Statev.Smith

Whether the trial court committed plain error by charging the jury that defendant could be found guilty of attempted murder upon proof that he intended to kill the officer by biting him, regardless of whether it was medically impossible for the bite to transmit HIV?³⁰

Under N.J.S.A. 2C:5-1(a)(2), a person is guilty of attempt when causing a particular result is an element of the crime if he does or omits to do anything with the purpose of causing such result without further conduct on his part.³¹ This subsection adopts a subjective standard focused on the defendant's purpose and rejects impossibility as a defense.³²

No. The trial court correctly instructed the jury under N.J.S.A. 2C:5-1(a)(2) that impossibility is not a defense.³³ The statute punishes purposeful conduct regardless of whether the result can be accomplished.³⁴ The facts establish that Smith repeatedly threatened to bite officers and give them AIDS so they would die.³⁵

The jury could reasonably find from his statements and conduct that he subjectively believed the bite could cause death.³⁶ The charge properly focused on Smith's purpose rather than objective medical possibility.³⁷ This approach is consistent with the statute's rejection of the impossibility defense for result-type offenses.³⁸

The charge did not constitute plain error.³⁹

Whether the trial court committed plain error by failing to charge the jury to assess defendant's criminal purpose by considering the unsuitability of a bite as a means of spreading HIV?⁴⁰

Under N.J.S.A. 2C:5-1(a)(2), the objective likelihood that the chosen means will succeed is irrelevant to liability.⁴¹ It is sufficient that the defendant believed his conduct would achieve the criminal result.⁴²

No. The trial court did not err by refusing to instruct the jury to consider the unsuitability of a bite.⁴³ The statute focuses exclusively on the defendant's subjective purpose.⁴⁴ The facts show Smith made repeated threats to bite and transmit HIV.⁴⁵ Even his own expert conceded a remote possibility of transmission.⁴⁶

The jury could therefore find that Smith's belief was not absurd in the manner of a voodoo curse.⁴⁷ The objective probability of success has no bearing on criminal liability under subsection (a)(2).⁴⁸

The failure to give the requested charge was not plain error.⁴⁹

Whether the guilty verdicts on attempted murder and aggravated assault were against the weight of the evidence?⁵⁰

A verdict may be set aside only if it clearly appears that there was a miscarriage of justice under the law.⁵¹ The reviewing court must determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.⁵²

No. The verdicts were supported by ample evidence that Smith subjectively believed his bite could transmit HIV and intended to kill Waddington.⁵³ The facts include Smith's repeated threats to bite and give AIDS.⁵⁴ His statements during the struggle such as I'm going to give you AIDS support this finding.⁵⁵ The visible puncture wounds on Waddington's hand also support it.

Although Smith and Niblack testified that Smith believed transmission by bite was impossible, the jury was free to reject that testimony as incredible in light of Smith's conduct and threats over several months.⁵⁶

The verdicts were not against the weight of the evidence.⁵⁷

Whether the trial court erroneously charged the jury in such a way as to allow it to apply a subjective test to the terroristic-threats offense?⁵⁸

Under N.J.S.A. 2C:12-3(b), the threat must be made under circumstances that reasonably cause the victim to believe the threat is likely to be carried out.⁵⁹ This requires an objective test measuring whether the words or conduct would reasonably convey the menace of death to the ordinary hearer.⁶⁰

No. The trial court's charge adequately conveyed the objective element.⁶¹ The judge instructed the jury that the threat must be made under circumstances that reasonably caused the victims to believe it was likely to be carried out.⁶² The judge also instructed that the words must reasonably convey the fear of death.⁶³ The facts show Smith made explicit threats to bite and transmit AIDS while struggling with the officers.⁶⁴

The jury could find that such threats would reasonably cause fear of death even if the medical risk was remote.⁶⁵ The omission of the precise phrase ordinary hearer did not render the charge erroneous.⁶⁶

The charge on terroristic threats was not erroneous.⁶⁷

Whether the verdict on terroristic threats was against the weight of the evidence?⁶⁸

Under N.J.S.A. 2C:12-3(b), the State must prove that the threat was made under circumstances reasonably causing the victim to believe the threat is likely to be carried out.⁶⁹ The test is the reasonableness of the victim's fear, not the objective medical likelihood of the threatened harm.⁷⁰

No. The verdict was supported by evidence that Smith's threats to bite and transmit AIDS would reasonably cause fear of death.⁷¹ The facts establish that Smith repeatedly threatened to give the officers AIDS during a violent struggle.⁷² The bite caused visible puncture wounds. Even the defense expert would test a bite victim for HIV.⁷³

Given the medical testimony that transmission was at least possible on rare occasions, the jury could rationally conclude that the threats reasonably conveyed a fear of death.⁷⁴

The verdict on terroristic threats was not against the weight of the evidence.⁷⁵

Whether the trial court erred in admitting the opinion testimony of the State's medical expert regarding the possibility of HIV transmission via a bite?⁷⁶

Expert testimony is admissible if it will assist the trier of fact to understand the evidence or determine a fact in issue.⁷⁷ It must be based on facts or data of a type reasonably relied upon by experts in the field.⁷⁸ When the issue is the defendant's state of mind rather than actual causation, the opinion need not be expressed in terms of reasonable medical certainty of causation.⁷⁹

No. The trial court properly admitted Dr. Porwancher's testimony because it assisted the jury in evaluating Smith's subjective belief about the danger of his bite.⁸⁰ The facts show the testimony was offered to rebut Smith's claim that he knew transmission by bite was impossible.⁸¹ Dr. Porwancher based his opinion on case reports in Lancet and a Soviet study.⁸² These sources are reasonably relied upon by infectious disease specialists.⁸³

The opinion was relevant to Smith's mental state even though impossibility was not a defense.⁸⁴

Admission of the expert testimony was not error.⁸⁵

Whether the sentencing judge erred in refusing to apply the mitigation-of-sentence provision of N.J.S.A. 2C:5-4(b)(1)?⁸⁶

Under N.J.S.A. 2C:5-4(b)(1), the court may downgrade an attempt conviction if neither the conduct nor the defendant presents a public danger warranting the normal grading because the attempt is so inherently unlikely to result or culminate in the commission of a crime.⁸⁷ The statute refers to a crime, not the specific crime charged.⁸⁸

No. The sentencing judge properly refused mitigation because Smith's conduct was likely to result in a crime.⁸⁹ The facts establish that Smith bit Waddington, causing puncture wounds.⁹⁰ He repeatedly threatened to transmit AIDS during a violent struggle.⁹¹ Even if HIV transmission was unlikely, the bite and threats constituted aggravated assault and terroristic threats.⁹² The statute permits downgrade only when the attempt is inherently unlikely to result in any crime, which was not the case here.⁹³

The refusal to apply the mitigation provision was not error.⁹⁴