Case Information
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STATE OF CONNECTICUT JASMINE LAMANTIA
(AC 40157) DiPentima, C. J., and Alvord and Pellegrino, Js. Syllabus Convicted, following a jury trial, of the crimes of interfering with an officer and tampering with a witness, the defendant appealed to this court, claiming that the evidence was insufficient to support her conviction
of those crimes. Following an altercation at a residence involving her boyfriend, R, and M, the defendant sent certain text messages to R in which she asked R to lie to the police regarding the altercation and to make sure their stories matched. Held : 1. The evidence was insufficient to support the defendant’s conviction of interfering with an officer; a conviction of that offense required evidence
that the defendant obstructed, resisted, hindered, or endangered a peace officer while the officer was in the performance of his duties, and here, the communications that formed the basis for the defendant’s conviction were nonviolent and nonthreatening text messages directed to R that were sent in order to induce R to report to a police officer a version of events concerning the altercation that matched her own prior state- ments to the police, which messages did not constitute physical conduct or amount to fighting words that inflicted injury or tended to incite an immediate breach of peace for purposes of the crime of interfering with an officer. 2. The defendant’s claim that the state failed to prove that she had the
specific intent to influence a witness at an official proceeding by sending the text messages to R was unavailing, the evidence having been suffi- cient to support her conviction of tampering with a witness in violation of statute (§ 53a-151), which applies to any conduct intended to induce a witness to testify falsely or to refrain from testifying in an official proceeding, and to conduct intentionally undertaken to undermine the veracity of the testimony given by a witness; although the defendant claimed that it was not probable that a criminal court proceeding would occur arising out of the altercation in which R would testify, the term official proceeding as used in the statute was not limited to a prosecution of R, and the jury reasonably could have found that the defendant tampered with R by sending him the text messages shortly after his altercation with M, as the defendant’s text messages encouraged R to lie to an officer and evinced that the defendant was aware of the officer’s investigation of the altercation, and the jury could have concluded that the defendant believed than an official proceeding against her or the other participants in the altercation probably would result therefrom. Argued January 9—officially released May 8, 2018
Procedural History Substitute information charging the defendant with the crimes of interfering with a police officer and tam- pering with a witness, brought to the Superior Court in the judicial district of New London, geographical area twenty-one, and tried to a jury before the court, A. Hadden, J. ; verdict and judgment of guilty, from which the defendant appealed to this court. Reversed in part; judgment directed; further proceedings .
Conrad O. Seifert , for the appellant (defendant). Melissa L. Streeto , senior assistant state’s attorney, with whom, on the brief, were Michael Regan , state’s attorney, and Christa L. Baker , assistant state’s attor- ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Jasmine Lamantia, appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a and tampering with a witness in violation of General Statutes § 53a-151. On appeal, the defendant claims that the evidence was insufficient to support her conviction for these offenses. We agree with the defendant with respect to the interfer- ing with an officer count, but disagree as to the tamper- ing with a witness count. Accordingly, we reverse in part and affirm in part the judgment of the trial court.
The jury reasonably could have found the following facts in support of the verdict. On the evening of July 24, 2015, Earl F. Babcock and Jason Rajewski spent three or four hours socializing at a bar in Norwich. At that time, Rajewski was involved romantically with the defendant. At some point that evening, the defendant arrived at the bar. After midnight, Babcock and Rajew- ski followed the defendant to a house located at 18 Bunny Drive in Preston. At this location, some teenag- ers, including the defendant’s son, Joshua Bivens, were having a party. Upon her arrival, the defendant parked her car and immediately ran into house. Babcock parked his car and remained outside with Rajewski.
David Moulson, the defendant’s former boyfriend, [2] drove his vehicle into the driveway, and directed the headlights at Babcock and Rajewski. Moulson, exited his car and ran toward them while swinging his arms. Babcock fell over backwards, as he was ‘‘disoriented’’ by the headlights shining in his eyes. Moulson and Rajewski engaged in a verbal and physical altercation that ended with Rajewski striking Moulson with his right hand and Moulson bleeding from his face. Moulson ran into the house and called the police. Babcock and Rajewski left after hearing from the defendant about Moulson’s phone call. Five minutes later, Babcock dropped Rajewski off at his house, and then pro- ceeded home.
Jonathan Baker, a Connecticut state trooper, received a dispatch to 18 Bunny Drive for an active disturbance at approximately 2:30 a.m. Baker spoke with Moulson in the presence of the defendant. Moulson claimed that two males, one of whom he identified as Rajewski, had assaulted him as he exited his vehicle. Baker obtained an address for Rajewski, and proceeded to that address to continue the investigation.
At Rajewski’s residence, Baker knocked on the door. Rajewski indicated that he knew why Baker was there and then presented his cell phone to Baker. Rajewski asked Baker to read the text messages that he had received from the defendant. Baker read the text con- versation and concluded that the defendant had requested that Rajewski lie to him. Rajewski then *4 received a call from Babcock and permitted Baker to answer his phone. Baker took Rajewski into custody, drove him to the state police barracks for processing, and then went to Babcock’s house. Following a conver- sation, Baker arrested Babcock and transported him to the barracks for processing.
Later that morning, the defendant arrived at the bar- racks to pick up Moulson, who also had been arrested. Baker confronted the defendant about the text mes- sages that she had sent to Rajewski, and then placed her under arrest. The defendant subsequently was charged, tried, and convicted of interfering with a police officer in violation of § 53a-167a (a) and tampering with a wit- ness in violation of § 53-151 (a). The court imposed a concurrent sentence for each count of one year incar- ceration, execution suspended, and two years of proba- tion. This appeal followed. Additional facts will be set forth as necessary.
On appeal, the defendant claims that the evidence was insufficient to sustain her conviction. We begin by setting forth our well established standard of review. ‘‘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 reason- ably 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 defen- dant 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 multi- tude 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 reason- able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.)
State
v.
Crespo
,
I
We first address the defendant’s claim that the evi-
dence was insufficient to support her conviction of
interfering with a police officer. The defendant argues
that our decision in v. , 152 Conn. App.
590,
Section 53a-167a (a) provides in relevant part: ‘‘A
person is guilty of interfering with an officer when such
person obstructs, resists, hinders or endangers any
peace officer . . . in the performance of such peace
officer’s . . . duties.’’ Accordingly, ‘‘[t]he elements of
this crime . . . are (1) a person obstructs, resists, hin-
ders, or endangers, (2) a peace officer, (3) while the
officer is in the performance of his or her duties.’’
State
Wearing
,
In
Briggs
,
On appeal, the defendant contends that the communi- cation that formed the basis for her conviction of interfering with a police officer was nonviolent and nonthreatening text messages directed to Rajewski, not Baker. [3] The following additional facts are necessary for our discussion. In the course of his investigation, Baker left Bunny Drive and proceeded to Rajewski’s resi- dence. Baker knocked on the door and asked if Rajew- ski knew why he was there. Rajewski responded affirmatively, and then handed Baker his cell phone. Rajewski requested that Baker read the text messages that he recently had received from the defendant.
Baker testified that the text messages were ‘‘a conver- sation between [Rajewski] and [the defendant] about how their stories have to match and have to be on the same pages and the cops were coming and a couple of other things.’’ Baker then explained that he had recorded the text message conversation into his police report. The defendant first texted Rajewski telling him that the ‘‘cops are coming,’’ that he should ‘‘make sure [he was] bloody’’ and that she had stated to Baker that Moulson was abusive to her. Rajewski simply replied, ‘‘ok.’’ The defendant then texted that Rajewski should wait outside because the police were coming to his residence and that he should delete this text conversa- tion. Next, the defendant asked Rajewski to tell the police that Moulson had ‘‘stalked’’ her, that Rajewski should claim to have been involved in an altercation at a bar, had been bleeding when he arrived at Bunny Drive, and had followed her to Bunny Drive only because he loved the defendant. Finally, the defendant texted Rajewski that they needed ‘‘to stick with the same story’’ and that their statements needed ‘‘to match.’’
Rajewski replied that he was going to tell the truth, specifically, that Moulson had ‘‘tried to kick [his] ass, so [Rajewski] beat him up.’’ Rajewski’s text messages conveyed that he was upset, and that ‘‘enough is enough.’’ The defendant responded with a question mark, and then that his story needed to match hers. After additional conversation via text message, Rajew- ski again stated that ‘‘he was not going to tell a story, he’s just going to tell what happened.’’
Our analysis begins with
Williams
, 205 Conn.
456, 459,
Our Supreme Court rejected the defendant’s claim of insufficient evidence as to his conviction for violating § 53a-167a. Id., 468–69. Next, it considered his claim that § 53a-167a was unconstitutionally vague and vio- lated due process of law. Id., 469. In rejecting this claim, the court explained that this statute was confined ‘‘to conduct that amounts to meddling in or hampering the activities of the police in the performance of their duties. . . . Furthermore, the conduct that the statute proscribes is limited to action intended to obstruct the police in the performance of their duties.’’ (Citations omitted.) Id., 471. The court also recognized that certain acts of ‘‘verbal resistance’’ fell within the ambit of § 53a- 167a. Id. ‘‘The statute’s requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer’s authority or protests his or her action.’’ Id., 472.
The court then turned to the defendant’s claim that § 53a-167a was fatally overbroad. Id., 472–74. First, it distinguished § 53a-167a from a Texas ordinance that the United States Supreme Court had determined to be overbroad. Id., 472–73. It then stated: ‘‘Moreover, unlike the United States Supreme Court, this court has the power to construe state statutes narrowly to comport with the constitutional right of free speech. . . . To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace . . . . By its terms, § 53a-167a is directed only at conduct that interferes with police and firemen in the performance of their duties. As we have said earlier, it encompasses only interference that is intentional. . . . This limiting construction, which we deem to be fully consistent with the intent of the legislature, preserves the statute’s purpose to proscribe core criminal conduct that is not constitutionally protected.’’ (Citations omit- ted; emphasis added; footnotes omitted; internal quota- tion marks omitted.) Id., 473–74.
Approximately twenty-seven years later, in v.
, supra,
The defendant in
Sabato
claimed that the evidence
was insufficient to sustain his conviction for attempt
to interfere with a police officer. ‘‘First, he argues that
§ 53a-167a does not proscribe physical or verbal con-
duct directed against a third party . . . . Second, he
contends that applying § 53a-167a to his conduct, which
was outside the presence of a police officer, would
render the statute void for vagueness.’’ Id., 595. After
oral argument, we ordered the parties to submit supple-
mental briefs on the applicability of
State
v.
Williams
,
supra,
We concluded that
State
v.
Williams
, supra, 205
Conn. 456, controlled the appeal.
State Sabato
, supra,
Our Supreme Court granted the petitions for certifica-
tion filed by the state and the defendant. ,
The court reviewed its prior interpretation of § 53a-
167a in
Williams
, supra,
The court in Sabato rejected the state’s true threats argument on the basis that it violated the theory of the case, and thus, due process. Id., 742–45. In its analysis, the court expressly noted that the prosecutor had con- tended that the defendant’s statement to the third party to refrain from providing a statement to the police com- prised the actus reus of the offense. Id., 745. ‘‘ As we have explained, however, and as the state concedes, § 53a-167a does not proscribe such verbal conduct, and, therefore, the defendant’s conviction under that statute cannot stand .’’ (Emphasis added.) Id., 746.
The state attempts to distinguish the present case
from the
Sabato
opinions and
Williams
, supra,
We are not persuaded by the state’s interpretation of
Williams
, supra,
Additionally, we are not persuaded by the state’s attempt to distinguish the present case from the Sabato decisions. Neither this court nor our Supreme Court based its decision on whether there was evidence that the defendant specifically intended to interfere with a police officer when he sent his text message to the third party. Rather, the focus of both courts was on the fact that the verbal conduct did not amount to fighting words and could not constitute a violation of § 53a-167a.
The state also directs us to
Williams
, 110
Conn. App. 778,
On appeal, the defendant claimed, inter alia, that the
evidence was insufficient to support his conviction for
violating § 53a-167a (a). Id., 793. Relying on our
Supreme Court’s decision in
Aloi
, 280 Conn.
824,
At first blush,
Williams
, supra, 110 Conn.
App. 778, appears to support the state’s claim that verbal
conduct specifically intended to interfere with a police
officer constitutes a violation of § 53a-167a. Our opin-
ion, however, did not specifically address the question
of whether the verbal conduct of the defendant consti-
*11
tuted a violation of § 53a-167a. Id., 793–98. Furthermore,
a review of the briefs filed in that case reveals that
the defendant argued that the testimony of one officer
should have been discounted, the defendant provided
his proper social security number and address to the
police, the defendant followed the commands of the
arresting sergeant and never resisted or became unco-
operative.
State
v.
Williams
, Conn. Appellate Court
Record & Briefs, May-June Term, 2008, Defendant’s
Brief pp.13–15. In other words, the defendant in
State
v.
Williams
, supra,
The sole basis for the defendant’s conviction for vio- lating § 53a-167a was the text messages sent to Rajew- ski. These words, which cannot be construed as fighting words, were not proscribed by that statute. As a result, we conclude that there was insufficient evidence to sustain her conviction for interfering with a police officer.
II
The defendant next claims that the evidence was
insufficient to support her conviction of tampering with
a witness. Specifically, she argues that the state failed
to prove that she sent the text messages to Rajewski
[7]
with the specific intent required for a conviction of
§ 53a-151 (a), that is, the intent to influence a witness
at an official proceeding. See
Ortiz
, 312 Conn.
551, 554,
Section 53a-151 (a) provides: ‘‘A person is guilty of
tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he
induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning
him to testify or absent himself from any official pro-
ceeding.’’ See also
Bennett-Gibson
, 84 Conn.
App. 48, 52–53,
Our Supreme Court has stated that this statutory
language ‘‘plainly warns potential perpetrators that the
statute applies to any conduct that is intended to prompt
a witness to testify falsely or to refrain from testifying
in an official proceeding that the perpetrator believes
to be pending or imminent.’’
Cavallo
, 200 Conn.
*12
664, 668,
Before addressing the specific arguments in this case,
it is helpful to review our Supreme Court’s decision in
Ortiz
, supra,
The police considered the defendant as a suspect in the death of Labbadia, and went to speak with the defendant’s girlfriend, Kristen Quinn. Id., 554–55. At this time, Quinn did not provide the police with any useful information for the investigation. Id., 555. She did, how- ever, inform the defendant that she had been in contact with the police, and did not want to be involved with him because she suspected his involvement in Labbadia’s death. Id.
One week later, the defendant, intoxicated and sui- cidal, told Middletown police officers that he ‘‘was tired of being accused of . . . something that he [did not] do.’’ (Internal quotation marks omitted.) Id., 555. There- after, the defendant went to Quinn’s home and con- fessed to killing Labbadia with a hunting knife following his conversation with Bonita. Id., 557. Quinn then pro- vided this information to the police. Id.
Approximately seven weeks later, the defendant returned to Quinn’s home, this time in possession of a small handgun. Id. ‘‘The defendant told Quinn that he had the gun for ‘insurance’ if she told ‘the cops about what he said about [Labbadia].’ The defendant said that *13 if Quinn spoke to the police ‘[her] house was going to go up in smoke . . . .’ The defendant stated that he knew where Quinn’s grandparents lived. The defendant told Quinn that he was going to ‘put [her down] on [her] knees, put the gun to [her] head and scare [her] straight.’ ’’ Id.
The defendant in Ortiz subsequently was found guilty, inter alia, of tampering with a witness. Id., 558. We affirmed his conviction, and our Supreme Court granted his petition for certification. Id. It interpreted § 53a-151 (a) and concluded that ‘‘a jury may consider a defendant’s attempt to induce a potential witness to lie to police investigators as evidence of his intent to affect that witness’ conduct at a future official proceed- ing.’’ Id., 563. It stated expressly that ‘‘§ 53a-151 (a) applies whenever the defendant believes that an official proceeding will probably occur, even if the police are only at the investigation stage.’’ (Emphasis in the origi- nal.) Id., 568–69. It also explained that the statutory phrase ‘‘about to be instituted’’ signified probability and not temporal proximity. Id., 569. It also provided the following example: ‘‘[W]hen an individual knows that there is significant evidence connecting him to the crime, or, even further, when the individual knows that a witness with relevant information already has spoken with the police, a jury reasonably could infer that the individual believed that the investigation probably would progress into an official proceeding.’’ Id., 570–71.
Next, the court in Ortiz considered the defendant’s sufficiency claim. Id., 572–74. It noted that the defen- dant had confessed to two people that he had killed someone, one of those individuals had been in contact with the police, and the defendant himself, after exhib- iting suicidal behavior, spoke with police officers, including the investigator working on the Labbadia homicide. Id., 572. As a result, the jury had sufficient evidence to find that an official proceeding would be instituted. Id., 572–73. Additionally, based on defen- dant’s threats to Quinn, the jury was free to find that he had intended to induce her to testify falsely or withhold testimony at an official proceeding. Id., 573–74. Accord- ingly, our Supreme Court concluded that the jury rea- sonably could have concluded that the evidence established the defendant’s guilt as to the charge of tampering with a witness beyond a reasonable doubt. Id.
In the present case, the defendant challenges only the requirement that the state prove that she sent text messages to Rajewski with the intent to induce him to testify falsely. Specifically, she contends that it was too speculative for the jury to infer that she possessed the required intent to induce Rajewski to lie or withhold testimony at a future official proceeding at the time she texted him. She also argues that it would have been speculation for the jury to find that Rajewski would in fact testify when a future official proceeding could be *14 resolved via a nolle prosequi, diversionary program or guilty plea. In other words, it simply was not probable that a ‘‘criminal court proceeding’’ would occur in which Rajewski would testify. Finally, she maintains that, at most, the jury could infer that she had attempted to prevent his arrest.
The defendant’s argument suffers from two flaws.
First, she incorrectly assumes that the future official
proceeding was limited to Rajewski’s criminal trial. She
offers no support for this interpretation of § 53a-151
(a). In
Pommer
, supra,
Second, and more importantly, we disagree that the
evidence in the present case was insufficient to support
a finding that ‘‘an official proceeding was pending, or
about to be instituted . . . .’’ Our precedent contra-
dicts the defendant’s argument. In
Foreshaw
,
The state charged the defendant, inter alia, with a
violation of General Statutes (Rev. to 1989) § 53a-155
(a), which provides in relevant part: ‘‘A person is guilty
of tampering with . . . physical evidence if, believing
that an official
proceeding is pending, or about to be
instituted
, he: (1) Alters, destroys, conceals or removes
any record, document or thing with purpose to impair
its verity or availability in such proceeding.’’ (Emphasis
in original.)
Foreshaw
, supra,
On appeal in Foreshaw , the defendant claimed that the state had failed to present sufficient evidence to support her conviction. Id., 549–51. ‘‘In particular, the defendant argues that because she discarded the gun prior to any contact with law enforcement officers or the judicial system, she could not have believed an official proceeding was ‘about to be instituted.’ ’’ Id., 550. Our Supreme Court disagreed, stating: ‘‘It is true that at the time the defendant discarded the gun, no official proceeding had in fact been instituted. The stat- ute, however, speaks to that which is readily apt to *15 come into existence or be contemplated and thus plainly apples to the official proceeding arising out such incident. The crucial role police involvement would play in that process cannot be disputed.’’ Id., 551.
In the present case, the jury reasonably could have
found that the defendant tampered with Rajewski by
sending him text messages shortly after his altercation
with Moulson. The timing of this tampering is similar
to the facts of v.
Foreshaw
, supra,
The judgment is reversed only with respect to the defendant’s conviction of interfering with an officer and the case is remanded with direction to render a judgment of acquittal on that charge and to resentence the defendant on the conviction of tampering with a witness. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
the timing and nature of the relationships between the various parties, as
We note that this case is replete with conflicting testimony regarding
well as the events of the night of July 24, 2015, and the early morning of
July 25, 2015. It was for the jury, and not this court, to resolve discrepancies
in the testimony. We emphasize that ‘‘we must defer to the finder of fact’s
evaluation of the credibility of the witnesses that is based on its invaluable
firsthand observation of their conduct, demeanor and attitude. . . . [The
fact finder] is free to juxtapose conflicting versions of events and determine
which is more credible. . . . It is the [fact finder’s] exclusive province to
*16
weigh the conflicting evidence and to determine the credibility of witnesses.
. . . The [fact finder] can . . . decide what—all, none or some—of a wit-
ness’ testimony to accept or reject.’’ (Citation omitted; internal quotation
marks omitted.)
State
v.
Colon
,
[2] In July, 2015, the defendant and Moulson lived together, but no longer
were involved romantically.
to sustain her conviction of § 53a-167 (a) because she sent the text message
[3]
To the extent that the defendant claims the evidence was insufficient
to a third party, Rajewski, and not the state trooper, Baker, we conclude
that she abandoned such a contention as a result of an inadequate brief.
‘‘We are not required to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly.’’ (Internal quotation marks omitted.)
State
v.
Fowler
,