                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4641-12T4



STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,                  January 6, 2015

v.                                        APPELLATE DIVISION

HUGO FIERRO,

     Defendant-Appellant.

____________________________________

         Submitted November 13, 2014 – Decided January 6, 2015

         Before Judges Ashrafi, Kennedy, and
         O'Connor.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Indictment
         No. 12-05-1305.

         Fusco & Macaluso, L.L.C., attorneys for
         appellant (Amie E. DiCola, on the brief).

         Carolyn A. Murray, Acting Essex County
         Prosecutor, attorney for respondent (Andrew
         R. Burroughs, Special Deputy Attorney
         General/Acting Assistant Prosecutor, of
         counsel and on the brief).

     The opinion of the court was delivered by

ASHRAFI, J.A.D.
    Defendant Hugo Fierro, formerly a City of Newark police

officer, appeals from his conviction by a jury for simple and

aggravated assault and for official misconduct.   We affirm.

    In May 2012, defendant was indicted by a grand jury on five

counts: (Count One) second-degree official misconduct, N.J.S.A.

2C:30-2; (Count Two) third-degree aggravated assault causing

significant bodily injury, N.J.S.A. 2C:12-1(b)(7); (Count Three)

third-degree aggravated assault with a deadly weapon, N.J.S.A.

2C:12-1(b)(2); (Count Four) fourth-degree aggravated assault by

pointing a handgun at another person, N.J.S.A. 2C:12-1(b)(4);

and (Count Five) second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a).

    Defendant was tried before a jury in February 2013.      The

jury acquitted him of aggravated assault as charged in the

second count, which required proof that he caused or attempted

to cause significant bodily injury, and it acquitted him of the

fourth and fifth counts charging the pointing and unlawful

possession of his handgun.   The jury found defendant guilty of

simple assault as a lesser-included disorderly persons offense

of the second count of the indictment, and guilty of third-

degree aggravated assault with a deadly weapon and second-degree

official misconduct.




                                2                         A-4641-12T4
     On April 29, 2013, the court sentenced defendant to five

years imprisonment without parole.    The five-year prison term

was the minimum sentence required under a statute enacted in

2007 that imposes mandatory sentences without parole if a public

official commits certain crimes, including official misconduct,

and the crime "involves or touches such office or employment."

N.J.S.A. 2C:43-6.5.1

     The evidence at the trial showed the following facts.

Defendant was born in Ecuador and is a naturalized citizen of

the United States.     He was a long-time resident of Newark and an

eleven-year veteran of the Newark Police Department.    While off-

duty on the night of May 7 into May 8, 2011, defendant and his

wife went to dinner, followed by several hours of dancing.

After the dancing, they went to a bar in the Ironbound section

of Newark for coffee and a nightcap.

     When they arrived outside the bar, defendant saw several

men drinking openly on the sidewalk.    He went toward the men and


1
  The judgment of conviction contains an error. It was the
court's intention to sentence defendant to five years
imprisonment without parole on Count One charging official
misconduct, three years imprisonment for aggravated assault with
a deadly weapon as charged in Count Three, and six months
imprisonment for simple assault, the lesser-included offense of
Count Two. The sentences run concurrently. The judgment of
conviction entered on April 30, 2013, mistakenly reverses the
sentences on Counts Two and Three. We remand to the trial court
for correction of the judgment of conviction.



                                  3                         A-4641-12T4
ordered them to disperse.   He then saw a man swaying and

stumbling near the entrance of the bar.    Defendant identified

himself as a police officer and spoke to the man for several

minutes.   He then took the man by the arm and led him toward the

street for the purpose of getting a taxi to take the man home.

    As defendant was talking with the intoxicated man in an

animated manner, another man approached.    We will refer to the

other man as the victim of the assault by defendant.     The

versions of defendant and the victim differ regarding what

occurred next.

    The victim testified in Spanish at defendant's trial that

he had spent the night at someone's house watching boxing

matches on television.   At about 1:45 a.m., he was on his way to

the same bar to which defendant and his wife were going.       He

testified that he was not drunk.    As he walked from his car

toward the bar, he was holding his car keys tied to a string.

He saw two men talking in the middle of the sidewalk.    When he

got closer, one of the men, later identified as defendant,

yelled to him "what's your problem?   What's your problem?"

    According to the victim, defendant then tried to grab him

by the front of his shirt, and the victim pushed defendant's

hand away.   As defendant tried to grab the victim a second time,

the victim saw defendant take a handgun from his side.




                                4                              A-4641-12T4
Defendant said he was a police officer, and the victim began

backing away.   Defendant came after the victim, pushed him in

the chest, and then hit him in the face with the barrel of the

gun he was holding.   The victim turned and ran towards his home,

his nose bleeding.

    At home, the victim told his wife what happened.     She

washed off his face and gave him medicine to ease the pain of

his swollen nose.    He did not seek additional medical treatment,

and he threw out the shirt on which he had bled.    The next day,

the victim and his wife went to the bar and learned that the man

who had struck him was in fact a police officer.    They went to

the police station and reported the incident.

    Police investigators testified that they showed the victim

a photo array several months after the incident and he selected

defendant's photograph as possibly the man who had struck him,

but he was not positive of the identification.     However, the

incident had been recorded by a stationary outdoor surveillance

camera, and defendant was identified positively as the officer

who had struck the victim.

    In the defense case, defendant first called a police

lieutenant who had taken the report of the incident from the

victim and his wife the day after it happened.     The lieutenant

testified that he formally reported the matter to the Newark




                                 5                          A-4641-12T4
Police Department's internal affairs unit.    He also testified

that he saw no visible sign of injury to the victim's nose or

face.

    Defendant testified that his actions that night were

justified.    He said he was trying to help the intoxicated man,

and the victim interfered and would not stand back.   The victim

continued approaching when defendant identified himself as a

police officer and was making derogatory comments to defendant.

According to defendant, the victim was yelling "f*** you, you're

not a cop," and called defendant "extranjeros," which is an

insulting term referring to a foreigner.    Defendant testified

that he held out his hand to create space between himself and

the victim.   The victim slapped defendant's hand away twice.

    Defendant believed the victim was intoxicated and might be

armed.   He noticed a shiny object attached to a string in the

victim's hand and believed it could possibly be a knife or a

small gun.    Defendant drew his gun and pushed the victim "hard

in the chest with his weapon hand," at which point the victim

turned and ran away.   Defendant admitted he pushed the victim

three times before striking him with the hand in which he was

holding his gun.   He also conceded that the victim never

responded with force during the incident.




                                 6                          A-4641-12T4
    The soundless surveillance film revealed the following.

When defendant first arrived outside the bar, his attention was

drawn to something outside the range of the surveillance camera.

He became actively involved with other people on the sidewalk

and in the general area of the bar.    He seemed to be directing

another man toward the street and ordering him to move away.      He

then returned in the direction of the bar and spoke for more

than a minute with an unidentified man near the entrance, who

may have been intoxicated.   As the two were speaking on the

sidewalk, the victim approached.

    Defendant's encounter with the victim lasted about twenty

seconds.   The video shows the victim walking toward defendant,

who is in the middle of the sidewalk holding the unidentified

man's arm with his right hand.     The victim veers to one side as

he apparently sees the two men in his path.    While the victim is

still a car-length away from defendant and the unidentified man,

defendant gestures toward him with his hand and appears to say

something to the victim.   The victim then attempts to walk

around defendant toward the entrance of the bar, but passes

close to defendant and the unidentified man.     The video does not

show whether the victim is speaking to defendant, although his

face is turned toward defendant as he walks by slowly.




                                 7                          A-4641-12T4
    Defendant turns quickly and reaches for the victim with his

right hand.   The victim swats defendant's hand away.    In

response, defendant steps away from the unidentified man and

hits the victim in the chest with his left hand while at the

same time removing his gun from his side with his right hand.

The victim steps back.    His arms are at or near his sides.     A

long band (apparently attached to the victim's car keys) can be

seen dangling from one hand of the victim.    His other hand

appears to hold nothing.    The victim does not display any

physical aggression.    Both defendant and the victim appear to be

speaking toward each other.

    At that point, defendant moves toward the victim and

quickly hits him again in the chest with his left hand.       This

causes the victim to take another step or two back.     Defendant

then swings at the victim with his right hand, in which he is

holding his gun.    Although not clear on the video, it appears

that defendant's right hand strikes the victim on the bottom

half of his face or in the neck area.    The victim immediately

begins to run.     Defendant walks after him still holding his gun.

    Defendant's wife then goes into the bar and comes out a

short time later accompanied by two men.    The three walk out of

view in the direction that the victim and defendant went.       Less

than a minute later, they return with defendant, who is talking




                                  8                           A-4641-12T4
to the two men in a friendly manner.    All four walk into the

bar.

       At the trial, defendant testified that he chased the victim

for nearly a minute before losing him.    He stated he did not

call for police backup because his wife had his cell phone.       As

he walked back toward the bar, he was met by his wife and also a

police sergeant and a lieutenant that he knew.

       The two superior officers testified in the State's case at

the trial that they had been dining inside the bar when

defendant's wife came in and told them something was happening

that involved defendant.    They were acquainted with defendant

from their police duties but did not socialize with him.

Neither saw what happened outside during the altercation.     When

they came out of the bar and met defendant, he told them

everything was all right and that "he handled the situation."

They were not aware that night that defendant had drawn his gun

during the incident.

       Defendant knew that police department rules required him to

prepare an incident report and a use-of-force form because he

had drawn and used his gun during the incident.    He testified he

did not fill out the forms because the victim outran him and he

did not think it would be helpful to the situation.




                                 9                          A-4641-12T4
    As stated previously, the jury convicted defendant of some

of the charges in the indictment and acquitted him of others.

    On appeal, defendant argues:

          POINT I
          THE COURT SHOULD REVERSE OFFICER FIERRO'S
          CONVICTION BECAUSE THE TRIAL COURT
          ERRONEOUSLY SHIFTED THE BURDEN OF PROOF UPON
          THE DEFENDANT WHEN IT REQUIRED OFFICER
          FIERRO TO TESTIFY BEFORE IT WOULD PERMIT A
          USE OF FORCE INSTRUCTION TO BE GIVEN TO THE
          JURY.

          POINT II
          THE COURT SHOULD REVERSE OFFICER FIERRO'S
          CONVICTION BECAUSE THE JURY'S VERDICT IS
          FATALLY FLAWED SINCE IT NEGATES THE
          ESSENTIAL ELEMENTS OF AGGRAVATED ASSAULT
          WITH A DEADLY WEAPON.

          POINT III
          THE COURT SHOULD REVERSE OFFICER FIERRO'S
          CONVICTION BECAUSE THE VERDICT IS AGAINST
          THE WEIGHT OF THE EVIDENCE.

    Defendant argues first that the trial court erroneously

denied his attorney's request at the close of the State's case-

in-chief to include a use-of-force instruction pursuant to

N.J.S.A. 2C:3-7(a) as part of the court's final charge to the

jury.   See Model Jury Charge (Criminal), "Use of Force in Law

Enforcement" (1983).   He contends the court's erroneous ruling

"compelled [him] to present evidence at trial" and thus shifted

the burden of proof to him in defense of the criminal charges,

which is a violation of his constitutional right to due process.




                                10                        A-4641-12T4
    In a criminal prosecution, the State bears the burden of

proving all elements of the crimes charged beyond a reasonable

doubt, and the defendant is not obligated to present witnesses

or testify to establish a defense.   In re Winship, 397 U.S. 358,

364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970); Speiser

v. Randall, 357 U.S. 513, 525-26, 78 S. Ct. 1332, 1342, 2 L. Ed.

2d 1460, 1472-73 (1958); State v. Anderson, 127 N.J. 191, 200-01

(1992).   While a defendant bears the burden of proof with regard

to an affirmative defense, such a defense can be proven with

evidence presented during the State's case.   State v. Chiarello,

69 N.J. Super. 479, 498 (App. Div. 1961), certif. denied, 36

N.J. 301 (1962).

    After the State completed presentation of its case, the

trial judge tentatively denied defense counsel's request for a

jury instruction in accordance with N.J.S.A. 2C:3-7(a) that

defendant could use reasonable force to perform his police

duties.   The judge ruled that a use-of-force defense was not

supported by the evidence presented up to that point in the

trial because the record did not contain any evidence of a

necessary element of that defense – that defendant was making an

arrest.   The judge offered to instruct the jury on self-defense,

but not use-of-force by a police officer unless evidence was

presented that defendant was attempting to make an arrest.    The




                                11                        A-4641-12T4
judge clearly indicated that he was "basing [the ruling] on the

facts that have been submitted so far in this case."    He added:

"If something else develops I'll revisit it if [defense counsel]

ask[s] me.    As of right now, use of force is not involved in

this case."

    Defendant then called witnesses and testified himself,

presenting his version of what had occurred.    At the close of

defendant's case, the judge ruled that the foundation for a use-

of-force instruction had been presented in evidence, and he

instructed the jury accordingly before the deliberations began.

Defendant has not argued that the instruction that the judge

gave was erroneous or inadequate.

    N.J.S.A. 2C:3-7(a) provides that a police officer's use of

force in the execution of his public duty "is justifiable when

the [officer] is making . . . an arrest and . . . reasonably

believes that such force is immediately necessary to effect a

lawful arrest."    Defendant claims he was entitled to a jury

instruction based on the statute without the need to testify

regarding his version of the incident.

    When a defendant requests a jury instruction on a defense

in the case, the court should give such an instruction "if . . .

there is a rational basis in the record to give it."    State v.

Walker, 203 N.J. 73, 87 (2010); accord State v. Kelly, 97 N.J.




                                 12                        A-4641-12T4
178, 200 (1984); State v. Blanks, 313 N.J. Super. 55, 69-70

(App. Div. 1998).   However, where a defendant fails to point to

any facts that provide a rational basis from which a jury could

infer that his actions were justified, the trial court may

properly decline to instruct the jury as to that defense of

justification.   State v. Josephs, 174 N.J. 44, 102-03 (2002).

    Here, the trial judge correctly determined that no rational

basis had been provided to instruct the jury on the use of force

by a police officer at the end of the State's case-in-chief.     At

that point, there was no evidence before the jury that defendant

was attempting to arrest either the victim or the unidentified

man who appeared to be intoxicated.

    Defendant argues incorrectly that the judge refused to give

the jury instruction he requested unless he testified, thus

violating his constitutional right to remain silent at his

trial.   The judge did not impose a condition that defendant

testify.   He simply ruled that, at the time defense counsel made

the request, foundational evidence to support the jury

instruction had not been produced in the trial record.   That

ruling was correct.

    Neither the testimony of the State's witnesses nor the

surveillance video indicated that defendant was arresting the

victim when he struck him with his gun.   Rather, the State's




                                13                        A-4641-12T4
evidence indicated an off-duty altercation between defendant and

the victim.   The video showed that defendant reacted immediately

to the victim's approach and attempted to push him away.

Defendant was not attempting to apprehend or subdue the victim.

Nor was he arresting the allegedly intoxicated man.

    Within seconds of the victim's approach to the area, and

without the victim showing any physical aggression, defendant

drew his gun and pushed the victim.    The victim was backing

away.   The fact that at some point defendant identified himself

as a police officer did not lend support to his contention that

he was attempting to make an arrest.   Nor did defendant submit a

use-of-force report to the police department indicating that he

was attempting to make an arrest when he drew his gun and struck

the victim.

    Defendant contends the court "could have found that

[defendant] was in fact acting in an official capacity when he

[]drew his weapon" and that he was "executi[ng] his public duty"

to clear the sidewalk of persons who were causing a disturbance.

However, without foundational evidence supporting defendant's

contention that the victim was interfering with his police

duties and causing a disturbance, and that defendant was trying

to arrest him, a use-of-force charge under the statute was not

warranted.    The trial judge correctly declined to give the




                                 14                        A-4641-12T4
requested charge at the end of the State's case-in-chief and

waited until an evidential foundation had been presented to the

jury in the defense case.

    Defendant argues next that the jury's split verdict shows

it did not understand the elements of aggravated assault with a

deadly weapon.   The jury acquitted defendant of possession of a

weapon for an unlawful purpose and of aggravated assault by

pointing a handgun at another person, and yet it convicted him

of aggravated assault with a deadly weapon.   Defendant claims

the acquittals show the jury did not find all the essential

elements of aggravated assault with a deadly weapon.

    "Consistency in the verdict is not necessary.    Each count

in an indictment is regarded as if it was a separate

indictment."   Dunn v. United States, 284 U.S. 390, 393, 52 S.

Ct. 189, 190, 76 L. Ed. 356, 358 (1932).   A jury verdict, even

an inconsistent one, is upheld on appeal if the evidence is

sufficient to establish guilt on the count of conviction.

United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478,

83 L. Ed. 2d 461, 470 (1984).   The Supreme Court of New Jersey

has adopted the Dunn/Powell rule of law where a defendant claims

an inconsistent verdict.    State v. Banko, 182 N.J. 44, 54

(2004).   Reviewing courts may not speculate on whether a jury

verdict that seems inconsistent was the result of a mistake,




                                 15                           A-4641-12T4
compromise, or lenity.     State v. Muhammad, 182 N.J. 551, 578

(2005).

     Relying on an unpublished opinion of this court,2 defendant

contends he is not arguing that the verdict was inconsistent but

that it demonstrates the jury did not understand the law and the

necessary elements of the aggravated assault charge.

     The charge of aggravated assault by pointing a handgun

required the State to prove that defendant "[k]nowingly under

circumstances manifesting extreme indifference to the value of

human life point[ed] a firearm . . . at or in the direction of

another . . . ."     N.J.S.A. 2C:12-1(b)(4).   The jury saw the

surveillance video and could determine from it that there was

insufficient evidence that defendant pointed the gun at the

victim.

     With respect to possession of the weapon for an unlawful

purpose, the State was required to prove that defendant had "in

his possession any firearm with a purpose to use it unlawfully

against the person or property of another . . . ."      N.J.S.A.

2C:39-4(a)(1).     The jury heard testimony that defendant was

legally permitted to carry his gun when he was off-duty.      It

could base its acquittal of defendant on that testimony as well


2
  Pursuant to Rule 1:36-3, an unpublished opinion does not
constitute precedent and is not binding upon any court.



                                  16                         A-4641-12T4
as the absence of evidence other than the assault itself that

defendant had an unlawful purpose in possessing the gun.

    On the other hand, the crime of aggravated assault with a

deadly weapon required the State to prove that defendant

purposely or knowingly caused or attempted to cause "bodily

injury to another with a deadly weapon."   N.J.S.A. 2C:12-

1(b)(2).   The video showed defendant removing the gun from his

clothing and, without visible provocation, hitting the victim

with the gun.   The victim testified that the blow landed on his

face, causing his nose to bleed and to swell.

    The incident happened quickly, and the jury could have

determined that defendant was in lawful possession of his

service weapon but that his use of it to strike the victim in

the face was an unjustified assault with a deadly weapon.

N.J.S.A. 2C:11-1(c) provides:

           "Deadly weapon" means any firearm or other
           weapon, device, instrument, material or
           substance, whether animate or inanimate,
           which in the manner it is used or is
           intended to be used, is known to be capable
           of producing death or serious bodily injury
           or which in the manner it is fashioned would
           lead the victim reasonably to believe it to
           be capable of producing death or serious
           bodily injury.

The fact that defendant did not fire a shot or point the gun at

the victim did not preclude the jury from determining that

defendant's actions could cause serious injury and that the



                                17                           A-4641-12T4
handgun, a two-and-a-half pound metal object, constituted a

deadly weapon.    See State v. Burford, 163 N.J. 16, 18 (2000)

(the term deadly weapon includes a "class of objects having a

wide variety of lawful uses but . . . which may take on the

character of a deadly weapon depending on the circumstances" and

the defendant's intention to use the object as a weapon

(internal quotation marks and citations omitted)).   There was

sufficient evidence for the jury to find defendant guilty of

aggravated assault with a deadly weapon because of the manner of

his use of the gun to strike the victim.

    Finally, defendant argues that we should set aside the

jury's verdict because it was against the weight of the

evidence.    He asserts that the victim's testimony was not

credible in denying that he provoked defendant or that he

suffered injury to his nose.

    We do not consider a weight-of-the-evidence argument on

appeal unless the appellant moved in the trial court for a new

trial on that ground.    R. 2:10-1; State v. Perry, 128 N.J.

Super. 188, 190 (App. Div. 1973), aff’d, 65 N.J. 45 (1974).

Defendant has not provided a record to us indicating that he

made such a post-trial motion.   His argument is not cognizable

on appeal.




                                 18                           A-4641-12T4
    Moreover, it lacks merit.    A rational jury could conclude

beyond a reasonable doubt from the video evidence alone that

defendant unjustifiably struck the victim with the hand in which

he held his handgun.   An attempt to cause injury satisfies the

assault statutes on which defendant was convicted.    N.J.S.A.

2C:12-1(a)(1), (b)(2).    The jury had the opportunity to observe

the witnesses' testimony first-hand and the surveillance

recording, and it determined beyond a reasonable doubt that

defendant was guilty of the assault charges.

    The jury also could reasonably conclude that defendant's

actions constituted an unauthorized exercise of his official

functions as a police officer, that defendant knew his actions

were unauthorized, and that his purpose was to injure another

person.   Those findings support a guilty verdict on the charge

of official misconduct.    N.J.S.A. 2C:30-2.

    Affirmed.   Remanded for correction of the judgment of

conviction.   We do not retain jurisdiction.




                                 19                        A-4641-12T4
