STATE OF NEW JERSEY v. AADO KOMMENDANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2101-05T12101-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AADO KOMMENDANT,

Defendant-Appellant.

_______________________________

 

Submitted September 26, 2006 - Decided October 26, 2006

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 05-083.

Jeff Thakker, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After trial de novo in Superior Court, R. 3:23-8(a), defendant Aado Kommendant appeals his conviction on two complaints of theft, N.J.S.A. 2C:20-3(a). We conclude the evidence presented does not support the Law Division's finding of theft and, therefore, we reverse.

Since 1998, defendant was the head coach of the NJSIAA Parochial "A" Championship, St. John Vianney High School (SJVHS) varsity softball team. Defendant was not otherwise a faculty member of the school. In the summer of 2003, at defendant's suggestion, the parents and players of "Vianney Softball," a summer league softball team coached by defendant, agreed to commence weekend fundraising efforts to purchase a breakaway portable PVC outfield fence for year-round use.

Monies collected were deposited into a bank account titled to "Vianney Softball" at defendant's address. Defendant was the sole signatory on the account. In March 2004, prior to the softball season, defendant purchased the fence for $3,184.96, using monies raised during weekend fundraising efforts and deposited into the "Vianney Softball" account. The fence was erected on the high school field by the players, their parents and defendant. Defendant expressed his view, at the municipal court trial, that the fence belonged to the players, whose outside efforts afforded its purchase and installation.

During spring 2004, tension developed between defendant and the SJVHS principal, Joseph P. DeRoba. Defendant testified that one area of friction centered on what he perceived was DeRoba's unwillingness to prevent future vandalism of the softball team's equipment, including the new fence, which had been knocked down multiple times, and on one occasion, broken.

On June 4, 2004, DeRoba told defendant he desired to move the fence to avoid sprinkler stains when the school maintenance staff watered the outfield grass. Defendant expressed the need to use the fence in preparation of the State Championship game on June 7, 2004. On June 6, 2004, after practice, defendant, the players and their parents removed the fence from the school field, relocating it to a garage. Defendant's witnesses consistently testified about concern for the team's equipment and SJVHS's past failure to prevent its damage, stating the fence was "removed and placed in safekeeping until the following season."

When confronted by DeRoba, defendant said he took the fence and would return it at the commencement of the 2005 season. Defendant again expressed to DeRoba his concerns about prior vandalism to the team's equipment, asking DeRoba to guarantee that the fence would be secured if kept at the school. DeRoba did not provide that "guarantee," so defendant did not agree to return the fence. DeRoba issued a written directive to defendant to return the fence by June 14, 2004. Because the fence was not returned, DeRoba instructed the school's resource officer Cpl. David Tuschmann, who was a Holmdel juvenile police officer, to file a criminal complaint for theft of the fence.

The complaint signed by Tuschmann on June 30, 2004, alleges the fence belonged to SJVHS and had a value of "$4,500." Defendant returned the fence on July 9, 2004, undamaged, one day after DeRoba informed defendant his coaching contract would not be renewed.

DeRoba also sought from defendant the return of five softball trophies. DeRoba acknowledged defendant did not state he had the trophies, but the two reached "a gentleman's agreement" that the trophies would be returned when the team's celebrations and banquet ended. Months passed. On April 12, 2005, defendant returned one trophy. A parent testified that, in spring 2005, she approached the SJVHS assistant principal explaining she had the trophies and wanted to return them. The parent was advised to wait as he "wanted to follow the proper channels." A second criminal complaint alleging theft of the trophies was issued on April 19, 2005. The remaining four trophies were delivered to the Holmdel police department on April 21, 2005, by a team parent, who was asked by defendant to return the trophies when she received them.

After trial, the municipal court found no distinction between the summer softball team and the SJVHS team, reasoning that "[p]resumably their fundraising efforts were presented as a school function," and "regardless of the loose control of the clubs' and teams' accounts, the money was given to finance a school function." Thus, the municipal court judge concluded "St. John Vianney High School owned the fence" and "[defendant's] statement that the School did not buy the fence, 'the girls bought it[,]' is analogous to declaring the workers in a factory to be the owners of the products they make." The municipal court found defendant guilty of theft of the fence, declaring the "statute contains no requirement that the deprivation of the property be intended to be permanent."

As to the trophies, the municipal court amended the complaint, R. 7:14-2, and found defendant guilty of the downgraded charge of theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9, as defendant failed to return the trophies when requested.

Defendant raises numerous issues on appeal. Our discussion centers on the arguments challenging the sufficiency of the State's proofs; thus, we need not address the merits of defendant's Points I, II, III and VII. We also need not reach defendant's motion to supplement the record.

The State must establish each element of the offense alleged beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and the trial court must make specific findings of fact regarding each element. See State v. Locurto, 157 N.J. 463, 470 (1999). While the judge need not "articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations on each and every witness," effective appellate review requires specific findings regarding the elements of the offense. Id. at 475. If the judge is mistaken as to the elements, then the adjudication cannot be affirmed. Id. at 471.

Theft of movable property occurs when a person "unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3a. Our review of all evidence discloses the State failed to meet its burden to prove SJVHS was the owner of the fence. No indicia of ownership of the fence by SJVHS was offered, other than the mere fact that defendant, the players and their parents erected it on the school's property. The evidence establishes that the money was raised outside of school at a time when the varsity softball team was not yet chosen for the 2004 season; that this money was placed in an account controlled by defendant, which he asserted contained the fruits of the summer team's fundraising efforts; that defendant ordered and paid for the fence, which was picked-up by a parent at defendant's request; and that defendant, the summer players and their parents erected the fence. SJVHS had no involvement in any phase of this transaction, a fact evidenced by the overstatement of the fence's value expressed in the theft complaint and by the fact that SJVHS had no records of its purchase.

Our analysis of the record discloses no evidence supporting the municipal judge's assumption that "[p]resumably [the players'] fundraising efforts were presented as a school function," rendering his conclusion that "St. John Vianney High School owned the fence" erroneous. See State v. Castagna, 387 N.J. Super. 598, 604-05 (App. Div. 2006).

Additionally, the State failed to prove beyond a reasonable doubt that defendant's purpose in removing the fence was to deprive SJVHS of the movable property. N.J.S.A. 2C:20-1. DeRoba admitted to defendant that he could not assure the fence's safety during the off-season. At the time of the fence's removal, defendant expected to return as the 2005 softball coach. The evidence presented by all witnesses supports the fact that the fence was removed by defendant for safekeeping until the 2005 season. Further, when defendant's contract was not renewed, he returned the fence the very next day. Defendant did not withhold the fence "permanently or for so extended a period as to appropriate a substantial portion of its economic value . . . ." Ibid.

Regarding the trophies, N.J.S.A. 2C:20-9 provides, in pertinent part:

A person who purposely . . . retains property upon agreement or subject to a known legal obligation to make specified . . . disposition . . . is guilty of theft if he deals with the property obtained as his own and fails to make the required . . . disposition.

 
[N.J.S.A. 2C:20-9.]

 
Under the statute, "the initial taking [of the property] is authorized but at a later time a theft occurs when the property is converted to the possessor's own use." State v. Dandy, 243 N.J. Super. 62, 64-65, (App. Div. 1990). Here, the State failed to establish, beyond a reasonable doubt, that defendant had the trophies, and that he intended to deprive SJVHS of them and convert them for his own use. See State v. Altenburg, 223 N.J. Super. 289, 297 (App. Div. 1988). The evidence shows defendant returned the one trophy in his possession prior to the filing of the complaint, while the other four trophies were in the possession of team members or one parent. Thus, our review discloses the required elements of proof for conviction under N.J.S.A. 2C:20-9 are not satisfied.

Reversed.

(continued)

(continued)

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A-2101-05T1

October 26, 2006