On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-12-02871-EDV.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Defendant Jason Shepherd appeals from a conviction for simple assault, N.J.S.A. 2C:12-1(a), entered following a three-day bench trial. The trial judge denied defendant's motions for entry of a judgment of acquittal or a new trial, imposed a one- year probationary sentence and ordered payment of applicable fines and assessments. Additionally, the judge ordered the forfeiture of defendant's weapons pursuant to 18 U.S.C.A. § 922.
On appeal defendant argues:
I. BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE LOWER COURT'S DETERMINATION, THE COURT SHOULD REVERSE THE LOWER COURT'S DENIAL OF THE MOTION FOR A NEW TRIAL AND JUDGMENT OF ACQUITTAL.
II. BECAUSE THE VERDICT WAS IMPERMISSIBLY INCONSISTENT, THE COURT ERRED IN FAILING TO ACQUIT DEFENDANT.
Following our consideration of these arguments, in light of the record and applicable law, we affirm.
These facts are taken from the trial record. On August 10, 2008, defendant was involved in an altercation with his then fiancée, "Christine,"*fn1 and her minor sons E.M., age seventeen, and C.M., age fifteen. Christine testified defendant became angry after discovering C.M. broke his weight bench. Defendant told Christine their relationship was over and she and her sons must vacate the home. The argument accelerated. Defendant's attempt to punch Christine was blocked by E.M. A physical altercation then erupted between defendant and E.M., during which defendant struck E.M. After C.M. jumped on defendant's back to impede his ability to strike E.M., defendant tossed him to the ground. E.M. swung a step-stool in the course of the fight with defendant. Christine and her sons attempted to keep defendant, who was outside the residence, from reentering. The police were called.
When State Trooper John P. Hannigan arrived at the scene, he described defendant as "extremely angry, infuriated." He encountered Jason Shepherd, Jr., defendant's son, who appeared "bewildered." Entering the residence, Trooper Hannigan noted Christine appeared uninjured and C.M. was lying face down on the kitchen floor.
E.M.'s testimony mirrored Christine's, except he denied striking defendant. C.M. testified defendant punched him in the face and hit him with the step-stool.
Called as a witness for the defense, James Shepherd, defendant's father, related the events preceding the physical conflict. The parties had been visiting his home when the discovery of the broken weight bench occurred.
Jason, Jr. also testified regarding the events of August 10, 2008. He explained after he told his father C.M. broke the weight bench, E.M. threatened "to beat him up for snitching." Jason, Jr. stated Christine started "punching" his father, who held up his hands in defense. Next, E.M. "tackled" defendant, who pushed him away. C.M. jumped on defendant's back and grabbed his neck. Defendant and E.M. were ...