On appeal from the Superior Court, Appellate Division.
The opinion of the Court was delivered by O'hern, J. Chief Justice Wilentz and Justices Pollock, Garibaldi, and Stein join in this opinion. Justices Handler and Coleman did not participate.
The opinion of the court was delivered by: O'hern
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE OF NEW JERSEY v. DONALD A. PETTIES (A-29-94)
Argued November 28, 1994 -- Decided March 20, 1995
O'HERN, J., writing for a unanimous Court.
On September 18, 1992, Donald Petties went to the home of Alton Pearson to confront Pearson about what Petties believed to be Pearson's affair with Petties' wife, Helen. Pearson was not at home but Petties told Cassandra Edwards, a visiting relative, that Pearson was involved intimately with his wife and that he wanted to "resolve the situation." Petties left Pearson's home, but returned later accompanied by his wife. They sat in the car in front of the home and waited for Alton Pearson to arrive home.
When Pearson arrived home, Petties got out of his car and confronted Pearson regarding the suspected affair between Pearson and Helen Petties. Catherine Pearson, Alton's mother, Cassandra Edwards, and Cassandra's young child were able to witness the confrontation at a very close distance. There was conflicting testimony from the witnesses in respect of what occurred during the confrontation. Catherine and Cassandra testified that Petties threatened Pearson; however, Pearson testified that he did not recall being threatened. The witnesses testified that Petties allegedly brandished a handgun and a rifle but there were differing perceptions in respect of who Petties pointed the weapons at or whether he pointed either weapon at anyone.
Petties was later stopped in his car by police and the vehicle was searched. The police found a loaded handgun with the safety on and an empty rifle with the safety off.
Petties was indicted and tried on five counts of aggravated assault (pointing a firearm at the two suspected lovers, the two adult relatives, and the child bystander), two counts of possession of a weapon for an unlawful purpose (one count for each of the weapons), and one count of unlawful possession of a weapon (the handgun) without a permit. In charging the aggravated-assault counts, the trial court instructed the jury on the lesser-included offenses of simple assault and harassment. The court gave a sequential charge, instructing the jury that it could not consider lesser-included offenses unless it first unanimously acquitted Petties of the five counts of aggravated assault.
The jury convicted Petties of the weapons-possession offenses but acquitted him of the aggravated-assault charges. The jury was unable to reach a verdict on the lesser-included offenses of simple assault against Catherine and Alton Pearson but did acquit Petties of all other lesser-included offenses.
Petties moved for judgments of acquittal notwithstanding the verdicts on the two counts of possession of a weapon for an unlawful purpose. The trial court granted the motion and ordered that those counts be dismissed. In doing so, it relied on State v. Jenkins, in which the court held that when a defendant is acquitted of aggravated assault with a weapon and no evidence other than the account of the alleged assault is adduced to prove a charge of possession of the weapon for an unlawful purpose, a jury cannot convict on the possession charge because it is left to speculate on the unlawful purpose.
The Appellate Division denied the State's motion for leave to appeal. The Supreme Court granted the State's motion for leave to appeal.
HELD: An acquittal of the commission of a crime with a gun does not establish that its prior possession had always been for a lawful purpose.
1. Conviction for a second-degree offense of possession of a weapon for an unlawful purpose does not require the state to obtain a conviction for underlying unlawful conduct. The unlawful purpose or state of mind, which may be inferred from the circumstances, must exist at whatever time the State contends the possessory offenses took place. (pp. 6-8)
2. As long as the jury could have found that possession for an unlawful purpose existed at or before the confrontation at Pearson's house, then the jury was entitled to return a verdict of guilty for the possession for an unlawful purpose offenses. The fact that the jury could not agree whether Petties had actually pointed either gun at his wife, Pearson, or the bystanders does not mean that he brought the guns to the scene for a lawful purpose. To conclude that every acquittal of the substantive charge involving the use of a gun requires a dismissal of the charge of possession for an unlawful purpose would be an overreading of Jenkins. Conversely, a conviction of the substantive charge does not establish that the possession was unlawful. In each case, it is the subjective intent of the actor during the entire period of possession that determines guilt. (pp. 8-11)
3. Inconsistent verdicts are normally permitted so long as the evidence was sufficient to establish guilt on the substantive offenses beyond a reasonable doubt. Confronted with conflicting testimony, the jury could rationally have acquitted Petties of pointing the guns or making other threats but yet conclude unanimously and beyond a reasonable doubt that Petties had returned to the Pearson home armed with the weapons for the unlawful purpose of threatening or intimidating Alton (aggravated assault) or placing his family members in fear (simple assault), and yet have relented on that purpose. Thus, these verdicts are not inconsistent. Moreover, circumstantial evidence can suffice to establish an unlawful purpose. Here, there is evidence that Petties called Pearson a "marked man and came to the scene "to resolve the situation; therefore, the jury could rationally conclude that Petties' purpose in bringing guns to Pearson's home was to intimidate Pearson unlawfully. (pp. 11-13)
4. The jury is not qualified to determine, without guidance, which purposes for possessing a gun are unlawful and which are not. Thus, a jury instruction on a charge of weapons possession for unlawful purpose must include an identification of such unlawful purposes that may be suggested by the evidence and an instruction that the jury may not convict based on their own notion of the unlawfulness. The charge in this case failed to meet that standard. The trial Judge should have explained to the jury that the criminal purpose or state of mind may exist at whatever time the State claims that the possessory offense took place and relate the specific unlawful purpose charged to the facts of the case. (pp. 13-15)
5. In the interest of judicial economy, the matter is remanded for retrial of the reinstated unlawful-purpose counts and the other counts of the indictment that were not resolved by the jury. (pp. 16)
The trial court's order setting aside the verdicts on the unlawful-purpose charges and dismissing those counts is VACATED and the matter is REMANDED to the Law Division for ...