November 27, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. 13-08-2454.
M. Gennaro, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender, attorney;
Frank M. Gennaro, on the brief).
Magid, Assistant Prosecutor, argued the cause for respondent
(Mary Eva Colalillo, Camden County Prosecutor, attorney;
Jason Magid, of counsel and on the brief).
Judges Fisher, Suter and Geiger.
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.
evidence adduced at trial revealed that J.R. 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.
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.
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 Linked In 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
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
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
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.
"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.
"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.
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.
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
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."
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."
"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.
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.
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.
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.
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
acknowledged receiving a cease-and-desist letter from an
attorney. He filed a civil suit against J.R. Then his
unemployment was terminated.
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.
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. ...