State v. Lawrence

NOT FOR PUBLICATION WITHOUT THE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.

Lawrence l. simmons,

Defendant-Appellant.

______________________________________

December 22, 2014

Submitted November 12, 2014 - Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-01-0140.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Lawrence L. Simmons was tried before a jury and found guilty of third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree dealing in stolen property, N.J.S.A. 2C:20-7.lb. He appeals from the judgment of conviction entered by the trial court on May 20, 2013. We affirm.

I.

At the trial, the State presented evidence indicating that in October 2013, S.T., a patron of a storage facility in North Brunswick, reported to the manager of the facility that the lock on his unit had been changed.1 The new lock was removed, and S.T. found that various items, which he valued at between $40,000 and $50,000, had been removed. S.T. thereafter searched various on-line auction websites, and located several missing items, which were for sale.

S.T. contacted several persons who were selling the items, and he obtained a description of the person who sold the items to them. That individual was identified as a "regular" on the "flea market circuit." S.T. went to various flea markets and, at a flea market in Lakewood, located a person who met the description that had been provided to him. That individual was later identified as defendant.

S.T. saw many of his personal items on defendant's tables in the flea market, and he contacted the Lakewood police. They arrived and spoke with S.T. and defendant. The police directed defendant to put the items in his truck and drive to the police station. The police learned that defendant also was a patron of the North Brunswick storage facility where S.T. had stored his goods.

The manager of the storage facility testified that defendant visited the facility "[p]retty much every day." She described defendant as one of the facility's "twenty-four hour customer[s]." The police obtained a warrant to search defendant's storage units and his van. In those units, the police found several of S.T.'s items. The police also recovered other items that belonged to S.T. from defendant's van, including the key to the lock placed on S.T.'s unit after his lock was removed.

Defendant testified on his own behalf. He denied breaking into S.T.'s storage unit. He said that, several weeks before the Lakewood flea market, he had purchased all of the "stuff" on his tables from a black man at the North Brunswick storage facility. Defendant did not know the man personally, but said he had done business with him once or twice.

According to defendant, the man had a box truck loaded with goods, which he drove into the facility. Defendant said the security gate at the storage facility had been broken for months, and anyone could enter at any time of day. Defendant testified that the man told him he had no place to put the goods and wanted to sell them. Defendant purchased the items for $550.

Defendant did not inspect the contents of the truck. He said he was not suspicious because other workers were assisting the man in the truck. Defendant assumed the man was engaged in a legitimate business. He denied putting a new lock on S.T.'s unit. He stated that he was "afraid to do anything immoral, unethical or anything that would hurt anybody."

The jury found defendant guilty of the aforementioned charges. The trial judge later sentenced defendant to an aggregated term of four years of probation, conditioned upon service of 180 days in the county correctional facility. The trial judge refused to stay the sentence pending appeal.

On appeal, defendant raises the following issues for our consideration

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF MISTAKE OF FACT (NOT RAISED BELOW).

POINT II

DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION (NOT RAISED BELOW).

POINT III

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S POST-VERDICT MOTIONS FOR A JUDGMENT OF ACQUITTAL AND/OR A NEW TRIAL

II.

We turn first to defendant's contention that the trial court erred by failing to sua sponte charge the jury on the defense of mistake of fact.

Here, defendant did not seek an instruction on ignorance or mistake of fact. Thus, we must determine whether the trial judge erred by failing to provide the jury with this instruction and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

N.J.S.A. 2C:2-4a provides in pertinent part that, "Ignorance or mistake as to a matter of fact . . . is a defense if the defendant reasonably arrived at the conclusion underlying the mistake" and it negates "the culpable mental state required to establish the offense; . . . " Our Supreme Court has stated that enactment of the statute was "technically unnecessary" because "[it] simply confirm[s that n]o person may be convicted of an offense unless each element . . . is proven beyond a reasonable doubt." State v. Sexton, 160 N.J. 93, 100 (1999)). The Court explained that, "Evidence of an actor's mistaken belief relates to whether the State has failed to prove an essential element of the charged offense beyond a reasonable doubt." Id. at 106

In this case, the trial judge made clear to the jury that the State had the burden of proving each element of the charged offenses beyond a reasonable doubt. The judge pointed out that if the State failed to carry its burden of proof as to the elements of any offense charged, defendant must be found not guilty of that offense. The judge explained in detail the elements of the offenses that had to be proven, including the applicable mental states.

The judge also instructed the jury on the manner in which it should assess the testimony of the witnesses, noting that the jury was free to accept all, a part of, or none of a witness's testimony. The judge emphasized that the jurors were "the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness."

The jury was not specifically told that it must find defendant not guilty if it found that the State had not proven beyond a reasonable doubt that defendant believed the property in question was stolen. See Model Jury Charge (Criminal), "Ignorance or Mistake" (May 7, 2007). However, the instructions as a whole conveyed to the jury that, if they believed defendant had acted under the mistaken belief that he had purchased the property in question in a legitimate business transaction, the jury could not find that the State had proven all of the elements of the charged offenses beyond a reasonable doubt.

Thus, even if the judge erred by failing to instruct the jury on ignorance or mistake of fact, the omission of this instruction did not rise to the level of plain error. The jury's verdict indicates that the jury did not accept as credible defendant's uncorroborated claim that he purchased S.T.'s property from an unidentified black man in a legitimate business transaction.

We are convinced that it is highly improbable the jury would have reached a different conclusion if charged on ignorance or mistake of fact. We conclude that the omission of the instruction was not an error of sufficient magnitude to raise a reasonable doubt as to whether the jury was led to a result it might not otherwise have reached. State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

III.

Next, defendant argues that his convictions should be set aside due to the assistant prosecutor's "overzealousness" in his summation. We do not agree.

It is well established that prosecutors "are afforded considerable leeway" in their arguments to the jury "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). If a prosecutor's remarks are improper, the comments may be grounds for reversal of a defendant's conviction, but only if they were so egregious as to deprive a defendant of his or her right to a fair trial. Id. at 83.

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.

[Id. at 83-84 (citations omitted).]

In this case, the prosecutor's reference to the jury's "responsibilities" was not, as defendant claims, inflammatory, nor was it intended to promote a sense of "partisanship" between the prosecution and the members of the jury. The prosecutor's statement that the detectives who testified had no reason to testify falsely was merely a comment on the credibility of these witnesses. The fleeting remark concerning their pensions may have been unwarranted but it was not egregious.

Moreover, the prosecutor's comment that the jury should not let defendant "walk out of here an innocent man" was not improperly overzealous, as defendant asserts. This was not a suggestion that defendant had the burden of showing his innocence. In addition, the prosecutor's statement that S.T. was "an honest guy up there" was not improper. The prosecutor was merely arguing that the jury should find that S.T. had testified credibly.

Furthermore, the prosecutor's remark that defendant should have known that the property he was selling was stolen was a fair comment on the evidence. The prosecutor stated that for defendant "it s a higher standard" because he was "in the business", but this was not a suggestion that a "higher standard" was required for a showing of reasonable doubt. It was merely a comment on the credibility of defendant's testimony.

In any event, the judge instructed the jury on the State's burden of proof, and the jurors were told to disregard any statements by the attorneys that were inconsistent with the judge's charge. We must assume the jury followed the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999)).

As noted, defense counsel did not object to the remarks that defendant now characterizes as improperly overzealous. In the absence of any objections, we must assume that trial counsel did not view the comments as prejudicial. Ibid. We are convinced that, viewed in the context of the entire summation, the prosecutor's remarks did not deny defendant of his right to a fair trial.

IV.

Defendant further argues that the trial judge erred by denying his post-verdict motions for a judgment of acquittal and/or for a new trial. Defendant contends that the State failed to present proof beyond a reasonable doubt that he was guilty of the charged offenses. He maintains that he believed he had purchased items from a legitimate storage unit auction. He also asserts that the items S.T. claimed to be his could not have fit inside S.T's storage unit. We are not persuaded by these arguments.

Rule 3:20-1 prescribes the relevant standard for determining whether to grant a new trial, providing that

[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless ... it clearly and convincingly appears that there was a manifest denial of justice under the law.

"When evaluating motions to acquit based on insufficient evidence, courts must view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State." State v. Perez, 177 N.J. 540, 549 (2003). The prosecution is afforded "the benefit of all its favorable testimony as well as of the favorable inferences [that] reasonably could be drawn therefrom[.]" Ibid. (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

The standard to be applied is "whether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crime or crimes charged." Ibid. (citing Reyes, supra, 50 N.J. at 459). We are convinced from our review of the record that the trial judge correctly determined that, based on the evidence adduced at trial, a reasonable jury could find defendant guilty beyond a reasonable doubt of the offenses charged. The record supports the judge's determination that there was no "manifest denial of justice under the law." R. 3:20-1.

Affirmed.

1 We refer to the patron as S.T. to protect his identity.