                        NOT FOR PUBLICATION WITHOUT THE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-0471-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RASHEEN T. KELLY,

     Defendant-Appellant.
————————————————————————————————

              Argued April 27, 2017 – Decided August 7, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Salem County, Indictment No.
              14-04-0271.

              Stephen W. Kirsch, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph   E.   Krakora,   Public   Defender,
              attorney; Mr. Kirsch, of counsel and on the
              brief).

              Brian Uzdavinis, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Mr.
              Uzdavinis, of counsel and on the brief).

PER CURIAM

        Defendant Rasheen T. Kelly appeals from his judgment of

conviction and sentence after a jury found him guilty of two
counts     of    third-degree     aggravated    assault   on   a   corrections

officer, N.J.S.A. 2C:12-1(b)(5)(h).              He presents the following

arguments for consideration:

                                    POINT I

                THE JURY INSTRUCTION ON SELF-DEFENSE – THE
                ONLY DEFENSE AT ISSUE IN THE CASE: (1) BADLY
                MISINFORMED THE JURY ON THE CORRECT BURDEN
                OF PROOF; (2) RAISED THE ISSUE OF "RETREAT"
                AND THEN DID NOT EXPLAIN HOW THAT DOCTRINE
                WOULD AFFECT THE CASE; AND (3) WAS NOT
                INCORPORATED INTO THE INDIVIDUAL COUNTS
                AGAINST DEFENDANT, THEREBY ALLOWING THE JURY
                TO CONVICT BASED UPON THE SIMPLE ELEMENTS OF
                THE CRIMES CHARGE WITHOUT EVER CONSIDERING
                THE APPLICABILITY OF SELF-DEFENSE TO THE
                CASE. (NOT RAISED BELOW).

                                    POINT II

                THE    SENTENCE     IMPOSED      IS    MANIFESTLY
                EXCESSIVE.

After reviewing the record and law, we reject these arguments

and affirm the trial court.

                                       I.

      On March 10, 2014, defendant was serving a prison sentence

at   the   Salem      County   Correctional     Facility.      That   morning,

corrections Officer Eric Perez was dispensing medications to the

inmates     in     defendant's     housing     unit.      According   to    the

facility's procedures, before an inmate receives medication, he

first returns to his cell to retrieve a cup of water.                  He may




                                       2                              A-0471-15T2
not    bring     anything      else       with    him     when    he     receives         his

medication.

       Defendant       required    Motrin       three   times     a    day    because      he

recently had surgery on his finger.                 On the morning of March 10,

he did not comply with the facility's procedures when he went to

receive his Motrin.           He had his cup of water, but he also had a

"bag of mackerel in his pocket."1                   Officer Perez consequently

told defendant he had to take the bag of mackerel back to his

cell before he would dispense his Motrin to him.                                  Defendant

replied,    "This      is   bullshit,"      but    returned      to    his    cell.         As

defendant       came   back   to    receive       his   medication,          he    "started

making comments."           Officer Perez told defendant "if he were to

continue he was going to get lockdown," or Officer Perez would

call for assistance.              Defendant replied, "This fucking jail's

whack.     Fuck you and this jail."                 Officer Perez consequently

called for assistance.

       Officer Perez then told everyone other than defendant to

"lock down their cells."               He told defendant to "get on the

ground."        Defendant      then   punched       him    "in    the    left       cheek."

Officer Perez fell backwards, and defendant "got on top of" him.

Defendant      "kept    swinging"     and    hitting      Officer       Perez,      saying,

"I'm    going    to    fucking     kill    you."        Officer       Perez       could   not

1
      Defendant got the mackerel "from the commissary."



                                            3                                       A-0471-15T2
remember for how long this went on, but "it felt [like] a long

time."      When     the     unit's      doors      opened     for    the     two-officer

response team to enter, defendant focused his attention on them,

enabling Officer Perez to get away from defendant.

     Defendant squared off with the two officers and punched one

of them in the face.           Defendant resisted, but the two officers

eventually       "secured    him    to    the       ground"    and     handcuffed     him.

Officer Perez's lip was bleeding, so he left the unit to seek

medical attention.

     According to the facility's procedures, defendant required

a   medical      examination       because         he   had   been     in    a   physical

altercation      with   an    officer.            The   two   officers       consequently

began    escorting      defendant        to   the       medical      unit.       Defendant

"continued to kick and scream and holler."                     The officers brought

him back to the ground to regain control; one of the officers

claimed defendant bit him.

     The officers eventually brought defendant to the medical

unit,    where    defendant     started           spitting    blood    at    them.      The

officers brought defendant back to the ground and put a spit

mask on him.       Throughout this process, the two officers admitted

to striking defendant in order to obtain his compliance with the

facility's procedures.          As one officer testified:

            You   can   use  pain                   compliance,        joint
            manipulation, or wrist                  lock.    You       know,



                                              4                                   A-0471-15T2
            there's pressure points that you're able to
            utilize on the body.    You get training in
            all of those things.   Sometimes they work;
            sometimes they don't.

            If you don't get compliance right away, you
            just have to keep trying to get compliance
            by using those kinds of tactics.

      Defendant provided a far different account of the incident,

testifying the officers attacked him, and he defended himself.

He admitted he brought mackerel with him to receive his Motrin,

but he also said Officer Perez repeatedly called him a "pussy"

and "smart ass."        Defendant also testified Officer Perez told

him he was "not tough," and "they'd fuck [him] up."                       After

Officer Perez called for assistance, he "attacked" defendant,

who   proceeded    to    defend      himself.       Defendant     admitted    he

"probably got out of hand with it."

      He denied resisting the two officers while they escorted

him to the medical unit.             Defendant denied biting one of the

officers.     He testified an officer punched his face without

provocation "a couple more times . . . in front of the nurse" in

the medical unit.        When the officers subsequently took him to

the shower, they continued to beat him.                  After the series of

altercations,     he   could   not    "see   out   of"   his   eyes.   Defense

counsel then played a video of defendant's initial altercation




                                        5                              A-0471-15T2
with Officer Perez, but defendant does not provide it in his

appendix on this appeal.2

     On April 30, 2014, a Salem County grand jury returned an

indictment charging defendant with three counts of third-degree

aggravated     assault   on    a   corrections   officer,    N.J.S.A.    2C:12-

1(b)(5)(h).      Before trial, defense counsel said, "We approved

the jury charges, as well as the verdict sheet."                      After the

first day of trial, the court asked defense counsel, "Anything I

don't have in that you do want in" with respect to the jury

instructions?     Defense counsel said no.         After the second day of

trial, the court asked defense counsel, "Are we good to go" with

respect   to   the   jury     instructions?      Defense    counsel    replied,

"Yes, Your Honor."

     After instructing the jury on aggravated assault, the court

issued the following instruction on self-defense:

                [Defendant] contends that if the State
           proves he used, or threatened to use force
           upon the other person, that such force was
           justified – justifiably used for his self-
           protection.   The statute relating to self-
           protection, which we call justification, or
           self-defense, reads as follows.




2
     We again note the failure to include a complete record of
items often impedes appellate review. See Johnson v. Schragger,
Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div.
2001).




                                        6                               A-0471-15T2
     The use of force upon or toward another
person   is   justifiable   when   the    actor
reasonably believes that such force is
immediately necessary for the purpose of
protecting   himself   against   the   use   of
unlawful force, by such other person, on the
present occasion.

     In other words, self-defense is the
right of a person to defend against any
unlawful force.    Self-defense is also the
right   of  a   person   to  defend   against
seriously threatened unlawful force, that is
actually pending, or reasonably anticipated.

     When a person is in imminent danger of
bodily harm, the person has the right to use
force, when that force is necessary to
prevent the use against him, of unlawful
force.

     The force used by [defendant] must not
be   significantly  greater,   and   must   be
proportionate    to   the    unlawful    force
threatened or used against him.       Unlawful
force is defined as force used against a
person, without the person's consent, in
such a way that the action would be a civil
wrong or a criminal offense.

     If the force used by [defendant]      was
not    immediately    necessary for        his
protection, or if the forced used           by
[defendant] was disproportionate in        its
intensity, then the use of such force       by
[defendant], was not justified, and        the
self-defense claim fails.

     A person may also use non-deadly force
in his own defense.      If you find that
[defendant] did use non-deadly force to
defend himself, then you must determine
whether the force was justified.   The same
reasonably (Indiscernible) standard that I
explained to you when discussing – strike
that, we have to –



                      7                           A-0471-15T2
     Let me start again. A person, as I've
indicated, may use non-deadly force in his
own defense.   If you find that [defendant]
did use non-deadly force to defend himself,
then you must determine whether the force
was justified.

     A person may use non-deadly force to
protect himself if the following conditions
exist. (1) [T]he person reasonably believes
he must use force.        (2) [T]he person
reasonably believes that the use of force
was immediately necessary. (3) [T]he person
reasonably believes he used force to defend
himself against unlawful force; and, (4) the
person reasonably believes that the level of
the intensity of the force he uses is
proportionate to the unlawful force he is
attempting to defend against.

     Remember, only if you conclude that the
– in using non-deadly force, [defendant]
reasonably believed he was defending against
unlawful force, is a defense available to
him.

     The State has the burden to prove to
you, beyond a reasonable doubt, that the
defense of self-defense is untrue.      This
defense only applies if all the conditions
or elements previously described exist. The
defense must be rejected if the State
disproves any of the conditions, beyond a
reasonable doubt.

     The same theory applies to the issue of
retreat.   Remember that the obligation of
[defendant] to retreat only arises if you
find that [defendant] resorts – strike that.
I apologize.

     Okay.   If you find that the State has
proven every element, beyond a reasonable
doubt, and, you also find that it is
inappropriate to disallow the claim of self-



                     8                         A-0471-15T2
         defense, then you must find [defendant]
         guilty.3  If you find the State has proven
         every element, beyond a reasonable doubt, of
         the underlying offenses, but you also find
         that it is appropriate to allow the claim of
         self-defense, then you must find him not
         guilty.

              If the State has failed to prove any of
         the elements of the underlying offenses,
         beyond a reasonable doubt, then you must
         find him not guilty.

              So, basically, what we're saying here
         is, first, you determined if the State's
         proven it's case – has failed to prove its
         case, beyond a reasonable doubt.     If it's
         failed to prove it, your verdict will be not
         guilty.

              Then you go on – if you find that the
         State   has  proved   the   case, beyond  a
         reasonable doubt, but has also – there is
         also this defense of self-defense, your
         answer would revert from guilty to not
         guilty,   because   self-defense  would  be
         applicable.

              If you find that [defendant] is guilty
         of one of the crimes, and the self-defense
         does not apply, then he would be guilty.

              I have been reading from these legal
         instructions, which I'm sure is obvious to
         you.   I have given – I will be giving you
         two copies of the same instructions for your
         use in the jury room.




3
     We note that the trial transcript reflects the court said
"inappropriate to disallow," but we recognize the court either
said or meant to say "inappropriate to allow," given the
entirety of the paragraph. Defendant's brief acknowledges that
the transcribed language "makes even less sense."



                              9                         A-0471-15T2
                  Be aware that you may also – you must
             consider   these   instructions   in   their
             entirety, and that I am available to assist
             you in understanding the instructions if you
             need further assistance.

      The    jury    subsequently         convicted      defendant     of    assaulting

Officer     Perez    and     the   other    officer      who   testified     defendant

punched him in the face, but acquitted defendant of the charge

he assaulted the officer who claimed defendant bit him.

      The trial court sentenced defendant to a prison term of ten

years for assaulting Officer Perez and a consecutive prison term

of five years for assaulting the other officer.                       The trial court

granted the State's application for an extended term for count

one under N.J.S.A. 2C:44-3(a), because it found defendant was

over twenty-one years old, convicted of five indictable offenses

on separate occasions, and the most recent offense occurred less

than ten years ago.

      The      court       noted    defendant       had        over    ten     juvenile

adjudications,         one    disorderly      persons      conviction,       and    five

indictable convictions.             The court therefore found aggravating

factors      three,        N.J.S.A.       2C:44-1(a)(3)        (recidivism),       six,

N.J.S.A. 2C:44-1(a)(6) (criminal history), and nine, N.J.S.A.

2C:44-1(a)(9) (deterrence).                The court said it saw the video,

and "there's an absolute need to deter not only [defendant], but

the   public    in     general     from    this   type    of    conduct."       Defense




                                            10                                 A-0471-15T2
counsel told the court that he "conceivably, can't make [an]

argument regarding the mitigating factors."                       The court declined

to find any.         The court also noted it had to sentence defendant

to    consecutive       terms    under     N.J.S.A.    2C:44-5(i)         because     the

convictions were for assaulting corrections officers.                       Defendant

now appeals.

                                           II.

       Jury charges "must provide a 'comprehensive explanation of

the questions that the jury must determine, including the law of

the   case     applicable       to   the   facts   that     the    jury   may   find.'"

State v. Singleton, 211 N.J. 157, 181-82 (2012) (quoting State

v.    Green,    86   N.J.   281,      287-88     (1981)).         Because   clear     and

correct jury charges are essential to a fair trial, State v.

Adams,   194     N.J.    186,    207   (2008),     "erroneous       instructions       on

material points are presumed to possess the capacity to unfairly

prejudice the defendant."              State v. McKinney, 223 N.J. 475, 495

(2015) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

However, an error in the charge that could not have affected the

jury's deliberations does not amount to reversible error.                          State

v. Docaj, 407 N.J. Super. 352, 365 (App. Div.), certif. denied,

200 N.J. 370 (2009).             In that regard, "[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




                                            11                                  A-0471-15T2
prejudice the defendant's case."             Singleton, supra, 211 N.J. at

182.       Moreover,   we    presume    jurors     follow    a    trial     court's

instructions.     See State v. Brown, 180 N.J. 572, 583 (2004).

       A   self-defense      charge    is    required   when      "any     evidence

raising the issue of self-defense is adduced, either in the

State's or the defendant's case."             State v. Kelly, 97 N.J. 178,

200 (1984).     If such evidence is present, "then the jury must be

instructed     that    the    State    is    required   to     prove      beyond    a

reasonable doubt that the self-defense claim does not accord

with the facts; [and] acquittal is required if there remains a

reasonable doubt whether the defendant acted in self-defense."

Ibid.; see also State v. Gentry, 439 N.J. Super. 57, 63 (App.

Div. 2015) (holding that a self-defense instruction is required,

even when not requested, where the evidence indicates a rational

basis for instructing it).

       Here, defendant did not object to the self-defense charge,

nor did he otherwise raise the issue he now argues on appeal.

Because defendant did not object at trial, we review the charge

for plain error.       R. 1:7-2; R. 2:10-2; McKinney, supra, 223 N.J.

at 494.     Plain error in this context is "[l]egal impropriety in

the charge prejudicially affecting the substantial rights of the

defendant     sufficiently      grievous      to   justify       notice    by      the

reviewing court and to convince the court that of itself the




                                        12                                 A-0471-15T2
error    possessed      a    clear     capacity         to    bring    about       an    unjust

result."    Adams, supra, 194 N.J. at 207 (alteration in original)

(quoting    State      v.    Jordan,    147       N.J.   409,    422    (1997)).             When

reviewing a charge for plain error, an appellate court must not

examine the "portions of the charge alleged to be erroneous in

isolation; rather, 'the charge should be examined as a whole to

determine its overall effect.'"                    McKinney, supra, 223 N.J. at

494 (quoting Jordan, supra, 147 N.J. at 422).

    Defendant       argues      the     trial      court      issued    erroneous            jury

instructions in three respects: (1) it minimized the State's

burden    regarding         self-defense,         (2)    it    mentioned       a     duty      to

retreat without explaining it, and (3) it failed "to incorporate

the absence of self-defense into each of the substantive counts

as effectively an element that the State must disprove before a

conviction can be returned."                We disagree.

    Defendant        argues     the     trial       court's      "instructions,              when

considered on the whole, do not clearly and unequivocally inform

the jurors that they should acquit defendant unless the state

disproves self-defense beyond a reasonable doubt."                              The court,

however, explicitly told the jury that "[t]he State has the

burden to prove to you, beyond a reasonable doubt, that the

defense of self-defense is untrue."                      The court then said, "The

defense    must   be    rejected       if    the    State      disproves       any      of    the




                                             13                                         A-0471-15T2
conditions, beyond a reasonable doubt."                     These two sentences

unequivocally told the jury the State had the burden to disprove

defendant's claim of self-defense.                We presume the jury followed

these instructions and held the State to its burden.                      See Brown,

supra, 180 N.J. at 583.

       Defendant      next    argues,      "The     judge's       mention    of    the

'obligation of [defendant] to retreat' was plain error, clearly

capable of affecting the result when the judge did not clearly

inform the jury of the mistake and correct the mis-charge."                        The

record    does    not    support    this       argument     either.       The     court

immediately realized it was issuing an irrelevant charge and

told     the   jury      to   "strike      that"        without    completing      its

description of the duty.            Defendant contends the court did not

explain what it intended to strike, but the context clearly

shows it intended to strike its partial description of the duty

to retreat.       We presume the jury followed this instruction and

did not consider any duty to retreat during its deliberations.

See ibid.

       Defendant relies on State v. Coyle, 119 N.J. 194 (1990), to

argue    the   trial     court   should     have    "incorporated"        the     self-

defense     charge      within   the    aggravated        assault      charge.       We

disagree.      In Coyle, our Supreme Court addressed a trial court's

obligation       to    clearly     instruct       the    jury     on   the   State's




                                          14                                 A-0471-15T2
obligation    to    disprove    "beyond      a    reasonable     doubt   that   the

purposeful     killing    was    not    the       product   of     passion      [or]

provocation" in a capital murder case.                Id. at 221.        The Court

noted that "[i]f there is sufficient evidence of passion [or]

provocation, a trial court must instruct the jury that 'to find

murder it must be convinced beyond a reasonable doubt that the

accused did not kill in the heat of passion.'"                     Id. at 221-22

(quoting State v. Grunow, 102 N.J. 133, 145 (1986)).                     The Court

further noted the trial court

             instructed the jury that if it found beyond
             a reasonable doubt that the killing was
             purposeful, it should convict defendant of
             murder.     Nowhere in the initial charge
             concerning purposeful murder did the court
             refer to the State's burden of disproving
             passion [or] provocation beyond a reasonable
             doubt.    The trial court's initial charge
             concerning purposeful murder failed to make
             clear that if there is evidence of passion
             [or] provocation, a jury cannot convict for
             murder   without   first finding  that   the
             defendant did not kill in the heat of
             passion.

             [Id. at 222.]

      Although the trial court in Coyle later instructed the jury

on the role of passion or provocation, the Court deemed the

belated charge ineffective, particularly because the trial court

had explained in the initial charge on purposeful murder that

the   jury   need   not   consider     the       lesser-included    offenses     of

aggravated manslaughter or manslaughter, unless it determined



                                       15                                 A-0471-15T2
that the State had failed to prove murder beyond a reasonable

doubt.   Ibid.

    In this case and in contrast to Coyle, the trial court

clearly and unambiguously instructed the jury on the law of

self-defense and its relation to aggravated assault.          It never

told the jury to stop deliberating if it found the State proved

the elements of aggravated assault.      No confusion occurred when

the court issued sequential charges on aggravated assault and

self-defense, which is a defense unrelated to the elements of

aggravated   assault.      Significantly,      the   Court   in      Coyle

explained:

          There is nothing inherently wrong with a
          sequential charge. Such charges assure that
          a jury renders 'a just verdict by applying
          the facts to the law as it is charged.'
          Indeed, there is nothing inherently wrong
          with the model charge for purposeful murder.
          Absent evidence of passion [or] provocation,
          sequential   charges   usually    provide  a
          framework for orderly deliberations.

          [Id. at 223 (citations omitted).]

We therefore conclude the trial court did not commit plain error

when it sequentially instructed the jury on aggravated assault

and self-defense.

    Defendant    also   argues   the   trial   court's   sentence       was

excessive.   He contends the trial court never found an extended

term was necessary to protect the public.      He states:




                                  16                              A-0471-15T2
            The fact that State v. Pierce, 188 [N.J.]
            155,   168-[69]   (2006),   holds   that  the
            "protection of the public" issue is now to
            be   considered    after   the    finding  of
            eligibility for the extended term, i.e.,
            when weighing the aggravating and mitigating
            factors, does not change the fact that it
            must, eventually, nevertheless be addressed
            by the judge in order to actually impose a
            sentence within the extended-term range.

In     making      this      argument,       defendant           clearly     overlooked

additional, important language from Pierce, explaining:

            [A trial] court may consider the protection
            of the public when assessing the appropriate
            length of a defendant's base term as part of
            the   court's   finding   and   weighing   of
            aggravating factors and mitigating factors.
            The finding is not a necessary condition,
            however,   to   the   court's   determination
            whether defendant is subject to a sentence
            up to the top of the extended-term range.

            [Id. at 170 (footnote omitted).]

We therefore decline to accept defendant's argument.

       Defendant      next   argues    the       trial    court      erred   because   it

failed     to   "be    careful       when    assessing         the     aggravating     and

mitigating circumstances that are used to set the length of an

extended    term      not    to   double-count       the       prior    offenses     which

triggered the imposition of that term."                    We disagree.       Defendant

had five convictions for indictable offenses.                           N.J.S.A. 2C:44-

3(a)   requires       only   two     convictions         for   indictable     offenses.

Moreover, once the trial court found defendant eligible for an

extended    term,     the    trial    court      still     had    the    discretion    to



                                            17                                  A-0471-15T2
sentence defendant to the same minimum sentence as it could have

beforehand.     Pierce, supra, 188 N.J. at 169.             The trial court

considered at least two of defendant's convictions when it found

him eligible for an extended term, but that consideration did

not     constrain   the    court's    discretion   when    it   subsequently

sentenced him.

       Defendant argues the trial court "ignored two mitigating

factors, which necessarily applied here: the fact that defendant

did not cause or threaten serious bodily injury and did not

contemplate    causing     such   injury.   N.J.S.A.      2C:44-1(b)(1)    and

(2)."     Mitigating factor one states, "The defendant's conduct

neither caused nor threatened serious harm[.]"              N.J.S.A. 2C:44-

1(b)(1).     The second mediating factor states, "The defendant did

not contemplate that his conduct would cause or threaten serious

harm[.]"      N.J.S.A. 2C:44-1(b)(2).        We agree with defendant's

trial counsel that these arguments are not conceivable given the

facts of this case.        Defendant punched Officer Perez in the face

multiple times and the other officer once.                 These acts were

clearly capable of causing serious harm, and defendant could not

have    committed   them    without   contemplating    that     result.     We

therefore affirm the trial court's sentence.

       Affirmed.




                                      18                             A-0471-15T2
