STATE OF NEW JERSEY v. ROBERT A. WATSON

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4853-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT A. WATSON, a/k/a
BOB WATSON, MICHAEL
THOMPSON, ROBERT
WILLIAMS, and MICHAEL
DOWNING,

     Defendant-Appellant.
_______________________________

                   Argued March 4, 2020 – Decided June 29, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 17-01-
                   0011.

                   Stefan Van Jura, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Stefan Van Jura, of counsel
                   and on the brief).
              Andre R. Araujo, Assistant Prosecutor, argued the
              cause for respondent (Jennifer Webb-McRae,
              Cumberland County Prosecutor, attorney; Andre R.
              Araujo, of counsel and on the brief).

PER CURIAM

        In 2017, defendant Robert A. Watson was convicted by a jury of third-

degree receiving stolen property (count three),  N.J.S.A. 2C:20-7(a), and second-

degree eluding (count five),  N.J.S.A. 2C:29-2(b).1 Defendant was sentenced to

an aggregate term of nine years in prison and ordered to pay $1000 in restitution.

He appeals the January 2, 2018 judgment of conviction.           We remand the

restitution portion of the sentence for the trial court to make findings regarding

defendant's ability to pay. We affirm the other portions of the judgment of

conviction.

                                             I.

        The following circumstances are drawn from the trial record.           On

September 1, 2016, the victim, K.D., reported to the police that her red Hyundai

Elantra was stolen from her boyfriend's house in Millville, and that her two debit

cards were missing. One card already was used for a purchase. Photographs




1
    He was acquitted of three other charges, including another "eluding" offense.
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from the store's surveillance system showed a person using one of the cards and

leaving in a vehicle similar to K.D.'s.

      About three weeks later, a Millville Police Department patrolman spotted

the stolen Hyundai after an alert from his patrol vehicle's license plate reader.

He activated the overhead lights, and the Hyundai began to slow down and pull

over to the shoulder. Before fully stopping, "[a]ll of a sudden," the Hyundai

rapidly drove away toward Bridgeton. A short time later, Bridgeton Police

Department patrol officer Christopher Zanni saw the car at an intersection and

followed it. After activating the patrol vehicle lights and siren, the Hyundai

eventually pulled over. Because the car was reported stolen, Officer Zanni and

his partner approached it with their weapons drawn, ordering the driver to turn

off the car. Instead, the driver "revved the engine . . . [a]nd then he took off"

going "roughly, [sixty] miles an hour" and was driving "all over the road." The

police chased the Hyundai, which pulled over in a residential neighborhood, and

defendant was arrested. He also was issued traffic summonses, including one

for reckless driving,  N.J.S.A. 39:4-96.

      On appeal, defendant argues:

            POINT I:

            DEFENDANT WAS DENIED DUE PROCESS AND
            A FAIR TRIAL BY TWO ERRORS IN THE

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            PORTION OF THE ELUDING CHARGE THAT
            ALLOWED THE JURY TO DRAW AN INFERENCE
            FROM AN ALLEGED MOTOR VEHICLE
            VIOLATION THAT THE ELUDING CREATED A
            RISK OF DEATH OR INJURY. U.S. CONST.
            AMENDS. V AND XIV; N.J. CONST., ART. I, PARS.
            1, 9, & 10.

            POINT II:

            PROSECUTORIAL ERROR IN SUMMATION
            FURTHER        EXACERBATED          THE
            INSTRUCTIONAL ERROR IN THE ELUDING JURY
            CHARGE.

            POINT III:

            THE MATTER MUST BE REMANDED FOR AN
            INQUIRY INTO DEFENDANT’S ABILITY TO PAY
            RESTITUTION.

                                      II.

      Defendant was convicted of second-degree eluding. He argues when the

court read the statutory definition of reckless driving, it did not provide the jury

with sufficient guidance to determine if defendant had the requisite intent to

commit the eluding offense.       He further contends the court should have

instructed the jury to disregard the "risk of death or injury to any person"

element, if they determined defendant's violation of the reckless driving statute

involved a risk of damage to property only, and not injury to a person.




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      We review the issues raised to determine whether they were "clearly

capable of producing an unjust result." R. 2:10-2. "[A]ppropriate and proper

[jury] charges are essential for a fair trial." State v. Baum,  224 N.J. 147, 158-

59 (2016) (quoting State v. Reddish,  181 N.J. 553, 613 (2004)). Where no

objection is made to a jury instruction, and in this case where the charge was

approved by all counsel, "a presumption [is created] that the charge was not

error and was unlikely to prejudice the defendant's case." State v. Singleton,

 211 N.J. 157, 182 (2012). (5T3 to 4).

      Under  N.J.S.A. 2C:29-2(b),

            [a]ny person, while operating a motor vehicle on any
            street or highway in this State . . . , who knowingly flees
            or attempts to elude any police or law enforcement
            officer after having received any signal from such
            officer to bring the vehicle . . . to a full stop commits a
            crime of the third degree . . . .

This offense becomes a second-degree offense "if the flight or attempt to elude

creates a risk of death or injury to any person." Ibid. Under the statute, "there

shall be a permissive inference that the flight or attempt to elude creates a risk

of death or injury to any person if the person's conduct involves a violation of

chapter 4 of Title 39 . . . ." Ibid. Thus, the State can prove the "risk of death or

injury to any person" element by proving actual risk of death or injury or through



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permissive inference by establishing the defendant committed a motor vehicle

offense. See State v. Wallace,  158 N.J. 552, 558 (1999).

      The trial court instructed the jury on eluding, in part, as follows:

            You may infer risk of death or injury to any person if
            the defendant's conduct in fleeing or in attempting to
            elude the officer in Bridgeton, New Jersey, involved a
            violation of the motor vehicle laws of this State.

            It is alleged that the defendant's conduct involved a
            violation of the motor vehicle laws. Specifically, it is
            alleged that defendant was reckless driving, . . . [i]n
            violation of New Jersey vehicle code 39:4-96. A person
            who drives a vehicle heedlessly in willful or [wanton]
            disregard of the rights or safety of others in a manner
            so as to endanger or be likely to endanger a person or
            property shall be guilty of reckless driving.

            Whether he is guilty or not of that offense will be
            determined by an appropriate Court. In other words, it
            is not your job to decide whether he is guilty or not
            guilty of the motor vehicle offense. However, you may
            consider the evidence that he committed a motor
            vehicle offense in deciding whether he created a risk of
            death or injury.

      We are satisfied the trial court's instruction was not "of such a nature as

to have been clearly capable of producing an unjust result." R. 2:10-2; see State

v. Vallejo,  198 N.J. 122, 139-40 (2009) (Rivera-Soto, J., dissenting). The court

relied on the model jury charges, which generally are not considered to be




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erroneous. See Mogull v. CB Commercial Real Estate Grp., Inc.,  162 N.J. 449,

466 (2000). The court also instructed the jury consistent with precedent.

      The court was not required to address the possibility of property damage.

The eluding statute uses the phrase "risk of death or injury to any person ," not

property damage.  N.J.S.A. 2C:29-2(b). See Wallace,  158 N.J. at 558 (providing

that property damage cannot satisfy the eluding statute).

      In Wallace, the Court held that "the term 'injury' must be defined in a

second-degree eluding charge except where the permissive inference can be

drawn." Id. at 560. Injury in this context is "[b]odily injury" as defined in

 N.J.S.A. 2C:11-1(a). Id. at 558. The failure to define injury in Wallace was

harmless error because the "case was tried on the theory that because defendant

violated our traffic laws, his eluding created a rebuttable inference that the flight

or attempt to elude posed a risk of death or injury to any person within the

meaning of N.J.S.A. 2C:29-2b." Ibid.

      Here, the "risk of death or injury" element was tried under the permissive

inference portion of the statute based on the reckless driving motor vehicle

charge. The court instructed the jury on the statutory definition of reckless

driving. The court also defined "injury" for the jury consistent with N.J.S.A.




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2C:11-1(a), although not required by Wallace to do so when proceeding under

the permissible inference portion.

      In State v. Dixon, we held that the court must instruct the jury on the

elements of the motor vehicle offense if the permissive inference is used.  346 N.J. Super. 126, 138 (App. Div. 2001). This was satisfied in this case because

the court read the definition of reckless driving to the jury. The jury acquitted

defendant of the eluding charge stemming from the attempted stop in Millville,

indicating its ability to analyze the elements of the offense and understand its

terms. That it made a distinction between the incident in Millville and the one

in Bridgeton showed it had sufficient guidance to determine when the statute

was satisfied and when it was not.

      Defendant    contends   the    prosecutor's   closing   argument   "further

exacerbated" the problems with the eluding instructions.         He argues the

prosecutor attempted to "denigrate" defendant's defense, which was that he did

not knowingly flee from the police, but drove a short distance to another area

because he feared the police, who had their guns drawn.

      The prosecutor is allowed wide latitude in summation, provided the

argument is confined to the evidence in the trial and "reasonable inferences to

be drawn from that evidence." State v. Smith,  167 N.J. 158, 178 (2001); see


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State v. R.B.,  183 N.J. 308, 330 (2005). In this case, the prosecutor's remarks

addressed defendant's argument that he did not knowingly flee from the police.

Officer Zanni testified that because a stolen car was involved, this was a high

risk stop where the police typically would draw their weapons. The prosecutor

argued the court's jury instruction would not include the type of defense being

proffered. This was fair comment by the prosecutor to the defense arguments.

We are satisfied the prosecutor's comments do not require reversal.

      Defendant was ordered to pay K.D. $1000 for damage to her vehicle. The

State concedes, and we agree, the case should be remanded for the trial court to

make findings about defendant's ability to pay restitution. See  N.J.S.A. 2C:44-

2(c)(2); State v. Newman,  132 N.J. 159, 175 (1993).

      Affirmed in part, and remanded in part for a hearing on restitution. We

do not retain jurisdiction.




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