State v. Mark Thomas Bourne, unpublished opinion, App. Div. Docket No. A-3889-07T4 (June 30, 2010) – “We reverse defendant’s convictions for third degree theft and remand….
It is clear that the judge erred in molding the jury’s verdict from guilty of two counts of fourth-degree theft to two counts of guilty of theft in the third-degree…. The court … directed the jurors that if they found defendant guilty of theft, then they were required to determine the value of the property taken, and whether the value of the property had a value less than $200, between $200 and $500, or between $500 and $75,000. The jurors were given no instruction on the elements of third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d), and they concluded that defendant was guilty of theft and that the property involved had a value of at least $200 but less than $500, which is a crime of the fourth degree. N.J.S.A. 2C:20-2b(3). After the jury was discharged, the State urged the judge to enter convictions on two counts of third-degree theft, contending that the evidence compelled the conclusion that these thefts were thefts from the person…. The trial judge, observing that theft from the person is a crime of the third degree, agreed…. The State suggests that this court should deem harmless the omission of a jury instruction on a fact that, as a matter of constitutional imperative, must be found by the jury beyond a reasonable doubt. We reject that argument. What the judge did, at the State’s urging, was the equivalent of directing a verdict of guilty. That is not permitted…. [T]he State’s reliance on the harmless error doctrine in this case is misplaced. Here, the State is the party that failed to take action before its case was submitted to the jurors without any reference to theft from the person. It is the State that failed to ask the judge to submit the case to the jury on that theory. The State did not raise the issue until the jury rejected the State’s theory for theft in the third degree based upon the amount involved. At that point, it was too late for the State to correct its course. The doctrine of plain error does not favor the State in this instance.”