Opinion
DOCKET NO. A-5736-11T1
03-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY J. BLEVIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-09-0637. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial, a jury convicted defendant Troy Blevin of second-degree theft by failure to make a required disposition in an amount exceeding $75,000, N.J.S.A. 2C:20-9. The trial judge sentenced defendant to seven years in prison and ordered him to pay restitution.
On appeal, defendant raises the following arguments:
POINT I: THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below).We have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT II: THE ADMISSION OF EVIDENCE SUGGESTING THAT DEFENDANT HAD INTENTIONALLY FILED A FALSE INCOME TAX RETURN DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. [Not Raised Below].
I
The record reveals the following facts. Defendant, the sole principal of Bamcoe Construction, leased an office in Ocean City from Paul and Della Ostein. The Osteins planned a three-building development on property they owned and hired defendant as a project manager. They also hired an architect to develop the site and building plans. At defendant's suggestion, the Osteins decided to use steel instead of wood to construct the buildings, but the architect did not have the experience to complete the structural drawings. As defendant claimed prior experience working with steel, the Osteins asked defendant to locate someone to do the structural steel drawings.
Because they share the same last name, when referring to them individually, we will use Paul and Della's first name. We mean no disrespect.
As a result, defendant contacted Greg Sullivan, who owned Rancocas Steel, which prepared steel drawings. In turn, Sullivan asked Jason Toy, an independent mechanical engineer, to prepare the structural drawings. Toy completed his preliminary drawings on June 13, 2005 and his final revisions in August of that year.
When Sullivan sent Toy's drawings to defendant, the name of Rancocas Steel was printed in the title block. When the Osteins received the steel drawings from defendant, the title block was empty, and the drawings were stamped "approved" and had handwritten initials that were not Sullivan's or Toy's. The State's handwriting expert testified that defendant had handwritten the initials on the final plans.
While the drawings were being prepared, defendant began to urge Paul to purchase the necessary steel as soon as possible. Defendant told the Osteins that if they ordered shortly, they could add their amount onto a larger order that he was in the process of placing for another project and get a better price. Defendant showed Paul two emails between defendant and Rancocas. The first email, purportedly from Carolyn Wiley at Rancocas, stated that the steel needed to be ordered by July 28, 2005 to be added onto the larger order. The second email, dated July 26, 2005, appeared to be from Bamcoe Construction, defendant's company, purchasing steel in the amount of $730,630.23. While the email address appeared to belong to Rancocas Steel, it was later found to have been set up by the office manager at Bamcoe Construction.
In due course, the Ocean City Planning Board held a hearing on the proposal on August 10, 2005, and voted to approve it. In order to pay for the project, the Osteins secured a construction loan. Prior to closing in September 2005, defendant provided two invoices for the steel to the Osteins and the lending bank. He made an express representation that he had already paid for the steel. Thus, the Osteins paid defendant the entire invoiced cost of the steel. In November, the Osteins gave defendant $350,000 for start-up costs, bringing the total given to defendant to over one million dollars.
Shortly thereafter, the Osteins became embroiled in litigation about the project against the Planning Board, which they lost in November 2007. While that litigation was ongoing, the Osteins authorized defendant to use part of the start-up costs to pay litigation fees. During this period, defendant continued to represent that the steel had already been ordered.
In April and May 2008, Paul twice asked defendant for an inventory of the steel. After receiving the second letter, defendant sent a list of barcodes to the Osteins. Defendant met with the Osteins in the last week of October 2009 to discuss the steel and the balance of the start-up costs. At this meeting, defendant continued to assert that the steel had already been ordered and asserted that it was scattered across several places, including Pittsburgh, Virginia, and West Virginia.
On April 6, 2010, Paul wrote to defendant requesting a more descriptive inventory of the steel and an estimate of expenses, which defendant did not supply. Defendant responded with a letter demanding a location to deliver the steel. Disturbed by the response, Paul contacted Rancocas and asked to speak to "Carolyn Wiley," whose name had appeared on the 2005 emails. During the call, Paul discovered that no one by that name ever worked for Rancocas. Paul also spoke with Sullivan, the company owner, who informed Paul that no steel had ever been ordered for the Osteins' project.
With this knowledge, Paul sent another letter to defendant asking for the location of the steel. Defendant sent a second letter demanding a location to deliver the steel, and stating that he would prepare an invoice for outstanding fees. After receiving this letter, Paul filed a criminal complaint against defendant with the Cape May Prosecutor's office.
According to defendant's testimony, he never ordered steel for the Osteins' project or represented to anyone that he had paid for the steel. He explained that he would never order steel for a building for which the final permit had not been issued. Rather, defendant claimed that Sullivan urged the Osteins in 2005 to order the steel as soon as possible. While the initial payment from the Osteins was to purchase the steel, later Paul authorized him to spend the money for costs on the project and to compensate him for the work he had done for them since 2003.
On September 21, 2010, the grand jury returned an indictment against defendant for one count of theft by failure to make a required disposition in the second degree, N.J.S.A. 2C:20-9. Defendant was tried by a jury over a period of more than two weeks. On April 25, 2012, the jury returned a verdict of guilty. On June 8, 2012, the trial judge sentenced defendant to seven years in prison, and ordered defendant to pay $949,689.20 as restitution to the Osteins. This appeal followed.
II
Defendant's first assertion of error is that the prosecutor's improper cross-examination violated his right to a fair trial. Defendant argues that the prosecutor inappropriately cross-examined him by asking him to characterize the State's witnesses as liars, by questioning whether he had documentary support for a claim he made about the use of certain funds, and by inquiring about defendant's "extravagant lifestyle." Defendant argues that these three lines of questioning had the capacity to taint the jurors' decision-making process, and that despite defendant's failure to object at the time, the resulting prejudice justifies reversal.
Prosecutors are required to act in accord with fundamental principles of fairness. State v. Wakefield, 190 N.J. 397, 436 (2007). The job of a prosecutor is peculiar; they are tasked not to win, but to see that "'justice shall be done.'" Ibid. (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). While prosecutors may strike hard blows in presenting their case, they may not strike "foul ones." Ibid. And if a prosecutor crosses the line from zealous enforcement of the law into foul play, a reviewing court will reverse a conviction. Id. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)).
The question of whether alleged misconduct has prejudiced a defendant sufficient to reverse a conviction is whether on the whole the conduct was "'so egregious as to deprive defendant of a fair trial.'" Ibid. (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). A defendant must establish two separate prongs to justify reversing a conviction based on prosecutorial misconduct: (1) the prosecutor's conduct must be "clearly and unmistakably improper" and (2) it "must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." Id. at 438 (quoting Papasavvas, supra, 163 N.J. at 625) (internal quotations omitted). As part of this analysis, reviewing courts should consider whether a timely objection was made by the defense, and whether the trial court sustained the objection. Ibid.
Our courts have frequently admonished prosecutors for asking one witness whether another witness is lying. See State v. Bunch, 180 N.J. 534, 549 (2004); State v. T.C., 347 N.J. Super. 219, 237-38 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999). Thus, the prosecutor's questions asking defendant to determine if the witnesses were lying, were improper. Bunch, supra, 180 N.J. at 549; see also T.C., supra, 347 N.J. Super. at 237-38. Despite the improper nature of the prosecutor's conduct, under the circumstances of this case, the conduct did not substantially prejudice defendant's right to a fair trial. Bunch, supra, 180 N.J. at 549; T.C., supra, 347 N.J. Super. at 238.
The lack of prejudice has support in numerous places in the record. First, defendant's attorney did not find the conduct prejudicial as evidenced by the attorney's failure to object at the time. T.C., supra, 347 N.J. Super. at 238. Second, while the question was improper in form, it was not substantively flawed, as the prosecutor's question focused on specific inconsistencies between defendant's testimony and the testimony of witnesses of the State. T.C., supra, 347 N.J. Super. at 238. Additionally, any potential prejudice from the question was cured when the trial judge instructed the jury prior to deliberation that it is the jury's role to determine the credibility of witnesses. Ibid. Finally, we note that defendant's conviction was based on more than the credibility of the State's witnesses, as the State produced numerous documents sent by defendant where he continued to make false representations that he had already ordered the steel. Consequently, when considering the totality of the case, we find that defendant's right to a fair trial was not substantially prejudiced on the basis of this questioning.
Defendant additionally objects to certain questions the prosecutor asked during cross-examination concerning defendant's claim that he had bought a book store during this period with his own funds from another bank account. Specifically, the prosecutor asked defendant if he brought the bank account records to court.
Q: When you heard the testimony of Detective Infusino related to these specific accounts, did you bring in any documentation to support your balance in this Commerce Account?
A: No.
Q: Though there were other mornings that you came in and you brought in documents, correct?
A: No, I have the same folder I've been bringing in.
Q: You're telling us here today that there were mornings before trial that you never came in and brought new documents in?
A: I don't think they were new documents. I think I've been carrying them around and as the testimony comes up I bring up the backup for it.
Q: Okay so you do bring backup for documents that support your position?
A: Yes.
Q: But not when it related to the bank accounts, right?
A: No.
We do not find any error in this set of questions. We recognize that it is "a basic tenet of our criminal jurisprudence that a defendant has no obligation to establish his [or her] innocence." State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). However, once a criminal defendant takes the stand, the State is free to question the defendant on cross-examination on matters affecting credibility, including inconsistencies in his or her testimony with the record. See State v. Brown, 190 N.J. 144, 158-59 (2007). Here, the prosecutor's questions were directed to defendant's credibility concerning facts he testified about on direct and did not impermissibly shift the burden of proof. Moreover, any potential prejudice that may have resulted from the question was cured by the trial judge's thorough jury instruction that repeatedly emphasized that the burden of proof was on the State to prove each element of the offense beyond a reasonable doubt. State v. Jenkins, 349 N.J. Super. 464, 479 (App. Div.), certif. denied, 174 N.J. 43 (2002).
Lastly, defendant argues that the State's improper and irrelevant references to his "extravagant lifestyle" unduly prejudiced the jurors against him. We find this argument unpersuasive. One element in the crime of theft by failure to make a required disposition requires proof that a defendant took another's property and dealt with the property as if it was his or her own. N.J.S.A. 2C:20-9. While defendant stipulated to spending the money, the nature of the expenditures was in dispute at the trial. Defendant asserted that he spent the money in connection with the Osteins' business while the State suggested that he used the funds on personal expenditures. Thus, the State's questions about defendant's lifestyle and how he funded it during the applicable period were relevant to defendant's charges. In light of the charge against defendant, the questions were appropriate and not unfairly prejudicial.
In sum, on review of the challenged portions of the prosecutor's cross-examination, we find that it was generally appropriate and even where the prosecutor engaged in improper behavior, it did not substantially prejudice defendant's right to a fair trial.
III
Defendant's second claim of error is that the State admitted improper "other crimes" evidence "suggesting" that defendant filed a false tax return. Here defendant and the State entered into a pre-trial stipulation that defendant had deducted over $800,000 from his gross receipts or sales for "materials and supplies" in his 2005 income tax return. In defendant's direct testimony, he discussed the pretrial stipulation and explained that he took the deduction because he received the funds to purchase the steel, and did not want it to be charged as income to him. He stated that when he earned the money as income in later years, he reported it on his tax returns.
The elements of filing a false tax return under 26 U.S.C.A. § 7206(1) are: 1) "making and subscribing of a tax return which contained a written declaration that it was made under the penalties of perjury;" (2) by one who "did not believe the return to be true and correct as to every material matter;" and (3) who "acted in a willful, as opposed to a negligent manner." United States v. Edwards, 777 F.2d 644, 651 (11th Cir. 1985), cert. denied, 475 U.S. 1123, 106 S. Ct. 1644, 90 L. Ed. 2d 189 (1986).
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During cross-examination on this prior testimony, the following exchange took place.
Q: And that deduction served to reduce your income, correct?
A: I believe so.
. . . .
Q: What did that figure, in part, pertain to?
A: The possibility of ordering steel and paying for the crane and other items, yes.
Q: Okay. But the tax law doesn't provide that you're allowed to take a deduction for the possibility of doing anything, right? You would agree with me on that.
A: I don't understand tax law. H&R Block did it for us and we provided them the information.
Q: You provided them the information though, right?
A: Yes.
Q: And you provided them information that seems to suggest that in part you paid that money for steel, right?
A: For the whole package.
Q: Well for the whole package then.
A: That it was going to be used. Now at a later date because we got past '05.
Q: But the information that you provided for the purposes of your tax return indicated that that happened in '05, right?
A: That is correct.
Q: That's the year that you took the deduction, right?
A: That is correct.
Q: Not for some future costs, for the cost that was incurred in '05, or which you said was incurred in '05, right?
A: It was supposed to occur in '05.
Evidence of prior bad acts is not admissible to prove that a criminal defendant has a propensity to engage in criminal activity or acted in conformity with prior criminal or wrongful activity. N.J.R.E. 404(b). The concern with such evidence is that "the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)) (internal quotations omitted).
For character evidence to be admitted, four requirements must be met: (1) the evidence "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 (internal quotations and citations omitted). The court later limited the applicability of the second requirement to cases that involve circumstances like Cofield. State v. Williams, 190 N.J. 114, 131 (2007).
While our standard of review is usually one of deference to the trial court's decisions on evidentiary matters, if the trial court fails to conduct a Cofield hearing when it is required, appellate courts review the admissibility of the evidence de novo. State v. Jones 425 N.J. Super. 258, 274 (App. Div. 2012) (citing State v. Rose, 206 N.J. 141, 157-58 (2011)). When evidence is admitted pursuant to N.J.R.E. 404(b), the court must give a limiting instruction clearly explaining the permitted and prohibited uses of the evidence. State v. Nance, 148 N.J. 376, 391 (1997). However, even if an appropriate limiting instruction is not given, a defendant on appeal must still carry his or her burden of establishing plain error and establish that the error was "'clearly capable of producing an unjust result.'" State v. G.S., 145 N.J. 460, 473 (1996).
In the present case, we are not convinced that the prosecutor's passing query about whether under the tax law a tax deduction can be taken for the "possibility of doing anything" introduced "evidence of other crimes, wrongs, or acts" under N.J.R.E. 404(b). The State claimed that the deduction for the purchase of the steel on defendant's 2005 tax return both demonstrated defendant's state of mind, and corroborated the State's evidence and testimony that defendant had made representations in 2005 that he had purchased the steel. While the prosecutor's question carried a certain implication that such a deduction may be improper, she did not offer any testimony proving the elements of the crime or even further question defendant on the propriety of taking the deduction. Further, in answer to the question of whether it was an allowable tax deduction, defendant asserted that he explained the situation to his tax preparer who made the determination that it was allowable in 2005, which the prosecutor did not challenge.
Moreover, even if this mere suggestion of a possible wrong could be considered evidence of "other crimes, wrongs, or acts" under N.J.R.E. 404(b), we are satisfied that no error occurred that warrants reversal due to plain error. First, we note that defendant raised the subject of the tax return on direct examination and did not object to the prosecutor's question during cross-examination. This failure to object demonstrates that "counsel did not perceive the conduct was prejudicial and also made it impossible for the court to take timely curative action to ameliorate any adverse effect from the improper questioning." T.C., supra, 347 N.J. Super. at 238. Of greater importance, defendant has not established that the mere fleeting suggestion during the lengthy trial that the deduction might have been improper was "clearly capable of producing an unjust result." R. 2:10-2. Indeed, the testimonial and documentary evidence that defendant committed the charged crime was overwhelming. G.S., supra, 145 N.J. at 476.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION