State v. Brims

PLAINTIFF-RESPONDENT, JERSEY, OF NEW STATE BRIMS, DEFENDANT-APPELLANT. v. EDWARD Argued November 2000 Decided June 2001. Green, Deputy Defender, C. Susan Assistant argued Public (Peter appellant Garcia, Defender, cause for A. Acting Public attorney). Cozzi, Prosecutor,

Annmarie argued Assistant the cause for (William Schmidt, respondent Prosecutor, Bergen H. County attorney). opinion of the Court was delivered

COLEMAN, J. primary raised in appeal, issues this which involves a second-degree possession conviction for a firearm for an unlaw- ful purpose, on, are properly whether was instructed and whether the State sustained its of proving, burden purpose unlawful possessing weapon. for a court The trial Appellate and the Division concluded that plain there was no agree error. We and affirm.

I. trial, In convicted of a his first defendant was a in firearm without firearms identification card violation of 2C:39-5c(1); possession N.J.S.A. of a semi-automatic loaded rifle 2C:39-5c(2); possession in in of cocaine violation N.J.S.A. 2C:35-10a(1); possession of a firearm a violation of N.J.S.A. 2C:39-7b; previously in violation of convicted felon N.J.S.A. an unlawful violation of firearm Appellate Division affirmed all of the N.J.S.A. 2C:39~4a. The firearm an exception with convictions because the trial purpose. unlawful That conviction was reversed alleged specific court on the had instructed trial, again In his second convicted Appellate and the possessing a only appeal that conviction. Division affirmed. This focuses September p.m., 8:15 Friday, approximately On two Leonia, municipal parking men in a lot New were observed car, leaning open, with but 'with the Jersey, into a all four doors light jewelry A local interior car off. store owner contacted “suspicious activity going on in the police report that there observed, municipal lot.” At time the men were several two business, store, including pharmacy, supermarket, a liquor adjoining open parking were in the area lot. There were also located parked other in the lot. The lot was near cars area. residential arrived, they police they men what

When the asked two cleaning explained they out the doing, were and the men were receptacles no car. The officers noted that there were trash men, The two who were later identified as immediate area. Brownlee, Ernest defendant Edward Brims co-defendant place police their one of the cars while were directed to hands on back of their ear. officer an officer looked into the seat gloves, pairs pair several of women’s stock- observed black net, bags ings, empty hair and soda bottles a black and several addition, a weapon saw the stock of the back seat. officer protruding from under the driver’s seat. The firearm was a .22 Marlin rifle with a sawed-off stock. There were nine rounds of rifle, ammunition in including one round in the chamber. arrest, At the time of his wearing warm-up suit with two T-shirts underneath. Defendant was wearing also white sweat socks with black nylon-type socks over them. Brownlee had gloves white pair nylons one pocket. his back One of the nylons found on the back seat of the car was stretched out and had trial, a hole in it. At responding police one of the officers testified experience that his people has shown that who commit crimes use gloves disguise their prevent fingerprints, hands and to place nylons over their heads to distort their faces. That officer also people testified that guns saw off the stocks of to make them easier to clothing. conceal under

During retrial, argued the State defendant’s possessing gun robbery. to commit a The trial court decided that it would jury instruct the to consider burglary as an purpose. additional unlawful At the end of the case, State’s dismiss, defendant made a motion to arguing that based on presented, the evidence jury required would be speculate about what defendant’s unlawful purpose was. The trial court denied the motion.

The trial court jury instructed the alleged was to commit burglary or robbery with the gun. objection There was no to that instruction. Defendant again was convicted of for an unlawful purpose. Defendant’s judgment motion for a acquittal notwith- standing verdict was denied. He was sentenced to an extended years term of five-year fifteen with a term parole ineligibility. Appellate

The Division affirmed defendant’s conviction unpublished opinion. Appellate Division concluded that the evidence was support sufficient to an inference of an unlawful Appellate that, Division also determined although it appropriate would have been for the trial court to have informed cleaning out the that defendant was jury that the defense was plain error. We car, do so did not amount the failure to 557, certification, 164 N.J. 753 granted petition for (2000), now affirm. A.2d 1150 and

II. to argues that the failed meet its burden Defendant State purpose possessed for which he the proving its He that the State’s failure to sustain rifle. contends the by trial court’s failure to proof compounded the burden of was purpose charge defendant’s asserted for the in its that inform The lot to clean out the car. State being in the was adequate, jury instructions were clear counters that the establishing totality of the under it met burden that its rifle purpose was to use the that the unlawful circumstances robbery burglary. commit a or provides: was under which defendant convicted statute purpose possession any firearm with a

“Any person who has unlawfully against person property of another is to use it A N.J.S.A. degree.” 2C:39-4a. guilty of a crime of the second requires gun for an unlawful for conviction proof four elements: 2C:39-l(f); (1) meaning object was a N.J.S.A. “firearm”within the (3) (2) as 2C:2-lc; defined N.J.S.A. the firearm was defendant possessed by against possessing firearm to use it person defendant’s purpose (4) to use the firearm in a manner the defendant intended another;

property that was unlawful. (1996).] A.2d 1120 [State Diaz, 628, 635, v. 144 N.J. 677 under N.J.S.A. weapon possession of The unlawful it seeks to is inchoate offense the sense that “an 2C:39-4a act, by prohibiting the commission some prevent incipient crime accompanied is equivocal^] ... when such conduct however Harmon, 189, 203-04, N.J. 104 516 A.2d criminal intent.” Zito, (1986) N.J. (analogizing State v. 54 1047 (1969), explained “presence place at a which 769 off “seeks to head purpose” is a status crime that 304 yet pressed stage

commission of crime ... not to the of an attempt’”). attempt An a robbery burglary to commit or a cognizable Jersey under the New Code of Criminal Justice. 2C:5-1; 2C:15-1; 2C:18-2; N.J.S.A. N.J.S.A. N.J.S.A. State v. Farrad, (2000); Jenkins, 164 N.J. A.2d State v. N.J.Super. 61, (App.Div.1997). legisla 2C:39-4a, objective however, tive punish of N.J.S.A. tois someone possessing a firearm for an unlawful purpose before the stage conduct attempt. Accordingly, escalates of an focus is possessing weapon, on defendant’s not the use, itself or the actual and “a conviction based on the use required precondition is not a to a conviction for Diaz, possessory 635-36, supra, offense.” 144 N.J. at A .2d1120. offense,

Proof of the namely fourth element intended use firearm in a manner unlawful, requires “an identification of the unlawful purpose or purposes suggested by Villar, the evidence.” State v. 150 N.J. (1997). Here, robbery burglary were purposes. identified as the unlawful required mental state for purpose against person firearm with to use it property or of another purpose for identified unlawful “if satisfied it is object [the his engage defendant’s] conscious to conduct of that or person nature to cause such a result. A acts purposely respect with to attendant circumstances if [or he she] 2C:2-2b(1). ... they hopes believes or that exist.” N.J.S.A. “purpose may to use a unlawfully be inferred from the Villar, [facts and] presented supra, circumstances” at trial. N.J. at 696A.2d 674. ease, presented ample

In this the State evidence from which the jury could have inferred possess- defendant’s unlawful for ing the rifle. rummaging through Defendant was found a rental car parking in a lot near several stores and residences under highly suspicious car, circumstances. In the backseat of the where leaning, police gloves, defendant was found stockings, and a hair net. fully Under the front seat was a loaded sawed-off wearing two was with a bullet in the chamber. Defendant rifle including pair nylon clothing September, black layers of socks, Brownlee athletic and co-defendant his white socks over knee-high stockings pocket. in his There was gloves and had to stocking in it could be used testimony with hole that the gloves could be features and that the white conceal one’s facial that, The fact the rifle was leaving fingerprints. to avoid used clothing. were off made it easier to conceal beneath There sawed open of those used still and customers establishments businesses together parking lot. taken satisfied All evidence 454, 458-59, 236 A.2d 385 requirements Reyes, 50 N.J. (1967), jury. ease for submission being in the

Although asserted defendant car, free to was to clean out his rented was parking lot firearm, possessing purpose in under those facts infer that his robbery circumstances, it in use connection with Indeed, burglary, purposes. are unlawful both which he the sawed-off rifle a lawful never asserted that car, cleaning he purpose. His defense was that was out rented possessing the is not inconsistent with firearm commit which nearby. Finally, robbery burglary lot or receptacles nearby no also informed there were allegedly cleaning from that defendant was depositing the waste the vehicle. only suggestion, the State was

In contrast to the dissent’s purpose was to com required prove that defendant’s unlawful prove robbery burglary; obligated not mit a or a the State was crime, would the intended such as when it the exact details of targeted. person property See identity or or occur the (1995). Petties, 310, 316, 654 A.2d 979 The State 139 N.J. State Moreover, jury’s was the verdict met its burden in this case. represent a not on credible evidence and does based sufficient justice under 2:10-1. miscarriage of Rule

III. Next, jury charge. we focus on the Defendant argues that jury the trial court’s on of a weapon instructions for an purpose jury speculate alleged unlawful allowed the about his purpose possessing unlawful the rifle failed to inform the jury purpose alleged being that his the lot was to the ear. object clean out Because did not the rented trial, jury may only instructions at his conviction be if reversed plain “clearly there was error' —an that capable error was result,” 2:10-2, producing unjust R. such that a reasonable is raised jury doubt “as to whether the error led the to a result it might Macon, otherwise not have reached.” State v. 57 N.J. (1971). 336, 273 A.2d 1 jury

The as instructed follows: mental element of to use firearm purpose find unlawfully requires you object, design, ] the a firearm with the conscious with a defendant! against intent to use it the specific another in an unlawful person property charged as manner the indictment and for some other this case, possessing defendantfs] the State contends that the unlawful purpose burglary firearm was You must not own robbery. your consider notions unlawfulness of some other undescribed ], but rather purpose you defendant! charged. must consider whether State has proven The State need not which prove ] crime the intended specific completed defendant! using alleged to commit the firearm. The unlawful be may surrounding from all inferred that was said or done and from all circum- of this stances ease. We are convinced that the charge requirement satisfies the “ jury ‘may not convict [under N.J.S.A. 2C:39-4a] based their own notion of the unlawfulness of other some undescribed ” Villar, supra, purpose.’ 150 N.J. at (quoting Jenkins, (1989)). N.J.Super. State v. A.2d jury charge provided jury both alleged specific with the purposes permitted it was burglary and consider — robbery jury prohibited stated convicting from —and any Hence, defendant based on other unlawful purpose. instruction, whole, when “guide[d] considered as a in its Petties, determination of purposes alleged.” supra, the unlawful 139 N.J. 654A.2d 979. charge that the was find no on which conclude

We basis misleading judge did the trial commit capable jury. the Nor charge by failing the plain to comment in defendant’s error parking lot clean out the present in the assertion that he was suggest gun the not rental car. That defense does Similarly, asserted a defendant’s lawful parking negate in lot not presence his does purpose for words, presence in required other mental state offense. negate rented ear parking lot to clean out the does presence of com contention that State’s burglary. mitting robbery or commenting on when

Trial courts have broad discretion Robinson, during 165 N.J. jury instruction. State evidence (2000). Although A the trial court could .2d 1153 including reasonably have exercised that discretion favor car, cleaning that he was out the rented defendant’s assertion plain error. Defen so not rise to the level of failure do does charge pre-charge approved the at conference. dant’s counsel jury entirely we that the under importantly, More are satisfied theory the case was that he and Brown- stood that defendant’s car, garbage merely cleaning garbage of the rental lee were out hairnet, empty gloves, stockings, as well as included bottles, plan they allegedly had no bags and and that soda gun any charge when use the unlawful manner. purpose to presence if as a whole made it clear that viewed car, only not to commit to clean out the rental lot was robbery jury’s obligation was to return a verdict burglary, theory in the guilty. of not Failure to include defense would have charge not raise a reasonable doubt does had the court included defendant’s reached a different result Macon, N.J. theory charge. supra, its See 1.

IV. judgment Appellate Division. affirm the We STEIN, J., dissenting. appeal

In challenges only validity this defendant of his conviction, retrial, second-degree possession at a weapon purpose, contrary for an unlawful N.J.S.A. 2C:39-21. Defen dant does not contest other convictions at his first trial for possession of a firearm without a firearm’s identification card (N.J.S.A. 2C:39-5(c)), possession of a semi-automatic rifle (N.J.S.A. 2C:39-5(c)(2)), possession of dangerous a controlled sub (CDS) (N.J.S.A. 2C:35-10(a)(1)), possession stance of weap (N.J.S.A. 2C:37-7(b)). by trial, on original convicted felon At his possession which weapon defendant also was convicted of aof purpose, for an unlawful the trial court omitted to instruct the State, concerning purpose by although the unlawful asserted prosecutor argued purpose that defendant’s commit was to an aggravated assault or robbery. That by conviction was reversed Appellate unpublished opinion Division an because of the trial “guide court’s failure to in its determination of the Petties, State purposes alleged.” 139 N.J. (1995). At the changed position retrial the State its purpose asserted that defendant’s unlawful was to commit a robbery burglary, jury, the trial court so instructed the Appellate Division unpublished opin affirmed the conviction ion.

I majority would reverse that conviction. Unlike the vast 2C:39-4, violation N.J.S.A. convictions for in which defendants plead guilty also to or are of an underlying convicted offense that predicate as serves purpose an unlawful conviction, predicate defendant’s criminal awas matter of speculation, rank so much changed so that the theory its concerning defendant’s criminal between the first trial reported and the retrial. No decision has sustained a conviction N.J.S.A. 2C:39-4 proofs under my view, as weak as these. prosecution defendant’s offense was the result of unneces sary prosecutorial overcharging, particularly since defendant’s in question, as well as his CDS, convictions that would other sustainable resulted several trial prison sentence. Because the resulted in a substantial have denying motion dismiss at committed error in court case, I would reverse defendant’s convic- close of the State’s pursuant to N.J.S.A. tion 2C:39-4.

I reliability of defendant’s convic The Court’s confidence likely by tion under N.J.S.A. 2C:39-4 is to be enhanced police investigation officer’s of defendant was fact that the Leonia complaint defendant and his co- prompted an unfounded burglarizing rental car. were defendant’s own Paccico, Mayor Robert former September On Leonia, p.m. and jewelry store at 8:15 observed left his about Brownlee, both of whom are defendant and co-defendant Ernest African-American, lawfully in leaning parked a car a munici- into capacity had a 130 cars and pal parking lot in Leonia. The lot forty fifty full. Paccico observed percent at time was about the lights the not open car and interior were that all four doors were car, steps approached As the defendant took few on. Paccico “very gave Paccico a “Hey, him and man” which toward shouted feeling.” quickly entered his car and drove uneasy Paccico nearby reported Corporal he Carmine police station where Cross, burglarizing knew, men whom that two black were he stealing municipal lot. a car or car radio Corporal parking lot. and then returned to

Paccico Cross parking lot he drew his Cross that as he drove into testified into leaning He kept it at his side. saw defendant and step defendant to rear driver’s side. Cross ordered car replied doing. from the and what he was Brims back car asked undisputed the back cleaning his car. It was that he was out plastic empty bags and several soda of the car contained seat in the Although receptacles several trash there were bottles. lot, vicinity of immediate defendant’s none were standing behind the other ear. then noticed Brownlee own Cross open place back door and ordered both tomen their hands comply immediately, car. Brims did not and “wanted to know why we have going to do this and what’s on.” Defendant was wearing a Chicago warm-up T-shirts, Bulls suit over two one red black, and pairs one and two Cross then socks. asked defen- dant ear, who owned the car. Brims replied that it was a rental and handed Cross his Thrifty driver’s license and a Rent-a-Car agreement bearing the name of defendant’s sister well as as signature, address, number, defendant’s license and date of birth. Concerning agreement, car rental police which the Leonia preserve produce officers did not during discovery, Corporal and Cross testified suppression hearing at the it defendant’s name but “was made out in a woman’s name.” That testimony supported Cross’ contention that he still believed the ear might be stolen when later looking he inside ear shotgun. trial, observed sawed-off produced Prior Brims agreement the rental signature, address, which did include his number, license previously renewed his denied suppression ground motion on the car, inspection Cross’ continued being given after agreement the rental that established Brims’ use, lawful constituted an unreasonable search. That renewed suppression motion also Thrifty was denied. The car rental agreement bearing defendant’s name was admitted evidence at the second trial as a defense exhibit. examining

After agreement, license and rental Corporal Cross backup waited for units to searching arrive before the vehicle. Officer David scene, Stein was next to arrive at the and he ordered defendant and keep Brownlee to their hands on stop the vehicle speaking. Corporal and to began Cross then to inspect the inside of the car. He compart- looked into the rear ment and pair observed on the back gloves, seat a of black four net, stockings, women’s black empty bags hair some and several empty plastic permitted soda bottles. testify Cross was to at trial persons engaging in the commission crimes sometimes use gloves disguise and also use

nylon stockings facial features leaving fingerprints. avoid vehicle, compartment of the Cross the front inspecting

While shotgun protruding from beneath the the butt of a observed there was a to the other officers that seat. Cross shouted driver’s car, to lie down shotgun in and ordered Brims and Brownlee Instead, inter- they ran the ear but were ground. toward on the backup No by Cross and the officers. cepted and restrained weapons either defendant. stock were found on sawed-off, and Cross testified shotgun in the car had been found shotgun shotgun to conceal. The made the easier expert A firearms nine rounds of ammunition. State’s contained normally it in shotgun when he tested testified that the fired gun in revealed acknowledged that an FBI test he but automatically. manually weapon fired but not that the that at the time defendants Testimony at the re-trial disclosed adjoining the businesses in the area apprehended several were store, pharmacy including liquor open, lot still were acknowledged Corporal on cross- supermarket. Cross and a vicinity owners that no homeowners store examination report telephoned police headquarters parking lot had co-defendant suspicious activity. Officer Stein testified that nylons pocket. gloves pair of white and one Brownlee had descriptions maps or of stores or acknowledged that no lists He vehicle or area were found defendants. weapon being of a indicted addition (count one), also indicted convict- Brims third-degree possession of a firearm without at his first trial of

ed (count two), third-degree possession card a firearm’s identification (count three), second-degree posses- rifle a semi-automatic seven). (count original by a felon weapon convicted sion and three convictions on counts two merged defendant’s trial court for an with his conviction to an extended term of him on that offense purpose, and sentenced 312 years years

fifteen with parole ineligibility. five of A consecutive seven-year sentence imposed was for defendant’s conviction of weapon by felon, aof a convicted and a concurrent four-year imposed CDS). term was (possession count four retrial, After reimposed the court the same sentence imposed by as had been the first trial court.

II A noted, As the State’s pur articulation defendant’s criminal pose possessing vague the firearm imprecise. At the retrial, prosecutor theorized that defendant’s shotgun, sawed-off in combination with presence nylon stockings gloves ear, in the rental was sufficient for the beyond to find a reasonable doubt that weapon with robbery commit a burglary. or any State did not proof offer concerning target what the alleged robbery be, burglary might nor did the trial court’s instruction inform the any State bore burden of identifying person or property objective defendant’s criminal Reexamination of the role of N.J.S.A. Jersey 2C:39-4 in the New Code of Criminal Justice (Code) N.J.S.A. 2C:1-1 to 98-4, demonstrates that defendant’s conviction of that offense cannot be sustained on this record. 2C:39-4(a) provides

N.J.S.A. “[a]ny person who has in his possession any firearm with a unlawfully to use it against person property guilty another is of a crime of the second-degree.” That section is provisions one a number of Chapter sale, 39 of the designed regulate Code manufac ture, use or Harmon, weapons. In State v. of certain 189, 196-97, N.J. (1986), Justice O’Hern noted previously that we had provisions “referred to the Chapter Lee, constructed,’ a ‘carefully as State v. 96 N.J. (1984), ‘comprehensive regulatory program,’ State v. In- (1985), 489, 499, which A.2d 545 in each

gram, 98 N.J. 488 others, light in of the lest the sections provision must be construed superfluous.” become Harmon, carefully in the supra, explained the differences we Chapter critical of 39:

three sections speaking, regulating the of firearms and the framework for possession Broadly 2C:39-3, -4, 39: N.J.S.A. other is contained in three sections Chapter weapons highlight 39- -5. sections of the the differences: chapter and The three titles the Possession Devices; 39-4, Prohibited and 3, Weapons Weapons for Unlawful and Sections 39-3 39-5 39-5, and Possession Weapons. Purposes; Unlawful regulatory in are offenses: posses similar that both essentially they prohibit are regard to intent or and other without the individual’s of firearms weapons sion general possessing is them. The “intent” the intent required only purpose “knowledge” language that such circum Code, in the of the the weapon: possess 2C:2-2(b)(2) (defining “knowingly”). mental state of N.J.S.A. stances exist. See regulatory is offenses that N.J.SA. distinction between the two primary dangerous of certain devices— inherently entirely possession 2C:39-3 prohibits armor-piercing shotguns, bullets, example and silencers, sawed-off —whereas a narrower class of firearms—machine 2C:39-5 N.J.SA prohibits possession handguns, shotguns guns, sanctioned and allows such be rifles, —but under 58 of the Code. Chapter or other official authorization license, permit, by [ 104 1047. ] N.J. at 516A.2d 197, -5 are that violations of sections 2C:39-3 We also observed 197-98, 516 A.2d 1047. fourth-degree offenses. Id. at third and Harmon, prohib supra, that N.J.S.A. 2C:39-4 also noted We devices, firearms, explosives, destructive possession of its however, observed, weapons. that other We regulatory instance posses section 39-4 in each prohibits its counterparts, unlike device] [the has ‘a to use when the sion of such instruments only possessor * * against It is existence of another property unlawfully person violations under N.J.S.A. 2C:39-4 element that why the unlawful-purpose explains degree of the second that carry the most more serious offenses are, for part, 2C:44-1(d), of incarceration. under N.J.S.A. presumption, (quoting v. 96 N.J. [Id. Lee, A.2d 1047 State (1984)).] 2C:39-4(a) unique among all the also noted that N.J.S.A. We parole-ineligibili triggers alone Chapter 39 offenses that “it 2C:43-6(c).” Ibid. ty of the Graves Act. See N.J.S.A. provisions Chapter 39 of the Code Accordingly, sections the relevant possessory regulatory provisions establish purely include intent, requiring wrongful offenses no as well as more serious promissory require proof culpability offenses that of criminal - part analysis the accused. That led us to observe in Harmon, supra, Legislature something knowing was concerned with more than mere enacting tying offenses. increase in unlawful-purpose By gradation Legislature of the to the an existence of penalty purpose, has made the offenses under section 39-4 are not plain nature simply

regulatory: penalizing se, are directed not at they but rather at possession per penalizing intent to use such affirmatively commit crimes. weapons

[Id. 1047.] at 199, 516 A.2d Moreover, Petties, as we noted in 139 N.J. (1995),

A.2d 979 must illegal be “ must exist [possession ‘at whatever time the State claims that purpose] Harmon, place.’” (quoting offense took 1047). supra, Diaz, 104 N.J. at 516 A.2d v. Accord State 628, 635, (1996). N.J. 677 A.2d 1120 explained although We also in Harmon that the crime of aof firearm for an purpose grouped, unlawful is convenience, Chapter in regulatory 39 with other weapons-posses- offenses, sion that crime nevertheless intent incorporates concept the inchoate typified by offenses of and criminal attempt, solicitation. Characteristic conspiracy, the inchoate offenses —now contained in of5 N.J.S.A to Chapter Code, 2C:5-1 -7 —is their behavior, “designed focus on criminal incipient short, conduct is * * * culminate the commission aof substantive offense but has not yet achieved * * something its culmination because remains be done These offenses * * a commit “always presuppose another crime purpose (citations omitted).] [Harmon, N.J. at supra, Accordingly, we concluded in Harmon posses that the crime of sion a firearm for an “an is inchoate offense in prevent crime,” sense that it incipient seeks to analogous to the more common attempt conspira inchoate offenses such as cy Chapter 203-04, addressed 5 of the Code. Id. at 516 A.2d Mello, 1047. See also State v. 297 N.J.Super. (App.Div.1997) (noting “possession of a firearm for an crime”). a preparatory

B pursuant to principles governing prosecutions legal Some 2C:39-4(a) reasonably One such are well-established. N.J.S.A. is that principle charge gun must include for unlawful purpose instruction a suggested as be the evidence of such unlawful may an identification purposes own notion of the not convict based on their and an instruction that the may other undescribed purpose.

unlawfulness of some (App.Div.1989).] 316, 560 A.2d 1240

[State Jenkins, 234 N.J.Super. handgun possession of a Jenkins defendant was indicted for permit handgun without a purpose, possession of a for an unlawful Defendant was second-degree aggravated assault of wife. simple as assault acquitted aggravated assault but convicted offense, of- possessory of both and convicted a lesser-included between defen- charges based on altercation fenses. The were punched his during bar which defendant dant and his wife in the lot argument continued in the face. The wife bar, resembling gun- sounds in the course which outside by a heard, daughters was heard of defendant’s shots were one shooting,” allegedly wife say “he’s and defendant’s witness .25 caliber police officer that defendant informed handgun at the scene. automatic pos- defendant’s conviction Appellate Division reversed noted an unlawful court session jury that to convict correctly trial court instructed that the possessed a it find that charge must defendant of that person of firearm, against it purpose was to use that his a manner that was another, to use it in and “that he intended 315, act.” Id. law, is, at illegal commit an prohibited by 1240. 560A.2d Appellate Division observed: jury thought the was defendant’s assurance what any It is with impossible say from the fact that defendant acquitted arises problem

unlawful purpose. jury a reasonable doubt aggravated that the had of which means assault, probably gun jury he was It is the believed a at his wife. apparent that defendant fired doing thought carrying gun, so. it his a but not what purpose 316 charge In a cases, most of with unlawful is with a coupled purpose charge gun of an act with the an accomplished homicide— robbery, assault, —a jury

which the court the tells is unlawful. Conviction of such an unlawful act possessing the factual an of supplies basis for inference unlawful purpose gun. charge accompanying But, if the stands or if alone, acquittal charge erases the identification of the unlawful may court purpose, permit jury to convict on the basis as to what speculation possible purposes qualify as unlawful. jury might thought carrying Here, instance, have purpose gun estranged was to or to impress wife, her, threaten or to lessen the chance confrontation with physical others, to fire the into air to avoid weapon attack others. The by problem the State’s pointed up by summation, which included: If gun you feel, reason, whatever that he for an unlawful just be it to show purpose, somebody scare it somebody with, around, wave guilty charge. then must find him you (citations omitted).] [Jenkins, 315, 560A.2d 1240 supra Accordingly, the court pos- reversed defendant’s conviction of weapon session of a purpose for an jury because the charge did not include suggested identification such unlawful as may be purposes evidence jury and an instruction that the not convict based on own may their notion

unlawfulness of some other undescribed purpose. [Id. at 560 1240.] A.2d Villar, Similarly, (1997), State v. 150 N.J. we ¤ noted that jury charge instruction an unlawful purpose must include an suggested identification of the unlawful purpose by the purposes jury evidence and an instruction that the not convict ‘may based on their own notion of the unlawfulness of some other undescribed purpose.’ Jenkins, (App.Div.1989). judge 316, 560A.2d 1240 N.J.Super. 311, In the trial addition, should to the that the criminal explain or state of purpose mind exist at may whatever time the State claims that the offense took and relate possessory place, charge case. Harmon, supra, facts of at 210, N.J. 516A.2d 1047. added).] (emphasis

[Id. at 511, 696A.2d 674 Our cases are concerning less clear extent to which a may permitted be to infer a defendant’s unlawful on the basis of circumstantial question, evidence. On that the most expansive holding Latimore, to date is State v. N.J.Super. (App.Div.1984). A.2d 702 all Latimore four defendants handguns shotgun two possession of a and were convicted of pure of several other purpose, and also were convicted 206-07, 484 702. The State’s Id. at A.2d possessory offenses. Wade, Williams revealed that three evidence defendants — police at 8:01 a.m. seated Payne-were observed two officers and headlights engine running off. with the and an automobile parked the east side Id. 484 A.2d 702. The car was at north, just past of Monmouth facing the intersection West Street Bank, and com- in Red in a mixed residential West Streets Adjacent just the vehicle was a to and east of area. Ibid. mercial Monmouth that fronted on parking lot of a vacuum cleaner store Street, separated the hedges high feet a row of about seven previously police officers parking lot. Ibid. The vehicle from the walking east on Monmouth Latimore had observed defendant cleaner store. Ibid. Street in front of vacuum block, West drove southbound on The officers went around Wade, Street, was seated behind the spoke to defendant who waiting for a friend who was they He said were wheel. Ibid. told visiting A.2d 702. The officers a cousin. Id. They then observed Latimore the area. Ibid. defendants to leave car, and subse- walking Street toward west on Monmouth change and walk to the northwest quently him direction saw officers next observed Ibid. The corner of intersection. hedges. Payne and walk toward step out of car to the vehicle and asked for officers then returned Ibid. The identification, produce. defendants could which the three car, the called officers that Latimore owned When informed adequate Ibid. When produced identification. him over and he At having the car. questioned, he exited Payne was denied direction, proceed- from the area drove the car officer’s Latimore Ibid. ing north on West Street. they 12-gauge hedges found the officers searched the

When handgun ground on the beneath shotgun and sawed-off was then radioed hedges. Information about defendants thereafter, an officer in an- Shortly police headquarters. Ibid. patrol stopped proceed other ear the defendants’ vehicle as it was ing Street, slowly passing east on Monmouth the of intersection occupants placed Street. The West were under arrest. Ibid. Payne twelve-gauge shotgun Defendant had a in pants’ shell his pocket 210, shotgun. that matched a shell found in the Id. at handgun A.2d 702. A second hedges. was found under the Ibid. Concerning sufficiency the of the evidence sustain defen- possession weapons dant’s conviction for of pur- for an unlawful pose, Appellate the Division observed: At the it time was observed the car was at by 3:01 with police, parked, a.m., engine running lights and the out, in residential and area, commercial with a walking in man front of commercial establishment. Latimore Only produced Although getting identification. he Scott, was observed Officer denied by Payne being out of the car. After directed to leave the area, the vehicle returned to the guns scene where the had been left. All of these circumstances, proven coupled

with the inference of statutory of found in a possession vehicle all weapons joint of that are occupants vehicle, sufficient to establish of these all four weapons by circumstance that the occupants. vehicle at an parked morning engine running lights hour of the with early and the out is sufficient an inference that the support were with a weapons to use them against at least unlawfully another. property [Id. at 211, 702.] 484 A.2d Because proximity of the of the defendants in Latimore to the a.m., vacuum cleaner at suspicious store 3:00 pacing of Lati store, in presence more himself front weapons of the and the in hedges adjacent lot, to the evidence Latimore suggestive was far more anof intent to a property-related commit offense Nevertheless, than is the evidence in this ease. holding highlights question in Latimore quality of what proof adequate is to sustain a conviction for weapon for an Helpful guidance resolving may that issue be found in dealing the case law with evidence required prove analogous preparatory attempt offenses of which, conspiracy, both like aof for an purpose, are prevent inchoate offenses that seek to incipient Harmon, 203-04, crime. supra, 104 N.J. at 2C:5-1(a) Concerning attempts, 1047. provides N.J.S.A. that one guilty can be found of an “attempt” to commit a if crime acting crime, for commission otherwise with kind culpability required he: (3) anything as a to do under circumstances which, or omits does Purposely constituting a an act omission be, them to reasonable would believe person commission of conduct to culminate substantial in course step planned the crime. (2000), Farrad, A Justice .2d 648 N.J. preparation mere explained the distinction between Coleman attempt. He for an required to sustain conviction the evidence stated: distinguishing lies in between can be defined. easily difficulty “Attempt” As noted and the requirement attempt.

mere substantial step preparation Penal Vol. New Jersey the 1971 New Penal Code Commentary, Jersey Law the New Criminal Final Code, Report Jersey Volume II: Commentary, of (1971) (hereinafter Commentary), the Model Penal 117 Revision Commission Code’s to in addition to is to set forth two which requirements this problem approach (1) distinguish act from attempt preparation: criminal purpose, requisite in the of conduct’ to accomplish must ‘a course planned be substantial step (2) ‘strongly of criminal act must be corroborative’ criminal result, it a in to constitute such substantial step. order N.J.S.A. 2C:5- statute, Thus, the “substantial requirement “attempt” step” 1a(3), “strongly is corroborative of a defendant acts in a that way is satisfied if ” carry of his to out crime. ‘firmness purpose’ foregoing can be of even a defendant convicted robbery, Based on principles, (2) (1) if he or takes substantial unsuccessful, step if the theft is she purposely (3) threatening while control over the another exercise unlawful property injury. placing immediate of, bodily another in fear with, another or purposely omitted).] (citations [Id. at 753A.2d 648 257-58, (E 268, 269-70, Schwarzbach, A. 423 84 N.J.L. also State v. See 1913) (“[T]o attempt to commit a crime some A an & constitute essential; must an be thing preparation is there more than mere crime.”) directly moving the commission act toward overt require beyond preparation mere sustain proof cases also Our 2C:5-2(a) provides: conspiracy. N.J.S.A. conviction for guilty or to commit a crime is with another persons A conspiracy person person facilitating promoting commission he: or its if with the purpose (1) Agrees or one or more of them such or they with other person persons engage or solicitation will such crime or an attempt in conduct which constitutes crime; to commit such or (2) Agrees planning or to aid such other in the or commission persons person an such crime or solicitation to commit such crime. attempt provides specifically prosecutions conspira Code cy second-degree to commit a first or crime the State need not prove that a defendant committed an overt act in furtherance of 2C:5-2(d). conspiracy. Accordingly, N.J.S.A. Scherzer, N.J.Super. (App.Div.1997), where conspiracy defendants were convicted of to commit first and crimes, second-degree the court observed that of the evidence as to the commission of an overt is sufficiency act not at issue. jury, viewing is Ibid. The only whether reasonable the State’s question evidence light, in its most favorable could find reasonable beyond defendants, doubt acting agreed awith mind, commit, commit, state of purposeful attempted aggravated aided in the commission an sexual assault added.] [Emphasis Our eases also conspiracy note distinction between attempt prosecutions: charge [A] focuses defendants, the intent of the while in an conspiracy primarily tending case the centers attempt primary on the defendants’ conduct inquiry

toward the commission the substantive crime. The crime of conspiracy having complete once the crime, formed the intent to commit a conspirators, take any mere is an step preparation; however, basis preparation, inadequate regardless conviction of the intent. attempt (1968).] [State v. 52 N.J. Moretti, A.2d 499

Ill that, persuaded I analogously am attempt to the crimes of conspiracy, the crime of aof for an unlawful that, purpose requires proof “at whatever time the State claims possessory place,” Harmon, that the offense took supra, 104 N.J. 210, at 516 A.2d only defendant not weapon weapon but also intended to use the to accomplish a purpose. criminal Id. at A.2d quality 1047. The proof necessary view, of is, my to establish an such intent less i.e., proof required than the attempt, to convict of an an act that is a step” “substantial planned the course of conduct to commit the crime strongly and which is corroborative of the criminal Farrad, purpose. 257-58, supra, 164 N.J. at 648. offense, hierarchy, attempt to commit an an criminal offense our crime, a although a involves more substantial preparatory also underlying does step in commission of the crime than the course of ques- an weapon Without tion, been by the at trial would not have proofs adduced State attempt- attempted robbery either or to convict Brims of sufficient any act having presented evidence of burglary, the not ed State robbery constituting step” the commission a “substantial toward burglary. or conspiracy to to analogy proof required convict of

A closer second-degree Although proof no of an or crime. commit a first defendant, necessary, prove must that the act is the State overt commit, commit, or acting agreed attempted to aided purposely, to Scherzer, supra, N.J.Super. in the commission offense. an unlawful A.2d 196. Because obviously prove not individually, need can be committed the State a conviction. underlying agreement to sustain the existence an presented at trial sufficient Equally is that the had not clear State conspira have Brims and co-defendant evidence to convicted having robbery burglary, or offered cy to commit crimes, any any any attempt or agreement, to commit evidence of the commission of those offenses. act aided necessary proofs to sustain acknowledge I that the Although purpose are than possession for an unlawful less conviction for attempt conspiracy, the common thread required prove those among incipient preliminary characteris- those offenses —their very required quality proofs suggests that at the least tics — objective each those offenses should identify the criminal conspiracy, proof of attempt either For be harmonious. offense, agreement to commit step substantial toward the offense, with sufficient requires proof of the intended offense step agreement or the specificity to link substantial offense. required prove the unlawful specificity

No should be less for an prosecution purpose in proof purpose. sufficiently unlawful That must precise be to identify objective specificity the criminal with some and to connect conduct, beyond the of defendant’s mere the question, objective. jury guess to that criminal To allow at objective, speculate the criminal about when the crime was to (or committed), already be committed whether it been had and to rely on criminal equally susceptible benign evidence to both purposes would subvert role for a unlawful purpose charge by from that intended the drafters of our Code. proof

That basic standard was not satisfied in this case. The presence gloves stockings in the back seat the car and in pocket, Brownlee’s combined with the extra T-shirt and socks wearing, prove defendant, simply was does at arrest, the time of his specific shotgun had the intent to use accomplish specific purpose. criminal equally That evidence was possibility consistent with that defendant and Brownlee had stockings, gloves, shotgun used the to commit crime earlier day days or several before the arrest. It also was consistent with explanation, supported by presence empty seat, bottles in the cleaning back that he and Brownlee were out car, an explanation by made more credible the evidence that by had by car been Brims rented and also fact that Brims and Brownlee parking being remained in the lot by after observed presence Paccico. public Defendant’s in a lot p.m., at 8:15 along thirty forty ears, hardly suggestive with other proofs allegedly criminal The State’s that, vague imprecise trial, were so at the first aggravated underlying assault was asserted to be the criminal objective, a contention the State abandoned at the second trial. able, Nor trial court proofs, because of the insufficient identify purposes may suggested the “unlawful as be Jenkins, evidence,” supra, N.J.Super. at 1240, or charged “relate the to the facts Petties, supra, the case.” N.J. 654 A.2d 979. instruction, Because those obvious deficiencies in the wrongly permitted to convict defendant of the their notion of the purpose charge “based on own an Jenkins, supra, purpose.” [ ] unlawfulness of some undescribed view, my only N.J.Super. at 560 A.2d 1240. deficient, addition, but, in the State’s the trial court’s instruction permit insufficient evidence was jury. charge to be submitted to IV stated, I defendant’s conviction For the reasons would reverse for an unlawful PORITZ and Justices For Justice affirmance —Chief VERNIERO, COLEMAN, LONG, LaVECCHIA ZAZZALI —6. STEIN —1.

For reversal—Justice JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW WILLIAMS, JR., R. DEFENDANT-APPELLANT. ROY Argued June 2001. March 2001 Decided

Case Details

Case Name: State v. Brims

Court Name: Supreme Court of New Jersey

Date Published: Jun 19, 2001

Citation: 774 A.2d 441

Court Abbreviation: N.J.