"While mere presence is insufficient, other circumstances tending to permit the inference may provide sufficient evidence of guilt."
How later courts described this case
- "While mere presence is insufficient, other circumstances tending to permit the inference may provide sufficient evidence of guilt."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2282-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAUN K. HENRY, a/k/a
GREG SMITH, BOON,
RASHAUN BELK, SHAUN
BELK, RASHAWN HENRY,
SHAUN HENRY, SHAWN,
GREGORY MOORE, and
GREG SPINNER,
Defendant-Appellant.
___________________________
Argued November 5, 2020 – Decided December 4, 2020
Before Judges Fuentes, Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-11-1489
Brian J. Neary argued the cause for appellant.
Ian C. Kennedy, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Ian C. Kennedy, of counsel and
on the brief).
PER CURIAM
Defendant Rashaun K. Henry appeals from a judgment of conviction for
third-degree possession of marijuana, second-degree possession of marijuana
with intent to distribute within 500 feet of a public park, and fourth -degree
possession of drug paraphernalia with intent to distribute. The jury acquitted
defendant of money laundering. In a bifurcated trial, the jury found defendant
guilty of possession of a weapon by a previously convicted person. We affirm.
I.
These are the facts adduced at trial. On May 24, 2017, at 12:30 p.m.,
Detective Betina Finch and other members of the Bergen County Sheriff's Office
lawfully entered defendant's home in Englewood, pursuant to a search warrant,
where he resided with his wife Jennifer Henry (Jennifer) 1 and seven-year-old
daughter. He was the target of a narcotics investigation. Defendant was
sleeping in his bed. The home is located within 500 feet of Argonne Park and
has three bedrooms and a barber shop near the kitchen. Detective Finch
searched the kitchen while Detective James Eckert and another officer searched
the bedrooms.
1
We refer to Jennifer Henry by her first name for ease of reference and
intending no disrespect.
A-2282-18T4
2
While searching the kitchen, Detective Finch found a glass jar contain ing
marijuana next to the barber's chair and a second jar of marijuana hidden in a
mop bucket. She seized plastic baggies from the kitchen counter, a digital scale
from inside a cabinet drawer, currency, rolling papers, and grinders. Officers
also found a can of Barbicide powder, a mirror, clippers, trimmers, and cash2
stored inside of a drawer in a box used to store a chess game. No cash register
or business ledger were uncovered. Detective Eckert approached defendant and
observed a handgun lying on a stack of jeans on the nightstand situated to the
left side of the bed. The officers secured defendant and brought him to the living
room. Detective Eckert notified Detective Finch about the handgun and she
photographed and seized it.
A laboratory analysis indicated the marijuana weighed approximately
forty-nine grams, or approximately one-and-one-half ounces. Jennifer claimed
the gun was hers and that she used to keep it in a purse in the closet and never
told defendant about it. She also contended the cash came from the daughter's
bank account. Defendant asserted the marijuana was for his personal use.
2
The cash totaled $3331 and was found in the following denominations: five
one-hundred-dollar bills; fifteen fifty-dollar bills; ninety-six twenty-dollar bills;
106 one-dollar bills; three ten-dollar bills; and five five-dollar bills.
A-2282-18T4
3
On November 1, 2017, a Bergen County Grand Jury charged defendant
under Indictment Number 17-11-01489 with third-degree possession of a
controlled dangerous substance (CDS), marijuana, with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) (count one); second-degree possession of CDS,
marijuana, with intent to distribute within 500 feet of a public park, N.J.S.A.
2C:35-7.1 (count two); second-degree possession of a firearm during a CDS
crime, N.J.S.A. 2C:39-4.1(a) (count three); fourth-degree possession of hollow-
nose bullets, N.J.S.A. 2C:39-3(f) (count four); fourth-degree possession of drug
paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count five); third-
degree financial facilitation of criminal activity (money laundering), N.J.S.A.
2C:21-25(a) (count six); and fourth-degree possession of a weapon by a
previously convicted person, N.J.S.A. 2C:39-7(a) (count seven). Prior to trial,
the State dismissed count four. The trial was bifurcated—counts one through
six were tried first and count seven was tried separately before the same jury.
During the first trial, Sergeant Jason Hornstra of the Bergen County
Prosecutor's Office Narcotics Task Force was qualified as an expert witness for
the State. He testified, based on his experience, about the street value of
marijuana and common packing techniques. Specifically, Sgt. Hornstra testified:
(1) the street value of forty-nine grams of marijuana was approximately $500;
A-2282-18T4
4
(2) the street value of one ounce of marijuana was typically between $200 to
$400 depending on the level of THC in the vegetation; (3) marijuana was often
sold in $20 bags packaged in small sandwich-size plastic bags; and, (4) it would
be more economical for a marijuana user to purchase the drug in bulk.
Defendant and his wife, Jennifer, testified for the defense. Jennifer stated
that she lived at the residence with her husband and seven-year-old daughter.
She explained that her husband worked as a barber in their residence, and while
defendant smoked approximately two to three joints a day, he did not sell or
distribute marijuana. Jennifer also claimed ownership of the handgun and
testified she obtained the gun from a family member after kicking her adult son
out of the residence because she feared her son's volatile temper.
In addition, Jennifer testified that she kept the handgun a secret from
defendant because she knew he did not want a gun in the house. According to
her testimony, she typically kept the handgun hidden in a handbag on the top
shelf of the closet, but, on the day of the search, she inadvertently left the
handgun on the nightstand on top of her jeans because she was rushing to leave
the house and forgot to place it back in the closet.
With respect to the currency found in the kitchen, Jennifer claimed
responsibility for $3000 of the $3331 found in the chess box. She and defendant
A-2282-18T4
5
stored money in the box because clients coming into the house were less likely
to suspect it there. Jennifer testified the $3000 in cash was recently withdrawn
from an account so that it could later be deposited in a bank account in her
daughter's name. Her daughter's school deducted $1700 a month from this
account for her tuition payments.
Defendant also testified on his own behalf. He admitted to possession of
the marijuana seized by the officers but denied selling it. By his own admission,
defendant testified he smokes between three to four joints per day and uses the
grinders to crush the marijuana buds so he can roll the joints for himself. He
explained he typically bought marijuana in bulk, smoked an ounce and a half
every two weeks, and used the scale to weigh the marijuana he purchased.
Defendant reiterated that the money found in the chess box was for his
daughter's bank account. He further testified that he was a heavy sleeper and
did not hear the police enter his home and was unaware of the handgun on the
nightstand until police escorted him into the living room.
Defendant stipulated to being previously convicted of a predicate offense
that rendered him a person who could not lawfully possess a firearm. After the
first phase of the trial, which lasted five days, the jury found defendant guilty of
all counts except count six (money laundering). In the second phase of the trial,
A-2282-18T4
6
the jury found defendant guilty on count seven, possession of a handgun by a
person previously convicted of an offense listed in N.J.S.A. 2C:39-7(a).
On December 14, 2018, the trial court sentenced defendant to a five-year
term of imprisonment on counts one and two, 3 a five-year term of imprisonment
with forty-two months of parole ineligibility on count three, an eighteen-month
term of imprisonment on count five, and an eighteen-month term of
imprisonment on count seven, 4 for an aggregate of eleven-and-a-half years'
imprisonment with forty-two months of parole ineligibility.
The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk
the defendant will commit another offense; six, N.J.S.A. 2C:44-1(a)(6), the
extent of defendant's prior criminal history; and nine, N.J.S.A. 2C:44-1(a)(9),
the strong need to deter defendant and others from violating the law. The court
also found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7), noting defendant
led a law-abiding life for a substantial period of time before the commission of
these crimes, and eleven, N.J.S.A. 2C:44-1(b)(11), the hardship defendant's
3
Counts one and two merged for purposes of sentencing.
4
The sentence for count five runs concurrent with the sentence imposed on
counts one and two. The sentence for count three runs consecutive to the
sentences imposed on counts one, two, and five. The sentence for count seven
runs consecutive to the sentence imposed on count three.
A-2282-18T4
7
family will face as a result of his incarceration. On balance, the trial court found
the aggravating factors outweighed the mitigating factors. This appeal ensued.
II.
Defendant presents the following arguments for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN DENYING
DEFENDANT'S MOTION FOR A JUDGMENT OF
ACQUITTAL ON COUNTS [ONE] THROUGH
[FIVE] AT THE CLOSE OF THE STATE'S CASE.
A. THE STATE FAILED TO PRESENT ANY
EVIDENCE TO SUPPORT A FINDING OF EITHER
ACTUAL OR CONSTRUCTIVE POSSESSION OF
THE CONTRABAND BY RASHAUN [K.] HENRY.
B. IN THE ALTERNATIVE, THE STATE FAILED
TO PRESENT ANY EVIDENCE TO SUPPORT A
FINDING OF INTENT TO DISTRIBUTE
MARIJUANA OR DRUG PARAPHERNALIA.
POINT II
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR
TRIAL BY CONDUCT OF THE PROSECUTOR.
A. BY INTRODUCING EVIDENCE OF NON-
TESTIFYING WITNESSES, THE PROSECUTOR
DEPRIVED DEFENDANT OF HIS RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM.
B. REPEATED COMMENTS BY THE
PROSECUTOR IN SUMMATION DENIED
DEFENDANT A FAIR TRIAL.
A-2282-18T4
8
POINT III
DEFENDANT WAS DENIED HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO THE
EFFECTIVE REPRESENTATION OF COUNSEL
WHEN HIS TRIAL ATTORNEY FAILED TO RAISE
AN AVAILABLE AFFIRMATIVE DEFENSE (Not
Raised Below).
POINT IV
THE SENTENCING JUDGE ABUSED HIS
DISCRETION BY IMPOSING A CONSECUTIVE
RATHER THAN A CONCURRENT SENTENCE ON
COUNT [SEVEN].
None of these arguments warrant reversal of defendant's convictions.
When "'the sufficiency of the evidence on an acquittal motion'" is challenged on
appeal, appellate courts evaluate the totality of the State's evidence under the de
novo standard of review. State v. Jones, 242 N.J. 156, 168 (2020) (quoting State
v. Williams, 218 N.J. 576, 593-94 (2014)). We must determine
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
See also Jones, 242 N.J. at 168 (citations omitted).
A-2282-18T4
9
A court will enter a judgment of acquittal if at the close of the State's case,
"the evidence is insufficient to warrant a conviction." R. 3:18-1. Generally, the
veracity of each inference does not need to be established beyond a reasonable
doubt; rather, "a jury may draw an inference from a fact whenever it is more
probable than not that the inference is true." State v. Brown, 80 N.J. 587, 592
(1979). "Nevertheless, the State's right to the benefit of reasonable inferenc e
should not be used to shift or lighten the burden of proof, or become a bootstrap
to reduce the State's burden of establishing the essential elements of the offense
charged beyond a reasonable doubt." Ibid.
At the conclusion of the State's case-in-chief, defense counsel moved for
a judgment of acquittal on the first five counts of the indictment. The trial court
denied the motion. Defendant contends the court erred, and he is entitled to
judgments of acquittal on all counts, even giving the State the benefit of all
favorable inferences, which can reasonably be drawn from the evidence.
Here, the record shows the State satisfied its burden of proof. Actual
possession of contraband requires "physical or manual control" over the object.
Id. at 597. A defendant constructively possesses contraband, on the other hand,
when "circumstances permit a reasonable inference that [the defendant] has
knowledge of [the object's] presence, and intends and has the capacity to
A-2282-18T4
10
exercise physical control or dominion over [the object] during a span of time."
State v. Spivey, 179 N.J. 229, 236-37 (2004) (citing State v. Schmidt, 110 N.J.
258, 270 (1988)). A defendant's mere presence in the same place as contraband
is not sufficient to establish constructive possession. See State v. Randolph, 228
N.J. 566, 592 (2017). Rather, a finding of constructive possession must rest on
the "meticulous and objective analysis" of the specific facts and circumstances
of the case. Brown, 80 N.J. at 594; see also State v. Whyte, 265 N.J. Super. 518,
523 (App. Div. 1992), aff'd o.b., 133 N.J. 481 (1993).
Defendant argues his presence in the home when the officers entered is
not legally sufficient to support a finding of constructive possession. State v. El
Moghrabi, 341 N.J. Super. 354, 364 (App. Div. 2001) ("While mere presence is
insufficient, other circumstances tending to permit the inference may provide
sufficient evidence of guilt."). Defendant also relies on State v. Jackson, 326
N.J. Super 276 (App. Div. 1999) to support his argument that the State failed to
proffer any evidence "to support the conclusion that [defendant] was anything
more than an overnight guest in the house at 106 Green Street."
These cases are distinguishable from the case under review. In the
Jackson case, the defendant was charged with three crimes related to the
possession of cocaine, which was seized from a closed dresser drawer and the
A-2282-18T4
11
pockets of a pair of pants during a search of an apartment where defendant was
found sleeping. Id. at 278-79. In response to an officer's instructions to get
dressed, the defendant put on the pants from which the cocaine had previously
been recovered. Ibid.
We found that while the evidence supported an inference that the
defendant constructively possessed twenty vials of cocaine seized from the
pants, "the State did not prove nor even contend that defendant resided at the
subject apartment." Id. at 281. The State failed to show that any "indicia of
identification was found on the premises and none of the vials containing
cocaine were tested for fingerprints." Ibid. Because "there was nothing in the
State's case from which a jury could readily draw the inference that the occupant
of such premises would have knowledge and control of its contents," we
concluded that the defendant was entitled to relief on his motion for judgment
of acquittal with respect to the cocaine found in the dresser drawer. Ibid.
(internal citation omitted).
In contrast, here defendant was the only one home when Detective Finch
and the officers entered his residence. The loaded handgun was next to his bed;
the drugs and cash were found down the hall. See State v. Palacio, 111 N.J. 543,
552-54 (1988). Unlike the factual scenario in Jackson, the officers here did not
A-2282-18T4
12
find evidence negating an association between defendant and the home such as
a utility bill addressed to another person. Jackson, 326 N.J. Super. at 279.
Officers entered the home at 12:30 p.m., the middle of the day. Detective Finch
testified that she recovered the contraband from "[defendant's] residence" and
that Jennifer arrived at the home while officers were still there. Detective
Finch's testimony supports a reasonable juror's inference that defendant was an
occupant of the premises and therefore, would have knowledge and control of
its contents.
Moreover, even if Detective Finch's testimony was insufficient, the State
provided additional circumstantial evidence beyond mere presence in the same
location as contraband that would support a finding of constructive possession.
Two jars of marijuana were recovered in the kitchen and surrounding area. "An
inference of knowledge and control of personalty found in rooms commonly
lived in or used by an occupant is well-grounded in our everyday experience and
is available to a jury as factfinder in a criminal case." Brown, 80 N.J. at 596.
Additionally, paraphernalia such as grinders and a digital scale were recovered
from the kitchen, supporting an inference of control. See State v. $36,560.00 in
U.S. Currency, 289 N.J. Super 237, 261 (App. Div. 1996); State v. Meneses, 219
N.J. Super. 483, 486-87 (App. Div. 1987), supporting an inference of control.
A-2282-18T4
13
We discern no legal basis to disagree with the trial court's ultimate conclusion
to deny defendant's motion for acquittal.
We also reject defendant's argument that the State failed to present
evidence to support a finding of intent to distribute marijuana or drug
paraphernalia. Defendant claims that the State failed to carry its burden because
it did not offer testimony that he either "was observed making or attempting to
make a sale of marijuana or paraphernalia to anyone" or that any "conversations
were overhead in which [defendant] arranged or planned such sales," and
further, the amount of marijuana seized from defendant's home was not
inconsistent with personal use.
Although Sergeant Hornstra testified it can be more economical for a
marijuana user to buy in bulk, he also stated that purchases of marijuana of all
quantities are common. And, Sergeant Hornstra opined that marijuana is
frequently sold in twenty-dollar bags containing two grams of marijuana. 5 In
5
In a N.J.R.E. 104 hearing conducted to determine the admissibility of the
State's expert witness under N.J.R.E. 702, the trial judge expressly considered
the limitations imposed by the Supreme Court in State v. Cain, 224 N.J. 410,
426-27 (2016). Defendant did not challenge the expert witness' testimony in
this respect .
A-2282-18T4
14
tandem with the digital scale, grinders, and plastic bags found in defendant's
kitchen, the jury was able to draw inferences from this evidence and determine
whether it is more probable than not that the inference is true. Thus, there is no
indication that the trial court abused its discretion in denying defendant's motion
for acquittal.
III.
In the alternative, defendant contends that his right to a fair trial was
violated by the assistant prosecutor at two points during the trial. First,
defendant claims the assistant prosecutor introduced evidence from a non-
testifying witness, thereby violating his right to confront witnesses against him.
Second, defendant asserts the assistant prosecutor made inappropriate comments
during summation, which could not be overcome by the trial court's curative
instructions.
With respect to the alleged confrontation clause violation, defendant takes
issue with the following exchange between the assistant prosecutor and
Detective Finch on her direct examination:
Q: Detective Finch, in May of 2017, were you assigned
to the [N]arcotics [T]ask [F]orce?
A: Yes, I was.
A-2282-18T4
15
Q. Were you conducting an investigation during that
month?
A. Yes.
Q. Who was the target of that investigation?
A. Rashaun Henry.
Defense counsel immediately objected and moved for a mistrial. The assistant
prosecutor explained to the trial court at sidebar she was eliciting the testimony
to explain that Detective Finch had conducted a "lawful entry and search of the
premises." Prior to trial, the parties agreed to use this language "to shield the
jury from the fact that a judge had signed a search warrant." The trial court
noted this agreement when it stated:
It is perfectly permissible for the State in eliciting its
testimony to have a witness refer to the fact that there
was a search warrant executed to effect a search. In this
particular case, with consent of defense, I . . . will
permit the State to elicit testimony that there was a
lawful entry and search in order to address the same
concern so that the jury doesn't think that there was
some illegality in the search of the premises . . . . [T]he
fact that law enforcement conducted a lawful search or
executed a search warrant in the search of the premises,
it's only common sense, to think, well, why? You know,
why are they doing that? To the extent that we can limit
that, that's why I was going to permit the State to lead
the witness to the point that there was a lawful entry
into the premises.
A-2282-18T4
16
The trial court sustained defense counsel's objection but denied the motion for
mistrial, instead offering a curative instruction to the jury. On appeal, defendant
reiterates the argument that Detective Finch's testimony on this point "was
highly prejudicial and could not be cured by the instruction given by the trial
judge."
It is well settled that the hearsay rule is not violated when police officers
explain the reason they approached a suspect or went to the scene of a crime by
stating that they do so due to information received. State v. Bankston, 63 N.J.
264, 268 (1973). Such testimony is admissible to show that an officer was not
acting in an arbitrary manner or to explain an officer's subsequent conduct. Ibid.
However, when officers become more specific by repeating what some person
told them concerning a crime by an accused, such testimony violates the hearsay
rule. Id. at 268-69. "Moreover, the admission of such testimony violates the
accused's Sixth Amendment right to be confronted by witnesses against him."
Id. at 269; see also Crawford v. Washington, 541 U.S. 36, 59 (2004).
Bankston and its progeny establish that police officers may not imply that
they possess superior knowledge, outside the record, that incriminates the
defendant. State v. Branch, 182 N.J. 338, 351 (2005). "The question is whether
there is a reasonable possibility that the evidence complained of might have
A-2282-18T4
17
contributed to the conviction." Bankston, 63 N.J. at 273 (citation and internal
quotation marks omitted).
In Bankston, a detective testifying against a defendant accused of
unlawful possession of heroin testified at trial that he went to a tavern to look
for an individual possessing narcotics on the basis of an informant's tip.
Bankston, 63 N.J. at 266. During the course of his testimony, the detective
referred to the defendant as "the person we were looking for, the description of
the person we were looking for." Id. at 267. Our Supreme Court reasoned that
testimony explaining the reason why an officer approached a suspect or went to
the scene of a crime can be admissible "to show that the officer was not acting
in an arbitrary manner or to explain his subsequent conduct," id. at 268, but,
where there is no allegation that the police were acting arbitrarily, and as a
result, there is no need for reference to an informer, such testimony may have
prejudicial effect. Id. at 272-73. Therefore, if an officer states or suggests that
some other person provided information linking the accused to the crime, then
the officer has violated the hearsay rule. Id. at 268-69.
Here, similar to Bankston, defense counsel timely objected to the hearsay
statement. However, unlike Bankston where a curative instruction was limited
to the prosecutor's remarks about the detective's testimony during summation,
A-2282-18T4
18
the trial court in the matter under review instructed the jury to disregard the
testimony as soon as the jury was recalled:
Ladies and gentlemen, I am sustaining the objection to
the last question. You are to disregard the question
from the State to this witness regarding who may have
been the target of their investigation. It's not to enter
into your deliberations whatsoever. You are not to
speculate at all as to why an investigation was initiated
by this witness.
And I want to remind all of the jurors that comments
and information placed in the questions by the attorneys
on either direct or cross-examination is not evidence.
The evidence that you are to consider is only the
evidence that you hear from this witness stand and any
items or exhibits that are admitted into evidence.
Defendant asserts that this curative instruction was insufficient. We
disagree. Moreover, we conclude that the trial court's decision to deny
defendant's motion for a mistrial was inconsequential. In determining the
prejudicial effect of the judge's ruling, "[t]he question is whether there is a
reasonable possibility that the evidence complained of might have contributed
to the conviction." State v. Macon, 57 N.J. 325, 335-36 (1971). "The possibility
must be real, one sufficient to raise a reasonable doubt as to whether the erro r
led the jury to a result it otherwise might not have reached." Bankston, 63 N.J.
at 273.
A-2282-18T4
19
Here, the record lacks any evidence to suggest that the jury improperly
gave decisive weight to the use of the word "target." The trial court highlighted
the fact that the jury would have inferred defendant was the target of an
investigation even if the assistant prosecutor had initiated her questioning in the
manner previously agreed upon:
As I said this jury . . . is going to wonder why there was
an entry into the premises for the purposes of the
search. Okay? And I've addressed that, how we're going
to accomplish that. I do not believe that the prejudice
resulting from this comment - - this term used in the
question is of a nature which cannot be cured by a
curative instruction to the jury to disregard. Okay? So
we're going to continue.
When defense counsel persisted, the court concluded:
I think my other consideration is the [f]act that had [the
assistant prosecutor] proceeded in the manner in which
we discussed initially, that it would have been quite
evident and the jury would be able to easily infer that
the target of their investigation, once they saw
[defendant] within the premises in the bedroom near the
weapon and the drugs that he became the target of the
investigation . . . . But for not initiating or beginning
the questioning in the manner in which we discussed,
it's going to be quite evident to this jury who the target
of the investigation is once [the assistant prosecutor]
proceeds in the manner in which we have discussed.
Given the substantial credible evidence against defendant, including
testimony from lay and expert witnesses, as well as physical evidence, we do
A-2282-18T4
20
not consider Detective Finch's testimony, tempered by a curative instruction, to
be clearly capable of producing an unjust result. See Macon, 57 N.J. at 336.
Defendant also contends the prosecutor made repeated comments during
summation that deprived him of a fair trial. At two points, the prosecutor
mentioned the danger of having a seven-year-old child within the reach of a
firearm:
You heard he has a seven-year-old child. Why would
he keep so much marijuana in the house where the kid
could get into it? . . . He's going to keep it on hand
where somebody can steal it. The kids will get into it.
That doesn't make sense.
It's not her secret gun that [defendant] never knew
about. That doesn't make any sense. And she wants
you to believe she takes this gun out. She wants you to
believe that she's this bungling wife. Notice also in her
testimony she was very careful not to confess to child
endangerment. She was very careful to say, I put the
gun down, and then took the seven-year-old out of the
house immediately. Very careful not to confess child
endangerment.
Defendant also maintains that the assistant prosecutor's comments in summation
about he and Jennifer possessing the handgun without a permit, comments about
defendant sharing marijuana with his barbershop clients, insinuating he and
Jennifer were guilty of child endangerment because the police found the
A-2282-18T4
21
handgun on the nightstand, and attempting to shift the burden of proof, deprived
him a fair trial.
We review de novo claims of prosecutorial misconduct during summation.
State v. Smith, 212 N.J. 365, 387 (2012). Prosecutors in criminal cases "are
expected to make vigorous and forceful closing arguments to juries." State v.
Frost, 158 N.J. 76, 82 (1999) (citation omitted). They are "afforded considerable
leeway in closing arguments as long as their comments are reasonably related to
the scope of the evidence presented." Ibid. (citations omitted). They may
comment on the facts or what may be reasonably inferred from the evidence.
State v. Wakefield, 190 N.J. 397, 457 (2007). "However, 'the primary duty of a
prosecutor is not to obtain convictions, but to see that justice is done.'" State v.
Smith, 167 N.J. 158, 177 (2001) (quoting Frost, 158 N.J. at 83).
When making a closing argument to a jury, a prosecutor may not "make
inaccurate legal or factual assertions," Frost, 158 N.J. at 85, or "cast unjustified
aspersions on the defense or defense counsel," Smith 167 N.J. at 177.
Prosecutors may not make "inflammatory and highly emotional" appeals that
divert a jury from a fair consideration of the evidence. State v. Marshall, 123
N.J. 1, 161 (1991). They further cannot "express a personal belief or opinion as
A-2282-18T4
22
to the truthfulness of his or her own witness's testimony." State v. Staples, 263
N.J. Super. 602, 605 (App. Div. 1993).
Where prosecutorial misconduct has occurred, courts should not reverse
unless the conduct was "so egregious that it deprived the defendant of a fair
trial." Wakefield, 190 N.J. at 438 (quoting Smith, 167 N.J. at 181). The
prosecutor's conduct must "substantially prejudice the defendant's fundamental
right to have a jury fairly evaluate the merits of his [or her] defense" in order to
warrant reversal. State v. Roach, 146 N.J. 208, 219 (1996) (citation omitted).
In determining whether prosecutorial misconduct warrants reversal, courts
should consider "(1) whether defense counsel made timely and proper objections
to the improper remarks; (2) whether the remarks were withdrawn promptly; and
(3) whether the court ordered the remarks stricken from the record and instructed
the jury to disregard them." Smith, 167 N.J. at 182 (citing State v.
Timmendequas, 161 N.J. 515, 575 (1999)). Even if the evidence of guilt is
overwhelming, it cannot be a basis for depriving a defendant of his or her right
to a fair trial. Frost, 158 N.J. at 87.
However, "[o]ur task is to consider the 'fair import' of the State's
summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting
Wakefield, 190 N.J. at 457). An isolated improper comment may be
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insufficiently prejudicial to warrant reversal, especially where the trial judge
instructed the jury that counsel's statements are not evidence. State v. Setzer,
268 N.J. Super. 553, 566 (App. Div. 1993). We may also consider whether
statements in the defense counsel's summation prompted the prosecutor's
comments. Smith, 212 N.J. at 403-04.
We conclude defendant's arguments lack merit. The trial court issued a
curative instruction with respect to the child endangerment comments and
sustained defense counsel's objection to the assistant prosecutor's statement
about producing the jeans found on the nightstand. Moreover, the trial court
instructed the jury that the burden of proof rests solely with the State. Two more
curative instructions were issued by the trial court when the assistant pros ecutor
commented on defendant's lack of a gun permit and inference that he could have
been sharing his marijuana with his barbershop clients.
Despite several curative instructions required during the assistant
prosecutor's summation, we conclude, in the context of the entire summation,
that defendant was not deprived of a fair trial. Our Supreme Court has stated
there is a presumption the jury follows instructions. State v. Loftin, 146 N.J.
295, 390 (1996). Further the standard for prosecutorial misconduct is quite high.
"[P]rosecutorial misconduct is not grounds for reversal of a criminal conviction
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unless the conduct was so egregious as to deprive defendant of a fair trial."
Timmendequas, 161 N.J. at 575.
Conduct is egregious when it is "clearly and unmistakably improper" and
substantially interferes with a jury's ability to fairly evaluate the merits of the
defense. Ibid. We find the trial court's curative instructions were sufficient to
overcome any prejudice to defendant. The instructions were given immediately
and addressed the problematic statements at issue. See State v. Vallejo, 198 N.J.
122, 134-35 (2009).
IV.
Next, defendant argues that his trial counsel's failure to raise an
affirmative defense under N.J.S.A. 2C:35-7.1 deprived him of his federal and
state constitutional rights to the effective representation of counsel. Our
Supreme Court has consistently expressed "a general policy against entertaining
ineffective-assistance of counsel claims on direct appeal because such claims
involve allegations and evidence that lie outside the trial record." State v.
Castagna, 187 N.J. 293, 313 (2006), (quoting State v. Preciose, 129 N.J. 451,
460 (1992)). We thus decline to address this issue here and leave defendant to
raise this issue in a post-conviction relief petition. See R. 3:22-1 to -13.
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V.
Lastly, defendant maintains that the trial court erred by imposing
consecutive rather than concurrent sentences. Specifically, defendant asserts
that the eighteen-month sentence on count seven should have been imposed
concurrently for an aggregate sentence of ten years with a forty-two-month
period of parole ineligibility. This argument is "without sufficient merit to
warrant discussion in a written opinion." R. 2:11-3(e)(2). However, we add the
following remarks.
We give deference to sentencing decisions by the trial courts. State v.
Bieniek, 200 N.J. 601, 612 (2010). A sentencing court should review a range of
information "to assess the defendant's history and characteristics, and to
understand the nature and circumstances of his or her crime." State v. Fuentes,
217 N.J. 57, 72 (2014). When sentencing for a CDS offense, the trial judge must
explicitly determine and weigh aggravating and mitigating factors. State v.
Sainz, 107 N.J. 283, 291 (1987). These factors must be supported by "competent
and reasonably credible evidence," State v. Roth, 95 N.J. 334, 363 (1984), and
must be "qualitatively assessed and assigned appropriate weight in a case-
specific balancing process." Fuentes, 217 N.J. at 72-73 (citing State v. Kruse,
105 N.J. 354, 363 (1987)). When imposing a sentence, the trial court must "state
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reasons for imposing such a sentence including . . . the factual basis supporting
a finding of particular aggravating or mitigating factors affecting the sentence."
R. 3:21-4(g). Such a statement of reasons demonstrates "that all arguments have
been evaluated fairly." Bieniek, 200 N.J. at 609.
Additionally, a court imposing a sentence for multiple offenses must bear
in mind that "'though a defendant's conduct may have constituted multiple
offenses, the sentencing phase concerns the disposition of a single, not a
multiple, human being.'" State v. Yarbough, 100 N.J. 627, 646 (1985) (quoting
State v. Cloutier, 286 Or. 579, 591 (1979)). Therefore, when crafting a
consecutive sentence, the sentencing court should make "an overall evaluation
of the punishment for the several offenses involved." Yarbough, 100 N.J. at 646
(citing State v. Rodriguez, 97 N.J. 263, 274 (1984)).
To do so, a court examines criteria such as whether: (1) "the crimes and
their objectives were predominantly independent of each other;" (2) "whether
the crimes were committed at different times or separate places, rather than
being committed so closely in time and place as to indicate a single period of
aberrant behavior;" (3) "any of the crimes involved multiple victims;" and, (4)
"the convictions for which the sentences are to be imposed are numerous."
Yarbough, 100 N.J. at 644. Because a trial court's imposition of a consecutive
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or concurrent sentence is discretionary, an appellate court reviews such a
decision for abuse of discretion. Spivey, 179 N.J. at 245.
Here, the sentencing judge carefully considered the sentence he imposed.
After highlighting and clearly being moved by the handwritten statement
submitted by defendant's daughter, the court made specific findings with respect
to the aggravating and mitigating factors:
As to aggravating and mitigating factors, I do find
[a]ggravating [f]actor [three], the risk that you will
commit another offense given your lengthy history of
substance abuse. The fact that certainly there's a profit
motive here for you.
Aggravating [f]actor [six], the extent of your prior
criminal history. You do have multiple prior felony
convictions, although some of them are somewhat
remote.
Aggravating [f]actor [nine], the strong need to deter
you and others from violating the law. Particularly with
respect to the firearm in this case.
I am going to give minimal weight to [m]itigating
[f]actor [seven]. There haven't been any real issues.
There's no convictions for the past -- it would appear it
was about [sixteen] years since the previous conviction.
I'm going to give minimal weight though to [m]itigating
[f]actor [seven] that you've led a law-abiding life for a
substantial period of time prior to the commission of
these crimes.
I'm certainly going to give great weight . . . to
[m]itigating [f]actor [eleven] in this case. Because your
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incarceration will certainly entail an excessive hardship
to yourself and your dependents, particularly your wife.
And most particularly your daughter. Your young
daughter.
The sentencing court found the aggravating factors outweighed the mitigating
factors.
We conclude the sentencing court's findings on the aggravating factors
were "'based upon competent credible evidence in the record.'" Bieniek, 200
N.J. at 608 (quoting Roth, 95 N.J. at 364). There is no reason to second-guess
the sentencing court's application of the sentencing factors, and no reason to
conclude that the sentence "shocks the judicial conscience." Roth 95 N.J. at
364; see also Bieniek 200 N.J. at 612.
Affirmed.
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