STATE OF NEW JERSEY VS. PHILLIP C. ATKINSON (18-02-0156, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-2046-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILLIP C. ATKINSON,
a/k/a PHIL ATKINSON,
and PHILIP ATKINSON,

Defendant-Appellant.
________________________

Submitted December 14, 2020 – Decided June 11, 2021

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey,
Law Division, Cape May County, Indictment No. 18-
02-0156.

Joseph E. Krakora, Public Defender, attorney for
appellant (Joshua D. Sanders, Assistant Deputy Public
Defender, of counsel and on the brief).

Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen A. Pickering,
Senior Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM

After a jury trial, defendant Phillip Atkinson was convicted of third-

degree theft by unlawful taking, pursuant to N.J.S.A. 2C:20-3(a). The trial court

sentenced defendant to a seven-year term of incarceration. Defendant raises two

issues on appeal, challenging a supplemental charge given by the trial court on

theft and contending that his sentence is excessive. For the reasons set forth, we

affirm.

I.

Christina Voncolln left her sister's apartment complex to go to Atlantic

City. She was carrying a gray and black wristlet (a wallet with a strap that hangs

from the wrist). The wristlet contained credit cards, bank cards, pictures of her

children, and one hundred and ninety dollars. As Ms. Voncolln walked down

the stairs from her sister's apartment, she heard a noise and saw defendant. She

asked defendant what he was doing, after which defendant ripped the wristlet

off her arm and ran down the stairs. Ms. Voncolln saw defendant's face when

he looked back while running. Defendant is the cousin of Ms. Voncolln's child's

father. She testified she saw defendant "a lot" prior to January 18, 2018, the day

of the incident.

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 After defendant took the wristlet, Ms. Voncolln told her sister to call the

police. Minutes later, police officers arrived at the apartment complex and Ms.

Voncolln described the incident to them. She also gave the police a description

of the vehicle defendant used to flee from the scene. Later that day, Wildwood

police contacted Ms. Voncolln and asked her to ride with them to a stopped

vehicle where they performed a show-up identification. While there she

identified defendant as the person that took her wristlet. She told the officers

she was one hundred percent certain about her identification of defendant. The

police found Ms. Voncolln's wristlet on the floor of the seat where defendant

sat.

During the charge conference at trial, counsel and the court discussed

modifications to the proposed charge, after which counsel informed the court

that the charge was acceptable. Defendant did not object to the model

supplemental charge on theft, which was included in the final version of the

charge.

After summations, the court charged the jury. The supplemental theft

charge read as follows:

If you find Mr. Atkinson was in possession of the
wristlet purse within a reasonably short period of time
after the theft, you may infer that Mr. Atkinson is the
thief. Although possession of stolen property within a

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 short period of time from the theft is not in and of itself
a crime, since it is possible under our law innocently to
possess such goods, such possession within a
reasonably short time after the theft may be found
sufficient by you to infer that the possessor is the thief
unless the evidence shows to your satisfaction that the
property was acquired by Mr. Atkinson by legal means.
Exclusive possession of stolen property shortly after
the theft is ordinarily a circumstance from which you
may reasonably draw the inference and find in light of
the surrounding circumstances shown by the evidence
in the case that the possessor is the thief.

[emphasis added.]

The jury acquitted the defendant of robbery, but found him guilty of third-

degree theft by unlawful taking. The State moved for an extended term at

sentencing. The trial court found defendant qualified for an extended term and

sentenced him to seven years imprisonment.

On appeal, defendant makes two arguments:

POINT I:

BECAUSE THE SUPPLEMENTAL CHARGE ON
THEFT WAS CONTRARY TO THE PRESUMPTION
OF INNOCENCE, REVERSAL AND REMAND FOR
A NEW TRIAL IS NECESSARY (NOT RAISED
BELOW)

POINT II:

MR. ATKINSON'S SENTENCE IS EXCESSIVE,
UNDULY, PUNITIVE, AND MUST BE REDUCED

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 II.

An essential ingredient of a fair trial is that a jury receive adequate and

understandable instructions. Correct 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) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). The

instructions must be accurate and provide 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. Singleton, 211 N.J. 157, 181-82

(2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). In assessing the

propriety of a jury charge, an appellate court should examine the entire charge

to see whether it was ambiguous or whether it misinformed the jury of the law.

See State v. Figueroa, 190 N.J. 219, 246 (2007).

When a defendant fails to object to a jury charge at trial, "there is a

presumption that the charge was not error and was unlikely to prejudice the

defendant's case." Singleton, 211 N.J. at 182. In cases like this, the standard of

review is plain error. State v. Nero, 195 N.J. 397, 407 (2008) (citing State v.

Chapland, 187 N.J. 275, 288-89 (2006)). "[P]lain error requires demonstration

of 'legal impropriety in the charge prejudicially affecting the substantial rights

of the defendant and sufficiently grievous to justify notice by the reviewing

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court and to convince the court that of itself the error possessed a clear capacity

to bring about an unjust result.'" Ibid. (quoting Chapland, 187 N.J. at 288-89).

The alleged error is viewed in totality of the entire charge and the error is

considered in light of the strength of the State's overall case. Ibid. (quoting

Chapland, 187 N.J. at 288-89).

Defendant argues that the disputed language in the supplemental theft

charge is inconsistent with the presumption of innocence. Defendant's theory is

that the phrase "unless the evidence shows to your satisfaction that the property

was acquired by Mr. Atkinson by legal means" created a presumption against

innocence, and that disputed phrase effectively implied defendant was a thief.

Defendant argues that because the supplemental jury charge as written is

inconsistent with the presumption of innocence, it led to an unjust result and

warrants a new trial. We disagree.

The charge the trial court gave the jury contained numerous references to

defendant's presumption of innocence as well as the State's burden of proof. The

court thoroughly instructed the jury concerning the presumption of defendant's

innocence, as well as the State's obligation to prove each element of the charges

against defendant beyond a reasonable doubt. In addition to viewing the

disputed supplemental charge in the totality of the entire charge, we evaluate the

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strength of the State's case. Nero, 195 N.J. at 407. The record shows Ms.

Voncolln knew defendant from previous family contact. Ms. Voncolln saw

defendant's face immediately after he took her wristlet. Ms. Voncolln identified

defendant at a show-up identification shortly after the theft. Finally, the police

found Ms. Voncolln's wristlet in the vehicle they stopped and subsequently

searched. On this record, taking the jury instructions as a whole against the

backdrop of proofs presented, we find no error clearly capable of producing an

unjust result. Nero, 195 N.J. at 407 (citation omitted).

III.

"An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). A sentencing court must first "determine whether the minimum

statutory eligibility requirements for an extended-term sentence are present."

State v. Pierce, 188 N.J. 155, 169 (2006); see also State v. Tillery, 238 N.J. 293,

323 (2019). "[O]nce the court finds that those statutory eligibility requirements

are met, the maximum sentence to which defendant may be subject . . . is the top

of the extended-term [sentencing] range." Pierce, 188 N.J. at 169; see also

Tillery, 238 N.J. at 324. "On appellate review, [we] apply an abuse of discretion

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standard to the sentencing court's explanation for its sentencing decision within

the entire [sentencing] range." Pierce, 188 N.J. at 169-70.

Appellate courts must affirm the sentence of a trial
court unless: (1) the sentencing guidelines were
violated; (2) the findings of aggravating and mitigating
factors were not "based upon competent credible
evidence in the record;" or (3) "the application of the
guidelines to the facts" of the case "shock[s] the judicial
conscience."

[State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to impose an

extended sentence when the court finds that defendant is a persistent offender.

Pierce, 188 N.J. at 161. The prerequisites are:

The defendant has been convicted of a crime of the first,
second or third degree and is a persistent offender. A
persistent offender is a person who at the time of the
commission of the crime is 21 years of age or over, who
has been previously convicted on at least two separate
occasions of two crimes, committed at different times,
when he was at least 18 years of age, if the latest in time
of these crimes or the date of the defendant’s last
release from confinement, whichever is later, is within
10 years of the date of the crime for which the
defendant is being sentenced.

[N.J.S.A. 2C:44-3(a).]

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Further, "[i]n the case of a crime of the third-degree," the court has discretion to

sentence individuals between three years and five years. N.J.S.A. 2C:43-6.

However, individuals convicted of a third-degree crime who are eligible for an

extended term may be sentenced up to ten years. See N.J.S.A. 2C:43-7(a)(4);

see also Pierce, 188 N.J. at 169.

Defendant argues that his sentence was excessive, unduly punitive, and

must be reduced. He further argues that his prior criminal history is not

proportionate to the sentence that he received.

The trial court followed the statutory guidelines. It cited defendant's

substantial criminal history, 1 incorporated its own trial observations, and

declared defendant a persistent offender who qualified for an extended term.

Defendant conceded his eligibility for persistent offender status during argument

at sentencing.

There is substantial evidence in the record to support the trial court's

findings of aggravating and mitigating factors set forth in its comprehensive oral

opinion at sentencing. Where a judge has followed the sentencing guidelines,

1
In 1998, defendant pled guilty to first-degree robbery. In 2006, defendant was
convicted of third-degree possession of a controlled drug substance. In 2009,
defendant was convicted of third-degree possession with intent to distribute
CDS. In 2014, he was convicted of third-degree possession of CDS.
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and her findings of aggravating and mitigating factors are supported by the

record, we will only reverse if the sentence "shocks the judicial conscience" in

light of the particular facts of the case. Roth, 95 N.J. at 364. "Defendant's

sentence[], albeit lengthy, [does] not cross that threshold." State v. Cassady,

198 N.J. 165, 184 (2009).

Affirmed.

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