STATE OF NEW JERSEY v. WALLEY MINCEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4873-06T44873-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

WALLEY MINCEY a/k/a

WALLY MINCEY,

Defendant-Appellant.

__________________________________

 

Submitted: September 23, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0475.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Jordan S. Goldsmith, Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7) (Counts Three and Four). After merging Count Four with Count Three, Judge DePascale imposed a five-year term of imprisonment on Count Three. The appropriate fines, penalties and assessments were also imposed.

On November 19, 2004, Cowan Price received a call from his sister that defendant was on his way to the house Price shared with his sister and mother to "beat on [him]." Price suspected that his sister had informed defendant of a verbal argument between him and his sister that included some pushing and shoving. Defendant was the long-time boyfriend of Price's sister and the father of his sister's newborn child.

When Price received the call, he was at the barber shop. Price testified he had no desire to be at home when defendant arrived; nevertheless, he left the barber and returned to his home where he showered and changed his clothes. His sister reiterated that defendant was coming to get him and ten minutes later Price observed her drop keys from an apartment window to defendant to allow him to enter the building.

Defendant entered the apartment and accused Price of striking his child. Price denied he had struck the child and stated he would never do such a thing to a baby. As Price called his mother to report that defendant and another man were in the apartment, the other man struck him in the eye. As Price turned, defendant struck him in the face. Price fell to the ground, and defendant and the other man stomped and kicked him about the face and head. Price estimated that the beating lasted about five minutes. He did not punch, kick or strike defendant or the other man.

After the beating, defendant and the other man walked away. Price's grandmother called the police. The first officer who arrived at the scene found Price with his face covered in blood and his left eye swollen. He was taken by ambulance to the emergency room. A laceration to his cheek was repaired with wound glue; a bite mark on his hand required a tetanus shot. A CAT scan revealed a nasal bone fracture and an orbital fracture. An ophthalmologist and oral maxillofacial surgeon determined the fractures might heal without surgery and Price was released. At that time, Price testified that fluid leaked from his eye and his vision was blurred. He also testified that he occasionally continues to suffer blurred vision.

On appeal, defendant raises the following arguments:

POINT I

THE COURT ERRED IN FAILING TO INCLUDE A CHARGE FOR THE DISORDERLY PERSONS OFFENSE OF SIMPLE ASSAULT AND PETTY DISORDERLY PERSONS OFFENSE OF A FIGHT BY MUTUAL CONSENT.

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THIRD DEGREE AGGRAVATED ASSAULT AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

POINT III

THE TRIAL COURT IMPROPERLY ADMITTED TESTIMONY THAT WAS BASED ON A REPORT THAT WAS NOT QUALIFIED AS A BUSINESS RECORD AND WAS WRITTEN BY THE TREATING PHYSICIAN WHO WAS NOT PRESENT IN COURT, THEREBY DEPRIVING THE DEFENDANT OF HIS RIGHT TO CROSS-EXAMINATION.

POINT IV

AFTER PROVIDING THE JURY IN[S]TRUCTIONS, THE COURT RE-INSTRUCTED THE JURY WITH AN INCORRECT AND CONFUSING CHARGE, CAUSING CONFUSION AND RESULTING IN A SUSPECT VERDICT BEING RENDERED AGAINST THE DEFENDANT.

POINT V

THE SENTENCE IMPOSED BY THE COURT WAS IMPROPER AND EXCESSIVE BECAUSE THE COURT APPLIED INCORRECT AGGRAVATING FACTORS AND IGNORED RELEVANT MITIGATING FACTORS, WHILE FAILING TO PROVIDE AN ADEQUATE EXPLANATION FOR THE FACTORS FOUND.

Defendant's contention that the trial judge erroneously denied his motion for judgment of acquittal is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues that the trial court erred by denying his request to include in its charge instructions on the disorderly persons offense of simple assault and the petty disorderly persons offense of fight by mutual consent as lesser included offenses of aggravated assault. He contends the State produced insufficient evidence to allow the jury to convict him of third degree aggravated assault.

Our review of the record reveals that the trial judge included an instruction on simple assault. Therefore, we concentrate our attention on the omission of a charge for the petty disorderly offense.

Once defendant requested a charge of the petty disorderly offense of fight by mutual consent, the trial judge was obliged to determine whether the "'evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Brent, 137 N.J. 107, 117 (1994)). The judge was not required to charge a lesser included offense if an acquittal on the greater charge and conviction on the lesser was supported only by speculation. Ibid.

In support of his argument that the record supports the fight by mutual consent charge, defendant emphasizes that the victim suffered a bite wound to his hand and that he had showered, dressed and lingered in his apartment until the arrival of defendant and his colleague. Defendant contends that this evidence supports a fight by mutual consent charge.

The trial judge noted that there was no evidence that the victim delivered, and defendant or his cohort received, any blows. The judge started:

The facts are, the doctor's testimony was this was a bite mark. A bite mark does not imply that he punched anybody. A bite mark has two sides, a top and a bottom. Punch in the face may not, may, may not. This is a bite mark, not a punch. It is not the result of a fight.

All of the testimony in this case indicates that this victim, alleged victim did nothing, struck no blows, engaged in no fight, did nothing. That's the testimony. You cannot argue out of whole cloth because you'd like to argue it, that he engaged in fighting by mutual consent. There's no indication at all in the case that there was mutual consent involved.

Our review of the evidence supports the analysis of the evidence by the trial judge. At best, the victim's actions suggest no more than that, if he lingered and confronted defendant, he thought he would be able to disabuse defendant of the reported assault on the infant. There is no evidence that defendant or his companion was hit, kicked or stomped on or that either was cut or bruised following the encounter. Instead, the record contains evidence that defendant was the only person who received any kicks or blows and the only person who suffered any injury whatsoever. Based on this evidence, the trial judge properly concluded that the record did not provide a rational basis for the jury to acquit defendant of third degree aggravated assault and convict him of the petty disorderly persons offense.

During jury deliberations, the trial judge provided the jury with a supplemental instruction contrasting the serious bodily injury standard for second degree aggravated assault with the significant bodily injury standard for third degree aggravated assault. Defendant argues this supplemental instruction had the potential to confuse the jury. He also contends that the example used to illustrate significant bodily injury caused prejudice to him because the injury in the example was too similar to the victim's injury.

Defendant was indicted and tried on a four count indictment: second degree purposeful or knowing aggravated assault, N.J.S.A. 2C:12-1b(1); second degree reckless aggravated assault, N.J.S.A. 2C:12-1b(1); third degree purposeful or knowing aggravated assault, N.J.S.A. 2C:12-1b(7); and third degree reckless aggravated assault, N.J.S.A. 2C:12-1b(7). A critical distinction between the second and third degree offenses is the extent of the bodily injury sustained by the victim. At the conclusion of the charge, defense counsel objected to the charge as delivered. He insisted that the model jury charge used by the trial judge could mislead the jury to find that the victim's injury satisfied the significant bodily injury standard.

Although the judge determined the charge, as delivered, was consistent with the model jury charge for each offense and not misleading, he decided to provide a supplemental instruction that focused the jury's attention on the distinction between the nature and extent of bodily injury. He stated:

Ladies and gentlemen, over the luncheon recess, I had a chance to think about the instructions that I gave you earlier. Although I'm reasonably sure they were clear, I want to be absolutely certain that you're clear on something that factors, which distinguishes levels of bodily injury specifically with respect to the third degree significant bodily injury standard.

Significant bodily injury means bodily injury which creates a temporary loss of function of any bodily injury member [sic] or organ or temporary loss of any one of the five senses.

Now when we say that, that's contrasted with serious bodily injury which talks in terms of bodily injury creating a substantial risk of death which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

So, in a serious bodily injury classification, a prolonged or protracted impairment of a bodily injury member [sic] or organ is sufficient, okay. When you deal with a significant bodily injury, a temporary loss of the function of a bodily injury member [sic] or organ or one of the five senses means an actual loss of that sense where it's not required in serious bodily injury case[;] if it's protracted, an impairment is sufficient. But on a third degree, significant has to be an actual loss of the function, although temporary[,] of the use of a bodily member or one of the five senses.

Let me give you an example . . . If you and I have an argument and we're going to my car and you put your hand on the doorjamb and I slam the door on your hand, . . . let's say I only catch one or two of your fingers, they don't break, and you can still use your hand, there's no loss of the function of that hand.

. . . .

If you're talking or considering significant bodily injury that was actually caused, then it must involve the loss of a function or bodily member or organ. For example, if you punch me in the nose and my nose is bleeding on both sides and I can't breathe through it, even though that may be temporary, I have lost my sense of smell, that's sufficient. Okay, it is temporary but it involves a loss of the function of a sense.

Defendant also objected to this supplemental instruction.

We discern no error in the decision to provide a supplemental instruction. There is a fundamental distinction between second degree aggravated assault (serious bodily injury) and third degree aggravated assault (significant bodily injury), and we hesitate to second guess a trial judge who concludes that the nature of the evidence about defendant's actions and the injury sustained by the victim requires further instruction. In other contexts, such as the difference between aggravated manslaughter and reckless manslaughter, this court has emphasized the requirement to clearly and plainly advise the jury of the distinction between the risk of harm to the victim caused by the defendant's actions and the impact that distinction has on their deliberations. State v. Jenkins, 178 N.J. 343, 363-64 (2004). This situation is no different. We perceive that the trial judge understood that the jury might be confused and fail to appreciate the distinction and the consequences of the distinction to their deliberations.

Defendant also argues that the trial judge should not have allowed a non-treating physician to testify at trial regarding the nature and extent of the victim's injuries. We agree that the non-treating physician, who had no personal knowledge of the nature, extent and clinical consequences of the injuries sustained by the victim, should not have been permitted to testify. We hold, however, that the admission of this testimony does not require a new trial.

The physician who treated the victim was not available when this matter was tried. The State produced the treating physician's supervisor, who had no personal knowledge of the treatment provided to the victim. He also had no basis to offer an opinion on the consequences of the injuries sustained by the victim. The trial judge held that the physician could testify as a expert witness relying on the records created by the treating physician.

Based on his review of the hospital records, Dr. Shipley testified that diagnostic examinations revealed that the victim suffered nasal and orbital fractures. He recounted the treatment provided and explained why the victim received priority or urgent care on arrival at the emergency room but was not admitted for in-patient care. The physician admitted that his knowledge of the victim's injuries was limited to his review of the medical records and he was unaware of any later medical treatment. The prosecutor did not seek admission of the medical records in evidence.

Although the trial judge allowed Shipley to testify as an expert, the record reveals that the State presented him as a fact witness rather than an expert witness. As such, he was required to have personal knowledge of the facts to which he testified. See State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002) (cautioning that expert testimony may not be used to introduce as evidence otherwise inadmissible hearsay), aff'd, 177 N.J. 229 (2003). In fact, Shipley acted as simply a narrator of the contents of the medical records.

The physician's testimony, however, does not require a new trial. No one disputed that the victim suffered a bite wound, lacerations, and two facial fractures. The physician simply confirmed the known injuries.

Finally, defendant argues that the five-year term of imprisonment is excessive. This argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). State v. Roth, 95 N.J. 334, 364-66 (1984).

Affirmed.

This man was never identified.

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A-4873-06T4

November 20, 2009