STATE OF NEW JERSEY v. DAVID K. BOTTERBRODT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2352-08T42352-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID K. BOTTERBRODT,

Defendant-Appellant.

__________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-01264-I.

Christopher C. Cona, attorney for appellant.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant David K. Botterbrodt was convicted of third degree terroristic threats, N.J.S.A. 2C:12-3a, and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Judge John T. Kelly imposed concurrent two-year probationary terms, with the following conditions: no contact with the victim; attendance at anger management meetings; and maintenance of verifiable full-time employment. We affirm.

This is a summary of the State's proofs. Lydell Giddens testified that on the evening of October 13, 2007, he and his brother, Victor Giddens, drove to the residence of Harry Eichman, defendant's neighbor. As they started walking towards Eichman's house, Lydell saw defendant standing outside his front door staring at them. Defendant said, "[y]ou fucking n * * * s got a problem?" Lydell responded, "[w]ho the fuck are you talking to . . . what the fuck is your problem?" According to Lydell, defendant "kept calling us n * * * s." After Lydell told defendant to shut his mouth, defendant went to his porch, retrieved a chainsaw and "just started pulling it." Defendant came toward him with the chainsaw, which was turned on, saying, "[y]ou fucking n * * * s are gonna get buried and chopped up today." Defendant was yanking at Lydell's motorcycle coat and moving the chainsaw, which was turned on, back and forth "up the side of my face like he was gonna cut me with it." Although defendant never "made contact" with Lydell, the chainsaw came within only two to three inches of his face.

Lydell was "very scared" and just "froze in one spot" during this encounter. He was afraid if he moved, defendant "was gonna end up getting me with it."

Lydell acknowledged that he and defendant were "cursing back and forth." He denied threatening defendant and neither he nor Victor had any weapons. According to Lydell, the encounter occurred "right in the street." Lydell denied ever being on defendant's property.

According to Lydell, the incident ended when he challenged defendant to put down the chainsaw "and do something about it if you feel that you're . . . all man[.]" Defendant put down the chainsaw, walked back to his house and obtained a shovel, with which he threatened to bury Lydell and Victor. Lydell had never met defendant before this incident.

Clementon Police Sergeant James Laub testified that upon his arrival at the scene, he spoke with both defendant and Lydell. Defendant admitted that he had retrieved his chainsaw during a verbal dispute.

Victor testified. He essentially corroborated his brother's testimony.

Defendant testified that he was on his front porch when three individuals approached defendant's home from Eichman's property. The three individuals were Lydell, Victor and Eichman. Defendant and his family had numerous problems with Eichman prior to this incident. According to defendant, Eichman had tried to provoke him into a physical confrontation in the past. A heated discussion arose between defendant and Giddens. Expletives were exchanged. Giddens threatened defendant's life and stepped onto defendant's property. Defendant asked Giddens to take his hand out of his pocket. Defendant feared that Giddens could have a weapon.

Defendant feared for his life and that of his wife and child. Defendant picked up his chainsaw from his porch and started it. Defendant intended to scare off Giddens.

On appeal, defendant contends:

A. PURSUANT TO N.J.S.A. 2C:3-4, [DEFENDANT] WAS ENTITLED TO USE WHATEVER FORCE WAS NECESSARY TO PROTECT HIMSELF AND HIS FAMILY.

B. THE COURT ERRED BY EXCLUDING EVIDENCE WHICH SUPPORTED THE DEFENSE THEORY OF THE CASE.

We reject these arguments.

First, we note that although the confrontation was unpleasant, Judge Kelly's findings rejected the defense of self-defense. Second, the findings by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, it is not for us to revisit the trial count's findings if these are supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Second, the judge properly excluded evidence of a subsequent incident between defendant and Eichman pursuant to N.J.R.E. 404(b).

 
Affirmed.

(continued)

(continued)

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A-2352-08T4

July 2, 2010