State of New Jersey v. Tige Clark, Superior Court of New Jersey Appellate Division July 3, 2019 (Not Approved for Publication)

State of New Jersey v. Tige Clark

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

I Facts:

Detective Joseph Indano of the South Plainfield Police Department responded to a domestic violence call on July 17, 2016 with Officer Robles. Victim, A.P, told Robles she was involved in an argument with her boyfriend and informed the officer of defendant’s gun in the closet. When asked, she gave him permission to recover the gun in the closet. A semi automatic pistol was found and defendant admitted he did not have a permit to own a weapon. Indano testified in front of the grand jury,  that where he was at the scene she alleged during their argument defendant said, “I’m done f’ing with you. Just so you know, or just so you remember, I have a gun, and it’s right here.” Then defendant pointed to the closet. A.P. felt threatened since she had no idea there was a gun in the house.

On January 20, 2017 the grand jury returned on indictment and formally charged defendant with third degree terroristic threats, second degree possession of a weapon for an unlawful purpose, and two fourth degree unlawful possession of a large capacity ammunition magazine. The defendant was also charged with a fourth degree certain person not to have weapons and a complaint warrant with harassment charge.

Post indictment, defendant filed a motion to dismiss the Counts of the Indictment pertaining to the terroristic threat and possession of a weapon for an unlawful purpose charges from the indictment. On November 26, 2018, the judge heard oral arguments and ruled that the state had presented sufficient evidence to support the charge of terroristic threats. However, the judge found there was not enough evidence to support the allegations that defendant possessed a weapon for an unlawful purpose. The judge found you do not need to possession the weapon to make a terroristic threat because a terroristic threat is provable without a gun.

The state appealed arguing it presented sufficient evidence to the grand jury the defendant possessed a firearm for an unlawful purpose.

II Standard of Review:

“At the grand jury stage, the State is not required to present enough evidence to sustain a conviction.” Ibid. (citing N.J. Trade Waste Ass’n, 96 N.J. at 27). “As long as the State presents ‘some evidence establishing each element of the crime to make out a prima facie case,’ a trial court should not dismiss an indictment.” Ibid. (emphasis added) (quoting State v. Saavedra, 222 N.J. 39, 57(2015)). “[A] court examining a grand jury record should determine whether, ‘viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.'” Id. at 380-81 (quotingState v. Morrison, 188 N.J. 2, 13 (2006)).”

Here, the grand jury charged defendant with possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a)(1)

. That offense is  comprised of four elements:

(1) the object possessed was a firearm;

(2) defendant possessed it;

(3) the purpose of the possession was to use the firearm against another’s property or person; and;

(4) defendant intended to use it in a manner that was unlawful.”

The judge found, the state did not present sufficient evidence to show defendant’s purpose in possessing a weapon was to use it against another person in a manner which was unlawful. The appellate court disagrees with the judge’s analysis.

To find a defendant guilty of making a terroristic threat in violation of N.J.S.A. 2C:12-3(a)(1), “the State must prove, beyond a reasonable doubt, that defendant: (1) threatened to commit a crime of violence; and (2) he intended to terrorize the victim, or acted in reckless disregard of the risk of doing so.” State v. Tindell, 417 N.J. Super. 530, 553 (App. Div. 2011).In this case the defendant did not make only verbal threats to A.P. but pointed to the closet where the gun was located. The appellate court reversed the decision of the possession of a firearm for an unlawful purpose charge.

Finally, the appeals court stated:

A prosecutor has a duty to provide the grand jury with “evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused.” State v. Hogan, 144 N.J. 216, 236 (1996). A prosecutor has no duty, however, to provide evidence to the grand jury unless it “squarely refutes an element of the crime in question[.]” Id. at 237. Here, the prosecutor had no duty to provide the jury with A.P.’s statement that defendant did not threaten to kill her because that statement was not “clearly exculpatory” and it did not “squarely refute[]” any element of the weapons charge. To support the charge that defendant possessed the weapon for the unlawful purpose of making terroristic threats or harassment, the State did not have to establish that defendant threatened to kill A.P. A.P.’s statement that defendant did not threaten to kill her did not negate any element of the offense. Therefore, we reverse the trial court’s order of November 26, 2018, reinstate count two of Indictment No. 17-01-0091, and remand the matter to the trial court for further proceedings in accordance with this opinion.