May 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MITCHELL ROBINSON A/K/A MICHAEL ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-09-01317.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Lihotz and Messano.
Tried by a jury, defendant Mitchell Robinson, a/k/a Michael Robinson, was found guilty of fourth-degree theft of a credit card, N.J.S.A. 2C:21-(6)(c)(1) (count one); third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (count two); and fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(4) (count three). Defendant was sentenced to an aggregate term of four years in prison. He raises the following points on appeal:
THE MOTION TO DISMISS COUNT ONE AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED. R. 3:18-1.
THE MOTION TO DISMISS COUNT THREE AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED. R. 3:18-1.
THE INSTRUCTIONS TO THE JURY CONCERNING HINDERING ONE'S OWN APPREHENSION WERE FATALLY DEFECTIVE. (Not Raised Below).
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The State's first witness at trial, George Hopkins, testified that in June 2004 he kept various credit cards in his wallet. On June 15, the day before he was scheduled to leave on a work-related "national tour," he noticed his wallet was missing. He recalled last using one of the credit cards on June 14. Hopkins searched his car, his home, and his office for the wallet with negative results. Late in the morning, he received a call from one of the credit card companies inquiring whether he had "just used the card in Passaic[.]" Hopkins told the company he had not, and then spent the remainder of the day canceling his credit cards with the remaining companies. He left the state on the morning of June 16 without contacting the police to report the missing wallet. Upon his return, the police contacted Hopkins and advised him they had recovered the wallet.
Hopkins identified four of the credit cards in court as being those he possessed in June 2004. He did not know defendant, and had not given him, or anyone, authority to use the cards. However, he could not say whether the wallet had been lost or stolen, indicating only that neither his car nor office had been burglarized.
Alex Castellon, a Passaic police officer, testified that on June 15, 2004, he was also "employed by ShopRite doing security[.]" He was wearing "plain clothes[,]" but carried a gun, handcuffs, mace, and an "exposed" police badge. On that day, he was working with the supermarket's "loss prevention officer, Anthony [Diamanti]" monitoring surveillance cameras located throughout the store. At around 6:00 p.m., he and Diamanti responded to the cashier area of the store where defendant was attempting to purchase six cartons of cigarettes, valued at $333.74, with a credit card. Defendant "had no positive identification with his picture [on it][,]" but claimed "he had made a purchase earlier during the day using the exact same credit card without having to  show positive identification." Defendant showed the receipt for the earlier purchase in the amount of $11.13.
Castellon called the credit card company and was told the card had been "reported stolen[.]" He requested defendant "take a walk with [him] to the security room [to] gather all the information." Defendant first told Diamanti, in Castellon's presence, that he was George Hopkins. Shortly thereafter, defendant claimed he was Mitchell Robinson, finally disclosing his true identity, Michael Robinson, to Castellon.
On cross-examination, Castellon testified that while in the security office, defendant told him that he found the wallet and later claimed he found the credit cards. Castellon also indicated that when Hopkins was contacted by one of the credit card companies who were investigating, he claimed his car had indeed been burglarized.
Lidia Quelic was the "front end manager" of the ShopRite on June 15. Defendant wanted to buy six cartons of cigarettes, so she retrieved them from the "cigarette cage" and brought them to one of the cashiers. When defendant indicated he was using a credit card for the purchase, Quelic asked for identification. Defendant did not have any and looked "nervous," so Quelic called for security. After Diamanti took defendant to the security room, Quelic "voided" the purchase.
Diamanti, the State's last witness, testified that he told defendant that he needed identification to use the credit card because "he already used a credit card which was declined  [a]nd [now] he wanted to use another credit card." Diamanti knew that Castellon had confirmed with the credit card company that "the card w[as] stolen." Diamanti identified defendant and the stolen credit cards in court, and also testified that defendant told him his name was George Hopkins.
Defendant produced no witnesses. His birth certificate, in the name of Michael Robinson, was admitted into evidence by stipulation of the parties. Defendant then moved for a judgment of acquittal. He argued as to count one that the State had not proven the credit cards were taken from Hopkins' "possession, custody or control without his consent." Alternatively, defendant argued the State had failed to prove that he "kn[e]w  those cards [were] so taken" and that he "receive[d] them with the intent to use [them], sell [them], or transfer [them][.]" As to the third count, defendant contended that he did not supply any false information directly to Castellon, the only law enforcement officer to testify. According to defendant, his responses to Diamanti, the security guard, were insufficient proof as to the hindering charge. In a brief oral decision, the judge denied defendant's motion. After summations and the jury charge, defendant was convicted of all three counts, sentenced, and this appeal ensued.
In Points I and II, defendant argues his motion for acquittal as to counts one and three should have been granted. He contends that the State failed to prove beyond a reasonable doubt that he acquired Hopkins' credit cards in "either [of the] proscribed" modes defined by N.J.S.A. 2C:21-6(c)(1). Defendant further argues that the State failed to prove beyond a reasonable doubt that he was guilty of hindering his own apprehension because it failed to demonstrate he "knew, when he gave false information, that the person to whom he was giving it was a police officer." We are unpersuaded by either argument.
When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):
[W]hether viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, 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 of the charge beyond a reasonable doubt. [Id. at 459 (citation omitted).]
We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 549 (2004).
Defendant was charged with violating N.J.S.A. 2C:21-6(c)(1) which provides in pertinent part:
A person who takes or obtains a credit card from the person, possession, custody or control of another without the cardholder's consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of a crime of the fourth degree. Taking a credit card without consent includes obtaining it by any conduct defined and prescribed in Chapter 20 of this title, Theft and Related Offenses.
The State proceeded solely on the second theory of culpability, i.e., that defendant received the credit cards with the intent to use them, knowing they were taken or obtained from Hopkins without his consent. Defendant argues the State failed to prove he had knowledge that the credit cards were taken without Hopkins' consent, as opposed to having been lost or misplaced, because Hopkins could not state the credit cards were stolen.*fn1
We conclude, however, that there was sufficient circumstantial evidence for the jury to conclude beyond a reasonable doubt that the credit cards were "take[n] or obtain[ed]" from Hopkins' "person, possession, custody or control . . . without [his] consent[.]" Although Hopkins testified that the cards may have simply been lost, defendant himself elicited on cross-examination that Hopkins had earlier reported, on the day he discovered the wallet missing, that his car had been burglarized and the cards stolen. Additionally, defendant's conduct when confronted by store personnel and Castellon supports a reasonable inference that he had knowledge of the cards' purloined character. He first used one of the cards to make a modest purchase earlier in the day. Apparently when this provoked no suspicion, defendant returned later to the same supermarket to make a more substantial purchase of cigarettes. When confronted by Quelic and while trying to use a different credit card, he claimed to have no identification. When Diamanti questioned him, defendant claimed to be Hopkins; he then utilized an alias with Castellon before supplying his true name. It was only after this that defendant claimed to have first found the wallet, and thereafter, to have found the credit cards. All this behavior implies knowledge that the cards were taken or obtained from Hopkins without his consent.
Defendant next contends that his motion for acquittal as to count three should have been granted because the State failed to prove beyond a reasonable doubt that he gave false information "to one he knew to be a police officer, and that he did it to hinder his own" apprehension. We disagree, and find the argument to be of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We only add the following.
"A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment . . . he . . . [g]ives false information to a law enforcement officer[.]" N.J.S.A. 2C:29-3(b)(4). There was sufficient circumstantial evidence upon which the jury could conclude defendant knew Castellon was a "law enforcement officer." He carried a gun, handcuffs, and mace. Most importantly, Castellon displayed his police badge even though he was in "plain clothes." Furthermore, in providing a false name to Castellon, the available inference to the jury was that defendant did so in hopes of not having his true identity become known. Whether it ultimately would become known after his arrest, as defendant argues, is of little moment. The State need only prove that defendant's purpose in supplying the false name was to hinder his own "apprehension, investigation, [or] prosecution[.]" Under all the circumstances, there was sufficient proof of defendant's purposeful mental state.*fn2
In Point III, defendant raises for the first time an objection to the judge's charge on hindering. Defendant concedes the judge gave the appropriate model jury charge, but contends the charge was insufficient because it failed to explain that the State must prove defendant provided false information to someone he knew was a law enforcement officer. We find no basis to reverse defendant's conviction on this ground.
Since there was no objection, we must review whether the charge as given was plain error. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . 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)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised  was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
As we have already observed, the circumstantial proof that defendant knew Castellon was a law enforcement officer was substantial, and the proof of defendant's purpose in providing an alias was equally strong. Thus, we have no doubt that the failure to include a specific instruction for the jury on this score did not, "of itself," produce an unjust result.
Moreover, both in his motion for acquittal and in his summation to the jury, defense counsel never claimed that defendant failed to perceive that Castellon was a law enforcement officer. We have no reason to believe, therefore, that the jury was misled by the judge's charge. Defendant is entitled to an adequate instruction on the law, which is what he received. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002) (citation omitted).