STATE OF NEW JERSEY v. B.W

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0278-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.W.,

Defendant-Appellant.

________________________________________________________________

December 8, 2011

 

Argued September 27, 2011 - Decided

 

Before Judges Carchman, Fisher and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-09-1464.

 

Paul Casteleiro argued the cause for appellant.

 

William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Meighan, on the brief).

PER CURIAM

Following a jury trial, defendant B.W. was convicted of three counts of second-degree luring, N.J.S.A. 2C:13-6; fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3h, and, as amended, third-degree possession of a destructive device, N.J.S.A. 2C:39-3a. The judge sentenced defendant to an aggregate term of imprisonment of twelve years together with Megan's Law registration, lifetime parole supervision and mandated fines, fees and penalties.

The threshold issue that we must determine is whether the motion judgeerred by denying defendant's motion to sever the luring and possessory weapons offenses. The motion judge1 denied the application, and the various charges were tried together. We conclude that the judge erred, and defendant is entitled to a new trial.

In denying the motion to sever, the judge speculated that at trial, evidence of the possessory offenses would be admissible under N.J.R.E. 404(b), "as evidence of a common plan or scheme in furtherance of the criminal intent vis-[ ]-vis the luring statute." In so deciding, the judge did not perform any N.J.R.E. 404(b) analysis to test, even preliminarily, the bona fides of his rationale. However, as the facts developed at trial, the State failed to establish any plausible nexus between the luring and possessory offenses, as a result of which, the rationale for the original motion proved flawed. In addition, defendant pressed the issue of severance at trial, and all of his subsequent applications were denied.

To place our conclusions in context, we provide a brief description of the facts adduced at trial.

In late 2003 and early 2004, the victims, M.T., J.T. and E.T. (collectively "the children"), lived in an apartment on East Main Street, Tuckerton, with their mother J.V. and father G.T. (collectively the "T. family"). The children were ten years old, nine years old, and six years old, respectively. The other apartment in that building was occupied by P.D. and her family, who were friendly with the T. family. At this same time, defendant lived on Center Street, Little Egg Harbor, approximately one-half mile away. Defendant was not a friend of the T. family.

Defendant met the children at the local laundromat, where the T. family did their laundry. Defendant asked the children questions including what their names were, what grades they were in and who their teachers were. After this first encounter, M.T. saw the defendant at the laundromat regularly when the T. family did their laundry; defendant would always arrive shortly after they did.

Over a period of time, defendant insinuated himself into the activities of the children including playing with them behind the laundromat. These encounters were instigated by defendant rather than the children, and J.V. worried that defendant would speak to her children.

On at least one occasion, defendant brought the children gifts. At the time, defendant offered to show M.T. his van by saying, "I have a gift for you, do you want to go and get it at the van[?]" Another time, he gave the children candy; they told their mother about it, and she had them throw it away outside of defendant's presence.

Witnesses observed defendant talking with the children and giving them gifts. Apparently, these were the only children with whom he maintained a relationship. No one in the T. family ever invited defendant to their home or told him where they lived. Nevertheless, defendant appeared at their home ostensibly to play with the children, only to be rebuffed because the children were scared.

On one occasion, defendant approached J.T. while she was playing outside the Tuckerton Emporium with her friend. Defendant asked J.T. and her friend what they were doing; instead of responding, they went into the friend's house because they were scared.

In April 2004, P.D. observed defendant sitting in his cargo van in the parking lot of the Wawa store, located a short distance from the T. home, every afternoon for a period of two weeks. Defendant remained there for about thirty minutes each day, at the time the children came home from school. J.V. and the children also observed defendant parked at the Wawa. Defendant backed his van into a parking space such that the driver's side door was facing the T. family's apartment.

During this two-week period, P.D. also once saw defendant standing near the Emporium yelling out J.T.'s name. P.D. ran out, found J.T. with her two siblings and told them to get upstairs. After this two-week period, P.D. called the police.

During this same time period, defendant went to the Little Egg Harbor branch of the Ocean County Public Library between five and ten times to use the internet. According to a librarian, defendant sought information on kidnapping statutes in New Jersey and other states. The librarian described defendant's demeanor as "very intense" and "very demanding of [her] attention."

In response to P.D.'s call, Sergeant Christopher Anderson responded by speaking with her. On his way to her home, Officer Anderson observed and then stopped defendant's car. The van had a South Dakota license plate, and defendant presented the officer with a South Dakota driver's license. The officer advised defendant that he was investigating a male fitting defendant's description speaking to children inappropriately.

Later that day, after Officer Anderson spoke with P.D., defendant came to the police station because he was upset about being stopped in reference to speaking with the children. The officer advised defendant he should not speak to children without their parents' permission. He also asked defendant if he could look inside defendant's car; defendant consented.

Defendant's vehicle was a white "boxed style" cargo van. Louvers covered the windows. The walls had padding and the back doors had no inside door handles. Defendant claimed that those door handles had broken, and he had been unable to locate new ones. Defendant had devised a method by which he could open the back door from the inside by pulling on a string.2 A metal grate with an opening in the middle separated the front and back parts of the van. The back of the van contained a cooler with candy, as well as a sleeping bag, pillows, a battery pack and some clothing.

During direct examination of Officer Anderson regarding his search of defendant's van, the following exchange occurred:

Q . . . . [D]id you ask anything else of B.W. at that time?

 

A I believe -- I did ask him I was looking for a weapon. I was told by [P.D.] that her child believed that he had a weapon.

 

Defendant objected to this testimony and moved for a mistrial. The trial court sustained the objection, denied the request for a mistrial and instructed the jury as follows:

THE COURT: All right. The Court will sustain defense's objection. The jurors are to disregard any reference to this witness's statement regarding any weapon so that should not be entertained by you in any capacity.

On May 6, 2004, after further investigation and surveillance, law enforcement personnel arrested defendant and took him into custody. During interrogation, defendant said he "did not do anything" to the children. Defendant admitted that he first met the children in September 2003, gave the children toys and candy, played games with the children and observed the children from the Wawa parking lot. Defendant claimed he was observing the children because he believed J.T. and E.T. were being sexually abused, and that he was on his way to the Division of Youth and Family Services (DYFS) to report his suspicions when he was arrested. Defendant kept a calendar of his encounters with the children and a drawing of where they lived.

A search of defendant's van revealed the following: a police scanner mounted to the ceiling of the van, black rubber gloves, rope in the cargo carrier on top of the van, bungee cords, a knife hanging from the metal grate, twenty-three packs of gum in the console area, a stuffed bunny on the dashboard, a toy alligator on the dashboard, black hats on the dashboard, condoms in the center console, a small telescope, a Valentine's Day card,3 a Spanish-English translator, three Spanish language books, two ski masks in the cargo carrier, a sleeping bag laid out on the floor of the van, some clothes and a tool box. Three motion sensors were mounted on the undercarriage of the van, facing outward and wired to the vehicle; however, law enforcement personnel could not determine what the sensors were connected to because the van was inoperable. The search also revealed some papers, including one containing the telephone number and address for a DYFS office and some legal research on a variety of subjects.

Law enforcement personnel also searched defendant's residence. The front door of defendant's residence had a sign that read:

That which seems obvious was put there for your attention. Smile because you are being watched and watch what you touch . . . . [W]elcome to the bulletin board in hell.

 

A secondary door inside the house was rigged with bungee cords, clothes pins, wire and strings in a manner resembling a trip wire. Inside were three bedrooms, one of which was shut and secured with a hasp and padlock. On the padlocked door was another sign that read:

NOTICE : NO TRESPASSING

Illegal (unauthorized) entry (TRESPASSING) is PROHIBITED

TRESPASSER :

I am not legally obligated to injuries you incur as a result of you're illegal entry into this room [sic].

Translation : Hey, YO . . MORON ; (you)break in, (you)get hurt, SO WHAT

Immediately inside the padlocked room was a handwritten sign that read, "BOO."

Inside the padlocked bedroom, law enforcement personnel found a stun gun, a loaded crossbow leaning against the door, a rifle scope sticking out of the window, smokeless powder on the end table near the bed, a hobby fuse on the floor of the bedroom, various chemicals in a box and various electrical components, including circuit boards and a multimeter. Inside a dresser drawer in the bedroom were carbon dioxide cartridges, some full and some empty; tapes; BB pellets; and an air gun. Downstairs in the house, law enforcement personnel found a workbench containing soldering guns, glue guns and more multimeters.

At trial, Detective Dean Hillman testified as an expert in the field of destructive devices. He opined that certain items found in defendant's house namely, the smokeless powder, used CO2 cartridges, hobby fuse, glue, tape and BB pellets could be used to construct a destructive device called a "cricket," a kind of improvised explosive device. The cricket can be assembled by taking a used CO2 cartridge (which has a small puncture hole in one end), enlarging the existing puncture hole, filling the cartridge with the smokeless powder (or alternatively potassium nitrate, sulfur and carbon, also found in defendant's home), placing the hobby fuse in the hole and sealing the hole with tape or glue. Additional "frag" is created by gluing or taping the BB pellets to the outside of the cartridge. Likewise, the electronic circuit boards could also be used to create a more intricate device. Detective Hillman noted that such a destructive device could be readily constructed from the materials found in defendant's home. However, he conceded that law enforcement personnel found no destructive devices, no evidence of a destructive device being set off in defendant's home, and no evidence that defendant had ever tried to modify his empty CO2 cartridges or fill them with smokeless powder. Detective Hillman also conceded that the CO2 cartridges and BB pellets could be used with an air gun that was found at defendant's home.

At the end of the State's case, defendant moved for a judgment of acquittal on all counts based on insufficiency of the evidence, which the court denied.4

Before closing arguments, defendant objected to the language of the jury charge regarding count four possession of a destructive device arguing that the mere fact of having components of a destructive device should not permit conviction. The judge overruled defendant's objection and instructed the jury that to convict on count four the State must prove beyond a reasonable doubt:

One: that the items recovered from defendant's home . . . constitute parts of an improvised explosive[].

 

Two: the defendant possessed or had under his control [those items].

 

Three[:] the defendant acted knowingly.

 

. . . .

 

In regard to the second element . . . . [the defendant] must know or be aware that he possessed the requisite materials for a destructive device.

On June 28, 2010, the jury found defendant guilty on all counts. Defendant thereafter moved for a judgment of acquittal on all five counts. The court denied defendant's motion.

At sentencing, the State argued that the sentences for luring should run consecutively with the sentences for the possessory offenses:

The reason I do that Judge is that this case was about children. This case was about an attempted luring. This case was not about stun guns or destructive devices. We happened to come upon those during the course of the investigation. They are not at all related to Counts 1, 2 and 3 and ought to be considered as separate and distinct crimes for this Court.

 

[(Emphasis added).]

The judge imposed consecutive sentences on the luring and possessory offenses. This appeal followed.

On appeal, defendant raises the following issues.

I. THE EVIDENCE ON THE LURING CHARGES, COUNTS ONE TO THREE, WAS LEGALLY INSUFFICIENT AND THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND FOLLOWING THE VERDICT

 

II. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN THE CHARGE OF POSSESSION OF A DESTRUCTIVE DEVICE

 

ALTERNATIVELY, THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT IN ORDER TO FIND THE DEFENDANT GUILTY IT HAD TO FIND HE POSSESSED THE ALLEGED COMPONENT PARTS OF A DESTRUCTIVE DEVICE WITH A PURPOSE OR INTENT TO FABRICATE A DESTRUCTIVE DEVICE

 

III. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT REFUSED TO DISQUALIFY JUROR NUMBERS 3 AND 7 AND THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL

 

IV. THE TRIAL COURT IN DENYING THE DEFENDANT'S MOTION FOR SEVERANCE OF COUNTS FOUR AND FIVE FROM THE LURING COUNTS ERRED MANDATING THE REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL

 

V. THE TRIAL COURT IN REJECTING DEFENDANT'S PLEA AGREEMENT ABUSED ITS DISCRETION

 

VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A MISTRIAL FOLLOWING OFFICER ANDERSON'S UNRESPONSIVE TESTIMONY THAT HE WAS LOOKING FOR A WEAPON IN SEARCHING DEFENDANT'S VAN

 

Because we conclude that the motion judge erred in denying the motion to sever the luring and possessory offenses, we need not address Points I, II, III and VI. At the retrial, defendant may move, if appropriate, to dismiss the various extant charges. We do not address the issues raised by Points I and II as any motion to dismiss will be dependent on the nature of the proofs presented by the State during the trial. Likewise, Point III and VI are rendered moot since we are ordering a new trial. We now address the issues raised in Point IV the issue of severance.

Defendant argues that the motion judge erred in denying defendant's motion to sever the possessory weapons offenses from the luring charges. Specifically, defendant argues that the possessory charges are unrelated to the luring charges and that trying all five counts together unduly prejudiced the defendant.

In assessing the motion judge's decision as to whether to sever the counts of an indictment, we review that decision for an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).

Rule 3:7-6 provides that multiple offenses may be charged in the same indictment if the offenses are of the same or similar character, are based on the same act or transaction or constitute parts of a common scheme or plan. However, Rule 3:15-2(b) permits the judge to grant severance if it appears defendant is prejudiced by a joinder of offenses. "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).5

N.J.R.E. 404(b) provides that:

[E]vidence 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. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

The Supreme Court has articulated a four-part test to determine if evidence of other crimes is admissible at trial:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[State v. Rose, 206 N.J. 141, 159-60 (2011) (quoting State v. Cofield, 127 N.J. 328, 338 (1992)).]

 

This test, derived from the seminal Cofield case, protects against the significant danger that a jury may convict defendant for one crime based on evidence of other crimes because he is seen as a bad person in general. Rose, supra, 206 N.J. at 159 (citing Cofield, supra, 127 N.J. at 336).

Here, the trial judge, while relying on Rule 404(b), did not conduct any Cofield analysis. He perfunctorily suggested, however, that the possessory offenses could demonstrate evidence of a common plan, scheme or criminal intent related to the luring offenses and believed the probative value of those offenses outweighed the potential prejudice caused by their inclusion. The consideration of the severance motion required more.

The first prong of the analysis requires relevance and materiality, i.e. "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Rose, supra, 206 N.J. at 160 (quoting N.J.R.E. 401). This standard is a generous one. Ibid. "When an individual's state of mind is at issue, a greater breadth of evidence is allowed" because "mental state is not conducive to demonstration through direct evidence." State v. Williams, 190 N.J. 114, 124-25 (2007).

Even applying a "generous standard," the relevancy between the possessory offenses and luring offenses is tenuous. To prove child luring, the State must prove, among other things, that the defendant acted "with a purpose to commit a criminal offense with or against that child." State v. Perez, 177 N.J. 540, 550 (2003). While in a vacuum, defendant's possession of a stun gun and a destructive device may appear to have some tendency to prove a purpose to commit a criminal offense against the children, the location of the stun gun and destructive device at defendant's home militates otherwise. The State did not charge defendant with attempting to lure the children into a "structure"6 and presented no evidence that defendant attempted to lure the children to his home.7 Furthermore, the reverse proposition that evidence of luring is related to the possessory charges is unavailing. Evidence that defendant attempted to lure the children has no tendency to prove or disprove any fact of consequence to the determination of the possessory charges.

We need not address the second prong as that only applies to cases with fact patterns similar to Cofield, a case involving constructive drug possession where the issue of constructive possession was hotly contested. See Rose, supra, 206 N.J. at 160; Williams, supra, 190 N.J. at 131.

The third prong requires proof of other crimes by clear and convincing evidence. The third prong was satisfied as there was little question that the stun gun and "destructive device" were found in defendant's home.

The fourth prong requires that the probative value of the proffered evidence outweighs its apparent prejudice. The Court has recognized this prong as the most difficult to overcome. State v. Gillespie, 208 N.J. 59, 89 (2011); Rose, supra, 206 N.J. at 160. This prong is "more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." Rose, supra, 206 N.J. at 161. The analysis requires a careful balancing of the competing interests. State v. Barden, 195 N.J. 375, 392 (2008). If other, less prejudicial, evidence can establish the same issue, the balance tips in favor of exclusion. Rose, supra, 206 N.J. at 161; Barden, supra, 195 N.J. at 392.

The motion judge's ruling fails at the first and fourth prongs. As noted above, the probative value of the evidence of possession as related to defendant's criminal intent in regard to the children is problematic; moreover, there is little, if any, probative value of the evidence of child luring with regard to defendant's possession of illegal weapons. However, evidence of possession of illegal weapons is highly likely to unduly prejudice the jury. The State produced other, not unduly prejudicial, evidence of defendant's criminal intent, e.g., the contents of his van and the evidence of his research on kidnapping statutes. Severance was appropriate, and defendant's motion should have been granted.

Finally, we briefly address the issue raised in Point V that the judge erred in rejecting the proposed pre-trial plea agreement entered into by defendant and the State. These are the facts.

Prior to trial, defendant and the State agreed that defendant would plead guilty to possession of a stun gun, and the remaining counts of the indictment, including the luring charges as well as the possession of the destructive device, would be dismissed. In addition, defendant would be sentenced to time served, with the State reserving the right to seek probation. After review of the presentence report, the trial judge rejected the plea. The judge did not offer any reasons other than he was rejecting the plea "[in] the interest of justice." Defendant urges that this was an abuse of discretion.

Rule 3:9-3(e) provides:

If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

 

"In appellate review of judicial rejection of proffered plea agreements, the appropriate standard to be applied must be that of erroneous exercise of judicial discretion . . . ." State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994), certif. denied, 139 N.J. 443 (1995).

In Daniels, the trial court rejected defendant's plea agreement approximately two weeks after receiving his presentence report. Id. at 486. We affirmed the rejection of defendant's plea agreement where "reasons were not placed on record" by the trial court for the rejection, saying "[a]lthough the [trial] court's reason for rejecting the plea agreement should have been more formally communicated, its basis had to be evident upon receipt of the pre-sentence report . . . ." Id. at 486, 488.

Here, the trial judge reviewed defendant's presentence report, and after doing so, notified both defendant and the State via conference call that he was contemplating rejecting the plea agreement. Defendant, with the permission of the trial court, submitted additions and objections to the presentence report for the court's consideration. The State also submitted a response.

While the judge should have articulated more thoroughly his reasons for rejecting defendant's plea agreement, he clearly relied upon the presentence report, as well as submissions from the defense and State. We find no abuse in his discretion.

Defendant relies on State v. Madan, 366 N.J. Super. 98 (App. Div. 2004), for the proposition that the judge must articulate specific reasons for rejecting a plea agreement. However, in Madan, the judge did set forth reasons, but the stated reasoning was erroneous as to both law and fact. Madan, supra, 366 N.J. Super. at 110-14. For example, the trial judge based its rejection in large part on the incorrect belief that the agreed upon sentence was outside of the normal range for aggravated manslaughter. Id. at 113-14. As a result, we concluded that the trial court's reasoning was legally insufficient and an abuse of discretion. Id. at 114-15.

In sum, we find no error here in the judge's rejection of the proposed plea agreement.

We conclude that the motion judge should properly have severed the luring charges from the weapons charges. Accordingly, the judgment of conviction is reversed and the matter is remanded for a new trial. Defendant may renew his motion for severance consistent with this opinion.

R

eversed and remanded.

1 The motion judge was not the trial judge.

2 At trial, defendant produced a witness who explained that the vehicle defendant owned was not manufactured with door handles as it was a "work van."

3 Defendant claimed that E.T. gave him this card; however, E.T. denied it.

4 During the course of the trial, two jurors received phone calls purportedly from defendant. The judge allowed the jurors to remain on the jury. Although the propriety of that decision is raised on appeal, because we reverse and remand for a new trial on other grounds, we need not address the merits of this issue.

5 In its denial of defendant's motion to sever, the motion judge made reference to the doctrine of res gestae in describing the State's position on the matter and said:

 

Here it's argued by the State that . . . . [the possessory evidence] paints a picture and fills out the background information in a res gestae type of setting that allows the jury to view the offenses together, because the State argues they are related in some way and may be related in some way.

 

While the New Jersey Supreme Court abolished res gestae as a basis for admitting evidence in State v. Rose, 206 N.J. 141 (2011), the motion judge here in fact based his decision on N.J.R.E. 404(b), not res gestae. The judge's decision, therefore, need not be analyzed in terms of res gestae.

6 N.J.S.A. 2C:13-6 provides that a person can commit luring by enticing a child into a "motor vehicle, structure or isolated area," yet the indictment makes no mention of "structure."

7 In addition, at sentencing, the State noted that the possessory charges "are not at all related to" the child luring charges when arguing for consecutive sentences.