STATE OF NEW JERSEY v. DERON A. WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERON A. WRIGHT,

Defendant-Appellant.

_____________________________________

March 13, 2015

Submitted January 21, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-10-01851.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Deron A. Wright appeals from his convictions for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree criminal restraint, N.J.S.A. 2C:13-2a; fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3); and fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a). We affirm.

I.

According to the evidence presented at trial, on July 26, 2011, at approximately 6:00 a.m., M.G. left her home for an early-morning run.1 At some point, M.G. stopped to walk on or around the running path, and came into contact with a person who was later identified as defendant. She nodded, acknowledging defendant as he passed. Shortly thereafter, M.G. heard footsteps approaching quickly from behind, and felt someone pull her "really close."

A witness, who was nearby, saw defendant stealthily approach M.G. and put his arms around her. The witness called out to defendant and asked him what he was doing. M.G. pulled defendant's hands off of her body. Defendant let go and proceeded down a dirt path in a different direction. M.G. told the witness she did not know the person who grabbed her, and told her to be careful. The witness yelled in defendant's direction, and warned him not to come back.

M.G. decided to continue running along the trail since she knew the police station was "about two-thirds of a mile" away and because she "could get there faster than anyone could get [her]." Before long, defendant grabbed M.G.'s shoulders and spun her around. She immediately yelled for help, after which defendant punched her in the mouth. After she was hit, M.G. felt several of her teeth come loose.

M.G. wound up on the ground, with her feet "still on the path," and her upper body "on the gravel and grass along the side." She asked defendant "not to hurt [her] anymore" and continued yelling for help. Defendant told M.G. "to shut up." M.G. felt defendant laying on top of her, "pushing against" her, and she heard him say "I want some" or "give me some." Before long, defendant got up and M.G. saw him take "off into the brush area by the marsh."

M.G. then saw a man running down the path in her direction. When he reached her, M.G. asked him to dial 9-1-1 for her. He did so, and she reported the incident to an operator, who forwarded the information to a police dispatcher. When police arrived at the scene, M.G. saw defendant stick his head out of the marsh, looking as if he wanted to "sneak across to the other side." M.G. believed she identified defendant as the person who assaulted her. The police officers chased defendant on foot and took him into custody.

A grand jury indicted defendant and charged him with first-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1, 2C:14-2a(3), 2C:14-2a(6) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree criminal restraint, N.J.S.A. 2C:13-2a (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count four); third-degree resisting arrest, of N.J.S.A. 2C:29-2a(3) (count five); and two counts of fourth-degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1b(5)(a) (counts six and seven).

Defendant was tried before a jury. At the trial, the State presented testimony from M.G., the witness who observed the incident, three police officers who responded to the scene, and the nurse who examined M.G. after she was transported to the hospital. Defendant elected not to testify, and he presented no witnesses on his behalf.

At the conclusion of the trial, the jury found defendant not guilty on counts one and seven, but guilty of the other changes. Thereafter, the trial judge sentenced defendant to six years of incarceration on count two, with a period of parole ineligibility as provided under No Early Release Act, N.J.S.A. 2C:43-7.2; four years on counts three and five; and one year and six months on counts four and six. The judge ordered that the sentences on counts three through six run concurrent with the sentence on count two.

On appeal, defendant argues

POINT I

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR [A] JUDGMENT OF ACQUITTAL ON COUNT TWO, SECOND-DEGREE AGGRAVATED ASSAULT, AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT CAUSED A SERIOUS BODILY INJURY.

POINT II

THE TRIAL COURT IMPROPERLY ADMITTED THE VICTIM'S PRIOR CONSISTENT RECORDED STATEMENT.

II.

We reject defendant's contention that the trial judge erred by denying his motion for a judgment of acquittal on count two, charging second-degree aggravated assault.

Rule 3:18-1 provides that, at the close of the State's case, or after all the evidence of the parties has been presented, the trial judge may enter "a judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to warrant a conviction." In ruling on a motion for a judgment of acquittal, the 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. Samuels, 189 N.J. 236, 244 (2007) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

Here, defendant was charged with aggravated assault under N.J.S.A. 2C:12-1b(1). A person is guilty of this offense if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" The term "serious bodily injury" is defined in N.J.S.A. 2C:11-1b to mean "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]"

Defendant argues that the trial judge erred by ruling that, based on the evidence the State had presented, a reasonable jury could find beyond a reasonable doubt that defendant attempted to cause or purposely or knowingly caused M.G. to sustain "serious bodily injury." He contends that the State failed to present sufficient evidence that M.G. sustained a "serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" Ibid.

We are convinced, however, that the judge correctly determined that the evidence was sufficient for the jury to find defendant guilty beyond a reasonable doubt of second-degree aggravated assault. M.G. testified that "several of [her] teeth were knocked loose" and that "[her] gumline was fractured." Moreover, the nurse who examined M.G. at the hospital confirmed that, on the date of the incident, three of M.G.'s teeth had loosened from her gums. At the time of trial, which was approximately one and a half years after the incident, M.G. was still under treatment, and she testified that she was "okay" so long as she did not bite with her injured teeth.

In support of his argument, defendant cites various cases which involved injuries that did not meet the definition of a serious bodily injury. In State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009), the court determined that a small right subdural hematoma that was expected to resolve "spontaneously" was not a serious bodily injury. Defendant's reliance upon Norman is misplaced because M.G.'s injuries were not expected to "resolve spontaneously." As noted, more than a year and a half after the assault, M.G. was still being treated and she was not able to use her injured teeth.

Defendant also relies upon State v. Green, 318 N.J. Super. 361, 368 (App. Div. 1999), aff'd, 163 N.J. 140 (2000), where the victim's injuries included a bruise on his leg, and cuts to his hands and fingers, which left a scar on the palm. The State conceded that these injuries did not meet the statutory definition of a "serious bodily injury." Id. at 371. However, in this case, the victim's injuries were not comparable to those of the victim in Green. Here, the victim's injuries did not consist of a minor scar but rather the inability to use her injured teeth, which was continuing a considerable time after the incident.

In addition, defendant cites State v. Kane, 335 N.J. Super. 391 (App. Div. 2000). There, we determined that a medical diagnosis of a broken nose did not necessarily qualify the harm suffered as a "serious bodily injury" under N.J.S.A. 2C:11-1b because "there was no evidence that 'the victim's condition was protracted, prolonged or extended in time.'" Id. at 399. We added, however, that other evidence of the effect the injury had on the victim's daily life and normal activities should be considered, as well as the nature and extent of the fracture in determining whether the injury meets the statutory definition. Id. at 398-99. In this case, the State presented evidence showing the effect that the injuries had on the victim. Moreover, the evidence established that the victim's condition was protracted. Thus, defendant's reliance upon Kane is misplaced.

Therefore, the trial judge correctly determined that the State had presented sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). Accordingly, we conclude that the judge correctly denied defendant's motion for a judgment of acquittal on count two.

III.

We also conclude that the trial judge did not err by admitting a redacted recording of M.G.'s 9-1-1 call into evidence.

We review the trial court's evidentiary rulings for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). We will not reverse those rulings in the absence of a "clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Applying this standard of review, we conclude that the challenged evidentiary rulings were a proper exercise of the court's discretion, and did not amount to a "clear error of judgment." Ibid.

Before opening statements, and outside the presence of the jury, the recording of the 9-1-1 call was played. Defense counsel asserted that she was objecting to admission of any part of the call. Alternatively, defense counsel argued that, if the tape is to be played, it should be redacted and the victim's assertion that someone tried to rape her should be deleted. The judge noted that, in his view, some of the victim's statements qualified as an excited utterance, and defendant had not argued otherwise.

The judge said defendant was seeking to bar the recording pursuant to N.J.R.E. 403. The judge permitted the assistant prosecutor to state in her opening that the victim had made a 9 1-1 call but he did not permit the assistant prosecutor to mention any part of the call in which the victim indicated that the assailant attempted to rape her. The judge reserved his decision on whether that part of the call should be admitted.

Before the victim testified, the judge further addressed the admissibility of the recording. The judge noted that "a significant portion" of the recording contained highly probative evidence regarding the issues to be proven in this case. The judge said this was persuasive evidence which included the "detailed description of the defendant, facts related to the manner in which the victim said she was assaulted, and a description of the victim's injuries."

The judge found that this part of the call should not be excluded under N.J.R.E. 403 because the probative nature of this evidence was not substantially outweighed by the risk of undue prejudice to defendant. The judge observed that, in the call, the victim had spoken in an emotional tone, but the tone was not "so overwhelming or distracting" that it would "mislead or distract or inflame a reasonable fact finder."

The judge found, however, that the victim's statements that someone had tried to rape her did not have any significant probative value. The judge viewed these statements as an expression of an opinion. The judge said these statements were not admissible as a lay opinion under N.J.R.E. 701 because they were essentially a legal opinion that the victim was not competent to provide.

The State argues that the redacted recording was properly admitted as substantive evidence of the alleged offenses, as an excited utterance, pursuant to N.J.R.E. 803(c)(2). We agree.

"The essential elements of an excited utterance are 1) '[a] statement relating to a startling event or condition;' 2) 'made while the declarant was under the stress of excitement caused by the event or condition;' and 3) 'without opportunity to deliberate or fabricate.'" State v. Branch, 182 N.J. 338, 365 (2005) (quoting N.J.R.E. 803(c)(2)). Here, the trial judge noted that the victim made the 9-1-1 call immediately after the alleged incident. This was undoubtedly "a startling event."

Moreover, as noted, the judge observed that, during the call, the victim's tone was emotional. This indicated that the victim "was under the stress of excitement caused by" the alleged assault.2 In addition, considering when the call was made, we are convinced that the victim did not have "the opportunity to deliberate or fabricate" her statements concerning the assault, the perpetrator or her injuries.

Defendant nevertheless argues that the judge should have excluded the evidence under N.J.R.E. 403. We disagree. We are convinced that the judge correctly found that the probative value of the redacted recording was not substantially outweighed by any undue prejudice to defendant that might result from its admission. Defendant's arguments to the contrary are not of sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant also argues that the redacted recording was not admissible under N.J.R.E. 607. Because this argument was not raised below, we review the contention for plain error. State v. Gore, 205 N.J. 363, 383 (2011) (citing R. 2:10-2). N.J.R.E. 607 states in pertinent part that, "(a) prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an expressed or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence." Ibid. (Emphasis added). As we have explained, the introduction of the redacted recording was allowed under N.J.R.E. 803(c)(2).

Furthermore, even if N.J.R.E. 607 barred the admission of this evidence, the error was not one clearly capable of producing an unjust result. R. 2:10-2. As defendant recognizes, in her trial testimony, M.G. provided essentially the same factual information that she provided in the 9-1-1 call.

Affirmed.

1 We refer to the victim as M.G. in order to protect her privacy.

2 We have also listened to the recording of the call and agree with the judge's finding that the victim's tone was emotional.