Opinion
DOCKET NO. A-0649-13T1
03-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JANELLE H. WEST, a/k/a JANELLE HELEN WEST, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-05-1131. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Janelle H. West was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The trial judge sentenced defendant to a five-year term of imprisonment with three years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), and imposed the appropriate penalties and assessments.
At the close of the State's case, the trial judge granted defendant's motion for judgment of acquittal on the charge of third-degree terroristic threats, N.J.S.A. 2C:12-3(b). The jury found defendant not guilty of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
On appeal, defendant raises the following contentions:
POINT I
BECAUSE THE CHARGE WAS CLEARLY INDICATED BY THE EVIDENCE AT TRIAL, THE COURT ERRED IN FAILING TO INSTRUCT THE JURY ON N.J.S.A. 2C:39-6(e). THIS ERROR, WHEN RAISED, SHOULD HAVE REQURIED THE COURT TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL. (Partially Raised Below).
POINT II
We affirm defendant's conviction, but for reasons other than those expressed by the trial judge. Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J. Super. 558, 561 (App. Div. 1998). We affirm defendant's sentence.THE COURT IMPROPERLY FOUND AGGRAVATING FACTOR 3, SHOULD HAVE FOUND MITIGATING FACTORS 2, 9 AND 11, AND SHOULD HAVE DOWNGRADED DEFENDANT'S SENTENCE BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE AGGRAVATING FACTORS.
Defendant did not raise this contention at the trial; she raised it for the first time in a post-trial motion. --------
I.
We derive the following facts from the record. Sometime before midnight on January 9, 2012, Amanda Jackman was on the phone speaking with a girl she once dated. Defendant was in the background on the other end of the girl's phone, challenging Jackman to come to her home to fight. Defendant, then eighteen years old, lived in her mother's apartment located on the first floor of a multi-family dwelling that had a common basement area for storage and laundry (the property).
Jackman arrived at the property accompanied by her sister, Devon Jones, and two friends. Upon arriving, Jackman saw defendant, defendant's brother and cousin, and another person outside the property. According to Jackman, the following occurred:
We were all on the back porch and basically everybody was talking and then -- like it wasn't really getting down to nothing so [defendant's brother] was like I don't care, somebody got to fight, rah, rah, rah. So him and this boy started fighting. And then [Jones] was like this ain't the WWF match, I'm not fighting. . . . So then that's when we in the street. [Jones] and [Walker] started fighting. And then my friend was helping me take my earring out, [defendant] came up to me, she punched me. And then after that, that's when I tried to kick [defendant]. . . . But then that's when
[defendant] grabbed her waist and then by that time [the police] pulled up by both sides and [defendant] ran in the house.Jackman testified that when she saw defendant grab her waist, "[she] already knew what that meant. [She] knew that [defendant] had a gun on her." Jackman admitted that she never saw a gun and defendant never said she had a gun or threatened her with a gun; however, she believed defendant had a gun because what "gave it away was the black gloves [defendant] had on."
Police Officer Edward O'Donnell of the Lindenwold Police Department arrived at the scene. He immediately recognized defendant, Jackman, and Jones, and saw defendant and Jackman standing face-to-face in the middle of the street surrounded by several people. He heard Jackman yell, loudly and excitedly that "[defendant] has a gun." He then saw people, including defendant, run toward the property. He chased defendant toward the side of the property and commanded her several times to stop. He did not see a gun on her at that point.
Defendant failed to comply with Officer O'Donnell's commands but, instead, ran onto the porch of the building and attempted to enter through a side door. She found the door was locked and turned around. At that point, Officer O'Donnell saw defendant's "right hand . . . with the gun holding it outside her waistband, pointing down towards the ground." He described what he saw as a large metallic object in the shape of a gun, which he believed was a gun. Defendant then ran and entered the rear door of the building. Officer O'Donnell chased her as she ran down a stairway to the basement. As he descended the stairway, he saw defendant at the right side of a washing machine, heard "[a] large, metallic bang," and saw defendant "close [the] lid to the washing machine and put her hands up in the air and exclaimed, what?"
Officer O'Donnell apprehended defendant and secured the basement until other officers arrived. After they arrived, he checked the entire basement and found no one else there. He then looked inside the washing machine and saw only a handgun, which was loaded with five rounds of ammunition. The State's firearms identification and operability expert testified that the handgun was operable and capable of being discharged. Defendant stipulated that she never applied for, or was issued, a permit to carry or purchase a handgun. Her trial strategy rested on the theory that she never possessed the handgun.
Following her conviction, defendant filed a motion pursuant to Rule 3:18-2 for judgment notwithstanding the verdict and pursuant to Rule 3:20-1 for a new trial. She contended that the judge should have sua sponte charged the jury on N.J.S.A. 2C:39- 6(e), which exempts any person who carries a firearm "about his . . . residence, premises or other land owned or possessed by him" from the provision of N.J.S.A. 2C:39-5(b). Defendant argued that the evidence showing the handgun was found inside her home clearly indicated the appropriateness of the charge.
The judge denied the motions, finding there was sufficient evidence on which a reasonable jury could find defendant guilty beyond a reasonable doubt of unlawfully possessing a handgun in the street outside her home. The judge also found that fleeing into the building with the handgun did not entitle defendant to the statutory exemption. The judge concluded the evidence did not clearly indicate the appropriateness of the charge. This appeal followed.
II.
In Point I, defendant reiterates that the evidence clearly indicated the appropriateness of a jury charge on the exemption in N.J.S.A. 2C:39-6(e). Because defendant did not raise this issue during the trial, we review it for plain error. State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-2). To warrant reversal, the error must be "clearly capable of producing an unjust result." Ibid. "The error must be considered in light of the entire charge and must be evaluated in light 'of the overall strength of the State's case.'" Id. at 90 (quoting State v. Chapland, 187 N.J. 275, 289 (2006).
N.J.S.A. 2C:39-6(e) is an ordinary defense in a prosecution for unlawful possession of a weapon. State v. Moultrie, 357 N.J. Super. 547, 555-56 (App. Div. 2003). A defendant who does not request a charge on a defense must show the evidence clearly indicated the appropriateness of such a charge. Walker, supra, 203 N.J. at 87. The court is not required "to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge." State v. Rivera, 205 N.J. 472, 490 (2011). Instead, the need for the charge must "jump off" the proverbial page. State v. Denofa, 187 N.J. 24, 42 (2006). "Defendant ha[s] the burden to produce some evidence in support of each prong of the defense, irrespective of whether there was strong evidence to the contrary." Walker, supra, 203 N.J. at 87 (citation omitted).
The statutory exemption provides as follows:
Nothing in [N. J.S.A. 2C:39-5(b), (c) and (d)] shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm, or from carrying the same, in the manner specified in [N. J.S.A. 2C:39-6(g)], from any place of purchase to his residence
or place of business, between his dwelling and his place of business, between one place of business or residence and another when moving, or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed location.In Morillo v. Torres, 222 N.J. 104 (2015, our Supreme Court addressed the application of the exemption in the context of qualified immunity. There, the plaintiff was staying or residing at his mother's home at the time he was found outside the home carrying a loaded handgun concealed in the waistband of his pants. Id. at 121. He neither owned nor possessed the home or the property. Ibid. He was charged with unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and incarcerated until he posted bail. Id. at 112. The charge was later dismissed based, in part, on the applicability of the exemption in N.J.S.A. 2C:39-6(e). Ibid.
[N. J.S.A. 2C:39-6(e).]
The plaintiff subsequently filed a civil complaint, alleging violations of his federal and State constitutional rights. Id. at 112-13. The defendants asserted qualified immunity and filed a motion for summary judgment and to dismiss the complaint. Id. at 113. The trial court denied the motion, and we affirmed. Ibid.
Before the Court, the plaintiff argued that the defendants were not entitled to qualified immunity because he was at his home at the time of his arrest and was erroneously charged with unlawful possession of a weapon despite the clear language of N.J.S.A. 2C:39-6(e). Id. at 115. The Court disagreed. The Court noted that "[a]ccording to its plain language, the exemption applies to a gun carried (1) about a place of business and (2) about a residence." Id. at 120. The Court then explained:
However, the language is less than plainly clear when one considers the next portion of the sentence pertaining to keeping or carrying a weapon. The phrase "premises or other land owned or possessed by him" is not perfectly clear as to its application. After the word "premises," there is no comma, which would have indicated that "premises" was intended to be next in a list of places where one unequivocally could keep or carry a weapon. Instead, like the next word, "land," the word "premises" could be read to be modified by the subsequent description of being "owned or possessed by [the person keeping or carrying the weapon]."
The statute's grammatical structure can be read to mean that "premises" and "land" -- both more generic descriptions of areas than "residence" or "place of business" -- must be owned or possessed by the individual to whom a weapon is registered in order for that person to lawfully carry the weapon in
such areas. There is an element of ambiguity inherent in that portion of the exemption's sentence structure. It is not entirely clear whether the exemption was intended to encompass, for example, common areas within a multi-unit dwelling, where one may have a right to be if one is residing in a unit in that dwelling, but which area technically is not possessed by that individual -- such as a basement laundry room. Similarly, it is not clear whether it is intended to encompass, for example, carrying a weapon in the open areas surrounding a private residence where one may be staying but which is not owned or possessed by the individual. The charge against plaintiff arose in such a setting.Given the facts of the case, the Court determined it "[could not] say that the language [of N.J.S.A. 2C:39-6(e)] is without ambiguity as to its intended reach in these circumstances, and case law does not help resolve the question posed about the statute's application in these circumstances." Id. at 121. Noting the paucity of case law interpreting or applying the statutory exemption, and "the lack of clarity and guidance available on the exemption's application generally," the Court held that "under the test for qualified immunity, the defendant officers confronted a question of uncertain application of the exemption to the unlawful possession statute. This was not a setting in which the application of the statutory exemption to unlawful possession was 'clearly established' in the framework of our law." Id. at 125.
[Id. at 120-21 (emphasis added).]
Here, the evidence indicated that defendant was staying or residing in her mother's apartment at the time she was found either on the porch outside the building or in the common basement area carrying a loaded handgun, which she had no permit to carry. Because it was not clearly established that N.J.S.A. 2C:39-6(e) applied to common areas within a multi-unit dwelling or to open areas surrounding a residence where one may be staying, a jury charge on the statutory exemption was not clearly indicated in this case. Accordingly, we affirm defendant's conviction for unlawful possession of a weapon.
III.
Defendant challenges her sentence in Point II. She argues the judge erred in finding aggravating factor N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense," and failing to find mitigating factors N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not contemplate that [her] conduct would cause or threaten serious harm;" N.J.S.A. 2C:44-1(b)(9), "[t]he character and attitude of the defendant indicate that [she] is unlikely to commit another offense;" and N.J.S.A. 2C:44-1(b)(11), "[t]he imprisonment of the defendant would entail excessive hardship to [herself] or [her] dependents[.]" Defendant posits that the judge should have downgraded the sentence to the third-degree range because the mitigating factors substantially outweighed the aggravating factors.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014) As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We are satisfied that the judge did not violate the sentencing guidelines, the record amply supports the aggravating and mitigating factors, and there was no basis for a downgrade. We have considered defendant's contentions to the contrary in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentence is clearly reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION