NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2708-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HEIDY V. VALDEZ,
Defendant-Appellant.
___________________________
Argued September 21, 2016 – Decided August 4, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 12-09-1328.
Alyssa A. Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Aiello, of counsel and on the briefs).
Nancy A. Hulett, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Ms.
Hulett, of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Heidy V. Valdez and co-
defendant Juan Del Rosario were convicted of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-
degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count
two); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d) (count three); fourth-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and fourth-
degree obstructing administration of law, N.J.S.A. 2C:29-1(b)
(count five). The charges against defendant stemmed from his
striking a security guard in the head with a baseball bat during
a brawl in a nightclub parking lot, causing her serious bodily
injury, and fleeing from the scene. Del Rosario was prosecuted
and convicted as an accomplice.
On appeal, defendant raises the following contentions:
POINT I
IN ANSWERING THE JURY'S QUESTION REGARDING
TRANSFERRED INTENT, THE TRIAL COURT FAILED TO
EXPLAIN THAT THE DOCTRINE COULD NOT BE USED
TO FIND [DEFENDANT] GUILTY OF SECOND-DEGREE
AGGRAVATED ASSAULT BY ATTEMPTING TO CAUSE
SERIOUS BODILY INJURY. (Not Raised Below).
POINT II
THE JURY SHOULD NOT HAVE BEEN PERMITTED TO
CONSIDER WHETHER [DEFENDANT] WAS GUILTY OF
SECOND-DEGREE AGGRAVATED ASSAULT BY CAUSING
SERIOUS BODILY INJURY BECAUSE THE STATE FAILED
2 A-2708-14T3
TO PRESENT EVIDENCE SUFFICIENT TO WARRANT A
CONVICTION FOR THAT OFFENSE.
POINT III
THE TRIAL [COURT] ERRED IN DENYING
[DEFENDANT'S] MOTION FOR A JUDGMENT OF
ACQUITTAL ON THE CHARGE OF ENDANGERING AN
INJURED VICTIM.
We reject these contentions, and affirm.
I.
We derive the following facts from the record. On the evening
of July 28, 2012, M.B.1 was working as a security guard at a
nightclub located on Route 35 in South Amboy. That evening,
defendant and Del Rosario went to the nightclub with two or three
women.
The club had to be cleared by 2:00 a.m. At approximately
1:30 a.m., M.B. was stationed outside the club by the front doors,
escorting patrons out of the nightclub. The front doors of the
nightclub led to the parking lot. At approximately 1:40 a.m., two
women began fighting on the stairs by the front doors. The fight
continued into the parking lot and became a "giant brawl" involving
numerous individuals. M.B. saw people in the parking lot jumping
on and kicking another security guard, W.H., and went to his aid.
She attempted to get the crowd to disperse by telling them the
1
We use initials to identify the victim and witnesses in this
matter in order to protect their privacy.
3 A-2708-14T3
police were called and they would all be charged with driving
while intoxicated unless they left. The next thing she recalled
was waking up on the ground looking up. She tried to get up, but
people told her to stay down and that she had just been hit with
a bat. An ambulance eventually arrived and transported her to the
hospital.
W.H. testified that he was in the parking lot when he saw the
hatch of an SUV rise and "a bat come out where two gentlemen were
standing behind." He went behind the men in an attempt to remove
the bat from them. He struggled with them over the bat, and lost
his grip when three or four other men pushed him against the SUV
and threw punches at him. A few seconds later, he heard what
sounded like someone getting hit with a bat and saw the bat on the
ground. He did not actually see M.B. get hit, but saw her lying
on the ground "basically unconscious" with blood all over her
head. He grabbed the bat, threw it over a fence, and ran after
the SUV as the driver, later identified as defendant, was
attempting to exit the parking lot. A police officer who had
arrived at the scene saw W.H. running after the SUV, stopped the
vehicle, and arrested defendant.
Another security guard, R.G., saw a man in a red shirt, later
identified as defendant, come out of an SUV with a baseball bat
and "smash" the back of M.B.'s head and neck. R.G. saw M.B.
4 A-2708-14T3
"drop[] like a sack of potatoes[,]" and he thought she was dead.
Defendant looked at R.G. after striking M.B., and ran off. R.G.
ran after defendant, yelling to other security guards to "get the
guy in the red shirt." Defendant took off his red shirt as he ran
through the parking lot. R.G. continued chasing defendant and saw
him run across the highway, jump over a concrete median, continue
across the other side of the highway, and duck behind a parked
SUV. R.G. continued to follow defendant and eventually flagged
down a police officer and told the officer: "That's your guy right
there." Defendant was then arrested.
Another security guard, J.R., saw defendant go to the back
of an SUV, take out a baseball bat, start swinging, and strike
M.B. in the head. Defendant then dropped the bat, removed his red
shirt as he ran through the parking lot, and continued running.
Defendant ran toward the highway and jumped over the median. J.R.
ran after defendant and saw the police placing him under arrest.
Officer Dennis McQuade was dispatched to the nightclub. As
he approached the parking lot, he saw a male running across the
highway. When he arrived at the parking lot, a security guard
informed him that the male who struck M.B. ran through the parking
lot and across the highway. McQuade radioed to another officer
who later arrested defendant. McQuade stopped Del Rosario from
exiting the parking lot, and arrested him.
5 A-2708-14T3
There was surveillance video of the parking lot. The assault
of M.B. was not captured on video, but the video did capture R.G.
chasing defendant through the parking lot as defendant removed his
red shirt. Defendant's red shirt and the bat were later recovered
from the scene.
II.
The trial judge instructed the jury on aggravated assault in
accordance with Model Jury Charge (Criminal), Aggravated Assault-
Serious Bodily Injury N.J.S.A. 2C:12-1b(1) (2012), and on
causation and transferred intent when purposeful or knowing
conduct was involved in accordance with Model Jury Charge
(Criminal), Causation and Transferred Intent (N.J.S.A. 2C:2-3)
(2013). During deliberations, the jury asked the following
question: "For the aggravated assault [charge], is the verdict
supposed to reflect intent to hurt [M.B.] or a person in general?"
Without objection, the judge responded to the jury question by
repeating the original causation and transferred intent
instruction.
In Point I, defendant contends for the first time on appeal
that the judge erred in failing to explain that the doctrine of
transferred intent could not be used to find him guilty of
aggravated assault by attempting to cause M.B. serious bodily
6 A-2708-14T3
injury because transferred intent cannot be applied to an inchoate
crime. This contention lacks merit.
"[A]ppropriate and proper [jury] charges are essential [to]
a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting
State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court
must give a 'comprehensible explanation of the questions that the
jury must determine, including the law of the case applicable to
the facts that the jury may find.'" Id. at 159 (quoting State v.
Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court has an
'independent duty . . . to ensure that the jurors receive accurate
instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by
either party.'" Ibid. (quoting Reddish, supra, 181 N.J. at 613).
"Because proper jury instructions are essential to a fair trial,
erroneous instructions on material points are presumed to possess
the capacity to unfairly prejudice the defendant." Ibid. (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2003)).
When a defendant fails to object to an error regarding jury
charges, we review for plain error. State v. Funderburg, 225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged
error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough. To
7 A-2708-14T3
warrant reversal by this court, an error at trial must be
sufficient to raise "'a reasonable doubt . . . as to whether the
error led the jury to a result it otherwise might not have
reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
Further, "[w]hen a jury requests a clarification, the trial
judge is obligated to clear the confusion." State v. Conway, 193
N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650
(1984). There is no plain error in the judge's responding to a
jury question by repeating the original instructions. State v.
Scher, 278 N.J. Super. 249, 271 (App. Div. 1994).
There was no error, let alone plain error, here. Even if,
as defendant argues, transferred intent does not apply to an
inchoate crime, there is no inchoate crime to aggravated assault.
"[A]ttempted assault . . . is not defined as an inchoate crime
. . . but as a form of the substantive crime of assault[.]" Cannel,
New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:5-1
(2017). Thus, a person is found guilty of aggravated assault, not
attempted aggravated assault, if he "[a]ttempts to cause serious
bodily injury to another." N.J.S.A. 2C:12-1(b)(1). Accordingly,
there was no error in the judge responding to the jury question
by repeating the original causation and transferred intent
instruction.
8 A-2708-14T3
III.
Defendant moved for a judgment of acquittal on the aggravated
assault count at the close of the State's case. He argued, as he
does on appeal, the evidence was insufficient to establish that
M.B. suffered serious bodily injury. We disagree.
At the close of the State's case, the trial judge may enter
"a judgment of acquittal of one or more offenses charged in the
indictment . . . if the evidence is insufficient to warrant a
conviction." R. 3:18-1. In ruling on a motion for a judgment of
acquittal, the judge must determine
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge
beyond a reasonable doubt.
[State v. Samuels, 189 N.J. 236, 244 (2007)
(quoting State v. Reyes, 50 N.J. 454, 458-59
(1967)).]
Under Rule 3:18-1, the court "is not concerned with the worth,
nature or extent (beyond a scintilla) of the evidence, but only
with its existence, viewed most favorably to the State." State
v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif.
denied, 77 N.J. 473 (1978). "If the evidence satisfies that
standard, the motion must be denied." State v. Spivey, 179 N.J.
229, 236 (2004). We use the same standard as the trial judge in
9 A-2708-14T3
reviewing a motion for judgment of acquittal at the close of the
State's case pursuant to Rule 3:18-1. Bunch, supra, 180 N.J. at
548-49.
A person is guilty of aggravated assault if he "causes
[serious bodily] injury purposely or knowingly or under
circumstances manifesting extreme indifference to the value of
human life recklessly causes such injury[.]" N.J.S.A. 2C:12-
1(b)(1). Serious bodily injury means "bodily injury which 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).
"Where a person causes serious bodily injury, he is guilty
whether his mental state is purposeful, knowing or reckless."
State v. McAllister, 211 N.J. Super. 355, 362 (1986). A person
acts purposely "if he/she acts with design, with a specific intent,
with a particular object or purpose, or if he/she means to do what
he/she does[.]" Model Jury Charge (Criminal), Aggravated Assault-
Serious Bodily Injury N.J.S.A. 2C:12-1b(1). A person acts
knowingly "if he/she is aware that it is practically certain that
his/her conduct will cause such a result." Ibid. A person acts
recklessly
if he/she consciously disregards a substantial
and unjustifiable risk that the result will
occur from his/her conduct. The risk must be
of such a nature and degree that, considering
10 A-2708-14T3
the nature and purpose of the actor’s conduct
and the circumstances known to the actor, its
disregard involves a gross deviation from the
standard of conduct that a reasonable person
would observe in the actor’s situation. One
is said to act recklessly if one acts with
recklessness, with scorn for the consequences,
heedlessly, fool-hardily.
[Ibid.]
Two eyewitnesses saw defendant strike M.B. in the back of her
head with a baseball bat. M.B. was rendered unconscious and
appeared to be dead to one of the witnesses. M.B. testified,
without objection, about the nature and extent of her injuries.
She testified that she sustained a "pretty thick" gash on the back
of her head that required five stiches and left a scar, and intense
bruising all over her body. The jury was shown pictures that
fairly and accurately represented her injuries. She also testified
that she suffered severe back, neck, and head pain; headaches;
ringing in her ears; and severe numbness and tingling down her
arms. She could not remember her name, how to spell words, close
her eyes, stand up without falling, shower on her own, or lay
flat, and she had to sleep sitting up for eight months after the
attack. At the time of trial approximately two years after the
attack, she still had recurring symptoms and suffered from seizures
that caused her to abandon her goal of becoming a law enforcement
officer or continue as an emergency medical technician or volunteer
11 A-2708-14T3
firefighter. Defendant did not dispute the nature or extent of
M.B.'s injuries.
Viewing the State's evidence in its entirety, and giving the
State the benefit of all favorable inferences which can be drawn
therefrom, a reasonable jury could find defendant guilty beyond a
reasonable doubt of aggravated assault by causing serious bodily
injury to M.B. The evidence was sufficient for the jury to find
that defendant created a substantial risk of death or a permanent
disfigurement, or protracted loss, or impairment of bodily
function by striking her with great force in the back of her head
with a bat, and that he acted purposely, knowingly, or recklessly
under circumstances manifesting extreme indifference to the value
of human life. M.B.'s injuries were serious, they affected her
daily life and normal activities, and they were protracted,
prolonged and extended in time. Accordingly, the judge properly
denied the motion for judgment of acquittal.
IV.
Defendant contends in Point III that because M.B.'s co-
workers came to her aid before he left the scene, the judge erred
in denying his motion for judgment of acquittal at the close of
the State's case on the endangering an injured victim count. This
contention lacks merit.
N.J.S.A. 2C:12-1.2(a) provides as follows:
12 A-2708-14T3
A person is guilty of endangering an
injured victim if he causes bodily injury to
any person or solicits, aids, encourages, or
attempts or agrees to aid another, who causes
bodily injury to any person, and leaves the
scene of the injury knowing or reasonably
believing that the injured person is
physically helpless, mentally incapacitated
or otherwise unable to care for himself.
Physically helpless means a "condition in which a person is
unconscious, unable to flee, or physically unable to summon
assistance[.]" N.J.S.A. 2C:12-1.2(b)(1). Mentally incapacitated
means "that condition in which a person is rendered temporarily
or permanently incapable of understanding or controlling one’s
conduct, or of appraising or controlling one’s condition, which
incapacity shall include but is not limited to an inability to
comprehend one’s own peril[.]" N.J.S.A. 2C:12-1.2(b)(2). Bodily
injury "means physical pain, illness or any impairment of physical
condition[.]" N.J.S.A. 2C:11-1(a).
To satisfy the statute, defendant's flight need not enhance
the risk of further injury. State v. Munafo, 222 N.J. 480, 490
(2015). "The Legislature, instead, chose to criminalize the act
of leaving the scene of an injury with knowledge that the victim
was helpless." Ibid. That behavior, alone, "presents the risk
of further injury." Ibid. Essentially, "[t]he law makes it an
offense to cause bodily injury and flee the scene with knowledge
13 A-2708-14T3
or a reasonable belief that the injured person was in a vulnerable
state." Id. at 492.
"It is an affirmative defense to prosecution for a violation
of this [statute] that the defendant summoned medical treatment
for the victim or knew that the medical treatment had been summoned
by another person, and protected the victim from further injury
or harm until emergency assistance personnel arrived." N.J.S.A.
2C:12-1.2(c). The defendant must prove this affirmative defense
by a preponderance of the evidence. Ibid. Defendant does not
argue he was entitled to a judgment of acquittal because he
established this affirmative defense. Nevertheless, he cannot
establish the defense, as he did not know that others had summoned
medical treatment and did not protect M.B. from further injury or
harm until emergency assistance personnel arrived.
Viewing the State's evidence in its entirety, and giving the
State the benefit of all favorable inferences which can be drawn
therefrom, a reasonable jury could find defendant guilty beyond a
reasonable doubt of endangering an injured victim. Defendant
indisputably caused bodily injury to M.B. and fled the scene. The
jury could reasonably infer from the evidence that defendant knew
or reasonably believed that M.B. was physically helpless or
mentally incapacitated.
14 A-2708-14T3
Lastly, we reject defendant's argument that N.J.S.A. 2C:12-
1.2(a) does not apply because M.B.'s co-workers had already come
to her assistance before he fled the scene. The statute does not
require the State to prove that defendant's flight from the scene
increased the risk that further harm would come to M.B. Munafo,
supra, 222 N.J. at 489-90. Leaving the scene of an injury knowing
the victim was helpless is the gravamen of the charge. Ibid.
Defendant fled the scene knowing or reasonably believing that the
victim, whom he struck in the back of her head and knocked
unconscious, was physically helpless, mentally incapacitated, or
otherwise unable to care for herself. Id. at 486.
Affirmed.
15 A-2708-14T3