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State v. Banko

December 1, 2004

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MICHAEL W. BANKO, A/K/A MICHAEL MC CABE, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 364 N.J. Super. 210 (2003).

SYLLABUS BY THE COURT

(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).

The issue in this appeal is whether the jury's failure to convict on attempted aggravated sexual assault, or for that matter to have convicted defendant on any of the other charges, was impermissibly inconsistent with the charge on which it convicted, possession of a weapon for an unlawful purpose, rendering the latter without sufficient evidence in the record.

On April 30, 1999, Carmen Miles and her co-worker, Heather Hernandez, went to a bar in Manhattan where they encountered defendant and Raymond Surgey. They had a few drinks together and then went to a restaurant and bar/dance club, where they danced and had more drinks. Apparently, everyone was having a good time. It got quite late and Miles explained that she needed to get home before 1 p.m.. It was agreed that Raymond's car and driver would transport defendant and Miles to defendant's apartment address and that defendant would then call another car to take Miles home from there. While at defendant's apartment, defendant went to the bedroom and returned with a BB gun, telling Miles that they were going to have sexual relations, that she would enjoy it, and that they would then have breakfast. Miles claimed that defendant was agitated and that he pointed the gun at her. She also described how she tried to calm defendant down. When defendant expressed a desire to play strip poker and went into the kitchen to get a deck of cards, Miles fled the apartment.

Defendant was arrested days later and charged with first-degree attempted aggravated sexual assault, first-degree kidnapping, fourth-degree aggravated assault by pointing a firearm, and second-degree possession of a weapon for an unlawful purpose. Defendant's basic defense was that Miles essentially consented to an intimate evening and that he only brought out the BB gun to be cool and offered it to Miles because she was afraid of her boyfriend and of getting "heat" for getting home so late. Defendant admitted pointing the gun at the television and later cocking it a few times. Defendant also stated that the subject of firearms had come up in conversation earlier that night in the bars and that Miles had indicated that her boyfriend, with whom she was having problems, owned one.

During the jury's deliberations, it sent to the court several notes with questions on a variety of topics. One question, relating to the unlawful purpose charge, conveyed the jury's understanding that defendant must be found guilty of either aggravated sexual assault or kidnapping if he was to be found guilty on the charge of possession of a weapon for an unlawful purpose. The court instructed the jury that it was obligated to consider each offense separately and to render a verdict on each count. The foreman indicated to the court that he did not find the court's instruction responsive to the jury's inquiry. The court again instructed that the jury must render a verdict as to each count individually and asked if that instruction was helpful, to which the foreman responded "somewhat." Again the court reiterated its instruction. After resolution of a juror disqualification issue, the jury returned, explaining that it had reached a verdict as to two of the charges, but that it could not reach a verdict on the other two. The court repeated a portion of its original charge and approximately an hour later the jury returned with a verdict of guilty on the possession of a weapon for an unlawful purpose charge, but acquitted defendant of kidnapping, attempted aggravated sexual assault, and aggravated assault (pointing a firearm).

Defendant moved for a new trial pursuant to R. 3:20-1. The court granted the motion, finding that the verdict was against the weight of the evidence and that the unlawful purpose conviction was "legally incongruous" with the verdicts on the other counts. The State moved for leave to appeal the grant of a new trial, which the Appellate Division denied. The State then moved before this Court for leave to appeal and for summary reversal. We granted leave to appeal and directed the Appellate Division to hear the merits of the State's appeal. The Appellate Division then determined that the jury's verdict of guilt on the unlawful purpose charge was inconsistent with its acquittal of defendant on the substantive offenses charged, and held that the acquittals demonstrated the lack of a sufficient evidential basis in the record for the unlawful purpose element of defendant's weapons conviction. The Appellate Division ruled, however, that defendant was entitled to a judgment of acquittal, not a grant of a new trial. R. 3:18-2.

The Supreme Court granted the State's petition for certification.

HELD: A jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted. Here, there exists adequate evidence to support the jury's verdict of guilt on the unlawful possession charge. Therefore, defendant's conviction must be reinstated.

1. Inconsistent verdicts are accepted in our criminal justice system. We permit inconsistent verdicts to be returned by a jury because it is beyond our power to prevent them. We do not speculate why a jury acquits. We accept inconsistent verdicts - and not only when the jury's action benefits a defendant. Such verdicts are permitted "normally... 'so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" State v. Petties, 139 N.J. 310, 319 (1995). That said, the return of an "inconsistent verdict" may not insulate a conviction from reversal based on other defects in the criminal proceeding. Inconsistent verdicts - just like consistent verdicts - may be vulnerable, however, when an incomplete or misleading jury instruction causes an unfair trial. (Pp. 13-18)

2. In this matter, that defendant was acquitted of the substantive charge of attempted aggravated sexual assault is not fatal to the conviction for possession of a weapon for an unlawful purpose. The superficial inconsistency between the two charges does not void the legitimacy of the jury's conviction. We find sufficient support in the record for that conviction. Defendant was convicted of possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C: 39-4a. There are four elements to that offense: (1) the object possessed was a firearm; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) defendant intended to use it in a manner that was unlawful. Defendant does not deny he produced a BB gun, establishing the first and second elements. As to the remaining elements, a jury could believe that defendant had the unlawful purpose that was charged here based on the victim's testimony. If the jury believed her testimony, the third and fourth elements are satisfied and, so, the conviction rests on a sufficient evidential base. Even though the jury may have accepted some of Mile's testimony about defendant's expressed intention to have sexual relations with her while he possessed his BB gun in her presence, the jury may have not believed entirely her version about how the evening unfolded. Alternatively, it may have rendered a compromise verdict. The verdict is explainable also on the basis of lenity. Regardless of which of the ways noted, we conclude that the record contains sufficient evidence from the witnesses, even if their stories were not accepted in full, to support the unlawful purpose charge on which defendant was found guilty. (Pp. 18-21)

The judgment of the Appellate Division is REVERSED, the conviction is reinstated, and the matter is REMANDED to the Law Division for consideration of unresolved issues from defendant's motion for a new trial.

JUSTICE WALLACE filed a separate, concurring opinion, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join, expressing concern over the trial court's failure to fully respond to the jury's question concerning the unlawful possession count and suggesting appropriate jury instructions, with the caveat that courts should not inferentially or otherwise lead juries into believing that they properly could reach inconsistent verdicts.

JUSTICES ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion. JUSTICE WALLACE filed a separate concurring opinion in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 13, 2004

In the matter before us, defendant was acquitted of kidnapping, attempted aggravated sexual assault, and aggravated assault (pointing a firearm), and convicted of second-degree possession of a weapon for an unlawful purpose. The trial court vacated the weapons possession conviction and ordered a new trial based on a perceived inconsistency in the jury verdicts. The Appellate Division also held that the verdicts were inconsistent, but concluded that defendant was entitled to entry of a judgment of acquittal, not a grant of a new trial. R. 3:18-2.

We granted the State's petition for certification, State v. Banko, 179 N.J. 304 (2004), and now reverse. We reaffirm that a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted. Here, there exists adequate evidence to support the jury's verdict of guilt on the unlawful possession charge. Therefore, defendant's conviction must be reinstated.

I.

Defendant, Michael Banko, was charged with first-degree attempted aggravated sexual assault contrary to N.J.S.A. 2C:5-1, 2C:14-2a(4), first-degree kidnapping contrary to N.J.S.A. 2C:13- 1b(1), fourth-degree aggravated assault by pointing a firearm contrary to N.J.S.A. 2C:12-1b(4), and second-degree possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39- 4a. To address the specific sufficiency-of-the-evidence issue presented, we recount the relevant evidence as presented by the parties.

The parties do not dispute that defendant and the alleged victim, Carmen Miles, met the evening of Friday, April 30, 1999. A co-worker, Heather Hernandez, accompanied Miles to a Manhattan bar where they encountered defendant and Raymond Surgey. While the four had some rounds of drinks, Miles and defendant engaged in "getting-to-know-you" conversation.

Both defendant and Miles acknowledge that she spent a considerable portion of time talking about her relationship with her boyfriend, Tom. She and Tom had relocated from Georgia in the expectation that their relationship was leading toward marriage, and had moved in with Tom's parents in an apartment in Spring Valley, New York. However, recently their relationship had deteriorated. Suffice it to say that on April 30, 1999, Miles was expressing her disappointment, at times emotionally, about the turn of events in her life.

Miles informed her companions that she had to catch a 9:30 p.m. bus from the Port Authority to get home to Tom's parents' residence. She referred again to the 9:30 bus when, later, the topic of getting some dinner arose. Nonetheless, she decided to stay because both Hernandez and defendant reassured her that they would "make sure she would get home." Although the record is unclear, it appears that Raymond was involved with a car service and that he had access that night to a car and driver. Accordingly, all four went to Tattoo's, a restaurant and dance club/bar, where they engaged in further socializing. There was divergent testimony about whether Miles and defendant kissed while dancing together or engaged in other exchanges that were indicative of mutual romantic interest. To be sure, defendant's description of the evening's encounter portrayed Miles as appearing to be interested in him. Miles testified that she was enjoying the dancing and conversation and that everyone was having a good time.

According to Miles, she raised the subject of leaving because she was concerned about getting home before one o'clock. It was agreed that Raymond's car and driver would transport Miles and defendant from Tattoo's to defendant's home, and then the driver would return to Tattoo's to pick up Raymond. Miles explained that she did not want defendant to know where she lived, so she agreed to be transported to defendant's apartment, which was located along her route home. Defendant had promised to call for another car to take her home from there.

When they arrived, Miles followed defendant into his apartment and waited near the foyer while he went immediately into the bathroom. When he emerged, he entered another adjacent room that she thought was a bedroom. She expected to see him return with a phone. Instead, he reappeared with a gun that he held pointed toward her. In a "cold" voice, he told her not to scream. Trembling and crying, she asked him to let her leave and reminded him that she did not live alone. He reminded her that no one knew where or with whom she was. He informed her that they would have sexual relations and she would enjoy it, and that afterwards they would have some breakfast. She described his condition as agitated and becoming increasingly so whenever she cried, so she tried to calm him by conversing and acting in such a way to make him think that she would cooperate with his wishes. (For example, she assisted him in unbuttoning his shirt).

Eventually, Miles was able to flee the apartment. Her escape was made possible when she suggested that defendant, who wanted them to play strip poker, go into his kitchen to look for playing cards. While he was out of the room, she ran to the front door, unlocked it, and escaped. Outside she screamed and banged on car hoods and apartment doors until she was allowed into the apartment of Arnold and Carol Nussbaum after they heard her crying. The police were called and arrived shortly thereafter; Miles was transported to the police station, questioned and treated by paramedics for a knee abrasion. She was unable to provide the police with defendant's last name or to identify his apartment.*fn1

Defendant's version of the latter portion of the evening differed in two key respects: (1) his presentation and use of the gun and (2) the nature of his interactions with Miles. According to him, they went to his apartment by mutual consent and Miles acted in a manner that was suggestive of intimacy. While they were relaxing together on the living room couch watching television, Miles resumed talking about her relationship with Tom. She began to cry and, according to defendant, became "hysterical," stating repeatedly that she could not believe that she had let herself get into the situation in which she found herself -- namely moving to New York in anticipation of marrying Tom and, then, having that relationship fall apart.

As she remained inconsolable sitting on the couch near to him, defendant began to wonder what to do. As he put it, it was late at night, he was exhausted and had had some drinks that night, and he had in his apartment a woman crying about her former boyfriend. He tried to reassure her that she would be fine and offered to help her search for a place to live. Eventually, he got up from the couch to "get some distance," and went to sit on the radiator opposite the couch. He decided to call a car to take her home and told her that he was going to do so. However, when he went into another room to make that call, he heard the screen door slam and found that Miles was gone. He stated that he later heard a woman scream outside, but never saw Miles again that evening. He fell asleep with the lights and television on. Although he left the front door open, she did not return during the night or the next morning to get the shoes, coat, and bags that she had left behind. He was able to secure her work telephone number from information obtained from a pay stub that was in one of her bags and called that number on Monday and Tuesday, leaving messages about contacting her to give back her things. He succeeded in speaking ...


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