STATE OF NEW JERSEY v. RONRAY L. HARRIS (17-05-0307, CAPE MAY COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3745-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONRAY L. HARRIS,
a/k/a RON RAY, RONALD
HARRIS, RONRAY HARRIS,
RONALD R. HARRIS, RON
MARROW, RON R. HARRIS,
RONRAY L. HARRIS, and
RON HARRIS,
Defendant-Appellant.
_____________________________
Argued September 15, 2021 - Decided October 14, 2022
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Cape May County, Indictment No.
17-05-0307.
Nakea J. Barksdale, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Nakea J.
Barksdale, of counsel and on the brief).
Gretchen A. Pickering, Senior Assistant Prosecutor,
argued the cause for respondent (Jeffrey H.
Sutherland, Cape May County Prosecutor, attorney;
Gretchen A. Pickering, of counsel and on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Defendant Ronray L. Harris was charged in a five-count indictment with
first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d); and fourth-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(a).1 The jury acquitted him of the weapons
charges, and the judge thereafter dismissed the certain persons offense.
Defendant was convicted of third-degree theft from the person, N.J.S.A.
2C:20-2(b)(2)(d), and second-degree aggravated assault. The judge sentenced
defendant to a discretionary extended prison term of sixteen years on the
aggravated assault, subject to the periods of parole ineligibility and
1
A subsequent indictment charged defendant with third-degree bail jumping,
N.J.S.A. 2C:29-7. Defendant pleaded guilty to the charge and was sentenced to
three years in State prison concurrent to the sentence imposed in this matter.
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supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and to a concurrent five-year term on the theft.
At trial, the State established that shortly after 3:30 a.m. on February 23,
2017, Wildwood Police received a 911 call from Gerald Saunders claiming
he'd just been stabbed at the bus station and needed an ambulance. The two-
minute call was played for the jury. Saunders identified defendant as his
assailant, and claimed defendant stabbed him just after Saunders got off the
bus. Saunders also told the dispatcher defendant ran off with Saunders' work
coat.
When police arrived, they found Saunders bleeding from a gash on his
arm and a puncture wound in his back. The bus driver testified that although
she didn't know his name, Saunders was a regular on her bus, which he took to
work. The driver testified that after Saunders got off the bus that morning and
was retrieving his bike from inside a cargo hold near the door, she heard a man
approach him. The two walked toward the doors of the bus terminal and began
to fight. Then Saunders ran back to the bus, told the driver he'd been stabbed
and asked her to call the police. The jury viewed a New Jersey Transit video
of the altercation outside the bus.
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The video showed a man in a black jacket and hooded sweatshirt
approach Saunders as he was removing his bike from the cargo hold. The two
appear to exchange words and, after the man appears to lunge at Saunders, one
or two blows. As the man drags Saunders' bike away from the bus, Saunders
follows, taking off a bright blue jacket and laying it across a trash receptacle as
he does so. When Saunders catches up to the man and attempts to yank his
bike back from him, the two square up. A quick exchange of blows follows,
and then Saunders backs quickly away from the man and turns to run toward
the bus as the man follows. Saunders enters the bus briefly and the man walks
out of the terminal, picking up Saunders' jacket, which he carries off with him.
Saunders starts to follow the man to the exit and then pulls out a cell phone.
The entire altercation occurs in less than two minutes.
The responding officer told the jury Saunders was bleeding from his arm
and back, and the wounds looked as though he'd been stabbed. In an audio
recording from the officer's body camera played for the jury, Saunders told the
officers what happened. He claimed he and defendant had previously had an
argument over defendant trying to take a puppy without paying for it. And
that morning as he was getting his bike out of the bus, defendant came up
behind him and said, "See, I could've had you" and dragged his bike off.
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Saunders followed him, taking off his coat and trying to get his bike back,
telling defendant "Yo, I gotta go to work." Saunders claimed that after he took
off his coat, defendant "just started juggin." Saunders told the officer he didn't
see a knife and didn't realize he'd been cut until he went to throw a punch and
saw his arm was bleeding. He again identified defendant as the man who'd
stabbed him and provided a description for the officers. The officer testified
no knife or other weapon was ever recovered.
The EMT who tended to Saunders agreed with the officer the wounds
appeared to be stab wounds. He testified the technicians could not get the
bleeding from the puncture wound in Saunders' back under control and feared
there had been damage to an artery or internal organ. The technicians
requested the assistance of an advanced life support unit, and after
rendezvousing with that unit, asked for a medevac helicopter. That request
was declined due to weather conditions, and Saunders was taken by ambulance
to the hospital.
Saunders also testified. He initially denied he'd made the 911 call.
After being shown the transcript of the call, Saunders admitted he'd placed it.
He explained he'd identified defendant as the man who attacked him, "[c]ause I
thought it was him," but denied he'd been stabbed that night, testifying he was
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"cut." He explained he and defendant had previously had "a little argument,
confrontation" after defendant attempted to take a puppy Saunders had without
paying full price, "[s]o the night I got stabbed I thought it was him." Saunders
denied speaking to an officer at the bus terminal. He also claimed he could not
remember what he'd said in the statement he'd made to the detective at the
hospital. He could not remember telling the responding officers it was
defendant who'd stabbed him or identifying defendant in a photo in the
hospital. He did, at the prosecutor's request, show his scars to the jury.
Following a Gross2 hearing, defendant's statement to the detective, in
which he identified defendant's photo and confirmed he was the man who
stabbed him, was played for the jury. The detective testified Saunders told
him defendant had dated Saunders' girlfriend's daughter, and that he'd known
him since he was twelve years old. Defendant did not testify.
Defendant raises the following points on appeal:
POINT I
THE FAILURE OF THE TRIAL COURT TO
INSTRUCT THE JURY ON MUTUAL COMBAT AS
A LESSER-INCLUDED OFFENSE OF
AGGRAVATED ASSAULT CONSTITUTED A
VIOLATION OF DEFENDANT’S RIGHT TO DUE
PROCESS OF LAW AND A FAIR TRIAL. U.S.
2
State v. Gross, 121 N.J. 1 (1990).
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CONST. AMENDS. VI AND XIV; N.J. CONST.
ART. I, PARS. 9 AND 10.
POINT II
DEFENDANT'S SENTENCE OF 16 YEARS WITH
AN 85% PAROLE DISQUALIFIER FOR THEFT,
AGGRAVATED ASSAULT, AND BAIL JUMPING
IS EXCESSIVE, UNDULY PUNITIVE, AND MUST
BE REDUCED BECAUSE THE TRIAL COURT
ERRED IN ITS FINDING AND WEIGHING OF
AGGRAVATING AND MITIGATING FACTORS.
U.S. CONST. AMENDS. VI AND XIV; N.J. CONST.
ART. I, PARS. 9 AND 10.
After having reviewed the record, we reject both arguments.
There is no question but that "[a]ppropriate and proper charges to a jury
are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982).
"[E]rroneous instructions on material issues are presumed to be reversible
error, excusable only if they are harmless beyond a reasonable doubt." State v.
Crisantos, 102 N.J. 265, 273 (1986). "The test of whether an error is
harmless," however, "depends upon some degree of possibility that it led to an
unjust verdict." State v. Burton, 309 N.J. Super. 280, 289 (App. Div. 1998).
"The possibility must be real, one sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it otherwise might not have reached."
Ibid.A-3745-18
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The judge charged the jury at defendant's request with all lesser included
offenses of robbery and aggravated assault, including third-degree theft from a
person, N.J.S.A. 2C:20-2(b)(2)(d); third-degree aggravated assault, bodily
injury purposely or knowingly with a deadly weapon, N.J.S.A. 2C:12-1(b)(2);
third-degree aggravated assault, significant bodily injury, N.J.S.A. 2C:12-
1(b)(7); fourth-degree aggravated assault, bodily injury recklessly with a
deadly weapon, N.J.S.A. 2C:12-1(b)(3); as well as the disorderly persons
offenses of simple assault, bodily injury purposely, knowingly or recklessly,
N.J.S.A. 2C:12-1(a)(1); and simple assault, negligent bodily injury with a
deadly weapon, N.J.S.A. 2C:12-1(a)(2). Defendant also asked for a petty
disorderly persons offense charge under N.J.S.A. 2C:12-1(a) for simple assault
"committed in a fight or scuffle entered into by mutual consent," based on
Saunders having taken off his jacket and putting "his hands up to engage in a
fight." The State objected, arguing Saunders only did so after defendant had
forcibly taken Saunders' bike and dragged it away. The prosecutor argued a
victim who engages with a thief to regain possession of his property has not
mutually consented to a fight.
Defense counsel countered that the man in the video who scuffled with
Saunders, who counsel claimed was not defendant, obviously never had any
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intent to steal Saunders' bike, which the man left on the platform. Counsel
contended the man only pulled the bike away to get Saunders away from the
bus, because his purpose "was to fight and Mr. Saunders agreed to that fight by
taking off his coat and putting up his hands."
The prosecutor argued that even allowing defendant's purpose was a
fight and not a theft, Saunders was stabbed, and there could be no mutual
consent to being lured into a fist fight with someone armed with a concealed
deadly weapon. The judge denied the charge, finding the evidence did not
support it, and that including it along with the simple assault, bodily injury and
simple assault, deadly weapon charges would unnecessarily complicate the
charge and confuse the jury.
The law is clear that in order "[t]o give full force to the reasonable doubt
standard," as well as to preserve a defendant's right "to have the jury consider
all defenses supported by the evidence, . . . a defendant is entitled to a charge
on all lesser included offenses supported by the evidence," State v. Short, 131
N.J. 47, 53 (1993), regardless of whether the included defense is indictable,
N.J.S.A. 2C:1-8(d). When a defendant requests a lesser included offense
charge, the trial judge must thoroughly examine the record to determine
whether there is a rational basis in the evidence for finding the defendant was
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not guilty of the greater offense but was guilty of the lesser included one.
State v. Sloane, 111 N.J. 293, 299 (1988). The Court in Sloane likened a
defendant's entitlement to a lesser offense charge to the right to have the jury
instructed on any available defense supported by the evidence. Id. at 303.
Although defendant is correct that there was some evidence in the record
regarding Saunders' willingness to engage in fisticuffs with defendant, we
cannot find the evidence supported the defense of mutual combat. " It is a
well-settled principle of law that an aggressor will not be allowed, under the
law, to mitigate his crime on the theory of mutual combat when it appears that
his victim had no desire to fight, and intended to fight only to the extent that a
defense of his person against an unprovoked assault was necessary." State v.
Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995) (quoting Langford v.
State, 93 S.E.2d 1, 3 (1956)). "[M]utual combat requires a mutual intent to
fight, as distinguished from an encounter where one is attacking and the other
is merely defending himself." Ibid. (quoting 2 Charles E. Torcia, Wharton's
Criminal Law § 161 at 361 (15th ed. 1994)).
The evidence was unequivocal that defendant was the aggressor in the
encounter captured on video, lunging at Saunders and forcibly taking the bike
he needed to get to work. The video also makes plain Saunders only took off
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and laid aside his work coat as he followed defendant dragging the bike, just
before attempting to unsuccessfully yank it back from him. Although
Saunders directed a couple of punches at defendant, he did so only after he
was attacked by defendant.
In addition, there was nothing suggesting defendant suffered any injury,
whereas Saunders clearly suffered seriously bleeding wounds to his arm and
back. In the context of discussing whether mutual combat can give rise to a
passion/provocation defense in a murder prosecution, the Court in Crisantos
noted the common law qualifier that "the contest must have been waged on
equal terms and no unfair advantage taken of the deceased." 102 N.J. at 274(quoting 1 O. Warren & B. Bilas, Warren on Homicide § 110 at 525-26
(1938)). "[I]f a person, under color of fighting on equal terms, kills the other
with a deadly weapon which he used from the beginning or concealed on his
person from the beginning, the homicide constitutes murder." Id. at 275
(quoting Torcia, § 110 at 254). Although defense counsel argued in closing
that Saunders' wounds could have been caused by the quick scuffle next to the
open cargo door on the bus, the video establishes Saunders had already closed
the door before any scuffle began.
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Viewing all these facts in a light most favorable to defendant, we are
satisfied the trial court did not err in failing to instruct the jury on mutual
combat as a lesser included offense of aggravated assault. There is no view of
the evidence that would provide a jury a rational basis to acquit defendant of
second-degree aggravated assault and convict him of petty disorderly person
simple assault based on mutual combat. See State v. Savage, 172 N.J. 374,
398 (2002).
We also reject defendant's claim his sentence is excessive. Defendant
concedes he was extended-term eligible as a persistent offender. N.J.S.A.
2C:44-3(a). He contends the trial court failed to consider the age of his prior
convictions and that none involved violent offenses in determining an
extended term was necessary. And although he presented several mitigating
factors, the court rejected all of them. On appeal, he contends both mitigating
factor one, that defendant's conduct did not cause serious harm, N.J.S.A.
2C:44-1(b)(1), and eleven, that the imprisonment of the defendant would entail
excessive hardship to his family, N.J.S.A. 2C:44-1(b)(11), should have been
found. He contends the undue weight the trial court accorded the aggravating
factors it found and its failure to find mitigating factors one and eleven
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resulted in his manifestly excessive sixteen-year NERA term, which should be
vacated and the matter remanded for resentencing.
After reviewing defendant's extensive criminal history, consisting of
eight prior indictable convictions, including assault and resisting arrest in
1996, third-degree possession with intent to distribute a controlled dangerous
substance in 1998, third-degree hindering his own prosecution and a fourth-
degree certain persons offense in 2002, third-degree possession of CDS,
fourth-degree hindering prosecution, a fourth-degree certain persons offense in
2008, and third-degree possession of CDS in 2012, as well as four disorderly
persons offenses, three municipal ordinance violations, a pending bail jumping
charge, and four juvenile adjudications, the judge found aggravating factors
three, risk of recidivism, N.J.S.A. 2C:44-1(a)(3); six, the extent of the
defendant's prior record and the seriousness of the crimes of which he has been
convicted, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter, N.J.S.A. 2C:44-
1(a)(9), and no mitigating factors.
As to the mitigating factors defendant presses on appeal, the judge
rejected mitigating factor one because the jury convicted defendant of
purposefully or knowingly causing Saunders serious bodily injury and
mitigating factor eleven because, although defendant had at that time seven
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children between the ages of eleven months and twenty-five years, the
hardship facing his family, whom the pre-sentence report reflected lived in
another state at an unknown address, was not different from others in the same
circumstances.
The judge agreed defendant satisfied the statutory prerequisites for
sentencing as a persistent offender and based on her assessment of the
aggravating and mitigating factors, rejected the State's request for an aggregate
eighteen-year NERA term for aggravated assault, and instead determined to
sentence defendant to sixteen years in State prison, subject to NERA, and a
concurrent five-year term on the theft conviction. His subsequent three-year
sentence for bail jumping was also run concurrently.
Having considered defendant's arguments, we find no basis to reverse his
sentence. Defendant's sixteen-year extended-term sentence is concededly
within the range of the five-year minimum of the ordinary-term range for a
second-degree offense, N.J.S.A. 2C:43-6(a)(2), and the twenty-year maximum
of the extended-term range, N.J.S.A. 2C:43-7(a)(3). The aggravating factors
the court found have ample support in the record and there was no error in the
court relying on defendant's extensive criminal record in support of both the
aggravating factors as well as its extended term sentence. See State v. Tillery,
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238 N.J. 293, 327-28 (2019). The court did not err in rejecting mitigating
factors one and eleven as they lacked support in the record. Accordingly,
because the trial court's findings and balancing of the aggravating and
mitigating factors are supported by adequate evidence in the record, and the
sentence imposed is neither inconsistent with the sentencing provisions of the
Code of Criminal Justice nor shocking to the judicial conscience, we affirm.
See State v. Fuentes, 217 N.J. 57, 70-71 (2014).
Affirmed.
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