                        NOT FOR PUBLICATION WITHOUT THE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-2653-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CSHETARA W. MCLAUGHLIN, a/k/a
CATHERINE MCLAUGHLIN, TARA
MCLAUGHLIN, BEAUTY MCLAUGHLIN,
SHETARA W. MCLAUGHLIN,

     Defendant-Appellant.
___________________________________________

              Argued September 19, 2017 – Decided October 10, 2017

              Before Judges Yannotti and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 13-
              06-0573.

              John Douard, Assistant Deputy Public Defender,
              argued the cause for appellant (Joseph E.
              Krakora, attorney; Mr. Douard, of counsel and
              on the briefs).

              Milton S. Liebowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Thomas K. Isenhour,
              Acting Union County Prosecutor, attorney;
              Stephen W. Bondi, Special Deputy Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).
PER CURIAM

     Defendant was charged with second-degree aggravated assault,

N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault,

N.J.S.A. 2C:12-1b(2) (count two); and third-degree possession of

a weapon (a corkscrew) for an unlawful purpose, N.J.S.A. 2C:39-4d

(count three). The trial judge granted the State's motion to

dismiss count three. Defendant was then tried before a jury and

found guilty on counts one and two.

     The trial judge sentenced defendant to concurrent six-year

terms of incarceration, and required defendant to serve 85% of the

sentence in accordance with the No Early Release Act (NERA),

N.J.S.A.   2C:43-7.2.   Defendant       appeals   from   the   judgment    of

conviction dated January 13, 2016. For the reasons that follow,

we affirm defendant's convictions but remand for resentencing.

                                    I.

     We briefly summarize the evidence presented at trial. On

February 15, 2013, S.M. went to defendant's apartment on Bond

Street in Elizabeth.1 S.M. and defendant were very good friends.

S.M. had arrived at the defendant's apartment sometime in the

early afternoon, left for about an hour in the middle of the day




1
  We use initials when referring to certain individuals, in order
to protect their identities.

                                    2                               A-2653-15T1
and returned. S.M. described defendant's mood as "very heavy" and

different than it usually was when they spent time together.

     B.C. was defendant's boyfriend and defendant's apartment was

his primary residence. According to S.M., defendant was upset with

B.C. because he had not come home for Valentine's Day. S.M.

testified that defendant's mood got worse throughout the day, and

defendant repeatedly said things such as "I'm going to get him,"

"I'm going to beat his ass," and "I'm going to kick him out."

During this time, defendant and S.M. were drinking vodka and wine.

     Later in the afternoon, B.C. arrived at the apartment. S.M.

testified that she and B.C. were with defendant in defendant's

bedroom.     Defendant   was    drinking      vodka.     She   confronted     B.C.

regarding his whereabouts on Valentine's Day, stating that she had

called him and he did not return her call. S.M. testified that

defendant was getting increasingly upset. Defendant was pacing

back and forth. B.C. began to collect his clothes and looked as

though he was preparing to leave the house.

     Defendant and S.M. convinced B.C. not to leave. Eventually,

defendant and B.C. began to argue, and defendant attempted to

leave the house in order to purchase more alcohol. S.M. and B.C.

told defendant they had enough alcohol. During the argument, S.M.

banged   a   wine   bottle     on   the   dresser   in    an   attempt   to   get



                                          3                              A-2653-15T1
defendant's attention and get her to "stop acting crazy." S.M.

testified, however, that she did not break the bottle.

     S.M. and B.C. attempted to convince defendant to remain in

the apartment, but defendant continued her attempt to leave. S.M.

testified that B.C. stood with his back to the bedroom door in an

attempt to prevent defendant from leaving the room. Defendant then

began to argue with S.M., shoved her to the ground and knocked

S.M.'s wig off. Defendant laughed when this happened.

     S.M. testified that after her wig fell off, defendant left

the room. She returned several minutes later with an unidentified

object and stabbed her. S.M. said that defendant cut her lip, arm,

and chest, and that her "whole chest was just . . . split." S.M.

did not see the object that defendant used to cut her, but said

the object was sharp because it sliced her "like you would slice

. . . a piece of meat."

     S.M. further testified that she could see "the inside of

[her] chest" and then the blood "started gushing everywhere." S.M.

ran out of defendant's apartment. According to S.M., defendant

screamed, "I didn't mean to do it" and pursued her. S.M. ran to

the neighbors to get help, and a neighbor called 9-1-1.

     S.M. also stated that although her injury had healed, for two

months she had not been able to take a shower or sit up. She showed



                                4                           A-2653-15T1
the jury her scars from the incident. Photographs of S.M.'s lip,

arm, and chest scars also were admitted as evidence.

     Sergeant Lawrence Smith, an officer of the Elizabeth Police

Department (EPD), testified that on February 15, 2013, he responded

to the first-floor apartment of a residence on Bond Street. Smith

discussed photographs of the outside and the inside of defendant's

apartment. He testified that in the apartment, there was a washing

machine in a small laundry-room area. He saw sheets in the washing

machine and blood on the agitator.

     Smith described his observations of the master bedroom and

the photos taken of that room. He said blood was splattered on the

floor, and there were no sheets on the bed. He saw a pail with

water and two mops. He also saw two corkscrews, one plastic and

one metal; rubber gloves; and a pair of scissors under a broken

chair.

     On cross examination, Smith stated that he did not know whose

blood was depicted in the photos. He said blood was not found on

the scissors. Smith was shown a photo of a bottle, and he testified

that he did not know if the bottle had been knocked down during

the struggle. Smith also said he did not see any blood on the

corkscrew depicted in one of the photos. He testified that the

police did not conclude definitively whether the corkscrew had

been used as a weapon in the incident. He also stated that the

                                5                           A-2653-15T1
photos did not depict any blood on the rubber gloves. In addition,

a photo showed an empty beer bottle, but it did not appear to be

broken.

     After the State rested its case, defendant's attorney moved

for a judgment of acquittal on count two, aggravated assault with

a deadly weapon. The trial judge denied the motion.

     Defendant then presented testimony from Officer Vasilios

Papakostas of the EPD. Papakostas stated that on February 15,

2013, he first responded to a residence on South Park Street,

where he spoke with S.M. Papakostas then proceeded to defendant's

apartment on Bond Street. A black male came to the door and he was

removed   to   the   sidewalk,   detained   and   placed   in   handcuffs.

Papakostas then knocked on the door and asked for defendant. She

came to the door. Papakostas said defendant appeared emotional.

He placed her under arrest and entered the apartment to search for

other possible victims.

     On cross examination, Papakostas testified that when he spoke

to defendant, she said "she wanted to cut me so she got cut." He

also testified that when he found S.M. at the residence on South

Park Street, he observed her chest. One of S.M.'s breasts had been

sliced open and she had lacerations on the tip of her lip and arm.

Papakostas said S.M. was bleeding profusely. He called for medical

assistance.

                                    6                              A-2653-15T1
     Defendant testified that during her argument with S.M., S.M.

knocked a cup out of defendant's hand, and the contents of the cup

splashed into defendant's face. Defendant pushed S.M. to the

ground, causing S.M.'s wig to become displaced. Defendant said she

tried to leave the bedroom and drive to the liquor store, but S.M.

blocked the doorway. S.M. then grabbed a bottle and tried to swing

it over B.C., who was standing between defendant and S.M., in an

attempt to hit defendant. B.C. tried to calm S.M. down and pushed

her away from defendant as defendant got dressed.

     Defendant further testified that she heard "clinking sounds"

and saw S.M. trying to crack the bottle. B.C. again positioned

himself between defendant and S.M. as S.M. swung the cracked bottle

at defendant. Defendant stated that she grabbed S.M. in an attempt

to "clinch" her while S.M. was still holding the broken bottle.

Defendant   then   looked   down   and   saw   blood   on   the   floor.   She

followed S.M. when S.M. ran out of the house. Defendant testified

that she spoke with S.M. for three minutes in front of defendant's

house. Defendant attempted to get S.M. to come back into the house,

but S.M. ran up the street.

     B.C. also testified for the defense. He stated that he had

known defendant for about four years and in February 2013, she was

his girlfriend. B.C. said he knew S.M. through defendant. On

February 15, 2013, B.C. went to defendant's apartment. S.M. and

                                     7                               A-2653-15T1
defendant were there talking and watching television. At one point,

S.M. left the apartment, and she was gone for about an hour or

two. When S.M. returned, she was "erratic." According to B.C.,

S.M. again left the apartment for about an hour. When she returned,

they drank wine.

     B.C. said S.M. was speaking with defendant in defendant's

bedroom, and he was on the bed watching television. At some point,

defendant attempted to leave the apartment. S.M. was standing by

the bedroom door, and defendant was by the windows. S.M. and

defendant   were   arguing   and   the   argument   began   to   escalate.

According to B.C., S.M. became loud and irate. She smacked a bottle

out of defendant's hand, and defendant pushed S.M. away. They were

yelling at each other, and B.C. stepped between them. He heard

S.M. cracking the bottle on the side of the wall and asked S.M.

to put the bottle down.

     B.C. testified that S.M. attempted to swing the bottle over

him, and he stepped out of the way. Defendant came around B.C.'s

left side. S.M. and defendant grabbed each other and then let each

other go. At that point, B.C. saw blood. S.M. ran out of the house

and defendant followed her. Defendant returned to the house and

B.C. instructed her to clean the blood by the front door.

     As we stated previously, the jury found defendant guilty on

count one, second-degree aggravated assault, contrary to N.J.S.A.

                                    8                              A-2653-15T1
2C:12-1b(1);     and   count   two,   third-degree   aggravated   assault,

contrary    to   N.J.S.A.   2C:12-1b(2).    The   judge   later   sentenced

defendant and entered the judgment of conviction. This appeal

followed.

     On appeal, defendant raises the following arguments:

            POINT I

            THE CONVICTIONS FOR AGGRAVATED ASSAULT UNDER
            N.J.S.A. 2C:12-1B(1) AND (2) MUST BE REVERSED
            BECAUSE THE STATE FAILED TO PROVE BEYOND A
            REASONABLE DOUBT THE ESSENTIAL ELEMENTS THAT
            DEFENDANT EITHER CAUSED OR ATTEMPTED TO CAUSE
            SERIOUS BODILY INJURY. (Partially Raised
            Below).

            A. The State Failed To Prove Beyond A
            Reasonable Doubt All of the Elements Of Third-
            Degree Aggravated Assault With A Deadly
            Weapon.

            B. Counsel Was Ineffective For Failing To Move
            For A Judgment of Acquittal As To Second-
            Degree Aggravated Assault, Because The State
            Had Failed To Prove [Defendant] knowingly,
            Purposely, Or Recklessly Caused [S.M.'s]
            Injuries.

            POINT II

            THE   SIX-YEAR  SENTENCE   FOR        THIRD-DEGREE
            AGGRAVATED ASSAULT IS ILLEGAL.

                                      II.

     We turn first to defendant's argument that her conviction for

third-degree aggravated assault under N.J.S.A. 2C:12-1b(2) must

be reversed. On this charge, the State was required to prove that


                                       9                            A-2653-15T1
defendant: (1) caused bodily injury to another; (2) caused bodily

injury by use of a deadly weapon; and (3) acted purposely or

knowingly. Ibid.

     "Bodily injury" is defined as "physical pain, illness or any

impairment   of   [the]   physical   condition"   of   another.   N.J.S.A.

2C:11-1a. In addition, "deadly weapon" is defined as

          Any   firearm   or  other   weapon,   device,
          instrument, material or substance, whether
          animate or inanimate, which in the manner it
          is used or intended to be used, is known to
          be capable of producing death or serious
          bodily injury or which in the manner it is
          fashioned would lead the victim reasonably to
          believe it to be capable of producing death
          or serious bodily injury.

          [N.J.S.A. 2C:11-1c.]

     After the State rested its case, defendant moved pursuant to

Rule 3:18-1 for a judgment of acquittal on the charge of aggravated

assault with a deadly weapon. Defendant's attorney argued that the

State had not presented any evidence to establish the weapon that

defendant allegedly used to assault S.M.

     The assistant prosecutor argued that the motion should be

denied. The prosecutor asserted that the State was not required

to present evidence establishing the specific weapon used. She

noted that the victim was not sure what the weapon was. The

prosecutor stated that the State had presented evidence showing

the injuries that S.M. sustained, and that defense counsel had not

                                     10                            A-2653-15T1
argued these were not serious bodily injuries. She asserted that

the State had presented sufficient evidence to show that the

injuries had been caused by a weapon capable of producing death

or serious bodily injury.

       The judge placed his decision on the record. The judge noted

that the court must view the evidence in its entirety, and give

the State the benefit of all favorable testimony and inferences

that   could   be   drawn   from   the    evidence.   The   court   then   must

determine whether a reasonable jury could find that the State had

proven all elements of the offense beyond a reasonable doubt.

       The judge noted that S.M. had testified that she was in

defendant's apartment when defendant slashed her with a sharp

object, causing injuries to her lip, chest, and arm. The judge

also noted that the State had introduced photos of S.M.'s injuries.

       The judge determined that from the nature of S.M.'s injuries,

a jury could infer that the injuries had been caused by an

instrumentality that "could be deemed a deadly weapon." The judge

stated that the jurors were free to accept the testimony they

heard, and should they do so, the evidence would be sufficient to

warrant conviction on the charge of aggravated assault with a

deadly weapon.

       On appeal, defendant argues that the judge erred by denying

the motion for acquittal. She contends that the judge mistakenly

                                     11                               A-2653-15T1
found that based on the State's evidence, a reasonable juror could

find that the injuries were inflicted with a deadly weapon. She

asserts that the State did not produce any weapon, including the

bottle and the corkscrew mentioned in the testimony. She also

asserts that the manner in which S.M. received the injuries was

established     only   by   S.M.'s   testimony,   which   was   disputed    by

defendant's and B.C.'s testimony.

     Defendant further argues that even if S.M. suffered the sort

of serious bodily injuries she described, her testimony did not

provide   the   jury   with   sufficient   evidence   to   establish     that

defendant acted purposely, knowingly, or recklessly. Defendant

argues that if the altercation "demonstrated" that she acted with

"a measure of indifference" to S.M., that was insufficient to

constitute aggravated assault.

     Rule 3:18-1 provides that at the close of the State's case

or after all evidence has been presented, the trial court shall,

on a motion by defendant or on its own initiative, "order the

entry of a judgment of acquittal of one or more offenses charged

in the indictment or accusation if the evidence is insufficient

to warrant a conviction." On appeal, we apply the same standard

when deciding whether the trial judge should have ordered the

entry of a judgment of acquittal. State v. Moffa, 42 N.J. 258, 263

(1964).

                                      12                             A-2653-15T1
       In determining whether a motion under Rule 3:18-1 should be

granted, the trial judge views the State's evidence "in its

entirety, be that evidence direct or circumstantial," and gives

the State "the benefit of all its favorable testimony as well as

all of the favorable inferences which reasonably could be drawn

therefrom." State v. Reyes, 50 N.J. 454, 458-59 (1967). The judge

then   determines   whether   "a     reasonable    jury   could     find"    the

defendant guilty "of the charge beyond a reasonable doubt." Ibid.

       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. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif.

denied, 77   N.J.   473   (1978).    "If    the   evidence   satisfies      that

standard, the motion must be denied." State v. Spivey, 179 N.J.

229, 236 (2004).

       Here, the trial judge correctly found that the State had

presented sufficient evidence to allow the jury to find that

defendant was guilty beyond a reasonable doubt of aggravated

assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2).

As we have explained, S.M. testified that on February 15, 2013,

defendant had been drinking, was angry and upset with B.C., wanted

to leave the apartment to obtain more liquor, and shoved S.M. to

the ground in anger.

                                     13                                A-2653-15T1
     S.M. testified     that she was with defendant and B.C. in

defendant's bedroom. Defendant left the room briefly, and when she

returned, she stabbed S.M. in the face and cut her arm and breast.

S.M. said the injuries caused significant bleeding. Photos of

S.M.'s injuries were admitted into evidence. Among other things,

the photos showed the blood on the floor of the bedroom.

     The State did not present the weapon that defendant allegedly

used to injure the victim, but Sergeant Smith testified that two

corkscrews and a pair of scissors had been found in the bedroom

where the alleged assault took place. The jury could reasonably

infer that one of these objects was capable of producing S.M.'s

injuries.

     In any event, S.M.'s injuries themselves were sufficient to

show that she was attacked with an instrument "which in the manner

it is used . . . is known to be capable of producing . . . serious

bodily injury," even if that instrument was removed, concealed,

destroyed, or otherwise was not found. See N.J.S.A. 2C:11-1(c).

Whatever the instrument was, S.M. said it sliced through her like

a knife through meat.

     Thus, based on the evidence presented by the State, the jury

could reasonably find that the State had proven beyond a reasonable

doubt   that   defendant   assaulted   S.M.   with   a   deadly   weapon.

Furthermore, S.M.'s testimony was sufficient for the jury to find

                                 14                               A-2653-15T1
beyond a reasonable doubt that defendant acted with the requisite

mental state. We therefore conclude that the judge did not err by

denying defendant's motion for a judgment of acquittal on count

two.

                                   III.

       In her brief, defendant argues that she was denied the

effective assistance of trial counsel. She contends her trial

counsel was deficient because he failed to seek a judgment of

acquittal on count one, which charged second-degree aggravated

assault, contrary to N.J.S.A. 2C:12-1b(1). Defendant argues that

her attorney should have made a Rule 3:18-1 motion and argued that

the State failed to prove that she knowingly, purposely, or

recklessly caused S.M.'s injuries.

       At argument, however, defendant's appellate counsel withdrew

this contention, and said he preferred to reserve this claim of

ineffective   assistance    of    counsel   for   a   petition    for     post-

conviction relief (PCR). Therefore, we will affirm defendant's

conviction    on   count   one,   without    prejudice    to     defendant's

asserting this claim of ineffective assistance of counsel in a

timely-filed PCR petition.

                                    IV.

       Defendant notes that at sentencing, the trial court stated

he was sentencing defendant to six years of incarceration, and

                                    15                                  A-2653-15T1
requiring that she serve 85% of that sentence, pursuant to NERA.

Defendant asserts, however, that the judge did not specify the

offense for which the six-year sentence was imposed.

     Furthermore, in the judgment of conviction, the judge imposed

a six-year prison term on both count one (second-degree aggravated

assault),   and   count   two   (third-degree   aggravated   assault).

Defendant argues that a six-year sentence on count two is illegal

because it is not within the range of sentences for third-degree

offenses. N.J.S.A. 2C:43-6a(3) (ordinary term for third-degree

offense is between three and five years). Therefore, defendant

argues the matter must be remanded for resentencing.

     The State agrees the matter must be remanded for resentencing,

noting that at sentencing, the judge did not specifically address

count two. The State also asserts that on remand, the trial court

should address whether counts one and two merge for sentencing

purposes.

     Although the State argues in its brief that the sentence

imposed on count one should be affirmed, and the remand limited

to resentencing on count two, at oral argument, the parties agreed

and we are convinced that the matter should be remanded for

resentencing on both counts. We reach this conclusion because of

the lack of specificity in the sentences imposed on the record,



                                  16                           A-2653-15T1
the judgment of conviction which imposed six-year terms on both

counts, and the need to address the merger issue.

    Accordingly, defendant's convictions on counts one and two

are affirmed, and the matter is remanded for resentencing on both

counts.

    Affirmed    in   part   and   remanded   to   the   trial   court   for

resentencing in accordance with this opinion. We do not retain

jurisdiction.




                                   17                              A-2653-15T1
