STATE OF NEW JERSEY v. KEVIN HUDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5739-07T45739-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN HUDSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 10, 2010 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1466.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the briefs).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant Kevin Hudson was convicted of: third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), as a lesser included offense of second-degree aggravated assault (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count five); third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count six); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven). On count four, the judge imposed an extended term sentence of seven years imprisonment, subject to a three and one-half year parole ineligibility term. On counts five, six and seven, the judge imposed a five-year term of imprisonment on each count, subject to a two and one-half year parole ineligibility period, each count to run concurrent to the others and concurrent to count four.

On appeal, defendant raises the following claims:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT.

II. FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

III. THE PROSECUTION'S INTRODUCTION INTO EVIDENCE OF INADMISSIBLE HEARSAY CONCERNING THE CAUSE OF THE VICTIM'S INJURIES CONTAINED IN A REDACTED HOSPITAL REPORT ADMITTED AS A BUSINESS RECORD INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHTS AND DENIED HIM A FAIR TRIAL. (Not Raised Below).

IV. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR CRIMINAL RESTRAINT.

V. FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF FALSE IMPRISONMENT DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

VI. THE TRIAL COURT'S INSTRUCTIONS ON TERRORISTIC THREAT [SIC] FAILED TO CONVEY A SUFFICIENT DEFINITION OF THE OFFENSE, DENYING DEFENDANT A FAIR TRIAL. FURTHERMORE, THERE WAS INSUFFICIENT EVIDENCE FOR A CONVICTION UNDER SUBSECTION b. (Partially Raised Below).

VII. THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

VIII. DEFENDANT'S ACQUITTAL OF FOURTH DEGREE UNLAWFUL POSSESSION OF A WEAPON PRECLUDED HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below).

IX. THE CONVICTION FOR TERRORISTIC THREAT [SIC] SHOULD HAVE BEEN MERGED WITH THE COUNT ON AGGRAVATED ASSAULT, AND THE SENTENCE WAS MANIFESTLY EXCESSIVE.

We reject each of these contentions and affirm defendant's conviction and sentence.

I.

The events charged in the indictment arise from an incident that began on the evening of February 6, 2006. On that night, Gillian Renaud was at a laundromat near her apartment when defendant, her boyfriend of approximately five years, entered the laundromat and demanded Renaud give him money because he was "stressed out" and needed money to buy cigarettes. When Renaud told him she had no money other than the quarters she was using for the laundry, defendant left.

After finishing the laundry, Renaud returned to the apartment she shared with defendant and her infant son. When defendant again angrily demanded money, Renaud told defendant to "leave [her] alone." Defendant responded by throwing a plate to the floor, where it shattered, and a shard cut Renaud's foot. After seizing Renaud's remaining coins and her cell phone from her pocketbook, defendant pushed the television off its stand and onto the floor. When Renaud began to cry because of the gash on her foot, defendant shoved a plastic bottle filled with coins against her injured foot and said, "[y]ou crying for that? You crying for that? . . . You have all that mouth, you going to cry for that?" Defendant then stormed out.

Fearful of defendant's escalating anger and what else he might do, Renaud picked up the telephone to call police, but the phone line was dead. She then decided to walk to a nearby gas station to use the pay phone, and while walking she "kept looking around to see if anyone was behind [her] because [she] was . . . real scared." Ultimately, Renaud decided not to call the police because she feared police would not reach her in time if defendant "came around."

Shortly after Renaud returned to the apartment, defendant arrived. He repeatedly demanded she tell him why she went to the Exxon station and whether she had called police. Each time, she told him she had not done so and she asked him to leave her alone. Defendant became even more angry and shoved Renaud down on the bed. While angrily demanding that she tell him why she was at the Exxon station, defendant held a black object against Renaud's neck, which she believed was a knife because "it felt cold." After Renaud told him that she "only got a drink" at the Exxon station, defendant said, "don't mess with me . . . because I can just cut you, cut your jugular vein and just leave you right here . . . to die." As defendant said that, he plugged the telephone into the jack and said, "you woman enough, here, call the cops."

As soon as defendant left the bedroom, Renaud locked the door because "[defendant] was acting real crazy." After hearing the door being locked, defendant started banging on the door and ordered Renaud to unlock it. Renaud remained frightened and was anxious to see if defendant had left the apartment or had calmed down. Consequently, over the course of the night, she emerged from the bedroom, ostensibly to discard soiled diapers. Her real purpose was to find out whether defendant had left the apartment. He had not.

In the morning of February 7, 2006, while Renaud was preparing to leave for work, defendant instructed her to call the hospital where she worked and tell her supervisor she would not be at work that day. When asked whether she could have refused to do what defendant instructed, Renaud answered, "I wasn't going to say no. He was already mad. I didn't want to make him any angrier."

Renaud believed that if she could find an excuse to depart the apartment, and leave defendant by himself, he might calm down. She dressed her son and told defendant she was taking the baby to his pediatrician, but defendant did not believe her. He said in an accusatory tone, "you're lying." He removed the baby's hat and coat and told Renaud he would not permit her to take the baby outside. All the while, defendant repeatedly asked her whether she was leaving the apartment "to go to the police." Each time he asked her the question, she remained silent.

According to Renaud, "that's when he grabbed me by the neck and started choking me and he said, 'I'm going to ask you again, are you going to the police?'" At that point he began to apply so much pressure to her neck that it became difficult for her to breathe. According to Renaud, "all of a sudden" the violence escalated and defendant began punching her in the face and "just keep on hitting me." Defendant punched her in the face "four or five times," so hard she could no longer see out of her right eye. When asked whether she was able to defend herself or block his punches, Renaud answered, "[n]o, because he was on top of me. I couldn't get my hands loose." When Renaud cried out "why are you doing this," defendant suddenly stopped and said he was sorry.

At that point, the telephone rang. By looking at the caller identification defendant realized Renaud's friend Telia Smith was calling. Defendant instructed Renaud to answer the phone and tell Telia she had fallen down and injured herself and wanted Telia to take her to the hospital.

At some point, Renaud passed out. She woke up to find her son touching her face and defendant telling her to hold a towel on her head. By the time Smith arrived at the apartment, defendant had left. Seeing a large quantity of blood on the bed, Smith asked Renaud what had happened to her, and Renaud related the events of the past two days. Renaud told Smith that defendant had "held [her] hostage . . . because he wouldn't leave and [she] was afraid to leave." Smith's testimony corroborated Renaud's description of her injuries and described how the apartment looked when she arrived.

Upon Renaud's arrival at Riverview Hospital, the emergency room physicians closed the gaping wound near her right eye by applying fifteen stitches. The medical records admitted in evidence established that Renaud had sustained a right orbital fracture, loss of consciousness, double vision, a concussion, and a large hematoma. The State also presented the testimony of Detective Kenneth Kleinman of the Eatontown police department, who had interviewed Renaud in the emergency room. He described her right eye as "swollen shut" and "bruised severely." Kleinman also saw dried blood "on her body."

Renaud's cousin, Tracey Anderson, visited her in the hospital. While Anderson was there, defendant called Anderson on her cell phone. She asked defendant whether he had seen what he "did to [Renaud's] face." Anderson described his response as follows: "he knew it, and he gave me the explanation that he was trying to talk to her . . . and she wouldn't listen to him."

Upon discharge, Renaud's physician scheduled her for surgery, but because of childcare and transportation problems, Renaud canceled it. Her efforts to reschedule were unsuccessful because the surgeon told her too much time had passed and her only alternative was "to wait to see if the eyeball will drop to do the surgery." During her testimony, Renaud read to the jury a letter defendant wrote six months later in which he said, "I'm sorry" and admitted he had made "a big mistake." At the conclusion of her testimony, Renaud showed the jury the scar near her right eye.

Defendant rested without calling any witnesses and without taking the stand. Prior to closing arguments, the State and defense counsel examined Renaud's medical records "line-by-line" to redact any "unnecessary hearsay" that would unfairly prejudice defendant. Defense counsel advised the judge that in light of those redactions, he had no objection to the medical records being admitted in evidence. Defendant made a motion for acquittal on each of the counts charged in the indictment, which the judge denied in its entirety.

On June 5, 2007, at the conclusion of the trial, Judge Cleary charged the jury on aggravated assault by causing serious bodily injury as well as the lesser included offense of aggravated assault by causing significant bodily injury, terroristic threats, criminal restraint, possession of a weapon for an unlawful purpose and unlawful possession of a weapon, using the model jury charge for each. During her instruction on terroristic threats, the judge explained that "[t]here are two separate statutes involving terroristic threats" and proceeded to instruct the jury on each. In particular, Judge Cleary explained that a person is guilty if he either "threatens to commit any crime of violence with the purpose to terrorize another or in reckless disregard of the risk of causing such terror" or "threatens to kill another . . . with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it would be carried out."

The jury returned a verdict acquitting defendant of second-degree aggravated assault by causing serious bodily injury, but convicting him of the lesser included offense of third-degree aggravated assault by causing significant bodily injury. The jury also convicted defendant of terroristic threats, criminal restraint, and possession of a weapon for an unlawful purpose. The jury acquitted him of unlawful possession of a weapon.

At the time of sentencing, the judge found three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. After concluding that defendant's prior record satisfied the standards for imposition of an extended term of imprisonment as a persistent offender, and that she was clearly convinced the aggravating factors substantially outweighed the non-existing mitigating factors thereby justifying the imposition of a parole ineligibility term, the judge imposed the sentence we have described.

II.

We turn first to Points I and IV in which defendant argues, respectively, that the evidence was insufficient to support his conviction for aggravated assault in count four and for criminal restraint in count six. He asserts that the judge therefore erred when she denied his motion for a judgment of acquittal on those two counts. As Rule 3:18-1 and State v. Reyes, 50 N.J. 454, 458-59 (1967), make clear, a judge is obliged to deny a defendant's motion for acquittal unless, giving the State the benefit of all favorable inferences that a reasonable jury could draw, the jury would be unable to find guilt on the charge beyond a reasonable doubt.

As to count four, we need not decide whether the judge erred in denying defendant's motion for acquittal on the second-degree aggravated assault charge, because the jury found defendant not guilty. That issue is therefore moot.

As to count six, which charged criminal restraint, the evidence was more than sufficient to establish that defendant restrained Renaud "unlawfully in circumstances exposing [her] to risk of serious bodily injury," and thereby violated N.J.S.A. 2C:13-2(a). The State's evidence established that by taking Renaud's cell phone and disconnecting the telephone in the apartment, defendant prevented Renaud from calling police or anybody else who could aid her. Moreover, he beat her severely, thereby exposing her to the risk of serious bodily injury, and he sat in the living room of the apartment for most of the night preventing her from leaving. He again prevented her from leaving the next morning, when he instructed Renaud to call her employer to say she would not be coming to work. Under those circumstances, the evidence more than satisfied the standard articulated in Reyes, thereby justifying the judge's denial of defendant's motion for a judgment of acquittal on count six.

We thus reject the claims defendant advances in Points I and IV.

III.

In Points II and V, defendant contends the judge committed reversible error by failing to sua sponte charge the jury on two lesser included offenses. In particular, in Point II, he maintains he was entitled to a jury instruction on simple assault as a lesser included offense of second-degree aggravated assault; and in Point V, he maintains he was entitled to a jury instruction on false imprisonment as a lesser included offense of criminal restraint.

Because defendant did not request a jury instruction on either of those lesser included offenses, we will reverse on such ground only if "the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). However, this obligation does not require the trial court to "meticulously sift through the entire record in every . . . trial to determine if some combination of facts and circumstances might rationally sustain a [lesser included offense] charge." State v. Purnell, 126 N.J. 518, 540-41 (1992). Moreover, because defendant did not object to the charge at the time it was given, there is a presumption that the charge was not error and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333 (1971). Therefore, we will not reverse on this ground unless the judge's failure to instruct the jury on a lesser included offense "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

So viewed, we reject defendant's claim that the judge was obliged to instruct the jury on the lesser included offense of simple assault. The uncontroverted evidence presented at trial demonstrated that defendant beat Renaud so severely as to cause a right orbital fracture, temporary vision loss and a laceration to her face that required fifteen stitches. Although she never underwent surgery, her physician concluded such surgery was necessary to correct the damage to her eye socket. These injuries are considerably more severe than those typically held to constitute the mere "bodily injury" required for a conviction on a charge of simple assault under N.J.S.A. 2C:12-1(a). "Bodily injury" is defined in N.J.S.A. 2C:11-1(a) as mere "physical pain, illness or any impairment of physical condition."

Additionally, for a jury instruction on simple assault to have been required, defendant must establish that a reasonable jury is likely to have acquitted him on the lesser included offense that the judge did provide to the jury, namely third-degree aggravated assault by causing significant bodily injury. Significant bodily injury is defined in N.J.S.A. 2C:11-1(d) as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." In light of the undisputed testimony and medical records establishing that Renaud sustained a temporary loss of consciousness and a temporary loss of vision as a result of the blows defendant inflicted, we reject defendant's contention that a reasonable jury would have been likely to acquit on the charge of third-degree aggravated assault by causing significant bodily injury and convict on a lesser included charge of simple assault. Under those circumstances, the judge did not err by failing to sua sponte instruct the jury on simple assault. We therefore reject the claim defendant presents in Point II.

We turn to Point V, in which defendant maintains that the judge's failure to sua sponte instruct the jury on false imprisonment as a lesser included offense of criminal restraint denied him a fair trial. A defendant is guilty of false imprisonment if "he knowingly restrains another unlawfully so as to interfere substantially with his liberty." N.J.S.A. 2C:13-3. The Court in State v. Savage, 172 N.J. 374 (2002), described the difference between criminal restraint and false imprisonment by stating:

False imprisonment is complete upon an unlawful restraint that interferes with a victim's liberty. No further wrongful purpose is required. The difference between false imprisonment and third-degree criminal restraint is that the latter requires that the restraint be "in circumstances exposing the other to risk of serious bodily injury."

[Id. at 400 (quoting N.J.S.A. 2C:13-2(a)) (internal citations omitted).]

In Savage, the Court held that the defendant's action of kicking the victim while the victim was being beaten by another individual did not warrant a charge of false imprisonment because no rational jury could find that this action did not expose the victim to a risk of serious bodily injury. Id. at 401.

The present appeal is similar to Savage. Here, while confining Renaud to the apartment, defendant punched her in the eye five times and choked her to the point she could barely breathe. His confinement of Renaud clearly put her at risk of serious bodily injury. No rational jury could find defendant's actions constituted a mere unlawful restraint with no further wrongful purpose. As the evidence did not clearly indicate that defendant was entitled to a charge on the lesser included offense of false imprisonment, the judge was not obliged to issue it. Jenkins, supra, 178 N.J. at 361. We therefore reject defendant's contention in Point V that the judge was required to charge the jury on the lesser included offense of false imprisonment.

IV.

In Point III, defendant maintains that the judge erred by admitting Renaud's medical records, which contained hearsay, into evidence as a business record. A patient's statements as to the cause of his or her injuries are generally excluded as hearsay. Cestero v. Ferrera, 57 N.J. 497, 501 (1971). Where such hearsay statements are included in an otherwise admissible hospital record, the proponent of the evidence is required to exclude only the inadmissible hearsay statements and not the entire medical record. Ibid. Decisions of a trial judge admitting or excluding evidence are reviewed for an abuse of discretion. State v. Barden, 195 N.J. 375, 390-91 (2008). Our scope of review widens, however, when the court misconceives or misapplies the applicable law. In such circumstances, our review is de novo. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). However, even if the judge made an error in admitting Renaud's medical records, because defendant did not object, we will not reverse on grounds of hearsay unless the error was clearly capable of producing an unjust result. R. 2:10-2.

Defendant argues that the hospital records contain inadmissible hearsay and points to several examples in his brief. However, the medical records contained in defendant's appendix are not the set of records admitted in evidence at trial. Those are set forth in the State's appendix. Within the latter set of records, the only statements to which defendant points as inadmissible hearsay are the following:

"Her former boyfriend came and beat her up."

"The patient asked to be moved to another facility for security and safety."

"She was at her home when she was beaten up by a former boyfriend, who is the father of her baby, who is 1-year-old."

"The patient is a 35 year old right handed woman who was assaulted yesterday morning by her boyfriend."

As is evident, defendant's principal objection to the medical records admitted in evidence is Renaud's assertion in those records that she was assaulted by defendant.

While these references to assault as the cause of Renaud's injuries were inadmissible hearsay in accordance with Cestero, supra, 57 N.J. at 501, these errors were not "clearly capable of producing an unjust result," R. 2:10-2, in light of defense counsel's statements at trial. Defendant's strategy at trial was to concede that he assaulted Renaud, but to deny that this assault had resulted in serious bodily injury. In his opening, defense counsel stated "there was an altercation. And Ms. Renaud was injured[.]" Further, in closing, defense counsel stated:

Now, why has the State failed to prove its case beyond a reasonable doubt? Well, I told you during my opening, it was the second sentence out of my mouth, I told you that [defendant] hit Gillian Renaud. And I would never stand here and try to condone that or justify that. As a matter of fact I stand here and tell you that was wrong. What [defendant] did that day was wrong.

But I also told you during my opening that he did not commit the offense of aggravated assault. And we stand by that. . . .

In this indictment the State is charging [defendant] with causing serious bodily injury, and we disagree with that with all our heart and with all our soul; what he caused was significant bodily injury.

[(Emphasis added).]

Thus, because defendant conceded that he did, in fact, assault Renaud, the mere mention of an assault, without any further details, in the medical records admitted in evidence was not clearly capable of producing an unjust result and does not warrant reversal.

Furthermore, defense counsel evaluated the records with the prosecutor and agreed that the redactions excluded any inadmissible hearsay. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Because defense counsel agreed that the records submitted did not contain any inadmissible hearsay prejudicing defendant, and because the mention of defendant's assault of Renaud in the record was consistent with defendant's theory of the case, the admission of the records into evidence was not an error clearly capable of producing an unjust result. We therefore reject the claim defendant advances in Point III.

V.

In Point VI, defendant argues that the judge's instruction to the jury on terroristic threats failed to convey a sufficient definition of the offense, thereby denying him a fair trial. He also maintains that the evidence was insufficient to support a conviction on that charge. Each argument is meritless. Suffice it to say, viewing the evidence in the light most favorable to the State, as the Reyes standard requires, a reasonable jury could find that defendant held a knife to Renaud's neck, while threatening to slash her jugular vein and leave her to die. Such evidence is more than sufficient to establish defendant's guilt on the crime of terroristic threats under subsection b of the statute, which requires proof that a defendant threatened to kill another person, the threat was made with the purpose of putting the victim in imminent fear of death, and the threat was made under circumstances that reasonably caused the victim to believe that the threat was likely to be carried out. N.J.S.A. 2C:12-3(b). Therefore, the State's proofs were more than sufficient to survive defendant's motion for a judgment of acquittal, and the judge did not err when she denied it.

Turning to the jury charge, we are satisfied that, contrary to defendant's assertions, the State's proofs were neither confusing nor complicated. Under those circumstances, there was no need for the judge to mold the jury instruction to the facts produced at trial. State v. Morton, 155 N.J. 383, 422 (1998) (holding that "[w]hen measured by the plain error standard, even cases involving more complex determinations do not necessarily require an intricate explication of the facts" and that defendant's defense, which did not require the jury to distinguish between several mental states, did not require a molded jury charge). Moreover, the jury instruction Judge Cleary provided was entirely correct. She properly explained there were two different subsections in the terroristic threats statute and she provided a thorough and correct instruction as to each. Defendant's claims to the contrary are meritless. We thus reject both portions of the argument defendant raises in Point VI.

VI.

In Point VII, defendant maintains that the cumulative

effect of all of the errors denied him a fair trial. As there were no errors, much less cumulative errors, we need not address this claim.

VII.

In Point VIII, defendant argues that his acquittal on the fourth-degree charge of unlawful possession of a weapon in count eight precluded his conviction for third-degree possession of a weapon for an unlawful purpose in count seven. Stated differently, he maintains that the inconsistent verdict entitled him to a judgment of acquittal on count seven. Defendant relies upon our opinions in State v. Mieles, 199 N.J. Super. 29, 41 (App. Div.), certif. denied, 101 N.J. 265 (1985), and State v. Peterson, 181 N.J. Super. 261 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982). However, in State v. Grey, 147 N.J. 4, 11-12 1996), the Court abrogated the approach adopted in Mieles and Peterson by endorsing the federal Dunn/Powell rule when it held that inconsistent verdicts do not automatically require reversal. Consistency is not required because the jury is entitled to evaluate each count of an indictment on its own merits. State v. Banko, 182 N.J. 44, 53 (2004). So long as there is sufficient evidence to support the defendant's conviction for the charge at issue, that conviction will be upheld even if it is facially inconsistent with the jury's not guilty verdict on a related count. Ibid.

In light of Banko and Grey, the inconsistent verdicts in counts seven and eight do not entitle defendant to a judgment of acquittal on count seven. There was ample evidence in the record to support the jury's finding in count seven that defendant knowingly possessed a knife for an unlawful purpose, namely to terrorize Renaud. We thus reject the claim defendant advances in Point VIII.

VIII.

We turn to Point IX, in which defendant argues that his conviction for terroristic threats in count five should have been merged with his conviction for aggravated assault in count four. In Point IX, he also maintains the sentence imposed was excessive. We turn first to his merger argument. N.J.S.A. 2C:1-8 defines the circumstances under which one offense merges into another. The statute provides:

When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

(1) One offense is included in the other . . . .

[(N.J.S.A. 2C:1-8(a)).]

An offense is considered to be included in another when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" N.J.S.A. 2C:1-8(d)(1).

Where the elements of the offenses and the facts supporting them differ, a defendant is not entitled to merger. State v. Adams, 227 N.J. Super. 51, 62 (App. Div.), certif. denied, 113 N.J. 642 (1988). Even when offenses arise out of the same overall sequence of events, merger is not required if the offenses arise out of distinct segments of the incident in question. State v. Truglia, 97 N.J. 513, 521-22 (1984).

Although the offense of terroristic threats can merge with aggravated assault, State v. Doss, 310 N.J. Super. 450, 462 (App. Div.), certif. denied, 155 N.J. 589 (1998), these two offenses should not merge in the present case, where each offense arose out of a separate and distinct event during the February 6-7, 2006 incident. Indeed, each offense was proven by entirely different facts and each offense occurred on different days. Defendant's conviction for terroristic threats arose out of his actions on February 6, when he held a knife to Renaud's throat and threatened to cut her jugular vein. Defendant's conviction for aggravated assault arose from his February 7 beating of Renaud. Under those circumstances, merger was not required. Truglia, supra, 97 N.J. at 521-22.

Defendant also contends that his sentence was manifestly excessive. His argument rests solely on the judge's failure to find any mitigating factors when there was "ample basis in the record to find mitigating factors 3, 4, 5, 6, and 11." We note that other than discussing defendant's remorse, the only mitigating factor defendant advanced at sentencing was his willingness to pay restitution, which is mitigating factor six.

While we agree with defendant's contention that a judge is required to find the existence of any mitigating factor present in the record, State v. Dalziel, 182 N.J. 494, 504 (2005), we disagree with his contention that these mitigating factors were present.

The first mitigating factor defendant alleges is applicable is three: "[t]he defendant acted under a strong provocation." N.J.S.A. 2C:44-1(b)(3). The only possible "strong provocation" defendant discusses was Renaud "turning her back [on defendant] and ignoring him." There is no evidence in the record that Renaud provoked defendant, and, in fact, the evidence supports the conclusion that Renaud did the opposite because when defendant harassed her, she ignored him or asked him to leave her alone. This hardly amounts to strong provocation, and the judge certainly did not err by failing to sua sponte find this mitigating factor.

Defendant also contends the judge was required to find the existence of mitigating factor four, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). He argues in his brief that he was "stressed out." He also contends that because he was behaving differently than usual, "[a]t the very least . . . [this] indicated severe depression [and] . . . was a signal of other serious mental health issues contributing to his lack of anger management." He maintains that the judge was obliged to order a psychological examination pursuant to N.J.S.A. 2C:44-6.

This argument is completely without merit. No evidence was presented at trial that defendant was suffering from a mental illness at the time of his assault on Renaud, and there was no indication that he had ever suffered from such an illness. Nor did defendant present such an argument to Judge Cleary. Instead, his attorney confined his argument to the claim that the incident was "a family situation that went bad" and "two people who were very much in love became discombobulated and now the State's involved." That defendant was "stressed out" or that he was angrier than usual does not establish that he was suffering from a mental illness. Therefore, the judge did not err by failing to sua sponte find mitigating factor four and in not ordering a psychological evaluation.

Defendant also alleges that mitigating factor five, "[t]he victim of the defendant's conduct induced or facilitated its commission," applies. N.J.S.A. 2C:44-1(b)(5). This argument borders on being outright offensive. To suggest that by refusing to give defendant her coins, and by being evasive when asked if she had called police, that Renaud somehow deserved what defendant did to her is to present a legal argument that no court should ever accept. The judge had no obligation to find mitigating factor five.

As to mitigating factor six, that defendant "compensated or will compensate" the victim for any damage or injuries she sustained, N.J.S.A. 2C:44-1(b)(6), there was no evidence presented that defendant had the ability to pay restitution. Under those circumstances, Judge Cleary properly rejected mitigating factor six.

We likewise reject defendant's contention that the judge was obliged to find mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). Defendant has not established who would suffer hardship from his imprisonment, as one of the letters he sent to Renaud while incarcerated contained his offer to surrender his parental rights to his son. Under those circumstances, the judge did not err by failing to sua sponte find mitigating factor eleven. Thus, we perceive no Dalziel violation here, as the record did not remotely support any of the mitigating factors to which defendant points. Moreover, we are satisfied that the sentence Judge Cleary imposed represents a well-reasoned and proper exercise of the sentencing discretion afforded her by State v. Roth, 95 N.J. 334, 364-65 (1984). We have been presented with no meritorious basis to disturb the wholly appropriate sentence she imposed.

 
Affirmed.

With the exception of count eight, on which defendant was acquitted, the remaining counts pertained to a different victim. The judge severed those counts by order of February 9, 2007.

If the possible hearsay statements at issue in this case were testimonial statements made by unavailable declarants, such as a doctor, an issue might be raised as to their admissibility. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). However, no such issue has arisen here, where any potential hearsay within the admitted medical records can be attributed to Renaud, who testified at trial.

Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932); United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).

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A-5739-07T4

May 21, 2010