               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3588-17T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION
                                              AS REDACTED
                                              March 10, 2020
v.
                                            APPELLATE DIVISION

KYLE P. BROWN, a/k/a
KYLE PATRICK BROWN,

     Defendant-Appellant.
_________________________

           Argued November 18, 2019 – Decided March 10, 2020

           Before Judges Sabatino, Sumners and Geiger.

           On appeal from the Superior Court of New Jersey, Law
           Division, Middlesex County, Indictment No. 16-10-
           1680.

           Patrick Michael Megaro argued the cause for appellant
           (Halscott Megaro, PA, attorneys; Patrick Michael
           Megaro, on the briefs).

           David Michael Liston, Special Deputy Attorney
           General/Acting Assistant Prosecutor, argued the cause
           for respondent (Christopher L.C. Kuberiet, Acting
           Middlesex County Prosecutor, attorney; David Michael
           Liston, of counsel and on the brief).

     The opinion of the court was delivered by

SUMNERS, JR., J.A.D.
      A jury found defendant Kyle P. Brown guilty of third-degree arson,

N.J.S.A. 2C:17-1(b), and second-degree causing or risking widespread injury or

damage, N.J.S.A. 2C:17-2(a)(1), as a result of setting fire to, and causing an

explosion of, his parked car in a sparsely-filled parking lot adjacent to his

apartment building in the early morning hours. He appeals his convictions

contending:

              POINT I

              BECAUSE       THERE     WAS     INSUFFICIENT
              EVIDENCE THAT THE [DEFENDANT] CAUSED
              AN “EXPLOSION” WITHIN THE MEANING OF
              N.J.S.A. 2C:17-2(a)(1) AND N.J.S.A. 2C:17-1(b),
              THIS COURT SHOULD REVERSE AND GRANT
              HIM A JUDGMENT OF ACQUITTAL; FURTHER,
              THE TRIAL COURT SHOULD HAVE ENTERED A
              JUDGMENT OF ACQUITTAL BECAUSE THE
              CONDUCT PROHIBITED BY N.J.S.A. 2C:17-2(a)(1)
              WAS IMPROPERLY APPLIED AGAINST THE
              DEFENDANT-APPELLANT AND THE FACTS OF
              THIS CASE.

              POINT II

              BECAUSE A CRITICAL VIDEO RECORDING WAS
              NOT   PROPERLY     AUTHENTICATED    AND
              BECAUSE THE STATE FAILED TO PRESERVE
              THE ORIGINAL EVIDENCE, THE DENIAL OF THE
              DEFENSE MOTION IN LIMINE, WITHOUT AN
              EVIDENTIARY HEARING, WAS REVERSIBLE
              ERROR WHICH WAS LATER COMPOUNDED BY
              THE TRIAL COURT’S REFUSAL TO ADMINISTER


                                                                      A-3588-17T4
                                      2
TO THE JURY        AN    ADVERSE      INFERENCE
INSTRUCTION.

     A. Because State’s Exhibit 17A Was Not
     Properly Authenticated, Its Admission
     Was Clear Error and an Abuse of
     Discretion.

     B. The Erroneous Admission of the Video
     Was Compounded [b]y the Trial Court’s
     Refusal, In Spite of the State’s Later-
     Rescinded Concession, to Issue an Adverse
     Jury Instruction.

POINT III

BECAUSE THE EVIDENCE PRESENTED TO THE
GRAND JURY WAS KNOWINGLY MISLEADING
AND INSUFFICIENT TO ESTABLISH THIRD[-
]DEGREE ARSON AND SECOND[-]DEGREE
RISKING   WIDESPREAD   INJURY  AND/OR
DAMAGE, THE TRIAL COURT’S REFUSAL TO
DISMISS THOSE COUNTS WAS ERRONEOUS.

POINT IV

THE TRIAL COURT’S ADMISSION OF NEW
EVIDENCE THAT WAS “DISCOVERED” MID-
TRIAL AND NOT PREVIOUSLY DISCLOSED
PRIOR TO TRIAL, AND WHICH LATE
DISCLOSURE DEPRIVED [DEFENDANT] OF THE
OPPORTUNITY TO INVESTIGATE AND VERIFY[,]
DEPRIVED     [DEFENDANT]     OF     THE
OPPORTUNITY TO PRESENT A DEFENSE AND
VIOLATED RULE 3:13-3(f).




                                                  A-3588-17T4
                        3
            POINT V

            BECAUSE THE VERDICT WAS AGAINST THE
            WEIGHT OF THE EVIDENCE, THE TRIAL
            COURT’S REFUSAL TO GRANT [DEFENDANT]’S
            RULE 3:20-1 MOTION WAS ERRONEOUS.

            POINT VI

            THE TRIAL     COURT’S   PRECLUSION OF
            EXCULPATORY     EVIDENCE    THAT    HAD
            ALREADY BEEN INTRODUCED INTO EVIDENCE
            BY THE STATE VIOLATED [DEFENDANT]’S
            RIGHT TO PRESENT A DEFENSE AND VIOLATED
            THE RULE OF COMPLETENESS.

      For the reasons that follow, we hold the trial judge did not err in denying

defendant's motion for acquittal of third-degree arson and second-degree

causing or risking widespread injury or damage because there was sufficient

evidence to establish defendant caused a fire and explosion as set forth in

N.J.S.A. 2C:17-1(b), and an explosion as set forth in N.J.S.A. 2C:17-2(a)(1).

      In the unpublished portion of this opinion, we affirm the trial judge's: (1)

denial of defendant's motion to dismiss the indictment due to lack of prima facie

evidence that defendant committed third-degree arson and second-degree

causing or risking widespread injury or damage because the jury's guilty verdict

overrides the claim of prejudice in the grand jury process; (2) admission of

documentation of defendant's purchase of a gas can because there was no abuse


                                                                          A-3588-17T4
                                        4
of discretion; (3) denial of defendant's motion for a new trial because there was

no showing of a clearly and convincingly manifest denial of justice; and (4)

refusal to require the State to play parts of non-testifying defendant's recorded

police statement where he denied setting the fire was not an abuse of discretion

because the exculpatory statements did not provide context to the inculpatory

statements admitted into evidence. We affirm.

                                       I.

      We summarize the procedural history and trial testimony pertinent to this

appeal.

      A. Pre-trial Proceedings

      A Middlesex County grand jury charged defendant with second-degree

aggravated arson, N.J.S.A. 2C:17-1(a)(1) (knowingly placing another person in

danger of death or bodily injury) and/or N.J.S.A. 2C:17-1(a)(3)(arson with the

purpose of collecting insurance) (count one); third-degree arson, N.J.S.A.

2C:17-1(b)(1), (2), (3) or (5) (purposely starting a fire or an explosion under

certain circumstances) (count two); fourth-degree arson, N.J.S.A. 2C:17-1(c)(2)

(count three); second-degree risking widespread injury or damage, N.J.S.A.

2C:17-2(a)(1) (count four); fourth-degree risking widespread injury or damage,




                                                                         A-3588-17T4
                                       5
N.J.S.A. 2C:17-2(c) (count five); and fourth-degree risking widespread injury

or damage, N.J.S.A. 2C:17-2(d)(2) (count six).

      Defendant's motion to dismiss the indictment was granted in part. The

judge dismissed counts three, five, and six in their entirety as well as the portion

of count one alleging violation of N.J.S.A. 2C:17-1(a)(1), purposely placing

another person in danger. The judge declined to dismiss counts two, four, and

the portion of count one alleging violation of N.J.S.A. 2C:17-1(a)(3), arson to

collect insurance.

      Defendant also filed a motion in limine to exclude cell phone video

footage taken of a screen displaying surveillance camera video from a nearby

bus stop. The judge denied defendant's motion because the cell phone video was

authenticated by an eyewitness, who was at the bus stop, and saw the fire and

heard the explosion.

      B. Trial

      Testifying on behalf of the State, Brooke McClarren stated that around

2:00 a.m. on October 15, 2015, she and a friend were at a bus stop outside the

Buell Apartments (Buell) at Rutgers University when she heard a loud explosion

sounding like a cannon. Looking at a "nearby [nearly] empty parking lot," with

a few parked cars, she saw one of the cars on fire.


                                                                            A-3588-17T4
                                         6
        McClarren called 9-1-1, reporting a "smell of gas from a while away" and

"there's like a [sic] exploding sound." She also commented, "[t]he car is on fire,

and some of the bushes around the car are on fire," with the car being "pretty

far" from the building.       A recording of her call was played for the jury.

McClarren also authenticated the cell phone video that recorded surveillance

camera video footage of the area at the time of the incident. She confirmed the

video accurately showed her at the bus stop and a flash of light occurred

simultaneously with a loud cannon-like explosion she remembered hearing.

        Rutgers University Emergency Services Lieutenant Michael Richards

gave similar testimony. He stated that around 2:00 a.m. he went to the Buell

parking lot with his partner Lieutenant William Schlick1 in response to a report

of a motor vehicle fire. Upon arrival, he saw "a vehicle parked in the back corner

of the parking lot by the wood line with fire showing on the trunk of the vehicle."

Noticing flames coming out of the gap between the trunk lid and the rear quarter

panel of the vehicle on the passenger side, Lt. Richards put the visible fire out

with a fire extinguisher, then saw an additional fire, which "[t]urned out to be a

gas can . . . burning in the woods."




1
    Lt. Schlick was retired at the time of trial.
                                                                           A-3588-17T4
                                           7
      Initially, Lt. Richards did not notice any other parts of the vehicle on fire,

but "[w]hen . . . check[ing] the passenger compartment of the vehicle . . . the

windows were smoked over, and we were able to open the doors without a key

or forcing entry." The "smoked over" windows meant there was "a fire that had

been in the vehicle but had since died down," which caused "soot on the

windows," according to the Lieutenant. A "fireball" came out from underneath

the vehicle as they opened the car door. There appeared to be gasoline in the

foot wells of the car. In addition, "[i]t appeared that the back seat was down on

one side," which meant it was "possible that the soot or the smoke inside the

passenger compartment could have come from the trunk and moved into the

passenger compartment." Household items were inside the vehicle.

      Captain Stephen Letts, employed by the State of New Jersey, Division of

Fire Safety, State Fire Marshall's Office, Fire Investigation Unit, testified as a

fire investigations expert. Cpt. Letts conducted the investigation of the car fire

after he arrived at the scene at about 4:34 a.m., and opined:

            [I]t was honestly pretty obvious that this was an
            intentionally set fire. You had the amounts of gasoline
            that were poured throughout the vehicle, and there was
            a gas can within close proximity of the woods, in the
            woods area. It was within like five feet of the vehicle.
            . . . We labeled this as an incendiary cause classification
            which involves a deliberate act by a person or persons
            igniting a fire where a fire should not be.

                                                                            A-3588-17T4
                                         8
In short, Cpt. Letts concluded "someone opened the trunk of this car, poured

some gasoline into it, poured gasoline into the passenger compartment of the

car, lit the car on fire from the trunk, closed the trunk, somehow lit the gas can

on fire and left the scene."

      Rutgers University Police Sergeant Joseph Ray was also involved in the

fire investigation. Upon arriving at the scene around 5:00 a.m., he observed:

             [I]t looked like . . . the fire had started in the trunk area
             because that's where most of the damage was. . . . [T]he
             vehicle was stocked with a lot of items that were burnt
             also. There was some gasoline in the front driver [side]
             floor. There was some gasoline in the rear passenger
             side floor. There was a gas can off to the right . . . side
             of the vehicle in the wooded area closest to the
             passenger side of the vehicle. There was a book of
             burnt Shop-Rite matches in the rear of the vehicle . . . .
             And then the gas can nozzle was in the front passenger
             side floor area.

Sgt. Ray collected the gas can, although neither it nor the liquid in the can were

submitted for lab analysis. Analysis of four sampled items – the front driver's

side floor, the rear passenger's side floor, the driver's side floor mat, and the gas

can's nozzle – by the New Jersey Office of Forensic Science were positive for

gasoline. The matchbook came back negative for gasoline.

      At around 8:00 a.m., Sgt. Ray interviewed defendant at the Rutgers

University Police Headquarters after it was learned he was the owner of the fire


                                                                             A-3588-17T4
                                          9
damaged car.     Defendant was Mirandized 2 and chose to give a statement.

Defendant, who began a master's program at Rutgers two months earlier,

detailed what he did the day before and morning of the fire.

       Defendant stated while he was driving to a Piscataway store where he paid

cash to buy boxes, bubble wrap, candy, and a drink, he had a road-rage incident

with another driver, who was only described as "Asian."            According to

defendant, they screamed at each other and he was briefly followed by the other

driver. Upon returning to his apartment, defendant packed his car for a trip

home to Pennsylvania; later deciding to leave the next day because he felt it was

too late to drive when he finished packing. Around 10:30 or 11:00 p.m., he

walked to a restaurant to buy dinner, but since it was closed, he ordered delivery

which arrived at about 12:30 a.m. At 1:15 a.m. or 1:20 a.m., defendant went

outside "for a walk to see if the main lobby was open so that I (indiscernible),

so I walked over, walked around the building, like I said before, and looking,

and it was locked, so I just walked back."

       Defendant stated he had both car insurance and renter's insurance but told

Sgt. Ray he was not certain the personal property in the car that was destroyed


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                                                          A-3588-17T4
                                       10
would be covered. 3 Except for the possibility of the road-rage driver, defendant

had "no idea who would" set his car on fire.

      Sgt. Ray continued his investigation by going to the store where defendant

stated he bought some items the day before the fire. The store provided him two

still images of two different people buying a gas can that day. In executing a

search warrant for defendant's bedroom with a lock on it, Sgt. Ray found a gas

can sticker inside the store's bag in a garbage can, and some credit and debit

cards. This led to defendant's arrest.

      Sgt. Ray also obtained surveillance videos from Buell's surveillance

system after he personally accessed the system, reviewed the recorded footage,

supervised the downloading of the videos, and was present while they were

transferred to a disk. The State played for the jury, twelve entry and exit videos

from Buell showing defendant. The first video starts at 12:44 p.m. on October

14, 2015, and the last video ends at 2:10 a.m. on October 15, 2015.




3
  In addition to clothes estimated to be more than $1200, defendant claimed his
desktop computer, monitor, keyboard, keyboard mouse, microphone,
"automation stuff" to control his lights, security camera, and "basically just a lot
of electronics[,]" as well as a recently purchased desk, were valued around
$7650.


                                                                            A-3588-17T4
                                         11
      Sgt. Ray further testified about two still photos from the videos that were

shown to the jury. He described the first photo 4 as showing defendant leaving

Buell wearing a black jacket and a black hat, and the second photo, occurring

nineteen minutes later, showing defendant entering Buell without the jacket or

hat. He testified that a photograph of the passenger compartment of the vehicle

showed what appeared to be a black jacket on top of "boxes and stuff." The

police did not search the car for a black jacket and hat, and they did not inventory

anything in the car because there were "a lot of items [in the car] which you

couldn't tell what they were because they were all burnt up inside."

      Sgt. Ray was unable to export from the surveillance system a video of the

bus stop depicting McClarren because the system was too old. He stated:

            At the time, bus stops went to a different system and we
            tried to export ourselves, but were unsuccessful. We
            used IT and Security Technologies to try to export it.
            And then eventually, . . . we didn't want to lose the
            footage, so it was recorded with a cell phone and then
            saved that way.

To further explain the surveillance camera system, Kenneth Ackerman, a

manager in the Security Technologies Unit at Rutgers University, testified that

although the bus stop at Buell Apartments had several DVR systems in place at


4
  The time stamp on the photo was 1:50:02 p.m. on October 15, 2015, but the
time stamp was fast by twelve hours and eight minutes.
                                                                            A-3588-17T4
                                        12
the time of the fire, there was no backup system. He stated, normally, there

would be no reason for an "individual to use a separate video camera to take a

shot of the screen."

      After the State rested, defendant renewed his objection to admitting the

cell phone video into evidence. Again, the judge denied the motion, essentially

for his initial reasons. The judge noted, "the State, in fact, put a witness on who

explained why the [video]tape is unavailable and . . . why the [cell phone] had

to be used to record what was on the original [video]tape."

      The State's attempt to introduce video evidence of defendant's store

purchase was denied because the State could not authenticate the video. Instead,

the State presented Alexis Damon, an assistant manager at the Piscataway store,

who authenticated the store's record of a transaction number from October 14,

2015, at 12:15:07, showing the purchase of a five-gallon gas can using a credit

card with the last four account numbers that matched the last four digits on one

of the credit cards Sgt. Ray collected from defendant when he was arrested.

      Defendant's objection to the document's admission was denied. He argued

the document's production in the middle of the trial was an "unfair surprise,"

because it had not been disclosed prior to trial. The judge determined there was

no unfair surprise because defendant was aware that evidence of his purchase


                                                                           A-3588-17T4
                                       13
would be produced, albeit in a different format. The judge remarked, defendant

"knew the State intended to at least attempt to introduce into evidence that the

defendant engaged in a transaction . . . [at the store]" and that the information

about the transaction and defendant's credit card numbers had been available in

the initial police reports. The judge concluded that "the prejudice that the late

revelation of this discovery imposes on the defendant . . . does not outweigh the

probative value." Yet, to address defendant's concerns regarding the document's

mid-trial production, the judge offered him an adjournment to investigate the

transaction. There is no indication that defendant took advantage of the offer.

       After the State rested, the judge granted in part defendant's motion for a

judgment of acquittal. The remaining portion of count one alleging a purpose

of collecting insurance and part of count two alleging starting a fire or causing

an explosion with the purpose of collecting insurance were dismissed.

Defendant's renewed application at the close of his case to dismiss the remaining

parts of counts two and four was denied. Defendant exercised his right not to

testify.

       Although the parties initially agreed to an adverse inference charge on

spoliation of the surveillance camera video depicting the explosion, the State

changed its position during the jury charge conference. After argument, the


                                                                         A-3588-17T4
                                       14
judge denied defendant's request for an adverse inference charge because the

cell phone video was properly authenticated by McClarren and Sgt. Ray, and the

limitations of exporting a video from the surveillance system was explained by

Ackerman.

      After the jury found defendant guilty of arson (count two) and risking

widespread injury and/or damage (count four), the judge denied defendant's

motions for a new trial, or for a judgment of acquittal, and bail pending appeal.

Defendant was later sentenced to an aggregate five-year prison term. This

appeal followed. 5

                                       II.

      In Point I, defendant contends the trial judge erred in denying his motion

for acquittal on counts two and four because there was insufficient evidence to

establish that he caused an explosion, "which is an indispensable element of both

counts."   He argues the fireball seen on the surveillance video is not an

explosion, and no expert opined that an explosion occurred. He emphasizes no

explosion occurred where there was a fire "in an isolated area of a parking lot




5
  This court denied defendant's motion for bail, finding that "[t]he trial court
did not misapply its discretion or the factors under Rule 2:9-4 in denying bail
pending appeal."
                                                                         A-3588-17T4
                                      15
that contained no people at almost 2:00 a.m.," and there was no "evidence of

violent damage to the car, a debris field, [or] broken windows." We disagree.

      We begin with a review of our guidelines regarding a judgment of

acquittal. A court shall enter an order for a judgment of acquittal only "if the

evidence is insufficient to warrant a conviction."      R. 3:18-1.      The long-

established standard to determine a motion for a judgment of acquittal at the

conclusion of the State's case was articulated in State v. Reyes, 50 N.J. 454

(1967):

            [T]he question the trial judge must determine is
            whether, viewing the State's evidence in its entirety, be
            that evidence direct or circumstantial, and giving the
            State the benefit of all its favorable testimony as well
            as all of the favorable inferences which reasonably
            could be drawn therefrom, a reasonable jury could find
            guilt of the charge beyond a reasonable doubt.

            [Id. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 90-
            91 (1961)).]


      Under Rule 3:18-1, the court "'is not concerned with the worth, nature or

extent (beyond a scintilla) of the evidence, but only with its existence, viewed

most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002)

(quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). "If the

evidence satisfies that standard, the motion must be denied." State v. Spivey,


                                                                          A-3588-17T4
                                      16
179 N.J. 229, 236 (2004). We apply this same standard on appeal. State v.

Kittrell, 145 N.J. 112, 130 (1996).

      Next, because defendant questions the meaning of the word "explosion"

as applied to N.J.S.A. 2C:17-1(b) and N.J.S.A. 2C:17-2(a)(1), we examine our

rules of statutory construction. In determining the interpretation of a statute,

our review is de novo. State v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016).

It is well settled that a primary purpose of "statutory interpretation is to

determine and 'effectuate the Legislature's intent.'" State v. Rivastineo, 447 N.J.

Super. 526, 529 (App. Div. 2016) (quoting State v. Shelley, 205 N.J. 320, 323

(2011)). We start with considering "the plain 'language of the statute, giving the

terms used therein their ordinary and accepted meaning.'" Ibid. And where "'the

Legislature's chosen words lead to one clear and unambiguous result, the

interpretive process comes to a close, without the need to consider extrinsic

aids.'" Ibid. Hence, we do "not 'rewrite a plainly-written enactment of the

Legislature [or] presume that the Legislature intended something other than that

expressed by way of the plain language.'" Ibid. (alteration in original) (quoting

Marino v. Marino, 200 N.J. 315, 329 (2009)).

      Yet, a statute's plain language "should not be read in isolation, but in

relation to other constituent parts so that a sensible meaning may be given to the


                                                                           A-3588-17T4
                                       17
whole of the legislative scheme." Wilson ex rel. Manzano v. City of Jersey City,

209 N.J. 558, 572 (2012). "'When all is said and done, the matter of statutory

construction . . . will not justly turn on literalisms, technisms or the so-called

formal rules of interpretation; it will justly turn on the breadth of the objectives

of the legislation and the commonsense of the situation.'"           J.H. v. R&M

Tagliareni, LLC, 454 N.J. Super. 174, 187 (2018) (quoting Jersey City Chapter,

P.O.P.A. v. Jersey City, 55 N.J. 86, 100 (1969)), rev'd on other grounds, 239

N.J. 198 (2019). A "common-sense approach often begins with an examination

of dictionary definitions." Cypress Point Condo. Ass'n v. Adria Towers, LLC,

226 N.J. 403, 426 (2016). Simply put, "[a]n absurd result must be avoided in

interpreting a statute." Gallagher v. Irvington, 190 N.J. Super. 394, 397 (App.

Div. 1983).

      Applying these well-established principles, we discern no basis to set

aside the jury verdict because the State presented sufficient evidence to sustain

the convictions.

      For defendant to be convicted for third-degree arson under N.J.S.A.

2C:17-1(b), there must be proof that "he purposely starts a fire or causes an

explosion, whether on his own property or another's." (Emphasis added). The

plain reading of the statute does not demand proof that an explosion occurred in


                                                                            A-3588-17T4
                                        18
order to sustain a conviction, merely proving a fire occurred satisfies an element

of the offense. Accordingly, this contention has no merit.

      In order for defendant to be convicted for second-degree risking

widespread injury or damage under N.J.S.A. 2C:17-2(a)(1), there must be proof

that he "purposely or knowingly, unlawfully causes an explosion, flood,

avalanche, collapse of a building, release or abandonment of poison gas,

radioactive material, or any other harmful or destructive substance . . . ."

(Emphasis added). Defendant seeks to interpret the term "explosion" based on

the perceived meaning of the remaining terms in N.J.S.A. 2C:17-2(a)(1) through

the principle of noscitur a sociis, meaning "words may be indicated and

controlled by those with which they are associated."         Herzog v. Twp. of

Fairfield, 349 N.J. Super. 602, 607 (App. Div. 2002) (quoting Germann v.

Matriss, 55 N.J. 193, 220 (1970)). We reject this reasoning.

      All the words in the statute connote serious harm, i.e., "flood, avalanche,

collapse," among others. Regardless of noscitur a sociis, which is "not [an]

absolute" rule and should only be viewed as "a helpful guide," ibid. (quoting

Germann, 55 N.J. at 221), the term "explosion" is appropriately grouped with

other potentially significant hazards. The fact that one could imagine a less

lethal "explosion" does not render its inclusion ambiguous when less lethal


                                                                          A-3588-17T4
                                       19
versions of the remaining terms could also be imagined. Contrary to defendant's

assertion, the terms "flood" and "avalanche" are not "tantamount to terrorism in

which the safety of large groups of citizens are threatened."

      Considering the video of the fireball and McClarren's testimony

confirming her observation of the fireball simultaneous with the sound of a

cannon-like explosion, the judge refused to order an acquittal because there was

sufficient proof beyond a reasonable doubt that "there was some sort of

explosion" under N.J.S.A. 2C:17-2(a)(1).6 The judge determined it was for the

jury to decide whether defendant purposely or knowingly set the fire for the

purpose of causing the car to explode. We concur with this reasoning. The

common meaning of the term "explosion" does not require that it "cause or risk

injury to a large group of people" as defendant asserts. Expert testimony is not

required when the term is unambiguous. There is no evidence of legislative

intent to exclude the factual scenario in this case – a car with gasoline in its tank

set on fire and bursting into a fireball – from qualifying as an explosion. Hence,

we are convinced that denial of defendant's motion for a judgment of acquittal



6
  As part of our review of the record on appeal, we have seen the video. Nothing
in the video materially contradicts the trial judge's factual findings. See State v.
S.S., 229 N.J. 360, 374-81 (2017) (clarifying the limited scope of appellate
review of factual findings based on video evidence).
                                                                             A-3588-17T4
                                        20
was proper because the evidence supported the jury's guilty verdict on count

four that defendant violated N.J.S.A. 2C:17-2(a)(1).

                                        III.

      In Point II, defendant asserts it was error to admit a cell phone video of

the surveillance video of the bus stop because it was not properly authenticated.

He also asserts an adverse inference charge was required to "signal[] to the jury

the importance of the authenticity requirement." Given that the video was

"critical to the State's case," defendant maintains his convictions should be

reversed and a new trial be ordered. We are unpersuaded.

      A judge's decision to admit or exclude evidence is "entitled to deferenc e

absent a showing of an abuse of discretion, i.e., [that] there has been a clear error

of judgment." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration

in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Although a

trial court retains broad discretion in determining the admissibility of evidence,

that discretion is abused when relevant evidence offered by the defense and

necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530,

554-55 (2016). "Thus, we will reverse an evidentiary ruling only if it 'was so

wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).


                                                                             A-3588-17T4
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      It is well-settled that a videotape "qualifies as a writing[ ]" under N.J.R.E.

801(e) and must be "properly authenticated" before being admitted. See State

v. Wilson, 135 N.J. 4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of

authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter is what its

proponent claims." The authentication rule "does not require absolute certainty

or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999).

"The proponent of the evidence is only required to make a prima facie showing

of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made,

the [item] is admissible, and the ultimate question of authenticity of the evidence

is left to the jury." Ibid. (citations omitted).

      Authentication of a videotape is similar to the authentication of a

photograph.     State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).

"[T]estimony must establish that the videotape is an accurate reproduction of

that which it purports to represent and the reproduction is of the scene at the

time the incident took place."      Ibid. (citing Wilson, 135 N.J. at 15). The

photographer or videographer need not testify "because the ultimate object of an

authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at




                                                                            A-3588-17T4
                                         22
14. Thus, "any person with the requisite knowledge of the facts represented in

the photograph or videotape may authenticate it." Ibid.

      "[R]eliability is the decisive factor in determining the admissibility of a

recording." State v. Nantambu, 221 N.J. 390, 395 (2015). The determination is

"a highly fact-sensitive analysis, requiring consideration not only of any gaps or

defects in the recording but also the evidential purposes for which the recording

is being offered." Ibid.

      A duplicate is usually admissible to the same extent as an original. A

duplicate includes "a counterpart . . . produced by the same impression as the

original, or from the same matrix, or by means of photography, including

enlargements and reductions, or by mechanical or electronic re-recording, or by

chemical reproduction, or by other equivalent technique which accurately

reproduces the original." N.J.R.E. 1001(d). N.J.R.E. 1003 states: "A duplicate

. . . is admissible to the same extent as an original unless (a) a genuine question

is raised as to the authenticity of the original, or (b) in the circumstances it would

be unfair to admit the duplicate in lieu of the original."

      Based on our review of the record, we conclude the court's decision to

admit the video footage was not an abuse of discretion. McClarren authenticated

the video by identifying herself and by testifying that the video accurately


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depicted what she observed in the early hour of October 15, 2015 at the parking

lot next to the Buell Apartments. Sgt. Ray and Ackerman explained why a cell

phone video of the surveillance camera video was necessary. And defendant

presented no evidence undermining the reliability of Sgt. Ray's cell phone video.

      Turning to defendant's claim that the judge failed to give an adverse

inference charge due to the absence of the original video from the Buell

Apartments' surveillance camera system, we review the failure to charge for an

abuse of discretion. State v. Dabas, 215 N.J. 114, 132 (2013). "An adverse

inference charge may be warranted when a party's failure to present evidence

'raises a natural inference that the party so failing fears exposure of those facts

would be unfavorable to him.'" Torres v. Pabon, 225 N.J. 167, 181 (2016)

(quoting State v. Clawans, 38 N.J. 162, 170 (1962)). That was not the case here,

because the State preserved the video evidence of the explosion though Sgt.

Ray's cell phone video of the surveillance video.         As the judge properly

determined, the State's witnesses documented that because the original

surveillance video could not be preserved, an accurate duplicate was

successfully made and shown to the jury. Thus, no adverse inference charge

was necessary where the relevant evidence was not lost or destroyed.




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     [At this court's direction Parts IV, V, VI, and VII of
     this opinion, which do not concern matters pertinent
     to the explosion issues in Parts I, II, and III, have
     been omitted from the published version of this
     opinion. R. 1:36-3.]

Affirmed.




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