STATE OF NEW JERSEY IN THE INTEREST OF M.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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

IN THE INTEREST OF

M.D.,

Juvenile-Appellant.

____________________________________

December 3, 2015

Submitted November 17, 2015 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FJ-14-579-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

M.D. (Mark),1 a juvenile, was charged in a complaint with acts, which if committed by an adult, would constitute the offense of simple assault, N.J.S.A. 2C:12-1a(1) (count one), and luring, N.J.S.A. 2C:13-6a (count two). After a trial, the Family Part dismissed the luring charge, but entered a June 24, 2014 order adjudicating Mark a delinquent for committing acts which, if committed by an adult, would constitute simple assault. Mark appealed.2 We affirm.

I.

We discern the following facts and procedural history from the trial record. On February 22, 2014, seventeen-year old J.S. (Joann) received a series of text messages from her ex-boyfriend, seventeen-year old Mark. Mark and Joann had previously dated, but remained friends after their dating relationship ended. Mark began dating D.J. (Debra) in December 2013, and continued to date her in February 2014.

During the evening of February 22, 2014, Mark sent Joann a text message advising her he was coming to her house. He informed Joann that he had been locked out of his house and could not go home until after 9:00 p.m. Joann responded that he "should have a key." Mark replied, "[w]ell, yeah, I don t have one, and I'm coming to your house. . . ."

A short time thereafter, Mark requested that Joann meet him outside of her home. Mark later admitted his purpose in sending Joann the text messages was to set up a fight between Joann and Debra. Joann exited her house and did not see Mark outside. She sent a text message to him, stating she was outside, and he replied by telling her to walk down the street. As she walked down the street, Debra "came out of nowhere" and starting fighting Joann. Joann did not know Debra had been waiting for her.

Mark joined in the altercation. He held Joann's hands, so Debra could hit her. When Joann pulled herself away from Mark's hold, the sweater she was wearing came off. Debra and Joann continued fighting, while rolling on the ground. At one point, when Debra was on top of Joann, Mark grabbed Joann's hair and dragged her along the ground for three to four feet. Joann had braids attached to her actual hair at the roots of her scalp. As Mark dragged her along the ground, Joann's braids and hair were torn from her head.

Debra got off of the ground and began to run away. Mark then pushed Joann's head to the ground. She attempted to strike Mark, but he grabbed her and threw her onto a parked car. Joann felt pain "everywhere" and later went to the hospital for treatment.

A neighbor who witnessed the incident testified that she saw a fight between two females and a male outside of her house. She yelled out from her front door to see if the people needed help, and the male responded, "[n]o, we're okay." She observed the male pull and drag a female, and throw the female "on top of [her] car" which was parked on the street in front of her home. She observed the male hold the female down and put his body on top of her. The neighbor called the local police department because she was concerned.

Debra testified she and Joann had argued over Mark since September 2013. She acknowledged that Joann was unaware there was going to be a fight that evening. She claimed that, as Joann walked towards her, Joann put her "stuff" down by the car and hit her. Debra testified that Mark tried to break up the fight by grabbing Joann's wrists. Debra admitted that Joann's hair was "pulled out." Debra also testified that Mark never struck Joann, pulled her hair, or dragged her on the ground.3

According to Mark, he sent the text messages to Joann because he was "setting up a fight" between her and Debra. He testified that when Joann saw Mark and Debra, she ran towards them and threw the first punch at Debra. He said that Debra threw Joann into the side of a truck and, when the neighbor came outside, he tried to break up the fight because he believed the police were coming.

Mark further testified that he grabbed Joann's hands to get them out of Debra's hair, because Debra was on top of Joann. According to Mark, once the girls were separated, he "grabbed" Joann from behind. Mark denied dragging Joann by her hair or pushing her onto a car.

After the presentation of the evidence, the court found the testimony of Joann and the neighbor to be credible. The court found the testimony of Mark to be incredible and Debra's testimony to be "absolutely incredible." The court further found Mark committed acts which, if committed by an adult, would constitute the offense of simple assault. N.J.S.A. 2C:12-1a(1). The court dismissed the luring charge. Mark was sentenced to a twelve-month probationary term, with thirty days to be served in the Juvenile Detention Center. Twenty days of the custodial term were suspended. This appeal followed.

II.

Mark presents the following argument on appeal

POINT I

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)4

Mark argues there was insufficient evidence presented to sustain the court's finding that he committed a simple assault. He contends that a requisite element of the offense is "[a]n intention to inflict injury," and that the court "made no finding regarding [his] state of mind."

In reviewing a lower court's factual determinations, this court must "give deference to those findings of the trial judge which are substantially influenced by his or her opportunity to hear and see the witnesses and have the 'feel' of the case." State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). When the evidence is "largely testimonial and involves questions of credibility," deference is especially appropriate. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

This court must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record as a whole." S.B., supra, 333 N.J. Super. at 241; See also State v. Locurto, 157 N.J. 463, 471 (1999). If the court's "findings and result meet [that] criteria, our task is complete, and we may not disturb the result . . . ." S.B., supra, 333 N.J. Super. at 241. We may disturb the court's result only if we are "thoroughly satisfied that the finding is clearly mistaken [] and so plainly unwarranted that the interest of justice demand[s] intervention and correction . . . ." Ibid.

A person commits a simple assault if he "attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). See State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008). A person acts purposely when it is his "conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). A person acts knowingly when he is "aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2). A person acts "recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." N.J.S.A. 2C:2-2b(3). Whether a defendant acted purposely, knowingly, or recklessly may be inferred from the totality of the circumstances presented. See e.g., State v. Breakiron, 108 N.J. 591, 605-06 (1987).

Bodily injury is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. "Not much is required to show bodily injury." S.B., supra, 333 N.J. Super. at 244 (finding "bodily injury" was proven even though the victim testified he did not suffer any "particular" pain). "Physical discomfort, or a sensation caused by a kick during a physical confrontation, as well as pain, as that word is commonly understood, is sufficient to constitute bodily injury for purposes of a prosecution for simple assault." Ibid.

"[T]he stinging sensation caused by a slap is adequate to support an assault." Stull, supra, 403 N.J. Super. at 505 (quoting N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997)). "[A] fact-finder, using logic and common sense, can conclude beyond a reasonable doubt that a person who was subjected to a [] forceful touching, like a punch in the face, experienced pain even if that person does not describe the sensation or exhibit a bruise." Stull, supra, 403 N.J. Super. at 506-07. Findings of physical pain based largely on "inferences [] on the proofs of the nature of the contact" have been affirmed. Id. at 507.

We conclude the evidentiary record supports the court's finding that Mark committed a simple assault. The evidence supports the court's finding that Mark purposely, knowingly, and recklessly caused bodily injury to Joann. N.J.S.A. 2C:12-1a. He pulled hair from Joann's head, dragged her by her hair along the ground, and threw her onto a car. She suffered pain as a result and received medical treatment. See S.B., supra, 333 N.J. Super. at 244.

The evidence also supports a finding it was Mark's "conscious object" to cause bodily injury, that he knew his actions would cause the injury, and that he "consciously disregard[ed] a substantial and unjustifiable risk" his actions would cause the injury. N.J.S.A. 2C:2-2b(1)-(3). It was therefore unnecessary for the trial court to make an express finding as to Mark's mental state.

Affirmed.

1 For the sake of anonymity and ease of reference, pseudonyms have been used for the juvenile and the others involved in the incident giving rise to the complaint. See R. 1:38-3(d).

2 M.D. was charged in a separate complaint under Docket No. FJ-14-378-14. That matter was resolved and is not a subject of this appeal.

3 Debra was charged in a juvenile complaint with simple assault and witness tampering. She pled guilty to conspiracy to commit aggravated assault.

4 The State does not contend the argument presented is barred because it was not raised below.