NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-06-522.
Thomas J. Gossé argued the cause for appellant.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo, Fasciale and Carroll.
Tried by a jury, defendant Daniel Lopez was found guilty of two counts of unlawful possession of a weapon (two Ruger 9 mm pistols), N.J.S.A. 2C:39-5(b); and one count of possession of prohibited devices (hollow nose bullets), N.J.S.A. 2C:39- 3(f)(1). He was sentenced to an aggregate five-year term with a three-year period of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs, in October 2007, defendant met Manuela Thompson, who was working as a home care nurse for his sister, Marilyn Lopez, with whom defendant was living at the sister's home in Pennsauken. At the time, both defendant and Thompson were estranged from their respective spouses and in January 2008, began having an affair. Thompson was able to conceal the affair from her husband Charles, with whom she was still living, for several months until he discovered text messages and calls to and from defendant on her phone. Charles confronted his wife, screamed and cursed at her, and accused her of cheating. He argued with her, but never became physically violent.
In August 2008, Thompson left the family home and leased an apartment in the Allison Apartments complex in Evesham/Marlton. Defendant and Thompson continued dating and while he did not move into the apartment, he sometimes stayed overnight with her once or twice a week, although there were some weeks he did not sleep there at all. Defendant did not contribute to the rent. Nor was he named on the lease. He did not keep any clothes or personal belongings at the apartment other than a toothbrush, and would always tell Thompson when he was coming over. Because she left for work very early in the morning, at some point Thompson left a key to the apartment so defendant could leave whenever he woke up. According to Thompson, "one day I just left the key with him and told him you can stay and leave whenever you wake up." During this time, defendant continued living with his sister, although his sister, brother-in-law and son all said that defendant was living with Thompson at her apartment at this time.
The relationship between defendant and Thompson was volatile. The couple broke up many times. Thompson described defendant as "very unstable mentally and emotionally, " and added "a lot of distress" to her life. Thompson became pregnant by defendant but miscarried in December 2008.
On January 25, 2009, defendant visited Thompson's apartment while she was in the shower but was unable to get in the house because the screen door was locked. When Thompson got out of the shower, she discovered she had missed several text messages and calls from him. In the messages, defendant accused her of treating him like a dog. According to Thompson, "All the craziness, his emotional roller coaster started again." Defendant threatened to tell Thompson's husband and was controlling in her view.
It was at this point that Thompson decided to end the relationship, and on that night and the next morning she sent defendant a text message to leave her alone. Later in the day on January 26, 2009, defendant called Thompson and left two voicemails. In the voicemails, defendant threatened to end the relationship on his terms and to confront Thompson's husband to see who was the "more macho man." That night Thompson slept over at her husband's house.
On January 27, 2009, at approximately 3:45 p.m., Thompson went back to her apartment after work to pick up some items for her son, who was sick. When she walked into her apartment, defendant stepped out of the kitchen pointing a handgun at her. Thompson did not expect anyone to be in her apartment and did not see any cars or people she knew in the parking lot. Defendant told her he was tired of their situation and her refusal to divorce her husband. According to Thompson, defendant appeared "very anxious, very nervous. He was sweaty and he look[ed] worn out, worn out like he hasn't been sleeping for weeks."
Defendant kept pointing the gun at her as he walked around her in the kitchen and dining room area. Thompson told defendant there was no need to be pointing a gun at her and told him they should sit down over coffee and talk things over. According to Thompson, she "wanted [defendant] to believe I wasn't afraid of him at all, even though I was because I thought I was going to die any minute, any second." When Thompson went to retrieve napkins from the kitchen, she observed a second gun, two white and red bottles of lighter fluid and matches. Defendant grabbed the second gun and pointed both guns at Thompson, threatening that he had two options that night --kill her or kill her and then himself. Thompson believed defendant was capable of killing her because he was "mentally unstable." Defendant also motioned to the lighter fluid and said he was going to burn the apartment down.
Thompson tried to calm defendant down by talking to him about his relatives and sitting near him. Thompson eventually convinced defendant to let her leave by telling him that she had to take care of her sick son. While giving the impression that everything was normal, and they remained "on good terms, " once she left the apartment, she ran down the stairs and as soon as it was safe, immediately called her husband to tell him that defendant threatened her with a gun in her apartment.
The entire ordeal lasted several hours. Thompson returned to her husband's house and called police to report that defendant threatened her with his gun. The police responded to her husband's home and interviewed Thompson when she made the additional claim that defendant also threatened to burn down the apartment with two bottles of gasoline or lighter fluid, which defendant had displayed to her in plain view in the apartment.
Lieutenant Walt Miller of the Evesham Police Department responded to Thompson's apartment and set up a command post. Knowing that defendant was armed and inside the apartment, Miller evacuated the building and then called and spoke with defendant. Defendant seemed "agitated and angry" and, because he did not believe Miller was a police officer, hung up the phone, as he repeatedly did after several more calls. After speaking to his sister, however, defendant calmed down and once he realized it was the police who were calling him, told Miller that he had two weapons in the apartment. Defendant then exited the apartment, leaving the weapons inside, and was taken into custody.
When asked for his address during processing, defendant responded that he lived at his sister's Pennsauken home. Later, during his recorded interview, defendant again provided the Pennsauken address as his home. He acknowledged spending one or two nights a week at Thompson's apartment but did not leave any belongings there. Defendant also confirmed that the guns and ammo were his.
Patrol Officer Ryan Willard of the Evesham Township Police Department also responded to the scene. After defendant exited the apartment, Willard entered and located the two loaded weapons where defendant described they would be. A black .45 caliber Ruger handgun was sitting on the arm of the couch close to the entrance of the apartment. The handgun was loaded with hollow point bullets but had no round in the chamber. The second, a 9mm Ruger handgun was located in a storage bin on top of the closet in the master bedroom. The handgun was loaded with hollow point bullets and had a round in the chamber. No lighter fluid bottles were found during the search.
In subsequent statements to the police, defendant confirmed that the gun and hollow nose bullets were his. He told police that he kept these weapons at the apartment because of constant fear of Thompson's estranged husband, who was clearly angry over his wife's affair with defendant. According to defendant's brother-in-law, back in November 2008, he helped defendant transfer two firearms from defendant's residence in Pennsauken to Thompson's apartment.
Defendant, however, denied pointing his firearm at Thompson or threatening her in any way. He also denied having any container of accelerant or any gas can and, likewise, denied that he ever threatened to burn down the apartment. As noted, the police specifically looked for, but did not find, the accelerant or gas cans which Thompson alleged defendant used to threaten her. When Thompson was confronted with this fact, she maintained that there had been a container in the apartment and opined that defendant must have removed it and thrown it in the dumpster. The police then searched the dumpster but did not find it.
Thompson stayed at her husband's house the evening of January 27, 2009 and returned to her apartment the next morning, where she found a bullet on her pillow. She called the police. Thereafter, Thompson did not return to her apartment until February 3, 2009, where, together with her husband, she began packing up her belongings. In the bedroom, Thompson found a bag that contained two yellow lighter fluid bottles under a rocking chair. The bag could not be seen until the chair was moved. The next day, her husband called the police, nine days after defendant was arrested and the apartment searched. When the police arrived, there was no furniture left in the room and the bag had been placed on the ground. The police photographed the bottles and collected them as evidence. Evesham Police Officer William Kinner then wrote a police report documenting the discovery and retrieval of the bottles.
On appeal, defendant raises the following issues:
I. THE JURY INSTRUCTION SETTING FORTH THE PREMISES EXEMPTION TO A CITIZEN'S RIGHT TO POSSESS A FIREARM WITHOUT A PERMIT PURSUANT TO N.J.S.A. ...