STATE OF NEW JERSEY v. ROBERT GRAHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0400-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT GRAHAM,

Defendant-Appellant.

________________________________

February 13, 2014

 

Submitted: January 29, 2014 Decided:

 

Before Judges Fuentes, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-01269.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Susan L. Berkow, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury on a three-count Middlesex County indictment, defendant Robert Graham was convicted of fourth-degree criminal trespass, N.J.S.A. 2C:18-3, as a lesser-included offense of burglary, N.J.S.A. 2C:18-2 (count two); and fourth-degree criminal mischief with property damage in excess of $500, N.J.S.A. 2C:17-3a(1) (count three). The jury also found defendant guilty of simple assault, N.J.S.A. 2C:12-1a, a disorderly persons offense that had originally been charged in a municipal complaint. The jury found defendant not guilty of second-degree sexual assault, N.J.S.A. 2C:14-2c (count one). The trial judge sentenced defendant to concurrent terms of "time served" and three years of probation on each conviction.1 As a condition of probation, the judge ordered defendant to: (1) undergo a mental health evaluation and, if recommended, attend a program for anger management; (2) attend substance abuse treatment meetings; and (3) have no contact with the victim. The judge also ordered defendant to pay $501 in restitution to the victim's landlord and appropriate fines, penalties and costs.

On appeal, defendant has raised the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR ACQUITTAL ON COUNT TWO OF THE INDICTMENT CHARGING BURGLARY OF THE [VICTIM'S] APARTMENT . . . .

 

POINT II

THE PROSECUTOR'S COMMENTS IN SUMMATION ON MATTERS OUTSIDE OF THE EVIDENCE PRESENTED TO THE JURY DEPRIVED [DEFENDANT] OF A FAIR TRIAL.

 

POINT III

 

THE TRIAL COURT ERRED IN SUBMITTING A STAND-ALONE OFFENSE OF SIMPLE ASSAULT CHARGED IN THE COMPLAINT TO THE JURY (NOT RAISED BELOW).

 

POINT IV

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON [DEFENDANT].

 

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence, but remand to amend the JOC to correct the errors noted above.

I.

The State developed the following proofs at trial. The victim, N.D.,2 had been friends with defendant's sister for over forty years. Through this relationship, N.D. was acquainted with defendant, but had been out of touch with him for "a numerous amount of years" prior to defendant's sister's death in November 2007. At that time, N.D. and defendant reconnected and began "grieving together." Over the next few months, N.D. let defendant sleep at her apartment "[o]ff and on," but he did not have his own keys. Defendant continued to maintain a home in New York and to visit his girlfriend in Florida. Between November 2007 and March 2008, N.D. testified that she and defendant had consensual sexual intercourse "[a] couple of times, while in [N.D.'s] apartment[.]"

On March 6, 2008, defendant asked N.D. to drive him to New York so he could attend a funeral for a family friend. N.D. agreed to do so but, after the funeral, she told defendant that she did not want to accompany him to a family luncheon. Instead, N.D. and defendant went to a "bar/restaurant" in Staten Island, where N.D.'s sister-in-law worked. N.D. and defendant had "some drinks[.]" The pair then returned to New Jersey.

After arriving at N.D.'s apartment, N.D. testified that she and defendant drank some wine and defendant began cooking some food. N.D. was sitting at the kitchen table. Suddenly, defendant became angry and complained that he had not been able to go to the family luncheon. He then punched N.D. in the face several times until she was unconscious. The next thing N.D. remembered was that defendant was "dragging [her] into the [bedroom]" and she passed out again. When she woke up, N.D. was naked and defendant was on top of her. N.D. testified that she "couldn't breathe" and she asked defendant to get off of her. Defendant got up, brought N.D. her nebulizer, and then left the room.

At some point, N.D. realized that defendant was no longer in the apartment. She put on "[a] shirt and a robe" and locked the apartment door and made sure that the windows were also locked. Shortly thereafter, N.D. testified that defendant broke "through the window" of the apartment by throwing his body against it. N.D. ran to a neighbor's apartment and the neighbor called the police. N.D. told her neighbor that she had been struck by defendant, but did not tell her that she had been sexually assaulted.

Officer Nicholas Mayo of the Spotswood Police Department was the first officer to arrive at the scene. He checked on N.D. and then went into the apartment to look for defendant. The officer testified that he "observed an enormous amount of glass shattered in the living room area. It was a clear indication that the window was broken from the outside in. [He] further observed blood all over the floors of the living room, kitchen and bedroom area." The police found defendant "in a fetal type of position" hiding in the corner of the boiler room at the rear of the apartment building. There was "blood all over him" and defendant had tied a shirt around his left arm to control the bleeding. Defendant was treated at the scene by Emergency Medical Technicians (EMTs) and then taken to the hospital.

Sergeant Brian Keenan spoke to N.D. She had blood on her face from being hit and photographs taken of her injuries at the apartment were admitted into evidence. The sergeant testified that N.D. "was bruised and [her] face was starting to swell. She had blood on her lip[,]" and "was shaken, uncontrollably, very upset." N.D. told Sergeant Keenan that she did not have a dating relationship with defendant and that she "definitely [did] not" have consensual sex with him.

The EMTs placed N.D. in an ambulance to take her to the hospital. On the way, N.D. told one of the EMTs that she had been raped. A sexual assault examination conducted at the hospital revealed the presence of sperm and "a forensic DNA specialist" testified at trial that defendant had been "identified as the source of the major DNA profile obtained" during the evaluation.

The window and blood-soaked carpet in N.D.'s apartment needed to be replaced. Some of the walls had to be repainted and the kitchen floor was also cleaned and repaired. N.D.'s landlord testified that he paid for the repairs and that the cost of the materials and labor was over $2,000.

Defendant did not testify. The defense presented testimony from a police dispatcher, police officers, and several EMTs, who stated that the incident had originally been reported as an "assault," rather than as a "sexual assault."

II.

We begin by addressing the argument raised by defendant in Point III of his brief. Defendant argues that his conviction for simple assault should be reversed because the trial judge incorrectly instructed the jury to consider this charge as a stand-alone offense. We disagree.

In addition to the three offenses contained in the indictment, defendant was charged in a municipal complaint3 with simple assault as a result of punching N.D. In pertinent part, Rule 3:15-3(a)(2) provides that, "[r]egardless of whether a jury sits as the finder of facts with respect to the criminal offense[s]" charged in an indictment, "the Superior Court judge shall sit as a municipal court judge on the [municipal] complaint and shall render the verdict with respect to the complaint on the proofs adduced in the course of trial." In accordance with this Rule, evidence concerning both the criminal and municipal offenses is presented to the jury. However, the jury only considers the criminal offenses, with the trial judge considering the municipal offenses after the jury has rendered its verdict. State v. DeLuca, 108 N.J. 98, 111 (1987), cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). The purpose of the Rule is to permit all of the offenses to be addressed in a single proceeding, while avoiding the significant double jeopardy issues that would be raised if the criminal and municipal offenses were tried by separate courts at separate times. See State v. Muniz, 118 N.J. 319, 328 (1990).

In accordance with Rule 3:15-3(a)(2), the judge in this case did not advise the jury at the beginning of the trial that it would be directed to consider the simple assault charge set forth in the municipal complaint. Instead, the jury was only told of the three criminal offenses set forth in the indictment. At the conclusion of the trial, however, the judge stated at the charge conference that she had determined that the jury should be instructed to consider a simple assault charge as a lesser-included offense of sexual assault. The judge read the proposed instruction to the attorneys and asked for their input. The following colloquy occurred:

[DEFENDANT'S ATTORNEY]: In this case, as we discussed earlier, my client was charged in a complaint with simple assault[, w]hich the Grand Jury didn't consider, because it's a [disorderly persons offense]. Would it not be more appropriate then, at this point, to give [the jury] that charge, as a separate, stand-alone simple assault, in this case, instead of your Honor deciding it as a Municipal Judge, so to speak, after the jury was done? Let them consider it. That way we don't have to explain to the jury that they are not getting its own charge, separately, as to the sexual assault?

 

[ASSISTANT PROSECUTOR]: I guess, I wouldn't object to that, Judge.

 

THE COURT: Like I'm saying, I take out that lesser, and just make it the next charge.

 

[ASSISTANT PROSECUTOR]: You can charge [the sexual assault offense], and then charge that simple assault.

 

THE COURT: That is what you are requesting?

 

[DEFENDANT'S ATTORNEY]: Yes. I have reviewed this with my client, and he agrees.

 

[ASSISTANT PROSECUTOR]: Okay. He agreed to it, Judge.

 

THE COURT: So, I'm going to take out that language. I am going through each page. I'll just say, the next charge for you to consider is simple assault.

 

[ASSISTANT PROSECUTOR]: All right.

 

[DEFENDANT'S ATTORNEY]: Okay.

 

THE COURT: And both sides are agreeing. Is that right[?]

 

[ASSISTANT PROSECUTOR]: Yes.

 

THE COURT: [Defense counsel]?

 

[DEFENDANT'S ATTORNEY]: Yes, I'll ask my client.

 

[DEFENDANT]: Yes.

 

THE COURT: Good. Then I'm going to change the verdict sheet. And just put in another count. It would just be question two then.

 

In his closing argument to the jury, defendant's attorney made full use of the judge's ruling on this issue. By having simple assault charged as a separate offense, defense counsel was able to present a clear alternative for the jury to consider. Thus, in an attempt to persuade the jury that it should not find defendant guilty of the much more serious sexual assault charge, defense counsel implored the jury to instead find defendant guilty of simple assault. He told the jury that N.D. "was the victim, minimally, of an assault to her face. You've seen the pictures. You will see them in the jury room. She certainly suffered a hit in the face - - minimally in the case." He then argued that the jury should "find [defendant] guilty" of simple assault because defendant "definitely did that." However, defendant's attorney argued that, unlike for the simple assault charge, the proofs as to sexual assault were "he said/she said" and that the jury should not believe N.D.'s claims because her testimony was contradictory. The jury acquitted defendant of second-degree sexual assault, but found him guilty of simple assault, a disorderly persons offense.

Now, for the first time on appeal, defendant argues that the judge should not have granted his request to have the jury consider simple assault as a stand-alone offense. Instead, he argues that the judge failed to follow Rule 3:15-3(a)(2) by permitting the jury to consider a municipal charge in its deliberations. Because defendant did not object to, and specifically requested, the instruction the judge provided to the jury on the simple assault charge, we review defendant's claim under the plain error standard. R. 2:10-2.

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

 

[State v. Burns, 192 N.J. 312, 341 (2007) (first alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

Reviewed under that standard, we discern no basis for disturbing defendant's conviction for simple assault.
We believe that the more appropriate procedure for presenting the simple assault charge to the jury would have been for the judge to either (1) follow Rule 3:15-3(a)(2) and personally decide the simple assault charge after the jury decided the three criminal offenses set forth in the indictment or (2) charge simple assault as a lesser-included offense of sexual assault, rather than as a stand-alone offense. However, defendant has not demonstrated that he was prejudiced in any way by the judge's instruction to the jury that it should consider the simple assault charge as a separate offense. Indeed, by permitting the jury to consider the municipal offense, defendant received greater constitutional protection than he was otherwise entitled to receive.

In addition, defendant's attorney specifically asked that the simple assault charge be separately presented to the jury so that he could argue in his summation that the jury had an alternative to finding defendant guilty of second-degree sexual assault. This strategy was successful and defendant cannot now reasonably complain that the jury was permitted to consider the charge. Moreover, because the judge could have charged simple assault as a lesser-included offense of sexual assault, defendant certainly suffered no prejudice when the jury was instructed to consider simple assault as a stand-alone offense.

Finally, defendant's guilt on the simple assault charge was manifestly apparent from the evidence presented. N.D. testified that defendant struck her until she became unconscious. The police and medical personnel confirmed the extent of N.D.'s injuries from the assault and photographs of her injuries were displayed to the jury. Thus, any error in the judge's instruction to the jury was clearly harmless under the circumstances of this case.

We have thoroughly considered the remaining arguments raised by defendant in Points I, II, and IV of his brief. In light of the record and applicable legal principles, we conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

In Point I, defendant argues that the judge should have granted his motion for a judgment of acquittal on the burglary charge.4 We disagree. On a motion for a judgment of acquittal, the governing test is

whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

 

"A person is guilty of burglary if, with purpose to commit an offense therein or thereon he . . . [e]nters a . . . structure[.]" N.J.S.A. 2C:18-2a(1). Here, defendant's action in breaking through a window to return to an apartment where he had just violently assaulted the victim was plainly sufficient to permit the jury to reasonably infer that he entered the apartment for the purpose of continuing the assault. Therefore, the motion for a judgment of acquittal was properly denied.

We also discern no merit in defendant's argument in Point II of his brief that the prosecutor improperly suggested that the landlord had additional receipts to support the damages caused to the apartment. The prosecutor's comments were "reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Moreover, the landlord's testimony, together with the receipts submitted in evidence, clearly demonstrated that the damages exceeded the amount necessary to sustain the fourth-degree criminal mischief charge set forth in the indictment. See N.J.S.A. 2C:17-3b(2) (providing that "[c]riminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00 but less than $2,000.00").

Finally, defendant argues in Point IV of his brief that his sentence was excessive. However, there is substantial credible evidence in the record to support the sentence imposed and we discern no basis to substitute our judgment for that of the trial court. State v. Lawless, 214 N.J. 594, 606 (2013).

Defendant's conviction and sentence are affirmed, and the matter is remanded to amend the JOC to correct the jail credits, the term of probation, and the disposition of the stand-alone simple assault charge. We do not retain jurisdiction.

1 There are several errors in the judgment of conviction (JOC). The JOC states that defendant had served seven hundred and fifty days in the county jail. At sentencing, however, the judge granted defendant an additional eight days of jail credit that is not reflected in the JOC. The JOC also incorrectly states that defendant was sentenced to five years of probation, rather than three years, on each conviction. In addition, the JOC inaccurately states that the simple assault charge was presented to the jury as a lesser-included offense of sexual assault. However, the simple assault charge was presented as a stand-alone offense.

2 To protect her privacy, we refer to the victim by her initials.

3 The simple assault charge was set forth in Municipal Complaint No. S-2008-000044-1224.

4 The jury found defendant not guilty of this charge, but guilty of the lesser-included offense of criminal trespass. However, defendant argues that, if his motion to acquit him of the burglary charge had been granted, the jury would not have been permitted to consider the lesser-included offense.