STATE OF NEW JERSEY, v. B.A., Defendant-Appellant. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION – Decided March 22, 2019
Submitted by Internet Crime Lawyer, Jeffrey Hark.
This is a very important case for several reasons which deals with Internet dating, social media apps, cyber harassment stalking and New Jersey’s anti-stalking statute. As a result I am including an entire summary of the facts, the legislative history, and the court’s full decision concerning the harassment anti-stalking anti-bullying cyber harassment and social media implications of this case.
Overview of the facts clearly reveal in the defendant with mental health issues. However, the key take away in this case is the use of a state police a computer forensic investigator who seized the defendant’s computer and exposed the his extensive use of dating apps, cyber bullying and harassment apps as well as Internet stalking apps. Plus, the overall computer footprint obtain by the state police and local investigators was used by the court to prove the very essence of the anti-stalking and cyber harassment statute.
The overall tone of this case should reflect that, I should not and will not take this extreme level of proof to convict a defendant of social media app stalking, cyber stalking, harassment, and general harassment. Rather, far less than this can and will be enough evidence to prove such crimes. I am confident the Camden County Prosecutor’s office used this case and prosecuted this case because the evidence was so overwhelming and the defendant’s mental health concerns and intent to mentally harm and harass this victim were so clear!
The Facts:
The evidence adduced at trial revealed that J.R.1 and defendant met via an internet dating site in October 2010 and began dating a month later. J.R. ran an internet marketing agency called XYZ, which she founded. Defendant, a schoolteacher, was then unemployed. He began to assist her with work as an independent contractor. Their romantic relationship ended following a heated argument in early February 2011. She testified she broke up with defendant because he had become more demanding of her time, would call her repeatedly if she did not answer her phone, and because her daughter was “very uncomfortable” with his presence. J.R. testified that defendant sobbed and begged her to reconcile with him, and then in the same conversation yelled at her and threatened to “ruin” her life, her business career, and her reputation. He said he would hurt her “in any way possible.” Although their professional relationship continued for about a month after the breakup, because of pending work, it too ended badly with J.R. sending defendant cease-and-desist letters to discontinue his contacts with her clients, and accusing him of undermining those relationships. Defendant then sued J.R. for uncompensated work.
J.R. testified that defendant began to join groups she belonged to and attend events when she would be present. She had a scheduled speaking engagement in March 2011 before the Camden County Chamber of Commerce, and defendant joined that group. She testified she was “very alarmed.” In April 2011, defendant joined the South Jersey Business Networking Group. In November 2011, J.R. posted on the Camden County Chamber’s LinkedIn webpage promoting an event she was organizing. Defendant commented on J.R.’s post, stating that he intended to attend. In January 2012, defendant attended a joint networking event for the Philadelphia and Camden Chambers of Commerce; J.R. was a member of the board. In April 2012, J.R. saw defendant at an event for a group she had founded called the “Ladies Networking Group.” Then, in June 2012, a friend warned J.R. not to attend a rotary luncheon because defendant was there. J.R. testified she was “upset and shaking” when she learned he was there.
J.R. learned in April 2011 that defendant had begun following her on Twitter. J.R. immediately “blocked” defendant, thereby preventing him from following or contacting her on that platform.
In November 2012, J.R. learned about a website titled “Band Aid Justice,” where videos were posted that appeared to disparage her. These also were on streaming video websites, YouTube and Vimeo, under an account with the same name. The court admitted into evidence two videos from this series. These videos were titled for purposes of the trial: “Cross-Motion Claiming Physical Violence” (“Physical Violence”), and “Who Asked for Your Opinion.”
J.R. testified that defendant “tagged” her in the “Physical Violence” video, though he did not refer to her by name in that video. She said a “tag” is a feature by which YouTube allows a user, who is posting a video, to place a “tag” on the video, which could include a person’s name. The purpose of a tag “is to be able to have [the video] discovered when a person searches for that term.” Then, if a user has set up a “Google alert” for a name or term, Google will notify the user every time that name or term is tagged in a video or mentioned online. J.R. explained to defendant while they were dating that she received Google alerts when her name or business was mentioned online. Thus, she alleged that defendant knew that she would receive a Google alert each time he tagged her on one of his videos.
On the “Physical Violence” video, defendant criticized the justice system and explained that he was the subject of false accusations that could trigger an “emotional response.” This video featured a clip from the film Inglourious Basterds, which J.R. testified scared her, because it depicted a man grabbing a blonde woman by the throat and strangling her to the ground.
The “Who Asked for Your Opinion” video featured a recording of the song, “One Way or Another” by Blondie with the lyrics: “[o]ne way or another, I’m gonna find ya’, I’m gonna get ya’, get ya’, get ya’, get ya’.” J.R. testified that the videos “terrified” her.
Defendant posted other videos to a website called MonkeyCom modeled after her business’s website, but on MonkeyCom her face was photoshopped over the caricature of a monkey. Defendant posted these videos to YouTube under an account with the same name. During the period of the indictment, January 2, 2013 to May 15, 2013, defendant posted 176 videos to the MonkeyCom site and YouTube account. Ten of the MonkeyCom videos were shown to the jury.
J.R. discovered MonkeyCom after she received a Google alert. In five of the ten “MonkeyCom” videos, defendant refers to himself by name, either verbally or in screen text, as a “stalker,” “harasser,” and an “internet troll.” Four feature the J.R. photoshopped caricature alongside text identifying her by name as a “criminal at large.” Three claim or imply that J.R. is suffering from a mental illness. J.R. testified that she was scared upon watching the video series because she feared he was trying to “drive [her] business to the ground.”
J.R. testified that another video titled for purposes of trial, “RU Burger Farms Breakfast Patties” (“RU Burger Farms”), made her scared for her safety. That video shows J.R.’s dog “Ruger,” a Belgian Malinois. J.R. testified she obtained Ruger for protection from defendant. This video shows what purports to be a box of sausage patties made from “Belgian Malinois meat products,” with a picture of a dog resembling Ruger photoshopped onto the box. Defendant then is shown sitting at a table dining on the sausage patties and commenting on how delicious they are, noting, among other descriptions, their “gooey taste” and “nice bloody center.”
In another video, “Coming Soon MonkeyCom [XYZ] [J.R.],” after Ruger’s image fades, it is replaced with meat processing footage. Following that are video clips of monkeys in business suits in an office that defendant calls the XYZ “corporate office.”
In “MonkeyCom News [J.R.] of [XYZ] Reports Her Dog as Being Eaten” (“MonkeyCom News”), defendant identified J.R. by name and then narrated a story that was filled with sexually explicit double entendres involving a rooster and cat. J.R. testified that she felt disgusted by this video and found it to be pornographic and sick.
In the spring of 2013, when the MonkeyCom account was active, J.R. received more than 100 Google alerts notifying her that she had been mentioned or “tagged” in one of defendant’s videos. J.R. testified she eventually disbanded XYZ because of the “MonkeyCom” series and had to seek professional help to deal with the emotional impact of the videos. J.R. stopped public speaking and attending networking events from fear she would encounter defendant or say something he would parody in a video.
A detective for the Division of Criminal Justice testified that defendant’s internet browser included websites called getrevenge.com, getrevengeonyourex.com, and bestrevengewebsites.html that defendant had bookmarked. J.R. obtained a temporary restraining order (TRO) against defendant in March 2011, but then agreed to the entry of civil restraints. On August 2, 2012, both parties consented to entry of an Indefinite Temporary Restraining Order (ITRO). This prohibited defendant from contacting J.R. through any means, including electronic.
Defendant testified that he, not J.R., ended the dating relationship; he wanted to spend more time with her but she was busy with work and family pressures. She also wanted to run for a local political office and it “scared” him because that was “another thing that came into the relationship.” He testified that at one point, she did not return his calls but had time to post to Facebook, which made defendant “very, very angry,” and he ended the relationship as a result following a “heated discussion.”
He acknowledged receiving a cease-and-desist letter from an attorney. He filed a civil suit against J.R. Then his unemployment was terminated.
Defendant testified it was just a coincidence that in 2011 and 2012, he and J.R. attended the same events. He joined the same groups to which she had belonged, because he was unemployed and needed to network because building websites and design work was his only marketable skill. At some point, however, he was asked not to attend an event and was threatened.
Defendant testified that he tagged videos not to send them to J.R. but to make his viewers aware that J.R. was the subject of his videos. The MonkeyCom series of videos were parodies where he commented on and mocked things J.R. had said about him; he explained they were not “about” her.
Defendant believed that J.R. was stalking and harassing him. He used the Blondie song in a Band Aid Justice Video because he identified with Blondie, who he said was being stalked at the time she released the song.
Defendant testified the “RU Burger Farms” videos were a response to J.R.’s video of Ruger—that she posted to YouTube—commanding her dog to “get him,” and “eat him.” Defendant assumed this was about him even though he was not mentioned by name. His videos were intended to be jokes, not threats.
On cross-examination, defendant acknowledged entries from his diary that were written between October and November 2011, saying he was “sad and angry” from the breakup, was “chasing [J.R.]” in his “mind,” and was “constantly trying to find a way to get revenge.” In January 2012, he wrote, “I need [J.R.] so I feel more valuable than I see myself to be. I have no one to impress. I want to have the one I love be impressed by who I am.” In the same entry, defendant wrote, “Dear [J.R.] . . . I didn’t think you had me in your plans, but I’m making sure that you remember me. I’m making sure you know I’m alive and real and that I have feelings. What you’ve done by moving me aside I’ll never forget.” In an entry from April 2012, defendant wrote that his actions in signing up for chamber events were not the “best decision, but [he] was angry.” Defendant said these entries had nothing to do with J.R. but were examples of cathartic writing.
The Law:
In 2009, the anti-stalking statute was amended to provide as follows: a. As used in this act:
(1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person’s property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.
(2) “Repeatedly” means on two or more occasions.
(3) “Emotional distress” means significant mental suffering or distress.
(4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.
- A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.
- A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior.
Legislative History:
“[T]he Legislature intended the anti-stalking statute to cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors.” State v. Gandhi, 201 N.J. 161, 187 (2010). It has been upheld against previous challenges to its constitutionality. See State v. Saunders, 302 N.J. Super. 509 (App. Div. 1997) (upholding the original 1992 version, L. 1992, c. 209, § 1, against a First Amendment overbreadth and vagueness challenge); State v. Cardell, 318 N.J. Super. 175 (App. Div. 1999) (upholding the 1996 amended statute, L. 1996, c. 39, §1, against similar challenges). The statute was amended in 1999 (L. 1999, c. 47, §1) to delete “the specific intent requirement applicable to the effect of a stalker’s conduct,” and again in 2001 (L. 2001, c. 220, § 2), when it was “expanded to include situations in which a stalker indirectly conveys threats through any means of communication.” Gandhi, 201 N.J. at 182-83, 185. Each of these amendments showed “the legislative design” to broaden the statute “toward greater restrictions on stalking behavior and, correspondingly, greater protections for victims of that behavior . . . .” Id. at 185.
In 2009, the statute was “broadened ‘to cover stalking by means of new technology, such as situations where the stalker tracks the victim through the use of a global positioning system attached to the victim’s car.'” Id. at 185 n.12 (quoting Assemb. Law & Public Safety Comm. Statement to Assemb., No. 1563, 213th Leg. 1-2 (N.J. 2008)). These amendments were based on a 2007 report by the National Center for the Victims of Crime (NCVC). Sponsor’s Statement to A. 1563 3-4 (L. 2009, c. 28). With respect to “new technology,” the NCVC report noted that “[n]ew, affordable technology has fundamentally and profoundly changed the way stalkers monitor and initiate contact with their victims.” Nat’l Ctr. for Victims of Crime, The Model Stalking Code Revisited: Responding to the New Realities of Stalking 15 (2007). The NCVC added that “victims . . . often cannot perform everyday tasks such as . . . using their computers without fear of unwanted contact from the person who is stalking them.” Id. at 15. The legislature “substantially broadened victim protection.” Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:12-10(1) (2018). Relevant here, the 2009 amendment modified the “course of conduct” definition to add the language “communicating to or about, a person” and included “indirect conduct, conduct through third parties, and repeated harassment.” Ibid. The amendment “imposed liability for causing emotional distress and added definitions for ’emotional distress’ and ’cause a reasonable person to fear.'” Ibid. “A presumption of validity attaches to every statute”; the burden is on the party challenging the constitutionality of the statute to establish its unconstitutionality. State v. Lenihan, 219 N.J. 251, 266 (2014). We “are obligated to construe a challenged statute to avoid constitutional defects if the statute is reasonably susceptible of such construction.” Id. at 266 (quoting Cty. of Warren v. State, 409 N.J. Super. 495, 506 (App. Div. 2009)). Where a statute “criminalizes expressive activity,” we construe it “narrowly to avoid any conflict with the constitutional right to free speech.” State v. Burkert, 231 N.J. 257, 277 (2017).
Interpretation of the behavior of this defendant and cyberstalking, harassment, emotional distress:
The indictment charged defendant with third-degree stalking for his conduct from January 2, 2013 to May 15, 2013. Defendant contends it was plain error for the court to admit evidence during the trial that related to any time prior to January 2, 2013 (the pre-indictment evidence). He also argues the trial court’s “hybrid” jury instruction that addressed the use of pre-indictment evidence was deficient because it did not tell the jury it could not use pre-indictment evidence to prove the course of conduct element under the stalking statute.
The pre-indictment evidence included: defendant’s emotional outburst after his relationship with J.R. ended and his threat to “ruin” her; defendant’s civil lawsuit against J.R.; his attempt to follow her on Twitter; his attendance at networking events that J.R. attended; his joining of clubs with which he knew she was affiliated; and two Band Aid Justice videos from prior to January 2, 2013.
This evidence was admitted without objection by defendant. In fact, defendant invited the introduction of this evidence to explain his conduct and also opposed the State’s effort, in the initial portion of the trial, to exclude evidence of the prior restraining order and his litigation.
The trial court ruled that the pre-indictment evidence was admissible both as intrinsic evidence that directly proved the crime and under N.J.R.E. 404(b) as evidence of motive or intent. We review this issue under a plain error standard, meaning we will only reverse if the error is “clearly capable of producing an unjust result.” State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).
Intrinsic evidence is evidence that “directly proves” the charged offense or evidence of “acts performed contemporaneously with the charged crime . . . [that] facilitate the commission of the charged crime.” Rose, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010)). It is distinguishable from “other crimes” evidence under Rule 404(b) because it is not evidence of another crime; it directly proves the charged offense. Id. at 177. “[E]vidence that is intrinsic to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the [N.J.R.E.] 403 balancing test.” Id. at 177-78. In contrast, under Rule 404(b), evidence of other crimes is not admissible but it can be used for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.” N.J.R.E. 404(b); see Rose, 206 N.J. at 177.
The trial court admitted the pre-indictment evidence both as intrinsic evidence and under Rule 404(b). The trial court conducted a Cofield2 analysis as required under Rule 404(b), finding the pre-indictment evidence was admissible. The evidence was intrinsic evidence. It showed the relationship that ended and the conduct that ensued after; it offered direct proof of defendant’s motive for producing the videos, and showed his obsession with, and hostility toward, J.R. We find no error by the trial judge in admitting this as relevant evidence that was probative and not unduly prejudicial. Although it may have been error to treat this evidence as both intrinsic and under Rule 404(b), we do not find that error rose to the level of plain error. The confusion was that the evidence tended to prove motive or intent, which also was admissible under Rule 404(b).
The court gave a “hybrid” jury instruction because of its treatment of this pre-indictment evidence as both intrinsic and admissible under Rule 404(b). We do not find the instruction constituted plain error on this record because it instructed the jury that the evidence could not be used as proof defendant had a tendency to commit crime or was a bad person.
C
Defendant claims he was deprived of a fair trial because one of the videos (Video 14)3 was excluded that he wanted to be shown to the jury. He claimed the State had chosen this May 2013 video as evidence of stalking and then decided not to show it to the jury. Defendant wanted the jury to see it, because he argued it showed his purpose in making the video was to expose his maltreatment by the justice system. Defendant acknowledged he wanted to introduce the video as proof of a prior consistency, namely that the explanation for his actions had not changed from the time before he was charged right up to, and through, the time of trial.