Kayla M. v. GreeneKayla M. v. Greene
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William J. Ward, for the appellants (defendant in each case).
Kayla M., self-represented, the appellee (plaintiff in each case).
PRESCOTT, J. In these appeals, we are called upon for the first time to interpret
The defendants, Edward Greene (husband) and Susan Greene (wife), appeal from the judgments of the trial court granting the applications of the plaintiff, Kayla M.,2 for orders of civil protection pursuant to
The following facts, as found by the trial court, and procedural history are relevant to our analysis. On March 9, 2015, the plaintiff filed two applications for orders of civil protection, one for each defendant, who were regular customers at the restaurant at which she was employed. In the applications and the attached affidavits, the plaintiff alleged that the defendants stalked her and that she felt threatened by them.3 The court issued two ex parte civil protection orders, which prohibited the defendants from contact with the plaintiff, including indirect contact through a third party, and coming within 100 yards of the plaintiff. The ex parte orders were to expire on March 19, 2015, the day on which the hearing on the applications for protection orders was held.
At the hearing, the court heard testimony from the plaintiff and the defendants. The court credited the plaintiff‘s testimony, as well as her statements in her affidavit attached to the applications.4 On the basis of this testimony, the court found the following facts, which the defendants do not challenge:5 “[The defendants] first came to know the [plaintiff] approximately two to two and one-half years ago, when they patronized the restaurant where the [plaintiff] was employed as a member of the waitstaff. . . .
“The [plaintiff] is a single mother of two young daughters, and the [defendants] took an interest in the [plaintiff‘s] well being, on at least one occasion helping her wrap Christmas presents for her daughters. Eventually,
“In July, 2014, the [husband‘s] communications with the [plaintiff] grew increasingly inappropriate, beginning with an electronic message comment he posted about a Facebook picture of the [plaintiff], in which she was wearing a bathing suit. The [plaintiff] testified, and the court credits her testimony, that the [husband] asked the [plaintiff] to provide him with nude photographs of her. The [plaintiff] refused to do so. The [husband], when questioned about this issue, testified that he ‘may’ have requested nude photographs of the [plaintiff] ‘as a joke.’ The court does not credit the claim that the request for nude photographs was intended as ‘a joke.‘” The court further found: “The [wife], when questioned about this issue, testified that she became aware of her husband‘s request for the nude photographs of the [plaintiff], but she expressed indifference to that conduct.
“The [husband] continued to send messages to the [plaintiff], which she ignored, hoping he would thereby understand that she did not wish to communicate with him. She followed that course of action because she was fully cognizant of the fact that [the defendants were] customers at her place of employment.
“[The husband] did not cease his interest in the [plaintiff]. He came to her place of employment and inquired of other staff members as to the [plaintiff‘s] home address, he asked her why her marriage had failed, and whether her children had the same biological father. The [plaintiff], at or about that point, blocked the [defendants] on Facebook. [The husband] persisted in reaching out to the [plaintiff], using e-mail, and asking, in a January 1, 2015 e-mail, why the applicant had taken the latter action. The [husband] indicated, in that e-mail, that both [the husband and the wife] were puzzled and hurt because the [plaintiff] had blocked them on Facebook. The [defendants] thereafter came to the restaurant [where the plaintiff worked] and left a letter expressing their upset at the [plaintiff‘s] effort to cease communications with them, and leaving money in an envelope for the [plaintiff]. On February 22, 2015, [the husband] sent an e-mail to the [plaintiff] stating that [the defendants] were at the restaurant . . . . The applicant ignored the latter message.”
“On March 7, 2015, the [defendants] again came to the restaurant. [The defendants] walked up behind the [plaintiff], [and] the [husband] grabbed the [plaintiff‘s] arm ‘very hard,’ and then continued on to the restaurant
The court also found that the wife had “no recognition of the wrongfulness of her conduct or her husband‘s conduct, and that she intends to continue to frequent the [plaintiff‘s] place of employment, absent an order of protection barring her from doing so.” Furthermore, the court did not credit the husband‘s testimony that he had no intention to communicate or interact with the plaintiff again; rather, the court found that he was “unnaturally obsessed” with the [plaintiff] and that he has no recognition of the wrongfulness of his conduct.”
The court concluded that there were reasonable grounds to believe that the defendants had engaged in conduct that constituted the crime of stalking in the second and third degrees and that they would continue to engage in such conduct in the absence of civil protection orders. The court granted the plaintiff‘s applications for orders of civil protection against both defendants. The orders expire on March 19, 2016. This appeal followed. Additional facts with be set forth as necessary.
I
The defendants first claim that the court improperly interpreted
The defendants’ claim raises a question of statutory interpretation. “[I]ssues of statutory construction raise questions of law, over which we exercise plenary review. . . . 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 mean-
Section
“(b) The application shall be accompanied by an affidavit made by the applicant under oath that includes a statement of the specific facts that form the basis for relief. Upon receipt of the application, if the allegations set forth in the affidavit meet the requirements of subsection (a) of this section, the court shall schedule a hearing not later than fourteen days from the date of the application. . . . If the court finds that there are reasonable grounds to believe that the respondent has committed acts constituting grounds for issuance of an order under this section and will continue to commit such acts or acts designed to intimidate or retaliate against the applicant, the court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant. . . .” (Emphasis added.)
We conclude that a literal construction of “and” in
Our Supreme Court has held that the term “and” may be construed to mean “or,” especially if construing “and” in the conjunctive would lead to an illogical or unreasonable result. See Commission of Hospitals & Health Care v. Lakoff, 214 Conn. 321, 329-30, 572 A.2d 316 (1990) (“[A]nd may be construed to mean or. . . . Only the construction of and as disjunctive makes the inclusion of [four other provisions] logically consistent . . . . In construing a statute, we will assume the legislature intended to accomplish a reasonable and rational result.” [Citation omitted; internal quotation marks omitted.]); see also Bania v. New Hartford, 138 Conn. 172, 176-78, 83 A.2d 165 (1951).
If we were to construe the legislature‘s use of the word “and” in the conjunctive, as the defendants argue, the inclusion of
In other words, a defendant can only be convicted of stalking in the first degree if he or she committed stalking in the second degree. Thus, if the term “and” in
II
Having determined that the term “and” in
We apply the same standard of review to civil protection orders under
The court found that there were reasonable grounds to believe that the defendants stalked and would continue to stalk the plaintiff in the second degree,6 as described by
“A person acts ‘knowingly’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists . . . .”
A “course of conduct” is defined as “two or more acts, including, but not limited to, acts in which a person directly, indirectly or through a third party, by any action, method, device or means, (1) follows, lies in wait for, monitors, observes, surveils, threatens, harasses, communicates with or sends unwanted gifts to, a person, or (2) interferes with a person‘s property.”
Fear is objectively reasonable if “a reasonable person under the existing circumstances would fear for his or her physical safety.” State v. Russell, 101 Conn. App. 298, 319, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). “To establish a stalking violation, [p]roof of verbal threats or harassing gestures is not essential . . . .” (Internal quotation marks omitted.) Id., 320. “[D]efendants’ obsessive behaviors, even in the absence of threats of physical violence, [may] reason-
Unlike a criminal prosecution for stalking in the second degree in violation of
A
We first address the husband‘s argument that there was insufficient evidence to support the court‘s determination that there were reasonable grounds to believe that he committed acts that constituted stalking as defined by
The following additional facts are necessary to resolve this claim. In its memorandum of decision, the court found “that the [husband] engaged in multiple acts, through electronic media and in person, in which he followed, lay in wait for, monitored, observed, threatened, harassed, and communicated with the [plaintiff]. He knowingly engaged in a course of conduct directed at the [plaintiff] that would cause a reasonable person to fear for such person‘s physical safety.” In making
The husband argues that the court improperly focused on his alleged request for nude photographs from the plaintiff and contends that this by itself does not constitute stalking. In its memorandum of decision, however, the court not only found that the husband had requested nude photographs, but also that he had sent the plaintiff harassing e-mails, came to her place of employment, inquired into the plaintiff‘s personal life, attempted to discover where the plaintiff lived, verbally and physically confronted the plaintiff, and left the plaintiff a letter and a gift of money at her place of employment. Furthermore, the court found that after physically accosting the plaintiff at her place of employment, the husband sent a threatening e-mail to the plaintiff, stating that she was “on very thin ice.” Following this e-mail, the plaintiff, in her affidavit, which the court credited, stated that she felt threatened and was worried about what the husband would do next.
The husband argues that he did not act “knowingly” because he did not know why the plaintiff cut off communication with him or that she feared him. According to the husband, he cannot knowingly engage in a course of conduct that would cause a reasonable person to fear for her physical safety if he did not know that his conduct caused such fear in the plaintiff. We do not agree. The husband did not need to know that the plaintiff herself was actually fearful; the plaintiff was required to prove only that there were reasonable grounds to believe that the husband was aware that his conduct would cause a reasonable person to fear for his or her physical safety. Such awareness can be proven by circumstantial evidence and by the reasonable inferences that can be drawn therefrom. See State v. Torres, supra, 111 Conn. App. 581-82. The court found, on the basis of the plaintiff‘s testimony, that the husband physically accosted the plaintiff, threatened the plaintiff, and requested nude photographs from the plaintiff. On the basis of this evidence, the court could have reasonably inferred that the husband was aware that his actions would cause a reasonable person to fear for her physical safety. Accordingly, there was sufficient evidence to find that reasonable grounds existed to believe that the husband acted “knowingly.”
The husband further argues that his actions did not
As for the husband‘s argument that “a course of conduct” must be predatory in nature, he does not cite to any case law in support of this proposition. To the extent that this court has required a defendant‘s conduct to be predatory in nature as an element of stalking, we note that our case law is limited to interpreting a prior version of
The statute was subsequently amended to broaden its scope. It is no longer limited to “following and lying in wait,” and encompasses a wider variety of conduct. We decline to extend our prior case law to the current statute, which is substantively different from its prior version.
Furthermore, the husband argues that there was insufficient evidence that the plaintiff subjectively feared for her physical safety because she continued to interact with the defendants after he requested the nude photographs from her. We disagree with the husband‘s argument for two reasons. First, as amended,
Finally, the husband argues that there was no evidence presented at the hearing that supported the court‘s finding that he would continue to stalk the plaintiff. The husband contends that because he testified at the hearing that he had no intention of ever communicating with the plaintiff again, there was no evidence in the record to support the court‘s finding that he would continue to stalk the plaintiff.
The court, however, specifically stated that it did not find his testimony credible. Credibility determinations are for the finder of fact and we will not upset them. See State v. DeMarco, 311 Conn. 510, 521 n.4, 88 A.3d 491 (2014) (“the trial court has discretion to reject even uncontested evidence” [internal quotation marks omitted]); State v. Miranda, 260 Conn. 93, 110, 794 A.2d 506 (2000) (“trial judge is the sole arbiter of the credibility of the witnesses” [internal quotation marks omitted]), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). The court further found that the husband was “unnaturally obsessed” with the plaintiff, which the court reasonably could have inferred from the evidence produced at the hearing, including the husband‘s continued attempts to contact the plaintiff and his request for nude photographs of her. On the basis of this “obsession,” the court reasonably inferred that the husband would continue his previous course of conduct.
Although this evidence may or may not have been sufficient to convict the husband of the crime of stalking in the second degree, the court here only had to find that there were reasonable grounds to believe that the husband would continue his course of conduct. Thus, the court‘s factual findings were supported by the record and these findings were sufficient to support the court‘s determination that there were reasonable grounds to believe that the husband would continue his course of conduct. Accordingly, we conclude that the court properly granted the application for an order of civil protection against the husband on the basis of conduct constituting stalking in the second degree.
B
The wife similarly argues that there were not reasonable grounds to believe that she stalked the plaintiff as
The following additional facts are necessary to resolve this claim. In the affidavit attached to the application for a civil protection order, the plaintiff discussed both defendants’ conduct. Although the plaintiff focused on the husband‘s inappropriate request for nude photographs, she also stated that the e-mails and letters that she received from the defendants were consistently worded in the plural: “what did we do,” “we only extended kindness,” and “we‘re so upset you won‘t speak to us.” The plaintiff also averred that the wife was with the husband when he came to the restaurant to physically and verbally confront her and that the wife also confronted her. The plaintiff concluded her affidavit by stating that she felt threatened.
With respect to the application for a civil protection order against the wife, the plaintiff testified at the hearing that even if the husband could not speak to her, “I don‘t know what she‘ll do. . . . It just is an uneasy feeling to know that either one of them can speak with me.” Although the plaintiff never received an inappropriate Facebook message directly from the wife, the wife did know about and condoned the husband‘s inappropriate messages. The wife also acknowledged that “when someone unfriends you on Facebook that‘s an indication that the person no longer wants to communicate with you,” but that she did not stop reaching out to the plaintiff. In addition to knowing about the e-mails that her husband sent the plaintiff, the wife left a letter and a gift of money for the plaintiff at her place of employment.
Furthermore, the wife admitted that without a civil protection order, she would continue to frequent the plaintiff‘s place of employment, although she would first call to ask about the plaintiff‘s whereabouts. According to the court, “[the wife] appeared to be oblivious to the probable effect such inquires would have on the [plaintiff‘s] status as an employee of the restaurant. . . . [The wife] has no recognition of the wrongfulness of her conduct or her husband‘s conduct . . . .”
Thus, the court found that the wife “engaged in multiple acts, through electronic media and in person, directly or indirectly, as well as through a third party (her husband) in which she followed, lay in wait for,
Similar to the husband, the wife argues that she did not act “knowingly” because she did not know why the plaintiff ended communication with her or that she was fearful of her. As we previously discussed, the plaintiff was required only to prove that there were reasonable grounds to believe that the wife was aware that her conduct would cause a reasonable person to fear for her physical safety. Such intention can be proven by circumstantial evidence and by the reasonable inferences that can be drawn therefrom. See State v. Torres, supra, 111 Conn. App. 581-82. The court found, on the basis of the plaintiff‘s testimony, that the wife, through a third party (her husband), sent harassing letters and e-mails, which she was aware of and condoned, to the plaintiff. Although this evidence may not alone be sufficient to establish beyond a reasonable doubt that the wife acted “knowingly,” the court could have reasonably inferred that by indirectly sending harassing and threatening e-mails, the wife knew or should have known that those e-mails would cause a reasonable person to fear for her physical safety.
The wife further argues that her actions did not amount to “a course of conduct” because the only action she took was to request that the plaintiff speak with her and this action was not predatory in nature. The court found, however, that the wife‘s actions were not limited to her requesting that the plaintiff speak with her. The evidence in the record shows that the wife, with and through her husband, sent the plaintiff harassing e-mails. Although the e-mails were sent from the husband‘s e-mail account, they were always written in the plural: “what did we do,” “we only extended kindness,” “we‘re so upset you won‘t speak to us,” and “[we] were happy not to see [the plaintiff].” (Emphasis added.) These e-mails alone are sufficient evidence to establish that there were reasonable grounds to believe that the wife engaged in two or more acts “in which a person directly, indirectly or through a third party . . . (1) . . . threatens, harasses, [or] communicates with . . . a person . . . .” (Emphasis added.)
Finally, the wife argues that there was no evidence presented at the hearing that supported the court‘s finding that she would continue to stalk the plaintiff. The wife contends that her testimony at the hearing shows that although she would continue to frequent the plaintiff‘s place of employment as a customer, she would only do so after calling to ensure that the plaintiff was not working that day. In its discretion, the court did not credit the wife‘s testimony that she wanted no further contact with the plaintiff; rather, the court drew a reasonable inference from this testimony that the wife would continue to harass the plaintiff by coming to her place of employment. We determine that the court‘s factual findings were supported by the record and these findings were sufficient to support the court‘s determination that there were reasonable grounds to believe that the wife would continue her course of conduct.
In light of the foregoing, the court‘s decision to grant the application for a civil protection order against the wife does not contain unsupported findings or reflect a misapplication of the law. Accordingly, we conclude that the court properly granted the application for an order of civil protection against the wife on the basis of behavior constituting stalking in the second degree.
The judgments are affirmed.
In this opinion the other judges concurred.