Opinion
DOCKET NO. A-5543-12T1
07-09-2014
STATE IN THE INTEREST OF J.F.
Barry J. Serebnick argued the cause for appellant J.F. (Shamy, Shipers & Lonski, P.C., attorneys; Mr. Serebnick, on the brief). William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Meighan, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FJ-15-0867-13 and FJ-15-1087-13.
Barry J. Serebnick argued the cause for appellant J.F. (Shamy, Shipers & Lonski, P.C., attorneys; Mr. Serebnick, on the brief).
William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Meighan, of counsel and on the brief). PER CURIAM
J.F. (Jeff), a minor, appeals the Family Part's June 12, 2013 order adjudicating him delinquent based on five counts arising out of conduct that would constitute the third-degree crime of making terroristic threats, N.J.S.A. 2C:12-3(a), if committed by an adult, as well as one count arising out of conduct that would constitute a petty disorderly persons offense under N.J.S.A. 2C:33-2(a), if committed by an adult. We affirm.
We use fictitious names throughout this opinion for persons who were juveniles at the time of the underlying events.
I.
We discern the following facts and procedural history from the record on appeal.
The events on which the charges against Jeff are based took place between December 2, 2012, when Jeff was released from a juvenile detention facility, through December 13, when the police began their investigation. The witnesses were not sure of the exact dates on which certain events took place.
On December 17, 2012, Jeff was charged, under docket number FJ-15-796-13N, with one count of terroristic threats for making generalized threats against faculty, staff, and students at Point Pleasant High School. Additional charges were added as a result of further investigation. On January 14, 2013, Jeff was charged, under docket number FJ-15-867-13N, with five counts of terroristic threats against five specific students. On March 6, Jeff was charged, under docket number FJ-15-1087-13N, with one count of conduct that, if committed by an adult, would constitute the third-degree crime of making a false public alarm, N.J.S.A. 2C:33-3(a), and one count of petty disorderly conduct by making threats. Jeff was tried over three consecutive days in April 2013.
S.S. (Sam) testified that, in early December 2012, Jeff, C.C. (Carla), and he were talking together at the Point Pleasant recreation center. According to Sam, he and Jeff, who had dated his sister, were friends. Sam testified that Jeff talked about a "hit list that he had," and "that he would want to shoot up the people that are preventing him from returning to school[, after his recent release from juvenile detention,] and that it was students, staff, and basically just the school." According to Sam, on a prior occasion, Jeff had "mentioned that he would be able to obtain a [nine millimeter] gun for fifty bucks" from someone he met in a juvenile rehabilitation facility.
Sam was an adult at the time of trial, but a juvenile at the time of the underlying events.
Sam originally believed Jeff was "spouting off." He testified that Jeff was upset because he had recently broken up with Sam's sister. Sam was not immediately fearful for himself or his family because Jeff "had mentioned that me and the people I love, my family members, were not on the list."
Sam became worried after he heard about the shooting at Sandy Hook Elementary School in Connecticut. Sam stated: "[b]ut as the shooting . . . had occurred, . . . it started to sink more in that maybe he could go through with these things and that he is not all right in the head and he could actually do this." As a result, Sam told his mother about his conversation with Jeff, and then spoke to the police. However, by that time, the police were already investigating threats made by Jeff to others.
The Sandy Hook shooting took place on December 14, 2012.
Carla, age fifteen at the time of trial, described the conversation she had with Jeff and Sam at the recreation center in early December. Jeff was angry because of his recent breakup with Sam's sister M.S. (Macy). According to Carla, Jeff was "angry with the people that [Macy] was like doing stuff with, and he like wanted to get revenge." She clarified that he used the word "payback" rather than revenge.
Carla also testified about seeing Jeff at a park following the conversation at the recreation center. According to Carla, Jeff told her he was on Vicodin at the time. He was still angry about his breakup with Macy. Carla testified that she believed he was capable of hurting the guys with whom Macy had a relationship.
Carla further testified about a Facebook interchange with Jeff that took place a few days after Jeff left the detention facility on December 3, but before the conversation at the recreation center. According to Carla, Jeff told her on Facebook that "he wanted to kill himself" because his relationship with Macy had ended. She believed that he was serious, but was not sure if he was capable of hurting himself.
T.H. (Travis), who was sixteen at the time of trial, testified concerning a separate conversation he had with Jeff in early December, probably the week of December 10. Travis described his interaction with Jeff as follows:
I was waiting for my mom to come and pick me up outside of school when I saw [Jeff], and I came up to him and I was talking to him about how he's been doing. And he just said he's been in and out of programs and stuff. So I asked . . . him what was going on and he's like, "I have a problem," about if he violates probation, that he goes back to juvie until he's eighteen. And then he said he didn't like that. So he said he was gonna kill himself. So I told him that he doesn't need to do that, there's no reason to do that. And then he said . . . he was gonna go and shoot up the school[,] and he pointed to the school.Travis further testified that he was fearful for his own safety and the safety of others at the time of their conversation.
A.T. (Anne), who was fourteen at the time of trial, testified that she talked with Jeff at some point in December. According to Anne, she, V.H. (Valerie), who was sixteen years old, and Jeff were at her house. By that time, according to Valerie's testimony, there were rumors at the school about Jeff and a hit list, so they asked him about it. Anne testified that "he was talking about how he didn't actually have one written but he has one, and he told us like a few people that were on the list." Anne testified that he mentioned the names of at least four people on the hit list: B.M. (Beth), a second student named C.C. (Cori), V.E. (Vander), and M.M. (Max). Jeff told Anne and Valerie that he chose those people because "they just like did stuff to him, so it was like payback for whatever they did, or he just didn't like them." According to Anne, Jeff told them "[t]hat if he had a gun, he would kill them."
Anne testified that, at the time Jeff told her about the list, she was not afraid for herself or initially for the safety of the people on the hit list. She added that she was worried for the safety of those individuals and "[k]ind of" afraid for her own safety at the time of trial. Anne did not at first believe Jeff was capable of carrying out the threats, but at the time of her testimony she "kind of" believed he was. Anne did not tell anyone about what Jeff told her that day, but subsequently spoke to the police during their investigation.
Valerie testified about the discussion at Anne's house, which she described as follows:
[T]he topic about like shooting people got brought up and . . . we just kept talking about it. And [Jeff] was saying that he could buy a gun from his friend and named like a couple people on this list that he apparently had, and that he was gonna walk into the school, shoot up all those people that were on the list.She specifically recalled Jeff mentioning five people on the hit list: Beth, Max, Cori, Vander, and E.C. (Earl).
Valerie testified that she was not worried for her own safety "because I had like a really good bond with him and I felt safe, but I was worried for like the other people." She added that she did not "really think he would actually like go through with it," but that "part of me did think he could, like it was possible." Valerie did not think to warn people when Jeff made the statements to her "because like I didn't think it was gonna be this serious. I didn't really think it through."
According to Valerie, after hanging out at Anne's house, she and Anne went to Logan's house and told him what Jeff had said about his hit list. Valerie also told two other students about Jeff's comments. She told them: "He's stupid. He's not gonna do it."
This individual was not identified by last name at trial.
Those students were not fully identified at trial and were not among those mentioned by Jeff.
Macy, who was fourteen at the time of trial, testified that she dated Jeff for approximately one-and-one-half years. She ended the relationship in early December. Macy testified that, prior to their breakup, Jeff had made threats such as "[i]f anyone like came near me, he said that he would stab them." She also testified that Jeff told her "he wanted to like hurt his parents" and that he "wanted to . . . put a pillow over their faces" while they were asleep. Macy did not believe Jeff would actually hurt his parents, because he "makes threats a lot." Macy was not fearful for herself, but she felt that Jeff might be capable of physically hurting someone at the time of their breakup.
Cori, who was fifteen at the time of trial, testified that she learned from her mother, during the first week of January 2013, that "there was a hit out on me." She was afraid to go to school at that time and was still afraid at the time of trial. Cori testified she knew Jeff, but was not friends with him. She thought she was on Jeff's hit list because she is friends with Macy and had told Macy that she should not date Jeff.
Beth, age fifteen at the time of trial, testified that she learned from her father in late December or early January that she was included on a hit list, which made her "very scared." She testified that she knew Jeff, but did not have any reason to know why she would be included on his hit list.
M.D. (Mabel), who was sixteen at the time of trial, testified that she saw Jeff at the juvenile detention center on March 13, 2013. He asked her "to find out who snitched on him and to look at his police report" because "he was going to beat the shit out of whoever snitched on him if he got out." According to Mabel, Jeff told her "he was going to beat the shit out of him," referring to Travis. Mabel testified that Jeff was not joking, that she was worried for Travis, and that at the time of trial she was worried for herself.
Jacquelyne Moore, a vice principal at the high school, testified that, on December 13, the school received an email from a parent regarding "a student with an apparent hit list." She told Edward Kenney, another vice principal, about the email and the "need to find out who that is and move forward from there." She and Kenney identified Travis as a student who might have more information about the hit list. They also identified Jeff as the individual who may have created the hit list.
Kenney testified that, after Moore told him about the email, he spoke with Travis and another student and "realized that I had a potentially serious problem or issue." He immediately notified the high school principal, "Central Office," and the police. He testified that he "was concerned about the safety and the security of all of our students."
Vincent Smith, the superintendent of schools, testified that, in response to the information concerning a student threatening to shoot up the school, all but two entry points at the school were closed. Before the police arrived, they searched the school to determine whether Jeff was present. The police arrived and posted officers at the high school and the other schools in the district.
One of the police officers involved in the investigation testified that the police were contacted by the school on December 13. He also testified that he notified all five victims about Jeff's threats. On cross-examination, he stated that he had brought Jeff into the police station a few days after his release, probably December 5, to ask him about reports that he wanted to hurt himself. Jeff denied that he had any such intention. The police officer testified that he did not question Jeff about hurting others at that time.
After the State rested, Jeff moved for a judgment of acquittal on all charges. The trial judge ruled that, "giving the State the benefit of all the reasonable inferences, a reasonable jury could not find beyond a reasonable doubt a false public alarm under the circumstances of this case." Consequently, he granted Jeff's motion to dismiss that charge. He denied the motion as to the remaining charges.
Jeff presented testimony from his substance abuse counselor. The counselor described the outpatient program attended by Jeff for four days during the week of December 10, following one day of intake the week before. Jeff was taken in for questioning by the police while at the program on December 13. The witness testified that there was nothing about Jeff's conduct while at the program to indicate suicidal or homicidal ideations.
On April 12, after hearing closing arguments, the trial judge delivered an oral decision. He outlined the principles of law that guide judicial decision making in terms similar to those applicable to a jury. He then made findings of fact and outlined the legal principles applicable to the offenses charged.
The trial judge adjudicated Jeff delinquent on five counts of conduct amounting to terroristic threats and one count of conduct amounting to disorderly conduct. He "essentially mold[ed] the verdict" regarding the general count of terroristic threats because it "[arose] out of the same circumstances" as the five specific counts. For that reason, the judge dismissed the general count. He then merged the disorderly persons offense into the terroristic threats offenses.
On June 12, the judge committed Jeff to the custody of the Juvenile Justice Commission for two years, with eight months of aftercare. He gave Jeff 177 days of credit for time served. This appeal followed.
II.
Jeff raises the following points on appeal:
POINT I: THE STATE FAILED TO ESTABLISH THE JUVENILE'S GUILT OF THE TERRORISTIC THREATS BEYOND A REASONABLE DOUBT.We address each of Jeff's arguments in order.
POINT II: THE COURT ABUSED ITS DISCRETION BY ADMITTING INTO EVIDENCE, OTHER CRIMES AND OTHER ACTS EVIDENCE, CONTRARY TO N.J.R.E. 404(B).
POINT III: THE STATE FAILED TO ESTABLISH ALL OF THE ELEMENTS OF DISORDERLY CONDUCT BEYOND A REASONABLE DOUBT.
A.
Our review of a judge's verdict in a non-jury case is limited. The standard is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." In re R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). Our task is to "'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" In re B.C.L., 82 N.J. 362, 379 (1980) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). A reviewing court should not independently assess the facts, State v. Locurto, 157 N.J. 463, 471 (1999), but instead assess whether the findings of fact by the trial judge "'are so wholly insupportable as to result in a denial of justice,'" B.C.L., supra, 82 N.J. at 380 (quoting Rova Farms Resort, Inc. v. Investor Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
Moreover, we are obliged to "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 161). "[T]he factual findings of the trial court are binding on appeal when supported by adequate, substantial, credible evidence." In re W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
N.J.S.A. 2C:12-3(a) provides as follows:
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 to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.The statute requires proof of two elements beyond a reasonable doubt: "(1) [that defendant] threatened to commit a crime of violence; and (2) [that] he intended to terrorize the victim, or acted in reckless disregard of the risk of doing so." State v. Tindell, 417 N.J. Super. 530, 553 (App. Div. 2011) (citing State v. Conklin, 394 N.J. Super. 408, 410-11 (App. Div. 2007)).
The threat need not actually be "communicated directly to the victim to be actionable." Cesare v. Cesare, 154 N.J. 394, 403 (1998). And, "[t]he 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, supra, 154 N.J. at 403). Instead, "[t]he communication must be of such a character that a reasonable person would have believed the threat." Tindell, supra, 417 N.J. Super. at 553 (citing Dispoto, supra, 189 N.J. at 121). Nevertheless, "[a]lthough we agree that, under an objective standard, courts should not consider the victim's actual fear, courts must still consider a [victim]'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 (emphasis added) (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 first element requires a showing that Jeff threatened to commit a crime of violence. N.J.S.A. 2C:12-3(a). Sam testified that Jeff told him about a hit list and that he wanted to "shoot up the people that are preventing him from returning to school." Travis testified that Jeff told him that he was going to "shoot up the school" and pointed at their school while making the statement. According to Anne, she asked Jeff about the hit list and he listed four names on the list: Beth, Cori, Vander, and Max. He told her that "if he had a gun, he would kill them." Valerie testified that she was present for the same conversation as Anne and that Jeff mentioned the hit list and that five people were on it: Beth, Max, Cori, Vander, and Earl. Valerie recounted that Jeff stated "he was gonna [sic] walk into the school, [and] shoot up all those people that were on the list."
The trial judge found the first element satisfied:
The Court is satisfied that the testimony of these witnesses satisfied that the State has proven beyond a reasonable doubt that the defendant threatened to commit a crime of violence, specifically violence by way of shooting or killing and reference to a hit list. And, therefore, the first element of the terroristic threat has been established to this Court's satisfaction beyond a reasonable doubt.
The judge found each of the testifying witnesses to be credible. Their testimony supported a finding that Jeff threatened to shoot people at the school in general, including the named individuals. That would have been either a form of criminal homicide, N.J.S.A. 2C:11-2, or a form of assault, N.J.S.A. 2C:12-1, depending on whether the shots were fatal. Because there was a sufficient factual basis for the judge's finding that Jeff threatened to commit a crime of violence, the first element of the offense was established. B.C.L., supra, 82 N.J. at 379.
The second element requires a showing that the threat was intended either to "terrorize the victim, or [the defendant] acted in reckless disregard of the risk of doing so." Tindell, supra, 417 N.J. Super. at 553 (citing Conklin, supra, 394 N.J. Super. at 410-11). The trial judge made alternative findings beyond a reasonable doubt. He first found "beyond a reasonable doubt that [Jeff] made those statements purposely to terrorize." He then found, also beyond a reasonable doubt, that Jeff made them recklessly.
"'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). Purpose may be inferred from the evidence, and "[c]ommon sense and experience may inform that determination." Ibid. (citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978)). The parties did not advocate for a specific meaning of the term "terror." If given its ordinary meaning, the term is defined as an "[i]ntense, overwhelming fear." Webster's II New College Dictionary 1167 (3d ed. 2005). To "terrorize" means to "fill or overwhelm with terror." Ibid.
We question whether there was substantial credible evidence in the record to support the trial judge's finding that Jeff acted with a purposeful intent to terrorize another. B.C.L., supra, 82 N.J. at 379. There was no testimony that he threatened to harm anyone to whom he spoke or that he asked them to tell others, including the five students on his list, about the threats. For that reason, we have chosen to confine our analysis to the judge's alternate finding that Jeff acted "in reckless disregard of the risk of causing such terror or inconvenience." N.J.S.A. 2C:12-3(a).
In State v. Williams, 190 N.J. 114, 123-24 (2007), the Supreme Court explored the nature of criminal recklessness:
The element of criminal recklessness differs from knowing culpability, N.J.S.A. 2C:2-2(b)(2), in that the latter requires a greater degree of certainty that a particular result will occur. See State v. Simon, 161 N.J. 416, 464 (1999) ("Recklessness can generally be distinguished from purposely and knowinglyRecklessness is specifically defined by the criminal code:
based on the degree of certainty 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 certainty."); State v. Rose, 112 N.J. 454, 562 (1988) (recognizing same). Nevertheless, 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, recklessness 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 attendant circumstances or to the result that may ensue is immaterial; the concept is the same.Accordingly, when the State alleges criminal recklessness, it must demonstrate through legally competent proofs that defendant had knowledge or awareness of, and then consciously disregarded, "a substantial and unjustifiable risk." N.J.S.A. 2C:2-2(b)(3).
[II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:2-2, at 41-42 (1971).]
[(Alteration in original).]
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
[N.J.S.A. 2C:2-2(b)(3).]
In making his alternate ruling, the trial judge found that
in his heat of anger and upset[, Jeff] acted recklessly and consciously [dis]regarded a substantial and [un]justifiable risk that the result would occur from the conduct. Words are powerful weapons, and mindful that we're dealing with young people today, given the circumstances and events of the world around them, it certainly is reckless to refer to going into a school, a hit list, and killing people. And I do find that those statements were made and they were made . . . beyond a reasonable doubt recklessly and it reached the point where there would be specific individuals named on the hit list.
We have edited the language in the transcript to reflect what we have concluded, from the context, were the words actually intended by the judge.
Based upon our review of the record and giving the required deference to the trial judge's factual findings, we conclude that there was sufficient credible evidence in the record to support a finding of guilt on the basis of criminally reckless conduct. B.C.L., supra, 82 N.J. at 379. Jeff discussed his hit list or talked about shooting students and others at the school with five people during at least three separate conversations. He asserted his ability to obtain a gun and named five people on the list. There was no evidence that Jeff told any of them not to communicate his threats further.
In fact, at the time Anne and Valerie asked about the list, Jeff was aware that rumors about the threats were circulating among the students. He repeated the threats rather than disavowing them or asserting that they were not serious. By making the threats to so many people, and by continuing to make the threats once he knew that word of them had spread at school, Jeff exhibited a conscious disregard for the "substantial and unjustifiable risk" that the victims would learn about the threats and be in fear from them. N.J.S.A. 2C:2-2(b)(3).
There was also sufficient credible evidence in the record to support the finding that the threats were credible from an objective point of view, including that of a high school student. Travis testified that he was fearful for his own safety and that of others at the time Jeff told him he was going to "shoot up the school." Valerie testified that she was not fearful for herself because of her strong relationship with Jeff, but she was "worried for [] the other people" and for the kids on the list because "some of them are close friends." Cori and Beth, two of the victims, testified that they were each worried as to their safety when they learned they were included on the hit list.
Jeff argues that he could not have acted recklessly because the discussions with his friends occurred just before the Sandy Hook shooting, an event that he argues then shifted the opinions of some witnesses from a point where they believed he was blowing off steam to a point where they were more concerned about his statements.
Jeff's argument ignores the fact that the Sandy Hook shooting took place on December 14, which was one day after the concerned parent had notified the school of the threats. That notification caused the school to inform the police and also to take steps to secure the school building. The school and police were already investigating the threats when the Sandy Hook shooting occurred. In fact, Jeff was taken in for questioning on December 13, and was undergoing a psychological evaluation on the day the Sandy Hook shooting occurred. The argument also ignores the fact that (1) Travis and Valerie were concerned about the threats when Jeff made them and (2) that the school was sufficiently concerned to take security precautions, all prior to the Sandy Hook shooting.
Although there was evidence from which the judge might have found that Jeff was merely letting off steam, as Jeff now argues, there was significant evidence from which the judge could and did find otherwise. The judge heard and saw the witnesses testify and "had the feel of the case" from doing so. We defer to his findings as to credibility and the weight of the evidence. As a result, we are satisfied that the judge's finding of guilt beyond a reasonable doubt based on conduct "in reckless disregard of the risk of causing such terror or inconvenience" finds sufficient support in the record to warrant affirmance.
B.
Jeff argues that the trial judge erred in admitting four pieces of testimony concerning other crimes or wrongs that should have been excluded pursuant to N.J.R.E. 404(b). The testimony at issue is (1) Macy's testimony that Jeff told her he wanted to harm or kill his parents, (2) Macy's testimony that Jeff hit a brick wall at the time of their breakup, (3) Carla's testimony that Jeff told her he was "on Vicodin," and (4) Mabel's testimony about Jeff's threat to beat up anyone who reported him to the police, which Jeff apparently believed included Travis.
"Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citation and internal quotation marks omitted).
N.J.R.E. 404(b) generally precludes the admission of evidence pertaining to other crimes or wrongs, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue of dispute." In State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court articulated a four-factor test to govern the admissibility of such evidence for those permitted purposes. The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;In Williams, however, the Court observed that the second Cofield factor "is not one that can be found in the language of Evidence Rule 404(b). Cofield's second prong, therefore, need not receive universal application in Rule 404(b) disputes." Id. at 131.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Williams, supra, 190 N.J. at 122 (citing Cofield, supra, 127 N.J. at 338).]
We find no error with respect to Mabel's testimony. Our courts have repeatedly held that threats against a potential prosecution witness can be admitted into evidence under N.J.R.E. 404(b), or its predecessor, because they manifest consciousness of guilt. See, e.g., State v. Yough, 208 N.J. 385, 402 n.9 (2011); State v. Hill, 47 N.J. 490, 500-01 (1966); State v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994); State v. Pierro, 253 N.J. Super. 280, 285-87 (App. Div.), certif. denied, 127 N.J. 564 (1992).
With respect to the testimony concerning (1) Jeff's statements to Macy that he wanted to harm his parents, (2) Jeff's having hit the brick wall when he broke up with Macy, and (3) his statement to Carla that he was "on Vicodin," even if there was error, we see no basis to conclude, taking them singly or together, that they raise "a reasonable doubt as to whether the error led [the judge] to a result [he] otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Although the judge mentioned Jeff's desire to harm his parents in passing during his oral decision, we conclude that it was in no way central to his decision. Consequently, none of the potential trial errors warrant reversal of the judge's adjudication of delinquency.
C.
Finally, we turn briefly to Jeff's contention that the State failed to prove its case with respect to the petty disorderly conduct offense.
Jeff was charged with conduct that, if committed by an adult, would violate N.J.S.A. 2C:33-2(a), which provides:
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof heThe statute defines "public" as "affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are . . . schools." N.J.S.A. 2C:33-2(b).
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
Although we agree that it would have been helpful had the judge made specific findings of fact with respect to the language of that statute, it is clear that the conduct found by the judge constituted conduct prohibited by N.J.S.A. 2C:33-2(a)(1). By engaging in the threatening behavior found by the trial judge, Jeff recklessly created a risk of public inconvenience, annoyance, or alarm. We have upheld the judge's finding that Jeff's conduct satisfied the similar recklessness standard of N.J.S.A. 2C:12-3(a), and the testimony of the police officer and school officials, as well as the students, more than supported the element of public inconvenience, annoyance, or alarm.
There was no factual basis for an adjudication under N.J.S.A. 2C:33-2(a)(2).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION