STATE OF NEW JERSEY v. ABRAHAM MCFARLAND

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3412-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ABRAHAM MCFARLAND,

     Defendant-Appellant.
____________________________

              Submitted October 23, 2017 – Decided April 16, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 13-07-0572.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Stephen
              C. Sayer, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Abraham McFarland appeals from his conviction for

second-degree unlawful possession of a handgun, 
N.J.S.A. 2C:39-
5(b).   He claims the court's jury instructions on the elements of

the offense were erroneous and require reversal of his conviction.

We disagree and affirm.

                                   I.

     Defendant   was    charged   in    an   indictment   with   unlawful

possession of a .380 caliber handgun without first obtaining a

permit to carry a firearm.     The trial evidence showed that during

the execution of an arrest warrant at co-defendant John W. Lee's

apartment, police recovered a .25 caliber handgun and a .380

caliber handgun from a bedroom hamper.

     Defendant was arrested at the apartment with John W. Lee and

Tymonn S. Lee.     During defendant's recorded police interrogation

that was played for the jury, he admitted ownership of the .380

caliber handgun.       There was also testimony that in a separate

interrogation, John W. Lee admitted ownership of the .25 caliber

handgun.1   Without objection, the State introduced into evidence



1
   John W. Lee and Tymonn S. Lee were charged in the indictment
with two drug-related offenses. John W. Lee was also charged with
second-degree unlawful possession of the .25 caliber handgun while
committing the crime of possessing a controlled dangerous
substance, 
N.J.S.A. 2C:39-5(b)(1), and second-degree possession
of the handgun by a certain person prohibited from possessing a
handgun, 
N.J.S.A. 2C:39-7(b)(1). The record shows the charges
against John W. Lee were resolved prior to defendant's trial. The
record does not disclose the disposition of the charges against
Tymonn S. Lee.    In any event, defendant was tried as a single
defendant on the sole charge in the indictment against him.

                                   2                              A-3412-15T4
a   State   Police   Firearms   Unit       representative's   certification

stating the pertinent records showed defendant "never had a permit

to carry a handgun in the State of New Jersey."           An officer also

testified the investigation revealed the recovered guns were not

purchased using a permit.

      During the charge conference, the court said it would instruct

the jury concerning the elements of unlawful possession of a

handgun under 
N.J.S.A. 2C:39-5(b), and provided counsel with a

copy of proposed final jury instructions that included the model

jury charge for the offense.      See Model Jury Charges (Criminal),

"Unlawful Possession Of A Handgun (N.J.S.A. 2C:34-5(b))" (rev.

Feb. 26, 2001).      Defense counsel's only objection to the proposed

charge on the offense was to the inclusion of an instruction on

joint possession.      The court overruled the objection.

      Consistent with the discussions during the charge conference,

in its final jury instruction the court stated defendant was

charged with unlawful possession of a weapon.          The court explained

the statute upon which the charge was based provides that

            [a]ny person who knowingly has in his
            possession any handgun, without first having
            obtained a permit to carry the same, is guilty
            of a crime.

            [(Emphasis added).]




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     Utilizing   the   model   jury   instruction,   the   court   then

separately defined the elements of the crime, explaining the State

was required to prove three essential elements: (1) the gun

introduced into evidence was a handgun: (2) defendant knowingly

possessed the handgun, and (3) "[d]efendant did not have a permit

to possess such a weapon."      (Emphasis added).     See Model Jury

Charges (Criminal), "Unlawful Possession Of A Handgun (N.J.S.A.

2C:34-5(b))" (rev. Feb. 26, 2001).

     After providing further instructions concerning the first two

elements of the offense, the court addressed the third element,

stating:

           The third element that the State must prove
           beyond a reasonable doubt is that the
           [d]efendant did not have a permit to possess
           such a weapon – a handgun.

           If you find that the [d]efendant knowingly
           possessed the handgun and that there is no
           evidence that the [d]efendant had a valid
           permit to carry such a handgun, then you may
           infer, if you think it appropriate to do so,
           based   upon   the  facts   presented,  that
           [d]efendant had no such permit.

           Note, however, that as with all other
           elements, the State bears the burden of
           showing beyond a reasonable doubt the lack of
           a valid permit and that you may draw the
           inference only if you feel it appropriate to
           do   so   under   all  of   the   facts   and
           circumstances.




                                  4                            A-3412-15T4
     Later in the charge, the judge explained the verdict sheet

to the jurors.    The judge said:

            The only question you need to answer is
            question number one, Possession of a Weapon.
            How do you find the Defendant on the charge
            that on or about the 19th day of February 2013,
            . . . knowingly did possess a certain weapon;
            that is a . . . 380 caliber handgun . . .
            without first having obtained a permit to
            carry a firearm in accordance with the
            provisions of 
N.J.S.A. 2C:58-4.

            [(Emphasis added).]

The jury was given a verdict sheet restating the question in

accordance with the judge's instructions.

     After being advised the jury reached a verdict, the judge

polled each juror, asking, "How do you find the [d]efendant on the

charge that on or about the 19th day of February 2013, . . . [he]

knowingly did possess a . . . 380 caliber handgun . . . without

having first obtained a permit to carry a firearm, in accordance

with the provisions of N.J.S.A. 2C:58-4?"     Each juror stated they

found defendant guilty of the charge.

     The court sentenced defendant to a five-year custodial term

with a three-year period of parole ineligibility.        This appeal

followed.

     On appeal, defendant presents the following argument:




                                    5                         A-3412-15T4
               POINT I

               THE JURY INSTRUCTION ON UNLAWFUL POSSESSION
               OF A WEAPON WITHOUT A CARRY PERMIT IMPROPERLY
               TOLD THE JURY THAT THE "PERMIT" ELEMENT
               REQUIRED THE STATE TO PROVE THAT THE DEFENDANT
               DID NOT HAVE A "PERMIT TO POSSESS" THE WEAPON;
               PARTICULARLY WHEN THERE WAS EVIDENCE IN THE
               CASE ABOUT BOTH PURCHASER PERMITS AND CARRY
               PERMITS, REFERRING TO A NONEXISTENT "PERMIT
               TO POSSESS" THE GUN FAILED TO PROPERLY INFORM
               THE JURY OF THAT ELEMENT OF THE CRIME. (NOT
               RAISED BELOW).

                                       II.

     In    pertinent       part,   
N.J.S.A.      2C:39-5(b)(1)     provides      that

"[a]ny    person         who   knowingly       has   in    his    possession      any

handgun    .     .   .   without first having obtained a permit to carry

same as provided in 
N.J.S.A. 2C:58-4, is guilty of a crime of the

second degree."          (Emphasis added).       The "absence of a permit" to

carry    "is    an   essential     element     of    the   offense"   of   unlawful

possession of a handgun, 
N.J.S.A. 2C:39-5(b), "and thus, one to

be determined by the jury."          State v. Ingram, 
98 N.J. 489, 494-95

(1985).    Our Supreme Court has held a trial court's refusal to

instruct the jury on the State's burden of proving the absence of

a license to carry requires reversal of a conviction under 
N.J.S.A.

2C:39-5(b).      State v. Vick, 
117 N.J. 288, 289, 292-93 (1989).                 The

State bears the burden of proving a defendant knowingly possessed

a handgun without a permit to carry a handgun.                   See ibid.



                                           6                                 A-3412-15T4
     For the first time on appeal, defendant claims the court

erred in defining the third element of unlawful possession of a

handgun under 
N.J.S.A. 2C:39-5(b).      More particularly, defendant

argues   
N.J.S.A.   2C:39-5(b)   prohibits   possession   of   a   handgun

"without first having obtained a permit to carry . . . [the

handgun] as provided in N.J.S.A. 2C:58-4," (emphasis added), but

the court instructed that the State was required to prove defendant

possessed the handgun while he "did not have a permit to possess

such a weapon." (Emphasis added).

     Defendant asserts the purported error was clearly capable of

producing an unjust result because there was evidence defendant

lacked both a permit to purchase and a permit to carry the handgun.

Defendant contends the instruction's reference to the "permit to

possess" may have confused the jury and resulted in a guilty

verdict founded on the absence of a purchaser's permit, and not

on the absence of the carry permit specified in 
N.J.S.A. 2C:39-

5(b).    We are not persuaded.

     "[A]ppropriate and proper charges [to a jury] are essential

for a fair trial."     State v. Baum, 
224 N.J. 147, 158-59 (2016)

(quoting State v. Reddish, 
181 N.J. 553, 613 (2004)).              "Because

proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the



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capacity to unfairly prejudice the defendant." Id. at 159 (quoting

State v. Bunch, 
180 N.J. 534, 541-42 (2004)).

     However, where there is no objection to the jury charges, "it

may be presumed that the instructions were adequate."           State v.

Belliard, 
415 N.J. Super. 51, 66 (App. Div. 2010) (quoting State

v. Morais, 
359 N.J. Super. 123, 134-35 (App. Div. 2003)).               "A

claim of deficiency in a jury charge to which no objection is

interposed 'will not be considered unless it qualifies as plain

error.'"    State v. R.B., 
183 N.J. 308, 321 (2005) (quoting State

v. Hock, 
54 N.J. 526, 538 (1969)).

     A defendant who fails to object to a jury charge at trial

bears   a   "considerable"   burden    and   must   establish     "legal

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."    Ibid.   (quoting Hock, 
54 N.J. at 538); accord State v.

Burns, 
192 N.J. 312, 341 (2007).      Defendant fails to sustain that

burden here.

     In our assessment of the court's jury charge, we do "not look

at portions of the charge alleged to be erroneous in isolation."

State v. McKinney, 
223 N.J. 475, 494 (2015).         We consider the

charge "'as a whole to determine its overall effect,' and 'whether

                                  8                              A-3412-15T4
the challenged language was misleading or ambiguous.'"                    Ibid.

(internal citations omitted) (first quoting State v. Jordan, 
147 N.J. 409, 422 (1997); and then quoting State v. Nelson, 
173 N.J.
 417, 447 (2002)).         Applying these principles, we are satisfied

that when the charge is considered in its entirety, the court's

reference to the "permit to possess" was neither misleading nor

ambiguous. See id. at 494.

       The court first explained defendant was charged under a

statute   proscribing      possession     of   a   handgun   without     having

obtained a "permit to carry."        Although the subsequent instruction

concerning the elements of the offense refers to a "permit to

possess," the court provided a more specific instruction that if

the jury determined defendant knowingly possessed the handgun and

there was no evidence "[d]efendant had a valid permit to carry

such a handgun," it could infer defendant "had no such permit."

The court also instructed that the State had the burden of proving

"the lack of a valid permit," and explained that the jury could,

if it chose to do so, draw the inference there was a lack of a

valid permit based on the evidence showing the lack of a "permit

to carry."    Thus, the instruction, when viewed in its entirety,

used   the   terms    "permit   to   possess"      and   "permit   to    carry"

interchangeably      to   properly   define    the   State's   burden     under


N.J.S.A. 2C:39-5(b).

                                      9                                 A-3412-15T4
     The court also expressly instructed the jury that the only

issue it was required to decide was whether defendant was guilty

of knowingly possessing the handgun "without having first obtained

a permit to carry a firearm."   The verdict sheet required the jury

to determine defendant's guilt based on that issue, and each juror

separately stated they found defendant guilty of that precise

offense.

     We are not persuaded by defendant's contention that because

there was testimony the gun was purchased without a purchase

permit, the reference to a "permit to possess" in the charge may

have confused the jury.   As noted, the totality of the court's

instructions made clear the State was required to prove defendant

did not have a permit to carry. Moreover, the testimony concerning

the permit to purchase was fleeting, the jury was never advised

defendant was charged under a statute proscribing possession of a

weapon without a permit to purchase, and the jury charge makes no

reference to a permit to purchase.

     "[P]ortions of a charge alleged to be erroneous cannot be

dealt with in isolation but the charge should be examined as a

whole to determine its overall effect."     State v. Marshall, 
123 N.J. 1, 135 (1991) (quoting State v. Wilbely, 
63 N.J. 420, 422

(1973)).   When considered in their totality, there is nothing in

the jury instructions that permits a reasoned conclusion the jury

                                10                          A-3412-15T4
may have convicted defendant based on a finding he did not have a

permit to purchase the handgun, and we find no basis to conclude

the instructions included any legal impropriety prejudicially

affecting defendant's rights or possessing the clear capacity to

bring about an unjust result.        See R.B., 
183 N.J. at 321.

     We   last   observe   the    judge   honored   the   requirement   that

"insofar 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[,]" because "[t]he process by which model

jury instructions are adopted in this State is comprehensive and

thorough."   Id. at 325.         Although the court's use of the model

jury charge "is not determinative, it is a persuasive argument in

favor of the charge as delivered." State v. Angoy, 
329 N.J. Super.
 79, 84 (App. Div. 2000).

     Affirmed.




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