On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-05-0484.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011 - Decided Before Judges Rodriguez and Grall.
A jury found defendant Jonathan J. Wade not guilty of second- or third-degree burglary, N.J.S.A. 2C:18-2, but guilty of fourth-degree criminal trespass, N.J.S.A. 2C:18-3. The judge sentenced him to a two-year term of probation with fifty-two days in jail, which was the time defendant spent in county jail prior to sentencing. In addition, the judge imposed the appropriate fines, penalties and assessments.
Defendant appeals. Finding no error warranting reversal of defendant's conviction and concluding that his sentence is not excessive, we affirm.
The indictment charged defendant with second-degree burglary, specifically an unprivileged entry of Jeanette Rucker's apartment done with the purpose to commit an offense during which he knowingly or recklessly inflicted bodily injury. Defendant and Rucker knew one another, and the State's theory was that on February 14, 2006, defendant entered Rucker's apartment without her permission or consent and with the purpose of assaulting her.
Defendant and Rucker met in fall 2005. Rucker was studying to become a "health technician" and working part-time at a Kentucky Fried Chicken (KFC) restaurant. Her course work included an externship at Quest Diagnostics, where defendant was employed.
They gave different accounts of their relationship. According to Rucker, they were just friends. Defendant sometimes visited her while she was working at KFC but had never been to her home prior to February 14, 2006. She explained that she had a boyfriend and three children and did not have guests because she was serious about her family life. According to defendant, they had an intimate relationship and had been together at her home and his before he visited her on February 14, 2006.
By both of their accounts, defendant went to KFC on February 13. According to Rucker, defendant harassed her, and the police were called. According to defendant, he went to KFC because Rucker had called him at work during the day and he promised to come there and speak to her at the end of his shift. Rucker's supervisor told him to leave, and the police were called when he said he would wait for Rucker. Both testified that defendant left before the police arrived.
Rucker's and defendant's versions of the events of February 14 are also in conflict. According to Rucker, defendant called her at home in the morning, but she did not answer. After her two oldest children left for school and as she was leaving the apartment to take her youngest child to daycare, defendant opened the screen door and came inside, demanding to know why she had not answered the phone. Rucker told defendant she was leaving and directed him to do the same, but he walked past her and said he was not going anywhere. Rucker left to walk her child to daycare; her father, who was driving by, stopped to give them a ride. After leaving the child, Rucker and her father went to a neighborhood store. Defendant barged in and professed his love for Rucker. Rucker told him to leave and complained that he was embarrassing her. They went outside, and Rucker told defendant she did not love him. Rucker's father took her home.
Rucker started sorting clothes, but she heard banging on her windows. Believing it was defendant, she called his supervisor at Quest and asked her to call defendant and tell him to come to work. Rucker then heard a cell phone ring outside her house and the banging stopped, but defendant did not leave. She heard the door in her living room at the rear of her apartment slide open.
Rucker went to the living room and found defendant standing inside. When she told him to get out, he "stepped over" the couch and "smacked" her. Rucker fell to the floor but jumped up and started swinging at defendant. Defendant punched her, broke a child's chair over her head and blocked her efforts to flee from the apartment. Rucker admitted that she managed to grab defendant by the hand, bite his lip and punch and scratch his face. When she got a knife, he ran out.
Defendant's account was quite different. He called Rucker on the morning of February 14 because she had called him. When they spoke, they "made up." Consequently, he decided to take an early lunch and visit her. After she left for the daycare center with her father, he went to the neighborhood store to buy soda. When Rucker and her father arrived, he introduced himself, which upset both Rucker and her father. Accordingly, he went to Rucker's apartment a second time to calm the situation. After he banged on the window, Rucker opened the sliding door; she had a phone in her hand and told him she was calling Quest. He reached for the phone, but she pulled his wrist and he tripped on the ledge, fell inside and hit the couch. His phone and other items fell out of his pocket.
According to defendant, Rucker laughed at him when he fell, and he responded by telling her that she was not "worth it." Enraged by that remark, Rucker attacked him as he tried to retrieve his phone from the couch. She clawed his face, bit his lip and punched him. She also came after him with a knife, which led ...