Opinion
DOCKET NO. A-4765-13T3
02-01-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELGENUN B. PARISH, a/k/a ELGENUN B. PARRISH, ELGI B. PARISH and ELGENUN PARISH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-01-0045. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count Four); second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six). We affirm.
Defendant and two women drove to a nearby gas station to buy cigarettes. The male victim and two other women pulled up in another vehicle. Defendant approached the male victim and pointed a black gun at his face. The two groups left the gas station and drove to the same location about one mile from the gas station, where the verbal altercation between defendant and the male victim continued. Defendant then shot the male victim and a female victim.
A grand jury indicted and charged defendant with first-degree attempted murder (the male victim), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) (Count One); second-degree aggravated assault (the male victim), N.J.S.A. 2C:12-1(b)(1) (Count Two); second-degree aggravated assault (the female victim), N.J.S.A. 2C:12-1(b)(1) (Count Three); fourth-degree aggravated assault (pointing a firearm at the male and/or female victim), N.J.S.A. 2C:12-1(b)(4) (Count Four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) (Count Seven).
The jury acquitted defendant on Counts One, Two, and Three. They found him guilty on Counts Four, Five, and Six. The State dismissed Count Seven. After denying defendant's motion for a new trial, the judge imposed a ten-year prison term with five years of parole ineligibility on Count Five, concurrent to ten years in prison with five years of parole ineligibility on Count Six. The court then imposed a consecutive eighteen-month prison term with eighteen months of parole ineligibility on Count Four. As a result, the judge imposed an aggregate prison term of eleven and one-half years with six and one-half years of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING DEFENDANT'S MOTION TO PRECLUDE TESTIMONY CONCERNING THE INCIDENT AT [THE] GAS STATION BECAUSE THE INCIDENT WAS NOT CHARGED IN THE INDICTMENT; BECAUSE THE INCIDENT WAS NOT INTRINSIC TO THE [LATER] SHOOTINGS . . . AND CONSTITUTED INADMISSIBLE OTHER CRIMES/BAD ACTS EVIDENCE; AND BECAUSE THE TESTIMONY IMPROPERLY BOLSTERED THE CREDIBILITY OF THE STATE'S WITNESSES.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE INCONSISTENCIES IN THE JURY'S VERDICTS BETWEEN COUNTS ONE, TWO, AND THREE, AND THE VERDICT ON COUNT FOUR, DEMONSTRATED THAT IT FAILED TO RATIONALLY APPLY THE REASONABLE DOUBT STANDARD.
POINT III
THE ELEVEN AND ONE-HALF YEAR BASE AGGREGATE CUSTODIAL SENTENCE WITH FIVE YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
(A) THE DEFENDANT'S CONVICTIONS AND THE AGGRAVATING FACTORS PRESENT DID NOT WARRANT THE IMPOSITION OF MAXIMUM BASE CUSTODIAL SENTENCES AND MAXIMUM PERIODS OF PAROLE INELIGIBILTY.
(B) DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT SIX SHOULD BE MERGED INTO HIS CONVICTION FOR AGGRAVATED ASSAULT ON COUNT FOUR.
(C) THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING A CONSECUTIVE SENTENCE ON COUNT FOUR.
We understand the aggregate ineligibility prison term to be six and one-half years because the sentence on Count Four was consecutive to the sentences on Counts Five and Six. --------
I.
We begin by addressing defendant's arguments raised in Point One, that the judge erred by allowing testimony about the gas-station incident because the State failed to charge the incident in the indictment, it was not intrinsic to the shooting, it constituted improper N.J.R.E. 404(b) evidence, and the testimony bolstered the credibility of State witnesses.
It has been long-settled that "[a] criminal charge need only sufficiently identify the event for which criminal accountability is sought so as to enable the accused to defend, to preclude substitution by a jury of an offense for which no indictment was returned, and to defeat a subsequent prosecution for the same offense." State v. Lawrence, 142 N.J. Super. 208, 215 (App. Div. 1976) (citing State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566 (1974)). Count Four of the indictment charged defendant with pointing a firearm at the male and/or the female victim. Defendant never contended the State failed to put him on notice that Count Four could pertain to the gas-station incident. Such was born out by the pre-trial discovery and trial testimony. And brandishing the gun at the gas station supported the convictions on Counts Five and Six, which apparently is undisputed on appeal.
The judge permitted the trial testimony as being relevant after he concluded that the State properly charged the gas-station incident in the indictment. We accord "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) (alteration in original) (quoting State v. Carter, 91 N.J. 86, 106 (1982)), certif. denied, 205 N.J. 78 (2011). We agree with the judge that the incident formed the basis for Count Four of the indictment and find no abuse of discretion.
Defendant maintains that the charges and weapons offenses pertained to the shootings. Even if that were so and the State had not charged defendant with committing a crime by pointing the firearm at the victims at the gas station, there is no reason to perform a N.J.R.E. 404(b) analysis because the incident at the gas station was intrinsic to the shootings. N.J.R.E. 404(b) only pertains to "uncharged" crimes, wrongs, or acts. State v. Rose, 206 N.J. 141, 179-80 (2011). Evidence that is "intrinsic" to a charged offense "need only satisfy the evidence rules relating to relevancy, most importantly [N. J.R.E.] 403." Id. at 179.
In determining whether evidence is intrinsic to a charged offense, here the shootings and weapons-related offenses, the court considers whether the evidence (1) "directly proves" the offense; or (2) concerns "acts performed contemporaneously with the charged crime" and facilitated "commission of the charged crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3rd Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)). The gas-station testimony provided direct proof of the shooting and weapons-related offenses by showing defendant's identity, possession, and pointing of the gun. It also demonstrated defendant's motive to shoot the male victim, which occurred one mile from the gas station and followed minutes after a heated verbal altercation between defendant and the male victim over whether the male victim had previously "jumped" defendant's cousin. Thus, the probative value of the gas-station incident was not substantially outweighed "by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Indeed, defendant presents no credible evidence of prejudice.
Finally, admitting testimony as to the gas-station incident would not constitute an abuse of discretion pursuant to N.J.R.E. 404(b), which states in pertinent part that
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.We note that ordinarily, "[t]rial court decisions concerning the admission of other-crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)). Such is not the case here.
Our Supreme Court set forth the following criteria for admitting other-crimes evidence under N.J.R.E. 404(b):
1. The evidence of the other crime 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 crime 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) (citation omitted).]
Under the first prong, evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here, the evidence that defendant engaged in a heated verbal altercation with the male victim, pointed a gun at his face, drove in a separate car one mile away, and pulled the trigger several times is relevant to identity, motive, and intent.
Prong two is only required when the facts of the case involve similar circumstances to those in Cofield, where the evidence of a drug-related offense was relevant to prove constructive possession. Barden, supra, 195 N.J. at 389. It is not required where the other-crimes evidence is "relevant only to the defendant's state of mind." Ibid. Here, prong two is not required because the other-crimes evidence was only relevant to defendant's state of mind.
As to prong three, the evidence of the purported other crime is clear and convincing because there were detailed accounts of what took place at the gas station.
Under prong four, evidence should only be excluded when "its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." Gillispie, supra, 208 N.J. at 90 (alteration in original) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). Other-crimes evidence is "inherently prejudicial," but the probative value in this case is not outweighed by the any prejudicial effect, including any purported credibility bolstering of State witnesses. Id. at 89-90.
II.
Defendant argues the judge erred by denying his motion for a new trial because the verdict on Count Four was inconsistent with the verdict on Counts One, Two, and Three. We see no abuse of discretion here.
It is well-established that "[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting State v. Banko, 182 N.J. 44, 53 (2004)). Inconsistent verdicts are permissible and provide no basis to set aside a jury's determination of guilt. State v. Grey, 147 N.J. 4, 11 (1996). The Supreme Court has instructed courts not to "conjecture regarding the nature of the deliberations in the jury room." Muhammad, supra, 182 N.J. at 578.
We simply do not "speculate whether verdicts resulted from jury lenity, mistake, or compromise[.]" Ibid. Our Supreme Court has held that "[w]e accept inconsistent verdicts—and not only when the jury's action benefits a defendant. Such verdicts are permitted 'normally . . . so long as the evidence was sufficient to establish guilt on the substantive offense[s] beyond a reasonable doubt.'" Banko, supra, 182 N.J. at 54-55 (quoting State v. Petties, 139 N.J. 310, 319 (1995)). We conclude that the evidence was sufficient to establish guilt on Count Four, standing alone, beyond a reasonable doubt. See ibid.
III.
Finally, we reject defendant's contentions that his sentence was excessive, the judge failed to merge Count Six into Count Four, and the judge erred by running the sentence on Count Four consecutive to the sentences on Counts Five and Six.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence when it is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989); Roth, supra, 95 N.J. at 364-65. In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
Here, the judge found aggravating factors three, six, and nine outweighed the non-existing mitigating factors. In light of defendant's extensive criminal history and the nature of the crimes committed, there is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
As to the merger argument, the State's theory of the case was that defendant's unlawful purpose was to intimidate the male victim and later shoot him. "[W]hen the only unlawful purpose in possessing [a weapon] is to use it to commit the substantive offense, merger is required." State v. Tate, 216 N.J. 300, 308 (2013) (quoting State v. Diaz, 144 N.J. 628, 677 (1996)). However, "merger is not required . . . when the weapon possession is for a broader purpose." Ibid. Thus, merger is not required when "there is sufficient evidence before the jury to support a finding of a broader purpose to use the weapon unlawfully" and the court "gives a proper jury instruction that does not include an instruction that the unlawful purpose is the same as using the weapon to commit the substantive offense[.]" Diaz, supra, 144 N.J. at 638-639 (citations omitted).
There existed strong evidence of a broader purpose than committing the substantive offense of shooting the gun. Defendant used the gun multiple times: he pointed the gun at the male victim's face at the gas station during the verbal altercation; and he later fired several shots. Here, the judge instructed the jury to consider the unlawful purposes suggested by the evidence, which included discharging the weapon and intimidation.
As to the consecutive nature of the sentence, defendant argues the court improperly imposed consecutive sentences on Count Four. N.J.S.A. 2C:44-5(a) states "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" Our Supreme Court has set forth "general sentencing guidelines for concurrent or consecutive-sentencing decisions (including any parole ineligibility feature) when sentence is pronounced on one occasion on an offender who has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes." 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). These criteria are:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
Here, running the sentence of Count Four consecutive to Counts Five and Six was appropriate because the objectives were independent, there were separate acts of violence, and there were multiple victims.
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Id. at 643-44.]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION