STATE OF NEW JERSEY VS. GERALD HILL-WHITE (12-05-0475, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1486-15T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, August 10, 2018
v. APPELLATE DIVISION
GERALD HILL-WHITE, a/k/a
KEVIN FAYSON and GERALD W. HILL,
Defendant-Appellant.
______________________________
Submitted January 23, 20181 – Decided August 10, 2018
Before Judges Reisner, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
12-05-0475.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Christopher
Malikschmitt, Assistant Prosecutor, of counsel
and on the briefs).
The opinion of the court was delivered by
REISNER, P.J.A.D.
1
After the case was calendared, we directed the parties to submit
supplemental briefs on the issue of multiplicity. Those briefs
were filed in June 2018.
Defendant 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
does 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
2
The court dismissed one of the twelve arson counts for lack of
evidence of the victim's presence in the building during the fire.
2 A-1486-15T4
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
sets 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.
I
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
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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
4 A-1486-15T4
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.
II
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. See State v. Prall, 231 N.J. 567,
587-88 (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
5 A-1486-15T4
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 (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 he 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. at 587-88. We affirm
the burglary conviction.
3
The trial court merged the burglary conviction with the arson
convictions, a disposition from which the State has not cross-
appealed. Defendant states that his argument on this point would
only be relevant if all of the arson convictions were reversed and
the burglary conviction were unmerged from the arson convictions.
Nonetheless we address the issue.
6 A-1486-15T4
III
Next we address the issue defendant characterizes as merger,
but which we conclude is more properly addressed as multiplicity,
or improper charging of multiple counts of an offense when the
facts asserted would only support a conviction for one offense.
A. The Doctrines of Merger and Multiplicity
"Merger is based on the principle that 'an accused [who] has
committed only one offense . . . cannot be punished as if for
two.'" State v. Miller, 108 N.J. 112, 116 (1987) (quoting State
v. Davis, 68 N.J. 69, 77 (1975)) (alteration in original); see
N.J.S.A. 2C:1-8(a) (defining when merger is statutorily required);
State v. Robinson, 439 N.J. Super. 196, 200 (App. Div. 2014)
(describing the courts' more flexible non-statutory approach).
"[W]hat is disallowed is double punishment for the same offense."
Davis, 68 N.J. at 77. Merger "implicates a defendant's substantive
constitutional rights." State v. Tate, 216 N.J. 300, 302 (2013)
(quoting Miller, 108 N.J. at 116). Our Supreme Court has
recognized that "[n]ot only does merger have sentencing
ramifications, it also has a measurable impact on the criminal
stigma that attaches to a convicted defendant." Tate, 216 N.J.
at 302-03 (quoting State v. Rodriguez, 97 N.J. 263, 271 (1984)).
With respect to some offenses, the Legislature may "split a
single, continuous transaction into stages, elevate each stage to
7 A-1486-15T4
a consummated crime, and punish each stage separately." Davis, 68
N.J. at 78; see id. at 78-80; see also Tate, 216 N.J. at 312 ("The
cases not requiring merger have had clear statutory differences
illustrating legislative intent to fractionalize a course of
conduct."). However, "[w]ere the legislature, in attempting to
create separate crimes, to do no more than simply apply different
labels to what is in fact the same charge, it would plainly exceed
its authority." Davis, 68 N.J. at 80.
Where merger is appropriate because the defendant has been
convicted of two separate crimes arising from one act, the court
may, despite the merger, impose "the more severe aspects of the
sentence for each offense." Robinson, 439 N.J. Super. at 202; see
State v. Pennington, 273 N.J. Super. 289, 295 (App. Div. 1994)
("Convictions merged for the purpose of sentencing are not
extinguished" and may be unmerged if the conviction into which
they were merged is reversed.).
On the other hand, merger presupposes the existence of at
least two valid convictions. See N.J.S.A. 2C:1-8(a) (prefacing
the statutory merger doctrine with the requirement that "the same
conduct . . . may establish the commission of more than one
offense"). If a defendant cannot lawfully be convicted of an
offense, the invalid conviction must be reversed, rather than
merged into another, valid conviction. See Rodriguez, 97 N.J. at
8 A-1486-15T4
271 (citing State v. Landeros, 32 N.J. Super. 168, 172 (App. Div.
1954), rev'd on other grounds, 20 N.J. 69 (1955)).
In contrast to merger, the rule against multiplicity
prohibits the State from charging a defendant with multiple counts
of the same crime, when defendant's alleged conduct would only
support a conviction for one count of that crime. "[A] defendant
may not be tried for two identical criminal offenses in two
separate counts based upon the same conduct." State v. Salter,
425 N.J. Super. 504, 515-16 (App. Div. 2012) (citing State v.
Widmaier, 157 N.J. 475, 498-90 (1999)). Thus, "[m]ultiplicity
occurs when a single offense is charged in several counts of an
indictment." State v. Evans, 189 N.J. Super. 28, 31 (Law Div.
1983).4
The bar against multiplicity relates to the Double Jeopardy
principle prohibiting "multiple punishments for the same offense."
Salter, 425 N.J. Super. at 515-16 (quoting Widmaier, 157 N.J. at
489-90). While multiplicity begins as a charging error, it can
obviously result in a defendant being improperly convicted of
multiple crimes, when he or she only committed one crime. Evans,
189 N.J. Super. at 31-32. Multiplicity may also implicate a
defendant's right to a fair trial, because trying a defendant for
4
Evans is not binding on us, but we find it persuasive.
9 A-1486-15T4
multiple counts of the same offense, when only one offense was
committed, may prejudice the jury.5 See Evans, 189 N.J. Super. at
31-32 (quoting United States v. Reed, 639 F.2d 896, 904 (2d Cir.
1981)).
A court may remedy multiplicity by setting aside all but one
of the multiple convictions after the verdict, but the better
approach is to address the issue before trial by dismissing the
improperly duplicative counts of the indictment. See Evans, 189
N.J. Super. at 32.
B. The Arson Statute
In order to determine whether the State may charge a defendant
with multiple counts of arson without violating the rule against
multiplicity, we must construe the arson statute.
In determining the meaning of a statute, our goal is "to give
effect to the intent of the Legislature." State v. Morrison, 227
N.J. 295, 308 (2016) (quoting Maeker v. Ross, 219 N.J. 565, 575
(2014)). We first examine the words of the statute and attribute
to them their ordinary meaning. State v. Malik, 365 N.J. Super.
5
While we find improper multiplicity in the arson charges and
convictions here, we reject defendant's argument that the improper
multiple charges warrant reversing his arson conviction altogether
due to jury prejudice. As discussed earlier in this opinion, the
evidence against defendant was overwhelming; he would have been
convicted of second-degree arson, even if he had been tried on one
count of arson instead of twelve counts. See Prall, 231 N.J. at
587-88.
10 A-1486-15T4
267, 274 (App. Div. 2003). "[I]f the language is plain and its
meaning clear, the inquiry ends there," and we enforce the statute
as written. Ibid.
If the words of the statute are not clear, or if the
"statutory language yields more than one plausible
interpretation," we consider extrinsic evidence to decipher the
Legislature's intent. State v. Shelley, 205 N.J. 320, 323-24
(2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).
"Such extrinsic sources, in general, may include the statute's
purpose, to the extent that it is known, and the relevant
legislative history." State v. Drury, 190 N.J. 197, 209 (2007).
We consider words and phrases within the statute "not only in
their own contextual setting, but in relation to surrounding
provisions in the statutory scheme." Malik, 365 N.J. Super. at
276.
We construe the statute in a sensible manner, and consistent
with its purpose, avoiding a construction that will lead to an
absurd result. Morrison, 227 N.J. at 308. "When interpreting the
intent of the Legislature, any unreasonable construction must be
rejected when a reasonable reading is apparent." State v. Carlos,
187 N.J. Super. 406, 414 (App. Div. 1982). Where a criminal
statute is subject to a broad and a narrow interpretation, the
court is "constrained to apply the narrow one." Morrison, 227
11 A-1486-15T4
N.J. at 314 (citing Shelley, 205 N.J. at 328); see also Drury, 190
N.J. at 209-10 ("if plain meaning and extrinsic sources" do not
yield a clear answer, the court must resolve ambiguity in a
criminal statute in favor of the defendant).
The arson statute divides the crime into two categories
(aggravated arson and arson), with gradations ranging from first
to fourth degree depending on the defendant's mental state, the
type of property burned, the purpose of the fire, and the danger
to people. N.J.S.A. 2C:17-1. Notably, only some forms of arson
include danger to others as an element of the offense. With the
exception of arson for hire, all other types of arson require
damage to property by burning or explosion.
Second-degree aggravated arson is defined as starting a fire
or causing an explosion, whether on the actor's property or someone
else's property:
(1) Thereby purposely or knowingly
placing another person in danger of death or
bodily injury; or
(2) With the purpose of destroying a
building or structure of another; or
(3) With the purpose of collecting
insurance for the destruction or damage to
such property under circumstances which
recklessly place any other person in danger
of death or bodily injury; or
(4) With the purpose of destroying or
damaging a structure in order to exempt the
12 A-1486-15T4
structure, completely or partially, from the
provisions of any State, county or local
zoning, planning or building law, regulation,
ordinance or enactment under circumstances
which recklessly place any other person in
danger of death or bodily injury; or
(5) With the purpose of destroying or
damaging any forest.
[N.J.S.A. 2C:17-1(a).]
Third-degree arson consists of purposely starting a fire or
causing an explosion, whether on the actor's property or another's:
(1) Thereby recklessly placing another
person in danger of death or bodily injury;
or
(2) Thereby recklessly placing a building
or structure of another in danger of damage
or destruction; or
(3) With the purpose of collecting
insurance for the destruction or damage to
such property; or
(4) With the purpose of destroying or
damaging a structure in order to exempt the
structure, completely or partially, from the
provisions of any State, county or local
zoning, planning or building law, regulation,
ordinance or enactment; or
(5) Thereby recklessly placing a forest
in danger of damage or destruction.
[N.J.S.A. 2C:17-1(b).]
Fourth-degree arson occurs when a person has a duty to report
or extinguish a fire and he or she fails to comply with that duty.
N.J.S.A. 2C:17-1(c). The statute provides:
13 A-1486-15T4
A person who knows that a fire is endangering
life or a substantial amount of property of
another and either fails to take reasonable
measures to put out or control the fire, when
he can do so without substantial risk to
himself, or to give prompt fire alarm, commits
a crime of the fourth degree if:
(1) He knows that he is under an
official, contractual, or other legal duty to
prevent or combat the fire; or
(2) The fire was started, albeit
lawfully, by him or with his assent, or on
property in his custody or control.
[N.J.S.A. 2C:17-1(c).]
While a few forms of arson include danger to a person as an
element of the offense (i.e., setting fire to purposely place
another in danger; setting fire to collect insurance proceeds or
evade regulations while recklessly placing another in danger; and
purposely setting fire that recklessly endangers others), most
forms of arson require no proof of harm or danger to others (i.e.,
setting fire to destroy a structure or forest; recklessly placing
a structure or forest in danger of damage or destruction; setting
fire to collect insurance proceeds or to evade regulations; failing
to report a fire; arson for hire; and, in some instances, setting
fire to a place of worship).
Notably, the Legislature reserved the most serious punishment
for arson offenses that do not necessarily endanger human life.
First-degree arson comprises arson for hire and arson of a
14 A-1486-15T4
religious structure. Arson for hire does not require proof either
that a fire was actually set or that any person was harmed or
endangered. See State v. Allison, 208 N.J. Super. 9, 25 (App. Div.
1985).
Any person who, directly or indirectly, pays
or accepts or offers to pay or accept any form
of consideration including, but not limited
to, money or any other pecuniary benefit,
regardless of whether any consideration is
actually exchanged for the purpose of starting
a fire or causing an explosion in violation
of this section commits a crime of the first
degree.
[N.J.S.A. 2C:17-1(d).]
Arson of a religious structure encompasses some acts that require
danger to human life and some that do not; the common denominator
is that the offense must target a public house of worship:
Notwithstanding the provisions of any section
of this Title to the contrary, if a person is
convicted pursuant to the provisions of
subsection a., b. or d. of this section and
the structure which was the target of the
offense was a church, synagogue, temple or
other place of public worship, that person
commits a crime of the first degree . . . .
[N.J.S.A. 2C:17-1(g).]
Although arson is classified in the Code as a crime against
property, we may not draw conclusions from its placement in the
Code. See N.J.S.A. 2C:1-1(f) ("[N]o implication or presumption of
a legislative construction is to be drawn" from the "classification
15 A-1486-15T4
and arrangement of the several sections of the code."). On the
other hand, based on a common sense reading of the statute as a
whole, we conclude that the Legislature deemed arson as an offense
against property, the gravamen of which is, in general, setting a
fire. See State v. Olivero, 221 N.J. 632, 639 (2015) ("Statutory
language is to be interpreted in a common sense manner to
accomplish the legislative purpose.").
In discussing the legislative history of the Criminal Code,
which consolidated all offenses into Title 2C in 1978, the New
Jersey Criminal Law Revision Commission wrote that "the words
'starts a fire or causes an explosion' . . . identify the kind of
behavior which is the subject of" N.J.S.A. 2C:17-1. II Final
Report of the N.J. Criminal Law Revision Comm'n, The N.J. Penal
Code: Commentary § 2C:17-1 at 205 (1971) (N.J. Penal Code
Commentary). Further, with the exception of arson for hire and
failure to report an arson, all other types of arson are "complete
as soon as the fire [is] started." State v. Lewis, 223 N.J. Super.
145, 152 (App. Div. 1988).
The development of arson from common law to its current
statutory form also supports a finding that arson is a crime
against property. At common law, arson was defined as the willful
and malicious burning of the house or adjacent structures of
another. State v. Fish, 27 N.J.L. 323, 324 (1859); State v.
16 A-1486-15T4
Arenas, 363 N.J. Super. 1, 6 (App. Div. 2003). The offense was
"against the possession of another," and the purpose of it was to
protect the person in possession of the house. Fish, 27 N.J.L.
at 324; accord State v. Midgeley, 15 N.J. 574, 576 (1954) ("The
common law felony [of arson] was a crime against another's
habitation, not against another's property but against his life
and safety at his place of abode, that is, his dwelling house.").
Over time, the definition of arson changed to eliminate the
requirement that the property be within another's possession and
to add other types of property, such as ships, buildings other
than houses, land, trees, crops, cranberry bogs, fences, and
lumber. See Arenas, 363 N.J. Super. at 6; Midgeley, 15 N.J. at
578; N.J. Penal Code Commentary at 204. In its current form,
arson proscribes the burning of property, regardless of
possession, and in most cases, regardless of whether any person
is harmed or threatened. N.J.S.A. 2C:17-1. Where it is included,
danger to others relates to the degree of the offense. See
N.J.S.A. 2C:17-1(a)(1), (3), and (4) (second-degree aggravated
arson); N.J.S.A. 2C:17-1(b)(1) (third-degree arson).
C. Comparison to Other Statutes
In construing the arson statute, it is also helpful to
consider the wording and interpretation of other statutes
addressing crimes against property and crimes against persons.
17 A-1486-15T4
The State argues that because second and third degree arson,
as defined in N.J.S.A. 2C:17-1(a)(1) and (b)(1), include placing
another person in danger, the statute should be construed as
permitting multiple charges of arson if multiple victims are
endangered. However, when we consider other statutes that include
harm to persons as an element, we find the State's argument
unpersuasive.
We begin by considering the way our courts have construed the
robbery statute. Theft can be transformed into robbery, if the
thief threatens someone with bodily injury or "[i]nflicts bodily
injury or uses force" on another person, while committing or
attempting to commit the theft or while escaping from the scene.
N.J.S.A. 2C:15-1(a). Arguably, this portion of the robbery statute
was intended to prevent and punish violence against theft victims
or bystanders. However, that does not mean that a thief can be
charged with multiple counts of robbery if he or she injures or
threatens to injure multiple people while committing one theft.
See State v. Sewell, 127 N.J. 133, 137-38 (1992).
In Sewell, the Court held that a defendant who injured several
bystanders after committing one theft could only be convicted of
one count of robbery. Ibid. Likewise, in State v. Lawson, 217
N.J. Super. 47, 51 (App. Div. 1987), we held that the robbery
statute cannot "sustain two robbery convictions for assaults upon
18 A-1486-15T4
two victims" while fleeing after a theft "from a third victim."
See also Carlos, 187 N.J. Super. at 406, 415-16 (where the
defendant committed theft against two victims, he could only be
convicted of two counts of robbery even though he threatened four
people).
It is likewise useful to consider the burglary statute, which
is also graded based on harm to victims. Burglary consists of
entering a structure with the purpose to commit an offense therein.
N.J.S.A. 2C:18-2. Burglary is a third-degree crime, unless the
actor commits or attempts to commit certain additional acts in the
course of the burglary. For example, burglary is a second-degree
crime if in the course of committing the offense, the actor
"purposely, knowingly or recklessly inflicts, attempts to inflict
or threatens to inflict bodily injury on anyone[.]" N.J.S.A.
2C:18-2(b). However, that does not mean that one burglary can be
charged as multiple burglaries if the actor harms or menaces
multiple people in the course of committing the burglary. See
Lewis, 223 N.J. Super. at 153 (stating that a second-degree
burglary conviction would not merge with convictions for
aggravated manslaughter and other offenses, because the crime of
burglary "was completed upon entry" into the building).
We also glean insight into the multiplicity issue by
considering statutes that unambiguously address crimes against the
19 A-1486-15T4
person. The statutes prohibiting assault and homicide primarily
grade offenses against persons based on the degree of harm the
actor causes or attempts to cause to the victim. For example,
simple assault, a disorderly persons offense, is defined, in part,
as attempting to cause or causing "bodily injury to another,"
N.J.S.A. 2C:12-1(a)(1), while aggravated assault, a second, third
or fourth-degree offense, is defined, in part, as causing or
attempting to cause "serious bodily injury to another." N.J.S.A.
2C:12-1(b)(1). Portions of the grading section provide that
aggravated assault is a higher degree crime if the victim is
actually injured. See N.J.S.A. 2C:12-1(b). Murder and felony
murder are first-degree crimes requiring proof that the actor
killed the victim or that the victim was killed while the actor
was engaged in committing or attempting to commit certain other
enumerated offenses. See N.J.S.A. 2C:11-3(a).
By contrast, second and third-degree arson do not require
proof that any victim was actually injured or killed, and the
offenses are not graded differently depending on whether victims
were threatened with injury, serious injury, or death. In fact,
the first-degree arson offenses either require no proof that anyone
was endangered, or turn on the use of the structure rather than
the degree of danger to the victims. See N.J.S.A. 2C:17-1(d)
(arson for hire); N.J.S.A. 2C:17-1(g) (arson of a place of public
20 A-1486-15T4
worship). The Legislature carefully crafted the statutes on
assault and murder, to differentiate the grading and the punishment
depending on the degree of harm or attempted harm to the victim.
The arson statute is not similarly crafted, suggesting that its
primary focus is not on punishing for the harm caused to each
individual victim, but on punishing for the act of setting the
fire.
Because the arson statute does not distinguish between the
type or degree of harm to the person, under the State's
interpretation, someone who set a fire for the purpose of slightly
injuring five people could be punished more harshly than someone
who set a fire for the purpose of killing one person. This
anomalous result suggests that the State's construction of the
arson statute is contrary to the Legislature's intent. It is one
thing to punish a crime – such as theft, burglary, or arson – more
harshly if people are endangered or hurt while the crime is being
committed, and quite another thing to permit multiple charges and
multiple punishments without differentiating among the degrees of
harm caused to the victims. We conclude that the Legislature
intended each act of fire-setting to be charged and punished as
one crime, and intended that the injury or intended injury to each
21 A-1486-15T4
victim be charged and punished using the appropriate statutes
governing assault or homicide.6
All of the New Jersey published opinions we have found reflect
that approach to charging. The State has not cited to any
published opinion of our courts in which a defendant who set one
fire was charged with multiple counts of arson. For example, in
State v. Craig, 237 N.J. Super. 407, 409 (App. Div. 1989), and
Lewis, 223 N.J. Super. at 145, the defendant set one fire that
killed or injured multiple people. In those cases, the defendant
was charged with one count of arson and multiple counts of murder
or aggravated assault. See also Prall, 231 N.J. at 575. In Craig,
the defendant was convicted of one count of arson and multiple
counts of manslaughter. 237 N.J. Super. at 409. The issue was
whether the defendant's several manslaughter convictions should
merge into one manslaughter conviction; we held they did not merge.
Id. at 413.
In Lewis, the issue was whether the convictions for arson and
aggravated assault should have merged with the conviction for
aggravated manslaughter. 223 N.J. Super. at 151-53. As in this
case, Lewis set one fire in an apartment building, although in
6
We do not intend to address the situation where a defendant
sets fire to one building, or unit, and the fire spreads to another
building or unit. That issue is not before us.
22 A-1486-15T4
that case, the fire also caused the death of one victim and serious
injuries to several others. We rejected Lewis's merger argument,
reasoning that
the legislature designated fire setting
separately from other forms of assaultive
conduct, with a "specific intent to
fractionalize the offense." The arson was
complete as soon as the fire was "started."
[Lewis, 223 N.J. Super. at 152 (citations
omitted).]
Lewis also reasoned that the legislative history of the arson
statute indicated that the Legislature addressed the issue of
arson's consequences by grading it as a more serious crime if it
caused danger to persons:
The Criminal Law Revision Commissioners
originally recommended that the arson statute
not grade the offense according to its danger
to persons because "[t]o make any dangerous
burning a crime of the second degree would be
inconsistent with Sections 2C:12-1 . . . ."
relating to assault. The legislature's refusal
to adopt this recommendation is indicative of
its intent to punish arson separately based
upon the risk that fire presents.
[Id. at 152-53 (citations omitted).]
In other words, instead of classifying arson as a form of
assault, the Legislature classified it as a property crime, based
on setting a fire. Ibid. But, the Legislature chose to grade
fire-setting more seriously if it endangered human life. See
Senate Judiciary Committee Statement to Senate, No. 738 (May 15,
23 A-1486-15T4
1978). The Legislature also intended to fractionalize arson, in
the sense that a defendant can be charged and punished for setting
the fire, in addition to being charged and punished for assault
and murder based on the injury or death caused by the fire. See
Miller, 108 N.J. at 119 (addressing fractionalizing of offenses);
State v. Mirault, 92 N.J. 492, 505-06 (1983). Thus, an arson
conviction does not merge with accompanying assault or homicide
convictions. Lewis, 223 N.J. Super. at 152. Nonetheless, that
does not mean that a defendant can be charged with multiple counts
of arson for setting one fire.
The State relies on the following language from Craig: "the
view that there are as many crimes committed as there are victims
finds overwhelming support in other jurisdictions." 237 N.J.
Super. at 416. However, that language refers to multiple counts
of assault or homicide, not multiple counts of arson. Ibid. Two
of the cases that Craig cited in support of the quoted language
involved arson. In both cases, a defendant was charged with one
count of arson, and multiple counts of attempted murder or
aggravated assault. See Neal v. State, 357 P.2d 839, 841 (Cal.
24 A-1486-15T4
1960); State v. Rieck, 286 N.W.2d 724, 725 (Minn. 1979). We cannot
accept the State's argument.7
Although it is not binding on us, we find support for our
conclusion in Handy v. State, 803 A.2d 937 (Del. 2002), decided
by the Supreme Court of Delaware. In Handy, the State charged the
defendant with multiple counts of attempted murder and multiple
counts of arson, for setting one fire that endangered several
victims. Id. at 939. In construing Delaware's arson statute, the
court traced the history of the statute back to the common law and
concluded that historically, arson statutes contemplated that
arson should be "one single, serious charge based [on] the fact
that fire is inherently, and unpredictably, destructive." Id. at
943. The court held that "a charge of multiple counts of first
degree arson for multiple intended victims based on a single fire
constitutes an unconstitutional multiplicity prohibited by the
Double Jeopardy Clause." Id. at 939.8 The court reasoned that
7
The State's reliance on State v. Carey, 168 N.J. 413 (2001),
and State v. Molina, 168 N.J. 436 (2001), is misplaced. Those
cases involved assault, not arson, and did not address multiplicity
of charges. Rather, the cases addressed the appropriateness of
imposing consecutive sentences for assault by auto, where multiple
victims were killed or injured in a single drunk driving accident.
8
The courts of Idaho and Texas have construed their states' arson
statutes the same way. State v. Payne, 3 P.3d 1251, 1254 (Idaho
2000) ("Although Payne's act of arson was enhanced to aggravated
arson by virtue of the deaths of two persons, it does not follow
25 A-1486-15T4
"the basis of the crime of arson is directed to the property,"
while the presence of endangered inhabitants was "one element in
fixing the degree of arson." Ibid.
The court also reasoned that, because the Delaware statute
was phrased in terms of a fire creating the danger of harm, as
opposed to actual harm, to one or more persons, permitting multiple
charges of arson based on setting one fire could lead to absurd
results.
The logical extension of the State's argument
is that, in allowing multiple counts of arson
for multiple intended victims, there could be
some absurd outcomes . . . . Suppose, for
example, that a defendant sets a fire in a
closet next to a crowded banquet hall with 500
patrons, a fire alarm sounds, all file out
quietly and uneventfully, and the defendant
is captured and charged. May the State charge
the defendant with 500 counts of arson? . . .
There is nothing in the Delaware Code to
indicate that the General Assembly intended
500 charges of arson in that situation, rather
than one count to reflect the inherently
dangerous nature of the offense of arson.
. . . .
that Payne may be convicted for two acts of arson when there was
only one fire."); Lozano v. State, 860 S.W.2d 152, 155-56 (Tex.
App. 1993) (Although injury to the victims increased the degree
of the arson, "appellant committed a single offense, allowing a
single unit of prosecution, when he committed arson by setting a
single house on fire."). We agree with Handy that the one
published case reaching a different result contains little
rationale and is far less persuasive than the lengthy dissent in
that case. See People v. Hanks, 528 N.E.2d 1044 (Ill. App. Ct.
1988).
26 A-1486-15T4
The fact that the Delaware first degree
arson provision focuses on the intended harm
to third parties, not the actual harm,
demonstrates the vulnerability of the State's
argument . . . . It may not be so easy to
identify all those to whom a defendant
intended harm, or those whose presence is a
reasonable possibility.
[Id. at 945.]
The court reasoned that the State had other "ways to seek
additional punishment" for persons who start fires intending to
harm multiple victims. Ibid. "Furthermore, should an arsonist
cause actual harm or death, substantive charges based on that harm
are available." Ibid. The court noted that Handy had been charged
and convicted of attempted murder, in addition to arson. Ibid.
As in Handy, Craig, and Lewis, in this case, the State could
have charged defendant with one count of arson and multiple counts
of attempted murder. However, the State instead improperly
multiplied the one act of arson into an indictment charging twelve
counts of arson, and defendant was improperly convicted of eleven
counts of arson instead of only one count. As a result, we reverse
all but one of the arson counts, and we vacate the sentences
imposed as to those reversed convictions. We affirm defendant's
conviction of one count of second-degree arson.
27 A-1486-15T4
IV
Most of defendant's sentencing arguments are rendered moot
by our opinion reversing the multiple arson convictions. However,
we briefly address the remaining sentences. We find nothing
excessive or otherwise erroneous in the twenty-year NERA sentence
imposed for the arson conviction. Due to his prior criminal
record, defendant was eligible for an extended term sentence for
the second-degree arson conviction. In imposing that sentence,
the trial court properly considered, as aggravating factors, the
number of victims, their vulnerability, and the heinous nature of
the crime. See N.J.S.A. 2C:44-1(a)(1) (nature and circumstances
of the offense); N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness
of harm). The crime was particularly heinous because many of the
inhabitants were elderly or disabled, and defendant knew of their
vulnerable condition. Moreover, defendant set the fire in a manner
calculated to trap K.G. in her apartment and cause her death. We
affirm the twenty-year NERA sentence for the second-degree arson
conviction.
After reviewing the sentencing transcript, we find that the
trial court gave an adequate statement of reasons for imposing a
consecutive five-year term for the terroristic threats conviction.
See State v. Yarbough, 100 N.J. 627, 643-45 (1985). We find
nothing conscience-shocking or otherwise excessive in the
28 A-1486-15T4
aggregate sentence of twenty-five years in prison. See State v.
Miller, 205 N.J. 109, 128 (2011); State v. Roth, 95 N.J. 334, 364-
65 (1984). As previously noted, we remand to the trial court for
the limited purpose of entering an amended judgment of conviction.
Affirmed in part, reversed in part, remanded in part. We do
not retain jurisdiction.
29 A-1486-15T4