SNOW HILL — A Berlin man, arrested in September for brandishing a replica handgun at a large crowd gathered on the side of Coastal Highway, was found guilty on all charges following a jury trial this week.
It took a Worcester County jury all of about four minutes on Wednesday to find Justin Hess, 31, of Berlin, guilty of all charges including second-degree assault and reckless endangerment for the incident during the unsanctioned H2Oi event in September. The incident was characterized by prosecutors as the “poster child” for the problems associated with this event weekend. The Worcester County State’s Attorney’s Office was able to get convictions on all but one count on Hess including second-degree assault and reckless endangerment, despite having no named victims or witnesses in what was a somewhat unique case.
According to the facts of the case, just before midnight on Sept. 29, 2017, traffic was bumper-to-bumper on Coastal Highway with hundreds of spectators gathered along the sidewalks to watch the thousands of automobiles in town for the event. Hess stopped his truck in the middle of the crowded Coastal Highway and confronted a crowd along the sidewalk on Trimper Avenue near the convention center.
“He got out of his truck and walked toward the crowd gathered behind the fence and shoved one unidentified man, inciting a fight,” said Interim Worcester County State’s Attorney William McDermott. “When the man whom Hess shoved came around from behind the fence, Hess pulled a handgun from his waistband and brandished it at the crowd.”
What happened next was predictable, according to McDermott.
“Here you have a huge crowd gathered along the sidewalk with bumper-to-bumper traffic basically at a standstill and tensions are already high,” he said. “Then, you have a suspect brandishing a handgun at the large crowd and panic ensues. People are running everywhere including Coastal Highway and shouting ‘he has a gun’ and it’s just mayhem.”
With the crowd dispersing, Hess then got back in the truck and headed south. Undercover Ocean City Police Department (OCPD) officers on the scene did what they were trained to do and stayed with the gun, according to McDermott. Hess was eventually pulled over at 33rd Street and taken into custody without further incident.
The weapon he brandished during the incident turned out to be a replica 9mm BB gun. Hess was charged initially with reckless endangerment, disorderly conduct and possession of a replica handgun, a violation of a town of Ocean City ordinance. However, when the Worcester County State’s Attorney’s Office got the replica handgun as evidence, prosecutors added the assault charge for a variety of reasons, according to McDermott.
“First of all, the replica BB gun was as close to the real thing as I have ever seen,” he said. “The fact that Mr. Hess brandished this gun at a large crowd and basically incited a riot led us to add the assault charge. Secondly, because the undercover officers stayed with the gun and followed Hess, and because of the panic that ensued, no victims or witnesses were identified.”
In terms of the reckless endangerment charge, McDermott’s case presented at trial on Wednesday focused on the panic element of the incident and not necessarily the brandishing of the gun at the crowd. Reckless endangerment requires the actions that cause the risk of injury or death to others. Basically, because the crowd panicked and ran in every direction including into a crowded Coastal Highway during the mobbed H2Oi event, those individuals were put at risk of injury or worse.
As far as the second-degree assault charge, getting a conviction was challenging because there were no victims or witnesses identified. Because the undercover officers “stayed with the gun” and pursued Hess during what they believed at the time to be potentially real active shooter incident, no officers remained behind to take statements from witnesses and victims.
“That certainly created some challenges, but there is some case law for getting an assault conviction without a victim,” said McDermott. “At trial on Wednesday, we basically had the two undercover officers who pursued Hess and stayed with the gun, but no other witnesses or victims. Despite that, we were able to get a conviction on the assault charge.”
The jury deliberated about four minutes before returning with guilty verdicts on all counts including second-degree assault, reckless endangerment, disorderly conduct and possession of a replica handgun. The only count on which Hess was not guilty was an open container citation because he was not the only occupant of the truck.
McDermott said a long-form pre-sentence investigation was ordered because Hess has a pending case in District Court and an extensive criminal record. He called the case unique and interesting because of its many facets.
“He is the poster child for H2Oi and all of the things that event creates in Ocean City,” he said. “Everything about this case is topical and relevant to that larger discussion about that event.”
