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                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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         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-3498-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARCELLUS D. BARNES,

     Defendant-Appellant.
_______________________________________________

              Submitted July 13, 2017 – Decided July 24, 2017

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              09-09-1815.

              Joseph E. Krakora, Public Defender, attorney
              for   appellant   (Robert    Carter  Pierce,
              Designated Counsel, on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Paul H.
              Heinzel, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Marcellus D. Barnes appeals from an order entered

by the Law Division on January 7, 2016, which denied his petition
for post-conviction relief (PCR) without an evidentiary hearing.

We affirm.

                                  I.

      A Monmouth County grand jury returned an indictment, which

charged defendant with second-degree sexual assault in violation

of   N.J.S.A.   2C:14-2(c)(4),   by    committing   an   act   of    sexual

penetration upon J.S., while J.S. was at least thirteen years of

age, and defendant was at least four years older than J.S. (count

one); and third-degree endangering the welfare of a child in

violation of N.J.S.A. 2C:24-4(a), by engaging in sexual conduct

that would impair or debauch the morals of J.S. (count two).

Thereafter, defendant was tried before a jury.1

      At the trial, J.S. testified that around 8:00 a.m. on July

8, 2009, she called defendant and invited him to come over to her

house because she was bored. J.S. knew defendant because he worked

at a nearby pizzeria. J.S. was then fifteen years old, and she had

a child who was one and one-half years old. Defendant was thirty

years old. Previously, J.S. and defendant had spoken to each other,

and they exchanged their phone numbers.

      Around 9:00 a.m., defendant returned J.S.'s call and later

he went to J.S.'s house. They watched television in J.S.'s bedroom.


1
 We refer to J.S. and others by their initials in order to protect
their identities.

                                  2                                 A-3498-15T1
At some point, J.S. told defendant she wanted to do some "sexual

things." Defendant was reluctant and wanted to leave, but J.S.

insisted that he stay. She twice performed oral sex upon defendant,

and they twice engaged in sexual intercourse.

     At around 10:00 a.m., J.S.'s mother T.N. returned home. She

testified that through the open bedroom window, which was located

over the front door, she heard J.S. moaning in a sexual manner.

T.N. also heard the baby screaming. T.N. grabbed a belt from her

car, entered the house, went upstairs to J.S.'s bedroom, and

observed J.S. and defendant engaging in sexual intercourse. The

baby was lying nearby on the bed. T.N. recognized defendant as the

deliveryman from the pizzeria. T.N. struck defendant on his back

and buttocks with the belt.

     T.N. tried to stop defendant from leaving, but he pushed his

way past her and exited the house. T.N. called the police, and an

officer from the Asbury Park Police Department responded to the

house. The officer took J.S. to a hospital for a sexual assault

nurse examination; however, J.S. refused all tests because she did

not want to get defendant into trouble. She did, however, provide

buccal swabs for DNA sampling.

     The jury found defendant not guilty on count one (sexual

assault), but guilty on count two (endangering the welfare of a

child). The trial judge thereafter denied defendant's motion for

                                 3                          A-3498-15T1
a new trial and sentenced defendant to parole supervision for

life. The judge ordered defendant to comply with Megan's Law,

N.J.S.A.   2C:7-1     to    -23,    and       imposed    appropriate    fines   and

penalties.

     The   trial    judge    entered      a    judgment    of   conviction   dated

December 14, 2010. Defendant filed a direct appeal and raised the

following arguments:

           POINT ONE
           THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
           MOTION FOR A NEW TRIAL BASED ON THE
           PROSECUTOR'S IMPROPER AND PREJUDICAL COMMENTS
           DURING SUMMATION AND OTHER ERRORS WHICH
           DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT
           TO A FAIR TRIAL.

           POINT TWO
           THE TRIAL COURT'S REFUSAL TO HOLD AN
           EVIDENTIARY     HEARING     REGARDING     THE
           PROSECUTOR'S INTRODUCTION OF INFLAMMATORY
           TESTIMONY REGARDING RUMORS THAT DEFENDANT HAD
           AIDS WAS PREJUDICIAL ERROR MANDATING REVERSAL
           OF HIS CONVICTION.

     We    rejected    these       arguments       and    affirmed     defendant's

conviction. State v. Barnes, No. A-0587-11 (App. Div. Aug. 8,

2012) (slip op. at 11). The Supreme Court later denied defendant's

petition for certification. State v. Barnes, 225 N.J. 340 (2016).

     On August 25, 2014, defendant filed a pro se petition for PCR

in the Law Division. The court appointed counsel to represent

defendant, and PCR counsel filed an amended petition, alleging



                                          4                                A-3498-15T1
that defendant did not have the effective assistance of trial and

appellate counsel.

     On January 7, 2016, the PCR judge, who had presided at the

trial, heard oral argument on the petition and placed a decision

on the record. The judge determined that defendant failed to show

he was denied the effective assistance of appellate or trial

counsel, and defendant was not entitled to an evidentiary hearing

on his petition. The judge memorialized his decision in an order

dated January 7, 2016, denying PCR. This appeal followed.

     On appeal, defendant argues:

          POINT I:

          THE PCR COURT ERRED BY DENYING [DEFENDANT'S]
          PCR BECAUSE [DEFENDANT] ESTABLISHED BY A
          PREPONDERANCE OF EVIDENCE THAT HE WAS DEPRIVED
          EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE
          TO COUNSEL'S FAILURE TO RAISE A JURY
          INSTRUCTION ISSUE DURING [DEFENDANT'S] DIRECT
          APPEAL, WHICH WOULD HAVE RESULTED IN THE
          REVERSAL OF HIS CONVICTION.

          POINT II:

          THE PCR COURT ERRED BY NOT ORDERING AN
          EVIDENTIARY HEARING ON [DEFENDANT'S] CLAIM
          THAT HE WAS DEPRIVED EFFECTIVE ASSISTANCE OF
          COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO
          INVESTIGATE [DEFENDANT'S] DEFENSE THAT THE
          VICTIM LEFT MESSAGES ON HIS CELL PHONE THAT
          WERE EXCULPATORY.




                                5                           A-3498-15T1
                                   II.

     We turn first to defendant's contention that he was denied

the effective assistance of appellate counsel because his attorney

did not raise an issue regarding the trial judge's instructions

to the jury on the endangering charge. Defendant contends that if

appellate counsel had raised this issue on direct appeal, his

conviction would have been reversed. We disagree.

     To prevail on a claim of ineffective assistance of counsel,

a defendant must meet the two-prong test established in Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984), and adopted by our Supreme Court in State v.

Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland

test requires a defendant to show that his or her attorney's

performance was deficient. Strickland, supra, 466 U.S. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693.

     To do so, a defendant must establish that counsel's alleged

acts or omissions fell "outside the wide range of professionally

competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.

2d at 695. This requires a showing "that counsel made errors so

serious   that   counsel   was   not       functioning   as   the   'counsel'

guaranteed the defendant by the Sixth Amendment." Id. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693.



                                       6                              A-3498-15T1
       To satisfy the second prong of Strickland, the defendant

"must show that the deficient performance prejudiced the defense."

Ibid. The defendant must establish "a reasonable probability that,

but    for   counsel's   unprofessional   errors,      the   result   of   the

proceeding would have been different." Id. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698.

       As noted previously, in count two of the indictment, defendant

was charged with endangering the welfare of a child by engaging

in "sexual conduct" with J.S. The record shows that on the first

full   day   of   deliberations,   the   jury   sent   the   trial    judge   a

question, which stated, "What is the definition of sexual conduct

as it applies to count [two]?"

       The judge responded by noting that the term "sexual conduct"

is not specifically defined in           the jury instructions or the

relevant statute. The judge noted, however, that the term "clearly

includes sexual assaults and sexual contacts." The judge added

that engaging in vaginal intercourse or fellatio would meet "the

definition of sexual conduct under the statute."

       Defendant's trial attorney objected to the judge's response

to the jury's question because the judge had mentioned "sexual

contacts" rather than "sexual conduct." The judge stated that his

response was based on a treatise, which states that the term

"sexual conduct" is not defined in N.J.S.A. 2C:24-4, but the term

                                     7                                A-3498-15T1
includes "sexual assaults and sexual contacts" as those terms are

used in the Code of Criminal Justice. See Cannel, New Jersey

Criminal Code Annotated, comment 2 on N.J.S.A. 2C:24-4 (2016-17).

     Defendant    argues   that   his     appellate   counsel   should   have

argued on direct appeal that the trial judge erred by instructing

the jury that defendant could be found guilty of endangering if

he engaged in "sexual contacts." He contends that, based on the

judge's instruction, the jury could have found him guilty of

endangering merely because he engaged in some "sexual contact"

with the victim. Defendant notes that the jury found him not guilty

on count one, which charged sexual assault by committing an act

of "sexual penetration."

     The   PCR   judge   determined     that   appellate   counsel   made    a

reasonable strategic choice not to raise this issue on direct

appeal. The judge found that his initial instructions to the jury

on the endangering charge were proper. He noted that the initial

instructions were based on the model jury instructions and tailored

to the evidence presented at trial.

     The judge also found that his response to the jury's question

as to the meaning of "sexual conduct" did not taint the initial

instructions. The judge noted that he had clarified that if a

person engaged in vaginal intercourse and fellatio, that would be

sufficient to support a finding of "sexual conduct."

                                      8                              A-3498-15T1
       The judge stated that while the jury found defendant not

guilty of sexual assault, this was not evidence of jury confusion

because verdicts in criminal cases need not be consistent. The

judge said the verdict on the sexual assault charge might have

been the result of jury leniency, mistake, or compromise.

       The judge concluded that even if appellate counsel erred by

failing to raise the issue on direct appeal, defendant did not

suffer any prejudice as a result of the error. The judge stated

that   the   argument   that   the   response   to   the   jury's   question

constituted reversible error lacked merit, and the result of the

appeal would not have been different if defendant's attorney had

raised the issue.

       We are convinced that the PCR judge correctly determined that

defendant had not been denied the effective assistance of appellate

counsel. As the judge found, appellate counsel made the reasonable

strategic choice to omit this argument and to focus on other

arguments counsel deemed to have a better chance of success.

       Furthermore, as the judge found, defendant has not shown that

he was prejudiced by counsel's failure to raise this issue on

direct appeal. Defendant did not show that if this issue had been

raised, the appeal would have been decided in his favor. In his

instructions to the jury, the judge noted that the State had

charged that defendant endangered the welfare of J.S. by engaging

                                      9                              A-3498-15T1
in   "sexual    conduct,"      specifically    vaginal      intercourse     and

fellatio.

     The State did not allege that defendant had engaged in any

other conduct, which constituted "sexual conduct." In addition,

the judge had not mentioned "sexual contact" in his initial

instructions,     and   that    term    had   not   been    defined   in    the

instructions. As the trial judge observed in addressing defense

counsel's objection, the jury would not have had any "frame of

reference" for the term "sexual contact."

     Thus,     viewed   in   their     entirety,    the    instructions    were

accurate and adequately conveyed the applicable legal principles

to the jury. State v. Reddish, 181 N.J. 553, 613 (2004). The record

supports the PCR judge's finding that the reference to "sexual

contacts" in his response to the jury's inquiry did not taint the

initial instructions.

     We therefore conclude that the PCR judge correctly found that

defendant had not been denied the effective assistance of appellate

counsel.

                                       III.

     Defendant also argues that the PCR court erred by denying his

request for an evidentiary hearing. He contends he presented a

prima facie case of ineffective assistance of trial counsel. He

argues that his trial attorney failed to investigate the contention

                                       10                             A-3498-15T1
that J.S. had left messages on defendant's cell phone that were

exculpatory. Again, we disagree.

     A hearing on a PCR petition is only required when a defendant

establishes "a prima facie case in support of [PCR]," the court

determines that there are disputed issues of material fact "that

cannot be resolved by reference to the existing record," and the

court finds that "an evidentiary hearing is necessary to resolve

the claims for relief." R. 3:22-10(b); see also State v. Porter,

216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), an

evidentiary hearing on a PCR petition is only required when a

defendant presents a prima facie case for relief).

     In     support   of      his   petition,       defendant     submitted      a

certification    in   which    he   stated   that    during     his   videotaped

statement, he provided the Asbury Park Police detective with

certain text messages on his cell phone. He stated that he had

more than one hundred text messages on the phone. He also claimed

that, at his bail hearing, he asked for his phone so that he could

retrieve allegedly exculpatory text messages that J.S. sent to

him. The prosecutor denied the request because the phone was

evidence.

     Defendant also stated that he informed his trial attorney

about the phone and the alleged exculpatory evidence it contained.

He claims his attorney did not obtain the phone or investigate

                                      11                                 A-3498-15T1
whether it contained messages from J.S. Defendant noted that the

prosecutor's office had performed a forensic examination of the

phone in attempt to retrieve child pornography. According to

defendant, the prosecutor did not attempt to retrieve J.S.'s text

messages.

       In addressing this issue, the PCR judge observed that the

State had provided the defense with the forensic report, and the

detective's narrative report stated that no text messages had been

discovered on defendant's cell phone. The judge concluded that

because defendant's attorney was told that the alleged exculpatory

material did not exist, trial counsel had no reason to obtain

defendant's cell phone. The judge thus rejected defendant's claim

that his attorney was deficient because he failed to investigate

this claim.

       The judge also found that defendant was not prejudiced by

counsel's failure to investigate. The judge noted that J.S. had

been   a     reluctant   witness.   J.S.   testified   at   trial   that   she

performed oral sex on defendant, and she and defendant engaged in

sexual intercourse. Based on her testimony, the jury could find

that the sexual relations were consensual.

       The    judge   pointed   out   that   T.N.,     J.S.'s   mother,    had

corroborated J.S.'s testimony. The judge stated that whatever J.S.



                                      12                              A-3498-15T1
may have said to defendant in her text messages would not have

altered the jury's verdict on the endangering charge.

       On appeal, defendant argues the PCR judge erred by finding

that   his   trial   attorney   was    not   obligated   to   undertake    an

investigation of the messages that J.S. allegedly left on his cell

phone. He asserts that the State's forensic report indicates that

the State used software to examine the phone for "contacts, images,

and videos." He claims that the State did not use the software to

analyze the phone for text messages.

       We are convinced, however, that the PCR judge correctly found

that defendant has not been denied the effective assistance of

trial counsel. As noted, the detective's narrative report stated

that no text messages had been found on the phone. Even if

defendant's counsel erred by failing to obtain the cell phone,

defendant has not shown that he was prejudiced by the error.

       As the PCR judge noted, J.S. testified at trial that she

twice performed oral sex upon defendant, and she and defendant

twice had sexual intercourse. J.S. was a reluctant witness, and

she did not want to get defendant into trouble. Moreover, T.N.

testified that she entered J.S.'s bedroom and found J.S. and

defendant engaging in sexual intercourse. Therefore, it is highly

improbable that J.S.'s alleged text messages would have led the



                                      13                            A-3498-15T1
jury to reject J.S. and T.N.'s trial testimony and return a

different verdict on the endangering charge.

     We conclude that the record supports the PCR judge's finding

that defendant had not presented a prima facie case of ineffective

assistance of counsel. The PCR judge correctly found that defendant

was not entitled to an evidentiary hearing on his petition.

     Affirmed.




                               14                           A-3498-15T1
