Preview:

a6700-03.opn.html

N.J.S.A. 2A:4A-26, to be tried as an adult. Thereafter, a Cumberland County Grand Jury returned a multi-count indictment charging defendant and three co-defendants, Lamar Milbourne, Michael Hinson and Keon Milledge, with various offenses against two victims, K.M. and C.P. Following a jury trial, defendant was convicted of firstdegree kidnapping, N.J.S.A. 2C:13-1b, criminal restraint, N.J.S.A. 2C:13-2a, second-degree robbery, N.J.S.A. 2C:15-1a, and simple assault, N.J.S.A. 2C:12-1a, of both K.M. and C.P. He was also found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, of K.M. "> Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6700-03T46700-03T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVON L. NICHOLS, Defendant-Appellant. ___________________________________

Submitted November 7, 2005 - Decided Before Judges Lintner and Gilroy. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0156. Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief). Peter C. Harvey, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief). PER CURIAM Following a hearing in the Family Part, defendant, Davon Nichols, was waived to the Criminal Part, N.J.S.A. 2A:4A-26, to be tried as an adult. Thereafter, a Cumberland County Grand Jury returned a multi-count indictment charging defendant and three co-defendants, Lamar Milbourne, Michael Hinson and Keon Milledge, with various offenses against two victims, K.M. and C.P. Following a jury trial, defendant was convicted of first-degree kidnapping, N.J.S.A.
file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

2C:13-1b, criminal restraint, N.J.S.A. 2C:13-2a, second-degree robbery, N.J.S.A. 2C:15-1a, and simple assault, N.J.S.A. 2C:12-1a, of both K.M. and C.P. He was also found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, of K.M. The judge imposed presumptive terms. Defendant was sentenced to concurrent fifteen-year terms with an eightyfive percent NERA parole disqualifier on each of the two kidnapping convictions and on the aggravated sexual assault conviction. Defendant was also sentenced to five years of parole supervision following his prison term on the kidnapping conviction and must comply with Megan's Law. Concurrent six-month terms were imposed on the two simple assault convictions. Seven-year terms with NERA periods of parole ineligibility were imposed on each robbery conviction, which were run consecutively to each other and consecutively with the aggregate fifteen-year term imposed on the kidnapping, aggravated sexual assault, and simple assault convictions. All in all, defendant received an aggregate term of twenty-nine years with an eighty-five percent NERA period of parole ineligibility. Appropriate fines and penalties were assessed. Defendant appeals and we affirm. The State established the following facts at trial. On September 19, 2002, at approximately 9:30 p.m., K.M. and C.P. were sitting in K.M.'s car. The four perpetrators drove up, claiming to be police. Milbourne opened K.M.'s door and pulled her out of the car. He punched C.P. and took K.M.'s cell phone, keys, and wallet. Milbourne and defendant, who K.M. described as the big guy, placed K.M. against the trunk of her car, and ordered her to spread her legs. When she refused, both told her to shut up or be killed. Defendant also punched her in the ribs. Defendant and two others then took turns vaginally raping K.M., after which defendant and one of the others raped K.M. anally. They restrained her by pulling her T-shirt partially over her head and holding her hair. Meanwhile, when not raping K.M., other members of the gang tried to pull C.P. out of the car. They took his wallet and beat him with a baseball bat. At one point, Hinson pressed the bat to C.P.'s face and forced him to watch K.M. perform forced oral sex on defendant and others. At another point, the perpetrators switched places and defendant punched C.P. several times, told him he was not with the others, and did not touch his girl. One of C.P.'s attackers told him, "[w]e fucked your bitch for like thirty-one dollars," which they had taken from C.P.'s wallet. C.P. was eventually hauled from the car and then hit across the legs with a baseball bat wheeled by Hinson, causing him to fall to the ground. All of them then stomped on his back while he was face down on the ground. The attack on K.M. lasted approximately twenty-five minutes, after which she was taken to a secluded spot in the park by one of the codefendants, who forced her again to perform oral sex. At some point before the perpetrators left, one of them came up behind K.M. and punched her. She fell to the

file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

ground and pretended to be unconscious. After the gang left, K.M. went back to the car where she found C.P., hysterical and bleeding from the face. Wearing just her sneakers and a T-shirt, K.M. took a spare key, which was in the glove compartment, and drove to the hospital. K.M. suffered vaginal bleeding, a black and blue face, bruising, cuts, and scrapes on much of her body. C.P. had bruises, scrapes, and cuts to his face arms and legs. $180 was taken from K.M.'s wallet along with two compact disc players and a cell phone. Defendant's latent palm prints were taken from the trunk and seat pillar of K.M.'s car. Defendant raises the following points on appeal. POINT I THE FAILURE TO REQUIRE THAT THE JURY MAKE SPECIFIC FINDINGS FOR THE OFFENSES OF KIDNAPPING, ROBBERY, AS TO DEFENDANT'S CONDUCT CAUSED THE POTENTIAL OF A NON-UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PAR. 1. (Not Raised Below). POINT II A JUDGMENT OF ACQUITTAL MUST BE ENTERED ON COUNT ONE THROUGH FOUR, KIDNAPPING, AS THE STATE'S EVIDENCE DID NOT SUPPORT THESE CONVICTIONS BEYOND A REASONABLE DOUBT. POINT III THE SENTENCE OF THE COURT WAS EXCESSIVE. We address these issues seriatim. At trial, defense counsel requested that the judge combine, in his charge, the three alternative indicted offenses of robbery, specifically 93 N.J. Super. 90, 95 (App. Div. 1966) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). Like its civil counterpart judicial estoppel, the doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 358-59 (2004). It is applied if the trial court relied on a defendant who was able to convince or mislead the court into taking a position which defendant now urges is error on appeal. Ibid. Prior to acceding to defendant's request, the judge questioned defense counsel as to whether it would be clearer for the jury if the entire indictment, though cumbersome, was set forth because that is what "they have to determine." Defendant's counsel responded that defendant should not have to hear the same crime charged multiple times, and the court should mold the charge so "you don't have to repeat the same charge over and over again because it's the same crime." The judge then responded, "I could put it all together. I'm not sure that that helps the jury out. I suppose it avoids repetition. It doesn't really change the elements." In an effort to understand defendant's counsel better, the judge then asked, "What's the prejudice to your
file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

client with respect to clarifying it for the jury's understanding? I mean, clearly, he is not going to be sentenced if he is found guilty of kidnapping twice." Defense counsel replied: And, theoretically, if the State -- you know, juries do crazy things with different counts of indictments. And if the jury believes that these are separate and distinct crimes, then it makes the defendant look like a worse person. Okay? Because he is charged with four counts of kidnapping in this indictment, so the State is basically saying his is alleged to have done four separate bad acts [instead of two] . . . . .... And I think that that potentially creates a prejudice to the jury. Although expressing some reluctance, the judge, relying on defense counsel's continued assertion that the jury would be prejudiced if it had "to decide [twenty] counts, when six of them are the same charge," acceded, stating: You know, I suppose if you feel that strongly about it, and the State really has no objection to it, so I don't have a problem with combining -- I think it's clearer for the jury in determining what the elements are if we break it out. I don't see doing it this way is terribly much different from the Apprendi[v. New Jersey, 530 U.S 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000)] issue where they are asked to determine separate elements of the same offense because that's really all they're doing is determining separate elements. But if you want me to combine the elements in the verdict sheet and combine the elements in the charge, I really don't have a problem with that. .... . . . You know, it seems to me six of one, half dozen of another. But if you feel that strongly about it you know, I have no problem with doing it. So we will combine them. Our review of the record establishes that the judge relied on defendant's adamant position and was convinced by defendant to combine the different theories of robbery and kidnapping. He was also persuaded by defendant that it did not make a difference. Now, defendant argues, for the first time on appeal, the contrary position that it does indeed make a difference. Under these circumstances, we conclude that any error was invited by defendant. Generally, "except in the most extreme cases trial errors originating with defense counsel will not present grounds for reversal on appeal." State v. Berry, 140 N.J. 280, 302-03 (1995). Where "after-criticized judicial action was reasonably thought to secure a trial or tactical advantage for the defendant," it will not constitute reversible error. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Defendant urges that without a specific unanimity instruction as to each theory, the error "was mortal" and warrants reversal, notwithstanding its invited nature. We disagree. Although our Constitution, art. I, ¶ 9 and R. 1:8-9 require a unanimous verdict in criminal cases, "exactly how it plays out in individual cases is more complicated." State v. Frisby, 174 N.J. 583, 596 (2002). For example, "a
file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

jury does not have to agree unanimously on whether an actor's criminal role is that of a principal or an accomplice. State v. Parker, 124 N.J. 628, 633 (1991), certif. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed.2d 625 (1992). Another example where unanimity is not required is "when a statue embodies a single offense that may be committed in a number of cognate ways." Frisby, supra, 174 N.J. at 597. A specific unanimity instruction is required where a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] the circumstances demonstrate a reasonable probability that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory. [Parker, supra, 124 N.J. at 635 (quoting People v. Melendez, 274 Cal. Rptr. 599, 608 (1990)) (alteration in original).] Where there is "a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts," a specific unanimity charge is required. Id. at 636 (quoting United States v. Payseno, 782 F.2d 832 (9th Cir. 1986)). Although a specific unanimity charge should be given in cases where there is danger of a fragmented verdict, "in the absence of a specific request, the failure so to charge does not necessarily constitute reversible error." Id. at 637. The definitions given for kidnapping and robbery included the alternate charges for each of the offenses. The judge also instructed the jury that it must return a unanimous verdict on each of the charges. There is nothing in the record to indicate that the jury was confused. Plain error, in the context of a jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Afanador, 151 N.J. 41, 54 (1997) (alteration in original). The proofs against defendant were overwhelming. We conclude that any error in failing to provide a specific unanimity charge respecting the separate theories of liability for robbery and kidnapping was harmless beyond a reasonable doubt and could not have influenced the verdict. State v. Alston, 70 N.J. 95, 98 (1976). If anything, defendant received a tactical advantage by the reduction of prejudice, as pointed out by defense counsel. The error did not have the capacity to produce an unjust result. R. 2:10-2. Defendant next contends that the trial judge improperly denied his motion for judgment of acquittal on the kidnapping charge because the State did not prove substantial confinement. He asserts that the confinement established by the evidence was merely incidental to the other crimes. The "broad test" for determination of a motion to acquit "is whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454, 458 (1967). Specifically, an appellate court is constrained to sustain a trial judge's denial of a R. 3:18-1 motion to acquit at the close of the State's case if, "'viewing the State's evidence in its entirety, be that
file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

evidence direct or circumstantial,'" State v. Josephs, 174 N.J. 44, 80 (2002) (quoting Reyes, supra, 50 N.J. at 459), and giving the State the benefit of all reasonable inferences, "'a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" Ibid. Applying this standard, the judge properly denied defendant's motion. N.J.S.A. 2C:13-1b defines kidnapping, in relevant part, as unlawfully confining another for a substantial period, to either (1) "facilitate commission of any crime or flight thereafter;" or (2) "inflict bodily injury on or to terrorize the victim or another." To support a conviction for kidnapping, the confinement must be "'criminally significant in the sense of being more than merely incidental to the underlying crime.'" State v. La France, 117 N.J. 583, 594 (1990) (quoting State v. Masino, 94 N.J. 436, 447 (1983)). In determining whether confinement is more than incidental, the jury must be instructed to look beyond the duration of the confinement to the "'enhanced risk of harm resulting from the [confinement] and isolation of the victim . . . ." Ibid. (alteration in original). It is the enhanced risk of harm that makes the confinement more than merely "ancillary to the crime that was its purpose." State v. Lyles, 291 N.J. Super. 517, 526 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997). Thus, the cases on confinement focus on the enhanced risk of harm rather than on the duration of confinement. For example, in State v. Bryant, 217 N.J. Super. 72, 80-81 (App. Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed.2d 488 (1987), elderly victims in four separate burglaries were bound and gagged and left that way after the defendant fled. The Appellate panel pointed out that the victims' restraint during the burglaries did not make the victims more vulnerable to harm, but their confinement to facilitate the defendant's flight did increase the risk to the victims. There was no one to help them if they had difficulty breathing or suffered a heart attack. Id. at 81; see State v. Denmon, 347 N.J. Super. 457, 465-66 (App. Div.) (upholding kidnapping conviction where elderly victims handcuffed to chairs during robbery because after robbers left, nobody around to help victims), certif. denied, 174 N.J. 41 (2002). In La France, supra, 117 N.J. at 591-93, the Court held that the elements of kidnapping were met where the defendant forced a woman to tie up her husband and then left him in his bedroom for at least thirty minutes while the defendant sexually assaulted the man's wife in the hallway, as the confinement enhanced the terror of the victims. The question to be answered is whether the "asportation or detention . . . during the course of the commission of another crime 'significantly increases the dangerousness or undesirability of the defendant's behavior.'" Id. at 587 (quoting Gov't of Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)). " N.J.S.A. 2C:13-1b clearly makes a confinement for a 'substantial period' a first-degree kidnapping if it facilitates the terrorization or injury of another." La France, supra, 117 N.J. at 593. The key is not necessarily the length of confinement but whether there is an enhanced non-trivial risk caused to one victim who is unable to avert the terror resulting from
file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

the added humiliation resulting from being forced to be present while the defendant committed acts against another. Ibid. Here, as in La France, there was abundant proof that C.P. was confined by the various members of the gang, including defendant, and forced to watch the others rape K.M. and force her to perform oral sex. Equally abundant was the evidence that K.M. was dragged from the car, isolated at the trunk of the car where she was restrained for a significant period while she was raped, then taken by one of the codefendants to a more secluded dark area of the park. We are satisfied that these proofs support an enhanced risk beyond that incident to the individual crimes perpetrated on K.M. Likewise, her captivity while C.P. was repeatedly beaten with a bat in her presence was additional evidence of substantial confinement. See Masino, supra, 94 N.J. at 445-447; State v. Matarama, 306 N.J. Super. 6, 21-22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Further, the taking of K.M.'s car keys, cell phone, and wallet created an enhanced risk of harm for both victims, who were left ostensibly without either a means of transportation or a way to contact someone for help after the perpetrators left. Lastly, defendant argues that his sentence was excessive. We have considered defendant's contention and supporting argument and are satisfied that the presumptive terms imposed are not manifestly excessive or unduly punitive, nor do they constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-64 (1984). It is the trial judge's duty to express the reasons for the imposition of a consecutive sentence. State v. Miller, 108 N.J. 112, 122 (1987). Here, the judge did not discuss the factors required for imposing consecutive sentences. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986). However, "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences." State v. Molina, 168 N.J. 436, 442 (2001). Occasionally, we may dispense with the requirement to remand for reasons for imposing consecutive sentences, especially when they involve more than one victim. Ibid. Defendant has not specifically raised the fact that the trial judge failed to give reasons. While a statement of reasons is crucial to the appellate review, we are satisfied that "the crimes involved multiple victims" and "the convictions for which the sentences [were] imposed are numerous." Yarbough, supra, 100 N.J. at 643-44. Accordingly, we affirm.

Prior to the conclusion of defendant's trial, the State dismissed one of the four second-degree robbery counts. The jury acquitted defendant of third-degree terroristic threats, third-degree possession of a weapon for an unlawful purpose, and aggravated assault.

file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]

a6700-03.opn.html

No Early Release Act, N.J.S.A. 2C:7-1 to -19. When the defendants were arrested, their heights and weights were taken. Defendant was 6'0", 240 pounds. Milbourne was 6'3", but only 170 pounds. Hinson was 6'1" and 155 pounds and Milledge was 5'9", 190 pounds. (continued) (continued) 17 A-6700-03T4 RECORD IMPOUNDED December 6, 2005 0x01 graphic

This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a6700-03.opn.html[4/20/2013 9:05:55 PM]



Download a6700-03.opn.pdf

New Jersey Law