State v. Kelvin Williams (071306)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Kelvin Williams (A-8-12) (071306)
[Note: This is a companion case to State v. Christopher Dekowski, also filed today.]
Argued October 8, 2013 -- Decided August 11, 2014
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court determines whether a defendant’s demand of money from a bank employee while
telling her he was armed with a bomb, in the absence of any gesture suggesting the truth of his menacing remark,
constituted sufficient evidence of an immediate threat to use a deadly weapon in order to sustain a conviction for
first-degree robbery.
On the morning of October 8, 2008, defendant Kelvin Williams, wearing bright orange pants, an oversized
white t-shirt, and a camouflage hooded sweatshirt with the hood pulled over his head, entered the Sun National Bank
in Somerdale, New Jersey. Defendant leaned on the teller counter and told head bank teller Cheryl Duncan “that he
had a bomb and to give him seven million dollars.” Duncan did not see a bomb but testified that defendant was
wearing a big hooded sweatshirt and his body and hands were not visible. Although Duncan initially did not believe
that defendant had a bomb, she ultimately reconsidered, thinking he might be “crazy enough” to blow himself up.
Refusing to take any chances, she handed defendant $552 from her teller’s drawer. Defendant left the bank and got
in a cab, and Duncan called 9-1-1. Defendant was arrested at a nearby mall, and Duncan identified him as the
robber. No evidence was recovered suggesting defendant was armed with a bomb.
At trial, defendant moved for a judgment of acquittal on the first-degree robbery charge, arguing that,
where a robber is not actually armed with a weapon, the State must show a threat and demand for money, as well as
an accompanying gesture giving the impression of a weapon. Defendant submitted that only uttering the words, “I
have a bomb” and “Give me the money” was insufficient to support a finding of guilt on the first-degree robbery
charge. The court denied defendant’s motion, finding that the totality of the circumstances, including defendant’s
words, behavior, and dress, were sufficient to allow the jury to find defendant guilty of armed robbery beyond a
reasonable doubt. The jury convicted defendant of first-degree robbery, and the court sentenced him to a fourteen-
year prison term subject to an eight-five percent parole ineligibility period and a five-year period of parole
supervision.
Defendant appealed, and the Appellate Division held that, even giving the State the benefit of all favorable
inferences, there was insufficient evidence for the jury to find that Duncan had a reasonable belief that defendant
was armed with a bomb during the robbery. The panel determined that case law involving simulation of a “deadly
weapon” requires either an object that clearly simulates a weapon or a combination of words and gestures giving the
impression that the defendant is armed. The panel emphasized that defendant made no gesture indicating possession
of a bomb or his intent to detonate one. Referring to defendant’s dress, the panel concluded that, absent a statement
that the bomb was concealed on his body, defendant’s clothing was of little relevance. The panel determined that
Duncan’s belief that defendant had a bomb was unreasonable under the circumstances, bearing no reference to his
conduct, clothing or demeanor. Accordingly, the panel reversed defendant’s conviction, declining to address an
evidentiary issue raised on appeal. The Court granted the State’s petition for certification. 212 N.J. 199 (2012).
HELD: To find a defendant guilty of first-degree robbery in a simulated deadly-weapon case, the victim must have
an actual and reasonable belief that the defendant threatened the immediate use of such a weapon, which factfinders
must ascertain through application of a totality-of-the-circumstances standard, which includes consideration of the
nature of any verbal threat, the defendant’s conduct, his dress, and any other relevant factors. Applying that
standard here, defendant’s words, conduct, and clothing provided sufficient evidence for a reasonable jury to convict
defendant of first-degree robbery.
1
1. Appellate courts review statutory interpretations de novo, owing no deference to the lower court’s interpretation.
The primary goal of statutory interpretation is to identify the Legislature’s intent. In order to do so, courts first look
to the plain language of the statute, only resorting to extrinsic aids, such as legislative history, if the plain language
yields more than one possible interpretation. Ambiguities are resolved in favor of the defendant. (pp. 11-13)
2. Under N.J.S.A. 2C:15-1(b), second-degree robbery is elevated to a first-degree crime if the defendant “is armed
with, or uses or threatens the immediate use of a deadly weapon.” The definition of “deadly weapon” includes any
“material or substance” that “in the manner [in which] it is fashioned would lead the victim to reasonably believe it
to be capable of producing death or serious bodily injury.” N.J.S.A. 2C:11-1(c). This definition allows for a first-
degree robbery conviction even where the defendant only has a simulated weapon, although such a conviction will
not be sustained unless, under the circumstances, the victim possessed a reasonable and subjective belief that the
device was capable of producing death or serious bodily injury. (pp. 13-15)
3. Since a robber pretending to possess a deadly weapon intends for the victim to believe that it is real, a robber
pretending to conceal a bomb on his body will fashion his appearance to bolster this impression. In order to
determine whether a robber has fashioned an object or substance for the purpose of giving the impression he is
armed with a deadly weapon, courts look to the totality of the circumstances. In simulated-weapon robbery cases,
the Court has held that first-degree robbery convictions may be based on the use of a body part or gestures, coupled
with threatening words, simulating possession of a weapon. Where an object is fashioned to appear as a concealed
gun or knife, it is understandable that a robber would make a gesture to indicate that he is armed to underscore the
credibility of his threat. However, such a gesture may not be necessary to reasonably persuade a victim that a
robbery’s body is outfitted as a bomb or that a bomb is secreted in the robber’s apparel. Since bombs are known to
have the capacity to cause mass carnage and destruction, a victim threatened with detonation of a bomb is unlikely
to ask for proof of its existence. Accordingly, a robber who claims he is armed with a bomb and is outfitted in loose
clothing that may conceal an explosive device should expect he will be taken at his word. (pp. 15-21)
4. While a threat or reference to a deadly weapon alone is insufficient to satisfy N.J.S.A. 2C:11-1(c), the words that
convey the threat, the robber’s overall conduct, his dress, and any other relevant factors may combine to create an
actual and reasonable belief that the robber was armed with a deadly weapon. Consequently, the clothing that a
defendant is wearing at the time of a robbery, as well as the placement or concealment of his hands, is highly
relevant in assessing the credibility of the threat. In the context of simulated weapons, the victim must have an
actual and reasonable belief that the robber may be armed with a deadly weapon. (pp. 21-23)
5. Here, the Court reviews the sufficiency of the evidence on defendant’s acquittal motion de novo, determining
whether, based on the entirety of the evidence and after giving the State the benefit of all favorable inferences, a
reasonable jury could find defendant guilty beyond a reasonable doubt. Defendant threatened that he had a bomb,
was wearing loose clothing, including a hooded sweatshirt with the hood pulled over his head, and his hands, feet
and torso were not visible. Although the teller could not have known for certain whether defendant was armed with
a bomb, the threat was unequivocal. No useless gesture was required to give defendant’s threat of a deadly weapon
further credence. There have been well-publicized recent instances of individuals concealing bombs under their
clothes, in shoes, and in headgear, including one bank robbery case where the robber attached a bomb to his neck
and torso. Thus, giving all favorable inferences to the State, the teller would not have parted with the bank’s money
had she not believed the threat was real. In light of the totality of the circumstances, including defendant’s words,
conduct, and clothing, as well as contemporary knowledge that bombs have been concealed on persons, a rational
jury could have found that defendant “fashioned” himself in a way that led the teller to reasonably believe that he
possessed a bomb that was capable of producing serious bodily injury or death. Accordingly, the Court reverses the
Appellate Division’s judgment of acquittal and reinstates defendant’s conviction of first-degree robbery, remanding
the case to the Appellate Division for consideration of the evidentiary issue that was not previously decided. (pp.
23-26)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for further proceedings in accordance with the Court’s opinion.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-8 September Term 2012
071306
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KELVIN WILLIAMS,
Defendant-Respondent.
Argued October 8, 2013 – Decided August 11, 2014
On certification to the Superior Court,
Appellate Division.
Jason Magid, Assistant Prosecutor, argued
the cause for appellant (Warren W. Faulk,
Camden County Prosecutor, attorney).
Michael B. Jones, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Kenneth A. Burden, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
A jury convicted defendant, Kelvin Williams, of first-
degree robbery based on evidence that he entered a bank, told a
teller he possessed a bomb, and demanded money. Defendant made
no gesture as he issued his threat, and a bomb was not
displayed. Defendant was dressed in a hooded sweatshirt and
1
pants, and his hands were not visible. It is undisputed that
defendant was not armed with a bomb.
Second-degree robbery is elevated to a first-degree crime
when the robber threatens the immediate use of a deadly weapon.
N.J.S.A. 2C:15-1(b). This element of robbery does not require
that the robber actually be armed with a deadly weapon, but only
that he possess any “material or substance . . . which in the
manner it is fashioned would lead the victim reasonably to
believe it to be capable of producing death or serious bodily
injury.” N.J.S.A. 2C:11-1(c).
The issue in this appeal is whether defendant’s demand of
money from the bank employee while telling her he was armed with
a bomb, in the absence of any gesture suggesting the truth of
his menacing remark, constituted sufficient evidence of an
immediate threat to use a deadly weapon. The Appellate Division
concluded that the failure of defendant to make some gesture
suggesting he was armed with a bomb did not allow a finding that
defendant threatened the immediate use of a deadly weapon. The
appellate panel therefore overturned the jury verdict.
We disagree with the Appellate Division. Well-documented
events since 2001 have made the public painfully aware that
bombs can be secreted in cunning ways -- under a person’s
garments, in a shoe, or in luggage -- and can be exploded by
various means, including by timers and remote devices. A
2
defendant who makes a credible threat that he is armed with a
bomb may be taken at his word for purposes of first-degree
robbery. So long as the victim had an actual and reasonable
belief that a defendant was armed with a bomb based on the
totality of the circumstances, including the defendant’s words,
conduct, and dress, a gesture is not a prerequisite for a
finding that defendant threatened the immediate use of a deadly
weapon.
We therefore reverse and reinstate defendant’s conviction
of first-degree robbery, and remand to the Appellate Division
for consideration of the remaining issue not addressed in
defendant’s appeal.
I.
A.
Defendant, Kelvin Williams, was tried by a jury and
convicted of first-degree armed robbery, N.J.S.A. 2C:15-1. The
evidence presented at trial and relevant to this appeal follows.
On the morning of October 8, 2008, defendant walked into
the Sun National Bank in the Borough of Somerdale in Camden
County. According to the testimony of head bank teller Cheryl
Duncan, defendant stood six-feet tall and was wearing bright
orange pants and an oversized white t-shirt underneath a
3
camouflage hooded sweatshirt. As he approached her teller
window, defendant’s hood was “pulled over his head.”
Once there, defendant leaned his body on the teller counter
and told Duncan “that he had a bomb and to give him seven
million dollars.” When Duncan was asked by the prosecutor
whether she saw a bomb, she responded, “No. But, he had a big
hooded sweatshirt on.” Duncan could see defendant’s face
underneath the hood but his body and hands were not in view.
Duncan was frightened and backed up behind her protective glass
window. Duncan knew that the bank’s customer service
representative, Aline Keshishian, who was eight months pregnant
and seated at a desk in the lobby, was just a few feet from
defendant. Duncan thought that defendant could grab Keshishian
and order Duncan to admit him into the teller station.
According to Keshishian, defendant’s hands were in the pockets
of his baggy sweatshirt as he walked toward the teller window,
an observation corroborated by a surveillance video introduced
into evidence.
At first, Duncan did not believe that defendant had a bomb,
thinking, “it’s silly for someone to blow themselves up for
money.” But she also supposed that defendant might be “crazy
enough to do something like that” and thus considered “there
[was] a very good possibility that [he had] a bomb.” Duncan did
not see a bomb, but she “didn’t know he didn’t have a bomb.”
4
And although Duncan also stated that she “didn’t believe that he
had a bomb,” she did not take any chances, handing defendant
$552 from her teller’s drawer. She did not use the bank’s dye
pack with marked bills because she was “scared.”
After defendant took the money, he left the bank and got in
a cab. Duncan sounded the bank’s silent alarm and called 9-1-1,
relaying information about the robbery. She told the 9-1-1
operator, “I didn’t believe him, but I gave him the money.”
Within minutes of the 9-1-1 call, officers of the Somerdale
Police Department responded to the bank. Patrolman Kevin Smith
testified that, on his arrival, he spoke with Duncan. She
reported that a man -- later identified as defendant -- entered
the bank and approached her teller window, threatening, “I have
a bomb strapped to me” or “I have a bomb strapped to my chest,”
and demanding “nine million dollars.”
A description of the robber, his clothes, and the getaway
vehicle was broadcast. Defendant was tracked to a nearby mall,
where he was arrested. At the time of his arrest, defendant was
“carrying in his hand a camouflaged hooded sweatshirt” and
“wearing jeans, a white and blue striped collared shirt, [and] a
baseball hat.” The police took from defendant a receipt
indicating that he had purchased for $60.98 in cash jeans and a
striped shirt from the mall’s Pay Half store and $481 in various
denominations. The aggregate of the mall purchase and cash
5
found on defendant closely matched the amount stolen from the
bank. In addition, from a trash can inside the Pay Half store,
the police recovered bright orange pants and a white t-shirt.
The police transported defendant to the bank where Duncan
identified him as the robber. No evidence, however, was
gathered suggesting that defendant was actually armed with a
bomb.
B.
After both the State and defense rested, defendant moved
for a judgment of acquittal on the first-degree portion of the
robbery charge. Defendant argued that in a case in which a
robber is not actually armed with a weapon, the State must show,
in addition to a “threat and demand for money,” that there was
“an accompanying gesture” that gave the impression that he
possessed a weapon. Defendant submitted that the evidence was
insufficient for a finding of guilt on the first-degree charge
because he only uttered words, “I have a bomb” and “Give me the
money.”
The trial court denied defendant’s acquittal motion. In
doing so, the trial court looked at the totality of the
circumstances, including defendant’s words, behavior, and the
manner of his dress. The court concluded that “in these days of
bombs strapped tightly to chests, bombs as part of a person’s
6
clothing . . . a jury could find that [defendant] is guilty of
armed robbery beyond a reasonable doubt.”
C.
The jury rejected defendant’s defense of misidentification
and found defendant guilty of first-degree robbery. Defendant
was sentenced to a fourteen-year prison term subject to an
eighty-five percent period of parole ineligibility pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also
imposed a five-year period of parole supervision and the
requisite fines and penalties.
Defendant appealed.
II.
In an unpublished decision, the Appellate Division held
that, even giving the State the benefit of all favorable
inferences, there was insufficient evidence for a jury finding
that the bank teller had “a reasonable belief that defendant was
armed with a bomb during the commission of the robbery.”
Accordingly, the appellate panel reversed defendant’s conviction
for first-degree robbery.
The panel framed two questions, one general, “what conduct
is required to accompany words when the defendant explicitly
references a bomb,” and one specific, “whether defendant’s
clothing and comportment and the nature of his threat provided a
7
sufficient basis upon which to convict him of armed robbery by
simulation.” The panel construed the decisional law involving
simulation of a “deadly weapon” under N.J.S.A. 2C:11-1(c) as
requiring “either an object that clearly simulates a weapon or a
combination of words and gestures” that give the impression that
a perpetrator is armed with a weapon. The panel refused to
distinguish robberies involving a simulated bomb from those
involving other simulated weapons, reasoning that “to hold that
a bomb threat unaccompanied by a gesture is sufficient to
establish robbery by simulation would be to eviscerate the case
law requiring that a threat to use a deadly weapon be
accompanied by conduct indicative of the existence of the
weapon.”
In the present case, the panel emphasized that defendant
made no gesture indicating that he had a bomb or was ready to
detonate one. In the panel’s view, even the manner of
defendant’s dress provided no clue whether defendant was armed
with a bomb: “if he did not say that the bomb was on his body,
the fact that defendant was wearing a hooded sweatshirt has
little relevance.” Although the panel accepted “as credible
Duncan’s testimony that she came to believe that defendant had a
bomb,” it nevertheless concluded that her belief was
unreasonable because it “bore no reference to the conduct,
clothing or demeanor of defendant.”
8
Because the panel reversed defendant’s conviction, it
declined to address an evidentiary issue raised on appeal.1
We granted the State’s petition for certification. State
v. Williams, 212 N.J. 199 (2012). We also granted the Attorney
General’s motion for leave to appear as amicus curiae.
III.
A.
The State argues that the Appellate Division misapplied the
standard governing a motion for a judgment of acquittal by
“conjuring” negative inferences to support its conclusion that a
reasonable person would not have believed that defendant was
armed with a bomb. The State also contends that the Appellate
Division went astray by treating simulated robbery cases
involving guns like those involving bombs. It maintains that
the panel failed to acknowledge that gestures typically
suggesting possession of a gun are meaningless in simulated bomb
cases because explosive devices can be “hidden in the sole of a
shoe or secreted in an undergarment.” The State submits that
“the nature of the action and/or gesture necessary to elevate a
robbery to a first-degree crime must be defined by the type of
1
Defendant argued before the Appellate Division that the trial
court erred by allowing the “admission into evidence of bright
orange pants that bore the initials of the Camden County
Correctional Facility (CCCF).”
9
deadly weapon threatened” and that here defendant’s physical and
verbal actions “created the reasonable impression that he
possessed a bomb.”2
B.
The Attorney General, as amicus curiae, submits that this
Court’s interpretation of the robbery statute requires a
totality-of-the-circumstances approach, including a
consideration of the distinct characteristics of the weapon at
issue, in determining whether sufficient evidence was presented
for the jury to find that the teller reasonably believed
defendant was armed with a bomb. The Attorney General insists
that “defendant’s unambiguous verbal threat rendered a specific
gesture superfluous,” “that no standard gesture adequately
conveys the presence of a concealed bomb,” and that defendant
did not have to pat his chest to confirm a bomb was strapped to
his body. The Attorney General maintains that defendant’s
“unambiguous threat of a bomb,” his manner of dress, and the
inability of the teller to see his body when he made his demands
allowed the jury to conclude that defendant “create[d] a
reasonable impression that he was armed with a bomb.”
C.
2
The State also claims that the Appellate Division, even if
correct, should have remanded for the entry of a judgment of
conviction for second-degree robbery because any error in
submitting the deadly weapon issue to the jury only effected the
elevation of second-degree robbery to a first-degree crime.
10
Defendant urges this Court not to “expand the law of armed
robbery by simulation by dispensing with anything more than a
verbal threat to make out the crime.” Defendant submits that
this Court has never wavered from the principle that some
gesture must accompany the threat to use a deadly weapon for a
conviction of first-degree robbery in a simulated-weapon case,
citing State v. Chapland, 187 N.J. 275, 292 (2006), and State v.
Hutson, 107 N.J. 222, 226-28 (1987). Defendant contends that he
did not fashion an object “to create an ominous impression” and
that his wearing “a large sweatshirt may have created the
possibility that he had a bomb” but not a reasonable impression
that he, in fact, possessed a bomb. Last, defendant asks that
this Court not push “the boundaries of the [robbery] statute”
beyond the clear intent of the Legislature and apply “the
‘fundamental canon of statutory interpretation -- that courts
are bound to strictly construe penal statutes,’” quoting State
v. Froland, 193 N.J. 186, 201 (2007).
IV.
A.
The appeal before us presents two issues. The first
requires us to construe the “deadly weapon” provision of the
robbery statute, N.J.S.A. 2C:15-1(b), where the “deadly weapon”
is a simulated bomb. The question is whether, to convict a
11
defendant of threatening the immediate use of a bomb during a
robbery, where a bomb is not displayed, the defendant must make
some physical gesture in addition to a verbal threat, as the
Appellate Division contends. The second issue is whether the
State presented sufficient evidence for the jury to conclude
that the bank teller reasonably believed that defendant
possessed a bomb.
B.
Before construing the deadly weapon provision of the
robbery statute, we begin with some simple canons to guide us.
When interpreting a statute, we engage in a de novo review.
Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab. Ins. Guar. Ass’n,
215 N.J. 522, 535 (2013). We owe no deference to the trial
court’s interpretation or the Appellate Division’s
interpretation of a statute. Ibid. In this case, those
interpretations of N.J.S.A. 2C:15-1(b) and N.J.S.A. 2C:11-1(c)
are distinctly different.
Our primary goal in interpreting any statute is to identify
the Legislature’s intent. State v. Gelman, 195 N.J. 475, 482
(2008) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
We do this by first looking at “the actual words of the statute,
giving them their ordinary and commonsense meaning.” Ibid. If
the plain language yields the meaning of the statute, then our
task is complete. Ibid. In addition, we will not interpret a
12
statute in a way that “leads to an absurd result.” DiProspero,
supra, 183 N.J. at 493 (citing Hubbard ex rel. Hubbard v. Reed,
168 N.J. 387, 392-93 (2001)).
We will only resort to extrinsic aids, such as legislative
history, if the plain language of the statute yields “more than
one plausible interpretation.” Id. at 492. Any ambiguities
that remain after resorting to extrinsic aids must be resolved
in favor of the defendant, given our strict construction of
penal statutes. Gelman, supra, 195 N.J. at 482.
We now turn to the relevant provisions of the New Jersey
Code of Criminal Justice.
V.
A.
A defendant commits second-degree robbery “if, in the
course of committing a theft, he . . . [t]hreatens another with
or purposely puts him in fear of immediate bodily injury.”
N.J.S.A. 2C:15-1(a)(2). Second-degree robbery is elevated to a
first-degree crime “if in the course of committing the theft the
[defendant] . . . is armed with, or uses or threatens the
immediate use of a deadly weapon.” N.J.S.A. 2C:15-1(b). The
crux of this case is the definition of deadly weapon.
“Deadly weapon” is broadly defined in N.J.S.A. 2C:11-1(c)
as
13
any firearm or other weapon, device,
instrument, material or substance, whether
animate or inanimate, which in the manner it
is used or is intended to be used, is known
to be capable of producing death or serious
bodily injury or which in the manner it is
fashioned would lead the victim reasonably
to believe it to be capable of producing
death or serious bodily injury.
[(Emphasis added).]3
To “fashion” means to “to give a particular shape or form to;
make.” Webster’s Unabridged Dictionary of the English Language
700 (2001). The meaning of “fashioned” is reasonably broad and
is not limited to purposeful bodily movements.
The definition of “deadly weapon” in N.J.S.A. 2C:11-1(c)
permits a defendant to be convicted of first-degree robbery even
if he had no real weapon -- just a simulated one -- during the
commission of the crime. However, a first-degree robbery
conviction will not be sustained unless the victim possessed “a
subjective belief that the device or instrument [or material or
substance was] ‘capable of producing death or serious bodily
injury,’ and . . . that that subjective belief [was] a
3
In State v. Butler, 89 N.J. 220, 228 (1982), we interpreted
“threatens the immediate use of a deadly weapon” in the robbery
statute, N.J.S.A. 2C:15-1(b), to require that that the defendant
possess an actual deadly weapon to be convicted of first-degree
robbery. At the time we were deciding Butler, the Legislature
amended the definition of “deadly weapon” in N.J.S.A. 2C:11-1(c)
to cover simulated-weapon cases. Butler, supra, 89 N.J. at 229
n.3 (citing L. 1981, c. 384 (eff. Jan. 4, 1982)).
14
reasonable one under the circumstances.” Hutson, supra, 107
N.J. at 227-28 (interpreting N.J.S.A. 2C:11-1(c)).
Thus, a deadly weapon includes not only a real weapon, such
as a gun, but also a simulated weapon -- an object fashioned to
look like a gun, such as a finger in a pocket. Id. at 227-28.
However, the “device, instrument, material or substance” that is
fashioned to look like a weapon must be capable of leading a
reasonable person to believe it is in fact a weapon. N.J.S.A.
2C:11-1(c). Needless to say, a simulated deadly weapon will
have the ability to induce the same degree of terror in a victim
as an actual weapon. In amending the statutory definition of
deadly weapon to include a feigned weapon, the Legislature
decided that no distinction should be made between real deadly
weapons and simulated ones in elevating the range of punishment
for a robbery.
B.
The language covering simulated weapons in N.J.S.A. 2C:11-
1(c) is broad enough to encompass the multitude of ways in which
a “device, instrument, material or substance” can be fashioned
by a creative robber into something that generates a reasonable
belief that it is or conceals a lethal weapon. After all, the
robber who pretends to possess a deadly weapon intends that the
victim believe that he has a real one, so he is unlikely to
reveal that the supposed gun in his pocket is just a finger.
15
Likewise, a robber pretending to conceal a bomb on his body will
fashion his appearance to bolster the impression that he is
armed with such a weapon. “[I]t is the reasonable impression
created by that which is presented to the victim that is
controlling.” Hutson, supra, 107 N.J. at 229. Thus, “the
victim need not actually see the object, so long as . . . [it]
is fashioned to create in the victim the reasonable sensory
impression that the object is capable of causing serious bodily
harm or death.” Id. at 230.
In determining whether a robber has fashioned a “device,
instrument, material or substance” for the purpose of giving the
impression he is armed with a deadly weapon, see N.J.S.A. 2C:11-
1(c), courts typically have looked to the totality of the
circumstances. Each case depends on the factual context in
which the threat is made.
In State v. LaFrance, the defendant, during the course of a
home-invasion robbery and sexual assault, told his victims that
he had a gun, positioned his hand inside his coat “to make it
appear that he had a gun,” and repeatedly threatened “to blow
[the victims’] brains out.” 224 N.J. Super. 364, 367-68 (App.
Div. 1988), rev’d on other grounds, aff’d o.b. on this issue,
117 N.J. 583, 595 (1990). In fact, the defendant was not armed
with a gun. Id. at 369. Although the defendant was not armed,
the Appellate Division concluded that the evidence was
16
sufficient for the victims to reasonably “believe that [the]
defendant possessed a gun” by his “use of his hand to simulate”
one. Id. at 372. The Appellate Division affirmed the
defendant’s conviction of first-degree robbery. Ibid.
In State v. Huff, the defendant entered a 7-Eleven store
wearing a dark stadium jacket; told the cashier, “I have a gun
here,” as he patted his waist; and demanded the money in the
cash drawer. 292 N.J. Super. 185, 188 (App. Div. 1996), aff’d
o.b., 148 N.J. 78 (1997). In affirming the defendant’s
conviction for first-degree robbery, the Appellate Division held
that the evidence was sufficient for the victim to reasonably
believe that the defendant was armed with a concealed gun, even
though the defendant had no gun. Id. at 191.
We have twice addressed the sufficiency of evidence
necessary in a simulated-weapon robbery case. In Chapland,
supra, the evidence showed that the defendant attempted to rob
the victim a short distance from her home. 187 N.J. at 278.
The defendant came from behind the victim and grabbed her
pocketbook from her shoulder, and a struggle ensued. Id. at
278, 291. When the victim did not let go of the purse, the
defendant “pretended to reach for something behind his back,
simultaneously threatening ‘Give me your pocketbook, bitch.’”
Id. at 291. The defendant “admitted that the impression that he
wanted to convey, from the timing and content of his gesture and
17
words, was to have his victim think that he had a weapon.” Id.
at 291-92. Given the defendant’s overall conduct, we concluded
that “it was permissible for a jury to find that a victim could
form the reasonable impression that a weapon was concealed
behind defendant” and affirmed the defendant’s conviction for
first-degree robbery. Id. at 292-93. We held that “[a]n
unequivocal or unambiguous simulation of a weapon possessed, as
well as an ambiguous or equivocal gesture coupled with
threatening words that complete the impression of a concealed
weapon, can provide a sufficient factual basis for conviction of
first-degree robbery.” Id. at 292.
In Hutson, supra, we found the evidence insufficient to
support a conviction of first-degree robbery based on the threat
of a simulated deadly weapon. 107 N.J. at 230. In that case,
the defendant and his friend were passengers in a taxicab. Id.
at 223. The taxicab driver testified that one of the two
passengers demanded money and that one of them stated he had a
gun, although the driver identified the friend as describing the
gun as “a Magnum.” Id. at 224. When the driver looked back, he
saw one of the men holding a “little newspaper.” Ibid.
Based on a thorough reading of the transcript, we concluded that
the evidence did “not generate an inference that [the] defendant
had created the reasonable impression that he was concealing a
weapon under a newspaper.” Id. at 229. We did not suggest that
18
a newspaper could not be fashioned in a way to “imply either
that it conceals [a deadly weapon] or is itself such a weapon”;
we simply held that the record “[did] not allow a finding beyond
a reasonable doubt.” Id. at 230.
We can draw several lessons from these cases. First, we
must look to the totality of the circumstances to determine
whether the victim reasonably believed that the defendant was
armed with a deadly weapon. Second, N.J.S.A. 2C:11-1(c)’s broad
reference to “any . . . device, instrument, material or
substance, whether animate or inanimate,” includes cases in
which a body or a body part is fashioned to reasonably appear as
a deadly weapon. For that reason, in Chapland, supra, we
explained that “a first-degree robbery conviction may be based
on the use of a hand or gestures, coupled with threatening
words, simulating possession of a weapon.” 187 N.J. at 291; see
also Huff, supra, 292 N.J. Super. at 190 (defendant patted waist
with hand suggesting presence of gun); LaFrance, supra, 224 N.J.
Super. at 372 (defendant created bulge in coat with hand
suggesting presence of gun).
In the case of an object fashioned to appear as a concealed
gun or a knife, it may be understandable that a robber would
make some gesture to indicate he is armed if for no purpose
other than to underscore the credibility of his threat. The
objective is to persuade the victim that the simulated weapon is
19
real. So, for example, in Huff, supra, the robber, clothed in a
stadium jacket, told the store cashier, “I have a gun here,” and
patted his waist -- the place a gun would likely be concealed --
to fortify the impression that he was armed. 292 N.J. Super. at
188.
But the gesture that may be necessary to make credible the
threat that a feigned object is a gun or a knife may not be
essential to reasonably persuade a victim that a robber’s body
is outfitted as a bomb or that a bomb is secreted in a shoe or
some other apparel. It is widely known that individuals have
concealed explosive devices in their shoes, United States v.
Reid, 369 F.3d 619, 619-20 (1st Cir. 2004), and undergarments,
United States v. Abdulmutallab, 739 F.3d 891, 895 (6th Cir.
2014). Explosive devices are incorporated into vests and belts
worn around the body. United States v. Amawi, 695 F.3d 457,
465-68 (6th Cir. 2012) (describing facts of prosecution for
distributing how-to videos on suicide-bomb vests), cert. denied,
___ U.S. ___, 133 S. Ct. 1474, 185 L. Ed. 2d 387 (2013); cf.
United States v. Conaway, 713 F.3d 897, 898-900 (7th Cir. 2013)
(suicide-bomb vest feigned with mesh belt, inert putty, and
curling iron). There is also the reported case of Brian Wells,
who robbed a PNC Bank in Erie, Pennsylvania, with a real bomb
affixed to his neck and torso. United States v. Diehl-
Armstrong, 739 F. Supp. 2d 786, 788 (W.D. Pa. 2010), aff’d, 504
20
Fed. Appx. 152 (3d Cir. 2012), cert. denied, ___ U.S. ___, 133
S. Ct. 958, 184 L. Ed. 2d 744 (2013). The bomb later detonated
and killed Wells. Ibid.
A robber does not have to pat his chest or shoe to
reinforce the impression that he is carrying a bomb. Such a
gesture is simply superfluous. Because a bomb is known to have
the capacity to cause mass carnage and destruction, the threat
to use such a weapon is likely to induce terror greater than the
threat of a gun or knife. A victim threatened with the
immediate detonation of a bomb is not likely to ask for proof of
its existence. A robber who claims he is armed with a bomb and
is garbed in loose-fitting clothing that may conceal an
explosive device should expect that he will be taken at his
word.
C.
Our case law interpreting the meaning of deadly weapon in
N.J.S.A. 2C:11-1(c) does not take a one-size-fits-all approach.
As noted, we have looked at the totality of the circumstances of
a robbery in assessing whether a defendant has presented a
credible threat that he is armed with a deadly weapon. See
Chapland, supra, 187 N.J. at 286 (identifying issue in Huff as
“whether the circumstances of a simulated weapon were sufficient
to sustain the defendant’s conviction of first-degree robbery”);
Hutson, supra, 107 N.J. at 227 (requiring reasonableness “under
21
the circumstances”). The clothing that a defendant is wearing
at the time of a robbery as well as the placement or concealment
of his hands is highly relevant in assessing the credibility of
the threat. See, e.g., Huff, supra, 292 N.J. Super. at 190.
It is true that a “threat or reference to a deadly weapon
alone is not enough.” Hutson, supra, 107 N.J. at 227. That is
because the jury must find that something has been fashioned to
appear as a deadly weapon under N.J.S.A. 2C:11-1(c). In
determining whether a victim had an actual and reasonable belief
that the defendant was armed with a deadly weapon, the
factfinder, in surveying the totality of the circumstances, must
consider the defendant’s words that convey the threat, his
overall conduct, his dress, and any other relevant factors.
Simulated deadly weapons will either be concealed or
disguised. A victim may not know for certain that a robber is
armed with such a weapon. That the victim believes that the
robber may be armed with a deadly weapon is sufficient to
satisfy the actual-belief requirement. That subjective belief,
however, must also be reasonable under the circumstances. See
Hutson, supra, 107 N.J. at 227-28.
One’s body and body parts and clothing can be fashioned to
appear as a deadly weapon or to conceal one. Nothing in the
language of N.J.S.A. 2C:11-1(c) precludes a victim from
reasonably believing she is facing a robber armed with a deadly
22
weapon when the defendant verbally claims to possess a bomb and
presents his body and clothing to convey a credible bomb threat.
With those principles of law in mind, we next turn to
whether the State presented sufficient evidence to surmount a
motion for judgment of acquittal on first-degree robbery at the
close of the evidence.
VI.
At the close of the evidence, the defendant moved for a
judgment of acquittal, claiming that “the evidence [was]
insufficient to warrant a conviction” of first-degree robbery.
See R. 3:18-1. In assessing the sufficiency of the evidence on
an acquittal motion, we apply a de novo standard of review. See
State v. Bunch, 180 N.J. 534, 548-49 (2004); Pressler &
Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1
(2014). We must determine whether, based on the entirety of the
evidence and after giving the State the benefit of all its
favorable testimony and all the favorable inferences drawn from
that testimony, a reasonable jury could find guilt beyond a
reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).
By that standard, we now view the evidence. The bank
teller observed defendant, as he approached her counter, wearing
bright-colored pants and a camouflage hooded sweatshirt covering
an oversized t-shirt. Leaning over the counter with his hood
23
over his head, he told her either “I have a bomb,” “I have a
bomb strapped to me,” or “I have a bomb strapped to my chest.”
At the same time, he demanded either seven or nine million
dollars. The teller could not see defendant’s torso, hands, or
feet. The teller was faced with an unequivocal threat.
She could not know for certain whether defendant, in fact,
was armed with a bomb. She acknowledged that, in those
desperate moments, at one point she thought he did not have a
bomb because it would be “silly” for a person to blow himself up
for money, and at another point she thought “there [was] a very
good possibility that [he had] a bomb” because he might be
“crazy enough to do something like that.” To the extent that
the teller gave inconsistent statements concerning her belief,
those contradictions were for the jury to resolve.
The issue is -- giving the State the benefit of all
favorable inferences -- whether the teller had an actual and
reasonable belief that defendant was carrying a bomb in or under
his clothes. Today, the sad reality is that persons have armed
themselves with bombs concealed under their clothes, in shoes,
and in headgear. In a real way, persons have “fashioned”
themselves as bombs. In one well-publicized bank robbery case,
a robber had a bomb attached to his neck and torso set to
explode -- and tragically, it did. Diehl-Armstrong, supra, 739
F. Supp. 2d at 788.
24
In this case, the teller admitted that she was scared and
gave defendant $552 without a dye pack or marked bills. The
inference drawn in favor of the State is that the teller would
not have parted with the bank’s money if she did not believe the
threat was real. The teller could not know defendant’s mental
or emotional condition, his background, or the story of his life
that brought him to this violent point. She did not have to
wager whether he might or might not carry out a seemingly
irrational act because of mental illness, desperation, or some
misbegotten ideological belief. No useless gesture was required
to give defendant’s threat of a deadly weapon further credence,
and if one were needed, what would it be?
Defendant’s words were not uttered in a vacuum. Defendant
was not attired in a t-shirt, shorts, and sandals, but in
clothes that easily could have concealed a real bomb. We
disagree with the Appellate Division, which stated that the
teller’s belief about the possible presence of a bomb “bore no
reference to the conduct, clothing or demeanor of defendant.”
During her testimony, in response to a question whether she saw
a bomb, the teller answered, “No,” but explained, “he had a big
hooded sweatshirt on.” The teller was not blissfully unaware
that defendant’s clothes might conceal a bomb.
The Appellate Division did not give the State the benefit
of the favorable testimony and favorable inferences that
25
supported the State’s theory that the teller actually and
reasonably believed defendant was armed with a deadly weapon.
Instead, the Appellate Division acted as a factfinder.
Given the totality of the circumstances of this bank
robbery, including defendant’s words, conduct, and clothing, as
well as contemporary knowledge that bombs have been concealed on
persons, a rational jury could have found that defendant
“fashioned” himself in a way that led the teller to reasonably
believe that he possessed a bomb that was “capable of producing
death or serious bodily injury,” N.J.S.A. 2C:11-1(c).
Accordingly, the Appellate Division erred by entering a
judgment of acquittal.4
VII.
For the reasons expressed, we reverse the judgment of the
Appellate Division and reinstate defendant’s conviction of
first-degree robbery. We remand to the Appellate Division for
consideration of the evidentiary issue it did not reach.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion.
4
We note that the Appellate Division’s entry of a judgment of
acquittal on the deadly-weapon issue should not have led to an
outright acquittal. The jury made separate findings of guilt on
both second-degree and first-degree robbery. The finding of
guilt on second-degree robbery was not at issue, and therefore
the Appellate Division should not have vacated that lesser-
included conviction.
26
SUPREME COURT OF NEW JERSEY
NO. A-8 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KELVIN WILLIAMS,
Defendant-Respondent.
DECIDED August 11, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1