STATE OF NEW JERSEY v. BYRON D. KEMP, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0718-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BYRON D. KEMP, JR.,

Defendant-Appellant.

____________________________________

April 21, 2016

Submitted April 4, 2016 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-05-0648.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

RobertD. Bernardi,Burlington County Prosecutor, attorney for respondent (Boris Moczula, Legal Assistant, of counsel and on the brief;Jennifer B.Paszkiewicz, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b). We affirm.

At approximately 1:00 a.m., Burlington Township Police Officer Jarrod Broadway observed a vehicle, later identified as driven by defendant, drift between lanes. He activated his lights when he observed the vehicle accelerate to fifty miles per hour in a thirty-five mile per hour speed limit zone. When the vehicle accelerated to fifty miles per hour in a thirty-five mile per hour speed zone, he activated the overhead lights and effectuated a traffic stop. The officer approached defendant's vehicle and asked him for his license, registration, and insurance card. While doing so, the officer smelled an odor of raw marijuana emanating from inside the vehicle. He asked defendant if there was marijuana in the car, and defendant responded there was not. The officer waited for backup to arrive, then asked defendant to exit the vehicle. Defendant declined to give the officer consent to search the vehicle, and the officer told defendant he would be applying for a telephonic search warrant.

Officer Broadway turned defendant over to Officer Anthony Fontana, who arrived at the scene to place defendant in the back of his patrol vehicle. Officer Fontana patted defendant down, and found a small, empty plastic baggie commonly associated with narcotics and a knife.1 Officer Fontana advised defendant he would be secured for the officer's safety. However, as the officer attempted to handcuff defendant, he "did a quick spin and broke [the officer's] grip." Defendant then fled, and the officers gave chase.

Defendant led the pursuing officers through residential yards. During the chase, Officer Fontana lost his balance while trying to climb a broken fence, fell and injured his knee. The officer testified that after stumbling over the fence, he "stepped into a hole and some ditches, some grooves in the yard" and "fell pretty much face first down on the ground. There was a piece of concrete which [his] knee landed on." Another officer forcefully apprehended defendant. Defendant was then secured, searched, and placed in a patrol vehicle.

Defendant moved in limine to preclude the State from introducing evidence that Officer Fontana was injured during the chase and Officer Broadway's statement he smelled an odor of raw marijuana emanating from defendant's car. The judge denied the motion. On January 15 and 16, 2014, the case was tried by a judge and jury, and defendant was convicted of third-degree resisting arrest. The judge sentenced defendant to three years of probation, conditioned upon defendant serving 364 days in jail, along with appropriate fines and penalties.

On appeal, defendant raises the following points

POINT I

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S MOTION BECAUSE THE EVIDENCE PRESENTED AT TRIAL DID NOT SUPPORT A VERDICT OF RESISTING ARREST IN THE THIRD[]DEGREE.

POINT II

THE POLICE DID NOT HAVE GROUNDS TO LAWFULLY SEIZE THE DEFENDANT.

I.

We begin by addressing defendant's contention the judge erred by denying his motion for acquittal.

Defendant argues if he was never actually placed under arrest prior to fleeing, he cannot be guilty of resisting arrest. In the alternative, defendant argues that even if he was under arrest when he fled, that he did not create a substantial risk of injury and therefore can only be found guilty of a disorderly-persons or fourth-degree offense. Defendant contends that because the State failed to prove the third-degree resisting arrest charge, he was denied due process of law under both the Federal and New Jersey Constitutions. U.S. Const., amends. V and XIV; N.J. Const. art. I, 1, 9, and 10.

Rule 3:18-1 states

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

Our Supreme Court has explained the test for determining whether a motion for acquittal is warranted

the broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More [388] specifically, the question the trial judge must determine is 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. Reyes, 50 N.J. 454, 458-59 (1967) (citations omitted).]

If the State has failed to prove any one of the elements of the crime charged, the motion must be granted. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:18-1 (2016). In deciding a motion for acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).

This court will "review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).

N.J.S.A. 2C:29-2(a) states, in pertinent part

(1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person

(a) Uses or threatens to use physical force or violence against the law enforcement officer or another; or

(b) Uses any other means to create a substantial risk of causing physical injury to the public servant or another.

[(Emphasis added).]

Prior to trial, defendant moved in limine to preclude the State from presenting evidence to the jury regarding Officer Broadway smelling raw marijuana, which was denied. Later, at the close of the State's case, defendant moved for acquittal, but did not raise the issue of whether he was under arrest when he fled. Therefore, we review defendant's contention that he was not under arrest for plain error. R. 2:10-2 (stating an "error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result").

The issue properly framed is whether the evidence presented by the State, without consideration of the evidence presented by defendant, was sufficient to allow a reasonable juror to find defendant guilty of third-degree resisting arrest. See Pressler & Verniero, supra, cmt. 1 on R. 3:18-1 (explaining that if a motion for acquittal is "made at the end of the entire case, the trial court may not consider any evidence adduced by the defense in determining if the State has met its burden as to all elements of the charged crime").

N.J.S.A. 2C:29-2(a) requires that defendant "purposely" prevent the arrest, and therefore "resisting arrest requires a culpability of purpose." State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998). In Branch, this court explained the relevant inquiry is whether a "jury . . . could determine that the defendant knew that the police were attempting to effectuate an arrest and resisted the arrest." Ibid. "The failure to announce that defendant was under arrest would only be one factor to be considered in the overall sequence of events leading to the arrest." Ibid.

In State v. Judge, 275 N.J. Super. 194, 197 (App. Div. 1994), the defendant was pulled over for speeding, and when the officers approached the car, one of them detected an odor of burnt marijuana emanating from the vehicle. The defendant and his other passengers were ordered out of the car, the defendant was searched, but no contraband was found. Ibid. While the occupants were being searched, one of the troopers saw "[a] small plastic bag containing greenish-brown vegetation . . . in plain view on the console." Id. at 198. This led to a full search of the car, during which additional marijuana was discovered. Ibid. This court explained that

[a]lthough no formal arrest of defendant was announced when he was directed to step out of the vehicle, he was in reality under arrest for violating N.J.S.A. 39:4-49.1 and N.J.S.A. 2C:35-10. He was escorted to the rear of the vehicle where he remained under the control of [the officer]. The restraint of his person and the restriction of his liberty of movement by the trooper constituted an arrest. State v. Doyle, 42 N.J. 334, 343 (1964).

 
[Id. at 203.]

This court concluded probable cause existed because "using or possessing marijuana in a motor vehicle in New Jersey is a per se violation of the laws of this State." Id. at 202; see also State v. Nishina, 175 N.J. 502, 515 (2003) (stating "New Jersey courts have recognized that the smell of marijuana itself constitutes probable cause"); State v. Walker, 213 N.J. 281, 291 (2013) (recognizing use of marijuana in presence of police officer establishes probable cause to arrest).

Here, there was ample evidence for a reasonable jury to conclude that defendant was under arrest when he escaped the officer's grip. Officer Broadway testified that when conducting the traffic stop, he smelled an odor of raw marijuana. This led to defendant being ordered out of the car and searched, which uncovered a baggie commonly associated with marijuana packaging. The search led Officer Fontana to attempt to handcuff defendant, and defendant breaking away. Drawing all reasonable inferences in favor of the State, as we must in reviewing a motion for acquittal, there is sufficient evidence such that a reasonable juror could find that the arrest element was met.

The smell of marijuana alone is sufficient for a finding of probable cause to arrest, because possession of marijuana is per se illegal. Judge, supra, 275 N.J. Super. at 202. Although the officer did not declare defendant was under arrest, defendant was being secured by police officers in relation to narcotics, and broke away from the police and fled. See id. at 203. This reasonably suggests defendant knew he was being arrested, as there is little reason why he would take off in a sprint otherwise. A reasonable juror could conclude his conscious object was to avoid an arrest. Thus, the judge did not err in denying the acquittal motion.

Defendant asks this court to "hold that the officer's announced intention controls the consequences of failure to obey." This position is contrary to established law, as an officer's "failure to announce that defendant was under arrest [is] only . . . one factor to be considered in the overall sequence of events leading to the arrest." Branch, supra, 301 N.J. Super. at 321. Thus, the officer is not under a per se obligation in every instance to announce to the defendant he or she is under arrest; instead, the court looks to the totality of the circumstances in asking whether a "jury . . . could determine that the defendant knew that the police were attempting to effectuate an arrest and resisted the arrest." Ibid.

Having established that there was sufficient evidence for a reasonable jury to conclude that defendant was under arrest when he fled from the officer's control, the next issue is whether defendant used "any other means to create a substantial risk of causing physical injury." N.J.S.A. 2C:29-2(a)(3)(b). As defendant raised this issue below, we will review this legal issue de novo. Dekowski, supra, 218 N.J. at 608.

The structure of the statute "provides two distinct bases for elevating the grade of resisting from a crime of the fourth to a crime of the third degree." State v. Rivera, 437 N.J. Super. 434, 456 (App. Div. 2014). The first form of elevation is if the defendant "[u]ses or threatens to use physical force or violence against the law enforcement officer or another," and the second, disjunctive form of elevation occurs if the defendant "[u]ses any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2(a)(3)(a)-(b). The term "any other means" has not been fully delineated by case law, but this court has recognized that "one can create a substantial risk of physical injury by means other than force." Rivera, supra, 437 N.J. Super. at 457.

At the close of the State's case, defendant brought a motion for acquittal as to the substantial-risk prong. The judge applied Reyes, and concluded

[I]n evaluating the question before the [c]ourt about whether or not any other means to create a substantial risk of causing physical injury is present in this case, I do think I need to separate flight from something more. In other words, does every flight contain . . . a substantial risk of causing physical injury? No. It doesn't or there wouldn't be a separate elevation for this. And I can envision many circumstances in which flight would not contain the perils that were contained in the facts in this case.

Flight doesn't always involve darkness. Flight doesn't always . . . involve going through backyards. Flight doesn't always involve jumping fences, running at a sprint, pot holes, pitfalls, obstacle courses essentially. It doesn't always involve that and there[ are] many situations where you could have flight without the elevation of these additional factual circumstances that may be present in this case.

The jury may reject those and find the lower offense, but that's their prerogative and I have to give the State the benefit of all favorable inferences under [Reyes], and under the circumstances the [c]ourt cannot conclude that it would be appropriate to disallow the jury from even being able to consider the more elevated offense under the circumstances and the testimony that was presented herein.

The judge did not err in making this determination. Keeping in mind the Reyes standard, there was sufficient evidence on this record to allow a reasonable jury to convict defendant of third-degree resisting arrest. As this court has recently noted, the disjunctive nature of the statute separates the actual use of force from the use of any other means that create a substantial risk of injury. Rivera, supra, 437 N.J. Super. at 456-57. To be convicted under subsection (3)(b), the defendant need not actually cause the harm, he need only create the substantial risk of harm occurring, which is exactly what defendant did here. He intentionally ran through the yards, over the fence, and through the adjacent yard with pot holes to elude the police. In doing so, he created a substantial risk that an officer would be injured, especially given that this chase was occurring in darkness, at approximately one in the morning. There was sufficient evidence in the record for a reasonable jury to conclude that defendant undertook means that created a substantial risk of harm to the officer.

In his brief, defendant seems to conflate a motion for acquittal and a challenge to the sufficiency of the evidence supporting the jury verdict. A jury verdict is entitled to great deference. Rule 3:20-1 states

[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The comments to the rule make clear that "[a] new trial may be granted only on defendant's and not the court's motion." Pressler & Verniero, supra, cmt. 1 on R. 3:20-1. Here, defendant has not made such a motion and therefore his challenge to the jury verdict is not cognizable on appeal absent plain error. R. 2:10-1. In any event, the argument fails because the jury's verdict was supported by the evidence.2

II.

As to defendant's second argument, that the police lacked sufficient grounds to lawfully seize him, we conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief remarks.

As discussed above, the plain smell of marijuana is sufficient in itself for a finding of probable cause. Judge, supra, 275 N.J. Super. at 202-04. Just as an officer would have probable cause to arrest an individual he observed using marijuana, it follows that he has the same right to apprehend an individual when the officer smells marijuana, as possession or use of the substance is a per se crime. See Walker, supra, 213 N.J. at 291 (concluding that where officers observed the defendant smoking marijuana, the officers had probable cause to arrest).

Affirmed.

1 Evidence that a knife was found on defendant's person was excluded as a result of defendant's motion in limine prior to trial. The empty baggie was admitted into evidence.

2 The jury heard all of the testimony, including defendant's testimony that Officer Fontana told him he was not under arrest, and still found defendant guilty. As there was sufficient evidence to survive the motion for acquittal, then necessarily there was sufficient basis for the jury's verdict.