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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(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,

(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,

,

,

(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,

(2014) (quoting Chapman v. California,

,

,

(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,

.

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."

.

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,

(2014) (quoting Burks v. United States,

,

,

(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.,

(2005) (quoting Lutwak v.

United States,

,

,

(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,

(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.,

, 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,

(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,

.

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,

(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

, 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