Opinion
DOCKET NO. A-0961-14T1
09-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRY E. CAMPBELL, a/k/a TERRI E. INGRAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Michael J. Forte, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 13-10-0578. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Michael J. Forte, Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Terry E. Campbell was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (count one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts two and three); fourth-degree giving false information to law enforcement, N.J.S.A. 2C:28-4(a) (count four); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count five); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b) (count seven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eight); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count nine). After merging count three with count two, the trial judge imposed a seventeen-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, on count one; a consecutive 365-day term on count four; concurrent eight year term on count two; concurrent nine-month terms on counts five and nine; and concurrent four-year terms on counts seven and eight.
The court dismissed count six charging defendant with fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.
On appeal, defendant raises the following contentions:
POINT I: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S SUMMATION WHICH REFERENCED THE DEFENDANT'S PRESENCE IN THE COURTROOM AND THAT SHE WAS ABLE TO HEAR THE TESTIMONY OF ALL OTHER WITNESSES,
AND WAS THUS ABLE TO TAILOR HER TESTIMONY ACCORDINGLY.
POINT II: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY UNDER THE GUISE OF N.J.R.E. 404(b).
POINT III: THE TRIAL COURT'S LIMITING INSTRUCTION TO THE JURY WAS FATALLY DEFECTIVE SINCE, WHILE IT CONCLUDED THE TESTIMONY IN QUESTION WAS ADMISSIBLE AS RELEVANT TO THE ISSUE OF MOTIVE, ITS LIMITING INSTRUCTION INSTEAD REFERENCED THE ISSUE OF INTENT, WHICH WAS NOT A DISPUTED ISSUE IN THE PRESENT CASE. (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT [NINE] (POSSESSION OF A WEAPON UNDER MANIFESTLY INAPPROPRIATE CIRCUMSTANCES) INTO COUNT [EIGHT] (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE), AND BY FURTHER FAILING TO MERGE COUNT [EIGHT] AND COUNT [TWO] (AGGRAVATED ASSAULT) INTO COUNT [ONE] (ATTEMPTED MURDER). (NOT RAISED BELOW).
A. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IX CHARGING POSSESSION OF A WEAPON UNDER MANIFESTLY INAPPROPRIATE CIRCUMSTANCES INTO COUNT VIII CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.
B. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VIII (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) AND COUNT II
(AGGRAVATED ASSAULT) INTO COUNT I (ATTEMPTED MURDER).
POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The State agrees with defendant's contention in Point IV that the judge erred in failing to merge count nine into count eight and merge counts two and eight into count one. Accordingly, we remand for entry of an amended judgment of conviction (JOC) to correct this error. We affirm defendant's conviction and sentence.
I.
We derive the following facts from the record. Defendant and the victim were married in 2010, and lived in a home in Carneys Point owned by the victim since 1985. The victim testified at trial that the parties' marriage was "rocky"[;] they had "a lot of disagreements"[;] they discussed divorce on several occasions; and he initially filed for divorce in January 2013, but agreed not to proceed with the divorce for six months so that defendant could attend beauty school. When defendant did not attend, he retained an attorney and notified defendant on June 3, 2013, that he intended to proceed with the divorce.
The victim testified that he and defendant continued living together thereafter. On July 13, 2013, they hosted a party at their home for approximately ten guests. N.M., a friend of defendant's friend, M.S., was the first guest to arrive at approximately 3:00 p.m. Neither the victim nor defendant knew N.M. personally. Other guests arrived soon after, and the party got underway by 6:00 p.m. The victim testified that he had three beers and some rum punch, but was not intoxicated. N.M., on the other hand, became so intoxicated that he had to excuse himself from the party at approximately 10:00 p.m. to sit in his car and sleep off his intoxication.
We use initials to protect the identity of these witnesses.
The victim testified that he and defendant got along well during the party. After the last guest left around 1:00 a.m., he and defendant went upstairs to the bedroom at approximately 2:00 a.m. He noted at the time that the front and back door to the house were locked, the back door had the chain on, and no windows were open. He got undressed and laid down on the bed with defendant to watch some television; they then had sex. Afterwards, defendant got up to get a drink and stopped to look out the window, saying she wanted to see if N.M.'s car was still there. Defendant then went downstairs and returned with a bottle of vodka and offered some to him, which he declined. Defendant drank a glass of vodka, looked out the window again, and went back downstairs.
The victim testified that when defendant returned to the bedroom, he was laying on the bed with his back to the door and his eyes closed as he listened to the television. He felt defendant touch his forehead, and then felt a painful, burning sensation in his throat. He jumped up and saw blood coming from his neck and defendant standing next to him holding a knife; there was no one else in the room. He said to defendant, "Terri, why did you do this?" Defendant did not answer and only stared at him. He attempted to staunch the bleeding from his neck with the collar of his shirt, and rushed downstairs to flee out the back door, with defendant following close behind holding the knife.
The victim testified that he fumbled with the chain on the door, while defendant stood next to him, saying "[l]et me help you get the chain off the door . . . ." However, defendant attempted to hinder him from getting the door open and cut his forearm with the knife. When he pushed defendant away, she slipped in his blood and fell to the floor. He was able to open the door, and ran down the driveway past N.M.'s car toward a nearby highway to get help, with defendant chasing him to the end of the driveway, knife in hand. He was able to flag down New Jersey State Troopers Carl Kite and Jay Brook at a nearby highway intersection, whom he told that his wife had slit his throat.
The victim testified that he never heard the sound of the house alarm indicating that any of the doors had opened or closed while he was in the bedroom, and he believed that none of the doors to the house were opened and no one had come into or exited the house after the last guest left. He also testified that prior to the incident, defendant had recently withdrawn $5000 from a joint checking account, after having forged his signature on the withdrawal slip.
Carneys Point Police Patrolman Joseph Racite and Sergeant Dominic Rastelli responded to the scene. Racite testified that the victim told them defendant slit his throat, prompting Racite to go to the victim's house to find defendant. When he arrived there, he found defendant standing in the driveway wearing a nightgown and no shoes, and holding a cell phone. After receiving her Miranda rights, defendant told Racite that a male who had been at the party came back to attack the victim, and he may still be in the house. While other officers on the scene cleared the house and confirmed there was no one inside, defendant changed her story and told the police that the man had been at the kitchen table with the victim when he attacked the victim and then left in his car with the knife. Racite transported defendant to police headquarters for questioning and to obtain a recorded statement.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Sergeant Dale Vannamee testified that he video-recorded defendant's statement at police headquarters, wherein she stated that N.M. attacked the victim. Defendant stated that she and the victim were in bed, and that he was asleep when N.M. came into the bedroom, demanding money. Defendant stated that she did not actually see N.M. cut the victim's throat, but just that she was "watching T.V.[, then] blood was just everywhere." Defendant also stated that she called the police; however, Vannamee later confirmed there was no documentation she had made a call. Defendant testified that she could not get cellphone reception in order to make the call.
Vannamee testified that he went to the crime scene the evening of the incident and found two piles of vomit, a bloody towel, and a bloody paper towel in the driveway, as well as blood on the back stairs, handrail, back door, storm door, interior chain lock, floor nearby the doorway, on the stairs between the bedroom and the kitchen, in the bedroom near the wall light switch, and on the bed sheets. He also saw blood on the floor of the upstairs bathroom, in the sink, on the toilet paper dispenser and in wads of wet paper in the trash; however, the blood found in the bathroom was light pink, as it was mixed with water, as if someone were rinsing blood off.
Vannamee testified that the morning after the incident, he and Sergeant Brian Hogan went to N.M.'s house to question him. Vannamee and Hogan testified that N.M. appeared shocked by defendant's accusations and was extremely cooperative, giving them the clothing he wore the prior evening and the keys to his car. According to Vannamee, apparently unbeknownst to N.M., his clothing had blood stains on them; however, by the way the stains allowed for a creased, wrinkle pattern in the fabric, it appeared that the blood was wiped onto his clothes. There was vomit along the driver's side of N.M.'s car, as well as dried blood at the end of the door. After obtaining a search warrant for N.M.'s car, Hogan searched it and found blood on the interior, a kitchen knife, and $1300 shoved in between the driver's side front seat and doorframe. N.M. voluntarily went to police headquarters to give a statement.
N.M. testified that he became intoxicated while at the party and had to go out to his car to sleep it off. He vomited; defendant and M.S. both checked on him; and M.S. asked if he wanted a ride home, but he declined, feeling he would get himself together and drive home later. He also testified that at some point between dozing and waking, he heard the door to the house slam and saw the victim run out of the house and down the driveway, followed by defendant. He then dozed off again, but was awoken to defendant opening his car door and saying that everything was going to be alright and to go back to sleep. He also felt something being swiped across the front of his pants before he fell back asleep. He awoke one more time thereafter, and though still intoxicated, was feeling well enough to drive and so drove home, seeing along the way a police car with its lights on and someone sitting on the curb.
Dr. Seyedmehdi Jadali, a general surgeon experienced in trauma surgery, testified that the morning after the incident, the victim had surgery on his neck to repair his severed external jugular, and the laceration on his wrist above his forearm was repaired as well. Vannamee testified that after meeting with N.M., he and Hogan visited the victim at the hospital, where he gave them a statement. Vannamee testified that based on the victim's statement, the police no longer considered N.M. a suspect, and defendant was charged.
During her testimony, defendant went well beyond her statements to the police. For example, she testified that N.M. left the party and walked around the exterior of the house for two hours; the back door to the house was not locked and chained because she had left a guest outside; she had offered N.M. coffee, which he declined; N.M. asked if she would leave the back door unlocked so he could go inside and clean up; and she told N.M. that she would leave the door open and told him where the rags and towels were for him to clean up. Defendant testified that she heard the house alarm alert that the back door opened twice, indicating that N.M. had come inside and then left again. She also testified that to her surprise, N.M. was suddenly standing in the bedroom doorway with a black wallet in one hand, a knife in the other hand, and was counting a lot of money. At this time, the victim was asleep and snoring, laying on the side of the bed closest to the door, with his back to the door. N.M. demanded the combination to their safe, and though defendant tried to wake the victim to get that information, he continued snoring.
Although defendant testified that she did not see N.M. cut the victim's throat, she noticed that he had been cut on his arm and felt at his throat and started coughing. Defendant also testified that N.M. bumped into her as he fled from the bedroom and dropped his knife, which defendant caught, leaving the victim to find defendant holding the knife next to his side. When defendant followed the victim down the steps, she heard the faint click of the upstairs medicine cabinet, and the water running in the bathroom, indicating that N.M. was still in the house. Defendant testified that she dropped the knife near the stairs, and that when she came back to get her keys, the knife was gone. The defense rested after defendant's testimony.
II.
During summation, the prosecutor commented that defendant changed her testimony on the stand from what she had said in her statement to the police regarding the alleged 9-1-1 call:
She did not, did not call the police. She did not phone 911. She had ten to fifteen minutes after her husband left the house. Not one phone call. She even tells Detective Vannamee that. She tells Detective Vannamee; "I called the police. I called 911."
But then he checks. He testified [that] she didn't. But then on the stand she says, well, I was mistaken. I really didn't but I did tell him I did call them, but I really didn't. She changed a lot of stuff on the stand. We'll get to that later.
[(Emphasis added).]
Next, the prosecutor highlighted the increased detail in defendant's trial testimony versus her vague statement made to the police the night of the incident, and explicitly pointed out that defendant gave more detail after having listened to the testimony of the State's witnesses:
There was nothing of substance in that statement to police, nothing. Nothing that
she told you on the stand. You're being questioned about what happened to your husband, your wife, whatever, and that's what you tell police?
Don't you think you would be a little more forthcoming? Don't you think you would want to tell police everything that you observed, everything that you know? But it's a pretty nebulous statement.
He came in, he wanted money. The next thing I know, there's blood and then he runs out. Really? But then she makes sure when she testifies before you today that it was chock full of information and she had answers to everything; didn't she?
Everything, she had an answer for. We're hearing about a safe for the first time. I mean, talk about convenient, convenient testimony, 11 months after the fact and viewing the entire testimony this week, now all these facts come out.
[(Emphasis added).]
The prosecutor then alluded to the fact that defendant crafted her testimony in such a way to fill the gaps in her story in order to bolster her claim of innocence after having had the opportunity to hear all of the evidence presented against her:
It's up to you, the jury, to determine credibility. I ask you to weigh all of those factors; how these witnesses testified, what they said and how it all fit in, like the Defendant's statement. Oh, I'm sorry; four statements that she gave police.
The last one being so conveniently filled, so conveniently filled with detail
and facts to fill in all of those holes; how the door was locked. Because you see, it doesn't work if that door was locked.
If [the victim] comes down the steps and he comes to that door and that door is locked; okay? How did [N.M.] gain entry to the house? So you see, he had to have come in first and then locked the door. You see, that's her way of telling you and explaining that major issue away.
. . . .
So he comes in and locks the door behind him. That explains that away.
Her statement explains a lot away. The problem is, she did it here, today, before you and not when it counted, to the police 11 months ago. She explains all this before you after hearing all of the evidence.
[(Emphasis added).]
After completion of all summations, defense counsel objected to the prosecutor's comments, arguing they improperly suggested that defendant had manufactured her testimony. The judge overruled the objection, finding it was fair comment that highlighted the difference between defendant's testimony and her statements to the police. However, the judge issued a jury instruction as to how to consider all testimony.
On appeal, defendant argues in Point I that the prosecutor made generic accusations of tailoring strictly-prohibited by State v. Daniels, 182 N.J. 80 (2004). In the alternative, defendant argues that Daniels bars the prosecutor's specific accusations of tailoring because even though the prosecutor highlighted inconsistencies in her testimony, he referred explicitly to the fact that she was present in the courtroom, and having heard the testimony of other witnesses, tailored her testimony accordingly.
The State concedes that the prosecutor's comments violated Daniels, but counters that the comments challenged defendant's credibility and were more in alignment with the facts and holding in State v. Feal, 194 N.J. 293 (2008). The State argues that because the evidence against defendant was substantial, the prosecutor's comments were harmless.
Not every improper comment or question by a prosecutor will warrant reversal and a new trial. Feal, supra, 194 N.J. at 312; Daniels, supra, 182 N.J. at 96. A criminal conviction may be reversed when prosecutorial misconduct is so egregious that it deprived the defendant of the right to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
When reviewing whether prosecutorial misconduct rises to the level of necessitating reversal, we must consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1974). Ultimately, we weigh the "offending conduct . . . against the strength of the State's evidence" to determine whether "the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007).
In Daniels, our Supreme Court first addressed prosecutorial comments on the defendant's presence during trial, and particularly, accusations of tailoring made during summation. The Court identified two categories of tailoring: generic and specific. Daniels, supra, 182 N.J. at 98. The Court created a bright line rule strictly prohibiting generic accusations of tailoring "by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony" where there exists "no specific evidentiary basis" for the tailoring accusation in the record. Ibid.
In addition, the Court determined that prosecutors may make specific accusations of tailoring, in a particularly limited fashion, where the record does reflect evidence of tailoring. Id. at 98-99. In these instances, the prosecutor may draw the jury's attention to the fact that the defendant's prior testimony differs from his or her in-court testimony, or may point out how the defendant's testimony matches prosecution witness' testimony given at trial, where it differed in the past. Id. at 101. The Court held that, without more, such would be "fair comment." Ibid. However, even in these instances where the prosecutor makes specific accusations of tailoring, "the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony." Id. at 99.
The Court held that because the defendant has a constitutional right to be present at trial, "at no time" can the prosecutor "reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses." Id. at 99. The Court determined that "[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts those rights, permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees." Id. at 98. In this way, the Court found that "prosecutorial accusations of tailoring . . . undermine the core principle of our criminal justice system - that a defendant is entitled to a fair trial." Ibid.
The Court specifically stated that "even when the record indicates that defendant tailored his testimony," prosecutors are strictly prohibited from: (1) highlighting the fact that defendant was able to sit in the courtroom during trial; (2) pointing out the fact that defendant was able to listen to other witnesses testify; and (3) urging the jury to infer that defendant thus crafted or tailored his or her version of the events to reflect that testimony. Id. at 101.
The State relies on Feal to argue that the prosecutor's comments were proper. In Feal, during cross-examination and summation, the prosecutor highlighted the defendant's presence in the courtroom during the entirety of the prosecution's case, and also the defendant's opportunity to tailor his testimony according to the State's evidence against him. Feal, supra, 194 N.J. at 300-04. The Court acknowledged that "the prosecutor's references to defendant's presence at trial as a tailoring opportunity were a mistake" under Daniels. Id. at 313.
However, the Court differentiated the defendant's testimony given in Feal from that in Daniels, explaining that in Daniels, the "defendant gave testimony that conformed to that of the other witnesses [presented by the State] and was challenged solely because of his presence in the courtroom[;]" therefore, the "prosecutor's comment could have prejudiced defendant." Ibid. The Court distinguished the facts in Feal by noting that the defendant's testimony in that case "was obviously not cut to fit that of the other witnesses he saw," and that "the only 'tailoring' [the defendant] did was to back-peddle with respect to his earlier pretrial statement that likely would have convicted him if left unchanged." Ibid. Therefore, the Court found "it [did] not appear that the prosecutor's fleeting references to defendant's presence in the courtroom could have led the jury to a result it otherwise would not have reached," and therefore was not reversible error. Ibid.
In this case, the prosecutor commented that defendant had been present at trial "viewing the entire testimony [that] week." The prosecutor twice accused defendant of tailoring her testimony by "chang[ing] a lot of stuff on the stand," making "sure when she testifie[d] before [the jury] that [her testimony] was chock full of information and . . . answers to everything." The prosecutor called defendant's testimony "convenient," coming in eleven months after the fact, highlighting that it was given "after viewing the entire testimony" elicited by the prosecution. Critically, it could have been seen by the jury that defendant did in fact tailor her testimony to the testimony of the State's witnesses, unlike the defendant's untailored testimony in Feal.
Defendant's defense in this case was that N.M. was the assailant. She apparently hoped to convince the jury that N.M. had come into the house to rob the victim and slit his throat when he did not get any money. Because the State's witnesses, including the responding police officers, N.M., and even the victim himself, all testified differently from defendant, her credibility was a central issue at trial. Consequently, the prosecutor's comments cannot be characterized as "fleeting references," but as having a potentially significant impact on the jury. See Feal, supra, 194 N.J. at 313.
Ultimately, the State's attack on defendant's credibility was vital to the State's case. If the jury believed defendant, the jury might not have convicted her of attempted murder. Therefore, the prosecutor's comments constituted the kind of constitutional error strictly prohibited in Daniels. However, the prosecutor's comments were not sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise would not have reached. There was substantial and consistent evidence presented against defendant sufficient to conclude that the jury would have still reached the same result absent the prosecutor's comments. The State's evidence overwhelmingly proved that defendant attempted to murder the victim by slitting his throat and that N.M. had nothing to do with the crime. In all the circumstances of this case, the prosecutor's summation comments were harmless beyond a reasonable doubt and did not deprive defendant of a fair trial on the merits.
III.
Prior to the trial, the judge conducted an N.J.R.E. 404(b) hearing regarding several of defendant's prior bad acts that the State sought to admit into evidence. The victim testified at the hearing as to those prior bad acts. After conducting a Cofield analysis, the judge ruled that the following evidence was admissible for the limited purpose of proving motive: in December 2012, defendant threatened the victim that if he "did not stop fucking with her . . . this house won't be here," which he interpreted to mean that defendant was going to burn the house down because of his discussions about divorce, and which prompted him to obtain a temporary restraining order (TRO) against her. The judge found that this prior bad act was relevant to defendant's motive in wanting to harm the victim because he wanted a divorce; the TRO constituted clear and convincing evidence that defendant actually threatened him; and the probative value of the evidence was not outweighed by any prejudice to defendant.
State v. Cofield, 127 N.J. 328 (1992).
Defendant argues in Point II that it was error to admit this evidence because the threat was neither behavior similar to the charged offense nor close in time to the offense, and the State's proofs were not clear and convincing, as defendant's words were not actual threats but were subject to the victim's subjective interpretation. Defendant also argues that any minimal relevance the testimony possessed was outweighed by prejudice to her. Defendant submits that the victim's testimony that he intended to initiate divorce proceedings could have properly shown motive, absent any testimony regarding the threat.
We review a trial court's ruling on the admissibility of other crimes, wrongs, or bad acts for abuse of discretion. State v. Barden, 195 N.J. 375, 390-91 (2008). We afford great deference to the court's ruling and will reverse only where there was a clear error of judgment. Ibid. We discern no abuse of discretion here.
N.J.R.E. 404(b) provides as follows:
Except as otherwise provided by [N. J.R.E.] 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident when such matters are relevant to a material issue in dispute."'Because N.J.R.E. 404(b) is a rule of exclusion rather than a rule of inclusion,' the proponent of evidence of other crimes, wrongs or acts must satisfy a four-prong test." State v. Carlucci, 217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255 (2010)). Under the four-prong test, in order for other crime or wrongs evidence to be admissible under N.J.R.E. 404(b), the evidence of the other crime, wrong or act: (1) must be admissible as relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) must have probative value not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338.
Proof of the second prong is not required in all cases, but only in those that replicate facts in Cofield, namely, illegal drug possession. Id. at 131; see also State v. Skinner, 218 N.J. 496, 515 (2014). Because the present case does not involve illegal drug possession, this prong is not at issue. Thus, we reject defendant's argument that it was error to admit the prior bad acts evidence because the threat was neither behavior similar to the charged offense nor close in time to the offense.
To satisfy the first prong, the evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See N.J.R.E. 401 (defining "relevant evidence"). "Consequently, to be relevant, the other-crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan." P.S., supra, 202 N.J. at 255 (citations omitted). "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)) (citation omitted). Where the fact to be proven is an element of the offense, such as intent, the relevance prong is satisfied. See State v. Brown, 180 N.J. 572, 584-85 (2004) (holding that other crimes evidence is admissible where the State must prove an element of the offense).
Other crimes evidence may be admissible under N.J.R.E. 404(b) on the issue of motive. State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. 1971), certif. denied, 60 N.J. 138 (1972). "Generally, in 'motive' cases under N.J.R.E. 404(b) . . . the evidence in question is designed to show why a defendant engaged in a particular, specific criminal act." State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001). Motive evidence has been held admissible even when it does "no more than raise an inference of why a defendant may have engaged in criminal conduct, and even in the face of a certain degree of potential prejudice stemming from the evidence." State v. Calleia, 206 N.J. 274, 294 (2011). A "wider range of evidence is permitted to prove motive, so long as it remains a material issue in a case." Id. at 293-94. In contrast to pattern evidence, establishing motive does not require similarity between the other bad acts and the crime charged. Ibid. Other crimes evidence may be admissible under N.J.R.E. 404(b) if it discloses the defendant's mental intention or purpose when he committed the offense or to negate the existence of innocent intent. State v. J.M., Jr., 438 N.J. Super. 215, 223 (App. Div. 2014). A defendant's prior threat to the victim is admissible to show motive for committing the crime with which the defendant was charged. State v. Schubert, 235 N.J. Super. 212, 224 (App. Div. 1989), certif. denied, 121 N.J. 597, cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).
The third prong requires clear and convincing proof that the person against whom the evidence is being used actually committed the other crime or wrong. Carlucci, supra, 217 N.J. at 143; Cofield, supra, 127 N.J. at 338. The fourth prong is typically the most difficult to overcome. Barden, supra, 195 N.J. at 389. "Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice." Ibid. (citation omitted). The analysis incorporates balancing prejudice versus probative value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that the prejudice substantially outweigh the probative value of the evidence. State v. Reddish, 181 N.J. 553, 608 (2004). A "very strong" showing of prejudice is required to exclude motive evidence under this prong. State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008).
Under the fourth prong, the trial court must also consider if other less prejudicial evidence may be presented to establish the same issue on which the other crimes or wrongs evidence was offered. P.S., supra, 202 N.J. at 256. Additionally, in order to minimize "the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate." Barden, supra, 195 N.J. at 390 (citation omitted). Finally, the trial court must provide limiting instructions to inform the jury of the purposes for which it may and may not consider the evidence of defendant's uncharged misconduct, both when the evidence is presented and in the final instructions. Ibid.
Here, the judge properly admitted the prior bad acts evidence. The evidence of defendant's threat to the victim was clear and convincing and relevant to the material issue of defendant's motive with respect to the crimes against him. The evidence provided a plausible explanation why defendant committed the crimes - she was angry that he wanted a divorce. The evidence reasonably supported the inference that defendant was still angry when she slit his throat in July 2013. The probative value of the evidence was not outweighed by the risk of undue prejudice, the probative value was significant in terms of defendant's motive, and there was no other less prejudicial evidence to show her motive. Moreover, the court gave the jury an appropriate limiting instruction under N.J.R.E. 404(b), as we now discuss.
IV.
The judge gave the jury a limiting instruction as to how to consider the victim's testimony about the threat, stating that it would serve the limited purpose of proving defendant's intent. This deviated from the judge's ruling admitting the evidence for the limited purpose of proving motive. The judge gave a similar instruction during the final charge. Defense counsel did not object to either instruction. Defendant argues for the first time on appeal in Point III that intent was not a disputed issue in this case, making the jury's consideration of intent, rather than motive, fatally defective to the effect of denying her a fair trial. We disagree.
When Rule 404(b) evidence is admitted, the trial court must instruct the jury "as to the permissible use of such evidence and its limited relevance." State v. Winder, 200 N.J. 231, 255 (2009). Limiting instructions "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Ibid. (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). This instruction should be given at the time the Rule 404(b) evidence is presented to the jury, and also during the final jury charge. State v. Fortin, 189 N.J. 579, 601 (2007) (citing State v. Blakney, 189 N.J. 88, 93 (2006)).
When a defendant fails to object to an error in the jury charges, we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under that standard, we disregard any alleged error 'unless it is of such a nature as to have been clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "The mere possibility of an unjust result is not enough. To warrant reversal [on appeal], an error at trial must be 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. Jenkins, 178 N.J. 347, 361 (2004)). Because the Rule 404(b) evidence was admissible to prove motive, we must consider whether there was plain error in the failure to adequately instruct the jury as to the appropriate limited use of the evidence, specifically, whether the limiting instructions given left the "jury wholly unguided as to how to use the evidence for such limited purposes." State v. G.V., 162 N.J. 252, 262 (2000).
In State v. Oliver, 133 N.J. 141 (1993), the Court explained what kind of Rule 404(b) instructional errors were considered harmful. The Court held that while trial courts must explain that prior bad acts evidence cannot be used to determine that the defendant was a bad person or for propensity purposes, courts must also "explain the relationship between the other-crime evidence and the issues and facts on which it could be considered." Id. at 158. The Court found reversible error where the trial court did not "clearly instruct the jury on how it could use the other-crime evidence." Id. at 159. The Court determined that a mere recitation of the basis on which the evidence had been admitted, such as plan or intent, is insufficient - the court must also "relate those abstract issues to the facts." Ibid.
Conversely, the Court has found harmless error where the trial court inadequately instructed the jury on properly admitted other crimes evidence, when the court had in fact given instruction as to how the other-crime evidence could be used and how it could not be used, limiting the jury's use of the testimony to prove motive and intent, and, most importantly, where overwhelming evidence of guilt was presented. State v. Marrero, 148 N.J. 469, 496 (1997).
In this case, the judge used motive and intent interchangeably in the jury charge, to the extent that the judge legally defined "purposefully," as when a person "acts with design, with a specific intent, with a particular object or purpose, or if she means to do what she does," and also when the judge instructed the jury to consider intent when considering whether defendant possessed a weapon with the intention to use it against the victim in an unlawful manner. "When offered as a means of proving intent, other-crimes evidence is often indistinguishable from motive." J.M., Jr., supra, 438 N.J. Super. at 223.
Taken in context with the entire jury charge, the mistake in the limiting instructions did not produce an unjust result. This matter is similar to the facts in Marrero, where the evidence overwhelmingly established the defendant's guilt. Accordingly, we discern no reason to reverse based on the judge's use of the word intent in the limiting instructions. The instructions did not unfairly prejudice defendant in light of the overwhelming evidence of her guilt.
V.
Lastly, defendant contends in Point V that her sentence is excessive. She argues that the judge erred in finding aggravating factor two, "[t]he gravity and seriousness of harm inflicted on the victim[,]" N.J.S.A. 2C:44-1(a)(2); aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); and aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6). Defendant also argues that the judge erred in failing to find mitigating factor seven, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1(b)(7); and mitigating factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8). She further argues that the judge erred in imposing a consecutive sentence on count four.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014) As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We have considered defendant's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge at sentencing. The judge did not violate the sentencing guidelines, the record amply supports the judge's findings on aggravating and mitigating factors, and the judge imposed the consecutive sentence in accordance with the Yarbough guidelines. The sentence is clearly reasonable and does not shock our judicial conscience.
State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). --------
Defendant's conviction and sentence are affirmed. The matter is remanded to the trial court for entry of an amended JOC merging count nine into count eight and counts two and eight into count one.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION