DOCKET NO. A-5352-12T3
McMonagle, Perri, McHugh & Mischak, P.C. attorneys for appellant (Carson B. Morris, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Leone. On appeal from Superior Court of New Jersey, Law Division, Atlantic Court, Indictment No. 12-06-01428. McMonagle, Perri, McHugh & Mischak, P.C. attorneys for appellant (Carson B. Morris, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jacob Adigwe appeals his disorderly persons convictions. He challenges the sufficiency of the evidence of his motive. We affirm.
We summarize the trial testimony, starting with the testimony of Atlantic City Police Officer Huan Le. Around 2 p.m. on April 14, 2012, Officer Le was off duty at home. Defendant knocked on his back door, wearing a white hard hat with no identifying insignia.
Officer Le knew that persons posing as utility employees had knocked on doors of elderly victims in the neighborhood and then robbed them. Officer Le watched through the window as defendant waited for a response, then went to the neighbor's door, knocked on her door, walked around her house, and looked in her window.
Officer Le saw no utility trucks on the street. He advised police communications he was going to check on a suspicious male, and requested backup. Wearing his police badge, weapon, and radio, Officer Le approached defendant, identified himself, and asked what defendant was doing. Defendant said he was with the Atlantic City Electric Company, and displayed a binder, on the cover of which were bills from Atlantic City Electric and South Jersey Gas. Officer Le asked for credentials.
Defendant became irate, said "what the f*ck do you mean credential[s]?" When Officer Le again asked for identification, defendant tried to shove him with the binder. A scuffle ensued. Officer Le told defendant he was under arrest, but defendant continued to resist. Officer Le subdued defendant with the help of backup Officer Timothy Rose, who testified defendant was resisting and wrestling with Officer Le.
Defendant testified as follows. He was going door-to-door soliciting customers for an alternative energy supplier. Officer Le answered defendant's knock, heard his spiel, and asked why defendant woke him up "for that b*llsh*t." Defendant apologized and left. Ten minutes later, after defendant had knocked on the neighbor's door, had gone on to a third house, and had a successful sales conversation, Officer Le approached him, demanded identification, radioed in, and started assaulting him.
Ebony Williams and Kathy Williams testified they worked for defendant and were soliciting about four to seven houses away, respectively. They did not see the start of the incident, but saw Officer Le hitting defendant and drawing his weapon. Ebony Williams ran away.
The grand jury indicted defendant with fourth-degree aggravated assault and third-degree resisting arrest, but the State downgraded the charges to the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a)(1). After hearing the evidence and extensive argument, the Criminal Division judge found the case turned on the credibility of Officer Le and defendant. The court considered the witnesses' demeanor, and "numerous inconsistencies" led to the conclusion that the officer's testimony was more credible than defendant's testimony. Accordingly, the court was "absolutely satisfied beyond a reasonable doubt that it was Mr. Adigwe who started this altercation." The court sentenced defendant to ninety days in jail and two years of probation.
Defendant appeals, raising the following argument:
THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY BECAUSE THE FACTUAL BASIS IT RELIED ON IN REJECTING DEFENDANT'S TESTIMONY AND FINDING HIM GUILTY - THAT DEFENDANT'S MOTIVE FOR ASSAULTING OFFICER LE WAS THAT HE WAS ENGAGING IN ILLEGAL BUSINESS PRACTICES AT THE TIME OF HIS ARREST - WAS COMPLETELY ABSENT FROM AND UNSUPPORTED BY THE RECORD IN THIS CASE.
We must hew to our "exceedingly narrow" standard of review in non-jury cases. State v. Locurto, 157 N.J. 463, 470 (1999). We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Stas, 212 N.J. 37, 49 (2012). We consider "'the proofs as a whole,'" not just the State's evidence, and will reverse only if "'the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" Locurto, supra, 157 N.J. at 471.
There was sufficient evidence to prove both simple assault and resisting arrest. However, defendant claims that the trial court convicted him based on a misapprehension that there was evidence his business was illegal. To the contrary, the court repeatedly recognized that there was no evidence whether defendant's business was, or needed to be, licensed in New Jersey.
Defendant testified that he was co-owner of a door-to-door sales company which had 110 employees. He stated the company had "a business privilege license" that "allows [him] to practice his business in the Commonwealth of Pennsylvania," and was "registered" by the federal government as it had an employer identification number from the IRS. Defense counsel argued that motive was the "first and foremost" issue, and that defendant did not have motive to assault the officer because he was "accredited" to solicit for his business. The court replied that there was "no testimony whatsoever" about whether defendant's business had or needed a license in New Jersey.
In its decision, the court noted defendant's testimony that his business was licensed in Pennsylvania, where he and his employees lived, and asked: "Does he need a license in New Jersey? I have no idea." Assuming that defendant was in Atlantic City selling utility discounts, the court questioned: "Was he doing it legally? I don't know. There's no evidence in front of me that he was or he wasn't. I only mention it because it goes to motive."
The court queried "why would Mr. Adigwe have done this? Maybe because he wasn't licensed in New Jersey to do this[.]" The court hypothesized that had the questioning continued, Officer Le could "have realized that [defendant] was illegally selling these discounts. Now I don't know if that's true or not[.]" After discussing this "potential motive," the court simply concluded that "for whatever reason Mr. Adigwe had, he did not want to be questioned by this officer[.]"
After finding that Officer Le did not draw his weapon, the court posited another reason why Ebony Williams ran:
It seems more logical to me that she was afraid they were going to get caught doing something illegal because there's been nothing presented to this court that what Mr. Adigwe coming down from Pennsylvania was doing anything legal in Atlantic City. There's been no testimony that he didn't need a mercantile license. There's been no testimony that he had a mercantile license. He needed it. There's no evidence that he's been registered with the Department of Community Affairs in the State of New Jersey. There's been none of that. All we know is he drove down from Pennsylvania and started knocking on doors.The court suggested Williams could have a motive to lie because she had been with the company for a while, or because "they all knew that they shouldn't have been in Atlantic City because they didn't have the proper permits. Purely supposition on this court's part."
Thus, the trial court's repeated statements show it was not acting under a misapprehension, but understood no direct evidence had been introduced whether defendant's business was, or needed to be, licensed in New Jersey. Further, the court's comments were largely a response to defense counsel's argument that defendant was legitimately accredited to conduct business in New Jersey.
In any event, whether defendant's business was licensed in New Jersey is not an element of simple assault or resisting arrest. See N.J.S.A. 2C:12-1(a)(3); N.J.S.A. 2C:29-2(a)(1). Indeed, even "'[p]roof of motive is never essential to a conviction[.]'" State v. McCague, 314 N.J. Super. 254, 262 (App. Div. 1998) (quoting Morss v. Forbes, 24 N.J. 341, 358-59 (1957)); see State v. Savoie, 67 N.J. 439, 460 (1975) (noting it is "important not to confuse motive, which is not essential to guilt but only evidentiary on that question, with intent").
Defendant quotes the court's isolated statement that "[H]e needed it," apparently referencing a mercantile license. Even if it constituted a finding of fact, it was not an unreasonable inference. Defendant testified he had "a business privilege license" that "allows [him] to practice his business in the Commonwealth of Pennsylvania." He made no claim that he had a license to practice his business in New Jersey. Given defendant's testimony, and his introduction of his Pennsylvania license and federal "registration," the judge could reasonably infer that no such license existed for New Jersey.
Similar to a jury, a judge in a bench trial is entitled to draw all reasonable inferences from the evidence. State v. Bryant, 217 N.J. Super. 72, 81-82 (App. Div. 1987) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). "An inference reasonably may be drawn when 'it is more probable than not that the inference is true.'" State v. Thomas, 132 N.J. 247, 256 (1993); State v. Smith, 210 N.J. Super. 43, 49 (App. Div. 1986) (bench trial).
Defendant also complains the court found a "contradiction" in his testimony that Officer Le listened to defendant's spiel even though the officer was angry. Although defendant did not "contradict himself," the court reasonably could find an inconsistency between defendant's claims that (1) Officer Le listened to defendant's entire time-consuming sales pitch, which defendant demonstrated to the court, and (2) Officer Le was so angry at being woken up that he used profanity, pursued defendant down the street, and viciously assaulted him.
In any event, there were more inconsistencies that caused the court to discredit defendant. The court cited the following claims by defendant. Defendant was training someone named "Vernice," whose full name he could not remember, who "shadow[ed]" him that day; however, Ebony Williams testified that she was the "new" employee and was sent off on her own. Defendant said he went to Officer Le's front door, when actually it was the back door. Defendant claimed the officer had been asleep, when the court credited the officer's testimony that he was awake because he had the TV on and two small children with him. Defendant claimed he did not know Officer Le was a police officer, despite his badge and police equipment. Finally, defendant testified he suffered a broken jaw, but provided no medical records. These inconsistencies provided a sufficient basis for the trial court to discredit defendant. See State v. Silva, 131 N.J. 438, 444-45 (1993) (a witness's credibility may be undermined by inconsistencies in his statements or contradiction by other evidence).
We owe particular "deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Stas, 212 N.J. 37, 49 (2012) (quotation marks omitted). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010). Given our standard of review, we defer to the trial court's credibility determination here.
Defendant alleges that Officer Le detained him without probable cause or reasonable suspicion. This argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We affirmed the convictions. We remand solely to correct the judgment of conviction. Although it was clearly stated at the beginning of trial that defendant was charged under N.J.S.A. 2C:12-1(a)(1), and the court convicted him of "[a]ttempt[ing] to cause . . . bodily injury to another," ibid., the judgment of conviction mistakenly refers to N.J.S.A. 2C:12-1(a)(3). I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION