STATE OF NEW JERSEY v. JENNIFER BORCHERS et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2336-05T32336-05T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JENNIFER BORCHERS and

RICHARD BORCHERS,

Defendants-Respondents.

___________________________________________________________

 

Submitted May 2, 2006 - Decided May 17, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, I-1228-03-05.

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for appellant (Robert Luther,

Assistant Prosecutor, of counsel and on the brief).

No brief was filed on behalf of respondents.

PER CURIAM

A Camden County Grand Jury returned an indictment charging defendants, Jennifer and Richard Borchers, with two counts of fourth degree bias intimidation, N.J.S.A. 2C:16-1a. On Count 1, the underlying offense alleged was simple assault, N.J.S.A. 2C:12-1a(1); on Count 2, the underlying offense was harassment, N.J.S.A. 2C:33-4. Defendants moved before trial for dismissal of the indictment. The judge denied the motion as to Count 1 but dismissed Count 2 because he believed the State had failed to present evidence to the Grand Jury of defendants' purpose to harass. We granted the State's motion for leave to appeal and now reverse.

The evidence presented to the Grand Jury may be summarized as follows. Nicole Darrison is black, and the Borchers are white. On November 17, 2004, Darrison had her car towed to Good Year Auto Repair at a cost of $45. Later that day, she was informed that the car could not be repaired because the "engine was blown" and that it would be towed back to her residence at a cost of $60. She reluctantly agreed to the higher price and asked a friend to get the additional $15. Before her friend arrived, Borchers Towing pulled up with her car in tow, demanded payment of $60, refused to wait for the arrival of Darrison's friend, and towed the car to its lot in Gloucester. Darrison called Borchers and spoke to Jennifer Borcher, Richard's daughter. During the conversation, Jennifer called Darrison a
"black bitch and threatened to kick her ass." Darrison also spoke to Richard, who "threatened her and stated if she came to his lot he would have her arrested for trespassing and he would charge her with vehicle abandonment if she did not remove her vehicle." He also told her the charge was now $120 since he had towed the car from the repair shop to Darrison's residence and then to his lot. As a result of those conversations, Darrison asked her friend and a police officer to accompany her to Borchers.

When Darrison arrived at Borchers with her friend and the police officer, Richard Borchers became irate. The officer told him to calm down and that Darrison was there to pay for her car. Richard responded by calling Darrison a "'black bitch,'" and telling her to hurry up and pay. Richard also told the police officer to "[g]et this black nigger off his property" and continued to yell profanities. Jennifer charged Darrison, yelling, "Fucking bitch" and, "Fucking nigger," and "started throwing punches at her . . ., striking her several times." Darrison suffered a bruise near her right eye and scratches on her left shoulder. While the officer placed Jennifer in the back seat of his patrol car, Richard attacked Darrison "from behind and grabbed her around her neck," while saying "'I'm going to kill you, you fucking nigger.'" He ripped her shirt during the attack. Later on, Richard said that he hated "'[s]tupid fucking niggers.'" Darrison paid the bill and got her car back.

The judge dismissed the second count of the indictment because in his view the evidence did not show a purpose to harass. In short, he found that defendants "acted with the purpose to collect on a bill for towing services that they provided." He asserted that the officer immediately advised Richard that Darrison was there to pay the bill and that although Darrison was obviously upset about the amount of the bill, there was no evidence she ever refused to pay it. But the critical point overlooked by the judge is that a person can have more than one purpose at the same time. Even if we assume that the Borchers wanted their money, that does not mean that their verbal and physical attacks were not also carried out for the purpose of harassing the victim.

In relevant part, the Criminal Code defines harassment as follows:

2C:33-4. Harassment. Except as provided in subsection e., 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.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

There was more than sufficient evidence that defendants used "offensively coarse language" and otherwise spoke in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4a. They also struck the victim, engaged in "offensive touching" and made threats to do so. N.J.S.A. 2C:33-4b. Their overall conduct was also sufficiently alarming, including making a threat to kill, to come within N.J.S.A. 2C:33-4c. We cannot agree that the Grand Jury erred in concluding that all these acts were probably done with the purpose of harassing the victim simply because defendants might have had another purpose as well.

 
When the State has fairly presented a prima facie case, and the Grand Jury indicts, judicial interference by way of dismissal of the indictment for lack of evidence is inappropriate. State v. Hogan, 144 N.J. 216, 228 (1996); State v. Ramseur, 106 N.J. 123, 232 (1987); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987); State v. Bennett, 194 N.J. Super. 231, 234 (App. Div 1984), certif. denied, 101 N.J. 224 (1985).

Reversed and remanded for trial.

(continued)

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A-2336-05T3

May 17, 2006