On certification to the Superior Court, Appellate Division, whose opinion is reported at 157 N.J. Super. 110 (1978).
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Schreiber and Handler. For affirmance -- Justices Pashman and Clifford. The opinion of the court was delivered by Handler, J. Pashman, J., dissenting. Justice Clifford joins in this dissenting opinion.
A Hudson County Grand Jury indicted Willie Lee Brown and his wife, Leona, on counts charging unlawful possession of heroin and unlawful possession of heroin with intent to distribute, in violation of N.J.S.A. 24:21-20(a) and N.J.S.A. 24:21-19(a)(1). Following a severance, defendant Willie Lee Brown moved to suppress the evidence obtained during the search of his apartment, contending that the affidavit underlying the search warrant had failed to establish probable cause. The motion was denied and the case proceeded to trial.
The crux of the appeal, as certified by this Court, 77 N.J. 496 (1978), is the sufficiency of the State's evidence to support defendant's convictions. The State's proofs at trial showed generally that from May 13, 1971 through May 16, 1971 Detective Edward Myers, a member of the Jersey City Police Department Narcotics Squad, sat in a black van outside a four-story red brick dwelling, containing front and back apartments, located at 185 Monticello Avenue, Jersey City, and conducted a surveillance of suspected narcotics operations. From this vantage point Myers noticed about 20 to 25 males, including several known narcotics users, enter the
building, and, soon afterward, exit surreptitiously. On May 16 Detective Myers applied to the Jersey City Municipal Court for a warrant to search the premises of Apartment 10 of the building he had watched. Shortly thereafter, armed with the warrant, Myers and five other police officers conducted a search of Apartment 10. They were admitted into the apartment by the defendant. After frisking Brown at the door, Myers proceeded into a rear bedroom where he found an individual named Wallace Young with 12 glassine envelopes containing white powder in his right pants pocket. Another officer entered a different bedroom where he found 50 glassine envelopes containing white powder inside the pocket of a white dress in the bedroom closet. Further search of the apartment uncovered empty glassine bags and elastic bands, paraphernalia customarily used for packaging narcotics. The 50 envelopes and their contents, which were heroin, were admitted into evidence. It was valued at $3 to $5 a bag or between $150 and $250. After his arrest, defendant admitted to the police that he lived in the apartment.
At the conclusion of the State's case, the defendant moved for a directed verdict of acquittal on both counts. He stressed the absence of testimony indicating whether the quantity of heroin found was for personal consumption or sale, the failure to establish any connection between the individuals who had surreptitiously left the apartment building and the heroin found in Apartment 10, the failure to establish Brown's residency in that apartment, the lack of culpable conduct by the defendant and the absence of any money in the apartment. The motion was denied. The defendant then rested and, following the summations and instructions, the case was submitted to the jury which returned a unanimous verdict of guilty on both counts. A post trial motion to vacate the convictions and grant a new trial on the grounds that the verdict was against the weight of the evidence and would produce manifest injustice was denied and defendant was, thereafter, sentenced to concurrent terms at the State Prison of three to five years on the two counts.
On the appeal to the Appellate Division the defendant's primary contentions were that the search warrant lacked probable cause and the trial court erred in denying the motion for a new trial, since the jury's verdict was against the weight of the evidence. The Appellate Division, in a per curiam decision reported at 157 N.J. Super. 110 (1978), reversed and remanded for entry of a judgment of acquittal.*fn1 Applying State v. Sapp, 71 N.J. 476 (1976), rev'g on dissenting opinion below, 144 N.J. Super. 455, 460 (App. Div. 1975), it concluded that the State's case was insufficient as a matter of law. 157 N.J. Super. at 114. The court also ruled that the trial court's charge on possession constituted error. Id. at 116-117. The suppression issue was not treated. We now reverse and remand.
The primary argument presented in this appeal is whether there was sufficient evidence to find defendant guilty of the constructive possession of heroin as well as its possession with intent to distribute. The basic test to be applied in challenging the sufficiency of the evidence 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 all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
This standard is consistent with that articulated by the United States Supreme Court which stated recently in Jackson v. Virginia, U.S. , , 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979):
After [ In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)] the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S. 276, 282, 87 S. Ct. 483, 486, 17 L. Ed. 2d 362. Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362, 92 S. Ct. 1620, 33 L. Ed. 2d 152. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law. (footnotes omitted) (emphasis in original).
This Court has decided generally 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. DiRienzo, 53 N.J. 360, 376 (1969). See also, Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57, 82 (1969). Nevertheless, the State's right to the benefit of reasonable inferences should not be used to shift or lighten the burden of proof, or become a bootstrap to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt. Ulster County Court v. Allen, U.S. , 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see Sandstrom v. Montana, U.S. , , 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. DiRienzo, supra, 53 N.J. at 373-382. Also, In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-1073, 25 L. Ed. 2d 368, 375
(1970); Turner v. United States, 396 U.S. 398, 417-424, 90 S. Ct. 642, 652-656, 24 L. Ed. 2d 610, 624-627 (1970); cf. Jackson v. Virginia, supra.
The court below ruled the evidence insufficient on the strength of State v. Sapp, supra. The Appellate Division believed that the evidence, viewed in a light most favorable to the State, disclosed only that the defendant was present and living in the apartment when narcotics were found in a bedroom closet in the pocket of a dress belonging to some unknown person and additional narcotics were found in the possession of another person, who was also present. 157 N.J. Super. at 114. In its view there were no other relevant circumstances to suggest that defendant even knew drugs were there or could control them. Id. at 116. The court concluded that nothing beyond defendant's "mere presence or residence" supported a finding of constructive possession. Id. at 115.
In State v. Sapp, supra, we endorsed the general proposition, as stated in the dissenting opinion of the Appellate Division, that:
Where * * * 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 or had control of the drugs unless there are other circumstances or statements of ...