RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4667-11T1
A-4787-11T1
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Cross-Appellant, APPROVED FOR PUBLICATION
September 9, 2016
v.
APPELLATE DIVISION
DHARUN RAVI,
Defendant-Appellant/
Cross-Respondent.
Argued February 3, 2016 - Decided September 9, 2016
Before Judges Fuentes, Kennedy and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 11-04-00596.
Steven D. Altman argued the cause for
appellant/cross-respondent (Benedict and
Altman, and Gibbons, P.C., attorneys;
Lawrence S. Lustberg and Amanda B. Protess,
of counsel; Mr. Altman and Philip Nettl, on
the briefs).
Joie D. Piderit, Assistant Prosecutor,
argued the cause for respondent/cross-
appellant (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Susan L. Berkow,
Assistant Prosecutor, of counsel and on the
briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
On April 20, 2011, a Middlesex County grand jury returned
Indictment No. 11-04-00596 charging defendant Dharun Ravi as
follows: Count 1, fourth degree invasion of privacy, occurring
on September 19, 2010, with regard to T.C. and M.B., contrary to
N.J.S.A. 2C:14-9(a); Count 2, third degree bias intimidation,
occurring on September 19, 2010, with regard to T.C. and M.B.,
contrary to N.J.S.A. 2C:14-9(a) and N.J.S.A. 2C:16-1(a)(1) and
(2), and with regard to T.C., contrary to N.J.S.A. 2C:14-9(a)
and N.J.S.A. 2C:16-1(a)(3)(b); Count 3, third degree invasion of
privacy, occurring on September 19, 2010, with regard to T.C.
and M.B., contrary to N.J.S.A. 2C:14-9(c); Count 4, second
degree bias intimidation, occurring on September 19, 2010, with
regard to T.C. and M.B., contrary to N.J.S.A. 2C:14-9(c) and
N.J.S.A. 2C:16-1(a)(1) and (2), and with regard to T.C.,
contrary to N.J.S.A. 2C:14-9(c) and N.J.S.A. 2C:16-1(a)(3)(b);
Count 5, fourth degree attempted invasion of privacy, occurring
on September 21, 2010, with regard to T.C. and M.B., contrary to
N.J.S.A. 2C:14-9(a) and N.J.S.A. 2C:5-1; Count 6, third degree
bias intimidation, occurring on September 21, 2010, with regard
to T.C. and M.B., contrary to N.J.S.A. 2C:14-9(a), N.J.S.A.
2C:5-1, and N.J.S.A. 2C:16-1(a)(1) and (2), and with regard to
T.C., contrary to N.J.S.A. 2C:14-9(a), N.J.S.A. 2C:5-1, and
N.J.S.A. 2C:16-1(a)(3)(b); Count 7, third degree attempted
2 A-4667-11T1
invasion of privacy, occurring on September 21, 2010, with
regard to T.C. and M.B., contrary to N.J.S.A. 2C:14-9(c) and
N.J.S.A. 2C:5-1; Count 8, second degree bias intimidation,
occurring on September 21, 2010, with regard to T.C. and M.B.,
contrary to N.J.S.A. 2C:14-9(c), N.J.S.A. 2C:5-1, and N.J.S.A.
2C:16-1(a)(1) and (2), and with regard to T.C., contrary to
N.J.S.A. 2C:14-9(c), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:16-
1(a)(3)(b); Count 9, fourth degree tampering with physical
evidence, occurring on September 22, 2010, contrary to N.J.S.A.
2C:28-6(1); Count 10, fourth degree tampering with physical
evidence, occurring on September 22, 2010, contrary to N.J.S.A.
2C:28-6(2); Count 11,1 third degree hindering apprehension or
prosecution, occurring on September 22, 2010, contrary to
N.J.S.A. 2C:29-3(b)(1); Count 12, third degree hindering
apprehension or prosecution, occurring on September 23, 2010,
contrary to N.J.S.A. 2C:29-3(b)(3); Count 13, third degree
hindering apprehension or prosecution, occurring on September
23, 2010, contrary to N.J.S.A. 2C:29-3(b)(4); Count 14, third
1
Prompted by the trial judge's sua sponte comments, the State
moved to amend the indictment to relabel the hindering
apprehension charge -- on counts 11 and 13 under N.J.S.A. 2C:29-
3(b)(1) and (4) -- from a third degree offense to a fourth
degree offense. Count 12 was amended to a second degree
offense. The trial judge granted the State's motion and denied
defendant's motion to dismiss all of the hindering counts as
inconsistent with the tampering counts.
3 A-4667-11T1
degree witness tampering, occurring on September 23, 2010,
contrary to N.J.S.A. 2C:28-5(a)(1) and/or (2); and Count 15,
fourth degree tampering with physical evidence, occurring
between September 19 and 23, 2010, contrary to N.J.S.A. 2C:28-
6(1).
Both parties engaged in extensive pretrial motion practice.2
Defendant was eventually tried before a jury over a period of
sixteen days. On March 16, 2012, the jury found defendant
guilty on all fifteen counts in the indictment, although not on
every charge reflected in each count.3 Defendant made a motion
for a new trial. The motion was heard both in open court and at
sidebar, because part of defendant's arguments concerned M.B.
The court ultimately denied the motion for a new trial.
On May 21, 2012, the trial judge sentenced defendant to an
aggregate three-year probationary term, conditioned upon serving
thirty days at the Middlesex County Adult Correctional Center.
2
Given the media attention this case received, the State sought
to protect the privacy of M.B. by keeping all information
pertaining to his identity confidential. The court granted
defendant's motion seeking supplemental discovery on M.B., but
denied a motion seeking to unseal records pertaining to his
identity. We denied defendant's interlocutory motion for leave
to appeal the trial court's decision.
3
The verdict sheet required the jury to determine defendant's
guilt on thirty-five individual charges originally contained in
the fifteen counts of the indictment. The jury found defendant
guilty of twenty-one of the thirty-five charges.
4 A-4667-11T1
The judge also ordered defendant to complete 300 hours of
community service, attend counseling on cyber-bullying and
alternate lifestyles, and pay an assessment of $10,000, which
would be allotted to a state-licensed or state-chartered
community-based organization dedicated to providing assistance
to victims of bias crimes.
Defendant appeals his convictions. The State has filed a
cross-appeal challenging the legality of the probationary
sentence imposed by the trial judge. The State points out that
defendant was convicted of two counts of second degree bias
intimidation and one count of second degree hindering
apprehension in violation of N.J.S.A. 2C:29-3(b)(3). These
three convictions carry a presumption of incarceration pursuant
to N.J.S.A. 2C:44-1(d). The State argues the trial judge failed
to follow the standard established by the Supreme Court in State
v. Evers, 175 N.J. 355, 389-95 (2003), in imposing a probationary
sentence on these offenses.
We are satisfied that the outcome of this appeal comes down
to a careful application of our Supreme Court's analysis and
holding in State v. Pomianek, 221 N.J. 66, 69 (2015), which
declared N.J.S.A. 2C:16-1(a)(3) unconstitutional because it
allowed a jury "to convict a defendant even when bias did not
motivate the commission of the offense." Here, the jury found
5 A-4667-11T1
defendant guilty on four counts directly predicated on N.J.S.A.
2C:16-1(a)(3), a now constitutionally defunct law. Indeed, the
prosecutor conceded at oral argument before this court that the
convictions under counts 2, 4, 6, and 8 are void as a matter of
law pursuant to Pomianek. Thus, these four charges against
defendant must be dismissed with prejudice.
After carefully reviewing the record developed at trial, it
is clear that the evidence the State presented to prove the bias
intimidation charges under N.J.S.A. 2C:16-1(a)(3) permeated the
entire case against defendant, rendering any attempt to salvage
the convictions under the remaining charges futile. The State
used evidence revealing the victim's reserved demeanor and
expressions of shame and humiliation as a counterweight to
defendant's cavalier indifference and unabashed insensitivity to
his roommate's right to privacy and dignity. The prosecutor
aggressively pressed this point to the jury in her eloquent
closing argument.
It is unreasonable to expect a rational juror to remain
unaffected by this evidence. In light of the Court's ruling in
Pomianek, admission of T.C.'s state of mind evidence constituted
an error "of such a nature to have been clearly capable of
producing an unjust result." R. 2:10-2. Finally, independent
of this overarching error, we conclude that defendant’s
6 A-4667-11T1
conviction on Count 12, charging him with second degree
hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(3),
must be vacated and the charge against him dismissed with
prejudice as a matter of law for insufficiency of the evidence.
R. 3:18-1.
I
Defendant graduated from high school in June 2010 with
plans to attend Rutgers University in the fall. On August 6,
2010, he received an email from Rutgers directing him to the
housing application website where he learned that he had been
assigned a dorm room in Davidson Hall C on the Busch Campus.
The website also disclosed that T.C. would be his roommate and
provided his contact information. Defendant asked his friend
J.T.4 to suggest other Internet-related ways to find out more
information about T.C.
This "conversation" between J.T. and defendant took place
in an instant-message5 format. With J.T.'s help, defendant
4
We use initials for witnesses to protect their privacy
interests. R. 1:38-3(c).
5
Instant messaging (IM) is an on-line electronic text message
system "whereby participants are on-line at the same time and
communicate with each other in 'real time,' as if they were
talking on the phone." Jorge Amieva, Legal Advice Given Over
the Internet and Intranet: How Does this Practice Affect the
Lawyer-Client Relationship?, 27 RUTGERS COMPUTER & TECH. L.J. 205,
218-19 (2001).
7 A-4667-11T1
learned that T.C. had an interest in the violin and that someone
using T.C.'s email address had posted on a gay forum. This last
discovery prompted the following response from defendant: "FUCK
MY LIFE. He's gay."
Defendant's friend, S.X.,6 testified that defendant had
"googled" T.C.'s name and found that T.C. had a "posting on a
gay forum and therefore he inferred that [T.C.] was homosexual."
On cross-examination, S.X. testified that defendant did not
discuss the topic of homosexuality during high school.
Defendant also did not say "anything about disliking
homosexuals." While in high school, S.X. and defendant were
members of the Ultimate Frisbee Club. Both S.X. and defendant
continued this activity at Rutgers by joining the Rutgers
Ultimate Frisbee Club.
A.C. was also defendant's high school friend. He
corroborated S.X.'s testimony concerning defendant's attitude or
disposition about homosexuality. A.C. stated defendant had
never said anything anti-gay, but acknowledged the subject was
not one they normally discussed. Defendant told A.C. in August
2010 that his roommate was gay, but A.C. characterized this as
6
S.X. attended the same high school as defendant and both
graduated in 2010. They also enrolled at Rutgers' Busch Campus.
S.X. resided at Highland Hall. S.X. testified at trial as part
of the State's case in chief.
8 A-4667-11T1
merely a part of a casual conversation.
Defendant moved into his dorm room on August 28, 2010; his
high school classmate M.W. resided in the room directly across
the hall. Defendant and M.W. became friends and started
socializing and "hanging out together." M.W. testified that
defendant "mention[ed] early on that he thought [T.C.] might be
gay[.]" She characterized this as a very brief casual remark
that "didn't come again." M.W. never thought that defendant
bore any animosity toward T.C. or otherwise resented him for
being gay; rather, she believed that T.C. and defendant merely
had different personalities. She described T.C.'s demeanor as
quiet and reserved. Thus, although she lived across from him,
M.W.'s interactions with T.C. were limited to saying "hi" in the
hallway.
A
September 19, 2010 Incident
M.W. testified that during an instant-message conversation
with defendant at 9:06 p.m. on Sunday, September 19, 2010, she
invited defendant to come to her room for a snack. Defendant
agreed. When the prosecutor then asked M.W. to tell the jury
what defendant told her when he came over to her room, M.W.
responded:
I'm not sure if this happened right when he
came into my room or maybe a little later
9 A-4667-11T1
on, but he told me eventually that when he
went into his room he wanted to -- I think
his roommate asked him if he could have the
room for a period of time.
Defendant told M.W. that as he was about to leave the room,
T.C. made it clear that he wanted the room to himself, and that
defendant should not return "for a while." M.W. testified that
defendant left her room briefly, but returned after he saw "a
guest that [T.C.] was having over." Defendant described the
guest as "an older-looking man . . . I guess not a college-age
student-looking kind of guy . . . just like an older, shabbier-
looking guy." M.W. testified that defendant left her room again
for a brief period of time.
PROSECUTOR: And what happened when he came
back to your room at that time?
A. By that time he had set up his computers
so that -- or I guess it's his computer to
basically auto accept if anyone wants to
video chat with him, and he explained to me
that he could see what was going on in his
room if somebody else -- if he called his
computer from someone else's computer.
PROSECUTOR: That he would be able to see
what was going on in his room?
A. Yes.
PROSECUTOR: Now, you said the words
automatically accept. Did you know anything
about that before he mentioned it to you?
A. No.
10 A-4667-11T1
PROSECUTOR: And did you know that he could
even do that?
A. No.
As M.W. sat by her computer, defendant opened the chat box,
selected his own name, and clicked on the video button. An
image of T.C. and his guest appeared on the screen. M.W.
testified that she saw the two men kissing. Although the room
was dark, she was able to see that they were standing and were
fully clothed. M.W. testified that the video feed was open
"very, very brief[ly]. Like two seconds or less. We closed it.
I'm not sure who closed it first, but we closed it."
M.W. testified that she and defendant "were both just kind
of like really shocked. . . ." According to M.W., their initial
reaction was to keep what they had seen to themselves and not
tell anyone what happened. In M.W.'s words: "[I]t was just very
shocking."
PROSECUTOR: Now, why did you talk about not
telling anyone what had just happened?
A. Just because, it was -- like it shouldn't
have happened and we saw something that we
didn't expect to see and . . . it just felt
weird.[7]
M.W. walked away from her computer and sat on her bed. She
7
On cross-examination M.W. explained that "this was [her] first
experience seeing two males kissing[.]"
11 A-4667-11T1
testified that defendant continued using her computer to "AIM
[chat]" with a mutual friend. M.W. also believed that defendant
went on Twitter. A screenshot8 of defendant's Twitter captured
the following tweet: "Roommate asked for the room till midnight.
I went into [M.W.'s] room and turned on my webcam. I saw him
making out with a dude. Yay."
M.W. later engaged in an instant-message conversation with
her boyfriend from high school who was attending Stevens
Institute of Technology at the time. A screenshot of their chat
showed that M.W. told A.C., "[T]he craziest thing . . . just
happened;" defendant then typed: "My roommate asked for the room
till midnight. And I was like wtf.[9] But whatever I said okay
and I left and I went into [M.W.'s] room and I turned on my
webcam from there. And I saw him making out with some dude."
C.C. was M.W.'s roommate. She was in the dorm lounge at
around 9 p.m. when she saw T.C. enter the building, accompanied
by a man whom she had not seen before. She described the man as
having an "Italian look about him." He had dark hair and a
goatee, and he looked older than the typical college student,
but "not obscenely old." In response to the prosecutor's
8
A "screenshot" is a snapshot image of the information displayed
on a computer screen at a given point in time.
9
"Wtf" stands for "what the fuck."
12 A-4667-11T1
questions, C.C. estimated that he appeared to be in his "late
20's, early 30's." T.C. and the man walked in the direction of
the dorm rooms. Thereafter, C.C. remained in the dorm lounge
for approximately twenty minutes before she decided to return to
her room.
When C.C. walked into her room, she saw M.W. chatting on
her computer and defendant reading over her shoulder saying:
"No, no, tell them not to call my vid chat." When she was later
questioned by law enforcement officers about this particular
incident, C.C. explained that she inferred defendant did not
want other persons to access the chat and see "what was going
on." Defendant informed C.C. of his sneaking suspicion that
T.C. was gay, but he told her that he "was not sure about it."
C.C. testified that defendant "wanted to find out for sure." He
used his video chat to see if T.C. and his guest "were like
friends chilling" or else "making out and like having
interactions of that sort." However, C.C. also testified that
defendant "didn't have an issue with homosexuals and that in
fact he had a really good friend that [sic] was homosexual[;] he
had no issue with him at all."
Defendant and C.C. left M.W.'s room and went to the dorm
lounge. Defendant came up to his friend A.A. and told him he
had "a secret." A.A. described defendant's demeanor at the time
13 A-4667-11T1
as "distraught." According to A.A.'s testimony, defendant told
A.A. that his roommate, T.C., "had just invited a guy over and
asked for the room, for it to be his that night." Although he
did not know T.C., A.A. claimed that he "went along with saying
[']oh, wow, that's pretty crazy and scandalous[.']" A.A.
claimed that he did not say these things because T.C. "invited
another male to the room[.]" The only part of defendant's
revelation A.A. found "scandalous" was the description of the
"guy who was invited over as someone older[.]"
C.C. told P.K., K.N., and R.M. about seeing T.C. "making
out" with a man in his dorm room through defendant's video chat.
Defendant, C.C., A.A., P.K., K.N., and R.M. all returned to
M.W.'s room to continue talking about T.C. and his guest. C.C.
testified that she, P.K., K.N., and R.M. were curious about what
was going on in T.C.'s dorm room and wanted to see the video.
C.C. in particular noted that T.C. "wasn't out to the public
about being gay or anything, so it was kind of like, [']I wonder
if it is true[,'] or, you know, just out of curiosity."
M.W. initiated the link to defendant's computer. C.C.
testified that "the video was only about a second long." She
gave the following description of what she saw:
A. It came up first, but for a second there
was a quick video and you saw two males
leaning up against the bed making out.
14 A-4667-11T1
Q. And could you actually see that?
A. Yes.
Q. Okay. Could you tell who the two males
were?
A. I couldn't tell specifically, but through
logic I determined that one was [T.C.] and
one being the other male that accompanied
him into the building.
Q. When you say logic, why do you say that?
A. Because I know that [defendant] had a
desktop, so that would be where his video
camera would have been stationed, and the
other -- the only other person with access
to the room would be [T.C.] and I knew that
he had asked for the room during this
period.
Q. How did you know that [defendant] had a
desktop? . . . [W]hat do you mean by
[desktop]? . . . .
A. Like a monitor just like that and like a
modem on the floor, on the side.
Q. How did you know that?
A. With [defendant], through walking by the
room and also I believe it came up in
conversation once or twice.
Q. Conversation with [defendant]?
A. Or with [M.W.], with someone that knew.
Q. And when you saw the image on the screen
did it appear to be a picture or a live
image?
A. A live image.
15 A-4667-11T1
Q. And when you say [there] were the two
males that were kissing, . . . could you
tell whether they had clothes on or no
clothes on?
A. I could only really see one of them and
his back was to the camera and he appeared
to be shirtless.
Q. And what happened after that, after you
saw that image?
A. Someone pressed none tweeted abruptly,
and we said okay, that happened and that was
the end of that (sic).
[(Emphasis added).]
M.W., K.N., R.M., P.K., and "maybe" defendant were in the
room with C.C., and using M.W.'s laptop computer to view the
foregoing surreptitious images. C.C. later claimed that M.W.
was the one who "abruptly" stopped the transmission. When the
prosecutor asked C.C. if anyone said anything to cause M.W. to
shut it down, she answered, "I can't recall to be honest."
P.K. testified that it was M.W. who encouraged them to
watch the live video transmission. P.K.'s description of the
images she viewed corroborated C.C.'s account in all but one
material detail. According to P.K., the video transmission was
terminated after about five seconds. The female students told
defendant what they had seen when he returned to the room. P.K.
testified that defendant was not particularly bothered by what
he heard. In P.K.'s words: "He was just okay." He told them he
16 A-4667-11T1
did not have a problem with T.C. being gay. P.K. returned to
the dorm lounge. She later saw T.C. come out of his room with
his guest. She described the man as being approximately thirty
years old, and thus viewed him as "very old." Defendant
returned to M.W.'s room around midnight and fell asleep in her
chair until about 2:00 a.m., at which point he returned to his
own room.
B
September 21, 2010 Incident
At approximately 5:30 p.m. on Tuesday, September 21, 2010,
defendant texted M.W. the following message: "Its (sic) going
down tonight also." M.W. inferred from this cryptic text
message that T.C. had again asked defendant to have the dorm
room for himself. M.W. responded: "wtf again (sic), I'm worried
about you lol[.]"10 Defendant replied, "I'm gonna [sic] be at
practice anyway."
A.Ag. met defendant shortly after she moved into Davidson
Hall C; they soon became friends. She received the tweet
defendant sent on Sunday night (September 19, 2010) saying that
he saw his roommate "making out with a dude." When the
prosecutor asked her to explain what the tweet meant to her, she
responded: "It didn't faze me . . . as much as it should have.
10
"Lol" stands for "laughing out loud."
17 A-4667-11T1
I really didn't think much of it. I don't even remember at the
time if I knew of [T.C.'s] sexual orientation, so it just really
didn't faze me." A.Ag. received another tweet from defendant on
Tuesday September 21, 2010, that said: "Anyone with iChat I dare
you to video chat me between the hours of 9:30 and 12. Yes,
it's happening again." (Emphasis added).
Later on that Tuesday evening, defendant explained the
auto-accept feature on his computer to A.Ag. and other friends,
encouraging them to video chat him between 9:30 p.m. and
midnight. Defendant went to A.Ag.'s room after dinner and used
her computer to video chat with his computer. A.Ag. testified
that she saw an image appear on her screen, which showed T.C.'s
side of the dorm room and T.C.'s bed. A.Ag. and defendant left
the dorm together at approximately 8:30 p.m.; defendant went to
practice with the Ultimate Frisbee Club.
Sometime after 10 p.m., defendant went to A.Ag.'s dorm room
to show her the new cleats he had purchased. According to
A.Ag., defendant stayed in her room and helped her with her
calculus homework for the next couple of hours. A.Ag. testified
that defendant rarely spoke about T.C., and that he never made
any derogatory remarks during the few occasions on which T.C.
did come up in conversation. A.Ag. also testified that
defendant did not seem in any way upset that T.C. was gay. She
18 A-4667-11T1
described defendant as "absurd" and being his "crazy goofy
self."
L.O., another friend defendant made after arriving at
Rutgers, saw defendant in the dorm lounge around 6:30 p.m. on
the evening of Tuesday, September 21, 2010. Defendant told L.O.
that the events from Sunday night were happening again, and he
asked if he could use L.O.'s computer to remotely activate the
webcam on his own computer. The two of them went to L.O.'s
room. Defendant initiated an iChat from L.O.'s computer,
thereby activating the webcam on his own computer in his dorm
room. When an image of defendant's room appeared on the screen,
defendant explained the auto-accept feature to L.O. Defendant
then went to his room and told L.O. to check the angle on the
webcam. L.O. testified that he saw defendant walk around his
room and move his computer until T.C.'s bed came squarely into
view. Defendant then returned to L.O.'s room, grabbed his bag,
and left.
L.O. also left to attend an evening class, but returned to
his room around 9:30 p.m. Remembering what defendant said was
happening, he clicked on defendant's video chat "thinking that I
would maybe get a glimpse." An error message came up, however,
and he could not connect to defendant's webcam. L.O. saw
defendant in the lounge around 11:00 p.m. and told him that the
19 A-4667-11T1
video did not work. Defendant replied: "Yeah, I've been
getting that from a lot of people." L.O. testified that
defendant had never made any disparaging comments or homophobic
remarks about T.C. In fact, L.O. claimed defendant described
T.C. as "a nice guy." However, L.O. recalled that defendant
genuinely seemed shocked when he told him about what he had seen
T.C. doing on the previous Sunday evening.
A.A. also saw defendant on Tuesday evening, September 21,
2010. Defendant told A.A. that T.C. had asked for the room that
night and commented: "[T]hey're at it again." Defendant
wondered where he would sleep if T.C.'s guest was going to be
there the entire night; he was also not sure he wanted to go
back to the room anyway.
S.X. was also a member of the Rutgers Ultimate Frisbee
Club. He testified that defendant told him about what had
happened on Sunday while they were at the Tuesday evening
practice. Defendant told S.X. that T.C. had asked for the room
again that night. S.X. testified that defendant was very
knowledgeable about computers. He liked to brag about what he
could do to people using his computer. That Tuesday, he told
team members that he had set up his webcam to view T.C.'s
expected homosexual encounter, and he explained how they could
watch the interaction from their own computers.
20 A-4667-11T1
G.I. was the captain of the Rutgers Ultimate Frisbee Club.
Defendant had spoken to him about T.C. on multiple occasions
specifically mentioning that he suspected that T.C. might be
gay. Based on defendant's demeanor, G.I. believed defendant was
"uncomfortable with the situation." G.I. made clear, however,
that defendant never said anything disparaging or malicious
about T.C.
After the Frisbee Club completed its Tuesday night
practice, defendant, G.I., and a few other teammates went to the
cafeteria. While they were waiting for their food, defendant
told them that he had set up a webcam to capture images of his
roommate and his roommate's male guest. Defendant told them
that he had done it before and that he intended to do it again
that evening.
M.H., a high school classmate of defendant, was attending
Cornell University in the fall of 2010. She kept in touch with
defendant through Facebook, iChat, Twitter, and text messaging.
She had seen defendant's tweets from Sunday, September 19, 2010,
and Tuesday, September 21, 2010; M.H. and defendant discussed
the content of these electronic messages in a series of texts
starting on September 21, 2010. M.H. gave law enforcement
investigators permission to photograph the messages on her
phone; she also identified and authenticated them at trial.
21 A-4667-11T1
On September 21, 2010, at 1:46 p.m., M.H. and defendant
engaged in the following electronic exchange via text messages.
We quote the text messages verbatim, without noting any
grammatical deviations or spelling errors:
M.H.: hahahahha your gay roomie that. . .
did you really see him make out with some
guy lmao[11]
DEFENDANT: Yeahh omg[12] [M.W.] saw it too.
He was older and creepy and def from the
internet
The following exchange then took place:
M.H.: that's so nastyyy ew watch out he
might come for you when you're sleeping!
hahaha jk
DEFENDANT: Omg everyone keeps telling me
that. I haven't seen him since then
M.H.: hahaha good luck with thatt
DEFENDANT: He just texted me asking when I
was coming home omg.
M.H.: maybe his gay friend is in your Ed
bed*
DEFENDANT: I set my computer to alert me if
anyone is in it when I'm not there LOL
M.H.: really?? how lmao that's so cool
11
"Lmao" stands for "laughing my ass off."
12
"Omg" stands for "oh my God."
22 A-4667-11T1
DEFENDANT: My webcam checks my bed hahaha.
I got so creeped out after sunday
M.H.: hahaha that's so crazy
DEFENDANT: Yeah keep the gays away
M.H.: I saw a lesbian Asian couple today
but they were like nerdy fobby asian and it
was gross
DEFENDANT: Ewwww. When we were in ny we saw
two guys making out on a stoop
M.H.: NY that's pretty normal though hahha
one of my friends is this gay Asian guy who
has his ear pierced lol
I mean bellybutton pierced*
Later, at 6:41 p.m. on September 21, 2010, defendant texted
M.H. the following: "Do it forreal I have it pointed at his bed.
And the monitor is off so he can't see you." When M.H. asked
how defendant could accept the video chat, he replied: "It's
set to automatically accept. I just tested it and it works
lol[.]" At 7:03 p.m. defendant texted: "Be careful it could get
nasty . . . Mad people are gonna do it[.]" At 8:41 p.m. he
texted: "Omfg[13] people are having a viewing party with a bottle
of bacardi and beer in this kids room for my roommate."
(Emphasis added). M.H. testified that she did not attempt to
video chat defendant on Tuesday. On September 22, 2010, she
13
"Omfg" stands for "Oh my fucking God."
23 A-4667-11T1
texted defendant, "I didn't do it. How was it last night?
Hahaha." Defendant replied, "It got messed up and didn't work
LOL."
C
M.B.
M.B. was the man who visited T.C. on September 19 and 21,
2010. He met T.C. towards the end of August 2010 on a social
networking site for gay men. He was thirty years old at the
time. M.B. and T.C. communicated for a couple of weeks through
email, instant messaging, and texting before arranging to meet
at T.C.'s dorm room. They met for the first time on Thursday,
September 16, 2010. At first, M.B. called T.C. to meet him on
the street because M.B. had difficulty finding Davidson Hall.
T.C. took him to his room around 10:00 p.m., and M.B. stayed
until 2:00 a.m.
M.B. next met T.C. on Sunday, September 19, 2010. He
arrived around 9:30 p.m. and T.C. again took him to his room.
Defendant was in the room when T.C. and M.B. arrived. M.B.
testified that he said "a quick hi" to defendant; "I really
wasn't engaging him in any conversation or anything." T.C. did
not make any attempt to introduce M.B. to defendant. M.B.
testified that defendant left the room but "came back rather
quickly." On cross-examination, M.B. stated that T.C. locked
24 A-4667-11T1
the door as soon as defendant left the room. Defendant knocked
on the door "five to ten seconds" later, requiring T.C. to
unlock and open the door. Defendant went to his desk, shuffled
"some papers" around, and walked out. He did not return.
M.B. initially testified that he was in T.C.'s room for
about two hours. However, he later acknowledged that
surveillance cameras in the dorm hallway showed he was there
only for approximately forty-five minutes. M.B. had "sexual
relations" with T.C. In response to defense counsel's questions
on cross-examination, M.B. stated that both T.C. and he were
naked, and that the "sexual relations" involved "sexual contact
and sexual penetration." Defense counsel asked M.B. if he had
"any other recollection about anything that might have occurred
on that night before [he] left[.]" M.B. gave the following
response:
Well, . . . while we were intimate together
on the bed[,] I had just glanced over my
shoulder and I had noticed that there was a
webcam that was faced towards the direction
of the bed[,] and I just thought it was kind
of strange, you know, just being in a
compromising . . . position [and] seeing a
camera lens. I guess it just stuck out to
me that . . . if you were sitting at a desk
using that computer, that camera wouldn't be
facing that direction. It would be facing
towards the person using the computer.
M.B. clarified that he did not make this observation when he
first came into the room.
25 A-4667-11T1
When M.B. left the dorm building that night, he saw a group
of five people standing in a corner and looking at him. He
described the experience as "unsettling." He "felt
uncomfortable because they were staring at me and they were
looking at me in an odd way." He saw T.C. again on Tuesday,
September 21, 2010. This time, there was no one else in the
dorm room. They again engaged in "sexual relations." In the
course of cross-examination, M.B. also confirmed that he did not
see "anything pointed out to [him]." When asked to clarify,
M.B. stated, "[F]rom the experience on the 19th . . . I didn't
see the webcam on top of the computer." M.B. testified that he
did not know what had happened to T.C. until he read about it in
the newspaper. This was also the time that he learned T.C.'s
last name.
D
T.C.
A forensic examination of T.C.'s computer performed by Gary
Charydczak, an Investigator with the Middlesex County
Prosecutor's Office, revealed that T.C. visited defendant's
Twitter account fifty-nine times between September 13, 2010, and
September 22, 2010. T.C. captured several screen shots of
defendant's tweets, including defendant's September 19, 2010,
tweet that stated defendant had seen T.C. "making out with a
26 A-4667-11T1
dude," and defendant's September 21, 2010, tweet daring "people
to video chat [him] between 9:30 [p.m.] and 12 [a.m.]."
At 3:55 a.m. on September 21, 2010, T.C. submitted a room
change application to Rutgers' Residence Life Assignments
Office. In the section of the application requiring to state
the reason why he wanted a single room, T.C. wrote: "roommate
used webcam to spy on me/want a single room." Raahi Grover, a
residence assistant at Davidson Hall C, testified that he
interacted with defendant at social gatherings and spoke to him
in the hallway and in the dorm lounge.
On the other hand, Grover knew T.C. "strictly by face."
The only time he spoke to him was at 11 p.m. on September 21,
2010. Grover testified that he was alone in his dorm room when
T.C. knocked on the door. Grover further testified that he
could tell from the tone of T.C.'s voice that he was
uncomfortable. He thus asked T.C. to come inside and closed the
door to allow him to speak freely in private. T.C. told Grover
about an incident involving defendant. Based on T.C.'s account
of what had allegedly occurred, Grover decided that the matter
required the involvement of senior management.
Grover asked T.C. to send him an email describing the
situation. Grover told T.C. that he would use the information
disclosed in the email to file an incident report in Rutgers'
27 A-4667-11T1
internal information sharing system called "Symplicity." As
Grover explained, "That report is accessible to Senior
Management who will take actions based on what the report has in
it." Grover also extended T.C. an invitation to stay on an
extra bed in his room if T.C. felt uncomfortable returning to
his own dorm room. T.C. declined. Surveillance footage shows
that T.C. was in Grover's room for approximately five minutes.
Grover characterized the matter as a "roommate conflict" in
the Symplicity incident report he filed. Under the heading of
"incident description," Grover wrote: "A resident in Davidson
C, [T.C.], approached me today (9/21/2010) at 11:00 PM to
discuss an issue on a violation of privacy against his roommate,
Dharun Ravi. [T.C.] has took [sic] the liberty to write an
email describing the incident." Grover then quoted the email
sent to him by T.C. in full. The trial court redacted this
document to delete some of the hearsay information reflected in
T.C.'s email.
The final document the jury received in evidence contains
the following statement written by T.C.: "I feel my privacy has
been violated and I am extremely uncomfortable sharing a room
with someone who would act in this . . . manner." The report
continued with this statement written by Grover: "[T.C.] is
quite upset and feels uncomfortable. [T.C.] prefers a roommate
28 A-4667-11T1
switch ASAP and would like to see some sort of punishment for
Dharun Ravi."
On the afternoon of Wednesday, September 22, 2010, Grover
notified defendant regarding T.C.'s allegations that defendant
had violated his privacy. Based on the information provided by
T.C., a formal incident report had been filed and defendant was
informed that he should expect to hear from senior management
about the matter. After speaking with Grover, defendant
accessed his Twitter account and deleted the September 19 and
21, 2010 postings concerning T.C. Defendant then tweeted:
"Roommate asked for room again. It's happening again. People
with iChat, don't you dare video chat me from 9:30 to 12;" and
"Everyone ignore that last tweet. Stupid drafts."
At 8:46 p.m., defendant sent T.C. the following text:
I want to explain what happened. Sunday
night when you requested to have someone
over I didn't realize you wanted the room in
private. I went to [M.W.'s] room and I was
showing her how I set up my computer so I
can access it from anywhere. I turned on my
camera and saw you in the corner of the
screen and I immediately closed it. I felt
uncomfortable and guilty of what happened.
Obviously I told people what occurred so
they could give me advice. Then [T]uesday
when you requested the room again I wanted
to make sure what happened [S]unday wouldn't
happen again. I went on twitter to let my
friends know you wanted the room again and
not to video chat me from 930 to 12. Just
in case, I turned my camera away and put my
computer to sleep so even if anyone tried it
29 A-4667-11T1
wouldn't work. I wanted to make amends for
[S]unday night. I'm sorry if you heard
something distorted and disturbing but I
assure you all my actions were good natured.
I've known you were gay and I have no
problem with it. In fact one of my closest
friends is gay and he and I have a very open
relationship. I just suspected you were shy
about it which is why I never broached the
topic. I don't want your freshman year to
be ruined because of a petty
misunderstanding, it's adding to my guilt.
You have the right to move if you wish but I
don't want you to feel pressured to without
fully understanding the situation.
On September 22, 2010, shortly after defendant sent this
text message, T.C. wrote on his Facebook page: "I'm going to
jump off the GW Bridge. Sorry."
E
The Investigation
At 9:30 p.m. on Wednesday, September 22, 2010, Rutgers
Police Officer Christopher Kowalczyk was dispatched to conduct a
welfare check on T.C. Kowalczyk first went to T.C.'s dorm room,
where he found defendant there alone. Defendant said his last
contact with T.C. had been at about 4:35 p.m. that day, when
T.C. returned from class, dropped off his backpack, and left
without saying where he was going. Defendant told Kowalczyk
that T.C. had a guest sleep over on Sunday night and described
the man as slightly overweight with a scruffy beard. Defendant
thought T.C. and the man were involved in an intimate
30 A-4667-11T1
relationship.
Around 1 a.m. on Thursday, September 24, 2010, Rutgers
administrators learned that T.C. had committed suicide by
jumping off of the George Washington Bridge. At approximately 9
a.m. that day, the Assistant Director of the Busch Campus, a
representative of the Psychology Department, and Resident
Assistant Grover went to defendant's room to inform him of what
had occurred. They asked defendant to contact his parents and
go home for a few days.
Later that afternoon, defendant texted M.H.: "My roommate
committed suicide." He told her that he would stay home "until
it blows over. The cops came to my room last night looking for
him. And a bunch of counselors told me this morning. . . .
They're being mad helpful." When M.H. asked defendant if he
knew what caused T.C. to take his own life, defendant responded:
"No idea. He was quiet all the time and had no friends so I
guess it makes sense." M.H. appeared surprised about
defendant's statement: "I thought he had friends. Didn't you
say there was like a viewing party once and didn't he have
another guy or something?" (Emphasis added). Defendant quickly
attempted to disavow his earlier tweet: "No that was a joke. I
told the counselors everything that happened on Sunday and
Tuesday." Defendant then asked M.H. to delete something S.X. had
31 A-4667-11T1
posted that was negative about T.C.; M.H. agreed to do so.
Douglas Rager, who at the time was a detective with the
Rutgers University Police Department, testified that on
Thursday, September 23, 2010, he seized evidence from the dorm
room shared by T.C. and defendant. He and Investigator Michael
Daniewicz from the Middlesex County Prosecutor's Office picked
M.W. up later that afternoon and took her to the Rutgers Police
Department for questioning. M.W. testified that when university
police officers picked her up in an unmarked car, she became
nervous and told A.C. through text message that he should call
the police if he did not hear from her by 10 p.m. that night.
M.W. did not answer A.C.'s subsequent calls. When A.C. called
defendant to find out what was happening, defendant told A.C.
that he would try to contact her directly.
Defendant phoned M.W. while she was in a conference room at
police headquarters. M.W. told him that she could not speak to
him and hung up. Defendant then texted M.W. and the following
exchange ensued. Once again, we are quoting the exchange
verbatim, deliberately leaving misspellings and grammatical
deviations unaltered:
[DEFENDANT]: Did you tell them [police] we
did it on purpose?
[M.W.]: Yeah. . . well that we didn't know
what we were gonna see
32 A-4667-11T1
Where is [T.C.]. . .
[DEFENDANT]: Because I said we were just
messing around with the camera. He told me
he wanted to have a friend over and I didn't
realize they wanted to be all private.
[M.W.]: Omg dharun why didn't u talk to me
first i told them everything
[DEFENDANT]: Like what
[M.W.]: Like literally everything bcu they
asked me to tell them exactly what happened
[DEFENDANT]: What did you tell them when
they asked why we turned it on
[M.W.]: I said we just wanted to see what
was going on
[DEFENDANT]: And you said we closed it
immediately?
[M.W.]: Yes
[DEFENDANT]: Okay.
[M.W.]: I'm scared . . . wtf is going on. . .
[DEFENDANT]: Nothing I'm at home.
What did they tell you?
[M.W.]: What so why are [they] asking all
these questions . . . and they told me
nothing!
[DEFENDANT]: Ok don't worry you're not in
trouble.
Did you say anything about Tuesday because I
turned off my computer that day
[M.W.]: Aiya still
33 A-4667-11T1
[Tuesday]? Idk[14] whT happened that day
[DEFENDANT]: Nothing happened
[M.W.]: Ok LOL
[DEFENDANT]: But rumors got started
[M.W.]: Wtf? Like what. . . and did [T.C.]
find out is that why the police are asking
question/s?
[DEFENDANT]: He thought people were
watching him tuesday.
Investigator Daniewicz testified that about halfway through
M.W.'s interview, he excused himself from the room. When he
returned, he asked M.W. when she last had contact with
defendant. She replied that she had spoken to him a few minutes
earlier. With M.W.'s consent, Daniewicz made a hard copy of her
text exchange with defendant.
After questioning M.W., Rager and Daniewicz drove to the
Ravi residence where they met with defendant's parents.
Defendant agreed to accompany the law enforcement agents back to
the Rutgers Police headquarters for further questioning. After
waiving his Miranda15 rights, defendant gave the officers his
cellphone and agreed to answer all of their questions. The
videotape of defendant's interrogation was played for the jury.
14
"Idk" stands for "I don't know."
15
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602,
1612, 16 L. Ed. 2d 694, 707 (1966).
34 A-4667-11T1
In his statement, defendant downplayed the exuberance he
displayed in the tweets and texts he sent and omitted the
homophobic statements he candidly included in these electronic
messages. He emphasized that M.B.'s age and appearance was
outside the norm of a typical college student. "He didn't seem
like a student here[;] he seem[ed] kind of older and he look[ed]
kind of weird. Honestly, . . . I didn't know who he was, [and I
was] a little worried about it."
For the first time, defendant stated that he was concerned
for "his valuables." He wanted to check to make sure T.C. and
his guest "were not going through his stuff." Thus, he
suggested to M.W. to setup the means to watch clandestinely what
was taking place behind the closed door of the dorm room. He
explained that he had had his computer set up to automatically
accept video chats for some time. Without reciting at length
the forty-four page interrogation document, we can safely
summarize its content as a poorly executed attempt by defendant
to sanitize his motives for using his knowledge of computers to
surreptitiously observe T.C. and M.B. engaged in sexual
relations.
Defendant told the investigators that he was not aware that
T.C. was reading his tweets. He suspected T.C. may have heard
something, however, because he reported the matter to Resident
35 A-4667-11T1
Assistant Grover. Defendant claimed he deleted the September 19
and 21, 2010, tweets after Grover spoke to him on Wednesday
"because otherwise they can be interpreted like ambiguously."
He tweeted "stupid drafts" because he accidently sent "a draft"
of the September 21, 2010 tweet when he was deleting the other
two.
Timothy Edward Hayes, a security analyst with Rutgers'
Information Technology Department, testified to explain how
Rutgers students connect to the Internet. He examined the
activity that took place on defendant's computer on September
21, 2010. Hayes also identified two iChat sessions — one with
L.O.'s computer at 6:58 p.m. and one with A.A.'s computer at
7:44 p.m. Looking at activity between the hours of 7 p.m. and
midnight, there was a "glaringly obvious hole in the middle"
where there was no data at all from defendant's computer. The
only explanation for this is that defendant's computer was
turned off from about 9:25 p.m. until 11:19 p.m.
In his defense, defendant presented seven character
witnesses. These witnesses consistently testified to never
having heard defendant make any derogatory statements about
homosexuals.
36 A-4667-11T1
II
Against this factual record, defendant raises the following
arguments:
POINT I
THE TRIAL COURT SHOULD HAVE GRANTED
DEFENDANT'S MOTIONS FOR ACQUITTAL. (raised
below)
A. COUNT 1, Invasion of Privacy.
B. COUNT 3, Invasion of Privacy.
C. COUNT 5, Attempted Invasion of
Privacy.
D. COUNT 7, Attempted Invasion of
Privacy.
E. COUNTS 2, 4, 6, and 8, Bias
Intimidation.
F. COUNT 12, Hindering
Apprehension.
POINT II
THE TRIAL COURT'S FINAL CHARGE TO THE JURY
DEPRIVED DEFENDANT OF A FAIR TRIAL. (not
raised below)
A. The court gave no limiting instruction of
T.C.'s suicide.
B. The court failed to properly emphasize
the State's burden of proof.
C. The separate offenses were improperly
blended together.
37 A-4667-11T1
POINT III
THE BIAS INTIMIDATION CONVICTIONS THAT ARE
NOT BASED ON PURPOSEFUL CONDUCT MUST BE
VACATED (counts 2 and 4). (not raised below)
POINT IV
THE TRIAL COURT'S CHARGE ON COUNTS 1 AND 5
WAS ERRONEOUS AND PREJUDICIAL. (not raised
below)
POINT V
DEFENDANT SHOULD HAVE BEEN PERMITTED TO
IMPEACH M.B.'S CREDIBILITY ON CROSS-
EXAMINATION WITH HIS PRIOR CONVICTIONS AND
FALSE CERTIFICATION. (raised below)
POINT VI
DEFENDANT WAS DENIED HIS RIGHT TO A PUBLIC
TRIAL WHEN THE TRIAL COURT REFUSED TO ALLOW
ARGUMENT ON M.B.'S PRIOR CONVICTIONS IN OPEN
COURT. (raised below)
POINT VII
THE ADMISSION OF RAAHI GROVER'S INCIDENT
REPORT, WITH T.C.'S REDACTED EMAIL, VIOLATED
DEFENDANT'S RIGHT TO CONFRONTATION. (raised
below)
POINT VIII
DEFENDANT WAS PREJUDICED BY THE DENIAL OF
PRE-TRIAL DISCOVERY. (raised below)
A. Complete copies of the forensic
images of T.C.'s computer.
B. All reports from the Port
Authority Police Department.
C. Copies of evidence item #11.
38 A-4667-11T1
D. Copies of three specific
documents.
POINT IX
THE INDICTMENT SHOULD HAVE BEEN DISMISSED
FOR AN INADEQUATE GRAND JURY VOID [SIC] DIRE
REGARDING PRETRIAL PUBLICITY. (raised
below)
The bulk of our analysis will be dedicated to determining
whether the evidence of T.C.'s state of mind irreparably tainted
the jury's verdict as a whole. Defendant argues that all of his
convictions must be vacated because they were irreparably
tainted by highly prejudicial evidence admitted solely to
support the charges under N.J.S.A. 2C:16-1(a)(3). Defendant
points out that to meet its burden of proof under N.J.S.A.
2C:16-1(a)(3), the State presented evidence from a variety of
sources that revealed the intimidation and humiliation T.C. felt
as a result of defendant's conduct. Defendant asserts that
"there is simply no way for this Court to conclude that such
evidence did not have the clear capacity to taint all of the
guilty verdicts in this case."
The State argues that the Supreme Court's holding in
Pomianek does not disturb defendant's conviction on any count
other than those directly predicated on N.J.S.A. 2C:16-1(a)(3)
as a basis for criminal culpability. According to the State,
defendant's convictions on the tampering and hindering counts,
39 A-4667-11T1
six of which defendant did not challenge on appeal, must be
affirmed. The State argues that T.C.'s state of mind, including
the email to the Resident Assistant and T.C.'s incessant
checking of defendant's Twitter account, were admissible
independent of N.J.S.A. 2C:16-1(a)(3), because they relate to an
element of the charge of invasion of privacy under N.J.S.A.
2C:14-9(a) and (c), to wit, establishing that T.C. did not
consent to being viewed having sexual relations with M.B. We
are not persuaded by the State's arguments.
To warrant the reversal of a jury verdict in cases in which
admitted evidence implicates a constitutional right, the
reviewing court must determine whether the alleged error was
"harmless beyond a reasonable doubt." State v. Weaver, 219 N.J.
131, 154 (2014) (quoting Chapman v. California, 386 U.S. 18, 24,
87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)).
Pomianek's holding implicates defendant's constitutional rights
under the Due Process Clause of the Fourteenth Amendment because
it rendered inadmissible the evidence adduced at trial relating
to N.J.S.A. 2C:16-1(a)(3). Pomianek, supra, 221 N.J. at 70.
Here, the State's case was predicated on accomplishing two
objectives: (1) to show defendant was a homophobic, computer
savvy young man who combined these two features of his character
to prey upon his socially awkward, gay roommate; and (2) to
40 A-4667-11T1
humanize T.C. by showing how defendant's misconduct affected
T.C.'s life (as described by Grover, the Resident Assistant who
testified that T.C. requested a room change "ASAP," and produced
evidence of T.C.'s incessant monitoring of defendant's Twitter
account during the critical days preceding his death). 16 These
were the twin pillars of the State's case. The Supreme Court's
holding in Pomianek undermined the evidential foundation of the
second pillar. Stated differently, admission of T.C.'s state of
mind evidence constituted an error "of such a nature to have
been clearly capable of producing an unjust result." R. 2:10-2.
The verdict sheet given to the jury by the trial court
contained charges arising from the crime of second and third
degree bias intimidation, defined in N.J.S.A. 2C:16-1(a)(3), as
reflected in counts 2, 4, 6, and 8 of the indictment. The jury
returned a verdict finding defendant guilty on all charges.
N.J.S.A. 2C:16-1(a)(3) defines third degree bias intimidation as
follows:
16
Although not a formal part of the case, the trial judge
informed all prospective jurors during voir dire that T.C.
committed suicide and that defendant was not charged with either
causing or contributing to his death. T.C.'s suicide was also
mentioned during the course of the trial. In cross-examining
M.H., defense counsel elicited testimony about texts that
referred to T.C.'s suicide. The attorneys did not request that
the court include a jury charge addressing T.C.'s suicide, and
the trial judge did not include such a charge sua sponte as part
of his charges to the jury.
41 A-4667-11T1
A person is guilty of the crime of bias
intimidation if he [or she] commits,
attempts to commit, conspires with another
to commit, or threatens the immediate
commission of an offense specified in
chapters 11 through 18 of Title 2C of the
New Jersey Statutes; [N.J.S.A. 2C:33-4]
[N.J.S.A. 2C:39-3]; [N.J.S.A. 2C:39-4]; or
[N.J.S.A. 2C:39-5],
. . . .
(3) under circumstances that caused any
victim of the underlying offenses to be
intimidated and the victim, considering the
manner in which the offense was committed,
reasonably believed either that (a) the
offense was committed with a purpose to
intimidate the victim or any person or
entity in whose welfare the victim is
interested because of race, color, religion,
gender, disability, sexual orientation,
gender identity or expression, national
origin, or ethnicity, or (b) the victim or
the victim's property was selected to be the
target of the offense because of the
victim's race, color, religion, gender,
disability, sexual orientation, gender
identity or expression, national origin, or
ethnicity.
[(Emphasis added).]
In Pomianek, the Supreme Court held that N.J.S.A. 2C:16-
1(a)(3) violated the Due Process Clause of the Fourteenth
Amendment because it focused "on the victim's perception and not
the defendant's intent." Pomianek, supra, 221 N.J. at 70.
Here, the State presented evidence that focused exclusively on
T.C.'s perception of defendant's conduct, not defendant's
intent. The Supreme Court explained in Pomianek the inherent
42 A-4667-11T1
danger of permitting a jury to consider evidence that focuses
only on the victim's state of mind:
Unlike subsections (a)(1) and (a)(2),
subsection (a)(3) focuses not on the state
of mind of the accused, but rather on the
victim's perception of the accused's
motivation for committing the offense.
Thus, if the victim reasonably believed that
the defendant committed the offense of
harassment with the purpose to intimidate or
target him [or her] based on his [or her]
race or color, the defendant is guilty of
bias intimidation. N.J.S.A. 2C:16-1(a)(3).
Under subsection (a)(3), a defendant may be
found guilty of bias intimidation even if he
[or she] had no purpose to intimidate or
knowledge that his [or her] conduct would
intimidate a person because of his [or her]
race or color. In other words, an innocent
state of mind is not a defense to a
subsection (a)(3) prosecution; the defendant
is culpable for his [or her] words or
conduct that led to the victim's reasonable
perception even if that perception is
mistaken.
[Id. at 82.]
Here, the State presented substantial evidence of T.C.'s
state of mind as a means of establishing defendant's guilt.
Grover's testimony in particular focused on T.C.'s demeanor on
September 21, 2010, when he first had contact with him. Even
after redaction, the email T.C. wrote to Grover that same
evening attributes his distress to defendant's tweets. The
Rutgers administrator testified that T.C. submitted a request
for a room change, citing concerns about his roommate using his
43 A-4667-11T1
webcam to spy on him. A forensic investigator testified that
T.C. visited defendant's Twitter account fifty-nine times
between September 13 and September 22, 2010. M.B. stated that
T.C. had a "visible reaction" to the sound of laughter in the
courtyard outside his room and was troubled by a gap in the
window blinds that might have allowed someone to see inside.
There was no evidence that defendant ever attempted to see T.C.
and M.B. through a window.
The State argues that this evidence was relevant to the
question of whether T.C. consented to defendant's observations
of himself and M.B. under N.J.R.E. 401. The State also argues
that the redacted portion of T.C.'s email was admissible under
the "then existing state of mind" exception to the rule against
hearsay, N.J.R.E. 803(c)(3). Even if this evidence may have had
a broad relevance on such limited grounds, N.J.R.E. 402, we are
satisfied that under a post-Pomianek analytical framework, the
trial judge would have found under N.J.R.E. 403 that the
prejudicial effect of admitting this evidence would far exceed
its probative value. Ultimately, however, this is a non-issue
because defendant never claimed that he had T.C.'s consent to
use the webcam to watch him having sexual relations with M.B.
The trial court engaged in an N.J.R.E. 403 analysis by
weighing the relevance of the evidence as it related to the
44 A-4667-11T1
N.J.S.A. 2C:16-1(a)(3) charges, but it did not balance the
probative value of the evidence under N.J.S.A. 2C:14-9. If it
had, it is highly unlikely that it would have found the evidence
admissible because defendant has never claimed he had consent as
an affirmative defense to the charge of invasion of privacy.
Defendant has never claimed that T.C. was aware that the webcam
was transmitting video from inside the room. M.W.'s testimony
that she and defendant viewed T.C. surreptitiously was
uncontroverted.
It is undisputed that constitutionally defective evidence
of T.C.'s state of mind permeated the State's entire case
against defendant. Indeed, this evidence was one of the focal
points of the prosecutor's summation to the jury.
Now . . . we come to [T.C.]. You hear
about the fact that [T.C.] at some point
starts to go on to the defendant's Twitter
page[,] and in the course of going on the
defendant's Twitter page at various points
in time, . . . what does he discover? He
discovers . . . the tweet from the 19th,
[September 2010], the tweet that said
["]roommate asked for room.["] And when he
finds that tweet[,] what does he do? You
hear from Bill O'Brien from the Rutgers
University Housing Department that at 3:55
a.m.[,] [T.C.] has filed an online room
change request through the automated system.
So just a little while after viewing that
tweet and discovering it[,] he makes an
online request for a room change. He also
discovers [at] about 9:15 that night -- just
a little bit before his guest M.B. is going
to arrive -- the tweet from that evening,
45 A-4667-11T1
the tweet that's sent out after he texted
his roommate again and asks for . . .
permission to use the room . . . for some
private time. And the defendant tells
him[,]["][Y]eah, no problem.["] He finds
out about that second tweet.
And I suggest to you, ladies and
gentlemen, the online room change request at
that point was not going to be something
that was good enough -- not something that
he could wait for. So what does he do? He
goes to see one of the resident assistants
at the dorm. And you heard from that
resident assistant, Raahi Grover, who came
in here and testified. He tells you about
[T.C.][,] who he doesn't really know that
well. . . . But [T.C.] shows up at his room.
And what does he tell you about [T.C.]'s
demeanor at that point? He tells you he
seems uncomfortable[;] he seems to be upset
about the information . . . and [he] makes a
request . . . for a room change. Raahi
Grover was a resident assistant at Rutgers
University for three years[.] [H]e told you
. . . he never had encountered . . . a
situation like this[,] and because of that
situation[,] he asks [T.C.] to put in his
own words what he had just told him [and to]
send it to him in an email so that he can
put it into a report that he then . . .
choose[s] to file . . . with his supervisors
so that immediate action can be taken. And
he tells you in his own words, in his own
thoughts, that once he hears what [T.C.]
tells him[,] he wants the situation to be
brought to his supervisor's attention. He
wants that situation to be escalated . . .
because he knew the seriousness of it, and
he files that incident report form and part
of that incident report form has [T.C.]'s
own words[:] "I feel that my privacy has
been violated and I am extremely
uncomfortable sharing a room with someone
who would act in this manner." And then
Raahi Grover puts down at the bottom, as
included in his incident report, ["][T.C.]
46 A-4667-11T1
is quite upset and feels uncomfortable.
[T.C.] prefers a roommate switch ASAP and
would like to see [some] sort of punishment
for Dharun Ravi.["]
. . . .
I just want to go back for a moment,
ladies and gentlemen, to the screen shots
that you saw about those Twitter messages.
Remember that you heard testimony that the
computer of [T.C.] was examined and that's
where those screen shots were found. Those
[shots] were taken by [T.C.] to memorialize
what he saw on the Twitter page. So I ask
you to think about . . . when [T.C.] first
viewed . . . the first Twitter message that
he saw. He saw that at approximately one
o'clock in the morning when he took the
screen shot. Maybe he saw it sometime
before and then decided to take the screen
shot later.
Think about the situation of [T.C.].
You've heard just about every person that's
come into this courtroom to testify that
[T.C.] was quiet[;] he was shy. Maybe he
wasn't as social as the kids [who] hung out
in the lounge, the kids [who] played pool,
[or] the kids [who] all went to the dining
hall together. Three weeks into his college
experience[,] and he finds out that his
sexual orientation has been broadcast to the
defendant's Twitter followers. He finds out
his private sexual activity has been
exposed. He knows it's been exposed. It's
been exposed at least to [M.W.]. It's been
exposed by words in that tweet. And what do
you think he's thinking? If [M.W.] saw
it[,] did [C.C.] see it? Did other people
[i]n that hallway see it? Did people on the
other side of Davidson C see it? Did other
people [who] hang out in the lounge come
down and see it? You don't think that he
was intimidated by learning that
information[?] [F]earful[?] [E]mbarrassed?
He'd been exposed[.] [N]ot only his being,
47 A-4667-11T1
his identity, his sexual orientation, but
his private sexual activity was exposed
also. And then . . . you go back to that .
. . documentation about how many times he
checked that Twitter page from September
13th till the 19th. . . . What was he
checking for?
[(Emphasis added.)]
As this lengthy verbatim recitation of the prosecutor's
closing argument to the jury shows, the second pillar of the
State's case expressly relied on evidence describing the victim
feeling humiliated and embarrassed as indicative of defendant's
state of mind; the suggested inference is that defendant must
have acted with the intent to intimidate because the evidence
shows T.C. in fact felt embarrassed and humiliated. It would be
unreasonable to conclude that this evidence, coupled with the
prosecutor's strong and eloquent remarks, did not have the clear
capacity to produce an unjust result.
Reversing a jury verdict based on "trial error 'implies
nothing with respect to the guilt or innocence of the defendant'
but rather 'is a determination that a defendant has been
convicted through a judicial process which is defective in some
fundamental respect.'" State v. Gibson, 219 N.J. 227, 244
(2014) (quoting Burks v. United States, 437 U.S. 1, 15, 98 S.
Ct. 2141, 2149, 57 L. Ed. 2d 1, 12 (1978)). The standard that
governs our review of all criminal trials is fairness. "A
48 A-4667-11T1
defendant is entitled to a fair trial but not a perfect one."
State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v.
United States, 344 U.S. 604, 619, 73 S. Ct. 481, 492, 97 L. Ed.
593, 606 (1953)).
The case against defendant in this trial was replete with
evidence presented by the State to support the charges of bias
intimidation under N.J.S.A. 2C:16-1(a)(3). The State asked the
jury to return a guilty verdict as to all fifteen counts in the
indictment. The jury deliberated and returned a unanimous
verdict guided by then legally sound instructions given by the
judge. Any attempt to filter out the influence exerted by the
evidence pertaining to N.J.S.A. 2C:16-1(a)(3) would be as futile
as using a cloth strainer to remove the adulteration caused when
a tablespoon of ink is dropped into a glass of milk. We can
never be reasonably confident that the verdict produced was free
from the adulterated influence of the inadmissible evidence.
III
A
Hindering Apprehension
Defendant argues that the trial judge erred in denying his
motion for a judgment of acquittal on Count 12, charging him
with second degree hindering apprehension in violation of
N.J.S.A. 2C:29-3(b)(3), because the State failed to present
49 A-4667-11T1
competent evidence showing that the texts messages sent by
defendant affected the information M.W. gave to the law
enforcement officers who questioned her that day.
The hindering apprehension charge reflected in Count 12 is
predicated on the texts exchanged between M.W. and defendant on
September 23, 2010. On that day, M.W. was picked up by Rutgers
University Detective Rager and Middlesex County Prosecutor
Investigator Daniewicz and transported to the Rutgers Police
Department for questioning. Defendant also argues the trial
court erred by allowing the State to rely on these same facts to
charge defendant under Count 14 with third degree witness
tampering, as defined in N.J.S.A. 2C:28—5(a)(1) and/or (2).
Defendant raised these two legal issues in pretrial motions
and after the State rested its case in the form of a motion for
a Judgment of Acquittal, pursuant to Rule 3:18-1. In denying
defendant's motion, the trial judge made the following
statement:
[Y]ou theoretically can hinder
something before you're aware of an
investigation. And in theory, once you're
aware it's been launched or initiated, you
can tamper with it.
Having said that, it also seems to me
that the same course of conduct underlies
both charges. It seems to me that's really
an issue of merger at a later point. But at
this point I think they both have to
survive.
50 A-4667-11T1
We disagree. Counts 12 and 14 were both based on the text
exchange that occurred between defendant and M.W. on September
23, 2010, while M.W. was in an interrogation room at the Rutgers
Police Department. We have described in detail the confluence
of events that led defendant to text M.W. while she was still in
the headquarters of the University Police. The record shows,
and the State does not dispute, that the exchange of text
messages between M.W. and defendant occurred after M.W. had
given her statement to the law enforcement investigators.
Through these text messages, defendant asked M.W. what she
had told the police and suggested that she characterize what he
did to his laptop webcam as merely "messing around with the
camera." According to defendant, T.C. "wanted to have a friend
over and [he] didn't realize they wanted to be all private."
However, M.W. made clear to defendant that she had told the
police interrogators all that occurred on Sunday night,
September 19, 2010. Stated in the vernacular of this form of
electronic communication, M.W. stated the following:
I told them everything . . . Like literally
everything bcu (sic) they asked me to tell
them exactly what happened.
Defendant then brought up the events of Tuesday night, September
21, 2010 and suggested that M.W. tell the investigators: "I
turned off my computer that day." M.W. replied that she did not
51 A-4667-11T1
know anything about Tuesday night. Again, quoting her actual
words, M.W. stated, "Idk whT happened that day[.]"
At trial, M.W. testified that everything she told the law
enforcement investigators on September 23, 2010, was the truth.
Defendant's text messages did not have any effect on M.W.'s
account of the events that occurred that day; nor did
defendant's texts influence the manner in which she described
those events. M.W. also emphasized that she did not know
anything about what occurred on Tuesday night. In fact, she was
not certain if the interrogating investigators even brought up
any occurrence related to Tuesday, September 21, 2010.
Count 12 charged defendant with second degree hindering
apprehension in violation of N.J.S.A. 2C:29-3(b)(3), which
provides:
A person commits an offense if, with purpose
to hinder his [or her] own detention,
apprehension, investigation, prosecution,
conviction or punishment for an offense or
violation of Title 39 of the Revised
Statutes or a violation of chapter 33A of
Title 17 of the Revised Statutes, he [or
she] . . .
[p]revents or obstructs by means of force,
intimidation or deception any witness or
informant from providing testimony or
information, regardless of its
admissibility, which might aid in his [or
her] discovery or apprehension or in the
lodging of a charge against him [or her.]
52 A-4667-11T1
Section (b) was added to N.J.S.A. 2C:29-3 by L. 1981, c.
290, § 29 as a direct response to the threat of violence against
potential witnesses by organized crime. Cannel, Current N.J.
Criminal Code Annotated, comment 3 on N.J.S.A. 2C:29-3 (2016).
For that reason, N.J.S.A. 2C:29-3(b)(3) adds the requirements of
force, intimidation, or deception to the elements of witness
tampering set forth in N.J.S.A. 2C:29-3(a)(3). State v.
Krieger, 285 N.J. Super. 146, 152-53 (App. Div. 1995).
It is surely a matter of common experience
that people charged or expecting to be
charged with [a] crime will seek assistance
from those who may have relevant knowledge.
A mere request for investigational or
testimonial assistance ought not to be
criminalized on the basis that it might be
construed as an effort to suppress evidence
of a crime.
[Id. at 152.]
Here, the State does not claim, and the evidence presented
at trial did not show, that defendant exerted any force or
intimidation on M.W. Although the State argues that his texts
constituted deception, the only potentially false statement that
defendant made was his claim to have shut his computer off on
Tuesday night. This is not the type of "deception" the statute
seeks to penalize. The press release accompanying the passage
of L. 1981, c. 290, § 29 explained that it "'[e]stablishes a new
crime for any person who attempts to hinder his [or her] own
53 A-4667-11T1
apprehension, prosecution or conviction by concealing evidence,
intimidating witnesses, or by giving false information to a
police officer.'" State v. D.A., 191 N.J. 158, 169 (2007)
(first alteration in original) (emphasis added and omitted)
(quoting Press Release, Acting Governor Joseph P. Merlino,
Senate Bill No. 1537 (Sept. 24, 1981)).
Even if we were to view defendant's characterizations of
his conduct as misleading or outright false, his communications
were directed at M.W., not the police. Furthermore, because
defendant was not a member of organized crime, his text messages
were not the type of misconduct that the statute seeks to deter
or prevent. See State v. Meinken, 10 N.J. 348, 352 (1952)
(holding that courts should read statutes in relation to the
mischief and evil sought to be suppressed in order to give
effect to terms in accordance with their fair and natural
meaning). Defendant's texts primarily sought assistance and
information from M.W., who had knowledge of the investigation.
Defendant's conduct, therefore, does not fall under the
misconduct proscribed by N.J.S.A. 2C:29-3(b)(3). Krieger,
supra, 285 N.J. Super. at 152.
To convict defendant under N.J.S.A. 2C:29-3(b)(3), the
State is required to prove that he prevented or obstructed M.W.
from providing the police with information that would aid in his
54 A-4667-11T1
prosecution. Our analysis, guided by the long-settled standards
established by the Supreme Court in State v. Reyes, 50 N.J. 454,
459 (1967), and codified in Rule 3:18-1, requires us to
determine
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as
well as all of the favorable inferences
which reasonably could be drawn therefrom, a
reasonable jury could find guilt of the
charge beyond a reasonable doubt.
We are satisfied that defendant is entitled to a judgment
of acquittal as a matter of law because the record developed at
trial is devoid of any evidence to support the jury's guilty
verdict on Count 12, charging defendant with second degree
hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(3).
B
Witness Tampering
Count 14 charged defendant with third degree tampering with
a witness, in violation of N.J.S.A. 2C:28-5(a)(1) and/or (2),
which provides:
A person commits an offense if, believing
that an official proceeding or investigation
is pending or about to be instituted or has
been instituted, he [or she] knowingly
engages in conduct which a reasonable person
would believe would cause a witness or
informant to:
(1) Testify or inform falsely;
55 A-4667-11T1
(2) Withhold any testimony,
information, document or thing[.]
In D.A., supra, 191 N.J. at 169, the Court compared the
hindering statute, N.J.S.A. 2C:29-3(b), with the tampering
statute, N.J.S.A. 2C:28-5. Writing on behalf of a unanimous
Court, Justice Long explained:
[T]hough both the tampering statute,
N.J.S.A. 2C:28-5, and the hindering statute,
N.J.S.A. 2C:29-3, broadly proscribe the
suppression of evidence, there is a
fundamental difference between them.
N.J.S.A. 2C:29-3 prohibits such suppression
at any point prior to a defendant forming a
belief that an official action has been or
is about to be instituted. Unlike N.J.S.A.
2C:28-5, N.J.S.A. 2C:29-3 is phrased in
terms of avoiding discovery, apprehension,
or the lodging of a charge. For that
reason, it is also associated in the Code
with escape, eluding, resisting, flight, and
physical interference, all of which
constitute efforts by a defendant to stay
out of the official cross-hairs of law
enforcement, without necessarily believing
that official action exists or is
contemplated. On the contrary, N.J.S.A.
2C:28-5 addresses action taken after one is
already the focus of, or believes he may be
the focus of, an official proceeding.
That distinction is important. The
conduct that hindering addresses is the
wrongful avoidance of an official action by
attempting to prevent a witness from
reporting a crime to the police; the conduct
that is the focus of tampering is the
wrongful interference with an official
action that defendant believes has begun or
is about to begin.
56 A-4667-11T1
[D.A., supra, 191 N.J. at 169-70 (Emphasis
added).]
The temporal distinction between the tampering statute and
the hindering statute is a key factor here. While it is
possible for a defendant to be charged with violation of both
statutes, the two violations cannot be based on a single,
temporally discrete act. A defendant can be charged with
hindering apprehension for intimidating a witness before any
investigation is underway, and thereafter charged with witness
tampering based on conduct committed after the investigation is
pending, inducing a witness to testify falsely. But a defendant
cannot be charged with both crimes based on a single discrete
act. Count 12 and Count 14 are both factually predicated on
defendant's text messages to M.W. on September 23, 2010. This
discrete conduct cannot legally support convictions under both
Counts 12 and 14.
In order to establish the requisite state of mind to
transform the suppression of evidence from hindering to
tampering, the State must prove that "defendant was aware of
facts that would lead a reasonable person to believe that an
official action was pending or about to be instituted." Id. at
170. Here, there was ample evidence showing that defendant was
aware of pending official action when he contacted M.W. on
September 23, 2010. Grover informed defendant on September 22,
57 A-4667-11T1
2010, that an incident report had been filed concerning
allegations made by T.C. and that defendant would be hearing
from senior management about the matter. Later that evening, a
police officer came to defendant's dorm room inquiring as to
T.C.'s whereabouts. The next morning, counselors and
administrators informed defendant that T.C. had committed
suicide and directed him to go home. That evening, A.C. phoned
defendant to tell him that M.W. had been picked up by the
police. When defendant called M.W. on her cellphone, she told
him that she could not speak to him because she was at the
University Police Headquarters. Thus, at the time defendant
sent his text to M.W., he was well aware that an official
investigation was underway. Under the Court's reasoning in
D.A., defendant should have been charged only with witness
tampering, contrary to N.J.S.A. 2C:28-5(a)(1) or (2). Based on
the facts we have described, there is no legal basis to charge
defendant of hindering apprehension under N.J.S.A. 2C:29-
3(b)(3). There was, however, sufficient evidence to convict
defendant of tampering.
IV
Conclusion
This case has understandably received a great deal of media
attention. Defendant was convicted of multiple counts of
58 A-4667-11T1
invasion of privacy, bias intimidation, hindering prosecution,
and tampering with evidence. His criminal conduct was directed
against his then college roommate, T.C., and M.B., a man T.C.
invited to his dorm room on two occasions to engage in intimate
and indisputably private sexual activity. The State's case was
based on defendant's opprobrium of T.C.'s sexual orientation.
The State alleged that defendant used his technological prowess
to effectively convert the video webcam attached to his desktop
computer into the functional equivalent of an electronic
peephole. Thereafter, defendant adroitly used social media
tools to disseminate the time he planned to spy on T.C, as well
as broadcast (or attempt to broadcast) a live video feed of T.C.
having consensual sexual relations with a male guest in the dorm
room he shared with defendant.
Tragically, T.C. committed suicide after he discovered
defendant's voyeuristic machinations. The sense of loss
associated with a young man taking his own life defies our
meager powers of reason and tests our resolve to seek
consolation. From a societal perspective, this case has exposed
some of the latent dangers concealed by the seemingly magical
powers of the internet. The implications associated with the
misuse of our technological advancements lies beyond this
court's competency to address.
59 A-4667-11T1
Defendant was not charged with causing or contributing to
T.C.'s death. However, the social environment that transformed
a private act of sexual intimacy into a grotesque voyeuristic
spectacle must be unequivocally condemned in the strongest
possible way. The fact that this occurred in a university
dormitory, housing first-year college students, only exacerbates
our collective sense of disbelief and disorientation. All of
the young men and women who had any association with this
tragedy must pause to reflect and assess whether this experience
has cast an indelible moral shadow on their character.
Pursuant to the Supreme Court's decision in Pomianek,
supra, 221 N.J. at 69, defendant's convictions on Counts 2, 4,
6, and 8, which charged him with third degree bias intimidation,
as reflected in Middlesex County Indictment No. 11-04-00596 and
prosecuted pursuant to N.J.S.A. 2C:16-1(a)(3), are vacated and
defendant's charges are dismissed with prejudice as a matter of
law. As we have explained in Section III herein, the conviction
under Count 12 for second degree hindering apprehension contrary
to N.J.S.A. 2C:29-3(b)(3) must be vacated as a matter of law and
the charge dismissed with prejudice for insufficiency of
evidence. R. 3:18-1. Finally, we conclude that the evidence
the State presented to prove the charges in Counts 2, 4, 6, and
8 tainted the jury's verdict on the remaining charges, depriving
60 A-4667-11T1
defendant of his constitutional right to a fair trial. We are
compelled to remand the matter for a new trial on Counts 1, 3,
5, 7, 9, 10, 11, 13, 14, and 15.
Reversed and remanded. We do not retain jurisdiction. The
State's cross-appeal challenging the sentence imposed by the
trial court is moot.
61 A-4667-11T1
State of New Jersey v. Dharun Ravi
Court: New Jersey Superior Court Appellate Division
Date filed: 2016-09-09
Citations: 447 N.J. Super. 261, 147 A.3d 455
Copy CitationsCombined Opinion