STATE OF NEW JERSEY v. SALVADOR GUAVARA 14, 2011 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5792-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALVADOR GUAVARA,

Defendant-Appellant.

___________________________________________________________

October 17, 2012

 

Submitted December 14, 2011 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

06-10-9971.

Joseph E. Krakora, Public Defender, attorney

for appellant (Stephen W. Kirsch, Assistant

Deputy Public Defender, of counsel and on the

brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

On January 14, 2009, a jury convicted defendant Salvador Guavara of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon (the same knife), N.J.S.A. 2C:39-5(d) (count four). After merging count two into count one and count four into count three, the trial court imposed a nine-year prison term on count one with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to a concurrent four-year term on count three. Appropriate statutory penalties and assessments were also imposed.

Defendant presents the following arguments on appeal:

POINT I

 

THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION ON THIRD-DEGREE "SIGNIFICANT BODILY INJURY" AGGRAVATED ASSAULT WAS CLEARLY INDICATED BY THE RECORD; MOREOVER, THE PORTION OF THE SECOND-DEGREE AGGRAVATED-ASSAULT STATUTE WHICH ADDRESSES THE ACTUAL CAUSING OF SERIOUS INJURY SHOULD NOT HAVE BEEN INSTRUCTED TO THE JURY BECAUSE, AT WORST, SUCH INJURY WAS MERELY ATTEMPTED, NOT CAUSED. (NOT RAISED BELOW)

 

A. THE FAILURE TO CHARGE THIRD-DEGREE "SIGNIFICANT BODILY INJURY" AGGRAVATED ASSAULT AS A LESSER-INCLUDED OFFENSE.

 

B. THE STATE'S PROOFS DID NOT SUPPORT A JURY INSTRUCTION ON THE ACTUAL CAUSING OF SERIOUS BODILY INJURY.

 

POINT II

 

THE MATTER SHOULD BE REMANDED FOR MERGER AND RESENTENCING.

 

After considering these arguments in light of the record and the applicable law, we have concluded that the jury was properly instructed, and we affirm defendant's conviction for second-degree aggravated assault. However, we remand for merger and resentencing.

Lillian Fuentes grew up in poverty in Honduras. She has known defendant since she was "a little girl," and defendant provided her with money to travel to the United States. Fuentes arrived in Texas in September 2005, and from there traveled to Plainfield, New Jersey, where she shared a room with defendant in a three-bedroom apartment. Javier Rivera, William Romero, and Jose Romero also resided in the apartment.

Fuentes was employed in Jersey City, from 4:00 p.m. until midnight, Monday through Friday, and defendant was a construction worker from 6:00 a.m. to 5:00 p.m. on the same days. Fuentes testified defendant was "jealous of everybody," and he frequently accused her "of being with somebody."

Defendant was not at the apartment when Fuentes arrived home from work at approximately 1:00 a.m. on Saturday, July 1, 2006. She went directly to the room she shared with defendant and "found everything in disarray." Fuentes was in the kitchen washing her lunch box when defendant came home. She testified defendant was "very drunk," and he accused her of "seeing the other guy." She said defendant told her to "get into the [bedroom]," but she refused. Defendant then grabbed her by the hair and demanded she "give [him] money." Fuentes testified that when she told defendant she did not have any money, he "grabbed the knife and plunged it right here into me."1

Fuentes then ran to Rivera's bedroom for help, and defendant ran from the apartment. The police were called, and Officer Adam Green from the Plainfield Police Department responded. When Green arrived at the apartment, he observed that Fuentes "had a stab wound with the knife still impaled in her abdomen." Green testified Fuentes was "very distraught," "crying," and "shaky." Green had experience as a first responder for the Plainfield Rescue Squad and, based on his training, had Fuentes transported to the trauma center at the Robert Wood Johnson Hospital in New Brunswick.

Green also went to the hospital and obtained the knife after it was removed from the victim. At trial, Green estimated the knife had a three-and-one-half inch blade.

Dr. Craig Rezac, a board-certified surgeon, examined Fuentes when she arrived at the hospital. Rezac testified the knife was still "in her abdomen," but surgery was not required because the knife had not penetrated her abdominal wall. Rezac also testified:

I actually could feel the tip of the knife or the blade of the knife underneath her skin, so what had happened was the angle was not sharp enough to have gone into the abdomen. I gave some local anesthesia so I could explore the wound, saw that the fascia, which is the strength layer or the layer of tissue that closes the abdominal contents, inside the belly was not violated. We then sent her for a CAT scan to confirm my findings, and that ruled out internal injury, we observed her, and then discharged her.

 

On cross-examination, Rezac testified that Fuentes did not sustain a life-threatening wound. However, he also testified that if the knife had entered the victim's body at a different angle, it could have pierced her abdominal wall and caused serious injury to her vital organs.

In his opening statement, defense counsel told the jury that it was "an unfortunate accident" and Fuentes only sustained a "superficial" wound:

[T]here was no serious damage, and you need to keep that in mind because you're going to be hearing terms like purposeful, you're going to hear terms like knowingly, you're going to hear terms like substantial injury, you're going to hear impairment and loss of organs, things of that nature. None of that happened. This was an accident. It's an unfortunate accident but it's an accident.

 

. . . .

 

You'll hear evidence about a wound but it was superficial. It was an accident. It was a bad accident, it was [an] unfortunate accident, but it was an accident.

 

In his summation, defense counsel emphasized that Fuentes only sustained "a small little wound":

[The knife] never entered the abdomen. It never nicked any organs. It never nicked any veins, no subcutaneous bleeding. There was no damage to any of the veins. There was no damage to any of the organs. There was no damage to anything inside other than the skin and the fat layer in between.

 

We had no serious risk of death and we know that because they released her the next day . . . . There was no impairment of any organ in her body, not one single organ . . . . There was no injury to internal organs and there was no injury to blood vessels. We know that. Dr. Rezac, the State's witness, told us that.

 

In response, the prosecutor argued in her summation that defendant attempted to cause serious bodily injury when he purposely stabbed the victim in the abdomen. The prosecutor also argued that defendant actually caused serious injury because Fuentes has a permanent scar from the stabbing, which she showed to the jury.

In his first point, defendant claims he is entitled to a new trial because the jury should have been instructed on "the third-degree lesser-included offense of causing significant bodily injury." Pursuant to N.J.S.A. 2C:12-1(b)(7), a person is guilty of third-degree aggravated assault if he: "Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury." "'Significant bodily injury' means 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." N.J.S.A. 2C:11-1(d).

Because defendant did not present this issue to the trial court, we consider his argument under the plain error standard. R. 2:10-2. Under that standard, we will disregard any error or omission by the trial court "'unless it is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting R. 2:10-2). To reverse for plain error, we must be convinced there is a real possibility the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Absent a timely request for a jury charge, or an objection to the court's instructions, the trial court is not required to instruct the jury on a lesser-included charge unless "the facts 'clearly indicate' the appropriateness of that charge." State v. Choice, 98 N.J. 295, 299 (1985) (quoting State v. Powell, 84 N.J. 305, 318 (1980)); see also State v. Thomas, 187 N.J. 119, 132 (2006) ("[E]ven in the absence of a request, we have 'held that a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'") (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

In this case, it is clear from Dr. Rezac's testimony that Fuentes did not sustain a significant bodily injury, and there was no factual basis for the jury to conclude that defendant attempted to cause significant bodily injury. Thus, we find no error, much less plain error, in the jury instructions.

In his second point, defendant challenges his sentence. He initially argues that count three (third-degree possession of a weapon for an unlawful purpose) should have merged into count one (second-degree aggravated assault). The State agrees, and we concur. See State v. Diaz, 144 N.J. 628, 641-42 (1996) (noting that merger was required when the only unlawful purpose for possessing the weapon was to use it against the victim of the substantive offense).

At defendant's sentencing hearing, the court found that "aggravating factors two, three, and nine substantially outweigh mitigating factor number seven." Defendant now argues that he should be resentenced because there is no evidence to support aggravating factor two (the "seriousness of harm inflicted on the victim" and whether "the victim of the offense was particularly vulnerable"), N.J.S.A. 2C:44-1(a)(2); and the court failed to adequately explain its reasons for the nine-year NERA sentence.

When reviewing a sentence, this court must determine whether the findings of fact regarding aggravating and mitigating factors were based on "competent, reasonably credible evidence," whether the trial court applied "correct legal principles in exercising its discretion," and whether the application of the facts to the law constituted "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984); accord 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 second-guess the trial judge's findings if they are supported by substantial evidence in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009).

Pursuant to Rule 3:21-4(g), judges are required to state their reasons for imposing sentence and to make findings regarding the applicability "of particular aggravating or mitigating factors affecting sentence." While a court may be brief, it is insufficient for a court to merely enumerate its ultimate findings. State v. Dunbar, 108 N.J. 8, 97 (1987).

In this case, we agree that a remand for resentencing is appropriate because the trial court failed to qualitatively evaluate the aggravating and mitigating factors; it failed to state why aggravating factor two applied; and it failed to explain how it determined defendant's sentence. See State v. Kruse, 105 N.J. 354, 363 (1987) ("Merely enumerating [aggravating and mitigating] factors does not provide any insight into the sentencing decision, which follows not from a quantitative, but from a qualitative, analysis.").

Defendant's conviction on count one is affirmed, but we remand to the Law Division to merge count three into count one and to reconsider defendant's sentence.

1 The prosecutor noted "for the record" that Fuentes was "pointing to her lower left abdomen," as she was testifying.