                                 NOT FOR PUBLICATION WITHOUT THE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-2632-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GUAROA SOLANO-TRINIDAD,
a/k/a GUAROA SOLANO,

     Defendant-Appellant.
_____________________________

                   Submitted February 11, 2019 – Decided June 19, 2019

                   Before Judges Sumners and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 12-07-0588.

                   Joseph E. Krakora, Public Defender, attorney for appellant
                   (Suzannah Brown, Designated Counsel, on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor, attorney
                   for respondent (Ali Y. Ozbek, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Guaroa Solano-Trinidad appeals from his jury conviction for

third-degree terroristic threats involving a threat to commit a crime of violence.

Defendant contends:

            POINT I

            THE TRIAL COURT ERRED BY PERMITTING THE
            STATE    TO     IMPROPERLY   INTRODUCE
            IRRELEVANT      EVIDENCE   TO    PROVE
            [DEFENDANT'S] PROPENSITY TO COMMIT THE
            CRIMES CHARGED, THEREBY PREJUDICING HIS
            RIGHT TO A FAIR TRIAL.

            POINT II

            [DEFENDANT'S]     TERRORISTIC THREAT
            CONVICTION MUST BE REVERSED DUE TO
            PROSECUTORIAL      MISCONDUCT DURING
            SUMMATION. (Not raised below)

            A.  THE PROSECUTOR                 MISSTATED        THE
            EVIDENCE.

            B.  ADDITIONAL IMPROPRIETY OF THE
            PROSECUTOR'S    COMMENTS     REGARDING
            [DEFENDANT'S] CRIMINAL HISTORY.

            C.  IMPROPER COMMENT REGARDING THE
            OBLIGATIONS OF THE JURY.

            POINT III

            [DEFENDANT'S]   TERRORISTIC  THREAT
            CONVICTION MUST BE REVERSED DUE TO
            ERRORS IN THE JURY CHARGE. (Not raised
            below)

                                                                          A-2632-16T1
                                        2
            A.  ERRORS IN THE TERRORISTIC THREATS
            CHARGE REQUIRE REVERSAL.

            B.  THE FAILURE TO CHARGE HARASSMENT
            AS A LESSER-INCLUDED OFFENSE OF
            TERRORISTIC THREATS REQUIRES REVERSAL.

After reviewing the record in light of the contentions advanced on appeal, we

affirm.

                                        I

      Around noon on January 26, 2012, defendant and his disabled mother took

a taxicab home from her doctor's appointment in Paterson. During the ride,

defendant and the taxi driver argued over the proper route, which prompted the

driver to direct defendant and his mother to exit the vehicle, leaving them short

of their destination. Later that same day, while driving to make a complaint

with the taxi company, defendant spotted the taxi driver and pulled up next to

him. Defendant got out of his car, walked up to the taxicab and slammed a black

object on the roof, causing the taxi driver to immediately drive away. One of

the State's witnesses testified that defendant had a black gun in his hand and

pointed it at the taxi driver while three other passengers and two children were

inside. However, the taxi driver and one other State witness, were uncertain of

whether the object in defendant's hand was a gun. Defendant claimed he struck



                                                                         A-2632-16T1
                                       3
the taxi with a cell phone. The State did not recover the gun that was allegedly

used by defendant in the incident.

      Upon arriving at the taxi company, defendant exclaimed that the taxi

driver "needed to leave Paterson, because if he sees him he[] was going to end

up in St. Joseph's Hospital." Defendant left the office and drove to the Taxi

Commissioner, located in the same building as the police station.         While

speaking with the Commissioner, defendant learned a complaint was lodged

against him, and he decided to inquire about the issue with the police. Moments

after leaving the Commissioner's office, defendant went into the police station,

where he was placed under arrest.

      Following an eight-day trial, the jury found defendant guilty of third-

degree terroristic threats involving a threat to commit a crime of violence and

imminent death. They determined he was not guilty of fourth-degree aggravated

assault with a firearm, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a

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

possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree certain

persons not to have weapons due to prior convictions, N.J.S.A. 2C:39-7(b).




                                                                        A-2632-16T1
                                       4
                                        II

      In Point I, defendant contends the State improperly solicited irrelevant and

bad character testimony from him on cross-examination regarding his reasons

for leaving his past employment. We disagree.

      Testifying in his defense, defendant was allowed to testify on direct

examination about his relationship with his mother, insinuating it was his

concern for her that caused him to be enraged at the taxi driver. The trial judge

overruled the prosecutor's relevancy objection, who argued:

            This is clearly just a clear play for sympathy here. It's
            already been brought up. I think counsel [has] already
            had some leeway, the defense has had some leeway here
            with this. And I think this is just padding at this point.

      Defense counsel countered:

            It's very relevant . . . for this issue, he's charged with
            terroristic threats. We know by the charge the [c]ourt
            gives to the jury it's something to send anger and . . .
            it's just to annoy. That's not a terroristic threat. This
            was his mother. She got caught in the middle of
            [nowhere] in a high crime area. She was an invalid.
            She had to use her cane. She's disabled. He is PO'd,
            he's aggravated.

                  What made him aggravated if he does nothing for
            his mother? If [he] has no relationship, what's the
            difference? I'm not going to harp on it, but I think to
            bring out . . . just basically what he does, basically for
            her and she's already testified to it anyway.


                                                                          A-2632-16T1
                                        5
      The judge found the testimony relevant, stating:

            The relevancy is the nature of the charges and . . . now
            the defense has opened the door with regard to his
            relationship. The State has the right now because his
            character is at issue now that he's a person who did what
            he did to help his mother. So I will allow you [on] cross
            [to] get into that area.

      As a result, the State sought to cross-examine defendant regarding his

erratic past employment for various taxi companies, to which defense counsel

objected on grounds that the testimony was irrelevant. The State countered:

            [T]he relevancy . . . is that [defense counsel] is,
            obviously, going to now argue that [defendant] was
            simply . . . it was an isolated incident that his mother
            was left on the side of the road and he was irate . . . and
            alike. I want to know why he left these location[s] . . .
            because it's very sporadic employment.

The judge allowed the line of questioning, but cautioned:

            [Y]ou already established a point that . . . people did
            not trust him that came out. He said he would agree he
            was not a popular guy. Now if you ask him how many
            jobs did he have in [twenty-two] years and did he last
            anything more than six months, a year, you can move
            on. On those jobs you've got to focus on if he stayed
            for two or three years at a job, why am I spending time
            on something. If he spent two months, okay.

      The State continued with its line of questioning regarding defendant's past

employment, and after asking defendant about his employment at a clothing



                                                                          A-2632-16T1
                                        6
store, defense counsel again objected on relevancy grounds.               The State

countered, arguing:

             [D]efense suggests [the taxi driver incident] was just a
             fleeting episode. My argument . . . is that his
             personality, how can I say it, . . . he is a person prone
             to anger and [self-righteousness] such that . . . he would
             actually threaten somebody with a gun.

                   ....

             Some[one] who is prone, I would submit, that rather
             than to counter the argument that this was just a fleeting
             episode, that he has a history of anger an outbursts.

      The judge, noting his earlier remarks that defendant opened the door with

his testimony about his affection toward his mother, allowed the testimony,

subject to his discretion to exclude any testimony that would be unduly

prejudicial to defendant. He further found that although the testimony had

minimal probative value, it was not outweighed by its prejudicial effect to

defendant.

      Defendant argues before us that the testimony was irrelevant and

constituted inadmissible evidence of his bad character in violation of N.J.R.E.

404(a) and 404(b). The testimony, he reasons, was unduly prejudicial because

the jury could infer that he is "a difficult, angry person." He asserts further that

even if the testimony was relevant, he never referred to his good character, and


                                                                            A-2632-16T1
                                         7
therefore did not open the door for the State to introduce evidence of his bad

character through his past employment behavior. He thus posits the judge

should have either ordered an N.J.R.E. 104 hearing, provided a limiting

instruction to the jury on the appropriate and prohibited uses of the evidence, or

excluded the testimony.

      We review a trial judge' evidentiary rulings on an abuse of discretion

standard. State v. J.M., 225 N.J. 146, 157 (2016). N.J.R.E. 404 governs the

admissibility of character evidence. Subpart (a) generally prohibits "[e]vidence

of a person's character . . . including a trait of care or skill or lack thereof . . .

for the purpose of proving that the person acted in conformity therewith on a

particular occasion[.]" Subpart (b) provides that evidence of other crimes or bad

acts is generally not admissible, unless used for "proof of motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of mistake or accident

when such matters are relevant to a material issue in dispute."

      That said, the prosecution presented testimony regarding defendant's past

employment history to refute defendant's testimony that his aggressive and

threatening response to the taxi driver was based solely out of care towards his

mother, and an isolated incident. Thus, defendant's claim is barred by the




                                                                              A-2632-16T1
                                          8
doctrine of invited error. Although the judge did not give a limiting instruction,

the doctrine bars any claim of prejudice.

      Under invited error, "trial errors that 'were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are not a basis for

reversal on appeal . . . .'" State v. Bailey, 231 N.J. 474, 490 (2018) (quoting

State v. A.R., 213 N.J. 542, 561 (2013)). "The doctrine of invited error does not

permit a defendant to pursue a strategy of allowing a . . . witness to testify —

hopefully to his advantage — and then when the strategy does not work out as

planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101

(2014). Our Supreme Court declared, "[t]o justify reversal on the grounds of an

invited error, a defendant must show that the error was so egregious as to 'cut

mortally into his substantive rights . . . .'" State v. Ramseur, 106 N.J. 123, 282

(1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974)).

Defendant cannot do that.

      Defendant's direct examination testimony "opened" the door by testifying

that he was only prone to anger because his mother was told to unceremoniously

exit the taxicab. The State's cross-examination strategy to make the jury aware

of defendant's disruptive conduct at multiple prior jobs was relevant because it

was in direct response to his attempt to persuade the jury that he was only angry


                                                                          A-2632-16T1
                                        9
at the taxi driver due to the manner in which the taxi driver treated his mother.

Hence, the judge did not abuse his discretion to admit evidence of defendant's

past employment history.

                                        III

      In Point II, defendant argues for the first time on appeal that the prosecutor

engaged in misconduct by making four statements during closing argument that

were prejudicial because they misstated the evidence. Because defendant made

no objection to any of the prosecutor's comments, we review his challenge for

plain error, meaning that defendant must demonstrate that an error was "clearly

capable of producing an unjust result." R. 2:10-2. In other words, the error was

"'sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442,

454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must

prove that a plain error was clear and obvious and that it affected his substantial

rights. State v. Chew, 150 N.J. 30, 82 (1997) (citation omitted).

      Before we address the closing remarks that allegedly constitute

prosecutorial misconduct, we point out the principles that guide our review.

"Prosecutorial misconduct may be grounds for reversal where the misconduct

'was so egregious that it deprived the defendant of a fair trial.'" State v. Kane,


                                                                            A-2632-16T1
                                       10
449 N.J. Super. 119, 140 (App. Div. 2017) (citing State v. Frost, 158 N.J. 76, 83

(1999)).   While a prosecutor "in . . . summation may suggest legitimate

inferences to be drawn from the record," a prosecutor "commits misconduct

when [the summation] goes beyond the facts before the jury." State v. Harris,

156 N.J. 122, 194 (1998). "The challenged comment 'must have been clearly

and unmistakably improper, and must have substantially prejudiced defendant's

fundamental right to have a jury fairly evaluate the merits of his defense.'" State

v. McGuire, 419 N.J. Super. 88, 150 (App. Div. 2011) (quoting State v.

Timmendequas, 161 N.J. 515, 575 (2001)).

      Generally, if no objection was made regarding the prosecutor's remarks,

they will not be deemed prejudicial. Kane, 449 N.J. Super. at 141 (quoting Frost,

158 N.J. at 83). "The failure to object suggests that defense counsel did not

believe the remarks were prejudicial at the time they were made." Frost, 158

N.J. at 84. "The failure to object also deprives the court of an opportunity to

take curative action." Ibid. (citing State v. Bauman, 298 N.J. Super. 176, 207

(App. Div. 1997)).

      We now separately address the purported statements of prosecutorial

misconduct, highlighting the specific parts defendant alleges are egregious.




                                                                           A-2632-16T1
                                       11
      Remark Number One

            Prosecutor:
            And what does he say? He tells them if I see [the taxi
            driver] . . . he better get out of . . . town, or he's going
            to end up in St. Jo[seph's Hospital]. What is he telling
            you? He's going to hurt him. He's going to injure him
            or wor[se], ladies and gentleman. And how's he going
            to do that, I submit to you with a gun. And, again, the
            defendant doesn't deny this he admits it.

            [(Emphasis added).]

      Defendant stresses the prosecutor improperly urged the jury to make a

factual finding that defendant intended to shoot the taxi driver, and misstated

the evidence by inferring that defendant admitted to attempting to kill the taxi

driver, when there was no such evidence to support that assertion. As support,

he cites State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008), where this court

ruled that a prosecutor's remarks were reversible error. There, we concluded

that the prosecutor's remarks "refer[ing] to defendant as 'drunk' or 'blotto' when

the evidence did not support the inference that defendant met the legal standard

for intoxication" would, alone, lead to reversible error. Id. at 337. We were

also "offended by the prosecutor's comment: 'he's closing in on the kill[,]'"

without any "evidence whatsoever that defendant acted intentionally or that he

was in any way focused on hitting the victims, as this remark suggests ." Ibid.

We are unpersuaded.

                                                                           A-2632-16T1
                                       12
      Contrary to defendant's assertions, the closing remarks in Atwater are

unlike the closing remarks in this case. Here, despite the fact that a gun was

never recovered, there is a factual basis for the prosecutor's statement that

defendant threatened to injure the taxi driver with a gun. Thus, it is a fair

comment based upon the trial testimony of one witness that defendant struck the

taxicab's roof with a gun. Consequently, the prosecutor's statement was a

legitimate inference based on the record. The fact that the jury found defendant

not guilty of the weapons related charges demonstrates the prosecutor's remark

did not produce an unjust result.

      Remark Number Two

             Prosecutor:
             You saw [defendant] on the stand. He knows better
             than everybody else. And no one is going to tell him
             what's what. He's going to tell everyone what's what.
             And when he feels disrespected . . . he takes action. He
             takes a gun and he stalks that man and he tells him, he
             tells everyone, he makes it clear you're going to end up
             in St. Jo[seph's Hospital]. I'm going to hurt you.

             [(Emphasis added).]

      Defendant contends the statement was prejudicial for two reasons. First,

the accusation that the taxi driver would end up in the hospital was not made

directly to the taxi driver, but to a third party, constituting a misstatement of the

testimony presented at trial. Second, there was no evidence to support the notion

                                                                             A-2632-16T1
                                        13
that defendant "stalked" the taxi driver because his testimony revealed that he

happened to come across the taxi driver while he was on his way to the taxi

company to file a complaint.

      The statement is a reasonable inference from the facts provided. While

defendant claimed he coincidentally saw the taxi driver, neither the State nor the

jury had to accept defendant's assertion. Although the term "stalks" is strong

language, it was reasonable for the prosecutor to infer defendant was looking

for the taxi driver given defendant's conduct of pulling in front of the taxicab to

block it, and then angrily bang on the hood with an object before the taxi driver

was able to get away. Defendant's anger and retribution towards the taxi driver

was further evidenced by his subsequent threat that if he did not leave town, he

might end up in the hospital. We discern no unjust result from the statement.

      Remark Number Three

            Prosecutor:
            So, ladies and gentleman, you've heard the [State's]
            witnesses. . . . They came here and just told you what
            they saw.
                  Who has . . . skin in the game? The defendant.
            A man who[] not once, not twice, not three times [sic],
            been convicted of [third-degree] crimes. He's the one.
            He corroborates everything they said. But he wants to
            put that one spin, but it's the critical one. It wasn't a
            gun.

            [(Emphasis added).]

                                                                           A-2632-16T1
                                       14
      Defendant argues the prosecutor's misstatement of his criminal history

constitutes reversible error. He pled guilty to three third-degree offenses, which

arose from a single incident. However, he argues the prosecutor's assertion that

he was convicted of three crimes infers that he was guilty for crimes related to

three separate incidents. He maintains the prosecutor's use and misstatement of

his criminal history was used to show "that he had a lot to lose if he were

convicted," and, therefore, unfairly prejudiced him during trial. We disagree.

      There is no question that the reference to the convictions were a proper

attempt by the State to impeach defendant's testimony. See State v. Brunson,

132 N.J. 377, 394 (1993). It was fair comment for the prosecutor to stress that

defendant had three convictions without explaining they arose from a single

incident.   The fact that defendant was only convicted of terroristic threats

indicates the statement did not cause an unjust result. Therefore, defendant was

not substantially prejudiced, requiring reversal of his conviction.

      Remark Number Four

             Prosecutor:
             Ladies and Gentleman, now it's your time. You have
             the last word now. I submit to you when you review all
             the evidence you will be convinced beyond a
             reasonable doubt each and every one of the crime[s] as
             charged were proven. And I ask you to do your duty
             and find each and every element proven beyond a


                                                                          A-2632-16T1
                                       15
             reasonable doubt. Your duty is that you must find
             defendant guilty.

             [(Emphasis added).]

      Defendant contends the statement improperly instructed the jury they

were obligated to find him guilty on all crimes, rather than make their own

determinations based on the evidence presented at trial. We disagree.

      Prosecutors are entitled to zealously argue the merits of the State's case.

State v. Smith, 212 N.J. 365, 403 (2012). Here, the prosecutor was merely

telling the jurors that in fulfilling their oath as jurors, they should find defendant

guilty of all crimes charged based upon the evidence presented during the trial.

There was no unjust result created by the statement.

      In sum, none of the prosecutor's remarks constitutes prejudicial error.

Moreover, the fact that the jury only found defendant guilty of terroristic threats

belies many of defendant's contentions.

                                         IV

      Finally, in Point III defendant asserts for the first time on appeal that there

were two errors in the jury charge regarding terroristic threats and the failure to

include the lesser-included offense of harassment which each warrant a reversal

of his conviction because they were capable of leading the jury to reach an unjust



                                                                              A-2632-16T1
                                         16
result. R. 2:10-2; see Macon, 57 N.J. at 336. We discern no merit to defendant's

contentions.

       To be sure, we recognize that "[a]ppropriate and proper charges to a jury

are essential for a fair trial[,]" State v. Green, 86 N.J. 281, 287 (1981), and that

the trial court has an "independent duty . . . to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each

case[.]" State v. Reddish, 181 N.J. 553, 613 (2004). An alleged unchallenged

error in the jury charge is analyzed "in light of 'the totality of the entire charge,

not in isolation.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).

                                           A.

       In accordance with N.J.S.A. 2C:12-3, a person is guilty of third degree

terroristic threats :

               (a.) . . . if he threatens to commit any crime of violence
               with the purpose to terrorize another or to cause
               evacuation of a building, place of assembly, or facility
               of public transportation, or otherwise to cause serious
               public inconvenience, or in reckless disregard of the
               risk of causing such terror or inconvenience.

               (b.) . . . if he threatens to kill another with the purpose
               to put him in imminent fear of death under
               circumstances reasonably causing the victim to believe
               the immediacy of the threat and the likelihood that it
               will be carried out.

                                                                             A-2632-16T1
                                          17
      Defendant argues the jury charge was egregious because it failed to

mention N.J.S.A. 2C:12-3(b), even though he was indicted under "N.J.S.[A].

2C:12-3(a) and/or N.J.S.[A]. 2C:12-3(b)."         This omission, according to

defendant, is material and contrary to the indictment as the jury could have

concluded that satisfying the elements under N.J.S.A. 2C:12-3(a) alone

established guilt. There is no legal or factual support for this contention. In

charging subpart (a) "and/or" subpart (b), the indictment merely stated defendant

was charged with both subparts. However, since there was no evidence that he

"threaten[ed] to kill [the taxi driver] with the purpose to put him in imminent

fear of death," there was no factual basis for the trial judge to instruct the jury

on subpart (b). To do so would have been unnecessary, and possibly confusing

to the jury.

      Defendant threatened the taxi driver when he stated, "tell him if I see him

he's going to end up in St. Jo[seph's Hospital]." It would be unreasonable to

conclude the jury would find the statement suggested defendant was threatening

to kill the taxi driver with the purpose of placing him in fear of imminent death.

Since defendant did not object to this omission at trial, it is presumed that he

felt there was no error in the charge and, therefore, was unlikely to lead to an

unjust result.


                                                                           A-2632-16T1
                                       18
      Defendant additionally contends the judge incorrectly instructed the jury

that the "threatened crime of violence" in question under N.J.S.A. 2C:12-3(a)

was aggravated assault. He maintains that an individual cannot "threaten to

attempt to commit a crime of violence[,]" and the judge should not have

instructed the jury that aggravated assault could be found if defendant

"attempted to cause serious bodily injury," while failing to instruct the jury on

the definition of serious bodily injury. The jury, he asserts, should have been

instructed on the differences between aggravated assault and simple assault

because a "threat to commit a disorderly persons offense, such as simple assault,

does not" satisfy the "crime of violence" element under N.J.S.A. 2C:12-3(a).

      Defendant's argument that "it is impossible for one to threaten to attempt

to commit a crime of violence[,]" appears to be a misunderstanding of the

statute. N.J.S.A. 2C:12-3(a) requires a threat to commit any crime of violence.

The judge properly instructed the jury on aggravated assault stating, "[a] person

is guilty of aggravated assault if he attempts to cause serious bodily injury to

another." This was appropriate given that defendant allegedly threatened the

taxi driver by declaring that if he did not leave town and defendant saw him,

defendant would injure him to the extent that he would have to go to the hospital.

Although there is no certainty that the threat would have actually resulted in


                                                                          A-2632-16T1
                                       19
serious bodily injury to the taxi driver, the jury could reasonably infer that

defendant threatened to purposefully engage in conduct that would constitute

serious bodily injury. Therefore, defendant has not shown the instruction was

clearly capable of creating an unjust result.

                                        B.

      Lastly, defendant contends the judge should have sua sponte instructed

the jury on harassment as a lesser-included offense of terroristic threats. He

stresses the jury could have found his threatening statement that the taxi driver

"would end up in St. Jo[seph's Hospital]" constituted harassment under N.J.S.A.

2C:33-4(a). He surmises that even though "the jury may well have felt that [he]

did . . . something illegal by stating [the taxi driver] would 'end up in [the

hospital,]'" it had no other option than to convict for terroristic threats, despite

a lack of evidence that a gun was involved.

      Lesser-included offense instructions are intended to avoid "the possibility

of an all-or-nothing verdict[.]" State v. Muniz, 118 N.J. 319 (1990); see State

v. Short, 131 N.J. 47, 54 (1993) (explaining that a jury "may be tempted to find

[a] defendant guilty of a crime he or she did not commit simply because it prefers

to convict on some crime rather than no crime at all."). That said, N.J.S.A. 2C:1-

8(e) directs that a trial judge "shall not charge the jury with respect to an


                                                                            A-2632-16T1
                                        20
included offense unless there is a rational basis for a verdict convicting the

defendant of the included offense." Our Supreme Court has long interpreted the

statute's directive as requiring satisfaction of a two-part test: "(1) that the

requested charge satisfy the definition of an included offense set forth in

N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to

support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131

(2006). Under N.J.S.A. 2C:1-8(d), an offense is an included offense when:

            (1) It is established by proof of the same or less than all
            of the facts required to establish the commission of the
            offense charged; or

            (2) It consists of an attempt or conspiracy to commit the
            offense charged or to commit an offense otherwise
            included therein; or

            (3) It differs from the offense charged only in the
            respect that a less serious injury or risk of injury to the
            same person, property or public interest or a lesser kind
            of culpability suffices to establish its commission.

      In the absence of a request by defense counsel, "a trial [judge] has an

independent obligation to instruct on lesser-included charges when the facts

adduced at trial clearly indicate that a jury could convict on the lesser while

acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004)

(citing State v. Garron, 177 N.J. 147, 180 (2003)). Conversely, the judge "ha[s]

no duty to instruct the jury sua sponte on [an included offense charge if] the

                                                                          A-2632-16T1
                                       21
evidence [does] not clearly indicate or warrant such a charge." State v. Savage,

172 N.J. 374, 401 (2002) (citations omitted). The judge is not required to

"meticulously sift through" every trial record, just in case an unquestioned

charge might be supported. Thomas, 187 N.J. at 134 (quoting State v. Choice,

98 N.J. 295, 299 (1985)).

      In accordance with N.J.S.A. 2C:33-4, harassment is committed when a

person:

            a. Makes, or causes to be made, a communication or
            communications anonymously or at extremely
            inconvenient hours, or in offensively coarse language,
            or any other manner likely to cause annoyance or alarm;

            b. Subjects another to striking, kicking, shoving, or
            other offensive touching, or threatens to do so; or

            c. Engages in any other course of alarming conduct or
            of repeatedly committed acts with purpose to alarm or
            seriously annoy such other person.

Harassment requires that the defendant act with the purpose of harassing the taxi

driver. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon

sense and experience" when determining a defendant's intent. State v. Hoffman,

149 N.J. 564, 577 (1997).

      Guided by these principles, we conclude that the evidence presented at

trial did not support a lesser-included charge of harassment. The accusations


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against defendant were more involved than mere "harsh communication" or the

possibility of "offensive touching." One witness testified that he had a gun and

pointed it at the taxi driver. Additionally, the testimony that an irate defendant

threatened to put the taxi driver in the hospital, reasonably inferred violent

behavior rather than an "offensive touching or striking." Consequently, the

absence of a lesser-included harassment charge did not have a clear capacity to

bring about an unjust result.

      In sum, taken as a whole, the jury charges were appropriate.

      Affirmed.




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