August 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL S. ROULEAU, A/K/A MICHAEL ROULEAU, MICHAEL S. ROVLEAU, FRANK GENCO, BRIAN D. SOTO, AND BRYAN D. SOTO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-03-00136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012 -
Before Judges Simonelli and Waugh.
Defendant Michael S. Rouleau appeals from his conviction for two counts of aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5), and two counts of resisting arrest, contrary to N.J.S.A. 2C:29-2. We affirm.
We discern the following facts and procedural history from the record on appeal.
Shortly before midnight on January 16, 2010, Wildwood Police Officers Donald Boice, John Elwell, and James Stevens were dispatched to a local bar in response to a call about an unwanted patron. As Boice arrived on the scene, he noticed a man, later identified as Rouleau, walking in a crosswalk adjacent to the bar. Boice approached Rouleau and asked if he was alright and whether he had been involved in an incident at the bar. Rouleau informed Boice that he was fine and was not involved in any such incident. He continued walking away from the bar.
Shortly thereafter, one of the bar's employees came out of the bar and informed Boice that Rouleau was the unwanted patron. Boice continued his investigation at the bar, while Elwell went to question Rouleau. Elwell told Rouleau to stop so he could question him, but Rouleau continued walking. When Elwell eventually stopped Rouleau, he told Elwell that he was a military veteran and identified himself as Steven Rouleau.
Stevens arrived to provide backup for Elwell. As the officers continued to ask questions, Rouleau became "very boisterous, very loud," and used profanity. At one point, Elwell observed the resident of a nearby house come outside. Elwell did not identify the resident, take a statement, or know why the resident came out of the house.
During his interaction with the officers, Rouleau emphasized his statements by holding a lit cigarette between his thumb and index finger, pointing the lit end at the officers. He refused to extinguish the cigarette when asked, and ultimately blew smoke in Elwell's face.
Elwell testified, and the trial judge subsequently found, that Elwell told Rouleau he was under arrest at that time. Rouleau pushed Stevens in the chest, causing him to lose his balance. However, Stevens did not fall to the ground. As Elwell attempted to handcuff Rouleau, Rouleau kicked Elwell in the thigh.
Stevens attempted to restrain Rouleau, which caused Rouleau to fall to the ground. He landed with his right arm underneath him. Stevens ordered Rouleau to release his right arm so he could handcuff him, but Rouleau refused to comply. Stevens punched Rouleau in the ribcage at least twice, and again instructed him to release his arm. When Rouleau continued to disobey, Stevens punched Rouleau once in the right side of his face, after which Rouleau released his arm and was handcuffed. As the officers performed a pat down, Rouleau kicked Elwell several times. Boice eventually restrained Rouleau's legs.
Rouleau was indicted in March 2010.*fn1 A bench trial was held on January 24, 2011. Rouleau sought to introduce the testimony of an investigator from the Office of the Public Defender who had canvassed the area where Rouleau was arrested, ten months after his arrest, to determine the existence of any witnesses to the altercation between Rouleau and the officers. The investigator intended to testify that she was unable to find any witnesses, which Rouleau argued (1) supported his legal argument that there was no basis for the officers to arrest him for disturbing the peace and (2) impaired the credibility of the officers. The judge precluded the testimony as inadmissible hearsay and irrelevant.
The judge found Rouleau guilty in an oral decision delivered on January 25. The judge subsequently sentenced Rouleau to incarceration for eighteen months on each of the aggravated assaults, merged the two counts for resisting arrest, and sentenced Rouleau to incarceration for five years, with a two-year period of parole ineligibility. All of the sentences were concurrent. This appeal followed.
Rouleau raises the following issues on appeal:
POINT I: THE TRIAL JUDGE DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE WHEN HE PRECLUDED DEFENSE COUNSEL FROM CALLING A WITNESS WHOSE TESTIMONY COULD HAVE UNDERMINED THE CREDIBILITY OF THE TESTIFYING OFFICERS.
POINT II: THE JUDGE ERRED IN NOT EXPLICITLY CONSIDERING DEFENDANT'S CLAIM THAT HE WAS LAWFULLY ATTEMPTING TO PROTECT HIMSELF FROM THE EXCESSIVE FORCE OF THE OFFICERS.
POINT III: THE JUDGE ERRED IN CONVICTING DEFENDANT OF AGGRAVATED ASSAULT ON OFFICER STEVENS.
Having reviewed the arguments raised by Rouleau in light of the applicable law and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
With respect to evidential rulings, our standard of review is abuse of discretion. State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.) ("Trial judges are entrusted with broad discretion in making evidence rulings."), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted).
The trial judge did not abuse his discretion in excluding the investigator's proposed testimony. To the extent she spoke to people in the neighborhood, any testimony that they did not witness the incident would be offered for its truth and properly excluded under N.J.R.E. 802 as hearsay. In addition, the fact that an investigator could not find anyone who witnessed the event had no relevance to any issue before the trial judge. Rouleau has conceded that he was not being tried for disturbing the peace. Although the police officers' credibility was an issue at trial, the fact that the investigator found no witnesses did not materially undermine their credibility.
There was no evidence at trial that the police officers used "excessive and unnecessary force," which might have justified some level of resistance by Rouleau. State v. Mulvihill, 57 N.J. 151, 156 (1970). Although it might have been preferable for the trial judge to have stated explicitly that he found no use of excessive force, inasmuch as it had been argued during summations, the judge stated at the beginning of his oral decision that he had considered the arguments of counsel. He found the police officers to be credible witnesses, a finding that would be inconsistent with the use of excessive force.
Finally, our review of the record convinces us that the finding of guilt with respect to the charge of aggravated assault of Stevens was fully supported by the record. When the victim is a police officer acting in the performance of his duties, conduct which would otherwise constitute a simple assault is elevated to aggravated assault. N.J.S.A. 2C:12-1(b)(5)(a).
A person commits a simple assault if he "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). Bodily injury is "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). The trial judge found that Rouleau "committed aggravated assault by his attempt to cause bodily injury . . . to Officer Stevens when he pushed Stevens away using both hands against the officer and knocking him off balance." That finding was supported in the record. We have held that "physical discomfort, or a sensation caused by" a defendant's contact with another "during a physical confrontation, . . . is sufficient to constitute bodily injury for purposes of a prosecution for simple assault." State ex rel. S.B., 333 N.J. Super. 236, 244 (App. Div. 2000).
Accordingly, pushing Stevens so as to cause him to lose his balance evidenced Rouleau's attempt to cause bodily injury to Stevens.