April 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHIE L. BURTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey Law Division, Somerset County, Indictment No. 05-03-0184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Cuff and Lihotz.
Defendant Richie Burton appeals from his conviction, following a jury trial, for one count of attempted shoplifting, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20:11(b)(4), and two counts of shoplifting, N.J.S.A. 2C:20-11(b)(4). Because the jury found the value of the stolen items exceeded $500, the crimes were of the third-degree. At sentencing, the trial judge declined to impose an extended term and sentenced defendant to three concurrent five-year terms of incarceration. All applicable fines and assessments were imposed and defendant was ordered to pay restitution of $1,215.
On appeal, defendant presents a single argument:
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
We find no flaw in the trial court's charge to the jury, and affirm.
On February 13, 2005, Raymond Vitellaro, a Watchung Wal-Mart Loss Prevention Associate, found the glass display case containing MP3 players unlocked. Vitellaro determined the lock that secured the case had been popped out. He also noticed empty spaces in the display case.
Vitellaro returned to his office to review the store's security videotape. The Loss Prevention Office monitors and controls the 300 store cameras. While watching the day's surveillance recordings, Vitellaro observed a customer enter the electronics department, approach the glass display case, and remove MP3 players from the case. Vitellaro described the customer as a "[b]lack male, about 6-4, heavy set . . . wearing a black shirt [and] blue jeans."
The store's security camera system had a zoom feature that allowed Vitellaro to look closely and identify the brand of the items taken. He testified the customer took two Zen models each valued at $249, and four other MP3 players valued at $179 per unit.
Each of the MP3 players taken had a security strip, which would sound an alarm upon exiting the store, unless deactivated. Generally, deactivation occurs at purchase when a sales associate passes the secured item over a gray deactivation pad located at each cash register. The surveillance video showed the customer in question pass a lamp box over a deactivation pad at an unattended register in the sporting goods department. The lamp did not have a security strip because it cost only $20. Vitellaro explained that the use of the deactivation pad would deactivate the security strip on any items located inside the lamp box.
On February 19, 2005, Vitellaro was monitoring the store's security cameras when he saw a man matching the description of the customer whom he believed had shoplifted the MP3 players. Controlling the cameras, Vitellaro "followed" the customer as he entered the store, took a shopping cart and proceeded toward the men's department. Vitellaro watched the customer place shirts on the side of his cart then head to the electronics department where he paused at the digital cameras and camcorders. Vitellaro testified the customer next transferred the shirts and his jacket to a shopping cart that contained a boxed computer and walked off with that shopping cart. The customer stopped at the toy department where he picked up an empty box for a toy table and chairs that was on display. The customer placed the toy box in his shopping cart on top of the computer box. He is next seen on the security tape with only the toy box in his shopping cart. The customer then moved to the housewares department, used tape to seal the toy box, and then entered a check-out line to pay only $31.77 for the toy table and chairs.
Vitellaro, along with other store personnel, stopped the customer as he exited the store. The customer was identified as defendant. Vitellaro opened the toy box and found a computer inside valued at $1,516. Store personnel escorted defendant to the security office and Vitellaro called the Watchung police. When Edward Neas, another security associate, viewed the day's security film, he saw that defendant, while alone in the security office, reached towards files on a desk. Neas found a set of keys in the files. Vitellaro determined that one of the keys opened the lock for the MP3 player case.
Neas also testified regarding an incident that occurred on February 7, 2005. Neas was operating the store security system when a sales associate presented a coffee pot box he found in the store, which contained new MP3 players. The MP3 players each cost $248. Researching the security films, Neas saw "a tall, heavy-set African-American man" talking to an assistant store manager in the electronics department. When the assistant manager left the department, the man leaned over the MP3 player case, reached into the case, and moved his hand four times towards his shopping cart. Neas viewed the videos from February 13 and 19 and stated the man he saw on the February 7 videotape was the same person seen on those tapes.
In his charge to the jury, the judge explained:
There are three offenses charged in this indictment. They are separate offenses by separate counts in the indictment. The defendant is entitled to have his guilt or innocence separately considered on each count by the evidence which is relevant and material to that particular charge based on the law as I give it to you.
The trial judge then recited the elements of attempted shoplifting and shoplifting as provided by the Model Jury Charges. See Model Jury Charge (Criminal), "Shoplifting" (2005). During deliberations, the jury submitted two questions to the court. The first was: "Can we use evidence from counts 2 and 3 in order to deal with count one?" The judge simply told the jurors, "no." The second question was: "What clips belong to count laptop?" The court determined the jury was looking for a guide for the numerical designations on the CD played as it related to the given dates discussed at trial.
Our review of the evidence, the charge, and the pertinent law convinces us to reject defendant's argument that plain error is presented by the trial judge's failure to identify those facts supporting each charged offense. We disagree that the facts of this case were complex or that the jury could not separate what facts were applicable to what charge. The State presented distinct events occurring on three discrete dates. The charge instructed the jury on the elements of the offenses and told the jury to separately consider each count by the evidence presented for each count. We presume that jurors follow instructions. State v. Short, 131 N.J. 47, 66 (1993); State v. Manley, 54 N.J. 259, 270 (1969),
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