STATE OF NEW JERSEY v. JONATHAN J. WADE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6014-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN J. WADE,

Defendant-Appellant.

________________________________

February 10, 2011

Submitted January 3, 2011 - Decided

Before Judges Rodr guez and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Gloucester County,

Indictment No. 06-05-0484.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County

Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant Jonathan J. Wade not guilty of second- or third-degree burglary, N.J.S.A. 2C:18-2, but guilty of fourth-degree criminal trespass, N.J.S.A. 2C:18-3. The judge sentenced him to a two-year term of probation with fifty-two days in jail, which was the time defendant spent in county jail prior to sentencing. In addition, the judge imposed the appropriate fines, penalties and assessments.

Defendant appeals. Finding no error warranting reversal of defendant's conviction and concluding that his sentence is not excessive, we affirm.

The indictment charged defendant with second-degree burglary, specifically an unprivileged entry of Jeanette Rucker's apartment done with the purpose to commit an offense during which he knowingly or recklessly inflicted bodily injury. Defendant and Rucker knew one another, and the State's theory was that on February 14, 2006, defendant entered Rucker's apartment without her permission or consent and with the purpose of assaulting her.

Defendant and Rucker met in fall 2005. Rucker was studying to become a "health technician" and working part-time at a Kentucky Fried Chicken (KFC) restaurant. Her course work included an externship at Quest Diagnostics, where defendant was employed.

They gave different accounts of their relationship. According to Rucker, they were just friends. Defendant sometimes visited her while she was working at KFC but had never been to her home prior to February 14, 2006. She explained that she had a boyfriend and three children and did not have guests because she was serious about her family life. According to defendant, they had an intimate relationship and had been together at her home and his before he visited her on February 14, 2006.

By both of their accounts, defendant went to KFC on February 13. According to Rucker, defendant harassed her, and the police were called. According to defendant, he went to KFC because Rucker had called him at work during the day and he promised to come there and speak to her at the end of his shift. Rucker's supervisor told him to leave, and the police were called when he said he would wait for Rucker. Both testified that defendant left before the police arrived.

Rucker's and defendant's versions of the events of February 14 are also in conflict. According to Rucker, defendant called her at home in the morning, but she did not answer. After her two oldest children left for school and as she was leaving the apartment to take her youngest child to daycare, defendant opened the screen door and came inside, demanding to know why she had not answered the phone. Rucker told defendant she was leaving and directed him to do the same, but he walked past her and said he was not going anywhere. Rucker left to walk her child to daycare; her father, who was driving by, stopped to give them a ride. After leaving the child, Rucker and her father went to a neighborhood store. Defendant barged in and professed his love for Rucker. Rucker told him to leave and complained that he was embarrassing her. They went outside, and Rucker told defendant she did not love him. Rucker's father took her home.

Rucker started sorting clothes, but she heard banging on her windows. Believing it was defendant, she called his supervisor at Quest and asked her to call defendant and tell him to come to work. Rucker then heard a cell phone ring outside her house and the banging stopped, but defendant did not leave. She heard the door in her living room at the rear of her apartment slide open.

Rucker went to the living room and found defendant standing inside. When she told him to get out, he "stepped over" the couch and "smacked" her. Rucker fell to the floor but jumped up and started swinging at defendant. Defendant punched her, broke a child's chair over her head and blocked her efforts to flee from the apartment. Rucker admitted that she managed to grab defendant by the hand, bite his lip and punch and scratch his face. When she got a knife, he ran out.

Defendant's account was quite different. He called Rucker on the morning of February 14 because she had called him. When they spoke, they "made up." Consequently, he decided to take an early lunch and visit her. After she left for the daycare center with her father, he went to the neighborhood store to buy soda. When Rucker and her father arrived, he introduced himself, which upset both Rucker and her father. Accordingly, he went to Rucker's apartment a second time to calm the situation. After he banged on the window, Rucker opened the sliding door; she had a phone in her hand and told him she was calling Quest. He reached for the phone, but she pulled his wrist and he tripped on the ledge, fell inside and hit the couch. His phone and other items fell out of his pocket.

According to defendant, Rucker laughed at him when he fell, and he responded by telling her that she was not "worth it." Enraged by that remark, Rucker attacked him as he tried to retrieve his phone from the couch. She clawed his face, bit his lip and punched him. She also came after him with a knife, which led to another struggle. He did not punch, kick or break a chair over Rucker's head.

The officer who responded to Rucker's apartment said it was in "normal" condition. He saw a child's wooden chair that was "on its side with the back if this was the portion of the chair, laying down." Rucker had a cut on her lip and blood on the left shoulder, right chest and right sleeve of her shirt.

Defendant's supervisor at Quest testified on his behalf. She confirmed that Rucker called her on February 14 and asked her to call defendant and tell him to come to work. Rucker told her that they had gotten into a physical altercation. The supervisor made the call, but defendant did not answer. When he came to work the next day or the day after that, he "was a little bruised."

On that evidence, the jurors acquitted defendant of burglary but found him guilty of trespass to a dwelling.

Defendant raises these issues on appeal:

I. THE PROSECUTOR'S IMPROPER REMARKS

DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV and N.J. CONST. (1947), ART. I. PAR. 10. (Not raised below).

II. THE LOWER COURT COMMITTED REVERSIBLE

ERROR BY FAILING TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF DEFIANT TRESPASSING. (Not raised below).

III. THE LOWER COURT SHOULD HAVE GRANTED

DEFENSE COUNSEL'S MOTION TO DISMISS THE COMPLAINT AT THE END OF THE STATE'S CASE.

IV. THE CONVICTION FOR CRIMINAL TRESPASS

WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET ASIDE. (Not raised below).

V. THE IMPOSITION OF A TWO-YEAR

PROBATIONARY SENTENCE WAS EXCESSIVE.

VI. REVERSAL IS REQUIRED IN THIS CASE

BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.

I

Although the defense did not object to the prosecutor's closing argument at trial, on appeal defendant points to two passages that, in his view, warrant reversal of his conviction. He contends that the prosecutor argued facts not in evidence when he said:

Did she come here voluntarily or did she come here because she was subpoenaed? You don't know. You don't know so you can't consider that. Defense counsel would have you believe she's a vengeful woman. Hell hate [sic] no fury.

He also argues that the prosecutor improperly suggested that defendant had a motive to lie and Rucker had none, when he commented:

She denies ever having invited him to her apartment. She denies having sex with him. What does Jeanette Rucker have to gain by lying to you? It's been two years.

Defendant tells you, he's moved to Washington. Her life has gone on. Why should she lie to you? She's not facing charges but Mr. Wade is.

In order to warrant reversal, a prosecutor's remarks in summation "must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Ingram, 196 N.J. 23, 43 (2008) (internal quotations omitted). Additionally, in a case such as this where there was no timely objection, reversal is appropriate only if the defendant demonstrates plain error error "sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." State v. Feal, 194 N.J. 293, 312 (2008) (internal quotations and alterations omitted); see R. 2:10-2. The failure to object is viewed as "indicat[ing] that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

We cannot conclude that the comments at issue here were so clearly and unmistakably improper as to substantially prejudice defendant's right to have the jury fairly evaluate the evidence. It is clear that a prosecutor should limit closing argument to facts inferable from the evidence, and there was no evidence about why Rucker appeared and testified at defendant's trial. State v. Jenewicz, 193 N.J. 440, 472-73 (2008). We do not approve of what appears to be an argument suggesting that Rucker may have been subpoenaed without evidential support in the record, but there is no indication that the prosecutor's implied suggestion was false. Cf. id. at 472-73 (citing and discussing cases in which the prosecutor misstated the evidence or suggested inference that the prosecutor knew were false). In any event, the reason for Rucker's appearance in court is not a matter likely to affect the jurors' deliberations. With respect to the prosecutor's argument contrasting Rucker's and defendant's motive to lie, a prosecutor may ask jurors to draw inferences about a witness's interests in presenting a particular version of the events that are supported by relevant evidence or its absence. State v. Johnson, 287 N.J. Super. 247, 267 (App. Div. 1996).

II

Defendant has not demonstrated error in the jury instruction. He contends that the jurors could have concluded that he entered with permission but "overstayed his welcome by remaining in the alleged victim's apartment after the alleged dispute erupted." The argument overlooks the standard governing sua sponte charges on lesser included offenses and the definition of defiant trespass.

A judge should not give a sua sponte instruction on a lesser-included offense unless it is clearly indicated by the evidence. State v. Savage, 172 N.J. 374, 396-97 (2002). Moreover, a charge on an included offense should never be given "unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:18-1(e).

In pertinent part, defiant trespass is defined as follows:

A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor;

. . . .

[N.J.S.A. 2C:18-3(b) (emphasis added).]

The theory of the evidence suggested by defendant on appeal would not support his conviction of this offense. The statute does not encompass the behavior of one who knows or should know that he has overstayed a welcome. To establish guilt, the State would have been required to prove that the defendant remained in Rucker's apartment after an "actual communication" to him of "notice against trespass." Defendant's argument does not address the elements of the offense. Although the elements might be made out by searching the statutes and patching together selective portions of Rucker's and defendant's testimony and disregarding others, that is not the standard governing a claim of error based on the absence of a sua sponte charge on a lesser-included offense.

III

We have considered the arguments defendant raises in Points III, IV, V and VI and concluded that they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.