STATE OF NEW JERSEY VS. KEVIN GRAHAM (18-17, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4920-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN GRAHAM,
Defendant-Appellant.
_________________________
Submitted May 14, 2019 – Decided June 18, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Gloucester County, Municipal Appeal No.
18-17.
Law Offices of Andrew N. Yurick, attorneys for
appellant (Andrew N. Yurick, on the brief).
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Jonathan Grekstas, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant appeals from a May 21, 2018 decision of the Law Division,
which found him guilty on two complaints of harassment. We affirm.
I.
On March 8, 2017, M.P. filed complaint-summons S-2017-0236-0811
with the Monroe Township police department, charging defendant with
harassment.1 M.P. alleged defendant repeatedly said hello to her at a Wawa
store, even though M.P. was ignoring him. M.P. alleged that defendant followed
her around the store saying, "I will see you in court." She also alleged defendant
followed her in his car when she left the store and she had to take a different
route home.
On May 31, 2017, M.P. filed complaint-summons S-2017-0637-0811,
which also charged defendant with harassment. She alleged defendant engaged
in a course of harassment dating back to 2015. M.P. claimed defendant had
repeatedly asked her to work for him, repeatedly contacted her electronically
through social media and text messages, and stood outside the window of her
car when she was parked at a Walmart store.
1
We refer to the complainant and other individuals using initials, in order to
protect their privacy.
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On August 3, 2017, the municipal court judge conducted a trial on the
complaints. At the trial, M.P. testified that in October 2015, she was working
as a waitress at a sports bar. Defendant was at the bar with a female friend.
M.P. was not serving them, but defendant approached M.P. and asked if she
wanted to work for him at a club in Atlantic City. M.P. told defendant she was
not interested. Defendant then "ask[ed] [her] on a date for his girlfriend." M.P.
said she "politely" asked defendant to leave her alone.
According to M.P., in the following months, defendant returned to the
sports bar four to six times. She testified that defendant followed her around the
bar and repeatedly asked her to work for him. She told him she was not
interested. M.P. stated that thereafter, defendant did not return to the sports bar
for a while.
M.P. further testified that one day, she went with her brother to a Walmart
store in Turnersville. She remained in the car while her brother entered the
store. Unbeknownst to M.P., she had parked next to defendant's car. M.P. saw
defendant and a "little boy," whom she thought was defendant's son. M.P. stated
that defendant stood by the passenger window of her car and stared at her for
several minutes.
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M.P. further testified that sometime in 2016, defendant returned to the
sports bar. She said defendant tried to talk to her and at one point, banged on
the kitchen window to get her attention. M.P. stated that she spoke to her boss
and asked her to remove defendant from the premises. Apparently, M.P.'s boss
told defendant he would not be welcome at the sports bar for a few months.
Defendant threatened to sue the bar for discrimination. He claimed the bar had
denied him service because of his weight.
M.P. also testified that on March 8, 2017, between 12 noon and 2:00 p.m.,
she was in a Wawa store in Monroe Township and approached the register. M.P.
saw defendant "checking out and getting ready to leave" the store. As she was
waiting in line, defendant came up to her and said hello at least twice. M.P.
ignored him.
M.P. purchased something to eat and went to the area where patrons pick
up their orders. According to M.P., defendant came to the pick-up area and
repeatedly said, "I will see you in court." M.P. told defendant three times to
leave her alone, after which defendant left the store.
M.P. stated that when she got into her car, defendant's car pulled up behind
her car. She drove out of the parking lot, and defendant followed her in his car
for about thirty seconds. M.P. said that for about a quarter of a mile, she turned
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onto different streets to prevent defendant from following her. Defendant
stopped following her. M.P. drove to the police station to report the incident.
According to M.P., during the time these various incidents were occurring,
defendant repeatedly contacted her electronically. M.P. said she received a
message on Facebook to the effect of "Hey, how you doing?" Defendant sent
other messages to her, and she responded twice with very short messages. M.P.
eventually blocked defendant from sending her additional messages.
M.P. also said that defendant obtained her phone number and started to
send her text messages. She stated that after defendant revealed who he was,
she blocked his phone number. M.P. obtained a new phone and phone number,
and defendant began texting her again in late 2016.
Defendant sent M.P. a text message, and M.P. asked who was sending the
message. After M.P. pressed him for a response, defendant revealed he was the
sender and defendant asked M.P. to work for him. M.P. responded, "If you come
into my job again, I'm calling the cops, because you are harassing me. Do not
reply to this text message either." M.P. again asked defendant not to come to
the sports bar and defendant replied, "You wish. Bye Hater" and said, "See you
in court." M.P. apparently blocked defendant's phone number again.
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After the State completed the presentation of its case, defendant moved
for a judgment of acquittal, arguing that the State had not established a prima
facie case of harassment under N.J.S.A. 2C:33-4. Defendant contended that the
State had not presented sufficient evidence to show that he intended to annoy or
alarm M.P. He claimed that because there was a legitimate reason or purpose
for his comments, they did not constitute harassment under the law. The judge
denied the motion.
Defendant then testified that he had been at the sports bar where M.P.
worked three or four times. He said that in 2015, he asked M.P. if she wanted
to model or help market his club in Atlantic City. According to defendant, M.P.
said she was interested and gave defendant her phone number.
Defendant also testified that one night, while she was inebriated, M.P.
gave him another phone number. Defendant said M.P. told him she had changed
her phone number because of an ex-boyfriend. Defendant stated that he sent
M.P. about a half dozen text messages over two years.
Defendant denied M.P.'s claim that he approached her car in the parking
lot of the Walmart store. Defendant also said that at the Wawa store, he had
ordered a sandwich and paid for it at the front counter. Defendant said "hello"
or "hi" to M.P. twice, and M.P. definitely heard him, but she did not respond.
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Defendant then told M.P. "I'll see you in court" because he "had to let her know
that [they] . . . would be seeing each other . . . again in court." Defendant said
he then went to wait for his sandwich. He stated that he did not follow M.P. into
that area and he denied following her in his car.
Defendant further testified that he tried to find M.P. on Facebook, but was
unable to do so because he did not know her last name. Defendant knew M.P.'s
first name, but only knew her last name started with a "P." Defendant stated
that he did not intend to harass M.P. and was not trying to annoy her.
J.G. testified for the defense. J.G. said she was with defendant at the
sports bar in November 2016. She testified that she did not see any contact
between defendant and M.P. J.G. also said that she did not see defendant follow
M.P. around the bar, or hear M.P. say, "leave me alone." She testified that she
was with defendant when he was "kicked out" of the sports bar. She stated that
she did not see M.P. on that occasion.
Defendant also called C.M. as a witness. She testified that she has
accompanied defendant to the sports bar, and she was at the sports bar in
November 2016. She testified that on that date, she did not see any interaction
between defendant and M.P.
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After hearing closing arguments by the attorneys, the municipal court
judge placed an oral decision on the record. The judge stated that M.P. was a
credible witness and defendant's testimony was "self-serving and somewhat
unreliable." The judge found that the State had proven, beyond a reasonable
doubt, that defendant committed harassment in violation of N.J.S.A. 2C:33-4(c)
because he engaged in a "course of alarming conduct" over a significant period
of time, with the purpose to alarm or seriously annoy M.P.
The judge noted that M.P. had testified to incidents at the sports bar, the
Wawa store, and the Walmart. M.P. also had testified about the text messages
that defendant sent to her. The judge found that defendant had engaged in th is
conduct with a purpose to annoy, bother, or harass M.P. The judge also rejected
defendant's contention that his communications with M.P. were protected speech
under the First Amendment to the United States Constitution.
The judge merged the two complaints and sentenced defendant to one year
of probation with a no-contact provision. The judge also imposed appropriate
fines, penalties, and costs. The judge suspended the sentence for two weeks to
allow defendant's attorney to explore the possibility of a conditional dismissal.
Defendant then filed an appeal to the Law Division.
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The Law Division judge considered the matter on April 27, 2018, and filed
a written opinion dated May 21, 2018. The judge accepted the municipal court's
credibility findings and found that defendant had engaged in a "course of
alarming conduct or of repeatedly committed acts with purpose to alarm or
seriously annoy" M.P., in violation of N.J.S.A. 2C:33-4(c).
The judge noted that the incidents that M.P. had described took place over
a two-year period. The judge stated that, although M.P. repeatedly told
defendant to leave her alone, defendant "continued to come to [M.P.'s] place of
employment, follow her, text her, message her, and contact her." The judge
"f[ound] that these series of events constitute a course of alarming conduct or
repeatedly committed acts."
The judge also found that defendant acted with a purpose to harass M.P.
The judge noted that defendant had continually attempted to contact M.P. even
though she repeatedly told him not to do so. The judge found that defendant
"was clearly aware that [M.P.] did not wish to speak with him, yet he continued
to make contact with her, offer her a job, and follow her." The judge concluded
that the State had proven beyond a reasonable doubt that defendant was guilty
of harassment under N.J.S.A. 2C:33-4(c).
This appeal followed. On appeal defendant argues:
A-4920-17T3
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[POINT I
THE RECORD BELOW DOES NOT SUPPORT A
FINDING OF HARASSMENT.
POINT II
THE WALMART INCIDENT SHOULD NOT HAVE
BEEN CONSIDERED BY THE COURTS BELOW.
(Not raised in municipal court or Law Division).
POINT III
THE CONDUCT WHICH LED TO THE
DEFENDANT'S CONVICTION WAS PROTECTED
SPEECH UNDER THE FIRST AMENDMENT OF
THE U.S. CONSTITUTION. (Not raised in Law
Division, but raised in municipal court).
POINT IV
THE DEFENDANT'S CONVICTION SHOULD BE
OVERTURNED BASED ON DUE PROCESS
GROUNDS. (Not Raised in Law Division, but raised
in municipal court).]
II.
Defendant argues there is insufficient evidence in the record to support
his conviction. Defendant contends the evidence does not support the Law
Division judge's conclusion that he "[e]ngage[d] in any other course of alarming
conduct or of repeatedly committed acts with purpose to alarm or seriously
annoy" M.P. We disagree.
Our review of a trial court's judgment affirming a municipal court
conviction "is limited to 'whether the findings made [by the trial court] could
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reasonably have been reached on sufficient credible evidence present in the
record.'" State v. Kuropchak, 221 N.J. 368, 382-83 (2015) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). An "[a]ppellate court[] should defer to trial
courts' credibility findings that are often influenced by matters such as
observations of the character and demeanor of witnesses and common human
experience that are not transmitted on the record." State v. Locurto, 157 N.J.
463, 474 (1999) (citing State v. Jamerson, 153 N.J. 318, 341 (1998); Dolson v.
Anastasia, 55 N.J. 2, 7 (1969); Johnson, 42 N.J. at 161).
Furthermore, our deference to the trial court's fact-finding is especially
appropriate where, as in this case, "two lower courts have entered concurrent
judgments on purely factual issues." Ibid. "Under the two-court rule, appellate
courts ordinarily should not undertake to alter concurrent findings of facts and
credibility determinations made by two lower courts absent a very obvious and
exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123,
128-29 (1952)).
N.J.S.A. 2C:33-4 provides in pertinent part:
Except as provided in subsection e., a person commits
a petty disorderly persons offense if, with purpose to
harass another, he:
....
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c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
A court must make its determination of whether a defendant has engaged
in a "course of alarming conduct" on a case-by-case basis. State v. Hoffman,
149 N.J. 564, 581 (1997). Moreover, "serious annoyance under subsection (c)
means to weary, worry, trouble, or offend." Ibid.On appeal, defendant argues that his contacts with M.P. were too sporadic
to constitute a course of alarming conduct or a course of repeatedly committed
acts under N.J.S.A. 2C:33-4(c). He also argues that the evidence does not
support a finding that his purpose was to alarm or seriously annoy M.P. We are
convinced, however, that there is sufficient credible evidence in the record to
support the judge's finding that defendant's conduct, as detailed in M.P.'s
testimony, constituted harassment under N.J.S.A. 2C:33-4(c).
The evidence supports the trial court's finding that defendant's conduct
constituted a "course of alarming conduct or of repeatedly committed acts." The
judge noted that despite being told to leave her alone, defendant continued to
come to M.P.'s place of employment, follow her, send messages to her, and
contact her, even though M.P. told him not to do so. The evidence also supports
the trial court's finding that defendant acted with a purpose to harass M.P. The
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judge noted that defendant was clearly aware that M.P. did not wish to speak
with him, but he continued to contact her, offer her a job, and follow her.
We therefore conclude that the record supports the trial court's
determination that the State had proven, beyond a reasonable doubt, that
defendant harassed M.P. in violation of N.J.S.A. 2C:33-4(c).
III.
Next, defendant argues that the courts below should not have considered
evidence regarding the Walmart incident because M.P. did not establish a
specific date or time period for this incident, and the municipal court allegedly
lacked jurisdiction over this incident. We note that defendant did not raise these
arguments in the municipal court or the Law Division. In any event, we
conclude neither argument has merit.
We reject defendant's contention that the municipal court and the Law
Division erred by considering the Walmart incident because M.P.'s testimony as
to the date or time of this incident was not specific. Although M.P. did not
identify when the Walmart incident occurred, both the municipal court and Law
Division judges found M.P.'s account credible and concluded that it had
happened, as she claimed. The fact that M.P. did not specifically identify when
this incident occurred goes to the weight, not the admissibility of this evidence.
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We also reject defendant's contention that the municipal court did not have
jurisdiction to consider this incident. A municipal court only has "jurisdiction
over cases arising within the territory of that municipality[.]" N.J.S.A. 2B:12 -
16. Where "the statute defining the offense is not explicit [on the question of
jurisdiction], the place where the offense was committed . . . must be determined
from the nature of the offense charged and the location of the act or acts
constituting it." State v. Halleran, 181 N.J. Super. 542, 547 (App. Div. 1981)
(citations omitted).
In Halleran, we held a municipal court had jurisdiction to find the
defendant guilty of harassment under N.J.S.A. 2C:33-4(a) for calling her ex-
husband anonymously with the purpose of harassing him. Id. at 544-48. We
held that because a phone call must be placed and received, "the offense [was]
of a continuing nature, [and] can be prosecuted either in the municipality from
which the proscribed call was made or in the municipality in which it [was]
received." Id. at 548.
In this case, defendant was found guilty of harassment under N.J.S.A.
2C:33-4(c), based upon evidence that he engaged in a "course of alarming
conduct or of repeatedly committed acts with purpose to alarm or seriously
annoy such other person." The Monroe Township municipal court had
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jurisdiction to consider the Walmart incident because, even though the incident
did not occur in Monroe Township, it was part of a course of alarming conduct,
undertaken with the purpose to alarm or seriously annoy M.P., which occurred
in the Township and other jurisdictions.
Furthermore, even if the municipal court erred by considering the Walmart
incident, the error was not "clearly capable of producing an unjust result." See
R. 2:10-2. At the trial of this matter, the State presented other evidence, which
was sufficient to establish beyond a reasonable doubt that defendant was guilty
of harassment, in violation of N.J.S.A. 2C:33-4(c).
IV.
Next, defendant argues his conviction should be set aside because the
conduct for which he was found guilty was speech protected by the First
Amendment to the United States Constitution. Again, we disagree.
In State v. Burkert, 231 N.J. 257, 280 (2017), the Court stated that
N.J.S.A. 2C:33-4(c) established a "vague[] and broadly worded standard" that
"ha[d] the capacity to chill permissible speech." The Court noted that "[s]peech
. . . cannot be transformed into criminal conduct merely because it annoys,
disturbs, or arouses contempt." Id. at 281 (citing Houston v. Hill, 482 U.S. 451,
461 (1987)).
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The Court stated, however, that neither the First Amendment, nor Article
I, Paragraph 6 of the State Constitution, prohibits "speech that is integral to
criminal conduct, speech that physically threatens or terrorizes another, or
speech that is intended to incite imminent unlawful conduct." Ibid. (citing
United States v. Alvarez, 567 U.S. 709 (2012)). The Court also stated that the
First Amendment does not prohibit "states from enacting laws that punish
expressive activity when 'substantial privacy interests are being invaded in an
essentially intolerable manner.'" Id. at 282 (citing Cohen v. California, 403 U.S.
15, 21 (1971)).
Thus, the Court interpreted the broad language of N.J.S.A. 2C:33-4(c) in
light of "the principles animating our free-speech guarantees." Id. at 284. The
Court stated that to "save the statute from constitutional infirmity" the terms
"alarming conduct" and "acts with purpose to alarm or seriously annoy" had to
"be defined in more concrete terms consonant with the free-speech clauses of
our Federal and State Constitutions." Ibid.
The Court therefore interpreted the phrases "any other course of alarming
conduct" and "acts with purpose to alarm or seriously annoy" to mean "repeated
communications directed at a person that reasonably put that person in fear for
A-4920-17T3
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his safety or security or that intolerably interfere with that person's reasonable
expectation of privacy." Id. at 284-85. The Court explained:
To be clear, the standard set forth above applies
only in those cases where the alleged harassing conduct
is based on pure expressive activity. Under that
standard, repeated threats or menacing communications
that reasonably place a person in fear for his safety or
security are not protective expressive activities.
Likewise, a person who repeatedly makes unwanted
communications to a subject, thereby intolerably
interfering with his reasonable expectation of privacy,
will not find shelter behind the First Amendment.
Thus, a person who every day, over the course of a
week, either repeatedly yells outside an ex-partner's
house during the night, or repeatedly follows closely
next to a woman importuning her for a date or making
other unwanted comments, despite constant demands to
stop, would violate subsection (c).
[Id. at 285.]
As stated previously, the record shows that defendant repeatedly
communicated with M.P., even though she told him not to do so. M.P. had a
reasonable expectation of privacy in being free from such unwanted
communications. Moreover, defendant's conviction under N.J.S.A. 2C:33-4(c)
was not based solely on his oral communications. It was also based on his
actions, which included going to M.P.'s place of employment, standing outside
her car in the Walmart parking lot, and following her car.
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We therefore conclude that defendant's conviction does not violate
defendant's right to free speech under the First Amendment.
V.
Defendant also argues that his conviction should be reversed on due
process grounds. He contends the municipal court judge erred by refusing to
again postpone the trial because several witnesses whom defendant subpoenaed
did not appear for trial, and because defendant wanted additional time to
investigate the security footage at the Wawa store and to produce the record -
keeper for the footage.
"The granting of trial adjournments rests within the sound discretion of
the trial court. Absent an abuse of discretion, denial of a request for an
adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super.
98, 105-06 (App. Div. 1965) (citing State v. Smith, 66 N.J. Super. 465, 468
(App. Div. 1961), aff'd, 36 N.J. 307 (1962); State v. Gallo, 128 N.J.L. 172 (Sup.
Ct. 1942), aff'd o.b., 129 N.J.L. 52 (E. & A. 1942)).
We are convinced that the municipal court judge did not err by denying
defendant's request for a further postponement of the trial. The record shows
that the complaints had been pending for five months, and the matter had already
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been adjourned a number of times. Defendant had sufficient time to obtain the
footage from the surveillance camera in the Wawa store.
Moreover, the trial was held five months after the alleged incident at the
Wawa store, and the record indicates that it was unlikely the footage was still
available. Defendant was informed by letter that after twenty-five to thirty days,
the store records over the surveillance footage. Defendant also failed to show
that the Wawa's custodian of the surveillance footage knew of the contents of
the recording, or had any other relevant evidence.
In addition, defendant failed to show that the witnesses who failed to
appear would have been able to offer material evidence. It appears that some of
the subpoenaed witnesses were Wawa employees, and defendant intended to call
the others as character witnesses.
In her decision on the motion, the municipal court judge noted that these
individuals "were not either employed or aware of the circumstances[,] . . .
would not have been able to shed any light on it and . . . it would have been a
waste of not . . . only their time, but the [c]ourt's time to have them here." The
record supports the judge's findings.
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We therefore conclude that the municipal court judge did not abuse her
discretion in denying defendant's adjournment request, and defendant was not
denied due process.
Affirmed.
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