The opinion
NOT FOR PUBLICATION WITHOUT THE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-2898-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS VEIRA, a/k/a FRANK
SEENHOUSEN, WEEF
PADRINO, and LUIS ANTONIA
VIERA,
Defendant-Appellant.
____________________________
Submitted March 7, 2019 – Decided June 14, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-05-1285.
Hegge & Confusione, LLC, attorneys for appellant
(Michael James Confusione, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Louis Veira appeals from a February 2, 2018 judgment of
conviction. For the following reasons, we affirm.
On December 2, 2016, Diane Ortiz was working as an assistant store
manager at a Home Depot in Lawnside. Another employee told Ortiz that he
suspected a man and two women with a child in a shopping cart were shoplifting
from the store. Ortiz approached the two women in the garden center and asked
co-defendant Melissa Rivera and the other woman if they needed help with
anything. They said they did not.
Ortiz heard rustling coming from behind an area of shelving in the garden
center. Ortiz saw defendant kneeling between a shelving unit and a fence
separating the store's exterior. Defendant had multiple boxes of tools. Ortiz
asked defendant if he needed help, but he said he was waiting for a friend. When
Ortiz observed the tools, defendant said he put them there because he did not
want anyone else to buy them. Ortiz asked defendant to come out from behind
the shelving, but he did not move until Ortiz took out her cell phone, at which
point defendant became angry, approached Ortiz and demanded her phone.
Ortiz refused and defendant grabbed Ortiz and began to choke her using his arm.
Ortiz screamed for help and gasped for air until she lost consciousness. Ortiz
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remembered waking up on the ground, that her throat hurt and her phone was
missing. She went to the garden center register and called for help.
On May 3, 2017, defendant was indicted for first-degree robbery N.J.S.A.
2C:15-1(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1);
fourth-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2(a)(1) and
N.J.S.A. 2C:20-11(b)(1); and fourth-degree shoplifting, N.J.S.A. 2C:20-
11(b)(1). Co-defendant Rivera was charged with one count of fourth-degree
shoplifting, N.J.S.A. 2C:20-11(b)(1); and conspiracy to commit the same,
N.J.S.A. 2C:5-2(a)(1).
Defendant and co-defendant Rivera were tried before a jury on various
days in December 2017. At trial, the State introduced surveillance video that
showed defendant and Rivera load tools into a shopping cart and showed
defendant exit the store through the garden center shortly after the attack.
During the trial, the State also introduced text messages between defendant and
Rivera wherein defendant attempted to discourage Rivera from changing her
story or going to the police and threatened to implicate her if she cooperated.
The court allowed the jury to see the text messages because there was
independent evidence of a conspiracy based on defendant's and Rivera's actions
in the store. Defendant was convicted of second-degree robbery, simple assault,
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and shoplifting but acquitted of conspiracy to shoplift. Rivera was acquitted of
all charges. The judge sentenced defendant to an aggregate seventeen-year
extended term in prison with eighty-five percent parole ineligibility, N.J.S.A.
2C:43-7.2. This appeal followed.
On appeal, defendant raises the following arguments:
POINT [I]
THE TRIAL COURT ERRED IN ADMITTING INTO
EVIDENCE THE TEXT MESSAGES FROM CO-
DEFENDANT RIVERA BECAUSE THE
PROSECUTION FAILED TO ESTABLISH EACH OF
THE REQUIRED ELEMENTS OF THE CO-
CONSPIRATOR EXCEPTION TO THE HEARSAY
RULE; THE ADMISSION OF RIVERA'S TEXT
MESSAGES AS EVIDENCE AGAINST MR. VEIRA
VIOLATED DEFENDANT VEIRA'S DUE PROCESS
AND CONFRONTATION RIGHTS UNDER THE
FEDERAL AND STATE CONSTITUTIONS.
POINT [II]
THE TRIAL COURT COMMITTED PLAIN ERROR
IN NOT SEVERING THE TRIALS OF THE
DEFENDANTS. (Not raised below)
POINT [III]
DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
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I.
We begin by recognizing the deferential standard of review we apply
when we review a trial court's evidentiary rulings. State v. Morton, 155 N.J.
383, 453 (1998); State v. McDougald, 120 N.J. 523, 577-78 (1990). We only
reverse when the trial court abuses its discretion. State v. Nelson, 173 N.J. 417,
470 (2002); State v. Feaster, 156 N.J. 1, 82 (1998). If, in response to an
objection, the trial court did not properly analyze the evidence under the
applicable rules of admissibility, our review is plenary. State v. Lykes, 192 N.J.
519, 534 (2007).
Defendant argues the trial court admitted the text messages between
defendant and Rivera as a statement of a co-conspirator without independent
proof of concerted actions to support a conspiracy claim. Rule 803(b)(5) permits
a co-conspirator's statement to be admitted against all the other members of the
conspiracy where the "statement [was] made at the time the party and the
declarant were participating in a plan to commit a crime or civil wrong and the
statement was made in furtherance of that plan[.]"
To qualify for admissibility under the rule, the State
must meet the following conditions: (1) the statement
must have been made in furtherance of the conspiracy;
(2) the statement must have been made during the
course of the conspiracy; and (3) there must be
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"evidence, independent of the hearsay, of the existence
of the conspiracy and defendant's relationship to it."
[State v. Savage, 172 N.J. 374, 402 (2002) (quoting
State v. Phelps, 96 N.J. 500, 509-10 (1984)).]
"[T]he trial court must determine whether there is independent evidence
'substantial enough to engender a strong belief in the existence of the conspiracy
and of [the] defendant's participation.'" Id. at 403 (alteration in original)
(quoting Phelps, 96 N.J. at 519). "[T]he prosecution [must] demonstrate[] by a
fair preponderance of evidence that the conspiracy existed and that the defendant
participated in it." Phelps, 96 N.J. at 518. "Thus, if the hearsay evidence is
corroborated with sufficient independent evidence that engenders a strong sense
of its inherent trustworthiness, it is admissible under the co-conspirator
exception." Savage, 172 N.J. at 403.
A "conspiracy continues until the object of the conspiracy is fulfilled [.]"
State v. Cherry, 289 N.J. Super. 503, 523 (App. Div. 1995). "[A] conspiracy
may continue beyond the actual commission of the object of the conspiracy if it
is shown that a conspirator enlisted false alibi witnesses, concealed weapons, or
fled in order to avoid apprehension." Savage, 172 N.J. at 403.
[S]tatements relating to past events may be admissible
if they are "in furtherance" of the conspiracy and "serve
some current purpose, such as to provide cohesiveness,
provide reassurance to a co-conspirator, or prompt one
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not a member of the conspiracy to respond in a way that
furthers the goals of the conspiracy."
[Ibid. (quoting State v. Taccetta, 301 N.J. Super. 227,
253 (App. Div. 1997)).]
Here, the text exchange between defendant and Rivera reflected an
attempt on defendant's part to assure Rivera that they would not face any
consequences if they kept their story cohesive. Defendant texted Rivera, "That's
cool, cuz. We was all involved. We all take our chances." Rivera responded,
"It was all your idea. I didn’t even wanna to go there . . . . I didn't wanna have
parts in this shit, period, and I didn't." She also stated, "You stole the tools [to]
make yourself some money. You was doing that shit for yourself." Defendant
retorted, "You pushed the cart, you handed me all the shit[,]" to which Rivera
responded, "Right. You made me push the cart. I didn't know what I was doing.
And, I pushed the cart because my daughter was in it."
Rivera also expressed concern she might face punishment for defendant's
actions, saying, "You did it. It was your idea. Suffer the consequences." "I'm
scared though . . . [b]ecause I got a feeling I'm going to jail." Defendant
responded, "We ok. Just chill[]" and "Just relax." "[Y]ou can't break" and
"You're going to fold if . . . you don't pull yourself together."
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The text messages meet the first two prongs of the Rule 803(b)(5) test:
defendant's attempt to convince Rivera to maintain a cohesive story indicated it
was at least plausible the two agreed to steal the tools. The security video
provided independent corroboration for the existence of an alleged conspiracy.
The security video shows defendant, Rivera and another woman pushing a cart
and filling it with merchandise. Later, the women were seen standing by an
empty cart. What the security footage shows is consistent with the text messages
where Rivera admits she pushed the cart and defendant stole the tools. Viewing
this evidence together, the judge did not abuse his discretion by admitting the
text messages.
II.
Because defendant did not move to sever his trial from Rivera's under Rule
3:15-2(c), we review his second argument under the plain error standard. R.
2:10-2. Plain error is an error "clearly capable of producing an unjust result."
State v. Prall, 231 N.J. 567, 581 (2018) (quoting R. 2:10-2).
Rule 3:7-7 allows two or more defendants to be tried jointly "if they are
alleged to have participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses." "When the crimes
charged arise from the same series of acts, and when much of the same evidence
A-2898-17T4
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is needed to prosecute each defendant, a joint trial is preferable." State v.
Brown, 118 N.J. 595, 605 (1990). "Joint trials foster an efficient judicial system,
and spare witnesses and victims the inconvenience and trauma of testifying
about the same events two or more times." State v. Sanchez, 143 N.J. 273, 282
(1996) (citations omitted).
Separate trials are necessary when the defendants' "defenses are
antagonistic and mutually exclusive or irreconcilable." Brown, 118 N.J. at 605.
"[T]he potential for prejudice inherent in the mere fact of joinder does not of
itself encompass a sufficient threat to compel a separate trial." State v. Scioscia,
200 N.J. Super. 28, 42 (App. Div. 1985). "The test for granting severance,
however, is a rigorous one." Brown, 118 N.J. at 605-06. Severance is
appropriate "when a defendant's and a co-defendant's defenses are not simply at
odds, but are 'antagonistic at their core,' meaning that they are mutually
exclusive and the jury could believe only one of them." State v. Weaver, 219
N.J. 131, 149 (2014). "'Mutual exclusivity' demands that the jury's universe of
choices be limited to two: the jury can believe only either one defendant or the
other." Brown, 118 N.J. at 606 (emphasis in original).
In his opening statement, Rivera's lawyer told the jury that Rivera went to
Home Depot with the intention of buying tools to fix up her home and asserted
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9
there was no agreement to commit shoplifting. During summation, Rivera's
counsel argued she was at Home Depot with defendant when he loaded tools
into a cart and possibly tried to shoplift them. When she found out what was
going on, she became frustrated and left.
Defendant argued he was innocent of assault, robbery and conspiracy but
did not deny the attempted shoplifting. His lawyer argued, "[defendant] made a
stupid decision . . . when he attempted to shoplift from Home Depot. And when
he got caught attempting to shoplift, he fled, but he did not assault or rob
[Ortiz]."
Defendant argues on appeal that Rivera's defense was antagonistic to his.
We disagree. Rather, Rivera's defense was mutually beneficial to defendant. If
the jury believed Rivera, it necessarily had to acquit defendant of the conspiracy
charge. Moreover, whether the jury believed Rivera had no bearing on
defendant's defense to the assault and robbery charges.
We recognize both defendants pointed fingers at each other during the
trial, but we do not consider these "defenses that are antagonistic at their core."
Ibid. (quoting United States v. Berkowitz, 662 F.2d 1127, 134 (5th Cir. 1981)).
"The mere existence of hostility, conflict, or antagonism between defendants is
not enough." Ibid. "The fact that one defendant seeks to escape conviction by
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placing guilt on his or her co-defendant has not been considered sufficient
grounds for severance." Ibid.
III.
When we review a sentence, we do not substitute our own judgment for
that of the sentencing court. State v. Natale, 184 N.J. 458, 489 (2005). We limit
our inquiry to whether the sentencing guidelines were followed, was there
competent and credible evidence supporting the application of the guidelines,
and whether the sentence shocks the judicial conscience. Ibid.
The sentencing judge found aggravating factors: three, the risk defendant
will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, prior criminal record,
N.J.S.A. 2C:44-1(a)(6); and nine, need for deterrence, N.J.S.A. 2C:44-1(a)(9).
The judge found mitigating factor three, defendant acted under strong
provocation, N.J.S.A. 2C:44-1(b)(3). With respect to mitigating factor three,
the judge stated he was "going to give him the benefit of mitigating factor three,
but I'm not weighing it heavily," as he did not find strong compulsion but
thought the theft might have been to support defendant's drug habit. The
sentencing court reviewed defendant's criminal history and noted he was a multi-
state offender, though this case was defendant's first New Jersey conviction.
Defendant was subject to an extended term sentence with a range of five-to-
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twenty years. We discern no error in the application of the guidelines and the
sentence imposed does not shock the judicial conscience.
Affirmed.
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