July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT S. NORMAN A/K/A VINAY SAMUEL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 09-02-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2012 -
Before Judges Sabatino and Ashrafi.
Defendant Vincent Norman appeals from his conviction by a jury on charges of criminal mischief and attempted escape from a county jail and his sentence of four years imprisonment. We affirm in part and reverse in part.
In February 2009, a Sussex County Grand Jury indicted defendant on the following charges: (count one) third-degree attempted escape, N.J.S.A. 2C:5-1a(1), 2C:29-5a; (count two) third-degree conspiracy to commit escape, N.J.S.A. 2C:5-2, 2C:29-5a; (count three) third-degree criminal mischief, N.J.S.A. 2C:17-3a; (count four) second-degree witness tampering, N.J.S.A. 2C:28-5(a)(1); and (count five) fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(3). Subsequently, the prosecutor voluntarily dismissed counts four and five. Defendant stood trial in May 2010 on counts one through three.
The charges arose from defendant's confinement on July 30, 2008, at the Sussex County Jail on a domestic violence charge that was eventually dismissed. Defendant was placed in a cell with two other inmates, Mayer and Thompson. The following night, the three inmates attempted to break open the window of the fourth-floor cell intending to use bedsheets to escape. Although jail guards heard loud banging during the night, they did not discover the attempt until the next morning when they saw a sheet covering the window. Closer inspection determined that the window was cracked and structurally damaged.
A repairman testified at defendant's trial that the window's security guard was "kind of bowed out" and that the angle iron, which is fastened to the main frame of the window with rivets, had been broken off. A contractor replaced the window at a cost of $2,600 for the glass, as shown by the invoice admitted in evidence at trial, plus an unspecified amount for labor.
Sheriff's investigators questioned the three cellmates about the damaged window. They observed fresh cut marks on defendant's hands and arms and took photographs of the injuries.
After the three inmates were charged with damaging the window and attempting to escape, Mayer and Thompson entered into plea agreements with the prosecution and agreed to testify at defendant's trial. They testified that all three men agreed to escape from the jail and participated in attempting to break the window. Mayer acknowledged that he was in a state of withdrawal from drugs during the incident and the events of that night were somewhat "hazy" in his mind. He testified that defendant was reluctant at first to participate in the plan but then joined in the attempt to break out of the jail.
Thompson testified that the plan to escape was originally Mayer's idea but that defendant fully participated by taking the "L bar" off the window and attempting to pry the window open.
According to Thompson, defendant removed all the rivets from the window, and he saw defendant hit and kick the window. Thompson testified that defendant was cut at some point in his efforts to break the window. The photographs of the cut marks on defendant's hand and arm were admitted in evidence.
Both Mayer and Thompson were vigorously cross-examined by defense counsel. The cross-examination highlighted for the jury Mayer's drug detoxification and Thompson's mental problems.
Defendant was the only witness in the defense case. He testified that the attempted escape was Mayer's idea and that he was not involved in causing damage to the window. He testified that he "begged" Mayer and Thompson to stop and that they threatened to "beat [him] up."
The jury found defendant guilty on all three counts. Subsequently, the court denied defendant's motion for a new trial. For purposes of sentencing, the court merged the conspiracy count with the count of attempted escape and sentenced defendant to concurrent terms of four years in prison on the attempted escape and criminal mischief charges. Defendant was also ordered to pay statutory money penalties as well as restitution of $2,879 for the cost of repairing the window.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN RULING THAT THE STATE WOULD BE PERMITTED TO CROSS-EXAMINE MR. NORMAN WITH CONVICTIONS FOR DISORDERLY PERSONS VIOLATIONS.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. NORMAN'S OTHER BAD ACTS (Not Raised Below).
THE TRIAL COURT'S CHARGE ON CRIMINAL MISCHIEF, WHICH FAILED TO INSTRUCT THE JURY THAT IT HAD TO FIND THE AMOUNT OF PECUNIARY LOSS BEYOND A REASONABLE DOUBT, DIRECTED A GUILTY VERDICT ON THE CHARGE OF THIRD DEGREE CRIMINAL MISCHIEF (Not Raised Below).
THE JURY'S GUILTY VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below). POINT V
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (Not Raised Below). POINT VI
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. NORMAN (Not Raised Below).
Initially, we reject without extensive discussion defendant's argument in Point IV that the jury's verdict was against the weight of the evidence. R. 2:11-3(e)(2). Defendant did not make that argument in his motion for a new trial, and therefore, it is not cognizable on appeal. R. 2:10-1. In any event, whether defendant was guilty of participating in the plan to escape and of damaging the window of his jail cell was dependent on the jury's credibility determinations at trial. In the absence of a "manifest denial of justice," we do not interfere with a jury's credibility determinations and findings of fact from the evidence. State v. Cook, 179 N.J. 533, 565 (2004).
We also find insufficient merit to warrant discussion in a written opinion of defendant's one-page, pro se supplemental brief on appeal arguing that he had no motive to escape and that he could not be convicted of attempted escape because he was detained on a disorderly persons, not an indictable, charge. R. 2:11-3(e)(2).
We find no error in the trial court's ruling permitting the prosecutor to cross-examine defendant regarding his prior disorderly persons convictions. Defendant argues correctly that N.J.R.E. 609 limits use of prior convictions for impeachment purposes to "the witness' conviction of a crime." Disorderly persons offenses are not crimes under the New Jersey Code of Criminal Justice. N.J.S.A. 2C:1-4. Normally, a witness may not be impeached with evidence of juvenile adjudications, traffic offenses, and other non-indictable charges such as disorderly persons offenses. See State v. Rowe, 57 N.J. 293, 302 (1970); State v. Wolak, 26 N.J. 464, 482-83 (1958), cert. denied, 365 U.S. 822, 81 S. Ct. 710, 5 L. Ed. 2d 701 (1961).
In this case, however, defendant "opened the door" to admission of his disorderly persons convictions by testifying falsely on direct examination in an attempt to portray himself as a law-abiding person and one who was inexperienced in matters of incarceration. During direct examination, defendant testified that July 30, 2008, was the first day that he had ever been in jail. Later on direct examination, defendant corrected that testimony and admitted he had previously been in jail in Hudson and Monmouth Counties because he failed to make child support payments and because, he claimed, the police unnecessarily arrested him on a charge of public intoxication.
At the end of his direct examination, the following exchange took place:
DEFENSE COUNSEL: Okay. Did you ever try to escape from the Hudson County Jail?
DEFENDANT: Never. Never. I have no felonies. No prior convictions of anything.
Outside the hearing of the jury, the prosecutor sought permission to cross-examine defendant with evidence that defendant's testimony was false. The State provided documentation showing that defendant had, in fact, been convicted of three disorderly persons offenses. After hearing argument and considering case law, the judge permitted the requested cross-examination over defense counsel's objection because defendant "made that statement . . . the door is opened." However, the judge directed that the State not address the specific nature of the convictions. The prosecutor cross-examined defendant about the three disorderly persons convictions in accordance with the court's ruling.
"The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996); see also Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008) ("the 'open door' doctrine provides an adverse party the opportunity to place evidence into its proper context").
In State v. Buffa, 51 N.J. Super. 218, 227 (App. Div. 1958), aff'd, 31 N.J. 378, cert. denied, 364 U.S. 916, 81 S. Ct. 279, 5 L. Ed. 2d 228 (1960), the defendant testified on direct examination that he had been sent to a reformatory as a juvenile and had been convicted of crimes twice. The prosecutor then cross-examined defendant about his more extensive juvenile record. Id. at 233. On appeal, we did not specifically use the phrase "opening the door," but we held that the cross-examination was permissible because defendant had first raised the matter on direct examination. Ibid. We stated: "Certainly the State is not compelled to stand by helplessly when a defendant misrepresents the number or character of his prior convictions." Ibid.; see State v. Witcher, 58 N.J. Super. 464, 468-69 (App. Div. 1959) (the prosecution could cross-examine defendant about his extensive record of criminal convictions after defendant testified he had only one prior conviction).
Here, defendant "opened the door" to cross-examination based on his non-indictable convictions when he stated falsely on direct examination, "I have . . . [n]o prior convictions of anything." As in Buffa, supra, 51 N.J. Super. at 233, and Witcher, supra, 58 N.J. Super. at 468-69, the misrepresentation permitted admission of otherwise inadmissible evidence of his true record of convictions.
The potential damage to defendant in the jury's eyes was mitigated to some extent by the judge's explanation of disorderly persons offenses in the final jury charge. First, the judge instructed the jury that "[t]he purpose of the testimony [regarding the disorderly persons offenses] was to attack [defendant's] credibility, believability in terms of his overall testimony." To guide the jury away from viewing defendant as a person with a serious criminal history, the judge then instructed:
Now, I mentioned a conviction for disorderly persons offense, but what you have to understand under New Jersey law, there is a distinction between a conviction for a disorderly persons offense and a conviction of a crime. And under our Code of Criminal Justice, the Code indicates that an offense defined by the Code or by any other New Jersey Statute, for which a sentence of imprisonment in excess of six months is authorized, constitutes a crime within the meaning of the New Jersey Constitution.
Disorderly persons offenses and petty offenses are not crimes within the meaning of [the] Constitution of New Jersey.
So that gives you an idea of the distinction between conviction of a crime and a conviction for a disorderly persons offense. Considering the circumstances under which the trial court admitted the evidence of defendant's prior disorderly persons convictions and the court's instructions to the jury, we conclude that the court did not err in its ruling and defendant was not deprived of a fair trial.
We find greater reason for concern in certain "other bad acts" evidence that had the potential to prejudice defendant by suggesting to the jury that he was a person of violent or otherwise bad character. During cross-examination by defense counsel, cooperating witness Thompson testified that defendant said to him in the cell that "he beat three dudes in the head with a lead pipe." Defense counsel did not object to this testimony. The prosecution also elicited testimony from defendant about his child support arrears and the multiple times his driver's license had been suspended for that reason. Again, defense counsel did not object to that line of cross-examination.
Under N.J.R.E. 404(b), evidence of: other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court held that a defendant's prior unlawful conduct or bad act that is not included as part of the pending charges may be admitted in evidence only if it: (1) is relevant to a material issue in dispute, (2) is similar in kind to the current charge and reasonably close in time to the offense at issue; (3) is shown by clear and convincing proof; and (4) has probative value that is not outweighed by prejudice. Accord State v. Marrero, 148 N.J. 469, 483 (1997); see also State v. Barden, 195 N.J. 375, 389 (2008) ("second prong may be eliminated where it 'serves no beneficial purpose'" (quoting State v. Williams, 190 N.J. 114, 131 (2007))).
Here, the trial court did not analyze the Cofield factors to determine whether Thompson's reference to violence or the prosecutor's cross-examination on child support arrears and license suspensions were admissible under N.J.R.E. 404(b). However, defense counsel did not object to any of the challenged testimony and did not request either a determination of its admissibility or its exclusion from the record and a curative instruction to the jury. Therefore, to prevail on appeal, defendant must demonstrate that the admission of the challenged testimony was plain error, that is, error that was "clearly capable of producing an unjust result . . . ." R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971). "Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (citation and quotation marks omitted); accord State v. Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 336.
Thompson's challenged testimony came in the midst of cross-examination about the recorded statement he gave to investigators after the damage to the window was discovered. In that statement, Thompson told investigators that, while in the cell that day and night, defendant "wouldn't shut up the whole time. He just kept talking and talking." Defense counsel asked what defendant was talking about, and Thompson responded, "Anything and everything." He then injected the remark about beating "three dudes in the head with a lead pipe" and also stated that defendant said he had been jailed because of domestic violence. Although irrelevant to the charges and likely inadmissible under N.J.R.E. 404(b), Thompson's testimony in that regard was neither offered nor anticipated by the prosecution; it resulted inadvertently from a general question asked by defense counsel. In the context of a trial where the jury already knew that defendant had been arrested and held in jail, and later during the trial learned that defendant had been detained in other jails for various offenses, we conclude that Thompson's offhand remark did not constitute plain error.
The prosecutor's references to child support arrears and driver's license suspensions came in response to defendant's testimony on direct examination suggesting that his prior experiences with jails had been the result of police overreaction and misunderstandings. In fact, defendant himself volunteered on direct examination that he had spent time in jail because he was in arrears on child support. He testified that his mother had bailed him out of jail in the past, and he expected her to post the ten percent cash deposit of $250 to bail him out of the Sussex County Jail on the July 30, 2008, charge. Defendant offered that testimony on direct examination to show that he had no reason to escape from the jail.
On cross-examination, the prosecutor pursued defendant's prior incarcerations for child support to show that he had experience in a jail setting and that he had not been released on bail in the past as promptly as he had testified. The first reference to driver's license suspensions was volunteered by defendant during that line of cross-examination. The prosecutor then asked how many times his driver's license had been suspended for failing to pay child support, and defendant confirmed seven times.
While this line of cross-examination referred to other bad conduct of defendant that might tend to show his disposition to violate the law, again, it was in response to defendant's attempts to depict himself as essentially a law abiding man who had no motive to escape from the Sussex County Jail. In the final charge, the judge instructed the jury that testimony regarding defendant's child support arrears could not be considered in determining whether defendant had a tendency to commit crimes or to conclude that he was a "bad person."
Any prejudicial effect of the testimony about child support and license suspensions could have been alleviated by a contemporaneous objection and a request that the trial court give a limiting or curative instruction when the testimony occurred. We conclude there was no plain error in the challenged cross-examination.
We are not able to reach a similar conclusion with respect to an error in the jury charge pertaining to the essential elements of criminal mischief as a third-degree crime.
At the charge conference pursuant to Rule 1:8-7(b), the judge discussed with counsel the instructions to be given to the jury on count three of the indictment, criminal mischief, based on Model Jury Charge (Criminal), "Criminal Mischief - Purposeful or Knowing Damage to Tangible Property" (May 2005). The following discussion occurred:
THE COURT: As to criminal mischief, if you look at the very last portion of the charge. It's entitled Grading. And it asks the jury to consider the amount of the pecuniary loss. If they determine the defendant guilty of criminal mischief.
In this particular case, from my recollection of the evidence, the only evidence referenced about pecuniary loss was [the glass repairman] and his bill of some $2,600.
THE COURT: So, this aspect of the charge I really don't think is applicable here. There isn't any dispute, assuming the defendant is found to be guilty of the crime.
PROSECUTOR: I don't think there's any factual dispute about the amount.
THE COURT: Right.
PROSECUTOR: So -
DEFENSE COUNSEL: He actually did provide a receipt.
THE COURT: Right. So, I'm not going to give the last part of the criminal mischief charge.
In the final charge, the judge instructed the jury on criminal mischief in conformity with the first part of the cited model jury charge:
In order to convict defendant of this offense, you must find the State has proved beyond a reasonable doubt these three elements:
One, that the defendant damaged the tangible property;
Two, that the tangible property belonged to another;
And, three, that the defendant acted purposely, or knowingly when damaging the property.
The court did not include the following additional portion of the model jury charge:
If you find defendant guilty of criminal mischief, you must then go on to determine the extent of the pecuniary loss that defendant caused. Pecuniary loss means a financial or monetary loss suffered by the owner of the damaged property. The extent of the pecuniary loss caused by defendant must be proved by the State beyond a reasonable doubt. If you find defendant guilty, you must indicate in your verdict whether you find the extent of the pecuniary loss suffered by the owner:
1. amounts to $2,000 or more,
2. amounts to more than $500 but less than $2,000, or
3. amounts to $500 or less. [Model Jury Charge (Criminal), "Criminal Mischief - Purposeful or Knowing Damage to Tangible Property" (May 2005).]
The pecuniary loss as a result of criminal mischief determines respectively whether the offense is a crime of the third or fourth degree or a disorderly persons offense. N.J.S.A. 2C:17-3b.
By excluding the grading portion of the charge, the trial court deprived defendant of the right to have an essential element of the third-degree crime of criminal mischief determined beyond a reasonable doubt by the jury. In analogous circumstances involving a theft offense and the similar grading provisions of N.J.S.A. 2C:20-2b, we stated: "the amount involved in a theft is an element of the offense required to be determined by the jury." State v. Castaldo, 271 N.J. Super. 254, 258 (App. Div. 1994); accord State v. Ball, 219 N.J. Super. 501, 511 (App. Div. 1987); State v. Burks, 188 N.J. Super. 55, 58 (App. Div.), certif. denied, 93 N.J. 285 (1983).
The State has the burden of proving beyond a reasonable doubt an element of an offense that elevates its grading. State v. Federico, 103 N.J. 169, 173-74 (1986). "[T]he jury must find beyond a reasonable doubt the existence of critical facts required to elevate the degree or gradation of crime." State v. Torres, 236 N.J. Super. 6, 11 (App. Div. 1989), certif. denied, 122 N.J. 153 (1990); Burks, supra, 188 N.J. Super. at 60. Omission from the jury instructions of an element of the crime is plain error. See, e.g., Federico, supra, 103 N.J. at 176; Castaldo, supra, 271 N.J. Super. at 258; see State v. Green, 86 N.J. 281, 288 (1981); State v. Butler, 27 N.J. 560, 595-96 (1958).
We recognize there was no dispute in this case that the pecuniary loss to Sussex County in repairing the damaged window was more than $2,000, thus satisfying the monetary threshold for criminal mischief in the third degree. N.J.S.A. 2C:17-3b(1). We also recognize that defense counsel did not object at the charge conference when the court stated it would exclude the grading provision of the model charge on criminal mischief. But there was no explicit waiver by defendant, see State v. Ciuffreda, 127 N.J. 73, 79-82 (1992), of his due process right to have the jury determine beyond a reasonable doubt every element of the offense, and also no affirmative request by defense counsel that the grading portion of the criminal mischief charge not be given, see State v. Ragland, 105 N.J. 189, 193-95 (1986). Again, in the analogous situation for theft offenses, we have held that "the failure to instruct the jury with respect to value is reversible error even if the evidence of price or value is uncontradicted." Ball, supra, 219 N.J. Super. at 511; accord Burks, supra, 188 N.J. Super. at 58.
Although there was sufficient undisputed evidence presented of pecuniary loss to support defendant's conviction for third- degree criminal mischief, the jury instructions only permitted a verdict of guilty on the lesser-included offense of disorderly persons criminal mischief. Where the pecuniary loss is not determined by the jury, the conviction is deemed to be for disorderly persons criminal mischief. State v. Clarke, 198 N.J. Super. 219, 226 (App. Div. 1985) (citing Burks, supra, 188 N.J. Super. at 61).
We reverse defendant's conviction and sentence on third-degree criminal mischief. Defendant is entitled to a new trial on that charge because of the incomplete jury instruction. The State, however, may elect to accept the verdict of guilty for the lesser-included disorderly persons offense, in which event, defendant must be resentenced on count three and the judgment of conviction revised.
Last, we consider defendant's challenge to the four-year sentence of imprisonment on count one for attempted escape. Our review of the trial court's sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated;
(2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 488-89 (2005); Roth, supra, 95 N.J. at 365.
The trial court found applicable aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The court found no mitigating factors applicable.
Defendant contends that he had no prior indictable convictions and his record was "relatively insignificant." He also argues that the trial court improperly considered his motor vehicle violations, pending charges, and charges not resulting in conviction to support its findings with regard to aggravating factors three and six.
In explaining its reasons for imposing sentence, the trial court stated:
In terms of analyzing the relevant aggravating and mitigating factors, one has to exam[ine] this defendant's prior record. In that prior record as a minor he was adjudicated on at least two occasions for acts of delinquency.
Since obtaining his New Jersey driving privileges, he has amassed [an] 18 page Department of Motor Vehicles abstract. He's been deemed a persistent violator. He has a conviction for D.W.I. And, right now, there are pending two outstanding D.W.I. matters. In Texas, and West New York, or Ridgefield Borough. As well as a detainer from West New York, on a disorderly conduct charge.
He's had 30 arrests over the course of his adult life. As he characterizes the offenses, they are all stupid stuff. They include allegations of simple assault, fighting, resisting arrest, criminal trespass, disorderly conduct, possessing marijuana, prowling in public places, being under the influence.
He's been convicted 13 times of acts of disorderly person[s] offenses.*fn1
The risk of reoffense is inescapable in concluding what this all means.
The extent of prior record is significant to this man who is 35 years of age. And the need for specific deterrence is obvious. But apart from that, the crime here is the attempt to escape from the correctional facility. That is a particularly significant act that has to be deterred by a sentencing court for an individual who has been so convicted.
In terms of mitigating factors, it's difficult to discern any. The defendant still to this day does not acknowledge responsibility for his actions. In effect, his comments here are consistent with his prior history. Minimization of his action with regard to prior events.
This statement fully supports the court's findings. See State v. Bieniek, 200 N.J. 601, 610-12 (2010); State v. Kruse, 105 N.J. 354, 358 (1987). Although defendant did not have a prior record of indictable convictions, the sheer number, frequency, and nature of his prior lower-level convictions could be considered in the court's finding of extent and seriousness of offenses under aggravating factor six. State v. Taylor, 226 N.J. Super. 441, 453-54 (App. Div. 1988). Furthermore, defendant's poor driving record could be considered as relevant to aggravating factors three and nine, although not as to aggravating factor six. State v. Radziwil, 235 N.J. Super. 557, 575-76 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990).
In accordance with Rule 2:11-3(e)(2), we find insufficient merit to warrant discussion in a written opinion of defendant's argument that the court erred in failing to find mitigating factors one and two, N.J.S.A. 2C:44-1b(1), (2) (no serious harm); six, N.J.S.A. 2C:44-1b(6) (payment of restitution); and eleven, N.J.S.A. 2C:44-1b(11) (excessive hardship to defendant and his dependents).
The trial court properly considered the applicable aggravating and mitigating factors, performing the kind of "qualitative assessment" required by State v. Thomas, 188 N.J. 137, 153 (2006).
Affirmed in part and reversed in part and remanded either for retrial or resentencing on count three. We do not retain jurisdiction.