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STATE OF CONNECTICUT v. JAMES P.

CARTER, JR.

(AC 35511)

Bear, Keller and Pellegrino, Js.*

Argued February 20—officially released July 15, 2014

(Appeal from Superior Court, judicial district of New

Britain, D’Addabbo, J.)

Glenn W. Falk, assigned counsel, for the appellant

(defendant).

Margaret Gaffney Radionovas, senior assistant

state’s attorney, with whom, on the brief, were Brian

Preleski, state’s attorney, and Paul N. Rotiroti, senior
assistant state’s attorney, for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, James P. Carter, Jr.,

appeals from the judgment of conviction,rendered after

a jury trial, of murder pursuant to General Statutes

§ 53a-54a, and criminal violation of a restraining order

pursuant to General Statutes § 53a-223b. The defendant

claims that his conviction of criminal violation of a

restraining order was improper because the state provided insufficient evidence to prove that a restraining

order was in effect on the date in question that prohibited him from assaulting the victim, Tiana Notice. We

disagree and affirm the judgment.

The jury reasonably could have found the following

facts. The defendant dated the victim for approximately

one year before their relationship ended in early January, 2009. After the relationship ended, the defendant

continued to contact the victim via text messages, telephone calls, and e-mails. On January 8, 2009, the court

granted the victim’s petition for an ex parte restraining

order. The restraining order stated, inter alia, that the

defendant ‘‘shall refrain from threatening, harassing,

stalking, assaulting, molesting, sexually assaulting or

attacking the [victim].’’ The order also stated: ‘‘An ex

parte restraining order is only effective until the date

of the [scheduled] hearing unless extended by

agreement of the parties or by order of the court for

good cause shown. A restraining order after hearing

remains effective for six months from the date of the

order unless a shorter period is ordered by the court.’’

The court scheduled a hearing to take place on January

16, 2009. On February 14, 2009, the defendant stabbed

the victim eighteen times, piercing her heart and eventually killing her.

At trial, the state presented the ex parte restraining

order as evidence that the defendant was guilty of criminal violation of a restraining order. Attorney Patricia

Lindlauf, the deputy chief clerk of the New Britain judicial district, testified that Judge Prestley issued the ex

parte order on January 8, 2009. She also testified that

the ex parte order prohibited the defendant from

assaulting the victim and that the order was ‘‘in effect.’’

The state did not attempt to enter into evidence a

restraining order issued after January 16, 2009, the date

of the scheduled hearing and the date that the ex parte

order was set to expire.

The defendant’s statements and the victim’s actions

after January 16, 2009, however, demonstrated that a

restraining order had been issued after the scheduled

hearing. On the day of the murder, the victim brought

two e-mails to the police that the defendant had sent

her on February 13, 2009. In one of the defendant’s

e-mails to the victim, he stated: ‘‘Please don’t tell the

cops about this . . . . Please . . . get rid of the

restraining order so I can get this job, hire me a lawyer
[and] see what’s going on with my son. I’m extremely

nervous. You know I’m taking a big risk by talking to

you.’’ On February 14, 2009, the date of the murder,

Officer Mark Connoy of the Plainville Police Department called the defendant to investigate the e-mail.

Connoy stated to the defendant that he was investigating e-mails ‘‘sent to a certain person that aren’t supposed to be sent.’’ The defendant told Connoy that he

did not send any e-mails to the victim because ‘‘we have

a restraining order against each other [and] I can’t send

her anything.’’ After Connoy indicated that he was going

to continue his investigation into the source of the

e-mails,1the defendant ended the conversation by commenting: ‘‘I would never violate the restraining order.

I know that there’s [a] full restraining order and . . .

I’ve moved on.’’2 This conversation took place less than

two hours before the victim was stabbed. Additionally,

on the basis of the form that the court used to issue

the ex parte order on January 8, 2009, which was a full

restraining order that was admitted as a full exhibit,

the jury reasonably could have found that the

restraining order after hearing—the existence of which

was admitted by the defendant—included a prohibition

against assaulting the victim because the same form is

used both for ex parte restraining orders and for a

restraining order after hearing.3

After the state concluded its presentation of the evidence, the defendant moved for a judgment of acquittal,

arguing that the ex parte restraining order had expired

on January 16, 2009, and that the state had not proven

beyond a reasonable doubt that there was a restraining

order in effect on February 14, 2009. The court denied

the motion on the basis of Lindlauf’s testimony that a

restraining order was ‘‘in effect,’’ and the testimony

of Corporal Patrick J. Buden of the Plainville Police

Department that he identified the defendant by searching the police restraining order database.4 After the

defendant finished his presentation of the evidence, he

renewed his motion for a judgment of acquittal. The

court denied the motion on the same ground.5 The jury

found the defendant guilty of murder and violating a

restraining order. This appeal followed.6

On appeal, the defendant claims that there was insufficient evidence to convict him of violating a restraining

order because the relevant order was not entered into

evidence. He initially argues that there was insufficient

evidence to prove that a restraining order was in effect

on the date of the murder. He then argues that there

was insufficient evidence to prove the terms of any

purported restraining order. Specifically, the defendant

argues that the terms of the ex parte restraining order

are an insufficient basis from which the jury may infer

the terms of a posthearing order, and, therefore, the

evidence was insufficient for the jury to find that he

violated a restraining order.
‘‘The standard ofreview we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal 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 [finder of fact] reasonably could have concluded

that the cumulative force of the evidence established

guilt beyond a reasonable doubt.’’ (Internal quotation

marks omitted.) State v. Hasfal, 94 Conn. App. 741, 743,

894 A.2d 372 (2006). ‘‘[I]n [our] process of review, it

does not diminish the probative force of the evidence

that it consists, in whole or in part, of evidence that is

circumstantial rather than direct.’’ (Internal quotation

marks omitted.) State v. Fagan, 280 Conn. 69, 80, 905

A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct.

1491, 167 L. Ed. 2d 236 (2007).

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

beyond a reasonable doubt in order to find the defendant guilty of the charged offense . . . .’’ (Internal quotation marks omitted.) State v. Hasfal, supra, 94 Conn.

App. 744. ‘‘[P]roof beyond a reasonable doubt does not

mean proof beyond all possible doubt . . . nor does

proof beyond a reasonable doubt require acceptance

of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would

have resulted in acquittal. . . . 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.

Fagan, supra, 280 Conn. 80.

‘‘It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . .

The jury may draw reasonable inferences based on

other inferences drawn from the evidence presented.’’

(Internal quotation marks omitted.) State v. Winter, 117

Conn. App. 493, 507, 979 A.2d 608 (2009), cert. denied,

295 Conn. 922, 991 A.2d 569 (2010). ‘‘[I]n viewing evidence which could yield contrary inferences, the [trier

of fact] is not barred from drawing those inferences

consistent with guilt and is not required to draw only

those inferences consistent with innocence. The rule

is that the [trier of fact’s] function is to draw whatever

inferences from evidence or facts established by the

evidence it deems to be reasonable and logical.’’ (Internal quotation marks omitted.) State v. Larsen, 117Conn.

App. 202, 207, 978 A.2d 544, cert. denied, 294 Conn. 919,

984 A.2d 68 (2009). ‘‘Our review is a fact based inquiry

limited to determining whether the inferences drawn

by the jury are so unreasonable as to be unjustifiable.

. . . [W]e do not sit as a [thirteenth] juror who may

cast a vote against the verdict based upon our feeling
that some doubt of guilt is shown by the cold printed

record.’’ (Citation omitted; internal quotation marks

omitted.) State v. Winter, supra, 507.

The jury found the defendant guilty of violating a

restraining order by assaulting the victim. ‘‘[T]he violation of a protective order statute is not a specific intent

crime. All that is necessary is a general intent that the

defendant intended to perform the activities that constituted the violation.’’ (Footnote omitted.) State v.

Larsen, supra, 117 Conn. App. 208. In order to find the

defendant guilty, the jury was required to find beyond

a reasonable doubt that: (1) a restraining order was

issued against the defendant; (2) the defendant had

knowledge of the terms of the order; (3) the defendant

committed an assault against the person protected by

the order; and (4)the assault violated the order. General

Statutes § 53a-223b (a) (1) (A) and (2) (D). The defendant does not argue that there was insufficient evidence

that he assaulted the victim; he argues that the evidence

was insufficient as to the remaining elements. We conclude that the state adduced sufficient evidence at trial

for the jury to find the defendant guilty.

There was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that a restraining

order was issued against the defendant and that the

defendant had knowledge of the terms of the order. In

an e-mail to the victim on the day before the murder,

the defendant acknowledged the existence of the

restraining order and asked the victim to have it lifted.

More importantly, the jury listened to the defendant’s

conversation with Connoy that took place less than two

hours before the murder. During Connoy’s conversation

with the defendant, he admitted that the victim had a

restraining order against him. The defendant stated that

‘‘[the victim and I] have a restraining order against each

other,’’ and ‘‘I know there’s [a] full restraining order

. . . .’’

In addition to the evidence of the defendant’s subjective belief, there also was other independent evidence

that a restraining order was in effect. During the conversation that took place two hours before the murder,

Connoy stated that he was investigating e-mails ‘‘sent

to a certain person that aren’t supposed to be sent.’’

The jury reasonably could have inferred that Connoy

stated that the e-mails should not have been sent

because there was a restraining order in place at the

time. Furthermore, as part of responding to the victim’s

911 call, police were able to determine the defendant’s

identity by searching records of domestic situations

and restraining orders. See footnote 4 of this opinion.

The jury reasonably could have found that the cumulative effect of this independent evidence, coupled with

the defendant’s admission that a restraining order was

in effect, amounted to proof beyond a reasonable doubt

that a restraining order was in effect on the date of
the murder.

Not only did the defendant admit, less than two hours

before the murder, that there was a valid restraining

order in place, he also admitted that he had knowledge

of the terms of that order. The defendant told Connoy

that, pursuant to the restraining order, ‘‘I can’t send her

anything.’’ He also stated, ‘‘I would never violate the

restraining order,’’ from which the jury reasonably

could infer that he knew the terms of the restraining

order and how to comply with them. On the basis of the

defendant’s admissions during his conversation with

Connoy, we conclude that there was sufficient evidence

for the jury to find that the defendant was aware of

the restraining order’s terms, including the prohibition

against assaulting the victim.

The ex parte restraining order, which was entered

into evidence, prohibited the defendant from, inter alia,

assaulting the victim. The state argues that the ex parte

restraining order provides a reasonable basis for the

jury to inferthat assaulting the victim violated the terms

of the restraining order in effect at the time of the

murder. The issue before us is whether this inference

was so unreasonable as to be unjustifiable. State v.

Winter, supra, 117 Conn. App. 507. We conclude that

it was not.

The terms of the ex parte restraining order provided

a reasonable basis for inferring that a prohibition on

assaulting the victim was a term of the subsequent

restraining order.7 The victim initially petitioned the

court for an ex parte restraining order because the

defendant continued to contact her via text messages,

telephone calls, and e-mails after their relationship

ended. The court granted the ex parte petition and

ordered the defendant to refrain from contacting or

assaulting the victim. The state introduced evidence,

however, that an e-mail from ‘‘Jessica Banderas’’ was

sent to the victim from the defendant’s computer on

January 10, 2009, and that ‘‘Jessica Banderas’’ did not

exist. The reasonable inference to be drawn from this

evidence is that the defendant continued to contact

the victim despite the ex parte restraining order and

attempted to conceal his identity to avoid being charged

with violating the restraining order.

Viewing these facts in a light most favorable to sustaining the verdict, as we must, the jury reasonably

could have concluded that the subsequent restraining

order prohibited the defendant from assaulting the victim. The conduct that gave rise to the ex parte

restraining order—unwanted communications via telephone and e-mail—continued after the ex parte order

was issued. Because the defendant continued to engage

in the same conduct that originally resulted in the ex

parte court order, which was a full restraining order,8

it is reasonable to assume that continuing to engage in

the same conduct would result in the court’s imposing
the same terms in a subsequent restraining order,

including a prohibition on assaulting the victim.

At oral argument before this court, the defendant

argued, by way of analogy to the best evidence rule,

that the state must enter the relevant restraining order

into evidence in order to convict him of violating that

order. The best evidence rule states: ‘‘[I]n proving the

terms of a writing, where the terms are material, the

original writing must be produced unless it is shown

to be unavailable for some reason otherthan the serious

fault of the proponent.’’ (Internal quotation marks omitted.) Brookfield v. Candlewood Shores Estates, Inc.,

201 Conn. 1, 10, 513 A.2d 1218 (1986). The purpose of

this rule is not to exclude evidence, but instead to

express the court’s preference for admitting an original

document into evidence when the document’s terms

are at issue. Id., 12. Although the best evidence rule is

not dispositive in this case, we acknowledge that it

would have been preferable for the state to enter the

operative restraining order into evidence. The fact that

the state failed to do so, however, does not make its

evidence automatically insufficient. Even though the

state’s evidence that the defendant violated the terms

of the restraining order was circumstantial, that does

not diminish its probative force or the reasonableness

of the inference that the subsequent restraining order

also prohibited the defendant from assaulting the

victim.

The jury reasonably and justifiably could have concluded that the terms of the subsequent restraining

order were the same as those in the ex parte order

and, therefore, included a prohibition on assaulting the

victim. It would have been unreasonable, in light of the

evidence that tended to show that the defendant did

not comply with the ex parte order, to infer that the

court would have originally ordered the defendant to

refrain from assaulting the victim but then, in a subsequentrestraining order, not prohibit the defendant from

doing so.9 The jury reasonably could have found that

the terms of the restraining order in effect at the time

of the murder were substantially the same as the terms

of the ex parte restraining order. See State v. Taylor,

306 Conn. 426, 436, 50 A.3d 862 (2012). We therefore

conclude that there was sufficient evidence adduced at

trial for the jury to find beyond a reasonable doubt that

assaulting the victim violated the terms of the

restraining order in effect on the day of the murder.

After consideration of the defendant’s arguments on

appeal, we note that he did not raise any objection

before the trial court that the ex parte order was irrelevant to proving the terms of a subsequent restraining

order. He also did not cross-examine Lindlauf to clarify

whether she was testifying to the terms of a posthearing

restraining order that was not in evidence, and, if so,

then object to her testimony on the basis of the best
evidence rule. The defendant thus allowed the state to

admit the ex parte order into evidence without objection. The evidence before the jury was sufficient for it

to find the defendant guilty of criminal violation of a

restraining order beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

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

the date of oral argument.

1 The defendant suggested to Connoy during this conversation that ‘‘Jessica Banderas,’’ a love interest who harbored ill will against the victim, may

have sent the e-mail in question. The police determined that ‘‘Banderas’’ did

not exist on the basis of the information that the defendant provided.

2 The ex parte order was a ‘‘full’’ restraining order because of numerous

prohibitions designed to prevent the defendant from having contact in any

manner with the victim.

3 The official form used for the ex parte restraining order in this case was

form JD-FM-139. That form is used both for an ex parte restraining order

and for a restraining order after hearing. The form sets forth each of those

choices with a box to be checked to designate which type of order is being

entered. In the middle of the first page of the form under the heading,

‘‘RESTRAINING ORDER—RELIEF FROM ABUSE,’’ is the clause, ‘‘ON THIS

DATE IT IS HEREBY ORDERED THAT . . . .’’ One of the choices is that

the ‘‘[r]espondent shall refrain from . . . assaulting . . . the Protected Person.’’ On page two of the form is the statement: ‘‘A RESTRAINING ORDER

AFTER HEARING remains effective for six months from the date of the

order unless a shorter period is ordered by the court.’’

4 Corporal Buden testified that on February 14, 2009, the victim called

911 and stated that her former boyfriend had stabbed her. Buden testified

that, as part of responding to the call, he ‘‘researched [the police department’s] in-house records’’ regarding domestic situations and restraining

orders and was able to determine the identity of the victim’s former boyfriend

because he ‘‘found the name on . . . reports from past dealings.’’

5

In doing so, the court recounted Lindlauf’s testimony: ‘‘[T]he jury can

reject [her testimony], but Ms. Lindlauf says—I had the court monitor play

it back for me—that she said there was a restraining order existing at the

time. Now, is that the clearest? No. But it’s subject to legal inference—some

logical inferences that can be drawn by a jury in making that determination.

So, for that reason the court will deny . . . [the] request for judgment

of acquittal.’’

6 The court sentenced the defendant to sixty years of incarceration for

the murder conviction and five years of incarceration for violation of the

restraining order. The sentences were to run concurrently. Although the

defendant received concurrent sentences, his appeal is not moot because

‘‘[t]he collateral consequences of a conviction are legion: subsequent convictions might, as a result, carry heavier penalties and a wide range of civil

rights might be affected . . . .’’ Barlow v. Lopes, 201 Conn. 103, 112–13,

513 A.2d 132 (1986).

7 See footnote 3 of this opinion.

8 See footnote 2 of this opinion.

9 The prohibition against assaulting the victim would have been included

whether the order was a partial or full restraining order.