State v. Buhl

• Decision Date: 14 June 2016
• Docket Number: SC 19412,SC 19413
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. TERI A. BUHL

STATE OF CONNECTICUT v. TERI A. BUHL

SC 19412

SC 19413

Supreme Court of Connecticut

Argued January 19, 2016

June 14, 2016

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

Officially released June 21, 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).

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 photo- graphs 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...