State v. Meadows
State v. Meadows
Opinion
*290 The defendant, Cody Meadows, was convicted after a jury trial of two counts of criminal violation of a standing criminal protective order in violation of General Statutes § 53a-223a, one count of threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62(a)(2) 1 and one count of threatening in the second degree in violation of § 53a-62(a)(3). On appeal, the defendant claims that (1) the two convictions for violation of the standing criminal protective order violated his protection against double jeopardy, (2) the trial court erroneously instructed the jury as to the second count of violation of a standing criminal protective order, and (3) his conviction under § 53a-62(a)(3) violated his right to freedom of speech under the first amendment to the United States constitution. We disagree and affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On September 1, 2015, the defendant, along with *291 the victim, 2 the mother of his children, appeared before the juvenile court in New Haven for a hearing relating to their children. At the time, the defendant, pursuant to the terms of a standing criminal protective order, was to have no "contact [with the victim] in any manner, including by written, electronic or telephone [communication]" and was not to "assault, threaten, abuse, harass, follow, interfere with, or stalk the [victim]." As an exception, the order provided that "contact with [the victim was] only allowed for purposes of visitation as directed by [the] family court." As the hearing began, the defendant tried to "make small talk" with the victim, who ignored him. According to the victim, the defendant tried to tell her that he loved her and asked her why she had blocked her telephone, but she continued to ignore him and to look toward the judge. At this point, the defendant told the victim, "you're going to have problems when I get home, bitch." The victim then looked at the defendant who mouthed that he was *468 going to "f---ing kill [her]." The victim told the defendant that she could hear him and that he should stop threatening her. The defendant remarked that he was not threatening; thereafter, he stopped trying to converse with the victim. The victim considered the defendant's statements to be real threats, and she was fearful after she heard them.
At the conclusion of the hearing, the defendant met, at the courthouse, with a social worker, Shannon McGinnis. During the meeting, the defendant appeared upset and told McGinnis that "if he's not with [the victim], he's going to make sure nobody else is with her." The defendant then said that, "if [the victim] chooses not to be with him, he will beat the f---ing shit out of her" and would "make her another Tracey *292 Morton." 3 The defendant also said that "[h]e would kill himself or die suicide by cops ...." At this point, McGinnis informed the defendant that his statements were concerning and that she would have to tell others about them; the defendant then stopped making such statements. Afterward, McGinnis met with the victim and informed her that during their meeting the defendant had threatened to hurt the victim. The victim thereafter contacted the state police and, after meeting with a state police officer, signed a statement that had been prepared by the officer. At trial, the victim testified that she believed the threats against her were real and that she had feared the defendant even though he was in prison, where he would remain for seven more months.
The state subsequently charged the defendant in a four count information with two counts of violation of a standing criminal protective order and two counts of threatening in the second degree. After a jury trial, the defendant was convicted on all four counts. This appeal followed.
I
The defendant first claims that his conviction for two counts of violation of a standing criminal protective order violated his right to be free from double jeopardy. He argues that count one of the information, which alleged a violation of the protective order by having contact with the victim, and count two of the information, which alleged a violation of the protective order by threatening and harassing the victim, arose out of the same act. Specifically, the defendant argues that his conversation with the victim inside the courtroom was a "single, continuous, [and] uninterrupted" act, and that it, therefore, cannot be dissected and penalized
*293
as two separate acts. Because the court rendered a judgment of conviction on two counts of violation of a standing criminal protective order resulting from that single conversation, the defendant claims his right against double jeopardy was violated.
4
In support of this argument, the defendant
*469
relies on
Rowe
v.
Superior Court
,
The defendant did not preserve this claim at trial, nor has he asked, on appeal, for review under
State
v.
Golding
,
Counts one and two of the state's long form information respectively charged that the defendant (1) "violate[d] the ... protective order ... by having contact with the protected person, in violation of ... [§] 53a-223a" and (2) that the defendant "violate[d] the ... protective order ... by threatening and harassing the protected person, in violation of ... [§] 53a-223a." Although these counts charge the defendant under the same statute, we conclude that the offenses charged did not arise out of the same act. Our courts have long held that "distinct repetitions of a prohibited act, however closely they may follow each other ... may be punished as separate crimes without offending the double jeopardy clause.... The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.... [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute]." (Internal quotation marks omitted.)
*295
State
v.
Miranda
,
*470 In other words, the fact that a defendant's two separate charges of violation of a standing criminal protective order arise from acts that closely follow one another is not determinative, by itself, of whether they constitute a single criminal offense. Rather, the question is whether each act charged by the state is susceptible of separation into parts which are separate, complete offenses and are thus punishable under the controlling statute. The contact described in the first count is less culpable than the conduct charged in the second. In the first count, the defendant is merely charged with prohibited contact with the victim. In the second, he is charged with threatening and harassing the victim. Each of these charges, based upon a separate act, was a separate offense that led to a separate conviction.
In
State
v.
Miranda
, supra,
In the present case, the defendant's conversation with the victim likewise is separable into distinct acts, each punishable as a separate offense but one of which involves a more culpable conduct than the other. 6 It was one thing for the defendant to tell the victim he loved her; it was another to tell her, a few breaths later, that she was a bitch, whom he would kill when he got home. The defendant first engaged in conversation with the victim, unrelated to visitation with their children, which amounted to contact with a person protected under the standing criminal protective order. The defendant then proceeded to harass the victim and to threaten the victim with death, which amounted to threatening and harassing and violated additional terms of the standing criminal protective order. These two distinct acts, both undertaken by the defendant, were separately punishable under § 53a-223a. By convicting and sentencing the defendant on two separate counts, one for each distinct violation of the protective order, the court did not punish the defendant twice for a single offense. Rather, the court convicted *471 the defendant of two completed and distinct violations of the same statute.
We also consider the defendant's reliance on Rowe and Nixon and conclude that this reliance is misplaced.
*297
In
Rowe
v.
Superior Court
, supra,
In the present case, there is no mandate similar to Yates by our Supreme Court that defines conduct protected under the double jeopardy clause in the context of violating a protective order. Moreover, unlike Rowe , the defendant's conduct in the present case can be dissected into separate and distinct acts prohibited by the same statute, albeit occurring within the same conversation. It is not, therefore, a single continuous criminal offense.
Similarly, we conclude that
Nixon
is inapposite. In
Nixon
, this court concluded that the defendant's rights under the double jeopardy clause were violated by his
*298
conviction of two counts of assault in the second degree, resulting from his stabbing the victim twice.
State
v.
Nixon
, supra,
In the present case, however, the state charged the defendant with two different acts that violated two separate provisions of the standing criminal protective order. Particularly, the defendant's initial words, his attempt to engage in "small talk," and his telling the victim that "he loved her," by themselves, likely would not support a conviction on the state's second count, which alleged a violation of the standing criminal protective order by threatening and harassing the victim. After engaging in this conversation, however, the defendant then went on to threaten to kill the
*472
victim, which constituted a separate act in violation of the protective order. For these reasons, the convictions did not violate the defendant's right to be free from double jeopardy. The acts charged were separate and distinct, and it matters not that they arose from the same conversation.
7
See
State
v.
Miranda
, supra,
The defendant next claims that the trial court erroneously instructed the jury as to the second count of violation of a standing criminal protective order. Specifically, the defendant claims that the trial court provided the jury with the incorrect definition of "harassing conduct," for the second count of violation of a standing criminal protective order. The defendant contends that the court instead should have used the definition set forth in this court's opinion in
State
v.
Larsen
,
The defendant did not object to the court's charge at trial and submitted no request to charge suggesting the language he now argues on appeal was mandated, nor does he now seek review pursuant to
State
v.
Golding
, supra,
In the second count of its information, the state charged the defendant with violation of a standing criminal protective order by "threatening and harassing the
*300
protected person ...." At trial, the court instructed the jury as to this count as follows: "In this case, the state alleges that threatening or harassing the complainant was forbidden by the order, and you have the order. As far as what's the definition of a threat, use the same definition that I'm going to give you on threatening. As far as what's harassing, harassing
is to trouble, worry, or torment
; that's the legal definition.
Trouble, worry, or torment.
A person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. That's general intent. In summary, the state must prove beyond a reasonable doubt (1) that a court issued a standing criminal protective order against the defendant; and (2) the defendant violated a condition of that order; and in count two, we're talking about an allegation that he violated a prohibition in an order that required him not to threaten or harass the complainant." (Emphasis added.)
*473
The plaintiff contends that in using the words "trouble, worry, or torment," the trial court improperly defined the term "harassing" to the jury, which, instead, is defined by the higher standard set forth in
Larsen
. In that case, after a trial to the court, the defendant was convicted of two counts of criminal violation of a protective order, and one count of criminal violation of a restraining order.
State
v.
Larsen
, supra,
Moreover, in using this instruction, the trial court employed the definition of "harass" that more commonly is applied to describe that element of § 53a-223a(c). See, e.g.,
State
v.
Hersey
,
*302 III
The defendant finally claims that his conviction for threatening in the second degree in violation of § 53a-62(a)(3), should be reversed because it constitutes a violation of the first amendment to the United States constitution. That section provides in pertinent part that "[a] person is guilty of threatening in the second degree when ... such person threatens to commit any crime of violence with ... reckless disregard of the risk of causing such terror ...." General Statutes (Rev. to 2015) § 53a-62(a)(3). The defendant argues that pursuant to
*474
Virginia
v.
Black
,
Although the defendant makes this claim for the first time on appeal and does not seek review under
Golding
, we review his claim pursuant to
State
v.
Elson
, supra,
The defendant's claim turns on two cases of the United States Supreme Court,
Virginia
v.
Black
, supra,
As a conceptual matter, we cannot agree with this argument. To be constitutionally valid, a statute must provide at least as much protection as the federal constitution. It follows, therefore, that a statute can provide greater, but not less, protection than the constitution. Concluding that
In
Virginia
v.
Black
, supra,
The language on which the defendant relies is found in part III of
Black
, which upheld the constitutionality of the intent requirement in the Virginia statute. See
*307
In part IV of
Black
, a plurality of four justices went further and found the prima facie provision of the Virginia statute to be unconstitutional on its face. In reaching that conclusion, the plurality noted that "[t]he act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross ... [and] makes no effort to distinguish among these different types of cross burnings."
Virginia
v.
Black
, supra,
*477 Thus the objective standard, which has been the traditional standard in this state for the true threats doctrine, remains valid. Accordingly, § 53a-62(a)(3) is constitutionally sound. 11 Because the *308 defendant's sole challenge to his conviction under § 53a-62(a)(3) was constitutional, our treatment of his claim ends here.
The judgment is affirmed.
In this opinion the other judges concurred.
Number 16-67 of the 2016 Public Acts (P.A. 16-67) amended subsection (a) of § 53a-62 by redesignating the existing subdivisions (2) and (3) as subdivision (2)(A) and (B) without modifying the language of that provision. We refer to the 2015 revision of § 53a-62(a)(3) because that is the statute under which the defendant was charged and convicted.
In accordance with our policy of protecting the privacy interest of the victim of a criminal violation of a protective order, we decline to identify the victim or others through whom the victim's identity may be ascertained.
During deliberations, the jury submitted a note to the trial court asking who Tracey Morton was, whereupon the court responded that there was no evidence in the record from which that question could be answered.
In his appellate brief, the defendant cites to article first, § 9, of the Connecticut constitution, but makes no claim that the double jeopardy protection under our constitution exceeds that provided by the federal constitution. As our appellate courts repeatedly have observed, "the absence of an explicit constitutional double jeopardy provision [in our state constitution] strongly suggests that the incorporated common-law double jeopardy protection mirrors, rather than exceeds, the federal constitutional protection." (Emphasis omitted; internal quotation marks omitted.)
State
v.
Burnell
,
Under the well established principles of
Golding
, as revised in
In re Yasiel R.,
At oral argument before this court, the defendant's counsel cited to our Supreme Court's decision in
State
v.
Bernacki
,
We are also unpersuaded by the defendant's argument that the use of the word "involves" in § 53a-223a(c) signifies the legislature's intent to make the offense punishable only once. A plain reading of the statute reveals no such intent and, given the unambiguous language of the statute, we will not look for further intent of the legislature not expressed within the statute itself. See
Cornelius
v.
Arnold
,
By contrast, Larsen appears to be the only published Connecticut case to cite to the dictionary definition that the defendant in this case invokes as a constitutional requirement.
Contrary to the defendant's assertions, our Supreme Court had the opportunity to examine these issues post-
Elonis
in
State
v.
Pelella
,
Taupier was a case in which all threats directed against the victim were not directly addressed to the victim, but instead, were made to third parties. However, in the case before us, there was direct evidence before the jury from the victim's testimony that the defendant told her that he would kill her. The defendant's conviction was therefore not dependent on other evidence of the defendant's threats against the victim that were voiced to a third-party social worker. We therefore decline the defendant's appellate counsel's postargument suggestion made under Practice Book § 67-10 to review the court's jury charge for plain error, in light of Taupier . Plain error review is a rule of reversibility, which we conclude is inappropriate.
In reaching this conclusion we align with a majority of federal appellate courts that has declined to read
Black
as altering the traditional objective standard. See
United States
v.
Castillo
,
We note additionally that the appellate courts in this state have had the opportunity to consider these questions and to revise our jurisprudence in light of
Black
. See, e.g.,
State
v.
Pelella
, supra,
Reference
- Full Case Name
- STATE of Connecticut v. Cody MEADOWS
- Cited By
- 8 cases
- Status
- Published