STATE OF NEW JERSEY v. DONALD T. RIVERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3863-07T43863-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD T. RIVERS,

Defendant-Appellant.

________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-06-2299.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Camden County grand jury filed Indictment No. 06-06-2299, charging defendant Donald T. Rivers with third-degree theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9. After trial, the jury returned a guilty verdict. The court imposed a four-year probationary sentence and required defendant to perform 100 hours of community service, twenty-five hours each year. Applicable fines and penalties were imposed along with restitution of $9404 payable at a rate of $210 per month to Hertz Car Rental.

On appeal, defendant argues:

AS THERE WAS NO RATIONAL BASIS FOR THE CHARGE REGARDING A MONETARY THEFT VERSUS FAILURE TO DISPOSE OF THE VEHICLE AS PER THE RENTAL AGREEMENT, AND AS THE STATE PRESENTED NO EVIDENCE IN SUPPORT OF THIS CHARGE, A JUDGMENT OF ACQUITTAL MUST BE ENTERED AS DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED. (Not Raised Below).

After carefully analyzing the record in light of the written arguments advanced, we affirm.

These are the facts presented to the jury. On December 17, 2005, defendant executed a one-day rental agreement to lease a 2005 Chevy Tahoe from a Hertz Car Rental (Hertz) agency adjacent to the Philadelphia Airport. The one-day rental cost was $94; thereafter, the daily cost was $166.23. The rental period is stated in the rental contract. If a customer desires to extend the rental period, a new rental agreement must be executed.

Frederick Gaio, an employee in the vehicle control department, explained the procedure Hertz follows when a vehicle is not returned, as required by the contract. First, the customer is called. When that effort fails, correspondence is sent requesting return of the vehicle. Two certified letters were sent to defendant at the Philadelphia address he provided on the rental contract. On February 17, Hertz notified the Philadelphia Police Department that the vehicle, valued at $31,634, was stolen.

On April 7, 2006, Cherry Hill Police Department Patrolman Charles Smith observed a Chevy Tahoe ignore a stop sign. Smith followed the vehicle and checked its registration in the mobile data computer. Smith learned the vehicle was stolen and, after notifying back-up, initialed a felony stop. As the driver of the reportedly stolen vehicle, defendant was arrested along with Dana Rivers (Rivers), his wife, who was a passenger.

Rivers did not execute the initial rental agreement but testified that on December 19, 2005, defendant had asked her to extend the lease for six months. She did not follow through on his request because she and defendant had a "huge altercation." Rivers never told defendant she had not extended the rental agreement and believed Hertz would come and take the vehicle. Thereafter, Rivers assumed defendant extended the rental agreement himself as his credit card was charged for fourteen days following the initial rental period.

At the close of evidence, the court instructed the jury on each element of the offense charged. Noting the State has the burden to prove theft, the trial judge stated:

Now members of the jury, the State also must prove to you beyond a reasonable doubt -- if you find the defendant guilty of the crime of theft, the State has to prove to you also beyond a reasonable doubt what is the item that is the subject of the theft. In other words the State has to prove to you either that this was a motor vehicle or they have to prove to you the value of the theft.

In his single point on appeal, defendant asserts for the first time the judge erred in the jury charge by not molding his instruction to comport with the State's theory of the case. Defendant argues the charge suggested the theft was monetary in nature, not the failure to return the vehicle to Hertz by December 18, 2005. Defendant claims that because no value was proven at trial, he must be acquitted. Suggesting the jury was coerced into a conviction, defendant states: "With no notice to defendant before or during the trial, charging the jury on this un-presented theory, without there being a rational basis for the charge, violated defendant's right to a fair trial." We reject these contentions.

"'Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial.'" State v. Damiano, 322 N.J. Super. 22, 36 (App. Div. 1999) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)), certif. denied, 163 N.J. 396 (2000). "The charge must provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" Concepcion, supra, 111 N.J. at 379 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

When considering defendant's challenges, we must read and review the jury charge in its entirety. State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Setzer, 268 N.J. Super. 553, 564 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983); see State v. Ramseur, 106 N.J. 123, 280 (1987) (internal citations omitted).

Additionally, since there was no objection to the jury instructions when given, we review defendant's challenges under the plain error standard. R. 2:10-2. To find plain error in respect to the court's jury instructions, we must discern a "legal impropriety . . . prejudicially affecting the substantial rights of the defendant," which is "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." 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).

Defendant was charged with violating N.J.S.A. 2C:20-9. The statute states:

A person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition.

The trial judge, using the Model Jury charges, recited each element of the offense. In discussing the element of theft, the judge alternatively listed what he termed "the subject of the theft," that is, the vehicle or the value of its use.

Reviewing the jury charge as a whole, we conclude the challenged passage is perhaps awkward but nonetheless understandable and not plain error. Overall, the instructions given to the jury made it clear the State had the burden to prove all the elements of the offense, which were properly defined for the jury. The State's evidence supported the jury's finding beyond a reasonable doubt that defendant purposely obtained the Chevy Tahoe under the terms of the rental agreement, knowing of his contractual obligation to return the vehicle, but instead treated it as if it were his own, without making arrangements to pay the rental cost or return the vehicle. Damiano, supra, 322 N.J. Super. at 36; State v. Kelly, 204 N.J. Super. 283, 287 (App. Div. 1985).

Defendant is "entitled to an adequate instruction of the law[,]" which he received. State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). No basis is presented to interfere with the jury's verdict.

 
Affirmed.

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A-3863-07T4

January 29, 2010