June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RYAN GRIGGS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1681.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Fuentes, J. N. Harris and Koblitz.
Defendant Ryan Griggs appeals from his January 19, 2010 judgment of conviction and subsequent sentence for receiving a stolen car, unlawful possession of a weapon and resisting arrest by flight. He asserts that the trial judge erred in denying his motion for a judgment of acquittal on the receiving a stolen car allegation. He further argues that the judge incorrectly charged the jury and imposed an excessive sentence. We find merit in defendant's arguments and therefore dismiss the receiving a stolen car conviction, and reverse and remand the resisting arrest conviction for a new trial. We affirm the conviction and sentence on the remaining charge of possession of a handgun.
On February 26, 2007, an Essex County Grand Jury returned Indictment No. 07-02-00620 charging Brian Williams, Nelson Martinez, and defendant with second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b) and N.J.S.A. 2C:5-2 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four).
On May 14, 2007, an Essex County Grand Jury returned Indictment No. 07-05-1681 charging defendant, Williams, Martinez and Nathaniel Plummer with third-degree theft by receiving a stolen car, N.J.S.A. 2C:20-7 (count one); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count seven); and fourth-degree resisting arrest,*fn1 N.J.S.A. 2C:29-2(a) (count two). Defendant was not charged in the remaining seven counts of the ten-count indictment.
The indictments were consolidated for trial. Defendant and Williams were tried together. Defendant was found guilty only of receiving a stolen car, unlawful possession of a handgun and resisting arrest by flight, counts one, two and seven of Indictment No. 07-05-1681.
The trial evidence revealed the following facts. On the afternoon of April 16, 2006, Marie Jaward's 1996*fn2 gold Nissan Maxima with Pennsylvania license plates was stolen.
At approximately 10:30 a.m. on April 19, 2006, two ambulance company employees heard gunshots in the area of the Baxter Terrace housing complex in Newark. They stopped their vehicle and saw three individuals with their backs turned to them, wearing jeans and black hooded sweatshirts, "backing out" of the Baxter Terrace complex while shooting into the courtyard. The three men jumped into a gold Nissan Maxima with Pennsylvania license plates and drove off.
Shortly thereafter, a Newark Police Department detective arrived at the scene of the shooting, where he observed spent casings and cartridges on the ground, including .40 caliber semi-automatic handgun casings. A shooting victim was discovered at the scene, but was unable to identify the shooters. The police distributed a bulletin describing the Maxima and the three male suspects.
Approximately four hours later, an East Orange police officer spotted the vehicle and activated his overhead lights. The Maxima did not pull over. The pursuit lasted about ten minutes, during which the Maxima ran traffic lights and stop signs. The officer eventually lost sight of the car.
Shortly thereafter, a Newark police officer located the vehicle and, with his lights and siren activated, began to pursue the Maxima. The pursuit lasted until the Maxima crashed into another car.
Four men were in the car. Williams was the driver. All four ran from the scene after the crash. Defendant was the first person to exit the car. He left from the rear driver's side and ran through the parking lot of a nearby Comfort Inn. As he ran, defendant threw a white "balled up" t-shirt over a fence and into the Passaic River.*fn3 After being chased for another forty or fifty feet, an East Orange police officer apprehended defendant. A .40 caliber revolver was recovered from the driver's side of the Maxima's back seat where defendant had been seated. One round was left in the chamber. The gun was sent to the police ballistics lab for testing, where it was discovered to be operable. The lab matched shell casings fired from that handgun to ten of the approximately two dozen shell casings recovered at the Baxter Terrace scene.
Defendant, Williams, Plummer, and Martinez were chased down and arrested. All but Plummer were charged with the shooting at Baxter Terrace. When arrested, defendant was wearing a white shirt and black hooded sweatshirt. His arrest report listed his address as being in the Baxter Terrace complex.
Defendant did not testify or offer any witnesses. On appeal, defendant raises the following issues:
POINT ONE: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND BY IMPROPERLY INSTRUCTING THE JURY ON THE CHARGE OF RECEIVING STOLEN PROPERTY.
POINT TWO: THE TRIAL COURT ERRED BY FAILING TO LIMIT THE "CONSCIOUSNESS OF GUILT" FLIGHT INSTRUCTION AND FAILING TO ADVISE THE JURY THAT IT DID NOT APPLY TO THE CHARGE OF RESISTING ARREST BY FLIGHT.
POINT THREE: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Defendant claims that his motion at the end of the State's case for a judgment of acquittal on the receiving stolen property charge should have been granted because the State's evidence established only that he was a passenger in the Maxima, and not that he was in possession of the car.*fn4
In denying the motion for judgment of acquittal on this charge, the trial judge stated that "it's up to the jury to make a determination with regard to who was driving and who was a passenger." The State, however, presented no evidence that defendant was the driver. Instead, testimony revealed that only Williams was seen driving the car. Witnesses who saw defendant in the car testified that he was sitting in the back seat behind the driver.
When a defendant moves for acquittal at the conclusion of the State's case under Rule 3:18-1, the trial judge must deny the motion if, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). On appeal, a reviewing court applies the same standard. State v. Moffa, 42 N.J. 258, 263 (1964).
Defendant argues that the evidence was insufficient to satisfy N.J.S.A. 2C:20-7 because he was merely a passenger in the car. That statute provides in subsection (a):
A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. . . . "Receiving" means acquiring possession, control or title, or lending on the security of the property.
Possession of a stolen automobile requires intentional dominion and control; a mere passenger is not in possession. State v. McCoy, 116 N.J. 293, 298-300 (1989).
In State v. Moore, 330 N.J. Super. 535, 538 (App. Div.), certif. denied, 165 N.J. 531 (2000), the defendant ran from a stolen car after it crashed into a tree while being pursued by police. The record established that the defendant was not the driver of the car. Ibid. As a result, we held that the State had failed to establish that the defendant was guilty of receiving stolen property. Id. at 540.
With no evidence that defendant was the driver, his motion for a judgment of acquittal on this charge should have been granted. His conviction for receiving stolen property is therefore reversed. Given our decision, we need not consider defendant's argument, raised as plain error pursuant to the standard articulated in State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), that the judge erred by failing to charge the jury that mere presence in the Maxima was insufficient to convict defendant of receiving a stolen car. See State v. Serrano, 53 N.J. 356, 359 (1969).
Defendant also argues that the trial judge's "consciousness of guilt" flight instruction was improper because it was not tied to the specific facts adduced at trial. As a result of this lack of guidance and the potential for confusion, defendant asks that his resisting arrest conviction be reversed.
Fourth-degree resisting arrest takes place where a person, "by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). In charging the jury on resisting arrest, the court stated:
The four elements of th[e] offense are: One, that the officers were Law Enforcement Officers; two, the Law Enforcement Officers were affecting an arrest; three, the Defendant knew or had reason to know the officers were Law Enforcement Officers affecting an arrest; and, four, the Defendant purposely prevented or attempted to prevent the officers from affecting an arrest by flight.
The fourth element the State must prove beyond a reasonable doubt is the defendant purposely prevented or attempted to prevent the officers from affecting an arrest by flight.
The mere departure from a place where a crime has been committed does not constitute flight. The State must prove beyond a reasonable doubt the defendant, fearing that he would be arrested, fled for the purpose of evading that arrest.
After he finished instructing the jury on the counts in the indictment, the judge charged on a "few other definitions," including, over defendant's objection, a separate charge on flight as evidence of "consciousness of guilt":
There have [sic] been some testimony in this case in which you may infer the Defendant fled, shortly after the alleged commission of the crime. The question of whether the Defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight.
If you find the Defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment . . . took refuge in flight for the purpose of evading an accusation or arrest on the charge, you may consider such flight, in connection with all the other evidence in this case, as an indication or proof of consciousness of guilt.
Flight . . . may only be considered as evidence of consciousness of guilty [sic] if you should determine the Defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.
It is . . . for you as judges of the facts to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given to such evidence in light of all the other evidence in the case.
In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). A defendant is entitled to a charge that is accurate and that does not contain prejudicial error. State v. LaBrutto, 114 N.J. 187, 204 (1989). Moreover, courts should often "mold the [jury] instruction in a manner that explains the law to the jury in the context of the material facts of the case." State v. Concepcion, 111 N.J. 373 (1988); see also State v. Robinson, 165 N.J. 32, 42-43 (2000) (explaining that jury instructions should be "'molded' or 'tailored' to the facts adduced at trial . . . in various contexts in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury") (citations omitted); State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff'd, 163 N.J. 140 (2000) (noting that "a trial judge must modify the Model Charge when necessary so that it conforms with the facts, circumstances, and law that apply to the facts being tried"); Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7.
We see problems in both flight charges given by the judge. The
evidence showed two possible flights: the car chase and running from
police after the crash. In the resisting arrest count, defendant was
charged with "purposely prevent[ing] or attempt[ing] to prevent a
Police Officer of the City of East Orange . . . from effecting a
lawful arrest by engaging in flight." This count was read to the jury
as part of the jury instruction on resisting arrest by flight. Since
the indictment referred to an East Orange police officer in the
singular, and one East Orange police officer chased defendant after
the car crash, a logical conclusion is that the flight referred to in
the resisting arrest charge was the post-crash flight.*fn5
It would have been preferable, however, if the judge had
clearly identified which flight he was referencing in the resisting
arrest jury charge, especially because the East Orange police were
involved in the car chase as well.
Because of the potential for prejudice and its marginal probative value, where evidence of flight as consciousness of guilt is admitted, the court must instruct the jury carefully regarding the inferences the jury may draw from the evidence. State v. Mann, 132 N.J. 410, 420 (1993). In his general flight charge, the judge referred alternatively to "after commission of the crime," "the charge involved in the indictment," "the charge," and "the offense charged in the indictment." He did not tie the instruction to a specific offense nor indicate whether he was referring to the flight of the car, which would be attributable to Williams as the driver,*fn6 or the flight on foot after the crash. This lack of specificity in the flight charge was confusing and, by repetition, unduly emphasized the flight element of resisting arrest. Thus, because the jury was left without any judicial guidance on the proper context in which to consider the charge of flight as consciousness of guilt, we are constrained to reverse defendant's conviction of resisting arrest and remand for a new trial on that charge.
Finally, defendant argues that his sentence was excessive. Pursuant to our reversal of the two counts addressed substantively in this appeal, the only sentence we need consider was that imposed for possession of a weapon.
Defendant had been arrested thirteen times and had one prior indictable conviction. The judge found the following aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), the extent of his prior criminal record and the seriousness of the offenses for which he had been convicted, N.J.S.A. 2C:44-1(a)(6), the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), and his use or possession of a stolen vehicle while committing the crime or in flight thereafter, N.J.S.A. 2C:44-1(a)(13).*fn7 The judge found no mitigating factors. He concluded that the aggravating factors predominated and sentenced defendant to the maximum of five years on the third-degree unlawful possession of a weapon conviction.*fn8
Although the State concedes that aggravating factor (13) is an improper factor when sentencing for receiving a stolen car, the factor is appropriate in sentencing defendant on the weapons offense because defendant used the stolen car for transportation while in possession of the firearm.
The sentence of five years for possession of the handgun was not manifestly excessive. The judge had a "feel for the case" from observing the trial. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). As our Supreme Court recently reaffirmed, "when '[trial judges] exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court balances the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Id. at 608.
We affirm the conviction and sentence for possession of the handgun; dismiss the conviction for possession of the stolen Maxima; and reverse the conviction for resisting arrest by flight and remand for a new trial on this charge as well as to correct the judgment of conviction to reflect the judge's finding of aggravating factor (13).
Affirmed in part, reversed in part and remanded for a new trial. We do not retain jurisdiction.