STATE OF NEW JERSEY VS. CARL SODEN (80-03-0920, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1819-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARL SODEN,
Defendant-Appellant.
_______________________
Submitted March 8, 2021 – Decided May 27, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 80-03-
0920.
Carl Soden, appellant pro se.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Carey J. Huff,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Carl Soden appeals from an August 27, 2019 order denying his
motion to correct an illegal sentence. His appeal stems from his fourth post-
conviction challenge to his aggregate sentence of one hundred years with fifty
years of parole ineligibility for various offenses, including kidnapping, weapons
possession, and multiple aggravated sexual assaults.
We previously affirmed defendant's sentence on three occasions: on direct
appeal in 1983, see State v. Soden, A-904-81 (App. Div. Feb. 23, 1983), certif.
denied, 94 N.J. 514 (1983) (Soden I); on appeal from the denial of his petition
for post-conviction relief (PCR) in 1998, see State v. Soden, A-1197-96 (App.
Div. Oct. 23, 1998), cert. denied, 158 N.J. 72 (1999) (Soden II); and on appeal
from denial of his 2008 motion to correct an illegal sentence, see State v. Soden,
A-2327-08 (App. Div. Jan. 15, 2010) (Soden III). In all of these appeals,
defendant maintained that his sentence was illegal, albeit for different reasons
than he now argues.
In the present appeal, defendant specifically argues
POINT I
[THE] PCR JUDGE ERRED IN DECIDING THAT
THE LAW OF THE CASE DOCTRINE APPLIED TO
THE ISSUE OF MERGER IN DEFENDANT'S PCR.
POINT II
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[THE] PCR JUDGE ERRED IN FAILING TO MERGE
DEFENDANT'S BURGLARY CONVICTION INTO
THE FIRST[-]DEGREE AGGRAVATED SEXUAL
ASSAULT, [N.J.S.A.] 2C:14-2[(a)](3) CONVICTION.
POINT III
[THE] PCR JUDGE ERRED IN FAILING TO MERGE
DEFENDANT'S THIRD[-]DEGREE POSSESSION
OF A WEAPON (KNIFE) FOR AN UNLAWFUL
PURPOSE, [N.J.S.A.] 2C:39-4(d) CONVICTION
INTO THE FIRST[-]DEGREE AGGRAVATED
SEXUAL ASSAULT, [N.J.S.A.] 2C:14-2[(a)](4)
CONVICTION.
POINT IV
[THE] PCR JUDGE ERRED IN FAILING TO MERGE
DEFENDANT'S FOURTH[-]DEGREE UNLAWFUL
POSSESSION OF A WEAPON, (KNIFE) [N.J.S.A.]
2C:39-5(d) CONVICTION INTO THE SECOND[-]
DEGREE BURGLARY, [N.J.S.A.] 2C:18-2.
POINT V
[THE] PCR JUDGE ERRED IN NOT VACATING
MERGER COUNTS.
We are again unpersuaded by defendant's contention. We affirm the
denial of defendant's motion because, contrary to defendant's arguments, his
convictions for weapons offenses could not be merged in the manner defendant
suggests, as his crimes constituted separate offenses and required different
elements to be found before the jury could convict, and they were all supported
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by independent evidence in the record. Moreover, the properly merged counts
could not be unmerged so as to extinguish his conviction on those charges.
For purposes of the present appeal, we need not repeat in detail the facts
surrounding defendant's commission of the subject crimes, his trial, or his 1981
conviction, as they are set forth at length in our earlier opinion on direct appeal.
Soden I, slip op. at 1-3. We limit our recitation to defendant's sentencing and
the motion that led to the order under appeal.
In 1981, a jury convicted defendant of three counts of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), 2C:14-2(a)(4), 2C:14-
2(a)(6); and one count each of first-degree kidnapping, N.J.S.A. 2C:13-1(b),
2C:13-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3); third-
degree criminal restraint, N.J.S.A. 2C:13-2(a); second-degree burglary, N.J.S.A.
2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d).
At defendant's sentencing, the trial court judge merged the criminal
restraint conviction into the kidnapping conviction, the unlawful possession of
a weapon conviction was merged into the possession of a weapon for an
unlawful purpose conviction, and the aggravated assault conviction into the
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aggravated sexual assault convictions. During sentencing, the judge explained
that burglary did not merge with the aggravated sexual assault because the
legislature intended the two offenses to remain separate crimes and to punish
them separately.
Defendant was sentenced to the following: thirty years imprisonment with
fifteen years of parole ineligibility on the kidnapping conviction; ten years
imprisonment with five years of parole ineligibility for the burglary conviction;
five years imprisonment on the weapons conviction; and twenty years in prison
with ten years parole ineligibility on each of the three aggravated sexual
assaults. All sentences were ordered to run consecutive, except for the five-year
weapons sentence which was ordered to run concurrently. In total, defendant
was sentenced to 100 years with a fifty-year period of parole ineligibility.
In 2018, defendant filed his motion to correct an illegal sentence under
Rule 3:21-10(b)(5) and to correct a clerical error. In his pro se brief, he argued
that the trial court erred by: failing to merge his burglary conviction into his
first-degree aggravated sexual assault convictions; failing to merge his
possession of a weapon for an unlawful purpose conviction into his aggravated
sexual assault convictions; and failing to merge his unlawful possession of a
weapon conviction into the burglary conviction. He also argued that the trial
A-1819-19
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court failed to vacate the merged convictions. Finally, he argued that his
Judgement of Conviction (JOC) erroneously stated that he was convicted for a
fourth aggravated sexual assault and a remand was necessary to amend the JOC
to reflect it was for aggravated assault.
The motion judge considered the parties' oral arguments on August 2,
2019, and explained that he viewed the application "[i]n essence, [as] a matter
for post-conviction relief." Defendant's counsel argued that the law of the case
doctrine did not bar defendant's application because the previous appeals did not
address the specific merger issues defendant raised in this motion. As to
defendant's primary substantive argument—that the burglary conviction should
have merged with the aggravated sexual assault conviction—counsel argued that
the burglary raised the degree of the sexual assault from second-degree sexual
assault to aggravated sexual assault, and that the purpose of his illegal entry into
the home was to commit the sexual assault.
Next, counsel argued that defendant's weapon convictions should have
merged with the aggravated sexual assault conviction, "primarily for the same
legal reasons." She added that there was no special verdict sheet regarding that
charge, and where verdict is ambiguous, it should favor defendant, not the State.
Counsel briefly noted that defendant believed his second-degree burglary
A-1819-19
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conviction and the unlawful possession of a weapon conviction should be
merged under the same "legal authorities and premises cited previously." As to
defendant's JOC, counsel explained that the State conceded there was an error
with reporting his conviction for a fourth aggravated sexual assault and that error
needed to be corrected.
On August 27, 2019, the motion judge denied defendant's application,
placing his reasons on the record that day, except as to the error in the JOC,
which he agreed needed to be corrected. After reviewing the circumstances of
defendant's criminal acts,1 the judge explained that pursuant to Rule 3:21-
10(b)(5), a motion to correct a sentence may be filed at any time. He noted that
defendant's current motion to correct an illegal sentence was argued under Rule
3:21-10(b)(5) and his previous motion from 2008 argued that his sentence had
to be changed under Rule 3:21-10(b)(3). Despite this difference, the basis for
defendant's argument was the same—specifically that his sentence was illegal.
The motion judge then cited to State v. Reldan, 100 N.J. 187, 203-05
(1985), and explained the law of the case doctrine as "a discretionary principle
that when applied . . . requires that a decision of law made in [a] particular case
1
He explained that between 5:30 and 7:00 a.m. on January 1, 1981, defendant
entered the victim's home, and sexually assaulted through vaginal, oral, and anal
penetration, "using the knife to force [the victim] into performing these acts."
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be respected . . . by all other lower or equal courts during pendency of the
litigation." He added that the doctrine "avoids repetitious litigation of the same
issue by permitting a court to consider previously litigated issues settled for all
subsequent stages of the case." He further explained that the doctrine "should
be applied flexibly to serve the interest[s] of justice." To apply the doctrine, a
court must consider "relevant factors that bear on the pursuit of justice, and,
particularly, the search for the truth." Under these guiding principles and the
procedural history of the case, the motion judge concluded that the issue of
defendant's sentence had been fully litigated, the law of the case doctrine was
applicable, and the doctrine barred defendant's new claims.
Despite this conclusion, the motion judge also addressed the merger issues
raised by defendant, and explained that:
N.J.S.A. 2C:1-8, provides, in pertinent part, that,
"[w]hen the same conduct of a defendant may establish
commission of more than one offense, the defendant
may be prosecuted for each such offense." However, a
defendant may be prosecuted for multiple offenses
arising from the same conduct, except, if: (1) [o]ne
offense is included in the other; (2) [o]ne offense
consists only of a conspiracy or other form of
preparation to commit the other; (3) [i]nconsistent
findings of fact are required to establish the
commission of the offenses; or (4) [t]he offenses differ
only in that one is defined to prohibit a designated kind
of conduct generally and the other to prohibit a specific
instance of conduct.
A-1819-19
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As to defendant's first argument—that his burglary conviction should have
merged with his aggravated sexual assault conviction—the judge first explained
the statutory requirements to be guilty of aggravated sexual assault under
N.J.S.A. 2C:14-2. He then rejected defendant's argument because "[a] number
of facts could have elevated defendant's sexual assault conviction to a first[ -
]degree crime, including the burglary, the kidnapping, his use of a knife during
the commission of the sexual assault, [and] his threatening to use the knife for
his use of physical force." He added that defendant was found guilty under
N.J.S.A. 2C:14-2(a) 3, 4, and 6 and "[t]herefore, any of those factors would have
elevated his conviction."
The judge observed that defendant relied on State v. Ramos, 217 N.J.
Super. 530 (App. Div. 1987), for support that the burglary conviction should
have merged with the aggravated sexual assault conviction; but the judge found
State v. Adams, 227 N.J. Super. 51 (App. Div. 1988), more persuasive because
in Adams, the Appellate Division explained that if those counts merged, there
would be little deterrence to stop an individual from committing a sexual assault
during the commission of another crime—such as a kidnapping, robbery, or
burglary. He also explained that it was not necessary to prove the burglary in
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order to prove the first-degree sexual assault and therefore found that the
convictions did not merge.
As to defendant's second argument—that his convictions for sexual
assault and possession of a weapon for an unlawful purpose should have
merged—the judge, quoting State v. Diaz, 144 N.J. 628, 636 (1996), explained
that "merger is required 'when the only unlawful purpose in possessin g the
weapon is to use it to commit the substantive offense.'" In this case, "the jury
was not charged with what specific unlawful purpose . . . defendant had in mind
when committing the crime and no special verdict sheet was used. The jury was
therefore free to conclude that . . . defendant used the weapon for a number of
unlawful purposes." He highlighted that defendant used the knife for several
reasons during the commission of his offenses, including using the knife to
threaten the victim, to prevent her from resisting the sexual assault, to injure her,
and to kidnap her.
The motion judge also noted that the victim's daughter was inside the
home at the time of the offense and defendant could have used the weapon to
intimidate her. Consequently, "there was sufficient evidence before the jury for
them to conclude that . . . defendant had a broader purpose of possessing the
knife and only using it for the aggravated sexual assaults."
A-1819-19
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As to defendant's third argument—that the burglary conviction and
unlawful possession of a weapon charge should have merged—the judge
explained that generally, convictions for the unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) and convictions for possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) merge for the purposes of sentencing. He added
that defendant was convicted of burglary under two theories, "that he caused
injury to the victim and/or that he possessed a weapon" and that the jury could
have elevated the burglary charge based on either theory. Therefore, "the
possession conviction does not merge with the burglary conviction."
Additionally, as to defendant's fourth argument—that the sentencing
judge did not vacate the merged counts—the motion judge explained that "New
Jersey law is clear that merge[d] convictions are not extinguished." As to
defendant's final argument—that his JOC should be amended—the judge agreed
and determined that it would be corrected under Rule 1:13-1.
That same day, the motion judge issued an order reflecting his oral
decision. Defendant's corrected JOC was entered on August 8, 2019. This
appeal followed.
We begin by observing that we review de novo a trial court judge's
determination of the legality of a sentence. State v. Robinson, 217 N.J. 594, 604
A-1819-19
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(2014). The same standard applies to whether a judge properly merged a
defendant's convictions, see State v. Romero, 191 N.J. 59, 80 (2007), and
whether the law of the case doctrine was properly applied, see State v. K.P.S.,
221 N.J. 266, 276 (2015).
At the outset, we note our disagreement with the motion judge's
conclusion that the law of the case doctrine barred defendant's motion.
Defendant filed this motion under Rule 3:21-10(b)(5), which provides that "[a]
motion may be filed and an order may be entered at any time . . . correcting a
sentence not authorized by law including the Code of Criminal Justice . . . ."
"The failure to merge convictions results in an illegal sentence for which there
is no procedural time limit for correction" because merger implicates a
defendant's constitutional rights. Romero, 191 N.J. at 80.
Unless the merger issues had been previously determined, the law of the
case doctrine does not bar the issue being raised at any time. The doctrine is
"based upon the sound policy that when an issue is once litigated and decided
during the course of a particular case, that decision should be the end of the
matter." State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974). "The law-
of-the-case doctrine 'is a non-binding rule intended to prevent relitigation of a
previously resolved issue' in the same case." K.P.S., 221 N.J. at 276 (quoting
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Lombardi v. Masso, 207 N.J. 517, 538 (2011)). For example, it "may be applied
in a situation where one judge decides a pretrial motion to suppress, but another
judge conducts the trial. In such a case, the decision rendered at the pretrial
hearing may be said to be the 'law of the case' during the subsequent trial." Hale,
127 N.J. Super. at 411.
Importantly, "law of the case may bar a party from relitigating the same
issue during the pendency of the same case before a court of equal jurisdiction."
K.P.S., 221 N.J. at 277. The doctrine is "guided by the 'fundamental legal
principle . . . that once an issue has been fully and fairly litigated, it ordinarily
is not subject to relitigation between the same parties either in the same or in
subsequent litigation.'" Ibid. (omission in original) (quoting Morris Cnty. Fair
Hous. Council v. Boonton Twp., 209 N.J. Super. 393, 444 n.16 (Law Div.
1985)). The doctrine "should be applied flexibly to serve the interests of
justice." Reldan, 100 N.J. at 205. The doctrine must also "conform to the due
process requirements of our State Constitution." K.P.S., 221 N.J. at 280.
Here, although the parties dispute the scope of the "issue" that had been
previously litigated, and undeniably, defendant's sentence has been evaluated on
several grounds and has been upheld on those grounds, no court has previously
A-1819-19
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addressed the actual issues raised in this appeal—merger, which implicates
constitutional rights. See State v. Dillihay, 127 N.J. 42, 46 (1992).
Having noted our disagreement with the motion judge about the
applicability law of the case doctrine, we nonetheless agree with his ultimate
conclusions as to the merits of defendant's contentions about merger. The
concept of merger arises from the fundamental principle that a defendant may
not be punished for two offenses if he has only committed one. State v. Davis,
68 N.J. 69, 77 (1975); see also State v. Cole, 120 N.J. 321, 325-26 (1990); State
v. Frank, 445 N.J. Super. 98, 107-08 (App. Div. 2016) (explaining merger
implicates defendant's constitutional rights and prevents multiple punishments
for the same conduct). As already noted, the failure to merge convictions when
required results in an illegal sentence. Romero, 191 N.J. at 80.
Merger is addressed in N.J.S.A. 2C:1-8, which is based on the concept
that "'an accused [who] committed only one offense . . . cannot be punished as
if for two.'" State v. Tate, 216 N.J. 300, 302 (2013) (alteration and omission in
original) (quoting Davis, 68 N.J. at 77). "Convictions for lesser-included
offenses, offenses that are a necessary component of the commission of another
offense, or offenses that merely offer an alternative basis for punishing the same
criminal conduct will merge." Ibid. The statute provides for the merger of
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offenses to avoid impermissible multiple convictions for the same conduct and
sets forth a series of factors to guide a court in determining whether to bar
multiple convictions for conduct that constitutes more than one offense. In
particular, N.J.S.A. 2C:1-8(d) requires merger when one offense is established
by proof of the same or less than all the facts required to establish the
commission of another offense charged. See State v. Mirault, 92 N.J. 492, 502-
03 (1983).
To determine whether merger is appropriate, we apply a "flexible
standard." Diaz, 144 N.J. at 637 (citing Davis, 68 N.J. at 69); see also State v.
Miller, 237 N.J. 15, 32-33 (2019) (discussing Davis approach). "[W]e must first
determine whether the legislature has in fact undertaken to create separate
offenses." Davis, 68 N.J. at 77-78. After determining the legislature's intent,
the next step is to determine whether a defendant, facing separate charges, "can
of necessity be convicted of but one crime by application of one of the 'offense-
defining' tests for 'sameness.'" Id. at 81.
To resolve that question, "[a]s a practical matter [we may] employ a
certain flexibility of approach to the inquiry of whether separate offenses have
been established." Ibid. This approach
would entail analysis of the evidence in terms of,
among other things, the time and place of each
A-1819-19
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purported violation; whether the proof submitted as to
one count of the indictment would be a necessary
ingredient to a conviction under another count; whether
one act was an integral part of a larger scheme or
episode; the intent of the accused; and the
consequences of the criminal standards transgressed.
[Ibid.]
With these guiding principles in mind, we turn to defendant's contention
on appeal that he established the "only" factor that could have aggravated his
conviction for sexual assaults was the burglary so it should have been merged
with his convictions for aggravated sexual assault. He argues that Ramos
controls this case and the motion judge erred in ruling that it was unnecessary
to prove the burglary in order to prove the first-degree aggravated sexual assault.
We disagree.
In Adams, 227 N.J. Super. at 56-57, we departed from our earlier holding
in Ramos. In doing so, we relied on the Supreme Court's then recent holding in
State v. Miller, 108 N.J. 112, 116 (1987); and the Ramos opinion's failure to
address other controlling decisions. Adams, 227 N.J. Super. at 63 (discussing
State v. Mosch, 214 N.J. Super. 457, 465 (App. Div. 1986)).
We concluded in Adams that, as in the present case, the defendant's third-
degree burglary that was elevated to a second-degree offense because defendant
attempted to or caused harm to his victim, properly served as the basis for
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elevating the sexual assault the defendant also committed to an aggravated
sexual assault, "thus advancing it to a crime of the first[-]degree." 227 N.J.
Super. at 60. We observed that "under the indictment and based on the evidence
and the judge's instructions, the jury could have found attempted aggravated
sexual assault based on either an 'aggravated assault on another' or a 'burglary.'"
Ibid. Under those circumstances, merger was inappropriate because the facts
indicated conduct that constituted violations of different criminal statutes. Id.
at 61.
We also explained that "[o]ur reading of the statutory provisions leads us
to conclude that the Legislature intended to and did create separate and distinct
offenses for burglary and sexual assault which do not merge." Ibid. In so ruling,
we reasoned as follows:
We cannot conclude that the Legislature intended
the survival of only one crime when the defendant
commits both an aggravated sexual assault or an
attempted aggravated sexual assault during the course
of one of the crimes listed in N.J.S.A. 2C:14-2[(a)](3),
such as a burglary, kidnapping, murder or aggravated
assault. It would be incongruous to suppose that a
kidnapping, murder or arson . . . would merge with an
attempted aggravated sexual assault, even if we merged
the 'lesser offense' into the greater. . . . It is difficult to
conclude logically that there should be a merger where,
as here, in the course of a burglary Adams attempted to
commit an act of sexual penetration, and also used
physical force or coercion to injure the victim . . . .
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If the reasoning in Ramos applied, there would be
little to deter an individual from committing a sexual
assault during a robbery, kidnapping, burglary or any
of the other crimes enumerated in N.J.S.A. 2C:14-
2[(a)](3).
[Id. at 63-64.]
In enacting N.J.S.A. 2C:14-2(a)(3), the Legislature "intended the crime of
aggravated sexual assault to be separate and distinct from the underlying
offenses." Cole, 120 N.J. at 330-32 (finding merger inappropriate where "[t]he
evidence support[ed] three possibilities that could raise defendant's conviction
for sexual assault to aggravated sexual assault," namely, the commission of a
robbery, kidnapping, or aggravated assault); see also Adams, 227 N.J. Super. at
66-67 ("The harm from the attempted aggravated sexual assault is of a different
nature from that involved in the burglary. . . . The fact that it is committed
during the course of one of the crimes enumerated in N.J.S.A. 2C:14-2(a)(3)
only enhances the potential risk of harm to the victim.").
Similar to Adams, defendant here was convicted of both aggravated sexual
assault and burglary, as well as kidnapping and aggravated assault. Although
burglary, kidnapping, and aggravated assault are each statutory elements of
aggravated sexual assault, the convictions should not be merged with the
aggravated sexual assaults, as the crimes represent distinct harms to the victim.
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Finally, as the jury convicted defendant of all three crimes, either kidnapping or
aggravated assault alone or together could have served to elevate his conviction
to first-degree aggravated sexual assault; moreover, burglary is simply not an
element of any of these offenses. The evidence supported several possibilities
that could have enhanced the sexual assault to an aggravated sexual assault,
making merger inappropriate, including that defendant used coercion against the
victim and the victim sustained "severe personal injury." N.J.S.A. 2C:14-2(6);
see Cole, 120 N.J. at 330-32.
Next, we consider defendant's contention that his convictions for third-
degree possession of a weapon for an unlawful purpose and first-degree
aggravated sexual assault should have been merged. We disagree.
''Merger is not required when the evidence submitted to the jury is
sufficient to permit it to determine that defendant possessed the [weapon for] an
unlawful purpose independent of the greater offense'' and importantly, ''when
the jury has been properly instructed and those instructions do not restrict the
jury's consideration of the unlawful purpose only to commission of the greater
offense for which defendant was found guilty.'' Diaz, 144 N.J. at 632 (emphasis
added). In State v. Williams, 213 N.J. Super. 30 (App. Div. 1986), where the
jury's verdict was ambiguous, and the defendant was convicted of possession of
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a weapon for an unlawful purpose and manslaughter, we explained there are four
conditions to merger under the circumstances,
(1) the defendant must have been charged in the
indictment with possession of the weapon with a
broader unlawful purpose, either generally or
specifically, than using the weapon to kill or assault the
victim of the greater offense, (2) the evidence must
support a finding that the defendant had a broader
unlawful purpose, (3) the judge must have instructed
the jury of the difference between possession with the
specific unlawful purpose of using the weapon against
the victim of the greater offense and a broader unlawful
purpose and (4) the verdict must express the jury's
conclusion that the defendant had a broader unlawful
purpose.
[Williams, 213 N.J. Super. at 36].
The third factor is essential because "'[a] jury is not qualified to say
without guidance which purposes for possessing a gun are unlawful under
N.J.S.A. 2C:39-4(a) and which are not.'" Diaz, 144 N.J. at 640 (alteration in
original) (quoting State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989)).
In other words, where the jury's verdict does not reflect what charge or other
"broader unlawful purpose" the jury relied upon, we "may not assume, that the
verdict on possession of the gun for an unlawful purpose was for a broader
unlawful purpose than" the greater offense with which the defendant was
charged and convicted. Ibid. As the Diaz Court articulated, "[w]e hold that
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when a trial court declines to use a special verdict but there is sufficient evidence
before the jury to support a finding of a broader purpose to use the weapon
unlawfully . . . and the trial court gives a proper jury instruction that does not
include an instruction that the unlawful purpose is the same as using the weapon
to commit the substantive offense, merger is not required." Id. at 638-39.2
Where "[t]he evidence tends to prove that defendant possessed the weapon
unlawfully only to commit the substantive offense [and n]o broader unlawful
purpose [is] supported directly or circumstantially by the evidence," merger is
appropriate. Tate, 216 N.J. at 311 (emphasis added). Even when evidence of
other offenses exists, if "the jury is explicitly instructed that the unlawful
purpose was to use the gun against the victim of the substantive offense . . .
merger is required notwithstanding that the evidence was sufficient to support a
separate unlawful purpose." Id. at 313 (omission in original) (quoting Diaz, 144
N.J. at 641).
Here, defendant's conviction for possessing a weapon—a knife—for an
unlawful purpose was not supported with a special verdict sheet, and the
2
In Diaz, the trial judge explained to the jury that the State had the burden of
proving that the defendant possessed the gun for the purpose "of using it
unlawfully 'against the person or property of another,'" but the court did "not
instruct the jury what the alleged unlawful purposes were based on the evidence
presented." 144 N.J. at 640.
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indictment and the trial court judge's instructions did not specify any purpose,
other than "to use it unlawfully against" his victim. The indictment therefore
satisfied the first requirement that defendant be generally charged with an
unlawful purpose. Moreover, the second requirement was satisfied by the
evidence adduced at trial that included defendant's use of the knife in kidnapping
the victim and in his aggravated assault of her by the cutting of her hand during
the commission of these crimes. From the evidence presented, the jury
reasonably could have concluded that defendant had a broader purpose in
possessing the knife than only to sexually assault the victim.
As to the third factor, the trial court judge explained to the jury that the
indictment charged defendant with "knowingly and unlawfully . . . possess[ing]
and carry[ing] a certain weapon, to wit, a knife with the purpose to use it
unlawfully against the person of [the victim]." He further explained that under
the statute,
A person who has in his possession any weapon with a
purpose to use it unlawfully against the person or
property of another is guilty of a crime. The elements
that the State must prove beyond a reasonable doubt
are: One, that the defendant possessed a weapon,
namely a knife. Two, that the defendant knew that it
was capable of causing sever[e] bodily injury or death
to another. And three, that it was the defendant's
purpose to use it unlawfully against another.
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....
[T]he third element, purposely to use a weapon
unlawfully against another needs some explanation.
A person acts purposely with respect to the possession
of a weapon with the purpose to use it unlawfully
against another if it is his conscious object to possess
the weapon for that purpose. And purpose may be
gathered from his acts and conduct; that is, you may
find that the defendant had the requisite purpose on the
basis of all that was said and done at the particular time
and place and from all the surrounding circumstances.
The trial court did not include an instruction that defendant's unlawful
purpose in possessing the knife was to use it to commit the sexual assault, but
instead the purpose was to use it "against" the victim. However, he also
instructed that in determining that purpose, the jury could consider "all the
surrounding circumstances" and identify his purpose in light of "all his acts and
conduct." This instruction therefore included consideration of the other crimes
committed and suggested a broader purpose than the aggravated sexual assaults.
As there was no possible lawful purpose in defendant possessing a knife
and using it against the victim in this case, this instruction was sufficient because
the indictment never alleged a specific unlawful purpose, the instruction was
broad enough to include all of defendant's illegal purposes, and it was consistent
with the general language of the indictment.
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Finally, the jury found defendant guilty of burglary, aggravated assault,
aggravated sexual assault, and kidnapping, among other crimes. Thus, the
verdict expresses that the jury believed defendant's broader purpose
encompassed crimes other than the sexual assault. Under these circumstances,
merger was not an option.
We next consider defendant's argument that his conviction for fourth-
degree unlawful possession of a weapon should have merged with his second-
degree burglary conviction. According to defendant, his purpose in possessing
the knife was to commit the burglary. He contends the motion judge "erred in
ruling that the jury could have elevated the burglary charge based on the two
weapons convictions or the aggravated assault charge." Defendant states,
without explanation, that we should vacate the merger of the weapons offenses
and instead merge the unlawful possession of a weapon conviction with the
burglary conviction, apart from arguing that his purpose in possessing the knife
was to commit the burglary. Here, again, we disagree.
In his indictment, defendant was charged with and later convicted of
burglary "by willfully entering an occupied structure, to wit: the residence of
[the victim], with the purpose to commit an offense therein and in the course of
committing said offense or offenses: 1. [k]nowingly or recklessly inflicted
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bodily injury upon [the victim], and/or 2. [w]as armed with a deadly weapon, a
knife." He was also charged with and later convicted of committing fourth-
degree unlawful possession of a weapon and third–degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). At sentencing, the trial
court merged the former with the latter.
The trial court judge's burglary instruction to the jury included his reading
the indictment that stated "[defendant] . . . did commit the crime of burglary by
willfully entering an occupied structure, to wit, the residence of [the victim] with
the purpose to commit an offense therein and in the course of committing said
offense or offenses, one knowingly or recklessly inflicted bodily injury upon
[the victim] and/or was armed with a deadly weapon, a knife." (Emphasis
added).
However, in his charge to the jury as to the elements of the burglary, the
trial court judge did not include that the State had to prove injury to the victim
or that defendant possessed a knife. Rather, he explained "the State must prove
beyond a reasonable doubt the following elements: [o]ne, that . . . defendant
entered the residence of [the victim] without permission. And, two, that . . .
defendant entered the premises with the purpose to commit an offense therein."
He also explained that "the State charge[d] that the defendant entered the
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premises with the purpose to commit the crime of sexual assault." But he did
not specifically instruct the jury that they had to find he carried a knife or that
he injured the victim.
The charges as to the weapons offenses did not include a requirement that
there has been proof of a burglary to establish defendant's guilt. Rather, the
"proof required for conviction under N.J.S.A. 2C:39-5(d) is the knowing
possession of a weapon under circumstances not manifestly appropriate for a
lawful use." State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986). As to
the possession of a weapon for an unlawful purpose, "[u]nder N.J.S.A. 2C:39-
4(d), 'in addition to proving knowing possession of a weapon, the State must
prove an unlawful purpose.'" Ibid. Therefore, "all the elements of N.J.S.A.
2C:39-5(d) are part of the proof necessary to establish a violation of N.J.S.A.
2C:39-4(d)." Ibid. As such, the merger of those two counts was proper. Ibid.The weapons charges could not be merged with the burglary because as
the trial court judge instructed, the State needed only to prove that defendant
entered into the residence without permission with the intent to commit any
unlawful act. Possessing a weapon unlawfully for an unlawful purpose was not
an element of the offense. In any event, defendant was also convicted of
aggravated assault, which supported his second-degree burglary conviction.
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The trial court judge correctly did not merge the weapons and burglary
convictions and, contrary to defendant's argument, his separate sentencing on
the merged weapons offenses and burglary did not constitute impermissible
double counting, which occurs when a defendant's conduct is used to prove an
element of the offense and is used again as an aggravating factor in sentencing.
State v. Lawless, 214 N.J. 594, 608 (2013).
Defendant's final argument on merger is that the motion judge failed to
vacate the merged counts. Although he recognizes that the judge was "correct
that merged counts are not extinguished," defendant maintains that "merger
issues are posed as questions of whether or not one offense merges into another,
suggesting that an existing offense is overwhelmed by another and disappears
into it." Defendant contends that "it would seem more appropriate to
conceptualize the convictions as merger with one another and the surviving
greater conviction being the single offense for which, in the final analysis, the
defendant was liable all along."
We conclude that defendant's argument in this regard is without sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Suffice
it to say that despite defendant's concession that merged convictions are not
extinguished, see State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.
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1994), his suggestion that he was in effect only guilty of the greater offense
merely restates the call for extinguishing the merged convictions.
Affirmed.
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