STATE OF NEW JERSEY v. VINCENT SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4270-04T44270-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT SMITH,

Defendant-Appellant.

_______________________________________

 

Submitted January 11, 2006 - Decided January 27, 2006

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-05-2013.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jacqueline E.

Turner, Assistant Deputy Public Defender,

of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Gary A. Thomas,

Assistant Prosecutor, of counsel).

PER CURIAM

Defendant Vincent Smith, also known as Vincent Glasco and Vincent Warner, appeals from a final judgment of conviction and sentence. He was found guilty of fourth-degree theft of movable property contrary to N.J.S.A. 2C:20-3a and sentenced to a term of incarceration for eighteen months. Because the State produced no evidence of the value of the property stolen, we reverse and remand for amendment of the judgment of conviction and reduction of sentence.

Defendant was charged in Essex County Indictment 2004-05-2013 with second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one) and third-degree theft of movable property with a value of more than $500, contrary to N.J.S.A. 2C:20-3a (count two). Defendant waived his right to trial by a jury, and the matter was tried to the court on August 18, 2004.

The judge granted defendant's motion for judgment of acquittal on the robbery charge at the close of the State's case. Defendant did not testify. Based on findings of fact and legal conclusions stated on the record, the judge found defendant not guilty of theft of $110 in cash but guilty of theft of a TV, stereo system and VCR with a value in excess of $200.

We limit our discussion to the evidence relevant to the theft at issue on appeal. Natalie Davis, the owner of the property, testified. On February 9, 2004, when Davis returned to her apartment on Elizabeth Avenue in Newark at the end of her workday, defendant, who was living with her at the time, was in the foyer. He told her he had something to tell her and urged her to come to the kitchen. In the kitchen, defendant started the conversation by admitting that he had been drinking and drugging all day. She asked him what was going on and insisted upon moving to the living room.

When Davis reached the living room, she tried to turn on her lamp, which would not light. When she turned on the overhead light, she saw that her television, VCR and stereo system were missing. Defendant first told her he sold the equipment, and then said he pawned them. He asked for twenty dollars to redeem the items.

Davis asked defendant to leave, but he pushed her into the bedroom. They fought, and Davis ran from the apartment. The police were called, but when they arrived, defendant had left.

Days after this incident, defendant told Davis that he sold the items to a person who lived in the apartment building next to hers. There was no testimony describing the property taken, its value or the amount defendant received for its sale.

The judge found that defendant committed theft of Davis' television, VCR and stereo, which had a value in excess of $200. His findings on the value of the property were as follows:

I can't say with any particularity that this [property] had a value over $500. Depending on how old it was, what condition it was in, all of those things. But, I can certainly say that when you aggregate the stereo, the [television], the speakers, the VCR, that it was at least over $200, no matter what condition it was in.

So I find that the State has proven beyond a reasonable doubt that the defendant is guilty of a fourth-degree crime . . . .

Defendant presents one issue for our consideration on appeal. He argues:

I. THE CONVICTION FOR FOURTH-DEGREE THEFT

SHOULD BE VACATED AS NO PROOF OF THE

VALUE OF THE STOLEN ITEMS WAS EVER

ADDUCED AT TRIAL.

We conclude that the State did not present evidence adequate to support a conviction for theft in the fourth degree. Evidence is sufficient when the entirety of the State's direct and circumstantial evidence, viewed most favorably and given the benefit of all reasonable inferences, permits a reasonable trier of fact to find each element of the crime beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 459 (1967). See also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979). The question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown, supra, 80 N.J. at 592 (quoting Johnson v. Louisiana, 406 U.S. 356, 362, 92 S. Ct. 1620, 33 L. Ed. 2d 152 (1972)).

The value of property taken is "an element of the offense to be proven by proof beyond a reasonable doubt . . . ." State v. D'Amato, 218 N.J. Super. 595, 607 (App. Div. 1987), certif. denied, 110 N.J. 170 (1988). With exceptions based upon certain categories of property and the means of taking that are irrelevant in this case, the grade of a theft offense depends upon the "amount involved." N.J.S.A. 2C:20-2b(1). Where the amount involved is at least $200 but does not exceed $500, the theft is a crime of the fourth degree. N.J.S.A. 2C:20-2b(3). If the amount involved is less than $200, the theft is a disorderly persons offense. Ibid. The term "amount involved" means "the fair market value at the time and place . . . . " N.J.S.A. 2C:1-14m.

In this case there was a complete absence of evidence relevant to the fair market value of the television, VCR and stereo system from which the judge could infer value. There was no evidence as to the date of purchase, purchase price, age or condition of the entertainment equipment taken. While finders of fact are "not expected to ignore what is perfectly obvious, [and may] take full advantage of their collective experience and common sense," United States v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (quotations and citations omitted), a verdict of guilt must be based upon evidence presented and reasonable inferences not speculation.

In the few published opinions of our courts addressing the value of movable property we find no support for the valuation process the trial judge employed in this case. In D'Amato, supra, there was evidence of the amount the defendant received when he sold the victim's jewelry. 218 N.J. Super. at 608. In State v. Gosa, 263 N.J. Super. 527, 537 (App. Div.), certif. denied, 134 N.J. 477 (1993), this court did not discuss the testimony relevant to value in detail but noted that there was adequate evidence to permit a finding of value, including testimony that the stolen police radios did not "depreciate[] substantially as long as they were in good repair." Here there was no evidence to support an inference other than that the equipment had some value. See State v. Vasky, 218 N.J. Super. 487, 492 (App. Div. 1987) (noting that "[s]tatements of fact or opinion [relevant to value] that are not even remotely supported by personal knowledge or experience are not evidence and may not be the basis for an indictment"). That evidence is sufficient to permit a finding of guilt on theft that constitutes a disorderly person offense. See D'Amato, supra, 218 N.J. Super. at 604.

Accordingly, we vacate the conviction for theft in the fourth degree and remand for entry of conviction for theft that constitutes a disorderly person offense and resentencing.

 

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A-4270-04T4

January 27, 2006