STATE OF NEW JERSEY v. DHOLEA J. WHEATON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0962-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DHOLEA J. WHEATON,

Defendant-Appellant.

________________________________

March 1, 2011

Argued December 14, 2010 - Decided

Before Judges Wefing and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal

Appeal No. 23-09.

Carleen M. Steward argued the cause for

appellant (Gaylord Popp, L.L.C., attorneys;

Lawrence E. Popp, on the brief).

Kathleen E. Dohn, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction entered following a trial de novo in the Law Division. After reviewing the record in light of the contentions advanced on appeal, we are constrained to reverse and remand for further proceedings.

Defendant was initially tried in the Woodland Township Municipal Court on charges of simple assault, N.J.S.A. 2C:12-1; false imprisonment, N.J.S.A. 2C:13-3; and endangering the welfare of an incompetent person, N.J.S.A. 2C:24-7, all disorderly persons offenses. The charges flowed from an incident that occurred on August 16, 2008, during the course of defendant's employment as a Human Services Assistant at the New Lisbon Developmental Center, a facility dedicated to the care of individuals suffering from developmental delays. At the time of the incident, defendant had worked at the Center for approximately six years and was assigned to Spruce Cottage, where she had worked for approximately two and one-half years. On the day in question she was asked to work a second eight-hour shift because the Center was short-handed. A supervisor brought over another Human Services Assistant, Kimmona Brock, who was to be assigned to Spruce Cottage. He asked defendant to acquaint Ms. Brock with the needs and characteristics of the cottage residents.

One of the residents of Spruce Cottage was R.G., a man described by the municipal court judge as frail and non-verbal who had spent the greater part of his life at the Center. Residents such as R.G. would be permitted to smoke a cigarette if a cottage assistant accompanied the resident outside. At around 4:00 p.m. R.G. asked defendant if he could have a cigarette, and she responded that he could not because he had misbehaved earlier. R.G. became upset at this and pushed onto the floor some newspapers and magazines that were on a table. Ms. Brock testified that defendant got upset in turn, so upset that she grabbed R.G. by the shirt and pulled him to the floor. She said that defendant then proceeded to sit on him, straddling his face. She continued that R.G. struggled to free himself and that defendant responded by kneeling on his chest and asked him several times if he would be a good boy and behave himself. After R.G. responded that he would be a good boy, defendant released him. Ms. Brock said she had never seen a resident treated in such a fashion and that it did not comport with the personal restraint techniques they had been trained to use. Ms. Brock did not report the incident immediately but waited several days before doing so.

Defendant testified to a completely different version of what occurred. She denied completely that the incident with R.G. that Ms. Brock recited ever happened. Defendant said that when Ms. Brock arrived at Spruce Cottage that afternoon, defendant left her in the lounge area, supervising the residents who were there, while she went to collect pajamas for the residents to use at bedtime. Defendant said that when she returned with the pajamas, Ms. Brock was asleep in her chair, and two of the residents were not in the lounge where they had been when defendant departed. Defendant testified that she awoke Ms. Brock and asked where the two residents had gone, but Ms. Brock did not know. Defendant went in search of them and eventually found them in another section of the building. Defendant contended that Ms. Brock had fabricated her story about R.G. in order to protect herself from disciplinary charges for sleeping on the job.

R.G. was present at the municipal court trial, but he did not testify. Both sides stipulated during the trial that he lacked the ability to make his own decisions.

At the end of the trial, the municipal court judge gave an oral opinion setting forth why he found Ms. Brock's testimony more credible than defendant's. He concluded that defendant was guilty of false imprisonment because she had knowingly restrained R.G. unlawfully so as to interfere with his liberty and of endangering the welfare of an incompetent person because she had knowingly acted in a manner "likely to be injurious to the physical, mental or moral welfare" of R.G., a person unable to care for himself. In her testimony, Ms. Brock said that R.G. had not cried out in pain or given any indication of difficulty breathing while defendant sat on him. The municipal court judge concluded from that testimony that defendant was thus not guilty of simple assault but, rather, attempted assault. We have not been asked to determine whether that analysis was correct. State v. Stall, 403 N.J. Super. 501 (App. Div. 2008) (concluding that holding someone in a headlock for thirty seconds or less was a simple assault, even though the victim never said he was in pain).

Defendant appealed to the Law Division. She attempted to argue that there was insufficient evidence in the record to support these criminal convictions; she stressed there was no proof of her intent, or mens rea. She also argued that there was insufficient proof that R.G. was incompetent, contending that the stipulation made in the municipal court was insufficient to prove that he was incompetent for purposes of N.J.S.A. 2C:24-7.

The Law Division judge did not resolve any of these legal issues. She merely observed that the record contained "sufficient credible evidence" so that she would "affirm" the decision of the municipal court judge. This, however, is not the function of a Superior Court judge presiding at a trial de novo.

On a trial de novo, the Law Division judge is to make independent findings of fact and conclusions of law, making his or her own individual determination whether a defendant is guilty of the offenses charged. In doing so, he or she is to give due deference to the credibility findings of the municipal court judge, but that deference with respect to credibility is not determinative of the result. The Law Division judge does not, in a trial de novo, sit in an appellate capacity, reviewing the actions of the municipal court judge. Rather, the Law Division judge sits as a court of the first instance, making his or her own determinations with respect to guilt or innocence.

[The court's] function [on a trial de novo] is to determine the case completely anew on the record made by the municipal court, giving due although not necessarily controlling regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. Additionally, the Superior Court Judge must make his or own findings of fact.

[State v. Thomas, 372 N.J. Super. 29, 31 (Law Div. 2002), aff'd 372 N.J. Super. 1 (App. Div. 2004).]

That did not occur here. The Law Division judge, for instance, made no findings with respect to defendant's purpose at the time of the incident. The municipal court judge found defendant guilty of attempted assault, and a conviction for attempt requires proof beyond a reasonable doubt that a defendant acted purposively. "Attempt expressly requires the culpability requirement of 'purposeful', N.J.S.A. 2C:5-1a(2), i.e., in this case, that defendant acted with a purpose to cause bodily injury . . . ." State v. Ambroselli, 356 N.J. Super. 377, 384 (App. Div. 2003) (footnote omitted); See also State In Interest Of S.B., 333 N.J. Super. 236, 242 (App. Div. 2000); State v. Battle, 209 N.J. Super. 255, 258-59 (App. Div. 1986). Nor did the Law Division judge make any findings or conclusions with respect to the other two charges at issue.

Despite the State's protestations to the contrary during the hearing before the Law Division judge, defendant was entitled to argue that the proofs were legally insufficient to support her conviction even though she had contended in municipal court that the incident had never occurred.

We thus reverse and remand this matter for further proceedings. We do not retain jurisdiction.