STATE OF NEW JERSEY v. TERRY MURRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2073-07T42073-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY MURRAY,

Defendant-Appellant.

___________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0144,

Timothy R. Smith & Associates, L.L.C., attorneys for appellant (Timothy R. Smith, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant, Terry Murray, was convicted of third-degree theft by failure to make the required disposition of property received, N.J.S.A. 2C:20-9. He was sentenced to an eighteen-month term of probation and ordered to pay restitution of $5,594. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

Defendant was a wrestling coach and guidance associate at Elizabeth High School. As head coach, a position to which he was promoted in 2000, defendant ran an annual wrestling tournament each January, known as the Minuteman Classic Wrestling Tournament (Minuteman Tournament or Tournament), in which area high schools participated upon payment of a fee collected by defendant. The Tournament was a fundraiser for the high school's wrestling program, whose season ran from the Friday after Thanksgiving to sometime in mid-March, ending with the State championships in Atlantic City. Monies were raised from participation fees and refreshments sold at the Tournament and were used to fund summer wrestling camps, t-shirts, trophies, team dinners, and for other team purposes. In November 2004, shortly after the school administration declined to renew defendant's coaching contract for other reasons, an investigation commenced into defendant's handling of Tournament funds. On April 14, 2005, the Elizabeth Board of Education (Board) passed a resolution terminating defendant's employment as a guidance associate. On February 17, 2006, defendant was indicted for third-degree theft by failure to make required disposition and third-degree theft by unlawful taking. The State charged that defendant did not properly dispose of some of the fees he obtained for the Tournament but instead deposited checks he received from other high schools into an unauthorized bank account, rather than a school-approved account and then utilized some of these funds for personal, non-school uses.

According to the State's proofs at trial, coaches at Elizabeth High School are appointed for one-year terms and receive an annual stipend. Their contracts are renewable annually. Raymond Korn, a teacher in charge of athletics for the Board, is responsible for, among other things, hiring coaches. In addition, with the aid of two assistants, he supervises approximately 120 coaches and trainers. In 2000, Korn was part of a committee that promoted defendant from an assistant wrestling coach to head wrestling coach after determining that he was the best candidate for the position.

According to Korn, Michael Scarpato was hired as principal of Elizabeth High School during the 1999-2000 school year, brought in James Occhipinti as the school accountant in charge of the Student Activities Fund (Fund), and instituted changes as to the collection of fees and handling of money by the various student clubs and teams. Under the new policy, coaches were no longer permitted to deposit fundraiser monies into private, personal bank accounts, as they apparently did in the past. According to Occhipinti, by the time he began working at the high school in 2000, athletic coaches were no longer maintaining their own accounts with respect to athletic funding. He had "heard that somewhere along the line that they were and it had ceased but that was long before I got there[.]"

Under the new policy, anyone organizing a fundraiser was required to go to the Student Affairs Office to fill out a form indicating what the fundraiser was for and how much money was anticipated. The form was then sent to the Board for approval. Upon approval, a sub-account within the Fund was opened under Occhipinti's supervision. The Fund included sub-accounts for about eighty different clubs and athletic organizations, including the high school's wrestling team.

Each organization had its own unique, identifying sub-account number; the wrestling team's number was 101. In order to obtain money from the wrestling sub-account, the coach would fill out a request form and after the request was approved by the principal, Occhipinti would issue a check from the appropriate sub-account in the Fund. Also, a coach could pay for an item first and be reimbursed for the cost. Additionally, "any fund-raiser or any monies that were going to be raised by any coach during the course of the year would have to be deposited . . . with Mr. Occhipinti. . . ."

Scarpato sent written notice of the new policy to the athletic department, specifically Korn, who then conducted meetings to instruct and notify all head coaches of the new policy. Korn believed he met with defendant to inform him of the policy but that he didn't "recall telling him exactly" and said that there were "mentoring" meetings where he "would just inform [defendant] of regulations that he should be following[.]" Moreover, the meeting at which the policy was discussed was attended by all head coaches, which would include defendant. When pressed further by the defense, Korn said that the "only thing I can tell you, counselor, to help you is that he did open up [a sub-]account and there was money being put into the [sub-account called Elizabeth Wrestling] up until the last year. So he knew about the policy because he was following procedure."

Occhipinti also assumed defendant was aware of the new policy since he was complying with it on occasion. Occhipinti dealt with defendant on the wrestling sub-account, when defendant would turn over funds for deposit and submit signed payment request forms seeking reimbursement for wrestling program expenditures. According to Occhipinti, he received from defendant entry fees from local schools participating in the Minuteman Tournament in 2000 and 2001, and again from July 2002 through June 2003. However, he received no funds for deposit in the wrestling account during the 2001-2002 school year, and only one deposit from July 2003 through December 2004.

Defendant's non-compliance with school policy came to light only after his termination as head wrestling coach in November 2004, for other reasons. Those other reasons are catalogued in a series of semiannual evaluations beginning in defendant's March 24, 2003 end-of-year review. At that time, defendant received a "satisfactory" score in care of equipment, record keeping, safety, dress, discipline of the team, knowledge of the sport, supervision of assistant coaches, coach-player relationship, and cooperation with the supervisor. The evaluation also noted defendant's weaknesses, which included failing to inform the athletic department of what was happening in the wrestling program and failing to detail with documentation the funds coming in and out for the Minuteman Tournament.

Sometime thereafter, in January 2004, a committee consisting of Korn, Korn's supervisor, the Division Director, and others from Korn's athletics office met to discuss concerns over defendant's practices regarding athlete eligibility and physicals. As a result of that meeting, it was decided that Korn would mentor defendant on a weekly or biweekly basis to help him go "in the right direction." However, defendant only attended a couple of mentoring sessions.

At defendant's mid-year evaluation on January 21, 2004, Korn expressed concern over why defendant charged differing amounts to schools participating in the Minuteman Tournament, instead of a uniform fee. Other complaints were voiced about defendant's performance, including failing to take the team to a hydro test in advance of a match and to show up for a "quad match," canceling games, failing to provide proper physicals for students, and permitting a student with Crohn's disease on the freshman football team, which defendant also coached.

At his end-of-year evaluation on April 22, 2004, defendant received a satisfactory score for equipment, proper dress, discipline of the team, knowledge of the sport, supervision of assistant coaches, and his coach-player relationship. However, he rated unsatisfactory in organizational skills, record keeping, attention to safety, cooperation with supervisors, and attention to athletic department procedures. Korn listed defendant's weaknesses: "he [didn't] always follow district policies, fail[ed] to provide accurate information to the athletic department, schedul[ed] matches without conferring with the athletic department, [and] allow[ed] athletes to participate without receiving a final approval from the district medical examiner . . . ."

Despite his concerns over defendant's administrative abilities, Korn nevertheless recommended, with reservations, defendant for reappointment as head coach. However, because of continuing problems with failing to turn in rosters and sports physicals, and canceling games, Korn informed defendant in November 2004 that his coaching contract would not be renewed. Thereafter, assistant coach Adam Acquilina assumed the position of head wrestling coach.

When Acquilina later requested funds to purchase a mop and pail to clean the wrestling mats, it was discovered that the balance in the wrestling sub-account was only $298.93 through December 2004, instead of the $3,000 to $4,000 amount Korn assumed to be there from the funds raised by the Minuteman Tournament. Korn brought this discrepancy to the attention of the principal, who informed Korn to contact the participating schools and request copies of their cancelled checks.

Upon receipt, Korn discovered that the participating schools' checks never went to Occipinti or the school's bank account with Wachovia Bank. Instead, the checks were endorsed either by defendant or by "Elizabeth Wrestling" and were deposited in a Commerce Bank account in Rahway. However, Elizabeth High School did not have an account with Commerce Bank; rather all Board accounts were maintained only with Wachovia Bank. Korn reported this information to Scarpato, who then went to the Board's Superintendent. Korn subsequently met with Jennifer Barrett, the Assistant Superintendent of Schools, and Aida Garcia, the Director of Human Resources, in January 2005, regarding the missing funds.

On January 26, 2005, Garcia and Barrett met with defendant, who was still employed by the Board as a guidance associate, to ask him about the Commerce account and if he knew who opened the account. Defendant denied any knowledge of the Commerce bank account, claimed he never deposited any checks into that account, and stated he did not know who opened the account or whose name was on the account. Defendant admitted to handling checks for the Minuteman Tournament, but stated that he gave those checks to Occhipinti.

The matter was referred to the Union County Prosecutor's Office. Detective Cassie Kim of that office received account records from the Commerce Bank account from the time the account was opened to present, which included monthly bank statements, deposited checks, and checks issued from the account. Additionally, Kim obtained a printout of the Fund's wrestling sub-account from Occhipinti and monthly financial reports and request for disbursements from the Fund from July 2000 to April 2005. Based on the documentation obtained from Commerce Bank, Detective Kim learned that defendant opened an account on November 9, 2001, in the name of "Minuteman Classic," listing his home address in Rahway, his occupation as a "wrestling coach, self employed," and stating his business type was "sole proprietorship." Checks and cash were deposited into the account from November 2001 through July 2005. According to Kim's review, the amount of checks deposited into the account from various schools, related to wrestling and the Minuteman Tournament, was $7,380.00. The total amount deposited, including monies unrelated to wrestling, totaled $47,392.65.

In her review, Kim credited defendant for any checks written by him on behalf of the wrestling team or Elizabeth High School. Furthermore, checks written by defendant from the account unrelated to wrestling totaled $15,855.09. Additionally, there were numerous ATM withdrawals and debit purchases, which Kim did not include in her trial charts since they were notated on the bank statements. A total of thirty-six checks were written from the account and there were 573 debit or cash withdrawals made from the Commerce account. After deducting the total amount of checks written on behalf of the wrestling team from the total amount of checks deposited on behalf of the wrestling team, Kim determined there was $5,594.40 remaining in defendant's account that should have been returned to the Board. Based on this evidence, the jury found defendant guilty of theft by failure to make the required disposition of Tournament funds.

On appeal, defendant raises the following issues:

I. THE STATE SHOULD NOT HAVE BEEN PERMITTED TO INTRODUCE EVIDENCE BASED NOT ON PERSONAL KNOWLEDGE, BUT UPON SPECULATION. (Partly Raised Below).

II. DEFENDANT'S JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. THE STATE DID NOT SHOW THAT DEFENDANT WAS AWARE OF THE EXCLUSIVITY OF THE NEW PROCEDURES, DID NOT SHOW THE LEGAL VALIDITY OF THOSE PROCEDURES AND FAILED TO IDENTITY DEFENDANT DURING ITS CASE IN CHIEF.

III. THE STATE'S REBUTTAL TESTIMONY WAS IMPROPER BAD CHARACTER EVIDENCE. (Not Raised Below).

IV. THE COURT FAILED TO CHARGE AN ELEMENT OF THE CRIME OF THEFT BY FAILURE TO MAKE THE PROPER DISPOSITION OF PROPERTY RECEIVED BY OMITTING TO CHARGE THE JURY THAT DEFENDANT HAD TO HAVE INTENDED TO PERMANENTLY DEPRIVE ANOTHER OF THE PROPERTY. (Not Raised Below).

V. THE TRIAL COURT SHOULD HAVE ISSUED A CLAWANS CHARGE, AND ALLOWED DEFENDANT COUNSEL TO MAKE A CLAWANS ARGUMENT OR, AT THE LEAST, ALLOWED DEFENSE COUNSEL TO MAKE A COMMENT THAT THE ABSENCE OF SCARPATO AS A WITNESS CONSTITUTED A LACK OF EVIDENCE.

VI. THE TRIAL COURT'S RESPONSE TO THE JURY'S REQUEST FOR CLARIFICATION OF THE CHARGE WAS ERRONEOUS. (Not Raised Below).

VII. THE DOCTRINE OF CUMULATIVE ERROR SHOULD RESULT IN THE REVERSAL OF DEFENDANT'S CONVICTION.

We address these issues in the order raised.

I.

Defendant contends that Korn's testimony as to when Scarpato became principal and instituted the policy change, the contents of the new policy, and defendant's awareness of same, is inadmissible as hearsay and rank speculation. We disagree.

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Generally considered "untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), hearsay "is not admissible except as provided by these rules or by other law." N.J.R.E. 802. The prohibition of hearsay evidence "ensure[s] the accuracy of the factfinding process by excluding untrustworthy statements, such as those made without the solemnity of the oath, and not subject to cross-examination

. . . or the jury's critical observation of the declarant's demeanor and tone." State v. Engel, 99 N.J. 453, 465 (1985). "For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Hightower, 120 N.J. 378, 410 (1990) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

Here, Korn did not testify as to any out-of-court statement of another, but rather as to facts within his personal knowledge. The commencement of Scarpato's tenure as principal and the timing of the consequent change in school policy were not reliant on the extra-judicial statements of non-testifying declarants, but instead on the testifying witness' own observations and recollection. Nor does the fact that Korn may not have been able to recall the exact date of Scarpato's appointment or of the policy's implementation implicate the competency of his testimony or render it impermissibly speculative. Indeed, such a consideration relates not to admissibility, but to the weight to be accorded the evidence, which the jury is bound to determine. State v. Rhoda, 206 N.J. Super. 584, 594 (App. Div.) ("It is for the trier of fact to determine the probative value of that testimony."), certif. denied, 105 N.J. 524 (1986)).

The same rationale applies to the witness' iteration of the school policy which he was charged with implementing and his perception of defendant's awareness of that policy. As to the former, "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." N.J.R.E. 602. "A person who has no knowledge of a fact except what another person has told him [or her] does not, of course, satisfy the present requirement of knowledge from observation." Neno v. Clinton, 167 N.J. 573, 585 (2001) (citing McCormick on Evidence 10 (5th ed. 1999)). Here, Korn, by virtue of his official responsibilities, was in a position to have first-hand knowledge of school policy. Having received written notification of the change in policy, Korn then informed the head coaches under his supervision of this fact. His testimony to this effect simply does not constitute hearsay.

Nor was Korn's testimony as to defendant's knowledge of school policy improper. To be sure, a witness' testimony may not be based on mere speculation. Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). Here, however, Korn's testimony was based on his personal interactions with defendant. While he may not have recalled specifically informing defendant, in particular, of the change, Korn testified that he announced the policy change at a meeting attended by all athletic head coaches at Elizabeth High School. Korn also testified that he had several "mentoring" meetings with defendant at which he would inform defendant of various regulations with which defendant was obligated to comply. Furthermore, Korn was aware that defendant had opened the requisite wrestling sub-account with Occhipinti, into which he deposited some Tournament checks, and therefore reasonably inferred defendant's knowledge of the policy.

Korn's testimony was not the only evidence from which defendant's knowledge of the policy change could reasonably be inferred. Occhipinti testified that while he never informed defendant of the policy change, defendant had previously provided him with cash deposits of Tournament profits, delivered entry fees checks from some of the participating schools, and submitted payment requests to him. Moreover, Aida Garcia testified that defendant had denied any knowledge of the Commerce account and represented that he submitted all checks to Occhipinti. Accordingly, there was no error in the admission of Korn's testimony tending to establish circumstantially defendant's awareness of school policy.

II.

In denying defendant's motion for judgment of acquittal at the close of evidence, the trial judge ruled:

Taking into account, number one, the evidence indicating--there is evidence from which the jury could conclude that the defendant knew that the monies should have been deposited into the school activity account, [the defendant's] false exculpatory, the commingling of the funds in a separate account. The fact that on the bank opening statement he is not listed as a school employee but rather as a sole proprietor, the two months in question that the detective testified about, the totality of the circumstances and giving the State the inferences that they are entitled to under [State v.] Reyes [, 50 N.J. 454, 458-59 (1967)] the motion is denied.

On appeal, defendant contends it was error to deny his motion because the State failed to prove: (1) the new accounting method was the exclusive means of dealing with athletic program funds; (2) the new policy was validly implemented to create a "known legal obligation"; and (3) defendant's identity. These arguments are all without merit.

In reviewing a motion for acquittal based on insufficient evidence pursuant to R. 3:18-1, an appellate court applies the same standard that binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). Thus, under Reyes, supra, a motion for judgment of acquittal will not be granted where:

[V]iewing 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.

[50 N.J. at 459].

In this regard, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).

To find a defendant guilty of theft by failure to make required disposition of property received, the State is required to prove the defendant: "(1) purposely obtained or retained property upon agreement or subject to a known legal obligation to make specified payment or other disposition, (2) dealt with the property obtained as his own and (3) failed to make the required payment or disposition." State v. Kelly, 204 N.J. Super. 283, 287 (App. Div. 1985).

Here, there was sufficient evidence from which the jury could reasonably infer that defendant knew of his legal obligation to turn over all Tournament funds to the school accountant, but instead used the funds as if they were his own by commingling them with his personal monies to pay for expenses unrelated to wrestling. In fact, even after he was informed that his coaching contract would not be renewed, defendant never turned over the Tournament fees he collected to the school accountant as required by school policy.

There was also sufficient evidence for the jury to infer that the policy was validly enacted and amounted to a "legal obligation" under N.J.S.A. 2C:20-9. The policy was adopted by the principal of the high school under the authority vested in him by the Board, enforced by the school accountant, implemented by the school athletic director, and complied with, albeit irregularly, by defendant himself.

As for defendant's identity, suffice it to say, identification was never an issue at trial, cf. State v. Green, 86 N.J. 281, 287-90 (1981), and in any event, several witnesses, all co-workers of defendant, expressed their familiarity with defendant. Accordingly, there was ample record evidence to identify defendant as the head coach of the high school wrestling team and holder of the Commerce bank account into which he deposited entry fee checks.

III.

Defendant next challenges the State's admission of specific instance "bad" character evidence on rebuttal under N.J.R.E. 405(a). This argument also lacks merit.

At trial, the defense called several character witnesses who testified that defendant did an excellent job running the Minuteman Tournament, was an excellent coach, and had a good reputation for honesty, trustworthiness, and integrity. The State presented a rebuttal witness, Lory Estefa, the former school nurse, who offered her opinion that "[t]here are times [defendant was] dishonest with dealings with sports physicals, especially with forms" and that he was not truthful. There was no objection raised to this testimony and instead, on cross-examination, in an attempt to show Estefa's ill will towards defendant, counsel inquired whether there were other reasons, aside from the sports physicals issue, for her opinion of defendant's dishonesty. Estefa answered "yes" without elaboration. On re-direct, Estefa was asked, "[w]hy don't you tell us about those?" She then testified that defendant submitted forms that were to be signed by students' parents which she believed were forged by the defendant since he returned these documents within five or ten minutes of her giving these documents to him, as "[its] impossible for a parent to be here in five or ten minutes to sign this." She also testified that defendant once submitted a stack of permission forms that were signed by "different signatures, but the same pen, and similar handwriting." Defendant voiced no objection to this testimony as impermissible character evidence. Although a general objection was lodged, it appears related only to Estefa's testimony that the signature on these forms was defendant's.

"Under R. 1:7-2 an objection to a question or line of questions is essential to reserve questions for review." State v. Douglas, 204 N.J. Super. 265, 274 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). This is particularly so since a trial court's evidentiary rulings are entitled to deference and will only be overturned on a showing of an abuse of discretion. State v. Brown, 170 N.J. 138, 147 (2001) (internal citations omitted). Accordingly, we view the N.J.R.E. 405(a) challenge on appeal under the plain error standard, Rule 2:10-2, namely whether the error is of such a nature as to have been clearly capable of producing an unjust result. Green, supra, 86 N.J. at 289.

Under N.J.R.E. 405(a), "[s]pecific instances of conduct not the subject of a conviction of a crime shall be inadmissible" to prove character. Thus, Estefa's reference on redirect to specific incidents involving defendant would ordinarily be inadmissible. However, under the doctrine of "invited error", "any errors [ ] 'induced, encouraged or acquiesced in or consented to by defense counsel' . . . may not be the basis for reversal." State v. Johnson, 216 N.J. Super. 588, 602 (App. Div.) (citing State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974), certif. denied, 65 N.J. 574 (1974)), certif. denied, 107 N.J. 647 (1987). Also, "[t]he doctrine of 'curative admissibility' provides that when one party introduces inadmissible evidence, thereafter the opposing party may introduce otherwise inadmissible evidence to rebut or explain the prior evidence." State v. James, 144 N.J. 538, 555 (1996) (quoting United States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980)). In other words, this doctrine operates to permit the State to clarify, for contextual purposes, those portions of evidence which are selectively introduced by the defendant. Id. at 554.

Here, any error in the admission of Estefa's redirect testimony was invited by defense counsel's suggestion on cross-examination that there were other reasons for the witness' opinion of defendant's character. Invited by defense counsel, the State simply allowed its witness to elaborate. We find no error, much less plain error, in such testimony.

Any error, in any event, was harmless. Korn had previously testified on the State's case-in-chief, without objection, that there were numerous instances where defendant had failed to provide the proper forms relating to his wrestlers' eligibility to participate. This concern was so great that a committee determined that Korn would "mentor" defendant to ensure his proper compliance with such requirements given the consequences that could result from violation of Board requirements. Further, numerous evaluations of defendant's performance as a coach, specifically noting his failure to turn in such forms or provide proper physicals for student athletes all contextually relevant to explain defendant's relationship with school authorities and the reason for the non-renewal of his coaching position were admitted on the State's principal case without objection. Under the circumstances, therefore, any error in the admission of Estefa's largely redundant redirect testimony was harmless beyond a reasonable doubt.

IV.

Defendant next contends, for the first time, that the court erred in failing to instruct the jury as to an essential element of N.J.S.A. 2C:20-9, namely that he had to have the intent to permanently deprive the rightful owner of the property of that property. We disagree.

In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Upon review, the charge must be "examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Setzer, 268 N.J. Super. 553, 564 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div), certif. denied, 94 N.J. 531 (1983); see State v. Ramseur, 106 N.J. 123, 280 (1987) (internal citations omitted).

Governed by these standards, there was no error, let alone plain error, in the court's jury instructions. The charge given mirrored the Model Jury Charge as well as the language of N.J.S.A. 2C:20-9, neither of which references any requirement of an intent to permanently deprive the owner of his or her property. Model Jury Charges (Criminal), Theft by Failure to Make Required Disposition (Feb. 1993). Nor do the cases relied on by defendant State v. Mahoney, 188 N.J. 359, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006), and State v. Damiano, 322 N.J. Super. 22 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000) recite that requirement as an element of the offense. Rather, all that is required is proof that defendant used the property as his own and failed to make the required payment or distribution. N.J.S.A. 2C:20-9; Damiano, supra, 322 N.J. Super. at 41 ("The heart of the N.J.S.A. 2C:20-9 crime is the actor purposely obtaining or retaining property subject to either an agreement or a known legal obligation to make a specified payment or disposition but then 'deal[ing] with the property obtained as his own and fail[ing] to make the required payment or disposition.'"); State v. Dandy, 243 N.J. Super. 62, 64-65 (App. Div. 1990) (Under N.J.S.A. 2C:20-9, "the initial taking [of the property] is authorized but at a later time a theft occurs when the property is converted to the possessor's own use."); see also Kelly, supra, 204 N.J. Super. at 287. Here, the court's jury charge properly instructed on all the elements of the criminal offense charged.

V.

Defendant also contends it was error to refuse his request for a Clawans charge since the State failed to produce principal Michael Scarpato. We disagree.

In opposing defendant's request for a Clawans charge, the State argued that Scarpato's testimony would have been cumulative and inferior to Korn's testimony and that as a resident of Florida, Scarpato was outside the subpoena power of the State. The prosecutor represented:

He's not particularly within our ability to subpoena as he lives in Florida. When I did contact him about whether he would be willing to return from Florida and testify in this case, he advised me that unless the Board of Education paid for him as a workday to come back and testify since he was still taking sick time he would not come back, and since the Board of Education was already in their position paying him as a sick day they weren't going to pay him anymore money to come back and testify. He was, to put it mildly, rather hostile to the State, even though I said what about if we pay for your expenses in coming up here, pay for your plane fare and if you have to stay in a hotel here. He didn't want to hear that. All he wanted to hear was that the Board of Education was going to pay for his time here which is nothing I can control.

The trial judge, relying on State v. Velasquez, 391 N.J. Super. 291 (App. Div. 2007), denied defendant's request, finding that Scarpato's testimony would be cumulative and inferior to the record evidence since it was Korn rather than Scarpato who would have disseminated the policy to defendant. The judge also found that defendant failed to properly inform the State, after it rested, that he intended to request a Clawans charge. Lastly, the judge noted "that [Scarpato] has not been very cooperative with the State, and has been somewhat hostile to them about coming up to testify. . . ." We agree.

Where certain conditions are met, it is permissible to give an adverse inference or Clawans charge to the effect that the jury "may infer from the non-production of a likely witness that his testimony would have been unfavorable to the party expected to produce him." Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 601 (2008); see Clawans, supra, 38 N.J. at 170 ("[F]ailure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him."). Such an instruction is appropriate where:

[T]he court first determines on the record (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986).].

"For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Clawans, supra, 38 N.J. at 171. Clawans defines "availability" in terms of whether the witness "was within the power of the party to produce." Witter by Witter v. Leo, 269 N.J. Super. 380, 392 (App. Div. 1994) (quoting Clawans, supra, 38 N.J. at 171), certif. denied, 135 N.J. 469 (1994). "The failure to call a witness available to both parties has been said to preclude the raising of an inference against either." Clawans, supra, 38 N.J. at 171.

"Whether a litigant seeks to have the court instruct the jurors on this adverse inference or to urge the inference in closing argument, the trial court has the responsibility to determine if the inference is reasonable under the circumstances of the case." Velasquez, supra, 391 N.J. Super. at 306. On this score, a trial court "must demonstrate that it has taken into consideration all relevant circumstances by placing, on the record, findings" of the four elements, discussed in Hickman. State v. Hill, 199 N.J. 545, 561, 566 (2009) (holding that a Clawans charge should generally not be issued against a criminal defendant as it "risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt").

"A court should not start with the assumption that an absent witness's testimony must be favorable to either one side or the other and an adverse inference must arise against either." Valasquez, supra, 391 N.J. Super. at 308. "It is well-settled that a court should evaluate a litigant's decision to do without a witness by considering the 'person,' who is the witness, and the content of his or her expected 'testimony.'" Id. (quoting Parentini v. S. Klein Dep't Stores, Inc., 94 N.J. Super. 452, 456 (App. Div.), certif. denied, 49 N.J. 371 (1967)). When "the testimony to be expected from that witness is unimportant to the litigant's case, cumulative or inferior to testimony already presented on the issue, it is more reasonable to infer that non-production is explained by the fact that the testimony is unnecessary." Id. at 308-09; see also Clawans, supra, 38 N.J. at 171.

Equally important in Clawans was the procedure to be followed in requesting a jury charge for adverse inference.

"[T]he party seeking to obtain a charge encompassing such an inference [was to] advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and demonstrat[e] the names or classes of available persons not called and the reasons for the conclusion that they have superior knowledge of the facts."

[State v. Irving, 114 N.J. 427, 442 (1989) (quoting Clawans, supra, 38 N.J. at 172).]

See State v. Carter, 91 N.J. 86, 128 (1982). The purpose of this procedure is to "provide the party accused of non-production an opportunity either to call the witness or explain his failure to do so." Irving, supra, 114 N.J. at 442.

Applying these governing principles, a Clawans charge was not indicated in this case. First, Scarpato was neither in the exclusive control of, nor uniquely available to, the State. Moreover, the prosecutor offered a reasonable explanation for his absence from the State's case, having nothing to do with the nature or content of his testimony. Further, it was never shown by defendant that the presumed testimony would have been superior to that already utilized in respect to the fact to be proved. See Clawans, supra, 38 N.J. at 170-71; Hickman, supra, 204 N.J. Super. at 414. Lastly, defendant failed to inform the State that he intended to request a Clawans instruction at the close of the State's case and therefore failed to comply with the procedural requirements of Clawans. Under the circumstances, a Clawans charge would have been inappropriate. Given the lack of any basis for the adverse inference, it was therefore proper for the court to have precluded defense counsel from urging the inference in closing argument. Hickman, supra, 204 N.J. Super. at 414.

VI.

Defendant's last contention, assigning error to the judge's clarification of an element of the offense at the jury's request, directly contradicts its position at trial and is, in any event, devoid of merit.

During deliberations, the jury sought clarification of one of the means by which a defendant could satisfy his legal obligation to make specific payments or other disposition, namely "from his own property to be reserved in equivalent amounts." Defense counsel insisted the phrase straight from the Model Charge should remain in the charge as jurors "may determine that [defendant] was entitled to run his own account, that he was entitled to maintain his own account and just keep those equivalent amounts somewhere in there, in that account. And in that case it wouldn't [be] misappropriation." Consequently, the trial judge recharged in pertinent part:

Now number three deals with or describes the agreement or legal obligation and has a couple of different alternatives in it, only one of which would have to be proved beyond a reasonable doubt. One is that the agreement or the legal obligation required the defendant when he received the money pursuant to the agreement or legal obligation to make specific disposition of the property. That might be one type of legal agreement or legal obligation or agreement. To make a disposition from the property itself or in the alternative, or from the proceeds, meaning an agreement where somebody takes the has the agreement would provide that he has to do something with the proceeds from the property rather than the actual property itself. Or the third thing is from that the person who's receiving the property but agrees to reserve his own property in equivalent amounts and then dispose of that.

So there's basically some several different alternatives, and it all depends on what the agreement or legal obligation is. And that's up to you to determine whether or not there was, whether this property was received, whether it was received through an agreement or a legal obligation, and what the legal obligations or agreement required. Did it require the person to receive the property and then dispose of it in a certain manner pursuant to the agreement or legal obligation, to receive the property and then dispose of the proceeds, once again focusing on the agreement or the legal obligation. The third part is whether there was an agreement, if you find there was an agreement or a legal obligation, did it require the person who received that property to reserve some of his own property and then dispose of it in a certain way. So it really depends on what you find the agreement or legal obligation to be.

On appeal, defendant argues the opposite of his trial position, that the above charge was misleading and erroneous. We disagree.

"A court's obligation properly to instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." State v. Alexander, 136 N.J. 563, 571 (1994). Here, the court reinstructed consistent with the law and the Model Jury Charge. The instruction was neither misleading nor confusing. On the contrary, the judge explained the context in which the questioned phrase was used and its relationship to the various other means by which a defendant may satisfy his legal obligation under the statute. Most significant, by affording defendant another alternative to avoid criminal culpability, the language employed was advantageous, not prejudicial, to his cause. Lastly, by insisting on its inclusion at trial, defendant cannot now be heard advocating for exclusion of the challenged phrase. State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966). In sum, the court's clarification of the charge, at the jury's request, was proper.

VII.

Having found no individual errors, a fortiori no cumulative error exists.

 
Affirmed.

The jury was hung on the first count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. A mistrial was declared as to that count, and the State eventually dismissed the charge.

At trial, the State presented a series of witnesses from high schools throughout New Jersey, who testified that checks from their schools, mostly in the amount of $375 but some for $185, had been issued to attend the Minuteman Tournament from 2001 to 2004. These checks were deposited into the Commerce account and endorsed by the defendant in his name or in the name of "Minuteman Classic."

As noted, defendant was informed on April 14, 2005, of a Board resolution terminating his employment as a guidance associate.

State v. Clawans, 38 N.J. 162, 170-72 (1962).

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A-2073-07T4

January 11, 2010