STATE OF NEW JERSEY v. JUNE GORTHY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1341-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUNE GORTHY a/k/a
JUNE M. GOVERNALE,
JUNE GORTHY GOVERNALE,
Defendant-Appellant.
___________________________
Argued November 12, 2020 – Decided February 3, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 15-04-
0571.
Candace Caruthers, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Candace Caruthers, of
counsel and on the briefs).
Mary R. Juliano, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
County Prosecutor, attorney; Mary R. Juliano, of
counsel and on the brief).
PER CURIAM
Tried to a jury, defendant June Gorthy was convicted of fourth-degree
stalking, N.J.S.A. 2C:12-10. On September 28, 2018, the trial judge sentenced
defendant to 1758 days credit for time served, and entered a permanent order
restraining her from contact with the victim C.L. See N.J.S.A. 2C:12-10.1. She
appeals the conviction; we affirm.
The indictment included a course of stalking from July 1, 2002, through
May 31, 2006, which had been tried earlier. Defendant's prior conviction of not
guilty by reason of insanity was vacated by the Supreme Court, and a new trial
was ordered. State v. Gorthy, 226 N.J. 516 (2016). Defendant's five-year term
of probation on a related charge, third-degree possession of a handgun, N.J.S.A.
2C:39-5(b), not reversed on appeal, included a no-contact provision that expired
September 2014. On December 2, 2014, defendant phoned the victim. The
indictments were consolidated and thus included conduct dating back to 2002,
up to and including the 2014 phone call.
A detailed description of the stalking history can be found in the Supreme
Court opinion as well as our own. See Gorthy, 226 N.J. 516; State v. Gorthy,
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437 N.J. Super. 339 (App. Div. 2014); State v. Gorthy, No. A-2678-01 (App.
Div. 2012).
Defendant met C.L. in a 1998 "personal growth" conference at the Esalen
Institute in California. The event rules prohibited participants from after-hours
contact with presenters and stressed that presenters were not providing
individual counseling services. After that first seminar, defendant sent C.L. fruit
baskets. Defendant attended the annual seminar in 1999. During that
conference, defendant engaged in inappropriate conduct, which continued after.
She was banned from future participation.
Defendant relocated from Colorado to New Jersey in 2002, arriving
unannounced at the victim's office, and eventually being arrested while outside
her door. Police located weapons in defendant's van, including the firearm she
was convicted of possessing, as a result of which she was placed on probation.
Between 1998 and when defendant was placed on probation in 2009, the
stalking continued unabated, including seventy-four phone calls from April 15
to May 9, 2006, and defendant's filing of a complaint with New Jersey's Board
of Marriage and Family Therapists regarding C.L. The complaint was ultimately
dismissed because, among other reasons, C.L. was never defendant's therapist.
A-1341-18T2
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C.L. reported the 2014 phone call, and an arrest warrant issued for
defendant. Defendant explained to the officer who arrested her that she only
made the call because she was training as a mental health counselor and wanted
C.L. to become her mentor. When defendant's apartment was emptied by the
landlord, representatives contacted police and turned over a bag of items found
in the apartment. This included several knives, binoculars, duct tape, a dog
leash, a sleeping bag, pliers, lighter fluid, two pairs of latex gloves, and a
surgical kit. Detective Jacob Kleinknecht testified on cross-examination and
redirect that the items could potentially be used as kidnapping tools.
During the trial, C.L. and various police officers testified. Defendant also
testified, insisting that in 1998, she and C.L. formed a close relationship , and
that in 1999, it continued as she and C.L. exchanged phone calls and
correspondence. Defendant denied that she violated the rules of the Esalen
seminar, stating that between 1999 and 2002 she and C.L. "had a consensual
relationship" with phone calls and letters. Additionally, she denied that C.L.
ever wrote asking her not to contact her again.
Defendant claimed that in 2002, she reached out to C.L. only because she
"felt that, [she] was being legally harmed with some misunderstandings and mis
-- misinformation stated in the police reports." She explained that when she
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contacted C.L. in 2006 it was because she was going through a difficult time in
her life and felt that C.L. was a person who "cared." Defendant denied that she
had the internet capacity on her phone to send certain inculpatory messages she
had written to C.L. She said that in 2012 she and C.L. passed each other in
Trenton, coming within a couple of feet and exchanging a friendly glance, and
that as a result, she called her in 2014.
Defendant explained each item found in her apartment as having been
possessed for an innocent reason. She asserted that C.L. called her as much as
she called C.L. between 1999 and 2002, and wrote to her—adding that she lost
C.L.'s letters because of her moves, and that since she had a different phone at
the time, she was unable to obtain the records to prove that C.L. called her.
Defendant also explained that she relocated from Colorado because when she
and C.L. spoke in 1998, C.L. said she did not want a long-distance relationship
and knew she was moving to New Jersey. Defendant also claimed that the
officer who arrested her in 2008 told her that although she was prohibited from
contacting C.L., that if she encountered her on the street, she "should try to talk
to her."
In other words, defendant readily acknowledged the conduct with which
she was charged while testifying. However, she insisted that C.L. and she had
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been involved in a relationship, that C.L. had contacted her, and that therefore
the conduct was not stalking.
On appeal, defendant raises the following points:
POINT I
THE TRIAL COURT ERRED BY ADMITTING
HIGHLY PREJUDICIAL AND IRRELEVANT
EVIDENCE OF OTHER BAD ACTS.
A. The Pre-Indictment Evidence Was Irrelevant to
Prove a Course of Conduct Between 2002 and
2014 and Was Solely Admitted for Propensity.
i. The Pre-Indictment Evidence is Not
Intrinsic Because It Neither Facilitated nor
Directly Proved Stalking Between 2002
and 2014.
ii. The Pre-Indictment Evidence is
Inadmissible Under N.J.R.E. 404[(b)]
Because It Does Not Satisfy the Cofield
Factors.
iii. The Failure to Give a 404(b) Charge That
Clearly Explained the Permissible Use of
The Prior-Bad-Act Evidence Necessitates
Reversal.
B. References to the 2002 and 2009 No-Contact
Orders Were Unnecessary, Inappropriate, and
Prejudiced [Defendant's] Right to a Fair Trial.
C. The State's Many References to the Prior Arrest
and Search Warrants for [Defendant's] from
Judges Were Improper and Require Reversal.
A-1341-18T2
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D. The Evidence of [Defendant's] Prior Arrests Was
Inadmissible.
E. The State's Use of Additional Odd Behaviors
That Occurred Within the Indictment Period Was
Irrelevant Because It Was Wholly Unrelated to
the Course of Conduct.
F. The Court's Failure to Give any Limiting
Instruction about the 2002 and 2014 Items
Denied [Defendant's] a Fair Trial.
G. Conclusion.
POINT II
REVERSAL IS REQUIRED BECAUSE THE STATE
PRESENTED IMPROPER AND HIGHLY
PREJUDICIAL LAY OPINION TESTIMONY.
POINT III
THE OMISSION OF ANY TIME-LIMITATION
RENDERS THE ANTI-STALKING STATUTE
UNCONSTITUTIONALLY VAGUE BECAUSE IT
FAILS TO PROVIDE ADEQUATE NOTICE OF
PROHIBITED CONDUCT AND LIKEWISE FAILS
TO PROVIDE THE STATE WITH GUIDELINES
FOR ENFORCEMENT, LEADING TO ARBITRARY
RESULTS.
I.
Defendant's first point is that the testimony of events dating back to 1998
up until 2002 should have been excluded, as only the 2002 to 2014 conduct was
included in the indictment. The admission of the material was objected to at
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trial, thus, we review it for harmless error. We will disregard any error "unless
it is of such a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2.
N.J.R.E. 404(b) bars the admission of "other bad acts" evidence in order
to prevent the jury from convicting because of conclusions it may draw
regarding a defendant's predisposition. State v. Skinner, 218 N.J. 496, 514
(2014). The rule reads in pertinent part:
evidence of other crimes, wrongs, or acts is not
admissible to prove a person's disposition in order to
show that on a particular occasion the person acted in
conformity with such disposition.
[N.J.R.E. 404(b).]
However, prior bad acts evidence may be introduced if intrinsic to the
charged offense. State v. Rose, 206 N.J. 141, 180 (2011). "[E]vidence is
intrinsic if it 'directly proves' the charged offense" or if it facilitated the charged
offense. Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d
Cir.2010)). Under this approach, background evidence is admissible for a non -
propensity reason such as "allowing the jury to hear the full story of the crime[.]"
Id. at 181 (quoting Green, 617 F.3d at 249). See also State v. Brockington, 439 N.J. Super. 311, 327 (App. Div. 2015).
A-1341-18T2
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Whether evidence is intrinsic in nature is decided by applying the rules of
relevancy, most importantly N.J.R.E. 403. Rose, 206 N.J. at 177-78. Thus, if
the "evidence bore a direct nexus to defendant's stalking charge," it is intrinsic
to the offense. Gorthy, 226 N.J. at 539 (holding the weapons in defendant's
possession were intrinsic to the stalking charge "because the number and type
of weapons in defendant's possession could have affected the extent to which a
reasonable person would be put in fear of bodily injury or death").
If the bad act evidence is not intrinsic, it is only admissible after an
N.J.R.E. 404(b)(2) analysis. N.J.R.E. 404(b)(2) states such evidence "may be
admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident when
such matters are relevant to a material issue in dispute." It is subject to the State
v. Cofield test, and to gain admission, the State must demonstrate that:
1. The evidence of the other crime [is] relevant to a
material issue;
2. It [is] similar in kind and reasonably close in time to
the offense charged;
3. The evidence of the other crime [is] clear and
convincing; and
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4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
Where other crimes evidence is admitted, "[a] carefully crafted limiting
instruction must explain to the jury the limited purpose for which the other -
crime evidence is being offered." State v. Hernandez, 170 N.J. 106, 131 (2001).
"A person is guilty of stalking, a crime of the fourth degree, if [they]
purposefully or knowingly engage[] in a course of conduct directed at a specific
person that would cause a reasonable person to fear for [their] safety or the
safety of a third person or suffer other emotional distress." N.J.S.A.
2C:12-10(b). The State must prove beyond a reasonable doubt:
1) defendant engaged in speech or conduct that was
directed at or toward a person, 2) that speech or conduct
occurred on at least two occasions, 3) defendant
purposely engaged in speech or a course of conduct that
is capable of causing a reasonable person to fear for
herself or her immediate family bodily injury or death.
[State v. Gandhi, 201 N.J. 161, 186 (2010) (quoting
H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003)).]
The trial judge in this case admitted the pre-indictment conduct because
he found it was intrinsic to the stalking charge. To establish stalking, the State
had to prove that the 2002 to 2014 conduct would cause reasonable fear in the
victim. See id. at 186. Without this evidence—the pre-2002 circumstances—
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the jury would not have understood C.L.'s concern. The information placed the
conduct in context, constituting proofs that would aid the jury in assessing
defendant's credibility.
The pre-2002 events presented the jury with the complete picture.
Essentially, it "allow[s] the jury to hear the full story of the crime." Rose, 206 N.J. at 181. Thus N.J.R.E. 404(b) was not violated by the judge's admission of
the evidence. The evidence was intrinsic to the course of stalking over many
years.
Additionally, the judge gave a limiting instruction. Rose required "[a]
suitable limiting instruction [that] 'explain[s] precisely the permitted and
prohibited purposes of the evidence, with sufficient reference to the factual
context of the case to enable the jury to comprehend and appreciate the fine
distinction to which it is required to adhere.'" Rose, 206 N.J. at 161 (quoting
State v. Barden, 195 N.J. 375, 390 (2008)) (third alteration in original). The
judge explicitly instructed the jury that the pre-2002 conduct was being
presented only as "background information."
Defendant also complains that several "odd" behaviors were wrongly
admitted, as they did not establish actual direct communication with the victim.
This argument lacks merit because by engaging in conduct that would attract the
A-1341-18T2
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attention of the police, defendant "contacted" the victim indirectly. During one
of those incidents, defendant used C.L.'s last name to identify herself to police
when they were called. Defendant gave the victim's home address as her own.
The unusual messages defendant composed found on her cell phone were sent
to the victim, although because defendant had no internet, C.L. did not receive
them. That means that defendant acted intentionally, making the behavior more
than just "odd"—it was intended to result in communication with C.L.
Defendant also argues that the State was not required to prove she
intentionally elicited fear from the victim, thus the evidence of her arrest should
have been inadmissible. Since the thrust of defendant's testimony was that over
the years she and C.L. engaged in a mutual relationship in which others—
specifically, the police—interfered, evidence of the arrest was relevant to
establish that defendant's overtures were unwelcome. It cast doubt on the
veracity of defendant's testimony.
Nor was it error for the prosecutor to have introduced the no-contact
orders. It is undisputed black-letter law that a jury should not be informed of
the existence of a restraining order unless it is necessary to prove an underlying
crime. State v. Chenique-Puey, 145 N.J. 334, 343 (1996). In this case, however,
the no-contact orders were not restraining orders under the Prevention of
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Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. This was a no-contact order,
which C.L. requested. A domestic violence restraining order implies a judicial
determination that a person barred from contact has engaged in some wrongful
conduct. A no-contact order does not carry that stigma.
Furthermore, this evidence was also intrinsic to the offense. That no-
contact orders had been obtained, and that defendant ignored their import, went
directly to the heart of the issue of whether the single phone call in 2014 itself
constituted stalking. Since it was intrinsic to the crime, it was admissible.
Defendant contends the prosecutor's mention of the search and arrest
warrants was unduly prejudicial. The admission, however, was appropriate in
light of defendant's defense theory that it was the police, and not C.L., who
wished to keep defendant and the victim apart. In fact, in closing, defense
counsel argued that the police "made wild assumptions in this case," and had
"mischaracterized [defendant] as a violent, dangerous person." The knowledge
that warrants had been issued, and the brief mention during closing, were
necessary to refute defendant's testimony.
Defendant asserts the admission of the items seized during the search of
defendant's trailer and apartment should have been accompanied by a limiting
instruction. The items did not support an element the State was required to
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prove. Clearly, defendant was not being charged with kidnapping or assault or
possession of any of the items that were seized. Certainly, the nature of the
items seized in 2002 contributed to C.L.'s unease over defendant's years-long
relentless delusion. They were therefore relevant. Even if the admission of the
items found in defendant's apartment in 2014 was error, the error was harmless.
After all, defendant did not deny her conduct. She merely insisted, in the face
of overwhelming proof to the contrary, that her overtures were welcome.
The admission of the evidence, and even the absence of limiting
instructions in some instances, was not error. No cumulative effect requires
reversal because no error occurred.
II.
Defendant next argues that Kleinknecht's testimony was impermissible
highly prejudicial lay opinion testimony. We do not agree. The objected-to
material is found in Kleinknecht's affidavit describing the items found in
defendant's apartment as potential kidnapping tools. He was first asked about
this information, however, on cross-examination. Defendant on appeal now
contends that Kleinknecht's testimony on re-direct was impermissibly
prejudicial, however, the fact defendant opened the door makes it
unobjectionable.
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Essentially, defense counsel asked Kleinknecht if he had said in an
affidavit that the items found in the apartment could be used in a kidnapping.
The prosecutor then, item-by-item, reviewed the reason for his opinion. Under
the circumstances, the testimony was admissible and proper.
The defense attacked Kleinknecht's credibility by suggesting he was
fabricating the severity of defendant's conduct. The State introduced the
testimony to rehabilitate the witness's credibility, not to prove that defendant
meant to kidnap the victim. See N.J.R.E. 607(a). He was not offering an
opinion, but even if he was, it fell within the boundary of his expertise and
experience. This point does not warrant further discussion in a written opinion.
R. 2:11-3(e)(2).
III.
Defendant also contends that the omission of a time limitation makes the
anti-stalking statute unconstitutionally vague. This argument was not made to
the trial judge. We disagree.
Defendant argues that a person of ordinary intelligence could not
reasonably find a contact several years removed from other contacts constitutes
a course of continuing, prohibited contact under the statute. A course of
conduct is one of the statutorily enumerated elements—behavior engaged in
A-1341-18T2
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"repeatedly." N.J.S.A. 2C:12-10(a)(1). "'Repeatedly' means on two or more
occasions." N.J.S.A. 2C:12-10(a)(2). Pursuant to the statute, a single contact,
even if made years later, as in this case, comes within the definition of stalking.
A reasonable person would understand that even one phone call made after years
of silence following years of unwanted contact would expose the person to
liability under the statute. In any event, defendant was found guilty of one
charge.
Defendant knew she was prohibited from contact with C.L. during the
time that she was on probation. It was not until two months later, after the term
of probation expired, that she called the victim. Defendant could have readily
foreseen that her behavior violated the statute.
Any arguments raised by defendant not explicitly addressed in this
opinion lacked sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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