STATE OF NEW JERSEY VS. MARK N. BROWNLOW (14-01-0003, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2783-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK N. BROWNLOW, a/k/a
MARK NATHAN BROWNLOW,
Defendant-Appellant.
___________________________
Submitted March 29, 2017 – Decided August 9, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
14-01-0003.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Robin A. Hamett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Mark Nathan Brownlow was tried before a jury and
convicted of third degree theft, N.J.S.A. 2C:20-3a. The verdict
sheet that the jury used described the pieces of jewelry defendant
allegedly stole from the victim and included a separate
interrogatory requiring the jury to find whether the value of the
property taken was in excess of $500. See N.J.S.A. 2C:20-2b(2)(a).
The jury acquitted defendant of third degree burglary, N.J.S.A.
2C:18-2a(1), and third degree conspiracy to commit burglary,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2a(1).
The court sentenced defendant to a four-year term of
probation, conditioned upon a substance abuse evaluation and
treatment if warranted. The court also imposed the mandatory
fines and penalties. In this appeal, defendant argues the trial
court should have molded the jury's verdict to a disorderly persons
offense of theft because the evidence showed the value of the
personal property involved was less than $200. N.J.S.A. 2C:20-
2b(4)(a). Alternatively, defendant argues he is entitled to a new
trial because the court erred by failing to instruct the jury sua
sponte on the lesser included offense of fourth degree theft,
N.J.S.A. 2C:20-2b(3).
After reviewing the record developed before the trial court,
we reject defendant's arguments and affirm. In this appeal,
defendant challenges only the evidence establishing the value of
2 A-2783-14T2
the items he stole and whether the jury should have been given the
option of finding him guilty of a lesser crime based on the value
of those items. Stated differently, defendant does not deny he
stole these items; he only argues they were worth less than what
the State claimed they were worth. We will thus limit our
recitation of the salient facts accordingly.
On December 18, 2012, a woman we identify here using the
initials D.M., made a 9-1-1 call to the Gloucester Township Police
Department to report that her "home had been broken into." D.M.
is defendant's mother. D.M. testified she discovered the burglary
upon returning home from work. As she "cautiously" walked through
the house, she discovered that the back door had been "broken in"
and "the bedroom drawers were dumped over, and a mess." Gloucester
Township Police Officers David Sgrignuoli and Daniel Ritz
responded to the 9-1-1 call. They corroborated D.M.'s description
of her residence immediately after the burglary.
D.M. described the items that were taken as "some jewelry
pieces," "some banks with change in them," a drill she had given
her late husband, which he "never even got to use," and an
undisclosed number of "gift cards." After reviewing a police
report to refresh her recollection, D.M. described the jewelry
pieces stolen as "wedding rings, a butterfly bracelet, some gold
chains, [and] a couple of watches." The wedding rings included a
3 A-2783-14T2
"gold enhancer ring" that "went around . . . [her] diamond
engagement ring." D.M. submitted a claim for the theft of these
items under her homeowner's insurance policy. D.M. received a
check in the amount of $1,207.10 from the insurance company as
compensation for her loss.
D.M. testified her twenty-nine-year-old son was "allowed to
be in [her] home" and she made clear to the jury that she did not
believe defendant had anything to do with this incident. The
following exchange illustrates her belief:
Q. Okay. Now, we understand your house was
burglarized in December of 2012. Was your
house ever burglarized before that when your
son was living with you?
A. No.
Q. Has your son been to your home since this
happened?
A. Oh, yes.
Q. Has your home ever been burglarized since
then?
A. No.
Q. And you still welcome him in your home,
that's correct, right?
A. Yes.
Q. Okay. Do you want to be here today, [D.M.]?
A. Not at all. I'd rather be at work and
getting paid for my job.
4 A-2783-14T2
Q. As you sit here today, do you believe that
your son is guilty of this crime beyond a
reasonable doubt?
A. No, I don't think my son did this.
Q. And you told the Prosecutor's Office you
wanted these charges dropped, isn't that true?
A. Yeah, . . . they've really been harassing
me at work and everything. . . .
Defendant's ex-girlfriend Cheryl Hendricks and her brother
Mark Hendricks testified as witnesses for the State. Cheryl 1 was
charged as a codefendant in this case. She pleaded guilty to
conspiracy to commit third degree burglary and was sentenced to a
four-year term of probation conditioned upon serving 180 days in
the SLAP program.2 Cheryl denied she received anything from the
State in return for her testimony against defendant.
Mark learned of the burglary when he spoke with defendant in
the intake section of the Burlington County Jail, where they were
both detained at the time. Cheryl testified that at the time of
the burglary on December 18, 2012, defendant was living with her
"[b]ecause his mother kicked him out" of her house in September
1
We will refer to Cheryl Hendricks and her brother Mark Hendricks
by their first names in the interest of clarity. No disrespect
is intended or implied.
2
The acronym "SLAP" refers to the Sheriff's Labor Assistance
Program, N.J.S.A. 2B:19-5. When asked to explain what this meant,
Cheryl responded: "[The] SLAP program is basically community
service."
5 A-2783-14T2
or October of that year. Defendant drove Cheryl to D.M.'s house
and she waited in the car while defendant went inside to steal his
mother's jewelry. Defendant used his key to enter the house. He
broke the back door to divert suspicion from himself.
According to Cheryl, as soon as defendant came out with the
jewelry, they "went and drove to the pawn shop." Defendant wanted
to convert the jewelry to cash because "[h]e needed the money."
The pawnshop made a photocopy of Cheryl's driver's license and
photographed the jewelry. Cheryl received $300 for the items,
which she immediately turned over to defendant. The receipt from
the pawnshop is dated December 18, 2012. Cheryl also testified
that defendant took "clothing and his shoes and a car starter."
Against this record, defendant now raises the following
arguments.
POINT I
BECAUSE THE STATE FAILED TO PROVE AN ELEMENT
OF THIRD-DEGREE THEFT, THAT THE STOLEN
PROPERTY WAS VALUED AT OVER $500[], THE COURT
SHOULD MOLD THE VERDICT TO ONE FOR A
DISORDERLY-PERSONS THEFT.
POINT II
THE COURT ERRED IN FAILING TO SUBMIT AN
INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF
FOURTH-DEGREE THEFT BECAUSE THE VALUE OF THE
STOLEN OBJECTS WAS UNCLEAR. (Partially Raised
Below).
6 A-2783-14T2
The principal issue here is a discrete one. The lesser
included offense is based on the valuation of the stolen items.
D.M. testified she received $1,207.10 from her home insurance
carrier as compensation for her losses. Joseph Palandro, the
carrier's representative who handled D.M.'s claim, testified she
was paid for "her damages and her stolen items." He did not
delineate what amount paid for the loss of her personal property
and what amount paid for the damage to her real property.
Cheryl testified she received $300 from the pawnshop. This
was corroborated by the pawnshop's receipt, which described the
items, and a photograph of the items themselves. D.M. described
the jewelry as consisting of a diamond engagement ring enhanced
by a gold ring, a butterfly bracelet, some gold chains, a couple
of watches, and an unused drill. The jury was specifically asked
to determine if these items, taken together, had a value of more
than $500. During the Rule 1:8-7(b) charge conference, the judge
distributed to counsel "a clean version of the final instructions"
and asked them if they had "any additions, corrections, or
deletions[.]" The attorneys did not suggest any changes.
During closing arguments to the jury, defense counsel
addressed the jury directly on the value of the stolen items.
Then we look at the values of the property,
and the State wants you to submit that . . .
the value is in excess of $500. Well, we
7 A-2783-14T2
heard from the victim, and she testified that
she couldn't really remember the amounts and
the values of the property and that she wasn't
really sure what everything was worth, and
someone from the insurance company came in and
they testified and they said that they
eventually sent her out a check for $1,200,
but we didn't see any receipts. We didn't see
any copies of . . . documentation of how much
it was worth. We didn't see any valuations.
What the State has to prove to you is the
actual value of the property that has been
stolen, and I submit to you, ladies and
gentlemen, that they haven't proved what the
actual value is.
We're in the same position we were when we
first started. I told you the State would not
be able to prove its case beyond a reasonable
doubt, that they would only be able to bring
two individuals who lacked any form of
credibility, and ladies and gentlemen, I
submit to you that how we started is how we're
now finishing.
The law in this area is settled. N.J.S.A. 2C:1-8e cautions
trial courts not to charge the jury "with respect to an included
offense unless there is a rational basis for a verdict convicting
the defendant of the included offense." However, a trial judge
has an independent, non-delegable duty "'to instruct on lesser-
included charges when the facts adduced at trial clearly indicate
that a jury could convict on the lesser while acquitting on the
greater offense.'" State v. Funderburg, 225 N.J. 66, 76 (2016)
(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). Thus, even
if neither the State nor defendant requests the trial judge to
8 A-2783-14T2
instruct the jury on a lesser included offense, the court must sua
sponte provide such an instruction when appropriate. State v.
Maloney, 216 N.J. 91, 107 (2013) (quoting State v. Thomas, 187
N.J. 119, 132 (2006)).
Because defendant did not request that the court instruct the
jury on the lesser included offense based on the value of the
items, we review the trial judge's decision for plain error. R.
2:10-2. As applied to jury instructions, plain error requires us
to determine whether the charge's impropriety "prejudicially
affect[ed]" defendant's "substantial rights" and was "sufficiently
grievous" to convince us that the error had a "clear capacity to
bring about an unjust result." State v. Chapland, 187 N.J. 275,
289 (2006) (citation omitted).
Here, we are satisfied defendant made a strategic decision
to leave the jury with no option other than convict or acquit on
the question as framed by the court in the verdict sheet. If the
jury had been given the option of considering the lesser included
offense of fourth degree theft under N.J.S.A. 2C:20-2b(3), in
which the amount involved is at least $200 but does not exceed
$500, the pawnshop receipt showing defendant received $300 for the
items he pawned would have been viewed as nearly indisputable
evidence of valuation. However, by leaving the jury with only one
task -- to determine whether the State presented sufficient
9 A-2783-14T2
evidence to prove, beyond a reasonable doubt, that the value of
the stolen items exceeded $500 -- defense counsel was able to make
the far stronger argument reflected in his closing argument.
Although this strategy was legally plausible, it was not
without risks. As the Court explained in State v. Williams, 219
N.J. 89, 100 (2014), "when a defendant later claims that a trial
court was mistaken for allowing him to pursue a chosen strategy
-- a strategy not unreasonable on its face but one that did not
result in a favorable outcome -- his claim may be barred by the
invited-error doctrine." We are satisfied defendant made a
strategic decision to leave the jury with only one option, hoping
that the odds favored acquittal based on the question of valuation
as framed by the court in the verdict sheet. Defendant must now
live with the consequences of this decision.
Affirmed.
10 A-2783-14T2