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State of New Jersey v. Mark Merlino


November 29, 2011


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 44-10.

Per curiam.


Argued November 1, 2011 -

Before Judges Carchman and Baxter.

Following a trial de novo in the Law Division, defendant Mark Merlino appeals from his July 6, 2010 conviction on a charge of harassment, N.J.S.A. 2C:33-4(a). On appeal, defendant presents the following issues for our consideration:





We affirm.


Defendant lives in Moorestown, where his backyard abuts the backyard of Edwin Peterson. Defendant's rear porch is ninety feet away from the back of Peterson's home. Defendant and Peterson were formerly friends and business partners, but over the years their relationship soured. Thereafter, according to Peterson, defendant constantly raised his middle finger to Peterson in an obscene gesture, and used a video camera in April and May 2007 to film Peterson and his family. When asked why he believed defendant had videotaped him, Peterson answered "I figured he was just trying to annoy me." Peterson tolerated the videotaping for quite some time until he learned, in the spring of 2009, that defendant had been surreptitiously peering through Peterson's windows and filming Peterson and his family inside their home. Peterson testified that "it was pretty devastating" to learn that defendant had been filming him and his family in their home, adding that he is still "not comfortable in [his] house to this day."

Peterson also testified that on February 9, 2007, defendant placed a deer's head in a bucket and placed the head on defendant's back porch facing the direction of Peterson's property bearing a sign that read, "You'll never guess where this came from." Peterson explained that this incident annoyed and alarmed him because he feeds deer in his backyard. He explained that the deer head in the bucket had a "peculiar rack," and appeared to be the same deer that Peterson had been feeding. Peterson testified that defendant knew he enjoyed feeding deer on his property, because in the past, when their relationship was better, defendant and Peterson watched the deer together in their backyards.

Finally, Peterson testified that defendant constantly stared at him while defendant was standing with his arms folded. Peterson described defendant's stance as a confrontational stare designed to annoy him, stating "it's just annoying to have someone stare at you with their arms folded, gesturing. It was an aggressive gesture that was annoying."

At the conclusion of Peterson's testimony, defendant moved for a judgment of acquittal, arguing that the facts were insufficient to constitute the petty disorderly persons offense of harassment. The municipal court judge denied the motion, concluding that, in the context of the strained relationship between the two men, placing the deer head and provocative sign facing Peterson's house could constitute the offense of harassment under N.J.S.A. 2C:33-4(a).

After the judge denied his motion for acquittal, defendant took the stand, both to defend against the harassment charges Peterson had filed against him and also to support his own cross-complaints against Peterson. Defendant testified that he hunts deer in Burlington Township, and has a license to do so. He explained that after shooting a deer, he eats the meat, and the head is "a byproduct that's left over." Defendant admitted that on the day in question, after boiling the deer head, he put it "out back in a bucket." He further admitted affixing a sign that stated "you'll never guess where this came from." He insisted, however, that the sign "was written in pen that could not be viewed from Peterson's house," and asserted that Peterson had called defendant's brother-in-law to ask him "what was on the sign . . . because he could not read it from that far away."

Defendant maintained that the sign was intended as "a joke" because Peterson "and others always wanted to know where he, [defendant], hunted" but defendant typically refused to tell them. According to defendant, the "you'll never guess where this came from" sign was intended not to alarm or annoy Peterson, but rather to jest with him because of defendant's habit of being secretive about the locations where he hunted.

Defendant also denied staring at Peterson or gesturing at him with his middle finger. He did, however admit to videotaping Peterson's home and family. Defendant claimed he had done so at the suggestion of police officer Jay Dever that he "document everything as much as possible" because Peterson did not have a curtain on his rear bathroom window and defendant's family was able to see into Peterson's bathroom. Defendant claimed that Peterson's refusal to install a curtain or shade was offensive to him and his family, and it was for that reason that he chose to videotape Peterson's home. In a cross-complaint, defendant charged Peterson with the disorderly persons offense of lewdness. In a second complaint, defendant accused Peterson of loudly yelling, using vile language, and engaging in other conduct designed to annoy defendant and his family.

At the conclusion of the testimony, the municipal court judge made detailed credibility findings. As to defendant, the judge drew a sharp distinction between defendant's credibility as a victim in the complaints he had filed against Peterson, and his lack of credibility as a defendant facing the charges Peterson had filed. As to the former, the municipal court judge found defendant credible, stating:

I found the defendant, Merlino . . . to be [a] credible witness[]. Defendant, Merlino, appeared to be grateful to finally have his day in court to explain what he and his family had endured since February 2007.

His demeanor was forthright, frank and, under cross-examination, [he] made the appropriate concessions.

Yet, as to the case against defendant, the judge did not find defendant credible. Rather, the judge observed:

During the case against him, [Merlino] was less than forthright about all of his encounters with Mr. Peterson, specifically, while as a victim, Mr. Merlino testified that he was alarmed and annoyed at Mr. Peterson's constant aggressive stance and aggressive verbal behavior. [But a]s a defendant, Mr. Merlino claimed to work hard not to notice Mr. Peterson by using what he described as tunnel vision and purposefully avoiding eye contact. [(Emphasis added).]

Next, the municipal court judge made findings on each of the complaints. She found Peterson not guilty of lewdness, reasoning that the bottom half of Peterson's bathroom window was frosted and that the Merlino family would not have been able to see Peterson's private parts. She did, however, find Peterson guilty of harassment based upon his use of offensively coarse language likely to cause annoyance or alarm.

Turning to complaint number 2009-448 charging defendant with harassment involving the use of his video camera, the municipal court judge concluded that defendant's use of the camera to film the Peterson family was not done with the purpose to annoy or alarm Peterson, and found defendant not guilty of harassment on that complaint.

However, the municipal court judge found defendant guilty of harassment under complaint number 2007-157 for placing the deer head on his back porch facing the Peterson home. The judge reasoned that defendant violated N.J.S.A. 2C:33-4(a) when he "positioned the deer head and rack in such a manner as to be easily seen by Mr. Peterson. . . . Defendant did this because he knew that Mr. Peterson was a deer hunter and would want to know where to find such a deer . . . -- and taunted him with the hunting prize." The judge imposed a fine of $500, but suspended half the fine for a year, subject to defendant engaging in no further offenses against Peterson or his family.

Although both defendant and Peterson filed de novo appeals to the Law Division, Peterson ultimately withdrew his. At the conclusion of the trial de novo on complaint 2007-157, Judge Kelly found defendant guilty of harassment under N.J.S.A. 2C:33-4(a). The judge reasoned that the act of placing the deer head ninety feet away from Peterson's house with a taunting sign attached to the bucket was for the purpose of harassing and "agitating" Peterson, with whom defendant had an antagonistic relationship. Judge Kelly also concluded that the placement of the head, and defendant's decision to shoot the same deer Peterson had been feeding, lent further support to the conclusion that defendant's conduct was for the purpose of harassing Peterson, and that the entire episode was accomplished in a manner likely to cause annoyance or alarm. Relying on State v. Hoffman, 149 N.J. 564, 585 (1997), Judge Kelly reasoned that defendant's purpose to harass should not be evaluated in a vacuum, but should instead be considered in the context of the entire adversarial and confrontational relationship existing between defendant and Peterson. The judge noted that by placing the deer head and the sign on his porch facing Peterson's property, defendant had made a "communication" within the meaning of N.J.S.A. 2C:33-4(a). The judge did, however, reduce the fine imposed by the municipal court judge, imposing a $100 fine and court costs of $33.


In a trial de novo in the Law Division, the judge is obliged to determine the case completely anew based on the record made in the municipal court, giving due regard, although not necessarily controlling weight, to the municipal court judge's opportunity to evaluate the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 159 (1964). In a trial de novo, the judge must make his or her own findings of fact based upon the record that was created in the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999).

In our review of the Law Division's findings of fact, we are obliged to affirm so long as those findings "could reasonably have been reached upon sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We should not alter the Law Division's factual findings merely because we might have reached a different conclusion. Ibid. Only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid.

Although we are bound by the Law Division's findings of fact unless those findings are unsupported by the record, we owe no deference to the Law Division judge's legal conclusions, which we review de novo. State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).

N.J.S.A. 2C:33-4(a) provides 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 . . . anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.] [N.J.S.A. 2C:33-4(a).]

In Point II, defendant argues that the State failed to prove him guilty of harassment. He maintains that the sign and deer head were placed on his property, "not with the purpose to harass Mr. Peterson but was directed towards all hunters." He further maintains the "alleged act of harassment occurred solely on [his own] property [and] was not a threat or physical act of aggression with his deer head propped up on [his] property[.] [He] has the right to do what he wants on his [own] property[.]" These contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

As Judge Kelly correctly observed, Hoffman, supra, 149 N.J. at 585, directs us to evaluate a defendant's conduct not in a vacuum, but rather in the context of the overall relationship between the parties. The determination of whether a defendant possessed the requisite purpose to harass should be evaluated in that context. Ibid. The record amply supports Judge Kelly's conclusion that in light of the acrimonious relationship between defendant and Peterson, defendant's conduct of placing a severed deer head and provocative sign facing Peterson's house was designed to harass Peterson; and was accomplished in a manner likely to cause annoyance or alarm, especially because the deer head belonged to the very deer that Peterson had been feeding. We reject the claim defendant advances in Point II, as we are satisfied that the State proved a violation of N.J.S.A. 2C:33-4(a) beyond a reasonable doubt.


In Point III, defendant maintains that his conviction should be reversed because the Law Division found him guilty of harassment under subsection (a) even though the complaint charged him only with a violation of subsection (c) of N.J.S.A. 2C:33-4. As the State correctly observes, the subsection (c) charge pertained only to complaint 2009-448, of which defendant was found not guilty. The charge involving the deer head was contained within complaint 2007-157, which alleges harassment pursuant to subsection (a). Accordingly, Judge Kelly properly focused on subsection (a) of N.J.S.A. 2C:33-4 when he found defendant guilty of harassment for his conduct involving the deer head and the sign.


Finally, in Point IV, defendant maintains the State did not satisfy its burden of proving him guilty beyond a reasonable doubt. As we have already noted, the record amply supports Judge Kelly's finding that defendant was guilty. We need not discuss defendant's argument further.



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