STATE OF NEW JERSEY v. J.T

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4036-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.T.,

Defendant-Appellant.

________________________________

April 28, 2011

 

Argued March 23, 2011 - Decided

 

Before Judges Fisher, Sapp-Peterson and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0076.

 

Benjamin P. De Sena argued the cause for appellant (De Sena & Petro, attorneys; Mr. De Sena, on the brief).

 

Gina Giordano, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Ms. Giordano, on the brief).

PER CURIAM

Defendant appeals from his conviction for second-degree possession of a weapon for an unlawful purpose, second-degree endangering the welfare of a child, and a lesser-included offense of simple assault. The primary issue is whether the inconsistent verdict on defendant's weapons conviction and acquittal of aggravated assault, pointing a firearm, is permissible. We affirm.

Defendant, a Jersey City Police Officer, lived with his girlfriend S.S., and their infant daughter, S.T. After S.S. did not return home from her bartending job and failed to answer defendant's phone calls, defendant left the apartment to look for her. Defendant found S.S. in her car, with a male friend, in the parking lot of the bar. Defendant became upset, yelled at S.S. and informed her that S.T. was home alone.

S.S. returned home to check on S.T. and found her alone in her crib.1 S.S. brought S.T. to her bedroom and they both fell asleep in S.S.'s bed. At approximately 4:30 a.m., defendant returned home drunk. The jury heard testimony that he grabbed S.S.'s hair, pulled her out of bed, threw her back onto the bed and began choking her. Defendant went to the closet, retrieved his service gun, pointed it at S.S.'s head while she was holding S.T., and pushed it into S.S.'s head several times. Defendant then struck S.S. in the left eye and pushed her into a full length mirror, causing an injury to her leg. The next morning, defendant attacked S.S. again, cutting her bottom lip.

Her boss advised S.S. to report the violence. She went to the police, was placed under oath, and received a telephonic temporary restraining order (TRO) against defendant. She also signed a certification that her statements were true, gave a formal victim statement, and reviewed and signed the statement. The police photographed S.S.'s injuries and asked for her permission to photograph the crime scene. S.S. consented. At the apartment the police observed a broken mirror and a clump of S.S.'s hair. Defendant was arrested. S.S. testified before the Grand Jury and confirmed her prior statements to the police.

S.S. changed her testimony, however, at trial. She testified that she attacked defendant and that he acted in self-defense. The State used her grand jury testimony at trial, as well as her statements to the judge when she applied for the TRO and her formal statement to the police as substantive evidence pursuant to N.J.R.E. 803(a)(1). The photographs taken at her apartment were also introduced into evidence.

After the verdict, defendant moved for a judgment of acquittal. Defendant argued he could not be convicted of possession of a weapon for an unlawful purpose since he had been acquitted of the underlying substantive offense of aggravated assault, pointing a weapon. The judge denied the motion. The judge found that defendant placed S.T. at risk of harm when he left the child unattended "with no definite idea as to when an adult would return." He concluded that defendant's actions therefore satisfied N.J.S.A. 2C:24-4a, endangering the welfare of a child, and that "sufficient evidence exists to enable a jury to find [the] State's charges have been established beyond a reasonable doubt."

The judge sentenced defendant to five years in prison with three years of parole ineligibility on the weapons conviction, concurrent to a five-year term on the endangering conviction and six months on the simple assault conviction.

On appeal, defendant raises the following points:

POINT ONE

A. THE TRIAL COURT IMPROPERLY CHARGED THE JURY AS TO COUNT THREE, N.J.S.A. 2C:39-4a, BY FAILING TO IDENTIFY FOR THE JURY THE "UNLAWFUL PURPOSE" ALLEGED BY THE STATE AND SUGGESTED BY THE EVIDENCE, AS A RESULT OF SUCH, THE CONVICTION SHOULD BE REVERSED

 

B. IN ADDITION, THE TRIAL COURT IMPROPERLY CHARGED THE JURY AS TO COUNT THREE, N.J.S.A. 2C:39-4a, ON TWO OCCASIONS, THAT IS, IN THE INITIAL CHARGE AND IN RESPONSE TO A SPECIFIC JURY QUESTION, AS TO THE DEFINITION OF "POSSESSION", AND, AS SUCH, THE CONVICTION FOR SAID OFFENSE SHOULD BE REVERSED

 

C. IN ADDITION, THE CONVICTION UNDER COUNT THREE FOR VIOLATION OF N.J.S.A. 2C:39-4a WAS INCONSISTENT WITH THE JURY'S ACQUITTAL OF THE DEFENDANT PURSUANT TO COUNT TWO OF THE INDICTMENT, WHICH CHARGED THE DEFENDANT WITH AGGRAVATED ASSAULT BY POINTING THE WEAPON AT [S.S.], AND WAS INCONSISTENT WITH THE JURY'S ACQUITTAL PURSUANT TO COUNT SIX, WHICH CHARGED THE DEFENDANT WITH ENDANGERING THE WELFARE OF A CHILD BY POINTING THE WEAPON AT S.S. WHILE SHE WAS HOLDING THE BABY. THUS THE CONVICTION FOR THIS CHARGE SHOULD BE REVERSED

 

POINT TWO

THE DEFENDANT'S CONVICTION PURSUANT TO COUNT 5, N.J.S.A. 2C:24-4, ENDANGERING THE WELFARE OF A CHILD, SHOULD BE REVERSED AS THE JURY VERDICT SHEET WAS NOT PROPERLY DRAFTED IN ACCORDANCE WITH THE STATUTE BEING CHARGED RESULTING IN ERROR JUSTIFYING REVERSAL OF THE CONVICTION

 

POINT THREE

THE DEFENDANT'S CONVICTION PURSUANT TO COUNT FIVE N.J.S.A. 2C:24-4 FOR ENDANGERING THE WELFARE OF A CHILD SHOULD BE REVERSED AS A CONVICTION FOR SAID CHARGE IS NOT SUPPORTED BY THE EVIDENCE. IN ADDITION, A CONVICTION UNDER SAID STATUTE FOR LEAVING A CHILD UNATTENDED FOR AT MOST 45 MINUTES SHOULD BE REVERSED AS A MATTER OF LAW, AS NOT INTENDED BY THE STATUTE

 

POINT FOUR

THE TRIAL COURT IMPROPERLY CHARGED THE JURY AS TO THE "FALSE IN ONE, FALSE IN ALL" INSTRUCTION AS REQUESTED BY DEFENSE COUNSEL, AS AGREED WITH THE COURT PRIOR TO THE JURY CHARGE, AND INSTEAD EFFECTIVELY INSTRUCTED THE JURY THAT IT NEEDED TO ACCEPT ONE OF THE TWO VERSIONS OF THE ALLEGED EVENTS PRESENTED BY THE EVIDENCE. AS A RESULT OF SAME, THE CONVICTIONS SHOULD BE SET ASIDE

 

POINT FIVE

THIS COURT SHOULD REVERSE THE CONVICTIONS AGAINST THE DEFENDANT AS A MATTER OF LAW AS NOT REASONABLY SUPPORTED BY THE EVIDENCE AT TRIAL AS THE STATE HAS FAILED TO PROVE THE CHARGES BEYOND A REASONABLE DOUBT

 

POINT SIX

THE TRIAL COURT IMPERMISSIBLY ALLOWED HEARSAY TESTIMONY AS TO PRIOR INCONSISTENT STATEMENTS OF THE PRIMARY WITNESS AGAINST THE DEFENDANT, S.S., AND PERMITTED THE PROSECUTOR TO REFER TO SAME IN HIS CLOSING STATEMENT AND THE COURT ALSO REFERRED TO SAME IN ITS CHARGE TO THE JURY. AS A RESULT, THE DEFENDANT'S CONVICTIONS SHOULD BE SET ASIDE

 

POINT SEVEN

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS PHOTOGRAPHS OF THE SCENE AS EVIDENCE AT TRIAL

 

POINT EIGHT

THE STATE HAS NOT COMPLIED WITH THE COURT RULES GOVERNING APPELLATE PRACTICE AND AS A RESULT APPELLANT'S APPENDIX DOES NOT CONTAIN THE STATE'S EVIDENTIARY EXHIBITS

We have carefully reviewed the record and have considered the arguments of counsel and conclude that defendant's arguments in Points Two to Eight are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(2).

We focus on defendant's weapons conviction and his acquittal for pointing a firearm. Defendant contends that the judge failed to properly charge the jury concerning the "unlawful purpose" and "possession" of the gun, and that the failure resulted in an impermissible inconsistent verdict. We disagree.

Inconsistent verdicts are generally accepted in our judicial system. State v. Kelly, 201 N.J. 471, 487 (2010). This is so because inconsistent verdicts are "beyond the purview of correction by [the] courts," ibid., and "[e]ach count in an indictment is regarded as if it was a separate indictment." Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932); accord United States v. Powell, 469 U.S. 57, 62-63, 105 S. Ct. 471, 475-76, 83 L. Ed. 2d 461, 467-68 (1984). In Powell, the United States Supreme Court recognized that inconsistent verdicts cannot be viewed simply as a "windfall to the [g]overnment" since a jury may find a defendant not guilty, despite evidence to the contrary, "through mistake, compromise, or lenity." Id. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468. An inconsistent verdict, however, "may not insulate a conviction from reversal based on other defects in the criminal proceeding." State v. Banko, 182 N.J. 44, 55 (2004). Thus, "inconsistent verdicts . . . may be vulnerable . . . when an incomplete or misleading jury instruction causes an unfair trial." Ibid.

Concerning "unlawful purpose," the judge charged the jury that:

the State must prove beyond a reasonable doubt . . . that the defendant had a purpose to use the firearm in a manner that was prohibited by law. . . . This element requires you to find the State has proven beyond a reasonable doubt that defendant possessed the firearm with a conscious object, designed or intended to be used against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose.

 

In this case the State contends that defendant's unlawful purpose in possessing the firearm was assaulting [S.S.] You may not rely upon your own notions of unlawfulness or some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged. The unlawful purpose alleged by the State may be inferred from all that was said or done, and from all the surrounding circumstances in this case. However, the State need not prove the defendant accomplished his unlawful purpose of using the firearm.

 

[(emphasis added).]

Since defendant did not object to this charge at trial, our standard of review of defendant s claim is plain error. R. 2:10-2; State v. Green, 86 N.J. 281, 289 (1981). Rule 2:10-2 states "[the] error [must] have been clearly capable of producing an unjust result . . . ." Our Supreme Court has explained that plain error is a

legal impropriety in the charge, prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court that of itself[,] the error possessed a clear capacity to bring about an unjust result.

 

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

 

Defendant argues that the judge incorrectly identified defendant's unlawful purpose for possessing the gun. In the context of a charge involving possession of a firearm for an unlawful purpose, a conviction of an underlying charge involving the gun - assault, robbery, rape - usually "supplies the factual basis for an inference of unlawful purpose in possessing the gun." State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989). However, "if the possession charge stands alone, or if acquittal of the accompanying charge erases the identification of the unlawful purpose, the court may not permit the jury to convict on the basis of speculation as to what possible purposes qualify as unlawful." Ibid. Therefore, such a jury instruction "must include an identification of such unlawful purposes as may be suggested by the evidence and an instruction that the jury may not convict based on their own notion of the unlawfulness of some other undescribed purpose." Id. at 316; State v. Williams, 168 N.J. 323, 340 (2001); State v. Petties, 139 N.J. 310, 319-20 (1995). Identification of the unlawful purpose by the judge is critical because a jury is not qualified to conclude, without assistance, which purposes for possessing a gun are lawful and which are unlawful. Petties, supra, 139 N.J. at 320.

In identifying the unlawful purpose, the judge need not "'define with precision the exact elements of the crime the defendant is alleged to have intended to commit with the firearm.'" Williams, supra, 168 N.J. at 341 (quoting State v. Mello, 297 N.J. Super. 452, 465 (App. Div. 1997)). Rather, "a reference to the generic offenses of robbery, theft, or burglary, without specific recital of the precise elements of those offenses, would seem to suffice." Mello, supra, 297 N.J. Super. at 466; see also Williams, supra, 168 N.J. at 341 ("At a minimum, the instruction should . . . include[] a more specific reference to the underlying substantive charges, even if only generically."). A generic reference to the underlying offense is sufficient because the State is not required to obtain a conviction for the underlying lawful conduct. Petties, supra, 139 N.J. at 315.

Here, the judge's charge as to "unlawful possession" was not plain error. The generic reference to assault sufficiently identified defendant's unlawful purpose for possessing the gun for the jury and precluded the jury from convicting on the basis of speculation. Had the judge specifically identified pointing the gun at S.S. as the unlawful purpose, he would have limited the scope of the State's case improperly since defendant was charged with multiple counts of assault. Therefore, because the judge's reference to assault properly identified the unlawful purpose, the charge was incapable of producing an unjust result.

Concerning "possession," the judge charged the jury:

the State must prove beyond a reasonable doubt . . . defendant possessed the firearm. Possession: To possess an item under the law one must have a knowing, intentional control of the item accompanied by a knowledge of its character. So a person who possesses an item such as a firearm must know or be aware that he possesses it. He must know that it is -- he must know what it is that he possesses or controls is a firearm.

 

The State must prove beyond a reasonable doubt that a possessor acted knowingly in the possession of the item. A person may possess a firearm, though it was not physically on his person at the time of the arrest if he had, in fact, at some prior time to his arrest had control and dominion over it. Possession means a conscious, knowing possession either actual or constructive. Actual possession, the person has actual possession of an item when he first knows what it is, that is he has knowledge of its character, and second knowingly has it on his person at a given time.

 

Constructive Possession. Possession may be constructive instead of actual. As I have stated, a person, who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it. Constructive possession means possession in which the actor does not physically have the item on his person but is aware that the item is present and is able to exercise intentional control or dominion over it.

So someone who has knowledge of the character of an item and knowingly has both the power and intention at a given time to exercise control over it, either directly or though another person, or persons, is then in constructive possession of the item.

After the judge read the "possession" charge to the jury, the jury asked the judge "[d]oes possession in this scenario mean the actual holding and pointing of the gun or just owning of the weapon?" The judge then recharged the jury without mentioning constructive possession. Defendant did not object and thus our standard of review of defendant s claim is plain error. R. 2:10-2.

Here, no plain error existed. In defining actual possession, the judge stated that the defendant must have the weapon "on his person at a given time." That instruction, combined with the subsequent omission of the constructive possession definition, clearly conveyed to the jury that possession meant more than simple ownership of the weapon. Thus, the charge was not capable of producing an unjust result.

We recognize that defendant's weapon's conviction was inconsistent with his acquittal for aggravated assault; however, such inconsistent verdicts are permissible. "[A] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." Banko, supra, 182 N.J. at 46; Petties, supra, 139 N.J. at 319. "Review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that evidence on another count was insufficient." Petties, supra, 139 N.J. at 319.

At the motion for acquittal, the judge "viewing the State's evidence in its entirety, [whether] 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, [concluded] a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). He stated:

Here, the evidence established beyond a reasonable doubt that the defendant armed himself with his service firearm prior to assaulting [S.S.] The evidence, namely, her statement to Jersey City Police . . ., and her Grand Jury testimony . . ., indicated the defendant . . . took his service handgun out and pointed it at [S.S.'s] head while she was holding S.T. He then kept pushing the gun in her head like three or four times.

 

Therefore, the jury was allowed to consider the defendant s criminal purpose during the entire time he possessed the weapon for assaulting [S.S.]

 

. . . .

 

. . . [T]he jury could have concluded that because of the defendant s occupation and training, his possession and use of the weapon were not in extreme indifference [in acquitting him of the pointing charge.] However, such an acquittal does not erase the underlying unlawful purpose for the defendant s possession of the weapon.

 

There exists a sufficient evidential basis in the record to support the weapons conviction, and his acquittal for aggravated assault and endangering the welfare of a child, stemming from pointing a firearm. Each charge contains different elements and "[e]ach count in an indictment is regarded as if it was a separate indictment." Dunn, supra, 284 U.S. at 393, 52 S. Ct. at 190, 76 L. Ed. at 358-59. Thus, because sufficient evidence beyond a reasonable doubt existed to convict defendant on the weapons charge, defendant's inconsistent verdict is permissible.

A

ffirmed.

1 Defendant and his father, J.T., Sr., both testified that J.T., Sr. was home to take care of S.T. and yelled out to S.S. that he was leaving after she returned to the apartment. S.S. testified that she did not see or hear anyone when she came home but admitted it was possible someone could have been there. The jury did not find defendant's or his father's testimony to be credible.