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State v. Otto


October 21, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-036.

Per curiam.


Argued October 6, 2008

Before Judges Carchman and Sabatino.

After a trial on downgraded criminal charges that had been specially remanded to the municipal court, defendant Eugene Otto was convicted of harassment, N.J.S.A. 2C:33-4(b), a petty disorderly persons offense. The Law Division sustained the conviction on de novo review, and upheld various fines and penalties that defendant had been ordered to pay.

Defendant now appeals. His sole argument is that the proofs at trial were insufficient to establish that he possessed the requisite statutory purpose to harass the victim. We disagree, and affirm the judgment.

The following facts and circumstances are germane to our analysis. Defendant was employed as a police officer in Irvington for more than sixteen years. In the spring of 2006, he was the subject of an internal investigation that led to his discharge. One of the Irvington officers who participated in that investigation was Detective Sergeant Amanda Koontz. Sergeant Koontz specifically recommended that defendant be terminated from employment, a recommendation that her superiors accepted.*fn1

On June 12, 2006, Sergeant Koontz informed defendant that he was being discharged. She then escorted defendant to the police department's juvenile bureau, where he was to gather and remove his belongings. They were accompanied by Detective Ramon Melenka, also a member of the department's internal affairs unit, and Officer Elijah James, a police union representative.

In the course of heading back to his office, defendant stopped at his car. He removed from the car a box, as well as what the witnesses all described as a bottle of green liquid. Defendant then went into the juvenile building and began to empty out his desk. Sergeant Koontz stood nearby, along with Officer James. Meanwhile, Detective Melenka briefly left the area to go look for additional boxes.

While clearing out his desk, defendant sprinkled green liquid out of the bottle onto one of Sergeant Koontz's feet. At the time Sergeant Koontz was wearing open-toed sandals. The sprinkling was observed by Officer James, who specifically noticed that Sergeant Koontz's toes had become wet. The liquid had a strong odor.

According to Sergeant Koontz, defendant tossed the green liquid on her several times, even though she asked him to stop. In the meantime, her foot became "soaked." She started to feel a "burning" or "tingling" sensation. She became fearful that the liquid contained some kind of toxic chemical.

Sergeant Koontz then left the room, went to a cooler, and washed off her foot with clean water. She dried off with a paper towel and then returned to the area around defendant's desk.

By this point, Detective Melenka returned to the scene, and "smelled something that just wasn't there before." Sergeant Koontz informed him that defendant had sprinkled green liquid on her foot. She then told defendant, in the presence of the other two officers, that she was going to press charges against him. The sergeant then reached into defendant's box and removed the bottle of green liquid, declaring that she was taking it as evidence.

After Sergeant Koontz grabbed the bottle, defendant lunged towards her. He began repeatedly yelling, "give me my bottle back. I want my bottle back." Sergeant Koontz backed away from him, until she was up against a wall. Defendant continued to charge at her, "like [he was making] a football tackle." He also continued to scream and demand the return of his bottle.

At this point, Detective Melenka and Officer James intervened. Officer James grabbed defendant from behind by the waist area. Detective Melenka positioned himself between defendant and Sergeant Koontz, as defendant tried to reach over and strike her.

Through their combined exertion of physical force, the two male officers managed to move defendant away from Sergeant Koontz and subdue him. The sergeant fled from the room. After defendant finished collecting his belongings, he was arrested. The bottle*fn2 was confiscated.

Sergeant Koontz filed a criminal complaint, No. 2006-2026-0709 ("complaint 2026"), against defendant, charging him with retaliation for past official action, N.J.S.A. 2C:27-5, and false swearing, N.J.S.A. 2C:28-2. Subsequently, defendant was charged in a separate complaint, No. 2006-2023-0709 ("complaint 2023"), with aggravated assault, N.J.S.A. 2C:12-1(b)(5)(A); knowingly possessing a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); and knowingly possessing a weapon to use it unlawfully against another, N.J.S.A. 2C:39-4(d).

The State voluntarily dismissed complaint number 2026 and amended complaint number 2023 so that the charges against defendant were reduced to simple assault, N.J.S.A. 2C:12-1(a); harassment, N.J.S.A. 2C:33-4; and disorderly conduct, N.J.S.A. 2C:33-2. The downgraded charges were referred for a bench trial, which was conducted in the special remand court in Newark and presided over by a municipal judge.

During the course of the two-day trial, the State presented Sergeant Koontz, Detective Melenka, and Officer James. They all testified substantially in accordance with the facts described above. The State also moved into evidence the green bottle, and some of the liquid that it contained. Defendant did not testify or present any witnesses.

After considering these proofs, the municipal judge concluded that defendant had committed harassment, in violation of N.J.S.A. 2C:33-4(b). The judge found defendant not guilty of simple assault and did not place on the record a ruling on the separate disorderly conduct charge.

The municipal judge found all three police officers who testified for the State essentially credible. He noted that Officer James, who had seen the sprinkling from the bottle occur first-hand, was "extremely credible." The judge found that defendant was not "intentional[ly] trying to harass or spray [Sergeant] Koontz" with the green liquid. Even so, when she took defendant's bottle, "he went towards her with a stated purpose." The judge considered such purposeful conduct unlawful because at that point, although defendant was not trying to hit Sergeant Koontz, "[h]e was no longer a police officer, [and] he had no right to aggressively go after the bottle," or "to take the bottle back." The judge also found that defendant had placed Sergeant Koontz in fear because "he was acting improperly."

The judge ordered defendant to pay a $50 fine, a $50 assessment to the Violent Crimes Compensation Board, a $75 safe-neighborhood charge and $30 in court costs.

Upon its ensuing review of the record, the Law Division concluded, beyond a reasonable doubt, that defendant had "aggressively approached Sergeant Koontz." The Law Division found it obvious that defendant's purpose in doing so was to harass Sergeant Koontz, as demonstrated "not only by his behavior after the bottle was confiscated by Sergeant Koontz, but also by his actions and attitude when he caused the contents of the bottle to strike her." The Law Division determined that (1) defendant "clearly wanted to annoy and harass the officer who was supervising his departure"; (2) although retrieving his water bottle may have been "his ultimate goal, [defendant's] act of aggressively walking towards her while yelling was clearly undertaken to intimidate her into giving evidence back to him"; and (3) defendant had a "conscious objective to threaten or alarm [Sergeant Koontz] into handing the bottle over to him."

Having adopted the trier of fact's finding that the State had proven harassment beyond a reasonable doubt, the Law Division entered a judgment of conviction on December 14, 2007.

The judgment imposed the same fines and penalties that had been imposed by the municipal court.

On appeal to this court, defendant maintains that the State failed to establish, as a matter of law under N.J.S.A. 2C:33-4, the required element of purpose to harass. Defendant contends that his only purpose was to retrieve the bottle, not to intimidate or harass Sergeant Koontz. Like the two judges who have already considered this matter, we are not so persuaded.

N.J.S.A. 2C:33-4 states, in relevant part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

Each subsection of N.J.S.A. 2C:33-4 is "free-standing because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525 (1994). A conviction requires the State to prove, beyond a reasonable doubt, "two distinct elements: defendant had the requisite intent to harass and he committed a 'free-standing' offense," outlined in one of the subsections of the statute. State v. Duncan, 376 N.J. Super. 253, 260 (App. Div. 2005) (citations omitted). "A finding that defendant acted with a purpose or intent to harass another is integral to a determination of harassment." Id. at 261 (citing State v. Hoffman, 149 N.J. 564, 576 (1997)).

In the present case, defendant was convicted pursuant to subsection (b) of the statute. Defendant does not contest the Law Division's finding that his conduct "in aggressively advancing toward Sergeant Koontz and having to be restrained from attacking her, established at the very least, a 'threat' of assault under N.J.S.A. 2C:33-4(b)." Rather, defendant simply argues that "there is not sufficient evidence to establish" that defendant acted with a purpose to harass.

The phrase "with purpose to harass another" in N.J.S.A. 2C:33-4 imposes "a specific-intent requirement." State v. Mortimer, 135 N.J. 517, 536 (1994) (internal citations omitted). Accordingly, a conviction requires a showing that defendant has acted in a manner proscribed by the statute with the specific intent to harass the intended victim. Ibid. As our criminal code generally defines these state-of-mind concepts:

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

"With purpose," "designed," "with design" or equivalent terms have the same meaning. [N.J.S.A. 2C:2-2(b)(1).]

The assessment of a criminal actor's state of mind is not conducted in a vacuum. In particular, to determine whether N.J.S.A. 2C:33-4 has been violated, "courts must consider the totality of the circumstances." Cesare v. Cesare, 154 N.J. 394, 404 (1998) (citing Hoffman, supra, 149 N.J. at 584-85). In most cases, there is no "direct proof of intent." State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006). Purpose "may be inferred from the evidence presented. Common sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 576-77 (citations omitted).

In State v. Avena, 281 N.J. Super. 327 (App. Div. 1995), a case cited by the Law Division here, we determined that a purpose to harass was properly inferred where a defendant-employer, who had been making lewd comments to the victim-employee for about two weeks, "grabbed [the victim] by the hips and pulled her close to him." Id. at 330-31, 339-40.

Similarly, in State v. J.T., 294 N.J. Super. 540 (App. Div. 1996), we held that a defendant's purpose to harass could be inferred, based on the totality of the circumstances, where a defendant had previously violated a final restraining order and had been reminded at the sentencing to stay away from his wife. Nonetheless, he positioned himself just outside his wife's property, remained there for some time and then "moved in such a way that his wife could see him as soon as she opened the door." Id. at 542, 545. We concluded on those facts that a purpose to harass had been demonstrated.

In the present case, defendant argues that his sole purpose was a benign one: to get back his green bottle. That characterization vastly oversimplifies the situation. Defendant may well have wanted to have the item returned to him. However, the means by which he endeavored to get it back were manifestly aggressive and intimidating.

Defendant did not politely request the return of his property, or relent when it was made clear that it was being confiscated as an item of evidence. Instead, he lunged at the sergeant and screamed at her, backing her up against the wall. It took two other police officers to physically restrain him. Defendant escalated this confrontation in an unlawful manner designed to scare and intimidate Sergeant Koontz. Moreover, there is obvious circumstantial proof of a motive to harass Sergeant Koontz, given that she had played a principal role in the investigation that led to defendant's discharge.

In sum, there is ample credible evidence in the record to conclude that the State proved, beyond a reasonable doubt, that defendant acted with a purpose to harass Sergeant Koontz and thereby violated N.J.S.A. 2C:33-4. Moreover, we will not second-guess the trial court's credibility findings concerning the three unrebutted witnesses presented by the State, whose collective testimony clearly is sufficient to support this conviction. State v. Locurto, 157 N.J. 463, 471-72 (1999).

Although it is unfortunate that defendant's long career in law enforcement ended in a hostile encounter with a former colleague, we discern no basis to set his conviction aside.


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