STATE OF NEW JERSEY v. ANTHONY VAUGHN-OWENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2387-06T42387-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY VAUGHN-OWENS,

Defendant-Appellant.

 

 
Submitted October 7, 2009 - Decided

Before Judges Sabatino and J.N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-445.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Bruce J. Kaplan, Union County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Vaughn-Owens was convicted by a properly-instructed jury of several offenses, including third degree (reckless) assault by auto, N.J.S.A. 2C:12-1(c). The defendant's sole argument on appeal declares that the trial court erred in denying defendant's motion for a judgment of acquittal on the assault by auto charge because the State failed to prove that defendant had caused serious bodily injury by driving recklessly. We affirm because sufficient evidence was presented to the jury to enable it to conclude that defendant's conduct on the night in question was reckless beyond a reasonable doubt.

In reviewing a trial court's decision to deny a motion for judgment of acquittal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Josephs, 174 N.J. 44, 81 (2002). The State's evidence should be viewed in its entirety and given "the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony." State v. Spivey, 179 N.J. 229, 236 (2004). With that framework in mind, we recite the facts that were available for consideration by the jury.

I

Around 2:50 a.m. on November 14, 2004, Piscataway police officer Christopher Raynor was dispatched to investigate a report of a car fire on a public roadway. After approaching a blazing 2000 Volkswagen Passat and observing that it was unoccupied, Raynor realized that the vehicle was actually combusting across the municipal border in South Plainfield, so he requested assistance from that municipality's police department. Raynor spotted three individuals close by the Passat congregating on the side of the roadway. He spoke with them and learned that they had been the occupants of the Passat. They were later identified as Delisa Jackman, Tynetta Worrell, and defendant. Raynor asked the trio to sit in his police vehicle until the South Plainfield police arrived.

At the same time Raynor was at the inferno, another Piscataway police officer, Robert Solomon, arrived at the scene. Solomon noticed that about four hundred feet south of the Passat fire, also in the roadway, was a 1993 Honda Accord with its door torn away and a person sprawled on the pavement. Later identified as Carlos Palacios, the obviously-injured victim was in need of emergency services and therefore Solomon immediately summoned for more help. Palacios was extricated from under the Accord and transported to a hospital for treatment.

South Plainfield police officer James McConville also responded to the location of the two damaged vehicles, an area that was not well-illuminated. Upon approaching the Piscataway police vehicle where Jackman, Worrell, and defendant were seated, McConville took in the scene. He was advised that Jackman was operating the Passat immediately before it burst into flames. After separating the three individuals, Jackman confirmed to McConville that she was the driver, that defendant was a front seat passenger, and that Worrell was asleep in the back when the collision occurred and the fire started. After discussing the matter further, Jackman and defendant gave their consent to each have their blood tested. The testimony at trial indicated that defendant's blood alcohol concentration (BAC) was about 0.19 percent, well in excess of New Jersey's 0.08 percent legal limit.

Around 3:25 a.m. on the same morning, South Plainfield police lieutenant Kevin Murtagh was dispatched out of bed to conduct an investigation of the accident. At trial, Murtagh was qualified as an expert witness in the discipline of accident reconstruction. He opined that the moving Passat collided with both the stationary Accord and Palacios who was standing alongside it. Immediately before the crash, the driver's door of the Accord was open approximately a foot and a half, with Palacios standing in the doorway. The impact propelled the Accord and Palacios about sixteen feet forward and Palacios became pinned under the vehicle. The Passat continued on for another four hundred feet until its leaking gasoline line ignited the vehicle.

Murtagh told the jury that it was his opinion that the driver of the Passat at the time of the collision was not Jackson. Rather, he came to the conclusion following his investigation, several days after the accident, that defendant was the operator. He largely based his opinion on the placement of the Passat's front seat, which suggested to him that it was set to accommodate a driver much closer in height to defendant than Jackman. Murtagh fortified his opinion in discussions with an eyewitness, Laiza Cordona, who testified at trial. Miss Cordona observed that it was a man, not a woman, who exited the Passat's driver's door when it came to a stop and the fire overtook the vehicle.

Robert Pandina, Ph.D., was presented to the jury by the State as an expert in the field of psychopharmacology and the effects of alcohol on human beings. He explained to the jury the probable physiological consequences of a BAC of 0.19 percent, which included altered vision and judgment, seriously impaired operation of a motor vehicle, and heightened risk of harm caused thereby. Dr. Pandina described an impaired driver's inability to modulate the speed of an automobile and to appreciate the unsafe nature of the operation of such a motor vehicle.

With these data and other information about defendant's conduct on the night in question, together with the observations of the witnesses, the arguments of counsel, and the guidance of the trial court with his instructions, the jury convicted defendant of, among other things, assault by auto. This appeal followed defendant's unsuccessful attempt to obtain a judgment of acquittal on the assault by auto count, arguing that evidence of recklessness beyond a reasonable doubt was lacking.

Defendant claims that the only evidence of recklessness that was presented to the jury was his intoxicated condition. He asserts that drunkenness alone cannot constitute recklessness. He emphasizes that the roadway was poorly illuminated, that the Accord was parked away from the curb by an intoxicated Palacios, and there were no direct observations of defendant speeding or driving the Passat erratically. Based upon our full consideration of the record in the case, we think the totality of the evidence was sufficient to convince a jury otherwise.

II

A court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454 (1967):

[T]he 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.

[Reyes, supra, 50 N.J. at 458-59.]

Under Rule 3:18-1, the trial court "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. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). The standard for deciding a Rule 3:18-2 motion for judgment of acquittal is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrel, 145 N.J. 112, 130 (1996).

The elements of the second count of the indictment, assault by auto, are twofold. First, that the defendant operated a vehicle recklessly; and second, that said reckless operation caused either serious bodily injury or injury to another. With respect to the first element, that the defendant operated a vehicle recklessly, the term "vehicle" includes an automobile. Defendant asserts that there was inadequate evidence to find that he operated the Passat recklessly beyond a reasonable doubt. We disagree.

When viewing the evidence appropriately for our scope of review, it reveals conduct that includes operation of an automobile in an impaired condition, involvement in a collision with a parked car resulting in substantial damage while a person stood immediately adjacent to its doorway, and continued driving for a distance greater than a football field, stopping only as the car was about to be engulfed in flames. Moreover, evidence of intoxication and an explanation of intoxication's effects on a driver of a motor vehicle can bespeak the necessary state of mind of recklessness required by N.J.S.A. 2C:2-2(b)(3) (conscious disregard of a substantial and unjustifiable risk). Intoxication may be evidence of recklessness, either alone or in combination with other factors. See State v. Stanton, 176 N.J. 75, 86, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003); State v. Jamerson, 153 N.J. 318, 335 (1998); State v. LaBrutto, 114 N.J. 187, 204 (1989); State v. Casele, 198 N.J. Super. 462, 472 (App. Div. 1985). In other words, a defendant's level of sobriety or insobriety is only one of several circumstances a jury is permitted to consider when deciding whether the element of recklessness, as defined in N.J.S.A. 2C:2-2(b)(3), has been established beyond a reasonable doubt. A person may be drunk without being reckless and vice versa. There is no automatic conclusion one way or the other regarding a state of mind simply because of drunken operation of a motor vehicle on a public roadway. See State v. Ebert, 377 N.J. Super. 1, 12 (App. Div. 2005) (traffic violation of reckless driving sustained by alcohol-induced impairment and operation of vehicle on a major state highway). While not conclusive, that fact may inform a jury of the requisite reckless state of mind. When coupled with the other behavior of defendant on the night in question, the jury's verdict is unassailable.

Defendant argues that our decision in State v. Lutz, 309 N.J. Super. 317 (App. Div. 1998) is dispositive on the issue of a reckless state of mind. In Lutz, a case involving a head-on collision, drunk driving, and an apology, we found that there was insufficient evidence e.g., no indication of speeding, driving too fast for road conditions, distracted or otherwise driving without causation and circumspection to support a conviction for careless driving. Defendant asserts that the factual matrix here is even less compelling, where a higher level of culpability is required to support the conviction for assault by auto.

While Lutz was correctly decided on its facts, the evidence in this case is factually distinguishable. The extensive evidence of defendant's conduct in the operation of the vehicle immediately after striking the helpless Palacios and the expert's explanation to the jury of the extrapolated physiological effects upon defendant of his ingestion of alcoholic beverages supply the necessary ingredients to overcome the notion that the jury was left to speculate upon defendant's state of mind. We find the Lutz analogy unpersuasive.

Affirmed.

 

The State's evidence suggested that defendant's blood, drawn several hours after the collision, revealed a BAC of 0.12 percent, which extrapolated back to the time of the collision would be a BAC of approximately 0.19 percent.

We note that the trial judge, in resolving the question of reckless driving as a traffic violation, N.J.S.A. 39:4-96, "would go the other way" and found defendant not guilty. This discrepancy does not diminish the adequacy of proofs that were available to the jury, a circumstance observed and well-understood by the able trial court.

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A-2387-06T4

October 20, 2009