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State v. Varner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID VARNER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey Law Division, Monmouth County, Docket No. 04-06-1560.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2007

Before Judges Parrillo and Alvarez.

Following a trial by jury with co-defendant Edward DeMaio, defendant David Varner was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and acquitted of fourth-degree witness tampering, N.J.S.A. 2C:28-5.*fn1 Defendant was sentenced to a three-year probationary term, conditioned on serving 364 days in county jail. Defendant appeals, and we affirm.

According to the State's proofs, defendant assaulted Prince Gibson in retaliation for Gibson having had an affair with defendant's girlfriend, Erin O'Leary. Apparently, before the incident on May 11, 2004, defendant, O'Leary, Gibson and his girlfriend Stephanie Orcutt, and DeMaio, were all friends who socialized together. Having learned of the affair, DeMaio informed defendant. Defendant then confronted O'Leary about the affair, and she ultimately admitted having had sex with Gibson. Defendant became angry and began yelling, "I hope you die with AIDS."

On May 11, 2004, DeMaio called Orcutt and advised her that he and defendant were planning to attack Gibson. At the time of the call, Gibson was standing next to Orcutt and overheard the entire conversation. As planned, defendant confronted Gibson down the street from Orcutt's house, but then supposedly had a change of heart and said "forget it, I'm not even mad about it no more . . . ." The group, consisting of Orcutt, DeMaio, defendant and Gibson then retreated to a wooded area in a nearby park where they met up with O'Leary. As Gibson was sitting on a plastic pipe between Orcutt and O'Leary preparing to smoke marijuana, defendant was standing in front of the three pacing back and forth. Suddenly, defendant turned around and kicked Gibson in the face, rendering him unconscious for about two minutes.

Defendant and DeMaio, who had been standing behind Gibson, began joking. When Orcutt attempted to call 9-1-1 on her cell phone, defendant ordered her not to call the cops. Because of the threat, Orcutt hung up, but surreptiously called back and left her phone in her pocket so defendant could not see it. On the 9-1-1 tape, defendant could be heard saying: "Prince is a cool f------ cat" and "he had to f--- my girl. He had to do it. He had to f----- f--- my girl." Defendant was also heard ordering Orcutt: "do not mention my name. I swear to God, do not mention my name" and "[Gibson] f---ed so many girls and f---ed so many guys over, and f---ed so many people, he deserved it."

After defendant and DeMaio left the area with O'Leary, Orcutt spoke to the 9-1-1 dispatcher. Police and paramedics arrived shortly thereafter and transported Gibson to Jersey Shore Medical Center, where he was treated by Dr. Brett Prince, a neuropsychologist. Dr. Prince observed Gibson's "teeth had been broken. There was bruising about the face, swelling about the face, swelling about the lip. He was unstable on his feet. He was very dizzy. He was forgetful." After administering a neurobehavioral status examination, Dr. Prince diagnosed Gibson with a "subdermal hematoma": "[t]here had been some degree of bleeding in the brain" and that "[t]here [was] cognitive dysfunction." Dr. Prince noted "signs of slow processing, reduced attentional hold, visual spatial, visual constructive errors, reduced deficiency in organizational and planning abilities[,]" and opined to "a reasonable degree of medical certainty" that Gibson's injuries were caused by "multiple blows to the head."

Later that evening, police apprehended defendant and DeMaio hiding in a garage at O'Leary's house. One of them admitted to kicking Gibson in the face. Before defendant and DeMaio were taken into custody however, O'Leary had called Orcutt inquiring about Gibson and whether Orcutt had called the police. When Orcutt replied "yes," defendant took the phone and began relating his version of the incident, namely that he "wouldn't have had to kick [Gibson] unless he started hitting me."

At trial, defendant reiterated this account, but in more detail. He denied any plan to jump Gibson and in fact told him "Let's just leave it alone." According to defendant, while hanging out at the park, he began joking, taking a piece of bamboo, placing it at his crotch, and telling Gibson "hey man, whack me off," at which time Gibson supposedly stood up, and swung at defendant, catching him "a little bit on the side of [his] head." Defendant then "kicked [Gibson] to stop [him] because I thought I was going to get hit."

Evidently crediting the State's version, the jury found defendant guilty of aggravated assault. On appeal, defendant raises the following issues for our consideration:

I. THE COURT ERRED IN FAILING TO PROPERLY CHARGE THE JURY AS TO THE LESSER-INCLUDED OFFENSE. (Not Raised Below).

II. DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF DR. BRETT, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION.

A. Dr. Brett's Testimony Exceeded His Level of Expertise

B. Dr. Brett's Testimony Was Based On A Science Not Demonstrated As Accepted By The Scientific Community, Thus, Should Have Been Disregarded

III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS [OF] AGGRAVATED ASSAULT; CONSEQUENTLY THE CONVICTION ON COUNT ONE MUST BE VACATED.

IV. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

V. THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

For the first time on appeal, R. 2:10-2, defendant complains that the trial court's charge on aggravated and simple assault failed to include the grade differences and sentencing impact of each crime. The claim is devoid of merit. The court's instructions adequately advised of the elements of each offense, State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989), and properly distinguished between mere "bodily injury" and "significant bodily injury," sufficiently defining each term. Obviously, counsel considered the charge correct because no objection was ever voiced, and no more, by way of explanation of "grading differences" or "sentencing impact" was required.

As to the sufficiency of the evidence to support the third-degree aggravated assault conviction, N.J.S.A. 2C:12-1b(7), suffice it to say, defendant never moved for a new trial and is therefore precluded from raising the issue now on appeal. R. 2:10-1. In any event, we are satisfied the verdict was reasonable in light of the evidence presented at trial of the nature, extent, and origin of Gibson's injuries. State v. Smith, 210 N.J. Super. 43, 49 (App. Div.), certif. denied, 105 N.J. 582 (1986).

Next, defendant argues that the testimony of the State's expert, Dr. Prince, as to the extent and origin of the victim's injuries, exceeded his qualifications and related to an area of science, neuropsychology, whose general acceptance had not been demonstrated. Counsel objected at trial to Dr. Prince's diagnosis of "subdermal hematoma" as beyond the doctor's expertise. However, when asked, counsel lodged no objection to Dr. Prince's general qualifications as an expert in the field of neuropsychology. In any event, Dr. Prince testified that he has been licensed in the State of New Jersey as a neuropsychologist for ten years and had previously testified as an expert in court approximately fifteen to twenty times. Additionally, he described his area of expertise as follows: neuro psyche is a relatively new field.

It's only about 20 to 25 years old. It specifically deals with the objective diagnosis and treatment of memory learning and attention disorders so we're the primary people who are absolutely the confirmatory providers for this is Alzheimer versus depression. This is a head injury versus someone faking an illness.

Rehabilitate memory disorders meaning, we'll measure it, what's the extent, the specificity of their injuries and can it be fixed or is it going to be permanent? [A]nd we do that on an in patient basis, usually at trauma hospitals or on an out patient basis.

The decision to admit or exclude evidence is within the discretion of the trial court. State v. Torres, 183 N.J. 554, 567 (2005). N.J.R.E. 702 provides for the admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The rule has been interpreted as setting forth three basic requirements for the admission of expert testimony: "'(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.'"

[Torres, supra, 183 N.J. at 567-68 (quoting State v. Berry, 140 N.J. 280, 290 (1995)).]

As to the latter, "[t]he trial court has discretion in determining the sufficiency of the expert's qualifications 'and [its decision] will be reviewed only for manifest error and injustice.'" Torres, supra, 183 N.J. at 572 (second alteration in original) (quoting State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed. 2d 572 (1965)). As to the other requirement, a proponent of expert testimony may establish a field as receiving general acceptance by one of three ways:

First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance.

Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. [Id. at 568 (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]

Here, there was no objection to Dr. Prince's qualifications and, based on his education and training, the trial judge's decision to accept the expert's qualification was not error, much less plain error. R. 2:10-2; State v. Moore, 122 N.J. 420, 458-59 (1991). Moreover, Dr. Prince's testimony was necessary to aid the jury in determining whether the victim's injuries were "significant," inasmuch as "significant bodily injury" is an element of aggravated assault. See N.J.S.A. 2C:12-1b. Further, the expert's opinion of the nature, extent and origin of the victim's injuries was certainly within his area of expertise. And lastly, the area of expertise to which Dr. Prince testified -- neuropsychology -- has been generally accepted by the courts of this State. See, e.g. State v. Wakefield, 190 N.J. 397, 444-45 (2007); State v. DiFrisco, 174 N.J. 195, 217 (2002); State v. Papasavvas, 163 N.J. 565, 580 (2000); State v. Bey, 161 N.J. 233, 249 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). Given satisfaction of all the requisite criteria, there was no error, much less plain error, in the admission of Dr. Prince's testimony.

Affirmed.


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