STATE OF NEW JERSEY v. RICHARD T. VAN HISE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2115-07T42115-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD T. VAN HISE,

Defendant-Appellant.

______________________________________

 

Submitted March 23, 2010 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-08-1256.

Yvonne Smith Segars, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent

(Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Van Hise appeals from his conviction and sentence for resisting arrest and assaulting a police officer. We affirm.

Defendant was indicted on five third-degree charges: (1) aggravated assault of his wife, N.J.S.A. 2C:12-1b(7); (2) aggravated assault of a police officer with injury inflicted, N.J.S.A. 2C:12-1b(5)(a); (3) criminal restraint of his wife, N.J.S.A. 2C:13-2a; (4) resisting arrest, N.J.S.A. 2C:29-2a(3)(a); and (5) making a terroristic threat, N.J.S.A. 2C:12-3a.

From the evidence at trial, the jury could find the following facts. On March 16, 2006, Florence Township police responded several times to defendant's home to investigate noise complaints. At 9:10 p.m., the police spoke to defendant's wife and left. Twenty minutes later, they received another noise complaint.

Officers James Ford and Mauro Correnti arrived at defendant's home on the second complaint at 9:45 p.m. They heard yelling and screaming from an upstairs window. Then they saw defendant's wife run out the back door "out of control" and without clothes. Defendant, also naked, went after his wife and pulled her back into the house. As the officers got to the door, they saw defendant's wife on the floor on her back and defendant straddled on top of her with one hand over her mouth and the other on her throat or upper chest pinning her down. The police ordered defendant to get off his wife several times, but defendant did not comply. The officers then pulled defendant off and attempted to arrest him.

Defendant physically resisted the officers' attempts to handcuff him by stiffening his arms and refusing to put them behind his back, and a scuffle ensued in the kitchen. After being forcibly handcuffed, defendant continued to yell, curse, and scream, and he kicked one of the officers in the groin. The officers threw him to the ground, and he struggled and kicked his legs while they subdued him.

The officers took defendant outside, but he became combative again and fought their attempts to seat him in a police car. He kicked an officer again and continued verbally berating the officers. Inside the police car, defendant ranted and flailed about and eventually kicked out a side window.

While being processed at the police station and transported to county jail, defendant made verbal threats, including a threat to kill one of the officers after his release from custody. A few minutes after that threat, defendant apologized and said he did not mean it.

Video recordings from the dashboards of the police cars, and audio recordings made from the officers' communication devices, were used in examination of the officers and played for the jury. The State also introduced in evidence photographs of defendant's wife taken the day after the arrest displaying injury to her face. However, defendant's wife refused to testify or otherwise cooperate with the police.

Defendant testified in his defense. He said on the date of the incident, his wife called him at work extremely upset and said that DYFS (the Division of Youth and Family Services) had just removed their two children from their home. Defendant went home immediately and, over the next two hours, drank a bottle and a half of tequila with his wife. When the police came to his home a second time, his wife suddenly ran outside. He followed and pulled her back into the house because he did not want her to be arrested. He testified he was highly intoxicated at the time of the incident and had no recollection of resisting arrest, kicking the officer, or making a verbal threat.

At the close of evidence, the court granted defendant's motion to dismiss the third count, criminal restraint of the wife, on the ground that the State had not presented sufficient evidence for it to be considered by the jury. The court denied defendant's motion to dismiss other counts.

The jury acquitted defendant of aggravated assault of his wife and making a terroristic threat against a police officer. It found him guilty on count four, third-degree resisting arrest, and a lesser-included offense under count two, fourth-degree aggravated assault of a police officer without injury. The court sentenced defendant to five years in prison with two years without parole eligibility on the charge of resisting arrest and a concurrent term of eighteen months in prison on the charge of aggravated assault.

On appeal, defendant argues the following points:

POINT I DEFENDANT'S CONVICTIONS FOR AGGRAVATED

ASSAULT OF A LAW ENFORCEMENT OFFICER AND RESISTING ARREST ARE AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED BECAUSE THE DEFENDANT'S INTOXICATION NEGATED ANY INTENT TO CAUSE BODILY INJURY TO OFFICER CORRENTI OR TO RESIST ARREST (Not Raised

Below).

POINT II THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER AND RESISTING ARREST CHARGES.

POINT III DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN

REFUSING TO REDACT THE PRESENTENCE REPORT TO

EXCLUDE INFORMATION REGARDING THE TERRORISTIC THREATS FOR WHICH DEFENDANT WAS ACQUITTED.

POINT V THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.

We reject Point I, the convictions being against the weight of the evidence, because defendant did not make a motion for a new trial after the jury's verdict. Under Rule 2:10-1, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." See State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Furthermore, the merits of that issue do not warrant reversal for the same reasons that we reject defendant's Point II, arguing that he was entitled to a judgment of acquittal.

Defendant contends the undisputed evidence established his high state of intoxication and no rational jury could conclude that he had the requisite state of mind for conviction of the crimes charged. We disagree.

On a motion for a judgment of acquittal:

the trial judge must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

On appeal, we apply the same standard of review. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); State v. Moffa, 42 N.J. 258, 263 (1964). In this case, there was sufficient evidence to prove beyond a reasonable doubt that defendant had the requisite state of mind for conviction.

We start with settled law that voluntary intoxication is not a defense to a criminal charge unless it negates an element of the offense. N.J.S.A. 2C:2-8a; State v. Cameron, 104 N.J. 42, 51 (1986). The charge of aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a), requires that defendant have acted purposely or knowingly. The charge of resisting arrest, N.J.S.A. 2C:29-2a, requires that defendant have acted purposely. In this case, the trial court correctly instructed the jury on the statutory definitions of purposely and knowingly under N.J.S.A. 2C:2-2b. The court also instructed the jury that the State had the burden of proof on the state of mind element of each offense and that the jury could take into consideration defendant's intoxication in evaluating proof of his state of mind.

In Cameron, supra, 104 N.J. at 53-56, the Court discussed the level of intoxication necessary to find that a defendant lacked the ability to act purposely and knowingly. Citing the history of the defense of intoxication through earlier case law, the Court confirmed "prostration of faculties" as the familiar "shorthand expression" to describe the defense and the degree of intoxication that would negate the requisite state of mind. Id. at 56. Here, the trial court's charge to the jury followed the dictates of Cameron.

The court instructed the jury:

You may consider the evidence as to the defendant's consumption of alcoholic beverages in determining whether he was intoxicated to such a degree that he was incapable of acting purposely or knowingly. Therefore, once there is some evidence of defendant's intoxication, the State must prove beyond a reasonable doubt that such intoxication did not render the defendant incapable of acting purposely or knowingly.

. . . .

In considering the question of intoxication, you should carefully distinguish between the condition of mind which is merely excited by intoxicating drink and yet capable of acting with purpose or knowledge as opposed to the condition in which one's mental faculties are so overcome as to deprive one of his will to act and ability to reason thereby rendering a person incapable of acting and thus preventing the person from committing the crime charged with the mental state required of either purposely or knowingly.

. . . .

If after considering all the evidence you have a reasonable doubt whether defendant's intoxication was such as to render him incapable of acting purposely or knowingly, you must acquit him of any or more [sic] of those crimes that require either purposeful or knowing action.

Defendant does not allege error in the charge but contends that a rational jury could only conclude from the evidence that defendant did not act purposely or knowingly in kicking the officer or resisting arrest.

The jury heard the testimony of the officers and defendant and also viewed and heard recordings of some of defendant's actions. Defendant testified that he was highly intoxicated but did not present any medical or similar testimony to establish the degree of his intoxication. It was also apparent from the evidence at trial that defendant was sufficiently aware of what was occurring to remember the reason for his drinking, his annoyance at the police for coming to his home, and the reason for going after his wife and pulling her back into the house. At sentencing, the trial court commented that defendant's memory seemed to lapse only when he could not excuse or explain his actions.

The jury could infer from all the evidence that defendant acted purposely in resisting the officers' attempts to arrest and transport him and that he kicked one of the officers two or three times with intent to cause injury to the officer. We reject defendant's argument that he was entitled to a judgment of acquittal because of his intoxication.

Defendant also challenges his sentence as excessive. He alleges the trial court punished him for rejecting the State's plea offer and electing to stand trial, the trial court violated his rights by considering evidence that he made a terroristic threat to kill one of the officers even though he was acquitted of that charge, and the court erroneously refused to apply certain mitigating factors that should have reduced the severity of his sentence.

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.

We reject defendant's argument that the trial court imposed a more severe sentence on defendant because he exercised his constitutional right to stand trial. At the sentencing hearing, the court used the word "bonus" in reference to the State's four-year plea offer, but that comment was in response to defense counsel's argument that the plea offer implied defendant's sentence should not be greater. The court did not punish defendant for standing trial by sentencing him to five years with a two-year period of parole ineligibility. In fact, the court indicated the reason for the five-year sentence was that defendant had been sentenced to four years' imprisonment for similar crimes in 2001, and it was appropriate to sentence him to a longer term for a repeat offense. That decision of the trial court was not error and not an abuse of the court's sentencing discretion.

Next, defendant argues that the court erred in taking into consideration and refusing to delete from the presentence investigation report facts regarding the charge of terroristic threats, on which he was acquitted by the jury. We find no error.

The presentence report contained a narrative of the offense circumstances including allegations of threats defendant made to the police officers. In response to defense counsel's application at the sentencing hearing that those allegations be deleted because the jury acquitted him of count five, the court stated:

[H]e was not convicted of these things. He was not convicted of any crime for having done those things, but I saw with my own eyes and I heard with my own ears the things that he was doing and saying.

And I think for purposes of my making a determination as to an appropriate sentence on these two charges which involve his relating to police officers, I think that what happened as the events continue to unfold is highly relevant to my making an appropriate determination.

Now, I will put on the record that I am not in any way treating those facts as convictions of anything because they are not convictions. But I think it I think those events help to place help to create an entire context for this case.

In effect, the court stated that defendant's conduct, which was recorded and witnessed directly by the court, was relevant to determining his intent and purpose in resisting arrest and assaulting an officer. It was also relevant to application of aggravating and mitigating factors under N.J.S.A. 2C:44-1. Defendant was not penalized for making a threat against an officer, the charge of which he was acquitted. Had that charge never been brought, the information directly observed by the sentencing judge would have been relevant and admissible on the issue of an appropriate sentence on the charges of resisting arrest and aggravated assault.

With respect to the court's balancing of aggravating and mitigating factors, the court found applicable three aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Defendant's prior record showed three indictable convictions, including for similar offenses as in this case, and eight municipal court convictions. That record amply supported the sentencing court's findings as to aggravating factors.

The court found mitigating factor eleven applicable, that defendant's imprisonment would cause hardship to his children, N.J.S.A. 2C:44-1b(11), because the children would be deprived of defendant's employment income and financial support as a result of his imprisonment. Defendant argues that the court erred in failing to find mitigating factors one, three, four, eight, and nine applicable. N.J.S.A. 2C:44-1b(1), (3), (4), (8), and (9).

A sentencing court is not required to reject explicitly "each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 608-09 (2010). "It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision." Ibid. (citing State v. Pillot, 115 N.J. 558, 565-66 (1989)). In this case, the trial court expressly stated its reasons for rejecting most of the mitigating factors argued by defendant.

Mitigating factor one, that defendant's conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1b(1), was rejected because the grading of the offenses of conviction did not anticipate more serious harm than actually occurred or was threatened by defendant's conduct. Mitigating factor three, that defendant acted under strong provocation, N.J.S.A. 2C:44-1b(3), was properly rejected because neither the police nor DYFS had provoked defendant into his criminal conduct.

Mitigating factor four was also inapplicable, that substantial grounds existed to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1b(4). Intoxication is generally not available as a mitigating factor. See State v. Deluca, 325 N.J. Super. 376, 392 (App. Div. 1999), aff'd as modified, 168 N.J. 626 (2001); State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

Finally, mitigating factor eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8), was clearly inapplicable because of defendant's extensive history of similar offenses and his inability to control his anger, his drinking, and his hostility to the police.

The trial court having explained its reasons for rejecting the mitigating factors proposed by defendant, and those reasons being fully supported by the competent credible evidence in the record, see Bieniek, supra, 200 N.J. at 608, we conclude there was no sentencing error in application of aggravating and mitigating factors under the Criminal Code.

Overall, the trial court did not commit any error or otherwise abuse its discretion in sentencing defendant.

Affirmed.

 

We have not received a pro se brief.

The transcript of the sentencing hearing does not include a reference to mitigating factor nine, the character and attitude of the defendant indicate that he is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9). With the finding of aggravating factor three, that defendant was likely to commit another offense, mitigating factor nine was clearly inapplicable.

(continued)

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A-2115-07T4

July 9, 2010