NOT FOR PUBLICATION WITHOUT THE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-3872-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADOLPHUS FOSTER,
Defendant-Appellant.
_______________________________________________
Submitted May 16, 2017 – Decided August 16, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 14-05-0530.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).
Sean F. Dalton, Gloucester County Prosecutor,
attorney for respondent (Vanessa Craveiro,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant was convicted in a bench trial of third-degree
aggravated assault and sentenced to a discretionary extended term
as a persistent offender. He presents the following arguments for
our consideration in his appeal:
POINT I
THE COURT BELOW ERRED IN DENYING FOSTER'S
MOTION FOR JUDGMENT OF ACQUITTAL ON THE THIRD-
DEGREE AGGRAVATED ASSAULT CHARGE AS THE STATE
DID NOT PROVE BEYOND A REASONABLE DOUBT THAT
[E.L.] SUFFERED FROM A SIGNIFICANT BODILY
INJURY.
POINT II
THE TRIAL COURT FAILED TO CONSIDER THE LESSER-
INCLUDED OFFENSE OF SIMPLE ASSAULT. (Not
raised below)
POINT III
FOSTER'S SENTENCE IS MANIFESTLY EXCESSIVE AND
MUST BE REDUCED.
We are not persuaded by any of these arguments and affirm
defendant's conviction and sentence.
I.
The evidence presented at trial can be summarized as follows:
The victim, E.L.,1 and defendant were married in 2000 and
divorced within two years. They resumed seeing each other in
1
We used initials to protect the privacy of the victim.
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September 2012. The event that gave rise to the charge here
occurred on September 21, 2013.
E.L. described the events of that evening as follows. She
and defendant visited his sister that evening. She became
uncomfortable when an argument with his sister was "getting a
little heated." She told everyone she was leaving in five minutes
and would be sitting in the car. Defendant, who had been drinking,
came out to the car and said, "You're not f'ing leaving. Don’t
you leave." She replied, "I am leaving," and left for home alone.
When she was at home, in bed, "there was . . . a strong
knocking on the back door." She went to unlock and open the door.
She said, "I didn’t even have a chance to fully open the door all
the way when [defendant] busted through and immediately began
beating me in my face." Defendant punched her "immediately" in
her left eye, "multiple times" that she "couldn’t even count," and
punched her "up around [her] head as well." She "dropped
down, . . . screaming, crying," trying to fight back and then got
up and "was able to just barely get out the back door." Defendant
"came immediately behind [her], grabbed [her] by the back of [her]
hair and pulled [her] down on the ground, and physically drug
[sic] [her] from" the back porch inside the house. Defendant then
shut the door and "beat [her] some more," "punching [her] all
over, specifically in [her] head and [her] face." Then, defendant
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dragged her into the bedroom, got on top of her on the bed and put
"both of his hands around [her] throat using force to stop [her]
from breathing," strangling her.
During the assault, which lasted for approximately one hour,
defendant told her "he was going to kill [her]." The assault
finally ended after defendant's sister, daughter and daughter's
boyfriend came into the house, screaming at him to stop. After
the assault, her "head became numb," she "couldn’t focus, . . .
couldn’t think." Her ears were ringing and her eye was bleeding.
E.L. also stated defendant prevented her from leaving the
house. She asked his daughter to call 911 and go. Defendant took
E.L.'s cell phone and the keys to her car and left. E.L. used
another set of keys to drive and met up with defendant's daughter
and her boyfriend down the street. The police arrived there as
well. She then went to the police department, where the officers
took photographs of her injuries.
Two days later, E.L. sought medical attention at Underwood
Memorial Hospital, where she had a CT scan. She could not see out
of her left eye, which had "pretty much swollen shut" and "oozing."
She also had cuts on the outside of her eye. She was out of work
for two weeks. When her vision returned after three days, she
"had a blurry vision in it." She was instructed by a plastic
surgeon that she should not blow her nose "for at least a month
4 A-3872-15T3
because her sinus cavity was broke[n] and the air was going into
[her] eye." She testified she had permanent nerve damage and that
her face was numb "straight down the center of [her] nose to [her]
upper lip, all the way across and up to the bottom of [her] eye."
Ross Titton, M.D., a board certified radiologist, reviewed
E.L.'s CT scan. He testified that he observed subcutaneous
emphysema in the left preseptal and periorbital region. He
explained this usually means there has been blunt trauma of some
sort and that the most common cause is a fracture. Dr. Titton
observed two definite fractures and a third "very likely" fracture.
The first was in the medial wall of the left orbit of the eye; the
second was a fracture of the floor of the orbit. The third
"probable" fracture was "along the lateral wall of the left
maxillary sinus." Dr. Titton also testified he could "tell with
a very high degree of certainty" that the facial fractures occurred
within the last few days before the CT scan.
Defendant's account differed from E.L.'s. He testified E.L.
was drunk on the night of the incident. When he went to E.L.'s
house that evening, he did not know where his key was. He banged
on the door and then kicked it; the door flew open and hit E.L.
He said E.L. came at him and they got into a fight because "she
was pissed because I accidentally hit her with the door." He
stated the argument was verbal until E.L. jumped on him. Defendant
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stated he then "grabbed her, pushed her" and "pushed her over the
dog kennel by accident." E.L. continued to come at him and he
"smacked her, whatever, pushed her away just to get her away from
[him]." He said the incident lasted between five and seven
minutes.
II.
In Point I, defendant argues the trial judge erred in denying
his motion for a judgment of acquittal because, he contends, the
State failed to establish that the victim's injuries rose to the
level of significant bodily injury. We disagree.
We review the trial court's denial of the motion for judgment
of acquittal de novo, State v. Dekowski, 218 N.J. 596, 608 (2014),
and conduct an independent assessment of the evidence, applying
the same standard as the trial court, see State v. Williams, 218
N.J. 576, 593-94 (2014). A motion for judgment of acquittal is
governed by Rule 3:18-1, which states in pertinent part:
At the close of the State's case or after the
evidence of all parties has been closed, the
court shall, on defendant's motion or its own
initiative, order the entry of a judgment of
acquittal of one or more offenses charged in
the indictment or accusation if the evidence
is insufficient to warrant a conviction.
The well-established standard applicable to deciding such a
motion was set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):
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[T]he broad test for determination of such an
application is whether the evidence at that
point is sufficient to warrant a conviction
of the charge involved. R.R. 3:7-6. More
specifically, the question the trial judge
must determine is 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.
Defendant was convicted of third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(7), which requires proof of the following
elements beyond a reasonable doubt:
1. That the defendant caused significant
bodily injury to another; and
2. That the defendant acted purposely or
knowingly or acted recklessly under
circumstances manifesting extreme
indifference to the value of human life.
[Model Jury Charge (Criminal), "Aggravated
Assault – Significant Bodily Injury" (2012).]
Defendant contends the evidence was insufficient to prove
that E.L. suffered a significant bodily injury. The Model Jury
Charge provides the following instruction to define "significant
bodily injury":
Significant bodily injury means bodily injury
which creates a temporary loss of the function
of any bodily member or organ or temporary
loss of any one of the five senses. As you
know, the five senses are sight, hearing,
taste, touch and smell.
7 A-3872-15T3
[Ibid.]
E.L. testified that she could not see out of her left eye for
three days. Applying the Reyes standard, there was plainly
sufficient evidence to support a finding that she suffered a
temporary loss of one of the five senses, allowing a factfinder
to find defendant guilty on this charge.
III.
Defendant next alleges the trial judge committed plain error
in failing to consider the lesser included offense of simple
assault. This argument lacks sufficient merit to warrant
discussion, see R. 2:11-3(e)(2), beyond the following limited
comments.
N.J.S.A. 2C:1-8(d) states an offense is a lesser-included
offense when:
(1) It is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged; or
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit an
offense otherwise included therein; or
(3) It differs from the offense charged only
in the respect that a less serious injury or
risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
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In State v. Cagno, 211 N.J. 488 (2012), cert. denied, 568
U.S. 1104, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013), the Supreme
Court described the two-part test applicable under this statute:
For a trial court to charge a jury on an
unindicted offense, the court must conclude
not only that the offense is included in the
charged offense but also that the evidence at
trial presents a rational basis for the jury
to acquit the defendant of the greater offense
and convict him or her of the lesser.
[Id. at 521 (quoting State v. Brent, 137 N.J.
107, 123 (1994)).]
Because the evidence here did not provide a rational basis
for the court to acquit defendant of the third-degree offense and
convict on simple assault, this argument lacks merit.
IV.
Finally, defendant argues the trial court erred in imposing
an excessive sentence, "[g]iven the unexceptional nature of the
offense." After determining defendant qualified for a persistent
offender extended term, see N.J.S.A. 2C:44-3(a), the trial court
found aggravating factors three, six and nine, N.J.S.A. 2C:44-
1(a)(3), (6) and (9), and no mitigating factors. The court
sentenced defendant to eight years with a four-year period of
parole ineligibility.
9 A-3872-15T3
We review sentencing determinations in accordance with a
deferential standard. State v. O'Donnell, 117 N.J. 210, 215
(1989).
The appellate court must affirm the sentence
unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating
factors found by the sentencing court were not
based upon competent and credible evidence in
the record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant does not challenge the trial court's findings
regarding aggravating and mitigating factors but argues the
aggravating factors found and the court's rationale do not justify
the sentence imposed. He concedes his record qualifies him for
the imposition of a discretionary extended term but contends the
extended term was not properly imposed because the judge engaged
in improper double-counting. He argues further that the court
"appeared to be under the misbelief that it was required to
sentence [defendant] within the second-degree range because it
found that the discretionary-extended term was applicable." Our
review of the record does not corroborate defendant's
characterization of the trial court's reasoning. We find no basis
for disturbing the sentence that was imposed.
10 A-3872-15T3
Affirmed.
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