                                NOT FOR PUBLICATION WITHOUT THE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-2118-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHELLE LODZINSKI,

     Defendant-Appellant.
_________________________

                    Argued April 1, 2019 – Decided August 7, 2019

                    Before Judges Messano, Fasciale and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 14-08-
                    0871.

                    Gerald Krovatin and David W. Fassett argued the cause
                    for appellant (Krovatin Klingeman, LLC and
                    Arseneault & Fassett, LLP, attorneys; Gerald Krovatin,
                    David W. Fassett, and Gregory D. Jones, on the briefs).

                    Joie D. Piderit, Assistant Prosecutor, argued the cause
                    for respondent (Andrew C. Carey, Middlesex County
                    Prosecutor, attorney; Joie D. Piderit, of counsel and on
                    the brief).
PER CURIAM

      On May 25, 1991, defendant Michelle Lodzinski reported that her son,

five-year-old Timothy (Timmy) Wiltsey, went missing while both were

attending a Memorial Day carnival in Sayreville.           Search efforts began

immediately, they became widespread, and descriptions of Timmy, the clothing

and Teenage Mutant Ninja Turtles (TMNT) sneakers he was wearing, and his

continued disappearance received national media attention. In October 1991, a

schoolteacher walking in the area of Olympic Drive, near the Raritan Center

industrial complex in Edison, found a child's TMNT sneaker; believing it might

be related to the case, he provided it to law enforcement authorities. Defendant

had worked for a company in Raritan Center for approximately six months in

the late 1980s.

      Police were able to match the model number of the sneaker to a shoebox

defendant provided shortly after Timmy's disappearance. When first shown the

sneaker, defendant said it was not her son's, describing features that

distinguished it from the sneakers Timmy was wearing. In November 1991,

defendant returned to view the sneaker a second time and told authorities it could

be her son's. She did not disclose, however, that she had worked in Raritan

Center. Also in November 1991, police and an FBI agent assigned to the case


                                                                          A-2118-16T2
                                        2
searched the area on foot near where the sneaker was found, but they discovered

nothing of significance.

      FBI agent Ron Butkiewicz and police officers returned to the same general

area on April 23, 1992, and the following day, April 24, and found a matching

sneaker and a pillowcase. Approximately 150 yards away, and across Olympic

Drive, they found Timmy's skeletal remains in the stagnant water of Red Root

Creek, a tributary of the Raritan River. They also discovered remnants of his

clothing, a shovel and a TMNT balloon, like Timmy sometimes kept in his

bedroom at home.

      Approximately twenty-five feet above the remains, embedded in the soil

in the bank of the creek, Butkiewicz found a blue blanket with multi-colored,

metallic fibers.   Although FBI testing on the blanket revealed nothing of

evidential value, years later a New Jersey State Police forensic scientist

identified metallic fibers found on the pillowcase as being similar to those in the

blanket, although he never performed a full trace analysis. In 1992, defendant

and her parents could not identify the blanket, but, twenty-years later, detectives

showed the blanket to three women who babysat Timmy in the late 1980s and

early 1990s; they identified it as coming from defendant's home. Police also




                                                                           A-2118-16T2
                                        3
showed the blanket to several other witnesses when the investigation was

reopened, but none of them could identify it.

      The medical examiner who examined the remains at the scene, but died

before trial, could not reach a conclusion about the cause of Timmy's death.

However, another medical examiner, Dr. Geetha Natajarian, who reviewed the

autopsy reports, photographs, and investigative and other forensic reports,

testified. She, too, could not determine a cause of death, but through a process

of elimination, opined that the manner of Timmy's death was a homicide. A

forensic anthropologist, Donna Fontana, opined that Timmy's body had

decomposed where it was found, at a "surface burial" site.

      Although defendant was immediately a suspect in the investigation of

Timmy's disappearance, and remained so after the authorities found his remains,

she never admitted having a role in either his disappearance or his death. Within

the first two months after her son's disappearance, however, defendant provided

numerous statements that conflicted with the account she first provided on the

night of the carnival, i.e., that she went to purchase a soda and Timmy simply

disappeared.

      On June 6, 1991, defendant told authorities that two men abducted Timmy.

The next day, she claimed that a woman she knew only as "Ellen" was at the


                                                                         A-2118-16T2
                                       4
carnival and offered to watch Timmy as defendant purchased her soda. Two

men accompanied Ellen. Defendant described them, but did not know who they

were. Initially, defendant claimed the trio just disappeared with Timmy. In a

later version, she said one of the men threatened her with a knife and told her

not to say anything or they would harm Timmy.

       Twenty-three years after Timmy's disappearance, a Middlesex County

grand jury indicted defendant in a single count charging her with the first-degree

murder of her son. Trial proceeded between March and May 2016. At the close

of the State's case, defendant moved for a judgment of acquittal pursuant to Rule

3:18-1, which the judge denied. The jury found defendant guilty. After denying

her motions for a judgment of acquittal notwithstanding the verdict (JNOV),

Rule 3:18-2, or a new trial, Rule 3:20-1, the judge sentenced defendant to a

thirty-year term of imprisonment with a thirty-year period of parole ineligibility.

       Before us, defendant raises the following points:

             POINT I

             [DEFENDANT'S] CONVICTION SHOULD BE
             REVERSED, AND JUDGMENT OF ACQUITTAL
             SHOULD BE ENTERED, BECAUSE NO EVIDENCE
             SUGGESTED, MUCH LESS PROVED, THAT
             [DEFENDANT] CAUSED TIMOTHY'S DEATH. 1


1
    We have omitted the sub-points of defendant's arguments.
                                                                           A-2118-16T2
                                        5
            POINT II

            [DEFENDANT'S] CONVICTION SHOULD BE
            VACATED AND A JUDGMENT OF ACQUITTAL
            ENTERED BECAUSE THE STATE VIOLATED HER
            RIGHT TO DUE PROCESS OF LAW BY WAITING
            [TWENTY-THREE] YEARS TO SEEK HER
            INDICTMENT AND BRING HER TO TRIAL.

            POINT III

            THE TRIAL COURT COMMITTED ONE OR MORE
            REVERSIBLE ERRORS BY UNNECESSARILY
            AND IMPROPERLY INVOKING RULE 1:8-2(d)(1)
            TO REMOVE AND REPLACE A DEFENSE-
            LEANING JUROR WHO WAS ABLE TO
            CONTINUE       DELIBERATING,      WHEN
            DELIBERATIONS HAD ALREADY PROGRESSED
            TO AN ADVANCED STATE AND WITHOUT
            FINDING THAT THE RECONSTITUTED JURY
            WOULD BE IN A POSITION TO CONDUCT OPEN-
            MINDED AND FAIR DELIBERATIONS, THEREBY
            VIOLATING [DEFENDANT'S] RIGHT TO A FAIR
            TRIAL BY AN IMPARTIAL JURY.

            POINT IV

            ALTERNATIVELY,    THE   TRIAL     COURT
            COMMITTED REVERSIBLE ERROR BY FAILING
            TO DECLARE A MISTRIAL UPON LEARNING
            THAT THE JURY HAD BEEN TAINTED BY
            OUTSIDE INFORMATION THAT HAD THE
            CAPACITY TO INFLUENCE THE RESULT.

We have considered these arguments in light of the record and applicable legal

standards. We affirm.


                                                                       A-2118-16T2
                                      6
                                         I

      Whether made before a verdict is returned, see Rule 3:18-1, or after, see

Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State

v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011).

            [T]he governing test is: whether the evidence viewed
            in its entirety, and giving the State the benefit of all of
            its favorable testimony and all of the favorable
            inferences which can reasonably be drawn therefrom, is
            such that a jury could properly find beyond a reasonable
            doubt that the defendant was guilty of the crime
            charged.

            [State v. D.A., 191 N.J. 158, 163 (2007) (citing State v.
            Reyes, 50 N.J. 454, 458-59 (1967)).]

"The trial judge must consider only the existence of such evidence, not its

'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super. 447, 453 (App. Div.

2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)).

      "It is generally stated that whether the motion to acquit is made at the end

of the State's case or after the end of the entire case the standard is the same,

i.e., only the State's proofs will be considered." State v. Sugar, 240 N.J. Super.

148, 152-53 (App. Div. 1990) (emphasis added) (citing Kluber, 130 N.J. Super.

at 341-42). An exception to this general rule applies when "a defendant has had

the benefit of the submission to the jury of a lesser[-]included offense based

upon proofs adduced on his own case," and is convicted of that lesser-included

                                                                          A-2118-16T2
                                        7
offense. Id. at 153. In those circumstances, "the sufficiency of the evidence

should be tested upon a consideration of the entire record and not merely a

limited application of the Reyes criteria to the State's proofs." Ibid.2

        "The approach is the same though the testimony is circumstantial rather

than direct; indeed in many situations circumstantial evidence may be 'more

forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J.

413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)); accord

Tindell, 417 N.J. Super. at 549. Even though the evidence must be sufficient to

support a finding of guilt beyond a reasonable doubt, "[i]nferences need not be

established beyond a reasonable doubt." Tindell, 417 N.J. Super. at 549 (citing

State v. Taccetta, 301 N.J. Super. 227, 240 (App. Div. 1997)). As the Court has

said:

             [A] jury may draw an inference from a fact whenever it
             is more probable than not that the inference is true; the
             veracity of each inference need not be established
             beyond a reasonable doubt in order for the jury to draw
             the inference. Nevertheless, the State's right to the
             benefit of reasonable inferences should not be used to
             shift or lighten the burden of proof, or become a
             bootstrap to reduce the State's burden of establishing

2
   Sugar is distinguishable, because although the jury in this case received
instructions on the lesser-included offenses of aggravated manslaughter and
reckless manslaughter, the evidence adduced on defendant's case amounted to a
general denial of any involvement in Timmy's death, and defendant was
convicted of murder and not either of the lesser-included offenses.
                                                                           A-2118-16T2
                                         8
            the essential elements of the offense charged beyond a
            reasonable doubt.

            [State v. Brown, 80 N.J. 587, 592 (1979) (citations
            omitted).]

We apply the same legal standard as the trial judge and review the denial of a

motion for acquittal de novo. State v. Fuqua, 234 N.J. 583, 590 (2018).

      These principles, therefore, generally alleviate the necessity of describing

in detail evidence defendant adduced at trial, which in this case was substantial

and in many ways directly rebutted the State's proofs. For example, defendant

produced several witnesses who claimed to have seen a young boy generally

fitting Timmy's description at the carnival that night, thereby refuting the State's

major contention that Timmy was never at the carnival with defendant, he was

likely already dead at that point, and defendant concocted a story to escape

detection. Defendant produced expert testimony that challenged the State's

theory that defendant buried Timmy in a shallow grave where his remains were

found, and criticized the handling of critical evidence, most notably the blanket.

In addition, defendant produced witnesses that supported the defense of third-

party guilt, i.e., that one or more persons abducted Timmy from the carnival.

      In addition, we are not called upon to address the admissibility of the

State's evidence, because none of the points on appeal raises such a challenge.


                                                                            A-2118-16T2
                                         9
Succinctly stated, the State contended that defendant killed Timmy, a child she

bore out-of-wedlock at a very young age, because she was struggling financially

and emotionally. It introduced evidence of Timmy's frequent absences and

tardiness at school, that defendant sometimes brought him to her job sites

because she could not find a babysitter and she moved from job to job, staying

only a short period of time before leaving to find another. The State proved that

defendant sometimes did not return from a night out, leaving the babysitter to

fend for herself.     It also introduced evidence of defendant's romantic

involvement with a married man shortly after Timmy's disappearance and other

"cavalier" conduct, including her behavior during various interviews with law

enforcement and at Timmy's funeral.

      Defendant objected to some of this evidence, and the trial judge astutely

noted his concern on occasion regarding its admissibility. He noted, as do we,

that the evidence frequently cut both ways. It suffices to say, whether a strategic

decision or not, much of this evidence, which the State argued demonstrated

motive, was admitted without objection and, in most instances was not subjected

to analysis under the strictures of N.J.R.E. 404(b), and State v. Cofield, 127 N.J.

328, 338 (1992). See State v. Foglia, 415 N.J. Super. 106, 122-23 (App. Div.

2010) (noting that non-criminal "bad conduct evidence" still must undergo


                                                                           A-2118-16T2
                                       10
evaluation under the Rule and Cofield). Our comments are not intended as a

criticism, but rather only to make clear that we address the argument raised in

Point I on the record that exists, applying the standards already enunciated.

      Due process requires that to convict any defendant, the State must prove

all elements of a criminal charge beyond a reasonable doubt. State v. Kiriakakis,

235 N.J. 420, 431 (2018). N.J.S.A. 2C:1-13(a) codifies this constitutional

requirement and provides: "No person may be convicted of an offense unless

each element of such offense is proved beyond a reasonable doubt. In the

absence of such proof, the innocence of the defendant is assumed." To convict

defendant of murder under N.J.S.A. 2C:11-3(a)(1) and (2), the State was

required to prove beyond a reasonable doubt that she purposely or knowingly

caused Timmy's death, or serious bodily injury that resulted in his death.

      Our Criminal Code defines "purposely" and "knowingly" as follows:

            (1) Purposely. A person acts purposely with respect to
            the nature of his conduct or a result thereof if it is his
            conscious object to engage in conduct of that nature or
            to cause such a result.

            (2) Knowingly. A person acts knowingly with respect
            to the nature of his conduct or the attendant
            circumstances if he is aware that his conduct is of that
            nature, or that such circumstances exist, or he is aware
            of a high probability of their existence. A person acts
            knowingly with respect to a result of his conduct if he
            is aware that it is practically certain that his conduct

                                                                         A-2118-16T2
                                       11
             will cause such a result. "Knowing," "with knowledge"
             or equivalent terms have the same meaning.

             [N.J.S.A. 2C:2-2(b)(1) and (2) (emphases added).]

As can be seen, the requisite mental states supporting a conviction for murder

require conduct by the actor and legal causation.

      The Criminal Code also defines the relationship between conduct and

causation:

             a. Conduct is the cause of a result when:

                   (1) It is an antecedent but for which the
                   result in question would not have occurred;
                   and

                         ....

             b. When the offense requires that the defendant
             purposely or knowingly cause a particular result, the
             actual result must be within the design or
             contemplation, . . . of the actor, or, if not, the actual
             result must involve the same kind of injury or harm as
             that designed or contemplated and not be too remote,
             accidental in its occurrence, or dependent on another's
             volitional act to have a just bearing on the actor's
             liability or on the gravity of his offense.

             [N.J.S.A. 2C:2-3(a)(1) and (b).]

The Code "provides for a two-step analysis for determining the requisite causal

connection. First, the finder of fact must determine whether the State has proven

'but-for' causation under subsection a.     Second, it must consider the more

                                                                         A-2118-16T2
                                       12
specific requirement of . . . subsection[] b . . . ." Cannel, N.J. Criminal Code

Annotated, cmt. 2 on N.J.S.A. 2C:2-3 (2019). The State establishes "but-for"

causation "by demonstrating that the event," here, Timmy's death, "would not

have occurred absent . . . defendant's conduct." State v. Buckley, 216 N.J. 249,

263 (2013) (citing N.J.S.A. 2C:2-3(a)). 3

      Defendant's essential argument is that the State failed to prove she

engaged in any conduct that caused Timmy's death. The State's arguments in

response largely miss the mark.

      For example, it is undisputed that in New Jersey, the State need not

produce the victim's body, much less prove a specific cause of death. As we

said in State v. Zarinsky, "[t]he failure to produce the victim's body does not

preclude a finding that she is dead." 143 N.J. Super. 35, 54 (App. Div. 1976)

(citing Commonwealth v. Burns, 187 A.2d 552, 558-59 (Pa. 1963)), aff'd, 75

N.J. 101 (1977). "[T]he successful concealment or destruction of the victim's

body should not preclude prosecution of his or her killer where proof of guilt

can be established beyond a reasonable doubt." Id. at 55 (citing Campbell v.


3
  In this sense, the Code incorporates elements of the common law concept of
corpus delicti. See State v. Hill, 47 N.J. 490, 496 (1966) ("It is clear that the
corpus delicti is proved where the State . . . has produced facts and circumstances
from which the jury can infer that a loss has occurred and that that loss was
caused by or was a result of a criminal act.").
                                                                           A-2118-16T2
                                       13
People, 42 N.E. 123, 127 (Ill. 1895)). That the prosecution need not produce

the victim's body or, because of destruction or decomposition of the victim's

remains, establish a cause of death, is widely accepted. See, e.g., People v.

Towler, 641 P.2d 1253, 1257-61 (Cal. 1982); Commonwealth v. Nadworny, 486

N.E.2d 675, 682-83 (Mass. 1985); Burns, 187 A.2d at 558-59; State v.

Rebeterano, 681 P.2d 1265, 1267-68 (Utah 1984); Edwards v. Commonwealth,

808 S.E.2d 211, 216-20 (Va. 2017).

      However, even though the victim's body was never found in Zarinsky, the

State produced extensive direct and circumstantial evidence that showed the

defendant engaged in some conduct that caused the victim's death. Witnesses

identified the victim riding in the defendant's car shortly before she went

missing; he was identified as the person who tried to lure two other young girls

into his car two days earlier, and two others two weeks earlier; police found

ammunition, as well as panties and hairclips similar to those worn by the victim,

in the defendant's car, and blood on its rear bumper and taillight; and the

defendant made incriminating admissions to jail mates. 143 N.J. Super. at 41-

47. The contrast between such evidence of the defendant's conduct in Zarinsky,

and what the State adduced here, requires no further comment.




                                                                         A-2118-16T2
                                      14
      Nor is it meaningful for the State to argue that a jury may convict a

defendant solely on circumstantial evidence.         That proposition is beyond

peradventure. See, e.g., State v. Rogers, 19 N.J. 218, 231-35 (1955); State v.

Donohue, 2 N.J. 381, 389-92 (1949); State v. Carroll, 256 N.J. Super. 575, 603

(App. Div. 1992).

      Rather, the issue here is whether the State proved, admittedly by

circumstantial evidence, that defendant did "something to produce the

prohibited . . . result[,]" Cannel, N.J. Criminal Code Annotated, cmt. 2 on

N.J.S.A. 2C:2-3 (citing State v. V.R., 387 N.J. Super. 342 (App. Div. 2006)),

and "the actual result[,]" the death of her son, was "within [her] design or

contemplation . . . or . . . involve[d] the same kind of injury or harm as that [she]

designed or contemplated." N.J.S.A. 2C:2-3(b).

      We agree with the State that there was available proof for the jury to

conclude beyond a reasonable doubt that Timmy's death was neither suicide nor

an accident, but rather he was the victim of a homicide. The jury was free to

accept Dr. Natajarian's opinion in that regard.        It also could accept other

circumstantial proof that the killing was not accidental. Fontana's expert opinion

permitted an inference that whoever killed Timmy dug a shallow grave in a

remote area to dispose of his body ostensibly to avoid detection.


                                                                             A-2118-16T2
                                        15
      There was also available evidence beyond a reasonable doubt that

defendant placed Timmy's body in the shallow grave. She was the last person

seen with him; defendant's landlady testified that she heard defendant and

Timmy in the apartment on the morning of the carnival. Items recovered from

the area where police found his remains, most significantly the blanket and the

TMNT balloon, relate back directly to defendant's home.                Defendant's

conflicting, ever-changing statements made to law enforcement and others

during the time Timmy was missing demonstrate an attempt to not only deflect

suspicion from her, but to hinder the investigation.

      After police found Timmy's sneaker and then his remains, defendant

continued to obfuscate, first telling police the sneaker was not his, only to return

later and tell police it could be. She said the blanket did not come from her

home. Defendant failed to tell police that she had worked in the Raritan Center

complex, and the jury was entitled to infer that her conduct after confirmation

of Timmy's death was inconsistent with innocence and more consistent with a

consciousness of her own guilt.

      Nevertheless, defendant contends, without conceding, that despite proof

she had the opportunity to commit the homicide and was present at and

participated in the burial of Timmy's remains, the State failed to adduce


                                                                            A-2118-16T2
                                        16
sufficient evidence that she engaged in conduct that caused his death, much less

that she did so purposely or knowingly. Although this presents a close question,

we disagree.

      "Case law and treatises have recognized the special role of motive

evidence and its unique capacity to provide a jury with an overarching narrative,

permitting inferences for why a defendant might have engaged in the alleged

criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011); see also Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 9 on N.J.R.E. 404

(2019) ("[M]otive evidence is that which discloses why the defendant committed

a criminal offense.") (citing State v. Hasher, 246 N.J. Super. 495, 500 (Law Div.

1991)). "[C]ourts have admitted motive evidence even when it did no more than

raise an inference of why a defendant may have engaged in criminal

conduct . . . ." Calleia, 206 N.J. at 294.

      The Court also has recognized that one purpose of motive evidence "is to

aid the jury, particularly in a case resting upon circumstantial evidence, in

determining who the person was who committed the crime." State v. Carter, 91

N.J. 86, 102 (1982) (emphasis added). "[M]otive evidence can 'establish the

identity of the defendant as the person who committed the offense' and . . . 'is

often of great importance, particularly in a case based largely on circumstantial


                                                                         A-2118-16T2
                                        17
evidence.'" Calleia, 206 N.J. at 293 (emphasis added) (quoting 1 Wharton on

Criminal Evidence § 4:45, at 479 (15th ed. 1997)). Here, the jury could accept

the State's contention that defendant had sufficient motive to kill her son, who,

despite evidence she introduced to the contrary, the State claimed was a burden

to her.

      Additionally, "a defendant's post-crime conduct evidencing a guilty

conscience provide[s] a sound basis from which a jury logically could infer that

a defendant was acting consistent with an admission of guilt or that the conduct

was illuminating on a defendant's earlier state of mind." State v. Williams, 190

N.J. 114, 126 (2007) (citing State v. Rechtschaffer, 70 N.J. 395, 413-15 (1976)).

Here, the State introduced evidence of defendant's conduct when she first

reported Timmy was missing, and argued her false report of the events at the

carnival, her ever-changing story of how Timmy disappeared, her omission of

information that might have incriminated her, e.g., her prior employment at

Raritan Center, and her unusual lack of emotion even after Timmy's remains

were found, demonstrated her participation in criminal conduct that caused his

death. See, e.g., State v. Tucker, 190 N.J. 183, 190 (2007) (noting the State's

ability "to impeach the validity of [a defendant's] statements" through "asserted

inconsistencies . . . between two or more statements"); State v. Cerce, 22 N.J.


                                                                         A-2118-16T2
                                      18
236, 245-46 (1956) (evidence admitted as to the defendant's indifference when

informed that his wife had been killed).

      Additionally, to support a conviction for murder, the State was required

to prove defendant's purposeful or knowing conduct. Evidence of only reckless

conduct, underlying and supporting a conviction for aggravated manslaughter or

reckless manslaughter, was insufficient. See N.J.S.A. 2C:11-4(a)(1) and (b)(1)

(defining aggravated and reckless manslaughter); see also N.J.S.A. 2C:2-2(b)(3)

("A person acts recklessly . . . when he consciously disregards a substantial and

unjustifiable risk that [a] material element[,]" in this case, death, "will result

from his conduct.").     The State, therefore, was entitled to disprove any

reasonable doubt that defendant acted without the requisite intent. See N.J.R.E.

401 (evidence is relevant if it has "a tendency in reason to prove or disprove any

fact of consequence") (emphasis added).       "The burden of establishing this

connection is not onerous: 'if the evidence makes a desired inference more

probable than it would be if the evidence were not admitted, then the required

logical connection has been satisfied.'" State v. Garrison, 228 N.J. 182, 195

(2017) (quoting Williams, 190 N.J. at 123).

      Circumstantial proof of intent, through defendant's words and conduct

both before and after the crime, is well-recognized in our jurisprudence, and


                                                                          A-2118-16T2
                                       19
proof of intent is a specific exception to the general prohibition in N.J.R.E.

404(b) regarding evidence of other bad acts. See N.J.R.E. 404(b) (prohibiting

admission of evidence of "[o]ther crimes, wrongs, or acts[,]" generally, but

allowing its admission "for other purposes, such as proof of . . . intent"). "Such

evidence may be admissible . . . if it discloses the mental intention or purpose

of a defendant in committing a criminal offense or to negate the existence of

innocent intent." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,

cmt. 10 on N.J.R.E. 404 (emphasis added).

      Although "intent should not be 'confused' with motive[,]" there is a logical

relationship between the two. State v. Apprendi, 304 N.J. Super. 147, 157 (App.

Div. 1997) (quoting Morss v. Forbes, 24 N.J. 341, 359 (1957)), aff'd, 159 N.J. 7

(1999), rev'd on other grounds sub nom. Apprendi v. New Jersey, 530 U.S. 466

(2000). "In criminal law motive may be defined as . . . the moving power which

impels to action for a definite result. . . . [I]ntent . . . is the purpose to use a

particular means to effect a certain result." Id. at 157-58 (quoting 21 Am. Jur.

2d Criminal Law § 173 (1981)). Our courts have historically recognized a

"wider range of evidence is permitted" to show both. Rogers, 19 N.J. at 228.

            Otherwise there would often be no means to reach and
            disclose the secret design or purpose of the act charged
            in which the very gist of the offense may consist. . . .
            All evidentiary circumstances which are relevant to or

                                                                            A-2118-16T2
                                        20
            tend to shed light on the motive or intent of the
            defendant or which tend fairly to explain his actions are
            admissible in evidence against him . . . .

            [Ibid. (emphasis added).]

See also State v. J.M., Jr., 438 N.J. Super. 215, 223 (App. Div. 2014) ("When

offered as a means of proving intent, other-crimes evidence is often

indistinguishable from motive."), aff'd as modified, 225 N.J. 146 (2016).

      Post-crime consciousness of guilt evidence is relevant "to state of mind

disputes" even when the crime charged requires reckless conduct. Williams,

190 N.J. at 129. Here, in addition to the evidence we have already discussed,

the jury could conclude that defendant's contradictory statements about Timmy's

disappearance were circumstantial evidence of a guilty state of mind regarding

the cause of his death.

      In State v. Bzura, the defendant, an attorney, was charged with theft of his

client's money and false swearing based on subsequent inconsistent statements

to the grand jury. 261 N.J. Super. 602, 606-07 (App. Div. 1993).        In rejecting

his argument that the charges should have been severed before trial, we held that

the evidence of his false swearing would have been admissible even if the

defendant were tried separately for theft. Id. at 616. "[T]he fact that [the]

defendant made inconsistent statements . . . would tend to show that [the]


                                                                            A-2118-16T2
                                        21
defendant acted with guilty intent when he obtained his client's money." Ibid.

(citation omitted).

      In sum, giving the State the benefit of all favorable testimony and

reasonable inferences that could be drawn from that testimony, we conclude

there was sufficient evidence to prove beyond a reasonable doubt that defendant

purposefully or knowingly caused Timmy's death.

                                        II

      In her second point, defendant argues the judge erred in denying her

motion to dismiss the indictment because of the twenty-three-year delay

between the finding of Timmy's remains and the grand jury's action. She

contends there was no reasonable explanation for failing to show Timmy's

babysitters the blanket during the initial investigation, and the delay prejudiced

her defense. She notes that although two defense witnesses who saw Timmy at

the carnival testified at trial, one was unable to travel due to advanced age,

testified by Skype and during her video testimony changed her account. A

second had no recollection of the events, causing defendant to read the witness's

contemporaneous statement to police for the jury.

      "Statutes of limitations protect defendants from oppressive pre-indictment

delay[,]" but New Jersey has no statute of limitations for prosecuting the crime


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                                       22
of murder. State v. Townsend, 186 N.J. 473, 487 (2006) (citing N.J.S.A. 2C:1-

6(a)(1)). Nevertheless, a due process violation may occur because of a delayed

indictment if: (1) the State deliberately delayed indictment in order to gain a

tactical advantage over the defendant; and (2) the delay caused the defendant

actual prejudice in presenting his or her defense. Id. at 488-89 (citing United

States v. Gouveia, 467 U.S. 180, 192 (1984)).

         We agree with the trial judge that the record does not support a conclusion

that the State deliberately delayed indictment in order to gain a tactical

advantage over defendant. At most, the State's failure to show the blanket to

more people in 1992, when investigators showed it only to defendant and her

parents, evidences negligence. When the investigation was reopened in 2011,

the State showed the blanket to a larger number of people, including not only

Timmy's former babysitters, who identified it as belonging to defendant, but also

to others who did not identify the blanket as defendant's. The jury heard the

evidence on both sides, so we also discern no prejudice to defendant on this

issue.

         We further agree with the judge that defendant failed to demonstrate other

prejudice occasioned by the delay. In addition to the two witnesses cited,

defendant produced four other witnesses who identified a young boy of Timmy's


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                                         23
general description who attended the carnival the night of May 25, 1991.

Moreover, the delay allowed defendant to present a fuller third-party defense,

because a critical witness she produced at trial did not surface until 2015.

      For these reasons, we reject the argument that pre-indictment delay

violated defendant's due process rights.

                                       III

      We provide necessary context for defendant's remaining contentions. The

jury began deliberations at approximately noon, Thursday, May 12, 2016. Late

that afternoon, it requested playback of some testimony. The judge dismissed

the jury for the day at 3:45 p.m., advising that playback would occur the

following morning, which it did, lasting until 12:20 p.m. After lunch and further

deliberations, the jury requested additional playback, which began at 2:52 p.m.,

but was not completed. The judge dismissed the jury at 3:56 p.m.

      Playback continued on Monday morning, May 16, for approximately one

hour, after which the jury returned to deliberate and requested more playback at

1:42 p.m. After some discussion with the attorneys, the judge told the jury to

return to the jury room and clarify the request. Within minutes, at 1:53 p.m.,

the judge received a note: "Research was done by the foreman as to the FBI's

protocol back in the 1990s."


                                                                          A-2118-16T2
                                       24
      In this regard, Agent Butkiewicz had testified that when he found the

blanket near Timmy's remains in 1992, he never photographed it in situ, nor did

he measure its precise location from the skeletal remains or other landmarks at

the scene. Butkiewicz claimed it was not FBI protocol at the time to do so.

However, defense counsel vigorously cross-examined Butkiewicz about this and

established through him and other State's witnesses that the lack of any

procedure to document the exact location of the evidence was contrary to

protocols established within New Jersey's law enforcement community.

      Recognizing that a juror conducting independent research violated his

repeated admonitions, the judge conferred with the attorneys and decided

without objection to interview the juror. During questioning, the foreperson

admitted that immediately before beginning deliberations he performed internet

research on FBI protocols on his personal laptop computer at home. The juror

said his research did not tell him "anything important" or "relevant" to the case,

but he admitted speaking about his research with a few of the other jurors.

      The judge then questioned the other deliberating jurors individually, and

all stated they were aware of the foreperson's research. However, they each said

the research and any conversations about it would not affect their consideration

of the evidence. The judge dismissed the jury for the day.


                                                                          A-2118-16T2
                                       25
      On Tuesday, May 17, neither the State nor defendant moved for a mistrial.

Defendant urged the judge not to remove the foreperson from the jury, and the

State argued otherwise. The judge ruled that the foreperson should be removed

pursuant to Rule 1:8-2(d), because he had proven himself unable and unwilling

to follow the court's instructions.    At this point, defendant claimed that

deliberations had advanced to a point where substitution was improper, and

defense counsel moved for a mistrial. Noting the jury had only deliberated for

approximately five hours, the judge denied the motion.

      The court selected an alternate juror, designated a new foreperson, and

properly instructed the reconstituted jury to begin deliberations anew. After

approximately an additional thirty minutes of the previously requested playback,

the judge dismissed the jury for lunch. Some additional playback occurred upon

its return, and the judge dismissed the jury after approximately ninety minutes

of deliberations. The jury deliberated upon its return Wednesday morning, and,

at 11:04 a.m., returned its verdict.

      In a written supplemental opinion filed after the verdict but before

consideration of defendant's formal post-verdict motions, the judge reasoned

that dismissal of the foreperson was appropriate, because he was unable to

follow the court's express, repeated instructions not to conduct independent


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                                       26
research and demonstrated a lack of candor in responding to the judge's

questions. The judge determined that a mistrial was unwarranted because these

issues were "personal" to the dismissed juror and did not affect the remaining

jurors' ability to deliberate fairly. 4

       The judge entertained oral argument on defendant's post-verdict motions,

and, in his written decision that accompanied the order denying JNOV or a new

trial, the judge reiterated his prior reasoning. He concluded dismissal of the

foreperson was proper under Rule 1:8-2(d)(1) and deliberations had not

progressed so far that a mistrial was warranted.

       In her third point, defendant argues that the judge erred by replacing the

deliberating foreperson, and, in her fourth point, she alternatively contends that

the judge should have declared a mistrial rather than replace the juror. The judge

justified removing the deliberating foreperson pursuant to Rule 1:8-2(d)(1),

which "provides that, after the jury begins its deliberations, an alternate juror

may not be substituted unless 'a juror dies or is discharged by the court because



4
  Defendant refers to the foreperson as a "defense-leaning" juror in her brief,
but the juror's leanings are not apparent from the transcripts of the individual
voir dire, as the judge carefully did not inquire about deliberations to that point .
However, in his written supplemental decision, the judge parenthetically cited a
post-verdict news article in which the substituted juror claimed to have been told
by other jurors that the dismissed foreperson believed defendant was not guilty.
                                                                             A-2118-16T2
                                          27
of illness or other inability to continue.'" State v. Musa, 222 N.J. 554, 565

(2015) (quoting R. 1:8-2(d)(1)).        The rule "is intended to strike a balance

between a defendant's right to a fair trial decided by an impartial jury and

judicial economy." Ibid. (citing State v. Jenkins, 182 N.J. 112, 124 (2004)).

      The Court has construed the "'inability to continue' provision of [the]

rule[,] . . . restrictively . . . 'to protect a defendant's right to a fair ju ry trial.'"

State v. Terrell, 231 N.J. 170, 171 (2017) (Albin, J., dissenting) (quoting

Jenkins, 182 N.J. at 124). "[O]ur courts distinguish between reasons that are

personal to the juror, which may permit a substitution under Rule 1:8-2(d)(1),

and issues derived from 'the juror's interaction with the other jurors or with the

case itself,' which may not." State v. Ross, 218 N.J. 130, 147 (2014) (quoting

State v. Williams, 171 N.J. 151, 163 (2002)). "Our review of a trial court's

decision to remove and substitute a deliberating juror because of an 'inability to

continue' . . . is deferential. We will not reverse a conviction unless the court

has abused its discretion." Musa, 222 N.J. at 564-65.

      Nevertheless, "there are times when jury deliberations have proceeded too

far to permit replacement of a deliberating juror with an alternate." Jenkins, 182

N.J. at 131. While there is no set time after which substitution is inappropriate,

Ross, 218 N.J. at 151, "[t]hat critical threshold is passed when 'it is strongly


                                                                                 A-2118-16T2
                                          28
inferable that the [remaining jurors have] made actual fact-findings or reached

determinations of guilt or innocence [and] there is a concern that the new juror

will not play a meaningful role in deliberations.'" Musa, 222 N.J. at 568 (second

and third alterations in original) (quoting Jenkins, 182 N.J. at 132).5 "Thus, a

court must assess whether 'in light of the timing of the juror's dismissal and other

relevant considerations . . . a reconstituted jury will be in a position to conduct

open-minded and fair deliberations.'" Ibid. (quoting Ross, 218 N.J. at 147).

      "The court must be prepared to declare a mistrial if a substitution would

imperil the integrity of the jury's process." Ross, 218 N.J. at 147 (citing State

v. Hightower, 146 N.J. 239, 253-54 (1996)). Our "review of 'a trial court's denial

of a mistrial motion' is also governed by the abuse-of-discretion standard."

Musa, 222 N.J. at 565 (quoting State v. Yough, 208 N.J. 385, 397 (2011)).

      Defendant    contends    substitution   was    inappropriate   because     the

circumstances justifying removal were "not exclusively personal to [the

foreperson] and . . . affected the entire jury." She contends the Court's decision

in Hightower "is directly on point and controls this case." We again disagree.




5
   In Ross, the Court concluded the substitution of an alternate for an ill
deliberating juror was permissible even though the jury had already "deliberated
for a significant period" and indicated it was deadlocked. 218 N.J. at 152.
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                                        29
      In Hightower, during deliberations in the penalty phase of a capital case,

a juror performed outside research, learned that the victim had three children,

and shared that information with other jurors. 146 N.J. at 248-50. While

questioning the jurors on this issue, the court also inadvertently learned the

jurors' positions on the merits of the case, and that the jury was at an advanced

stage of deliberations having made tentative determinations with respect to the

existence of all aggravating and mitigating factors. Id. at 249-50. The court

chose to substitute the juror rather than declare a mistrial. Id. at 250-51. The

reconstituted jury deliberated and returned a verdict of death. Id. at 251.

      The Court reversed, finding error in the juror substitution because it

occurred for reasons that were not exclusively personal to the juror. Id. at 255.

The juror's "misconduct was related to the case and to his interactions with the

other jurors." Ibid.

      Nevertheless,    the   Court   acknowledged     "there   might   be     some

circumstances in which juror misconduct during jury deliberations might permit

substitution of the offending juror[.]"      Ibid.   In this regard, the Court

distinguished our holding in State v. Holloway, 288 N.J. Super. 390 (App. Div.

1996), noting that in Holloway, although the juror substitution occurred due to

juror misconduct and after extensive deliberations, there was no objection to the


                                                                            A-2118-16T2
                                      30
substitution, and the trial court found that the misconduct had not tainted the

remaining jurors.    Hightower, 146 N.J. at 256.      Under the different facts

presented, in Hightower, the Court concluded "the only option available" was

declaring a mistrial. Id. at 255-56.

      In Holloway, the jury reported reaching a verdict. 288 N.J. Super. at 397.

When polled, however, one juror expressed disagreement with the verdict, so

the judge ordered the jury to continue deliberations. Ibid. Thereafter, the

objecting juror asked to speak with the court and told the judge she had dinner

the night before with a relative, who talked about a case involving the

defendant's brother, and indicated that he came from a good family. The juror

said this conversation helped her make a decision, although she denied the

conversation changed her mind. Id. at 397-98, 400-01. She had mentioned the

conversation to the other jurors but had not discussed the substance of the

conversation with them. Id. at 398, 401-02. When questioned by the court, the

other jurors confirmed that they did not know the substance of the juror's

conversation regarding the defendant's family. Id. at 402.

      The prosecutor asked the judge to halt deliberations and remove the

offending juror. Id. at 398-99, 401. The judge found the juror had been tainted

by outside information she received from her relative, id. at 401, substituted an


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                                       31
alternate juror, and instructed the jury to begin deliberations anew. Id. at 399,

401-02. It returned a guilty verdict thereafter. Id. at 402.

        We concluded the trial judge reasonably exercised his discretion in

dismissing the juror, because the "conversation with her relative, together with

her difficulty in the deliberative process, made her 'unable to continue' within

the context of Rule 1:8-2(d)." Id. at 404. In language particularly relevant here,

we said:     "A juror who has once disregarded the court's unambiguous

admonitions is just as likely do so in deciding the merits of the case as well. "

Ibid.

        We also concluded that the juror's problem did not "stem[] from any

interaction in the jury room." Ibid. Rather, it "was personal and based on

improper outside influences, and the record amply demonstrate[d] that [the

juror] was unable to properly deliberate and fulfill her function as a juror." Ibid.

In this regard, we said, "[r]emoval is appropriate where the record clearly

indicates that any taint ha[d] not infected the remaining jurors and no real or

presumed harm ha[d] been done." Id. at 404-05.6


6
   In Jenkins, 182 N.J. at 133 n.2, the Court disapproved of that part of our
holding in Holloway that permitted substitution after the jury had announced its
verdict. The Court found that substitution at that late juncture would not permit
the reconstituted jury to truly deliberate anew.


                                                                            A-2118-16T2
                                        32
      This case has factual similarities and differences to both Hightower and

Holloway. Like Hightower, the foreperson here disclosed his outside research

to the other jurors, whereas in Holloway, the offending juror never disclosed the

substance of her conversations with her relative. But, unlike Hightower, where

the "[j]uror misconduct . . . cause[d] a substantial likelihood that one or more

jurors were impermissibly influenced" so as "to undermine the integrity of a

death penalty trial[,]" 146 N.J. at 265, the judge here found, and the record

supports his conclusion, that the foreperson's research produced no taint. The

judge's voir dire of the other jurors confirms this.

      Furthermore, while in both Hightower and Holloway, the jury's

deliberations were advanced, here, the jury had been deliberating for only a short

period of time.    Also, unlike both of those cases, the jury here was still

considering the evidence, as demonstrated by the playback of testimony that

continued after the jury was reconstituted. See, e.g., Williams, 171 N.J. at 169-

70 (finding no error in substitution after three hours of deliberations and while

jury was requesting read-backs of testimony).

      Under these particular circumstances, we cannot find the judge mistakenly

exercised his discretion by removing the foreperson because of his inability to

continue with deliberations in light of his forbidden internet research. We


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                                        33
therefore also conclude that the judge did not err in denying defendant's mistrial

motion.

      Affirmed.




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                                       34
