STATE OF NEW JERSEY v. SHEENA SHANKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1805-08T41805-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHEENA SHANKS,

Defendant-Appellant.

____________________________________

 

Submitted April 27, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-0986.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sheena Shanks appeals her conviction by a jury on charges arising from police seizure of crack cocaine from the pantry in her residence. We affirm.

On March 21, 2006, Atlantic City police executed a search warrant for defendant's residence in Stanley Holmes Village, a public housing complex. Defendant and her nine-year-old daughter were the only persons present in the residence. On a high shelf in a pantry, the police found a popsicle box that contained only a clear plastic bag with rock cocaine. Laboratory testing confirmed that the substance was cocaine and weighed slightly more than three-quarters of an ounce.

The police also found an envelope containing marijuana on top of a dresser in defendant's bedroom. Laboratory analysis later confirmed that the substance was marijuana and weighed 4.33 grams. In further searching the bedroom, the police found a glass bowl in a box in the closet, and it contained burnt marijuana residue.

Defendant was indicted on four counts of a five-count indictment. Count two charged third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); count three second-degree possession of more than one-half ounce of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); count four third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and count five second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. In addition, defendant was charged with disorderly persons possession of marijuana, N.J.S.A. 2C:35-10a(4), and disorderly persons possession of drug paraphernalia, N.J.S.A. 2C:36-2.

In her opening statement at trial, defense counsel argued that defendant had no knowledge of the cocaine in the pantry, and that her involvement on these charges was the result of an unfortunate relationship with an "unsavory" boyfriend, Donald Byard, who was present in her home on the morning before the search warrant was executed.

The State's case consisted primarily of the testimony of the police officers who conducted the search and a police expert who testified about the means and methods of distribution of crack cocaine in rock form.

The State also called as a witness a senior property manager for the Atlantic City Housing Authority. Two client worksheets kept by the Housing Authority were admitted in evidence without objection. From the worksheets, the witness testified that defendant and her daughter were the only authorized residents of the apartment listed on the lease for 2006 and a third child was added for 2007. Byard was not listed as an authorized occupant. On cross-examination, the witness testified that other people could be living in residences at the Stanley Holmes complex, but they would be unauthorized occupants if they stayed for more than fourteen days. The witness mentioned that defendant's rent was $277 per month.

In the defense case, defendant called an Atlantic City Police officer to testify about another search of defendant's residence on November 1, 2005, about four months before the search resulting in the charges in this case. The officer testified that defendant consented to the search after she was told that the police had arrested Byard in possession of a handgun. She pointed out the location of an oatmeal box in a cabinet above the stove that contained about sixty-six grams of crack cocaine and a large amount of money. Defendant was not charged with any crimes after the November 2005 seizure of cocaine.

Defendant testified that Byard was her boyfriend until she broke up with him in January 2006. In November 2005, she was aware that he had been selling drugs and she accepted his financial help, knowing it was the proceeds of drug sales. She testified that after Byard's arrest and the police search in November 2005, she had warned Byard not to jeopardize her home and family by keeping drugs in the house. She said she routinely checked his pockets to make sure he was not bringing drugs into the house.

Defendant testified that Byard no longer stayed with her after January 2006. Still, she spoke to him on the phone every day, and he continued to support her financially. He also visited her regularly, including picking up her daughter from school. On cross-examination, she said it was acceptable for her to receive his financial assistance, despite knowing it was drug sale proceeds, because she was pregnant with his child.

Defendant also testified that, one day before execution of the search warrant, she cleaned the pantry and put the popsicle box on a high shelf to prevent her daughter from eating too many popsicles. She said the box contained push-up, liquid popsicles, not cocaine. She said that Byard brought her daughter home from school on the afternoon of March 21 and stayed for a while in the kitchen helping her with homework. Defendant went upstairs because her pregnancy made her ill. She denied knowing that there was cocaine in the pantry at the time the search warrant was executed that night.

Defendant also denied knowing that the envelope on her dresser contained marijuana. She said that Byard had used the envelope a few weeks earlier for a fund-raising sale at her daughter's school. She admitted that the glass bowl in the closet belonged to her and also admitted that she had smoked marijuana in the past, but she claimed she had not used the bowl for a long time. Contradicting the testimony of Detective James Armstrong that a strong odor of burnt marijuana was noticeable in the residence when the police first entered to execute the search warrant, defendant denied she or anyone else had smoked marijuana before the police entry.

The jury deliberated for almost three hours on the first day of deliberations and asked several questions, which were answered by the judge following brief consultation with counsel. On the following day, the jury returned a verdict of guilty on all four charges in the indictment. After excusing the jury, the court also found defendant guilty of the disorderly persons offenses of possession of marijuana and possession of narcotics paraphernalia.

In imposing sentence, the court merged count two, possession of the cocaine, into the other three counts that charged possession with intent to distribute, including in a school zone and near public housing. Without explanation of its reasoning, the court found four mitigating factors and only one aggravating factor to be applicable to defendant's sentence. It then downgraded the sentencing range for the second-degree charges to a third-degree range, stating that defendant did not have a prior criminal record.

The court sentenced defendant on each of counts three, four, and five to concurrent sentences of four years in prison. On the school zone count, the court imposed a mandatory period of parole ineligibility of three years. On the marijuana and paraphernalia charges, the court sentenced defendant to concurrent terms of thirty days in jail. Money penalties and a driver's license suspension were also imposed. On all counts and charges of conviction, the total penalty payable under N.J.S.A. 2C:35-15, the Drug Enforcement and Demand Reduction (DEDR) penalty, was $6,000.

On appeal, defendant raises the following arguments:

POINT I THE TRIAL JUDGE'S IMPROPER ADMISSION OF

OTHER CRIMES EVIDENCE COMBINED WITH HIS ERRONEOUS LIMITING INSTRUCTIONS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. ADDITIONALLY, UNANIMITY MAY NOT HAVE BEEN REACHED. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART I, PARS. 1, 9 AND 10 (Objection Not Raised Below).

POINT II THE TRIAL JUDGE IMPROPERLY ALLOWED TESTIMONY REGARDING DEFENDANT'S HOUSING RECORDS BEYOND WHO WAS A PERMITTED OCCUPANT AND ADMISSION INTO EVIDENCE OF THOSE RECORDS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

POINT III THE TRIAL JUDGE FAILED TO PROVIDE THE JURORS WITH A REQUESTED READBACK STRONGLY INVOLVING THE CREDIBILITY ISSUES IN VIOLATION OF DEFENDANT'S RIGHTS. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

POINT IV THE DRUG ENFORCEMENT AND DEMAND REDUCTION PENALTIES SHOULD BE REDUCED IN LIGHT OF THE AMENDMENT TO N.J.S.A. 2C:35-15 (a). (Not Raised Below).

All of defendant's points on appeal are subject to the plain error standard of review because none was raised before the trial court. Rule 2:10-2 provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Branch, 182 N.J. 338, 353 (2005); State v. Brims, 168 N.J. 297, 306 (2001); State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000). Here, we find no error in the record of proceedings in the trial court that warrants our intervention.

Defendant contends that admission of evidence before the jury about marijuana and the glass bowl was contrary to N.J.R.E. 404(b), which addresses evidence of other crimes, wrongs, or acts. At trial, defendant did not object to admission of that evidence. After one of the officers testified about finding the marijuana and the glass bowl, the court gave a detailed limiting instruction to the jury that the evidence of marijuana and drug paraphernalia in the residence was only admissible on the issue of whether defendant also had knowledge of the cocaine found in the pantry. In its final jury charge, the court again repeated a similar limiting instruction.

In State v. Cofield, 127 N.J. 328, 338 (1992), and State v. Marrero, 148 N.J. 469, 483 (1997), the Supreme Court established a four-part test for determining whether other-crimes evidence is admissible. To be admitted: 1) evidence of the other crime or act "must be admissible as relevant to a material issue"; 2) "[i]t must be similar in kind and reasonably close in time to the offense charged"; 3) "[t]he evidence of the other crime or act must be clear and convincing"; and 4) "[t]he probative value must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338. This test was recently re-confirmed in State v. P.S., ___ N.J. ___, ___ (2010) (slip op. at 39-40).

Other-crimes evidence can be admitted to prove any fact in issue, but the issue must be genuine and the other-crime evidence necessary for its proof. State v. Stevens, 115 N.J. 289, 301 (1989). Where other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the "probative/prejudice" balancing under N.J.R.E. 403. Marrero, supra, 148 N.J. at 482.

In this case, we agree with the State that evidence of marijuana on the bedroom dresser and paraphernalia in the closet was relevant to the issue of defendant's knowledge of illegal drugs in the house. See Wymer v. Commonwealth, 403 S.E.2d 702, 707 (Va. Ct. App. 1991) (evidence of marijuana admissible to prove defendant's knowledge of cocaine in her residence).

Defendant argues that evidence of one kind of illegal drug is not probative of whether defendant had knowledge of another drug stored elsewhere in the residence. We need not decide that such evidence is admissible in every case to prove knowledge of the drugs charged. We conclude it was admissible in this case because of the defense presented.

The defense claimed in its opening statement that defendant did not know about the cocaine in the pantry, and defendant testified later that she did not know that the popsicle box contained cocaine. She also testified that she did not know there was an envelope containing marijuana on her dresser. She testified that the November 1, 2005 arrest of Byard and search of her home frightened her about the risk of losing her home if the police found illegal drugs there. She stated she did not allow Byard to bring drugs into the home after November 2005.

Evidence of the marijuana on the dresser was relevant to refute defendant's explanation. Although she claimed that she searched Byard's pockets to make sure he did not have drugs, there was an envelope containing marijuana within sight in her bedroom. Therefore, her disclaimer of knowledge about cocaine in the pantry was not credible in the context of the defense presented, especially since she had known about a similar quantity of cocaine kept in an oatmeal box in a kitchen cabinet just four months earlier.

Applying the Cofield/Marrero factors, the possession of marijuana was relevant to a material issue, defendant's knowledge of illegal drugs in her house. Possession of the marijuana was contemporaneous with possession of the cocaine, and both were similar in the sense that they were illegal substances that jeopardized defendant's lease and the security of her home. The evidence was clear and convincing. It was presented through the unchallenged testimony of the officers who conducted the search. Finally, the probative value of marijuana evidence was not outweighed by a risk that the jury would be prejudiced against defendant and view her as a person of bad character. The marijuana evidence satisfied the requirements of the four-part Cofield/Marrero test.

We reject without extensive discussion, Rule 2:11-3(e)(2), defendant's argument that evidence of marijuana and the glass bowl allowed the jurors to reach a verdict without unanimity. Possession of marijuana or narcotics paraphernalia was not an element of the cocaine charges that the jury unanimously had to find were proven beyond a reasonable doubt.

We also reject defendant's contention that the limiting instructions given by the trial court were confusing because they used the term "and/or" in referring to the two separate charges of possession of marijuana and possession of drug paraphernalia. The limiting instructions were clear in directing the jury to use that evidence only for its permissible purpose and requiring the jury first to conclude that defendant knowingly possessed one or both of those items before considering whether that possession had any probative value on the disputed issue of knowledge of the cocaine.

"Ordinarily, the admissibility of other-crime evidence is left to the trial court's discretion, and its decision is reviewed under an abuse of discretion standard." State v. Darby, 174 N.J. 509, 518 (2002). Here, there was no plain error and no abuse of discretion in admission of evidence about marijuana.

Next, defendant contends that the Housing Authority documents were unduly prejudicial because the jury might fault her for receiving a subsidy from the government in payment of her rent. Defendant made no objection at trial, and the testimony of the property manager was brief and focused on what persons were authorized to live in defendant's residence. Neither the parties nor the court viewed the Housing Authority evidence as raising an issue under N.J.R.E. 404(b). There was no suggestion in the testimony or arguments of counsel that it proved a crime or bad act on the part of defendant. In fact, the only wrongdoing that was mentioned was that defendant would be violating federal law with reference to her lease if she lied about who were occupants of her residence. The State did not imply that defendant had lied in that respect and, instead, suggested that the lease was evidence that Byard did not have full access to the home.

With the use of the housing documents, the State attempted to show that Byard was at best a guest and not a permanent resident of the home. Thus, it was less likely that he would choose to hide cocaine with a street value of $2,100 in defendant's pantry without her knowledge. There was no plain error in admission without objection of evidence about Byard not being listed on the lease and other housing documents.

Defendant also contends that the trial court erred in failing to read back testimony of Detective Armstrong after the jury asked a question during deliberations about the smell of burnt marijuana. The jury, however, did not ask for a readback of any testimony.

About one hour after beginning deliberations, the jury sent a note to the judge asking four specific factual questions, in addition to requesting repetition of the definitions of possession and distribution. The four questions were: 1) "When did Mr. Byard go to prison?" 2) "Was she home at all times when Mr. Byard brought the daughter home?" 3) "Can we ask if either Sheena or Mr. Byard had any paying jobs?" and 4) "Was the evidence of smell of marijuana in any police reports?" The parties agreed that no evidence had been presented with respect to the first three questions. As to the fourth, the court mentioned Detective Armstrong's testimony that he had not included the smell of marijuana in his report.

Without objection, the court answered the jury simultaneously on all four questions that it should rely on its recollection of the evidence and that the case could not be re-opened for the purpose of answering questions that were not part of the evidence presented. Defendant now argues that the court's response to the jury neglected to provide the evidence the jury was seeking by reading back Armstrong's testimony.

We find no error in the court's response to the jury question. This was a two-day trial. Armstrong's testimony about smelling marijuana was given one day before deliberations and the jury's questions. His cross-examination focused on the absence of any reference in his police report to smelling burnt marijuana. Armstrong testified that the omission was an oversight. In asking about smell of marijuana "in any police reports," the jury was apparently asking whether any other police officers who participated in the search had indicated in their reports that they smelled marijuana upon entering the residence.

Defendant had testified that as many as ten officers had entered her home during the search. Several of the officers had testified at trial. Armstrong's testimony about the smell of marijuana and the absence of a reference in his police report were fresh in the jury's mind, and the jury seemed to want a comparison with the perception and reporting of other officers. Because evidence of the contents of other police reports on that subject had not been covered in any other testimony, the court correctly responded that it could not re-open the case to answer factual questions that were not part of the trial record.

Finally, defendant argues that an amendment to N.J.S.A. 2C:35-15a(2)(a) enacted after defendant was sentenced should be applied to reduce the DEDR penalty from the $6,000 imposed to $2,000. The amendment permits the sentencing court to impose only the highest DEDR penalty for one count on a person being sentenced on more than one drug offense. The amendment states that the court may, in its discretion, impose the lesser penalty if it finds that "(a) the imposition of multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity; and (b) the imposition of a single penalty would foster the defendant's rehabilitation." Ibid. The State responds that the amendment did not apply to defendant's sentence. It argues alternatively that, even if the amendment should apply retroactively to sentences imposed before its effective date, defendant has not made the requisite showings. We agree.

As an appellate court, we do not make initial discretionary decisions about the appropriate sentence to be imposed. We will not consider a ground or argument raised for the first time on appeal in the absence of jurisdictional grounds or matters of great public interest. See State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); State v. Krause, 399 N.J. Super. 579, 583 (App. Div. 2008).

Affirmed.

 

The presentence investigation report states that the search warrant was based on probable cause established by two controlled purchases of heroin by a confidential police informant from a man answering the door at defendant's residence. This information was not presented at defendant's trial. The jury was instructed not to speculate about or discuss the reason for issuance of the search warrant.

The first count of the indictment charged another individual with possession of a controlled dangerous substance identified as "Suboxone," but the record on appeal contains little information about the relationship of that individual and the charge in count one to the charges brought against defendant in the remainder of the indictment. At trial, there was passing reference to the police arresting an unnamed individual near defendant's back door who had a prescription drug in his possession. The charge in the first count played no role in this case.

In her testimony, defendant avoided blaming Byard directly for stashing the cocaine in her pantry. She said she did not know how the cocaine got there.

Defendant has not made any argument regarding whether the sentencing court correctly imposed concurrent sentences rather than merging all the cocaine counts. See State v. Dillihay, 127 N.J. 42 (1992); State v. Brana, 127 N.J. 64 (1992); State v. Gonzalez, 123 N.J. 462 (1991). Merger would affect the DEDR and other money penalties imposed.

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A-1805-08T4

August 16, 2010