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State of New Jersey In the Interest of K.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 29, 2012

STATE OF NEW JERSEY IN THE INTEREST OF K.K., JUVENILE-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-703-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 19, 2012

Before Judges Fisher and Grall.

Based on his role in an incident involving an attempt to steal a tire and its rim and the successful taking of the lug nuts, K.K. was charged with juvenile delinquency on allegations that he engaged in conduct that would, if he were an adult, constitute attempted third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1, and three disorderly persons offenses - theft, N.J.S.A. 2C:20-3a, possession of burglary tools, N.J.S.A. 2C:5-5, and possession of marijuana, N.J.S.A. 2C:35-10a(4).

K.K. was tried to the court, and the judge adjudicated him delinquent of attempted theft and theft but acquitted him of the other charges. The judge then entered an order of disposition placing K.K. on probation for five months and requiring him to perform twenty-five hours of community service, refrain from contacting the victim, attend school and write a book report. In addition, the court imposed two $30 VCCB assessments and a $15 LEOTEF assessment. Although the complaint alleged attempted theft in the third-degree, the order of disposition indicates the judge adjudicated him delinquent for attempted theft in the fourth-degree.

On appeal K.K. presents one argument:

THE JUVENILE'S ADJUDICATION OF DELINQUENCY IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO OFFER PROOF BEYOND A REASONABLE DOUBT THAT THE JUVENILE EITHER COMMITTED A CRIME OR WAS AN ACCOMPLICE TO ANY CRIME.

We agree that the evidence was inadequate to support these adjudications, and vacate the order of disposition. The evidence is described below.

At about 9:00 p.m. on an early October evening, the resident of a home in Linden, Jorge Suarez, saw a Ford Expedition enter his driveway. Suarez watched while one male got out of the Expedition and used a jack to elevate his Nissan Pathfinder and then work to loosen the lug nuts on one of the tires. Suarez went outside and confronted the thief, who told him to take it easy. Another man got out of the front passenger-side door of the Expedition. The intruders removed the jack and left in the Expedition with three of the five lug nuts.

Heriberto Rodriguez, a neighbor of Suarez who was walking his dog, saw the incident and called the police. While Rodriguez was still on the phone with the dispatcher, the Expedition was stopped by Officer Javier Perez of the Linden Police Department. Upon hearing a dispatch about the incident, Perez saw an Expedition matching the description turn off Park Avenue and onto St. George/Rahway Avenue. Reporting his intention to follow the Expedition, Officer Perez did so for about a minute and then stopped it. At that point, the Expedition was seven to eight blocks from the street where the incident occurred. When Perez stopped the car, K.K. was seated in the front passenger seat. K.K.'s cousin, A.K., was driving, and another young man, J.G., and K.K.'s brother, W.K., were in the backseat. While removing the occupants, Perez saw a "blunt" on the backseat floor and lug nuts on the backseat.

Suarez and Rodriguez were driven separately to the site of the stop, which was about one block away from a Wendy's on St. George/Rahway Avenue. The Wendy's was further up the avenue than the place where the Expedition was stopped. Suarez identified A.K. and J.G. as the men he had seen in his driveway, and Rodriguez identified J.G. Neither could identify K.K. or W.K.

The State did not present any evidence to establish the value of the tire or rim on Suarez's Pathfinder or the value of the lug nuts.

K.K. testified and denied being in the Expedition when it pulled into Suarez's driveway. According to him, he and W.K. had just ordered food at the Wendy's when they spotted A.K. traveling in their direction. A.K. made a U-turn, picked them up in the Wendy's parking lot and agreed to take them home. They had only traveled a couple of blocks when Perez stopped them.

"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). The State also must meet that standard in a proceeding to establish juvenile delinquency based on a child's commission of acts that would constitute a crime if the child were an adult. Id. at 366-67, 90 S. Ct. at 1073-74, 25 L. Ed. 2d at 375-77.

In this case, the State's failure to present any evidence on the value of Suarez's tire and rim requires us to vacate K.K.'s adjudication for attempted theft. It is well-settled that a person may not be convicted of an attempt to commit a disorderly persons offense. N.J.S.A. 2C:5-1a (providing that a person may be convicted of "an attempt to commit a crime");

N.J.S.A. 2C:1-4a (defining crime to include crimes that the Code designates as being of the first, second, third or fourth degree); see State v. Clarke, 198 N.J. Super. 219, 225-26 (App. Div. 1985) (holding that the Code does not penalize an attempt to commit a disorderly persons offense). Theft is a disorderly persons offense unless the State proves a fact such as value of at least $200 or another circumstance enumerated in N.J.S.A. 2C:20-2b(1)-(4) that elevates the theft to a crime of the second, third or fourth degree. See State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) (holding that value is an element of theft that the State must prove at trial). Because the State failed to produce any evidence of value and K.K. was tried for an act of attempted theft based on a value in the third-degree range, K.K.'s adjudication for attempted theft must be vacated due to the State's failure to meet its burden of proof.

We turn to consider whether the State presented adequate evidence to support the adjudication for theft of Suarez's lug nuts, which were found in the backseat of the of the Expedition. Theft of movable property requires proof that the accused "unlawfully t[ook], or exercise[d] unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3a.

Neither the judge's findings nor the State's evidence support K.K.'s adjudication for theft of the lug nuts. Crediting Officer Perez's testimony and the testimony of Suarez and Rodriguez, the judge stated: "These witnesses provide[d] sufficient proof of the guilt of [A.K.] and [J.G.]." The judge then concluded that the question with respect to K.K. was "whether or not [K.K. was] in the car when it [was] parked in the victim's driveway and involved in the attempted theft." The judge noted that he did not believe K.K.'s account of being elsewhere and explained why. On that basis, the judge concluded that K.K. was in the Expedition while it was in Suarez's driveway. We accept that determination because it is are supported by sufficient evidence and the judge's credibility assessment. State v. Locurto, 157 N.J. 463, 473-74 (1999).

Where the judge erred was in finding that defendant's presence in the car was sufficient to prove that he acted as an accomplice to the theft. The judge found that K.K. was in the car, and on that basis inferred that its occupants planned the theft together and were there to carry it out. He further stated, "I find sufficient proof to believe beyond a reasonable doubt that this juvenile was with three others during the course of the theft of the lug nuts and the attempted theft of the tire or tire rims."

Because the judge did not find, and could not have found on this record, that K.K. took the lug nuts or exercised any control over them, the judge's finding of liability for that theft can only rest on a determination that defendant was an accomplice in its commission. The judge, however, made no finding as to whether K.K. had acted with purpose to aid in the theft and with the purpose to deprive Suarez of the lug nuts. These are essential elements of complicity in a theft. See N.J.S.A. 2C:2-6c(1); State v. Whitaker, 200 N.J. 444, 457-58 (2009).

The more fundamental difficulty in this case was that there was no evidence of K.K.'s complicity, other than his presence in the car. Our courts have previously addressed the limited significance of presence at the scene of a crime to accomplice liability. State v. Dale, 271 N.J. Super. 334, 338-39 (App. Div. 1994). Thus, we can simply iterate the explanation provided in the Model Jury instruction:

Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed.

While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same.

It depends upon the totality of the circumstances as those circumstances appear from the evidence. [Model Jury Charge (Criminal), "Liability for Another's Conduct - Accomplice" (1995).]

In this case, the judge pointed to no other circumstances justifying an inference of K.K.'s complicity based on his presence in the Expedition. Moreover, we have carefully reviewed the record and found none. The only information that we have is that K.K. was in a car with his cousin, his brother and another young man. In our view, that proof was inadequate to establish K.K.'s complicity in the theft of the lug nuts beyond a reasonable doubt.

Reversed and remanded for entry of an order vacating the adjudication.

20120629

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