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*********************************************** 
STATE OF CONNECTICUT v. DAVID

G. LIEBENGUTH

(AC 39506)

DiPentima, C. J., and Sheldon and Devlin, Js.

Syllabus

Convicted, following a trial to the court, of the crimes of breach of the

peace in the second degree and tampering with a witness, the defendant

appealed to this court. His conviction stemmed from an incident in

which he allegedly confronted and made racial slurs toward a parking

authority officer, M, over a parking ticket, and subsequently e-mailed

M’s supervisor suggesting why M should not appear in court to testify.

On appeal, the defendant claimed that the evidence adduced at trial

was insufficient to support his conviction of either charge. Held:

1. The trial court incorrectly concluded that the evidence adduced at trial

was sufficient to support the defendant’s conviction of breach of the

peace in the second degree: that court’s finding that the defendant twice

directed a racial slur at M in a belligerent tone, with an aggressive stance

and while walking toward him was clearly erroneous, as the defendant

was inside his car on both occasions when he made the racial slur, and

although the defendant used extremely vulgar and offensive language

that was meant to personally demean M, under the circumstances in

which he uttered that language it was not likely to tend to provoke a

reasonable person in M’s position immediately to retaliate with violence,

and, therefore, because M was unlikely to have retaliated with immediate

violence to the conduct for which the defendant was charged, the defendant’s words were not fighting words on which he might appropriately

be convicted of breach of the peace; accordingly, his conviction of

breach of the peace in the second degree could not stand.

2. The evidence adduced at trial was sufficient to support the defendant’s

conviction of tampering with a witness in violation of statute (§ 53a-151),

there having been ample evidence demonstrating that the defendant

intended to induce M to absent himself from a court proceeding; the state

presented evidence that the defendant sent an e-mail to M’s supervisor

implying that he would press felony charges against M and cause M to

lose his job if he appeared in court to testify, but that he would let the

matter drop if M did not appear in court to testify, and the defendant’s

claim that the e-mail did not constitute a true threat against M was

unavailing, as the state did not claim that the defendant tampered with

a witness by threatening him and, thus, was not required to prove, nor

was the trial court required to find, that the defendant threatened M in

order to establish that he sought to induce him not to testify for purposes

of § 53a-151, under which a defendant need not contact a witness directly

to be convicted.

(One judge concurring in part and dissenting in part)

Argued November 15, 2017—officially released April 17, 2018

Procedural History

Substitute information charging the defendant with

the crimes of breach of the peace in the second degree

and tampering with a witness, brought to the Superior

Court in the judicial district of Norwalk, geographical

area number twenty, and tried to the court, Hernandez,

J.; judgment of guilty, from which the defendant

appealed to this court. Reversed in part; judgment

directed.

Joseph M. Merly, with whom, on the brief, was John

R. Williams, for the appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,

state’s attorney, and Nadia C. Prinz, deputy assistant

state’s attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, David G. Liebenguth,

was convicted, following a bench trial, of breach of

the peace in the second degree in violation of General

Statutes § 53a-181 (a) (5) and tampering with a witness

in violation of General Statutes § 53a-151. The charges

were filed in connection with an angry confrontation

between the defendant and a parking authority officer

who had issued him a parking ticket, and a subsequent

e-mail from the defendant to the officer’s supervisor,

suggesting why the officer should not appear in court

to testify against him. The defendant now appeals,

claiming that the evidence adduced at trial was insufficient to support his conviction of either charge. We

affirm in part and reverse in part the judgment of the

trial court.

The following evidence was presented at trial.

Michael McCargo, a parking enforcement officer for the

town of New Canaan, testified that he was patrolling

the Morris Court parking lot on the morning of August

28, 2014, when he noticed that the defendant’s vehicle

was parked in a metered space for which no payment

had been made. He first issued a ticket for the defendant’s vehicle, then walked to another vehicle to issue

a ticket, while his vehicle remained idling behind the

defendant’s vehicle. As McCargo was returning to his

vehicle, he was approached by the defendant, whom he

had never before seen or interacted with. The defendant

said to McCargo, ‘‘not only did you give me a ticket,

but you blocked me in.’’ Initially believing that the

defendant was calm, McCargo jokingly responded that

he didn’t want the defendant getting away. When the

defendant then attempted to explain why he had parked

in the lot, McCargo responded that his vehicle was in

a metered space for which payment was required, not

in one of the lot’s free parking spaces. McCargo testified

that the defendant’s demeanor then ‘‘escalated,’’ with

the defendant saying that the parking authority was

‘‘unfucking believable’’ and telling McCargo that he had

given him a parking ticket ‘‘because my car is white.

. . . [N]o, [you gave] me a ticket because I’m white.’’

As the defendant, who is white, spoke with McCargo,

who is African-American, he ‘‘flared’’ his hands and

added special emphasis to the profanity he uttered.

Even so, according to McCargo, the defendant always

remained a ‘‘respectable’’ distance from him. Finally,

as the defendant was walking away from McCargo

toward his own vehicle, he spoke the words, ‘‘remember Ferguson.’’

After both men had returned to and reentered their

vehicles, McCargo, whose window was rolled down,

testified that he thought he heard the defendant say the

words, ‘‘fucking niggers.’’ This caused him to believe

that the defendant’s prior comment about Ferguson had

been made in reference to the then recent shooting of
an African-American man by a white police officer in

Ferguson, Missouri. He thus believed that the defendant

meant to imply that what had happened in Ferguson

‘‘was going to happen’’ to him. McCargo also believed

that by uttering the racial slur and making reference to

Ferguson, the defendant was trying to rile him up and

escalate the situation. That, however, did not happen,

for although McCargo found the remark offensive, and

he had never before been the target of such language

while performing his duties, he remained calm at all

times and simply drove away to resume his patrol.

Shortly thereafter, however, as he was driving away,

the defendant drove past him. As he did so, McCargo

testified that the defendant turned toward him, looked

directly at him with an angry expression on his face,

and repeated the slur, ‘‘fucking niggers.’’ McCargo noted

in his testimony that the defendant said the slur louder

the second time than he had the first time.

After the defendant drove out of the parking lot,

McCargo called his supervisor, who instructed him to

report the incident to the New Canaan police. In his

report, McCargo noted that there might have been a

witness to the interaction, whom he described as a

young white female. The defendant later was arrested

in connection with the incident on the charge of breach

of the peace in the second degree.

Next to testify was Mallory Frangione, the young

white female witness to the incident whom McCargo

had mentioned in his report. She testified that she

parked in the Morris Court parking lot around 9:45 a.m.

on the morning of August 28, 2014, and as soon as she

opened her car door, she heard yelling. She then saw

two men, McCargo and the defendant, who were standing outside of their vehicles about seventy feet away

from her. She observed that the defendant was moving

his hands all around, that his body movements were

aggressive and irate, and that his voice was loud. She

heard him say something about Ferguson, then say that

something was ‘‘f’ing unbelievable.’’ She further testified that she saw the defendant take steps toward

McCargo while acting in an aggressive manner. She

described McCargo, by contrast, as calm, noting that he

never raised his voice, moved his arms or gesticulated

in any way. McCargo ultimately backed away from the

defendant and got into his vehicle. The defendant, she

recalled, drove in two circles around the parking lot

before leaving. Frangione testified that witnessing the

interaction made her feel nervous and upset.

Karen Miller, McCargo’s supervisor at the New

Canaan Parking Department, also testified. Miller

received an e-mail from the defendant at work on March

6, 2015. The e-mail, which was admitted into evidence,

read as follows: ‘‘Please be advised that on March 12th

at 2 p.m.1

in a court of law in Norwalk, CT., I will prove

beyond any reasonable doubt that your meter maid did
in fact commit multiple crimes against me, including

at least one FELONY, as well as breaking CT vehicular/

traffic laws in the operation of his vehicle and New

Canaan town ordinances while on the job PRIOR to

any false allegations of breach of peace in the second

degree on my part. Additionally, as such, I also intend

to subsequently invoke and pursue New Canaan town

ordinances that would effectively require this meter

maid to resign, or be terminated, from his position.

‘‘Although it is not my desire to escalate this situation

to the point a mans job, career, and lively hood is on

the line, I must do what is necessary to prove my innocence. And in that course it will be proven your mater

maid did in fact commit multiple crimes, including at

least one FELONY, and infractions against me on that

day BEFORE I was forced to react to his criminal

actions against me.

‘‘Of course if this is what you want to see happen I

look forward to you and your meter maids presence in

court next week. It goes without mention that if your

meter maid does not show up in court this case will

be over and everyone can go peacefully on their own

way, no harm, no foul, no fallout.

‘‘It’s your choice now to make whatever recommendation you wish to your selectman. It will be MY

CHOICE to defend myself from these false charges next

week in court by proving (at minimum showing probable cause for an arrest!) your meter maid a criminal at

best.a FELON at worst. Perhaps the judge will remand

him to custody right then and there from his witness

chair?

‘‘Obviously not if he is not there.’’2

(Footnote added.)

Miller understood the e-mail to mean that McCargo

should absent himself from court proceedings.

McCargo also read the e-mail, the sending of which he

described as a ‘‘scare tactic.’’ He believed the defendant

sent the e-mail in order to persuade him not to go to

court and testify, and that if he did appear in court,

the defendant would pursue negative repercussions as

outlined in his e-mail.

After the state rested, the defendant moved for a

judgment of acquittal on both counts, which the court

denied. The defendant elected not to testify. The court,

ruling from the bench, found the defendant guilty on

both counts. It reasoned as follows: ‘‘In finding that

the defendant’s language and behavior is not protected

speech, the court considers the words themselves, in

other words, the content of the speech, the context

in which it was uttered, and all of the circumstances

surrounding the defendant’s speech and behavior.

‘‘The court finds that the defendant’s language, fucking niggers directed at Mr. McCargo twice . . . is not

protected speech. . . . The defendant’s use of the particular racial epithet is in the American lexicon, there
is no other racial epithet more loaded with racial animus, no other epithet more degrading, demeaning or

dehumanizing. It is a word which is probably the most

[vile] racial epithet a non-African-American can direct

towards an African-American. [The defendant] is white.

Mr. McCargo is African-American.

‘‘In light of this country’s long and shameful history

of state sanctioned slavery, Jim Crow segregation, state

sanctioned racial terrorism, financial and housing discrimination, the word simply has . . . no understanding under these circumstances other than as a word

directed to incite violence. The word itself is a word

likely to provoke a violent response.

‘‘The defendant is not however being prosecuted

solely for use of this word. All language must be considered in light of its context.

‘‘The court finds that considering . . . the content

of the defendant’s speech taken in context and in light

of his belligerent tone, his aggressive stance, the fact

that he was walking towards Mr. McCargo and moving

his hands in an aggressive manner, there’s no other

interpretation other than these are fighting words. And

he uttered the phrase not once but twice. It was

directed—the court finds that it was directed directly

at Mr. McCargo. There were no other African-Americans

present . . . in the parking lot when it happened, and

indeed Mr. McCargo’s unease and apprehension at hearing those words was corroborated by Mallory Frangione

who . . . said that she felt disconcerted by the defendant’s tone of voice and his aggressive stance and

actions.

‘‘With respect to count two, the court has . . . similarly considered the words that were used in the e-mail,

the subject e-mail. It finds that there is nothing in the

evidence which suggests that in sending the e-mail, the

defendant intended to comment or bring attention to

a matter of public concern in a public forum.3

. . .

‘‘[T]he content . . . of the communication . . .

itself was of an entirely personal nature. [The defendant] stated that he was willing to withdraw his claim

which he now suggests was a matter of public interest,

in exchange for a purely personal benefit, namely the

withdrawal of criminal charges which were then pending against [him].

‘‘So for those reasons, the court rejects the defendant’s claim that either or both of these statements were

protected first amendment speech.’’ (Footnote added.)

The court later sentenced the defendant as follows: on

the charge of breach of the peace in the second degree,

to a term of six months, execution suspended, followed

by two years of probation on several special conditions,

plus a $1000 fine; and on the charge of tampering with a

witness, a consecutive term of four years incarceration,

execution suspended, followed by four years of proba-
tion on the same special conditions and a $3000 fine.

This appeal followed.

We begin with our standard of review. ‘‘It is well

settled that a defendant who asserts an insufficiency

of the evidence claim bears an arduous burden. . . .

[F]or the purposes of sufficiency review . . . we

review the sufficiency of the evidence as the case was

tried . . . . [A] claim of insufficiency of the evidence

must be tested by reviewing no less than, and no more

than, the evidence introduced at trial. . . . In

reviewing a sufficiency of the evidence claim, we apply

a two part test. First, we construe the evidence in the

light most favorable to sustaining the verdict. Second,

we determine whether upon the facts so construed and

the inferences reasonably drawn therefrom the [fact

finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a

reasonable doubt . . . . This court cannot substitute

its own judgment for that of the [fact finder] if there

is sufficient evidence to support the [fact finder’s] verdict. . . .

‘‘[T]he [fact finder] must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the [fact finder] to

conclude that a basic fact or an inferred fact is true,

the [fact finder] is permitted to consider the fact proven

and may consider it in combination with other proven

facts in determining whether the cumulative effect of

all the evidence proves the defendant guilty of all the

elements of the crime charged beyond a reasonable

doubt. . . . Moreover, it does not diminish the probative force of the evidence that it consists, in whole or

in part, of evidence that is circumstantial rather than

direct. . . . It is not one fact . . . but the cumulative

impact of a multitude of facts which establishes guilt

in a case involving substantial circumstantial evidence.

. . . In evaluating evidence, the [fact finder] is not

required to accept as dispositive those inferences that

are consistent with the defendant’s innocence. . . .

The [fact finder] may draw whatever inferences from

the evidence or facts established by the evidence [that]

it deems to be reasonable and logical. . . .

‘‘[O]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether

there is a reasonable view of the evidence that supports

the [fact finder’s] verdict of guilty. . . . [T]he trier of

fact may credit part of a witness’ testimony and reject

other parts. . . . [W]e must defer to the [fact finder’s]

assessment of the credibility of the witnesses based on

its firsthand observation of their conduct, demeanor

and attitude . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Raynor, 175 Conn. App.

409, 424–26, 167 A.3d 1076, cert. granted, 327 Conn.

969, 173 A.3d 952 (2017).

I

The defendant first claims that the evidence was

insufficient to support his conviction for breach of the

peace in the second degree because the words he

uttered to McCargo were protected speech under the

first amendment to the United States constitution4 and

thus did not violate § 53a-181 (a) (5).

‘‘Ordinarily, a jury or trial court’s findings of fact are

not to be overturned on appeal unless they are clearly

erroneous. . . . Thus, we [generally] review the findings of fact . . . for clear error.

‘‘In certain first amendment contexts, however,

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 appellate 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 raising [f]irst [a]mendment issues [the

United States Supreme Court has] repeatedly held that

an appellate court has an obligation to make an independent examination of the whole record in order to make

sure that the judgment does not constitute a forbidden

intrusion [into] the field of free expression. . . . This

rule of independent review was forged in recognition

that a [reviewing] [c]ourt’s duty is not limited to the

elaboration 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.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Krijger, 313 Conn. 434, 446–47, 97 A.3d 946 (2014). The

court in Krijger also noted, however, that although an

appellate court ‘‘review[s] de novo the trier of fact’s

ultimate determination that the statements at issue constituted a [breach of the peace], [the court] accept[s]

all subsidiary credibility determinations and findings

that are not clearly erroneous.’’ Id., 447.

The defendant argues that the trial court’s findings

that he directed the phrase ‘‘fucking niggers’’ at

McCargo ‘‘in context and in light of his belligerent tone,

his aggressive stance, [and] the fact that he was walking

toward Mr. McCargo and moving his hands in an aggressive manner’’ have no support in the evidence and,

in fact, are contradicted by the evidence. Pursuant to
Krijger, we must examine the statements at issue to

determine whether they are of such a character as to

be protected under the first amendment. See State v.

Krijger, supra, 313 Conn. 446. Upon conducting such

an examination, we agree with the defendant that the

court’s findings are clearly erroneous.

‘‘The starting point for our analysis is an examination

of the statements at issue.’’ Id., 452. The defendant does

not contest the finding that he twice used the words

‘‘fucking niggers,’’ or the finding that he directed those

words at McCargo. Frangione, however, who was the

only person to testify that the defendant ever walked

toward McCargo while speaking to him, did not testify

that she ever heard the defendant say the words ‘‘fucking niggers.’’ McCargo, who did testify to hearing the

defendant say those words, testified that the defendant

‘‘[stood] his ground’’ during the incident, staying at a

‘‘respectable’’ distance from him throughout. According

to McCargo, the defendant was inside his car on both

occasions when he said the words ‘‘fucking niggers.’’

The trial court’s finding that the defendant twice

directed the phrase ‘‘fucking niggers’’ at McCargo, in a

belligerent tone, with an aggressive stance and while

walking toward him, is therefore clearly erroneous.

We continue our analysis to determine whether the

defendant’s speech, as supported by the evidence

adduced at trial, could lawfully constitute a breach of

the peace under the fighting words exception to the first

amendment. Our Supreme Court recently discussed the

type of speech that constitutes ‘‘fighting words,’’ and

thus is not protected by the first amendment, in State

v. Baccala, 326 Conn. 232, 163 A.3d 1, cert. denied,

U.S. , 138 S. Ct. 510, 199 L. Ed. 2d 408 (2017). In

Baccala, the defendant was convicted of breach of the

peace in the second degree after a customer service

dispute in a supermarket. Id., 233–34. The defendant

customer called the supermarket to request that the

store keep the customer service desk open until she

arrived so that she could pick up a Western Union

money transfer. Id., 235. The manager who answered

her telephone call informed her that the desk was

already closed and the services she sought were currently unavailable. Id. ‘‘The defendant became belligerent, responded that she ‘really didn’t give a shit,’ and

called [the manager] ‘[p]retty much every swear word

you can think of’ before the call was terminated.’’ Id.

A few minutes after the telephone call, the defendant

arrived at the store, went inside, and proceeded directly

to the closed customer service desk, where she

attempted to fill out a money transfer form. Id. After

the manager with whom she had spoken on the telephone told her once again that the customer service

desk was closed for the day, the defendant ‘‘proceeded

to loudly call [the manager] a ‘fat ugly bitch’ and a ‘cunt’

and said ‘fuck you, you’re not a manager,’ all while

gesticulating with her cane.’’ (Footnote omitted.) Id.,
236. The manager remained calm during this outburst

and responded to the defendant by telling her to have

a good night, at which point the defendant left the

store. Id. On appeal, our Supreme Court held that the

foregoing evidence was insufficient to support the

defendant’s breach of peace conviction under settled

first amendment principles; id., 237; ‘‘[b]ecause the

words spoken by the defendant were not likely to provoke a violent response under the circumstances in

which they were uttered.’’ Id., 234.

‘‘[A] proper contextual analysis,’’ the court in Baccala

wrote, ‘‘requires consideration of the actual circumstances, as perceived by both a reasonable speaker and

addressee, to determine whether there was a likelihood

of violent retaliation. This necessarily includes the manner in which the words were uttered, by whom and to

whom the words were uttered, and any other attendant

circumstances that were objectively apparent and bear

on the question of whether a violent response was

likely.’’5

Id., 250.

‘‘[I]t is precisely this consideration of the specific

context in which the words were uttered and the likelihood of actual violence, not an undifferentiated fear

or apprehension of disturbance, that is required by the

United States Supreme Court’s decisions following

Chaplinsky [v. New Hampshire, 315 U.S. 568, 62 S. Ct.

766, 86 L. Ed. 1031 (1942)]. . . . Because the fighting

words exception is concerned only with preventing the

likelihood of actual violence, an approach ignoring the

circumstances of the addressee is antithetical and simply unworkable.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 248. ‘‘[T]he

fighting words exception is not concerned with creating

symmetrical free speech rights by way of establishing

a uniform set of words that are constitutionally proscribed. . . . Rather, because the fighting words

exception is intended only to prevent the likelihood

of an actual violent response, it is an unfortunate but

necessary consequence that we are required to differentiate between addressees who are more or less likely

to respond violently and speakers who are more or less

likely to elicit such a response.’’ (Citation omitted.)

Id., 249.

The court applied a two part test ‘‘[i]n considering

the defendant’s challenge to the sufficiency of the evidence to support her conviction of breach of the peace

in the second degree in accordance with her first

amendment rights . . . . First, as reflected in the previous recitation of facts, we construe the evidence in

the light most favorable to sustaining the verdict. . . .

Second, we determine whether the trier of fact could

have concluded from those facts and reasonable inferences drawn therefrom that the cumulative force of the

evidence established guilt beyond a reasonable doubt.

. . . Accordingly, to establish the defendant’s violation
of § 53a-181 (a) (5) . . . in light of its constitutional

gloss, the state was required to prove beyond a reasonable doubt that the defendant’s words were likely to

provoke an imminent violent response from an average

store manager in [that woman’s] position.’’ (Citations

omitted.) Id., 250–51.

The court continued: ‘‘At the outset of [our] examination, we must acknowledge that the words and phrases

used by the defendant—‘fat ugly bitch,’ ‘cunt,’ and ‘fuck

you, you’re not a manager’—were extremely offensive

and meant to personally demean [the manager]. The

defendant invoked one or more of the most vulgar terms

known in our lexicon to refer to [the manager’s] gender.

Nevertheless, ‘[t]he question in this case is not whether

the defendant’s words were reprehensible, which they

clearly were; or cruel, which they just as assuredly

were; or whether they were calculated to cause psychic

harm, which they unquestionably were; but whether

they were criminal.’ . . . Uttering a cruel or offensive

word is not a crime unless it would tend to provoke a

reasonable person in the addressee’s position to immediately retaliate with violence under the circumstances.’’ (Citation omitted; emphasis in original.) Id.,

251–52.

In determining that the defendant’s conduct in Baccala did not support a conviction for breach of the

peace because the state did not prove beyond a reasonable doubt that the manager was likely to retaliate with

violence, the court considered several factors. Id., 252.

First, the court discussed the telephone call that preceded the in-person interaction: Because the defendant

had already been belligerent to and directed swear

words at the manager over the telephone, the manager

‘‘reasonably would have been aware of the possibility

that a similar barrage of insults . . . would be directed

at her.’’ Id. Second, the court noted that store managers

are routinely confronted by frustrated customers, who

often express themselves in angry terms, and are

expected in such situations to model appropriate behavior and deescalate the situation. Id., 253. Additionally,

the manager had a significant degree of control over

the premises where the confrontation took place and

could have resorted to lawful self-help tools if the defendant became abusive, rather than responding with violence herself. Id. The court concluded that ‘‘[g]iven the

totality of the circumstances in the present case . . .

it would be unlikely for an on duty store manager in

[her] position to respond in kind to the defendant’s

angry diatribe with similar expletives.’’ Id. Finally, the

court noted that the manager did not respond with

profanity or violence, observing that ‘‘[a]lthough the

reaction of the addressee is not dispositive . . . it is

probative of the likelihood of a violent reaction.’’ (Citation omitted.) Id., 254.

In this case, as in Baccala, the defendant used
extremely vulgar and offensive language, meant to personally demean McCargo.6 Under the circumstances in

which he uttered this language, however, it was not

likely to tend to provoke a reasonable person in

McCargo’s position immediately to retaliate with violence. Although the evidence unequivocally supports a

finding that the defendant at one point walked toward

McCargo while yelling and moving his hands, there is

no evidence that the defendant simultaneously used the

racial slurs. The evidence unequivocally shows, instead,

that the defendant was in his car both times that he

directed the racial slurs toward McCargo.7 McCargo did

testify that the defendant’s use of the slurs shocked

and appalled him, and that he found the remarks offensive. He also testified, however, that he remained calm

throughout the encounter and felt no need to raise his

voice to the defendant. A reasonable person acting in

the capacity of a parking official would be aware that

some level of frustration might be expressed by some

members of the public who are unhappy with receiving

tickets and would therefore not be likely to retaliate

with immediate violence during such an interaction.

In reviewing the entire context of the interaction, we

therefore find that because McCargo was unlikely to

retaliate with immediate violence to the conduct for

which the defendant was charged, the defendant’s

words were not ‘‘fighting words,’’ upon which he might

appropriately be convicted of breach of the peace. The

defendant’s conviction of breach of the peace in the

second degree must therefore be reversed.

II

The defendant next claims that the evidence was

insufficient to prove him guilty of tampering with a

witness in violation of § 53a-151. That statute provides:

‘‘A person is guilty of tampering with a witness if,

believing that an official proceeding is pending or about

to be instituted, he induces or attempts to induce a

witness to testify falsely, withhold testimony, elude

legal process summoning him to testify or absent himself from any official proceeding.’’ General Statutes

§ 53a-151. ‘‘[T]he witness tampering statute has two

requirements: (1) the defendant believes that an official

proceeding is pending or about to be instituted; and (2)

the defendant induces or attempts to induce a witness to

engage in the proscribed conduct.’’ (Internal quotation

marks omitted.) State v. O’Donnell, 174 Conn. App. 675,

690, 166 A.3d 646, cert. denied, 327 Conn. 956, 172 A.3d

205 (2017).

The defendant, however, has construed the state’s

charge as one of tampering with a witness by way of

threatening conduct. He argues that his e-mail to

McCargo’s supervisor did not constitute a ‘‘true threat,’’

and thus is entitled to first amendment protection, citing

State v. Sabato, 321 Conn. 729, 742, 138 A.3d 895 (2016),

for the proposition that ‘‘a defendant whose alleged
threats form the basis of a prosecution under any provision of our Penal Code . . . could be convicted as

charged only if his statements . . . constituted a true

threat, that is, a threat that would be viewed by a reasonable person as one that would be understood by the

person against whom it was directed as a serious

expression of an intent to harm or assault, and not

as mere puffery, bluster, jest or hyperbole.’’ (Internal

quotation marks omitted.) Because the state did not

claim that the defendant tampered with a witness by

threatening him, his argument that his words did not

constitute a ‘‘true threat’’ is unavailing.

‘‘The language of § 53a-151 plainly warns potential

perpetrators that the statute applies to any conduct that

is intended to prompt a witness . . . to refrain from

testifying in an official proceeding that the perpetrator

believes to be pending or imminent. The legislature’s

unqualified use of the word ‘induce’ clearly informs

persons of ordinary intelligence that any conduct,

whether it be physical or verbal, can potentially give

rise to criminal liability. Although the statute does

not expressly mandate that the perpetrator intend to

cause the witness to . . . withhold his testimony, the

implicit requirement is apparent when the statute is

read as a whole. . . . The legislature’s choice of the

verb ‘induce’ connotes a volitional component of the

crime of tampering that would have been absent had

it employed a more neutral verb such as ‘cause.’ Furthermore, the statute’s application to unsuccessful, as

well as successful, attempts to induce a witness to render false testimony [or refrain from testifying] supports

our conclusion that the statute focuses on the mental

state of the perpetrator to distinguish culpable conduct

from innocent conduct.’’ (Citations omitted; emphasis

added.) State v. Cavallo, 200 Conn. 664, 668–69, 513

A.2d 646 (1986). ‘‘Although Cavallo discusses § 53a-151

in the context of inducing someone to testify falsely or

to refrain from testifying, we conclude that its holding

that the language of § 53a-151 plainly warns potential

perpetrators applies equally to situations in which a

defendant attempts to induce someone to absent himself or herself from a proceeding.’’ State v. BennettGibson, 84 Conn. App. 48, 57–58 n.9, 851 A.2d 1214,

cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). ‘‘[A]

defendant is guilty of tampering with a witness only if

he intends that his conduct directly cause a particular

witness to testify falsely or to refrain from testifying at

all.’’ State v. Cavallo, supra, 672.

In State v. Bennett-Gibson, this court stated that ‘‘[t]o

prove inducement or an attempt thereof, the evidence

before the jury must be sufficient to conclude that the

defendant’s conduct was intended to prompt [the complainant] to absent herself from the proceeding. . . .

Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also

be inferred from the surrounding circumstances. . . .
The use of inferences based on circumstantial evidence

is necessary because direct evidence of the accused’s

state of mind is rarely available. . . . Furthermore, it

is a permissible, albeit not a necessary or mandatory,

inference that a defendant intended the natural consequences of his voluntary conduct.’’ (Citation omitted;

emphasis omitted; footnote omitted; internal quotation

marks omitted.) State v. Bennett-Gibson, supra, 84

Conn. App. 53.

A defendant need not contact a witness directly to

be convicted under § 53a-151. In State v. Carolina, 143

Conn. App. 438, 69 A.3d 341, cert. denied, 310 Conn.

904, 75 A.3d 31 (2013), this court upheld the conviction

of a defendant who had written a letter to his cousin

in which he asked his cousin to pass along scripted

false testimony to a potential witness against him. Id.,

440–42. The letter was intercepted by a correction officer and did not reach the cousin; therefore, the witness

did not become aware of the defendant’s scripted testimony. Id., 444. The defendant claimed that ‘‘[t]he letter

was an attempt to induce [his] cousin to induce [the

witness] to testify falsely,’’ but since the letter never

reached the witness, the witness ‘‘was never aware of

the defendant’s attempts to induce her to testify falsely.’’

(Internal quotation marks omitted.) Id., 442. This court

upheld the defendant’s conviction under § 53a-151, noting that ‘‘[t]he purpose of the statute would be thwarted

if a defendant could avoid liability by inducing false

testimony indirectly through an intermediary instead

of communicating directly with the witness himself.’’

Id., 445.

In this case, the trial court had ample evidence that

the defendant intended to induce McCargo to absent

himself from the court proceeding. The state presented

evidence that the defendant sent an e-mail to McCargo’s

supervisor implying that he would press felony charges

against McCargo and cause McCargo to lose his job if

he appeared in court to testify, but that he would let

the matter drop if McCargo did not appear in court to

testify. The defendant’s claim that his e-mail did not

constitute a ‘‘true threat’’ against McCargo is unavailing.

The state was not required to prove, nor was the trial

court required to find, that the defendant threatened

McCargo in order to establish that he sought to induce

him not to testify. The language of the defendant’s e-mail

clearly indicates that the defendant intended to induce

McCargo not to appear in court, insofar as it stated: ‘‘It

goes without mention that if your meter maid does not

show up in court this case will be over and everyone

can go peacefully on their own way, no harm, no foul,

no fallout’’ and ‘‘[p]erhaps the judge will remand him

to custody right then and there from his witness chair?

Obviously not if he is not there.’’ That is all that is

required for a conviction on this charge. We therefore

affirm the defendant’s conviction of tampering with

a witness.
The judgment is reversed only as to the defendant’s

conviction of breach of the peace in the second degree

and the case is remanded with direction to render a

judgment of acquittal on that charge and to resentence

the defendant on the charge of tampering with a witness; the judgment is affirmed in all other respects.

In this opinion, DiPENTIMA, C. J., concurred.

1 The court took judicial notice that there was a scheduled court date

related to the breach of peace charge on March 12, 2015.

2 The spelling and capitalization in the e-mail as quoted are per the original.

3 On appeal, the defendant did not pursue his claim that his e-mail was

protected speech as a matter of public concern.

4 The defendant also claims his conduct was protected by article first,

§§ 3, 4 and 14, of the Connecticut constitution. Because this claim is not

independently briefed, we do not reach the defendant’s claim pursuant to

the Connecticut constitution. See, e.g., State v. Outlaw, 216 Conn. 492, 501

n.6, 582 A.2d 751 (1990).

5 Our Supreme Court also noted that ‘‘[a] proper examination of the context

also considers those personal attributes of the speaker and the addressee

that are reasonably apparent because they are necessarily a part of the

objective situation in which the speech was made. . . . Courts have, for

example, considered the age, gender, race, and status of the speaker.’’ (Citations omitted.) Id., 241–42.

6 Our dissenting colleague notes, as did the trial court, that the word

‘‘nigger’’ is vile and offensive, and that its use perpetuates historically discriminatory attitudes about race that regrettably persist in modern society.

We agree entirely with those observations. We reiterate, however, that,

under our law, it is the context in which such slurs are uttered that determines whether or not their utterance is so likely to provoke a violent

response as to constitute fighting words, for which criminal sanctions may

constitutionally be imposed.

7 The dissent also points to two cases cited in Baccala, in which it contends

that the word ‘‘nigger’’ was held to constitute a constitutionally unprotected

fighting word. The Baccala court cited the two cases, In re Spivey, 345 N.C.

404, 480 S.E.2d 693 (1997), and In re John M., 201 Ariz. 424, 36 P.3d 772

(App. 2001), for the related propositions that a proper contextual evaluation

of speech as alleged fighting words involves consideration of: the personal

characteristics of the speaker and the person to whom his words are

addressed, such as their ages, genders, races and respective statuses; State

v. Baccala, supra, 326 Conn. 241–43; and the likelihood that the average

listener with those personal characteristics would respond with violence to

such speech if it were addressed to him in the circumstances of the case

before the court. Id., 243. We respectfully submit that in those two cases,

it was the particular circumstances in which the word ‘‘nigger’’ was uttered

that made its use unprotected by the first amendment, and that nothing in

those cases suggests that that word is always an unprotected fighting word.