STATE OF NEW JERSEY v. CRAIG A. SHUGARTS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

CRAIG A. SHUGARTS,

Defendant-Appellant.

-

October 24, 2016

Submitted September 15, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-05-0456.

Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Elizabeth K. Tornese, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Craig Shugarts of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges against defendant stemmed from a gas station robbery where a co-defendant used a knife to threaten the station employee. On appeal, defendant requests we set aside the verdict and order a new trial, claiming prejudicial pre-trial and trial errors led to an unjust result. More specifically, defendant's brief sets forth the following arguments

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT II

RULE 3:16 WAS VIOLATED BY DEFENDANT'S ABSENCE AT THE HEARING ON HIS MOTION TO DISMISS THE INDICTMENT.

POINT III

THE TRIAL RECORD IS INCOMPLETE BECAUSE THE SIDEBARS WERE NOT RECORDED.1

POINT IV

THE COURT ERRED BY ALLOWING THE STATE TO AMEND THE INDICTMENT SUBSTANTIVELY.

POINT V

THE COURT'S FAILURE TO GRANT AN ADJOURNMENT WAS AN ABUSE OF DISCRETION.

POINT VI

THE JURY CHARGE DID NOT CORRECTLY INSTRUCT AS TO THE RELEVANT LAW AND WAS MISLEADING.

POINT VII

THE VERDICT SHEET WAS MISLEADING AND LED TO AN UNJUST RESULT.

POINT VIII

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IX

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT X

A NEW TRIAL IS WARRANTED DUE TO CUMULATIVE ERROR.

POINT XI

DEFENDANT'S SENTENCE IS EXCESSIVE.

We agree with Point VI. We conclude this error was not harmless, and we therefore reverse. Accordingly, we need not address the remaining Points.

I.

We derive these facts from the trial record. On March 14, 2013, at approximately 8:15 p.m., two men, wearing caps and masks, robbed a Gulf gas station in Vineland. Paul Smith,2 the station employee working at the time of the robbery, recognized co-defendant Jason Brown when he entered the store because Brown was a regular customer and had a large distinctive tattoo on his neck. Brown went behind the counter, held a knife to Smith's hip, and demanded the keys to the cash register.

While this occurred, Smith said the second male, later identified as defendant, stood by with his right hand in his pocket, holding an object that was brown or black in color. Smith believed this object was a gun. He further stated the object "looked like a handle." Smith acknowledged defendant never pointed a gun at him, but stated he heard one of the robbers say "stick up" when they entered.

While Brown stood by him with the knife, Smith said defendant began shouting obscenities and banging on the gas station alarm in an attempt to turn it off.3 Ultimately, Brown took cigarettes, money, and the cash register from the store, and defendant held the door for him as they left.

A third co-defendant, Holly Hall, was in the vehicle defendant and Brown entered after exiting the gas station. Hall was defendant's ex-girlfriend and the mother of his four-year-old child, but was dating Brown at the time of the robbery. Hall testified she, defendant, Brown, and the child all lived together. The four of them left their home on the evening of the robbery, according to Hall, and drove to Brown s sister s house to drop off Brown. After shopping at Walmart, they returned to Brown s sister s home, where they picked up Brown before driving to the Gulf station and parking alongside a nearby road. Brown and defendant then exited the car, with defendant telling Hall he needed a pack of cigarettes. Upon returning to the car, Hall noticed Brown put something in the trunk, and defendant got in the driver s seat and drove home. Hall recalled Brown acting loud and excited on the drive home.

Detective Kevin Vai of the Vineland Police Department responded to the reported gas station robbery and spoke with Smith. Detective Vai viewed the surveillance video of the incident and observed two white males enter wearing hooded sweatshirts. He observed Brown walk behind the counter and hold a knife to Smith, who then activated the gas station alarm. Detective Vai further observed defendant standing in front of the counter, and noted defendant grabbed the alarm and started "smacking it on the counter top" after Smith activated it. After Brown grabbed the cash register, a brief struggle ensued as Smith tried to pry it out of Brown's hands. Brown and defendant left the store with Brown carrying the register. Detective Vai testified he did not observe defendant holding a handgun on the video.

Based on the surveillance video and other investigation, the police identified defendant, Brown, and Hall as suspects. Police were able to look up Hall's motor vehicle information and locate her address in Pennsville Township. When Sergeant Stephen Pagnotto of the Pennsville Township Police Department arrived at the address, he observed Brown bent over the trunk of the suspect vehicle. Sergeant Pagnotto approached Brown and immediately took him into custody, and other officers arrested defendant and Hall. Both men were searched: police found no evidence on Brown, but found a knife in a sheath on the side of defendant's belt. Police recovered the knife and took it into evidence. That same evening, the police recovered the stolen cash register near Route 40, about fifty feet from the side of the road.

Detective Vai and Detective Ron DeMarchi interviewed defendant later that night, at 11:48 p.m. A video of the interview showed defendant wearing the same clothes he wore in the surveillance footage of the robbery. At first, defendant claimed he went to the gas station to buy cigarettes with Brown, unaware of Brown's planned robbery. However, after the officers informed defendant they had surveillance footage, he changed his story and indicated he knew of Brown's robbery plan

This was Jason's idea. Jason wanted money. Again, he said he's robbed that store before, he's been in and out. He said he had no problem doing it, and he asked me to walk up there. I said[,] ["]I'm not really wanting to get involved. I'm not going to hurt anybody. I don't want to be involved in it.["] . . . And if you have camera footage, you can see that I did nothing, I stood there. He had the knife, he grabbed the cash register, he grabbed cigarettes, he did all that.

Defendant also stated on the video, "I have a knife on me at all times[,] . . . [b]ecause I'm ex-military[,]" but denied using his knife in the robbery. Defendant stated neither he nor Brown possessed or used a handgun during the robbery. He further expressed surprise Brown used a knife during the robbery. Police efforts to locate a handgun proved unsuccessful.

On May 22, 2013, a Cumberland County grand jury returned an indictment charging defendant, Brown and Hall. Count one charged defendant with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), identifying the weapon as "to wit: a HANDGUN." Count three charged defendant with first-degree robbery, N.J.S.A. 2C:15-1(a)(1), again identifying a handgun as the weapon. Count four charged defendant with second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a), also specifying a handgun. Count seven charged both defendant and Hall with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).4

Before trial, the State moved to amend the language of count three to remove the phrase "to wit: a HANDGUN" so that it charged defendant generally with robbery while armed with a deadly weapon. The State filed this motion because of evidence showing both a gun and a knife were present. The court granted the State's motion, over objection, finding the requested amendment did not alter the charge.

At trial, the State presented testimony from Smith, Hall, and the police officers involved in the robbery investigation. Defendant did not testify.

After the State and defense rested, defendant moved for a judgment of acquittal on all charges, pursuant to R. 3:18-1. The court granted defendant s motion regarding the handgun charges (counts one and four), finding insufficient evidence for the jury to conclude beyond a reasonable doubt defendant possessed a gun. The court denied defendant s motion on the robbery and endangering charges (counts three and seven). Regarding the armed robbery charge, the court found the charge still appropriate under the simulated weapon provision, which does not require actual possession of a gun. In addition, the judge concluded the jury could have found the knife on defendant's hip constituted a deadly weapon.

Defense counsel objected to the jury receiving a simulated weapons charge, but otherwise did not object to the court's jury charge. The jury found defendant not guilty of "conduct or gestures which simulated possession of a deadly weapon," but found defendant guilty of armed robbery, both as a principal and as an accomplice to Brown s first-degree robbery. The jury also found defendant guilty of endangering the welfare of a child. The trial court denied defendant's motion for a new trial and sentenced defendant to anaggregate term of fifteen years of incarceration, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

II.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411 (1971)). Where a jury charge is "inadequate to guide the jury in the course its deliberations should take," the conviction should be reversed. State v. Jackmon, 305 N.J. Super. 274, 290 (App. Div. 1997) (quoting State v. Cook, 300 N.J. Super. 376, 489 (App. Div. 1996)), certif. denied, 153 N.J. 49 (1998). Because clear and correct jury instructions are so important, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." State v. McKinney, 223 N.J. 475, 495-96 (2015) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

Defendant did not object at trial to the court s charges challenged on appeal. R. 1:7-2. Therefore, our review is guided by the plain error standard. R. 2:10-2; McKinney, supra, 223 N.J. at 494. In connection with a jury charge, plain error is a "[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. Adams, 194 N.J. 186, 207 (2008) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Where the prosecution pursues a theory of accomplice liability against a defendant, "the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993) (citing State v. Weeks, 107 N.J. 396, 410 (1987)).

To commit a crime as an accomplice, a defendant must act with the purpose of aiding the substantive offense. State v. White, 98 N.J. 122, 129 (1984). The court must therefore instruct the jury "that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)).

Furthermore, in situations "when an alleged accomplice is charged with a different degree offense than the principal or lesser[-]included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Ibid.(alteration in original) (quoting Weeks, supra, 107 N.J.at 410). Courts are required to instruct the jury that "an accomplice can have a different mental state from that of the principal." State v. Savage, 172 N.J.374, 389 (2002).

Thus, if lesser-included offenses are submitted to the jury, "the trial court's failure to refer to accomplice liability while giving the lesser-included charge [is] reversible error." State v. Walton, 368 N.J. Super. 298, 307 (App. Div. 2004) (citing State v. Harrington, 310 N.J. Super.272, 279 (App. Div.), certif. denied, 156 N.J.387 (1998)). The jury must be apprised of the principle that a defendant can be guilty of second-degree robbery even though the principal was guilty of first-degree. Ibid.(citing Harrington, supra, 310 N.J. Super.at 279).

We first note the evidence shows defendant did not take any of the items himself. On cross-examination, Smith agreed "it was all taken by Jason Brown[.]" A person is guilty of robbery "if, in the course of committing a theft, he . . . [t]hreatens another with . . . immediate bodily injury." N.J.S.A. 2C:15-1(a)(2). A person is guilty of theft by unlawful taking if he "unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a). Because the record shows defendant did not actually take or exercise control over any of the stolen items, but rather all items were physically taken by Brown, when charging regarding defendant's liability for robbery the jury should have received instructions only on a theory of accomplice liability.5

The trial judge also failed to instruct the jury defendant could be an accomplice to second-degree robbery rather than first-degree robbery. The judge should have instructed the jury defendant may have had the purpose to aid Brown in a robbery without having the purpose to aid in a robbery with a deadly weapon, and thus could have had a different mental state than Brown. Savage, supra, 172 N.J.at 389. While there was no dispute Brown had a knife, there was a question as to whether defendant had the mental state to aid Brown in the robbery with that knife. The court's charge should have specifically addressed the issue of defendant's mental state as an accomplice.

Furthermore, lesser-included offenses were submitted to the jury, as the trial judge instructed the jury on second-degree robbery and theft. Therefore, the judge should have provided an instruction as to second-degree accomplice liability. Walton, supra, 368 N.J. Super.at 307. This missing instruction constitutes reversible error. Ibid.

The State argues a second-degree accomplice liability robbery charge was unsupported by the facts. Therefore, a second-degree charge was not required because a lesser-included charge, unrequested by the defendant at trial, "must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." Savage, supra, 172 N.J. at 397 (quoting State v. Choice, 98 N.J. 295, 298 (1985)). In support of this argument, the State asserts defendant unequivocally stated during his interview he knew Brown had a knife before the robbery began. The record fails to support this claim. In his taped interview, defendant told the police, "I went in the gas station. The next thing I know [Brown] pulled a knife on the employee. I had no idea what was going on." These statements support defendant's claim he did not know about Brown's knife before the robbery, and clearly indicate the appropriateness of a second-degree accomplice liability robbery charge.

The State further argues we should affirm defendant's first-degree robbery conviction because defendant carried a knife on his person, making the court's jury instruction of robbery while possessing a deadly weapon appropriate.

Moreover, we find the trial judge's instructions on first-degree robbery constitute reversible error because they were (1) confusing and (2) incorrectly stated the law. The trial judge provided the jury the following instructions on first-degree robbery, first based upon possession or use of a deadly weapon and then based upon threatened use of a simulated deadly weapon

In this case, it is alleged the defendant was armed with, used or threatened the immediate use of a deadly weapon while in the course of committing the robbery. In order for you to determine the answer to this question, you must understand the meaning of the term deadly weapon. A deadly weapon is any firearm or other 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 s capable of producing death or serious bodily injury. A section of our statute provides that robbery is a crime of the second degree, except that it is a crime of the first degree if the actor is armed with or uses or threatens the immediate use of a deadly weapon.

In this case, it is alleged that the defendant did not actually possess a deadly weapon, but instead purposely threatened the immediate use of such weapon and purposely engaged in conduct or gestures which simulated possession of a deadly weapon and which would lead a reasonable person to believe defendant possessed such a weapon.

These instructions were deficient and confusing, as they were not presented in terms of accomplice liability and failed to clearly differentiate between the actual armed robbery charge and the simulated armed robbery charge. They also failed to adequately address defendant's alleged intentional use of a deadly weapon, either real or simulated, in the robbery.

It is an acknowledged principle of jury instruction that courts should attempt to mold the instruction with the facts of the case. State v. Concepcion, 111 N.J. 373, 379 (1988). As our Supreme Court has cautioned

[I]t is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime. An instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case.

[Ibid.]

"[A]n instruction solely in the terms of the language of the statute will [sometimes] not give sufficient guidance to the jury." State v. Gartland, 149 N.J. 456, 475 (1997) (alterations in original) (quoting State v. Olivio, 123 N.J. 550, 567 (1991)).

The Model Jury Charge for first-degree armed robbery reflects these principles. Where the alleged deadly weapon is not a firearm, the judge should instruct the jury, in relevant part, as follows

Here, the State alleges that the defendant was armed with a (name of weapon). . . .

. . . .

Finally, in order for you to find that defendant was "armed with a deadly weapon," the State must prove beyond a reasonable doubt not only that he/she possessed and had immediate access to the potential weapon, but also had the purpose to use it in a way that is capable of producing death or serious bodily injury.

[Model Jury Charge (Criminal), "Robbery in the First Degree" (2012).]

Because the trial judge dismissed the handgun possession charges against defendant, the only deadly weapon defendant could have personally possessed was the knife he admitted carrying on his hip at all times. Although the trial judge briefly defined deadly weapon, he did not make clear if he was referring to the knife as a deadly weapon, or if he was only referring to a deadly weapon in the context of a simulated handgun. As the model jury charge instructs, the judge should identify the weapon at the beginning of the instruction.

Additionally, the trial judge's instruction concerning possession of a deadly weapon did not adequately inform the jury on the law. Robbery rises to the level of a first-degree offense 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). Our criminal code defines "[d]eadly weapon" as

[A]ny firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is 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 State v. Riley, 306 N.J. Super. 141, 149-50 (App. Div. 1997), we held while firearms are per se deadly weapons, knives are not. We reiterated this point in State v. Brown, 325 N.J. Super. 447, 453-54 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000), holding that a knife in the defendant's pocket during the commission of a robbery was not a deadly weapon where it was "neither held by defendant nor seen by the victim." We further noted the knife could not meet the definition of a deadly weapon where there was no evidence the defendant used or intended to use it during the robbery. Id. at 454 (citing Riley, supra, 306 N.J. Super. at 146-50).

Our Supreme Court applied this principle in State v. Rolon, 199 N.J. 575 (2009). The Court held where a knife is involved, the jury must determine "(1) whether defendant's knife was a deadly weapon, and (2) whether she was armed with it." Id. at 585-86. The Court stated: "Because the knife was not per se a deadly weapon, the jury had to assess whether defendant used it or intended to use it as such." Id. at 586. The Court stressed where a knife is not used and was never intended to be used during a robbery, the definition of deadly weapon is not met, and therefore the court must explain "that distinction with respect to which defendant s intent was critical." Ibid.

Therefore, the trial judge should have instructed the jury, pursuant to Brown and Rolon, that a knife is not a deadly weapon per se, but that its status depends on whether it was purposely used by defendant or observed by Smith. This distinction is key here, since Smith testified he thought defendant had a gun, but made no mention defendant had a knife. When questioned by police, defendant acknowledged Brown used a knife, but expressly denied using his own knife. Smith did mention seeing a handle, but it appears from his testimony he thought this was the handle of a gun. Therefore, the trial court should have instructed the jury to consider whether the knife was a deadly weapon under the standard set forth in Brown, i.e. used by defendant or seen by Smith.

Considering the entirety of the record and the charge, we are of the view the erroneous jury instructions, including the incorrect instruction regarding principal liability and the deficient accomplice liability and deadly weapon instructions had the clear capacity to mislead the jury. We are therefore left with a reasonable doubt as to whether the erroneous charges led the jury to a result it might not otherwise have reached. The errors were therefore not harmless and defendant is entitled to a new trial on the armed robbery charge.

In sum, we conclude deficient jury instructions warrant reversal of defendant's first-degree robbery conviction and remand for a new trial. None of defendant's arguments on appeal challenged the endangering verdict against him, which we affirm.

Affirmed in part and reversed and remanded in part. We do not retain jurisdiction.

1 Defense counsel withdrew this point after filing her brief upon receiving confirmation the sidebars were in fact recorded.

2 We utilize a pseudonym for the victim to protect his privacy.

3 While the alarm made a loud sound, it had no connection to the police.

4 Counts two, five and six charged Brown with first-degree robbery, third-degree possession of a weapon for unlawful purpose, and fourth-degree unlawful possession of a weapon.

5 Consistent with this error, Question Two on the verdict sheet, read: "How do you find as to the charge that Defendant, in the course of committing a theft, used, threatened immediate use of, or was armed with a deadly weapon?"