STATE OF CONNECTICUT v. EDGAR OPIO-OGUTA
(AC 34684)
Alvord, Sheldon and Harper, Js.
Argued February 4—officially released September 23, 2014
(Appeal from Superior Court, judicial district of Hartford, geographical area number fourteen, Randolph, J.)
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James M. Ralls, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Mullins, senior assistant state’s attorney, for the appellee (state).
HARPER, J. The defendant, Edgar Opio-Oguta, appeals from the judgment of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of
The jury reasonably could have found the following facts. The victim met the defendant in May, 2010. The victim moved in with the defendant and became the defendant’s girlfriend for two or three months. After the victim and the defendant separated, the defendant continued to call the victim and send her text messages. In June, 2010, prior to the end of their relationship, the victim obtained a protective order requiring the defendant to stay away from the victim’s residence and not to contact her.1 After the protective order was issued, the defendant continued to call the victim and her children. The victim did not report these instances to the police, however, because she did not feel physically threatened by them. In November, 2010, the victim moved to a residence in Hartford with her boyfriend, Chol Mangor, and his cousin, Ring Yak.
On the afternoon of January 8, 2011, the victim and Mangor were napping in the bedroom of their residence, and Yak and a few of his friends were in the living room, when the defendant came into the bedroom with a beer bottle in his hand and asked to speak to Mangor. When Mangor told the defendant to leave, the defendant threw the beer bottle, missing Mangor’s head and hitting the wall. The victim called the police, who arrived and arrested the defendant.
The defendant was charged with criminal violation of a protective order in violation of
I
The defendant first argues that the court improperly enlarged the offense of criminal violation of a protective order in its charge to the jury.
The following facts are relevant to this claim. Count one of the second amended long form information
At the conclusion of the evidence, a charge conference took place on the record. During this conference, the court reviewed its proposed charge with counsel. The court also considered requests to charge submitted by the defendant. The court’s proposed charge regarding criminal violation of a protective order did not indicate that the state had alleged that the defendant called or texted the victim in violation of the protective order, and this was not discussed during the charge conference. In the court’s final charge, however, the court stated: ‘‘The state alleges that the defendant harassed the complaining witness. The state also alleges that the defendant did not stay away from the residence of the protected person, and the state also alleges that the defendant called or texted the protected person in violation of the protective order.’’ (emphasis added.)3 The defendant argues that by including the language regarding phone calls and text messages, the court improperly enlarged the offense of criminal violation of a protective order. The state contends that although this added language potentially enlarged the offense, the evidence and instructions as a whole guided the jury to a proper verdict.
We initially note that the defendant did not object to the court’s charge on criminal violation of a protective order and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or the plain error doctrine.4 Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ Id., 239–40. Because the record in this case is adequate for review and the defendant’s claim implicates his right to be sufficiently informed of the nature of the charges against him, pursuant to the federal and state constitutions; see State v. Dunstan, 145 Conn. App. 384, 395 and n.8, 74 A.3d 559, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013); we will proceed to review the merits of the defendant’s claim pursuant to Golding.
‘‘[E]nlargement cases involve claims that the trial court expanded the state’s information by instructing the jury on statutory or factual alternatives not charged
The defendant contends that he was prejudiced by the inclusion of the erroneous language in the court’s charge because his defense was based on mistake or accident in that he did not know the victim was living at the address at issue, and went there to visit friends, not to see the victim. According to the defendant, evidence that he previously had tried to contact the victim in violation of the protective order was inconsistent with, and, thereby undermined, this defense. See State v. Belton, 190 Conn. 496, 503–504, 461 A.2d 973 (1983). The defendant further argues that because the court failed to grant his pretrial motion for notice of uncharged misconduct, he was unfairly surprised and prejudiced in the preparation of his defense by the inclusion of the challenged language in the court’s charge.5
We agree with the defendant that the court improperly included the language regarding phone calls and text messages in its jury charge. We conclude, however, that this error was harmless in light of the defendant’s conviction of disorderly conduct, as alleged in count two of the information. Count two alleged that ‘‘on or about the 8th day of January 2011, at approximately 3:15 p.m., in the vicinity of [the victim’s residence, the defendant] did intend to cause inconvenience, annoyance and recklessly caused a risk thereof to [the victim], and engaged in violent, tumultuous, and threatening conduct toward [the victim] and Chol Mangor . . . in violation of [§]
II
The defendant next argues that the court’s charge did not sufficiently instruct the jury regarding the intent required for a conviction of criminal violation of a protective order. Specifically, he argues that the court’s charge did not adequately inform the jury that criminal violation of a protective order is a general intent crime. We disagree.
The following facts are relevant to this claim. At the conclusion of the evidence, defense counsel submitted a request to charge regarding the offense of criminal violation of a protective order. The requested charge did not include language specifying that criminal violation of a protective order is a general intent crime. It did, however, indicate that ‘‘a person acts ‘intentionally’ with respect to conduct when his conscious objective is to engage in such conduct.’’8 At the charge conference, the court reviewed its proposed charge with counsel. Defense counsel did not indicate that the court’s proposed charge, which mirrored the defendant’s requested charge with regard to intent, was unclear. Further, defense counsel did not object to the court’s charge after it was given. In view of the foregoing, the defendant concedes that he implicitly waived his right to challenge the instruction on appeal, and, therefore, that Golding review is unavailable for this claim. See State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). He requests, however, that this court review this claim under the plain error doctrine or, alternatively, pursuant to the exercise of our supervisory authority over the administration of justice. The state counters that the defendant’s claim is not reviewable because the defendant induced the court to give the charge challenged on appeal.9 If reviewed, the state argues that the defendant cannot prevail pursuant to the plain error doctrine or our supervisory authority.
‘‘It is well established in Connecticut that unpreserved claims of improper jury instructions are review-
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by the appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.’’ (Internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 77, 60 A.3d 271 (2013).
‘‘An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernible on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.’’ (Internal quota-
Turning to the present case,
The defendant argues that the charge was defective because it did not specify that criminal violation of a protective order is a general intent crime, potentially leading the jury to believe that there is no mental element required in order to find the defendant guilty of criminal violation of a protective order. The court properly instructed the jury, however, that the state was required to prove beyond a reasonable doubt that the court issued a protective order against the defendant and that the defendant violated a condition of the protective order. The court also properly charged, with regard to violation of a protective order, that ‘‘a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.’’ The charge given was consistent with the charge requested by the defendant and the model charge found on the Connecticut Judicial Branch website.10 Prior to the court’s charge regarding the elements of criminal violation of a protective order, the court explained the differences between general intent and specific intent.11 During its charge regarding disorderly conduct, the court noted that it previously had explained the difference between general intent and specific intent, and clarified that disorderly conduct was a specific intent crime. On the basis of the foregoing, we are not persuaded that an error exists that is so obvious that it affects the fairness and integrity of and the public confidence in the judicial proceedings or that the court’s instructions caused the defendant to suffer manifest injustice. See State v. Sanchez, supra, 308 Conn. App. 77.12
III
The following facts are relevant to this claim. At trial, over the defendant’s objection, the victim testified that on a date prior to trial, she met with an investigator for the state and listened to a recording of her 911 phone call to the Hartford Police Department. She testified that it was her voice on the phone call, and that no additions or deletions had been made to the recording. When the prosecutor moved to offer the recording as a full exhibit, defense counsel objected on the ground that the recording had not been authenticated. Defense counsel then stated: ‘‘And also I object as to it’s very prejudicial versus probative. She’s already testifying to events, and it’s cumulative and superfluous to her testimony, your Honor.’’ The court then indicated that ‘‘[o]n those grounds, it’s cumulative, superfluous, she’s already testified, the objection is overruled.’’ The recording was then played for the jury.
On appeal, the defendant argues that although the victim’s voice was calm when the recording began, she was screaming hysterically by the end of the call. The defendant contends that the screaming was out of proportion to what was occurring in the background, and made it sound as if the victim was being assaulted or harmed in some way. According to the defendant, because of the victim’s prolonged screaming, the recording was highly inflammatory and likely to arouse the emotions of the jury.13 The state counters that this issue was not properly preserved at trial because, although the defendant did argue that the evidence was more prejudicial than probative, he failed to inform the court of the specific objection raised on appeal. The state further argues that, if this claim is reviewed, we should conclude that the court did not abuse its discretion in admitting the recording. We conclude that the defendant properly preserved this issue at trial, but further conclude that the court did not abuse its discretion in admitting the recording of the victim’s 911 phone call.
‘‘We will make every reasonable presumption in favor of upholding the trial court’s [evidentiary] ruling, and only upset it for manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. . . . The question, moreover, is not whether the evidence is highly probative, but simply whether its probative value outweighs undue prejudice.’’ (Citation omitted; internal quotation marks omitted.) State v. Hill, 307 Conn. 689, 700–701, 59 A.3d 196 (2013). Our Supreme Court ‘‘has identified four factors
In State v. Rodriguez, 91 Conn. App. 112, 121, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005), the defendant, who was convicted of burglarizing an occupied home, argued that the court improperly admitted into evidence a tape recording of the 911 call in the case. The woman on the recording indicated that someone was breaking into her home and expressed fear for the safety of her children. Id. We concluded in Rodriguez that the court did not abuse its discretion in admitting the recording into evidence, stating that ‘‘the court reasonably determined that the recording was relevant because it tended to support the fact that a burglary had occurred. Although the jury may have detected fear in the woman’s voice on the recording, we cannot conclude that the recording unduly aroused the jury’s emotions. A reasonable person would assume fear in the mind of a burglary victim. The recording was therefore not particularly prejudicial. Finally, the recording was not merely cumulative because the woman who made the 911 call did not testify about the contents of the call on direct examination. The prosecutor questioned her about the events leading to the call, then played the recording and questioned her about the events following the call.’’ Id., 122–23.
Similarly, in State v. Nelson, 105 Conn. App. 393, 408, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008), the defendant, who was convicted of conspiracy to commit robbery in the first degree, argued that the court should not have permitted the jury to hear the 911 recording. We disagreed, stating that ‘‘[t]he 911 recording was not unfairly prejudicial; although the jury may have detected suffering and fear in [the victim’s] voice, we cannot conclude that the recording unduly aroused the jury’s emotions. . . . With or without the aid of a tape, a reasonable person would assume a person in [the victim’s] position to be distressed.’’ Id., 412. We further concluded that the recording was not cumulative because it presented matters not covered by the victim’s testimony. Id.
As we did in Rodriguez and Nelson, we conclude that the 911 recording here was not unfairly prejudicial. Further, we disagree with the defendant’s attempt to distinguish Rodriguez on the ground that the victim
The judgment is affirmed.
In this opinion the other judges concurred.