On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Parrillo and Ashrafi.
Defendant Rolando Betancourt appeals his conviction by a jury on charges of kidnapping and aggravated assault of his wife, and his sentence of forty years' imprisonment on the kidnapping charge. We reverse his conviction for kidnapping. We affirm on aggravated assault.
Only two witnesses testified at trial, a Bayonne police officer and defendant's wife. She testified that on the morning of May 9, 2006, she asked defendant to do laundry. He said no and then spoke to his brother on the telephone about going out. She questioned him about refusing to do laundry and instead going out. She did not want to argue; so she started to leave their apartment. Defendant pulled her away from the door by her hair, told her she was not going anywhere, and threw her into their bedroom. He then pinned her onto the bed, sitting on top of her with his knees holding down her arms, and he hit her about twenty times with a closed fist. After the beating, she tried to get up but blacked out for a while.
When she regained some of her senses and tried again to get up, he told her not to get off the bed. She tried to get up anyway, and he jumped back on top of her and punched her in the nose, causing it to bleed. He then told her repeatedly to get in the corner of the room. She got up and kicked him, attempting to push him into a closet with her foot. He, in turn, prevented her from leaving the room by blocking the door.
Defendant then walked back toward the closet. She took the opportunity to get out of the room, got to a telephone, and called defendant's stepmother pleading for help. He pulled the telephone wire out of the jack and told her she would not leave their apartment alive because he was going to kill her. Defendant then went to put on his shoes. She plugged the phone in and dialed 911. After one ring, defendant pulled the wire out again, and again threatened that she would not walk out of there alive.
When defendant stepped away once again, she grabbed a towel and her purse and ran out of the apartment. An off-duty police officer helped her and directed an ambulance and the police to her a few blocks away from her apartment.
The Bayonne police officer testified that he was directed to an intersection where he saw the victim holding a towel to her bleeding nose. She was crying and had blood on her shirt. She had a bruise to her nose and one of her ears was swollen. She also had discoloration under her eyes. Ambulance personnel were attending to her injuries. He talked to her briefly at the scene and later took a statement from her after she was released from the hospital.
Investigating back in the apartment, the officer saw blood on the pillows, the bed, and a sheet found outside the building that matched the bedding in the apartment. Photographs were taken of the scene.
Meanwhile, the victim was treated in the emergency room of a hospital and released the same day. X-rays and a CAT scan revealed no broken bones or other internal injuries. She was told to rest and take aspirin. Photographs of her injured face were taken at the hospital and two days later at the police station and were admitted in evidence at trial. Also, the emergency room records were admitted in evidence by stipulation.
Defendant was arrested on the day of the incident. In July 2006, a Hudson County grand jury indicted defendant on four counts. Count one charged second-degree aggravated assault in that defendant "purposely did and attempted to cause serious bodily injury" to his wife, in violation of N.J.S.A. 2C:12-1b(1). Count two charged third-degree aggravated assault in that defendant "purposely did attempt to cause significant bodily injury" to her, in violation of N.J.S.A. 2C:12-1b(7). Count three charged first-degree kidnapping in that defendant "unlawfully did confine [his wife] for a substantial period with the purpose to inflict bodily injury on or to terrorize" her, in violation of N.J.S.A. 2C:13-1b. Count four charged third-degree terroristic threats in that defendant "did threaten to kill" his wife, in violation of N.J.S.A. 2C:12-3b.
Trial began with jury selection on Wednesday, March 14, 2007. Opening statements were on the morning of Thursday, March 15. After the two witnesses called by the State testified and exhibits were admitted in evidence, the State rested. Defense counsel moved for a judgment of acquittal on the kidnapping charge under Rule 3:18-1, arguing that the victim never testified about the time period during which she was confined in the apartment, and so, the State had insufficient evidence that her confinement was for a substantial period as required by the kidnapping statute, N.J.S.A. 2C:13-1b. The trial court denied the motion, stating that "reasonable people can differ as to what substantial is in a situation when you're being locked in a room beaten severely for five or ten minutes." The defense called no witnesses, and the attorneys made their closing arguments on the afternoon of Thursday, March 15.
The jury deliberated on Friday, March 16, and reached a verdict shortly before the courthouse was closed at 3:00 p.m. because of snow. The jury found defendant guilty of count two, third-degree aggravated assault, and count three, first-degree kidnapping. It acquitted defendant of count one, second-degree aggravated assault, and count four, third-degree terroristic threats.
On May 25, 2007, the court granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3. It then sentenced defendant to forty years' imprisonment on the first-degree kidnapping charge, with eighty-five percent of the sentence to be served before eligibility for parole under the No Early Release Act, N.J.S.A. 2C:43-7.2. On the third-degree charge of aggravated assault, the court sentenced defendant to a concurrent term of five years' imprisonment with two and a half years to be served before eligibility for parole.
On appeal, defendant makes the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE KIDNAPPING COUNT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH CONFINEMENT FOR A SUBSTANTIAL PERIOD OF TIME.
POINT II THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSES OF CRIMINAL RESTRAINT AND FALSE IMPRISONMENT (Not Raised Below).
POINT III THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION CONCERNING THE EXISTENCE OF A RESTRAINING ORDER WAS INACCURATE, UNDULY PREJUDICIAL, AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not Raised Below).
POINT IV THE COURT'S INSTRUCTIONS TO THE JURY ABOUT THE COURT HOUSE WEATHER RELATED CLOSING AT 3:00 P.M., AND ITS SUGGESTION THAT THEY RETURN A VERDICT WITHIN TWO TO THREE HOURS, WERE UNDULY COERCIVE AND DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW (Not Raised Below).
POINT V THE TRIAL COURT'S FAILURE TO RECHARGE THE JURY ON THE ELEMENTS OF KIDNAPPING OR TO DEFINITIVELY ASCERTAIN THAT THE JURY DID NOT WISH A RECHARGE ON THAT COUNT DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
POINT VI THE PROSECUTOR'S ELICITATION OF VICTIM IMPACT TESTIMONY AND HIS ARGUMENT IN SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
POINT VII THE COURT ABUSED ITS DISCRETION IN IMPOSING A FORTY YEAR EXTENDED TERM SENTENCE ON THIS OFFENSE.
Although sufficiency of evidence on the kidnapping charge is a close question, we conclude that the trial court did not err in denying defendant's motion for a judgment of acquittal. But we also conclude that the trial court erred in failing to give the jury the option of finding defendant not guilty of kidnapping by considering the lesser-included offense of criminal restraint. Consequently, we reverse defendant's conviction for kidnapping and remand that count for a new trial. Our conclusion renders moot defendant's Points V and VII.*fn1
With respect to defendant's other arguments, we conclude that the alleged errors, to the extent shown, are moot as to his conviction for kidnapping and were "not capable of producing an unjust result" in relation to defendant's conviction on aggravated assault. R. 2:10-2. Therefore, we affirm defendant's conviction and sentence on count two, third-degree aggravated assault.
In reviewing a trial court's denial of a motion for judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2881, 2789, 61 L.Ed. 2d 560, 573 (1979)); see State v. Reyes, 50 N.J. 454, 458-59 (1967). The State's evidence should be viewed in its entirety and given "'the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony." State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)).
To determine if a rational jury could have found the essential elements of kidnapping in this case, we look first to the kidnapping statute in our Criminal Code. ...