STATE OF NEW JERSEY v. EDWARD GRAHAM, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0025-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD GRAHAM, JR.,

Defendant-Appellant.

_

November 30, 2012

_______________________________________________________________

Argued September 20, 2012 - Decided

 

Before Judges Simonelli, Koblitz and Lisa.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2308.

 

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).

 

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).

 

PER CURIAM

Tried to a jury, defendant was convicted of the following offenses: (1) second-degree robbery, N.J.S.A. 2C:15-1a(1); (2) simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a(1)1, as a lesser included offense of the indicted charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); (3) third-degree receiving stolen property, N.J.S.A. 2C:20-7; (4) third-degree conspiracy to commit the crimes of tampering with public records, forgery, and motor vehicle title offenses, N.J.S.A. 2C:5-2; (5) third-degree tampering with public records, N.J.S.A. 2C:28-7a(1) and N.J.S.A. 2C:2-6; (6) third-degree forgery, N.J.S.A. 2C:21-1a(3) and N.J.S.A. 2C:2-6; and (7) third-degree motor vehicle title offenses, N.J.S.A. 2C:21-4.8b(1) and (3), and N.J.S.A. 2C:2-6. The offenses occurred on three separate dates.

The conspiracy, tampering with public records, forgery, and motor vehicle title offenses (Counts Four, Five, Six and Seven) occurred on October 8, 2008. The robbery and assault (Counts One and Two) occurred on October 10, 2008. The receiving stolen property offense (Count Three) occurred on October 16, 2008.

After merging Count Two with Count One, the judge sentenced defendant on Count One to seven years imprisonment with an eighty-five percent parole disqualifier and three-year period of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On Count Three, the judge imposed a four-year prison term, to run concurrent with Count One. The judge sentenced defendant on Count Four to a four-year prison term, to be served consecutive to Count One. On Counts Five, Six and Seven, the judge sentenced defendant to four-year terms, each to run concurrent with Count Four. Therefore, defendant's aggregate sentence is eleven years, of which eighty-five percent of the seven-year term imposed on Count One must be served without eligibility for parole, with a three-year period of parole supervision upon release.

On appeal, defendant argues:

POINT I

THE TRIAL JUDGE ERRED IN DENYING GRAHAM'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE ROBBERY CHRAGE BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS OF ROBBERY.

 

A. Based on the Evidence Adduced by the State at Trial, the Theft of the [Expedition] Occurred Two Days Prior to the Assault on Broach and Therefore the State Failed to Prove that the Assault Occurred in the Course of a Theft.

 

1. Theft of the [Expedition] Occurred

Pursuant to N.J.S.A. 2C:20-3, When

Graham Unlawfully Possessed the

Vehicle With the Intent to Deprive

Broach Thereof on October 8, 2008.

2. Theft of the [Expedition] Occurred

Pursuant to N.J.S.A. 2C:20-4, When

Graham Purposely Obtained the Vehicle

by Deception on October 8, 2008.

B. The Evidence Adduced by the State at Trial Proves that Graham Lacked the Requisite Mens Rea to Commit Robbery During the Assault of Broach.

 

POINT II

BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT FAILED TO EXPLAIN TO THE JURY HOW IT COULD FIND GRAHAM NOT GUILTY OF THE GREATER OFFENSE AND GUILTY OF THE LESSER OFFENSE, THEREBY VIOLATING HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)

 

POINT III

THE PROSECUTOR'S STATEMENT INVITING THE JURY TO INFER GUILT BASED ON GRAHAM'S POST-ARREST SILENCE REGARDING HIS ALLEGED ASSAULT AGAINST BROACH VIOLATED HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)

 

POINT IV

THE TRIAL JUDGE ERRED IN FAILING TO MERGE GRAHAM'S CONVICTION FOR RECEIVING STOLEN PROPERTY WITH HIS CONVICTION FOR ROBBERY.

 

POINT V

GRAHAM'S SENTENCE IS MANIFESTLY EXCESSIVE WARRANTING REVERSAL.

 

A. The Trial Judge Erred in Considering Disputed Portions of Graham's Criminal Record in Determining the Aggravating Factors that Applied to His Sentence.

 

B. The Trial Judge's Imposition of Consecutive Terms Was Improper.

We agree with defendant on Point IV and remand for merger of Count III with Count I. We reject defendant's remaining arguments and in all other respects affirm.

I.

Defendant and Corinne Broach began a dating relationship in mid-September 2008. In approximately April 2008, Broach and her mother had purchased a 1997 Ford Expedition for $2,500. Broach and her mother were joint owners on the motor vehicle title, but the vehicle was meant for Broach's use. During her dating relationship with defendant, Broach allowed defendant to use the vehicle.

Beginning approximately October 7, 2008, Broach and defendant began staying at defendant's cousin's residence in Camden. On October 8, 2008, defendant arranged to meet an acquaintance of his, Jaclyn Andrews, at a motor vehicle agency, where they transferred title to the Ford Expedition first to Andrews, and in turn to defendant. They accomplished this by forging the signatures of Broach and her mother on the motor vehicle title, and transferring it into Andrews' name, after which Andrews signed it over into defendant's name.2

Broach and defendant both testified at trial and presented differing versions of the circumstances leading up to the title transfer. According to Broach, she was completely unaware that the title transfer had occurred. She never authorized it, nor did her mother, who also testified at trial. According to defendant, the vehicle was not running and was in need of significant repairs, the cost of which exceeded $1,000. He said Broach was unable to obtain the necessary funds for repairs and he agreed he would pay for the repairs if Broach would sign over the title to him. He claimed she agreed and she signed the title document and signed for her mother. Defendant said he used Andrews as an intermediary to accomplish the transfer because his driver's license was suspended and he did not have proper identification to show at the motor vehicle agency.

Two days after the title transfer, on October 10, 2008, the events underlying the robbery and assault charges occurred at defendant's cousin's house. Defendant and Broach were alone in the house. Broach was in the upstairs bedroom talking on the telephone. From that point on, Broach and defendant described the events that followed very differently.

According to Broach, defendant asked who she was talking to, and she said she was talking to the father of her oldest child. She said defendant became enraged and punched her in the mouth, splitting her lip. She went downstairs to get ice for her lip and then to the basement to get away from defendant. About ten minutes later, defendant went to the basement and began kicking and stomping her on her back, demanding that she leave the house. He pulled her up the stairs, pushed her into the kitchen, and threw her out, locking the door behind her. As they passed through the kitchen, Broach saw her car keys on the kitchen table and attempted to grab them. However, Broach testified at trial that "[defendant] grabbed them before I could, and that's when he kept pushing me, pushing me, pushing me out [of] the house and locked the door."3 About five minutes later, he threw her belongings out after her. About fifteen minutes after that, defendant left the house and drove off in the Ford Expedition. Seeing this, Broach called 911 and reported that defendant had just stolen her car.

Defendant's version of the events at his cousin's house was much more benign. He said that when he confronted Broach about the telephone call, he did not believe she had been talking to the father of her child but was talking to someone else. Based on that, he told her she could no longer stay with him and she had to leave his cousin's house. He said Broach left, taking her belongings. According to defendant, he already had the car keys in his possession. He denied any physical altercation or any grabbing for the keys on the kitchen table. He specifically denied punching Broach in the face, kicking her, or dragging her and physically throwing her out of the house. He said after a short while he left the house and saw Broach outside. He got into the Ford Expedition and drove away.

The police arrived in response to the 911 call. Broach was taken to a local hospital for treatment. Her treating physician testified at trial, corroborating the injuries she suffered, which included the cut lip and contusions to her torso. Investigation conducted by Motor Vehicle Commission personnel revealed that the title transfer was accomplished through forgeries. A handwriting expert testified accordingly at trial. Indeed, not only did the signatures attributed to Broach and her mother not match their handwriting, but Broach's name was misspelled.

The jury obviously believed the version of the events described by Broach and her mother, as well as the testimony of other witnesses presented by the State. The jury accordingly found defendant guilty of the offenses we have previously mentioned.

II.

Defendant first argues that the trial court erred in denying his motion for judgment of acquittal on the robbery charge at the end of the State's case. Essentially, he argues that, under the State's version of the events, the theft of the Ford Expedition occurred on October 8, 2008, when the title documents were fraudulently transferred into defendant's name. Therefore, defendant contends that even if he used force or caused injury to Broach in ejecting her from his cousin's house, and even if there was a grab for the keys in the course of that episode, the use of force or causing of injury did not occur in the course of committing the theft. Defendant thus contends that the elements of robbery could not be satisfied by the events of October 10, 2008.

The State counters that it tried this case, from beginning to end, on the theory that the theft of the car keys on October 10, 2008, satisfied the theft element of robbery. Thus, the State's theory all along was that defendant's use of force and infliction of bodily injury while stealing the car keys from Broach satisfied all elements of robbery on that occasion. This is the way the case was argued, and these were the instructions given to the jury on the robbery charge.

Consistent with the State's presentation, the judge's instructions to the jury included a comment that by stealing the car keys, defendant became enabled to physically take possession of the vehicle as well. Thus, the judge instructed the jury that "property means anything of value, including personal property, which includes a key to a motor vehicle, and/or the vehicle itself." He further instructed that "[i]n this case the State alleges that moveable property taken or over which control was unlawfully exercised were keys to a motor vehicle and/or the motor vehicle itself."

We agree with the State. Fundamentally, on a defendant's motion for acquittal at the end of the State's case, the motion can be granted only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The motion must be denied if, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences . . . a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

Keys to a motor vehicle qualify as personal property, sufficient to constitute the object of theft under the robbery statute. State v. Matarama, 306 N.J. Super. 6, 18-22 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Indeed, in Matarama, we upheld a carjacking conviction where the defendant obtained the victim's car keys by threatening the use of force. Id. at 20-21. We rejected the defendant's argument that the object of a theft in a carjacking case must be the car itself, not the car keys. Id. at 18.

Accepting the State's version of the events, as described by Broach in her testimony, she was completely unaware of the fraudulent title transfer two days earlier. As far as she was concerned, the Ford Expedition continued to belong to her and her mother, and of course, so did the keys. Unless she gave defendant permission to use the vehicle, he was unauthorized to do so. The vehicle was parked outside when the events of October 10, 2008 occurred. In light of those events (under either party's version), Broach obviously did not authorize defendant to drive off in her car after throwing her out of his cousin's house with all of her belongings. Thus, as the State argued at trial, the fraudulent transfer of title documents on October 8, 2008 did not constitute a theft, or at least not a completed theft, of the vehicle from Broach. That occurred on October 10, 2008, when defendant stole the keys from Broach, which enabled his unauthorized removal of the vehicle.

Applying the Reyes standard, the State provided more than ample evidence to support a reasonable jury finding of defendant's guilt of robbery beyond a reasonable doubt. Therefore, the judge did not err in denying defendant's motion for acquittal.

III.

Defendant next argues that the judge erred in molding the jury charge to fit only the State's version of the events supporting the robbery conviction and the convictions for tampering with public records, forgery, and motor vehicle title offenses. He argues that the court impermissibly failed to describe his version of the events and how they could lead to a finding of only theft from the person, as a lesser included offense of robbery, and which could have supported an acquittal on the offenses dealing with the fraudulent title transfer.

Defendant did not object to the jury instructions at trial, and we are therefore guided by the plain error standard, under which we will not reverse a conviction unless an error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the error must be "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. Macon, 57 N.J. 325, 336 (1971). 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).]

 

When evaluating an allegedly insufficient or improper jury charge, we read not only the portion alleged as error but consider the charge as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). Reading the instructions given here in their entirety, and applying the plain error standard, we find no error, let alone plain error. In instructing the jury on robbery, along with the lesser included offense of theft from the person, the judge made clear that if the State failed to prove beyond a reasonable doubt any element of either offense, defendant must be acquitted on that charge. The judge did likewise with the other offenses pertaining to the fraudulent transfer of the title documents.

With respect to the robbery and assault charges, defendant's version of the events was not a variation of the description of the events given by Broach that would render him less culpable. His version was that none of what Broach said happened. He did not say, for example, that he might have pushed her or even struck her in the immediate aftermath of the phone call, but that the portion of the events involving such force or causing of injury had completely ended and that in reaching for the keys he merely got to them first but with no use of force or violence. He said there was no reaching for the keys, and that he had them in his possession the entire time. Therefore, the court was under no obligation to sua sponte instruct the jury on defendant's only theory of the case, namely that he did not commit the crimes alleged by the State. This explanation was inherent in the judge's repeated admonitions that if the State failed to carry its burden of proof with respect to any element of any offense, the defendant must be acquitted.

Defendant's argument that the jury was not given a sufficient explanation as to how it could find him not guilty of a greater offense but guilty of only a lesser included offense is particularly unpersuasive in light of the jury's finding defendant not guilty of aggravated assault but guilty only of lesser included simple assault.

The same analysis impels us to reject defendant's argument regarding the fraudulent transfer offenses. In order to adequately explain the State's theory of the case, by which the State hoped to carry its burden of proof with respect to each of those offenses, the judge included the State's allegations in framing some portions of the instructions. This was necessary to enable the jury to understand the nature of the charges in the context of the facts established at trial. But again, the judge repeatedly admonished the jury that failure to find any element proven beyond a reasonable doubt must result in acquittal on a particular charge. Considering the instructions as a whole, the jury was not misled in a manner favorable to the State. The instructions, which followed the model jury instructions, were evenhanded and not erroneous.

IV.

In Point III, defendant argues, for the first time on appeal, that his conviction should be reversed because of a summation comment by the prosecutor which suggested that defendant's version of the events should not be believed because he chose not to give a statement, thus violating his right to remain silent. The statement now complained of is highlighted in the following passage of the prosecutor's summation:

Yet when the defendant talked to Detective Loufik, he -- the defendant conceded a lot of the title stuff, a lot of the stuff that happened at the agency because he had to. He was on video. But he never mentioned anything about the assault to Detective Loufik. He never tried to clear his name then, or state that nothing happened, or I m being falsely accused. No. That's the story we hear today, two years later.

 

[Emphasis added.]

 

The evidential predicate for this comment is found in the direct examination of Detective Richard Loufik, an investigator for the Division of Criminal Justice in the New Jersey Attorney General's Office, assigned to investigate acts of criminality related to the Motor Vehicle Commission:

Q. Okay. Now, by the time you're taking this statement from the defendant you were aware of the allegations of violence against Corinne Broach; correct?

 

A. Yes.

 

Q. All right. So, did the defendant in his statement say anything with regard to the assault?

 

A. No.

 

Defense counsel did not object to those questions by the prosecutor.

Because there was no objection to either the questioning or the prosecutor's related summation comment, our review is again guided by the plain error standard. Failure to object to a summation comment is an indication that, in the overall context of the trial and of the summation, counsel did not consider the comment to be particularly egregious or significant. Macon, supra, 57 N.J. at 333; State v. Wilson, 57 N.J. 39, 50-51 (1970). Failure to object also deprives the trial court of the opportunity to rule upon the propriety of the remark, order the remark withdrawn, or give a curative instruction. See State v. Smith, 167 N.J. 158, 181-82 (2001).

Applying these principles, we find no error in the prosecutor's comment. Defendant did not remain silent when he was interviewed by a law enforcement officer. He freely gave a statement to Detective Loufik, in which he discussed the ownership of the Ford Expedition, the relationship between himself and Broach, and the reason he used Andrews as an intermediary to transfer the title. Because defendant did not exercise his right to remain silent, the prosecutor had the right to comment on omissions in defendant's statement about important facts to impeach his credibility by highlighting the inconsistencies between his prior statement and his trial testimony. State v. Tucker, 190 N.J. 183, 189-90 (2007). Accordingly, the prosecutor's comment did not violate defendant's right to remain silent. If the comment was error, which we conclude it was not, the error was harmless.

 

V.

We now address defendant's merger argument. He contends that the object of the theft element of the robbery charge and of the receiving stolen property charge were the same, namely the Ford Expedition and the keys. He therefore argues that because the proofs required to establish an element of the robbery were identical to those used to support the receiving stolen property charge, merger is required.

Defendant was apprehended in possession of the Ford Expedition on October 16, 2008. Count III of the indictment charged defendant with receiving stolen property on that date. It was defendant's conduct in possessing property on October 16, 2008, known to be stolen or believing it probably had been stolen, that provided the factual predicate for the charge. The jury was asked to decide whether defendant was guilty of that offense on October 16, 2008.

The State counters defendant's argument by asserting that "the receiving stolen property conviction was amply supported by evidence that, on October 8, 2008, defendant unlawfully acquired title to the Expedition when he used Jaclyn Andrews to fraudulently obtain a new title, which Andrews immediately signed over to him." The State then reasons that because the robbery occurred two days later, these were distinct crimes on separate dates and do not result in double punishment for the same conduct.

The flaw in the State's argument is that defendant was not charged with receiving stolen property on October 8, 2008. It did not present the case in that manner at trial, and the jury did not decide defendant's guilt of receiving stolen property on that basis. The jury found that defendant was wrongfully in possession of the stolen property on October 16, 2008, after the robbery had occurred. The stolen property he possessed was the same property he stole as part of the robbery.

Therefore, because theft is a lesser included offense of robbery, State v. Ingram, 196 N.J. 23, 39 (2008), and because all theft crimes have been consolidated under Chapter 20 in the Code of Criminal Justice, N.J.S.A. 2C:20-2, we are persuaded that double punishment would result if these offenses were not merged. See N.J.S.A. 2C:1-8a(1)d(1).

Accordingly, we order that an amended judgment of conviction be entered to reflect the merger of Count III with Count I.

VI.

Finally, we reject defendant's excessive sentence argument. We are satisfied that the judge correctly identified and applied the relevant aggravating and mitigating factors, that he articulated adequate reasons for imposing consecutive sentences on the fraudulent title transfer offenses and the robbery and receiving stolen property offenses, and that the overall sentence is not manifestly excessive nor unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 391-92 (1989); State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed as modified.

1 The judgment of conviction incorrectly designates the final charge under Count Two as reckless endangering, in violation of "N.J.S.A. 2C:12-2[b]."

2 Andrews testified that defendant paid her $250 for her participation in this transaction. Defendant denied paying her anything.

3 In a statement to an investigator, Broach had apparently said that defendant grabbed the car keys out of her hand during this struggle. She had told a different investigator that they both reached for the keys, and defendant grabbed them first while restraining her. At trial, she insisted that the latter version was an accurate reflection of what happened.