STATE OF NEW JERSEY v. JAMES H. RUNYON, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0250-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES H. RUNYON, JR.,

Defendant-Appellant.

________________________________________________________________

May 28, 2013

 

Submitted October 29, 2012 - Decided

 

Before Judges Graves and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-05-0302.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

 

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from his conviction for attempted burglary, N.J.S.A. 2C:18-2, and his sentence of five years. We affirm.

Defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), charges which arose from events that occurred in the late morning of April 6, 2009. Kaitlynn Sawyer was alone in her sister Amanda's1 home, watching television in the living room while her sister was at work. The driveway was empty, and no lights were on in the home. Kaitlynn heard a noise and looked up to see defendant at the kitchen window, standing on top of a central air conditioning unit, "trying to break into the window[.]" The window was at the rear of the house facing the backyard, which was enclosed by a wooden picket fence, approximately four feet tall.

Kaitlynn approached and observed defendant, whom she had never seen before, attempting to unlock the window with his fingers. He never succeeded in unlocking or opening the window. Kaitlynn asked defendant what he was doing, and he told her that "the window was leaking and [he was] there to fix it." Kaitlynn testified that she was scared and called her sister "to see if somebody was really coming over to fix the window."

Defendant walked away when Kaitlynn went to make the call. However, when she returned, she could see the doorknob to the kitchen door moving, although she could not see through the door. Defendant did not enter the home. Kaitlynn remained on the phone with Amanda until she returned home. The sisters then went to the Elmer Police Department, where they met with Captain Patrick Bryan.

At the station, Kaitlynn was unable to positively identify defendant as the intruder. She initially identified a photograph of defendant, but because he had a lighter hair color, she was not "real convinced[.]" Kaitlynn described the intruder as wearing a red hat and an unzipped "tannish" Carhartt jacket. Based on those details, Bryan remembered that, earlier in the day, he had spoken to defendant, who was "wearing the same identical clothing [as the] description [provided]."

Later that day, police executed a warrant for defendant's arrest and took him into custody. They read him his Miranda2 rights when he was placed in the police vehicle and again at the station. After the second reading, defendant signed a Miranda form. Although he made an initial statement to police, it was not introduced at trial because it had not been properly recorded. Police questioning ceased after defendant refused to reduce his statement to writing.

According to Bryan, defendant's mother, Linda Wendling, entered the police station to inquire about defendant's bail. With Bryan sitting at a desk and defendant seated directly across from him, Wendling stood at the corner of the desk. Bryan overheard defendant tell his mother that he was on Amanda's property because he was "trying to help an elderly female[.]" Defendant told his mother that the air conditioner was "smoking and he was trying to get attention by knocking on the windows." Wendling asked her son why he did not call 911, but he did not respond.

Kaitlynn was able to identify defendant at trial and testified that he looked "a lot" different than when she saw him that morning; his hair was shorter, he had no facial hair, and he was wearing glasses. Bryan testified that defendant "apparently changes his hair color from time to time."

Defendant's mother refuted Bryan's testimony regarding her conversation with defendant while he was in custody. She testified that the only discussion she had with her son was about his bail.

The trial of this matter first began in May 2010. However, a mistrial was declared after defendant provided late notice that he had an alibi witness, his cousin, William Bartley. The trial began a second time in June 2010. However, Bartley failed to appear at trial. It was represented that Bartley was involved in a serious motor vehicle accident the night before his anticipated testimony and was helicoptered to Cooper Trauma Center. The trial court asked the State to check with regional hospitals regarding Bartley's status. The prosecutor reported that the State checked with Cooper Trauma Center, Christiana Hospital, and the Regional Medical Center in Vineland. None of the hospitals had a record of anyone named Bartley admitted or seen at the emergency room. The State also contacted the Salem County dispatch system and was advised that, although there had been two motor vehicle accidents, neither required an ambulance. The court announced its intent to proceed and asked defense counsel if he had any additional application to make. Counsel replied, "No, Judge. At this point, my client has been attempting to reach family that relayed the message last night and has been unable to reach anybody this morning."

The jury convicted defendant of attempted burglary and acquitted him of criminal trespass. Thereafter, the court denied the State's motion to have defendant sentenced to an extended term and imposed a sentence of five years imprisonment.

Defendant filed a pro se motion for a new trial based on newly discovered evidence. He argued that the court should order a new trial to allow Bartley to testify as an alibi witness. In support of his motion, he included an affidavit from Bartley stating he was hospitalized at the time of trial but presented no documentation to corroborate that statement. The court denied the motion, finding there was no newly discovered evidence and no basis for changing the judge's initial decision to continue the trial without Bartley's testimony.

Defendant presents the following arguments for our consideration in this appeal:

POINT I

 

THE OMISSION ON THE VERDICT SHEET OF AN OPTION TO FIND THE [SIC] MR. RUNYON GUILTY OF ATTEMPTED CRIMINAL TRESPASS, AS CHARGED TO THE JURY, DENIED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

 

POINT II

 

MR. RUNYON'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURTS [SIC] ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTION TO THE JURORS ON THE LAW OF ATTEMPTED BURGLARY (NOT RAISED BELOW).

 

POINT III

 

THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. RUNYON UNLAWFULLY ATTEMPTED TO ENTER THE SAWYER HOME WITH THE INTENT TO COMMIT AN OFFENSE AND THE GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

 

A. JUDGMENT OF ACQUITTAL

 

B. THE JURY'S VERDICT WAS AGAINST WEIGHT OF THE EVIDENCE

 

POINT IV

 

THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENSE COUNSEL'S APPLICATION FOR AN ADJOURNMENT WHERE MR. RUNYON'S ALIBI WITNESS BECAME UNAVAILABLE BECAUSE OF AN AUTOMOBILE ACCIDENT.

 

POINT V

 

THE TRIAL COURT ERRED IN DENYING MR. RUNYON'S PRO SE MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

 

POINT VI

 

THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY EVIDENCE REGARDING THE IDENTIFICATION OF MR. RUNYON AS THE SUSPECT.

 

POINT VII

 

THE TRIAL COURT ERRED IN PERMITTING CAPTAIN BRYAN TO TESTIFY AS TO MR. RUNYON'S STATEMENT WHERE MR. RUNYON HAD INVOKED HIS RIGHT TO SILENCE AND MIRANDA3 RIGHTS WERE NOT RE-ADMINISTERED.

 

POINT VIII

 

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

 

POINT IX

 

THE COURT OVER VALUED AGGRAVATING FACTORS RESULTING IN AN EXCESSIVE SENTENCE.

 

We have considered each of these arguments in light of the record and applicable legal principles and find that none have any merit.

In Points I and II, defendant presents arguments that were not raised before the trial court. Because these issues are raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006). We find none here.

Plaintiff first argues that the trial court erred in failing to include a charge on attempted criminal trespass on the verdict sheet. The State conceded that the evidence proved attempts to commit burglary and criminal trespass, but did not establish his guilt on the substantive offenses themselves. Accordingly, the court charged the jury with instructions on burglary, criminal trespass, and attempt. The verdict sheet submitted to the jury consisted of the following questions:

1. How do you find as Count 1 of the Indictment alleging that on or about April 6, 2009, in Elmer, Salem County, Defendant, James Runyon, did unlawfully attempt to enter the structure of Amanda Sawyer [on] Elmer Street with the purpose to commit an offense therein?

 

_____ NOT GUILTY

 

_____ GUILTY

 

. . . .

 

2. How do you find as Count 2 of the Indictment alleging that on or about April 6, 2009, in Elmer, Salem County, Defendant, James Runyon, did unlawfully enter the structure of Amanda Sawyer [on] Elmer Street knowing he was not licensed to do so?

 

_____ NOT GUILTY

 

_____ GUILTY

 

[(Emphasis added).]

 

The jury was thus asked to determine whether defendant was guilty of attempted burglary and criminal trespass, but not attempted criminal trespass. The jury convicted defendant of attempted burglary and acquitted him of criminal trespass.

Despite his acquittal on the criminal trespass charge, defendant contends that it was plain error for the court to fail to include a question regarding attempted criminal trespass on the verdict sheet. Our review of the verdict sheet here is subject to the standard of review prescribed by Rule 2:10-2, which 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 also State v. Galicia, 210 N.J. 364, 386 (2012);

Pressler & Verniero, Current N.J. Court Rules, comment 2.4 on R. 3:19-1 (2013). When the charge clearly sets forth the legal standard the jury must follow, an error in a verdict sheet may be deemed harmless. Galicia, supra, 210 N.J. at 387; State v. Gandhi, 201 N.J. 161, 197 (2010). Defendant does not challenge the adequacy of the charge on attempted criminal trespass and has not identified how the error in the verdict sheet was "clearly capable" of leading to an unjust conviction on attempted burglary. We discern no plain error.

The jury instruction on burglary tracked the Model Jury Charge for third-degree burglary. Nonetheless, defendant contends that the trial court committed plain error in failing to identify "any specific, intended post-entry offense" to be committed after defendant gained entry to the house.

[W]here the circumstances surrounding the unlawful entry do not give rise to any ambiguity or uncertainty as to a defendant's purpose in entering a structure without privilege to do so, so long as those circumstances lead inevitably and reasonably to the conclusion that some unlawful act is intended to be committed inside the structure, then specific instructions delineating the precise unlawful acts intended are unnecessary.

 

[State v. Robinson, 289 N.J. Super. 447, 458 (App. Div.), certif. denied, 146 N.J. 497 (1996).]

Here, Kaitlynn observed defendant, a man unknown to her, attempting to open a window in the rear of her sister's home. When she questioned him, he stated he was there to fix a leaking window, an explanation that Kaitlynn ascertained was untrue. The only other suggestion of an innocent purpose for his conduct was defendant's statement to his mother overheard by Bryan, i.e., that he was on Amanda's property "to help an elderly female" because the air conditioner was "smoking and he was trying to get attention by knocking on the windows." Defendant presented his mother's testimony to deny that he made such a statement. Even if defendant relied upon Bryan's testimony to present an innocent reason for his conduct, such was belied by the fact that Kaitlynn, the only person at home, was a teenager rather than an elderly female, and there was no evidence that an air conditioner was smoking. The evidence did not, therefore, "suggest the possibility of an innocent purpose," State v. Olivera, 344 N.J. Super. 583, 594 (App. Div. 2001), requiring a specific instruction as to defendant's criminal purpose. Again, we conclude that there was no plain error.

In Point III, defendant challenges the sufficiency of the evidence to support his conviction and argues that his motion for a judgment of acquittal at the end of the State's case should have been granted. These arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments. The testimony given by Kaitlynn provided a sufficient basis for a jury to conclude that defendant attempted to enter the residence with the purpose to commit an offense. The motion for a judgment of acquittal was, therefore, properly denied. State v. Josephs, 174 N.J. 44, 80 (2002); State v. Reyes, 50 N.J. 454, 459 (1967); R. 3:18-1. Because no motion was made for a new trial on the ground that the verdict was against the weight of the evidence, defendant's argument that the verdict was against the weight of the evidence "shall not be cognizable on appeal[.]" R. 2:10-1. Nonetheless, there was no "miscarriage of justice under the law" here because the "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (internal citation omitted).

In Points IV and V, defendant argues that the trial court erred in denying his request for an adjournment when his alibi witness was unavailable and in denying his motion for a new trial based upon newly discovered evidence that consisted of his proffered alibi witness. Neither argument has any merit.

The decision to grant or deny an adjournment "'rests within the sound discretion of the trial court.'" State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971). "'Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error.'" Ibid. (quoting Smith, supra, 87 N.J. Super. at 105). As a threshold matter, a defendant must show that he or she has been prejudiced by the denial. See id. at 532-33.

The trial court declared a mistrial in the first jury trial when defendant provided late notice of his alibi witness. When the witness failed to appear at the second trial, allegedly because he had been hospitalized as the result of a serious motor vehicle accident, the court required the State to investigate to determine the witness's status. There was no record of his admission at any of the regional hospitals and defendant could provide no further information as to the witness's status or availability. The court did not abuse its discretion in determining the trial would proceed, and, we note, defense counsel had no further application after this information was placed on the record.

For a new trial motion to be granted based upon "newly discovered evidence,"

defendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted."

 

[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

 

"[A]ll three prongs of that test must be satisfied before a defendant will gain the relief of a new trial." Ibid. Defendant's proffer of an alibi witness, known to him before this trial began, fails to meet this criteria.

Next, defendant argues that the court erred in permitting Bryan to testify that he identified defendant based on Kaitlynn's description of his hat and jacket. Bryan provided the following testimony without objection:

Q. And did you speak to Kaitlynn Sawyer?

 

A. Yes.

 

Q. And did she give you a physical description of the individual that was at the house?

 

A. Yes, sir.

 

Q. Did she also give you a clothing description?

 

A. Yes, sir.

 

Q. And based on that physical description, as well as the clothing description, did anyone come to your mind at that point?

 

A. Yes, sir.

 

Q. And who was that?

 

A. Mr. James Runyon.

Defense counsel objected when the prosecutor asked, "And why did you associate the description that Ms. Sawyer . . . had given you with Mr. Runyon?" A sidebar followed and the trial court overruled the objection, stating the officer was allowed to testify regarding what Kaitlynn told him "because that is offered to show why he went to look for somebody with a Carhartt jacket of that description and a red hat." Upon inquiry by the court, the prosecutor stated he would ask Bryan if he got a clothing description of a hat and a jacket. The court then asked defense counsel if he would have any objection to the prosecutor leading the witness in that way and defense counsel agreed that such leading would be better. Bryan then testified that he had received a description of clothing, specifically, a hat and the color of a jacket. Bryan testified further that he thought of defendant because he had a conversation with defendant earlier that morning and defendant was "wearing the same identical clothing description."

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.

 

[State v. Bankston, 63 N.J. 263, 268 (1973) (emphasis added) (internal citation omitted).]

 

The harm to be avoided is present when the officer's testimony includes a statement by a non-testifying declarant that implicates the defendant. Under such circumstances, the defendant is deprived of his constitutional right to confront the witness. See State v. McLaughlin, 205 N.J. 185, 207 (2011); State v. Roach, 146 N.J. 208, 224, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); Bankston, supra, 63 N.J. at 269. In Bankston, the Court stated, "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271 (emphasis added).

At the outset, we note that the description referenced by Bryan was not given by a "non-testifying witness," but by Kaitlynn, who testified defendant was wearing a red hat and an unzipped "tannish" Carhartt jacket. Because she was subject to cross-examination, defendant was not deprived of his Sixth Amendment right to confrontation. Moreover, the descriptive information provided by Kaitlynn, standing alone, did not implicate defendant in this offense. As the trial court observed, the limited description given in Bryan's testimony permitted the jury to understand that his conduct thereafter was not arbitrary, a purpose explicitly sanctioned in Bankston, supra, 63 N.J. at 268.

Defendant argues in Point VII that the trial court erred in permitting Bryan to testify about the statement he overheard defendant make to his mother. Defendant presented testimony from his mother that this conversation did not occur. Nonetheless, defendant contends that, because he was in custody and had invoked his right to remain silent, he should have been given additional Miranda warnings before he discussed the offense with his mother in the officer's presence. Both this argument and defendant's contention that the cumulative effect of trial errors deprived him of a fair trial lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, defendant challenges the five-year sentence imposed. He argues that the trial court failed to adequately weigh the aggravating and mitigating factors. Defendant does not argue that there was inadequate support for the court to find aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1(a)(3), (6), and (9). Rather, he argues that the court erred in failing to find as mitigating factors that defendant's conduct did not cause or threaten serious harm; that he did not contemplate that his conduct would cause or threaten such harm; and that his dependents would suffer excessive hardship. N.J.S.A. 2C:44-1(b)(1), (2), and (11).

Defendant's counsel asked the court to find these mitigating factors at sentencing. He argued that the court should consider that defendant did not threaten Kaitlynn or engage in any violence, although acknowledging, correctly, that these facts did not support mitigating factors. As for excessive hardship, his counsel said defendant "[h]as a small child that he is at least partially responsible for taking care of, lives with him." This is an insufficient basis for a finding of excessive hardship.

The imposition of a sentence falls within the discretion of the trial court, and an appellate court should not disturb a claimed excessive sentence unless there is a "'clear showing of abuse of discretion'" by the trial judge. Pressler & Verniero, supra, comment 3.1 on R. 2:10-3 (2013) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)). We find no abuse of discretion here.

A

ffirmed.

1 Because they have the same surname, we refer to Kaitlynn and Amanda by their first names to avoid confusion.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).