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State of New Jersey v. andrea Whitehurst

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREA WHITEHURST, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1290.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2010

Before Judges Carchman and Graves.

A jury convicted defendant Andrea Whitehurst of third-degree theft by taking or exercising unlawful control over movable property of another with purpose to deprive him thereof in violation of N.J.S.A. 2C:20-3. The same jury acquitted her of third-degree theft by knowingly receiving stolen property in violation of N.J.S.A. 2C:20-7. On January 16, 2009, defendant was sentenced to a five-year period of probation, subject to a fifty-three-day jail term, which had already been served, and other conditions.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN PERMITTING A SECOND QUESTION ON THE JURY VERDICT SHEET WHICH EXPANDED THE THEORY UPON WHICH THE DEFENDANT COULD HAVE BEEN FOUND [GUILTY].

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR JUDGMENT OF ACQUITTAL; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (PARTIALLY RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN ALLOWING HEARSAY TESTIMONY WHICH WAS UNTRUSTWORTHY AND UNRELIABLE.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

A. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO RECONSIDER HER SENTENCE.

We find no merit in these arguments, and we affirm defendant's conviction and sentence.

The facts are not complicated. In August 2005, defendant started working as a caretaker for John Salvini, a partially blind seventy-six-year-old man, who needed help with daily activities. In April 2006, Salvini purchased a used GMC Envoy by taking out a loan in his name and registering the vehicle in his name. Because Salvini was unable to drive, he placed defendant's name on the insurance policy so that she could drive the vehicle.

Salvini was hospitalized in August 2006, and on August 27, 2006, he signed a power of attorney authorizing his son, Robert, to handle his affairs. Thereafter, both Robert and his wife, Loeky, left messages on defendant's cell phone asking her to return Salvini's vehicle. Loeky testified that she had a telephone conversation with defendant on September 5, 2006, in which defendant claimed "it was her car":

I told her that we had just found out that it wasn't her car. That it was my father-in-law's car. And I said, that you need to return the car, because we're trying to straighten out all his financial stuff. And she argued with me, that it wasn't his car. It was her car. And I said, but we have the papers here that say that the loan is in his name, the insurance is in his [name] . . . . She kept saying, "but I'm paying for the car. It's my car." I said, well, then maybe you can straighten it out with the loan company or whoever, you know.

Because we just are trying to do the right thing for my father-in-law.

Following that conversation, Robert contacted Geico Insurance and learned that his father's car was insured through October 17, 2006. He was also told that defendant was an authorized driver on the insurance policy. Nevertheless, Robert did not discuss the matter with his father because he was "very

ill."

On October 2, 2006, Robert "filed a stolen car claim" with

the Cliffside Park Police Department. His father died on October 8, 2006. Several months later, on May 17, 2007, defendant was arrested in New Brunswick when she was observed driving the "gray GMC Envoy," which had been reported stolen.

At trial, the court instructed the jury that the parties stipulated to the following facts:

Both sides have agreed and stipulate, that if a representative from the Geico Insurance Company were called as a witness to testify, that he or she would testify that Andrea Whitehurst was listed as an authorized driver on the Geico insurance policy, which was purchased by John Salvini, Junior, for the GMC Envoy, that is the subject of this case. The policy coverage began April 12, 2006, and expired October 17, 2006.

Defendant did not testify or call any witnesses. In his summation, defendant's attorney argued that the entire case was "built on a fiction, on a phony belief, that this was a stolen car" because defendant "was an authorized driver." On the other hand, the State argued that the case was "a textbook example of exercising unlawful control over moving property of another" because defendant never owned the car, never paid the car loan, and never returned the car.

In her first point, defendant argues she was unfairly prejudiced because the judge granted the State's request to instruct the jury on the indicted offense of receiving stolen property under N.J.S.A. 2C:20-7, and also on theft of moveable property under N.J.S.A. 2C:20-3, a charge that was not contained in the indictment. The consolidation statute, N.J.S.A. 2C:20-2(a) provides as follows:

Conduct denominated theft or computer criminal activity in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft or computer criminal activity may be supported by evidence that it was committed in any manner that would be theft or computer criminal activity under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

As the Court has held, "the Legislature intended N.J.S.A. 2C:20-2(a) to reach all types of theft, linked together by the concept of the 'involuntary transfer of property.'" State v. Talley, 94 N.J. 385, 394 (1983). A defendant indicted for robbery is therefore on notice that he is charged with committing a theft, "and the mere fact that the theft was accomplished by deception rather than by force hardly can be said to render the indictment insufficient to encompass defendant's conduct or to make it constitutionally defective." Ibid.; see also State v. Washington, 408 N.J. Super. 564, 580 (App. Div.) (holding that a defendant charged with theft by unlawful taking may be found guilty of theft by deception or "any provision of Chapter 20 of the Code, notwithstanding the specification in the indictment"), certif. denied, 200 N.J. 549 (2009).

In the present matter, defendant was indicted for receiving a stolen vehicle, and she contends that it was improper for the court "to charge alternative theories of theft." We do not agree. In our judgment, the additional charge for theft of movable property was permissible under the consolidation statute and it did not deprive defendant of a fair trial. Accordingly, we find no error in the court's instructions or the form of the jury verdict sheet.

In her next point, defendant argues the trial court erred in denying her motion for judgment of acquittal at the end of the State's case. Pursuant to Rule 3:18-1, a trial court "shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal . . . if the evidence is insufficient to warrant a conviction." The test "is 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 of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). In denying the motion, the trial judge stated:

No question that this information came to the attention of the son of Mr. Salvini . . . and his wife. Because when they were cleaning out the apartment, they noticed loan payments that were due on this car. They were . . . credible witnesses. . . .

. . . [T]here is really no question that the car was owned by Mr. Salvini. And that the credit company was coming after him for payment on the loan. They then asked, again . . . that Miss Whitehurst return the car back. It appears they did this several times. And, at one point, they even went to the Police Department to sign a complaint for a stolen vehicle. And, again, that was signed; but not really acted upon until sometime afterwards.

So, the question here is whether or not a reasonable jury could . . . find guilt of a theft charge. Because, I would point out, that not only did they indicate that they asked several times for Miss Whitehurst to bring the car back. But the testimony was, they never got the car back. So, looking at this, giving all the favorable inferences, I do believe . . . a reasonable jury could find that the state has met the elements, beyond a reasonable doubt, just based on these facts.

Theft of moveable property occurs when a person "unlawfully takes, or exercises unlawful control over moveable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a). In this case, the trial court concluded that defendant was not entitled to a judgment of acquittal because the State's proofs were sufficient to support a conviction. Based on our review of the record, we agree the evidence was sufficient to warrant a conviction, and we find no error by the trial court.

Defendant next argues that seven remarks by the prosecutor during summation require reversal. Prosecutors are "expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor," State v. Nelson, 173 N.J. 417, 460 (2002) (citing State v. Smith, 167 N.J. 158, 177 (2001)). In this case, the prosecutor's comments were "reasonably related" to the evidence introduced at trial, Frost, supra, 158 N.J. at 82, and we find no basis for reversal.

In point four, defendant argues that the trial court erred when it allowed Robert's recollection "to be refreshed by the computer generated record made by Loeky." Robert testified that after his father was admitted to the hospital in August 2006, he began to "keep track of the events as they were going on," and his wife "kept the notes on her PC, on Excel." The trial court ruled that the document prepared by Loeky was not admissible as evidence, but Robert and Loeky were permitted to refresh their recollections by referring to the document. We are satisfied there was a proper foundation for permitting Robert to use the document, and we find no error. See State v. Carter, 91 N.J. 86, 122 (1982) ("Once a proper foundation has been laid, a witness may examine any document to refresh his memory.").

Defendant also claims that her sentence is "manifestly excessive and should be reduced." According to defendant, a three-year period of probation "would have been adequate." There is no merit to this argument. Defendant's sentence is not excessive or unreasonable, and it certainly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Affirmed.

20110421

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