STATE OF NEW JERSEY v. KEVIN L. JILES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3632-07T43632-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN L. JILES,

Defendant-Appellant.

________________________________________________________

 

Submitted May 18, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-09-0947.

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Kevin Jiles was convicted of second-degree possession of a firearm, having previously been convicted of aggravated assault, N.J.S.A. 2C:39-7(b)(1). After the verdict was returned, defendant pled guilty to the single count contained in a separate indictment, fourth-degree failure to register as a convicted sex offender, N.J.S.A. 2C:7-2(d). Defendant was sentenced to an eight-year term of imprisonment with a five-year period of parole ineligibility on the firearm offense, and a concurrent twelve-month term on the registration conviction.

He raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S R. 3:18-1 MOTION FOR JUDGMENT OF ACQUITTAL ON THE POSSESSION OF A .38 CALIBER HANDGUN.

POINT II

THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY, REQUIRING A REVERSAL OF DEFENDANT'S CONVICTION ON THE VIOLATION OF N.J.S.[A.] 2C:39-7(b). (Not raised below)

A. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY THAT EITHER POSSESSION OF THE KEL-TEC RIFLE AND/OR A HANDGUN WOULD SATISFY THE POSSESSORY ELEMENT IN THE VIOLATION OF N.J.S.[A.] 2C:39-7(b), RESULTING IN A VERDICT THAT MAY NOT HAVE BEEN UNANIMOUS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE UNITED STATES AND STATE OF NEW JERSEY CONSTITUTIONS.

B. THE TRIAL COURT'S INSTRUCTION ON CONSTRUCTIVE POSSESSION WAS INADEQUATE THEREBY WARRANTING A REVERSAL.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED DEFENDANT TO AN UNREASONABLE TERM OF YEARS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The testimony at trial revealed that Detective Michael Kruchinsky of the Trenton police department was on canine patrol duty at 6:00 p.m. in the evening of April 17, 2005. Earlier that day, at roll call, Kruchinsky and his fellow officers received the description of a vehicle, a gold Cadillac bearing a New Jersey license plate, that was wanted for further investigation. Police officer Lawrence Davis, also on canine patrol, observed the Cadillac directly behind Kruchinsky's vehicle and radioed the information to him.

Kruchinsky pulled over, allowed the Cadillac to pass his patrol car, and then pulled back into traffic behind it. As he did, the Cadillac pulled to the curb, and Kruchinsky pulled his car behind it. The driver of the Cadillac, later identified as defendant, had already exited the car, his arm tucked close to his body, and began to run down an alley next to 1230 East State Street. As Kruchinsky followed on foot, the passenger door of the Cadillac opened and another man, later identified as Derryan Dennis, exited. Kruchinsky drew his weapon, radioed for assistance, ordered Dennis to the ground, and intended to "pat him down for any weapons . . . ." As he approached him, however, Dennis fled, Kruchinsky chased him on foot, and eventually apprehended him.

Kruchinsky broadcast a description of defendant and his general direction of flight, and then returned to the Cadillac. On the "passenger's front floorboard," he discovered "a black-colored revolver . . . ." Kruchinsky canvassed the area, and, after speaking to one of the residents, "went directly to the rear of 1230 East State Street." In the backyard, he discovered a 9 mm. Kel-Tec "rifle with a folding stock" on the lawn.

Sergeant Ivan Mendez arrived at the scene and recovered that weapon, as well as defendant's jacket that was found in the backyard of 1232 East State Street. Davis, with the help of his canine partner, responded to the scene and "tracked the area" looking for defendant, who was still at large. Davis located defendant hiding under a car in a nearby "junkyard," and he was apprehended and identified by Kruchinsky as the driver of the Cadillac.

The State called Dennis as a witness. He had pled guilty to possession of a firearm in this case, as well as "another charge" involving "[p]ossession of a weapon and drugs." Dennis admitted being in the Cadillac with defendant; they were driving to Garfield Park and both had guns with them. Defendant showed Dennis the Kel-Tec, which was slung over his shoulder, when defendant picked Dennis up at his house; Dennis pulled his gun from his pocket and showed it to defendant. When the car was pulled over by the police, Dennis put his handgun under the passenger's seat and fled.

On cross-examination, the following exchange took place:

Q [by defense counsel]: Is the truth that the handgun in the car that was found was yours?

A: Yes.

Q: Did [defendant] have anything to do with that at all?

A: No.

Q: That wasn't his gun?

A: The handgun was mine.

Q: He didn't have any possession or control over that handgun at all, did he?

A: No.

Q: Did he ever touch it?

A: No.

II.

(a)

After the State rested, defendant moved "for [a] judgment of acquittal as to that portion of the indictment charging [him] with . . . possession of a .38 caliber handgun." Referencing the applicability of the statutory presumption contained in N.J.S.A. 2C:39-2, the judge denied the motion, finding that "there [wa]s a reasonable basis to . . . keep the .38 caliber handgun as part of the charge." Defendant contends that there was insufficient evidence to prove beyond a reasonable doubt that he constructively possessed the .38 caliber handgun found on the floorboard of defendant's car, and his motion for acquittal, Rule 3:18-1, should have been granted. We disagree.

When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 459 (citation omitted).]

We review the decision of the trial judge de novo applying the same standard. See State v. Bunch, 180 N.J. 534, 549 (2004).

"A person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004) (quoting State v. Schmidt, 110 N.J. 258, 270 (1988)). Pursuant to N.J.S.A. 2C:39-2(a),

When a firearm, . . . is found in a vehicle, it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle, it shall be presumed to be in the possession of all, except under the following circumstances:

(1) When it is found upon the person of one of the occupants, it shall be presumed to be in the possession of that occupant alone . . . .

We have construed the statute as permitting "the jury [to] be advised that it can draw an inference if it finds it more probable than not that the inference is true." State v. Bolton, 230 N.J. Super. 476, 480 (App. Div. 1989). In this case, the jury was properly instructed regarding the permissible inference that could be drawn as to the handgun found on the floor of the Cadillac. See Model Jury Charge (Criminal), "Possession of Firearms, Weapons, Destructive Devices, Silencers or Explosives in a Vehicle" (1993) (providing instructions on the permissive inference).

Defendant argues that there was no evidence demonstrating that he had "control or dominion" over the handgun from the time Dennis entered the Cadillac until the time defendant fled from the police. The State, however, was entitled to the benefit of the statutory inference; any testimony from Dennis to the contrary was appropriately ignored under the Reyes standard. Therefore, defendant's motion for acquittal was properly denied.

(b)

Defendant next challenges two aspects of the jury charge. First, he contends that in conjunction with the verdict sheet, the judge's charge "instructed the jury that either possession of the Kel-Tec rifle and/or a handgun would satisfy the possessory element [of the crime], resulting in a verdict that may not have been unanimous . . . ." Second, defendant contends the judge's instructions on constructive possession were "inadequate." Since defendant did not object to either portion of the charge, or to the verdict sheet, we consider the claim under the plain error standard. See R. 2:10-2 (defining plain error as that which must be "clearly capable of producing an unjust result"). We find neither argument persuasive.

During her charge, the judge instructed the jury that the State needed to prove that the Kel-Tec rifle "and/or" the .38 caliber handgun was a firearm; and "that defendant purchased, owned, possessed or controlled one or both" of them. Prior to the charge, the prosecutor specifically requested that the verdict sheet pose separate questions to the jury as to each weapon, because there must "be a unanimous decision of the jury that they f[ou]nd one of the weapons" was possessed by defendant.

As a result, the verdict sheet first asked a general question -- whether defendant was not guilty or guilty of "own[ing], possess[ing], or control[ling] a firearm, to wit: a Kel Tec rifle and/or a handgun . . . ." The jury responded in the affirmative. The verdict sheet instructed the jury to answer the next two sub-parts of question one, which asked if it "unanimously f[ound]" that defendant possessed the Kel Tec, to which the jury answered "yes," and if it "unanimously f[ound]" he possessed the handgun, to which the jury also answered "yes." When she reviewed the verdict sheet with the jury prior to its deliberations, the judge emphasized that any answer to the subparts needed to be unanimous, and also provided the general instructions regarding the necessity of unanimity of verdicts in criminal cases in the body of the charge. See R. 1:8-9.

"It is well understood that courts should provide 'specific unanimity' instructions -- that is, impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict -- when there is a specific request for those instructions and where there exists a danger of a fragmented verdict." State v. Gandhi, 201 N.J. 161, 192 (2010) (quoting State v. Parker, 124 N.J. 628, 637 (1991)). In our view, while the judge's initial use of the phrase "and/or" may have been problematic, any confusion that otherwise might have resulted was clarified beyond cavil by the specific instructions she gave in reviewing the verdict sheet, combined with the actual wording of the verdict sheet, which made it clear that the jury needed to consider the question of possession as to each firearm and reach a unanimous verdict as to each. In short, there is nothing in the record that serves to undermine our confidence in the jury's ability to understand the requirement that it reach a unanimous verdict, or that the instructions and verdict sheet brought about an unjust result. See Ghandi, supra, 201 N.J. at 195.

Defendant's claim that the judge's instructions on constructive possession were inadequate is without sufficient merit to warrant discussion in this opinion. See R. 2:11-3(e)(2). The jury understood from the argument of both attorneys that the State's contention was that defendant constructively possessed the handgun, and that he actually possessed the Kel-Tec rifle but discarded it as he ran from the police. The judge read the model charge verbatim and there was no request for anything further. We find no basis to reverse on these grounds.

(c)

Finally, defendant contends the judge "fail[ed] to appropriately weigh the aggravating and mitigating factors and hence sentenced [him] to an unreasonable term of years." We find no merit to the argument. See R. 2:11-3(e)(2).

Defendant concedes that the five-year period of parole ineligibility was mandated by N.J.S.A. 2C:39-7(b)(1). The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), all of which were supported by the record, no mitigating factors, and sentenced defendant to eight years which was in the acceptable range for a second-degree crime. See N.J.S.A. 2C:43-6(a)(2) (providing for an ordinary term of imprisonment between five and ten years for a second-degree offense).

Defendant claims that the judge should have found mitigating factor one -- his "conduct neither caused nor threatened serious harm"; two -- he "did not contemplate that his conduct would cause or threaten serious harm"; and eleven -- his "imprisonment . . . would entail excessive hardship to . . . his dependents." N.J.S.A. 2C:44-1(b)(1), (2), and (11).

Obviously, defendant's conduct -- illegally possessing two firearms -- posed a serious risk of harm to others. Defendant had two sons, but admitted that he had no means of financial support and was more than $28,000 in arrears on child support obligations. There is no basis to disturb defendant's sentence. See State v. Cassady, 198 N.J. 165, 180 (2009).

Affirmed.

 

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A-3632-07T4

July 21, 2010