On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication December 6, 1996. As Amended.
Before Judges Muir, Jr., Kleiner and Coburn. Coburn, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Coburn
The opinion of the Court was delivered by
COBURN, J.S.C. (temporarily assigned).
The first two counts of the indictment charged defendant with offenses allegedly occurring on June 27 and 28, 1993. Count one charged kidnapping, N.J.S.A 2C:13-1b, and count two charged second degree aggravated assault, N.J.S.A. 2C:12-1b(1). The theory of the assault was that defendant was attempting to cause the victim serious bodily injury.
The events relating to these charges occurred over many hours, to some extent in New Jersey, but primarily in the Commonwealth of Pennsylvania. The jury acquitted defendant of kidnapping but found him guilty of third degree criminal restraint, N.J.S.A. 2C:13-2a, as a lesser included offense, and of second degree aggravated assault. These convictions must be reversed because the trial court failed to charge the jury correctly with respect to its fact-finding responsibilities on the jurisdictional issues.
The remainder of the indictment related to July 6, 1996. The jury found defendant guilty of both offenses as charged, third degree terroristic threats, N.J.S.A. 2C:12-3b (count three) and second degree witness tampering, N.J.S.A. 2C:28-5a (count four). In essence, defendant threatened violence if the victim testified against him. These convictions, as well as those under the first two counts of the indictment, must be reversed because of the trial court's erroneous charge on other-crime evidence.
On June 27, 1993, at about 11:30 p.m., the victim, DeYonka Fletcher, had just returned to the area of her home in Trenton, New Jersey, from a dance recital when the defendant John T. Bragg, a resident of Morrisville, Pennsylvania, drove up in his automobile. Fletcher and Bragg had begun dating around March, 1993. Their testimony with respect to what occurred thereafter differed sharply.
According to Fletcher, on numerous prior occasions, which she described in graphic detail, the defendant had committed acts of physical violence against her, including restraining her in a hotel room. She further testified that during one of the confrontations defendant had punched and attacked her mother. As a result, she had decided to terminate the relationship. The defendant denied the prior violent acts and asserted that on June 27, 1993, he had come to see Fletcher to maintain their relationship.
Fletcher testified that the defendant forced her into his automobile and locked the windows and doors so that she could not get out. Initially he drove briefly around Trenton, during which time he cursed at her and struck her a number of times with his right fist. The defendant claimed she came with him willingly and that he did not strike her in New Jersey.
Defendant drove the victim to his apartment in Morrisville, Pennsylvania. According to her, he forced her upstairs, placed a sofa up against the apartment door, and terrorized her throughout most of the night. She said he punched her and kicked her repeatedly, choked her, and threatened to kill her. The defendant said they initially engaged in sexual relations, that she was always free to leave, and that, at most, he may have slapped her four or five times.
In the morning, they drove back to New Jersey, then to Philadelphia or New York, finally returning to Trenton in the afternoon. She claimed that he hit her a number of times during this part of their trip. At one point he purchased cocaine which he then sold in Bordentown, New Jersey. Defendant let the victim off on the Trenton side of the Morrisville bridge. She ran into her uncle, who sent her home. Thereafter she was taken to the police department where she filed a complaint but refused medical treatment for her swollen face.
On July 6, 1993, defendant entered Fletcher's home. He found her alone on a couch and, according to the victim, threatened to have her and her children killed if she pursued the criminal charges against him. Defendant admitted speaking to her on that date in her home, but he denied making any threats. According to the victim, on two subsequent occasions defendant again threatened harm to her and ...