State v. Underwood
| Decision Date | 26 December 1995 |
| Citation | 286 N.J.Super. 129,668 A.2d 447 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Derrick J. UNDERWOOD, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Susan L. Reisner, Public Defender, for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
Deborah T. Poritz, Attorney General, for respondent (Debra A. Owens, Deputy Attorney General, of counsel and on the letter brief).
Before Judges DREIER, A.M. STEIN and CUFF.
The opinion of the court was delivered by
ARNOLD M. STEIN, J.A.D.
We reverse defendant's conviction for receiving stolen property and remand for a new trial.
On the evening of April 6, 1993, Elena Gelletly loaned defendant her car so that he could take his girlfriend to dinner. Defendant never returned with the car. Gelletly reported it stolen about two days later.
During the next week, defendant called Gelletly twice, telling her that he had driven the car to New Jersey, and intended to drive it back, but that he needed money to buy gas. He asked Gelletly if she could wire him the money. Gelletly told defendant she had reported the car stolen, but said everything would be all right if he returned the car.
On April 15, Officer Harman of the Carneys Point Police Department located the car at the Twin Bridge Apartment Complex pursuant to an anonymous tip. The police apprehended defendant at one of the apartments. Defendant claimed he had been visiting a friend who was going to give him some money and told the police that he borrowed the car from Gelletly, had since spoken with her and was making arrangements to bring the car back.
Defendant claims the trial judge failed to instruct the jury of the State's burden to prove defendant purposely deprived Gelletly of her property, failed to instruct the jury concerning defendant's intent to return the vehicle and failed to adequately define stolen property.
Because defendant did not object to the trial judge's instructions, the standard of review is plain error. R. 2:10-2. Defendant must show "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971). Nevertheless, "erroneous instructions are almost invariably regarded as prejudicial." State v. Vick, 117 N.J. 288, 289, 566 A.2d 531 (1989).
N.J.S.A. 2C:20-7a defines the crime of receiving stolen property:
A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner.
Defendant submits that the intent to permanently deprive a person of his or her property is an essential element of receiving stolen property.
A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, immovable property of another with purpose to deprive him thereof.
To deprive another of his or her property means:
(1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value ... or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.
Proof that the property was stolen is not necessarily an element of the crime of receiving. In State v. Bujan, 274 N.J.Super. 132, 133, 643 A.2d 628 (App.Div.1994), the New Jersey State Police ran a "sting operation" resulting in the convictions of two defendants for receipt of stolen property. A police detective offered and sold defendants prescription drugs which the detective said were stolen. Ibid. The drugs were not actually stolen but were entrusted to the officers for purposes of the sting. Ibid. We held that a person can be convicted of receiving stolen property even though the property was not actually stolen, so long as the defendant believes the property was actually or probably stolen. Ibid.
However, when the defendant charged with receiving is the same person who initially took the property, it is impossible to define this belief without determining defendant's intent toward the property. In State v. Cole, 204 N.J.Super. 618, 621, 499 A.2d 1030 (App.Div.1985), defendant's employer gave defendant permission to use her car for two weeks. Defendant did not return the car and his employer reported it stolen. Ibid. Over two months later, defendant was found in possession of the car in New Jersey and was later convicted of receiving stolen property. Ibid. We upheld the conviction, holding defendant's retention of the car almost two months beyond the originally agreed date supported the inference that he intended to permanently deprive the owner of her property. Id. at 629, 499 A.2d 1030.
We conclude that in order to convict for receiving stolen property under N.J.S.A. 2C:20-7a, when defendant is the same person who allegedly stole the property, the State must prove that the defendant intended an unlawful taking. In other words, the State must prove that defendant stole the property.
The model jury charge for receiving stolen property provides:
Merely receiving property that has been stolen is not an offense. It becomes a criminal act when one receives that stolen property knowing it has been stolen or believing that it probably has been stolen.
Under the statute therefore a person is guilty of theft, although (he/she) did not steal the property (himself/herself), when, with either knowledge that the property has been stolen, or the belief that it has more likely than not been stolen, (he/she) obtains possession of it with the awareness or knowledge of what (he/she) is doing. The identity of the original thief, the identity of the owner, or the identity of the person from whom (he/she) received the property is immaterial. Thus, the elements that the State must prove beyond a reasonable doubt to convict the defendant of this charge are:
1. That the property in question was stolen. Property is considered stolen when it is unlawfully taken from another without permission with the purpose of depriving the other of it permanently....
2. That the defendant knowingly received or acquired possession of it....
3. That at the time (he/she) acquired possession of it (he/she) knew it had been stolen or believed that it probably had been stolen....
[Model Jury Charges, Receiving Stolen Property ( N.J.S.A. 2C:20-7a) (Approved June 22, 1982).] 1
The trial judge essentially followed the model charge when he instructed the jury. There was one substantial deviation. When defining stolen property, the judge omitted the phrase "purpose of depriving":
Property is considered stolen when it's unlawfully taken from another without permission with the purpose of permanently or for so extended a period as to appropriate a substantial portion of its economic value from the owner.
[Emphasis added.]
Upon the jury's request, the judge repeated his earlier charge for receiving stolen property. About one-half hour later, the jury asked the judge to explain receipt of stolen property. After repeating the statutory definition, the judge instructed:
It's obvious from the factual situation that the state presents in this case that the state is alleging that the defendant brought into this state moveable property of another, namely a motor vehicle, which he knew that had been stolen or believing that it was--it had probably been stolen. Because the state, although the state can't charge--the State of New Jersey can't charge him with a theft, that state is in effect charging that he knew it was stolen because he stole it down in Virginia. But it's not really pertinent to our discussion to worry about who stole it.
The question, and the questions presented in this, by the state's allegations are that the defendant brought the property into this state, the State of New Jersey, and that at the time that he did so he knew that it had been stolen or believed that it was--it had probably been stolen.
So the elements that the state has to prove are that the property in question was stolen, that the defendant knowingly received possession of it, and by that the state is alleging that he brought that stolen property into the State of New Jersey, and at the time that he did that, at the time that he acquired possession of the property in the State of New Jersey, which of course is the time that he brought it into the State of New Jersey, if he did, that he knew it had been stolen or that he believed that it probably had been stolen.
If the state has proven all of these elements beyond a reasonable doubt, then your verdict is guilty. If not, then the verdict is not guilty.
[Emphasis added.]
The following exchange took place between the judge and jury:
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