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State v. Villar

July 17, 1997

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JUAN CARLOS VILLAR, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 292 N.J. Super. 320 (1996).

The opinion of the Court was delivered by O'hern, J. Chief Justice. Poritz and Justices Pollock, Garibaldi, Stein and Coleman join in Justice O'hern's opinion. Justice Handler 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. Juan Carlos Villar, 150 N.J. 503, 696 A.2d 674

O'HERN, J., writing for a unanimous Court.

On New Year's Eve, 1992, Juan Carlos Villar was at TGI Friday's in Iselin. While in an intoxicated state, Villar struck Nancy Gollar in the face with a beer stein. The blow split open Gollar's lip down to the muscle and broke a tooth. Gollar needed seven stitches to close the wound and was left with a permanent scar. She also had to have root canal and repair work done on the chipped tooth. Gollar had intense pain in her mouth for weeks after the incident. Two years later, she still had throbbing in her gums. She may need additional root canal in the future.

Villar claims that he only intended to splash a beer in Gollar's face and might have struck her accidentally. Gollar claims that Villar was unprovoked when he hit her with full force in the face with the beer stein.

Villar was indicted by a grand jury for second-degree aggravated assault, third-degree aggravated assault, and third-degree possession of a weapon (the beer stein) for an unlawful purpose. A beer stein meets the statutory definition of a weapon as an object readily capable of "inflicting serious bodily injury." Villar was denied admission to Pretrial Intervention (PTI).

The jury found Villar guilty of second-degree aggravated assault and third-degree possession of a weapon for an unlawful purpose. Villar was found not guilty of third-degree aggravated assault because the jury concluded that he did not knowingly or purposely cause bodily injury with a deadly weapon. Instead, the jury found Villar guilty of simple assault, a disorderly persons offense that was charged as a lesser-included offense of the third-degree aggravated assault charge. On the second-degree aggravated assault charge, involving serious bodily injury, the jury found that Villar had been recklessly indifferent to the value of human life but did not find that Villar had acted purposely or knowingly. The trial court merged the simple assault conviction with the second-degree aggravated assault conviction and sentenced Villar to five years of imprisonment. Villar was sentenced to a concurrent three years of imprisonment for the weapons possession conviction.

On appeal, the Appellate Division vacated the convictions for second-degree aggravated assault and possession of a weapon for an unlawful purpose. The court affirmed the simple assault conviction and remanded for resentencing. The court reasoned that but for the erroneous jury instructions on assault, the jury would have returned a verdict of guilty solely on the lesser-included offense of simple assault with a deadly weapon. The court believed that it was in the interest of Justice not to retry the first count of second-degree aggravated assault and that judgment should be entered solely on the negligent simple assault with a deadly weapon.

The Supreme Court granted the State's petition for certification and granted leave to the Attorney General to appear as amicus curiae. The issues before the Court are: 1) whether Villar can be convicted, under N.J.S.A. 2C:39-4d, for possession of a weapon (the beer stein) for an unlawful purpose of striking Nancy Gollar; and 2) whether, following a reversal for incorrect jury instructions, there may be a retrial of a charge of second-degree aggravated assault.

HELD:

Juan Carlos Villar can be convicted under N.J.S.A. 2C:39-4d, possession of a weapon (a beer stein) for the unlawful purpose of striking another patron at a bar. In addition, following a reversal for incorrect jury instructions, Villar may be retried on the charge of second-degree aggravated assault.

1. In order to sustain a conviction under N.J.S.A. 2C:39-4d, the State must prove beyond a reasonable doubt that: 1) the item possessed was a weapon as statutorily defined; 2) the defendant possessed the weapon with knowledge or awareness of control over the weapon; 3) the defendant's purpose or conscious objective was to use the weapon against the person or property of another; and 4) the defendant intended to use the weapon in an unlawful manner. The purpose to use the weapon unlawfully may be inferred from the circumstances. (pp. 5-6)

2. A jury instruction on a charge of possession of a weapon for an unlawful purpose must include an identification of the unlawful purpose or purposes suggested by the evidence and an instruction that the jury may not convict based on their own notion of the unlawfulness of some other undescribed purpose. In addition, the Judge should explain to the jury that the criminal purpose or state of mind may exist at whatever time the State claims the possessory offense took place, and relate the specific unlawful purpose charge to the facts of the case. (pp. 6-7)

3. In State v. Harmon, the Court did not hold that the State is required to prove that the original purpose for possessing a weapon was unlawful. The Appellate Division over read Harmon when it concluded that a person cannot be convicted of possession of a weapon for an unlawful purpose if the original purpose for possessing the object was lawful. Villar's original purpose for possessing the beer stein was lawful. Villar may claim that his purpose was always lawful, but he may not escape responsibility if his purpose became unlawful. (pp. 7-10)

4. It is for the jury to decide whether Villar consciously possessed the weapon for the purpose of inflicting injury on another. Initially the beer stein was possessed by Villar for the lawful purpose of drinking and was otherwise an innocuous everyday object. When Villar struck Gollar in the face; however, the jury could infer that his purpose was to commit an unlawful act with the stein. A jury could find that the State established all four elements of possession of a weapon for an unlawful purpose under the Harmon test. (pp. 10-11)

5. The evidence supports a conviction other than of negligent simple assault with a deadly weapon. The differing accounts of the incident can sustain a verdict of aggravated assault. Based on the testimony of Gollar and her companion, a properly charged jury could find that Villar knowingly, purposely or recklessly acted under circumstances manifesting extreme indifference to the value of human life. A properly charged jury could also have found that Gollar's injuries constituted serious bodily injury. Because of the constitutional prohibition against double jeopardy, Villar cannot be recharged with or convicted of third-degree aggravated assault. However, at his request, that offense can be charged to the jury as a lesser-included offense of second-degree aggravated assault. (pp. 11-17)

6. The verdicts reflect an attempt by the jury to sort out the charges rather than a fatal inconsistency. The jury's verdicts are not inconsistent because the elements of each of the charges differ. None of the jury findings on the charges negates an essential element of any other charge. (pp. 17-18)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for retrial of the second-degree aggravated assault count. Consistent with this opinion and at Villar's request, the trial court shall charge third-degree aggravated assault, fourth degree aggravated assault, and negligent simple assault as lesser-included offenses of second-degree aggravated assault. The conviction on third-degree possession of a weapon for an unlawful purpose is REINSTATED.

CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN'S opinion. JUSTICE HANDLER did not participate.

The opinion of the Court was delivered by

O'HERN, J.

From the evidence, a jury could have found that defendant struck a woman in the face with a beer stein, causing her serious bodily injury. A beer stein meets the statutory definition of a weapon as an object readily capable of "inflicting serious bodily injury." N.J.S.A. 2C:39-1r. The principal issues are (1) whether defendant can be convicted under N.J.S.A. 2C:39-4d, possession of a weapon (the beer stein) for the unlawful purpose of striking the woman; and (2) whether, following a reversal for incorrect jury instructions, there may be a retrial of a charge of second-degree aggravated assault.

I

The jury heard the following evidence. On New Year's Eve, 1992, defendant, Juan Carlos Villar, was at TGI Friday's in Iselin. He was at the bar when Nancy Gollar and a friend arrived and sat next to him. Defendant had been drinking vodka before arriving at Friday's. He admits that he was drunk when the incident occurred and asserted a defense of intoxication to any charge of an intent to harm the victim.

Sometime after midnight, Villar decided to leave. He became irritated while waiting for his check. The bartender further irritated him when she removed his ashtray as he waited. With no ashtray, defendant threw a lit cigarette over the bar. According to defendant, Gollar slid another ashtray towards defendant saying, "Here, try this, you jerk." Defendant says that he intended only to splash his drink in her face, but might have struck her with the stein accidentally. Gollar claims that she intended no affront in sliding the ashtray over and was minding her own business when defendant, with his beer stein in hand, punched her in the face with a "very hard, very forceful" impact. (The object has also been referred to as a "goblet.") After the incident, defendant ran out of the bar, but was detained by a group of people outside the bar.

There was evidence that the blow split open Gollar's lip down to the muscle, broke a tooth, and left her covered with blood. The injury required seven stitches in Ms. Gollar's upper lip, root canal work, and repair work on a chipped tooth. She had "intense pain" in her mouth for weeks after the incident. Two years later, she still had throbbing in her gums. She may need more root canal work in the future. A scar on her upper lip is permanent.

A grand jury indicted defendant for second-degree aggravated assault, third-degree aggravated assault, *fn1 and third-degree possession of a weapon for an unlawful purpose. Defendant was denied admission to Pretrial Intervention (PTI).

The jury found defendant guilty of second-degree aggravated assault and third-degree possession of a weapon (the beer stein) for an unlawful purpose. The jury found defendant not guilty of third-degree aggravated assault. Instead, the jury found defendant guilty of simple assault, a disorderly persons offense that was charged as the lesser-included offense of the third-degree aggravated assault charge. *fn2 On the second-degree aggravated assault charge, involving bodily injury, the jury found that defendant had been recklessly indifferent to the value of human life but did not find that defendant acted purposely or knowingly. (The jury's verdict sheet is attached as Appendix A.) The trial court merged the simple assault conviction with the second-degree aggravated assault conviction and sentenced defendant to five years of imprisonment. The trial court sentenced defendant to a concurrent three years of imprisonment for possession of a weapon for an unlawful purpose.

The Appellate Division vacated the convictions for second-degree aggravated assault and possession of a weapon for an unlawful purpose. It left standing the simple assault conviction and remanded that for resentencing. We granted the State's petition for certification. 146 N.J. 570 (1997). We also granted leave to the Attorney General to appear as amicus curiae.

II

A ...


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