STATE OF NEW JERSEY v. ROBERT GOODWIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT GOODWIN, a/k/a

ROBERT EBBS, MICHAEL KINK,

ROBERT JAMES, KENNY ROBERTS,

FRANK KIRK, MICHAEL KIRK,

MICHAEL ROBINSON, MICHAEL

ROBERTSON, ROBERT E. GOODWIN,

ROBERT KIRK, ROBERT GOODMAN,

MICHAEL GOODWIN AND RONALD

ROBINSON,

Defendant-Appellant.

__________________________

April 23, 2014

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0370.

Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Robert Goodwin appeals from his conviction for second-degree insurance fraud, N.J.S.A. 2C:21-4.6a. The charge stemmed from false statements defendant allegedly made in connection with insurance claims relating to a 1999 Chevrolet Tahoe. We conclude that because of an improper jury charge, defendant was wrongfully convicted of a crime he did not commit. We, thus, reverse.

We derive the following facts from the record. Defendant and S.H.1 were romantically involved and lived together in a third-floor apartment on South 11th Street in Newark. Unbeknownst to S.H., defendant was also romantically involved with L.R., who lived in an apartment building on South 8th Street, where S.H.'s mother also lived.

In 2009, S.H. purchased the Tahoe with defendant's financial assistance. She obtained automobile insurance with Progressive Insurance Company (Progressive). Because S.H. only had a driving permit, defendant was the vehicle's primary driver, and had sole possession of the keys.

On the evening of September 13, 2009, S.H. was in the third-floor apartment. Defendant was staying in an unoccupied first-floor apartment because he and S.H. were not getting along. At approximately 9:30 p.m., S.H. looked out the window and saw that the Tahoe was parked in front of the apartment. Later that night, defendant left the apartment without S.H.'s knowledge, took the Tahoe, and drove L.R. and her children to a family gathering. They left the gathering at approximately 3:00 a.m. on September 14, 2009, and returned to L.R.'s apartment on South 8th Street, where defendant stayed. Concerned that S.H.'s mother would see the Tahoe and tell S.H., defendant parked the vehicle on South 9th Street and walked back to L.R.'s apartment. Defendant and L.R. went to bed at approximately 3:30 a.m.

At approximately 4:30 a.m., firefighters from the City of Newark Fire Department extinguished a fire that was set in the Tahoe's interior. Detective Anthony Graves, an arson investigator, found that the Tahoe's windows were broken, and someone used a screwdriver to attempt to break the driver's side door lock to gain entry into the Tahoe; however, the ignition was not damaged. The detective also found that the vehicle had an anti-theft ignition device, which prevented its operation without the ignition key. He concluded that whoever drove the vehicle to South 9th Street used the ignition key. He also concluded the fire was intentionally set.

At approximately 7:00 a.m., defendant and L.R. discovered that someone broke the Tahoe's windows and set its interior on fire. Defendant walked to his apartment on South 11th Street, woke up S.H., and told her to call the police because someone stole the Tahoe. He also said that he had walked around the neighborhood, found the vehicle on South 9th Street, and someone set it on fire. S.H. called the police and then went with defendant to South 9th Street, where she told a police officer what defendant had told her. Detective Graves returned to the scene, and defendant told him that the Tahoe had been stolen. Defendant and S.H. later submitted arson questionnaires to the fire department.

S.H. reported the matter to Progressive and filed a theft claim and a fire damage claim. Defendant initially told a Progressive investigator that the Tahoe had been stolen and someone set it on fire. He eventually admitted that he lied about the vehicle being stolen to avoid S.H. discovering that he was seeing another woman; however, he denied he set the fire. Progressive determined that if defendant lied about the theft, he must also be lying about the fire. Thus, Progressive denied both the theft claim and the fire damage claim based on defendant's fraud and misrepresentation.

In addition to insurance fraud, defendant was indicted for second-degree aggravated arson, N.J.S.A. 2C:17-1a(2), and third-degree attempted theft by deception, N.J.S.A. 2C:20-42 and N.J.S.A. 2C:5-1. After the close of the evidence, the trial judge instructed the jury on arson and theft by deception. The judge then gave an insurance fraud jury charge that mirrored Model Jury Charge (Criminal), "Insurance Fraud: Making False Statement (Claims) (N.J.S.A. 2C:21-4.6a(1))" (2010); however, the instruction did not accurately reflect the facts and issues for the jury to determine. As a result, defendant was wrongfully convicted of insurance fraud.

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The charge must provide a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Galicia, 210 N.J. 364, 386 (2012) (internal citations and quotation marks omitted). "Model jury charges are often helpful to trial courts performing this important function." State v. Concepcion, 111 N.J. 373, 379 (1988). However, "[o]rdinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Ibid. A jury charge is required to be tailored to the facts when a statement of the law "divorced from the facts, [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000).

"An erroneous jury charge 'when the subject matter is fundamental and essential or is substantially material' is almost always considered prejudicial." State v. Maloney, 216 N.J. 91, 104-05 (2013) (quoting State v. Green, 86 N.J. 281, 291 (1981)). "Such errors are 'poor candidates for rehabilitation under the harmless error philosophy.'" Id. at 105 (quoting State v. Simon, 79 N.J. 191, 206 (1979)). "'[A] presumption of reversible error arises' that can only be excused if the error is determined to be 'harmless beyond a reasonable doubt.'" Ibid. (quoting State v. Collier, 90 N.J. 117, 123 (1982)).

A person is guilty of insurance fraud

if that person knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any record, bill, claim or other document, in writing, electronically, orally or in any other form, that a person attempts to submit, submits, causes to be submitted, or attempts to cause to be submitted as part of, in support of or opposition to or in connection with: (1) a claim for payment, reimbursement or other benefit pursuant to an insurance policy, or from an insurance company[.]

[N.J.S.A. 2C:21-4.6a (emphasis added).]3

In order to convict a defendant of insurance fraud, the State must prove beyond a reasonable doubt

1) that the defendant knowingly made or caused to be made a false, fictitious, fraudulent, or misleading statement of fact;

2) that the false, fictitious, fraudulent or misleading statement of fact was made or caused to be made in a record, bill, claim, or other document, and that the statement was made in writing, electronically, orally or in any other form;

3) that the defendant submitted, caused to be submitted, attempted to submit, or attempted to cause to be submitted the false, fictitious, fraudulent or misleading statement as part of, in support of, in opposition to, or in connection with a claim for payment reimbursement or other benefits pursuant to an insurance policy, from an insurance company, or from the Unsatisfied Claim and Judgment Fund; and

4) that the false, fictitious, fraudulent or misleading statement was material.

[See Model Jury Charge (Criminal), "Insurance Fraud: Making False Statement (Claims) (N.J.S.A. 2C:21-4.6a(1))" (2010) (emphasis added).]

A statement is material

if, when the statement was made, a reasonable insurer would have considered the misrepresented fact relevant to its concerns and important in determining its course of action. In other words, the statement of fact is material if it could have reasonably affected the decision by an insurance company to provide insurance coverage to a claimant or the decision to provide any benefit pursuant to an insurance policy or the decision to provide reimbursement or the decision to pay a claim.

[Ibid. (emphasis added) (footnote omitted).]

Here, there were two insurance claims: the theft claim and the fire damage claim. There were two allegedly false statements of material fact: that the Tahoe was stolen, and that defendant did not set the fire. The first statement was relevant only to the theft claim, whereas the second was relevant only to the fire damage claim.

To convict defendant of insurance fraud on the theft claim, there must be proof of a false statement of material fact that affected Progressive's liability to provide coverage for or pay that claim. There was no such proof in this case. Progressive was not liable for the theft claim because the Tahoe was not stolen. Thus, defendant did not commit insurance fraud with respect to the theft claim. Accordingly, the trial judge should have tailored the insurance fraud charge to instruct the jury that its determination was limited to the fire damage claim and that in order to convict defendant of insurance fraud, the jury must first find him guilty of arson or theft by deception.

The failure to tailor the insurance fraud charge was not harmless error beyond a reasonable doubt. The jury found defendant not guilty of arson and theft by deception, but guilty of insurance fraud. Without a finding of guilt on either arson or theft by deception, however, defendant could not be convicted of insurance fraud because he made no false statement of material fact that affected Progressive's liability to provide coverage for or pay the fire damage claim. As a result of the manifestly prejudicial error, defendant was wrongfully convicted of a crime he did not commit.

Reversed.

1 In order to respect the privacy of the women named herein, we use initials.

2 N.J.S.A. 2C:20-4 provides, in pertinent part, as follows:

A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:

a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise[.]

The State alleged that defendant committed theft by deception by creating or reinforcing a false impression by submitting a false claim for damage to the Tahoe.

3 The crime is a third-degree offense, which may be elevated to a second-degree offense when a person "knowingly commits five or more acts of insurance fraud, . . . and if the aggregate value of property, services or other benefit wrongfully obtained or sought to be obtained is at least $1,000." N.J.S.A. 2C:21-4.6b.