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State ex rel E.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2010

STATE OF NEW JERSEY IN THE INTEREST OF E.P., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket Nos. FJ-06-1779-08 and FJ-06-2053-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2010

Before Judges Sapp-Peterson and Espinosa.

E.P., who was a seventeen-year old juvenile at the time he was charged with committing an offense, appeals from an adjudication of delinquency for committing an act which, if committed by an adult, would have constituted third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(11), use of a laser sighting device against a law enforcement officer. In a subsequent hearing, he was also adjudicated delinquent in connection with a second complaint charging him with a violation of probation (VOP) for committing the aggravated assault offense, failure to abide by the rules of probation and failure to obey school rules. On the aggravated assault adjudication, E.P. was committed to the Juvenile Detention Center for sixty days. On the violation of probation adjudication, the court terminated E.P.'s probation and committed him to the Juvenile Detention Center for sixty days, concurrent with the disposition imposed on the aggravated assault adjudication. The court stayed execution of the sentences pending appeal. We affirm.

The facts presented to the court during the bench trial disclosed that on April 3, 2008, Officer Michael Phillips of the Millville Police Department was on routine patrol in a marked police vehicle in an area of the city that the officer described as a high crime area. As he turned westbound off of Fifth Street onto Vine, his vehicle was illuminated by a red laser. Officer Phillips circled the block and returned to the location where the illumination occurred. He observed a juvenile looking westbound down Vine in the direction that he had been traveling moments earlier.

Officer Phillips stopped his vehicle and approached the juvenile, subsequently identified as E.P. At that time, E.P. put his hand in his right coat pocket. Officer Phillips testified that when he asked E.P. to remove his hand from the pocket, he observed E.P. move his right hand around to "the middle of his back area, and appeared to be digging in his... waistband." While patting E.P. down, a laser device fell out of one leg of his pants.

E.P. testified that he was using the laser pointer to try to get his dog to come home and indicated that he did not deliberately point the laser at the police vehicle. He indicated that the dog went up the stairs to his home with the police officers after he had been detained. E.P.'s sister testified that E.P. would let the dog out at night and use the laser pointer to get the dog to come home, and his mother also testified that E.P. used the laser to play with the dog. Neither his sister nor his mother was outside at the time Officer Phillips encountered E.P. Officer Phillips testified that he did not see any dog outside as he drove in the area just before his vehicle was illuminated.

In an oral opinion rendered on September 25, 2008, the court found that the State had proved the aggravated assault charge beyond a reasonable doubt. In reaching its decision, the court discounted E.P.'s testimony as lacking credibility. The court also rejected the testimony of E.P.'s family members that E.P. used the laser pointer to play with the dog or get the dog back into the house because there was nothing in the police reports to that effect. Likewise, the court was not persuaded by the laser pointer experiments performed by the defense investigators because a laser pointer other than the one police confiscated from E.P. was used for the experiments and the witnesses "could not say anything about the power of the respective lasers. They could not say anything about the wave lengths of the respective lasers. They could not say anything scientific about the lasers. They could not say anything about the weather conditions being similar in regard to the lasers." The trial judge concluded that there "was no proof whatsoever that their tests were in any way similar to what existed on the night of April [third]." The court viewed the testimony of Officer Phillips and E.P. as the critical evidence and made the following factual findings:

Officer Phillips' report had a mistake in it in regard to a turn. It has no great impact on the [c]court. Other discrepancies shown by [defense counsel] during his cross-examination [had] no big impact on the [c]court in regard to this case. On cross-examination, again... Officer Phillips said, "A sharp red light caught my eye." The report did not say, "illuminated." He said that the light had caught his eye, a sharp red light. He said it a couple of times on cross-examination. [He] [l]ooked into his rear view mirror, observed the red laser in the rear view mirror. He says although it was not in his report, his observations were a little longer [sic] other than just the rear view mirror.

The officer said that the laser was on the side of the car. That was not in his report. [The] [o]fficer admitted that his memory would be better in the days after he wrote his report than now.

That was basically the testimony of the State in regard to this case. Under the circumstances, the [c]court does, in fact, it observed... Officer Phillips' body language, facial expressions, and demeanor. It does, and did appear to the [c]court, and the [c]court does find that Officer Phillips was testifying truthfully. I place great weight on his testimony. I believe his testimony. I believe he was - - and I find he was a very credible witness.

....

I have heard from [E.P.] He admitted that he had the laser pointer. He admitted that he bought it at Spencer's. Ultimately, I'm going to have to do something about the box not being provided in discovery, or at least have a hearing in regard to this matter. He admitted that around the time that this incident occurred, he was outside with the dog. He admitted he was shining the laser pointer on that particular evening trying to attract the dog.

So, basically what we have here, even [defense counsel] has argued in his closing, that perhaps the light was being shone, perhaps the light was being used, but that there was no intent on behalf of his client to do anything inappropriate; that his client was just outside using the laser for - - to attract the dog, which I question, because I don't believe that that particular claim was brought up to the police officers, or to the public defender's investigators, in the appropriate time period, but it has been brought up here at trial tonight.

All of that being said in regard to this case, it leaves me with, again, [E.P.]'s testimony. He says that he did not shine the light towards the car; that he did not do so deliberately; that he was, if anything, trying to get the attention of the dog, a dog that the police never saw there.

Again, as to [E.P.], I have observed his body language, facial expressions and demeanor. I do not place great weight on his testimony in regard to this case. Basically, it is his word against the police officer's word. They were the only two people who were really there in regard to this case. They are the only people who I find have... given credible testimony as to what actually happened on that particular night, and I place great weight on the... testimony of the officer, and for the reasons I have stated, I place much lesser weight on the testimony of [E.P.]; [I] find his testimony to not be credible, and believable, based on my observations of him, his body language, facial expressions, demeanor, the way he carried himself, the way he answered the questions. Under the circumstances in regard to this matter, the person who I find testified truthfully in this case was the police officer.

On October 6, 2008, the court conducted the VOP hearing and, after considering testimony from Bradley Fairchild, the Court Services Supervisor assigned to the Juvenile Unit; Juana Zegarra, a licensed clinical social worker employed by Families Matter; and E.P., the court was satisfied that the State proved the probation violations by the requisite preponderance of the evidence burden of proof. The court stated that E.P.'s delinquency adjudication on the aggravated assault charge was sufficient to sustain the VOP charge, irrespective of the other counts contained in the VOP complaint, but concluded that the State had also proved other probation violations referenced in the complaint. The court rejected E.P.'s argument that his conduct at school, which resulted in his suspension, was not willful because he was not taking his medication due to its side effects, namely, making him feel tired and weak. The court found:

So, clearly, basically, what I have to do today is this[:] [D]o I accept the defense argued by [E.P.] that his voluntarily not taking his medication was a willing act - - was not a willing act on his part? I can't find that. It was a willing act on his part. Any problem that [E.P.] has in regard to this case is not that he could not do something, it is that he did not do something. He did not take his medication. It's not that the medication wasn't available to him would have been the argument [defense counsel] made, it wasn't available on the days he was suspended, but that predates this, as [the assistant prosecutor] brought to my attention[.] [H]e was in school on the 14th and 15th, and actually was in line to get his medication at the time the alleged event occurred which gave rise to the violation if I am to believe his testimony, which I basically do believe.

But, to find that he did not want to grab the girl because he was not on his medication, I do not find that he grabbed the girl because he was not on his medication. It was because of behavior he was exhibiting by his own voluntary act of not taking the medication. And, accordingly, I do not accept the argument by [defense counsel] that it was not a willing act on [E.P.]'s part, that he did not want to grab the girl, that he was not taking the medication, and that it was not an [excusable] violation. It is an inexcusable violation. I find that.

I do in fact find that it's an inexcusable failure to follow terms and conditions of his probation. I find that the need to attend school and to obey school rules is a substantial requirement enclosed as a condition of probation, and in that I found that the violation is not - - there was not an [excusable] failure by [E.P.], that it was in fact a deliberate failure on his part. That his actions of failing to take his medication resulted in his suspension from school. The suspension from school is a violation of his probation, and a failure to obey school rules.

On December 12, 2008, the court issued an amplification of its September 25 oral opinion adjudicating defendant a delinquent on the aggravated assault charge.*fn1 The trial judge reiterated that he did not believe the family's explanation that E.P. was playing with the laser pointer and family dog at the time Officer Phillips drove by and the laser pointer illuminated his vehicle. The court stated that it "placed no weight on the family's explanation as to this situation... the court does not find the family's testimony to be truthful." The present appeal followed.

E.P. raises the following points for our consideration:

POINT ONE

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE JUVENILE HAD COMMITTED AGGRAVATED ASSAULT, THE COURT SHOULD HAVE SUA SPONTE ENTERED A JUDGMENT OF ACQUITTAL. MOREOVER, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).

POINT TWO

THE DECISION THAT THE JUVENILE'S PROBATION SHOULD BE REVOKED WAS ERRONEOUS.

POINT THREE

THE CUSTODIAL TERMS OF SIXTY DAYS FOR THE INSTANT OFFENSES ARE EXCESSIVE AND SHOULD BE REDUCED.

We initially observe that E.P.'s argument that the State's proofs were lacking because the "laser sighting system or device [was not] 'integrated with or affixed to a firearm[,]'" and was not used to "'assist in the sight alignment or aiming of the firearm[,]'" under N.J.S.A. 2C:12-1(b)(11), was not an argument advanced by the defense before the trial court. This argument, however, lacks merit because, as the State urges, its theory of culpability was that E.P. used the laser device in a manner that would cause a reasonable person to believe that it was a laser sighting system or device. N.J.S.A. 2C:12-1(b)(11). We agree that in order to adjudicate E.P. delinquent based upon the State's theory, there is no requirement that the State prove that the device was actually a laser sighting system or device as that device is defined under N.J.S.A. 2C:12-1(b)(11).

As the trial court observed, E.P. admitted that: (1) he was in possession of a laser device on the evening of April 3, 2008; (2) he was outside of his home with the laser device around the time Officer Phillips passed by in his marked police vehicle; and (3) he was using the laser device to attract his dog. The court simply rejected E.P.'s explanation that any illumination of Officer Phillips' vehicle with the laser device was inadvertent. This was a credibility determination in this bench trial that is entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999) (Appellate courts "should give deference to those findings of the trial judge which are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.")

Unlike factual findings, however, we owe no deference to a trial court's legal conclusions, but review them independently. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A person is guilty of aggravated assault if he....

....

... [u]ses or activates a laser sighting system or device, or a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device, against a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. [N.J.S.A. 2C:12-1(b)(11).]

It is evident from a plain reading of the statute that culpability may be established under two scenarios: (1) if the person "uses or activates a laser sighting system or device," which is defined in the statute as "any system or device that is integrated with or affixed to a firearm and emits a laser light beam that is used to assist in the sight alignment or aiming of the firearm;" or (2) if the person uses "a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device[.]" Ibid. Under the latter scenario, which was the theory of culpability advanced by the State here, there is no requirement that the State prove that the system or device was actually integrated with or affixed to a firearm and emitted a laser light beam in assisting in the sight alignment or the aiming of the firearm.

Additionally, because the prefatory language under Section 2C:12-1(b)(11) does not reference any mental state, the State's proof need not include proof that E.P. acted "purposely."

Rather, proof that E.P. acted knowingly is sufficient. See State v. Overton, 357 N.J. Super. 387, 393 (App. Div.) (certif. denied, 177 N.J. 219 (2003) (noting that absence of express reference to mental state in child endangerment and abuse statute implicated the gap filler provisions of N.J.S.A. 2C:2-2c(3) which "require[d] the State to prove defendant acted 'knowingly' to convict him of endangering the welfare of a child and child abuse." (citing State v. Demarest, 252 N.J. Super. 323, 327 (App. Div. 1991)).

E.P. testified that he "started pointing the laser to see if [his dog] would follow it. And, she was across the street, and she followed it. And, she was coming towards this way, and then the police Officer Philips, he came around that way, and that's when he -- I guess, he said I was pointing it at her, or something." He also acknowledged that in pointing the laser, he was pointing the laser in the middle of the street because, in addition to being across the street, the dog was also two houses away from his house. Officer Phillips testified that as he drove in the area where his vehicle was being illuminated, there was no dog in the area. As discussed earlier, the trial court expressly noted that it did "not believe that anyone told the police, and I find so, about this dog story until long after this incident occurred." The court stated:

In regard to this matter, the only argument that [defense counsel] has made which the [c]court could in any way whatsoever consider is that [E.P.] did not intend to do anything to the officer, and his behavior, his furtive movements at the time he was stopped, his hand movements, his failure to turn over the laser pen, or the fact the laser printer [sic] did not go to the police until it dropped out of... the back of his pants after he was stopped.... I believe that [E.P.] was, beyond a reasonable doubt, standing out there, on that night, using the laser pointer for exactly what [Officer] Phillips was afraid of, and that was in a way that was in violation of the law beyond a reasonable doubt.

We are satisfied there is substantial credible evidence in the record to support the trial court's factual findings and that the court properly applied the law to these facts in adjudicating E.P. delinquent for the commission of the aggravated assault. Locurto, supra, 157 N.J. at 470.

E.P.'s remaining claims that the aggravated assault charge should be dismissed as de minimis, that the sentence imposed was excessive and that the court erred in revoking his probation are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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