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State v. Stewart


January 7, 2009


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-07-0782.

Per curiam.


Submitted November 10, 2008

Before Judges Lisa, Sapp-Peterson and Alvarez.

Defendant, Patricia Stewart, was charged with offenses in twelve counts of a forty-eight count indictment against her and others. Her husband, John Stewart, was charged in all forty-eight counts. Other individuals were charged in some counts. Most counts charged third-degree burglaries, N.J.S.A. 2C:18-2, and related third-degree thefts, N.J.S.A. 2C:20-3. Two counts pertaining to John Stewart involved unrelated charges and were severed. A number of counts were dismissed and not submitted to the jury. At the conclusion of the State's case, Judge Waters granted defendant's motion to dismiss eight of the counts against her. Therefore, only four counts pertaining to defendant were submitted to the jury. The jury acquitted defendant of three counts, and found her guilty of only one count of third-degree theft. The jury found John Stewart guilty of twenty-five counts.*fn1 The judge sentenced defendant to a three-year probationary term, conditioned upon serving 364 days in the county jail. Defendant was also ordered to perform fifty hours of community service work, pay all mandatory monetary assessments, and pay $7,000 in restitution to Lori Bertacci, the victim of the theft of which defendant was convicted.

On appeal, defendant argues:







(Mostly not raised below).







We reject these arguments and affirm.

In addition to defendant and her husband, John Stewart, the couple's daughters, Laura Stewart and Samantha Stewart, lived in their household in Vineland. Laura's boyfriend, Morris Riland, a convicted felon, also lived there. Laura and Riland were among those named in the original indictment.

On February 23, 2004, a search warrant was executed at defendant's home. The police found numerous stolen items in the home, in a storage loft above the garage, and in the nearby wooded area. John Stewart was present during part of the search, and he pointed out to the police many items that did not belong to him. The recovered items were linked to a string of burglaries of homes under construction and commercial properties in Vineland or nearby Millville, most of which occurred between 2002 and early 2004. Victims were brought to defendant's home at the time of the search, and later to the police storage area, and identified many items that were stolen from them.

Only defendant and her husband went to trial. Riland entered into a plea agreement and testified against them.

We will describe briefly the substance of the charges and the disposition of those charges pertaining to defendant.

In counts one and two, defendant, her husband and Riland were charged with burglary and theft from the property of Lori Bertacci at 2260 Pennsylvania Avenue in Vineland. The home was under construction at the time. Bertacci reported that the home was burglarized, and that stolen items included a bedroom set worth $10,000, cabinets worth $8,000, chandelier crystals worth $600 and other items, including lights, a shop vacuum, a bathroom mirror, a mattress and an extension cord.

According to Riland, defendant accompanied John Stewart and him to the home. John Stewart backed his van into the garage, closed the garage door, entered the residence, disassembled the bed and several cabinets and removed them, along with some light fixtures. Riland and John Stewart loaded the bedroom set and cabinets onto a trailer. A number of boxes were also removed from the house. Riland said defendant loaded "small boxes, things that [John Stewart] asked her to put on the trailer." Riland was unsure what the boxes contained, but guessed "the hardware maybe and maybe power tools." Riland and John Stewart set up the bedroom set in a bedroom at the Stewart residence. Police referred to this as the "master bedroom" in the house.

When the search warrant was executed, police called Bertacci to defendant's residence. She identified her bedroom set, as well as cabinets, three lights and a shop vacuum as items stolen from her home.

At trial, at the conclusion of the State's case, Judge Waters denied defendant's motion to dismiss counts one and two as to her. The jury found defendant not guilty of count one, burglary, but guilty of count two, theft of more than $500 worth of Bertacci's property. The jury found John Stewart guilty of counts one and two.

Counts three and four and counts twenty-one and twenty-two charged defendant and her husband with two separate burglaries and thefts of Pampered Pup Kennels on two separate dates.*fn2 These four counts were dismissed by the court as to defendant at the conclusion of the State's case. John Stewart was found guilty of counts three and four, but not guilty of counts twenty-one and twenty-two.

Counts fifteen and sixteen charged defendant and John Stewart with burglary and theft from a home under construction at 2223 Musteral Lane. At the conclusion of the State's case, the court dismissed these counts against defendant. The jury found John Stewart guilty of both charges.

Count thirty-three charged defendant, John Stewart, Laura Stewart and Riland with theft of a 1993 Chevy Astro van. At the conclusion of the State's case, the court dismissed this count against defendant. The jury found John Stewart guilty of that count.

Count thirty-five, charged defendant, John Stewart, Laura Stewart and Riland with theft of a 1989 Honda Accord. Count thirty-six charged those parties with possession of that vehicle with the motor vehicle identification number removed or altered, a third-degree crime, in violation of N.J.S.A. 2C:17-6b. The jury found defendant not guilty of both counts. It found John Stewart guilty of both counts.

Count thirty-seven charged defendant and John Stewart with burglary of 2246 Gettysburg Drive. At the conclusion of the State's case, the court dismissed this count as to defendant and her husband.

In her first point, defendant argues that the judge erred by not entering a judgment of acquittal on count two, charging her with theft from Lori Bertacci, the only count on which defendant was convicted. As we have stated, the jury acquitted defendant (but not her husband) of the corresponding burglary embodied in count one.

Defendant moved for acquittal at the end of the State's case. Judge Waters found "ample evidence from which a jury could find beyond a reasonable doubt that Ms. Stewart participated in the burglary and committed the act of [t]heft."

Defendant argues before us, as she did before the trial court, that the evidence was insufficient to support her theft conviction.

The critical inquiry on a motion for a judgment of acquittal is whether, giving the State the benefit of all favorable testimony and favorable inferences that reasonably could be drawn from that testimony, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

A person is guilty of theft who "unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3a. Theft is a third-degree crime if the value of the stolen property exceeds $500 and is less than $75,000. N.J.S.A. 2C:20-2b(2)(a). The trier of fact determines the amount, and, when items are stolen in "one scheme or course of conduct, [the amount] may be aggregated in determining the grade of the offense." N.J.S.A. 2C:20-2b(4).

Defendant argues that the evidence was insufficient to establish her possession or control of Bertacci's stolen property. She argues that unlike Riland and John Stewart, there was no evidence that she disassembled, transported, assembled or installed Bertacci's cabinets or bedroom set in her home, nor was there any evidence that she used the bedroom in which Bertacci's furniture was recovered. She further claims that her act of loading boxes in Bertacci's garage onto a trailer fails to show that she intended to permanently deprive Bertacci of those items. Defendant also claims that even if her act of loading boxes could establish her theft of those boxes, because the contents were never identified insufficient evidence existed to support the jury's finding of a value in excess of $500.

These arguments are unpersuasive. The jury was free to accept Riland's testimony that defendant actively participated in the burglary and theft of Bertacci's home (although it acquitted her of the burglary offense). If so, the jury could well believe that defendant had full knowledge that all of the items removed from Bertacci's home were stolen. And, by having those items in her home (whether she slept in the "master bedroom" or not), she exercised control over them with the purpose of permanently depriving the owner of them. All of the items were properly aggregated in determining the grade of the offense.

There was more than ample evidence from which the jury could reasonably find defendant guilty of theft of more than $500 in value of Bertacci's property. Judge Waters correctly applied the Reyes standard and did not err in denying defendant's motion for a judgment of acquittal on count two.

We next consider defendant's argument that the judge erred in denying her pretrial motion to sever her charges from those of her husband and to try her separately. Two or more individuals may be charged in the same indictment if they are alleged to have participated in the same act constituting the offense. R. 3:7-7. Such jointly indicted defendants may seek severance if the joinder is prejudicial to them. R. 3:15-2(b).

Defendant argues that she was unduly prejudiced and therefore denied a fair trial by being tried jointly with her husband. She contends the jury could draw adverse inferences and erroneous conclusions as a result of a joint trial because of (1) the greater number of counts against her husband as compared to her, (2) the fact that she and John Stewart were married to each other, and (3) a defense strategy used by her husband.

Relying on State v. Belluci, 165 N.J. Super. 294 (App. Div. 1979), modified on other grounds, 81 N.J. 531 (1980), defendant argues that because most of the charges, and therefore most of the evidence, pertained to her husband but not her, severance was necessary. She argues that the large number of charges against her husband could have led the jury to conclude that, despite insufficient evidence against her, she warranted criminal punishment as "a knowing beneficiary" of her husband's thefts. Second, she argues that because she and John Stewart were married, she was unduly prejudiced because the jury must have erroneously concluded that, as John Stewart's spouse, she used or possessed Bertacci's stolen property.

Finally, defendant claims that her husband's defense strategy unduly prejudiced her at the joint trial. Her husband's attorney elicited testimony regarding items seized in the search of defendant's residence which were suspected of being stolen but were never identified as stolen property or used as the basis of any criminal charges. The defense strategy was apparently geared toward demonstrating overreaching by the police and perhaps encouraging jury nullification. But because the allegations against defendant were less extensive, this strategy was not helpful to her, and may well have led the jury to conclude that as the spouse of one who engaged in "systematic criminal activity," defendant deserved criminal punishment.

We do not find these arguments persuasive. Joint trials are preferred where much of the same evidence is needed to prosecute jointly charged defendants. State v. Sanchez, 143 N.J. 273, 281-82 (1996). By trying defendants jointly, courts achieve judicial efficiency, spare witnesses and victims the inconvenience of having to testify at multiple trials, and more accurately assess defendants' relative culpability, which sometimes operates to a defendant's benefit. Id. at 282. Although severance should be granted when a defendant's right to a fair trial will otherwise be unduly prejudiced, severance is not warranted merely because some evidence would be admissible only as to the co-defendant, and even though evidence against one defendant is stronger than against the other. Id. at 282-83. Whether or not to grant severance rests within the sound discretion of the trial court. Id. at 283.

Defendant's argument that the charges and evidence in the counts against her husband prejudiced her is unconvincing, and her reliance on Belluci, supra, 165 N.J. Super. 294, is misplaced. In Belluci, we considered that if a significant portion of evidence is admissible against only one defendant in a joint trial, "the probability of harm to the other may be so great that the trial judge should, as matter of fair practice, exercise his discretion in favor of a severance." Id. at 300. However, allowing a joint trial is not reversible error because of the inherent possibility of a jury inferring "guilt by association," where the court properly instructs the jury as to the separate status of co-defendants, as the trial court had done in that case. Id. at 300-01.

As in Belluci, Judge Waters properly instructed the jury to separately consider the guilt of defendant and her husband. The judge instructed the jury to separately consider each count and to consider only the evidence relevant to each count and each defendant in considering the guilt or innocence of each defendant.

Obviously the jury abided by these instructions, as reflected in its verdict. On a number of counts, the jury found defendant not guilty, but her husband guilty. This discriminating verdict reflects "that the jury was able to consider the co-defendant's guilt separately from defendant because it convicted them of different crimes." State v. Brown, 170 N.J. 138, 162 (2001). Likewise, the jury acquitted defendant of three of the four charges it considered against her, further evidencing a careful assessment of the evidence relevant to each count with respect to each defendant. In our view, defendant was not prejudiced by the joint trial with her husband or the testimony regarding suspected stolen property. Indeed, she may have benefited from it because joint trials "'enabl[e] [a] more accurate assessment of relative culpability--[an] advantage[] [which] sometimes operate[s] to the defendant's benefit.'" State v. Brown, 118 N.J. 595, 605 (1990), (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708, 95 L.Ed. 2d 176, 187 (1987)).

We also reject defendant's argument that the State intended to benefit from a joint trial, as evidenced by its willingness to forgo the use of inculpatory statements by one defendant against the other in order to try the cases jointly. This was a sound prosecutorial decision for a legitimate purpose, namely to conserve resources and assure judicial efficiency in the prosecution of these matters.

Judge Waters did not mistakenly exercise his discretion in denying defendant's severance motion.

Defendant argues that the judge erred by allowing irrelevant and unduly prejudicial evidence which amounted to other-crimes evidence, thus depriving her of a fair trial. This argument pertains to the trial strategy employed by John Stewart, which we previously mentioned. John Stewart's attorney elicited testimony regarding property seized by the police when they executed the search warrant that was suspected of being stolen, but which was never proven to be stolen and did not provide the basis for any criminal charges. Defendant argues that this evidence was inadmissible other-crimes evidence. See N.J.R.E. 404(b). We do not agree.

We first note that defendant did not object to the introduction of this evidence at trial. Accordingly, our review is guided by the plain error standard, and we will not reverse unless it is shown that any error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but it 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). An appellate court may interpret counsel's failure to raise the alleged error at trial to mean that trial counsel did not consider the evidence to be significant or prejudicial in the context of the trial. Id. at 333.

We find no error, let alone plain error in the admission of this evidence. The evidence was elicited at the behest of counsel for one of the defendants on trial. It was acknowledged by the State's witness that the evidence, although suspected when it was seized of being the fruits criminal activity, was indeed not tied to any such activity. Therefore, this was not other-crimes evidence. Considering the jury's discriminating verdict with respect to defendant, acquitting her of three out of four counts it considered, and considering the strong evidence of her guilt on the theft of Bertacci's property, if there was any error in this regard it is not sufficient to raise a reasonable doubt in our minds as to whether it might have led the jury to a result it otherwise would not have reached. Thus, if there was any error it was harmless.

Defendant's next argument is that the judge erred in denying her motion at the end of the State's case for acquittal on counts thirty-five and thirty-six, charging respectively theft of a Honda Accord and knowing possession of a vehicle with an altered vehicle identification number. The jury acquitted defendant on both of these counts. Therefore, even if there was error, it was harmless. No further discussion of this point is warranted. R. 2:11-3(e)(2).

Defendant asserts several alleged errors in the judge's instructions to the jury. There was no objection at trial, and, accordingly, we review these assertions under the plain error standard. With respect to a jury instruction, plain error is 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).]

Defendant argues that the judge failed to properly instruct the jury with respect to Riland's testimony, the property seized at defendant's residence, evidence against defendant regarding counts on which the court granted defendant's motion for acquittal, and the location where Bertacci's stolen property was recovered.

Riland testified that he received a four-year probationary sentence for his guilty plea to his involvement in these crimes. Defendant argues that the court committed plain error by failing to instruct the jury that it should consider the testimony of this cooperating co-defendant with great caution and that it could not consider his guilty plea as evidence of defendant's guilt. See Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006); State v. Stefanelli, 78 N.J. 418 (1979); State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005).

Defendant argues that the only evidence implicating her in the theft of Bertacci's property was Riland's testimony that she actively participated in the burglary and theft. Defendant points out there were inconsistencies in Riland's statement to the police, which originally did not implicate defendant, and his later statements and trial testimony, which did implicate her. Defendant also argues that there was no proof that she slept in the room characterized by police witnesses as the master bedroom, and therefore there was no proof independent of Riland's testimony that she exercised unlawful control over the bedroom set.

We reject these arguments. Riland was vigorously cross-examined by both defense counsel, who argued to the jury that he should not be believed. The judge gave a general credibility instruction. It was very plain that, because of his involvement in the crimes and his acceptance of a favorable plea bargain, Riland's testimony was very suspect. The prosecutor never made an argument that Riland's plea of guilty should be considered as evidence of defendant's guilt. Riland's testimony was not the only evidence supporting defendant's theft conviction. Indeed, the bedroom set, cabinets, and other stolen items were found in her house. Whether she regularly slept in the bedroom characterized as the master bedroom was simply not dispositive of whether she exercised unlawful control over the stolen items.

The failure to give this instruction is subject to harmless error analysis. State v. Adams, 194 N.J. 186, 206-09 (2008); Stefanelli, supra, 78 N.J. at 435-37. Although the instruction should have been given, its absence in the circumstances of this case did not rise to the level of plain error.

Defendant argues that the judge erred by failing to instruct the jury not to infer that she or her husband were engaged in large scale criminal activity based upon the seizure of a large amount of suspected stolen property. According to defendant, this left the jury free to speculate that property not specifically linked to a burglary or theft was in fact stolen, that defendant must have had knowledge that it was stolen, and therefore could infer defendant's knowledge that she was also aware that the bedroom set was stolen. We find this argument unpersuasive.

The judge adequately explained to the jurors that they must consider only evidence relevant to each count with respect to each defendant in assessing each defendant's guilt or innocence on that count. The jury's mixed verdict, finding defendant and her husband guilty of some but not other counts provides confidence that the jury followed this instruction. Again, we do not find plain error in this regard.

Following the same analysis, we reject defendant's argument that the court plainly erred in failing to instruct the jury not to consider evidence pertaining to counts against defendant that were dismissed at the end of the State's case. We decline to speculate that the jurors improperly considered that evidence in assessing defendant's guilt or innocence on the remaining counts that were submitted to them for their consideration.

Finally, for reasons we have already discussed, we reject defendant's argument that the judge plainly erred by failing to instruct the jurors that unless they found that defendant slept in or otherwise used the "master bedroom" she could not be found guilty of exercising unlawful control of Bertacci's bedroom set.

Defendant's final argument is that her sentence is manifestly excessive. We reject this argument. From our review of the record, we are satisfied that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence, that the judge did not apply incorrectly the sentencing guidelines in the Code of Criminal Justice, and that the sentence imposed was not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).


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