Opinion
DOCKET NO. A-1147-12T2
04-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FUQUAN STRIBLING, a/k/a FUQUAM SCRIBLING, JOHN L. MURRAY, FU SCRIBLING, FUQUAN L. SCRIBLING, FUGUAN SCRIBLING, FUQUAN STRIBLING, FUQUAN L. STRIBLING, MARSHALL RINKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-0986. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Fuquan Stribling appeals his convictions for assaulting two police officers with a vehicle and his corresponding sentences. We affirm.
I.
The trial testimony included the following facts. On the night of March 29-30, 2009, defendant took his sleeping girlfriend's red Honda Accord. He picked up another woman, a Ms. Robinson, parked on an unpaved alley in Hillside, and had sex with her.
At about 1:45 a.m., Officers Bryan Arrington and Ryan Cruz were investigating a reported crime. The uniformed officers pulled into the alley in their marked police cruiser with their spotlight and "takedown" lights illuminated. They observed defendant standing behind the open driver-side door of the Honda, with the engine on and headlights off. They could only see his head, and did not see anyone else.
Officer Arrington parked the cruiser in front of the Honda, blocking its path forward out of the narrow alley. The officers exited the cruiser, identified themselves as police, and demanded defendant show his hands. As Arrington approached, defendant got back in the Honda and tried to shut the driver-side door. Resisting the closing of the door, Arrington ordered defendant to get out of the Honda, while Officer Cruz went to the front of the car to radio the license plate number.
Defendant closed the driver-side door, drove forward "aggressively fast" about three to four feet, and knocked Officer Cruz to the ground. Believing Cruz was under the car and their lives were in danger, Officer Arrington shouted for defendant to stop, backed up, drew his gun, and fired at the driver's side of the Honda. Meanwhile, Cruz back-pedaled on the ground away from the Honda's bumper, screamed at defendant to stop, drew his gun, and also fired at the Honda's driver's side.
Defendant put the car in reverse and drove rapidly backwards seven to ten feet, stopped, and drove aggressively towards Officer Arrington. As Arrington jumped on a retaining wall to avoid being hit, the Honda struck his ankle. Arrington fired more rounds. Defendant then drove in reverse up the alley, striking garbage cans, a fence, and a tree. The officers pursued the Honda on foot, and radioed for backup.
After defendant struck the tree, he again drove forward toward Officer Arrington. Arrington kicked in a nearby fence to get out of the way while continuing to yell for defendant to stop. Both officers fired more rounds. While defendant was driving towards Officer Arrington, Officer Cruz observed Robinson diving head first out the passenger-side door, screaming at defendant to stop the car.
Meanwhile, Officers Matthew Casterline and Shakeema Wilson drove up the other end of the alley. Defendant was again rapidly accelerating in reverse and struck their police car. Casterline and Wilson exited, and Casterline repeatedly shouted for the Honda to stop. Defendant instead accelerated forward down the alley, causing Officers Arrington and Cruz to fire more rounds. The Honda reversed again at a high rate of speed, striking Casterline's police car again. As the Honda pulled forward, Casterline heard gunfire, thought defendant was firing a gun at him, and Casterline fired several rounds. The Honda rammed Casterline's vehicle a third time, tried to push the police car out of the way, and then stopped.
After the Honda came to a stop, Officer Casterline approached the vehicle behind a ballistics shield. He found defendant naked and bleeding from multiple gunshot wounds. Casterline rendered medical aid to defendant until the ambulance arrived. Officer Arrington was treated for his swollen ankle. Officer Cruz received no treatment for any physical injuries.
The grand jury indicted defendant under N.J.S.A. 2C:12-1(b)(1) for second-degree aggravated assault attempting to cause serious bodily injury to Officer Cruz (count one) and Officer Arrington (count two); under N.J.S.A. 2C:12-1(b)(2) for third-degree aggravated assault with a deadly weapon — the Honda — attempting to cause bodily injury to Cruz (count three) and Arrington (count four); under N.J.S.A. 2C:12-1(b)(5)(a) for third-degree aggravated assault upon a uniformed police officer against Cruz (count five) and Arrington (count six); and under N.J.S.A. 2C:12-1(b)(6) for second-degree aggravated assault while attempting to elude law enforcement, causing bodily injury to Cruz (count seven) and Arrington (count eight). The grand jury also charged defendant with second-degree eluding law enforcement, N.J.S.A. 2C:29-2(b) (count nine); fourth-degree obstruction of the administration of justice, N.J.S.A. 2C:29-1 (count ten); and third-degree possession of a weapon — the Honda — for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven).
In the eight-day trial, the prosecution called Officers Arrington, Cruz, Casterline, and Wilson, an expert witness, two investigators, several neighborhood witnesses, defendant's girlfriend, and Ms. Robinson. Defendant presented no testimony. The jury convicted defendant of all counts except count seven. In its initial judgment of conviction dated June 26, 2012, the trial court did not merge any counts, and imposed a total of twenty years in jail with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed this appeal.
In his appellate brief, defendant argued:
POINT I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT COULD USE THE PRIOR INCONSISTENT STATEMENTS OF A WITNESS AS SUBSTANTIVE EVIDENCE WAS PREJUDICIAL ERROR. (not raised below).
POINT II. AFTER THE PLAYBACK OF TRIAL TESTIMONY THE COURT SHOULD HAVE INSTRUCTED THE JURY NOT TO PICK OUT AND EMPHASIZE CERTAIN TESTIMONY. (not raised below).
POINT III. THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND VI, XIV, N.J. CONST. ART. 1, ¶¶ 1, 10.
POINT IV. STRIBLING'S CONVICTIONS FOR ASSAULT WITH A DEADLY WEAPON CANNOT STAND UNDER THIS COURT'S DECISION IN STATE V, PARKER, WHICH HELD THAT AN AUTOMOBILE CANNOT BE A "DEADLY WEAPON" FOR PURPOSES OF N.J.S.A. 2C:12-1. (not raised below).
POINT V. THE TRIAL COURT FAILED TO CONDUCT THE NECESSARY MERGER ANALYSIS.
A. MERGER AS TO COUNTS 1 THROUGH 4.
B. MERGER AS TO COUNT 8.
C. MERGER AS TO COUNT 11.
D. MERGER AS TO COUNTS 9 AND 10.
POINT VI. THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED STRIBLING'S PRIOR RECORD IN IMPOSING AN EXTENDED-TERM SENTENCE. THE COURT ALSO IMPROPERLY SENTENCED STIBLING TO CONSECUTIVE TERMS OF IMPRISONMENT.
The State's appellate brief conceded a remand was necessary to address merger. Without a motion or any objection, the trial court then acted to correct the sentence by merging count three into count one, count four into count two, and counts six, nine, ten, and eleven into count eight. In an amended judgment of conviction dated January 8, 2014, the trial court resentenced defendant to the same total sentence, imposing twelve years in prison with an 85% parole disqualifier on count one; a consecutive eight years in prison with an 85% parole disqualifier on count two; five years in prison on count five, concurrent with count one; and eight years in prison with an 85% parole disqualifier on count eight, concurrent with count two.
II.
Defendant, on appeal, claims the trial court failed to give certain instructions. Because he did not raise those claims at trial, he must show plain error. R. 2:10-2. Defendant must demonstrate "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (internal quotation marks omitted). The prejudicial effect of any error not raised below "'must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008). An "error in a jury instruction that is crucial to the jury's deliberations on the guilt of a criminal defendant is a poor candidate[] for rehabilitation under the plain error theory. Nevertheless, any alleged error also must be evaluated in light of the overall strength of the State's case." State v. Burns, 192 N.J. 312, 341 (2007) (citation and internal quotation marks omitted). We must hew to this standard of review.
A.
Defendant's first claim relates to prior inconsistent statements by Officer Arrington and Ms. Robinson. Officer Arrington testified on direct that, after knocking Officer Cruz to the ground, the Honda drove in reverse, and "then came forward towards my direction," causing Arrington to leap onto the retaining wall as the Honda "struck" him. On cross, defense counsel had Arrington read the grand jury transcript, in which Arrington testified the Honda "backs up into me while I pinned [sic] against the fence and the car." The cross continued:
Q: In this [transcript] you say it backed up into you. In the other version you said it pulled forward and came towards you, correct?
A: Based on this, yes, that's what I said.In summation, defense counsel used that inconsistency to impeach Arrington's credibility, arguing the jury should acquit because the State's own evidence showed "the version of the police is not correct."
Defense counsel also questioned whether "pinned" was a different account than "struck." Arrington replied it was the same account and "just the wording" was different.
The trial court twice gave the full model instructions on determining credibility, including that the jury could consider "whether the witness made any inconsistent or contradictory statement." Model Jury Instructions (Criminal), "Instructions After Jury Is Sworn" (revised Jan. 10, 2011) & "Criminal Final Charge (Credibility of Witnesses)" (revised Feb. 24, 2003). On appeal, defendant claims the court also should have instructed the jurors sua sponte that the prior inconsistent statements could be considered for their truth as substantive evidence.
In some instances, the hearsay rule does not exclude a "statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement: (1) is inconsistent with the witness' testimony at the trial." N.J.R.E. 803(a). "The New Jersey rule permits the use of a prior inconsistent statement as substantive evidence when offered by a party other than the proponent of the witness[.]" Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803 (2014) (citing State v. Provet, 133 N.J. Super. 432, 435-39 (App. Div.), certif. denied, 68 N.J. 174 (1975)).
Because Officer Arrington's prior inconsistent statement conveyed "conflicting versions of the same event," it would have been appropriate to give the model instruction on the substantive use of prior inconsistent statements had defendant requested it. State v. Hammond, 338 N.J. Super. 330, 342-43 (App. Div.), certif. denied, 169 N.J. 609 (2001); see also State v. Allen, 308 N.J. Super. 421, 424, 429 (App. Div. 1998). That instruction would have informed the jury that it may consider the evidence not only for credibility, but also "as substantive evidence, that is, proof of the truth of what is stated in the prior contradictory statement." Model Jury Instructions (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (May 23, 1994). However, defendant did not request such an instruction. We need not decide whether the trial court was obligated to give the instruction sua sponte because defendant cannot show plain error.
We repeatedly have held the omission of such an "instruction could not have prejudiced defendant's rights" if the defendant used the prior statement to impeach the State's witness. Provet, supra, 133 N.J. Super. at 438-39; see State v. Cole, 154 N.J. Super. 138, 144 (App. Div. 1977), certif. denied, 78 N.J. 415 (1978); State v. Maddox, 153 N.J. Super. 201, 210-11 (App. Div. 1977). In the usual case where a criminal defendant has no burden of proof requiring substantive evidence, using a prior inconsistent statement to impeach "serve[s] the [same] purpose of disproving [the witness's positive] assertion" as admitting the statement as substantive evidence to prove the negative assertion, and "tends to the same conclusion" by the jury. Provet, supra, 133 N.J. Super. at 438. In such cases, instructing that the statement can be considered in judging credibility of the witness, rather than as substantive evidence, generally is not "plain error justifying a reversal of the conviction." Id. at 438-39.
For example, in Maddox the co-conspirator Scott testified he threw acid in the victim's face at the defendant's request, but in prior statements Scott had denied all involvement. Maddox, supra, 153 N.J. Super. at 209-10. We reasoned that if "the jury utilized Scott's prior denials of involvement for credibility purposes and thus chose not to believe Scott at trial, the result would have been that the jury could not have believed Scott when he said that he and defendant conspired to and did throw acid in Smith's face." Id. at 210. "If the jury were allowed to consider the prior statements substantively and believed the prior statements of denial, the result would have been the same — the jury would have believed that Scott was not involved and would have had to conclude that neither was defendant." Id. at 210-11. We found no plain error in failing to instruct on both uses because, "[r]egardless of whether the prior statements were considered for purposes of Scott's credibility or for their substantive content, the effect on the jury's mental processes was the same." Id. at 211.
Similarly here, defendant cannot show prejudice, particularly as the prior inconsistent exculpatory statement here is not analogous to Maddox. Officer Arrington's grand jury testimony was that defendant drove the Honda backward and hit Arrington in the leg. Asking the jury to credit that grand jury testimony would not have exonerated defendant unless the jury found defendant's striking Arrington was not purposeful because he was driving backward rather than forward. Defense counsel chose instead the more straightforward approach of asking the jury to use the inconsistency to discredit completely Arrington's testimony that defendant drove towards him or hit him from any direction. Defendant cannot show he would have benefitted from a sua sponte instruction by the trial court that the jury could accept Arrington's grand jury testimony as substantive evidence showing defendant drove towards and hit him.
Such a sua sponte instruction would have been even less favorable to defendant with respect to Ms. Robinson's prior inconsistent statements. The prosecution called Robinson, who was suing Hillside and its police officers for damages in a separate civil action, and immediately confronted her with the transcript of her video statement to police hours after the incident. After she testified she did not remember giving any of her answers in that statement, the prosecution indicated it was impeaching its own uncooperative witness. When Robinson testified defendant never drove forward, the prosecutor confronted her with her prior statements that defendant "tried to go forward" and "put[] it in drive going forward towards these officers on foot." Robinson did not recall making those statements, and testified they were not true. She also did not recall her prior statement that when the Honda first began moving, she "was going to try to get out of the car but . . . it flew my body to the back." As the prosecutor noted in his summation, this meant "that car went forward." The prosecution then played her video statement for the jury, argued it was more reliable because it was given before her lawsuit, and asked the jury to credit her prior inconsistent statements rather than her trial testimony.
Defense counsel did not offer any prior inconsistent statements from Robinson's video statement. Instead, defendant elicited favorable live testimony from Robinson on cross that defendant never drove forward and never tried to run over a police officer. Defendant then argued Robinson's prior statements were consistent with her current testimony.
Thus, a sua sponte instruction that the jury could accept Robinson's video statement as substantive evidence would have supported the prosecution's argument. Defendant points out that Robinson, in her video statement, qualified her statements that defendant drove forward by asserting he stopped before he got to the officers. However, those qualified admissions would not have been as favorable for defendant as Robinson's unqualified trial testimony that defendant "never went forward."
To show prejudice, defendant cites the jury's request (subsequently withdrawn) to watch a video playback of Robinson's statement to police, and its request to hear the segment of Officer Arrington's testimony "where Arrington describes the car moving back and forward the first time." Defendant argues the jury's requests show the witnesses' prior inconsistent statements were at least somewhat important to the jury's resolution of the case. Even accepting that assumption, an instruction that they could be used as substantive evidence still may not have redounded to defendant's benefit.
"Defendant's trial counsel's failure to request [such] an instruction gives rise to a presumption that he did not view its absence as prejudicial to his client's case." State v. McGraw, 129 N.J. 68, 80 (1992). Defense counsel chose to use the prior inconsistent statements solely to impeach, and "the trial court gave a full and appropriate general credibility charge," addressing the use of prior inconsistent statements to impeach. Hammond, supra, 338 N.J. Super. at 343; see also Allen, supra, 308 N.J. Super. at 427. Given the State had the burden of proof, "we conclude that with the judge's instructions on credibility, the vigorous arguments of defense counsel on credibility, and the common sense of the jury, the members of the jury were well and amply equipped to deal with such inconsistencies," "with no less capacity than if it had been instructed that it might consider [them] as substantive evidence." Hammond, supra, 338 N.J. Super. at 341, 343.
Given "'the overall strength of the State's case,'" State v. Walker, 203 N.J. 73, 90 (2010), defendant has not shown that the absence of that instruction caused prejudice "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Camacho, supra, 218 N.J. at 554 (internal quotation marks omitted).
B.
Defendant next argues that, when the jury heard the audio playback of Officer Arrington's testimony, the court should have sua sponte "instruct[ed] jurors to consider all of the evidence presented and not give undue weight to the testimony played back." State v. Miller, 205 N.J. 109, 123 (2011). Miller required such an instruction only for video playbacks. Id. at 114, 122-23. The Supreme Court has recently stated that audio playbacks raise similar, if lesser, fairness concerns and have "the capacity to permit a jury to place undue emphasis on a single item of evidence. An audio recording permits the jury to hear every inflection, every hesitation, and every equivocation in the voice of the witness." State v. A.R., 213 N.J. 542, 546, 560-61 (2013). However, this trial took place before A.R. was decided, and before the approval of a model instruction for the playback of "recorded testimony." Model Jury Charge (Criminal), "Playback of Testimony" (approved Apr. 16, 2012). Thus, defendant cannot meet "the burden of proving that the error was clear and obvious." State v. Morton, 155 N.J. 383, 421 (1998).
In any event, defendant must still show "sufficiently grievous" prejudice to establish plain error. Camacho, supra, 218 N.J. at 554; see Miller supra, 205 N.J. at 124, 126. Defendant claims that the jury unduly emphasized Officer Arrington's testimony over Ms. Robinson's testimony because the jury withdrew its request for a playback of her testimony after the playback of his testimony. However, the sequence of events suggests the jury ultimately reconsidered its desire for lengthy playbacks.
The jury requested a video playback of Robinson's testimony and a copy of Arrington's grand jury transcript. Because that transcript had not been admitted into evidence, the trial court instead ordered an audio playback of Arrington's entire trial testimony. After sitting through some of the playback, the jury interrupted, saying that it only wanted to hear "the segment where Arrington describes the car moving back and forward the first time," and that it would "refrain from hearing [Robinson's] testimony." Thus, the jury had not even heard the desired portion of Arrington's testimony when it decided, upon further reflection, it was not interested in hearing full-length playbacks of the recordings of either Arrington or Robinson.
In Miller, the Court found no prejudice even though "the trial judge did not give a specific instruction regarding the replayed testimony," because "the jury charge he delivered the day before directed jurors to consider all of the evidence submitted." Miller, supra, 205 N.J. at 126. Here, in its jury charge the day before, the trial court instructed the jurors to give "full and impartial consideration to all of the evidence," to "consider all evidence presented at trial," and to base their determination "on all of the evidence presented during the trial." Like Miller, we "do not require more in this case in light of the state of the law at the time of trial." Ibid.
Thus, we find no plain error. We also reject defendant's claim of cumulative error.
III.
Defendant challenges his convictions in counts three and four for third-degree aggravated assault by "[a]ttempt[ing] to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1(b)(2) ("subsection (b)(2)"). He contends that a motor vehicle cannot be considered a "deadly weapon" as a matter of law. Because he did not raise such an argument at trial, he must show plain error on appeal.
The Legislature has provided that, "[i]n chapters 11 through 15 [of Title 2C], unless a different meaning plainly is required":
"Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.The "all-inclusive category" emphasized above depends on context: "did a particular defendant possess a particular object at a particular time and in a particular situation with the intention of using it as a weapon." State v. Riley, 306 N.J. Super. 141, 146-47 (App. Div. 1997); accord State v. Rolon, 199 N.J. 575, 583-84 (2009). Here, defendant used the Honda in a manner which is known to be capable of producing death or serious bodily injury. The Honda thus falls within the statutory definition of "deadly weapon." "A deadly weapon is so broadly defined in N.J.S.A. 2C:11-1(c) that there can be no doubt that a motor vehicle may be so classified." State v. Parker, 198 N.J. Super. 272, 279 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985).
[N.J.S.A. 2C:11-1(c) (emphasis added).]
Defendant claims a motor vehicle cannot be a "deadly weapon" under Parker. However, Parker did not involve subsection (b)(2), or a purposeful or knowing attempt to use a car to injure a person on foot. Instead, Parker involved an accident between two cars caused by an alleged drunk driver, id. at 276, who was charged with "recklessly" causing serious bodily injury "under circumstances manifesting extreme indifference to the value of human life" under N.J.S.A. 2C:12-1(b)(1), and "[r]ecklessly caus[ing] bodily injury to another with a deadly weapon" under N.J.S.A. 2C:12-1(b)(3), id. at 275.
In Parker, we "conclude[d] a person who purposely or knowingly causes another person serious bodily injury with a motor vehicle violates N.J.S.A. 2C:12-1(b)(1)." Id. at 279. "Surely if an operator of a motor vehicle purposely or knowingly runs down a pedestrian intending to cause serious bodily injury and succeeds in his purpose the Legislature must have intended to define such conduct as aggravated assault." Ibid. Reading N.J.S.A. 2C:12-1(b)(1) to encompass such conduct was necessary because we were "aware of no other criminal charge that might be made for such an assault." Ibid. Though "broad application of the Code to motor vehicle violations could have unwarranted consequences," we found "because of the egregious level of misconduct required for a conviction under N.J.S.A. 2C:12- 1(b)(1) it is doubtful that many indictments arising from motor vehicle accidents will ever be returned under that section." Id. at 281-82.
We refused to "splinter N.J.S.A. 2C:12-1(b)(1) so as to include within it purposeful or knowing actions with a motor vehicle but exclude from it reckless conduct with a motor vehicle manifesting extreme indifference to the value of human life." Id. at 279-80.
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We reached the opposite conclusion regarding N.J.S.A. 2C:12-1(b)(3) because it only required "reckless[ness]." Ibid. We noted N.J.S.A. 2C:12-1(b)(3) made it an aggravated assault to "[r]ecklessly cause[] bodily injury to another with a deadly weapon," and N.J.S.A. 2C:12(a)(2) made it a simple assault to "[n]egligently cause[] bodily injury to another with a deadly weapon." Id. at 282. We expressed concern that if a "motor vehicle may be a deadly weapon under N.J.S.A. 2C:12-1(b)(3) then it may be a deadly weapon under N.J.S.A. 2C:12-1(a)(2) as well," and thus "a person guilty of ordinary automobile negligence causing bodily injury would commit a simple assault and battery, an offense under the Code." Id. at 282. "Such a construction could lead to results that are far too serious." Ibid. We stressed that "there are many automobile accidents, and people who lead lives of unquestioned integrity negligently cause injuries in such accidents. The simple act of driving could, under the State's position, give rise to ongoing exposure under N.J.S.A. 2C:12-1(a)(2). We will read a statute to avoid this absurd result." Id. at 283. Thus, we stated that "an automobile is [not] a deadly weapon for purposes of an assault offense under the Code." Id. at 282.
Here, applying the plain statutory language to subsection (b)(2) results in no such absurd result. Unlike N.J.S.A. 2C:12-1(b)(3) and N.J.S.A. 2C:12-1(a)(2), neither recklessness nor negligence is sufficient for conviction under subsection (b)(2). Rather, subsection (b)(2) permits conviction only if the defendant "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1(b)(2). Subsection (b)(2) thus has at least as demanding a mental state as N.J.S.A. 2C:12-1(b)(1), which Parker held properly covered assaults by automobile.
Further, subsection (b)(2) is applicable to the same type of violence which Parker held should be covered by the aggravated assault statutes, namely "if an operator of a motor vehicle purposely or knowingly runs down a pedestrian." Parker, supra, 198 N.J. Super. at 279. There is no other crime covering use of a motor vehicle to attempt to cause or purposely or knowingly cause bodily injury to a pedestrian.
Moreover, applying the plain language here produces no anomalies of grading. If the driver "[a]ttempts to cause [or purposely or knowingly causes] serious bodily injury," it is a second-degree offense under N.J.S.A. 2C:12-1(b)(1). If the driver "[a]ttempts to cause or purposely or knowingly causes bodily injury," it is a third-degree offense under N.J.S.A. 2C:12-1(b)(2).
Parker found "some significance" in the "incongruity" that recklessly causing bodily injury with a deadly weapon under N.J.S.A. 2C:12-1(b)(3) and vehicular homicide caused by driving a vehicle recklessly, N.J.S.A. 2C:11-5, were both fourth-degree crimes. Parker, supra, 198 N.J. at 283-84 & n.2. However, reckless vehicular homicide has since been upgraded to a first-or second-degree crime. N.J.S.A. 2C:11-5(a), (b)(3). In any event, as Parker held in upholding prosecution for second-degree aggravated assault using a vehicle under N.J.S.A. 2C:12-1(b)(1), "we see nothing incongruous" in the relative grading of subsection (b)(2) and reckless vehicular homicide because subsection (b)(2) requires a higher mental state under which "defendant's conduct itself is more culpable." Id. at 280-81.
Thus, for subsection (b)(2), it is not absurd to apply the plain language of the definition in N.J.S.A. 2C:11-1(c) to include motor vehicles within the meaning of "deadly weapon." Indeed, courts have reached precisely that result when interpreting NERA. Prior to 2001, NERA, like N.J.S.A. 2C:11- 1(c), provided that "'deadly weapon'" means "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." N.J.S.A. 2C:43-7.2(d) (1997) (emphasis added). Applying the same contextual test Riley applied to N.J.S.A. 2C:11-1(c), the Supreme Court agreed that "'an automobile can be used as a deadly weapon under certain circumstances; the most obvious example being where it is driven directly at a law enforcement officer who is positioned to stop the vehicle.'" State v. Burford, 163 N.J. 16, 19 (2000). Applying Burford, we have held that when a "defendant intentionally drove directly at the police vehicle, with the officers in it, in an unsuccessful attempt to ram the vehicle out of his path so he could make his escape," he used his automobile as a "deadly weapon" under NERA. State v. Griffith, 336 N.J. Super. 514, 518-19 (App. Div. 2001). The Supreme Court has similarly ruled that "[a]utomobiles — if intentionally used to cause death or serious bodily injury — can constitute 'deadly force.'" State v. Galicia, 210 N.J. 364, 390 (2012) (citing Griffith, supra, 336 N.J. Super. at 518-19).
Therefore, we must apply the plain language of subsection (b)(2) and N.J.S.A. 2C:11-1(c) here. Absent constitutional infirmity, "when the language of a statute is clear on its face, 'the sole function of the courts is to enforce it according to its terms.'" State v. Frye, 217 N.J. 566, 575 (2014) (quoting Hubbard v. Reed, 168 N.J. 387, 392 (2001)).
We are not prevented from so holding by dicta in Parker that "[w]hile a purposeful or knowing running over a pedestrian with a motor vehicle could be third degree aggravated assault under N.J.S.A. 2C:12-1(b)(2) such treatment would be dependent upon considering a motor vehicle a deadly weapon, a result which for reasons we set forth infra we decline to reach." Parker, supra, 198 N.J. Super. at 279. Parker declined to treat "an automobile [as] a deadly weapon for purposes of an assault offense under the Code" because the court believed that led to absurd results under N.J.S.A. 2C:12-1(b)(3) and N.J.S.A. 2C:12-1(a)(2). Id. at 282, 283.
However, applying the literal language of N.J.S.A. 2C:11-1(c) to subsection (b)(2) does not lead to an absurd result. While courts "do not read one part of a statute in a way that would render another part redundant or even absurd," State v. Rangel, 213 N.J. 500, 509 (2013), we will not refuse to apply the Legislature's plain language where it reasonably applies. In any event, defendant cannot carry his "burden of proving that the error was clear and obvious" as required for plain error. Morton, supra, 155 N.J. at 421.
IV.
We turn to defendant's sentence. As set forth above, the trial court has already corrected the sentence by merging several of his convictions, granting and mooting most of his appellate merger requests.
Defendant's remaining appellate merger argument is that his second-degree conviction under count eight for "[c]aus[ing] bodily injury to another person [Officer Arrington] while fleeing or attempting to elude a law enforcement officer," N.J.S.A. 2C:12-1(b)(6), should have merged with his second-degree conviction under count two for "[a]ttempt[ing] to cause serious bodily injury to another" person, Arrington, N.J.S.A. 2C:12-1(b)(1). We disagree.
A defendant may not "be convicted of more than one offense if" one offense is "included" in the other offense, because it "is established by proof of the same or less than all the facts required to establish the commission of the [other] offense charged." N.J.S.A. 2C:1-8(a), (d)(1). Here, neither offense is an included offense of the other because, as set forth above, each requires proof of an element the other does not require.
The courts "follow[] a flexible approach . . . that requires us to focus on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case." State v. Tate, 216 N.J. 300, 306 (2013) (internal quotation marks omitted).
"[This] approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed."
[Id. at 307.]
Defendant committed at least two separate assaults on Officer Arrington: driving toward him and striking his foot, causing bodily injury; and again driving toward him, causing him to kick in a fence to avoid serious bodily injury. This in itself is sufficient to justify not merging the two offenses. See State v. Cole, 120 N.J. 321, 335 (1990).
Moreover, the statutes violated here protect "'different interests,'" which is a "'critical'" factor making merger improper. Id. at 329. Aggravated assault under N.J.S.A. 2C:12-1(b)(1) protects against serious bodily injury to anyone, while the assault while eluding offense in N.J.S.A. 2C:12-1(b)(6) protects "the safety of law enforcement personnel" and the integrity of "the criminal justice system." State v. Brannon, 358 N.J. Super. 96, 104 (App. Div. 2003), rev'd on other grounds, 178 N.J. 500 (2004); see State v. Mirault, 92 N.J. 492, 505 (1983).
Defendant next argues that the sentencing court double-counted his prior record by finding he was a "persistent offender" in imposing a discretionary extended term under N.J.S.A. 2C:44-3(a), and by considering "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted" under aggravating factor six, N.J.S.A. 2C:44-1(a)(6). However, the court predicated defendant's persistent offender status solely on his 2006 adult convictions for robbery and unlawful possession of a weapon. The court based its finding of aggravated factor six on defendant's extensive record including his three juvenile adjudications for burglary. State v. Dunbar, 108 N.J. 80, 92 (1987); cf. State v. Vasquez, 374 N.J. Super. 252, 268 (App. Div. 2005) (the defendant had no other criminal history other than "minimal" municipal court matters). In any event, any error in finding aggravating factor six was not "clearly capable of producing an unjust result" as there were two other aggravating factors and no mitigating factors. R. 2:10-2.
Finally, defendant challenges the court's imposition of consecutive sentences on counts one and two — aggravated assaults on Officers Cruz and Arrington, respectively. However, "the crimes involved separate acts of violence or threats of violence." State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Moreover, "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences," State v. Molina, 168 N.J. 436, 442 (2001), particularly when the defendant "intentionally target[ed] multiple victims," State v. Carey, 168 N.J. 413, 429 (2001). Here, after hitting Cruz with the Honda, defendant backed up, stopped, and hit Arrington. Given that "there can be no free crimes in a system for which the punishment shall fit the crime," Yarbough, supra, 100 N.J. at 643, the trial court properly exercised its discretion to sentence defendant consecutively for separately hitting two officers.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION