March 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARNOLD M. SHOOBS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4498.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2008
Before Judges Fuentes and Grall.
Defendant Arnold M. Shoobs appeals from a judgment of conviction for simple assault -- a disorderly persons offense, N.J.S.A. 2C:12-1a(1) -- and from a denial of his motion for reconsideration of that conviction. The conviction was entered by the Law Division following that court's de novo review of a conviction entered by the municipal court. Because the competent evidence was inadequate to support the conviction, we reverse.
This court reviews the conviction entered by the Law Division. State v. Johnson, 42 N.J. 146, 157 (1964). The question is whether the findings made by that court "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 162). This court may not weigh the evidence or assess credibility. Id. at 472.
Defendant's mother, Mrs. Shoobs, and Officer Garcia testified for the State. The State also introduced photographs of a wall in Mrs. Shoobs' bedroom that was damaged and of a cut on Mrs. Shoobs' chin. No other evidence was presented.
Mrs. Shoobs called 911 during the early morning hours of June 22, 2004. At trial, she explained that she called because her sons were fighting. When she called 911, she reported that she thought defendant was going to kill her. She feared for her safety because her sons were fighting with one another. She hung up the phone without leaving her name or number, however.
Once her other son put a choke hold on defendant, she felt relieved and was no longer frightened.
According to Mrs. Shoobs, when Officer Garcia responded to the 911 call, she was downstairs. She did not recall telling Officer Garcia that defendant had slammed her bedroom door and had broken the molding or that he had hit the wall with the phone that was on her nightstand. Mrs. Shoobs admitted that she saw gouges on her wall that day but denied knowing who caused the damage. She said that she "might" have told Officer Garcia that defendant hit the wall with the phone. She also admitted that she sustained a "slight" cut on her chin but denied telling Officer Garcia that defendant hit her with the phone. She explained that when she got up from bed, the phone "whizzed by" her and "made a small cut." In her view, if she had stayed in bed where she was, the phone would not have touched her at all.
When asked about discrepancies between her testimony and what she told Officer Garcia, Mrs. Shoobs said she was not thinking clearly when she spoke to Officer Garcia because she was "upset" and "hysterical." At trial, she could not say if the phone was thrown or if one of her sons knocked it out of the other's hand.
Officer Garcia testified about what Mrs. Shoobs said when the police arrived at her home. At that time, Mrs. Shoobs told Officer Garcia that she and defendant argued, that he hit the wall of her bedroom with the phone and unintentionally hit her with the phone while she was trying to get it away from him. According to Officer Garcia, Mrs. Shoobs claimed that she was too upset to provide a written statement at that time and never did provide a written statement.
At the close of the State's case, defendant moved for a judgment of acquittal. The motion was denied. Defendant did not present any evidence. On the basis of the evidence set forth above, the Law Division found, beyond a reasonable doubt, that defendant recklessly caused his mother's injury.
The competent evidence is inadequate to support a finding of guilt beyond a reasonable doubt. The judge relied on Officer Garcia's testimony about the statements Mrs. Shoobs made on the day of the incident. But those inconsistent statements of Mrs. Shoobs, who was the State's witness, were not admissible, because the statements were not "contained in a sound recording or in a writing made or signed by the witness" or "given under oath subject to the penalty of perjury." N.J.R.E. 803(a)(1). Without Mrs. Shoobs' inadmissible hearsay statements, there is no evidence that would support a reasonable inference that defendant injured his mother or did so recklessly, acting with conscious disregard of a substantial and unjustifiable risk of causing bodily injury. N.J.S.A. 2C:12-1(a)(1); N.J.S.A. 2C:2-2(b)(3). See R. 2:10-2.
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