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*********************************************** 
STATE v. TAVERAS—DISSENT

ELGO, J., dissenting. In the present case, the trial

court found, by a preponderance of the evidence, that

the defendant, Kerlyn M. Taveras, violated the terms of

his probation by committing the misdemeanor of breach

of the peace in the second degree in violation of General

Statutes § 53a-181 (a) (1).1

I believe that the testimonial

and documentary evidence admitted at the probation

revocation hearing substantiates that finding. Accordingly, I respectfully dissent.

At the outset, I note a basic point of disagreement

with the majority, as I do not believe that the defendant

was found in violation of probation solely on the basis

of the words that he used on the afternoon of March

11, 2014. To the contrary, I believe that a fair reading

of the trial court’s oral decision indicates that the court

predicated its finding on the defendant’s conduct that

afternoon. As the majority acknowledges, the court in

its decision explicitly stated that its judgments were

based in part on ‘‘the threatening nature and demeanor

of’’ the defendant. In my view, the critical question

is whether the record contains evidence to support a

finding that the defendant, through his conduct and

demeanor as the events of March 11, 2014, unfolded,

engaged in threatening behavior in a public place, as

§ 53a-181 (a) (1) requires.

Before turning to the evidence admitted at the probation revocation hearing, I note the well established standard that governs review of the evidentiary phase of

such proceedings. ‘‘The law governing the standard of

proof for a violation of probation is well settled. . . .

[A]ll that is required in a probation violation proceeding

is enough to satisfy the court within its sound judicial

discretion that the probationer has not met the terms

of his probation. . . . It is also well settled that a trial

court may not find a violation of probation unless it

finds that the predicate facts underlying the violation

have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce

a reasonable belief that it is more probable than not

that the defendant has violated a condition of his or

her probation. . . . In making its factual determination, the trial court is entitled to draw reasonable and

logical inferences from the evidence. . . . Accordingly, [a] challenge to the sufficiency of the evidence

is based on the court’s factual findings. The proper

standard of review is whether the court’s findings were

clearly erroneous based on the evidence. . . . A court’s

finding of fact is clearly erroneous and its conclusions

drawn from that finding lack sufficient evidence when

there is no evidence in the record to support [the court’s

finding of fact] . . . 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. . . . In making this determination, every reasonable presumption must be given

in favor of the trial court’s ruling.’’ (Citation omitted;

emphasis added; internal quotation marks omitted.)

State v. Maurice M., 303 Conn. 18, 26–27, 31 A.3d 1063

(2011). Furthermore, as with any evidential insufficiency claim, we do not ask whether there is a reasonable view of the evidence that would result in a finding

favorable to the defendant; rather, we ask whether there

is a reasonable view of the evidence that supports the

finding of the trier of fact. See State v. Revels, 313 Conn.

762, 778, 99 A.3d 1130 (2014), cert. denied, U.S. ,

135 S. Ct. 1451, 191 L. Ed. 2d 404 (2015).

The evidence before the trial court included the testimony of the defendant’s probation officer, Christopher

Kelly, and Monica Bevilaqua, the director of the preschool where the altercation in question transpired.

Also admitted into evidence were various documents

regarding the defendant’s underlying convictions, as

well as the violation of probation arrest warrant application (application) prepared by Kelly, which was admitted as a full exhibit without any objection by the

defendant.2

As noted in the majority opinion, the defendant

arrived at the preschool approximately forty minutes

late on the afternoon of March 11, 2014.3 When he

arrived, Bevilaqua testified that the defendant was ‘‘irritated and not happy with staff,’’ and ‘‘already escalated.’’

After picking up his son from his classroom, Kelly

stated, in his sworn affidavit included in the application,

that the defendant ‘‘became extremely agitated’’ and

then ‘‘began to argue with staff.’’ That affidavit further

indicates that the argument grew so heated that ‘‘[s]taff

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.’’4 Bevilaqua testified

that, as the defendant exited the preschool, the assistant

education manager ‘‘said something back to him.’’ In

response, Bevilaqua testified, the defendant, who was

then outside the locked door, ‘‘turned and said, better

watch yourself, you better be careful . . . .’’ In the

affidavit contained in the application, Kelly stated that

the defendant was yelling as he made those remarks.5

As Kelly’s affidavit indicates, preschool staff reported

that the defendant was ‘‘so enraged’’ and ‘‘intimidating’’

at that time. Moreover, after uttering those remarks,

Bevilaqua testified that the defendant attempted ‘‘to get

back in’’ the preschool, but could not penetrate the

locked door. Although the majority correctly notes that

there is no evidence describing precisely how the defendant attempted to open the door, I believe the critical

import of the evidence of his attempted reentry is that

it demonstrates that the defendant’s shouted remarks

not only were made while he was in an enraged state,

but were accompanied by a physical gesture that the
court reasonably could infer to be aggressive in nature.

The court also was presented with evidence of the

reaction that the defendant’s conduct and demeanor

caused among preschool staff that afternoon. Bevilaqua

testified that when she arrived at the preschool shortly

after the altercation, her staff informed her that they

had been threatened by the defendant and, as a result,

were ‘‘shaken up’’ and very concerned. Bevilaqua testified that she personally had observed the defendant

behave in a threatening manner on a prior occasion,

which informed her response to the reports of her staff.

Bevilaqua explained that the preschool’s ‘‘internal policy’’ was to contact police ‘‘when something escalates’’

to the point of ‘‘[s]taff being threatened.’’ Consistent

with that policy, Bevilaqua testified that she contacted

the Danbury Police Department, 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.’’ In making the determination to

contact law enforcement, Bevilaqua also indicated that

she was cognizant that this ‘‘certainly wasn’t our first

escalated interaction’’ with the defendant.

Bevilaqua was present as police officers took statements from her staff regarding the incident. She also

confirmed that the altercation had an effect on people

within the preschool for the remainder of that day.

In light of the defendant’s conduct at the preschool,

Bevilaqua asked the Danbury Police Department to

ensure that the defendant ‘‘not be allowed back on’’ the

preschool property.6 She also looked into ‘‘whether or

not we could get a restraining order’’ against the defendant because she was ‘‘that concerned about his behavior.’’ Later that night, Bevilaqua was informed by an

officer of the Danbury Police Department that the

defendant had been arrested. Despite that arrest, Bevilaqua nevertheless took further actions to protect the

preschool, testifying that ‘‘[w]e hired a police officer to

be there the next morning.’’

At the probation revocation hearing, Kelly testified

that ‘‘[the defendant] and I had a conversation after his

breach of peace arrest’’ stemming from the defendant’s

conduct at the preschool on March 11, 2014. In that

conversation, Kelly and the defendant discussed the

defendant’s need ‘‘to cool it’’ and ‘‘not be as confrontational in situations.’’ Also in evidence before the trial

court was documentation of the convictions underlying

the defendant’s probation. The record indicates that the

defendant had pleaded guilty, under separate dockets,

to two counts of threatening in the second degree in

violation of General Statutes § 53a-62 and one count of

assault in the third degree in violation of General Statutes § 53a-61 (a) (1). That evidence was admitted without objection by the defendant and properly informed
the court’s perspective as trier of fact in the present

case. See State v. Megos, 176 Conn. App. 133, 148, 170

A.3d 120 (2017).

In light of the foregoing evidence, I believe that the

court reasonably could determine that the defendant,

‘‘with intent to cause inconvenience, annoyance or

alarm, or recklessly creating a risk thereof,’’ engaged

in threatening behavior in a public place in violation of

§ 53a-181 (a) (1). Significantly, the present case involves

not a criminal prosecution, but a probation revocation

hearing, which ‘‘is not a criminal proceeding.’’ Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79

L. Ed. 2d 409 (1984). Rather, ‘‘the probation revocation

procedure established by [General Statutes] § 53a-32 is

akin to a civil proceeding.’’ State v. Davis, 229 Conn.

285, 295, 641 A.2d 370 (1994). Criminal cases such as

State v. Krijger, 313 Conn. 434, 97 A.3d 946 (2014),7

in

which the beyond a reasonable doubt burden of proof

applied, therefore are distinguishable from the present

case, as ‘‘a probation violation need be proven only by

a preponderance of the evidence’’ and ‘‘need not be

sufficient to sustain a violation of a criminal law.’’

(Emphasis altered; internal quotation marks omitted.)

State v. Megos, supra, 176 Conn. App. 139; see also State

v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988) (‘‘the

authorities are virtually unanimous in concluding that

the standard of proof used in a criminal trial, namely

‘beyond a reasonable doubt,’ is not applicable to a probation revocation hearing’’). At a probation revocation

hearing, the state, therefore, must present evidence that

induces ‘‘a reasonable belief that it is more probable

than not that the defendant has violated a condition

of his or her probation.’’ State v. Davis, supra, 302.

Measured by that standard, I believe the evidence

before the court sufficiently established a violation of

§ 53a-181 (a) (1).

In reaching that conclusion, I am mindful of the trial

court’s superior vantage point, as finder of fact, to

‘‘credit and weigh’’ the evidence before it. Rockhill v.

Danbury Hospital, 176 Conn. App. 39, 52 n.6, 168 A.3d

630 (2017); accord Pagano v. Ippoliti, 245 Conn. 640,

654, 716 A.2d 848 (1998) (‘‘[t]he trial court, having heard

the testimony and observed the witnesses, was in a

position far superior to ours to judge the evidentiary

record as a whole’’). By their very nature, appellate

tribunals are not privy to the inflections in a witness’

voice or the body language that the printed record cannot capture. For that reason, courts like ours afford a

great degree of deference to the subsidiary findings and

credibility assessments of the trial court. See Jones v.

State, 328 Conn. 84, 96–97, 177 A.3d 534 (2018). In its

oral decision, the court credited Bevilaqua’s testimony,

finding that she took steps to secure the preschool on

March 11, 2014, which included immediately contacting

law enforcement, due to the ‘‘threatening nature and

the demeanor’’ of the defendant that afternoon. In so
evaluating Bevilaqua’s testimony, the court observed

details that the record before us does not reflect. We

therefore are obligated to defer to the court’s assessment of the credibility of, and proper weight accorded

to, that evidence.

Furthermore, it is fundamental to our law that the

finder of fact is entitled to draw reasonable inferences

from the evidence before it. See State v. Berger, 249

Conn. 218, 224, 733 A.2d 156 (1999) (trier of fact may

draw whatever inferences from evidence it deems reasonable or logical). When a trial court ‘‘makes a factual

determination of whether a condition of probation has

been violated,’’ it likewise is free to ‘‘draw reasonable

and logical inferences from the evidence.’’ (Internal

quotation marks omitted.) State v. Faraday, 268 Conn.

174, 185, 842 A.2d 567 (2004). In its oral decision, the

court expressly noted its ability to make such inferences

as part of its finding that the defendant violated a condition of his probation. Our obligation to make every

reasonable presumption in favor of the trial court’s

finding that the defendant violated the terms of his

probation; State v. Hill, 256 Conn. 412, 425–26, 773 A.2d

931 (2001); encompasses such inferences.

In his principal appellate brief, the defendant argues

that ‘‘if the defendant shouted, ‘you better watch yourself, you better be careful,’ to [a staff member] as she

attempted to cross the street in front of an out-of-control truck, her reaction would not be fear or offense

but gratitude.’’ The defendant also offers a series of

purportedly ‘‘plausible reading[s]’’ of those remarks.

What the defendant fails to appreciate is the precise

context in which his remarks arose. This is not a case

of a bystander alerting a pedestrian to an errant vehicle.

Nor is it a case, as the defendant’s counsel hypothetically suggested at the revocation hearing, of a parent

who simply ‘‘comes to the school [and] gets mad and

says . . . you better watch it . . . .’’ Rather, the evidence adduced at the revocation hearing indicates that

this is a case in which those remarks were made by an

individual on probation for committing, inter alia, the

crime of threatening in the second degree. This is a

case in which the evidence indicates that the defendant

arrived at the preschool ‘‘already escalated’’ and, after

picking his son up from his classroom, engaged in an

argument with preschool staff in front of other students

and parents. The record further indicates that while

arguing with staff, the defendant ‘‘became extremely

agitated,’’ to the point that staff informed the defendant

that he had to leave the premises. In addition, the record

indicates that when the defendant made the remarks

in question, he was yelling at the preschool staff, and

then immediately attempted to penetrate the locked

door and reenter the preschool, conduct which the

court reasonably could infer to be an aggressive physical gesture.
The court was presented with evidence that the staff

present during the altercation with the defendant

described him as ‘‘so enraged’’ and ‘‘intimidating’’ at that

time. The court also heard testimony that the preschool

staff was so shaken and alarmed by the behavior of

the defendant that they called the police, explored the

possibility of obtaining a restraining order against the

defendant, and then hired a police officer to be present

at the preschool the following day. The defendant’s

probation officer testified that, following that incident,

he and the defendant discussed the defendant’s conduct

at the preschool and his need to ‘‘cool it’’ and not be

so ‘‘confrontational.’’

Given that evidence, which provides the necessary

context in which this altercation arose, I believe that the

trial court reasonably could find, by a preponderance of

the evidence, that the defendant violated his probation

pursuant to § 53a-32 (a) by having committed a breach

of the peace in the second degree in violation of § 53a181 (a) (1). In its appellate brief, the state analogizes

the present case to State v. Simmons, 86 Conn. App.

381, 389, 861 A.2d 537 (2004) (conviction based on

defendant’s conduct and not his speech), cert. denied,

273 Conn. 923, 871 A.2d 1033, cert. denied, 546 U.S. 822,

126 S. Ct. 356, 163 L. Ed. 2d 64 (2005),8 and submits

that the defendant’s threatening remarks ‘‘were simply

a component of his disruptive and aggressive conduct

while the preschool was still in session.’’ I agree.

Were this a criminal prosecution governed by the

beyond a reasonable doubt standard, the evidence in

the record might well be insufficient to sustain a finding

that the defendant violated § 53a-181 (a) (1). This case

involves a probation revocation hearing, however, at

which a less burdensome standard of proof applies. In

such proceedings, the trial court, as finder of fact, draws

inferences and makes predicate factual findings to

which every reasonable presumption must be given in

favor of their correctness. State v. Maurice M., supra,

303 Conn. 26–27. Applying that standard to the evidence

in the record, I would affirm the judgments of the trial

court finding the defendant in violation of the terms of

his probation.9

1 General Statutes § 53a-181 (a) provides: ‘‘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 (2) assaults or strikes another; or (3) threatens to commit

any crime against another person or such other person’s property; or (4)

publicly exhibits, distributes, posts up or advertises any offensive, indecent

or abusive matter concerning any person; or (5) in a public place, uses

abusive or obscene language or makes an obscene gesture; or (6) creates

a public and hazardous or physically offensive condition by any act which

such person is not licensed or privileged to do. 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.’’

I recognize that the judgment file does not state precisely which subdivision of § 53a-181 (a) the court found applicable to the present case. At the

same time, I agree with the majority that the state’s theory of the case at

trial was that the defendant had committed a violation of § 53a-181 (a) (1)
due to his threatening behavior at the preschool on the afternoon of March

11, 2014. I also agree with the majority that the court, in its oral decision,

ultimately found that the defendant ‘‘violated his probation by committing

the crime of breach of the peace in the second degree on the basis of his

‘threatening nature and . . . demeanor’ at the preschool.’’ In light of the

foregoing, the court’s decision reasonably may be construed to conclude

that the defendant violated § 53a-181 (a) (1). Furthermore, the defendant

did not request an articulation to clarify the court’s determination; cf. State

v. Pierce, 64 Conn. App. 208, 210, 779 A.2d 233 (2001) (defendant requested

articulation of precise crime on which court found him in violation of

probation); and the defendant in this appeal has not claimed that he lacked

adequate notice of the grounds on which he was found to have violated his

probation. See State v. Maye, 70 Conn. App. 828, 839, 799 A.2d 1136 (2002).

2 At the first day of the probation revocation hearing, the court inquired

whether the violation of probation arrest warrant application was a full

exhibit. In response, the state’s attorney stated: ‘‘I have no objection to it

being a full exhibit, Your Honor. I know [defense] counsel had referred to

the court having it. I don’t know if counsel has any objection to the violation

of probation [application] being a full exhibit. [Defense counsel]?’’ The

defendant’s counsel, Attorney Gerald Klein, at that time stated, ‘‘Oh yes. I

have no objection.’’ The violation of probation arrest warrant application

then was admitted as a full exhibit and marked as court exhibit A. In this

appeal, the defendant has raised no claim with respect to the admission of

that application or the contents thereof.

3 Bevilaqua testified that this was not the first time that the defendant

had been late to pick up his son from the preschool and acknowledged that

there had been prior incidents with the defendant at the preschool. She

further testified that, when she received the initial report of the altercation

with the defendant, she hurried back to the preschool ‘‘because knowing

what we knew about the family and the situation, I knew it would get

escalated.’’

4

I recognize that Bevilaqua was asked whether the defendant had used

‘‘[t]hreatening words’’ prior to exiting the doors of the preschool, and that

she responded, ‘‘[a]t that point they were not.’’ Bevilaqua nonetheless did

not testify that the defendant’s behavior was not threatening at that time.

5 Kelly’s sworn statement in his affidavit, which was admitted as part of

court exhibit A, undermines the defendant’s claim in his reply brief that

there was no evidence that he ‘‘yelled, screamed, [or] raised his voice’’ when

making those remarks.

6

In his affidavit, Kelly stated that, following the defendant’s arrest on the

charge of breach of the peace in the second degree, the defendant ‘‘was

advised not to return to the [preschool] again, otherwise he would be arrested

for criminal trespass.’’

7

In State v. Krijger, supra, 313 Conn. 458, the defendant immediately

‘‘apologized for his behavior’’ following a heated confrontation with an

attorney and stated that ‘‘he hoped it would not adversely affect their working

relationship.’’ As our Supreme Court emphasized, ‘‘[t]he defendant’s contrition immediately following the incident is decidedly at odds with the view

that, just moments beforehand, he had communicated a serious threat

. . . .’’ Id. No such contrition was expressed by the defendant in the present case.

8

In Simmons, the beyond a reasonable doubt metric applied. State v.

Simmons, supra, 86 Conn. App. 385–86. The present case, by contrast,

involves a preponderance of the evidence determination.

9

I recognize that the defendant has raised other claims in this appeal,

including ones pertaining to the admission of hearsay testimony. Having

reviewed those arguments in light of applicable law, I perceive no error on

the part of the trial court.