STATE OF NEW JERSEY v. ANGELIA A. SUTTON-CHOLULA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELIA A. SUTTON-CHOLULA,

Defendant-Appellant.

______________________________

December 21, 2016

Submitted August 23, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-04-1021.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Angelia A. Sutton-Cholula was indicted on two counts of third-degree burglary, N.J.S.A. 2C:18-2; fourth-degree credit card theft, N.J.S.A. 2C:21-6c; two counts of third-degree theft of a controlled dangerous substance, N.J.S.A. 2C:20-3; and fourth-degree theft of currency and a purse, N.J.S.A. 2C:20-3. She was convicted by the jury on all counts, and the judge sentenced her to one year of probation with credit for eighty-two days' time served and imposed penalties of $780 and restitution of $320. Defendant appeals her conviction, raising the following issues

POINT I

DEFENDANT'S CONVICTION SHOULD BE REVERSED

BECAUSE THE CUMULATIVE PREJUDICE FROM THE ERRONEOUS JURY INSTRUCTION ON "DEFENDANT'S ELECTION NOT TO TESTIFY," THE OMISSION OF A "MERE PRESENCE" JURY INSTRUCTION, AND THE MISLEADING JURY INSTRUCTION ON "IDENTIFICATION" RESULTED IN PLAIN ERROR. (NOT RAISED BELOW).

(A) THE TRIAL COURT'S "ELECTION" CHARGE WAS FLAWED AND BIASED TOWARDS CONVICTION.

(B) THE OMISSION OF A "MERE PRESENCE" JURY

INSTRUCTION UNDERMINED DEFENDANT'S PRESUMPTION OF INNOCENCE.

(C) THE TRIAL COURT'S MISLEADING

INSTRUCTION ON IDENTIFICATION IMPROPERLY INDUCED THE JURY TO ASSESS THE EVIDENCE IN TERMS OF GUILT.

POINT II

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

Because our review of the record convinces us there was no error in the jury instructions and the judge did not abuse his discretion in denying defendant's motion for acquittal, we affirm.

The State presented the testimony of the two alleged victims, both of whom did laundry at the Magic Wash Laundromat in Manahawkin in the summer of 2012. One victim testified she saw defendant, whom she described as having brown hair and a deformed nose, sitting with another woman in the laundromat. The two women were charging their cell phones and did not appear to be doing laundry. After putting her clothes in a dryer, the victim left to run errands.

When she returned to retrieve her clothes, leaving her purse on the front seat of her unlocked car, the two women were still sitting looking at their phones. The victim testified that as she returned to her car with her laundry basket of folded clothes, she noticed the brown haired woman was gone. The victim also immediately noticed her purse was missing. Inside was "a little over $300" in cash, her social security card and driver's license and other "odds [and] ends."

The victim testified that police recovered her purse about a year later "in the woods." Although they returned it to her, it and its remaining contents were by then unusable from being out in the weather. At trial, the victim identified defendant as the woman she saw at the laundromat the day her purse was stolen.

The second victim told the jury a similar story. She testified that as she entered the laundromat, she noticed defendant sitting in a chair charging her cell phone. No one else was there. After putting her clothes in a washer, the second victim left the laundromat to run errands. When she returned, defendant was standing by the front door. Defendant said she did her laundry there all the time, and the best dryers were in the far corner. The second victim, who did not frequent the laundry and was only there because her own dryer was broken, took defendant's advice and put her clothes in the dryers defendant directed her to. The second victim then drove home to check on her children.

When she returned to the laundromat, defendant was again standing near the front door, which she held open for the victim. The second victim walked to the far corner of the laundromat, from where she could not see the front door. She testified she took her laundry from the dryers, piling it in her laundry basket without bothering to fold it. When the victim returned to her car, which she had left unlocked, her purse was missing and defendant was nowhere to be seen.

Concluding she had been "set up," and fell "hook, line and sinker," the second victim drove immediately to the police station to report the theft. In addition to over $100 in cash, her driver's license and some credit cards, the victim testified that certain narcotic prescription drugs were also stolen along with her pocketbook. Although the second victim identified defendant at trial, she testified that she was not "100 percent" certain, putting her level of certainty at "probably about 75 percent."

The State presented only the two victims and defendant did not testify or offer any evidence. The State's case was thus entirely circumstantial and rested on the credibility of the victims and their identification of defendant at trial.

Acknowledging it was "a circumstantial case," defense counsel's argument on the motion for acquittal at the end of the State's case consumed no more than a page of the transcript. The judge found sufficient evidence to allow the case to proceed, relying on State v. Reyes, 50 N.J. 454, 458-59 (1967) (describing the test as "whether, viewing the State's 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").

As to the jury instructions, the case was tried after the charge on in-court identification was revised in light of State v.Henderson, 208 N.J. 208 (2011). The judge discussed the charge with counsel at length. After explaining his proposed modifications based on the evidence presented, the judge asked whether either side had any objections. Although having argued against one aspect of the identification charge, the State acquiesced. Defense counsel endorsed the charge, saying "I think that's the better explanation."

Following almost two hours of deliberations, the jury returned a guilty verdict on all counts. This appeal followed.

Turning first to the jury instructions, we note that none of defendant's arguments alleging error were raised to the trial court. Accordingly, she is not entitled to relief absent "demonstration of legal impropriety of the charge prejudicially affecting [her] substantial rights," which must be "sufficiently grievous" to justify our notice, convincing us "that of itself the error possessed a clear capacity to bring about an unjust result." State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Burns, 192 N.J. 312, 341 (2007)); see also R. 2:10-2. Applying that standard here, we are convinced that none of plaintiff's arguments is meritorious or requires more than brief comment.

Defendant elected not to testify and to have the judge give the jury direction on her right to remain silent. The judge accordingly instructed the jury on defendant's constitutional right to remain silent and directed that jurors not consider for any purpose the fact she did not testify. The judge concluded his instruction by saying defendant is "presumed innocent even if she chooses not to testify." Defendant argues that the use of the word "even" biased the jury toward conviction.

Judging the instructions in their entirety, we cannot agree. As we held in State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010), aff'd in part, remanded in part on other grounds, 205 N.J. 109 (2011), addressing the same error,

We have no doubt that a jury hearing this clear description could not be confused by use of the word "even" and led to conclude that defendant had an obligation to testify. We recognize that the last sentence of the relevant Model Jury Instruction was revised after defendant's trial and that it now explains that the defendant "is presumed innocent whether or not [he] chooses to testify." Model Jury Charge (Criminal), "Defendant's Election not to Testify" (revised May 4, 2009). Nonetheless, we are persuaded that the charge given in this case, read as a whole, had no capacity to lead the jurors astray. The jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time.

Although the revision to the model charge took place well before defendant's trial, we likewise come to the same conclusion that the error was not harmful in light of the entirety of the charge.

Defendant also claims the judge should have sua sponte charged the jury it could not find "defendant's 'mere presence' at the scene to be substantive evidence of guilt if her presence at the scene is the sole evidence of her guilt." We are aware of no support for that proposition, and the case on which defendant relies for such support, State v. Shipp, 216 N.J. Super. 662, 666 (App. Div. 1987), does not address a jury instruction. Shipp stands for the proposition that "[m]ere knowledge, without more, on the part of one automobile passenger that a co-passenger is carrying illicit drugs does not constitute the former a co-possessor." Ibid. The case has no applicability here, and we reject defendant's argument the judge should have given a charge based on that case.

We likewise reject defendant's argument that the judge erred in advising the jury as to the victims, "[y]ou will recall that these witnesses identified the defendant as the person who committed the offenses charged." Defendant claims the instruction was "misleading" in light of the second victim's testimony that she was only seventy-five percent sure defendant was the woman who stole her pocketbook.

There is no question that the second victim made an in-court identification of defendant, although she qualified her level of certainty. Accordingly, we find no error in the judge's characterization of the testimony, especially in light of his very clear and detailed instruction in accordance with Henderson about the risk of mistaken identifications when considering eyewitness testimony.

Defendant's argument that the court abused its discretion in denying her motion for acquittal at the conclusion of the State's case is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2); Reyes, supra, 50 N.J. at 458-59.

Affirmed.