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*********************************************** 
STATE OF CONNECTICUT v. CODY M.*

(SC 20213)

Robinson, C. J., and Palmer, McDonald,

D’Auria, Mullins and Ecker, Js.**

Syllabus

Convicted, after a jury trial, of two counts of violating a standing criminal

protective order and two counts of threatening in the second degree,

the defendant appealed to the Appellate Court, claiming, inter alia, that

his conviction of two counts of violating a protective order violated the

constitutional prohibition against double jeopardy and that the trial

court improperly instructed the jury as to the one of the counts of

violating a protective order by incorrectly defining the term ‘‘harassing.’’

The defendant’s conviction stemmed from his actions toward the victim

when they appeared before a juvenile court for a hearing relating to

their children. At the time, the defendant was subject to a standing

criminal protective order that, with limited exceptions, prohibited him

from contacting the victim in any manner and from threatening or harassing her. As the hearing began, the defendant attempted to engage in

small talk with the victim, telling her that he still loved her and asking

her why she had blocked his phone calls, but she ignored him. The

defendant’s tone then changed, he whispered to the victim that she was

going to have problems, and, when she looked at him, he mouthed that

he was going to kill her. The Appellate Court affirmed the judgment of

conviction, concluding, inter alia, that the defendant’s double jeopardy

claim failed because his conviction of each count of violating a protective

order was supported by a separate and distinct act even though those

acts arose from the same conversation. The Appellate Court also concluded that the trial court did not improperly instruct the jury as to the

definition of the term ‘‘harassing.’’ On the granting of certification, the

defendant appealed to this court. Held:

1. The Appellate Court correctly concluded that the defendant’s conviction

of two counts of violating a standing criminal protective order did not

violate the constitutional prohibition against double jeopardy: because

the purpose of the statute (§ 53a-223a) under which the defendant was

convicted is to protect victims of domestic violence by increasing the

penalty for violating protective orders, the legislature intended to punish

separately each discrete act that violates a protective order, rather than

to punish only the course of action that those acts constitute, and,

therefore, conviction of multiple counts is permitted for distinct acts

that constitute separate violations of § 53a-223a; in the present case,

the defendant’s statements, although made in quick succession, constituted two distinct acts in violation of two different conditions of the

protective order and, thus, were separately punishable, as the defendant’s act of whispering to the victim that he loved her and asking her

why she had blocked his phone calls violated the protective order’s no

contact provision, and the defendant’s escalation of his behavior by

asserting that she was going to have problems and mouthing that he

would kill her was in violation of the order’s provision prohibiting him

from threatening the victim.

2. The defendant could not prevail on his claim that the Appellate Court

improperly upheld the trial court’s jury instruction as to the second

count of violating a standing criminal protective order because, even if

the trial court incorrectly defined the term ‘‘harassing,’’ any error was

harmless beyond a reasonable doubt; the state having alleged in that

second count that the defendant had violated the protective order by

either threatening or harassing the victim, and the jury having found

the defendant guilty of threatening in the second degree on the basis

of the same underlying conduct as that on which the second count was

based, the jury necessarily found the defendant guilty of threatening

the victim as charged in the second count.

Argued November 14, 2019—officially released September 21, 2020***

Procedural History
Substitute information charging the defendant with

two counts each of the crimes of criminal violation of

a standing criminal protective order and threatening in

the second degree, brought to the Superior Court in

the judicial district of New Haven and tried to the jury

before O’Keefe, J.; verdict and judgment of guilty, from

which the defendant appealed to the Appellate Court,

Sheldon, Elgo and Flynn, Js., which affirmed the trial

court’s judgment, and the defendant, on the granting

of certification, appealed to this court. Affirmed.

John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Patrick J. Griffin,

state’s attorney, Laura DeLeo, senior assistant state’s

attorney, and Bruce R. Lockwood, supervisory assistant

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

ROBINSON, C. J. The principal issue in this certified

appeal is whether multiple convictions for violation of

a standing criminal protective order, arising from a

series of statements made during a court hearing by

the defendant, Cody M., to the person protected by the

order, violate the constitutional protection from double

jeopardy. The Appellate Court affirmed the judgment,

rendered after a jury trial, convicting the defendant of

two counts of criminal violation of a standing criminal

protective order in violation of General Statutes § 53a223a,1 one count of threatening in the second degree

in violation of General Statutes (Rev. to 2015) § 53a-62

(a) (2),2 and one count of threatening in the second

degree in violation of § 53a-62 (a) (3). State v. Meadows,

185 Conn. App. 287, 290, 197 A.3d 464 (2018). We granted

the defendant’s petition for certification to appeal,3 and

the defendant now claims that the Appellate Court

incorrectly concluded that (1) his conviction of two

counts of violating a standing criminal protective order

did not violate his constitutional right against double

jeopardy, and (2) the trial court’s jury instruction correctly defined the term ‘‘harassing’’ with respect to the

penalty enhancement under § 53a-223a (c) (2). We conclude that the defendant’s conviction of two counts of

violating a standing criminal protective order did not

violate his right against double jeopardy and that any

possible instructional error in the trial court’s definition

of ‘‘harassing’’ was harmless, and, accordingly, we affirm

the judgment of the Appellate Court.

The record reveals the following facts, which the jury

reasonably could have found, and procedural history.

On May 12, 2015, the trial court, Keegan, J., issued a

standing criminal protective order against the defendant, ordering that he, inter alia, ‘‘not assault, threaten,

abuse, harass, follow, interfere with . . . stalk’’ or

‘‘contact . . . in any manner, including by written,

electronic or telephone contact,’’ the victim, who is

the mother of his children. One exception to the order

permitted contact with the victim ‘‘for purposes of visitation, as directed by [the] family court.’’ Subsequently,

on September 1, 2015, both the victim and the defendant

were present at a juvenile court hearing. The defendant,

who was incarcerated at the time, was brought to the

hearing and placed near the victim.

When the hearing began, the defendant tried to

engage in ‘‘small talk’’ with the victim, but she ignored

him and did not make eye contact. The victim testified

that the defendant had ‘‘whispered to me that he still

loved me and had asked me why I had a block on the

phone and that I said I would never do this to him

. . . . [W]hen I wasn’t responding to him, his tone

changed and he told me that ‘you’re going to have problems when I get home, bitch,’ and . . . I looked at him,

and he told me that he was going to fucking kill me.’’
The conversation was only as loud as a whisper, except

for the last statement, which the defendant mouthed

to the victim. The victim then told the defendant to

stop threatening her, and he responded that he was not.

The victim thought the statements were threats, and

she was afraid. At some point, an assistant attorney

general present for the hearing informed the court that

the defendant was speaking to the victim.

After the hearing ended, a judicial marshal removed

the defendant from the courtroom. Once the defendant

was outside of the courtroom, he continued to make

remarks about the victim, saying, ‘‘I’m gonna get that

bitch when I get out. . . . I’m gonna kill that fucking

bitch, I’m gonna fuck that bitch up, I’m gonna fucking

kill her.’’ Subsequently, the defendant reiterated these

statements while meeting with a social worker, also

stating that, ‘‘if he’s not with [the victim], he’s going to

make sure nobody else is with her,’’ and that, ‘‘if she

chooses not to be with him, he will beat the f’ing shit

out of her.’’ He also said ‘‘he would make her another

Tracey Morton.’’4

In the operative information,5the state charged the

defendant with two counts of violation of a standing

criminal protective order and two counts of threatening

in the second degree.6 The case was tried to a jury,

which found the defendant guilty on all four counts,

and the trial court rendered a judgment of conviction

in accordance with the jury’s verdict.7

The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of conviction. State v. Meadows, supra, 185 Conn.

App. 308. With respect to the issues relevant to this

certified appeal, the Appellate Court first rejected the

defendant’s claim that his two convictions for violating

a standing criminal protective order were a double jeopardy violation, concluding that each conviction was supported by a ‘‘separate and distinct [act], and it matters

not that they arose from the same conversation.’’8

Id.,

298. The Appellate Court also disagreed with the defendant’s claim that the trial court improperly defined the

term ‘‘harassing conduct’’ when instructing the jury as

to the second count of violating a standing criminal

protective order, holding that the definition used was

consistent with the decision in State v. Larsen, 117

Conn. App. 202, 209 n.5, 978 A.2d 544, cert. denied, 294

Conn. 919, 984 A.2d 68 (2009). See State v. Meadows,

supra, 299–301. This certified appeal followed. See footnote 3 of this opinion. Additional facts and procedural

history will be set forth in the context of each claim

on appeal.

I

We begin with the defendant’s claim that his two

convictions under § 53a-223a for violations of a standing

criminal protective order violated the constitutional
prohibition against double jeopardy. The Appellate

Court’s analysis of this issue centered on the premise

that the defendant violated ‘‘two separate provisions’’

of the order; one count originated from his initial contact, and the second count was based on the defendant’s

threat to the victim. See State v. Meadows, supra, 185

Conn. App. 298. The Appellate Court considered each

violation ‘‘distinct’’ and deemed its decision in State v.

Nixon, 92 Conn. App. 586, 886 A.2d 475 (2005), which

had held a series of knife stabs to be a single, continuous

act, inapposite. See State v. Meadows, supra, 297–99.

‘‘A defendant’s double jeopardy claim presents a

question of law, over which our review is plenary. . . .

The double jeopardy clause of the fifth amendment to

the United States constitution provides: [N]or shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb. The double jeopardy clause

[applies] to the states through the due process clause

of the fourteenth amendment. . . . This constitutional

guarantee prohibits not only multiple trials for the same

offense, but also multiple punishments for the same

offense in a single trial. . . . Although the Connecticut

constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of

our state constitution encompasses protection against

double jeopardy.’’ (Citation omitted; internal quotation

marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52

A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct.

1804, 185 L. Ed. 2d 811 (2013).

‘‘In accordance with Blockburger v. United States,

284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), double

jeopardy claims challenging the constitutional validity

of convictions pursuant to two distinct statutory provisions are traditionally analyzed by inquiring whether

each provision requires proof of a fact of which the

other does not require proof. . . . We prefer a different

form of analysis in the circumstances of this case, in

which only one statutory provision is at issue.9 The

proper double jeopardy inquiry when a defendant is

convicted of multiple violations of the same statutory

provision is whether the legislature intended to punish

the individual acts separately or to punish only the

course of action which they constitute.’’ (Citations omitted; emphasis in original; footnote added; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296,

304, 699 A.2d 921 (1997). Put differently, we must determine the ‘‘unit of prosecution’’ intended by the legislature in enacting § 53a-223a. See Bell v. United States,

349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955)

(employing unit of prosecution analysis to determine

whether Congress intended ‘‘cumulative punishment

for each woman’’ transported in violation of Mann Act);

State v. Garvin, supra, 306–307 (legislature intended

unit of prosecution to be number of bail bonds breached

rather than number of times defendant failed to appear);

State v. Tweedy, 219 Conn. 489, 498–99, 594 A.2d. 906
(1991) (legislature intended ‘‘the course of committing

a larceny . . . as the time frame for completion of the

offense of robbery’’ (internal quotation marks omitted)).

‘‘The issue, [although] essentially constitutional,

becomes one of statutory construction.’’ State v. Rawls,

198 Conn. 111, 120, 502 A.2d 374 (1985). ‘‘When construing a statute, [o]ur fundamental objective is to ascertain

and give effect to the apparent intent of the legislature.

. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language

as applied to the facts of [the] case, including the question of whether the language actually does apply. . . .

In seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and

does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and [common-law] principles governing the same general subject matter . . . .’’10 (Internal quotation marks

omitted.) State v. Terwilliger, 314 Conn. 618, 653–54,

104 A.3d 638 (2014).

A

We begin our analysis by determining the requisite

unit of prosecution under § 53a-223a. The defendant

asserts that the Appellate Court incorrectly concluded

that the statutory language of § 53a-223a, specifically,

the word ‘‘involves’’ in subsection (c), clearly indicates

that the legislature intended the unit of prosecution to

be on a ‘‘transactional basis.’’ The defendant contends

that a violation of a protective order is a continuing

offense and that, because the conversation at issue in

this case lasted only for a short time, it should be viewed

as a single violation. Finally, the defendant requests

that we apply the rule of lenity to resolve any statutory

ambiguity on this point.

In response, the state argues that the text and purpose

of § 53a-223a support viewing separate violations as

distinct criminal acts, and, as a result, each distinct

contact or threat to the victim may be punished. The

state argues that a violation of a protective order is

more analogous to sexual assault, which is a separate

act crime, than kidnapping, which is a continuous act

crime. The state contended at oral argument before this

court that § 53a-223a is unambiguous and argues in its

brief that the statute clearly permits multiple convictions for separate acts because, inter alia, the statutory

text does not expressly state that a violation is a contin-
uing act. The state supports this argument by contrasting § 53a-223a with a related statute, General Statutes § 53a-222, which governs violations of conditions

of release and includes language specifically indicating

that a violation is a continuing offense. See General

Statutes § 53a-222 (a) (‘‘intentionally violates one or

more of the imposed conditions of release’’). We agree

with the state and conclude that the defendant’s multiple convictions in this case did not violate his double

jeopardy rights.

We begin with the language of § 53a-223a, which provides in relevant part: ‘‘(a) A person is guilty of criminal

violation of a standing criminal protective order when

. . . such person violates such order.

* * *

‘‘(c) Criminal violation of a standing criminal protective order is a class D felony, except that any violation

that involves (1) imposing any restraint upon the person

or liberty of a person in violation of the standing criminal protective order, or (2) threatening, harassing,

assaulting, molesting, sexually assaulting or attacking

a person in violation of the standing criminal protective

order is a class C felony.’’

The plain language of the statute does not define

when a violation begins and ends; instead, it states only

that one is guilty if ‘‘such person violates such order.’’

General Statutes § 53a-223a (a). The statute can reasonably be read to prohibit either a course of conduct

or discrete acts, each of which may be sufficient to

constitute a violation. As a result, we must look outside

the statutory text for indicators of legislative intent.

When § 53a-223a is construed in light of similar, surrounding statutes, it is apparent the legislature purposefully omitted language that was included in those provisions. We are cognizant of ‘‘the principle that the

legislature is always presumed to have created a harmonious and consistent body of law . . . . [T]his tenet of

statutory construction . . . requires us to read statutes

together when they relate to the same subject matter

. . . . Accordingly, [i]n determining the meaning of a

statute . . . we look not only at the provision at issue,

but also to the broader statutory scheme to ensure the

coherency of our construction. . . . Where a statute,

with reference to one subject contains a given provision, the omission of such provision from a similar

statute concerning a related subject . . . is significant

to show that a different intention existed. . . . That

tenet of statutory construction is well grounded

because [t]he General Assembly is always presumed to

know all the existing statutes and the effect that its

action or [nonaction] will have upon any one of them.’’

(Internal quotation marks omitted.) State v. Fernando

A., 294 Conn. 1, 21, 981 A.2d 427 (2009). In contrast,

§ 53a-222 follows a similar structure to § 53a-223a but

provides in relevant part: ‘‘(a) A person is guilty of
violation of conditions of release in the first degree

when, while charged with the commission of a felony,

such person is released . . . and intentionally violates

one or more of the imposed conditions of release. . . .’’

(Emphasis added.) This ‘‘one or more’’ language in

§ 53a-222 (a) demonstrates that, regardless of whether

a defendant violates the conditions of release once or

more than once, he nevertheless is guilty of only one

count. The absence of such language in § 53a-223a indicates that the legislature did not have a similar intent

with respect to a standing criminal protective order

and, as a result, supports a reading permitting violations

of multiple provisions of an order to support multiple

convictions under the statute.

We disagree with the defendant’s construction of

§ 53a-223a, which does not resolve the ambiguity in the

statute. Specifically, the defendant relies on subsection

(c) of the statute and contends that the legislature’s

use of ‘‘the open-ended term ‘involve’ thereby impl[ies]

that the occurrence or transaction constituting the violation of the protective order can be broader than the

acts in the proscribed list.’’ We disagree. The word

‘‘involves’’ in subsection (c) is irrelevant to determining

the unit of prosecution because it does not, in the first

instance, define whether a violation, as provided in

subsection (a), is a discrete act or a continuing course

of conduct. Simply because a violation involves threatening does not, under the statutory text, preclude punishment for additional violations because subsection

(c) functions only as a sentence enhancement for certain types of violations that are made punishable under

subsection (a), namely, those implicating harassing or

threatening conduct. In the absence of explication of

what it means to ‘‘[violate] such order’’ in subsection

(a) itself, the word ‘‘involves’’ in subsection (c) provides

no meaningful guidance.

Additionally, under the defendant’s interpretation,

persons who violate an order repeatedly would be

shielded from prosecution because any violation would

be continuous. See State v. Snook, 210 Conn. 244, 262,

555 A.2d 390 (‘‘If we adopted the defendant’s reasoning,

the commission of one act likely to impair the health

and morals of a minor would insulate the perpetrator

from further criminal liability for any additional acts of

the same character perpetrated on the same minor in

subsequent encounters. Such a result defies rationality.’’), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L.

Ed. 2d 603 (1989); In re Walker v. Walker, 86 N.Y.2d

624, 628, 658 N.E.2d 1025, 635 N.Y.S.2d 152 (1995)

(‘‘Under [the] appellant’s argument, a violator already

penalized for [wilfully] failing to obey an order of protection would garner immunity from further official

sanction for persistent, separate violations . . . . Such

an approach is in no way compelled or warranted by the

governing statutes, sentencing principles or reasonable

statutory analysis. Its incongruous and untenable result
would also constitute an invitation to violate and no

incentive to obey.’’ (Citation omitted.)).

The result portended by the defendant’s interpretation of § 53a-223a, which suggests that violations of that

statute are continuous in nature, is inconsistent with the

purpose of the statute, as demonstrated by its legislative

history. The legislature enacted § 53a-223a as No. 96-

228 of the 1996 Public Acts, entitled ‘‘An Act Concerning

Domestic Violence.’’ In this act, the legislature created

the standing criminal restraining order11 in response

to the well-known tragedy involving Tracey Thurman

Motuzick, who had been abused by her ex-husband

after his release from jail in 1996. See 39 H.R. Proc.,

Pt. 10, 1996 Sess., p. 3326, remarks of Representative

Ellen Scalettar. In response to this notorious case, the

legislature created a new type of restraining order that

judges could issue at a defendant’s sentencing in a family violence case. Id. The bill’s leading proponent, Representative Scalettar, stated that the bill ‘‘imposes a significant penalty on those who violate the order. It would

be a [c]lass D [f]elony. . . . [T]his bill will give to victims of domestic violence . . . increased protection

and increased peace of mind, which they well

deserve.’’12 Id., p. 3327. Under the defendant’s proposed

interpretation, a defendant may contact a victim and

later assault her, each in violation of an order, but only

be convicted of one count. Such a result would be

inconsistent with the legislature’s desire to protect victims by increasing the penalty for violating protective

orders, suggesting that § 53a-223a should be read to

permit criminal liability for each discrete act in violation

of an order.13 As the unit of prosecution is no longer

ambiguous after considering the surrounding statutory

scheme and legislative history, we decline to apply the

rule of lenity, as urged by the defendant. See, e.g., State

v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004)

(‘‘courts do not apply the rule of lenity unless a reasonable doubt persists about a statute’s intended scope

even after resort to the language and structure, legislative history, and motivating policies of the statute’’

(emphasis in original; internal quotation marks omitted)).

Numerous other jurisdictions consider protective

order violations to be discrete acts. For example, in

Jacobs v. State, 272 So. 3d 838 (Fla. App. 2019), review

denied, Florida Supreme Court, Docket No. SC19-1008

(November 22, 2019), the Florida District Court of

Appeal affirmed the defendant’s conviction of two

counts of violating a stalking injunction after he

approached and threatened the victim. Id., 839–40. The

court held his two violations to be ‘‘distinct criminal

acts,’’ namely, one when he approached the victim and

a second when he contacted her. Id., 841. The fact

that the acts occurred nearly simultaneously was of

no consequence because ‘‘[e]ach act is of a separate

character and type, and each is born of a separate
impulse.’’ Id., 842; see also Triggs v. State, 382 Md. 27,

50, 852 A.2d 114 (2004) (upholding defendant’s conviction on eighteen counts because ‘‘each separate [telephone] call constitutes contact in violation of a protective order’’); Commonwealth v. Housen, 83 Mass. App.

174, 177, 982 N.E.2d 66 (permitting multiple convictions

for violations of protective order for separate contacts

with victim and her children), review denied, 465 Mass.

1105, 989 N.E.2d 898 (2013); State v. Strong, 380 Mont.

471, 478, 356 P.3d 1078 (2015) (upholding trial court’s

denial of defendant’s motion to dismiss three of four

counts of violating order of protection arising from four

telephone calls made over seven hours); State v. McGee,

135 N.M. 73, 78–79, 84 P.3d 690 (2003) (conviction of

several counts of violating order of protection, when

four telephone calls were made within minutes of each

other, did not violate double jeopardy), cert. denied,

135 N.M. 160, 85 P.3d 802 (2004); In re Walker v. Walker,

supra, 86 N.Y.2d 626, 630 (upholding defendant’s convictions for three violations of a protective order when

defendant sent victim three letters); Hill v.Randolph, 24

A.3d 866, 871–73 (Pa. Super. 2011) (permitting multiple

contempt counts for violations of protective order when

defendant entered victim’s home and assaulted victim);

Cable v. Clemmons, 36 S.W.3d 39, 43 (Tenn. 2001)

(upholding three of defendant’s six convictions for

criminal contempt for violating protective order in one

interaction when defendant ‘‘abused [the victim] physically; produced a knife and threatened to kill her; and

then vandalized [the victim’s] personal property’’); State

v. Medina, Docket No. 48053-1-II, 2016 WL 6599649, *4

(Wn. App. November 8, 2016) (decision without published opinion, 196 Wn. App. 1054) (upholding seven

counts for violation of court order for multiple text

messages sent in one day because ‘‘[e]ach time [the

defendant] messaged [the victim], he took the affirmative action of picking up the phone, typing a message

to [the victim], and pressing ‘send’ ’’), review denied,

187 Wn. 2d 1028, 391 P.3d 448 (2017); State v. Brown,

159 Wn. App. 1, 11, 248 P.3d 518 (2010) (‘‘the unit of

prosecution is each single violation of a no-contact

order’’), review denied, 171 Wn. 2d 1015, 249 P.3d

1029 (2011).

B

Having determined that the legislature permitted convictions for multiple distinct acts that constitute separate violations of § 53a-223a, we must next consider

whether the defendant’s statements in this case constituted a single act or multiple acts. According to the

defendant, a violation of a protective order is analogous

to the knife assaults in State v. Nixon, supra, 92 Conn.

App. 589, which were held to be a single, continuous

act. The defendant argues that the temporal closeness

of the statements is determinative when deciding

whether the violations should be considered one act or

two. In response, the state contends that the jury could
have reasonably found two distinct acts because the

defendant violated two distinct conditions of the protective order and each was a completed offense. Additionally, the state argues that the two acts were separated

by an ‘‘intervening event,’’ that is, when the victim

ignored the defendant. We agree with the state and

conclude that each conviction was supported by a separate act.

‘‘[D]istinct repetitions of a prohibited act, however

closely they may follow each other . . . may be punished as separate crimes without offending the double

jeopardy clause. . . . The same transaction, in other

words, may constitute separate and distinct crimes

where it is susceptible of separation into parts, each

of which in itself constitutes a completed offense. . . .

[T]he test is not whether the criminal intent is one

and the same and inspiring the whole transaction, but

whether separate acts have been committed with the

requisite criminal intent and are such as are made punishable by the [statute].’’ (Citations omitted; internal

quotation marks omitted.) State v. Miranda, 260 Conn.

93, 122–23, 794 A.2d 506, cert. denied, 537 U.S. 902, 123

S. Ct. 224, 154 L. Ed. 2d 175 (2002).

‘‘We look to the following factors to determine

whether, on this record, the defendant engaged in distinct courses of conduct and, therefore, separately punishable [acts]: (1) the amount of time separating the

acts; (2) whether the acts occurred at different locations; (3) the defendant’s intent or motivation behind

the acts; and (4) whether any intervening events

occurred between the acts, such that the defendant

had the opportunity to reconsider his actions.’’ State v.

Ruiz-Pacheco, 336 Conn. 219, 241, 244 A.3d 908 (2020).

We conclude that the defendant’s statements constitute two distinct acts because the victim’s resistance,

effectuated by her silence, was an intervening event

causing the defendant to escalate his behavior. The

defendant’s initial statement, in which he explained that

he loved the victim and inquired as to why she had a

block on her phone, constituted a completed offense,

namely, contacting the victim in violation of that provision of the order. In contrast, the second set of statements occurred only after ‘‘[the victim] wasn’t

responding to him’’ and ‘‘his tone [had] changed.’’ The

defendant stated that the victim was ‘‘going to have

problems when [he got] home, bitch.’’ The victim then

‘‘looked at him, and he told [her] that he was going

to fucking kill [her].’’ What separates the defendant’s

statements into two criminal acts is the defendant’s

clear escalation, showing a ‘‘fresh impulse’’ to move

from nonthreatening conversation to threatening conversation.14 State v. Schoonover, 281 Kan. 453, 497, 133

P.3d 48 (2006). Put differently, the statements supporting count one are a nonthreatening contact, but, upon

realizing the victim was not responding, the defendant
effectuated a different purpose and made a threatening

statement to the victim, supporting a second, distinct

count. This renders this case distinguishable from State

v. Nixon, supra, 92 Conn. App. 586, on which the defendant relies. Compare id., 591 (‘‘the defendant twice

stabbed the same victim, at the same place and during

the same time period, with the same instrument, with

the same common intent to inflict physical injury’’),

with State v. Brown, 299 Conn. 640, 653–54, 11 A.3d

663 (2011) (first act of attempted robbery ended after

‘‘the victim slapped the gun away . . . then escaped,’’

and second act began when defendant chased and shot

victim). This escalation, after the victim’s intervening

resistance, separates the statements into discrete acts.

But see Whylie v. United States, 98 A.3d 156, 165 (D.C.

2014) (one week break in calls by defendant does not

necessarily create ‘‘fresh impulse’’).

Although the defendant made his statements at two

points close in time, the criminal acts nevertheless are

distinct. ‘‘It is not dispositive in a double jeopardy analysis that multiple offenses were committed in a short

time span and during a course of conduct that victimized a single person.’’ State v. Urbanowski, 163 Conn.

App. 377, 393, 136 A.3d 236 (2016), aff’d, 327 Conn. 169,

172 A.3d 201 (2017); see also State v. D’Antonio, 274

Conn. 658, 717, 877 A.2d 696 (2005) (conviction of two

counts of interference with officer stemming from acts

toward different officers does not violate double jeopardy, even though acts were ‘‘within minutes of each

other’’); State v. Scott, 270 Conn. 92, 100, 851 A.2d 291

(2004) (conviction of two counts of sexual assault was

permissible, ‘‘irrespective of the brief period of time

separating them’’), cert. denied, 544 U.S. 987, 125 S. Ct.

1861, 161 L. Ed. 2d 746 (2005); State v. Lytell, 206 Conn.

657, 667, 539 A.2d 133 (1988) (defendant’s actions

toward two victims supported conviction of two counts

of robbery, ‘‘irrespective of whether the robbery was

spatially linked with another robbery’’); State v. Marsala, 93 Conn. App. 582, 589, 889 A.2d 943 (each telephone call violates § 53a-183 (a), ‘‘regardless of how

close in time the calls were made’’), cert. denied, 278

Conn. 902, 896 A.2d 105 (2006). Accordingly, we conclude that the defendant’s two convictions for violation

of a standing criminal protective order did not violate

the constitutional protection against double jeopardy.

II

The defendant next claims that the Appellate Court

improperly upheld the trial court’s jury instruction with

respect to the second count of violation of a standing

criminal protective order because it incorrectly defined

‘‘harassing’’ as ‘‘to trouble, worry, or torment’’ for purposes of the penalty enhancement under § 53a-223a (c).

The defendant asserts that (1) harassment involves

‘‘persistence,’’ which is absent from the trial court’s

definition, (2) the legislature did not intend ‘‘harassing’’
to mean ‘‘troubling’’ or ‘‘worrying,’’ (3) the lower standard utilized by the trial court will encompass virtually

any contact in violation of a protective order because

defendants may easily ‘‘trouble’’ or ‘‘worry’’ their victims, and (4) the Appellate Court incorrectly relied on

other cases utilizing these jury instructions. In response,

the state argues the trial court’s definition was proper,

and, in any event, any error was harmless beyond a

reasonable doubt. We agree with the state and conclude

that any error in the trial court’s instruction was harmless.15

Because the defendant did not object to the jury

instructions at trial; State v. Meadows, supra, 185 Conn.

App. 299;16 we review his claim pursuant to State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),

as modified by In re Yasiel R., 317 Conn. 773, 781, 120

A.3d 1188 (2015). ‘‘Golding provides that a defendant

may prevail on an unpreserved claim when (1) the

record is adequate to review the alleged claim of error;

(2) the claim is of constitutional magnitude alleging

the violation of a fundamental right; (3) the alleged

constitutional violation . . . exists and . . . deprived

the defendant of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Sawyer, 335 Conn. 29, 49–50, 225 A.3d 668

(2020).

For purposes of this Golding analysis, we assume

that the trial court’s instructional definition of harassing

was improper, but we nevertheless conclude that,

because the jury found the defendant guilty of threatening as charged in the third count, the jury necessarily

found him guilty of threatening the victim as charged

in connection with the second count, as the charges

were based on the same underlying conduct. As such,

any error as to the definition of ‘‘harassing’’ was harmless.17 Under § 53a-223a (c) (2), a defendant is guilty of

a class C felony for criminal violation of a protective

order for ‘‘threatening, harassing, assaulting, molesting,

sexually assaulting or attacking a person in violation

of the standing criminal protective order . . . .’’ In the

present case, the trial court instructed the jury on count

two in the following manner: ‘‘The defendant is charged

in count . . . two with criminal violation of a standing

criminal protective order. . . . For you to find the

defendant guilty of this charge, the state must prove

the following elements beyond a reasonable doubt. . . .

[T]he first element is that a court issued a standing

criminal protective order against the defendant. . . .

The second element is that the defendant violated a

condition of the order. To violate a condition means to

act in disregard of or to go against the condition. In this

case, the state alleges that threatening or harassing

the [victim] was forbidden by the order, and you have

the order. As far as what’s the definition of a threat,
use the same definition that I’m going to give you on

threatening.18 As far as what’s harassing, harassing is

to trouble, worry, or torment; that’s the legal definition.

Trouble, worry, or torment.’’ (Emphasis added; footnote

added.)

In Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530,

172 L. Ed. 2d 388 (2008), the United States Supreme

Court held that, when a jury is instructed on multiple

theories of guilt and one is improper, the error may

be reviewed for harmlessness.19 ‘‘An instructional error

arising in the context of multiple theories of guilt no

more vitiates all the jury’s findings than does omission

or misstatement of an element of the offense when only

one theory is submitted.’’ (Emphasis omitted.) Id. When

reviewing instructional errors based on multiple theories of guilt, ‘‘a reviewing court finding such error

should ask whether the flaw in the instructions ‘had

substantial and injurious effect or influence in determining the jury’s verdict.’ ’’ Id., 58, quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed.

2d 353 (1993); see also Skilling v. United States, 561

U.S. 358, 414 n.46, 130 S. Ct. 2896, 177 L. Ed. 2d 619

(2010) (Hedgpeth’s harmless error analysis ‘‘applies

equally to cases on direct appeal’’).

Federal courts of appeals applying this harmlessness

standard to cases involving multiple theories of guilt

have required varying degrees of proof of harm.20 See

Sorich v. United States, 709 F.3d 670, 674 (7th Cir. 2013)

(‘‘[w]e have described the [harmless error] inquiry . . .

as a question of whether the trial evidence was such

that the jury must have convicted the petitioners on

both [alternative] theories’’), cert. denied, 571 U.S. 1131,

134 S. Ct. 952, 187 L. Ed. 2d 786 (2014); United States

v. Jefferson, 674 F.3d 332, 361 (4th Cir.) (‘‘if the evidence

that the jury necessarily credited in order to convict

the defendant under the instructions given . . . is such

that the jury must have convicted the defendant on the

legally adequate ground in addition to or instead of

the legally inadequate ground, the conviction may be

affirmed’’ (internal quotation marks omitted)), cert.

denied, 568 U.S. 1041, 133 S. Ct. 648, 184 L. Ed. 2d 482

(2012); United States v. Skilling, 638 F.3d 480, 482 (5th

Cir. 2011) (discussing how one way to show ‘‘an [alternative theory] error is harmless’’ is ‘‘if the jury, in convicting on an invalid theory of guilt, necessarily found

facts establishing guilt on a valid theory’’), cert. denied,

566 U.S. 956, 132 S. Ct. 1905, 182 L. Ed. 2d 807 (2012);

see also United States v. McKye, 734 F.3d 1104, 1110 n.6

(10th Cir. 2013) (not relying on Hedgpeth but concluding

that ‘‘the submission of an alternative theory for making

[a] finding cannot sustain the verdict unless it is possible

to determine the verdict rested on the valid ground’’

or ‘‘the jury necessarily made the findings required to

support a conviction on the valid ground’’ (internal quotation marks omitted)). Nevertheless, we are persuaded

by the common thread in several of these cases that
permits a finding of harmlessness if the jury necessarily

found facts to support the conviction on a valid theory.

In the present case, the state charged the defendant

with violating a criminal protective order under two

alternative theories, threatening or harassing the victim.

The defendant does not raise an instructional error

claim as to the trial court’s instruction on threatening.21

As the jury found the defendant guilty on count three

for threatening, the jury necessarily found that the

defendant threatened the victim in violation of the criminal protective order in connection with count two.22

See United States v. Jefferson, supra, 674 F.3d 362–63

(considering jury’s findings on other counts in harmlessness analysis); United States v. Wilkes, 662 F.3d

524, 544 (9th Cir. 2011) (‘‘[T]he jury’s guilty verdict on

the separate substantive count of bribery [of a public

official] in violation of 18 U.S.C. § 201 confirms beyond

any reasonable doubt that the jury would have convicted [the defendant] of honest services fraud . . . .

Any error concerning the jury instruction was harmless.’’), cert. denied, 566 U.S. 981, 132 S. Ct. 2119, 182

L. Ed. 2d 881 (2012). In the present case, it is ‘‘clear

beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error . . . .’’

Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999). As a result, we conclude that

any instructional error as to count two was harmless

under the fourth prong of Golding. See, e.g., State v.

Peeler, 271 Conn. 338, 399, 857 A.2d 808 (2004) (‘‘we

need not reach the merits of the defendant’s constitutional claims because, even if we were to assume that

the defendant’s claims are valid, the state has established beyond a reasonable doubt that any impropriety

was harmless’’), cert. denied, 546 U.S. 845, 126 S.C. 94,

163 L. Ed. 2d 110 (2005).

The judgment of the Appellate Court is affirmed.

In this opinion PALMER, D’AURIA and MULLINS,

Js., concurred.

* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we

decline to identify any party protected or sought to be protected under a

protective order or a restraining order that was issued or applied for, or

others through whom that party’s identity may be ascertained.

** The listing of justices reflects their seniority status on this court as of

the date of oral argument.

*** September 21, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 General Statutes § 53a-223a provides: ‘‘(a) A person is guilty of criminal

violation of a standing criminal protective order when an order issued

pursuant to subsection (a) of section 53a-40e has been issued against such

person, and such person violates such order.

‘‘(b) No person who is listed as a protected person in such standing

criminal protective order may be criminally liable for (1) soliciting,

requesting, commanding, importuning or intentionally aiding in the violation

of the standing criminal protective order pursuant to subsection (a) of

section 53a-8, or (2) conspiracy to violate such standing criminal protective

order pursuant to section 53a-48.

‘‘(c) Criminal violation of a standing criminal protective order is a class

D felony, except that any violation that involves (1) imposing any restraint

upon the person or liberty of a person in violation of the standing criminal

protective order, or (2) threatening, harassing, assaulting, molesting, sexu-
ally assaulting or attacking a person in violation of the standing criminal

protective order is a class C felony.’’

2 As the Appellate Court aptly noted, ‘‘[No.] 16-67 of the 2016 Public

Acts . . . amended subsection (a) of § 53a-62 by redesignating the existing

subdivisions (2) and (3) as subdivision (2) (A) and (B) without modifying

the language of that provision. We refer to the 2015 revision of § 53a-62 (a)

(3) because that is the statute under which the defendant was charged

and convicted.’’ State v. Meadows, 185 Conn. App. 287, 290 n.1, 197 A.3d

464 (2018).

3 We granted the defendant’s petition for certification to appeal, limited

to the following issues: ‘‘Did the Appellate Court [correctly] conclude that

(1) the defendant’s constitutional right to be free from double jeopardy was

not violated when he was convicted of two counts of violation of a standing

criminal protective order on the basis of different words spoken to the

protected person during a single, brief, and uninterrupted statement, and

(2) the jury was properly instructed that to ‘harass’ means to ‘trouble, worry

or torment’ for purposes of an enhanced penalty for violating a standing

criminal protective order?’’ State v. Meadows, 330 Conn. 947, 947–48, 196

A.3d 327 (2018).

4

It appears that the defendant’s reference to ‘‘Tracey Morton’’ is a misstatement of the name of the victim in a high profile case of family violence.

See part I A of this decision.

5 The state initially charged the defendant with one count of violation of

a standing criminal protective order, threatening in the second degree, and

disorderly conduct in violation of General Statutes § 53a-182.

6 Count one of the operative information provides: ‘‘In the Superior Court

of Connecticut, New Haven judicial district, geographical area twenty-three,

Assistant State’s Attorney Laura DeLeo accuses the defendant, CODY [M.],

of VIOLATION OF A STANDING CRIMINAL PROTECTIVE ORDER, and

charges that, on or about September 1, 2015, at or about the location of

239 Whalley Avenue, in the city of New Haven, CODY [M.], did violate the

terms of a standing criminal protective order that had issued against him,

to wit: by having contact with the protected person, in violation of [§]

53a-223a.’’

Count two provides: ‘‘In the Superior Court of Connecticut, New Haven

judicial district, geographical area twenty-three, Assistant State’s Attorney

Laura DeLeo accuses the defendant, CODY [M.], of VIOLATION OF A

STANDING CRIMINAL PROTECTIVE ORDER, and charges that, on or about

September 1, 2015, at or about the location of 239 Whalley Avenue, in the

city of New Haven, CODY [M.], did violate the terms of a standing criminal

protective order that had issued against him, to wit: by threatening and

harassing the protected person, in violation of [§] 53a-223a.’’

7 The trial court sentenced the defendant to a total effective sentence of

eight years imprisonment with seven years of special parole.

8 Although the defendant did not preserve this double jeopardy claim at

trial, the Appellate Court considered it pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317

Conn. 773, 781, 120 A.3d 1188 (2015). See State v. Meadows, supra, 185

Conn. App. 293–94.

9 For an example of a case that reviews a similar issue but analyzes double

jeopardy under separate statutory provisions, see State v. Culver, 97 Conn.

App. 332, 338–39 n.7, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d

961 (2006).

10 ‘‘Of course, [w]e have long held that [c]riminal statutes are not to be

read more broadly than their language plainly requires . . . . Moreover, [a]

penal statute must be construed strictly against the state and liberally in

favor of the accused. . . . [A]mbiguities are ordinarily to be resolved in

favor of the defendant. . . . In the interpretation of statutory provisions

[however] the application of common sense to the language is not to be

excluded. . . . Thus, [e]ven applying the view that a penal statute should

be strictly construed, the words of a statute are to be construed with common

sense and according to the commonly approved usage of the language.’’

(Citations omitted; internal quotation marks omitted.) State v. Love, 246

Conn. 402, 412 n.13, 717 A.2d 670 (1998).

11 This language was later amended to read ‘‘standing criminal protective

order . . . .’’ Public Acts 2010, No. 10-144, § 6.

12 The legislative history also indicates that the legislature was aware of

the statute’s ambiguity at the time of its enactment. Representative Arthur

J. O’Neill discussed this issue: ‘‘[T]he way it reads, it seems to say that a

person is guilty of a violation if a person violates the order. . . . [I]s that
existing language? It seems a little circular to me . . . .’’ (Emphasis added.)

39 H.R. Proc., supra, p. 3341. Representative Scalettar responded: ‘‘I believe

that is existing language . . . . It would either be [General Statutes § 46b38c] or the civil restraining orders statute.’’ Id. Earlier in the discussion,

Representative Scalettar explained that ‘‘[t]his is the same language as used

in [§] 46b-38c (e) with respect to criminal protective orders and it would

have the same meaning as that statute has been interpreted.’’ (Emphasis

added.) Id., p. 3340. The statutory language in civil statutes does not, however, provide assistance when determining the unit of prosecution. Because

of the importance of this issue, the legislature may want to consider the

consistency of § 53a-223a with the surrounding penal statutes.

13 Indeed, separate punishment for each act that constitutes a violation

of a protective order is responsive to the nature of domestic violence

offenses. ‘‘An abuser’s recurrent exertion of power and control over the

survivor pervades the survivor’s experience, and without effective intervention, battering typically escalates in frequency and severity over time. . . .

Intimate partner abuse rarely consists only of a single, isolated event; instead,

the abusive partner more commonly engages in an ongoing process of

violence and control.’’ (Emphasis added; footnotes omitted.) J. Stoever,

‘‘Enjoining Abuse: The Case for Indefinite Domestic Violence Protection

Orders,’’ 67 Vand. L. Rev. 1015, 1023–24 (2014).

14 At oral argument before this court, the state asserted that, if the defendant had said only ‘‘I’m going to kill you,’’ that would be one distinct act

supporting one count of violating a protective order, even though it violated

two conditions, namely, a contact and a threat. According to the state,

charging the defendant in this case with two counts without running afoul of

double jeopardy protections ‘‘depends on some separation in time, however

brief.’’ Therefore, the state concedes the limits on its ability to charge a

defendant for protective order violations. In other words, if the violations

in this case arose from a single act, such as a violation for contacting the

victim and a violation for threatening her, as presented by the ‘‘I’m going

to kill you’’ hypothetical, there could be only one charge.

15 We note that the defendant contends that (1) the claimed instructional

error was not harmless beyond a reasonable doubt, and (2) contrary to the

United States Supreme Court’s decision in Neder v. United States, 527 U.S.

1, 15–17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the Connecticut constitution

does not permit harmless error review if a jury instruction incorrectly states

the elements of the crime. For its part, the state contends that this court

should not consider the defendant’s state constitutional claim because the

argument is inapplicable to this case and the claim fails on the merits.

16 Although the defendant did not object to the instructions at trial or

expressly seek review under State v. Golding, supra, 213 Conn. 239–40, the

Appellate Court extended review under State v. Elson, 311 Conn. 726, 754–55,

91 A.3d 862 (2014), because the claim was one of ‘‘constitutional magnitude.’’

State v. Meadows, supra, 185 Conn. App. 299. We note that preservation

and reviewability are not at issue in this certified appeal, and we consider

the defendant’s claim accordingly.

17 The defendant argues that the state abandoned the harmless error analysis by failing to brief it below. Specifically, the defendant argues that the

state briefed only that the instructional error was waived under State v.

Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), and plain error. The state

counters that it essentially briefed harmlessness below by arguing ‘‘the

absence of ‘manifest injustice’ under the plain error doctrine.’’ We agree

with the state.

We recognize that the state bears the burden of establishing harmlessness.

See, e.g., State v. Peeler, 271 Conn. 338, 384, 857 A.2d 808 (2004) (‘‘[i]f the

claim is of constitutional magnitude, the state has the burden of proving

the constitutional error was harmless beyond a reasonable doubt’’ (internal

quotation marks omitted)), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.

Ed. 2d 110 (2005). Because this is the state’s burden, the Appellate Court

has declined to reach harmlessness when the state has failed to argue the

issue on appeal. See, e.g., State v. Liam M., 176 Conn. App. 807, 824 n.14,

172 A.3d 243, cert. denied, 327 Conn. 978, 174 A.3d 196 (2017); State v. Perez,

147 Conn. App. 53, 124, 80 A.3d 103 (2013), aff’d, 322 Conn. 118, 139 A.3d

654 (2016).

In the present case, however, the state has sufficiently asserted harmlessness below to merit our review. First, the defendant did not clearly brief

either plain error or Golding review in his initial brief to the Appellate Court.

The state, therefore, could not be sure under what standard the defendant

was proceeding. Second, the state’s argument asserting that there was no
manifest injustice with respect to plain error implicitly incorporated a harmless error analysis. As such, we will proceed to analyze harmlessness in this

certified appeal.

18 With respect to the third count, charging threatening in violation of

§ 53a-62, the trial court instructed: ‘‘A threat can . . . be punishable [only]

when it is a true threat, that is, a threat that a reasonable person would

understand is a serious expression of an intent to harm or assault and not

mere puffery, bluster, jest, or hyperbole, or a—and then you see the little

arrow up there, I added something—or a spontaneous act of frustration. In

determining whether the threat is a true threat, consider the particular

factual context in which the allegations—in which the allegedly threatening

conduct occurred, which could include the reaction of the person allegedly

being threatened and the defendant’s conduct before and after the alleged

threatening conduct.’’

19 The defendant contends that the harmlessness rule in Neder v. United

States, 527 U.S. 1, 15–17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), guides

the analysis in the present case. See id., 17 (‘‘[when] a reviewing court

concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error, the erroneous instruction is

properly found to be harmless’’). We disagree. Although the court in Hedgpeth v. Pulido, supra, 555 U.S. 57, relied on Neder to extend harmlessness

to a multiple theories of guilt case, which was not at issue in Neder, it

indicated that the ‘‘substantial and injurious effect’’ standard applied rather

than the uncontested element and overwhelming evidence analysis used in

Neder. Id., 61–62. For this reason, we do not reach the defendant’s claim

that the Connecticut constitution does not permit harmless error review of

element instructional errors or the issue of ‘‘whether [this court should]

adopt the controversial Neder rule as a state constitutional matter’’ under

State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992).

20 ‘‘[Hedgpeth] requires a reviewing court to determine whether the relevant error ‘had substantial and injurious effect or influence in determining

the jury’s verdict.’ However, the circuits are divided in their interpretation

of this standard. Some [federal courts of appeals] have interpreted the

rule as imposing a less demanding standard on the defendant-appellant to

establish grounds for reversal, merely requiring it to be shown, for example,

that the jury did not necessarily make the findings to rely on the valid theory

of guilt. Other [courts], however, impose a more demanding standard, for

example, finding an error harmless unless the defendant-appellant can show

not only that the jury did not necessarily rely on the valid theory of guilt,

but also had evidence that could rationally lead to an acquittal on the basis

of the valid theory.’’ E. Khalek, Note, ‘‘Searching for a Harmless Alternative:

Applying the Harmless Error Standard to Alternative Theory Jury Instructions,’’ 83 Fordham L. Rev. 295, 295–96 (2014).

21 The defendant does argue that there was a limiting instruction in place

that restricted the jury on the evidence it could consider under counts three

and four, so the jury could not have relied on the same evidence for each

count. This is inconsistent with the record. The trial court provided several

limiting instructions, including one that limited what evidence could be

considered under each count. But this instruction actually provided that

evidence regarding certain statements made by the defendant should be

considered under the first two counts. As a result, there was less evidence

to prove intent in connection with the third and fourth counts, and the

limiting instruction would not affect the jury’s verdict on these counts.

The court instructed the jury, after hearing evidence on the May hearing

at which the protective order was put in place, to limit the use of certain

statements made by the defendant. Initially, the court limited the statements

in the following manner: ‘‘[The defendant’s] statements in part are offered

as circumstantial evidence of what his mental state might’ve been on September 1 with regard to count three, which is a specific intent crime, and

count four, which—in which he’s charged with uttering a threat with—with

reckless disregard of the consequences that might occur, and I’ll explain

further in my final instructions, okay?’’ Then, the court corrected its original

instruction and stated: ‘‘I said the statements of—recorded on May 12 were

admitted—the statements of the defendant were recorded for a limited

purpose, and I said [that] they’re offered to show his intent with regard to

the threatening. I misspoke there, and I’ll go through these all again, and

I’ll have a list. Actually, they’re offered with regard to [the defendant’s]

intent on the violation of the standing criminal restraining order counts and

not the threatening, okay?’’
22 In a statement before the court and outside the presence of the jury,

defense counsel conceded that the factual basis for count three is incorporated into count two. Defense counsel stated: ‘‘So, the proposed limiting

instruction that I am asking for is that, if you find beyond a reasonable

doubt [that] the defendant is guilty of threatening in the second degree as

alleged in count three of the information, you may use that finding when

determining whether the defendant is also guilty beyond a reasonable doubt

of committing the crime of violating the standing criminal restraining order,

as alleged in count two of the information.

* * *

‘‘[The] defense cannot argue and would concede that . . . [count] three

is incorporated into count . . . two and, therefore, could be a basis of

this violation.’’ (Emphasis added.)