STATE OF NEW JERSEY v. ADEGOKE ODINA

NOT FOR PUBLICATION WITHOUT THE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.

ADEGOKE ODINA,

Defendant-Appellant.

______________________________________

February 6, 2014

Submitted November 4, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-005.

Gruber, Schwartz & Posnock, LLP, attorney for appellant (David J. Gruber, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Adegoke Odina appeals from the Law Division's affirmance of his judgment of conviction in Municipal Court for simple assault. We affirm.

I.

The evidence heard by the Municipal Court can be summarized as follows. Defendant and his wife were in the midst of divorce proceedings. On July 12, 2011, defendant's wife drove to the apartment building of David Behul, a very close friend and former neighbor. She telephoned Behul, who came out and talked with her in the parking lot.

Defendant testified that, on that night, he drove to a grocery store adjacent to Behul's apartment to see why his wife bought groceries there. He saw his wife's car and followed it. He watched her talking to Behul, and saw them embrace each other and kiss.

Behul returned to his apartment, and defendant's wife started to drive out of the parking lot. Defendant put his car in reverse and blocked her car. Defendant's wife made a frantic phone call to Behul, informing him that defendant had blocked her car. Defendant later claimed she was blocking him.

Meanwhile, defendant got out of his car, and his wife maneuvered her car and departed. Defendant, attempting to find out with whom she had met, started knocking and ringing the doorbells in the apartment complex. While Behul was on the phone with defendant's wife, defendant rang the doorbell of his apartment, and Behul opened the door.

Behul and defendant provided two divergent accounts of what happened next. Behul testified that when he opened the door, defendant "instantly attacked" him by punching him in the face. Defendant then forced his way into the apartment, pushing Behul into the door, and causing his head to hit the door.1 Defendant kept punching Behul, and slammed his head into the door, a TV stand, and the wall, making two holes in the wall. Defendant then wrestled Behul to the floor. The assault ended when defendant ran out, carrying Behul's cell phone, and Behul got up and asked his neighbor to call 911. Behul was taken by ambulance to the hospital with a bleeding gash on his head requiring stitches, a black eye, bruises on his face and legs, damaged knees, and a sprained right ankle.

Defendant testified that, when Behul opened the door, he felt scared and ambushed because he had seen his wife calling to warn Behul. Defendant asked Behul why his wife had been there, insisting she was still his wife. Behul responded that she was with him now, and punched defendant in the nose. Defendant shielded himself, and no other punches were thrown. The two men "tussled," and Behul tried to drag him into the apartment. Defendant picked up Behul's cellphone by mistake and fled for his own safety, while Behul shouted "you better run." That evening defendant received threatening messages from Behul on the cellphone, and Behul later tried to block defendant's car. Defendant gave Behul's cellphone to police. Defendant sought medical attention several days later, when he went to a doctor who x-rayed his nose which was painful and dripping blood.

II.

After hearing testimony over two days, the Municipal Court found Behul and defendant's wife to be credible, and defendant and his version of events to be "completely lacking in credibility." The court was "satisfied clearly beyond a reasonable doubt that Mr. Odina did in fact, assault Mr. Behul" when Behul opened the door and defendant "immediately struck Mr. Behul causing the serious injuries." The court convicted defendant of the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1). The court acquitted him of theft, N.J.S.A. 2C:20-3(a), after finding that he lacked the intent to steal the cellphone. The court sentenced defendant to one year of supervised probation with anger management training, a seven-day suspended jail sentence, a $1,000 fine, and fees.

Defendant appealed to the Law Division for a trial de novo under Rule 3:23-8. After reviewing the testimony before the Municipal Court, the Law Division agreed with the Municipal Court's credibility determinations, found that defendant was the aggressor and was not acting in self-defense, and reaffirmed his conviction and sentence.

Defendant now appeals to this court, raising the following arguments:

POINT I: THE STATE HAS FAILED TO PROVE THAT MR. ODINA POSSESSED THE REQUISITE INTENT TO CAUSE BODILY INJURY TO ANOTHER AS REQUIRED UNDER N.J.S.A. 2C:12-1(a)(1).

POINT II: ALTERNATIVELY, MR. ODINA SHOULD BE ACQUITTED OF THE SIMPLE ASSAULT CHARGE BECAUSE HIS CONDUCT WAS JUSTIFIED AS SELF-DEFENSE PURSUANT TO N.J.S.A. 2C:3-4(a), AND THE STATE HAS FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THIS SELF-DEFENSE CLAIM DOES NOT ACCORD WITH THE FACTS.

POINT III: MR. ODINA'S INNOCENCE OF SIMPLE ASSAULT, AND/OR HIS SELF-DEFENSE CLAIM, IS EVEN FURTHER BUTTRESSED BY SEVERAL PREJUDICIAL EVIDENTIARY ERRORS COMMITTED BY THE TRIAL COURT; MOREOVER, DUE TO THESE ERRORS, THE TRIAL COURT'S CREDIBILITY DETERMINATIONS SHOULD NOT BE DEEMED CONTROLLING.

III.

Defendant argues that the State failed to offer sufficient evidence to prove beyond a reasonable doubt that he intended to cause bodily injury to another, and that he did not act in self-defense. We reject his arguments.

We must hew to our "exceedingly narrow" standard of review in non-jury cases. State v. Locurto, 157 N.J. 463, 470 (1999). As the Supreme Court has recently reaffirmed, we must determine "'"whether the findings made could reasonably have been reached on sufficient credible evidence present in the record."'" State v. Stas, 212 N.J. 37, 48-49 (2012) (quoting Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). We consider "'the proofs as a whole,'" not just the State's evidence, and will reverse only if "'the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 162).

We owe "'deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Stas, supra, 212 N.J. at 49 (citations omitted). The need for deference is even "'more compelling'" when the Municipal Court and the Law Division have agreed on a factual finding or credibility determination; we "'ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.'" Id. at 49 n.2 (quoting Locurto, supra, 157 N.J. at 474).

A person is guilty of simple assault if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). "'Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). It is undisputed that Behul suffered bodily injury. Therefore, to sustain defendant's conviction, it is sufficient if he caused that injury "purposely, knowingly or recklessly." N.J.S.A. 2C:12-1(a)(1).

Behul's testimony that defendant repeatedly punched him in the face and slammed his head into the door, furniture and walls, was sufficient to support a reasonable inference that defendant acted purposely, that is, with the "conscious object" to cause bodily injury, and knowingly, that is, he was aware that it was "practically certain that his conduct" would cause bodily injury. N.J.S.A. 2C:2-2(b)(1), (2). The evidence was also sufficient to show he acted recklessly by "consciously disregard[ing] a substantial and unjustifiable risk" that bodily injury would result from his conduct, in "a gross deviation from the standard of conduct that a reasonable person would observe in [that] situation." N.J.S.A. 2C:2-2(b)(3).

The evidence was also sufficient to rebut defendant's claim of self-defense. A person can use otherwise unlawful force on another only when he "reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). The State's evidence showed no basis for defendant to have such a belief. Rather, Behul testified that his doorbell rang, he opened his door, and defendant "instantly attacked" him by punching him in the face. "Defendant cannot claim self-defense when he was the aggressor." State v. Moore, 158 N.J. 292, 312 (1999).2 Thus, the State's evidence was sufficient to convict.

We reach the same result considering the evidence as a whole. Indeed, defendant's role as the aggressor was supported by his testimony that he was searching for the man he had seen kissing and embracing his wife, and that he knocked and rang the buzzer at four apartments trying to find that man. Further, defendant's injuries were less severe than Behul's injuries, giving rise to a reasonable inference about who ambushed whom.

Of course, defendant also testified that Behul threw the first and only punch, that defendant merely shielded himself, and that they simply tussled with each other. Defendant's testimony failed to account for Behul's extensive injuries, which were corroborated by photographs, hospital records, and the testimony of a responding officer.

Moreover, neither the Municipal Court nor the Law Division found defendant's testimony credible. Defendant attacks the credibility findings of the Municipal Court and Law Division. The Municipal Court, however, had the opportunity to hear and see the witnesses and to have a superior "feel" of the case. The Municipal Court found Behul and defendant's wife "both related calmly, precisely what happened." It credited their testimony and found that defendant "did commence this incident" purposely to assault Behul. The Law Division agreed, finding defendant went to the apartment to attack Behul, whom "he clearly suspected of having an affair with his estranged wife." Both courts found defendant testified in a manner that was totally not credible. Both courts agreed that defendant's claim that he was "ambushed" by Behul, after defendant had been pounding on doors looking for Behul, was completely lacking in credibility.

Given the concurrent credibility findings made by the Municipal Court and Law Division, we find no "'very obvious and exceptional showing of error.'" Stas, supra, 212 N.J. at 49 n.2 (quoting Locurto, supra, 157 N.J. at 474). To the contrary, we find the evidence strongly supports those credibility findings, and thus firmly establishes defendant's guilt of simple assault.

IV.

Defendant next claims that the triers of fact erred in admitting and excluding evidence. "Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). "However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).

Defendant first complains that the Municipal Court admitted testimony from defendant's wife that she once had a temporary restraining order (TRO) against defendant, and that he had a propensity for violence. However, in the trial de novo, the Law Division expressly disregarded that testimony, stating that it should have been excluded under N.J.R.E. 404(b) and N.J.S.A. 2C:25-29(a). An appeal to the Law Division for a trial de novo "operate[s] as a waiver of all defects in the record" in the Municipal Court. R. 3:23-8(c). As a result, "we 'consider only the action of the Law Division and not that of the municipal court.'" State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011) (quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)), certif. denied, 209 N.J. 430 (2012); see State v. Joas, 34 N.J. 179, 184 (1961).

In any event, defendant did not object to the now-challenged testimony in the Municipal Court. Instead, his counsel elicited more such testimony from both defendant and his wife, and used it to suggest she had a history of making false allegations to police. Additionally, the Municipal Court found "the issue of the restraining order is really of no moment." Thus, defendant thus cannot show plain error.

Defendant argues that if the Municipal Court considered his wife's testimony about the TRO, he should have been allowed to testify about why it was dismissed. However, the Municipal Court allowed him to testify that the TRO was dismissed after trial, and admitted the order so stating.

Defendant next argues that if evidence of his violent past was considered by the Municipal Court, he should have been permitted to show that Behul had a violent past. However, the Law Division disregarded the evidence of defendant's violent past, as set forth above. Moreover, defendant improperly sought to ask Behul and Behul's ex-wife about prior incidents of violence between them. Although a defendant asserting self-defense may "adduce evidence of the victim's violent character . . . to show that the victim was the initial aggressor," "[s]pecific instances of conduct not amounting to prior criminal convictions are not admissible." State v. Jenewicz, 193 N.J. 440, 459 (2008) (citing N.J.R.E. 404(a)(2) and 405).3 Further, the Municipal Court did not permit such evidence regarding Behul because it was "getting very far afield" from the July 12, 2011 assault. "We accord substantial deference to the trial court's 'highly discretionary determination'" to exclude such evidence under N.J.R.E. 403. State v. Cook, 179 N.J. 533, 568 (2004) (quoting State v. Garfole, 76 N.J. 445, 457 (1978)).

Defendant complains that the Municipal judge refused to admit an x-ray of his nose. We agree with the Law Division that the Municipal Court properly excluded the x-ray in the absence of expert testimony about what it depicted.

Defendant's remaining evidentiary arguments concern his wife's testimony. Her testimony, however, was of limited importance. She was not an eyewitness to the assault, and thus could not comment on the central issue of who struck the first blow. She could only testify that on the phone she heard defendant tell Behul to stay away from her, which resembled defendant's testimony, and that she heard sounds suggesting a fight occurred, which was undisputed. Her testimony that she encountered defendant in the parking lot, and called Behul to warn him, was confirmed by defendant's testimony. Her testimony about Behul's undisputed injuries was corroborated by other evidence. As set forth above, her testimony about the TRO and defendant's prior violence was not given weight by the Municipal Court and was disregarded by the Law Division. Thus, her testimony played a limited role at trial.

Defendant claims he was not permitted to show his wife's bias by introducing testimony about her threats and anger on July 11, 2011. In fact, defendant was allowed to testify that, on July 11, his wife yelled, screamed, and cursed at him, and stated he "would be killed by stray bullets outside" and he would be "better off dead than the child support I want to pay her [sic]."4 Defendant was also allowed to call his wife as his witness and question her about that statement. Defendant says he offered an audiotape to corroborate his testimony, but he did not mention it to the Municipal Court. Given the limited role of her testimony, defendant cannot show any error "clearly capable of producing an unjust result." R. 2:10-2.

Defendant claims that he was not permitted to present evidence regarding his wife's history of making false allegations. When defendant was asked about that, however, he began giving a detailed replay of his relations with his wife since he filed for divorce in 2010. The Municipal Court properly sustained an objection, stating that it was Behul, not defendant's wife, who was the complainant, that "[w]e're not going back and forth into credibility of various witnesses," and that "we need to focus on what happened back in July" 2011. Although a party may impeach the credibility of a witness by introducing extrinsic evidence, N.J.R.E. 607, "[t]he trial court still has discretion under N.J.R.E. 403 to exclude extrinsic evidence if the court finds that the probative value of the evidence is substantially outweighed by any of the counterfactors mentioned in that rule." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2014). We view the court as ruling under Rule 403.

When the court sustained the objection, defendant's detailed answer had yet to convey any evidence of falsity. Nor did defendant proffer what testimony or evidence he would introduce if allowed to continue. A party "who does not choose to make the proffer may be foreclosed on appeal from raising the question of the prejudicial effect of the exclusionary ruling unless the record or context of the excluded question clearly indicates or suggests what was expected to be proved by the excluded evidence." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:7-3 (2014); see, e.g., State v. Baluch, 341 N.J. Super. 141, 196-97 (App. Div.), certif. denied, 170 N.J. 89 (2001). Given that no particular evidence was proffered, that defendant appeared poised to rehash the parties' entire divorce proceedings, and that his wife's testimony played only a limited role, the trial court could find that "the probative value of the evidence was substantially outweighed by the risk of undue prejudice and would cause an undue waste of time." See State v. Mance, 300 N.J. Super. 37, 59-62 (App. Div. 1997) (upholding exclusion of evidence that a State witness may have lied about a civil matter, where "he was not even a witness to the main events").

Defendant argues that he would have introduced the transcript of his wife's testimony at the July 13, 2011 TRO proceeding, but he did not mention it to the Municipal Court. Moreover, when he raised the transcript in the Law Division, the judge said, "let's hear it." Counsel read the transcript to the judge, and argued why it was exculpatory and impeaching. Because the Law Division heard the evidence, any error by the Municipal Court is irrelevant. Adubato, supra, 420 N.J. Super. at 175-76.

Defendant also claims he would have introduced audio recordings, transcripts, and incident reports regarding his wife's attempt to get a TRO on December 5, 2011, but that incident occurred after the Municipal Court's ruling on the objection, and he did not mention it in the subsequent Municipal Court or Law Division proceedings.

Given our substantial deference to a trial court's discretionary determination to exclude evidence under N.J.R.E. 403, we find no abuse of discretion or likelihood of an unjust result. See R. 2:10-2.

Affirmed.

1 Defendant's wife, who was still on the phone, heard defendant shout "stay away from my wife," and then heard "boom, boom and the phone cut off."

2 Defendant notes that simple assault is reduced to a petty disorderly persons offense if "committed in a fight or scuffle entered into by mutual consent." N.J.S.A. 2C:12-1(a). However, neither defendant nor Behul testified that the fight was entered into by mutual consent.

3 Defendant does not claim that he knew about Behul's prior violent acts at the time of the assault. Cf. id. at 462-63.

4 When the prosecutor objected to defense counsel's characterization of the wife's statements as a threat, the Municipal Court merely commented that it was hearsay and that the court was "not trying a divorce case here." Defense counsel responded, "Okay, I'll move on." Thus, the testimony was not stricken.