Prescott v. Gilshteyn

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Prescott v. Gilshteyn

KEREN PRESCOTT v. YULIYA GILSHTEYN
(AC 46350)
Alvord, Seeley and Bear, Js.

Syllabus

The plaintiff filed an application for a prejudgment remedy and a verified
complaint in which she sought to recover damages from the defendant
for assault, battery, intentional infliction of emotional distress and intimi-
dation based on bigotry or bias. The plaintiff, a Black woman who
suffered from multiple sclerosis, was attending a protest at the Capitol
building in January, 2021, in the midst of the COVID-19 pandemic, to
demonstrate her support of the Black Lives Matter movement. The
defendant, a white woman, approached the plaintiff and, inter alia, asked
her about ‘‘Black on Black’’ crime. After a brief exchange of words
between the parties, the defendant spat directly into the plaintiff’s face.
During the hearing on her application, the plaintiff, inter alia, introduced
testimony from G, a professor of criminology and social justice, as an
expert on issues related to racism and social justice. The trial court
granted the application, and the defendant appealed to this court. Held:
1. The trial court did not err in awarding the plaintiff a prejudgment remedy
of $75,000 in emotional distress damages; the plaintiff’s testimony that
she experienced severe emotional distress and humiliation as a result
of being spat on, that the experience reawakened trauma of a past
sexual assault, and that she had increased concerns that she might
contract COVID-19, which could worsen her multiple sclerosis symp-
toms, afforded a reasonable basis for the prejudgment remedy.
2. The trial court did not abuse its discretion in admitting G’s expert testi-
mony: pursuant to the standard set forth in Weaver v. McKnight (313
Conn. 393) for the admission of nonscientific evidence, the court found
that G had special knowledge that was directly applicable to the matter
at issue, his testimony offered the court a historical and sociological
perspective on race and racism that would not have been within the
knowledge of the average person, and his testimony providing context
for how the defendant’s statements could be construed was helpful to
the court in its determination of whether the defendant exhibited racial
bigotry or bias; moreover, the defendant’s challenges to the admission
of G’s testimony in part concerned the substance of G’s testimony,
which related to the weight his testimony should be given and not its
admissibility.
3. This court concluded that there was sufficient evidence before the trial
court to support its determination that there was probable cause to
believe that the defendant’s actions and/or statements were motivated
in whole or substantial part by the plaintiff’s race: G’s testimony, which
was properly admitted and was credited by the trial court, explained
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Prescott v. Gilshteyn
how some of the defendant’s language could be interpreted as racist
tropes indicating a racist attitude; moreover, the trial court reasonably
could have determined that a person of ordinary judgment could con-
clude that the white defendant’s conduct in spitting on the Black plaintiff
was motivated in substantial part by race, as evidence showed that the
defendant moved toward the plaintiff after the plaintiff began chanting,
‘‘Black lives matter,’’ stood directly next to the plaintiff, and used the
phrases ‘‘Black on Black’’ crime and ‘‘all lives matter,’’ which could
suggest the defendant had a level of racial animus.
4. The defendant could not prevail on her unpreserved claim that the trial
court committed plain error in granting the plaintiff’s application for a
prejudgment remedy in a case involving freedom of speech and first
amendment principles: this case involved allegations against the defen-
dant for her conduct in spitting on the plaintiff, not for making a verbal
threat, and the court used the defendant’s statements made just prior
to the spitting incident solely to help determine her intent and whether
she was motivated in whole or part by the plaintiff’s race; moreover,
the defendant did not demonstrate that the claimed error was so clear,
obvious, and indisputable as to warrant the extraordinary remedy of
reversal, as there are no exceptions within the statutes (§§ 52-278c
and 52-278d) governing prejudgment remedies for cases involving first
amendment principles.
Argued February 6—officially released August 20, 2024

Procedural History

Action to recover damages for, inter alia, intimidation
based on bigotry or bias, and for other relief, brought
to the Superior Court in the judicial district of Hartford,
where the court, Budzik, J., granted the plaintiff’s appli-
cation for a prejudgment remedy, and the defendant
appealed to this court. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Kenneth J. Krayeske, for the appellee (plaintiff).
Opinion

SEELEY, J. The defendant, Yuliya Gilshteyn, appeals
from the judgment of the trial court granting the applica-
tion for a prejudgment remedy filed by the plaintiff,
Keren Prescott, upon findings of probable cause that
the defendant committed a civil assault and battery
against the plaintiff, that the defendant intentionally
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Prescott v. Gilshteyn

inflicted emotional distress on the plaintiff, that the
defendant maliciously and intentionally harassed and
intimidated the plaintiff by spitting in the plaintiff’s face
and that her actions in doing so were motivated, in
whole or in substantial part, by the plaintiff’s race. On
appeal, the defendant claims that the court (1) improp-
erly determined that the plaintiff was entitled to a pre-
judgment remedy in the amount of $295,239.60, (2)
abused its discretion in permitting testimony from the
plaintiff’s expert concerning the racist import of certain
statements made by the defendant, and (3) committed
plain error in granting the plaintiff’s application for a
prejudgment remedy in a case involving freedom of
speech and first amendment principles. We disagree
and affirm the judgment of the court.
In its memorandum of decision granting the plaintiff’s
application for a prejudgment remedy, the court made
the following factual findings and credibility determina-
tions. ‘‘[The plaintiff] is a forty-one year old [Black]
woman. She suffers from Multiple Sclerosis (MS) and is
immunocompromised. [The plaintiff] is a sexual assault
survivor [and] . . . testified that stress and viral infec-
tions can produce an increase or flare-up of her MS
condition. [The plaintiff] testified that two members of
her family have died from MS. On January 6, 2021, [the
plaintiff] attended a political protest at the Connecticut
State Capitol building with her friend Melina Floyd-
Torres. Both [the plaintiff] and . . . Floyd-Torres
describe themselves as activists who frequently attend
protests to demonstrate against racism and espouse
the views of the Black Lives Matter movement and an
organization called PowerUp CT. January 6, 2021, was
the date that Connecticut state legislators were due to
be sworn in for their new terms at the Capitol building.
Neither [the plaintiff] nor . . . Floyd-Torres was
involved in organizing the protest at the Capitol building
on January 6. Nevertheless, [the plaintiff] and . . .
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Floyd-Torres decided to attend the protest because they
saw it as an opportunity to express their views to state
legislators and to the public. Upon entering the Capitol
grounds on January 6, [the plaintiff] and . . . Floyd-
Torres made their way through the crowd to the north
side front entrance to the Capitol building. While they
were walking, and throughout the entire time period
relevant to this memorandum of decision, [the plaintiff]
and . . . Floyd-Torres were videotaping their actions
and surroundings with their iPhones, as well as live
streaming their actions and what they were seeing via
Facebook. [The plaintiff] and . . . Floyd-Torres made
their way to a metal ‘bicycle’ fence surrounding the
exterior of the Capitol building. Upon arriving at the
fencing, [the plaintiff] began using a bullhorn or mega-
phone to loudly shout slogans such as ‘Black lives mat-
ter,’ ‘racism is a public health crisis,’ and other similar
statements.

‘‘[The defendant] is an approximately forty year old
Caucasian woman [and] . . . is Jewish. [The defen-
dant] is originally from Lithuania but immigrated to the
United States when she was a teenager shortly after the
fall of the Soviet Union. [The defendant] experienced
instances of persecution and antisemitism in the Soviet
Union, and such experiences were among the reasons
she immigrated to the United States. [The defendant]
also has experienced antisemitism in the United States.
[The defendant] has two young children, one of whom
is a baby. [The defendant] supports the ideas of the
medical freedom movement, which, as relevant to this
memorandum of decision, generally opposes medical
mandates such as required vaccinations and masking
requirements. [The defendant] found out about the Jan-
uary 6 protest at the state Capitol building via Facebook
and attended the protest in order to express her support
for the ideas of the medical freedom movement.
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‘‘At the time [the plaintiff] and . . . Floyd-Torres
began shouting their slogans, [the defendant] was also
at the metal ‘bicycle’ fence and about twenty feet to
[the right of the plaintiff] and . . . [Floyd-Torres]
. . . . Four people separated [the defendant] from [the
plaintiff] and . . . Floyd-Torres, who were standing
together along the metal fence. At all times relevant
to this memorandum of decision, [the defendant] was
holding one of her children, a baby, who was strapped
to the front of [the defendant], wrapped in a blanket,
and facing inward.
‘‘On the videos of the incident at issue, [the defen-
dant] can be seen standing along the metal fence and
looking in the direction of [the plaintiff] as [the plaintiff]
shouts, ‘Black lives matter’ and similar slogans into her
megaphone. Another protestor (not [the defendant])
can be heard on the video shouting, ‘All lives matter.’
After a short period of time (forty seconds or so), [the
defendant] can be seen leaving her previous position
at the metal fence and walking over to stand next to
. . . Floyd-Torres. [The plaintiff] was standing next to
. . . Floyd-Torres. At the prejudgment remedy hearing,
[the defendant] testified that she moved toward . . .
Floyd-Torres and [the plaintiff] because she was con-
cerned that [the plaintiff’s] loud shouts regarding Black
Lives Matter were overshadowing what [the defendant]
understood as the protest’s intended purpose of
espousing support for the medical freedom movement.
The court credits [the defendant’s] testimony on this
point.
‘‘The videos of the incident show that when [the
defendant] walked over to stand next to . . . Floyd-
Torres . . . Floyd-Torres was wearing a mask [and]
[the plaintiff] was wearing a mask and glasses. [The
defendant] was not wearing a mask. At this point, [the
defendant] leaned over to . . . Floyd-Torres and asked
. . . Floyd-Torres about ‘Black on Black crime.’ [The
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Prescott v. Gilshteyn

plaintiff] responded that there is no such thing as ‘Black
on Black crime’ and asked [the defendant] why she did
not ask about ‘white on white crime.’1 [The defendant]
responded that she is more of a minority than either
. . . Floyd-Torres or [the plaintiff].2 [The defendant]
then used her hand to push . . . Floyd-Torres’ mega-
phone away from [the defendant].3 . . . Floyd-Torres
and [the plaintiff] shouted through their megaphones
at [the defendant] to back away from them. More words
were exchanged between the parties. [The plaintiff]
shouted through her megaphone at [the defendant] to
‘back the fuck up’ and remarked that [the defendant]
was unmasked. [The plaintiff] continued shouting her
slogans [and] . . . again shouted through her mega-
phone at [the defendant] to back up. . . . Floyd-Torres
shouted through her megaphone at [the defendant] to
back up and remarked that [the defendant] was
unmasked and had a baby. [The defendant], who had
essentially remained stationary since walking over to
. . . Floyd-Torres’ and [the plaintiff’s] position, took a
step forward toward the metal fence. [The plaintiff]
again shouted through her megaphone at [the defen-
dant] to back up and remarked that [the defendant]
1
‘‘The court accepted Professor Charles Gallagher as an expert on sociol-
ogy and issues related to racism and criminal justice. Professor Gallagher
testified that the phrases ‘all lives matter’ and ‘Black on Black crime’ can
be seen as racist tropes indicating that individuals who use those phrases
may hold racist attitudes. The court credits Professor Gallagher’s testimony
on these points.’’
2
‘‘[The defendant] testified that she was referring to her understanding
that the Jewish population of the United States is smaller than the [Black]
population of the United States. The court credits [the defendant’s] testimony
on this point. The court also credits the testimony of [the plaintiff] and . . .
Floyd-Torres that they were unaware on January 6, 2021, that [the defendant]
[is] Jewish.’’
3
‘‘[The defendant] testified that, given . . . Floyd-Torres’ continued
shouting through her megaphone, [the defendant] was concerned about
potential damage to her child’s hearing and that she and her views were
being, in effect, shouted down. The court credits the second reason proffered
by [the defendant] but not the first.’’
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Prescott v. Gilshteyn

was unmasked. [The defendant] turned suddenly
toward [the plaintiff], spat directly into [the plaintiff’s]
face, and walked away hurriedly.
‘‘[The plaintiff] was struck by [the defendant’s] spit
on her mask, glasses, and megaphone. [The defendant]
testified that she was spitting at [the plaintiff’s] mega-
phone, not at [the plaintiff’s] person. The court does
not credit [the defendant’s] testimony on this point. The
court concludes, as a factual matter, that [the defen-
dant] intended to spit at and on [the plaintiff]. [The
plaintiff] testified that she experienced severe emo-
tional distress as a result of being spat upon by [the
defendant]. [The plaintiff] testified that she experienced
severe emotional distress over increased concerns that
she may contract COVID-19,4 emotional distress over
concerns that COVID-19 might worsen her MS, humilia-
tion over being spat upon in public, and that the bodily
violation of being spat upon reawakened the trauma of
her past sexual assault. The court credits [the plaintiff’s]
testimony.5
‘‘After [the defendant] spat on [the plaintiff] and
walked away hurriedly, [the plaintiff] and . . . Floyd-
Torres pursued [the defendant]. A small crowd began
to form. Some members of the crowd appeared to want
to protect [the defendant] from [the plaintiff] and . . .
Floyd-Torres, while some members of the crowd
appeared to want [the defendant] detained. In the midst
of this somewhat chaotic scene, [the defendant] can be
heard to say on the videotape, ‘Get these crazy Black
‘‘The court takes judicial notice that COVID-19 can be transmitted
4

through saliva. See https://www.cdc.gov/coronavirus/2019-ncov/your-health/
about-covid-19/basics-covid19.html.’’
We note that the website address visited by the trial court is no longer
available. We also note, however, that ‘‘factual findings . . . are squarely
within the trial court’s purview [and] we afford them great deference.’’
(Internal quotation marks omitted.) Kazemi v. Allen, 214 Conn. App. 86,
108, 279 A.3d 742 (2022), cert. denied, 345 Conn. 971, 286 A.3d 906 (2023).
5
‘‘The court credits the counseling bills submitted by [the plaintiff]. . . .’’
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Lives Matter activists away from me.’ Police eventually
arrived on the scene, and sometime later that day, [the
defendant] was arrested. The time period between
when [the defendant] approached [the plaintiff] and
. . . Floyd-Torres and when [the defendant] spat on
[the plaintiff] and walked away is approximately one
minute.’’ (Footnote altered; footnote omitted; footnotes
in original.)

The plaintiff subsequently brought this action by fil-
ing an application for a prejudgment remedy along with
a verified complaint. The verified complaint has four
counts and alleges claims for assault, battery, inten-
tional infliction of emotional distress, and intimidation
based on bigotry or bias pursuant to General Statutes
§ 52-571c.6 A remote hearing was held on the plaintiff’s
application over the course of four nonconsecutive
days, at which the court took into evidence fourteen
exhibits, which included three videos showing the inci-
dent at issue. Following the hearing, the court issued
a memorandum of decision dated March 15, 2023, in
6
General Statutes § 52-571c provides in relevant part: ‘‘(a) Any person
injured in person or property as a result of an act that constitutes a violation
of section 53a-181j, 53a-181k or 53a-181l may bring a civil action against the
person who committed such act to recover damages for such injury.
‘‘(b) In any civil action brought under this section in which the plaintiff
prevails, the court shall award treble damages and may, in its discretion,
award equitable relief and a reasonable attorney’s fee. . . .’’
Pursuant to General Statutes § 53a-181k (a), ‘‘[a] person is guilty of intimi-
dation based on bigotry or bias in the second degree when such person
maliciously, and with specific intent to intimidate or harass another person
or group of persons motivated in whole or in substantial part by the actual
or perceived race, religion, ethnicity, disability, sex, sexual orientation or
gender identity or expression of such other person or group of persons,
does any of the following: (1) Causes physical contact with such other
person or group of persons . . . .’’
Although the legislature has amended § 53a-181k since the events underly-
ing this case; see Public Acts 2021, No. 21-78, § 18; that amendment has no
bearing on the merits of this appeal. In the interest of simplicity, all refer-
ences herein are to the current revision of the statute.
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which it granted the plaintiff’s application for a prejudg-
ment remedy in the amount of $295,239.60. In its deci-
sion, the court made probable cause findings as to each
of the counts of the verified complaint. Specifically,
with respect to the counts alleging assault and battery,
the court found that there was probable cause that ‘‘[the
defendant] committed a civil assault and battery against
[the plaintiff]’’ when the defendant ‘‘caused her spit to
land on [the plaintiff’s] person.’’ Next, the court found
probable cause that the defendant ‘‘intentionally
inflicted emotional distress on [the plaintiff]’’ when the
defendant ‘‘intentionally spat in [the plaintiff’s] face—
an outrageous act that goes beyond all possible bounds
of decency . . . .’’ The court further found that the
defendant knew that what she had done would cause
the plaintiff to suffer emotional distress, and that was
‘‘particularly so in the midst of a global pandemic
wherein the deadly virus at issue can be transmitted to
other persons through an infected person’s saliva.’’ The
court specifically credited the plaintiff’s testimony that
she suffered emotional distress as a result of the inci-
dent.
Finally, the court made a finding that probable cause
existed that ‘‘[the defendant] maliciously and intention-
ally harassed and intimidated [the plaintiff] by intention-
ally spitting in [the plaintiff’s] face and that [the defen-
dant’s] actions in so doing were motivated, in whole or
in substantial part, by [the plaintiff’s] race. In making
this finding, the court relie[d] on the following specific
facts. [The plaintiff] is [Black]. [The defendant] is white.
[The plaintiff] was actively expressing her support for
the Black Lives Matter movement at the time in ques-
tion. After hearing [the plaintiff] express her support
for the Black Lives Matter movement, [the defendant]
intentionally left her initial position at the metal fence
and walked over to stand next to [the plaintiff]. Upon
reaching [the plaintiff] and . . . Floyd-Torres, [the
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defendant] immediately expressed her disagreement
with [the plaintiff’s] views by using what an expert
witness testified is a racist trope—asking about so-
called ‘Black on Black crime.’ Seconds later, [the defen-
dant] spat on [the plaintiff]. Stated plainly, when a white
person spits on a Black person while that Black person
is expressing views in support of the Black Lives Matter
movement, and the white person disputes those views
by expressing a racist trope, a person of ordinary judg-
ment would, at a minimum, entertain the idea that the
white person’s decision to spit on the Black person was
motivated in substantial part by race.’’ In reaching this
conclusion, however, the court noted that it was not
expressing a ‘‘view on whether the facts found by the
court . . . meet the standard of preponderance of the
evidence.’’
After considering any defenses, counterclaims or set-
offs, the court concluded that the damages suffered by
the plaintiff primarily were for emotional distress. It
awarded the plaintiff a prejudgment remedy in the
amount of $75,000 for emotional distress damages. In
light of the court’s finding of probable cause to sustain
count four alleging a violation of § 52-571c, the court
trebled the damages award to $225,000. Thereafter, the
court concluded that there was probable cause that
the plaintiff incurred $5700 in expenses when seeking
counseling regarding the incident and trebled that
amount, for a total of $17,100 in economic damages.
Finally, the court awarded the plaintiff $53,139.60 in
attorney’s fees. The total amount of the prejudgment
remedy awarded is $295,239.60. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
Before addressing the claims raised on appeal, we
first set forth the law governing prejudgment remedies
and our limited standard of review in such cases. ‘‘A
prejudgment remedy means any remedy or combination
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Prescott v. Gilshteyn

of remedies that enables a person by way of attachment,
foreign attachment, garnishment or replevin to deprive
the defendant in a civil action of, or affect the use,
possession or enjoyment by such defendant of, his prop-
erty prior to final judgment . . . . General Statutes
§ 52-278a (d). A prejudgment remedy is available upon
a finding by the court that there is probable cause that
a judgment in the amount of the prejudgment remedy
sought, or in an amount greater than the amount of the
prejudgment remedy sought, taking into account any
defenses, counterclaims or set-offs, will be rendered in
the matter in favor of the plaintiff . . . . General Stat-
utes § 52-278d (a) (1). . . . Proof of probable cause as
a condition of obtaining a prejudgment remedy is not
as demanding as proof by a fair preponderance of the
evidence. . . . The legal idea of probable cause is a
bona fide belief in the existence of the facts essential
under the law for the action and such as would warrant
a [person] of ordinary caution, prudence and judgment,
under the circumstances, in entertaining it. . . . Proba-
ble cause is a flexible common sense standard. It does
not demand that a belief be correct or more likely true
than false. . . . Under this standard, the trial court’s
function is to determine whether there is probable
cause to believe that a judgment will be rendered in
favor of the plaintiff in a trial on the merits. . . . TES
Franchising, LLC v. Feldman, 286 Conn. 132, 136–37,
943 A.2d 406 (2008).

‘‘Section 52-278d (a) explicitly requires that a trial
court’s determination of probable cause in granting a
prejudgment remedy include the court’s taking into
account any defenses, counterclaims or set-offs . . . .
Therefore, it is well settled that, in determining whether
to grant a prejudgment remedy, the trial court must
evaluate both parties’ evidence as well as any defenses,
counterclaims and setoffs. . . . Such consideration is
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significant because a valid defense has the ability to
defeat a finding of probable cause. . . . Id., 141.
‘‘As for our standard of review, our Supreme Court
has stated that an appellate court’s role on review of
the granting of a prejudgment remedy is very circum-
scribed. . . . In its determination of probable cause,
the trial court is vested with broad discretion which is
not to be overruled in the absence of clear error. . . .
Since Augeri [v. C. F. Wooding Co., 173 Conn. 426,
429, 378 A.2d 538 (1977)] . . . we have consistently
enunciated our standard of review in these matters. In
the absence of clear error, this court should not overrule
the thoughtful decision of the trial court, which has
had an opportunity to assess the legal issues which may
be raised and to weigh the credibility of at least some
of the witnesses. . . . [On appeal], therefore, we need
only decide whether the trial court’s conclusions were
reasonable under the clear error standard. . . . TES
Franchising, LLC v. Feldman, supra, 286 Conn. 137–38.
Additionally, we do not conduct a plenary review of the
merits of defenses . . . raised, but rather our review is
confined to a determination of whether the trial court’s
finding of probable cause constitutes clear error.’’
(Emphasis omitted; internal quotation marks omitted.)
Konover Development Corp. v. Waterbury Omega, LLC,
214 Conn. App. 648, 657–58, 281 A.3d 1221, cert. denied,
345 Conn. 919, 284 A.3d 627 (2022).
I
The defendant’s first claim is that the court improp-
erly awarded the plaintiff a prejudgment remedy in the
amount of $75,000 for emotional distress. Specifically,
the defendant argues that there is little to no evidence
supporting the plaintiff’s claim of emotional distress
‘‘other than [her] self-serving statements [as] an activ-
ist,’’ which were not sufficient to meet her burden of
establishing the extent of her damages. We do not agree.
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The following additional facts are relevant to the
defendant’s claim. In its memorandum of decision, the
court stated that, ‘‘[i]n setting an appropriate initial
emotional distress damage amount, [it] relie[d] on the
following facts. [The plaintiff] was spat upon in public.
The court also [found], as set forth [previously], that
[the plaintiff] was spat upon because she is [Black].
The court credit[ed] [the plaintiff’s] testimony that these
events are deeply humiliating to [her], caused [her]
severe emotional distress, and reawakened trauma
related to a prior sexual assault. Additionally, [the plain-
tiff] is immunocompromised as a result of her MS diag-
nosis, and, on January 6, 2021, Connecticut was still in
the midst of the COVID-19 pandemic. COVID-19 can be
spread by saliva, and a COVID-19 diagnosis for [the
plaintiff] would not only be emotionally distressing in
and of itself but especially so for [the plaintiff] because
COVID-19 could aggravate [the plaintiff’s] preexisting
MS, a disease that [she] had seen kill two of her family
members. [The plaintiff] also had to wait a period of
time before a test could confirm [that] she was COVID-
19 negative.’’
We next set forth general legal principles that guide
our resolution of this claim. ‘‘Generally, a trial court
[must] make a probable cause determination as to both
the validity of the plaintiff’s claim and the amount of
the remedy sought . . . .’’ (Internal quotation marks
omitted.) J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 339, 71 A.3d 492 (2013). In the present
case, the defendant’s claim as to the emotional distress
damages concerns the latter. ‘‘[A]lthough the likely
amount of damages need not be determined with mathe-
matical precision . . . the plaintiff bears the burden of
presenting evidence [that] affords a reasonable basis
for measuring her loss . . . .’’ (Internal quotation
marks omitted.) Id., 339–40; see also Burkert v. Petrol
Plus of Naugatuck, Inc., 5 Conn. App. 296, 301, 497
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Prescott v. Gilshteyn

A.2d 1027 (1985) (‘‘damages need not be established
with precision but only on the basis of evidence yielding
a fair and reasonable estimate’’ (internal quotation
marks omitted)). Moreover, trial courts have ‘‘broad
legal discretion in awarding emotional distress dam-
ages’’; Commission on Human Rights & Opportunities
ex rel. Cortes v. Valentin, 213 Conn. App. 635, 656, 278
A.3d 607, cert. denied, 345 Conn. 962, 285 A.3d 389
(2022); and in our very limited review of the granting
of a prejudgment remedy, we are mindful that the trial
court, ‘‘[i]n its determination of probable cause . . . is
vested with broad discretion which is not to be over-
ruled in the absence of clear error.’’ (Internal quotation
marks omitted.) TES Franchising, LLC v. Feldman,
supra, 286 Conn. 137. We, therefore, do not examine
the court’s decision under an abuse of discretion stan-
dard but, rather, ‘‘need only decide whether the trial
court’s conclusions were reasonable under the clear
error standard.’’ (Internal quotation marks omitted.) Id.,
138. ‘‘[T]he clear error standard in this context is a
heightened standard of deference that exceeds the level
of deference afforded under the abuse of discretion
standard. Therefore, this court will overrule the trial
court’s determination on a prejudgment remedy only if
we are left with the definite and firm conviction that a
mistake has been committed.’’ (Internal quotation
marks omitted.) Landmark Investment Group, LLC v.
Calco Construction & Development Co., 141 Conn. App.
40, 50, 60 A.3d 983 (2013).
In Giordano v. Giordano, 39 Conn. App. 183, 664
A.2d 1136 (1995), this court explained that ‘‘[a]n award
of damages for emotional distress may be valid even
though it is not substantially based on incurred medical
expenses. Berry v. Loiseau, 223 Conn. 786, 811, 614
A.2d 414 (1992). A plaintiff may recover damages in a
personal injury action for pain and suffering even when
such pain and suffering is evidenced exclusively by
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the plaintiff’s subjective complaints. . . . [There is]
no reason to subject a claim of mental suffering, which
is ordinarily evidenced by subjective complaints, to
stricter scrutiny or greater care than a claim of physical
suffering evidenced by the same type of complaints.
. . . Plaintiffs claiming damages as a result of emo-
tional distress are not required to present expert medi-
cal testimony or psychiatric bills to substantiate their
claims of noneconomic damages such as pain and suf-
fering. . . . This rule also applies to other areas of tort
law where noneconomic damages are claimed. See, e.g.,
Harris v. Forklift Systems, Inc., 510 U.S. 17, [22, 25],
114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (holding that in
cases alleging discriminatory work environment, there
cannot be a mathematically precise test, noting in con-
currence that the plaintiff need not prove that his or
her tangible productivity has declined as a result of the
harassment. . . . It suffices to prove that a reasonable
person subjected to the discriminatory conduct would
feel as the plaintiff did . . . . [Ginsberg, J., concur-
ring]).’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Giordano v. Giordano,
supra, 207–208. As a result, we rejected a claim of the
defendant in that case ‘‘that because noneconomic dam-
ages cannot be estimated as precisely as economic dam-
ages, prejudgment remedies are inappropriate in emo-
tional distress cases. The defendant’s case is not, as he
implies, the first case where a prejudgment remedy has
been awarded in a claim for noneconomic damages.
The very nature of some civil claims makes the amount
of a prejudgment remedy award a reasonable estima-
tion rather than an estimation of reasonable cer-
tainty.’’ (Emphasis added.) Id., 208.

Similarly, in Commission on Human Rights &
Opportunities ex rel. Cortes v. Valentin, supra, 213
Conn. App. 654–56, this court rejected a claim that there
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was insufficient evidence to support an award of emo-
tional distress damages when the award was based on
the testimony of the intervening plaintiff alone. In doing
so, we noted that, ‘‘[i]n garden variety emotional dis-
tress claims, the evidence of mental suffering is gener-
ally limited to the testimony of the plaintiff.’’ (Internal
quotation marks omitted.) Id., 655; see also Patino v.
Birken Mfg. Co., 304 Conn. 679, 707, 41 A.3d 1013 (2012)
(same).
‘‘Viewing the evidence before the court in the light
most favorable to the plaintiff’’; Alpha Beta Capital
Partners, L.P. v. Pursuit Investment Management,
LLC, 193 Conn. App. 381, 453, 219 A.3d 801 (2019), cert.
denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert.
denied, 334 Conn. 911, 221 A.3d 446 (2020); as we are
required to do, we conclude that the court’s prejudg-
ment remedy award of damages for emotional distress
was not clear error. Although the defendant describes
as self-serving the plaintiff’s testimony concerning the
humiliating nature of the incident and the emotional
distress she claims to have suffered as a result, the court
specifically found credible the plaintiff’s testimony that
she experienced severe emotional distress as a result of
being spat upon by the defendant and due to increased
concerns that she may contract COVID-19 and that con-
tracting COVID-19 might worsen her MS. The court also
found credible her testimony that she felt ‘‘humiliation
over being spat upon in public, and that the bodily
violation of being spat upon reawakened the trauma of
her past sexual assault.’’7 It is not the role of an appellate
7
Specifically, the plaintiff testified that her ‘‘biggest triggers’’ for her MS
‘‘are stress.’’ When asked what are the emotional and physical reactions
that she has suffered since the incident, she responded, ‘‘a lot of crying
. . . [a] lot of embarrassment . . . [a] lot of public humiliation.’’ She also
described being in ‘‘[a] lot of physical pain’’ starting about a week after the
incident when she ‘‘started noticing patches of [her] hair coming out in
different parts of [her scalp],’’ and that she believed it was from stress. As
a result, she went to her doctor, who diagnosed her with shingles. Thereafter,
she suffered a flare-up of her MS. Further, the plaintiff testified that she
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court to disturb that credibility determination. See
Companions & Homemakers, Inc. v. A&B Homecare
Solutions, LLC, 348 Conn. 132, 148, 302 A.3d 283 (2023)
(‘‘[i]n a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony’’ (internal quota-
tion marks omitted)); Deutsche Bank AG v. Sebastian
Holdings, Inc., 346 Conn. 564, 594 n.9, 294 A.3d 1 (2023)
(‘‘[The trial] court, as the trier of fact and thus the sole
arbiter of credibility, was free to accept or reject, in
whole or in part, the testimony offered by either party.
. . . Questions of whether to believe or to disbelieve
a competent witness are beyond our review.’’ (Citation
omitted; internal quotation marks omitted.)). Moreover,
the court reasonably could have inferred from that testi-
mony that her emotional distress resulted from the inci-
dent with the defendant. See Commission on Human
Rights & Opportunities ex rel. Cortes v. Valentin,
supra, 213 Conn. App. 655 (‘‘[i]t is the right of the trier
of fact to draw reasonable and logical inferences from
the facts that it finds to be proved’’ (internal quotation
marks omitted)).
The plaintiff’s testimony, therefore, afforded a rea-
sonable basis for the prejudgment remedy of $75,000
in emotional distress damages. See Carrol v. Allstate
Ins. Co., 262 Conn. 433, 448, 815 A.2d 119 (2003) (jury
reasonably could have concluded that plaintiff suffered
emotional distress on basis of plaintiff’s testimony that
‘‘he could not sleep, had frequent nightmares, had a loss
of appetite, and experienced depression and a sense of
isolation from his community because of the investiga-
tion’’ by defendant insurer into origins of fire at plain-
tiff’s home); Iino v. Spalter, 192 Conn. App. 421, 477–78,
218 A.3d 152 (2019) (‘‘[a] plaintiff may recover damages
in a personal injury action for pain and suffering even
has incurred expenses for therapy needed related to the incident, and that
the incident felt like ‘‘attempted murder’’ to her.
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when such pain and suffering is evidenced exclusively
by the plaintiff’s subjective complaints’’ (internal quota-
tion marks omitted)). As the plaintiff established a rea-
sonable basis for the court’s conclusions regarding emo-
tional distress, its decision to award a prejudgment
remedy of $75,000 for emotional distress was not
clear error.
II
The defendant’s next claim concerns the court’s
admission of expert testimony from Charles A. Gal-
lagher, a professor of sociology and criminal justice at
LaSalle University, concerning issues of race and the
racial import of certain statements made by the defen-
dant—specifically, the defendant’s statement that ‘‘all
lives matter’’ and reference to ‘‘Black on Black crime.’’
First, the defendant argues that Gallagher’s testimony
should not have been admitted into evidence because
Gallagher, as a nonscientific expert, did not have any
special skill or knowledge directly applicable to the
matter in issue, which concerned the defendant’s intent
at the time she spat on the plaintiff, he ‘‘had nothing
but attenuated general knowledge of the discussion of
race in the United States,’’ and he offered no meaningful
assistance to the court given that his testimony shed
no light on the defendant’s intent. Second, the defendant
argues that there was no evidence that the defendant’s
statements ‘‘were inspired by racial animus other than
the highly conjectural and virtually meaningless testi-
mony of [Gallagher],’’ whose testimony should not have
been permitted, and that, in the absence of that testi-
mony, the plaintiff offered no evidence establishing that
the defendant’s conduct was motivated by a specific
intent to intimidate and harass the plaintiff on account
of her race, as required to treble the damages under
§ 52-571c. We disagree with both claims and address
them in turn.
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A

The following additional facts are relevant to the
defendant’s claim concerning the admission of Gallagh-
er’s testimony. Following the first two days of the hear-
ing on the plaintiff’s application for a prejudgment rem-
edy, the defendant filed a motion on July 1, 2022, to
preclude Gallagher’s expert testimony. The court
denied the motion in a written order dated July 25, 2022.
In that order, the court determined that the proffered
expert testimony was not scientific in nature8 and, thus,
was subject to admissibility under the standard set forth
in Weaver v. McKnight, 313 Conn. 393, 405–406, 97
8
In her motion to preclude the expert testimony, the defendant also
requested a hearing pursuant to State v. Porter, 241 Conn. 57, 80–90, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d
645 (1998), to determine the admissibility of the proffered expert testimony.
In Porter, our Supreme Court ‘‘followed the United States Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that testimony based on
scientific evidence should be subjected to a flexible test to determine the
reliability of methods used to reach a particular conclusion. . . . A Porter
analysis involves a two part inquiry that assesses the reliability and relevance
of the witness’ methods.’’ (Internal quotation marks omitted.) State v.
Raynor, 337 Conn. 527, 529 n.2, 254 A.3d 874 (2020). The trial court in
the present case denied the defendant’s request, concluding that, because
Gallagher’s testimony was not scientific in nature, no Porter hearing was
required. In her appellate brief, the defendant makes a passing reference
to the court’s determination that Gallagher’s testimony was not scientific
in nature and asserts that it constituted clear error. In her appellate brief,
the plaintiff asserts that the defendant’s claim that a Porter hearing was
required is inadequately briefed. We agree with the plaintiff. ‘‘We repeatedly
have stated that [w]e are not required to review issues that have been
improperly presented to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in order to avoid abandon-
ing an issue by failure to brief the issue properly.’’ (Internal quotation marks
omitted.) In re Javonte B., 226 Conn. App. 651, 653 n.2, A.3d (2024).
The defendant has provided only a cursory analysis in a few sentences with
no citation to authority supporting her assertions that the testimony was
scientific in nature and that the court committed clear error. Accordingly,
we decline to review the claim. See In re A. H., 226 Conn. App. 1, 31 n.23,
317 A.3d 197 (declining to review claim that was inadequately briefed), cert.
denied, 349 Conn. 918, 317 A.3d 784 (2024).
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A.3d 920 (2014). After applying that standard, the court
stated: ‘‘[T]he court finds . . . Gallagher is an expert in
racial justice, racial criminal justice and related topics
based on the curriculum vitae and report attached to
[the plaintiff’s] expert disclosure. . . . Because [the
plaintiff] seeks treble damages pursuant to . . . § 52-
571c for intimidation based on racial bigotry or bias,
the possible racial import of [the defendant’s] words
and/or actions are directly relevant to the amount of
the prejudgment remedy the court may order. Thus, the
issue becomes whether any testimony . . . Gallagher
might be qualified to offer would be helpful to the deter-
mination of an issue to be decided by the fact finder,
here, the court. The court concludes that, in this case,
the answer to that question is ‘yes.’
‘‘In setting an appropriate amount of a prejudgment
remedy, the court is required to determine, based on a
standard of probable cause, whether [the defendant’s]
words and/or actions are based on racial bigotry or
bias. At the June 16, 2022 hearing on this matter, there
was testimony to the effect that [the defendant] used
the phrase ‘all lives matter’ in response to [the plain-
tiff’s] use of the phrase ‘Black Lives Matter.’ Addition-
ally, at the June 16, 2022 hearing, there was testimony
to the effect that [the defendant] made statements
regarding ‘Black on Black crime’ in response to [the
plaintiff’s] statements. In the exercise of its discretion
to admit trial testimony, the court concludes that it
would be helpful to the court to hear expert testimony
as to whether any statements or actions by [the defen-
dant] may exhibit a racial bigotry or bias.’’ (Citation
omitted.)
The test for admitting nonscientific expert testimony
was set forth by our Supreme Court in Weaver v.
McKnight, supra, 313 Conn. 405–406. Under that test,
‘‘[e]xpert testimony should be admitted when: (1) the
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witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues. . . . [Id.] We review a trial court’s deci-
sion to [admit] expert testimony for an abuse of
discretion. . . . We afford our trial courts wide discre-
tion in determining whether to admit expert testimony
and, unless the trial court’s decision is unreasonable,
made on untenable grounds . . . or involves a clear
misconception of the law, we will not disturb its deci-
sion.’’ (Internal quotation marks omitted.) R.T. Vander-
bilt Co. v. Hartford Accident & Indemnity Co., 171
Conn. App. 61, 110, 156 A.3d 539 (2017), aff’d, 333 Conn.
343, 216 A.3d 629 (2019).

In the present case, applying the test set forth in
Weaver, we conclude that the court did not abuse its
wide discretion in admitting Gallagher’s testimony. As
to the first prong of Weaver, Gallagher is a professor
of sociology with an expertise on issues related to race
and criminal justice, and the court explicitly accepted
Gallagher as an expert on those issues. See footnote
1 of this opinion. Because the plaintiff sought treble
damages pursuant to § 52-571c for intimidation based
on racial bigotry or bias, the court determined that
testimony by Gallagher concerning the possible racial
import of the defendant’s words and/or actions would
be directly relevant to the amount of any prejudgment
remedy ordered by the court. Accordingly, Gallagher
had special knowledge that was directly applicable to
the matter at issue.

Second, after the court accepted Gallagher as an
expert in sociology and racial justice, Gallagher testified
regarding his knowledge of the sociological significance
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of the Black Lives Matter and All Lives Matter9 move-
ments, as well as literature regarding ‘‘Black on Black
crime.’’ He further testified regarding hallmarks of rac-
ist tropes and differentiating between racism, bias, and
bigotry, and the historical conditions that were relevant
to the circumstances in the present case. Although the
defendant claims that Gallagher offered ‘‘nothing but
attenuated general knowledge of the discussion of race
in the United States’’ and that his ‘‘expertise is of a
watercooler variety,’’ his testimony and academic cre-
dentials belie such a claim. There is a difference
between Gallagher’s academic experience in these
fields and the knowledge that the average person might
have. Gallagher offered the court a historical and socio-
logical perspective on race and racism that not only
helped inform the court’s conclusion regarding racial
animus but would not have been within the knowledge
of the average person, despite their own experience
with these concepts. We conclude, therefore, that Gal-
lagher’s testimony is not common to the average per-
son.
Finally, as to the third prong of Weaver, the court
specifically found that, given Gallagher’s background
in racial criminal justice, his testimony would be helpful
to the court in its determination of whether the defen-
dant’s words and/or actions were primarily motivated
by race, which was directly relevant to the amount of
the prejudgment remedy ordered by the court. As the
defendant points out, Gallagher could not and did not
provide testimony as to what the defendant’s specific
intent or motivation was during the incident; his testi-
mony, however, provided context for how the defen-
dant’s statements could be construed, which the court
found to be helpful in its determination of whether the
9
Gallagher testified that the research he had seen shows that ‘‘people
[who] embrace the moniker ‘all lives matter’ tend to have certain ideas
about race. They tend to be more anti-Black.’’
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defendant exhibited racial bigotry or bias. Moreover,
the defendant’s challenges to the admission of Gallagher’s
testimony in part concern the substance of his conclu-
sions, which relates more to the weight that his testi-
mony should be given, not its admissibility. See Kohl’s
Dept. Stores, Inc. v. Rocky Hill, 219 Conn. App. 464,
490–91, 295 A.3d 470 (2023). Accordingly, we conclude
that it was not an abuse of the court’s discretion to
admit Gallagher’s testimony.
B
The defendant next claims that there was no evidence
that her statements ‘‘were inspired by racial animus
other than the highly conjectural and virtually meaning-
less testimony of [Gallagher],’’ whose testimony should
not have been permitted, and that, in the absence of that
testimony, the plaintiff offered no evidence establishing
that the defendant’s conduct was motivated by a spe-
cific intent to intimidate and harass the plaintiff on
account of her race, as required to treble the damages
under § 52-571c. We first find this claim unavailing in
light of our determination that the admission of Gallagh-
er’s testimony was not improper. Second, in its memo-
randum of decision, the court referred to Gallagher’s
testimony ‘‘that the phrases ‘all lives matter’ and ‘Black
on Black crime’ can be seen as racist tropes indicating
that individuals who use those phases may hold racist
attitudes,’’ and credited his testimony on those points.
‘‘[T]he trial court is free to accept or reject, in whole
or in part, the evidence presented by any witness, having
the opportunity to observe the witnesses and gauge
their credibility. . . . This court defers to the trial
court’s discretion in matters of determining credibility
and the weight to be given to a witness’ testimony.’’
(Internal quotation marks omitted.) L. K. v. K. K., 226
Conn. App. 279, 309–10, A.3d (2024).
Nevertheless, even without Gallagher’s testimony,
there was other evidence before the court to support its
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determination that there was probable cause to believe
that the defendant’s actions and/or statements were
motivated by race. First, the court viewed video
recordings of the incident, which showed that the defen-
dant left her initial position and walked over to the
plaintiff and stood by her. This occurred right after the
plaintiff began expressing her support for the Black
Lives Matter movement by shouting into her mega-
phone, ‘‘Black Lives Matter’’ and similar slogans.
Although the court credited the defendant’s testimony
that the reason she moved toward the plaintiff was
because ‘‘she was concerned that [the plaintiff’s] loud
shouts regarding Black Lives Matter were overshadow-
ing what [the defendant] understood as the protest’s
intended purpose of espousing support for the medical
freedom movement,’’ the exchange between the plain-
tiff and the defendant quickly became contentious when
the defendant expressed disagreement with the plain-
tiff’s views and asked her about ‘‘Black on Black crime.’’
That was compounded by the fact that the defendant
used the phrase ‘‘all lives matter,’’10 which, in combina-
tion with the defendant’s question about ‘‘Black on
Black crime,’’ could suggest a level of racial animus on
behalf of the defendant. Given these circumstances, the
court reasonably could have determined that a person
of ordinary judgment could conclude that the conduct
of the defendant, a white woman, in spitting on the
plaintiff, a Black woman, was motivated in substantial
part by race.
10
‘‘The phrase ‘All Lives Matter’ gained popularity in response to the
growth of the Black Lives Matter movement . . . a social movement pro-
testing violence against Black individuals and communities, with a focus
on police brutality.’’ B.B. v. Capistrano Unified School District, Docket No.
8:23-CV-00306 (DOC/ADS), 2024 WL 1121819, *4 n.4 (C.D. Cal. February 22,
2024). ‘‘ ‘[A]ll [L]ives [M]atter’ ’’ can be seen as an offensive response to
Black Lives Matter because that phrase obscures ‘‘the fact that [B]lack
people have not yet been included in the idea of ‘all lives.’ ’’ D. Victor, ‘‘Why
‘All Lives Matter’ is Such a Perilous Phrase,’’ (July 15, 2016), available at
https://www.nytimes.com/2016/07/16/us/all-lives-matter-black-lives-mat-
ter.html (last visited August 8, 2024).
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The defendant is correct that, for the plaintiff to
receive treble damages under § 52-571c following a trial
of this matter, she must establish at trial that, when
the defendant spit on the plaintiff, she did so with the
specific intent to intimidate or harass the plaintiff and
was motivated in whole or in substantial part by the
plaintiff’s race. See General Statutes § 53a-181k (a).
General Statues § 53a-3 (11) provides that ‘‘[a] person
acts ‘intentionally’ with respect to a result or to conduct
described by a statute defining an offense when his
conscious objective is to cause such result or to engage
in such conduct . . . .’’ It follows that, at a trial on
this matter, the plaintiff will have to establish, by a
preponderance of the evidence, that the defendant’s
motivation and intent during the incident meet those
requirements. The present case, however, involves an
application for a prejudgment remedy, under which the
evidentiary standard is that of probable cause, which is
lower than the preponderance of the evidence standard
that must be met at trial. See TES Franchising, LLC
v. Feldman, supra, 286 Conn. 137 (‘‘ ‘[p]roof of probable
cause as a condition of obtaining a prejudgment remedy
is not as demanding as proof by a fair preponderance
of the evidence’ ’’).
As we have stated, ‘‘a prejudgment remedy hearing
is not contemplated to be a full scale trial on the merits,
which necessarily will mean that the evidence pre-
sented at the hearing will not be as well developed as
it would be at trial . . . .’’ Id., 143. At such a hearing,
a plaintiff need only establish ‘‘that there is probable
cause to sustain the validity of the claim’’; (internal
quotation marks omitted) Calfee v. Usman, 224 Conn.
29, 37, 616 A.2d 250 (1992); and the probable cause
standard ‘‘does not demand that a belief be correct or
more likely true than false.’’ (Internal quotation marks
omitted.) Landmark Investment Group, LLC v. Calco
Construction & Development Co., supra, 141 Conn.
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App. 49. In fact, the trial court in the present case noted
that it was not expressing a ‘‘view on whether the facts
found by the court . . . meet the standard of prepon-
derance of the evidence.’’
As previously stated in this opinion, probable cause,
for purposes of an application for a prejudgment rem-
edy, ‘‘is a flexible and common sense standard.’’ (Inter-
nal quotation marks omitted.) TES Franchising, LLC
v. Feldman, supra, 286 Conn. 137. ‘‘The legal idea of
probable cause is a bona fide belief in the existence of
the facts essential under the law for the action and
such as would warrant a [person] of ordinary caution,
prudence and judgment, under the circumstances, in
entertaining it.’’ (Internal quotation marks omitted.) Id.
In the present case, the court applied that standard and
determined that there was probable cause to conclude
that the defendant violated §§ 52-571c and 53a-181k,
which supported its determination to treble the dam-
ages. Viewing the evidence before the court in the light
most favorable to the plaintiff, we conclude that it was
not clear error for the court to find that there was
probable cause to conclude that the defendant’s actions
were motivated in whole or substantial part by the
plaintiff’s race.
III
The defendant’s final claim is that the court commit-
ted plain error in granting the plaintiff’s application for
a prejudgment remedy in a case involving freedom of
speech and first amendment principles. The defendant
argues that, ‘‘given the importance of freedom of speech
and expression in the United States, decisions involving
speech acts ought to be decided by juries, and not, as
here—even in the limited fashion afforded by a prejudg-
ment remedy—in a preliminary hearing decided by a
judge.’’ The defendant acknowledges that this claim is
unpreserved and raises it pursuant to the plain error
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doctrine. In making the claim, the defendant relies on
the decision of the United States Supreme Court in
Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106,
216 L. Ed. 2d 775 (2023), which is a case involving
true threats of violence. In Counterman, ‘‘[t]he question
presented [was] whether the [f]irst [a]mendment still
requires proof that the defendant had some subjective
understanding of the threatening nature of his state-
ments.’’ Id., 69. In holding that it does, the court
explained that ‘‘a mental state of recklessness is suffi-
cient,’’ and that ‘‘[t]he [s]tate must show that the defen-
dant consciously disregarded a substantial risk that his
communications would be viewed as threatening vio-
lence. The [s]tate need not prove any more demanding
form of subjective intent to threaten another.’’ Id.
According to the defendant, the trial court in the present
case ‘‘applied an objective standard in determining the
intent of the defendant when making what the plaintiff’s
expert contend[ed] were racially charged comments.
These comments were used to infer the intent behind
the spitting. . . . [T]his use of an objective standard is
unsustainable under Counterman . . . [and] it should
be a jury, not the court, that decides an issue penalizing
political speech.’’
The plaintiff counters that ‘‘the words a person utters
are properly used as evidence to determine intent and
motive’’ and that, nonetheless, ‘‘spit is not speech’’ and
the present case is not a threatening speech case. The
plaintiff further asserts that ‘‘the defendant was not
arrested for shouting ‘All lives matter’ or ‘Black on Black
crime.’ . . . She . . . is being sued for assaulting the
plaintiff with bodily fluids,’’ and that, even though her
‘‘words were . . . used as evidence of motive,’’ that
was ‘‘entirely appropriate.’’ In support of this claim, the
plaintiff relies on Wisconsin v. Mitchell, 508 U.S. 476,
489, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), in which
the United States Supreme Court held that ‘‘[t]he [f]irst
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[a]mendment . . . does not prohibit the evidentiary
use of speech to establish the elements of a crime or
to prove motive or intent. Evidence of a defendant’s
previous declarations or statements is commonly admit-
ted in criminal trials subject to evidentiary rules dealing
with relevancy, reliability, and the like.’’
We begin with a brief discussion of the plain error
doctrine. ‘‘The plain error doctrine is based on Practice
Book § 60-5, which provides in relevant part: The court
shall not be bound to consider a claim unless it was
distinctly raised at the trial or arose subsequent to the
trial. The court may in the interests of justice notice
plain error not brought to the attention of the trial court.
. . . The plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . A party cannot prevail under [the] plain error [doc-
trine] unless [he] has demonstrated that the failure to
grant relief will result in manifest injustice.’’ (Internal
quotation marks omitted.) Lafferty v. Jones, 225 Conn.
App. 552, 572 n.26, 316 A.3d 742 (2024). ‘‘[The plain
error] doctrine . . . is an extraordinary remedy used
by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental
proportion that they threaten to erode our system of
justice and work a serious and manifest injustice on
the aggrieved party. . . . [T]he plain error doctrine is
reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . Plain error is a doctrine
that should be invoked sparingly.’’ (Internal quotation
marks omitted.) M. C. v. A. W., 226 Conn. App. 444, 448
n.4, A.3d (2024). The defendant cannot prevail
on her claim under the plain error doctrine unless she
demonstrates ‘‘the existence of an error that is obvious
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in the sense of not debatable. . . . [T]his inquiry entails
a relatively high standard, under which it is not enough
for the defendant simply to demonstrate that [her] posi-
tion is correct. Rather, the party seeking plain error
review must demonstrate that the claimed impropriety
was so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal.’’ (Internal quotation
marks omitted.) Marafi v. El Achchabi, 225 Conn. App.
415, 438, 316 A.3d 798 (2024). On the basis of the record
before us and for the following reasons, we conclude
that the defendant has not ‘‘met the stringent standard
for relief pursuant to the plain error doctrine.’’ (Internal
quotation marks omitted.) Lafferty v. Jones, supra,
572 n.26.
First, the defendant’s reliance on Counterman is mis-
placed, as the facts of Counterman easily differentiate
it from the present case. In Counterman, a defendant
sent Facebook messages to a woman over a period of
two years, some of which ‘‘envisaged harm befalling
her . . . .’’ Counterman v. Colorado, supra, 600 U.S.
70. The messages caused the woman to be fearful she
would get hurt and to suffer from severe anxiety. Id.
The defendant was charged criminally under a Colorado
statute that makes ‘‘it unlawful to [r]epeatedly . . .
make . . . any form of communication with another
person in a manner that would cause a reasonable per-
son to suffer serious emotional distress and does cause
that person . . . to suffer serious emotional distress.’’
(Internal quotation marks omitted.) Id. After the defen-
dant was convicted, he appealed, eventually to the
United States Supreme Court, which held that, although
‘‘[t]rue threats of violence . . . lie outside the bounds
of the [f]irst [a]mendment’s protection’’; id., 72; the first
amendment nevertheless requires the state to ‘‘prove
in true-threats cases that the defendant had some under-
standing of his statements’ threatening character.’’ Id.,
73. In contrast, the present case involves allegations
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Prescott v. Gilshteyn

against the defendant for her conduct in spitting on
the plaintiff, not for a verbal threat. The defendant’s
statements, made just prior to the spitting incident,
were used by the court solely to help determine her
intent at the time of the incident and whether she was
motivated in whole or part by the plaintiff’s race, which
is consistent with Wisconsin v. Mitchell, supra, 508 U.S.
489; crucially, they were not construed as conduct in
and of themselves. Nor can the defendant’s statements
be characterized as true threats of violence, which are
‘‘ ‘serious expression[s]’ conveying that a speaker
means to ‘commit an act of unlawful violence,’ ’’ and
‘‘subject individuals to ‘fear of violence’ and to the many
kinds of ‘disruption that fear engenders.’ ’’ Counterman
v. Colorado, supra, 74.
Moreover, the defendant’s argument that the prejudg-
ment remedy hearing should have been decided by a
jury, not the court, because first amendment issues are
implicated is equally unavailing. The defendant pro-
vided no authority in support of this assertion. Prejudg-
ment remedies are governed by statute. See General
Statutes § 52-278a et seq. Those statutes specifically
require that an application for a prejudgment remedy
be directed to the Superior Court; General Statutes § 52-
278c; and that a party shall have a right to a hearing
on such application, which is limited to a determination
by a court of certain factors. General Statutes § 52-278d.
There are no exceptions within the relevant statutes
for cases involving first amendment issues. Conse-
quently, the defendant has not demonstrated ‘‘that the
claimed impropriety was so clear, obvious and indisput-
able as to warrant the extraordinary remedy of rever-
sal’’; (internal quotation marks omitted) Marafi v. El
Achchabi, supra, 225 Conn. App. 438; and her plain
error claim, therefore, fails.
The judgment is affirmed.
In this opinion the other judges concurred.