STATE OF NEW JERSEY v. KELVIN WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2127-10T2

State of New Jersey,

Plaintiff-Respondent,

v.

Kelvin Williams,

Defendant-Appellant.

________________________________________

July 11, 2012

 

Argued March 13, 2012 - Decided

Before Judges Carchman and Maven.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-05-01804.

Michael B. Jones, Assistant Deputy Public

Defender, argued the cause for appellant

(Joseph E. Krakora, Public Defender,

attorney; Mr. Jones, of counsel and on the

brief).

Jason Magid, Assistant Prosecutor, argued

the cause for respondent (Warren W. Faulk,

Camden County Prosecutor, attorney; Mr.

Magid, of counsel and on the brief).

PER CURIAM

Defendant Kelvin Williams appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A. 2C:15-1. The trial judge sentenced defendant to fourteen years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the conclusion of the State's case, arguing that the evidence was insufficient to warrant a conviction, defendant moved for an acquittal or a directed verdict, directing the jury to find him not guilty of the charge of first-degree armed robbery. R. 3:18-1. The judge denied the motion. We now conclude that the judge erred and improperly denied defendant's motion for acquittal. We reverse and remand for the entry of a judgment of acquittal.

I.

These are the facts that were presented during the State's case-in-chief. On October 8, 2008, at approximately 10:42 a.m., a black male, later identified as defendant, entered the Sun National Bank in Somerdale. He was wearing bright orange pants and a camouflage hooded sweatshirt with the hood pulled over his head. Aline Keshishian, an employee of the bank, observed that defendant took his hands out of his pockets as he entered the bank. Defendant approached a bank teller, Cheryl Duncan, told her he had a bomb1 and demanded $7,000,000 dollars. For the duration of the encounter, which lasted approximately one minute, no bomb was visible to Duncan; defendant never displayed to Duncan any indicia of a bomb; and defendant did not gesture or otherwise indicate where a bomb might be located. In response to defendant's demand, Duncan stated that "she did not have that kind of money." Defendant replied that Duncan was to give him whatever was available. Duncan gave him the money in her drawer, which was later determined to be $552. This sum did not include any "bait money," or money bank employees utilize during robberies as traceable money. According to Duncan, she failed to follow this protocol out of fear. Upon receipt of the money, defendant left the bank and got into a maroon taxi cab, which drove away from the bank.

Although Duncan was separated from defendant by protective glass during the encounter, defendant frightened her. However, she did not initially believe that he had a bomb. She stated, "I think it's silly for someone to blow themselves [sic] up for money. But, if you're crazy enough to do something like that, there is a very good possibility that you have a bomb[.]" She also said that although she did not observe a bomb, defendant was wearing "[a] big hooded sweatshirt."

After defendant left the bank, Duncan called 9-1-1, notifying the police of the robbery and describing the taxi cab in which defendant had departed. Keshishian locked the door of the bank, and Duncan activated the bank's silent alarm. When the police arrived, Duncan provided the officers with an account of the robbery and defendant's departure. Keshishian told the officers that defendant was wearing a camouflage hooded sweatshirt, orange pants and what appeared to be a white hospital bracelet on his wrist. Smith relayed the information to all responding officers via Central Communications.

Officer Susan Moran of the Lindenwold Police Department located the taxi cab Duncan had identified. The taxi cab driver, Muhammad Shahzad, corroborated the bank employees' descriptions of defendant as a black male clad in orange pants and a hooded sweatshirt. Shahzad notified Moran that defendant hired him to drive to the bank and that, after stopping there, defendant asked to be dropped off at the Boscov's entrance to the Echelon Mall, where defendant paid him the $10 fare.

Investigator Herrington of the Voorhees Township Police Department responded at Boscov's in the Echelon Mall. While walking towards Boscov's in the mall, Herrington observed a black male matching defendant's description, approximately five feet and ten inches in height, with a beard and a thin build. However, the man was wearing jeans, a white- and blue-striped collared shirt, and a baseball hat; he was carrying a camouflage hooded sweatshirt in his hand. As soon as the man made eye contact with Herrington, he looked away quickly and entered Spencer's, a store in the mall located two storefronts away from Boscov's. Herrington entered Spencer's, observed defendant, approached him and informed him that he matched the description of an individual who had just robbed the Sun National Bank in Somerdale. Herrington took hold of defendant's left arm, and Lieutenant Slack, who had arrived as backup, took hold of defendant's right arm, which caused defendant to drop the hooded sweatshirt. The sweatshirt had concealed a white transparent plastic bag that contained $481 in cash, and when the sweatshirt fell, the plastic bag was revealed. Defendant had a white hospital bracelet on his right wrist that bore his name.

On defendant's person, the police found a receipt from Pay Half, a store located next to Boscov's in the mall. Carol Renzulli, the assistant store manager of Pay Half, recalled seeing, at approximately 10:49 a.m., via the store's live-feed video surveillance system, that the cashier was interacting with an individual not shown in the video. Shortly thereafter, Renzulli noticed clothing in the trash can near the store's cash register. In particular, Renzulli observed orange "scrub-like" pants and a white t-shirt. Renzulli informed mall security of her observations, and a Voorhees police officer collected the items from the store. The receipt recovered from defendant indicated that a pair of pants and two shirts had been purchased at Pay Half for a total of $60.98 and that the payment had been rendered in cash.

The police transported defendant to the bank for identification. Duncan, who stood inside of the bank at the drive-through window, observed defendant, who was standing outside in the parking lot. Once defendant was brought closer to the window, pursuant to Duncan's request, she informed the police that defendant was the individual who had robbed the bank, but she noted that his clothes were different.

At the conclusion of the State's case, defendant moved for a judgment of acquittal. R. 3:18-1. The judge denied the motion, and the jury convicted defendant. Defendant appeals.

Defendant asserts that the trial judge improperly denied his motion for a judgment of acquittal as to the charge of first-degree robbery because the evidence did not support a finding of armed robbery by simulation. Specifically, defendant claims that, without either an unambiguous gesture simulating a weapon or an ambiguous gesture accompanied by words intended to make the victim believe that the robber is armed, the elements of first-degree robbery are not satisfied. Defendant argues that the facts of this case do not support a finding of armed robbery by simulation because defendant's statement that he had a bomb was not accompanied by any gesture, ambiguous or otherwise, that would indicate the presence of a bomb or detonator, and the fact that defendant's hooded sweatshirt could have concealed a bomb is insufficient to establish the necessary elements of armed robbery by simulation.

A.

We first address our standard of review. When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court is to apply the standard set forth in State v. Reyes, 50 N.J. 454 (1967) to determine

whether, viewing the . . . 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.

[Id. at 459.]

See also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2012). We review the decision of the trial judge de novo, applying the Reyes standard to evaluate the motion for acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). See also Pressler & Verniero, supra, comment 5 on R. 3:18-1.

B.

Robbery is a crime of the second degree, but it is elevated to a first-degree crime if, in the course of committing the theft, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. The definition of a "deadly weapon" includes simulation of a deadly weapon, N.J.S.A. 2C:15-1 note 11 (2012) (Weapons, use of, elements of offense), enabling a defendant's conviction for first-degree armed robbery to be based on simulation of the possession of a deadly weapon. Indeed, "deadly weapon" is defined as

any . . . weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.

[N.J.S.A. 2C:11-1c.]

In the context of simulation, the definition of "deadly weapon" in N.J.S.A. 2C:11-1c has been read to require that there be either an object that clearly simulates a weapon or a combination of words and gestures that "complete the impression of a concealed weapon . . . ." State v. Chapland, 187 N.J. 275, 292 (2006). It is important to note that the Supreme Court did not expressly limit the statutory interpretation to these two alternatives.2 However, the Court stated that "[a] threat or reference to a deadly weapon alone is not enough." State v. Hutson, 107 N.J. 222, 227 (1987).

The issue in this case is whether defendant's clothing and comportment and the nature of his threat provided a sufficient basis upon which to convict him of armed robbery by simulation. There is a factual discrepancy, notably between the testimony of Duncan, an eyewitness, and the investigating police officer, as to whether defendant said that he had a bomb, that he had a bomb strapped to him, or that he had a bomb strapped to his chest. However, it is unrefuted that defendant did nothing other than state the existence of a bomb. The trial judge concluded that the fact that defendant was wearing a hooded sweatshirt that could have concealed a bomb was sufficient to establish armed robbery by simulation. We disagree.

In State v. LaFrance, 224 N.J. Super. 364 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583 (1990), we affirmed a conviction for first-degree robbery where the defendant stated that he had a gun, positioned his hand inside of his coat so that it appeared to be a gun and continued to threaten to blow his victims' brains out. Id. at 368, 372-73. In State v. Huff, 292 N.J. Super. 185 (App. Div.), certif. denied, 146 N.J. 570 (1996), aff'd, 148 N.J. 78 (1997), we likewise affirmed a conviction for armed robbery in a case where the defendant told his victim that he had a gun and patted his waistline under his coat to indicate where the gun was allegedly concealed. Id. at 190-91. Despite the fact that the defendant did not simulate a gun, we found significance in the fact that "the victim testified and indicated by physical demonstration what the defendant did when he said he had a gun and asked for the money." Id. at 191 (emphasis in original). LaFrance and Huff inform us that simulating the appearance of a weapon or gesturing to a location where it would be reasonable to believe that the identified weapon was concealed, when combined with a threat, are sufficient circumstances to establish first-degree robbery by simulation.

The importance of the accompanying gesture was made manifest in Chapland, where, according to the defendant's account of the facts, while struggling with the victim for her pocketbook, he drew his hand behind his back as though he were reaching for a weapon and yelled, "Give me your pocketbook, bitch."3 Supra, 187 N.J. at 291-92. Even though the defendant did not specify the type of deadly weapon he simulated possessing, the gesture, which was indicative of both possession and imminent use of a weapon, was sufficient to meet the requirement from Hutson that there be more than words alone. Chapland, supra, 187 N.J. at 291-92. The facts of Chapland indicate that the gesture is primary, at least in circumstances where the defendant does not specify that he or she has a weapon. The question in this case, however, is what conduct is required to accompany words when the defendant explicitly references a bomb.

Here, defendant made no gesture to indicate that he was ready to detonate a bomb,4 such a gesture or indicator being akin to pointing a fake gun in LaFrance or rapidly reaching for a nonexistent weapon in Chapland; nor did he gesture that he had a bomb, which would be similar to patting one's body, as in Huff. In fact, defendant made no gesture at all. The facts here are analogous to Hutson, in which there was no gesture accompanying the announcement that the taxi cab passengers had a gun. Supra, 107 N.J. at 228 ("what is missing in this record is the link between the threat and the object viewed by the victim"). The State argues that, whereas a gesture is required to fire on or stab a victim, a bomb may not require a gesture in order to be detonated because requiring that a gesture accompany a threat in all situations would effectively exempt robbery by means of a bomb threat from punishment, and there is no indication in the legislative history that the statute was not intended to apply to bomb threats.

However, there is no statutory authority to treat robberies involving bomb threats differently from simulation cases involving threats to use other weapons. Consequently, to hold that a bomb threat unaccompanied by a gesture is sufficient to establish robbery by simulation would be to eviscerate the case law requiring that a threat to use a deadly weapon be accompanied by conduct indicative of the existence of the weapon. It bears noting that cases in other jurisdictions addressing armed robbery by simulation of a bomb have involved the defendants' use of physical objects disguised either as bombs or as devices for detonating bombs. See, e.g., United States v. Hernandez, 232 Fed. App'x 561, 562 (6th Cir. 2007)5; United States v. Hanna, 191 Fed. App'x 921, 923-24 (11th Cir. 2006); United States v. Hart, 226 F.3d 602, 607 (7th Cir. 2000); United States v. Marx, 485 F.2d 1179, 1185 (10th Cir. 1973); State v. Richey, 364 So. 2d 566, 567 (La. 1978).

In light of the wide-reaching implications for statutory interpretation raised by the unique circumstances under which a bomb threat may occur and the courts' expansive interpretations of the statute in Huff and Chapland, the issue here is whether defendant's mode of dress or clothing, without more, could have given Duncan a reasonable belief that defendant had a bomb. Hutson, supra, 107 N.J. at 228 (phrasing the question as whether "a jury . . . might properly have concluded that the newspaper observed by the victim is an instrument or device that would satisfy the definition of dangerous weapon provided it were fashioned so as to animate the requisite . . . belief in the victim" (emphasis in original)). Notwithstanding the judicial focus on gestures, the thrust of the decisional law has been to define the contours of a victim's reasonable belief, as evidenced by the "overall impression" approach employed in Chapland, supra, 187 N.J at 292.

The case law requires that the victim believe the threat about the weapon. Duncan stated that she did not believe defendant when he told her he had a bomb. She later convinced herself that defendant was armed by reasoning that if he was "crazy" enough to blow himself up for money, it was likely that he had a bomb. Her failure to give defendant the bait money was evidence of her fear.

Accepting as credible Duncan's testimony that she came to believe that defendant had a bomb, Hutson nonetheless instructs that we must determine the reasonableness of such a belief. LaFrance, Huff and Chapland require that a defendant's conduct confirming the existence of a weapon be sufficient to establish the reasonableness of a victim's belief. The Chapland Court interpreted Hutson to mean that a victim's belief could be reasonable if "whatever allegedly 'cloaked' the item could do so in a believable manner." Chapland, supra, 187 N.J. at 289.

Despite this broad language, the Court has consistently rejected an interpretation that relies solely on the victim's perception of the circumstances surrounding the threat and has instead anchored its decisions in evidence of a defendant's intent to create his or her victim's reasonable belief in the truth of the threat. In State v. Nero, 195 N.J. 397 (2008), the Court held that simulation of a deadly weapon must be purposeful in order to sustain a conviction for first-degree robbery. Id. at 408. See also Chapland, supra, 187 N.J. at 292 (finding significant that the defendant intended to create the impression that he was armed); Hutson, supra, 107 N.J. at 228-29 (noting that the object must be fashioned in such a manner as to create a reasonable belief that the simulated weapon exists).

Here, there is no evidence that defendant chose his clothing so as to create the impression that he was wearing a bomb. It is not even clear whether defendant told Duncan that the bomb was on his person; if he did not say that the bomb was on his body, the fact that defendant was wearing a hooded sweatshirt has little relevance. See id. at 228 ("there was simply no evidence whatsoever to suggest that the newspaper [underneath which the victim thought a gun was hidden] was fashioned or held in such a manner as to create any impression on the victim" (emphasis in original)).

Notwithstanding the discrepancy about the content of defendant's threat, the evidence does not indicate that defendant's clothing influenced Duncan's impression that he was armed, as the prosecution interpreted the fact that he wore the hooded sweatshirt to reflect an intent to conceal his identity, not a weapon. Furthermore, when defendant threatened Duncan, he put his head on the counter in front of her window, such that all that she could see of him was his head. Additionally, Duncan stated that she believed defendant's threat not because of his appearance or behavior but because she imputed insanity to him based on his conduct and statements. Indeed, she believed defendant, based on her reasoning that a person "crazy" enough to threaten to blow himself up for money, would be "crazy" enough to act on that threat. Duncan's fear derived from her assumption that defendant was "crazy enough to [blow himself up]," an assumption that was unsupported by the language of any of the three versions of defendant's threat (i.e., defendant never said he intended to kill himself) and bore no reference to the conduct, clothing or demeanor of defendant.6 Because Duncan lacked a reasonable belief that defendant was armed with a bomb during the commission of the robbery, even giving the State all favorable inferences, there was insufficient evidence to establish the crime of first-degree robbery by simulation. Defendant's motion should have been granted and a judgment of acquittal entered.

Because our decision on this issue is dispositive, we need not decide the second issue defendant raised on appeal, namely, the prejudicial value of the admission into evidence of bright orange pants that bore the initials of the Camden County Correctional Facility (CCCF).

R

eversed and remanded for the entry of a judgment of acquittal.

1 The record contains three versions of defendant's threat. At trial, Duncan testified that defendant told her he had a bomb. Patrolman Kevin Smith testified that when he gathered information from Duncan about the robbery, she stated that defendant told her that he had a bomb strapped to his chest. Smith noted that in his report, he had written that defendant told Duncan he had a bomb strapped to him.

2 "An unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Chapland, supra, 187 N.J. at 292 (emphasis added).

3 The victim testified that the defendant threatened to cut her, thereby indicating that he had a knife. Chapland, supra, 187 N.J. at 278. She also claimed to have heard the knife "click" open and to have seen it. Ibid.

4 Presumably, defendant would be in control of the bomb's detonation, in light of the fact that its threatened detonation was contingent upon Duncan's decision whether to give defendant money.

5 Pursuant to Rule 1:36-3, "[n]o unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court." See also Pressler & Verniero, Current N.J. Court Rules, comment 3.5 on R. 1:36-3 (2012) (discussing authority of published opinions of federal and out-of-state courts).

6 It could be argued that defendant's demand for the outrageous sum of $7,000,000 dollars was an indicium of defendant's mental instability, but Duncan did not testify that this factored into her judgment of defendant. The outrageousness of the demand, as well as defendant's immediate acceptance of Duncan's counteroffer of $552, could also be interpreted to show that defendant's threat was not serious and that Duncan's fear was therefore unreasonable.