State v. Richey

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State v. Richey

STATE OF CONNECTICUT v. MICHAEL RICHEY
(AC 46170)
Alvord, Cradle and Clark, Js.

Syllabus

The defendant, who had been convicted, following a jury trial, of the crime
of threatening in the second degree, appealed to this court, claiming
that there was insufficient evidence to support his conviction and that
the trial court erred in refusing to provide the jury with an instruction
on defense of premises. The victim, P, was a state marshal who had
entered the defendant’s property to serve the defendant with court
documents in a civil matter. P was accompanied by a state trooper, O,
whose body camera recorded the interaction between the defendant
and P. The defendant repeatedly told P that P had previously been told
not to trespass on his property and, after P had returned to his vehicle,
stood outside the vehicle door and stated, inter alia, that ‘‘you’re going
to get a bullet in your head,’’ and ‘‘I’ll go to jail. I don’t give a shit.’’ At
trial, the state introduced testimony from O and P and O’s body camera
footage. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to sustain his conviction because his statements did not
constitute true threats: a reasonable person would have foreseen that
P would interpret the defendant’s statements as a serious threat of harm
or assault, as, inter alia, the defendant asserted during the interaction
that he was willing to accept the consequences of carrying out his
threats, and P’s behavior in bringing O with him to serve the documents
and in remaining in his car once the defendant became confrontational
demonstrated that he took the defendant’s threats seriously; moreover,
the defendant’s assertion that his threatened violence was allegedly not
imminent and was premised on a contingent future event was unpersua-
sive because those conditions are not a requirement for a true threat.
2. The trial court properly denied the defendant’s request to provide the
jury with an instruction on defense of premises; the defendant failed to
meet his burden of production to provide evidence that P was criminally
trespassing on his property, as the evidence adduced at trial would not
have enabled the jury to reasonably infer anything other than that P
believed that he was rightfully carrying out his duties as a state marshal
when he entered the defendant’s property to serve him with court docu-
ments and that P was not aware of any alleged no trespassing signs or
orders barring him from the property.

Argued March 6—officially released June 18, 2024
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State v. Richey

Procedural History

Substitute information charging the defendant with
two counts of the crime of threatening in the second
degree, brought to the Superior Court in the judicial
district of Tolland, geographical area number nineteen,
and tried to the jury before Klatt, J.; verdict and judg-
ment of guilty of one count of threatening in the second
degree, from which the defendant appealed to this
court. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were Jonathan M. Shaw, assistant
state’s attorney, and Jaclyn Preville, supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion

CRADLE, J. The defendant, Michael Richey, appeals
from the judgment of conviction, rendered after a jury
trial, of threatening in the second degree in violation
of General Statutes § 53a-62 (a) (2) (A).1 On appeal, the
defendant claims that (1) the evidence before the trial
court was insufficient to sustain his conviction and (2)
the trial court erred in refusing to provide the jury with
an instruction on defense of premises. We affirm the
judgment of the trial court.
Evidence of the following facts and procedural his-
tory are relevant to our consideration of the defendant’s
claims on appeal. On February 25, 2020, at approxi-
mately 4 p.m., State Marshal Timothy Poloski arrived
at the defendant’s residence on West Shore Road in
Ellington, accompanied by Connecticut State Trooper
1
General Statutes § 53a-62 provides in relevant part: ‘‘(a) A person is
guilty of threatening in the second degree when . . . (2) (A) such person
threatens to commit any crime of violence with the intent to terrorize another
person . . . .’’
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State v. Richey

Patrick O’Brien, to serve the defendant with court docu-
ments in a civil matter. Poloski, who was standing on
a deck attached to the defendant’s residence, knocked
on the door of the residence while O’Brien stood several
feet behind him off of the deck. The defendant answered
the door, leaving a storm door closed between himself
and Poloski. Poloski greeted the defendant and identi-
fied himself as a state marshal, showing the defendant
the court documents and explaining that it was a notice
from M&T Bank about an upcoming hearing. The defen-
dant replied that he had nothing to do with it, and
Poloski explained that the paperwork was a notice of
injunction related to a camper that was the subject of
the hearing. The defendant then came out onto the
deck, holding the collar of a dog that had been standing
beside him and repeatedly told Poloski to ‘‘back off my
deck.’’ When the defendant refused to accept in-hand
service of the court documents, Poloski dropped them
inside the defendant’s residence through the open
storm door.
O’Brien was making attempts to calm the defendant,
who continued to express his displeasure about the
matter involving the camper. Meanwhile, Poloski had
returned to sit in his car, which was blocked in the
defendant’s driveway by O’Brien’s cruiser. The defen-
dant, pointing at Poloski, began repeatedly to shout
that Poloski had been told twice not to trespass and
directed O’Brien to arrest Poloski for criminal trespass.
After O’Brien declined to do so, the defendant shouted
to Poloski, ‘‘You come back, I guarantee you, you won’t
walk away.’’ Despite O’Brien’s repeated attempts to dif-
fuse the situation, the defendant continued to address
Poloski, leaving the deck and moving toward Poloski’s
car. The defendant stated, ‘‘You come back, [O’Brien’s]
my witness, you’re done. . . . Got it? You come back
in any way, shape, or form—I see you in public, just
like I did yesterday . . . . You were at the town hall,
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State v. Richey

same thing, screwing around.’’ The defendant then con-
tinued repeatedly to state that Poloski had ‘‘been tres-
passed from [the] property.’’ At the same time, the
defendant’s dog, which the defendant had released, was
jumping on O’Brien in a friendly manner. When O’Brien
remarked that the dog was ‘‘fine’’ in response to the
defendant’s command to the dog to ‘‘stay down,’’ the
defendant replied that ‘‘she’s good unless I say some-
thing. I’ll guarantee you, she’s fine.’’
As O’Brien was returning to his cruiser, the defendant
approached Poloski’s car, stating, ‘‘Trust me, pal. Trust
me. I’m going to get even with you. [O’Brien] ain’t going
to be on your ass all day. You want to fuck with me?
Come on, get out of the car. . . . Come on, get out of
the car, big mouth. . . . I’ve fucked with you before,
and I’ve won every goddamned time. You keep fucking
around . . . . You see the sign up there? Says abso-
lutely you’re trespassing. You keep fucking around,
you’re going to get a bullet in your head. I’ll guarantee
you that, pal.’’ At that point, O’Brien walked back
toward the defendant, instructing him to go back into
his house. The defendant refused to do so and continued
to address Poloski, stating, ‘‘You keep fucking around,
marshal. You go ahead. You keep fucking around. . . .
I’ll go to jail. I don’t give a shit. But, you won’t leave.
. . . This is your last warning. You can call [inaudible]
and ask him whether or not you think I’m not going to
do it.’’ O’Brien then returned to his cruiser, and he and
Poloski left the premises. Later that day, O’Brien and
three other police officers returned to arrest the defen-
dant, and Poloski provided a written statement about
the incident.
The operative information, dated December 5, 2022,
charged the defendant with two counts of threatening
in the second degree in violation of § 53a-62.2 A jury
2
Count one of the operative information states in relevant part: ‘‘[The
defendant] did, with the intent to terrorize another person, to wit: [Poloski],
threaten to commit a crime of violence against such person, to wit: ‘come
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State v. Richey

trial was held on December 5 and 6, 2022, during which
the state introduced into evidence O’Brien’s body cam-
era footage of the incident and the testimony of Poloski
and O’Brien. The defendant did not present any evi-
dence. The jury then found the defendant guilty of the
first count, threatening in the second degree in violation
of § 53a-62 (a) (2) (A), and not guilty of the second
count, threatening in the second degree in violation of
§ 53a-62 (a) (2) (B), and the court, Klatt, J., sentenced
the defendant to six months of incarceration, execution
suspended, with a one year conditional discharge, the
conditions of which required him to have no contact
with Poloski and no new arrests. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
On appeal, the defendant claims that the evidence is
insufficient to sustain his conviction for threatening
because his statements did not constitute true threats
and were, therefore, protected by the first amendment
to the United States constitution.3 We disagree.
back I guarantee you won’t walk away,’ ‘you come back you’re done,’ ‘this
is not going to end well,’ ‘ trust me pal, I’m going to get even with you, he
isn’t going to be on your ass all day,’ ‘you keep fucking around you’re going
to get a bullet in your head I guarantee you that pal,’ ‘you keep fucking with
me you’re going to get it,’ ‘I’ll go to jail I don’t give a shit but you won’t
leave,’ any of which statements viewed on their own, or in conjunction with
each other, constitute a violation of § 53a-62 (a) (2) (A) . . . .’’
Count two of the operative information states in relevant part: ‘‘[The
defendant] did, with reckless disregard of the risk of causing terror to
another person, to wit: [Poloski], threaten to commit a crime of violence
against such person, to wit: ‘come back I guarantee you won’t walk away,’
‘you come back you’re done,’ ‘this is not going to end well,’ ‘ trust me pal,
I’m going to get even with you, he isn’t going to be on your ass all day,’
‘you keep fucking around you’re going to get a bullet in your head I guarantee
you that pal,’ ‘you keep fucking with me you’re going to get it,’ ‘I’ll go to
jail I don’t give a shit but you won’t leave,’ any of which statements viewed
on their own, or in conjunction with each other, constitute a violation of
§ 53a-62 (a) (2) (B) . . . .’’
3
For jurisprudential reasons, we address the sufficiency of the evidence
claim first, although this differs from the order in which the claims were
presented by the defendant in his principal appellate brief.
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State v. Richey

The following additional procedural history is rele-
vant to the resolution of this claim. At trial on December
6, 2022, the court’s jury charge provided in relevant
part: ‘‘As to count one, that’s the intentional threatening,
threatening in the second degree in violation of § 53a-
62 (a) (2) (A). The statute defining this offense reads
in pertinent part as follows: A person is guilty of threat-
ening in the second degree when that person threatens
to commit any crime of violence with the intent to
terrorize another person. For you to find the defendant
guilty of this charge, the state must prove the following
elements beyond a reasonable doubt. The first element
is that the defendant threatened to commit a crime of
violence. A crime of violence is one in which physical
force is exerted for the purpose of violating, injuring,
damaging, or abusing another person. The state must
prove that the defendant behaved in a manner that
indicated his intent to commit such a crime.
‘‘Now, a threat can only be punishable when it is a
true threat, that is, a threat that a reasonable person
would understand as a serious expression of an intent
to harm or assault, and not mere puffery, bluster, jest,
or hyperbole. In determining whether the threat is a
true threat, consider the particular factual context in
which the allegedly threatening conduct occurred,
which could include the reaction of the person allegedly
being threatened and the defendant’s conduct before
and after the allegedly threatening conduct.
‘‘Now, the second element of this count is that the
defendant intended to terrorize another person. To ter-
rorize means to cause intense fear or apprehension. A
person acts intentionally with respect to a result when
his conscious objective is to cause such a result.’’ The
jury subsequently found the defendant guilty of threat-
ening in the second degree in violation of § 53a-62 (a)
(2) (A).
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State v. Richey

On appeal, the defendant argues that, rather than true
threats, which are punishable under § 53a-62 (a) (2) (A),
his statements were ‘‘classic examples of hyperbole,
bluster, or puffery protected by the first amendment
[to the United States constitution]’’ and, therefore, were
not sufficient evidence of any criminal violation.4
‘‘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, 152–53, 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 principles have been constitutionally applied.
This is such a case, particularly since the question is
one of alleged trespass across the line between speech
unconditionally 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 character which the principles of the [f]irst
[a]mendment . . . protect. . . . We must [indepen-
dently examine] the whole record . . . so as to assure
4
The state argues in its appellate brief that ‘‘the defendant’s . . . claim
that he made his threats in defense of premises . . . implicitly concedes
that they were true threats, made to frighten Poloski into leaving the prem-
ises.’’ Even if we were to agree with this argument, ‘‘it is axiomatic that a
defendant may present inconsistent defenses to the jury.’’ State v. Nathan
J., 294 Conn. 243, 262, 982 A.2d 1067 (2009).
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State v. Richey

ourselves that the judgment does not constitute a for-
bidden intrusion on the field of free expression.’’ (Inter-
nal quotation marks omitted.) State v. Carter, 141 Conn.
App. 377, 397–98, 61 A.3d 1103 (2013), aff’d, 317 Conn.
845, 120 A.3d 1229 (2015). ‘‘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 con-
stituted a true threat, we accept all subsidiary credibility
determinations and findings that are not clearly errone-
ous.’’ (Internal quotation marks omitted.) Haughwout
v. Tordenti, 332 Conn. 559, 573, 211 A.3d 1 (2019).
‘‘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 free-
dom 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 dis-
tasteful 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 con-
tent 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. . . .
‘‘[For example] the [f]irst [a]mendment . . . permits
a [s]tate to ban a true threat. . . .
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State v. Richey

‘‘True threats 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 individu-
als. . . . 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 pro-
tecting 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 state-
ment as a serious expression of intent to harm or
assault.’’ (Citations omitted; internal quotation marks
omitted.) State v. Krijger, 313 Conn. 434, 448–50, 97
A.3d 946 (2014).
‘‘[O]ur Supreme Court has stated that [a]lleged
threats should be considered in light of their entire
factual context . . . . Moreover, our Supreme Court
has identified several factors that a court may use to
assess the factual context in which an alleged threat
is made, including (1) the history of the relationship
between the person who made the alleged threat and
the person or group to whom it was addressed, (2) the
reaction of the statement’s recipients, and (3) whether
the person who made the statement showed contrition
immediately after the statement was made.’’ (Citation
omitted; internal quotation marks omitted.) State v.
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State v. Richey

Taupier, 197 Conn. App. 784, 805, 234 A.3d 29, cert.
denied, 335 Conn. 928, 235 A.3d 525 (2020), cert. denied,
U.S. , 141 S. Ct. 1383, 209 L. Ed. 2d 126 (2021).
In the present case, the defendant’s statements to
Poloski were neither political hyperbole nor a mere
joke. Rather, a reasonable person would have foreseen
that Poloski would interpret the statements as a serious
threat of harm or assault. The evidence was sufficient
to support such a finding in light of the defendant’s
apparent attempts to communicate the seriousness of
his threats. For example, the defendant asserted that
he was willing to accept the consequences of carrying
out his threats, by stating, ‘‘I’ll go to jail. I don’t give a
shit. But you won’t leave.’’ He also demonstrated a
willingness to take immediate action by approaching
Poloski’s vehicle and inviting him to ‘‘come on, get out
of the car.’’ Further, the jury could have inferred from
the defendant’s statement that ‘‘[O’Brien] ain’t going
to be on your ass all day’’ that, although O’Brien was
providing Poloski with immediate protection, the defen-
dant could carry out his threats at a time when Poloski
was without a police escort. The defendant even invited
Poloski to verify that the defendant would carry out
his threats by stating, ‘‘You can call [inaudible] and ask
him whether or not you think I’m not going to do it.’’
Therefore, a reasonable person would have foreseen
that Poloski would interpret the defendant’s statements
as serious threats of harm.
The factual context surrounding the incident further
supports this conclusion. First, the record suggests a
problematic history. Poloski, whose duties require him
to serve the defendant with legal paperwork from time
to time, testified that he felt the need to ask a state
trooper to accompany him to the defendant’s residence
on February 25, 2020. He testified that, although he had
been a marshal for more than thirty years, he had only
asked for a police escort when serving papers a couple
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State v. Richey

of times and that it was ‘‘very, very rare’’ to do so.
Second, Poloski’s reaction to the defendant’s threats is
telling. Poloski testified that he was concerned about
the threats in light of the defendant’s statement that he
sees Poloski around town, because Poloski is in public
every day, unarmed and without a bulletproof vest. He
testified that he took the defendant’s statements as
serious threats. His testimony is supported by evidence
that he retreated to his car and remained there once
the defendant became confrontational, and that, despite
being contacted on a later date to once again serve the
defendant, he referred the work to another marshal as
a result of the incident. Third, there is no evidence in
the record that the defendant showed any contrition.
To the contrary, the evidence reveals that he continued
making threats until Poloski and O’Brien left the prem-
ises.
The defendant’s argument that his case is analogous
to State v. Parnoff, 329 Conn. 386, 186 A.3d 640 (2018)
is unpersuasive. In Parnoff, two workers entered the
private property of the defendant, Laurence V. Parnoff,
pursuant to an easement, and explained to him that
they were employed by the water company to perform
maintenance on a fire hydrant located on his property.
Id., 388, 391. Parnoff became ‘‘very upset, throwing his
arms up and down, yelling, and [telling] them to leave
his property multiple times.’’ Id., 391. ‘‘Despite [the
water company employees’] explanation, [Parnoff] told
[them] that they had no right to be on his property.
According to [one of the employees], [Parnoff] then
told him that, ‘if [they] didn’t get off his property, he
was going to get a gun . . . [t]o shoot [them].’ ’’ Id.
The court concluded that Parnoff’s statement did not
constitute fighting words. The court’s discussion and
holding in Parnoff, therefore, involved only the fighting
words exception to protected speech, because ‘‘[t]he
state pursued this case as a fighting words case—not
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State v. Richey

a true threats case—and the jury was not charged under
the true threats doctrine.’’ Id., 405. Resultantly, this case
is not instructive.
We are similarly unconvinced by the defendant’s
argument that his case is distinguishable from State v.
Pelella, 327 Conn. 1, 170 A.3d 647 (2017). In Pelella, the
defendant, Michael Pelella, was involved in an alterca-
tion with his brother, who ‘‘reported to the police that
[Pelella] had told him, if you go into the attic I will hurt
you.’’ (Internal quotation marks omitted.) Id., 4. Our
Supreme Court held that ‘‘a jury reasonably could find
that [Pelella’s] statement was an unprotected true threat
prohibited by § 53a-62 (a)’’; id., 10; reasoning, in part,
that the statement was unambiguous. Id., 20. The defen-
dant in the present case argues that his statements, in
contrast, were ‘‘ambiguous, not direct.’’ Several of the
defendant’s statements, as found in the record, belie
this assertion. For example, the defendant’s statement,
‘‘[if] you come back, I guarantee you, you won’t walk
away,’’ like Pelella’s statement, was unambiguously an
ultimatum. See State v. Pelella, supra, 20 (‘‘unlike the
precatory statements at issue in [State v. Krijger, supra,
313 Conn. 440]—for example, I’m going to be there
[when you get hurt] . . . the statement in the present
case unambiguously communicated not a wish but an
ultimatum’’ (citation omitted; internal quotation marks
omitted)).
Further, the defendant’s assertion that the violence
he threatened was allegedly not imminent and was
‘‘premised upon a contingent future event’’ is unpersua-
sive because imminence is neither a requirement nor
the primary focus in determining whether a statement
constitutes a true threat. See State v. Pelella, supra, 327
Conn. 17 (‘‘[t]hough relevant, the primary focus of our
inquiry is not immediacy but whether the threat con-
vey[s] a gravity of purpose and likelihood of execution’’
(internal quotation marks omitted)); State v. DeLoreto,
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State v. Richey

supra, 265 Conn. 158 (‘‘[i]mminence . . . is not a
requirement under the true threats doctrine’’). Similarly,
our courts have rejected claims that a threat of condi-
tional future action cannot constitute a true threat. See,
e.g., State v. Pelella, supra, 3–4; State v. Cook, 287 Conn.
237, 256–58, 947 A.2d 307, cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). Accordingly,
we conclude that the defendant’s statements were true
threats, and his claim that the evidence was insufficient
to sustain his conviction fails.
II
The defendant also claims that the trial court erred
in refusing to provide the jury with his requested
instruction on defense of premises. He argues that ‘‘the
evidence sufficiently established that [he] reasonably
believed that he was using reasonable force to prevent
a criminal trespass on his property’’ and that ‘‘[t]his
issue should have been determined by the jury, as trier
of fact.’’ We are not persuaded.
The following procedural history is relevant to the
resolution of this claim. On December 5, 2022, the defen-
dant filed a request to charge that included an instruc-
tion on defense of premises.5 The court, Klatt, J., denied
5
The defendant’s proposed jury instruction provided in relevant part: ‘‘A
person is justified in the use or threatened use of force against another
person that would otherwise be illegal if he is acting in the defense of
premises. It is a complete defense to certain crimes, including threatening
in the second degree. When, as in this case, evidence that the defendant’s
actions were in defense of premises is introduced at trial, the state must
not only prove beyond a reasonable doubt all the elements of the crime
charged to obtain a conviction but must also disprove beyond a reasonable
doubt that the defendant acted in defense of premises. If the state fails to
disprove beyond a reasonable doubt that the defendant acted in defense of
premises in accordance with my instructions, you must find the defendant
not guilty of threatening in the second degree despite the fact that you have
found the elements of that crime proved beyond a reasonable doubt. The
defendant has no burden of proof whatsoever with respect to this
defense. . . .
‘‘To convict the defendant of threatening in the second degree, the state
must disprove beyond a reasonable doubt one of the following elements:
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State v. Richey

the defendant’s request to charge, reasoning that ‘‘both
‘‘Element 1—Right to defend premises
’’The first element is that the defendant had possession or control of the
premises. . . .
‘‘Element 2—From a criminal trespass
‘‘The second element is that . . . Poloski was criminally trespassing on
the premises. The right to defend premises does not allow the use or threat-
ened use of physical force every time someone enters those premises without
consent. For example, the use or threatened use of force may not be used
against someone who enters the premises merely by accident or mistake.
Rather, the use of threatened use of physical force may be used only to
prevent an actual or attempted criminal trespass.
‘‘In this case, the defendant contends that . . . Poloski committed a crimi-
nal trespass in the third degree, in violation of [General Statutes] § 53-109
(a) (1). . . .
‘‘For . . . Poloski to have committed a criminal trespass, he must have
entered or remained on premises which are posted in a manner prescribed
by law or reasonably likely to come to the attention of intruders, or fenced
or otherwise enclosed in a manner designed to exclude intruders.
‘‘It must also be shown that . . . Poloski unlawfully entered or remained
on the premises. A person unlawfully enters or remains when he is not
licensed or privileged to do so. To be ‘licensed or privileged,’ [Poloski] must
either have consent from the person in possession of the premises or have
some other right to be on the premises. . . .
‘‘A state marshal, acting in the performance of execution or service of
process functions, has the right of entry on private property. It is up to you
to decide whether or not the state has proven beyond a reasonable doubt
that . . . Poloski was a state marshal acting in the performance of his
duties giving him a right to enter or remain on the premises.
‘‘For . . . Poloski to have committed a criminal trespass, he must also
know that he was not licensed or privileged to enter or remain on the
premises. A person acts ‘knowingly’ with respect to conduct or circum-
stances when he is aware that his conduct is of such nature or that such
circumstances exist.
‘‘Element 3—Actual belief that force was necessary
‘‘The third element of defense of premises is that the defendant actually—
that is, honestly and sincerely—believed that . . . Poloski was trespassing
on the premises . . . and was refusing to leave having been asked to. The
defendant must have actually believed that the use or threatened use of
physical force was necessary to terminate the trespass.
‘‘ ‘Physical force’ means actual physical force or violence or superior
physical strength. Physical force may not be used, however, if it reasonably
appears that the trespasser is leaving or about to flee, nor may it be used
once the trespasser has left the premises, for this would no longer be
defensive force, but retaliatory and unlawful force.
‘‘Element 4—Reasonableness of that belief
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State v. Richey

[Poloski and O’Brien] testified that they believed that
the state marshal had a right to be there [and] that he
was serving papers . . . . Neither [was] aware . . . of
any legal order otherwise, that that particular marshal
should not have been on the premises. . . .
‘‘[T]he only evidence that we have that perhaps they
didn’t have that right was [that], while the defendant
was speaking . . . he . . . kept repeating to the state
trooper that that particular marshal was not allowed
on the premises, but that’s the only evidence we have.
Nothing more. There’s nothing that’s been presented
that suggested there was an actual order, and from the
defendant’s own mouth, he said . . . this so-called
order for this marshal not to be there was apparently
given to him from another constable, who would not
have any type of authority to take that kind of action
or make that kind of order. . . .
‘‘[T]he court, based on that one line that the defendant
said—or those few lines that the defendant said, just
does not find that to be sufficient evidence.
‘‘The rule is that the evidence must be sufficient that,
if credited by the jury, would raise a reasonable doubt
in the [mind] of a rational juror. I just don’t think that
the language that the defendant used would rise to
that level.’’
On appeal, the defendant argues that he had a consti-
tutional right to a jury instruction on a defense of prem-
ises defense because he met his burden of production.
The defendant further contends that the trial court’s
‘‘The fourth element is that the defendant’s belief was reasonable, and not
irrational or unreasonable under the circumstances. You must ask whether
a reasonable person in the defendant’s situation, viewing the circumstances
from the defendant’s point of view, would have shared the belief. In other
words, was the defendant’s belief that the use or threatened use of physical
force was necessary to prevent or terminate the criminal trespass of . . .
Poloski reasonable under the circumstances. . . .’’
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ruling was improperly based on testimony related to
the elements of criminal trespass. He argues that this
testimony was irrelevant because ‘‘defense of premises
focuses on the reasonable belief of the person defending
the premises, not the beliefs of the persons entering
the premises. It is clear from the video . . . that the
defendant believed that Poloski had no right to enter
the property, and that his doing so was trespassing.
. . . Further, there is no evidence that the defendant
was aware of the . . . existence [of a statute granting
the marshal authority to enter the defendant’s prem-
ises].’’ Nevertheless, he also contends that, viewed in
the light most favorable to providing the instruction,
his assertions that there were no trespassing signs on
the property and that there was a court order barring
Poloski from the property would establish that Poloski
would have known that he was not licensed or privi-
leged to enter the property.6 Finally, the defendant
argues that, in any case, whether Poloski’s and the
defendant’s beliefs about Poloski’s right to be on the
property were reasonable are disputed points to be
resolved by the trier of fact.7
The following legal principles are applicable to our
resolution of this claim. ‘‘A challenge to the validity of
jury instructions presents a question of law over which
[we have] plenary review.’’ (Internal quotation marks
omitted.) State v. Terwilliger, 294 Conn. 399, 412, 984
6
The defendant further contends that our state’s law should recognize as
a trespasser a person who ‘‘makes a lawful entry into the property of another
[but] . . . refuses to leave upon an order by the owner.’’ Although the
defendant cites law from other jurisdictions to support this argument, we
decline to address it in the present case because there is no evidentiary
support for a finding that Poloski was refusing to leave the defendant’s prem-
ises.
7
We note that the defendant also asserted, in his appellate brief, that the
omission of the requested instruction was harmful, because it ‘‘eradicated’’
his argument to the jury that he made the threats as a defense of premises
against Poloski’s criminal trespass. Because we hold that the court did not
err in denying his request to charge, we need not decide whether any alleged
constitutional violation was harmful.
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State v. Richey

A.2d 721 (2009). ‘‘An improper instruction on a defense,
like an improper instruction on an element of an
offense, is of constitutional dimension. . . . [T]he stan-
dard of review to be applied to the defendant’s constitu-
tional claim is whether it is reasonably possible that
the jury was misled. . . . In reviewing the trial court’s
failure to charge as requested, we must adopt the ver-
sion of facts most favorable to the defendant which the
evidence would reasonably support.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Single-
ton, 292 Conn. 734, 745–46, 974 A.2d 679 (2009).
‘‘In asserting a claim of defense of [premises], the
defendant has only the burden of production, meaning
that he merely is required to introduce sufficient evi-
dence to warrant presenting his claim of [defense of
premises] to the jury. . . . [T]he evidence adduced by
the defendant must be sufficient [if credited by the jury]
to raise a reasonable doubt in the mind of a rational
juror as to whether the defendant acted in [defense of
premises]. . . . The burden of production on the defen-
dant is slight and may be satisfied if there is any founda-
tion in the evidence [for the defendant’s claim], no mat-
ter how weak or incredible . . . and in producing
evidence, the defendant may rely on evidence adduced
either by himself or by the state to meet this evidentiary
threshold. . . . [O]nce a defendant identifies sufficient
evidence in the record to support a requested jury
charge, he is entitled thereto as a matter of law, even if
his own testimony, or another of his theories of defense,
flatly contradicts the cited evidence. . . .
‘‘Although the defendant’s burden may be slight,
[b]efore the jury is given an instruction on [defense of
premises] . . . there must be some evidentiary founda-
tion for it. A jury instruction on [defense of premises]
is not available to a defendant merely for the asking.
. . . However low the evidentiary standard may be, it
is nonetheless a threshold the defendant must cross.
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State v. Richey

. . . Although it is the jury’s right to draw logical deduc-
tions and make reasonable inferences from the facts
proven . . . it may not resort to mere conjecture and
speculation.’’ (Citations omitted; internal quotation
marks omitted.) State v. Hall-Davis, 177 Conn. App.
211, 226–27, 172 A.3d 222, cert. denied, 327 Conn. 987,
175 A.3d 43 (2017).
The justification defense of the use of force in defense
of premises is set forth in General Statutes § 53a-20,
which provides in relevant part: ‘‘A person in possession
or control of premises, or a person who is licensed or
privileged to be in or upon such premises, is justified
in using reasonable physical force upon another person
when and to the extent that he reasonably believes such
to be necessary to prevent or terminate the commission
or attempted commission of a criminal trespass by such
other person in or upon such premises . . . .’’8 There-
fore, the defendant was required to produce evidence
of (1) his right to defend the premises, (2) Poloski’s
status as a criminal trespasser on those premises, (3)
the defendant’s actual belief that (a) Poloski was a
criminal trespasser and (b) the reasonable physical
force the defendant used was necessary to prevent or
terminate Poloski’s criminal trespass upon the defen-
dant’s premises, and (4) the reasonableness of those
beliefs. See State v. Terwilliger, supra, 294 Conn. 409
(defendant must produce evidence that he reasonably
believed that victim was trespassing and that extent of
force used was necessary); State v. Brunette, 92 Conn.
App. 440, 448, 886 A.2d 427 (2005) (victim must be
criminally trespassing in order for defense of premises
8
The defendant argues that, as an issue of first impression in our state,
§ 53a-20 should apply not only to uses of physical force but also to threats
of the use of physical force. We decline the invitation to address this question
because we resolve the defendant’s claim on the basis of a threshold issue—
namely that the evidence presented at trial would not have raised a reason-
able doubt in the mind of a rational juror as to whether Poloski was criminally
trespassing.
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20 ,0 0 Conn. App. 1
State v. Richey

to apply), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006);
see also General Statutes § 53a-20. Pursuant to the
defendant’s claim that the court should have instructed
the jury on this justification defense theory, the defen-
dant had the burden to introduce evidence sufficient
to raise a reasonable doubt in the mind of a rational
juror that he was defending his premises from Poloski
trespassing on it. A person commits criminal trespass
in the third degree9 when, ‘‘knowing that such person
is not licensed or privileged to do so . . . [s]uch person
enters or remains in premises which are posted in a
manner prescribed by law or reasonably likely to come
to the attention of intruders or are fenced or otherwise
enclosed in a manner designed to exclude intruders
. . . .’’ General Statutes § 53a-109 (a) (1).
In particular, evidence that Poloski was criminally
trespassing on the defendant’s property on February
25, 2020, would be a prerequisite to a finding that the
defendant’s use of force was justified under the theory
of defense of premises. See State v. Brunette, supra,
92 Conn. App. 448 (‘‘[i]n order for [§ 53a-20] to apply
in this case, the victims . . . would need to have been
criminal trespassers pursuant to General Statutes
9
The defendant, in his proposed jury charge, contended that ‘‘Poloski
committed criminal trespass in the third degree, in violation of [General
Statutes] § 53a-109 (a) (1).’’ The defendant, in his appellate brief, also con-
tends that Poloski committed criminal trespass in the first degree, in violation
of General Statutes § 53a-107. Although the court, in denying the defendant’s
request to charge, ‘‘turned to the instruction on criminal trespass in the first
degree and . . . second and third degree’’; (emphasis added); we decline
to review the defendant’s claim on appeal that Poloski committed criminal
trespass in the first degree. The trial court made its ruling as to the request
to charge on the basis of an element common to §§ 53a-107 and 53a-109,
stating that ‘‘all [of the criminal trespass instructions] . . . refer to the
second element as knowledge, that the defendant knew that he was not
licensed or privileged to be in a place. . . . Both [O’Brien and Poloski]
believed that . . . [Poloski] had the right to be present on the property
and serving the paperwork.’’ Because we, like the trial court, resolve the
defendant’s appellate claim on the basis of this common element, a separate
analysis of criminal trespass in the first degree is unnecessary.
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0 Conn. App. 1 ,0 21
State v. Richey

§§ 53a-107, 53a-108 and 53a-109’’). A reasonable jury
can only make a finding of criminal trespass if the
alleged trespasser knew that he was not licensed or
privileged to enter or remain on the defendant’s prem-
ises. See Burke v. Mesniaeff, 334 Conn. 100, 116–17,
220 A.3d 777 (2019); see also General Statutes §§ 53a-
107, 53a-108 and 53a-109. Therefore, before reaching
the defendant’s arguments as to the reasonableness of
his own beliefs, a threshold question is whether the
evidence adduced at trial, if credited by the jury, was
sufficient to raise a reasonable doubt in the mind of a
rational juror as to whether Poloski knew that he was
not licensed or privileged to be on the defendant’s prop-
erty. ‘‘A person acts knowingly with respect to conduct
or to a circumstance described by a statute defining an
offense when he is aware that his conduct is of such
nature or that such circumstance exists . . . .’’ (Inter-
nal quotation marks omitted.) State v. Harper, 167
Conn. App. 329, 337, 143 A.3d 1147 (2016); see id.,
337–38 (applying statutory definition of ‘‘knowingly’’
to determination of whether defendant charged with
criminal trespass knew that he was not licensed or
privileged to be on premises); see also General Statutes
§ 53a-3 (12).
As revealed by the body camera video footage admit-
ted into evidence, the defendant repeatedly accused
Poloski of having ‘‘trespassed twice’’ and that he was
‘‘told twice to stay off of here.’’ He also made one refer-
ence to a sign ‘‘up there’’ that ‘‘[s]ays absolutely’’ Poloski
was trespassing. Lastly, he asserted that a police ser-
geant ‘‘[has] got the notice’’ and offered to ‘‘dig out the
sheet’’ that ostensibly would show that Poloski was
trespassing. He alleged that, on a previous occasion,
he had ‘‘served [Poloski] back, saying that [Poloski was]
not allowed on [his] property for that camper whatso-
ever’’ and that M&T Bank’s lawyer had told Poloski
twice to stay off the property.
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State v. Richey

Even if the jury were to credit the statements the
defendant made to Poloski, as recorded by O’Brien’s
body camera, those statements do not establish that
Poloski knew that he was not licensed or privileged
to serve the defendant with process on that day. The
evidence adduced at trial would not enable the jury
to reasonably infer anything other than that Poloski
believed that he was rightfully carrying out his legal
duty as a state marshal when he entered the defendant’s
property to serve him with court documents on Febru-
ary 25, 2020. See generally State v. Hargett, 343 Conn.
604, 625, 275 A.3d 601 (2022) (holding that defendant
did not uphold his burden of production and was not
entitled to instruction of self-defense); see also General
Statutes § 6-38a (b) (providing in relevant part that
‘‘[a]ny state marshal, shall, in the performance of execu-
tion or service of process functions, have the right of
entry on private property’’). The evidence at trial
reflected that Poloski was not aware of any alleged no
trespassing signs10 or any alleged order barring him
from the defendant’s property11 and that he and O’Brien
10
Poloski testified that he did not open a gate to get onto the defendant’s
property and that he did not recall seeing any no trespassing signs. O’Brien
also testified that he did not notice any no trespassing signs anywhere, and
there were no signs depicted in his body camera video footage.
11
The following colloquy took place between the prosecutor and Poloski
at trial on December 5, 2022:
‘‘[The Prosecutor]: To your knowledge, was there any legal order pre-
venting you from being there?
‘‘[Poloski]: No. There was not.
‘‘[The Prosecutor]: Had anyone told you that you weren’t allowed to
go there?
‘‘[Poloski]: No.’’
The following colloquy took place between defense counsel and Poloski
at trial on December 5, 2022:
‘‘[Defense Counsel]: [Y]our testimony is [that] you never received any
notice from M&T Bank not to go to [the defendant’s] property?
‘‘[Poloski]: No.
‘‘[Defense Counsel]: Nothing that you recall?
‘‘[Poloski]: I have no idea—I don’t have any idea what that’s about. I don’t
know if that was another marshal or something else or what. It wasn’t me.
‘‘[Defense Counsel]: You were never told by their attorney or a judge not
to go onto [the defendant’s] property?
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State v. Richey

both believed that he was licensed and privileged to
enter the property on that day to serve court documents
on the defendant.12 For the foregoing reasons, we con-
clude that the defendant did not satisfy his burden of
production to establish an evidentiary foundation that
Poloski committed a criminal trespass, and, thus, a jury
instruction on defense of premises, which depends on
such evidence, would be misleading and therefore con-
stitutionally improper.13 See, e.g., State v. Terwilliger,
supra, 294 Conn. 416–17 (concluding that jury instruc-
tion that ‘‘could have misled a reasonable juror’’ violated
‘‘[Poloski]: No. The attorney is the one that sent me there.
‘‘[Defense Counsel]: You never received any sort of written notice . . .
in the mail or served on you?
‘‘[Poloski]: No. Nothing.’’
12
The following colloquy took place between the prosecutor and Poloski
at trial on December 5, 2022:
‘‘[The Prosecutor]: [The defendant] indicated that you weren’t allowed to
be there, correct?
‘‘[Poloski]: He did . . . say that while he was talking. I don’t know what
he was referring to. We do have a right to go onto private property as state
marshals to serve a legal notice.’’
The following colloquy took place between defense counsel and Poloski
at trial on December 5, 2022:
‘‘[Defense Counsel]: Do you recall on [the video] footage where [the
defendant] says to you—he refers to some no trespassing signs as you’ve
absolutely—look at the sign, absolutely no trespassing? Do you recall that
part? . . .
‘‘[Poloski]: I remember him yelling this. Yeah.
‘‘[Defense Counsel]: But you don’t recall whether or not you saw those
signs when you came in?
‘‘[Poloski]: Yeah, because, I mean, we . . . still have to go onto the prop-
erty to make service of process. . . . [T]hat is part of what our job is. . . .
It wouldn’t have made a difference if he had that sign or not.’’
Further, the video footage reveals that, in response to the defendant’s
assertion that Poloski ‘‘had been told twice to stay out,’’ Poloski replied, ‘‘I
have to. It’s my legal duty to deliver that notice.’’ O’Brien also responded
that ‘‘[Poloski’s] not trespassing. . . . He’s serving you legal notice,’’ and
he later reminded the defendant that Poloski ‘‘was trying to explain . . .
that he has a legal obligation to deliver service.’’
13
Because we resolve this claim on the basis of the defendant’s failure
to meet his burden of production, we need not address the arguments in
his appellate brief that the state failed to meet its burden. See State v. Bryan,
307 Conn. 823, 835, 60 A.3d 246 (2013) (‘‘[o]nly when [a defense] has been
sufficiently raised does the state have the burden of disproving such a
defense beyond a reasonable doubt’’ (internal quotation marks omitted)).
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24 ,0 0 Conn. App. 1
State v. Richey

defendant’s due process right to fair trial). Accordingly,
we conclude that the court properly denied the defen-
dant’s request to charge, and the defendant’s claim
fails.14
The judgment is affirmed.
In this opinion the other judges concurred.

14
The state asserts, as an alternative ground for affirmance, that a defense
of defense of premises does not apply to criminal conduct in response to
entries by police officers or individuals accompanied by police officers.
Because we affirm the court’s ruling as to the jury instruction on the basis
that the defendant had not met his burden of production, we need not reach
the state’s proposed alternative ground for affirmance.