STATE OF NEW JERSEY v. LLOYD R. WOODSON

NOT FOR PUBLICATION WITHOUT THE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.

LLOYD R. WOODSON,

Defendant-Appellant.

_______________________________________

August 19, 2015

Submitted April 28, 2015 Decided

Before Judges Hayden and Tassini.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-02-00112.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor,attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Somerset County Grand Jury returned indictment No. 10-02-00112, charging defendant Lloyd Woodson as follows: attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (First Count); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Second Count); unlawful possession of a rifle, N.J.S.A. 2C:39-5(c) (Third Count); possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (Fourth Count); unlawful possession of another rifle, N.J.S.A. 2C:39-5(c) (Fifth Count); possession of another defaced firearm, N.J.S.A. 2C:39-3(d) (Sixth Count); possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (Seventh Count); and possession of large capacity magazines, N.J.S.A. 2C:39-3(j) (Eighth Count). A jury convicted defendant on all counts.

In this appeal, defendant for the first time argues that the trial judge erroneously declined to instruct the jury to consider disorderly persons (DP) theft as a lesser included offense relative to the First Count and Second Count. See N.J.S.A. 2C:20-11(c)(3), N.J.S.A. 2C:1-8(e). Defendant also submits that the judge, in sentencing him to consecutive sentences, failed to consider guidelines established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014 (1986); N.J.S.A. 2C:44-1.

The State submits that, since the defense never requested a jury instruction on DP theft at trial, it is barred from doing so on appeal. R. 1:7-2, R. 2:10-2. The State submits that, in any event, the judge correctly instructed the jury and that the convictions were well-founded.

The State points out that, in sentencing defendant, the trial judge described defendant's background and the crimes he committed. The State argues that defendant's numerous crimes were independent of one another and that the judge sufficiently addressed the Yarbough guidelines and provided a brief but sufficient explanation to justify the consecutive sentences.

We affirm the convictions, but remand for resentencing relative to the counts for which consecutive sentences were ordered.

Facts

On December 28, 2009, in the early morning hours, in Reston, Virginia, defendant, wearing a military-style coat, carrying a rifle under the coat, and carrying coat hangers, entered a 7-11 convenience store. He displayed the rifle to a worker, used the coat hangers to tie up a worker, and committed a robbery. Defendant was not apprehended in Virginia.

On January 18, 2010, defendant checked into a Red Mill Inn in Branchburg Township, New Jersey, and gave his home address as Reston.

On January 25, 2010, in the early morning hours, defendant appeared at a Sierra Suites Hotel in Branchburg and asked a security guard for directions to the nearest 7-11 convenience store. The guard told defendant that there was no 7-11 nearby and gave defendant directions to a Quick Chek convenience store in Branchburg. Wearing a military-style coat, carrying a rifle under the coat, and carrying coat hangers, defendant then entered the Quick Chek convenience store in Branchburg. The store manager observed the suspicious bulge under defendant's coat and a worker called 911. Defendant picked up some store items, put them by the register and then replaced them on shelves. Police Officer Steven Cronce responded, entered the store, and observed bulges under defendant's coat that suggested the rifle. Officer Cronce observed defendant pick up items and then replace them. Defendant then fled from the store and Officer Cronce pursued him.

Officers Robert Farrigan and Robert Stober joined Officer Cronce in searching for defendant. They observed defendant hiding under a bush, defendant began to run, and the officers brought him down. The officers wrestled with defendant an an effort to handcuff him. They found that defendant had a loaded functioning rifle with the serial number drilled out, magazines containing hollow-point bullets, other rounds, cut-up wire hangers, a bag, and a motel room key. The officers observed that defendant was wearing a bullet-proof vest with metal plates.

Somerset County Prosecutor's Office Detective Justin Berger advised defendant of his rights and questioned him. Defendant stated that he was a navy veteran, that he had a contracting business that he lost due to actions by the government, that the government was watching him, and that he was in the Quick Chek to get "supplies" and to "grab and go." He stated that he put the items near the register as a diversion. He stated that he had the rifle because, consistent with "training," "You know, never leave your weapon."

Defendant consented to a search of his motel room, in which police seized items, including another semiautomatic rifle, also with its serial number drilled off, another bullet-proof vest, magazines, hundreds of rounds of ammunition, the defendant's passport, his Social Security card, and his driver's license, showing his Virginia address. Defendant did not have a Firearms Purchaser's Identification card. N.J.S.A. 2C:58-3. Police charged defendant with criminal and DP offenses.

Virginia police traveled to New Jersey and defendant, having been advised of his rights, admitted the above-described robbery of the Reston convenience store.

The trial court entered an order, allowing the State to introduce evidence of defendant's robbery of the Reston convenience store as constituting evidence of his plan to commit another robbery in the Branchburg convenience store. See N.J.R.E. 404(b).

Trial and Verdict

The State presented evidence described above. Defendant testified that the government had ruined his business and life and that the government kept him under surveillance. Defendant testified that his intent was "to snatch the food and go" from the convenience store in Branchburg. In support of defendant's argument that he was legally insane at the time of the attempted robbery, he presented a psychiatrist who gave the opinion that defendant was a paranoid schizophrenic and that defendant's delusion involving the government prevented him from understanding that arming himself and stealing the items to sustain himself was wrong. The State's psychiatrist testified that defendant had a personality disorder with paranoid and anti-social features, but that he was not a paranoid schizophrenic, and that he was embellishing his legitimate symptoms to make them seem worse than they were. The State's psychiatrist, based on circumstances, including defendant's attempts to evade detection and capture and defendant's admission that shooting the officers would have been wrong, gave the opinion that defendant knew right from wrong.

The defense did not request an instruction that, relative to the First Count and Second Count, the jury should consider DP theft as a lesser included offense and the judge concluded that the evidence was not appropriate for the instruction on such a lesser-included offense. There was agreement that there is no offense of attempted DP theft. The judge did not instruct the jury to consider DP theft as a lesser-included offense. The jury convicted defendant on all counts.

Sentence

At sentencing, the judge recounted the evidence at trial and, sitting as the municipal court judge, he found the defendant guilty of the DP offenses charged. See R. 3:15-3.

The judge described the defendant's background and circumstances, noting that the defendant was separated from his wife and that he had no children. The judge noted the defendant's prior record, including a 1997 conviction in New York for criminal possession of a weapon for which he had been incarcerated. The judge noted that the defendant was charged with desertion from the United States Navy and defendant's outstanding charge resulting from the Reston convenience store robbery. The judge cited Yarbough and State v. Sainz, 107 N.J. 283 (1987). The judge acknowledged the court's duty to view the individual offender, to balance the aggravating and mitigating factors to determine the proper range of sentence, and to sentence according to the individual offender and particular crimes he committed. The judge found aggravating factors three, six, and nine and found no mitigating factor. N.J.S.A. 2C:44-1(a)(1), -1(a)(3), -1(a)(9).

The judge merged the First Count and Second Count and sentenced defendant on the First Count to a custodial term of nine years with an eighty-five percent parole disqualifier, consistent with the No Early Release Act (NERA), plus a three-year period of parole supervision. See N.J.S.A. 2C:43-7.2.

On the Third and Fifth Counts, the judge noted the Graves Act and sentenced the defendant to custodial terms of four years with three years to be served without parole, on each count, concurrent to one another, but consecutive to the sentence on the First Count. See N.J.S.A. 2C:43-6(c). On the Fourth Count, Sixth Count, Seventh Count, and Eighth Count, the judge sentenced the defendant to State Prison for eighteen months, on each count, concurrent to one another, but consecutive to the sentence on the First Count. The judge ordered the sentences for the Third through Eighth counts consecutive to the sentence for the First Count's term. On the DP offenses the judge sentenced defendant to six months, to be served in State Prison.

Conclusions

I

The Criminal Code states, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). See also State v. Garron, 177 N.J. 147, 180 (2003). There must also be a rational basis for acquittal of defendant on the charged offense for the court to instruct the jury to consider an uncharged offense. State v. Brent, 137 N.J. 107, 113-14 (1994). Where the facts in evidence "clearly indicate the possibility" of a lesser included offense, even if there is no request for instruction to consider a lesser included charge, the court should provide it. State v. Choice, 98 N.J. 295, 298 (1985) (citing State v. Powell, 84 N.J. 305, 319 (1980)). "Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986) (citations omitted).

Defendant wearing a military-style coat, under which he had a rifle and carrying coat hangers, entered the Virginia convenience store, displayed the rifle to a worker, used the coat hangers to tie up a worker, and committed a robbery. A few weeks after the Virginia robbery, defendant, again wearing a military-style coat under which he had a rifle and carrying coat hangers, entered the Branchburg convenience store to attempt another robbery. However, this time the store manager observed the rifle's suspicious bulge beneath defendant's coat, another employee called police, and when police arrived, defendant fled from the store without completing the robbery (or even committing a theft).

The defense now argues that defendant's picking up and replacing retail items while he was in the store constituted a series of thefts. "A person is guilty of theft if he unlawfully takes or exercises unlawful control over movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3. Defendant did not "[d]eprive," i.e., "withhold . . . property of another permanently for so extended a period as to appropriate substantial portions of its economic value." N.J.S.A. 2C:20-1(a). Certainly the Legislature did not intend that people in retail establishments who pick up and replace retail items would be guilty of theft. Accordingly, there was no rational basis for instruction that relative to the First and Second Counts the jury should have considered DP theft as a lesser included offense. N.J.S.A. 2C:1-8 . The trial judge appropriately instructed the jury and we reject the defendant's argument as a basis to reverse or vacate the conviction.

II

Sentences of imprisonment for more than one offense "shall run concurrently or consecutively as the court determines at the time of sentence," and "[n]ot more than one sentence for an extended term shall be imposed." N.J.S.A. 2C:44-5(a). In sentencing under the Criminal Code, there is "no presumption in favor of concurrent sentences . . . [,]" and the trial court has discretion to impose consecutive sentences. State v. Abdullah, 184 N.J. 497, 513 (2005).

Yarbough provides "general sentencing guidelines for concurrent or consecutive-sentencing decisions (including any parole ineligibility feature) when sentence is pronounced on one occasion on an offender who has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes." 100 N.J. at 643-44. The Yarbough guidelines follow

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Ibid.]

When exercising its discretion in imposing a concurrent or consecutive term, the sentencing court must, with "specific reference to the Yarbough factors," state its reasons for a consecutive or concurrent sentence. State v. Miller, 205 N.J. 109, 122 (2011). See also State v. Soto, 385 N.J. Super. 247, 256 (App. Div. 2006) (citing Abdullah, supra, 184 N.J. at 515). The court's explanation may be brief and, if its reasons are self-evident, it is sufficient. State v. Orlando, 269 N.J. Super. 116, 140 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). See also N.J.S.A. 2C:44-5a (guiding courts imposing concurrent and/or consecutive terms of imprisonment on criminal defendants).

Only when the trial court has failed to follow the sentencing guidelines, when the aggravating and mitigating factors are not supported by the evidence, or when application of the sentencing guidelines renders a sentence clearly unreasonable should a sentence be disturbed on appeal. State v. Roth, 95 N.J. 334, 364-65 (1984).

Defendant argues that the trial judge did not make the "slightest allusion" to the Yarbough guidelines. In fact, the judge cited Yarbough and Sainz. Defendant's crimes were numerous, the judge found aggravating factors, he did not double count the aggravating factors, and he found no mitigating factor. The State submits that the judge provided a brief, but sufficient explanation for the consecutive sentences and that the consecutive sentences were justified. However, we do not see in the sentencing transcript that the judge stated his reasons, with reference to Yarbough, for ordering the sentences for the Third through Eighth Counts consecutive to the sentence for the First Count. Accordingly, we reverse only the sentences on those counts and remand only for resentencing thereon.