STATE OF NEW JERSEY v. ELONZIO ODUMS

NOT FOR PUBLICATION WITHOUT THE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.

ELONZIO ODUMS, a/k/a, ELONZIO

ODUMS, JR., ALONZO ODUMS,

ELONZO BO ODUMS, ROBERT MOORE,

ALPHONSO ODUMS, ALPHONSO MOORE,

ELONZIO II, TYRONE MOORE,

ALFONSO ODUMS, ELONZIO ODUM,

ELONZO B. ODUM, ELONZIO

ODUM II, ELONZO ODUMS, ALONZO

B. ODOMS, ELANZIO ODUMS,

Defendant-Appellant.

-

December 16, 2015

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-06-1579.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

CarolynA. Murray,Acting EssexCounty Prosecutor, attorney for respondent (Lucille M.Rosano, SpecialDeputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Elonzio Odums was convicted by a jury of third-degree conspiracy, N.J.S.A. 2C:5-2 (count one); third-degree possession of Xanax with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count three); third-degree possession of oxycodone with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
-5(b)(3) (count six); and third-degree possession of Percocet with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count nine).1 On appeal, he challenges several evidentiary rulings, the jury charge, the verdict, and his sentence. For the reasons that follow, we affirm.

I.

The following facts are derived from the trial record. On February 15, 2012, Detective Christopher Cavallo of the Newark Police Department was monitoring surveillance cameras in Newark, near Broad and Market Streets, when he noticed two men engaged in what appeared to be "hand-to-hand transactions." Detective Cavallo described that he witnessed the individual he identified as defendant take something from his pocket in exchange for currency from an unknown person. After watching two additional, similar transactions, Detective Cavallo dispatched officers to arrest defendant and a co-conspirator. At trial, the surveillance video was played for the jury, with Detective Cavallo describing both what was happening in the video and what was occurring in various still photographs taken from the video. Of particular relevance, Detective Cavallo began to call the transactions at issue "hand-to-hand transactions"; however, the prosecutor immediately stopped him and asked defendant's attorney at sidebar if he wanted an instruction to the jury. Defendant's attorney did not request the judge to instruct the jury, and Detective Cavallo did not use that particular description again.

Detectives Olga Perez and Corinne Montella were sent to the scene as a result of Detective Cavallo's surveillance observations. Detective Perez testified that she and Detective Montella approached defendant and his co-conspirator, and eventually handcuffed defendant and placed him into custody. At the time of his arrest, defendant possessed $1,139 in cash, as well as multiple prescription bottles. Four prescription bottles had defendant's name on them, and were labeled as alprazolam (Xanax), oxycodone, Percocet, and Prandin.2 The police sorted the pills by type and put them into evidence bags.

At trial, defendant testified that when he was spotted on the video surveillance camera he was selling bus transfers, which he kept in the Xanax bottle. He explained that the money found on his person was from monthly workers' compensation and disability payments. He also explained that he was waiting at the bus stop to go to Trinitas Hospital to see his doctor about his diabetes and related amputations. Defendant further claimed that he was traveling to Trenton and Philadelphia after his appointment, which was why he brought all of his medications. He added that he was receiving treatment from multiple doctors and had legally-obtained prescriptions for oxycodone, Percocet, Xanax, Soma, and blood pressure medication.

A jury found defendant guilty of conspiracy, and third-degree possession with intent to distribute Xanax, oxycodone, and Percocet. On February 7, 2014, defendant was sentenced to concurrent extended terms of eight years, with a four-year period of parole ineligibility. The court found aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense), (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and (9) (need for deterrence). The sentencing judge mentioned that mitigating factor N.J.S.A. 2C:44-1(b)(11) (excessive hardship) would apply due to defendant's medical issues, but also noted that these medical issues did not prevent defendant from committing the instant crimes.

II.

On appeal, defendant raises the following arguments

POINT ONE

THE TESTIMONY OF DETECTIVE CAVALLO CONSTITUTED IMPROPER LAY OPINION WHICH USURPED THE PROVINCE OF THE JURY. (Not Raised Below).

POINT TWO

THE IMPROPER ADMISSION OF OTHER CRIMES EVIDENCE WAS PLAIN ERROR WHICH UNDULY PREJUDICED DEFENDANT AND DENIED HIM A FAIR TRIAL. (Not Raised Below).

POINT THREE

THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

POINT FOUR

DEFENDANT WAS PUNISHED TWICE FOR THE SAME CRIME AS COUNTS SIX AND NINE WERE DUPLICATIVE.

POINT FIVE

AN ERRONEOUS JURY CHARGE DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

POINT SIX

DEFENDANT'S SENTENCE WAS BOTH EXCESSIVE AND ILLEGAL.

We will address these arguments in turn.

A.

In his first point, defendant argues for the first time on appeal that Detective Cavallo's opinion regarding what he observed on the surveillance camera including his use of the phrase "hand-to-hand transactions" was inadmissible lay opinion, and that its admission constituted plain error.

If an appellant alleges error that was not brought to the trial court's attention, our court will not reverse unless there was plain error that is "clearly capable of producing an unjust result." R. 2:10-2; see State v. Kuropchak, 221 N.J. 368, 383 (2015); Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967) ("The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.") (citation omitted). "Occasionally, however, a trial court's findings may be so clearly mistaken that the interests of justice demand intervention and correction." Kuropchak, supra, 221 N.J. at 383 (citation and internal quotation marks omitted).

Lay opinions are governed by N.J.R.E. 701, which states

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

[N.J.R.E. 701.]

Police officers are permitted to provide factual testimony based on their personal observations. See, e.g., State v. Nesbitt, 185 N.J. 504, 516 (2006); State v. Labrutto, 114 N.J. 187, 197-99 (1989). In some cases, expert testimony is necessary to clarify the implications of conduct witnessed by the police that would not be easily understood by the jury. State v. McLean, 205 N.J. 438, 460-61 (2011). Furthermore, expert testimony is appropriate for providing recognition of "the nature and purpose of the possession of illegal drugs," such as the significance of quantities and types of narcotics. State v. Odom, 116 N.J. 65, 73 (1989); State v. Toro, 229 N.J. Super. 215, 224 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). In contrast, expert testimony is unnecessary for evaluating straightforward but disputed factual issues. McLean, supra, 205 N.J. at 455.

In McLean, our Supreme Court cautioned that an officer may not testify that the transaction he or she witnessed was a drug sale. Id. at 461. Further, it is impermissible for an officer to change his or her factual testimony about personal observations "into an opportunity . . . to offer opinions on defendants' guilt." Ibid.

However, Detective Cavallo's testimony did not result in the errors cautioned against in McLean. While testifying about his personal observations, Detective Cavallo never called defendant's interactions "narcotics transactions" and did not say he saw defendant handling "drugs," nor did he purport to testify based on his training and expertise as a detective. He merely related his observations from the surveillance camera as to what was happening as the transactions at issue were taking place. Further, although Detective Cavallo began to call the transactions at issue "hand-to-hand transactions," the prosecutor immediately stopped him and asked defendant's attorney at sidebar if he would prefer that the judge give a curative instruction. Detective Cavallo continued to testify based only on what he witnessed from the surveillance camera as the other transactions in question took place, and he did not use the phrase "hand-to-hand transactions" again. We find no plain error.

B.

Defendant next argues for the first time on appeal that references during trial to Prandin and Soma, both legally-prescribed medications that were confiscated from defendant at the time of his arrest but led to no criminal charges, were prejudicial to his case. In particular, defendant submits that the admission of the Prandin and Soma pills into evidence constituted improper "other crimes" evidence, amounting to plain error.

N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, some evidence of other acts is admissible in certain cases, such as "when it [is] impossible to prove the crime charged without revealing the uncharged misconduct, and also when the uncharged misconduct evidence explained the circumstances surrounding the charged crime." State v. Rose, 206 N.J. 141, 176 (2011).

Here, the references to the Prandin bottle and the Soma pills painted a more complete picture of the crimes that were at issue during the trial. The Prandin bottle contained some of the illegal drugs that were directly at issue, and due to the numerous different bottles and types of drugs, it was reasonable to provide the jury a complete picture of the criminal episode by accounting for all of the confiscated pills and bottles. Moreover, the Soma pills provided corroboration of defendant's theory of the case that he possessed many pills due to his own various medical ailments, and thus his failure to object may have been a strategic decision. See State v. Castagna, 187 N.J. 293, 314-15 (2006) ("As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal . . . .") (citation omitted).

In any event, because defendant failed to object to the inclusion of any of this evidence at trial, failed to request a limiting instruction, and because there was ample evidence in the record for the jury to convict, notwithstanding the references to Prandin and Soma, we find no plain error in the inclusion of this evidence.

C.

Defendant also argues for the first time on appeal that the jury verdicts were against the weight of the evidence due to the procedures of the police investigation, and therefore we should reverse his convictions.

Defendant admits that he failed to file a motion for a new trial on this issue, and that ordinarily this failure would bar appellate consideration of the issue. R. 2:10-1 ("[T]he issue of whether a jury verdict was against the weight of evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). Defendant cites State v. Soto, 340 N.J. Super. 47, 73-75 (App. Div.), certif. denied, 170 N.J. 209 (2001), for the proposition that appellate courts will grant review notwithstanding failure to file a motion for a new trial when the interests of justice so require. However, this reliance is misplaced.

In Soto, this court reversed a kidnapping conviction when the only evidence at trial regarding the crime was defendant's confessions. Id. at 75. Additionally, there was no evidence of confinement, an element of kidnapping, to support the conviction. Ibid. In this case, however, the record contains evidence strongly supporting the jury's findings, including: the testimony of Detectives Cavallo, Perez, and Montella; surveillance videos; the pills and prescription bottles received in evidence; expert testimony regarding the types and chemical compositions of the seized pills; and defendant's own testimony. Furthermore, while the video surveillance did not conclusively establish that defendant was selling drugs, it was reasonable for the jury to make this factual inference based on an evaluation of all of the available evidence. Hence, even if we consider defendant's argument, it is clearly without merit and the interests of justice do not require a reversal of his conviction.

D.

Defendant next contends that his convictions of both possession of oxycodone and Percocet with intent to distribute (counts six and nine) are duplicative and amount to double punishment because these are identical offenses under N.J.S.A. 2C:35-5(b)(5). Having reviewed the record, we conclude that defendant failed to preserve this issue for appeal by failing to raise it in the trial court. Although he obliquely mentioned at sentencing that the two convictions should be merged, he did not claim that the two pills were the same drug, and by failing to specifically raise the issue at trial or even in a post-trial motion for a new trial, he deprived the State of the opportunity to address the issue in the trial court. We note that the record presented to us contains medical testimony describing the oxycodone pills as pure, with no additives, at a dose of 30 milligrams, and the strongest such pills available, while the Percocet contained only 5 milligrams of oxycodone compounded with 325 milligrams of acetaminophen. However, we decline to decide the issue defendant raises here for the first time on appeal. See State v. Robinson, 200 N.J. 1, 19-20 (2009). Our disposition of the issue is without prejudice to defendant's right to pursue it on a petition for post-conviction relief.

E.

Defendant also argues, for the first time, that the trial judge erroneously instructed the jury to consider evidence of his Prandin and Soma pills. This argument is similar to defendant's assertion that the trial judge should not have admitted any evidence of the Prandin and Soma.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge's instructions must be accurate and comprehensive. Id. at 287-88. Because no objection was lodged at trial, we reverse only if we find plain error. R. 2:10-2. In the jury charge context, this is defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Although some of the trial exhibits, namely bags of pills, may have contained some Prandin or Soma, the record reveals that the jury was properly instructed that it was considering these exhibits with respect to whether they contained oxycodone, Xanax, or Percocet, not Prandin or Soma. Importantly, even though the exhibits were mentioned by number in the jury instructions, the terms "Prandin" and "Soma" were never explicitly used. We therefore find no plain error in the inclusion of this evidence and in the jury instructions.

F.

Lastly, defendant contests his sentence. He argues that it was illegal for him to receive separate, albeit concurrent, sentences for the third-degree possession with intent to distribute oxycodone and Percocet charges. He also argues that receiving a sentence of eight years with a four-year parole disqualifier was excessive. We discern no basis to disturb the sentence.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364 (1984). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990). We will not substitute our judgment for the sentencing judge's or impose our own view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). In sentencing, a judge must consider the relevant aggravating factors and may consider mitigating factors. N.J.S.A. 2C:44-1(a) and (b). Provided that the trial judge followed the Code of Criminal Justice and the factors are supported by meaningful evidence and explained in the record, an appellate court should not second-guess the trial judge unless the sentence "shock[s] the judicial conscience." State v. Case, 220 N.J. 49, 65 (2014) (quoting Roth, supra, 95 N.J. at 365).

A review of the record shows that the sentencing judge considered the circumstances of this case and defendant's extensive criminal history, specifically a long list of prior drug possession and distribution convictions. The judge particularly noted that defendant has twenty-three known arrests and thirteen convictions, many for serious offenses. Additionally, the judge concluded that the State met its burden and defendant was eligible for a mandatory extended term based on his prior conviction for possession with intent to distribute under N.J.S.A. 2C:43-6(f). Accordingly, we conclude that defendant's claim of sentencing error lacks substantive merit.

Affirmed.

1 The jury acquitted defendant of third-degree possession of Xanax, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of oxycodone, N.J.S.A. 2C:35-10(a)(1) (count five); and third-degree possession of Percocet, N.J.S.A. 2C:35-10(a)(1) (count eight). Counts four, seven, and ten of the indictment were not submitted to the jury.

2 The State does not dispute that Prandin was a legally-prescribed medication, and defendant was not criminally charged with possessing or distributing it. The same is true of the quantity of Soma pills, which defendant possessed.