                NOT FOR PUBLICATION WITHOUT THE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, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State

v.   Joas,    34   N.J.    179,    184   (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, 426 N.J. Super. 510,

514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162


4
     Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L.
Ed. 2d 562 (1967).



                                         8                                  A-5103-13T3
(1964)), aff'd, 219 N.J. 584 (2014).                    See also State v. Rivera,

411 N.J. Super. 492, 497 (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, 385 U.S.
at 497, 87 S. Ct. at 618, 17 L. Ed. 2d at 565. ("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, 266 N.J. Super. 522, 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, 50 N.J.

454,    458-59    (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,    154    N.J.   394,     404    (1998).      Evaluation    of

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

basis."      State v. Hoffman, 149 N.J. 564, 581 (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., 207 N.J. 458, 478 (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."          Ibid.     "[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., 442 N.J.

Super. 205, 222 (App. Div. 2015) (quoting J.D., supra, 207 N.J.

at 486).

      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)."      Hoffman, supra, 149 N.J. at 581.

      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.                Ibid.      This requires proof of

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

evidence presented" and from common sense and experience.                            Id.

at 577.     "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."       N.T.B.,          supra,    442    N.J.   Super.      at    222

(quoting J.D., supra, 207 N.J. at 487).                        "Similarly, '[t]he

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

be evidence of the improper purpose.'"                      Ibid. (quoting J.D.,

supra, 207 N.J. at 487).

      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., 419 N.J. Super. 177, 182-83 (App. Div. 2011)

(quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div.

1995),    certif.      denied,    143    N.J.        325    (1996)).      A    conveyed

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

L.C., supra, 283 N.J. Super. at 450.                      Consequently, "proscribed

speech must be uttered with the specific intention of harassing

the listener."         Ibid.     See also State v. Fin. Am. Corp., 182

N.J. Super. 33, 36-38 (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, 562 U.S. 443, 452, 131 S. Ct. 1207, 1215, 179

L. Ed. 2d 172, 181 (2011) (quoting Connick v. Myers, 461 U.S.

138, 145, 103 S. Ct.               1684, 1689, 75            L. Ed. 2d 708, 718-19

(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, 485

U.S. 46, 55-56, 108 S. Ct. 876, 881-82, 99 L. Ed. 2d 41, 51-53

(1988)     (reviewing        an    advertisement           parody     caricature      of     a

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

Claiborne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409,

3424, 73 L. Ed. 2d 1215, 1234 (1982) ("Speech does not lose its

protected character, however, simply because it may embarrass

others."); Hess v. Indiana, 414 U.S. 105, 107-108, 94 S. Ct.

326,      327-29,    38     L.     Ed.     2d    303,      305-07     (1973)    (allowing

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

Keefe, 402 U.S. 415, 415-20, 91 S. Ct. 1575, 1576-78, 29 L. Ed.

2d   1,    3-6    (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,       403

U.S. 15, 20, 91 S. Ct. 1780, 1783-86, 29 L. Ed. 2d 284, 291

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

"Fuck the Draft"); Garrison v. Louisiana, 379 U.S. 64, 77-79, 85

S. Ct. 209, 217-18, 13 L. Ed. 2d 125, 134-35 (1964) (rejecting

view defamatory speech could be punished based on motives of the

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

Chicago, 337 U.S. 1, 2-3, 69 S. Ct. 894, 895, 83 L. Ed. 1131,

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, 549

N.E.2d 1166, 1168 (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, 536 F.2d 237, 239 (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
