State v. Billings ( 2022 )

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STATE OF CONNECTICUT v. BLAIR BILLINGS
(AC 44149)
Alvord, Elgo and Clark, Js.
Syllabus
Convicted of criminal violation of a restraining order, stalking in the second
degree and harassment in the second degree, the defendant appealed
to this court. The defendant had been in a relationship with A, and,
when A ended the relationship, the defendant began posting photographs
of her and private details about their affair on social media. A obtained
an ex parte restraining order against the defendant, and, a few days
after he was served with it, the defendant had a conversation with a
third party on his Facebook page relating to the affair. The defendant
did not refer to A by name in this conversation, but he referenced A’s
workplace, details of the affair, his alleged evidence of the same, and
his desire to tell A’s husband about the affair. A’s friend, W, took screen-
shots of the conversation and sent them to A. On the sole basis of that
Facebook conversation, the state charged the defendant. At trial, the
state admitted into evidence the screenshots of the Facebook conversa-
tion, along with screenshots of posts and messages relating to A and
the affair from various other social media accounts that allegedly
belonged to the defendant. Held:
1. The trial court did not abuse its discretion when it admitted into evidence
screenshots of the social media posts and messages attributed to the
defendant because the screenshots were properly authenticated: the
screenshots were admitted through W and A, who both testified that
they knew the defendant and that they were able to directly link the
defendant to the posts and messages in the screenshots on the basis of
the content and distinctive characteristics of the posts, messages, and
social media accounts, despite that the majority of the posts and mes-
sages were not directly received or authored by W or A; moreover, the
state was not required to conclusively prove that the defendant wrote
and published the posts and messages, and concerns that the social
media accounts associated with the defendant were either fake or
hacked and concerns regarding the irregularity of the date stamps on
the screenshots were not enough to bar their authentication, as such
concerns went to the weight of the evidence, not its admissibility.
2. This court concluded that the applicable criminal statutes (§§ 53a-181d
and 53a-183) for stalking in the second degree and harassment in the
second degree, respectively, as applied to the defendant, violated his
rights under the first amendment and, accordingly, reversed the judg-
ment with respect to his conviction of stalking in the second degree
and harassment in the second degree:
a. The state’s claim that, although the defendant’s Facebook conversation
did not fall into the unprotected categories of speech of true threats,
fighting words or obscenity, the speech in question was unprotected
because it fell within the speech integral to criminal conduct exception
to the first amendment was unavailing, as the defendant’s actions of
logging into his Facebook account and posting on his own page did not
constitute nonspeech conduct for purposes of the exception, rather,
those actions constituted the means by which he spoke, such that the
defendant’s posts contained in the Facebook conversation were not
integral to the criminal conduct but, instead, were the criminal conduct;
moreover, because the defendant’s conviction was based solely on the
Facebook conversation, in the absence of that protected speech, there
was insufficient evidence to sustain the defendant’s conviction under
§ 53a-181d.
b. The state could not prevail on its claim that the Facebook conversation
consisted of speech and nonspeech elements and that, under the test
set forth in United States v. O’Brien (391 U.S. 367), the government had
a sufficient interest in regulating the nonspeech element to justify the
incidental limitations on the defendant’s first amendment freedoms, as
the Facebook conversation consisted solely of speech; moreover, the
state did not argue that the speech was unprotected under any exception
to the first amendment, and our Supreme Court’s decision in State v.
Moulton (310 Conn. 337), made clear that the reach of § 53a-183 was
limited to speech that was not protected by the first amendment; further-
more, because the defendant’s conviction was based solely on the Face-
book conversation, in the absence of that protected speech, there was
insufficient evidence to sustain the defendant’s conviction under
§ 53a-183.
3. Contrary to the defendant’s claim, he was not deprived of his due process
right to a fair trial as a result of alleged prosecutorial improprieties:
a. The state’s violations of discovery orders did not constitute prosecu-
torial improprieties and the trial court did not abuse its discretion in
fashioning its remedies for the state’s noncompliance: there was no
indication that the state’s disclosure of additional discovery on the eve
of jury selection was done in bad faith, as the state turned over the
information shortly after it had come to its attention, and the trial court
did not abuse its discretion in failing to impose a severe sanction on the
state for its late disclosure because it granted defense counsel’s request
for a recess to review the new discovery and then granted his motion
for a continuance, which sufficiently protected the defendant’s rights by
ameliorating any prejudice caused by the late disclosure; moreover, the
trial court did not abuse its discretion when it declined to preclude W
from testifying as a result of the state’s failure to provide the defendant
with W’s criminal history and address because it determined that such
a severe sanction was inappropriate, given the minimal prejudice caused
by the state’s noncompliance; furthermore, the trial court did not abuse
its discretion when it failed to grant a mistrial after the state attempted
to offer a statement of a party opponent at trial without previously
disclosing such statement to the defendant because the court’s ruling
precluding the admission of the statement as evidence clearly amelio-
rated any prejudice stemming from the state’s late disclosure of the
statement.
b. The defendant could not prevail on his claims that the prosecutor
committed prosecutorial impropriety during his closing argument: the
prosecutor’s use of the term ‘‘red herring’’ in his closing argument was
intended to rebut a portion of the defendant’s theory of defense, specifi-
cally, that A was not credible, and was not directed at defense counsel’s
character or credibility and did not impugn or disparage him; moreover,
the prosecutor’s statement that it would have taken effort for the defen-
dant to get to A’s home was permissible because it properly referred to
facts in evidence, namely, that A lived in a rural area and that the
defendant’s primary mode of transportation was a bicycle, and then
invited the jury to draw a reasonable inference based on those facts.
Argued May 11—officially released December 20, 2022
Procedural History
Substitute information charging the defendant with
the crimes of criminal violation of a restraining order,
stalking in the second degree, and harassment in the
second degree, brought to the Superior Court in the
judicial district of Windham, geographical area number
eleven, and tried to the jury before Spellman, J.; verdict
and judgment of guilty, from which the defendant
appealed to this court. Reversed in part; judgment
directed.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was Alison L. Fonseca, certi-
fied legal intern, for the appellant (defendant).
Meryl R. Gersz, deputy assistant state’s attorney, with
whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Andrew Slitt and Jennifer Barry, assis-
tant state’s attorneys, for the appellee (state).
Opinion
CLARK, J. The defendant, Blair Billings, appeals from
the judgment of conviction, rendered after a jury trial,
of criminal violation of a restraining order in violation
of General Statutes § 53a-223b (a) (2), stalking in the
second degree in violation of General Statutes (Supp.
2018) § 53a-181d (b) (1),1 and harassment in the second
degree in violation of General Statutes (Rev. to 2017)
§ 53a-183 (a) (2).2 On appeal, the defendant claims that
(1) the court abused its discretion by admitting into
evidence social media posts and messages that the state
failed to properly authenticate, (2) the state committed
prosecutorial impropriety by failing to comply with cer-
tain discovery requirements and by making improper
statements during its closing arguments, (3) the court
abused its discretion when it declined to sanction the
state for violating a court order regarding discovery,
and (4) the evidence was insufficient to sustain his
convictions for stalking and harassment because they
were predicated on speech protected by the first amend-
ment.3 Because we agree with the defendant with
respect to his first amendment claim, we reverse the
judgment of conviction of harassment in the second
degree and stalking in the second degree. The judgment
is affirmed in all other respects.
The following facts, which reasonably could have
been found by the jury, and procedural history inform
our review of the defendant’s claims. The victim, A,4
lived in Putnam with her husband and worked as a
karate instructor at a karate school in Danielson (karate
school). She and her husband have six children, some
of whom, at the time of the trial, still lived at home. In
September, 2017, A attended a party hosted by the
owner of the karate school. At the party, A met the
defendant for the first time and the two ‘‘hit it off.’’
Later that evening, the two talked by themselves ‘‘for
quite a while just about a lot of personal stuff and
general stuff, things.’’
While at the party, A and the defendant added one
another as friends on Facebook. A few days later, A
messaged the defendant on the platform. The two also
started following each other on Instagram. Over the
next few weeks, A and the defendant began communi-
cating frequently and eventually met for drinks. There-
after, their relationship ‘‘became more personal’’ and
A eventually told the defendant that she ‘‘wanted to
have a relationship, an affair’’ with him. In early Novem-
ber, 2017, A and the defendant’s relationship turned
physical and the two began having sexual intercourse
and also exchanged intimate photographs of each other.
During that same time, A encouraged the defendant to
become a student at the karate school, which he did.
In either December, 2017, or January, 2018, A ended
the relationship. The defendant became ‘‘angry and
combative,’’ which ‘‘terrified’’ A. Despite ending the
relationship, A continued to communicate with the
defendant on a daily basis, stating that she ‘‘was trying
to calm him down and be amicable’’ because they were
adults. She also met with him at a laundromat to give
him a set of nunchucks5 with which he could practice
his karate.6 A then saw the defendant one final time at
an event at the karate school.
In February, 2018, A unfriended the defendant on
Facebook, which left him unable to see her Facebook
page or to message her on that platform. The defendant
then began messaging her on Instagram, where the two
still followed each other. Thereafter, the defendant
resorted to posting photographs of A and private details
about their affair and about members of her family on
social media.
In light of the defendant’s actions, A obtained an ex
parte restraining order against the defendant on April
2, 2018, which was served on the defendant on April
3, 2018. Importantly, for purposes of this appeal, the
defendant’s conduct prior to the issuance of the
restraining order does not form the basis of any of the
defendant’s convictions.
On or about April 7, 2018, a few days after the defen-
dant was served with the ex parte restraining order,
James Walters, a friend of A, sent A screenshots of a
Facebook conversation that the defendant had on his
own Facebook page with Tracey Hart Field, another
Facebook user unknown to A (April 7, 2018 Facebook
conversation). A previously had asked Walters to moni-
tor several of the defendant’s social media accounts.
Walters checked the defendant’s accounts frequently
for posts that might interest A, took screenshots of
them, and sent the screenshots to A. The screenshots
of the April 7, 2018 Facebook conversation read as
follows:7
‘‘[The Defendant]: I have enough text messages and
photos to ruin another human being life. And even more
lives. What do I do?’’
‘‘[The Defendant]: No one ever cut me slack!!! They
just used anything I said against me now It’s my turn!.
Thanks for the impute.’’
‘‘[Hart Field]: I would need to know what it’s about
to answer.’’8
‘‘[The Defendant]: She told me ‘targeting her was a
very bad idea’ I’ve [since] retrieved that message. She
has a lot to lose! I’ve even taken bedding with her DNA
all over it and handed [it] over to a[n] attorney in Maine
with all the proof and details.’’
‘‘[Hart Field]: . . and, of course, you know I’m gonna
be ‘captain obvious’ and now say that being involved
with a married person is wrong . . you’re a good guy
and better than that. ♥.’’
‘‘[The Defendant]: Your right! But she stalked me on
messenger after we met. At the karate owners house.
And I was attracted to her too. So shit happens. But I
won’t let you lie about me to save your ass. Especially
when I have all the proof! The only one that needs to
know the truth. Is her husband. And it’s not her first
time either. That I got confirmation on Friday. That’s
why it’s more of a big deal then people want to believe.’’
‘‘[The Defendant]: I told [our] karate master. He’s
trying to cover it up. And I have correspondence
between her and him to that fact. And they don’t like
it! I’ve been forced out of karate while she gets to
continue.’’
‘‘[Hart Field]: They are pissed that you wouldn’t let
it go . . . she probably has done this before . . . prob-
ably with the karate master . . . lol . . . I don’t know
why you chose to tell anyone though??’’
‘‘[The Defendant]: I chose to tell because I tried to
break it off back in January. And she came unglued!
All but begging me to stay! And I have those text mes-
sages. For once I saved things. If she has to leave her
family because of this, the karate school will fall.’’
‘‘[The Defendant]: I’ve been harrased by the state
police in this area because of it.’’
‘‘[Hart Field]: I would like to say that I could let it
go . . . but . . . in all honesty I think I would send
one picture that proves my point and let it go . . .
especially if people are thinking you made all this up
and it’s your imagination or worse. . .’’
‘‘[The Defendant]: I have many pictures! And mes-
sages that I retrieved from my phone by having it rooted!
But I’m prohibited from contact with her or her family.
It’s her last ditch effort to silence me legally.’’
‘‘[Hart Field]: I would think the hubby would WANT
to see proof . . . I know I would.’’
‘‘[The Defendant]: But plenty of people in the area
know but the one person that doesn’t is her husband!’’
‘‘[The Defendant]: Exactly Tracy! And I have it
ALL!!!!!!’’
‘‘[Hart Field]: It’s easy for others to say ‘let it go’ . . .
it’s different when it’s your life.’’
After receiving the screenshots from Walters, A vom-
ited, had a panic attack, and ‘‘was completely and totally
terrified that [her] entire life was going to be ruined on
social media.’’ A few weeks later, on May 12, 2018,
A went to the police and provided a formal written
statement. Trooper Howard Smith of the Connecticut
State Police was assigned to investigate her allegations
and confirmed that she had a valid restraining order
against the defendant at the time of some of the Face-
book posts.
On the sole basis of the aforementioned April 7, 2018
Facebook conversation, the state charged the defen-
dant with criminal violation of a restraining order in
violation of § 53a-223b, stalking in the second degree
in violation of § 53a-181d, and harassment in the second
degree in violation of § 53a-183.9
A five day jury trial was held in November, 2019.
Walters and A both testified. The state also admitted
into evidence numerous exhibits that depicted posts
and messages from the defendant’s social media
accounts. In addition to exhibit 11, which contained the
screenshots of the April 7, 2018 Facebook conversation
that formed the basis of the defendant’s convictions,
the state was permitted to introduce prior social media
posts of the defendant under the uncharged misconduct
rule.10 Those included, among others:
• Plaintiff’s exhibit 1, which was a screenshot of a
Twitter post containing a picture of A’s face and cap-
tioned: ‘‘Sex scandal rocks [karate school], Danielson
ct. Married instructor seeks student out on messenger
starts an affair.’’
• Plaintiff’s exhibit 4, which was a screenshot of an
Instagram post containing a photograph of A’s property
and captioned: ‘‘Pictures from today’s ride.’’
• Plaintiff’s exhibit 5, which was a screenshot of a
Facebook post that referred to A as ‘‘a cheater and
pathological li[a]r.’’ The post also included a screenshot
of an Instagram post that the defendant had allegedly
made, which included a picture of A and was captioned:
‘‘2 Dan at [karate school]. Adultery and pathological
li[a]r. #givesgoodhead.’’
• Plaintiff’s exhibit 6, which was a screenshot of a
Facebook post that was apparently intended for A’s
daughter, stating, ‘‘I got one of your mom’s favorite
picture[s] of me for you! Daughter is probably like
mother?’’
• Plaintiff’s exhibit 7, which included a screenshot
of a Facebook post containing a picture of A and cap-
tioned: ‘‘Love those lady parts. Lol.’’
• Plaintiff’s exhibit 7, which included a screenshot
of a Facebook post containing a picture of A and cap-
tioned: ‘‘You can shut down all my social media [sites].
But the good pictures will make [their] way [where]
they need [to]! I fucking promise!’’
• Plaintiff’s exhibit 10, which was a screenshot of
a conversation on Facebook messenger between the
defendant and A in which the defendant told A that she
had ‘‘lied [her] way out yet again’’ and asked whether
he should expect a visit from A’s husband.
After the state rested its case, the defendant moved
for a judgment of acquittal, arguing that the state had
failed to prove each count beyond a reasonable doubt
because it had not established that the defendant had
the required intent to violate the criminal restraining
order or to harass or stalk A because none of his posts
contained in the April 7, 2018 Facebook conversation
was directed at her. The defendant also argued, with
respect to the stalking charge, that the state had failed
to prove that a course of conduct occurred because the
charged conduct all happened on a single day. The state
responded that it was not required to show that the
defendant’s posts had been directed at A in order to
prove intent and that a course of conduct could occur
on a single day, which it did here, on the basis of the
multiple posts that the defendant made. The court
denied the defendant’s motion for acquittal.
Thereafter, the jury found the defendant guilty on
all counts. The court accepted the jury’s verdict and
sentenced the defendant to a total effective term of five
years of incarceration, suspended after nine months,
with three years of probation.11 The court also issued
a standing criminal protective order prohibiting any
contact with or communications about A and her family.
On December 3, 2019, the defendant filed a motion
for a new trial, wherein he argued, in relevant part, that
he was entitled to a new trial because (1) the court
had erred in admitting into evidence screenshots of his
social media posts and messages because they were not
properly authenticated and (2) the state had repeatedly
violated applicable discovery rules. The court denied
the motion, and this appeal followed. Additional facts
and procedural history will be set forth as needed.
I
The defendant first claims that the court abused its
discretion when it admitted into evidence screenshots
of his social media posts and messages because the
screenshots were not properly authenticated. We dis-
agree.
We first set forth the following additional facts and
procedural history. At trial, the state sought to introduce
screenshots of the defendant’s posts and messages,
summarized previously in this opinion, from his various
social media accounts. The defendant objected to the
admission of the screenshots, arguing that they could
not be properly authenticated because neither A nor
Walters could prove definitively that the posts and mes-
sages had been made by the defendant. Before the court
ruled on admissibility, Walters testified outside of the
presence of the jury regarding the screenshots.
Walters first testified about how he searched for and
located the defendant’s social media pages. To find
the defendant’s Facebook page, Walters searched the
defendant’s name in Facebook’s search bar. That search
pulled up two profiles associated with the defendant,
an active account that the defendant was currently
using and an older, inactive account. Walters then testi-
fied that the accounts had a number of distinctive char-
acteristics that led him to believe that they both
belonged to the defendant. Specifically, both accounts
included the defendant’s name and numerous pictures
of the defendant, the accounts had previously liked or
commented on posts that A had made and she had
responded back, ‘‘[t]here were also other people from
the karate school that [the accounts] had friended,’’
and the content of the posts on both accounts often
referenced private details about A. Walters also noted
that, although he was not Facebook friends with the
defendant, he was able to see everything that the defen-
dant posted because the defendant’s Facebook pages
were publicly available.
Walters also explained that he had located the defen-
dant’s Instagram account by searching for the defen-
dant’s name and then confirming that the username for
the resulting account matched the unique username
that A had given him for the defendant’s Instagram
account. A previously had exchanged messages with
the defendant on this account. Walters further con-
cluded that the account belonged to the defendant
because it included pictures of the defendant and posts
that again referred to private details about A. Last, Wal-
ters testified that he located the defendant’s Twitter
account by searching Twitter for the defendant’s name
and then identifying the defendant’s account on the
basis of his profile picture and the content of the page.
Walters believed that the Twitter account associated
with the defendant’s name belonged to the defendant
because the account included a picture of the defendant
at a gym, where Walters knew that the defendant was
a member, and again included posts that referenced
private details about A.
Walters further testified that his searches for the
defendant’s social media accounts had brought up other
accounts that were associated with individuals who had
the same name as the defendant but that he was able
to determine that those other accounts did not belong
to the defendant because some of the accounts
belonged to women and the other accounts belonged
to younger men.
Walters then testified about how he took screenshots
and shared the defendant’s posts. According to Walters,
he used either buttons or swipes on his cell phone
to screenshot pictures of the defendant’s social media
posts and then saved those screenshots to his device.
Walters then time stamped the screenshots, although
he admitted that the format of the time stamps was not
consistent because sometimes the time stamps were in
the American format (month/day/year) and other times
they were in the European format (day/month/year).
After Walters time stamped the screenshots, he sent
them to A. Walters also testified that all of the screen-
shots that the state intended to admit had come from
the defendant’s social media accounts.
After Walters testified, the court ruled that exhibits
1, 2a, 5, 6a, 7, 12 and 13 had been properly authenticated
and could be admitted into evidence through Walters
on the following day. On November 5, 2019, Walters
testified in the presence of the jury, and the state admit-
ted exhibits 1, 2a, 5, 6a, 7 and 13 into evidence. During
his testimony, Walters largely reiterated the testimony
that he had given the day before outside the presence
of the jury.
On November 6, 2019, the state introduced several
additional screenshots—exhibits 4, 10 and 11—through
A. Of those screenshots, exhibits 4 and 11 had been
taken by Walters, and exhibit 10 was the sole screenshot
taken by A. Although exhibits 4 and 10 were not admit-
ted into evidence through Walters’ testimony, he did
testify that the screenshots in both exhibits had come
from the social media accounts he had linked to the
defendant.
With respect to exhibit 4, A testified that it was a
screenshot that Walters had taken from the defendant’s
Instagram account and that the screenshot fairly and
accurately represented the way it looked when Walters
sent it to her. A further stated that she believed the
post was from the defendant’s Instagram account
because the account’s profile picture was of the defen-
dant and the username associated with the account
matched the defendant’s username for his Instagram
account. She also testified that she was familiar with
the defendant’s Instagram because she and the defen-
dant had previously followed each other on Instagram
and used it to exchange messages. With respect to
exhibit 10, A testified that it showed a private Facebook
conversation between her and the defendant and that
she had taken a screenshot of the conversation herself.
A stated that the screenshot fairly and accurately repre-
sented her Facebook conversation with the defendant
and that she had not edited the screenshot. Last, A
testified that exhibit 11 was sent to her as a screenshot
by Walters and that the screenshot showed a series of
public Facebook posts that the defendant had made
about her. She confirmed that the screenshot fairly and
accurately represented the way it looked when Walters
sent it to her.
We next set forth the standard of review and relevant
legal principles that govern our resolution of this claim.
The standard of review applicable to a claim regarding
authentication is well established. ‘‘We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law12 . . . for an abuse of discre-
tion. . . . Under the abuse of discretion standard [an
appellate court] make[s] every reasonable presumption
in favor of upholding the trial court’s rulings, consider-
ing only whether the court reasonably could have con-
cluded as it did.’’ (Citation omitted; footnote added;
internal quotation marks omitted.) State v. Rivera, 343
Conn. 745, 759, 275 A.3d 1195 (2022).
‘‘Authentication . . . is viewed as a subset of rele-
vancy, because evidence cannot have a tendency to
make the existence of a disputed fact more or less likely
if the evidence is not that which its proponent claims.
. . . Our Code of Evidence provides that [t]he require-
ment of authentication as a condition precedent to
admissibility is satisfied by evidence sufficient to sup-
port a finding that the offered evidence is what its
proponent claims it to be. . . . [A] writing may be
authenticated by a number of methods, including direct
testimony or circumstantial evidence. . . .
‘‘[T]he showing of authenticity is not on a par with
the more technical evidentiary rules that govern admis-
sibility, such as hearsay exceptions, competency and
privilege. . . . Rather, there need only be a prima facie
showing of authenticity to the court. . . . Once a prima
facie showing of authorship is made to the court, the
evidence, as long as it is otherwise admissible, goes to
the jury, which will ultimately determine its authentic-
ity. . . .
‘‘It is widely recognized that a prima facie showing
of authenticity is a low burden. . . . This is because [a]
proponent of evidence is not required to conclusively
prove the genuineness of the evidence or to rule out
all possibilities inconsistent with authenticity. . . .
‘‘[E]lectronic communications, such as text mes-
sages, are subject to the same standard of authentica-
tion and the same methods of authentication as other
forms of evidence: As with any other form of evidence,
a party may use any appropriate method, or combina-
tion of methods . . . or any other proof to demonstrate
that the proffer is what its proponent claims it to be, to
authenticate any particular item of electronically stored
information. . . .
‘‘One such appropriate method of authentication
. . . is that [a] witness with personal knowledge may
testify that the offered evidence is what its proponent
claims it to be. . . .
‘‘[Moreover] [t]he distinctive characteristics of an
object, writing or other communication, when consid-
ered in conjunction with the surrounding circum-
stances, may provide sufficient circumstantial evidence
of authenticity.’’ (Citations omitted; emphasis in origi-
nal; footnote omitted; internal quotation marks omit-
ted.) State v. Manuel T., 337 Conn. 429, 453–56, 254
A.3d 278 (2020).
Further, ‘‘[t]he government may authenticate a docu-
ment solely through the use of circumstantial evidence,
including the document’s own distinctive characteris-
tics and the circumstances surrounding its discovery.’’
(Internal quotation marks omitted.) State v. John L., 85
Conn. 903, 863 A.2d 695 (2004). Finally, ‘‘[c]onclusive
proof of authenticity is not required,’’ and the govern-
ment ‘‘can also rely on the contents of the [document]
to establish the identity of the declarant.’’ (Internal quo-
tation marks omitted.) Id., 302.
On appeal, the defendant claims that the screenshots
the state entered into evidence through Walters and A
were not properly authenticated because neither wit-
ness had personal knowledge to testify that the evi-
dence was what they claimed it to be and neither wit-
ness could prove that the defendant had authored the
contents of the screenshots. The state, on the other
hand, argues that the screenshots that were admitted
through Walters and A were properly authenticated
because both witnesses knew the defendant and were
able to identify numerous distinctive characteristics in
the exhibits. We agree with the state.
Walters testified that he knew the defendant from
the karate school, that he was good friends with A, and
that he was aware of the affair. He also testified as to
how he found the defendant’s social media accounts
and described the steps that he took to verify which
accounts belonged to the defendant and which accounts
belonged to other individuals who happened to have
the same name as the defendant. Specifically, Walters
used his knowledge of what the defendant looked like,
his sex, and his age to determine that social media
accounts associated with younger men and women
likely did not belong to the defendant.
With regard to all of the screenshots of Facebook
posts that were admitted into evidence, Walters testi-
fied that he believed the defendant was the author of
those posts because the Facebook accounts that the
posts came from contained the defendant’s name and
pictures of the defendant, including the accounts’ pro-
file pictures; the accounts were Facebook friends with
other students and instructors at the karate school and
shared mutual Facebook friends with A; and the posts
contained private information about A, as well as pic-
tures of A and a reference to her daughter. Importantly,
Walters testified that he observed that the accounts
previously interacted with A’s Facebook account, in
that the defendant previously had liked or commented
on A’s posts and A had responded back to the accounts.
As to the screenshot of a Twitter post that the state
admitted into evidence, Walters testified that he
believed the defendant had authored the post because
the Twitter account in question included the defen-
dant’s name, a profile picture of the defendant, and a
picture of the defendant at a gym, where Walters knew
that the defendant was a member. Additionally, the post
contained a picture of A and referenced a ‘‘sex scandal’’
involving her that had occurred at the karate school.
Finally, with respect to the Instagram posts that the
state admitted into evidence, Walters testified that he
believed the defendant had authored the posts because
the Instagram account’s unique username matched the
username that A had given him for the defendant’s
Instagram account, the account included pictures of the
defendant, and the content of the posts again contained
pictures of A, references to the karate school, and a
reference to A’s daughter.
A testified that she had been friends with the defen-
dant on Facebook and Instagram and had interacted
with him on both platforms. With respect to two of the
exhibits that she authenticated, exhibits 4 and 11, A
testified that the screenshots had been sent to her by
Walters, that the screenshots fairly and accurately rep-
resented the way they looked when Walters sent them
to her, and that she had not edited the screenshots.
A further testified that she believed that exhibit 4, a
screenshot of an Instagram post, had come from the
defendant’s Instagram account because she was famil-
iar with the defendant’s Instagram username and profile
picture and both matched the information associated
with the account that had posted the screenshot in
exhibit 4. Exhibit 10, the only exhibit that A took screen-
shots of, was a private Facebook conversation between
her and the defendant. A testified that the exhibit fairly
and accurately reflected the conversation she had with
the defendant and that she did not edit or alter that
screenshot. Last, with respect to exhibit 11—screen-
shots of the April 7, 2018 Facebook conversation—A
testified that the posts included references to private
details about her and her family, the affair, and the
karate school.
As summarized in the preceding paragraphs, the dis-
tinctive characteristics that Walters and A relied on to
establish that the social media posts and messages in
question were written and published by the defendant—
including that (1) the content of the posts repeatedly
referenced A, the affair, and the karate school, (2) the
social media accounts in question included the defen-
dant’s name, his unique social media usernames, and
multiple pictures of the defendant, (3) the Facebook
accounts, in particular, were friends with other mem-
bers of the karate school and mutual friends of A, and
(4) the Facebook accounts and Instagram account pre-
viously had interacted with A—were sufficient to prop-
erly authenticate the exhibits. See State v. Manuel T.,
supra, 337 Conn. 456, 461 (content of text messages,
which included information about victim’s age, job, fam-
ily, and boyfriend, was sufficient to authenticate mes-
sages); State v. John L., supra, 85 Conn. App. 302 (docu-
ments were properly authenticated on basis of
circumstantial evidence that linked defendant to docu-
ments). Moreover, with respect to exhibit 10, A’s testi-
mony that the exhibit accurately represented the con-
versation she had with the defendant over Facebook
was sufficient on its own to authenticate the exhibit.
See State v. Smith, 179 Conn. App. 734, 764–65, 181
A.3d 118 (Facebook message was properly authenti-
cated because proponent of message testified that she
had received message and had personal knowledge of
defendant and that content of message led her to believe
it was sent by defendant), cert. denied, 328 Conn. 927,
182 A.3d 637 (2018).
The defendant argues that Walters’ and A’s authenti-
cations were insufficient because they could not prove
that the defendant authored the social media posts in
question and the primary identifying features that both
witnesses relied on were the accounts’ names and pro-
file pictures. We disagree. First, the state was not
required to conclusively prove that the defendant wrote
and published the posts. See State v. Manuel T., supra,
337 Conn. 454 (for purposes of authentication, ‘‘[a] pro-
ponent of evidence is not required to conclusively prove
the genuineness of the evidence or to rule out all possi-
bilities inconsistent with authenticity’’ (emphasis omit-
ted; internal quotation marks omitted)). Second, as
summarized previously in this opinion, Walters and A
both relied on more than just the accounts’ names and
photographs to authenticate the screenshots, including
the fact that the Facebook accounts were friends with
other members of the karate school and shared mutual
friends with A, the specific content of the screenshots,
and that previous interactions between the defendant
and A had occurred on his social media accounts.
We similarly disagree with the defendant’s argument
that Walters and A could not properly authenticate the
screenshots of the posts contained in exhibit 11 because
neither was the author or the recipient of the defen-
dant’s social media posts. Although Walters and A did
not author or directly receive any of the defendant’s
posts, they both viewed the posts, either on the defen-
dant’s social media accounts or via screenshots that
had been taken of those accounts, and were able to
directly link the defendant to the posts on the basis of
the content and distinctive characteristics of the posts
and the accounts. That is sufficient for authentication.
See United States v. Bradley, United States District
Court, Docket No. 3:21-CR-00087 (VAB) (D. Conn. May
27, 2022) (‘‘[a]ssuming the [g]overnment offers testi-
mony from a witness who visited [the defendant’s] Face-
book page and observed the Facebook posts, this testi-
mony is sufficient to authenticate the exhibits as [the
defendant’s] Facebook posts’’).
We also are unpersuaded by the defendant’s argu-
ment that the social media accounts from which the
screenshots were taken may have either been fake
accounts or accounts that were hacked and, thus, the
posts could not have been properly authenticated. As
support for this assertion, the defendant points to A’s
testimony at trial that the defendant had previously shut
down his Facebook page and that the defendant had
told Trooper Smith that his Facebook account had been
hacked. ‘‘[Q]uestions about the integrity of electronic
data [however] generally go to the weight of electroni-
cally based evidence, not its admissibility.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Manuel T., supra, 337 Conn. 461. Moreover, as pre-
viously stated in this opinion, ‘‘the bar for a finding of
authenticity is not high. . . . A party proffering evi-
dence does not have the burden to disprove all possible
inconsistencies with authenticity, or prove beyond all
doubt that the [exhibits] are what the party purports
them to be.’’ (Citation omitted.) Gagliardi v. Commis-
sioner of Children & Families, 155 Conn. App. 610,
621, 110 A.3d 512, cert. denied, 316 Conn 917, 113 A.3d
70 (2015). Accordingly, concerns that the social media
accounts associated with the defendant were either
fake or hacked, even when there is perhaps some evi-
dence to support those concerns, are not enough to bar
authentication of the screenshots here. For these same
reasons, we also disagree with the defendant’s argu-
ment that the exhibits could not have been properly
authenticated because ‘‘the ‘date stamps’ on the post-
ings were erratic,’’ and, thus, it was ‘‘impossible to say
when any given screenshot was actually taken.’’ See
id.; see also State v. Manuel T., supra, 456 (screenshots
could properly be authenticated without date of com-
munication listed on exhibit).13
Accordingly, for the reasons set forth herein, the
screenshots were properly authenticated by Walters
and A, and the court, therefore, did not abuse its discre-
tion in admitting those screenshots into evidence.
II
The defendant next argues that there was insufficient
evidence to convict him of stalking in the second degree
in violation of § 53a-181d and harassment in the second
degree in violation of § 53a-183.14 He contends that both
statutes are unconstitutional as applied to him because
he ‘‘was prosecuted on the content of his communica-
tion, not on the conduct of it.’’ In his view, absent
protected speech, there is insufficient evidence to sup-
port his convictions.
The state takes a different view. With respect to the
defendant’s stalking conviction, it argues that it ‘‘did
not punish the content of his speech, but rather a course
of conduct that was, in part, informed by speech.’’ The
state thus contends that the speech contained in the
defendant’s April 7, 2018 Facebook conversation is
unprotected under the ‘‘speech integral to criminal con-
duct exception’’ to the first amendment. At the same
time, the state argues that the defendant’s harassment
conviction ‘‘was based on speech and nonspeech’’ com-
ponents. Although it does not argue that the speech
integral to criminal conduct exception applies to the
harassment conviction, the state nevertheless argues
that, in accordance with United States v. O’Brien, 391
U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), it
‘‘has a sufficient interest in regulating the nonspeech
element, which justifies the incidental limitations on
[the defendant’s] first amendment freedoms.’’ The state
argues that the evidence presented was sufficient for
the jury to reasonably infer that the defendant had the
necessary mental states and that the posts were likely
to come to A’s attention. For the reasons discussed
herein, we conclude that the defendant’s stalking and
harassment convictions cannot stand because the stat-
utes as applied to the defendant violate his rights under
the first amendment.15
A
Legal Principles
The legal principles at the heart of this claim are
foundational. The first amendment, applicable to the
states through the fourteenth amendment, provides that
‘‘Congress shall make no law . . . abridging the free-
dom of speech . . . .’’ U.S. Const., amend. I. ‘‘[A]s a
general matter, the [f]irst [a]mendment means that gov-
ernment has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.’’
(Internal quotation marks omitted.) Ashcroft v. Ameri-
can Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct.
1700, 152 L. Ed. 2d 771 (2002). The state may violate this
mandate in various ways, ‘‘but a law imposing criminal
penalties on protected speech is a stark example of
speech suppression.’’ Ashcroft v. Free Speech Coalition,
535 U.S. 234, 244, 122 S. Ct. 1389, 152 L. Ed. 2d 403(2002).
There can be little dispute that the first amendment
extends to an individual’s posts on social media. See
Mahanoy Area School District v. B. L., U.S. , 141
S. Ct. 2038, 2042–43, 210 L. Ed. 2d 403 (2021) (student’s
social media posts, which included vulgar and crude
speech, were protected by first amendment); Pack-
ingham v. North Carolina, U.S. , 137 S. Ct. 1730,
1735–36, 198 L. Ed. 2d 273 (2017) (‘‘[i]n short, social
media users employ these websites to engage in a wide
array of protected [f]irst [a]mendment activity on topics
‘as diverse as human thought’ ’’).
The first amendment’s protections, however, are not
absolute. There are various ‘‘well-defined and narrowly
limited classes of speech’’ that are not protected, includ-
ing, among others, obscenity, defamation, fraud, incite-
ment, and speech integral to criminal conduct. Chaplin-
sky v. New Hampshire, 315 U.S. 568, 571–72, 62 S. Ct.
766, 86 L. Ed. 1031 (1942); see also United States v.
Stevens, 559 U.S. 460, 468–69, 130 S. Ct. 1577, 176 L.
Ed. 2d 435 (2010). Speech that does not fall into these
exceptions remains protected. See United States v. Ste-
vens, supra, 468–69; Chaplinsky v. New Hampshire,
supra, 571–72. But just because speech may be consid-
ered crude or in bad taste does not necessarily bring
that speech outside the protection of the first amend-
ment. See Mahanoy Area School District v. B. L., supra,141 S. Ct. 2048 (‘‘sometimes it is necessary to protect
the superfluous in order to preserve the necessary’’).
The United States ‘‘Supreme Court has consistently
classified emotionally distressing or outrageous speech
as protected, especially where that speech touches on
matters of political, religious or public concern.’’ United
States v. Cassidy, 814 F. Supp. 2d 574, 582 (D. Md.
2011), appeal dismissed, Docket No. 12-4048, 2012 WL
13228525 (4th Cir. April 11, 2012).
‘‘When assessing the constitutionality of a statute, we
exercise de novo review and make every presumption
in favor of the statute’s validity. . . . We are also mind-
ful that legislative enactments carry with them a strong
presumption of constitutionality, and that a party chal-
lenging the constitutionality of a validly enacted statute
bears the heavy burden of proving the statute unconsti-
tutional beyond a reasonable doubt . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Nowacki, 155 Conn. App. 758, 780, 111 A.3d 911 (2015).
B
Criminal Stalking
The operative language of the second degree criminal
stalking statute provides in relevant part: ‘‘A person is
guilty of stalking in the second degree when: (1) Such
person knowingly engages in a course of conduct
directed at a specific person that would cause a reason-
able person to (A) fear for such person’s physical safety
or the physical safety of a third person, or (B) suffer
emotional distress . . . .’’ General Statutes (Supp.
2018) § 53a-181d (b). A ‘‘course of conduct’’ means ‘‘two
or more acts, including, but not limited to, acts in which
a person directly, indirectly or through a third party,
by any action, method, device or means, including, but
not limited to, electronic or social media, (1) follows,
lies in wait for, monitors, observes, surveils, threatens,
harasses, communicates with or sends unwanted gifts
to, a person, or (2) interferes with a person’s property
. . . .’’ General Statutes (Supp. 2018) § 53a-181d (a).16
Although it is clear from the language of the stalking
statute that it is directed at conduct, specifically, a
‘‘course of conduct,’’ it is apparent that a ‘‘course of
conduct’’ under § 53a-181d can be established through
conduct and unprotected speech alike, similar to that
of the criminal harassment statute. See State v. Moulton,
310 Conn. 337, 342, 78 A.3d 55 (2013) (both conduct
and unprotected speech can form basis for harassment
conviction); see also United States v. Osinger, 753 F.3d
939, 944, 946 (9th Cir. 2014) (‘‘course of conduct’’
required to establish violation of federal interstate stalk-
ing statute may be established by conduct and speech
components).
The defendant argues that his stalking conviction was
not based on any conduct but was based exclusively
on the April 7, 2018 Facebook conversation—a constitu-
tionally protected conversation that he had with a third
party on his own Facebook page—and, thus, his convic-
tion violates his first amendment rights. The state dis-
agrees and argues that the defendant’s first amendment
rights were not violated because the speech contained
in his April 7, 2018 Facebook conversation was not
protected and the defendant’s conviction was based on
nonspeech conduct. Although the state concedes that
the defendant’s speech contained in the April 7, 2018
Facebook conversation, which forms the sole basis for
the defendant’s convictions, ‘‘does not fall into the
unprotected categories of speech of true threats, fight-
ing words, or obscenity,’’ it contends that the speech
in question is unprotected because it falls within the
speech integral to criminal conduct exception to the
first amendment. We are not persuaded.
The United States Supreme Court case from which
the speech integral to criminal conduct exception
mainly emerged, Giboney v. Empire Storage & Ice Co.,
336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), estab-
lished that the first amendment extends no protection
to ‘‘speech or writing used as an integral part of conduct
in violation of a valid criminal statute.’’ Id., 498. The
speech in question in Giboney was a labor union’s pick-
eting in an effort to pressure all nonunion peddlers to
join. Id., 492. In furtherance of this goal, the union set
out to obtain agreements from all of the wholesale
ice distributors in the area to not sell ice to nonunion
peddlers. Id. All of the distributors agreed with the
exception of Empire Storage and Ice Company, and,
thus, the picketing was aimed at this last holdout com-
pany. Id. Empire Storage and Ice Company, relying on
a Missouri statute that made it illegal to refuse to sell
to nonunion peddlers, sought an injunction to stop the
picketing, which it obtained. Id., 492–93. The Missouri
Supreme Court upheld the injunction. Id., 494. The peti-
tioners appealed to the United States Supreme Court,
arguing that the statute at issue in that case, as applied
to them, violated their first amendment rights. Id., 495.
The court was not persuaded. Id., 501. It noted that
refusal to sell to nonunion peddlers was illegal under
the Missouri law, and, thus, picketing was aimed at
compelling another entity to break the law. Id., 501–502.
The court stated that ‘‘it has never been deemed an
abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct
was in part initiated, evidenced, or carried out by means
of language, either spoken, written, or printed.’’
(Emphasis added.) Id., 502.
The contours of the Giboney exception have yet to be
clearly defined and have been subject to considerable
criticism, especially in light of more recent United
States Supreme Court precedent, such as Holder v.
Humanitarian Law Project, 561 U.S. 1, 27–28, 130 S.
Ct. 2705, 177 L. Ed. 2d 355 (2010), which appears incon-
gruent with Giboney’s rationale. See, e.g., King v. Gov-
ernor of New Jersey, 767 F.3d 216, 225–26 (3d Cir. 2014),
cert. denied sub nom. King v. Christie, 575 U.S. 996,
135 S. Ct. 2047, 191 L. Ed. 2d 955 (2015); United States
v. Matusiewicz, 84 F. Supp. 3d 363, 369 (D. Del. 2015),
aff’d sub nom. United States v. Gonzalez, 905 F.3d 165(3d Cir. 2018), cert. denied, U.S. , 139 S. Ct. 2727,
204 L. Ed. 2d 1120 (2019); E. Volokh, ‘‘The ‘Speech
Integral to Criminal Conduct’ Exception,’’ 101 Cornell
L. Rev. 981, 988 (2016). Nevertheless, for the speech
integral to criminal conduct exception to apply, the
speech in question must, at a minimum, be integral to
criminal conduct other than protected speech. See, e.g.,
United States v. Petrovic, 701 F.3d 849, 855 (8th Cir.
2012) (‘‘[t]he communications for which [the defendant]
was convicted under [18 U.S.C.] § 2261A (2) (A) were
integral to this criminal conduct as they constituted the
means of carrying out his extortionate threats’’). It does
not apply if a defendant is doing nothing more than
speaking.
Here, the state contends that the defendant’s convic-
tion was based, in part, on nonspeech conduct. Specifi-
cally, the state argues that ‘‘the defendant’s course of
conduct [was] comprised of nonspeech components of
logging into his social media account, creating a digital
billboard, and choosing to repeatedly post messages,
as well as a speech component of the content of the
posts.’’ It contends that ‘‘[t]he repetitive, cumulative
nature of the defendant’s posting created something
more than the content of the words in the posts, and
that is a course of conduct.’’ The state therefore argues
that ‘‘the speech associated with the defendant’s Face-
book posts was integral to the criminal conduct of post-
ing approximately thirteen times’’ on his own Face-
book page.
We are not persuaded that the defendant engaged in
any nonspeech conduct for which the speech in ques-
tion could be integral. The record reflects that the defen-
dant engaged in a single Facebook conversation with
a third party on his own Facebook page, which occurred
after A already had unfriended him on Facebook. It is
undisputed that, on the day in question, the defendant
did not send any messages directly to A or her family,
show up at A’s home or place of employment, or cause
others to do so. The state argues that, by logging into
his own Facebook account and posting on his own
Facebook page, the defendant somehow engaged in
nonspeech conduct for which the speech in question
was integral. Those actions, in and of themselves, how-
ever, cannot constitute nonspeech ‘‘conduct’’ for pur-
poses of the speech integral to criminal conduct excep-
tion. Rather, they constitute the means by which the
defendant spoke in this case. If the very act of posting
a message on one’s own Facebook page ‘‘implicates
conduct . . . then a newspaper article likewise impli-
cates conduct in the sense that a printing press or a
computer printer has to put ink on paper . . . .’’ (Inter-
nal quotation marks omitted.) E. Volokh, supra, 101
Cornell L. Rev. 1039.
In this case, it is clear that the defendant’s Facebook
posts were not integral to criminal conduct; they were
the criminal conduct. See People v. Relerford, 104
N.E.3d 341, 352 (Ill. 2017) (concluding that speech inte-
gral to criminal conduct exception was not applicable
because there was not some other criminal act; content
of Facebook posts was criminal act); State v. Shackel-
ford, 264 N.C. App. 542, 556, 825 S.E.2d 689 (2019)
(speech integral to criminal conduct exception was
inapplicable because ‘‘speech itself was the crime’’);
see also United States v. Osinger, supra, 753 F.3d 954(Watford, J., concurring) (‘‘The [c]ourt in Giboney made
clear that the union’s picketing lost its [f]irst [a]mend-
ment protection only because the union was ‘doing
more than exercising a right of free speech or press.
. . .’ If a defendant is doing nothing but exercising a
right of free speech, without engaging in any non-speech
conduct, the exception for speech integral to criminal
conduct shouldn’t apply.’’ (Citation omitted.)); United
States v. Cook, 472 F. Supp. 3d 326, 332 (N.D. Miss. 2020)
(‘‘[T]he government has not alleged that [the defendant]
ever directly contacted any of the subjects of his Face-
book posts. Rather, [the defendant] is being prosecuted
solely on the content of his public posts—not the act
of posting.’’ (Emphasis omitted.)). If one were to
remove the content of the speech altogether in the
present case, one would be left only with the defendant
sending a few Facebook posts back and forth with a
third party, unrelated to the only identified victim, A.
That alone would not, and could not, serve as a basis for
violating the statute. It is clear that ‘‘[t]he only ‘conduct’
which the [s]tate sought to punish is the fact of commu-
nication. Thus, we deal here with a conviction resting
solely upon ‘speech’ . . . .’’ (Citation omitted.) Cohen
v. California, 403 U.S. 15, 18, 91 S. Ct. 1780, 29 L. Ed.
2d 284 (1971).
The state relies, in large part, on a number of federal
court decisions that upheld convictions under the fed-
eral cyberstalking statute. See 18 U.S.C. § 2261A (2018).
Those cases, however, are materially different from the
present case. The key distinction between those cases
and the present case is that the defendants in those
cases engaged in unprotected nonspeech conduct, in
addition to speech, and the speech in question was
integral to some criminal offense. Unlike in the present
case, the defendants in those cases were not convicted
solely on the basis of their speech. See United States
v. Osinger, supra, 753 F.3d 952–53 (Watford, J., concur-
ring) (The defendant’s course of conduct ‘‘began in
Illinois when he harassed [the victim] by repeatedly
showing up at her home and workplace, despite her
efforts to avoid him. It continued after she moved to
California, initially through a string of unwelcome and
implicitly threatening text messages, and then through
a fake Facebook page and emails sent to [the victim’s]
co-workers. . . . What makes this a straightforward
case is the fact that [the defendant] committed the
offense by engaging in both speech and unprotected
non-speech conduct.’’ (Citations omitted.)); United
States v. Sayer, 748 F.3d 425, 434 (1st Cir. 2014) (defen-
dant’s conduct included creating false online advertise-
ments and accounts in Jane Doe’s name or impersonat-
ing Jane Doe on Internet and enticing men to show up
at her house for sexual encounters); United States v.
Petrovic, supra, 701 F.3d 855 (defendant’s harassing and
distressing communications were integral to criminal
conduct of extortion).
The reason why courts require something more than
otherwise protected speech in order for the speech
integral to criminal conduct exception to apply is clear.
Without such a requirement, states could criminalize
traditionally protected forms of speech and then prose-
cute individuals under that exception on the basis of
the theory that the individual’s speech constitutes the
conduct integral to the commission of the offense. See
United States v. Matusiewicz, supra, 84 F. Supp. 3d 369(‘‘[u]nder the broadest interpretation, if the government
criminalized any type of speech, then anyone engaging
in that speech could be punished because the speech
would automatically be integral to committing the
offense’’). A number of courts that have applied the
speech integral to criminal conduct exception, includ-
ing cases on which the state principally relies, have
recognized this danger and cautioned against interpre-
ting the exception too broadly. See id. (‘‘it is important
that [courts] avoid interpreting Giboney’s exception too
broadly’’); see also United States v. Osinger, supra, 753
F.3d 954 (Watford, J., concurring) (‘‘[i]f a defendant is
doing nothing but exercising a right of free speech,
without engaging in any non-speech conduct, the excep-
tion for speech integral to criminal conduct shouldn’t
apply’’). Accepting the state’s argument in this case
would be a ‘‘recipe for clandestinely denying full [f]irst
[a]mendment protection to all speech in all media.’’ E.
Volokh, supra, 101 Cornell L. Rev. 1039.
Because it is clear that the defendant’s stalking con-
viction was predicated solely on constitutionally pro-
tected speech, his conviction cannot stand. See State
v. Parnoff, 329 Conn. 386, 394, 186 A.3d 640 (2018)
(‘‘[t]he first amendment bars the states from criminaliz-
ing pure speech, unless that speech falls into one of a
few constitutionally unprotected categories’’ (emphasis
omitted)); State v. Moulton, supra, 310 Conn. 362 (‘‘[W]e
recognize that our interpretation of § 53a-183 (a) (3)
permitting a jury to consider the caller’s speech in
determining whether the call was alarming or harassing
potentially gives rise to first amendment concerns. Such
constitutional concerns, however, readily may be elimi-
nated by limiting the reach of the statute to speech,
like true threats, that is not protected by the first amend-
ment.’’). Taking the protected speech out of the equa-
tion, the remaining evidence in the present case is insuf-
ficient to sustain a conviction under the stalking statute.
See State v. Nowacki, supra, 155 Conn. App. 788–89
(after removing protected speech from consideration,
remaining evidence was insufficient to sustain convic-
tion). Accordingly, the judgment with respect to the
defendant’s stalking in the second degree conviction
must be reversed.
C
Criminal Harassment
The operative language of the second degree harass-
ment statute provides in relevant part: ‘‘A person is
guilty of harassment in the second degree when: (1) By
telephone, he addresses another in or uses indecent or
obscene language; or (2) with intent to harass, annoy
or alarm another person, he communicates with a per-
son 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 man-
ner likely to cause annoyance or alarm; or (3) with
intent to harass, annoy or alarm another person, he
makes a telephone call, whether or not a conversation
ensues, in a manner likely to cause annoyance or
alarm.’’ General Statutes (Rev. to 2017) § 53a-183 (a).17
On appeal, as he did with his stalking conviction, the
defendant argues that his harassment conviction was
based exclusively on the April 7, 2018 Facebook conver-
sation—a constitutionally protected conversation that
he had with a third party on his own Facebook page—
and, thus, his conviction violates his first amendment
rights. The state disagrees. Instead of arguing that the
defendant’s posts contained in the April 7, 2018 Face-
book conversation were unprotected speech, the state
argues that ‘‘[t]he defendant’s conviction of harassment
in the second degree, under § 53-183, did not infringe
upon his first amendment rights because the defen-
dant’s Facebook posts consisted of speech and non-
speech, and under the test set forth in [United States
v. O’Brien, supra, 391 U.S. 377], the government has a
sufficient interest in regulating the nonspeech element
to justify the incidental limitations on first amendment
freedoms.’’ We disagree with the state.
Here, the harassment statute is unconstitutional as
applied to the defendant for largely the same reasons
that the criminal stalking statute is unconstitutional.
That conviction, like the stalking conviction, rested
solely on the content of the defendant’s April 7, 2018
Facebook conversation with a third party. Although
the state contends that the less demanding standard of
review utilized in United States v. O’Brien, supra, 391
U.S. 377, is applicable, and that it can satisfy that stan-
dard, its argument is misplaced. In O’Brien, the United
States Supreme Court applied what is now commonly
known as ‘‘intermediate scrutiny,’’ under which a ‘‘con-
tent-neutral regulation will be sustained under the [f]irst
[a]mendment if it advances important governmental
interests unrelated to the suppression of free speech
and does not burden substantially more speech than
necessary to further those interests.’’ Turner Broad-
casting System, Inc. v. Federal Communications Com-
mission, 520 U.S. 180, 189, 117 S. Ct. 1174, 137 L. Ed.
2d 369 (1997). O’Brien, however, ‘‘does not provide
the applicable standard for reviewing a content-based
regulation of speech,’’ which is the type of regulation
at issue in the present case. Holder v. Humanitarian
Law Project, supra, 561 U.S. 27; see id. (‘‘The [g]overn-
ment is wrong that the only thing actually at issue in
this litigation is conduct, and therefore wrong to argue
that O’Brien provides the correct standard of review.
. . . [Title 18 of the United States Code, § 2339B] regu-
lates speech on the basis of its content.’’ (Citations
omitted; footnote omitted.)). The United States
Supreme Court has made clear that, if a statute ‘‘gener-
ally functions as a regulation of conduct’’; (emphasis
omitted) id.; but, ‘‘as applied to plaintiffs the conduct
triggering coverage under the statute consists of com-
municating a message,’’ a court ‘‘ ‘must [apply] a more
demanding standard’ ’’ than the one described in
O’Brien. Id., 28, quoting Texas v. Johnson, 491 U.S. 397,
403, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). The state’s
O’Brien argument is therefore misplaced.
Furthermore, the state’s argument entirely ignores
our Supreme Court’s decision in State v. Moulton, supra,
310 Conn. 362. In Moulton, our Supreme Court made
clear that the reach of the second degree criminal
harassment statute is limited to speech ‘‘not protected
by the first amendment.’’ Id.; see also State v. Nowacki,
supra, 155 Conn. App. 783 (observing that Moulton
allows ‘‘consideration of the content of communication
when that content falls outside protected speech; for
example, when it contains obscenities, true threats, or
fighting words’’). In the present case, the state does not
argue that the speech in question that supported the
defendant’s harassment conviction is unprotected
under any exception to the first amendment. As a result,
and because the defendant’s harassment conviction was
predicated on speech protected by the first amendment,
the defendant’s harassment conviction similarly cannot
stand.18 See State v. Nowacki, supra, 783–84.
The remaining evidence, absent the protected speech,
is insufficient to sustain a conviction under the harass-
ment statute. See id., 788–89 (after removing protected
speech from consideration, remaining evidence was
insufficient to sustain harassment conviction). Accord-
ingly, the judgment with respect to the defendant’s
harassment in the second degree conviction also must
be reversed.
III
The defendant next claims that the prosecutor com-
mitted prosecutorial impropriety by failing to comply
with certain discovery requirements and by making
improper statements during closing arguments. In his
view, he was deprived of his right to a fair trial. We are
not persuaded.19
We begin by setting forth the applicable legal princi-
ples and standard of review that govern our resolution
of this claim. ‘‘In analyzing claims of prosecutorial
impropriety, we engage in a two step analytical process.
. . . The two steps are separate and distinct. . . . We
first examine whether prosecutorial impropriety
occurred. . . . Second, if an impropriety exists, we
then examine whether it deprived the defendant of his
due process right to a fair trial. . . . In other words, an
impropriety is an impropriety, regardless of its ultimate
effect on the fairness of the trial. Whether that impropri-
ety was harmful and thus caused or contributed to a
due process violation involves a separate and distinct
inquiry.’’ (Internal quotation marks omitted.) State v.
Payne, 303 Conn. 538, 560–61, 34 A.3d 370 (2012).
‘‘To determine whether the defendant was deprived
of his due process right to a fair trial, we must determine
‘whether the sum total of [the prosecutor’s] improprie-
ties rendered the defendant’s [trial] fundamentally
unfair, in violation of his right to due process. . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties.’ . . . State v. Thompson, 266Conn. 440, 460, 832 A.2d 626 (2003).’’ State v. Spencer,
275 Conn. 171, 180, 881 A.2d 209 (2005).
A
In the first instance, we must determine whether the
defendant’s claimed prosecutorial improprieties were,
in fact, improprieties. The defendant’s first set of alleged
improprieties pertain to the state’s alleged failure to
comply with its discovery obligations. He argues that
the state committed prosecutorial impropriety when it
(1) disclosed 121 pages of discovery to the defendant
immediately prior to the scheduled start of jury selec-
tion, (2) failed to provide the defendant with Walters’
address and criminal history, and (3) attempted to offer
a statement of the defendant as a statement of a party
opponent despite not disclosing that statement to the
defense.
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claim.
On September 18, 2019, the defendant filed a motion
requesting that the state disclose the names and
addresses of the witnesses it intended to call, as well
granted the motion and ordered the state to provide
the requested materials within one week. On September
24, 2019, the day jury selection was scheduled to begin,
the state provided the defendant with its list of wit-
nesses and also provided the defendant with 121 pages
of previously undisclosed discovery. The addresses and
criminal records of the state’s witnesses were not pro-
vided at that time. Defense counsel then argued before
the court that the state’s disclosure of the additional
discovery was untimely and in violation of our rules of
practice. Defense counsel further stated that, given this
untimely disclosure, he was not ready to proceed with
jury selection because he did not know what was in
the new discovery.
When the court asked the state to explain, the prose-
cutor responded: ‘‘[W]ith respect to the hundred and
twenty some odd pages, those are materials that were
received within—most of them within the last week,
some of them yesterday, from the victim as we’re pre-
paring for trial. . . . They’re in the form of Facebook
messages, Instagram, Twitter, Snapchat, that sort of
thing that—that the state became aware of very
recently. . . . But most of that is—and, again, just
recovered within the last week or so from the victim
and most of that I think is not related to the charged
offenses—the time periods . . . are different—but
there might be some exculpatory value in there; that’s
really why I’m turning it over . . . to [the] defense.’’
The prosecutor also stated that the state would not
object to a continuance for defense counsel to review
the new discovery.
Defense counsel then asked the court to ‘‘dismiss the
information or complaint and discharge the defendant,’’
as a sanction for the state’s untimely discovery disclo-
sure. The court denied defense counsel’s request for
sanctions and instead ordered a forty-five minute
recess, during which defense counsel could review the
new discovery. After the court proceedings resumed,
defense counsel stated that he did not want to proceed
with jury selection that day, given the new documents.
The court then continued jury selection until September
30, 2019, and agreed to hear the parties’ outstanding
motions on September 26, 2019.
On September 26, 2019, the defendant noted that he
had not yet received the criminal histories or addresses
for the state’s witnesses, despite such disclosures being
due the day before. The state then stated that it did not
plan to call most of the witnesses on its list but that,
for any witnesses it planned to call, it would provide
the requested information to the defendant. The court
then ordered the state to provide the defendant with
the criminal histories and addresses for the witnesses
it intended to call within one week.
By the start of trial on November 4, 2019, however,
the state had not provided the defendant with criminal
histories and addresses for most of its listed witnesses.
Specifically, the state had provided such information
for A and her husband but had not provided that infor-
mation for Walters, whom it intended to call.20 After
the defendant raised this lack of disclosure with the
court, the state again promised to provide Walters’ crim-
inal history and address before he testified but also
noted that it did not believe Walters had any criminal
history.
On November 5, 2019, the second day of trial, the
state had not provided Walters’ address or criminal
history. Defense counsel then asked the court to find
that the state had not complied with the court’s order
and requested that the state be sanctioned for its non-
compliance. Defense counsel proposed that ‘‘an appro-
priate sanction is that Mr. Walters not be allowed to
testify in this matter. The alternative . . . obviously
the most drastic request would be for a mistrial.’’ There-
after, the court asked the state to respond, to which the
state remarked that the defendant could have located
Walters on his own, given that Walters was a local
witness whom the defendant knew. The court denied
defense counsel’s request for sanctions, concluding that
any prejudice to the defendant from the state’s failure
to provide Walters’ information was minimal because
the defense almost certainly could have located Walters
on its own, given that the defendant knew Walters and
that the case involved ‘‘a relatively small community in
terms of the people attending this karate school.’’
Thereafter, during A’s testimony, the state attempted
to offer into evidence a statement by the defendant that
he had made during a conversation with her. Defense
counsel objected, arguing that the state had never dis-
closed the statement that it now sought to admit. The
court sustained the objection and ruled that the state-
ment was inadmissible. The state proceeded with its
case without offering the undisclosed statement.
In reviewing the defendant’s claims of prosecutorial
impropriety, it is manifest that the aforementioned
claims amount to alleged violations of discovery orders.
As this court has held, a defendant’s claim that the state
failed to comply sufficiently with a discovery obligation
generally will not ‘‘provide a proper basis for a claim
of prosecutorial [impropriety] on appeal.’’ State v. Ber-
mudez, 94 Conn. App. 155, 158–59, 891 A.2d 984, cert.
denied, 277 Conn. 933, 896 A.2d 102 (2006). Rather, ‘‘a
party seeking a remedy for the opposing party’s failure
to comply with required disclosures may move the trial
court for an appropriate order pursuant to Practice
Book § 40-5.’’21 Id., 159. ‘‘Practice Book § 40-5 [grants]
broad discretion to the trial judge to fashion an appro-
priate remedy for noncompliance with discovery.’’
(Internal quotation marks omitted.) State v. Hargett,
343 Conn. 604, 631, 275 A.3d 601 (2022). We therefore
conclude that the alleged discovery violations in the
present case do not amount to prosecutorial impropri-
ety. We instead interpret the defendant’s arguments as
claims that the trial court did not properly sanction the
state for alleged violations of its discovery obligations.
See State v. Bermudez, supra, 159 (‘‘[w]e . . . interpret
the defendant’s claim regarding [her codefendant’s]
statement not as a prosecutorial [impropriety] claim,
but as a claim that the court should have sanctioned
the prosecution by prohibiting the introduction of [her
codefendant’s] statement through [the police officer’s]
testimony’’). We address these arguments in turn.
As noted, ‘‘Practice Book § 40-5 [grants] broad discre-
tion to the trial judge to fashion an appropriate remedy
for noncompliance with discovery.’’ (Internal quotation
marks omitted.) State v. Hargett, supra, 343 Conn. 631.
A trial court may enter such orders as it deems appro-
priate, including ‘‘(1) [r]equiring the noncomplying
party to comply; (2) [g]ranting the moving party addi-
tional time or a continuance; (3) [r]elieving the moving
party from making a disclosure required by these rules;
(4) [p]rohibiting the noncomplying party from introduc-
ing specified evidence; (5) [d]eclaring a mistrial; (6)
[d]ismissing the charges; (7) [i]mposing appropriate
sanctions on the counsel or party, or both, responsible
for the noncompliance; or (8) [e]ntering such other
order as it deems proper.’’ Practice Book § 40-5. ‘‘[T]he
primary purpose of a sanction for violation of a discov-
ery order is to ensure that the defendant’s rights are
protected, not to exact punishment on the state for its
allegedly improper conduct. As we have indicated, the
formulation of an appropriate sanction is a matter
within the sound discretion of the trial court. . . . In
determining what sanction is appropriate for failure to
comply with court ordered discovery, the trial court
should consider the reason why disclosure was not
made, the extent of prejudice, if any, to the opposing
party, the feasibility of rectifying that prejudice by a
continuance, and any other relevant circumstances.’’
(Internal quotation marks omitted.) State v. Respass,
256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S.
1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
Appellate review of a trial court’s remedy for noncom-
pliance with discovery, ‘‘[a]s with any discretionary
action of the trial court . . . requires every reasonable
presumption in favor of the action, and the ultimate
issue is whether the trial court could reasonably con-
clude as it did. . . . In general, abuse of discretion
exists when a court could have chosen different alterna-
tives but has decided the matter so arbitrarily as to
vitiate logic, or has decided it based on improper or
irrelevant factors.’’ (Citation omitted; internal quotation
marks omitted.) State v. Jackson, 334 Conn. 793, 811,
224 A.3d 886 (2020).
With respect to the defendant’s first alleged violation,
he claims that the state improperly waited until the eve
of jury selection to provide 121 additional records it
should have produced earlier during discovery. To that
end, Practice Brook § 40-11 provides in relevant part:
‘‘(a) Upon written request by a defendant filed in accor-
dance with Section 41-5 and without requiring any order
of the judicial authority, the prosecuting authority, sub-
ject to Section 40-40 et seq., shall promptly, but no later
than forty-five days from the filing of the request, unless
such time is extended by the judicial authority for good
cause shown, disclose in writing the existence of, pro-
vide photocopies of, and allow the defendant in accor-
dance with Section 40-7, to inspect, copy, photograph
and have reasonable tests made on any of the following
items: (1) Any book, tangible objects, papers, photo-
graphs, or documents within the possession, custody
or control of any governmental agency, which the prose-
cuting authority intends to offer in evidence in chief at
trial or which are material to the preparation of the
defense or which were obtained from or purportedly
belong to the defendant . . . .
***
‘‘(b) In addition to the foregoing, the prosecuting
authority shall disclose to the defendant, in accordance
with any applicable constitutional and statutory provi-
sions, any exculpatory information or materials that
the prosecuting authority may have, whether or not a
request has been made therefor.’’
There is no dispute that the 121 records at issue were
provided to the defendant on the eve of jury selection.
The record reflects, however, that the state received
additional materials from the victim just prior to trial
and that, pursuant to the state’s continuing duty to
disclose evidence, it turned over that information after
it came to its attention. There was no indication that
the late disclosure was done in bad faith. To the extent
the defendant’s argument can be interpreted as an argu-
ment that a more severe sanction should have been
imposed, we are not persuaded. On learning about this
late disclosure, the court reasonably gave defense coun-
sel a forty-five minute recess during which he could
review the new discovery. The court then granted
defense counsel’s motion for a continuance. The court’s
continuance sufficiently protected the defendant’s
rights by ameliorating the prejudice caused by the late
disclosure. We therefore conclude that the court did
not abuse its discretion. See State v. Festo, 181 Conn.
254, 266, 435 A.2d 38 (1980) (‘‘trial court did not abuse
its discretion by affording the defendants more time to
examine and analyze the evidence in lieu of granting
their motions for a mistrial and motions for suppression
of evidence’’).
We similarly conclude that the court did not abuse
its discretion when it declined to sanction the state for
the state’s failure to provide the defendant with Walters’
criminal history and address. At trial, after the state
still had not provided that information, defense counsel
asked the court to sanction the state, either by barring
Walters from testifying or declaring a mistrial. The
court, however, declined to order a sanction, stating:
‘‘It’s, like, apparent from the record that there was non-
compliance. The question is what the sanction is. The
opinion of the court is that the fact situation of this
matter involved a relatively small community in terms
of the people attending this karate school. I think it’s
highly likely that your client knew who this person was.
With your investigators, I think you could have found
out who he was. I’m not disputing that there was failure
to comply by the state, but the question is what the
sanction is, and I am not going to preclude this gentle-
man from testifying. . . . I don’t think that there is
sufficient damage here to justify a sanction of preclud-
ing him from testifying, so, therefore, your request in
that regard is denied.’’
In considering, but ultimately declining, to sanction
the state for its failure to provide the defendant with
Walters’ criminal history and address, the court took
appropriate action, as required by State v. Jackson,
supra, 334 Conn. 810–11. As explained, our rules of
practice give trial courts ‘‘broad discretion to . . .
fashion an appropriate remedy for noncompliance with
discovery.’’ Id. In the present case, the court concluded
that the severe sanction of precluding Walters from
testifying was inappropriate given the minimal preju-
dice from the state’s noncompliance. The court aptly
noted that it was likely that the defendant knew who
Walters was and could have obtained that information
if he had chosen to do so. Additionally, the record
reflects that Walters’ name had been included in the
list of potential witnesses at jury selection as early as
October 16, 2019, and on a witness list as early as
September 24, 2019, at least two weeks before the trial
began on November 4, 2019. The court was well within
its discretion in reaching the result that it did, particu-
larly because the record supports the court’s finding
that the defendant was not sufficiently prejudiced.
Moreover, defense counsel’s two requested sanc-
tions—the suppression of relevant, material and other-
wise admissible evidence or the declaration of a mis-
trial—are both ‘‘severe sanction[s] which should not be
invoked lightly.’’ (Internal quotation marks omitted.)
State v. Hargett, supra, 343 Conn. 632; see id., 633 (‘‘sup-
pression of the evidence, dismissal of all charges, or a
mistrial is a severe sanction that courts should invoke
only when absolutely necessary’’). We conclude that
the trial court did not abuse its discretion because,
given the specific facts at hand and the harmlessness
of the state’s discovery violation, the violation did not
necessitate the severe sanctions defense counsel
requested.
To the extent that the defendant is arguing the court
was required to sanction the state pursuant to State v.
Jackson, supra, 334 Conn. 793, we disagree. Jackson
does not state that a court must order sanctions in
every case in which a party fails to comply with the
rules of discovery. To the contrary, Jackson speaks in
terms of the broad discretion that trial courts have in
fashioning an appropriate remedy. Id., 810–11. What is
appropriate in a given case will vary. This includes
whether to sanction a party in the first instance. For
the reasons explained, we conclude that the court was
well within its discretion in not imposing the sanctions
requested by defense counsel.
Finally, the defendant claims that the state failed
to disclose one of the defendant’s statements that it
intended to introduce at trial and then tried to admit
that statement at trial. In response to defense counsel’s
objection, the court sustained it and ruled that the state-
ment was inadmissible. To the extent the defendant is
arguing that the court should have imposed a more
severe sanction, such as a mistrial, we are not per-
suaded. The court’s ruling precluding that statement as
evidence clearly ameliorated any prejudice stemming
from the late disclosure of that statement. On the record
before us, we cannot conclude that the court abused
its discretion when it precluded the admission of the
statement.
B
The defendant also makes additional claims of prose-
cutorial impropriety pertaining to statements made by
the prosecutor during closing arguments. He claims
that the prosecutor improperly (1) used the term ‘‘red
herring’’ in advancing his argument and (2) referenced
facts not in evidence. We disagree.
It is well known that ‘‘[p]rosecutorial [impropriety]
of a constitutional magnitude can occur in the course of
closing arguments. . . . In determining whether such
[impropriety] has occurred, the reviewing court must
give due deference to the fact that [c]ounsel must be
allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based [on] the facts in evidence
and the reasonable inferences to be drawn therefrom.
. . . Moreover, [i]t does not follow . . . that every use
of rhetorical language or device [by the prosecutor] is
improper. . . . The occasional use of rhetorical
devices is simply fair argument. . . . Nevertheless, the
prosecutor has a heightened duty to avoid argument
that strays from the evidence or diverts the jury’s atten-
tion from the facts of the case.’’ (Internal quotation
marks omitted.) State v. Weaving, 125 Conn. App. 41,
46–47, 6 A.3d 203 (2010), cert. denied, 299 Conn. 929,
12 A.3d 569 (2011).
During closing argument, the prosecutor remarked:
‘‘Now, there was some cross-examination by defense
counsel about when [A’s] husband knew . . . [about
the affair] and when he didn’t know. That’s . . . a red
herring . . . that was a distracting bit of information.
Whether . . . [A’s] husband . . . knew about the
affair . . . that’s not relevant.’’ According to the defen-
dant, the state’s use of the term ‘‘red herring’’ was
improper because it questioned the credibility of and
disparaged defense counsel. The state argues that the
phrase ‘‘red herring’’ was proper because it was used
to respond to the defendant’s theory of defense, not to
disparage defense counsel. We agree with the state.
‘‘[T]here is ample room, in the heat of argument, for
the prosecutor to challenge vigorously the arguments
made by defense counsel. . . . Furthermore, [t]here
is a distinction between argument that disparages the
integrity or role of defense counsel and argument that
disparages a theory of defense.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 789, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014). The former is improper, but the
latter is permitted. Id.In the present case, the state’s use of the term ‘‘red
herring’’ was not improper. During his cross-examina-
tion of A, defense counsel was able to elicit from her
conflicting testimony regarding when she told her hus-
band about the affair. When the state’s closing argument
is considered within this context, it becomes clear that
the state’s use of the term ‘‘red herring’’ was intended
to rebut a portion of the defendant’s theory of defense,
specifically that A was not credible. Contrary to the
defendant’s argument, the state’s use of ‘‘red herring’’
was not directed at defense counsel’s character or credi-
bility and did not impugn or disparage him. Thus,
because the state used the phrase ‘‘red herring’’ to
respond to the defendant’s theory of the case, the use
of that phrase did not constitute prosecutorial impropri-
ety. See State v. Fauci, 282 Conn. 23, 39–40, 917 A.2d
978 (2007) (state’s use of term ‘‘red herring’’ in closing
argument did not constitute prosecutorial impropriety
because prosecutor used term only to rebut defense
counsel’s argument).
Furthermore, the prosecutor stated: ‘‘[Y]ou heard [A]
testify that she lives kind of out in the middle of nowhere
in rural Putnam, not like the downtown area of Putnam,
and [it] would take . . . kind of an effort to get to this
particular house, especially on a bicycle. And [there
was] no evidence that the defendant had a car; the
evidence is that the defendant gets around by a bicycle
. . . .’’ (Emphasis added.) According to the defendant,
the state’s comment that it would have taken effort to
get to A’s home was not supported by the evidence
introduced at trial. The state, on the other hand, argues
that this remark was permissible because it properly
referred to facts in evidence and then invited the jury
to draw a reasonable inference based on those facts.
We agree.
‘‘A prosecutor may invite the jury to draw reasonable
inferences from the evidence; however, he or she may
not invite sheer speculation unconnected to evidence.
. . . The rationale for the rule prohibiting the state from
making such a reference is to avoid giving the jury the
impression that the state has private information, not
introduced into evidence, bearing on the case.’’ (Inter-
nal quotation marks omitted.) State v. Stevenson, 269
Conn. 563, 587, 849 A.2d 626 (2004).
At trial, A testified that she lived in a rural part of
Putnam. She also testified that the defendant’s primary
mode of transportation was a bicycle. Accordingly, the
challenged statement was supported by facts properly
in evidence. Moreover, the state’s assertion that it would
have taken some effort for the defendant to reach A’s
home was a reasonable inference for it to invite the
jury to draw, given that A lived in a rural area and the
defendant traveled only by bicycle. Thus, because the
state’s remark amounted to a reasonable inference that
was based on facts in evidence, it did not constitute
prosecutorial impropriety. See id. Because we deter-
mine that no impropriety existed, our inquiry ends
there.
The judgment is reversed with respect to the defen-
dant’s conviction of harassment in the second degree
and stalking in the second degree and the case is
remanded with direction to render a judgment of acquit-
tal on those charges only and for resentencing
according to law; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
Unless otherwise indicated, all references to § 53a-181d in this opinion
are to the version appearing in the 2018 supplement to the General Statutes.
2
Unless otherwise indicated, all references to § 53a-183 in this opinion
are to the 2017 revision of the statute.
3
We note at the outset that we address the defendant’s claims in a different
order than which he briefed them.
4
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
5
Nunchucks are ‘‘a martial arts weapon consisting of two short wooden
sticks connected by a piece of chain which [can] be whirled with a circular
motion and thrown . . . .’’ 8 American Law of Products Liability (3d Ed.
Rev. 2010) § 102:24, p. 100.
6
The defendant had stopped attending the karate school after A ended
their relationship because the school’s owner had asked him to take some
time off from the school.
7
Exhibit 11 is the only exhibit that detailed a posting on April 7, 2018.
The exhibit contains seven pages of Facebook screenshots taken from a
cell phone. Because the screenshots do not clearly set forth the chronology
of the conversation, we have attempted to put the conversational posts in
chronological order. The plaintiff included a copy of exhibit 11 in his appen-
dix filed with this court.
8
It appears that, following this Facebook post, there were various conver-
sational posts that took place under it. The content of those posts, however,
is not visible in exhibit 11 and was not otherwise provided to the jury. The
posts that are set forth in this opinion are those visible in exhibit 11.
9
The defendant was originally charged with a single count of violating a
restraining order in violation of § 53a-223b. On the day that jury selection was
initially scheduled to begin, the state filed an amended long form information
adding seven new criminal charges against the defendant. These charges
alleged different statutory violations stemming, at least in part, from acts
occurring prior to April 7, 2018. The defendant filed a motion to dismiss,
arguing, inter alia, that the additional charges were barred by the statute
of limitations. In response, the state filed a new, three count information
that removed the time barred charges.
With respect to the violation of a restraining order charge, the operative
information states: ‘‘Assistant State’s Attorney Andrew J. Slitt, for the Judicial
District of Windham, accuses BLAIR BILLINGS (D.O.B. February 23, 1968),
now or formerly of Killingly, Connecticut of CRIMINAL VIOLATION OF A
RESTRAINING ORDER, and charges that on or about April 7, 2018, in the
town of PUTNAM, within the judicial district of Windham, the said BLAIR
BILLINGS, when a restraining order has been issued against such person,
contacted and harassed a person in violation of that order, in violation of
. . . § 53a-223b (a) (2).’’
With respect to the stalking charge, the operative information states: ‘‘Said
Assistant State’s Attorney further accuses BLAIR BILLINGS of STALKING
IN THE SECOND DEGREE, and charges that on or about April 7, 2018 in
the town of PUTNAM, said BLAIR BILLINGS, knowingly engaged in a course
of conduct by harassment on social media directed at a specific person,
[A], that would cause a reasonable person to suffer emotional distress in
violation of . . . § 53a-181d (b) (1).’’
With respect to the harassment charge, the operative information states:
‘‘Said Assistant State’s Attorney further accuses BLAIR BILLINGS of
HARASSMENT IN THE SECOND DEGREE, and charges that on or about
April 7, 2018 in the town of PUTNAM, said BLAIR BILLINGS, with the intent
to harass, annoy, or alarm [A] he communicates with another person by
social media in a manner likely to cause annoyance and alarm in violation
of . . . § 53a-183 (a) (2).’’
10
It is well established that those earlier social media posts could not
serve as substantive evidence of a violation of the three statutes with which
the defendant was charged. See State v. Randolph, 284 Conn. 328, 340, 933
A.2d 1158 (2007) (‘‘[a]s a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty of the crime of
which the defendant is accused’’ (internal quotation marks omitted)).
11
On the charge of violation of a restraining order, the court sentenced
the defendant to a period of five years of incarceration, execution suspended
after nine months, followed by three years of probation. The defendant also
was sentenced to ninety days of incarceration on the second degree stalking
charge and sixty days of incarceration on the second degree harassment
charge, with those sentences to run concurrently with the sentence for the
violation of a restraining order charge.
12
On appeal, the defendant does not claim that the court’s admission of
the challenged exhibits was based on an incorrect view of the law.
13
To the extent that the defendant contends on appeal that the screenshots
also should not have been admitted because they ‘‘were not in the sole
custody of the witness[es], the state took no investigative acts which could
have properly authenticated the evidence, and the documents were not
complete,’’ those arguments are inadequately briefed given that they were
mentioned only briefly and never were analyzed in the defendant’s briefs.
See C. B. v. S. B., 211 Conn. App. 628, 630, 273 A.3d 271 (2022) (‘‘[W]e are
not required to review issues that have been improperly 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. . . . For a reviewing court to judiciously and effi-
ciently . . . consider claims of error raised on appeal . . . the parties must
clearly and fully set forth their arguments in their briefs.’’ (Internal quotation
marks omitted.)).
14
The defendant does not make this argument as to the charge of violation
of a restraining order. He ‘‘acknowledges that in the light most favorable,
[the] jury could have found that he talked about [A] on social media on
April 7, 2018, despite not using any names, and was therefore guilty of
violating the restraining order, as charged and argued to the jury.’’
15
We note that the defendant’s claim is unpreserved and that he seeks
review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
‘‘The record is adequate for review, and the claim, asserting a violation of
the defendant’s right to freedom of speech, is of constitutional magnitude.’’
State v. Moulton, 120 Conn. App. 330, 335, 991 A.2d 728 (2010), aff’d in part,
310 Conn. 337, 78 A.3d 55 (2013).
16
In 2021, the legislature made substantial substantive changes to the
second degree stalking statute. See Public Acts 2021, No. 21-56, § 2. The
new version of the statute, effective October 1, 2021, provides in relevant
part: ‘‘(b) A person is guilty of stalking in the second degree when:
‘‘(1) Such person knowingly engages in a course of conduct directed at
or concerning a specific person that would cause a reasonable person to
(A) fear for such specific person’s physical safety or the physical safety of
a third person; (B) suffer emotional distress; or (C) fear injury to or the death
of an animal owned by or in possession and control of such specific person;
‘‘(2) Such person with intent to harass, terrorize or alarm, and for no
legitimate purpose, engages in a course of conduct directed at or concerning
a specific person that would cause a reasonable person to fear that such
person’s employment, business or career is threatened, where (A) such
conduct consists of the actor telephoning to, appearing at or initiating com-
munication or contact to such other person’s place of employment or busi-
ness, including electronically, through video-teleconferencing or by digital
media, provided the actor was previously and clearly informed to cease
such conduct, and (B) such conduct does not consist of constitutionally
protected activity; or
‘‘(3) Such person, for no legitimate purpose and with intent to harass,
terrorize or alarm, by means of electronic communication, including, but
not limited to, electronic or social media, discloses a specific person’s
personally identifiable information without consent of the person, knowing,
that under the circumstances, such disclosure would cause a reasonable
person to:
‘‘(A) Fear for such person’s physical safety or the physical safety of a
third person; or
‘‘(B) Suffer emotional distress.’’ General Statutes (Supp. 2022) § 53a-
181d (b).
17
In 2021, the legislature substantially revised the elements of the offense.
See Public Acts 2021, No. 21-56, § 5. Effective October 1, 2021, the statute
now provides in relevant part: ‘‘(a) A person is guilty of harassment in the
second degree when with intent to harass, terrorize or alarm another person,
and for no legitimate purpose, such person: (1) Communicates with a person
by telegraph or mail, electronically transmitting a facsimile through connec-
tion with a telephone network, electronic mail or text message or any other
electronically sent message, whether by digital media account, messaging
program or application, or otherwise by computer, computer service or
computer network, as defined in section 53a-250, or any other form of
communication, in a manner likely to cause terror, intimidation or alarm;
(2) makes a telephone call or engages in any other form of communication,
whether or not a conversation ensues, in a manner likely to cause terror,
intimidation or alarm; or (3) communicates or shares a photograph, video
or words or engages in any other form of communication to a digital,
electronic, online or other meeting space, in a manner likely to cause terror,
intimidation or alarm. . . .’’ General Statutes (Supp. 2022) § 53a-183.
18
To the extent the state’s brief can be interpreted as arguing that the
defendant’s posts contained in the April 7, 2018 Facebook conversation
were unprotected under the speech integral to criminal conduct exception
to the first amendment as it pertains to the defendant’s harassment convic-
tion, that argument fails for the same reasons as discussed in part II B of
this opinion.
19
Although not all of the defendant’s claims of prosecutorial impropriety
are preserved, ‘‘under settled law, a defendant who fails to preserve claims
of prosecutorial [impropriety] need not seek to prevail under the specific
requirements of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
and, similarly, it is unnecessary for a reviewing court to apply the four-
pronged Golding test.’’ (Internal quotation marks omitted.) State v. Ortiz,
343 Conn. 566, 579, 275 A.3d 578 (2022). Accordingly, we review all of the
defendant’s prosecutorial impropriety claims regardless of whether those
claims were properly preserved at trial. See id.20
Although the state also planned to call several state troopers, the clerk
of the Putnam Superior Court, and a state marshal as witnesses, the defen-
dant did not request the criminal histories or address for any of those
individuals.
21
Practice Book § 40-5 provides in relevant part: ‘‘If a party fails to comply
with disclosure as required under these rules, the opposing party may move
the judicial authority for an appropriate order. . . .’’