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S. B-R. v. J. D.*
(AC 43256)
Alvord, Alexander and Eveleigh, Js.
Syllabus
The plaintiff, a college student, obtained an order of civil protection as to
the defendant, a fellow student. The trial court found that the plaintiff,
who had been subjected to disturbing comments by the defendant via
e-mail and text messages as well as in person, including that he wanted
to jump on her back in rage, had a reasonable fear for her physical
safety. Accordingly, the court issued the order of civil protection as to
the defendant pursuant to statute (§ 46b-16a). On the defendant’s appeal
to this court, held that the trial court abused its discretion in issuing
the order of civil protection: the court failed to conduct the necessary
analysis when it applied only the subjective standard to the plaintiff’s
apprehension of fear, rather than the required subjective-objective stan-
dard of reasonable fear, and improperly determined that the plaintiff’s
subjective apprehension was sufficient to make the necessary determina-
tion for stalking pursuant to § 46b-16a; moreover, there was insufficient
evidence for the court to conclude that the defendant would continue
to stalk or to commit acts designed to intimidate or retaliate against the
plaintiff, as the plaintiff testified that there had been no communications
between the defendant and her for several months preceeding the hear-
ing, the defendant testified that he had withdrawn from the college for
a semester and had walked away without approaching or speaking with
the plaintiff the only time he saw her, and the testimony that both
students would be returning as students to the college did not alone
establish reasonable grounds to find that the defendant would continue
to stalk the plaintiff.
(One judge dissenting)
Argued April 7—officially released October 19, 2021
Procedural History
Application for an order of civil protection, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, where the court, Hon. Edward R. Karazin,
Jr., judge trial referee, rendered judgment granting the
application, from which the defendant appealed to this
court. Reversed; judgment directed.
Stephen A. Lebedevitch, for the appellant (defendant).
Harold R. Burke, for the appellee (plaintiff).
Opinion
ALEXANDER, J. The defendant, J. D., appeals from
the judgment of the trial court granting the application
for an order of civil protection for the plaintiff, S. B-R.
On appeal, the defendant claims that the court erred
in finding that there were reasonable grounds to believe
that he committed acts of stalking and would continue
to stalk the plaintiff. We agree with the defendant that
the court abused its discretion when it issued the order
of civil protection because (1) it did not apply an objec-
tive standard in its determination of ‘‘reasonable fear’’
on the first element of stalking, and (2) there was insuffi-
cient evidence on the second element to conclude that
the defendant would continue to stalk or to commit acts
designed to intimidate or retaliate against the plaintiff.
Accordingly, we reverse the judgment of the trial court
and remand this case with direction to vacate the order
of civil protection.
The following facts and procedural history are rele-
vant to this appeal. The parties were classmates at a
community college. Text messages and e-mails between
the plaintiff and the defendant, sent between February
28 and March 3, 2019, demonstrate the relationship
between the parties prior to late February, 2019. In
an e-mail sent to the plaintiff during this period, the
defendant wrote that, ‘‘[i]n the fall when you asked
me to help you study I poured in hours many into
preparation.’’ In a text message sent from the plaintiff
to the defendant she indicated, ‘‘I’m sorry [J. D.] but I
think you just blew the friendship we had.’’ After the
defendant responded with multiple text messages to
the plaintiff, apologizing, the defendant wrote, ‘‘I hate
myself for this sorry. I’m shit. Good luck on your
exams.’’ When the plaintiff sent another text where she
again indicated that she did not want to be ‘‘friends,’’
the defendant responded to this text: ‘‘[Okay]. I didn’t
think you’d read the e-mails. We are done. Please read
the cheat sheet I sent you.’’
Between February 28 and March 3, 2019, the defen-
dant made disturbing comments to the plaintiff in per-
son, over e-mail, and through text messages. Specifi-
cally, on February 28, 2019, the defendant made a
comment to the plaintiff regarding her breasts, and, on
March 1, 2019, the defendant sent an e-mail to the plain-
tiff stating: ‘‘Honestly I want to jump on your back a
little a rage and that would be dumb.’’ Thereafter, the
plaintiff falsely told the defendant that she was going
to get married so that he would stop communicating
with her. On March 3, 2019, the defendant sent the
plaintiff an ‘‘absurd amount of e-mails,’’ complaining, in
part, about how the plaintiff’s marriage would ‘‘interfere
between us’’1 and also a text message wherein he
expressed suicidal thoughts. After March 3, 2019, there
were no communications of any nature between the par-
ties.
On or about July 8, 2019, the plaintiff filed an applica-
tion for an order of civil protection, pursuant to General
Statutes § 46b-16a.2 A hearing on the application was
held on July 22, 2019. At the conclusion of the hearing,
the court issued an oral decision granting the order of
civil protection. The court’s decision reads:
‘‘The Court: Okay. I remember in law school—and
I’ll date myself when I give you this example—but the
question was, could Whistler’s Mother assault Muham-
mad Ali? He was our golden person, Olympic champion
heavyweight boxer, and, Whistler’s Mother was a little
old [lady] in a portrait, rocking in a chair. And, the quick
answer was how could that be? And, the test of an
assault did not require physical contact, the apprehen-
sion was enough. So, if there was apprehension by
Muhammad Ali from her then, that would be an assault.
And, the test here [is] not what [the defendant’s]
thoughts are and his actions, but rather [the plaintiff’s]
apprehension.
‘‘Statute is very clear that indicates that such person
causes reasonable fear—the conduct of the defendant
causes reasonable fear for the physical safety. So she’s
made it very clear she’s very apprehensive, her conduct
on the stand indicated she’s reliving some of these
things. Things which depending on your level of thresh-
old and thickness of skin become more or less signifi-
cant. But, it’s very clear that this is very upsetting to her,
and it’s affected her ability to carry on life’s activities.
‘‘So the court finds that a restraining order will issue.
The [defendant] shall not assault, threaten, abuse,
harass, follow, interfere with, or stalk her. The [defen-
dant] shall stay away from her home or wherever she
shall reside. The [defendant shall] not contact in any
matter, including written, electronic, or telephone con-
tact. And not contact home, workplace, or others with
whom the contact would likely cause annoyance or
alarm to her. I’m going to order the [defendant] stay
100 [yards] away from her.’’ (Emphasis added.)
On July 29, 2019, the defendant filed a motion to
reargue pursuant to Practice Book § 11-12. The court
summarily denied the defendant’s motion. This appeal
followed.3
On appeal, the defendant argues that the court abused
its discretion in issuing the order of civil protection
because ‘‘the [c]ourt failed to find that the actions of
the defendant met the elements of the stalking statute’’
and because the court ‘‘failed to find that [the defen-
dant’s] actions were likely to continue in the future.’’
In particular, the defendant argues that the court
improperly focused on the plaintiff’s ‘‘apprehension,’’
while ignoring the continuation requirement set out in
§ 46b-16a (b). We agree with the defendant that the
court abused its discretion in issuing the order of civil
protection because the court did not apply an objective
standard in finding that the plaintiff’s fear was reason-
able and because there was insufficient evidence to
conclude that the defendant would continue to stalk or
to commit acts designed to intimidate or retaliate
against the plaintiff.
‘‘We begin our analysis by setting forth the relevant
legal principles and applicable standard of review. We
apply the same standard of review to civil protection
orders under § 46b-16a as we apply to civil restraining
orders under General Statutes § 46b-15. Thus, we will
not disturb a trial court’s orders unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion . . . we allow every rea-
sonable presumption in favor of the correctness of its
action. . . . Appellate review of a trial court’s findings
of fact is governed by the clearly erroneous standard
of review. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Our deferential standard of review,
however, does not extend to the court’s interpretation
of and application of the law to the facts. It is axiomatic
that a matter of law is entitled to plenary review on
appeal.’’ (Internal quotation marks omitted.) C. A. v. G.
L., 201 Conn. App. 734, 738–39, 243 A.3d 807 (2020).
Section 46b-16a provides in relevant part: ‘‘(a) Any
person who has been the victim of . . . stalking may
make an application to the Superior Court for relief
under this section . . . . (b) . . . 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 intimi-
date or retaliate against the applicant, the court, in its
discretion, may make such orders as it deems appro-
priate for the protection of the applicant. . . .’’
In order for a court to issue an order of civil protec-
tion under § 46b-16a on the basis of stalking, it must
find that there are reasonable grounds to believe that
the defendant both stalked the plaintiff and will con-
tinue to commit such acts. See C. A. v. G. L., supra,
201 Conn. App. 740; see also Kayla M. v. Greene, 163
Conn. App. 493, 506, 136 A.3d 1 (2016) (‘‘an applicant
for a civil protection order on the basis of stalking
pursuant to § 46b-16a must prove only that there are
reasonable grounds to believe that every element is met
and that such conduct will continue’’ (internal quotation
marks omitted)). If a court issues an order without a
proper finding or without sufficient evidence to support
such a finding, as to either stalking or the continuation
of such acts, it will constitute an abuse of discretion.
See C. A. v. G. L., supra, 739.
We begin with the trial court’s determination on the
first element of the statute, specifically, that the defen-
dant’s conduct caused the plaintiff to reasonably fear
for her safety. We conclude, after a thorough review of
the record, that the court failed to conduct the neces-
sary analysis when it applied only the subjective stan-
dard of apprehension of fear, taken from a definition
of assault, rather than the required subjective-objective
standard of reasonable fear.
Section 46b-16a (a) defines stalking as ‘‘two or more
wilful acts, performed in a threatening, predatory or
disturbing manner of: Harassing, following, lying in wait
for, surveilling, monitoring or sending unwanted gifts
or messages to another person directly, indirectly or
through a third person, by any method, device or other
means, that causes such person to reasonably fear for
his or her physical safety.’’ ‘‘The standard to be applied
in determining the reasonableness of the victim’s fear
in the context of the crime of stalking is a subjective-
objective one. . . . As to the subjective test, the situa-
tion and the facts must be evaluated from the perspec-
tive of the victim, i.e., did she in fact fear for her physical
safety. . . . If so, that fear must be objectively reason-
able, i.e., a reasonable person under the existing circum-
stances would fear for his or her personal safety.’’4
(Citations omitted; internal quotation marks omitted.)
C. A. v. G. L., supra, 201 Conn. App. 740.
In its analysis, the court began with an anecdote,
asking, ‘‘could Whistler’s Mother assault Muhammad
Ali?’’ The court provided the hypothetical analogy in
order to set up a test of subjective apprehension in
relation to the defendant’s actions, rather than applying
the subjective-objective standard required by § 46b-16a
(a). See C. A. v. G. L., supra, 201 Conn App. 740. In
applying this logic, the court diluted the necessary find-
ing that the ‘‘reasonable fear’’ be both subjectively and
objectively reasonable and, instead, determined that
the plaintiff’s subjective ‘‘apprehension’’ was sufficient
to make the necessary determination for stalking. The
court continued to use only a subjective standard
wherein it expressly found that ‘‘it’s very clear that this
is very upsetting to her.’’ Further, that use was apparent
when the court stated that the plaintiff’s apprehension
is dependent ‘‘on [a person’s] level of threshold and
thickness of skin . . . .’’
Although the trial court’s discussion can be construed
as finding that the plaintiff was subjectively in fear for
her safety, the trial court failed to determine whether
the plaintiff’s ‘‘apprehension’’ was objectively reason-
able. As a result of the court’s failure to apply the correct
standard, it abused its discretion in issuing the protec-
tive order.
In addition to applying an improper analysis on the
reasonable fear prong, the court failed to make a finding
that the defendant would continue to commit acts of
stalking against the plaintiff. At the hearing on the plain-
tiff’s application for an order of civil protection in July,
2019, the plaintiff presented no evidence that the defen-
dant would continue to stalk her. The plaintiff testified
that there had been no communications between the
defendant and her since March 3, 2019. The defendant
testified that at some point after March 3, 2019, he
dropped all of his classes and withdrew from the com-
munity college for that semester. He further testified
that in mid-April, 2019, he saw the plaintiff from a dis-
tance on the campus and walked away without con-
tacting or communicating with her. Moreover, the
defendant clearly conveyed to the plaintiff by both text
messages and e-mails that he understood that their
friendship was over and that he would cease communi-
cation with her. Although there was testimony that both
parties would be returning as students to the commu-
nity college in the fall of 2019, this evidence alone does
not establish reasonable grounds for the court to find
that the defendant would continue to commit such acts
of stalking or acts designed to intimidate or retaliate
against the plaintiff.
Although we recognize that ‘‘the court is presumed
to know the law and apply it correctly to its legal deter-
minations’’; Iacurci v. Sax, 139 Conn. App. 386, 396, 57
A.3d 736 (2012), aff’d, 313 Conn. 786, 99 A.3d 1145
(2014); the court’s decision is devoid of the necessary
finding that the defendant would continue to stalk the
plaintiff. Moreover, the court made no reference to any
testimony or exhibits in support of its findings. The
court’s singular mention of ‘‘statute’’ relates only to
whether the defendant’s actions caused the plaintiff
‘‘reasonable fear.’’ Thus, the court’s analysis is limited
to only the first element of whether the defendant
‘‘stalked’’ the plaintiff and does not reveal that the court
considered the second element, as required by the rele-
vant statute.
In Kayla M. v. Greene, supra, 163 Conn. App. 506, this
court explained that ‘‘an applicant for a civil protection
order on the basis of stalking pursuant to § 46b-16a
must prove only that there are ‘reasonable grounds to
believe’ that every element is met and that such conduct
will continue.’’ (Emphasis added.) In the present case,
the court failed to make the requisite findings pursuant
to the statute by limiting its analysis to ‘‘reasonable
fear’’—an analysis that was itself incorrect.
The dissent concludes that ‘‘[the defendant’s] testi-
mony that he never thought about hurting anyone else
is not credible’’ and that this overall lack of credibility
supports a finding of continuing conduct. The dissent
makes this credibility determination even though the
trial court made no findings as to the credibility of the
defendant. Rather, the trial court was clear that ‘‘the
test [it applied] here [was] not what [the defendant’s]
thoughts are and his actions, but rather [the plaintiff’s]
apprehension.’’ The trial court, therefore, made no
determination as to the defendant’s thoughts, actions,
or credibility and found such considerations to be irrele-
vant.
Given the dearth of evidence on the critical factual
question of whether the defendant would continue to
stalk the plaintiff, we conclude that the court could not
reasonably find that the continuing conduct element of
§ 46b-16a was proven. We therefore conclude that the
court abused its discretion in issuing an order of civil
protection for the plaintiff against the defendant.
The judgment is reversed and the case is remanded
with direction to vacate the order of civil protection.
In this opinion, ALVORD, J., concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
1
The e-mail from the defendant to the plaintiff reads: ‘‘I’m sorry. I didn’t
mean to act rude. I’m sorry for being a bad friend. I was self-conscious
because I wasn’t a great friend for you, which is my fault. I believed our
friendship would’ve ended anyways, because maybe marriage would’ve sepa-
rated us.’’
2
The plaintiff had attempted twice prior to serve the defendant with notice
of the application for a civil protection order, however, those attempts failed
because the defendant could not be located. The plaintiff was able to serve
the defendant on her third attempt with the assistance of a private investiga-
tor.
3
Following the filing of this appeal, the defendant filed a motion requesting
the court to enforce an automatic stay. On August 23, 2019, after hearing
arguments from both the defendant and the plaintiff, the court terminated
the stay. On August 27, 2019, the defendant filed a motion for review of the
termination of the stay with this court, which granted review but denied
the requested relief. On August 27, 2019, the defendant filed a motion for
articulation, which the trial court denied on December 9, 2019. The defendant
filed a motion for review of the denial of his motion for articulation with
this court, which granted review but denied the requested relief.
4
A previous revision of § 46b-16a had no subjective requirement, only
requiring that a defendant’s conduct cause a ‘‘reasonable person to fear.’’
See C. A. v. G. L., supra, 201 Conn. App. 740 n.6.