STATE OF NEW JERSEY v. PHILLIP WIDEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5485-03T45485-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILLIP WIDEMAN,

Defendant-Appellant.

 

Argued November 29, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-02-0053.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Howard A. McGinn, Assistant Prosecutor, argued the cause for respondent (Thomas S. Ferguson, Warren County Prosecutor, attorney; Mr. McGinn, of counsel and on the brief).

Following a jury trial, defendant Phillip Wideman was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d; and third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. He was sentenced to serve concurrent five-year terms of imprisonment, to which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied, on the second-degree and the two third-degree counts, and he was sentenced to a concurrent eighteen-month term on the fourth-degree count. We reverse and remand.

The charges for which defendant was tried and found guilty arise out of an altercation between defendant and James Young outside of a bar in Phillipsburg in October 2002. According to Young, he had never been in the bar before the evening in question. Young, who was twenty years old, had five or six beers during the evening and described himself as having been "buzzed" but "not at all" drunk. He testified that defendant, whom he did not know, approached him, and said to him: "Do you have a problem? Let's take it outside." Young then agreed, but for reasons not apparent in the record, defendant wanted Young to wait for twenty minutes before they engaged in any activity outside. At that point, Young left the bar with a friend. After spending some time at his friend's house, Young returned to the bar. He did not see defendant when he returned. Young then had one or two more beers.

According to Young, at "last call," defendant approached him and said: "Twenty minutes is up. Let's take it outside." Young agreed, took off his sweatshirt and handed it to a woman to whom he had been talking. Young told the woman as he did so, "watch, this is what I can do." Young explained that he went outside, because it was "an ego" thing and because "[if] somebody calls you outside, you're not going to . . . say no." Young testified that as soon as he stepped out of the door, defendant extended his left hand, as if to shake hands with him, but cut him with a sharp object held in his right hand and then ran away. Young was taken to a hospital where he was treated for a "deep, clean laceration" described as six inches long and three inches deep.

After the police arrested defendant and advised him of his Miranda rights, he told them that as he left the bar, he said "this ain't worth it. I'm leaving, I'm going home." Defendant said that as he started to leave, Young began to move toward him, that defendant pushed Young away and that a struggle that involved rolling on the ground had ensued during which Young might have been cut by broken glass. When the investigating officer told defendant that he did not believe that story, defendant told him that he was "significantly smaller" than Young, that he had been afraid when Young followed him out of the bar and that he had slashed Young with a razor as he pushed him away.

Others who were patrons at the bar on the night of the incident offered several different accounts of what had happened. Alex Johnson, who said he had been there with Young, testified that he did not hear any words between defendant and Young until he heard one of them say "let's take it outside" near closing time. Johnson said he saw the two grappling or wrestling and that he also saw defendant cut Young with a utility knife. Angelo Ortiz, who Young described as his friend, testified for the defense. He described Young as "running his mouth" and "talking shit" to defendant, challenging him to a fight. Ortiz tried to get Young to stop, but could not because, in his view, Young had been drinking too much. Ortiz testified that the owner of the bar also tried to intervene, but that Young would not leave defendant alone. According to Ortiz, he had gone to the front of the bar near closing time and did not witness the fight or the precipitating exchange.

Defendant argues on appeal that errors in the charge to the jury and on the jury verdict sheet individually or cumulatively confused the jury and deprived him of a fair trial. In the alternative, he challenges his sentence on the ground that the judge failed to merge offenses for purposes of sentencing him. Although the State concedes that certain of the arguments raised by defendant have merit and require relief, under the circumstances we deem it appropriate to address each of the issues raised.

We begin by observing that defendant did not object to the charge in relevant part at the time of the charge conference. We therefore address the issues raised on appeal relating to the accuracy of the charge in accordance with the plain error standard. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

The central theme of defendant's argument on appeal is that the charge and the verdict sheet were hopelessly confusing to the jury and thus deprived him of a fair trial. Defendant argues that the combination of the charge and the verdict sheet must have confused the jury because the charge discussed offenses that were omitted from the verdict sheet and, at the same time, failed to give the jury any instructions about other offenses that were, nonetheless, listed on the verdict sheet as lesser included offenses.

In particular, defendant first points out that the charge did not include any instructions about the lesser-included offense of third-degree "significant bodily injury" aggravated assault, see N.J.S.A. 2C:12-1b(7), but listed that offense on the verdict sheet. Second, defendant asserts that the judge charged the jury on the fourth-degree offense of recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(3), but omitted it from the verdict sheet. Third, defendant argues that the judge instructed the jury on third-degree aggravated assault by purposely or knowingly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2), but assigned to it the wrong mens rea, namely recklessness, by confusing it with the fourth-degree offense omitted from the verdict sheet. Fourth, defendant argues that the judge erred by failing to charge the jury that possession of a weapon for a self-defensive purpose was a permissible defense to the offense of possession of a weapon for an unlawful purpose. See State v. Harmon, 104 N.J. 189, 217 (1986). In the alternative, defendant asserts that even if the court finds no merit to these arguments, the sentence was inappropriate because the judge failed to properly merge the offenses.

The State concedes that there is merit to some, but not all, of defendant's points, agreeing that the conviction for third-degree aggravated assault must be reversed and that the conviction for third-degree possession of a weapon for an unlawful purpose should have merged for sentencing purposes. Notwithstanding those concessions, the State contends that the charge was adequate to support the convictions for second-degree aggravated assault and for the two weapon offenses.

Clear and correct jury charges are essential to a fair trial. State v. Koskovich, 168 N.J. 448, 507 (2001). Error in instructing the jury in criminal cases is ordinarily a "poor candidate[] for rehabilitation under the harmless error" standard. See State v. Weeks, 107 N.J. 396, 410 (1987); State v. Simon, 79 N.J. 191, 206 (1979). Nevertheless, a claim of plain error in the jury instruction must be determined by a review of the entire charge and the context of the asserted error. See State v. Gartland, 149 N.J. 456, 473 (1997).

Our review of the charge and of the verdict sheet compels us to reverse and remand this matter for a new trial in its entirety. The trial judge, while attempting to instruct the jury on the full range of lesser-included offenses, did not make clear to the jury the relationship between any factual finding as to the severity of the injury (that is, serious bodily injury, significant bodily injury and bodily injury) and the different degrees of aggravated assault that the jury was required to consider. Although defendant's counsel argued in summation about the different levels of injury and asked the jury to conclude that the slashing fell short of either serious bodily injury or significant bodily injury, we cannot conclude that her argument was sufficient, under the circumstances, to "mitigate the prejudicial effect of an erroneous charge." State v. Morton, 155 N.J. 383, 423 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Rather, the inherent internal conflict in the charge could not be cured by an explanation, even a forceful one, of the theory of the defense, particularly in light of the fact that some of the offenses to which the judge had referred in the charge were omitted entirely from the verdict sheet.

The State's candid concession that the charge relating to the mens rea necessary to support a finding of guilt on the third-degree aggravated assault count was flawed highlights rather than diminishes the error in this charge. As the State concedes, the charge on third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), confused three mens rea elements of purposely, knowingly and recklessly. As a result, the judge permitted the jury to convict defendant for the third-degree offense, requiring a finding that his conduct was purposeful or knowing, where the jury might only have made the finding that defendant's conduct was reckless, and thus only sufficient to support a finding of guilt on the lesser-included fourth-degree offense. See N.J.S.A. 2C:12-1b(3). Although the State asserts that these errors in the charge are entirely separate and that only the error relating to defendant's mens rea is entitled to relief, we cannot agree. Rather, we conclude that the several errors in the charge, particularly in combination with the errors on the verdict sheet, require that we reverse the conviction in its entirety and remand this matter for a new trial.

In light of our disposition, we need not address the arguments concerning self-defense as it related to the charge of possession of a weapon for an unlawful purpose. See Harmon, supra, 104 N.J. at 217. Regardless of whether defendant failed to request a self-defense instruction in connection with the counts for aggravated assault, defendant on remand may request such a charge in relationship to the count for possession of a weapon for an unlawful purpose.

 
The judgment of conviction is reversed and the matter is remanded for a new trial.

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

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A-5485-03T4

February 3, 2006