STATE OF NEW JERSEY v. JASON E. LOUIS

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4141-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JASON E. LOUIS,

          Defendant-Appellant.


                   Submitted April 28, 2020 – Decided May 12, 2020

                   Before Judges Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-01-0350.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Stephen Anton
                   Pogany, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Around 3:00 a.m. on May 8, 2015, Orange Police officers were dispatched

to the area of South Day Street, following a report that a storeowner had been

robbed at gunpoint and the suspect had "jump[ed]" into a white Acura. Sergeant

Raymond Hamm was patrolling the area in a marked police car when he saw a

car matching that description approach and make a right turn in front of him.

With the lights and sirens of his patrol car activated, Hamm followed the Acura

for one and a half miles.

      Reaching speeds in excess of sixty miles per hour in a thirty-five-mile-

per-hour zone, crashing into poles, driving on the sidewalk, and spewing debris

in its wake, the Acura ultimately crashed into another pole and stopped. All

three occupants ran from the car; responding officers gave chase; and Hamm

apprehended the driver – defendant Jason E. Louis.

      Following a four-day jury trial, defendant was convicted of second-degree

eluding,  N.J.S.A. 2C:29-2(b).1 Pertinent to this appeal, the State admitted into



1
    The jury acquitted defendant of the remaining charges: second-degree
conspiracy to commit robbery,  N.J.S.A. 2C:5-2 and 2C:15-1; and third-degree
resisting arrest,  N.J.S.A. 2C:29-2(a)(3)(a). After finding the mitigating factors
substantially outweighed the aggravating factors, the trial judge sentenced
defendant at the bottom of the third-degree range to a three-year term of
imprisonment. Defendant does not challenge his sentence on appeal. The two
other occupants of the Acura were charged in the same indictment with various
offenses, tried with defendant, and acquitted of all charges.
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evidence – without objection – three summonses issued to defendant: reckless

driving,  N.J.S.A. 39:4-96; driving while his license was suspended,  N.J.S.A.

39:3-40.1; and unlicensed operation of a motor vehicle,  N.J.S.A. 39:3-10. This

appeal followed.

      On appeal, defendant raises a single point for our consideration:

                                  POINT ONE

            THE INTRODUCTION INTO EVIDENCE OF TWO
            UNPROVEN, IRRELEVANT AND PREJUDICIAL
            MOTOR VEHICLE SUMMONSES WAS CLEARLY
            CAPABLE OF LEADING TO AN UNJUST RESULT.
            (Not raised below)

      More particularly, defendant argues, "the [S]tate improperly introduced

irrelevant, prejudicial, and unproven bad acts - motor vehicle summonses for

driving while suspended and unlicensed [driver] - that had the clear capacity to

lead to his conviction, thereby tainting the verdict and rendering it unjust." The

State concedes those summonses "simply [were] not relevant to whether the

defendant eluded police via flight in a motor vehicle in this case" and, as such,

they did not satisfy the Cofield2 factors for admission as bad-act evidence under



2
  State v. Cofield,  127 N.J. 328, 338 (1992). In Cofield, the Court established
the following four-prong test for the admissibility of other crimes evidence:



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                                         3 N.J.R.E. 404(b). But, the State argues that evidentiary error does not require

reversal.

      We find insufficient merit in defendant's belated argument to warrant

extended discussion in our written opinion. R. 2:11-3(e)(2). We therefore

affirm, adding only a few comments.

      We agree with the parties that the summonses were improperly admitted

in evidence because they were not probative to the eluding charge. See State v.

Bakka,  176 N.J. 533, 546 (2003) (recognizing in the context of aggravated

manslaughter and vehicular homicide charges, "the mere fact that a defendant is

an unlicensed driver does not by itself suggest an awareness of risk"). And as




            1. The evidence of the other crime must be admissible
            as relevant to a material issue;

            2. It must be similar in kind and reasonably close in
            time to the offense charged;

            3. The evidence of the other crime must be clear and
            convincing; and

            4. The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [Id. at 338.]

The Court has since recognized, however, that the second prong does not
necessarily apply in all cases. State v. Williams,  190 N.J. 114, 130-34 (2007).
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the State correctly argues, that error was not "clearly capable of producing an

unjust result." R. 2:10-2 (setting forth the plain error standard to determine

whether the error requires reversal).

      We apply the plain error standard because defendant did not object to

admission of the summonses at trial. Under that standard, "the error will be

disregarded unless a reasonable doubt has been raised whether the jury came to

a result that it otherwise might not have reached." State v. R.K.,  220 N.J. 444,

456 (2015). We must evaluate the error in view of the "overall strength of the

State's case." State v. Chapman,  187 N.J. 277, 289 (2006); see also State v.

Prall,  231 N.J. 567, 588 (2018). A defendant's failure to object leads to the

reasonable inference the issue was not significant in the context of the trial.

State v. Macon,  57 N.J. 325, 333 (1971).

      Applying that standard, we are satisfied there was strong, independent

evidence offered against defendant on the eluding charge. Hamm's unrefuted

testimony concerning the events he personally observed on May 8, 2015 was

corroborated by responding officers, who testified as to their observations. And,

defendant's front-seat passenger testified at trial and acknowledged defendant

was "speeding" while driving the car with police in "pursuit." That evidence




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constitutes "overwhelming admissible evidence on which to convict defendant"

for second-degree eluding. Prall,  231 N.J. at 588-89.

      Moreover, other than fleeting references to the summonses in establishing

their foundation for admission in evidence, the State did not mention the

summonses in summation and the judge did not reference them in the jury

instructions. By contrast, the judge properly incorporated the reckless driving

summons issued to defendant as part of the jury instruction for second-degree

eluding, and the inference the jury may draw to determine whether defendant's

actions "creat[ed] a risk of death or injury to any person."  N.J.S.A. 2C:29-2(b);

see also Model Jury Charges (Criminal), "Eluding an Officer ( N.J.S.A. 2C:29-

2(b))" (rev. Nov. 15, 2004).      Accordingly, the trial judge appropriately

instructed the jury to focus on the elements necessary to prove that charge,

without reference to the erroneous evidence.

      Affirmed.




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