S20N-CR10-0127478S : SUPERIOR Court:

STATE OF CONNECTICUT : JUDICIAL DISTRICT OF: STAMFORD/ NORWALK

:V. : G.A. #20 NORWALK

:TERI BUHL : APRIL 1, 2013

MOTION TO SET ASIDE VERDICT AND ENTER A JUDGMENT OF ACQUITTAL

The Defendant, TERI BUHL, pursuant to P.B. § 42-51, the First, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution, Article First Section 4, 8 and

9 of the Connecticut Constitution, and State v. Avcollie,178 Conn. 450, 455 (1979),

respectfully moves this honorable Court to set aside the verdict in the above captioned

matter and enter a judgment of acquittal on all remaining counts. The Defendant relies

on the following facts and applicable law in support of her Motion.

I. Facts

a. Procedural History

The Defendant in the above captioned matter was charged with Harassment in

the 2nd Degree in violation of C.G.S.§  53a-183, Breach of the Peace in the 2nd Degree in

violation of C.G.S.§  53a-181 and Interfering With an Officer in violation of C.G.S. §

53a-167a. She pled “not guilty” and elected a Bench Trial. She was tried on March 22,

2013. When the Prosecution rested, Defense Counsel moved for judgment of acquittal

on all counts, and said motion was denied by the Court. See Transcript of State v. Teri

Buhl, March 22, 2013, at 99 (hereinafter referred to as Tr. followed by the page

number(s)). Defense Counsel thereafter indicated that the Defendant would not be

introducing evidence, and that she would not be testifying. The Court found the

Defendant not guilty of Interfering With an Officer, but did find her guilty of Harassment

in the 2nd Degree, and Breach of Peace in the 2nd Degree. Tr. at 137. Bond was

increased by the Court upon being informed that the Defendant was not ready to

proceed to Sentencing at that time, and Sentencing was set for March 25, 2013.

Counsel appeared as scheduled, and new Counsel Stephan Seeger entered an

additional appearance. New Counsel requested a further continuance in order to

prepare post verdict motions. The Court granted said continuance, and this Motion to

Set Aside, along with a Motion for New Trial were filed by April 1, 2013, pursuant to the

Court’s scheduling order.

b. Trial Backdrop: Limitations on Admissibility of Facebook Evidence

During Ms. Brody’s testimony, she referred to various Facebook functions and

features, including “tagging,” privacy settings, Member page access restrictions,

“comments,” and picture viewing. Notably, the Court placed the parties on notice that it

had little familiarity with Facebook and its mechanics,1 When “privacy settings” were

brought up in Ms. Brody’s testimony, the Court (as a trier of fact) made it known that it

did not “understand” what was being asked of the witness. Tr. at 21-22. Despite this

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1  A%er  viewing  State's  Exhibit  3,  s8pulated  to  by  the  par8es  as  a  copy  of  the  Facebook  Page  belonging  to  Tasha  Moore,  the  Court  goes  on  to  state:    “I  should  forewarn  Counsel,  I  don’t  keep  a  Facebook  page,  so  please  feel  free  to  explain  the  significance  of  different  Facebook  issues  as  we  get  to  them  because  I  will  not  necessarily  appreciate  them.”    Tr.  at  14,  ll.  4-­‐11.    It  appears  clear  that  Defense  Counsel  placed  the  Court  on  No8ce  of  a  con8nuing  objec8on  that  the  State  wished  to  connect  its  admissible  evidence,  to  inadmissible  Facebook  evidence  from  third  par8es  not  qualified  to  offer  the  same.    For  example,  Counsel’s  hearsay  objec8on  preceding  the  admission  of  State’s  Exhibit  1,  the  Cablevision  document  provided  to  Police  purpor8ng  to  establish  that  a  par8cular  IP  address  was  registered  to  the  Defendant’s  account.    Since  it  is  the  State  who  bears  the  burden  of  proof  in  a  criminal  case,  any  holes  in  tes8mony,  or  lack  of  clarity  on  the  subject  maVer  of  Facebook  must  be  imputed  to  the  State,  and  inferences  drawn  upon  insufficient  tes8mony  regarding  a  complex  subject  maVer  such  as  Facebook,  ought  not  to  be  draw  simply  because  the  record  permits  the  same.    Where  the  record  is  incomplete,  or  there  is  reason  to  put  an  expert  on  the  stand  to  explain  the  complexi8es  ab  ini8o,  the  fact  that  an  inference  can  be  drawn,  does  not  mean  it  ought  to  be  drawn,  or  that  it  is  otherwise  the  type  of  inference  that  can  be  used  in  determining  proof  beyond  a  reasonable  doubt.    See  e.g.,  State  v.  Dullivan,  cited  here,  n.9  (dis8nguishing  inference  from  strong  inference).

warning, the State chose not to put forth a Facebook representative, or any other

expert, to establish requisite foundation and/or otherwise authenticate any Facebook

evidence it sought to introduce. Thus, the only record evidence addressing the

complexities of Facebook, emanated from Ms. Brody’s lay testimony, which she

confirmed was “her perspective.” Tr. at 21. The Court reiterated its position elsewhere

in Ms. Brody’s testimony, clarifying State’s Exhibit 3, stating: “[so let me just make sure

I understand because like I said, I’m not familiar with Facebook. State’s Exhibit 3 is a

depiction or a copy of someone else’s Facebook page?” Tr. at 14. When the Witness

answered in the affirmative, the Court inquired further, limiting its question to the

Witness’s personal knowledge, asking: “to make sure I appreciate it, what’s your

understanding as to whose Facebook page is being shown in State’s 3?” Tr. 14-15. To

which the Witness replied “Tasha Moore’s Facebook.” Id..

At other points in her testimony, the Court admonished Ms. Brody not to

“assume” but to answer questions about Facebook issues if she knows the answers:

THE Court: Okay. Do you know when you saw the page that was Tasha

Moore’s, do you know what the privacy setting was at the time you viewed it

THE WITNESS: I can only assume that it was . . .

THE Court: I am not asking you to assume, I’m asking you if you know. If

there is a way to tell what someone’s Facebook . . .

THE WITNESS: Yes.

THE Court: . . . privacy is

THE WITNESS: It seemed to be public because I could see it from my

own and I was not friends with her.

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THE Court: Okay.

THE WITNESS: And I could see the same content from my friend’s who

was friends with her.

Tr. at 37. The dialog illustrates that that the Court is asking if there is a way to tell what

somebody’s Facebook privacy setting is. The witness answers indicating her

impression (how it “seemed”). While this constitutes some evidence, if credited, it is not

necessarily weighty enough to substantiate an element such as “publicity,” required for

conviction on a Breach of Peace charge. If on the other hand, an expert from Facebook

came into Court to testify that the manner in which Ms. Brody viewed the posting, was in

fact via a “public” posting, the Court would have reliable, authenticated, evidence of

publicity.

On one of the State’s objections to Defense Counsel’s inquiry into Megan Brody’s

knowledge of “friending” others on Facebook, the Court actually makes its position on

admissibility of Facebook Policy very clear. In overruling the objection and directing

Counsel to rephrase a question for the witness, the Court states that “unless [Counsel]

can qualify this witness, [the Court is] not allowing questions as to the Facebook policy.

I may allow questions as to her understanding tied to the time when she’s viewing

Facebook pages.” Tr. At 39. Notably, this reiteration comes after several instances of

the Court demonstrating a desire to avoid questions calling for an independent and/or

expert Facebook witness. And overall, this position is certainly in keeping with the

Court’s earlier admission that it lacked familiarity with Facebook--clearly implying that

Facebook intricacies require adequate explanation and/or authentication.

It is the position of the Defense that the Court’s Verdict is based on

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misinterpreted, inadmissible and/or otherwise unreliable Facebook evidence, from

which faulty inferences are made possible. In spite of the Court’s outward attempts to

limit Facebook functionality evidence, to the personal non-technical Facebook

knowledge of witnesses, the Court’s reasoning appears to be infected by inferences that

would require expert testimony, which the State did not provide in this case (in spite of

the Court’s obvious intention to limit Facebook testimony and guard against

inadmissible hearsay and/or authentication issues). The Court’s dialog with Attorney

DiScala at the close of Trial seems to illustrate that the Court makes several unfounded

inferences, unsupported by the evidence in the record, including: (1) the Defendant

being in possession of the mailed materials at the time of the posting was to the

exclusion of all others, which can generate a reasonable inference that she must

therefore have actually posted, (2) that the posting was done from an IP address linked

to the Defendant, and (3) that alternative means of posting on Facebook other than from

the Defendant’s IP address are not possible. See infra, Sect II a-c, pp. 7-19.

c. Evidence at Trial Trial

At Trial, the State advanced evidence confirming that one victim, Megan Brody,

was informed by a friend that disparaging comments about her were posted on

Facebook, on a page purporting to be authored by “Tasha Moore.” Tr. 3/22/13, at 9.

Said comments, more particularly, were posted on Tasha Moore’s Facebook “page.”

Upon learning of the posting, Megan Brody claims that she accessed the Tasha Moore

posting via a friend’s Facebook “page.” Tr. 3/22/13, at 9, 14-15. In fact she could only

view these statements through this friend’s Facebook “page.” Tr. 3/22/13, at 23.

According to Ms. Brody, she was not able to see these comments directly, because only

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“private invitations” would allow her to see Tasha Moore’s Facebook “page.” Tr. at 23.

When she looked at Tasha Moore’s Facebook “page,” she noticed that it contained

images of copies of pages from her diary. Tr. at 10. Ms. Brody also testified that she

was “tagged” in something on Facebook and this tagged material referred to her as

someone who gets “drunk at parties,” is an “easy hook up,” and that she “gave a

blowjob” to someone. Tr. at 15. After seeing Tasha Moore’s “page” and comments, Ms.

Brody was “really upset,” and “too upset to go out” that night, based upon her exposure

to the posting. Tr. at 12, 16.

When asked further “did [the comments] affect [her] in any other way?” Ms. Brody

replied that she was worried that others may see these comments, and that she was

“too upset to deal with it.” Tr. at 16. After seeing the comments, Ms. Brody decided to

contact “Tasha Moore” through Facebook the following day, asking her to take down the

comments, or she would go to the police. Tr. at 17. That same day Ms. Brody took

copies of these comments, and brought them to the New Canaan Police. Tr. at 17-18.

Immediately after she visited the police, she notified her parents about what was

happening. Tr. at 19. There was no evidence to suggest that either parent learned

about the events, or any fact pertaining to their daughter’s report, from any other source

prior to the time they were informed by her. Essentially, it was their own daughter who

made them aware of the facts surrounding the commentary and diary pages being

posted by “Tasha Moore.” The evidence suggested that neither Ms. Brody, nor her

parents, knew who this person was.

State’s evidence established that Ms. Brody, went to the Police without her father

initially; she informed her father about what happened, and the events surrounding her

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going to the police station, and the following day, or shortly thereafter, he accompanied

her back to the Police Station, after receiving an anonymous mail delivery at the “end of

the day on Thursday [June] 24th,” which included copies of pages from his daughter’s

diary, along with an unsigned note. Tr. at 44. Mr. Brody claimed to be “shocked and

surprised” or “outraged,” by the contents of the package. Tr. at 45. After receiving the

package, Mr. Brody informed the Defendant (whom he was dating at the time) about

these events. Tr. at 46. Two days later the Defendant told Mr. Brody that she was

contacted by someone (a female) who knew Ms. Brody, stating she was concerned

about his daughter, and at that point the person gave the contents of the mailing he

received to her, including copies of the diary pages. Tr. at 56. When pressed for her

“source,” the Defendant refused to reveal the name to Mr. Brody. Tr. at 56. Notably,

Mr. Brody testified that he expected the Defendant to help him by providing the source

to him, however, the Defendant indicated that she wold not give up her source.

At no time did the Defendant admit to acting under the name of “Tasha Moore” or

of posting anything on Facebook. Tr. at 74.

The State further offered testimony of Seargent Ogrinc (an investigating

Detective), who testified that during the investigation of this case, he executed two ex

parte orders – one for Facebook and one for Cablevision. Tr. at 80. Ogrinc did not

identify for the Court what exactly she obtained from Facebook, and whether or not she

was able to link “Tasha Moore’s” Facebook activity to the Defendant. Tr. at 82, 84-85.

She was able to tell the Court that she obtained an “IP” address from Cablevision, that

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was associated with an account held in Defendant’s name. Tr. at 82.2 Finally, the State

offered evidence through a Cablevision representative that showed that an “IP” address

existed and that it was connected with one of their clients, who happened to be the

Defendant. Tr. at 3.

II. Law and Argument

Pursuant to P.B. §42-51, if a trier of fact returns a “verdict of guilty, the judicial

authority, upon motion of the Defendant or upon its own motion, shall order the entry of

a judgment of acquittal as to any offense specified in the verdict… for which the

evidence does not reasonably permit a finding of guilty beyond a reasonable doubt.”

Moreover, the Court has an inherent, common law power to set aside a verdict.

See Bartholomew v. Clark, 1 Conn. 472, 480 (1816). The Connecticut Supreme Court

has reaffirmed the continuing vitality of this mechanism. See, e.g., State v. Avcollie, 178

Conn. 450, 455 (1979) (stating “the trial Court’s power to set aside a verdict is inherent

”); see also, Palomba v. Gray, 208 Conn. 21, 23-24 (1988). Thus, a trial Court always

has “the power to set aside a [ ] verdict that, in its opinion, is contrary to either the law or

the evidence.” State v. Weiner, 61 Conn.App. 738, 743 (2001). Moreover, the Court

should set aside the verdict where “the manifest injustice of the verdict is so plain and

palpable as clearly to denote that some mistake was made by the [trier of fact] in the

application of legal principles.” State v. McCarthy, 105 Conn.App. 596, 601 (2008).

When a verdict is challenged on the ground of insufficient evidence, the

Defendant’s due process rights under the Fourteenth Amendment to the United States

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2 It should also be noted that the State did not put on any “expert” testimony that would explain to the trier of fact what an “IP” address is, how it works and what its significance is.

Constitution are implicated, as the Constitution “protects a criminal defendant from

conviction absent proof beyond a reasonable doubt of each fact necessary to constitute

the elements of the crime.” See State v. Watts, 71 Conn. App. 27, 31 (2002), citing In re

Winship, 397 U.S. 358, 364 (1970). The applicable test on motion to set aside the

verdict based on insufficient evidence is “whether the [trier of fact] could reasonably

have concluded, upon the facts established and the inferences reasonably drawn

therefrom, that the cumulative effect of the evidence established guilt beyond a

reasonable doubt.” Avcollie, at 457-58, citing State v. Chetcuti, 173 Conn. 165, 172

(1977). In the end, the verdict must be set aside if the evidence was insufficient to

justify a finding of guilty beyond a reasonable doubt. See State v. Hicks, 169 Conn.

581(1975).

a.Harassment in the Second Degree

Pursuant to C.G.S. §53a-183(a)(2), “[a] person is guilty of harassment in the

second degree when … with intent to harass, annoy or alarm another person, he

communicates with a person by telegraph or mail, by electronically transmitting a

facsimile through connection with a telephone network, by computer network, as

defined in section 53a-250, or by any other form of written communication, in a manner

likely to cause annoyance or alarm.” Unlike the crime of Breach of Peace, Harassment

is not a threatening language crime and is predicated on conduct. See State v.

Moulton, 120 Conn.App. 330, 345 (2010). Notably, where the State prosecutes the

Defendant on the basis of the content of her communication, the Defendant’s First

Amendment rights are implicated, and the statute becomes “unconstitutional as applied

to the defendant.” Id., at 337; see also, State v. LaFontaine, 128 Conn.App. 546,

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555-56 (2011). More specifically, “General Statutes § 53a-183 (a)(2) prohibits

communications by mail that are made ‘with intent to harass, annoy or alarm’ and ‘in a

manner likely to cause annoyance or alarm . . ..’ Thus, § 53a-183 (a)(2) proscribes

harassing conduct via mail and does not seek to regulate the content of

communications made by mail.” State v. Murphy, 254 Conn. 561, 568 (2000) citing

State v. Snyder, 49 Conn. App. 617, 625 (1998) (emphasis added).

i.Evidence Did Not Permit a Finding of Guilty Beyond a Reasonable Doubt

At Trial, the evidence put on by the State did not permit a finding of guilt beyond a

reasonable doubt on the charge of violating C.G.S. §53a-183(a)(2). The two possible

instances of harassment were the Facebook posts by Tasha Moore, and the mailing of

copies of Ms. Brody’s diary to Mr. Brody by the Defendant. Neither instance is

supported in the evidence.

With respect to the Facebook posts, the State was never able to “link up” Tasha

Moore and the Defendant. All that was elicited from Sgt. Ogrinc and the Cablevision

representative was that during an investigation the police obtained an IP address from

Cablevision that matched that of the Defendant. That IP address was never linked up to

Tasha Moore or the computer from which the posts in question were made. However, in

addition to the “linking” the Court seems to have “connected” the Defendant to Tasha

Moore by her conduct in disclosing to Mr. Brody, that she in fact mailed the diary pages

to him. The Court seems to have relied on her two day delay in letting Mr. Brody know

about this, and her reluctance to reveal her “source” (all of which are consistent with her

professional duties and obligations as a reporter to protect her sources).

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Even if Tasha Moore could somehow be connected to the Defendant, the

evidence at trial revealed that these posts were not addressed or sent in any way to Ms.

Brody, and that she found this out only from someone else who saw them on Facebook.

Thus the evidence did not satisfy the statutory elements of communicating with the

victim “in a manner likely to cause annoyance or alarm” or “with intent to harass, annoy

or alarm” her. The method of communicating in this case was simply not designed to

reach her, and did not evidence any intent to do so. There simply was no evidence to

support the requisite specific intent to harass Ms. Brody through Facebook. There was

no motive or explanation as to why Tasha Moore (or the Defendant) would post the

material at issue.

On the other hand, evidence was consistent with someone other than the

Defendant posting comments on Facebook and around the same time, according to the

Defendant’s statements to Mr. Brody, providing her with the same kind of information,

which she in turn chose to disclose to Ms. Brody’s father out of concern, but in an

anonymous manner, that would allow her to maintain her professionalism as a member

of the press.3 Thus, the trier of fact had before it a theory “consistent with the innocence

of the accused” and therefore could not find her “guilty” beyond a reasonable doubt.

See State v. Lemoine, 256 Conn. 193, 205 (2001) (jury instructed on reasonable doubt

as “[i]f you can in reason reconcile all of the facts proven with any reasonable theory

consistent with the innocence of the accused, then you cannot find him guilty…”).

Moreover, the Court (as a trier of fact) never had the benefit of expert testimony

regarding the use of Facebook and methods of communication in that social medium.

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3 Connecticut expressly protects members of the press from compelled disclosure. See C.G.S. § 52-146t, see also, Branzburg v. Hayes, 408 U.S. 665 (1972)

This is all the more poignant in light of the Court’s own admission and warning to the

parties that it needed assistance in this matter to “appreciate” the issues involved. See

supra, pp. 2-4 & n.1. Thus the trier of fact in this case was left without necessary

guidance on how Facebook functions, which was a necessary stepping stone to

determining whether or not the communications were directed to the victim, and if so,

whether these communications in any way indicate the poster’s intent to harass.

Similarly, expert testimony on the complexities of Facebook would be necessary to

prove who made the posts on Facebook. As our Appellate Court recently stated,

an electronic communication, such as a Facebook message … could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged into their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship.” State v. Eleck, 130 Conn.App. 632, 638-39 (2011).

Consequently, lack of expert testimony in this case deprived the trier of fact of evidence

sufficient to convict the Defendant of harassment in the second degree by use of

Facebook.

Moreover, under Eleck, authorship by Terri Buhl cannot be established as a

matter of law, even if there was evidence that a posting emanated from a particular

account associated with an IP address assigned to her; the only evidence remotely

close to linking the message to Terri Buhl, is that she had an IP address, which was

assumed to be the same as one which came back to Detective Orgrinc pursuant to an

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ex parte order4 which produced Facebook information. This information was not

authenticated--and remained at all material times, rank hearsay.

Regardless, however, even if we assume the origin of the posting is established

by inference based on IP evidence, which it is not, our Appellate Court has clearly held

that a message coming from a particular account is insufficient, without further

authenticating evidence proving authorship. Id. The general unfamiliarity with

Facebook, and the Court’s seeming attempt to permit an inference of authorship

through the State’s evidence that an IP address belonging to Teri Buhl was something

the Police investigated in connection with an ex parte warrant for “Tasha Moore”

information, demonstrates a two-fold problem. Firstly, there is no expert testimony

explaining the workings of IP addresses in connection with Facebook accounts, and

anything that could come close to this would need to be authenticated by someone

other than a police officer, who simply received records an investigated in a particular

direction thereafter. Secondly, our Court of Appeals clearly states that “proving only that

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4 There can be little doubt that the State attempted to circumvent obvious hearsay issues which had been addressed by Defense Counsel, and arguably even by the Court, during the cross examination of Detective Ogrinc. The State purported to be introducing evidence of a “link” between an IP address confirmed by Cablevision to belong to Terri Buhl, supported by State’s Exhibit 1, for the limited purpose of demonstrating how responses to ex parte Order information, prompted the officer to act in her investigation. See generally, Tr. pp. 79-85. Presumably, this was done in order to set up an inference, albeit impermissible because it would require the Court’s consideration of rank hearsay, that since she continued to investigate the Defendant in connection with information about Tasha Moore’s IP address, it must follow that the addresses were linked. Notably, however, all that was established was this Detective sought an Order for “Tasha Moore” Facebook information, Tr. at 80, that she sought and received Cablevision information establishing an IP address belonging to Teri Buhl, Tr. at 82, and that said IP address was what she was investigating, Id.. The Court did not admit an answer to the State’s question whether the IP addressed assigned to Tasha Moore was the IP address assigned to Teri Buhl. Tr. at 84, ll 11-13. It was objected to by Counsel clearly, and claim of relevance did not rescue the State’s attempt to extract an answer, since the Court noted that the witness had already established that she “received information back, and she continued her investigation based on that information.” Tr. at 85, ll. 10-14. What is unclear, is whether the Court has discounted this evidence, in making inferences about authorship. In argument, the Court spends a significant amount of time soliciting answers from Defense Counsel, which suggest that the Court could infer from the record that the “link” was established. To that extend, the same would violate the Defendant’s Confrontation rights, and ignore Eckel.

a message came from a particular account, without further authenticating evidence, has

been held to be inadequate proof of authorship. Id (emphasis added). Thus, there can

be little doubt that to admit Facebook account information as evidence, especially

without proper authentication, violates the Defendant’s Confrontation Rights under both

the State and Federal Constitutions, and clearly ignores the guidance in Eckel5.

The Court seems to suggest that other evidence exists by which a permissible

inference could be made, that the Defendant posted the offensive material, and

therefore, the further inference that “harassment” or “annoyance” was intended. The

claim appears to be that the Defendant possessed the material at the time the posting

occurred; namely, at around 5pm on June 23, 2011, and from this fact, the Court can

reasonably infer that she also posted the material—essentially, the Court asks what

evidence is there that anyone else could have done the posting? See Tr. at 112-13

(noting Defendant had access at 5pm the previous day when the posting appears to

have been done). This leap from possession to posting is simply inadequate to

conclude beyond a reasonable doubt, that the Defendant is Tasha Moore, the author of

the posting. In and of itself, the Court would have to make the conclusion that

possession as claimed, ipso facto, proves posting beyond a reasonable doubt. The

Defendant argues that such a finding is not supported by the evidence, and therefore,

the Court would not need to know the hypothetical answer pertaining to “who else.” If

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5 The Court does imply elsewhere, that if the attempted “link” evidence were ignored, that a reasonable juror could find that the Defendant’s possession of the mailed material at 5:00pm the night prior to Mr. Brody’s receipt of her mailing, would prove she authored the posting. See generally, Tr. 112 to 115. While this position is addressed elsewhere herein, infra at pp. 19-20, it is noted here, to establish that the Court’s only viable consideration of such a link must come in the form other evidence--non-Facebook/IP related evidence, which is plagued by inadmissibility issues. The “possession” to “posting” inferences is the only other possibility addressed by the Court in its inquiry, and would comprise the only evidence available for the Court to make an inference that “Teri Buhl” is “Tasha Moore” and therefore, the guilty verdicts are sustainable.

possession cannot produce posting beyond a reasonable doubt, the question is

academic. There has been no finding, by this Court that the same has been proven

beyond a reasonable doubt, even though the question has been canvassed. In fact, it

would imply a burden on the defense to prove an alternative, to one which could never

hope to have been established beyond a reasonable doubt in the first place. The same

would constitute impermissible “burden shifting,” contrary to the Defendant’s State and

Federal Constitutional rights to Due Process of Law.

In order to determine guilt as to Harassment of Megan Brody, the State must

prove that the Defendant posted, that she is “Tasha Moore,” or they cannot find the

requisite element of communication/posting. This is a necessary element of the proof

required for the finding. The Constitution “protects a criminal defendant from conviction

absent proof beyond a reasonable doubt of each fact necessary to constitute the

elements of the crime.” See State v. Watts, 71 Conn.App. 27, 31 (2002), citing In re

Winship, 397 U.S. 358, 364 (1970). Clearly, no such finding has been made, or could

be made, beyond a reasonable doubt.

With respect to the Defendant’s anonymous mailing of Ms. Brody’s diary pages to

her father, the State did not put forth sufficient evidence to prove that the Defendant

sent this material with the intent to harass Mr. Brody or his daughter. There was no

evidence of motive to harass. Secondly, evidence clearly established that Mr. Brody

was first informed of the events of the posting, when his daughter called him

immediately after reporting the posting to the police, at a time when he was not in

possession of any mailed materials. This first exposure generates his feelings and

reactions, and the same cannot be used as circumstantial evidence of any intent by the

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Defendant to harass via the mailing--the mailing is subsequent to his initial discovery of

the incident. There was nothing particularly “alarming” in the Defendant’s use of mail

services to deliver the package to Mr. Brody. The contents themselves were copies of

Ms. Brody’s own words and a note from the Defendant’s source who was concerned

with Ms. Brody’s behavior—information which he was already familiar with from his

daughter having relayed the same immediately after she first spoke to Officer Gulino.

Contrariwise, the evidence points to the reasonable hypothesis that the

Defendant chose this method of communication to alert Ms. Brody’s father to his

daughter’s “problems,” and at the same time, honor her professional obligation to her

source. She heard him express how distraught he was over the issue of the posting, at

a dinner, prior to the Defendant disclosing she was the anonymous mailer. One can

readily and reasonably infer that she reacted out of sympathy to him, and tried to

alleviate his suffering in the best way she could, under the circumstances. She had no

motive to harass her boyfriend with whom she shared a relationship of trust and

affection, one which was by all evidentiary accounts wholly non-tumultuous. See

generally, Tr. at 43 (relationship was good, she had access to his home, she resided

with him), Tr. at 52 (relationship was good, he trusted her), Tr. at 58 (no outbursts of

hostility, he helped pay for her apartment, helped her with living expenses, and

relationship was good all the way up the incident), and Tr.at 58 (on redirect by the State,

the relationship was harmonious, open line of communication, no reason to believe she

wouldn’t be open with him).

Ultimately, the evidence suggested that there were no problems in the

relationship prior to the Defendant’s failure to disclose her source—this harmony, along

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with Mr. Brody’s emotional and financial support, is not something that can be

reasonably reconciled with any destructive motive. In short, there is no evidence of a

motive that would justify any intent to harass or annoy, whatsoever. In fact, a

reasonable juror could easily reinforce the conclusion that the Defendant only acted to

protect her source--likely one of the only things that would have interfered with her

being her usual, open and honest self to Mr. Brody. By all accounts, the Defendant had

an obvious interest in preserving her relationship with Mr. Brody, not to harass or annoy

him, and jeopardize all they had between them. There was clear evidence in the record

that the Defendant was a journalist6, that she was working on a story about underage

drinking7, and that she refused to give the name of the individual who provided her with

the contents of the mailing because that individual was a “source.”8 There can be little

doubt in the evidence that Ms. Buhl was an investigative reporter working on a story

about underage drinking, and a reasonable inference is that she would have “sources,”

as a result thereof. Further that she would protect the sources, yet based on a loving

relationship, attempt to warn Mr. Brody of what was going on with his daughter. The

evidence bears this out, and it is a reasonable conclusion to draw. It is reasonable in

light of the evidence, and constitutes an alternative theory of the events in question.

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6 Mr. Brody confirms, Tr. at 54 (journalism industry, worked for Greenwich Time, he knew her to be an investigative journalist).

7 See Tr. at 68, Gulino received some letters about underage drinking, aside from Facebook, and “Ms. Buhl spoke about underage drinking that was going on in New Canaan. She was doing investigative reporting on it.” See also, testimony of Orgrinc, confirming she told press Facebook postings were useful in obtaining information about adult sponsored underage drinkiing parties--herself positing an alternative reason for a Facebook posting such as the one at issue in this case especially for “iphotographs,” “whereabouts,” and “idnetification.” Tr. at 80.

8 Mr. Brody indicated, Tr. at 56, “she had promised to keep that information confidential, and that she did so on more than one occasion,” including his last visit with her where he returned belongings to her; he asked her to reveal the source, and she said she could not.

Only in ignoring this evidence, could the Court find that no other reasonable alternative

explanation existed for the Defendant’s conduct in mailing the materials. Once again,

faced with reasonable alternatives, the trier of fact could not have found the Defendant

guilty beyond a reasonable doubt. See Lemoine, at 205.

! Verdict Was Contrary to the Law

At trial, the State’s theory (as exhibited by the evidence put on and arguments

made by the State to the Court) was that the content of Facebook communications and

the communication by mail to Mr. Brody was so shocking or terrible as to constitute

harassment. The State spent much time eliciting testimony from the Brodys pertaining

to how the letters made them “feel”. As the State stated in argument on the record: the

“communications” in the “emails” and “handwritten letter” were intended to “annoy or

alarm” the Brodys. Tr. at 101.

In addition, the State further referred to the disparaging comments “on the

internet.” Tr. at 102. On the other hand, the actual “methods” of communication in this

case, appear to have remained in the background, and left unexplored and/or

unaddressed by the State. There was a post on Facebook that was clearly not directly

addressed to Ms. Brody. There was an anonymous letter sent to Mr. Brody by ordinary

means. Once Mr. Brody told the Defendant about the distress caused by these events,

the Defendant remedied the situation by disclosure. She did as much as she could in

light of her professional obligations. Thus, the record reveals that the Defendant in this

case, was prosecuted for the content of the communications that are attributed to her,

and not the methods of communication. Consequently her conviction also violates her

First Amendment rights. See Moulton, at 337.

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b. Breach of the Peace in the Second Degree

Pursuant to C.G.S. § 53a-181(a)(4), “[a] person is guilty of breach of the peace in

the second degree when, with intent to cause inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, such person … publicly exhibits, distributes, posts up

or advertises any offensive, indecent or abusive matter concerning any person.”

The United States Supreme Court has long ago spoken on the issue of conduct

that is permissibly punishable by this kind of a statute, when it stated that:

“The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.”

Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940) (emphasis added). Thus,

words or communications punishable under C.G.S.§ 53a-181, must be of the kind that

do not merely “offend” someone, but must give rise to an “immediate threat to public

safety, peace, or order” not to run afoul of the First Amendment. Our Courts have

addressed this issue by putting an “interpretive gloss” on the mens rea language of the

statute. See State v. Wolff, 237 Conn. 633, 669-670 (1996). Specifically, the trier of fact

must determine, beyond reasonable doubt that the defendant’s “predominant intent is

to cause what a reasonable person operating under contemporary community

standards would consider a disturbance to or impediment of a lawful activity, a deep

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feeling of vexation or provocation, or a feeling of anxiety prompted by threatened

danger or harm.” Id., at 670 (emphasis added).

i.Evidence Did Not Permit a Finding of Guilty Beyond a Reasonable Doubt

At trial, the State’s evidence did not permit a finding of guilt beyond a reasonable

doubt on the charge of violating C.G.S. §53a-181(a)(4). The two possible instances of

breach of peace were the Facebook posts by Tasha Moore and the mailing of copies of

Ms. Brody’s diary to Mr. Brody by the Defendant.

With respect to the Facebook posts, the State was never able to link up Tasha

Moore and the Defendant as already discussed supra. However, the Court seems to

have “connected” the Defendant to Tasha Moore by her conduct in disclosing to Mr.

Brody that she in fact mailed the diary pages to him. The Court seems to have relied on

her two day delay in communicating this to him, and her reluctance to reveal her

“source” (all of which are consistent with her professional duties and obligations as a

reporter to protect her sources). To this extent, an inference is being drawn about

conduct that is consistent with this Defendant’s First Amendment and statutory rights,

pertaining to protecting sources. This places a chilling effect on such rights, since the

press would need to fear such inferences being drawn in any criminal case, wherein

due to the confidentiality, no innocent explanation could be espoused. Press would not

be similarly situated, since they could not avail themselves of a defense against such an

inference, without violating confidentiality of sources. This is precisely what the “shield”

statute is designed to prevent.

The Court also appears to claim that the Defendant possessed the material at

the time the posting occurred; namely, at around 5pm on June 23, 2011, and from this

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fact, the Court can reasonably infer that she also posted the material—as if to ask “what

evidence is there that anyone else could have done the posting?” This leap from

possession to posting is simply inadequate to conclude beyond a reasonable doubt, that

the Defendant is Tasha Moore, the author of the posting. In and of itself, the Court

would have to make the conclusion that possession as claimed, ipso facto, proves

posting beyond a reasonable doubt. This would be a necessary fact, requiring proof in

the evidence. The Constitution “protects a criminal defendant from conviction absent

proof beyond a reasonable doubt of each fact necessary to constitute the elements of

the crime.” See State v. Watts, 71 Conn.App. 27, 31 (2002), citing In re Winship, 397

U.S. 358, 364 (1970)(emphasis added). The Defendant argues that such a finding is not

supported by the evidence, and therefore, the Court would not need to answer the

question what evidence there is of anyone else having done the posting. In fact, this

would constitute impermissible “burden shifting” contrary to the Defendant’s State and

Federal Due Process rights. Unless there is a finding that the posting was done by the

Defendant, beyond a reasonable doubt, there is no “alternative” theory analysis

required. The subject to which an alternative would be compared has, ab initio, never

risen into existence.9

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9 The issue is illustrated in the reasoning of the Court in State v. Dullivan, 523 A.2d 1353, wherein the Connecticut Court of Appeals finds impermissible burden shifting in an instruction which implores a jury to draw an inference on circumstantial evidence, if they can do so in a logical and reasonable manner, and if its strong enough that they could find the fact to be inferred was true more probably than not. The strength of the inference must not be separated from its existence, even logical or possible existence. Unless the original proposition rises to the level of having been proven beyond a reasonable doubt, and not just more probable than not, the inference itself is impermissible. Here, the possession to posting is an impermissible inference, against which no other alternative needs to be compared. This Court appears to proceed to step two, deciding reasonable alternatives, while ignoring the weight of the evidence supporting the essential fact required to prove an element of the charges of Harassment and Breach of Peace; namely the posting. Like in Dullivan, there is not “overwhelming” evidence that the Defendant posted the offensive materials on Facebook.

Similarly, there was no evidence to support the requisite specific intent to cause

inconvenience, annoyance or alarm to Ms. Brody (or anyone else) through Facebook.

There was no motive or explanation as to why Tasha Moore (or the Defendant) would

make such a post and in such a way. On the other hand, evidence was consistent with

someone other than the Defendant (Tasha Moore) posting comments on Facebook and

around the same time, according to the Defendant’s statements to Mr. Brody, providing

her with same kind of information, which she in turn chose to disclose to Ms. Brody’s

father out of concern, but in an anonymous manner that would allow her to maintain her

professionalism as a member of the press. As previously discussed supra, the trier of

fact had before it a theory “consistent with the innocence of the accused” and therefore

could not find her “guilty” beyond a reasonable doubt. See Lemoine, at 205. Moreover,

there was no evidence presented that would show, beyond a reasonable doubt, that

Facebook pages are in fact a place where one’s comments are made “publicly.” In fact

testimony revealed that Facebook pages have privacy settings and that not everyone

can view someone’s page since an “invitation” may be required.

Additionally, the Court (as a trier of fact) never had the benefit of expert testimony

regarding the use of Facebook and methods of communication in that social medium

(and the Court admitted as much). Thus the trier of fact in this case was left without

necessary guidance on how Facebook functions, which was a necessary stepping

stone to determining whether or not the communications were such that they were

made in public or in private, or were intended to cause inconvenience, annoyance or

alarm to anyone. Similarly, expert testimony on the complexities of Facebook would be

necessary to prove who made the posts on Facebook. See Eleck, at 638-39.

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With respect to the Defendant’s anonymous mailing of Ms. Brody’s diary pages to

her father, the State did not put forth sufficient evidence to prove that the Defendant

sent this material with the intent to inconvenience, alarm or annoy anyone. There was

no evidence of motive to do so by the Defendant. On the contrary, the evidence points

to reasonable hypothesis that the Defendant chose this method of communication to

alert Ms. Brody’s father to his daughters “problems” and at the same time honor her

professional obligation to her source, choosing the least intrusive and least “alarming” or

publicly humiliating method. Once again, faced with this theory, the trier of fact could

not have found the Defendant guilty beyond a reasonable doubt. See Lemoine, at 205.

More importantly, there was no evidence to suggest that this mailing was made

“publicly” and the State did not even argue this in closing argument. Thus the State’s

Breach of Peace charge was based solely on the Facebook posts made by Tasha

Moore on her own Facebook page.

ii. Verdict Was Contrary to the Law

At Trial, the State elicited testimony from the Brodys about the effect the

Facebook posts and physical letters had on them. Ms. Brody testified that these made

her “really upset.” Mr. Brody testified that he was shocked and surprised” or “outraged.”

Additional testimony from an investigating officer confirmed that Ms. Brody appeared

shaken or upset when he spoke with her. There was no other testimony or evidence as

to the effect these postings and letters had on anyone else. This evidence alone does

not pass muster, for a conviction that is constitutionally sound. There had to be some

likelihood that the statements would produce violence in others, or acts of public

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disorder. See Cantwell, at 308. At the very least, there had to be some evidence to

indicate that the Defendant’s “predominant intent” in making these statements was to

cause “a disturbance to or impediment of a lawful activity, a deep feeling of vexation or

provocation, or a feeling of anxiety prompted by threatened danger or harm.” Wolff, at

670. Mere alarm, annoyance and inconvenience are not enough. Id. There was no

evidence that anyone was obstructed from doing anything, was provoked to do

anything, or felt threatened in anticipation of some future harm.10 The Defendant’s

situation in this case is similar to that of a minister who painted slogans on his property

(in public view), which accused the Jews of murdering Jesus Christ. See  State v.

Hoskins, 35 Conn.Supp. 587 (1978). In that case, the Court held that the evidence

would not “support a conclusion that the expression used was intended or likely to

produce imminent disorder” and that “the breach of the peace conviction cannot stand.”

Id., at 594. The statements in this case similarly did not cause or were intended to

produce any imminent disorder.

More importantly, the record reveals that the Court, as a trier of fact, applied the

wrong standard in arriving at this conviction. The Court only required proof of “intent to

cause inconvenience, annoyance or alarm” to convict the Defendant on the charge of

breach of the peace. Tr. 3/22/13, at 130. It did not apply the constitutionally required

“interpretive gloss” of intent “to cause what a reasonable person operating under

contemporary community standards would consider a disturbance to or impediment of a

lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted

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10Ms. Brody did testify that she was “too upset to go out” after reading the Facebook posts, but there was no evidence suggesting that the posts were made with intent of keeping her at home.

by threatened danger or harm.” Wolff, at 670. Thus, this conviction is contrary to the

law and violates the Defendant’s First Amendment rights.

CONCLUSION

Based upon the aforementioned analysis of each remaining count in the

information, the Court should set aside the Verdicts, since confidence in the same

appears to be undermined by the facts and law provided herein. Without proof of the

“post” source, there cannot be a conviction. Even if posting could be attributed to the

Defendant, there is ample evidence to support the defense claim that the Defendant did

nothing with any harmful intent whatsoever.

WHEREFORE, based on the facts and the law articulated in this Motion, the

Defendant moves this honorable Court to set aside the verdict in the above captioned

matter and enter a judgment of acquittal on all remaining counts.

Respectfully submitted,

THE DEFENDANT,TERI BUHL

By:________________________________Stephan E. Seeger (415349)

Law Offices: Stephen J. Carriero, LLC810 Bedford Street, Suite 3

Stamford, CT 06901 Tel: (203) 273-5170

Fax: (203) 357-0608

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ORDER

The foregoing Motion having been heard is hereby GRANTED/DENIED

Dated this ____day of _______________________, 2013

_______________________________ JUDGE / ASSISTANT CLERK

CERTIFICATION

I, Stephan E. Seeger, Esq., do hereby certify that a copy of the foregoing Motion

was delivered by certified mail and/or hand delivered to the State’s Attorney’s Office in

Norwalk Connecticut, on April 1, 2013.

Donna Krusinski, Esq.Office of the State’s Attorney17 Belden AvenueNorwalk, CT 06850

_________________________________Stephan E. Seeger

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