December 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL M. ROBERTS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-07-0810.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa and Alvarez.
On January 5, 2006, a jury found defendant Michael M. Roberts guilty of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3, but acquitted him of third-degree burglary, N.J.S.A. 2C:18-2, the remaining count of the indictment. He was sentenced to eighteen months of imprisonment and assessed appropriate fines and penalties. We affirm defendant's conviction as well as his sentence.
Defendant presents the following arguments on appeal:
POINT I THE COURT REVERSIBLY ERRED IN DENYING ROBERTS' MOTION FOR A JUDGMENT OF ACQUITTAL ON HIS COUNT 2, THEFT CHARGE BECAUSE OF INSUFFICIENT EVIDENCE. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) PARA. 10)
POINT II THE COURT REVERSIBLY ERRED IN FAILING TO CHARGE THE JURY AS TO THE LEGAL DEFINITION OF "TOOK OR EXERCISED UNLAWFUL CONTROL" OVER MOVEABLE PROPERTY AS AN ELEMENT OF THE COUNT 2 CHARGE OF THEFT OF MOVEABLE PROPERTY AGAINST ROBERTS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT III THE COURT'S CHARGE REGARDING INFERRING GUILT FROM EXCLUSIVE POSSESSION OF THE STOLEN ITEMS WAS FATALLY FLAWED BECAUSE (1) THERE WAS INSUFFICIENT EVIDENCE ON THE RECORD THAT ROBERTS ACTUALLY HAD EXCLUSIVE POSSESSION OF THE STOLEN ITEMS AND (2) THE FORM OF THAT CHARGE VIOLATED ROBERTS' CONSTITUTIONAL RIGHTS TO REMAIN SILENT. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10) (PARTIALLY RAISED BELOW)
POINT IV THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO EXCLUDE TESTIMONY AS TO THE THREE INCH KNIFE FOUND ON ROBERTS' PERSON AT HIS ARREST BECAUSE THE STATE LOST THAT EVIDENCE AND THEREBY PRECLUDED AN INVESTIGATION OR EVALUATION BY THE DEFENSE AS TO WHETHER A KNIFE OF THAT SIZE, SHARPNESS AND CONSTRUCTION WAS CAPABLE OF CUTTING THROUGH A SCREEN OR OF PRYING OFF A SCREEN FROM THE BASEMENT WINDOW AT 619 BROOKSIDE PLACE. (U.S. CONST. AMENDS. VI AND IV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT V THE COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL'S REQUESTED CHARGE AS TO DESTROYED EVIDENCE AND IN GIVING ITS OWN INADEQUATE CHARGE. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT VI ROBERTS' CONVICTION AND SENTENCE SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN EXCEEDING THE SCOPE OF LEGITIMATE COMMENT ON SUMMATION AND ARGUING WELL BEYOND THE SCOPE OF THE UNDERLYING RECORD THAT ROBERTS STASHED THE UNRECOVERED ITEMS AND ON THE VALUE OF THE ITEMS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10)
POINT VII ROBERTS' SENTENCE SHOULD BE REVERSED AS ILLEGAL AND EXCESSIVE.
The evidence adduced at trial established that some time at the end of March or beginning of April 2005, defendant moved out of an apartment on the first floor of 617 Brookside Place in Plainfield. On April 12, 2005, defendant rang the doorbell to a first-floor unit at the apartment building next door, 615 Brookside Place. When his former neighbor, Tonda Phillips, answered, defendant asked her if he could leave two televisions in her residence and said that his wife would be stopping by with a truck. Phillips told defendant that he could leave the televisions in the hallway by her front door.
That same day, Arthur Simms, another former neighbor and the occupant of the second-floor apartment at 617 Brookside Place, encountered defendant on the building's front porch. He was standing next to a stereo, holding a duffle bag. Defendant explained to Simms that he had left a few things at his old apartment and had come back to retrieve them. Within minutes, while Simms was looking down from his kitchen, he observed defendant closing a basement window at 619 Brookside Place and replacing a screen on that window. Because Simms thought that the behavior was suspicious, he called the police.
When the police arrived, they detained defendant, whom they located standing in the driveway belonging to 619 Brookside Place. They found a nineteen-inch television in the rear of 617 Brookside Place, a duffle bag filled with change and papers on the porch of 617 Brookside Place, and a second television outside of Phillips' residence at 615 Brookside Place. Defendant was arrested, and a pocket knife was removed from his pocket.
Detective Eugene Goldston testified at trial that it appeared that someone had "tampered with" the basement window at 619 Brookside Place. He opined that a knife could have been used to pry the screen from the window. The State was unable to locate the knife found in defendant's pocket prior to trial.
When Balmore Martinez, an occupant of the basement apartment at 619 Brookside Place, returned home that afternoon, he found that the apartment had been "turned upside down" and that a window was open. He testified that two television sets and a duffle bag containing about $200 in change were missing. Martinez had purchased the televisions for approximately $150 each. His roommate's stereo and television were also missing from the apartment, but those items were never recovered. In closing argument, the prosecutor said that defendant "stashed" the stereo and coins from the duffle bag, and that Martinez's televisions were "worth" $150 each.
Defendant's first point is that his Rule 3:18-1 motion for acquittal before submission to a jury should have been granted as to the theft charge. He contends that the State failed to prove that he unlawfully took or exercised control over the allegedly stolen items. A trial judge, in considering a Rule 3:18-1 motion, must determine "'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). We employ the same standard in reviewing a trial court's decision to deny such a motion. State v. Quezada, 402 N.J. Super. 277, 285 (App. Div. 2008).
In this case, Phillips actually witnessed defendant having possession of the two stolen televisions when he asked her if she would store them for him. Additionally, Simms saw defendant actually holding the stolen duffle bag with a stereo on the ground next to him. The testimony of these witnesses clearly supported a reasonable inference that defendant exercised unlawful control over the two televisions and the duffle bag with the purpose of depriving the rightful owner of his property. See N.J.S.A. 2C:20-3. Therefore, we concur with the trial judge's conclusion that a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt. See Wilder, supra, 193 N.J. at 406.
Defendant also contends that the Rule 3:18-1 motion should have been granted because the State's proofs were insufficient as to the value of the stolen items. The judge's decision on this point was also correct as Martinez testified that there were $200 in coins in the duffle bag and that each of his television sets originally cost $150. The fair market value of the televisions might well have been less than their original purchase price. After giving the State the benefit of Martinez's testimony and considering that the jury examined photographs of the stolen items, however, we agree that a reasonable jury could have readily found the combined value of the stolen items to be more than $200. The Rule 3:18-1 motion was therefore properly denied.
Defendant also argues that the trial court's definition of the phrase "took or exercised unlawful control" was insufficient. Because this objection was not raised below, it is considered pursuant to the plain error standard of review. R. 2:10-2; State v. Nero, 195 N.J. 397, 407 (2008). As applied to jury instructions, the standard requires that defendant demonstrate "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)).
The judge gave the jury the standard Model Jury Charge on the crime of theft. See Model Jury Charges (Criminal), Theft of Movable Property (N.J.S.A. 2C:20-3(a)) (April 14, 2003). We have previously said that every word in a jury charge need not be defined "when it has a readily and commonly understood meaning." State v. N.I., 349 N.J. Super. 299, 308 (App. Div. 2002). We are satisfied that the phrase "took or exercised unlawful control" is plain language having a readily and commonly understood meaning, which does not require further definition.
Defendant's real objection, albeit couched as an objection to the Model Jury charge, seems to be that a jury could not have reasonably convicted defendant of theft while acquitting him of burglary. That argument does not carry the day either. "Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room." State v. Muhammad, 182 N.J. 551, 578 (2005). We do not attempt to reconcile counts on which a jury has acquitted or convicted. Ibid. The issue that we address is "whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty." Ibid. There was ample evidence to support the theft count, and it would be improper for us to question the consistency of the verdict.
Defendant also contends that the trial judge should not have granted the State's request to charge the jury that defendant's "unexplained and exclusive possession of the property shortly after the theft is a circumstance from which you may reasonably draw an inference that the possessor is the thief." See Model Jury Charges (Criminal), Theft of Movable Property (N.J.S.A. 2C:20-3(a)) (April 14, 2003).*fn1 The trial judge gave the instruction, despite trial counsel's objection, for the obvious reason that defendant was found in the driveway minutes after having been witnessed by Phillips and Simms in the "unexplained and exclusive possession" of the stolen items. Therefore, we consider a more than adequate factual basis to have been established for the charge to be read to the jury.
Defendant also argues that the trial judge's recitation of the Model Jury Charge violated his Fifth Amendment right to remain silent because it included the word "unexplained." That the Model Jury Charge was based on well-established law cannot be disputed. The use of the charge was permitted since at least 1959. See State v. Dancyger, 29 N.J. 76, 85, cert. denied, 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed. 2d 1255 (1959). The charge did not implicate defendant's Fifth Amendment privilege because he could have presented proofs in some fashion, other than his own testimony, to explain his possession of stolen items. The charge has been permitted even where there is an absence of a specific showing in the record as to the availability of a source other than defendant's own testimony to explain such possession . . . where the property is of a nature that is not subject to abandonment or some similar act by the owner and the circumstances otherwise are such as to strongly suggest the existence and availability of explanatory evidence. [State v. Burch, 179 N.J. Super. 336, 343-44 (App. Div.), certif. denied, 89 N.J. 396 (1981).]
Two televisions and a duffle bag full of change are clearly items that are not typically abandoned by the rightful owner. Therefore, this instruction was proper in light of the facts developed during the trial.
Defendant also argues that any testimony related to defendant's pocket knife should have been excluded from the trial. Because the State could not produce the item, defendant asserts, he was precluded from raising defenses to the theft relating to the knife's characteristics, such as that it would not have been able to cut through or pry a screen from a basement window.
When there has been "suppression, loss, or destruction of physical evidence," we look to three factors to determine whether a due process violation has occurred. State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed. 2d 723 (1998), overruled on other grounds, State v. Brown, 190 N.J. 144 (2007). These factors are: "(1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced." Ibid. Where missing evidence is only potentially exculpatory, the "court's finding of bad faith is crucial." See State v. Ruffin, 371 N.J. Super. 371, 392 (App. Div. 2004); State v. Brent, 265 N.J. Super. 577, 586-87 (App. Div. 1993), rev'd on other grounds, 137 N.J. 107 (1994). "In the absence of bad faith, relief should be granted to a defendant only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence." Dreher, supra, 302 N.J. Super. at 489.
The trial court conducted a N.J.R.E. 104 admissibility hearing out of the presence of the jury to determine if the government acted in bad faith. The judge found that the knife was innocently "misplaced, and possibly destroyed." We concur with the trial court, not only because of the factual circumstances testified to by the officers, but from the commonsensical view that the State's case was only hampered, not helped, by the loss of the knife. There simply is no factual nexus between the production of the knife and the theft conviction that warrants further consideration. There has been no showing of "manifest prejudice or harm." See Dreher, supra, 302 N.J. Super. at 489. The admission of the testimony regarding the knife was not error.
Defense counsel proposed a curative instruction as to the missing knife, which the court rejected, giving its own instruction instead. Defendant now contends that the instruction was inadequate. Because he did not object to the instruction at trial, it must be reviewed pursuant to the plain error standard.
R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
The judge told the jury: "The police misplacing or destroying the knife may be considered by you as a factor in determining whether the State has proven the defendant's guilt beyond a reasonable doubt." We find that nothing further was required as the instruction was not clearly capable of producing an unjust result.
Defendant next argues that the prosecutor's references during summation that defendant "stashed" the stereo and coins from the duffle bag and that the televisions were worth $150 each constituted prosecutorial misconduct. In reviewing the claim, this court must determine if "'the conduct was so egregious that it deprives the defendant of a fair trial.'" State v. Loftin, 146 N.J. 295, 386 (1996) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)). We consider whether there was a timely objection, whether the comment was withdrawn or stricken, and whether the trial court issued a cautionary instruction. Ramseur, supra, 106 N.J. at 322-23.
In our view, there was nothing improper in the State's reference to defendant "stashing" the stereo because defendant specifically asked Phillips if she would keep the television sets in her apartment. In other words, defendant asked Phillips if she would "stash" the items. Given this factual scenario, the prosecutor's passing reference did not deprive defendant of a fair trial and did not constitute error.
Although the prosecutor did not present proofs that the televisions were worth $150 at the time they were stolen other than the victim's testimony, the court read to the jury the Model Jury Charge regarding the value of the allegedly stolen items. No one objected to the prosecutor's misstatement, and the jury was properly instructed as to their determination of fair market value. Furthermore, the duffle bag itself allegedly contained almost $200 in change. Defendant's argument as to this "misstatement" has no merit.
Finally, defendant argues that the sentence was illegal and excessive because he should have been sentenced as a disorderly persons offender due to the State's failure to prove that the value of the items was in excess of $200. There were ample proofs to support the jury's verdict that defendant was found in possession of stolen items having a value of at least $200. There was therefore nothing improper about the sentence.
Defendant also contends that the court should have found as mitigating factors that defendant's conduct did not cause serious harm, N.J.S.A. 2C:44-1(b)(1), and that he did not contemplate that it would cause serious harm, N.J.S.A. 2C:44-1(b)(2). Mitigating factor one, however, is included in the grading of the offense. To have found that factor would have constituted impermissible double counting. See State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989) (holding that "[d]ouble counting mitigating factors distorts the sentencing guidelines as much as double counting aggravating factors"). There were no facts developed at sentencing that would have justified the award of mitigating factor two. As a result, the trial court did not err in not awarding mitigating factors.
Additionally, the court found as aggravating factors, the risk of re-offense, N.J.S.A. 2C:44-1(a)(3), that defendant had a significant prior criminal history, N.J.S.A. 2C:44-1(a)(6), and the need to deter, N.J.S.A. 2C:44-1(a)(9), based on the judge's review of defendant's criminal history. That history commenced in 1979 and included attempted robbery, robbery, assault, and other theft offenses. The court gave those factors great weight.
Our role in reviewing sentences is merely to determine whether an abuse of discretion has occurred, not to substitute our judgment for that of the sentencing court. State v. Kirk, 145 N.J. 159, 175 (1996). We are satisfied, based on our review of the record, that the sentencing judge properly identified the facts upon which he based the award of aggravating factors and awarded the factors appropriately. The sentence itself does not shock our conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).