                                NOT FOR PUBLICATION WITHOUT THE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-4251-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ERNEST M. PIERCE, III,
a/k/a ERNEST M. PIERCE,

     Defendant-Appellant.
___________________________

                    Argued February 4, 2019 – Decided March 11, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 15-10-0509.

                    Michael T. Denny, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Michael T. Denny, of
                    counsel and on the brief).

                    David M. Galemba, Assistant Prosecutor, argued the
                    cause for respondent (John T. Lenahan, Salem County
                    Prosecutor, attorney; David M. Galemba, of counsel
                    and on the brief).
PER CURIAM

      A jury convicted defendant Ernest M. Pierce, III, of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); two counts of third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d); and first-degree carjacking, N.J.S.A.

2C:15-2. Defendant raises the following points on appeal:

            POINT I

            DEFENDANT'S CONVICTION FOR CARJACKING
            SHOULD BE VACATED BECAUSE THE STATE
            FAILED TO PROVE BEYOND A REASONABLE
            DOUBT THAT THE VICTIM WAS EITHER IN
            CONTROL OR AN OCCUPANT OF THE CAR
            WHEN THE KEYS WERE TAKEN FROM HIM. (Not
            Raised Below).

            POINT II

            RESENTENCING IS REQUIRED BECAUSE THE
            COURT BASED ITS FINDING OF AGGRAVATING
            FACTOR ONE ON IMPERMISSIBLE GROUNDS.

We have considered these arguments in light of the record and applicable legal

standards and affirm.

                                       I.

      The State's evidence at trial revealed that police responded to a reported

stabbing at a gated apartment complex in Salem City at 9:57 p.m. The first


                                                                        A-4251-16T2
                                       2
officer on the scene entered the apartment of A.R., defendant's stepdaughter, and

saw her bleeding from stab wounds to the neck and head. 1 Another officer who

arrived shortly thereafter saw T.B., defendant's friend, running from the

apartment complex. T.B. told police that defendant had "carjacked him, stole

his car."2 T.B. provided a description of the vehicle. The jury saw video

recordings from both officers' dashboard cameras.

        Eventually, T.B.'s car was located outside the emergency room of a

hospital in Bridgeton. Defendant was inside with a stab wound to his shoulder.

Bridgeton police notified the Salem City Police Department that defendant was

in custody.

        T.B. was a good friend of defendant's and testified about the trip to A.R.'s

apartment. He, and another friend, A.P., picked up defendant and then picked

up defendant's stepdaughters, A.R. and D.A., along with A.R.'s five-year-old

son, before driving to the apartment. T.B. parked the car about ten yards from

the apartment's entrance, next to the bottom of a handicap access ramp that led

to the front door.




1
    We use initials to keep the victims' identity confidential.
2
    T.B.'s father owned the car.
                                                                            A-4251-16T2
                                          3
       At some point, T.B. agreed to drive D.A. to a friend's house, so he and

defendant walked down the ramp to the car. As T.B. entered the vehicle with

keys in hand, another car drove alongside. Defendant abruptly turned and ran

back toward the apartment. T.B. initially waited in his car for three or four

minutes before going back inside himself. Once there, he heard a female voice

say defendant had a knife and saw defendant accusing A.R. of "trying to

[expletive] set [him] up[,]" and stabbing her. T.B. and A.P. ran out of the

apartment as defendant pursued them, first, running toward A.P. who ran off

down an alley, and then toward T.B.

       T.B. was standing "right on the corner of the apartment building, like right

outside by the ramp." As defendant approached, T.B. asked, "Yo [b]ro, what

are you doing?" Defendant waved a knife at T.B. and yelled, "Give me the keys

or I'll kill you." T.B. threw the keys at defendant and fled. Defendant drove

off.

       It suffices to say that A.R. and A.P. testified and confirmed that defendant

stabbed his stepdaughter. Defendant testified on his own behalf, and claimed

A.P. attempted to rob him with a knife, and, in the course of the struggle, stabbed

A.R. Defendant disarmed him and chased after A.P. When defendant realized




                                                                           A-4251-16T2
                                         4
he was stabbed in the shoulder, he pleaded with T.B. to take him to a hospital.

T.B. refused, but threw defendant the keys to his father's car.

      Defense counsel submitted a proposed jury charge to the judge. An

extended discussion ensued, because the carjacking count in the indictment

alleged only that defendant committed the theft of the vehicle by "purposely

put[ting T.B.] in fear of immediate bodily injury"; it did not charge defendant

with knowing conduct. In charging the jury, the judge essentially followed

Model Jury Charges (Criminal), "Carjacking (N.J.S.A. 2C:15-2)" (rev. June 13,

2005) (Model Charge), as apparently modified at defendant's request to omit

references to knowing conduct.

      As given, the charge also omitted the following paragraph from the Model

Charge:

                  Defendant's threat or use of force must be
            directed against either an 'occupant' or a 'person in
            possession or control' of a motor vehicle. However, the
            person need not actually be inside the motor vehicle
            when force is employed or threatened. A person may
            be either an 'occupant' or 'in possession or control' of a
            motor vehicle even when he[] temporarily steps out of
            the motor vehicle.

            [Id. at 4.]

      The proposed charge provided by defense counsel is not part of the

appellate record and the transcript of the charge conference did not discuss this

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                                        5
paragraph.   Thus, we cannot tell whether the paragraph was intentionally

omitted at defendant's request, as the State suggests, or whether its omission was

inadvertent.3 Neither the prosecutor nor defense counsel objected to the charge

as given. The jury convicted defendant of the above charges and acquitted him

of the attempted murder of A.R. and terroristic threats.

      Defendant did not move for a new trial or judgment notwithstanding the

verdict (JNOV). At sentencing, the judge merged the counts of the indictment

that dealt with A.R. — the two assault convictions and one of the weapons

counts — and merged the two counts that dealt with T.B. — the other weapons

offense with the carjacking. The judge found aggravating factors three, six and

nine applied to all counts. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense);

(a)(6) (the extent of defendant's prior criminal record); and (a)(9) (the need to

deter defendant and others). As to the aggravated assault of A.R., the judge also

found aggravating factor one.     See N.J.S.A. 2C:44-1(a)(1) (the nature and

circumstances of the offense and whether it was committed in "an especially

heinous, cruel or depraved manner"). The judge sentenced defendant to an

aggregate term of twenty-years imprisonment, subject to an eighty-five percent



3
  Given the state of the record, we must reject the State's claim that any error
was "invited error." See State v. Jenkins, 178 N.J. 347, 359 (2004).
                                                                          A-4251-16T2
                                        6
period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A.

2C:43-7.2.

                                       II.

      Defendant argues the State failed to prove the essential elements of

N.J.S.A. 2C:15-2(a)(2), which provides that a person is guilty of carjacking "if

in the course of committing an unlawful taking of a motor vehicle . . . he . . .

purposely . . . puts an occupant or person in control of the motor vehicle in fear

of, immediate bodily injury[.]" (emphasis added). According to defendant,

there was insufficient evidence to prove beyond a reasonable doubt that T.B.

was "in control of" the car when defendant threatened him at knifepoint and

obtained the keys. In a single paragraph, defendant also argues the judge's

omission of a portion of the model charge augmented the lack of proof. We

disagree.

      We have explained that N.J.S.A. 2C:15-2 does not "requir[e] that the

defendant use force against an 'occupant' of an automobile only when the victim

is within the actual structure of the vehicle." State v. Williams, 289 N.J. Super.

611, 616 (App. Div. 1996). N.J.S.A. 2C:15-2(a)(1), which provides for an

enhanced penalty upon conviction, see N.J.S.A. 2C:15-2(b), provides that a

person is guilty of carjacking "if in the course of committing an unlawful taking


                                                                          A-4251-16T2
                                        7
of a motor vehicle . . . he . . . inflicts bodily injury or uses force upon an occupant

or person in possession or control of a motor vehicle[.]" (emphasis added).

However, "subsection (2) omits any mention of possession and refers only to an

occupant or person in control." State v. Jenkins, 321 N.J. Super. 124, 132 (App.

Div. 1999). As a result, we have held that "the statutory reference within

subsection (2) to 'in control of' cannot be satisfied by proof of constructive

possession of the car." Ibid. "[S]ubsection (2) . . . requires proof that the

'occupant or person in control' of the vehicle was placed within a heightened

zone of danger with relationship to the subject vehicle." Id. at 131-32.

      In State v. Matarama, the victim parked her car and headed toward the

front door of her home, where two men accosted her and demanded her car keys.

During the ensuing struggle, the victim's house keys were taken and her car keys

went missing and were never found. 306 N.J. Super. 6, 12-13 (App. Div. 1997).

We affirmed the defendant's conviction under subsection (1) of the carjacking

statute. Id. at 18-21.

      In Jenkins, the victim parked his car in a cemetery and walked to a grave

marker before being confronted by the defendant who demanded money; the

victim turned over his wallet.     Once he removed the money and returned the

wallet, the defendant demanded the victim's car keys, which the victim provided.


                                                                               A-4251-16T2
                                          8
321 N.J. Super. at 126-27. We contrasted the facts with those in Matarama,

noting in that case, the victim was "in close proximity to the automobile," which

was the "expressed object of her attackers." Id. at 131.

      We explained:

            [U]nder subsection (2) the State must present evidence
            on the issue of proximity to prove that the victim was
            either an "occupant or in control of" the vehicle.

                    The victim's proximity to the vehicle is relevant
            in several regards. First, it clearly bears upon the
            victim's capacity to control the vehicle, either in terms
            of his own ability to operate it or to bar entry by others.
            It is relevant as well to establish that defendant's actions
            exposed the victim to a particular risk of harm beyond
            mere loss of the vehicle.

            [Ibid.]

We reversed the defendant's carjacking conviction because we were "utterly

unable – as the jury would have been – to conclude that there was proximity of

any sort between [the victim] and his vehicle." Ibid.

      Here, the evidence demonstrated that T.B. parked the car at the bottom of

the ramp leading to A.R.'s apartment, which she described as a "handicap ramp."

The jury was able to see the ramp in the MVR recordings. T.B. testified that

defendant threatened him with the knife and demanded the keys to the car as

T.B. stood at the end of the ramp. The jury also heard testimony from other


                                                                           A-4251-16T2
                                         9
witnesses about the proximity of the car to the ramp. Therefore, the jury was

entitled to infer that T.B. was in close proximity to the vehicle when defendant

threatened him with immediate bodily injury.

      There was no objection to the charge as given, and the omitted paragraph

does not define the terms "person in control." Rather, that paragraph stresses

that the victim could be outside the vehicle and need not be one of its occupants.

This omission did not prejudice defendant. At argument before us, defendant

contended the model charge itself is inadequate because it does not define the

terms. Needless to say, we will not entertain the argument for the first time on

appeal.   State v. Witt, 223 N.J. 409, 419 (2015).       We affirm defendant's

conviction.

      Regarding the sentence, defendant argues the judge's application of

aggravating factor one to the aggravated assault conviction was impermissible

"double counting" because serious bodily injury was an element of the offense.

We again disagree.

      Generally, an element of a crime should not be counted as an aggravating

factor, State v. Kromhold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough,

100 N.J. 627, 633 (1985)), however, "[a sentencing] court . . . does not engage

in double-counting when it considers facts showing [the] defendant did more


                                                                          A-4251-16T2
                                       10
than the minimum the State is required to prove to establish the elements of an

offense." State v. A.T.C., 454 N.J. Super. 235, 254-55 (App. Div. 2018) (citing

State v. Fuentes, 217 N.J. 57, 74-75 (2014)). "A sentencing court may consider

'aggravating facts showing that . . . defendant's behavior extended to the extreme

reaches of the prohibited behavior.'" Fuentes, 217 N.J. at 75 (quoting State v.

Henry, 418 N.J. Super. 481, 493 (Law. Div. 2010)). In particular, "a sentencing

court may justify application of aggravating factor one, without double -

counting, by reference to the extraordinary brutality involved in an offense."

Ibid. (citing State v. O'Donnell, 117 N.J. 210, 217 (1989)).

      That is precisely what the judge did in this case, and we find no basis to

reverse the judge's exercise of his well-reasoned "structured discretion" in

imposing sentence. State v. Case, 220 N.J. 49, 63 (2014).

      Affirmed.




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                                       11
