STATE OF NEW JERSEY VS. ELIJAH L. JOHNSON (15-04-1199, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0679-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIJAH L. JOHNSON,
Defendant-Appellant.
________________________
Submitted May 25, 2021 – Decided June 9, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-04-1199.
Joseph E. Krakora, Public Defender, attorney for
appellant (John P. Flynn, Assistant Deputy Public
Defender, of counsel and on the briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Debra B. Albuquerque, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
An Atlantic County grand jury returned a five-count indictment charging
defendant Elijah J. Johnson and his two co-defendants, Juan Ayala and Anthony
Calderon, with first-degree armed robbery, N.J.S.A. 2C:15-1(b) (count one);
second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a handgun
without a permit, N.J.S.A. 2C:39-5(b)(1) (count three); second-degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
four); and fourth-degree aggravated assault by pointing a handgun at another
person, N.J.S.A. 2C:12-1(b)(4) (count five). Prior to defendant's trial, the judge
granted the State's motion to amend count three to third-degree unlawful
possession of an air gun without a permit, N.J.S.A. 2C:39-5(b)(2).
After the judge suppressed a recorded statement defendant gave to the
police following his arrest, we granted the State's motion for leave to appeal and
held that the statement was admissible. State v. Johnson, No. A-5671-16 (App.
Div. Feb. 20, 2018) (slip op. at 5-6). Following a multi-day trial, the jury
acquitted defendant of first-degree robbery, but convicted him of the lesser-
included offense of third-degree theft, N.J.S.A. 2C:20-2(b)(2)(d) under count
one; second-degree conspiracy to commit armed robbery under count two; and
the two weapons offenses charged in counts three and four. The jury found
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defendant not guilty of assault by pointing a firearm at another person and not
guilty of the lesser-included offenses of simple assault and simple assault with
a deadly weapon under count five.
Thereafter, the judge merged the theft and weapons offenses into
defendant's conviction for conspiracy to commit armed robbery, and sentenced
defendant on that conviction to six years in prison subject to an eighty -five
percent period of parole ineligibility and three years of parole supervision upon
release pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This
appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT'S FAILURE TO CHARGE THE
JURY ON THE LESSER-INCLUDED OFFENSE OF
CONSPIRACY TO COMMIT THEFT REQUIRES
REVERSAL OF [DEFENDANT'S] CONVICTION
FOR CONSPIRACY TO COMMIT ARMED
ROBBERY. (Not Raised Below).
POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR
BY FAILING TO INSTRUCT THE JURY ON THE
STATE'S BURDEN TO PROVE IDENTITY AND ON
THIRD-PARTY GUILT. (Not Raised Below).
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POINT III
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE COURT FAILED
TO ADEQUATELY CONSIDER [DEFENDANT'S]
YOUTH IN WEIGHING THE MITIGATING
FACTORS AND WHETHER A DOWNGRADED
SENTENCE WAS IN THE INTERESTS OF JUSTICE.
A. The Court Failed to Adequately Consider
Scientific Research Regarding the Criminal
Culpability of Young Adults in Assessing
Mitigating Factors One, Two, Eight, and Nine.
B. The Matter Should Be Remanded for
Consideration of Mitigating Factor Fourteen.
After reviewing the record in light of these contentions and the applicable
law, we vacate defendant's conviction and sentence for conspiracy to commit
armed robbery, affirm his convictions on the remaining counts, and remand for
further proceedings.
I.
On the day of the incident involved in this case, Ana Soto was working as
an attendant at a gas station. Soto's friend, Orlando DelValle, approached her
during her shift. Soto testified that DelValle told her "[h]e wanted to stage a
robbery. He wanted me to act surprised and [said] that he'll send somebody to
rob me." Soto stated she "told him no," but admitted she also informed her
friend that she "had money."
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DelValle later came back to the gas station with his brother, Ayala.
According to Soto, "they brought up again about the robbery [and] said just act
surprised, we'll send somebody and just hand over the money." Soto "said no."
On a third occasion that day, DelValle and Ayala returned to the gas
station, this time with defendant. They again discussed the robbery scheme and
also "talked about . . . having a gun." Soto testified she "told them that [she]
wasn't going to do the robbery." 1
Soto testified that defendant, DelValle, Ayala, and defendant's girlfriend
came to the gas station a fourth time in a burgundy-colored car. She identified
a surveillance photo showing her speaking to the group, and noted that defendant
was the individual wearing light-colored pants.
Soto stated she did not believe that her friends were serious about the plan.
Nevertheless, she testified she told the station manager's son, Sarabjit Singh,
"what they were talking to [her] about," and gave him $500 she was carrying.
Singh testified that Soto gave him the money "very close to closing time"
because she did not "feel comfortable carrying all the money and she [did not]
1
Soto testified that during one of their conversations, DelValle and Ayala told
her she "didn't have to be worried because the person [who would stage the
robbery] was going back to Camden." Calderon lived in Camden, but defendant,
DelValle, and Ayala did not.
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have a good feeling about" what might happen. Soto kept a small amount of
money to use to make change for the customers.
As closing time approached, Soto was about to begin pumping gas for a
customer in a truck. She stated that as she was asking the customer how much
gas he wanted, "somebody ran up behind [her] with a gun and told [her] to give
[him] the money." Soto claimed the man pointed the gun in her face and she
"thought it was real." She stated she "was scared" and thought she "could die."
The man then took money from Soto's pocket and fled the scene on foot.
The State played surveillance video footage of the incident at the trial.
The man was wearing a black hooded sweatshirt and tan pants, but the
individual's face was covered by what looked like a ski mask. The customer
described the man who took the money from Soto as having a "tan" skin color,
"possibly dark skin Italian or Spanish." However, he stated that he only
"[p]artially" saw the man's face and "[p]robably" could not identify him.
Detective Eugene Soracco interviewed Soto about an hour after the
incident, and then spoke to DelValle, who was found in the vicinity of the gas
station. The police then arrested defendant, Ayala, and Calderon at a "strip
club." Defendant was wearing tan pants that matched the depiction of the
suspect in the surveillance video.
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Before entering the club, the police found a burgundy Mercury Marquis
in the parking lot. Soracco looked in the window and saw what appeared to be
a ski mask in the front passenger door pocket and a black hooded sweatshirt on
the back seat. After a search warrant was obtained, the police also found a pair
of black gloves and "a semi-automatic airsoft pistol" in the car. The parties
stipulated that the weapon was operational.
Defendant subsequently gave a recorded statement to Soracco that the
State played for the jury. Defendant told Soracco it was Ayala's idea to rob the
gas station and that Ayala gave him the airsoft gun. Defendant stated he
approached Soto with the gun while wearing the ski mask, black sweatshirt, and
black gloves seized from the car. Defendant also admitted he was wearing tan
pants that day. He stated that he took about eighty dollars from Soto's pocket
and then ran away.
Defendant told Soracco that the only reason Calderon was at the club with
him and Ayala was that Calderon drove them there in his burgundy Mercury
Marquis. Defendant claimed that Soto did not know there would be a robbery.
Defendant also asserted that although Calderon might have heard him talking to
Ayala about what happened, Calderon likely did not know anything about the
incident.
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Defendant did not testify, and he presented no witnesses.
II.
At trial, defendant's primary argument was that Soto was part of the
scheme to steal money from the gas station. As a result, he asserted that he
should not be found guilty of first-degree armed robbery under count one
because if Soto was a willing participant in the plan and knew it was a staged
event, the State could not prove that he threatened her with the airsoft pistol or
put her in fear of immediate bodily injury as required to sustain a conviction for
this offense under N.J.S.A. 2C:15-1(b). Accordingly, the judge instructed the
jury on the lesser-included offense of third-degree theft from the person, which
merely required that the State prove that defendant took the property of another,
in this case the gas station's money that Soto was carrying.
Count two of the indictment charged defendant with second-degree
conspiracy to commit armed robbery. Because the judge had decided to instruct
the jury on the lesser-included offense of third-degree theft in connection with
the substantive armed robbery charge under count one, it would have been
logical for the judge to also instruct the jury on the lesser-included offense of
third-degree conspiracy to commit theft under count two.
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Inexplicably, however, defendant did not also ask the judge to give the
jury an instruction on the lesser-included offense of third-degree conspiracy to
commit theft, and the judge did not provide this instruction sua sponte. In Point
I, defendant argues that the judge's failure to provide this "clearly indicated"
instruction was plain error requiring that his conviction for second -degree
conspiracy to commit robbery be vacated. We agree.
"When a defendant fails to object to an error or omission [about a jury
charge] at trial, we review for plain error. Under that standard, we disregard
any alleged error 'unless it is of such a nature as to have been clearly capable of
producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Reversal is warranted only where an error raises "a
reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached." Ibid. (alteration in original) (quoting State v. Jenkins,
178 N.J. 347, 361 (2004)). "The mere possibility of an unjust result is not
enough." Ibid. A jury instruction is particularly "crucial to the jury's
deliberations on the guilt of a criminal defendant," and "'[e]rrors [having a direct
impact] upon these sensitive areas of a criminal trial are poor candidates for
rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422-
23 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)).
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In its jury instructions, a "trial court must give '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. Baum, 224 N.J.
147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
Accordingly, "the court has an 'independent duty . . . to ensure that the jurors
receive accurate instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by either party.'"
Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)).
The rationale for imposing such an independent obligation on the trial
judge in this context is that "[n]o defendant should be convicted of a greater
crime or acquitted merely because the jury was precluded from considering a
lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J.
147, 180 (2003). The danger of prejudice to a defendant that may result from a
trial judge's failure to charge a lesser-included offense to the jury is that "[w]here
one of the elements of the offense charged remains in doubt, but the defendant
is plainly guilty of some offense, the jury is likely to resolve its doubts in favor
of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (emphasis omitted)
(quoting Keeble v. United States, 412 U.S. 205, 212-13 (1973)).
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As such, trial courts must "avoid presenting the jury with an 'all-or-
nothing' choice, a choice between convicting a defendant of an offense greater
than the one he committed and not convicting him at all despite his guilt of a
lesser offense." State v. Maloney, 216 N.J. 91, 113 (2013) (Albin, J., dissenting)
(citing Garron, 177 N.J. at 180). Further, the trial court reviews the evidence
"in the light most favorable to [the] defendant." State v. Bauman, 298 N.J.
Super. 176, 198-99 (App. Div. 1997) (citing State v. Galloway, 133 N.J. 631,
648 (1993); State v. Moore, 113 N.J. 239, 287 (1988)).
"[I]f the parties do not request a lesser-included-offense charge, reviewing
courts 'apply a higher standard, requiring the unrequested charge to be "clearly
indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting
State v. Alexander, 233 N.J. 132, 143 (2018)); see also State v. Denofa, 187 N.J.
24, 42 (2006); N.J.S.A. 2C:1-8(e). As such:
The "clearly indicated" standard does not require
trial courts either to "scour the statutes to determine if
there are some uncharged offenses of which the
defendant may be guilty," . . . or "'to meticulously sift
through the entire record . . . to see if some combination
of facts and inferences might rationally sustain' a lesser
charge" . . . . Instead, the evidence supporting a lesser-
included charge must "jump[] off the page" to trigger a
trial court's duty to sua sponte instruct a jury on that
charge.
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[Alexander, 233 N.J. at 143 (second and fourth
alterations in original) (citations omitted).]
Applying these principles, we are convinced that an instruction on the lesser-
included offense of third-degree conspiracy to commit theft under count two was
"clearly indicated" based upon the facts adduced at the trial.
Our Supreme Court has held that "theft, by definition, is a lesser-included
offense of robbery." State v. Ingram, 196 N.J. 23, 39 (2008). This is because
robbery has the same elements as theft with the additional requirement of
demonstrating the defendant used force or threatened bodily harm. N.J.S.A.
2C:15-1(a); N.J.S.A. 2C:20-2(b)(2)(d). Theft is essentially an element of
robbery, making "all robberies . . . thefts, but not all thefts . . . robberies." State
v. Mejia, 141 N.J. 475, 495 (1995). Therefore, because the only difference
between theft and robbery is that theft entails a less serious injury or threat, theft
is a lesser-included offense of robbery. N.J.S.A. 2C:1-8(d)(3).
The same principles apply to conspiracy to commit theft and conspiracy
to commit robbery. To prove any kind of conspiracy, the State must prove that
the defendant agreed with another person to engage in conduct constituting the
offense or agreed to aid another person in the planning or completion of the
offense. State v. Samuels, 189 N.J. 236, 245 (2007). Conspiracy to commit
robbery requires threat of bodily injury or the use of a deadly weapon, whereas
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conspiracy to commit theft requires no such threat, as the State must only show
that the defendant had the purpose of facilitating a theft. N.J.S.A. 2C:15-1(a);
see Model Jury Charges (Criminal), "Theft From The Person (N.J.S.A. 2C:20-
2(b)(2)(d))" (rev. Apr. 14, 2013). The only difference between conspiracy to
commit theft and robbery is the existence of a serious injury or threat, making
conspiracy to commit theft a lesser-included offense of conspiracy to commit
robbery. N.J.S.A. 2C:1-8(d)(3).
Here, the evidence produced by the State at trial "clearly indicated" that
an instruction on the lesser-included offense of conspiracy to commit theft was
warranted. Soto stated that she was approached several times by defendant,
Ayala, and DelValle to participate in the scheme to take money from the gas
station. Although Soto testified she turned down this request, this was a question
of credibility to be determined by the jury. Soto admitted she told DelValle that
she was carrying the station's money. She also indicated she knew a "robbery"
would occur when she gave most of the money she had in her possession to her
co-worker, Singh. Thus, there was more than enough evidence in the record for
the jury to conclude that both Soto and her assailant agreed to fake a robbery, or
that Soto was aware her friends were going to do so, thereby rendering the
offense a third-degree conspiracy to commit theft because there was no
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agreement to threaten bodily harm or use a deadly weapon against her during
the offense.
To be sure, the record also supported the instruction the judge gave to the
jury on the conspiracy to commit robbery charge. Soto testified she did not
believe her friends were serious and she declined their persistent requests that
she participate in their scheme. The jury could have found that Soto's testimony
on this point was credible. In addition, defendant said in his recorded statement
that Soto did not know he was "gonna rob her" and that she was "unwilling" to
give him the money.
However, while the jury did convict defendant of conspiracy to commit
armed robbery, it did so under circumstances in which its only other option was
to acquit defendant of this charge. We cannot say on the basis of this record
that, given a choice, the jury would not have opted to convict defendant of the
lesser-included offense of conspiracy to commit theft if it had been given the
opportunity to do so by the judge's instructions. Indeed, the jury found
defendant guilty of theft, but not guilty of armed robbery or of aggravated
assault by pointing a gun at Soto.
The evidence in support of the lesser-included offense of conspiracy to
commit theft obviously "jumped from the page" because the judge decided to
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instruct the jury on the lesser-included offense of theft under count one based
upon this same evidence. Alexander, 233 N.J. at 143. Once the judge decided
to give that charge, logic and consistency required that the judge also instruct
the jury on the corresponding lesser-included offense as to conspiracy under
count two. Therefore, we vacate defendant's conviction and sentence for
second-degree conspiracy to commit robbery, and remand for further
proceedings, which may include a resolution by plea agreement or a new trial.
III.
In Point II, defendant argues that the trial judge erred by failing to give
the jury a separate instruction on identification and third-party guilt. After
carefully reviewing this contention, we conclude that it is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only
the following brief comments.
As noted, we review a defendant's failure to object to a jury charge at trial
under the plain error standard. See Funderburg, 225 N.J. at 79. In determining
whether an alleged defect in a charge rises to the level of reversible error, the
alleged error must be "viewed in the totality of the entire charge, not in
isolation." State v. Chapland, 187 N.J. 275, 289 (2006); see also State v.
Figueroa, 190 N.J. 219, 246 (2007). "If the defendant does not object to the
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charge at the time it is given, there is a presumption that the charge was not error
and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.
157, 182 (2012). Viewed through the prism of these precedents, we discern no
error on the part of the judge under the circumstances presented here.
While defendant argues that identification was an issue at trial, this
assertion neglects that fact that defendant admitted to his involvement in the
offense in his statement to Detective Soracco. Thus, defendant explained that
he obtained the airsoft pistol from Ayala and used it when he took the money
from Soto. He admitted wearing the black sweatshirt, hat, and gloves found in
the car, and was wearing the same pair of pants shown in the surveillance photo
when he was arrested. Because defendant's identity as a participant in the
offense was not in question, a separate instruction on identification was not
required.
Similarly, defendant took full responsibility for taking the money from
Soto and for carrying the airsoft pistol during the incident. Contrary to his new
suggestion that Calderon may have been the man who took the money, defendant
told Soracco that Calderon was only with him and Ayala because Calderon
wanted to go to the strip club and defendant and Ayala needed him to give them
a ride there. Calderon was also not present for any of the meetings with Soto
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prior to the incident. Thus, there was no basis for the judge to give an instruction
on third-party guilt.
In any event, the judge carefully instructed the jury that the State was
required to prove beyond a reasonable doubt that defendant committed each
element of the offenses for which he was charged. State v. Cotto, 182 N.J. 316,
327 (2005). The judge told the jurors:
The defendant, of course, has pleaded not guilty to the
charges. The defendant [i]n a trial is presumed to be
innocent and unless each and every essential element of
an offense charged is proven beyond a reasonable
doubt, the defendant must be found not guilty of that
charge. The burden of proving each element of a charge
beyond a reasonable doubt rests upon the State and that
burden never shifts to the defendant. The defendant in
a criminal case has no obligation or duty to prove his
innocence or offer any proof relating to his innocence.
Because the judge's instruction fully informed the jurors that they could
only convict defendant if they found that the State established beyond a
reasonable doubt that he was in fact the person who approached Soto at the gas
station and took money from her, no further instructions were needed.
Accordingly, we affirm defendant's convictions for third-degree theft, third-
degree unlawful possession of an air gun without a permit, and second-degree
possession of a firearm for an unlawful purpose.
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IV.
Finally, defendant argues in Point III that the judge erred by failing to
consider his relative youth 2 as a mitigating factor when she sentenced him. He
also points out that our Legislature recently enacted N.J.S.A. 2C:44-1(b)(14)
which, effective October 19, 2020, allows a sentencing judge to consider a
defendant's youth as a statutory mitigating factor, and he asks that this statute
be applied in determining his sentence.
Because of the unique procedural posture of this case, we need not address
these specific issues here. In sentencing defendant, the judge merged
defendant's convictions under counts one, three, and four into his conviction for
second-degree conspiracy to commit robbery under count two. The judge
sentenced defendant under that count to a six-year term, subject to NERA.
Because we have now vacated defendant's conviction and sentence under
count two, a resentencing will be required on counts one, three, and four.
Obviously, the trial court and the parties should resolve count two on its merits
before that occurs. If defendant enters into a plea agreement or is found guilty
after a new trial of the original charge of conspiracy to commit robbery or the
lesser-included offense of conspiracy to commit theft, the court should
2
Defendant was twenty years old at the time he committed the offenses.
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resentence defendant on that conviction and defendant's other three convictions.
If defendant is found not guilty under count two, then the court must resentence
him on the three charges we have affirmed.
As this court recently held, "[w]hen an appellate court orders a
resentencing, a defendant is ordinarily entitled to a full rehearing." State v.
Bellamy, ___ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 9) (citing State
v. Case, 220 N.J. 49, 70 (2014)). Thus, "[t]he resentencing judge must 'view
defendant as he stands before the court on that day unless the remand order
specifies a different and more limited resentencing proceeding . . . .'" Id. at 10
(quoting State v. Randolph, 210 N.J. 330, 354 (2012)). Because the judge who
will be resentencing defendant in this case will be viewing him "as [he] stands
before the court on that day," the judge may consider defendant's arguments
concerning his age at the time he committed the offenses, and apply the new
mitigating factor set forth in N.J.S.A. 2C:44-1(b)(14). Id. at 18 (quoting
Randolph, 210 N.J. at 354).
In sum, we vacate defendant's conviction and sentence under count two
for conspiracy to commit robbery and remand for further proceedings. We
affirm defendant's convictions under counts one, three, and four and remand for
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resentencing on these three charges after the trial court resolves the conspiracy
charge.
Vacated in part; affirmed in part; and remanded. We do not retain
jurisdiction.
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