October 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BIENVENIDO LOPEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-1028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2008
Before Judges Lisa, Reisner and Sapp-Peterson.
Tried to a jury, defendant was convicted on three counts of the indictment against him: (1) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and (3) fourth-degree possession of a prohibited weapon or device (hollow point bullets), N.J.S.A. 2C:39-3f.*fn1 With respect to the possession of a handgun for an unlawful purpose count, defendant moved for a judgment of acquittal notwithstanding the verdict, see R. 3:18-2, or for a new trial, see R. 3:20-1. On July 27, 2007, Judge Cleary denied the motions and sentenced defendant for unlawful possession of a handgun to five years imprisonment with a three-year mandatory Graves Act parole disqualifier. See N.J.S.A. 2C:43-6c. She imposed concurrent sentences of three years imprisonment for unlawful possession of a weapon and nine months imprisonment for possession of a prohibited weapon or device. Defendant's motion for bail pending appeal was denied by the trial court and by this court.
Defendant appeals solely with respect to his conviction for possession of a handgun for an unlawful purpose. He argues that the trial judge erred in denying his motions for a judgment notwithstanding the verdict or a new trial with respect to that charge. More particularly, he argues:
APPELLANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE VACATED AS THE STATE DID NOT PRESENT EVIDENCE TO SATISFY THE ELEMENTS OF THE UNDERLYING SUBSTANTIVE OFFENSES.
We reject this argument and affirm.
At about 1:00 a.m. on January 27, 2006, defendant was a patron at Scooter's Restaurant and Bar in Howell Township. He engaged in unwanted communications with a woman patron, who asked her friend, Jeffrey Berger, to intervene. Berger asked defendant to leave the woman alone. Defendant became boisterous and threatening toward Berger, calling him a "f'ing punk." The bartender asked defendant to leave.
Standing by the door, defendant continued to berate Berger, continuing to call him a punk and gesturing in a manner suggesting that Berger should follow him outside. An off-duty corrections officer, Christopher Puccio, was a patron in the bar. He was out of uniform and unarmed. Anticipating possible trouble, Puccio left the bar through a different doorway than the one in which defendant was standing. His intention was to call the local police if a physical altercation ensued.
From his vantage point outside of the bar, Puccio observed defendant, who was straddling the doorway. The left portion of defendant's body was inside the door, and visible to Berger and others inside, while the right side of defendant's body was outside the door. Puccio observed defendant holding a handgun in his right hand, in a low and ready position, "right along by his leg, like you normally would if, you . . . drew a gun out or if you are going to, you know, shoot a gun." He described that defendant held the gun "by his side, hidden behind his leg, so nobody at the bar inside could see this." While holding the gun in this manner, defendant continued challenging Berger, gesturing for him to come outside, and calling him derogatory names.
Defendant then stepped back inside the bar, continuing to hold the gun in the same position. He stood next to a half wall, about four to four-and-one-half feet high, which blocked his lower body from the view of Berger and others in the bar. He continued attempting to induce Berger to come outside. The bartender again directed defendant to leave. As he did, Puccio approached him. As defendant came out of the doorway, he turned toward Puccio, and the muzzle of the gun pointed toward Puccio's midsection. Defendant saw Puccio and acknowledged his presence, after which he quickly put the gun behind his back to obscure Puccio's view of it and then put it in his pocket. Defendant then walked back into the bar.
Puccio followed defendant in and immediately went to Berger, warning him not to go outside because defendant was armed with a gun. Puccio also informed Berger he was going to call the local police, which he then did.
During the 911 call, Puccio maintained visual contact with defendant from outside the bar, except for a short period of time when defendant went back into the bar. The police arrived within several minutes. Puccio identified defendant as the armed individual. While the police were attempting to arrest defendant, he struggled with them. They removed from his pocket a Glock 45 caliber automatic handgun, which was loaded with six hollow point bullets and later found to be fully operable.
Defendant testified at trial. He contended he had consumed significant quantities of alcohol before the incident and had no recollection of any interaction with Berger or the woman for whom Berger intervened. He acknowledged possessing the gun, and maintained he could not give any reason why he took it with him to the bar that night. He said the gun was in his waistband, and it slipped down his leg to the floor, as a result of which he picked it up and held it behind his leg concealing it so no one would see it. He denied having a purpose to use it unlawfully against anyone. A voluntary intoxication charge was given to the jury. It is apparent that the jury did not credit defendant's testimony.
The indictment did not charge defendant with any substantive offenses with respect to his conduct toward Berger. Defendant argues before us, as he did in the trial court, that the absence of proof of an underlying substantive offense resulted in an absence of proof that defendant intended to use the handgun he possessed in an unlawful manner. We do not agree.
We first note that N.J.S.A. 2C:39-4a constitutes a "preparatory crime," and the unlawful purpose element in that crime may be independent of the commission of a substantive offense. State v. Mello, 297 N.J. Super. 452, 466 (App. Div. 1997). The elements of N.J.S.A. 2C:39-4a are: "(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." State v. Banko, 182 N.J. 44, 56-57 (2004). Defendant's argument focuses on the fourth element. He argues that he "was not even charged with any crime relating to the use of a weapon," and the trial court "improperly permitted the State to present to the jury an inference as to [his] purpose rather than particular proof." He therefore concludes that "the trial court forced the jury to speculate in order to create an inference of an unlawful purpose behind [his] possession of a weapon in the absence of substantive proof of these acts."
The law is well settled that a trial court must include in its instructions on the elements of N.J.S.A. 2C:39-4a a particularized identification of the unlawful purpose allegedly harbored by the defendant in possessing the firearm, and must instruct the jurors that they may not convict based on their own notion of the unlawfulness of some other undescribed purpose. State v. Petties, 139 N.J. 310, 319-21 (1995). In this case, Judge Cleary gave this instruction:
The fourth element that the State must prove beyond a reasonable doubt is that the defendant had a purpose to use the firearm in a manner that was prohibited by law. I have already defined purpose for you. This element requires that you find that the State has proven beyond a reasonable doubt that the defendant possessed a firearm with a conscious objective design or 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 to terrorize and/or assault and/or shoot Jeffrey Berger. You must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather you must consider whether the State has proven the specific unlawful purpose charged.
The unlawful purpose alleged by the State may be inferred from all that was said or done and from all of the surrounding circumstances in this case. However, the State need not prove that the defendant accomplished his unlawful purpose of using the firearm. The defense, on the other hand, contends that the defendant never had any intention of using the gun against Jeffrey Berger or any other person.
To sustain a conviction under N.J.S.A. 2C:39-4a, the State is not required to obtain a conviction for underlying unlawful conduct. Petties, supra, 139 N.J. at 315. The purpose of this statute is to deter the commission of substantive crimes, State v. Parolin, 171 N.J. 223, 227 (2002), by making it a crime to possess a firearm for an unlawful purpose before the actor's conduct actually escalates into the use of the firearm. State v. Brims, 168 N.J. 297, 303-04 (2001). The critical consideration is the defendant's state of mind at the time he or she possessed the firearm. If the defendant had a purpose to use the firearm unlawfully against the person or property of another, the defendant has committed the preparatory offense, and it is of no consequence that the defendant never actually committed the intended underlying crime. In the context of this case, if the jury was convinced beyond a reasonable doubt that, during his interaction with Berger when he held the loaded gun by his side while taunting and urging Berger to come outside, defendant had a purpose to use the gun to terrorize, assault, or shoot Berger, he is guilty of the crime. It does not matter that he never actually used the gun to terrorize, assault or shoot Berger.
It is also not necessary for the State to have proven the elements of terroristic threats, assault, or any form of homicide or attempted homicide, or for the judge to charge any such crimes with specificity, including all of their elements. We expressly rejected such an argument in Mello, supra, 297 N.J. Super. at 464-65. We held that in a factual context in which the meaning of generic descriptions of unlawful purposes would be clear to the jury such descriptions are adequate. We said that "a reference to the generic offenses of robbery, theft or burglary, without specific recital of the precise elements of those offenses, would seem to suffice." Id. at 466. We further cautioned that the instructions should be presented in a manner explaining the law to the jury in the context of the material facts. Ibid. (citing State v. Concepcion, 111 N.J. 373, 379 (1988)). Those principles were followed here. There was no error in the charge, which accurately guided the jury's consideration of the fourth element - whether defendant intended to use the gun he possessed in a manner that was unlawful.
We reject defendant's argument that it is impermissible for the State to rely on an inference alone to prove the fourth element. Unlawful purposes may be inferred from circumstantial evidence. Brims, supra, 168 N.J. 304. As juries are routinely instructed, state of mind is something that cannot be seen and is rarely susceptible of direct proof. Defendants do not often announce their state of mind. Thus, whether a defendant possessed a particular state of mind may be determined by inference, taking into consideration all of the surrounding circumstances and all that was said and done. The judge gave such an instruction here.
Naturally, the State must prove the requisite state of mind beyond a reasonable doubt. We have no hesitancy in concluding that the evidence here supported the jury's finding beyond a reasonable doubt that defendant possessed the gun with the intention of using it unlawfully against Berger, namely to terrorize, assault or shoot him. This was a reasonable inference based upon the totality of the circumstances, not speculation.
In denying defendant's post-verdict motions for a judgment notwithstanding the verdict or a new trial, the judge reasoned:
The defendant argues that because the State did not specifically articulate exactly what unlawful offense the defendant intended to commit, the conviction for possession of a weapon for an unlawful purpose must be vacated or a new trial ordered. The defendant cites to STATE v WILLIAMS, 168 New Jersey 323 (2001) as saying that the Court must at least identify the unlawful purpose suggested by the evidence.
Well, in this case I find that the unlawful purpose certainly was suggested by the evidence and it was identified. The jury was presented with evidence and it was identified. The jury was presented with evidence that the defendant attempted to get Mr. J.B. outside to continue a confrontation, that he kept the weapon hidden from J.B. while trying to entice him outside. Further, the jury was instructed at trial that it was the State's contention that the defendant possessed the weapon with the purpose to terrorize, assault or shoot Mr. Berger. And that's J.B. I'm sorry.
It is well established that the trial court is not required in every case to define with precision the exact elements of the crime the defendant is alleged to have intended to commit with the firearm. STATE v MELLO, 297 New Jersey Super 452, 465 (App. Div. 1997). Additionally, the jury may infer unlawful purpose from the evidence presented by the State. STATE v BRIMS, 168 New Jersey 297, 304 (2001).
Now, while the defendant argues that for the jury to infer that the defendant intended to assault or terrorize or shoot J.B. would require a quantum leap, it is in fact a reasonable inference to make. The defendant initiated a confrontation with J.B., proceeded to taunt him by calling him a punk and telling him to bring it out. He then held open the door to the parking lot, stood with his body halfway out the door and continued to taunt and beckon J.B.
At this time the defendant was observed holding his handgun low and to the side, hidden from J.B. So certainly it's by no means a quantum leap to infer unlawful purpose from these actions. . . .
. . . . . . . So I find that the jury certainly could have found that he went there to terrorize or to shoot or to kill someone.
So therefore I find that the State has proven its case, that there is no reason to grant a new trial, and that to set aside the verdict -- I had listened to the credibility of the witness and it does clearly and convincingly appear that there was not a manifest denial of justice under the law.
Judge Cleary accurately stated the controlling legal principles and correctly applied them to the facts of this case. From our review of the record, we are satisfied that the evidence, viewed in the light most favorable to the State, together with all reasonable inferences that could be drawn in favor of the State, supported the jury's finding beyond a reasonable doubt that defendant was guilty of violating N.J.S.A. 2C:39-4a. See State v. Reyes, 50 N.J. 454, 459 (1967).