State v. Hill-White

191 A.3d 688, 456 N.J. Super. 1
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 10, 2018
DocketDOCKET NO. A-1486-15T4
StatusPublished
Cited by8 cases

This text of 191 A.3d 688 (State v. Hill-White) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hill-White, 191 A.3d 688, 456 N.J. Super. 1 (N.J. Ct. App. 2018).

Opinion

REISNER, P.J.A.D.

*6Defendant Gerald Hill-White appeals from his convictions for ten counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) ; one count of third-degree arson, N.J.S.A. 2C:17-1(b)(1) ; and one count of second-degree burglary, N.J.S.A. 2C:18-2.2 He *7does not appeal from his conviction for one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a). He also appeals from the aggregate sentence of thirty-five years in prison, thirty of which are subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant presents the following points of argument:

POINT I: THE JUDGE'S ANSWER TO THE JURY'S LEGAL QUESTION ABOUT THE DIFFERENCE BETWEEN A KNOWING AND A RECKLESS STATE OF MIND WAS FUNDAMENTALLY FLAWED, INCLUDING TELLING THE JURY THAT THE TWO ARE "NOT VERY MUCH DIFFERENT." (NOT RAISED BELOW)
POINT II: A CRIMINAL ATTEMPT CAN ONLY BE COMMITTED WITH A PURPOSEFUL STATE OF MIND; YET THE JURY INSTRUCTION AND RE-INSTRUCTION ON BURGLARY DID NOT MAKE THAT POINT CLEARLY, THUS CONSTITUTING PLAIN ERROR; IF THE ARSON CONVICTIONS ARE REVERSED, THE MERGED BURGLARY CONVICTION MUST BE REVERSED AS WELL. (NOT RAISED BELOW)
POINT III: THE ARSON CONVICTIONS SHOULD HAVE MERGED. (NOT RAISED BELOW)
POINT IV: CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED WHEN ONE OVERALL CRIMINAL EPISODE OCCURRED; ALSO, TWO EXTENDED TERMS WERE ILLEGALLY IMPOSED.

We reverse all but one of the arson convictions, because the State violated the rule against multiplicity. Where a defendant *692sets one fire, it is improper for the State to charge that defendant with multiple counts of arson based on the number of victims who were endangered by the fire. The State may address the harm to the victims by charging the defendant with aggravated assault, attempted murder, or other applicable offenses, in addition to the arson count.

We affirm defendant's conviction on one count of second-degree arson. We also affirm the burglary conviction. For defendant's one second-degree arson conviction, we affirm the extended-term sentence of twenty years in prison subject to NERA. We also affirm the five-year consecutive sentence imposed for terroristic threats. The additional sentences for arson are hereby vacated. We remand to the trial court for the limited purpose of issuing an amended judgment of conviction consistent with this opinion.

*8I

In light of the limited issues raised, it is not necessary to recount the trial record in detail. Defendant does not challenge the weight of the evidence, which in this case was overwhelming. The State's proofs included security videos of defendant at the crime scene, expert testimony, DNA evidence, cell phone records and threatening text messages, and defendant's statement to the police. Defendant's trial testimony significantly contradicted his earlier statement, and even on a cold record, his testimony could fairly be described as incredible.

We summarize the State's proofs as follows. Defendant was jealous and angry because his former girlfriend, K.G., had ended their sexual relationship and had begun a sexual relationship with defendant's brother. In the days leading up to the fire, and on the day of the fire, defendant sent K.G. text messages threatening to kill her and telling her that she was "dead." On the night of November 3, 2011, defendant broke into the building where K.G. lived in a third-floor apartment, and at a time when defendant's brother was visiting K.G. The break-in was captured on a security video, which showed defendant with his shoes covered by plastic bags and carrying a red can.

On the third floor, defendant poured gasoline directly outside the door of K.G.'s apartment and then poured a line of gasoline down the hallway toward the exit stairway door. He set the gasoline on fire, left the building, and abandoned the red gasoline can, a hat, and some other items in the bed of a nearby truck. The police found those items; defendant's DNA was on the hat.

At the time defendant set the fire, he knew that other apartments on the third floor were occupied by elderly and disabled residents. The hallway was engulfed in smoke and flames, temporarily trapping the residents in their apartments. Fortunately, the fire caused the building's sprinkler system to activate, and the flames were quickly extinguished.

*9II

Defendant's first two arguments merit little discussion. See R. 2:11-3(e)(2). We find no plain error with respect to defendant's first point, asserting that the trial judge erred in responding to the jury's question about the difference between "knowing" and "reckless." The judge did remark that the knowing and reckless states of mind were "not very much different." However, viewed in context, that comment would not have confused the jury, because the judge also explained in detail and correctly, the difference between the two states of mind. In light of the record, we find no plain error.

*693See State v. Prall, 231 N.J. 567, 587-88, 177 A.3d 755 (2018).

Defendant next argues, for the first time on appeal, that the judge erred in charging the jury as to the required state of mind for burglary.3 We agree, but find no plain error. See R. 1:7-2; R. 2:10-2. Second-degree burglary requires proof that defendant entered a structure without permission, with the purpose to commit an offense therein, and that during the course of the burglary, defendant either purposely, knowingly or recklessly inflicted bodily injury on a person, or attempted to inflict injury. See N.J.S.A. 2C:18-2. An attempt requires purposeful conduct. See State v. Robinson, 136 N.J. 476, 485, 643 A.2d 591 (1994).

As defendant correctly contends, multiple times during the charge, the judge misstated the standard, telling the jury that defendant must have "purposely, knowingly or recklessly inflicted or attempted to inflict bodily injury" on the victims. However, in this case, there was overwhelming evidence that during the burglary, defendant purposely attempted to inflict bodily injury on one or more of the residents. He not only entered the building, but *10he poured gasoline outside K.G.'s door and set it alight. On this record, there is no possibility that the error produced an unjust result. See R. 2:10-2; Prall, 231 N.J.

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Bluebook (online)
191 A.3d 688, 456 N.J. Super. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-white-njsuperctappdiv-2018.