STATE OF NEW JERSEY IN THE INTEREST OF M.R

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6515-06T46515-06T4

STATE OF NEW JERSEY

IN THE INTEREST OF M.R.

___________________________

 

Submitted: September 10, 2008 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FJ-21-475-06.

Yvonne Smith Segars, Public Defender, attor ney for appellant M.R. (John A. Albright, Designated Counsel, of counsel and on the brief).

Thomas S. Ferguson, Warren County Prosecu tor, attorney for respondent State of New Jersey (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

M.R., a juvenile, appeals from an adjudication of delin quency on January 23, 2007, following a bench trial for acts that, if committed by an adult, would constitute third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(a). The Family Part judge found beyond a reasonable doubt that the juve nile made terroristic threats and dismissed the second count of the juvenile complaint alleging harassment in violation of N.J.S.A. 2C:33-4(a) on the State's motion.

On March 6, 2007, the juvenile pled guilty to two addi tional charges of harassment in exchange for the State's recom mendation of concurrent dispositions. The judge imposed proba tion on the juvenile for one year on all three adjudications and ordered him to spend fifteen days in the Warren Acres Juvenile Facility, with twelve days suspended; perform forty-five hours of community service; send letters of apology; and pay all applicable fines and penalties.

On the evening of May 17, 2007, the juvenile made multiple telephone calls to a classmate, fourteen-year-old M.M., during which the juvenile made sexual remarks about their teacher, J.F., and said that he would put a bomb in the middle school to destroy it because the juvenile hated everyone, especially J.F. M.M. believed what the juvenile said, believed that he was going to be blown up, and as a result, M.M. was afraid. Although M.M. was scared and nervous, he did not relate the remarks to his mother or anyone else until he arrived at school the next day. M.M. then told J.F., the first teacher he saw, about the threats and she said, "Oh, my God." She reported the threats to the principal and the police were notified. M.M. did not see the juvenile at school that day.

M.M.'s mother testified that the juvenile made several tele phone calls to her home that evening and that the calls made M.M. stressed, angry, and upset. She heard M.M. continually scream into the phone telling the juvenile not to call back, not to say that stuff, "you're disgusting," and then hang up only to have the telephone ring again, whereupon M.M. would repeat his screaming statements. M.M.'s mother testified that she had never seen her son so upset and that he is not easily upset.

At the close of the State's case, the juvenile moved for a judgment of acquittal pursuant to State v. Reyes, 50 N.J. 454 (1967), claiming that the evidence was insufficient to prove each element of a terroristic threat beyond a reasonable doubt. The judge denied the motion and the juvenile testified in his own behalf.

The juvenile stated that he did not recall making any com ments about blowing up the middle school. He claimed that he made only one telephone call. He made that call because he was trying to get M.M. to tell him what J.F. was saying about the juvenile behind his back, because "there was this whole thing going on between" J.F. and the juvenile. He admitted that "a threat to blow up the school . . . could make someone afraid." Then, he denied making any such threat contrary to his initial testimony that he could not recall.

At the conclusion of the evidence, the judge carefully explained her findings respecting the credibility of the three witnesses, ultimately concluding that the State's witnesses were both highly credible and that the juvenile was not. She found that the State had proven beyond a reasonable doubt that the juvenile made multiple calls to M.M., he threatened to place a bomb in the school, the threat was made with reckless disregard to causing M.M. terror, and M.M. was terrorized as a result. Thus, she concluded that the juvenile was guilty as charged of making terroristic threats. The State then moved to have the harassment charge dismissed. The judge inquired if it was a lesser-included offense, which the prosecutor acknowledged, and the judge dismissed that charge. This appeal followed.

The juvenile raises the following issues for our consideration:

I. THE ADJUDICATION OF DELINQUENCY FOR TER RORISTIC THREATS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CON SIDER THE LESSER[-]INCLUDED OFFENSE OF HARRASSMENT ON THE RECORD AS REQUIRED BY LAW (NOT RAISED BELOW).

II. THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THE REQUIRED ELEMENTS OF THE OFFENSE, NAMELY, THAT THE ALLEGED THREAT REASONABLY CONVEYED THE MENANCE OF FEAR OR DEATH TO THE ORDINARY HEARER AND THAT THE JUVENILE HAD THE REQUISITE MENS REA ALLEGED BY THE STATE AND APPLIED BY THE TRIAL COURT.

A. The Legal Standard Applied To A Motion For Judgment Of Acquittal.

B. The Elements Of The Charged Offenses Of Terroristic Threats And Harassment.

C. Proof Of All Of The Elements Of The Terroristic Threats Offense, To Wit, That The Alleged Threat Would Reasonably Convey The Fear Of Death Of Serious Bodily Injury To The Ordinary Hearer, And Of The Requisite Mens Rea, Is Absent From The Facts Contained In The Record And The Conclusory Findings Of The Trial Judge.

Our review of a judge's decision in a criminal trial is lim ited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on suffi cient credible evidence present in the record." State v. John son, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where 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 . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.

Additionally, it is well-settled that we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public inter est.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted); see also State v. Churchdale Leasing, Inc., 115 N.J. 83, 100-01 (1989).

Here, the juvenile had ample opportunity to address the judge after the prosecutor reminded her that the juvenile had been charged with two offenses. Instead, his counsel merely thanked the judge for dismissing the harassment charge. Thus, the issue raised by the juvenile respecting consideration of the harassment charge was not properly presented to the judge. Neider, supra, 60 N.J. at 234. It does not go to the jurisdic tion of the trial court and does not concern a matter of great public interest. Ibid. Although we could properly decline to consider this issue, it nonetheless lacks merit.

Defendant is correct that we have instructed "that in a criminal, quasi-criminal, or juvenile bench trial, a judge should not only make specific findings of fact regarding ele ments of the offense, but should also state whether he [or she] considered lesser-included offenses, specifically identifying those he [or she] considered." State in re L.W., 333 N.J. Super. 492, 498 (App. Div. 2000) (observing that "[o]nly if that is done, can there be effective appellate review"). In L.W., we remanded for additional findings of fact respecting an adjudica tion of delinquency for robbery because the judge did not find that the juvenile committed, or attempted to commit, a theft, a lesser-included offense that must be proven to sustain the rob bery charge based on the assault that occurred after another juvenile asked the victim for a dollar. Id. at 497-98. We do not view L.W. as requiring a remand for further fact findings in this case because harassment is not a necessary element of ter roristic threats. Compare N.J.S.A. 2C:33-4(a) with N.J.S.A. 2C:12-3(a). Finally, it is clear that the judge considered the harassment charge in the sense that the prosecutor reminded her of it, she questioned counsel about it, and both counsel agreed, erroneously or not, that it was a lesser-included offense that should be dismissed.

With respect to the juvenile's motion for acquittal at the close of the State's case, the judge was required to view "the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," determine whether the fact finder can "find guilt of the charge beyond a reason able doubt." Reyes, supra, 50 N.J. at 458-59. We apply the same standard that binds the trial court, see State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006), and conduct a plenary review of the record as the issue presents a question of law. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) ("Whether the facts . . . are sufficient to satisfy the applicable legal stan dard is a question of law subject to plenary review on appeal.") (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)), certif. denied, 192 N.J. 148 (2004). Because the charge of harassment was dismissed, we need not consider the sufficiency of the evidence to sustain that charge.

N.J.S.A. 2C:12-3, which governs terroristic threats, provides:

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless dis regard of the risk of causing such terror . . . .

 
b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in immi nent fear of death under circumstances rea sonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

The juvenile's threat to bomb the school falls within the cate gory of a threat to kill another under subsection (b), but it was properly prosecuted under subsection (a).

We are mindful that "penal statutes are to be strictly con strued in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature." State in re M.T.S., 129 N.J. 442, 431 (1992) (citing State v. Des Marets, 92 N.J. 62, 68-70 (1983); State v. Brown, 22 N.J. 405 (1956)). Where the perpetrator is physically remote from the victim when a threat to kill is made, "yet the threat nonetheless was for the purpose of terrorizing the victim," the perpetrator may be prosecuted under subsection (a) of the statute. State v. Conklin, 394 N.J. Super. 408, 412 (App. Div. 2007).

Furthermore, permitting prosecution under subsection (a) does not render subsec tion (b) superfluous because the actor's purposes under the two subsections are dif ferent. Subsection (a) requires proof of a purpose to terrorize another; subsection (b) requires proof of a purpose to put the other in imminent fear of death. If the Legisla ture intended to limit prosecution of threats to kill to subsection (b), it would have carved out such threats from subsection (a) rather than providing that a threat to commit any crime could be prosecuted under subsection (a).

[Id. at 412-13 (citations omitted).]

One element of a terroristic threat under subsection (a) "is a threat to 'commit any crime of violence.'" State v. MacIlwraith, 344 N.J. Super. 544, 547 (App. Div. 2001) (quoting N.J.S.A. 2C:12-3(a)). "The personal reaction of the alleged victim . . . is not the measure of proof of a terroristic threat." State v. Dispoto, 189 N.J. 108, 123 (2007) (citing Cesare v. Cesare, 154 N.J. 394, 403 (1998)). Rather, in review ing the sufficiency of the evidence on a motion for acquittal at the close of the State's case, we must determine whether a rea sonable person would have believed the threat. Id. at 121-22 (quoting Cesare, supra, 154 N.J. at 402). "Although we agree that, under an objective standard, courts should not consider the victim's actual fear, courts must still consider a plain tiff's individual circumstances and background in determining whether a reasonable person in that situation would have believed the defendant's threat." Cesare, supra, 154 N.J. at 403 (citing State v. Milano, 167 N.J. Super. 318, 323 (Law Div. 1979), aff'd, 172 N.J. Super. 361 (App. Div.), certif. denied, 84 N.J. 421 (1980)).

The other element of a terroristic threat addresses the per petrator's intent, requiring the State to prove beyond a rea sonable doubt that the perpetrator either acted with "the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror." N.J.S.A. 2C:12-3(a). In this respect, the juvenile argues that we should employ the defini tions of "terror" and "terrorize" found in N.J.S.A. 2C:38-2(d) governing the crime of terrorism to evaluate his intent. There, "terror" means "the menace or fear of death or serious bodily injury" and "terrorize" means "to convey the menace or fear of death or serious bodily injury by words or actions." Ibid. Importing such definitions into N.J.S.A. 2C:12-3 is simply inconsistent with the element of subsection (a) requiring proof of "a threat to 'commit any crime of violence,'" MacIlwraith, supra, 344 N.J. Super. at 547, which is a more inclusive category than threats of death or serious bodily injury. In addition such threats, crimes of violence may also include, for example, simple assault, N.J.S.A. 2C:12-1(a); kidnapping, N.J.S.A. 2C:13-1, sex ual assaults, N.J.S.A. 2C:14-2; robbery, N.J.S.A. 2C:15-1; carjacking, N.J.S.A. 2C:15-2; arson and related offenses, including use of incendiary devices, N.J.S.A. 2C:17-1, 2C:39-3; and burglary, N.J.S.A. 2C:18-2. Indeed, this section of the Penal Code was intended to apply to telephone calls threatening a bombing. II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, commentary to 2C:12-3, at 180-81 (1971). As a consequence, we conclude that "terror" and "terrorize" must be given their ordinary meaning.

"Terror" is defined as "[a]larm; fright; dread; the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger." Black's Law Dictionary 1473 (6th ed. 1990). "Terrorize" means "[t]o fill or overwhelm with terror." Webster's II New College Dictionary 1139 (1995). Here, the judge determined that the juvenile acted "in reckless disregard of the risk of causing . . . terror," N.J.S.A. 2C:12-3(a), and, thus, we need not consider purpose.

Our Supreme Court contrasted the proofs required to estab lish recklessness in State v. Williams, 190 N.J. 114, 124 (2007). The Williams Court explained:

The element of criminal recklessness dif fers from knowing culpability, N.J.S.A. 2C:2-2(b)(2), in that the latter requires a greater degree of certainty that a particu lar result will occur. See State v. Simon, 161 N.J. 416, 464 (1999) ("Recklessness can generally be distinguished from purposely and knowingly based on the degree of cer tainty involved. Purposely and knowingly states of mind involve near certainty, while recklessness involves an awareness of a risk that is of a probability rather than cer tainty."); State v. Rose, 112 N.J. 454, 562 (1988) (recognizing same). Neverthe less, even when recklessness is the mens rea element of the crime charged, a defendant's knowledge or awareness is material to the determination of culpability. State v. Sewell, 127 N.J. 133, 148-49 (1992) (noting that "recklessness resembles knowledge in that both involve a state of awareness"). As the 1971 Commentary to the Code explains,

[a]s the Code uses the term, reck lessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved but the awareness is of risk that is of probability rather than certainty; the matter is contingent from the actor's point of view. Whether the risk relates to the nature of the actor's conduct or to the existence of the requisite atten dant circumstances or to the result that may ensue is immate rial; the concept is the same.
 
[II The New Jersey Penal Code[, supra,] commentary to 2C:2-2, at 41-42[].]

Accordingly, when the State alleges criminal recklessness, it must demonstrate through legally competent proofs that defendant had knowledge or awareness of, and then con sciously disregarded, "a substantial and unjustifiable risk." N.J.S.A. 2C:2-2(b)(3).

[Id. at 123-24.]

We thus consider whether the judge correctly denied the motion for an acquittal because the evidence was sufficient to find beyond a reasonable doubt that the juvenile knew or was aware of the probability that his threat to bomb the middle school would induce alarm in a reasonable person in M.M.'s situation. Although bomb threats in middle schools and high schools have been with us since at least 1960, they can no longer be considered an amusement or an annoyance, if indeed they ever were. The tragedy at Columbine High School on April 20, 1999, was only one of at least thirty-two other shootings perpetrated by students at ele mentary, middle, and high schools in America and at least five colleges over the last thirteen years alone. See Infoplease.com, A Time Line of Recent World wide School Shootings, http://www.infoplease.com/ipa/A0777958.html (last visited Oct. 30, 2008). Moreover, bomb threats in schools have spiked since Columbine, leading the United States Department of Justice, Office of Community Ori ented Policing Services, to issue a publication addressing this serious problem. See generally Graeme R. Newman, United States Depart ment of Justice, Bomb Threats in Schools (2007), available at http://www.cops.usdoj.gov/files/ric/publications/e07063413.pdf. These fears have only been exacerbated by the terrorist attacks on September 11, 2001.

Here, the juvenile did not just make a casual remark that he felt like bombing the school, serious as that may be. Rather, he specifically said that he "hated everyone" at the school, especially J.F. who was also M.M.'s teacher, and that he "was going to put a bomb in the middle school to destroy it." Thus, he communicated a pre sent intent to commit an act of violence to M.M., a potential victim of the juvenile's plan. Addi tionally, the juvenile was fully aware that he was seriously upsetting M.M., because M.M. was continually screaming into the telephone, telling the juve nile not to call back, not to say that stuff, "you're disgust ing," and that M.M. kept hanging up. Yet the juvenile persisted, calling M.M. repeatedly that evening.

In the situation in which these telephone calls were made, this evidence establishes beyond a reasonable doubt that the juvenile recklessly disregarded the risk that his threat to bomb and destroy the school because he hated everyone would terrorize M.M. by causing him alarm and dread. Any reasonable person in the position of M.M. would be terrorized. We find no error in the denial of the motion for acquittal or in the ultimate con viction, particularly in light of the juvenile's admission that "a threat to blow up the school . . . could make someone afraid."

Affirmed.

The State urges on appeal that the prosecutor who tried the case was in error when she agreed that it was a lesser-included offense, arguing that in this case it was not. We need not resolve this issue because we are satisfied that L.W. does not require a remand on the facts before us.

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A-6515-06T4

RECORD IMPOUNDED

November 10, 2008