July 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL RODGERS, A/K/A ROLANDO BETANCOURT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Sabatino and Ashrafi.
In State v. Betancourt, No. A-2981-07 (App. Div. Nov. 30, 2009), certif. denied, 201 N.J. 446 (2010), we affirmed defendant's conviction for third-degree aggravated assault of his estranged wife in a severe incident of domestic violence,
but we reversed his conviction on first-degree kidnapping because of incomplete jury instructions. Tried a second time before a jury and found guilty again of kidnapping, defendant, now using the name Paul Rodgers,*fn1 appeals from his conviction on retrial and from his sentence of forty years imprisonment. We affirm.
On May 9, 2006, defendant beat and injured his wife, from whom he was separated, and then he confined her in her own apartment until she was able to escape to the street. The amount of time that the victim was confined was hotly disputed at both trials. The defense argued that it lasted only a minute or two. The victim testified that it was "about an hour, maybe two hours," including a period of time during which she was unconscious from the initial beating. After her escape from the apartment with a bloody nose and contusions to her face and body, the victim was aided by an off-duty police officer who called emergency medical personnel.
The circumstances of the beating and confinement are narrated in greater detail in our previous opinion, and we adopt that statement of facts for purposes of this opinion since the evidence at the second trial was essentially identical to that at the first trial. Betancourt, supra, slip op. at 2-4.
The jury at the first trial found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1b, and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and it acquitted him of two other charges. Betancourt, supra, slip op. at 5. We affirmed defendant's conviction and five-year sentence on the aggravated assault charge, but we reversed and granted defendant a new trial on the kidnapping charge because we found plain error in the failure of the attorneys to request and the trial court to give jury instructions that would have permitted consideration of a lesser-included third-degree offense of criminal restraint, N.J.S.A. 2C:13-2. Betancourt, supra, slip op. at 16-20, 29.
At the retrial on the kidnapping charge, the court instructed the jury on the lesser-included crime of criminal restraint as well as a lesser-included disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3. The jury found defendant guilty of kidnapping as charged in the indictment, and the court again imposed an extended term sentence, pursuant to N.J.S.A. 2C:44-3a and 2C:43-7a(1), of forty years imprisonment with eighty-five percent of the sentence to be served before eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals his kidnapping conviction and sentence, raising the following arguments:
THE EVIDENCE PRESENTED WAS LEGALLY INSUFFICIENT TO CONVICT DEFENDANT OF KIDNAPPING.
THE NEED FOR A LESSER-INCLUDED OFFENSE INSTRUCTION ON ATTEMPTED KIDNAPPING WAS CLEARLY INDICATED BY THE RECORD (NOT RAISED BELOW).
PURSUANT TO STATE V. CASILLA, THE COURT SHOULD CORRECT THE JUDGMENT OF CONVICTION TO INDICATE A JURY VERDICT FOR SECOND-DEGREE KIDNAPPING BECAUSE THE JURY WAS NEVER INSTRUCTED ON, AND NEVER FOUND, THE ELEMENT WHICH ELEVATES A SECOND-DEGREE KIDNAPPING TO FIRST-DEGREE -- THE ABSENCE OF UNHARMED RELEASE OF THE VICTIM (NOT RAISED BELOW).
THE ADMISSION OF PRIOR-BAD-ACTS EVIDENCE AS RES GESTAE WITHOUT A LIMITING INSTRUCTION REGARDING THE PROPER AND IMPROPER USE OF THAT EVIDENCE WAS REVERSIBLE ERROR (PARTIALLY RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject without extensive discussion, R. 2:11-3(e)(2), defendant's argument made in Point I that the evidence was insufficient as a matter of law for the jury to find him guilty of kidnapping because the victim quickly escaped from the apartment. In our prior opinion reviewing essentially the same evidence, we described the issue as "a close question," but we nevertheless found the evidence sufficient for the jury to find defendant guilty beyond a reasonable doubt of kidnapping by confinement in accordance with the holding of State v. La France, 117 N.J. 583 (1990), and other precedents. Betancourt, supra, slip op. at 7, 11-16. We adopt the same reasoning and conclusion after the retrial. In addition, we note that the victim's testimony and other evidence reasonably permitted the jury to conclude that the confinement lasted longer than just a few minutes, perhaps an hour or more.
We reject defendant's argument made in Point IV that he was prejudiced at the second trial by the court's failure to give the jury a limiting instruction on the proper use of evidence that he beat his wife during the incident. Because we had affirmed defendant's conviction for aggravated assault, defendant moved in limine on the first day of the retrial to bar the prosecution from presenting evidence of the initial beating that occurred before the confinement of the victim. The prosecutor argued that evidence of the beatings in their entirety was admissible as the res gestae of the kidnapping charge. The trial court denied defendant's motion in limine.
The issue arises from the following distinction in our prior opinion concerning evidence of the beatings as supporting or not supporting the charge of kidnapping by confinement:
[T]he evidence of defendant's initial confinement of his wife on the bed while he beat her cannot be deemed also to prove a kidnapping. That confinement could rationally be viewed only as incidental to the initial assault upon her. The assault consisted of defendant's throwing her by the hair into the bedroom, pinning her down on the bed, and beating her about the face with about twenty punches.
After that, however, defendant ordered her to stay on the bed and jumped on her and punched her in the nose when she tried to get up. He then repeatedly ordered her to get in the corner. When she tried to fight him, he blocked the door and threatened several times that she would not leave the apartment alive. When she got to the telephone and called for help, he pulled the wire out of the jack, thus demonstrating that he would prevent her from getting help and getting out.
The jury could rationally find from the evidence that defendant's purpose in inflicting the subsequent beating, making the verbal threats, blocking the door, and disconnecting the telephone was to restrain and isolate his wife within the apartment.
Furthermore, defendant expressed his purpose to cause her bodily harm and to commit the further crimes of additional assaults and even homicide. A rational jury could conclude from the evidence that defendant's purpose was to terrorize her, apparently because she had questioned his refusal to do laundry and his intent to go out for the day. If the restraint and isolation of the victim was "criminally significant" because it enhanced the risk of harm to her, the jury could rationally convict defendant of kidnapping by confinement for a substantial period. La France, supra, 117 N.J. at 592. [Betancourt, supra, slip op. at 15-16.]
Defendant contends there was error at the second trial in admitting evidence of the initial beating on the bed without giving the jury a limiting instruction on the proper use of that evidence. He relies on State v. Rose, 206 N.J. 141, 146, 182 (2011), a decision issued after the retrial in this case, in which the Court held that res gestae is not a basis for admission of other crimes and bad acts evidence and that an analysis in accordance with N.J.R.E. 404(b) must precede and support admission of such evidence.
The trial court did not explicitly invoke the doctrine of res gestae when it ruled that evidence of the entire beating would be admissible. It stated quite sensibly that the prosecution: cannot present an adequate case to the jury without showing the preliminaries going up to the assault, the assault itself, and thereafter. [The jury] can[,] based upon the initial assault[,] then make the determination that the continued confinement of her was to facilitate the commission of another crime, or to aid his flight or prevention of authorities from coming after him, or to continue to inflict bodily injury or to terrorize the victim.
So that without the first incident, the second incident wouldn't make any sense.
It's just part of the whole incident, and to exclude it would prevent this jury from having a full picture of the evidence as it presented.
We agree with the trial court's assessment of the evidence pertaining to the initial beating. Like the circumstances leading to the Supreme Court's conclusion in Rose, supra, 206 N.J. at 157-67, our own plenary review of the record and analysis of N.J.R.E. 404(b) leads us to conclude that evidence of the beatings in their entirety was relevant and admissible.
As the recitation of the evidence quoted from our prior opinion shows, the issue here pertains only to the initial blows struck as defendant threw the victim on the bed and punched her. The beating that continued after that was within the admissible evidence of confinement and kidnapping and was not subject to N.J.R.E. 404(b). At the retrial, the victim testified somewhat vaguely on direct examination that she was initially struck "multiple" times while held on the bed and that she lost consciousness for an indeterminate time. When she regained her senses, defendant threatened that she would not leave the apartment alive and struck her and "busted [her] nose open." A limiting instruction informing the jury that it could not use the victim's testimony about the initial blows to conclude that defendant had a general propensity to commit crime was not so crucial to the jury's evaluation of the evidence that its omission in these circumstances constitutes plain error.
Defense counsel did not request a limiting instruction immediately upon the jury hearing testimony about the initial beating. In the final charge to the jury, the court stated that the evidence of the initial beating was provided only as background to the events of that day and not as evidence of the kidnapping. The omission of additional limiting instructions was not plain error. See State v. Baker, 400 N.J. Super. 28, 46-47 (App. Div. 2008), aff'd, 198 N.J. 189 (2009).
In Point II, defendant raises a new argument not presented at the previous trial or appeal and still not presented before the trial court at the second trial. He contends that the court's instructions on the lesser-included offenses of third-degree criminal restraint and disorderly persons false imprisonment were not sufficient to protect defendant's right to a fair trial. He argues that the court should also have instructed the jury on attempted kidnapping, N.J.S.A. 2C:5-1, -4a, as a lesser-included second-degree offense. Because defendant never raised this issue previously, the plain error standard of review applies. R. 2:10-2.
We are cognizant that "the court ordinarily has a supervening responsibility to charge the jury concerning any version of the offense 'clearly indicate[d]' by the evidence to require proper jury consideration." State v. Grunow, 102 N.J. 133, 148 (1986) (quoting State v. Choice, 98 N.J. 295, 299 (1985)). But "[a]n unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting Choice, supra, 98 N.J. at 298). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994); accord State v. Cassady, 198 N.J. 165, 178 (2009).
Defendant argues the jury could have rationally concluded he did not succeed in kidnapping the victim but only attempted to do so because she escaped within minutes of her initial confinement. He argues that the brevity of the confinement required that the jury be given the option of finding defendant not guilty of first-degree kidnapping but guilty of second-degree attempted kidnapping.
Since the testimony about what occurred in the apartment came only from the victim, the amount of time that she was confined was at the heart of the dispute pertaining to the kidnapping charge. The attorneys focused much of their questioning of the victim and their arguments to the jury on the issue of whether the confinement was for a substantial period, as required by the kidnapping statute, N.J.S.A. 2C:13-1b.
The court's final charge also instructed the jury to determine whether the length and nature of the confinement was sufficient to meet the statutory elements of kidnapping. The jury was instructed that it must find the confinement was for a substantial period and that it was not merely incidental to the commission of the assault and substantially increased the risk of harm to the victim beyond that necessary to commit the assault. See La France, supra, 117 N.J. at 587. Unlike the first trial, the jury was given the option of finding that the statutory elements had not been proven and instead to find defendant guilty of the lesser-included offenses of criminal restraint or false imprisonment. These instructions correctly informed the jury about the statutory elements of kidnapping in these factual circumstances.
In the absence of a request for a charge on attempted kidnapping, the trial court was not obligated to "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty[,]'" Savage, 172 N.J. at 397 (quoting Brent, supra, 137 N.J. at 118), or "'meticulously to sift through the entire record' to find appropriate charges," ibid. (quoting Choice, supra, 98 N.J. at 299). Having focused the jury on the issue of confinement as an element of the crime, and having given the jury alternatives to finding defendant guilty of kidnapping if the jury found that the victim was not confined for a substantial period, the court did not commit plain error in omitting yet another lesser-included offense that was not requested by defendant despite opportunities to do so at two trials and in the prior appeal.
In Point III, defendant argues plain error in the trial court's failure to instruct the jury that the prosecution must prove beyond a reasonable doubt that defendant did not release the victim unharmed following her confinement. The argument is based on the last sentence of N.J.S.A. 2C:13-1c(1), which provides in relevant part: kidnapping is a crime of the first degree and upon conviction thereof, a person may . . . be sentenced to an ordinary term of imprisonment between 15 and 30 years. If the actor releases the victim unharmed and in a safe place prior to apprehension, it is a crime of the second degree.
Defendant cites State v. Federico, 103 N.J. 169, 173-76 (1986), and State v. Casilla, 362 N.J. Super. 554, 566-71 (App. Div.), certif. denied, 178 N.J. 251 (2003), and argues that it was plain error not to require that the jury determine the grading of a kidnapping conviction based on this statutory provision.
In Federico, supra, 103 N.J. at 172, and Casilla, supra, 362 N.J. Super. at 567, the juries were not asked to find that the defendant had either harmed the victim or not released the victim unharmed as part of the elements of first-degree kidnapping. In Casilla, where the victim of the kidnapping had been shot dead and his body set on fire in a car, the State argued on appeal that the jury's conviction of the defendant on a homicide charge left no dispute in the record that the jury had found beyond a reasonable doubt the necessary grading element of not releasing the victim unharmed. Id. at 559, 567. We rejected that argument in accordance with the holding of State v. Ragland, 105 N.J. 189, 193-95 (1986), that every element of an offense must be submitted and determined by the jury as to each separate charge. Casilla, supra, 362 N.J. Super. at 568-70.
In this case, unlike Federico and Casilla, the trial court's instructions did require that the jury make the relevant finding before convicting defendant of kidnapping. Following one of the alternatives in Model Jury Charge (Criminal), "Kidnapping" (Feb. 2007),*fn2 the trial court instructed the jury as follows:
If you find the State has proven beyond a reasonable doubt that the defendant committed the crime of kidnapping, you must go on to determine whether the State has proven beyond a reasonable doubt that he knowingly harmed [the victim]. The harm component can include physical, emotional, or psychological harm.
Thus, the jury was specifically instructed that it must find defendant harmed the victim.
The language of the court's instruction that immediately followed the passage we have quoted was somewhat murky on the nature of the prosecution's contentions regarding the harm that the victim suffered. Perhaps unnecessarily, the court made reference to psychological harm as a result of the victim's confinement. See State v. Sherman, 367 N.J. Super. 324, 330 (App. Div.), certif. denied, 180 N.J. 356 (2004), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005).
The State's proofs were clear and undisputed that the victim suffered physical injuries, not just psychological harm. The evidence was that defendant repeatedly punched the victim and, after ordering her not to leave the apartment at the threat of death, struck her again causing a bloody nose and several bruises about her face and body before she escaped. There was no confusion or room for dispute in the evidence that the victim was physically injured and was not released unharmed.
Thus, the jury was required to find beyond a reasonable doubt, specifically as to the kidnapping charge, that the victim was harmed by defendant. In making that finding as part of its verdict of guilty, the jury implicitly and necessarily found that she was not released unharmed. The jury charge did not deprive defendant of the right to have the jury find the essential grading element of first-degree kidnapping.
Finally, defendant argues that his forty-year sentence is excessive. Citing State v. Dunbar, 108 N.J. 80, 89-92 (1987), he argues that the sentencing court made no finding that an extended term sentence was necessary for the protection of the public and that it double-counted an aggravating factor in determining the length of his prison sentence.
"[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." Dalziel, supra, 182 N.J. at 500. We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 489 (2005); State v. Roth, 95 N.J. 334, 365 (1984).
The trial court found aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); 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 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 to the sentence. These findings are amply supported by the record.
Defendant has an extensive criminal record. At the time of his sentencing on February 14, 2011, the thirty-eight-year-old defendant had an adult record of twenty-two arrests, nine prior indictable convictions all of which resulted in prison sentences, and several convictions at the municipal court level. His indictable convictions included burglary, aggravated assault, arson, and tampering with a witness. Between the two trials, defendant was convicted of assaulting and attempting to disarm a law enforcement officer and attempting to escape while he was in the courthouse for a proceeding on one of his charges.
The trial court noted that defendant also had an extensive juvenile record, including an adjudication involving his escape from a juvenile detention facility and the stealing of a car to facilitate his flight. The evidence before the court gave no indication that defendant might change his long-standing inclination to commit violent and other serious crimes.
There was no error in the court's imposition of an extended term sentence pursuant to N.J.S.A. 2C:44-3a, the persistent offender statute. The fact that the court did not expressly quote the phrase "protection of the public" from Dunbar, supra, 108 N.J. at 90, does not mean that it failed to analyze properly the requirements for imposing an extended term sentence. See State v. Bieniek, 200 N.J. 601, 609 (2010) ("It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable . . . factors in reaching its sentencing decision.").
We also reject defendant's argument that the court improperly considered defendant's criminal record twice, both for the purpose of determining whether it should impose an extended term and also to determine the length of the extended term. Two prior indictable convictions would have been sufficient for the court to impose an extended term pursuant to N.J.S.A. 2C:44-3a. Defendant had six indictable convictions within ten years of the current offense and a total of nine altogether. Moreover, the convictions were not for non-violent or so-called victimless crimes. Rather, they demonstrated a propensity to commit crimes that injured or otherwise harmed victims.
On the first-degree kidnapping charge, the extended sentencing range was from thirty years to life imprisonment. N.J.S.A. 2C:43-7a(1). The court sentenced defendant to forty years concurrent to his sentence for aggravated assault. We find no abuse of discretion in the court's consideration of defendant's extensive criminal record to determine the base sentence. The eighty-five percent period of parole ineligibility is mandatory under NERA, N.J.S.A. 2C:43-7.2d.
Defendant's conviction and sentence are affirmed.