STATE OF NEW JERSEY v. COREY M. BARD

NOT FOR PUBLICATION WITHOUT THE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.

COREY M. BARD, a/k/a

CORY BARD,

Defendant-Appellant.

_______________________________

October 8, 2014

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-05-1276.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Kathleen E. Bond, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction for disorderly persons shoplifting, N.J.S.A. 2C:20-11b(1). Defendant contends primarily that the judge erred by failing to sua sponte issue a judgment of acquittal. We disagree and affirm.

A judge and jury tried this case for three days between September and October 2012. The State produced testimony from a manager of Rite-Aid; a store security guard; and a police officer. Defendant testified on his own behalf. The judge admitted into evidence a receipt of the stolen goods, a transcript of the security guard's statement to the police, photos of the stolen items, and a Rite-Aid video of the incident. We discern the following facts from the evidence adduced at the trial.

The manager and security guard observed defendant, who appeared to be wearing two coats, enter Rite-Aid and walk towards the baby aisle. They watched defendant place merchandise into the pockets of one of the jackets. The manager, who was wearing a name-tag displaying his title, approached defendant, identified himself, and asked for the merchandise after recounting what he had seen defendant do. Defendant denied taking the items and exited Rite-Aid by running out of the store, dropping baby hygiene products that had been concealed under his coat. The security guard then called the police.

A police officer arrived and noticed someone matching defendant's description running within a few blocks of Rite-Aid. He approached defendant and arrested him as packaged deodorant and baby soap fell from defendant's coat. The officer brought defendant back to Rite-Aid, and returned the stolen merchandise.

Defendant elected to testify at the trial. He testified that he was present in the Rite-Aid and that he possessed the items that fell from his coat. Defendant explained, however, that he purchased the merchandise at a different Rite-Aid location.

The jury found defendant guilty. The judge sentenced defendant to ninety days of probation and imposed the appropriate fines and penalties.

On appeal, defendant makes the following argument

THE COURT ERRED IN NOT ENTERING A JUDGMENT OF ACQUITTAL, [ON THE CHARGE OF SHOPLIFTING] DUE TO THE STATE'S FAILURE TO PROVE EACH ELEMENT OF SHOPLIFTING BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW)

A judgment of acquittal is governed by Rule 3:18-1, which provides in pertinent part that

[a]t the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

[(Emphasis added).]

In State v. Reyes, 50 N.J. 454, 458-59 (1967), the Court enunciated the following standard for determining whether to enter such a judgment

[T]he question the trial judge must determine is whether, viewing 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.

As the Court recently reiterated, "[w]e review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).1

Pursuant to N.J.S.A. 2C:20-11b(1), shoplifting shall consist of the following

For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.2

Giving the State the benefit of "all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," Reyes, supra, 50 N.J. at 459, we conclude that a reasonable jury could find defendant guilty of committing shoplifting beyond a reasonable doubt.

The manager and store security guard observed defendant standing in the baby aisle taking items off the shelf and placing them inside his jacket. Defendant then ran out of the store dropping some of the items after they approached him. The police apprehended defendant near the store while in possession of the unpurchased merchandise. The State therefore produced circumstantial evidence that defendant intended to deprive Rite-Aid of "the possession, use or benefit of [the] merchandise or convert[ed] the [merchandise] to [his use] without paying [Rite-Aid] the full retail value thereof." N.J.S.A. 2C:20-11b(1).

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

1 The State argues our standard of review should be plain error because defendant did not make a motion for entry of judgment of acquittal below. See R. 2:10-2. We review de novo because the court has discretion to order the entry of judgment of acquittal on its own initiative without a motion from defendant. R. 3:18-1.

2 The conviction here is a disorderly persons offense pursuant to N.J.S.A. 2C:20-11c(4) because the jury found that the value of the merchandise was less than $200.