On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Antell and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
[197 NJSuper Page 206] Defendants were convicted after trial on Monmouth County Indictment No. 125-81 of six weapons' offenses, two involving a sawed-off shotgun and four involving two handguns. As to the shotgun, they were convicted of possession of a prohibited weapon in violation of N.J.S.A. 2C:39-3b (Count One), and possession of a shotgun with a purpose to use it unlawfully in violation of N.J.S.A. 2C:39-4a (Count Two). As to each of the handguns, defendants were found guilty of possession without obtaining a permit to carry in violation of N.J.S.A. 2C:39-5b and 2C:58-4 (Counts Five and Seven), and of possession of each handgun with a purpose to use it unlawfully in violation of
N.J.S.A. 2C:39-4a (Counts Six and Eight).*fn1 Each defendant*fn2 has appealed. We affirm the convictions as modified by merger and remand as to some of the sentences imposed.
Since all four defendants were convicted of the same offenses which arise out of the same factual circumstances and defendants advance similar appellate arguments, we have consolidated their appeals sua sponte. To the extent that a particular argument applies to only one defendant, it will be treated separately. We consider the following appellate arguments as applying to all defendants: (1) the motions for judgment of acquittal at the end of the State's case should have been granted; (2) the verdict was against the weight of the evidence; (3) the court's charge to the jury on possession of firearms with a purpose to use them unlawfully against the person or property of another unconstitutionally shifted the burden of proof to defendants and denied them due process, and (4) certain of the convictions should have been merged at the time of sentencing.
I. DENIAL OF MOTION FOR JUDGMENT OF ACQUITTAL
A motion made by defendant Williams for a judgment of acquittal at the end of the State's case was treated as having been made by all defendants and denied by the trial judge. It
is well settled that at the close of the State's case the trial judge must grant defendant's motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The question the trial judge must determine 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." State v. Brown, 80 N.J. 587, 591 (1979), citing with approval State v. Reyes, 50 N.J. 454, 458-459 (1967).
At the conclusion of the State's case, the evidence presented developed the following facts. Defendants Wade, Williams and Payne were observed at 3:01 a.m. seated in an automobile with the engine running and the headlights off. The car was stopped on the east side of West Street facing north, just north of the intersection of Monmouth and West Streets in Red Bank. A vacuum cleaner store, located on the northeast corner of that intersection faces Monmouth Street and has a parking lot on the west and north side of the building reached by a driveway from West Street. Approximately seven to ten feet from the east side line of West Street is a row of hedges approximately seven feet high and running about 15 to 20 feet along the west side of the parking lot.
The four-door automobile was first observed by Police Officer Scott, riding as a passenger in a patrol car operated by Officer Kane, as they drove northbound on West Street past the vehicle. Wade was behind the wheel, Williams was in the rear seat behind Wade, and Payne was seated to the right of Williams also in the rear seat. The officer had previously observed Latimore walking east on Monmouth Street in front of the vacuum cleaner store.
The police officers went around the next block, came southbound on West Street, stopped and spoke to Wade who said he
was waiting for a friend who was visiting a cousin, and pointed to the area of Monmouth Street. The officers told defendants to leave the area. As the officers turned left into Monmouth Street, they observed Latimore now walking west on Monmouth Street toward the car. After making a U-turn, the police officers proceeded west on Monmouth Street and made a right turn into West Street. As they approached, Latimore again changed his direction away from the parked vehicle and walked to the northwest corner of the intersection. The officers again proceeded past the parked vehicle. When they were approximately one block beyond, Officer Scott looked back and observed the right rear door open and Payne, who he noted was shorter than the others and wearing a baseball cap, step out of the car and walk toward the hedges. The officer did not observe Payne carrying anything.
The patrol car turned around and returned to the parked vehicle. At this time, the officer asked defendants for identification, which they were unable to provide. Wade advised the officer that he did not own the vehicle, and Williams indicated that it was owned by Latimore who was then standing on the corner. In response to an inquiry from Officer Scott as to what he was doing out of the car near the bushes, Payne denied being out of the car. Latimore was called over to the car and presented his license, registration and insurance certificate. When the officers told him to leave the area, Latimore got behind the wheel, Wade moved to the passenger side, and the vehicle proceeded north on West Street.
The officers decided to go back and check the hedges. Upon doing so they found a 12-gauge sawed-off shotgun and a handgun lying on the ground underneath the hedges. A description of the vehicle and its occupants was relayed to headquarters. While writing down the information, Officer Coutu, in another patrol car, observed defendants' automobile turn into Monmouth Street from Bridge Street and proceed east past the intersection of Monmouth and West Street at a very slow rate of speed with the occupants looking back and forth and watching
his patrol car following them. The original officers stopped the vehicle and placed the four occupants under arrest. As a result of a search, they found a 12-gauge Remington shotgun shell in the pocket of the jeans worn by defendant Payne. A similar shell had been found in the barrel of the shotgun. Officer Coutu returned to the hedges about 15 minutes later and found a second handgun covered by two or three leaves in the same area where the other guns had been found. It was stipulated that the guns were operable and that a fingerprint on the sawed-off shotgun did not belong to any of the defendants.
In order to prove possession, the State must show "intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by knowledge of its character." State v. Brown, 80 N.J. at 597; State v. Davis, 68 N.J. 69, 82 (1975). "Possession does not necessarily mean actual physical possession; it is enough that defendant have 'intentional control and dominion' over the object." State v. Humphreys, 54 N.J. 406, 413-414 (1969). Thus the law recognizes that possession may be constructive as well as actual. If two or more persons share actual or constructive possession of a thing, possession is joint, that is, if they knowingly share control over the article. Thus possession need not be exclusive but may be jointly exercised by two or more persons. State v. Brown, 80 N.J. at 597; State v. Puckett, 67 N.J. Super. 365, 376 (App.Div.1960), aff'd 34 N.J. 574 (1961). Proof of possession may be by circumstantial evidence as well as direct evidence. See State v. Humphreys, 54 N.J. at 413-414; State v. Reyes, 98 N.J. Super. 506, 512 (App.Div.1968), certif. den. 51 N.J. 582 (1968); State v. Rajnai, 132 N.J. Super. 530, 536 (App.Div.1975).
We have carefully examined all of the evidence presented by the State, and all inferences which could reasonably be drawn therefrom, and conclude that the motion was properly
denied. The observation made by Officer Scott of Payne going from the automobile to the hedges, coupled with the discovery underneath those same hedges of the shotgun and two handguns, and the 12-gauge shotgun shell in Payne's pocket, are all sufficient circumstances to create an inference that the guns had been in the automobile. There was direct evidence that Wade, Williams and Payne were all in the automobile at the time Payne was observed leaving it and that Latimore owned the automobile and drove it from the scene. Clearly the sawed-off shotgun, received into evidence, was the type of weapon the possession of which is prohibited by N.J.S.A. 2C:39-3b.
Defendants contend that the evidence was insufficient to show possession of the firearms with a purpose to use them unlawfully against the person or property of another under N.J.S.A. 2C:39-4a.
At the time it was observed by the police, the car was parked, at 3:01 a.m., with the engine running and the lights out, in a residential and commercial area, with a man walking in front of a commercial establishment. Only Latimore produced identification. Although he was observed by Officer Scott, Payne denied getting out of the car. After being directed to leave the area, the vehicle returned to the scene where the guns had been left. All of these proven circumstances, coupled with the statutory inference of possession of weapons found in a vehicle by all occupants of that vehicle, are sufficient to establish joint possession of these weapons by all four occupants. The circumstance that the vehicle was parked at an early hour of the morning with the engine running and the lights out is sufficient to support an inference that the weapons were possessed with a purpose to use them unlawfully at least against the property of another. See State v. Brown, 80 N.J. at 596, and State v. Hock, 54 N.J. 526, 538 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), as to inferences created by incriminating circumstances.
II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
Initially it is noted that none of the defendants made a motion for a new trial. Therefore a contention that the verdict was against the weight of the evidence is not cognizable on this appeal. R. 2:10-1; see State v. McNair, 60 N.J. 8, 9 (1972). In any event, the contention is totally without merit. As noted under Point I, the evidence adduced and reasonable inferences that could be drawn from that evidence were amply sufficient to warrant defendants' conviction. After the State rested (and Wade's counsel had summed up), defendant Latimore testified. Although he denied knowledge of the presence of the weapons in the automobile, he confirmed much of the officers' testimony and described how the parties came to be at the scene. His contention that he was directed to the scene by Williams who told him to go to his cousin's house, a man Latimore had never met, and ask him to come out at three o'clock in the morning and that he was confused in locating the house because he had been drinking was all of extremely questionable credibility. He acknowledged displaying his credentials to the officers and that he was driving the vehicle on that evening.
We are satisfied that there was sufficient evidence from which the jury could find defendants guilty of the charges against ...