STATE OF NEW JERSEY v. TOMAS C. LLOYD-JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3700-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOMAS C. LLOYD-JONES, a/k/a THOMAS LLOYD,

a/k/a THMAS C. JONES, a/k/a THOMAS JONES,

a/k/a TOMAS C. JONES, a/k/a THMAS C. LLOYD,

a/k/a TOMAS C LLOYD, a/k/a THMAS C.

LLOYDJONES, a/k/a TOMAS C. LLOYDJONES,

a/k/a THOMAS SCORNS, a/k/a TOMAS T. LLOYD,

a/k/a EDWARD DELEON, a/k/a LLYOD TOMAS JONES,

a/k/a THOMAS C. JONES, a/k/a TOMAS T.

JONES, a/k/a THOMAS LLOYDJONES, a/k/a TOMAS T.

LLOYDJONES,

Defendant-Appellant.

______________________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE K. ARMERDING, a/k/a GEORGE ARMERDING,

Defendant-Appellant.

______________________________________________________

November 23, 2015

 

Submitted March 9, 2015 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-08-0843.

Joseph E. Krakora, Public Defender, attorney for appellant Tomas C. Lloyd-Jones (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant George K. Armerding (Kevin G. Byrnes, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey in A-3089-12 (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent in A-3700-12 (Anne Marie Bramnick, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant Tomas C. Lloyd-Jones filed a pro se supplemental brief.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendants Tomas C. Lloyd-Jones and George K. Armerding were convicted after a six-day jury trial before Judge Robert J. Mega. They filed separate appeals from their January 2, 2013 judgments of conviction. We listed their appeals back-to-back, and now consolidate them for purposes of this opinion. We affirm.

I.

We summarize the trial testimony. At about 2:30 a.m. on April 13, 2011, Officer Mathew Brescia was alone on patrol in the Township of Union. At a darkened gas station, he saw a Subaru Impreza wagon parked next to the gas pump, with Armerding standing next to the rear passenger side. Knowing the gas station was closed, Brescia pulled in and exited his patrol car. He saw the gas pump was illuminated as if it was active, with the gas nozzle in the Subaru's gas tank inlet. He told Armerding the station was closed. Armerding said he knew, but he was low on gas.

When Officer Brescia approached the Subaru from the rear, he smelled raw marijuana. Contrary to Brescia's command, Lloyd-Jones exited the car, leaving the front passenger door open. Smelling the marijuana, and suspicious they were trying to steal gas, Brescia had both defendants put their hands on the patrol car until backup could arrive.

About two minutes later, Sergeant Mark Martin arrived to watch defendants. Martin too smelled the odor of raw marijuana. Officer Brescia investigated and found the gas pumps were disabled at that time of night, but noticed the odor of marijuana was stronger near the open passenger door. He looked into the door with a flashlight and saw the butt of a handgun sticking out from under the passenger seat. Brescia retrieved the loaded 9 mm handgun. Neither defendant had a gun permit.

The officers arrested defendants, and found about 3.3 grams of marijuana and $2424 in Lloyd-Jones's pocket. The Subaru was impounded. It was searched by Detective Odette Mirao, with the written consent of Armerding, the registered owner. Mirao similarly detected a strong odor of marijuana emanating from the Subaru. On opening the rear door of the wagon, she immediately saw in the cargo area, which was accessible from the passenger compartment, a clear one-gallon bag containing marijuana. The marijuana weighed over 217 grams, which is approximately one half-pound.

At trial, the officers mentioned above testified, as did other officers. A drug expert testified that the approximate half-pound of marijuana was possessed for distribution rather than personal use. A DNA expert testified that Lloyd-Jones was likely a major contributor of the DNA on the gun, and that Armerding was not a contributor. Armerding, who did not testify, offered five character witnesses.

Lloyd-Jones testified as follows. He bought the 3.3 grams of marijuana from Armerding, but Armerding's Subaru ran out of gas and they had to push it into the gas station. Lloyd-Jones saw Armerding put the handgun on the driver's seat. Lloyd-Jones "freaked out," and put the gun under the passenger seat. He had the cash because he had cashed a $1300 paycheck, collected a $1000 debt, and was going to Atlantic City. He claimed he did not know the marijuana was in the Subaru's cargo area.

The grand jury charged both defendants with: Count One fourth-degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3); Count Two third-degree possession of one ounce of more of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(11); Count Three second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and Count Four second-degree possession of a firearm while committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1(a).

The jury convicted Lloyd-Jones on all counts. The jury convicted Armerding of Counts One and Two, and acquitted him of Counts Three and Four. Judge Mega denied defendants' motion for a new trial.

Judge Mega sentenced Armerding on Counts One and Two to concurrent terms of four years' probation. The court sentenced Lloyd-Jones to concurrent terms on Counts Three and Four of eight years in prison, with four years of parole eligibility. The court merged Count One into Count Two, on which the court imposed a consecutive term of four years in prison.

On appeal, Armerding raises the following claims

POINT I THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT'S INSTRUCTIONS ON THE LAW OF POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE WAS NOT CLEAR AND UNDERSTANDABLE, AS REQUIRED BY THE LAW (Partially Raised Below)

A. THE TRIAL COURT'S INSTRUCTIONS ON THE LAW OF CONSTRUCTIVE POSSESSION WAS SO CONTRADICTORY AND AMBIGUOUS, IT EVEN CONFUSED THE PROSECUTOR. (Not Raised Below).

B. THE TRIAL COURT FAILED TO INSTRUCT JURORS ON THE ESSENTIAL ELEMENT OF INTENT TO ATTEMPT DISTRIBUTION (Not Raised Below).

C. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS OF THE CASE AFTER JURORS SOUGHT CLARIFICATION ON THE LAW (Not Raised Below).

D. THE COURT FAILED TO INSTRUCT JURORS THAT THE DEFENDANT MAY PARTICIPATE IN THE CRIME WITH A DIFFERENT INTENT AND HENCE BE GUILTY OF A LESSER CRIME THAN THAT COMMITTED BY THE CO-DEFENDANT (Not Raised Below).

E. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT MERE PRESENCE AT THE CRIME SCENE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR POSSESSION.

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S PREJUDICIAL MISREPRESENTATION OF THE LAW OF CONSTRUCTIVE POSSESSION.

POINT III THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION OF THE DEFENDANT.

Lloyd-Jones's counseled brief raises the following claims

POINT I THE TRIAL JUDGE ERRED IN REFUSING TO CHARGE "MERE PRESENCE" AS PART OF THE CONSTRUCTIVE POSSESSION CHARGE.

POINT II THE JUDGE ERRED IN FAILING TO DISMISS COUNT FOUR OF THE INDICTMENT AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE NECESSARY CONNECTION BETWEEN THE POSSESSION OF THE FIREARM AND THE CHARGE OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.

POINT III THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS ONE, TWO, AND FOUR AS THE STATE FAILED TO PROVE POSSESSION BEYOND A REASONABLE DOUBT.

POINT IV THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Lloyd-Jones's pro se brief raises the following claim

THE TRIAL JUDGE ERRON[E]OUSLY FAILED TO RESPONSIVELY ANSWER AN IMPORTANT QUESTION POSED BY THE JURY DURING IT[]S DELIBERATIONS RESPECTING AN ELEMENT OF THE CRIMES CHARGED.

II.

Armerding challenges the denial of defendants' motion to suppress. We reject such a challenge for substantially the reasons given in Judge Mega's sixteen-page opinion filed February 27, 2012. We add the following.

Armerding argues that once Officer Brescia determined the pumps were disabled and no theft of gas had occurred, the officers should have stopped investigating and detaining defendants. However, Brescia testified at the suppression hearing that "[t]here was an extremely strong smell of [raw] marijuana" emanating from the rear of the Subaru which he detected when he first approached.1 That testimony, from a seventeen-year patrol officer, was credited by the suppression court. See State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995) (an officer can recognize the odor of marijuana "by training or experience"). "'Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" State v. Kuropchak, 221 N.J. 368, 382 (2015) (citation omitted).

The "smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband." State v. Myers, __ N.J. Super. __, __ (App. Div. 2015) (slip op. at 10) (quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009), overruled on other grounds, State v. Witt, __ N.J. __ (2015)). The officers were not required to let defendants go on their way, but could briefly detain them to investigate the marijuana odor. State v. Chapman, 332 N.J. Super. 452, 462 (App. Div. 2000). Furthermore, Officer Brescia found the gun only a few moments after he determined the pumps were disabled.

III.

Lloyd-Jones claims that the evidence was insufficient on Counts One, Two, and Four, because the State failed to prove that he constructively possessed the marijuana in the Subaru's cargo area. The trial court rejected this claim in denying both Lloyd-Jones's motion for judgment of acquittal under Rule 3:18-2, and his motion for reconsideration. We reject his claim for substantially the reasons given by Judge Mega in his December 21, 2012 oral opinion. We add the following.

"In assessing the sufficiency of the evidence on an acquittal motion, we apply a de novo standard of review." State v. Williams, 218 N.J. 576, 593-94 (2014). "We must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." Id. at 594. Regarding sufficiency of the evidence, our Supreme Court has held

[W]hen a defendant is one of several persons found on premises where illicit drugs are discovered, it may not be inferred that he knew of the presence of or had control of the drugs and so was guilty of possession, unless there are other circumstances or statements of the defendant tending to permit such an inference to be drawn.

[State v. Palacio, 111 N.J. 543, 550 (1988) (citing State v. Brown, 80 N.J. 587, 593 (1979)).]

In claiming the evidence here was insufficient, Lloyd-Jones relies on State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987). However, our Supreme Court has distinguished that case because "[i]n Shipp, the person in actual possession, defendant's stepmother, had the drugs in sealed envelopes in her handbag, a highly personal and private location suggesting defendant did not have any knowledge of the drugs." Palacio, supra, 111 N.J. at 552. In Palacio, the Court found the evidence sufficient even though the drugs were concealed in a secret compartment, because they "were in the car to which defendant or any other occupant had open and free access." Id. at 551-52. Here, the marijuana was plainly visible in the Subaru's cargo area, which was accessible from the passenger compartment. Thus, "Shipp provides no support for [Lloyd-Jones's] position." State v. El Moghrabi, 341 N.J. Super. 354, 366 (App. Div.) (finding constructive possession where the contraband was on and behind the bench seat behind the defendants), certif. denied, 169 N.J. 610 (2001).

Further, there were other circumstances supporting an inference Lloyd-Jones knew of, and constructively possessed, the marijuana. His "conduct of exiting the vehicle without being told to do so," despite Officer Brescia's order not to exit, "gave rise to a permissible inference of defendant's guilty knowledge of the presence of drugs." State v. Johnson, 274 N.J. Super. 137, 157 (App. Div.) (distinguishing Shipp), certif. denied, 138 N.J. 265 (1994); see Palacio, supra, 111 N.J. at 552. Further, such knowledge could readily been inferred from "the strong odor of raw marijuana coming from the [Subaru]." State v. Scott, 398 N.J. Super. 142, 150 (App. Div. 2006), aff d o.b., 193 N.J. 227 (2008).

Moreover, Lloyd-Jones's possession on his person of marijuana and $2424, and his possession at his feet of a handgun, were all "consistent with defendant's role as a drug trafficker." State v. Bellamy, 260 N.J. Super. 449, 458 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993). All these circumstances, coupled with the testimony of the drug expert opining such a quantity of marijuana was possessed for distribution, were amply sufficient to support a reasonable inference Lloyd-Jones knew of the marijuana in the cargo area, constructively possessed it, and intended to distribute it.

IV.

Lloyd-Jones claims the evidence on Count Four was also insufficient because there was no connection between the gun and the drugs. In State v. Spivey, 179 N.J. 229 (2004), our Supreme Court held that "the jury could reasonably infer that defendant possessed the loaded firearm stored in his kitchen cabinet with the purpose of protecting himself and the drugs found throughout his apartment. The physical and temporal proximity of the weapon and the drugs permits that inference." Id. at 240. Similarly, the jury here could infer that Lloyd-Jones possessed the loaded firearm found under his seat to protect himself and the marijuana found in the cargo area of the Subaru. That was sufficient to support his conviction for possession of a firearm while possessing the marijuana with intent to distribute.

V.

Both defendants challenge the trial court's denial of their request to deviate from the model jury instructions on constructive possession. "'Appropriate and proper jury instructions are essential to a fair trial.'" State v. McKinney, __ N.J. __, __ (2015) (slip op. at 25) (citation omitted). We "must not look at portions of the charge alleged to be erroneous in isolation; rather, '"the charge should be examined as a whole to determine its overall effect."'" Id. at 24 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). "No party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." Jordan, supra, 147 N.J. at 422.

The trial court instructed the jury on possession, including constructive possession, by giving the Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1(c))" (2005). Nonetheless, after the court finished its instructions, defendants asked for the first time that the jury be instructed on "mere presence." The trial court pointed out that the model jury charge contained no such instruction, and that it was "going to stay with the model charges and not deviate."

The trial court's decision was sound. "[I]nsofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005). "The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers." Ibid. There is a "presumption of propriety that attaches to a trial court's reliance on the model jury charge." Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015).

Defendants drew their proposed additional instruction from optional paragraphs in the accomplice instruction.2 However, as the trial court stressed in denying defendants' motion for a new trial, "the State did not charge either defendant under a theory of accomplice liability." Rather, each defendant was charged as a principal, and the court instructed the jury that each defendant could be convicted only if he himself met the requirements for constructive possession. The court found its constructive possession instruction "plainly indicate[d] that a jury must find that a defendant knew of the item's presence and intended to control it." Accordingly, the trial court properly found "no need to include the mere presence language."

Nonetheless, both defendants claim that it was error to instruct the jury on constructive possession without adding their requested instruction on mere presence. Armerding claims that such an instruction is required by Shipp. Armerding also cites a case that cited Shipp, State v. Baker, 228 N.J. Super. 135 (App. Div. 1988). However, neither Shipp nor Baker addressed what jury instruction were required.3

In any event, we rejected those identical claims in State v. Montesano, 298 N.J. Super. 597, 601, 612-15 (App. Div.), certif. denied, 150 N.J. 27 (1997). Despite a specific defense request that a "mere presence" instruction be given based on Shipp, we held that the court's possession instruction "was accurate and was sufficient for the jury to find beyond a reasonable doubt that the defendant possessed the marijuana. Taken as a whole, the charge left no room to doubt that 'mere presence' was insufficient to bring about a finding of the necessary elements of possession." Id. at 615.

Here, the trial court's "Possession" instruction mirrored the possession instruction upheld in Montesano. As in Montesano, the trial court here told the jury that to possess the marijuana, a person must have "knowing, intentional control of that item," and "must know or be aware that he possesses the marijuana and [must] know[] that what it is that he possesses or controls is marijuana." See id. at 612. As in Montesano, the trial court here instructed the jury on constructive possession, namely that "a person may possess marijuana even though it was not physically on his person" if he "is aware of the marijuana and is able to exercise intentional control over it and dominion over it," and "knowingly has both the power and the intention at a given time to exercise control over marijuana, either directly or through another person or persons." See id. at 612-13. As in Montesano, the trial court added that "possession cannot merely be a passing control that is fleeting or uncertain in its nature," because "defendant must knowingly procure or receive the marijuana possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chose to do so." See id. at 613, 615.

As in Montesano, those instructions "resulted in an accurate statement of the law and was sufficient for the jury to consider defendant's guilt based on the correct legal standards." Id. at 615; see State v. Lykes, 192 N.J. 519, 538-39 n. 6 (2007) (citing the "Possession" instruction); State v. Pena, 178 N.J. 297, 305 (2004) (citing Montesano). Thus, under Montesano, the trial court did not err in declining to deviate from the model jury charge on possession.

We add that we found the model charge sufficient in Montesano even though the evidence implicated Montesano's confederate more than Montesano. It was the confederate who carried the large suitcase containing most of the marijuana into the car, had no identification, became nervous and evasive when the car was stopped, and had thousands of dollars on his person. Montesano, supra, 298 N.J. Super. at 603-05. We noted that Montesano "had rented the vehicle and was driving it," made an inculpatory statement, and "had the same drug in [his] bag." Id. at 615. Here, both defendants were in the Subaru which was pervaded with the strong odor of marijuana, Armerding was the registered owner of the Subaru and was driving it, Lloyd-Jones had thousands of dollars and marijuana on his person, both had acted in a suspicious manner at the gas station, and there was a handgun in plain view.

After the trial here, we once again "recognize[d] that ordinarily the model jury instruction [on constructive possession] leaves no 'room to doubt that "mere presence" [is] insufficient to bring about a finding of the necessary elements of possession.'" State v. Randolph, 441 N.J. Super. 533, 559 (App. Div. 2015) (quoting Montesano, supra, 298 N.J. Super. at 612-15).

However, in Randolph, the defendant was found in a third-floor apartment; "the only link between defendant and the second floor apartment [where the drugs were found] was the presence of a letter bearing defendant's name"; and when the jury asked whether there was evidence "about the relationship between Randolph and [the] tenant" of the second-floor apartment, the judge responded that the jurors should use their "common sense." Id. at 557-58; see id. at 545-46. Randolph believed the judge's response told the jurors "that they were free to infer that the State proved defendant's constructive possession by showing that he was in the building." Id. at 561. Randolph opined that the jury's "question had an unambiguous and well-settled legal answer, which is that defendant's mere presence in the building, without more, is a legally insufficient basis to support a finding of constructive possession." Id. at 560-61. Randolph ruled that, "given the paucity of proofs connecting defendant to the CDS found in the apartment, and the jury question suggesting that jurors had concerns about the issue, it was incumbent upon the judge to clearly apprise the jury on the law pertaining to defendant's 'mere presence' in the building." Id. at 559.

Randolph is clearly distinguishable from the case before us. As set forth above, the evidence showing the constructive possession of the marijuana by defendants here was far stronger than in Randolph. Moreover, the jury question which caused "[t]he difficulty" in Randolph was not replicated here. Id. at 558-61. Thus, this case does not fall within the "limited circumstances" in which Randolph believed "the jury charge must be tailored to ensure that the jury understands that 'mere presence' will not suffice." Ibid.4

Defendants note the jury here did ask a question: "If a defendant had knowledge that there was a 50 grams or more bag of marijuana with the intent to distribute, does that make him guilty of distribution himself?" That question did not challenge constructive possession; it assumed that the jury had found from the evidence the defendant knew that there was a bag of marijuana, and indeed had the intent to deliver it. Thus, as the trial court found in denying reconsideration, a "mere presence" instruction would not have been an appropriate answer, and defendants have failed to show "a correlation between the jury's question about distribution of [CDS] and the absence of the mere presence instruction."

Instead, the jury's question asked about a different offense: distribution. After speaking with counsel, the trial court suggested that "the appropriate response should be no, there are no charges of distribution in this case." Counsel for both defendants agreed. Indeed, Lloyd-Jones's counsel stated that the court's answer was "the appropriate answer"; Armerding's counsel said it was "the only answer you can give." The court then told the jury that "I've spoken to counsel and the answer to that question is there are no charges of distribution in this case."5

On appeal, Lloyd-Jones's counseled brief admits the trial court "correctly answered the question," but claims "the answer would have been more thorough and more complete" had the court added a "mere presence" instruction. Armerding's brief claims that the court's answer was "wholly unsatisfactory," and that the court failed to mold the law to the facts of the case after the jurors sought clarification of the law. Both Armerding and Lloyd-Jones's pro se brief claim that the court should have asked the jurors if they meant to ask a different question.

However, we reject those claims. Under the invited error doctrine, a defendant cannot request that the trial court instruct the jury in a particular way, "'and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Ramseur, 106 N.J. 123, 281-82 (1987) (citation omitted); see State v. Williams, 219 N.J. 89, 100 (2014), cert. denied, __ U.S. __, 135 S. Ct. 1537, 191 L. Ed 2d, 565 (2015). Moreover, "[t]he failure of the jury to ask for further clarification or indicate confusion demonstrates that the response was satisfactory." State v. McClain, 248 N.J. Super. 409, 421 (App. Div.), certif. denied, 126 N.J. 341 (1991).

VI.

Armerding raises several other challenges to the jury instructions, but failed to raise those challenges in the trial court. Accordingly, he must show plain error. R. 2:10-2. He must demonstrate "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Camacho, 218 N.J. 533, 554 (2014) (citation omitted). We must hew to that standard of review.

Generally, "trial counsel's failure to request an instruction gives rise to a presumption that he did not view its absence as prejudicial to his client's case." State v. McGraw, 129 N.J. 68, 80 (1992). A claim of prejudice "'must be evaluated in light of the totality of the circumstances including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008) (alteration in original) (citation omitted). An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a '"poor candidate[] for rehabilitation" under the plain error theory.' Nevertheless, any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" State v. Burns, 192 N.J. 312, 341 (2007) (citations omitted); accord State v. Walker, 203 N.J. 73, 90 (2010).

A.

First, Armerding on appeal challenges the underlined portion of the trial court's instruction that "[c]onstructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it." However, that was the precise language of the Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1)" (2005). Further, our Supreme Court in Brown held that a "trial judge correctly defined constructive possession as 'possession in which the property, though not physically on one's person is so located that he's aware of the presence of the property and is able to exercise intentional control over it.'" Brown, supra, 80 N.J. at 600 (citation omitted).

Armerding notes that constructive possession requires intent to control, not just the ability to exercise intentional control. See Brown, supra, 80 N.J. at 597.6 However, the trial court conveyed the requirement of intent to control by immediately reading the next sentence in the 2005 model charge: "So someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it . . . is then in constructive possession of that item." See Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1)" (2005). The court also specifically instructed that a person who "knowingly has both the power and the intention at a given time to exercise control over the marijuana . . . is then in constructive possession of it."7

Armerding contends this instruction contradicted the challenged language, but the drafters of the 2005 model jury charge plainly felt the two consecutive sentences were compatible. Indeed, defendants saw no basis to object to the challenged instruction. See State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) ("'Where there is a failure to object, it may be presumed that the instructions were adequate.'"), certif. denied, 205 N.J. 81 (2011). "Under the plain error standard, 'defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citation omitted). Armerding has failed to show clear or obvious error. See State v. Nelson, 173 N.J. 417, 471 (2002).

Armerding claims the trial court's instructions on constructive possession caused confusion in the prosecutor's summation, but summation preceded the court's charge. Moreover, though the prosecutor initially described constructive possession without mentioning intent, she mentioned intent after Armerding's counsel objected.8 In any event, the prosecutor twice told the jury that the trial court would instruct them on the law of possession and "[w]hatever the Judge says trumps whatever we say." The court similarly instructed that "any statements by the attorneys as to what the law may be must be disregarded by you if they are in conflict with my charge." Courts "act on the belief and expectation that jurors will follow [such] instructions." State v. T.J.M., 220 N.J. 220, 237 (2015). Armerding has not shown plain error.

B.

Armerding's second instructional claim on appeal concerns the word "attempted" in the trial court's instruction on intent to distribute: "In regard to the third element, that the defendant had the intent to distribute [the marijuana] in evidence, distribute means the transfer, actual, constructive, or attempted, from one person to another of a controlled dangerous substance." This instruction was taken verbatim from the Model Jury Charge (Criminal), "Possession Of A Controlled Dangerous Substance With Intent To Distribute (N.J.S.A. 2C:35-5)" (2008). The model instruction was based on N.J.S.A. 2C:35-2, which provides that "'[d]istribute' means to deliver," and that "'[d]eliver' or 'delivery' means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance[.]"

Armerding argues the trial court sua sponte should have instructed the jury on attempt. However, defendants made no such request. Moreover, there was nothing in the indictment or the evidence suggesting attempted distribution, only intent to distribute. Even if "the judge's failure to charge the jury [on] attempt was in error, this error was not sufficient to lead the jury to a result it would not have otherwise reached." See Belliard, supra, 415 N.J. Super. at 74. Again, Armerding has not shown plain error.

C.

Lastly, Armerding contends on appeal that the trial court should sua sponte have charged the jury under accomplice case law such as State v. Savage, 172 N.J. 374 (2002), and State v. Fair, 45 N.J. 77 (1965). He quotes Savage

If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.

[Id. at 388 (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting Fair, supra, 45 N.J. at 95)).]

However, those cases addressed the instructions required "[w]hen a prosecution is based on the theory that a defendant acted as an accomplice" and "'when lesser included offenses are submitted to the jury.'" Ibid. (quoting Bielkiewicz, supra, 267 N.J. Super. at 528).9 Here, defendants were not charged as accomplices, so there was no occasion for the trial court to give such an instruction. See State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996) (finding no Bielkiewicz error where "[t]he accomplice instruction was not given with respect to [a] count, thus obviating the possibility that that instruction negatively impacted on that conviction").10

Armerding argues such an instruction was needed to give the jury the proper legal standards to determine if a defendant was guilty of a different marijuana crime than his co-defendant. To the contrary, the trial court correctly instructed the jury on the legal requirements for both possession of marijuana, and possession of marijuana with intent to deliver. The court also instructed the jury that it had to determine each defendant's guilt individually and separately on each count, as stated on the verdict sheets. "In these circumstances, where the indictment substantively charged defendant with both the greater and lesser-included offenses, and the trial court properly instructed the jury in respect of each, the evil Bielkiewicz seeks to guard against . . . does not pose the same risk," even if a flawed accomplice charge was given. Ingram, supra, 196 N.J. at 40. "Once the jury is instructed as to these principles [of actual, constructive, and joint possession], which is what occurred here, the giving of an erroneous accomplice charge is, at most, harmless." Cook, supra, 300 N.J. Super. at 490. Thus, there was no plain error.

VII.

Finally, Lloyd-Jones claims his sentence is excessive. "Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [this] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (citation omitted).]

An appellate court is "'bound to affirm a sentence, even if [it] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted).

The pre-sentence report (PSR) set forth Lloyd-Jones's criminal record. He had an adult conviction for robbery in New York. From 2004 through 2010, he had eight convictions in Municipal Court, including multiple convictions for drug possession, possession of drug paraphernalia, and drug-related prowling. He was on probation when he committed the instant crimes. Judge Mega cited Lloyd-Jones's "extensive" if "low-level" record involving drug offenses, and the seriousness of his robbery offense. Thus, we find no basis to overturn the court's finding of aggravating factor six, N.J.S.A. 2C:44-1(a)(6).

Moreover, the court found the risk that Lloyd-Jones would commit another offense, based on his record and the current offense, was greater because of the lack of success of prior diversionary programs, including his five-year probationary term in New York for robbery, a conditional discharge after a guilty plea for selling marijuana in New York, his recent probation, and his failure to pay fines. The court found this risk was heightened by Lloyd-Jones's drug use and lack of stable employment. Thus, we find no basis to overturn the court's finding of aggravating factor three, N.J.S.A. 2C:44-1(a)(3). See Grate, supra, 220 N.J. at 337 (finding "ample evidence" for this factor where the defendant had "two downgraded convictions" for violent offenses and was being sentenced for handgun offenses).

Finally, the court found a need for deterring Lloyd-Jones and others from violating the law. As Lloyd-Jones notes, "'general deterrence unrelated to specific deterrence has relatively insignificant penal value.'" Case, supra, 220 N.J. at 68 (citation omitted). However, the court specifically found a need to stop Lloyd-Jones's behavior, as evidenced by his extensive record. The court also cited Lloyd-Jones's failure to appreciate the gravity of the current crimes, as apparent in his version of events in the PSR, which simply stated that the gun or the drugs were in the car without taking any responsibility. Thus, we find no basis to overturn the court's finding of aggravating factor nine, N.J.S.A. 2C:44-1(a)(9). See Grate, supra, 220 N.J. at 337 (upholding this factor, citing the judge's statement that "handguns on a college campus . . . is a dangerous situation, and absolutely cannot be tolerated").

Because these crimes were Lloyd-Jones's first indictable convictions in New Jersey, the court found mitigating factor seven, but rightly gave it "very minimal weight" because it requires that "defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7). The court properly found that mitigating factor was outweighed by the aggravating factors.

Lloyd-Jones complains the trial court did not impose the lowest possible prison term for the gun offenses of five years, and for the drug offense of three years. Yet at sentencing, he asked for a prison term of six years on the gun offenses, with a four-year term on the drug offenses. In any event, even though the three aggravating factors outweighed the very weak mitigating factor, the court's eight-year sentences for the gun offenses were near, and its four-year sentence for the drug offense was at, the middle of the range. Cf. Case, supra, 220 N.J. at 64-65 (noting that "when the aggravating factors preponderate, sentences will tend toward the higher end of the range").11

"Appellate review of a criminal sentence is limited; a reviewing court decides whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (citation omitted). Lloyd-Jones has failed to make that showing. We may "not second-guess the sentencing court." Case, supra, 220 N.J. at 65.

Affirmed.

1 When challenged on cross, Brescia repeated that he "smelled a lot of marijuana" from "[p]retty close to the beginning." Because this testimony duplicated his testimony on direct, we reject Armerding's claim that his defense counsel was ineffective for eliciting it.

2 See Model Jury Charge (Criminal), "Liability For Another's Conduct (N.J.S.A. 2C:2-6) Accomplice" at 2-3 (1995).

3 Moreover, as set forth above, the evidence of constructive possession here was stronger than in Shipp. The evidence here was also stronger than in Baker, supra, 228 N.J. Super. at 138, 143, where the drugs were hidden behind a closed plastic panel on the back of the front passenger seat, the defendants were passengers, and there was no evidence they behaved suspiciously. See El Moghrabi, supra, 341 N.J. Super. at 366-67 (distinguishing Shipp and Baker); Montesano, 298 N.J. Super. at 613 (distinguishing Shipp).

4 Because Randolph is distinguishable, we need not address whether a mere difference in the strength of otherwise sufficient evidence alone should necessitate a change in the jury instructions.

5 Lloyd-Jones's pro se brief asserts that the court's answer should have been proceeded with the word "no." However, with or without such a preface, the court's answer told the jury that a defendant could not be "guilty of distribution himself" because "there are no distribution charges in this case."

6 The challenged sentence in the model charge was amended after the trial to state that "[c]onstructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it." Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1)" (2014). However, "[i]t is not plain error when jury instructions are not incorrect but merely capable of being improved." State v. Tierney, 356 N.J. Super. 468, 481 (App. Div.), certif. denied, 176 N.J. 72 (2003).

7 In addition, the court twice gave this instruction regarding constructive possession of the handgun.

8 The State also represents, without contradiction, that the prosecutor during summation displayed to the jury a poster of the elements of possession which stated that possession required knowing, intentional control. The trial court repeatedly so instructed the jury.

9 The language defendant quotes is reflected in the accomplice instruction addressing lesser-included offenses. Model Jury Charge (Criminal), "Liability For Another's Conduct (N.J.S.A. 2C:2-6) Accomplice" (under "CHARGE # ONE," applicable "[w]here defendant is charged as accomplice and jury is instructed as to lesser included charges") at 3-4 (1995); see State v. Ingram, 196 N.J. 23, 37, 40 (2008).

10 Armerding does not contend that the trial court should have sua sponte instructed the jury, that Armerding, who claimed to be uninvolved, could also be convicted under accomplice liability. In any event, [w]hen the State's theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not involved in the crime at all, then the judge is not obligated to instruct on accomplice liability. State v. Maloney, 216 N.J. 91, 106 (2013).

11 Lloyd-Jones acknowledges his sentences for possessing with intent to distribute, and for possession of a firearm while committing that offense, had to run consecutively. N.J.S.A. 2C:39-4.1(d). Moreover, he had to receive parole ineligibility of one-half of his sentence or three years, whichever was greater. N.J.S.A. 2C:43-6(c) (2008).