OVERVIEW On October 21, 2010, the Defendant-Appellant, Teri Buhl, was arrested pursuant to a warrant charging her with

violations of C.G.S.§ 53a–183(a)(2) (Harassment in the Second Degree), C.G.S.§ 53a-181(a)(4) (Breach of Peace) and C.G.S.§ 53a-167a (Interfering With an Officer). The arrest was precipitated by reports from two complainants, Meagan Brody (“Ms. Brody”) and her father Paul Brody (“Mr. Brody”), who told the police that .somebody identified as “Tasha Moore” posted material on Facebook containing statements about Ms. Brody, along with pictures of various diary entries. Police were also informed that an anonymous package containing copies of Ms. Brody’s diary pages was sent to Mr. Brody. The Defendant pled “not guilty” to these charges and elected a Bench Trial. On May 2, 2012, the Defendant-Appellant filed a Motion to Dismiss the Information and a motion pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Court heard the Motions on or about July 23, 2012. The Court (Hon. Dennis J.) denied the same on September 25, 2012. Thereafter, the Defendant proceeded to a Bench Trial (Hon. Wenzel J. presiding) on March 22, 2013. During the one day Trial, the State led evidence in the form of (1) a posting by “Tasha Moore”, (2) the contents of a package received by Mr. Brody, (3) evidence regarding the contents of the package received by Mr. Brody, (4) testimony of Ms. Brody and Mr. Brody, (5) testimony of the investigating officers, and (5) testimony of a Cablevision Representative pertaining to the Defendant’s “IP address.” The State never positively identified the Defendant as “Tasha Moore,” or otherwise established the “IP address” as linked to “Tasha Moore’s” Facebook account. Furthermore, the State did not call a Facebook representative, or any expert that was qualified to testify about

Facebook mechanics. Ironically, the State’s failure to do so, ignored the Court’s purported admonitions that it was wholly unfamiliar with Facebook — that it did not know or understand how Facebook worked. The Defendant moved for judgment of acquittal on all counts at the close of the State’s case, however, the same was denied. Trial Counsel elected not to put on a case, and after closing arguments the Court found the Defendant guilty of Harassment in the Second Degree, and Breach of Peace, but acquitted her of the Interfering charge. Post Verdict Motions to Set Aside and New Trial were filed, and the same were heard and denied on April 4, 2013 Thereafter, the Court sentenced the Defendant to three months incarceration, suspended after fifteen (15) days, and one year probation on the Harassment Count, and six months incarceration executed suspended after fifteen (15) days, with one year probation on the Breach of Peace Count. The Court further ordered these sentences to run consecutive with each other for a total effective sentence of nine months incarceration, execution suspended after thirty days followed, by one year probation. The Defendant had no prior record at the time of sentencing. This Appeal followed. FACTS A. The Defendant At the time of the events leading to the Defendant’s arrest and prosecution, the Defendant was a journalist. See Tr. 3/22/13, at 57. More specifically, she was an investigative journalist who worked for “various publications” including Greenwich Time. Id. Moreover, at the time of the events leading to her arrest, the Defendant was working on an investigative report about underage drinking that was going on in New Canaan,

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Connecticut. Tr. 3/22/13, at 70-71. The evidence revealed that, in or about the same time period, the Defendant was involved in a romantic relationship with Mr. Brody. Tr. 3/22/13, at 45,, for approximately two years. Tr. 3/22/13, at 54. Their relationship was a “good” one, and the Defendant would occasionally spend time at Mr. Brody’s home. Tr. 3/22/13, at 45, 54. According to the evidence there was no animosity between the Defendant and Mr. Brody. Tr. 3/22/13, at 54. B. Facebook Posts The evidence also established that sometime in June of 2010, after high-school graduation, Ms. Brody returned home from a dinner at a friend’s house. Tr. 3/22/13, at 10. She was planning to change her clothes and then go “hang out” with her friends. Tr. 3/22/13, at 10-11. When she came home, Ms. Brody received a phone call from a friend who told her that he had seen “a fake Facebook profile about [her].” Id. This friend saw the “fake” Facebook profile, as a result of being “friended” by the profile’s owner who was listed as “Tasha Moore).” Tr. 3/22/13, at 18. Subsequently, Ms. Brody used a friend’s Facebook profile, not her own, to access the “fake” profile and investigate her friend’s claim. Tr. 3/22/13 at 24.1 Ms. Brody was never invited or “friended” by the owner of this “fake” Facebook profile, to view any contents or postings. Tr. 3/22/13, at 24. Such an invitation would have needed to be undertaken privately. Tr. 3/22/13, at 25.

                                                                                                                       
1

 According to Ms. Brody, even the copies of the Facebook postings that she eventually took to the police were probably printed through her friend’s Facebook page, and not her own. Tr. 3/22/13, at 39.   2 The trial exhibits reveal that the pages contained Ms. Brody’s account of a party she was at where alcohol was served to minors, as well as her behavior at that party.  

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Ms. Brody discovered this “Facebook profile” under the name of “Tasha Moore.” Tr. 3/22/13, at 11. According to her, it contained “just a bunch of nasty words” and “postings” of some of her diary entries. Id. The diary entries identified were copies of loose notes written by Ms. Brody “outside of the diary”  while she was on vacation; according to Ms. Brody, they were subsequently “stuffed” in the back of a drawer in her bedroom nightstand. Id. The notes contained Ms. Brody’s statements about a friend with whom she was angry, along with written “venting” about “some things had happened the night before.” Tr. 3/22/13, at 13.2 Notably, the “nasty words” posted on the “Tasha Moore” Facebook page were associated with a photo that, according to Ms. Brody, was not even a photo of her. Tr. 3/22/13, at 17.3 According to Ms. Brody, reading these Facebook “postings” made her “too upset to go out that night,” and “too upset to deal with it.” Tr. 3/22/13, at 13, 18. The next morning, Ms. Brody “decided [she] should probably do something about” these postings and responded to the fake account, warning that if the posts were not removed she “would take it to the police”. Tr. 3/22/13, at 18. When the posts remained, Ms. Brody did as she promised and went to the police with all the information she had. Tr. 3/22/13, at 19. She testified also that she called both of her parents (including Mr. Brody) and told them that told them that someone was “harassing” her online, and described for them the substance of the Facebook harassment she complained of. Tr. 3/22/13 at 19, 20. Ms. Brody called immediately after leaving the police station. Tr. 3/22/13, at 20.

                                                                                                                       
2

The trial exhibits reveal that the pages contained Ms. Brody’s account of a party she was at where alcohol was served to minors, as well as her behavior at that party.   3  Ms. Brody’s exact testimony was that  she “was really upset because the person that they had identified was not even -- was not the right person.” Tr. 3/22/13, at 17.  
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Ms. Brody was unaware of who would take and post her diary entries; initially she told police she suspected it may have been friends who visited her home, however at Trial this changed, and by then “she did not think that any of [her] friends had done it.” Tr. 3/22/13, at 19-20. C. Anonymous Mail After learning of the postings, Mr. Brody returned with his daughter to the police.4 Tr. 3/22/13, at 46. He didn’t see the postings, he learned of the details directly from his daughter Megan. Tr. 3/22/13, at 45-46. On June 24, 2010, Mr. Brody received (by overnight mail) a sealed envelope addressed to him, containing an unsigned note and copies of pages containing diary entry material purportedly written by his daughter. Tr. 3/22/13, at 46-47. After reading his daughter’s diary entries he felt “shocked and surprised.” Tr. 3/22/13, at 47. The next day, Mr. Brody told the Defendant about the letter while the two were at dinner. Tr. 3/22/13, at 48. He told her that he was “shocked” and that this “crazy thing” was going on. Id. Two days later, she told him that she had “something to tell [him]” and it “might not make [him] happy,” but that she had to “tell [him] t. . . anyways.” Id. It was then she informed Mr. Brody that she was contacted by a “girl” who claimed to be “a friend or a friend of a friend” of Ms. Brody. Id. Further, that the friend was concerned about Ms. Brody and had “things” to disclose. Id. Accordingly, Defendant met the girl, whereupon she showed the Defendant copies of Ms. Brody’s journal entries. Id. She told the friend that she should turn the copies over to her, with an explanatory cover

                                                                                                                       
4

would be the second time Ms. Brody went to the police in connection with this incident.  
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 This

note, and she would send it to Mr. Brody. . Id. The Defendant confirmed she sent the overnight envelope. Id. Mr. Brody was relieved and thought that maybe now he was “getting somewhere.” Tr. 3/22/13, at 59. When asked who this “girl” was, the Defendant would not reveal the source. Id. She explained to him that she “had promised to keep that information confidential.”5 Id. D. The Investigation The investigation began with Ms. Brody bringing Facebook printouts of the police station; they were “probably” printed through her friend’s account. Tr. 3/22/13, at 66. According to Officer Gulino, Ms. Brody appeared “visibly distraught” upon first reporting the incident to police. Id. Police testimony confirmed that Ms. Brody returned to the police station a couple of days later accompanied by her father, Mr. Brody. Tr. 3/22/13, at 67. At this second “meeting” Mr. Brody informed police of the “package in the mail of some diary pages,” and “an anonymous letter advising him as to what his daughter has been up to.” Tr. 3/22/13, at 67. Further he informed Officer Gulino that the Defendant set the package. Tr. 3/22/13, at 68. He testified that Mr. Brody appeared “visibly shaken” as well. Tr. 3/22/13, at 67. And lastly, Guilino was informed that the Defendant agreed to contact the police on her own. Tr. 3/22/13, at 68-69. As promised, the Defendant did contact the police thereafter, via e-mail, and telephone (she left a voice mail). Id. Officer Gulino responded to the Defendant’s communications by calling her on her phone. Tr. 3/22/13, at 69-70. The Defendant
                                                                                                                       
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Mr. Brody’s testimony further suggests that he knew about the Defendant’s journalistic responsibilities, and habits of keeping her sources’ identities confidential, when he revealed that the Defendant told him on more than one occasion about keeping source identity confidential. Tr. 3/22/13, at 59.
 

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spoke with Officer Gulino and during the conversation she informed him that she was doing an investigative report on “underage drinking that was going on in New Canaan.” Tr. 3/22/13, at 70. The Defendant was asked directly whether she was “Tasha Moore,” to which she responded: “I’m Teri Buhl, not Tasha Moore.” Tr. 3/22/13, at 71. Defendant never admitted to being Tasha Moore or to the Facebook posting. Tr. 3/22/13, at 77. Unsatisfied with the Defendant’s responses, Gulino advised her that “if she wanted to make a statement, now would be the time to do it,” because otherwise, he would have pursue ex-parte warrants and “spend hours and days on leg work” to get information; at that point, his supervisors would “want to see the fruits of that work.” Tr. 3/22/13, at 72-73. Further, that she would be “prosecuted to the fullest extent of the law.” Id. When asked to explain this “warning” to the Defendant, Gulino testified that he was trying to get her to provide him with information so that he could “put this to rest early,” because he was “not looking to go on for a lengthy investigation.” Tr. 3/22/13, at 79. If the Defendant provided him with her source, Gulino would have “tried to -- sitting down and resolve the issue with the family prior to it having it come to this6.” Id. When Gulino, was unable to obtain the information he wanted from the Defendant, the investigation was passed on to Sergeant Ogrinc. Tr. 3/22/13, at 82. She reviewed the documents and the reports provided to her, and thereafter executed an ex-parte order requiring Facebook to provide information connected to “Tasha Moore.” Tr. 3/22/13 at 82-83. She also executed an ex-parte order on Cablevision,

                                                                                                                       
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 “This”

being the arrest and prosecution of the Defendant.  
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which resulted in her acquiring an IP address connected with the Defendant. Tr. 3/22/13, at 84-8.7 E. The Trial At Trial, the State introduced its evidence via five witnesses – Ms. Brody, Mr. Brody, Officer Gulino, Sergeant Ogrinc and a Cablevision representative. The State did not call representatives from Facebook, or anyone qualified, to explain how Facebook works, its policies, features, lexicon, functions and/or the nature of or various “settings.” Evidence regarding how and what Ms. Brody saw on Ms. Moore’s Facebook profile was introduced solely through Ms. Brody. The Court (sitting as a trier of fact) placed the parties on notice that it had little familiarity with Facebook and its mechanics. Tr. 3/22/13, at 15. More specifically, after reviewing the Facebook printouts the Court stated that it “should forewarn counsel, I don’t keep a Facebook page, so please feel free to explain the significance of different Facebook issues as we get to them because I will not necessarily appreciate them.”8 Id. Throughout her testimony, Ms. Brody used terms, concepts and jargon particular to Facebook, including notions such as “tagging,”9 being “friended,”10 going on Facebook through a friend’s page, and acknowledging

                                                                                                                       
7

Throughout the trial, the State attempted to link up the results of the ex-parte order executed on Facebook with the results of the ex-parte order executed on Cablevision. However, Defense counsel objected on hearsay grounds and the state withdrew its line of questioning. No link was established. See Tr. 3/22/13, at 87-88. 8  Moreover, the court could not even determine whose Facebook page was depicted on the Exhibit because it was “not familiar with Facebook” and had to inquire of Ms. Brody about this. Tr. 3/22/13, at 15.       9 See Tr. 3/22/13, at 16. 10 See Tr. 3/22/13, at 18.
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differing privacy settings.11 When “privacy settings” were brought up in Ms. Brody’s testimony, the Court announced that it did not “understand” what was being asked of the witness. Tr. 3/22/13, at 21-22. At other points in her testimony, the Court admonished Ms. Brody not to “assume” but to answer questions about Facebook issues only if she knew the answers: THE COURT: Okay. Do you know when you saw the page that was Tasha Moore’s, do you know what the privacy setting was at the time you viewed it THE WITNESS: I can only assume that it was . . . THE Court: I am not asking you to assume, I’m asking you if you know. If there is a way to tell what someone’s Facebook . . . THE WITNESS: Yes. THE Court: . . . privacy is THE WITNESS: It seemed to be public because I could see it from my own and I was not friends with her. THE Court: Okay. THE WITNESS: And I could see the same content from my friend’s who was friends with her. Tr.3/22/13,at 37. The dialog clearly reflected an unfamiliar Court attempting to determine the nature and function of Facebook privacy settings, limited to Ms. Brody’s “impressions” alone. Accordingly, the only evidence before the Court regarding the functioning and features of Facebook, including “privacy settings,” was the unqualified opinion testimony of Ms. Brody. Ironically, even the State agreed that Ms. Brody was not qualified to explain how Facebook worked; the position was clarified in an objection during defense Counsel’s Facebook cross examination, where the state argued Ms. Brody “can’t testify to Facebook’s policies” or “to how all of Facebook itself works.” Tr.

                                                                                                                       
11

The court further exhibited its uncertainty about the subject matter and terminology during closing arguments. See Tr. 3/22/13, at 112 (“If we were to put aside a connection between the Facebook posting -- if I’m using my terminology correctly.”)
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3/22/13, at 22. Ms. Brody also testified about the content of the Facebook postings and how these postings made her feel. Mr. Brody testified about receiving the mail, and what it contained. He also testified about his reaction to the contents, and subsequent conversations with the Defendant. He did not see the actual Facebook postings on his own, and his receipt of the information began when he learned of the contents of the posting from his daughter prior to him accompanying her back to the police station. At Trial, absent a Facebook witness, the State was unable to link up the results of two ex-parte orders executed by Sergeant Ogrinc. The Cablevision representative was able to authenticate the documents obtained from cablevision that indicated that the Defendant had an IP address that was associated with her Cablevision account. Tr. 3/22/13, at 5. On the other hand there was no evidence before the Court as to what exactly was obtained from Facebook.12 Essentially, the Court had no evidence before it, establishing any link between an IP address associated with the Defendant, and a “Tasha Moore” Facebook account.“ Defense counsel moved for a judgment of acquittal, arguing that the State failed to prove the elements of all three offenses. Tr. 3/22/13, at 91. The Court denied the Defendant’s motion; thereafter, the defense rested without putting on evidence. Tr. 3/22/13, at 99-100.

                                                                                                                       
12

In fact, during closing arguments, the Court indicated that there was a serious problem with connecting the Defendant’s IP address to Ms. Moore, and that the connection was at best “bumpy.” Tr. 3/22/13, at 105. Moreover, during arguments on post verdict motions the Court expressly affirmed that “[t]here was no evidence that directly linked Ms. Buhl to the –- the initial Facebook page.” Tr. 4/4/13, at 8.
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In closing, the State relied on the content of the letters, the Facebook postings, Ms. Brody’s feelings of embarrassment, and Mr. Brody’s feelings of “shock,” in support of a guilty verdict on the harassment and breach of peace charges. Tr. 3/22/13, at 10102. The State claimed Facebook was a public place because, after all, Ms. Brody testified “that a friend had it, and then for all we know here in this proceeding, is at least eight other people saw or knew of that information.” Tr. 3/22/13, at 104. Further, that the Defendant’s refusal to identify her journalistic source, was “nothing more than a journalist trying to hide behind the fact of I have sources, I’m writing an article.” Tr. 3/22/13, at 107. Notably, during defense Counsel’s closing, the Court confronted defense Counsel with the following question: “What other evidence is there to suggest anyone else other than Ms. Buhl had access to those [diary] pages at the time [of] the . . . posting was which is five p.m.” Tr. 3/22/13, at 113. After closing arguments the Court found the Defendant guilty of Harassment and Breach of Peace, and acquitted her on the Interfering charge. Tr. 3/22/13, at 138. After the verdict the Defendant filed a Motion to Set Aside and a Motion for a New Trial, which were heard by the Court on April 4, 2013. The same were denied. Tr. 4/4/13, at 59. ARGUMENT ISSUE 1: The Trial Court erred in finding the Defendant guilty of Harassment in violation C.G.S.§ 53a-183(a)(2) where the evidence at trial was not sufficient for finding of guilt beyond a reasonable doubt without the trier of fact shifting the burden of proof on the Defendant and/or impermissibly impinging on her constitutional rights. a. Standard of Review

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When addressing claims of insufficiency of evidence to sustain a conviction on appeal, the Court first “review[s] the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury… [and] then decide[s] whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.” State v. Drupals, 306 Conn. 149, 157-58 (2012). However, “in cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” DiMartino v. Richens, 263 Conn. 639, 662 (2003) citing New York Times Co. v. Sullivan, 376 U.S. 254, 284– 86 (1964); see also, State v. DeLoreto, 265 Conn. 145, 152-53 (2003). Furthermore, “[w]hen a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” State v. Kelly, 129 Conn.App. 109, 126 (2011). b. Law and Argument “It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. The [reasonable doubt concept] provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” State v. Jackson, 283 Conn. 111, 116 (2007) citing In re Winship, 397 U.S. 358, 363-64 (1970). When dealing with sufficiency of evidence in a criminal case, our Courts have

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repeatedly held that “[t]o warrant a judgment of guilty, the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt, and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail.” State v. Guilfoyle, 145 A. 761, 767 (Conn. 1929); see also, State v. Foord, 142 Conn. 285, 294 (1955) (stating that “any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail.”). Along with the elements of an offense, the State must also prove the identity of the offender, as this too is the subject matter for the trier of fact to resolve. See State v. Marsala, 43 Conn.App. 527, 531 (1996). Pursuant to C.G.S. §53a-183(a)(2), “[a] person is guilty of harassment in the second degree when … with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm.” Unlike the crime of Breach of Peace, Harassment is not a threatening language crime; rather, it is predicated upon conduct. See State v. Moulton, 120 Conn. .App. 330, 345 (2010). Notably, where the Defendant is prosecuted on the basis of the content of her communication, the Defendant’s First Amendment rights are implicated, and the statute may become “unconstitutional as applied to the defendant.” Id., at 337; see also, State v. LaFontaine, 128 Conn.App. 546, 555-56 (2011). More specifically, “General Statutes § 53a-183 (a)(2) prohibits communications by mail that are made ‘with intent to harass, annoy or alarm’ and ‘in a manner likely to cause annoyance or alarm . . ..’ Thus, § 53a-183 (a)(2) proscribes harassing conduct

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via mail and does “not seek to regulate the content of communications made by mail.” See State v. Murphy, 254 Conn. 561, 568 (2000) citing State v. Snyder, 49 Conn. App. 617, 625 (1998) (emphasis added). Accordingly, the two possible incidents of harassment in this case are the Facebook posting itself, and the mailing of the anonymous letter to Mr. Brody. Analyzing the possibilities against the backdrop of our current precedent, the Defendant could not be convicted by the Trial Court without encroaching upon the Defendant’s Constitutionally protected free speech rights which, would shield the very content used by the Court to support its convictions in the case at bar. i. Facebook Postings

The Facebook postings could only ever constitute harassment of Ms. Brody, since they were never seen by Mr. Brody. He did not have a Facebook account, nor did he testify about ever using Facebook. There was no evidence to show that the postings were made with intent to communicate with him, or “in a manner likely to cause annoyance or alarm” to him. He was not “friended” or otherwise exposed to the posting. Evidence revealed that “Tasha Moore” made the postings. Some of the comments were made by “tagging” a picture of a person, who was not even Ms. Brody. Ms. Brody did not know who “Tasha Moore” was, and she was not aware of the postings until a friend told her about them. In fact, her initial viewing of these postings was via her friend’s Facebook profile, and not her own. The “Tasha Moore” Facebook postings are tantamount to a rant made into the uncharted space of the internet, with no evidence sustaining the claim that they were calculated to reach or affect Ms. Brody.

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Moreover, Ms. Brody testified that she understood Facebook profiles have different privacy settings that restrict who can view the comments on a given Facebook page. She confirmed she viewed the postings via somebody that was “friended” with “Tasha Moore.” This testimony raised an important Trial question: namely, whether the postings were restricted, and as such, not calculated or intended to reach Ms. Brody and cause her annoyance or alarm. The Court was clearly unfamiliar and unable to appreciate “Facebook issues.” The only guidance it could purport to rely upon, completely ignoring its own distinction in acknowledging the need for an expert/representative, was the guidance of Ms. Brody. And the same was clearly limited to Ms. Brody’s “impressions,” or what she “thought,” “guessed,” or “understood,” regarding the inner workings of Facebook and/or Facebook privacy settings. Notably, her subjective opinions or “understandings” of Facebook was of no evidentiary value. A “witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.” Connecticut Code of Evidence, §7-1. In this case Ms. Brody’s and her own views of how Facebook worked should not have been considered admissible and/or reliable evidence used to convict the Defendant. Likewise, her thoughts on the subject matter were irrelevant since it is the intent of the poster the Trial Court needed to focus on, in order to decide how such a posting may or may not have been “calculated” to harass. Problems with Facebook evidence unaccompanied by “expert” opinion or explanation have been recognized by our Courts in the very recent past. For example, authentification of Facebook evidence raises a host of evidentiary concerns, difficulties

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and issues. See State v. Eleck, 130 Conn.App. 632, 638-39 (2011). As the Eleck Court noted: “[t]he need for authentication arises in this context because an electronic communication, such as a Facebook message… could be generated by someone other than the named sender… proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship.” Id. Similarly, our Supreme Court recognized that “[d]ue to the dynamic nature of Facebook and other such social network sites, these details, as well as basic structural features of the social network, are subject to frequent modification. Care should therefore be taken to assess information relating to social network sites on a case-bycase basis, with due attention to the nature of the site at the time relevant to the case.” State v. Altajir, 303 Conn. 304, 307 (2012). Simply put, the Trial Court pronounced the Defendant guilty in a case where Facebook postings were a central focus of the case, based on testimony that it admitted through a completely unqualified witness. Nothing rooted in her testimony would permit this Court finding the requisite intent to “harass, annoy or alarm” her. Furthermore, the State failed to link up the “Tasha Moore” Facebook page to the Defendant., and the Court acknowledged as much stating that “[t]here was no evidence that directly linked Ms. Buhl to the –- the initial Facebook page.” Tr. 4/4/13, at 8. Nonetheless, the Trial Court seems to have circumvented the link issue, by drawing an inference from the fact that the Defendant had sent copies of diary entries to Mr. Brody, at or around the same time they were posted on Facebook. Clearly, the Court did not draw this inference in a vacuum. During closing arguments, the Court’s inquiry of

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Defense counsel is telling. “What other evidence is there to suggest anyone else other than Ms. Buhl had access to those [diary] pages at the time the post book posting was paged which is five p.m.” Tr. 3/22/13, at 113. This question suggests that the trier of fact was about to (or already did) at that point, draw an inference from the circumstantial evidence, unless the Defendant could have produced evidence to the contrary. This type of questioning on the record is hardly an idle string of words. As our Supreme Court cautioned, “[a] judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial.” State v. Gionfriddo, 154 Conn. 90, 97 (1966). The question and its implications indicate that the Court had impermissibly shifted the burden to the Defendant to prove who in fact posted on Facebook, lest they suffer the inference that it must have been her. This “shifting” is not dissimilar to a Court's jury instructions concerning circumstantial evidence, and inferences to be drawn therefrom, which “permitted the jury to infer [defendant’s] intent to communicate a threat by only a preponderance of the evidence.” State v. Dullivan, 10 Conn.App. 474, 478 (1987). Moreover, “where ... the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court's instructions may be read as a whole to determine whether it is reasonably possible that the [trier of fact] was misled by an erroneous explanation regarding the use of circumstantial evidence.” State v. Whelan, 200 Conn. 743, 757 (1986) citing State v. Farrar, 7 Conn.App. 149, 155-56 (1986). In the case at bar the Court articulated how it was using circumstantial evidence to conclude, beyond a reasonable doubt, that it was the Defendant who was responsible

17    

for the Facebook posting. Unless the Defendant could show otherwise, her sending diary pages, ipso facto, were enough to establish that she was actually “Tasha Moore.” At the very least, the record reveals that it is “reasonably possible” that this is what in fact happened. See Whelan, at 757. This “burden shifting” violated the Defendant’s rights under the due process clause of the Fourteenth Amendment which protects an “accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Little, 194 Conn. 665, 676 (1984), citing In re Winship, 397 U.S. 358, 364 (1970). Furthermore, this “burden shifting” implicated other constitutionally protected rights attendant upon the Defendant’s status as a journalist. The evidence revealed that the Defendant would not give up her source.13 Consistently, she refused to tell Mr. Brody, and Officer Gulino. Moreover, she would not, and did not, reveal her source in her own defense at Trial. Simply put, she encountered the dilemma of facing a possible conviction, or abandoning her professional responsibility to her source, in order to defend herself. This dilemma the Defendant’s First Amendment rights. The United States Supreme Court long ago recognized that journalistic privilege falls within the ambit of the First Amendment’s protection. See New York Times Co. v. Jascalevich, 439 U.S. 1331, 1134-35 (1978) (“disclosure even for in camera review will inhibit the reporter's and newspaper's exercise of First Amendment rights.”). Federal courts in Second Circuit have articulated this protection further. See e.g., Baker v. F and F Inv., 470 F.2d 778, 783 (2d Cir. 1972) (“though a journalist's right to protect confidential sources may not take precedence over that rare overriding and compelling
                                                                                                                       
13

The Defendant was in the middle of doing an investigative report on underage drinking in New Canaan.
18    

interest, we are of the view that there are circumstances, at the very least in civil cases, in which the public interest in non-disclosure of a journalist's confidential sources outweighs the public and private interest in compelled testimony.”); see also,  Von Bulow by Auersperg v. Von Bulow, 811 F.2d 136, 142 (2d Cir. 1987) (“the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist's privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public.”) By pressuring and shifting the burden of proving she was not “Tasha Moore,” the Trial Court further imposed upon the journalistic privilege by requiring the Defendant to disclose, or face the inference that she (1) took the pages and (2) posted them.14 Finally, the evidence at Trial did little to support a Harassment conviction via the ipso facto posting on Facebook; the real issue pertains to conduct and not content. An internet post is not akin to a phone call in the middle of the night, or a message painted on the side of a victim’s home, or a string of disparagements shouted from a megaphone. It is an ordinary and simple act of using Facebook, in which all Facebook users partake. Moreover, as discussed supra, there was no competent evidence that would indicate that Tasha Moore’s use of Facebook, ipso facto, could be seen as a harassing act, let alone one undertaken by the Defendant. At Trial, the actual methods
                                                                                                                       
14

It should also be noted that First Amendment protections equally do not tolerate restrictions on protected activity as well as compulsions. See e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977) (holding “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”); see also, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (stating that a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized was unconstitutional).
19    

of communication were left unexplored. On the other hand, the State’s theory (as exhibited by the evidence it led, and its arguments to the Court) was that the content of Facebook communications was so shocking and/or annoying that posting it constituted Harassment in the Second Degree. The State spent a great deal of time eliciting testimony from Ms. Brody, detailing how she “felt” about the postings. As the State stated in its argument on the record, it is the “communications” in the “emails” that were intended to “annoy or alarm” Ms. Brody. See e.g., Tr. 3/22/13, at 101-02. To the extent the defendant was prosecuted and convicted on the content of the communications, the Defendant’s First Amendment rights were contravened. See Moulton, supra at 337. ii. Anonymous Letter

The anonymous mailing to Mr. Brody took place after Ms. Brody went to the police the first time, and more specifically, after the Defendant detailed the postings to Mr. and Mrs. Brody. This fact is uncontroverted. Accordingly, Mr. Brody knew of he Facebook postings well before he ever received the anonymous package, or attended the Police station with his daughter the second time she appeared. The copies of her diary entries could hardly have surprised him solely the second time he learned of them. A perfectly reasonable inference, consistent with the Defendant’s innocence, would be that Mr. Brody experienced his “shock” initially upon learning the details of the posting from his daughter Furthermore, nothing by way of testimony or other evidence at Trial indicated that the mailing was done with intent to harass Mr. Brody, when the copies were mailed after the initial “shock” of their disclosure on Facebook. Mailing of items already familiar to Mr. Brody, is consistent with attempts by the sender to warn and inform Mr. Brody of

20    

potentially dangerous conduct engaged in by his daughter. Notably, the materials he was already exposed to were complimented by an explanatory note. A reasonable inference to be drawn by the inclusion of the note is that the sender wished to inform Mr. Brody that a “frined” or “friend of a friend” of had concerns about his daughter’s well being. As Mr. Brody indicated, when he was able to understand that the mailing came from a “friendly” party, he assumed he would be “getting somewhere.” The Defendant used regular mail to provide Mr. Brody with the materials she obtained from her source. Balancing her obligation to the source, with her desire to alleviate Mr. Brody’s concerns, the Defendant decided to disclose the source of the mailing, but not the source of the materials. Effectively, she did as much as she could in light of her professional obligations as a journalist to her source. She had no motive to harass her boyfriend, with whom she shared a relationship of trust and affection, one which was by all evidentiary accounts wholly non-tumultuous. See generally, Tr, at 43 (relationship was good, she had access to his home, she resided with him); .Tr. 3/22/13 at 52 (relationship was good, he trusted her), Tr. 3/22/13 at 58 (no outbursts of hostility, he helped pay for her apartment, helped her with living expenses, and relationship was good all the way up the incident), and Tr. 3/22/13 at 58 (on redirect by the State, the relationship was harmonious, open line of communication, no reason to believe she wouldn’t be open with him). Ultimately, the evidence suggested that there were no problems in the relationship prior to the Defendant’s failure to disclose her source—this harmony, along with Mr. Brody’s emotional and financial support, is not something that can be reasonably reconciled with any destructive motive. In short, there is no evidence of a

21    

motive that would justify any intent to harass or annoy, whatsoever. By all accounts, the Defendant had an obvious interest in preserving her relationship with Mr. Brody, not harassing or annoying him, and jeopardizing all they had between them. Noteworthy also is the fact that the letter mailed, was not addressed to Ms. Brody, and she never saw it. It was sent well after she knew the alleged diary entries were posted on Facebook. Thus, there is absolutely no evidence to substantiate the claim that the mailing was intended for Ms. Brody, and that it was sent to Mr. Brody to harass her. The State’s case suffers the same deficiency with respect to the mailing, as it does with respect to the posting and Ms. Brody. The State limited its focus to the contents of the mailing, not the method. The State elicited testimony from Mr. Brody about how the items in the mail made him “feel,” but not how the actual mailing itself made him “feel.” According to the State, because Mr. Brody received an anonymous letter “stating that his daughter is drinking and giving blowjobs,” and that the content of such a letter “would alarm any father and in this case, it did alarm him enough to go to the police department,” the Court could convict the Defendant on the Harassment charge. Tr. 3/22/13, at 96 This argument, is fundamentally flawed, and ignores the

the fact that the “content” approach violates the Defendant-Appellant’s Constitutionally protected rights to free speech, pursuant to the First Amendment. Conviction on this basis has been recognized as such. See Moulton, surpa at 337, and accompanying argument.

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ISSUE 2: The Trial Court erred in finding the Defendant guilty of violating C.G.S.§ 53a-181(a)(4) when the evidence at trial was not sufficient for finding of guilt beyond a reasonable doubt without the trier of fact shifting the burden of proof on the Defendant and/or impermissibly impinging on her constitutional rights. a. Standard of Review When addressing claims of insufficiency of evidence to sustain a conviction on appeal, the Court first “review[s] the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury… [and] then decide[s] whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.” Drupals, at 157-58. However, “in cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” DiMartino, at 662, citing New York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964); see also, DeLoreto, at 152-53. Furthermore, “[w]hen a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” Kelly, at 126. b. Law and Argument “It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. The [reasonable doubt concept] provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” Jackson, at 116, citing In re Winship, 397 U.S. 358, 363-64 (1970). When dealing with sufficiency of
23    

evidence in a criminal case, our Courts have repeatedly held that “[t]o warrant a judgment of guilty, the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt, and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail.” Guilfoyle, at 767 (Conn. 1929); see also, Foord, at 294 (1955) (“any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail.”). Along with the elements of an offense, the State must also prove the identity of the offender, as this too is the subject matter for the trier of fact to resolve. See Marsala, at 531. Pursuant to C.G.S. § 53a-181(a)(4), “[a] person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person … publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person.” The United States Supreme Court addressed the issue of conduct permissibly punishable by a statute such as Connecticut’s Breach of Peace statute, stating “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.”

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Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940). Thus, words or communications punishable under C.G.S.§ 53a-181, must be of the kind that do not merely “offend” someone, but must give rise to an “immediate threat to public safety, peace, or order” not to run afoul of the First Amendment. Our Supreme Court has addressed this issue by putting an “interpretive gloss” on the mens rea language of the statute. See State v. Wolff, 237 Conn. 633, 669-670 (1996). Specifically, the trier of fact must determine, beyond reasonable doubt that the defendant’s “predominant intent is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” Id., at 670. Here, the only potential instance of public exhibition, distribution, posting or advertising of “any offensive, indecent or abusive matter concerning any person” was the Facebook page of Ms. Moore. It could not be argued (and the State did not argue) that the private, anonymous letter to Mr. Brody, was a “public” posting. Thus, the relevant inquiry is whether or not the evidence at Trial established that the Facebook posts were made by the Defendant and, if so, whether they are a violation of C.G.S. § 53a-181(a)(4). As discussed in detail supra,15 the evidence at Trial established that “Tasha Moore” did the posting on Facebook. Ms. Brody did not know who Tasha Moore was, and she was not aware of the postings until a friend told her about these postings. Ms. Brody’s initial viewing of these postings was through the use of her friend’s Facebook
                                                                                                                       
15

See ISSUE 1(b)(i).  
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profile and not her own. According to Ms. Brody’s testimony, Facebook profiles can have different privacy settings that restrict who can and can’t view the comments on them. Ms. Brody was never qualified to speak on the subject matter of Facebook intricacies and the State did not supply another witness to explain the inner workings of Facebook. The need for an “expert” or at least “qualified” testimony, is expounded in recent Connecticut cases, where the Court must grapple with the complexities of social media. See Eleck, supra at 638-39; see also, Altajir, supra at 307. Specifically with respect to Breach of Peace, the State was required to prove “beyond a reasonable doubt,” the element of publicity. Thus, proof that the Facebook posts were made publicly, and not privately. Ms. Brody’s testimony indicates that she did not just stumble on these posts while surfing the web, but that she was directed to them by a friend who was “friended” with “Tasha Moore.” Essentially, the postings were accessible to those invited by a “private party” to view. The postings were not made part of an internet street fair, where anyone could simply attend and participate without invitation. As for establishing the essential element of publicity, the Court could only rely upon the testimony of Megan Brody, a witness who was neither qualified nor consistent on the subject matter of private/public settings in a Facebook universe. She could not explain to the trier of fact how pages on Facebook operate in terms of privacy, leaving the Court without necessary guidance, which was a catalyst for determining whether the communications were public or private. Similarly, lack of objective explanation of how Facebook works, denied the trier of fact guidance as to how it could determine whether the Facebook postings were made with the requisite intent to “cause inconvenience, annoyance or alarm” to Ms. Brody. There was no other

26    

evidence to suggest that the Defendant had any reason to cause her any inconvenience or alarm. Furthermore, with respect to the Facebook postings, the State was never able to directly link Ms. Moore’s Facebook page to the Defendant. The Trial Court acknowledged as much. See Tr. 4/4/13, at 8. The Trial Court seems to have circumvented this lack of connection by drawing an inference from the fact that the Defendant had sent copies of diary entries to Mr. Brody at or around the same time as they were posted on Facebook. During closing arguments, the Court asked defense counsel “What other evidence is there to suggest anyone else other than Ms. Buhl had access to those [diary] pages at the time the post book posting was paged which is five p.m.” Tr. 3/22/13, at 113. This indicates that the trier of fact is drawing an inference from circumstantial evidence, unless the Defendant can put forth evidence to the contrary. The serious implication is that the court impermissibly shifted the burden of proof on the Defendant to show that she is not Tasha Moore. This “shifting” is comparable to the burden shifting jury instruction addressed in Dullivan. See Dullivan, at 478. In this case, unlike in Dullivan, the fact in question was the identity of the Facebook poster, “which is not classically dependent upon circumstantial evidence for its proof” and the trial court's inferences drawn from circumstantial should be scrutinized as to whether “it is reasonably possible” that it erroneously used such inferences. See Whelan, at 757. In the present case, it appears that the trier of fact bolstered circumstantial evidence by the fact that the Defendant did not prove the identity of the poster. At the very least, the record reveals that it is “reasonably possible” that this is what happened. Id. Consequently, this burden shifting violated the Defendant’s rights

27    

under the due process clause of the Fourteenth Amendment which protects an “accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Little, at 676, citing In re Winship, 397 U.S. 358, 364 (1970). Moreover, this “burden shifting” with respect to the identity of the Facebook poster, implicated this Defendant’s First Amendment rights and journalistic privilege. The Defendant repeatedly would not give up her source from whom she obtained diary pages with descriptions of underage drinking. She would not reveal the source to Mr. Brody or Officer Gulino. Similarly should would not or could not reveal her source to defend herself at trial. Thus, she encountered the dilemma of facing a possible conviction, or abandoning her professional responsibility in order to defend herself. This dilemma further implicates her rights under the First Amendment of the United States Constitution. The Defendant’s journalistic privilege falls within the ambit of the First Amendment’s protection. See Jascalevich, at 1134-35; see also, Baker, at 783; and also, Von Bulow, at 142. In the present case, by putting the burden on the Defendant to show that she was not Tasha Moore, the Court further imposed on the journalistic privilege (and the constitutional protections attached thereto), by requiring the Defendant to disclose the source of the diary pages, or face the inference that she took them and she posted them. Finally, at Trial, the State elicited testimony from the Brodys about the effect the Facebook posts and physical letters had on them. Ms. Brody testified that these made her “really upset.” Mr. Brody testified that he was “shocked and surprised” or “outraged.” Additional testimony from an investigating officer confirmed that Ms. Brody appeared

28    

shaken or upset when he spoke with her. There was no other testimony or evidence as to the effect these postings had on anyone else. The only evidence about actions that these postings inspired was Ms. Brody and Mr. Brody testifying that Ms. Moore was contacted (by Ms. Brody) and that both of them went to the police to report the incident. This evidence alone is insufficient for a breach of peace conviction. The law requires that there be some likelihood that the statements would produce violence in others, or acts of public disorder. See Cantwell, at 308. In discussing statutory language of a different subsection of the Breach of Peace statute, this Court pointed out that the statute proscribes “fighting words that tend to induce immediate violence by the person or persons to whom the words are uttered because of their raw effect.” State v. Caracoglia, 78 Conn.App. 98, 109-10 (2003).16 At the very least, there had to be some evidence to indicate that the Defendant’s “predominant intent” in making these statements was to cause “a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” Wolff, at 670. Mere alarm, annoyance and inconvenience are not enough. Id. There was no evidence that anyone was obstructed from doing anything, was provoked to do anything, or felt threatened in anticipation of some future harm. The Defendant’s (or Ms. Moore’s) situation in this case is similar to that of a minister who painted slogans on his property (in public view), which accused the Jews of murdering Jesus Christ. See State v. Hoskins, 35
                                                                                                                       
16

 The Court in Caracoglia addressed the language of C.G.S. §53a-181(a)(5) (“in a public place, uses abusive or obscene language or makes an obscene gesture.”) which proscribes almost the same kind of expression as C.G.S. §53a-181(a)(4) (“publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person”)    

29    

Conn.Supp. 587 (1978). In that case, the Court held that the evidence would not “support a conclusion that the expression used was intended or likely to produce imminent disorder” and that “the breach of the peace conviction cannot stand.” Id., at 594. The statements in this case similarly did not cause or were not intended to produce any imminent disorder. More importantly, the record reveals that the Court, as a trier of fact, applied the wrong standard in arriving at this conviction. The Court only required proof of “intent to cause inconvenience, annoyance or alarm” to convict the Defendant on the charge of breach of the peace. See Tr. 3/22/13, at 130. It did not apply the constitutionally required “interpretive gloss” of intent “to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” Wolff, at 670. Thus, this conviction in its entirety remains contrary to the law, and violated the Defendant’s First Amendment rights. ISSUE 3: The Trial Court erred in denying the Defendant’s Motion to Set Aside Verdict and Enter a Judgment of Acquittal  when the evidence at trial was not sufficient for finding of guilt beyond a reasonable doubt without the trier of fact shifting the burden of proof on the Defendant and/or impermissibly impinging on her constitutional rights. a. Standard of Review On appeal from a denial of a motion to set aside the verdict, this Court must   determine  whether the trial court abused its legal discretion in denying the motion. State v. McGinnis, 158 Conn. 124, 128-29 (1969). In determining whether the Trial Court abused its legal discretion, this Court “decide[s] only whether the evidence was
30    

sufficient to justify a finding by the [trier of fact] that the defendants were guilty beyond a reasonable doubt.” Id., at 129. Stated differently, “[t]he inquiry of this court is directed to whether, on the facts established and the inferences reasonably to be drawn therefrom, the verdict can be supported.” State v. Avcollie,  178 Conn. 450, 470 (1979). However, “in cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” DiMartino, at 662, citing New York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964); see also, DeLoreto, at 152-53. Furthermore, “[w]hen a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” Kelly, at 126. b. Law and Argument Under Connecticut state law, if a trier of fact returns a “verdict of guilty, the judicial authority, upon motion of the Defendant or upon its own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict … for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt.” P.B. §42-51. Moreover, the Court has an inherent, common law power to set aside a verdict. See Bartholomew v. Clark, 1 Conn. 472, 480 (1816); see also, State v. Avcollie, 178 Conn. 450, 455 (1979) (“the trial Court’s power to set aside a verdict is inherent”). Under this principle, a Trial Court always has “the power to set aside a verdict that, in its opinion, is contrary to either the law or the evidence.” State v. Weiner, 61 Conn.App. 738, 743 (2001). This power comes with an equal degree of responsibility, and a Trial

31    

Court should set aside the verdict where “the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the [trier of fact] in the application of legal principles.” State v. McCarthy, 105 Conn.App. 596, 601 (2008). In the end, the verdict must be set aside if the evidence was insufficient to justify a finding of guilty beyond a reasonable doubt. See State v. Hicks, 169 Conn. 581(1975). After the verdict, the Defendant’s filed her Motion to Set Aside the Verdict and Enter a Judgment of Acquittal. In said Motion the Defendant argued the same points of law and fact as more fully set forth in Point 1 and Point 2, supra. As more fully set forth in these sections, the evidence at Trial did not reasonably permit a finding of guilty beyond a reasonable doubt. Additionally, based on the constitutional violations with respect to burden shifting, Defendant’s protected journalistic activity, and unconstitutional application of the harassment and breach of peace statutes, to the facts of this case, the verdict was and remains contrary to law, and should have been set aside. See Weiner, at 743. In denying the Defendant’s Motion, the trial court erred as to the sufficiency of the evidence to convict as well as to the constitutionality of her conviction. On the facts established at this Trial and the inferences reasonably to be drawn therefrom (excluding impermissible inferences that would violate the Defendant’s due process rights) the verdict as it stands now cannot be supported. See Avcollie, at 470. Moreover, because the verdict implicates the Defendant’s First Amendment rights in more than one way, this Court should “make an independent examination of the whole record” and find that the judgment does “constitute[s] a forbidden intrusion on the field of free expression’” DiMartino, at 662. Finally, since the record indicates that the Trial Court, as a trier of fact, shifted the burden of proof on the Defendant with respect

32    

to the identity of the Facebook poster, this Court should review this erroneous standard of proof de novo. See Kelly, at 126. ISSUE 4: The Trial Court erred in denying the Defendant’s Motion for a New Trial when the evidence at trial was not sufficient for finding of guilt beyond a reasonable doubt without the trier of fact shifting the burden of proof on the Defendant and/or impermissibly impinging on her constitutional rights. a. Standard of Review On appeal, this Court reviews the trial court's denial of the post-verdict motion for a new trial to determine if the court abused its discretion. State v. Edwards, 247 Conn. 318, 326 (1998). In determining whether the trial court abused its legal discretion, this Court “decide[s] only whether the evidence was sufficient to justify a finding by the [trier of fact] that the defendants were guilty beyond a reasonable doubt.” McGinnis, at 129. However, “in cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” DiMartino, at 662, citing New York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964); see also, DeLoreto, at 152-53. Furthermore, “[w]hen a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” Kelly, at 126. b. Law and Argument Under Connecticut state law, the “judicial authority may grant a new trial if it is required in the interests of justice.” P.B. § 42-53(a). Furthermore, the judicial authority “shall grant the motion: (1) For an error by reason of which the defendant is

33    

constitutionally entitled to a new trial; or (2) For any other error which the defendant can establish was materially injurious to him or her.” Id. Thus, “[a] meritorious claim that a verdict is against the evidence may constitute reasonable cause for the grant of a new trial.” State v. Luzietti, 230 Conn. 427, 435 (1994). After the verdict, the Defendant’s filed her Motion for a New Trial, wherein she incorporated by reference the facts, law and arguments contained in her Motion to Set Aside the Verdict and Enter a Judgment of Acquittal. In said Motion the Defendant argued the same points of law and fact as more fully set forth in Point 1 and Point 2, supra. As more fully set forth in these sections, the evidence at trial did not reasonably permit a finding of guilty beyond a reasonable doubt and consequently the verdict was against the evidence. See Luzietti, at 435. Additionally, the constitutional violations with respect to burden shifting, Defendant’s protected journalistic activity, and unconstitutional application of the harassment and breach of peace statutes to the facts of this case were errors “by reason of which the defendant is constitutionally entitled to a new trial.” See P.B. § 42-53(a). Similarly, these errors were materially injurious to her, as described supra, and in their totality required a new trial in the interests of justice. Id. In denying the Defendant’s Motion, the Trial Court abused its discretion. See Edwards, at 326. On the facts established at this Trial and the inferences reasonably to be drawn therefrom (excluding impermissible inferences that would violate the Defendant’s due process rights) the evidence was not :sufficient to justify a finding by the [trier of fact] that the defendant [was] guilty beyond a reasonable doubt.” McGinnis, at 129. Moreover, because the verdict implicates the Defendant’s First Amendment

34    

rights in more than one way, this Court should “make an independent examination of the whole record” and find that the judgment does “constitute[s] a forbidden intrusion on the field of free expression’” DiMartino, at 662. Finally, since the record indicates that the Trial Court, as a trier of fact, shifted the burden of proof on the Defendant with respect to the identity of the Facebook poster, this Court should review this erroneous standard of proof de novo. See Kelly, at 126. CONCLUSION Based on the facts, applicable law and the arguments set forth in this Brief, this honorable court should find that (1) the evidence was not sufficient to convict the Defendant of Harassment in the Second Degree and Breach of Peace, (2) the Trial Court impermissibly shifted the burden of proof as to the identity of the Facebook poster to the Defendant, thereby violating her First and Fourteenth Amendment rights, (3) Defendant’s conviction is a result of unconstitutional application of the Harassment and Breach of Peace statutes, (4) the Trial Court erred in denying the Defendant’s postverdict motions. Consequently, this Court should reverse the Defendant’s convictions and/or remand the matter for a new trial. Respectfully submitted, THE DEFENDANT-APPELLANT By _____________________ Stephan E. Seeger Juris No. 415349 810 Bedford Street, Suite #3 Stamford, CT 06901 Tel: (203)273-5170 Fax: (203) 357-0608 Seegerkid2@aol.com

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CERTIFICATION PURSUANT TO PRACTICE BOOK § 62-7 The undersigned certifies that a copy of the foregoing Brief has been served on all other counsel of record, as well as the trial judge, by first class mail postage pre-paid, at the following addresses: Trial Counsel Francis DiScala, Jr., Esq. 11 North Main Street South Norwalk, CT 06854 Tel: (203) 853-4477 Donna Krisinski, Esq. Office of the State’s Attorney 17 Belden Ave Norwalk, CT 06850 Appellate Counsel Office of the Chief State’s Attorney Appellate Bureau 300 Corporate Place Rocky Hill, CT 06067 Trial Judge Hon. Wenzel, J. Superior Court Judge 17 Belden Ave Norwalk, CT 06850 ____________________________ Stephan E. Seeger

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CERTIFICATION OF COMPLIANCE The undersigned certifies that the foregoing Brief complies in all material respects with the provisions of Connecticut Practice Book §§ 67-2, 67-3 and 67-4.

____________________________ Stephan E. Seeger

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