State v. B.A.
205 A.3d 1130
N.J. Super. Ct. App. Div.2019Background
- Defendant (B.A.) and victim (J.R.) dated; relationship ended after conflicts and threats; J.R. obtained an ITRO (Aug. 2, 2012) prohibiting contact.
- Defendant produced and posted numerous online videos (MonkeyCom and Band Aid Justice series) tagging and depicting J.R., including grotesque and sexually explicit content and depictions suggesting harm to J.R.’s dog.
- J.R. received many Google Alerts and testified the videos caused significant fear, emotional distress, and business harm; she ceased public speaking and networking.
- Defendant was indicted for stalking (N.J.S.A. 2C:12-10) for conduct Jan. 2–May 15, 2013; jury found him guilty of stalking and, after a bifurcated proceeding, found the stalking violated the ITRO, elevating the offense to third degree.
- Trial issues included constitutional challenge to the anti-stalking statute (overbreadth/vagueness re: “communicating to or about a person”), admission of pre‑indictment evidence, exclusion of a May 2013 video, lay-opinion testimony by the victim, and grading of the offense under the ITRO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality: overbreadth (First Amendment) | State: statute targets persistent, unwanted conduct and is limited by mens rea, specificity (directed at a specific person), and objective harm standards. | B.A.: phrase “communicating to or about, a person” criminalizes protected public speech; statute is overbroad. | Statute upheld; not substantially overbroad when read with mens rea, directed‑at, and objective fear/emotional‑distress limits. |
| Constitutionality: vagueness (facial and as‑applied) | State: statute provides objective standards; victim’s alerts and content made application clear. | B.A.: statute is vague regarding what communication is proscribed. | As‑applied upheld: defendant’s targeted, purposeful, repeated posts that caused objective fear/emotional distress were clearly proscribed; no need to decide facial vagueness. |
| Pre‑indictment evidence/admission & jury instruction | State: prior conduct was intrinsic and/or admissible under N.J.R.E. 404(b) to show motive, intent, course of conduct. | B.A.: admission of evidence predating indictment and a hybrid limiting instruction was error and prejudicial. | No plain error: evidence was intrinsic (and relevant under 404(b)); probative > prejudicial; hybrid instruction not reversible error. |
| Exclusion of Video 14 (prior consistent statement) | B.A.: video showed consistent motive/explanation and should have been admitted. | State: no allegation of recent fabrication or improper influence so N.J.R.E.803(a)(2) inapplicable. | No abuse of discretion: exclusion proper because defendant offered it as prior consistent statement absent a charge of recent fabrication. |
| Lay opinion testimony (victim calling conduct “stalking/harassment”) | State: victim’s description of her subjective state and effect on her was admissible lay testimony under N.J.R.E.701. | B.A.: allowing J.R. and another witness to label conduct was improper opinion evidence. | No plain error: testimony described perceived impact and was rationally based on perception; not outcome‑determinative error. |
| Grading as third‑degree (violation of ITRO) | State: bifurcated proceeding established stalking occurred within charged dates and violated the ITRO. | B.A.: jury not instructed it couldn’t consider pre‑ITRO conduct when deciding guilt; third‑degree elevation improper. | No reversible error: court framed the bifurcated issue narrowly, provided verdict sheet, and jury found violation within Jan 2–May 15, 2013. |
Key Cases Cited
- State v. Gandhi, 201 N.J. 161 (legislative history and scope of anti‑stalking statute)
- State v. Saunders, 302 N.J. Super. 509 (upholding anti‑stalking statute against First Amendment challenges)
- State v. Cardell, 318 N.J. Super. 175 (statute must be read in context; limitations narrow reach)
- State v. Burkert, 231 N.J. 257 (limits on expressive conduct; categories of unprotected speech)
- State v. Rose, 206 N.J. 141 (intrinsic evidence doctrine; standard for admissibility)
- State v. Lenihan, 219 N.J. 251 (presumption of statutory validity and duty to construe to avoid constitutional defect)
- Broadrick v. Oklahoma, 413 U.S. 601 (overbreadth analysis)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (overbreadth/vagueness framework)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (speech integral to criminal conduct not protected)
- Kolender v. Lawson, 461 U.S. 352 (vagueness and fair notice)
- United States v. Sayer, 748 F.3d 425 (speech integral to harassment/criminal conduct)
- United States v. Petrovic, 701 F.3d 849 (online publication of private/confidential info as integral to criminal conduct)