find the defendant guilty of the charged offense, it cannot be said that the admission of the spontaneous utterance affected the result of the trial. See State v. Coltherst, 263 Conn. 478, 519, 820 A.2d 1024 (2003) (exclusion of testimony harmless where it was not reasonably possible such exclusion influenced jury’s determination on ultimate question of defendant’s guilt).

II

The defendant next claims that during closing argument to the jury, the prosecutor improperly commented on the defendant having rehearsed his testimony. The defendant claims that the prosecutor’s remarks were meant to imply that defense counsel and the defendant had conspired to concoct an alibi and that, as a result, those comments infringed on the defendant’s right to counsel as guaranteed by the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We disagree.

We first set forth our standard of review for claims of prosecutorial misconduct alleging the violation of a specific constitutional right. “In deterniimng whether [a] claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper . . . .” (Internal quotation marks omitted.) State v. Hicks, 56 Conn. App. 384, 390, 743 A.2d 640 (2000). If the prosecutor’s comments are found to be improper, we must then determine whether the natural and necessary impact of those comments is such as to violate the specific constitutional right alleged. State v. Morgan, 70 Conn. App. 255, 296, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

We have recognized that “prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial . . . .” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 700, 793 A.2d 226 (2002), quoting State v. Burton, 258 Conn. 153, 165, 778 A.2d 955 (2001). “Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact.” (Internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 545, 553, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

The defendant testified that at the time of the shooting, he was with Diane Butler, away from the scene of the shooting. Butler also had testified to that effect. On cross-examination, Butler stated that she met with the defendant nine times between the time of the killing and the trial. She also testified that at some time or another, she had discussed with the defendant his whereabouts on the day of the shooting.

In support of his claim, the defendant cites the prosecutor’s comments asking the jury to “ [t]hink about when [the defendant] gave his alibi [as] being with Ms. Butler. He clearly was pretty well dam pat on where he was at the exact time of the shooting. He was pretty dam clear about that. Then I started asking him some more questions about the next morning. All of a sudden, there’s these long, long pauses of silence, and he’s looking around. Question after question. What did you do in the morning? What did you do in the afternoon? Where did you go? Where did Ms. Butler go? Lots and lots of silence. He wasn’t ready for that. He wasn’t rehearsed on that.”

Although the defendant attempts to make something sinister of it, the quoted language is, in essence, no more than an attack on the defendant’s credibility as a witness. “While a prosecutor may not interject personal opinion about the credibility or truthfulness of a witness, he may comment on the credibility of the witness as long as the comment reflects reasonable inferences from the evidence adduced at trial.” Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). In the present case, the prosecutor’s comments constituted legitimate argument regarding the defendant’s credibility and were not an expression of personal opinion. See State v. Wickes, 72 Conn. App. 380, 389, 805 A.2d 142 (prosecutor entitled to argue that evidence shows defendant’s testimony not credible), cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002); cf. State v. Cruz, 71 Conn. App. 190, 206, 800 A.2d 1243 (improper for prosecutor to express personal opinion regarding credibility of witnesses), cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

The prosecutor’s closing argument was based on the evidence adduced at trial. The prosecutor discussed the demeanor of the defendant while testifying and the discrepancies between the defendant’s memory regarding where he was and what he did on the night of the murder relative to his weak recollection of events shortly thereafter. The prosecutor merely asked the jury to draw a reasonable inference from the evidence that the defendant’s power of recall was conveniently limited to the time period necessary to establish his alibi. We conclude, therefore, that the prosecutor’s comments regarding the defendant’s credibility were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state also stated at trial that it could not, despite several attempts, locate the declarant and serve a subpoena on her. The declarant’s niece testified that her aunt’s name was Nancy and asked not to give her last name. Later, the niece testified that the aunt no longer lived in the area of the shooting and stated that she would not give her aunt’s address. When asked what she would do if she was ordered by the court to disclose the address, she stated that she did not know what she would do. Defense counsel then asked the court to order disclosure, but later stated that he would bo satisfied if the witness gave the address to the state. When the state advised the court that it would attempt to serve a subpoena on the declarant, the defendant agreed, and the court continued the subpoena for the witness, Aisha Wilson, so she could be brought back. Wilson was not brought back to testify about her aunt’s address, and the declarant did not testify.

       The colloquy was as follows:
      “[Prosecutor]: Ms. Wilson, [defense counsel] asked you questions about someone telling you the shooter was Herbie’s brother?
      “[The Witness]: Yes.
      “[Prosecutor]: Now, while you were observing the shooting, the incident that happened between 11:15 and 11:30, was somebody else in the window with you observing that same shooting?
      “[The Witness]: Yes.
      “[Prosecutor]: And who was that?
      “[The Witness]: That was my aunt.
      “[Prosecutor]: And she was right with you?
      “[The Witness]: Yes, she was.
      “[Prosecutor]: Okay. Now, while you and your aunt were watching the shooting, was her emotional state similar to yours?
      “[The Witness]: Yes.
      “[Prosecutor]: And while that shooting was going on, what did your aunt say in regard to who the shooter was?
      “[Defense Counsel]: I’m going to object, Your Honor.
      “The Court: Sustained.
      “[Prosecutor]: Your Honor, I—
      “The Court: I’ll listen to you .... Go ahead, what’s your—
      “[Prosecutor]: Spontaneous utterance, Your Honor. . . . Essentially, I think it meets all the elements.”
      A discussion was held off the record, and then the prosecutor continued redirect examination.
      “[Prosecutor]: And during the time of the shooting, did your aunt say anything to you about who the shooter was?
      “[The Witness]: Yes.
      “[Prosecutor]: What did she say?
      “[The Witness]: She identified him as Herbie’s brother.
      “[Prosecutor]: As Herbie’s brother?
      “[The Witness]: Yes.”

       At trial, Padmore claimed to have been under the influence of illegal drugs while at 1he New Haven police station and denied any memoiy of either providing the statement to the police or choosing the defendant’s photograph from the array. The police detective who interviewed Padmore at the station testified that he appeared clearheaded and sober while at the station.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “[N]or shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 8, of the constitution of Connecticut, as amended by article twenty-nine of the amendments, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BENJAMIN CHARLES III
    (AC 21771)
    Flynn, Bishop and West, Js.
    Argued February 10
    officially released July 22, 2003

      D. Kirt Westfall, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Laura DeLeo-Denslow, former assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Benjamin Charles III, appeals from the judgment of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of General Statutes (Rev. to 1999) § 53a-110b, now § 53a-223. On appeal, the defendant claims that (1) the court violated his due process rights by failing to charge the jury that intent was a necessary element of the crime of violating a protective order, (2) as applied to him, § 53a-110b, now § 53a-223, is unconstitutionally vague in that it fails to provide notice that inadvertent contact could form the basis for conviction and (3) the evidence was insufficient to support a conviction for criminal violation of a protective order. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the events in this case, the defendant and the victim, Denell Battle, resided together. On February 14,2000, there was an altercation between the defendant and the victim during which the defendant indicated that he was going to return the next day to retrieve his belongings from her apartment. On February 15, when the defendant returned, another altercation with the victim took place. The police arrived shortly thereafter and arrested the defendant, charging him with assault in the third degree in violation of General Statutes § 53a-61 (a) (1), assault in the third degree on a blind person in violation of General Statutes § 53a-61a (a) and breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181 (a) (2).

On February 16,2000, at the defendant’s arraignment, the court issued a protective order forbidding the defendant from, inter alia, threatening or harassing the victim. The order explicitly allowed the defendant to contact the victim to arrange to retrieve his belongings from her home.

After his arrest, the defendant telephoned the victim twice, leaving messages on her voice mail on each occasion. In the first telephone call, the defendant, in language rife with expletives, told the victim, inter alia, that he wanted to be left alone and that he intended to come to her home to retrieve his belongings. In the subsequent call, the defendant apologized for the profanities he had used in reference to the victim in the first call. Additionally, he alluded to her possible criminal culpability concerning another matter. He also repeated his desire to be left alone and his desire for his belongings.

As a result of those telephone calls, the state charged the defendant, in a second information, with two counts

of harassment in the second degree violation of General Statutes § 53a-183 (a) (3) and violation of a protective order in violation of § 53a-110b, now § 53a-223. At the jury trial on those charges, transcripts of the defendant’s two telephone calls were offered into evidence. The jury found the defendant guilty of criminal violation of the protective order and acquitted him of the harassment count. This appeal followed.

I

The defendant claims that the court violated his constitutional right to due process by failing to charge the jury that intent was a necessary element of the crime of violation of a protective order. We disagree.

As a preliminary matter, although that claim was not raised at trial, we may consider it because it implicates a fundamental right. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial. (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987).

For challenges to jury instructions, we employ the following standard of review. “[A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . We do not critically dissect the charge in order to discover possible inaccurate statements. . . . Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial’s outcome.” (Internal quotation marks omitted.) Coniglio v. White, 72 Conn. App. 236, 241, 804 A.2d 990 (2002).

The court delivered, in relevant part, the following instructions on the state’s burden of proof necessary to convict the defendant of violating a protective order:

“For you to find the defendant guilty of this charge, the state must prove the following elements:

“One, that a protective order was issued by the Superior Court in a case pending against the defendant. Two, that the case in which the order entered was one involving family violence. Three, and that the defendant violated said order after said order was entered by the court. . . .

“If you find that a protective order was issued by the Superior Court in the case pending against the defendant, which involves family violence, you must next determine whether the defendant violated the terms of this protective order after said order was entered by the court. The terms of a protective order prohibit, among other things, the defendant from threatening or harassing an alleged victim. It does not prohibit the defendant from contacting her. The state alleges that the defendant has violated said order by threatening or harassing the victim, Denell Battle.

“Harass means to trouble, worry or torment. Threaten means declaring an intention or determination to injure another person or his property by the commission of a threatened crime. A threat imparts the expectation of bodily harm to one’s person or harms to one’s property by the crime threatened, thereby inducing fear or apprehension.

“If you find that the state has proven beyond a reasonable doubt each of the elements of the crime of violation of a protective order, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you should find the defendant not guilty.”

At the core of the defendant’s claim is the assertion that the violation of the protective order statute is a specific intent statute. In sum, the defendant claims that to be found guilty of violation of a protective order, the jury had to have found a specific intent on his part to commit the crime of threatening or harassment. Although the defendant does not challenge the court’s instructions with respect to the threatening aspect, he does claim that the jury instructions concerning the order’s proscription against harassment was inadequate. That claim is founded on the ground that the court did not instruct the jury that to be found guilty of violation of the protective order, the jury would have to conclude that the defendant was guilty of the crime of harassment.

We previously have rejected the claim advanced by the defendant. In State v. Martino, 61 Conn. App. 118, 128, 762 A.2d 6 (2000), we held that no specific intent to harass need be proven to warrant a conviction for violation of a protective order. Having declined to adopt the argument that criminal responsibility for the violation of a protective order requires specific intent, we have not, nevertheless, held that the statute is one of strict liability. Rather, we believe that it is a general intent statute, requiring proof that one charged with its violation intended to perform the activities that constituted a violation of the protection order.

“General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. Where a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts.” (Internal quotation marks omitted.) 21 Am. Jur. 2d, Criminal Law § 127 (1998).

“It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), petition for cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001).

Although the record is plain that the court gave no instruction on general intent, such an instruction is not mandated where a defendant has not put in issue the question of whether his conduct was voluntary. See State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986) (“[o]ur acknowledgement of the fundamental principle that a criminal act must be volitional does not mean that a charge to a jury that omits reference to this principle is constitutionally defective where the evidence at trial contains no suggestion that the defendant’s conduct was involuntary and he has made no such claim either in the trial court or on appeal”), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989). “Until something in the evidence indicates the contrary, the court may presume the defendant intended the prohibited bodily movements that constitute the offense and that he has acted under no duress, unlawful inducement in the nature of entrapment, or lack of requisite mental capacity.” Id., 218. Here, there was no evidence presented by the defendant disclaiming his intent to make the offending telephone calls or to employ the language and leave the messages that were later presented, in transcription, to the jury. Under those circumstances, while the inclusion of an instruction on general intent would have made the instruction more complete, its absence from the charge was neither constitutionally impermissible nor harmful to the defendant.

II

The defendant additionally claims that the violation of the protective order statute, as applied to him, is unconstitutionally vague for its failure to provide notice that inadvertent conduct may form the basis of a crime. He specifically claims that the statute is overbroad, and his assertion that inadvertent conduct may be implicated by the reach of the statute sufficiently implicates a claim of constitutional overbreadth to warrant our response.

The defendant claims that because the court failed to specify the quality of intent required for a finding of guilt under § 53a-110b, now § 53a-223, the court effectively converted the statute into one of strict liability that did not give him fair warning of the conduct it proscribed and put him at risk of arrest for inadvertent conduct. Thus, the defendant claims, the jury was allowed to determine whether he could be convicted of a violation of the protective order on the basis of inadvertent acts or speech. He contends that because the statute as charged allows conviction on the basis of conduct he characterizes as relatively innocuous telephone calls, the statute’s vagueness infringes on first amendment rights. Finally, in that regard, the defendant claims that the court’s failure to give any charge on criminal intent effectively removed the notion of mens rea from the statute, leaving the jury with the impression that the statute was one of strict liability, thereby chilling expression protected by the first amendment.

In response, the state argues that because a protective order issued pursuant to General Statutes § 46b-38c is tailored to address a preexisting family violence situation consistent with the state’s interest in protecting a victim of domestic violence from fear, violence and intimidation, a defendant is placed on notice that he will be held liable for contact with the victim that he can reasonably foresee would have the effect of harassing or threatening the victim. The state argues further that the foreseeability aspect of violation of a protective order by harassing or threatening a victim of domestic violence is analogous to that which removes threats of violence from first amendment protection. We agree.

“A defective instruction on an essential element of the crime charged raises a constitutional issue. An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.” (Internal quotation marks omitted.) State v. Gallichio, 71 Conn. App. 179, 184, 800 A.2d 1261 (2002).

We previously have stated that “[t]he doctrines of vagueness and overbreadth are so closely related that [s]ometimes the two are functionally indistinguishable .... The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment.” (Citation omitted; internal quotation marks omitted.) State v. Ryan, 48 Conn. App. 148, 158, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998). Because of the close kinship of the defendant’s claims that the statute is vague and overbroad, and in the absence of a separate analysis by the defendant of the two claims, we evaluate them together.

The void for vagueness doctrine is based on the principle that “laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.” State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986); State v. Higgins, 74 Conn. App. 473, 488, 811 A.2d 765, cert. denied, 262 Conn. 950, 817 A.2d 110 (2003). It is a concept that flows from federal and state constitutional guarantees of due process, and it requires that “statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited.” State v. Burton, 258 Conn. 153, 158-59, 778 A.2d 955 (2001).

The doctrine embodies two central precepts: “[T]he right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777, 695 A.2d 525 (1997). “If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.” (Internal quotation marks omitted.) Id., 778. “The void for vagueness doctrine accords due process protection in that it requires statutes (1) to provide fair notice of the conduct governed by them and (2) to prescribe minimum guidelines to govern law enforcement.” (Internal quotation marks omitted.) State v. Springmann, 69 Conn. App. 400, 407, 794 A.2d 1071, cert. denied, 260 Conn. 934, 802 A.2d 89 (2002). “[A] party attacking the constitutionality of a validly enacted [statute] bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988).” (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 814, 761 A.2d 705 (2000). When a penal statute implicates rights protected by the first amendment, the statute’s meaning must be capable of precise ascertainment in order to repel a vagueness challenge because “[w]here first amendment rights are at stake, vague laws may cause citizens to avoid constitutionally protected conduct for fear of incurring criminal prosecution.” State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

In assessing the constitutionality of a statute assailed as void for vagueness, our normal inquiry is to test the constitutional viability of the statute when applied to the particular facts at hand. See State v. Springmann, supra, 69 Conn. App. 411. We note that the defendant makes no claim that the statute is facially vague, but rather that it is vague as applied to him in these particular circumstances. We analyze it on that basis.

With those precepts in mind, we begin our constitutional analysis by noting, first, that in pertinent part, a protective order, including the order issued in this case, directs that a defendant “refrain from threatening, harassing, assaulting, molesting, or sexually assaulting the victim.” When assessing a statute that implicates conduct as well as speech in a claim that the statute is overbroad, we are mindful of the standard enunciated by the United States Supreme Court that “[wjhere conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); see also Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980).

Initially, we note that the family violence protection order issued in this instance is narrow in scope. It is directed against one person and on behalf of an identified victim. Thus, it is not broad in its sweep. Additionally, that order issued pursuant to § 46b-38c arose within a preexisting relationship between the victim and the defendant. As such, the family violence protective order serves notice to a defendant that any conduct on his part directed to the named victim that has the reasonably foreseeable effect of harassing or threatening her is proscribed. The messages the defendant left on the victim’s telephone answering machine included the following statements: “You leave me the fuck alone. I ain’t calling on your people and telling no shit. That’s what the fuck is wrong with you. You put third parties in my fucking business. You want bullshit — you’re going to get it,” and “the people from my place, the management, you know, from selling my car sticker. Yeah, they’re gonna be there to lock your ass up on the twenty-third of March when we have to be there at court. I didn’t give your name yet, but I’m thinking about it. According to the government, you have not paid $800 for eighteen months. I got proof of it there because but I got letters in the mail. . . . You don’t give me my stuff, then you’re gonna have problems — you’re gonna have more problems — cause my problems, I’m gonna have is a fine. You’re facing jail, not me. I’m not facing jail. You’re facing jail now — not me.” Given the content of those messages, we believe it was well within the province of the jury to infer that the reasonable, foreseeable effect of those messages on the victim was to harass or to threaten her.

Mindful that we have determined that § 53a-110b, now § 53a-223, is a general intent and not a specific intent statute, we next turn to a consideration of whether that factor renders the statute impermissibly vague as applied in this instance. That is, because we have determined that to prove criminal culpability under § 53a-l 10b, the state need only prove that a defendant engaged in conduct that an actor should reasonably foresee would harass or threaten a victim and, reciprocally, that the state need not prove that the defendant specifically intended his conduct to harass or to threaten a victim, we must assess whether the absence of specific intent as an element in the statute renders it unconstitutionally vague or broad.

We have held that “to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. . . . Under appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity.” (Internal quotation marks omitted.) State v. Payne, 40 Conn. App. 1, 7, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997). In considering the constitutionality of § 53a-183, an allied though not analogous statute, our Supreme Court characterized as proper the trial court’s instruction to the jury: “For purposes of the statute, ‘harass’ means to trouble, worry, torment . . . .” (Internal quotation marks omitted.) State v. Murphy, 254 Conn. 561, 574 n.24, 757 A.2d 1125 (2000). These are the identical terms utilized by the trial court in this instance in its instructions to the jury concerning the portion of the charge of violating a protective order relating to harassment. The record reveals that the court charged the jury that harass means to “trouble, worry or torment.” As we noted in an analogous circumstance, an appellate court’s prior interpretative gloss on the meaning of a term provides a “sufficient core of meaning to remedy any facial vagueness that might otherwise exist.” (Internal quotation marks omitted.) State v. Cummings, 46 Conn. App. 661, 673-74, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

We conclude that the terms of the family violence protective order issued in this instance were adequate to give the defendant fair warning that the act of leaving two expletive and posturing laden messages on the victim’s telephone answering machine would constitute a violation of the order prohibiting him from harassing or threatening her. Under those circumstances, the consequence of the court’s charge was not impermissibly to curtail the defendant’s constitutional right to speech, and the charge that outlined in detail the elements of behavior proscribed by the protective order was neither impermissibly vague nor overbroad.

Ill

We determine now whether there was sufficient evidence before the jury by which it could find beyond a reasonable doubt that the defendant had violated the protective order issued by the court. We conclude that there was sufficient evidence.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Carcare, 75 Conn. App. 756, 778-79, 818 A.2d 53 (2003). “Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994).

On February 16, 2001, the court issued a protective order, pursuant to § 46b-38c (d), which prohibited the defendant from, inter alia, threatening or harassing the victim. The defendant subsequently made two telephone calls to the victim and left messages on both occasions. Transcripts of the two messages were read into the record.

The defendant argues that the state failed to prove its case because the jury returned a verdict of acquittal on the harassment charge. As we previously have noted, a violation of a protective order does not incoiporate the specific intent to harass. See part I; State v. Martino, supra, 61 Conn. App. 128. All that is necessary is a general intent that one intend to perform the activities that constitute the violation. “The elements of those two crimes lack commonality or overlap. Moreover, it is clear from the plain language of the relevant statutes that the legislature intended them to address two completely different concerns. The state could have proven all of the elements of criminal violation of a protective order, yet still have been unable to convict the defendant of harassment in the second degree.” State v. Martino, supra, 128.

On the basis of our review of the record, we conclude that there was sufficient evidence before the jury from which it could conclude that the defendant had violated the protective order issued by the court. The two messages left by the defendant were replete with profanities and thinly disguised threats. For example, in an excerpt from the first message, the defendant stated: “And Donna says you was a sneaky bitch. My people want nothing to do with you. I just want my shit when I come over there with the cops. And you can call anybody else you want. My family know .... Okay. You leave me the fuck alone. . . . You put third parties in my fucking business. You want bullshit — you’re gonna get it. So, you better leave me the fuck alone.” In the second message, the defendant went on to state: “Yeah, they’re gonna be there to lock your ass up on the twenty-third of March when we have to be there at court. . . .You don’t give me my stuff, then you’re gonna have problems. You’re gonna have more problems — cause my problems. I’m gonna have a fine. You’re facing jail, not me.” The tone of the messages was menacing, and the jury could have reasonably concluded that the defendant was threatening or harassing the victim, and, as such, that he had violated the protective order.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-223 (a) provides: “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.”

       The victim had been declared legally blind on the basis of a loss of peripheral vision.

       At trial, the state proceeded on one count of harassment in the second degree, pursuant to General Statutes § 53a-183, and violation of a protective order, pursuant to General Statutes (Rev. to 1999) § 53a-110b.

       See Form JD CR 58, Rev. 3-99, family violence protective order. It is undisputed that the court issued such an order to the defendant.

       By the terms of General Statutes § 53a-223 (a), “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.” We note that in each case, the order is issued for the protection of an identified victim or victims. In the case of General Statutes § 54-lk, such an order is issued to protect a stalking victim; in the case of General Statutes § 54-82r, an order is issued to protect an identified witness in a criminal prosecution; and in the case of General Statutes § 46b-38c, a family violence protective order is issued to protect a named victim who, by statutory definition, is a member of a statutorily defined group.