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STATE OF CONNECTICUT v. KERLYN M. TAVERAS
(SC 20496)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The defendant appealed from the judgments of the trial court revoking his
probation. The defendant previously had pleaded guilty to various crimes
and received a sentence of imprisonment followed by a term of proba-
tion. The conditions of the defendant’s probation prohibited him from
violating any state or federal criminal law. While the defendant was
serving his term of probation, he precipitated an incident at his son’s
preschool. On the day of the incident, B, the preschool’s director,
received a call from her staff informing her that the defendant was late
in picking up his son. B’s staff members reported that the defendant
arrived in an escalated emotional state and began arguing with them.
C, one of the staff members, said something to the defendant as he was
exiting the preschool with his son, and, according to an affidavit from
the defendant’s probation officer, the defendant said to C, ‘‘you better
watch your back.’’ The defendant tried to get back in the door but
was unable to, and then left the preschool. After the state charged the
defendant with violating the terms of his probation, the trial court held
an evidentiary hearing. The court found, by a preponderance of the
evidence, that the state met its burden of proving that the defendant
had violated the terms of his probation by committing breach of the
peace in the second degree. The court specifically found that the defen-
dant had exhibited a threatening nature and demeanor, and that his
conduct caused B to call the police. Accordingly, the court rendered
judgments revoking the defendant’s probation. On appeal to the Appel-
late Court, the defendant claimed that his remarks were protected by
the first amendment to the United States constitution. The Appellate
Court agreed with the defendant and reversed the judgments of the trial
court, reasoning that the defendant’s remarks had not conveyed an
explicit threat and that the state had failed to provide sufficient context
to resolve the resulting ambiguity. The state, on the granting of certifica-
tion, appealed to this court. Held that the Appellate Court incorrectly
determined that the defendant’s remarks warranted first amendment
protection, as the defendant’s statements and demeanor, as well as
the surrounding context, were sufficient to support a finding that the
defendant’s remarks constituted true threats: although the phrase ‘‘you
better watch your back’’ can be used to caution an addressee of an
external threat, it can also be used as a veiled or conditional threat of
violence, the record did not suggest that the defendant’s remarks were
intended to convey the former sentiment, and the defendant’s history
at the preschool, his demeanor during the incident in question, and the
subsequent reactions of the preschool staff appeared objectively to
indicate the threat of the possibility of violence; moreover, B stated
that the defendant had previously caused escalated interactions at the
preschool and that she previously had seen the defendant act in a
threatening manner, and the fact that preschool employees notified B
of the defendant’s late arrival before it occurred and that B immediately
returned to the preschool because she knew things would escalate
indicated that the defendant had made his remarks in the context of
an existing hostile relationship; furthermore, B testified that, when she
arrived at the preschool shortly after the incident, the staff was shaken
up and concerned by what had transpired, B immediately contacted the
police, formally prohibited the defendant from reentering the preschool,
began to pursue a restraining order, and hired a police office for addi-
tional security the following day, all of which reasonably suggested a
specific fear of physical violence; accordingly, this court reversed the
judgment of the Appellate Court and remanded the case for the Appellate
Court to consider the defendant’s remaining appellate claims.
(Three justices concurring separately in two opinions)
Argued November 16, 2021—officially released March 29, 2022
Procedural History
Three substitute informations charging the defendant
with violation of probation, brought to the Superior
Court in the judicial district of Danbury, geographical
area number three, where the cases were consolidated
and tried to the court, Russo, J.; judgments revoking
the defendant’s probation, from which the defendant
appealed to the Appellate Court, Sheldon and Eveleigh,
Js., with Elgo, J., dissenting, which reversed the trial
court’s judgments and remanded the cases with direc-
tion to render judgments for the defendant, and the
state, on the granting of certification, appealed to this
court. Reversed; further proceedings.
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III and Sharmese L. Walcott, state’s attorneys, for the
appellant (state).
James B. Streeto, senior assistant public defender,
for the appellee (defendant).
Opinion
KAHN, J. The principal issue in this case is whether
the first amendment to the United States constitution
protects certain allegedly threatening remarks made by
the defendant, Kerlyn M. Taveras, to the employees of
his son’s preschool in Danbury. In this certified appeal,
the state claims that the Appellate Court incorrectly
concluded that the evidence contained in the record
precluded application of the true threats exception and,
as a result, improperly reversed the judgments of the
trial court revoking the defendant’s probation pursuant
to General Statutes § 53a-32 on the basis of that evi-
dence. The defendant, in response, argues that the
Appellate Court’s analysis on the point was sound, and
that his conduct on the day of the incident in question
warrants first amendment protection. For the reasons
that follow, we agree with the state and, accordingly,
reverse the judgment of the Appellate Court.
The following evidence, adduced at the defendant’s
probation revocation hearing, and procedural history
are relevant to our consideration of this appeal. The
record establishes that the defendant had been pre-
viously charged with, and pleaded guilty to, the follow-
ing offenses in three separate criminal cases: (1)
threatening in the second degree in violation of General
Statutes § 53a-62 (a) (3) in connection with an incident
that occurred on or about September 17, 2009; (2)
assault in the third degree in violation of General Stat-
utes § 53a-61 (a) (1) in connection with an incident that
occurred on or about June 30, 2011; and (3) threatening
in the second degree in violation of § 53a-62 (a) (3) in
connection with an incident that occurred on or about
July 28, 2011. The trial court accepted those pleas and,
on August 22, 2012, imposed a total effective sentence
on those charges of three years of incarceration, execu-
tion suspended after twelve months, followed by three
years of probation.1 The defendant’s term of probation
on these charges began on July 1, 2013. On August 28,
2012, and then again on April 25, 2013, the defendant
agreed to the standard conditions of probation set forth
on Judicial Branch Form JD-AP-110. Those conditions
expressly prohibited the defendant from, among other
things, ‘‘violat[ing] any criminal law of the United States,
this state or any other state or territory.’’
On March 11, 2014, approximately eight months into
his term of probation, the defendant precipitated an
incident at his son’s preschool in Danbury. The evidence
contained in the record about that event comes almost
exclusively from two distinct sources: (1) testimony
from the preschool’s director, Monica Bevilaqua; and
(2) an affidavit from the defendant’s probation officer,
Christopher Kelly, dated April 17, 2014, requesting the
issuance of a warrant for a violation of the defendant’s
probation.2 We review these two accounts in turn.
First, Bevilaqua testified that the defendant’s son was
one of about four hundred students enrolled at the
preschool and that his child’s scheduled hours were
8:30 a.m. to 4 p.m. Shortly after 4 p.m. on March 11,
2014, Bevilaqua, who was not then physically present
at the preschool, received a call from her staff informing
her that the defendant was late for pickup. Pursuant
to standard policy, preschool staff had reached out to
the defendant by phone to ask where he was. Bevilaqua
testified that the defendant was ‘‘not happy’’ about this
call but that he had, nonetheless, told staff that he was
on his way.
According to reports from Bevilaqua’s staff, the
defendant eventually arrived at the preschool at approx-
imately 4:40 p.m. in an ‘‘already escalated’’ emotional
state, went down to his child’s classroom, and then
began arguing with staff on his way out. Sondra Cher-
ney, the preschool’s assistant education manager, then
said something to the defendant as he was exiting the
preschool through a set of locked doors. Bevilaqua testi-
fied that, in response to Cherney’s comment, the defen-
dant turned around and said, ‘‘you better watch
yourself, you better be careful . . . .’’ Bevilaqua indi-
cated that the defendant then ‘‘tried to get back in the
door and couldn’t, and then he left.’’
Other portions of Bevilaqua’s testimony provide the
following additional factual context. Bevilaqua indi-
cated that this situation was not the staff’s first ‘‘esca-
lated interaction’’ with the defendant. Although the details
of these previous interactions were not expressly drawn
out at the hearing, Bevilaqua clearly testified that she
herself had previously witnessed the defendant acting
in a threatening manner. Indeed, Bevilaqua stated that
she made the decision to return to the preschool as
soon as she heard that the defendant was going to be
late because she ‘‘knew it would get escalated.’’ When
she got to the preschool, she found that members of her
staff were ‘‘shaken up’’ and ‘‘concerned’’ by what had
transpired. Bevilaqua also stated that, in order to pro-
tect those at the preschool, she immediately contacted
the police, formally prohibited the defendant from reen-
tering the preschool, began pursuing a restraining order,
and hired a police officer for additional security the
following day.
Kelly’s affidavit provides the following similar account
of events: ‘‘[On March 11, 2014, police officers were]
dispatched to [a preschool for] a dispute involving [the
defendant]. [The defendant] was forty minutes late pick-
ing up his child . . . and [was] . . . reminded . . .
that he needed to pick his child up on time. [The defen-
dant] became extremely agitated and began to argue
with staff. Staff told [the defendant] that he had to leave
because he was arguing with staff in the front lobby in
front of other children and their parents. [The defen-
dant] then yelled to the staff ‘you better watch your
back.’ Staff reported . . . that [the defendant] was so
enraged and intimidating that the school hired a police
officer for security the next morning in the event [the
defendant] came back. [The defendant] agreed to meet
[police officers] the next morning and was arrested for
breach of [the] peace. [The defendant] was advised not
to return to the school again, otherwise he would be
arrested for criminal [t]respass.’’
The state subsequently sought revocation of the defen-
dant’s probation as a result of the defendant’s conduct
on March 11, 2014.3 During the hearing that followed,
the state proceeded on the theory that the foregoing
testimony and evidence were sufficient to prove that
the defendant had violated the terms of his probation
by committing breach of the peace in the second degree,
in violation of General Statutes § 53a-181 (a).4
On the basis of this testimony, the trial court found
that the state had met its burden of proving, by a prepon-
derance of the evidence, that the defendant had violated
the standard terms of his probation by violating § 53a-
181 (a). In ruling in favor of the state on the adjudicatory
phase of the proceeding, the trial court explicitly found
that the defendant had exhibited a ‘‘threatening nature
and demeanor’’ and that his conduct had caused Bevila-
qua to contact the police. In its ruling, the trial court
acknowledged, and implicitly rejected, defense coun-
sel’s argument that the facts of the present case demon-
strated nothing more than that ‘‘[a person] being upset
with the way [a] daycare . . . handles [his] child
. . . .’’ After the dispositional phase of the hearing, the
trial court rendered judgments revoking the defendant’s
various terms of probation and sentenced him to a total
effective term of eighteen months of incarceration.
The defendant then appealed from the trial court’s
judgments to the Appellate Court, claiming, inter alia,
that the evidence presented at his probation revocation
hearing was insufficient to support a finding that he
had violated the terms of his probation. State v. Taveras,
183 Conn. App. 354, 357, 193 A.3d 561 (2018). Specifi-
cally, the defendant argued that the state’s evidence was
insufficient to establish that his remarks constituted
a true threat and, therefore, that they warranted first
amendment protection. Id., 357–58. The Appellate Court,
in a split decision, agreed with the defendant and reversed
the judgments of the trial court, reasoning that the
defendant’s remarks did not convey an explicit threat
and that the state had failed to provide sufficient con-
text to resolve the resulting ambiguity. See id., 380–81.
Judge Elgo authored a dissent in which she concluded
that, in light of the lower standard of proof applicable
to probation proceedings, there was sufficient evidence
to support the trial court’s revocation of the defendant’s
probation. Id., 387–88. This certified appeal followed.5
The standard of review and constitutional principles
governing our review of the Appellate Court’s true threats
analysis are well established. ‘‘The [f]irst [a]mendment,
applicable to the [s]tates through the [f]ourteenth
[a]mendment, provides that Congress shall make no law
. . . abridging the freedom of speech. The hallmark of
the protection of free speech is to allow free trade in
ideas—even ideas that the overwhelming majority of
people might find distasteful or discomforting. . . .
Thus, the [f]irst [a]mendment ordinarily denies a [s]tate
the power to prohibit dissemination of social, economic
and political doctrine [that] a vast majority of its citizens
believes to be false and fraught with evil consequence
. . . .
‘‘The protections afforded by the [f]irst [a]mendment,
however, are not absolute, and we have long recognized
that the government may regulate certain categories of
expression consistent with the [c]onstitution. . . . The
[f]irst [a]mendment permits restrictions [on] the con-
tent of speech in a few limited areas, which are of such
slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest in order and morality. . . .
‘‘The first amendment permits states to restrict true
threats, which encompass those statements [through
which] the speaker means to communicate a serious
expression of an intent to commit an act of unlawful
violence to a particular individual or group of individu-
als. . . . The speaker need not actually intend to carry
out the threat. Rather, a prohibition on true threats
protect[s] individuals from the fear of violence and from
the disruption that fear engenders, in addition to pro-
tecting people from the possibility that the threatened
violence will occur. . . .
‘‘Thus, we must distinguish between true threats,
which, because of their lack of communicative value,
are not protected by the first amendment, and those
statements that seek to communicate a belief or idea,
such as political hyperbole or a mere joke, which are
protected. . . . In the context of a threat of physical
violence, [w]hether a particular statement may properly
be considered to be a [true] threat is governed by an
objective standard—whether a reasonable person would
foresee that the statement would be interpreted by
those to whom the maker communicates the statement
as a serious expression of intent to harm or assault. . . .
[A]lleged threats should be considered in light of their
entire factual context, including the surrounding events
and reaction of the listeners. . . .
‘‘[T]o ensure that only serious expressions of an
intention to commit an act of unlawful violence are
punished, as the first amendment requires, the state
. . . must do more than demonstrate that a statement
could be interpreted as a threat. When . . . a statement
is susceptible of varying interpretations, at least one of
which is nonthreatening, the proper standard to apply
is whether an objective listener would readily interpret
the statement as a real or true threat; nothing less is
sufficient to safeguard the constitutional guarantee of
freedom of expression. To meet this standard [the state
is] required to present evidence demonstrating that a
reasonable listener, familiar with the entire factual con-
text of the defendant’s statements, would be highly
likely to interpret them as communicating a genuine
threat of violence rather than protected expression,
however offensive or repugnant.’’ (Citations omitted;
emphasis altered; footnote omitted; internal quotation
marks omitted.) Haughwout v. Tordenti, 332 Conn. 559,
570–72, 211 A.3d 1 (2019); see also State v. Taupier,
330 Conn. 149, 193–94, 193 A.3d 1 (2018), cert. denied,
U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
‘‘In determining whether the trial court properly found
that the defendant’s statements and gestures were true
threats, we recognize that, although we ordinarily
review findings of fact for clear error, [i]n certain first
amendment contexts . . . appellate courts are bound
to apply a de novo standard of review. . . . [In such
cases] the inquiry into the protected status of . . .
speech is one of law, not fact. . . . As such, an appel-
late court is compelled to examine for [itself] the . . .
statements [at] issue and the circumstances under
which they [were] made to [determine] whether . . .
they . . . are of a character [that] the principles of the
[f]irst [a]mendment . . . protect. . . . [I]n cases rais-
ing [f]irst [a]mendment issues [the United States
Supreme Court has] repeatedly held that an appellate
court has an obligation to make an independent exami-
nation of the whole record in order to make sure that
the judgment does not constitute a forbidden intrusion
[in] the field of free expression. . . . This rule of inde-
pendent review was forged in recognition that a
[reviewing] [c]ourt’s duty is not limited to the elabora-
tion of constitutional principles . . . . [Rather, an
appellate court] must also in proper cases review the
evidence to make certain that those principles have
been constitutionally applied. . . . Therefore, even
though, ordinarily . . . [f]indings of fact . . . shall not
be set aside unless clearly erroneous, [appellate courts]
are obliged to [perform] a fresh examination of crucial
facts under the rule of independent review. . . . We
emphasize, however, that the heightened scrutiny that
this court applies in first amendment cases does not
authorize us to make credibility determinations regard-
ing disputed issues of fact. Although we review de novo
the trier of fact’s ultimate determination that the state-
ments at issue constituted a true threat, we accept all
subsidiary credibility determinations and findings that
are not clearly erroneous.’’ (Citations omitted; internal
quotation marks omitted.) Haughwout v. Tordenti,
supra, 332 Conn. 572–73. The defendant concedes that,
because he is charged with a violation of probation, a
preponderance of the evidence standard governed the
trial court’s findings of historical fact. See, e.g., State
v. Davis, 229 Conn. 285, 290–91, 641 A.2d 370 (1994);
see also Haughwout v. Tordenti, supra, 586 n.20 (con-
ducting true threats analysis within context of ‘‘record
as reflected by the lower burden of proof in civil cases’’).
Our independent examination of the present case is
guided, in particular, by this court’s decision in State
v. Krijger, 313 Conn. 434, 97 A.3d 946 (2014). The defen-
dant in that case had been engaged in a long-standing
zoning dispute with the town of Waterford. Id., 436,
438. Although the defendant had been ‘‘pleasant and
cooperative’’ with the town’s attorney on dozens of
previous occasions, he became upset after a particular
court hearing, followed the town’s attorney out of the
courthouse, and began yelling. (Internal quotation
marks omitted.) Id., 438–40. The defendant told the
attorney that ‘‘[m]ore of what happened to your son is
going to happen to you’’ and that he was ‘‘going to be
there to watch it happen.’’ (Internal quotation marks
omitted.) Id., 440. The attorney, whose son had been
injured in a highly publicized car accident, responded
by calling the defendant ‘‘a piece of shit’’ and eventually
walked away. (Internal quotation marks omitted.) Id.,
440–41 and n.6. Before the attorney reached his car, he
was approached once again by the defendant, who then
apologized for his outburst. Id., 442. Although the attor-
ney did not initially perceive the defendant’s comments
as a threat, he eventually filed a complaint with the
police department two days later. Id. The defendant was
later charged with threatening in the second degree. Id.
We began our examination of the first amendment
issue in Krijger by recognizing that the ‘‘absence of
explicitly threatening language [did] not preclude the
finding of a threat . . . .’’ (Internal quotation marks
omitted.) Id., 453; see Planned Parenthood of the
Columbia/Willamette, Inc. v. American Coalition of
Life Activists, 290 F.3d 1058, 1078–79 (9th Cir. 2002)
(‘‘context is critical in a true threats case . . . because
without context, a burning cross or dead rat mean noth-
ing’’ (citation omitted; footnotes omitted)), cert. denied,
539 U.S. 958, 123 S. Ct. 2637, 156 L. Ed. 2d 655 (2003);
United States v. Malik, 16 F.3d 45, 50 (2d Cir.) (‘‘rigid
adherence to the literal meaning of a communication
without regard to its reasonable connotations derived
from its ambience would render [statutes proscribing
true threats] powerless against the ingenuity of threat-
eners who can instill in the victim’s mind as clear an
apprehension of impending injury by an implied menace
as by a literal threat’’), cert. denied, 513 U.S. 968, 115
S. Ct. 435, 130 L. Ed. 2d 347 (1994); see also Haughwout
v. Tordenti, supra, 332 Conn. 575 (‘‘[p]ut differently,
even veiled statements may be true threats’’).
To discern the true nature of the defendant’s expres-
sion in Krijger, we looked to the context provided by
both the prior relationship between the parties and the
particular circumstances surrounding the alleged threat
itself. State v. Krijger, supra, 313 Conn. 454. First, we
observed that the case was ‘‘not [one] in which one’s
prior hostile acts or menacing behavior provided a clari-
fying lens through which to view an ambiguous threat’’
because the defendant and the town attorney had an
established relationship that, despite its adversarial
nature, had always been ‘‘cordial and professional.’’ Id.
Second, we noted that the alleged threats followed a
surprisingly contentious court hearing, that the attorney
did not initially view the defendant’s remarks as a
threat, and that the defendant had apologized shortly
after making the remarks in question. Id., 454–55. On
the basis of the facts presented, we concluded that a
reasonable person would have viewed the defendant’s
remarks as a crude, but ultimately benign, way of simply
saying ‘‘ ‘what goes around comes around’ ’’ and reversed
the defendant’s conviction. Id., 456, 461.
The facts underlyng the present case differ signifi-
cantly from those considered in Krijger. Although the
phrase ‘‘you better watch your back’’6 can, in some
contexts, be used to sincerely caution an addressee of
an impending threat from some external source, it can
also be used as a veiled or conditional threat of violence.
See, e.g., State v. Lewis, Docket No. 96-P-0272 (DRF),
1997 WL 589914, *3 (Ohio App. August 22, 1997) (‘‘A
statement such as ‘you better watch your back’ is what
is known in law as a conditional threat. . . . Even in
the absence of a reference to a specific action, the
logical import of such a statement is that the person is
being threatened with potential physical harm.’’ (Cita-
tions omitted.)).7 The record is bereft of any suggestion
that the defendant’s decision to yell these words at
Cherney was intended to convey the former sentiment.
See State v. Taveras, supra, 183 Conn. App. 390 (Elgo,
J., dissenting.) (‘‘[t]his is not a case of a bystander
alerting a pedestrian to an errant vehicle’’). The defen-
dant’s history at the preschool, his general demeanor
during the course of this particular incident itself, and
the subsequent reactions of the preschool’s staff, on
balance, appear objectively to indicate the threat of the
possibility of violence.
First, Bevilaqua’s testimony suggests the defendant
had a hostile relationship with preschool staff. Bevila-
qua not only stated that the defendant had previously
caused several ‘‘escalated interaction[s]’’ at the pre-
school but also specifically testified that she had pre-
viously seen the defendant act in a threatening manner.
See State v. Krijger, supra, 313 Conn. 454 (‘‘[w]hen the
alleged threat is made in the context of an existing or
increasingly hostile relationship, courts are more apt to
conclude that an objectively reasonable speaker would
expect that the statement would be perceived by the
listener as a genuine threat’’). The fact that employees
of the preschool notified Bevilaqua of the defendant’s
late arrival even before it occurred, together with the
fact that Bevilaqua immediately decided to return to
the preschool because she ‘‘knew things would get esca-
lated,’’ indicates at the very least that this history fell
far short of the ‘‘cordial and professional’’ relationship
evinced by the record in Krijger.8
Although we agree with the defendant that evidence
adduced by the state does not detail his precise physical
movements during the incident in question, we cannot
concur with his blanket assertion that there was ‘‘no
evidence’’ of his conduct on that day. The evidence
recounted previously in this opinion indicates that the
defendant was irritated by the call he had initially
received, that he became argumentative with staff after
he arrived, and that his conduct eventually escalated
to the point that he was asked to leave. After exiting
through a set of locked doors, the defendant turned
around, yelled at Cherney, and then unsuccessfully
attempted to reenter the building. While neither Bevila-
qua nor Kelly was able to describe the exact manner
in which the defendant had attempted to open those
doors, the evidence suggests that he was acting in an
‘‘enraged’’ and ‘‘intimidating’’ manner at that particular
moment in time. We agree with Judge Elgo’s conclusion
that, in light of the foregoing, the trial court could have
reasonably found by a preponderance of the evidence
that the defendant’s attempt to reenter the preschool
was, at least more likely than not, ‘‘aggressive in nature.’’
State v. Taveras, supra, 183 Conn. App. 386 (Elgo, J., dis-
senting).
Another important factor in our independent analysis
is the reactions of the preschool’s staff. Unlike the attor-
ney in Krijger, who waited two days to contact the
police, staff members in the present case immediately
contacted their supervisor, Bevilaqua, to tell her what
had occurred. Bevilaqua testified that, when she arrived
at the preschool shortly thereafter, she found that her
staff was ‘‘shaken up’’ and ‘‘concerned’’ by what had
transpired. Bevilaqua then immediately contacted the
police,9 formally prohibited the defendant from reenter-
ing the preschool, began pursuing a restraining order,
and hired a police officer for additional security the
following day.10 The immediate pursuit of these particu-
lar preventative measures reasonably suggests a spe-
cific fear of physical violence. The record now before
us contains no suggestion that these measures were
viewed, either contemporaneously or in hindsight, as
an overreaction to the defendant’s remarks.
Ultimately, the state’s decision to present its case
against the defendant through Bevilaqua and Kelly, nei-
ther of whom actually witnessed the defendant’s con-
duct at the preschool on that particular day, makes this
case a harder one. Prosecutors, in deciding to accuse
individuals of committing breach of the peace in the
second degree in violation of § 53a-181, and, then,
judges and juries in making findings of fact, are required
to separate incidents that reflect the normal agitations
of life from those that are truly injurious to our society.
In the absence of any direct evidence of the defendant’s
conduct, the trial court was left with only secondhand
accounts to decide whether the defendant had crossed
that line. Nevertheless, we agree with Judge Elgo’s con-
clusion that, particularly in light of the lower standard
of proof attendant to violations of probation, the evi-
dence of the defendant’s conduct and demeanor, together
with the reactions that followed, is sufficient to support
the trial court’s implicit findings in that regard.
As an appellate tribunal, our constitutional obligation
to independently examine the evidentiary record requires
us to determine only whether a reasonable person in
the defendant’s position would have known that the
use of the phrase ‘‘you better watch your back,’’ com-
bined with his demeanor and other surrounding con-
text, would be perceived as a serious threat of physical
violence. See, e.g., State v. Taupier, supra, 330 Conn.
190–94. The state has shown through the evidence pre-
sented that those remarks were, in fact, viewed as a
threat of violence by Bevilaqua and her staff. The defen-
dant’s choice of words, his previous interactions with
preschool staff, the descriptions of his demeanor, and
his attempt to reenter the preschool at the height of
the altercation, collectively, point toward the conclu-
sion that their perception was, if nothing more, objec-
tively reasonable. As a result, we disagree with the
Appellate Court’s conclusion that the defendant’s remarks
warrant first amendment protection11 and remand the
case for consideration of the defendant’s claims with
respect to the admission of Bevilaqua’s testimony. See
footnote 2 of this opinion.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
consider the defendant’s remaining claims on appeal.
In this opinion ROBINSON, C. J., and MULLINS,
ECKER and KELLER, Js., concurred.
1
We note that, because the sentences of incarceration imposed on each
of these convictions were to run consecutively, rather than concurrently,
the Appellate Court’s recitation of the defendant’s total effective sentence
was technically inaccurate. See State v. Taveras, 183 Conn. App. 354, 359,
193 A.3d 561 (2018).
2
Kelly’s affidavit was admitted as a full exhibit without objection. Although
defense counsel objected to portions of Bevilaqua’s testimony on hearsay
grounds, the trial court overruled that objection. In a subsequent articulation,
the trial court expressed its view that, although Bevilaqua’s testimony consti-
tuted hearsay, it was nonetheless admissible for the purpose of proving the
defendant’s violation of probation because it was ‘‘relevant, reliable, and
probative.’’ See, e.g., State v. Gumbs, 94 Conn. App. 747, 751, 894 A.2d 396,
cert. denied, 278 Conn. 917, 899 A.2d 622 (2006). The defendant assigned
error to the admission of this testimony in his initial appeal, but the Appellate
Court declined to reach that issue in its decision. See State v. Taveras,
supra, 183 Conn. App. 357 n.2. In briefing the present appeal, the defendant
has argued only that the whole of the state’s evidence, including Bevilaqua’s
testimony, is insufficient to support the trial court’s judgments. Questions
related to the admissibility of Bevilaqua’s testimony were neither briefed
nor argued before this court.
3
The state also charged the defendant with violating the terms of his
probation during a completely separate incident on April 16, 2014, but pre-
sented no evidence with respect to that alleged violation at the defendant’s
hearing. See State v. Taveras, supra, 183 Conn. App. 361 n.10.
4
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place; or . . . (3) threatens to commit any
crime against another person or such other person’s property . . . . For
purposes of this section, ‘public place’ means any area that is used or
held out for use by the public whether owned or operated by public or
private interests.’’
Although portions of the prosecutor’s arguments before the trial court
appear to track the language of § 53a-181 (a) (1), the state subsequently
relied on § 53a-181 (a) (3) as an alternative ground for affirmance when
arguing the case before the Appellate Court. The Appellate Court subse-
quently examined the sufficiency of the state’s evidence under both subdivi-
sions of § 53a-181 (a). State v. Taveras, supra, 183 Conn. App. 373–74. The
defendant raises no objection to that approach in the present appeal and,
instead, argues only that the Appellate Court correctly concluded that the
state’s evidence fell short under either statutory provision.
5
During oral argument before this court, the state abandoned any chal-
lenge to the Appellate Court’s conclusion that the defendant’s speech did
not rise to the level of fighting words. See, e.g., Chaplinsky v. New Hamp-
shire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
6
Although Bevilaqua and Kelly provided slightly different accounts of the
defendant’s actual words, given the surrounding context, ‘‘you better watch
yourself’’ and ‘‘you better watch your back’’ can both be reasonably con-
strued as a threat of physical violence.
7
The fact that the defendant was locked out of the preschool at the
time and, therefore, was unable to immediately carry out his threat is not
determinative. See, e.g., State v. Carter, 141 Conn. App. 377, 401, 61 A.3d
1103 (2013) (threats while defendant was handcuffed), aff’d, 317 Conn. 845,
120 A.3d 1229 (2015); see also United States v. Voneida, 337 Fed. Appx.
246, 249 (3d Cir. 2009) (threats while defendant was incarcerated).
8
The Appellate Court based its own true threats analysis in the present
case, in part, on the assumption that ‘‘there is . . . no evidence that Cherney
had previously witnessed [the defendant’s] prior behavior . . . .’’ State v.
Taveras, supra, 183 Conn. App. 381. There is, however, testimony in the
record indicating that the school’s staff was generally aware of previous
incidents involving the defendant. Specifically, in describing the reaction of
her staff to the incident at issue in the present case, Bevilaqua testified as
follows: ‘‘I think . . . people were concerned. It wasn’t our first interaction
with [the defendant], [i]t certainly wasn’t our first escalated interaction, and
people were concerned, [m]y staff were concerned . . . .’’ Bevilaqua also
indicated that her staff had originally called to tell her about the defendant’s
late arrival ‘‘because this was not the first incident . . . .’’ In our view, it
is more than reasonable to infer that Cherney, as manager at the preschool,
would have been aware of those same incidents herself.
9
As Judge Elgo’s dissent aptly observes: ‘‘Bevilaqua explained that the
preschool’s ‘internal policy’ was to contact [the] police ‘when something
escalates’ to the point of ‘[s]taff being threatened.’ Consistent with that
policy, Bevilaqua testified that she contacted the Danbury Police Depart-
ment, whose officers took statements from staff members. Questioned as
to how she differentiates between ‘a small threat, like . . . I hate this place,’
and something ‘larger’ and more substantial, Bevilaqua testified that she
was ‘trained to know the difference.’ ’’ State v. Taveras, supra, 183 Conn.
App. 386.
10
We note that the true threats exception is specifically designed to guard
against the deadweight losses to our society that are unique to threats of
physical violence. See Haughwout v. Tordenti, supra, 332 Conn. 559, 571
(true threats exception ‘‘protect[s] individuals from the fear of violence
and from the disruption that fear engenders’’ (emphasis added; internal
quotation marks omitted)); State v. Pelella, 327 Conn. 1, 17, 170 A.3d 647
(2017) (‘‘[t]hreatening speech . . . works directly the harms of apprehen-
sion and disruption, whether the apparent resolve proves bluster or not and
whether the injury is threatened to be immediate or delayed’’ (internal
quotation marks omitted)).
11
In light of this conclusion, we need not consider the state’s claim that
the defendant’s conduct, as opposed to his speech, constituted a breach of
the peace in the second degree.