On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-05-0058.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and J.N. Harris.
In a five-count indictment, defendant Robert Woodward was charged with third-degree possession of a controlled dangerous substance (clonazepam) in violation of N.J.S.A. 2C:35-10(a)(1) (count one), and four counts of second-degree possession of a weapon (two handguns and two shotguns) by a prohibited person, in violation of N.J.S.A. 2C:39-7(b)(1) (counts two, three, four, and five). Prior to trial, count one was dismissed. A jury acquitted defendant of count four (possession of a twelve-gauge Mossberg pump-action shotgun), but he was convicted of unlawful possession of a .44 caliber Belgian revolver (count two), a .38 caliber Smith and Wesson revolver (count three), and a twelve-gauge single-barrel shotgun (count five). On June 20, 2008, the court sentenced defendant to three concurrent five-year prison terms, with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b)(1). Appropriate statutory penalties and assessments were also imposed. Defendant appeals and we affirm.
The facts are not complicated. The parties stipulated that defendant had previously been convicted of a predicate offense that "makes him ineligible to purchase, own or possess or control a firearm." Thus, the primary issue before the jury was whether defendant owned or possessed the firearms that were seized by the police.
In October 2005, Deborah Woodward (Deborah), defendant's wife, informed Detective Brian Duross (Duross) of the New Jersey State Police that defendant kept guns in their residence on South Wade Boulevard in Millville, New Jersey. Deborah subsequently agreed to wear a small recording device in an attempt to obtain incriminating statements from defendant regarding his possession of the weapons.
On November 4, 2005, after receiving authorization from the New Jersey Division of Criminal Justice to record conversations between Deborah and defendant, Duross met with Deborah to provide her with a recording device, which she placed in her pocket. Deborah then returned to the residence she shared with defendant. The detectives followed Deborah to the home in unmarked cars and watched her pull into the driveway at about 4:45 p.m.
Once inside the house, Deborah spoke with defendant regarding the firearms he kept at their home. Her conversations with defendant were recorded, and the State played portions of those recorded conversations at trial. Deborah asked defendant to move his guns to a safer place in the home because her grandchildren would be visiting soon. Defendant responded that he would put the guns out of the reach of the children:*fn1
DW: . . . the girls want to know if they can come up here and spend the night.
DW: But the thing of it is I can't have [the children] coming up here with these guns in this house. You gotta promise me.
RW: Then . . . I'll put em up. DW: What do you mean?
RW: I said I'll put them up.
The device Deborah carried in her pocket also recorded statements by defendant referring to "a .38" that was "in the pocket." When Deborah continued to discuss with defendant the presence of weapons in their home, the following conversation took place:
RW: Well . . . there's stuff here that you can protect yourself with.
DW: You ain't even never showed me how to use em.
RW: All you do is pull the trigger. . . . that one shotgun, you put a shell in it. Click it. Pull the trigger back. Bang. This here, all you gotta do is pow, pow, pow, pow.
DW: How do you load that one in there? RW: The . . . shotgun?
DW: That's not in there, that's a[n] antique in there.
RW: Oh, you know that thing ain't no good. It's . . . just for show.
DW: The sawed-off. RW: Yeah.
In later conversations, defendant continued to explain to Deborah how to use the firearms in the home, and at one point stated, "that's a .44 Magnum[,] Debbie." Finally, when Deborah again raised the issue of ensuring that the guns in the home would be moved to a safe place away from her grandchildren's reach, the following conversation occurred:
DW: What is so hard to put them somewhere else so they're not in the house?
RW: Yeah, I'll put them up, I'll put them out in the garage.
DW: You know how you hear everyday how kids get a hold of em.
RW: Debbie, I just said, what did I just say[.] Why do you ...