August 28, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DANIEL M. ENDERS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-08-1012.
Donald F. Manno argued the cause for appellant.
Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief).
Before Judges Espinosa and Hoffman.
Defendant Daniel M. Enders appeals from his conviction for third-degree bias intimidation, N.J.S.A. 2C:16-1a(3). Defendant pled guilty after the court denied his motion to dismiss the bias intimidation count of the indictment. Defendant's plea agreement provided that he could appeal the Law Division's denial of his motion to dismiss. The court sentenced defendant to 180 days in the county jail and a two-year term of probation. For the reasons that follow, we reverse defendant's conviction.
The following facts are derived from the motion record. At 8:25 p.m. on February 16, 2011, Trooper Ian Fenkle of the New Jersey State Police, responded to a 9-1-1 call of a burning eight-to-ten-foot cross in an open field in Bass River Township. The 9-1-1 caller said she had seen three teenagers standing in a group on the same side of the road as the cross.
By the time Trooper Fenkle arrived, a fire fighter who lived nearby had already extinguished the fire. Trooper Fenkle discovered a one-gallon gasoline can behind the cross and determined that gasoline had been used to ignite the cross. Trooper Fenkle soon located the three individuals identified by the 9-1-1 caller and determined they were responsible for the burning cross. The threesome included defendant and two friends, co-defendants Christopher Hurrell and Nicholas Comis.
All three co-defendants initially denied any responsibility for the burning cross; however, while Trooper Fenkle spoke with Comis, he observed a liquid stain on Comis' left pant leg and detected an odor of petroleum based fuel. Comis then admitted his involvement in the cross burning, and his co-defendants eventually did as well. According to Trooper Fenkle, Comis told him that they had come upon the cross while walking through the woods, and that a gas can was nearby. The three decided to carry the cross out of the woods into a nearby field and douse it with the accelerant contained in the gas can and ignite it. Comis denied any bias or racial intent and claimed he was unaware of any African-American families living in the area.
According to Trooper Kenkle, while the location of the cross burning would not have been visible from any home in the area, it would have been visible to motorists traveling on Route 9. All three co-defendants were subsequently indicted for second-degree bias intimidation, N.J.S.A. 2C:16-1a(3) (count one) and third-degree arson, N.J.S.A. 2C:17-1b(5) (count two). Defendant moved to dismiss count one of the indictment, alleging bias intimidation, as it neither identified a victim nor alleged a purpose to intimidate.
The challenged count alleged that defendant
Did commit . . . the immediate commission of arson under circumstances that caused any victim to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed that either the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested in because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, to wit:
By burning a cross in a field[.]
The Law Division judge denied defendant's motion, concluding that the elements of bias intimidation "are minimally satisfied by the act of burning a cross by a highway where motorists could easily see it . . . ."
As part of a plea agreement, the State agreed to amend count two of the indictment from arson to fourth-degree failure to report a dangerous fire, N.J.S.A. 2C:17-1c, and to amend count one of the indictment to a charge of third-degree bias intimidation. At his plea hearing, defendant admitted participating in the cross burning and that he neither reported the fire nor attempted to put it out, and that such conduct created a dangerous condition that could have caused a forest fire. Regarding the issue of bias intimidation, the following colloquy occurred between defense counsel and defendant:
[Q]: Mr. Enders, was it your intention at the time to intimidate anybody on the basis of race, ethnicity, religion [or] sexual orientation?
[Q]: Okay. Do you agree that by virtue of this being a burning cross, that somebody could reasonably interpret it as threatening?
On this factual basis, the court found defendant guilty of third-degree bias intimidation. As part of the plea agreement, the court dismissed the fourth-degree failure to report a dangerous fire charge at sentencing. This appeal followed, with defendant arguing the trial court erred in failing to dismiss count one of the indictment.
"The purposes of the grand jury are to 'determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.'" State v. Toliver, 180 N.J. 164, 167 (2004) (quoting State v. Hogan, 144 N.J. 216, 227 (1996)). "We have demonstrated a greater willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors' ability to make an informed decision whether to indict." Hogan, supra, 144 N.J. at 229.
As our Supreme Court has noted:
In the grand jury setting, our law sharply distinguishes between evidence sufficient to support an indictment and the evidence necessary to establish guilt beyond a reasonable doubt. At the indictment stage, the State need not present evidence necessary to sustain a conviction, but only a showing sufficient for the grand jury to "determine that there is prima facie evidence to establish that a crime has been committed."
[In re State ex rel. A.D., 212 N.J. 200, 219-20 (2012) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984)).]
New Jersey's bias intimidation statute provides an enhanced penalty for the commission of enumerated predicate offenses, including arson and related offenses, N.J.S.A. 2C:17-1. Section (a) of the statute defines the elements of the crime:
Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.[A.] 2C:33-4; N.J.S.[A.] 2C:39-3; N.J.S.[A.] 2C:39-4 or N.J.S.[A.] 2C:39-5,
(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
N.J.S.A. 2C:16-1a(3) clearly contemplates a victim. The State's indictment failed to identify a victim and no evidence of a victim was presented to the grand jury. Fortunately for defendants, the cross was quickly extinguished.
The State argues that "regardless of whether the message is a political one or whether the message is also meant to intimidate, the burning cross is a 'symbol of hate.'" Virginia v. Black, 538 U.S. 343, 357, 123 S.Ct. 1536, 1546, 155 L.Ed.2d 535, 550 (2003) (quoting Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 771, 115 S.Ct. 2440, 2451, 132 L.Ed.2d 650, 657 (1995) (Thomas, J., concurring)). The State contends the grand jury could have reasonably concluded that anyone who witnessed the cross burning could have been intimidated, given the clear message a burning cross has conveyed throughout history, and thus the trial court correctly denied defendant's motion to dismiss the bias intimidation count of the indictment. We disagree.
N.J.S.A. 2C:16-1a(3) clearly contemplates an identifiable victim, not an abstract or hypothetical victim. There is no indication in the indictment or in the plea colloquy that there was any victim within the meaning of the statute.
In Virginia v. Black, supra, the United States Supreme Court held that Virginia could outlaw cross burning when performed for the purpose of intimidation. 538 U.S. at 363, 123 S.Ct. at 1549-50, 155 L.Ed.2d at 554. However, because cross burning was also a form of expression, the Court held unconstitutional a provision making the fact of burning a cross alone, without more, prima facie proof that the burning was done with the intent to intimidate. Id. at 364, 123 S.Ct. at 1550, 155 L.Ed.2d at 555. The Court stated that in creating the presumption, the law unconstitutionally burdened otherwise-protected expression. Id. at 364-67, 123 S.Ct. at 1550-53, 155 L.Ed.2d at 555-57.
Similarly, in State v. Pomianek, 429 N.J.Super. 339, 343 (App. Div. 2013), we recently concluded
that N.J.S.A. 2C:16-1a(3) would be unconstitutional if it permitted a defendant to be convicted of a bias offense based on the victim's perception of the defendant's conduct, without requiring the State to prove defendant's biased intent in committing the underlying crime. To avoid an interpretation that would render the provision unconstitutional, and to effectuate the Legislature's purpose in enacting the statute as reflected in the legislative history subsection (3) requires proof of defendant's biased intent
Because the trial court in Pomianek charged the jury that for purposes of subsection (3) it should consider the victim's perception of the crime rather than the defendant's intent in committing it we reversed the defendant's conviction for bias intimidation based on N.J.S.A. 2C:16-1a(3) Id at 343-44
Similarly in this case count one of the indictment was materially deficient in its failure to allege two of the required elements of a charge of bias intimidation under NJSA 2C:16-1a(3) namely that defendant committed the underlying crime (1) with a biased intent and (2) against an identifiable victim under circumstances that would cause the victim to reasonably believe that he or she (or his or her property) was targeted because of race color religion gender disability sexual orientation gender identity or expression national origin or ethnicity
Reversed and remanded for the entry of an order vacating defendant's judgment of conviction returning all fines and assessments and dismissing count one of the indictment
Reversed and remanded We do not retain jurisdiction