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State v. Theime


March 30, 2009


On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal Nos. 5816 and 5817.

Per curiam.


Submitted January 29, 2009

Before Judges Axelrad and Messano.

Defendants Bernadette Theime and Anthony Nardiello appeal from the judgments of conviction that followed the de novo trial of their municipal appeals in the Law Division.*fn1 Theime was found guilty of two counts of criminal mischief, N.J.S.A. 2C:17-3(a)(1), and one count of trespass, N.J.S.A. 2C:18-3(b).*fn2 After merger, the Law Division judge fined her $1000, ordered her to perform thirty days of community service, and imposed the appropriate statutory penalties. Nardiello was found guilty of harassment, N.J.S.A. 2C:33-4, fined $500, ordered to perform thirty days of community service, and the appropriate statutory penalties were imposed. The community service aspect of each sentence reflected a reduction from the ninety days of service the municipal court judge had imposed on each defendant.

On appeal, defendants raise the following arguments for our consideration:







We have considered these arguments in light of the record and applicable legal standards. We affirm.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether or not the State has carried its burden of proof. State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979).

This matter had its genesis in an ongoing boundary dispute between defendants, who lived together at 1559 Ridgeway Street, Union Township, and their neighbors, Josephine Teffar and Daniel Beyrent, who resided next door at 1555 Ridgeway Street. The parties appeared in the municipal court, having signed cross-complaints against each other, and the matters were prosecuted by private counsel retained by each side.

We need not recount the entirety of the testimony, which spanned three separate trial days, in order to address defendants' arguments. Beyrent testified that on July 7, 2006, he excavated a trench along the driveway on his property to install decorative curbing. The driveway was quite close to defendants' property and the fence that separated the two lots. Beyrent placed "yellow caution tape" around the trench for safety reasons. He observed both defendants use a garden hose to run water under the fence, and saw Nardiello use a garden hoe to push dirt under the fence and into the trench. Nardiello claimed he was watering newly-planted shrubs, but Beyrent disputed this, claiming there were no shrubs and the entire area had been reduced to mud.

Several days later, the condition continued. Defendants apparently created a small trench to cause the water to flow from the hose on their side of the fence onto Beyrent's property. In doing so, Beyrent testified that defendants were "washing out the dirt underneath" the "walkway." Beyrent was taking photos of the scene when Nardiello, who was by the fence, "stood up with the garden hoe and swung at [him], nearly hitting [him] in the face[.]" Beyrent captured the incident, and the damage done to the property, with his video camera.

In the past, Beyrent had complained about the location of the fence to township officials, and the building department had issued a letter to Theime indicating that the fence encroached six inches unto the Beyrent/Teffar property and that it should be moved in accordance with the building code. Defendants disputed that the fence was on their neighbors' property.

Beyrent also testified that he had installed a video camera "at the peak of [his] roof" to survey the area "over the gateway to the back of [his] house." He claimed to have previously installed two cameras at a lower point on the house and Theime had "constantly moved and pushed [them] to the side[.]" Beyrent played a videotape from yet another camera that showed Theime using a long pole with a hook at the end to reach the wiring for the camera and "pull[] on it." The video function of the camera was destroyed as a result. On August 30, 2006, although he was not present, Beyrent also videotaped Theime "standing halfway in [his] driveway... [with] her hands wrapped around one of the stakes holding up one of the caution tape[s]" and ripping it out of the ground. This video was also played for the municipal court judge.

Both defendants contend that there was insufficient proof "that either [] intended to engage in the alleged criminal conduct." Nardiello claims that the State failed to adduce sufficient evidence that he intended to harass Beyrent. Theime contends that she cannot be guilty of criminal trespass because she reasonably believed she was on her own property, and that she cannot be guilty of criminal mischief because there was insufficient evidence to demonstrate she actually damaged Beyrent's video camera, and, even if there was sufficient evidence, she "had the right to remove [the] camera by reasonable means" because it was invading her privacy.

In pertinent part, a person commits "harassment" if:

[W]ith purpose to harass another, he:....

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 (emphasis added).]

"A finding of a purpose to harass may be inferred from the evidence presented. Common sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997) (citations omitted). As to Nardiello, the Law Division judge noted that "intent can be gathered from the conduct, words, or acts of the party[.]" He found "credible" the "pictures depicting [defendant] with a garden hose, pushing water underneath the fence under his neighbor's driveway...." He stated "[t]he swinging of the garden hose (sic) at your neighbor can have no other purpose than to harass and to intimidate." Even if there was not sufficient evidence that Nardiello engaged in "a course of alarming conduct" or "repeatedly committed acts," we agree with the trial judge that the evidence supported a finding beyond a reasonable doubt that he violated N.J.S.A. 2C:33-4(b), and we affirm Nardiello's conviction substantially for the reasons expressed by the judge.

A person is guilty of criminal mischief if she "[p]urposely or knowingly damages tangible property of another[.]" N.J.S.A. 2C:17-3(a)(1). Additionally,

A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor; or

(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(3) Fencing or other enclosure manifestly designed to exclude intruders. [N.J.S.A. 2C:18-3(b).]

The Law Division judge, relying on the videotape from the surveillance cameras, concluded Thieme was "hanging out of a window holding a long pole with an attached hook on the end, and [it] shows [] defendant hooking and pulling on the complainant's mounted camera and ultimately breaking it." The judge also determined that on August 30, Thieme "enter[ed] onto [Beyrent's] property and [] ripp[ed] [] the [caution] tape," and that "she was on notice that [she] was not to enter the property." Finding the trespass and the criminal mischief as to this latter event was "basically the same offense," the judge merged the former into the latter.

Assuming arguendo the videotapes were admissible, an issue we discuss below, we are hard-pressed to comprehend Thieme's argument. The clear inference from the videotape of the camera incident is that defendant had a long pole, she reached from her window to the camera, she pulled on it, and the video function of the camera was irreparably damaged. This evidence clearly supports a finding beyond a reasonable doubt of a violation of N.J.S.A. 2C:17-3(a)(1).

As to the second incident, the videotape disclosed that Thieme was seen standing "halfway" in Beyrent's driveway, ripping out of the ground a stake that supported the yellow caution tape. Although she contends the property line was disputed, and she "had an honest and reasonable belief that she was on her own property," the trial judge was entitled to reach his own conclusion regarding her credibility. Furthermore, he found that Thieme knew that she was not permitted on Beyrent's property, a reasonable inference based upon the evidence of the ongoing dispute between the parties. We find no basis for reversal.

Defendants next argue that the various videotapes were improperly admitted into evidence "because they were not authenticated," since "[n]o witness testified that they (sic) had personal knowledge that either video accurately depicted the alleged actions of [defendant]." We disagree.

Proper authentication of a videotape usually requires "testimony by a person present at the time the motion pictures were taken that the pictures accurately depict the events as that person saw them when they occurred." State v. Wilson, 135 N.J. 4, 17 (1994) (citing Balian v. General Motors, 121 N.J. Super. 118, 125 (App. Div. 1972), certif. denied, 62 N.J. 195 (1973)). However, the actual presence of a witness to confirm the accuracy of the filmed events is unnecessary when, as here, the video taping system actually captures the criminal events.

In those situations, we have said, "The authentication of a film which purports to portray an actual criminal event taking place would not require the same type of authentication as in Balian." State v. Bunting, 187 N.J. Super. 506, 509 (App. Div.), certif. denied, 95 N.J. 181 (1983) (admitting videotape of bank robbery without any witness testifying as to the accuracy of the details of the tape). Instead, "[a]ll that is required for authenticity is proof that the matter is what its proponent claims." State v. Loftin, 287 N.J. Super. 76, 99 (App. Div.), certif. denied, 144 N.J. 175 (1996); see also State v. Tarlowe, 370 N.J. Super. 224, 235 (App. Div. 2004) (admitting time-lapse video surveillance tape taken inside supermarket).

Here, Beyrent testified regarding the operation of the cameras and the field of vision they captured. Having determined the tapes were "properly authenticated," the Law Division judge reasonably exercised his discretion in admitting them into evidence. See State v. Johnson, 120 N.J. 263, 297 (1990) (holding the decision to admit or exclude crime scene photographs rests with the sound discretion of the trial judge). We find no basis for reversal.

Lastly, defendants' argument regarding the excessive nature of their sentences is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Our role in reviewing the trial judge's sentence is a limited one, and we will "not substitute [our] judgment for that of the lower court... unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Generally speaking, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

Here, the judge found that defendants displayed a level of "immaturity" that was "very difficult to resolve." Defendant Nardiello, in an apparent fit of pique, among other things, swung a garden hoe at Beyrent. Thieme destroyed Beyrent's property on two separate occasions, similarly displaying a level of immaturity that is difficult to comprehend. In short, the sentences imposed do not "shock [our] judicial conscience."


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