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State v. Harmon

Decided: October 14, 1986.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 203 N.J. Super. 216 (1985).

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


A jury convicted defendant under N.J.S.A. 2C:39-4(a) of "possession of [a] firearm with a purpose to use it unlawfully" for drawing a BB gun during an argument with another young man and threatening its use. The offense is a second-degree crime, punishable by up to ten-years' imprisonment, that also triggers the mandatory-minimum-sentencing provisions of the Graves Act, N.J.S.A. 2C:43-6(c) to -6(d).

The narrow question presented is whether the jury was instructed properly on the meaning of "unlawful purpose," the state of mind required for the crime under N.J.S.A. 2C:39-4(a).

We conclude the instructions given failed to explain adequately that the mental element of "unlawful purpose" requires a specific finding that the accused possessed a weapon with the conscious objective, desire, or specific intent to use it to commit

an illegal act, that is, one proscribed by law, and not for some other purpose. In the particular context of this case, we hold that purposely pointing the BB gun did not, in and of itself, establish a "purpose to use it unlawfully" within the meaning of N.J.S.A. 2C:39-4.

Under the circumstances, the error had the clear capacity to mislead the jury concerning the existence of an essential element of the crime. We therefore reverse the judgment below affirming defendant's conviction and remand for a new trial.


The case stems from an argument that occurred in Union County's Echo Lake Park on June 13, 1983, between defendant Harmon, then 23-years old, and another young man, Mario Monticello, an employee of the park's boat-rental concession. Much of what actually occurred is undisputed and can be stated briefly.

The argument began over whether Harmon could "hang around" the boat-rental area. He lived only minutes away, had worked at the concession, and spent much of his time in the park. Monticello did not want Harmon around the boat-rental office and told him so. An initial argument ensued with an exchange of stock profanities and threats. Harmon went back to his car and took out a BB-gun and put it in his pants. He said at trial that he felt threatened by Monticello and wanted the pistol "in case he came after me."

Harmon returned to the area and sat down with several of his friends at the lakeside. Monticello did eventually come after him and here the stories differ but agree on the fact that before the argument turned into a fight, Harmon pulled the BB gun out of his pants and pointed it at Monticello. Monticello said that Harmon threatened to blow his head off. Harmon said he just told Monticello to stand back. Whatever happened, that ended it. Monticello called the police. Harmon left the park. He was arrested four days later. He admitted the

essentials of the episode, told the police that he had thrown the BB gun away in the park but denied any intent to harm Monticello, saying that he had pulled the weapon out only when he became frightened after Monticello took off his rings and started at him.

The State does not dispute that the weapon, though never recovered, was a small calibre, air-powered BB gun, unloaded, and of questionable operability. Nor is there any dispute that the entire episode ever went much beyond the exchange of harsh words and display of the weapon; no punches were thrown, no shots fired, neither man was physically injured.

Harmon was indicted on three counts: possession of a handgun without a permit, a third-degree offense under N.J.S.A. 2C:39-5(b); aggravated assault under N.J.S.A. 2C:12-1(b)(4), which prohibits the pointing of a firearm at another person "[k]nowingly under circumstances manifesting extreme indifference to the value of human life," a fourth-degree offense; and under N.J.S.A. 2C:39-4(a) for possession of a firearm for an unlawful purpose, the most serious of the three charges and the one that forms the basis of this appeal. The jury acquitted Harmon of aggravated assault, but convicted him on the two weapons counts. He was sentenced on the possession-for-unlawful-purposes count to a term of five-years' imprisonment, the first three years without opportunity for parole. A concurrent term of three years was imposed on the unlawful-possession count under N.J.S.A. 2C:39-5(b).*fn1

As noted, at trial, the parties offered conflicting testimony pertaining to Harmon's purpose in possessing the BB gun. The defendant claimed he was afraid of Monticello and his only intention in carrying the pistol was to protect himself from physical assault. The State, by contrast, painted Harmon as the belligerent party, and attempted to prove that he baited Monticello in a calculated effort to draw him out for the purpose of assaulting or harassing him with the pistol. The details of the conflicting accounts are sufficiently set forth in the opinion of the Appellate Division, State v. Harmon, 203 N.J. Super. 216, 219-21 (1985), and need not be repeated at length here. There was ample evidence to make either story plausible -- the State's version, in which Harmon's purpose, at least at some point, was to commit an assault, or the defendant's, in which his intentions in arming himself were purely precautionary.

The critical juncture, for our purposes, came after the evidence was in and the jury had retired to deliberate. With respect to the charge under N.J.S.A. 2C:39-4(a), the court had instructed the jury initially that the State had to prove beyond a reasonable doubt that Harmon possessed the firearm with, as the statute mandates, the purpose to use it unlawfully -- that is, "without legal cause or excuse" -- against Monticello. The jury, however, apparently had some difficulty understanding the distinction between the purpose to commit an unlawful act and the purpose to point the gun. Twenty-five minutes into their deliberations, the jurors seemingly reached an impasse on exactly that crucial question. A note was sent to the court's chambers requesting clarification. It read:

We need clarification on [count] two. Some Jurors are questioning [his] purpose. Please restate three elements of charge. Does pointing a gun constitute an unlawful act [?]

The judge's response, given in open court, was as follows:

First of all, three elements are is what he pointed a firearm. That was the first element. The second element is did he possess the firearm and third element which appears from the question is the one that is troubling you is did the [d]efendant possess the firearm with the purpose to use it unlawfully

against the person of another. Does pointing the gun constitute an unlawful act and the answer to that question is yes, providing you listen to the rest of the charge. Provided he did it with purpose, you have to find that it was done with the purpose to do it unlawfully. So I think that is within the realm that you have to make your determination. All right. You may reconsider.

Defense counsel, informed in advance of what the court would reply, made no objection to the wording of the supplemental instruction. For the first time on appeal, the defendant, represented by new counsel, argued that the effect of the supplemental instruction was to confuse the jury on the existence of the mental state required for the crime, contending that the trial court plainly erred in not charging that self-defense would justify the possession of the weapon for what would or could have been an otherwise unlawful purpose. The issue had to be resolved then as one of plain error.

The Appellate Division affirmed the conviction, ruling that "a person may not arm himself in anticipation of a possible future need to use the weapon in self-defense," and that "[b]randishing a weapon * * * is not possession for purposes of self-protection where the circumstances do not vindicate the action taken." 203 N.J. Super. at 224. We granted the defendant's petition for certification. 102 N.J. 361 (1985).


Determining whether the jury was potentially misled by the instructions pertaining to "unlawful purpose" turns, in the first instance, on the precise conduct intended to be prohibited by N.J.S.A. 2C:39-4. Harmon maintains that his only "purpose" in arming himself with the BB gun was precautionary; he never intended to commit an illegal act. Defendant contends further that the absence of the requisite evil purpose was demonstrated by the jury's statement, "some Jurors are questioning his purpose," and that the trial court's attempt to clarify the issue only confused the jury further.

The State, by contrast, argues that Harmon should not be allowed to attempt to negate the mental element of unlawful

purpose by claiming self defense. The contention rests on the premise that any anticipatory arming -- even for self protection -- is inimical to the general societal interest in curtailing the possession of firearms. The State, in short, argues on public policy grounds that arming oneself anticipatorily for the purpose of self protection is, as a matter of law, an "unlawful purpose." Putting the question the way the State does poses a legal riddle and distracts us from the real issue. After all, we ask ourselves, how can one have a lawful purpose when the act of possession without a permit is in itself unlawful? But the real issue is not whether the possession was unlawful; the question is whether the purpose of the possession was unlawful. To understand better the real issue, we must look closely at the provisions of our criminal code.*fn2


N.J.S.A. 2C:39-4(a) provides that "[a]ny person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." The statute is one of a number of provisions in Chapter 39 of the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to :98-4, that regulate or prohibit the possession, use, manufacture, and sale of a variety of weapons. Those provisions vary considerably with respect to the type of weapon involved, the nature of the act prohibited, the intent of the possessor, and the penalties imposed for violations. We have previously referred to the provisions of Chapter 39 as a "carefully constructed," State v. Lee, 96 N.J. 156, 160 (1984), and "comprehensive regulatory program," State v. Ingram, 98 N.J. 489, 499 (1985), in which each provision must be construed in

light of the others, lest the sections become superfluous. State v. Lee, supra, 96 N.J. at 162-63.

Broadly speaking, the framework for regulating the possession of firearms and other weapons is contained in three sections of Chapter 39: N.J.S.A. 2C:39-3, -4, and -5. The three titles to the sections of the chapter highlight the differences: 39-3, Prohibited Weapons and Devices; 39-4, Possession of Weapons for Unlawful Purposes; and 39-5, Unlawful Possession of Weapons. Sections 39-3 and 39-5 are similar in that both are essentially regulatory offenses: they prohibit possession of firearms and other weapons without regard to the individual's intent or purpose in possessing them. The only "intent" required is the general intent to possess the weapon: in the language of the Code, "knowledge" that such circumstances exist. See N.J.S.A. 2C:2-2(b)(2) (defining mental state of "knowingly").

The primary distinction between the two regulatory offenses is that N.J.S.A. 2C:39-3 prohibits entirely the possession of certain inherently dangerous devices -- sawed-off shotguns, silencers, and armor-piercing bullets, for example -- whereas N.J.S.A. 2C:39-5 prohibits the possession of a narrower class of firearms -- machine guns, handguns, rifles, and shotguns -- but allows such possession to be sanctioned by permit, license, or other official authorization under Chapter 58 of the Code. Compare N.J.S.A. 2C:39-3(b) ("[a]ny person who knowingly has in his possession any sawed-off shotgun is guilty of a crime of the third degree") with N.J.S.A. 2C:39-5(a) ("[a]ny person who knowingly ...

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