STATE OF NEW JERSEY v. RICHARD LEONCINI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2595-04T42595-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD LEONCINI,

Defendant-Appellant.

_______________________________________

 

Argued February 8, 2006 - Decided August 15, 2006

Before Judges Stern, Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Indictment No. 03-04-0523.

Stephen P. Hunter, Assistant Deputy

Public Defender, argued the cause for

appellant (Yvonne Smith Segars, Public

Defender, attorney; Mr. Hunter, of counsel

and on the brief).

Daniel L. Bornstein, Deputy Attorney

General, argued the cause for respondent

(Zulima V. Farber, Attorney General, attorney; Mr. Bornstein, of counsel and on the brief).

PER CURIAM

Defendant Richard Leoncini appeals from a final judgment of conviction. A jury found defendant guilty of stalking, a crime of the fourth degree, N.J.S.A. 2C:12-10b. He was sentenced to a term of eighteen months with a nine-month term of parole ineligibility. The judge also restrained defendant from having any contact with the victim, Officer Thomas Behrens of the Stafford Township Police Department or the Department, except in an emergency situation, N.J.S.A. 2C:12-10.1, and he imposed a $50 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF penalty. The judgment of conviction was entered on November 2, 2003.

Defendant filed a motion for leave to appeal as within time on January 28, 2005. We reserved decision and directed the parties to brief that issue as part of this appeal. We now grant leave to file as within time in accordance with the Supreme Court's decision in State v. Molina, ___ N.J. ___, ___ (2006) (slip op. at 14-15) (establishing standard to be applied prospectively).

The case requires us to consider the elements of stalking. Defendant contends that the jury instruction did not adequately explain the State's obligation to prove that he purposely or knowingly engaged in a course of conduct that would cause a reasonable person to fear bodily injury or death. He did not raise the issue at the time of trial. Because the charge, read as a whole, conveyed the essential elements of the crime, we affirm. R. 2:10-2.

Officer Behrens met defendant long before the incidents upon which this stalking charge was based when he responded to calls about disputes between defendant and C.K., who was defendant's girlfriend at the time. Behrens gave C.K. information about legal options that might be available to her. Defendant complained that the officers were interfering. In Behrens' opinion, when C.K. subsequently ended her relationship with defendant, defendant blamed Behrens and other officers of his department.

In December 2002, six or seven years after C.K. and defendant separated, Behrens received a call from defendant. Defendant identified himself. Behrens recognized defendant's voice and hung up the phone because he thought he knew why defendant was calling and felt that there was no reason to have a conversation with him.

Within days, Behrens received a voicemail from defendant, which he did not save. Defendant continued to leave messages, and Behrens preserved those messages. After the third or fourth message, Behrens told his supervisor about the calls. Behrens received and recorded a total of six messages. He did not respond or tell defendant to stop calling. Based on the content of the messages and his prior experiences with defendant, Behrens believed that defendant posed a threat to him.

The first preserved voicemail message was left on December 12, 2002, at 10:30 a.m.:

Hey Tom, haven't seen you in a long time. How's everything been? Listen, you give out any more tickets to you know who, you're gonna have to ahh say thank god Allah's here to save ya's. See you later.

Behrens interpreted the reference to Allah as threatening, but, other than that, he had "no idea" why defendant mentioned Allah.

Defendant left the second voicemail message on December 17, 2002, at 6:12 p.m.:

Hey Tom, how ya doing? Haven't talked to you in a long time. Ahh. . . Question . . We got smart guns passed now, so now we're gonna have guns smarter than people that use them. Ahh. . . Listen. . . I got that can of ether Richard was talking about one of your buddies that you sent up here.

Umm. . . thinking I'm gonna use it. Anyway, see you later. You have a nice holiday.

Behrens found that message alarming because of its reference to guns and what he perceived as a threat to use one against him.

Defendant left the third voicemail message on December 17, 2002, at 6:43 p.m.:

Yeah. Hey Tom that's a good job for you. You always knew best which child should live and which child should die. Maybe I'll see you in the after-life Tom.

Behrens, who was then assigned to juvenile matters, interpreted the references to children living and dying and the after-life as a threat.

Defendant left the fourth voicemail message on December 19, 2002, at 7:32 a.m.:

Hey Tom. I finally figured out something I can do. I'm gonna open up bunch of abortion clinics nationwide. I picked out a name for (th)em. Baby killer international. I even have a voice recording of my ahh. . . answering machine. . . it's going to be I gave up my baby for you. How[']s that? See you later Tom.

Behrens interpreted that message as defendant's blaming him for not having a child with C.K.

The fifth message which defendant left on December 19, 2002, at 3:14 p.m. was unremarkable.

The sixth message was left on December 21, 2002, at 8:03 p.m.:

Hey. Mr. Behrens. Long time no hear from. Mr. Leoncini. How you doing? Just wishing you Christmas cheer and all that good stuff. Unfortunately I don't have any family to be buying any presents for this year. But ahh. . . just hoping everything (i)s going okay for you. Catch you around some other time. Take it easy.

Behrens took that message as another indication that defendant blamed him for not having a family.

Defendant admitted making the phone calls. He also acknowledged that he blamed Behrens for C.K.'s decision to abort a child defendant had fathered. In defendant's view, C.K. made the decision because she was having an affair with the officer at the time.

Defendant acknowledged that Behrens could have interpreted one message as a threat. He explained that in 2001, when an officer from a different police department asked if he had ether and knew how to use it to take his own life, he took that question as a message from Behrens. He called Behrens in 2002 to let him know that he had received the warning.

On appeal, defendant claims that the jury instruction omitted an element of the offense. Specifically, he contends that the jurors would not have understood that the State was required to prove that he purposely or knowingly engaged in a course of conduct that would cause a reasonable person to fear bodily injury or death. Because defendant did not object at the time of trial, our review is for plain error. R. 2:10-2. Under that standard, our courts recognize that "'failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel.'" State v. Burgess, 154 N.J. 181, 186 (1998) (quoting State v. Federico, 103 N.J. 169, 176 (1986)). We consider the charge as a whole and for the purpose of determining how the jurors would understand the instructions given the evidence before them and the circumstances of the trial. State v. Savage, 172 N.J. 374, 387-88 (2002). Applying this standard of review, we conclude that the trial court's charge, "while not a paragon of clarity," apprised the jurors of all of the essential elements of stalking. See State v. Masino, 94 N.J. 436, 447 (1983).

The basic elements of stalking are stated in N.J.S.A. 2C:12-10b as follows:

A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.

In addition, N.J.S.A. 2C:12-10a defines the term "course of conduct" to include "repeatedly conveying . . . threats" and the term "repeatedly" to mean "on two or more occasions."

The foregoing definition of stalking must be read with N.J.S.A. 2C:2-2c(1), which provides a general rule for construction of the culpability elements in specific offense definitions. It provides that "[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears." N.J.S.A. 2C:2-2c(1). By operation of that general rule established in N.J.S.A. 2C:2-2c(1), a plain indication of purpose to limit application of the terms purposely or knowingly would be required to relieve the State of the obligation to prove that defendant was at least aware of the nature of his conduct -- i.e., its capacity to place a reasonable person in fear of bodily injury or death. We see nothing in N.J.S.A. 2C:12-10 that even suggests, no less plainly indicates, an intention to so limit application of the requisite culpability. The culpability elements and the conduct element, including its capacity to "cause a reasonable person to fear," are stated in one simple clause that is not interrupted by punctuation of any sort.

Two decisions of this court construing the culpability requirements of specific offenses in light of N.J.S.A. 2C:2-2c(1) are instructive. In State v. Mendez, 345 N.J. Super. 498, 507 (App. Div. 2001), aff'd, 175 N.J. 201 (2002), the court considered the scope of the culpability term "knowingly" in N.J.S.A. 2C:29-2b, which defines eluding. In pertinent part, N.J.S.A. 2C:29-2b provides: "[a person] who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring [a] vehicle . . . to a full stop commits a crime of the third degree . . . ." Relying on N.J.S.A. 2C:2-2c(1), we rejected defendant's argument that the Legislature's use of the term "attempt" indicated an intention to require proof of purpose and concluded that the prescribed culpability, "knowingly," applied to the conduct and circumstance elements of eluding. Id. at 508. In State v. Worthy, 329 N.J. Super. 109, 111 (App. Div. 2000), we construed "N.J.S.A. 2C:13-2, which provides in pertinent part that '[a] person commits a crime of the third degree if he knowingly: a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury . . . .'" Again relying on N.J.S.A. 2C:2-2c(1), we held "that the requisite mental state of 'knowledge' applies to all material elements of the offense, including the risk of serious bodily injury to the victim." Id. at 111, 115-16.

There is obvious similarity between the provisions of eluding and criminal restraint, which we construed in Mendez and Worthy, and the provision of the stalking statute at issue here. In each case, the terms describing the prohibited conduct, circumstance or result are stated in a single clause that "prescribes the kind of culpability" required. In each case, by operation of N.J.S.A. 2C:2-2c(1), the stated culpability term applies to all of the material elements because no contrary purpose plainly appears.

This court's decision in State v. Dixon, 346 N.J. Super. 126, 135-36 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), which was recently adopted by the Supreme Court in State v. Thomas, ___ N.J. ___, ___ (2006) (slip opinion at 22-23), is consistent with our decisions in Mendez and Worthy. In Dixon, we held that by separating the grading provision for eluding from the basic definition of the crime, the Legislature indicated its intention to apply the culpability term to the base elements of the offense but not to the element of risk creation that is relevant to grading. 346 N.J. Super. at 135-36 (rejecting a claim that proof of knowledge of risk creation was required by N.J.S.A. 2C:2-2c(3), which provides that the requisite culpability is "knowingly" where none is specified). There is no similar grammatical division between the elements of stalking at issue here. Thus, we agree with defendant that the State was required to establish that he "purposefully or knowingly engage[d] in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury [or death]." N.J.S.A. 2C:12-10b.

The Supreme Court's decision in H.E.S. v. J.C.S., 175 N.J. 309, 328-29 (2003), supports our reading of N.J.S.A. 2C:12-10b. In H.E.S., the Court described the elements of stalking as that crime was defined prior to its amendment effective March 12, 1999. Compare L. 1996, c. 39, 1 (prior definition of stalking) with L. 1999, c. 47, 1. The Court described the elements as follows:

1) defendant engaged in speech or conduct that was directed at or toward a person, 2) that speech or conduct occurred on at least two occasions, 3) defendant purposely engaged in speech or a course of conduct that is capable of causing a reasonable person to fear for herself or her immediate family bodily injury or death, and 4) defendant knowingly, recklessly or negligently caused a reasonable fear of bodily injury or death.

[H.E.S., supra, 175 N.J. at 329.]

The Court's statement of the third element does not suggest that "purposely" applies to some but not all of the terms included in the third element. See ibid. (stating that the 1999 amendment revised the "the mental culpability element . . . to "purposefully or knowingly" (emphasis added)).

The State suggests that the Legislature's purpose to limit application of the mental culpability terms "contrary" to the general rule established in N.J.S.A. 2C:2-2c(1) is "plainly" apparent from review of the legislative history. We resort to legislative history, however, only when the relevant statutes are unclear or ambiguous or it is apparent that the plain terms of the statute would lead to a result inconsistent with the Legislature's intention and purpose. See O'Connell v. State, 171 N.J. 484, 488 (2002). "A court may neither rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language." Ibid. (citing State v. Afanador, 134 N.J. 162, 171 (1993)).

It is important that we read N.J.S.A. 2C:2-2c(1) to give full effect to its salutary purpose, which was to eliminate ambiguity that would require judicial interpretation of the scope of culpability elements. That is the purpose of N.J.S.A. 2C:2-2c(1). As Commentary to N.J.S.A. 2C:2-2 explains the rule, it is designed to "assist in resolution of a common ambiguity in penal legislation, the statement of a particular culpability requirement in the definition of an offense in such a way that it is unclear whether the requirement applies to all the elements of the offense or only to the element that it immediately introduced." The New Jersey Penal Code Vol. II, Final Report of the N.J. Criminal Law Revision Commission, 46, cmt. 7 on N.J.S.A. 2C:2-2.

Accordingly, we conclude that the State was required to establish this element. Nonetheless, we do not agree with defendant's claim that the jury instruction delivered in this case failed to give adequate guidance explaining the scope of the purpose and knowledge requirement of N.J.S.A. 2C:12-10b. See Mendez, supra, 345 N.J. Super. at 510.

The trial judge commenced the charge to the jury with a reading of the indictment, which charged that defendant "did purposely or knowingly engage in a course of conduct directed at Thomas Behrens that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family." The judge then read the statute, which provides, "A person is guilty of stalking if he purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family, or to fear the death of himself or a member of his immediate family." The judge then explained:

In order for you to find the defendant guilty, the State must prove each of the following elements beyond a reasonable doubt:

One, that the defendant acted purposely --

the defendant purposely or knowingly engaged

in a course of conduct directed at a

specific person; two, that the defendant's

conduct was such that it would cause a

reasonable person to fear bodily injury or

death to himself or to a member of his

immediate family.

After reiterating that the first element required proof that defendant purposely or knowingly engaged in a course of conduct directed at a specific person, the judge defined the terms purposely and knowingly and the term "course of conduct." See N.J.S.A. 2C:12-10a. In defining purpose, the judge directed the jurors that they were required to find that defendant had the "conscious object to engage in conduct of that nature." See N.J.S.A. 2C:2-2b(1). In defining knowledge, the judge explained that the jurors were required to find that defendant was "aware that his conduct was of that nature." N.J.S.A. 2C:2-2b(2). The judge repeated that the State was required to establish that defendant's conduct was such that it would cause a reasonable person to fear bodily injury or death to himself or to a member of his immediate family. The charge was consistent with the model jury charges. Model Jury Charges (Criminal), Stalking (November 2001).

Although the trial judge could have informed the jury that it had to find that defendant was "aware" or "had a conscious object to engage in a course of conduct would cause a reasonable person to be in fear of bodily injury or death," we conclude that this requirement was reasonably conveyed. See Mendez, supra, 345 N.J. Super. at 510; N.J.S.A. 2C:2-2b(1)-(2). We fail to see how jurors could have concluded anything other than that the "nature of the conduct" referenced in the instruction referred to its capacity to create the requisite fear in a reasonable person. Our task is to determine how jurors would understand the "instructions as a whole," not how the charge could be understood if it were dissected and parsed. Savage, supra, 172 N.J. at 387-88.

There were no exceptions to the charge at the time, and we take that as an indication the defense viewed the instruction as we view it -- i.e., adequate to convey the essential elements of the crime. Moreover, during deliberations, the jurors asked the judge for a copy of the stalking statute. In response to that request, the judge re-read his prior instruction, including the plain terms of the statute, which links the requirements in plain language. Again there was no exception to the charge. We conclude that by informing the jury of its obligation to find that defendant purposely or knowingly engaged in a course of conduct directed at Behrens, explaining that the conduct had to be of a sort that would cause a reasonable person fear and explaining that the alternate culpability terms referred to the "nature of that conduct," the judge explained the issues the jury was required to decide in a manner that was not misleading. Cf. Worthy, supra, 329 N.J. Super. at 113 (holding that the court erred in failing to clarify an instruction that improperly limited the knowledge requirement to two of the three elements of criminal restraint).

We also note that there is evidence that the jurors understood their obligation to acquit defendant if they did not find, beyond a reasonable doubt, that defendant was aware that his conduct would place a reasonable person in fear of death or bodily injury. During deliberations, the jurors asked to hear again "testimony about or when [defendant] stated that Officer Behrens was or he [defendant] knew Behrens should have been scared."

For all of the foregoing reasons, we see no basis for reversal of this conviction on the ground that the jury instruction, read as a whole, failed to apprise the jurors of the essential elements of the offense or the State's obligation to establish them.

Affirmed.

 

This sentence is an amended sentence. The initial sentence included a parole ineligibility term of eighteen months.

We also fail to see how the legislative history supports that view of the statute. The State finds an indication of the Legislature's intention to dispense with culpability as to the capacity of the conduct to cause a reasonable person to fear in the 1999 amendment that eliminated the fourth element described by the Supreme Court in H.E.S. -- i.e., the element that required proof that the victim was actually placed in fear. L. 1999, c. 47, 1.

We view that amendment as having a different and distinct purpose. It simply eliminated the State's obligation to prove that the defendant actually placed the specific victim in fear. Compare L. 1996, c. 39 (prior definition of stalking) with L. 1999, c. 47, 1. While the 1999 law eliminated the State's obligation to prove that the intended victim was placed in fear, that element is irrelevant to the defendant's awareness of the nature of the conduct -- i.e., that it had the capacity to cause a reasonable person to fear. L. 1996, c. 39, 1; see Assembly Judiciary Committee Statement to Assembly Bill No. 2246, (1999) (noting that, under the 1996 law, a person could not be convicted unless repeated acts of threatening behavior actually placed the victim in reasonable fear; indicating the problems with that approach, and explaining that the bill would permit a finding of guilt if the person "purposely or knowingly engages in a course of conduct directed at a specific person that would case a reasonable person to fear").

(continued)

(continued)

17

A-2595-04T4

 

August 15, 2006