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Posted on November 18, 2022 by Barry Zalma
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Following a fifteen-day trial, a jury agreed with the State’s claims that defendant Terrence L. Strothers’ year-long dispute over a woman with another man, Shane Stevens, resulted in defendant assaulting Shane by firing a flare at Shane’s car; and later that same day recruiting some friends to aid in his retribution who fired two flares at Shane’s family’s home, causing its destruction.
In STATE OF NEW JERSEY v. TERRENCE L. STROTHERS, No. A-5157-18, Superior Court of New Jersey, Appellate Division (November 15, 2022) he attempted to avoid jail and the convictions that the jury found obvious.
JURY VERDICT
In reaching its verdict, the jury found defendant guilty of eleven of the State’s thirteen charges. Defendant was convicted of:
third-degree conspiracy to commit arson as a lesser-included offense of second-degree conspiracy to commit aggravated arson;
third-degree arson, as a lesser-included offense of second-degree aggravated arson; third-degree conspiracy to commit criminal mischief;
third-degree criminal mischief; third-degree conspiracy to commit aggravated assault as a lesser-included offense of second-degree conspiracy to committed aggravated assault;
third-degree aggravated assault as a lesser-included offense of second-degree aggravated assault;
second-degree aggravated assault;
two counts of third-degree possession of a weapon for unlawful purposes; and three counts of fourth-degree unlawful possession of a weapon.
Defendant received an aggregate eleven-year sentence for second-degree aggravated assault subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to a four-year sentence for third-degree arson, third-degree criminal mischief, and the third- and fourth-degree weapons offenses. Defendant was also ordered to pay $50,000 in restitution to the Stevens.
CHALLENGES TO CONVICTION
Defendant contested the trial judge’s:
denial of defendant’s motion for judgment of acquittal;
admission of the State’s fire expert testimony;
decision not to substitute a deliberating juror; and
jury instruction on the conspiracy to commit aggravated arson and aggravated arson charges.
Judgment of Acquittal
Defendant asserted the use of a flare gun was “a spur of the moment occurrence as no one expected Stevens and his friends to drive past . . . defendant’s house.” The only “weapons” brought were a bat and a two-by-four in case he and his friends were outnumbered in the fight. In denying defendant’s motion for acquittal, the judge reasoned that all the co-conspirators had met earlier at the defendant’s residence and at some point, proceeded over to the Stevens’ residence, to accompany defendant in his, I guess, vendetta for and retribution for damage to his car. That, in conjunction with the phone conversation where defendant threatened Shane that even though he may be going back to school to California, his house isn’t, at least creates the inference that he was going there to do something to the home. And as it turned out, he went there with others who had flare guns and it was obvious to defendant that others had flare guns. Codefendant Joshua Maldonado fired a flare gun. He recruited Barnes to accompany him. Barnes fired a flare gun.
To convict defendant of conspiracy to commit a crime, the State had to satisfy N.J.S.A. 2C:5-2(a), which provides in pertinent part:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
Agrees 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 or solicitation to commit such crime; or
Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
The Appellate Court concluded that the denial of defendant’s motion for judgment of acquittal of the arson, assault, and related weapon charges were appropriate.
Juror Substitution
The defendant invited the juror substitution and should not benefit from the substitution by claiming it was an error. He should not be able to argue that an adverse decision by the trial judge was the product of error, when he urged the judge to adopt the proposition now alleged to be error.
Even if the alleged error was not invited, the plain error rule applies because defendant neither objected to the removal of juror number nine nor argued it was too late to reconstitute the jury. Once a jury begins its deliberations, the trial judge may not substitute an alternate juror unless “a juror dies or is discharged by the court because of or other inability to continue.” The substitution of juror nine was consistent with Rule 1:8-2(d)(1) and did not violate defendant’s due process rights by denying him a fair trial.
Jury Instructions
Even though “and/or” is repeatedly used in the model jury instructions, and the jury is directed to consider alternative options, defendant fails to show how the phrase was improperly used in this instance. As to defendant’s guilt, the State argued he fired the flare gun at Shane’s car, and his conspiracy with others directly led to them firing the flare gun at Shane’s home. This did not present a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory.
SENTENCING AND RESTITUTION
Lastly, defendant objected to the judge’s order to pay restitution towards the Stevens’ expenses of $138,065.27, which were uncompensated by insurance coverage. The judge assessed defendant’s ability to pay restitution, considering his wage earnings at the time of sentencing and his anticipated employment after serving his sentence.
ZALMA OPINION
In ordering restitution the judge ignored, and cut out, one of the victims of the crime: Shane’s insurer. It should have appeared at sentencing and demand restitution. Otherwise, this case proves that jealousy should be limited and by punishing the “other man” the lovelorn will now spend 11 years in prison and when he comes out he must pay his victim $138,065.27 or go back to jail.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.
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