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ARGUMENT

The State argues that trial evidence was sufficient to convict the Defendant of Harassment in Second Degree and of Breach of the Peace in Second Degree. Further, that said convictions were not obtained in violation of the First Amendment of the United States Constitution, and that the Trial Court did not impermissibly shift the burden of proof to the Defendant in relation to establishing identity of the Facebook poster. The State’s position is untenable based on Trial evidence and applicable case law.

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

a. Harassment in Second Degree

Pursuant to C.G.S. §53a-183(a)(2), “[a] person is guilty of harassment in the second degree when … with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm.” To convict, the State must prove all elements, and identity, beyond a reasonable doubt. See State v. Marsala, 43 Conn.App. 527, 531 (1996). The State claims trial evidence linked the Defendant to “Tasha Moore,” the Facebook handle under which disparaging remarks about the victim were posted. Circumstantial trial evidence supporting this claim included: (1) Defendant’s access to the Brodys’ home, (2) Ms. Brody’s testimony that her friends, all of whom also had access to her home, were at high school graduation at the time of the postings, and (3) that the defendant admitted to mailing the Facebook materials posted, to Mr. Brody, the Victim’s father.

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The sufficiency question is “whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Hersey, 78 Conn.App. 141, 167-68 (2003). However, inferences “which do not have a basis in facts established by the evidence cannot be drawn or relied upon to sustain a verdict” and the trier of fact “may not resort to speculation and conjecture.” Id., at 168, citing State v. Sivri, 231 Conn. 115, 131–32 (1994). Regarding identify, such facts are “not classically dependent upon circumstantial evidence for its proof.” State v. Farrar, 7 Conn.App. 149, 155 (1986). The Defendant did have periodic access to the Brody home, but others had similar access. The Victim testified that at the time of the posting, she was at a graduation ceremony with her classmates. This evidence does not exclude all friends that had access, but only “classmates.”

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Regarding other friends, the Victim testified that she “did not think that any of [her] friends had done it.” Tr. 3/22/13, at 19. Interestingly, trial evidence merely revealed that at some point, the Defendant possessed copies of pages that were posted on Facebook. Moving from Defendant to “Tasha Moore” involved assuming none of the Victim’s friends with access took the Victim’s personal notes. Simply put, it was based on Defendant’s access to the home, Ms. Brody’s speculation that none of her friends could have done it, and Defendant’s possession of copies of the some of the posted

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

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materials. Essentially, the State moves from conjecture to elimination. The Trier “may not resort to” this process in reaching its decision. See Hersey, at 167-68. Absent hard evidence that no other friends could have done the posting, the Victim’s testimony only established her opinion or belief that other friends could not be involved. “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact

that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met . . . but where it is only a single fact which is essential to prove an element, such evidence must support the inference of that fact beyond a reasonable doubt.” State v. Grant, 219 Conn. 596, 604–605 (1991) (emphasis added). Mere possession by the Defendant of copies of some of the posted material, hardly rises to proof beyond a reasonable doubt that the Defendant stole the originals and proceeded to post the same as “Tasha Moore.” The State also argues that the Defendant’s initial “lack of reaction” to Mr. Brody’s statements about the Facebook postings, and the “anonymous” letter she sent, could have been relied on by the Trier to establish the Defendant as culprit. This was her “guilty conscience” or “evasive action to avoid the detection of a crime.” See State’s Br., at 19-20. Silence in the face of an accusation, according to the State, makes the Defendant guilty. Our courts have long held that “although evidence of silence in the face of an accusation may be admissible under the ancient maxim that silence gives consent the inference of assent may be made only when no other explanation is consistent with silence.” State v. Leecan, 198 Conn. 517, 522–23 (1986) (emphasis added). More specifically, “when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be