STATE OF NEW JERSEY v. JOVONE L. GORDON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5117-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOVONE L. GORDON,

Defendant-Appellant.

_____________________________________________

November 2, 2012

 

Submitted May 9, 2012 Decided

 

Before Judges Lihotz and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-09-0508.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the briefs).

 

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Jovone L. Gordon appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft, N.J.S.A. 2C:20-3. The trial judge sentenced defendant to fifteen years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the robbery and a concurrent term of four years for the theft. The judge charged the jury instructing them on the elements of first-degree and second-degree robbery. The jury convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were trial errors warranting reversal.

We conclude the State's evidence was insufficient to sustain a conviction for first-degree robbery and the court erred in denying defendant's motion at the conclusion of the State's case. We reverse and remand for the entry of a judgment of acquittal for the first-degree armed robbery conviction and amendment of the judgment of conviction to reflect the conviction of second-degree robbery. We also remand for sentencing.1

I.

The trial record reveals that on April 24, 2009, defendant entered the Harvest Community Bank in Pennsville and asked the bank manager about opening an account. The manager referred him to Sherry Weiss, the head teller. Defendant asked Weiss about obtaining a mortgage, but then acknowledged that he did not have any identification and proceeded to leave. However, he walked over to another teller, Ann Gladhill, told her he had a gun, and ordered her to give him money.

Donna Joe Bunting was working at the drive through window when defendant approached Gladhill. She heard defendant tell Gladhill he had a gun and watched as Gladhill put cash into a bag. Gladhill asked Bunting for additional money and she turned over large bills to defendant. Both Bunting and Gladhill included "bait money" in the bag they turned over to defendant. The "bait money" included several twenty dollar bills, the serial numbers of which were prerecorded and kept in the bank. A security camera recorded defendant in the bank, but did not show the interaction between defendant and Gladhill.

At the same time, an off duty police officer was in the banking lot and noticed a dark Crown Victoria. He became suspicious when he noticed one man in the driver's seat and another man in the back seat. He became more concerned when the car left at a high rate of speed. He followed the car for a short time and wrote down the license plate number. When he returned to the bank parking lot, he realized that a robbery had taken place and he related what he had seen to detectives on the scene. The registration for the car belonged to Kareem Sashier from Chester, Pennsylvania. The Chester police were notified and an officer was sent to look for the car. The officer found the car parked near the address given for Sashier, waited about ten minutes, and saw an African-American male enter the car and drive away. The officer pulled the car over and arrested the driver who was defendant. A cell phone and a large amount of cash were seized. Some of the "bait money" was among the bills seized.

Ultimately, defendant admitted to committing the robbery. He even wrote out an apology to the bank employees. However, when defendant testified on his own behalf at trial, he denied most of the State's case, including his confession. Defendant stated that his father gave him $1000 to pay for car insurance and to retrieve his car which had been impounded. He also stated that an acquaintance, Otis Bullock, gave him a roll of cash to give to Sashier. That was his explanation for the "bait money" found in his possession.

At the conclusion of the State's case, defense counsel moved to dismiss the case for lack of evidence. While counsel did not specifically mention the grading of the offense, a motion had apparently been made before trial to dismiss part of the first-degree crime for lack of evidence. The trial judge determined that there was sufficient proofs to go to the jury on that issue and denied the motion.

Gladhill testified that defendant "stated that he had a gun and that he wanted all my money." The prosecutor then sought to elicit testimony concerning the gun and asked the following questions:

Q. Did you ever see him with a gun?

 

A. No.

 

Q. Did he ever brandish, make some object, or make some gesture as if he actually had a gun?

 

A. No, I just -

 

Q. He just said he had a gun?

 

A. Yes.

 

Defendant was convicted of first-degree robbery and third-degree theft. This appeal ensued.

II.

Defendant raises the following issues for our consideration on appeal:

POINT I

 

THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS AT THE END OF THE STATE'S CASE AND BY RULING THAT A MERE THREAT OF A GUN ELEVATED THE CRIME TO FIRST-DEGREE ROBBERY.

 

POINT II

 

THE PROSECUTOR ERRED IN HIS SUMMATION BY SUGGESTING THE DEFENDANT HAD A BURDEN OF PROOF TO PRESENT WITNESSES. THIS ERROR, OBJECTED TO BY DEFENSE COUNSEL, WAS NOT CURED BY THE TRIAL JUDGE, RESULTING IN AN UNFAIR TRIAL AND DENIAL OF DUE PROCESS.

 

POINT III

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

III.

We first address our standard of review. When considering a defendant's motion denying acquittal, we apply the Reyes standard and review only the state proofs to determine:

whether, viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967).]

See also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2013). We review the decision of the trial judge de novo, applying the Reyes standard to evaluate the motion for acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). See also Pressler & Verniero, supra, comment 5 on R. 3:18-1.

IV.

Prior to reviewing defendant's challenge, we review the elements of the offense for which he was charged. Robbery is a crime of the second-degree, but it is elevated to a first-degree crime if, in the course of committing the theft, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). The definition of a "deadly weapon" includes simulation of a deadly weapon, enabling a defendant's conviction for first-degree armed robbery to be based on simulation of the possession of a deadly weapon. Indeed, "deadly weapon" is defined as

any . . . weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]

 

[N.J.S.A. 2C:11-1(c).]

 

In the context of simulation, the definition of "deadly weapon" in N.J.S.A. 2C:11-1(c) has been read to require that there be either an object that clearly simulates a weapon or a combination of words and gestures that "complete the impression of a concealed weapon . . . ." State v. Chapland, 187 N.J. 275, 292 (2006). It is important to note that our Supreme Court did not expressly limit the statutory interpretation to these two alternatives.2 However, the Court stated that "[a] threat or reference to a deadly weapon alone is not enough." State v. Hutson, 107 N.J. 222, 227 (1987).

In this matter, defendant argues the nature of the threat to the bank teller was insufficient to convict him of armed robbery by simulation and the trial judge erred in denying his motion for acquittal. In commenting on the State's evidence, the trial judge concluded "there [were] sufficient proofs to go to the jury" to determine "whether a reasonable person would have believed there was a weapon based on the conduct of the perpetrator." We do not disagree with this construct of law, we disagree with the trial judge's determination that the State met its burden of proof as Gladhill related no observations of defendant's conduct and the video evidence captured no gestures suggesting defendant had a gun. On this record, it is unrefuted that defendant did nothing other than state the existence of a gun.

In State v. LaFrance, 224 N.J. Super. 364 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583 (1990), we affirmed a conviction for first-degree robbery concluding the defendant's conduct satisfied the statute where the defendant stated he had a gun, positioned his hand inside his coat so it appeared to be a gun, and threaten to blow his victims' brains out. Id. at 368, 372-73. In State v. Huff, 292 N.J. Super. 185 (App. Div.), certif. denied, 146 N.J. 570 (1996), aff'd, 148 N.J. 78 (1997), we likewise affirmed a conviction for armed robbery in a case where the defendant told his victim that he had a gun and patted the waistline under his coat to indicate where the gun was allegedly concealed. Id. at 190-91. Despite the fact that defendant did not simulate a gun, we found significant the fact that "the victim testified and indicated by physical demonstration what defendant did when he said he had a gun and asked for the money." Id. at 191 (emphasis in original). LaFrance and Huff inform us that simulating the appearance of a weapon or gesturing to a location where it would be reasonable to believe the identified weapon was concealed, when combined with a threat, are sufficient circumstances to establish first-degree robbery by simulation.

The importance of an accompanying gesture was made apparent in Chapland. According to the defendant's account of the facts in Chapland, while struggling with the victim for her pocketbook, he drew his hand behind his back as though he were reaching for a weapon and yelled, "Give me your pocketbook, bitch." Supra, 187 N.J. at 291-92. A jury convicted the defendant of first-degree robbery but defendant appealed his conviction asserting that the trial court's instruction to the jury, that if it found that defendant had simulated the possession of a knife, it could find him guilty of first-degree robbery, was error. Id. 281-83. Our Supreme Court disagreed holding that even though the defendant may not have actually had a weapon, the gesture, which was indicative of both possession and imminent use of a weapon, was sufficient to meet the Hutson requirement that there be more than words. Chapland, supra, 187 N.J. at 291-92. The facts of Chapland indicate that a gesture is crucial, at least in circumstances where the defendant does not specify that he or she has a weapon. The question in this case, however, is what conduct is required to accompany words when the defendant explicitly references a gun.

Here, there is no testimonial or video evidence that defendant made a gesture, such as a gesture akin to pointing a fake gun in LaFrance or rapidly reaching for a nonexistent weapon in Chapland; or a gesture that he had a gun, similar to patting one's body, as in Huff. In fact, as we noted, there was no evidence, whether in the form of testimony or video, that defendant made any inculpatory gesture at all. The facts here are analogous to Hutson, in which there was no gesture accompanying the announcement that perpetrator had a gun. Supra, 107 N.J. at 228 ("what is missing in this record is the link between the threat and the object viewed by the victim").

Consequently, the trial judge erred in determining defendant's threat of a gun unaccompanied by a gesture was sufficient to establish robbery by simulation. The threat to use a deadly weapon must be accompanied by some conduct evincing the existence of that weapon.3 Defendant's conviction and sentence for first-degree robbery is therefore vacated. However, because the trial judge used interrogatories, it is clear the jury found defendant guilty of conduct that, "in the course of committing a theft did purposely threaten another with or put her in fear of immediate bodily injury," satisfying the elements of conviction of second-degree robbery. Thus, the judgment is amended to reflect defendant's conviction for second-degree robbery.

V.

Defendant also argues that a comment made by the prosecutor in his summation resulted in an unfair trial and a denial of due process. Defendant testified that his father gave him $1000 to pay his insurance and to retrieve his car which had been impounded. He also stated he had received a small roll of money from Otis Bullock. As part of defendant's testimony, he told the jury his father was having surgery that day and could not attend the trial.

In summation, the prosecutor stated:

Mr. Gordon took the stand and told his story that you've got to ask yourself, does it make sense. Yes, I executed -- I happen to have all this money on me. Why? Well, because my dad gave me a thousand dollars this morning, earlier that morning something about my car was impounded and I needed that. It was interesting because we heard all this testimony about what a poor, crime ridden neighborhood it is and what a coincidence that in a poor, crime ridden neighborhood daddy just happens to give him a $1,000 that he has floating around, you know, to get his car -- car out. And of course dad didn't testify but, you know -- and there's no corroboration of that but that was his story.

 

Defense counsel did not immediately object. Upon completion of the prosecutor's summation, the judge instructed the jurors to take their lunch break. After the jury left the court room, the judge inquired of the parties whether they wanted to address anything before the lunch break. Defense counsel responded, "Yes, Your Honor. If I heard Mr. Waterston in his closing say that Mr. Gordon didn't corroborate where he got his money from; is that Mr. Gordon's burden to corroborate where he got money from?" Both parties agreed it was not defendant's burden and the judge commented, "It might not be his burden but he did put that into the case and I think it s fair comment for the State to say there is no corroborating evidence." Defense counsel responded, "Okay."

Our Supreme Court addressed the use of a jury instruction permitting a negative inference upon a finding that a defendant failed to present available witnesses whose testimony would be reasonably expected to support his or her version of the facts. See State v. Clawans, 38 N.J. 162, 170-72 (1962). However, in State v. Alonzo Hill, the Court generally disapproved the use of Clawans instructions against defendants in criminal cases. State v. Alonzo Hill, 199 N.J. 545, 565-67, 566 n.8 (2009).4 Nonetheless, the Court noted, "we recognize that not all summation comment on a defendant's failure to produce a witness would produce the impermissible effect of lessening the State's burden of proof." Hill, supra, 199 N.J. at 569 n. 9. This is such a case.

On the basis of the differences between the jury instruction given in Hill and the comment made by the prosecutor in this case, and weighing the relative strength of the evidence presented in both cases, we distinguish Hill and conclude that the error in this case is harmless. We accept the longstanding principle that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 604 (1953)).

Defendant also argues that the trial judge should have given a curative instruction after the offending remark was made by the prosecutor. In this case, the stray remark did not prevent defendant from establishing a defense on the merits. See State v. Witte, 13 N.J. 598, 612 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Therefore, in light of the comment's fleeting nature, the ability of the trial judge to gauge the statement's effect on the jury, and the strength of the State's case, the omitted curative instruction was not so unduly prejudicial as to have denied defendant a fair trial and we find no basis for reversal. See State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.), certif. denied, 109 N.J. 54 (1987).

T

he judgment of conviction and sentence for first-degree robbery is vacated; however, the judgment is amended to reflect defendant's conviction for second-degree robbery. The case is remanded to the Law Division for sentencing.

1 We recognize that defendant did not move for a new trial and note that Rule 2:10-1 suggests defendant will be unable to challenge the sufficiency of evidence on appeal. However, because the error in defendant's case is of a constitutional dimension affecting his liberty interest, in the interest of justice we will analyze the merits of his challenge. See State v. Smith, 262 N.J. Super 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993).

2 "An unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Chapland, supra, 187 N.J. at 292 (emphasis added).

3 "The simulated weapon robbery instruction requires that a defendant engage in 'an unequivocal or unambiguous simulation of a weapon [or] of a concealed weapon, or by an equivocal or ambiguous gesture coupled with threatening words that completes the victim's impression of a deadly weapon.'" State v. Nero, 195 N.J. 397, 412 (2008) (emphasis added).

4 Indicating that the Court had not addressed the issue previously but recognizing that this court had previously held that "use of a Clawans charge against a defendant in a criminal trial" was not error in a case involving an alibi defense and citing State v. Gonzalez, 318 N.J. Super. 527, 529 (App. Div.), certif. denied, 161 N.J. 148 (1999), a case in which this court rejected the argument without discussion and reversed on other grounds. Alonzo Hill, supra, 199 N.J. at 565-67.