                        NOT FOR PUBLICATION WITHOUT THE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-2783-14T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARK N. BROWNLOW, a/k/a
MARK NATHAN BROWNLOW,

     Defendant-Appellant.
___________________________

              Submitted March 29, 2017 – Decided August 9, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              14-01-0003.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel V. Gautieri, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Robin A. Hamett,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Mark Nathan Brownlow was tried before a jury and

convicted of third degree theft, N.J.S.A. 2C:20-3a.                  The verdict

sheet that the jury used described the pieces of jewelry defendant

allegedly    stole    from    the    victim     and    included      a    separate

interrogatory requiring the jury to find whether the value of the

property taken was in excess of $500. See N.J.S.A. 2C:20-2b(2)(a).

The jury acquitted defendant of third degree burglary, N.J.S.A.

2C:18-2a(1),   and    third   degree      conspiracy       to   commit   burglary,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2a(1).

     The    court    sentenced      defendant   to     a    four-year     term    of

probation,   conditioned      upon    a   substance    abuse      evaluation     and

treatment if warranted.          The court also imposed the mandatory

fines and penalties.      In this appeal, defendant argues the trial

court should have molded the jury's verdict to a disorderly persons

offense of theft because the evidence showed the value of the

personal property involved was less than $200.                   N.J.S.A. 2C:20-

2b(4)(a).    Alternatively, defendant argues he is entitled to a new

trial because the court erred by failing to instruct the jury sua

sponte on the lesser included offense of fourth degree theft,

N.J.S.A. 2C:20-2b(3).

     After reviewing the record developed before the trial court,

we reject defendant's arguments and affirm.                     In this appeal,

defendant challenges only the evidence establishing the value of

                                          2                                A-2783-14T2
the items he stole and whether the jury should have been given the

option of finding him guilty of a lesser crime based on the value

of those items.     Stated differently, defendant does not deny he

stole these items; he only argues they were worth less than what

the State claimed they were worth.          We will thus limit our

recitation of the salient facts accordingly.

     On December 18, 2012, a woman we identify here using the

initials D.M., made a 9-1-1 call to the Gloucester Township Police

Department to report that her "home had been broken into."         D.M.

is defendant's mother.   D.M. testified she discovered the burglary

upon returning home from work.   As she "cautiously" walked through

the house, she discovered that the back door had been "broken in"

and "the bedroom drawers were dumped over, and a mess." Gloucester

Township   Police   Officers   David   Sgrignuoli   and   Daniel   Ritz

responded to the 9-1-1 call.   They corroborated D.M.'s description

of her residence immediately after the burglary.

     D.M. described the items that were taken as "some jewelry

pieces," "some banks with change in them," a drill she had given

her late husband, which he "never even got to use," and an

undisclosed number of "gift cards."        After reviewing a police

report to refresh her recollection, D.M. described the jewelry

pieces stolen as "wedding rings, a butterfly bracelet, some gold

chains, [and] a couple of watches."     The wedding rings included a

                                  3                            A-2783-14T2
"gold   enhancer    ring"   that   "went   around   .   .   .   [her]   diamond

engagement ring."     D.M. submitted a claim for the theft of these

items under her homeowner's insurance policy.               D.M. received a

check in the amount of $1,207.10 from the insurance company as

compensation for her loss.

    D.M. testified her twenty-nine-year-old son was "allowed to

be in [her] home" and she made clear to the jury that she did not

believe defendant had anything to do with this incident.                     The

following exchange illustrates her belief:

           Q. Okay. Now, we understand your house was
           burglarized in December of 2012.    Was your
           house ever burglarized before that when your
           son was living with you?

           A. No.

           Q. Has your son been to your home since this
           happened?

           A. Oh, yes.

           Q. Has your home ever been burglarized since
           then?

           A. No.

           Q. And you still welcome him in your home,
           that's correct, right?

           A. Yes.

           Q. Okay. Do you want to be here today, [D.M.]?

           A. Not at all.    I'd rather be at work and
           getting paid for my job.


                                      4                                 A-2783-14T2
          Q. As you sit here today, do you believe that
          your son is guilty of this crime beyond a
          reasonable doubt?

          A. No, I don't think my son did this.

          Q. And you told the Prosecutor's Office you
          wanted these charges dropped, isn't that true?

          A. Yeah, . . . they've really been harassing
          me at work and everything. . . .

     Defendant's ex-girlfriend Cheryl Hendricks and her brother

Mark Hendricks testified as witnesses for the State.   Cheryl 1 was

charged as a codefendant in this case.     She pleaded guilty to

conspiracy to commit third degree burglary and was sentenced to a

four-year term of probation conditioned upon serving 180 days in

the SLAP program.2   Cheryl denied she received anything from the

State in return for her testimony against defendant.

     Mark learned of the burglary when he spoke with defendant in

the intake section of the Burlington County Jail, where they were

both detained at the time.   Cheryl testified that at the time of

the burglary on December 18, 2012, defendant was living with her

"[b]ecause his mother kicked him out" of her house in September


1
  We will refer to Cheryl Hendricks and her brother Mark Hendricks
by their first names in the interest of clarity. No disrespect
is intended or implied.
2
  The acronym "SLAP" refers to the Sheriff's Labor Assistance
Program, N.J.S.A. 2B:19-5. When asked to explain what this meant,
Cheryl responded: "[The] SLAP program is basically community
service."

                                5                          A-2783-14T2
or October of that year.         Defendant drove Cheryl to D.M.'s house

and she waited in the car while defendant went inside to steal his

mother's jewelry.      Defendant used his key to enter the house.           He

broke the back door to divert suspicion from himself.

     According to Cheryl, as soon as defendant came out with the

jewelry, they "went and drove to the pawn shop."         Defendant wanted

to convert the jewelry to cash because "[h]e needed the money."

The pawnshop made a photocopy of Cheryl's driver's license and

photographed the jewelry.         Cheryl received $300 for the items,

which she immediately turned over to defendant.          The receipt from

the pawnshop is dated December 18, 2012.            Cheryl also testified

that defendant took "clothing and his shoes and a car starter."

     Against    this   record,    defendant   now   raises   the   following

arguments.

     POINT I

          BECAUSE THE STATE FAILED TO PROVE AN ELEMENT
          OF THIRD-DEGREE THEFT, THAT THE STOLEN
          PROPERTY WAS VALUED AT OVER $500[], THE COURT
          SHOULD MOLD THE VERDICT TO ONE FOR A
          DISORDERLY-PERSONS THEFT.

     POINT II

          THE COURT ERRED IN FAILING TO SUBMIT AN
          INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF
          FOURTH-DEGREE THEFT BECAUSE THE VALUE OF THE
          STOLEN OBJECTS WAS UNCLEAR. (Partially Raised
          Below).



                                      6                              A-2783-14T2
      The principal issue here is a discrete one.                 The lesser

included offense is based on the valuation of the stolen items.

D.M. testified she received $1,207.10 from her home insurance

carrier as compensation for her losses.                Joseph Palandro, the

carrier's representative who handled D.M.'s claim, testified she

was paid for "her damages and her stolen items."                  He did not

delineate what amount paid for the loss of her personal property

and what amount paid for the damage to her real property.

      Cheryl testified she received $300 from the pawnshop.                This

was corroborated by the pawnshop's receipt, which described the

items, and a photograph of the items themselves.              D.M. described

the jewelry as consisting of a diamond engagement ring enhanced

by a gold ring, a butterfly bracelet, some gold chains, a couple

of watches, and an unused drill.            The jury was specifically asked

to determine if these items, taken together, had a value of more

than $500.     During the Rule 1:8-7(b) charge conference, the judge

distributed to counsel "a clean version of the final instructions"

and   asked    them   if   they   had   "any   additions,    corrections,     or

deletions[.]"     The attorneys did not suggest any changes.

      During    closing    arguments     to    the   jury,   defense   counsel

addressed the jury directly on the value of the stolen items.

              Then we look at the values of the property,
              and the State wants you to submit that . . .
              the value is in excess of $500.     Well, we

                                        7                              A-2783-14T2
          heard from the victim, and she testified that
          she couldn't really remember the amounts and
          the values of the property and that she wasn't
          really sure what everything was worth, and
          someone from the insurance company came in and
          they testified and they said that they
          eventually sent her out a check for $1,200,
          but we didn't see any receipts. We didn't see
          any copies of . . . documentation of how much
          it was worth. We didn't see any valuations.
          What the State has to prove to you is the
          actual value of the property that has been
          stolen, and I submit to you, ladies and
          gentlemen, that they haven't proved what the
          actual value is.

          We're in the same position we were when we
          first started. I told you the State would not
          be able to prove its case beyond a reasonable
          doubt, that they would only be able to bring
          two individuals who lacked any form of
          credibility, and ladies and gentlemen, I
          submit to you that how we started is how we're
          now finishing.

     The law in this area is settled.   N.J.S.A. 2C:1-8e cautions

trial courts not to charge the jury "with respect to an included

offense unless there is a rational basis for a verdict convicting

the defendant of the included offense."    However, a trial judge

has an independent, non-delegable duty "'to instruct on lesser-

included charges when the facts adduced at trial clearly indicate

that a jury could convict on the lesser while acquitting on the

greater offense.'"   State v. Funderburg, 225 N.J. 66, 76 (2016)

(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).   Thus, even

if neither the State nor defendant requests the trial judge to


                                8                          A-2783-14T2
instruct the jury on a lesser included offense, the court must sua

sponte provide such an instruction when appropriate.               State v.

Maloney, 216 N.J. 91, 107 (2013) (quoting State v. Thomas, 187

N.J. 119, 132 (2006)).

       Because defendant did not request that the court instruct the

jury on the lesser included offense based on the value of the

items, we review the trial judge's decision for plain error.                R.

2:10-2.     As applied to jury instructions, plain error requires us

to   determine    whether    the   charge's   impropriety   "prejudicially

affect[ed]" defendant's "substantial rights" and was "sufficiently

grievous" to convince us that the error had a "clear capacity to

bring about an unjust result."         State v. Chapland, 187 N.J. 275,

289 (2006) (citation omitted).

       Here, we are satisfied defendant made a strategic decision

to leave the jury with no option other than convict or acquit on

the question as framed by the court in the verdict sheet.             If the

jury had been given the option of considering the lesser included

offense of fourth degree theft under N.J.S.A. 2C:20-2b(3), in

which the amount involved is at least $200 but does not exceed

$500, the pawnshop receipt showing defendant received $300 for the

items he pawned would have been viewed as nearly indisputable

evidence of valuation.       However, by leaving the jury with only one

task   --   to   determine   whether   the    State   presented   sufficient

                                       9                             A-2783-14T2
evidence to prove, beyond a reasonable doubt, that the value of

the stolen items exceeded $500 -- defense counsel was able to make

the far stronger argument reflected in his closing argument.

     Although this strategy was legally plausible, it was not

without risks.    As the Court explained in State v. Williams, 219

N.J. 89, 100 (2014), "when a defendant later claims that a trial

court was mistaken for allowing him to pursue a chosen strategy

-- a strategy not unreasonable on its face but one that did not

result in a favorable outcome -- his claim may be barred by the

invited-error    doctrine."   We   are   satisfied   defendant   made    a

strategic decision to leave the jury with only one option, hoping

that the odds favored acquittal based on the question of valuation

as framed by the court in the verdict sheet.         Defendant must now

live with the consequences of this decision.

     Affirmed.




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