STATE OF NEW JERSEY v. JASON CAMPBELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4544-11T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JASON CAMPBELL,

Defendant-Respondent.

_________________________________________

March 1, 2013

 

Argued October 24, 2012 - Decided

 

Before Judges Axelrad and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 11-05-0521.

 

Paula Jordao, Assistant Prosecutor, argued the cause for appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

 

Joseph M. Corazza argued the cause for respondent (Daggett, Kraemer, Kovach & Gjelsvik, attorneys; Donald L. Kovach and Frederic G. Weber, of counsel; Mr. Corazza, on the brief).

PER CURIAM

On leave granted, the State appeals from an order dismissing the first three counts of a ten-count indictment alleging defendant Jason Campbell, a volunteer firefighter and formerly the Acting Chief of the Parsippany-Troy Hills District Five Fire Company, deliberately set fires that destroyed two buildings in Parsippany. The indictment's first three counts charged defendant with second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) (count one); third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count two); and second-degree official misconduct, N.J.S.A. 2C:30-2(a) (count three); for entering into and deliberately setting the fire that destroyed an unoccupied house at 12 Ute Avenue. The remaining counts of the indictment charged defendant with second-degree attempted aggravated arson, N.J.S.A. 2C:5-1(a)(1) and 2C:17-1(a)(2) (count four); two counts of second-degree conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and 2C:17-1(a)(2) (counts five and seven); one count of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) (count six); and three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts eight through ten); for deliberately setting the fire that destroyed a garage on Old Bloomfield Avenue.

The trial court found the circumstantial evidence presented by the State to the grand jury insufficient to prove defendant was present when the fire started in the Ute Avenue house. Having examined the grand jury testimony in light of the State's arguments, we conclude the State presented sufficient circumstantial evidence to establish the offenses. Accordingly, we reverse, reinstate the indictment, and remand.

I.

The State presented the following evidence to the grand jury through the testimony of Detective Christoph Kimker of the Morris County Major Crimes Arson Unit, and co-conspirator Antonio Rizzolo. On September 14, 2008, around one o'clock in the morning, a fire started in a detached garage on Old Bloomfield Avenue. The garage was located on a property behind defendant's mother's home. At approximately 1:17 a.m., Parsippany-Troy Hills police officers were dispatched in response to a report that an active fire had broken out at that location. By the time the officers arrived, the garage was engulfed in flames. The District Five Fire Company arrived and extinguished the fire. At the time, defendant was the Acting Chief of the fire company because the Chief was away.

The owner of the property told authorities the property was tenant occupied, but the garage was locked and none of the tenants had used the garage in the past five years. One of the tenants told law enforcement officers that he had heard a noise, looked outside, and saw the fire in the garage. He called 911 and reported it. The police suspected that the fire was arson because there were no active electric utilities in the garage. However, no suspects were identified at that time.

Nearly two years later, on June 6, 2010, around 1:00 p.m., a fire started in a vacant house on Ute Avenue. Patrol officers responded to a 1:06 p.m. call of a fire in progress at 12 Ute Avenue. Upon their arrival, they saw flames in the rear of the residence. When firemen from the District Five and Boonton Fire Companies arrived, they found that all of the doors to the house were locked. They broke the side door of the residence and eventually extinguished the fire. At the time of the second fire, defendant had also assumed the role of Acting Chief.

Detective Kimker was assigned to investigate the fire. As part of his investigation, he interviewed the property's owner, who said he was renovating the house and intended to "flip" it. However, no one was working at the house on the day of the fire.

A neighbor, George Haeussler, told police the house had been vacant for a couple of years, but recently people had been working there. Haeussler also told police he had seen two males in jeans and t-shirts in the backyard the night before the fire, between 8:00 and 9:00 p.m. He did not see them enter the home. Another neighbor, Curt Kuber, told the police that defendant's sister lived next door at 10 Ute Avenue. Between eight o'clock and nine o'clock on the morning of the fire, Kuber had seen defendant knock on the door of his sister's home. Kuber, who had known defendant's family for years, thought defendant was bringing breakfast to his sister.

Later that morning, Kuber heard defendant yell in the direction of 12 Ute Avenue, "Hey you, get out of there[.]" Shortly after yelling, defendant told Kuber three "kids," one defendant described as black, were over by the vacant house. Kuber was unaware of any black children in the area. Kuber neither saw nor heard any children, and thought that it would be unusual for children to be in the area. Kuber told Kimker the property was an "eyesore." Detectives subsequently obtained defendant's cell phone records, which placed defendant in the area of the vacant house on the morning of the fire.

Detective David Guth, an arson investigator employed by the Parsippany-Troy Hills Police Department, interviewed defendant in his capacity as Acting Chief of the District Five Fire Company. During the interview, defendant did not mention that he had been at his sister's home that morning, and did not mention seeing three children near 12 Ute Avenue.

Based on his examination of the scene and his review of witness statements, Detective Guth believed the fire originated beneath a stairway in the house, near an electrical outlet. There was no electricity in the house, and no weather events had occurred that might have ignited the blaze. Detective Guth collected a substance near the point of origin of the fire, which he believed might have been an accelerant. A forensic scientist from the New Jersey State Police Office of Forensic Sciences determined the chemical composition of the substance to be that of road flares.

Detective Guth also learned that on the morning of the fire, the District Five Fire Company practiced a fire drill from eight o'clock to noon. During the drill, defendant left for approximately one hour to get water for the other fire fighters. That was unusual because there was water in the nearby firehouse, and typically lower ranking firefighters, not the Acting Chief, obtained water. Defendant returned before the fire call was received by the District Five Fire Company. Some members told Detective Guth that defendant missed the entire drill and returned only as they were finishing.

In addition to being a volunteer firefighter, defendant was employed as an officer with the Morris County Sheriff's Office during the times that the fires occurred. The Morris County Sheriff's Office sponsored an Explorers Program, which was designed to train young adults for careers in law enforcement. Defendant was an advisor in the Explorers Program and in that role became a mentor to a teenager named Anthony Rizzolo. By the summer of 2010, defendant was no longer involved in the program.

In July 2010, Morris County Sheriff Detective Brian Stanton drove the Explorers out of state to a national Explorers competition. During the trip, Rizzolo told Stanton about defendant setting a fire to an abandoned garage. Approximately two months after the Ute Avenue fire, on July 27, 2010, Detective Stanton told Detective Kimker that Rizzolo revealed he and defendant had started a garage fire in 2008.

Following up on the information received from Detective Stanton, Detective Kimker learned that defendant's mother lived next to 116 Old Bloomfield Avenue when a fire destroyed a detached garage at that address on September 14, 2008. On October 15, 2010, Detective Kimker interviewed Rizzolo, who confessed to setting the fire with defendant. Rizzolo had become involved in the Morris County Sheriff's Explorers Program when he was fifteen years old. Through the program, he met defendant, who became his mentor and advisor. The two became close friends and Rizzolo started to baby-sit defendant's children. Rizzolo was eighteen when he and defendant started the fire in the Old Bloomfield Avenue garage.

On the night of the fire, Rizzolo went to defendant's house to hang out. While there, defendant told him a group of "Mexicans" were drinking in the abandoned garage behind his mother's home and throwing beer cans on her property. Defendant decided to burn the garage down so the Mexicans could not drink there anymore.

At approximately 9:45 p.m., defendant drove Rizzolo to the District Five firehouse where they got latex gloves to conceal their fingerprints. While at the firehouse, defendant handed Rizzolo a road flare and told him to rip the metal sticks off so that when the flare burned, nothing would remain. Defendant removed the metal sticks from a second flare.

They then drove to the area of 116 Old Bloomfield Avenue, parked at the end of the street, walked through a field to the detached garage, and entered through a side window. The lights were not on, but there was light from the moon. Defendant lit the flares and set them next to an electrical box so that it would look like an electrical fire occurred. They left through the same window and drove to defendant's home.

No fire had been reported by midnight. Defendant and Rizzolo drove back to the firehouse, put on latex gloves and grabbed four flares, removed the metal sticks from the flares, and drove back to the Old Bloomfield Avenue garage. After placing two lit flares next to the electrical box and two lit flares near newspapers, they left and returned to defendant's home where they received a call of a fire in progress. Defendant ran out of the house. Defendant's wife drove Rizzolo to watch the fire.

Defendant was subsequently arrested, charged, and indicted. He filed a motion to dismiss the first three counts of the indictment, arguing that the evidence presented by the State to the grand jury did not establish a prima facie case that he started the 12 Ute Avenue fire. The trial court agreed and dismissed those counts.

The court first addressed count two, burglary, and noted that an element of burglary is a person's entry into a structure for the purpose of committing an offense therein. The court found the State presented no evidence that defendant was present when the fire started. The court explained:

There is no evidence presented whatsoever that the defendant ever entered into the property or onto the property that was the subject of this fire. The best evidence that the State produced shows that on the day in question in the early morning sometime between 8 and 9 o'clock a.m. that the defendant was at the, was observed by a witness on the street delivering breakfast to his sister. This was some 4 to 5 hours before the report of the fire.

 

. . . .

 

The testimony that the defendant was later in the morning engaged in a fire drill and that he left for about one hour at some unspecified time between 8 a.m. and 12 noon to get water for the company does not persuade me that the defendant had the opportunity to have started this fire, particularly when the arson investigator testified that if the fire was started by this flare, that a fire would have spread very rapidly. He certainly couldn't have done it when he visited his sister and was observed at the time, earlier in the morning.

 

Interestingly enough, no proof is presented to the grand jury as to what time he actually returned to the fire drill site. And there is no evidence presented as to whether or not he actually brought back water, whether or not he actually fulfilled the task that he was supposed to have done. The questions are left unanswered. And speculation is not a substitute for proof.

 

The court also noted the State presented no evidence to link defendant to the flare that started the fire at the vacant house on Ute Avenue. The court explicitly rejected the State's argument that defendant's use of a flare to start the earlier fire established a nexus to defendant and the flare used to start the Ute Avenue fire.

The court next reasoned that the charge of arson requires proof that a defendant started a fire on his own property or property of another, with the purpose of destroying a building or structure; and "[t]here simply is no evidence . . . that the defendant did anything on that day to start a fire. The grand jury testimony is devoid of any link between this defendant and the fire[.]"

Lastly, the court explained the offense of official misconduct requires that a defendant have the "purpose to obtain a benefit for himself or another or to injure or deprive another of a benefit[.]" The court observed that the grand jury testimony was "confusing at first about whether they were seeking to claim that it was official misconduct by virtue of his status as a volunteer firefighter or a sheriff's officer, or both." Concluding that the grand jury presentation related to defendant's capacity as a firefighter, the court reiterated there was no evidence to establish defendant started the fire at the vacant house. The court further concluded there was "insufficient evidence that he derived any benefit from, from starting this fire and responding to it." The court rejected the State's theory that defendant started the fire to remove an eyesore, because the grand jury testimony was unclear as to whether the witness's reference to an "eyesore" referred to the condition of the Ute Avenue house before or after the fire.

II.

When a party appeals from an order granting or denying a motion to dismiss an indictment, we will not generally disturb the trial court's "exercise of discretionary authority . . . unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996). Our evaluation of the trial court's exercise of discretion is informed by well-settled principles concerning the role and function of the grand jury.

"[T]he grand jury must determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." Id. at 227. "The absence of any evidence to support the charges would render the indictment palpably defective and subject to dismissal." State v. Morrison, 188 N.J. 2, 12 (2006) (quotation marks omitted). A trial court should not exercise its discretion to dismiss an indictment, however, "except on the clearest and plainest ground and an indictment should stand unless it is palpably defective." State v. N.J. Trade Waste Ass'n., 96 N.J. 8, 18-19 (1984) (quotation marks omitted).

When a trial court analyzes a motion to dismiss counts of an indictment based on inadequate evidence, it "should evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." Morrison, supra, 188 N.J. at 13. The court must "view[] the evidence and the reasonable inferences that can be drawn from them from the perspective most favorable to the State." In re A.D., 212 N.J. 200, 219 (2012). "An inference is a deduction which may or may not be made from certain proven facts." State v. Corby, 28 N.J. 106, 114 (1958). The deduction is permissive, and "the reason of the jury may or may not reach [it] without express direction of law." Ibid.

The critical issue before the trial court, and now before us, is whether the grand jury could reasonably have inferred from the State's evidence that defendant entered the Ute Avenue house and started the fire. We conclude the grand jury could have reasonably made those inferences. For that reason, we also conclude the indictment was not palpably defective, and the trial court misapplied its discretion by ruling to the contrary.

Unquestionably, the State was required to prove as an element of aggravated arson that defendant started the fire. N.J.S.A. 2C:17-1 defines the offense as follows:

a. Aggravated arson. A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's:

 

. . . .

 

(2) With the purpose of destroying a building or structure of another[.]

 

The State was also required to prove as an element of burglary that defendant entered the Ute Avenue house. The burglary statute states:

a. Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

 

(1) Enters a . . . structure [.]

 

[N.J.S.A. 2C:18-2.]

 

Here, the grand jury could have reasonably inferred from the State's evidence, including the similarities between the two fires, that defendant entered the vacant Ute Avenue house and ignited the fire. The Bloomfield Avenue garage was adjacent to defendant's mother's home. The Ute Avenue house was next to his sister's home. Defendant used flares to ignite the fire at the Bloomfield Avenue garage. A flare was used to ignite the fire at the Ute Avenue house. Defendant placed two flares next to an electrical box in the Bloomfield Avenue garage to make it look as though an electrical fire occurred. The point of origin of the Ute Avenue fire started by a flare was beneath a stairway, near an electrical outlet.1

In addition, defendant behaved suspiciously throughout the morning of the day the Ute Avenue fire occurred. The grand jury reasonably could have inferred from Kuber's statements to police that "three kids" were not actually present when defendant yelled, "hey you, get out of there," from his sister's property toward the vacant house on the day of the fire. Kuber saw no children, and thought it would be unusual that children would be in the area of the vacant home that morning. The grand jury could have reasonably inferred from this evidence that defendant was planting the seed of suspicion so that authorities would later conclude three children started the fire.

Further, from defendant's absence from the fire drill throughout the morning, and the improbability that he, as Acting Chief, would retrieve water from some unknown location instead of the firehouse, the grand jury could have inferred that he was attempting to conceal his actual whereabouts when the fire started.

To be sure, the grand jury could have rejected such inferences, or drawn other inferences from the same evidence. But the question was not whether the grand jury could have rejected such inferences, or drawn other possible inferences. The trial court's task was to determine only whether such inferences were reasonable. Collectively, the inferences were reasonable and established a well-grounded suspicion or belief that defendant was present and had ignited the fire. See In Re A.D., supra, 212 N.J. at 220 ("The grand jury thus limits its inquiry, sometimes called a determination of probable cause, to the threshold question of whether there is a prima facie showing, considering the evidence and the reasonable inferences that can be derived from it, subject to judicial review of the evidence in the light most favorable to the State.").

We reach a similar conclusion concerning the trial court's dismissal of the third count, charging defendant with official misconduct.

A pubic servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

 

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner[.]

 

[N.J.S.A. 2C:30-2.]

 

The grand jury heard that defendant was previously motivated to commit a fire to remove an undesirable structure next to his mother's house. The State presented evidence from which the grand jury could have inferred that the vacant home was an "eyesore." Moreover, the vacant house was next door to his sister's home. A jury could have inferred he was motivated, as in the prior instance, to start the fire to remove a nuisance to benefit his sister.

R

eversed, indictment reinstated, and remanded for further proceedings. We do not retain jurisdiction.

1 We express no opinion on whether the evidence from the Bloomfield Avenue garage fire would be admissible at trial to establish defendant's identity. See N.J.R.E. 404(b). The evidence was admissible at the grand jury presentation. See N.J.R.E. 101(a)(2)(d).