NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5103-13T3 STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, March 18, 2016 v. APPELLATE DIVISION WILLIAM BURKERT,

Defendant-Appellant. _______________________________

Submitted January 11, 2016 - Decided March 18, 2016

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6070.

Caruso Smith Picini, P.C., attorneys for appellant (Timothy R. Smith, of counsel; Steven J. Kaflowitz, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

J. Gregory Crane and Eugene Volokh (Scott & Cyan Banister First Amendment Clinic, UCLA School of Law) of the California bar, admitted pro hac vice, attorneys for amicus curiae Pennsylvania Center for the First Amendment (Mr. Crane and Mr. Volokh, on the brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D. Following a trial de novo before the Law Division,

defendant William Burkert, a former Union County corrections

officer, appeals from a judgment of conviction on two counts of

harassment, a petty disorderly offense, N.J.S.A. 2C:33-4(c).

Defendant's conviction was based upon his creation of two

"flyers" that contained the wedding photo of a fellow Union

County corrections officer (the Sergeant), which was altered to

include vulgar handwritten comments in speech bubbles. On

appeal, defendant argues his conviction cannot stand. He

asserts his statements during the internal affairs investigation

were inadmissible because they were coerced and the flyers

represented speech protected by the First Amendment, precluding

criminal prosecution.

Defendant's First Amendment argument is supported by amicus

Professor Eugene Volokh, on behalf of the UCLA School of Law

Scott & Cyan Banister First Amendment Clinic. Prosecution of

the harassment complaints was undertaken by the Sergeant's

private counsel, not the municipal prosecutor. See R. 7:8-7(b).

For ease in presentation, we refer to the prosecuting party as

the State, which urges the evidence was sufficient to uphold

defendant's conviction beyond a reasonable doubt.

We have reviewed the arguments of the parties, in light of

the record and applicable law. We reverse defendant's

2 A-5103-13T3 conviction because the evidence failed to prove he engaged in

harassing conduct directed to the Sergeant as required by

N.J.S.A. 2C:33-4(c). Rather, the commentary defendant added to

the Sergeant's wedding photograph was constitutionally protected

speech.

These facts were relied upon by the Law Division, taken

from the three-day Elizabeth Municipal Court trial regarding

three harassment complaints filed by the Sergeant. In addition

to the testimony of the Sergeant, the State's witnesses included

the internal affairs officer and another corrections officer who

found flyers. The State also submitted various documentary

evidence. Defendant testified on his own behalf.

The Sergeant and defendant had been co-workers for twenty

years. Throughout that time, "tension" and "animosity" developed

between the two, in part because each was a member of a

different union that represented corrections officers.

On January 8, 2011, when he arrived at work, the Sergeant

found a flyer in the parking garage containing his wedding photo

on which "pornographic things" were written. The Sergeant

testified he was "upset, angry" and "very offended and

humiliated." He recognized the handwriting on the photo as

defendant's. As the Sergeant proceeded to the gun locker, he

saw defendant and defendant's brother, a fellow corrections

3 A-5103-13T3 officer, blocking the doorway. Later during the shift,

defendant called the Sergeant regarding a work related issue and

mentioned the Sergeant's wife had "called defendant fat." When

asked by the Sergeant, defendant denied any knowledge of the

flyer found in the garage.

On January 9, 2011, the Sergeant was given a second flyer

by a co-worker, which was found in the locker room vestibule

area. Although the photograph was identical to the first, the

added message was different, and the Sergeant recognized it too

as being written by defendant.1 On January 11, 2011, Lieutenant

Patricia Mauko found two lockers overturned and the offensive

photos strewn on the floor. The Sergeant was not at work that

day but was involved in union business, during which a superior

officer handed the Sergeant a copy of the second flyer stating,

"this came out the other night." The State did not establish

defendant was working that date.

The Sergeant testified he became distraught, embarrassed,

and feared for his safety because he believed his authority with

inmates was undermined. He left work and never returned. He

filed for worker's compensation, asserting a work-related

1 Testimony from another corrections officer, who found copies of the flyer in the locker room on January 11, 2011, was presented. She stated on the date of that incident, the Sergeant was not working and she could not recall whether defendant was working.

4 A-5103-13T3 psychiatric injury, and thereafter retired. In addition to the

criminal complaints, the Sergeant filed a civil action against

defendant.

Union County was informed of the flyers on January 12,

2011. An internal affairs investigation of the Sergeant's

complaint was conducted by Sergeant Stephen Pilot from the

County Corrections Department. Sergeant Pilot questioned

defendant, explaining "he must give a statement or he would

jeopardize his employment" and be subject to departmental

discipline. In his written statement, defendant admitted to

printing the Sergeant's wedding photograph, which was posted on

NJ.com's Union County forum, and to adding the captions.2

Defendant denied making any other copies, circulating the

flyers, or asking anyone else to do so. Defendant objected to

the admissibility of his written statement given to Sergeant

Pilot. The judge never formally ruled on this objection.

Defendant testified he thought the Sergeant and he were

friends and related past favors he had done for him. He then

explained how over the years he noticed derogatory posts

repeatedly appearing on an NJ.com forum, which increasingly

2 Defendant's statement was introduced as S-3 in evidence during the municipal court trial; however, the document is not in the record on appeal. Further, advisory notices given to defendant prior to Sergeant Pilot's interview, marked as J-4 and J-5 in evidence, are not in the record.

5 A-5103-13T3 became "personal" regarding him, his brothers, and other family

members. Defendant checked the screenname attached to these

posts, and found the Sergeant's wedding picture, which was also

posted on the forum. Defendant became angry, copied the wedding

picture at home, added the captions, and hung them in his office

"in the union house."

When the Sergeant asked him about the flyers on January 8,

2011, defendant said "[n]o, that wasn't me." Examining S-1 in

evidence, defendant agreed he wrote certain derogatory comments

on the picture, but also identified other comments he did not

write, which were apparently added by others. He denied making

copies of the altered photograph or distributing them in the

garage or locker area.

On cross-examination, defendant also denied blocking the

Sergeant's entrance on January 8, and suggested the photographs

may have been removed from his desk; however, he did not know

when or by whom. He also implied the Sergeant could have

distributed the copies as he was the only person alleged to have

seen the flyers in the parking garage.

At the close of evidence, the judge concluded the direct

and circumstantial evidence supported a finding defendant made

copies of the flyers and distributed them in the garage and the

locker room as "payback" for the derogatory internet postings.

6 A-5103-13T3 Defendant was found guilty of harassment based on the incidents

occurring on January 8 and 11.3 Fines and assessments were

imposed.

In the trial de novo before the Law Division, defendant

argued no evidence proved beyond a reasonable doubt defendant

distributed the flyers or intended to harass the Sergeant.

Further, he maintained, as a matter of law, the written comments

he placed on the photograph were protected speech and could not

constitute criminal harassment because they were not

specifically directed to the Sergeant.

The Law Division judge issued a written opinion finding the

evidence sufficiently supported defendant's conviction of

harassment under N.J.S.A. 2C:33-4(c). He imposed the same

fines, costs, and assessments as the municipal court. Defendant

appeals from the June 20, 2014 order finding him guilty.

On appeal, defendant argues:

POINT I

THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE COURT SHOULD HAVE FOUND DEFENDANT NOT GUILTY AT THE END OF THE ENTIRE CASE AS THE STATE FAILED TO PROVE THAT DEFENDANT COMMITTED THE ACTS IN QUESTION WITH AN INTENT TO HARASS.

3 The municipal court disposition sheet recites the complaint regarding the January 9, 2011 incident was "merged to the other complaint."

7 A-5103-13T3 A. Defendant was entitled to a judgment of acquittal at the end of the State's case.

B. The court's Garrity[4] ruling was erroneous for several reasons, including because the court shifted the burden of proof on the admissibility of defendant's statement to defendant.

C. The court's ruling admitting the complainant's testimony that he recognized defendant's handwriting was erroneous.

D. The State did not prove an intent to harass.

POINT II

THE FIRST AMENDMENT PROHIBITS DEFENDANT'S CONVICTION FOR HARASSMENT FOR HIS EXPRESSION OF HIS OPINION OF COMPLAINANT EVEN IF DEFENDANT INTENDED TO HURT COMPLAINANT'S FEELINGS.

In our review, we "consider only the action of the Law

Division and not that of the municipal court." State v.

Oliveri,

(App. Div. 2001) (citing State

v. Joas,

(1961)). "We are limited to

determining whether the Law Division's de novo findings 'could

reasonably have been reached on sufficient credible evidence

present in the record.'" State v. Palma,

(App. Div. 2012) (quoting State v. Johnson,

, 162

4 Garrity v. New Jersey,

,

,

(1967).

8 A-5103-13T3 (1964)), aff'd,

(2014). See also State v. Rivera,

(App. Div. 2010) ("Where a municipal

court judgment has been appealed to Superior Court, we

ordinarily review the Law Division judgment under a sufficiency

of the evidence standard.").

Initially, we find it unnecessary to review defendant's

arguments raised in Point I, which assert statements uttered in

the course of the internal affairs investigation were

inadmissible. In part, our determination results because

defendant's testimony consistently admitted the same facts he

told Sergeant Pilot, thus obviating any dispute.5

We also see no reason to untangle the arguments advanced by

defendant and countered by the State in Point II, directed to

5 We take no position on the Law Division judge's reasoning applying the United States Supreme Court's holding in Garrity. The United States Supreme Court held statements made by public employees under the threat of discharge were coerced and, therefore, inadmissible in subsequent criminal proceedings under the Fourteenth and Fifth Amendments. Garrity, supra,

,

,

. ("The option to lose their means of livelihood or to pay the penalty of self- incrimination is the antithesis of free choice to speak out or to remain silent."). Nor do we suggest agreement with the apparent determination made placing the burden to prove the issued statement was coerced fell to defendant, as opposed to the State. Compare N.J.R.E. 104(c) (placing the burden on the prosecution to prove the voluntariness of a defendant's statement), with State v. Lacaillade,

, 528- 29 (App. Div. 1993) (seemingly placing the burden on defendant to prove the threat of termination for failure to give a statement was both subjectively held and objectively reasonable).

9 A-5103-13T3 whether the judge erred in denying defendant's motion for entry

of a judgment of acquittal. On this issue, defendant contends

once Sergeant Pilot's testimony is excluded, the remaining

evidence failed to prove defendant created and distributed the

flyers. The State counters and urges, with or without Sergeant

Pilot's testimony, the evidence defeated defendant's motion

applying the standard articulated in State v. Reyes,

(1967) ("[V]iewing 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, a reasonable jury could find guilt of the charge

beyond a reasonable doubt."). Due to our finding defendant's

conduct was non-actionable protected speech, we need not

consider this question.

We turn to our discussion on whether the evidence supports

conduct proscribed as criminal harassment under N.J.S.A. 2C:33-

4(c). For the reasons set forth below, we conclude it does not.

Defendant was convicted on two counts of harassment under

N.J.S.A. 2C:33-4(c), which reads:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . . .

10 A-5103-13T3 c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

"[C]ourts must consider the totality of the circumstances

to determine whether the harassment statute has been violated."

Cesare v. Cesare,

(1998). Evaluation of

whether facts meet this standard "must be made on a case-by-case

basis." State v. Hoffman,

(1997).

The Supreme Court has instructed "[a] violation of N.J.S.A.

2C:33-4(c) . . . requires proof of a course of conduct." J.D.

v. M.D.F.,

(2011). Objective proof must show

such conduct is "alarming" or prove "a series of repeated acts

. . . done with the purpose 'to alarm or seriously annoy' the

intended victim."

"[I]n addition to a repeated act or

course of conduct, 'the statute requires that the victim . . .

be the target of harassing intent.'" N.T.B. v. D.D.B.,

(App. Div. 2015) (quoting

).

We observe the contrast in the degree between harassment

proscribed by subsection (a) of the statute, directed at

communications "likely to cause annoyance or alarm," N.J.S.A.

2C:33-4(a) (emphasis added), and harassment described under

subsection (c) requiring repeated acts accompanied by a "purpose

to alarm or seriously annoy" the intended victim, N.J.S.A.

11 A-5103-13T3 2C:34-4(c) (emphasis added). "The Legislature has made the

conscious choice that the level of annoyance caused by

communications directed to a person with purpose to harass

[under subsection (a)] need not be as serious as that required

by subsection (c)."

.

The Court has also advised the harassment statute may not

be applied to allow "unconstitutional vagueness and

impermissible restrictions on speech," but must be limited to

regulation of improper behavior.

This requires proof of

"a purpose to harass [a victim, which] may be inferred from the

evidence presented" and from common sense and experience.

. "Although a purpose to harass can be inferred from a

history between the parties, that finding must be supported by

some evidence that the actor's conscious object was to alarm or

annoy; mere awareness that someone might be alarmed or annoyed

is insufficient."

(quoting

). "Similarly, '[t]he

victim's subjective reaction alone will not suffice; there must

be evidence of the improper purpose.'"

(quoting

).

Defendant argues his creation of the vulgar flyers is not

criminally actionable because it amounted to speech protected

under the First Amendment. Because the speech was communicated

12 A-5103-13T3 to others and not directed to the Sergeant, defendant urges

criminal prosecution unconstitutionally restricts free speech,

even if defendant intended to hurt the Sergeant's feelings. The

amicus brief advances a similar argument, noting only speech

directed to an unwilling recipient is restricted, not speech

discussing an unwilling subject to an audience that includes

willing listeners.

"The harassment statute was not enacted to 'proscribe mere

speech, use of language, or other forms of expression.'"

E.M.B. v. R.F.B.,

(App. Div. 2011)

(quoting State v. L.C.,

(App. Div.

1995), certif. denied,

(1996)). A conveyed

opinion, even if stated in crude language, is not harassment.

. Consequently, "proscribed

speech must be uttered with the specific intention of harassing

the listener."

See also State v. Fin. Am. Corp.,

(App. Div. 1981).

In this case, the evidence does not support a finding that

defendant's creation of the flyer found in two areas of the jail

were directed to and invaded the privacy rights of the Sergeant.

Also, no proof supports such acts were a direct attempt to alarm

or seriously annoy the Sergeant. Rather, defendant's uncouth

annotations to the Sergeant's wedding photograph that was

13 A-5103-13T3 generally circulated amounts to a constitutionally protected

expression, despite its boorish content, which bothered or

embarrassed the Sergeant.

United States Supreme Court precedent repeatedly holds

expressions remain protected even where the content hurts

feelings, causes offense, or evokes resentment. See, e.g.,

Snyder v. Phelps,

,

,

(2011) (quoting Connick v. Myers,

,

,

(1983)) ("[S]peech on public issues occupies the highest rung of

the hierarchy of First Amendment values, and is entitled to

special protection."); Hustler Magazine, Inc. v. Falwell,

,

,

(1988) (reviewing an advertisement parody caricature of a

minister in an incestuous rendezvous with his mother); NAACP v.

Claiborne Hardware Co.,

,

,

(1982) ("Speech does not lose its

protected character, however, simply because it may embarrass

others."); Hess v. Indiana,

,

,

(1973) (allowing

expletives during a demonstration); Org. for a Better Austin v.

Keefe,

,

,

(1971) (vacating prior injunction prohibiting the

14 A-5103-13T3 distribution of leaflets alleging a local businessman was

engaging in "blockbusting" by spreading rumors minorities were

moving into certain neighborhoods); Cohen v. California,

,

,

(1971) (permitting the wearing of a jacket bearing the words

"Fuck the Draft"); Garrison v. Louisiana,

,

,

(1964) (rejecting

view defamatory speech could be punished based on motives of the

speaker, even if speaker has express malice); Terminiello v.

Chicago,

,

,

,

1133-34 (1949) (reviewing criticisms of political and racial

groups).

As is ably pointed out in the amicus brief, the altered

photograph in question was not directed to the Sergeant. Were

the Law Division's application of N.J.S.A. 2C:33-4(c) upheld,

criminal harassment would curb speech ranging from a person

submitting a Facebook post excoriating an ex-lover for cheating,

to the creation of offensive political flyers criticizing a city

council member. Eugene Volokh, One-To-One Speech vs. One-To-

Many Speech, Criminal Harassment Laws, and "Cyberstalking", 107

NW U. L. Rev. 731, 732-34, 774 (2013) (distinguishing the

constitutional protections applicable to "one-to-one speech" and

15 A-5103-13T3 from those protecting "one-to-many speech"). Therefore, we

conclude the Law Division's overbroad application is erroneous.

"Speech is often 'abusive' — even vulgar, derisive, and

provocative — and yet it is still protected under the . . .

Federal constitutional guarantees of free expression unless it

is much more than that . . . . [b]ut unless speech presents a

clear and present danger of some serious substantive evil, it

may neither be forbidden nor penalized." People v. Dietz,

(N.Y. 1989). "It is now clear that words must

do more than offend, cause indignation or anger the addressee to

lose the protection of the First Amendment." Hammond v.

Adkisson,

(8th Cir. 1976).

Defendant's comments were unprofessional, puerile, and

inappropriate for the workplace. Our opinion does not address

whether the nature of defendant's written comments, which were

posted in his workplace, may subject him to discipline by his

employer. However, they do not amount to criminal harassment.

Reversed.

16 A-5103-13T3