STATE OF NEW JERSEY v. TAWAN MCGUIRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3887-06T43887-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAWAN MCGUIRE, a/k/a TAWANN MCGIURE,

TAWANN L. MCGUIRE, TAWANN LEON MCGUIRE,

Defendant-Appellant.

 
________________________________________________

Submitted September 23, 2009 - Decided

Before Judges Graves, Lyons and J. N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2266 and 05-09-2267.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary M. Theroux, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer C. Fetterman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Tawan McGuire, appeals his convictions for third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5c(1); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; the disorderly persons offense of resisting arrest, contrary to N.J.S.A. 2C:29-2; and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7b. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Al-Salik Bronson and a number of other people were sitting on the porch of a house located on 20th Avenue in Irvington at approximately 12:45 a.m. on April 22, 2005. At that time, Mr. Bronson heard gunshots hit the house behind him. Someone yelled out, "[w]atch out," and Mr. Bronson felt pellets hit his arm. As he got up to run, Mr. Bronson saw someone running towards Ellis Avenue, carrying what he stated appeared to be a black Mossberg shotgun. Before he could flee the scene, Mr. Bronson was struck again with pellets in his lower back.

At the same time, Detectives Michael Isselin and Ray Hoffman, who were in plain clothes and driving an unmarked vehicle, were about to make a motor vehicle stop on 22nd Street when they heard two or three gunshots coming from the area of 20th Avenue and 22nd Street. According to the testimony of Detective Isselin, they thought they heard gunshot blasts. The detectives immediately made a U-turn and began heading in the direction of the shots. Detective Isselin testified that he heard two or three more shots while they were in the car. In total, Detective Isselin said they heard six shots.

After the detectives had traveled approximately one block, they observed defendant running along 20th Avenue, crossing 22nd Street. He was wearing a black mask on his head and was holding a shotgun with both hands, swinging it back and forth as he ran. The officers followed him in their unmarked vehicle to the corner of Ellis and 20th Avenues and ordered him to stop running and to drop his weapon. Defendant, rather than doing so, attempted to enter the rear passenger seat of a black Ford Crown Victoria parked on the corner of Ellis and 20th Avenue. The car was idling with its engine running and headlights on. The detectives then exited their vehicle, drew their weapons, and ordered defendant to stop running and to drop the shotgun. The detectives, while in plain clothes, had their badges visible around their necks.

Defendant continued to hold on to the back door of the Ford Crown Victoria, trying to get into the rear passenger seat of the car. The car then began moving, which caused defendant to fall to the ground and drop the shotgun.

At that time, Detective Hoffman was able to grab the back of defendant's shirt. Defendant continued to swing his arms trying to break free. However, Detective Isselin tackled him. According to Detective Isselin, defendant resisted and would not allow the detectives to handcuff him. He fought and kicked for a minute or two, flailing his arms. Eventually, defendant was subdued after he was sprayed with pepper spray.

The detective testified that they recovered a black Mossberg twelve-gauge shotgun with a pistol grip at the scene. They also removed a black ski mask from defendant's face and recovered a black and blue glove from defendant's left hand. There were six live shotgun shells found in defendant's right front pant's pocket. Later in the evening, Detective Hoffman recovered six spent shotgun casings. He located them at the corner of 22nd Street and 20th Avenue. The detective also testified that defendant did not have a permit to carry the shotgun.

Following his arrest, defendant was placed in the back of the unmarked police car. A crowd of people began to gather. Some of the people advised the detectives that someone had been shot, and they pointed in the direction of 22nd Street and 20th Avenue. Detective Hoffman walked up the street to find out whether anyone had been injured. He discovered Mr. Bronson at that point.

Mr. Bronson was then taken to Beth Israel Hospital where he was treated and released. He had approximately twenty-five to thirty pellets underneath his skin. Mr. Bronson told the detectives he was unable to identify his shooter and refused to provide any information regarding the incident.

Detective Louis Alarcon testified that the Mossberg shotgun was operable and able to be discharged. He also testified that the six spent shell casings found at the scene were fired from the shotgun found in defendant's possession.

Mr. Bronson, the victim, who was incarcerated at the time of trial on an unrelated matter, testified that the weapon used was a Mossberg shotgun. He stated that he could see his assailant clearly, he knew defendant well, and it was not defendant who shot him. Mr. Bronson acknowledged that he spoke with defendant after the incident and he assured defendant he knew defendant was not the shooter.

Defendant elected to testify in his defense, notwithstanding that the State intended to cross-examine him regarding prior convictions. Defendant understood that if he did testify, the jury would be directed to consider the charge of possession of a weapon by a convicted felon, together with the other charges.

Defendant testified that on the night in question, he was celebrating the birthday of a dead friend at a local bar, and he decided to walk home because he was "getting too drunk." While walking toward his home on Springfield Avenue, he heard shots and began running. Defendant said that when he reached the corner, he collided with someone, and fell on the ground. Defendant stated that the person he collided with dropped the shotgun and entered a parked vehicle, which then took off.

According to defendant, at the same time, the detectives got out of their unmarked vehicle and then chased and tackled defendant when he tried to get up and run. Defendant stated the detectives threatened to kill him, placed a gun to his head, and pulled the trigger. During his testimony, defendant admitted he was gang affiliated and acknowledged speaking after his arrest to the victim, who he described as his friend, asking him to come down to the police station to confirm that he was not the shooter. Defendant stated that the victim declined because he could not leave his home since he was then on parole and wearing an electronic bracelet.

Following defendant's arrest, he was charged in Indictment No. 05-09-2266 with first-degree attempted murder; third-degree unlawful possession of a weapon; second-degree possession of a weapon for an unlawful purpose; and third-degree resisting arrest. In a separate indictment, Indictment No. 05-09-2267, defendant was charged with second-degree possession of a weapon by a convicted felon.

Following the trial by jury on Indictment No. 05-09-2266, the jury convicted defendant of third-degree unlawful possession of a weapon; second-degree possession of a weapon for an unlawful purpose; and the disorderly persons offense of resisting arrest. Defendant was acquitted of the attempted murder. The jury also convicted defendant on the sole count of Indictment No. 05-09-2267, possession of a weapon by a convicted felon.

At the close of the State's case, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1. The trial court denied the motion.

On May 1, 2006, the State moved for the imposition of a discretionary extended term, pursuant to N.J.S.A. 2C:44-3(a), with respect to Indictment No. 05-09-2266.

Prior to sentencing, defendant moved for judgment not withstanding the verdict on the conviction of possession of a weapon for an unlawful purpose. The trial court denied the motion.

At the time of sentencing, the trial judge sentenced defendant to an aggregate term of sixteen years with eight years of parole ineligibility. With respect to Indictment No. 05-09-2266, the trial judge sentenced defendant to four years imprisonment for third-degree unlawful possession of a weapon charge; eight years imprisonment with four years of parole ineligibility for second-degree possession of a weapon for an unlawful purpose; and six months incarceration for the disorderly persons resisting arrest conviction. These sentences were to be served concurrently with each other and with the sentence imposed on Indictment No. 05-09-2267. With respect to that indictment, the trial judge imposed a discretionary extended term and sentenced defendant to a sixteen-year term of imprisonment with eight years of parole ineligibility to run concurrent with the sentences imposed in Indictment No. 05-09-2266. This appeal ensued.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE JURY VERDICT RENDERED IN THE EXTANT CASE WAS AGAINST THE WEIGHT OF THE SUBSTANTIAL CREDIBLE EVIDENCE PRESENTED AT TRIAL AND SHOULD BE VACATED.

POINT II

THE STATE FAILED TO PROVE THAT DEFENDANT WAS IN POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE BEYOND A REASONABLE DOUBT.

POINT III

THE SENTENCE IMPOSED BY THE COURT PRESUMED DEFENDANT GUILTY OF A CHARGE FOR WHICH HE HAD BEEN ACQUITTED BY THE JURY AND WAS GROSSLY EXCESSIVE AS A MATTER OF LAW.

POINT IV

THE DEFENDANT-APPELLANT HAS BEEN UNJUSTLY DEPRIVED OF JAIL TIME CREDIT SERVED FOR THE EXTANT OFFENSE.

Defendant first argues that the jury verdict was against the weight of the substantial credible evidence presented at trial and should be vacated. We disagree.

In reviewing whether the conviction was based on insufficient evidence, we apply the same standard that binds a trial court. See State v. Bunch, 180 N.J. 534, 548-49 (2004). That is,

[w]hen assessing the sufficiency of the evidence to support a conviction, the critical inquiry is "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as . . . the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt."

[Id. at 548 (quoting State v. Josephs, 174 N.J. 44, 80 (2002)).]

When we apply that standard to the present case, we find that the State presented sufficient evidence from which a rational jury could find, beyond a reasonable doubt, that defendant committed the offenses for which he was convicted.

The elements of unlawful possession of a weapon are the knowing possession of a handgun capable of being fired without first having obtained a permit. State v. Ingram, 98 N.J. 489, 500 (1985).

At trial, Detective Isselin testified that he saw defendant running with a shotgun in his hands. The gun was determined to be a Mossberg shotgun, which was operable and capable of being discharged, according to Detective Alarcon. There was, therefore, sufficient proof to prove the elements of that offense.

With respect to defendant's conviction for possession of a weapon for an unlawful purpose, a conviction for that offense requires: (1) the object possessed was a firearm; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) defendant intended to use it in a manner that was unlawful. State v. Banko, 182 N.J. 44, 57 (2004).

There is no question that proofs were presented that demonstrated the shotgun found with defendant was a firearm and it was possessed by him. The testimony of Detective Isselin, the circumstantial evidence, and the inferences arising therefrom could lead a reasonable jury to believe that defendant had the unlawful purpose to kill Mr. Bronson. The detective testified that he observed defendant running from the scene, wearing a black ski mask, with ammunition in his pocket, and a shotgun in his hand. Defendant also resisted arrest. There were six spent shotgun shell casings, which were determined to have been fired from defendant's Mossberg shotgun, found in close proximity to the shooting. The victim's injuries were consistent with being shot with a Mossberg shotgun.

As stated in State v. Reyes, 50 N.J. 454, 458-59 (1967), when we view the State's evidence in its entirety, that evidence may be "direct or circumstantial," and we are to give that evidence all of the favorable inferences which reasonably could be drawn therefrom. As further stated in State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 187 (1997):

The approach [in evaluating the sufficiency of evidence] is the same whether the evidence is direct or circumstantial. State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). In that approach, we must recognize "that a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Brown, 80 N.J. 587, 592 (1979). Circumstantial evidence need not preclude every other hypothesis in order to establish guilt beyond a reasonable doubt. Mayberry, supra, 52 N.J. at 436. Additionally, it is a jury function, not the function of the reviewing court, to evaluate witness credibility and the weight and worth of the evidence. See State v. Ingenito, 87 N.J. 204, 211 (1981). Appellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its duty. State v. Butler, 32 N.J. 166, 195, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960).

Consequently, we find, after reviewing all the trial testimony, that there was substantial credible evidence to support defendant's convictions in this matter.

Defendant next argues that the State failed to prove that defendant was in possession of a weapon for an unlawful purpose beyond a reasonable doubt. Defendant argues that he was charged with attempted murder of Mr. Bronson and acquitted on that charge. He was, however, found guilty of possession of a weapon for an unlawful purpose in the face of the court's charge that the unlawful purpose alleged was to kill Mr. Bronson.

Defendant concedes that an unlawful purpose can be inferred from circumstantial evidence, citing State v. Petties, 139 N.J. 310, 317 (1995), and that a conviction for possession of an unlawful purpose does not require the State to obtain a conviction on the underlying unlawful conduct, citing State v. Harmon, 104 N.J. 189, 212 (1986). Defendant argues that the trial judge's hypothesis (that perhaps the jury concluded that defendant brought the weapon to the scene, facilitated its use by another in an attempt to shoot Mr. Bronson, and then fled), which was advanced in support of his denial of defendant's post-trial motion for an acquittal on the unlawful possession charge, was without support in the record.

Defendant goes on to argue that the trial judge's supposition was without support in the record and, therefore, the charge was not proven beyond a reasonable doubt. Further, defendant argues that the proofs submitted by the State do not support the finding that the charged unlawful purpose, attempted murder, was proven because there was no testimony that defendant was connected to the underlying offense.

We agree with defendant's critique of the trial court's hypothesis, it is without any support in the record and amounts to mere speculation. However, the appropriate analysis, whether there is sufficient credible evidence in the record for a jury to find beyond a reasonable doubt that defendant possessed the shotgun for the purpose of attempting to kill Mr. Bronson, when applied, clearly supports defendant's conviction.

There was substantial circumstantial evidence in the record, as recited above, to find defendant to be the shooter, assuming the jury rejected Mr. Bronson's testimony.

In essence, defendant's argument is simply that the acquittal for the attempted murder charge and the possession of a weapon for an unlawful purpose are inconsistent verdicts and undermine the jury's findings of guilt beyond a reasonable doubt on the possession of a weapon for an unlawful purpose charge.

Defendant relies on State v. Turner, 310 N.J. Super. 423 (App. Div. 1998), to support that argument. In that case, the trial judge gave the identical instruction as to purpose when charging the jury on the substantive offense for assault as he did for the possession of a weapon for an unlawful purpose. There, we found that the acquittal of the assault charge erased the identification of the defendant's unlawful purpose in possessing the gun that he pointed at the victim, and we concluded that the conviction must be reversed. Id. at 434.

However, six years later in Banko, our Supreme Court directly addressed this issue. In that case, defendant was acquitted of the substantive charge of attempted aggravated sexual assault but convicted of possession of a weapon for an unlawful purpose. The Court stated:

The superficial inconsistency between the two charges does not void the legitimacy of the jury's conviction. The jury may have chosen to convict on possession of a weapon for an unlawful purpose, the purpose being, as the court instructed in respect of the State's theory of the case, to confine Ms. Miles and to assault her sexually. And, yet, the jury could have determined not to convict defendant on the substantive offenses for reasons known only to the jury.

We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted.

[Banko, supra, 182 N.J., at 56.]

We, therefore, follow the holding and required analysis in Banko and will not speculate on the reasons for the jury's determination. We will, however, and have assessed whether there is factually sufficient evidence to support the possession of a weapon for an unlawful purpose charge for which defendant was convicted. As stated earlier, we find that there is sufficient support, albeit circumstantial, in the record for that conviction. Therefore, we reject defendant's argument on this point.

Defendant argues that his sentence was grossly excessive as a matter of law. We disagree. It is clear that defendant met the criteria for being deemed a persistent offender pursuant to N.J.S.A. 2C:44-3(a).

Our Supreme Court has set forth the functions we may undertake in reviewing a criminal sentence as follows:

(a) Review [the] sentence[] [in order] to determine if the legislative policies, here the sentencing guidelines, were violated;

(b) Review the aggravating and mitigating factors as found [by the trial court] to determine whether those factors were based upon competent credible evidence in the record; and

(c) Determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of [same] to the facts of this case make[s] the sentence clearly unreasonable so as to shock the judicial conscience.

[State v. Roth, 95 N.J. 334, 364-65 (1984).]

We must avoid substituting our own judgment for that of the trial court. Id. at 365.

We disagree with defendant's argument that he was subjected to a disproportionate sentence under the circumstances of this case. We find that the trial court appropriately recognized the aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1. As stated earlier, we find that the jury's conviction for possession of a weapon for an unlawful purpose incorporates a finding by the jury as directed by the court that the unlawful purpose was the attempted murder of Mr. Bronson.

Defendant now argues that mitigating factors three, six, eight, nine, and eleven should have been considered pursuant to N.J.S.A. 2C:44-1(b). However, the record does not support a finding of those mitigating factors. There is no indication of any provocation or that defendant has or will compensate Mr. Bronson. Given defendant's prior convictions, there is no indication that his conduct was a result of circumstances unlikely to reoccur. In addition, there is no indication that his imprisonment would entail excessive hardship to him or his dependants. Defendant submitted no proofs to indicate he was providing any financial support nor is there any proof as to his living with his young child, particularly seeing that he has been unemployed for six years. We find, therefore, that the sentence imposed did not fail to consider certain mitigating factors and was not excessive so as to shock the judicial conscience.

In reviewing the sentence, however, we note that the sentencing court imposed an extended term on Indictment No. 05-09-2267, the charge of second-degree possession of a weapon by a convicted felon as opposed to Indictment No. 05-09-2266, which was requested by the prosecutor. As stated in State v. Thomas, 195 N.J. 431, 436 (2008), "[w]here multiple offenses are charged, [the notice to seek a discretionary extended term] obviously should include an identification of the offense with respect to which the prosecutor is seeking an extended term in order to give the defendant a fair opportunity to meet that claim." Thomas notes that the trial judge "should give weight to the prosecutor's determination regarding which offense is to be subject to an extended term, but that selection is not dispositive." Ibid. "If the judge has reason to disagree, he should state, on the record, along with his reasons for the sentence, why he chose to apply the extended term to a different charge than that served by the prosecutor." Ibid. In this case, nothing on the record discloses the reasons for the judge's imposition of the extended term on an offense different than that requested. Therefore, as conceded by the prosecutor, the matter must be remanded to the sentencing judge so that he has an opportunity to provide those reasons.

Lastly, defendant argues that he is entitled to additional jail credits, pursuant to Rule 3:21-8. Defendant was incarcerated from April 22, 2005, to July 14, 2006. However, the sentencing judge did not provide credit for the period from April 22, 2005, through January 8, 2006, because when defendant was arrested on the present offenses, there was an outstanding bench warrant for an earlier indictment. He was sentenced on that indictment to a term of 364 days in jail on September 30, 2005, by a different court. That court gave him credit for the 161 days from April 22, 2005, to September 29, 2005, the date on which he was sentenced on that earlier offense. The time from September 30, 2005, to January 8, 2006, was applied to his 364 day sentence on the earlier unrelated indictment.

Defendant is not entitled to duplicate or double jail credits. State v. Black, 153 N.J. 438, 457 (1998). Credit is allowable only for a period of incarceration attributable to that crime and the time spent in custody and other charges are not subject to credit. In re Hisinger, 180 N.J. Super. 491, 500-01 (App. Div.), certif. denied, 88 N.J. 494 (1981).

In this case, the sentencing judge's refusal to exercise his discretion to permit additional credits was appropriate. Accordingly, we reject defendant's argument for additional jail time credits.

 
Affirmed in all respects, except that the extended sentence issue is remanded pursuant to Thomas for the sentencing judge to set forth his reasons for extending the term on the one charge as opposed to that sought by the State.

We also note there are clerical errors in the "original charges" and "final charges" portion of the judgment of conviction, i.e., the statutory references are inaccurate and the resisting arrest conviction was for a disorderly persons offense. We also direct the sentencing judge to review and amend the judgment of conviction in that regard.

(continued)

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A-3887-06T4

October 22, 2009