(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 29, 1997 -- Decided July 17, 1997
O'HERN, J., writing for a unanimous Court.
On New Year's Eve, 1992, Juan Carlos Villar was at TGI Friday's in Iselin. While in an
intoxicated state, Villar struck Nancy Gollar in the face with a beer stein. The blow split open Gollar's lip
down to the muscle and broke a tooth. Gollar needed seven stitches to close the wound and was left with a
permanent scar. She also had to have root canal and repair work done on the chipped tooth. Gollar had
intense pain in her mouth for weeks after the incident. Two years later, she still had throbbing in her gums.
She may need additional root canal in the future.
Villar claims that he only intended to splash a beer in Gollar's face and might have struck her
accidentally. Gollar claims that Villar was unprovoked when he hit her with full force in the face with the
beer stein.
Villar was indicted by a grand jury for second-degree aggravated assault, third-degree aggravated
assault, and third-degree possession of a weapon (the beer stein) for an unlawful purpose. A beer stein
meets the statutory definition of a weapon as an object readily capable of “inflicting serious bodily injury.”
Villar was denied admission to Pretrial Intervention (PTI).
The jury found Villar guilty of second-degree aggravated assault and third-degree possession of a
weapon for an unlawful purpose. Villar was found not guilty of third-degree aggravated assault because the
jury concluded that he did not knowingly or purposely cause bodily injury with a deadly weapon. Instead, the
jury found Villar guilty of simple assault, a disorderly persons offense that was charged as a lesser-included
offense of the third-degree aggravated assault charge. On the second-degree aggravated assault charge,
involving serious bodily injury, the jury found that Villar had been recklessly indifferent to the value of
human life but did not find that Villar had acted purposely or knowingly. The trial court merged the simple
assault conviction with the second-degree aggravated assault conviction and sentenced Villar to five years of
imprisonment. Villar was sentenced to a concurrent three years of imprisonment for the weapons possession
conviction.
On appeal, the Appellate Division vacated the convictions for second-degree aggravated assault and
possession of a weapon for an unlawful purpose. The court affirmed the simple assault conviction and
remanded for resentencing. The court reasoned that but for the erroneous jury instructions on assault, the
jury would have returned a verdict of guilty solely on the lesser-included offense of simple assault with a
deadly weapon. The court believed that it was in the interest of justice not to retry the first count of second-degree aggravated assault and that judgment should be entered solely on the negligent simple assault with a
deadly weapon.
The Supreme Court granted the State's petition for certification and granted leave to the Attorney
General to appear as amicus curiae. The issues before the Court are: 1) whether Villar can be convicted,
under N.J.S.A. 2C:39-4d, for possession of a weapon (the beer stein) for an unlawful purpose of striking
Nancy Gollar; and 2) whether, following a reversal for incorrect jury instructions, there may be a retrial of a
charge of second-degree aggravated assault.
HELD: Juan Carlos Villar can be convicted under N.J.S.A. 2C:39-4d, possession of a weapon (a beer stein)
for the unlawful purpose of striking another patron at a bar. In addition, following a reversal for
incorrect jury instructions, Villar may be retried on the charge of second-degree aggravated assault.
1. In order to sustain a conviction under N.J.S.A. 2C:39-4d, the State must prove beyond a reasonable doubt
that: 1) the item possessed was a weapon as statutorily defined; 2) the defendant possessed the weapon with
knowledge or awareness of control over the weapon; 3) the defendant's purpose or conscious objective was
to use the weapon against the person or property of another; and 4) the defendant intended to use the
weapon in an unlawful manner. The purpose to use the weapon unlawfully may be inferred from the
circumstances. (pp. 5-6)
2. A jury instruction on a charge of possession of a weapon for an unlawful purpose must include an
identification of the unlawful purpose or purposes suggested by the evidence and an instruction that the jury
may not convict based on their own notion of the unlawfulness of some other undescribed purpose. In
addition, the judge should explain to the jury that the criminal purpose or state of mind may exist at
whatever time the State claims the possessory offense took place, and relate the specific unlawful purpose
charge to the facts of the case. (pp. 6-7)
3. In State v. Harmon, the Court did not hold that the State is required to prove that the original purpose
for possessing a weapon was unlawful. The Appellate Division over read Harmon when it concluded that a
person cannot be convicted of possession of a weapon for an unlawful purpose if the original purpose for
possessing the object was lawful. Villar's original purpose for possessing the beer stein was lawful. Villar
may claim that his purpose was always lawful, but he may not escape responsibility if his purpose became
unlawful. (pp. 7-10)
4. It is for the jury to decide whether Villar consciously possessed the weapon for the purpose of inflicting
injury on another. Initially the beer stein was possessed by Villar for the lawful purpose of drinking and was
otherwise an innocuous everyday object. When Villar struck Gollar in the face; however, the jury could infer
that his purpose was to commit an unlawful act with the stein. A jury could find that the State established
all four elements of possession of a weapon for an unlawful purpose under the Harmon test. (pp. 10-11)
5. The evidence supports a conviction other than of negligent simple assault with a deadly weapon. The
differing accounts of the incident can sustain a verdict of aggravated assault. Based on the testimony of
Gollar and her companion, a properly charged jury could find that Villar knowingly, purposely or recklessly
acted under circumstances manifesting extreme indifference to the value of human life. A properly charged
jury could also have found that Gollar's injuries constituted serious bodily injury. Because of the
constitutional prohibition against double jeopardy, Villar cannot be recharged with or convicted of third-degree aggravated assault. However, at his request, that offense can be charged to the jury as a lesser-included offense of second-degree aggravated assault. (pp. 11-17)
6. The verdicts reflect an attempt by the jury to sort out the charges rather than a fatal inconsistency. The
jury's verdicts are not inconsistent because the elements of each of the charges differ. None of the jury
findings on the charges negates an essential element of any other charge. (pp. 17-18)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for retrial of the second-degree aggravated assault count. Consistent with this opinion and at
Villar's request, the trial court shall charge third-degree aggravated assault, fourth degree aggravated assault,
and negligent simple assault as lesser-included offenses of second-degree aggravated assault. The conviction
on third-degree possession of a weapon for an unlawful purpose is REINSTATED.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN and COLEMAN join
in JUSTICE O'HERN'S opinion. JUSTICE HANDLER did not participate.
SUPREME COURT OF NEW JERSEY
A-
123 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JUAN CARLOS VILLAR,
Defendant-Respondent.
Argued April 29, 1997 -- Decided July 17, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
292 N.J. Super. 320 (1996).
Nicholas Ruggiero, Assistant Prosecutor,
argued the cause for appellant (Robert W.
Gluck, Middlesex County Prosecutor,
attorney).
Steven D. Altman argued the cause for
respondent (Benedict and Altman, attorneys;
Mr. Altman and Doris E. McNeil, on the
briefs).
Linda A. Rinaldi, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
From the evidence, a jury could have found that defendant
struck a woman in the face with a beer stein, causing her serious
bodily injury. A beer stein meets the statutory definition of a
weapon as an object readily capable of "inflicting serious bodily
injury." N.J.S.A. 2C:39-1r. The principal issues are (1)
whether defendant can be convicted under N.J.S.A. 2C:39-4d,
possession of a weapon (the beer stein) for the unlawful purpose
of striking the woman; and (2) whether, following a reversal for
incorrect jury instructions, there may be a retrial of a charge
of second-degree aggravated assault.
The jury heard the following evidence. On New Year's Eve, 1992, defendant, Juan Carlos Villar, was at TGI Friday's in Iselin. He was at the bar when Nancy Gollar and a friend arrived and sat next to him. Defendant had been drinking vodka before arriving at Friday's. He admits that he was drunk when the incident occurred and asserted a defense of intoxication to any charge of an intent to harm the victim.
Sometime after midnight, Villar decided to leave. He became irritated while waiting for his check. The bartender further irritated him when she removed his ashtray as he waited. With no ashtray, defendant threw a lit cigarette over the bar. According to defendant, Gollar slid another ashtray towards defendant saying, "Here, try this, you jerk." Defendant says that he intended only to splash his drink in her face, but might have struck her with the stein accidentally. Gollar claims that she intended no affront in sliding the ashtray over and was minding her own business when defendant, with his beer stein in hand,
punched her in the face with a "very hard, very forceful" impact.
(The object has also been referred to as a "goblet.") After the
incident, defendant ran out of the bar, but was detained by a
group of people outside the bar.
There was evidence that the blow split open Gollar's lip
down to the muscle, broke a tooth, and left her covered with
blood. The injury required seven stitches in Ms. Gollar's upper
lip, root canal work, and repair work on a chipped tooth. She
had "intense pain" in her mouth for weeks after the incident.
Two years later, she still had throbbing in her gums. She may
need more root canal work in the future. A scar on her upper lip
is permanent.
A grand jury indicted defendant for second-degree aggravated
assault, third-degree aggravated assault,See footnote 1 and third-degree
possession of a weapon for an unlawful purpose. Defendant was
denied admission to Pretrial Intervention (PTI).
The jury found defendant guilty of second-degree aggravated
assault and third-degree possession of a weapon (the beer stein)
for an unlawful purpose. The jury found defendant not guilty of
third-degree aggravated assault. Instead, the jury found
defendant guilty of simple assault, a disorderly persons offense
that was charged as the lesser-included offense of the third-degree aggravated assault charge.See footnote 2 On the second-degree
aggravated assault charge, involving bodily injury, the jury
found that defendant had been recklessly indifferent to the value
of human life but did not find that defendant acted purposely or
knowingly. (The jury's verdict sheet is attached as Appendix A.)
The trial court merged the simple assault conviction with the
second-degree aggravated assault conviction and sentenced
defendant to five years of imprisonment. The trial court
sentenced defendant to a concurrent three years of imprisonment
for possession of a weapon for an unlawful purpose.
The Appellate Division vacated the convictions for second-degree aggravated assault and possession of a weapon for an
unlawful purpose. It left standing the simple assault conviction
and remanded that for resentencing. We granted the State's
petition for certification.
146 N.J. 570 (1997). We also
granted leave to the Attorney General to appear as amicus curiae.
Complicating this case is its position at the intersection of two carefully structured grids of criminal responsibility. The first grid involves the regulation of criminal assault. In State v. Sloane, 111 N.J. 293 (1988), we explained that the Legislature has graded assaults for purposes of charging and sentencing. The gradations are based on a number of factors, such as the seriousness of the injury to the victim, the state of mind of the criminal actor, the status of the victim, and the use or not of certain forms of weapons. Id. at 296-97.
The second grid involves the regulation of the criminal use and possession of weapons. Possession of certain weapons (such as a sawed-off shotgun) is per se unlawful. See N.J.S.A. 2C:39-3. Possession of other objects (such a pair of modified scissors or a box-cutter) may constitute unlawful possession under "circumstances not manifestly appropriate for [ ] lawful uses." N.J.S.A. 2C:39-5d; State v. Kelly, 118 N.J. 370 (1990); State v. Lee, 96 N.J. 156 (1984). Possession of certain weapons (such as a handgun) may be unlawful if possessed without a license. State v. Ingram, 98 N.J. 489 (1985). Still other objects (such as a baseball bat) are benign in themselves but may become weapons depending on how the objects are used. N.J.S.A. 2C:39-4 makes possession of a weapon for an unlawful purpose a criminal offense. Possession of a weapon (except a firearm) for the purpose of using it unlawfully against persons or property is a
third-degree offense. N.J.S.A. 2C:39-4d. The statutory
framework is a "careful mix" that combines purely regulatory
proscriptions with more serious crimes that require a level of
culpability. State v. Harmon,
104 N.J. 189, 198 (1986); see also
Lee, supra, 96 N.J. at 160 (describing provisions as "carefully
constructed").
In order to sustain a conviction under N.J.S.A. 2C:39-4d,
the State must prove four facts beyond a reasonable doubt: (1)
the item possessed was a weapon within the meaning of N.J.S.A.
2C:39-1r; (2) the defendant possessed the weapon with knowledge
or awareness of control over the weapon; (3) the defendant's
purpose or conscious objective was to use the weapon against the
person or property of another; and (4) the defendant intended to
use the weapon in a manner proscribed by law. Harmon, supra, 104
N.J. at 212. The purpose to use a weapon unlawfully may be
inferred from the circumstances. State v. Petties,
139 N.J. 310,
316 (1995). The offenses under Chapter 39 are directed at the
intent to use weapons to commit crimes, and not merely to
penalize possession per se. Harmon, 104 N.J. at 199 (citing
State v. Green,
62 N.J. 547, 555-56 (1973)).
A jury is not qualified to say without guidance which
purposes for possessing a weapon are unlawful and which are not.
Therefore, a jury instruction on a charge of possession of a
weapon for an unlawful purpose must include an identification of
the unlawful purpose or purposes suggested by the evidence and an
instruction that the jury "may not convict based on their own
notion of the unlawfulness of some other undescribed purpose."
State v. Jenkins,
234 N.J. Super. 311, 316 (App. Div. 1989). In
addition, the trial judge should explain to the jury that the
criminal purpose or state of mind may exist at whatever time the
State claims that the possessory offense took place, and relate
the specific unlawful purpose charge to the facts of the case.
Harmon, supra, 104 N.J. at 210.
The Appellate Division reasoned:
[D]efendant's conscious objective in possessing the glass was drinking, not hitting. He cannot be found guilty of possession with an unlawful purpose for the momentary flash between the possession of the glass for a lawful purpose and the alleged assault. As stated in Harmon, "[w]e are thus compelled by the fundamental precepts of the Code to interpret section 39-4 as applying only when an individual arms himself with the actual purpose of using the weapon against another in a criminal manner." Harmon, supra, 104 N.J. at 204. There is no proof that defendant armed himself to assault Gollar; rather, the proofs indicate he hit her with what happened to be lawfully in his hand. The conviction must be reversed and defendant must be acquitted on this count.
The State argues that this interpretation will, in effect, grant immunity to criminals who employ weapons in the commission of assaults. It will rarely be possible for the State to prove that the original purpose in possessing a weapon was unlawful. For example, one licensed to possess a gun lawfully would be immune from prosecution if the possessor had a change of mind and
decided to use the gun to commit a crime. The original purpose
was lawful. In the case of everyday objects, the State would be
effectively precluded from prosecuting, for possession for an
unlawful purpose, those who assault with such weapons because the
original use of an innocuous everyday object can always be deemed
lawful.
Harmon did not hold that the State was required to prove
that the original purpose for possessing a weapon was unlawful.
It overreads Harmon to conclude that a person cannot be convicted
of possession of a weapon for an unlawful purpose if the original
purpose for possessing an object was lawful. We recently held,
"[t]he State is not required to prove a defendant's original
purpose" for possessing a weapon for a 39-4a conviction. State
v. Diaz,
144 N.J. 628, 636 (1996). The same principle applies to
convictions under 39-4d. Harmon posed a subtle and complex
problem. The defendant had anticipatorily armed himself with a
BB gun (a handgun that required a permit) in the event that he
was attacked by another. The State argued that Harmon could not
argue that his purpose to carry the gun was lawful if the
possession itself was unlawful. We described the issue as a
"legal riddle." Harmon, supra, 104 N.J. at 196. It was in the
context of rebutting the State's argument that we stated that
N.J.S.A. 2C:39-4a applies only when an individual is armed for
the actual purpose of using the weapon against another in a
criminal manner. Harmon asserted that he possessed the BB gun
without intending to do harm to another. We held that he was
entitled to present that defense to the jury. We could not
"agree with the proposition that the jury can be forbidden to
consider the defendant's purpose, after a certain continuum of
time has passed, because [the defendant] originally took
possession of the weapon before the danger became imminent. The
criminal purpose or state of mind must exist at whatever time the
State claims that the possessory offense took place." 104 N.J.
at 210 (emphasis added). We reiterated the point for emphasis:
if the accused's honest purpose in possessing
and in continuing to possess a weapon is to
use it for sport, precaution, or in a manner
intended to cause no harm to another, then
[the accused] may present that defense to the
jury to counter the charge that [the accused]
is guilty of possession for an unlawful
purpose, principles of justifiable use
notwithstanding.
In this case, Villar's original purpose in possessing the stein was lawful. Like Harmon, he may insist that his purpose was always lawful, but also, like Harmon, he may not escape responsibility if his purpose becomes unlawful. See Harmon, supra, 104 N.J. at 209-10 (stating that the defendant could not employ deadly force in self defense unless reasonably necessary to protect against threat of death or serious bodily injury, but could be guilty of possessing a weapon for unlawful purpose if the defendant used deadly force in absence of such threat). To explain the concepts, we used the example of a homeowner who kept a golf club or bat under a bed in order to be able to repel an intruder. We asked rhetorically: "Would we ever deny a
homeowner who kept a golf club or baseball bat under a bed to
repel an intruder the opportunity to say that [the homeowner]
never intended to use the potentially lethal weapon to harm
anyone unless forced to by circumstances?" Id. at 210. The
answer is obviously no. Conversely, if that homeowner picked up
the bat (or another household object, like a carving knife) for
the purpose of assaulting a spouse, the homeowner should be
prosecuted for the possession of the previously benign object for
the unlawful purpose of inflicting bodily injury on another.
So too, when a bar patron turns from imbiber to assaulter,
the patron is not free to obtain a weapon in order to inflict
greater harm. It is for a jury to decide if the patron
consciously possessed the weapon for the purpose of inflicting
injury upon another. (We are certain that there would be little
difficulty with the analysis if a beer bottle were broken in a
"momentary flash" and were employed for the unlawful purpose of
inflicting injury on another.) Offenders are not overpenalized
in such circumstances. The possession charge will often merge
with the completed offense. Diaz, supra,
144 N.J. 628
(affirming merger of possession for unlawful purpose with
passion/provocation manslaughter); State v. Best,
70 N.J. 56
(1976).
The beer stein was initially used for its lawful purpose
(drinking) and was an otherwise innocuous everyday object. Yet
when defendant used it to strike the victim in the face, a jury
could infer that his purpose was to commit an unlawful act with
the stein. See Petties, supra,
139 N.J. 310. The State alleged
that defendant intended to use the stein for the unlawful purpose
in the moments before actually striking Gollar. The jury could
have found that when defendant made the decision to use the stein
to hit the victim, he no longer possessed the stein lawfully and
had picked up the stein with the actual intent to use it for the
unlawful purpose of striking Gollar.
A jury could thus find that the State established all four
elements of possession of a weapon for an unlawful purpose under
the Harmon test. (1) Once the beer stein ceased being used for a
lawful purpose, because of its size and weight, it became a
weapon capable of inflicting bodily injury. (2) Gollar and her
companion testified that defendant picked up the stein to strike
Gollar in the face, thus establishing his control over the
object. (3) The jury could have found that Villar's purpose or
conscious object was to strike Gollar. (4) The use of a beer
stein to commit an assault on another is an act proscribed by
law.
The remaining issues on appeal are (1) whether the Appellate Division's reversal of the second-degree aggravated assault conviction because of improper jury instructions was correct; (2) whether the Appellate Division should thereafter have remanded the second-degree aggravated assault count for retrial; and (3)
whether double jeopardy protections preclude retrial of the
second-degree aggravated assault count.
Count One of the indictment charged that defendant
attempt[ed] to cause or did purposely or
knowingly cause or under circumstances
manifesting extreme indifference to the value
of human life, did recklessly cause serious
bodily injury to Nancy L. Gollar.
The jury found defendant guilty of recklessly causing serious
bodily injury under circumstances manifesting extreme
indifference to the value of human life, constituting second-degree aggravated assault.
Count Two of the indictment charged defendant with third-degree aggravated assault, alleging that he
purposely or knowingly cause[d] bodily injury
to Nancy L. Gollar with a deadly weapon.
The jury acquitted defendant of third-degree aggravated assault,
but found defendant guilty of negligently causing bodily injury
with a deadly weapon, which was charged as a lesser-included
offense of third-degree aggravated assault.
Defendant's primary argument before the Appellate Division
was that it was inconsistent for the jury to find as a fact under
Count One that he was reckless under circumstances manifesting
extreme indifference to the value of human life and also to find
as a fact under Count Two that he was negligent in causing bodily
injury with a weapon. He argued that a single act established by
a single set of facts should not give rise to two levels of
culpability. Defendant also argued that it was inconsistent for
the jury to find that the injuries constituted serious bodily
injury as to Count One and only bodily injury as to Count Two.See footnote 3
(The use of the deadly weapon does not in itself make the injury
inherently serious. Sloane, supra, 111 N.J. at 298.)
Defendant further asserted that the only culpability
alternative given to the jury on Count One was that of simple
assault under 2C:12-1a(1), the purposeful, knowing, or reckless
causing of bodily injury to another. Defendant argued that he
was entitled to an instruction under Count One on the lesser-included offense of purposely or knowingly causing any form of
bodily injury to the victim, whether serious or not, with a
deadly weapon (third-degree aggravated assault). N.J.S.A. 2C:12-1b(2).
The Appellate Division, for purposes of its analysis, set
forth the following ladder of liability under N.J.S.A. 2C:12 for
the offenses charged against defendant:
[DEGREE OF OFFENSE/ [STATE OF MIND] [ATTENDANT
INJURY] CIRCUMSTANCE]
Second Degree [-1b(1)]
serious bodily that was knowing
injury or purposeful [or
reckless manifesting
extreme indifference
to the value of human
life]
Third Degree [-1b(2)]
bodily injury that was knowing with a deadly
or purposeful weapon
Fourth Degree [-1b(3)]
bodily injury that was reckless with a deadly
weapon
Disorderly person [-1a(1)]
[Simple Assault]
bodily injury that was purposeful,
knowing or reckless
[-1a(2)]
bodily injury that was negligent with a deadly
weapon
The court reasoned that when a defendant is indicted for
second-degree aggravated assault and the proofs show commission
of the assault with a deadly weapon and the evidence requires
that other lesser-included assault charges be given, the court
must instruct the jury that third-degree aggravated assault with
a deadly weapon is a lesser-included offense of second-degree
aggravated assault, whether or not committed with a weapon. Id.
at 330. Third-degree aggravated assault has as its lesser-included offense fourth-degree assault with a deadly weapon,
which in turn has as its lesser-included offense negligent simple
assault with a deadly weapon. Ibid. This sequence is necessary
because these offenses "[differ] from the offense charged only in
the respect that a less serious injury or risk of injury to the
same person . . . or a lesser kind of culpability suffices to
establish its commission." N.J.S.A. 2C:1-8d(3).
The State does not disagree that third-degree aggravated
assault with a deadly weapon is a lesser-included offense
of second-degree aggravated assault, not involving the use of a
weapon. The disagreement concerns the consequences of that
conclusion.See footnote 4 The Appellate Division reasoned that because the
jury acquitted defendant on the third-degree charge (knowing or
purposeful inflicting of bodily injury with a deadly weapon),
this lesser-included offense cannot be charged at retrial, thus
hindering a fair retrial of the greater offense. 292 N.J. Super.
at 332.
The Appellate Division found that the true difficulty lay
with the jury instructions. Id. at 326. It concluded that but
for the erroneous jury instructions on assault, the jury would
have returned a verdict of guilty solely on the lesser-included
offense of negligent simple assault with a deadly weapon. The
Appellate Division believed it to be in the interest of justice
that there be no retrial of the first count of second-degree
aggravated assault and that judgment be entered solely on the
negligent simple assault with a deadly weapon.
We disagree that the evidence supports only a verdict of
negligent simple assault with a deadly weapon. The differing
accounts of the incident can sustain a verdict of aggravated
assault. According to Gollar and her companion, both were
looking at defendant when he picked up the stein and, completely
unprovoked, smashed it directly and with full force in the face
of Gollar. On the basis of this testimony, a properly charged
jury could find that defendant's conduct was knowing or
purposeful or reckless under circumstances manifesting extreme
indifference to the value of human life. A properly charged jury
could have found that the victim's injuries constituted serious
bodily injury as opposed to mere bodily injury. We realize that,
because of the constitutional prohibition against double
jeopardy, defendant cannot be recharged with or convicted of the
third-degree aggravated assault.See footnote 5 However, at defendant's
request, the jury could be charged with that offense as a lesser-included offense of second-degree aggravated assault and should
the jury return a verdict of guilt on that count, defendant would
stand acquitted. See State v. Short,
131 N.J. 47 (1993)
(explaining how to charge lesser-included offenses of which a
defendant may not be convicted because of statute of
limitations). The parties have not raised any question
concerning the disposition on remand of the disorderly-persons
conviction. Presumably the same procedure could be followed,
except that the disorderly person conviction would remain
standing.
The verdicts on the three Counts reflected an attempt by the
jury to sort out the charges rather than a fatal inconsistency.
On Count One, defendant may indeed have been recklessly
indifferent to the value of human life in striking a forceful
blow at an unsuspecting woman patron in a tavern quite aside from
the use of any weapon. The jury may have found that Villar's use
of the weapon to inflict injury was culpable but not to the same
degree of culpability as his recklessness in injuring her.
Finally, the jury may have found that Villar's unlawful purpose
to use the beer stein was to strike a blow (an illegal act) but
not to cause bodily injury.
The verdicts are not inconsistent because the elements of
each of the charges differ. The jury seemed to work its way
carefully through the complicated pattern of mental states in the
law of assault. In point of fact, none of the jury findings on
the charges against defendant negates an essential element of any
other charge. In addition, the jury may have credited
defendant's intoxication defense as to the charges of knowing or
purposeful intent to inflict serious bodily injury, see N.J.S.A.
2C:2-8 (allowing evidence of intoxication to negate such states
of mind), but not to negate the intent to use the stein to commit
a minor battery. The trial court instructed the jury that it
could take intoxication into account "in determining whether
[defendant] . . . was incapable of acting either purposely or
knowingly." We realize that these convictions arising from a
brief episode on a New Year's Eve may have a devastating effect
on defendant's life. Yet, we also realize that a jury could find
that the episode had a devastating effect on the victim's life.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Law Division for retrial of the second-degree aggravated assault count. Consistent with this opinion
and at the request of defendant, the trial court shall charge
third-degree aggravated assault, fourth-degree aggravated
assault, and negligent simple assault as lesser-included offenses
of second-degree assault. We reinstate the conviction on third-degree possession of a weapon for an unlawful purpose.
Sentencing shall await any further disposition of the case.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN'S opinion. JUSTICE HANDLER did not participate.
We, the jury, find the defendant, Juan Villar
Count 1 (A) GUILTY NOT GUILTY X
of the crime of Aggravated Assault by purposely attempting to
cause serious bodily injury to Nancy Gollar on January 1, 1993.
Count 1 (B) GUILTY________ NOT GUILTY X
of the crime of Aggravated Assault by causing serious bodily
injury to Nancy Gollar on January 1, 1993, purposely or knowingly
Count 1 (C) GUILTY X NOT GUILTY________
of the crime of Aggravated Assault by causing serious bodily
injury to Nancy Gollar on January 1, 1993, recklessly under
circumstances manifesting extreme indifference to the value of
human life.
Only if the answers to all of the above are NOT GUILTY
will you consider whether or not the defendant is
GUILTY________ NOT GUILTY________
of the offense of Simple Assault by attempting to cause
or by causing bodily injury to Nancy Gollar on January
1, 1993, purposely, knowing or recklessly
Count 2 GUILTY NOT GUILTY X
of the crime of Aggravated Assault by causing bodily
injury to Nancy Gollar on January 1, 1993, purposely or
knowingly, with a deadly weapon
Only if the answer to Count 2 above is NOT GUILTY
will you consider whether or not the defendant is
GUILTY X NOT GUILTY________
of the offense of Simple Assault by negligently causing
bodily injury to Nancy Gollar on January 1, 1993, with
a deadly weapon
Count 3 GUILTY X NOT GUILTY________
of the crime of knowingly possessing a beer glass on January 1,
1993, with a purpose to use it unlawfully against the person of
another
NO. A-123 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JUAN CARLOS VILLAR,
Defendant-Respondent.
DECIDED July 17, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1The Criminal Code provides the following states of mind for aggravated assault. Second-degree aggravated assault is defined as causing or attempting to cause, "purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly," serious bodily injury. N.J.S.A. 2C:12-1b(1). Third-degree aggravated assault is defined as "[a]ttempt[ing] to cause or purposely or knowingly caus[ing] bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1b(2). A new third-degree crime of causing or attempting to cause "significant bodily injury" was added in 1995. N.J.S.A. 2C:12-1b(7). Footnote: 2There are three types of simple assault. The type at issue here is defined as "[n]egligently caus[ing] bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1a(2). Simple assault is a third-degree crime if bodily injury results and the victim is a member of a particular class, such as a law enforcement officer. N.J.S.A. 2C:12-1b(5). Footnote: 3The trial court's instructions on the seriousness of the injury generally tracked those of the Model Jury Charges. The charges reflect exceedingly subtle gradations. "Serious bodily injury" the court defined as injury "which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." See Model Jury Charges (Criminal) § 2C:12-1b(1) (June 20, 1996). The court defined "bodily injury" as "physical pain, illness or any impairment of the physical condition." See Model Jury Charges (Criminal) § 2C:12-1b(2) (Oct. 17, 1988). "Significant bodily injury" (not charged here) is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." See Model Jury Charges (Criminal) § 2C:12-1b(7) (June 20, 1996). Footnote: 4In future cases involving assaults with weapons, courts should construct with counsel a sequence of the offenses to be charged. Because of the subtle factual complexities these cases present, when such a charge conference has been held, absent objection to the proposed charge, reviewing courts should hesitate to reverse convictions because of the charge. When, as here, lesser-includeds were charged as separate offenses, any error in not explaining lesser-included offenses to the jury is neutralized. Footnote: 5The State does not dispute that it may not retry the charges of knowing or purposeful infliction of serious bodily injury (third-degree aggravated assault).