STATE OF NEW JERSEY v. RAVON FREEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0797-05T40797-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAVON FREEMAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 4, 2006 - Decided February 26, 2007

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No.

04-09-1268.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent

(Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ravon Freeman appeals from a judgment of conviction and sentence. Tried to a jury, defendant was convicted of receiving a stolen car, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b), a crime of the third degree, and resisting arrest, N.J.S.A. 2C:29-2a(2), a crime of the fourth degree. The jury was unable to reach a verdict on the charge of eluding. The judge granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a and imposed an extended term of incarceration for eight years for the third-degree crime of receiving the stolen car and a consecutive term of fifteen months for the fourth-degree crime of resisting arrest. The appropriate penalties and assessments were also imposed.

On April 5, 2004, Officer Henderson of the City of Passaic Police Department saw a 1998 Honda Accord with a Virginia license plate stop at an intersection controlled by a stop sign. The driver did not proceed when traffic permitted, and Henderson watched while several cars drove around the Honda.

Henderson drove up behind the Honda, turned on his patrol car's emergency flashers, and walked toward the Honda. He was in uniform. There were three people in the car. Defendant was in the driver's seat and was slumped over. When Henderson asked him if he was alright, defendant said he was just changing a CD. According to Henderson, defendant's responses were hesitant and he appeared to be nervous. In response to Henderson's request for defendant's license, registration and insurance card, defendant gave him two forms for transfer of the Virginia registration and said he did not have his driver's license with him. Although Henderson did not notice whether there was a key in the ignition, he asked defendant to turn off the car's engine. Instead, defendant put the car into gear and sped off. Henderson pursued, contacted headquarters and learned that the Honda he was following had been reported stolen.

Defendant ran a red light, made a turn, drove on the wrong side of the road, returned to the proper lane and continued driving until traffic required him to stop. Defendant's driving was captured by a video camera mounted in Henderson's patrol car, and the jury saw the tape. Defendant got out of the Honda and ran into the backyard of a nearby house. Henderson left the patrol car and followed. He did not see defendant, but he saw that a wall enclosed the yard. He went to the front of the house. As he walked toward the backyard along the side of the house, he encountered defendant, who was heading toward him. Defendant turned, jumped a fence and went to the street. Henderson followed. He saw defendant banging on the door of a bus that was stopped at a traffic light. The driver did not open the door and Henderson apprehended and arrested defendant. The Honda was searched. According to Henderson, nothing of evidential value was found. There was no testimony about the condition of the Honda.

David Henry testified about the theft of the Honda. It belonged to his stepdaughter, Tanisha Porter, who was living in France at the time of the theft and at the time of trial. Prior to moving to France, Porter lived in Virginia. She left her car with her stepfather in New Jersey.

In late March and early April 2004, defendant, who is Porter's cousin, lived in the basement of Henry's home. He did not have a key to the house. Either Henry or his wife opened the door for him whenever he needed access. Although he lived in the basement, he was allowed in the area of the home in which Henry and his wife resided. Two sets of keys for the Honda were kept upstairs and a valet key was kept downstairs. About three days after defendant moved from the basement of Henry's home, Henry returned to his home and found that the car was missing. The valet key also was missing.

Henry spoke to his wife. She called her daughter in France. Henry then called France and spoke with his stepdaughter. After those conversations, Henry went to police headquarters and reported the car stolen. He filed the report on April 3, 2004. A "couple days later," the police told Henry that the Honda had been recovered.

During summation, defense counsel, who had objected to Henry's testimony about his conversations with his wife and stepdaughter, argued that Porter did not testify and had not come to court to say that she did not give someone permission to drive her car. In response, the prosecutor told the jurors the following:

[I]n an ideal world you would like have the owner of the property come in and say I didn't give this guy permission to take the car. And if [Porter] was local that might be a different story but she is in France. And at the time he was living proud and the person who had control and custody of the car was her [stepfather] and he knows whether or not anybody had permission to use the car and he knows the defendant had no permission to use that car. Nobody did.

The prosecutor further argued that "this car wasn't broken into. This car was taken away with a key."

Defendant presents five issue on appeal:

I. The trial court erred by permitting the

State to elicit testimony from the

stepfather of the owner of the vehicle

in question indicating the defendant

took the vehicle without permission,

and that he then reported it stolen to

the police after speaking with the

owner and the owner's mother.

(Partially Raised Below)

II. The Trial Court erred in denying

defense counsel's motion for a judgment

of acquittal regarding the charge of

RECEIVING STOLEN PROPERTY AND THEFT.

III. The trial court erred in ruling that

all of the defendant's prior

convictions were admissible to attack

credibility.

IV. The sentence imposed was manifestly

excessive.

V. Assuming the court does not conclude

that the defendant's sentence was

manifestly excessive based upon a

review of the applicable aggravating

and mitigating factors supported by the

record, the defendant is entitled to a

remand pursuant to State v. Natale.

We consider first whether the trial court erred in denying defendant's motion for a judgment of acquittal.

When examining a motion for judgment of acquittal at the close of the state's case, a court must determine

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.

[State v. Samuels, ___ N.J. ___, ___ (2007) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

"When 'each of the interconnected inferences [necessary to support a finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a whole,' judgment of acquittal is not warranted." Ibid. (quoting United States v. Brodie, 403 F.3d 123, 158 (3d Cir. 2005)). We apply the same standard in determining whether the trial court erred in denying a motion for judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964); State v. Jiminez, 257 N.J. Super. 567, 573 (App. Div. 1992); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979) (requiring, as a matter of federal constitutional law, the same quality of evidence to support a conviction).

After reviewing the record, we conclude that the evidence was adequate to permit a reasonable juror to find each element of the crime of receiving stolen property beyond a reasonable doubt. The crime is defined as follows: "A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. . . . 'Receiving' means acquiring possession, control or title, or lending on the security of the property." N.J.S.A. 2C:20-7a. Viewing the evidence presented in the light most favorable to the State, it was adequate to permit a reasonable juror to find that defendant had knowledge of Henry's right to control the use of the Honda he was driving and no permission to drive it. His flight after the officer asked him to turn the car engine off permitted the inference that he knew that the car had been stolen. See Jiminez, supra, 257 N.J. Super. at 569-70, 573 (affirming the denial of a motion for judgment of acquittal on a charge of receiving a stolen motor vehicle under similar facts).

Although the evidence was adequate to permit a jury to return a verdict of guilty, defendant was deprived of his constitutional right to confront the witnesses against him when Henry was permitted to testify that he reported the Honda stolen after he spoke with his wife and his stepdaughter. See State v. Bankston, 63 N.J. 263, 269 (1973); U.S. Const. amend. VI; N.J. Const. art. I, 10. Although Henry did not repeat what his wife and stepdaughter said, the "inescapable inference," and indeed the only reason that explains the State's interest in offering that testimony over defendant's objection, was that through these conversations Henry learned that neither woman had given defendant or anyone else permission to drive the car. See Bankston, supra, 63 N.J. at 271. "Thus the jury was led to believe that [these women], who [were] not present in court and not subjected to cross-examination, had" relayed information relevant to prove that the Honda had been stolen, which amounts to a deprivation of the right of confrontation. See ibid.; State v. Hodde, 181 N.J. 375, 384 (2004) (holding that a conviction for receiving stolen property requires proof that the property is stolen).

The State argues that Henry's testimony about his conversations with his wife and stepdaughter was not hearsay because its was offered to show that Henry "wanted to be prudent by checking to make sure permission had not been granted by his wife or even his stepdaughter in France before making a formal complaint to the police." The argument carries its own refutation. The inference the State suggests is one that is impermissible that persons not present for cross-examination gave information relevant to guilt. See Bankston, supra, 63 N.J. at 268, 271 (noting that a police officer may explain that he approached a suspect based "upon information received" but may not give testimony, "the logical implication" of which, is to lead "the jury to believe that a non-testifying witness has given" evidence relevant to guilt). If there was no evidence giving rise to that inference, a reasonable juror might well have entertained a reasonable doubt about whether the Honda was stolen or whether defendant knew that it was stolen.

This court is required to disregard error that is "harmless," i.e., "clearly incapable of producing an unjust result." State v. Castagna, 187 N.J. 293, 312 (2006); see R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). "'[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'" Castagna, supra, 187 N.J. at 312 (alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)).

The competent evidence in this case was not sufficient to permit us to conclude, beyond a reasonable doubt, that the jurors would have returned the same verdict without the hearsay that allowed them to infer that neither defendant's aunt nor cousin gave defendant or someone else permission to use the Honda. In summation the assistant prosecutor relied on Henry's testimony about his conversations with his wife and stepdaughter to suggest that the car was stolen. He argued: "[Henry] knows whether or not anybody had permission to use that car . . . . Nobody did." He presented that argument in response to defense counsel's suggestion that the jurors find reasonable doubt based upon the State's failure to present testimony from Porter to establish that she did not give anyone permission to drive the car. While the evidence was adequate to permit a conviction, we cannot conclude, beyond a reasonable doubt, that the jurors would have found defendant guilty if the hearsay relevant to theft had been excluded. Accordingly, defendant's conviction for receiving stole property is reversed.

Although we are unable to conclude that the hearsay testimony had no impact on defendant's conviction for receiving stolen property, we are convinced beyond a reasonable doubt that the error was clearly incapable of influencing the jury's verdict on resisting arrest. The evidence of defendant's guilt of that crime was overwhelming and the impermissible hearsay was irrelevant to that conviction, which depended upon defendant's actions after the officer directed him to turn off the car. Indeed, defendant does not argue that admission of this hearsay requires reversal of his conviction for resisting arrest.

The remaining issues raised in defendant's brief do not require extended discussion. Our review of the record convinces us that the argument presented in Point III lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because we reverse defendant's conviction for receiving stolen property, we need not discuss the sentence imposed for that crime. For the crime of resisting arrest, defendant received a sentence in excess of the then-presumptive term, which was based upon the trial court's finding of the aggravating factors enumerated in N.J.S.A. 2C:44-1a(3), (6) and (9). The Supreme Court's decision in State v. Natale, 184 N.J. 458, 495-96 (2005), requires a remand. See State v. Thomas, 188 N.J. 137, 153 (2006) (noting that remand is required even when the sentence is based upon the factors specified in N.J.S.A. 2C:44-1a(3), (6) or (9)).

Defendant's conviction for receiving stolen property is reversed and the sentence for that crime is vacated; his conviction for resisting arrest is affirmed and his sentence for that crime is remanded.

 

Following trial, charges for violations of the motor vehicle laws arising from the same incident were tried to the court. No issues related to those charges or the sentence imposed are raised on this appeal.

We also note that the State's case was largely premised upon evidence that defendant had an opportunity to take a key to the car and that both were found to be missing after he left the Henry residence. The State, however, presented no evidence to establish that the car was taken with a key. The prosecutor's arguments to the contrary were not based upon evidence adduced at this trial. See State v. Frost, 158 N.J. 76, 85 (1999) (noting that "[p]rosecutors should not make inaccurate legal or factual assertions during a trial").

(continued)

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A-0797-05T4

February 26, 2007