STATE OF NEW JERSEY v. DONALD ALLEN STILTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4738-05T44738-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD ALLEN STILTON,

Defendant-Appellant.

________________________________

 

Submitted: July 5, 2007 - Decided:

Before Judges Skillman and King.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-06-0903.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On June 29, 2005 defendant, Donald Stilton, was indicted on Ocean County Indictment No. 05-06-0903. Count One charged the defendant with fourth-degree theft by deception, contrary to N.J.S.A. 2C:20-4. Count Two charged defendant with third-degree theft by deception, contrary to N.J.S.A. 2C:20-4. On December 15, 2005 defendant was found guilty in a jury trial; the total value was $916.12. On January 6, 2006 Judge Grasso granted defendant's motion to relieve his counsel.

On March 24, 2006 Judge Grasso denied defendant's motions for new trial, for bail pending appeal, and for a stay of sentence. The judge merged Count One with Count Two and sentenced the defendant to five years in prison.

I

On this appeal, defendant raises these points in his Public Defender's brief:

POINT I - THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL ON THE BASIS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

POINT III - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant also raises these points for reversal in his supplemental pro se brief:

POINT I - TRIAL COUNSEL'S REPRESENTATION OF DEFENDANT WAS INEFFECTIVE, DID VIOLATE ETHICAL PRACTICES, AND VIOLATED HIS GUARANTEED RIGHT TO THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

POINT II - JUDGE ERRED IN DENYING DEFENDANT BAIL WHERE A MANIFEST OF INJUSTICE CLEARLY EXISTED, AND BAIL SHOULD BE GRANTED PENDING THE APPEAL.

POINT III - JUDGE ERRED IN HIS RULING WHICH DENIED DEFENDANT TO CALL AN EXPERT WITNESS WHICH DENIED HIM A FAIR TRIAL AND PREJUDICED HIM.

POINT IV - THE WEIGHT OF THE CREDIBLE EVIDENCE ELICITED DURING THE TRIAL WAS INSUFFICIENT EVIDENCE TO SUPPORT THE GUILTY VERDICT AND MUST BE REVERSED AND DISMISSED.

POINT V - JUDGE ERRED BY ALLOWING THE VIDEO EVIDENCE AND MUST BE REVERSED AND DISMISSED BECAUSE:

A. THE CHAIN OF CUSTODY WAS BROKEN.

B. THE VIDEO EVIDENCE WAS NOT AUTHENTICATED.

C. THE VIDEO EVIDENCE DID NOT ACCURATELY OR RELIABLY DEPICT THE EVENTS RECORDED.

D. THE "BEST EVIDENCE" RULE WAS VIOLATED AS THE STATE PRODUCED A COPY COMPOSITE TAPE WHICH PREJUDICED DEFENDANT AND WAS NOT COPIED FROM THE ORIGINAL IN ITS ENTIRETY NOT ACCURATELY DEPICTING THE ORIGINAL VIDEOTAPE FOOTAGE.

POINT VI - THE JUDGMENT OF CONVICTION IS INCORRECT AND MUST BE AMENDED TO REFLECT JURY FINDING.

POINT VII - JUDGE'S DECISION TO ALLOW THE VIDEO SURVEILLANCE TAPE FROM JANUARY 03, 2005 AT THE END OF THE RULE 104 HEARING WAS ERRONEOUS AND MUST BE REVERSED.

POINT VIII - THE STATE FAILED TO PROVE THEFT BY DECEPTION ELEMENTS AND THE JURY WAS IMPROPERLY INSTRUCTED AS TO COUNTS 1 AND 2 OF THE INDICTMENT.

Defendant raises these additional points in his reply to the State's brief:

POINT I - TRIAL COUNSEL WAS INEFFECTIVE ON RECORD AND AN EVIDENTIARY HEARING SHOULD BE GRANTED TO EXPAND THE RECORD AND PRESENT EVIDENCE PURSUANT TO STATE V. TACCETTA, 351 N.J. SUPER. 196 FOR ISSUES NOT ON RECORD.

POINT II - DEFENDANT'S SENTENCE WAS EXCESSIVE RESULTING FROM TRIAL JUDGE'S FAILURE TO WEIGH MITIGATING AND AGGRAVATING FACTORS PROPERLY WHICH WERE GROUNDED INTO THE RECORD AND APPLY FACTORS APPELLANT WAS CLEARLY ENTITLED.

We find the appeal without merit and affirm without extensive legal discussion. R. 2:11-3(e)(2). We find that the claims related to ineffective assistance of counsel must be raised on a petition for post-conviction relief after an appropriate record can be established. State v. Preciose, 129 N.J. 451, 460 (1992).

II

The State presented evidence from five witnesses and the composite video surveillance tape, S-1, from which the jury could reasonably have found these facts. At 12:39 p.m. on January 3, 2005 defendant entered the Wal-Mart store in Manahawkin with a white box on top of a shopping cart. Defendant went directly to the automotive aisle where he took some items from the shelves and placed them in his cart beneath the white box. He then went to the return counter where he returned two cutwelders and a "Quick-Weld" for a store credit of $685.48, without a receipt. In Wal-Mart those items are displayed in the automotive aisle where defendant had removed them.

Defendant then returned to the automotive department and removed an additional twenty eight items from the shelves which he then purchased using the credit he had received. The total cost of these items was $441.38.

At 5:30 p.m. that same evening, defendant returned to the same store. He entered the store with certain items in a cart. He again walked past the return counter and went to the automotive section. He removed items from these shelves then went to the return counter. Defendant returned a wire, hammer drill, twelve-volt winch, and a six-inch bench grind, with the receipt from the earlier visit. He also returned another "Quick-Weld" without a receipt. Defendant received $478.39 in store credit for the returned items. The dollar amount refunded from the "Quick-Weld" was $269.44. Apparently the jury found defendant guilty on Count One, only as to the "Quick-Weld," referring to the second incident, as they stated the amount of that theft as $269.44 on the verdict sheet. The total verdict was for $916.12.

The defendant testified and offered a version consistent with his innocence. He claimed that at his first visit to Wal-Mart the white box contained items for return and that he did not go directly to the return counter because of the long line. He said that the reason he was returning the welder, the grinder and cutting torches was because they were the wrong kind for his business. Defendant claimed that he left the store with the same white box but admitted that the video tape did not show him with that box while leaving the store.

On the second visit, defendant claimed he was returning other items because of defects. He claimed the "mig wire," purchased after he "returned" the welders on the first visit, was returned because he needed it for the welder he had already returned.

Later that night between 9 p.m. and 10 p.m. defendant redeemed a substantial part of the remaining credit at the Toms River Wal-Mart. The balance of the credit was redeemed by January 8, 2005 in Toms River. Obviously, the jury credited the State's version and rejected the defendant's version.

III

The defendant contends that the State failed to establish defendant's guilt beyond a reasonable doubt. A review of the evidence reveals that the jury could have found defendant guilty beyond a reasonable doubt; there was no plain and obvious failure of the jury to perform its fact-finding function. The verdict was not against the weight of the evidence.

In considering whether a jury verdict was against the weight of the evidence, our task is to decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must sift through the evidence "to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96, 449 A. 2 1280 (1982). But an appellate court may not overturn the verdict "merely because it might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 134, 495 A.2d 1367 (App. Div. 1985), certif. denied, 102 N.J. 312, 508 A.2d 195 (1985). Appellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, supra, 203 N.J. Super. at 134, 495 A.2d 1367. Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced. State v. Haines, 20 N.J. 438, 446-47, 120 A.2d 118 (1956).

[State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).]

In this case the jury saw the videotape of defendant allegedly committing the theft crimes. The jury saw defendant enter the store, pass by the return counter, and go to the automotive section where the item he allegedly "returned" were located. The jury saw the defendant take items from the shelves and place them in his cart. The jury saw the size of the items which were "returned" and could see the items in the cart. The jury heard the evidence, and had receipts which showed defendant "returned" items for which he did not have a receipt and received store credit for them.

On his second visit the jury saw the defendant enter the store with certain items in a cart. The jury again saw the defendant go to the automotive aisle and gather items from the shelves, and proceed to the return counter for an exchange. The jury could evaluate whether the items in the cart were the same items exchanged. The jury also had receipts showing that defendant retuned yet another "Quick-Weld" without a receipt.

The jury then heard defendant's explanation of his actions displayed on the tape. Whether they chose to believe his explanation was a question of credibility. The jury obviously did not find his explanation credible and found him guilty.

The jury clearly rejected defendant's version of his conduct and were entitled to do so. We cannot interfere with the jury's conclusion in this case where it obviously found from ample substantial evidence to convict and rejected defendant's explanation as incredible.

The defendant contends that there was documentary evidence he had a receipt for four of the items he returned. The jury clearly accepted this evidence and did not convict defendant on those four items. This is evident from the jury sheet; the jury noted that the amount for the second incident was $269.44 and not $478.39, the total amount refunded. The jury also found that the two events constituted "one pattern of behavior." This shows that the jury carefully scrutinized the evidence and found defendant guilty only as to those items proven beyond a reasonable doubt. The verdict is especially understandable in the context of counsel's summations which explained the evidence.

We agree with the judge's conclusions expressed in denying defendant's motion to dismiss under R. 3:18 that this was a case for the jury to decide.

THE COURT: Excuse me. Walmart on the date in question. There was testimony by one of the State's witnesses that he had reproduced a still photo from the video which he indicated was an accurate representation of the video, S-8A through V inclusive, which depicts an individual who a jury could reasonably infer looks similar to the defendant seated at counsel table. Coupled with the fact that there was a driver's license also tendered identifying the customer as Donald Stilton.

Upon entry with a shopping cart and a large white box, there is evidence on the video where a jury could reasonably infer that additional items, through the activities observed by this individual, were placed into the shopping cart.

There was testimony from the security officer McCarthy, who identified on the basis of a schematic as well as his own observations that he was in the automotive aisle, and that the type of items returned on the receipt in question were those that could be obtained in that aisle, which were then returned for value.

The jury could reasonably infer that they were taken from the shelves without having previously been purchased or paid for for the purpose of obtaining a refund or gift credit card which would be something of value.

And the jury could infer that it was Mr. Stilton's purpose to deceive Walmart by that conduct in the amount in question.

And that, similarly giving the State the benefit of all the reasonable inferences that could be drawn therefrom, the same logic would go with respect to Count One where there is a second transaction and there is video to support a jury's finding that Mr. Stilton again was in the store in an area that is identified as the automobile aisle with receipts which the State contends had been secured from the first transaction for the same items. And the jury could reasonably infer that he again took items off the shelf and essentially doubled up.

So at this juncture the motion by the defense will be denied. The Court is satisfied there is evidence from which a jury could reasonably make a finding of guilty. And there are receipts with amounts involved which would be a basis for the jury to conclude an amount in an approximate value on one transaction of $451.31 and an amount in another transaction of $646.68. Although the State's proofs apparently at trial was $685.45.

The jury will be permitted, in any event, and be required to making finding on the gradation in addition to the finding as to whether or not the offense was committed. So, I'll deny the motion at this juncture.

IV

The claim for ineffective assistance of trial counsel (now deceased) requires an ample record, not available to us on this trial record. On his papers alone, defendant's claim is very self-serving and unpersuasive but he should have the opportunity to present his contention at a plenary hearing. Again we rely on Preciose, 129 N.J. at 460.

V

As to the claim that the five-year State prison term was excessive, we reject this contention as patently untenable and not amenable to extensive discussion in light of defendant's past record for property crimes and his other contacts with the justice system. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-4738-05T4

July 26, 2007