State of New Jersey v. E.G.

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2495-23

STATE OF NEW JERSEY, Plaintiff-Respondent,

v. E.G.,

Defendant-Appellant.

_______________________

Argued November 18, 2025 – Decided September 4, 2026

Before Judges Rose, DeAlmeida and Torregrossa-

O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 22-11-

0504.

Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N.

Sellitti, Public Defender, attorney; Kevin S.

Finckenauer, of counsel and on the briefs).

Emily M. M. Pirro, Assistant Prosecutor, argued the cause for respondent (John P. McDonald, Somerset County Prosecutor, attorney; Jessica L. Bosland,

Assistant Prosecutor, and Emily M. M. Pirro, of counsel and on the brief).

PER CURIAM Defendant E.G.1 appeals from a March 8, 2024 judgment of conviction (JOC) after a jury found him guilty of attempted murder and six related crimes. We affirm.

I.

We summarize the pertinent facts from the evidence adduced at the three-

day trial. The State called various witnesses, including Monica. Defendant did not testify or call any witnesses.

Monica testified she and defendant met in 2017. They became romantically involved and had two children. On May 3, 2022, the two had been drinking alcohol at their home in Georgia. They decided to end their romantic relationship and co-parent their children. An argument ensued and neighbors called police. The officers told defendant to leave their apartment for twenty- four hours.

Although defendant initially left, he returned later that evening, and tried to kick down the apartment door. Neighbors again called police. The same

1 We identify defendant by his initials and adopt a pseudonym for the victim because defendant's convictions involve domestic violence. R. 1:38-3(c)(12).

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officers responded and again told defendant to leave for twenty-four hours. Monica, concerned defendant would not leave, asked one of the officers to stay in the parking lot of the complex. Monica boiled a pot of water to use as a weapon if defendant returned and attempted to hurt her.

While standing outside, Monica saw defendant running toward her, past the parked police officer, appearing as if he intended to grab her. She ran into her apartment with defendant in close pursuit. Monica grabbed the pot of boiling water and threw it at defendant, injuring him and burning her forearm. Defendant grabbed Monica around the neck, pushed her to the ground, and began to strangle her. The officer, who saw defendant running after Monica, chased him into the apartment and tased him. Defendant's incapacitation from the tasing allowed Monica to escape his grip. Both Monica and defendant were taken to a hospital for treatment.

Monica decided it was unsafe for her and the children to remain in Georgia. She left the hospital, gathered the children, and returned to New Jersey, her home state.

Defendant subsequently contacted Monica, apologized for his behavior, and asked to see the children. She permitted defendant to visit her and the children in New Jersey in June 2022. The visit was uneventful.

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On August 21, 2022, defendant again came to New Jersey to visit Monica and their children. When Monica picked up defendant at a bus station, she immediately noticed he smelled of alcohol. They stopped at a liquor store for drinks before heading to a Somerset County hotel. Although defendant continued to consume alcohol, Monica stopped drinking.

After dinner, Monica, defendant, and their children went to a park, where defendant continued to drink. He asked Monica why she was not drinking and said, "It's going down tonight." Monica was confused by the comment and asked defendant what he meant. He told her not to worry about it. At defendant's request, they again went to a liquor store and purchased alcohol.

Once they returned to the hotel, Monica prepared the children for bed.

Eventually, Monica, defendant, and the two children were laying in the same bed. Defendant began to hold Monica and said he missed his family. She did not reply. Monica then noticed defendant was squeezing her body to the point that it was "too tight." She asked him to loosen his grip. Her comment caused defendant "to fly off the handle" and say, "Okay, that's it," before he stood up and retrieved a handgun from his bag.

Defendant turned to Monica and said, "This is what's going to happen, I'm going to kill you and then I'm going to kill myself." Monica asked why and tried

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to calm defendant down. He said, "Once I pull this out, that's it." Monica attempted to diffuse the situation by saying, "Whatever is going on, we could – we could fix it."

Defendant responded by putting the gun next to Monica's head and telling her to "shut the fuck up." Frightened, Monica stopped talking. At that point, she was sitting with her back against the headboard on the right side of the bed, with her children sleeping to her left. Defendant ranted at Monica for an hour, pacing the room, and saying he was getting her back for what she had done to him. As he spoke, defendant pointed the handgun at Monica, and periodically cocked the weapon's hammer. Defendant then sat with the gun on his lap between Monica and the door. When Monica asked defendant if he intended to hurt the children, he refused to answer, terrifying her.

When defendant entered the bathroom, Monica jumped up, slammed the bathroom door closed, and ran into the hall toward the front desk. As she ran, defendant chased her while shooting at her. Monica reached the front desk, screaming for help, and said to the attendant, "He's trying to kill me."

Monica tried to open several doors, but they were locked. With defendant still chasing her, Monica ran out the back door of the hotel and tried to curl up and hide in a bush. Defendant saw her and started firing into the bush, striking

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Monica in the ankle. She tried to get up and run, but fell. Defendant approached her and stood over her, pointing the gun down at her. He said, "Well, are you bleeding?" Monica did not answer, except to plead with him not to shoot her. Approaching police sirens caused defendant to run away. Monica ran back to the hotel's second floor and hid in a janitor's closet.

A hotel employee had called 9-1-1 from the back office, where he saw the commotion on security cameras. He reported Monica was screaming, asking for help, and banging on doors while a man fitting defendant's description chased her. The employee also saw Monica run back into the building and head to the janitor's closet.

While Monica was in the janitor's closet, defendant was loitering in the lobby, which was at that point quiet. Police arrived and approached defendant and several other witnesses. Defendant appeared intoxicated and was speaking in circles. He said he had not heard anything, and had not been arguing with anyone, but there was a girl who was in her room. Defendant led officers to the room before saying the girl was not in the room, he did not know where she was, and did not have a key. The officers returned to the lobby with defendant.

When Monica heard police, she returned to the lobby, where she saw an officer at the front door, and defendant standing with several other officers. She

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ran to the officer at the door, pointed to defendant, and said "He's trying to kill me." The officers arrested defendant.

Police subsequently entered Monica's hotel room, where they saw the children still in bed sleeping. The officers' canvas of the hotel revealed droplets of blood, shell casings, and bullets that penetrated a wall into an adjacent hotel room occupied by two people. Officers also found a handgun in a storm drain near the hotel. There was no ammunition in the gun. All ten shell casings found at the scene were matched to the gun found in the storm drain through ballistics analysis.

At the hospital, doctors determined Monica was shot six times: twice in the abdomen, twice in the left buttocks, and twice in the left ankle. The bullet track within her abdomen was within a centimeter of her small intestines.

A Somerset County grand jury indicted defendant, charging him with: (1)

first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), (2) (count one); (2) first-degree attempted murder, N.J.S.A. 2C:5-1(a)(2), (3) and N.J.S.A. 2C:11-3(a)(1) (count two); (3) second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); (4) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count four); (5) two counts of second-degree endangering the welfare of a child (EWC), N.J.S.A. 2C:24-4(a)(2) (counts five

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and six); and (6) two counts of third-degree endangering another person (the two people occupying the adjacent hotel room), N.J.S.A. 2C:24-7.1(a)(3) (counts seven and eight).

Over the three-day jury trial that followed, defense counsel did not deny defendant was at the hotel, possessed a gun, or fired it. His counsel disputed the allegation defendant was trying to kill Monica.

The jury convicted defendant of all counts, except kidnapping (count one), on which it could not reach a unanimous verdict.

For the conviction of first-degree attempted murder (count two), the court sentenced defendant to a fifteen-year term of imprisonment, with an eighty-five- percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court sentenced defendant to ten-year terms of imprisonment on each conviction on counts three through six, and five-year terms of imprisonment on each conviction on counts seven and eight. The court directed the sentences on counts three through eight be served concurrently with the sentence on count two. On the State's motion, the court dismissed count one.

A March 8, 2024 JOC memorialized defendant's convictions and sentence.

This appeal followed.

Defendant raises the following arguments.

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POINT I

THE TRIAL COURT UNDULY INTERFERED IN THE JURY'S DELIBERATION ON THE ATTEMPTED-MURDER CHARGE BY INSTRUCTING THE JURY THAT IT COULD FIND [DEFENDANT] HAD THE INTENT TO KILL – THE MOST SIGNIFICANT AND CONTESTED ISSUE IN THE CASE – BASED ONLY ON THE USE OF THE HANDGUN. (Not raised below)

POINT II

THE TRIAL COURT ERRED IN FAILING TO GIVE THE NECESSARY ORAL-STATEMENTS-OF-

DEFENDANT INSTRUCTIONS WITH RESPECT TO [MONICA'S] TESTIMONY THAT [DEFENDANT]

TOLD HER "IT'S GOING DOWN TONIGHT" AND THAT HE WAS GOING TO KILL HER. [(Not raised below)]2

POINT III

THE TRIAL COURT OMITTED THE EXPLANATION OF AN ESSENTIAL ELEMENT OF SECOND-DEGREE POSSESSION OF A HANDGUN WITHOUT A PERMIT FROM ITS ORAL INSTRUCTIONS, REQUIRING A REVERSAL OF THAT CONVICTION. (Not raised below)

POINT IV

THE TRIAL COURT REVERSIBLY ERRED BY INSTRUCTING THE JURY THAT IT COULD

2 Defendant contends he raised the issues addressed in Point II at trial. As explained more fully below, we disagree.

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CONVICT [DEFENDANT] OF [EWC] BASED ON KINDS OF ABUSE THAT WERE COMPLETELY UNSUPPORTED BY THE EVIDENCE. (Not raised below)

POINT V

THE TRIAL COURT INCORRECTLY CHARGED THE ELEMENTS OF ENDANGERING ANOTHER PERSON BY TELLING THE JURY IT COULD CONVICT [DEFENDANT] BASED ON ANY "RISK OF DEATH" WHEN THE STATUTE REQUIRES THE STATE TO PROVE A "SUBSTANTIAL RISK OF DEATH." (Not raised below)

II.

Defendant's arguments concern the trial court's jury instructions. Because he raises these arguments for the first time on appeal we review them for plain error. It is well-settled that "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). However, "[i]f the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).

Therefore, "the failure to object to a jury instruction requires review under the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007); accord

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R. 2:10-2. Plain error "is a 'high bar'" to surmount. State v. Santamaria, 236 N.J. 390, 404 (2019).

As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).]

The error "must be evaluated in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting Chapland, 187 N.J. at 289).

The mere possibility of an unjust result is not enough to warrant reversal of a conviction. State v. Jordan, 147 N.J. 409, 422 (1997). "Thus, the error will be disregarded unless a reasonable doubt has been raised whether the jury came to a result that it otherwise might not have reached." State v. R.K., 220 N.J. 444, 456 (2015).

A. Attempted Murder Charge Defendant posits the most significant issue before the jury was whether he acted with the specific intent to kill Monica on the night of the shootings or was acting with a lesser or reckless intent. He argues the model jury charge for attempted murder, which the court read verbatim to the jury, instructed jurors to A-2495-23

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disregard the bulk of the evidence adduced at trial and find he had the intent to kill Monica based only on the fact he was armed with a handgun. According to defendant, the instructions unduly interfered with the jury's deliberation with respect to his intent, warranting reversal of his convictions for attempted murder and possession of a weapon for an unlawful purpose.

The model jury charge for attempted murder provides in relevant part:

The use of a deadly weapon such as a gun in itself may permit you to draw an inference that the defendant's purpose was to take a life. 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 death . . . . In your deliberations you may consider the weapon used and the manner and circumstances of the attack, and if you are satisfied beyond a reasonable doubt that the defendant shot the victim with a gun you may draw an inference from the weapon used, that is the gun, and from the manner and circumstances of the attack, as to the defendant's purpose.

[Model Jury Charges (Criminal), "Attempted Murder (N.J.S.A. 2C:5-1/N.J.S.A. 2C:11-3(a)(1))" (approved Dec. 7, 1992); see also Model Jury Charges (Criminal), "Murder (N.J.S.A. 2C:11-3(a)(1) and 3(a)(2))" (rev.

June 14, 2004) (containing almost identical language).]

The instruction involves a permissive inference, which permits the jury to infer a particular fact, in this case plaintiff intended to kill Monica, has been proven if the State has adequately proven an extraneous act, in this case the use A-2495-23

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of a gun. See Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 157 (1979). A permissive inference "suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." Francis v. Franklin, 471 U.S. 307, 314 (1985). The inference "does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved." Ibid.

Permissive inferences derive from what were historically termed mandatory presumptions. "A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts." Ibid. Mandatory presumptions are constitutionally dubious because they relieve the State of its burden to prove every element of the offense beyond a reasonable doubt by shifting the burden of persuasion to the accused to rebut the presumed fact. Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Thus, instructions on a permissive inference must adequately convey to the jury the inference is permissive, not mandatory. State v. Humphreys, 54 N.J. 406, 415 (1969); N.J.R.E. 303(c) (codifying prohibition on mandatory presumptions).

The court instructed the jury if it was satisfied defendant shot Monica it "may draw an inference from the weapon used" that he intended to kill her.

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Despite the charge's apparent compliance with Humphreys, defendant argues it was constitutionally suspect because "it [wa]s little more than an unwarranted interference with the jury's assessment of an essential element of one of the most serious criminal offenses in our Code [of Criminal Justice]." In addition, he argues the charge, if not per se improper, constituted reversible error because it concerned an element of two charged crimes that was "the single most contested issue of the trial and the biggest factual dispute for the jury to resolve." Finally, he argues "even if some instruction of this kind might be appropriate, it must have been more narrowly tailored than what was provided."

In support of his argument, defendant sets forth a detailed history of decisions of New Jersey courts concerning permissive inference instructions. None of those precedents, however, suggests such instructions are unconstitutional. To the contrary, our Supreme Court nearly fifty years ago held "intent to take life may be shown by inference, via the character of the assault, the use of a deadly weapon, and other attendance circumstances . . . ." State v. Thomas, 76 N.J. 344, 359 (1978). That holding has been reflected for more than thirty years in the model jury charge for attempted murder, which was delivered verbatim here. Moreover, in the circumstances of this case, including

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defendant's chase of Monica through public areas of a hotel as he fired six bullets into her body, the instruction was apt.

Defendant notes courts in other states have limited or prohibited permissive inference instructions in various contexts. See State v. Burdette, 832 S.E.2d 575, 583 (S.C. 2019) ("[T]rial courts shall not instruct a jury that the element of malice may be inferred when the deed is done with a deadly weapon."); Harris v. State, 543 S.E.2d 716, 717 (Ga. 2001) (reversible error to instruct jury, "if a person of sound mind . . . uses a deadly weapon in the manner in which the weapon is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill."); Funches v. State, 148 So. 2d 710, 711 (Miss. 1963) (reversible error to instruct jury that "malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon."); Brown v. State, 122 S.W.3d 794, 800-01 (Tex. Crim. App. 2003) ("[A] court may not instruct a jury that 'intent to kill may be inferred from the use of a deadly weapon' because that instruction would be an impermissible comment on the weight of the evidence.").

Of course, the opinions of foreign courts do not control the validity of our State's longstanding jury instructions. Defendant makes, in effect, a policy argument for modification or elimination of permissive inferences long

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permitted in our State. However, our institutional role as an intermediate appellate court is a limited one. We are bound to follow the precedents of our Supreme Court, even where a party contends they are ill-founded or outdated. See, e.g., State v. Carrero, 428 N.J. Super. 495, 511 (App. Div. 2012) (declining the defendant's request we reconsider the Supreme Court's holding on the admissibility of Alcotest results); State v. Breitweiser, 373 N.J. Super. 271, 282- 83 (App. Div. 2004) (recognizing, as an intermediate appellate court, we are bound by the Supreme Court's holdings).

Our Supreme Court has held "[i]nferences are constitutionally sound so long as the jury is not compelled to accept them and the trier of fact can rationally make the connection between the facts and the inference." State v. Martini, 131 N.J. 176, 271-72 (1993). Specifically, in Thomas, the Court held jurors may draw a permissive inference of an intent to take life from a defendant's use of a deadly weapon. 76 N.J. at 359. Defendant's request for a change in the long-standing precedents permitting permissive inferences is more appropriately addressed to the Supreme Court.

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B. Defendant's Oral Statements Defendant argues the trial court gave an incomplete instruction with respect to the statements he made to Monica on the night of the shooting, warranting reversal of his convictions for attempted murder and possession of a weapon for an unlawful purpose. We disagree.

As evidence of defendant's intent to kill Monica, the State elicited her testimony defendant told her, "It's going down tonight," "I'm going to kill you and then I'm going to kill myself," and "Once I pull this out that's it." Defendant argues because evidence of this type is unreliable, a carefully crafted model jury charge was adopted to guide jury deliberations. The trial court, however, did not read the model charge to the jury.

Testimony about oral statements is "regarded as unreliable evidence"

because "[a]side from the danger of fabrication, . . . they are frequently misunderstood, imperfectly remembered, and inadvertently made." State v. Kociolek, 23 N.J. 400, 421 (1957) (citations omitted) (internal quotation marks omitted). Given the "general distrust," "an antidote" is "an instruction to the jury against trusting overmuch the accuracy of such testimony . . . ." Id. at 421- 22 (citations omitted) (internal quotation marks omitted). A jury should be told "the generally recognized risk of inaccuracy and error in communication and

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recollection of verbal utterances and misconstruction by the hearer" and "there are inherent weaknesses in this character of testimony: faulty memory, the danger of error in understanding and repetition." State v. Jordan, 147 N.J. 409, 420 (1997) (internal quotations marks omitted) (quoting Kociolek, 23 N.J. at 421).

The model charge for oral statements by a defendant provides:

In considering whether or not an oral statement was actually made by the defendant, and, if made, whether it is credible, you should receive, weigh and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. The specific words used and the ability to remember them are important to the correct understanding of any oral communication because the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence.

You should, therefore, receive, weigh and consider such evidence with caution.

[Model Jury Charges (Criminal), "Statements of Defendant – Allegedly Made" (rev. June 14, 2010).]

The trial court's initial jury charge concerned only defendant's statements captured on the body worn cameras of the police officers in the hotel lobby. That instruction was:

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Now we also have in this case an oral statement alleged to have been made by [defendant]. The statement has been introduced by the prosecution not as evidence of [defendant]'s guilt of the crime charged, but to affect his credibility on the condition that the jury first determine that the statement was made. Now you'll remember that the State introduced videos of [defendant] speaking with police officers when they responded to the . . . [h]otel.

. . . [P]rior to your considering the statement for the limited purposes of affecting [defendant]'s credibility, you must determine whether the statement was actually given. In considering whether or not the statement was made by [defendant], you may . . . take into consideration the circumstances and facts surrounding the giving of the statement.

If you find that the statement was not made, then you must not consider it for any purpose. If you find that only part of the statement was made, you may . . . only consider that part as it may affect [defendant]'s credibility. If you find that the statement was made, it may be considered solely to determine [defendant]'s credibility if you believe it does affect such credibility and not as evidence of guilt.

In this regard in all facts . . . you will want to consider all of the circumstances under which the statement occurred, the extent, importance and lack of importance of the inconsistency including such factors as . . . when and where the prior statement occurred and the reasons therefore. The . . . extent of the statement is for you to determine. Consider the materiality and relationship of such contradictions to the entire testimony and the evidence in the case.

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The instruction, which focused on the use of a defendant's statement to determine his credibility, did not mention defendant's statements to Monica or contain the cautionary instructions required by the holdings in Jordan and Kociolek.

After the jury was charged, the assistant prosecutor requested a sidebar conference. The transcript of his exchange with the court is incomplete. He stated, "[I]t's just missing the text messages . . . and also his statement to [Monica] in the room . . . ." The court replied, "I'll clarify. You just want to clarify that those were statements not – not just (indiscernible) – right?" The assistant prosecutor replied, "[Y]eah. That . . . that charge . . . applies to his oral statements – his alleged oral statements to the (indiscernible) . . . and the text messages . . . ." During the conference, defense counsel did not object to the instruction.

The court then clarified its oral charge as follows:

When I instructed you about prior statements of the defendant, I referred only to videos of [him] speaking with police officers when they responded to the . . .

[h]otel. Prior statements should have also included the text messages which we introduced into evidence and the prior statements should have also included any statements to police officers by the victim that were recorded on the body cam.

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After giving the clarification, the court asked counsel if the charge was accurate. The assistant prosecutor stated, "I think it should also apply to any alleged statements made by [Monica] to . . . [d]efendant in the . . . room." Defense counsel again did not object.

The court supplemented the jury instructions again by stating, "not just by [Monica] to the police, but by [Monica] to [defendant]. Anything of that comes into a statement by the defendant that's referred to on page [eight]. Okay?" The court later stated, "All right? We're [gonna] clarify that in writing over the lunch break. But I wanted to make that oral clarification here." Thus, the oral instructions did not include the warnings required by Jordan and Kociolek or address defendant's statements to Monica, on which the State relied as evidence of his intent to kill her.

After the court modified the written charge, it told the jury:

We have added that the State has also produced statements to police officers that were recorded on their body worn cameras, that [Monica] made certain statements that were recorded on the body worn cameras, and the text messages that were introduced into evidence. So those additional things have been included in the 404(b) charge and in the prior statement charge. So you'll have that written explanation.

Understand that while some of those items refer to motive, the State's allegation here is that the text messages refer to a plan, not necessarily a motive.

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Okay? So, those statements, obviously, don't refer to a plan, but the text messages refer to a plan. That's the State's allegation. And I think that should clarify the charge for everyone. 3

We begin our analysis with our conclusion defense counsel did not object to the jury charge. After the court issued its initial instruction, the assistant prosecutor raised a concern – not that the court failed to give the model jury charge on oral statements by defendants – but that the court did not mention text messages and statements made by Monica to defendant. Defense counsel did not raise any objection to the charge. After the court issued its supplemental oral and written charges, neither of which included the cautions required by Jordan and Kociolek, defense counsel again did not object. We therefore review the record on this aspect of the jury instruction for plain error.

We are not persuaded by the State's argument the defendant's-statement charge was unnecessary because defendant's comments to Monica were not made during police interrogation. The purpose of the charge is to ensure the jury is aware of the inherent weaknesses in testimony recounting a defendant's oral statements, particularly oral statements made to a victim, and to consider

3 Defendant does not rely on the text messages, the contents of which are not included in the parties' briefs.

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such evidence with caution. These concerns are present outside the context of custodial interrogation.

Having reviewed the record, we are convinced the inadequate instruction did not have the clear capacity to produce an unjust result. While the court did not caution the jury with respect to the reliability of testimony regarding defendant's oral statements, it instructed the jury it "must determine whether the statement was actually given," and to "take into consideration the circumstances and facts surrounding the giving of the statement[s.]"

In addition, the State produced strong evidence of defendant's intent to kill Monica, apart from his threatening oral statements. Defendant does not dispute he brought a loaded handgun to a planned visit with Monica and their children. Monica and other witnesses testified defendant chased her through the hotel while firing at her, followed her outside as she tried to escape, and stood over her while she cowered in a bush with his weapon pointed at her, before running away when he heard approaching police sirens. During the chase, defendant emptied the handgun's cylinder, shooting Monica six times as she fled. We are satisfied the inadequate jury instruction did not lead to a result the jury would not otherwise have reached.

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C. Second-Degree Possession of a Handgun Charge N.J.S.A. 2C:39-5(b)(1) provides "[a]ny person [to] knowingly [have] in his possession any handgun . . . without first having obtained a permit to carry the same as provided in [N.J.S.A.] 2C:58-4" is guilty of a second-degree offense. To convict a defendant of this offense, the State must prove: (1) there was a handgun; (2) the defendant knowingly possessed the handgun; and (3) the defendant did not have a permit to possess such a weapon. Model Jury Charges (Criminal), "Unlawful Possession of a Handgun (Second Degree) (N.J.S.A. 2C:39-5b)" (rev. June 11, 2018).

In the final oral jury charge, the court began by tracking the model jury charge for second-degree unlawful possession of a handgun, including a full explanation of the first and second elements of the offense. Turning to the definition of "actual possession," the court said, "I have previously defined actual possession for you and it's in the charge itself." The court then turned to other offenses.

While it may have been appropriate to avoid repeating the definition of actual possession, the court also failed to read the third element of the offense, set forth in the model charge for second-degree unlawful possession of a weapon:

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The third element that the State must prove beyond a reasonable doubt is that the defendant did not have a permit to possess such a handgun. If you find that the defendant knowingly possessed the handgun, and that there is no evidence that defendant had a valid permit to carry such a handgun, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such permit. Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid permit and that you may draw the inference only if you feel it appropriate to do so under all the facts and circumstances.

If you find that the State has failed to prove any of the elements of the crime beyond a reasonable doubt, your verdict must be not guilty. On the other hand, if you are satisfied that the State has proven each and every element of the crime beyond a reasonable doubt, your verdict must be guilty.

[Ibid.]

The oral instructions, therefore, failed to include the third element of the offense and did not remind the jurors they must acquit defendant of this offense if the State did not prove one of the elements beyond a reasonable doubt.

Defendant argues our holding in State v. Kille, 471 N.J. Super. 633 (App.

Div. 2022), which arose from similar faulty jury instructions, requires reversal of his conviction for unlawful possession of a weapon. In Kille, the defendant was charged with second-degree unlawful possession of a weapon. Id. at 637. At trial, "[w]ithout objection, the State introduced an affidavit from a New A-2495-23

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Jersey State Police detective stating a search of their database failed to reveal [the] defendant made any application for, or was ever issued, a permit to purchase or carry a handgun." Id. at 641. While the court gave the jury complete written instructions on the unlawful possession of a weapon charge, its oral instructions omitted the same passage omitted in this matter on the third element of the offense. Id. at 643. The oral instructions, however, included the paragraph, omitted here, regarding the State's obligation to prove every element of the offense beyond a reasonable doubt. Ibid.

On direct appeal, Kille argued it was plain error for the trial court to have omitted the oral instructions regarding the third element. Ibid. We agreed. As we explained,

telling the jury it may infer from the State Police affidavit that defendant did not have a permit if "appropriate to do so under all the facts and circumstances," as opposed to permitting the jury in the absence of any instruction to presume the affidavit was indisputable evidence that [the] defendant did not have a permit, is critically connected to [the] defendant's due process rights. State v. Ingram, 98 N.J. 489, 495-98 (1985); See also State v. Walten, 241 N.J. Super. 529, 534-35 (App. Div. 1990) (applying similar due process analysis to statutory presumption in motor vehicle prosecution and permitting only an inference that may be accepted or rejected by the fact finder).

[Id. at 646.]

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We continued: "We cannot assume all deliberating jurors read the judge's written instructions, or that the written instructions were even examined by the jurors. The failure to give that portion of the model charge orally was plain error requiring reversal of defendant's conviction for unlawful possession of a handgun." Ibid.

Defendant's argument the holding in Kille requires reversal of his conviction has surface appeal. However, there are material differences between the present record and the facts that were before us in Kille. Here, defendant did not contest that he illegally possessed a handgun while at the hotel. In fact, during the jury charge conference, defense counsel stipulated defendant did not have a permit to carry a handgun in New Jersey on the day of the offense.

That stipulation was reduced to a written agreement that provided:

[T]he parties agree and stipulate that on August 21st, 2022, [defendant] did not have a permit to carry a handgun as required by New Jersey Law pursuant to N.J.S.A. 2C:58-4. Detective . . . of the New Jersey State Police conducted a thorough search of the Firearms Investigation Unit records which failed to reveal [defendant] making application for or being issued a permit to carry a handgun.

The court marked the stipulation as an exhibit and admitted it as evidence.

The court thereafter charged the jury in accordance with the model charge for stipulations. The court's instructions were: "The parties have agreed to A-2495-23

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certain facts. You, as the jury, should treat these facts as undisputed, i.e., both parties agree that these facts are true. As with all evidence, undisputed facts can be accepted or rejected by you in reaching a verdict." The State then read the stipulation into the record.

The court's charge with respect to the stipulation was correct. Stipulations of fact are binding on the parties. Negrotti v. Negrotti, 98 N.J. 428, 432-33 (1985). However, "in a criminal case, the jury is not bound by stipulated facts." State v. Wesner, 372 N.J. Super. 489, 494 (App. Div. 2004); Model Jury Charges (Criminal), "Stipulations" (approved Feb. 14, 2005). "A jury is free to reject any evidence, including that which is uncontroverted." Wesner, 372 N.J. Super. at 494. "[I]f facts are stipulated, the judge should not tell the jurors that they are 'bound' by such stipulated facts, if to do so would result in a directed verdict of any element of an offense charged." Id. at 491.

In addition, here the court included the third element of the unlawful possession of a weapon charge when it first discussed count four of the indictment in its jury instructions. The court read the count of the indictment to the jurors, including the allegation defendant "did possess a handgun, that is a Taurus 9mm pistol, without first having obtained a permit to carry same as provided in N.J.S.A. 2C:58-4 . . . ." In addition, the court instructed the jury

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there were three elements to the offense, including "that [defendant] did not have a permit to possess such a weapon."

We are convinced the incomplete jury instructions on count four were not clearly capable producing an unjust result for several reasons. First, the court mentioned the third element of the offense two times when discussing count four. Second, defendant voluntarily stipulated to not having applied for or been issued a permit to possess a handgun in this State. Third, in his opening statement, defense counsel admitted defendant illegally had a handgun in New Jersey. And fourth, the absence of any indication in the record the jury would have any cause to doubt the validity of the stipulation entered shortly before the jury was charged.

D. EWC Charges N.J.S.A. 2C:24-4(a)(2) provides:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1], [N.J.S.A. 9:6-3], and [N.J.S.A. 9:6-

8.21] is guilty of a crime of the second degree.

The offense incorporates the definitions of the "harm that would make the child an abused or neglected child" in the three statutes mentioned in N.J.S.A. 2C:24- 4(a)(2). State v. Demarest, 252 N.J. Super. 323, 328 (App. Div. 1991).

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In its final charge, the court tracked the definitions in the three statutes and instructed the jury it could convict defendant of second-degree EWC based on three types of abuse. The court instructed as follows:

[1] Abuse of a child shall consist, in part – the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may – may tend to debauch or endanger or degrade the morals of a child.

[2] Cruelty to a child shall consist, in part – any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child.

[3] Or an abused or neglected child means that [defendant] created or allowed to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious protracted disfigurement, or protracted loss or impairment of the function of any bodily injury (sic).

See Model July Charge (Criminal), [EWC], Abuse Or Neglect (Second Degree) (N.J.S.A. 2C:24-4a(2)) (rev. Mar. 9, 2015) (directing the court to charge the appropriate definition of an abused and neglected child as provided in N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.3).

The assistant prosecutor argued only the third definition of abuse and neglect during his summation, making no reference to the first two definitions in the jury charge.

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Defendant argues the first two definitions had absolutely no basis in the evidence because the record contains no evidence: (1) suggesting the children were awake when defendant was threatening Monica with a gun in the hotel room, so they could not have been exposed to conduct by defendant that may tend to debauch or endanger or degrade their morals; or (2) indicating the children were physically or mentally harmed. Thus, any conviction under those definitions would be invalid. According to defendant, even assuming a reasonable jury could have convicted him under the third definition of harm, there is no way of knowing whether any jurors voted to convict based on one of the first two definitions, which are not supported by the record.

The State counters defendant committed unlawful acts in the presence of the children when he removed a gun from his bag, held it to the head of their mother, threatened her life, and, held her at gunpoint for over an hour, all with them in the same room. The entire time defendant was threatening Monica with a fully loaded handgun, the children were next to her in bed. It is unknown if they were sleeping so soundly that they did not hear defendant's ranting.

The State argues a reasonable jury could infer the children did not sleep soundly through an hourlong session of defendant threatening their mother with a loaded gun before she slammed the bathroom door shut and ran down the

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hallway while he fired his weapon at her. Thus, it would have been reasonable for a jury to conclude defendant's unlawful acts in the hotel room: (1) had the capacity to endanger the children's morals; (2) permitted the infliction of emotional or physical suffering on the children; and (3) created a substantial risk of their physical injury.

Moreover, the State argues if the children were asleep and did not notice the stressful situation taking place in the hotel room, a reasonable jury could nonetheless convict defendant of second-degree EWC. We have held a child victim need not have been aware of or see a defendant's sexual behavior in her presence for a sexual assault conviction to stand. See Breitweiser, 373 N.J. Super. at 283-85 (affirming sexual assault conviction where a defendant stood closely behind an eight-year-old girl in a supermarket and masturbated over his clothes, but the child did not see and was unaware of the defendant's conduct).

We conclude the court's instructions did not have the clear capacity to bring about an unjust result. Defendant's unlawful conduct in close proximity to his children in the hotel room could have been found by the jury to satisfy each of the definitions of abused and neglected children in the relevant statutes and the court's instructions. Thus, the court's instructions were not flawed.

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E. Endangering Another Person Charges N.J.S.A. 2C:24-7.1(a)(3) states "a person commits a crime of the third degree if he knowingly engages in conduct which creates a substantial risk of death to another person." The court's instruction on these charges was as follows:

Coming, at last, to counts seven and eight, . . .

defendant . . . is charged . . . with the crime of endangering another person with a substantial risk of death . . . in the third degree. Counts seven . . . and eight of the indictment read as follows.

The grand jurors of the State of New Jersey, for the County of Somerset, upon their oaths present that [defendant], on or about [August 21, 2022], in the Township of Franklin, County of Somerset, and within the jurisdiction of this [c]ourt, knowingly did engage in conduct which created the substantial risk of death to Jane Doe Two . . . contrary to the provisions of N.J.S.A.

2C:24-7.1(a)(3), and against the peace of this State, the government and dignity of the same. Count eight reads in exactly the same manner except it includes John Doe Number Three . . . .

....

The statute upon which these counts are based reads in pertinent part as follows. "A person commits a crime of the third degree if he knowingly engages in conduct which creates a substantial risk of death to another person."

[(Emphasis added).]

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Immediately thereafter, when outlining the elements of the offense, the court said:

In order to convict [defendant], the State must prove the following elements beyond a reasonable doubt, that [defendant] engaged in conduct which created the risk of death to another person and that he did so knowingly.

[(Emphasis added).]

Although the court erroneously omitted the term "substantial," the fourth time it described the elements of the offense, we cannot conclude the error was clearly capable of producing an unjust result. When reviewing a jury charge we "must not look at portions of the charge alleged to be erroneous in isolation ; rather, 'the charge should be examined to determine its overall effect.'" State v. McKinney, 223 N.J. 475, 494 (2015) (quoting Jordan, 147 N.J. at 422). This isolated misstatement, immediately following three correct descriptions of the elements of the charges, did not rise to plain error warranting reversal of defendant's convictions.

We have considered defendant's remaining arguments and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).

Affirmed.

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