Opinion
DOCKET NO. A-3398-14T3
02-02-2017
STATE OF NEW JERSEY IN THE INTEREST OF A.H., A JUVENILE
Joseph E. Krakora, Public Defender, attorney for appellant A.H. (William Welaj, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent State of New Jersey (Brett Yore, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-1020-14. Joseph E. Krakora, Public Defender, attorney for appellant A.H. (William Welaj, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent State of New Jersey (Brett Yore, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A.H., a juvenile, appeals from an adjudication of delinquency for conduct that, if committed by an adult, would constitute two counts of third-degree aggravated assault on school employees Dennis McGee and John Provenzano, N.J.S.A. 2C:12-1(b)(5)(d); third-degree aggravated assault of McGee, by attempt to cause significant bodily injury, N.J.S.A. 2C:12-1(b)(7); and second-degree aggravated assault of Provenzano involving serious bodily injury, N.J.S.A. 2C:12-1(b)(1). Defendant contends there was insufficient evidence in the record to support the court's adjudication of delinquency. We disagree as to the first three charges and remand for a more complete statement of reasons with respect to the fourth.
The State presented its case through the testimony of several Vineland High School employees: McGee and Kenny Rivera, security officers; Provenzano, the school security director; and assistant principal Richard Panas. Both McGee and Provenzano were retired police officers in their late sixties. A.H. was a student at the high school.
A.H. was sent to the nurse's office upon suspicion that he was "under the influence." He was escorted by McGee, who was in uniform. A.H. was agitated, used expletives, and objected to staff's efforts to make a preliminary determination about his sobriety. A.H.'s mother was then called, and she agreed to pick him up to have a urine test administered by a doctor.
Soon thereafter, an altercation occurred near the school's parent waiting area. McGee believed A.H. was attempting to leave the school without waiting for his mother. McGee called Provenzano to help him prevent A.H. from exiting. A.H. remained agitated when Provenzano arrived, wearing his badge. He tried to calm A.H. down and asked him to wait in his office.
But A.H. refused. Instead, he pushed Provenzano on his chest with open hands. As Provenzano fell, he twisted his left knee and landed on his right knee. McGee tried to restrain A.H., but he lost his balance and fell. A.H. then straddled McGee and choked him to the point that he had difficulty breathing. McGee felt he was "fad[ing] out." Rivera witnessed A.H.'s assault of McGee. He and another officer struggled to remove A.H.
The State introduced photographs depicting the injuries to McGee's neck. Neither party has included them in the record on appeal.
After the altercation, Provenzano felt pain in both knees. He received treatment for his left knee in the immediate aftermath, but his right knee became swollen in the days following. Provenzano had suffered a torn meniscus of his right knee five years earlier, but he had fully healed from that injury. A physician drained the swollen knee, but it became swollen again and was drained a second time. Provenzano was told he had a staph infection of his knee, which could be fatal if unreversed. His subsequent treatment included courses of antibiotics and two surgeries. He spent seventy-three days in a hospital and a rehabilitation facility. At the time of trial, he continued to experience pain, wore knee braces, and walked with a cane.
A.H. has questioned whether the first physician who drained Provenzano's knee introduced the infection. As the trial court noted, defendant presented no expert evidence to support that theory. In any event, we cannot address A.H.'s assertion as none of the voluminous medical records introduced at trial have been provided to us on appeal. We are unable to assess the issue of medical causation without the medical records. See R. 2:6-1(a)(1) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues"); State v. Cordero, 438 N.J. Super. 472, 489 (App. Div. 2014) (denying consideration of an issue when "defendant has failed to provide us with an adequate record to review a decision on the merits"), certif. denied, 221 N.J. 287 (2015).
A.H.'s mother testified about her son's behavioral issues and school placements. She arrived at the school entrance before the altercation occurred, but did not observe it. When she eventually gained entry, she noticed that A.H. had a black eye.
A.H., testifying in his defense, offered an entirely different account of the incident. He denied that he tried to leave the school; instead, he was merely trying to see if his mother had arrived. He asserted McGee tried to force him to sit in a chair in the parent waiting room and grabbed him by the throat. He said he hit his head on the chair and became dizzy, and could not fully recall what followed. Yet, he denied pushing Provenzano and strangling McGee, and he claimed they later slammed him against a wall as part of their efforts to subdue him.
After reviewing the witnesses' testimony in detail, the court found McGee and Provenzano credible, and rejected A.H.'s contradicting testimony. Based on the officer's and director's testimony, as supported by Rivera, the court found that A.H. purposely committed assaults of McGee and Provenzano. The court also found that A.H. knew McGee and Provenzano were performing their duties as school employees while in uniform or otherwise exhibiting evidence of their authority. Consequently, the State proved all the elements of third-degree aggravated assault on a school employee. N.J.S.A. 2C:12-1(b)(5)(d).
Based on similar credibility findings, the court also found that A.H. attempted to cause significant bodily injury to McGee when A.H. strangled McGee, although the court declined to find that McGee actually suffered a "significant bodily injury." The court thus concluded that the State proved third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(7).
As to these findings, we reject A.H.'s argument on appeal that they lacked sufficient support in the record. We are obliged to defer to the trial court's findings that are based on its assessment of live witnesses and its feel of the case. State v. Locurto, 157 N.J. 463, 471 (1999); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We do not independently assess the evidence as if we were the initial fact finder. Locurto, supra, 157 N.J. at 470-71. However, we review de novo the trial court's interpretation of the law and legal consequences "flow[ing] from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Mindful of these standards, we discern ample support in the record for the findings as to the first three charges and affirm the court's adjudication of delinquency substantially for the reasons stated in the trial court's comprehensive written opinion.
However, we reach a different conclusion with respect to the court's adjudication of the fourth charge, alleging second-degree aggravated assault of Provenzano. The court's findings are incomplete, and its legal conclusions unclear.
To support an adjudication of delinquency, a judge should set forth clear findings of fact and conclusions of law as to each element of the offense that the State has proved beyond a reasonable doubt. State ex rel. L.W., 333 N.J. Super. 492, 498 (App. Div. 2000); see also R. 1:7-4. The court should also state whether it considered lesser-included offenses. State ex rel. L.W., supra, 333 N.J. Super. at 498. When the trial court has failed to do so, it is appropriate to remand for those fact findings and legal conclusions (provided the appellate court has not found there was insufficient evidence to support the adjudication, which would implicate double jeopardy concerns). Id. at 498-99; see also State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992).
A.H. was charged with serious bodily injury aggravated assault under N.J.S.A. 2C:12-1(b)(1). "A person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." Ibid. A "serious bodily injury" is one that "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b).
To prove serious bodily injury aggravated assault, the State must prove either that the defendant attempted to cause serious bodily injury or that he in fact caused the victim to suffer a "serious bodily injury." N.J.S.A. 2C:12-1(b)(1). We address only the latter, as the court made no findings regarding attempt. Thus, the State was required to prove that A.H. acted purposefully, knowingly, or recklessly. See State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986). If he acted only recklessly, the State was required to show that A.H. acted "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1(b)(1).
The complaint did not specify whether A.H. was charged with attempt to cause, or actual causation.
By contrast, in order to establish that A.H. attempted to commit aggravated assault, the State would have to prove that defendant acted purposely. McAllister, supra, 211 N.J. Super. at 362 (citing N.J.S.A. 2C:5-1(a)). Accordingly, proof that A.H. acted knowingly or recklessly would be insufficient. Ibid.
The State was also required to prove causation by establishing that "but for" A.H.'s conduct, the serious injury would not have occurred. See N.J.S.A. 2C:2-3(a). If the adjudication rested on a finding of purposeful or knowing behavior, then the State was also required to prove (1) "the actual result," that is, the serious bodily injury, was "within the design or contemplation" of A.H., or (2) "involve[d] the same kind of injury or harm as that designed or contemplated" and was not "too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on . . . [A.H.'s] liability or on the gravity of his offense." N.J.S.A. 2C:2-3(b).
If the adjudication rested only on reckless behavior, then the State was required to prove, in addition to but for causation, that (1) "the actual result" — the serious bodily injury — was "within the risk of which . . . [A.H.] [was] aware," or (2) "the actual result . . . involve[d] the same kind of injury or harm as the probable result" and was not "too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense." N.J.S.A. 2C:2-3(c).
In this case, it appears the court found that Provenzano suffered "serious bodily injury." The judge stated, "The court analyzes this matter based upon applicable case law that supports the State's position that Security Officer Provenzano sustained 'serious bodily injury' as the result of this incident." There was ample support for that finding.
We note that at another point in its opinion, the court characterized the injury as "significant," noting the defense did not call a medical expert "to dispute that this incident was the proximate cause of the significant injury sustained by Security Office Provenzano." Further raising doubts about the precise nature of the court's finding, the court described the offense charged as "Aggravated Assault Resulting in Significant Bodily Injury Third Degree in violation of N.J.S.A. 2C:12-1(b)(7)(d) - Second Degree (John Provenzano)."
But the court failed to make explicit findings regarding A.H.'s state of mind. As the court did not refer to attempt, we presume the court considered only whether A.H. acted purposefully, knowingly, or recklessly. Yet, the court did not identify which of the three alternatives the State established. See N.J.S.A. 2C:2-2(b) (defining "purposely," "knowingly," and "recklessly").
Turning to the first two alternatives, the court was required to address whether, when A.H. pushed Provenzano in the chest with his open hands, he purposefully or knowingly caused serious bodily injury. The court's finding that "A.H. knew . . . he engaged in an intentional act" does not suffice. The court had to decide whether it was A.H.'s "conscious object," N.J.S.A. 2C:2-2(b)(1), to cause Provenzano to suffer a life-threatening injury, or "protracted loss or impairment" of function, N.J.S.A. 2C:11-1(b); or A.H. was aware that it was "practically certain" that he would cause serious bodily injury, N.J.S.A. 2C:2-2(b)(2). Cf. State v. Battle, 209 N.J. Super. 255, 258-59 (App. Div.) (stating that a person's "brutish and reckless indifference" to the physical safety of a frail purse-snatching victim, does not by itself constitute intent, purpose or plan to cause serious bodily injury sufficient to prove attempt), certif. denied, 105 N.J. 560-61 (1986).
Regarding the third alternative, recklessness, if the court did not find purposeful or knowing conduct, then it was required to address whether A.H. acted recklessly, that is, whether he "consciously disregard[ed] a substantial and unjustifiable risk" that serious bodily injury would result from his actions. See N.J.S.A. 2C:2-2(b)(3). If so, the court was also obligated to decide whether A.H. acted "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1(b)(1). "'[C]ircumstances manifesting extreme indifference to the value of human life,' as an element of aggravated assault, 'entail a probability of serious bodily injury.'" State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994) (quoting State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990)), certif. denied, 140 N.J. 276 (1995); see also Battle, supra, 209 N.J. Super. at 259 (noting that extreme indifference to another's safety may satisfy an element of aggravated assault where serious bodily injury results). The court did not expressly decide these issues.
The court also conflated elements of reckless causation with those of purposeful or knowing causation, stating: "[T]he State must demonstrate 'but for' the juvenile's conduct the result would not have occurred and that the result was within the risk or the result of what A.H. intended while not being too remote." The court concluded, with ample evidential support, that "but for" A.H.'s actions, Provenzano would not have suffered serious bodily injury to his knee. However, the court did not adequately address the other element of causation. Instead, depending on the court's conclusion regarding defendant's state of mind, the court must specifically evaluate either whether the injury was within A.H.'s design or contemplation, or whether the injury was within the risk of which A.H. was aware. N.J.S.A. 2C:2-3(b), -3(c).
We shall not decide in the first instance A.H.'s argument that "under no[] stretch of the imagination could it fairly be concluded that the injury suffered by John Provenzano to his right knee was within the design or contemplation of A.H., nor could it fairly be concluded it was within a risk of which A.H. was aware." Instead, we remand for the trial court to expressly address these issues.
The court did find, "There is no suggestion within the medical records to show that the injury sustained was too remote and too unlikely as suggested by the defense." However, we are not confident the court fully applied the standard set forth in N.J.S.A. 2C:2-3(b), -3(c). The court made its remoteness finding in the context of a discussion of "proximate cause" and "but for" causation. The court did not expressly consider whether Provenzano's infection and subsequent loss of knee function were so remote or accidental that it would not be just to hold A.H. responsible.
We are also concerned that the court may have misplaced a burden of proof on A.H. As noted previously, supra note 2, the court also observed that A.H. did not call a medical expert to dispute proximate causation, when it was the State's burden to prove causation.
The court referred to State v. Whitted, 232 N.J. Super. 384 (App. Div. 1989), in its discussion of causation. In Whitted, we held that a burglary was a "but for" cause of the burglary victim's fatal heart attack. Id. at 392-93. However, applying the causation standard applicable to absolute liability crimes, we reversed the defendant's felony murder conviction because the court failed to instruct the jury that the victim's death must be a "probable consequence" of the defendant's actions. Id. at 388-92; see N.J.S.A. 2C:2-3(e). Whitted may provide support for the court's finding of "but for" causation, but its usefulness ends there. --------
In sum, we affirm the court's findings regarding the first three charges, but remand for additional findings with respect to the charge that A.H. committed second-degree aggravated assault by serious bodily injury.
Affirmed in part; remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION