Opinion
DOCKET NO. A-4902-14T3
04-25-2017
STATE OF NEW JERSEY IN THE INTEREST OF N.G., A JUVENILE.
Joseph E. Krakora, Public Defender, attorney for appellant N.G. (Lee March Grayson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-222-15. Joseph E. Krakora, Public Defender, attorney for appellant N.G. (Lee March Grayson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
N.G., a juvenile, appeals from the court's delinquency adjudication that he constructively possessed marijuana. N.J.S.A. 2C:35-10(a)(4). The issue is whether the circumstantial evidence presented at trial was sufficient to allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that N.G. knowingly or purposely possessed the marijuana that was found in a motel room where N.G. was present. We conclude it was, and affirm.
The trial judge credited the State's witnesses, two police officers and a motel manager, and found that N.G. was present with seven other persons in a cramped motel room on Route 22 in Union Township after 1:00 a.m. on September 7, 2014. N.G. was sixteen years old. There were two other juveniles, and five adults in the room. One of the adults had rented the room. The motel rented rooms for periods as short as three hours.
The police officers had responded to the motel after identifying a stolen car that happened to be parked outside N.G.'s motel room. While waiting for a tow truck, they observed one of the juveniles, not N.G., open the motel room door. Smoke was "billowing out." One officer described it as "moderate, not heavy like billowing smoke, but moderate smoke bill -- you know, billowing out, more than the room could, could handle." It had activated the smoke alarm. The juvenile then shut the door, and opened it again. According to an officer, the juvenile "kind of halfway stepped out, as if they were unsure as to what they wanted to do."
Responding to the smoke alarm, the officers entered the room and evacuated its occupants. They discerned a strong smell of burnt marijuana. They searched for, but did not find an active fire. But, they did find two marijuana cigarettes rolled in cigar paper on a table, one used and one not.
The judge found that the eight people had "crammed" into the "tiny" room. One officer estimated the room was ten-by-twelve feet, and the other estimated it was twelve-by-fifteen. It contained a full-sized bed, a small night stand, and a small table with chairs in the three to four feet of space to the left of the bed. There was also a small adjoining bathroom with a closed window.
The smoke did not obscure the officers' sight. When they entered the room, some of the occupants stood near the table, within reach of the marijuana, and some others stood in the roughly two feet of space to the right of the bed. The officers could not specify N.G.'s location, nor confirm whether anyone was in the bathroom.
The officers also did not provide any testimony regarding N.G.'s demeanor, odor, or physical characteristics that might have supported an opinion that he had used the marijuana. There also was no evidence regarding the ages of the adults; their familial relationship, if any, to the juveniles; or how long the eight people had been in the room before police entered. No witnesses testified on behalf of the three juveniles, who were tried together.
One of the juveniles admitted to possessing the marijuana. N.G. and the other juvenile did not. All three were also tried on the charge of jointly possessing a handgun that was found under the mattress in the room. The judge acquitted all three of that charge.
The court found N.G. constructively possessed the marijuana. The judge focused on the nature of the room:
In light of the fact that this was a tiny room and one open room, so it's not a multi-roomed facility, it's not a home with an upstairs and a downstairs. It's a tiny, one room crammed with eight people. There's two persons that are actually supposed to occupy it. . . . [E]ven that sounds cramped. But eight people only make the constructive possession in light of the pervasiveness of the marijuana such that it activated a smoke alarm, so common sensical . . . .The judge concluded: "I find beyond any reasonable doubt that the elements that . . . Mr. [G.] had constructive possession over [the marijuana] . . . in light of the overwhelming evidence of marijuana in that small room." The court added that N.G. "acted knowing or purposely." The judge thereafter imposed a period of probation and other conditions.
On appeal, N.G. contends:
POINT I
THE TRIAL COURT MISAPPLIED THE LAW BY FINDING THAT THE JUVENILE'S MERE PRESENCE IN THE MOTEL ROOM SUPPORTED AN ADJUDICATION OF DELINQUENCY
FOR CONSTRUCTIVE POSSESSION OF LESS THAN FIFTY GRAMS OF MARIJUANA.
POINT II
THE TRIAL COURT SHOULD HAVE GRANTED DEFENSE COUNSEL'S MOTION TO DISMISS COUNT 3 OF THE COMPLAINT AT THE END OF THE STATE'S CASE.
In considering N.G.'s argument that the evidence was insufficient to support an adjudication of delinquency, "we are obligated to view the competent evidence on the record indulgently, giving all favorable inferences to the State." State ex rel. A.R., 447 N.J. Super. 485, 523 (App. Div. 2016). We defer to the trial court's findings that are based on its assessment of live witnesses and its feel of the case. State v. Locurto, 157 N.J. 463, 471 (1999); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We do not independently assess the evidence as if we were the initial fact finder. Locurto, supra, 157 N.J. at 471. However, we review de novo the trial court's interpretation of the law and legal consequences flowing from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A person unlawfully possesses marijuana when the person "knowingly or purposely . . . possess[es] [it], actually or constructively . . . ." N.J.S.A. 2C:35-10. As the statute expressly states, a person need not actually possess the marijuana on his person. Constructive possession suffices. A person constructively possesses an item when "the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 237 (2004). A person may share such possession with others. State v. Schmidt, 110 N.J. 258, 270 (1988).
Ownership also is not essential, since an individual can knowingly control the item without owning it and be guilty of unlawful possession. State v. Brown, 80 N.J. 587, 598 (1979). Thus, although the statute requires knowing or purposeful possession, the concept of possession includes an element of intention to exercise control over the object. See State v. $36,560.00 in U.S. Currency, 289 N.J. Super. 237, 260 (App. Div. 1996) (stating "[a]ll that is necessary is 'an intention to exercise control over [the item] manifested in circumstances where it is reasonable to infer that the capacity to do so exists.'" (quoting Brown, supra, 80 N.J. at 597)), certif. denied, 147 N.J. 579 (1997). Given the state-of-mind element, proof is usually by circumstantial evidence. Id. at 260-61.
A finding of constructive possession must rest upon the specific facts and circumstances of the case. See Brown, supra, 80 N.J. at 594 (stating a "meticulous and objective analysis of the evidence is imperative"). In the various cases that have grappled with the issue, relevant factors have included: the location of the contraband, see, e.g., Brown, supra, 80 N.J. at 595; State v. Jackson, 326 N.J. Super. 276, 281-82 (App. Div. 1999); the defendant's or others' control of the location or the container in which the contraband was found, see, e.g., State v. Shipp, 216 N.J. Super. 662, 665 (App. Div. 1987); the defendant's knowledge or lack of knowledge of the contraband's existence or location, see, e.g., id. at 666; the defendant's proximity and access to the contraband, see, e.g., State v. Palacio, 111 N.J. 543, 552-54 (1988); the defendant's conduct and demeanor, id. at 552; the presence of other persons and their equal or greater access to the contraband, see, e.g., State v. Sapp, 144 N.J. Super. 455, 461 (App. Div. 1975) (Morgan, J., dissenting), rev'd on dissent, 71 N.J. 476 (1976); the defendant's possession of or proximity to drug paraphernalia — such as packaging or implements of use, see, e.g., State v. Meneses, 219 N.J. Super. 483, 486-87 (App. Div. 1987), certif. denied, 110 N.J. 156 (1988); and evidence of any prior use or possession of contraband, see, e.g., U.S. Currency, supra, 289 N.J. Super. at 261.
While one factor may be insufficient by itself, other circumstances may establish constructive possession. See State v. El Moghrabi, 341 N.J. Super. 354, 364 (App. Div.) (stating "mere presence is insufficient," but other circumstances may establish possession), certif. denied, 169 N.J. 610 (2001); U.S. Currency, supra, 289 N.J. Super. at 261 (same). Where a defendant is among other persons present where drugs are found, "it may not be inferred that he knew of the presence or had control of the drugs unless there are other circumstances or statements of the defendant tending to permit such an inference to be drawn." Brown, supra, 80 N.J. at 593 (quoting Sapp, supra, 144 N.J. Super. at 461).
It is not essential to the State's case that it exclude every alternative innocent explanation of a defendant's conduct. Id. at 599. Although the State must prove the elements of the offense beyond a reasonable doubt, the fact-finder may "draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the [fact-finder] to draw the inference." Id. at 592.
In Brown, for example, the Court affirmed a conviction of drug possession where the defendant was not merely present in an apartment where drugs and paraphernalia were found; the apartment was also his residence. See id. at 594. The Court contrasted its decision from Sapp, where the Court reversed a drug possession conviction. Ibid. The Brown Court noted that Sapp involved a three-story house with many unrelated occupants — facts that could "weaken the inference of knowledge and control . . . otherwise drawable from the fact of occupancy." Ibid. Also significant, the drugs were found in a bedroom, as opposed to the dining room in Sapp. Id. at 596. "An inference of knowledge and control of personalty found in rooms commonly lived in or used by an occupant is well-grounded in our every day experience and is available to a jury as factfinder in a criminal case." Ibid.
Nonetheless, the Brown Court disapproved and limited Sapp to the extent Sapp suggested that a jury could not infer, from the totality of surrounding circumstances in that case, that the defendant possessed drugs. Id. at 599.
Turning to the facts of this case, we recognize that the evidence did not prove to an absolute certainty that N.G. constructively possessed the marijuana. Conceivably, N.G. had nothing to do with the marijuana that some or all of the others had used. There was no evidence, based on testing or observation, that he was under the influence. No one testified about whether there were bits of ash or marijuana on his clothes, or if he smelled of marijuana. No one incriminated him. There also was no evidence that the marijuana was within N.G.'s reach.
Yet, the court did not have to be persuaded to an absolute certainty that N.G. constructively possessed the marijuana. Indulgently considered, the State's evidence was sufficient to persuade the judge, beyond a reasonable doubt, of N.G.'s guilt. This case does not involve a multi-room house, as in Sapp, or even an apartment, as in Brown. N.G. was in a small motel room. The marijuana was not hidden, such that a reasonable factfinder could conclude N.G. was unaware of its presence. Cf. State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) (reversing conviction where there was insufficient proof that the defendant, who was not then present in the home, possessed drugs found under a bunk bed mattress in a bedroom he used). Based on the room's size and the pervasive smoke, the inference was inescapable that N.G. knew there was marijuana.
In Milton, there was also no evidence as to the last time the defendant was in the home, whether he was the exclusive occupant of the bedroom, or that the bed where the drugs were found was his. See id. at 521-23. --------
We recognize that knowledge of the drugs alone is not enough to sustain an adjudication of delinquency. Shipp, supra, 216 N.J. Super. at 666. However, the facts also supported the inference that N.G. intended to exercise — along with others — control over the marijuana. Even if the marijuana was not within N.G.'s arm's reach when the police entered, the room was so small that it was still easily accessible. All the occupants were on equal footing as transient guests — that is, no one had apparently had greater control over the premises. Cf. Jackson, supra, 326 N.J. Super. at 281 (finding insufficient evidence to conclude that a mere overnight guest possessed drugs found hidden in a dresser drawer).
The circumstances were unlike a party where some invitees might use marijuana and others decline. It was about 1:00 in the morning. Additionally, given the size of the room, the number of occupants, and the motel policy of renting rooms for as brief as three hours, it would be reasonable to infer that N.G. and the others did not intend to use the room for overnight accommodations. Rather, they were there for another purpose. The presence of pervasive smoke and the smell of burnt marijuana, support an inference that N.G. was not abstaining, but like others, was present in the room to smoke marijuana and had done so before the officers entered.
In sum, the totality of the circumstances supported the judge's inference that N.G. constructively possessed the marijuana.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION