Summary
reversing order of civil protection because of insufficient evidence as to one element of General Statutes § 46b-16a
Summary of this case from R. H. v. M. S.Opinion
AC 43256
10-19-2021
S. B-R. v. J. D.
Stephen A. Lebedevitch, for the appellant (defendant). Harold R. Burke, for the appellee (plaintiff).
Stephen A. Lebedevitch, for the appellant (defendant).
Harold R. Burke, for the appellee (plaintiff).
Alvord, Alexander and Eveleigh, Js.
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 objective standard in its determination of "reasonable fear’’ on the first element of stalking, and (2) there was insufficient 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 relevant 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 defendant made disturbing comments to the plaintiff in person, over e-mail, and through text messages. Specifically, 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 plaintiff 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’’ and also a text message wherein he expressed suicidal thoughts. After March 3, 2019, there were no communications of any nature between the parties.
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 separated us.’’
On or about July 8, 2019, the plaintiff filed an application for an order of civil protection, pursuant to General Statutes § 46b-16a. 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 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 investigator.
"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 Muhammad 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 apprehension 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 threshold and thickness of skin become more or less significant . 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 [defendant] shall stay away from her home or wherever she shall reside. The [defendant shall] not contact in any matter, including written, electronic, or telephone contact. 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.
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.
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 defendant'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 reasonable 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 presented. ... In determining whether a trial court has abused its broad discretion ... we allow every reasonable 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 intimidate or retaliate against the applicant, the court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant. ...’’
In order for a court to issue an order of civil protection 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 continue to commit such acts. See C. A. v. G. L. , supra, 201 Conn. App. at 740, 243 A.3d 807 ; 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, at 739, 243 A.3d 807.
We begin with the trial court's determination on the first element of the statute, specifically, that the defendant'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 necessary analysis when it applied only the subjective standard 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 situation and the facts must be evaluated from the perspective of the victim, i.e., did she in fact fear for her physical safety. ... If so, that fear must be objectively reasonable, i.e., a reasonable person under the existing circumstances would fear for his or her personal safety.’’ (Citations omitted; internal quotation marks omitted.) C. A. v. G. L. , supra, 201 Conn. App. at 740, 243 A.3d 807. 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. at 740, 243 A.3d 807. In applying this logic, the court diluted the necessary finding 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 ....’’
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. at 740 n.6, 243 A.3d 807.
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 reasonable. As a result of the court's failure to apply the correct standard, it abused its discretion in issuing the protective 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 plaintiff's application for an order of civil protection in July, 2019, the plaintiff presented no evidence that the defendant 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 community college for that semester. He further testified that in mid-April, 2019, he saw the plaintiff from a distance on the campus and walked away without contacting 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 communication with her. Although there was testimony that both parties would be returning as students to the community 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 determinations’’; 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 relevant statute.
In Kayla M. v. Greene , supra, 163 Conn. App. at 506, 136 A.3d 1, 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] testimony 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 irrelevant.
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.
EVELEIGH, J., dissenting.
I respectfully dissent. I disagree with the conclusion of the majority that (1) the trial court did not apply an objective standard to the first element of stalking in its determination of "reasonable fear’’ and (2) there is insufficient evidence to support a finding that it was reasonably likely that the defendant, J. D., would continue to stalk or to commit acts designed to intimidate or retaliate against the plaintiff, S. B-R., as required for an order of civil protection pursuant to General Statutes § 46b-16a. To the contrary, I would conclude that (1) the trial court correctly followed the statute, and (2) there is sufficient evidence in the record to support the trial court's decision granting the plaintiff's application for an order of civil protection pursuant to § 46b-16a. Accordingly, I would affirm the judgment of the trial court.
Our Supreme Court has not yet ruled on the issue of whether a § 46b-16a protective order may be granted when (1) there is prior evidence of criminal stalking, (2) there is a threat of a future criminal act, and (3) the defendant's testimony is not credible.
I begin by setting forth the factual background of this action, as gleaned from the record. At all relevant times, the plaintiff and the defendant were students at a community college, where they were both enrolled in the college's nursing program. On July 8, 2019, the plaintiff filed an application for an order of civil protection. A hearing was held on the plaintiff's application on July 22, 2019, at which both the plaintiff and the defendant testified.
The plaintiff testified that she knew the defendant from school and that, on or about February 28, 2019, the defendant had sent her an "absurd amount of e-mails stating that, first, my marriage would have intervene[d] with things between us ....’’ When asked whether she was married, the plaintiff explained that she was not and that, in an effort to get the defendant to stop communicating with her, she had lied to the defendant and told him that she was getting married. When asked whether the defendant had made any statements to her that made her fear for her personal safety, the plaintiff responded yes. Specifically, she testified about an e-mail that the defendant had sent her on or about March 1, 2019, which stated: "Honestly, I want to jump on your back a little a rage and that would be dumb.’’ The plaintiff further testified that, on March 3, 2019, the defendant sent her text messages about being suicidal, and that, on February 28, 2019, while in the presence of another person, he had made comments about her breasts that made her fearful of his conduct. With respect to the comments about her breasts, the plaintiff stated that the defendant "was being cocky and ... was trying to intimidate [her].’’ Although the plaintiff acknowledged that the communications from the defendant ceased after March 3, 2019, she testified in July, 2019, that his communications with her caused her to fear for her personal safety, that she still feared for her personal safety, that she planned to attend classes at the community college in the fall, and that she feared that her safety would be at risk if she had any contact with the defendant.
The defendant testified that, in the upcoming fall semester, he did have classes with the plaintiff at the community college. He also acknowledged that he suffers from "a major depressive disorder,’’ which includes suicidal thoughts. Although he claimed that the symptoms underlying the disorder are "all controlled,’’ he also acknowledged that all of the symptoms have "not gone yet.’’
The court granted the plaintiff's application for an order of civil protection in an oral decision, stating that the "[s]tatute 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 [that] she's very apprehensive, her conduct on the stand indicated she's reliving some of these things. Things which, depending on your level of threshold and thickness of skin, become more or less significant. But, it's very clear that this is very upsetting to her, and it's affected her ability to carry on life's activities.’’ (Footnote added.) The court ordered the defendant not to have any contact with the plaintiff and to stay 100 yards away from the plaintiff, and its order was effective for one year, until July 22, 2020.
The court clearly relied on General Statutes § 53a-181e (a), which provides that a person is guilty of stalking in the third degree when such person "recklessly causes another person to reasonably ... fear for his or her physical safety ....’’
Although the order of civil protection has expired, the present appeal is not moot. See C. A . v. G. L ., 201 Conn. App. 734, 736 n.4, 243 A.3d 807 (2020) (applying to order of civil protection under § 46b-16a principle that "expiration of a six month domestic violence restraining order issued pursuant to General Statutes § 46b-15 does not render an appeal from that order moot due to adverse collateral consequences’’ (internal quotation marks omitted)).
The decision of the majority to reverse the judgment of the trial court hinges on the majority's conclusion that (1) the trial court did not apply an objective standard to the first element of stalking in its determination of "reasonable fear,’’ and (2) "the plaintiff presented no evidence that the defendant would continue to stalk her.’’ I disagree and would conclude, after "allow[ing] every reasonable presumption in favor of the correctness of [the trial court's] action’’; (internal quotation marks omitted) Kayla M . v. Greene , 163 Conn. App. 493, 504, 136 A.3d 1 (2016) ; that the trial court's decision was reasonably supported by the evidence in the record or the inferences drawn therefrom.
The majority mentions in its decision the fact that the trial court made no explicit finding on the record that "the defendant would continue to commit acts of stalking against the plaintiff’’ but never states that such an express finding is required. Pursuant to § 46b-16a (b), a trial court may issue an order of civil protection if it finds "that there are reasonable grounds to believe that the respondent has committed acts constituting grounds for issuance of an order ... and will continue to commit such acts or acts designed to intimidate or retaliate against the applicant ....’’ This court has explained previously 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.’’ Kayla M . v. Greene , 163 Conn. App. 493, 506, 136 A.3d 1 (2016). Neither the statute nor case law directs that the court's findings must be written or express. Moreover, appellate courts "presume that the trial court, in rendering its judgment ... undertook the proper analysis of the law and the facts.’’ (Internal quotation marks omitted.) Brett Stone Painting & Maintenance, LLC v. New England Bank , 143 Conn. App. 671, 681, 72 A.3d 1121 (2013). In the present case, given the trial court's reference, in its oral decision, to the "very clear’’ requirements of the "statute,’’ it reasonably can be inferred that the court relied on the language in the statute in rendering its decision.
I agree with the majority that a subjective-objective test applies to the statute. I respectfully disagree, however, with the majority's conclusion that the trial court did not consider the objective part of the test. The trial court was reading from the statute when it issued its decision. Its emphasis on the subjective part of the test does not necessarily mean that the objective part was excluded. In Connecticut, our appellate courts do not presume error on the part of the trial court. See Carothers v. Capozziello , 215 Conn. 82, 105, 574 A.2d 1268 (1990). Rather, "we presume that the trial court, in rendering its judgment ... undertook the proper analysis of the law and the facts.’’ S & S Tobacco & Candy Co . v. Greater New York Mutual Ins. Co ., 224 Conn. 313, 322, 617 A.2d 1388 (1992). In my view, the reference to Muhammed Ali and Whistler's Mother, and to a person with thin skin, may be interpreted as an example of the judge considering how much each case had to be determined on the basis of the facts and circumstances surrounding it, and whether a reasonable person would be fearful under the circumstances. Indeed, in cases in which there has been no finding by the trial court, appellate courts have searched the record to see if the trial court's decision had an adequate basis in the record. Thus, in Brett Stone Painting & Maintenance, LLC v. New England Bank , 143 Conn. App. 671, 681, 72 A.3d 1121 (2013), in which a finding of default was a critical element in the case and the trial court had not made that explicit finding, the Appellate Court reviewed the record in its conclusion that an implicit finding of default was warranted. Likewise, in Young v. Commissioner of Correction , 104 Conn. App. 188, 190 n.1, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008), in which the question of whether the habeas petitioner was in custody had not been decided in order for the petitioner to maintain the habeas action, the Appellate Court was able to infer from the transcript the facts on which the trial court's decision appeared to have been predicated. In the present case, the transcript is replete with the defendant's admissions to his deplorable conduct. These admissions would certainly justify the inference that the objective standard had been met.
In Kayla M . v. Greene , supra, 163 Conn. App. at 506, 136 A.3d 1, 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.’’ In Kayla M ., this court found that "there was sufficient evidence in the record from which the court reasonably could have concluded that there were reasonable grounds to believe that the plaintiff subjectively feared for her physical safety.’’ Id., at 511, 136 A.3d 1. Specifically, this court found that the trial court had credited the plaintiff's statements in her affidavit that she felt threatened by the defendant Edward Greene after he had grabbed her arm at her workplace and sent her a threatening e-mail, and that the trial court reasonably could have inferred, on the basis of those facts, that the plaintiff feared for her physical safety. Id. Moreover, although Greene testified at the hearing on the plaintiff's application for a civil protection order that "he had no intention of ever communicating with the plaintiff again’’; id. ; the trial court nevertheless found that he was " ‘unnaturally obsessed’ ’’ with the plaintiff, and it reasonably inferred, on the basis of that obsession, that he "would continue his previous course of conduct.’’ Id., at 511, 512, 136 A.3d 1.
In the present case, the court reasonably could have found, on the basis of the testimony presented, that there were reasonable grounds to believe that the plaintiff feared for her physical safety and that the defendant would continue in his course of conduct. We do not expect our trial judges to be soothsayers. All that is required is that there is a reasonable probability that the defendant will repeat the reported conduct such that there is a risk of imminent harm to the plaintiff. In this case, I cannot say that the decision of the trial court was an abuse of discretion or that its finding regarding the plaintiff's clear apprehension of the defendant was clearly erroneous.
The record here clearly shows that the defendant's conduct toward the plaintiff was truly bizarre and frightening. Clearly, the conduct was aberrant, obsessive, and delusional. He also threatened future assaultive conduct against the plaintiff when he said that he wanted to "jump on [her] back,’’ in rage, even though he acknowledged that "that would be dumb.’’ He further indicated delusional behavior when, in response to the plaintiff's statement to him that she was getting married, he stated that her marriage would interfere with their relationship. There was no relationship between the plaintiff and the defendant. On the basis of the plaintiff's testimony, however, the trial court reasonably could have inferred that the defendant wanted more than a mere friendship and that the plaintiff must have realized that, as she otherwise would not have invented the story about being married. See In re Adalberto S ., 27 Conn. App. 49, 54, 604 A.2d 822 ("court may draw reasonable, logical inferences from the facts proven’’), cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).
The defendant also testified that he has a major depressive disorder that causes him to have suicidal thoughts and that the disorder, which caused his actions, has not fully gone away. Much like in Kayla M . v. Greene , supra, 163 Conn. App. at 512, 136 A.3d 1, in which this court upheld the issuance of a civil protection order based, in part, on the defendant's obsession with the plaintiff, the defendant in the present case was fixated on the plaintiff, as evidenced by the numerous unwanted e-mail and text messages that he sent to her. In testifying about his major depressive disorder, the defendant stated that he thinks about things over and over, and he also acknowledged that the symptoms and depression associated with his disorder have not gone away yet. The trial court reasonably could have inferred from that testimony that it was reasonably probable that he would continue his conduct toward the plaintiff when school resumed. See State v. Richards , 196 Conn. App. 387, 397, 229 A.3d 1157 ("in determining whether the evidence supports a particular inference ... an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference’’ (internal quotation marks omitted)), cert. granted, 335 Conn. 931, 236 A.3d 218 (2020) ; Hannon v. Redler , 117 Conn. App. 403, 406, 979 A.2d 558 (2009) ("[i]t is within the province of the trial court to find facts and draw proper inferences from the evidence presented’’ (internal quotation marks omitted)); Lupoli v. Lupoli , 38 Conn. App. 639, 643, 662 A.2d 809 ("the role of the trial court as fact finder [is] to judge the credibility of the witnesses, to weigh the evidence and to draw logical inferences and conclusions from the facts proven’’), cert. denied, 235 Conn. 907, 665 A.2d 902 (1995).
A significant portion of the defendant's testimony on direct examination concerned his major depressive disorder, from which the defendant readily acknowledged that he suffers. He also testified and acknowledged that one of the behaviors of his disorder is obsessive type behavior. Under these circumstances, the court was free to accept or reject all or part of the defendant's testimony about his obsessive type behavior. See Kayla M . v. Greene , supra, 163 Conn. App. at 511–12, 136 A.3d 1 (court reasonably could have inferred from evidence produced at hearing that defendant was " ‘unnaturally obsessed’ ’’ with plaintiff, and, on basis of that obsession, court could have inferred that defendant would continue his previous course of conduct).
I also think it is important to note that the trial court in the present case had the benefit of hearing from both parties during the hearing and judging their credibility. The court could have accepted or rejected all or a part of the defendant's testimony. "Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.’’ (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co ., 171 Conn. App. 61, 93–94, 156 A.3d 539 (2017), aff'd, 333 Conn. 343, 216 A.3d 629 (2019). It would strain credulity for the court to have accepted the defendant's testimony that he had ideas of hurting himself only and never anyone else, when he clearly had issued a threat to jump on the plaintiff's back in rage. Further, the court obviously did not choose to accept the defendant's testimony that his condition was under control when the hearing occurred only a few months after his bizarre acts and he was going to attend the same school with the plaintiff in September. Moreover, the defendant freely admitted that he had considered suicide. Such an act of violence would certainly justify a trial judge to find that a protective order should issue to protect someone who had spurned him and against whom he had made a threat to jump on her back in rage.
The threat of future conduct has to be a significant element in any trial court's decision to issue a protective order, and there certainly was sufficient evidence of a probability of future assaultive conduct here to cause reasonable fear in the plaintiff and to satisfy the objective standard requirement. "[A]n 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. ... In determining whether there are reasonable grounds to believe that stalking occurred, it is instructive that, in the criminal context, [t]he phrase reasonable grounds to believe is synonymous with probable cause. ... While probable cause requires more than mere suspicion ... the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.’’ (Citations omitted; internal quotation marks omitted.) Kayla M . v. Greene , supra, 163 Conn. App. at 506, 136 A.3d 1. The defendant's credibility, or lack thereof, is a key element in this determination.
The majority concludes that it must reverse because the court did not consider the objective standard and there is no evidence of future conduct. I respectfully disagree because of the defendant's threat of jumping on the plaintiff's back in rage, his unwanted e-mails, the comment about the plaintiff's breasts, and his overall lack of credibility. I further disagree because it would be the rare case in which a defendant testified that he would keep doing the acts which brought him before the court or told someone else to that effect. The defendant in this case engaged in obsessive behavior. At the hearing, he admitted that part of his major depressive disorder has an obsessive component, namely, that he would keep thinking about the same thing over and over. He further testified that his condition was not fully resolved, as he must take medication every night and get treatment from counselors and therapists. Because he had threatened the plaintiff, his testimony that he never thought about hurting anyone else is not credible. In my view, reviewing both the evidence and the reasonable inferences derived therefrom, there clearly was no abuse of discretion in this matter.
For the foregoing reasons, I respectfully dissent.