STATE OF NEW JERSEY v. JASON D. SHEPHERD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1791-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON D. SHEPHERD, a/k/a

JASON SHEPHERD,

Defendant-Appellant.

_______________________________

 

Argued August 10, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-12-02871-EDV.

John J. Zarych argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Zarych, on the brief).

Julie H. Horowitz, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Ms. Horowitz, on the brief).

PER CURIAM

Defendant Jason Shepherd appeals from a conviction for simple assault, N.J.S.A. 2C:12-1(a), entered following a three-day bench trial. The trial judge denied defendant's motions for entry of a judgment of acquittal or a new trial, imposed a one-year probationary sentence and ordered payment of applicable fines and assessments. Additionally, the judge ordered the forfeiture of defendant's weapons pursuant to 18 U.S.C.A. 922.

On appeal defendant argues:

I. BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE LOWER COURT'S DETERMINATION, THE COURT SHOULD REVERSE THE LOWER COURT'S DENIAL OF THE MOTION FOR A NEW TRIAL AND JUDGMENT OF ACQUITTAL.

II. BECAUSE THE VERDICT WAS IMPERMISSIBLY INCONSISTENT, THE COURT ERRED IN FAILING TO ACQUIT DEFENDANT.

Following our consideration of these arguments, in light of the record and applicable law, we affirm.

These facts are taken from the trial record. On August 10, 2008, defendant was involved in an altercation with his then fiancée, "Christine," and her minor sons E.M., age seventeen, and C.M., age fifteen. Christine testified defendant became angry after discovering C.M. broke his weight bench. Defendant told Christine their relationship was over and she and her sons must vacate the home. The argument accelerated. Defendant's attempt to punch Christine was blocked by E.M. A physical altercation then erupted between defendant and E.M., during which defendant struck E.M. After C.M. jumped on defendant's back to impede his ability to strike E.M., defendant tossed him to the ground. E.M. swung a step-stool in the course of the fight with defendant. Christine and her sons attempted to keep defendant, who was outside the residence, from reentering. The police were called.

When State Trooper John P. Hannigan arrived at the scene, he described defendant as "extremely angry, infuriated." He encountered Jason Shepherd, Jr., defendant's son, who appeared "bewildered." Entering the residence, Trooper Hannigan noted Christine appeared uninjured and C.M. was lying face down on the kitchen floor.

E.M.'s testimony mirrored Christine's, except he denied striking defendant. C.M. testified defendant punched him in the face and hit him with the step-stool.

Called as a witness for the defense, James Shepherd, defendant's father, related the events preceding the physical conflict. The parties had been visiting his home when the discovery of the broken weight bench occurred.

Jason, Jr. also testified regarding the events of August 10, 2008. He explained after he told his father C.M. broke the weight bench, E.M. threatened "to beat him up for snitching." Jason, Jr. stated Christine started "punching" his father, who held up his hands in defense. Next, E.M. "tackled" defendant, who pushed him away. C.M. jumped on defendant's back and grabbed his neck. Defendant and E.M. were fighting when E.M. grabbed the stool and swung it toward defendant, but instead struck C.M. in the head.

Defendant testified on his own behalf. He explained Christine struck him after he told her and her sons to leave his home. He raised his hands defensively and was grabbed by E.M. Defendant asserted that at that point he and his son were victimized in an "ambush-style attack" by Christine and her sons. They exited the residence and called police.

Initially, defendant was charged with the simple assault of Christine. He was later indicted on two counts of aggravated assault against E.M. and C.M. and one count of possession of a weapon (a metal stool) for an unlawful purpose. The indictment was amended to dismiss the weapons offense and downgrade the charges to two counts of simple assault.

Following a bench trial on the three simple assault charges, the court issued a written opinion. Rejecting some testimony of the State's witnesses as "not entirely credible" and crediting Jason, Jr.'s testimony, the court determined defendant had "squared-off" and fought with E.M. but had not struck Christine or C.M. The trial judge convicted defendant of the simple assault of E.M. and acquitted him of the alleged assaults of Christine and C.M.

When a trial judge has taken testimony and evaluated the credibility of witnesses in a criminal trial resulting in a conviction, our scope of review of the judge's findings of fact is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999); see also State v. Elders, 192 N.J. 224, 243 (2007). We "limit our review of those findings and recommendations to a consideration of whether they are supported by sufficient credible evidence in the record[.]" State v. Chun, 194 N.J. 54, 88-89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Arthur, 184 N.J. 307, 320 (2005). Such findings are entitled to our deference. See State v. Adams, 194 N.J. 186, 203 (2008); Elders, supra, 192 N.J. at 243. In other words, we may not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Locurto, supra, 157 N.J. at 471.

Identifying conflicts and contradictions among the complaining witnesses' statements, defendant contends the trial court failed to properly assess the evidential testimony in concluding he assaulted E.M. Defendant argues the court erred by "develop[ing] a completely different theory as to what occurred inside the residence on August 10, 2008." Additionally, he suggests the court's limited credibility assessments of Christine, E.M. and C.M. preclude a finding of guilt beyond a reasonable doubt and warrant entry of acquittal. We are not persuaded.

A person is guilty of the disorderly persons offense of simple assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) Negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

[N.J.S.A. 2C:12-1(a).]

Notwithstanding the contradictions regarding the unfolding events as described by Christine, E.M. and C.M., the three related defendant's assaultive conduct toward E.M. Defendant admitted he pushed E.M. across the floor. Moreover, Jason Jr., who was credited by the trial judge, testified that defendant "pushed [E.M.] and he flew underneath the table."

The trial court determined that when defendant confronted Christine he was "still angry and enraged" regarding the destruction of his gym equipment. The court considered defendant's "behavior in the events leading up to the assault and his continuing violence in smashing windows and trying to break down the door" after he was ejected from the home to conclude "defendant recklessly caused the injuries suffered by [E.M.] when he engaged [him] in a fight."

Viewing all of the attendant circumstances, we determine the evidence establishes defendant's use of physical force caused bodily injury to E.M., constituting simple assault. The trial court's findings are supported by sufficient credible evidence sustaining the conviction beyond a reasonable doubt. We conclude no miscarriage of justice occurred. State v. Perez, 177 N.J. 540, 555 (2003).

Defendant next contends the court erred in denying his motion for judgment of acquittal on the assault of E.M., as it is inconsistent with the acquittal of the assaults of Christine and C.M. We disagree.

In deciding a motion for a judgment of acquittal, the trial judge must review the sufficiency of the evidence and determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967). The trial judge must determine whether the State has presented sufficient evidence, when viewed in its entirety and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, to enable a finder of fact to determine the essential elements of the offense beyond a reasonable doubt. State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975); see also R. 3:18-1; State v. Martin, 119 N.J. 2, 8 (1990); Reyes, supra, 50 N.J. at 458-59. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Perez, supra, 177 N.J. at 555.

To the extent defendant argues the verdicts were inconsistent, it has long been recognized that consistency is not required as long as the evidence supporting the particular charge is sufficient to convict the defendant beyond a reasonable doubt. State v. Lopez, 187 N.J. 91, 102 (2006) (internal quotations omitted). Here, the State provided sufficient evidence from which a rational factfinder could find E.M.'s injuries resulted from defendant's assault, yet C.M.'s injuries resulted from E.M.'s misdirected swings of the step- stool. Accordingly, the verdicts are not inconsistent and the court properly denied the motion.

Affirmed.

 

The informality in identifying the State's witnesses is designed to avoid confusion as she has the same initials as one of her sons.

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A-1791-09T4

August 24, 2010