                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4466-17T3

J.A.M.,

          Plaintiff-Respondent,

v.

M.L.S.,

     Defendant-Appellant.
_________________________

                    Submitted May 15, 2019 – Decided June 14, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FV-07-2336-18.

                    Gray Law Group, LLC, attorneys for appellant (David
                    E. Gray, on the brief).

                    Seton Hall Law School Center for Social Justice,
                    Family Law Clinic, attorneys for respondent (Jessica
                    Miles, on the brief).

PER CURIAM
      In this case arising under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35, defendant appeals from a May 1, 2018 final

restraining order (FRO) in favor of plaintiff. After an eight-day testimonial

hearing, the trial judge issued a lengthy oral opinion, finding that defendant

committed the predicate acts of terroristic threats and cyber-harassment against

plaintiff and determining that a FRO was necessary for plaintiff's protection

against future acts of domestic violence (DV).         Those findings were also

reflected in the FRO. 1

      Defendant's brief does not address the trial court's finding that his conduct

constituted the making of terroristic threats, N.J.S.A. 2C:12-3.2          Plaintiff

contends that we need not address defendant's arguments concerning cyber-

harassment, because the finding of terroristic threats was sufficient to justify the

FRO. We agree that, in failing to address the finding of terroristic threats in his

brief, defendant has waived any issue concerning that aspect of the judge's


1
  Page four of the FRO states that the court "sustain[ed]" the charges of "cyber-
harassment" and "terroristic threats." Although the judge's opinion includes
references to harassment, the FRO itself does not include a finding of
harassment under N.J.S.A. 2C:33-4, and does not premise the restraints on the
predicate offense of harassment.
2
  In relevant part, the statute makes it a crime to threaten "to commit any crime
of violence with the purpose to terrorize another." N.J.S.A. 2C:12-3(a).


                                                                            A-4466-17T3
                                         2
decision. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.

2011).3 We also agree with plaintiff that a finding that defendant committed

terroristic threats, by itself, is sufficient to satisfy the predicate act requirement

of the PDVA. See N.J.S.A. 2C:25-19(a)(3), (a)(19) (defining terroristic threats

and cyber-harassment as predicate acts). Nonetheless, we will address the

findings concerning cyber-harassment.

        By way of background, the cyber-harassment statute provides, in pertinent

part:

              A person commits the crime of cyber-harassment if,
              while making a communication in an online capacity
              via any electronic device or through a social
              networking site and with the purpose to harass another,
              the person:

              (1) threatens to inflict injury or physical harm to any
              person or the property of any person; [or]

              (2) knowingly sends, posts, comments, requests,
              suggests, or proposes any lewd, indecent, or obscene
              material to or about a person with the intent to
              emotionally harm a reasonable person or place a
              reasonable person in fear of physical or emotional harm
              to his person….



3
   In his decision, the judge noted he had allowed plaintiff to amend the DV
complaint to include terroristic threats and had protected defendant's due process
rights by giving him adjournments and other accommodations so that he could
respond to that charge. Defendant's brief does not challenge the amendment.
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                                          3
            [N.J.S.A. 2C:33-4.1(a)(1), (2).]


      To put the appeal in context, the parties were teenage classmates at a local

high school. In the trial court, the parties stipulated that they had a dating

relationship. In late September, defendant sent four of his friends a vulgar

Snapchat message which they believed was about plaintiff.           The message

spawned rumors in the school that were embarrassing to plaintiff.           Other

students, who believed defendant acted improperly, "keyed" defendant's car and

threatened to beat him up. Following a heated meeting between his family and

plaintiff's family, defendant went to the school authorities, admitted that his

Snapchat message was inappropriate, and accepted a disciplinary suspension.

      After serving the suspension, defendant continued his education through

home instruction. He remained enrolled in the school but did not attend classes

there. Plaintiff continued to attend the school. Defendant stopped sending

plaintiff Snapchats or otherwise directly communicating with her. However, he

posted a series of angry messages on the internet about how plaintiff and her

family and friends had ruined his life. Three of those messages could fairly be

construed as veiled threats to commit violence. One message stated, "I'm going

to hell. Who's coming with me." A second referred to "spiteful bitch and rifle



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                                        4
clips," and a third referred to "saving money now for the lawyers I'll need later."

In January, defendant posted a hostile internet message about his "ex" girlfriend.

      In February, about five months after defendant sent the initial vulgar

Snapchat, and a couple of weeks after a nationally-publicized school shooting

in Parkland, Florida, defendant made three internet postings which became the

focus of the DV charges in this case. On the day of the postings, the high school

was holding an all-day music program and fund-raiser. Defendant's first post

stated that he would "give you all a little extra to hate me for today." Next,

defendant posted on Snapchat an announcement that he had uploaded a rap song

on a public music website. The Snapchat message included a link to the music

website and the song. It is fairly inferable from the record that defendant knew

current students at the high school were among his Snapchat followers and hence

would see the message and circulate it.

      Defendant's page on the music website featured a photo of defendant

holding a handgun and pointing it at the viewer. The rap song itself contained

the name of the high school; the title included the words "lil sluts at [the high

school]." In the song, defendant threatened to hit a "bitch" in the face, crack a

girl's head like an eggshell, and kill her. The lyrics included the words: "You

fucked up my life. Put a knife in my lungs. I don't give a fuck about a bitch.


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                                          5
Pull my gun, put it to your fucking head, now you're dead." Later that day,

plaintiff heard the song, believed it was directed at her, perceived it as a threat,

and was frightened. School officials, also perceiving that the song threatened

violence, put the school on lockdown and canceled the rest of the day's music

events.

      After hearing defendant and plaintiff testify, the trial judge found that

plaintiff was a credible witness and defendant was not credible. Specifically,

the judge did not believe defendant's benign explanation for the song lyrics or

for his course of conduct in publicizing it to his former high school classmates

and posting it on the music website.         The judge specifically disbelieved

defendant's explanation for including a photo of himself holding a gun. The

judge found as fact that defendant intended the lyrics as threats aimed at plaintiff

and that he posted the song with the intent to harass her.

      In making those findings, the judge followed what he called the "roadmap"

defendant created, referring to defendant's conduct in the weeks leading up to

the posting of the song. The judge rejected defendant's explanation that the

timing of the posting was a mere coincidence.         The judge found that "the

language, and the context, the surrounding circumstances and [defendant's] prior

statements, all lea[d] this [c]ourt to conclude that this is a communication in


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                                         6
offensively coarse language[, issued] [w]ith a specific purpose to harass the

person that continually caused [defendant's] upsetness, the plight he found

himself in. . . . And that is unfortunately the plaintiff. . . ." The judge noted that

defendant had issued an earlier statement about giving something to hate him

for, as an "advertisement" for the coming rap song. The judge found that the

manner in which the song was communicated was "designed and intended to

disturb, irritate or bother" plaintiff and it in fact had that effect on her.

      The judge also concluded that defendant's course of conduct constituted

cyber-harassment under N.J.S.A. 2C:33-4.1. The judge found that defendant

threatened to inflict physical harm on plaintiff, as well as posting obscene and

lewd messages about her, and that a reasonable person subjected to all of that

communication would be fearful.

      Lastly, the judge found that defendant committed terroristic threats under

N.J.S.A. 2C:12-3(a), threatening to commit a crime of violence with the purpose

to terrorize another. The judge found that the threat to "[p]ull my gun and put

it to your fucking head" was a threat, supported by a picture of defendant holding

a gun and pointing it outward at the viewer. The judge concluded that the line

was a "threat to commit a crime of violence with a purpose to terrorize

[plaintiff]."


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                                          7
        The judge then reviewed the Silver4 factors concerning the need to issue

a FRO, finding that defendant not only committed predicate acts of DV, but that

defendant had no appreciation of how wrongful his conduct was. Based on

defendant's history of stewing in resentment at plaintiff, and his lack of remorse

or insight into his conduct, the judge found there was a reasonable basis for

concern over plaintiff's safety and well-being. The judge found defendant's

conduct also stemmed from his unwillingness to let go of a relationship that was

over, a situation likely to give rise to future domestic violence.         Given

defendant's expressed lack of understanding of the wrongfulness of his conduct,

the judge found there was "an immediate need to protect the plaintiff from

further abuse."

        On this appeal, defendant contends that his publication of the song was

constitutionally protected speech and was not a predicate act of DV, and the trial

court erred in finding that there was a need to issue the FRO. Based on our

review of the entire record, we find no merit in any of those arguments. They

are largely based on defendant's version of the facts, which the judge did not

credit. Defendant's constitutional argument, which discusses harassment but not

cyber-harassment, is misplaced because the FRO was not issued based on a


4
    Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006).
                                                                          A-4466-17T3
                                        8
finding of harassment.      See State v. Burkert, 231 N.J. 257, 274 (2017)

(contrasting the "loosely worded language" of the harassment statute, N.J.S.A.

2C:33-4(c), with the more "precise and exacting standard" contained in the

cyber-harassment statute, N.J.S.A. 2C:33-4.1). Except as addressed below,

defendant's contentions do not warrant further discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      On this appeal, our review of the judge's decision is limited. We will not

disturb the judge's factual findings as long as they are based on substantial

credible evidence, and we owe great deference to the judge's evaluation of

witness credibility. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We also

owe deference to the expertise of the Family Part. Id. at 413. We will not

"disturb the 'factual findings and legal conclusions of the trial judge unless . . .

they are so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justi ce.'"

Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J.

474, 484 (1974)).

      This case does not concern rap music in general, or defendant's song lyrics

in the abstract. Rather, the case concerns the totality of defendant's conduct,

viewed in light of the trial judge's factual findings. We bear in mind that the


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                                         9
trial judge listened at length to the testimony of these parties and their witnesses

and had the opportunity – which we have not – to judge their credibility

firsthand. Id. at 411-12. Defendant testified, giving his explanation for his

conduct. The judge did not believe him. Instead, he believed the testimony of

plaintiff and her witnesses. After reviewing the trial record, we find no basis to

second-guess the judge's credibility findings, or his findings of fact.

      In light of the facts as the judge found them to be, we find no merit in any

of defendant's appellate contentions. And, as previously noted, even without the

finding of cyber-harassment, the judge's finding of terroristic threats, which

defendant has not challenged, is a sufficient predicate act under the PDVA.

N.J.S.A. 2C:25-19(a)(3). The record supports the judge's factual and legal

determinations on terroristic threats. The judge's findings as to the remaining

Silver factors, justifying the issuance of the FRO, are also supported by

substantial credible evidence.

      Affirmed.




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