NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2046-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHILLIP C. ATKINSON, a/k/a PHIL ATKINSON, and PHILIP ATKINSON,
Defendant-Appellant. ________________________
Submitted December 14, 2020 – Decided June 11, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 18- 02-0156.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a jury trial, defendant Phillip Atkinson was convicted of third-
degree theft by unlawful taking, pursuant to N.J.S.A. 2C:20-3(a). The trial court
sentenced defendant to a seven-year term of incarceration. Defendant raises two
issues on appeal, challenging a supplemental charge given by the trial court on
theft and contending that his sentence is excessive. For the reasons set forth, we
affirm.
I.
Christina Voncolln left her sister's apartment complex to go to Atlantic
City. She was carrying a gray and black wristlet (a wallet with a strap that hangs
from the wrist). The wristlet contained credit cards, bank cards, pictures of her
children, and one hundred and ninety dollars. As Ms. Voncolln walked down
the stairs from her sister's apartment, she heard a noise and saw defendant. She
asked defendant what he was doing, after which defendant ripped the wristlet
off her arm and ran down the stairs. Ms. Voncolln saw defendant's face when
he looked back while running. Defendant is the cousin of Ms. Voncolln's child's
father. She testified she saw defendant "a lot" prior to January 18, 2018, the day
of the incident.
A-2046-18 2 After defendant took the wristlet, Ms. Voncolln told her sister to call the
police. Minutes later, police officers arrived at the apartment complex and Ms.
Voncolln described the incident to them. She also gave the police a description
of the vehicle defendant used to flee from the scene. Later that day, Wildwood
police contacted Ms. Voncolln and asked her to ride with them to a stopped
vehicle where they performed a show-up identification. While there she
identified defendant as the person that took her wristlet. She told the officers
she was one hundred percent certain about her identification of defendant. The
police found Ms. Voncolln's wristlet on the floor of the seat where defendant
sat.
During the charge conference at trial, counsel and the court discussed
modifications to the proposed charge, after which counsel informed the court
that the charge was acceptable. Defendant did not object to the model
supplemental charge on theft, which was included in the final version of the
charge.
After summations, the court charged the jury. The supplemental theft
charge read as follows:
If you find Mr. Atkinson was in possession of the wristlet purse within a reasonably short period of time after the theft, you may infer that Mr. Atkinson is the thief. Although possession of stolen property within a
A-2046-18 3 short period of time from the theft is not in and of itself a crime, since it is possible under our law innocently to possess such goods, such possession within a reasonably short time after the theft may be found sufficient by you to infer that the possessor is the thief unless the evidence shows to your satisfaction that the property was acquired by Mr. Atkinson by legal means. Exclusive possession of stolen property shortly after the theft is ordinarily a circumstance from which you may reasonably draw the inference and find in light of the surrounding circumstances shown by the evidence in the case that the possessor is the thief.
[emphasis added.]
The jury acquitted the defendant of robbery, but found him guilty of third-
degree theft by unlawful taking. The State moved for an extended term at
sentencing. The trial court found defendant qualified for an extended term and
sentenced him to seven years imprisonment.
On appeal, defendant makes two arguments:
POINT I:
BECAUSE THE SUPPLEMENTAL CHARGE ON THEFT WAS CONTRARY TO THE PRESUMPTION OF INNOCENCE, REVERSAL AND REMAND FOR A NEW TRIAL IS NECESSARY (NOT RAISED BELOW)
POINT II:
MR. ATKINSON'S SENTENCE IS EXCESSIVE, UNDULY, PUNITIVE, AND MUST BE REDUCED
A-2046-18 4 II.
An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions. Correct instructions are "at the heart of the proper
execution of the jury function in a criminal trial." State v. Afanador, 151 N.J.
41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). The
instructions must be accurate and provide a "comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find." State v. Singleton, 211 N.J. 157, 181-82
(2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). In assessing the
propriety of a jury charge, an appellate court should examine the entire charge
to see whether it was ambiguous or whether it misinformed the jury of the law.
See State v. Figueroa, 190 N.J. 219, 246 (2007).
When a defendant fails to object to a jury charge at trial, "there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case." Singleton, 211 N.J. at 182. In cases like this, the standard of
review is plain error. State v. Nero, 195 N.J. 397, 407 (2008) (citing State v.
Chapland, 187 N.J. 275, 288-89 (2006)). "[P]lain error requires demonstration
of 'legal impropriety in the charge prejudicially affecting the substantial rights
of the defendant and sufficiently grievous to justify notice by the reviewing
A-2046-18 5 court and to convince the court that of itself the error possessed a clear capacity
to bring about an unjust result.'" Ibid. (quoting Chapland, 187 N.J. at 288-89).
The alleged error is viewed in totality of the entire charge and the error is
considered in light of the strength of the State's overall case. Ibid. (quoting
Chapland, 187 N.J. at 288-89).
Defendant argues that the disputed language in the supplemental theft
charge is inconsistent with the presumption of innocence. Defendant's theory is
that the phrase "unless the evidence shows to your satisfaction that the property
was acquired by Mr. Atkinson by legal means" created a presumption against
innocence, and that disputed phrase effectively implied defendant was a thief.
Defendant argues that because the supplemental jury charge as written is
inconsistent with the presumption of innocence, it led to an unjust result and
warrants a new trial. We disagree.
The charge the trial court gave the jury contained numerous references to
defendant's presumption of innocence as well as the State's burden of proof. The
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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-2046-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHILLIP C. ATKINSON, a/k/a PHIL ATKINSON, and PHILIP ATKINSON,
Defendant-Appellant. ________________________
Submitted December 14, 2020 – Decided June 11, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 18- 02-0156.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a jury trial, defendant Phillip Atkinson was convicted of third-
degree theft by unlawful taking, pursuant to N.J.S.A. 2C:20-3(a). The trial court
sentenced defendant to a seven-year term of incarceration. Defendant raises two
issues on appeal, challenging a supplemental charge given by the trial court on
theft and contending that his sentence is excessive. For the reasons set forth, we
affirm.
I.
Christina Voncolln left her sister's apartment complex to go to Atlantic
City. She was carrying a gray and black wristlet (a wallet with a strap that hangs
from the wrist). The wristlet contained credit cards, bank cards, pictures of her
children, and one hundred and ninety dollars. As Ms. Voncolln walked down
the stairs from her sister's apartment, she heard a noise and saw defendant. She
asked defendant what he was doing, after which defendant ripped the wristlet
off her arm and ran down the stairs. Ms. Voncolln saw defendant's face when
he looked back while running. Defendant is the cousin of Ms. Voncolln's child's
father. She testified she saw defendant "a lot" prior to January 18, 2018, the day
of the incident.
A-2046-18 2 After defendant took the wristlet, Ms. Voncolln told her sister to call the
police. Minutes later, police officers arrived at the apartment complex and Ms.
Voncolln described the incident to them. She also gave the police a description
of the vehicle defendant used to flee from the scene. Later that day, Wildwood
police contacted Ms. Voncolln and asked her to ride with them to a stopped
vehicle where they performed a show-up identification. While there she
identified defendant as the person that took her wristlet. She told the officers
she was one hundred percent certain about her identification of defendant. The
police found Ms. Voncolln's wristlet on the floor of the seat where defendant
sat.
During the charge conference at trial, counsel and the court discussed
modifications to the proposed charge, after which counsel informed the court
that the charge was acceptable. Defendant did not object to the model
supplemental charge on theft, which was included in the final version of the
charge.
After summations, the court charged the jury. The supplemental theft
charge read as follows:
If you find Mr. Atkinson was in possession of the wristlet purse within a reasonably short period of time after the theft, you may infer that Mr. Atkinson is the thief. Although possession of stolen property within a
A-2046-18 3 short period of time from the theft is not in and of itself a crime, since it is possible under our law innocently to possess such goods, such possession within a reasonably short time after the theft may be found sufficient by you to infer that the possessor is the thief unless the evidence shows to your satisfaction that the property was acquired by Mr. Atkinson by legal means. Exclusive possession of stolen property shortly after the theft is ordinarily a circumstance from which you may reasonably draw the inference and find in light of the surrounding circumstances shown by the evidence in the case that the possessor is the thief.
[emphasis added.]
The jury acquitted the defendant of robbery, but found him guilty of third-
degree theft by unlawful taking. The State moved for an extended term at
sentencing. The trial court found defendant qualified for an extended term and
sentenced him to seven years imprisonment.
On appeal, defendant makes two arguments:
POINT I:
BECAUSE THE SUPPLEMENTAL CHARGE ON THEFT WAS CONTRARY TO THE PRESUMPTION OF INNOCENCE, REVERSAL AND REMAND FOR A NEW TRIAL IS NECESSARY (NOT RAISED BELOW)
POINT II:
MR. ATKINSON'S SENTENCE IS EXCESSIVE, UNDULY, PUNITIVE, AND MUST BE REDUCED
A-2046-18 4 II.
An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions. Correct instructions are "at the heart of the proper
execution of the jury function in a criminal trial." State v. Afanador, 151 N.J.
41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). The
instructions must be accurate and provide a "comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find." State v. Singleton, 211 N.J. 157, 181-82
(2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). In assessing the
propriety of a jury charge, an appellate court should examine the entire charge
to see whether it was ambiguous or whether it misinformed the jury of the law.
See State v. Figueroa, 190 N.J. 219, 246 (2007).
When a defendant fails to object to a jury charge at trial, "there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case." Singleton, 211 N.J. at 182. In cases like this, the standard of
review is plain error. State v. Nero, 195 N.J. 397, 407 (2008) (citing State v.
Chapland, 187 N.J. 275, 288-89 (2006)). "[P]lain error requires demonstration
of 'legal impropriety in the charge prejudicially affecting the substantial rights
of the defendant and sufficiently grievous to justify notice by the reviewing
A-2046-18 5 court and to convince the court that of itself the error possessed a clear capacity
to bring about an unjust result.'" Ibid. (quoting Chapland, 187 N.J. at 288-89).
The alleged error is viewed in totality of the entire charge and the error is
considered in light of the strength of the State's overall case. Ibid. (quoting
Chapland, 187 N.J. at 288-89).
Defendant argues that the disputed language in the supplemental theft
charge is inconsistent with the presumption of innocence. Defendant's theory is
that the phrase "unless the evidence shows to your satisfaction that the property
was acquired by Mr. Atkinson by legal means" created a presumption against
innocence, and that disputed phrase effectively implied defendant was a thief.
Defendant argues that because the supplemental jury charge as written is
inconsistent with the presumption of innocence, it led to an unjust result and
warrants a new trial. We disagree.
The charge the trial court gave the jury contained numerous references to
defendant's presumption of innocence as well as the State's burden of proof. The
court thoroughly instructed the jury concerning the presumption of defendant's
innocence, as well as the State's obligation to prove each element of the charges
against defendant beyond a reasonable doubt. In addition to viewing the
disputed supplemental charge in the totality of the entire charge, we evaluate the
A-2046-18 6 strength of the State's case. Nero, 195 N.J. at 407. The record shows Ms.
Voncolln knew defendant from previous family contact. Ms. Voncolln saw
defendant's face immediately after he took her wristlet. Ms. Voncolln identified
defendant at a show-up identification shortly after the theft. Finally, the police
found Ms. Voncolln's wristlet in the vehicle they stopped and subsequently
searched. On this record, taking the jury instructions as a whole against the
backdrop of proofs presented, we find no error clearly capable of producing an
unjust result. Nero, 195 N.J. at 407 (citation omitted).
III.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). A sentencing court must first "determine whether the minimum
statutory eligibility requirements for an extended-term sentence are present."
State v. Pierce, 188 N.J. 155, 169 (2006); see also State v. Tillery, 238 N.J. 293,
323 (2019). "[O]nce the court finds that those statutory eligibility requirements
are met, the maximum sentence to which defendant may be subject . . . is the top
of the extended-term [sentencing] range." Pierce, 188 N.J. at 169; see also
Tillery, 238 N.J. at 324. "On appellate review, [we] apply an abuse of discretion
A-2046-18 7 standard to the sentencing court's explanation for its sentencing decision within
the entire [sentencing] range." Pierce, 188 N.J. at 169-70.
Appellate courts must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not "based upon competent credible evidence in the record;" or (3) "the application of the guidelines to the facts" of the case "shock[s] the judicial conscience."
[State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to impose an
extended sentence when the court finds that defendant is a persistent offender.
Pierce, 188 N.J. at 161. The prerequisites are:
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant’s last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
A-2046-18 8 Further, "[i]n the case of a crime of the third-degree," the court has discretion to
sentence individuals between three years and five years. N.J.S.A. 2C:43-6.
However, individuals convicted of a third-degree crime who are eligible for an
extended term may be sentenced up to ten years. See N.J.S.A. 2C:43-7(a)(4);
see also Pierce, 188 N.J. at 169.
Defendant argues that his sentence was excessive, unduly punitive, and
must be reduced. He further argues that his prior criminal history is not
proportionate to the sentence that he received.
The trial court followed the statutory guidelines. It cited defendant's
substantial criminal history, 1 incorporated its own trial observations, and
declared defendant a persistent offender who qualified for an extended term.
Defendant conceded his eligibility for persistent offender status during argument
at sentencing.
There is substantial evidence in the record to support the trial court's
findings of aggravating and mitigating factors set forth in its comprehensive oral
opinion at sentencing. Where a judge has followed the sentencing guidelines,
1 In 1998, defendant pled guilty to first-degree robbery. In 2006, defendant was convicted of third-degree possession of a controlled drug substance. In 2009, defendant was convicted of third-degree possession with intent to distribute CDS. In 2014, he was convicted of third-degree possession of CDS. A-2046-18 9 and her findings of aggravating and mitigating factors are supported by the
record, we will only reverse if the sentence "shocks the judicial conscience" in
light of the particular facts of the case. Roth, 95 N.J. at 364. "Defendant's
sentence[], albeit lengthy, [does] not cross that threshold." State v. Cassady,
198 N.J. 165, 184 (2009).
Affirmed.
A-2046-18 10