January 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SADIQ ARNOLD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0424.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Cuff and Lihotz.
Defendant Sadiq Arnold appeals from his conviction for second-degree robbery, N.J.S.A. 2C:15-1, and from the ordered ten-year sentence, accompanied by a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility period. On appeal defendant argues:
THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO CHARGE THEFT FROM THE PERSON AS A LESSER-INCLUDED OFFENSE OF ROBBERY. (U.S. CONST. AMENDS. V, VI AND XIV; NEW JERSEY CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Partially Raised Below).
THE DEFENDANT'S MAXIMUM BASE SENTENCE OF TEN YEARS WITH 85% OF SUCH TERM TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
At 6 p.m., on August 24, 2005, Elizabeth Ogunbanjo waited for a bus at the intersection of Chestnut and Broad Streets in Newark. Defendant approached Ogunbanjo seeking directions. She ignored him. Defendant then grabbed Ogunbanjo's neck "trying to take off [her] chain." The chain broke and fell into her shirt. Following a struggle between the two, defendant grabbed Ogunbanjo's earring and fled. A patrolman was alerted and defendant was apprehended. Ogunbanjo suffered scratches to her neck and chest. Her cousin rendered first aid; her injuries did not require further medical attention.
During the charge conference, the defense sought a jury charge on the lesser included offense of theft. A discussion regarding the correct charge ensued, including a statement by the prosecutor that the charge would be "theft from a person." The parties agreed the State need not prove the value of the property taken for a third-degree "theft from the person of the victim" conviction. N.J.S.A. 2C:20-2(b). Thereafter, each attorney advised the court that the charge, as proposed, was acceptable without addition.
In charging the jury, the trial judge followed the model charge for second-degree robbery. See Model Jury Charge (Criminal), "Robbery in the Second Degree" (2005). Consistent with the model charge, the judge instructed the jury that the State had the burden to prove beyond a reasonable doubt each element of the substantive offense of robbery, including the elements of force and theft. A reference at footnote eight of the charge states: "For theft from the person where the amount of force does not elevate the charge to robbery, see Model Jury Charge for N.J.S.A. 2C:20-3a (theft of moveable property)." Ibid.
The Model Jury Charge addressing the gradation of theft offenses lists additional provisions when the theft amount determines the grading of the offense. See Model Jury Charge (Criminal), "Gradation Of Theft Offenses Dependent On The Amount Of Money Or Value Of Property Involved" (2003). The model charge ends with a note providing additional language to use "when grading is dependent on the amount of money or value of property involved." The note then lists the statutory provisions of N.J.S.A. 2C:20-2(b).
The trial judge also told the jury to consider the lesser included offense of theft "along with that for which defendant is indicted. However, you're not to render a [verdict] on a lesser included offense, or answer the question on the verdict sheet, unless you find the State has failed to meet its burden, with regard to the offense in the indictment." Thereafter, the trial judge recited the model charge for theft of movable property, see Model Jury Charge (Criminal), "Theft of Moveable Property" (2003), referring to the previously given instructions regarding the definition of "knowingly" and "purposely." No mention was made of the value of the property and the jury was not requested to fix value on its verdict sheet. A copy of the jury instructions was marked as C-1 and provided to the jury in the deliberation room.
Defendant challenges his conviction arguing that the omission of specific language in the theft charge that the theft was "from the person" constitutes plain error. Defendant maintains that given a proper charge, "the jury could have easily found that  defendant was only guilty of theft from the person, because he only used that degree of force necessary to remove the property from the possession of the victim."
"When evaluating the propriety of a jury charge, an appellate court 'does not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole.'" State v. Concepcion, 111 N.J. 373, 376 (1988) (quoting State v. Freeman, 64 N.J. 66, 69 (1973)). "'[The charge must provide] a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Koskovich, 168 N.J. 448, 507 (2001) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). If the charge as a whole meets that standard, the verdict must be upheld. State v. Ramseur, 106 N.J. 123, 280 (1987).
Erroneous jury instructions on material issues are usually presumed to be reversible error, State v. Crisantos, 102 N.J. 265, 273 (1986), as "[e]rroneous instructions are poor candidates for rehabilitation as harmless [error]." State v. Afanador, 151 N.J. 41, 54 (1997). Our review of the record suggests there was a consensus between the prosecutor and defense counsel that value was not an issue required to be presented to the jury and that the proposed charge was appropriate. After the charge was issued, counsel made no objection. Thus, our review is guided by the plain error standard. State v. Torres, 183 N.J. 554, 564 (2005).
In the context of an unchallenged jury charge, "plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997); R. 2:10-2. Any possibility of an unjust result will not suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, any alleged error must be evaluated in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
We next examine the statutes defining the criminal offenses at issue. A theft is elevated to second-degree robbery when in the course of committing a theft, [a person]:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft . . . .
A person is guilty of theft of movable property "if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a). The grading of theft crimes is discussed at N.J.S.A. 2C:20-2(b), which provides, in pertinent part, "(2)
Theft constitutes a crime of the third degree if: (a) The amount involved exceeds $500.00 but is less than $75,000.00; . . . (d) It is from the person of the victim[.]"
The Supreme Court has expressly recognized that a factor included in a grading statute may constitute an element of an offense that the State must prove to warrant a conviction. See State v. Hodde, 181 N.J. 375, 380 (2004) (State must prove property is stolen when seeking a conviction for the crime of receiving stolen property). In Hodde, the Court listed other crimes where the grading provisions were found to include necessary elements of the offense charged. Ibid.; see State v. Federico, 103 N.J. 169, 173-77 (1986) (holding that release of victim unharmed was element of second-degree kidnapping, N.J.S.A. 2C:13-1); State v. Damiano, 322 N.J. Super. 22, 51-52 (App. Div. 1999) (holding that under N.J.S.A. 2C:20-2b(4), the State must prove multiple thefts were part of "a single scheme or course of conduct" when seeking to aggregate the multiple thefts to satisfy the grading factor), certif. denied, 163 N.J. 396 (2000); State v. Smith, 279 N.J. Super. 131, 139-42 (App. Div. 1995) (grading factors constitute elements of kidnapping offense).
A review of these decisions reveals the logical conclusion that when a grading statute factor actually impacts the substantive nature of the degree of offense, it must be proven by the State. For example, if the State sought a conviction for second-degree theft, it would be required to establish one factor enumerated in N.J.S.A. 2C:20-2(b)(1)(a) to (e), such as, the amount taken exceeded $75,000 or the property was taken by extortion.
During the charge conference, counsel's discussion included mention of the "theft from the person of the victim" language. Additionally, discussed was the fact that the State presented no evidence establishing the value of the victim's property. We presume, the prosecutor's mention of the phrase "theft from a person" referenced a desire for consideration as a third-degree theft conviction. Otherwise, the operative provision N.J.S.A. 2C:20-2(b)(4) grades a theft of property valued at less than $200 as a disorderly person's offense.
Defendant's contention is the jury charge is flawed because it omitted the specific statement that the State must prove defendant took the earring "from the person of the victim" when discussing the lesser included theft offense. Defendant's logic is as follows: because robbery involves a theft with force directed against the victim; and because theft was defined in this matter as the "unlawful tak[ing] or exercis[ing] control over moveable property of another"; then, the judge's failure to mention that in the theft, the property was taken from the person might confuse the jury. Since the earring was taken from the victim's ear, and the only offense involving a taking from a person was a robbery, then defendant must have committed a robbery. We disagree with this syllogism.
It is undisputed that the differentiation between robbery and theft is the infliction of bodily harm and the use of force. State v. Thomas, 166 N.J. 560, 572 (2001); State v. Harris, 141 N.J. 525, 552 (1995); State v. Sein, 124 N.J. 209, 217 (1991). "The theft statute thus includes purse-snatchings from the grasp of an owner, while the robbery statute includes purse-snatchings that involve some degree of force to wrest the object from the victim. The only way to reconcile the two statutes is to hold that robbery requires more force than that necessary merely to snatch the object." Sein, supra, 124 N.J. at 219.
The requirement for a finding that force was used in the theft to convict defendant of robbery was fully and properly reflected in the jury charge, wherein the trial judge explained
[f]orce means an amount of physical power or strength used against the victim, and not simply against the victim's property. The force need not entail pain or bodily harm, and need not leave any mark. Nevertheless, the force must be greater than that necessary and merely to snatch the object from the victim's grasp or the victim's person. And the force must be directed against the victim, not [merely] the victim's property. Should you find the State has failed to prove these essential elements of the crime of robbery beyond a reasonable doubt, you must return a verdict of not guilty . . . of robbery.
At trial, only the victim and the arresting officer testified. The victim related defendant's actions in grabbing her necklace, scratching her throat and chest, the struggle occurring thereafter, and the removal of her earring. All of these facts support the jury's finding that force was used in the attempted theft of the necklace and theft of the earring. Defendant did not challenge that force was used; instead, he advanced a defense based on misidentification. Distilling defendant's true claim, he now argues that the amount of force used to take the victim's property warranted a finding of theft, rather than robbery. See State v. Smalls, 310 N.J. Super. 285, 290 (App. Div. 1998) (holding that the defendants' convictions for second-degree robbery as a result of a pick pocketing was remanded for the entry of amended judgments of conviction for theft). The evidence before the jury supports a contrary finding.
As to the charge itself, the trial judge recited a charge for theft of movable property, an appropriate lesser included offense to robbery. State v. Jordan, 240 N.J. Super. 115, 119 (App. Div.), certif. denied, 122 N.J. 328 (1990). We do not view this matter as analogous to cases where the trial judge neglects to provide a charge on a lesser included offense. See State v. Powell 84 N.J. 305, 319 (1980) (trial court's omission of a charge of voluntary manslaughter as lesser included offense to charge of second degree murder was harmful error).
Here, the State could have insisted on a charge that the theft was from the person of another to assure that any theft resulted in a third-degree conviction. Although this language was not specifically enunciated in the model charges, those serve only as an aid to counsel and the court. We encourage trial courts to make appropriate adaptations of the language of the model charges as circumstances present. Concepcion, supra, 111 N.J. at 379. However, in this matter neither the defense nor the State offered any additions or objections.
We determine that sufficient evidence was before the jury to support the conclusion that defendant used force upon the victim and note that the jury was free to reject the State's proofs. However, based upon the verdict rendered, we conclude the jury appropriately followed the judge's instructions and made a finding that force was involved, satisfying the necessary elements of robbery.
Defendant also argues that the sentence imposed was excessive. After consideration of aggravating factors (3) (risk of reoffense), (6) (defendant's prior criminal record), and (9) (the need for deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and (9), and finding no mitigating factors, the trial court sentenced defendant to the maximum ten-year base term for a second-degree offense, and required defendant to serve eighty-five per cent of his term prior to parole consideration pursuant to NERA. Defendant argues that if proper consideration were given to the actual gravity of the offense and the mitigating factors he believes were present but ignored, then imposition of a five-year minimum term, or at least a term not exceeding the midrange of seven or eight years was warranted.
During sentencing, the court noted defendant was "a recidivist," as this was his seventh indictable offense, with a long "history of criminal activity." Further, the trial judge concluded that none of the facts presented in defendant's arguments on mitigating factors "[rose] to the level intended by the [L]egislature in promulgating those mitigating factors."
"The broad discretion reposed in judges has allowed them to 'impose sentence[s] within statutory limits in the individual case.'" State v. Natale, 184 N.J. 458, 472 (2005) (quoting Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 2358, 147 L.Ed. 2d 435, 449 (2000). We determine that the judge's findings are supported by the evidence and he followed the applicable sentencing guidelines. Natale, supra, 184 N.J. at 489. We are not free to substitute our judgment for that of the trial court and are "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).
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