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*********************************************** 
STATE OF CONNECTICUT v. BRIAN MANSFIELD

(AC 41587)

Alvord, Cradle and Sullivan, Js.

Syllabus

Convicted, after a jury trial, of the crimes of breach of the peace in the

second degree and assault of public safety personnel, the defendant

appealed to this court. On election day on November 8, 2016, the defendant went to the polling place located at the Bethel Town Hall where

he proceeded to remove papers from a dry erase board and throw them

on the ground and erase information written on the board. He entered

the part of the town hall where voting was taking place and was given

a ballot, which he then refused to return. Volunteers asked a police

officer, P, who was providing security, for assistance. The defendant,

who continued to refuse to return the ballot, then placed the ballot in

his pants and dared P to retrieve the ballot from his pants. At this

point, the volunteers allowed the defendant to keep the ballot and the

defendant exited the area, knocking over a basket of stickers as he did

so. He then took several boxes of cookies from Girl Scouts who were

selling cookies outside the voting location and, when told by P to return

the boxes, threw them aggressively onto the table. P then began to

escort the defendant out of the town hall and, as they were walking,

the defendant spit on a picture hanging on the wall. The next day, two

police officers, B and C, went to the defendant’s home to serve a summons for breach of the peace in violation of the applicable statute (§ 53a181 (a) (1)), based on the defendant’s conduct the day before. C handed

the summons to the defendant and asked that he sign it. The defendant

crumpled the summons, threw it on the ground, and then spat in C’s

face, at which point the defendant was arrested and charged with assault

of public safety personnel. Held:

1. The defendant’s challenges to his conviction of breach of the peace in

violation of § 53a-181 (a) (1) were unavailing:

a. The evidence was sufficient to support the defendant’s conviction of

breach of the peace in the second degree, as the jury reasonably could

have concluded that the cumulative force of the evidence established

that the defendant’s conduct on November 8, 2016, was physically tumultuous and contained the requisite level of physicality.

b. This court found unavailing the defendant’s claim that § 53a-181 (a)

(1) was unconstitutionally vague as applied to him, as a reasonable

person would anticipate that § 53a-181 (a) (1) would apply to the defendant’s conduct on November 8, 2016.

c. The defendant could not prevail on his unpreserved claim that the

trial court improperly instructed the jury regarding the definition of

‘‘tumultuous behavior’’ in § 53a-181 (a) (1), as the defendant implicitly

waived his claim of instructional error; defense counsel had an opportunity to review the jury charge language, acquiesced in the use of the

instructional language at issue, and stated that he had no objection to

the removal of the language now challenged by the defendant.

d. The defendant could not prevail on his claim that the trial court

committed plain error in its instructions to the jury, which was based

on his assertion that the court’s decision to remove certain language

from the conduct element of § 53-181 (a) (1) may have led the jury to

convict him for bad manners, rather than for conduct that portended

imminent physical violence, as the court clearly instructed the jury that

the defendant’s conduct must be more than mere bad manners.

2. The defendant could not prevail on his claim that the evidence was

insufficient to support his conviction of assault of public safety personnel

because the state failed to prove that C was acting in the performance of

his official duties; C was on duty and wearing his uniform on November

9, 2016, and, on the basis of that fact, the jury reasonably could have

concluded that his decision to accompany B to the home of the defendant

and to issue the summons was made in his official capacity as a police

officer and, therefore, C was acting within the scope of his employment.

5. The defendant could not prevail on his unpreserved claim that the trial
court failed to adequately instruct the jury regarding the law governing

police discretion to issue and serve a summons on an individual who

has not been arrested: the defendant implicitly waived his claim that

the court’s instructions were improper, as defense counsel had an opportunity to review the jury instructions and did not object to them, he

agreed that the instructions given were sufficient and, after the jury

sent a note requesting clarification, he agreed with the court’s decision

not to further charge the jury on that issue, the court having concluded

that the issue was one that the jurors had to deliberate on and reach

themselves; moreover, the defendant could not prevail on his claim that

the court committed plain error in declining to answer the jury’s note

requesting clarification as to when an officer’s duties end, as there was

no reasonable possibility that the jury would have concluded that C

was not performing his lawful duty and acquitted the defendant because

whether a police officer has lawful authority to conduct an arrest or

serve a summons was irrelevant to the question of whether C was acting

in the performance of his official duties.

Argued October 6—officially released December 22, 2020

Procedural History

Substitute informations charging the defendant, in

the first case, with one count of the crime of breach

of the peace in the second degree and two counts of

the crime of littering, and, in the second case, with the

crime of assault of public safety personnel, brought to

the Superior Court in the judicial district of Danbury,

geographical area number three, where the court,

Russo, J., granted the state’s motion for joinder; thereafter, the charges of breach of the peace in the second

degree and assault of public safety personnel were tried

to the jury before Russo, J.; verdicts of guilty; subsequently, the charges of littering were tried to the court;

judgment of not guilty; thereafter, the court rendered

judgments of guilty in accordance with the verdicts,

from which the defendant appealed to this court.

Affirmed.

Timothy H. Everett, assigned counsel, with whom,

on the brief, were Alexis C. Coudert and Jeremy A.

Weyman, certified legal interns, for the appellant

(defendant).

Jonathan M. Sousa, deputy assistant state’s attorney,

with whom, on the brief, were Stephen J. Sedensky,

state’s attorney, and Warren Murray, former supervisory assistant state’s attorney, for the appellee (state).
Opinion

SULLIVAN, J. The defendant, Brian Mansfield,

appeals from the judgments of conviction, rendered

after a jury trial, of the crimes of breach of the peace

in the second degree in violation of General Statutes

§ 53a-181 (a) (1) and assault of public safety personnel

in violation of General Statutes § 53a-167c (a) (5). On

appeal, with regard to his conviction of breach of the

peace, the defendant ‘‘challenges the sufficiency of the

state’s evidence to prove the theory of liability for which

he was prosecuted: that he . . . engaged in tumultuous

behavior’’; (emphasis omitted); claims that ‘‘[t]he prosecution’s theory of criminal liability rendered § 53a-181

(a) (1) unconstitutionally vague as applied,’’ and that the

trial court’s instruction on the definition of ‘‘tumultuous

behavior’’ misled the jury. With regard to his conviction

of assault of public safety personnel, the defendant

claims that ‘‘[t]he state offered insufficient evidence to

prove that [the] [o]fficer . . . was acting lawfully in

the performance of his official duties,’’ and that ‘‘[t]he

trial court did not respond adequately to the jury’s

request . . . to be instructed on the law governing

police discretion to issue and serve a summons [on] an

individual who has not been arrested first.’’ We affirm

the judgments of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to the

defendant’s appeal. On the evening of November 8,

2016—election day—Officer Leonard Penna of the Newtown Police Department was working a private duty

job providing security at the Bethel Town Hall (town

hall) from 6 to 10 p.m. While Officer Penna was working,

the defendant entered the town hall and approached a

dry erase board in the lobby. The defendant removed

several documents from the board and threw them on

the ground, and erased the information that had been

written on the board. The defendant then entered the

gymnasium inside of the town hall where voting was

taking place, and the volunteers working the polling

place gave the defendant a ballot. The volunteers

requested that the defendant return the ballot, and he

refused. The volunteers then called to Officer Penna for

assistance. After Officer Penna entered the gymnasium,

the defendant continued to refuse to return the ballot

and put the ballot in his pants. Officer Penna requested

that the defendant return the ballot to the volunteers,

and the defendant responded: ‘‘I bet you would like to

go retrieve that out of my pants.’’ After the defendant

made this remark, the volunteers allowed him to keep

the ballot. As the defendant exited the gymnasium, he

knocked over a basket of ‘‘I Voted Today’’ stickers.

Outside of the gymnasium, a group of Girl Scouts

had set up a table where they were selling cookies.

After exiting the gymnasium, the defendant took several

boxes of cookies from the Girl Scouts and placed them
inside of the bag that he was carrying. One of the girls

began to yell at the defendant, and Officer Penna exited

the gymnasium to respond to the commotion. Officer

Penna told the defendant to return the boxes of cookies

that he had taken, and the defendant responded by

throwing the boxes onto the table in an aggressive manner. Officer Penna then began to escort the defendant

to the exit of the town hall, and, as they walked down

the hallway, the defendant spat on a picture hanging

on the wall. Officer Penna then contacted the Bethel

Police Department (department). Officers Jason Broad

and Courtney Whaley of the department responded to

Officer Penna’s call. Officer Whaley arrived first, and

she spoke with the defendant and attempted to calm

him down. Officer Broad arrived shortly after Officer

Whaley, and he assisted Officer Penna in helping the

defendant get into his vehicle while Officer Whaley

spoke with Lisa Berg, the Bethel Town Clerk. The defendant left the town hall in his vehicle, and he was not

issued a summons that night.

The following day, November 9, 2016, Officer Broad

was directed to complete a summons and issue it to

the defendant at his home. The summons was for breach

of the peace, based on the defendant’s conduct the prior

night. Officer Broad was not on duty on November 9,

2016, but he was directed to complete and issue the

summons because he was the investigating officer.

Because Officer Broad was off duty, he was not in

uniform. For this reason, Sergeant James Christos of

the department, who was on duty and in uniform,

decided that he should accompany Officer Broad to the

home of the defendant and issue the summons himself.

Upon arrival at the defendant’s home, Officer Broad

and Sergeant Christos knocked on the door, and the

defendant answered. Sergeant Christos handed the

defendant a copy of the summons and requested that

he sign it. The defendant crumpled the copy of the

summons, threw it on the ground, and then spat in

Sergeant Christos’ face. The defendant attempted to

close the door on them, but Officer Broad and Sergeant

Christos stopped him and took him into custody. The

defendant subsequently was charged with assault of a

public safety officer.

Following a jury trial, the defendant was convicted

of breach of the peace in the second degree, based on

his conduct on the night of November 8, 2016, and

assault of public safety personnel, based on his conduct

on November 9, 2016. It is from these judgments of

conviction that the defendant appeals. Additional facts

and procedural history will be set forth as necessary.

I

The defendant challenges his conviction of breach

of the peace in the second degree on the following

grounds: the state failed to produce sufficient evidence

to prove the theory of liability under which the defen-
dant was prosecuted, the state’s theory of criminal liability rendered the breach of the peace in the second

degree statute unconstitutionally vague as it was

applied, and the trial court misled the jury by providing

an inappropriate instruction with regard to the definition of ‘‘tumultuous behavior.’’ We address each claim

in turn.

A

First, we address the defendant’s claim that the state

failed to produce sufficient evidence to prove the theory

of liability under which he was prosecuted. Specifically,

the defendant claims that ‘‘[t]he meaning of the term

‘tumultuous’ is dependent on the terms that surround

it1

. . . [and that] the state chose not to include any

of those terms in the information, offered no evidence of

physicality or imminent violence to satisfy the conduct

element of the . . . statute, and did not request that

the trial court instruct the jury that it had to find an

element of physicality in order to convict.’’ (Footnote

added.) The defendant further claims that the state’s

‘‘global argument’’—that the defendant is guilty ‘‘based

on [his] ‘collective behavior’ ’’ on the night of November

8, 2016—inappropriately frames the requirements of

§ 53a-181 (a) (1). We disagree.

We begin by setting forth the applicable standard

of review. ‘‘In reviewing the question of whether the

evidence was sufficient to sustain the conviction, 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 jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . On 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 jury’s verdict

of guilty.’’ (Internal quotation marks omitted.) State v.

Allen, 289 Conn. 550, 555–56, 958 A.2d 1214 (2008).

Review of a claim of insufficient evidence ‘‘must necessarily begin with the elements that the charged statute

requires to be proved. Such a review involves statutory

construction, which is a question of law. Our review,

therefore, is plenary.’’ State v. Carolina, 143 Conn. App.

438, 443, 69 A.3d 341, cert. denied, 310 Conn. 904, 75

A.3d 31 (2013).

The statute at issue is § 53a-181 (a) (1), and the defendant claims that the state failed to produce evidence

sufficient to satisfy that statute’s conduct element,

which requires that the person engage ‘‘in fighting or in

violent, tumultuous or threatening behavior in a public

place . . . .’’ In interpreting this requirement, our

Supreme Court has noted that this court has held that

violent, tumultuous or threatening behavior means
‘‘conduct which actually involves physical violence or

portends imminent physical violence’’; (internal quotation marks omitted) State v. Indrisano, 228 Conn. 795,

811, 640 A.2d 986 (1994), citing State v. Lo Sacco, 12

Conn. App. 481, 491, 531 A.2d 184, cert. denied, 205

Conn. 814, 533 A.2d 568 (1987); and our Supreme Court

has held that ‘‘the terms ‘fighting’ and ‘violent’ lend

an aspect of physicality to the more nebulous terms

‘tumultuous’ and ‘threatening.’ Thus . . . subdivision

(1) of § 53a-182 (a) prohibits physical fighting, and

physically violent, threatening or tumultuous behavior.’’ (Emphasis in original.) State v. Szymkiewicz, 237

Conn. 613, 619, 678 A.2d 473 (1996).2

The defendant’s argument—that the state failed to

satisfy the conduct element of the breach of the peace

statute and that the state’s ‘‘global argument’’ inappropriately framed the requirements of § 53a-181 (a) (1)—

is unavailing. Although the defendant is correct in stating that a conviction of breach of the peace in the

second degree requires conduct with an element of

physicality, we disagree with his claim that the evidence

relative to his conduct on the night of November 8,

2016 ‘‘is insufficient to sustain the jury’s verdict.’’ To

the contrary, there is ample evidence in the record from

which the jury reasonably could have concluded that

the defendant’s conduct on the night in question contained the requisite level of physicality to constitute a

breach of the peace. On election night, the defendant

entered a polling place, wherein he removed and threw

documents, and erased information from a white board;

refused to return a ballot; put the ballot in his pants

and told the police officer that he ‘‘bet [the officer]

would like to go retrieve that out of [his] pants’’;

knocked over a basket of ‘‘I Voted Today’’ stickers; took

boxes of cookies from Girl Scouts and then aggressively

threw them when instructed to return them; and spat

on a picture hanging on the wall. Any one of these

isolated incidents may not be enough to satisfy the

requirements of the statute, but a conviction need not

be based on only one isolated act. See State v. Szymkiewicz, supra, 237 Conn. 623. Because the cumulative

force of the evidence leads to the conclusion that the

defendant’s conduct on the night of November 8, 2016

was physically tumultuous, we reject the defendant’s

claim that the state failed to produce sufficient evidence

from which the jury reasonably could have concluded

that the defendant was guilty of breach of the peace in

the second degree.

B

We next address the defendant’s claim that the state’s

theory of criminal liability rendered § 53a-181 (a) (1)

unconstitutionally vague as it was applied to him. Specifically, the defendant claims that his conviction of

breach of the peace in the second degree should be

overturned because ‘‘[t]he state chose to prosecute the
defendant on a theory of breach of [the] peace . . .

fashioned by redacting from the . . . statute language

that is needed in order to avoid constitutional infirmity.’’

In response, the state argues that the defendant’s claim

must fail because ‘‘at the time of the offense, he reasonably understood that his behavior was prohibited by

§ 53a-181 (a) (1), and . . . [because] the evidence sufficiently established that [the defendant’s] behavior

amounted to breach of [the] peace under the statute.’’

We agree with the state.

The long form information charging the defendant

with breach of the peace in the second degree employed

the following language: ‘‘[T]he state . . . accuses [the

defendant] of breach of peace and charges that in the

town of Bethel on or about November 8, 2016, [the

defendant], with the intent to cause inconvenience,

annoyance or alarm, or recklessly creating a risk

thereof, engaged in tumultuous behavior in a public

place . . . in violation of [§ 53a-181 (a) (1)].’’ At trial,

the court’s charge to the jury as to the conduct element

of § 53a-181 (a) (1), which reflected the language

employed in the information, provided: ‘‘Element two,

conduct. The second element is the defendant engaged

in tumultuous behavior. The defendant’s conduct must

be more than a display of mere bad manners. It must

cause or create a risk of causing inconvenience, annoyance or alarm among members of the public.’’ Accordingly, both the state and the court removed language

from § 53a-181 (a) (1), shortening the phrase ‘‘engages

in fighting, or in violent, tumultuous or threatening

behavior,’’ to ‘‘engages in tumultuous behavior.’’

Before addressing the defendant’s claim in full, we

first set forth the applicable standard of review. ‘‘The

determination of whether a statutory provision is

unconstitutionally vague is a question of law over which

we exercise de novo review. . . . In undertaking such

review, we are mindful that [a] statute is not void for

vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its

validity. . . . To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant]

therefore must . . . demonstrate beyond a reasonable

doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and

discriminatory enforcement.’’ (Citation omitted; internal quotation marks omitted.) State v. Winot, 294 Conn.

753, 758–59, 988 A.2d 188 (2010). ‘‘The proper test for

determining [whether] a statute is vague as applied is

whether a reasonable person would have anticipated

that the statute would apply to his or her particular

conduct. . . . The test is objectively applied to the

actor’s conduct and judged by a reasonable person’s

reading of the statute. . . . If the language of a statute

fails to provide definite notice of prohibited conduct,

fair warning can be provided by prior judicial opinions

involving the statute . . . or by an examination of
whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the

use of his common sense and ordinary understanding.’’

(Internal quotation marks omitted.) State v. Lavigne,

121 Conn. App. 190, 205–206, 995 A.2d 94 (2010), aff’d,

307 Conn. 592, 57 A.3d 332 (2012).

The defendant’s claim is one of arbitrary and discriminatory enforcement, as he argues that ‘‘by redacting

language from the . . . statute . . . the [state] . . .

rendered § 53a-181 (a) (1) unconstitutionally vague as

applied.’’ This claim fails because the statute, as applied

to the defendant, is not unconstitutionally vague. The

proper test for claims of this nature was articulated

previously as ‘‘whether a reasonable person would have

anticipated that the statute would apply to his or her

particular conduct.’’ (Internal quotation marks omitted.) State v. Lavigne, supra, 121 Conn. App. 205. In

the present case, there is no question that a reasonable

person would anticipate that § 53a-181 (a) (1) would

apply to the conduct of the defendant on the night of

November 8, 2016, as described in part I A of this opinion. Accordingly, we reject the defendant’s claim that

§ 53a-181 (a) (1) is unconstitutionally vague as it was

applied to him.

C

We now turn to the defendant’s claim that the trial

court misled the jury by providing an inappropriate

instruction with regard to the definition of ‘‘tumultuous

behavior.’’ Specifically, the defendant claims that ‘‘[b]y

telling the jury that the conduct element [of breach of

the peace in the second degree] required only that the

jury find that the defendant engaged in ‘tumultuous’

behavior, the trial court did not provide the jury with

a viable theory of liability under which the jury could

properly convict the defendant.’’ In response, the state

argues that the defendant’s claim in this regard is not

reviewable because he ‘‘induced the alleged error or

implicitly waived his unpreserved instructional error

claim.’’ In the alternative, the state claims that ‘‘the trial

court’s instruction was correct in law and sufficiently

guided the jury [in deciding] whether the defendant

committed breach of [the] peace under § 53a-181 (a)

(1).’’ We conclude that the defendant implicitly waived

his claim of instructional error.

At trial, the following exchange took place during

the charging conference:

‘‘The Court: [W]e begin with the charges, the amended

information . . . breach of the peace in the second

degree?

‘‘[The Prosecutor]: There is something that the state

has here, Your Honor. . . . In the charging document,

the state’s only making the claim that the defendant

engaged in tumultuous behavior in a public place. . . .

‘‘The Court: So, you’re suggesting to excise ‘fighting
or in violent,’ those words?

‘‘[The Prosecutor]: Yes and ‘or threaten[ing] behavior.’ And just leave . . . tumultuous behavior.

‘‘The Court: [Defense counsel], so the proposal would

read: Such person engages in tumultuous behavior in

a public place.

‘‘[Defense Counsel]: Your Honor, I . . . have no

objection to the change. . . .

‘‘The Court: So . . . the state’s position is it should

read: So that such person engages in tumultuous behavior in a public place?

‘‘[The Prosecutor]: Correct.

‘‘The Court: [Defense counsel].

‘‘[Defense Counsel]: I have no objection to the

change, Your Honor.’’

The following colloquy later took place regarding

the specific language that the court would use when

instructing the jury as to the conduct element of § 53a181 (a) (1):

‘‘[The Prosecutor]: [I]n the breach of peace statute

. . . [the] element on conduct . . . says . . . that the

defendant engaged in fighting, violent or tumultuous,

threatening behavior. We had earlier . . . requested

that the court take out all that language except for

the tumultuous behavior language. Now, I find myself

wondering if the tumultuous behavior has to be tumultuous behavior that actually involved physical violence

or [portended] imminent physical violence . . . [s]o

I’m not [going to] ask that that be removed. It creates

a higher burden for the state . . . [but] I’m . . . worried about being reversed for charging inappropriately.

. . . Does the court understand what I’m saying?

‘‘The Court: I understand exactly what you’re saying,

and . . . if I remember right, we went over this and

agreed that ‘tumultuous’ . . . would remain and everything else would come out.

‘‘[Defense Counsel]: That’s my recollection, Your

Honor. . . .

‘‘[The Prosecutor]: I just ask the court and [defense

counsel] if either of you think that the tumultuous

behavior also has to be tumultuous behavior that actually involved physical violence or [portended] imminent

physical violence. . . . I don’t want to excise something out of the charge that makes the charge bad. . . .

‘‘The Court: Well, I think the actually involved physical violence or [portended] imminent physical violence,

there’s really nothing in the record that would suggest

[the defendant] . . . [was] involved in any physical

violence.

‘‘[Defense Counsel]: I would agree with the court,
Your Honor. . . . [M]y recollection . . . was that [the

prosecutor] had asked for that extra language to be

removed . . . and I had no objection to it being

removed.’’

The court, Russo, J., then instructed the jury as follows: ‘‘Element one, intent. The first element is the

defendant acted with the intent to cause inconvenience,

annoyance or alarm. The predominant intent must be

to cause what a reasonable person operating under

contemporary community standards would consider a

disturbance to or impediment of a lawful activity, a

deep feeling, a vexation or provocation, or a feeling

of anxiety prompted by threatened danger or harm. A

person can also be found guilty of breach of peace if

he recklessly creates a risk of causing inconvenience,

annoyance or alarm so that such person engages in

tumultuous behavior in a public place. A person acts

recklessly with respect to a result or circumstances

when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur

or that such circumstances exist. Element two, conduct.

The second element is the defendant engaged in tumultuous behavior. The defendant’s conduct must be more

than a display of mere bad manners. It must cause or

create a risk of causing inconvenience, annoyance or

alarm among members of the public. Element three,

public place. The third element is that the conduct took

place in a public place. ‘Public place’ means any area

that is used or held out for use by the public whether

owned or operated by public or private interest. Conclusion. In summary, the state must prove beyond a reasonable doubt that the defendant, one, intended to cause

or recklessly created a risk of causing inconvenience,

annoyance or alarm; two, the defendant engaged in

tumultuous behavior; and three, it was in a public

place.’’

We first address the state’s argument that the defendant’s instructional error claim is not reviewable on

appeal. Although the state claims that the defendant

‘‘induced the alleged error or implicitly waived his

unpreserved instructional error claim,’’ it primarily

makes an argument of implicit waiver. Specifically, the

state argues that the defendant implicitly waived his

instructional error claim because ‘‘[he] played an active

role along with the state in limiting the breach of peace

instruction to ‘tumultuous behavior’ and acquiesced to

the trial court’s finding that there was no evidence of

‘physical violence.’ ’’ The state also argues that the

defendant ‘‘not only failed to object to the court’s

instruction as given, despite notice of the charge and

the multiple discussions about it on the record, but also

voiced his agreement with both the instruction as given

and the trial court’s finding that the evidence did not

warrant instruction on the remaining statutory language.’’ (Emphasis omitted.) We agree with the state

that the defendant implicitly waived his claim of instruc-
tional error.

‘‘It is well established . . . that unpreserved claims

of improper jury instructions are reviewable under

[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)] unless they have been

induced or implicitly waived. . . . [W]aiver is an intentional relinquishment or abandonment of a known right

or privilege. . . . It involves the idea of assent, and

assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he

intended the natural consequences of his acts and conduct. . . . In order to waive a claim of law it is not

necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough

if he knows of the existence of the claim and of its

reasonably possible efficacy. . . . Connecticut courts

have consistently held that when a party fails to raise

in the trial court the constitutional claim presented on

appeal and affirmatively acquiesces to the trial court’s

order, that party waives any such claim [under Golding].

. . . Both [our Supreme Court] and [this court] have

found implied waiver on grounds broader than those

required for a finding of induced error. These include

counsel’s failure to take exception or object to the

instructions together with (1) acquiescence in, or

expressed satisfaction with, the instructions following

an opportunity to review them, or (2) references at trial

to the underlying issue consistent with acceptance of

the instructions ultimately given. . . . The rationale for

declining to review jury instruction claims when the

instructional error was induced or the claim was implicitly waived is precisely the same: [T]o allow [a] defendant to seek reversal [after] . . . his trial strategy has

failed would amount to allowing him to . . . ambush

the state [and the trial court] with that claim on appeal.’’

(Citations omitted; internal quotation marks omitted.)

State v. Kitchens, 299 Conn. 447, 468–70, 10 A.3d 942

(2011).

We conclude that the defendant has implicitly waived

his instructional error claim. The record indicates that

defense counsel had an opportunity to review the jury

charge language, and that he acquiesced in the use

of the instructional language at issue. In fact, defense

counsel clearly stated that he had no objection to the

removal of the language now challenged by the defendant, and actually expressed agreement with the court’s

use of that limited language over the state’s suggestion,

in a reconsideration of its prior request, that the language of the statute be used in its entirety. For these

reasons, reviewing the defendant’s claim of instructional error on the merits would be in contravention of

the principle of implicit waiver, as it would allow the

defendant to challenge his failed trial strategy on

appeal. See id., 470. Accordingly, we conclude that this

claim has been implicitly waived.
Having reached this conclusion, we now address the

defendant’s claim that ‘‘the trial court’s jury charge

requires reversal as plain error.’’ In support of his claim

of plain error, the defendant asserts that ‘‘[t]here is a

reasonable possibility that the jury convicted [him] for

‘bad manners’ but not conduct that portended imminent

physical violence.’’ Specifically, the defendant claims

that ‘‘[an] error here is plain upon the face of the record

. . . [because] the jury was left to its own understanding of the word ‘tumultuous’ and was deprived of the

judicial interpretations of the conduct element that are

necessary to prevent arbitrary enforcement of the

breach of [the] peace statute.’’ We disagree.

‘‘An appellate court addressing a claim of plain error

first must determine if the error is indeed plain in the

sense that it is patent [or] readily [discernible] on the

face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error

claim presented in light of the record. Although a complete record and an obvious error are prerequisites for

plain error review, they are not, of themselves, sufficient for its application. . . . [T]he plain error doctrine

is reserved for truly extraordinary situations [in which]

the existence of the error is so obvious that it affects

the fairness and integrity of and public confidence in

the judicial proceedings. . . . [I]n addition to examining the patent nature of the error, the reviewing court

must examine that error for the grievousness of its

consequences in order to determine whether reversal

under the plain error doctrine is appropriate. A party

cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [Previously], [our Supreme Court

has] described the two-pronged nature of the plain error

doctrine: [An appellant] cannot prevail under [the plain

error doctrine] . . . unless he demonstrates that the

claimed error is both so clear and so harmful that a

failure to reverse the judgment would result in manifest

injustice. . . . It is axiomatic that, [t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule

of reversibility. That is, it is a doctrine that this court

invokes in order to rectify a trial court ruling that,

although either not properly reserved or never raised

at all in the trial court, nonetheless requires reversal

of the trial court’s judgment . . . for reasons of policy.

. . . Put another way, plain error review is reserved

for only the most egregious errors. When an error of

such a magnitude exists, it necessitates reversal.’’ (Citations omitted; emphasis in original; footnote omitted;

internal quotation marks omitted.) State v. McClain,

324 Conn. 802, 812–14, 155 A.3d 209 (2017).

We turn to the first prong of the plain error doctrine,

namely, whether the trial court’s decision to remove

language from the conduct element of the breach of
the peace statute in its charge to the jury, is so clear

an error that a failure to reverse the judgment would

result in manifest injustice. See id., 812. The defendant’s

claim in this regard hinges on his assertion that ‘‘[t]here

is a reasonable possibility that the jury convicted [him]

for ‘bad manners’ but not conduct that portended imminent physical violence.’’ Considering the record in its

entirety, we conclude that no such reasonable possibility exists, and that the trial court’s instruction to the

jury does not constitute a clear error. In charging the

jury as to the conduct element of § 53a-181 (a) (1), the

court specifically defined tumultuous as follows: ‘‘The

defendant’s conduct must be more than a display of

mere bad manners. It must cause or create a risk of

causing inconvenience, annoyance or alarm among

members of the public.’’ (Emphasis added.) This language used by the court shows that no clear error exists

with regard to the court’s instructions, as the court

expressly stated that the defendant’s conduct ‘‘must be

more than . . . mere bad manners.’’ Accordingly, we

conclude that the defendant is not entitled to relief

under the doctrine of plain error.

II

The defendant challenges his conviction of assault

of public safety personnel on the following grounds:

the state did not offer sufficient evidence to prove that

Sergeant Christos was acting lawfully in the performance of his official duties, and the court failed to

instruct the jury adequately on the law governing police

discretion to issue and serve a summons on an individual who has not yet been arrested. We address each

claim in turn.

A

We first address the defendant’s claim that the state

did not offer sufficient evidence to prove that Sergeant

Christos was acting lawfully in the performance of his

official duties. Specifically, the defendant claims that

‘‘[i]n the absence of an actual arrest, law enforcement

officers do not have statutory authority to issue a summons,’’ and that ‘‘the police lacked ‘speedy information’

to arrest the defendant for his . . . past behavior.’’

We disagree.

We begin by setting forth the applicable standard of

review. As noted in part I A of this opinion, a two part

test applies to claims of insufficient evidence. First, we

construe the evidence in the light most favorable to

sustaining the verdict. State v. Allen, supra, 289 Conn.

555–56. Second, we determine whether, based upon the

facts so construed and the inferences reasonably drawn

therefrom, the jury reasonably could have concluded

that the evidence before it established guilt beyond a

reasonable doubt. Id., 556. Because such review

involves statutory construction—a question of law—

our review is plenary. State v. Carolina, supra, 143
Conn. App. 443.

The statute at issue—§ 53a-167c (a) (5)—provides in

relevant part: ‘‘A person is guilty of assault of public

safety . . . personnel . . . when, with intent to prevent a reasonably identifiable peace officer . . . from

performing his or her duties, and while such peace

officer . . . is acting in the performance of his or her

duties . . . such person throws or hurls, or causes to

be thrown or hurled, any bodily fluid including . . .

saliva at such peace officer.’’ Accordingly, the defendant’s claim—that the state did not offer sufficient evidence to prove that Sergeant Christos was acting lawfully in the performance of his official duties—focuses

solely on the requirement of § 53a-167c (a) (5) that the

officer must be ‘‘acting in the performance of his or

her duties’’ at the time of the assault. The defendant

claims that the state failed to offer sufficient evidence to

prove that, under the circumstances, Sergeant Christos

had statutory authority to issue a summons to the defendant. Specifically, the defendant cites General Statutes

§§ 54-1h3 and 54-1f4

to support the claim that ‘‘[t]he state

failed to prove that [Sergeant Christos] [was] operating

within [his] legal authority when [he] confronted the

defendant at his home and attempted to serve [the]

. . . summons upon him.’’ Accordingly, the defendant’s

claim can be broken down as follows: Sergeant Christos

lacked authority to serve a summons upon the defendant on the morning of November 9, 2016, and therefore

was not ‘‘acting in the performance of his . . . duties,’’

as is required by § 53a-167c (a) (5). We disagree.

The question of ‘‘[w]hether [an officer] is acting in

the performance of his duty within the meaning of . . .

[§ 53a-167c (a)]5 must be determined in the light of that

purpose and duty. If he is acting under a good faith

belief that he is carrying out that duty, and if his actions

are reasonably designed to that end, he is acting in

the performance of his duties. . . . The phrase in the

performance of his official duties means that the police

officer is simply acting within the scope of what [he]

is employed to do. The test is whether the [police officer] is acting within that compass or is engaging in a

personal frolic of his own. . . . [W]hether the police

officer was acting in the performance of his official

duties or engaging in a personal frolic [are] factual

questions for the jury to determine on the basis of all

the circumstances of the case and under appropriate

instructions from the court.’’ (Citation omitted; footnote

added; internal quotation marks omitted.) State v.

Davis, 261 Conn. 553, 566, 804 A.2d 781 (2002). Accordingly, the question before us is not, as the defendant

suggests, whether Sergeant Christos had the authority

to serve a summons upon the defendant but, rather,

whether Sergeant Christos was ‘‘acting within the scope

of what [he] is employed to do.’’ (Internal quotation

marks omitted.) Id. There is clear evidence in the record

from which the jury reasonably could have concluded
that Sergeant Christos was acting within the scope of

his employment, and was not engaged in a personal

frolic, when he served the summons upon the defendant. Sergeant Christos was on duty and in uniform on

November 9, 2016, and, on the basis of that fact, the

jury reasonably could have concluded that his decision

to accompany Officer Broad to the home of the defendant and to issue the summons himself was made in

his official capacity as a police officer and as Officer

Broad’s supervisor, as Officer Broad was not in uniform,

and Sergeant Christos believed that because he ‘‘would

be readily identifiable as a police officer, there would

be no question as to who was taking the action . . . .’’

For these reasons, we conclude that the state offered

sufficient evidence from which the jury reasonably

could have concluded that Sergeant Christos was acting

within the scope of his employment.

B

We now address the defendant’s final claim—that the

court failed to instruct the jury adequately on the law

governing police discretion to issue and serve a summons on an individual who has not yet been arrested.

Specifically, the defendant claims that ‘‘[t]he trial

court’s failure to respond adequately to the jury’s . . .

request for clarification . . . deprived the defendant

of his right to a fair trial by jury.’’ According to the

defendant, ‘‘the jury needed to be instructed on the

law governing police discretion to issue and serve a

summons [upon] an individual who has not been

arrested first.’’ In response, the state argues that ‘‘the

defendant implicitly waived this instructional error

claim.’’ In the alternative, the state argues that ‘‘the trial

court properly instructed the jury on the elements of

the assault [of a public safety officer] charge.’’

At trial, the court provided the following instruction

to the jury regarding the charge of assault of a public

safety officer: ‘‘Element one, assault of officer. The first

element is that the person allegedly assaulted was a

reasonably identifiable public safety officer. The standard is whether a reasonable person under the same

circumstances should have identified the other person

as a public safety officer. In determining this, such facts

as whether the other person wore a uniform, whether

he identified himself or showed his badge or other identification or the manner in which he acted and conducted himself, are all relevant to your decision of

whether that person was reasonably identifiable as a

public safety officer. It is irrelevant whether the public

safety officer was officially on duty at the time of the

attempted arrest as long as he was identifiable as a

public safety officer. Element two, in the performance

of his duties. The second element is that the conduct

of the defendant occurred while the public safety officer

was acting in the performance of his duties. The phrase

‘in the performance of his official duties,’ means that
the public safety officer was acting within the scope of

what he is employed to do and that his conduct was

related to his official duties. The question of whether

he was acting in good faith in the performance of his

duties, is a factual question for you to determine on

the basis of the evidence in the case. Element three,

intent to prevent the performance of his duties. The

third element is that the defendant had the specific

intent to prevent the public safety officer from performing his lawful duties. A person acts intentionally

with respect to a result, when his conscious objective

is to cause such result. Element four, by certain means.

The fourth element is that the defendant threw or hurled

or caused to be thrown or hurled any bodily fluid,

including but not limited to, saliva, at [Sergeant]

Christos. Conclusion. In summary, the state must prove

beyond a reasonable doubt that, one, the defendant

assaulted a public safety officer; two, in the performance of his duties; three, with the intent to prevent

the performance of his duties; and, four, by means of

throwing or hurling or causing to be thrown or hurled

any bodily fluid, including but not limited to saliva, at

[Sergeant] Christos.’’

During its deliberations, the jury wrote a note

requesting clarification from the court with regard to

the charge of assault of a public safety officer: ‘‘Can

we have clarification as to when an officer’s duties end?

(This in reference to the charge of an assault on an

officer).’’ The court informed both the state and defense

counsel of the existence of the note and, after discussing its contents, all parties agreed that the jury

charge as given by the court could not be expanded

upon or embellished. The court responded to the

request by explaining to the jury: ‘‘The answer lies in

your deliberations. That’s a factual finding that you will

deliberate upon. . . . [T]here are a few things that can

assist you in that; the testimony of the individuals

involved and the court’s jury charge to you. You work

within that framework, within that context, and through

your deliberations you will arrive at an answer to

that question.’’

We first address the state’s argument that the defendant’s instructional error claim is not reviewable on

appeal. Specifically, the state argues that ‘‘[t]he defendant implicitly waived his unpreserved claim that the

court erred by failing to instruct the jury on the speedy

information issue in response to the jury’s note . . .

[because] [he] was clearly on notice of the speedy information issue . . . but chose not to raise that issue in

the context of the court’s instruction on the assault

charge, despite the jury’s note on that specific charge.’’

According to the state, the defendant ‘‘[i]nstead . . .

agreed with the court’s proposed response . . . and

. . . voiced no objection when the court issued its

response.’’ We agree with the state that the defendant

implicitly waived his claim of instructional error.
As set forth in part I C of this opinion, unpreserved

claims of instructional error are reviewable under Golding, unless they have been induced or implicitly waived

by the defendant. State v. Kitchens, supra, 299 Conn.

468. ‘‘Connecticut courts have consistently held that

when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively

acquiesces to the trial court’s order, that party waives

any such claim [under Golding].’’ (Internal quotation

marks omitted.) Id., 469. More specifically, a defendant

has waived his instructional error claim if he has failed

to take exception with or object to the instructions at

issue, and also has acquiesced in the court’s use of the

instructions after having had the opportunity to review

them. Id., 469–70.

In the present case, it is clear that the defendant has

implicitly waived his claim of instructional error. The

record shows that defense counsel had the opportunity

to review the jury instructions, and that he did not

object to them. Furthermore, defense counsel was given

the opportunity to consider the question posited to the

court by the jury, and he clearly acquiesced in the

court’s charge to the jury by agreeing that the instructions already given were sufficient. For these reasons,

we conclude that the defendant has implicitly waived

his instructional error claim.6

Having reached this conclusion, we now turn to the

defendant’s claim that he is entitled to a new trial

because the court’s jury charge requires reversal as

plain error. Specifically, the defendant claims that ‘‘[i]f

the jury had been informed that [the] law of arrest

required the police to apply for a warrant before going

to the defendant’s home to confront him . . . [t]here

is a reasonable possibility that the jury would have

concluded that [Sergeant] Christos, when spat upon,

was not performing his lawful duty and the jury [therefore] would have acquitted.’’

As established in part I C of this opinion, the plain

error doctrine consists of two prongs: ‘‘[An appellant]

cannot prevail under [the plain error doctrine] . . .

unless he demonstrates that the claimed error is both

so clear and so harmful that a failure to reverse the

judgment would result in manifest injustice.’’ (Emphasis in original; internal quotation marks omitted.) State

v. McClain, supra, 324 Conn. 812.

We turn to the first prong of the plain error doctrine,

namely, whether the trial court’s decision not to inform

the jury ‘‘that [the] law of arrest required the police to

apply for a warrant before going to the defendant’s

home to confront him’’ is so clear an error that a failure

to reverse the judgment would result in manifest injustice. See id., 812. The defendant’s claim in this regard

is dependent on his assertion that if the jury was

instructed as to the law of arrest, ‘‘[t]here is a reasonable
possibility that the jury would have concluded that [Sergeant] Christos . . . was not performing his lawful

duty and . . . would have acquitted.’’ Considering the

record in its entirety, we conclude that no such reasonable possibility exists. As we concluded in part II A of

this opinion, whether a police officer has lawful authority to conduct an arrest or serve a summons is irrelevant

to the question of whether that officer is acting in the

performance of his duties. This means that no clear

error occurred because, even if the court had provided

this instruction to the jury, it would not have changed

the question before the jury or the factors that the

jury could consider in determining whether Sergeant

Christos was acting in good faith in the performance

of his duties. Accordingly, we conclude that the defendant is not entitled to relief under the doctrine of

plain error.

The judgments are affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is

guilty of breach of the peace in the second degree when, with intent to

cause inconvenience, annoyance or alarm, or recklessly creating a risk

thereof, such person: (1) Engages in fighting or in violent, tumultuous or

threatening behavior in a public place . . . .’’

2 Although Indrisano and Szymkiewicz both involve charges of disorderly

conduct, as opposed to charges of breach of the peace, they are still applicable to the present case because ‘‘[t]he elements of the two statutes are

identical, except that § 53a-181 (a) (1) . . . concerns behavior in a public

place.’’ State v. Szymkiewicz, supra, 237 Conn. 618.

3 The specific language of the statute on which the defendant relies is: ‘‘Any

person who has been arrested with or without a warrant for commission

of a misdemeanor . . . may, in the discretion of the arresting officer, be

issued a written complaint and summons and be released on his written

promise to appear on a date and time specified.’’ General Statutes § 54-1h.

The defendant also cites Practice Book § 36-4 (Direction by Judicial Authority for Use of Summons) and Practice Book § 36-8 (Issuance of Summons

by Prosecuting Authority in Lieu of Arrest Warrant) in support of this claim.

4 General Statutes § 54-1f (a) provides in relevant part: ‘‘Peace officers

. . . shall arrest, without previous complaint and warrant, any person for

any offense in their jurisdiction, when the person is taken or apprehended

. . . on the speedy information of others . . . .’’

5 Although our Supreme Court, in setting forth this standard, was referring

to General Statutes § 53a-167a (a); State v. Davis, 261 Conn. 553, 566, 804

A.2d 781 (2002); its analysis is equally applicable to § 53a-167c (a). See

id., 567.

6 Notwithstanding this conclusion, even if the defendant’s claim of instructional error was reviewable on the merits, it did not warrant a reversal of

the judgment of the trial court because there is virtually no possibility that

the jury was misled by the instruction at issue.