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N.J.S.A. 2C:20-3a, if he were an adult. Because the State's evidence was inadequate to establish beyond a reasonable doubt that R.B. took ten dollars from his mother's car, as alleged in the juvenile delinquency complaint she filed, we reverse."> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) The status of this decision is unpublished

Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0869-06T40869-06T4 STATE OF NEW JERSEY IN THE INTEREST OF R.B., Juvenile-Appellant. ________________________________

Submitted December 18, 2007 - Decided Before Judges Grall and Chambers. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FJ-21-413-06. Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief). Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).

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PER CURIAM R.B. appeals from an adjudication of delinquency based on a finding that he engaged in conduct that would constitute theft of movable property, N.J.S.A. 2C:20-3a, if he were an adult. Because the State's evidence was inadequate to establish beyond a reasonable doubt that R.B. took ten dollars from his mother's car, as alleged in the juvenile delinquency complaint she filed, we reverse. The State presented no evidence at trial other than the testimony of R.B.'s mother, P.B. According to P.B., on the morning of April 5, 2006, she went to the grocery store, where she purchased coffee and a newspaper. She paid with a debit card and withdrew an additional twenty dollars in cash from her account. She went to work that day and purchased five dollars worth of gas. The gas station attendant gave her change, a five-dollar and ten-dollar bill, which she placed in the "cup holder" of her car, where she already had two or three one dollar bills. The attendant who put the gas in P.B.'s car neglected to replace the gas cap. Later that day P.B. picked R.B. up and drove him home. She parked the car in the driveway about one- hundred feet from the house and asked R.B. to go to the gas station to get her gas cap and put it in place. He agreed. P.B. gave R.B. her car keys "so that he could unlock the gas cap from the car and put the gas cap back on the gas tank." She knew that he had to enter the car to accomplish the task, and she did not give him permission to take money from her car. When R.B. returned to the house after retrieving and replacing the gas cap, he gave his mother her car keys. When she went to the car the next morning, P.B. noticed that the ten-dollar bill was missing. She could not say whether her car door was locked or unlocked when she went to use it that day. She explained that her car has a keyless lock. The car's horn sounds as the door lock is activated, but there is no sound made when the remote is used to unlock the door. She did not hear the horn sound while R.B. was outside. P.B. gave no testimony about whether she kept her car locked on the day the money was taken between the time that she put the money in the car and her return home. She did not testify that the money was in the car when she returned home. She knew she had not given anyone else permission to use her car that day and was not aware of anyone other than R.B. entering the car. R.B testified. He acknowledged that he retrieved and installed his mother's gas cap at her request but denied taking any money from the car. He locked the car doors when he was finished replacing the cap. Although defense counsel did not move to dismiss the delinquency complaint at the close of the State's case, he argued that the State's evidence was not adequate to prove beyond a reasonable doubt that R.B. took the

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ten-dollar bill. Considering the testimony of R.B.'s mother and R.B.'s testimony about locking the car door, the judge concluded that the State established the elements of theft of movable property beyond a reasonable doubt. On appeal R.B. contends that the State's evidence is inadequate to support the adjudication of delinquency. We agree. The State's evidence is sufficient to support a criminal conviction or adjudication of delinquency only if that evidence, viewed in the light most favorable to the State and with the benefit of all reasonable inferences, is sufficient to permit a finding of each element of the alleged crime beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967) (conviction); State in Interest of R.B., 200 N.J. Super. 573, 578 (App. Div. 1985) (adjudication of delinquency); see In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed.2d 368, 374 (1970). Whether considered at the close of the State's evidence or after the defense rests, the court may not consider evidence adduced by the defense in determining whether the State has met its burden of proof. State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975); see State v. Samuels, 189 N.J. 236, 245 (2007). In this case, the State's evidence and the reasonable inferences from that evidence were clearly inadequate to permit the court to find, beyond a reasonable doubt, that R.B. took the ten-dollar bill. P.B. testified to placing the ten-dollar bill in the car's cup holder in the morning. She gave no information about the location of the ten-dollar bill from that point in time until the following morning when she noticed that the money was missing. She also gave no information about the location of the car or whether its doors were locked between the time she left the money in the car and the time that she noticed that it was gone. This evidence, viewed most favorably to the State, gives rise to no more than a reasonable suspicion that R.B. took the money; it falls far short of proof adequate to establish a theft by R.B. beyond a reasonable doubt. Accordingly, we reverse and vacate the adjudication of delinquency as unsupported by adequate evidence. Because we conclude that the evidence is inadequate to support the adjudication, there is no need to consider the additional issues R.B. raises on appeal. Reversed.

Although the point heading misstates the issue as a claim that the verdict is "against the weight of the evidence," R.B. relies on State v. Reyes, 50 N.J. 454, 458-59 (1967), which our courts apply in determining whether the State's evidence is adequate to support an adjudication of delinquency. State in Interest of R.B., 200 N.J. Super. 573, 578 (App. Div. 1985). P.B. also testified about items that had been taken from her home prior to this incident. To the extent that this evidence was offered as relevant to establish R.B.'s conduct on the day in question, it was not admissible for that purpose. See N.J.R.E. 404(b); State v. Cofield, 127 N.J. 328, 338 (1992).

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(continued) (continued) 6 A-0869-06T4 RECORD IMPOUNDED January 2, 2008 0x01 graphic

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