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State v. Brims

June 19, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWARD BRIMS, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Coleman, J.

Argued November 28, 2000

On certification to the Superior Court, Appellate Division.

The primary issues raised in this appeal, which involves a conviction for second-degree possession of a firearm for an unlawful purpose, are whether the jury was properly instructed on, and whether the State sustained its burden of proving, defendant's specific unlawful purpose for possessing a weapon. The trial court and the Appellate Division concluded that there was no plain error. We agree and affirm.

I.

In his first trial, defendant was convicted of possession of a firearm without a firearms identification card in violation of N.J.S.A. 2C:39-5c(1); possession of a semi-automatic loaded rifle in violation of N.J.S.A. 2C:39-5c(2); possession of cocaine in violation of N.J.S.A. 2C:35-10a(1); possession of a firearm by a previously convicted felon in violation of N.J.S.A. 2C:39-7b; and possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4a. The Appellate Division affirmed all of the convictions with the exception of possession of the firearm for an unlawful purpose. That conviction was reversed because the trial court had not instructed the jury on the alleged specific unlawful purpose. In his second trial, defendant was again convicted of possessing a weapon for an unlawful purpose and the Appellate Division affirmed. This appeal focuses only on that conviction.

On Friday, September 25, 1992, at approximately 8:15 p.m., two men were observed in a municipal parking lot in Leonia, New Jersey, leaning into a car, with all four doors open, but with the interior car light off. A local jewelry store owner contacted the police to report that there was "suspicious activity going on in the municipal lot." At the time the two men were observed, several business, including a liquor store, a pharmacy, and a supermarket, were open in the area adjoining the parking lot. There were also other cars parked in the lot. The parking lot was located near a residential area.

When the police arrived, they asked the two men what they were doing, and the men explained that they were cleaning out the car. The officers noted that there were no trash receptacles in the immediate area. The two men, who were later identified as defendant Edward Brims and co-defendant Ernest Brownlee, were directed to place their hands on one of the police cars while an officer looked into the back seat of their car. The officer observed a pair of black gloves, several pairs of women's stockings, a black hair net, and several empty bags and soda bottles in the back seat. In addition, the officer saw the stock of a weapon protruding from under the driver's seat. The firearm was a .22 Marlin rifle with a sawed-off stock. There were nine rounds of ammunition in the rifle, including one round in the chamber.

At the time of his arrest, defendant was wearing a warm-up suit with two T-shirts underneath. Defendant was also wearing white sweat socks with black nylon-type socks over them. Brownlee had white gloves and one pair of nylons in his back pocket. One of the nylons found on the back seat of the car was stretched out and had a hole in it. At trial, one of the responding police officers testified that his experience has shown that people who commit crimes use gloves to disguise their hands and to prevent fingerprints, and place nylons over their heads to distort their faces. That officer also testified that people saw off the stocks of guns to make them easier to conceal under clothing.

During the retrial, the State argued that defendant's specific unlawful purpose for possessing the gun was to commit a robbery. The trial court decided that it would instruct the jury to consider burglary as an additional unlawful purpose. At the end of the State's case, defendant made a motion to dismiss, arguing that based on the evidence presented, the jury would be required to speculate about what defendant's unlawful purpose was. The trial court denied the motion.

The trial court instructed the jury that defendant's alleged unlawful purpose was to commit a burglary or robbery with the gun. There was no objection to that jury instruction. Defendant again was convicted of possession of a weapon for an unlawful purpose. Defendant's motion for a judgment of acquittal notwithstanding the jury verdict was denied. He was sentenced to an extended term of fifteen years with a five-year term of parole ineligibility.

The Appellate Division affirmed defendant's conviction in an unpublished opinion. The Appellate Division concluded that the evidence was sufficient to support an inference of an unlawful purpose. The Appellate Division also determined that, although it would have been appropriate for the trial court to have informed the jury that the defense was that defendant was cleaning out the car, the failure to do so did not amount to plain error. We granted defendant's petition for certification, 164 N.J. 557 (2000), and now affirm.

II.

Defendant argues that the State failed to meet its burden of proving the specific unlawful purpose for which he possessed the rifle. He contends that the State's failure to sustain its burden of proof was compounded by the trial court's failure to inform the jury in its charge that defendant's asserted purpose for being in the parking lot was to clean out the car. The State counters that the jury instructions were clear and adequate, and that it met its burden of establishing under the totality of the circumstances that the unlawful purpose was to use the rifle to commit a robbery or burglary.

The statute under which defendant was convicted provides: "Any 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." N.J.S.A. 2C:39-4a. A conviction for possession of a gun for an unlawful purpose requires proof of four elements:

(1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1c; (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful. [State v. Diaz, 144 N.J. 628, 635 (1996).]

The unlawful possession of a weapon under N.J.S.A. 2C:39-4a is "an inchoate offense in the sense that it seeks to prevent incipient crime by prohibiting the commission of some act, however equivocal[,]. . . when such conduct is accompanied by criminal intent." State v. Harmon, 104 N.J. 189, 203-04 (1986) (analogizing to State v. Zito, 54 N.J. 206, 215 (1969), which explained that "presence in State for ?an unlawful purpose' is a status crime that ?seeks to head off the commission of crime . . . not yet pressed to the stage of an ?attempt'"). An attempt to commit a robbery or a burglary is cognizable under the New Jersey Code of Criminal Justice. N.J.S.A. 2C:5-1; N.J.S.A. 2C:15-1; N.J.S.A. 2C:18-2; State v. Farrad, 164 N.J. 247, 251 (2000); State v. Jenkins, 299 N.J. Super. 61, 63 (App. Div. 1997). The legislative objective of N.J.S.A. 2C:39-4a, however, is to punish someone for possessing a firearm for an unlawful purpose before the conduct escalates to the stage of an attempt. Accordingly, the focus is on a defendant's purpose for possessing a weapon, not the possession itself or the actual use, and "a conviction based on the use of the weapon is not a required precondition to a conviction for the possessory offense." Diaz, supra, 144 N.J. at 635-36.

Proof of the fourth element of the offense, namely that defendant intended to use the firearm in a manner that was unlawful, requires "an identification of the unlawful purpose or purposes suggested by the evidence." State v. Villar, 150 N.J. 503, 511 (1997). Here, robbery and burglary were identified as the unlawful purposes. The mental state required for possession of a firearm with a purpose to use it against the person or property of another for an identified unlawful purpose is satisfied "if it is his [or her] conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he [or she] . . . believes or hopes that they exist." N.J.S.A. 2C:2-2b(1). The "purpose to use a weapon unlawfully may be inferred from the [facts and] circumstances" presented at trial. Villar, supra, 150 N.J. at 510.

In this case, the State presented ample evidence from which the jury could have inferred defendant's unlawful purpose for possessing the rifle. Defendant was found rummaging through a rental car in a parking lot near several stores and residences under highly suspicious circumstances. In the backseat of the car, where defendant was leaning, the police found gloves, stockings, and a hair net. Under the front seat was a fully loaded sawed-off rifle with a bullet in the chamber. Defendant was wearing two layers of clothing in September, including a pair of black nylon socks over his white athletic socks, and co- defendant Brownlee had gloves and knee-high stockings in his pocket. There was testimony that the stocking with the hole in it could be used to conceal one's facial features and that the white gloves could be used to avoid leaving fingerprints. The fact that the rifle was sawed off made it easier to conceal beneath clothing. There were businesses still open and customers of those establishments used the parking lot. All that evidence taken together satisfied the requirements of State v. Reyes, 50 N.J. 454, 458-59 (1967), for submission of the case to the jury.

Although defendant asserted that his purpose for being in the parking lot was to clean out his rented car, the jury was free to infer that his purpose in possessing the firearm, under those facts and circumstances, was to use it in connection with a robbery or burglary, both of which are unlawful purposes. Indeed, defendant never asserted that he possessed the sawed-off rifle for a lawful purpose. His defense was that he was cleaning out the rented car, which is not inconsistent with possessing the firearm to commit a robbery or burglary in the parking lot or nearby. Finally, the jury was also informed that there were no nearby receptacles for depositing the waste that defendant was allegedly cleaning from the vehicle.

In contrast to the dissent's suggestion, the State was only required to prove that defendant's unlawful purpose was to commit a robbery or a burglary; the State was not obligated to prove the exact details of the intended crime, such as when it would occur or the identity of the person or property targeted. See State v. Petties, 139 N.J. 310, 316 (1995). The State met its burden in this case. Moreover, the jury's verdict was based on sufficient credible evidence and does not represent a miscarriage of justice under Rule 2:10-1.

III.

Next, we focus on the jury charge. Defendant argues that the trial court's jury instructions on possession of a weapon for an unlawful purpose allowed the jury to speculate about his alleged unlawful purpose for possessing the rifle and failed to inform the jury that his alleged purpose for being in the parking lot was to clean out the rented car. Because defendant did not object to the jury instructions at trial, his conviction may be reversed only if there was plain error——an error that was "clearly capable of producing an unjust result," R. 2:10-2, such that a reasonable doubt is raised "as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

The jury was instructed as follows:

The mental element of purpose to use a firearm unlawfully requires that you find the defendant[] possessed a firearm with the conscious object, design, with a specific intent to use it against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose. In this case, the State contends that the defendant['s] unlawful purpose in possessing the firearm was burglary or robbery. You must not consider your own notions of the unlawfulness of some other undescribed purpose of the defendant[], but rather you must consider whether the State has proven the specific unlawful purpose charged. The State need not prove which specific completed crime the defendant[] intended to commit using the firearm. The unlawful purpose alleged by the State may be inferred from all that was said or done and from all of the surrounding circumstances of this case.

We are convinced that the charge satisfies the requirement that the jury "?may not convict [under N.J.S.A. 2C:39-4a] based on their own notion of the unlawfulness of some other undescribed purpose.'" Villar, supra, 150 N.J. at 511 (quoting State v. Jenkins, 234 N.J. Super. 311, 316 (1989)). The jury charge both provided the jury with the alleged specific unlawful purposes it was permitted to consider——burglary and robbery——and stated that the jury was prohibited from convicting defendant based on any other unlawful purpose. Hence, the jury instruction, when considered as a whole, "guide[d] the jury in its determination of the unlawful purposes alleged." Petties, supra, 139 N.J. at 319. We find no basis on which to conclude that the charge was capable of misleading the jury. Nor did the trial judge commit plain error by failing to comment in the charge on defendant's assertion that he was present in the parking lot to clean out the rental car. That defense does not suggest that the gun was possessed for a lawful purpose. Similarly, defendant's asserted purpose for his presence in the parking lot does not negate the mental state required for the offense. In other words, presence in the parking lot to clean out the rented car does not negate the State's contention that his presence was for the purpose of committing a robbery or burglary.

Trial courts have broad discretion when commenting on the evidence during jury instruction. State v. Robinson, 165 N.J. 32, 45 (2000). Although the trial court could reasonably have exercised that discretion in favor of including defendant's assertion that he was cleaning out the rented car, the failure to do so does not rise to the level of plain error. Defendant's counsel approved the charge at a pre-charge conference. More importantly, we are entirely satisfied that the jury understood that defendant's theory of the case was that he and Brownlee were merely cleaning garbage out of the rental car, garbage that included gloves, stockings, and a hairnet, as well as empty bags and soda bottles, and that they allegedly had no plan or purpose to use the gun in any unlawful manner. The charge when viewed as a whole made it clear that if defendant's presence in the parking lot was only to clean out the rental car, and not to commit a robbery or burglary, the jury's obligation was to return a verdict of not guilty. Failure to include the defense theory in the jury charge does not raise a reasonable doubt that the jury would have reached a different result had the court included defendant's theory in its charge. See Macon, supra, 57 N.J. at 336. IV.

We affirm the judgment of the Appellate Division.

CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA and ZAZZALI join in JUSTICE COLEMAN's opinion. JUSTICE STEIN filed a separate dissenting opinion.

STEIN, J., dissenting.

In this appeal defendant challenges only the validity of his conviction, at a retrial, of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-21. Defendant does not contest his other convictions at his first trial for possession of a firearm without a firearm's identification card (N.J.S.A. 2C:39-5(c)), possession of a semi- automatic rifle (N.J.S.A. 2C:30-5(c)(2)), possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)), and possession of a weapon by a convicted felon (N.J.S.A. 2C:37- 7(b)). At his original trial, at which defendant also was convicted of possession of a weapon for an unlawful purpose, the trial court omitted to instruct the jury concerning the unlawful purpose asserted by the State, although the prosecutor argued that defendant's purpose was to commit an aggravated assault or robbery. That conviction was reversed by the Appellate Division in an unpublished opinion because of the trial court's failure to "guide the jury in its determination of the unlawful purposes alleged." State v. Petties, 139 N.J. 310, 319 (1995). At the retrial the State changed its position and asserted that defendant's unlawful purpose was to commit a robbery or burglary, the trial court so instructed the jury, and the Appellate Division affirmed the conviction in an unpublished opinion.

I would reverse that conviction. Unlike the vast majority of convictions for violation of N.J.S.A. 2C:39-4, in which defendants also plead guilty to or are convicted of an underlying offense that serves as the predicate for the possession of an unlawful purpose conviction, defendant's predicate criminal purpose was a matter of rank speculation, so much so that the State changed its theory concerning defendant's criminal purpose between the first trial and the retrial. No reported decision has sustained a conviction under N.J.S.A. 2C:39-4 on proofs as weak as these. In my view, defendant's prosecution for that offense was the result of unnecessary prosecutorial overcharging, particularly since defendant's possession of the weapon in question, as well as his possession of CDS, resulted in several other sustainable convictions that would have resulted ...


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