August 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERMAN MAMANI, A/K/A EDGAR VARGAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-04-0293.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2012
Before Judges Sapp-Peterson and Ostrer.
Following a jury trial, defendant was convicted of second-degree attempted passion provocation manslaughter, N.J.S.A. 2C: 11-4b(2) (as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1)); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (as a lesser-included offense of second-degree burglary, N.J.S.A. 2C:18-2a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The jury acquitted defendant of first-degree attempted murder and second-degree burglary, N.J.S.A. 2C:18-2a. At sentencing, the court imposed an aggregate eight-year term of imprisonment with an eighty-five-percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The aggregate sentence included the sentences imposed for two additional offenses in unrelated matters for which defendant pled guilty as part of a negotiated plea agreement. On appeal, defendant primarily challenges the court's rulings related to the burglary charge and the sentence on the offenses for which the jury found him guilty. We affirm.
The charges arose out of a domestic dispute between defendant and his wife, Johanna Rodriguez, from whom he was separated. Prior to their separation, defendant and Francisco Perez got into an altercation after defendant saw Rodriguez with Perez. Rodriguez applied for and received a domestic violence restraining order against defendant. Nine days later, on February 24, 2004, defendant returned to the marital home around 10:20 p.m., after he got off work. According to defendant, who testified on his own behalf, he needed to retrieve important paperwork, including his birth certificate and tax information, which were still in the home. As he approached the house, all the lights were off. He therefore believed no one was home and entered the house from the rear with his key. He proceeded to the back bedroom and, upon turning on the lights, saw his wife and Perez lying in bed in their underwear. Defendant confronted Perez, who started cursing at him. Defendant punched him, and the two men started fighting. Defendant claimed Perez grabbed a knife. The knife was regularly kept next to the TV and was used to unlock another bedroom door that usually remained locked by another tenant. The knife was on the floor, and defendant saw Perez grab it. Defendant disarmed Perez, but not without cutting his own hand. He then stabbed Perez twice in the head.
Both Perez and Rodriguez testified that defendant had the knife in his coat and removed it when he proceeded to attack Perez. Rodriguez identified the knife as the one used at the house, but it had not been in her bedroom before defendant entered.
Prior to trial, the State moved to introduce evidence of defendant's prior incident with Perez as relevant to the issue of defendant's intent and motive. The State also sought an instruction to the jury that defendant's flight after the incident was evidence of his consciousness of guilt. Defendant moved for severance of the burglary and contempt charges.
The State and the defense agreed to sever the contempt charge. The court denied the motion to sever the burglary charge and, following an N.J.R.E. 404(b) hearing, ruled that the prior incident would be admitted as relevant to establish defendant's motive and intent, but must be sanitized in accordance with State v. Silva, 378 N.J. Super. 321 (App. Div. 2005).
On appeal, defendant raises the following points for our consideration:
THE COURT COMMITTED REVERSIBLE ERROR IN ALLOWING EVIDENCE OF . . . DEFENDANT'S PRIOR ALTERCATION TO BE ADMITTED AND PRESENTED TO THE JURY AS EVIDENCE OF GUILT.
A. THE PRIOR EVIDENCE WAS NOT RELEVANT OR MATERIAL TO ANY ISSUE IN THIS CASE.
B. THE EVIDENCE WAS HIGHLY PREJUDICIAL.
C. THE COURT'S RULING FAILED TO ADEQUATELY PREVENT THE JURY FROM HEARING PREJUDICIAL TESTIMONY.
THE TRIAL COURT ERRED IN FAILING TO SEVER THE BURGLARY CHARGE FROM THE INCIDENT.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We have considered the points raised in light of the record, briefs submitted, and applicable legal principles, and conclude Judge Paul W. Armstrong did not abuse his discretion in admitting evidence of defendant's prior conduct. Nor do we find the judge erred in denying defendant's motion to sever the burglary charge. Finally, the sentence imposed was not manifestly excessive.
The decision to admit prior bad acts evidence is committed to the sound discretion of the trial judge. State v. Rose, 206 N.J. 141, 157-58 (2011). On appeal, the decision will not be disturbed absent a "clear error of judgment" in the weighing process the judge must undertake to determine the admissibility of Rule 404(b) evidence. Id. at 158.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts may not be admitted to prove the disposition of a person in order to show that such person acted in conformity therewith, but it may be admitted as relevant to other factors, including motive and intent. Prior to admitting this evidence, the court must conduct a preliminary hearing, outside the presence of the jury, where the court must determine whether the prerequisites for the admission of Rule 404(b) evidence have been satisfied:
1. The evidence of other crimes must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crimes must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992).]
All four Cofield factors were satisfied here. As Judge Armstrong found, the history between defendant and the victim was materially relevant to the current charge because it provided a motive for the commission of the offenses and was also probative of defendant's intent. He also found that the prior act, while not as severe as an attempted murder, was nonetheless similar in kind "in that both incidents involved aggressive and assaultive behavior and demonstrate defendant's attitude toward the victim[,] Mr. Perez." Additionally, the judge noted that the two incidents occurred slightly more than one week apart.
Turning to the third and fourth prongs, the judge credited the testimony of Rodriguez, Perez, and the officer who responded to the earlier incident that resulted in the issuance of the temporary restraining order. After considering their testimony, Judge Armstrong found "their testimony to be forthright, responsible, credible and, therefore worthy of belief." This credibility determination is entitled to our deference. State v. Barone, 147 N.J. 599, 615 (1997). Finally, the judge concluded the probative value of the evidence was not outweighed by the prejudice to defendant. The judge then appropriately instructed the jury on the limited purpose for which the other acts evidence could be considered.
In determining whether to grant or deny a severance motion, trial courts are guided by the principle that if the facts necessary to prove one offense are also the same facts that would be admissible to prove another offense, then denial of the severance motion does not constitute an abuse of discretion. State v. Brown, 118 N.J. 595, 605 (1980). "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offense sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).
Evidence introduced as part of the State's effort to prove the attempted murder charge would be admissible to establish defendant's entry into the apartment with the intent to commit a crime, and evidence of defendant's unlicensed entry into the premises would be relevant to prove the attempted murder charge to establish defendant's intent and motive for entering the premises. Thus, the judge did not abuse his discretion in denying the motion.
Nor do we conclude the judge erred in his burglary instruction, as defendant claims, by virtually directing the finding of one of the elements of the offense. The challenged language stated: "I will instruct you at that time that it is a given fact in this case that on February 24, 2004, the [d]efendant was legally prohibited from residing at or being at [the marital residence]." State v. Grenci, 197 N.J. 604 (2009), upon which defendant relies to contend Judge Armstrong directed the jury to find defendant was not licensed to or privileged to enter the apartment, is distinguishable.
As the State points out in its brief, there was a disputed issue as to whether the defendant in Grenci was licensed to enter the premises, as the defendant claimed he had been invited to the premises. Here, defendant's prior restraint from the premises was not a disputed fact. Defendant, in his own testimony, admitted that he was not allowed in the apartment. Thus, the court did not improperly direct the jury to find one of the elements as the offense. Further, assuming there was error, the error was harmless, given defendant's testimony. R. 2:10-1. Finally, the claim that his sentence was manifestly excessive is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
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