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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4297-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L. A. W.,1
Defendant-Appellant. _______________________
Submitted December 8, 2020 – Decided January 14, 2021
Before Judges Yannotti, Haas and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 16-01-0101.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
1 We use initials to identify defendant and others to protect the identities of the victims of defendant's offenses. See R. 1:38-3(c)(9), (12). PER CURIAM
Defendant was tried before a jury and found guilty of second-degree
aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), and other offenses. She
was sentenced to an aggregate eight-year term of incarceration, with an eighty-
five percent period of parole ineligibility, pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of
conviction dated April 6, 2018. We affirm.
I.
On February 18, 2016, a Morris County grand jury returned an indictment
charging defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and
2C:11-3(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count two); third-degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A.
2C:12-1(b)(4) (count four); two counts of second-degree burglary, N.J.S.A.
2C:18-2(a)(1) (counts five and six); second-degree possession of a weapon
(handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); second-
degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count
eight); two counts of third-degree possession of a weapon (knife, stun gun) for
an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts nine and eleven); fourth-
A-4297-17T4 2 degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) (count
ten); fourth-degree unlawful possession of a prohibited device (stun gun),
N.J.S.A. 2C:39-3(h) (count twelve); fourth-degree unlawful possession of a
prohibited device (hollow point bullets), contrary to N.J.S.A. 2C:39-3(f)(1)
(count thirteen); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count
fourteen); two counts of second-degree endangering the welfare of a child,
N.J.S.A. 24-4(a)(2) (counts fifteen and sixteen); third-degree certain persons not
to have weapons, N.J.S.A. 2C:39-7(b)(3) (count seventeen); and three counts of
fourth-degree contempt, N.J.S.A. 2C:29-9(b) (counts eighteen, nineteen, and
twenty).
Thereafter, Judge Stephen J. Taylor granted the State's motions to admit
defendant's statements to law enforcement, certain N.J.R.E. 404(b) evidence,
and evidence that defendant possessed pills which were found at the crime scene.
Counts seventeen through twenty were severed for trial. Judge Salem Vincent
Ahto presided at the trial of the other charges.
We briefly summarize the evidence presented. Defendant and R.L. had
been in a romantic relationship since 1992. They were never legally married but
lived together as husband and wife with their three biological children, Jo.L.
A-4297-17T4 3 (born in May 1994), Je.L. (born in February 1999), and Ji.L. (born in April
2000).
In 2012, defendant's and R.L.'s romantic relationship came to an end, but
they continued to live together to raise their children and maintained separate
bedrooms. It appears that by April 2012, defendant and R.L. argued regularly.
Their arguments continued to escalate, and R.L. testified that he and the children
felt unsafe.
That month, defendant discovered a personal lubricant in R.L.'s jeans. She
yelled at him and stated, "You are a dead man walking." In addition, during an
argument, defendant told R.L., "I want to kill you and your f---ing whore." R.L.
testified he was afraid and traumatized, to the point that he locked his bedroom
door at night and was "always looking out" for defendant.
On May 19, 2012, R.L. woke up and went to his home office, where
defendant was on the computer. They began to argue. According to R.L.,
defendant slapped him in the face, and then threw the computer, monitor, and
copy machine onto the floor.
Defendant then walked toward the garage and told R.L. she was going to
get a hammer and kill him. He left the home and called the police. Sergeant
George Quentz of the Montville Township Police Department (MTPD) arrived
A-4297-17T4 4 and arrested defendant. Later that day, a judge entered a restraining order
barring defendant from the home.
In June 2013, defendant and R.L. entered a property settlement agreement,
which provided in part that R.L. would be the sole owner of the parties' residence
and he would purchase defendant's ownership interest. Moreover, in September
2014, defendant and R.L. agreed he would have custody of the children.
Between 2012 and 2015, defendant had visitation with the children.
Je.L. testified that he did not have a good relationship with defendant. In
February 2015, defendant was making harassing phone calls and text messages
to him, so he blocked her on his phone. On February 14, 2015, defendant
appeared at the home for an unannounced visit. She made comments that upset
Je.L. Thereafter, Je.L. did not have any contact with defendant.
By early March 2015, Jo.L. was no longer speaking with defendant. That
month, R.L. and defendant were at a hockey game for Ji.L. Defendant told him
she was a medium who "could see the past and talk to people that were dead ."
According to R.L., defendant said Je.L. had the same abilities and if R.L. did
not allow her to help Je.L., she would kill herself. Ji.L. stopped communicating
with defendant.
A-4297-17T4 5 In March and April 2015, defendant sent emails to R.L. He testified that
the emails were threatening and "getting nasty." In an email dated March 14,
2015, defendant told R.L. to "get that f-----g whore out of the house with our
boys[.]" On March 19, 2015, defendant wrote that R.L.'s "silence indicates. . .
you are unwilling to work this out." She stated that his "arrogance" would be
his "downfall." She said she would not "stop" until she had her boys and "what's
fair and just." R.L. also testified that in April and May 2015, defendant left
voicemail messages on his office phone, in which defendant stated she wanted
to speak to the children.
On May 17, 2015, between 7:00 and 8:30 p.m., R.L. returned home from
a hockey game with Je.L. and Ji.L. Jo.L. was at home, sitting at the kitchen
table. R.L. was in his office when he heard the garage door open. Defendant
entered the house and walked into the office. She was holding a bag. R.L. told
defendant she was not allowed in the home and asked her to go to the garage
with him, so that they could speak. She said she would not leave without the
children.
Defendant and R.L. walked out to the garage. He noticed defendant had
a gun in one hand and the bag in other. He turned around and returned to the
office to call the police. While there, R.L. heard Jo.L. screaming, "Mom, you're
A-4297-17T4 6 not supposed to be here. . . . What are you doing with the gun, Mom [?] Put it
down, stop waving it around." R.L. started to go into the garage, but he heard
defendant and Jo.L. continuing to scream at each other and went into the kitchen.
Jo.L. was studying at the kitchen table, when he noticed defendant
standing in the kitchen holding a gun. He testified that defendant asked him,
"Where's [your] dad's girlfriend? Where's the whore?" He said defendant held
the gun, pointed it in his direction, and waved the gun back and forth as she
spoke to him. Jo.L. stated that defendant was highly agitated, and he was scared
and nervous.
When R.L. entered the kitchen, he and defendant began to yell at each
other. Jo.L. testified that defendant and R.L. then began wrestling in the dining
room, and R.L. screamed at him to grab defendant's gun. Jo.L. said he froze.
He feared he might get shot, but he eventually called 9-1-1.
Meanwhile, Je.L. was upstairs, in his room. He testified that he heard
Jo.L. shouting. He walked out of his bedroom and saw defendant at the bottom
of the stairs. According to Je.L., defendant said "hi" and then walked into the
kitchen. He ran down the stairs and entered the kitchen, where he saw
defendant's bag on the kitchen counter. When R.L. returned from his office to
the kitchen, he observed Jo.L. sitting at the kitchen table, yelling at defendant .
A-4297-17T4 7 He then heard defendant state, "I'm going to shoot the whore. Where is the
whore?" When Jo.L. responded that no one else was in the house, defendant
stated, "Well, I'm going to shoot [R.L.]."
R.L. testified that defendant pointed the gun toward him and pulled the
trigger but "nothing happen[ed]." He said defendant pointed the gun toward the
ground and shook it, hoping to release the bullet that failed to discharge . She
then pointed the gun toward him a second time. R.L. lunged at defendant,
grabbed her hand with the gun, and held it against the freezer. R.L. dragged
defendant to the table in the dining room.
When Jo.L. and Je.L. walked into the room, R.L. asked them to call the
police and help him with the gun. R.L. testified that Je.L. came over to loosen
defendant's grip on the trigger. Je.L. punched defendant in the face with a closed
fist and took the gun from her. Jo.L. picked up the gun from the dining room
table, placed it on the counter and called 9-1-1.
Defendant and R.L. fell to the floor. Defendant was face-down, and R.L.
sat on top of her. He testified that defendant screamed he would "be dead if the
gun had gone off." Je.L. saw a stun gun on the floor, which he placed on the
table.
A-4297-17T4 8 Ji.L. was upstairs at the time, listening to music in his room. He testified
that he heard defendant's and R.L.'s voices. He also heard Jo.L. "shouting 'Mom'
over and over again." He walked out of his bedroom, but when he heard a male
voice say "gun," he returned to his room, closed the door, and moved a shelf and
dresser in front of the door. He said he did this "[t]o keep [himself] safe from
any potential danger from the gun."
Ji.L said he was concerned someone would get hurt, so he paced in his
room and thought about what was happening downstairs. He heard R.L. instruct
Jo.L. to call 9-1-1. He was scared and remained in his room for about ten
minutes, until Jo.L. knocked on his door. When Ji.L. went downstairs, he saw
defendant on the ground in the dining room. The police were present.
Sergeant Quentz was the first police officer to arrive in response to the 9-
1-1 call. He observed R.L in the living room. R.L. was on top of defendant,
holding her down, and Jo.L. was standing next to them. Quentz also observed
clothes, pills and other items strewn on the floor, as well as an unsecured gun
on the ground. He placed defendant in handcuffs.
Thereafter, two other police officers arrived. Quentz asked one of the
officers to unload the gun. The officer released the gun's magazine and noticed
it was loaded. The officer said there was a bullet in the chamber of the gun, but
A-4297-17T4 9 he could not remove it. Quentz helped him remove the bullet. They noticed the
magazine contained six hollow-point bullets.
One of the officers searched defendant. The officer found bullets and pills
in her pocket. Defendant was holding pills in her clenched hand. The officers
also found a knife and stun gun at the scene. Defendant's bag contained various
items, including a driver's license, paperwork, a Bible, a stuffed doll, a camera
case with thirty-two rounds of .22 caliber bullets, a stun gun case, and rubber
gloves. Inside the doll, the officers found a handwritten note from defendant to
Ji.L., which stated that she loved him.
Thereafter, detectives from the Morris County Sheriff's Office (MCSO)
searched a residence in New York, where defendant had been staying since she
was barred from the "marital" home. Among other items, the detectives
recovered a floral box containing letters to each of the children, savings bonds
addressed to the children, and a letter labeled "[L.A.F.'s] Final Wishes." In the
letter, defendant set forth her wishes regarding her funeral arrangements and
distribution of her property upon her death.
Sergeant Craig Brooks of the MCSO testified for the State as an expert in
the identification of firearms and their operability. He examined the gun
defendant possessed during the incident of May 17, 2015, as well as the gun's
A-4297-17T4 10 magazine and six rounds. He testified the gun could be operated with the safety
catch either on or off. He said a gun could be operable but still fail to discharge
a bullet.
The State also presented testimony from a witness who had conducted a
search of the State's firearms records. He said there was no record that defendant
had submitted any firearm application in New Jersey, and there was no record
showing a firearm permit had been issued to defendant in this State.
In addition, a forensic scientist with the New Jersey State Police testified
as an expert in drug analysis. She stated that the pills defendant was in
possession of during the incident on May 17, 2015, consisted of twelve tablets
of Zolpidem, twenty-two tablets of Hydrocodone, and one tablet of
Escitalopram.
After the State rested, defendant moved for a judgment of acquittal on
certain counts of the indictment. Judge Ahto granted the motion in part. The
judge dismissed counts eleven and twelve, charging possession of a weapon
(stun gun) for an unlawful purpose and possession of a prohibited device (stun
gun), respectively. The judge denied the motion as to the other counts.2
2 As a result of the judge's ruling, counts thirteen through twenty of the original indictment were renumbered eleven to eighteen. A-4297-17T4 11 Detective William Vanderhoof of the MTPD was called as a witness for
the defense. He said he responded to the scene at approximately 10:00 p.m. on
May 17, 2015. He took photographs and returned to police headquarters, where
he informed defendant of her Miranda3 rights. Defendant provided a statement
to the investigators. Vanderhoof testified that defendant did not exhibit any
signs of being under the influence and she did not appear to have any trouble
understanding him.
Detective Deanna Gardner, of the MCSO testified that on May 22, 2015,
she took 182 photographs of defendant. Gardner testified that defendant had
bruises on her face, left arm, right arm, legs, and foot. Gardner said she did not
know how or when defendant sustained these bruises.
The jury found defendant not guilty of first-degree attempted murder,
third-degree possession of a weapon (knife) for an unlawful purpose, and fourth -
degree unlawful possession of a weapon (knife). However, the jury found
defendant guilty on all other counts, other than the certain persons not to have
weapons count and three contempt counts to which defendant subsequently pled
guilty.
Defendant appeals and raises the following arguments:
3 Miranda v. Arizona, 384 U.S. 436 (1966). A-4297-17T4 12 POINT I ADMISSION OF OTHER CRIME EVIDENCE OVER DEFENDANT'S OBJECTION WAS AN ABUSE OF DISCRETION AND DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
POINT II TESTIMONY REGARDING THE PRESENCE OF PILLS AT THE SCENE OF DEFENDANT'S ARREST WAS IRRELEVANT AND UNDULY PREJUDICIAL AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT III THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL WAS ERROR.
POINT IV COMMENTS MADE BY THE PROSECUTOR DURING HER SUMMATION CONCERNING FACTS NOT IN EVIDENCE WAS GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V THE JURY INSTRUCTION ON ENDANGERING THE WELFARE OF A CHILD WAS ERRONEOUS WHICH MANDATES REVERSAL OF THE CONVICTIONS ON COUNTS THIRTEEN AND FOURTEEN.
POINT VI THE AGGREGATE OF ERRORS DENIED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
A-4297-17T4 13 II.
We first consider defendant's contention that Judge Taylor erred by
allowing the State to admit evidence of her other crimes, bad acts or wrongs
pursuant to N.J.R.E. 404(b). Defendant contends her emails, voicemails, and
funeral arrangements were not relevant to whether she intended to kill R.L. She
also contends the State could have presented testimony regarding her
relationship with R.L., without referencing the restraining order and the conduct
that led to the issuance of that order. She argues that the admission of the
N.J.R.E. 404(b) evidence deprived her of a fair trial.
We review trial courts' evidentiary rulings under an abuse of discretion
standard. State v. Green, 236 N.J. 71, 80-81 (2018) (quoting State v. Willis, 225
N.J. 85, 96 (2016)). Furthermore, we will not reverse the trial court's N.J.R.E.
404(b) determinations unless shown to be "a clear error of judgment." Ibid.
(quoting State v. Barden, 195 N.J. 375, 391 (2008)).
N.J.R.E. 404(b)(1) provides that admission of evidence of a person's other
crimes, wrongs, or acts is not permitted "to prove a person's disposition in order
to show that on a particular occasion the person acted in conformity with such
disposition." The rule provides, however, that such evidence may "be admitted
for other purposes, such as proof of motive, opportunity, intent, preparation,
A-4297-17T4 14 plan, knowledge, identity, or absence of mistake or accident when such matters
are relevant to a material issue in dispute." N.J.R.E. 404(b)(2).
In State v. Rose, 206 N.J. 141, 179 (2011), the Court held that the
"threshold determination" under N.J.R.E. 404(b) is whether the State's evidence
is intrinsic to the charged crime, in which case it must only satisfy rules relating
to relevancy. Evidence is intrinsic to a charged offense (1) it "'directly proves'"
the offense, or (2) pertains to "'uncharged acts performed contemporaneously
with the charged crime [that] facilitate the commission of the charged crime.'"
Rose, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d
Cir. 2010)).
Where the evidence the State seeks to introduce is not intrinsic to the
charged offense, the court must undertake an N.J.R.E. 404(b) analysis. Ibid. In
State v. Cofield, 127 N.J. 328, 338 (1992), the Court established a four-part test
to determine the admissibility of evidence under N.J.R.E. 404(b):
(1) [t]he evidence of the other crime must be admissible as relevant to a material issue;
(2) [i]t must be similar in kind and reasonably close in time to the offense charged;
(3) [t]he evidence of the other crime must be clear and convincing; and
A-4297-17T4 15 (4) [t]he probative value of the evidence must not be outweighed by its apparent prejudice.
Here, Judge Taylor held an evidentiary hearing on the State's motion to
admit the N.J.R.E. 404(b) evidence, at which R.L. testified. Thereafter, the
judge filed a thorough and well-reasoned written opinion. The judge noted that
the State sought to admit an amended final restraining order as well as the
underlying conduct that led to issuance of that order. 4
Judge Taylor found that the restraining order was intrinsic to the burglary
charges. The judge stated that to prove the two burglary counts, the State had
to establish defendant was not "licensed or privileged to enter" the home. See
N.J.S.A. 2C:18-2(a)(1). Because the restraining order barred defendant from
the home, it was intrinsic to the burglary charges. The judge found, however,
that the underlying conduct did not directly prove and was not intrinsic to the
charged offenses.
Judge Taylor then considered whether the conduct that led to the issuance
of the restraining order, defendant's email communications, and her voicemails
4 We note that a judge entered a temporary restraining order on May 12, 2012, and a final restraining order on June 20, 2012. Thereafter, defendant and R.L. engaged in negotiations regarding custody, which resulted in the issuance of an amended final restraining order. The State only sought to introduce the amended final order. A-4297-17T4 16 were admissible, applying the Cofield test. The judge found that the evidence
regarding defendant's relationship with R.L. and the children was relevant in
that it provided necessary background information. The evidence regarding
defendant's relationship with R.L. was reasonably close in time to the charged
offenses, there was clear and convincing evidence concerning the relationship,
and the probative value of the evidence was not outweighed by its apparent
prejudice.
The judge also found that defendant's emails and voicemail messages were
relevant to a material issue, specifically defendant's motive and intent in
attempting to kill R.L. The judge noted that the messages showed defendant's
"anger and bitterness" to R.L. This evidence also provided necessary
background information for the charged offenses.
In addition, Judge Taylor found that the uncharged acts of wrongdoing
were established by clear and convincing evidence, including R.L.'s testimony
and the communications themselves. The judge found that the probative value
of the evidence outweighed any prejudice to defendant, and there was no source
of evidence that was "equally probative." The judge cited Rose, in which the
Court noted that "a wide range of motive evidence is generally permitted," even
when prejudicial, "in recognition that [such evidence] may have "'extremely
A-4297-17T4 17 high probative value.'" 206 N.J. at 105 (quoting State v. Long, 173 N.J. 138,
164-65 (2002)).
The judge decided, however, that he would limit the evidence regarding
the conduct that led to the issuance of the restraining to the argument between
R.L. and defendant, defendant slapping R.L. in the face, and the destruction of
R.L.'s property. The judge stated that the trial judge would issue limiting
instructions to the jury with regard to any of defendant's prior threats to kill R.L.,
in order to limit any potential prejudice to defendant and to "channel the jury's
consideration" of the evidence.
On appeal, defendant contends Judge Taylor erred in his ruling on the
State's motion. She contends the N.J.R.E. 404(b) evidence was not relevant to
any material issue in the case, including her motive and intent. She asserts the
evidence did not directly prove any charged offense, the acts were not performed
contemporaneously with the charged offenses, and the court should have
excluded evidence that she slapped R.L. during the argument in May 2015. She
also contends the emails, voicemails, and her instructions regarding her funeral
were not relevant to whether she intended to kill R.L.
We are convinced these arguments lack sufficient merit to warrant
extended discussion. R. 2:11-3(e)(2). The record fully supports the judge's
A-4297-17T4 18 findings of fact and conclusion that the evidence was either intrinsic to the
charged offenses or otherwise admissible under Cofield. We conclude the trial
court did not abuse its discretion by allowing the State to present the N.J.R.E.
404(b) evidence at trial.
III.
Next, defendant argues that the trial court erred by allowing the State to
present testimony regarding the pills found at the scene on May 17, 2015. She
contends the evidence was irrelevant and unduly prejudicial.
Relevant evidence is that "having a tendency in reason to prove or
disprove any fact of consequence to the determination of the action," N.J.R.E.
401, and is admissible, absent a specific exception. N.J.R.E. 402. "Relevant
evidence 'need not be dispositive or even strongly probative in order to clear the
relevancy bar.'" State v. Santamaria, 236 N.J. 390, 405 (2019) (quoting State v.
Cole, 229 N.J. 430, 447 (2017)). "[T]he test of relevancy" is "whether such
evidence renders the desired inference more probable than it would be without
the evidence. . . . [The] test is broad and favors admissibility." State v. Deatore,
70 N.J. 100, 116 (1976).
Relevant evidence may, however, "be excluded if its probative value is
substantially outweighed by the risk of (a) undue prejudice, confusion of issues,
A-4297-17T4 19 or misleading the jury or (b) undue delay, waste of time, or needless presentation
of cumulative evidence." N.J.R.E. 403. "[T]here must be a 'very strong'
showing of prejudice to exclude evidence of a defendant's motive." State v.
Castagna, 164, 180 (App. Div. 2008) (quoting State v. Covell, 157 N.J. 554, 565
(1999)).
Here, Judge Taylor determined the evidence defendant was in possession
of the pills found at the scene was relevant to defendant's intent and purpose in
entering the home on the evening of May 17, 2015. The judge noted that
defendant had obtained with valid prescriptions, but they were not in their
bottles. The judge also noted the number of pills involved and their location at
the scene of the charged crimes. The judge observed that defendant brought the
pills into the home along with a gun, extra bullets, a taser, and a knife.
Judge Taylor found that these facts were relevant to the elements of the
offenses that the State had to establish at trial, including defendant's purpose and
intent for entering the home. The judge also found the probative value of the
evidence was not substantially outweighed by the prejudice to defendant from
its admission and should not be excluded under N.J.R.E. 403. We are convinced
the record fully supports the judge's findings.
A-4297-17T4 20 Defendant argues, however, that without evidence from an expert, opining
that the pills were capable of causing her death, the evidence that she possessed
the pills was irrelevant to the charged offenses. She contends the evidence did
not support the State's theory that she intended to kill herself after she killed
R.L. We disagree. There is sufficient credible evidence in the record to support
Judge Taylor's finding that the circumstances regarding defendant's possession
of the pills were relevant to defendant's motive and intent in entering the home
on the evening of May 17, 2015.
We reject defendant's contention that expert testimony was required to
show that if defendant had ingested the pills, they could have caused her death.
Based on its common experience and understanding, a reasonable jury could
infer defendant intended to take her own life, and that defendant believed if she
ingested the pills, they could cause her death. These matters were not "beyond
the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984).
IV.
Defendant also contends the trial judge erred by denying her motion for a
judgment of acquittal on count fourteen (originally count sixteen), in which she
was charged with second-degree endangering the welfare of a child, Ji.L, in
violation of N.J.S.A. 2C:24-4(a). Defendant argues that Ji.L. did not meet the
A-4297-17T4 21 definition of an abused or neglected child because he remained in his room and
was not present when the altercation that took place downstairs in the home.
She contends that Ji.L. suffered no harm. 5
Rule 3:18-1 provides that after the State has presented its case, the trial
court may enter a judgment of acquittal on one or more of the offenses charged
"if the evidence is insufficient to warrant a conviction." The court should "deny
the motion if 'viewing the State's evidence in its entirety, be that evidence direct
or circumstantial,' and giving the State the benefit of all reasonable inferences,
'a reasonable jury could find guilt beyond a reasonable doubt.'" State v. Felsen,
383 N.J. Super. 154, 159 (App. Div. 2006) (quoting State v. Reyes, 50 N.J. 454,
458-59 (1967)).
N.J.S.A. 2C:24-4(a) provides:
(1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
5 We note that in her brief, defendant does not argue that the judge erred by denying her motion for a judgment of acquittal on any other count of the indictment. Therefore, defendant is deemed to have waived any argument regarding the court's ruling on the other counts that were the subject of the motion. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-4297-17T4 22 (2) 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. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
[N.J.S.A. 2C:24-4(a).]
N.J.S.A. 9:6-1 defines "[a]buse of a child" as, in relevant part, "the
performing of any indecent, immoral or unlawful act or deed, in the presence of
a child, that may tend to debauch or endanger or degrade the morals of the child
. . . ." In addition, N.J.S.A. 9:6-8.21(c) states that an "[a]bused or neglected
child" includes a child under the age of eighteen
(4) . . . whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; . . .
A-4297-17T4 23 In State v. N.A., 355 N.J. Super. 143, 150-51 (App. Div. 2002), we noted
that N.J.S.A. 2C:24-4(a) does not require that any act or omission by the parent
or caretaker result in actual harm to the child. Rather, based on the plain
language of N.J.S.A. 9:6-8.21(c)(4)(b), it is sufficient that the parent or
caretaker's conduct exposes the child to a "'substantial risk'" of harm. Ibid.
We are convinced Judge Ahto did not err by denying defendant's motion
for a judgment of acquittal on the endangering charge pertaining to Ji.L. While
the State did not establish that Ji.L. was at substantial risk of physical harm, a
reasonable jury could find that defendant's actions placed Ji.L. at a substantial
risk of emotional harm, as a result of the altercation that was taking place in the
house.
We reject defendant's contention that the State could not establish that she
endangered the welfare of Ji.L. because he was not physically present in the
room where the altercation occurred. As we noted previously, Ji.L. was in the
house and heard what was going on downstairs. Ji.L. heard someone mention a
gun and, in fear, he barricaded himself in his room. Based on this evidence, a
reasonable jury could find, beyond a reasonable doubt, that defendant committed
an immoral or illegal act in Ji.L.'s presence.
A-4297-17T4 24 Defendant's arguments on this point lack sufficient merit to warrant
further comment. R. 2:11-3(e)(2).
Defendant further argues that the assistant prosecutor made certain
comments during her summation which were grossly prejudicial. She contends
the prosecutor's comments deprived her of a fair trial.
"[P]rosecutorial misconduct is not grounds for reversal of a criminal
conviction unless the conduct was so egregious as to deprive [the] defendant of
a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v.
Chew, 150 N.J. 30, 84 (1997)). "To justify reversal, the prosecutor's conduct
must have been clearly and unmistakably improper, and must have substantially
prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the
merits of his [or her] defense." State v. Nelson, 173 N.J. 417, 460 (2002)
(alterations in original) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
"[P]rosecutors are permitted considerable leeway to make forceful,
vigorous arguments in summation," but must generally limit their comments to
the evidence presented and reasonable inferences therefrom. Id. at 472. On
appeal, the court must assess the prosecutor's comments in the context of the
entire record. Ibid. "[A] 'fleeting and isolated' remark is not grounds for
A-4297-17T4 25 reversal." State v. Gorthy, 226 N.J. 516, 540 (quoting State v. Watson, 224 N.J.
Super. 354, 362 (App. Div. 1988)).
When counsel fails to object to a prosecutor's remarks, to warrant reversal,
the remarks must be "of such a nature as to have been clearly capable of
producing an unjust result." Id. at 540 (quoting R. 2:10-2). Generally, if there
is no objection, the remarks will not be deemed prejudicial. Timmendequas,
161 N.J. at 576. Counsel's failure to object suggests that counsel did not
consider the remarks to be prejudicial at the time they were made. Ibid.
Moreover, the failure to raise a timely objection deprives the trial court of the
opportunity to address any impropriety. Ibid.
Here, the assistant prosecutor stated defendant had certain "options" for
addressing the "issues" she had regarding the breakup of her relationship with
R.L. The prosecutor said one of those "options" was to see the psychiatrist
defendant had been seeing concerning visitation with the children. Defendant's
counsel objected to that comment.
The State concedes the prosecutor's reference to defendant's psychiatrist
was improper because it was not directly supported by testimony. However, this
was a fleeting, isolated comment. When viewed in the context of the
prosecutor's entire summation, the comment was not clearly and unmistakably
A-4297-17T4 26 improper. In addition, the trial judge issued a timely curative instruction,
informing the jury it must be guided by its own recollection of the evidence. We
must assume the jury followed the court's instructions. Nelson, 173 N.J. at 447.
The prosecutor continued her closing argument. She said the jurors had
taken an oath "to decide this case fairly and impartially and without passion and
sympathy." She concluded by stating that if the jurors "find the defendant not
guilty, she doesn't need your sympathy. And, if you find her guilty, she doesn't
deserve it. Thank you." Defense counsel did not object to these comments.
On appeal, defendant argues that the prosecutor's final remarks "were
meant to generate sympathy for the victim" and were "totally inappropriate."
Again, we disagree. It appears the prosecutor was merely attempting to remind
the jury that it must decide the case 'without passion and sympathy."
However, even if the comment is deemed to be improper, when viewed in
the context of the prosecutor's entire summation, the comment was not clearly
and unmistakably improper and did not substantially prejudice defendant's right
to a fair trial. It was an isolated, fleeting remark, and defense counsel's failure
to object indicates that counsel did not view the comment as prejudicial when it
was made.
A-4297-17T4 27 VI.
Defendant argues that the trial judge erred in instructing the jury on the
endangering charges in counts thirteen and fourteen (originally counts fifteen
and sixteen). Defendant contends the judge erred by instructing the jury that to
establish that a child was an abused child, the abuse "shall consist of the
following act or acts. The performing of any indecent, immoral or unlawful act
or deed in the presence of a child that may tend to debauch or endanger the
morals of a child."
Defendant contends the charge was not appropriate for this case. She
contends she did not perform any actions that had any impact upon the morals
of either child. Defendant contends the reference to acts that could "debauch,
endanger or degrade the moral" of a child only pertain to sexual offenses. She
therefore argues that the convictions on counts thirteen and fourteen should be
set aside.
"[A]ppropriate and proper charges are essential for a fair trial." State v.
Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613
(2004) (internal quotations omitted)). The trial court must provide the jury with
"a comprehensible explanation of the questions that [it] must determine ,
A-4297-17T4 28 including the law of the case applicable to the facts that the jury may find." Id.
at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
"Erroneous instructions on matters or issues that are material to the jury's
deliberation are presumed to be reversible error in criminal prosecutions." State
v. Jordan, 147 N.J. 409, 422 (1997) (citing State v. Warren, 104 N.J. 571, 579
(1986)). When reviewing the correctness of a jury instruction, we must examine
the entire charge. State v. R.B., 183 N.J. 308, 324 (2005).
Where, as in this case, no objection is raised to the instruction, we consider
the instructions for plain error and must determine if the instructions were
"clearly capable of producing an unjust result." State v. Alexander, 233 N.J.
132, 141-42 (2018) (citing R. 2:10-2). "The mere possibility of an unjust result
is not enough." Id. at 142 (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)).
"Rather, [t]he possibility must be real, one sufficient to raise a reasonable doubt
as to whether the error led the jury to a result it otherwise might not have
reached." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Here, the judge read nearly verbatim from the applicable Model Jury
Charge for N.J.S.A. 2C:24-4(a)(2) (Model Jury Charges (Criminal),
"Endangering the Welfare of a Child, Abuse or Neglect (Second Degree)" (rev.
A-4297-17T4 29 Mar. 9, 2015)). In defining the harm that would make a child abused or
neglected, the judge drew upon the relevant section of N.J.S.A. 9:6-1.
As stated previously, N.J.S.A. 9:6-1(e) defines "abuse of a child" as "the
performing of any indecent, immoral or unlawful act or deed, in the presence of
a child, that may tend to debauch or endanger or degrade the morals of the child."
We reject defendant's contention that the statute only pertains to conduct of a
sexual nature. Neither N.J.S.A. 9:6-1(e) nor N.J.S.A. 2C:24-4(a)(2) limits the
prohibited conduct to sexual conduct, or references "sexual conduct" or "sexual
offenses."
We are convinced the charge was appropriate. A reasonable jury could
find that defendant's alleged actions, which included aggravated assault upon
J.L, were indecent, immoral, or unlawful acts. The jury also could reasonably
find that the performance of such acts, while Je.L. and Ji.L. were at home, could
"tend to" endanger or degrade the morals of those two children.
Affirmed.
A-4297-17T4 30