- Associated Press - Friday, September 12, 2014

CONCORD, N.H. (AP) - In a decision involving what’s known as New Hampshire’s “hate crime statute,” the state Supreme Court on Friday upheld the convictions and sentence of a man who made anti-Semitic comments to employees at a Tilton Wal-Mart in 2010.

Paul Costella received a 12-month jail sentence in 2013 after he was convicted of two counts of criminal threatening.

According to court records, Costella was getting his car serviced at the Wal-Mart. He became angered after an employee took offense to a picture in the vehicle showing him and his daughter standing before a large swastika, their arms raised in a “Heil Hitler” salute. The employee’s uncle, a member of the French resistance, had been killed by Nazis.

According to court records, Costella asked the employee if she was a Jew and then went on an anti-Semitic rant directed at her and at a store manager. He mentioned he had a gun underneath his seat.

Prosecutors asked for an enhanced sentence, citing a law that targets offenses driven by “hostility towards the victim’s religion, race, creed, sexual orientation … national origin or sex.”

Costella appealed, saying the statute was misapplied. His lawyer, Stephanie Hausman, argued on appeal that the statute requires the state to prove the victims’ actual religion. Costella said neither employee actually said whether they were Jewish.

Hausman did not immediately return a call seeking comment Friday.

Prosecutors said the state is required only to prove a person was motivated to commit the crime because of hostility against a protected class - in this case, members of the Jewish faith - not that the victim was actually a member of that class.

The court, in its unanimous opinion, agreed with the state, but said it found the statute itself ambiguous based on the interpretations from both sides. It based its decision partly on legislative history, and on statutes in other states and in New Hampshire.

The court noted that if it were to interpret the hate crime statute to require the state to prove a victim’s religion, race, creed, or national origin, “an absurd result could follow because every prosecution under the statute would require a trial within a trial. How would a jury determine a victim’s race, creed or religion? What evidence would a jury consider in order to determine whether a victim is Jewish? Would a jury consider how often a victim attends a synagogue, or whether one or both of a victim’s parents were Jewish, or whether the victim’s grandparents were Jewish?”

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