STATE OF NEW JERSEY VS. LEONARD K. COLEMAN (17-04-0500, MIDDLESEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-4665-17

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LEONARD K. COLEMAN,

     Defendant-Appellant.
_______________________

                   Argued October 21, 2020 – Decided February 16, 2021

                   Before Judges Fuentes, Whipple, and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 17-04-
                   0500.

                   George A. LoBiondo, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; George A. LoBiondo, on the
                   briefs).

                   Nancy A. Hulett, Assistant Prosecutor, argued the cause
                   for respondent (Yolanda Ciccone, Middlesex County
                   Prosecutor, attorney; Nancy A. Hulett, of counsel and
                   on the brief).
PER CURIAM

      A jury convicted defendant Leonard K. Coleman of unlawful possession

of a weapon and receiving stolen property for possessing a loaded handgun in a

stolen car. On appeal, defendant challenges the trial judge's decision, admitting

certain evidence under N.J.R.E. 404(b) that the judge thereafter excluded from

the jury's consideration. For the first time on appeal, defendant claims other

trial errors warrant reversal of his convictions. We affirm.

                                       I.

      Around 4:20 a.m. on January 12, 2015, two officers of the New Brunswick

Police Department (NBPD) approached a Dodge Neon parked in a residential

driveway on Lawrence Street following a report that the car had been stolen.

J.S. (John)1 was seated behind the steering wheel; defendant was seated next to

him. The plastic encasing the car's steering wheel column was damaged, and

the ignition had been "punched out," enabling the car to start without a key.

John tried to run but was apprehended before he could flee; defendant was

removed from the car and arrested.




1
   We use initials to protect the identity of the juvenile defendant, R. 1:38-
3(c)(9), and a pseudonym for ease of reference.
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                                       2
      Officers recovered a flathead screwdriver in defendant's pocket during a

search incident to his arrest, and a .380 caliber handgun on the floor behind the

driver's seat. Four bullets were loaded in the gun's magazine and one bullet was

loaded in its chamber.

      John testified at trial pursuant to a cooperating agreement with the

prosecution.2 He told the jury defendant picked him up in the Dodge Neon and

they drove to New Brunswick to "see some girls." Upon arriving in New

Brunswick, defendant pulled into a driveway to use his cellphone and asked John

whether he wanted to drive the car. John stated he "hopped in the driver seat"

and "was about to start the car" but "noticed that the car was punched," and

defendant "had the screwdriver." About that time, a police vehicle passed by.

Defendant and John "ducked down," and defendant told John "a gun was in the

car." John saw "the silver part of the gun" in defendant's "lap area."




2
   John was charged in a juvenile complaint with acts of delinquency that if
committed by an adult would constitute unlawful possession of a weapon and
receiving stolen property. John testified at trial that he pled guilty as charged in
the Family Part, and the judge imposed a two-year suspended sentence, a thirty-
eight-month probationary term conditioned upon completion of a drug program,
an additional two years of regular probation, and twelve months of juvenile
intensive supervision (JISP). John's charging document, cooperating plea
agreement, and adjudication order were not provided on appeal.
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                                         3
      While at the scene, defendant told the officers: "You already caught me.

It is what it is. Caught in plain sight. Like you said." Defendant's admissions

were captured on the dashboard camera installed on the officers' vehicle (MVR

video).

      At the time of his arrest, defendant was wearing several layers of clothing.

During processing at the station, defendant complied with an officer's request to

remove his shoes and outer-layer pants, but refused to remove the sweatpants he

was wearing underneath those pants, even after a sergeant told defendant the

stationhouse policy limited detainees to one layer of clothing. When an officer

attempted to place him in handcuffs, defendant brought his arms behind his back

and pressed himself against a corner partition of the booking area. In response,

an officer grabbed defendant by his hair and "pulled him to the floor." Following

"a brief struggle," officers handcuffed defendant.       Four officers forcibly

removed defendant's sweatpants, searched the gym shorts he was wearing

underneath his sweatpants, and recovered various counterfeit bills from the

pocket in his gym shorts.     The station's surveillance camera recorded the

booking area incident (booking video).

      During the multi-day jury trial, in addition to John's testimony, the State

presented the testimony of the owner of the Dodge Neon, and several law


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                                         4
enforcement officers, including a firearms expert. The State also introduced in

evidence the handgun and ammunition; screwdriver; counterfeit currency;

booking video, capturing the seizure of counterfeit currency; and MVR video,

containing defendant's admissions. 3

      Pertinent to this appeal, the counterfeit currency and booking video were

admitted in evidence and displayed to the jury during trial, after the judge denied

defendant's motion to bar evidence of the counterfeit currency under N.J.R.E.

404(b). For the reasons that follow, the counterfeit currency and booking video

were removed from the jury's consideration at the close of all evidence.

      After the State rested, defendant moved to dismiss the Middlesex County

indictment that charged him with second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5 (count one); third-degree receiving stolen property,

N.J.S.A.   2C:20-7(a)    (count    two);       and   fourth-degree   obstructing   the

administration of justice, N.J.S.A. 2C:29-1(a) (count three). The judge denied

defendant's motion as to counts one and two, but reserved decision on count

three until the close of all evidence.



3
  The trial judge denied defendant's pretrial motion to suppress his statements,
finding defendant voluntarily uttered the statements, but granted defendant's
motion to redact his sarcastic and vulgar remarks from the MVR video.
Defendant does not challenge the judge's decision on appeal.
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                                           5
      Because defendant did not testify or present any evidence, the judge

rendered his decision shortly thereafter, declining to dismiss the obstruction

charge but instead downgrading it to a disorderly persons offense for the court's

consideration after the jury's verdict on the remaining counts. During the final

charge that followed, the judge instructed the jury to disregard "any evidence"

regarding the obstruction charge.

      The jury convicted defendant on counts one and two. After the jury was

discharged, the judge considered the evidence adduced at trial and found

defendant guilty of the downgraded obstruction charge, and possession of

burglar tools, N.J.S.A. 2C:5-5(a), a disorderly persons offense that was charged

by complaint-summons. Thereafter, the judge imposed an aggregate prison

sentence of five years, with forty-two months of parole ineligibility pursuant to

the Graves Act, N.J.S.A. 2C: 43-6.2. This appeal followed.

      On appeal, defendant raises the following overlapping points for our

consideration:

                                    POINT I

            THE TRIAL COURT ERRED IN ALLOWING THE
            STATE TO INTRODUCE IRRELEVANT AND
            HIGHLY PREJUDICIAL "OTHER      CRIMES"
            EVIDENCE     REGARDING      ALLEGEDLY
            COUNTERFEIT BILLS.


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                                       6
              A. Legal Standard.

              B. The Trial Court Erred in Applying the Cofield [4]
              Test.

              C. The Trial Court's Error Was Not Harmless.

                                     POINT II

              THE TRIAL COURT ERRED IN ALLOWING THE
              STATE TO INTRODUCE IRRELEVANT AND
              HIGHLY PREJUDICIAL "OTHER      CRIMES"
              EVIDENCE RELATING TO THE BOOKING VIDEO.
              (Not raised below)

              A. The Obstruction Count Was Legally Deficient.

              B. The Evidence Fails the Cofield Test, Which the Trial
              Court Failed to Administer.

                                    POINT III

              THE TRIAL COURT'S INSTRUCTIONS TO THE
              JURY WERE MATERIALLY FLAWED AND
              INCOMPLETE.
              (Not raised below)

              A. Regarding the Counterfeit Bill Evidence, the Trial
              Court Failed to Give the "Essential" Propensity
              Instruction.

              B. Regarding the Booking Evidence, the Trial Court
              Failed to Identify the Evidence [the Jury] Was
              Supposed to Disregard.



4
    State v. Cofield, 

127 N.J. 328

(1992).
                                                                        A-4665-17
                                         7
                                  POINT IV

            THE CUMULATIVE EFFECT OF THESE ERRORS
            DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
            (Not raised below)

            A. The Legal Standard.

            B. The Cumulative Error Prejudiced [Defendant].

            C. The Cumulative Error Was Not Harmless.

                                       II.

      The crux of defendant's arguments on appeal is that the judge's initial

admission of evidence pertaining to the fourth-degree obstruction charge unduly

influenced the jury to convict defendant of the remaining charges on the basis

of propensity evidence – even though the obstruction charge ultimately was

downgraded and the judge instructed the jury not to consider any evidence

pertaining to that charge. For the first time on appeal, defendant asserts the

obstruction charge as indicted "was legally deficient from the outset."

Defendant also belatedly challenges the judge's limiting instruction when the

counterfeit currency was published to the jury and the adequacy of the judge's

final charge regarding the obstruction charge.




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                                       8
      Notwithstanding the judge's ultimate downgrading of the obstruction

charge, defendant maintains the judge erred in denying defendant's pretrial

motion to bar evidence of the counterfeit currency under N.J.R.E. 404(b).

Defendant urges us to conduct a de novo review of the judge's findings under

State v. Cofield. Defendant did not seek to preclude admission of the booking

video on any grounds, but now seemingly suggests the judge sua sponte failed

to consider the video as other crime evidence under Rule 404(b).

                                        A.

      We begin our review of defendant's interrelated claims with his belated

argument that the fourth-degree obstruction charge was legally flawed as

indicted.   Under N.J.S.A. 2C:29-1(a), a person commits the offense of

obstructing administration of law or other governmental function where

            he purposely obstructs, impairs or perverts the
            administration of law or other governmental function or
            prevents or attempts to prevent a public servant from
            lawfully performing an official function by means of
            . . . force, violence, or physical interference or obstacle
            ....

      Relevant here, obstructing "the detection or investigation of a crime or the

prosecution of a person for a crime" elevates the grading of the charge from a

disorderly persons offense to a fourth-degree crime. N.J.S.A. 2C:29-1(b). To

establish a violation of subsection (b) in this case, the State needed to

                                                                            A-4665-17
                                        9
demonstrate defendant purposefully obstructed the detection or investigation of

a crime, as opposed to less serious violations of law. See Model Jury Charges

(Criminal), "Obstructing Administration of Law or Other Governmental

Function (N.J.S.A. 2C:29-1)" (approved Oct. 23, 2000).

      Although our state's criminal code does not specifically criminalize

possession of counterfeit currency, the federal code proscribes that con duct

when the individual possesses the counterfeit bill "knowingly and with intent to

defraud." See 18 USCS § 480. Accordingly, we reject defendant's belated

challenge to the legal sufficiency of the fourth-degree obstruction charge here,

where defendant's actions obstructed the detection of counterfeit currency

secreted in his shorts, notwithstanding the State's failure to adduce evidence

proving the possession of counterfeit currency or related crime beyond a

reasonable doubt at trial. Notably, defendant did not move pretrial to: dismiss

the obstruction charge, see State v. W.S.B., 

453 N.J. Super. 206

, 232 (App. Div.

2018); sever that count from the indictment, R. 3:15-2(b); or demand a bill of

particulars, R. 3:7-5.

                                      B.

      We turn to defendant's argument that the counterfeit currency should have

been precluded under N.J.R.E. 404(b).      In a brief oral decision, the judge


                                                                          A-4665-17
                                      10
initially denied the motion, finding the evidence was relevant to defendant's

reason for refusing the officers' requests to remove his pants.          Defendant

immediately moved for reconsideration. The following day before the jury was

sworn, the judge reconsidered his decision, amplified his findings under the

four-prong test enunciated by the Court in Cofield,5 and issued a decision from

the bench, finding the State satisfied the first, second and fourth factors.

      In sum, the trial judge concluded the counterfeit currency was relevant to

defendant's motive for refusing to follow the officers' orders to remove his pants;

the event occurred "right at the time of [defendant's] arrest"; and the probative

value was "essential to the issue of motive," thereby implicitly finding the

probative value outweighed the prejudice to defendant. The judge reserved

decision as to whether the State proved the currency was counterfeit by clear

and convincing evidence pending the testimony of an NBPD officer adduced at

the ensuing N.J.R.E. 104 hearing. The judge thereafter determined the State


5
   The Court in Cofield held evidence of other crimes or wrongs is admissible if
it is: (1) "relevant to a material issue"; (2) "similar in kind and reasonably close
in time to the offense charged"; and (3) established by "clear and convincing"

evidence. 127 N.J. at 339

. Under the fourth prong, "the probative value of the
evidence must not be outweighed by its apparent prejudice."

Ibid. The Court has

also explained that the similarity requirement under the second prong "need
not receive universal application in Rule 404(b) disputes." State v. Williams,

190 N.J. 114

, 131 (2007).


                                                                               A-4665-17
                                        11
satisfied the third Cofield prong. Among other things, the judge cited the

officer's testimony that the bills "did not feel like currency" and two bills had

"the same serial number."

      Ordinarily, we apply an abuse of discretion standard to the evidentiary

rulings of other-crime evidence. State v. Castagna, 

400 N.J. Super. 164

, 182-83

(App. Div. 2008). Under that standard, we defer to the trial court "in recognition

that the admissibility of extrinsic evidence of other crimes or wrongs is best

determined by the trial judge with more intimate knowledge of the case who is

therefore in the best position to weigh the probative value versus potential

prejudice of the proffered evidence."

Ibid. There must be

a "clear error of

judgment" to overturn the trial court's determination. State v. Rose, 

206 N.J. 141

, 158 (2011) (internal quotation marks omitted). If the trial court fails to

engage in a proper N.J.R.E. 404(b) analysis, our review is plenary.

Ibid. Pursuant to our

deferential standard of review, we discern no abuse of

discretion in the trial judge's findings. We affirm substantially for the reasons

stated by the judge in his cogent oral decision. R. 2:11-3(e)(2). We simply note

the judge's decision comports with the well-established principle that "[a] wider

range of evidence may be admissible to prove motive as long as there is a logical

connection between the alleged motive and the other-crimes evidence."


                                                                            A-4665-17
                                       12

Castagna, 400 N.J. Super. at 178

(citing State v. Williams, 

190 N.J. 114

, 125

(2007)). Here, the evidence presented to the trial judge supported the State's

theory that defendant's motive for obstructing the administration of law was to

prevent the detection of counterfeit currency.

      In our view, however, the counterfeit currency seized from defendant's

shorts was "intrinsic evidence" of the crime of obstruction. An uncharged

offense is intrinsic evidence if: (1) "it directly proves the charged offense[,]" or

(2) the uncharged act was "performed contemporaneously with the charged

crime" and it "facilitate[d] the commission of the charged crime." 

Rose, 206 N.J. at 180

(internal quotation marks omitted).          However, even "intrinsic

evidence" is subject to N.J.R.E. 403, which permits exclusion of "relevant

evidence . . . if its probative value is substantially outweighed by the risk of . . .

undue prejudice."

Id. at 177.

      In the present matter, defendant possessed the counterfeit currency

"contemporaneously" with his efforts to prevent the officers from completing an

official police function, i.e., the booking process. And defendant's possession

of counterfeit currency that he secreted in and under his clothes "facilitated the

commission" of the obstruction charge when he hindered police efforts to

remove his clothes during the booking process.           Moreover, the counterfeit


                                                                                A-4665-17
                                         13
currency was "clearly relevant to material facts at issue in the determination of

defendant's guilt on the charged offense[.]" State v. Brockington, 439 N.J.

Super. 311, 333 (App. Div. 2015). Viewed in that context, the counterfeit

currency was not subject to analysis under N.J.R.E. 404(b) because that

evidence was intrinsic to the obstruction charge. See 

Rose, 206 N.J. at 177-79

.

Having conducted a de novo review of the record, we are satisfied evidence of

the counterfeit currency was properly admitted at trial.

                                        C.

      Defendant now claims errors in the trial judge's limiting instruction issued

to the jurors when the counterfeit currency was published to the jury during trial,

and the final charge that the jury should not consider that evidence. In essence,

defendant contends those instructions failed to caution the jurors they must not

infer defendant's propensity to commit crimes from the counterfeit currency

seized from defendant. Defendant also belatedly argues the final instructions

regarding the obstruction charge failed to specifically reference the booking

video.

      During trial, when the counterfeit bills were published to the jury over

defendant's renewed objection under N.J.R.E. 404(b), the judge promptly issued

the following limiting instruction:


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                                       14
            I just want to make something clear to you, . . . these
            bills, which the State is alleging are . . . counterfeit,
            . . . defendant is not . . . charged with possession of
            counterfeit dollars.

                  But rather, this [evidence] is being admitted into
            evidence for the limited purpose for the State to argue
            that there was a motive as to why there was the
            obstruction.

                  And it's only for that purpose only that you
            should consider these [three counterfeit bills] that have
            been marked into evidence.

Defendant posed no objection to the adequacy of the instruction when given.

      As a preliminary matter, we conclude a limiting instruction was

unnecessary because the counterfeit currency evidence was intrinsic to the

obstruction charge when it was moved into evidence by the State and not offered

to show defendant's criminal propensity. See 

Rose, 206 N.J. at 180

-81. We

recognize, however, that the State did not assert the counterfeit currency was

intrinsic to the obstruction charge, and the trial judge did not decide defendant's

Rule 404(b) motion on that basis. We therefore briefly consider defendant's

contentions, which implicitly suggest the judge failed to provide the full model

jury charge on Rule 404(b) evidence. See Model Jury Charges (Criminal),

"Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12,

2016) (instructing that that the jurors "may not use [other crime] evidence to

                                                                             A-4665-17
                                       15
decide that defendant has a tendency to commit crimes or he . . . is a bad

person").

      Failure to issue an adequate limiting instruction is reviewed using the

plain error standard where the issue was not raised at trial. See State v. Burns,

192 N.J. 312

, 341 (2007). Under that standard, "we must disregard any error

unless it is 'clearly capable of producing an unjust result.'" State v. Atwater, 

400 N.J. Super. 319

, 336 (App. Div. 2008) (quoting State v. Daniels, 

182 N.J. 80

, 95

(2004)). "Reversal of defendant's conviction is required only if there was error

'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it

otherwise might not have reached.'"

Ibid. (quoting State v.

Macon, 

57 N.J. 325

,

336 (1971)).

      Because defendant did not object to the adequacy of the instructions given,

we view his newly-minted contentions through the prism of the plain error

standard. R. 2:10-2; see also R. 1:7-5; State v. Morais, 

359 N.J. Super. 123

, 134

(App. Div. 2003) (holding a "[d]efendant is required to challenge instructions at

the time of trial."). "Under the plain error standard, [a] defendant has the burden

of proving that the error was clear and obvious and that it affected his substantial

rights." State v. Koskovich, 

168 N.J. 448

, 529 (2001) (internal quotation marks

omitted).


                                                                               A-4665-17
                                         16
      That burden was not met here, where the judge expressly informed the

jury the counterfeit currency only was admitted for "the limited purpose for the

State to argue that there was a motive as to why there was the obstruction."

Further, the judge expressly instructed the jury to disregard the evidence

pertaining to the obstruction charge in its entirety after downgrading it to a

disorderly persons offense at the close of all evidence. Specifically, in his final

charge, with the consent of defense counsel, the judge issued the following

pointed instructions:

                  You heard some discussion early on in this case
            regarding an obstruction charge. As to the obstruction
            charge, that matter will not be for your consideration.
            Any evidence you heard regarding the obstruction
            charge should not be considered by you in determining
            the charges of receiving stolen property and unlawful
            possession of a weapon.

                  You heard evidence of . . . defendant being in the
            possession of counterfeit bills. The evidence was given
            with a limited instruction that it was for the purpose of
            establishing a motive for the obstruction charge. Since
            that charge is no longer for you to decide, you should
            not consider at all the evidence of the counterfeit bills,
            nor should the discussion of that issue enter into your
            deliberations at any time.

            [(Emphasis added).]

      Viewing defendant's belated challenges to the limiting and final charges

under our plain error standard, we cannot conclude those charges were so

                                                                             A-4665-17
                                       17
lacking as to constitute reversible error. We presume the jury followed the

instructions given. State v. Smith, 

212 N.J. 365

, 409 (2012).

                                        D.

      Little need be said about defendant's belated assertions concerning the

booking video. For the first time on appeal, defendant claims that after the judge

downgraded the obstruction charge, "the booking video evidence ceased to be

'intrinsic to the charged crime' and became 'other crime' or 'prior bad act'

evidence" of the downgraded obstruction charge. Defendant further asserts the

judge sua sponte "failed to subject the booking video to the heightened Rule

404(b)" analysis.    Defendant's contentions lack sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief

comments.

      Because the booking video depicted defendant's actions, which physically

interfered with the officers' attempts to perform their official function, the video

was intrinsic evidence of obstructing the administration of law, as charged in

the indictment. In any event, when the judge downgraded the fourth-degree

obstruction charge, he removed the video from the jury's consideration during

their deliberations. As noted, the judge's final instruction directed the jurors not

to consider any evidence regarding the obstruction charge in their deliberations


                                                                              A-4665-17
                                        18
on the remaining charges. Again, we presume the jury followed that instruction.

Smith, 212 N.J. at 409

. We therefore discern no error, let alone plain error in

the jury's viewing of the video during trial.

                                        E.

      Finally, we reject defendant's contention that the cumulative effect of the

errors committed during his trial warrants reversal. Defendant has failed to

demonstrate any error or pattern of errors, rising to the level, either singly or

cumulatively, that denied him a fair trial. "A defendant is entitled to a fair trial

but not a perfect one."     State v. R.B., 

183 N.J. 308

, 334 (2005) (internal

quotation marks omitted).

      Even assuming arguendo error was committed by the jury's viewing of the

counterfeit currency and booking video, that error was not clearly capable of

producing an unjust result in view of "the overall strength of the State's case."

State v. Sanchez-Medina, 

231 N.J. 452

, 468 (2018). Indeed, the evidence of

defendant's guilt on the unlawful possession of the weapon and receiving stolen

property charges was substantial. Defendant was arrested while seated in a

stolen car, with a "punched out" ignition and a screwdriver in his pocket. Police

recovered a loaded handgun on the floor of the car occupied by defendant and

John. See N.J.S.A. 2C:39-2(a) (1) (providing a presumption of joint possession


                                                                              A-4665-17
                                        19
of a firearm found in a vehicle with more than one occupant). Most telling are

defendant's own words, admitting he was "caught in plain sight." That evidence

cumulatively established defendant's guilt on the charges submitted to the jury.

      Affirmed.




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