Opinion
DOCKET NO. A-1930-11T3
02-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JENNIFER WILKE, Defendant-Appellant.
Robert J. Cascone argued the cause for appellant. Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-094.
Robert J. Cascone argued the cause for appellant.
Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief). PER CURIAM
Defendant Jennifer Wilke was convicted in the Law Division of the disorderly persons offense of hindering apprehension. N.J.S.A. 2C:29-3(a)(7). She appeals, claiming essentially that the State failed to prove each and every element of the offense beyond a reasonable doubt. We agree and thereby reverse.
I.
The genesis of the State's case is found in a municipal complaint that was pending against Michael Tirado in the Wanaque municipal court. Although the parties agree that Tirado was charged "for a violation of an ordinance," we can neither precisely identify the ordinance's provisions from the record nor know the details of Wanaque's claims because the parties never provided us with a copy of the underlying charge. The most that can be discerned is the following reference contained in the Wanaque warrant: "Offense: BO88-13I."
Wilke's brief asserts that Tirado was subject to charges "for an ordinance violation for him not mowing his lawn." The State does not dispute this characterization.
If this reference relates to Borough of Wanaque Code § 88-13(I), then Tirado was likely charged with a violation of the following provision of Wanaque's property maintenance ordinance:
I. Weeds. All premises and exterior property shall be maintained free from weeds or plant growth in excess of 10 inches (254 mm). All noxious weeds shall be prohibited. Weeds shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs; provided, however, this term shall not include cultivated flowers and gardens.
[Code of the Borough of Wanaque, County of Passaic, New Jersey, http://ecode360.com/ 11786313 (last visited on February 13, 2013).]
On October 3, 2008, a bench warrant was issued by the Wanaque municipal court ordering the arrest of Tirado, presumably due to his failure to appear for a municipal court event. The warrant listed a Wanaque address for Tirado, and noted that bail was set at $500.
Almost a year and a half later, on April 19, 2010, Sergeant Scott Ricker of the Butler police department received information that Tirado could be found at a location in Butler.Acting under the authority of the Wanaque warrant, Ricker and two other police officers went to the townhouse address where they believed they might find Tirado. They were not disappointed.
The distance between Wanaque — located in Passaic County — and Butler — located in Morris County — is less than five miles.
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While the officers were knocking on the front door, they observed the garage door of the townhouse open and a car emerged. The driver was Wilke. The police officers approached the vehicle, and Ricker engaged Wilke in a brief conversation. He asked Wilke if Tirado resided at the townhouse, and she said yes. He then asked if Tirado was then at the residence, to which Wilke replied, "no, [] he . . . already left for work." When asked if Wilke knew where Tirado worked, she answered that she did not know. Wilke also stated that she did not know how Tirado traveled to work.
As the police officers were leaving, Wilke drove her car back inside the garage. Police officer Michael Zena testified what happened next: "As we were walking away, I looked back and saw a gentleman kind of leaning where the doorway is, into the car, handing Miss Wilke something, I'm not sure what it was. It looked like a cell phone, at the time I'm not sure exactly what it was." A few seconds later, Wilke backed her car out of the garage again, prompting the police officers to ask her if the individual in the garage was Tirado. Her reaction, as testified to by police officer Jared Schmiedhauser was, "she looked at us and said, gave like a face like yeah, that's him and, you know, said yeah, that's him."
The three police officers immediately entered the garage. They then walked through the unlocked door to the interior of the townhouse, and two officers ascended the stairs to the living space. After a brief search, Tirado was found locked inside a bathroom. He was served with the Wanaque warrant and arrested.
By the time the police officers brought Tirado outside, Wilke had driven away. After processing Tirado at the Butler police station, Schmiedhauser prepared a disorderly persons complaint charging Wilke with hindering the apprehension of Tirado pursuant to N.J.S.A. 2C:29-3(a)(7).
The matter was initially tried in the Butler municipal court. The municipal judge found the State's three witnesses "consistent in their testimony." Further, "they were almost on point as to what they observed," and "their testimony . . . was credible and reliable."
The judge concluded that "the key of this case" was the fact that Wilke, after speaking with the police and telling them that Tirado was not at the residence, drove back into the garage. The judge stated, "I find that she clearly knew he was there, she pulled out and then pulled back in. . . . [S]he pulled back in because she knew he was there." Consequently, the judge found Wilke guilty as charged because she "gave false information to the police officers for the purpose of preventing his apprehension." The judge imposed a sentence of a $250 fine, plus appropriate costs and penalties.
Wilke filed an appeal in the Law Division. The Law Division judge conducted a de novo review of the record, concluding anew that the State had satisfied its burden of proof beyond a reasonable doubt. The judge noted that not all of the elements of the offense were demonstrated through direct evidence, but that the circumstantial evidence in the record was satisfactory. Specifically, the judge held that Wilke
knew that Mr. Tirado had been or was likely to be charged with an offense. While there has been no direct proof offered to show the defendant had actual knowledge of the arrest [warrant], there was no testimony to this effect, certainly it can be inferred that the defendant was aware that Mr. Tirado had been charged with an offense or that he would be likely charged with an offense based on conduct, words and acts.
The facts reveal that three police officers arrived at the defendant's home between 8:00 and 9:00, and they announced that they were looking for Mr. Tirado. The defendant certainly must have realized that there was some reason why officers would be searching for Mr. Tirado, as police officers generally don't go to someone's house between 8:00 and 9:00 in the morning in order to search for somebody without a reason.
The judge also found "the defendant's act of going back into the garage to retrieve something from Mr. Tirado [was] a clear indication that the defendant was aware of Mr. Tirado's presence within the home. The defendant's false response to police inquiries, therefore, clearly falls within the purview of the [s]tatute." Accordingly, Wilke was again found guilty of hindering the apprehension of Tirado. The same sentence as that imposed by the municipal judge was imposed by the Law Division. This appeal followed.
II.
On appeal, Wilke raises the following arguments for our consideration:
POINT I: THE STATUTE WHICH APPELLANT WAS CHARGED WITH VIOLATING IS INAPPLICABLE IN THE PRESENT CASE.Because the State's proof failed to demonstrate that Wilke acted with knowledge of the nature of the police officers' interest in Tirado, we reverse and vacate the judgment of conviction.
POINT II: THE CASE LAW WHICH CONTROLS THE UNDERLYING STATUTE WAS INCORRECTLY NOT FOLLOWED.
POINT III: THE SUPERIOR COURT IGNORED CASE LAW THAT PROVED THE CONFIRMATION OF ANY HINDERING OF APPREHENSION WAS THE FRUIT OF AN ILLEGAL AND UNCONSTITUTIONAL SEARCH OF APPELLANT'S HOME.
Our standard of review in this appeal requires us to assess whether there was "sufficient credible evidence" in the record to uphold the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 (1964). "[I]t [is] improper for [us] to engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Essentially, this court is governed by the substantial evidence rule while a de novo review contemplates an independent fact-finding function in respect of Wilke's guilt or innocence. Notwithstanding the foregoing, our review of the legal conclusions that flow from established facts is plenary. See State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The Law Division judge reviewed the municipal court trial record, deferred to the credibility findings of the municipal judge, see Locurto, supra, 157 N.J. at 472-74, and reached an independent conclusion. After our review of the record, the municipal judge's determinations, and the Law Division judge's factual findings, we conclude that there was insufficient credible evidence to find Wilke guilty of N.J.S.A. 2C:29-3(a)(7) mainly due to the complete absence of evidence — direct or circumstantial — that Wilke had knowledge that the police wanted to apprehend Tirado for an offense.
Wilke was charged with violating the following:
a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the Revised Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
. . . .
(7) Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of
the Insurance Fraud Prosecutor established by section 32 of P.L. 1998, c. 21 (C. 17:33A-16).[N.J.S.A. 2C:29-3(a)(7).]
In order to secure a conviction pursuant to this statute, the State must prove the following three elements beyond a reasonable doubt:
(1) that Wilke knew that Tirado had been or was likely to be charged with an offense;Here, the first element was not satisfied.
(2) that Wilke gave false information to a law enforcement officer; and
(3) that Wilke acted with purpose to hinder the detention, apprehension, investigation, prosecution, or conviction of Tirado.
The Law Division judge concluded that the circumstantial evidence of the police arriving at Wilke's home between 8:00 a.m. and 9:00 a.m. and asking for Tirado was sufficient to impart knowledge of Tirado's wanted status. It is illogical to infer that Wilke had knowledge of Tirado's offense simply because she "certainly must have realized that there was some reason why officers would be searching for Mr. Tirado."
The only testimony that touched on Wilke's supposed knowledge was Ricker's statement to Wilke "that we were looking for Mr. Tirado" and his question, "was [Tirado] at the residence"? Additionally, Zena noted, "I believe [] Ricker walked up to the vehicle, asked if she knew this gentleman. She said yes[,] and is he home[?] She said no." Finally, Schmiedhauser testified, "I believe that [] Ricker said[,] does Michael Tirado live here? She said yes. He said is he here? . . . [S]he said no he's not."
Clearly, Wilke was never told by the police officers why they were seeking Tirado. There was nothing about the timing of the encounter — at the beginning of a workday — that suggested the police were acting pursuant to an arrest warrant or that Tirado had even been accused of an offense, much less an ordinance violation from a nearby municipality. The citizen/police interchange in this case was wholly incapable of supporting the Law Division's erroneous conclusion that Wilke knew or should have known that Tirado had been or was likely to be charged with an offense.
Circumstantial evidence requires the application of logical inferences to the evidence presented. See State v. Cagno, 211 N.J. 488, 512 (2012), cert. denied, ___ U.S. ___, ___ S. Ct. ___, 184 L. Ed. 2d 687 (2013). Such inferences are tested "by the rules of ordinary reasoning such as govern mankind in the ordinary affairs of life." State v. Samuels, 189 N.J. 236, 246 (2007) (quoting State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div. 1959). It was both unreasonable and beyond the logical limits of the evidence to infer that Wilke knew, from the momentary conversation with Ricker, that the police were pursuing Tirado within the meaning of N.J.S.A. 2C:29-3(a)(7). Accordingly, the State failed to prove all of the elements of the offense beyond a reasonable doubt.
Reversed and remanded for the entry of a judgment of acquittal.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION