STATE v. WEEKS

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0629-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEROY A. WEEKS, a/k/a
LEROY A. EEKS, ADAM
JONES, AHMED MED,
AHMED WEEKS, and
MED WEEKS,
Defendant-Appellant.
Argued September 27, 2023 – Decided November 8, 2023
Before Judges Haas and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 19-10-0621.
Alyssa Aiello, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Alyssa Aiello, of counsel
and on the briefs; Tiffany J. Barlow, Assistant Deputy
Public Defender, on the briefs).
NOT FOR PUBLICATION WITHOUT THE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.
2 A-0629-21
Milton S. Leibowitz, Assistant Prosecutor, argued the
cause for respondent (William A. Daniel, Union County
Prosecutor, attorney; Milton S. Leibowitz, of counsel
and on the brief).
PER CURIAM
Tried to a jury, defendant Leroy A. Weeks was convicted of third-degree
theft from the person of another, N.J.S.A. 2C:20-2(b)(2)(d); and disorderly
persons simple assault, N.J.S.A. 2C:12-1(a)(1). For the theft, defendant was
sentenced as a persistent offender to a six-year extended term with a three-year
period of parole ineligibility pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-
3(a). For the simple assault, defendant was sentenced to a six-month concurrent
term.
On appeal, defendant presents three points for our consideration:
POINT I
THE STATE PRESENTED INSUFFICIENT
EVIDENCE TO PROVE DEFENDANT
COMMITTED THEFT FROM THE PERSON.
POINT II
REVERSAL OF THE THEFT-FROM-THE-PERSON
CONVICTION IS REQUIRED BECAUSE THE JURY
WAS NOT GIVEN THE OPTION OF FINDING
DEFENDANT GUILTY OF THE LESSER-
INCLUDED OFFENSE OF DISORDERLY PERSONS
THEFT, EVEN THOUGH THERE WAS A CLEAR
EVIDENTIAL BASIS UPON WHICH THE JURY
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COULD HAVE CONCLUDED THAT THE THEFT
OF THE BEER FROM THE HALLWAY STEPS WAS
NOT "FROM THE PERSON OF ANOTHER."
POINT III
A REMAND FOR RESENTENCING IS REQUIRED
BECAUSE THE JUDGE'S DECISION TO IMPOSE
AN EXTENDED TERM WAS BASED ENTIRELY
ON CONDUCT FOR WHICH DEFENDANT WAS
ACQUITTED.
We have considered these arguments in light of the record and applicable
legal standards and affirm defendant's conviction and sentence.
I.
The State adduced the following facts at trial, primarily through
surveillance video from the apartment building where both defendant and the
victim F.G.1 resided. In the evening of August 8, 2019, defendant arrived at the
apartment building by bicycle. After placing his bike near the entrance to the
building, defendant sat down on the front steps. Shortly thereafter, F.G. arrived
at the door and met a delivery person, who handed him a twelve-pack case of
beer.
During F.G.'s exchange with the delivery person, defendant stood up and
placed his hand on the front door. When F.G. went back into the building, he
1 We use the victim's initials to protect his privacy.
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forcibly shut the door as defendant's hand was on it, causing defendant to lurch
forward. F.G. then hurried towards the stairs leading to his apartment, and
defendant entered the building using his key access.
Defendant followed F.G. into the stairwell, ran at him, and used his body
to slam F.G. against the wall while hitting him in the head with his forearm. As
F.G. fell, defendant punched him again. F.G. was knocked unconscious and
collapsed on the stairs, bleeding from his head. He dropped the case of beer,
which landed at his feet. Defendant picked up the case of beer, walked away
with it and retrieved his bike from the front steps. Defendant then returned to
F.G., who was still lying in a pool of blood on the stairs, and took photos of him.
Defendant returned to his apartment and posted on Facebook two photos of F.G.
with a laughing emoji and text that read:
Wasn't going to post it but the cops ain't been to my
door yet. He ain't got no papers so no police called.
Racists spics. Hate that I'm in this building and the only
Negro. They had it coming. He pulled the door closed,
almost got my fingers. Seen I had a key and started
running. Lol. Sipping on his case…
He also posted a photo of himself drinking the beer in what the trial court
found to be "a mocking and celebratory way."
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Defendant was indicted for first-degree robbery, second-degree
aggravated assault with attempt to cause serious bodily injury, and first-degree
bias crime with a purpose to intimidate.
In addition to charging the jury on the indicted offenses, the court also
instructed the jury on third-degree theft from the person as a lesser-included
offense of robbery, and third-degree aggravated assault with attempt to cause
significant bodily injury and disorderly persons simple assault as lesser-included
offenses of aggravated assault with attempt to cause serious bodily injury. The
jury found defendant guilty of third-degree theft from the person and disorderly
persons simple assault, and not guilty of bias intimidation.
The State moved to sentence defendant to an extended term as a persistent
offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a). The court found
defendant was over the age of twenty-one when he committed the instant
offenses and had eight prior adult criminal convictions, including five
convictions in the ten years preceding the instant offenses, with the most recent
one committed seven months prior. Accordingly, the court found defendant met
the statutory definition of a persistent offender and was eligible for a
discretionary extended sentence. The State sought a ten-year sentence. Defense
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counsel did not contest defendant's eligibility for extended sentencing but
requested the court exercise its discretion not to impose it.
In sentencing defendant, the court addressed aggravating and mitigating
factors pursuant to N.J.S.A. 2C:44-1(a) and (b). The court did not grant the
State's request to find aggravating factor one (nature and circumstances of the
offense), but noted it was a "close call." The court found aggravating factor
three (the risk that defendant will commit another offense), based on defendant's
"constant stream of anti-social conduct from a juvenile to the present," including
"more than a dozen arrests for assaultive conduct." It also found aggravating
factor six (the extent of the defendant's prior criminal record), which it gave
great weight because defendant had "approximately fifty-seven separate
incidents in either the family court, juvenile justice system, a multitude of states
. . . and the State of New Jersey." The court also found aggravating factor nine
(the need for deterring the defendant and others from violating the law) and gave
it great weight because "the public must be protected from [defendant]. In his
present state, the slightest provocation results in volcanic rage."
The court did not grant defendant's request to find mitigating factor one
(defendant's conduct neither caused nor threatened serious harm) because F.G.
testified to the fear he experienced when defendant ran at him with "such force
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as to render him unconscious and motionless." The court likewise did not find
mitigating factor two (defendant did not contemplate that the defendant's
conduct would cause or threaten serious harm), because defendant "deliberately
and consciously chased and ran this victim down, who was retreating, cowering,
frankly, holding the twelve-pack of beer so he was utterly defenseless and
[defendant] exploited that and with a running start, with his full body weight,
struck the victim in his face."
In balancing the factors, the court determined the aggravating factors
substantially outweighed the non-existing mitigating factors. The court then
stated:
The defense's position is that the defendant was insulted
because the victim shut the door on the defendant.
[Defendant] was not injured. His fingers were not
jammed in the door, prompting an outburst that might
be explainable even if improper. Defendant didn't
suffer any physical injuries from the perceived insult.
There were about a thousand other ways . . . that you
could have more properly expressed your frustration
and your disappointment of being subjected in your
mind to undeserved, undignified conduct but, instead,
you flew into a rage, full speed. You ran through the
front foyer, hell bent on exacting retribution for a
perceived slight and you did so with brutal efficiency.
At full speed with your fist cocked, you struck a
hapless, helpless victim with your full body weight
behind you, propelled by a running start. Compounding
that, you struck a victim who was cowering and
8 A-0629-21
retreating and who couldn't protect himself and you
struck him with such force, he was rendered
unconscious and motionless and then you left him but
not before you grabbed his [twelve]-pack of beer for
good measure and you left him not knowing, frankly, if
you killed him.
And then I see you return about four minutes later. Was
this return prompted by a pang of human concern for a
stranger? Did you check his pulse? Did you contact a
neighbor? Did you call 911? You had your phone and
you used your phone.
At this juncture, he was laid out still in an ever-
increasing pool of blood dripping down a multitude of
steps. No. Instead, as stated over and again, you took
his picture, you posted it, and mocked him.
That this offense occurs on the immediate heels on
assaultive conduct on law enforcement indicates to the
[c]ourt in the context of your entire criminal history that
you pose a serious risk to the safety of the public. That
doesn't mean . . . that I think at any given moment or
every given moment, that you are somebody who
doesn't care about other people, doesn't love your
children or love your mother or otherwise a perfectly
optimal neighbor but under any provocation, perceived
provocation, you result to anger and violence and
there's no way to honestly look at your conduct here or
elsewhere and come to a contrary conclusion.
The [c]ourt will exercise its discretion and sentence you
as a persistent offender because, frankly, if you're not
subject to a persistent offender statute, who would be?
The court noted defendant had never served any lengthy period of
imprisonment. It found the State's request for a sentence in the high range was
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not warranted, but a sentence in the third-degree range did not "adequately
address the seriousness of the offense and the persistent offender statute," and
sentenced defendant to six years with a three-year period of parole ineligibility
for theft, and six months for assault to run concurrently.
II.
A.
Defendant urges us to find he was not guilty of theft from the person
because F.G. was unconscious and therefore not in custody or control of his
property when defendant took it. He further argues that because F.G. was
unconscious, there was no danger of confrontation or intrusion of privacy. We
find defendant's arguments unavailing.
When reviewing the sufficiency of evidence to support a criminal
conviction, the relevant question is "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." State v.
Josephs, 174 N.J. 44, 80 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
To prove defendant committed third-degree theft from a person, the State
must prove 1) defendant knowingly took or unlawfully exercised control over
10 A-0629-21
movable property; 2) the movable property was property of another; 3) the
movable property was taken from the person of another; and 4) defendant 's
purpose was to deprive the other person of the movable property. N.J.S.A.
2C:20-2(b)(2)(d); N.J.S.A. 2C:20-3(a).
Defendant points to State v. Blow, 132 N.J. Super. 487 (App. Div. 1975)
and State v. Link, 197 N.J. Super. 615 (App. Div. 1984) to support his argument
he did not take the beer from F.G.'s person.
In Blow, we affirmed a conviction for theft from the person where the
defendant took money from underneath the victim's car seat, because the money
was within the victim's immediate custody and control. Blow, 132 N.J. at 488,
491. "A danger of confrontation between thief and victim was present and the
victim's person and privacy were invaded." Ibid. Thus, we found that the
Legislature did not intend the phrase "from the person" be limited to the physical
person of the victim. Id. at 490. "Rather . . . to constitute larceny 'from the
person' it is sufficient if the property is taken while in [the victim's] possession
and immediate presence." Ibid. (quoting Banks v. State, 74 Ga. App. 449 (Ct.
App. 1946)).
In Link, we likewise affirmed a conviction for theft from the person where
the defendant took the victim's purse, which was located next to her on the train.
11 A-0629-21
We found the purse was in the victim's custody and control and there was a
danger of confrontation and an invasion of the victim's privacy. Link, 197 N.J.
Super. at 619 (citing Blow, 132 N.J. at 491).
Here, a reasonable jury could find defendant guilty beyond a reasonable
doubt of committing third-degree theft from the person. Implicit in the jury's
verdict is that it found defendant's taking of the beer to be an afterthought and
therefore he was not guilty of committing robbery. See State v. Lopez, 187 N.J.
91 (2006). When F.G. dropped the case of beer it remained in his presence at
his feet. Although he may not have been in actual control of it because he was
unconscious, his incapacity was caused by defendant's own conduct. Here, the
danger of confrontation and the invasion of the victim's privacy that we
identified in Blow had already occurred, and defendant's assault should not
benefit him with a lesser grade of offense because of its consequences on the
victim. We are satisfied the Legislature intended theft from the person to
include an unconscious victim, particularly where a defendant has caused the
incapacity.
Thus, viewing the evidence in the light most favorable to the prosecution,
rational triers of fact could find beyond a reasonable doubt defendant committed
theft from the person. Josephs, 174 N.J. at 80.
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B.
Defendant also argues the trial judge erred by not charging the jury with
disorderly persons theft as a lesser-included offense of robbery because the jury
could have concluded that the theft was not "from the person of another." We
disagree.
"When the parties to a criminal proceeding do not request that a lesser-
included offense . . . be charged, the charge should be delivered to the jury only
when there is 'obvious record support for such [a] charge . . . .'" State v.
Funderburg, 225 N.J. 66, 81 (2016) (quoting State v. Powell, 84 N.J. 305, 319
(1980)). "A trial court should deliver the instruction sua sponte 'only where the
facts in evidence "clearly indicate" the appropriateness of that charge.'" Ibid.
(quoting State v. Savage, 172 N.J. 374, 397 (2002)).
Because defendant did not ask for the jury charge, we review under a plain
error standard. State v. Singleton, 211 N.J. 157, 182-83 (2012). Plain error is
error that is "clearly capable of producing an unjust result." Id. at 182; See
also R. 2:10-2. In terms of its effect in a jury trial, the error must be "sufficient
to raise a reasonable doubt as to whether the error led the jury to a result it
otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Here, the record discloses no error, let alone plain error. The undisputed video
13 A-0629-21
evidence showed defendant knocking F.G. unconscious and then taking his beer.
As we just held, these actions constitute theft from the person and therefore the
court did not err in not charging disorderly persons theft.
Moreover, faced with a robbery charge, during summation defense
counsel urged the jury to find defendant guilty of theft from the person:
[T]he beer is an afterthought. It's after the fact. His
intentions at that time was to connect with [F.G.], fist
to face. After that, the beer that's right there, he took
it. It's theft from a person. He committed a theft. Yes,
he did. He committed a simple assault. Yes, he did.
He punched him in his face. Yes, he did. He did all
that stuff. He is liable for that, but this wasn't an
aggravated assault. This was not a bias intimidation
crime. This was not a robbery. (emphasis added).
"A defendant cannot request the trial court to take a course of action, and
upon adoption by the court take his chance on the outcome of the trial, and, if
unfavorable, then condemn the very procedure which he urged, claiming it to be
error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966)
(citing State v. Pontery, 19 N.J. 457, 471 (1955)). The doctrine of invited error
"is designed to prevent defendants from manipulating the system." State v.
Jenkins, 178 N.J. 347, 359 (2004).
Given defendant's approval of the jury charges, which did not include the
lesser-included offense of disorderly persons theft, and the lack of foundation
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for the court to sua sponte include the charge, we discern no error clearly capable
of producing an unjust result.
C.
Defendant argues the case should be remanded for resentencing because
the court sentenced him as if he had been convicted of first-degree robbery and
second-degree aggravated assault. He further contends the court erred in
acknowledging the theft was "de minimis" but then imposing an extended term
based partly on the assault, which was not subject to an extended term.
Trial courts must "explain and make a thorough record of their findings to
ensure fairness and facilitate review." State v. Comer, 249 N.J. 359, 404 (2022).
See State v. Torres, 246 N.J. 246, 272 (2021) (requiring an "explanation for the
overall fairness of a sentence"); State v. Fuentes, 217 N.J. 57, 74 (2014) ("A
clear and detailed statement of reasons is thus a crucial component of the process
conducted by the sentencing court, and a prerequisite to effective appellate
review.").
"Proper sentencing thus requires an explicit and full statement of
aggravating and mitigating factors and how they are weighed and balanced."
State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting State v. Randolph, 210
N.J. 330, 348 (2012)). "[C]ritical to the sentencing process and appellate review
15 A-0629-21
is the need for the sentencing court to explain clearly why an aggravating or
mitigating factor presented by the parties was found or rejected and how the
factors were balanced to arrive at the sentence." State v. Case, 220 N.J. 49, 66
(2014) (citing Fuentes, 217 N.J. at 73.) The reviewing court should affirm the
sentence, so long as the sentence does not "shock the judicial conscience." Id.
at 65.
Here, the court was authorized to impose a sentence between three and ten
years. The record reflects sound reasons for the court's determination and
balancing of aggravating and mitigating factors, and its detailed reasons for
imposing the six-year sentence.
Despite defendant's contentions, this case is not analogous to State v.
Melvin, 248 N.J. 321 (2021). In that case, the trial court made factual findings
during sentencing that contradicted the jury verdict; specifically, although the
defendant was acquitted of first-degree murder, the judge determined the
evidence at trial established he was the shooter. Melvin, 248 N.J. at 328-30,
341-45. Our Supreme Court reversed, finding the improper consideration of
acquitted conduct violated due process and fundamental fairness. Id. at 347-52.
Here, the court did not consider facts related to acquitted conduct to
enhance defendant's sentence nor did it make findings contrary to the jury's
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verdict. Rather, the judge, who had also presided over the jury trial and heard
testimony firsthand, considered the facts and circumstances of the underlying
conduct in their entirety. The court recognized the monetary value of the theft
was de minimis, but rightly considered it in context, including defendant's
assault of F.G. before the theft and his conduct after the theft, to be "unjustified
and cold and callous and brutal." The court found the nature and circumstances
of the offense, combined with defendant's "unrelenting and serial" criminal
history including a "multitude of assaultive conduct," justified the imposition of
an extended term. We discern no abuse of discretion in this decision.
Affirmed.