December 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LISA BROWN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-09-00631.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief).
Before Judges Fisher and Koblitz.
A Somerset County jury convicted defendant Lisa Brown of two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a), one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and one count of fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). In a road-rage incident, defendant threatened to kill a family while swinging a large knife close to the father's face. She received one sentence of five years imprisonment with eighteen months of parole ineligibility on all four convictions. We affirm the convictions and reverse and remand for resentencing only.
At trial, the following facts were developed through the victims' testimony. The husband-and-wife victims were driving with their two young children when they stopped at a traffic light. They heard the screeching sound of a car coming to an abrupt stop behind them, followed by the banging sound of something hitting the back of their car.
The driver of the rear car and her passenger, defendant, exited their car as did the husband, who was driving the car in front. Defendant was holding a butcher knife, which she pointed and waived toward the husband, threatening to kill him as she yelled and cursed at him, asking why he was driving the way he was driving. Seeing what was happening, the wife also got out of the car. She stood in front of defendant, crying and pleading with her to stop. Defendant continued to swing the knife approximately six inches from the father's face, saying, "I'm going to stab you, I'm going to kill you and your kids. I'll kill you all. I've done it before, and I'll do it again. I'm not scared of doing it again." Both parents testified that they took defendant's threats seriously and feared for their own lives and the lives of their children.
After everyone returned to their cars, while his wife was calling the police, the husband testified that he may have reversed his car to block defendant's car and prevent her from escaping before police arrived. With her car blocked in, defendant got back out, and began kicking and stabbing the victims' car, trying to break the windows and kick in or open the doors. Photographs of the victims' car showed a number of scratches and "a dent and a deep scratch . . . where an object [was] pushed into the car door" at one point and dragged along the door to another point. The car sustained approximately $1, 250 of damage. At the close of the State's case, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1.
Defendant did not testify, but the driver of her car testified that the husband was the aggressor and that defendant did not have a knife, make any threats or otherwise damage the victims' car.
On appeal defendant raises the following issues:
TERRORISTIC THREATS — SPECIFICALLY, THAT BROWN PURPOSED OR RISKED "TERRORIZ[ING]" THE COMPLAINANTS — WAS (A) INSUFFICIENTLY PROVEN AND (B) INADEQUATELY EXPLAINED TO THE JURORS. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 9, 10.
A. THE EVIDENCE WAS INSUFFICIENT THAT BROWN PURPOSED OR RISKED "TERRORIZ[ING]" THE COMPLAINANTS BECAUSE BROWN'S ALLEGED THREAT TO KILL HAD NO POTENTIAL PROLONGED EFFECT ONCE THE ROAD RAGE INCIDENT WAS OVER AND EVERYONE WENT THEIR SEPARATE WAYS.
B. THE COURT IMPROPERLY FAILED TO DEFINE "TERRORIZE" AND NEVER DISTINGUISHED IT FROM "HARASS, " CREATING THE LIKELIHOOD THAT THE JURORS CONVICTED WITHOUT UNDERSTANDING THE REQUIREMENT THAT BROWN MUST HAVE PURPOSED OR RISKED CREATING A PROLONGED FEAR. (NOT RAISED BELOW)
C. ONCE THE CONVICTIONS FOR TERRORISTIC THREATS ARE VACATED, THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD ALSO BE VACATED BECAUSE ONE OF THE PURPOSES SPECIFIED WAS THE TERRORISTIC THREATS. (NOT RAISED BELOW)
POINT II: BROWN MUST BE RESENTENCED.
A. EVEN THOUGH THE JURY CONVICTED OF FOUR COUNTS, THE COURT IMPROPERLY IMPOSED ONE GENERAL SENTENCE AND FAILED TO DISPOSE OF EACH COUNT SEPARATELY. (NOT RAISED BELOW)
B. THE COURT IMPROPERLY FAILED TO PROVIDE ANY REASONS FOR REFUSING TO PERMIT THE DEFENDANT'S DAUGHTER TO SPEAK AT SENTENCING.
Defendant argues that her convictions for making terroristic threats should be reversed because the evidence did not show she made threats with the purpose or reckless disregard of the risk of causing "a prolonged fear that is intense enough to make the victim consider lifestyle changes to avoid the threatened harm." Therefore, defendant asserts, the trial court erred in denying her motion for acquittal. When a motion is made at the close of the State's case, the trial court must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, " and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the same standard to decide whether the trial court should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964).
N.J.S.A. 2C:12-3(a) defines the crime of terroristic threats as threatening "to commit any crime of violence with the purpose to terrorize another or . . . in reckless disregard of the risk of causing such terror . . . ." Although N.J.S.A. 2C:12-3(a) does not define a terroristic threat, courts have upheld convictions of third-degree terroristic threats where an armed defendant threatened to kill another. Conklin, supra, 394 N.J.Super. at 413-14.
N.J.S.A. 2C:38-2, enacted as L. 2002, c. 26, amended the criminal code to add the first-degree crime of terrorism. N.J.S.A. 2C:38-2(d) defines "terror" as "the menace or fear of death or serious bodily injury" and "terrorize" as "to convey the menace or fear of death or serious bodily injury by words or actions." Unquestionably, the State presented sufficient evidence by way of the victims' testimony and the photographs of their damaged car to substantiate defendant's guilt of the third-degree crimes of terroristic threats charged here.
For the first time on appeal, defendant also argues that the Model Jury Charge given by the trial judge was insufficient to instruct the jury as to the distinction between harassment, N.J.S.A. 2C:33-4, and terroristic threats. Defense counsel did not object to the original jury charge. During deliberations, when the jurors asked to be instructed again on terroristic threats, the court gave both parties the opportunity to object to a simple rereading of the same jury charge. Again, defense counsel raised no objection, so the court reread the same charge to the jury. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971).
Where "the trial judge's instructions conveyed the applicable legal principles" and "defendant expressed his general satisfaction with the judge's principal charge, " defendant could not then "condemn the very principles he urged, claiming them to be error and prejudicial." State v. Scher, 278 N.J.Super. 249, 271 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). A trial court's use of a Model Jury Charge, while not determinative, "is a persuasive argument in favor of the charge as delivered." State v. Angoy, 329 N.J.Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).
Although the Model Jury Charge for N.J.S.A. 2C:12-3(a) omits a definition of either "terror" or "terrorize, " it includes the following clarification: "The words or actions of the defendant must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm." Model Jury Charge (Criminal), "Terroristic Threats" (2004) (footnote omitted). This language distinguishes terroristic threats from the petty disorderly offense of harassment, N.J.S.A. 2C:33-4, which can be proven by behavior intended "to alarm or seriously to annoy." We are satisfied that the jury was given correct and sufficient instructions and, therefore, there is no reason to upset the jury's verdict.
The State concedes that defendant is entitled to be resentenced. It is a fundamental principle of sentencing that "a defendant must be sentenced separately on each count of the indictment." State v. Orlando, 269 N.J.Super. 116, 141 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994) (citing State v. Cianci, 18 N.J. 191, 194 (1955), cert. denied, 350 U.S. 1000, 76 S.Ct. 555, 100 L.Ed. 864 (1956), and cert. denied, 353 U.S. 940, 77 S.Ct. 819, 1 L.Ed.2d 763 (1957)). The court must also clearly indicate which charges, if any, are merged and which sentences run concurrently. See State v. Yarbrough, 100 N.J. 627, 643-44 (1985) cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986) (discussing how to decide whether sentences should run concurrently or consecutively) and State v. Tate, N.J., (2013) (slip op. at 13-15) (discussing merger). As a full resentencing hearing is therefore required, defendant's objection to the court not allowing defendant's daughter to speak is rendered moot "[O]ur courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot" De Vesa v Dorsey 134 N.J. 420 428 (1993) (concurring opinion) An issue has become moot "when the decision sought in a matter when rendered can have no practical effect on the existing controversy" NY Susquehanna & W Ry Corp v State Dep't of Treasury Div of Taxation 6 N.J.Tax. 575 582 (Tax Ct 1984) aff'd 204 N.J.Super. 630 (App Div 1985)
We note that the sentencing court complied with our Supreme Court's requirement that discretionary decisions made regarding who may speak at sentencing be sufficiently explained on the record State v Blackmon 202 N.J. 283 307 (2010) The sentencing court stated that it would not hear from defendant's daughter because it had read a letter from the daughter As defendant will be resentenced at a new proceeding during which the court will review the circumstances at that time State v Randolph 210 N.J. 330 354 (2012) the court may choose to hear from defendant's daughter
Affirmed in part reversed in part and remanded for a new sentencing hearing.