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*********************************************** 
STATE OF CONNECTICUT v. KERLYN M. TAVERAS

(SC 20496)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Keller, Js.

Syllabus

The defendant appealed from the judgments of the trial court revoking his

probation. The defendant previously had pleaded guilty to various crimes

and received a sentence of imprisonment followed by a term of probation. The conditions of the defendant’s probation prohibited him from

violating any state or federal criminal law. While the defendant was

serving his term of probation, he precipitated an incident at his son’s

preschool. On the day of the incident, B, the preschool’s director,

received a call from her staff informing her that the defendant was late

in picking up his son. B’s staff members reported that the defendant

arrived in an escalated emotional state and began arguing with them.

C, one of the staff members, said something to the defendant as he was

exiting the preschool with his son, and, according to an affidavit from

the defendant’s probation officer, the defendant said to C, ‘‘you better

watch your back.’’ The defendant tried to get back in the door but

was unable to, and then left the preschool. After the state charged the

defendant with violating the terms of his probation, the trial court held

an evidentiary hearing. The court found, by a preponderance of the

evidence, that the state met its burden of proving that the defendant

had violated the terms of his probation by committing breach of the

peace in the second degree. The court specifically found that the defendant had exhibited a threatening nature and demeanor, and that his

conduct caused B to call the police. Accordingly, the court rendered

judgments revoking the defendant’s probation. On appeal to the Appellate Court, the defendant claimed that his remarks were protected by

the first amendment to the United States constitution. The Appellate

Court agreed with the defendant and reversed the judgments of the trial

court, reasoning that the defendant’s remarks had not conveyed an

explicit threat and that the state had failed to provide sufficient context

to resolve the resulting ambiguity. The state, on the granting of certification, appealed to this court. Held that the Appellate Court incorrectly

determined that the defendant’s remarks warranted first amendment

protection, as the defendant’s statements and demeanor, as well as

the surrounding context, were sufficient to support a finding that the

defendant’s remarks constituted true threats: although the phrase ‘‘you

better watch your back’’ can be used to caution an addressee of an

external threat, it can also be used as a veiled or conditional threat of

violence, the record did not suggest that the defendant’s remarks were

intended to convey the former sentiment, and the defendant’s history

at the preschool, his demeanor during the incident in question, and the

subsequent reactions of the preschool staff appeared objectively to

indicate the threat of the possibility of violence; moreover, B stated

that the defendant had previously caused escalated interactions at the

preschool and that she previously had seen the defendant act in a

threatening manner, and the fact that preschool employees notified B

of the defendant’s late arrival before it occurred and that B immediately

returned to the preschool because she knew things would escalate

indicated that the defendant had made his remarks in the context of

an existing hostile relationship; furthermore, B testified that, when she

arrived at the preschool shortly after the incident, the staff was shaken

up and concerned by what had transpired, B immediately contacted the

police, formally prohibited the defendant from reentering the preschool,

began to pursue a restraining order, and hired a police office for additional security the following day, all of which reasonably suggested a

specific fear of physical violence; accordingly, this court reversed the

judgment of the Appellate Court and remanded the case for the Appellate

Court to consider the defendant’s remaining appellate claims.

Argued November 16, 2021—officially released March 29, 2022
Procedural History

Three substitute informations charging the defendant

with violation of probation, brought to the Superior

Court in the judicial district of Danbury, geographical

area number three, where the cases were consolidated

and tried to the court, Russo, J.; judgments revoking

the defendant’s probation, from which the defendant

appealed to the Appellate Court, Sheldon and Eveleigh,

Js., with Elgo, J., dissenting, which reversed the trial

court’s judgments and remanded the cases with direction to render judgments for the defendant, and the

state, on the granting of certification, appealed to this

court. Reversed; further proceedings.

Mitchell S. Brody, senior assistant state’s attorney,

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

III and Sharmese L. Walcott, state’s attorneys, for the

appellant (state).

James B. Streeto, senior assistant public defender,

for the appellee (defendant).
Opinion

KAHN, J. The principal issue in this case is whether

the first amendment to the United States constitution

protects certain allegedly threatening remarks made by

the defendant, Kerlyn M. Taveras, to the employees of

his son’s preschool in Danbury. In this certified appeal,

the state claims that the Appellate Court incorrectly

concluded that the evidence contained in the record

precluded application of the true threats exception and,

as a result, improperly reversed the judgments of the

trial court revoking the defendant’s probation pursuant

to General Statutes § 53a-32 on the basis of that evidence. The defendant, in response, argues that the

Appellate Court’s analysis on the point was sound, and

that his conduct on the day of the incident in question

warrants first amendment protection. For the reasons

that follow, we agree with the state and, accordingly,

reverse the judgment of the Appellate Court.

The following evidence, adduced at the defendant’s

probation revocation hearing, and procedural history

are relevant to our consideration of this appeal. The

record establishes that the defendant had been previously charged with, and pleaded guilty to, the following offenses in three separate criminal cases: (1)

threatening in the second degree in violation of General

Statutes § 53a-62 (a) (3) in connection with an incident

that occurred on or about September 17, 2009; (2)

assault in the third degree in violation of General Statutes § 53a-61 (a) (1) in connection with an incident that

occurred on or about June 30, 2011; and (3) threatening

in the second degree in violation of § 53a-62 (a) (3) in

connection with an incident that occurred on or about

July 28, 2011. The trial court accepted those pleas and,

on August 22, 2012, imposed a total effective sentence

on those charges of three years of incarceration, execution suspended after twelve months, followed by three

years of probation.1 The defendant’s term of probation

on these charges began on July 1, 2013. On August 28,

2012, and then again on April 25, 2013, the defendant

agreed to the standard conditions of probation set forth

on Judicial Branch Form JD-AP-110. Those conditions

expressly prohibited the defendant from, among other

things, ‘‘violat[ing] any criminal law of the United States,

this state or any other state or territory.’’

On March 11, 2014, approximately eight months into

his term of probation, the defendant precipitated an

incident at his son’s preschool in Danbury. The evidence

contained in the record about that event comes almost

exclusively from two distinct sources: (1) testimony

from the preschool’s director, Monica Bevilaqua; and

(2) an affidavit from the defendant’s probation officer,

Christopher Kelly, dated April 17, 2014, requesting the

issuance of a warrant for a violation of the defendant’s

probation.2 We review these two accounts in turn.
First, Bevilaqua testified that the defendant’s son was

one of about four hundred students enrolled at the

preschool and that his child’s scheduled hours were

8:30 a.m. to 4 p.m. Shortly after 4 p.m. on March 11,

2014, Bevilaqua, who was not then physically present

at the preschool, received a call from her staff informing

her that the defendant was late for pickup. Pursuant

to standard policy, preschool staff had reached out to

the defendant by phone to ask where he was. Bevilaqua

testified that the defendant was ‘‘not happy’’ about this

call but that he had, nonetheless, told staff that he was

on his way.

According to reports from Bevilaqua’s staff, the

defendant eventually arrived at the preschool at approximately 4:40 p.m. in an ‘‘already escalated’’ emotional

state, went down to his child’s classroom, and then

began arguing with staff on his way out. Sondra Cherney, the preschool’s assistant education manager, then

said something to the defendant as he was exiting the

preschool through a set of locked doors. Bevilaqua testified that, in response to Cherney’s comment, the defendant turned around and said, ‘‘you better watch

yourself, you better be careful . . . .’’ Bevilaqua indicated that the defendant then ‘‘tried to get back in the

door and couldn’t, and then he left.’’

Other portions of Bevilaqua’s testimony provide the

following additional factual context. Bevilaqua indicated that this situation was not the staff’s first ‘‘escalated interaction’’ with the defendant. Although the details

of these previous interactions were not expressly drawn

out at the hearing, Bevilaqua clearly testified that she

herself had previously witnessed the defendant acting

in a threatening manner. Indeed, Bevilaqua stated that

she made the decision to return to the preschool as

soon as she heard that the defendant was going to be

late because she ‘‘knew it would get escalated.’’ When

she got to the preschool, she found that members of her

staff were ‘‘shaken up’’ and ‘‘concerned’’ by what had

transpired. Bevilaqua also stated that, in order to protect those at the preschool, she immediately contacted

the police, formally prohibited the defendant from reentering the preschool, began pursuing a restraining order,

and hired a police officer for additional security the

following day.

Kelly’s affidavit provides the following similar account

of events: ‘‘[On March 11, 2014, police officers were]

dispatched to [a preschool for] a dispute involving [the

defendant]. [The defendant] was forty minutes late picking up his child . . . and [was] . . . reminded . . .

that he needed to pick his child up on time. [The defendant] became extremely agitated and began to argue

with staff. Staff told [the defendant] that he had to leave

because he was arguing with staff in the front lobby in

front of other children and their parents. [The defendant] then yelled to the staff ‘you better watch your
back.’ Staff reported . . . that [the defendant] was so

enraged and intimidating that the school hired a police

officer for security the next morning in the event [the

defendant] came back. [The defendant] agreed to meet

[police officers] the next morning and was arrested for

breach of [the] peace. [The defendant] was advised not

to return to the school again, otherwise he would be

arrested for criminal [t]respass.’’

The state subsequently sought revocation of the defendant’s probation as a result of the defendant’s conduct

on March 11, 2014.3 During the hearing that followed,

the state proceeded on the theory that the foregoing

testimony and evidence were sufficient to prove that

the defendant had violated the terms of his probation

by committing breach of the peace in the second degree,

in violation of General Statutes § 53a-181 (a).4

On the basis of this testimony, the trial court found

that the state had met its burden of proving, by a preponderance of the evidence, that the defendant had violated

the standard terms of his probation by violating § 53a181 (a). In ruling in favor of the state on the adjudicatory

phase of the proceeding, the trial court explicitly found

that the defendant had exhibited a ‘‘threatening nature

and demeanor’’ and that his conduct had caused Bevilaqua to contact the police. In its ruling, the trial court

acknowledged, and implicitly rejected, defense counsel’s argument that the facts of the present case demonstrated nothing more than that ‘‘[a person] being upset

with the way [a] daycare . . . handles [his] child

. . . .’’ After the dispositional phase of the hearing, the

trial court rendered judgments revoking the defendant’s

various terms of probation and sentenced him to a total

effective term of eighteen months of incarceration.

The defendant then appealed from the trial court’s

judgments to the Appellate Court, claiming, inter alia,

that the evidence presented at his probation revocation

hearing was insufficient to support a finding that he

had violated the terms of his probation. State v. Taveras,

183 Conn. App. 354, 357, 193 A.3d 561 (2018). Specifically, the defendant argued that the state’s evidence was

insufficient to establish that his remarks constituted

a true threat and, therefore, that they warranted first

amendment protection. Id., 357–58. The Appellate Court,

in a split decision, agreed with the defendant and reversed

the judgments of the trial court, reasoning that the

defendant’s remarks did not convey an explicit threat

and that the state had failed to provide sufficient context to resolve the resulting ambiguity. See id., 380–81.

Judge Elgo authored a dissent in which she concluded

that, in light of the lower standard of proof applicable

to probation proceedings, there was sufficient evidence

to support the trial court’s revocation of the defendant’s

probation. Id., 387–88. This certified appeal followed.5

The standard of review and constitutional principles

governing our review of the Appellate Court’s true threats
analysis are well established. ‘‘The [f]irst [a]mendment,

applicable to the [s]tates through the [f]ourteenth

[a]mendment, provides that Congress shall make no law

. . . abridging the freedom of speech. The hallmark of

the protection of free speech is to allow free trade in

ideas—even ideas that the overwhelming majority of

people might find distasteful or discomforting. . . .

Thus, the [f]irst [a]mendment ordinarily denies a [s]tate

the power to prohibit dissemination of social, economic

and political doctrine [that] a vast majority of its citizens

believes to be false and fraught with evil consequence

. . . .

‘‘The protections afforded by the [f]irst [a]mendment,

however, are not absolute, and we have long recognized

that the government may regulate certain categories of

expression consistent with the [c]onstitution. . . . The

[f]irst [a]mendment permits restrictions [on] the content of speech in a few limited areas, which are of such

slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed

by the social interest in order and morality. . . .

‘‘The first amendment permits states to restrict true

threats, which encompass those statements [through

which] the speaker means to communicate a serious

expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry

out the threat. Rather, a prohibition on true threats

protect[s] individuals from the fear of violence and from

the disruption that fear engenders, in addition to protecting people from the possibility that the threatened

violence will occur. . . .

‘‘Thus, we must distinguish between true threats,

which, because of their lack of communicative value,

are not protected by the first amendment, and those

statements that seek to communicate a belief or idea,

such as political hyperbole or a mere joke, which are

protected. . . . In the context of a threat of physical

violence, [w]hether a particular statement may properly

be considered to be a [true] threat is governed by an

objective standard—whether a reasonable person would

foresee that the statement would be interpreted by

those to whom the maker communicates the statement

as a serious expression of intent to harm or assault. . . .

[A]lleged threats should be considered in light of their

entire factual context, including the surrounding events

and reaction of the listeners. . . .

‘‘[T]o ensure that only serious expressions of an

intention to commit an act of unlawful violence are

punished, as the first amendment requires, the state

. . . must do more than demonstrate that a statement

could be interpreted as a threat. When . . . a statement

is susceptible of varying interpretations, at least one of

which is nonthreatening, the proper standard to apply

is whether an objective listener would readily interpret
the statement as a real or true threat; nothing less is

sufficient to safeguard the constitutional guarantee of

freedom of expression. To meet this standard [the state

is] required to present evidence demonstrating that a

reasonable listener, familiar with the entire factual context of the defendant’s statements, would be highly

likely to interpret them as communicating a genuine

threat of violence rather than protected expression,

however offensive or repugnant.’’ (Citations omitted;

emphasis altered; footnote omitted; internal quotation

marks omitted.) Haughwout v. Tordenti, 332 Conn. 559,

570–72, 211 A.3d 1 (2019); see also State v. Taupier,

330 Conn. 149, 193–94, 193 A.3d 1 (2018), cert. denied,

U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).

‘‘In determining whether the trial court properly found

that the defendant’s statements and gestures were true

threats, we recognize that, although we ordinarily

review findings of fact for clear error, [i]n certain first

amendment contexts . . . appellate courts are bound

to apply a de novo standard of review. . . . [In such

cases] the inquiry into the protected status of . . .

speech is one of law, not fact. . . . As such, an appellate court is compelled to examine for [itself] the . . .

statements [at] issue and the circumstances under

which they [were] made to [determine] whether . . .

they . . . are of a character [that] the principles of the

[f]irst [a]mendment . . . protect. . . . [I]n cases raising [f]irst [a]mendment issues [the United States

Supreme Court has] repeatedly held that an appellate

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

the judgment does not constitute a forbidden intrusion

[in] the field of free expression. . . . This rule of independent review was forged in recognition that a

[reviewing] [c]ourt’s duty is not limited to the elaboration of constitutional principles . . . . [Rather, an

appellate court] must also in proper cases review the

evidence to make certain that those principles have

been constitutionally applied. . . . Therefore, even

though, ordinarily . . . [f]indings of fact . . . shall not

be set aside unless clearly erroneous, [appellate courts]

are obliged to [perform] a fresh examination of crucial

facts under the rule of independent review. . . . We

emphasize, however, that the heightened scrutiny that

this court applies in first amendment cases does not

authorize us to make credibility determinations regarding disputed issues of fact. Although we review de novo

the trier of fact’s ultimate determination that the statements at issue constituted a true threat, we accept all

subsidiary credibility determinations and findings that

are not clearly erroneous.’’ (Citations omitted; internal

quotation marks omitted.) Haughwout v. Tordenti,

supra, 332 Conn. 572–73. The defendant concedes that,

because he is charged with a violation of probation, a

preponderance of the evidence standard governed the

trial court’s findings of historical fact. See, e.g., State
v. Davis, 229 Conn. 285, 290–91, 641 A.2d 370 (1994);

see also Haughwout v. Tordenti, supra, 586 n.20 (conducting true threats analysis within context of ‘‘record

as reflected by the lower burden of proof in civil cases’’).

Our independent examination of the present case is

guided, in particular, by this court’s decision in State

v. Krijger, 313 Conn. 434, 97 A.3d 946 (2014). The defendant in that case had been engaged in a long-standing

zoning dispute with the town of Waterford. Id., 436,

438. Although the defendant had been ‘‘pleasant and

cooperative’’ with the town’s attorney on dozens of

previous occasions, he became upset after a particular

court hearing, followed the town’s attorney out of the

courthouse, and began yelling. (Internal quotation

marks omitted.) Id., 438–40. The defendant told the

attorney that ‘‘[m]ore of what happened to your son is

going to happen to you’’ and that he was ‘‘going to be

there to watch it happen.’’ (Internal quotation marks

omitted.) Id., 440. The attorney, whose son had been

injured in a highly publicized car accident, responded

by calling the defendant ‘‘a piece of shit’’ and eventually

walked away. (Internal quotation marks omitted.) Id.,

440–41 and n.6. Before the attorney reached his car, he

was approached once again by the defendant, who then

apologized for his outburst. Id., 442. Although the attorney did not initially perceive the defendant’s comments

as a threat, he eventually filed a complaint with the

police department two days later. Id. The defendant was

later charged with threatening in the second degree. Id.

We began our examination of the first amendment

issue in Krijger by recognizing that the ‘‘absence of

explicitly threatening language [did] not preclude the

finding of a threat . . . .’’ (Internal quotation marks

omitted.) Id., 453; see Planned Parenthood of the

Columbia/Willamette, Inc. v. American Coalition of

Life Activists, 290 F.3d 1058, 1078–79 (9th Cir. 2002)

(‘‘context is critical in a true threats case . . . because

without context, a burning cross or dead rat mean nothing’’ (citation omitted; footnotes omitted)), cert. denied,

539 U.S. 958, 123 S. Ct. 2637, 156 L. Ed. 2d 655 (2003);

United States v. Malik, 16 F.3d 45, 50 (2d Cir.) (‘‘rigid

adherence to the literal meaning of a communication

without regard to its reasonable connotations derived

from its ambience would render [statutes proscribing

true threats] powerless against the ingenuity of threateners who can instill in the victim’s mind as clear an

apprehension of impending injury by an implied menace

as by a literal threat’’), cert. denied, 513 U.S. 968, 115

S. Ct. 435, 130 L. Ed. 2d 347 (1994); see also Haughwout

v. Tordenti, supra, 332 Conn. 575 (‘‘[p]ut differently,

even veiled statements may be true threats’’).

To discern the true nature of the defendant’s expression in Krijger, we looked to the context provided by

both the prior relationship between the parties and the

particular circumstances surrounding the alleged threat
itself. State v. Krijger, supra, 313 Conn. 454. First, we

observed that the case was ‘‘not [one] in which one’s

prior hostile acts or menacing behavior provided a clarifying lens through which to view an ambiguous threat’’

because the defendant and the town attorney had an

established relationship that, despite its adversarial

nature, had always been ‘‘cordial and professional.’’ Id.

Second, we noted that the alleged threats followed a

surprisingly contentious court hearing, that the attorney

did not initially view the defendant’s remarks as a

threat, and that the defendant had apologized shortly

after making the remarks in question. Id., 454–55. On

the basis of the facts presented, we concluded that a

reasonable person would have viewed the defendant’s

remarks as a crude, but ultimately benign, way of simply

saying ‘‘ ‘what goes around comes around’ ’’ and reversed

the defendant’s conviction. Id., 456, 461.

The facts underlyng the present case differ significantly from those considered in Krijger. Although the

phrase ‘‘you better watch your back’’6 can, in some

contexts, be used to sincerely caution an addressee of

an impending threat from some external source, it can

also be used as a veiled or conditional threat of violence.

See, e.g., State v. Lewis, Docket No. 96-P-0272 (DRF),

1997 WL 589914, *3 (Ohio App. August 22, 1997) (‘‘A

statement such as ‘you better watch your back’ is what

is known in law as a conditional threat. . . . Even in

the absence of a reference to a specific action, the

logical import of such a statement is that the person is

being threatened with potential physical harm.’’ (Citations omitted.)).7 The record is bereft of any suggestion

that the defendant’s decision to yell these words at

Cherney was intended to convey the former sentiment.

See State v. Taveras, supra, 183 Conn. App. 390 (Elgo,

J., dissenting.) (‘‘[t]his is not a case of a bystander

alerting a pedestrian to an errant vehicle’’). The defendant’s history at the preschool, his general demeanor

during the course of this particular incident itself, and

the subsequent reactions of the preschool’s staff, on

balance, appear objectively to indicate the threat of the

possibility of violence.

First, Bevilaqua’s testimony suggests the defendant

had a hostile relationship with preschool staff. Bevilaqua not only stated that the defendant had previously

caused several ‘‘escalated interaction[s]’’ at the preschool but also specifically testified that she had previously seen the defendant act in a threatening manner.

See State v. Krijger, supra, 313 Conn. 454 (‘‘[w]hen the

alleged threat is made in the context of an existing or

increasingly hostile relationship, courts are more apt to

conclude that an objectively reasonable speaker would

expect that the statement would be perceived by the

listener as a genuine threat’’). The fact that employees

of the preschool notified Bevilaqua of the defendant’s

late arrival even before it occurred, together with the

fact that Bevilaqua immediately decided to return to
the preschool because she ‘‘knew things would get escalated,’’ indicates at the very least that this history fell

far short of the ‘‘cordial and professional’’ relationship

evinced by the record in Krijger.

8

Although we agree with the defendant that evidence

adduced by the state does not detail his precise physical

movements during the incident in question, we cannot

concur with his blanket assertion that there was ‘‘no

evidence’’ of his conduct on that day. The evidence

recounted previously in this opinion indicates that the

defendant was irritated by the call he had initially

received, that he became argumentative with staff after

he arrived, and that his conduct eventually escalated

to the point that he was asked to leave. After exiting

through a set of locked doors, the defendant turned

around, yelled at Cherney, and then unsuccessfully

attempted to reenter the building. While neither Bevilaqua nor Kelly was able to describe the exact manner

in which the defendant had attempted to open those

doors, the evidence suggests that he was acting in an

‘‘enraged’’ and ‘‘intimidating’’ manner at that particular

moment in time. We agree with Judge Elgo’s conclusion

that, in light of the foregoing, the trial court could have

reasonably found by a preponderance of the evidence

that the defendant’s attempt to reenter the preschool

was, at least more likely than not, ‘‘aggressive in nature.’’

State v. Taveras, supra, 183 Conn. App. 386 (Elgo, J., dissenting).

Another important factor in our independent analysis

is the reactions of the preschool’s staff. Unlike the attorney in Krijger, who waited two days to contact the

police, staff members in the present case immediately

contacted their supervisor, Bevilaqua, to tell her what

had occurred. Bevilaqua testified that, when she arrived

at the preschool shortly thereafter, she found that her

staff was ‘‘shaken up’’ and ‘‘concerned’’ by what had

transpired. Bevilaqua then immediately contacted the

police,9

formally prohibited the defendant from reentering the preschool, began pursuing a restraining order,

and hired a police officer for additional security the

following day.10 The immediate pursuit of these particular preventative measures reasonably suggests a specific fear of physical violence. The record now before

us contains no suggestion that these measures were

viewed, either contemporaneously or in hindsight, as

an overreaction to the defendant’s remarks.

Ultimately, the state’s decision to present its case

against the defendant through Bevilaqua and Kelly, neither of whom actually witnessed the defendant’s conduct at the preschool on that particular day, makes this

case a harder one. Prosecutors, in deciding to accuse

individuals of committing breach of the peace in the

second degree in violation of § 53a-181, and, then,

judges and juries in making findings of fact, are required

to separate incidents that reflect the normal agitations
of life from those that are truly injurious to our society.

In the absence of any direct evidence of the defendant’s

conduct, the trial court was left with only secondhand

accounts to decide whether the defendant had crossed

that line. Nevertheless, we agree with Judge Elgo’s conclusion that, particularly in light of the lower standard

of proof attendant to violations of probation, the evidence of the defendant’s conduct and demeanor, together

with the reactions that followed, is sufficient to support

the trial court’s implicit findings in that regard.

As an appellate tribunal, our constitutional obligation

to independently examine the evidentiary record requires

us to determine only whether a reasonable person in

the defendant’s position would have known that the

use of the phrase ‘‘you better watch your back,’’ combined with his demeanor and other surrounding context, would be perceived as a serious threat of physical

violence. See, e.g., State v. Taupier, supra, 330 Conn.

190–94. The state has shown through the evidence presented that those remarks were, in fact, viewed as a

threat of violence by Bevilaqua and her staff. The defendant’s choice of words, his previous interactions with

preschool staff, the descriptions of his demeanor, and

his attempt to reenter the preschool at the height of

the altercation, collectively, point toward the conclusion that their perception was, if nothing more, objectively reasonable. As a result, we disagree with the

Appellate Court’s conclusion that the defendant’s remarks

warrant first amendment protection11 and remand the

case for consideration of the defendant’s claims with

respect to the admission of Bevilaqua’s testimony. See

footnote 2 of this opinion.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

consider the defendant’s remaining claims on appeal.

In this opinion ROBINSON, C. J., and MULLINS,

ECKER and KELLER, Js., concurred.

1 We note that, because the sentences of incarceration imposed on each

of these convictions were to run consecutively, rather than concurrently,

the Appellate Court’s recitation of the defendant’s total effective sentence

was technically inaccurate. See State v. Taveras, 183 Conn. App. 354, 359,

193 A.3d 561 (2018).

2 Kelly’s affidavit was admitted as a full exhibit without objection. Although

defense counsel objected to portions of Bevilaqua’s testimony on hearsay

grounds, the trial court overruled that objection. In a subsequent articulation,

the trial court expressed its view that, although Bevilaqua’s testimony constituted hearsay, it was nonetheless admissible for the purpose of proving the

defendant’s violation of probation because it was ‘‘relevant, reliable, and

probative.’’ See, e.g., State v. Gumbs, 94 Conn. App. 747, 751, 894 A.2d 396,

cert. denied, 278 Conn. 917, 899 A.2d 622 (2006). The defendant assigned

error to the admission of this testimony in his initial appeal, but the Appellate

Court declined to reach that issue in its decision. See State v. Taveras,

supra, 183 Conn. App. 357 n.2. In briefing the present appeal, the defendant

has argued only that the whole of the state’s evidence, including Bevilaqua’s

testimony, is insufficient to support the trial court’s judgments. Questions

related to the admissibility of Bevilaqua’s testimony were neither briefed

nor argued before this court.

3 The state also charged the defendant with violating the terms of his

probation during a completely separate incident on April 16, 2014, but presented no evidence with respect to that alleged violation at the defendant’s
hearing. See State v. Taveras, supra, 183 Conn. App. 361 n.10.

4 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; or . . . (3) threatens to commit any

crime against another person or such other person’s property . . . . For

purposes of this section, ‘public place’ means any area that is used or

held out for use by the public whether owned or operated by public or

private interests.’’

Although portions of the prosecutor’s arguments before the trial court

appear to track the language of § 53a-181 (a) (1), the state subsequently

relied on § 53a-181 (a) (3) as an alternative ground for affirmance when

arguing the case before the Appellate Court. The Appellate Court subsequently examined the sufficiency of the state’s evidence under both subdivisions of § 53a-181 (a). State v. Taveras, supra, 183 Conn. App. 373–74. The

defendant raises no objection to that approach in the present appeal and,

instead, argues only that the Appellate Court correctly concluded that the

state’s evidence fell short under either statutory provision.

5 During oral argument before this court, the state abandoned any challenge to the Appellate Court’s conclusion that the defendant’s speech did

not rise to the level of fighting words. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).

6 Although Bevilaqua and Kelly provided slightly different accounts of the

defendant’s actual words, given the surrounding context, ‘‘you better watch

yourself’’ and ‘‘you better watch your back’’ can both be reasonably construed as a threat of physical violence.

7 The fact that the defendant was locked out of the preschool at the

time and, therefore, was unable to immediately carry out his threat is not

determinative. See, e.g., State v. Carter, 141 Conn. App. 377, 401, 61 A.3d

1103 (2013) (threats while defendant was handcuffed), aff’d, 317 Conn. 845,

120 A.3d 1229 (2015); see also United States v. Voneida, 337 Fed. Appx.

246, 249 (3d Cir. 2009) (threats while defendant was incarcerated).

8 The Appellate Court based its own true threats analysis in the present

case, in part, on the assumption that ‘‘there is . . . no evidence that Cherney

had previously witnessed [the defendant’s] prior behavior . . . .’’ State v.

Taveras, supra, 183 Conn. App. 381. There is, however, testimony in the

record indicating that the school’s staff was generally aware of previous

incidents involving the defendant. Specifically, in describing the reaction of

her staff to the incident at issue in the present case, Bevilaqua testified as

follows: ‘‘I think . . . people were concerned. It wasn’t our first interaction

with [the defendant], [i]t certainly wasn’t our first escalated interaction, and

people were concerned, [m]y staff were concerned . . . .’’ Bevilaqua also

indicated that her staff had originally called to tell her about the defendant’s

late arrival ‘‘because this was not the first incident . . . .’’ In our view, it

is more than reasonable to infer that Cherney, as manager at the preschool,

would have been aware of those same incidents herself.

9 As Judge Elgo’s dissent aptly observes: ‘‘Bevilaqua explained that the

preschool’s ‘internal policy’ was to contact [the] police ‘when something

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

policy, Bevilaqua testified that she contacted the Danbury Police Department, whose officers took statements from staff members. Questioned as

to how she differentiates between ‘a small threat, like . . . I hate this place,’

and something ‘larger’ and more substantial, Bevilaqua testified that she

was ‘trained to know the difference.’ ’’ State v. Taveras, supra, 183 Conn.

App. 386.

10 We note that the true threats exception is specifically designed to guard

against the deadweight losses to our society that are unique to threats of

physical violence. See Haughwout v. Tordenti, supra, 332 Conn. 559, 571

(true threats exception ‘‘protect[s] individuals from the fear of violence

and from the disruption that fear engenders’’ (emphasis added; internal

quotation marks omitted)); State v. Pelella, 327 Conn. 1, 17, 170 A.3d 647

(2017) (‘‘[t]hreatening speech . . . works directly the harms of apprehension and disruption, whether the apparent resolve proves bluster or not and

whether the injury is threatened to be immediate or delayed’’ (internal

quotation marks omitted)).

11 In light of this conclusion, we need not consider the state’s claim that

the defendant’s conduct, as opposed to his speech, constituted a breach of

the peace in the second degree.