STATE OF NEW JERSEY v. CHARLES J. KUPCHA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6099-04T46099-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES J. KUPCHA,

Defendant-Appellant.

_______________________________________

 

Submitted August 30, 2006 - Decided September 6, 2006

Before Judges Yannotti and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 04-10-00784-S.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Vincent C. Malfitano, Assistant County Prosecutor; of counsel and on the brief).

PER CURIAM

Defendant Charles J. Kupcha was charged in Gloucester County Indictment No. 04-10-00784-S with the knowing violation of a domestic violence restraining order, N.J.S.A. 2C:29-9 (count one); possessing a crossbow, under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d (count two); possession of a crossbow for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and making terroristic threats against Karen Shelton (Shelton), N.J.S.A. 2C:12-3b (count four). Defendant appeals his convictions on count two and certain lesser included offenses of those charged in counts three and four. We affirm.

I.

Defendant's convictions arose from the following facts, which are drawn from the evidence presented at trial. Shelton and defendant were divorced on March 3, 2003. On January 1, 2004, Shelton was living with her mother and her step-father Michael Quinn (Quinn) at their home in Williamstown. At about 1:15 or 1:30 a.m., Shelton returned home. She had been out celebrating New Year's Eve and she drove her car into the detached garage. When she drove into the garage, Shelton noticed that the lights were not on. Shelton said that this was unusual because she always leaves the outside lights on. Shelton exited the vehicle and removed certain packages from the car.

Shelton stated that, out of the corner of her eye, she saw something behind the garage. She thought it was her step-father. However, Shelton suddenly saw defendant "come charging at [her] with a quilt over his head and a crossbow in his hand and a crazed look in his eye." She screamed. According to Shelton, defendant grabbed her arm. Quinn saw what was happening and came out of the house. Quinn and defendant struggled. Defendant tried to get into the house. Shelton's mother activated a "really loud" alarm and defendant left the premises.

Shelton identified the quilt, which Shelton said defendant had taken at the time the couple was divorced. She said when defendant came charging at her, he had the quilt draped over his head. Defendant left the quilt behind when he fled the scene. Shelton also said she was positive that the quilt was left by the defendant in the yard after the incident.

Shelton also stated she was sure that defendant had the crossbow in his hand at the time of the incident. Shelton said defendant pointed the crossbow at her but she did not know if it was loaded or not. She testified, "I couldn't tell at that point. I didn't want to look right at it because I thought if I did I would, you know, would get shot, so I didn't." Shelton stated she was positive defendant was the person who charged at her. She said she saw defendant's face and heard him speak.

On cross examination, Shelton asserted that there were four lights in or around the garage. All of the lights were out. Shelton said one light was broken and the other light bulbs had been unscrewed in the sockets. Shelton said she would require a ladder to change the floodlights on the top of the garage. Shelton also said the garage was locked when she arrived home. Shelton conceded that, when she was questioned by the police, she told the police defendant had not touched her. She stated, "Well, I didn't realize it until later. I was so scared I forgot that part. And then after I thought about it I realized that he had." Shelton asserted this "was the only part that [she] left out."

Shelton was asked about the quilt. She said she kept the quilt as evidence. Shelton said she thought she called the police the next day to tell them about the quilt but she was not "100 percent sure." Shelton conceded the police did not come to get the blanket until several months later. Shelton also said that the crossbow had not been left behind.

Lee Harris (Harris), an officer with the Monroe Township Police Department (MTPD), testified that he responded to the scene in the early morning hours of January 1, 2004. Harris took statements from Shelton and Quinn. Thereafter, he located defendant in a motel. Harris informed defendant of his rights under Miranda. Defendant gave a statement to the police. Defendant told Harris he had not been at Shelton's residence the previous night. He said he walked to Turnersville and then hitchhiked to Camden. Harris conducted a search of the motel room but did not find a crossbow. Defendant told Harris he sold the crossbow several weeks before to a man at a bar. However, he had no proof of sale and did not give the police the name of the man to whom he sold the crossbow.

On cross examination, Harris said Quinn told him that he heard defendant say that he never wanted to hurt Shelton, he only wanted to speak with her. Harris admitted he did not observe any injuries on Quinn's arms, although on re-direct, Harris said he did not search Quinn for marks or ask that he remove his shirt. Harris said he observed a blanket lying in the yard by the back steps. He identified the blanket retrieved from Shelton's home as the blanket he saw on the night of the incident. However, Harris did not take possession of the blanket at the time.

Harris was asked about the lights in the rear of the Shelton home. He said there were four lights on or near the garage. Harris saw a broken light on the night of the incident but he could not recall which of the lights was broken. Harris said he did not dust for prints around the lights. He also did not take the broken light bulb with him.

Quinn testified as well. He stated he was awake before the incident. When Shelton arrived, he went out to the deck to ask if she needed any help. Shelton did not need any help and, at this point defendant charged out after her with a crossbow. Quinn was sure it was defendant. Quinn added that defendant used a blanket to conceal the crossbow. Quinn also said he saw defendant grab Shelton. Defendant was pointing the crossbow at Shelton and he tusseled with Quinn. Quinn grabbed defendant and tried to hold him off. Shelton got loose and ran into the house. Defendant went past Quinn and ran towards the house. When defendant heard the alarm, he "just took off." Quinn described the crossbow as fiberglass, of a "greenish-type color."

Defendant did not testify but presented four witnesses in his defense. Kevin Karchar (Karchar), an officer in the MTPD, testified that he responded to Shelton's residence after the incident. Karchar said he did not see the blanket when he was at Shelton's residence. The police took the blanket into custody "sometime afterwards." It was logged in on November 1, 2004. Christine Silcox (Silcox), is defendant's niece. Silcox testified that defendant is a "fun uncle" and, in her opinion, he is not a violent person. Officer Anthony Pease (Pease) of the MTPD also responded to Shelton's residence after the incident. Pease testified he and Harris looked in the wooded area behind the house but they did not find the crossbow. Defendant's brother John Kupcha (Kupcha) also testified. Kupcha stated that, in his opinion, defendant is a nonviolent person.

The judge found defendant guilty on count one. Counts two through four were tried to a jury. The jury found defendant guilty on count two. On count three, the jury found defendant not guilty of possessing a weapon for an unlawful purpose, but guilty of the lesser included offense of attempting to cause or causing bodily injury to Shelton or attempting to put Shelton in fear of imminent serious bodily injury. In addition, on count four, the jury found defendant not guilty of making terroristic threats but guilty of the lesser included offense of engaging in offensive touching or alarming conduct with the purpose of alarming or seriously annoying Shelton.

On April 29, 2005, the judge sentenced defendant to a two-year term of probation on counts one and two. For the convictions on the lesser included offenses of the offenses charged in counts three and four, the judge imposed a one-year term of probation. Defendant was ordered to undergo a psychological evaluation, have no contract with Shelton and abide by all domestic violence restraining orders then in force. Defendant was ordered to provide a DNA sample. In addition, the judge imposed certain fines and penalties.

We note that defendant has not challenged the judge's finding that defendant was guilty of violating a domestic violence restraining order. Defendant's appeal is addressed solely to the charges tried to the jury. Defendant raises the following contentions:

POINT I:

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

POINT II.

THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE.

(NOT RAISED BELOW).

II.

We first consider defendant's contention that the judge erred in denying his motion to dismiss counts two and three because there was no proof that the crossbow had an arrow. Defendant asserts that, without the arrow, the crossbow did not fit the definition of a weapon under N.J.S.A. 2C:39-1r. We disagree.

Defendant was charged under N.J.S.A. 2C:39-5d, which provides that:

Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.

In addition, the word "weapon" is defined in N.J.S.A. 2C:39-1r to mean:

anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.

In our view, a crossbow is an object that is "readily capable of lethal use or of inflicting serious bodily injury." Ibid. Although there is no evidence that defendant was in possession of an arrow along with the crossbow itself, this does not mean that, at the time of the incident, defendant was not in possession of a "weapon" as that term is defined in N.J.S.A. 2C:39-1r. Indeed, the statute plainly states that a firearm will be deemed to constitute a weapon, even though it is not loaded, or otherwise lacks a component that renders its "immediately operable."

As the trial judge recognized, there is no valid distinction between an unloaded firearm and crossbow without the arrow. Both objects are not "immediately operable" but both are "readily capable of lethal use or of inflicting serous bodily injury." Ibid. We therefore conclude that the trial judge correctly determined that the evidence here was sufficient to support the charges in counts two and three.

Defendant also argues that the jury's verdict is against the weight of the evidence. We note, however, that defendant did not move in the trial court for a new trial on this basis. Under R. 2:10-1, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." However, in the interest of justice, we have determined to consider this contention. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).

A new trial may not be granted unless there was a miscarriage of justice under the law. R. 2:10-1. In Dolson v. Anastasia, 55 N.J. 2, 6 (1969), the Court stated that when ruling on a motion for a new trial on the ground that the jury's verdict is against the weight of the evidence, the object "is to correct clear error or mistake by the jury." Ibid. The judge's role is not to substitute his judgment for that of the jury "merely because he would have reached" a different conclusion. Ibid. Rather, the judge must canvass the record, "not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Ibid. (quoting Kulbacki v. Sobchinski, 38 N.J. 435, 445 (1962)).

Defendant argues that the verdict here was a miscarriage of justice because the State failed to present any evidence to show how a crossbow could be lethal without an arrow. Defendant argues that testimony that Shelton and Quinn saw a crossbow is insufficient to prove that the crossbow was a lethal weapon at the time of the incident. We disagree. Based on their common understanding and experience, jurors may reasonably infer that a crossbow without a arrow is a device "readily capable of lethal use or of inflicting serious bodily injury." N.J.S.A. 2C:39-1r. We are satisfied that the evidence presented at trial provided a reasonable basis for the jurors' conclusion that the crossbow at issue here was a weapon.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-6099-04T4

September 6, 2006