State v. Buhl ( 2014 )

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STATE OF CONNECTICUT v. TERI A. BUHL
(AC 35606)
Beach, Bear and Pellegrino, Js.*
Argued April 15—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Wenzel, J.)
Stephan E. Seeger, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were David I. Cohen,
state’s attorney, and Donna M. Krusinski, assistant
state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Teri A. Buhl, appeals from
the judgment of conviction, rendered following a trial
to the court, of harassment in the second degree in
violation of General Statutes § 53a-183 (a) (2) and
breach of the peace in the second degree in violation
of General Statutes § 53a-181 (a) (4).1 On appeal, the
defendant claims that there was insufficient evidence
to sustain her conviction of either crime. We affirm in
part and reverse in part the judgment of the trial court.
The following facts, which reasonably could have
been found by the court, and procedural history inform
our review. In June, 2010, the defendant, a journalist,
was involved in a romantic relationship with P, and she
frequently visited his home, where P’s daughter M also
resided.2 M kept some diary entries of her personal
thoughts and feelings in a drawer in her nightstand. On
June 23, 2010, seventeen year old M attended her high
school graduation and had dinner at a friend’s house.
When she later went home to change her clothes before
going out with friends, M received a telephone call from
a friend who told her that he had seen a ‘‘fake Facebook
profile’’3 of someone using the name ‘‘Tasha Moore’’ that
had information about M on it. M went onto Facebook,
viewed Moore’s profile through her friend’s Facebook
page, and saw the following message on Moore’s page:
‘‘[M] . . . gets so drunk at parties that boys know she
is an easy hook up. In April at [A’s] house party she
gave [O] a blow job and then threw up. [O] calls her
that deep throat JAP. [M] told her friends that . . . she
thought giving the best BJ would help make [O] her
boyfriend. You wonder why some . . . [high school]
girls never learn how to behave around boys.’’ M was
quite upset ‘‘because the person that they had identified
was not even—was not the right person and that was all
false information,’’ and she was concerned that others
would see the posting.
Moore’s Facebook profile also contained photo-
graphs of some of M’s handwritten diary entries, which
contained personal information about M’s attendance
at a party where she performed fellatio on a boy she
liked. M also noticed that Moore had ‘‘friended’’ several
of M’s friends and classmates, who, because of their
status as ‘‘friends’’ of Moore, could view Moore’s profile.
See footnote 3 of this opinion. Distraught, M did not
go out with her friends that night, but stayed at home,
where she received additional telephone calls from
friends who had seen Moore’s profile. M sent a message
via Facebook to Moore, asking her to take down the
posts and warning her that, if she did not take them
down, M would go to the police. When the posts
remained, M went to the police on June 24, 2010. M
also telephoned her parents and told them what had
happened. Later, M returned to the police station with
her father, P, who learned the details of what had hap-
pened directly from M.
Later in the day, on June 24, 2010, P received a sealed
envelope, sent by overnight mail, containing copies of
M’s handwritten diary pages and an unsigned letter that
provided: ‘‘[P], I am a casual friend of your daughter
[M]. I told my mom about the story you’ll read in this
letter that [M] shared with us this spring and she said
I should share it with you. [O] the guy [M] hooked up
with, has been bragging to my boyfriend and other
senior guys about what [M] did with him that night.
He’s not really a nice guy. She just gets so drunk so
fast sometimes I don’t know if she even remembers
hooking up with guys. I know she wants [O] to be her
boyfriend but he hardly talked to her after that night.
She only showed a few of us these letters when she
got back from vacation. Please don’t tell her one of her
friends wrote you but my Mom said it is best if you
read them.’’ M and P returned to the police department
with these materials.
On June 25, 2012, P had dinner with the defendant
and told her what had happened. On June 27, 2010, the
defendant told P that it was she who had sent him the
letter after meeting with an anonymous girl who had
the materials in her possession. The defendant stated
that she convinced the girl to allow her to turn the
materials over to P along with a cover letter explaining
the circumstances. The defendant would not disclose
the girl’s name to P because she stated that she had
promised to keep the source confidential. The defen-
dant told P that she would contact the investigating
police department. P returned to the police station a few
days later and met with Officer Daniel Gulino. Gulino
wanted the names of everyone who had access to P’s
home because there was no sign of forced entry and
someone had obtained pages of M’s diary, which was
kept in her nightstand. P also turned over the materials
sent by the defendant and told Gulino that the defendant
would be contacting him.
After the defendant attempted to contact Gulino by
e-mail and by telephone, Gulino made contact with the
defendant by telephone. The defendant told Gulino that
she was doing an investigative report on underage
drinking. Gulino asked the defendant if she was ‘‘Tasha
Moore,’’ and the defendant responded: ‘‘I’m Teri Buhl,
not Tasha Moore.’’ Gulino later turned his investigation
over to Sergeant Carol Ogrinc. Ogrinc then served on
Facebook an ex parte order for the disclosure of the
internet protocol (IP) address associated with the pro-
file of Tasha Moore. Ogrinc also served on Cablevision
an ex parte order for the name of the person associated
with the IP address she had been investigating, and
Cablevision reported that this IP address was connected
to the defendant.4
On October 21, 2010, the defendant was arrested and
charged with harassment in the second degree, breach
of the peace in the second degree, and interfering with
an officer. After a trial to the court, she was convicted
of the harassment and breach of the peace charges.
Following the denial of her postverdict motions, the
court sentenced the defendant on the harassment con-
viction to three months incarceration, execution sus-
pended after fifteen days, followed by one year of
probation, and on the breach of peace conviction to
six months incarceration, execution suspended after
fifteen days, followed by one year of probation, such
sentences to run consecutively, for a total effective
sentence of nine months incarceration, execution sus-
pended after thirty days, followed by one year of proba-
tion, the maximum amount of probation allowed. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant claims that ‘‘[t]he trial court erred in
finding [her] guilty of harassment . . . where the evi-
dence at trial was not sufficient for [a] finding of guilt
beyond a reasonable doubt without the trier of fact
shifting the burden of proof on the defendant and/or
impermissibly impinging on her constitutional rights.’’
The state argues that, on the basis of the evidence at
trial, the court ‘‘reasonably concluded that the evidence
established all of the elements of harassment in the
second degree, including identification . . . [and that]
the trial court’s finding of guilt did not violate the first
amendment because it was based on the defendant’s
physical action and not on the content of her communi-
cation, and because the ‘journalist privilege’ does not
exist in this context.’’ We conclude that the evidence
was sufficient to sustain the defendant’s conviction of
harassment in the second degree.
The standard of review for a sufficiency of the evi-
dence claim employs a two part test. ‘‘First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [trial judge] reasonably could have con-
cluded that the cumulative force of the evidence estab-
lished guilt beyond a reasonable doubt. . . . This court
cannot substitute its own judgment for that of the [trial
judge] if there is sufficient evidence to support the . . .
verdict.’’ (Internal quotation marks omitted.) State v.
Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).
‘‘While . . . every element [must be] proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense[s], each of the basic and inferred
facts underlying those conclusions need not be proved
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Newsome, 238 Conn. 588, 617, 682
A.2d 972 (1996). ‘‘[I]n determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
[A]n inference need not be compelled by the evidence;
rather, the evidence need only be reasonably suscepti-
ble of such an inference.’’ (Internal quotation marks
omitted.) State v. Niemeyer, supra, 258 Conn. 519. ‘‘Fur-
thermore, [i]n [our] process of review, it does not dimin-
ish the probative force of the evidence that it consists,
in whole or in part, of evidence that is circumstantial
rather than direct. . . . It is not one fact, but the cumu-
lative impact of a multitude of facts which establishes
guilt in a case involving substantial circumstantial evi-
dence. . . . [Finally] in responding to a claim of eviden-
tiary insufficiency . . . we view all of the evidence,
and the reasonable inferences drawable therefrom, in
favor of the [trier’s finding of guilty].’’ (Internal quota-
tion marks omitted.) State v. White, 139 Conn. App.
430, 434, 55 A.3d 818 (2012), cert. denied, 307 Conn.
953, 58 A.3d 975 (2013).
General Statutes § 53a-183 (a) provides in relevant
part: ‘‘A person is guilty of harassment in the second
degree when . . . (2) with intent to harass, annoy or
alarm another person, he communicates with a person
by . . . mail, by electronically transmitting a facsimile
. . . 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 . . . .’’
The state charged the defendant with violating § 53a-
183 (a) (2) via long form information as follows: ‘‘The
State of Connecticut alleges that on or about June 23,
2010 . . . the defendant . . . did harass, annoy or
alarm other persons, to wit: [M] and [P] by communicat-
ing to [P] by way of sending mail via overnight delivery
to his home . . . the contents of which did cause
annoyance or alarm. Furthermore, [the defendant] did
harass, annoy, or alarm [M] by communication via elec-
tronically transmitting a facsimile through a connection
with a telephone network/computer network and any
other form of written communication, on or about June
23, 2010, at approximately 5:30 p.m., via Facebook, to
wit: notes and journal pages . . . .’’
The state charged the defendant with three separate
acts of harassment combined in one count. Under our
case law, ‘‘[w]here a charging document alleges, in the
conjunctive, that an offense has been committed in
more than one way, a guilty finding may stand if the
evidence supports a conviction based upon any one of
the statutory alternatives.’’ State v. Wohler, 231 Conn.
411, 415, 650 A.2d 168 (1994).5 Accordingly, in order to
establish that the defendant was guilty of a violation
of § 53a-183 (a) (2) as charged, the state was required
to prove that the defendant: (1) on or about June 23,
2010, intended to harass, annoy or alarm M by sending
mail via overnight delivery to the home of P, and this
manner of communication was likely to cause annoy-
ance or alarm to M; or (2) on or about June 23, 2010,
intended to harass, annoy or alarm P by sending mail
via overnight delivery to his home, and this manner of
communication was likely to cause annoyance or alarm
to P; or (3) on or about June 23, 2010, at approximately
5:30 p.m., intended to harass, annoy or alarm M by
communicating, via Facebook, notes and diary pages,
and that this manner of communication was likely to
cause annoyance or alarm to M.6
On appeal, the defendant’s arguments are somewhat
diffuse, with very little legal analysis as to the effect of
many of the alleged errors made by the court. In her
statement of issues as to the harassment conviction,
she asserts that the court had insufficient evidence to
find her guilty of harassment in the second degree with-
out improperly shifting the burden of proof onto her
and improperly impinging on her constitutional rights.
In her appellate brief, as to the state’s allegations of
harassment in the second degree by her communicating
via Facebook, she argues that (1) the state failed to
provide an expert on the intricacies of Facebook post-
ings and privacy settings despite the court’s clear state-
ments that it was not familiar with Facebook, (2) there
was no evidence that the Facebook postings were calcu-
lated to reach M, (3) M’s testimony about how Facebook
worked should not have been admitted or considered
reliable by the court, (4) there was no link established
between the defendant and the Moore Facebook profile,
(5) the court drew an improper inference from the
defendant’s failure to produce evidence of who else
could have created the Moore Facebook profile,
evinced by the court’s question to defense counsel dur-
ing closing argument: ‘‘[W]hat evidence is there that
anyone else had access to . . . those [diary] pages
such that they would have been in a position to post
them,’’ (6) the court improperly shifted the burden to
the defendant to prove who created the Moore Face-
book profile, (7) this alleged improper burden shifting
violated the due process clause of the fourteenth
amendment, and (8) this burden shifting violated her
first amendment rights as a journalist not to give up
her source.
Regarding the allegations of her committing harass-
ment in the second degree by mailing the anonymous
letter, the defendant argues that (1) she sent the letter
after P already knew about the Facebook postings so
the content of the letter could not have surprised or
shocked him, (2) there was no evidence that the letter
was sent with an intent to harass P because he already
was familiar with the content of the letter, (3) there
was no evidence that the defendant had any motive to
harass or annoy P, (4) the letter was not addressed to
M, (5) there was no evidence that M ever saw the letter,
(6) there was no evidence that the letter was sent to P
with the intent to harass M, and (7) the state improperly
argued that the content of the letter would alarm any
father, therefore impinging on the defendant’s right to
free speech under the first amendment by focusing on
the content of the letter rather than on the mailing of
the letter.
First, we conclude that the defendant has not ade-
quately briefed a constitutional claim regarding free
speech or a journalistic privilege. Because the defen-
dant has failed to provide any legal analysis in support
of such claims, we decline to review them. See State
v. Orr, 291 Conn. 642, 645 n.4, 969 A.2d 750 (2009),
quoting State v. T.R.D., 286 Conn. 191, 213–14 n.18, 942
A.2d 1000 (2008) (‘‘We repeatedly have stated that [w]e
are not required to review issues that have been improp-
erly presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . Where a claim is
asserted . . . but thereafter receives only cursory
attention in the brief without substantive discussion or
citation of authorities, it is deemed to be abandoned.’’
[Internal quotation marks omitted.]).
We next conclude that the defendant has set forth
an insufficiency of the evidence claim regarding her
conviction of harassment in the second degree. Accord-
ingly, we will consider whether the court had before it
sufficient evidence to convict the defendant of a viola-
tion of § 53a-183 (a) (2) under any of the three ways
the defendant was alleged to have committed this crime.
Harassment in the second degree under § 53a-183 (a)
(2), like § 53a-183 (a) (3), is a specific intent crime that
requires the state to prove, beyond a reasonable doubt,
the defendant’s intent to harass, annoy or alarm another
person. See State v. Moulton, 310 Conn. 337, 355–56,
78 A.3d 55 (2013) (§ 53a-183 [a] [2] and [3] employ
identical language and are identical in scope except
subdivision [2] involves use of mail while subdivision
[3] involves use of telephone); State v. Orr, supra, 291
Conn. 668 (§ 53a-183 [a] [3] is specific intent crime).
‘‘The legislature decreed in § 53a-183 (a) (2) that a
person is guilty of harassment in the second degree
when with the requisite intent to harass ‘another person,
he communicates with a person’ in a prohibited manner.
. . . These words ‘are to be understood according to
the commonly approved usage of the language’ . . .
and ‘must be given their plain and ordinary meaning and
be interpreted in their natural and usual sense unless the
context indicates that a different meaning was
intended.’ . . . The language of § 53a-183 (a) (2)
plainly states that for a defendant to violate that statute,
he must first have the intent to harass, annoy or alarm
‘another’ person, i.e., the intended victim, and, second,
he must communicate with ‘a’ person, possibly a third
party, in a manner likely to achieve his ends. Thus, a
defendant is prohibited from intending to harass
‘another’ person and then acting on his intent by com-
municating with ‘a’ person. The statute by its terms
does not require direct communication with the person
who is the target of the harassment . . . .’’ (Citations
omitted; emphasis omitted.) State v. Snyder, 40 Conn.
App. 544, 551–52, 672 A.2d 535, cert. denied, 237 Conn.
921, 676 A.2d 1375 (1996), on appeal after remand, 49
Conn. App. 617, 717 A.2d 240 (1998).
In the present case, the defendant was alleged, inter
alia, to have harassed M and P by sending an overnight
letter to P that contained copies of very private and
personal diary pages that M had stored in the back of
her nightstand drawer in her bedroom. The identity of
the defendant as the person who mailed the materials
is not in question. The defendant admitted to sending
these materials via overnight mail. On the issue of the
defendant’s intent in mailing these materials, our law
instructs that because ‘‘we cannot know with certainty
the defendant’s intent, we must infer it from the reaction
of the victim[s] and the circumstances of [the mailing].’’
State v. Marsala, 43 Conn. App. 527, 537, 684 A.2d 1199(1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).
The defendant admitted to sending this mailing anon-
ymously. She had alternative methods of delivering the
materials to P other than the disguised delivery she
selected. For example, she could have handed or mailed
the materials to P with an explanation of how she had
obtained them and why she wanted him to have them,
but she waited several days before telling P that it was
she who had mailed the materials to him instead of
letting him know contemporaneously with the delivery.
The defendant’s hiding of her identity as the sender of
the materials for a number of days is circumstantial
evidence of her intent to harass, annoy and alarm M
and P. The evidence also demonstrates that the defen-
dant’s act of sending the anonymous letter disguising
her identity by having it purport to be sent from one
of M’s classmates with copies of private, personal diary
pages that had been kept by M in a nightstand in her
bedroom, caused both M and P to wonder how and
be alarmed that someone could have obtained these
materials from M’s bedroom without their knowledge
or permission.
M testified that although the defendant’s relationship
with P seemed good, she thought that the defendant
wanted to make her life miserable, that the defendant
tried to make her uncomfortable, and that the relation-
ship between her and the defendant was tense. She also
testified that she had written the diary notes that are
pertinent here while she was on vacation, and that she
had stuffed them in the back of her nightstand drawer
after returning from vacation. She stated that the diary
pages that were in evidence had been mailed to her
home in an overnight envelope, and that they were
copies of the originals, which she still had in her posses-
sion. She further testified that she was alarmed that
someone had been in her house and gone through her
nightstand drawer.
P testified that he thought his relationship with the
defendant was good, and that she had access to his
home, even residing with him in 2010. He further testi-
fied that on June 24, 2010, he received an overnight
envelope containing copies of his daughter’s personal
diary pages, together with an anonymous letter, and
that he was shocked and surprised by the materials.
He stated that he was ‘‘outraged that [copies of the
diary pages] were in someone else’s hands because they
were very personal notes,’’ and that he felt violated
knowing that some anonymous person had these mate-
rials. P stated that he discussed this matter with the
defendant at dinner on the Friday evening following his
receipt of the materials, that he explained how upset
he was about them, and that the defendant had no
reaction. It was not until the following Sunday that the
defendant told P that she had sent the materials, which,
she claimed, she had received from a source, but that
she could not reveal the name of that source. Clearly
both P and M were alarmed by this mailing.
On the basis of these surrounding circumstances and
the reaction of the victims in this case, we conclude
that the evidence was sufficient for the court to have
found, beyond a reasonable doubt, that the defendant
intended to harass, annoy or alarm M and P by sending
these materials anonymously, via overnight delivery,
and that this caused annoyance and alarm to both
victims.
II
The defendant also claims that there was insufficient
evidence to sustain her conviction of breach of the
peace in the second degree. She argues that there was
insufficient proof that the posted material was public,
and that the state needed to present an expert witness
on the issue of Facebook privacy settings and policies.7
We conclude that the evidence was insufficient to estab-
lish that the Facebook postings were public.
As stated in part I of this opinion, the standard of
review for a sufficiency of the evidence claim employs
a two part test. ‘‘First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [trial
judge] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Niemeyer, supra, 258 Conn. 517.
Section 53a-181 (a) provides in relevant part: ‘‘A per-
son 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 . . . (4) publicly exhibits, distributes, posts up
or advertises any offensive, indecent or abusive matter
concerning any person . . . . For purposes of this sec-
tion, ‘public place’ means any area that is used or held
out for use by the public whether owned or operated
by public or private interests.’’ In this case, the state
specifically charged the defendant as follows: ‘‘The
State of Connecticut alleges that on or about June 23,
2010 . . . the defendant . . . did with intent to cause
inconvenience, annoyance or alarm, publicly exhibit,
distribute, post up or advertise offensive, indecent or
abusive matter concerning [M] via Facebook, in viola-
tion of . . . § 53a-181 (a) (4).’’
The defendant argues that there was insufficient evi-
dence that the Facebook postings on Moore’s page were
publicly exhibited and that this insufficiency was com-
pounded by the lack of expert testimony of the workings
and privacy settings of Facebook. We agree.
During cross-examination, M testified regarding
Facebook as follows:
‘‘Q. So, I guess the point is, you were never friends
with Tasha Moore?
‘‘A. Yes, but her page was unprivate.
‘‘Q. Okay, you never became friends with Tasha
Moore?
‘‘A. You could see it. No, but I have gone on through
[my friend’s] Facebook and had seen it through his page.
‘‘Q. Thank you. You went on through your friend’s
Facebook page to see it?
‘‘A. Yes. Then could see everything through mine.
‘‘Q. I understand it. But, you weren’t invited in and you
didn’t see it from anyone else’s page but [your friend’s]?
‘‘A. Right, everybody else had been invited except me.
‘‘Q. Okay, everybody else, all eight other people or
all seven or eight people?
‘‘A. Multiple people had been invited, [but] not every-
body accepted.
‘‘Q. All right. So, it’s a private invitation. You have to
be invited in?
‘‘A. Sure.’’
M also testified, however, that she was able to view
Moore’s Facebook page through her own page because
Moore’s page was ‘‘unprivate’’ and ‘‘seemed to be pub-
lic.’’ The state argues that this testimony is sufficient
to establish that Moore’s Facebook page was public. It
also argued before the trial court that even if Moore’s
Facebook profile was private, at least eight other people
saw or knew of Moore’s Facebook page and that, there-
fore, the postings and the subject matter were public
for purposes of § 53a-181 (a) (4). We disagree.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) State v. Moulton, supra, 310 Conn. 357.
Section 53a-181 (a) (4) requires that the defendant
‘‘publicly exhibits, distributes, posts up or advertises
any offensive, indecent or abusive matter . . . .’’
(Emphasis added.) The statute then defines the term
‘‘public place’’ to mean ‘‘any area that is used or held
out for use by the public whether owned or operated
by public or private interests.’’ General Statutes § 53a-
181 (a). Therefore, we conclude that under the plain
language of the statute, the state was required to prove
that the matter concerning M was exhibited, distributed,
posted or advertised in a public place, or, more pre-
cisely, in an area used or held out for use by the public.8
If the evidence demonstrated that approximately eight
people were invited to view the page (and some did
not accept the invitation), and that Moore’s Facebook
page was not available for noninvited viewing, we
would conclude that the page was not held out for use
by the public, and, therefore, Moore’s Facebook page
was not publicly exhibited, posted or advertised. The
question now becomes whether there was sufficient
evidence for the court reasonably to have concluded
that, under the evidence presented, Moore’s Facebook
page was held out for use by the public.
At the start of M’s testimony, the court specifically
stated: ‘‘I should forewarn counsel, I don’t keep a Face-
book 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.’’ A review of
M’s testimony reveals that she commented on several
aspects of Facebook, including postings, tagging, public
pages, unprivate pages, private pages, invitations, notifi-
cations, accepting requests, and privacy settings. When
defense counsel attempted to question her on whether
other Facebook users had to be invited to view the
pages of ‘‘minors’’ because of Facebook privacy rules,
the court stated that it would allow counsel to ask M
questions related to ‘‘her understanding tied to the time
she’s viewing Facebook pages,’’ but that it would ‘‘not
[allow] questions as to the Facebook policy.’’
The defendant argues that this demonstrates the need
for a Facebook expert to testify about its policy regard-
ing privacy settings and the meaning of all of the rele-
vant specific Facebook terminology. She also argues
that M’s testimony was inconsistent as to whether
Moore’s privacy settings were public, private, or some-
thing in between, and that this, combined with the
court’s lack of familiarity with Facebook, clearly dem-
onstrates that the state needed to present an expert to
meet its burden of proof that she publicly displayed
the relevant postings. She contends that the transcript
‘‘reflect[s] an unfamiliar court attempting to determine
the nature and function[s] of Facebook privacy settings,
limited to [M’s] ‘impressions’ alone,’’ and that M ‘‘was
neither qualified nor consistent on the subject matter
of private/public settings in a Facebook universe.’’ We
agree that the state did not present sufficient evidence
to prove beyond a reasonable doubt that Moore’s Face-
book page was public.
‘‘Although expert testimony is permitted in a great
many instances, it is required only if the question
involved goes beyond the field of ordinary knowledge
and experience of judges and jurors.’’ C. Tait & E. Pres-
cott, Connecticut Evidence (4th Ed. 2008) § 7.5.4, pp.
410–11. ‘‘The trier of fact need not close its eyes to
matters of common knowledge solely because the evi-
dence includes no expert testimony on those matters.’’
(Internal quotation marks omitted.) State v. Padua, 273
Conn. 138, 149, 869 A.2d 192 (2005).
In this case, the trial court was very frank with coun-
sel in stating that it had no familiarity with Facebook,
and it asked several questions of counsel and M during
M’s testimony. The court also clearly told counsel that
it would not allow M, the only witness to testify about
Facebook settings, to testify about Facebook privacy
policy. Our Supreme Court recently explained in State
v. Altajir, 303 Conn. 304, 310 n.2, 33 A.3d 193 (2012),
that Facebook’s ‘‘general infrastructure, including [its]
privacy settings, is highly dynamic and in many cases
may be accurately assessed only with reference to a
limited time period.’’ ‘‘Due to the dynamic nature of
Facebook and other such social network sites, these
details, as well as basic structural features of the social
network, are subject to frequent modification. Care
should therefore be taken to assess information relating
to social network sites on a case-by-case basis, with due
attention to the nature of the site at the time relevant to
the case.’’ Id., 307 n.1. This cautionary language under-
scores the need for testimony or other evidence from
a person with suitable knowledge, experience or other
relevant qualification relating to the operation of Face-
book’s privacy settings applicable to the issues in
this case.9
In the present case, therefore, we are persuaded that
the state needed additional testimony from a person
qualified to provide evidence to establish that the Face-
book page created in the name of Tasha Moore was a
public page on June 23, 2010, or on other dates when
it was accessed by M or her friends. The state presented
only one witness, M, to testify regarding the public or
private nature of Moore’s Facebook profile, without
demonstrating that she was qualified to provide any
testimony beyond how she accessed the Facebook
page, and that testimony was contradictory. The state
did not establish that M had sufficient knowledge of
Facebook privacy settings and policies to enable her
to provide testimony about them. The court, therefore,
specifically prohibited M from testifying as to Facebook
policy. Additionally, the court at the beginning of M’s
testimony notified the parties that it lacked familiarity
with Facebook and would need assistance with respect
to Facebook issues. Accordingly, we conclude that the
state failed to meet its burden of proving beyond a
reasonable doubt that Moore’s Facebook page was
‘‘publicly exhibit[ed], distribut[ed], post[ed] up or
advertis[ed]’’; see General Statutes § 53a-181 (a) (4);
and, therefore, we further conclude that the evidence
was insufficient to support the defendant’s conviction
of breach of the peace in the second degree.
The judgment is reversed only as to the conviction
of breach of the peace in the second degree and the
case is remanded with direction to render judgment of
acquittal on that charge; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The court found the defendant not guilty of interfering with an officer
in violation of General Statutes § 53a-167a.
2
We refer to the victims by their first initials to protect their privacy
interests.
3
‘‘Facebook is a social network website.’’ State v. Damone, 148 Conn.
App. 137, 151 n.3, 83 A.3d 1227, cert. denied, 311 Conn. 936, 88 A.3d 550(2014). ‘‘ ‘Each [Facebook] user maintains a ‘‘profile,’’ which is a webpage
containing basic information such as the individual’s year of graduation and
home town, as well as personal information, such as his or her name and
whether he or she is single or in a relationship (i.e., ‘‘relationship status’’).
Users may inform others about what they are doing by changing the ‘‘current
status’’ message that appears at the top of the profile. . . .
‘‘ ‘Facebook allows users to designate ‘‘friends.’’ An individual who is
invited to be a member’s Facebook friend may either accept or reject the
offer, thus providing individual control over one’s list of friends. The user
can control how much information to post and who can view this information
by editing their privacy settings. Specific groups of people (a network or
friends) may be granted limited access to specific parts of the profile.
‘‘ ‘Facebook members can upload digital pictures into virtual photo
albums. A user can be ‘‘tagged’’ in these pictures so that his or her name
appears in the caption as a link to his or her profile. If the individual does
not want to be associated with the picture, he or she can ‘‘untag’’ it, thereby
removing the name and the link (though this does not remove the picture).
Members are able to post comments on photos, which appear as messages
below the picture.’ T. Pempek et al., ‘College Students’ Social Networking
Experiences on Facebook,’ 30 J. Applied Developmental Psychol. 227, 230
(2009).’’ State v. Altajir, 303 Conn. 304, 306–307 n.1, 33 A.3d 193 (2012).
‘‘[C]ustomizable privacy settings allow individual Facebook users to exer-
cise considerable control over the availability of information associated
with their profiles. Moreover, the social network’s general infrastructure,
including these privacy settings, is highly dynamic and in many cases may
be accurately assessed only with reference to a limited time period.’’ Id.,310 n.2.
‘‘Due to the dynamic nature of Facebook and other such social network
sites, these details, as well as basic structural features of the social network,
are subject to frequent modification. Care should therefore be taken to
assess information relating to social network sites on a case-by-case basis,
with due attention to the nature of the site at the time relevant to the
case. Up-to-date information regarding Facebook may be found in the ‘help’
section of the Facebook website, http://www.facebook.com/help/?page=
260315770650470. Further explanations of Facebook related terminology
may be found in the website’s glossary, http://www.facebook.com/help/glos-
sary.’’ Id., 306 n.1.
4
When the state attempted to link directly the IP address used to establish
the Facebook profile of Tasha Moore with the IP address assigned to the
defendant by Cablevision, defense counsel objected on hearsay grounds,
and the state withdrew its line of questioning. The court specifically found
that there was no direct link established between the defendant’s Cablevision
account and Tasha Moore’s Facebook profile. No one from Facebook was
called to testify.
5
We note that the defendant made no claim before the trial court and
that he makes no claim on appeal that the information improperly was
duplicitous. See State v. Browne, 84 Conn App. 351, 380–83, 854 A.2d 13(discussing duplicity and recognizing that ‘‘[a] single count is not duplicitous
merely because it contains several allegations that could have been stated
as separate offenses’’ [internal quotation marks omitted]), cert. denied, 271
Conn. 931, 859 A.2d 930 (2004).
6
The third allegation of harassment does not specify to whom the Face-
book communication was directed in an effort to annoy or alarm M. The
statute specifically requires that the defendant, ‘‘with intent to harass, annoy
or alarm another person,’’ in this case M, ‘‘communicates with a person .
. . .’’ (Emphasis added.) General Statutes § 53a-183 (a) (2); see also State
v. Snyder, 40 Conn. App. 544, 552, 672 A.2d 535 (‘‘§ 53a-183 [a] [2] plainly
states that for a defendant to violate that statute, he must first have the
intent to harass, annoy or alarm ‘another’ person, i.e., the intended victim,
and, second, he must communicate with ‘a’ person, possibly a third party,
in a manner likely to achieve his ends’’), cert. denied, 237 Conn. 921, 676
A.2d 1375 (1996), on appeal after remand, 49 Conn. App. 617, 717 A.2d 240(1998). There is no allegation in the information regarding to whom the
defendant is alleged to have communicated.
7
The defendant also claims that there was insufficient evidence to sustain
her conviction of breach of the peace in the second degree because there
was no proof that she acted as Tasha Moore on Facebook, there was no
proof that the postings affected anyone other than M and P, and there was
no proof that the statements were likely to produce violence or acts of
public disorder. She also argues that the court impermissibly shifted the
burden onto her to prove that she was not the person who had posted
materials about M on a Facebook profile created in the name of Tasha
Moore, and that this impinged on her constitutional rights as a journalist
to keep her sources confidential. Because we conclude that the state failed
to meet its burden of proving that the postings were public, we need not
discuss these other arguments.
8
On appeal, the state does not argue against such a definition. In its
appellate brief, citing to State v. Battista, 10 Conn. App. 499, 501–502, 523
A.2d 944 (1987), the state argues that the Appellate Court has ‘‘considered the
forum of the behavior at issue and whether the defendant could reasonably
expect the public to be present during the behavior, rather than the number
of people actually present.’’ In Battista, we determined that a man who
stood on the street in front of the home of his former in-laws and repeatedly
shouted disparaging things about his former wife, acted in a public place.
See State v. Battista, supra, 502. We were not concerned with the number
of people present, but with the area being available to the public. See id.;
see also State v. Bradley, 124 Conn. App. 197, 203, 4 A.3d 347, cert. denied,
295 Conn. 917, 990 A.2d 867 (2010) (president’s office at university ‘‘public
place’’ because he had open door policy to all students and encouraged
visits).
9
Such testimony need not necessarily be in the form of expert testimony.