                                NOT FOR PUBLICATION WITHOUT THE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-4136-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RODNEY CAUTHEN, a/k/a
RAHMAN H. MUHAMMAD,

     Defendant-Appellant.
_______________________________

                   Submitted October 2, 2018 – Decided November 19, 2018

                   Before Judges Fisher and Suter.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment Nos. 15-06-
                   0710 and 15-01-0017.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Daniel S. Rockoff, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (Joie D. Piderit, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Rodney Cauthen appeals his conviction for fourth-degree

obstruction, N.J.S.A 2C:29-1(b), claiming the trial court did not make a finding

he "obstruct[ed] the detection or investigation of a crime or the prosecution of a

person for a crime," as required for a fourth-degree conviction. He urges us to

mold the verdict to a disorderly persons offense or remand his case for additional

findings.   Defendant also appeals his five-year sentence for third-degree

possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-

10(a)(1), claiming the judge was influenced by the erroneous conviction for

fourth-degree obstruction. We reverse the obstruction conviction because the

trial court did not make findings that defendant committed all of the elements

required for a fourth-degree offense and remand that charge for further findings

and resentencing. We affirm defendant's conviction and five-year sentence for

third-degree CDS possession.

                                     I.

       Detective Lloyd McNelly of the South Plainfield Police Department was

on routine patrol when he drove past defendant and another person walking on

the opposite side of the road. McNelly could not remember defendant's name,

but was familiar with him from previous police matters.           After learning

defendant's name and that there was an open warrant for him, defendant was


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                                          2
stopped. He tried to flee from the police, was subdued and arrested. The police

found six folds of suspected heroin in defendant's pocket.       Defendant was

charged with third-degree heroin possession.1

      Less than two months later, a resident of South Plainfield was walking his

dog at 3:30 a.m., when he saw two feet "hanging out of a Jeep" that was parked

in the neighborhood. Defendant claimed it was his Jeep but then "took off"

when the resident called 9-1-1.

      Officer Mark Bullock arrived with his canine partner, Blitz, and they

searched the area for about forty minutes. Blitz was able to track defendant to

the backyard of a neighboring house two streets away from the Jeep. Officer

Bullock found defendant "laying on his side up alongside the house like as if he

was trying to hide." Defendant stood up and was "looking and panning and

scanning." Defendant was placed under arrest, but kept his arms "stiffed out,"

which prevented Bullock from handcuffing him. Defendant then "jerk[ed] his

arm up . . . in a fast motion," provoking Blitz, who bit defendant in the arm.

Bullock testified "[defendant was] basically compliant at that point."




1
  Defendant has not appealed the denial of his motion to suppress or conviction
for this possession of CDS offense.
                                                                         A-4136-16T3
                                       3
      The neighbor identified defendant as the person he saw in the Jeep. The

Jeep owner testified that no one but family members had permission to drive the

vehicle.

      Defendant was charged with third-degree possession of heroin under

indictment 15-01-17, N.J.S.A. 2C:35-10(a)(1). A few months later, he was

charged under indictment 15-06-0710 with fourth-degree obstruction, N.J.S.A.

2C:29-1(b) and third-degree burglary, N.J.S.A. 2C:18-2.

      The bench trial on the CDS charge was conducted following denial of

defendant's motion to suppress. The trial court convicted defendant of third-

degree possession of a CDS, finding the State had proven defendant possessed

heroin, knowing it was a Schedule I controlled dangerous substance.

      The bench trial on the burglary and obstruction charges was held several

months later. Defendant was acquitted of burglary because the court found the

State had not proven defendant's entry into the Jeep was "with the purpose to

commit an offense therein." The court convicted defendant of fourth-degree

obstructing the administration of law or other governmental function, finding:

            the defendant committed an act of physical
            interference. That this act was committed with the
            further purpose of preventing a public servant from
            lawfully performing an official function and that in
            committing the act, the defendant did prevent a public


                                                                       A-4136-16T3
                                       4
            servant from lawfully performing the official function
            of placing him under arrest.

      In February 2017, the trial court denied defendant's motion for a new trial

on the obstruction charge. The court stated that although defendant initially

seemed to comply with his arrest, he ultimately did not. There was "flight from

the original location" but the court was not certain that "played a major role in

[his] decision making." Rather, "it was more . . . the physical interference that

had . . . no lawful purpose" that the court considered.

      The court also denied the State's motion to sentence defendant to an

extended term as a persistent offender. In considering the aggravating and

mitigating factors, the court found aggravating factors three (risk of re-offense),

six (criminal history) and nine (deterrence). See N.J.S.A. 2C:44-1(a). The court

gave "heavy" weight to factor nine. It found no mitigating factors. N.J.S.A.

2C:44-1(b). Defendant was sentenced to a five-year term on the CDS third-

degree possession charge and a concurrent term of eighteen months on the

fourth-degree obstruction charge.

      On appeal, defendant raises the following issues:

            POINT I. THIS COURT SHOULD REVERSE THE
            CONVICTION      FOR     FOURTH DEGREE
            OBSTRUCTION, N.J.S.A. 2C:29-1.



                                                                          A-4136-16T3
                                        5
            A.   After a Bench Trial, The Court Failed To Make
            Any Findings On An Element Of Fourth Degree
            Obstruction

            B.   Because The Evidence Was Legally Insufficient
            To Support Fourth Degree Obstruction, This Court
            Should Mold The Verdict To A Disorderly Persons
            Conviction

            C.    Alternatively, This Court Must Remand For
            Findings On The Element Not Addressed By The Trial
            Court

            POINT II. THIS COURT SHOULD REMAND FOR
            RESENTENCING BECAUSE THE MAXIMUM FIVE
            YEAR PRISON TERM IS EXCESSIVE FOR AN
            INDIVIDUAL WITH A SEVERE SUBSTANCE USE
            DISORDER    WHO    WAS CONVICTED OF
            POSSESSING THE SUBSTANCE TO WHICH HE IS
            ADDICTED

            A.   The Trial Court Erred by Weighing the
            Aggravating Factors Too Heavily

            B.    The Trial Court Erred by Failing to Recognize
            Addiction as a Mitigating Factor for Possession of the
            Substance to Which the Defendant is Addicted

                                     II.

      "The State in a criminal prosecution is bound to prove every element of

the offense charged beyond a reasonable doubt." State v. Delibero, 149 N.J. 90,

99 (1997) citing In re Winship, 397 U.S. 358 (1970). "[O]ur Legislature has

. . . provid[ed] that '[n]o person may be convicted of an offense unless each


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                                       6
element of such offense is proved beyond a reasonable doubt.' N.J.S.A. 2C:1 –

13(a)." State ex rel L.W., 333 N.J. Super. 492, 496 (App. Div. 2000) (internal

alterations in original). Defendant contends he should not have been convicted

of fourth-degree obstruction because the court did not find he committed all the

required elements of that offense.

      Under N.J.S.A. 2C:29-1(a) a person commits the offense of obstructing

administration of law or other governmental function where,

            [H]e purposely obstructs, impairs or perverts the
            administration of law or other governmental function or
            prevents or attempts to prevent a public servant from
            lawfully performing an official function by means of
            flight, intimidation, force, violence, or physical
            interference or obstacle, or by means of any
            independently unlawful act. This section does not apply
            to failure to perform a legal duty other than an official
            duty, or any other means of avoiding compliance with
            law without affirmative interference with governmental
            functions.

That offense becomes a crime of the fourth-degree, however, if the person

"obstructs the detection or investigation of a crime or the prosecution of a person

for a crime, otherwise it is a disorderly persons offense." N.J.S.A. 2C:29-1(b).

      The court found the defendant "committed the act of physical

interference," and that this was done "with the further purpose of preventing a

public servant from lawfully performing an official function." The court then


                                                                          A-4136-16T3
                                        7
found that in committing this act, "defendant did prevent a public servant from

lawfully performing the official function of placing him under arrest." However,

the court did not make a finding that "defendant obstructed the investigation or

detection of a crime, or prosecution of a person for a crime," as required for a

conviction under N.J.S.A. 2C:29-1(b). As such, we are constrained to reverse

defendant's conviction for fourth-degree obstruction.

      Defendant requests we mold the verdict to a disorderly person's offense

or in the alternative, remand the case for additional findings. Because the trial

court did not include the required element in making its findings, and did not

find any facts about this requirement, we are satisfied that the appropriate

remedy is to remand "for further findings of fact and conclusions of law on the

record already made." State v. Smith, 253 N.J. Super. 145, 149 (App. Div.

1992). We have not found insufficient evidence to sustain the fourth-degree

conviction and thus, "there is no jeopardy consequence precluding such a

remand." Ibid.

      Further, although defendant was acquitted of burglary, that does not

preclude a finding of fourth-degree obstruction. The trial court must determine

whether there was enough evidence in the record to find defendant obstructed

"the detection or investigation of a crime or the prosecution of a person for a


                                                                        A-4136-16T3
                                       8
crime," which is separate from whether he actually committed burglary.

Because we have reversed the conviction for fourth-degree obstruction, we also

reverse his eighteen-month sentence for that charge and remand for

resentencing.

      Defendant also appeals his five-year term of incarceration for third-degree

possession of CDS. He argues the court weighed the aggravating factors too

heavily because of his conviction for fourth-degree obstruction and should have

recognized defendant's addiction as a mitigating factor.       Our review of a

sentencing determination is limited. State v. Roth, 95 N.J. 334, 363-65 (1984).

We review a judge's sentencing decision under an abuse of discretion standard.

Id. at 363-64. See State v. Fuentes, 217 N.J. 57, 70 (2014).

       The record here does not show an abuse of discretion. Defendant was

sentenced within the sentencing guidelines for a third-degree offense, which is

three to five years. N.J.S.A. 2C:43-6(a)(3). The court's analysis of aggravating

and mitigating factors was based on competent and credible evidence in the

record. The court considered defendant's drug use, addiction and criminal

history. Although the court found defendant "met all the qualifications for an

extended term pursuant to [N.J.S.A.] 2C:43-4(a)," he did not sentence defendant

under that statute. However, the court found the need to deter defendant from


                                                                        A-4136-16T3
                                       9
violating the law weighed heavily in the court's consideration. The court did not

find any mitigating factors.     There was nothing in the record to indicate

defendant's sentence on the CDS charge was influenced by his fourth-degree

obstruction charge.

      Defendant argues that drug addiction should have been considered by the

trial court in mitigation of his sentence. The record showed the trial court was

aware of defendant's drug use and addiction as well as his past refusal to attend

a drug treatment program. The court clearly took all of that into consideration

in sentencing defendant.

      The Court has held in State v. Ghertler, 114 N.J. 383, 390 (1989), that

drug dependency is not a mitigating factor. State v. Clark, 203 N.J. 166, 182

(2010) relied on by defendant, does not require a different result.          Clark

addressed whether the court must conduct a plenary hearing when there is an

objection to an applicant's admission into drug court. In concluding that a

plenary hearing is not required, the Court stated that "[b]ecause the decision

whether to admit the applicant into [d]rug [c]ourt is essentially a sentencing one,

the 'trial judge is required to consider all of the aggravating and mitigating

factors and to find those supported by the evidence.'" Id. at 177 (quoting State




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                                       10
v. Dalziel, 182 N.J. 494, 505 (2005)). Clark did not cite to Ghertler or say that

addiction itself is a mitigating factor.

      Defendant's conviction for fourth-degree obstruction is reversed and

remanded for further findings of fact and conclusions of law based on the record

already made. Defendant's sentence for third-degree possession of CDS is

affirmed.




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