STATE OF NEW JERSEY v. MOISES GONZALEZ

NOT FOR PUBLICATION WITHOUT THE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.

MOISES GONZALEZ, a/k/a JUAN

GONZALEZ,

Defendant-Appellant.

___________________________________

May 25, 2016

Submitted January 6, 2016 Decided

Before Judges Alvarez, Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-05-0444.

Jeffrey B. Steinfeld, attorney for appellant.

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Moises Gonzalez appeals from his convictions of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). He argues that his acquittal of a related weapon possession charge was inconsistent with the conviction of the second-degree charge. He also argues there was insufficient evidence to support a finding of accomplice liability. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We discern the following facts from the trial record. On February 18, 2007, defendant and his cousin Juan Amaya were at the Anchor Bar in Plainfield having drinks. At some point that night, defendant got into an argument with Francisco Ramirez, who was at the bar with his brothers Marco, Jose, and Roberto.1 The record suggests the argument started because Francisco used the bathroom in the bar and left the door open. The argument was heated, but did not turn physical. A security guard intervened and removed defendant and Juan from the bar.2

Defendant and Juan waited in the parking lot outside for the Ramirez brothers. Between ten and thirty minutes later, Francisco, Jose, and Roberto exited the bar. As soon as the three brothers walked outside, defendant and Juan started throwing bottles at them. None of the brothers were armed.

A fist fight ensued. After a few punches were thrown, Juan took out a knife and stabbed at least two of the Ramirez brothers. Marco came outside moments after his brothers and saw one of them fighting with defendant. Marco intervened, and Juan stabbed him six times in the torso. Francisco and Jose were also stabbed. Roberto was not injured.

By the time the police arrived, defendant and Juan had fled the scene. One of the officers tended to Francisco, who had been stabbed in the stomach and chest. The officer testified that Francisco was "in and out of consciousness" and that "his intestines were protruding." Francisco and Marco, who also suffered internal injuries, were taken directly to the hospital and underwent surgery. Marco remained in the hospital for fifteen days. Jose was stabbed once in the chest, received sutures, and was released hours later.

In May 2007, a grand jury returned an indictment charging both defendant and Juan with second-degree aggravated assault by attempting to cause, purposely or knowingly causing, or recklessly causing serious bodily injury to Francisco, Marco and/or Jose, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree aggravated assault by attempting to cause, or purposely or knowingly causing bodily injury to Francisco, Marco, and/or Jose with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).

At trial, Marco testified that he was stabbed by Juan, but that he saw defendant "with the knife" and saw defendant stab Francisco. Marco testified that defendant "was the one that started everything" and Juan "was his assistant." However, the detective who conducted a photo array with Marco three days after the stabbing testified that Marco identified defendant as the man who stabbed him. Marco denied this, testifying that he identified defendant as the person who stabbed his "brother." He also testified that at the time of the photo array, he "was under the effects of a lot of morphine due to the pain."

Jose testified that defendant and Juan assaulted him and Juan stabbed him once in the chest. Jose also testified that he saw defendant "fighting with" Francisco, but was not able to see what was in defendant's hands. In a February 19, 2007 statement to police, Jose said that only "the one guy" had a knife. At trial, he testified that he was not given an opportunity to review that prior statement, and had actually said, "yes, they were people with knives." Jose acknowledged he had identified defendant in a photo array as the person who stabbed him and his brother, but he also testified that he had identified defendant as the person who was fighting Francisco.

Roberto gave conflicting testimony about whether defendant had a knife. On direct, he stated he saw that defendant "had the knife in his hand" and saw "his shirt was rolled like this, over his hand." On cross, Roberto testified he "did not see the knife" in defendant's hand, explaining, "I didn't see a knife. I saw the rag around his hand." He also testified that he saw defendant "throw punches." According to a detective, Roberto could not identify who possessed the knife when he spoke to police the night of the attack. He "identified" defendant in a photo array conducted three days later, but there was no testimony that he identified defendant as the person who stabbed Francisco. Roberto was uninjured, but he testified that one of the two attackers attempted to stab him.

Francisco did not testify. His brothers stated that he was living in El Salvador at the time of the trial.

The State also introduced Juan's Mirandized3 statement to police. He claimed the Ramirez brothers attacked him first and that he stabbed them in self-defense. He did not specify how many of the brothers he stabbed, but appeared to acknowledge stabbing at least two of them many times.4 His statement did not incriminate defendant; Juan said several times that he did not know what defendant was doing during the fight. He believed defendant was also attacked, but also stated that defendant was "behind" him when he was being attacked.

At the close of the State's case, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1. The court denied the motion, reasoning there was sufficient evidence to find defendant guilty either on the theory that he stabbed Francisco, or was Juan's accomplice in the stabbings of the three brothers. The court acknowledged the conflicting testimony regarding whether defendant had a knife, but stated that this was a credibility issue for the jury.

Defendants did not testify. They called a police officer who arrived on the scene after defendants left. He testified that the brothers were intoxicated, Jose threw ice at him, and he initially placed Marco and Roberto under arrest. Another police officer testified that Jose was found to possess drugs on his person.

In the jury charge, the court instructed the jury that it could find defendant guilty either as the principal or as Juan's accomplice in each of the assaults. The accomplice liability instruction tracked the language in N.J.S.A. 2C:2-6(c). The judge stated

The State has two theories in this case. One, that each defendant acted as a principal, and that each defendant acted as an accomplice.

. . . .

[A] person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of the offense he . . . solicits such other person to commit the offense, and/or he aids or agrees to or attempts to aid such other person in the planning or commission of the offense.

The jury found defendant guilty on both aggravated assault counts as to each of the three brothers named in the indictment, and not guilty of possessing the knife for an unlawful purpose. The jury was not asked to specify whether the verdict was based on principal or accomplice liability. Juan was found guilty of the weapons charge and the two aggravated assault counts as to each victim. Neither defendant filed a motion for a new trial.

At defendant's sentencing on June 6, 2008, the court merged the third-degree aggravated assault conviction into the second-degree conviction, and imposed a five-year term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be followed by a three-year term of parole supervision.

Defendant raises the following points on appeal

THE INCONSISTENT VERDICTS OF "GUILTY" TO COUNT ONE OF THE INDICTMENT AND OF "NOT GUILTY" TO COUNT TWO OF THE INDICTMENT, MANDATE REVERSAL OF APPELLANT'S CONVICTION.

IN LIGHT OF THE FACT THAT THERE WAS NO EVIDENCE ADDUCED AT TRIAL UNDERLYING THE STATE'S THEORY OF ACCOMPLICE LIABILITY, APPELLANT'S CONVICTIONS MUST BE REVERSED.

IN THE ALTERNATIVE, APPELLANT'S CONVICTIONS ON COUNTS ONE AND THREE OF THE INDICTMENT MUST BE REVERSED, BECAUSE THEY ARE CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE.

II.

We begin with defendant's argument that the inconsistent verdicts require reversal of his conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He reasons that the not-guilty verdict on the weapon count cannot be reconciled with the guilty verdict for second-degree aggravated assault, which he claims was "premised solely on" his possession of the knife.

We will not reverse a conviction because of claimed inconsistency in the verdict. Our law permits inconsistent verdicts "so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt." State v. Banko, 182 N.J. 44, 54-55 (2004) (internal quotation marks and citations omitted). "We do not speculate why a jury acquits." Id. at 54. We accept inconsistent verdicts "because it is beyond our power to prevent them." Ibid. Therefore, we will affirm a defendant's conviction if there was sufficient evidence for the jury to find guilt beyond a reasonable doubt. Ibid.

A person is guilty of second-degree aggravated assault 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 . . ." N.J.S.A. 2C:12-1(b)(1); N.J.S.A. 2C:12-1(b)(12). A person is guilty of third-degree aggravated assault with a deadly weapon if he "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon . . ." N.J.S.A. 2C:12-1(b)(2); N.J.S.A. 2C:12-1(b)(12). A conviction under N.J.S.A. 2C:39-4 requires proof that a person possessed a weapon "with a purpose to use it unlawfully against the person or property of another . . . ."

As a threshold matter, we reject defendant's argument that there were inconsistent verdicts. First, if defendant were found guilty of the assault charges based on accomplice liability, the convictions would not require a finding that he personally possessed the knife. Second, a finding that he acted as a principal in stabbing Francisco was not necessarily inconsistent with the not-guilty verdict on possession of a knife for an unlawful purpose. We rejected a similar argument in State v. Mieles, 199 N.J. Super. 29, 40-41 (App. Div.), certif. denied, 101 N.J. 265 (1985), where the jury found the defendant guilty of aggravated assault, but not guilty of possession of a firearm for an unlawful purpose. We explained

The verdict here may simply have reflected a finding by the jury that while defendant did not originally possess the weapon for unlawful use the difficulties between defendant and [the victim] triggered the aggravated assault . . . . There would be no inconsistency in the verdict, for the possession count related to the purpose for which defendant possessed the gun and not how he used it.

[Id. at 41.]

Even if we accept that the verdicts are inconsistent, there was sufficient evidence to support the guilty verdicts. In reaching this conclusion, we also reject defendant's argument that there was insufficient evidence to find him guilty as an accomplice.

With respect to Francisco, there was sufficient evidence to find defendant guilty as a principal, given Marco's testimony that he saw defendant stab Francisco. Marco's testimony was not contradicted by Jose's or Roberto's testimony. The verdict was further supported by the fact that defendant and Francisco had an argument inside the bar, which suggested that defendant had a motive to target Francisco.

Even if the jury concluded that defendant never possessed a knife, there was sufficient evidence to find him guilty as an accomplice in the assaults of each of the three injured brothers. The court's accomplice instruction tracked N.J.S.A. 2C:2-6(c), which states that a person is guilty as an accomplice if "(1) With the purpose of promoting or facilitating the commission of the offense; he (a) Solicits such other person to commit it; [or] Aids or agrees or attempts to aid such other person in planning or committing it . . ."5 In other words, the person "must not only share the same intent as the principal who commits the crime, but also must at least indirectly participate[] in the commission of the criminal act." State v. Whitaker, 200 N.J. 444, 459 (2009) (internal quotation marks and citation omitted).

There was ample evidence that defendant and Juan shared the same purpose to assault the three brothers. Defendant had argued with Francisco earlier in the bar; he waited with Juan outside to launch an attack on the Ramirez brothers; he and Juan threw bottles at the brothers as soon as they came outside; and he participated in the ensuing fight.

As for his participation in the commission of the assaults, Marco, Jose, and Roberto all testified that defendant and Juan jointly attacked them. Marco testified that "[defendant] was the one that started everything." By fighting the brothers at the same time Juan was wielding a knife, defendant drew bodies away from Juan, making it easier for Juan to stab Marco and/or Jose. This participation in the brawl that resulted in Marco and Jose being stabbed was sufficient evidence that defendant "aided or attempted to aid" Juan. Alternatively, the jury could have found that defendant "agreed . . . to aid" Juan in committing the assaults, based on the fact that he and Juan waited outside for the Ramirez brothers to launch an attack.

With respect to the second-degree charge, the State presented sufficient evidence to support the "serious injury" element. Francisco's intestines were protruding as a result of his wounds. Marco required surgery and a fifteen-day hospital stay. Although Jose's injuries were not as critical, the jury could find based on the evidence that a stab to the chest was an attempt "to cause serious injury." In any event, all three suffered bodily injury sufficient to satisfy the third-degree charge.

While defendant contends his actions were "separate and distinct" from Juan's, the brothers' testimony was sufficient for the jury to find the two were working in concert. That defendant may not have personally stabbed Marco, Jose, or even Francisco, does not absolve him of guilt as an accomplice. The State presented sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt of second-degree aggravated assault and third-degree aggravated assault with a deadly weapon.

Finally, we reject defendant's argument that his convictions were against the weight of the evidence. Aside from the ample evidence discussed above, his argument is barred because he did not move for a new trial on this ground before the trial court. R. 2:10-1. To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 For the reader's convenience, we will refer to the various actors by their first names. We mean no disrespect in doing so.

2 Juan was apparently not involved in the argument, but he was with defendant when it started. Francisco's three brothers also were not involved in the argument.

3 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 One detective asked Juan why he stabbed "three of them . . . two of them several times," but before Juan could answer, another detective asked why Juan was "stabbing them two so many times." Juan answered, "Because they . . . were hitting me with such anger."

5 The jury instruction omitted the additional bases for accomplice liability found in N.J.S.A. 2C:2-6(c)(1)(c) and -6(c)(2).