June 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAMEKA L. HARDISON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012 -
Before Judges Messano and Espinosa.
Following a bench trial, defendant Tameka L. Hardison was convicted of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (count one), third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count two), and the disorderly persons offenses of obstructing justice, N.J.S.A. 2C:29-1(a), and disorderly conduct, N.J.S.A. 2C:33-2(a). At sentencing, the judge merged the two disorderly persons offenses into count one and imposed a five-year probationary sentence, a condition of which included 364 days in the Camden County Correctional Facility. On count two, the judge imposed the same sentence to run concurrently with the sentence on count one.
Defendant raises the following points on appeal:
POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
POINT II: THE FINDING OF GUILT MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT A FINDING THAT [DEFENDANT] COMMITTED AGGRAVATED ASSAULT
POINT III: THE TRIAL JUDGE MISAPPLIED THE LAW AND SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THE CHARGE OF FOURTH[-]DEGREE AGGRAVATED ASSAULT, SUA SPONTE, BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT ABBOTT HAD SUFFERED SERIOUS BODILY INJURIES
POINT IV: THE TRIAL JUDGE MISAPPLIED THE LAW BY IMPOSING AN EXCESSIVE SENTENCE
Having considered these arguments in light of the record and applicable legal standards, we affirm.
The testimony at trial revealed that Sergeant James Michael Abbott, the patrol supervisor of the Somerdale police department, was on duty during the evening of May 22 into the early morning hours of May 23, 2009. He responded in full uniform to "a noise complaint coming from" defendant's apartment. After speaking to defendant and having her lower the volume of her music, Abbott resumed patrol. Shortly thereafter, he received another call to return to the location because there was a fight between defendant and her neighbors.
Abbott arrived at about the same time as fellow officer Jacob Henry Rulli. It was after midnight, and the officers responded to apartment 303, the Milton residence. As they spoke to the Miltons, defendant exited her apartment across the hall. Defendant stated "she was going to . . . f---ing kill Mr. Milton and she was going to bring her people from Camden . . . to take care of it." The hallway was only five feet wide, and defendant was "agitated, extremely angry, [and] acting in a very violent manner towards" Milton. Abbott calmed defendant down and ordered her back into her apartment.
As the officers took additional information from the Miltons, defendant re-emerged screaming. Abbott positioned himself to keep defendant from getting at the Miltons. Defendant ran at Abbott "full force" with "both hands up with fists," and struck him in the chest. Abbott advised defendant she was under arrest. With Rulli's assistance and while she continued to struggle, defendant was placed in handcuffs and escorted to the police car.
Defendant remained "enraged" while in the backseat and "continued to scream and yell" when she was placed in the holding cell at headquarters. Abbott tried to calm her down, but defendant told Abbott she knew where he and his family lived, and that "she was going to take care of them." Defendant said she was "going to f--- them up, beat their asses." Abbott felt concerned for his family's safety, testifying that everyone "knows where I live," which was only "263 feet" from defendant's apartment complex and "550 feet" from her apartment. Abbott had frequently seen defendant walking on the street in front of his home.
Rulli testified in a generally consistent manner with Abbott. Defendant did not testify or produce any witnesses.
Although defense counsel made no motion for a judgment of acquittal, her argument in summation was essentially that the evidence was insufficient to prove defendant committed aggravated assault or made terroristic threats. In a comprehensive oral opinion, the judge found otherwise. The judge subsequently imposed sentence as indicated above. This appeal followed.
Defendant argues that the verdict on both counts was against the weight of the evidence. In reviewing the sufficiency of the findings and conclusion of a judge in a non-jury trial, an appellate court must review the record in the light of the contention, but not initially from the point of view of how it would decide the matter if it were the court of first instance. It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.
The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. . . . When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect. [State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964).]
As to the aggravated assault, defendant contends there "was no evidence to prove that [she] intended to injure Abbott or that there was an attempt to cause injury to Abbott." Regarding the terroristic threat charge, she argues her "actions [did] not convey menace or fear of violence as the threat expressed fleeting anger." We disagree.
In State v. Ambroselli, 356 N.J. Super. 377, 384 (App. Div. 2003), we said:
A person is guilty of aggravated assault if he commits a simple assault upon "any law enforcement officer acting in the performance of his duties while in uniform." N.J.S.A. 2C:12-1b(5)(a). Simple assault as charged in this case is defined by N.J.S.A. 2C:12-1a(1) as "attempt[ing] to cause . . . bodily injury to another." Attempt expressly requires the culpability requirement of "purposeful," N.J.S.A. 2C:5-1a(2), i.e., in this case, that defendant acted with a purpose to cause bodily injury to one or more of the officers. In other words, the State was required to prove beyond a reasonable doubt that it was defendant's conscious object to cause bodily injury to an officer. N.J.S.A. 2C:2-2b(1). [(alteration in original) (footnote omitted).]
In In re S.B., 333 N.J. Super. 236, 242-43 (App. Div. 2000), we concluded that because of the principle of "'transferred intent,'" N.J.S.A. 2C:2-3(d), the juvenile could be found guilty of simple assault, but was not guilty of aggravated assault under N.J.S.A. 2C:12-1(b)(5), because his purpose was to kick a fellow student, not his teacher.
However, unlike the facts presented in S.B., the evidence in this case fully supported the judge's conclusion that defendant committed "a meaningful, purposeful, knowing act of pushing the officer midline in the chest." The judge noted that Abbott "felt pain." See N.J.S.A. 2C:11-1(a) (defining "bodily injury" as "physical pain, illness or any impairment of physical condition"). The judge also determined "pushing someone with great force with both hands in the midline of the chest is an attempt to cause bodily injury." See State v. Stull, 403 N.J. Super. 501, 507 (App. Div. 2008) (citing S.B., supra, 333 N.J. Super. at 244) (recognizing "findings of physical pain [may] rely largely on inferences available on the proofs of the nature of the contact"). The evidence fully supported defendant's conviction of aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(5).*fn1
Prior to trial, defendant moved to dismiss the indictment based upon the State's presentation before the grand jury.*fn2 The judge partially granted the request as to count two, essentially redacting the indictment to charge defendant with threatening "to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror . . . ." N.J.S.A. 2C:12-3(a). See State v. Conklin, 394 N.J. Super. 408, 411 (App. Div. 2007) (stating the elements of the crime).
In Conklin, the defendant allegedly left a message on the victim's mother's answering machine threatening to kill the victim. Id. at 409. In reversing the trial court's dismissal of the indictment, we noted that prosecution under section (a) of N.J.S.A. 2C:12-3 was appropriate "where the perpetrator is physically remote from the victim, yet the threat nonetheless was for the purpose of terrorizing the victim." Id. at 412.
Here, the judge noted that defendant threatened both Abbott and his family with crimes of violence. He further observed that Abbott and defendant were familiar with each other, since Abbott lived near defendant and had seen her on the street. Defendant knew Abbott was the father of two daughters, and included them in her threats. The judge concluded that these "specifics . . . are the things that trigger the fear that an ordinary person would have, the terror one would feel when somebody makes a threat . . . ." We agree and affirm defendant's conviction under N.J.S.A. 2C:12-3(a).
Lastly, defendant contends the sentence imposed was excessive. In reviewing a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant contends the judge improperly weighed the aggravating and mitigating factors before imposing sentence. The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
In his written statement of reasons attached to the judgment of conviction, the judge found aggravating factors three, six, eight (as to count two only), and nine. N.J.S.A. 2C:44-1(a) (3), (6), (8) and (9). He found mitigating factor 10. N.J.S.A. 2C:44-1(b)(10). The judge cited defendant's prior criminal history that include disorderly persons offenses "dating back to 1995," as well as four prior indictable convictions for crimes similar to those for which she now again had been convicted. The probationary sentence imposed, with a condition that defendant serve 364 days in the county jail, does not shock our conscience.