State v. Martone, 160 Conn.App. 315

Background

Defendant Cheryl Martone, mother of a teenage son, repeatedly visited the residence where her son lived with his father (R.G.) and R.G.’s girlfriend (T.P.) after the parties separated.
R.G. and T.P. told Martone they did not want her at the residence; police officers on multiple occasions told her not to return.
On the son’s sixteenth birthday (Sept. 19, 2011) Martone traveled to the residence, left gifts on the porch and waited nearby; R.G. and T.P. called police and Martone was later arrested.
A jury convicted Martone of criminal trespass in the first degree under Conn. Gen. Stat. § 53a-107(a)(1) (entry or remaining after an order to leave personally communicated by owner/authorized person while knowing she was not privileged).
Martone appealed, raising (1) insufficiency of evidence as to knowledge/notice, (2) erroneous refusal to instruct on simple trespass (an infraction) as a lesser included offense, (3) improper admission of police testimony about prior conduct, and (4) defective jury instructions on "order" and "knowledge." The trial court’s judgment was affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Martone)	Held
Sufficiency of evidence that defendant had been personally ordered not to enter and knew she was not privileged	Evidence (R.G., T.P., multiple officers) showed personal orders and defendant’s admissions; reasonable jury could infer knowledge	State failed to prove beyond reasonable doubt defendant knew she was not privileged or had received a personal order	Affirmed — viewing evidence in favor of prosecution, jury could find both personal communication of order and defendant’s knowledge beyond a reasonable doubt
Whether simple trespass (infraction) is a lesser included offense and whether court should have instructed jury	If an infraction could be lesser included, prosecution argued simple trespass contains an element (no intent to harm property) not in felony trespass	Martone argued the no-intent-to-harm language is not an element and trial court should have given lesser-included instruction	Not reviewable on appeal — defense counsel agreed at trial that simple trespass contained an additional element, thereby prompting the court to deny the charge (invited/waived error)
Admissibility of Officer Nolan’s testimony about prior false abuse complaints and a prior visit	Testimony was admissible to show intent/knowledge and to rebut defendant’s claimed belief she had a privilege to be there; even if improper, any error was harmless given cumulative evidence	Testimony was uncharged misconduct, irrelevant to knowledge/notice, and highly prejudicial	Affirmed — court allowed limited testimony relevant to prior warning; even if admission were improper, defendant failed to show harm given the strength and corroboration of the state’s case
Jury instruction on elements of "order" and "knowledge" — whether instruction should require an express, unequivocal order specifying scope/duration	Jury was adequately instructed using standard definitions; overall charge fairly presented issues	Instruction should have told jury that order must be express, unequivocal, specify parameters and consequences	Affirmed — instructions, considered as a whole and consistent with model jury charges, were sufficient and could not reasonably have misled the jury (Golding review failed)

Key Cases Cited

State v. Kinchen, 243 Conn. 690 (Conn. 1998) (elements required for criminal trespass in the first degree under § 53a-107(a)(1))
State v. Whistnant, 179 Conn. 576 (Conn. 1980) (test for when a defendant is entitled to a lesser included offense instruction)
State v. Golding, 213 Conn. 233 (Conn. 1989) (standard for raising unpreserved constitutional claims on appeal)
State v. Kalil, 314 Conn. 529 (Conn. 2014) (framework for admissibility of uncharged misconduct evidence)
State v. Menditto, 315 Conn. 861 (Conn. 2015) (discussion of categories of illegal conduct: crimes, offenses, violations, infractions)