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   STATE OF CONNECTICUT v. LAURENCE V.
                PARNOFF
                (AC 36567)
                 Keller, Prescott and West, Js.
       Argued May 19—officially released October 6, 2015

  (Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, Dennis, J.)
 Norman A. Pattis, for the appellant (defendant).
 Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Michael A. DeJoseph, senior assistant
state’s attorney, for the appellee (state).
                          Opinion

   KELLER, J. The defendant, Laurence V. Parnoff,
appeals from the judgment of conviction, rendered after
a jury trial, of disorderly conduct in violation of General
Statutes § 53a-182 (a) (1). He claims that there was
insufficient evidence to sustain the jury’s verdict. We
agree and, accordingly, reverse the judgment of con-
viction.1
   The following facts, as a jury reasonably could have
found, and procedural history are relevant here. On July
11, 2011, Kyle Lavin, a summer intern at a water utility
company, was tasked with conducting routine mainte-
nance on a fire hydrant located on the defendant’s prop-
erty. Lavin called David Lathlean, an employee of the
water utility company, to assist him. Lathlean and Lavin
arrived at the defendant’s residence in separate com-
pany trucks. In addition, Lathlean and Lavin wore identi-
fication badges and bright yellow shirts with the
company’s name imprinted on them. They proceeded
to enter the defendant’s property and locate the fire
hydrant, which was situated in a wooded area approxi-
mately 100 feet from the defendant’s home.2 Upon
inspecting the fire hydrant, they noticed that its front
cap was missing. Approximately ten to twenty feet away
from the fire hydrant was an open-ended canopied shed
wherein they located the fire hydrant’s missing cap,
which had a hose fitting welded into it. The water utility
company did not permit fire hydrant caps to be removed
and modified, indicating that someone had tampered
with the front cap.
  Shortly after Lathlean and Lavin found the missing
cap, the defendant’s daughter arrived at the defendant’s
residence. Lathlean briefly spoke with the defendant’s
daughter, who informed him that the property belonged
to the defendant. The defendant’s daughter then began
heading toward the home when she encountered the
defendant, who was walking up the driveway, and
informed him that Lathlean and Lavin were on the prop-
erty. The defendant proceeded to confront Lathlean
about his presence on the property. Lathlean explained
that he, along with Lavin, were employed by the water
utility company and noted their discovery of the fire
hydrant’s compromised front cap. In response, the
defendant claimed that they had no right to be on his
property and stated that he would retrieve a gun and
shoot them if they did not leave.3 Lathlean then called
the police. The defendant proceeded to walk around
his property with a coffee can in search of worms to
use as fishing bait. Lathlean followed the defendant,
and the defendant continued to tell Lathlean, along with
Lavin, to leave his property. In total, the defendant
asked Lathlean and Lavin to leave his property at least
six times.4
  Glynn McGlynn, a police officer with the Stratford
Police Department, and another police officer arrived
at the defendant’s residence approximately ten minutes
after Lathlean had called the police. McGlynn asked
the defendant whether he had stated that he would
shoot Lathlean and Lavin with a gun, which the defen-
dant admitted to doing. McGlynn then asked the defen-
dant to step back multiple times so he could speak with
Lathlean and Lavin privately, but the defendant refused
to leave the immediate area. Thereafter, McGlynn pro-
ceeded to arrest the defendant.
   The defendant was charged with disorderly conduct
in violation of § 53a-182 (a) (1) and criminal mischief
in the fourth degree in violation of General Statutes
§ 53a-117a (a) (1).5 A jury found him guilty of disorderly
conduct, but not guilty of criminal mischief. The court
sentenced the defendant to three months incarceration,
execution suspended, followed by one year of probation
with special conditions, which required him to complete
an anger management program and to write an apology
letter to Lathlean and Lavin. The court also imposed a
fine of $500, plus court costs. This appeal followed.
Additional facts will be set forth as necessary.
    The defendant’s claim that there was insufficient evi-
dence to sustain the jury’s verdict convicting him of
disorderly conduct in violation of § 53a-182 (a) (1) is
dispositive of this appeal. Specifically, he asserts that
no jury reasonably could have found that his statement
to Lathlean, that he would get a gun and shoot Lathlean
and Lavin if they did not leave his property, constituted
‘‘fighting words,’’ which are a category of unprotected
speech under the first amendment to the federal consti-
tution, and, consequently, that no jury reasonably could
have found that he engaged in ‘‘violent, tumultuous or
threatening behavior’’ as required under § 53a-182 (a)
(1). We agree.
   We begin by setting forth the relevant standard of
review. ‘‘The standard of review we [ordinarily] 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 reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . In [State v. DeLoreto, 265 Conn. 145, 827 A.2d 671
(2003)], however, [our Supreme Court] explained that
[t]his [c]ourt’s duty is not limited to the elaboration of
constitutional principles; we must also in proper cases
review the evidence to make certain that those princi-
ples have been constitutionally applied. This is such a
case, particularly since the question is one of alleged
trespass across the line between speech uncondition-
ally guaranteed and speech which may legitimately be
regulated. . . . In cases [in which] that line must be
drawn, the rule is that we examine for ourselves the
statements in issue and the circumstances under which
they were made to see . . . whether they are of a char-
acter which the principles of the [f]irst [a]mendment
. . . protect. . . . We must [independently examine]
the whole record . . . so as to assure ourselves that
the judgment does not constitute a forbidden intrusion
on the field of free expression. . . . [Our Supreme
Court] . . . reiterated this de novo scope of review in
free speech claims in DiMartino v. Richens, 263 Conn.
639, 661–62, 822 A.2d 205 (2003) . . . . Although credi-
bility determinations are reviewed under the clearly-
erroneous standard because the trier of fact has had
the opportunity to observe the demeanor of the wit-
nesses . . . the reviewing court must examine for
[itself] the statements in issue and the circumstances
under which they were made to determine if they are
protected by the first amendment.’’ (Internal quotation
marks omitted.) State v. Carter, 141 Conn. App. 377,
397–98, 61 A.3d 1103, cert. granted on other grounds,
308 Conn. 943, 66 A.3d 886 (2013).
   General Statutes § 53a-182 provides in relevant part:
‘‘(a) A person is guilty of disorderly conduct 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 threat-
ening behavior . . . .’’ Therefore, ‘‘the crime of disor-
derly conduct consists of two elements: (1) that the
defendant intended to cause, or recklessly created a
risk of causing, inconvenience, annoyance or alarm and
(2) that he did so by engaging in fighting or in violent,
tumultuous or threatening behavior . . . .’’ (Internal
quotation marks omitted.) State v. Briggs, 94 Conn.
App. 722, 726–27, 894 A.2d 1008, cert. denied, 278 Conn.
912, 899 A.2d 39 (2006).
    Our Supreme Court has held that verbal statements,
unaccompanied by physical violence, are considered
‘‘violent, tumultuous or threatening behavior’’ when
they amount to ‘‘fighting words that portend physical
violence.’’ State v. Szymkiewicz, 237 Conn. 613, 620,
678 A.2d 473 (1996). In State v. Indrisano, 228 Conn.
795, 811–15, 640 A.2d 986 (1994), the court rejected a
defendant’s claim that § 53a-182 (a) (1) was unconstitu-
tionally vague on its face or as applied to him. In reach-
ing that conclusion, the court explained that § 53a-182
(a) (1) ‘‘prohibits physical fighting, and physically vio-
lent, threatening or tumultuous behavior.’’ Id., 812. The
court continued by stating that the foregoing conclusion
‘‘is consistent with the ‘fighting words’ limitation that
must be applied when the conduct sought to be pro-
scribed consists purely of speech. Chaplinsky v. New
Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed.
1031 (1942); State v. Anonymous (1978–4), 34 Conn.
Supp. 689, 695, 389 A.2d 1270 (1978). The Chaplinsky
doctrine permits the state to prohibit speech that has
a direct tendency to inflict injury or to cause acts of
violence or a breach of the peace by the persons to
whom it is directed. See Statewide Grievance Commit-
tee v. Presnick, 18 Conn. App. 316, 559 A.2d 220 (1989).’’
State v. Indrisano, supra, 812.
   Subsequently, in State v. Szymkiewicz, supra, 237
Conn. 618, our Supreme Court addressed whether Gen-
eral Statutes § 53a-181 (a) (1), the statute which creates
the infraction of creating a public disturbance, pro-
scribes speech that can be characterized as ‘‘fighting
words.’’ The elements of § 53a-181 (a) (1) are identical
to the elements of § 53a-182 (a) (1), except that § 53a-
181 (a) (1) requires the actor to engage in ‘‘fighting or
in violent, tumultuous or threatening behavior’’ in a
public place. Id. Accordingly, the court cited its inter-
pretation of § 53a-182 (a) (1) in Indrisano and stated
that ‘‘we recognized [in Indrisano] that § 53a-182 (a)
(1) could constitutionally proscribe speech that, under
a given set of circumstances, could fairly be character-
ized as fighting words that portend imminent physical
violence. Moreover, we recognized that fighting words,
because they do portend imminent physical violence
or are likely to prompt imminent physical retaliation,
have a sufficient aspect of physicality such that they
can constitute a violation of § 53a-182 (a) (1). . . .
Accordingly, a fair reading of Indrisano indicates that
speech can be proscribed not only when accompanied
by actual physical conduct, but also when it can be
identified as fighting words that portend physical
violence.
   ‘‘Consequently, we conclude that § 53a-181 (a) (1)
does not require proof of actual physical contact on
the part of the defendant with a victim . . . but rather
that, when applied to speech, the parameters of the
violent, threatening or tumultuous behavior prohibited
by § 53a-181 (a) (1) are consistent with ‘fighting words’
. . . .’’ (Citation omitted.) Id., 619–20.
   ‘‘The protections afforded by the First Amendment
. . . are not absolute, and [the Supreme Court of the
United States has] long recognized that the government
may regulate certain categories of expression consis-
tent with the [federal] Constitution. . . . The First
Amendment permits restrictions upon 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.’’ (Internal quotation
marks omitted.) State v. Carter, supra, 141 Conn. App.
399. ‘‘Fighting words’’ fall within this category of unpro-
tected speech under the first amendment. See Snyder
v. Phelps, 562 U.S. 443, 451 n.3, 131 S. Ct. 1207, 179 L.
Ed. 2d 172 (2011). ‘‘Fighting words are those that are
inherently inflammatory and simply by their utterance
tend to incite a breach of the peace by persons to whom
they are addressed. . . . Such words touch the raw
nerves of one’s sense of dignity, decency, and personal-
ity and . . . therefore tend to trigger an immediate,
violent reaction. . . . They are like sparks, capable of
igniting individual reaction as well as setting off a group
conflagration by provoking hostile reaction or inciting
a riot.’’ (Citations omitted; internal quotation marks
omitted.) Statewide Grievance Committee v. Presnick,
18 Conn. App. 316, 325, 559 A.2d 220 (1989); see also
State v. Szymkiewicz, supra, 237 Conn. 620 (defining
‘‘fighting words’’ as ‘‘speech that has a direct tendency
to cause imminent acts of violence or an immediate
breach of the peace’’ [internal quotation marks omit-
ted]). ‘‘Such speech must be of such a nature that it is
likely to provoke the average person to retaliation.’’
(Internal quotation marks omitted.) State v. Szymkie-
wicz, supra, 620. To be considered ‘‘fighting words,’’
the speech at issue need not actually cause those who
hear the speech to engage in ‘‘violent, tumultuous or
threatening behavior,’’ but must have ‘‘the tendency to
provoke imminent retaliation’’ from them. Id. Moreover,
‘‘[w]hether particular language constitutes fighting
words . . . depends not only on the language but on
the full factual situation of its utterance.’’ State v. Bel-
lamy, 4 Conn. App. 520, 529, 495 A.2d 724 (1985).
    With the foregoing legal principles in mind, we con-
clude that the defendant’s statement did not constitute
‘‘fighting words.’’ To be considered ‘‘fighting words,’’
the defendant’s statement must have had the tendency
to provoke imminent, retaliatory acts of violence from
the average person hearing the statement. ‘‘Imminent’’
is defined as ‘‘ready to take place; esp: hanging threaten-
ingly over one’s head . . . .’’ Webster’s Collegiate Dic-
tionary (11th Ed. 2003); see State v. Harris, 277 Conn.
378, 389, 890 A.2d 559 (2006) (same); State v. Damone,
148 Conn. App. 137, 170 n.15, 83 A.3d 1227 (same), cert.
denied, 311 Conn. 936, 88 A.3d 550 (2014). The foregoing
‘‘imminence’’ component is missing in the present case
for two reasons. First, there was no evidence that the
defendant appeared to be carrying a gun, and thus
immediately capable of the violent act he described,
when he made his statement to Lathlean. Lavin, Lath-
lean and Beverly Doyle, another employee of the water
utility company who arrived at the defendant’s resi-
dence, testified that the defendant was wearing shorts
but was not wearing a shirt. This fact militates against
the inference that the defendant potentially was car-
rying a concealed weapon at the time that he made the
statement at issue. Further, as both Lathlean and Lavin
testified, the defendant warned them that he would
leave their presence, retrieve a gun, come back and
then shoot them if they did not leave his property. There
was no evidence that the defendant went into his home
after making the statement. Instead, he repeatedly
requested that they leave his property without reference
to a gun. Although the defendant once mentioned
retrieving a gun to shoot Lathlean and Lavin, the fact
that he was unarmed and showed no indication of car-
rying a weapon lessened the likelihood that the average
person would have felt provoked to respond to the
defendant’s statement with imminent violence. Second,
the defendant stated that he would shoot Lathlean and
Lavin if they did not leave his property, rather than
warning them that he would shoot them as a result
of their presence on his property or in retaliation for
another act that already had been committed. The con-
ditional nature of the defendant’s statement further
reduced the probability that the average person would
have responded to the defendant’s statement with immi-
nent violence.6
  Additionally, the factual circumstances surrounding
the defendant’s statement further militate against a con-
clusion that his statement constituted fighting words.
The defendant was informed by his daughter that two
individuals whom he had never met were on his prop-
erty. After confronting them and making his statement,
he merely proceeded to walk around his property
searching for worms while continuing to repeatedly tell
Lathlean and Lavin to leave his property. There was
no evidence suggesting that he made any gestures or
committed any other actions consistent with his
statement.
   We readily recognize that the evidence does not
reflect that the defendant responded to the water utility
company personnel in a civil or socially appropriate
manner. Yet, on the basis of the totality of the circum-
stances in which the defendant’s words were used, we
conclude that the average person would not react to
the defendant’s statement with imminent violence. Cf.
State v. Szymkiewicz, supra, 237 Conn. 615–16, 620
(defendant’s speech deemed ‘‘fighting words’’ when,
while being escorted out of store in handcuffs, defen-
dant threatened employee and yelled expletives at
employee and police officer in front of crowd of shop-
pers); Statewide Grievance Committee v. Presnick,
supra, 18 Conn. App. 318–19, 325 (defendant’s speech
deemed ‘‘fighting words’’ when he called employee of
Department of Children and Youth Services, now
Department of Children and Families (department),
‘‘child molester’’ and referred to department as ‘‘nazi
or neo-nazi organization’’ during pretrial conference,
and generally was ‘‘shouting,’’ ‘‘ranting’’ and ‘‘raving’’
as he followed department employees down staircase
after leaving courtroom, garnering attention of
onlookers).
  For the foregoing reasons, we conclude there was
insufficient evidence to convict the defendant of disor-
derly conduct in violation of § 53a-182 (a) (1). No rea-
sonable jury could have found, on the basis of the
evidence in the record, that the defendant’s statement
to Lathlean constituted ‘‘fighting words.’’ Therefore, no
jury reasonably could have found that the defendant
engaged in ‘‘violent, tumultuous or threatening behav-
ior’’ under § 53a-182 (a) (1).
  The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal on the
charge of disorderly conduct in violation of § 53a-182
(a) (1).
      In this opinion the other judges concurred.
  1
     The defendant also claims that the trial court erred by providing the jury
with multiple misleading jury instructions and by improperly augmenting his
sentence in retaliation for his decision to exercise his right to a jury trial.
However, if a defendant prevails on a sufficiency of the evidence claim, he
or she is entitled to a directed judgment of acquittal rather than to a new
trial. See State v. Moore, 100 Conn. App. 122, 126 n.2, 917 A.2d 567 (2007).
Because we agree with the defendant’s claim that there was insufficient
evidence to sustain the jury’s verdict, we need not reach his other claims
on appeal.
   2
     The water utility company had an easement running along the waterline
that afforded it access to the fire hydrant.
   3
     Specifically, Lathlean testified that the defendant had ‘‘said something
about [Lathlean and Lavin going] in his shed and that if we—if we didn’t
get off his property he was going to get a gun or something like that.’’ When
asked by the prosecutor shortly thereafter what the defendant had said he
was intending to do with the gun, Lathlean replied: ‘‘To shoot us.’’
   Lavin, who was standing nearby and overheard the conversation between
the defendant and Lathlean, testified that the defendant had stated the
following: ‘‘[I]f you go into my shed I’m going to go into my house, get my
gun and f’n kill you.’’
   4
     Beverly Doyle, another employee of the water utility company, arrived
at the defendant’s residence at some point after the defendant had made
the statement to Lathlean. Doyle testified that she had heard the defendant
ask her, Lathlean, and Lavin to leave his property ‘‘a couple of times.’’
   5
     The state also charged the defendant with larceny in the sixth degree
in violation of General Statutes §§ 53a-119 (15) (B) and 53a-125b (a). The
defendant filed a motion to dismiss, claiming that the larceny charge was
filed after the relevant statute of limitations had expired. The court granted
the motion.
   6
     We note that Lathlean testified that he did not recall having any reaction
to the defendant’s statement and that it had ‘‘bounced right off [of him].’’ In
contrast, Lavin testified that he felt ‘‘trepidation’’ after hearing the statement.
Although we acknowledge that speech, in order to constitute ‘‘fighting
words,’’ need not actually cause those hearing it to respond with immediate
violence; State v. Szymkiewicz, supra, 237 Conn. 620–21; it is telling that
neither Lathlean nor Lavin reacted violently in response to the defendant’s
statement or testified that they had the urge to do so.
