March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN M. NORTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-00806.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Parrillo and Hoffman.
Following a jury trial, defendant Kevin M. Norton was convicted of fourth-degree theft, N.J.S.A. 2C:20-3, and was found not guilty of second-degree robbery, N.J.S.A. 2C:15-1. He was also found not guilty of the lesser included offense of simple assault, N.J.S.A. 2C:12-1(a). The trial judge sentenced defendant to an eighteen-month custodial term. Statutory penalties were assessed and defendant was ordered to submit to DNA testing.
On appeal, defendant raises the following issues:
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. NORTON COMMITTED A THEFT AND, ACCORDINGLY, THE GUILTY VERDICT ON THAT CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not Raised Below).
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE A STATEMENT MADE BY MR. NORTON WHERE THE STATEMENT WAS NOT VOLUNTARY, RELIABLE OR RELEVANT AND ONLY SERVED TO CONFUSE THE JURY.
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
We reject these arguments and affirm.
According to the State's proofs, on December 9, 2008, at approximately 4:30 p.m., defendant entered the Home Depot store in Colonia. Two store asset protection employees observed defendant walk quickly to the tool area of the store and pick up several high-value saw blades, without closely examining the items or their prices. Because customers generally examine such items for size and price, the employees found this conduct unusual.
The asset protection employees, who were in plain clothes, observed defendant walk toward the store's garden area. At this time of year, the garden area was stocked with very limited merchandise, and had no working cash registers. Upon making these observations, two other asset protection employees were alerted to defendant's conduct in anticipation that defendant might try to leave the store through a fire exit in the garden area. The employees then observed defendant push the saw blades to the outside of the store through gaps in the fencing next to the fire exit door.
Defendant then reentered the store from the garden department, and walked quickly toward the returns area entrance. At that point, defendant was stopped by four asset protection employees as he was about to leave the store. Defendant initially tried to shove his way by the first employee who stopped him. Two employees then grabbed him by the arms and escorted him back into the store. At that point, defendant stated, "Let me go. I'll go calmly."
While being escorted to the store's asset protection office, defendant shoved his way past the employees and started running toward the front exit of the store. As defendant ran away, one of the employees grabbed the back of defendant's jacket. A struggle ensued and defendant and three employees fell back into a merchandise rack. Defendant was then handcuffed and placed in a chair in the asset protection office awaiting the arrival of the police.
After defendant was in the asset protection office for about twenty minutes, defendant posed the following unsolicited question to John Michael, the store's asset protection manager: "Is this going to be a robbery or theft?" Michael responded that the police were on their way and they would talk to him.
Discrepancies between the report of responding Woodbridge Police Officer Michael Agosta and a report generated by Home Depot's asset protection office was a point of contention at trial. Officer Agosta's report stated that he spoke with only one Home Depot employee, Phillip Swindell, in completing his report. In the narrative portion of his report, Officer Agosta wrote that employees observed defendant select three saw blades from a display rack, place the saw blades under his jacket, and walk out of the store. The report also made no mention of defendant's alleged question regarding theft versus robbery.
Noisa Rivera was the asset protection employee who prepared the incident report for Home Depot. According to the report, surveillance video showed defendant entering and exiting the store. This video, however, was not available at trial due to confusion between this case and another, similar case. There was no video of defendant picking up the saw blades or pushing them outside of the store. Rivera's report indicated that defendant had made an admission but did not indicate exactly what he had said.
Rivera was requested to prepare a supplemental report in preparation for trial. This later report contained information not included in the initial report. In particular, this report contained defendant's statement as to whether the charge was going to be robbery or theft.
Before the State began its case, the trial court held a preliminary hearing to determine the admissibility of the statement pursuant to N.J.R.E. 104(c). The only witness to testify at the hearing was the asset protection manager who heard the statement. After considering the argument of counsel, the trial court ruled the statement admissible.
At trial, the State presented the testimony of the four Home Depot employees involved in the apprehension of defendant. Their testimony established the facts set forth above. Rivera described the observations she made of defendant entering the store, picking up the saw blades, walking to the garden area, and pushing them to the outside of the store. She further testified that she recovered the saw blades from the outside of the store immediately after defendant was apprehended. Two other employees testified that they each observed defendant's activities in the garden area, and that they were involved in the ensuing apprehension and scuffle. Finally, the asset protection manager testified about the scuffle and the unsolicited statement of defendant.
Defendant did not testify. The only witnesses for the defense were Officer Agosta and a private investigator. Officer Agosta testified that the case was "pretty much solved" by the time that he arrived. He further stated that store security personnel usually "write their own report and gather their own evidence." The private investigator testified to various spatial measurements of the Colonia store, particularly in the garden area. From his testimony, which was unchallenged, it was established that the distance from the three employees' vantage point to the spot where defendant pushed the saw blades through a fence was approximately 140 feet. On cross-examination, the private investigator was shown a photograph from that vantage point and agreed that despite the distance, one can nonetheless see the fire exit door in the picture.
Defendant first asserts that the jury's verdict finding him guilty of theft was against the weight of the evidence. Because defendant did not move for a new trial before the trial court, this claim is not cognizable on appeal. R. 2:10-1. A brief discussion of this point is nonetheless appropriate.
Given the substantial evidence presented by the State at trial, see State v. Reyes, 50 N.J. 454, 458-59 (1967), this claim is without substantive merit. Three Home Depot employees each testified that he or she observed defendant proceed into the garden area and push the saw blades to the outside of the store. The saw blades were immediately recovered from the outside of the store in the exact area defendant had been observed pushing them out. While being escorted back to the asset protection office, defendant attempted to flee. See State v. Mann, 132 N.J. 410, 418 (1993) ("Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt.").
As further support for his argument on this point, defendant cites the contradiction between the police report and the Home Depot incident report. The existence of contradictory evidence, however, does not in itself compel the conclusion that the conviction in this case was against the weight of the evidence. The jury is free to make credibility determinations and accept or reject any portion of testimony based on those determinations. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Further, as Officer Agosta testified that he handled thirty to forty shoplifting incidents between Thanksgiving and Christmas 2009, a reasonable jury could easily conclude that Officer Agosta had simply confused defendant's case with one of the many others that he handled during the busy holiday shopping period. In light of the evidence discussed above, there was sufficient evidence to warrant a conviction. R. 3:18-1.
Defendant next contends that the trial court erred in admitting his statement made while awaiting the arrival of police in the store's asset protection office. N.J.R.E. 803(b)(1) provides that a statement offered against a party which is the party's own statement is not excluded by the hearsay rule. "Generally, as long as there are no Bruton,*fn1 Miranda,*fn2 privilege or voluntariness problems, and subject to N.J.R.E. 104(c), the State may introduce at a criminal trial any relevant statement made by a defendant." State v. Covell, 157 N.J. 554, 572 (1999) (footnote omitted).
Before defendant's statement was admitted, the trial court considered the totality of the circumstances surrounding the statement to determine its admissibility. See State v. Cabrera, 387 N.J. Super. 81, 99-100 (App. Div. 2006). At the conclusion of the Rule 104(c) hearing, the court noted that defendant, who was thirty-seven years old at the time of the alleged offense, appeared to be an intelligent man with significant criminal experience. The statement was made approximately twenty minutes after the initial apprehension, while defendant was handcuffed. The court found that "[t]here was no physical or mental coercion, no threats, no promises. And - even though he was in custody, there was no questioning[,] there was no interrogation." Based on these findings the court concluded the statement to be voluntary beyond a reasonable doubt, and therefore admissible. See State v. Bey, 112 N.J. 123, 134 (1988).
On appeal, defendant raises for the first time two additional arguments against the admissibility of the statement. Specifically, he asserts the evidence was not relevant, see N.J.R.E. 401, and if relevant, its probative value was substantially outweighed by the risk of undue prejudice, see N.J.R.E. 403(a).
Because these arguments are raised for the first time on appeal, defendant must satisfy the plain error standard of review. This standard requires that defendant establish that the error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
"'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevancy is tested by the probative value the evidence has with respect to the points at issue. Manieri v. Volkswagenwerk A.G., 151 N.J. Super. 422, 429 (App. Div. 1977), certif. denied, 75 N.J. 594 (1978). "The true test is the logical connection between the proffered evidence and a fact in issue, i.e., whether the thing sought to be established is more logical with the evidence than without it." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).
Contrary to defendant's argument, defendant's statement, "Is this going to be a robbery or theft?," was highly relevant to defendant's consciousness of guilt. The statement was a frank, unsolicited acknowledgement that he had committed an offense, and had been caught.
Nor can defendant succeed in his argument that the statement's probative value was substantially outweighed by a risk of undue prejudice. Defendant contends that the statement suggested to the jury that defendant had knowledge of the difference between the two offenses, thereby impermissibly implying that defendant has a criminal history.
Whether the potential prejudice of evidence outweighs its probative value is a determination within the trial court's discretion. State v. Carter, 91 N.J. 86, 106 (1982). The burden of establishing that the evidence should be excluded under this rule rests with the party seeking to preclude its admission. Ibid. On appeal, a trial court's determination on this issue will not be disturbed "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." Ibid.
At the time defendant made the statement, he was not being interrogated. He had been in handcuffs, sitting in a chair for approximately twenty minutes. The statement was voluntarily made and is highly probative of his consciousness of guilt. Indeed, "[d]amaging evidence usually is very prejudicial[,] but the question here is whether the risk of undue prejudice was too high." State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987). It was not error to conclude that any possible prejudice in the form of revealing defendant's prior involvement in criminal activity did not substantially outweigh the statement's high probative value.
Accordingly, defendant has failed to show that the trial court palpably abused its discretion. There was no manifest denial of justice.
In light of our rejection of defendant's first two points, the final point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).