                        NOT FOR PUBLICATION WITHOUT THE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-5162-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

YASMEEN ANDERSON,

        Defendant-Appellant.

_____________________________

              Submitted May 10, 2017 – Decided September 18, 2017

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              14-04-0211.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lon Taylor, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Michael   H.   Robertson,   Somerset    County
              Prosecutor, attorney for respondent (Lauren
              Martinez, Assistant Prosecutor, of counsel and
              on the brief).

        The opinion of the court was delivered by GOODEN

        BROWN, J.A.D.
     Following a jury trial, defendant was convicted of fourth-

degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and

acquitted of third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2), and third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d).         She was sentenced on March 13,

2015, to a one-year probationary term.      Defendant now appeals from

the memorializing judgment of conviction entered on March 20,

2015.   We have considered defendant's arguments in light of our

review of the record and applicable legal principles.           We affirm,

as we conclude that defendant's contentions are without merit.

     The   following   facts   were     adduced   at   the    trial.       At

approximately 2:30 p.m. on February 5, 2014, Sergeant Robert Lavin

of the Bound Brook Police Department was dispatched to a Fisher

Avenue address on a report of a domestic dispute.            Upon arrival,

Lavin overheard both a male and a female voice "yelling and

screaming" inside the residence.       After Officer Jan Babula arrived

to back-up Lavin, Lavin knocked on the front door of the residence

and identified himself and his partner as police officers.             About

fifteen seconds later, a woman Lavin recognized as defendant from

prior domestic disputes partially opened the door.           Lavin observed

a man known to him as R.C., defendant's live-in boyfriend, seated

on the stairwell next to the front door.          Defendant continued to



                                   2                                A-5162-14T2
yell at R.C. and refused to open the door entirely despite Lavin's

insistence.

      In an attempt to defuse the situation, Lavin ordered R.C. to

go upstairs.        After R.C. complied, defendant opened the door all

the way, at which point Lavin and Babula observed defendant holding

a knife in her right hand.          Lavin described the blade of the knife

as approximately seven inches in length.                      Babula described the

knife as having a silver tip.             Lavin and Babula immediately drew

their service revolvers and Lavin ordered defendant to drop the

knife.        Initially,     defendant     refused       to    comply   and     spewed

profanities       while    still    brandishing      the       knife.      Defendant

exclaimed repeatedly "[f]**k this, I'm tired of dealing with this

shit . . . . [M]ake me drop the knife."            Lavin continuously ordered

defendant to calm down and drop the knife.                        After about two

minutes, defendant retreated to the kitchen area of the residence

with Lavin and Babula following.              Eventually, defendant dropped

the   knife    on    the    kitchen     counter,   at     which    point      she   was

handcuffed, placed under arrest, and the knife was seized.

      After defendant was subdued, Lavin and Babula asked R.C. what

happened.      R.C. responded "[t]he crazy bitch cut me" and rolled

up his sleeve to display a small laceration on his forearm area.

Both Lavin and Babula believed the laceration was a fresh wound.

Lavin    "could     see    the   open   redness    and    the     moisture     on   the

                                          3                                    A-5162-14T2
laceration itself[,]" and Babula observed "no evidence of healing"

or "scabbing." At the scene, Babula took photographs of the wound,

which were admitted into evidence at the trial.

     R.C. testified that on the date in question, defendant went

into a jealous rage over other women calling him and demanded he

leave her apartment.          When he refused, she called the police.

According to R.C., when the police arrived, they drew their service

weapons   and    repeatedly    ordered       defendant    to   drop     the    knife.

However, R.C. denied seeing defendant with a knife and denied

telling the police officer that defendant had cut him.                            When

confronted      with   the   photographs       depicting       the    wound,      R.C.

testified that it was an old wound he had "picked at" and removed

the scab.    Further, R.C. testified that he sent a letter to the

Prosecutor's Office denying defendant did anything to him.

     At the conclusion of the State's case, defendant moved for a

judgment of acquittal pursuant to Rule 3:18-1, which the court

denied.      After     the   verdict     was   rendered    and       defendant     was

sentenced,      defendant    filed   a   notice   of     appeal.        On    appeal,

defendant raises the following points for our consideration:

            POINT I

            [R.C.'s] HEARSAY STATEMENT INDICATING THAT HE
            HAD BEEN CUT BY DEFENDANT WAS NOT AN EXCITED
            UTTERANCE AND SHOULD HAVE BEEN EXCLUDED,
            MANDATING A NEW TRIAL ON THE CHARGE OF
            UNLAWFUL POSSESSION OF A KNIFE.

                                         4                                    A-5162-14T2
            POINT II

            THE IMPROPER USE OF "AND/OR" REFERRING TO
            THREE   POSSIBLE   VICTIMS  IN   REGARDS  TO
            ASSESSMENT OF UNLAWFUL POSSESSION OF A KNIFE
            WAS AMBIGUOUS AND COULD HAVE LED TO A NON-
            UNANIMOUS VERDICT.

     Defendant argues that the trial court erroneously admitted

R.C.'s statement to police, "[t]he crazy bitch cut me[,]" as an

excited utterance.          "Trial court evidentiary determinations are

subject to limited appellate scrutiny, as they are reviewed under

the abuse of discretion standard."              State v. Buda, 195 N.J. 278,

294 (2008).       The excited utterance exception to the hearsay rule

allows a trial court to admit certain out-of-court statements

"relating    to    a    startling    event    or    condition    made   while    the

declarant was under the stress of excitement caused by the event

or condition and without opportunity to deliberate or fabricate."

N.J.R.E. 803(c)(2).          Such statements "are admissible under the

rationale    that       excitement   suspends      the   declarant's    powers    of

reflection        and     fabrication,        consequently       minimizing      the

possibility that the utterance will be influenced by self interest

and therefore rendered unreliable."                Buda, supra, 195 N.J. at 293

(quoting State v. Cotto, 182 N.J. 316, 327-28 (2005)).

     Various      factors     bear   on   the      declarant's    opportunity     to

fabricate, including:


                                          5                                A-5162-14T2
           (1) the amount of time that transpired between
           the initial observation of the event and the
           subsequent declaration of the statement; (2)
           the circumstances of the event; (3) the mental
           or physical condition of the declarant; (4)
           the shock produced; (5) nature of the
           statement; and (6) whether the statement was
           made voluntarily or in response to a question.

           [Buda, supra, 195 N.J. at 294 (citation and
           internal quotations omitted).]

     Although each of these factors is important, the crucial

issue "is the presence of a continuing state of excitement that

contradicts fabrication and provides trustworthiness."       Cotto,

supra, 182 N.J. at 328 (citation and internal quotations omitted);

see also State v. Branch, 182 N.J. 338, 366 (2005) (focusing

attention on "the opportunity to fabricate or deliberate" elements

of N.J.R.E. 803(c)(2) in conducting the requisite analysis). Thus,

in this fact-sensitive analysis, a court must determine "whether

the facts and circumstances reasonably warrant the inference that

declarant was still under the stress of excitement caused by the

event."   State v. Baluch, 341 N.J. Super. 141, 182 (App.Div.2001).

     Here, there is no doubt defendant's actions were upsetting

and alarming to R.C., and that the circumstances were shocking and

disturbing.   R.C. watched as defendant brandished a knife during

a two-minute stand-off with police while their guns were drawn.

The victim's statement was made under the stress and excitement

of these highly charged circumstances.    We find that the record

                                 6                          A-5162-14T2
adequately supports the trial court's decision, and therefore

discern no abuse of discretion.

     Next, defendant argues for the first time on appeal that the

court erroneously included "the 'and/or' language referring to

three separate victims as providing three separate variants of

unlawful possession of a weapon" in charging the jury on the third

element of the offense.    According to defendant, the erroneous

charge "deprived [defendant] due process of law and a fair trial

under both the United States and New Jersey Constitutions" and

"allowed for a non-unanimous verdict."

     When a defendant fails to object to a jury charge at trial,

we review for plain error, and "disregard any alleged error 'unless

it is of such a nature as to have been clearly capable of producing

an unjust result.'"   State v. Funderburg, 225 N.J. 66, 79 (2016)

(quoting R. 2:10-2). Plain error, in the context of a jury charge,

is "[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to

justify notice by the reviewing court and to convince the court

that of itself the error possessed a clear capacity to bring about

an unjust result."    State v. Camacho, 218 N.J. 533, 554 (2014)

(alteration in original) (quoting State v. Adams, 194 N.J. 186,

207 (2008)).



                                  7                         A-5162-14T2
     Of course, in reviewing any claim of error relating to a jury

charge, "[t]he charge must be read as a whole in determining

whether there was any error[,]" State v. Torres, 183 N.J. 554, 564

(2005), and the effect of any error must be considered "in light

of the overall strength of the State's case."         State v. Walker,

203 N.J. 73, 90 (2010) (citation omitted).       However, a defendant's

attorney's failure to object to jury instructions not only "gives

rise to a presumption that he did not view [the charge] as

prejudicial to his client's case[,]" State v. McGraw, 129 N.J. 68,

80 (1992), but is also "considered a waiver to object to the

instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013).

     Undoubtedly,     appropriate   and   proper    jury   charges   are

essential to a fair trial.      State v. Savage, 172 N.J. 374, 387

(2002).     However, we reject defendant's contention that the use

of the phrase "and/or" in the court's jury instructions led to the

type of confusion we found in State v. Gonzalez, 444 N.J. Super.

62, 75-76 (App. Div.), certif. denied, 226 N.J. 209 (2016). There,

we determined that a jury charge repeatedly employing the phrase

"and/or" rendered it impossible to determine whether the jury

unanimously agreed the defendant was guilty as an accomplice or

co-conspirator in a robbery or an aggravated assault, or both.

Ibid.     In finding plain error, we concluded



                                    8                           A-5162-14T2
          [t]he instructions were inherently ambiguous
          because the judge failed to explain in clear
          English what the jurors were required to
          decide and, as a result, generated numerous
          ways in which the jury could have convicted
          without a shared vision of what defendant did,
          or convicted defendant on some charges without
          finding all the elements were proven beyond a
          reasonable doubt.

          [Id. at 77 (citing State v. Gentry, 183 N.J.
          30, 32 (2005)).]

In its denial of certification, the Supreme Court expressly limited

our holding "to the circumstances in which it was used in th[at]

case."   Gonzalez, supra, 226 N.J. at 209.

     Here, the judge's minimal use of that term did not equate to

the nineteen times the trial judge used it in Gonzalez.     Further,

the judge essentially tracked the Model Jury Charge.       See Model

Jury Charge (Criminal), "Unlawful Possession of a Weapon (N.J.S.A.

2C:39-5(d))" (Apr. 18, 2005).   The jury was instructed as follows:

               Now, the third element that the State
          must prove beyond a reasonable doubt is that
          the [d]efendant possessed [the knife], under
          circumstances not manifestly appropriate for
          such . . . lawful uses as it may have. It is
          not necessary for the State to prove that the
          [d]efendant formed an intent to use [the
          knife] as a weapon. It is, however, necessary
          for the State to prove that it was possessed
          under such circumstances that a reasonable
          person would recognize that it was likely to
          be used as a weapon.

               In other words, under circumstances where
          it posed an immediate threat to . . . [R.C.],


                                 9                           A-5162-14T2
            and/or Officer Babula, and/or Sergeant Robert
            Lavin.

      The   commission    of   the   crime    did    not   depend   upon     the

identification of a particular victim.              Rather, defendant could

be found guilty if she possessed the knife under circumstances

that posed a threat to any one of the three victims.                    Indeed,

"[i]n determining whether the use of a weapon is manifestly

appropriate or inappropriate under the circumstances, a jury must

look to the facts of the case and not to the subjective intent of

the   actor."     State   v.   Montalvo,     229    N.J.   300,   317   (2017).

Moreover, given the facts of this case and the testimony at trial,

the judge's use of "and/or" in the context of the entire charge

did not lead to an "ultimate determination of guilt or innocence

. . . based on speculation, misunderstanding, or confusion." State

v. Olivio, 123 N.J. 550, 568 (1991).               Accordingly, we find no

error, let alone plain error, in the jury instruction.

      Affirmed.




                                     10                                 A-5162-14T2
