On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-3929.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges Kestin and Newman.
Defendant, Eric N. Evangelista, appeals from a judgment convicting him of theft, N.J.S.A. 2C:20-3; and sentencing him to a five-year probationary term conditioned on thirty days in the Camden County Jail, with a thirty-day jail credit. The court ordered $25,000 in restitution. We affirm.
The matter was tried without a jury. A series of witnesses testified for the State; none were presented by defendant. The court found each of the witnesses "to be credible and believable under the circumstances."
Defendant's employer had been engaged to make some improvements in the victims' home. The project involved the installation of shelving in the pantry, and cabinet trim in the kitchen and laundry room, all on the main floor of the house. Defendant was a member of the four-person work team. He had been working for this employer for several weeks. The employer had completed several projects for these homeowners in the past, engendering their trust and confidence.
On their return at the end of the day, the homeowners noted, throughout the house, in carpeted rooms and on area rugs, impressions of footprints from sneakers or work boots, including in areas on the second floor. All of the carpets and rugs had been freshly vacuumed that morning. Several days later, the homeowners discovered that several items of jewelry were missing from the home. On the day of the work project, one of the homeowners had returned briefly during his lunch hour. "When I walked into the house, I yelled 'yo', or something to see where they were. And a guy come running down the steps . . . . from the second floor." He could not identify that person.
The employer and the other two workmen were among the witnesses at trial. One of the workmen testified that defendant had wandered about during the time they were in the home. At one point, defendant displayed to that co-worker a firearm he had found in a zippered case stored under a television cabinet. Defendant, in a statement given to the police -- that was received in evidence without objection -- admitted to wandering about throughout the home and examining dressers and drawers, but adamantly denied taking anything from them. The employer also testified that when he learned, a few days after the job, that some jewelry was missing, he noted that defendant's toolbox was missing from its usual place in the trailer the work crew had used. The third workman-witness also testified that defendant's toolbox was missing from its usual place.
In addition to its credibility findings, the trial court found the circumstantial evidence in the matter to be persuasive. It found "that the State has proven beyond a reasonable doubt the fact that [defendant] was on the property on that date." The court found, specifically, that there was an individual in places that the individual should not have been under the circumstances.
And everything, including the statement of [defendant,] looks to him.
The . . . fact in my mind that is totally persuasive, and really links everything that I think needs to be linked[,] is when one looks at the fact that he was in a drawer where the gun case was, and opened the gun in the presence of a co-employee, that to me speaks volumes.
It speaks volumes to the fact . . . he was in a place that he should not have been, and . . . not only was he in a place he shouldn't have been, he was looking in drawers that he should not have been looking into.
It is certainly supportive, and logic dictates that one can consider the toolbox issue that it was there ...