STATE OF NEW JERSEY v. JAMES R. STEWART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES R. STEWART,

Defendant-Appellant.

___________________________

December 13, 2016

Submitted November 2, 2016 Decided

Before Judges Accurso and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-04-0872.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief; Jodie Van Wert, Designated Counsel, on the brief).

Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury on two counts of first-degree robbery, N.J.S.A. 2C:15-1, defendant James R. Stewart was convicted of one count of first-degree robbery and one count of second-degree robbery. The judge sentenced defendant on the first degree conviction as if to a second degree offense and ran the sentences concurrently. Defendant received an aggregate term of seven years, subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judgment of conviction reflects the judge's consent to a reduction of the primary parole eligibility date pursuant to N.J.S.A. 30:4-123.67.

The judge presiding over defendant's trial described the case as "enigmatic," and defendant as "[m]aybe the most inept robber" he "had ever seen." The jury heard testimony from the owner of a twenty-four-hour convenience store and deli in Atlantic City. He claimed defendant walked into his store sometime after 8:00 p.m. on January 31, 2014. Defendant was wearing "[c]lean normal clothes" but had a towel pulled up around his face, a cap on his head and kept one hand in his pocket.

Defendant asked for cigarettes. When the storeowner put the pack on the counter, defendant demanded "everything in the register." The storeowner asked defendant again to pay for the cigarettes, and defendant again demanded everything in the register. This went on a few more times and ended with defendant walking out of the store empty handed.

Although the storeowner could not recollect whether defendant made any motion with the hand he kept in his pocket, the owner testified he believed defendant was armed. He claimed the store had been robbed many times before and "if somebody's coming like this, hands in the pocket, it means he's got something in there and if he demand[s] cash, he is trying to rob you." He described his encounter with defendant as not "a pleasant thing . . . . It's really scary when somebody walk[s] in, you never know what will happen." The owner claimed he directed employees faced with such a situation to "not argue, just give the money and try to save your life."

When asked why he had not followed his own protocol, the owner testified, "[t]his is how I am." He explained his employees were his responsibility, "I don't want anything to happen to them for a little bit of money." For himself, he claimed he could "judge better if I can fight with the person or I can take my chance . . . not to let him pull the gun out. So this is my own judgment, so I take that chance."

After defendant walked out of the store, the owner claimed he looked outside to see which way defendant had gone. He also told an employee, who had been in the back of the store and not aware of the encounter, that defendant had just tried to rob him. The storeowner did not, however, call the police. He testified that because defendant left the store and "nothing happened," he felt no need to call 911. He also did not want to wait around to talk to the police as his shift was ending, and he wanted to go home.

An attendant at a gas station a couple of blocks from the convenience store also testified, through a Vietnamese interpreter, about his encounter with defendant on the same night. The attendant related that he had been sitting in the station's glass booth watching a movie on his iPad, when defendant pushed open the door shortly before 9:00 p.m., startling him.

The attendant testified defendant had his hand in his pocket "like [he had] a gun" and shouted, "Motherfucker, if you don't give me the money, I'm going to kill you right now." The attendant responded that he was by himself and did not have any money on him. The money was in the safe. As defendant pushed by him to get to the safe, the attendant grabbed a stick from its hiding place and started hitting defendant "everywhere, the top, the bottom, everywhere I can hit."

When defendant went down from the blows, the attendant described how he ran out of the booth and pushed the stick through the door handle "to jam the door so that he wouldn't come out." He stood along the wall between the window and the door because he was "afraid [defendant] might shoot out," and screamed for someone to call the police. When asked what defendant was wearing, the attendant replied that he "was really scared. . . . I don't know everything he had on, but he has this white towel, you know, the towel you use to shower, so he covered his face except for his eyes."

Police responded quickly to the report of a robbery in progress and apprehended defendant at the gas station where he had been trapped by the attendant. The convenience store owner, driving home at the end of his shift, saw the lights of the police cruisers, and then defendant, still with the white towel, in the booth. The owner pulled up to a police officer and reported that defendant had just tried to rob him at his store. The officer asked whether there were surveillance cameras at the store. When the owner said there were, the officers asked him to return to the store with them to review the tapes. The owner did and identified for the jury a video and several still photos of his encounter with defendant from the surveillance tapes.

Defendant, who had no prior record, testified he was twenty-six years old and living with his parents and siblings in Somerdale at the time of these events. He explained he had attended Atlantic Cape Community College's culinary program and thereafter worked at the Borgata as well as a country club in Cherry Hill. While working in Cherry Hill, he took business management courses at Gloucester County Community College.

Defendant testified he was employed in a restaurant in Haddonfield in January 2014 and had taken a train to Atlantic City, arriving midday, to gamble in the casinos. He claimed he lost the $350 he brought with him, including his train fare home. He was embarrassed and did not want to call his mother at 8:00 p.m. to come and get him. Instead, he decided to ask people for money to get the $5 train fare home.

Although he had a hat and vest, he was not dressed for the weather. Anticipating that he might be sleeping at the train station, he asked a casino worker for a blanket. The worker gave him a towel, which he wrapped around his neck and face for warmth and started asking people for change. Defendant testified that few people gave him money, and the area he was in was not very safe. So he decided to "go to a place that's well lit with cameras to ask individuals for money." Defendant testified he did not intend to hurt or rob anybody, he was just looking for some change to get home.

Defendant testified he went into the deli, explained his situation and asked the man at the counter for money to get home. The man said no, and defendant walked out within forty-five seconds. Defendant claimed he never asked for cigarettes and never demanded any money. Although acknowledging the picture in evidence showing him in the store with a hat and the towel around his face, he claimed he was not holding the towel up to his face but sneezing.

As for the gas station, defendant claimed he never even said a word to the attendant. As soon as he walked into the booth, the attendant began telling him to get out. As defendant turned to leave, the attendant began to yell in a foreign language and started hitting him with a stick. Defendant claimed he had no idea what was going on or why the attendant was screaming. Knowing he had done nothing wrong, he simply sat down to await the police as the attendant ran outside and barred the door.

The judge instructed the jury on armed robbery, N.J.S.A. 2C:15-1b and unarmed robbery, N.J.S.A. 2C:15-1a(2). The jury convicted defendant of armed robbery of the gas station attendant but only of unarmed robbery of the storeowner because it expressly did not find that defendant threatened the owner with the immediate use of a deadly weapon.

Defendant's counsel presents a single issue on appeal

DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HE WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT DENIED HIS REQUEST TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF AGGRESSIVELY BEGGING.

Defendant raises these additional issues in his pro se supplemental brief.

POINT I

THE COURT ERRED IN FAILING TO CHARGE ATTEMPTED THEFT FROM THE PERSON AS A LESSER INCLUDED OFFENSE OF FIRST DEGREE ROBBERY.

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE ERRONEOUS ADMISSION OF HEARSAY EVIDENCE.

POINT III

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN SEVERAL WAYS THAT CUMULATIVELY DEPRIVED DEFENDANT OF DUE PROCESS AND FAIR TRIAL.

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL.

We find no error in the trial court's conclusion that there was no rational basis in the evidence to instruct the jury on the ordinance violation of aggressive begging,1 but conclude it was plain error for the judge to have failed to charge on the lesser-included offense of attempted theft from the person. We reject defendant's remaining arguments as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

It is axiomatic that "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). When a defendant requests a lesser-included charge, the trial court is obligated to examine the record to determine if there is a rational basis on which the jury could acquit the defendant of the charged offense and convict him on the lesser-included one. State v. Sloane, 111 N.J. 293, 299 (1988).

A trial court may not, however, "charge a jury on any offense requested by the defendant or suggested by the evidence." State v. Brent, 137 N.J. 107, 118 (1994). The Court has noted that "under our Code it is improper for a trial court to charge [an offense], even when requested by the defendant, if there is no evidence in the record to support a . . . conviction." Id. at 114 (quoting State v. Crisantos, 102 N.J. 265, 276 (1986)).

Pursuant to N.J.S.A. 2C:15-1a(2), "[a] person is guilty of robbery if, in the course of committing a theft, he [t]hreatens another with or purposely puts him in fear of immediate bodily injury." Accordingly, the State was required to prove beyond a reasonable doubt that defendant by his conduct threatened the storeowner and gas station attendant with immediate bodily injury, or purposely put them in fear of such immediate injury. State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). The analysis is based upon the totality of the circumstances, and there are no special words or conduct required. Ibid; State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998).

Under either theory, the State had to also prove to the same standard that defendant did so in the course of committing a theft. State v. Farrad, 164 N.J. 247, 257 (2000). Any act that occurs "in an attempt to commit theft" is considered to be "in the course of committing a theft." N.J.S.A. 2C:15-1a. "Robbery is a crime of the second-degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-16.

In contrast, Atlantic City ordinance 204-24 provides that "[n]o person may ask, beg or solicit alms, including money and other things of value, in an aggressive manner in any public place." Because the State must establish that the act of asking for money in an aggressive manner occurred in a public place, an element not necessary in proving either theft or robbery, aggressive begging is not, strictly speaking, a lesser-included offense of either offense. See State v. Thomas, 187 N.J. 119, 131 (2006).

Nevertheless, because the charge was requested by defendant, whether the lesser offense is strictly "included" in the greater offense, as defined by N.J.S.A. 2C:1-8d, is less important to a trial court's determination to charge the offense than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser. Brent, supra, 137 N.J. at 117.

Applying those principles here, we find no error in the trial court's conclusion that there was no rational basis in the evidence for giving a charge that defendant's conduct at the convenience store or the gas station constituted the ordinance violation of aggressive begging. See State v. Cassady, 198 N.J. 165, 179-80 (2009).

Turning first to defendant's encounter with the gas station attendant, defendant maintained at trial that he never even got the opportunity to ask the attendant for money, aggressively or otherwise. In his rendition, the attendant began beating him with the stick before he could say or do anything. The attendant maintained he only hit defendant after he burst into the booth acting as if he had a gun and shouting he would kill the attendant if he did not give him the money. Those facts simply provide no rational basis on which a jury could acquit defendant of robbery and convict him of aggressive begging, no matter which of those men it believed.

As for defendant's encounter with the storeowner, both men testified that defendant sought money from the storeowner. Defendant testified he merely approached the owner at the counter, explained his situation and asked for money for the train. He claimed he never demanded any money and did not intend to hurt or rob anybody. The storeowner, in contrast, testified that defendant came in wearing a hat with the towel over his face and one hand in his pocket demanding the cash in the register.

Defendant's counsel argued in summation that the storeowner's lack of fear and failure to immediately report what he claimed was a robbery corroborated defendant's account of the non-threatening nature of the conversation. As with the encounter at the gas station, however, the evidence presents no rational basis for the jury to both acquit defendant of robbery and find instead that he spoke to the storeowner in a manner that would cause a reasonable person to fear bodily harm or the commission of a robbery or theft or would have intimidated the owner into giving him the money in the register. See Atlantic City, N.J. Ordinance 204-24.

Even considering the general principle that a jury is free to believe part or all of a witness's testimony, there must be more than a theoretical possibility or sheer speculation that a jury could find a defendant guilty of a lesser-included and not the charged offense, to submit the lesser offense to the jury. Brent, supra, 137 N.J. at 118-19. "The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." Ibid. There was no rational basis for the jury to conclude that defendant spoke to the storeowner in a manner that would cause a reasonable person to fear bodily harm or the commission of a robbery or theft or would have intimidated the owner into giving him the money in the register, Atlantic City, N.J. Ordinance 204-24, yet by his conduct neither threatened the storeowner with immediate bodily injury, or purposely put him in fear of such immediate injury, N.J.S.A. 2C:15-1a(2).

The evidence did, however, at least with regard to the convenience store robbery, support a lesser-included charge of attempted theft. Theft is, by definition, a lesser-included offense of robbery. State v. Ingram, 196 N.J. 23, 39 (2008). A jury could conceivably have found defendant guilty of attempted theft but not robbery, if it believed his testimony that, in addition to not simulating use of a weapon, he did and said nothing to the storeowner to threaten him "with or purposely put[] him in fear of immediate bodily injury." N.J.S.A. 2C:15-1a(2).

Having convicted defendant of only unarmed robbery, the jury obviously believed he did not threaten the immediate use of a deadly weapon in the course of committing a theft. But the evidence also afforded a rational basis to acquit defendant of unarmed robbery, based on the absence of any threat or the requisite purpose to put the owner in fear of immediate bodily injury, and instead convict him of attempted theft based on the storeowner's claim that defendant unlawfully demanded the money in the register.

The Supreme Court in Thomas reaffirmed the principle "that a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." 187 N.J. at 132 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). If a trial court errs in failing to instruct the jury on lesser-included offenses, the "defendant's conviction cannot stand if the mistake 'was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached.'" Jenkins, supra, 178 N.J. at 361 (quoting State v. Brims, 168 N.J. 297, 306 (2001)).

Because we find the error in failing to charge attempted theft for the convenience store robbery was "clearly capable of producing an unjust result," R. 2:10-2, we reverse and remand that count of the indictment for a new trial or further proceedings consistent with this opinion. State v. Macon, 57 N.J. 325, 336-37 (1971).

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 Although arguing to uphold the trial court's decision, the State did not assert that the ordinance violation could not be charged because it did not fit within the Code's definition of a lesser-included criminal offense. See N.J.S.A. 2C:1-14k (defining offense). Notwithstanding our doubts as to whether the Atlantic City ordinance could ever be considered a lesser-included "offense" of robbery, we set those doubts aside for purposes of analyzing the issue presented by defendant's counsel. But cf. State v. Stanton, 176 N.J. 75, 98 (reaffirming that motor vehicle offenses do not fall within the generic category of petty offenses included within the Code's definition of a lesser-included criminal offense), cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003); see also State v. Paserchia, 356 N.J. Super. 461, 464-67 (App. Div. 2003) (discussing N.J.S.A. 2C:1-5d, the Code's preemption provision, and its application to municipal ordinances generally).