State v. B.A.

• Decision Date: 22 March 2019
• Docket Number: DOCKET NO. A-4214-15T4
• Citation: 458 N.J.Super. 391,205 A.3d 1130
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. B.A., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

458 N.J.Super. 391

205 A.3d 1130

STATE of New Jersey, Plaintiff-Respondent,

v.B.A., Defendant-Appellant.

DOCKET NO. A-4214-15T4

Superior Court of New Jersey, Appellate Division.

Argued November 27, 2018

Decided March 22, 2019

Frank M. Gennaro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Frank M. Gennaro, on the brief).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief).

Before Judges Fisher, Suter and Geiger.

The opinion of the court was delivered by

SUTER, J.A.D.

Defendant B.A. appeals his judgment of conviction for third-degree stalking, N.J.S.A. 2C:12-10(c). He argues the statute is unconstitutionally overbroad and vague, that he was denied a fair trial based on certain evidence rulings and that this offense should not have been graded as a third-degree crime under N.J.S.A. 2C:12-10(c). We find the statute is constitutional, there were no trial errors that were "clearly capable of producing an unjust result," Rule 2:10-2, and there was substantial evidence to support grading this conviction as a third-degree offense under the statute.

I

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 "a...