State v. Rolon , 199 N.J. 575 ( 2009 )

PER CURIAM.

This appeal centers on the meaning of the phrase “armed with ... a deadly weapon” as used in the grading provision of the robbery statute, which elevates the crime from second to first degree. N.J.S.A 2C:15-l(b). Defendant stated that she took money from the victim’s purse, and that a folding knife fell out of her pocket during a subsequent struggle with the victim. She maintained that she never used or intended to use the knife as a weapon. During deliberations, responding to a question from the jury, the trial judge said that defendant’s “intent with respect to the object [ (the folding knife) ] is irrelevant.” The Appellate Division reversed and remanded, concluding that in the circumstances of this case, that explanation, which eliminated any consideration of defendant’s intent, was incorrect and irremediably confusing to the jury. We agree and affirm.

I.

On September 12, 2005, at approximately 8:30 a.m., defendant Maribel Rolon entered Kalamio, a restaurant in Elizabeth, New Jersey. At the time, Anna Padilla, the owner of the restaurant, and Maria Ramirez, a restaurant employee, were working in the kitchen. Defendant testified that she walked around the counter area and noticed an open cabinet that held a purse, and that she looked into the purse for money. While she was doing so, Padilla emerged from the kitchen and observed her. A struggle ensued.

The nature of that struggle is disputed. According to Padilla, she saw defendant looking into her poeketbook and holding money in her hand. Defendant attempted to flee and a fracas occurred. Padilla testified that during the struggle defendant pulled her necklace off. Padilla then grabbed defendant by her wrists. Defendant dropped the necklace and money, took out a knife, and threw a napkin holder, which hit Padilla on the head. At some point, defendant either dropped the knife, or Padilla knocked the knife out of defendant’s hands. As defendant broke free from Padilla’s grasp, a customer entered the restaurant and grabbed defendant by the hands.

Defendant’s version of the struggle differed distinctly from Padilla’s. Acknowledging that she took money from Padilla’s purse, defendant testified that Padilla grabbed her. Defendant said she told Padilla to let her go, but did not kick or punch her. She also denied taking Padilla’s necklace. Further, defendant asserted that she never pulled a knife on Padilla, but admitted that she had a knife in the front pocket of her jeans, which fell out during the struggle. She stated that the blade was not open before or at the time the knife hit the floor. Defendant testified that she never held the knife in her hand, never brandished the knife, and never threatened Padilla with the knife. She escaped from Padilla’s grasp, but a third person detained her at the door.

Ramirez testified that she had been working in the kitchen, observed defendant and Padilla fighting, and heard Padilla yell to “call the police, that the woman had a knife.” Although Ramirez saw defendant holding Padilla’s necklace, she* did not observe defendant with a knife in her hand.

In response to Ramirez’s call, Detective Clarence Cunningham arrived at the scene and apprehended defendant as she was running out of the restaurant. Cunningham testified that the “restaurant was in disarray, ... there was money on the floor, the owner’s pocketbook was thrown on the floor.” Cunningham recovered a folding knife; the blade was open when he discovered it.

Defendant was indicted for first-degree robbery by knowingly using force or knowingly inflicting bodily injury, while armed with and/or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-l(a)(l), (b) (count one); first-degree robbery by knowingly threatening immediate bodily injury or purposely putting the victim in fear of immediate bodily injury, while aimed with and/or threatening the immediate use of a deadly weapon, N.J.S.A. 2C:15-l(a)(2), (b) (count two); second-degree aggravated assault by attempting to cause serious bodily injury, N.J.S.A. 2C:12-l(b)(l) (count three); third-degree aggravated assault by attempting to cause bodily injury with a deadly weapon, N.J.S.A. 2C:12-l(b)(2) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six). Defendant was indicted separately for fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). A trial ensued at which the witnesses testified to the outlined facts.

At the close of the trial, the trial judge charged the jury as follows:

Now a section of our statute provides that robbery is a crime of the second degree, except that it becomes a crime and is a crime of the first degree if the robber is armed with or uses or threatens immediate use of a deadly weapon.

Now the words armed with is distinguishable from mere possession. Armed with means possessing an implement in a way that makes it available for use as a weapon.

So in this case, the defendant—it’s alleged the defendant was armed with [a] knife, a deadly weapon in the course—while in the course of committing the robbery. In order for you to determine the answer to the question, in this question, you must understand the meaning of the term deadly weapon.

A deadly weapon is any firearm or other weapon, device, instrument, material or substance which in the manner it is used ... or is intended to be used, is known to be capable of producing serious bodily injury or which in the manner it is fashioned would lead the victim to reasonably believe it could be capable of producing death or serious bodily injury.

In this case the State alleges that the defendant was armed with a knife and that is an item that was produced into evidence. You must determine if this object qualifies as a deadly weapon and if the State has proven beyond a reasonable doubt that the defendant was in the course of committing a robbery.

During deliberations, the jury had a number of questions, one of which was: “Definition of armed?” Over defendant’s objection, the judge answered the question as follows:

I have some good news and bad news L—] the code does not define the word aimed. However, the cases distinguish armed from mere possession. It’s different than mere possession and the case law seems to indicate that being armed means possessing an implement in a way that makes it available for use as a weapon. The defendant’s intent with respect to the object is irrelevant. So it’s something more than possession, it means possessing an implement in a way that makes it available for use as a weapon. I hope that helps you.

The jury convicted defendant of first-degree robbery, contrary to N.J.S.A. 2C:15-l(a)(l), and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d), and acquitted her on all other counts of the indictment. In addition, defendant pleaded guilty to the single count of the separate indictment of certain persons not to have weapons, contrary to N.J.S.A 2C:39-7(a). She was sentenced to an aggregate custodial term of twelve years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed, arguing, among other things, that the trial judge erred in charging the jury that her intent with respect to the use of a weapon was irrelevant, and that the inconsistent verdicts demonstrated that the jury was misled by the trial judge’s erroneous instructions on first-degree robbery.

The Appellate Division agreed, concluding that the trial “court’s response to a request from the jury for a definition of ‘armed’ was fatally defective.” State v. Rolon, 400 N.J.Super. 608, 611, 948 A.2d 735 (App.Div.2008). The panel examined the robbery cases of State v. Riley, 306 N.J.Super. 141, 703 A.2d 347 (App.Div.1997), and State v. Brown, 325 N.J.Super. 447, 739 A.2d 975 (App.Div. 1999), certif. denied, 163 N.J. 76, 747 A.2d 285 (2000), and noted that they

stand for the proposition that in a robbery case, where the potential weapon is not per se a deadly weapon, like a firearm, a defendant cannot be considered to have been “armed with a deadly weapon” unless he had immediate access to the potential weapon as well as an intent to use it in a way that is “capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.”

[Rolon, supra, 400 N.J.Super. at 616, 948 A.2d 735 (citing N.J.S.A 2C:ll-l(c)).]

The panel therefore concluded that the instruction was incorrect, because it told the jury that “it could convict defendant of first-degree robbery even if it believed defendant never actually used, threatened to use, or intended to use the knife.” Id. at 617, 747 A.2d 285. Accordingly, the panel reversed defendant’s first-degree robbery conviction and remanded for a new trial. Ibid. We granted the State’s petition for certification. 196 N.J. 599, 960 A.2d 394 (2008).

II.

The State argues, in essence, that defendant’s folding knife was a deadly weapon because it had the capacity to cause death or serious bodily injury and was accessible to defendant during the theft, thus satisfying the “armed with a deadly weapon” standard. According to the State, defendant’s intent was irrelevant.

Defendant counters that in a case in which the item possessed has legitimate as well as illegitimate uses, “armed with a deadly weapon” requires that a defendant have both immediate access to the item and the intent to use it as a deadly weapon, because the grading provision, N.J.S.A. 2C:15-l(b), and the definition of “deadly weapon,” N.J.S.A. 2C:ll-l(c), must be read together. Defendant concedes that she “could be considered armed” because she had a folding knife accessible to her in her pocket, but asserts that she was not “armed with a deadly weapon” because she did not have the intent to use the knife as such.

III.

We turn first to the statute. Robbery is defined in the Code of Criminal Justice (“Code”) as follows:

A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase “in the course of committing a theft” if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-l(a).]

The grading provision of the robbery statute states:

Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly tueapon.

[N.J.S.A. 2C:lo-l(b) (emphasis added).]

“Armed with” is not defined in the Code, but case law establishes that it means possession of, and immediate access to, the deadly weapon. See Brown, supra, 325 N.J.Super. at 454, 739 A.2d 975 (noting evidence that weapon was immediately available to defendant during robbery establishes that defendant was armed); State v. Merritt, 247 N.J.Super. 425, 430, 589 A.2d 648 (App.Div.) (“armed” means possession and immediate access to weapon), certif. denied, 126 N.J. 336, 598 A.2d 893 (1991).

“Deadly weapon,” in turn, is defined as

any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used err is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury!.]

[N.J.S.A 2C:11—1(e) (emphasis added).]

“‘Serious bodily injury* means bodily 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[.]” N.J.S.A 2C:ll-l(b).

We confine our analysis to the underscored portion of N.J.S.A. 2C:15-l(b) because that is the crux of the interpretative issue before us. Defendant concedes that she “could be considered ‘armed’ ” with a folding knife but contends that that knife was not a “deadly weapon” because she did not use it or intend to use it as such. The State maintains that defendant was “armed with a deadly weapon” because she possessed a knife that had the capacity to cause death or serious bodily injury and that defendant’s intent was irrelevant. In determining the meaning to be ascribed to that language, we look first to the words chosen by the Legislature because that is the most “direct path” toward gleaning legislative intent. State v. Smith, 197 N.J. 325, 332, 963 A.2d 281 (2009). In doing so, we examine the plain language of the statute and accord to the words them ordinary meaning. DiProspero v. Penn, 183 N.J. 477,492, 874 A.2d 1039 (2005).

In defining the term “deadly weapon,” the Legislature established two distinct categories. The first consists solely of firearms, which the drafters specifically declared to meet the definition of “deadly weapon.” N.J.S.A 2C:ll-l(c). The second is made up of any “other weapon, device, instrument, material or substance ... which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.” Ibid. That category potentially includes all material items that are not firearms.

Under the statute, the “deadly weapon” element of “armed with a deadly weapon” is automatically satisfied if the weapon is a firearm. Contrariwise, if the weapon is not a firearm, but an object with legitimate uses, for example a paperweight or a pair of scissors, its use or intended use will determine whether it meets the deadly weapon standard. Indeed, the dichotomy that we have described has been recognized in the case law that has developed around the grading provisions of the robbery statutes. Thus, we turn to that ease law.

IV.

In State v. Riley, supra, the Appellate Division addressed the “armed with a deadly weapon” language in a robbery case. 306 N.J.Super. at 146-48, 703 A.2d 347. There, the defendant knocked a victim down and took his money. Id. at 144-45, 703 A.2d 347. When the defendant was apprehended, he had a folding knife in his pocket. Id. at 145, 703 A.2d 347. The question was whether he was “armed with a deadly weapon.” Id. at 145-46, 703 A.2d 347. In resolving that issue, the court recognized the two discrete categories established by N.J.S.A. 2C:ll-l(c): (1) firearms, and (2) “every other material object that can be used or intended to be used in such a way as to cause death or serious bodily injury.” Id. at 146, 703 A.2d 347. Of the latter category, the panel observed that there is

the class of all those objects having a wide variety of lawful uses but which may take on the character of a deadly weapon because they are both capable of inflicting death or serious bodily injury and have in fact been so used or are intended to be so used or are so fashioned to lead the victim of a crime to believe they can be so used. Thus, the character of this class of objects as deadly weapons is, in every case, entirely circumstantial—that is, did a particular defendant possess a particular object at a particular time and in a particular situation with the intention of using it as a weapon. These distinctions and definitions have, moreover, been recognized as integral to the structure of the Code’s approach to weapon crimes. See, e.g., State v. Kelly, 118 N.J. 370, 571 A.2d 1286 (1990); State v. Wright, 96 N.J. 170, 475 A.2d 38 (1984); State v. Lee, 96 N.J. 156, 475 A.2d 31 (1984); State v. Blaine, 221 N.J.Super. 66, 533 A.2d 980 (App.Div.1987).

[Id. at 147-48, 703 A.2d 347.]

Thus, under Riley, the possession and accessibility of a firearm vaults the statutory threshold with nothing more; however, in the case of objects with both legitimate and illegitimate purposes, the use of or intent to use the item is pivotal to the determination of deadliness. Applying that standard, the court in Riley ruled that the defendant could not be convicted of first-degree robbery (while armed with a deadly weapon) because there was no evidence that he used or intended to use the knife against the victim. Id. at 149, 703 A.2d 347.

The rationale of Riley was adopted by the Appellate Division in Brown, supra, where the defendant had a kitchen knife in his pocket during the course of a robbery, and there was no evidence that he intended to use it as a weapon. 325 N.J.Super. at 450-51, 454, 739 A.2d 975. There, the court stated;

As in Riley, the knife was neither held by defendant nor seen by the victim. The only evidence was that it was immediately available to defendant during the robbery. While that establishes that defendant was armed, State v. Merritt, [supra, 247 N.J.Super. at 429-30, 589 A.2d 648], it is not sufficient evidence that the weapon was a “deadly weapon” as defined by N.J.S.A. 2C:ll-lc.

[ 325 N.J.Super. at 454, 739 A.2d 975. ]

That parsing of the statute also finds support in our reasoning in possessory weapons cases. In Lee, supra, for example, we observed that “[sjome objects that may be used as weapons also have more innocent purposes.” 96 N.J. at 161, 475 A.2d 31. Likewise, the Appellate Division noted in Blaine, supra, that, “where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to criminal liability is entirely dependent on the circumstances attending the possession.” 221 N.J.Super. at 70, 533 A.2d 980.

We think the Appellate Division properly adopted the approach of Riley and Brown. Those cases, which were decided under the robbery statute, stand for the proposition that, where the potential weapon is not a firearm, a defendant cannot be considered to have been “armed with a deadly weapon” unless he had immediate access to the potential weapon and an intent to use it in a way that is “capable of producing death or serious bodily injury.” N.J.S.A. 2C:ll-l(c) (defining deadly weapon).

We are unpersuaded by the State’s reliance on Merritt, supra, 247 N.J.Super. at 429-30, 589 A.2d 648, and State v. Clark, 352 N.J.Super. 130, 799 A.2d 679 (App.Div.), certif. denied, 174 N.J. 545, 810 A.2d 65 (2002),¹ cases that were decided under an entirely different statutory scheme, N.J.S.A. 2C:18-2. We likewise reject the State’s argument that “armed with a deadly weapon” requires proof only that a defendant has possession of the weapon in a manner which makes it readily available for use and that intent has no relevance to that analysis. The flaw in that approach is that it focuses solely on “armed with” and omits consideration of the definition of “deadly weapon.” Because an armed robbery conviction is dependent upon proof that a defendant was “armed with a deadly weapon” and because the determination of whether an equivocal item is in fact a “deadly weapon” depends upon how the defendant used or intended to use it, the defendant’s intent regarding the item cannot be “irrelevant.”²

V.

That brings us to the charge in this case in which the issue was whether defendant was armed with a deadly weapon. The resolution of that issue required the jury to determine (1) whether defendant’s knife was a deadly weapon, and (2) whether she was armed with it. Because the knife was not per se a deadly weapon, the jury had to assess whether defendant used it or intended to use it as such. When the judge answered the question “Definition of armed?” by saying “armed means possessing an implement in a way that makes it available for use as a weapon,” he was correct. However, when he added, “[t]he defendant’s intent with respect to the object is irrelevant,” he misled the jury by permitting it to convict defendant of first-degree robbery even if it believed she never actually used or intended to use the knife and that, as she claimed, it simply fell out of her pocket during the struggle.

If the jury believed defendant used or intended to use the knife against the victim, the definition of deadly weapon was satisfied. If, on the other hand, the jury believed defendant’s version of the events, that is, that she never used or intended to use the closed folding knife that simply dropped out of her pocket onto the floor during the scuffle, the definition of deadly weapon was not met. The jury had to understand that distinction with respect to which defendant’s intent was critical. As in all eases, defendant’s intent was to be ascertained by the jury based upon what she said and did and upon all the circumstances surrounding her interaction with the victim. See, e.g., Riley, supra, 306 N.J.Super. at 147, 703 A.2d 347 (noting that character of class of objects as deadly weapons is entirely circumstantial). In eliminating the “intent” issue, the judge precluded a proper evaluation of the evidence, and erred in a way that requires our intervention. Consequently, defendant’s first-degree robbery conviction must be reversed and remanded for a new trial. See State v. Lopez, 187 N.J. 91, 101, 900 A.2d 779 (2006) (“ ‘[Ejrroneous instructions on material issues are presumed to be reversible error[.]’” (quoting State v. Marshall, 173 N.J. 343, 359, 801 A.2d 1142 (2002))).

VI.

The judgment of the Appellate Division is affirmed.

1 Those cases involve the burglary statute, N.J.S.A. 2C:18-2, which is not before us. We do not decide here whether our reasoning regarding the robbery statute is applicable in the burglary setting.

2 Even if we viewed the statute as ambiguous, based on the State's interpretation, the rule of lenity would require that the statute be interpreted in defendant's favor with the exact result we have reached here. State v. D.A., 191 N.J. 158, 164, 923 A.2d 217 (2007).