STATE OF NEW JERSEY v. LEONARD BRISTOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3381-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD BRISTOL,

Defendant-Appellant.

____________________________________

October 4, 2013

Submitted January 9, 2013 - Decided

Before Judges Nugent and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 10-02-0536.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Essex County Prosecutor, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Defendant, Leonard Bristol, appeals from the judgment that convicted him of possession of a controlled dangerous substance (CDS), marijuana, and possession with intent to distribute a CDS, marijuana. He contends the State's trial evidence was insufficient to prove that he possessed the marijuana seized by police who executed a search warrant at a house where he and others were present. He also contends the State's evidence was insufficient to prove that he fortified a structure maintained for the manufacture, distribution, dispensing, or possession of a CDS, an offense for which the jury was unable to reach a verdict, and which was dismissed when defendant was sentenced. Having considered defendant's arguments in view of the record and controlling law, we affirm.

The State developed the following proofs at trial. On December 22, 2009, at approximately five o'clock in the afternoon, members of the Orange police department's Special Response Team (SRT) and Narcotics Unit executed a search warrant at a two-story house on Reock Street in Orange. Upon their arrival, they saw co-defendant Chris Solomon running from the rear of the property. Solomon disregarded Detective Gregory Johnson's command to stop, so Detective Johnson and Detective Ryan Greenfield chased and apprehended him.

Meanwhile, the other officers divided into two teams and approached the east side and rear door entrances to the house. Two officers, Detective Michael Tingoli and Sergeant Ham, attempted to enter through the rear door after knocking and announcing their presence.1 Sergeant Ham, "a big guy," was unable to "breach the door" after "hit[ting] it multiple times" with a steel ram weighing forty to fifty pounds. Later, after entering the house, Detective Tingoli saw that the interior of the rear door was secured by a two-by-four screwed to the floor, another two-by-four screwed to the center of the door, a third two-by-four "bracing the door closed," and a deadbolt lock above the door handle. Unable to breach the rear door upon their arrival, Detective Tingoli and Sergeant Ham went to the other entrance.

SRT members forcibly entered the home after no one responded when they announced themselves. Upon entering, the officers used flash bang devices to secure the residence and ensure that none of the occupants was armed. Detective Tingoli, accompanied by Sergeant Ham, proceeded to the attic where he saw defendant "tossing items out . . . the window." Detective Tingoli "ordered [defendant] to the ground" and defendant refused, so "[h]e was then taken to the . . . floor." During the scuffle, defendant dropped a clear plastic bag containing a green vegetative substance that smelled like marijuana, and twenty-five dollars. The officers arrested defendant. Detective Tingoli did not recall encountering anyone other than defendant on either the second floor or in the attic.

Detective Walter Enbert and Detective Lieutenant Dunn were assigned to secure the door on the west side of the house.2 Specifically, Lieutenant Dunn was assigned to watch the door and Detective Enbert was assigned to provide cover for Lieutenant Dunn. Detective Enbert used a flashlight to illuminate windows above the door. While doing so, he saw defendant toss two items out an attic window. Detective Enbert retrieved and identified the items as "bags containing [a] green vegetation, marijuana." One bag contained two other plastic bags. The interior plastic bags contained eight grams of marijuana and six grams of marijuana. Another clear plastic bag contained approximately 2.4 ounces of marijuana and twenty-three Ziploc baggies. Each Ziploc baggie contained marijuana.

Other officers seized other drugs from other parts of the house. Sergeant Michael Berserchio walked into a first-floor bedroom with a bed, dresser, and chair, and saw a camouflage case on the floor near a dresser. The Sergeant opened the case and seized from it a bag containing one pound, one ounce of marijuana; four plastic bags each containing approximately four ounces of marijuana; a grey digital scale; "[n]umerous empty Ziploc baggies commonly used for packaging marijuana"; and a box of bullets. Sergeant Berserchio also found cash in a large bag on a shelf in the closet. The cash included various denominations of currency ranging from one to one-hundred dollar bills and totaled $1,306. Hanging in the closet were male clothes, jeans, and shirts. Sergeant Berserchio saw no one on the first floor other than police officers. Berserchio found a wallet on the dresser. The wallet contained a Wachovia card and a Visa card belonging to defendant, and a "Caesar's Atlantic City Voucher, bearing [defendant's] name."

Detective Robert Stephaneli seized marijuana while searching the second floor of the house. Although the second floor was vacant, there were some paint brushes, bladders, and tools on the floor. Underneath a sink on the second floor was "a white bag containing suspect[ed] marijuana." The bag contained three other bags which contained, respectively, 15.4 ounces of marijuana, one pound of marijuana, and one pound and one ounce of marijuana.

In addition to the testimony from the law enforcement officers, the State presented the testimony of a forensic scientist from the New Jersey State Police Office of Forensic Sciences who tested samples from the vegetative substances seized during the search. The scientist identified the substances he tested as marijuana.

Defendant presented three witnesses: Christopher Richards and Damien Foreman, members of a dance group called Samba Squad, and Chris Solomon, the man who was apprehended by police after fleeing through the backyard of the house. According to Richards, the Samba Squad was rehearsing for an upcoming show when the police raided the Reock Street house. When the police conducted the raid, members of Samba Squad as well as several people who were not members were in the basement. Richards also testified there were seven or eight people upstairs. Although he did not see them, he could hear them talking. There were four men in the basement playing dominoes, and some of them were smoking "weed." Following the completion of their search, the police transported Richards to the police station, but released him later than night.

Foreman, the dance teacher for the Samba Squad, testified he was given permission by a UPS co-worker named Sam to use the house for a rehearsal. He did not know who owned the house, but a man named "Sonny" let him in. During rehearsal, nine members of the Samba Squad were present in the basement, and they had practiced for approximately one hour before Foreman saw defendant.

Around the time defendant arrived, a wire that Foreman was using for his equipment burned out. Defendant said that he could get a wire, left the house, and returned approximately twenty minutes later with wires and a plug.

As the Samba Squad prepared to resume their rehearsal, Foreman heard a loud bang and the police entered the house. When that happened, there were at least six people in the house who were not members of the Samba Squad. According to Foreman, the police entered the house approximately ten minutes after defendant had returned from getting the wire and plugs. Solomon testified that he and approximately ten other people were in the basement when the police arrived. He ran out the back door, was chased by police, and was eventually arrested. He was subsequently charged with, and pleaded guilty to, obstruction of justice.

Following defendant's arrest, an Essex County Grand Jury charged him in five counts of an indictment with second-degree maintaining in a fortified condition a structure for the manufacture, distribution, dispensing or possession or control with intent to manufacture, distribute or dispense a CDS, N.J.S.A. 2C:35-4.1(c) (First Count); third-degree possession of a CDS, marijuana, in an amount greater than fifty grams, N.J.S.A. 2C:35-10(a)(3) (Second Count); second-degree possession with intent to distribute a CDS, marijuana, in a quantity of five pounds or more but less than twenty-five pounds, N.J.S.A. 2C:35-5(a)(1) and -5(b)(10)(b) (Third Count); fourth-degree possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36-3 (Fourth Count); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b) (Fifth Count). The grand jury charged Solomon in the Sixth Count with fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.

Before the trial began, the court granted the State's motion to dismiss Count Five. At the close of the State's case, the court denied defendant's motion to dismiss the First through Third Counts, and amended the Fourth Count to possession of drug paraphernalia, N.J.S.A. 2C:36-2, a disorderly persons offense. At the close of all of the evidence, the court heard and denied defendant's motion for a judgment of acquittal. The jury found defendant guilty of Count Two (third-degree possession of a CDS) and Count Three (third-degree possession of a CDS, marijuana, with intent to distribute). The jury could not reach a decision on Counts One and Four. At sentencing, the court merged Count Two with Count Three and sentenced defendant to a three-year custodial term. The court also imposed mandatory fines and assessments. The court granted the State's motion to dismiss Counts One and Four. This appeal followed.

Defendant presents a single point for our consideration:

POINT I.

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT POSSESSED MARIJUANA AND THAT HE EITHER OWNED, LEASED OCCUPIED OR CONTROLLED 270 REOCK STREET, THE JUDGE SHOULD HAVE DISMISSED COUNTS ONE, TWO AND THREE.

Defendant argues that the trial court erred when it denied his motion for a judgment of acquittal on all counts. He asserts the State failed "to prove that [he] knowingly or purposely possessed marijuana or had the type of propriet[ar]y connection to the prohibited premises." He maintains the State failed to prove beyond a reasonable doubt that he possessed the marijuana found in the camouflage case in the first-floor bedroom and beneath the second-floor sink. He also maintains that because the State did not test the vegetative material found in the bag he dropped on the attic floor, he cannot be convicted of possessing a CDS based on his possession of that bag of vegetation.

The State argues that the trial court correctly denied defendant's motion for a judgment of acquittal. The State contends a jury reasonably could have inferred from the location of defendant's wallet and bank cards that he occupied the room where a large quantity of marijuana was stored in a camouflage bag. The State also argues that from the similarity of packaging of the CDS discarded by defendant in the attic, the CDS in the camouflage bag, and the CDS under the sink, the jury reasonably could have inferred that defendant possessed all of the marijuana with the intent to distribute it.

A judge presiding over a criminal trial shall, "[a]t the close of the State's case or after the evidence of all parties has been closed, . . . on defendant's motion or its own initiative, order the entry of judgment of acquittal of one or more offenses . . . if the evidence is insufficient to warrant a conviction." R. 3:18-1. The trial judge must "determine 'whether, viewing the State's evidence in its entirety . . . 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 . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (alteration in original) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). When reviewing a trial court's denial of a motion for judgment of acquittal, we apply the same standard. State v. Spivey, 179 N.J. 229, 236 (2004).

The jury found defendant guilty of possession of a CDS and possession of a CDS with intent to distribute. Defendant argues that the State's evidence was insufficient to prove that he possessed a CDS. A person may actually or constructively possess an object.

A person actually possesses an object when he has physical or manual control of it. State v. Brown, 80 N.J. 587, 597 (1979). 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.] Schmidt, 110 N.J. [258,] 270 [(1998).]

[Spivey, supra, 179 N.J. at 236-37.]

Possession, actual or constructive, "may be jointly exercised by two or more persons." State v. Rajnai, 132 N.J. Super. 530, 536 (App. Div. 1975). The State may prove the element of possession by either direct or circumstantial evidence. Ibid.

Here, the State presented both direct and circumstantial evidence that defendant actually and constructively possessed marijuana with the intention to sell it. Detective Enbert, who witnessed defendant throw items from an attic window, testified that he retrieved the items and that they were bags containing "green vegetation, marijuana." According to Enbert, one bag contained eight grams of marijuana and another bag contained six grams of marijuana. Another clear plastic bag contained approximately 2.4 ounces of marijuana and twenty-three small Ziploc baggies each containing marijuana. Sergeant Berserchio testified that Ziploc baggies are commonly used to package marijuana.

Defendant now argues that because the items he discarded were not tested by the police, they were never proven to be marijuana. Defendant objected at trial to neither the testimony concerning the marijuana nor to the admission into evidence of the bags he discarded. He does not now assert that the testimony and other evidence were inadmissible. Consequently, the jury was entitled to consider the testimony and the discarded items themselves. The jury could have readily concluded from this evidence that the bags discarded by defendant contained marijuana.

The jury also heard evidence from Sergeant Berserchio that the first-floor bedroom had a bed, a chair, a dresser, and a closet containing a man's clothes. On the floor next to a dresser was a camouflage bag containing more than a pound of marijuana, a digital scale, and numerous empty Ziploc baggies commonly used for packaging marijuana. On a closet shelf was $1,306 in currency, in denominations ranging from one-dollar bills to one-hundred-dollar bills. From that evidence, the jury could have readily inferred that the room was occupied by someone packaging and selling substantial quantities of marijuana. From the location of defendant's wallet on the dresser, the jury could have drawn the reasonable inference that defendant was the occupant. Defendant's possession of, and attempt to discard, several bags of marijuana, including small Ziploc baggies, strengthened the inference that he knew about the marijuana in the camouflage bag and had the capacity to exercise physical control or dominion over it. And once the State established by circumstantial evidence that defendant was the person in the house who possessed, packaged, and sold substantial quantities of marijuana, the jury could have permissibly inferred that he constructively possessed the marijuana found beneath the second-floor sink.

Defendant attacks the State's case by segregating the evidence of the marijuana defendant discarded, the evidence of the marijuana and money found in the first-floor bedroom, and the evidence of the marijuana found beneath the second-floor sink. He then advances arguments that rely upon inferences leading to the conclusion that someone else might have possessed the CDS found on the first and second floors. Although that approach was certainly a proper tactic to take with the jury, it is contrary to our standard of review. We must view the completed tapestry, not strands of unwoven fabric. The State's evidence, considered in its entirety, along with the favorable reasonable inferences to be drawn from it, provided an ample basis for the jury's determination that defendant possessed and intended to distribute the marijuana seized by the police. Spivey, supra, 179 N.J. at 236.

Defendant's argument concerning the First Count of the indictment is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Sergeant Ham's first name does not appear in the record.

2 Lieutenant Dunn's first name does not appear in the transcript.