STATE OF NEW JERSEY VS. RENEE S. WAGNER (14-10-0366, WARREN COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1686-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENEE S. WAGNER, a/k/a RENEE MILLER, and RENEE SIMON,

Defendant-Appellant. ___________________________

Argued October 17, 2018 – Decided August 27, 2019

Before Judges Fuentes, Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 14-10-0366.

George T. Daggett argued the cause for appellant.

Kelly A. Shelton, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Kelly A. Shelton, of counsel and on the brief).

PER CURIAM On March 26, 2014, New Jersey State Police Trooper Patrick Wynn

arrested defendant Renee S. Wagner and charged her with obstructing an

investigation of a crime, N.J.S.A. 2C:29-1(b), and providing false information

to a law enforcement officer, N.J.S.A. 2C:29-3(b)(4), both disorderly persons

offenses. Based on the same core of operative facts, a Warren County grand

jury indicted defendant on October 15, 2014, with one count of third degree

resisting arrest, N.J.S.A. 2C:29-2(a). The case came to trial before a jury more

than two years later.

The jury found defendant guilty of resisting arrest as a disorderly persons

offense, as a lesser included offense of the third degree indictable offense, and

the disorderly persons offense of hindering one's own apprehension, and

acquitted defendant of the disorderly persons offense of obstructing the

administration of law.1 On December 14, 2016, the trial judge sentenced

defendant to one year probation, and ordered her to pay the mandatory statutory

penalties. We derive the following facts from the record developed before the

trial court.

1 We must point out that defendant was not entitled to a jury trial on the two disorderly persons offenses of hindering one's own apprehension and obstructing the administration of law. State v. Denelsbeck, 225 N.J. 103, 111- 12 (2016). A-1686-16T4 2 In March 2014, defendant was involved in a minor car accident at a Quick

Chek convenience store and gasoline station. According to defendant, a car

driven by a "young man" named Shane Nolan "tapped" her car, causing "a slight

dent on his side panel and [her] bumper." Defendant testified that Nolan "was

very, very upset" about how his parents would react to this mishap because he

had been in a "pretty severe" accident "a couple of months" earlier. Nolan was

specifically concerned about how this might increase his car insurance premium.

Defendant testified that she told Nolan: "[W]ell, listen, I'm going to give you

my name and my number, when you talk to your parents have them give me a

call and, you know, we can settle it between [ourselves] because it was very

minor."

Trooper Wynn testified that the barracks sergeant received a called about

an automobile accident at the Quick Chek convenience store. Based on

information Nolan provided the sergeant, Wynn reported to the Quick Chek to

see if there was video footage of the accident from the store's surveillance

cameras. Wynn testified the video recording of the accident showed:

Nolan's vehicle at the gas pumps subsequently depart. As he was leaving at the exit portion, the other vehicle came around the side and struck Mr. Nolan's vehicle.

....

A-1686-16T4 3 After the collision, I was able to clearly see both vehicles stopped and the drivers exit both cars, at which point, I was able to observe Mr. Nolan and what appeared to be a [w]hite female with light colored hair in the other vehicle.

Nolan spoke to Trooper Wynn about the accident and gave him a sheet of

paper containing defendant's first name and cellphone number. Trooper Wynn

proceeded to investigate the accident. Based on the information he had at the

time, Trooper Wynn decided to continue the investigation of the accident.

Specifically, he needed "to confirm who . . . was driving that vehicle," and obtain

the vehicle's registration and insurance information. Trooper Wynn testified

that over the next two weeks, he and Nolan called the cellphone number several

times. Trooper Wynn testified he personally left "at least one" voicemail

message over this two-week period.

Defendant acknowledged she received a telephone call during this time

period. She did not return the call because she did not recognize the phone

number. However, the one time she returned the call, she spoke to "a dispatcher

from the State Trooper." She told the dispatcher her name and said she was

returning a call from "somebody" who had called her. The transcription of the

March 26, 2016 telephone call from defendant shows she correctly identified

herself as "Renee Wagner." However, the State Police dispatcher mistakenly

A-1686-16T4 4 refers to her as "Britney Wager." This initial error is soon discovered and

Trooper Wynn was able to speak to defendant. Unfortunately, the recording

ends before the parties began to discuss anything about the accident.

Trooper Wynn testified that he explained to defendant he was

investigating the car accident she had with Nolan and "needed the basic

information to complete [his] job and complete the report[.]" Trooper Wynn

characterized defendant's responses to his questions as "evasive." When he

asked her for her name: "I got several different names of Melody, Melanie, [and]

Melanie May[.]" Based on her failure to provide basic information and overall

uncooperative attitude, Trooper Wynn testified he warned defendant: "You've

lied several times, giving several different names at this point. I do need to

follow up. It's not just going to go away." Trooper Wynn testified the

conversation ended without a satisfactory resolution. Defendant refuted Trooper

Wynn's account of this telephone call. She claimed she was cordial at all times

and offered to come to the State Police Barracks the following day. Defendant

testified that Trooper Wynn responded: "I know where you live and I'll come

and find you." She claimed the conversation ended at this point.

Trooper Wynn testified that after the telephone conversation with

defendant ended, he was able to locate a photograph of defendant and her home

A-1686-16T4 5 address in the State motor vehicle records. He and Trooper Abendschoen were

dressed in their official State Police uniforms when they arrived at defendant's

residence on the evening of March 26, 2014. As he approached the residence,

Trooper Wynn testified he saw an older model black Chevrolet blazer that had

a damaged front quarter panel, which was consistent with the damage of "the

vehicle [he] observed in the surveillance footage[.]" The Trooper went to the

front door of the house and spoke to a man who identified himself as defendant's

former husband; this man told Trooper Wynn that defendant lived on the

property, in a part of the house he referred to as the "annex."

Trooper Wynn testified that he and Trooper Abendschoen proceeded to

the part of the property where defendant resided and announced themselves as

State Police. As he got closer, Trooper Wynn saw an "older female that was

sitting there say something to the two juveniles that were there." The two girls

"immediately . . . stood up and left the room." Trooper Wynn approached the

sliding glass door carrying a flashlight, made eye contact with defendant, and

again identified himself as being with the State Police.

Defendant partially opened the sliding glass door "wide enough" to enable

her to "stick her face through it." This enabled Trooper Wynn to notice that her

eyes were "bloodshot and watery" and her eyelids were "droopy." According to

A-1686-16T4 6 Trooper Wynn, defendant asked him: "well, what do you want?" This enabled

Trooper Wynn "to detect an odor of an alcoholic beverage emanating from her

breath." He told defendant that he was the Trooper who spoke to her earlier that

evening on the telephone and referenced the accident. According to Trooper

Wynn, defendant denied speaking to anyone earlier that night.

Trooper Wynn again advised defendant he was there to investigate the

motor vehicle accident and needed to get from her "basic information" such as

who was driving the car, the registration number of the vehicle, and to see the

insurance identification card. According to Trooper Wynn, defendant remained

uncooperative and defiant. Defendant told the Trooper her name was Melody

or Melanie. When Trooper Wynn told defendant he knew her name was Renee

Wagner, she denied it. When Trooper Wynn confronted her with her driver's

license photograph, defendant "immediately [became] confrontational," claimed

Trooper Wynn had not previously identified himself as a law enforcement

officer, and said: "I don't know who you are. I don't have to tell you anything,

[and] things along those lines."

At this point, Trooper Wynn testified that he advised defendant that if she

continued to refuse to cooperate, he was going to arrest her for hindering an

investigation. Trooper Wynn testified he asked defendant to step outside

A-1686-16T4 7 multiple times; she refused and attempted several times to slam the sliding glass

door closed. The door struck Trooper Wynn's hand several times. At this point,

Trooper Wynn "grabbed her shirt, grabbed her arm, her shoulder . . . to attempt

to stop her from getting inside that house." The Trooper eventually pulled

defendant out of her house, wrestled her to the ground, handcuffed her, and took

her into custody. Trooper Abendschoen corroborated Trooper Wynn's account

of the events that led to defendant's arrest.

Defendant's testimony describing the event that led to her arrest that night

is irreconcilable with the Troopers' testimony. She claimed she responded to

her name; she stepped outside her house when the Trooper asked her to do so;

she was in the process of closing the sliding glass door to prevent her dog from

running out, when Trooper Wynn grabbed her, wrestled her to the ground, and

arrested her. Defendant maintained before the jury that she was injured from

being handcuffed and was significantly bruised by Trooper Wynn's actions.

Defendant testified that Trooper Wynn did not identify himself as a State

Trooper, but that she recognized Trooper Abendschoen as a State Trooper

standing in the background.

Against this factual backdrop, defendant raises the following arguments

on appeal.

A-1686-16T4 8 POINT I

THE TRIAL COURT ERRED IN NOT CHARGING JUSTIFICATION AS AN ELEMENT OF A DISORDERLY PERSONS CHARGE OF RESISTING ARREST.

POINT II

THE FACTS SURROUNDING THE HINDERING APPREHENSION CHARGE CLEARLY ESTABLISH THAT IT WAS DE MINIMIS.

POINT III

THE JURY SHOULD NOT HAVE BEEN PERMITTED TO CONSIDER THE HINDERING APPREHENSION CHARGE.

Defendant's arguments lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Defendant did not ask for a justification defense during the charge conference

conducted pursuant to Rule 1:8-7(b). As an appellate court, we are bound to

disregard any error or omission unless it is clearly capable of producing an

unjust result. R. 2:10-2. There is no factual or legal basis to find defendant

satisfied this heavy burden here. State v. Jordan, 147 N.J. 409, 422 (1997). In

fact, defendant's counsel argued against the trial judge charging the jury with

the lesser included offense of a disorderly persons resisting arrest. Thus, this

A-1686-16T4 9 argument is also precluded under the invited error doctrine. State v. Jenkins,

178 N.J. 347, 359 (2004).

Finally, N.J.S.A. 2C:3-4(b)(1)(a) provides:

The use of force is not justifiable under this section:

(a) To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest[.]

There is no evidence in this record from which a rational jury could find

the arresting officer employed unlawful force to arrest defendant .

However, there is an issue that, although not raised by the parties, must

nevertheless be addressed and corrected. The Judgment of Conviction (JOC)

erroneously reflects defendant was convicted of the disorderly persons offense

of obstructing an investigation under N.J.S.A. 2C:29-1(b). We thus direct the

trial judge to amend the JOC to reflect defendant was acquitted of this offense

and convicted of the disorderly persons offense of hindering an investigation by

providing false information to a law enforcement officer, N.J.S.A. 2C:29 -

3(b)(4).

Affirmed and remanded for amendment of the Judgment of Conviction in

a manner consistent with this opinion. We do not retain jurisdiction.

A-1686-16T4 10