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State v. Buhl

Supreme Court of Connecticut

June 21, 2016

STATE OF CONNECTICUT
v.
TERI A. BUHL

          Argued January 19, 2016

          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 appellant in Docket No. SC 19412 and the appellee in Docket No. SC 19413 (state).

          Stephan E. Seeger, with whom, on the brief, was Igor Kuperman, for the appellee in Docket No. SC 19412 and the appellant in Docket No. SC 19413 (defendant).

          Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ROBINSON, J.

         These two certified appeals are brought, respectively, by the state and the defendant, Teri A. Buhl, from the judgment of the Appellate Court, which reversed the defendant’s conviction for breach of the peace in the second degree and affirmed her conviction for harassment in the second degree. State v. Buhl, 152 Conn.App. 140, 161, 100 A.3d 6 (2014). In its appeal, the state claims that the Appellate Court improperly concluded that there was insufficient evidence to support the defendant’s breach of the peace conviction. In her appeal, the defendant claims that the Appellate Court improperly: (1) concluded that there was sufficient evidence to support her harassment conviction; and (2) declined to consider her constitutional claims on the ground that they were inadequately briefed. We affirm in part and reverse in part the judgment of the Appellate Court. Specifically, we conclude that the Appellate Court: (1) improperly determined that there was insufficient evidence to support the defendant’s breach of the peace conviction; (2) properly concluded that there was sufficient evidence to support her harassment conviction; and (3) did not abuse its discretion in determining that her constitutional claims were inadequately briefed.

         The record reveals the following facts and procedural history. In June, 2010, the defendant, a journalist, was involved in a romantic relationship with P and working on an investigative story about underage drinking.[1] The defendant had been dating P for two years, and she frequently visited P’s home, often several times per week. P was divorced, and M, his seventeen year old daughter from his previous marriage, resided with him for one half of each week. M testified that her relationship with the defendant was ‘‘tense’’ and ‘‘uncomfortable.’’ M kept handwritten diary entries in a drawer of a nightstand in her bedroom at P’s home.

         On June 23, 2010, the night of M’s high school graduation, M received a telephone call from a friend, B, who stated that he had seen a ‘‘fake’’ profile on Facebook, a social networking website, with posts about her.[2]Because B had received and accepted a friend request from the person who had created the fictitious account, M logged into Facebook through B’s account to view the posts. M located the profile, which was created under the name ‘‘Tasha Moore.’’ The profile contained a post that read: ‘‘[M] gets so drunk at parties that boys know she is an easy hook up. In April . . . she gave [O] a blow job [at a party] and then threw up. [O] calls her that deep throat JAP.[3] [M] told her friends she thought giving the best [blow job] would help make [O] her boyfriend. You wonder why some [of the] girls [at M’s high school] never learn how to behave around boys.’’ (Footnote added.) That post also contained a photograph of M. A second post contained six photographs of diary entries from M’s nightstand, which the author of the post called M’s ‘‘[c]onfession [l]etter.’’ The diary entries described M drinking alcohol at a party and performing oral sex on a boy. Although ‘‘Tasha Moore’’ sent friend requests to seven or eight of M’s friends from school, several of whom accepted the requests, she did not send a friend request to M herself. M was too upset to go out that night to celebrate her graduation. She continued to receive telephone calls from ‘‘most people’’ she knew from school that night asking about the posts.

         On the morning of June 24, 2010, M sent a message to ‘‘Tasha Moore’’ via Facebook asking her to take down the posts and warning her that, if they were not removed, she would go to the police. When the posts remained on Facebook, M brought copies of them to the police station and explained what had happened to Officer Daniel Gulino. M then told her parents what had happened.

         Later that afternoon, P received an anonymous envelope, sent by overnight mail, which contained copies of M’s diary entries-the same ones that had been posted on Facebook.[4] A typed, unsigned cover letter read as follows: ‘‘[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 wanted [O] to be her boyfriend but he hardly talked to her after that night. She only showed a few of us these letters . . . . Please don’t tell her one of her friends wrote you but my [m]om said it is best if you read them.’’ P and M returned to the police station with these materials.

         The next night, on June 25, 2010, P had dinner with the defendant and told her about these events. He explained how ‘‘shocked’’ he was that such a ‘‘crazy thing’’ was going on, and stated that a police investigation was pending. P ‘‘got no reaction’’ from the defendant. Two days later, however, the defendant told P that she had sent the anonymous mailing. She explained that a friend of M’s had contacted her because she was concerned about M, and the friend had produced copies of M’s diary entries. The defendant claimed that she convinced that friend to turn the copies over to her along with a cover letter explaining the circumstances. When P asked for the friend’s name, the defendant refused to reveal that information, stating that she had promised to keep it confidential.

         P informed Officer Gulino of the identity of the anonymous mailer. At this point, Officer Gulino already had concluded that the person who took M’s diary entries was someone P or M knew, because the doors to P’s home were kept locked and there were no signs of forced entry. When Officer Gulino spoke with the defendant over the telephone, she told him that she was doing an investigative story on underage drinking in the area, but ‘‘adamantly denied’’ posting M’s diary entries on Facebook. When asked if she was ‘‘Tasha Moore, ’’ the defendant responded, ‘‘I’m Teri Buhl, not Tasha Moore.’’ Officer Gulino then turned the investigation over to Sergeant Carol Ogrinc.

         Sergeant Ogrinc served an ex parte order on Facebook for the disclosure of the Internet Protocol address (IP address) associated with the ‘‘Tasha Moore’’ profile. After receiving this information, Sergeant Ogrinc then served an ex parte order on Cablevision, an Internet service provider, seeking the disclosure of the person associated with the IP address she was investigating. Cablevision reported that person was the defendant. See footnote 19 of this opinion.

         The defendant was subsequently arrested and charged, relevant to these appeals, with breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (4), and harassment in the second degree in violation of General Statutes § 53a-183 (a) (2).[5] The state alleged that the defendant committed harassment by posting M’s diary entries on Facebook or sending the anonymous mailing to P. The state based the breach of the peace charge on the Facebook posts only. After a court trial, the court convicted the defendant of both offenses, and sentenced her to a total effective sentence of nine months incarceration, execution suspended after thirty days, followed by one year of probation.[6]

         The defendant appealed from both convictions to the Appellate Court, claiming that there was insufficient evidence to support her breach of the peace conviction because the state had not proven that: (1) the Facebook posts were ‘‘publicly exhibit[ed]’’; (2) she posted M’s diary entries on Facebook; or (3) she intended to ‘‘inconvenience, [annoy] or alarm’’ M by posting the diary entries on Facebook. General Statutes § 53a-181 (a). The defendant further contended that there was insufficient evidence to support her harassment conviction, based on the anonymous mailing, because the state had not proven that she intended to ‘‘harass, annoy or alarm’’ P or M by sending the mailing.[7] General Statutes § 53a-183 (a) (2). Embedded within these sufficiency arguments, the defendant also asserted several constitutional claims based on the first amendment to the United States constitution and the due process clause set forth in the fourteenth amendment to the United States constitution.

         The Appellate Court determined that the defendant had properly set forth sufficiency arguments with respect to both convictions, but had not adequately briefed her constitutional claims. State v. Buhl, supra, 152 Conn.App. 151. The Appellate Court concluded that there was insufficient evidence to support her breach of the peace conviction because the state had not proven that the Facebook posts were publicly exhibited. Id., 155. The Appellate Court did not address the defendant’s arguments with respect to the other elements of the crime. Id., 155 n.7. In reviewing the defendant’s harassment conviction, the Appellate Court concluded that sufficient evidence demonstrated her intent to ‘‘harass, annoy or alarm’’ P or M by sending the anonymous mailing. Id., 154. The Appellate Court, therefore, reversed the defendant’s breach of the peace conviction and affirmed her harassment conviction. Id., 161. These certified appeals followed. Additional facts and procedural history will be set forth as necessary.

         I

         The state claims in its appeal that the Appellate Court improperly concluded that there was insufficient evidence to prove that the Facebook posts were publicly exhibited with respect to defendant’s breach of the peace conviction. In response, the defendant argues to the contrary. We agree with the state. We further conclude that the breach of the peace conviction must be reinstated because the trial court reasonably could have found that the state had met its burden of proving the other elements of the crime at trial, namely, that: (1) the defendant was the person who posted M’s diary entries on Facebook; and (2) the defendant intended to ‘‘inconvenience, [annoy] or alarm’’ M by posting her diary entries on Facebook. General Statutes § 53a-181 (a). The state preemptively raises these claims in the event that we agree that there was sufficient evidence to prove that the Facebook posts were publicly exhibited.[8]

         The parties do not dispute that our well known standard of review for sufficiency of the evidence claims applies to these appeals, both as to the construction to be given the evidence at trial and the inferences that can be drawn from that evidence. See State v. Davis, 283 Conn. 280, 329–30, 929 A.2d 278 (2007); see also State v. Drupals, 306 Conn. 149, 157, 49 A.3d 962 (2012).

         A

         The state first claims that the Appellate Court improperly concluded that there was insufficient evidence demonstrating that the Facebook posts were ‘‘publicly’’ exhibited, as required by § 53a-181 (a) (4).[9] Specifically, the state argues that the Appellate Court improperly determined that expert testimony was required to prove the public nature of the posts and, in doing so, relied too heavily on a comment by the trial court expressing its unfamiliarity with Facebook, and failed to give proper deference to the trial court’s factual findings and credibility determinations. The defendant argues in response that the Appellate Court properly determined that expert testimony was required to prove the public nature of the posts, given the trial court’s lack of knowledge of Facebook, and properly determined that M’s testimony on this point was contradictory. We agree with the state, and conclude that there was sufficient evidence of a public exhibition of the Facebook posts at trial.

         The record reveals the following additional facts and procedural history. The state’s evidence regarding the public nature of the Facebook posts came primarily from M’s testimony. Toward the beginning of her testimony, when the issue of Facebook arose, the trial court 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.’’ (Internal quotation marks omitted.) Id., 158. M subsequently explained how to ‘‘friend’’ someone on Facebook-by sending them a friend ‘‘request’’ or invitation to become friends-and how, if the person accepts the request, the two users become Facebook ‘‘friends.’’ M further explained that a user’s profile may be accessible to the public, or only to his or her network of ‘‘friends, ’’ depending on the user’s privacy settings. See footnote 2 of this opinion. Specifically, with respect to the ‘‘Tasha Moore’’ profile, M testified that she initially viewed the profile through the account of B, who had become friends with ‘‘Tasha Moore, ’’ but later viewed the exact same content through her own profile, even though she had never become friends with ‘‘Tasha Moore.’’ Because M could access the posts without becoming friends with ‘‘Tasha Moore, ’’ M stated her belief that the profile was ‘‘unprivate’’ and, thus, any member of the public could view the profile and the posts about M.

         The Appellate Court concluded that this evidence was insufficient to establish that the Facebook posts were publicly exhibited[10] for two primary reasons: (1) expert testimony[11] was required to establish the public nature of the posts, given the trial court’s apparent unfamiliarity with Facebook; and (2) M’s testimony on this point was contradictory. State v. Buhl, supra, 152 Conn.App. 156–61. We find these rationales unavailing for the reasons explained subsequently in this opinion.

         1

         The Appellate Court first stated that expert testimony was required to demonstrate that the posts were publicly exhibited, in light of the trial court’s inexperience with Facebook. Id., 160–61. Expert opinions ‘‘concerning scientific, technical or other specialized knowledge’’ may be necessary to ‘‘assist the trier of fact in understanding the evidence or in determining a fact in issue.’’ Conn. Code Evid. § 7-2. ‘‘Although expert testimony may be helpful in many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact. . . . 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. Smith, 273 Conn. 204, 211, 869 A.2d 171 (2005). ‘‘Whether expert testimony is required in a particular case is determined on a case-by-case basis and its necessity is dependent on whether the issues are of sufficient complexity to warrant the use of the testimony as assistance to the . . . court.’’ Johnson v. Commissioner of Correction, 34 Conn.App. 153, 158, 640 A.2d 1007, cert. denied, 229 Conn. 919, 644 A.2d 914 (1994).

         Regardless of any comments by the trial court, the elementary Facebook concepts in the present case did not go beyond ‘‘the field of ordinary knowledge and experience’’ of an objective trier of fact. State v. Smith, supra, 273 Conn. 211. The prevalence of Facebook use in American society cannot be reasonably questioned. Indeed, a 2015 survey performed by the Pew Research Center reveals that 72 percent of American adults that use the Internet also use Facebook. Pew Research Center, ‘‘The Demographics of Social Media Users, ’’ (2015) available at http://www.pewinternet.org/2015/08/19/the-demographics-of-social-media-users (last visited May 25, 2016); see also Vincent v. Story County, United States District Court, Docket No. 4:12CV00157 (RAW) (S.D. Iowa January 14, 2014) (‘‘[t]he use of . . . social media like Facebook is an ever increasing way people speak to each other in the twenty-first century’’); State v. Craig, 167 N.H. 361, 369, 112 A.3d 559 (2015) (‘‘Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding e-mail usage in 2009’’); Forman v. Henkin, 134 App. Div. 3d 529, 543, 22 N.Y.S.3d 178 (2015) (‘‘Facebook and other similar social networking sites are so popular that it will soon be uncommon to find a . . . [person] who does not maintain such an online presence’’). Nor were they ‘‘technically complex issue[s]’’ requiring expert testimony. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 78, 848 A.2d 395 (2004); see also Graziosi v. Greenville, 985 F.Supp.2d 808, 810 (N.D. Miss. 2013) (‘‘Facebook claims to enable ‘fast, easy, and rich communication’ ’’), aff’d, 775 F.3d 731 (5th Cir. 2015);United States v. Amaya, 949 F.Supp.2d 895, 912 (N.D. Iowa 2013) (‘‘Facebook offers . . . an affordable, easy, and extremely viable option to seek information’’); Olson v. LaBrie, Docket No. A11-558, 2012 WL 426585, *1 (Minn.App. February 13, 2012) (process for finding users on Facebook ‘‘simple’’), review denied (Minn. April 17, 2012); Smith v. State, 136 So.3d 424, 432 (Miss. 2014) (creating Facebook account ‘‘easy’’). M, as defense counsel acknowledged at trial, uses Facebook and is familiar with its basic functionalities. She could, therefore, explain simple Facebook concepts to the court, such as ‘‘friending’’ someone and the site’s general privacy settings.[12] See, e.g., State v. Inkton, Docket No. 102706, 2016 WL 762580, *13 (Ohio February 25, 2016) (detective ‘‘familiar with Facebook’’ could testify on ‘‘the difference between Facebook accounts that are open to the public and private accounts [and] using privacy settings to restrict the information that is available to the public’’); People v. Glover, 363 P.3d 736, 746 (Colo.App. 2015) (detective’s Facebook testimony not result of ‘‘any specialized knowledge, ’’ but based on experience and ‘‘knowledge common among ordinary people using, or considering the use of, Facebook’’), cert. denied, Docket No. 15SC277, 2015 WL 7987958 (Colo. December 7, 2015).

         Moreover, M’s testimony that she could view the profile of ‘‘Tasha Moore’’ through her own account, even though she was never friends with ‘‘Tasha Moore, ’’ was based on her individual perceptions of the profile, and not on any ‘‘specialized knowledge . . . .’’ Conn. Code Evid. § 7-2. The question of whether the profile was open to the public therefore became a determination based on M’s credibility.[13] See State v. Gaps, Docket No. 109423, 2014 WL 113465, *4 (Kan. App. 2014) (evidence supported defendant’s violation of probation condition that his Facebook profile remain open to public when lay witness testified that she could not find his profile as public user), review denied (Kan. January 8, 2015); Olson v. LaBrie, supra, 2012 WL 426585, *1 (lay witness testified that any member of public could access Facebook profile). The trial court acknowledged as much, stating twice that the issue of the public nature of the posts came down to whether the court believed M’s testimony that she was never friends with ‘‘Tasha Moore’’ and could view the posts through her own account.

         The trial court’s comment at the beginning of the trial expressing its unfamiliarity with Facebook did not otherwise create a need for expert testimony.[14] The trial court made this comment only a few minutes into the testimony of M, who was the state’s first witness to discuss Facebook. Thereafter, the trial court gained knowledge of the relevant Facebook concepts through the evidence admitted in the case. M explained the concept of ‘‘friending’’ someone, the general workings of Facebook’s privacy settings, and how one may determine whether a person’s profile is public or private based on whether a user who is not a friend can view the profile. The state reiterated these matters in its closing argument. The trial court, further, ensured its understanding of the relevant Facebook concepts by interjecting at different points throughout the proceedings to ask questions.[15] The Appellate Court concluded that these questions revealed the trial court’s lack of knowledge of Facebook. State v. Buhl, supra, 152 Conn.App. 159–60. We disagree. Rather, they demonstrate that the trial court appropriately learned the concepts relevant to the proceedings throughout the trial.[16]

         The Appellate Court’s second reason for concluding that M’s testimony was insufficient to establish the public nature of the Facebook posts was that M’s testimony on that point was contradictory. Id., 160. The Appellate Court focused on the following exchange between M and defense counsel on cross-examination:

‘‘Q. So . . . 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 ...

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