NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5872-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEMALL D. BROWN,
Defendant-Appellant. _______________________
Submitted May 26, 2020 – Decided July 16, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 17-03- 0319.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Vincent Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A New Jersey State Trooper pulled over a vehicle driven by defendant
Jemall D. Brown for speeding on the New Jersey Turnpike. When the trooper
asked for defendant's credentials, he maintained he smelled burnt marijuana
emanating from the vehicle and requested consent to search the vehicle, which
defendant purportedly granted. The search led to the seizure of eighty-eight
credit cards and gift cards located in various places within the vehicle, and the
arrest of defendant and two passengers in the vehicle.
Following defendant's indictment, defendant's motion to suppress the
seized evidence claiming the search was unconstitutional, was denied. In the
subsequent trial, a jury found defendant guilty of conspiracy to engage in the
fraudulent use of credit cards, N.J.S.A. 2C:5-2(a)(l) and 2C:21-6(h). Defendant
was found not guilty of eighty-eight counts of knowingly using any counterfeit,
altered or fraudulently obtained credit cards, N.J.S.A. 2C:21-6(h), and one count
of intent to defraud a purported issuer or organization providing something of
value by using a falsely made or embossed credit card, N.J.S.A. 2C:21-6(c)(5).
Before us, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE BECAUSE THE STATE FAILED TO PROVE THAT BROWN UNEQUIVOCALLY
A-5872-17T4 2 CONSENTED TO THE SEARCH AND BECAUSE HE WAS DEPRIVED OF AN OPPORTUNITY TO EXERCISE HIS RIGHT TO TERMINATE THE SEARCH.
POINT II
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL ON THE CONSPIRACY CHARGE BECAUSE NO PROOFS WERE PRESENTED THAT THE OCCUPANTS OF A RENTED CAR HAD CONSPIRED TO USE FRAUDULENT CREDIT CARDS THAT WERE ALMOST ENTIRELY IN THE POSSESSION OF THE FRONT-SEAT PASSENGER.
Having considered the record before us and the applicable law, we affirm
in part and reverse and remand in part.
I.
A. Suppression Hearing
At the two-day motion to suppress hearing, the State presented the
testimony of New Jersey State Trooper Anthony Wolcott regarding the
warrantless stop and search of defendant's rental car on November 19, 2014, at
approximately 2:16 p.m. In addition, the State presented a motor vehicle
recording (MVR) video from Wolcott's police cruiser, depicting the stop of
defendant's vehicle and the subsequent interactions with him. Defendant
testified as well.
A-5872-17T4 3 Wolcott testified he was parked in his patrol car and running a speed
detecting laser when he identified a vehicle traveling ninety miles per hour in a
sixty-five-miles-per-hour zone. He proceeded to follow the vehicle and
activated his lights to pull the vehicle over to the shoulder of the road. He
testified the vehicle took some time to pull over, and he observed someone in
the backseat moving around in the vehicle before it stopped.
When the vehicle stopped on the shoulder of the road and Wolcott walked
to the car, Wolcott stated he smelled burnt marijuana when he asked defendant,
the driver of the car, for his credentials. When Wolcott went back to his patrol
car to check on defendant's credentials, he notified the dispatcher he smelled
marijuana in defendant's vehicle. Upon returning to defendant's vehicle,
Wolcott asked defendant to step out of the car. After defendant complied,
Wolcott informed defendant he smelled burnt marijuana in the vehicle,
whereupon defendant acknowledged marijuana had been smoked in the vehicle
earlier that day. Wolcott told defendant he was being detained because of the
marijuana odor and put him in the back of the patrol car after handcuffing him.
Ossey Etienne, the backseat passenger in defendant's vehicle, was also
handcuffed and placed in the patrol car with defendant.
A-5872-17T4 4 Seeking to search defendant's car, Wolcott testified he read the consent-
to-search form to defendant twice. After the first reading, Wolcott stated
defendant "wanted to know if he could depart from the scene or what I would
do if he said no to the search. . . . I explained to him that I would speak to my
sergeant about requesting a search warrant . . . ." After Wolcott read the form a
second time, he stated defendant "nodded yes, said sure. I said yes? He said
yes. Shrugged his shoulders. Shrugged his shoulders." Wolcott radioed his
sergeant informing him of defendant's consent to the search, without any
comment from defendant. Even though defendant supposedly consented,
Wolcott did not have him sign the form before the search because it was "[S]tate
[P]olice policy approved by the [A]ttorney [G]eneral's [O]ffice . . . to request
him to sign afterwards[.]" Defendant, however, refused to sign the consent-to-
search form when he was taken to the police station.
On cross-examination, Wolcott was asked: "[F]rom the video itself, . . .
would it be fair – just from listening from the layman's perspective . . . to say
[defendant] . . . stated sure and yes in the video?" Wolcott responded: "From
where I'm sitting that's what it looked like to me." He stated he read the consent-
to-search form a second time because he was seeking a clear yes or no answer
from defendant.
A-5872-17T4 5 Wolcott proceeded to search defendant's car while another trooper, Joe
Walsh, who had arrived at the scene for back-up, sat in the front seat of Wolcott's
patrol car to keep an eye on the handcuffed defendant and Etienne in the
backseat. Wolcott stated he could hear defendant from where he was searching
defendant's car but heard no request by defendant to stop the search. Wolcott
also stated Walsh never informed him that defendant voiced any objection while
the search was being conducted.
When the MVR was played during the hearing, only a portion of the
ninety-minute long video was played. Based upon Wolcott's testimony, the
following was shown: Wolcott pulling defendant's car over and obtaining his
credentials; Wolcott's interactions with defendant including the detainment,
handcuffing, questioning, and readings of the consent-to-search form; Wolcott
informing his sergeant that defendant consented to the search of his car; and the
moving of defendant and Wolcott's cars to enable the search to be conducted on
a safer stretch of the road.
Defendant testified he was traveling from Pennsylvania, where he visited
his brother, to New York, where he lived. The car he was driving was rented
from JFK Airport. He testified he did not know why Wolcott pulled him over
because he "was on the cruise control at 65 [miles per hour]." He explained he
A-5872-17T4 6 was arrested and placed in the back of Wolcott's patrol car because the trooper
claimed to have smelled marijuana coming from his vehicle, but he did not have
any marijuana on him or in the car.
Defendant testified that while handcuffed in the patrol car, Wolcott
requested consent to search the rental car. He explained the first time he was
asked he responded stating, "what would happen if I said no. Then the officer
explained to me that a supervisor would come. Then the supervisor would have
to okay the warrant[.]" Walcott asked him for consent again and he recalled
responding by shrugging and telling him "I don't know. . . . I was basically
trying to tell [Wolcott] that I was unsure of how the process works. And I was
just waiting for a supervisor to arrive, which never happened."
Defendant testified that after saying "I don't know[,]" Wolcott began to
search his vehicle. On cross-examination, defendant alleged he did not hear
Wolcott radio his sergeant but did hear other comments Wolcott made. He
maintained there was no other state trooper with him in the patrol vehicle while
Wolcott was conducting the search. When asked if he objected to the search,
defendant stated:
I mean I couldn't object. I was arrested – well, detained, whatever they call it. And I was in the car with the windows up. So there was no way of me objecting until
A-5872-17T4 7 after when I got back to the precinct he asked me to sign the consent.
And I told him no.
....
Because a supervisor never came and gave the okay for a warrant.
While cross-examining defendant, the State replayed a portion of the MVR
video showing defendant's purported consent to the search.
The judge entered an order denying defendant's motion to suppress
accompanied with a five-page written decision. The judge determined Wolcott
had reasonable and articulable suspicion to pull defendant's car over because he
was exceeding the speed limit. When Wolcott walked up to the car's driver's
side, he smelled burnt marijuana emanating from inside the car. Defendant and
his two passengers were ordered out of the car and detained in handcuffs.
"Based on the MVR and credibility determinations," the judge decided
defendant gave knowing and voluntary consent to Wolcott's search.
Commenting on Wolcott's testimony, the judge found that after Wolcott read the
consent-to-search form to defendant twice, defendant shrugged his shoulders,
gave an affirmative nod, and said "sure." The judge found defendant's statement
unintelligible on the MVR video, but found "Wolcott's version more credible
A-5872-17T4 8 under the totality of the circumstances." The judge indicated the fact defendant
remained silent when Wolcott confirmed consent to search over the radio,
weighed in favor of Wolcott's testimony.
During the search, the judge determined defendant was in the backseat of
Walsh's patrol car with Walsh in the front seat. The judge found defendant's
testimony that Walsh was not in the car with him during the search was not
credible based upon Wolcott's testimony and the MVR video showed "the
shadow of the backup patrol officer [(Walsh)] . . . exiting . . . Wolcott's car
following the search." The judge determined Wolcott found "a partially smoked
marijuana cigarette and ninety-three (93) suspected fraudulent credit cards."1
inside defendant's car.
B. Trial
The same judge who decided defendant's motion to suppress presided over
the trial. The State presented the testimony of Wolcott and New Jersey State
Police Detective Kenneth Hoppe. Defendant neither testified nor presented any
witnesses.
1 Throughout the suppression motion and trial testimony and the judge's ruling, the cards seized in the search were referred to as "credit cards," "gift cards," "bank cards," or "debit cards." For the sake of convenience, unless specified otherwise, we will use the generic term of "credit card." A-5872-17T4 9 Wolcott's testimony mirrored his suppression hearing testimony. He did,
however, provide greater detail regarding the passengers in defendant's vehicle
and the alleged contraband recovered during the car's search. He recalled the
two passengers were Tavia Barnett, who was in the front passenger's seat, and
Etienne, who was in the back seat directly behind Barnett. In his search, Wolcott
found: (1) approximately .03 grams of marijuana in a partially smoked cigarette
placed in a half-empty soda bottle in the center console; (2) four credit cards in
the center console; (3) cigarette rolling papers and a credit card on Etienne's
person; (4) four credit cards in the glove box; (5) one Visa gift card on
defendant's person; (6) two credit cards in a handbag on the front passenger's
floorboard; (7) two credit cards on the front passenger's seat; and (8) eighty-two
credit, debit, and gift cards forming a rectangular brick of two organized stacks
compressed in a McDonald's bag that was then placed in a plastic bag situated
next to the handbag in the front passenger's floorboard.
Hoppe related his experience in investigating financial crimes, such as
credit card fraud. He testified to the contents of his report which detailed the
results of running eighty-three cards recovered by Wolcott's search through a
Magtek Pin 201004008 Card Reader. Hoppe described the device as:
[A] card reader[,] which was obtained from American Express to assist with credit card investigations by the
A-5872-17T4 10 State Police[,] and it is used to capture and record the information that's encoded on the magnetic strip on the back of credit cards and gift cards. . . . It attaches to a computer, records to a text file or Excel or a spreadsheet and you just run the card just the same as it would be run, you know, during the normal course of use.
He explained that by running a card through the mag reader, if it returned "a
number encoded on the magnetic strip . . . consistent with the number printed
on the face of the gift card" the card was legitimate. He testified after running
each seized card through the mag reader, he determined most were fraudulent.
When pressed on cross-examination, Hoppe stated, "[t]here were
numerous [cards] that were, at face value, fraudulent. Some of them you would
probably have to subpoena further information to know for sure." 2 However, on
redirect, Hoppe testified, based on his report, he believed with some level of
support, primarily because the information on the mag strips of each card did
not match the information on the front of the card, that sixty-three of the
confiscated cards from the McDonald's bag and the glove box were fraudulent.
At the conclusion of the State's case, defendant moved for a judgment of
acquittal as to the conspiracy charge. He argued the State presented "no
evidence of an agreement either through direct or circumstantial evidence . . . to
2 Based upon the contentions on appeal, it is unnecessary to address the exact information about each card. A-5872-17T4 11 show a conspiracy." The State opposed, contending that given defendant and
his passengers were in a rental car with a large amount of credit cards located in
several places in the car, the jury could infer defendant "was aware that they
were in the car," had control over them, and he was part of the conspiracy or an
accomplice for using them. Giving the State the benefit "of all its favorable
testimony as well as favorable inferences which reasonably could be drawn
therefrom," State v. Reyes, 50 N.J. 454, 459 (1967), the judge denied the motion.
On the record, the judge noted the State established defendant was driving a
rental car with two passengers and a large amount of fraudulent credit cards
found inside, and a reasonable jury could determine "the vehicle was rented to
obtain or later use the credit cards." The judge also held a reasonable jury could
find defendant had agreed with the other passengers to obtain or use the credit
cards.
As mentioned, the jury found defendant guilty of conspiracy to engage in
the fraudulent use of credit cards. Defendant was sentenced to two years of
probation, transferable to New York.
II.
Defendant contends the judge erred in denying his motion to suppress the
seizure of the credit cards. His challenge intertwines three issues: (1) whether
A-5872-17T4 12 he gave consent to search the vehicle; (2) whether he had the ability to stop the
search; and (3) whether his consent was voluntarily given or coerced. The State
does not address every argument put forth by defendant and instead makes two
opposing arguments: (1) the evidence relied on by defendant is not reviewable
because it is not in the record; and (2) even if the MVR video was viewed, the
judge had "ample support . . . [for his] finding that defendant knowingly and
voluntarily consented to the search of the rented motor vehicle . . . ." The State
does not address whether there was probable cause to search defendant's car
based upon the odor of burnt marijuana. 3
Before we separately address each issue raised by defendant, we briefly
discuss some overriding principles. The United States Constitution and the New
Jersey Constitution both guarantee the right of persons to be free from
unreasonable searches and seizure in their home. U.S. Const. amend. IV; N.J.
3 Pursuant to State v. Witt, 223 N.J. 409 (2015), police officers may conduct a warrantless, nonconsensual search during a lawful roadside stop "in situations where: (1) the police have probable cause to believe the vehicle contains evidence of a criminal offense; and (2) the circumstances giving rise to probable cause are unforeseeable and spontaneous." State v. Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019) (citing Witt, 223 N.J. at 447-48). "New Jersey courts have [long] recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." State v. Walker, 213 N.J. 281, 290 (2013) (internal quotation marks omitted) (quoting State v. Nishina, 175 N.J. 502, 515- 16 (2003)). A-5872-17T4 13 Const. art. I, ¶ 7. Warrantless searches are presumptively unreasonable unless,
among other exceptions, voluntary consent to the search, without coercion or
duress, is provided. State v. Domicz, 188 N.J. 285, 308 (2006); see also State
v. Bryant, 227 N.J. 60, 69 (2016).
An "essential element" of such consent is the individual's "knowledge of
the right to refuse [it]." State v. Johnson, 68 N.J. 349, 353-54 (1975). Whether
spoken or written, such "assent . . . is meaningless unless the consenting party
understood his or her right to refuse" to give it. State v. Suazo, 133 N.J. 315,
323 (1993) (citing Johnson, 68 N.J. at 353-54). A person has the right to
withdraw consent to search at any time by being present during the search, and
failure to afford the person the opportunity to exercise such right will result in
suppression of the search. See State v. Hampton, 333 N.J. Super 19, 30 (App.
Div. 2000). Consent is generally a factual question, determined by an
assessment of the totality of the circumstances. State v. Koedatich, 112 N.J.
225, 264 (1988). However, trial courts must adhere to established legal
principles in evaluating those circumstances.
A. Proof of Consent
Defendant contends the judge erred both in his factual findings and
application of the law when holding defendant gave consent to search his car.
A-5872-17T4 14 With respect to the judge's factual findings, defendant contends he did not give
"express and unequivocal consent to search his rental car . . . when he shrugged
his shoulders after he was read the consent-to-search form for the second
time[,]" as required by State v. Sugar, 100 N.J. 214, 233-35 (1985) (holding,
inter alia, consent to must be "unequivocal"). Because the judge based his
findings on the testimony of Wolcott and defendant, as well as viewing portions
of the MVR video, his findings were influenced by his "opportunity to hear and
see the witnesses," State v. Gamble, 218 N.J. 412, 424-25 (2014) (citation and
internal quotation marks omitted), and we see no reason to disturb them because
they were not "so clearly mistaken that the interests of justice demand
intervention and correction," State v. Robinson, 200 N.J. 1, 15 (2009) (citation
and internal quotation marks omitted). See State v. Elders, 192 N.J. 224, 244-
45 (2007) (holding while an appellate court may view the same video as the trial
court, the appellate court may not substitute its evaluation of the video
particularly where the trial court's determination on the motion is also based on
the judge's opportunity to hear and consider live testimony).
B. Ability to Withdraw Consent
Defendant seeks to discredit Wolcott's testimony that he had the
opportunity to withdraw consent to search or stop the search of his vehicle. In
A-5872-17T4 15 support, defendant points out Walcott's assertion that Walsh was with defendant
inside Walsh's patrol car when Wolcott was searching his car is contradicted at
the twelve-minute time frame of the MVR video where Walsh appears to be a
head-shaped shadow standing outside of the patrol car.
Defendant, however, fails to point out this contention was not raised
before the judge because this portion of the video during the suppression hearing
was not viewed based on the parties' mutual agreement. Since the judge did not
view this portion of the video in reaching his decision, we decline to do so. See
Robinson, 200 N.J. at 20 (holding "appellate courts will decline to consider
questions or issues not properly presented to the trial court when an opportunity
for such a presentation is available unless the questions so raised on appeal go
to the jurisdiction of the trial court or concern matters of great public interest" )
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Nonetheless, even accepting defendant's representations, that portion of
the video is not instructive in determining the outcome of the suppression motion
such that "the interests of justice demand intervention and correction" to allow
its consideration. Elders, 192 N.J. at 243. At best for defendant, the video
arguably shows Wolcott may not have known Walsh's every whereabouts while
Wolcott searched the car. At worst for defendant, the video arguably shows
A-5872-17T4 16 based on the shadow's location, Walsh could have been standing right next to
the window where defendant was seated in the patrol car and in close enough
proximity to allow defendant to waive, tap the window, or call out to get his
attention. More importantly, the judge found defendant's own testimony about
the whereabouts of Walsh during Walcott's search inaccurate. The judge
identified, by way of shadows, that an admitted portion of the MVR video shows
Walsh exiting the vehicle at the conclusion of the search.
In sum, we discern no basis in the record provided to take issue with the
judge's factual findings that defendant gave consent to Wolcott to search his car.
C. Voluntariness of Consent
Defendant argues he did not provide voluntary consent to the search
either orally or on the forms presented to him while he was already arrested and
in handcuffs. Defendant maintains the trial judge incorrectly deemed the
searches to be consensual, and the circumstances that produced his supposed
consent were inherently coercive. We agree.
In its seminal opinion State v. King, 44 N.J. 346 (1965), our Supreme
Court articulated a multi-prong test to guide our courts as to whether a person's
consent for police to search a dwelling after a motor vehicle stop without a
warrant was voluntary. Five decades later, the Court made clear in State v.
A-5872-17T4 17 Hagans 233 N.J. 30, 39-43 (2018), the King factors must be considered when
there is a question as to whether consent was voluntarily given to search a motor
vehicle. The following five "King factors" weigh against voluntariness, and
tend to show that a person's consent was coerced:
(1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; and (5) that consent was given while the defendant was handcuffed.
[Id. at 352-53.]
Additionally, King delineated three offsetting factors that can weigh in
favor of a finding of voluntariness. Those offsetting factors are whether: "(1)
consent was given where the accused had reason to believe that the police would
find no contraband; (2) defendant admitted his guilt before consent; (3)
defendant affirmatively assisted the police officers." Id. at 353.
The Court in King explained that the "existence or absence of one or more
of the above factors is not determinative of the [voluntariness] issue." Ibid.
Because the factors "are only guideposts to aid a trial judge in arriving at his
conclusion," a trial judge should determine the issue of voluntary consent by
A-5872-17T4 18 considering "the totality of the particular circumstances of the case before him."
Ibid.; see also Hagans, 233 N.J. at 42-43 (reiterating the King factors should not
be applied mechanically because the totality of circumstances dictates the
outcome). Ultimately, the Court concluded in King, that "the trial judge is in a
better position to weigh the significance of the pertinent factors than is an
appellate tribunal." Ibid. (emphasis added).
Here, the judge's written opinion upholding the search of defendant's car
on consent grounds failed to address the King factors. Consequently, we remand
this matter for the judge to reevaluate whether Wolcott had sufficient lawful
grounds at the time of the motor vehicle stop based upon defendant's consent to
search his car. If the judge finds such a lawful basis lacking, he shall issue
appropriate relief, subject to the State's right of appeal. Conversely, if the judge
rules the consent valid, defendant may file a new appeal from that determination.
III.
Finally, we turn to defendant's contention the judge erred in denying his
motion for a judgment of acquittal under Rule 3:18-1. The long-established
standard to determine a motion for a judgment of acquittal at the conclusion of
the State's case was articulated in Reyes:
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be
A-5872-17T4 19 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.
[50 N.J. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961)).]
Under Rule 3:18-1, the judge "'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. 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). We adhere to the same standard. R. 2:10-1 ("The
trial court's ruling on such a motion shall not be reversed unless it clearly
appears that there was a miscarriage of justice under the law."); see also State v.
Kittrell, 145 N.J. 112, 130 (1996).
Applying these well-established principles to defendant's conviction of
conspiracy to engage in the fraudulent use of credit cards, we discern no basis
to set aside the jury's verdict.
Under N.J.S.A. 2C:21-6(h), the crime of fraudulent use of credit cards is
defined as:
A-5872-17T4 20 A person who knowingly uses any counterfeit, fictitious, altered, forged, lost, stolen or fraudulently obtained credit card to obtain money, goods or services, or anything else of value; or who, with unlawful or fraudulent intent, furnishes, acquires, or uses any actual or fictitious credit card, whether alone or together with names of credit cardholders, or other information pertaining to a credit card account in any form, is guilty of a crime of the third degree.
To convict defendant of conspiracy to commit this crime, the State had to
satisfy N.J.S.A. 2C:5-2(a), which provides in pertinent part, that:
[a] person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
"[T]he agreement to commit a specific crime is at the heart of a conspiracy
charge." State v. Samuels, 189 N.J. 236, 245 (2007). It is well settled that a
conspiracy may be proven by circumstantial evidence. State v. Phelps, 96 N.J.
500, 509 (1984). Generally, circumstantial evidence is tested
by the rules of ordinary reasoning such as govern mankind in the ordinary affairs of life. While certain actions of each of the defendants, when separated from
A-5872-17T4 21 the main circumstances and the rest of the case, may appear innocent, that is not significant and undoubtedly appears in every case of criminal conspiracy.
[Samuels, 189 N.J. at 246 (quoting State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div. 1959)).]
Hence, "[a]n implicit or tacit agreement may be inferred from the facts and
circumstances[,]" State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992),
because co-conspirators generally act in silence and secrecy, State v. Cagno, 211
N.J. 488, 512 (2013).
Defendant contends, as he did before the trial judge, the State failed to
prove "there was . . . evidence of an agreement among the three occupants of the
[rental car] . . . to conspire to fraudulently use any credit cards." He asserts the
"mere presence of others in the car" is not enough to prove there was a
conspiracy. Defendant contends the presence of the credit cards in a bag owned
by someone else, located next to the feet of Barnett, within her complete and
sole control, does not establish he possessed the credit cards to prove he
conspired to use them. He further submits the judge's determination the vehicle
was rented with the "purpose of obtaining the fraudulent credit cards appears to
have been [a] mistake[]" because the State did not present evidence it had been
rented or when the rental period had started. Defendant points out he was pulled
over nineteen days after he rented the vehicle, which was six days past the initial
A-5872-17T4 22 return date, instead of renting it the same day the credit cards were found in the
vehicle. Thus, he argues, the State did not show the rental was "with specific
purpose of traveling to obtain [and or] use the fraudulent credit cards."
Defendant compares his situation to that of the defendants in State v.
Shipp, 216 N.J. Super. 662 (App. Div. 1987) and State v. Lewis, 93 N.J. Super.
212 (App. Div. 1966), whose convictions were reversed because the State failed
to prove possessory offenses. In Shipp, we held the State failed to prove
defendant possessed controlled dangerous substances with intent to distribute
where he was a passenger in a car and his stepmother, another passenger, tried
to inconspicuously drop several sealed business envelopes containing heroin
through the grate of a storm drain while the police were questioning the others.
216 N.J. Super. at 663-64. We reasoned the defendant's simple presence in the
vehicle with his stepmother "did not suffice to authorize an inference that he
was sharing in the intentional control and dominion over the contraband
material." Id. at 666.
In Lewis, which was cited for support in Shipp, we reversed the
defendant's conviction for unlawful possession of a gun found in a jacket – not
owned by the defendant – in the front seat of a vehicle in which defendant was
one of seven occupants and sitting in the back seat. 93 N.J. at 213-14.
A-5872-17T4 23 Defendant asserts that like in Shipp and Lewis, the State's failure to
establish more than mere presence in the vehicle with a passenger who
controlled the fraudulent credit cards required an entry of acquittal. Defendant
attempts to minimize the one fraudulent credit card found in the glove box
alongside three non-fraudulent cards by stating "there was no evidence . . . [he]
kept anything in that glove box, which was located immediately in front of
Barnett."
We are unpersuaded by defendant's arguments. As the State points out,
our Supreme Court's reasoning in State v. Palacio, 111 N.J. 543 (1988),
undercuts defendant's reliance on Shipp. In Palacio, a driver and the defendant
passenger were stopped for speeding and, after obtaining written consent from
the driver to search the vehicle, a secreted compartment behind the back seat
revealed fifteen pounds of cocaine. 111 N.J. at 458. The defendant was found
guilty of possession with intent to distribute. Ibid. The Court rejected the
defendant's argument that Shipp required a reversal of his conviction because:
(1) the contraband was found in an open area where another occupant had
access; (2) there was evidence supporting a conspiracy; and (3) the quantity of
contraband was substantially larger than the few envelops of heroin and of
greater value than found in Shipp. Id. at 551-53.
A-5872-17T4 24 Giving the State the "benefit of all its favorable testimony as well as
favorable inferences which reasonably could be drawn therefrom[,]" Reyes, 50
N.J. at 459, the situation here is akin to Palacio, where the amount of contraband
and the accessibility of the contraband sustained the defendant's conviction. The
fraudulent credit cards were scattered across the car: in the center console, in
the glove box, on the seats, and in the McDonald's bag, without any indicia that
it was owned or possessed by any particular person in the car. The cards were
not on the persons of defendant's passengers, nor secreted in items the
passengers had complete and sole control over; they were all accessible to
defendant. Defendant's presence in a car he rented with so many fraudulent
credit cards scattered therein is enough for a reasonable jury to conclude an
agreement existed between the occupants to obtain and/or use the fraudulent
cards as required under N.J.S.A. 2C:5-2(a).
Furthermore, and perhaps more importantly, defendant was found guilty
of conspiracy to use fraudulent credit cards, not possession of fraudulent credit
cards. The fact there were so many such cards found in a vehicle he rented and
was driving establishes circumstantial evidence that a reasonable jury could
apply to find him guilty of conspiracy to use them. Hence, the judge properly
denied defendant's motion for a judgment of acquittal.
A-5872-17T4 25 Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
A-5872-17T4 26