                        NOT FOR PUBLICATION WITHOUT THE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-1529-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DARNELL REED a/k/a DEMETRIUS
HINES, DARRELL JENKINS, DARNELL
OXFORD, and AARON PACKERSON,

     Defendant-Appellant.
________________________________

              Argued May 30, 2017 – Decided July 6, 2017

              Before Judges Sabatino, Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 13-
              08-1920.

              Tamar Y.      Lerer, Assistant Deputy Public
              Defender,    argued the cause for appellant
              (Joseph E.   Krakora, Public Defender, attorney;
              Ms. Lerer,   of counsel and on the briefs).

              Tiffany M. Russo, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Carolyn A. Murray,
              Acting Essex County Prosecutor, attorney; Ms.
              Russo, of counsel and on the brief).

PER CURIAM
    Following a three-day jury trial, defendant Darnell Reed was

convicted of third-degree resisting arrest by physical force,

N.J.S.A.   2C:29-2(a)(3)(a).          The   trial     judge    imposed     a

discretionary   extended   nine-year   term   of    imprisonment   with    a

discretionary     four-and-one-half-year           period     of    parole

ineligibility, to run consecutive to a 364-day sentence defendant

was serving on an unrelated violation of probation conviction.

Defendant appeals from his conviction and sentence.

    Defendant raises the following issues on appeal:

           POINT I

           THE FAILURE TO INSTRUCT THE JURY THAT
           DEFENDANT HAD THE RIGHT TO RESIST THE
           OFFICERS' USE OF UNLAWFUL FORCE REQUIRES
           REVERSAL OF HIS CONVICTIONS. (NOT RAISED
           BELOW).

           POINT II

           BECAUSE THE JUDGE FAILED TO INSTRUCT THE JURY
           THAT A GUILTY VERDICT REQUIRED UNANIMITY AS
           TO THE VICTIM, THE DANGER OF A PATCHWORK
           VERDICT REQUIRES REVERSAL.       (NOT RAISED
           BELOW).

           POINT III

           DEFENDANT'S SENTENCE, WHICH CONSISTS OF BOTH
           A   DISCRETIONARY   EXTENDED   TERM   AND  A
           DSICRETIONARY    PAROLE   DISQUALIFIER,   IS
           MANIFESTLY EXCESSIVE.

           POINT IV

           DEFENDANT IS ENTITLED TO 115 DAYS OF GAP-TIME
           CREDIT.

                                  2                                A-1529-15T2
           REPLY POINT I
           THE FAILURE TO INSTRUCT THE JURY ON SELF-
           DEFENSE WAS PLAIN ERROR, CLEARLY CAPABLE OF
           PRODUCING AN UNJUST RESULT.

           REPLY POINT II

           THE FAILURE TO SPECIFY THE VICTIM OF THE
           ALLEGED RESISITING RESULTED IN THE RISK OF A
           NON-UNANIMOUS VERDICT.

    We derive the following facts from the evidence presented at

trial.    On April 1, 2013, at approximately 11:30 a.m., Officers

Louis Weber and Manuel Souto of the Newark Police Department were

patrolling the area of North Munn Avenue in Newark in an unmarked

police car.     Both officers were dressed in plainclothes. As their

unmarked vehicle approached the intersection of North Munn and

Mountainside Avenues, they observed a car in front of the Bradley

Court Housing Complex, with one occupant, later identified as

defendant, in the driver's seat.         They observed a "black male"

leaning into the driver's side window.

    As    the    officers    attempted   to    investigate   further,    an

unidentified person yelled a code word to warn that police were

in the area.     After the warning, the individual by the driver's

side window walked away, and the defendant drove off with the

officers following in their unmarked car.           Despite defendant's

vehicle   having    tinted   windows,    the   officers   testified     that

defendant was not wearing a seatbelt.

                                    3                             A-1529-15T2
        According to the officers, defendant was driving erratically.

    After following defendant to the intersection of Maybaum and

    Tremont Avenues, the officers activated their lights and siren,

    at which point defendant pulled over.

        Officer Weber approached the passenger side of defendant's

    vehicle,   while   Officer   Souto       approached   the   driver's     side.

    According to Officer Weber, defendant was holding a "brick of

    heroin" in his hands.1       After being alerted to this by Officer

    Weber, Officer Souto asked defendant to step out of the vehicle

    because he was under arrest for possession of drugs.             According

    to the officers, defendant stepped out of his car holding the

    brick of heroin, then dropped it and attempted to flee.

        An Essex County grand jury returned an indictment charging

defendant with third-degree possession of heroin, N.J.S.A. 2C:35-

10a(1) (count one); third-degree possession of heroin with intent

to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two);

third-degree possession of heroin with intent to distribute within

1,000 feet of school property, N.J.S.A. 2C:35-7(a) and 2C:35-

5(a)(1) (count three); third-degree possession of heroin with

intent to distribute within 500 feet of a public housing facility,



1
  Officer Weber testified that a brick of heroin is "fifty smaller
envelopes of heroin wrapped in a bundle, then wrapped in newspaper
for distribution."

                                         4                                 A-1529-15T2
N.J.S.A. 2C:35-7.1(a) and 2C:35-5(a)(1) (count four); two counts

of fourth-degree aggravated assault on a law enforcement officer,

N.J.S.A. 2C:12-1(b)(5)(a) (counts five and six); second-degree

attempt to disarm a law enforcement officer, N.J.S.A. 2C:12-11(a)

(count seven); and third-degree resisting arrest by use of physical

force, N.J.S.A. 2C:29-2(a)(3)(a) (Count Eight).

     Tried to a jury, defendant was convicted of third-degree

resisting arrest, but found not guilty of the remaining seven

charges.   In charging the jury, the trial judge did not provide a

self-defense instruction.   Defendant did not object to the jury

charges.

     On December 1, 2014, defendant appeared for sentencing. After

granting the State's motion for a discretionary extended term and

a discretionary period of parole ineligibility, the trial judge

imposed a nine-year term of imprisonment subject to a four-and-

one-half-year period of parole ineligibility.     The sentence was

made consecutive to a 364-day sentence defendant was serving on

an unrelated violation of probation conviction.       Although the

trial judge awarded defendant twelve days credit for time served,

he did not award defendant any gap-time credit.

                                I.

     Defendant contends that the trial court's failure to instruct

the jury that defendant had the right to resist the officers' use

                                 5                          A-1529-15T2
of unlawful force constituted plain error, clearly capable of

producing an unjust result.

     "An essential ingredient of a fair trial is that a jury

receive    adequate    and   understandable   instructions."        State   v.

McKinney, 223 N.J. 475, 495 (2015) (quoting State v. Afanador, 151

N.J. 41, 54 (1997)).         "At the heart of the guarantee of a fair

trial is the 'jury's impartial deliberations upon the guilt of a

criminal defendant based solely upon the evidence in accordance

with proper and adequate instructions . . . .'"            State v. Collier,

90 N.J. 117, 122 (1982) (quoting State v. Simon, 79 N.J. 191, 206

(1979)).

            The trial court must give "a comprehensible
            explanation of the questions that the jury
            must determine, including the law of the case
            applicable to the facts that the jury may
            find." Thus, the 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,
            irrespective of the particular language
            suggested by either party."

            [State v. Baum, 224       N.J.    147,   159   (2016)
            (citations omitted).]

     "Jury instructions have been described as a 'road map to

guide the jury[;] without an appropriate charge, a jury can take

a wrong turn in its deliberations.'"          McKinney, supra, 223 N.J.

at 495 (alteration in original) (quoting State v. Martin, 119 N.J.

2, 15 (1990)).        "Because proper jury instructions are essential

                                     6                               A-1529-15T2
to a fair trial, erroneous instructions on material points are

presumed     to    possess      the   capacity    to    unfairly      prejudice      the

defendant."       Ibid.    (citations omitted); see also State v. Jordan,

147 N.J. 409, 422 (1997) (finding that some jury instructions are

"so crucial to the jury's deliberations on the guilt of a criminal

defendant that errors in those instructions are presumed to be

reversible").           "Therefore, '[e]rroneous instructions are poor

candidates for rehabilitation as harmless, and are ordinarily

presumed to be reversible error.'"               McKinney, supra, 223 N.J. at

495-96 (alteration in original) (quoting Afanador, supra, 151 N.J.

at   54);    see    also    Baum,     supra,   224     N.J.     at   159    (erroneous

instructions       on    material     points   are     presumed      to    possess   the

capacity to unfairly prejudice the defendant).                       The plain error

analysis of an erroneous jury charge mandates that the reviewing

court examine the charge as a whole to determine its overall

effect.      McKinney, supra, 223 N.J. at 494.

      Defendant did not object to the jury charges at trial and

raised      the    claim   of    error   for     the    first     time     on   appeal.

"Consequently, we must consider this issue under the plain error

rule."      State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-

2); see also State v. Burns, 192 N.J. 312, 341 (2007). Our Supreme

Court has established that



                                          7                                     A-1529-15T2
            [i]n the context of jury instructions, plain
            error is "[l]egal impropriety in the charge
            prejudicially   affecting    the   substantial
            rights of the defendant and sufficiently
            grievous to justify notice by the reviewing
            court and to convince the court that of itself
            the error possessed a clear capacity to bring
            about an unjust result."

            [State v. Camacho, 218 N.J. 533, 554 (2014)
            (quoting State v. Adams, 194 N.J. 186, 207
            (2008)).]

     "Therefore, we may reverse only if the unchallenged error was

'clearly capable of producing an unjust result.'"        Ibid. (quoting

R. 2:10-2).    "We consider alleged error in light of 'the totality

of the entire charge, not in isolation.'"        Burns, supra, 192 N.J.

at 341 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

"Nevertheless, because clear and correct jury instructions are

fundamental to a fair trial, erroneous instructions in a criminal

case are 'poor candidates for rehabilitation under the plain error

theory.'"     Adams, supra, 194 N.J. at 207 (quoting Jordan, supra,

147 N.J. at 422).

     "The     standard   for   assessing   the   soundness   of   a   jury

instruction is 'how and in what sense, under the evidence before

them, and the circumstances of the trial, would ordinary . . .

jurors understand the instructions as a whole.'"       State v. Savage,

172 N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super.

565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997)).


                                    8                             A-1529-15T2
"[T]he test to be applied . . . is whether the charge as a whole

is misleading, or sets forth accurately and fairly the controlling

principles of law."      McKinney, supra, 223 N.J. at 496 (quoting

State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)

(alteration in original), certif. denied, 153 N.J. 49 (1998)).

     The resisting arrest jury instruction stated in part:

          Count Eight of the indictment charges the
          defendant with the crime of resisting arrest
          by using or threatening to use force or
          physical violence against Officer Souto and/or
          Officer Weber.

          The Statute on which this charge is based
          reads as follows: A person is guilty of an
          offense if he purposely prevents or attempts
          to prevent a law enforcement officer from
          effecting an arrest, uses or threatens to use
          physical force or violence against the law
          enforcement officer or another.

          In order to convict the defendant of this
          charge, the State first must prove beyond a
          reasonable doubt that defendant committed the
          basic offense of resisting arrest.

               . . . .

          The second element that State must prove
          beyond a reasonable doubt is that Officer
          Souto and Officer Weber were effecting an
          arrest. It is not a defense to a prosecution
          under this subsection that the law enforcement
          officer was acting unlawfully in making the
          arrest, provided he was acting under color of
          his official authority and provided the law
          enforcement officer announces his intention to
          arrest prior to the resistance.

               . . . .

                                  9                          A-1529-15T2
          If you find the State has proven beyond a
          reasonable doubt all five elements of the
          offense: (1), that Officer Souto and/or
          Officer Weber were law enforcement officers;
          (2), Officer Souto and/or Officer Weber were
          effecting an arrest; (3), that defendant knew
          or had reason to know that Officer Souto
          and/or Officer Weber were law enforcement
          officers effecting an arrest; (4) that
          defendant purposely prevented or attempted to
          prevent Officer Souto and/or Officer Weber
          from effecting the arrest; (5) that the
          defendant used or threatened to use physical
          force or violence against a law enforcement
          officer or another, then you must find the
          defendant guilty of resisting arrest.

     Defendant contends the trial court committed plain error by

failing to instruct the jury that a defendant can lawfully defend

himself against an officer's use of unlawful force when effecting

an arrest.   More specifically, defendant argues that the trial

court should have given Model Charge (Criminal), "Justification -

Self-Defense, Resisting Arrest (N.J.S.A. 2C:3-4)," (October 17,

1988) as part of its resisting arrest instructions.       Defendant

contends that the failure to charge self-defense violated his

rights to due process and a fair trial as guaranteed to him by the

Fourteenth Amendment, U.S. Const. amends. VI, XIV, and the N.J.

Const. art. I, ¶ ¶ 1, 9, 10.   We agree.

     A law enforcement officer may use force when making an arrest

if he or she "reasonably believes that such force is immediately

necessary to effect a lawful arrest."      N.J.S.A. 2C:3-7(a).   "If

                               10                           A-1529-15T2
the citizen resists the arrest, the officer is not only justified

in but has the duty of employing such force as is reasonably

necessary to overcome the resistance and accomplish the arrest."

State v. Mulvihill, 57 N.J. 151, 156 (1970).      "Accordingly, in our

State, when an officer makes an arrest, legal or illegal, it is

the duty of the citizen to submit and, in the event the seizure

is illegal, to seek recourse in the courts for the invasion of his

right    of   freedom."   Id.   at   155-56.   However,   our   law   also

authorizes a civilian's use of force in self-protection while

being placed under arrest in certain limited circumstances.           "If,

in effectuating the arrest or the temporary detention, the officer

employs excessive and unnecessary force, the citizen may respond

or counter with the use of reasonable force to protect himself,

and if in doing so the officer is injured no criminal offense has

been committed."      Id. at 156; see also N.J.S.A. 2C:3-4(b)(1)(a)

(although a person may not use force to resist arrest simply

because the arrest is unlawful, he or she may use force if the

officer employs unlawful force to effect such arrest). The citizen

cannot use greater force in protecting himself from the officer's

unlawful force than appears necessary under the circumstances, and

he loses his privilege of self-defense if he knows that if he

submits to the officer, the officer's excessive use of force will

cease.    Mulvihill, supra, 57 N.J. at 157.      The rule is designed

                                     11                          A-1529-15T2
to protect a person's bodily integrity and health as "the law

recognizes that liberty can be restored through legal processes

but life or limb cannot be repaired in a courtroom."          Id. at 156.

      A self-defense charge is required when "any evidence raising

the issue of self-defense is adduced, either in the State's or the

defendant's case."     State v. Kelly, 97 N.J. 178, 200 (1984).           If

such evidence is present, "then the jury must be instructed that

the State is required to prove beyond a reasonable doubt that the

self-defense claim does not accord with the facts; [and] acquittal

is required if there remains a reasonable doubt whether the

defendant acted in self-defense."        Ibid; see also State v. Gentry,

439 N.J. Super. 57, 63 (App. Div. 2015) (holding that a self-

defense instruction is required, even when not requested, where

the evidence indicates a rational basis for instructing it).

     "[B]ecause self-defense must be charged if the evidence,

viewed   most   favorably   to   the    defendant,   would   support   that

justification, we focus on 'the evidence that provides a rational

basis for a self-defense charge.'"        Gentry, supra, 439 N.J. Super.

at 63 (quoting State v. Rodriguez, 195 N.J. 165, 170 (2008)).

     Here, defendant was repeatedly struck in the rib area and was

thrown to the ground.       He suffered a bloodied and swollen face.

Photographs depicted defendant's blood on the pavement at the

scene of the arrest.    More than ten of defendant's dreadlocks were

                                   12                              A-1529-15T2
forcibly ripped from his scalp.                He required treatment at a

hospital for his injuries.       Defendant still suffers from a "knot"

in his ribcage.

     Viewed     most   favorably    to      the    defendant,      the     evidence

supported   a   finding   that     the     officers    used   unnecessary        and

excessive force against defendant, thereby providing a rational

basis for a self-defense charge. Therefore, the trial court should

have given the jury a self-defense charge as part of its resisting

arrest instructions. Kelly, supra, 97 N.J. at 200; State v. Simms,

369 N.J. Super. 466, 472-73 (App. Div. 2004).                   The failure to

instruct the jury that legitimate self-defense is a justification

for resisting arrest where the facts reasonably could support that

defense constitutes plain error.            Simms, supra, 369 N.J. Super.

at 473.

     In   Simms,   the    defendant      was      convicted   of    third-degree

resisting arrest, although being acquitted of the companion third-

degree charge of assaulting an officer.               Id. at 468.        During the

trial, the defendant testified that after he had submitted to the

arrest, "[the officer] had slammed his body into the wall and was

trying to slam his head into the wall."             Id. at 473.     We concluded

that the "jury could have found . . . that [the officer] was using

unreasonable and excessive force in attempting an arrest and that

defendant reasonably feared for his physical safety, justifying

                                      13                                    A-1529-15T2
him in using such force as was reasonably necessary . . . to

[break-away]."    Ibid.    Therefore, the defendant was entitled to a

self-defense charge and its omission from the jury instructions

was plain error.       Ibid.

       Here, the jury was instructed that a person is not entitled

to resist even an unlawful arrest, but was not instructed that

when    an   officer    uses   excessive   and   unnecessary   force    in

effectuating an arrest, a citizen may respond or counter with the

use of reasonable force to protect himself. The jury instructions,

however, did not address self-defense.           Absent an appropriate

self-defense instruction, the jury was effectively prevented from

considering whether the officers employed unlawful force, and

whether defendant reasonably believed it was necessary to use

force to protect himself.

       We further note that the jury acquitted defendant of seven

of the eight charges, including simple possession of heroin,

aggravated assault of a law enforcement officer, and attempting

to disarm a law enforcement officer.        It is likely that the jury

found aspects of the testimony of the State's witnesses to be less

than credible.     Given these circumstances, the evidence of guilt

can hardly be characterized as overwhelming.       Cf. State v. Sowell,

213 N.J. 89, 107 (2013); State v. Marrero, 148 N.J. 469, 497

(1997).

                                    14                           A-1529-15T2
      By   failing      to   include    a        self-defense   charge,    the   jury

instructions possessed a clear capacity to bring about an unjust

result, constituting plain error.                    R. 2:10-2.     Therefore, we

reverse defendant's conviction for resisting arrest, and remand

the case for a new trial.              During the retrial, the jury shall

receive an appropriate self-defense instruction.                  In holding that

the evidence was at least sufficient to require submission of the

issue of self-defense to the jury, we express no view as to whether

defendant's version of the facts should be accepted.

      In light of our ruling, we need not reach defendant's argument

that his extended sentence was manifestly excessive.

                                            II.

      We also need not reach defendant's argument that the repeated

use   of   the   term    "and/or"      in    the     jury   instructions   injected

ambiguity into the jury's consideration of the proofs.                     Instead,

we offer the following guidance to the trial court on remand.

      The resisting arrest charge given by the trial judge included

the phrase "Officer Souto and/or Officer Weber" nine times.                         By

way of example, the jury charge stated:

            The four elements of that offense are: (1),
            that Officer Souto and/or Officer Weber were
            law enforcement officers; (2), that Officer
            Souto and/or Officer Weber were effecting an
            arrest; (3), that defendant knew or had reason
            to know that Officer Souto and/or Officer
            Weber were law enforcement officers effecting

                                            15                               A-1529-15T2
          an arrest; (4), that defendant purposely
          prevented or attempted to prevent Officer
          Souto and/or Officer Weber from effecting the
          arrest.

               . . . .

          The fourth element that the State must prove
          beyond a reasonable doubt is that defendant
          purposely prevented or attempted to prevent
          Officer Souto and/or Officer Weber from
          effecting the arrest.

          [(emphasis added).]

     The verdict sheet did not require the jury to determine the

identity of the officer against whom defendant resisted.

     As a result, the jury instructions and the verdict sheet

allowed the jury to find defendant guilty of resisting arrest

without agreeing on the identity of the officer subjected to the

alleged resistance.    Defendant contends that this allowed for a

non-unanimous verdict.

     In a criminal prosecution, the State must prove each element

of the offense beyond a reasonable doubt.     State v. Medina, 147

N.J. 43, 49 (1996) (citing In re Winship, 397 U.S. 358, 364, 90

S.Ct. 1068, 1072-73, 25 L.Ed. 2d 368, 375 (1970)), cert. denied,

520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997).      "[T]he

possibility that defendant may have been sentenced based on a

less-than-unanimous verdict . . . seriously implicates defendant's

substantive rights."     State v. Shomo, 129 N.J. 248, 260 (1992).


                                 16                        A-1529-15T2
The unanimity rule mandates unanimous agreement on each element

of the offense. State v. Gentry, 183 N.J. 30 (2005). Accordingly,

the jury must unanimously agree "on which acts were committed

against which victim."   Id. at 33.   Here, the jurors must agree

unanimously which officer was the victim of resisting arrest.

     Recently, in State v. Gonzalez, 444 N.J. Super. 62, 75-76

(App. Div.), certif. denied, 226 N.J. 209 (2016), we overturned a

conviction because of the improper use of the inherently confusing

phrase "and/or" in a jury instruction, which injected ambiguity

into the charge in the discrete factual context of that case.

     Here, Officers Weber and Souto attempted to place defendant

under arrest.   The indictment does not identify the officer(s)

that defendant resisted by the use of physical force.      It is,

therefore, possible that some jurors thought that defendant was

resisting Officer Weber and not Officer Souto, while other jurors

thought defendant was resisting Officer Souto but not Officer

Weber.   If that occurred, defendant is theoretically correct that

such a "patchwork verdict" would not satisfy the constitutional

requirement of a unanimous finding of guilt.   See ibid.

     While the facts here suggest that defendant's conduct was

likely directed at both arresting officers, on remand the trial

court should consider avoiding the use of the term "and/or" in the

jury instructions.   The court further should consider identifying

                                17                         A-1529-15T2
each alleged victim in the verdict sheet. Doing so would eliminate

possible confusion and the potential for a non-unanimous verdict.

                              III.

     Relying on our decision in State v. Ogletree, 435 N.J. Super.

11 (App. Div.), certif. denied, 220 N.J. 40 (2014), defendant

argues that he is entitled to 115 days of gap-time credit for the

time after the imposition of the 364-day sentence for violation

of probation until the sentencing in this case.

     Pursuant to N.J.S.A. 2C:44-5(b), a defendant who is given two

separate sentences on two different dates is awarded gap-time

credit toward the second sentence for the time spent in custody

since he or she began serving the first sentence.         State v.

Hernandez, 208 N.J. 24, 38 (2011).      The State concedes that

defendant is entitled to 115 days of gap-time credit.   Therefore,

defendant shall receive 115 days of gap-time credit if he is

convicted again on the retrial.

     Reversed and remanded for a new trial.       We do not retain

jurisdiction.




                               18                          A-1529-15T2
