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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE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-5117-10T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOVONE L. GORDON,
Defendant-Appellant.
November 2, 2012
Submitted May 9, 2012 - Decided
Before Judges Lihotz and St. John.
On  appeal  from  Superior  Court  of  New  Jersey,  Law  Division,  Salem County,
Indictment No. 09-09-0508.
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Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner,
Assistant Deputy Public Defender, of counsel and on the briefs).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G.
Waterston, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Jovone L. Gordon appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A.
2C:15-1, and third-degree theft, N.J.S.A. 2C:20-3. The trial judge sentenced defendant to fifteen years of
imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, for the robbery and a concurrent term of four years for the theft. The judge
charged the jury instructing them on the elements of first-degree and second-degree robbery. The jury
convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On
appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were
trial errors warranting reversal.
We conclude the State's evidence was insufficient to sustain a conviction for first-degree robbery and
the court erred in denying defendant's motion at the conclusion of the State's case. We reverse and remand
for the entry of a judgment of acquittal for the first-degree armed robbery conviction and amendment of
the judgment of conviction to reflect the conviction of second-degree robbery. We also remand for
sentencing.1
I.
The trial record reveals that on April 24, 2009, defendant entered the Harvest Community Bank in
Pennsville and asked the bank manager about opening an account. The manager referred him to Sherry
Weiss, the head teller. Defendant asked Weiss about obtaining a mortgage, but then acknowledged that he
did not have any identification and proceeded to leave. However, he walked over to another teller, Ann
Gladhill, told her he had a gun, and ordered her to give him money.
Donna Joe Bunting was working at the drive through window when defendant approached Gladhill. She
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heard defendant tell Gladhill he had a gun and watched as Gladhill put cash into a bag. Gladhill asked
Bunting for additional money and she turned over large bills to defendant. Both Bunting and Gladhill
included "bait money" in the bag they turned over to defendant. The "bait money" included several twenty
dollar bills, the serial numbers of which were prerecorded and kept in the bank. A security camera recorded
defendant in the bank, but did not show the interaction between defendant and Gladhill.
At the same time, an off duty police officer was in the banking lot and noticed a dark Crown Victoria. He
became suspicious when he noticed one man in the driver's seat and another man in the back seat. He
became more concerned when the car left at a high rate of speed. He followed the car for a short time and
wrote down the license plate number. When he returned to the bank parking lot, he realized that a robbery
had taken place and he related what he had seen to detectives on the scene. The registration for the car
belonged to Kareem Sashier from Chester, Pennsylvania. The Chester police were notified and an officer
was sent to look for the car. The officer found the car parked near the address given for Sashier, waited
about ten minutes, and saw an African-American male enter the car and drive away. The officer pulled the
car over and arrested the driver who was defendant. A cell phone and a large amount of cash were seized.
Some of the "bait money" was among the bills seized.
Ultimately, defendant admitted to committing the robbery. He even wrote out an apology to the
bank employees. However, when defendant testified on his own behalf at trial, he denied most of the
State's case, including his confession. Defendant stated that his father gave him $1000 to pay for car
insurance and to retrieve his car which had been impounded. He also stated that an acquaintance, Otis
Bullock, gave him a roll of cash to give to Sashier. That was his explanation for the "bait money" found in
his possession.
At the conclusion of the State's case, defense counsel moved to dismiss the case for lack of evidence. While
counsel did not specifically mention the grading of the offense, a motion had apparently been made before
trial to dismiss part of the first-degree crime for lack of evidence. The trial judge determined that there was
sufficient proofs to go to the jury on that issue and denied the motion.
Gladhill testified that defendant "stated that he had a gun and that he wanted all my money." The
prosecutor then sought to elicit testimony concerning the gun and asked the following questions:
Q. Did you ever see him with a gun?
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A. No.
Q.  Did  he  ever brandish,  make  some object,  or make  some gesture as if he
actually had a gun?
A. No, I just -
Q. He just said he had a gun?
A. Yes.
Defendant was convicted of first-degree robbery and third-degree theft. This appeal ensued.
II.
Defendant raises the following issues for our consideration on appeal:
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS AT THE END
OF  THE  STATE'S  CASE  AND  BY  RULING  THAT  A  MERE  THREAT  OF  A GUN
ELEVATED THE CRIME TO FIRST-DEGREE ROBBERY.
POINT II
THE   PROSECUTOR   ERRED   IN   HIS   SUMMATION   BY   SUGGESTING  THE
DEFENDANT HAD A BURDEN OF PROOF TO PRESENT WITNESSES. THIS ERROR,
OBJECTED TO BY DEFENSE COUNSEL, WAS NOT CURED BY THE TRIAL JUDGE,
RESULTING IN AN UNFAIR TRIAL AND DENIAL OF DUE PROCESS.
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
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III.
We first address our standard of review. When considering a defendant's motion denying acquittal,
we apply the Reyes standard and review only the state proofs to determine:
whether, viewing  the  .  .  . evidence  in its  entirety, be  that  evidence  direct or
circumstantial, and giving the State the benefit of all its favorable testimony   as
well  as  all  of  the  favorable  inferences  which  reasonably  could  be drawn
therefrom, a reasonable jury could find guilt of the    charge    beyond    a reasonable
doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
See also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2013). We review the
decision of the trial judge de novo, applying the Reyes standard to evaluate the motion for acquittal. State
v. Bunch, 180 N.J. 534, 548-49 (2004). See also Pressler & Verniero, supra, comment 5 on R. 3:18-1.
IV.
Prior to reviewing defendant's challenge, we review the elements of the offense for which he was
charged. Robbery is a crime of the second-degree, but it is elevated to  a  first -degree  crime  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). The definition of a "deadly weapon" includes simulation of a deadly
weapon, enabling a defendant's conviction for first-degree armed robbery to be based on simulation of the
possession of a deadly weapon. Indeed, "deadly weapon" is defined as
any . . . weapon, device, instrument, material or substance, whether animate or
inanimate, which in the manner it is used or intended to be used, is known to be
capable of producing death or serious bodily injury or which in the    manner    it is
fashioned  would  lead  the  victim  reasonably  to  believe  it  to  be capable  of
producing death or serious bodily injury[.]
[N.J.S.A. 2C:11-1(c).]
In the context of simulation, the definition of "deadly weapon" in N.J.S.A. 2C:11-1(c) has been read
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to require that there be either an object that clearly simulates a weapon or a combination of words and
gestures that "complete the impression of a concealed weapon . . .                                               ." State v. Chapland, 187 N.J. 275, 292
(2006). It is important to note that our Supreme Court did not expressly limit the statutory interpretation to
these two alternatives.2 However, the Court stated that "[a] threat or reference to a deadly weapon alone
is not enough." State v. Hutson, 107 N.J. 222, 227 (1987).
In this matter, defendant argues the nature of the threat to the bank teller was insufficient to
convict him of armed robbery by simulation and the trial judge erred in denying his motion for acquittal. In
commenting on the State's evidence, the trial judge concluded "there [were] sufficient proofs to go to the
jury" to determine "whether a reasonable person would have believed there was a weapon based on the
conduct of the perpetrator." We do not disagree with this construct of law, we disagree with the trial
judge's determination that the State met its burden of proof as Gladhill related no observations of
defendant's conduct and the video evidence captured no gestures suggesting defendant had a gun. On this
record, it is unrefuted that defendant did nothing other than state the existence of a gun.
In State v. LaFrance, 224 N.J. Super. 364 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583
(1990), we affirmed a conviction for first-degree robbery concluding the defendant's conduct satisfied the
statute where the defendant stated he had a gun, positioned his hand inside his coat so it appeared to be a
gun, and threaten to blow his victims' brains out. Id. at 368, 372-73. In State v. Huff, 292 N.J. Super. 185
(App. Div.), certif. denied, 146 N.J. 570 (1996), aff'd, 148 N.J. 78 (1997), we likewise affirmed a conviction
for armed robbery in a case where the defendant told his victim that he had a gun and patted the waistline
under his coat to indicate where the gun was allegedly concealed. Id. at 190-91. Despite the fact that
defendant did not simulate a gun, we found significant the fact that "the victim testified and indicated by
physical demonstration what defendant did when he said he had a gun and asked for the money." Id. at
191 (emphasis in original). LaFrance and Huff inform us that simulating the appearance of a weapon or
gesturing to a location where it would be reasonable to believe the identified weapon was concealed, when
combined with a threat, are sufficient circumstances to establish first-degree robbery by simulation.
The importance of an accompanying gesture was made apparent in Chapland. According to the
defendant's account of the facts in Chapland, while struggling with the victim for her pocketbook, he drew
his hand behind his back as though he were reaching for a weapon and yelled, "Give me your pocketbook,
bitch." Supra, 187 N.J. at 291-92. A jury convicted the defendant of first-degree robbery but defendant
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appealed his conviction asserting that the trial court's instruction to the jury, that if it found that defendant
had simulated the possession of a knife, it could find him guilty of first-degree robbery, was error. Id. 281-
83. Our Supreme Court disagreed holding that even though the defendant may not have actually had a
weapon, the gesture, which was indicative of both possession and imminent use of a weapon, was sufficient
to meet the Hutson requirement that there be more than words. Chapland, supra, 187 N.J. at 291-92. The
facts of Chapland indicate that a gesture is crucial, at least in circumstances where the defendant does not
specify that he or she has a weapon. The question in this case, however, is what conduct is required to
accompany words when the defendant explicitly references a gun.
Here, there is no testimonial or video evidence that defendant made a gesture, such as a gesture
akin to pointing a fake gun in LaFrance or rapidly reaching for a nonexistent weapon in Chapland; or a
gesture that he had a gun, similar to patting one's body, as in Huff. In fact, as we noted, there was no
evidence, whether in the form of testimony or video, that defendant made any inculpatory gesture at all.
The facts here are analogous to Hutson, in which there was no gesture accompanying the announcement
that perpetrator had a gun. Supra, 107 N.J. at 228 ("what is missing in this record is the link between the
threat and the object viewed by the victim").
Consequently, the trial judge erred in determining defendant's threat of a gun unaccompanied by a
gesture was sufficient to establish robbery by simulation. The threat to use a deadly weapon must be
accompanied by some conduct evincing the existence of that weapon.3 Defendant's conviction and sentence
for first-degree robbery is therefore vacated. However, because the trial judge used interrogatories, it is
clear the jury found defendant guilty of conduct that, "in the course of committing a theft did purposely
threaten another with or put her in fear of immediate bodily injury," satisfying the elements of conviction of
second-degree robbery. Thus, the judgment is amended to reflect defendant's conviction for second-degree
robbery.
V.
Defendant also argues that a comment made by the prosecutor in his summation resulted in an
unfair trial and a denial of due process. Defendant testified that his father gave him $1000 to pay his
insurance and to retrieve his car which had been impounded. He also stated he had received a small roll of
money from Otis Bullock. As part of defendant's testimony, he told the jury his father was having surgery
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that day and could not attend the trial.
In summation, the prosecutor stated:
Mr.  Gordon  took  the  stand  and  told  his  story  that  you've  got  to  ask
yourself, does it make sense. Yes, I executed -- I happen to have all this money
on me. Why? Well, because my dad gave me a thousand dollars this morning,
earlier that morning something about my car was impounded and I needed that.
It was interesting because we heard all this testimony about what a poor, crime
ridden neighborhood  it  is and  what a coincidence that  in a   poor,  crime   ridden
neighborhood  daddy  just  happens  to  give  him  a  $1,000  that  he  has  floating
around, you know, to get his car -- car out. And of course dad didn't testify but,
you know -- and there's no corroboration of that but that was his story.
Defense counsel did not immediately object. Upon completion of the prosecutor's summation, the judge
instructed the jurors to take their lunch break. After the jury left the court room, the judge inquired of the
parties whether they wanted to address anything before the lunch break. Defense counsel responded, "Yes,
Your Honor. If I heard Mr. Waterston in his closing say that Mr. Gordon didn't corroborate where he got his
money from; is that Mr. Gordon's burden to corroborate where he got money from?" Both parties agreed it
was not defendant's burden and the judge commented, "It might not be his burden but he did put that into
the case and I think it’s fair comment for the State to say there is no corroborating evidence." Defense
counsel responded, "Okay."
Our Supreme Court addressed the use of a jury instruction permitting a negative inference upon a
finding that a defendant failed to present available witnesses whose testimony would be reasonably
expected to support his or her version of the facts. See State v. Clawans, 38 N.J. 162, 170-72 (1962).
However, in State v. Alonzo Hill, the Court generally disapproved the use of Clawans instructions against
defendants in criminal cases. State v. Alonzo Hill, 199 N.J. 545, 565-67, 566 n.8 (2009).4 Nonetheless, the
Court noted, "we recognize that not all summation comment on a defendant's failure to produce a witness
would produce the impermissible effect of lessening the State's burden of proof." Hill, supra, 199 N.J. at
569 n. 9. This is such a case.
On the basis of the differences between the jury instruction given in Hill and the comment made by
the prosecutor in this case, and weighing the relative strength of the evidence presented in both cases, we
distinguish Hill and conclude that the error in this case is harmless. We accept the longstanding principle
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that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. R.B., 183 N.J. 308, 334 (2005)
(quoting Lutwak v. United States, 344 U.S 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 604 (1953)).
Defendant also argues that the trial judge should have given a curative instruction after the
offending remark was made by the prosecutor. In this case, the stray remark did not prevent defendant
from establishing a defense on the merits. See State v. Witte, 13 N.J. 598, 612 (1953), cert. denied, 347
U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Therefore, in light of the comment's fleeting nature, the
ability of the trial judge to gauge the statement's effect on the jury, and the strength of the State's case,
the omitted curative instruction was not so unduly prejudicial as to have denied defendant a fair trial and
we find no basis for reversal. See State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.), certif. denied, 109
N.J. 54 (1987).
T
he judgment of conviction and sentence for first-degree robbery is vacated; however, the judgment is
amended to reflect defendant's conviction for second-degree robbery. The case is remanded to the Law
Division for sentencing.
1 We recognize that defendant did not move for a new trial and note that Rule 2:10-1 suggests defendant
will be unable to challenge the sufficiency of evidence on appeal. However, because the error in defendant's
case is of a constitutional dimension affecting his liberty interest, in the interest of justice we will analyze
the merits of his challenge. See State v. Smith, 262 N.J. Super 487, 511 (App. Div.), certif. denied, 134 N.J.
476 (1993).
2 "An unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal
gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a
sufficient factual basis for conviction of first-degree robbery." Chapland, supra, 187 N.J. at 292 (emphasis
added).
3 "The simulated weapon robbery instruction requires that a defendant engage in 'an unequivocal or
unambiguous simulation of a weapon [or] of a concealed weapon, or by an equivocal or ambiguous gesture
coupled with threatening words that completes the victim's impression of a deadly weapon.'" State v. Nero,
195 N.J. 397, 412 (2008) (emphasis added).
4 Indicating that the Court had not addressed the issue previously but recognizing that this court had
previously held that "use of a Clawans charge against a defendant in a criminal trial" was not error in a
case involving an alibi defense and citing State v. Gonzalez, 318 N.J. Super. 527, 529 (App. Div.), certif.
denied, 161 N.J. 148 (1999), a case in which this court rejected the argument without discussion and
reversed on other grounds. Alonzo Hill, supra, 199 N.J. at 565-67.
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