On appeal from the Superior Court of New Jersey Law Division, Monmouth County, Docket No. 04-06-1560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...