STATE OF NEW JERSEY VS. RENEE S. WAGNER (14-10-0366, WARREN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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