On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-2178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges Graves and Sabatino.
Defendant, Jeffrey Cox, appeals his conviction of a second-degree "certain persons" weapons offense, N.J.S.A. 2C:39-7(b), following a three-day jury trial. His main contention is that the trial judge committed plain error in admitting, without objection, certain proofs of defendant's prior conduct without sufficient justification under N.J.R.E. 404(b) and the res gestae doctrine. Defendant also maintains that the judge gave the jury faulty instructions as to the proper use of those proofs. We affirm.
Defendant's indictment and prosecution arose out of a police search of his home on a Sunday evening, following his mother's report of domestic violence. The following facts and circumstances, as adduced from the evidence at trial, are pertinent to our analysis of the issues raised on appeal.
On March 21, 2004, defendant, who was then age thirty-nine, returned from Florida with several other family members from a vacation in Disney World. Defendant had been accompanied on the trip by his mother Joan Cox, his brothers Gary and Joseph Cox, Joseph's two children, and Gary's girlfriend Heather.*fn1 The group had been in Florida for about a week and a half. At the time, defendant, his mother, and Gary were residing together in the family home in Howell, while Joseph and his two children were living in Texas.
After defendant, his mother, Gary, and Heather landed at the airport that Sunday afternoon, they were picked up by Heather's parents and driven to the Cox residence in Howell. Heather then continued home with her parents.
Shortly after arriving home, defendant asked Gary to drive him to a nearby convenience store to buy cigarettes and some other incidental items. Gary agreed, and took defendant back and forth to the store. During that brief errand, Gary recalled defendant acting normally, and conversing about trying to start with him a possible family landscaping business. Meanwhile, defendant's mother remained at the house and turned on the television. Gary dropped defendant off back at the house at about 5:00 p.m., and then left to meet up with Heather.
At this point, defendant was home alone with his mother. According to her testimony, defendant then began to act in a "wild" manner. He repeatedly told his mother that "somebody's after me, somebody's after me." She tried to reassure him that he was not in danger, but he persisted. He then looked outside and returned with a "wild look on him." She recalled that he was "foaming at the mouth" and he kept repeating "thank you God, thank you Jesus" and other "crazy things." He also was pacing back and forth rapidly, appearing to his mother "like a wild animal."
Alarmed by this strange conduct, defendant's mother went into her bedroom, not realizing that he was following her. Defendant pushed open the bedroom door and entered, still with a "wild look on his face." He then punched his mother, without provocation, in the face. The punch knocked her onto her bed. Defendant then left the room.
Defendant's mother went to the bathroom to check herself in the mirror. Her face was swollen and her eye was bloody. She went to the kitchen and again encountered her son. Defendant stated to her, "say that you fell down the stairs," referring to her injury. She replied that she would not do so. At that point, defendant started kissing her "frantically, like a son does not kiss his mother."
Defendant's mother broke free and ran across the street to her neighbors' house. She gained the neighbors' attention by flipping over a barbeque in their driveway. Meanwhile, defendant followed her across the street. He grabbed onto her shirt, only releasing it when the neighbors yelled out his name.
A 911 call was placed to the Howell Police Department. At 8:58 p.m., Officer Jason Symons was dispatched to the location. Upon arriving, Officer Symons stood outside his patrol car. A few seconds later, defendant's mother walked over to the officer from the neighbors' house across the street. He noticed swelling on her face.
Officer Symons proceeded to the Cox residence. The officer entered the house after no one came to the door. He then observed defendant, standing at the threshold of his bedroom. Officer Symons asked defendant if he knew why he was there. According to the officer, defendant responded, "[b]ecause I struck, I hit my mother."
Officer Symons then placed defendant under arrest. As he was doing so, the officer observed in plain view a silver revolver on a bunk bed in defendant's bedroom. The officer handcuffed defendant, removed him from the house, and placed him in the patrol car. Officer Symons returned to defendant's room and seized the silver handgun, pursuant to his authority under the domestic violence laws. He then conducted a search*fn2 of the defendant's bedroom for more weapons. He discovered several handguns, some in wooden cases, and rifles. Additional weapons were also found in the room. In all, the officer seized fourteen guns and a knife from the premises.*fn3
The seized weapons were originally owned by defendant's father, who died in 1999. The father had been a target shooter, hunter, and gun collector. According to defendant's mother and brother, the guns had been stored in boxes in the attic after her spouse's death.
After completing the search, which Officer Symons estimated took about twenty minutes, he placed the weapons in the back of his patrol car. The officer then transported defendant to the police station, where defendant was processed. He then took defendant to the county jail.
In his testimony, Officer Symons described defendant's demeanor when he first encountered him:
Q: And you approached him, is that your testimony?
Q: What was the tone of his voice?
A: Just a regular monotone voice, not excited.
Q: And what about his demeanor? How did he appear to you?
A: Normal, just standing upright, wasn't jumping around.
Q: Did you make any observations regarding his face?
A: Nothing out of the ordinary.
A: Nothing out of the ordinary.
Q: Did he appear to be under the influence of any ...