NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0678-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGIE WALLACE,
Defendant-Appellant. ________________________
Argued May 11, 2022 – Decided July 15, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-11- 1721.
Emily A. Vance, admitted pursuant to Rule 1:21-3(c), argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Perrone, First Assistant Deputy Public Defender, of counsel and on the briefs; Harris Fischman and Justin D. Ward, admitted pursuant to Rule 1:21-3(c), on the briefs).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Deborah Bartolomey, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Angie Wallace of third-degree burglary,
N.J.S.A. 2C:18-2(a)(1); third-degree conspiracy to commit burglary, N.J.S.A.
2C:5-2(a)(1) and 2C:18-2(a)(1); and third-degree theft, N.J.S.A. 2C:20-3(a).
The convictions all arose out of a burglary at a convenience store. Defendant
appeals, arguing, among other things, that there was insufficient evidence to
convict her because there was no evidence linking her to the break-in or theft.
Having reviewed the record, we agree and reverse her convictions.
I.
We summarize the facts from the evidence presented at trial. In the early
morning hours of April 12, 2016, two individuals broke into a mini-mart store
at a gas station in Edison (the Mini-mart). The Mini-mart was closed but had
video surveillance cameras that recorded the break-in. The video footage
showed an object thrown against the glass front door, the glass shattered, and a
man and woman were then seen entering the Mini-mart. The man stepped
directly in front of the camera, took several rolls of lottery tickets, and handed
them to the woman who was near the doorway. The man then grabbed other
items from behind the counter before exiting the Mini-mart. Video from another
A-0678-19 2 camera outside the Mini-mart showed two individuals walking towards the
Mini-mart and, shortly thereafter, walking away.
The Mini-mart had an alarm system, and the police and store owner were
notified. When the police responded, the intruders were gone, but the police
observed a ransacked store. The owner also came to the Mini-mart and, after
surveying the scene, reported that lottery tickets and cigarettes had been stolen.
The owner estimated that the lottery tickets were worth approximately $7,000.
During the ensuing investigation, the police collected the serial numbers
of the stolen lottery tickets and sent a subpoena to the Lottery Commission to
obtain information about locations where someone may have attempted to cash
the stolen lottery tickets. Based on information from the Lottery Commission,
the police learned that on April 12, 2016, hours after the break-in, some of the
lottery tickets had been presented at three local stores: Vilma Deli, Rahway
Discount Liquors, and Bravo gas station.
Thereafter, Detective Nicholas Puccio, who was involved in the burglary
investigation, visited those stores. At Vilma Deli, Puccio spoke with the owner
who reported a man had tried to cash several lottery tickets on April 12, 2016.
The deli had security cameras that had recorded the owner's interaction with the
man. Puccio reviewed the video footage but could not download the footage.
A-0678-19 3 Puccio, therefore, took photographs of some of the images on the video footage,
including a photograph of the man.
When Puccio visited Rahway Discount Liquors, he met with the manager,
who reported that a woman had attempted to cash a lottery ticket on April 12,
2016. The manager later testified that when the woman attempted to cash a
lottery ticket, he refused to cash it because of an alert requiring that the ticket
be submitted to the Lottery Commission, and the woman left the store. That
interaction was captured on the store's video surveillance system. Puccio could
not download that video, but he took photographs of images from the video
footage, including several photographs of a woman and of a vehicle in the store's
parking lot.
At the Bravo gas station Puccio met with a worker and reviewed store
security video footage of someone attempting to cash lottery tickets on April 12,
2016. Again, the video was not preserved, but a photograph was taken of a
woman who appeared on the footage. Puccio later testified at trial that no tickets
cashed at Bravo were identified as missing or stolen.
On April 21, 2016, Puccio prepared a summary of information concerning
what the police had learned about the burglary. That information included
photographs of the man at the Mini-mart and a woman at an unidentified
A-0678-19 4 location. The summary also included a description of a dark color, older-model
Jeep that had been observed in video footage from one of the convenience stores.
The summary was then sent to police agencies throughout New Jersey.
In response, Puccio learned that a Jeep, matching the description of the
vehicle in his summary, had been stopped for speeding on April 21, 2016. The
police were then able to obtain the license plate number of the vehicle and
learned that co-defendant Charles Johnson was the registered owner. The police
also obtained Johnson's address and a picture of Johnson from the Motor Vehicle
Commission (MVC). In addition, the police learned that defendant spent time
with Johnson and, therefore, also obtained her address and her MVC photograph.
Thereafter, the police surveilled defendant's and Johnson's homes. During
the surveillances, police observed Johnson driving a brown 1989 Jeep Cherokee.
They also observed the Jeep parked outside defendant's home on several
occasions at different times of day. Defendant was also seen riding in the Jeep
as a passenger.
On May 5, 2016, Johnson was arrested, and his Jeep was impounded. The
police obtained a warrant to search the Jeep and found ten lottery tickets that
police later confirmed matched some of the tickets reported as stolen from the
Mini-mart.
A-0678-19 5 Defendant and Johnson were charged with various crimes related to the
burglary.1 They were tried together. At trial, the jury heard testimony from
fourteen witnesses. Neither defendant nor co-defendant Johnson testified at
trial. The State submitted numerous exhibits, including recordings of the videos
from the Mini-mart, a photograph of the man who appeared on the Mini-mart
video, photographs of people and vehicles taken from the surveillance footage
from the Rahway Discount Liquors and Bravo Gas stores, MVC photographs of
defendant and Johnson, and a report concerning the stolen lottery tickets
prepared by an employee of the Lottery Commission.
The police officer who had stopped Johnson's Jeep for speeding testified
at trial.
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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-0678-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGIE WALLACE,
Defendant-Appellant. ________________________
Argued May 11, 2022 – Decided July 15, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-11- 1721.
Emily A. Vance, admitted pursuant to Rule 1:21-3(c), argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Perrone, First Assistant Deputy Public Defender, of counsel and on the briefs; Harris Fischman and Justin D. Ward, admitted pursuant to Rule 1:21-3(c), on the briefs).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Deborah Bartolomey, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Angie Wallace of third-degree burglary,
N.J.S.A. 2C:18-2(a)(1); third-degree conspiracy to commit burglary, N.J.S.A.
2C:5-2(a)(1) and 2C:18-2(a)(1); and third-degree theft, N.J.S.A. 2C:20-3(a).
The convictions all arose out of a burglary at a convenience store. Defendant
appeals, arguing, among other things, that there was insufficient evidence to
convict her because there was no evidence linking her to the break-in or theft.
Having reviewed the record, we agree and reverse her convictions.
I.
We summarize the facts from the evidence presented at trial. In the early
morning hours of April 12, 2016, two individuals broke into a mini-mart store
at a gas station in Edison (the Mini-mart). The Mini-mart was closed but had
video surveillance cameras that recorded the break-in. The video footage
showed an object thrown against the glass front door, the glass shattered, and a
man and woman were then seen entering the Mini-mart. The man stepped
directly in front of the camera, took several rolls of lottery tickets, and handed
them to the woman who was near the doorway. The man then grabbed other
items from behind the counter before exiting the Mini-mart. Video from another
A-0678-19 2 camera outside the Mini-mart showed two individuals walking towards the
Mini-mart and, shortly thereafter, walking away.
The Mini-mart had an alarm system, and the police and store owner were
notified. When the police responded, the intruders were gone, but the police
observed a ransacked store. The owner also came to the Mini-mart and, after
surveying the scene, reported that lottery tickets and cigarettes had been stolen.
The owner estimated that the lottery tickets were worth approximately $7,000.
During the ensuing investigation, the police collected the serial numbers
of the stolen lottery tickets and sent a subpoena to the Lottery Commission to
obtain information about locations where someone may have attempted to cash
the stolen lottery tickets. Based on information from the Lottery Commission,
the police learned that on April 12, 2016, hours after the break-in, some of the
lottery tickets had been presented at three local stores: Vilma Deli, Rahway
Discount Liquors, and Bravo gas station.
Thereafter, Detective Nicholas Puccio, who was involved in the burglary
investigation, visited those stores. At Vilma Deli, Puccio spoke with the owner
who reported a man had tried to cash several lottery tickets on April 12, 2016.
The deli had security cameras that had recorded the owner's interaction with the
man. Puccio reviewed the video footage but could not download the footage.
A-0678-19 3 Puccio, therefore, took photographs of some of the images on the video footage,
including a photograph of the man.
When Puccio visited Rahway Discount Liquors, he met with the manager,
who reported that a woman had attempted to cash a lottery ticket on April 12,
2016. The manager later testified that when the woman attempted to cash a
lottery ticket, he refused to cash it because of an alert requiring that the ticket
be submitted to the Lottery Commission, and the woman left the store. That
interaction was captured on the store's video surveillance system. Puccio could
not download that video, but he took photographs of images from the video
footage, including several photographs of a woman and of a vehicle in the store's
parking lot.
At the Bravo gas station Puccio met with a worker and reviewed store
security video footage of someone attempting to cash lottery tickets on April 12,
2016. Again, the video was not preserved, but a photograph was taken of a
woman who appeared on the footage. Puccio later testified at trial that no tickets
cashed at Bravo were identified as missing or stolen.
On April 21, 2016, Puccio prepared a summary of information concerning
what the police had learned about the burglary. That information included
photographs of the man at the Mini-mart and a woman at an unidentified
A-0678-19 4 location. The summary also included a description of a dark color, older-model
Jeep that had been observed in video footage from one of the convenience stores.
The summary was then sent to police agencies throughout New Jersey.
In response, Puccio learned that a Jeep, matching the description of the
vehicle in his summary, had been stopped for speeding on April 21, 2016. The
police were then able to obtain the license plate number of the vehicle and
learned that co-defendant Charles Johnson was the registered owner. The police
also obtained Johnson's address and a picture of Johnson from the Motor Vehicle
Commission (MVC). In addition, the police learned that defendant spent time
with Johnson and, therefore, also obtained her address and her MVC photograph.
Thereafter, the police surveilled defendant's and Johnson's homes. During
the surveillances, police observed Johnson driving a brown 1989 Jeep Cherokee.
They also observed the Jeep parked outside defendant's home on several
occasions at different times of day. Defendant was also seen riding in the Jeep
as a passenger.
On May 5, 2016, Johnson was arrested, and his Jeep was impounded. The
police obtained a warrant to search the Jeep and found ten lottery tickets that
police later confirmed matched some of the tickets reported as stolen from the
Mini-mart.
A-0678-19 5 Defendant and Johnson were charged with various crimes related to the
burglary.1 They were tried together. At trial, the jury heard testimony from
fourteen witnesses. Neither defendant nor co-defendant Johnson testified at
trial. The State submitted numerous exhibits, including recordings of the videos
from the Mini-mart, a photograph of the man who appeared on the Mini-mart
video, photographs of people and vehicles taken from the surveillance footage
from the Rahway Discount Liquors and Bravo Gas stores, MVC photographs of
defendant and Johnson, and a report concerning the stolen lottery tickets
prepared by an employee of the Lottery Commission.
The police officer who had stopped Johnson's Jeep for speeding testified
at trial. He explained that there was a woman in the Jeep with Johnson, and he
had obtained her name but could not recall it during trial.
An employee of the Lottery Commission testified that she had created a
report concerning lottery tickets in response to the police's subpoena, some of
which were entered into the Commission's system as missing or stolen. She
explained that she had retrieved information from the Commission's internal
1 Johnson also filed an appeal, which we address in a separate unpublished opinion. See State v. Johnson, Docket No. A-0680-19. A-0678-19 6 database on the tickets requested in the subpoena, including a list of times and
locations where the lottery tickets had been scanned.
At trial, defendant objected to the admission of the photographs from the
surveillance footage and the report from the Lottery Commission. The trial
court overruled those objections and admitted the photographs and report into
evidence. The trial judge initially excluded, under N.J.R.E. 403, the photograph
of a woman taken from the Bravo video but later admitted it on the grounds that
defense counsel had "opened the door" while cross-examining Detective Puccio.
Thereafter, defendant requested an adverse-inference instruction concerning
Puccio's failure to preserve the surveillance videos from the stores he had
visited. The trial court denied that request.
At the close of the State's case, defendant moved for a judgment of
acquittal, but the trial judge denied the motion. The jury found defendant guilty
of burglary, conspiracy to commit burglary, and theft. Her motions for a
judgment of acquittal notwithstanding the verdict and for a new trial were
denied. She now appeals from her convictions.
II.
On appeal, defendant makes four arguments:
POINT I – THE IDENTIFICATION EVIDENCE AGAINST [DEFENDANT] WAS INSUFFICIENT.
A-0678-19 7 A. The Identification Evidence Against [Defendant:]
1. Burglary Videos[;]
2. Still Photographs from Rahway Discount Liquors and Bravo Gas[; and]
3. Alleged Relationship with Mr. Johnson.
B. Taken Together, the Identification Evidence Was Insufficient.
POINT II – THE PHOTOGRAPHS FROM RAHWAY DISCOUNT LIQUORS AND BRAVO GAS, AND THE RECORDS FROM THE DIVISION OF LOTTERY, WERE IMPROPERLY ADMITTED.
A. "Opening the Door" and Undue Prejudice.
B. Improper Authentication.
C. Business-Record Exception.
POINT III – THE COURT ERRED IN DENYING AN ADVERSE-INFERENCE INSTRUCTION.
POINT IV – [DEFENDANT] WAS IMPROPERLY DENIED ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM.
Having reviewed the evidence presented at trial, we conclude that there
was insufficient evidence to identify defendant as one of the persons who broke
A-0678-19 8 into and took items from the Mini-mart. Accordingly, we reverse her
convictions and vacate her judgment of conviction.
At the close of the State's case, defendant moved for a judgment of
acquittal. Accordingly, we apply the standard for considering motions for a
judgment of acquittal in evaluating defendant's arguments about the sufficiency
of the evidence against her.
A court should enter an order for a judgment of acquittal only "if the
evidence is insufficient to warrant a conviction." State v. Brown, 463 N.J.
Super. 33, 47 (App. Div. 2020) (quoting R. 3:18-1). The standard to determine
a motion for a judgment of acquittal is well-established:
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
When considering a motion of acquittal under Rule 3:18-1, the court "is
not concerned with the worth, nature or extent (beyond a scintilla) of the
evidence, but only with its existence, viewed most favorably to the State." State
v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J.
A-0678-19 9 Super. 336, 342 (App. Div. 1974)). "If the evidence satisfies that standard, the
motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). When
reviewing a motion for a judgment of acquittal, an appellate court uses a de novo
standard of review and applies the same standard used by a trial court. State v.
Williams, 218 N.J. 576, 593-94 (2014); State v. Kittrell, 145 N.J. 112, 130
(1996).
The critical factual issue on all three charges against defendant was her
identification as the woman who had accompanied a man while breaking into
and stealing lottery tickets and cigarettes from the Mini-mart on April 12, 2016.
To convict defendant on the charges of burglary or theft, the State needed to
prove beyond a reasonable doubt that defendant was the woman who had broken
into and had taken items from the Mini-mart. See N.J.S.A. 2C:18-2(a)(1)
(requiring that a person guilty of burglary enter a structure "with purpose to
commit an offense therein"); N.J.S.A. 2C:20-3(a) (stating a person is guilty of
theft if he or she "unlawfully takes, or exercises unlawful control over" another
person's property "with purpose to deprive [] thereof"). To convict defendant of
a conspiracy to commit burglary, the State needed to present evidence that
defendant had conspired with the man who had broken into the Mini-mart. See
N.J.S.A. 2C:5-2(a)(1) (stating a person is guilty of conspiracy to commit a crime
A-0678-19 10 if "with the purpose of promoting or facilitating its commission ," he or she
agrees with another person to "engage in conduct which constitutes such
crime"); N.J.S.A. 2C:18-2(a)(1) (requiring that a person guilty of burglary enter
a structure "with purpose to commit an offense therein").
No witness identified defendant as the woman who had broken into the
Mini-mart. Indeed, the trial judge granted motions precluding any attempt to
offer evidence of an out-of-court identification of defendant or an in-court
identification of defendant.
No physical evidence linked defendant to the burglary. Defendant's
fingerprints were not found in the Mini-mart. No physical evidence connected
defendant to the break-in.
Defendant was also not found to be in possession of any of the stolen
lottery tickets or cigarettes. Furthermore, there was no evidence concerning a
conspiracy between defendant and co-defendant Johnson.
The State's evidence against defendant consisted of (1) the video from the
Mini-mart; (2) photographs from Rahway Liquors and Bravo Gas; (3) testimony
from a police officer that a woman had been with co-defendant Johnson when
the police officer had stopped Johnson for speeding; and (4) testimony
concerning surveillance conducted by the police during which Johnson's Jeep
A-0678-19 11 had been seen parked outside defendant's home and defendant had been seen
riding in the Jeep as a passenger.
At trial, no one argued that the woman depicted in the video footage was
shown clearly enough to be identified. Instead, the only evidence the State
offered concerning defendant's identification were photographs of a woman at
the Rahway Liquor Store and the Bravo gas station at the times when someone
attempted to cash lottery tickets. Those photographs, however, were blurry and
not clear enough to allow a viewer to identify the woman depicted in the
photographs.
The State argues that the woman in the photographs from the Rahway
Liquor Store and the Bravo gas station is the same woman as pictured in the
MVC photograph of defendant. Even giving the State all reasonable inferences,
a fair and objective analysis of the photographs would not permit a reasonable
jury to find beyond a reasonable doubt that the photographs depict the same
person.
The officer who had stopped Johnson's Jeep for speeding candidly
acknowledged that he did not recall the name of the woman who was with
Johnson. Consequently, the police officer did not identify defendant as the
woman with Johnson.
A-0678-19 12 Finally, seeing Johnson's Jeep outside of defendant's home or defendant
in the Jeep with Johnson would allow a jury to reasonably conclude that the
defendant and Johnson spent time together. To assume that because Wallace
spent time with Johnson, she was with him when he broke into the Mini-mart,
would be speculation. Merely associating defendant with Johnson after he was
seen breaking into a store with a woman is insufficient evidence to establish
beyond a reasonable doubt that defendant was the woman with Johnson at the
In short, evaluating the State's evidence in its entirety and giving the State
the benefit of all reasonable inferences, there was insufficient evidence to
convict defendant of burglary, conspiracy to commit burglary, or theft. We,
therefore, reverse her convictions and vacate her judgment of conviction. Given
that ruling, we need not reach defendant's other arguments.
Reversed.
A-0678-19 13