ARGUMENT

The State argues that trial evidence was sufficient to convict the Defendant of

Harassment in Second Degree and of Breach of the Peace in Second Degree. Further,

that said convictions were not obtained in violation of the First Amendment of the United

States Constitution, and that the Trial Court did not impermissibly shift the burden of

proof to the Defendant in relation to establishing identity of the Facebook poster. The

States position is untenable based on Trial evidence and applicable case law.

Point 1: Evidence not sufficient to convict on Harassment or Breach of Peace

a. Harassment in 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. To convict, the State must prove all elements, and

identity, beyond a reasonable doubt. See State v. Marsala, 43 Conn.App. 527, 531

(1996).

The State claims trial evidence linked the Defendant to Tasha Moore, the

Facebook handle under which disparaging remarks about the victim were posted.

Circumstantial trial evidence supporting this claim included: (1) Defendants access to

the Brodys home, (2) Ms. Brodys testimony that her friends, all of whom also had

access to her home, were at high school graduation at the time of the postings, and (3)

that the defendant admitted to mailing the Facebook materials posted, to Mr. Brody, the

Victims father.

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The sufficiency question is whether the [trier of fact] could have reasonably

concluded, upon the facts established and the reasonable inferences drawn therefrom,

that the cumulative effect of the evidence was sufficient to justify the verdict of guilty

beyond a reasonable doubt. State v. Hersey, 78 Conn.App. 141, 167-68 (2003).

However, inferences which do not have a basis in facts established by the evidence

cannot be drawn or relied upon to sustain a verdict and the trier of fact may not resort

to speculation and conjecture. Id., at 168, citing State v. Sivri, 231 Conn. 115, 13132

(1994). Regarding identify, such facts are not classically dependent upon

circumstantial evidence for its proof. State v. Farrar, 7 Conn.App. 149, 155 (1986).

The Defendant did have periodic access to the Brody home, but others had

similar access. The Victim testified that at the time of the posting, she was at a

graduation ceremony with her classmates. This evidence does not exclude all friends

that had access, but only classmates.1 Regarding other friends, the Victim testified

that she did not think that any of [her] friends had done it. Tr. 3/22/13, at 19.

Interestingly, trial evidence merely revealed that at some point, the Defendant

possessed copies of pages that were posted on Facebook.

Moving from Defendant to Tasha Moore involved assuming none of the Victims

friends with access took the Victims personal notes. Simply put, it was based on

Defendants access to the home, Ms. Brodys speculation that none of her friends could

have done it, and Defendants possession of copies of the some of the posted

1 This is contrary to the States assertion that all her friends and classmates were present at the graduation. See States Br., at 19. While the State asserts the same, this fact was not proven at Trial, and the States gloss does not rescue the essential fact necessary to solidify its own logicthat only the Defendant had access, so she must be guilty.

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materials. Essentially, the State moves from conjecture to elimination. The Trier may

not resort to this process in reaching its decision. See Hersey, at 167-68. Absent hard

evidence that no other friends could have done the posting, the Victims testimony only

established her opinion or belief that other friends could not be involved.

Where a group of facts are relied upon for proof of an element of the crime it is

their cumulative impact that is to be weighed in deciding whether the standard of proof

beyond a reasonable doubt has been met . . . but where it is only a single fact which is

essential to prove an element, such evidence must support the inference of that fact

beyond a reasonable doubt. State v. Grant, 219 Conn. 596, 604605 (1991)

(emphasis added). Mere possession by the Defendant of copies of some of the posted

material, hardly rises to proof beyond a reasonable doubt that the Defendant stole the

originals and proceeded to post the same as Tasha Moore.

The State also argues that the Defendants initial lack of reaction to Mr. Brodys

statements about the Facebook postings, and the anonymous letter she sent, could

have been relied on by the Trier to establish the Defendant as culprit. This was her

guilty conscience or evasive action to avoid the detection of a crime. See States Br.,

at 19-20. Silence in the face of an accusation, according to the State, makes the

Defendant guilty. Our courts have long held that although evidence of silence in the

face of an accusation may be admissible under the ancient maxim that silence gives

consent the inference of assent may be made only when no other explanation is

consistent with silence. State v. Leecan, 198 Conn. 517, 52223 (1986) (emphasis

added). More specifically, when a statement, accusatory in nature, made in the

presence and hearing of an accused, is not denied or explained by him, it may be

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received into evidence as an admission on his part. State v. Daniels, 18 Conn.App.

134, 138 (1989). The States analysis and application, however, is misplaced; Mr.

Brodys statements to the Defendant were not accusatory, and they did not call for her

denial or explanation. Likewise, there is abundant trial evidence consistent with silence

in the context in which it arose; the Defendant is an investigative reporter, who

explained she acquired the information from a source she could not reveal, given her

obligation to keep journalistic sources confidential. An inference of guilty conscience

made by the Trier in this case, would be wrong as a matter of law.

Regarding intent to harass, annoy or alarm, the State argues that trial evidence

proved Defendant intended to harass Ms. Brody with Facebook posts, and Mr. Brody

with an anonymous mailing containing copies of Ms. Brody's personal notes. The State

relies on such evidence as the posting of private written materials on Facebook, the

Defendants alleged invitation of Ms. Brodys friends to Tasha Moores Facebook page,

and her anonymous mailing of copies of the Victims handwritten notes Mr. Brody.

Posting private notes referred to by the State as diary pages, however, does

not correlate with a specific Victim. Even assuming invitations went out to her friends2

the posters intent to harass Ms. Brody specifically, is not established. While others

were invited to Facebook pages where they could view the posts,3 Ms. Brodys

testimony revealed that friends status permitted access to anything and everything

Tasha Moore was posting. Tr. 3/22/13, at 22. Further, that Tasha Moore posted

copies of her diary pages along with a picture that included Ms. Brody in which the

2 The transcript reveals that only three such friends were identified. See Tr. 3/22/13, at 14-15. 3 See States Br., at 17.

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wrong person was tagged. Tr. 3/22/13, at 17. A correct tagging would have

resulted in a notification being sent to her. Tr. 3/22/13, at 16. No evidence adduced

confirmed she received such notification. The evidence at Trial simply did not reveal an

invitation to specifically view the disparaging or other materials.

The State further argues that the posted materials did not have to be directed to

Ms. Brody; allowing others see them was sufficient to prove the Defendants intent to

harass. The State relies on State v. Snyder for the proposition that direct

communication between the perpetrator and the victim is not required to violate

C.G.S.53a-183(a)(2). See State v. Snyder, 40 Conn.App. 544 (1996). However,

Snyder is clearly distinguishable; there, the Defendant communicated by mail with other

persons to cause numerous pieces of unsolicited mail and packages to be received by

the complainants in a manner likely to cause annoyance and alarm. Id., at 549. The

Defendant subscribed Victims to junk mail providers; the ultimate recipient is clearly the

subject of the harassment. Contrariwise, Facebook posts attributed to the Defendant

do not evidence conduct calculated to specifically reach an intended victim. Tasha

Moore shared her Facebook posts with three people that knew Ms. Brody; she was

never notified or friended directly. Unlike a subscription to a magazine that is virtually

guaranteed to result in mail to the specific subscriber, Facebook posts are not

guaranteed to reach their subjectsthey are not necessarily ultimate recipients. The

States argument would convert all gossip, into intentional harassment.

The intent element also precipitates issues relating to Facebook functionalities.

The Trier clearly was not familiar with Facebook. See Tr. 3/22/13, at 15. Nonetheless,

the record is replete with Facebook nomenclature used by Ms. Brody, exhibiting

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specialized and technical aspects of the social media platform that required further

explanation. She testified that Facebook profiles could have various privacy settings

that restrict viewing. She saw the disparaging comments via another person who was

friended with Tasha Moore. This alone raised the question of profile owner

restrictions; if restricted, what evidence confirmed beyond a reasonable doubt that Ms.

Brody was the intended victim ? There was no expert testimony offered which would

educate the Trier as to privacy settings on Facebook. In fact, the sole source of

guidance on the subject matter, was Ms. Brodys impressions, or what she thought,

guessed, or understood; namely, her opinion as to the inner workings of Facebook.

Interestingly, however, our courts have long held that [a]s a general rule, a lay

witness may not give opinion testimony and may testify only as to observed facts. See

State v. Watson, 50 Conn.App. 591, 600 (1998) citing Acampora v. Asselin, 179 Conn.

425, 427 (1980); see also, State v. McCulley, 5 Conn.App. 612, 616 (1985) (The

general rule is that witnesses must state facts and not their individual opinions and

conclusions.). Nonetheless, the State claims that quality or admissibility of the

evidence is of no moment in this appeal, since the same was admitted in full. Again,

however, the state ignores fundamental distinctions necessary for certain legal rules to

apply. Here, the case was tried to the Bench, and not a Jury. Consequently, full

admission is not an operative talisman. Our Supreme Court made it abundantly clear

that [i]n trials to the court, where admissible evidence encompasses an improper as

well as a proper purpose, it is presumed that the court used it only for an admissible

purpose. State v. Ouellette, 190 Conn. 84, 92 (1983) (emphasis added). Her opinions

on Facebook could be accepted to explain how she felt and what effect the posts had

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on her, but could not be (or at the very least are presumed not to be) used by the Trier

to learn and understand how Facebook actually works. Without, such understanding

the Trier of fact could not rationally and reasonably determine whether, in light of

Facebook intricacies (which were admittedly not understood by the Court), the

Defendants alleged use of the platform demonstrated an intention to harass

Regarding the anonymous mailing to Mr. Brody, it tis noteworthy that it came

after he attended the Police department initially with his daughter, and after he had

learned of the postings. He knew of the Facebook postings well before he received the

anonymous package; there is no other evidence adduced at Trial which explains how a

subsequent mailing was intended to harass. The mailed materials also contained an

exculpatory note obviating the lack of intent to cause distress, annoyance or alarm. The

Defendant also lacked a motive to harass; in fact, doing so would be inconsistent with

her own pecuniary interest; Mr. Brody supported her during their relationship.

Breach of the Peace in 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.

Here, the only potential instance of public exhibition, distribution, posting or advertising

of any offensive, indecent or abusive matter concerning any person was the Facebook

page of Ms. Moore. The private, anonymous letter to Mr. Brody, was not a public

posting. Thus, the relevant inquiry is whether or not the evidence was sufficient to

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prove that the Facebook posts were made by the Defendant and, if so, whether they

constitute a violation of C.G.S. 53a-181(a)(4).

In reviewing a claim of sufficiency on appeal the relevant question is whether the

[trier of fact] could have reasonably concluded, upon the facts established and the

reasonable inferences drawn therefrom, that the cumulative effect of the evidence was

sufficient to justify the verdict of guilty beyond a reasonable doubt. Hersey, at 167-68.

Any inferences drawn by the trier of fact which do not have a basis in facts established

by the evidence cannot be drawn or relied upon to sustain a verdict and the trier of fact

may not resort to speculation and conjecture. Sivri, at 13132. Additionally, proof of

identity of the perpetrator is not classically dependent upon circumstantial evidence for

its proof. Farrar, at 155.

The State argues that evidence was sufficient to identify the Defendant as the

poster of the disparaging remarks and diary of the victim on Facebook and, that said

postings were in fact publicly displayed. Regarding, insufficiency of evidence to

establish the identify of the Facebook poster, the Appellant relies upon the same facts

and analysis set forth in Point 1a, supra.

To convict, the element of publicity must be proven beyond a reasonable doubt.

Notably, the Victim did not stumble upon the posts; she had to be directed to them by a

friend who was actually friended with Tasha Moore. The posts were accessible only

to invited friendsthree were identified. The balance of the evidence necessary for

establishing the essential element of publicity emanated solely from Ms. Brodys

guessing and surmise. She could not, and did not, explain how pages on Facebook

operate privately and/or publicity; only her lay opinion was offered. Crediting her

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testimony would contravene the general rule that a lay witness may not give opinion

testimony and may testify only as to observed facts. Watson, at 600; see also,

McCulley, at 616.

On this score, the State once again argues that the fully admitted evidence

obviates any need to address its quality or admissibility. However, in a Court Trial

where admissible evidence encompasses an improper as well as a proper purpose, it

is presumed that the court used it only for an admissible purpose. Ouellette, at 92.

While Ms. Brody was competent to testify about what happened to her, how she used

Facebook, or how the events affected her, she was not competent to testify objectively

about how Facebook works. Thus, Ms. Brodys testimony on the subject of publicity

must, of necessity, not be used by the Trier to establish the element.

The State argues that publicity of the forum is dependent on whether or not the

defendant could reasonably expect the public to be present during the alleged

misconduct. See States Br., at 27-28. The State then goes on to explain the inner

workings of Facebook, complete with an account of how the Defendant could have

enabled privacy settings. Id. According to the State, Ms. Brodys testimony about how

many friends (all whom were privately invited) saw the page, and the option of

unexplained Facebook privacy settings which were supposedly not used by the

Defendant, were sufficient to prove the publicity element. The only problem with this

analysis, is that it does not come from evidence in the record, but from the imagination

or experience of Counsel for the State in this Appeal.

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Point 2: Defendants convictions violate First Amendment of U.S. Constitution.

a. Harassment in Second Degree

Prior to October of 2013, Harassment in Second Degree was not a threatening

language crime, and was predicated upon conduct only. See State v. Moulton, 120

Conn.App. 330, 345 (2010).4 At the time of Defendants conviction, content based

prosecution implicated the First Amendment. Id. at 337. More specifically, C.G.S.

53a-183 (a)(2) proscribed harassing conduct via mail and did not seek to regulate the

content of communications made by mail. See State v. Murphy, 254 Conn. 561, 568

(2000).

The Facebook post in the case at bar is unremarkable; it was effected in a

manner identical to other postings. A post was made and some people were made

friends. which meant that they could see what Tasha Moore was posting on her page.

This was not a special invitation to view only the disparaging and private materials, as

the State seems to imply. It was an invitation to view the entire Facebook page, and

also to let Tasha Moore view the pages of her new friends in return. At trial, the

actual methods of communication in this case were left unexplored. The States theory

at trial (as exhibited by the evidence it led, and its arguments to the Court) was that the

content of Facebook communications was so shocking and/or annoying that posting it

constituted Harassment in the Second Degree. The States argument on appeal further

4 The Appellant is aware that our Supreme Court recently overturned this legal precedent. See State v. Moulton, 310 Conn. 337, 362-63 (2013). However, the Court in Moulton, declined to give retroactive effect to this change in the law, explaining that the defendant did not have fair warning that she could be prosecuted for a violation of 53a183 (a)(3) solely on the basis of the content of her speech and consequently her conviction could not stand. Id., at 366. Thus this decision, which was issued after the Appellants conviction (on October 23, 2013), has no bearing on this appeal and her conviction should be examined in light of the legal precedent applicable at the time.

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focuses on the content of the postings. See States Br., at 16. To the extent the Trial

Court was persuaded by such an argument, the Defendants conviction in this case

implicates and contravenes constitutionally protected First Amendment rights. Similarly,

mailing anonymously to Mr. Brody what was already seen or known by him, can hardly

constitute harassment.

b. Breach of the Peace in Second Degree

Regarding C.G.S. 53a-181(a)(4), the United States Supreme Court set limits on

the type of conduct permissibly punishable by this statute, stating that it addresses

conduct destroying or menacing public order and tranquility [including] acts and

words likely to produce violence in others but cannot be used to 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). Our

own courts interpretation requires words or conduct of the kind that does 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. For example, our Supreme Court has

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

statute requiring the trier of fact must determine, beyond reasonable doubt, that the

defendants 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 feeling of vexation or provocation, or a feeling of anxiety

prompted by threatened danger or harm. State v. Wolff, 237 Conn. 633, 669-70

(1996).

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The evidence at trial did not show in any way that Ms. Brody or Mr. Brody were in

any way induced to act violently or had any effect on public tranquility or order. Though

Ms. Brody did testify that she didnt feel like going out with her friends after seeing the

posts, it has not been established that the posters predominant intent was to

accomplish this. Id. There was no evidence that Ms. Brody and Mr. Brody expected

any further danger or harm as a result of the posts or the mailing that brought about

additional anxiety. In the present case, the evidence simply does not support a

conclusion that the expression used was intended or likely to produce imminent

disorder and consequently the breach of the peace conviction cannot stand. State v.

Hoskins, 35 Conn.Supp. 587, 594 (1978). Moreover, 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. See Tr. 3/22/13, at 130. The

constitutionally required interpretive gloss was not applied.

The State focuses on the language and content of the postings and mailed

materials as obscene, and therefore unworthy of First Amendment protection.

Obscenity is being interjected into this case for the first time on appeal. This is not the

first time that the State tried to fall back on obscenity after the fact. See State v.

LaFontaine, 128 Conn.App. 546 (2011). In LaFontaine, the State argued on appeal that

defendant's first amendment rights in a prosecution for a harassing telephone

communication amounted to a constitutionally unprotected true threat.. [or] that the

language may have amounted to constitutionally unprotected obscenity. Id, at 556,

n.5. This Court found these arguments unpersuasive given that the state did not

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prosecute the case under either of the two criminal threatening statutes, General

Statutes 53a61aa and 53a62, or the criminal obscenity statutes, General Statutes

53a193 et seq. Id. Similarly, the Defendant in this case was not prosecuted under

the criminal obscenity statutes. Neither was she prosecuted under C.G.S.53a-

181(a)(5) which prohibits using abusive or obscene language in a public place. She

was prosecuted under C.G.S.53a-181(a)(4) which is silent as to obscenity.

Furthermore, as discussed supra, the trier of fact in this case did not apply the

indecency or the obscenity approach to this case, but rather explicitly stated that count

two [Breach of the Peace] requires an intent to cause inconvenience, annoyance or

alarm. Tr. 3/22/13, at 131. Moreover, the States argument misses the entire point.

The question is not whether or not the Defendant engaged in constitutionally protected

speech, but rather whether or not her conviction under C.G.S.53a-181(a)(4) amounts

to an unconstitutional application of said statute to her case. The law is clear, in order

to avoid infringing on the defendants First Amendment rights, the trier of fact must find,

beyond reasonable doubt, that the defendants 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 feeling of vexation or

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

670. There is no special carve out for obscenity. For instance, when dealing with a

conviction under C.G.S.53a-181(a)(5) (which speaks directly of obscene language),

this Court held that the statue proscribes fighting words that tend to induce immediate

violence by the person or persons to whom the words are uttered because of their raw

effect. State v. Caracoglia, 78 Conn.App. 98, 110 (2003).

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The State further argues that the Defendant merely assumes that the court

applied the wrong standard to the element of intent in this case, and relies on Rosenblit

v. Danaher for support to its argument. See Rosenblit v. Danaher, 206 Conn. 125

(1988). However, Rosenblit does nothing to support the States position. Presumption

of no error is not unqualified; it is presumed, unless the contrary appears, that judicial

acts and duties have been duly and regularly performed. Id., at 134 (emphasis added).

The record here speaks for itself; the Court explicitly stated that Breach of Peace

requires an intent to cause inconvenience, annoyance or alarm. Tr. 3/22/13, at 131. It

did not include the interpretive gloss, and it certainly did not include obscene language

in its definition.

c. Journalistic Privilege and Burden Shifting

The State argues that the Trial court did not shift the burden as to identify of the

poster, and therefore did not infringe upon journalist privilege. Also, that the evidence

was sufficient to prove the identity of the poster, without any need to shift the burden,

and that journalists privilege does not exist in the context of criminal proceedings.

Regarding the sufficiency of the evidence argument, the Appellant relies on her

arguments in Point 1a supra. Additionally, the Trial courts inquiry as to [w]hat other

evidence is there to suggest anyone else other than Ms. Buhl had access to those

[diary] pages5 is indicative of the mindset of the Trier of fact throughout the Trial. That

is, the Trier was expecting the Defendant to prove that someone other than her posted

the materials on Facebook. These words should not be construed as idle questions,

especially in the light of the cautionary instructions of our Supreme Court that [a]

5 Tr. 3/22/13, at 113.

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judge, trying the cause without a jury, should be careful to refrain from any statement or

attitude which would tend to deny the defendant a fair trial. State v. Gionfriddo, 154

Conn. 90, 97 (1966).

The States claim that journalists privilege is absent in criminal proceedings is

simply false. The State relies on Branzburg v. Hayes, 408 U.S. 665 (1972). However,

the Supreme Court in Branzburg expressly limited its decision to the narrow issue of

whether requiring newsmen to appear and testify before state or federal grand juries

abridges the freedom of speech. Id. at 667.6 Here, the Defendant was not merely

subpoenaed to testify before the grand jury, but was put on trial. Her identity as a

perpetrator was linked directly to her interactions with her confidential source, and a

choice not to reveal the same. Not being able to prove who else could have done it,

she was convicted. This is a far greater infringement on a journalist than merely having

to testify before a grand jury, and is a far greater interference in the process of

newsgathering which is a protected right under the First Amendment, albeit a qualified

one [that] emanates from the strong public policy supporting the unfettered

communication of information by the journalist to the public. Von Bulow by Auersperg

v. Von Bulow, 811 F.2d 136, 142 (2d Cir. 1987).

6 The State also relies on a Fourth Circuit interpretation of Branzburg, holding that [t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source. U.S. v. Sterling, 724 F.3d 482, 492 (4th Cir., 2013). However, like in Branzburg, the Court in Sterling was dealing exclusively with compulsion to testify before a grand jury. Id., at 491. Moreover, the Fourth Circuits interpretation in this case is not binding on this court as it does not reflect our state law or the law of the Second Circuit.