STATE OF NEW JERSEY v. DAMION BEEPUT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4241-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMION BEEPUT, aka MICHAEL S.

STEWART, DAMIEN BEEPUT.

Defendant-Appellant.

____________________________________________

November 26, 2012

Submitted September 19, 2012 - Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-04-1051.

JosephE. Krakora,Public Defender,attorney forappellant (JacquelineE. Turner,Assistant DeputyPublic Defender,of counseland onthe brief).

ChristopherJ. Gramiccioni,Acting MonmouthCounty Prosecutor,attorney forrespondent (PatriciaB. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor,of counseland onthe brief).

PER CURIAM

Following a bench trial, defendant Damion Beeput was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) count three). The judge granted the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed the following sentence: on count one, ten years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; on count two, a concurrent five-year term of imprisonment; and, on count three, a concurrent eighteen-month term of imprisonment. The judge ordered that these sentences run consecutive to a sentence defendant was then serving.

Defendant raises the following issues on appeal:

POINT I

THE JUDGE BELOW ERRED IN CONVICTING THE DEFENDANT OF SECOND-DEGREE AGGRAVATED ASSAULT, AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT MR. BEEPUT ATTEMPTED TO CAUSE SERIOUS BODILY INJURY

POINT II

THE DEFENDANT'S SENTENCE IS EXCESSIVE

We have considered these arguments in light of the record and applicable legal standards. We affirm.

On February 24, 2008, defendant was incarcerated at the Monmouth County Correctional Institution awaiting sentence having pled guilty to a controlled dangerous substance (CDS) offense. Scott Bedle, a corrections officer, testified that another inmate, George Hancock, was brought into section "A1" of the jail, a location where inmates were housed after initial processing. At approximately 7:45 p.m., while Hancock was watching television in the communal "day space," Bedle saw Hancock "jump[] out of his seat" and begin fighting with defendant. Hancock "went right to the floor" with defendant "[o]n top of him" striking Hancock with "[c]losed fists." After the men were separated, Bedle saw Hancock's skin "was pretty much peeling off the back of his neck." Defendant was wearing "yellow latex gloves" and shouting "[t]hat's what you get for [twenty] years . . . ."

Officer Thomas Huggan was also on duty at the time. He testified to seeing defendant "around the microwave." Shortly thereafter, Huggan saw Hancock "jump out of his chair." A fight ensued, and, after the men separated, Huggan noticed that Hancock's clothing was wet, his "skin was lifting off his neck area and he was bleeding." Huggan had pieces of Hancock's flesh on his arm. Officer James Walters also responded to the A1 area. He saw defendant in handcuffs in the "sallyport," and Hancock was "standing there bleeding, and it looked like his skin was melting off of him." Defendant was yelling, "You got me [twenty] years, you hurt me, I hurt you just like you hurt me."

Jennifer DeBellis, a nurse employed by an outside company that provided medical services to the jail, testified that Hancock "was first treated in the medical unit, and then once he was stabilized he went to the infirmary where [she was]." He was "hysterical" "[b]ecause of his anxiety and pain . . . ." DeBellis treated his burns and administered pain medications.

Dr. Kabeeruddin Hashmi was the medical director at the correctional center. He responded to the facility at approximately 10:00 p.m. and treated Hancock, who was "in pain to his shoulders and his neck" and had suffered "second-degree burn[s]." Hashmi further noted:

Generally second[-]degree [burns] heal very well. There could be some scarring. It's not always the case . . . . There's potential for infection that can occur, probably the most serious consequence. . . . [I]f it's over a joint, there could be some limited range of motion . . . ."

. . . .

[I]f the scar develops, it will be permanent.

Hashmi prescribed "narcotics" for Hancock's pain and treated him with an "antibiotic ointment." On cross-examination, Hashmi acknowledged that second-degree burns usually "heal very well," there usually is no scarring and, while there is discoloration "[m]ost of the time," the discoloration would generally fade after "several years."

Hancock testified that he "dozed off" after being brought into the day room in section A1. He awoke when defendant began punching him. Hancock "felt a burning sensation" on his face, neck and upper body and was in tremendous pain. Hancock was treated subsequently at St. Barnabas Hospital's burn center. He continued to take pain medication for one month, had his wounds cleansed and re-bandaged regularly and wore a special "body suit" to limit scarring and keloid formation. The judge inspected Hancock's body in court.

Investigator Selma Morris of the Monmouth County Sheriff's Office responded to the correctional facility to investigate and collect evidence. At trial, she identified photographs of blood on the floor of A1 and a pair of yellow latex gloves she recovered from near the microwave oven. Morris was also able to retrieve audiotapes of phone calls defendant made from the jail. The transcripts of these calls are not in the appellate record, but it is undisputed that, in these calls both before and after the incident, defendant incriminated himself in the assault on Hancock. We refer below to the judge's specific references to excerpts from the tapes.

At the close of the State's case, defendant moved for a partial judgment of acquittal, contending that the State failed to prove he caused "serious bodily injury." See N.J.S.A. 2C:12-1(b)(1) ("A person is guilty of aggravated assault if he: . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]"). Defense counsel specifically argued:

There are two parts [to the statute] . . . there's the attempt to cause and . . . there's the actual causing. . . . [O]n the prong as it pertains to causing serious bodily injury, I would ask your Honor to dismiss that half of the charge. That's all.

The judge denied the motion.

Defendant testified on his own behalf. Hancock was his best friend, but defendant was upset because he believed Hancock had planted drugs on the back patio of the home defendant shared with his mother. This led to defendant's arrest and, because he was told by detectives that his mother was going to be incarcerated, defendant pled guilty.

Defendant admitted making the phone calls from the jail that were recorded and played at trial. He "thought about using the water" because he wanted to "shock" Hancock into fighting. Defendant heated up a cup of water in the microwave oven for two minutes, "splashed it on [Hancock]" and started fighting with him. Defendant stated "my intentions [were] just to hurt him like I was hurt." Defendant also acknowledged that, in one of the phone calls, he was "bragging and boasting" to a compatriot that he "scalded" and "fried" Hancock. The defense rested after defendant testified.

The judge reviewed all the evidence and rendered his verdict in an oral opinion on the record. Although Hancock still had a large area of "hyperpigmentation" on his back, the judge concluded that the State failed to prove Hancock suffered serious bodily injury. Turning to whether the State had proven that defendant was "guilty of attempting to cause serious bodily injury," the judge relied on the taped phone calls defendant made from the jail.

In one conversation that occurred before the attack, defendant was "speaking . . . basically with glee, with relish," telling a compatriot, "'I got good news I'm gonna tell you. I'm waiting for [Hancock] to come upstairs [to A1]. I'm about to trick or treat.'" The judge noted that, in the next conversation, defendant told the person, "'I scalded this N. The N. came in here. As soon as he got relaxed, I fried that N. He was pink, then I started ripping him,' meaning punching him. And then [defendant] says, [']The N was crying and screaming. He couldn't even walk.'" The judge concluded beyond a reasonable doubt that defendant "attempted to cause serious bodily injury . . . by pouring . . . scalding liquid on [Hancock] . . . . [T]here was an attempt to cause serious permanent disfigurement." The judge also found defendant guilty of the remaining counts of the indictment.

Before us, defendant contends that his conviction for aggravated assault should be reversed because the State failed to prove beyond a reasonable doubt that he attempted to cause serious bodily injury. We disagree.

As noted, a person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another." N.J.S.A. 2C:12-1(b)(1). "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). "In order to convict a defendant of attempted aggravated assault, the State must prove beyond a reasonable doubt that defendant acted with the culpability required for the crime of aggravated assault, and that defendant acted with the purpose of causing the result that is an element of aggravated assault, namely, serious bodily injury of another." State v. Green, 318 N.J. Super. 361, 371 (App. Div. 1999), aff'd 163 N.J. 140 (2000). Actual serious bodily injury need not occur. Id. at 371-72. "However, where the person does not cause serious bodily injury but only attempts to do so, he is guilty only if the attempt to cause that result is purposeful." State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) (citing N.J.S.A. 2C:5-1(a)).

Here, defendant admitted that he placed a cup of water in a microwave oven, heated it for two minutes and threw it on Hancock's face, neck and upper back without warning. The trial judge concluded that defendant's conduct was purposeful and that, based upon defendant's phone calls from the jail, defendant intended, despite his denial at trial, to cause serious bodily injury to Hancock. Indeed, the judge noted that Hancock was fortunate that the burns did not leave more extensive permanent damage. These findings were amply supported by sufficient credible evidence. See State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 199 (1964)) (noting that in a non-jury setting, "[t]he aim of [appellate] review . . . is . . . to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record"). We affirm defendant's conviction for second-degree aggravated assault.

Defendant argues the sentence imposed was excessive. He concedes that he was eligible for an extended term of imprisonment as a persistent offender. See N.J.S.A. 2C:44-3(a) (defining, with certain limitations, a persistent offender as "a person . . . 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age . . . ."). Defendant argues, however, that "the aggravating and mitigating factors . . . d[id] not support the decision to impose an extended term." Again, we disagree.

Once the statutory eligibility criteria are met, the permissible range of sentences available to the judge "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The judge may sentence the defendant within that range, "subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Ibid. We review the judge's decision under an abuse of discretion standard. Id. at 169-70.

Here, although only twenty-nine-years old, defendant's prior record included convictions for receiving stolen property, burglary, possession of CDS, resisting arrest, eluding, unlawful taking of a motor vehicle and criminal simulation of motor vehicle documents. Defendant also had a prior record of juvenile delinquency adjudications and municipal court offenses. In short, defendant's life was an unbroken chain of criminal activity.

When the events in this case occurred, defendant was in jail awaiting sentencing on his guilty plea to a CDS offense. By the time sentence was imposed in this case, defendant had been sentenced in that case to twelve years' imprisonment with a four-year period of parole ineligibility.

The judge found aggravating factors one, three, six and nine. See N.J.S.A. 2C:44-1(a) (1) (the heinous, cruel, or depraved manner by which the offense was committed); (3) (the risk of re-offense); (6) (the nature and extent of defendant's prior record); and (9) (the need to deter defendant and others). He found no mitigating factors. N.J.S.A. 2C:44-1(b). Although defendant was eligible for a term of imprisonment of twenty years, i.e., the maximum extended term for a second-degree crime, the judge imposed a ten-year sentence.

The judge then considered whether the sentence should run consecutive to that which defendant was currently serving. After considering the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge ordered that the sentence run consecutively.

In reviewing a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, an appellate court will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).

The judge's findings regarding the sentencing factors were supported by the record, the consecutive nature of the sentence was appropriate and the overall sentence does not shock our conscience.

A