NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2711-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY CARDELL,
Defendant-Appellant.
Argued January 12, 1999 - Decided February 10, 1999
Before Judges Keefe, Eichen, and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County.
Paul B. Halligan, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Halligan, of counsel and on the brief).
Michael J. Williams, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General, attorney; Mr.
Williams, of counsel and on the brief).
The opinion of the court was delivered by
COBURN, J.A.D.
A jury convicted defendant Anthony Cardell of fourth-degree
stalking, N.J.S.A. 2C:12-10. The trial judge, taking into account
defendant's nine prior convictions, sentenced him to prison for
eighteen months, nine months to be served without parole. We
affirm.
Defendant's primary contentions are: (1) the anti-stalking
statute is unconstitutionally overbroad and vague; and (2) his
motion for acquittal under R. 3:18-1 should have been granted
because the evidence was insufficient to support the verdict.
I.
This forty-three-year old defendant's first contact with the
eighteen-year old victim, Mandi Peterson, occurred on September 26,
1996. She had just emerged from her place of employment, the
Playdrome Bowling Center on Route 37 in Toms River, where she
worked as a waitress. It was at the end of her usual work day,
somewhere between midnight and 2 a.m.
He was seated in a distinctively marked pickup truck in the
parking lot. He opened the brief discussion by asking her to "have
sex with him" or "give him head" for $50 in cash or for some
freshly cut cocaine. She politely but firmly refused, got in her
car, and began driving home. She watched as he followed her in his
truck for approximately three miles, until she turned from Route 37
onto Vaughn Avenue.
On the following evening between 7 p.m. and 9 p.m., defendant
called the Playdrome. The call was answered by another employee.
Mandi picked up an extension and heard defendant ask for her by her
full name, which frightened her since he was a stranger. He also
said, "If she doesn't understand who I am or she doesn't get on the
phone right now, I will make sure I catch up with her later."
Mandi said, "I can't hear you, sorry," and hung up. The phone rang
again. Mandi picked it up and said, "Sorry. You have the wrong
number," and hung up. Moments later, he called again. This time
she heard the defendant say, "Mandi, this is Tony." When she said
she did not know who he was, he replied, "You
have to know who I
am. I'm the one that you
need to take up my offer." (Emphasis
added.) She said she could not hear him, that he had the wrong
person, and she hung up. When she left work sometime after
midnight, she saw defendant in his truck, which was parked in the
same place as the previous night. He asked her to take him up on
his offer. She replied, "No. Yesterday I said, 'No.'" She walked
back into the Playdrome, thinking that he might leave. He drove
away after a few seconds, but when she began her drive home, she
saw him waiting at the entrance of the almost adjacent K-Mart,
ready to pull out. On this occasion he followed her for only a
short distance.
The next evening when she left work, defendant again followed
her in his truck as she drove towards home from the Playdrome. On
this occasion, he continued behind her after she turned onto Vaughn
Avenue, following her until she pulled into the driveway of a
stranger's house on Holly Village Lane, which was a block from her
house. After she turned her lights off, hoping that he would
incorrectly believe this was where she lived, he drove away and
then she went home.
On the following evening around midnight, Mandi parked her car
in the Playdrome parking lot so that she could speak briefly to her
boyfriend, who was inside. When she emerged about a minute later,
she noticed that her car had been dented on the driver's side door.
The next contact occurred on Monday, September 30. At about
11:30 p.m., a fellow employee told her that he had seen the
defendant parked outside the Playdrome behind the dumpsters,
apparently waiting for her. When she drove home a little later,
she decided to turn onto Adams Avenue, her usual turn-off point
from Vaughn. As she drove onto Adams, she saw the defendant
standing beside his truck, and as she passed he said, "I seen
someone went boom boom to your car."
The next evening, Mandi repeatedly heard the distinctive sound
made by defendant's truck as he drove around the Playdrome parking
lot. Before leaving work, she had friends check the lot to be sure
he was not there. They did not see him, but immediately after
Mandi turned on her car's ignition, she heard defendant start his
truck. She sounded the car's horn. As two of her friends ran
toward her from the Playdrome, she saw defendant drive from a lot
across the road where he had been parked behind some large trucks.
He made a quick turn and drove very slowly past where she was then
standing with her friends. Mandi went back into the Playdrome and
called the police. They arrived promptly, took a statement
detailing the past events, and searched the area for the truck
without success. Nonetheless, when Mandi drove home at about 2
a.m., the defendant appeared again and followed her for about five
blocks to her home. She called the police immediately. Within
minutes, they found the defendant in his truck on Route 37 just
east of Vaughn Avenue. Defendant lived in Seaside Park.
Mandi testified that the episodes involving this defendant
were extremely distressing and placed her in great fear of physical
injury.
II.
In
State v. Saunders,
302 N.J. Super. 509 (App. Div.),
certif.
denied,
151 N.J. 470 (1997), we sustained New Jersey's original
anti-stalking statute,
L. 1992,
c. 209,See footnote 1 against claims that it was
unconstitutionally overbroad and vague. By then the Legislature
had amended the statute.
L. 1996,
c. 39, effective June 20, 1996.See footnote 2
Since Cardell's offense began in September 1996, the new statute
applied to him.
A.
OVERBREADTH
As we observed in
Saunders,
supra, "Overbreadth is a doctrine
. . . that addresses the statute's reach but not its clarity." 302
N.J. Super. at 518. The test for determining overbreadth is
whether the statute substantially restricts constitutionally
protected conduct.
Id. at 519.
Although there are differences
between the original and the amended statute, none of the
differences noted by Cardell substantially bear on this issue and
make the present statute overbroad. Therefore, based on
Saunders's
sound resolution of the issue, we reject the contention that the
present statute is overbroad. Nonetheless, we will briefly address
Cardell's specific points directed at what he perceives as
significant differences between the two laws.
Cardell argues the present statute is overbroad, limiting his
First Amendment rights to freedom of speech, association, and
assembly, because, while it continues the exemption for "organized
group picketing,"
it does not contain the following provision found
in the original act: "Constitutionally protected activity is not
included within the meaning of 'course of conduct.'"
L. 1992,
c.
209, § a(1).
That vaguely expressed exception from the original statute's
reach added nothing of substance. Nonetheless, defendant contends
that its absence from the present act has the effect of
conditioning the exercise of First Amendment rights on membership
in an organized group involved in picketing. Nowhere does
defendant explain how this inference can be drawn from the statute.
In fact, it cannot. Whatever the particular protection of
picketing might mean, it certainly does not follow from it that the
constitutional rights of people not involved in organized picketing
are somehow lessened by that protection's presence in the statute.
The reach of the statute must be judged on what it expressly
prohibits. Anyone exercising first amendment rights, whether in
organized groups or otherwise, cannot be convicted under the
statute "even without any specific exception."
McDade v. State,
693 A.2d 1062, 1065 (Del. 1997).
Next, Cardell argues that the statute is too broad because of
its definition of "course of conduct" in subsection a(1). He
contends that subsection's references to "maintaining a visual or
physical proximity to a person" and to "conveying verbal threats"
would unduly restrict his ability to go where he wishes and to say
what he wants to say.
But these phrases cannot be considered in isolation from the
balance of the statute, which clearly limits its reach in the
following manner. Subsection a(1) specifies that the speech or
conduct be "directed at or toward a perso
n." Subsection a(2)
requires that the speech or conduct occur on at least two
occasions. Subsection b(1) requires that a defendant "purposely"
engage in the course of conduct and, more specifically, defines the
nature of the prohibited activity by stating that it must be
capable of causing "a reasonable person to fear [for himself or his
immediate family] bodily injury . . . or death." And subsection
b(2) requires the defendant to have "knowingly, recklessly or
negligently"See footnote 3 caused a "reasonable fear" of bodily injury or death.
Those restrictions on the breadth of the statute are clearer
and greater than the restrictions contained in the original
statute, which we have sustained as not overbroad. For example,
under the original statute a defendant could be guilty if his
intent was merely to annoy the victim.
L. 1992,
c. 209, § b. Now,
a reasonable fear of bodily injury (obviously as defined in
N.J.S.A. 2C:11-1a) or death is required.
N.J.S.A. 2C:12-10b(2).
Also, under subsection a(1) of the original statute the course of
conduct was condemned if it would cause a reasonable person to
suffer "emotional distress."
L. 1992,
c. 209, § a(1). That
arguably more extensive phrase has been eliminated, and instead,
the statute requires reasonable fear of bodily injury or death.
We also reject defendant's contention that the new statute is
overbroad because it has substituted for specific intent to annoy
or place in reasonable fear of bodily injury or death the concept
of purposely engaging in conduct aimed at a specific person that
would cause a reasonable person to fear bodily injury or death.
That is not to say that the new statute is not somewhat broader.
Under it, a defendant can no longer defend by saying that however
outrageous his conduct might have been, it was not his actual
intent to cause the requisite fear. But this additional and
important protection to victims only incrementally increases the
reach of the statute; it does not wrongly extend that reach to "'a
substantial amount of constitutionally protected conduct.'"
State
v. Mortimer,
135 N.J. 517, 530 (quoting
Houston v. Hill,
482 U.S. 451, 458,
107 S. Ct. 2502, 2508,
96 L. Ed.2d 398, 410 (1987)),
cert. denied,
513 U.S. 970,
115 S. Ct. 440,
130 L. Ed.2d 351
(1994).
Few, if any, rights are as precious to Americans as those
contained in the First Amendment to our Federal Constitution, but
that great Amendment is not a refuge against criminal laws that do
not restrict our protected freedoms. In short, there is no
constitutional right to threaten other people in the manner
prohibited by our anti-stalking statute.
See, e.g.,
Salt Lake City
v. Lopez,
935 P.2d 1259, 1262-65 (Utah Ct. App. 1997) (rejecting an
overbreadth challenge to its stalking statute, a law that in all
relevant regards tracks the provisions of our present statute.)
B.
VAGUENESS
The defendant also argues that the anti-stalking statute is
unconstitutionally vague on its face and as applied to his conduct
in this case. His argument again focuses on the phrase "repeatedly
maintaining a visual or physical proximity" to the victim. In
essence, he complains that the phrase fails to inform how close one
must get to be in violation of the law.
In
State v. Saunders,
supra, we also considered a vagueness
challenge to the original statute. 302
N.J. Super. at 520-23. The
defendant had argued that the word "following" was unduly vague.
We rejected that contention, concluding that a person of ordinary
intelligence would understand that it included deliberately and
repeatedly traveling to a location where another person routinely
goes to watch that person.
Id. at 522.
The present statute substitutes for "following" the phrase in
question--"repeatedly maintaining visual or physical proximity to
a person." There is no significant difference between these
concepts. Moreover, although we did not rule on the
constitutionality of the present statute in
Saunders, we did say
that its substitute for "following" was not unduly vague:
[T]he new language in the statute outlaws
specific conduct, such as "repeatedly
maintaining a visual or physical proximity to
a person" or "written threats or threats
implied by conduct." . . . [W]e note that the
amended statute is not unconstitutionally
vague based on defendant's argument. It is
clear what type of conduct is proscribed.
Id. at 523 (citations omitted).]
Therefore, based on the holding of Saunders, reinforced by its
dictum addressing the phrase in question, we are satisfied that
defendant's vagueness argument lacks substance.
Defendant also alludes, as he did in his overbreadth argument,
to the difference between the original statute and the present
statute on the issue of intent. Instead of requiring proof that a
defendant specifically intended to cause fear of bodily injury or
death, L. 1992, c. 209, § b, the present statute requires that
defendant purposely engage in the defined course of conduct in a
manner that would cause a reasonable person to fear bodily injury
or death, N.J.S.A. 2C:12-10b(1). In addition, the present statute
requires proof that a defendant knowingly, recklessly, or
negligently placed the victim in reasonable fear of bodily injury
or death, N.J.S.A. 2C:12-10b(2).
In Saunders, supra, after rejecting the vagueness claim, the
court added: "Moreover, defendant's contention that the stalking
statute is vague fails because the statute requires a specific
intent." 302 N. J. Super. at 522. Defendant contends it was the
original statute's requirement of specific intent that moved the
Saunders court to hold that the statute was not unconstitutionally
vague. Actually, the presence of specific intent was simply an
additional reason for the result, not its sole basis. Id. at 522
23. In any case, we perceive no difference from a constitutional
point of view between the different forms of intent required by
these statutes.
In adopting a general intent standard, our Legislature
accepted the approach suggested by the National Institute of
Justice, which drafted a model anti-stalking statuteSee footnote 4 at the
request of the Attorney General, pursuant to the direction of
Congress. Christine B. Gregson, Comment, California's Antistalking
Statute: The Pivotal Role of Intent, 28 Golden Gate U. L. Rev. 221,
242 (1998).
The [National Institute of Justice]
published the Model Code as an example of
antistalking legislation that would protect
the rights of both stalkers and victims, as
well as withstand constitutional scrutiny.
The drafters of the Model Code believed that a
general intent standard was preferable to a
specific intent standard because it forces the
criminal justice system to focus on the
behavior of the accused stalker, rather than
on his motivation. This ensures that people
who purposefully engage in stalking behavior
do not escape liability because they did not
specifically intend to cause the victim to be
afraid, even if the victim's fear was the
probable and knowable consequence of the
accused stalker's actions.
[Id. at 262-63.]
The purpose of a specific intent requirement is to "clarify"
other phrases of the statute that might be considered vague. State
v. Mortimer,
135 N.J. 517, 536, cert. denied,
513 U.S. 970,
115 S.
Ct. 440,
130 L. Ed.2d 351 (1994); State v. Finance American Corp.,
182 N.J. Super. 33, 40-41 (App. Div. 1981). The mental state
requirements of the present act, though more general, fully satisfy
that need, as has been recognized, for example, by Lopez, supra,
935 P.
2d at 1265; and State v. Ruesch,
571 N.W.2d 898, 904, 905
(Wis. Ct. App. 1997), both cases upholding statutes like our own
against vagueness challenges.
Our legislation, paralleling as it does the critical
provisions of the Model Code, fully protects a defendant's
constitutional rights by avoiding any suggestion of vagueness that
might be perceived as inhering in the other parts of the statute.
One cannot be convicted, as defendant argues, for merely being in
proximity to the victim on two occasions. On the contrary, one
cannot run afoul of the law unless the conduct is purposely
directed at the victim and is such that it would cause a reasonable
person to fear physical harm. In addition, there can be no guilt
unless the defendant knowingly, recklessly, or, at least,
negligently places the victim in reasonable fear of physical harm.
A statute is facially vague if "there is no conduct that it
proscribes with sufficient certainty." Id. at 593. Given the
mental-state requirements of the present statute and its other
definitional components, the nature of the conduct prohibited is
clear.
Defendant also contends the statute is vague as applied to him
in the circumstances of this case. We disagree.
A statute may be unconstitutionally vague as applied if it
"does not with sufficient clarity prohibit the conduct against
which it [is] sought to be enforced." Id. at 593. Employing that
standard, we will briefly comment on defendant's behavior.
Defendant opened his relationship to the victim, a stranger,
by asking for sex in return for money or drugs. In other words,
his first act was to suggest that she violate the law against
prostitution. N.J.S.A. 2C:34-1b(1). In addition, by this request
he committed the offense of promoting prostitution. N.J.S.A.
2C:34-1b(2). He further demonstrated his willingness to violate
the criminal laws when he offered her cocaine. When she refused,
his pursuit began.
The next evening she twice indicated to him that she wanted to
be left alone, first when he called her at work, and second when
she left work. During the telephone conversation, he made two
statements that were threatening in context. He said to the
victim's co-worker as the victim listened on an extension, "If she
doesn't understand who I am or she doesn't get on the phone right
now, I will make sure I catch up with her later." And he said
directly to the victim, "You know who I am. I'm the one that you
need to take up my offer." That night he waited until she left
work and followed her in his truck for a short distance.
The next night he followed her for over three miles, only
going away when she pulled into the driveway of a stranger's house
that was only a block from her home. A day or two later, defendant
was seen parked behind dumpsters at the victim's place of work
shortly before she usually left work. When she drove home that
night and got near to her house, the defendant was standing beside
his truck waiting and spoke to her about the dent in her car.
The next evening, defendant repeatedly drove around the
Playdrome parking lot and then parked across the street waiting for
her. When she started her car, he started his truck and then drove
slowly past her where she stood in the parking lot with two
friends. Police responding to her telephone call for help could
not locate him. Nonetheless, when she left for home at about 2
a.m., the defendant again appeared in his truck and followed her
for about five blocks to her home.
This conduct is unquestionably proscribed by the statute. The
defendant maintained the prohibited proximity on far more than two
occasions. His conduct, occurring late at night, was threatening,
purposeful, and directed at the victim. He persisted in asking for
sexual conduct that he knew was unwanted and implied that she had
better agree. We are satisfied that the entire course of conduct
would cause a reasonable person to fear bodily injury or death and
that a defendant acting in that manner would or should know that
he was placing the victim in such fear. To suggest, as the
defendant does, that his activity could be seen as the pursuit of
"normal social interaction" is absurd. On the contrary, his
conduct was a patent violation of the statute. Therefore, we
reject his claim that the statute is unconstitutionally vague as
applied to him.
III.
Defendant also contends that the trial judge erred in denying
his motion for a judgment of acquittal. Although not raised below,
he adds a claim for a new trial on the ground that the verdict was
against the weight of the evidence. Under both points, he argues
there was insufficient evidence for a reasonable person in these
circumstances to fear bodily injury. Our discussion under Point II
demonstrates that argument's lack of substance.
In light of the principles governing motions for judgment of
acquittal,
see, e.g.,
State v. Reyes,
50 N.J. 454, 459 (1967), and
those governing motions for a new trial,
see, e.g.,
State v. Brown,
118 N.J. 595, 604 (1990), the claims for those forms of relief are
without merit
and do not warrant further discussion.
R. 2:11
3(e)(2).
IV.
Defendant requested and received a charge on the lesser
included offense of harassment as set forth in
N.J.S.A. 2C:33-4c.
That subsection states that one is guilty of a petty disorderly
persons offense if "with purpose to harass another" one "[e]ngages
in any other course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person."
He does not criticize the charge as given.
Instead, he now complains for the first time that the trial
judge should also have charged that portion of subsection "a",
which created the petty disorderly offense of making communications
in "offensively coarse language" with the purpose to harass.
N.J.S.A. 2C:33-4a. Without identifying the words that he claims
were offensively coarse, defendant contends as a matter of plain
error that subsection "a" was implicated. In light of the
evidence, the only words to which he could be referring, as
described by the victim, were to have "sex" with him or to "give
him head." Although those statements might be considered rude and
perhaps offensively coarse, there is no evidence that either
statement was made with a purpose to harass. Quite the opposite.
The only reasonable interpretation in these circumstances is that
defendant wanted to persuade the victim to voluntarily engage in
sexual activity.
A defendant's entitlement to a charge on a lesser included
offense depends on the presence of a rational basis for conviction
of that charge.
State v. Harris,
141 N.J. 525, 571 (1995).
Subsection "a" requires proof of a purpose to harass. There was no
such proof. Given the insufficiency of the evidence to support
conviction under subsection "a", the trial court did not err in
omitting that offense in its charge to the jury.
V.
Defendant concludes his argument by complaining about the
length of his sentence. In light of his record of nine prior
offenses, we cannot say that the eighteen-month sentence, including
nine months to be served without parole, "shocks the judicial
conscience."
State v. Roth,
95 N.J. 334, 364-65 (1984). The trial
judge followed the applicable sentencing guidelines, finding and
applying aggravating factors supported by the record and giving
extensive reasons for his sentence. In such circumstances, an
appellate court may not alter the sentence.
See, e.g.,
State v.
Johnson,
309 N.J. Super. 237, 270,
certif. denied,
156 N.J. 387
(1998).
Affirmed.
Footnote: 1 In pertinent part, the original version of the act is this:
a. As used in this act:
(1) "Course of conduct" means a knowing and willful
course of conduct directed at a specific person, composed
of a series of acts over a period of time, however short,
evidencing a continuity of purpose which alarms or annoys
that person and which serves no legitimate purpose. The
course of conduct must be such as to cause a reasonable
person to suffer emotional distress. Constitutionally
protected activity is not included within the meaning of
"course of conduct."
(2) "Credible threat" means an explicit or implicit
threat made with the intent and the apparent ability to
carry out the threat, so as to cause the person who is
the target of the threat to reasonably fear for that
person's safety.
b. A person is guilty of stalking, a crime of the
fourth degree, if he purposely and repeatedly follows
another person and engages in a course of conduct or
makes a credible threat with the intent of annoying or
placing that person in reasonable fear of death or bodily
injury.
c. A person is guilty of a crime of the third degree
if he commits the crime of stalking in violation of an
existing court order prohibiting the behavior.
d. A person who commits a second or subsequent
offense of stalking which involves an act of violence or
a credible threat of violence against the same victim is
guilty of a crime of the third degree.
e. This act shall not apply to conduct which occurs
during organized group picketing.
Footnote: 2 As amended, the act, N.J.S.A. 2C:12-10, now provides the
following:
a. As used in this act:
(1) "Course of conduct" means repeatedly maintaining
a visual or physical proximity to a person or repeatedly
conveying verbal or written threats or threats implied by
conduct or a combination thereof directed at or toward a
person.
(2) "Repeatedly" means on two or more occasions.
(3) "Immediate family" means a spouse, parent,
child, sibling or any other person who regularly resides
in the household or who within the prior six months
regularly resided in the household.
b. A person is guilty of stalking, a crime of the
fourth degree, if he:
(1) Purposefully engages in a course of conduct
directed at a specific person that would cause a
reasonable person to fear bodily injury to himself or a
member of his immediate family or to fear the death of
himself or a member of his immediate family; and
(2) Knowingly, recklessly or negligently places the
specific person in reasonable fear of bodily injury to
himself or a member of his immediate family or in
reasonable fear of the death of himself or a member of
his immediate family.
c. A person is guilty of a crime of the third degree
if he commits the crime of stalking in violation of an
existing court order prohibiting the behavior.
d. A person who commits a second or subsequent
offense of stalking against the same victim is guilty of
a crime of the third degree.
e. A person is guilty of a crime of the third degree
if he commits the crime of stalking while serving a term
of imprisonment or while on parole or probation as the
result of a conviction for any indictable offense under
the laws of this State, any other state or the United
States.
f. This act shall not apply to conduct which occurs
during organized group picketing.
A second amendment, L. 1998, c. 17, reflected above, redesignated
former subsection "e" dealing with group picketing as subsection
"f" and adopted a new subsection "e". Neither form of subsection
"e" is implicated in this case.
Footnote: 3 We note that these terms are defined in N.J.S.A. 2C:2-2b.
Footnote: 4 The Model Code reads as follows:
Any person who:
(a) purposefully engages in a course of conduct
directed at a specific person that would cause a
reasonable person to fear bodily injury to himself or
herself or a member of his or her immediate family or to
fear the death of himself or herself or a member of his
or her immediate family; and
(b) has knowledge or should have knowledge that the
specific person will be placed in reasonable fear of
bodily injury to himself or herself or a member of his or
her immediate family or will be placed in reasonable fear
of the death of himself or herself or a member of his or
her immediate family; and
(c) whose acts induce fear in the specific person of
bodily injury to himself or herself or a member of his or
her immediate family or induce fear in the specific
person of the death of himself or herself or a member of
his or her immediate family; is guilty of stalking.
[National Institute of Justice, Project to Develop
A Model Anti-stalking Code for States 43-44 (1993).]
- -