STATE OF NEW JERSEY v. STEPHON L. WILSON (17-12-3438, CAMDEN COUNTY AND STATEWIDE)

                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4132-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEPHON L. WILSON,

     Defendant-Appellant.
_______________________

                   Submitted January 24, 2022 – Decided February 2, 2022

                   Before Judges Fasciale and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 17-12-3438.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Brian Plunkett, Designated Counsel, on the
                   briefs).

                   Grace MacAulay, Acting Camden County Prosecutor,
                   attorney for respondent (Kevin J. Hein, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant appeals from his convictions for second-degree burglary,

N.J.S.A. 2C:18-2(a)(1); first-degree robbery, N.J.S.A. 2C:15-1(a)(2); third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); two counts

of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d); third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); fourth-

degree stalking, N.J.S.A. 2C:12-10(b); and fourth-degree certain persons not to

have weapons, N.J.S.A. 2C:39-7(a). He received an aggregate prison sentence

of seventeen and one-half years with thirteen years and seven months of parole

ineligibility.

      The State produced evidence that defendant had violent encounters with

the victim and the victim's family on May 14, May 22, and May 28, 2017.

Particularly that defendant stalked the victim and committed the charged

offenses. The evidence included testimony from the victim, testimony from

witnesses, testimony from law enforcement, surveillance video, and DNA from

a knife. Prior to trial, the judge denied defendant's motion to sever the counts

in the indictment pertaining to the May 14 and May 28 encounters. 1 The judge



1
  On appeal, defendant does not explicitly challenge the judge's discretionary
denial of the severance motion.
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charged the jury without objection and the jury found defendant guilty on all

charges.

     On appeal, defendant argues:

           POINT [I]

           DEFENDANT'S CONVICTONS SHOULD BE
           REVERSED AND A NEW TRIAL ORDERED
           BECAUSE THE STATE MISUSED THE STALKING
           STATUTE BOTH SUBSTANTIVELY AND AS A
           DEVISE TO OBTAIN A TACTICAL ADVANTAGE.

                 A. The State Misused N.J.S.A. 2C:12-10(b).

                 B. The State May Not Charge [A] Certain
                 Offense Solely [T]o Obtain [A] Tactical
                 Advantage.

           POINT [II]

           THE FAILURE TO CHARGE DIMINISHED
           CAPACITY WAS REVERSIBLE ERROR BECAUSE
           THE   RECORD     CONTAINED        SUFFICIENT
           EVIDENCE OF A MENTAL DISEASE OR DEFECT
           THAT COULD HAVE NEGATED THE STATE OF
           MIND   REQUIRED    FOR     THE       OFFENSES
           CHARGED. U.S. CONST. ART. I, [§] 10.

           POINT [III]

           BECAUSE THE STATE FAILED TO PRODUCE
           SUFFICIENT FACTS AT TRIAL[,] DEFENDANT'S
           CONVICTION FOR ARMED ROBBERY SHOULD
           BE VACATED AND A JUDGMENT OF
           ACQUITTAL ENTERED.


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POINT [IV]

DEFENDANT'S CONVICTION FOR ARMED
ROBBERY SHOULD BE VACATED BECAUSE THE
TRIAL [JUDGE] FAILED TO FULLY EXPLAIN
LEGAL ISSUES CRITICAL TO THE JURY'S
DETERMINATION, DEPRIVING DEFENDANT OF
HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.

     A. The Trial [Judge's] Instruction Failed [T]o
     Inform The Jury That [T]o [B]e Guilty [O]f
     Robbery Defendant Must Have Formed [T]he
     Intent [T]o Commit Theft Before [A]ny
     Intimidation [O]f W.K. Occurred.

     B. The Trial [Judge] Erred When [He] Failed
     [T]o Instruct [T]he Jury That [I]t Must Find That
     Defendant's Purpose [F]or Putting W.K. [I]n Fear
     [O]f Immediate Bodily Injury [W]as [T]o Coerce
     Him [I]nto Relinquishing His Phone.

POINT [V]

THE [JUDGE] VIOLATED DEFENDANT'S RIGHT
TO A UNANIMOUS VERDICT ON COUNT ONE
ARMED BURGLARY WHEN THE JURORS WERE
INSTRUCTED    THAT   EITHER  STALKING,
CRIMINAL MISCHIEF, AND/OR THEFT COULD
BE FOUND AS THE UNLAWFUL PURPOSE FOR
DEFENDANT'S ENTRY BUT WERE NOT
INSTUCTED THAT THEY MUST UNANIMOUSLY
AGREE ON WHICH PURPOSE(S).

POINT [VI]

DEFENDANT SHOULD BE RESENTENCED TO A
LOWER AGGREGATE TERM WITH MITIGATING
FACTOR FOUR CONSIDERED.

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We disagree with defendant's contentions and affirm.

                                          I.

      In Point I, defendant challenges the State's decision to try defendant for

stalking. He argues the State misused the stalking statute to gain an unfair

advantage by rebranding "existing crimes [to] recase its allegations of weapons

possession, criminal mischief, and armed robbery into a stalking case." He

contends the State's sole purpose in prosecuting him for stalking was to gain a

"tactical advantage" to present "all of its accusations as one 'continuing course

of conduct' in a single trial."

      The text of the anti-stalking statute is clear and unambiguous. Defendant

has not argued otherwise. Instead, defendant suggests that under the facts of

this case, the State misused the statute to obtain a tactical advantage. Defendant

argues for the first time, without statutory authority, that the scope of the sta tute

is limited to harassing or threatening conduct that occurs before crossing the line

to actual violence. Under N.J.S.A. 2C:12-10(b)

             [a] person is guilty of stalking, a crime of the fourth
             degree, if he purposefully or knowingly engages in a
             course of conduct directed at a specific person that
             would cause a reasonable person to fear for his safety
             or the safety of a third person or suffer other emotional
             distress.


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Under subsection (a), the statute defines its terms:

            (1) "Course of conduct" means repeatedly maintaining
            a visual or physical proximity to a person; directly,
            indirectly, or through third parties, by any action,
            method, device, or means, following, monitoring,
            observing, surveilling, threatening, or communicating
            to or about, a person, or interfering with a person's
            property; repeatedly committing harassment against a
            person; or repeatedly conveying, or causing to be
            conveyed, verbal or written threats or threats conveyed
            by any other means of communication or threats
            implied by conduct or a combination thereof directed at
            or toward a person.

            (2) "Repeatedly" means on two or more occasions.

            (3) "Emotional distress" means significant mental
            suffering or distress.

            (4) "Cause a reasonable person to fear" means to cause
            fear which a reasonable victim, similarly situated,
            would have under the circumstances.

Thus, contrary to defendant's assertion that the statute's scope is limited to

situations where there was no actual attack, there is no such limitation expressed

in the statute. To conclude otherwise would mean that no one could be charged

with stalking once the conduct results in an attack. And if that is the case,

stalkers would not be held accountable for stalking when their behavior

escalates. Like here, the State properly prosecuted defendant for stalking and

the other crimes.


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      The State introduced evidence that defendant stalked the victim on three

separate days in May. On May 14, 2017, witnesses observed defendant destroy

the windows of the victim's car, which was parked at her mother's house, and

then tell the witnesses that "all I want is her" while pointing at the victim. Eight

days later, on May 22, defendant returned to the victim's mother's house, broke

more windows, and left three red roses behind. On May 28, defendant charged

the victim in the morning while she was driving and then broke into her home

through a bathroom window. Hearing noise from outside his room, the victim's

fourteen-year-old son W.K. called the victim to ask if she was home, and she

instructed him to call 911.

      Defendant broke into the son's bedroom with a knife and wanted to know

when the victim would be home. The victim's mother observed the victim on

the phone with the son and watched her leave in a distressed state. The victim's

mother called her grandson's phone, and defendant answered. Defendant told

the victim's mother, "I'm waiting for your daughter here so I can kill her. And

the next one is going to be you." The victim testified that she experienced

emotional distress and could not sleep at night. Suffice to say, he repeatedly

targeted the victim.




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      In denying defendant's pre-trial motion to sever the first and third

incidents, the trial judge concluded that each encounter would have been

admissible in separate trials under N.J.R.E. 404(b). The crimes were relevant to

defendant's motive and plan to stalk and harass the victim. They were similar

in that he smashed windows and threatened the same victim. The State offered

overwhelming evidence from witness observations, surveillance footage

capturing defendant's behavior, DNA evidence linking defendant to the knife,

and in-court and out-of-court identifications. And the probative value was not

outweighed by any apparent prejudice, especially because defendant was not

deprived of any available defense. Thus, even if joinder was appropriate—

which is not the case—the evidence of each encounter between defendant and

the victim would have been admissible under N.J.R.E. 404(b).

                                       II.

      The trial judge did not err by denying defendant's late request, near the

close of trial, that the judge charge diminished capacity. The record presented

no competent evidence of diminished capacity evidencing a mental disease or

defect that somehow negated defendant's state of mind to commit the offenses

or impact his ability to form the requisite culpability. Contrary to his argument,




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any evidence of defendant's mental health was insufficient to warrant a jury

instruction of diminished capacity.

      A defendant asserting a diminished capacity defense carries the initial

burden of "present[ing] evidence of a mental disease or defect that interferes

with cognitive ability sufficient to prevent or interfere with the formation of the

requisite intent or mens rea[,]" and "evidence that the claimed deficiency did

affect the defendant's cognitive capacity to form the mental state necessary for

the commission of the crime." State v. Baum, 224 N.J. 147, 160-61 (2016)

(second alteration in original) (quoting State v. Galloway, 133 N.J. 631, 647

(1993)). Although a defendant must initially "introduce evidence of a mental

disease or defect tending to show that he or she was incapable of forming the

requisite intent, N.J.S.A. 2C:4-2, 'the statute does not shift the burden of proof

to the defendant to disprove an essential element of the case.'"        Id. at 161

(quoting State v. Moore, 122 N.J. 420, 431 (1991)). Hence, "the burden of proof

remains on the State to establish the mens rea of the offense." Ibid. Indeed,

N.J.S.A. 2C:4-2 provides:

            [e]vidence that the defendant suffered from a mental
            disease or defect is admissible whenever it is relevant
            to prove that the defendant did not have a state of mind
            which is an element of the offense. In the absence of
            such evidence, it may be presumed that the defendant


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                                        9
              had no mental disease or defect which would negate a
              state of mind which is an element of the offense.

Without introducing the requisite showing of diminished capacity—through

expert testimony or otherwise—defense trial counsel requested the charge at the

end of the case, pointing to "behavioral things" like "smiling" and "licking his

lips," which were not "typical reactions to a police interview." But defendant

produced no competent evidence of mental disease or defect. Rather, the State

introduced evidence that defendant knew what he was doing as he pursued the

victim at multiple locations. Although defendant behaved strangely, the judge

did not abuse his discretion by denying the request.

                                       III.

       In Points III and IV, defendant maintains the State failed to prove that he

intended to steal the son's phone when defendant entered the son's bedroom. He

argues the judge therefore erred by denying defendant's motion for acquittal

after the State rested. And he adds, for the first time, 2 that the judge failed to

instruct the jury that defendant must have formed the intent to commit a theft




2
    We consider this argument for plain error. R. 2:10-2.
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                                       10
before any "intimidating conduct occurred." The judge correctly denied the

Reyes3 motion and properly charged the jury on robbery.

      N.J.S.A. 2C:15-1 sets forth the elements of robbery and the gradation of

the offense. A "person is guilty of robbery if, in the course of committing a

theft," that individual:

             (1) Inflicts bodily injury or uses force upon another; or

             (2) Threatens another with or purposely puts him in fear
             of immediate bodily injury; or

             (3) Commits or threatens immediately to commit any
             crime of the first or second degree.

             An act shall be deemed to be included in the phrase "in
             the course of committing a theft" if it occurs in an
             attempt to commit theft or in immediate flight after the
             attempt or commission.

             [N.J.S.A. 2C:15-1(a).]

Robbery is a crime of the first degree if "in the course of committing the

theft, . . . the actor is armed with, or uses or threatens the immediate use of a

deadly weapon." N.J.S.A. 2C:15-1(b). Relevant to this case, "the intention to

steal must precede or be coterminous with the use of force." State v. Lopez,

187 N.J. 91, 101 (2006).


3
 State v. Reyes, 50 N.J. 454 (1967) (setting forth the test for adjudicating a
motion for judgment of acquittal).
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      The State introduced evidence that defendant's intent to steal the phone

was coterminous with defendant putting the son in fear of immediate bodily

injury. The son heard defendant going to the bedroom door, and although the

son tried to barricade it, defendant broke the door down. The son then observed

defendant holding two items: a twelve-inch knife with the blade pointing up,

and a bottle of wine. Defendant demanded the son's phone and told the victim's

mother, "[O]nce I go after [the victim], I'm going for you next." Defendant fled

with the phone and ran from the police.

      Our review of a motion for a judgment of acquittal under Rule 3:18-2 is

de novo. State v. Lodzinski, ___ N.J. ___ (2021) (slip op. at 40). Defendant's

motive for entering the house may have been to target the victim. But, looking

at the evidence as we must in the State's favor, defendant formed the intent to

steal the son's phone once he barged through the barricaded door and demanded

the phone with a knife in hand. And he threatened bodily injury while holding

the knife and instilling fear by saying on the phone, "I'm going for you next."

      We see no plain error as to the robbery charge. Indeed, when asked

whether there where any concerns about the robbery charge, defense counsel

said, "No." Defendant now argues the charge was flawed because the judge did

not instruct the jury that defendant "must have formed the intent to commit a


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theft before any intimidating conduct occurred" and the purpose of putting the

son in fear of immediate bodily injury "was to coerce [the son] into relinquishing

the phone." Looking at the charge as a whole, and considering the timing of the

use of force by holding a raised knife while demanding the phone, we conclude

the charge as given was not clearly capable of producing an unjust result.

      As part of the robbery charge, the jury asked for the meaning of "with

purpose." In responding to the question, the judge and counsel agreed that the

judge would re-read the definition of "purposely" in the robbery charge. The

judge stated that the State must prove defendant, "while in the course of

committing the theft," threatened the son, or it was his conscious object to put

the son in fear of immediate bodily injury. This part of the model jury charge

was given a second time.        The threatening conduct and the theft were

coterminous. There was no error.

                                       IV.

      Defendant challenges for the first time the final charge on burglary. He

contends that the judge failed to instruct the jury that it must unanimously decide

which specific unlawful act defendant intended to commit when he broke into

the mother's house. But unanimity is not required as to the specific offense




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defendant intended to commit; only that he intended to commit an unlawful

offense.

      Here, there was no ambiguity surrounding defendant's purpose for

entering the structure. The evidence did not suggest both criminal and non -

criminal purposes for entry. Along those lines, the judge instructed the jury that

the "[p]urpose to commit an offense inside means that . . . defendant intended to

commit an unlawful act inside the structure."      The State alleged defendant

intended to commit stalking, criminal mischief, and/or theft inside the structure.

The parties never introduced evidence that defendant entered the structure for

any other purpose. The record demonstrates that defendant had no non-criminal

purpose for entering.

      As to the obligation to charge unanimity on the purpose for entering the

structure, we explained:

            where the circumstances surrounding the unlawful
            entry do not give rise to any ambiguity or uncertainty
            as to a defendant's purpose in entering a structure
            without privilege to do so [and] lead inevitably and
            reasonably to the conclusion that some unlawful act is
            intended to be committed inside the structure, then
            specific instructions delineating the precise unlawful
            acts intended are unnecessary.

            [State v. Robinson, 289 N.J. Super. 447, 458 (App. Div.
            1996).]


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                                       14
"[I]f the facts presented in evidence were such that [the] defendant's purpose in

entering was unclear and therefore reasonably capable of two interpretations,

one criminal and one non-criminal," then the judge must identify the specific

offense. See id. at 457. Thus, under the facts here, the judge had no obligation

to consider charging the jury that it must agree on which unlawful act defendant

intended to commit inside the structure. Consequently, we see no error, let alone

plain error, that is clearly capable of producing an unjust result.

                                         V.

         Finally, defendant requests that we remand for re-sentencing, arguing that

he should receive a lower sentence with mitigating factor four considered. But

the record shows that the judge properly weighed the applicable factors and

imposed a lower sentence than requested by the State. The judge considered

defense counsel's reliance on defendant's emotional, social, and educational

challenges. The judge's findings included consideration of defendant's "young

life."

         The scope of our review of sentencing determinations is narrow and those

decisions are examined under a highly deferential standard. See State v. Roth,

95 N.J. 334, 364-65 (1984) (holding that an appellate court may not overturn a

sentence unless "the application of the guidelines to the facts of [the] case makes


                                                                             A-4132-18
                                         15
the sentence clearly unreasonable so as to shock the judicial conscience"). Our

review is limited to considering:

            (1) whether guidelines for sentencing established by the
            Legislature or by the courts were violated; (2) whether
            the aggravating and mitigating factors found by the
            sentencing [judge] were based on competent credible
            evidence in the record; and (3) whether the sentence
            was nevertheless "clearly unreasonable so as to shock
            the judicial conscience."

            [State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
            v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
            2011)).]

"[A]ppellate courts are cautioned not to substitute their judgment for those of

our sentencing [judges]." State v. Case, 220 N.J. 49, 65 (2014). A trial judge's

exercise of discretion in accordance with sentencing principles "should be

immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).

Sentencing decisions are based on a qualitative rather than quantitative

analytical process. State v. L.V., 410 N.J. Super. 90, 108 (App. Div. 2009)

(citing State v. Kruse, 105 N.J. 354, 363 (1987)); see also State v. Denmon,

347 N.J. Super. 457, 467-68 (App. Div. 2002) (stating "[o]ur sentencing statute

contemplates[, like here,] a thoughtful weighing of the aggravating and

mitigating factors, not a mere counting of one against the other”). We will not

second guess the judge's findings, which reflect a qualitative analysis.


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Affirmed.




                 A-4132-18
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