S20N-CR10-0127478S STATE OF CONNECTICUT V.

TERI BUHL

: : : : : : : :

SUPERIOR Court JUDICIAL DISTRICT OF STAMFORD/ NORWALK G.A. #20 NORWALK 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 and Fourteenth Amendments to the United States Constitution, Article First Section 4, 8 and 9 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 captioned matter and enter a judgment of acquittal on all remaining counts. The Defendant relies on 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 in the 2nd Degree in violation of C.G.S. 53a-183, Breach of the Peace in the 2nd Degree in violation 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 acquittal on all counts, and said motion was denied by the Court. See Transcript of State v. Teri Buhl, March 22, 2013, at 99 (hereinafter referred to as Tr. followed by the page number(s)). Defense Counsel thereafter indicated that the Defendant would not be introducing 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 Harassment in the 2nd Degree, and Breach of Peace in the 2nd Degree. Tr. at 137. Bond was increased by the Court upon being informed that the Defendant was not ready to proceed to Sentencing at that time, and Sentencing was set for March 25, 2013. Counsel appeared as scheduled, and new Counsel Stephan Seeger entered an additional appearance. New Counsel requested a further continuance in order to prepare post verdict motions. The Court granted said continuance, and this Motion to Set Aside, along with a Motion for New Trial were filed by April 1, 2013, pursuant to the Courts scheduling order. b. Trial Backdrop: Limitations on Admissibility of Facebook Evidence During Ms. Brodys testimony, she referred to various Facebook functions and features, including tagging, privacy settings, Member page access restrictions, comments, and picture viewing. Notably, the Court placed the parties on notice that it had little familiarity with Facebook and its mechanics,1 When privacy settings were brought up in Ms. Brodys testimony, the Court (as a trier of fact) made it known that it did not understand what was being asked of the witness. Tr. at 21-22. Despite this

1 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 dont keep a Facebook page, so please feel free to explain the signicance of dierent 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 qualied to oer the same. For example, Counsels hearsay objec8on preceding the admission of States Exhibit 1, the Cablevision document provided to Police purpor8ng to establish that a par8cular IP address was registered to the Defendants 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 insucient 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 Facebook evidence it sought to introduce. Thus, the only record evidence addressing the complexities of Facebook, emanated from Ms. Brodys lay testimony, which she confirmed was her perspective. Tr. at 21. The Court reiterated its position elsewhere in Ms. Brodys testimony, clarifying States Exhibit 3, stating: [so let me just make sure I understand because like I said, Im not familiar with Facebook. States Exhibit 3 is a depiction or a copy of someone elses Facebook page? Tr. at 14. When the Witness answered in the affirmative, the Court inquired further, limiting its question to the Witnesss personal knowledge, asking: to make sure I appreciate it, whats your understanding as to whose Facebook page is being shown in States 3? Tr. 14-15. To which the Witness replied Tasha Moores 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 Tasha Moores, 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, Im asking you if you know. If there is a way to tell what someones 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.
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THE Court: Okay. THE WITNESS: And I could see the same content from my friends who was friends with her. Tr. at 37. The dialog illustrates that that the Court is asking if there is a way to tell what somebodys Facebook privacy setting is. The witness answers indicating her impression (how it seemed). While this constitutes some evidence, if credited, it is not necessarily weighty enough to substantiate an element such as publicity, required for conviction on a Breach of Peace charge. If on the other hand, an expert from Facebook came into Court to testify that the manner in which Ms. Brody viewed the posting, was in fact via a public posting, the Court would have reliable, authenticated, evidence of publicity. On one of the States objections to Defense Counsels inquiry into Megan Brodys knowledge of friending others on Facebook, the Court actually makes its position on admissibility of Facebook Policy very clear. In overruling the objection and directing Counsel to rephrase a question for the witness, the Court states that unless [Counsel] can qualify this witness, [the Court is] not allowing questions as to the Facebook policy. I may allow questions as to her understanding tied to the time when shes viewing Facebook pages. Tr. At 39. Notably, this reiteration comes after several instances of the Court demonstrating a desire to avoid questions calling for an independent and/or expert Facebook witness. And overall, this position is certainly in keeping with the Courts earlier admission that it lacked familiarity with Facebook--clearly implying that Facebook intricacies require adequate explanation and/or authentication. It is the position of the Defense that the Courts Verdict is based on
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misinterpreted, inadmissible and/or otherwise unreliable Facebook evidence, from which faulty inferences are made possible. In spite of the Courts outward attempts to limit Facebook functionality evidence, to the personal non-technical Facebook knowledge of witnesses, the Courts reasoning appears to be infected by inferences that would require expert testimony, which the State did not provide in this case (in spite of the Courts obvious intention to limit Facebook testimony and guard against inadmissible hearsay and/or authentication issues). The Courts dialog with Attorney DiScala at the close of Trial seems to illustrate that the Court makes several unfounded inferences, unsupported by the evidence in the record, including: (1) the Defendant being in possession of the mailed materials at the time of the posting was to the exclusion of all others, which can generate a reasonable inference that she must therefore have actually posted, (2) that the posting was done from an IP address linked to the Defendant, and (3) that alternative means of posting on Facebook other than from the Defendants IP address are not possible. See infra, Sect II a-c, pp. 7-19. c. Evidence at Trial Trial At Trial, the State advanced evidence confirming that one victim, Megan Brody, was informed by a friend that disparaging comments about her were posted on Facebook, on a page purporting to be authored by Tasha Moore. Tr. 3/22/13, at 9. Said comments, more particularly, were posted on Tasha Moores Facebook page. Upon learning of the posting, Megan Brody claims that she accessed the Tasha Moore posting via a friends Facebook page. Tr. 3/22/13, at 9, 14-15. In fact she could only view these statements through this friends Facebook page. Tr. 3/22/13, at 23. According to Ms. Brody, she was not able to see these comments directly, because only
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private invitations would allow her to see Tasha Moores Facebook page. Tr. at 23. When she looked at Tasha Moores Facebook page, she noticed that it contained images of copies of pages from her diary. Tr. at 10. Ms. Brody also testified that she was tagged in something on Facebook and this tagged material referred to her as someone who gets drunk at parties, is an easy hook up, and that she gave a blowjob to someone. Tr. at 15. After seeing Tasha Moores page and comments, Ms. Brody was really upset, and too upset to go out that night, based upon her exposure to the posting. Tr. at 12, 16. When asked further did [the comments] affect [her] in any other way? Ms. Brody replied that she was worried that others may see these comments, and that she was too upset to deal with it. Tr. at 16. After seeing the comments, Ms. Brody decided to contact Tasha Moore through Facebook the following day, asking her to take down the comments, or she would go to the police. Tr. at 17. That same day Ms. Brody took copies of these comments, and brought them to the New Canaan Police. Tr. at 17-18. Immediately after she visited the police, she notified her parents about what was happening. Tr. at 19. There was no evidence to suggest that either parent learned about the events, or any fact pertaining to their daughters report, from any other source prior to the time they were informed by her. Essentially, it was their own daughter who made them aware of the facts surrounding the commentary and diary pages being posted by Tasha Moore. The evidence suggested that neither Ms. Brody, nor her parents, knew who this person was. States evidence established that Ms. Brody, went to the Police without her father initially; she informed her father about what happened, and the events surrounding her
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going to the police station, and the following day, or shortly thereafter, he accompanied her back to the Police Station, after receiving an anonymous mail delivery at the end of the day on Thursday [June] 24th, which included copies of pages from his daughters diary, along with an unsigned note. Tr. at 44. Mr. Brody claimed to be shocked and surprised or outraged, by the contents of the package. Tr. at 45. After receiving the package, Mr. Brody informed the Defendant (whom he was dating at the time) about these events. Tr. at 46. Two days later the Defendant told Mr. Brody that she was contacted by someone (a female) who knew Ms. Brody, stating she was concerned about his daughter, and at that point the person gave the contents of the mailing he received to her, including copies of the diary pages. Tr. at 56. When pressed for her source, the Defendant refused to reveal the name to Mr. Brody. Tr. at 56. Notably, Mr. Brody testified that he expected the Defendant to help him by providing the source to him, however, the Defendant indicated that she wold not give up her source. At no time did the Defendant admit to acting under the name of Tasha Moore or of posting anything on Facebook. Tr. at 74. The State further offered testimony of Seargent Ogrinc (an investigating Detective), who testified that during the investigation of this case, he executed two ex parte orders one for Facebook and one for Cablevision. Tr. at 80. Ogrinc did not identify for the Court what exactly she obtained from Facebook, and whether or not she was able to link Tasha Moores Facebook activity to the Defendant. Tr. at 82, 84-85. She was able to tell the Court that she obtained an IP address from Cablevision, that

was associated with an account held in Defendants name. Tr. at 82.2 Finally, the State offered evidence through a Cablevision representative that showed that an IP address existed and that it was connected with one of their clients, who happened to be the Defendant. Tr. at 3. II. Law and Argument Pursuant to P.B. 42-51, 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. Moreover, the Court has an inherent, common law power to set aside a verdict. See Bartholomew v. Clark, 1 Conn. 472, 480 (1816). The Connecticut Supreme Court has reaffirmed the continuing vitality of this mechanism. See, e.g., State v. Avcollie, 178 Conn. 450, 455 (1979) (stating the trial Courts power to set aside a verdict is inherent ); see also, Palomba v. Gray, 208 Conn. 21, 23-24 (1988). Thus, 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). Moreover, the 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). When a verdict is challenged on the ground of insufficient evidence, the Defendants due process rights under the Fourteenth Amendment to the United States It should also be noted that the State did not put on any expert testimony that would explain to the trier of fact what an IP address is, how it works and what its significance is.
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Constitution are implicated, as the Constitution protects a criminal defendant from conviction absent proof beyond a reasonable doubt of each fact necessary to constitute the elements of the crime. See State v. Watts, 71 Conn. App. 27, 31 (2002), citing In re Winship, 397 U.S. 358, 364 (1970). The applicable test on motion to set aside the verdict based on insufficient evidence is whether the [trier of fact] could reasonably have concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. Avcollie, at 457-58, citing State v. Chetcuti, 173 Conn. 165, 172 (1977). 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). a.Harassment in the 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. Unlike the crime of Breach of Peace, Harassment is not a threatening language crime and is predicated on conduct. See State v. Moulton, 120 Conn.App. 330, 345 (2010). Notably, where the State prosecutes the Defendant on the basis of the content of her communication, the Defendants First Amendment rights are implicated, and the statute becomes unconstitutional as applied to the defendant. Id., at 337; see also, State v. LaFontaine, 128 Conn.App. 546,
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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 via mail and does not seek to regulate the content of communications made by mail. State v. Murphy, 254 Conn. 561, 568 (2000) citing State v. Snyder, 49 Conn. App. 617, 625 (1998) (emphasis added).

i.Evidence Did Not Permit a Finding of Guilty Beyond a Reasonable Doubt At Trial, the evidence put on by the State did not permit a finding of guilt beyond a reasonable doubt on the charge of violating C.G.S. 53a-183(a)(2). The two possible instances of harassment were the Facebook posts by Tasha Moore, and the mailing of copies of Ms. Brodys diary to Mr. Brody by the Defendant. Neither instance is supported in the evidence. With respect to the Facebook posts, the State was never able to link up Tasha Moore and the Defendant. All that was elicited from Sgt. Ogrinc and the Cablevision representative was that during an investigation the police obtained an IP address from Cablevision that matched that of the Defendant. That IP address was never linked up to Tasha Moore or the computer from which the posts in question were made. However, in addition to the linking the Court seems to have connected the Defendant to Tasha Moore by her conduct in disclosing to Mr. Brody, that she in fact mailed the diary pages to him. The Court seems to have relied on her two day delay in letting Mr. Brody know about this, and her reluctance to reveal her source (all of which are consistent with her professional duties and obligations as a reporter to protect her sources).
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Even if Tasha Moore could somehow be connected to the Defendant, the evidence at trial revealed that these posts were not addressed or sent in any way to Ms. Brody, and that she found this out only from someone else who saw them on Facebook. Thus the evidence did not satisfy the statutory elements of communicating with the victim in a manner likely to cause annoyance or alarm or with intent to harass, annoy or alarm her. The method of communicating in this case was simply not designed to reach her, and did not evidence any intent to do so. There simply was no evidence to support the requisite specific intent to harass Ms. Brody through Facebook. There was no motive or explanation as to why Tasha Moore (or the Defendant) would post the material at issue. On the other hand, evidence was consistent with someone other than the Defendant posting comments on Facebook and around the same time, according to the Defendants statements to Mr. Brody, providing her with the same kind of information, which she in turn chose to disclose to Ms. Brodys father out of concern, but in an anonymous manner, that would allow her to maintain her professionalism as a member of the press.3 Thus, the trier of fact had before it a theory consistent with the innocence of the accused and therefore could not find her guilty beyond a reasonable doubt. See State v. Lemoine, 256 Conn. 193, 205 (2001) (jury instructed on reasonable doubt as [i]f you can in reason reconcile all of the facts proven with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty). Moreover, the Court (as a trier of fact) never had the benefit of expert testimony regarding the use of Facebook and methods of communication in that social medium.
3

Connecticut expressly protects members of the press from compelled disclosure. See C.G.S. 52-146t, see also, Branzburg v. Hayes, 408 U.S. 665 (1972)
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This is all the more poignant in light of the Courts own admission and warning to the parties that it needed assistance in this matter to appreciate the issues involved. See supra, pp. 2-4 & n.1. Thus the trier of fact in this case was left without necessary guidance on how Facebook functions, which was a necessary stepping stone to determining whether or not the communications were directed to the victim, and if so, whether these communications in any way indicate the posters intent to harass. Similarly, expert testimony on the complexities of Facebook would be necessary to prove who made the posts on Facebook. As our Appellate Court recently stated, an electronic communication, such as a Facebook message could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged into their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. State v. Eleck, 130 Conn.App. 632, 638-39 (2011). Consequently, lack of expert testimony in this case deprived the trier of fact of evidence sufficient to convict the Defendant of harassment in the second degree by use of Facebook. Moreover, under Eleck, authorship by Terri Buhl cannot be established as a matter of law, even if there was evidence that a posting emanated from a particular account associated with an IP address assigned to her; the only evidence remotely close to linking the message to Terri Buhl, is that she had an IP address, which was assumed to be the same as one which came back to Detective Orgrinc pursuant to an

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ex parte order4 which produced Facebook information. This information was not authenticated--and remained at all material times, rank hearsay. Regardless, however, even if we assume the origin of the posting is established by inference based on IP evidence, which it is not, our Appellate Court has clearly held that a message coming from a particular account is insufficient, without further authenticating evidence proving authorship. Id. The general unfamiliarity with Facebook, and the Courts seeming attempt to permit an inference of authorship through the States evidence that an IP address belonging to Teri Buhl was something the Police investigated in connection with an ex parte warrant for Tasha Moore information, demonstrates a two-fold problem. Firstly, there is no expert testimony explaining the workings of IP addresses in connection with Facebook accounts, and anything that could come close to this would need to be authenticated by someone other than a police officer, who simply received records an investigated in a particular direction thereafter. Secondly, our Court of Appeals clearly states that proving only that

There can be little doubt that the State attempted to circumvent obvious hearsay issues which had been addressed by Defense Counsel, and arguably even by the Court, during the cross examination of Detective Ogrinc. The State purported to be introducing evidence of a link between an IP address conrmed by Cablevision to belong to Terri Buhl, supported by States Exhibit 1, for the limited purpose of demonstrating how responses to ex parte Order information, prompted the ofcer to act in her investigation. See generally, Tr. pp. 79-85. Presumably, this was done in order to set up an inference, albeit impermissible because it would require the Courts consideration of rank hearsay, that since she continued to investigate the Defendant in connection with information about Tasha Moores IP address, it must follow that the addresses were linked. Notably, however, all that was established was this Detective sought an Order for Tasha Moore Facebook information, Tr. at 80, that she sought and received Cablevision information establishing an IP address belonging to Teri Buhl, Tr. at 82, and that said IP address was what she was investigating, Id.. The Court did not admit an answer to the States question whether the IP addressed assigned to Tasha Moore was the IP address assigned to Teri Buhl. Tr. at 84, ll 11-13. It was objected to by Counsel clearly, and claim of relevance did not rescue the States attempt to extract an answer, since the Court noted that the witness had already established that she received information back, and she continued her investigation based on that information. Tr. at 85, ll. 10-14. What is unclear, is whether the Court has discounted this evidence, in making inferences about authorship. In argument, the Court spends a signicant amount of time soliciting answers from Defense Counsel, which suggest that the Court could infer from the record that the link was established. To that extend, the same would violate the Defendants Confrontation rights, and ignore Eckel.

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a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. Id (emphasis added). Thus, there can be little doubt that to admit Facebook account information as evidence, especially without proper authentication, violates the Defendants Confrontation Rights under both the State and Federal Constitutions, and clearly ignores the guidance in Eckel5. The Court seems to suggest that other evidence exists by which a permissible inference could be made, that the Defendant posted the offensive material, and therefore, the further inference that harassment or annoyance was intended. The claim appears to be that the Defendant possessed the material at the time the posting occurred; namely, at around 5pm on June 23, 2011, and from this fact, the Court can reasonably infer that she also posted the materialessentially, the Court asks what evidence is there that anyone else could have done the posting? See Tr. at 112-13 (noting Defendant had access at 5pm the previous day when the posting appears to have been done). This leap from possession to posting is simply inadequate to conclude beyond a reasonable doubt, that the Defendant is Tasha Moore, the author of the posting. In and of itself, the Court would have to make the conclusion that possession as claimed, ipso facto, proves posting beyond a reasonable doubt. The Defendant argues that such a finding is not supported by the evidence, and therefore, the Court would not need to know the hypothetical answer pertaining to who else. If
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The Court does imply elsewhere, that if the attempted link evidence were ignored, that a reasonable juror could nd that the Defendants possession of the mailed material at 5:00pm the night prior to Mr. Brodys receipt of her mailing, would prove she authored the posting. See generally, Tr. 112 to 115. While this position is addressed elsewhere herein, infra at pp. 19-20, it is noted here, to establish that the Courts only viable consideration of such a link must come in the form other evidence--non-Facebook/IP related evidence, which is plagued by inadmissibility issues. The possession to posting inferences is the only other possibility addressed by the Court in its inquiry, and would comprise the only evidence available for the Court to make an inference that Teri Buhl is Tasha Moore and therefore, the guilty verdicts are sustainable.

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possession cannot produce posting beyond a reasonable doubt, the question is academic. There has been no finding, by this Court that the same has been proven beyond a reasonable doubt, even though the question has been canvassed. In fact, it would imply a burden on the defense to prove an alternative, to one which could never hope to have been established beyond a reasonable doubt in the first place. The same would constitute impermissible burden shifting, contrary to the Defendants State and Federal Constitutional rights to Due Process of Law. In order to determine guilt as to Harassment of Megan Brody, the State must prove that the Defendant posted, that she is Tasha Moore, or they cannot find the requisite element of communication/posting. This is a necessary element of the proof required for the finding. The Constitution protects a criminal defendant from conviction absent proof beyond a reasonable doubt of each fact necessary to constitute the elements of the crime. See State v. Watts, 71 Conn.App. 27, 31 (2002), citing In re Winship, 397 U.S. 358, 364 (1970). Clearly, no such finding has been made, or could be made, beyond a reasonable doubt. With respect to the Defendants anonymous mailing of Ms. Brodys diary pages to her father, the State did not put forth sufficient evidence to prove that the Defendant sent this material with the intent to harass Mr. Brody or his daughter. There was no evidence of motive to harass. Secondly, evidence clearly established that Mr. Brody was first informed of the events of the posting, when his daughter called him immediately after reporting the posting to the police, at a time when he was not in possession of any mailed materials. This first exposure generates his feelings and reactions, and the same cannot be used as circumstantial evidence of any intent by the
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Defendant to harass via the mailing--the mailing is subsequent to his initial discovery of the incident. There was nothing particularly alarming in the Defendants use of mail services to deliver the package to Mr. Brody. The contents themselves were copies of Ms. Brodys own words and a note from the Defendants source who was concerned with Ms. Brodys behaviorinformation which he was already familiar with from his daughter having relayed the same immediately after she first spoke to Officer Gulino. Contrariwise, the evidence points to the reasonable hypothesis that the Defendant chose this method of communication to alert Ms. Brodys father to his daughters problems, and at the same time, honor her professional obligation to her source. She heard him express how distraught he was over the issue of the posting, at a dinner, prior to the Defendant disclosing she was the anonymous mailer. One can readily and reasonably infer that she reacted out of sympathy to him, and tried to alleviate his suffering in the best way she could, under the circumstances. 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. at 52 (relationship was good, he trusted her), Tr. 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.at 58 (on redirect by the State, the relationship was harmonious, open line of communication, no reason to believe she wouldnt be open with him). Ultimately, the evidence suggested that there were no problems in the relationship prior to the Defendants failure to disclose her sourcethis harmony, along
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with Mr. Brodys emotional and financial support, is not something that can be reasonably reconciled with any destructive motive. In short, there is no evidence of a motive that would justify any intent to harass or annoy, whatsoever. In fact, a reasonable juror could easily reinforce the conclusion that the Defendant only acted to protect her source--likely one of the only things that would have interfered with her being her usual, open and honest self to Mr. Brody. By all accounts, the Defendant had an obvious interest in preserving her relationship with Mr. Brody, not to harass or annoy him, and jeopardize all they had between them. There was clear evidence in the record that the Defendant was a journalist6 , that she was working on a story about underage drinking7, and that she refused to give the name of the individual who provided her with the contents of the mailing because that individual was a source.8 There can be little doubt in the evidence that Ms. Buhl was an investigative reporter working on a story about underage drinking, and a reasonable inference is that she would have sources, as a result thereof. Further that she would protect the sources, yet based on a loving relationship, attempt to warn Mr. Brody of what was going on with his daughter. The evidence bears this out, and it is a reasonable conclusion to draw. It is reasonable in light of the evidence, and constitutes an alternative theory of the events in question.

Mr. Brody conrms, Tr. at 54 (journalism industry, worked for Greenwich Time, he knew her to be an investigative journalist).
7

See Tr. at 68, Gulino received some letters about underage drinking, aside from Facebook, and Ms. Buhl spoke about underage drinking that was going on in New Canaan. She was doing investigative reporting on it. See also, testimony of Orgrinc, conrming she told press Facebook postings were useful in obtaining information about adult sponsored underage drinkiing parties--herself positing an alternative reason for a Facebook posting such as the one at issue in this case especially for iphotographs, whereabouts, and idnetication. Tr. at 80.
8

Mr. Brody indicated, Tr. at 56, she had promised to keep that information condential, and that she did so on more than one occasion, including his last visit with her where he returned belongings to her; he asked her to reveal the source, and she said she could not.

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Only in ignoring this evidence, could the Court find that no other reasonable alternative explanation existed for the Defendants conduct in mailing the materials. Once again, faced with reasonable alternatives, the trier of fact could not have found the Defendant guilty beyond a reasonable doubt. See Lemoine, at 205.
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Verdict Was Contrary to the Law At trial, the States theory (as exhibited by the evidence put on and arguments

made by the State to the Court) was that the content of Facebook communications and the communication by mail to Mr. Brody was so shocking or terrible as to constitute harassment. The State spent much time eliciting testimony from the Brodys pertaining to how the letters made them feel. As the State stated in argument on the record: the communications in the emails and handwritten letter were intended to annoy or alarm the Brodys. Tr. at 101. In addition, the State further referred to the disparaging comments on the internet. Tr. at 102. On the other hand, the actual methods of communication in this case, appear to have remained in the background, and left unexplored and/or unaddressed by the State. There was a post on Facebook that was clearly not directly addressed to Ms. Brody. There was an anonymous letter sent to Mr. Brody by ordinary means. Once Mr. Brody told the Defendant about the distress caused by these events, the Defendant remedied the situation by disclosure. She did as much as she could in light of her professional obligations. Thus, the record reveals that the Defendant in this case, was prosecuted for the content of the communications that are attributed to her, and not the methods of communication. Consequently her conviction also violates her First Amendment rights. See Moulton, at 337.
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b. Breach of the Peace in the Second Degree 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 has long ago spoken on the issue of conduct that is permissibly punishable by this kind of a statute, when it stated that: 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. Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940) (emphasis added). 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 Courts have 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 defendants 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
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feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm. Id., at 670 (emphasis added). i.Evidence Did Not Permit a Finding of Guilty Beyond a Reasonable Doubt At trial, the States evidence did not permit a finding of guilt beyond a reasonable doubt on the charge of violating C.G.S. 53a-181(a)(4). The two possible instances of breach of peace were the Facebook posts by Tasha Moore and the mailing of copies of Ms. Brodys diary to Mr. Brody by the Defendant. With respect to the Facebook posts, the State was never able to link up Tasha Moore and the Defendant as already discussed supra. However, the Court seems to have connected the Defendant to Tasha Moore by her conduct in disclosing to Mr. Brody that she in fact mailed the diary pages to him. The Court seems to have relied on her two day delay in communicating this to him, and her reluctance to reveal her source (all of which are consistent with her professional duties and obligations as a reporter to protect her sources). To this extent, an inference is being drawn about conduct that is consistent with this Defendants First Amendment and statutory rights, pertaining to protecting sources. This places a chilling effect on such rights, since the press would need to fear such inferences being drawn in any criminal case, wherein due to the confidentiality, no innocent explanation could be espoused. Press would not be similarly situated, since they could not avail themselves of a defense against such an inference, without violating confidentiality of sources. This is precisely what the shield statute is designed to prevent. The Court also appears to claim that the Defendant possessed the material at the time the posting occurred; namely, at around 5pm on June 23, 2011, and from this
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fact, the Court can reasonably infer that she also posted the materialas if to ask what evidence is there that anyone else could have done the posting? This leap from possession to posting is simply inadequate to conclude beyond a reasonable doubt, that the Defendant is Tasha Moore, the author of the posting. In and of itself, the Court would have to make the conclusion that possession as claimed, ipso facto, proves posting beyond a reasonable doubt. This would be a necessary fact, requiring proof in the evidence. The Constitution protects a criminal defendant from conviction absent proof beyond a reasonable doubt of each fact necessary to constitute the elements of the crime. See State v. Watts, 71 Conn.App. 27, 31 (2002), citing In re Winship, 397 U.S. 358, 364 (1970)(emphasis added). The Defendant argues that such a finding is not supported by the evidence, and therefore, the Court would not need to answer the question what evidence there is of anyone else having done the posting. In fact, this would constitute impermissible burden shifting contrary to the Defendants State and Federal Due Process rights. Unless there is a finding that the posting was done by the Defendant, beyond a reasonable doubt, there is no alternative theory analysis required. The subject to which an alternative would be compared has, ab initio, never risen into existence.9

The issue is illustrated in the reasoning of the Court in State v. Dullivan, 523 A.2d 1353, wherein the Connecticut Court of Appeals nds impermissible burden shifting in an instruction which implores a jury to draw an inference on circumstantial evidence, if they can do so in a logical and reasonable manner, and if its strong enough that they could nd the fact to be inferred was true more probably than not. The strength of the inference must not be separated from its existence, even logical or possible existence. Unless the original proposition rises to the level of having been proven beyond a reasonable doubt, and not just more probable than not, the inference itself is impermissible. Here, the possession to posting is an impermissible inference, against which no other alternative needs to be compared. This Court appears to proceed to step two, deciding reasonable alternatives, while ignoring the weight of the evidence supporting the essential fact required to prove an element of the charges of Harassment and Breach of Peace; namely the posting. Like in Dullivan, there is not overwhelming evidence that the Defendant posted the offensive materials on Facebook.

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Similarly, there was no evidence to support the requisite specific intent to cause inconvenience, annoyance or alarm to Ms. Brody (or anyone else) through Facebook. There was no motive or explanation as to why Tasha Moore (or the Defendant) would make such a post and in such a way. On the other hand, evidence was consistent with someone other than the Defendant (Tasha Moore) posting comments on Facebook and around the same time, according to the Defendants statements to Mr. Brody, providing her with same kind of information, which she in turn chose to disclose to Ms. Brodys father out of concern, but in an anonymous manner that would allow her to maintain her professionalism as a member of the press. As previously discussed supra, the trier of fact had before it a theory consistent with the innocence of the accused and therefore could not find her guilty beyond a reasonable doubt. See Lemoine, at 205. Moreover, there was no evidence presented that would show, beyond a reasonable doubt, that Facebook pages are in fact a place where ones comments are made publicly. In fact testimony revealed that Facebook pages have privacy settings and that not everyone can view someones page since an invitation may be required. Additionally, the Court (as a trier of fact) never had the benefit of expert testimony regarding the use of Facebook and methods of communication in that social medium (and the Court admitted as much). Thus the trier of fact in this case was left without necessary guidance on how Facebook functions, which was a necessary stepping stone to determining whether or not the communications were such that they were made in public or in private, or were intended to cause inconvenience, annoyance or alarm to anyone. Similarly, expert testimony on the complexities of Facebook would be necessary to prove who made the posts on Facebook. See Eleck, at 638-39.
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With respect to the Defendants anonymous mailing of Ms. Brodys diary pages to her father, the State did not put forth sufficient evidence to prove that the Defendant sent this material with the intent to inconvenience, alarm or annoy anyone. There was no evidence of motive to do so by the Defendant. On the contrary, the evidence points to reasonable hypothesis that the Defendant chose this method of communication to alert Ms. Brodys father to his daughters problems and at the same time honor her professional obligation to her source, choosing the least intrusive and least alarming or publicly humiliating method. Once again, faced with this theory, the trier of fact could not have found the Defendant guilty beyond a reasonable doubt. See Lemoine, at 205. More importantly, there was no evidence to suggest that this mailing was made publicly and the State did not even argue this in closing argument. Thus the States Breach of Peace charge was based solely on the Facebook posts made by Tasha Moore on her own Facebook page. ii. Verdict Was Contrary to the Law

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 shaken or upset when he spoke with her. There was no other testimony or evidence as to the effect these postings and letters had on anyone else. This evidence alone does not pass muster, for a conviction that is constitutionally sound. There had to be some likelihood that the statements would produce violence in others, or acts of public
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disorder. See Cantwell, at 308. At the very least, there had to be some evidence to indicate that the Defendants 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.10 The Defendants 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 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 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. 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

Ms. Brody did testify that she was too upset to go out after reading the Facebook posts, but there was no evidence suggesting that the posts were made with intent of keeping her at home.
10

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by threatened danger or harm. Wolff, at 670. Thus, this conviction is contrary to the law and violates the Defendants First Amendment rights.

CONCLUSION Based upon the aforementioned analysis of each remaining count in the information, the Court should set aside the Verdicts, since confidence in the same appears to be undermined by the facts and law provided herein. Without proof of the post source, there cannot be a conviction. Even if posting could be attributed to the Defendant, there is ample evidence to support the defense claim that the Defendant did nothing with any harmful intent whatsoever. WHEREFORE, based on the facts and the law articulated in this Motion, the Defendant moves this honorable Court to set aside the verdict in the above captioned matter and enter a judgment of acquittal on all remaining counts.

Respectfully submitted,

THE DEFENDANT, TERI BUHL By:________________________________ Stephan E. Seeger (415349) Law Offices: Stephen J. Carriero, LLC 810 Bedford Street, Suite 3 Stamford, CT 06901 Tel: (203) 273-5170 Fax: (203) 357-0608

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ORDER The foregoing Motion having been heard is hereby GRANTED/DENIED Dated this ____day of _______________________, 2013

_______________________________ JUDGE / ASSISTANT CLERK

CERTIFICATION I, Stephan E. Seeger, Esq., do hereby certify that a copy of the foregoing Motion was delivered by certified mail and/or hand delivered to the States Attorneys Office in Norwalk Connecticut, on April 1, 2013. Donna Krusinski, Esq. Office of the States Attorney 17 Belden Avenue Norwalk, CT 06850

_________________________________ Stephan E. Seeger

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