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S20N-CR10-0127478S : SUPERIOR Court:STATE OF CONNECTICUT : JUDICIAL DISTRICT OF: STAMFORD/ NORWALK:V. : G.A. #20 NORWALK:TERI BUHL : APRIL 1, 2013

MOTION TO SET ASIDE VERDICT AND ENTER A JUDGMENT OF ACQUITTAL

The Defendant,

TERI BUHL

, pursuant to P.B. § 42-51, the First, Fifth, Sixth andFourteenth Amendments to the United States Constitution, Article First Section 4, 8 and9 of the Connecticut Constitution, and State v. Avcollie,178 Conn. 450, 455 (1979),respectfully moves this honorable Court to set aside the verdict in the above captionedmatter and enter a judgment of acquittal on all remaining counts. The Defendant relieson the following facts and applicable law in support of her Motion.

I.Facts

a.Procedural History

The Defendant in the above captioned matter was charged with Harassment inthe 2

nd

Degree in violation of C.G.S.§



53a-183, Breach of the Peace in the 2

nd

Degree inviolation of C.G.S.§



53a-181 and Interfering With an Officer in violation of C.G.S. §53a-167a. She pled “not guilty” and elected a Bench Trial. She was tried on March 22,2013. When the Prosecution rested, Defense Counsel moved for judgment of acquittalon all counts, and said motion was denied by the Court. See Transcript of State v. TeriBuhl, March 22, 2013, at 99 (hereinafter referred to as Tr. followed by the pagenumber(s)). Defense Counsel thereafter indicated that the Defendant would not beintroducing evidence, and that she would not be testifying. The Court found the

Defendant not guilty of Interfering With an Officer, but did find her guilty of Harassmentin the 2nd Degree, and Breach of Peace in the 2nd Degree. Tr. at 137. Bond wasincreased by the Court upon being informed that the Defendant was not ready toproceed to Sentencing at that time, and Sentencing was set for March 25, 2013.Counsel appeared as scheduled, and new Counsel Stephan Seeger entered anadditional appearance. New Counsel requested a further continuance in order toprepare post verdict motions. The Court granted said continuance, and this Motion toSet Aside, along with a Motion for New Trial were filed by April 1, 2013, pursuant to theCourt’s scheduling order.

b.Trial Backdrop: Limitations on Admi ssibility of Facebook Evidence

During Ms. Brody’s testimony, she referred to various Facebook functions andfeatures, including “tagging,” privacy settings, Member page access restrictions,“comments,” and picture viewing. Notably, the Court placed the parties on notice that ithad little familiarity with Facebook and its mechanics,

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When “privacy settings” werebrought up in Ms. Brody’s testimony, the Court (as a trier of fact) made it known that itdid not “understand” what was being asked of the witness. Tr. at 21-22. Despite this

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

,Statev.Dullivan,citedhere,n.9(dis8nguishinginferencefromstronginference).

warning, the State chose not to put forth a Facebook representative, or any other expert, to establish requisite foundation and/or otherwise authenticate any Facebookevidence it sought to introduce. Thus, the only record evidence addressing thecomplexities of Facebook, emanated from Ms. Brody’s lay testimony, which sheconfirmed was “her perspective.” Tr. at 21. The Court reiterated its position elsewherein Ms. Brody’s testimony, clarifying State’s Exhibit 3, stating: “[so let me just make sureI understand because like I said, I’m not familiar with Facebook. State’s Exhibit 3 is adepiction or a copy of someone else’s Facebook page?” Tr. at 14. When the Witnessanswered in the affirmative, the Court inquired further, limiting its question to theWitness’s personal knowledge, asking: “to make sure I appreciate it, what’s your understanding as to whose Facebook page is being shown in State’s 3?” Tr. 14-15. Towhich the Witness replied “Tasha Moore’s Facebook.” Id..At other points in her testimony, the Court admonished Ms. Brody not to“assume” but to answer questions about Facebook issues

if she knows

the answers:THE Court: Okay. Do you know when you saw the page that was TashaMoore’s, do you know what the privacy setting was at the time you viewed itTHE 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 isTHE WITNESS: It seemed to be public because I could see it from myown and I was not friends with her.

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