STATE OF NEW JERSEY v. BRUCE V. DAVIS, JR.

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5976-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRUCE V. DAVIS, JR., a/k/a
BRUCE VICTOR DAVIS, and
BRUCE VICK DAVIS,

     Defendant-Appellant.
______________________________

                   Submitted May 26, 2020 – Decided June 10, 2020

                   Before Judges Fasciale and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 17-05-
                   0345.

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

                   Christine A. Hoffman, Acting Gloucester County
                   Prosecutor, attorney for respondent (Dana R. Anton and
                   Monica A. Bullock, Special Deputy Attorney
                   Generals/Acting Assistant Prosecutors, on the brief).
PER CURIAM

      Defendant appeals from his conviction for fourth-degree stalking,

 N.J.S.A. 2C:12-10(b). We affirm.

      In the summer of 2016, defendant was walking near the victim's home,

stopping to ask her for water. The two started talking about jobs, and he asked

the victim for her email address to forward her a job opportunity. He emailed

her, and the victim subsequently told defendant she was not interested in

communicating with him.

      Defendant then visited the victim's home on several occasions.             In

September 2016, defendant went to the victim's home, asked where the victim

was, and stated that he was taking her with him. After defendant threatened the

boyfriend, he and the victim called police, who told defendant to leave the victim

and her family alone.

      In February 2017, defendant started visiting the victim's home again.

Over the course of a month, defendant would go to the victim's home, ask to see

her, and say he was taking her with him. Defendant also tried to add her as a

friend on Facebook, and he would send her Facebook messages containing

attachments, which the victim described as "love songs."




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      He was indicted for fourth-degree stalking under  N.J.S.A. 2C:12-10(b).

A jury found defendant guilty, and the judge sentenced him to 364 days'

incarceration—time served—and four years' probation. This appeal followed.

      On appeal, defendant argues:

            POINT I

            THE CONVICTION MUST BE REVERSED
            BECAUSE THE INDICTMENT CHARGED A
            REPEALED OFFENSE, BUT THE [JUDGE]
            INSTRUCTED ON THE AMENDED VERSION OF
            THE OFFENSE, WHICH HAS DIFFERENT
            ELEMENTS, AND THE VERDICT DID NOT
            IDENTIFY WHETHER THE JURY CONVICTED ON
            THE REPEALED OFFENSE OR THE AMENDED
            OFFENSE. (Not Raised Below).

            POINT II

            THE CONVICTION MUST BE REVERSED
            BECAUSE THE OFFENSE REQUIRES AT LEAST
            TWO ACTS, AND THE JURY WAS NOT
            INSTRUCTED TO IDENTIFY ANY OF THE ACTS
            ON WHICH IT BASED THE CONVICTION OR TO
            FIND EACH ACT UNANIMOUSLY. (Not Raised
            Below).

      We review defendant's arguments for plain error because he failed to raise

them below. R. 2:10-2. Under this standard, reversal is required if there was an

error "clearly capable of producing an unjust result," ibid., meaning there was

an error "sufficient to raise 'a reasonable doubt . . . as to whether the error led


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the jury to a result it otherwise might not have reached.'" State v. Funderburg,

 225 N.J. 66, 79 (2016) (alteration in original) (quoting State v. Jenkins,  178 N.J.
 347, 361 (2004)); see also State v. Ross,  218 N.J. 130, 143 (2014).

      When analyzing a jury instruction, "plain error requires demonstration of

'legal impropriety in the charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the reviewing court

and to convince the court that of itself the error possessed a clear capacity to

bring about an unjust result.'" State v. Chapland,  187 N.J. 275, 289 (2006)

(quoting State v. Hock,  54 N.J. 526, 538 (1969)).

      We begin by addressing defendant's first argument that the judge gave the

wrong jury instruction. The Legislature amended  N.J.S.A. 2C:12-10(b) in 2009.

Defendant argues the indictment charged him with stalking under the pre-

amendment statute and that his conviction must be reversed because the judge

instructed the jury on the amended statute, rather than the indicted offense.

      The law on the presentment of indictments is well settled. The New Jersey

Constitution provides that "[n]o person shall be held to answer for a criminal

offense, unless on the presentment or indictment of a grand jury[.]" N.J. Const.

art. I, ¶ 8. The New Jersey Supreme Court has stated that

            the right is satisfied where the indictment "inform[s]
            the defendant of the offense charged against him, so

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            that he may adequately prepare his defense," and is
            "sufficiently specific" both "to enable the defendant to
            avoid a subsequent prosecution for the same offense"
            and "'to preclude the substitution by a trial jury of an
            offense which the grand jury did not in fact consider or
            charge[.]'"

            [State v. Dorn,  233 N.J. 81, 93 (2018) (first alteration
            in original) (citations omitted) (quoting State v.
            LeFurge,  101 N.J. 404, 415 (1986)).]

The indictment here satisfied these requirements. It informed defendant about

the charged offense with sufficient detail so that he could adequately prepare a

defense, which is apparent from the trial transcripts.

      The judge and counsel participated in a lengthy jury charge conference.

It is clear to us that the judge never intended to amend the indictment to include

the amended statute's new elements. If he had done so, then he would have been

governed by Rule 3:7-4, which addresses amending indictments under certain

circumstance, providing:

                  The [judge] may amend the indictment . . . to
            correct an error in form or the description of the crime
            intended to be charged or to charge a lesser included
            offense provided that the amendment does not charge
            another or different offense from that alleged and the
            defendant will not be prejudiced thereby in his or her
            defense on the merits. Such amendment may be made
            on such terms as to postponing the trial, to be had
            before the same or another jury, as the interest of justice
            requires.


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However, a judge may not amend "[a]n error relating to the substance or

'essence' of an offense . . . by operation of that [Rule]." Dorn,  233 N.J. at 94.

The degree of a crime is an essential element that must be included in the

indictment and cannot be amended by the judge. Id. at 94-95; see also State v.

Orlando,  269 N.J. Super. 116, 138 (App. Div. 1993) (stating a "trial [judge] may

not amend an indictment to charge a more serious offense"). "[T]he analysis as

to whether an indictment was sufficient and whether an amendment under Rule

3:7-4 was appropriate hinges upon whether the defendant was provided with

adequate notice of the charges and whether an amendment would prejudice [the]

defendant in the formulation of a defense." Dorn,  233 N.J. at 96.

      Before the Legislature amended  N.J.S.A. 2C:12-10(b), the statute read:

            A person is guilty of stalking . . . if he purposefully or
            knowingly engages in a course of conduct directed at a
            specific person that would cause a reasonable person to
            fear bodily injury to [herself] or a member of [her]
            immediate family or to fear the death of [herself] or a
            member of [her] immediate family.

            [(Emphasis added).]

This pre-amendment language appears in the indictment: "[Defendant] did

purposely engage in a course of conduct directed at [the victim] that would cause

a reasonable person to fear bodily injury to [herself] or a member of [her]

immediate family or to fear the death of [herself] or a member of [her]

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immediate family." In 2009, the Legislature amended  N.J.S.A. 2C:12-10(b),

which now reads:

             A person is guilty of stalking, a crime of the fourth
             degree, if he purposefully or knowingly engages in a
             course of conduct directed at a specific person that
             would cause a reasonable person to fear for [her] safety
             or the safety of a third person or suffer other emotional
             distress.

             [(Emphasis added).]

The amended statute included the words "or suffer other emotional distress."

The parties agreed that the amended statute's "emotional distress" language did

not apply because it was not in the indictment. For the same reason, they also

agreed that the amended statute's "third person" language did not apply .

      Contrary to what was agreed upon at the charge conference, the judge

included the words "third person" and "emotional distress" in the final charge.

He stated:

                   The applicable statute provides in pertinent part
             that a person is guilty of stalking if he purposely or
             knowingly engages in a course of conduct directed at a
             specific person that will cause a reasonable person to
             fear for his safety or the safety of a third person or to
             suffer other emotional distress.

             [(Emphasis added).]




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Although the final charge was not completely consistent with the discussions

during the charge conference, we see no plain error.

      First, the evidence presented at trial demonstrated defendant threatened

the victim's live-in boyfriend, who is also the father of the victim's child. The

judge's misstatement as to "third person" is harmless because defense counsel

conceded that the boyfriend qualified both as a "third person" and as a member

of the victim's immediate family. Second, as to emotional distress, the judge

clarified in the charge what the jury had to find beyond a reasonable doubt—

and emotional distress was not in that instruction.           Thus, the final jury

instructions on stalking did not "raise . . . 'reasonable doubt [that the instruction]

led the jury to a result it otherwise might not have reached.'" Funderburg,  225 N.J. at 79 (quoting Jenkins,  178 N.J. at 361).

      In his second argument, defendant contends that neither the indictment

nor the jury instructions identified any specific acts that would constitute a

"[c]ourse of conduct" required under  N.J.S.A. 2C:12-10(a)(1). He argues that

the judge did not give a specific "unanimity instruction," and that this failure

may have led jurors to convict "based on different predicate acts."

      A course of conduct is defined as:

             [R]epeatedly maintaining a visual or physical
             proximity to a person; directly, indirectly, or through

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            third parties, by any action . . . or means, following,
            monitoring, observing, surveilling, threatening, or
            communicating to or about, a person, or interfering
            with a person's property; repeatedly committing
            harassment against a person . . . or threats implied by
            conduct[.]

            [N.J.S.A. 2C:12-10(a)(1).]

Likewise, "[c]ause a reasonable person to fear" means "to cause fear which a

reasonable victim, similarly situated, would have under the circumstances."

 N.J.S.A. 2C:12-10(a)(4).

      The New Jersey Supreme Court has outlined the "essential elements" of a

stalking charge:

            1) [The] defendant engaged in speech or conduct that
            was directed at or toward a person, 2) that speech or
            conduct occurred on at least two occasions, 3) [the]
            defendant purposely engaged in speech or a course of
            conduct that is capable of causing a reasonable person
            to fear for herself or her immediate family bodily injury
            or death.

            [State v. Gandhi,  201 N.J. 161, 186 (2010) (emphasis
            added) (quoting H.E.S. v. J.C.S.,  175 N.J. 309, 329
            (2003)).]

      "Ordinarily, a general instruction on the requirement of unanimity suffices

to instruct the jury that it must be unanimous on whatever specifications it finds

to be the predicate of a guilty verdict." State v. Parker,  124 N.J. 628, 641 (1991).

"The fundamental issue is whether a more specific instruction was required . . .

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to avert the possibility of a fragmented verdict." State v. Frisby,  174 N.J. 583,

598 (2002).

        Generally, a fragmented verdict results when there exists "a genuine

possibility of jury confusion . . . or that a conviction may occur as a result of

different jurors concluding that a defendant committed conceptually distinct

acts." Parker,  124 N.J. at 641. The analysis considers "whether the allegations

in the [charge] were contradictory or only marginally related to each other and

whether there was any tangible indication of jury confusion." Id. at 639. We

examine two factors: "[W]hether the acts alleged are conceptually similar or are

'contradictory or only marginally related to each other,' and whether there is a

'tangible indication of jury confusion.'" Gandhi,  201 N.J. at 193 (quoting Parker,

 124 N.J. at 639).

        "[I]n cases where there is a danger of a fragmented verdict[,] the trial

[judge] must[,] upon request[,] offer a specific unanimity instruction." Frisby,

 174 N.J. at 597-98 (quoting Parker,  124 N.J. at 637). When the defendant fails

to make a request, "we must determine whether the absence of a specific

unanimity charge 'was clearly capable of producing an unjust result.'" State v.

Kane,  449 N.J. Super. 119, 141 (App. Div. 2017) (quoting Frisby,  174 N.J. at
 598).


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      Defendant never requested a specific unanimity charge as to any of the

stalking elements.   Defendant also fails to provide any evidence of juror

confusion. Moreover, the record shows the judge outlined the stalking elements

that the jury had to find beyond a reasonable doubt:

            One, that the defendant purposely or knowingly
            engaged in a course of conduct directed at a specific
            person, and, two, that the defendant's course of conduct
            would cause a reasonable person to fear for his or her
            safety or fear for the safety of a member of his or her
            family.

Given the judge's instruction, there is no error "clearly capable of producing an

unjust result." R. 2:10-2.

      As to defendant's argument that the judge should have emphasized

"specific acts" of "course of conduct," we conclude this argument lacks merit.

R. 2:11-3(e)(2). Contrary to defendant's argument, the judge instructed the jury

on "course of conduct," stating:

                   Course of conduct means repeatedly maintaining
            a visual or physical proximity to a person directly,
            indirectly, or through third parties by any action,
            method, device, or means, following, monitoring,
            observing, surveilling, threatening, or communicating
            to or about a person, communicating harassment
            between, or . . . against a person or conveying or
            causing to be conveyed verbal or written threats or
            threats conveyed by any other means of communication
            or threats implied by conduct or a combination thereof
            direct at or towards a person.

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                     Repeatedly means on two or more occasions.
               Communication means any form of communication
               made by any means, including, but not limited to, any
               verbal    or    written    communication,       [and]
               communications conveyed by any electronic device[.]

               [(Emphasis added).]

It is clear the judge did not commit any error, let alone plain error, in his charge

to the jury.

      Affirmed.




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