STATE OF NEW JERSEY v. STEVENSON JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3515-05T43515-05T4

A-5232-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHEILA JACKSON,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVENSON JACKSON,

Defendant-Appellant.

___________________________________

 

Submitted November 5, 2007 - Decided

Before Judges Lintner and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County,

05-02-0143.

Yvonne Smith Segars, Public Defender, attorney for appellant (S. James Russo, Designated Counsel, of counsel and on the brief in A-3515-05T4; Alison Perrone, Designated Counsel, of counsel and on the brief in A-5232-05T4).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Assistant Prosecutor, on the brief in A-3515-05T4 and A-5232-05T4).

PER CURIAM

These two appeals, which we decide back-to-back, arise from Gloucester County Indictment No. 05-02-00143, which charged both Sheila and Stevenson Jackson with burglary, N.J.S.A. 2C:18-2 (Count One); theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Two); receiving stolen property, N.J.S.A. 2C:20-7 (Count Three); and conspiracy, N.J.S.A. 2C:5-2 (Count Four). Following a three-day trial, a jury found both defendants not guilty of burglary but guilty of fourth-degree crimes of theft, receiving stolen property, and conspiracy. The trial judge sentenced Sheila to a six-month term on the theft and conspiracy convictions, which he ran concurrent with one another. The receiving stolen property conviction was merged with the theft conviction. Stevenson received an eighteen-month term of imprisonment on the theft conviction with a concurrent eighteen-month term on the conspiracy conviction. The receiving stolen property conviction was merged with the theft conviction. Both defendants appeal. We affirm the judgments of conviction but remand to correct the sentences imposed.

Shortly after 6:00 p.m. on the evening of December 17, 2004, Sharon Hampton was returning home from work when she saw a tan car parked at the end of her driveway. She saw defendants in the car. She knew both, having socialized with them in the past. In fact, both defendants had been at Hampton's house the previous night. Hampton stopped and chatted with them, at which time she noticed a television set in the open trunk. She did not recognize the television set at the time and there was no mention of it during their conversation.

Hampton bid defendants goodbye and walked to her house. As she approached, she noticed that motion lights, which should have been activated, did not turn on. When she went to put her key in the door, it swung open and nails fell out. After entering her house, she found the stereo was missing. She went to her neighbors and called 911.

After officers arrived, Hampton re-entered her house and discovered that a twenty-seven inch Phillips Magnavox TV, a VCR, a stereo, a telephone, a computer, and some jewelry were also missing. After telling the officers about her earlier meeting with defendants, she was instructed to call Sheila. Hampton called and asked Sheila whether she found the television in the trash. Hampton told Sheila that the police were at her house and wanted Sheila to return to the house. Both Sheila and Stevenson returned with the television in the trunk. Hampton recognized the television as the one missing from her home. Defendants were placed under arrest.

At trial, Hampton explained that the television was won by her boyfriend at work. At the time, she and her boyfriend were not living together, having had an off-and-on relationship. During the times she and her boyfriend were not living together, the television remained in her house. When asked if the television was her boyfriend's, she replied that "it was at my house . . . [it] was given to me." Hampton estimated that the television had a value of $500. Defendants chose not to testify.

On appeal, Sheila raises the following points:

I. THE TRIAL COURT ERRED IN FAILING TO MERGE ALL THREE OF THE COUNTS OF THE INDICTMENT OF WHICH THE DEFENDANT WAS FOUND GUILTY.

II. THE PROSECUTION FAILED TO DEMONSTRATE THE VALUE OF THE PROPERTY ALLEGEDLY STOLEN AND SO THE DEFENDANT SHOULD HAVE ONLY BEEN CONVICTED OF A DISORDERLY PERSONS OFFENSE.

III. THERE ARE VARYING REASONS WHY THE CHARGE OF CONSPIRACY MUST BE DROPPED.

IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO ABANDONMENT.

Stevenson contends:

I. DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON MISTAKE OF FACT, THEREBY ALLOWING THE JURY TO FIND DEFENDANT GUILTY OF THEFT AND RECEIVING STOLEN PROPERTY EVEN IF IT CONCLUDED DEFENDANT HAD MISTAKENLY BELIEVED THAT THE PROPERTY HAD BEEN ABANDONED. (Partially Raised Below.)

Initially, we note that the State concedes that Sheila's conspiracy conviction should have been merged with the theft conviction. When the criminal objective of the conspiracy is limited to the completed offense, the conspiracy conviction merges with the conviction for the substantive offense because "conviction of the completed offense will adequately deal with the conduct." State v. Hardison, 99 N.J. 379, 386-87 (1985); see also State v. LeFurge, 101 N.J. 404, 421 (1986).

In Point II and Point III Sheila argues that there was insufficient evidence of the value of the stolen property to grade the offense. She asserts that Hampton was not competent to testify as to the value without a foundation that she possessed knowledge of the market or reasonable selling value because she was not the owner of the television. State v. Romero, 95 N.J. Super. 482, 487 (App. Div. 1967). However, contrary to Sheila's argument, Hampton testified that her boyfriend had given her the television, thus establishing that, at the time of the theft, she was the owner. As owner, she was competent to testify as to its value regardless of whether she was generally familiar with the value of like articles. Ibid.; see State v. Hill, 153 N.J. Super. 558, 561 (App. Div. 1977) (holding that owner of stolen mirrors competent to testify as to their value).

Finally, both Sheila and Stevenson argue that the judge erred by not instructing the jury on abandonment. Defendants essentially argue that, because there was evidence that they found the television in the trash, the judge should have instructed the jury on an owner's voluntary relinquishment of ownership or defendants' mistaken belief that the television had been discarded. Defendants, however, mischaracterize the evidence.

Personal property is abandoned where the owner of such property voluntarily relinquishes his proprietary interest in the property to the extent that another person may take possession and assert a superior interest. State v. Hempele, 120 N.J. 182, 212 (1990). Both Sheila and Stevenson contend that evidence presented at trial provided a basis for the trial judge to instruct the jury on abandonment, with Stevenson arguing that the trial judge should have charged the jury with mistake of fact as to abandonment.

Hampton testified that she watched the fully-functioning television the night before and the morning of the theft and unequivocally stated that she did not put the television in the trash. Defendants support their position that there was evidence of abandonment with Hampton's phone conversation with Sheila and Officer Borden's cross-examination testimony regarding the Jacksons' statements made in response to questioning after their arrests.

Q: Is it safe to say that in response to your questioning, they said -- and these are the words in your report. Tell me if they're accurate, please -- the TV that they had was sitting in front of 303 Second Street, and they believed that it was trash. So, they picked it up to take it home?

A: Yes, sir.

Defendants' statements to Borden were the subject matter of legal argument prior to being presented. Borden's testimony was admitted with the following explicit limiting jury instruction by the trial judge:

Patrolman [Borden] will be asked to relate to you statements made by the Jacksons when they were questioned in the police station. This specific testimony is not offered to prove the truth of what the Jacksons told him, that they saw the television sitting in front of 303 Second Street. And you are not to consider it for that purpose. It is being offered by the defense for a different purpose which is the only reason that you may consider it.

The defense contends that these statements presented Patrolman [Borden] with a plausible explanation of how they came into possession of the television set, which explanation was not disproved by information that [was] available . . . to the Patrolman [Borden].

The defense firmly contends that this would have made it incumbent on the police to conduct further investigations to determine whether these statements were true, which would have produced additional evidence.

You may only use the evidence of what the Jacksons told Patrolman [Borden] to determine whether the police had a genuine reason or need to conduct further investigation and the importance of their failure to do so and for no other purpose.

. . . [Y]ou cannot utilize this information to the extent that it is offered for the truth of the statement but merely what the police did with the statement that was given.

Hampton's testimony that she asked Sheila over the phone if Sheila had picked the television up for trash, to which Sheila responded that she had, does not provide support for defendants' positions. Hampton explained that she phrased the question this way "[b]ecause [she] couldn't accuse" Sheila and she did not, in fact, put the television out to trash that day. The testimony was not introduced to prove the truth of the statement but instead as an explanation of the method used by Hampton to advise Sheila that the police were at her home investigating a theft and wanted defendants' presence. Defendants chose not to testify. Accordingly, the judge correctly responded that there was no support in the evidence for a charge on abandonment when Stevenson's counsel requested a jury instruction on mistake of fact regarding defendants' belief the television was discarded. See Massotto v. Pub. Serv. Coordinated Transp., 58 N.J. Super. 436, 438 (App. Div. 1959) (citing Garton v. Pub. Serv. Elec. & Gas Co., 117 N.J.L. 520, 522 (E. & A. 1937)), certif. denied, 31 N.J. 550 (1960).

The judgments of conviction are affirmed. However, both matters are remanded to correct the sentences imposed to reflect the merger of the Count Two and Count Four convictions.

(continued)

(continued)

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A-3515-05T4

November 23, 2007