STATE OF NEW JERSEY v. DOUGLAS PHILPOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1514-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS PHILPOT,

Defendant-Appellant.

___________________________________________

December 17, 2010

 

Submitted November 8, 2010 - Decided

 

Before Judges Kestin and Newman.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 12-09.

 

Basile & Testa, P.A., attorneys for appellant (Justin R. White, on the brief).

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Douglas Philpot appeals from his de novo conviction in the Law Division, on appeal from the Vineland Municipal Court, for the disorderly persons charge of possessing a small amount of marijuana in violation of N.J.S.A. 2C:35-10a(4), and for obstruction of the administration of law in violation of N.J.S.A. 2C:29-1. By way of sentence, the court imposed fines, costs, penalty assessments, and fees totaling $1,478, payable at the rate of $25 per month. Finding a "hardship exemption" applicable, the suspension of defendant's driver's license imposed by the municipal court was "vacated" by the Law Division judge. We now reverse.

The relevant testimony before the municipal court disclosed the following. Defendant was approached by Vineland Police Captain Rudy Beu in a municipal parking lot because he appeared to be a "suspicious person." When Beu "asked him what he was doing in the municipal lot," defendant replied that he was "taking pictures of police cars." When Beu asked him why he was doing that, defendant, according to the Captain, replied: "pay back." When Beu asked for an explanation, defendant "became belligerent and started using obscenities." In the Captain's opinion, defendant "was attempting to provoke an altercation."

Officer Joseph Pagano, who had arrived in the meantime, took over the questioning, asking defendant for his name. Pagano testified that he intended "[t]o follow up with an investigation of why [defendant] was in the parking lot," and that he had no intent at the time to arrest defendant. Pagano stated that defendant responded to the question regarding his name: "I don't have to tell you shit," whereupon Pagano asked for his identification. He told defendant that "he needed to tell me his name or he would be in violation of 2C."

According to Pagano, defendant started to walk away, and Pagano advised him "that he was not free to leave at this time." Defendant's conduct had made Pagano "[s]uspicious that something was going on that shouldn't be going on." When Pagano said, again, that he "needed to see [defendant's] identification and he was not yet free to leave, that I was conducting an investigation," defendant responded, according to Pagano: "I don't have to tell you a fuckin' thing." Pagano testified that he then placed defendant under arrest and brought him to the report room of police headquarters.

Pagano described what took place next: "We empt[ied defendant's] pockets and tr[ied] to identify him." Pagano testified that Officer Smith, on duty in the report room, "advised [Pagano] that he had arrested [defendant] that night and signed complaints against him." The officers "removed a badge holder off of [defendant] that had a gold badge on it, bail bondsman badge of some type." Pagano testified that on close inspection after the "Velcro type holder" was opened "there was a piece of green like vegetation on it which the officers recognized as marijuana." A field test was conducted and the vegetation tested positive for marijuana. The substance "was sealed in a[n] evidence bag." A State Police lab test confirmed the substance to be marijuana.

Defendant, appearing pro se, testified. He stated that Officer Smith had given him a jaywalking ticket at 4:00 a.m. that morning "without a single car" in the vicinity, which defendant thought

was a little ridiculous[,] so I decided to take matters into my own hands as far as collecting evidence against the Vineland police officers . . . turning without their signals and all stuff like that. I never entered any parking lot at all the entire time. All I had to do was sit on the . . . sidewalk right by the police station and I had more than 10 violations in the first 15, 20 minutes 'cause it was a shift change going on. Then I saw Smith was getting ready to leave I guess, was in his personal vehicle. He was getting ready to drive the wrong way up a one way street to cut off the light on his way home when his shift was over. And I was right there with . . . video on my phone ready to take a picture of it because . . . it's undeniable proof and the charges have to stick . . . . So that was my intention of what I did. And I told Smith that I was going to be doing that . . . . And he immediately . . . put his vehicle in reverse and peeled wheels to the back of the parking lot. Sat there. Called inside and . . . told them that I was taking pictures of his personal vehicle or whatever. And that's when

At this juncture, a hearsay objection was interposed, but the judge allowed the testimony after defendant said: "I'm testifying to what he told me himself, just like he told me he wasn't going to come to court and he hoped the charges were dismissed."

Defendant's continuing testimony essentially corroborated that of Beu and Pagano, adding that Beu said: "I'm gonna teach you to mess with my department." Defendant acknowledged having "let go with every . . . bad word that [he] ever heard in [his] entire life . . . because that was [his] only means of fighting back." However, he denied ever saying he was there for "payback." He also stated that, after police personnel had erased his cell phone pictures, he returned "to the police station to gather more evidence and [he] found more than 25 police cars with bad inspections of more than two years, numerous traffic violations and stuff like that." He recounted further police surveillance incidents.

Defendant's request for production of the evidence itself, the marijuana, was denied as "outside the time limit." The court also denied his application for dismissal of the charge on the basis that the arresting officer had not been produced. Defendant went on to describe the marijuana as a "speck . . . that's about half the size of a flea." The lab report quantified it as a "trace" amount.

In a written opinion of September 10, 2009, the Law Division judge, citing among other sources, State v. Pena, 178 N.J. 297, 304-05 (2004), recognized that the State had to prove beyond a reasonable doubt that defendant knew or should have been aware that the green vegetation found in the Velcro badge holder was marijuana and that the substance was there. The court acknowledged that defendant had "no burden to prove that he did not knowingly possess the marijuana." Indeed, the judge stated that "[d]efendant did not admit to possessing the marijuana" nor did the police find any other drugs, "pipes, packaging material[s], or other drug paraphernalia." Nor did the police "claim to smell an odor of marijuana emanating from defendant." The court indicated that "[n]o one else implicated defendant." The sum of the evidence was the "speck of marijuana in [the] badge holder."

The trial court in this de novo proceeding found the officers believable, unlike defendant, who had offered various versions of how the marijuana may have gotten into the badge holder. The court indicated, for example, that defendant claimed that he had to wrestle bail jumpers on the floor and the Velcro could have picked up any marijuana while he was wrestling with detainees. The court rejected this explanation and found defendant's credibility to be highly suspect.

Although only a trace amount of marijuana was found, the court believed it could reasonably consider what happened to the rest of the marijuana before it was confiscated by the police. The court, relying on State v. Wells, 336 N.J. Super. 139, 145 (Law Div. 2000), stated that, though marijuana was found in only a trace amount, the question of "what happened to the rest . . . before it was confiscated by the police" "could reasonably be asked." The court did not make a specific finding that the State had established beyond a reasonable doubt that defendant knowingly and purposely possessed the marijuana.

In finding that defendant had obstructed the administration of law, the court determined that "Beu and Pagano were performing a legitimate 'official function' when they undertook an investigatory stop of the defendant as they began the investigation of the suspicious person dispatch." The court indicated that defendant "attempted to walk away while being questioned despite being commanded to remain." The situation escalated, the court continued, when defendant became "overtly belligerent and hurl[ed] multiple obscenities at the officers." The court found that "[d]efendant failed to physically comply with an officer's instruction by attempting to walk away." As the court noted, citing State v. Crawley, 187 N.J. 440, 460, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), "[f]leeing from an investigatory stop constitutes obstruction." Accordingly, defendant was convicted of obstruction.

On appeal, defendant raises the following issues for our consideration:

POINT I

 

THE LAW DIVISION ERRED IN FINDING THAT THE STATE CARRIED ITS BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT DOUGLAS PHILPOT KNOWINGLY POSSESSED MARIJUANA.

 

POINT II

 

THE LAW DIVISION ERRED IN FINDING THAT THE DEFENDANT ENGAGED IN CONDUCT CONSTITUTING OBSTRUCTION OF THE ADMINISTRATION OF LAW.

 

N.J.S.A. 2C:35-10a(4) provides in relevant part:

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance . . . . Any person who violates this section with respect to:

 

. . . .

 

(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants . . . is a disorderly person.

 

Defendant denied that he knowingly possessed marijuana. As the trial judge noted, no other drugs were found. Only the trace of marijuana in the badge holder was located. The trial court found defendant not to be credible. However, in the absence of any other indicia of marijuana, or any paraphernalia associated with marijuana, the court was in no position to draw the inference as in the Wells decision that "it was previously used by either the defendant[] or some other party." Wells, supra, 336 N.J. Super. at 145.

Fundamental to the protections accorded to criminal defendants, by both the federal and New Jersey constitutions, is the requirement that the State prove each and every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . charged."); State v. Thomas, 132 N.J. 247, 253 (1993); see also State v. Vick, 117 N.J. 288, 293 (1989) (per curiam) (requirement that the State prove "essential elements of the offense charged" beyond reasonable doubt" is so basic and so fundamental that it admits of no exception, no matter how inconsequential the circumstances"); State v. Ingenito, 87 N.J. 204, 213 (1981) ("The requirement that a defendant be presumed innocent until proven guilty beyond a reasonable doubt has a status in our criminal law of primordial origin." (citation omitted)). Any conviction that results from evidence insufficient to prove a defendant's guilt beyond a reasonable doubt is manifestly unjust and a clear miscarriage of justice under the law.

Here, the trial court did not make an express finding that the State had proved beyond a reasonable doubt that defendant knowingly possessed the marijuana. Our review of the record convinces us that the proofs were deficient in establishing guilt beyond a reasonable doubt. Defendant did not have the burden to explain how the trace amount of vegetation was found in the Velcro badge holder. In the absence of any other evidence to support the State's proofs, we are persuaded that what little the State presented failed to satisfy the beyond-a-reasonable-doubt standard.

With regard to the obstruction of the "administration of law or other governmental function" charge, N.J.S.A. 2C:29-1a sets forth the elements of that offense as follows:

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

 

"[T]he obstruction must be carried out in [the] manner [specifically] described in the statute," State v. Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005), which, in this instance, was found to be "by means of flight."

Here, defendant refused to provide information relating to identification to the police, unaccompanied by "any violent or physical interference with the officer's duties." Camillo, supra, 382 N.J. Super. at 117. We have recognized that "merely refusing to answer the officer's questions is not a criminal act." Ibid.

The trial court's decision was grounded on a finding that "[d]efendant failed to physically comply with an officer's instruction by attempting to walk away." The testimony in the record does not support that finding. Defendant started to walk away when being questioned by Officer Pagano. The officer told defendant he was not free to leave and defendant complied by remaining, although he continued to direct obscenities at the officers. Defendant never fled from the parking lot. Defendant was then placed under arrest.

The critical element that he attempted to leave the scene to bring defendant's conduct under the obstruction provision "by means of flight" is missing. Crawley, supra, 187 N.J. at 460, where it was found that fleeing from an investigatory stop constituted obstruction, is distinguishable. Defendant did not attempt to flee during the investigatory stop, but complied with the officer's request when told that he was not free to leave. With the failure of this necessary element of the offense, the obstruction of law violation was not established.

Lastly, we would be remiss if we did not recognize the efforts put forth on defendant's behalf by his pro bono counsel, Justin R. White, Esq. of the Basile & Testa law firm, whose representation was performed in the finest tradition of the bar.

Reversed and remanded for entry of judgment of acquittals.