STATE OF NEW JERSEY VS. MAYHEW D. WATSON, JR. (14-02-0075, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1645-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, v.

MAYHEW D. WATSON, JR., a/k/a MAYHEW D. WATSON,

Defendant-Appellant.

Submitted August 30, 2017 – Decided October 3, 2017

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-02-0075.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the briefs).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Geoffrey Gleason, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Mayhew D. Watson, Jr., was convicted of second degree eluding, N.J.S.A. 2C:29-2(b). The trial judge sentenced him on November 6, 2015, to a nine-year term of imprisonment. Defendant appeals and we affirm.

At trial, the State presented the testimony of two officers and moved into evidence Mobile Video Recorder (MVR) films of the incident. Defendant came to the attention of a Penns Grove patrolman, Christopher Hemple, when he was captured on radar driving approximately 46 miles per hour in a 25 mile per hour zone at 11:00 p.m. The officer activated his lights, and defendant put on his blinker and began to pull over, slowing to a near stop. Suddenly, the car pulled away, traveling on the shoulder of the roadway to the center line of the road, and back again. It passed the Carney's Point Police Headquarters, a high school, and travelled through a well-lit residential area. The vehicle proceeded onto the southbound ramp of Route 295, crossing the yellow line to the driver's left and back to the fog line on the right hand side of the road. The officer followed, with his lights and siren activated. On Route 295, the car suddenly cut in front of a tractor trailer and drove on for seven to eight miles until it finally pulled over and came to a standstill. The jury watched the MVR footage from Hemple's car.

The officer estimated defendant's speed during the chase to have been in excess of 100 miles per hour. When confronted, defendant told Hemple that he did not stop the car because he was looking for a safe place to pull over.

Sergeant John Stranahan, a second Penns Grove officer, also testified. He was Hemple's back up, and his MVR also recorded the event. That CD was also played to the jury. He agreed that defendant's speed, once on Route 295, exceeded 100 miles per hour.

Because another judge had prepared the charges and verdict sheet, the trial judge on the record confirmed counsel's possession of the proposed instructions, drawn from the Model Jury Charges, and asked if they were "acceptable[.]" Both attorneys answered in the affirmative. The trial judge added "Defendant's Election not to Testify," Model Jury Charge (Criminal), "Defendant's Election Not to Testify (2009), and instructed the jury regarding the lesser included offense of third-degree eluding. Model Jury Charge (Criminal), "Eluding an Officer" (2004).

After giving his instructions to the jury, the judge asked if counsel "wish[ed] to be heard with regards to the charge?" Both attorneys declined.

At sentencing, the State unsuccessfully moved for an extended term to be imposed by the judge, pursuant to N.J.S.A. 2C:44-3a. Defendant had been convicted of six prior indictable offenses and was convicted on four separate dates. Although the judge denied the application, he found aggravating factors 3, 6, and 9, and no

3 A-1645-15T⁴ factors in mitigation. N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). The judge found the aggravating factors based on defendant's failure to acknowledge the gravity of the offense that he committed, the extent of his prior record, and the need to deter him and others from engaging in such dangerous conduct. The judge specifically discussed and rejected multiple mitigating factors, including those in defendant's sentencing brief: 2, 4, 8, 9, 10, and 11. N.J.S.A. 2C:44-1(b)(2), (4), (8), (9), (10), (11). He based his decision on defendant's individual circumstances. Relevant to this appeal with regard to mitigating factor 11, the judge observed that defendant's incarceration would undoubtedly cause a hardship on his dependents, however, the hardship was no greater than that inflicted in every case where a family is left without a father. Nothing in the record suggested an excessive or unique hardship.

On appeal, defendant raises the following points:

POINT I

BECAUSE THE JUDGE FAILED TO INSTRUCT THE JURY THAT IT MUST BE UNANIMOUS WITH RESPECT TO THE MANNER IN WHICH A RISK WAS POSED TO ANY PERSON DURING THE COURSE OF AN ELUDING, AND THE VERDICT SHEET DID NOT REQUIRE THE JURY TO SPECIFY WHAT RISK WAS POSED, THE DANGER OF A PATCHWORK VERDICT REQUIRES REVERSAL. U.S. CONST. Art. I, Pars. 1, 9, 10. (Not Raised Below)

POINT II

A POLICE OFFICER FACT WITNESS IMPROPERLY OFFERED OPINION TESTIMONY THAT WATSON'S ACTIONS WERE HAZARDOUS, DENYING THE JURY THE OPPORTUNITY TO SERVE AS THE JUDGES OF THE FACTS AND DENYING WATSON A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947, ART. I, PARS. 1, 9 AND 10) (Not Raised Below)

POINT III

AN EXCESSIVE SENTENCE WAS IMPOSED AFTER THE COURT FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS AND IMPROPERLY CONSIDERED WATSON'S CONTINUED DENIAL OF GUILT

a. The Court Improperly Considered The Fact That Watson Maintained His Claims of Innocence And A Defense At Sentencing

I.

Defendant did not object to the jury instructions now challenged on appeal. See R. 1:7-2 ("except as otherwise provided by R. 1:7-5 and R. 1:¹⁰-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict. . . .") As a result, the plain error standard informs our consideration of defendant's first point. See R. 1:10-2; State v. Wakefield, 190 N.J. 397, 473 (2007). Furthermore, it is presumed that when a defendant does not object to a jury charge, the charge was not mistaken and was unlikely to prejudice defendant's case. State v. Singleton, 211 N.J. 157, 182 (2012).

Defendant contends the jury should have been instructed to reach a unanimous consensus as to which risks were posed by defendant's conduct while he was eluding. He further argues that the verdict sheet improperly failed to elicit a unanimous vote on the nature of the risk. Defendant asserts that this raised the specter of a "patchwork verdict[,]" one in which the jury was not unanimous as to an essential statutory element. We do not agree.

The eluding statute states:

Any person, while operating a motor vehicle . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree, if the flight or attempt to elude creates a risk of death or injury to any person.

[N.J.S.A. 2C:29-2(b).]

In construing a statute, we attempt to discern the meaning and intent of the legislature. The best indicator of such intent is the law's plain language. State v. Gandhi, 201 N.J. 161, 176 (2010). A statute's culpability requirement generally applies to all elements of a crime, "unless a contrary purpose plainly appears." Id. at 177 (citation omitted).

"[A]ny double jeopardy concerns or issues of non-unanimous guilty verdicts, may be addressed by carefully tailored jury instructions, a detailed verdict sheet, or both." State v. Salter, 425 N.J. Super. 504, 516 (App. Div. 2012). However, the need for such tailoring only arises when the language of the statute implicates those issues, at the request of counsel, or due to the circumstances of the offense.

The mere fact that in closing, the prosecutor gave examples of jeopardy created by defendant's conduct, including the risky maneuvers around the tractor-trailer and potential injury to the drivers of three vehicles that defendant passed on Route 295, did not create the need for an unanimity instruction. Defendant did not request one because none was required.

In the absence of such a request, "the failure so to charge does not necessarily constitute reversible error." State v. Parker, 124 N.J. 628, 637 (1991), cert. denied, Parker v. New Jersey, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). To determine if a specific unanimity charge is required, "[t]he core question is, in light of the allegations made and the statute charged, whether the instructions as a whole [posed] a genuine risk that the jury [would be] confused." Gandhi, supra, 201 N.J. at 193 (alterations in original) (quoting Parker, supra, 124 N.J. at 638).

7 A-1645-15T4

On review we ask whether the acts alleged are conceptually similar, or are contradictory, or only marginally related to each other. Ibid. We also ask if there was any tangible indication of jury confusion. Ibid. (quoting Parker, supra, 124 N.J. at 639).

The record is devoid of any indication of jury confusion. Moreover, the very nature of the statute and the prohibited activity is one that involves a continuing course of conduct, identical acts occurring on public roadways. See N.J.S.A. 2C:29-2(b). The acts enumerated by the prosecutor were thus conceptually similar. See Parker, supra, 124 N.J. at 635. The individuals he mentioned, including defendant, were all members of the public whom defendant endangered by the act of eluding. And public safety is the singular focus of the statute, whether the identity of the individuals were known or not known. These instructions were incapable of producing an unjust result. See R. 2:10-2. It is the general public that is the victim here, not any individuals. Thus the court did not err by failing to sua sponte provide a unanimity instruction on the eluding charge or a more detailed jury verdict sheet.

II.

Defendant next contends that Hemple's statement that defendant's act of cutting in front of the tractor-trailer was

8 A-1645-15T4 "very hazardous" was an improper expert opinion proffered by a fact witness. We consider this argument to be so lacking in merit as to not warrant much discussion in a written opinion. See R. 2:¹¹-3(e)(2).

Hemple was describing what he saw and did so as a lay witness. See N.J.R.E. 704. He was not expressing an opinion on the ultimate issue as to whether defendant's driving made him guilty of the offense. He was expressing an opinion from the common sense perspective that, while driving at speeds as high as 100 miles per hour, to cut in front of a tractor-trailer was highly hazardous driving. That un-objected to testimony certainly had no possibility of producing an unjust result.

III.

Given defendant's substantial prior criminal history, the record amply supported the trial judge's conclusion that aggravating factors 3, 6, and 9 applied. The judge was not required to find mitigating factor 11 because defendant lived with two of his children and supported a third. Before the failure to include that factor in the sentencing calculus is considered error, some individualized harm must be demonstrated.

Appellate review of a sentence ensures that the trial court's "exercise of discretion [is] based on findings of fact that are grounded on competent, reasonable credible evidence" and that it

9 A-1645-15T4 "appl[ied] correct legal principles in exercising its discretion." State v. Roth, 95 N.J. 334, 363 (1984). Sentences should be modified only if a trial court makes "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. Aggravating and mitigating factors identify "individual circumstances which distinguish the particular offense from other crimes of the same nature." State v. Yarbough, 195 N.J. Super. 135, 143 (App. Div. 1984), remanded for resentencing on other grounds, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

In this case, the aggravating factors were supported by the record. In contrast, the record did not support a single mitigating factor.

We review "a trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)). We do not substitute our judgment for that of the sentencing court. Id. at 606. We are satisfied the trial court followed the sentencing guidelines, and its findings of fact and application of the statutory sentencing factors were based on competent credible evidence in the record. The term of years imposed does not shock the judicial conscience. See State v. Bolvito, 217 N.J. 221, 228 (2014). The judge's sentencing decision was thus entirely proper.

Affirmed.

Footnotes

[2] A-1645-15T4

[4] A-1645-15T4

[5] A-1645-15T4

[6] A-1645-15T4

[10] A-1645-15T4

[11] A-1645-15T4