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STATE OF CONNECTICUT v. TERI A. BUHL

(AC 35606)

Beach, Bear and Pellegrino, Js.*

Argued April 15—officially released August 12, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, geographical area number twenty,

Wenzel, J.)

Stephan E. Seeger, assigned counsel, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s

attorney, with whom, on the brief, were David I. Cohen,

state’s attorney, and Donna M. Krusinski, assistant

state’s attorney, for the appellee (state).
Opinion

BEAR, J. The defendant, Teri A. Buhl, appeals from

the judgment of conviction, rendered following a trial

to the court, of harassment in the second degree in

violation of General Statutes § 53a-183 (a) (2) and

breach of the peace in the second degree in violation

of General Statutes § 53a-181 (a) (4).1 On appeal, the

defendant claims that there was insufficient evidence

to sustain her conviction of either crime. We affirm in

part and reverse in part the judgment of the trial court.

The following facts, which reasonably could have

been found by the court, and procedural history inform

our review. In June, 2010, the defendant, a journalist,

was involved in a romantic relationship with P, and she

frequently visited his home, where P’s daughter M also

resided.2 M kept some diary entries of her personal

thoughts and feelings in a drawer in her nightstand. On

June 23, 2010, seventeen year old M attended her high

school graduation and had dinner at a friend’s house.

When she later went home to change her clothes before

going out with friends, M received a telephone call from

a friend who told her that he had seen a ‘‘fake Facebook

profile’’3 of someone using the name ‘‘Tasha Moore’’ that

had information about M on it. M went onto Facebook,

viewed Moore’s profile through her friend’s Facebook

page, and saw the following message on Moore’s page:

‘‘[M] . . . gets so drunk at parties that boys know she

is an easy hook up. In April at [A’s] house party she

gave [O] a blow job and then threw up. [O] calls her

that deep throat JAP. [M] told her friends that . . . she

thought giving the best BJ would help make [O] her

boyfriend. You wonder why some . . . [high school]

girls never learn how to behave around boys.’’ M was

quite upset ‘‘because the person that they had identified

was not even—was not the right person and that was all

false information,’’ and she was concerned that others

would see the posting.

Moore’s Facebook profile also contained photographs of some of M’s handwritten diary entries, which

contained personal information about M’s attendance

at a party where she performed fellatio on a boy she

liked. M also noticed that Moore had ‘‘friended’’ several

of M’s friends and classmates, who, because of their

status as ‘‘friends’’ of Moore, could view Moore’s profile.

See footnote 3 of this opinion. Distraught, M did not

go out with her friends that night, but stayed at home,

where she received additional telephone calls from

friends who had seen Moore’s profile. M sent a message

via Facebook to Moore, asking her to take down the

posts and warning her that, if she did not take them

down, M would go to the police. When the posts

remained, M went to the police on June 24, 2010. M

also telephoned her parents and told them what had

happened. Later, M returned to the police station with

her father, P, who learned the details of what had hap-
pened directly from M.

Later in the day, on June 24, 2010, P received a sealed

envelope, sent by overnight mail, containing copies of

M’s handwritten diary pages and an unsigned letter that

provided: ‘‘[P], I am a casual friend of your daughter

[M]. I told my mom about the story you’ll read in this

letter that [M] shared with us this spring and she said

I should share it with you. [O] the guy [M] hooked up

with, has been bragging to my boyfriend and other

senior guys about what [M] did with him that night.

He’s not really a nice guy. She just gets so drunk so

fast sometimes I don’t know if she even remembers

hooking up with guys. I know she wants [O] to be her

boyfriend but he hardly talked to her after that night.

She only showed a few of us these letters when she

got back from vacation. Please don’t tell her one of her

friends wrote you but my Mom said it is best if you

read them.’’ M and P returned to the police department

with these materials.

On June 25, 2012, P had dinner with the defendant

and told her what had happened. On June 27, 2010, the

defendant told P that it was she who had sent him the

letter after meeting with an anonymous girl who had

the materials in her possession. The defendant stated

that she convinced the girl to allow her to turn the

materials over to P along with a cover letter explaining

the circumstances. The defendant would not disclose

the girl’s name to P because she stated that she had

promised to keep the source confidential. The defendant told P that she would contact the investigating

police department. P returned to the police station a few

days later and met with Officer Daniel Gulino. Gulino

wanted the names of everyone who had access to P’s

home because there was no sign of forced entry and

someone had obtained pages of M’s diary, which was

kept in her nightstand. P also turned over the materials

sent by the defendant and told Gulino that the defendant

would be contacting him.

After the defendant attempted to contact Gulino by

e-mail and by telephone, Gulino made contact with the

defendant by telephone. The defendant told Gulino that

she was doing an investigative report on underage

drinking. Gulino asked the defendant if she was ‘‘Tasha

Moore,’’ and the defendant responded: ‘‘I’m Teri Buhl,

not Tasha Moore.’’ Gulino later turned his investigation

over to Sergeant Carol Ogrinc. Ogrinc then served on

Facebook an ex parte order for the disclosure of the

internet protocol (IP) address associated with the profile of Tasha Moore. Ogrinc also served on Cablevision

an ex parte order for the name of the person associated

with the IP address she had been investigating, and

Cablevision reported thatthis IP address was connected

to the defendant.4

On October 21, 2010, the defendant was arrested and

charged with harassment in the second degree, breach
of the peace in the second degree, and interfering with

an officer. After a trial to the court, she was convicted

of the harassment and breach of the peace charges.

Following the denial of her postverdict motions, the

court sentenced the defendant on the harassment conviction to three months incarceration, execution suspended after fifteen days, followed by one year of

probation, and on the breach of peace conviction to

six months incarceration, execution suspended after

fifteen days, followed by one year of probation, such

sentences to run consecutively, for a total effective

sentence of nine months incarceration, execution suspended after thirty days, followed by one year of probation, the maximum amount of probation allowed. This

appeal followed. Additional facts will be set forth as

necessary.

I

The defendant claims that ‘‘[t]he trial court erred in

finding [her] guilty of harassment . . . where the evidence at trial was not sufficient for [a] 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.’’

The state argues that, on the basis of the evidence at

trial, the court ‘‘reasonably concluded that the evidence

established all of the elements of harassment in the

second degree, including identification . . . [and that]

the trial court’s finding of guilt did not violate the first

amendment because it was based on the defendant’s

physical action and not on the content of her communication, and because the ‘journalist privilege’ does not

exist in this context.’’ We conclude that the evidence

was sufficient to sustain the defendant’s conviction of

harassment in the second degree.

The standard of review for a sufficiency of the evidence claim employs a two part test. ‘‘First, we construe

the evidence in the light most favorable to sustaining

the verdict. Second, we determine whether upon the

facts so construed and the inferences reasonably drawn

therefrom the [trial judge] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court

cannot substitute its own judgment for that of the [trial

judge] if there is sufficient evidence to support the . . .

verdict.’’ (Internal quotation marks omitted.) State v.

Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

‘‘While . . . every element [must be] proven beyond

a reasonable doubt in order to find the defendant guilty

of the charged offense[s], each of the basic and inferred

facts underlying those conclusions need not be proved

beyond a reasonable doubt.’’ (Internal quotation marks

omitted.) State v. Newsome, 238 Conn. 588, 617, 682

A.2d 972 (1996). ‘‘[I]n determining whetherthe evidence

supports a particular inference, we ask whether that

inference is so unreasonable as to be unjustifiable. . . .
[A]n inference need not be compelled by the evidence;

rather, the evidence need only be reasonably susceptible of such an inference.’’ (Internal quotation marks

omitted.) State v. Niemeyer, supra, 258 Conn. 519. ‘‘Furthermore, [i]n [our] process ofreview, it does not diminish the probative force of the evidence that it consists,

in whole or in part, of evidence that is circumstantial

rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes

guilt in a case involving substantial circumstantial evidence. . . . [Finally] in responding to a claim of evidentiary insufficiency . . . we view all of the evidence,

and the reasonable inferences drawable therefrom, in

favor of the [trier’s finding of guilty].’’ (Internal quotation marks omitted.) State v. White, 139 Conn. App.

430, 434, 55 A.3d 818 (2012), cert. denied, 307 Conn.

953, 58 A.3d 975 (2013).

General Statutes § 53a-183 (a) provides in relevant

part: ‘‘A person is guilty of harassment in the second

degree when . . . (2) with intent to harass, annoy or

alarm another person, he communicates with a person

by . . . mail, by electronically transmitting a facsimile

. . . by computer network, as defined in section 53a250, or by any other form of written communication,

in a manner likely to cause annoyance or alarm . . . .’’

The state charged the defendant with violating § 53a183 (a) (2) via long form information as follows: ‘‘The

State of Connecticut alleges that on or about June 23,

2010 . . . the defendant . . . did harass, annoy or

alarm other persons, to wit: [M] and [P] by communicating to [P] by way of sending mail via overnight delivery

to his home . . . the contents of which did cause

annoyance or alarm. Furthermore, [the defendant] did

harass, annoy, or alarm [M] by communication via electronically transmitting a facsimile through a connection

with a telephone network/computer network and any

other form of written communication, on or about June

23, 2010, at approximately 5:30 p.m., via Facebook, to

wit: notes and journal pages . . . .’’

The state charged the defendant with three separate

acts of harassment combined in one count. Under our

case law, ‘‘[w]here a charging document alleges, in the

conjunctive, that an offense has been committed in

more than one way, a guilty finding may stand if the

evidence supports a conviction based upon any one of

the statutory alternatives.’’ State v. Wohler, 231 Conn.

411, 415, 650 A.2d 168 (1994).5 Accordingly, in order to

establish that the defendant was guilty of a violation

of § 53a-183 (a) (2) as charged, the state was required

to prove that the defendant: (1) on or about June 23,

2010, intended to harass, annoy or alarm M by sending

mail via overnight delivery to the home of P, and this

manner of communication was likely to cause annoyance or alarm to M; or (2) on or about June 23, 2010,

intended to harass, annoy or alarm P by sending mail
via overnight delivery to his home, and this manner of

communication was likely to cause annoyance or alarm

to P; or (3) on or about June 23, 2010, at approximately

5:30 p.m., intended to harass, annoy or alarm M by

communicating, via Facebook, notes and diary pages,

and that this manner of communication was likely to

cause annoyance or alarm to M.6

On appeal, the defendant’s arguments are somewhat

diffuse, with very little legal analysis as to the effect of

many of the alleged errors made by the court. In her

statement of issues as to the harassment conviction,

she asserts that the court had insufficient evidence to

find her guilty of harassment in the second degree without improperly shifting the burden of proof onto her

and improperly impinging on her constitutional rights.

In her appellate brief, as to the state’s allegations of

harassment in the second degree by her communicating

via Facebook, she argues that (1) the state failed to

provide an expert on the intricacies of Facebook postings and privacy settings despite the court’s clear statements that it was not familiar with Facebook, (2) there

was no evidence thatthe Facebook postings were calculated to reach M,(3) M’s testimony about how Facebook

worked should not have been admitted or considered

reliable by the court, (4) there was no link established

between the defendant and the Moore Facebook profile,

(5) the court drew an improper inference from the

defendant’s failure to produce evidence of who else

could have created the Moore Facebook profile,

evinced by the court’s question to defense counsel during closing argument: ‘‘[W]hat evidence is there that

anyone else had access to . . . those [diary] pages

such that they would have been in a position to post

them,’’ (6) the court improperly shifted the burden to

the defendant to prove who created the Moore Facebook profile, (7) this alleged improper burden shifting

violated the due process clause of the fourteenth

amendment, and (8) this burden shifting violated her

first amendment rights as a journalist not to give up

her source.

Regarding the allegations of her committing harassment in the second degree by mailing the anonymous

letter, the defendant argues that (1) she sent the letter

after P already knew about the Facebook postings so

the content of the letter could not have surprised or

shocked him, (2) there was no evidence that the letter

was sent with an intent to harass P because he already

was familiar with the content of the letter, (3) there

was no evidence that the defendant had any motive to

harass or annoy P, (4) the letter was not addressed to

M, (5) there was no evidence that M ever saw the letter,

(6) there was no evidence that the letter was sent to P

with the intent to harass M, and (7) the state improperly

argued that the content of the letter would alarm any

father, therefore impinging on the defendant’s right to

free speech under the first amendment by focusing on
the content of the letter rather than on the mailing of

the letter.

First, we conclude that the defendant has not adequately briefed a constitutional claim regarding free

speech or a journalistic privilege. Because the defendant has failed to provide any legal analysis in support

of such claims, we decline to review them. See State

v. Orr, 291 Conn. 642, 645 n.4, 969 A.2d 750 (2009),

quoting State v. T.R.D., 286 Conn. 191, 213–14 n.18, 942

A.2d 1000 (2008) (‘‘We repeatedly have stated that [w]e

are notrequired to review issues that have been improperly presented to this court through an inadequate brief.

. . . Analysis, rather than mere abstract assertion, is

required in orderto avoid abandoning an issue by failure

to brief the issue properly. . . . Where a claim is

asserted . . . but thereafter receives only cursory

attention in the brief without substantive discussion or

citation of authorities, it is deemed to be abandoned.’’

[Internal quotation marks omitted.]).

We next conclude that the defendant has set forth

an insufficiency of the evidence claim regarding her

conviction of harassment in the second degree. Accordingly, we will consider whether the court had before it

sufficient evidence to convict the defendant of a violation of § 53a-183 (a) (2) under any of the three ways

the defendant was alleged to have committed this crime.

Harassment in the second degree under § 53a-183 (a)

(2), like § 53a-183 (a) (3), is a specific intent crime that

requires the state to prove, beyond a reasonable doubt,

the defendant’s intent to harass, annoy or alarm another

person. See State v. Moulton, 310 Conn. 337, 355–56,

78 A.3d 55 (2013) (§ 53a-183 [a] [2] and [3] employ

identical language and are identical in scope except

subdivision [2] involves use of mail while subdivision

[3] involves use of telephone); State v. Orr, supra, 291

Conn. 668 (§ 53a-183 [a] [3] is specific intent crime).

‘‘The legislature decreed in § 53a-183 (a) (2) that a

person is guilty of harassment in the second degree

when with the requisite intent to harass ‘another person,

he communicates with a person’ in a prohibited manner.

. . . These words ‘are to be understood according to

the commonly approved usage of the language’ . . .

and ‘must be given their plain and ordinary meaning and

be interpreted in their natural and usual sense unless the

context indicates that a different meaning was

intended.’ . . . The language of § 53a-183 (a) (2)

plainly states that for a defendant to violate that statute,

he must first have the intent to harass, annoy or alarm

‘another’ person, i.e., the intended victim, and, second,

he must communicate with ‘a’ person, possibly a third

party, in a manner likely to achieve his ends. Thus, a

defendant is prohibited from intending to harass

‘another’ person and then acting on his intent by communicating with ‘a’ person. The statute by its terms

does not require direct communication with the person
who is the target of the harassment . . . .’’ (Citations

omitted; emphasis omitted.) State v. Snyder, 40 Conn.

App. 544, 551–52, 672 A.2d 535, cert. denied, 237 Conn.

921, 676 A.2d 1375 (1996), on appeal after remand, 49

Conn. App. 617, 717 A.2d 240 (1998).

In the present case, the defendant was alleged, inter

alia, to have harassed M and P by sending an overnight

letter to P that contained copies of very private and

personal diary pages that M had stored in the back of

her nightstand drawer in her bedroom. The identity of

the defendant as the person who mailed the materials

is not in question. The defendant admitted to sending

these materials via overnight mail. On the issue of the

defendant’s intent in mailing these materials, our law

instructs that because ‘‘we cannot know with certainty

the defendant’s intent, we mustinferit from the reaction

of the victim[s] and the circumstances of [the mailing].’’

State v. Marsala, 43 Conn. App. 527, 537, 684 A.2d 1199

(1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

The defendant admitted to sending this mailing anonymously. She had alternative methods of delivering the

materials to P other than the disguised delivery she

selected. For example, she could have handed or mailed

the materials to P with an explanation of how she had

obtained them and why she wanted him to have them,

but she waited several days before telling P that it was

she who had mailed the materials to him instead of

letting him know contemporaneously with the delivery.

The defendant’s hiding of her identity as the sender of

the materials for a number of days is circumstantial

evidence of her intent to harass, annoy and alarm M

and P. The evidence also demonstrates that the defendant’s act of sending the anonymous letter disguising

her identity by having it purport to be sent from one

of M’s classmates with copies of private, personal diary

pages that had been kept by M in a nightstand in her

bedroom, caused both M and P to wonder how and

be alarmed that someone could have obtained these

materials from M’s bedroom without their knowledge

or permission.

M testified that although the defendant’s relationship

with P seemed good, she thought that the defendant

wanted to make her life miserable, that the defendant

tried to make her uncomfortable, and that the relationship between her and the defendant was tense. She also

testified that she had written the diary notes that are

pertinent here while she was on vacation, and that she

had stuffed them in the back of her nightstand drawer

after returning from vacation. She stated that the diary

pages that were in evidence had been mailed to her

home in an overnight envelope, and that they were

copies of the originals, which she still had in her possession. She further testified that she was alarmed that

someone had been in her house and gone through her

nightstand drawer.
P testified that he thought his relationship with the

defendant was good, and that she had access to his

home, even residing with him in 2010. He further testified that on June 24, 2010, he received an overnight

envelope containing copies of his daughter’s personal

diary pages, together with an anonymous letter, and

that he was shocked and surprised by the materials.

He stated that he was ‘‘outraged that [copies of the

diary pages] were in someone else’s hands because they

were very personal notes,’’ and that he felt violated

knowing that some anonymous person had these materials. P stated that he discussed this matter with the

defendant at dinner on the Friday evening following his

receipt of the materials, that he explained how upset

he was about them, and that the defendant had no

reaction. It was not until the following Sunday that the

defendant told P that she had sent the materials, which,

she claimed, she had received from a source, but that

she could not reveal the name of that source. Clearly

both P and M were alarmed by this mailing.

On the basis of these surrounding circumstances and

the reaction of the victims in this case, we conclude

that the evidence was sufficient for the court to have

found, beyond a reasonable doubt, that the defendant

intended to harass, annoy or alarm M and P by sending

these materials anonymously, via overnight delivery,

and that this caused annoyance and alarm to both

victims.

II

The defendant also claims that there was insufficient

evidence to sustain her conviction of breach of the

peace in the second degree. She argues that there was

insufficient proof that the posted material was public,

and that the state needed to present an expert witness

on the issue of Facebook privacy settings and policies.7

We conclude that the evidence was insufficient to establish that the Facebook postings were public.

As stated in part I of this opinion, the standard of

review for a sufficiency of the evidence claim employs

a two part test. ‘‘First, we construe the evidence in the

light most favorable to sustaining the verdict. Second,

we determine whether upon the facts so construed and

the inferences reasonably drawn therefrom the [trial

judge] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Niemeyer, supra, 258 Conn. 517.

Section 53a-181 (a) provides in relevant part: ‘‘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 . . . (4) publicly exhibits, distributes, posts up

or advertises any offensive, indecent or abusive matter

concerning any person . . . . For purposes of this sec-
tion, ‘public place’ means any area that is used or held

out for use by the public whether owned or operated

by public or private interests.’’ In this case, the state

specifically charged the defendant as follows: ‘‘The

State of Connecticut alleges that on or about June 23,

2010 . . . the defendant . . . did with intent to cause

inconvenience, annoyance or alarm, publicly exhibit,

distribute, post up or advertise offensive, indecent or

abusive matter concerning [M] via Facebook, in violation of . . . § 53a-181 (a) (4).’’

The defendant argues that there was insufficient evidence that the Facebook postings on Moore’s page were

publicly exhibited and that this insufficiency was compounded by the lack of experttestimony of the workings

and privacy settings of Facebook. We agree.

During cross-examination, M testified regarding

Facebook as follows:

‘‘Q. So, I guess the point is, you were never friends

with Tasha Moore?

‘‘A. Yes, but her page was unprivate.

‘‘Q. Okay, you never became friends with Tasha

Moore?

‘‘A. You could see it. No, but I have gone on through

[my friend’s] Facebook and had seen it through his page.

‘‘Q. Thank you. You went on through your friend’s

Facebook page to see it?

‘‘A. Yes. Then could see everything through mine.

‘‘Q. I understand it.But, you weren’t invited in and you

didn’t see it from anyone else’s page but [your friend’s]?

‘‘A. Right, everybody else had been invited except me.

‘‘Q. Okay, everybody else, all eight other people or

all seven or eight people?

‘‘A. Multiple people had been invited, [but] not everybody accepted.

‘‘Q. All right. So, it’s a private invitation. You have to

be invited in?

‘‘A. Sure.’’

M also testified, however, that she was able to view

Moore’s Facebook page through her own page because

Moore’s page was ‘‘unprivate’’ and ‘‘seemed to be public.’’ The state argues that this testimony is sufficient

to establish that Moore’s Facebook page was public. It

also argued before the trial court that even if Moore’s

Facebook profile was private, at least eight other people

saw or knew of Moore’s Facebook page and that, therefore, the postings and the subject matter were public

for purposes of § 53a-181 (a) (4). We disagree.

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered.’’ (Internal quotation

marks omitted.) State v. Moulton, supra, 310 Conn. 357.

Section 53a-181 (a) (4) requires that the defendant

‘‘publicly exhibits, distributes, posts up or advertises

any offensive, indecent or abusive matter . . . .’’

(Emphasis added.) The statute then defines the term

‘‘public place’’ to mean ‘‘any area that is used or held

out for use by the public whether owned or operated

by public or private interests.’’ General Statutes § 53a181 (a). Therefore, we conclude that under the plain

language of the statute, the state was required to prove

thatthe matter concerning M was exhibited, distributed,

posted or advertised in a public place, or, more precisely, in an area used or held out for use by the public.8

If the evidence demonstrated that approximately eight

people were invited to view the page (and some did

not accept the invitation), and that Moore’s Facebook

page was not available for noninvited viewing, we

would conclude that the page was not held out for use

by the public, and, therefore, Moore’s Facebook page

was not publicly exhibited, posted or advertised. The

question now becomes whether there was sufficient

evidence for the court reasonably to have concluded

that, under the evidence presented, Moore’s Facebook

page was held out for use by the public.

At the start of M’s testimony, the court specifically

stated: ‘‘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.’’ A review of

M’s testimony reveals that she commented on several

aspects of Facebook, including postings, tagging, public

pages, unprivate pages, private pages, invitations, notifications, accepting requests, and privacy settings. When

defense counsel attempted to question her on whether

other Facebook users had to be invited to view the

pages of ‘‘minors’’ because of Facebook privacy rules,

the court stated that it would allow counsel to ask M

questions related to ‘‘her understanding tied to the time

she’s viewing Facebook pages,’’ but that it would ‘‘not

[allow] questions as to the Facebook policy.’’

The defendant argues that this demonstrates the need

for a Facebook expert to testify about its policy regarding privacy settings and the meaning of all of the rele-
vant specific Facebook terminology. She also argues

that M’s testimony was inconsistent as to whether

Moore’s privacy settings were public, private, or something in between, and that this, combined with the

court’s lack of familiarity with Facebook, clearly demonstrates that the state needed to present an expert to

meet its burden of proof that she publicly displayed

the relevant postings. She contends that the transcript

‘‘reflect[s] an unfamiliar court attempting to determine

the nature and function[s] of Facebook privacy settings,

limited to [M’s] ‘impressions’ alone,’’ and that M ‘‘was

neither qualified nor consistent on the subject matter

of private/public settings in a Facebook universe.’’ We

agree that the state did not present sufficient evidence

to prove beyond a reasonable doubt that Moore’s Facebook page was public.

‘‘Although expert testimony is permitted in a great

many instances, it is required only if the question

involved goes beyond the field of ordinary knowledge

and experience of judges and jurors.’’ C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.5.4, pp.

410–11. ‘‘The trier of fact need not close its eyes to

matters of common knowledge solely because the evidence includes no expert testimony on those matters.’’

(Internal quotation marks omitted.) State v. Padua, 273

Conn. 138, 149, 869 A.2d 192 (2005).

In this case, the trial court was very frank with counsel in stating that it had no familiarity with Facebook,

and it asked several questions of counsel and M during

M’s testimony. The court also clearly told counsel that

it would not allow M, the only witness to testify about

Facebook settings, to testify about Facebook privacy

policy. Our Supreme Court recently explained in State

v. Altajir, 303 Conn. 304, 310 n.2, 33 A.3d 193 (2012),

that Facebook’s ‘‘general infrastructure, including [its]

privacy settings, is highly dynamic and in many cases

may be accurately assessed only with reference to a

limited time period.’’ ‘‘Due 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-by-case basis, with due

attention to the nature of the site at the time relevant to

the case.’’ Id., 307 n.1. This cautionary language underscores the need for testimony or other evidence from

a person with suitable knowledge, experience or other

relevant qualification relating to the operation of Facebook’s privacy settings applicable to the issues in

this case.9

In the present case, therefore, we are persuaded that

the state needed additional testimony from a person

qualified to provide evidence to establish that the Facebook page created in the name of Tasha Moore was a

public page on June 23, 2010, or on other dates when
it was accessed by M or her friends. The state presented

only one witness, M, to testify regarding the public or

private nature of Moore’s Facebook profile, without

demonstrating that she was qualified to provide any

testimony beyond how she accessed the Facebook

page, and that testimony was contradictory. The state

did not establish that M had sufficient knowledge of

Facebook privacy settings and policies to enable her

to provide testimony about them. The court, therefore,

specifically prohibited M from testifying as to Facebook

policy. Additionally, the court at the beginning of M’s

testimony notified the parties that it lacked familiarity

with Facebook and would need assistance with respect

to Facebook issues. Accordingly, we conclude that the

state failed to meet its burden of proving beyond a

reasonable doubt that Moore’s Facebook page was

‘‘publicly exhibit[ed], distribut[ed], post[ed] up or

advertis[ed]’’; see General Statutes § 53a-181 (a) (4);

and, therefore, we further conclude that the evidence

was insufficient to support the defendant’s conviction

of breach of the peace in the second degree.

The judgment is reversed only as to the conviction

of breach of the peace in the second degree and the

case is remanded with direction to render judgment of

acquittal on that charge; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The court found the defendant not guilty of interfering with an officer

in violation of General Statutes § 53a-167a.

2 We refer to the victims by their first initials to protect their privacy

interests.

3

‘‘Facebook is a social network website.’’ State v. Damone, 148 Conn.

App. 137, 151 n.3, 83 A.3d 1227, cert. denied, 311 Conn. 936, 88 A.3d 550

(2014). ‘‘ ‘Each [Facebook] user maintains a ‘‘profile,’’ which is a webpage

containing basic information such as the individual’s year of graduation and

home town, as well as personal information, such as his or her name and

whether he or she is single or in a relationship (i.e., ‘‘relationship status’’).

Users may inform others about what they are doing by changing the ‘‘current

status’’ message that appears at the top of the profile. . . .

‘‘ ‘Facebook allows users to designate ‘‘friends.’’ An individual who is

invited to be a member’s Facebook friend may either accept or reject the

offer, thus providing individual control over one’s list of friends. The user

can control how much information to post and who can view this information

by editing their privacy settings. Specific groups of people (a network or

friends) may be granted limited access to specific parts of the profile.

‘‘ ‘Facebook members can upload digital pictures into virtual photo

albums. A user can be ‘‘tagged’’ in these pictures so that his or her name

appears in the caption as a link to his or her profile. If the individual does

not want to be associated with the picture, he or she can ‘‘untag’’ it, thereby

removing the name and the link (though this does not remove the picture).

Members are able to post comments on photos, which appear as messages

below the picture.’ T. Pempek et al., ‘College Students’ Social Networking

Experiences on Facebook,’ 30 J. Applied Developmental Psychol. 227, 230

(2009).’’ State v. Altajir, 303 Conn. 304, 306–307 n.1, 33 A.3d 193 (2012).

‘‘[C]ustomizable privacy settings allow individual Facebook users to exercise considerable control over the availability of information associated

with their profiles. Moreover, the social network’s general infrastructure,

including these privacy settings, is highly dynamic and in many cases may

be accurately assessed only with reference to a limited time period.’’ Id.,

310 n.2.

‘‘Due 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-by-case basis,

with due attention to the nature of the site at the time relevant to the

case. Up-to-date information regarding Facebook may be found in the ‘help’

section of the Facebook website, http://www.facebook.com/help/?page=

260315770650470. Further explanations of Facebook related terminology

may be found in the website’s glossary, http://www.facebook.com/help/glossary.’’ Id., 306 n.1.

4 When the state attempted to link directly the IP address used to establish

the Facebook profile of Tasha Moore with the IP address assigned to the

defendant by Cablevision, defense counsel objected on hearsay grounds,

and the state withdrew its line of questioning. The court specifically found

that there was no direct link established between the defendant’s Cablevision

account and Tasha Moore’s Facebook profile. No one from Facebook was

called to testify.

5 We note that the defendant made no claim before the trial court and

that he makes no claim on appeal that the information improperly was

duplicitous. See State v. Browne, 84 Conn App. 351, 380–83, 854 A.2d 13

(discussing duplicity and recognizing that ‘‘[a] single count is not duplicitous

merely because it contains several allegations that could have been stated

as separate offenses’’ [internal quotation marks omitted]), cert. denied, 271

Conn. 931, 859 A.2d 930 (2004).

6 The third allegation of harassment does not specify to whom the Facebook communication was directed in an effort to annoy or alarm M. The

statute specifically requires that the defendant, ‘‘with intent to harass, annoy

or alarm another person,’’ in this case M, ‘‘communicates with a person .

. . .’’ (Emphasis added.) General Statutes § 53a-183 (a) (2); see also State

v. Snyder, 40 Conn. App. 544, 552, 672 A.2d 535 (‘‘§ 53a-183 [a] [2] plainly

states that for a defendant to violate that statute, he must first have the

intent to harass, annoy or alarm ‘another’ person, i.e., the intended victim,

and, second, he must communicate with ‘a’ person, possibly a third party,

in a manner likely to achieve his ends’’), cert. denied, 237 Conn. 921, 676

A.2d 1375 (1996), on appeal after remand, 49 Conn. App. 617, 717 A.2d 240

(1998). There is no allegation in the information regarding to whom the

defendant is alleged to have communicated.

7 The defendant also claims that there was insufficient evidence to sustain

her conviction of breach of the peace in the second degree because there

was no proof that she acted as Tasha Moore on Facebook, there was no

proof that the postings affected anyone other than M and P, and there was

no proof that the statements were likely to produce violence or acts of

public disorder. She also argues that the court impermissibly shifted the

burden onto her to prove that she was not the person who had posted

materials about M on a Facebook profile created in the name of Tasha

Moore, and that this impinged on her constitutional rights as a journalist

to keep her sources confidential. Because we conclude that the state failed

to meet its burden of proving that the postings were public, we need not

discuss these other arguments.

8 On appeal, the state does not argue against such a definition. In its

appellate brief, citing to State v. Battista, 10 Conn. App. 499, 501–502, 523

A.2d 944 (1987), the state argues that the Appellate Court has ‘‘considered the

forum of the behavior at issue and whether the defendant could reasonably

expect the public to be present during the behavior, rather than the number

of people actually present.’’ In Battista, we determined that a man who

stood on the street in front of the home of his former in-laws and repeatedly

shouted disparaging things about his former wife, acted in a public place.

See State v. Battista, supra, 502. We were not concerned with the number

of people present, but with the area being available to the public. See id.;

see also State v. Bradley, 124 Conn. App. 197, 203, 4 A.3d 347, cert. denied,

295 Conn. 917, 990 A.2d 867 (2010) (president’s office at university ‘‘public

place’’ because he had open door policy to all students and encouraged

visits).

9 Such testimony need not necessarily be in the form of expert testimony.