STATE OF NEW JERSEY v. CAROLYN SCHWESINGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAROLYN SCHWESINGER,

Defendant-Appellant.

______________________________

July 22, 2014

Submitted May 14, 2014 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 26-08-12.

Greggory M. Marootian, attorney for appellant.

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, the sole issue for our resolution is whether the State proved beyond a reasonable doubt that defendant was operating a motor vehicle at the time she was arrested and charged with driving while under the influence (DUI), N.J.S.A. 39:4 50. On appeal de novo from the Sparta Municipal Court, where the municipal judge found defendant guilty of DUI, the Law Division judge found the evidence persuaded him, beyond a reasonable doubt, the State proved operation. On appeal, defendant contends the evidence was insufficient to prove she operated a vehicle under the influence beyond a reasonable doubt. In addition she contends the State failed to show a nexus between the intoxication and the time of operation of the vehicle. We conclude neither argument has merit. We therefore affirm.

The evidence presented during the trial before the municipal court judge, which the judge credited, was as follows. Sparta Township patrolman, Daniel Elig, responded to a report of an erratic driver from a citizen informant, who apparently followed the vehicle to the driver's residence. That citizen informant was not a witness at trial. When Patrolman Elig arrived at the scene to investigate, he activated his video apparatus, which recorded the entire investigation conducted at the scene. As defendant attempted to exit her vehicle parked in what was later discovered to be her driveway, the officer observed her drop her purse, out of which a bottle of alcohol fell. Defendant tried to kick the bottle under her car. Patrolman Elig also observed that defendant's eyelids were droopy, her eyes were bloodshot and her face was flushed. He also noted the vehicle was warm.

When asked whether she had been driving, defendant initially denied doing so and stated that perhaps her husband had been driving. Defendant's husband eventually came out of the house and approached defendant and the officer. When asked whether he had been driving, he told Patrolman Elig he had been at home and had not driven the vehicle. When questioned again as to whether she had been driving, defendant admitted she had driven the vehicle and she was coming from work. While speaking with defendant, Patrolman Elig noticed defendant's speech was slurred and, at times, incoherent.

Patrolman Elig then conducted a series of field sobriety tests: (1) the one-leg stand; (2) the finger-to-nose test; (3) the walk and turn test; and (4) the horizontal gaze nystagmus test. Defendant failed all of the tests. The video recording depicted defendant almost falling while attempting to perform the one-leg stand, interrupting Patrolman Elig when he was explaining the finger-to-nose test, and again almost falling when attempting to perform the walk and turn test.

Based upon the officer's observations, defendant's admission she had been operating the vehicle, the odor of alcohol emanating from her breath, and defendant's failed efforts at performing the field sobriety tests, Patrolman Elig placed defendant under arrest for DUI. In addition, other motor vehicle offenses were also charged, which are not the subject of this appeal.

Defendant's husband testified that his wife was in their kitchen drinking vodka when he arrived home from work that afternoon and they started arguing about her drinking problem. She left the house and went to the garage. Shortly thereafter he noticed the police car pulling up to their residence and he went outside to speak with the officer. He told the officer he had not been driving and also that his wife had been in the house.

The municipal judge found defendant guilty of driving under the influence and consumption of alcohol in a motor vehicle. The judge based his decision upon the testimony of the police officer, whose testimony the judge credited, defendant's inability to perform the field sobriety tests, the reports from the citizen informant as to the manner of defendant's driving, and the officer's observation of her driving. The judge also found the breathalyzer reading of .21 was a supporting factor upon which the court relied, "but just the observation was enough for this [c]ourt to determine that the defendant did, in fact violate the statute."

Defense counsel took exception to the judge's finding that the officer observed defendant's driving, arguing that the officer testified otherwise. The judge disagreed, but noted defendant admitted operating the vehicle. The court sentenced defendant as a second offender, imposed a two-year loss of defendant's driving privileges, forty-eight hours in an Intoxicated Driver Resource Center, and thirty days of community service. In addition, the court imposed a $70 fine and the requisite fees and penalties.

On appeal de novo to the Law Division, the Law Division judge accorded deference to the municipal judge's credibility assessment of the witness. The judge found that the keys in the ignition and the fact that the vehicle was warm to touch gave rise to an inference of intent to operate the motor vehicle. He also credited the testimony of defendant's spouse, who testified that when he came home, defendant was intoxicated and they argued about her drinking, as indicative of the level of her intoxication at that time. The judge did not find the breathalyzer test results dispositive, but did find the testimony of defendant's spouse "most telling" as it related to defendant's "drinking problem," which had been a source of contention between them.

The Law Division judge found defendant not guilty of consuming alcohol in the car. However, he was convinced she had operated the motor vehicle under the influence. Unlike the municipal judge, the Law Division judge did not consider the information conveyed in the 9-1-1 call as evidence of defendant's operation of the motor vehicle. The judge stated that this evidence was considered for the limited purpose of "establishing how the police came into contact with [defendant.]" In addition, the judge found as a fact that "the police did not see [defendant] operating the motor vehicle, but there is sufficient indicia that the motor vehicle was operated." The judge determined that the "indicia" of operation by defendant included:

[The vehicle] was not operated by her husband, who testified that he didn't operate it. She made the statements with regard to operation. And I am satisfied that she had been operating the vehicle earlier. I'm also satisfied based upon the evidence that the vehicle was warm, it had been recently operated. That [defendant's husband] came home, found her intoxicated. That gives rise to the inference that she was operating the vehicle while she was intoxicated. And, furthermore, the evidence that she was in the vehicle with the vehicle shut off, with the keys in the ignition is evidence from which the court could conclude, standing alone, that she was operating the motor vehicle while under the influence by placing the keys in the ignition[;] that is a sufficient act of operation while she was intoxicated to find her guilty of that offense, coupled with the failure of the onsite field sobriety tests, as well as her performance on the video, the testimony of the police officers and the later breathalyzer reading given in close proximity in time to the actual arrest.

The court re-imposed the sentence issued by the municipal court, giving defendant credit for whatever portion of that sentence defendant had already satisfied. The judge also imposed an additional period for installation of the interlock device, stating that "it would be one additional year plus the year following the expiration of the period of license suspension. So it is two more years with the interlocking device." The present appeal followed.

I.

In a trial de novo, the Law Division is obliged to "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In the context of a trial de novo, the Law Division

does not affirm or reverse what occurred in the municipal court. Rather, the . . . judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made. . . . A trial de novo by definition requires the trier to make his own findings of fact.

[State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).]

Our own standard of review on appeal from a trial de novo in the Law Division is a markedly different standard from that applied by the Law Division judge. Unlike the Law Division, we do not make our own findings of fact and our standard of review is a deferential one. State v. Locurto, 157 N.J. 463, 474 (1999). "[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." Ibid. The Court observed, "[u]nder the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

When we review the findings of the Law Division, our task is "restricted to the test of 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 472 (alteration in the original)(quoting State v. Barone, 147 N.J. 599, 615 (1998)). With these principles in mind, we turn to a review of the proceedings in the Law Division.

II.

Operation or intent to operate a motor vehicle is an element of the offense the State must prove beyond a reasonable doubt. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). The term "operates," as set forth in N.J.S.A. 39:4 50(a), has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Sweeney, 40 N.J. 359, 360 61 (1963); Ebert, supra, 377 N.J. Super. at 10. "Operation may be proved by any direct or circumstantial evidence-as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). In determining what constitutes operation, our courts have adopted a practical and common sense approach. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).

The term "operates," as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. Tischio, supra, 107 N.J. at 513. There are three ways to prove "operation": (1) "actual observation of the defendant driving while intoxicated," (2) "observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated," or (3) admission by the defendant. Ebert,supra, 377 N.J. Super. at 10-11 (citations omitted). "Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). So measured, we are satisfied that the evidence in this case established defendant's "operation" of the vehicle "while intoxicated."

Here, the evidence revealed that within minutes of the report that defendant had been observed operating a vehicle erratically and pulling into a driveway, police arrived at defendant's residence and found her attempting to exit a vehicle parked in the driveway. She dropped her purse, out of which a bottle of alcohol fell, which she tried to kick under the car. Her face appeared flushed, she exhibited bloodshot eyes, and when she spoke, she did so in a slurred manner. The investigating officer detected an odor of alcohol emanating from her breath as she spoke. Defendant eventually admitted she had operated the motor vehicle and was coming from work. The vehicle was warm and the keys were in the ignition. She also failed a series of field sobriety tests. Finally, her husband denied having operated the vehicle.

A conviction may be based entirely upon circumstantial evidence, if that evidence convinces the trier of fact of a defendant's guilt beyond a reasonable doubt. United States v. Bobb, 471 F.3d 491, 494 (3d. Cir. 2006)(stating that the prosecution may bear its burden of proving a defendant's guilt beyond a reasonable doubt "entirely through circumstantial evidence"). "'[I]ndeed in many situations circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).

We discern no basis to disturb the Law Division judge's decision. We are satisfied there is sufficient credible evidence in the record that proved defendant's operation of the vehicle, within the meaning of N.J.S.A. 39:4 50, beyond a reasonable doubt. See Locurto, supra, 157 N.J. at 474.

As for defendant's remaining claim that there was insufficient evidence showing a nexus between the intoxication and the time of operation of the vehicle, this contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The warmth of the vehicle gave rise to an inference of operation. Along with the fact that defendant was in the vehicle and the keys were in the ignition, there was substantial credible evidence in the record establishing the requisite nexus between defendant's ingestion of alcohol and her operation of the vehicle.

Affirmed.