On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
On February 11, 2003, Chenalle Lee was walking home when Wayne Chapland ran up behind her and grabbed her pocketbook. As the two struggled for the purse, the strap broke and Lee fell to the sidewalk, still holding the purse. Lee testified that when she fell, Chapland whipped out a knife and said, "Give me your purse, b*tch. B*tch give me your purse before I cut you." Chapland was arrested several weeks later. He gave a statement in which he admitted to taking Lee'e purse but denied having a weapon. As he described the incident in his statement, he just reached behind himself and said, "Give me the pocketbook," at which point she threw the pocketbook to him.
The police officer who took Chapland's statement said that he asked Chapland if he did anything to make it look as if he had a weapon and that Chapland said, "Yes." On cross-examination, Chapland admitted to that dialogue but added, "The only thing I did was put my hand behind my back."
The trial court submitted to the jury both versions of what allegedly took place, namely that Chapland was armed with a knife and, if the jury found that defendant did not actually possess a knife, the alternative that he simulated the possession of a knife. As regards the simulation of a weapon, the jury was charged that it was they who must determine whether the State had proven beyond a reasonable doubt that the combination of words and conduct or words and gestures created a reasonable belief in the victim to believe that Chapland possessed some tangible object that a reasonable person would believe to be a deadly weapon capable of causing death or serious bodily injury. The jury also was charged that if they found that the State had proven robbery but has not proven that Chapland engaged in conduct or gestures that would lead a reasonable person to believe that Chapland possessed some tangible object that a reasonable person would believe to be a deadly weapon, then they had to find Chapland guilty of second-degree robbery. The jury convicted Chapland of first-degree robbery and the court imposed a sentence of ten years imprisonment with an 85% parole disqualifier.
The Appellate Division reversed the conviction because it found the jury instruction on simulated possession of a weapon failed to convey that the jury was required to acquit Chapland if it accepted his version of what took place.
This Court granted the State's petition for certification.
HELD: In a first-degree robbery case involving the simulated possession of a weapon, the jury may consider the combined effect of a defendant's words and conduct or gestures when determining whetherthecombination would suffice to induce a victim's reasonable belief that the defendant possessed a deadly weapon when perpetrating a robbery. It is not necessary that the victim actually see the item that is supposed to be the simulated weapon. In this case, there was a sufficient record to support a first-degree robbery conviction based on the simulated possession of a weapon.
1. Robbery is elevated to a crime of the first degree when the defendant is armed with or uses or threatens the immediate use of a deadly weapon. In 1981, the Legislature amended the definition of a deadly weapon to add simulation of deadly weapon, enabling a defendant's conviction of first-degree armed robbery to be based on either possession of an actual deadly weapon or simulation of the possession of such a weapon. (p. 12)
2. Four key appellate decisions in this State have examined records in which a charge of armed robbery was predicated on the simulated possession of a weapon. In 1987, in State v. Hutson, this Court held that the defendant could not be found guilty of first-degree armed robbery because the State did not present any evidence that the newspaper that the robbery victim observed was fashioned or held in such a manner that would create a reasonable impression that it was a weapon or concealed a weapon. (pp. 13-14)
3. In State v. LaFrance, the Appellate Division held, and this Court affirmed, that the defendant's use of his hand to simulate a gun and the reasonable sensory impression thereby created in the victims satisfied the statutory requirements for a first-degree robbery charge. (p. 15)
4. In State v. Harris, the Appellate Division panel found the armed robbery charge to be inadequate because it did not properly inform the jury about the proof requirements for armed robbery when based on the simulated possession of a weapon. In the wake of the Harris decision, the model jury charge on armed robbery was revised to address simulated weapon situations. The model jury charge contains a footnote that identifies the question that has arisen in this appeal: It is unclear whether, in addition to words and conduct or gestures, defendant actually has to possess a tangible object, and whether an object is necessary at all, or whether the use of a hand by placing it in pocket or under or on a coat or behind a back is sufficient to constitute some tangible object. (pp. 19-20)
5. Because Chapland did not object to the court's instruction when it was delivered, a plain instruction standard applies. As applied to a jury instruction, plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantive rights of the defendant and sufficiently grievous to convince the reviewing court that of itself the error possessed a clear capacity to bring about an unjust result. (pp. 20-21)
6. Case law has not required that defendant actually show a victim some object that the victim reasonably perceives to be a weapon. State v. Huff reinforces the case law opinions conveying that the victim need not see a tangible concealed object, but rather that the combination of words and a defendant's gesture or action can establish the reasonable impression that the defendant possesses a deadly weapon. Although it may be argued that those opinions have interpreted the statute more expansively than the Legislature originally intended, the Legislature is presumed to be aware of the judicial construction placed on an enactment. (pp. 21-24)
7. In our view, the facts convey the overall impression of simulating possession of a deadly weapon. The timing of Chapman's quick movement as if to grab something concealed behind his body, for use directed against the victim with whom he had been struggling, coupled with the threatening demand, with epithet, that she release her purse, creates an overall impression of a weapon during this robbery in progress. The charge, in its totality, provided the jury with a fair statement of the law, molded by proofs. (pp. 24-25)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion.
The opinion of the court was delivered by: Justice LaVECCHIA
A jury convicted defendant Wayne Chapland of first-degree robbery for a purse-snatching incident in which he simulated possession of a deadly weapon. The Appellate Division reversed the conviction because it found that the jury instruction on simulated possession of a weapon failed to convey that the jury was required to acquit defendant if it accepted his version of what took place. Defendant conceded that he snatched the purse but claimed that he neither had a weapon nor threatened the victim with anything that simulated a weapon.
According to the panel, in a simulated-possession case the threat to the victim must be linked to some "object" that the defendant either displays or uses in a way that suggests a deadly weapon to the victim. The court held that because defendant contended that his threatening words were accompanied only by his moving his hand behind his back as if to reach for an undisclosed object, the link to a deadly weapon was not made. No object simulating or suggesting a weapon was displayed to the victim and, thus, the jury should have been told that it must acquit defendant if it believed him.
We disagree and reverse. The jury charge adequately conveyed to the jury that it could have acquitted defendant.
Moreover, there was sufficient evidence to sustain the jury's verdict of guilt. In a simulated-possession case, the jury may consider the combined effect of a defendant's words and conduct or gestures when determining whether the combination would suffice to induce a victim's reasonable belief that the defendant possessed a deadly weapon when perpetrating a robbery. It is not necessary that the victim actually see some tangible item that is supposed to be the simulated weapon. In this case, there was a sufficient record to support a first-degree robbery conviction based on the simulated possession of a weapon.
On February 11, 2003, at approximately two o'clock in the morning, Chenalle Lee was walking home to her mother's house from a local pub. When she was about a block and a half from her destination, defendant "ran up behind [her] and started pulling on [her] pocketbook." As the two struggled over the purse, defendant demanded that Lee "[g]ive [him] her purse." As a result of that struggle, the shoulder strap on the purse broke and Lee fell to the sidewalk. Nonetheless, as she fell she continued to hold on to her purse.
What occurred next is a matter of dispute. Lee testified that, when she fell, defendant "dr[ew] back a little bit and whipped out a knife, like a pocket knife, [and] said 'Give me your purse, b*tch.'" Lee stated that defendant "wasn't up on [her] but he like pointed the knife out so [she] recognized he had a knife." Although she said that she could not see the handle of the knife, she heard the knife "click" open and saw its blade. Lee testified that she begged defendant, "can I get my license -- just can I get my license out of my purse." He, however, replied "B*tch give me your purse before I cut you." Accordingly, she "tossed the purse to him," and he ran away.
Defendant was apprehended several weeks later, after Lee identified him from a photo array. In a voluntary recorded statement defendant admitted to taking Lee's purse, but he denied having a weapon. Rather, as he described the incident, I just reached behind me . . . and I said give me the pocketbook and she threw it at me and said is that what you want and . . . when she threw it at me I grabbed you know and caught it and took off running.
The State charged defendant with first-degree armed robbery, contrary to N.J.S.A. 2C:15-1a. At trial, the following colloquy took place between Officer Hebbon, who interrogated defendant and recorded his voluntary statement, and the prosecutor:
Q: Did he indicate whether he had a weapon?
A: He -- he said he didn't have a weapon.
Q: Did you indicate -- did you ask him any questions, whether he tried to make it look to her like he had a weapon?
A: I asked him . . . if he had a weapon, he said no, I then asked if he -- if he did anything to -- to make it look as if he had a weapon, and he said -- he said yes, he said.
Q: What did he say he did?
A: He said he -- he put his hand behind him as if he had a weapon. And -- and ...