STATE OF NEW JERSEY IN THE INTEREST OF D.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2218-05T42218-05T4

STATE OF NEW JERSEY

IN THE INTEREST OF

D.D.,

A Juvenile.

 
________________________

Submitted: June 6, 2006 - Decided June 29, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Burlington County, FJ-03-2271-04.

Yvonne Smith Segars, Public Defender, attorney for appellant D.D. (Jodi L. Ferguson, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Jason D. Saunders, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

D.D., a juvenile, appealed from an adjudication of delinquency for an offense that would constitute fourth-degree aggravated assault under N.J.S.A. 2C:12-1b(5)(d), if committed as an adult. In an unpublished opinion issued on July 12, 2005 (A-1263-04), we held there was "ample evidence in the record to sustain the judge's factual conclusion that the juvenile's conduct was reckless in that she 'consciously disregard[ed] a substantial and unjustifiable risk' to the teacher when she brought her arm back and pulled away or attempted to push the teacher away. N.J.S.A. 2C:12-1a(1); N.J.S.A. 2C:2-2b(3)."

There was testimony by the teacher that he had stiffness in his jaw for about a day after D.D. struck him. The trial judge, however, initially made no finding that the juvenile caused bodily injury to the teacher, as is a required element for a conviction for assault under the statute, N.J.S.A. 2C:12-1a(1). Accordingly, we remanded for findings with respect to whether the victim of the alleged assault suffered "injury" as that term is understood under N.J.S.A. 2C:12-1.

On remand, the trial judge noted that the teacher did not experience any pain or redness, seek medical treatment or take any medication after being struck in the jaw by the juvenile's elbow. The teacher, however, testified he did experience tightness in his jaw over the next day. The judge made the following express finding: "Given the victim's obvious disinclination to exaggerate, the [c]ourt finds entirely credible his contention that, even into the next day, he manifested a physical consequence from the blow to his jaw." The trial judge concluded that the tightness in the victim's jaw, which was not merely transitory, was sufficient discomfort to constitute injury under the statute. See N.J.S.A. 2C:11-1a (defining bodily injury as "physical pain, illness or any impairment of physical condition"); State in the Interest of S.B., 333 N.J. Super. 236, 244 (App. Div. 2000) (physical discomfort, as well as pain, as that word is commonly understood, is sufficient to constitute bodily injury); N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (not much is required to show bodily injury for prosecution for simple assault); State v. Downey, 242 N.J. Super. 367, 371 (Law Div. 1988) (a stinging sensation caused by a slap during a verbal confrontation was sufficient to constitute the requisite pain). The court thus reaffirmed its prior conclusion that the juvenile had committed an aggravated assault upon her teacher.

On appeal, D.D. argues that tightness in the victim's jaw is insufficient pain to constitute bodily injury for a conviction for assault under the statute. She emphasizes the absence of any redness or marks on the teacher's face and his statement that he was not injured. We disagree. The juvenile was angry and defiant when the incident occurred, so her elbow struck the victim's jaw with some degree of force. The victim's jaw was stiff twenty-four hours later. Thus, the victim felt the impact of the juvenile's arm and the impact had repercussions and caused discomfort. We conclude the record supports the trial judge's finding of a qualifying bodily injury sufficient to satisfy the low-threshold simple assault requirement of N.J.S.A. 2C:12-1a(1). We therefore affirm the adjudication of delinquency of aggravated assault under N.J.S.A. 2C:12-1b(5)(d) (committing a simple assault upon a teacher engaged in the performance of his duties).

Affirmed.

 

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4

A-2218-05T4

RECORD IMPOUNDED

June 29, 2006