STATE OF NEW JERSEY IN THE INTEREST OF M.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF M.R., A Juvenile.

__________________________________

February 24, 2014

Submitted January 27, 2014 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FJ-04-2068-12.

Joseph E. Krakora, Public Defender, attorney for appellant M.R. (Amira R. Scurato, Assistant Deputy Public Defender, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent State of New Jersey (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, M.R., a juvenile, appeals from his final delinquency adjudication. He alleges that the evidence relied upon by the Family Part judge was insufficient to warrant a delinquency adjudication of an act, if committed by an adult, of (constructive) possession of an intact, unadulterated cigar claimed to be drug paraphernalia, N.J.S.A. 2C:36-2.1 We reverse.

I.

We recite the facts as recounted by Mount Holly police officer Deborah Murillo,2 which was the only testimonial evidence regarding M.R.'s conduct. Officer Murillo, who was found by the trial judge to be credible, was also found to have "performed expertly in what she needed to do."

Around 11:23 p.m. on Sunday night, November 13, 2011, Officer Murillo was on the grounds of the Folwell School conducting a "property check," when she observed a "vehicle parked [in the] far rear parking lot." Although it was dark, and the interior of the vehicle a minivan was unilluminated, Officer Murillo "observed two silhouettes in the back seat." After shining her spotlight from the patrol vehicle, Officer Murillo saw movement in the back seat, and "the male suspect," identified in court as M.R., "came out of the vehicle." Before M.R. could close the minivan's sliding door, Officer Murillo, who by that time was about two feet away, "smelled raw marijuana[3] coming from inside the vehicle." When a backup police officer arrived, Officer Murillo walked around the outside of the minivan to the front passenger side where she proceeded to use a flashlight to peer inside the vehicle. With the aid of the flashlight, Officer Murillo "observed a blunt cigar in the ashtray of the front of the vehicle."

Erroneously believing that the cigar contained the raw marijuana that she had just sensed, Officer Murillo opened the front passenger door and retrieved the item. At trial, Officer Murillo described the cigar as "[p]erfectly closed, . . . nothing coming out of it, no tobacco coming out of it."

After grabbing the cigar out of the ashtray, Officer Murillo "located a . . . partially-burnt marijuana cigarette[4] and a clear glassine baggie[5] underneath the blunt cigar." Without explanation, Officer Murillo "determine[d]" that M.R. was the driver of the minivan, and she immediately arrested M.R. and charged him with possession of less than fifty grams of marijuana and possession of drug paraphernalia, "specifically a cigar commonly used to ingest marijuana."

At the bench trial on May 18, 2012, the Family Part judge addressed both charges, concluding as follows:

Clearly, there's a violation here. Count 2 [the paraphernalia charge], this young man had constructive possession and understood that there was paraphernalia in that vehicle, and he did nothing to, you know, discard the paraphernalia, rid himself of the paraphernalia, turn the paraphernalia over to any authorities or anything of that nature. He was in the vehicle, he constructively possessed it. I can infer that he may have smelled marijuana in that vehicle.

I can make that inference because the officer smelled it when she was two feet away. It was the smell which she indicated of what she testified to was raw marijuana. I don't know how you make that distinction. I don't have any training in that regard. If you smell marijuana, you know, I guess it smells a little bit different burnt than not burned, but, you know the smells are kind of similar, except that you get that smokey smell.

But in any event, I have to assume that if he was in that vehicle, he smelled marijuana, too. But being in an area where there's a smell of marijuana to the Court doesn't reach constructive possession of marijuana. I say he constructively at a minimum he constructively possessed the blunt cigar.

Because the cigar was visible, but the partially burnt marijuana cigarette was not, the judge found that he "cannot draw the inference that the young man knew it was underneath," and the judge dismissed the N.J.S.A. 2C:35-10(a)(4) charge. Accordingly, the judge found that M.R. violated N.J.S.A. 2C:36-2 because, "certainly, being in the front seat of the van, driving the van, seeing [the cigar] right there, it's in plain view, I deem [M.R.] to have, by all the inferences, constructive possession, because he had knowledge that it was sitting there. And it's a blunt and it's used for marijuana purposes." After the imposition of a probationary term and other sanctions, this appeal followed.

II.

We exercise a limited scope of review from a trial judge s findings of fact and the conclusions that flow from those findings. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Appellate courts accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. State in the Interest of X.B., 402 N.J. Super. 23, 29 (App. Div.), certif. denied, 196 N.J. 601 (2008). We do not substitute our own assessment of the evidence for that of the trial judge. See State v. Minitee, 210 N.J. 307, 317 (2012) (citing Johnson, supra, 42 N.J. at 162). Our task is complete upon determining there is sufficient credible evidence in the record to support the trial court's factual findings. Ibid.

In order to find a violation of N.J.S.A. 2C:36-2, the court, of course, must conclude that the State proved each element of the offense beyond a reasonable doubt. State ex rel J.G., 151 N.J. 565, 593-94 (1997) (assigning same allocation of the burden of proof in juvenile delinquency proceedings as in all criminal matters). In particular, N.J.S.A. 2C:36-2 provides as follows:

It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. Any person who violates this section is guilty of a disorderly persons offense.

[(Emphasis added).]

"Drug paraphernalia" is defined, in pertinent part, as:

all equipment, products and materials of any kind which are used or intended for use in . . . packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. It shall include, but not be limited to: . . . k. objects used or intended for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, hashish oil, nitrous oxide or the fumes of a toxic chemical into the human body[.]

In determining whether or not an object is drug paraphernalia, the trier of fact, in addition to or as part of the proofs, may consider the following factors: a. statements by an owner or by anyone in control of the object concerning its use; b. the proximity of the object of illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals; c. the existence of any residue of illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals on the object; d. direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use as drug paraphernalia;

. . . .

[N.J.S.A. 2C:36-1.]

Thus, we analyze the status of an object claimed to be drug paraphernalia contextually, considering the totality of the circumstances.

Even though we are less sanguine than the trial judge's statement, "because it is a blunt cigar, it's something that's commonly used in the court's judicial I can take judicial notice and I do, that those blunt cigars are used every day to smoke marijuana," we readily acknowledge that a cigar, like a pipe, can sometimes satisfy the definition of drug paraphernalia under N.J.S.A. 2C:36-1. Here, however, the trial judge's express findings belie the possibility, much less a conclusion beyond a reasonable doubt, that M.R. knowingly possessed the cigar as drug paraphernalia "with intent to use" it to "ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance." N.J.S.A. 2C:36-2.

The trial judge explained, "There was nothing in the character of the officer's testimony that tells me she says it was intact there's nothing in there that tells me that [M.R.] knew that it, in fact, had been loaded with marijuana." Nevertheless, the judge immediately commented, without further elaboration, "but it certainly constitutes paraphernalia. Reason being, that type of blunt cigarette [sic] is known to be paraphernalia, it's commonly used for paraphernalia, [M.R.] saw it there, [M.R.] saw it in the car." We find no support in the record for such a generalization, and little else to satisfy the requirement that M.R. be proven beyond a reasonable doubt to have knowledge of the cigar's character and its intended use. The only evidence that arguably, but incompletely, supported the judge's conclusion of a violation of N.J.S.A. 2C:36-2 was that the cigar "was sitting there."

Indeed, in finding that the State had not demonstrated a violation of possession of a controlled dangerous substance (the partially burnt marijuana cigarette), N.J.S.A. 2C:35-10(a)(4), the judge stated, "[s]o could anybody in that driver's seat know that under the paraphernalia was some burnt marijuana? I can't . . . reach that. I don't have anything in the case to get me to that point that they actually knew." Thus, all that was proven was that there was an intact cigar in M.R.'s minivan's ashtray. That is woefully inadequate to satisfy the State's burden of proof with respect to M.R.'s knowledge of drug paraphernalia. Although the smell of marijuana may constitute probable cause for a police officer to believe that a crime has been committed and that additional contraband might be present, State v. Nishina, 175 N.J. 502, 515-16 (2003), the trial judge here expressly determined, even if it were permissible to attribute a requisite sense of smell to M.R., that M.R. had no knowledge of an association between the contents of the minivan and the smell of raw, not burnt, marijuana.

In explaining his initial conclusions, the judge expressly discounted the significance of the odor of raw marijuana by stating,

And the smell of marijuana isn't enough, because I don't know how that got there. I don't know that that smell wasn't from, you know, an open window next to the driver's side window where somebody in another car was blowing marijuana and it came in, and it caused the smell in the vehicle. I just don't know. There's nothing in the case that tells me that the smell alone is enough for him to know.

When pressed to explain his rationale for the paraphernalia adjudication, the trial judge resurrected the moribund olfactory theory by stating:

I can infer that the young man knew that it [w]as paraphernalia [because of] the fact that there was the odor of marijuana cigarette in the car. That alone should have alerted him that when he saw a blunt, and he smelled marijuana in the car, he didn't say he smelled marijuana. The officer did. If she smelled it, and I believe her, then anyone else in the car with a pair of nostrils and olfactory senses would have smelled it.

. . . .

I impute to him and infer to him the knowledge that it wasn't just a legally-possessed cigar. That in some fashion that cigar was there for a drug purpose, for a paraphernalia purpose. I can't impute that he knew it had weed in it, but I sure can impute that it smelled like weed in the car, and that he then should have connected that with marijuana use.

Since the judge had earlier found the smell might have come from "an open window next to the driver's side window where somebody in another car was blowing marijuana and it came in" and "[t]here's nothing in the case that tells me that the smell alone is enough for him to know," the judge's paraphernalia conclusion was illogical and bereft of evidence to support the delinquency adjudication.

Moreover, the State did not even attempt to demonstrate M.R.'s intention with respect to the cigar. A delinquency adjudication under N.J.S.A. 2C:36-2 does not merely require a finding of actual or constructive possession of drug paraphernalia, but imposes upon the State the further burden of proving M.R.'s "intent to use" the drug paraphernalia. The trial judge made no findings with respect to this critical element of the offense for the obvious reason that the State had neglected to present such proofs. In such circumstances, the delinquency adjudication cannot stand.

1 The trial judge dismissed the separate charge of what would be, if committed by an adult, possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(4).

2 We decline to recount the testimony of M.R.'s sole witness his mother, testifying as a character witness because the trial judge found: "As for the defense's only witness, his mother, I find her to [be] completely unbelievable. She was not credible whatsoever. She was protecting her son."

3 Officer Murillo testified that she was specifically trained "to distinguish the difference between what raw marijuana and burnt marijuana smells like."

4 The results of a laboratory test introduced at trial established that the "greenish brown vegetation rolled inside one partially-burnt marijuana cigarette," was, in fact, .18 grams of marijuana.

5 The baggie was described as being "maybe three quarters of an inch by an inch roughly."