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State v. Brannon

March 03, 2004


On certification to the Superior Court, Appellate Division, whose opinion is reported at 358 N.J. Super. 96 (2003).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this criminal appeal, the Court examines the requirement in N.J.S.A. 2C:29-2a(3)(a) that "physical force or violence" be used or threatened against a police officer or another in order to convict for third-degree resisting arrest.

Two Trenton Police Officers, Varn and Wilson, were on patrol in an unmarked vehicle when they observed Steven Brannon sitting on a bicycle and drinking beer in public. The officers maneuvered their vehicle in Brannon's direction in order to issue him a summons. After exiting the vehicle, Officer Varn asked Brannon to show his hands. Brannon discarded the beer bottle and began to cycle away. After falling off his bicycle, Brannon attempted to flee on foot. According to Brannon, he shortly tired and stopped running because of the alcohol and crack cocaine in his system.

There are differing versions concerning what happened next. Brannon claims that Officer Varn ordered him to stop and place his hands on his head. When Brannon asked why he was being arrested, Officer Wilson struck him, knocking him to the ground. Brannon was handcuffed by the officers and brought back to his bicycle. While there, Brannon claims he was forced to kneel as the officers searched his backpack. According to Brannon, the officers, without provocation, physically mistreated him.

The officers testified that Brannon ran directly at Officer Wilson, struck him, and ripped the badge and nameplate from Wilson's shirt. In addition, Brannon punched and kicked as the officers attempted to cuff him. The officers claim that Brannon pulled out a closed pocketknife that Officer Wilson dislodged from Brannon's hand by slamming his wrist to the ground while officer Varn kicked the knife out of reach. Brannon continued to kick and punch and it was only after Officer Wilson punched Brannon in the face that the officers were able to subdue Brannon and handcuff him.

A search incident to arrest revealed a pocketknife, a railroad spike hidden in Brannon's sock, plastic baggies, three crack pipes, and $230.50 in cash. Brannon was taken to a local hospital where he received two stitches for a cut over his right eye. Officer Varn suffered only a scrape on his left forearm and Officer Wilson was unhurt. Brannon was charged in a Mercer County indictment with aggravated assault against two police officers (counts one and two); third-degree resisting arrest (count three); possession of a weapon for an unlawful purpose (count four); possession of a weapon under circumstances not manifestly appropriate (count five); and certain persons not to have weapons (count six).

In a bifurcated proceeding, the trial judge gave essentially the model charge on each of the three grading levels of resisting arrest, appropriately molded to the facts. The charge did not define specifically the term "physical force or violence," found in N.J.S.A. 2C:29-2a(3)(a). During deliberations, the jury requested definitions for

"flight," which is required under the statute, and for "physical force or violence." The trial court gave an expanded charge on flight, instructing that running from police was not force or violence. Defense counsel objected to the court's charge on " physical force or violence," claiming that the Blackstone's dictionary definition would have been more appropriate and that the definition too closely mirrored that found in the charge on robbery.

The jury convicted Brannon of third- and fourth-degree resisting arrest, unlawful possession of a weapon, and, in the bifurcated proceeding on the sixth count, possession by a person statutorily barred from having a weapon. Brannon was acquitted on the remaining charges. The trial court denied Brannon's motion for a new trial. Brannon was sentenced as a persistent offender on the third-degree resisting arrest conviction to a discretionary eight-year term. The third- and fourth-degree resisting arrest convictions were merged. The court also merged the unlawful possession and certain persons not to have weapons convictions, imposing an eighteen-month concurrent sentence.

On appeal, the Appellate Division reversed and remanded only with respect to the third-degree resisting arrest conviction. The appellate panel determined that the trial court's supplemental charge failed to capture the main thrust of the statute, which is to link the seriousness of the offense to the substantial risk of danger forcible resistance poses to law enforcement officers and others. The Appellate Division held that trial courts must instruct juries in all prosecutions under N.J.S.A. 2C:29-2a(3)(a) that the use or threatened use of "physical force or violence"

must create or threaten to create a substantial risk of causing physical injury. Because the trial court failed to properly charge the jury, the Appellate Division found reversible error and overturned the third-degree resisting arrest conviction.

The Supreme Court granted certification.

HELD: Based on the legislative history and text of N.J.S.A. 2C:29-2a(3)(a), the "physical force or violence" necessary to convict need not include a substantial risk of causing physical injury to police officers or others.

1. When a statute is clear and unambiguous on its face and only allows for one reasonable interpretation, a court need only look to the statute's literal terms to determine the Legislature's intent. The resisting-arrest statute does not define "physical force and violence." A plain-language assessment demonstrates that the better interpretation of N.J.S.A. 2C:29-2a(3)(a) is that the force or violence necessary to convict need not include a substantial risk of causing physical injury to the public servant or another. (Pp. 9-10)

2. If a statute is not so clear as to preclude all but one reasonable interpretation, a court may look to extrinsic sources such as the statute's purpose, legislative history, and statutory context to ascertain the Legislature's intent. The legislative history of the resisting arrest statute bolsters the Court's holding. The text of N.J.S.A. 2C:29-2a(3)(a) parts ways with the Model Penal Code. The New Jersey Criminal Law Revision Commission's commentary demonstrates that the deviation was deliberate. The legislative history of the statute reinforces the conclusion derived from the Court's textual analysis that conviction under N.J.S.A. 2C:29-2a(3)(a) does not require the actor to create a substantial risk of causing physical injury to anyone. Viewed in its totality, the text, composition, and structure of N.J.S.A. 2C:29-2 reveal an overall legislative purpose to avoid physical confrontations between arrestees, police officers, and the public. The Court can find no legislative intent to require the State to prove a defendant's conduct created a substantial risk of causing physical injury in all prosecutions under N.J.S.A. 2C:29-2a(3)(a). (Pp. 10-14)

3. Because the text and the history of N.J.S.A. 2C:29-2a(3)(a) do not indicate any legislative intent of specialized definitions for "physical force or violence," those words must be given their plain meaning. The trial court's supplemental instruction conformed to the plain meaning of those words and communicated to the jury what is believed the Legislature intended by the phrase "physical force or violence" in the statute. The Court rejects Brannon's contention that "force" and "violence" together implies that "force" may be refined and limited by the word "violence." Absent a clear expression otherwise, the Court understands "force or violence" to mean just that - "force" or "violence." (Pp. 14-16)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for reinstatement of Brannon's judgment of conviction for third-degree ...

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