Opinion
DOCKET NO. A-1513-13T4
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TRUNICE THOMAS-HUNTER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (NaSheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-0117. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (NaSheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Trunice Thomas-Hunter was convicted of five counts of theft by deception, N.J.S.A. 2C:20-4. The offenses were based on her dishonest conduct in depositing checks made out in her name by an elderly reverend whom she had been living with and caring for. The jury acquitted defendant of the other counts in the indictment, including multiple charges of forgery.
The State's proofs established that defendant was a long-time personal friend of the victim, Reverend Gladwin Fubler. The reverend performed defendant's marriage ceremony years ago. He was fond of defendant, her husband, and their teenage daughter Zebbie. The reverend has no children of his own, although he has a niece Cynthia McKinney, who became one of the prime witnesses for the State at trial.
The reverend's surname is also spelled "Fubbler" at times in the record. --------
After the reverend's wife died, he received a sum of money that he converted into an annuity. Apparently lonely, he invited Zebbie to live with him. McKinney, who was to inherit the reverend's house under his will, acceded to the arrangement. Defendant also moved in to the reverend's house herself, while her husband and some of her other children remained in their marital home.
Defendant cooked meals for the reverend, cleaned his house, took him to doctor's appointments, and performed other tasks. She and McKinney also helped pay his bills. Eventually Fubler signed a power of attorney authorizing defendant to act on his behalf. The power of attorney was prepared by a lawyer who is Zebbie's godfather. The instrument was forwarded to the reverend's bank and to the company that held his annuity account.
In May 2008, when the reverend and McKinney left the country to go to a relative's funeral, defendant deposited into her own bank account two checks drawn on his account and made out to her for $75,000 and $76,928.15. Thereafter, defendant attempted to obtain for herself a full surrender of the remaining balance in the reverend's annuity account. An auditor suspecting forgery or other wrongdoing launched an investigation. Other questionable checks and transactions designed to benefit defendant surfaced. A grand jury then indicted defendant and charged her with numerous theft-related offenses and forgery.
The State's theme at trial was that defendant took advantage of the reverend for her personal financial gain. Defense counsel countered that the reverend was simply being generous to defendant and Zebbie, whom he had promised to help pay for her schooling. The jury deliberated several days and found defendant guilty of multiple acts of theft by deception.
The trial judge denied defendant's motions for a judgment of acquittal and for a new trial in a detailed written opinion. He sentenced defendant on the second-degree theft offenses to a seven- year custodial sentence, with a three-and-a-half-year parole disqualifier, concurrent to the sentences on the other counts.
On appeal, defendant argues:
POINT ONEHaving reviewed these contentions in light of the record and the applicable law, we affirm defendant's conviction and sentence.
THE TRIAL COURT'S ERRONEOUS JURY CHARGES ON THEFT BY DECEPTION DEPRIVED MS. THOMAS-HUNTER OF HER RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. Const. Amends. V, VI, and XIV; N.J. Const. (1947), Art. I, Pars. 1, 9, and 10.) (Not Raised Below).
POINT TWO
THE TRIAL COURT ERRED IN DENYING MS. THOMAS-HUNTER'S MOTIONS FOR A NEW TRIAL AND JUDGMENT OF ACQUITTAL BASED ON REV. FUBBLER'S INCOMPETENCE AS A WITNESS.
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
I.
Defendant argues for the first time on appeal that the trial judge erred and prejudiced her in the jury charge when explaining the elements of theft by deception under N.J.S.A. 2C:20-4. She complains that the judge should not have read the jury the portion of the model charge that concerns a failure to correct a victim's mistaken impression about the disposition of the victim's money or property. See Model Jury Charge (Criminal), N.J.S.A. 2C:20-4, "Theft By Deception" (April 2013). She maintains that this portion of the charge was inapplicable because she allegedly owed no fiduciary duty to the reverend. We disagree.
In considering defendant's criticism of the jury charge, we recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (citation omitted) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). Even so, since defendant did not object at trial to this facet of the charge, we must view her newly-minted objection through the lens of the plain error rule. R. 2:10-2. As our Supreme Court long ago defined it, plain error in this context must rise to a level that amounts to "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); see also State v. Singleton, 211 N.J. 157, 182-83 (2012) (continuing to apply this definition).
We discern no error, let alone plain error, in the jury charge that was issued here. The charge, with a few minor variations, fundamentally tracked the language of the model charge for theft by deception. We reject defendant's claim that the charge should have omitted language concerning a defendant's duty to correct the victim's mistaken impressions about the disposition of his property or funds. Defendant indisputably had the responsibilities of loyalty and financial integrity attendant to the power of attorney that the reverend granted to her. Through her long relationship with the reverend, ultimately resulting in her moving into his home with her daughter, defendant gained the reverend's trust and confidence. There was more than ample grounds in the record to support a fiduciary relationship. The charge was entirely appropriate.
We also reject defendant's separate contention that the charge improperly allowed the jurors to aggregate her multiple acts of theft in count twenty-four of the indictment. Such aggregation of constituent thefts that are found to be part of a common scheme is consistent with the law, see, e.g., State v. Childs, 242 N.J. Super. 121, 132 (App. Div.), certif. denied, 127 N.J. 321 (1990), and also was factually supported by the State's proofs.
II.
We find no merit in defendant's next argument that the reverend was incompetent to testify as a witness for the State at trial. The modern standards of witness competency in New Jersey law are not as stringent as they were in earlier cases. See State v. G.C., 188 N.J. 118, 133 (2006) (reflecting this modern approach); see also Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 601 (2015). As declared in N.J.R.E. 601, "[e]very person is competent to be a witness," unless the court finds that one of the three exceptions in the rule are demonstrated. Those exceptions apply where "(a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by [the evidence] rules or by law." Ibid. None of these exceptions apply here to overcome the presumption of the reverend's testimonial competence.
Defendant argues that the reverend was too forgetful and unsure during his testimony to be competent to take the stand. Although the record does contain several instances in which the reverend could not recall certain matters, those lapses do not categorically require the exclusion of his testimony. There is no indication that the reverend failed to comprehend the gravity of his oath to tell the truth. There is no expert medical proof indicating that the reverend was incapable of understanding the questions being posed to him or responding to them to the best of his recollection.
Defense counsel took advantage of the reverend's memory lapses in cross-examination in an effort to impeach his testimony. Yet, despite those lapses, during closing argument defense counsel essentially acknowledged the reverend's competence, stating: "I don't think that Reverend Fubler is forgetting a whole lot. I just think Reverend Fubler is a gracious elderly man [who got] caught between a rock and a hard place." (Emphasis added). The defense cannot have it both ways.
The court did not err in allowing the reverend to testify, and we endorse the court's thoughtful analysis of this issue in its written opinion denying a new trial. See also State v. R.W., 104 N.J. 14, 19 (1986) (noting that "[t]he determination of whether a person is competent to serve as a witness lies in the discretion of the [trial] court").
III.
Lastly defendant argues that her custodial sentence is manifestly excessive, contending that the judge misapplied the pertinent aggravating and mitigating factors. We are mindful that defendant is a middle-aged person with no prior criminal record. Nevertheless, we are unpersuaded that the sentencing judge abused his discretion in identifying and weighing the applicable aggravating and mitigating factors. State v. Bolvito, 217 N.J. 221, 228 (2014) (reiterating that appellate courts should not second-guess sentencing decisions absent a "clear showing of abuse of discretion") (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). The custodial sentence was justified in light of the vulnerability of the elderly victim and defendant's multiple dishonest acts to take his funds for her own personal use.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION