                                 NOT FOR PUBLICATION WITHOUT THE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-2857-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

THOMAS H. OUTLAND, a/k/a
THOMAS GO OUTLAND,
ISLAM GOODWIN, and THOMAS
H. JAMISON,

           Defendant-Appellant.


                    Submitted April 3, 2019 – Decided June 17, 2019

                    Before Judges Alvarez and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 16-02-0107.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael Timothy Denny, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Michele C.
                    Buckley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the briefs).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Tried by a jury, defendant Thomas Outland was convicted of second-

degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and 2C:5-2, and fourth-

degree possession of an imitation firearm for an unlawful purpose, N.J.S.A.

2C:39-4(e). He was acquitted of first-degree robbery, N.J.S.A. 2C:15-1. On

August 25, 2017, the trial judge sentenced defendant to nine years

imprisonment, subject to the No Early Release Act eighty-five percent parole

ineligibility. See N.J.S.A. 2C:43-7.2. He imposed an eighteen-month term of

imprisonment on the possession charge, to be served concurrently to the

conspiracy. The sentences ran consecutive to a sentence defendant was then

serving. He appeals the conviction and also argues the judgment of conviction

(JOC) should be corrected to reflect the correct degree of the crime. We affirm

defendant's conviction. With the State's consent, we remand for the limited

purpose of correcting a typographical error in the JOC.

      At trial, five McDonald's employees testified regarding the incident,

which occurred after closing on September 4, 2015. Mr. Martinez, the only

victim named in the robbery count, was about to place the restaurant receipts in




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                                       2
a safe in his office at the back. The remaining employees were cleaning and

preparing for the following day.

       Defendant and a person who was never identified entered the restaurant

wearing masks and carrying firearms. Defendant was carrying what appeared

to be a shotgun. As he walked towards the door to Martinez's office, a female

employee saw him and began to cry.

       Mr. Exume, another employee, testified that he heard defendant say to

Martinez, "hold up, hold up, you're being robbed." Martinez only remembered

seeing defendant standing in front of him holding a weapon. Exume realized

that the shotgun was an imitation, and said: "I told him to, you know what the

f--- did you do with a fake toys gun and I say it in a loud voice, as my military

speaking, drill sergeant voice, very forceful." Defendant then lifted his ski mask

and told Martinez, "this is a joke." Martinez recognized defendant because he

had worked at the restaurant until approximately a month before. Martinez

raised his hands to "lower the weapon that was there" as defendant approached

him.    Immediately afterwards, defendant left.      Exume also testified that

defendant laughed when he removed his ski mask, but that it sounded "fake."

       Meanwhile, towards the front of the restaurant, the other masked man

grabbed Mr. Estrada's arm, and pulled him over to a counter demanding his cell


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                                        3
phone. While approaching Mr. Salazar, who was mopping the floor, the man

slipped and fell.   Salazar saw the man holding a gun, and although his

understanding of English was limited, he emptied his pockets, placing his cell

phone and twenty dollars on the table.

      Defendant returned to the front of the restaurant still laughing, gave

Estrada a hug, and told the other man to give everything back. Once the items

were returned, defendant and the other man left.

      Police were not called that night since Martinez knew defendant was the

brother of a more senior manager at the same McDonald's, and he wanted to

discuss whether he should report the incident with his general manager. One of

the other employees contacted the authorities.

      Defendant's trial strategy was to cast the incident as nothing more than a

poor joke gone awry. The State's theory was that it was robbery, aborted when

Exume announced that the weapon was a fake.

      Three days before the trial was scheduled to begin, the court heard

defendant's motion to represent himself, which had been filed some four months

earlier. During the course of the colloquy, defendant explained he wanted to

represent himself with the assistance of an attorney from the public defender's

office, and that he had applied for their services. Defendant, a high school


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                                         4
graduate, was unable to accurately respond to the judge's questions regarding

his sentencing exposure if convicted of robbery, including the fact that because

he was mandatory extended-term eligible, he could be sentenced to life. He had

limited experience with trials despite his criminal record.      Defendant was

unfamiliar with terms such as accomplice liability, renunciation, or the defense

of intoxication. He was also unfamiliar with the criminal code or the rules of

evidence. Defendant had fired his attorney that day.

      Defendant did not know that he was charged with conspiracy in addition

to robbery. He told the judge because he "was there when the incident took

place," he was the most familiar with the circumstances and therefore "the best

person to represent [him]self."

      The judge denied the application, finding defendant lacked a sufficient

understanding of the rudiments of the law, including affirmative defenses which

might be applicable in his case.       Most significantly, defendant had little

understanding of the charges he faced or the grave potential sentencing

consequences. The judge found that defendant's responses would "not support

even remotely a finding that the defendant ha[d] intelligently attempted to waive

the assistance of counsel."       The judge noted that the attorney who was

representing defendant at that time was the second lawyer in the case. The judge


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                                        5
then granted the attorney's application to withdraw in light of the fact that his

client no longer wished him to represent him, and rescheduled the trial.

      At the close of the case, the judge extensively reviewed jury charges with

counsel, and after instructing the jury, reaffirmed that there were no objections.

During deliberations, the jury asked the judge "[i]s it possible to find [defendant]

guilty of conspiracy if we don't believe he intended to rob [Martinez][?]" The

question was followed by a bullet point requesting "clarification of the meaning

of 'conspiracy to commit robbery.'"

      With counsel's consent, the judge told the jury:

                 Yes, it is possible to find the Defendant guilty of
            conspiracy even if the jury does not believe the
            Defendant intended to rob [Martinez].

                  "A conspiracy to commit the crime of robbery is
            a crime in itself separate and distinct from the crime of
            robbery. In other words, a defendant may be found
            guilty of the crime of conspiracy regardless of whether
            that defendant is guilty or not guilty of the crime of
            robbery."

                  "Each offense in this indictment should be
            considered by you separately. The fact that you may
            find the Defendant guilty or not guilty of a particular
            crime should not control your verdict as to any other
            offense charged against the Defendant."

                  As to seeking a clarification on conspiracy, I
            refer you to my previous legal instructions on


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                                         6
            conspiracy from pages 15 to 18 in the written
            instructions.

      Now on appeal, defendant's counseled brief asserts the following points:

            POINT I
            THE TRIAL COURT'S INCORRECT AND
            GROSSLY MISLEADING RESPONSE TO THE
            JURY'S QUESTION IMPROPERLY PERMITTED
            THE JURY TO CONVICT DEFENDANT OF
            CONSPIRACY EVEN IF THEY DID NOT BELIEVE
            HE HAD A SHARED PURPOSE TO COMMIT
            ROBBERY.

            POINT II1
            THE JUDGMENT OF CONVICTION SHOULD BE
            AMENDED TO REFLECT THE CORRECT DEGREE
            OF THE CRIME.

      In his pro se brief, defendant raises the following point:

            POINT I
            THE TRIAL COURT ERRED WHEN IT DENIED
            APPELLANT, A CRIMINAL DEFENDANT HIS
            CONSTITUTIONAL RIGHT TO REPRESENT
            HIMSELF AT TRIAL AFTER ASSERTING HIS
            CLEAR AND UNEQUIVOCAL, KNOWINGLY AND
            INTELLIGENTLY WAIVER OF HIS RIGHT TO
            COUNSEL.




1
  The State agrees that the judgment of conviction requires amendment to reflect
defendant was convicted of second-degree conspiracy, not first-degree.
Accordingly, we do not address that issue.
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                                        7
                                        I.

       Defendant contends that the trial court erred in responding to the jury's

 question because the judge's response allowed them to convict defendant of

 conspiracy without addressing any shared purpose to commit robbery. There

can be no doubt that appropriate jury charges are essential to a fair trial. State

 v. Baum, 224 N.J. 147, 158-59 (2016). "Because proper jury instructions are

essential to a fair trial, 'erroneous instructions on material points are presumed

    to' possess the capacity to unfairly prejudice the defendant." Id. at 159

            (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

      Defendant did not object at trial, thus we consider the point applying the

plain error standard. See R. 2:10-2. Defendant must demonstrate the claimed

error was "clearly capable of producing an unjust result." Ibid. In the context

of a jury charge, plain error is a "[l]egal impropriety in the charge prejudicially

affecting the substantial rights of the defendant and sufficiently grievous to

justify notice by the reviewing court and to convince the court that of itself the

error possessed a clear capacity to bring about an unjust result."        State v.

Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v.

Adams, 194 N.J. 186, 207 (2008)). In order to determine whether the error

affected defendant's substantial rights and was sufficiently grievous for us to


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                                        8
reverse a conviction, the jury instructions will be considered as a whole. State

v. Brown, 190 N.J. 144, 160 (2007). Where, as in this case, there was no

objection to the charge, "there is a presumption that [a] charge was not [in] error

and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.

157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 334-34 (1971)).

      The basis for defendant's argument is the fact that the jury acquitted

defendant of the robbery charge.       But the absence of direct proofs of an

agreement between defendant and his co-conspirator does not mean that their

conduct did not provide overwhelming circumstantial evidence of a shared

purpose. Neither does the jury's not guilty verdict on the robbery count, which

named only Martinez as the victim, somehow establish a failure to find a shared

purpose.

      Defendant and his co-conspirator walked into the McDonald's together,

both carrying weapons, or what the victims had reason to believe were weapons.

It was not until Exume said the weapon defendant was carrying was not real that

defendant reversed course. He and the other man were outnumbered.

      The judge's conspiracy instruction, which he gave orally and in writing,

tracks the model jury charge.      It states that a person can be convicted of

conspiracy only if


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                                        9
            with the purpose of promoting or facilitating its
            commission [he]: (1) [a]grees with such other person or
            persons that they or one or more of them will engage in
            conduct which constitutes such crime or an attempt . . .
            to commit such crime; or (2) [a]grees to aid such other
            person or persons in the planning or commission of
            such crime or of an attempt . . . to commit such crime.

            [Model Jury Charges (Criminal), "Conspiracy
            (N.J.S.A. 2C:5-2)" (rev. Apr. 12, 2010).]

The judge told the jury that defendant must have agreed with his co-conspirator

and that his purpose must have been "to promote or facilitate the commission of

the crime of robbery." He defined purpose.

      Thus there is neither a basis in the facts or the record for the jury to have

been mistaken, nor any indication they ignored the mental state required to prove

the offense.    Defendant's co-conspirator relieved the employees of their

belongings in the room which defendant, while holding a "shotgun," had just

walked through headed towards Martinez's office and the cash receipts. Nothing

in the record suggests defendant acted with a purpose other than to rob the

restaurant and those inside jointly with the other masked man. The judge's

charge explained the required state of mind. The circumstances supported a

finding of a shared purpose. Therefore, the instruction did not possess a clear

capacity to bring about an unjust result.

                                        II.

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                                       10
      In his pro se brief, defendant argues that the court's failure to permit him

to represent himself was reversible error. As a threshold matter, we note that it

is not so clear that defendant actually wanted to represent himself. He wanted

to represent himself with a public defender sitting at his side as a guide. That is

more than just stand-by counsel.

      Certainly, a defendant in a criminal matter has the right to counsel under

the Sixth Amendment to the United States Constitution and Article 1 Paragraph

10 of the New Jersey State Constitution. Within that Sixth Amendment right to

counsel is the right a defendant has to dispense with counsel's assistance an d

represent himself. Faretta v. California, 422 U.S. 806, 836 (1975).

      Although we question whether this was an unequivocal request for self-

representation, the trial judge engaged in the inquiry outlined in State v. Crisafi,

128 N.J. 499, 510-12 (1992). The judge explained to defendant the nature of

the charges, possible defenses, the range of punishment, the risks that come with

self-representation, the requirement that defendant abide by rules of the court,

and the inadvisability of proceeding on a self-represented basis.          State v.

Figueroa, 186 N.J. 589, 593 (2006). In State v. Reddish, 181 N.J. 553, 593-94

(2004), the Court expanded the inquiry to include the practical consequences

that might hamper a defense when a defendant is allowed to proceed pro se.


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                                        11
        There is no doubt that a defendant who represents himself does so to his

"likely detriment." Id. at 580. The Court has said "that a defendant who

represents himself 'relinquishes, as a purely factual matter, many of the

traditional benefits associated with the right to counsel.'" Ibid. (citing Faretta,

422 U.S. at 835). But because it is the defendant who bears the consequences

of a conviction, it is only the defendant who should decide whether or not self -

representation is a particular advantage in that case. Ibid.

        The judge's exploration of defendant's ability to represent himself focused

narrowly on his technical knowledge, which is not dispositive of a knowing,

intelligent, and voluntary waiver of the right to counsel. See Faretta, 422 U.S.

at 836. In this case, however, had defendant been convicted of the first-degree

robbery, the sentencing consequences would have been a life sentence imposed

consecutive to a sentence for robbery defendant was already serving. Defendant

was unaware of that sentencing consequence. Nor did he know the actual

charges that were pending against him, including conspiracy, would have been

a much more difficult charge for him to defend, given the circumstances of the

case.

        The judge's inquiry adequately elicited two key pieces of information that

warranted denial of the motion. Despite the fact the motion was heard just three


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                                        12
days before trial, defendant did not know the charges he faced or the fact that,

if convicted, he would be serving a life sentence consecutive to a sentence he

was already serving. Thus, the judge's failure to allow defendant to represent

himself was not error because defendant was not making a knowing and

intelligent waiver.

      Affirmed as to the conviction. Remanded to correct the JOC. We do not

retain jurisdiction.




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                                      13
