STATE OF NEW JERSEY v. DASHIR DONALDSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5321-04T45321-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DASHIR DONALDSON,

Defendant-Appellant.

_______________________________________

 

Submitted November 1, 2006 - Decided December 7, 2006

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-05-1866-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Erdman, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel).

PER CURIAM

Defendant Dashir Donaldson appeals from his convictions for conspiracy to commit theft and attempted theft and the sentence imposed. For the reasons that follow, we affirm.

Donaldson was charged under an Essex County indictment with conspiracy to commit theft, N.J.S.A. 2C:5-2 (count one); attempted theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3 (count two); receiving stolen property, N.J.S.A. 2C:20-7 (count three); carjacking, N.J.S.A. 2C:15-2 (count four); aggravated assault, N.J.S.A. 2C:12-1b(7) (count five); possession of a weapon, N.J.S.A. 2C:39-5d (count six); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven); attempted theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3a (count eight); and resisting arrest, N.J.S.A. 2C:29-2a (count eleven). Co-defendant Radee King (King) also was charged in counts one through three. In addition, King was charged with soliciting a juvenile to commit theft of an automobile, N.J.S.A. 2C:20-17a (count nine); and resisting arrest, N.J.S.A. 2C:29-2a (count ten).

The charges arose out of an incident that occurred on October 26, 2003. Evidence presented at trial indicated that defendant and Radee King (King) were driving around South Orange in a stolen Ford F-150 pick-up truck looking for automobiles that they might steal. Defendant was about sixteen years old at the time. In the early afternoon, they noticed a 2001 Audi TT Roadster parked in the driveway of a residence owned by Gene Chollet (Chollet) and John Olguin (Olguin). Chollet's Audi was parked in the driveway and Olguin's Chrysler Sebring was parked behind it, closer to the street.

Defendant got out of the pick-up truck. He rolled Olguin's Sebring out of the driveway and into the street in order to gain access to the Audi. Olguin was home at the time and happened to look out the door. He saw that his car had been backed up into the street. Olguin realized that someone was in the vehicle. He ran out of the house towards the car, yelling to the person in the car to get out. Olguin testified that the person looked at him, got out of the car and started running towards the truck, which was stopped about a half a block down the street. According to Olguin, defendant was the person in his car.

Olguin chased after the pick-up truck. Defendant got into the passenger side of the truck and the truck started forward. Olguin grabbed a large rock from a retaining wall and threw it at the truck. King drove the truck about fifty feet, when he slammed on the brakes and stopped. Defendant got out of the truck and walked back towards Olguin. Defendant was holding "a metal rod or a pole" in his hand. Olguin said that the metal rod was called a "slap hammer." Olguin hid behind a van.

Defendant ran towards the Audi, got into the car, and began to back it out of the driveway. Olguin said that he used his body to try to keep defendant from getting the car out of the driveway. When this did not work, Olguin jumped into the car on the passenger side. The Audi was a few feet from the end of the driveway. Olguin tried to take the keys out of the ignition or stall the car as defendant was backing it up.

While Olguin and defendant struggled, the Audi rolled to the opposite side of the street, where it hit a bump or curb and stalled. Olguin said that defendant grabbed the slap hammer and lunged for him inside the vehicle. Olguin grabbed the slap hammer and took it out of defendant's hands. At this point, defendant left the car and ran back to the truck.

King testified for the prosecution. King said that on October 26, 2003, he was riding around "stealing cars." Defendant was with him. King said that at one point, defendant got out of the truck because he wanted to steal the Audi. King drove around the corner. He saw defendant get into the Audi. King said that defendant came back to the pick-up and then got out again. Defendant returned to the truck in less than a minute and they left the scene. A short distance away, the truck collided with a GMC wagon. When the police arrived, King and defendant ran. King said that he was "far away from the accident" when the police caught up with him. The police later arrested defendant.

Defendant testified on his own behalf. Defendant said that King had decided to steal cars that day and he went along with him. According to defendant, King pointed out the Audi and told him to "get it." Defendant stated that he did what King told him to do. Defendant described moving the Sebring in order to take the Audi.

Defendant explained that the slap hammer was a burglary tool that is used to pull the ignition out of a car. Defendant said that he had the slap hammer in his possession when he was in the truck but he did not bring it with him when he went to steal the Audi. Defendant asserted that he did not need the slap hammer to start the Audi because the keys were in the vehicle.

Defendant said that he was in the Audi about a minute before Olguin came out of the house. When he saw Olguin, defendant ran back to the truck. Defendant said that he never saw Olguin in the car. Defendant was asked why he ran when he was in the car and he saw Olguin. Defendant replied, "Because I didn't know if he had a gun or something, so I left. It was over. I'm not going to sit there and still try to take the car." Defendant was found guilty on counts one and two and not guilty of the remaining charges. At sentencing, the judge merged count one with count two and sentenced defendant to a four-year term of incarceration, with a two-year period of parole ineligibility. The judge also ordered the suspension of defendant's driver's license for one year and imposed appropriate penalties and assessments. This appeal followed.

Defendant raises the following points for our consideration:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY GIVING THE FLIGHT CHARGE.

II. FEDERAL AND STATE CONSTITUTIONAL GUARANTEES MANDATE THE DECLARATION OF THE SENTENCE HEREIN UNCONSTITUTIONAL AS AN IMPROPER ALLOCATION OF FACTFINDING TO THE TRIAL COURT RATHER THAN THE JURY.

III. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED BECAUSE:

A. The trial court judge improperly considered dismissed juvenile charges during sentencing (Not raised below).

B. The trial court judge failed to properly weigh the aggravating and mitigating factors.

We turn first to defendant's contention that the trial judge erred by instructing the jury that defendant's departure from the scene of the crime may be considered "an indication of proof of consciousness of guilt." Defendant argues that the flight charge should not have been given in this case because defendant provided an explanation for his departure from the scene. We disagree.

Evidence of flight by the accused is generally admissible because it demonstrates consciousness of guilt. State v. Mann, 132 N.J. 410, 418 (1993). However, flight must be more than a mere departure from the scene. Ibid. "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 418-19 (quoting State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966)).

If the trial judge finds that the evidence of flight is admissible, the jurors must be instructed regarding the inferences that they may draw from that evidence. Id. at 420. A legally adequate instruction requires the jury to find that defendant departed from the scene and had a motive for departing which turns the departure into flight. Id. at 421 (citing State v. Wilson, 57 N.J. 39, 49 (1970)). "If a defendant offers an explanation for the departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Id. at 421 (citing State v. Leak, 128 N.J. Super. 212, 217 (App. Div.), certif. denied, 65 N.J. 565 (1974)).

Here, defendant offered an explanation for his departure from the scene. However, the jury was required to determine whether the explanation was credible. Based on the evidence presented, the jury could reasonably find that defendant left the scene in order to avoid apprehension and prosecution for attempting to steal the Audi. In our view, the judge properly instructed the jury on flight.

We also find no merit in defendant's contention that he is entitled to be re-sentenced pursuant to State v. Natale, 184 N.J. 458, 466 (2005). In Natale, the Court held that "a sentence above the presumptive statutory term based solely upon a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Ibid.

Natale requires re-sentencing of "affected" defendants who were sentenced to terms longer than the presumptive term when the issue was raised at trial or on direct appeal. Id. at 495-97. In this case, re-sentencing is not required because defendant was sentenced to a four-year term on count one, conspiracy to commit theft, which is a third-degree offense. N.J.S.A. 2C:5-4(a); N.J.S.A. 2C:20-2b(2)(b). The presumptive term for a third-degree offense is four years. N.J.S.A. 2C:44-1f(1)(d).

Defendant additionally argues that he is entitled to be re-sentenced pursuant to Natale because the judge imposed a two-year period of parole ineligibility. Again, we disagree. The imposition of a minimum sentence based on judicial fact-finding does not contravene the Fifth or Sixth Amendments of the United States Constitution. See State v. Abdullah, 184 N.J. 497, 510 (2005) (citing Harris v. United States, 536 U.S. 545, 568, 122 S. Ct. 2406, 2420, 153 L. Ed. 2d 524, 545 (2002)).

Defendant further contends that his sentence is excessive. At sentencing, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk of re-offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge therefore concluded that the aggravating factors predominated. Notwithstanding these findings, the judge imposed the presumptive term.

Defendant argues that, in making his findings, the judge erred by taking into account certain arrests. He also asserts that the judge should have found a mitigating factor pursuant to N.J.S.A. 2C:44-1b(1) because the victim was not physically harmed. In addition, defendant argues that the judge should have considered his age as a mitigating factor when sentencing defendant. We are satisfied that these contentions are wholly lacking in merit. R. 2:11-3(e)(2).

We therefore are convinced that the sentence imposed in this matter is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

The record reflects that defendant has also been known as: Sadot Crestent, Dashir Donnalson, Rasheed Hamilton, Wiheed Nelson.

King pled guilty to conspiracy, attempted theft, receiving stolen property, and resisting arrest. The charge for soliciting a juvenile to commit theft was pending at the time King testified.

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A-5321-04T4

December 7, 2006