STATE OF NEW JERSEY v. FRANKLIN G. HENRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4485-08T4F4485-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FRANKLIN G. HENRY,

Defendant-Respondent.

_____________________________________________

 

Argued November 9, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-1050.

Karen M. Kazanchy, Assistant Prosecutor, argued the cause for appellant (Edward J. De Fazio, Hudson County Prosecutor, attorney; Ms. Kazanchy, on the brief).

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

PER CURIAM

In this interlocutory appeal, the State challenges a pretrial evidentiary ruling made by the trial court. Defendant Franklin G. Henry was indicted for second-degree eluding, N.J.S.A. 2C:29-2(b). The offense occurred when defendant was pursued by police for the nonindictable offense of shoplifting. Upon application of defendant, the trial court severed the shoplifting charge from the eluding charge and directed that the State could not present evidence of the shoplifting. The court would allow the State to present evidence that the police were pursuing the vehicle based on information received from the store.

We reverse, concluding that the information about the shoplifting was relevant evidence to show the defendant's motive in eluding the police, and was not inadmissible under N.J.R.E. 404(b).

I

On April 7, 2009, the North Bergen Police Department received a call from the security guard at National Wholesale Liquidators who believed that two men had just driven out of the store parking lot after shoplifting. While the security guard initially pursued the two, the police took up the chase. Once the vehicle stopped, defendant was identified as the driver of the vehicle. He was in possession of a knife. Three bottles of champagne from National Wholesale Liquidators were found in the vehicle.

Defendant was indicted for possession of a weapon, N.J.S.A. 2C:39-5(d) (fourth-degree), and eluding, N.J.S.A. 2C:29-2(b) (second-degree). The store filed a complaint against him for shoplifting, a disorderly persons offense.

Defendant moved to sever the shoplifting charge from the indictable offenses and to exclude evidence of the shoplifting pursuant to N.J.R.E. 104(a). The State indicated that it intended to offer the testimony of the cashier and security guard at the National Wholesale Liquidators Liquor Department. The cashier would testify that on the day in question, she saw a man adjust his jacket as though something were falling as he was leaving the store through the entrance. This suggested to her, based on her training and experience, that he had shoplifted. She shared her suspicion with the security guard. The security guard would testify that he also had observed the man adjust his jacket and walk out of the store with another man. He called the police, got in his vehicle, and followed the men as they drove out of the store parking lot. The police picked up the chase.

The trial court granted the motion and barred evidence relating to the shoplifting, including the testimony of the cashier and the introduction into evidence of the champagne bottles. The trial court recognized the relevancy of the shoplifting evidence noting that the shoplifting is "inextricably intertwined with the eluding because the eluding comes exactly right after the shoplifting and any reasonable person can say they eluded because of the shoplifting." However, it excluded the evidence based on a N.J.R.E. 403 analysis, finding that its probative value was substantially outweighed by its prejudicial effect. The trial court did indicate that the security guard would be allowed to testify that based on information he had received from the cashier, he asked the police to stop the car. This was intended to alleviate any impression that the police had acted arbitrarily in giving chase. The trial court also granted the motion to sever, and that decision has not been appealed.

We granted the State leave to appeal this evidentiary ruling and stayed the trial.

II

We note that the trial court based its evidentiary ruling on a Rule 403 analysis, which allows relevant evidence to be "excluded if its probative value is substantially outweighed by the risk" of "undue prejudice," among other factors. Our review, however, indicates that Rule 404(b), governing the admission into evidence of other crimes, wrongs or acts, is more directly applicable here. Since the trial court did not apply the correct standard, we will accord its decision no deference. See State v. Reddish, 181 N.J. 553, 609 (2004) (stating that when a trial court admits evidence under a Rule 403 analysis when Rule 404(b) should have been applied, we owe the trial court's decision no deference, and our review is plenary).

Evidence of the shoplifting constituted proof of other bad acts, and its admission into evidence is governed by N.J.R.E. 404(b). That Rule provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Ibid. However, the Rule permits admission of other-crimes evidence for a number of purposes, including "motive, . . . intent, . . . or absence of mistake or accident," provided "such matters are relevant to a material issue in dispute." Ibid. For other bad acts evidence to be admissible, it must be relevant to a material issue in the case; it must be established by clear and convincing evidence; and its probative value "must not be outweighed by its apparent prejudice." State v. Cofield, 127 N.J. 328, 338 (1992).

In this case, the shoplifting evidence was probative, relevant evidence. The shoplifting played an integral part in the events that gave rise to the eluding charge because it provided the reason for defendant's conduct in eluding the police. It was thus probative on the issues of "motive" or "intent" or the "absence of mistake or accident." See N.J.R.E. 404(b). The proposed testimony of the store personnel combined with the presence of the three champagne bottles would meet the clear and convincing standard.

The probative value of the shoplifting evidence outweighs any prejudicial effect. While the evidence of the shoplifting puts defendant's wrongful conduct before the jury, the offense is a relatively minor one in the whole scheme of criminal law and human conduct; indeed, it is a disorderly persons offense. It is unlikely to engender passion or inflame the jury against defendant. This is not evidence that a defendant was fleeing the scene of an armed robbery where someone had been shot. Thus, the evidence's prejudice is light when compared with its important probative value in explaining why defendant may have been eluding the police.

We recognize that the trial judge sought to ameliorate any prejudice to defendant by allowing the State to merely submit evidence that the police were chasing the car due to information obtained from the store's security guard. While this ruling does allow the State to explain why the police gave chase to defendant's vehicle, it does not permit the State to explain why defendant was eluding the police. This approach may also raise questions in the jurors' minds about what had happened in the store and could lead to inferences that defendant had engaged in worse conduct than shoplifting. While limiting instructions may address those concerns, nonetheless, the court's proposal is designed to leave the jury with the impression that something happened in the store that required the police to give chase to defendant's vehicle, so that in any event, some bad conduct by defendant is inferred. Allowing the shoplifting evidence in this case will give the jury a full and accurate picture of what happened and provide a framework in which to evaluate the eluding charge.

In light of our conclusion that the evidence is admissible under Rule 404(b), we need not decide whether it is also admissible as res gestae evidence, should that concept remain viable in New Jersey law. See State v. Barden, 195 N.J. 375, 395-96 (2008) (declining to decide the debate over "whether res gestae should remain a viable concept" in New Jersey).

Reversed and remanded.

 

State v. Cofield, also imposes the requirement that the other-crimes evidence be "similar in kind and reasonably close in time to the offense charged." 127 N.J. 328, 338 (1992). However, this requirement "is limited to cases that replicate the circumstances in Cofield" relating to possession of drugs. State v. Barden, 195 N.J. 375, 389 (2008) (quoting State v. Williams, 190 N.J. 114, 131 (2007)). Those circumstances are not present here.

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A-4485-08T4

December 11, 2009