CONCORD — The N.H. Supreme Court has upheld the conviction of a Belmont man who threatened two Wal-Mart employees in Tilton in 2010 because he thought they were Jewish.
Paul Costella was convicted after a jury trial in 2013 in the Belknap County Superior Court of two counts of criminal threatening and one count of disorderly conduct. He was sentenced to 12 months in jail — an extended term of punishment because of the N.H. hate crime statute.
The case began on November 29, 2010 when Costella went into the Walmart in Tilton for an oil change. While driving his car into the service bay, one of the victims noticed a photograph of Costella and his daughter standing in front of a red flag with a swastika. In the photo Costella and his daughter were performing a "Heil Hitler" salute.
The woman told Costella she could refuse service to someone with whom she was uncomfortable and Costella asked her if she was Jewish. She replied "what's it to you" or something like that and Costella told her that not enough Jews were killed during WWII. He also asked if she saw his "Jew killing gun" in the car.
The oil change was completed and a second employee returned Costella's car to him while the female victim processed his paper work. When she told him her uncle had been burned alive by the Nazis, he told her that he hoped "that Jew bastard" suffered when he died.
As he left, he said to no one in particular that he was going to his car to get the gun to kill the Jew bitch behind the counter.
When the store manager overheard the conversation he came over and Costella asked him if he was Jewish. The manager didn't respond and Costella said he was going to kill "both you Jews." He restated he had a "Jew killing gun."
The manger called police and Costella was charged with two counts of criminal threatening and disorderly conduct. The N.H. Belknap County Attorney decided to seek enhanced penalties under the hate crime statute and gave Costella notice.
Costella argued that Judge James O'Neill erred when he didn't dismiss the case as a hate crime because the state couldn't prove that either of the two victims were Jewish.
He argued that the hate crime statute (RSA 651:6, I(f)) was only applicable if the state could prove beyond a reasonable doubt that his actions were motivated by their actual religion.
The court relied on a U.S. Supreme Court ruling regarding a Wisconsin hate crime statute as one the singles out bias-inspired conduct because this conduct is thought to inflict greater individual and social crime. The U.S. ruling said bias-motivated crimes are more likely to provoke retaliatory crimes and incite community unrest.
"The specific community here resulting from a hate crime flows from the defendant's bias-motivated actions, rather than the victim's actual status as a member of a protected class," wrote N.H. Supreme Court Associate Justice James Bassett in his opinion.
"Society is harmed by a bias-motivated crime regardless of whether the victim is, in fact, a member of the protected class the defendant has targeted," he continued.
The court also ruled it would be "absurd" for the state to conclusively prove any victim was a member of a specific protected class, asking rhetorically what evidence a jury would use to prove that a person was Jewish or Native American or of mixed race for example.
The court determined that the state had to prove only that Costella was sufficiently motivated to commit the crime because of his hostility toward what he perceived to be the victim's religion.
The four other N.H. Supreme Court justices concurred with the ruling.
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