May 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYHEEM STEWART, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-01-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Parker and Messano.
After a jury trial, defendant Tyheem Stewart was found guilty of third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b. He was sentenced to a period of imprisonment of five years. He now appeals and raises the following points for our consideration:
POINT I THE TRIAL COURT WAS IN ERROR FOR ALLOWING UNDULY PREJUDICIAL EVIDENCE OF ANOTHER PERSON'S INTENTION TO USE A SECOND WEAPON FOR AN UNLAWFUL PURPOSE WHERE DEFENDANT WAS CHARGED WITH A SIMPLE UNLAWFUL POSSESSION OF A WEAPON.
POINT II THE TRIAL COURT WAS IN ERROR FOR NOT GRANTING A JUDGMENT OF ACQUITTAL WHERE THERE WAS NO EVIDENCE OF A KNOWING, INTENTIONAL CONTROL OF THE WEAPON SUCH AS TO CONSTITUTE CRIMINAL POSSESSION.
POINT III THE TRIAL COURT WAS IN ERROR FOR APPEARING TO CONSIDER FACTS NOT DETERMINED BY A JURY IN IMPOSING SENTENCE.
We have carefully considered these contentions in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for re-sentencing in light of State v. Natale, 184 N.J. 458 (2005).
Defendant was indicted with four co-defendants, Khalil Abdul-Aziz, Ishmael Chance, Willie Williams, and Kevin Greene; all, except Greene, were charged in count one of the indictment with possession of a .380 Bryco automatic handgun. In counts two and three of the indictment, Greene alone was charged with the unlawful possession of a 9mm. Lorcin handgun, and possession of that handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a.
The State proceeded to trial against defendant and Chance. The first witness for the State was Detective Keith Rotsaert of the Paterson Police Department. He testified that on October 21, 2001, at approximately 11:00 p.m., he and his partner, Detective Scott Eason, were in full uniform in an unmarked police car when they observed a 1992 Saturn with New York registration run a stop sign. They activated their lights and siren and pulled the vehicle over.
As Rotsaert approached the driver's side of the vehicle, and Eason approached the passenger side, they observed defendant to be the driver of the car. Eason ordered the three rear-seat passengers to place their hands on the headrests in front of them; two did, but the third, later identified as Abdul-Aziz, first made a movement which caught the officers' attention. Rotsaert shined his flashlight on the floor area of the rear seat of the vehicle and saw a silver handgun, the .380 Bryco, on the floor at Abdul-Aziz's feet.
Rotsaert opened the driver's side rear door and ordered the nearest occupant, later identified as Greene, out of the car. He tried to handcuff him, but, when Greene resisted, he had to use mace to subdue him. When he frisked Greene, he found the 9mm. Lorcin handgun.
Eventually, all the vehicle's occupants were placed in custody and the weapons secured by the officers. Co-defendant Chance, the front-seat passenger, was found to be in possession of a pair of latex gloves. Greene's 9mm. Lorcin was loaded with a live round in the chamber and nine other rounds in the magazine clip. The .380 Bryco was loaded with four live rounds. A search of the trunk of the vehicle revealed black and gray hooded masks, work gloves, rubber gloves, and a bag to carry body armor, though no body armor was found.
Detective Eason also testified and corroborated Rotsaert's earlier testimony. He searched defendant at police headquarters and found him in possession of a pair of latex gloves.
As its last witness, the State called Maurice Butler, who had used the alias "Kevin Greene" on the night in question. Butler admitted to having pled guilty to the weapons charges in the indictment and was serving a sentence of five years imprisonment, with a three-year parole disqualifier. He acknowledged the 9mm. Lorcin was in his possession and that he planned to use it to "handle a situation" he had with some gang members. He also testified that he and the other co-defendants drove to Paterson from the Bronx and that he intended "to shoot somebody" near where the vehicle was stopped by the police.
Butler identified the items found in the car's trunk as his, and denied any knowledge of the other handgun, the .380 Bryco. He also contended that the other occupants of the car did not know what he was going to do and were not involved. The assistant prosecutor, however, confronted Butler with his sworn statement given at the time he entered his guilty plea. In that testimony, Butler admitted that he knew about both handguns and that the other occupants of the car were going to accompany him with full knowledge of what he intended to do.
After Butler's testimony, the State sought to introduce the physical evidence seized from the defendants and the vehicle. Defendants objected to the introduction of the 9mm. Lorcin handgun since neither was charged with its possession. The trial judge excluded the gun from evidence reasoning,
My concern with it is -- with this whole case is the State is -- has brought into evidence, which I have allowed, evidence of a plan to shoot somebody; however, [the defendants] are not charged with that. And my concern is that somehow that would seep over into the charges here, the possession of the weapon. And I'm not going to allow it in.
Defendants did not testify, the attorneys gave their summations, the jury was charged, and ultimately returned a verdict of guilty as to defendant and his co-defendant Chance.
In Point One, defendant argues that the admission of the physical evidence seized from the trunk of the vehicle, as well as Butler's testimony regarding defendant's alleged knowledge of the two weapons and Butler's intention to "shoot somebody" was erroneous. He contends that since he was only charged with unlawful possession of the other handgun, this evidence was irrelevant, or, if relevant, was substantially more prejudicial than probative and should have been excluded under N.J.R.E. 403(a). The State counters by arguing the evidence was highly relevant circumstantial proof of defendant's knowing constructive possession of the .380 Bryco handgun and was properly admitted.
During a pre-trial conference, when defendant first raised the objection to Butler's testimony and the physical evidence, the trial judge, relying primarily on our decision in State v. El Moghrabi, 341 N.J. Super. 354 (App. Div.), certif. denied, 169 N.J. 610 (2001), concluded that it was all "highly relevant" "to establish constructive possession" of the handgun. We agree with the judge's assessment and find no error in the admission of the physical evidence or Butler's testimony.
As the State points out, the critical issue in the case was whether there was sufficient proof upon which the jury could find beyond a reasonable doubt that defendant, the driver of the car at the time of the police stop, was in constructive possession of the .380 Bryco handgun found on the floor in the rear of the vehicle and arguably actually possessed by AbdulAziz moments earlier. "A person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004) (quoting State v. Schmidt, 110 N.J. 258, 270 (1988)).
Although mere presence at the scene is insufficient to prove constructive possession, "other circumstances tending to permit the inference (of defendant's capacity to exercise control) may provide sufficient evidence of guilt." El Moghrabi, supra, 341 N.J. Super. at 364. Thus, any evidence that had a "tendency in reason to prove" an inference that defendant had knowledge of and control over the .380 Bryco was relevant to the issue at hand. N.J.R.E. 401.
Clearly, Butler's testimony, if believed, demonstrated defendant drove a vehicle from the Bronx to Paterson with knowledge of Butler's intention to shoot someone and with knowledge of two handguns in the car. Defendant's possession of a pair of latex gloves could reasonably lead to the inference that he intended to "exercise intentional control or dominion over" the second gun at some point, either directly, or "through another person or persons." Criminal Model Jury Charge N.J.S.A. 2C:39-5b. Therefore, the evidence was relevant to the single charge for which defendant stood accused.
Nor do we find the admission of the evidence to have been more prejudicial than probative. Our review under N.J.R.E. 403(a) requires that we accord the trial judge significant "discretion to make appropriate determinations" and "reverse only if 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). As already discussed, the evidence was highly probative on the issue of constructive possession. While the prejudicial effect of Butler's testimony and the physical evidence seized from the car is acknowledged, the trial judge gave a detailed jury charge that specifically described how the jury could consider the evidence, and how it could not. Defendant did not object to the charge, nor request any further instruction. Under these circumstances, we find no basis for reversal.
In Point II, defendant contends that the trial judge should have granted his motion for acquittal made first at the conclusion of the State's case, and renewed again after all evidence was admitted. R. 3:18-1. We review this argument utilizing the same standard employed by the trial judge in determining the motion when made. State v. Kittrell, 145 N.J. 112, 130 (1996). As the Supreme Court enunciated the test in State v. Reyes, 50 N.J. 454, 459 (1967), the trial judge must determine [W]hether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
As already discussed, the evidence produced by the State through Butler's testimony and prior statement, in conjunction with the testimony of the officers, would allow a reasonable factfinder to conclude defendant knew both guns were in the car he was driving from the Bronx to Paterson; that Butler intended to use one of the guns to shoot someone; that the car was stopped near where Butler said the shooting was to occur; that defendant had latex rubber gloves on his person when arrested; and, that the second gun was on the floor of the rear passenger area of the car when stopped. Moreover, the jury was instructed with respect to the permissible inference available pursuant to N.J.S.A. 2C:39-2a (allowing for the presumption of joint possession of a firearm by all occupants of a vehicle).
We conclude that the trial judge properly denied defendant's motion for acquittal because sufficient direct and circumstantial evidence existed for the jury to conclude, beyond a reasonable doubt, that defendant was aware of the gun's presence and was able to exercise dominion and control over it directly or through another.
In Point III, defendant contends that the trial judge considered facts not determined by the jury -- Butler's plan to use the second gun unlawfully against another person -- to impose the maximum sentence for the third-degree offense. The State concedes that because the sentence imposed exceeded the presumptive term of four years, in light of the Supreme Court's subsequent holding in Natale, a remand solely for the purposes of re-sentencing is appropriate. We concur.
Affirmed. Remanded solely for purposes of re-sentencing.
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