SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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 t he Superior Court of New Jersey, Law Division, Warren County, Indictment No. 14

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- 0 366. George T. Daggett argued the cause for appellant

. Kelly A

. Shelton, Assistant Prosecutor, argued the cause f or respondent (Richard T. Burke, Warren County Prosecutor, attorney; Kelly A

. Shelton, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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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 person s offense s . Based on the same core of operative facts , a Warren County grand jury ind icted 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 m ore 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 person s offense of hindering one's own apprehension , and acquitted defendant of the disorderly person s offense of obstructing the administration of law

. 1 On December 1 4 , 2 016, 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 person s offenses of hindering one's own apprehension and obstructing the administration of law

. State v. Denelsbeck , 225 N.J. 103 , 111

- 12 (2016).3 A

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In March 2014, d efendant w as involved in a min or car accident at a Quick Chek convenience store and gas oline station

. According to defendant, a car driven by a "young man" named Shane Nolan "tap p ed" her car, causing "a slight dent on hi s 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 te stified 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 a utomobile 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.

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- 16T4 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 in vestigation of the accident. Specifically, he needed "to confirm who . . . was driving that vehicle," and obtain the vehicle's registra tion 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.
D efendant acknowledged she received a telephon e call during this time period. She did not return the call because she did not reco gnize 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
Marc h 26, 2016 telephone call from defendant shows she correctly identified herself as "Renee Wagner." However, the State Police dispatcher mistakenly5 A

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re fers to her as "Britney Wager." This initial error is soon discovered and Trooper Wynn w as 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 ques tions 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 warn ed 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. D efendant refuted Trooper Wynn's accoun t 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 com e and find you." She claimed the c o nversation ended at this point. Trooper Wynn testified that a fter the tele phone conversation with defendant ended, he was able to locate a photograph of defendant and her home6 A

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address in the State motor vehicle records

. He and Trooper Abendschoen w ere dressed in their official State Police uniform s when they arrived at defendant's residence on the evening of March 26, 2014. A s 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 d oor of the house and spoke to a man who identified himself as defendant's former husband; this man told Troope r Wynn that defe ndant 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 the mselves as
State P oli ce. 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 f lashlight, 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 tha t her eyes were "bloodshot and watery" and her eyelids were "droopy." According to7 A

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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 def endant 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 in vestigate 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
uncoop erative 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 h e asked defendant to step outside8 A

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multiple times ; she refused and attempted several times to sla m 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 shoul der . . . to attempt to stop her f

rom getting inside that house." The Trooper eventually pull ed 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 handcuff ed and was significant ly bruised by Trooper Wynn's actions. Defendant testified that Trooper Wynn did not identify himself as a State
T rooper , but that she reco gnized Trooper Abendschoen as a State T rooper standing in the background

. Against this factual backdrop, defendant raises the following arguments on appeal.9 A

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- 16T4 POINT I
TH E TRIAL COURT ERRED IN NOT CHAR GING JUSTIFICATION AS AN ELEMENT OF A DISORDERLY PERSON S 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 argument s 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 c harging the jury with the lesser included offense of a disorderly person s resisting arrest. Thus, this10 A

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argument is also preclude d 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 ef fect such arrest [.] There is no evide nce 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 ad dressed 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 d efendant 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 remand ed for amendment of the Judgment o f Conviction in a manner consistent with this opinion. We do not retain jurisdiction.