Opinion
DOCKET NO. A-1326-12T4
05-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR NORWOOD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-08-1402. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Victor Norwood appeals from his conviction by a jury on charges of eluding and resisting arrest and his sentence of ten years imprisonment. We affirm the convictions and sentence, except that we remand for entry of an order merging the conviction for reckless driving with eluding.
In August 2011, defendant was indicted by a grand jury on two counts: second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). A jury convicted him of both charges in April 2012. The trial judge sitting as trier of fact, see R. 3:15-3, also found defendant guilty of possession of marijuana, N.J.S.A. 2C:35-10(a)(4), and reckless driving, N.J.S.A. 39:4-96.
On October 18, 2012, the court sentenced defendant to ten years imprisonment with five years of parole ineligibility on the eluding charge and a concurrent term of eighteen months for resisting arrest. The court also imposed fines and penalties for both the indictable and the non-indictable offenses, suspended defendant's driver's license for a total of eighteen months, and ordered defendant to pay $6 85 in restitution.
The evidence at trial showed the following facts. On May 6, 2011, Officer Kevin Michael of the Asbury Park Police Department was patrolling in a marked police cruiser during the overnight shift. At approximately 2:40 a.m., he saw a silver Chrysler sedan one block ahead of him on Sewall Avenue. He watched the car turn right onto Memorial Drive without stopping at a stop sign. When the Chrysler made the turn, its tires spun out causing a screeching noise.
Officer Michael followed the Chrysler and, at some point, turned on his overhead lights and began pursuit. The Chrysler turned right onto Monroe Avenue, accelerated to a speed of approximately fifty to sixty miles per hour, and turned off its head and tail lights. The Chrysler swerved back and forth on the road, and sparks flew from the vehicle's undercarriage. The Chrysler then turned right onto Prospect Avenue, again without slowing down or coming to a stop at a stop sign. It continued to swerve until it collided with a minivan parked on Prospect Avenue. The entire pursuit lasted about one-half mile.
The driver of the Chrysler got out of the car and ran into the backyard of a house on Prospect Avenue. Officer Michael yelled at the driver to stop running and that he was under arrest. The driver ran through the yard and attempted to climb over a fence, but Officer Michael caught up and ordered the driver to get off the fence. The driver complied, was arrested, and was identified as defendant.
Defendant was then transported to Asbury Park's police headquarters by Officer Carrie Colbert. At headquarters, Officer Colbert searched defendant and found marijuana in the cuff of defendant's right sleeve.
On appeal, defendant argues:
POINT I
GIVEN THE FACT THAT THE TRIAL COURT WAS THE SOLE DECISION MAKER AS TO WHETHER DEFENDANT WAS GUILTY OF SIMPLE POSSESSION OF MARIJUANA, THE ADMISSION IN THE PRESENCE OF THE JURY OF THE HIGHLY AND UNDULY PREJUDICIAL EVIDENCE THAT MARIJUANA WAS FOUND ON DEFENDANT'S PERSON AFTER ARREST DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
POINT II
THE TRIAL COURT'S MODIFICATION TO THE MODEL CRIMINAL JURY CHARGE ON "INSTRUCTIONS AFTER JURY IS SWORN" OMITTED THE CRITICAL INSTRUCTION ON THE STATE'S BURDEN OF PROOF BEYOND A REASONABLE DOUBT, WHICH WAS NECESSARY FOR THE EVALUATION OF THE STATE'S CASE AS IT WAS PRESENTED AND LATER FOR DELIBERATIONS. (Not Raised Below).
POINT III
THE AGGREGATE SENTENCE OF TEN YEARS, FIVE YEARS WITHOUT PAROLE, IS GROSSLY EXCESSIVE FOR THIS DEFENDANT AND THIS OFFENSE.
A. The court erred in imposing a maximum base term and maximum discretionary parole disqualifier for second-degree eluding.
B. The convictions for fourth-degree resisting arrest by flight and reckless driving must be merged into the conviction for second-degree eluding.
Defendant argues the trial court erred by admitting evidence before the jury of the marijuana found in defendant's possession when the court, not the jury, would decide that charge.
Before the trial began, the judge discussed with counsel the potential use of the marijuana evidence and asked defense counsel if there would be any objection to that evidence being presented during the jury trial. Defense counsel said there would be no objection. The judge then stated he had prepared a decision regarding the admissibility of the marijuana evidence, but he chose not read it into the record because defense counsel had no objection.
Since defendant expressly did not object to the evidence, on appeal he must show plain error in its admission. Plain error requires a showing that the error is "clearly capable of producing an unjust result." R. 2:10-2. Having considered defendant's arguments and the State's response, we find no error at all, let alone plain error, in the admission of the marijuana evidence.
In general, other-crimes evidence is not admissible to prove guilt by criminal predisposition. N.J.R.E. 404(b); see also State v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove one crime by proving another.") (citation omitted). The rationale is that a jury, aware of such evidence, may be tempted to convict, not by reason of proof, but by reason of perception. State v. Gibbons, 105 N.J. 67, 77 (1987). Instead, under N.J.R.E. 404(b), other-crimes evidence may be admitted for specific, non-propensity purposes to prove "motive, opportunity, intent, preparation, plan, knowledge," or to establish a "necessary background" to the charged offenses. State v. Rose, 206 N.J. 141, 181 (2011).
For evidence to be admitted under N.J.R.E. 404(b), it must satisfy the test established by our Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
The Cofield test has been modified through subsequent decisions to account for varying factual circumstances. See, e.g., State v. Lykes, 192 N.J. 519, 535-37 (2007); State v. Hernandez, 170 N.J. 106, 119-26 (2001).
The marijuana evidence in this case clearly passes all four prongs of the test. The first prong, relevance, is closely aligned with the relevance test of N.J.R.E. 401. State v. Gillispie, 208 N.J. 59, 86 (2011); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, Comment 8 to N.J.R.E. 404 (Gann 2014). The marijuana evidence was relevant to a possible motive for eluding the police and as tending to prove defendant's state of mind at the time of his eluding and flight.
The evidence clearly meets prong two of the Cofield test. Because it was offered to establish motive, "similarity is not a requirement for admissibility." State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008); see also State v. Williams, 190 N.J. 114, 131-32 (2007) (the second prong of the Cofield test is not intended for "universal application" and is limited to cases like Cofield). With respect to being close in time to the offenses charged, the marijuana was recovered on defendant shortly after the conclusion of the motor vehicle chase. This clearly is close in time to the charged crimes.
Regarding the third prong, the possession of the marijuana was proven by clear and convincing evidence. The State offered the testimony of the police officer who recovered it from defendant's person as well as a witness to establish chain of custody. Defendant also concedes that the substance taken from his sleeve was marijuana.
The probative value of the marijuana evidence was not significantly outweighed by the risk of its unfair prejudice. While there is some possible prejudice in the jury hearing that defendant was in possession of marijuana, it seems unlikely that a jury would convict defendant of the indictable offenses based upon that testimony in an age where decriminalization of the possession of small amounts of marijuana is becoming more and more socially accepted. The jury would know that possession of marijuana is a minor offense.
Furthermore, the fact that defense counsel expressly consented to the marijuana's admission shows it had little potential for prejudice. See State v. Timmendequas, 161 N.J. 515, 576 (1999) ("Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial . . . ."). Defense counsel used the marijuana evidence to highlight an inconsistency between Officer Michael's testimony before the grand jury and his testimony at trial. It is difficult to see this evidence being of such an inflammatory nature so as to "divert the minds of the jurors from a reasonable and fair evaluation of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (citation and internal quotation marks omitted).
In addition, the court gave a limiting instruction about the marijuana evidence before testimony began at the trial. The judge informed the jury that he was the trier of fact on the marijuana charge and that the jury would not decide it, but the jury would hear that evidence because it was part of what allegedly occurred that night.
The admission of the marijuana evidence, with defendant's express consent, was not error.
Defendant's next argument is that the conviction must be reversed because the trial court omitted the definition of "reasonable doubt" from its jury instructions after the jury was sworn. Defendant never objected to the introductory charge and cites no authority in his brief to support his claim of reversible error.
Before jury selection, the court gave instructions that included the State's burden of proof beyond a reasonable doubt. After the jury was sworn, the court's introductory instructions omitted the portion of the model charge that defined "reasonable doubt" again. At the conclusion of trial, the court's final jury charge fully covered the State's burden of proof and defined "reasonable doubt" in accordance with the standard instructions.
A defendant's failure to object to jury instructions "is considered a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013). However, an appellate court will reverse a conviction for plain error if it is "clearly capable of producing an unjust result." R. 2:10-2.
Plain error exists where there is a "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. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). "Not any possibility of an unjust result will suffice." State v. Noble, 398 N.J. Super. 574, 596 (App. Div.), certif. denied, 195 N.J. 522 (2008). Rather, "[t]he possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
In this case, the court's failure to define "reasonable doubt" for a third time did not misguide the jury about the State's burden and the standard of proof. The definition of "reasonable doubt" and the State's burden of proof were properly charged twice, and both attorneys discussed the concepts in their opening and closing statements. Defendant does not claim the court erred in the definition it used the two times it instructed the jury on "reasonable doubt." The court's omission of the same definition a third time did not cause the jury to reach a result it would not have otherwise reached. It was not plain error.
Finally, defendant challenges his ten-year sentence of imprisonment. He argues the imposition of a maximum term of imprisonment and parole disqualification term is "grossly excessive" for these offenses, emphasizing that his flight from the police did not last for a long time.
On appellate review of a sentence, we may not substitute our judgment for that of the trial court. State v. Natale, 184 N.J. 458, 489 (2005); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we examine the sentencing decision to determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.""An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65, (1984)).]
The trial court need not explicitly reject or accept each mitigating factor offered by the defendant. State v. Bieniek, 200 N.J. 601, 609 (2010). "It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision." Ibid.
Initially, we note that defendant is mistaken in arguing that he received the maximum available prison term. At the sentencing hearing, the court granted the State's motion for an extended term sentence on the ground that defendant was a persistent offender. N.J.S.A. 2C:44-3(a). As a result, defendant could be sentenced up to twenty years imprisonment with a maximum of ten years of parole ineligibility. N.J.S.A. 2C:43-7(a)(3); N.J.S.A. 2C:43-6(b). Defendant's sentence was half the potential maximum sentence. He received the maximum of the ordinary term for the second-degree crime, N.J.S.A. 2C:43-6(a)(2), not the maximum sentence to which he was exposed.
We also reject defendant's other arguments regarding the length of his sentence. The motor vehicle chase was not longer than one-half mile in distance only because defendant crashed the Chrysler into a parked vehicle. Had he not crashed, the chase would likely have lasted longer, putting life and property at greater risk. The length of the sentence was not improper considering the crime and the court's assessment of the aggravating and mitigating factors.
Defendant contends the court erred by finding aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). He argues these factors "apply in almost every case" and should not be found simply because defendant has past convictions.
By the time defendant reached age thirty, he had amassed a lengthy record of municipal court convictions as well as three indictable convictions. The sentencing court noted that "at 30 years old [defendant] just keeps getting arrested, arrested, arrested for committing crimes . . . . At 30 years old he has 20 municipal court convictions, that's almost two for every year he's been old enough to be charged as an adult, and he has 3 Superior Court convictions with a violation of probation . . . he continues to be a danger to public safety." We agree with the court's findings of a clear risk that defendant will commit other offenses and that he needs to be deterred from violating the law.
Defendant also argues the court should have found mitigating factors two and six, N.J.S.A. 2C:44-1(b)(2), (6). There is no basis in the record to find mitigating factor two, that "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). The jury convicted defendant of second-degree eluding, which required it to find that he "creat[ed] a risk of death or injury to any person." N.J.S.A. 2C:29-2(b). Defendant's argument is entirely inconsistent with the jury's verdict. Furthermore, defendant's version of the incident was that he acted under the influence of alcohol. He must have known that driving while intoxicated entails a significant risk of harm. See State v. Tischio, 107 N.J. 504, 519-20 (1987) (referring to drunk drivers as "moving time bombs"), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988). There was no basis for the court to find mitigating factor two.
There was also no error in declining to find mitigating factor six, that "defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained . . . ." N.J.S.A. 2C:44-1(b)(6). While defendant was ordered to pay restitution to the owner of the vehicle he damaged, agreeing to pay or being ordered to pay restitution and actually doing so are not the same. The trial court had reason to doubt that defendant will in fact pay restitution voluntarily and promptly. Defendant is a high school graduate but has no record of employment, owes thousands of dollars in child support, and was being supported by his girlfriend. There is nothing in the record to demonstrate that defendant will actually compensate the victim such that mitigating factor six might appropriately reduce the length of his prison sentence.
The trial court's decision on aggravating and mitigating factors is well supported by the record. Defendant's ten-year sentence is not "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364.
Defendant's final argument is that the trial court erred by failing to merge the resisting arrest and reckless driving convictions into the eluding conviction. The State agrees that the reckless driving conviction should merge with the eluding conviction. The State argues, however, that the resisting arrest charge does not merge with eluding because it was a separate crime that occurred after the eluding. We agree with the State's position.
A defendant cannot be convicted of "two offenses if one is a lesser included offense of the other." State v. Johnson, 203 N.J. Super. 127, 134-35 (App. Div.), certif. denied, 102 N.J. 312 (1985). Where a police chase is the factual predicate for both an eluding and reckless driving conviction, the reckless driving merges with the eluding conviction. State v. Wallace, 313 N.J. Super. 435, 439 (App. Div. 1998), aff'd, 158 N.J. 552 (1999). Here, the basis for the reckless driving and eluding convictions is the same police chase. The trial court should have merged the convictions.
On the other hand, the resisting arrest conviction is not based on the same facts as the eluding conviction. This is not a case like Wallace where the defendant was arrested immediately at the end of the motor vehicle chase. Wallace, supra, 313 N.J. Super. at 439. Defendant ran away from the crashed car to avoid being arrested. He ran into the backyard of a nearby home, attempted to climb a fence, and surrendered only when Officer Michael caught up to him and ordered him to come down off the fence. Resisting arrest on foot was a separate crime. That conviction does not merge with the eluding conviction.
Affirmed, and remanded for entry of an order merging the reckless driving conviction with the eluding conviction and vacating the separate fine and costs imposed on the motor vehicle summons for reckless driving. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION