STATE OF NEW JERSEY v. MICHAEL E. HAYMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL E. HAYMES,

Defendant-Appellant.

__________________________________________________

December 5, 2013

Submitted September 17, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-06-0352.

Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Michael E. Haymes was convicted of first-degree robbery, N.J.S.A. 2C:15-1. Defendant raises the following points for our consideration on appeal:

POINT I

THE CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED THEFT, AN ESSENTIAL ELEMENT OF THE CHARGE[D] OFFENSE OF ROBBER[Y].

POINT II

THE CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS NOT REQUIRED TO RENDER A UNANIMOUS VERDICT WITH RESPECT TO EACH OF THE ALLEGED VICTIMS NAMED IN THE INDICTMENT. (Not Raised

Below).

POINT III

THE SENTENCE OF TEN YEARS, EIGHT AND A HALF YEARS WITHOUT PAROLE, IS EXCESSIVE FOR THIS DEFENDANT AND THIS OFFENSE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The testimony adduced at trial demonstrated that defendant entered a Rite Aid pharmacy in Lower Township and informed the cashier, Joy Ufer, that he had a gun, was robbing the store and wanted $20. Defendant's right hand was in his sweatshirt pocket, and Ufer thought she saw the outline of a gun, despite the fact that the customer directly behind defendant told Ufer that the defendant did not have a gun. Ufer told approximately ten other customers in line behind defendant to proceed to the other cash register at the back of the store.

Ufer told defendant that she needed to get the manager to open the register to comply with his request, and she used the intercom to call manager Jeffrey Irwin. When Irwin did not respond, Ufer asked defendant's permission to go find him. When she located Irwin, Ufer told him that a man wanted to rob the store. Irwin walked to the front of the store, and Ufer proceeded to the photo lab. From the photo lab, Ufer watched Irwin activate the silent alarm. A third employee who was in the photo lab dialed 9-1-1 and handed the phone to Ufer, who provided the police dispatcher with a description of defendant.

Irwin approached defendant at the front of the store. Defendant's hand was still in his pocket and, like Ufer, Irwin believed it contained a gun. Irwin asked defendant if he was sure that he wanted to rob the store, and defendant instructed Irwin to give him the money. Irwin complied, and defendant took his hand out of his pocket to grab the money.

Defendant exited the store through the front door and stood at a nearby concrete pillar until police arrived. Corporal T. Shaun Whittington, who recognized defendant, approached and asked him what happened. Defendant told Whittington that he had just robbed the store. Whittington handcuffed defendant and placed him under arrest. There was a "mini Bic" lighter in the right-hand pocket of defendant's sweatshirt and a twenty-dollar bill in his pants pocket.

Based on this evidence, the jury convicted defendant of first-degree robbery, answering in the affirmative a specific interrogatory that defendant "was armed with or used or threatened the immediate use of a deadly weapon" at the time of the commission of the robbery. The judge subsequently imposed the minimum sentence for a first-degree crime, ten years imprisonment, along 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.

II.

A.

In Point I, defendant argues that that the State failed to prove an essential element of robbery beyond a reasonable doubt, because it failed to prove that defendant's purpose was to permanently deprive the store of $20. The State contends that the argument is a thinly-veiled attack on the sufficiency of the evidence, which is both procedurally-barred, since defendant never moved for a judgment of acquittal or a new trial, and substantively lacks merit.

We do not conclude that defendant's argument is procedurally-barred. Rule 2:10-1 provides that "[i]n both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." However, defendant does not contend the verdict was against the weight of the evidence. Rather, he argues that the State failed to prove an essential element of the crime, and that argument is not barred on appeal simply because defendant failed to move, pursuant to Rule 3:18-1 or -2, for a judgment of acquittal in the trial court.

"It is well settled that due process requires the State to prove each element of a charged crime beyond a reasonable doubt." State v. Hill, 199 N.J. 545, 558-59 (2009) (citations omitted). We consider defendant's argument that the state failed to do so in this case by applying the time-honored standard set forth in State v. Reyes, 50 N.J. 454, 459 (1967):

[W]hether[] 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.

[See also State v. Samuels, 189 N.J. 236, 244 (2007).]

N.J.S.A. 2C:15-1(a) provides that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury." Robbery is 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).

Theft, in turn, is defined as the unlawful taking, or the exercise of unlawful control over, "moveable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a). N.J.S.A. 2C:20-1(a) defines "deprive" as:

(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.

[(emphasis added).]

Defendant's essential argument is that the jury could not find beyond a reasonable doubt that he intended to permanently deprive the store of its money because he waited immediately outside for police to arrive and arrest him.

Defendant cites our decision in State v. Lindsey, 245 N.J. Super 466 (App. Div. 1991), for support. In Lindsey, the victim and the defendant engaged in an ongoing practice of regularly taking the belongings of the other. Id. at 474. In that context, we concluded that the jury charge amounted to plain error, because it omitted the definition of "deprive," thereby permitting the jury to conclude that the defendant was guilty, even if his possession of the victim's property "arose from a permissive rather than a criminal taking." Id. at 468, 474. 1

However, in this case, the jury was not required to accept defendant's asserted inference, i.e., that because he never fled, he did not intend to deprive the store of its money. Rather, the jury may "infer the existence of an essential element of the crime from circumstances attendant to conduct." State v. Harmon, 104 N.J. 189, 211 (1986) (citing State v. Ingram, 98 N.J. 489, 499 (1985)).

The circumstances attendant to defendant's conduct in this case were sufficient to allow a reasonable jury to find beyond a reasonable doubt that his purpose was to permanently deprive the store of twenty dollars, thereby, committing a theft. To the store employees, defendant described his actions as a "hold up." They complied with his demand for money because he led them to believe he had a gun. When police arrived, defendant told them that he had "robbed" the store. Defendant presented no evidence that his purpose was other than to retain the twenty-dollar bill. Viewing the evidence and its inferences in a light most favorable to the State, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that defendant had committed first-degree robbery.

B.

Defendant raises a more troublesome argument in his second point. He contends that the judge's failure to provide the jury with the "multiple victims" portion of Model Jury Charge (Criminal), "Robbery in the First Degree" (N.J.S.A. 2C:15-1) (revised Sept. 10, 2012), was plain error because it permitted the jury to return a non-unanimous verdict, in violation of the holding in State v. Gentry, 183 N.J. 30 (2005). In response, the State contends that the specific unanimity instruction was unnecessary because: (1) the prosecution did not advance two different theories based upon different evidence, and (2) and the general unanimity instruction was sufficient because the jury was not confused.

Because there was no objection to the charge as given, we review the argument utilizing the plain error standard. See R. 2:10-2 (permitting an appellate court "in the interests of justice" to "notice plain error not brought to the attention of the trial . . . court" if "it is of such a nature as to have been clearly capable of producing an unjust result . . . ."). "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

The alleged error must be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted). Though an erroneous jury charge is a "poor candidate[] for rehabilitation under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (citation omitted) (internal quotation marks omitted), any alleged error must be assessed in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super.304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000).

The indictment charged defendant with first-degree robbery by putting Ufer "and/or" Irwin "in fear of immediate bodily injury by threatening the use of a deadly weapon." The judge issued a general unanimity instruction, telling the jury that

[o]n the single crime charged in this indictment you may return a verdict of either not guilty or guilty. Your verdict, whatever it may be as to that crime charged, must be unanimous. Each of the [twelve] deliberating members of the jury must agree as to that verdict.

During its deliberations, the jury sent out the following note: "Please clarify, 'was armed with or used or threatened the use of a deadly weapon. . . .' Your expanded explanation appears to include the victims' impression."

In response, the judge re-iterated instructions he had provided in his earlier charge: "the [S]tate must prove beyond a reasonable doubt that the defendant purposely led either Joyce Ufer, or Jeffery Irwin to reasonably believe by words and conduct or gestures that the defendant possessed a deadly weapon." The jury interrogatory did not list either Ufer or Irwin, but simply asked the jury to find whether defendant "threatened another with, or purposely put him/her in fear of immediate bodily injury[.]"

The principle of unanimity is "deeply ingrained in our jurisprudence" and mandates that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). Both Article I of the New Jersey Constitution and Rule 1:8-9 require a unanimous verdict in criminal cases. State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). However, the way in which the unanimity requirement "plays out in individual cases is more complicated." Frisby, supra, 174 N.J. at 596.

It is clear that the jury must be provided with a "specific unanimity" instruction when specifically requested or where there is a danger of a fragmented verdict. State v. Gandhi, 201 N.J. 161, 192 (2010) (citing State v. Parker, 124 N.J. 628, 637 (1991)). The Court explained that

where there is an allegation on appeal that a specific unanimity charge should have been given, the core question is, in light of the allegations made and the statute charged, whether the instructions as a whole posed a genuine risk that the jury would be confused. The reviewing court should examine two factors: whether the acts alleged are conceptually similar or are contradictory or only marginally related to each other, and whether there is a tangible indication of jury confusion.
 
[Id. at 193 (internal quotations, citations, and alterations omitted).]

Similar to this case, in Gentry, supra, 183 N.J. at 31, the defendant was indicted for one count of second degree robbery of a Rite Aid store "and/or" its employee "and/or" its manager. He was accused of seizing several boxes of cigars before running out of the store. Ibid. The State alleged that during the theft, the defendant "charged" the female employee, knocking her backwards, then punched and kicked the manager as he attempted to flee. Ibid. The defendant testified and contended that he only "brush[ed]" past the female employee, and accidentally kicked the manager, who had grabbed onto the defendant's pants in an attempt to thwart his escape. Ibid. Thus, the defendant argued that he never intended to use force against or threaten either victim. Ibid.

During deliberations, the jury sent a note explaining that, while they unanimously agreed "defendant knowingly used force against" either the manager or the employee, one group of jurors believed that the unlawful force had been used only against the manager and another group of jurors believed force was used only against the employee. Id. at 31-32. When the jurors asked if this constituted "'a unanimous vote,'" the judge told them:

If a portion of this jury believes that that force has been shown and that same element of force requiring knowing intent has been distributed to someone else and they're both encompassed within the format of this indictment, I'm satisfied that that would be a unanimous determination of the force required by the statute has been proved by the State beyond a reasonable doubt if that is the jury's finding.

[Id. at 32.]

On appeal, a majority of our colleagues affirmed the defendant's conviction. State v. Gentry, 370 N.J. Super. 413 (App. Div. 2004). Judge Coburn dissented, concluding that the jurors had not agreed unanimously on which acts were committed against which victim. Id. at 426-27 (Coburn, J., dissenting). The Supreme Court reversed and remanded for a new trial, substantially for the reasons expressed by Judge Coburn. Gentry, supra, 183 N.J. at 33.

As a result, the model jury charge was amended and now includes the following language:

IF MULTIPLE VICTIMS ARE ALLEGED AND THE FACTS WARRANT, CHARGE THE FOLLOWING:
 
To find the defendant guilty of robbery, you must be unanimous that the defendant used force against (NAME OF VICTIM NUMBER ONE) or (NAME OF VICTIM NUMBER TWO). In other words, if you find that the defendant used force, but do not unanimously agree that he/she used force against (NAME OF THE VICTIM), then the State has failed to prove the existence of force beyond a reasonable doubt.
 
[Model Jury Charge (Criminal), supra, at 3-4.]

Judges are instructed to use the revised jury charge "if multiple victims are alleged and the facts warrant." Id. at 10 (emphasis added).

We do not condone the form of the indictment, i.e., its use of the terms "and/or," because such language only leads to potential confusion depending on the facts of the particular case. Nor do we condone the use of interrogatories that failed to name either victim.

However, as the Court has said, the essential inquiry is whether considering the proofs at trial, "'the instructions as a whole [posed] a genuine risk that the jury [would be] confused[,]'" and return a less than unanimous verdict. Gandhi, supra, 201 N.J. at 193 (alterations in original) (quoting Parker, supra, 124 N.J. at 638) We are convinced that did not occur in this case.

Although the judge did not include a specific unanimity charge in his general instructions, he made clear on two occasions that the State needed to prove that "defendant purposely led either Joyce Ufer, or Jeffery Irwin to reasonably believe by words and conduct or gestures that the defendant possessed . . . a deadly weapon." (Emphasis added). Together with the earlier general unanimity instructions which we presume were followed, see, e.g., State v. Loftin, 145 N.J. 295, 390 (1996) (citation omitted) ("That the jury will follow the instructions given is presumed"), the jury clearly understood its obligations.

More importantly, unlike the facts in Gentry, where the defendant engaged in separate acts directed at different victims and generally denied using force against either, defendant's conduct in this case was singularly directed toward obtaining twenty dollars from the cash register. The jury could not have been confused that the State contended defendant committed a single robbery.

Under the particular facts of this case, and given the absence of any objection, we are firmly convinced that the omission of the "multiple victims" portion of the Model Jury Charge did not "possess[] a clear capacity to bring about an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (internal quotation omitted). We affirm defendant's conviction of first-degree robbery.

III.

Lastly, we consider defendant's sentencing argument. He contends the judge's "finding of aggravating and mitigating [factors] was deeply flawed," thus arguing that the judge should have downgraded the offense by one degree, pursuant to N.J.S.A. 2C:44-1f(2), and sentenced him accordingly. That statute provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

[Ibid. (emphasis added); see also State v. Megargel, 143 N.J.484, 487-88 (1996).]

The judge found aggravating factors three, six and nine. N.J.S.A. 2C:44-1a(3) (the risk defendant will re-offend); (6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and (9) (the need for deterrence). He also found mitigating factor four, characterizing defendant's actions as a "cry for help," and noting defendant's mental health diagnosis of "depression" and his "alcohol dependency." See N.J.S.A. 2C:44-1b(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."). After weighing these factors, the judge indicated that, although he believed an "appropriate term of imprisonment" would be five years, which is the minimum sentence of imprisonment for a second-degree offense, he was unable to "conclude clearly and convincingly that the mitigating factors substantially outweighed the aggravating."

Defendant contends that aggravating factor six does not apply because, at the time of sentence, he was forty-seven years old and had only one prior indictable conviction for terroristic threats. However, the judge noted that in the prior case, defendant had originally been charged with robbery and pled guilty to a downgraded offense. He observed the "escalating" magnitude of defendant's convictions.

The defendant also contends that the trial judge should have found mitigating factors one, two and twelve. N.J.S.A. 2C:44-1b(1) ("[t]he defendant's conduct neither caused nor threatened serious harm"); (2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"); (12) ("[t]he willingness of the defendant to cooperate with law enforcement authorities"). However, the judge rejected application of all three at sentencing.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(quoting State v. O'Donnell, 117 N.J.210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J.334, 364 (1984); accordState v. Cassady, 198 N.J.165, 183-84 (2009).

Here, the judge's conclusions regarding aggravating and mitigating factors were supported by the record. In particular, the judge's rejection of the mitigating factors suggested at sentencing was a reasoned exercise of his broad discretion. See, e.g., Cassady, supra, 198 N.J. at 183 ("In finding defendant guilty of robbery, the jury necessarily found that the defendant knowingly caused or threatened serious bodily harm.") (internal alterations omitted); State v. Read, 397 N.J. Super 598, 613 (App. Div.) (questioning applicability of mitigating factor twelve simply because the defendant confessed to police), certif. denied, 196 N.J. 85 (2008).

Lastly, we reject defendant's argument that the judge should have downgraded the offense by a degree and sentenced him accordingly. The judge carefully considered the argument, but he was not "clearly convinced" that the mitigating factors substantially outweighed the aggravating factors, the initial predicate for application of N.J.S.A. 2C:44-1f(6).

1 In contrast, the jury charge in this case included the definition of "deprive" as provided in N.J.S.A. 2C:20-1.