                                  RECORD IMPOUNDED

                              NOT FOR PUBLICATION WITHOUT THE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-0215-15T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

QUASHAWN K. JONES,

         Defendant-Appellant.

____________________________

                 Submitted January 11, 2018 – Decided September 10, 2018

                 Before Judges Haas, Rothstadt and Gooden Brown.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Atlantic County, Indictment No. 14-11-3279.

                 Joseph E. Krakora, Public Defender, attorney for
                 appellant (Rochelle Watson, Assistant Deputy Public
                 Defender, of counsel and on the briefs).

                 Damon G. Tyner, Atlantic County Prosecutor, attorney
                 for respondent (Melinda A. Harrigan, Assistant
                 Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a five-day jury trial, defendant Quashawn Jones was convicted of

two counts of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and/or

(2) (counts one and nine);1 second-degree aggravated assault, N.J.S.A. 2C:12-

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

three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (count five); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count six); third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count

seven); 2 and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7

(count ten).3 Defendant was sentenced to an aggregate term of sixty-five years'

imprisonment, fifty of which were subject to the eighty-five percent parole

ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.




1
  For trial purposes, counts five through ten of the indictment were renumbered
as counts four through nine after count four was dismissed pre-trial on the State's
motion. Before the case was submitted to the jury, the trial judge granted
defendant's motion for a judgment of acquittal, R. 3:18-1, on count eight
renumbered as count seven, charging first-degree witness tampering, N.J.S.A.
2C:28-5(a), and renumbered count nine, charging attempted murder, as count
seven.
2
   Defendant was indicted for first-degree witness tampering, but the jury
convicted him of the lesser-included offense of third-degree witness tampering.
3
  Following the jury trial, the trial judge found defendant guilty of the certain
persons charge in a bifurcated bench trial.
                                                                           A-0215-15T2
                                        2
      The convictions stemmed from defendant shooting the victim, A.A., three

times, in an attempt to kill her. Defendant shot A.A. because he feared that A.A.

and her two female friends who witnessed the events leading up to the shootings

were setting him up to be robbed or killed. Of the three women, only A.A. testified

at trial. In addition, recorded phone conversations were played for the jury, during

which defendant discussed, among other things, killing A.A. to prevent her from

testifying, the State's evidence against him, and his defenses. Although A.A. was

the named victim in both attempted murder charges, count one pertained to the

shootings while count nine was predicated upon defendant's comments in those

phone conversations.

Defendant now appeals from his convictions and sentence, raising the following

arguments for our consideration:

            POINT I

            PHONE CALLS IN WHICH DEFENDANT
            DISCUSSED THE STATE'S EVIDENCE AGAINST
            HIM,   POSSIBLE    DEFENSES,  AND  THE
            APPLICABLE SENTENCING RANGES SHOULD
            HAVE BEEN EXCLUDED UNDER N.J.R.E. 403.
            COMPOUNDING THE PREJUDICE OF THIS
            ERROR, THE PROSECUTOR ARGUED THAT
            DEFENDANT WAS "HEDGING HIS BETS" WITH
            THE TWO AFFIRMATIVE DEFENSES PRESENTED
            AT TRIAL. (NOT RAISED BELOW).



                                                                            A-0215-15T2
                                         3
             POINT II

             RELYING SOLELY ON PHONE CALLS IN WHICH
             DEFENDANT EXPRESSED A STRONG DESIRE
             FOR THE VICTIM'S DEATH, THE STATE FAILED
             TO ESTABLISH THAT DEFENDANT TOOK A
             SUBSTANTIAL STEP TO FURTHER HIS ALLEGED
             CRIMINAL PURPOSE.       THEREFORE, THE
             EVIDENCE IS INSUFFICIENT TO SUSTAIN THE
             SECOND ATTEMPTED MURDER CONVICTION.

             POINT III

             A   REMAND     FOR     RESENTENCING   IS
             WARRANTED BECAUSE IN IMPOSING AN
             AGGREGATE TERM OF SIXTY-FIVE YEARS'
             IMPRISONMENT,      THE    TRIAL   COURT
             EMPHASIZED THE NEED TO SEND A MESSAGE
             TO THE ATLANTIC CITY COMMUNITY AND
             IMPUGNED DEFENDANT FOR INVESTIGATING
             AN INSANITY DEFENSE AND REJECTING THE
             STATE'S PLEA DEAL.

      After considering the arguments presented in light of the record and applicable

law, we reject defendant's argument in Point I, but agree with defendant's argument

in Point II that the trial court should have granted his motion for a judgment of

acquittal on the second attempted murder charge because the State failed to establish

a substantial step. Accordingly, we affirm in part, reverse count nine only, and

remand for re-sentencing based upon our reversal.




                                                                             A-0215-15T2
                                         4
                                          I.

      We recite the facts pertinent to the issues raised on appeal gleaned from the

trial record. During the early morning hours of November 18, 2013, A.A. and her

two friends, M.C. and U.J., were "hanging out" with defendant, whom A.A. had

known since childhood, at M.C.'s apartment on North South Carolina Avenue in

Atlantic City. A.A. observed defendant "[p]acing back and forth," in the kitchen and

"checking out the window" while U.J., who was also in the kitchen, "[l]ook[ed] out

the window." According to A.A., defendant was sweating profusely, appeared angry

and agitated, and asked U.J. why she was looking out the window, but her response

that she was waiting for her boyfriend to arrive did not seem to appease him. Shortly

thereafter, defendant accused the women of "lining him up"4 and told M.C. that "he

was going to kill her friend[,]" referring to A.A.

      When defendant pulled a gun out of his waistband, A.A. knew that he was

serious and fled to the bathroom, intending to escape through the bathroom window.

However, she decided instead to try to assuage defendant's fears by showing him her

phone to prove that she had not contacted anyone to "set something up." After A.A.

came out of the bathroom to show defendant her phone, a struggle ensued during



4
   A.A. explained that "lining him up" meant that the women were setting
defendant up to be robbed or killed.
                                                                             A-0215-15T2
                                          5
which defendant grabbed A.A. While they "fumbl[ed] around the kitchen," M.C.

tried to restrain defendant but the altercation escalated and all three ended up on the

floor. As the struggle continued, U.J. ran out of the apartment and M.C. managed

to flee from the kitchen, leaving A.A. alone on the floor fighting defendant.

      During the fight, A.A. heard a gunshot but was unsure at the time whether the

gun discharged on its own or defendant shot her. After defendant was able to

extricate himself from A.A., he placed his foot on her chest and shot her in the neck.

While A.A. pretended to be dead, she observed defendant open the kitchen window,

fire a shot out the window and yell, "[H]elp, I'm hit, I'm hit." At that point, M.C.

yelled out to defendant that if he put the gun down, she would return to the kitchen.

Defendant responded, "[If you come in the kitchen, I'm going to kill this bitch."

Defendant then shot A.A. a second time in the neck, fired a shot out the kitchen

window a second time, and shot A.A. one more time before he "jumped out of [the

kitchen] window" of M.C.'s second floor apartment.

      Thereafter, A.A. managed to go to the apartment across from M.C.'s to

summon help, and was transported by ambulance to the hospital where she

underwent emergency surgery for life threatening injuries. A.A. suffered "multiple

gunshot wounds about the face and the neck, . . . the right arm and the right [axillary]

armpit region." She "had acute blood loss anemia," a collapsed right lung, a


                                                                                A-0215-15T2
                                           6
fractured clavicle and humerus, and "multiple . . . abrasions and lacerations around

the chin on both sides." She was intubated to prevent her airway from collapsing.

       Meanwhile, at approximately 6:27 a.m. the same morning, M.C. approached

Atlantic City Police Officer Sumon Majunder, who was responding to the scene of

the shooting, and told him that "she believed" her girlfriend was shot in her

apartment by "a male [by the] name of Shawn a/k/a Neff"5 after "they got into an

argument." According to Majunder, M.C. was "crying," "very nervous," "excited"

and "talking . . . fast." At approximately 6:23 a.m., Atlantic City Police Officer

Richard Johnson was also responding to the scene when he encountered a man

"trying to flag down a car" on Route 30, about a block away from the shooting.

When Johnson "hollered to him . . . [to] get out of the street," the man, who was later

identified as defendant, responded, "[T]hey're trying to kill me."

       After giving Johnson a false name, defendant explained that while walking

with a woman on South Carolina Avenue, "[a] green van pull[ed] up," and "a guy

jump[ed] out of the van and start[ed] shooting at him." Defendant told Johnson he

did not know where the woman, whom he identified by A.A.'s nickname, went but

he (defendant) "ran here" where he encountered Johnson. Defendant had blood on



5
    Defendant was known by the names "Nef" and "Shawny."


                                                                               A-0215-15T2
                                          7
his mouth, but no other visible injuries. At defendant's request, he was taken to the

hospital by ambulance for treatment.

      As a result of the investigation into A.A.'s shooting, defendant was later

arrested. Police recovered three shell casings inside M.C.'s apartment 6 and one

outside below the kitchen window adjacent to a bootprint. All four shell casings

were .40 caliber and all were fired from the same gun. Police also recovered a

magazine from a Smith and Wesson semiautomatic .40 caliber handgun in the gutter

along Route 30. However, no weapon was ever recovered.

      At trial, A.A. recounted various contacts with defendant and his

representatives after the shooting. A.A. testified that in September 2014, while she

was speaking on the telephone to a friend she was visiting at the Atlantic County

Justice Facility, defendant "took the phone" and "told [her] that [she] was the only

way that he could get out of jail," and she "needed to make this go away." Defendant

told A.A. "that if there was anything that he [could] do as far as money, minutes or




6
     Inside M.C.'s apartment, police also found marijuana packaged for
distribution, oxycodone pills and drug paraphernalia. Although A.A. testified
that she had stayed at M.C.'s apartment for three days prior to the shooting and
observed a number of people making short visits to the apartment, she denied
any knowledge of M.C.'s drug dealing activities.


                                                                             A-0215-15T2
                                         8
whatever, . . . he would do it for [her]." Following this conversation, A.A. contacted

the Prosecutor's Office and relayed the details of defendant's offer.

       A.A. further testified that a man approached her on the street and told her that

defendant "needed [her] to take [her] statement back because he needed to get home

to finish [her] off and to handle [her] brother." In addition, a woman told her "not

to come to court." On September 10, 2014, A.A. received a phone call from an

unfamiliar phone number. While on the call, A.A. heard defendant's voice and ended

the call. Shortly thereafter, A.A. received text messages from the same phone

number stating: "that was Nef. He just didn't want to say it over the phone" and "Nef

just wanted to talk to you." After receiving these messages, A.A. again contacted

the Prosecutor's Office. At the request of Atlantic County Prosecutor's Office

Detective Caroline MacDonald, A.A. engaged in a consensual phone conversation

with defendant at M.C.'s apartment, which was recorded by MacDonald and played

in its entirety at trial.

       In the conversation, defendant explained that he had no intent to harm A.A.

and asserted that he had alerted police to her injuries. Defendant also explained the

reason for his suspicion of the women that morning7 and detailed the discovery he


7
  Defendant explained that he had been the intended victim of a shooting at
M.C.'s apartment building a couple days earlier.

                                                                               A-0215-15T2
                                           9
received from the State, as well as his desire to help A.A. with "whatever [she]

need[ed]." Defendant also disputed A.A.'s statement that the gun went off while the

two were fighting on the kitchen floor and alleged that it went off during the initial

"tussle." Defendant stated, "You know you came in, you did what you did, I got

turned around and I grabbed you, the joint[8] was already out. Somebody grabbed

me and . . . [t]hat thing went off."

        At trial, the State also introduced excerpts from other phone conversations

recorded while defendant was confined at the Atlantic County Justice Facility from

February 8 to April 28, 2014, involving numbers associated with defendant. In these

conversations, defendant discussed with his girlfriend and his cousin: (1) the events

of November 18, 2013; (2) the State's discovery; (3) possible defenses; (4) whether

to post bail; (5) inconsistent witness statements; (6) witness recantations; and (6)

defendant's frustration that certain persons were "still walkin [sic] around."

        At the close of the State's case, the court granted defendant's motion for a

judgment of acquittal on count eight, charging witness tampering of M.C.,9 but



8
    According to A.A., "joint" referred to the gun.
9
   The court conducted hearings outside the presence of the jury to ascertain
M.C.'s availability to testify. Ultimately, M.C. invoked her Fifth Amendment
right and did not testify at the trial.


                                                                                 A-0215-15T2
                                         10
denied defendant's motion for a judgment of acquittal on count nine, the second

attempted murder charge. Following the verdict, on July 31, 2015, the court denied

defendant's motion for a judgment notwithstanding the verdict on count nine, R.

3:18-2, and denied defendant's motion for a new trial. R. 3:20-1. On the same date,

the court granted the State's motion for a discretionary extended term sentence,

pursuant to N.J.S.A. 2C:44-3, and, after mergers, sentenced defendant to an extended

term of thirty-five years' imprisonment, subject to NERA, on count one, the first

attempted murder charge. On count seven, the witness tampering charge, the court

sentenced defendant to five years imprisonment, consecutive to count one. On count

nine, the second attempted murder charge, the court sentenced defendant to fifteen

years imprisonment, subject to NERA, consecutive to count seven. On count ten,

the certain person charge, the court sentenced defendant to ten years imprisonment,

with a five-year period of parole ineligibility, consecutive to count nine.10    This

appeal followed.

                                          II.

        In Point I, defendant argues that the court erred in admitting the telephone

conversations recorded at the Atlantic County Justice Facility. Defendant asserts

that the calls "were not relevant under N.J.R.E. 401, to prove or disprove any fact of


10
     The remaining counts were merged into count one.
                                                                                A-0215-15T2
                                         11
consequence" and "were unduly prejudicial under N.J.R.E. 403." Defendant asserts

"[t]he inflammatory nature of the phone calls would lead a juror to believe that

defendant was manipulating the legal system and trying to evade responsibility by

trying out various spurious defenses" and "hindered the jury's ability to judge

impartially    [defendant's]    self-defense    and    attempted     passion/provocation

manslaughter defenses."

        Because defendant's contentions in Point I are raised for the first time on

appeal, we review them under the plain error standard. R. 2:10-2. Plain error is an

"error possessing a clear capacity to bring about an unjust result and which

substantially prejudiced the defendant's fundamental right to have the jury fairly

evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 576-77

(1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)). A reversal based on plain

error requires us to find that the error likely led to an unjust result that is "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. Williams, 168 N.J. 323, 336 (2001) (quoting State

v. Macon, 57 N.J. 325, 336 (1971)). Applying that standard, we find no plain error

here.

        N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in

reason to prove or disprove any fact of consequence to the determination of the


                                                                                  A-0215-15T2
                                           12
action." "Courts consider evidence to be probative when it has a tendency 'to

establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127

(2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)). The

evidence must be probative of a fact that is "really in issue in the case," as determined

by reference to the applicable substantive law. State v. Buckley, 216 N.J. 249, 261

(2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)).

      Under N.J.R.E. 401, "[e]vidence need not be dispositive or even strongly

probative in order to clear the relevancy bar." Buckley, 216 N.J. at 261. Moreover,

"[t]he proponent need not demonstrate that the evidence can, in and of itself,

establish or disprove a fact of consequence in order to meet the benchmark of

N.J.R.E. 401." State v. Cole, 229 N.J. 430, 448 (2017). "Once a logical relevancy

can be found to bridge the evidence offered and a consequential issue in the case,

the evidence is admissible, unless exclusion is warranted under a specific evidence

rule." Burr, 195 N.J. at 127; see N.J.R.E. 402.

      One such exclusionary rule is N.J.R.E. 403. N.J.R.E 403 mandates the

exclusion of evidence that is otherwise admissible "if its probative value is

substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or

misleading the jury or (b) undue delay, waste of time, or needless presentation of




                                                                                A-0215-15T2
                                          13
cumulative evidence." Here, defendant relies on the "undue prejudice" factor in

N.J.R.E. 403.

      The inquiry under that provision "is whether the probative value of the

evidence 'is so significantly outweighed by [its] inherently inflammatory potential

as to have a probable capacity to divert the minds of the jurors from a reasonable

and fair evaluation of the' issues." Cole, 229 N.J. at 448 (alteration in original)

(quoting State v. Thompson, 59 N.J. 396, 421 (1971)). "It is not enough for the

opposing party to show that the evidence could be prejudicial; '[d]amaging evidence

usually is very prejudicial but the question here is whether the risk of undue

prejudice was too high.'" Ibid. (alteration in original) (emphasis omitted) (quoting

State v. Morton, 155 N.J. 383, 453-54 (1998)). Indeed, "[t]he mere possibility that

evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J.

Super. 236, 253 (App. Div. 2000).

      The first phone call with which defendant takes issue was a conversation with

his girlfriend, in which he discussed bail, a possible insanity-based defense, and

potential problems with A.A.'s anticipated trial testimony:

             [DEFENDANT]: So what do you think? So . . . what
             your tellin me is like just sit in here and wait till this
             plays out or like bail out and




                                                                               A-0215-15T2
                                         14
             [GIRLFRIEND]: Oh no I would bail out, I would not
             sit in there, I would bail out I mean hopefully, . . . you
             beat it but what if you don't?

             [DEFENDANT]: It wouldn't be no reason I wouldn't
             beat it.

             [GIRLFRIEND]: Then you gonna be stuck

             [DEFENDANT]: Nah I mean even if I was to go to trial
             . . . on this shit, . . . she still got to get up there and she
             will have to give them a reason why that shit happened
             you feel what I'm saying and if they still running off
             this.

             ....

             I was on drugs type shit that ain't, that's like pleain for
             insanity type shit they can't give me no time for that you
             feel me?

             ....

             They can't give me no time for that so I'll beat it like
             that or she got to come up with a story that would say
             you been around this [n-word] for almost a year and
             some change[,] he never did this what would make him
             do it this time you feel what I'm saying they got to paint
             that picture and she can't give no reasonable
             explanation of why I would do something like that.

      In another phone call with his girlfriend, defendant discussed his intention to

go to trial, the weaknesses in the State's proofs and possible sentences:

             [DEFENDANT]: Hell yeah I'm goin to trial, you damn
             right I'm goin to trial . . . , I'm goin to trial because at
             the end of the day . . .

                                                                               A-0215-15T2
                                          15
            [GIRLFRIEND]: Well, with attempted murder charges
            they gonna be . . . offerin you a lot from the beginning
            even if you don't go to trial right?

            [DEFENDANT]: (Inaudible) [fifteen], startin but . . .
            when I go to trial they have to find me guilty of the
            attempted murder like it has to be attempted murder or
            they gotta find me guilty of a lesser charge and that
            lesser charge would be aggravated assault the charge
            they . . . throwin out, you feel me.

            ....

            The aggravated assault . . . it'll range from five to ten
            years but the shit is a reckless aggravated assault . . . so
            that shits anywhere from three to five years, so I'll go
            to trial and I lose the most I can get is fifteen, you feel
            me but they gonna have to . . . prove all that shit, they
            need a weapon, they need everything they don't have
            none of that shit you feel me like all that shit that them
            bitches they said got conflicted stories already like . . .

In the final conversation at issue, defendant reiterated his belief that the State's

evidence against him on the attempted murder charge was weak and discussed an

attempted passion/provocation manslaughter related defense as well as his surprise

at learning that A.A. made a statement.

            [DEFENDANT]: They gotta paint a picture and the
            bitches statements was that from what I'm hearin that
            the statements was that I, I was high I, I went crazy, I
            tripped out so that attempted murder shit is not gonna
            rock out anyway, you feel me? That's like a crime in
            that ah, in the heat of passion type crime, if I was to kill
            somebody if I came in the house and caught you with

                                                                            A-0215-15T2
                                          16
             another [n-word] and killed him I'd only do five years
             behind that cause it's in the heat of passion you feel me?
             I did it on some emotional type shit so now they sayin
             I did the shit while I was high and on drugs and all this
             . . . cool keep on runnin with that keep on saying that
             shit ya'll ain't doin nothin but helpin me out and at the
             end of the day they gonna ask you well how long you
             been around this person, how long you been chillin with
             him, how long have you known him[,] bitches been
             knowin me forever never did no . . . shit like this that
             they saying I did and if they do say I did somethin like
             that before[,] they gonna ask em why did ya'll continue
             to hang around this man if he was actin like this like[,]
             it's a whole bunch of shit that's wit this case man, like
             it's just some fuck shit bitches did some fuck shit. You
             feel me, like all that bitches have a change of heart shit
             that's why I said man I didn't know that bitch made no
             statement, I knew she was went to the hospital that bitch
             didn't make no statement she went right in surgery that
             bitch was right next to me. I got my stitches they was
             stitchin her up or doin whatever they was doin to her.
             That was it.

      Defendant argues that the issue before the jury was whether he "acted in self-

defense" and "was justified in using deadly force against [A.A.] for his self-

protection" or "whether he attempted to cause her death while in the heat of passion

arising from reasonable provocation." According to defendant, his "characterization

of the State's evidence and its application to various defenses was not relevant to the

resolution of these issues." The State counters that the evidence was relevant to

establish "defendant's motive and state of mind" in connection with the witness

tampering and related attempted murder charge.          According to the State, the

                                                                               A-0215-15T2
                                         17
evidence "show[ed] why he wanted [A.A.] dead." The State also points out that the

evidence was necessary to contradict "defendant's theory at trial . . . that this was an

imperfect self-defense – attempted passion provocation."

      In support, the State highlights other call excerpts during which "defendant's

initial mindset that [A.A.] did not give a statement and was not going to testify"

changed when he discovered that A.A. "not only gave a statement to police, but also

showed up in court . . . ready to testify against him." According to the State, these

conversations demonstrated how defendant's initial confidence that he would prevail

at trial was undermined by the knowledge that his aggravated assault charge was

being upgraded to attempted murder and ultimately caused him to "question[]              .

. . why [A.A.] was not dead." Specifically, the State points to the following

exchange:

             [DEFENDANT]: [Y]a'll talk to that bail bondsman?
             Ya'll gotta bust that thing ASAP.

             [GIRLFRIEND]: I don't know what's up with her I
             haven't talked to her you still ain't talk to her?

             [DEFENDANT]: Hell no I went to court today man that
             bitch was in court like what's going on?

             [GIRLFRIEND]: Who, the girl was in court?

             [DEFENDANT]: Her and her brother.

             [GIRLFRIEND]: Her and her brother was in court?

                                                                                A-0215-15T2
                                         18
[DEFENDANT]: Man they threw my aggravated
assault shit out they indictin me on attempted murder
now.

[GIRLFRIEND]: Oh my God.

[DEFENDANT]: On everything.

....

[GIRLFRIEND]: You indicted or they gettin ready to
indict you?

[DEFENDANT]: (Inaudible) I was supposed to go back
today for the pre-indictment on the aggravated assault
to get my discovery for that but when I got in there the
lawyer . . .

[GIRLFRIEND]: So that means she's gonna testify in
court then.

[DEFENDANT]: That's what I'm sayin, that's when she
came out, that's when she came out there cause the bitch
. . . the prosecutor stood up and she said some shit to
me that when she addressed the court and she said some
shit to the court that only people in that house would
know, you feel what I'm saying?

[GIRLFRIEND]: Um hmm.

[DEFENDANT]: So I'm just like damn this is why they
not indictin me on the aggravated assault now they
indictin me on attempted murder they said cause . . . the
bitch got shot while she was on the ground, I shot her
while she was on the ground and some shit like that.
But only people that would know anything like that was
if you was in that crib, if you was on the scene of that

                                                            A-0215-15T2
                          19
               shit happenin and shit like so they didn't indict me, . . .
               they didn't even give me discovery on the case they said
               they not indictin on that, they indictin me on attempted
               murder so they sendin my shit back [to] grand jury and
               it take like 60-90 days cause the shit gotta go through
               the grand jury all over again and see how they gonna
               work the shit.

               ....

               Yo ask her why the fuck she say everybody's recantin,
               ain't nobody comin to court, tell her that bitch was in
               court today wit her fucking brother.

      Evidence may be excluded under N.J.R.E. 403 where the evidence pertains to

subordinate issues, that is, issues not addressing defendant's guilt or innocence. See

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E.

(2018). However, "[a]t criminal trials, 'courts generally admit a wider range of

evidence when the motive or intent of the accused is material.'" State v. Koskovich,

168 N.J. 448, 483 (2001) (quoting State v. Covell, 157 N.J. 554, 565 (1999)). Here,

we are satisfied that the admission of the recorded conversations does not constitute

plain error. While the evidence was undoubtedly damaging, "the danger of undue

prejudice" did not "outweigh probative value so as to divert jurors 'from a reasonable

and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122

N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App.

Div. 1988)).


                                                                              A-0215-15T2
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      Furthermore, the court correctly provided a limiting instruction for the

portions of the recordings relating to sentencing and plea bargaining, both after the

calls were played and again at the end of the case prior to jury deliberations. See

Shannon v. U.S., 512 U.S. 573, 579 (1994) (reiterating the principle that the jury

"should be admonished to 'reach its verdict without regard to what sentence might

be imposed.'"); State v. Conforti, 53 N.J. 239, 244-45 (1969) (noting that in making

its determination, "the jury should not be influenced by a consideration of what will

be the result of its verdict, nor should its attention be distracted from its chief

function").

      The court instructed the jurors to "totally disregard" any mention of plea

bargains and sentences because it was "not relevant to anything that has to do with

this case," it was "beyond [their] function . . . as the jury," and "it should not in any

way enter in[]to [their] deliberations for any purpose." The court reminded the jurors

that they were "here to determine whether the defendant [was] guilty or not guilty of

the charges and that [was] all." The court told the jurors they were "not to give any

regard to any punishment upon any conviction, if there should be a conviction[,] and

the State prove[d] any of the charges beyond a reasonable doubt." "We presume the

jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012).




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                                          21
       Defendant argues further that, despite the court's instruction to the jury to

disregard any discussions in the calls about sentencing ranges or plea bargains, the

"inadmissible phone calls laid the foundation for the prosecutor's improper argument

in summation," suggesting that "both defenses [were] farcical." According to

defendant, the prejudicial nature of the prosecutor's comments took the focus away

from the "central issue at trial," namely, "what transpired during the shooting in

[M.C.'s] apartment," and placed it on defendant's "haught[y] express[ions] . . . that

certain defenses could work in his favor based on the [S]tate's witnesses' statements."

       "Because [defendant] failed to object at trial, we review the challenged

comments for plain error." State v. Pressley, 232 N.J. 587, 593 (2018). "[W]hen

counsel does not make a timely objection at trial, it is a sign 'that defense counsel

did not believe the remarks were prejudicial . . . .'"           Id. at 593-94.      Thus,

"[d]efendant's lack of objections . . . weighs against defendant's claim that errors

were 'clear' or 'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below

that in the context of the trial the error was actually of no moment.'" State v. Nelson,

173 N.J. 417, 471 (2002) (alterations in original) (quoting Macon, 57 N.J. at 333).

Here, we are convinced that defendant has not shown that any error was "'clearly

and unmistakably improper' and 'so egregious' that it deprived [him] of the 'right to




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                                           22
have a jury fairly evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-94

(quoting State v. Wakefield, 190 N.J. 397, 437-38 (2007)).

      Defendant asserts the following comment during the prosecutor's summation

was improper:

             And I was sitting here and I hear about self-defense,
             suggesting that this is self-defense. In what world is
             what happened to [A.A.] self-defense? An honest
             belief he needed to protect himself when shooting her
             three times, was it the first shot when she was lying on
             the ground that he was acting in self-defense, was it the
             second shot when she was lying on the ground that he
             acted in self-defense, or was it that third shot when he
             fired at [A.A.] that he was acting in self-defense,
             hedging his bet because it's so obvious he's the shooter,
             hey, this honest but unreasonable belief that I could
             shoot her. How could you say there's an honest belief
             to shoot somebody on the floor? Passion/provocation,
             another hedging of the bet because it's so clear that he's
             the shooter in this case and we're going to talk about
             that stuff that something happened in that house that
             aroused his passion to lose self control and what he did
             by losing self control is a reasonable reaction to the
             circumstances.

      "Prosecutors can sum up cases with force and vigor, and are afforded

considerable leeway so long as their comments are 'reasonably related to the scope

of the evidence presented.'" Id. at 593 (quoting Timmendequas, 161 N.J. 515, 587

(1999)). "A prosecutor may respond to defense claims, even if the response tends to

undermine the defense case." Nelson, 173 N.J. at 473. We are satisfied that the


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                                        23
manner in which the prosecutor expressed disbelief in the defense case did not

exceed the bounds of propriety, particularly since the assessment was "reasonably

related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).

      Defendant analogizes this case to State v. Acker, 265 N.J. Super. 351, 356

(App. Div. 1993), where we condemned a prosecutor calling a defense counsel's

arguments "absolutely outrageous" and "absolutely preposterous." In Acker, 265

N.J. Super. at 354-55, the prosecutor not only disparaged the defense with

unsupported allegations, but also suggested to the jury in a prosecution for sexual

abuse of young girls that it was the jury's duty to protect children who had no other

spokesperson, and that the alleged child victims should be given justice. Acker is

clearly distinguishable from the present case, and we find defendant's analogy

unpersuasive.




                                          III.

      Turning to Point II, defendant argues the court erred in denying the motion

for a judgment of acquittal on attempted murder because "the State failed to prove

'the substantial step' element of attempted murder beyond a reasonable doubt."

Defendant asserts that although he "expressed his displeasure that [A.A.] was going


                                                                               A-0215-15T2
                                         24
to testify," nothing in the intercepted phone "conversations even remotely solicited

anyone to take any sort of steps to cause her harm," and without more, his

expressions are "not a cognizable attempt under the law." We agree.

      A motion for judgment of acquittal at the close of the State's case may be

granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.

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

      [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We review a trial court's denial of a motion for acquittal de novo, State v. Williams,

218 N.J. 576, 593-94 (2014), using "the same standard as the [judge] in determining

whether a judgment of acquittal was warranted." State v. Ellis, 424 N.J. Super. 267,

273 (App. Div. 2012). Like the trial court, we "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

(1974)).

      A defendant is guilty of attempted murder if he purposefully did anything with

purpose of, and made a substantial step toward, causing the victim's death. N.J.S.A.


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                                        25
2C:5-1(a)(3); N.J.S.A. 2C:11-3(a)(1). "An attempt is purposeful "not only because

it is so defined by statute, but because one cannot logically attempt to cause a

particular result unless causing that result is one's "conscious object," the

distinguishing feature of a purposeful mental state.'" State v. McCoy, 116 N.J. 293,

304 (1989) (quoting State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986)).

The "statute requires proof of a defendant's criminal purpose, as well as evidence

that he or she had taken a 'substantial step' toward the commission of an object

crime." State v. Perez, 177 N.J. 540, 553 (2003) (quoting N.J.S.A. 2C:5-1(a)(3)).

      "Conduct shall not be held to constitute a substantial step . . . unless it is

strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1(b). "[T]he

step taken must be substantial and not just a very remote preparatory act, and must

show that the accused has a firmness of criminal purpose." State v. Belliard, 415

N.J. Super. 51, 73 (App. Div. 2010) (quoting Model Jury Charge (Criminal),

"Attempt" (2009)). However, "even if further major steps are required before a

crime can be completed, or the accused had ample opportunity to desist prior to

completing the crime, a jury can still conclude that an attempt has been committed."

State v. Fornino, 223 N.J. Super. 531, 540 (App. Div. 1988).

      During oral argument on defendant's motion for a judgment of acquittal on

count nine, the court inquired of the State "what was the substantial step?" In


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response, the State pointed to the following excerpts from the recorded phone

conversations:

            [DEFENDANT]: Yeah ask him about the car and tell
            him what happened wit me in court like           . . . he
            supposed to (inaudible) like what the fuck is people still
            walkin around for?

            [GIRLFRIEND]: Well, what is he . . . what am I
            supposed to tell him that the girl be in court?

            [DEFENDANT]: Yeah.

            ....

            [DEFENDANT]: Well you just text him off of that and
            tell him I said man he gotta down that shit dog

            [GIRLFRIEND]: (Inaudible) my phone, I'm going to
            text him on the Ipad (inaudible)

            [DEFENDANT]: This shit is just, he gotta down that,
            fuck that man them bitches is coming, she keep talking
            all this bitches ain't coming man fuck that, I don't know
            what the fuck they said, what they said is what
            happened fuck everything else it just is what is what
            they said is what happened, fuck it, that's just what it is
            man, that's just what it is

            ....

            [DEFENDANT]: Ain't nobody, if [n-word] was
            understanding my position that bitch would have been
            dead already if [n-word] was understanding my
            position, fuck outta here ain't nobody understanding my
            position yo that bitch is still out there running round
            with your sister and she's coming to court but [n-word]

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                                       27
is understanding my position man come on man nobody
understanding my fucking position dog that shits crazy
as hell yo.

....

[DEFENDANT]: I wouldn't need a lawyer if [n-word]
was moving and doing what they supposed to be doing
the bitch should have been dead already.

[COUSIN]: I can't do it for them I can't make them get
I can't make them get busy you knew who you is dealing
with I can't make them get out there and get busy I can't
definitely get out there and do the type of shit that they
can do (inaudible)

[DEFENDANT]: Yeah I know but you can get me out
of here so I can handle what I gotta handle that's my
whole thing that's my whole thing I'm not worried about
nobody else

....

[DEFENDANT]: Hey no . . . if I was out here for one
day or one week . . . it does not matter my case will be
better

[COUSIN]: This is five racks you talking about
(inaudible) five dollars this is [five] racks you talk
about

[DEFENDANT]: It's five racks and this is my fucking
life . . . but nobody but nobody's you gun go did the
bitch who's gonna do something to the bitch cause she's
still swinging

[COUSIN]: Oh my god


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                           28
            [DEFENDANT]: She's still swinging. Yo everybody
            knows where she's at but nothings going on, nothings
            going on like this shit is this shit is crazy yo oh man
            aright yo aright this shit is crazy . . .

            ....

            [DEFENDANT]: Shit, like this shit is crazy like
            motherfuckers is out there somebody should of went
            and downt that bitch already, like this bitch (inaudible)

            ....

            [DEFENDANT]: I am bugging and tripping cause ain't
            nobody getting out their fucking bed to go knock this
            bitch off count or say anything to the bitch, none of that
            nobody's going none of that everybody's just swinging
            still partying and bullshittin, but if it was them and they
            need the done shit would of got done, shit would have
            been done already like no if ands or buts about it.

            ....

            [DEFENDANT]: [I]f ya'll not gonna handle the
            situation, the [n-word] is just nervous and scared like
            the gun's gonna get turned on them which it might, like
            I have no problem with that, never did that's just me
            like fuck it but you know

      Relying on these excerpts, the court denied defendant's motion for a judgment

of acquittal on count nine. The court explained:

            Based on that, at this posture, of course, all the . . .
            reasonable inferences go to the State, and . . . while it
            is not . . . I'm giving you x to do this, or I'm telling so
            and so that I told him to do that, obviously, the
            reasonable inferences that could be drawn from some

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                                       29
             of those calls is that the order was put out and a step
             was taken and that he was upset that people hadn't done
             it yet.

      Defendant asserts that the phone conversations "merely convey[ed]

[defendant's] reprehensible wish that death befell [A.A.]," but "[t]he attempted

murder statute require[d] more than reprehensible wishes." Defendant asserts

further that "[t]he State failed to present any evidence that defendant enlisted any

specific person . . . to carry out the murder" or "promised remuneration or any other

benefits to these unknown and unidentified persons in exchange for committing the

offense." Thus, according to defendant, the State failed to establish that defendant

"took any steps strongly corroborative of his criminal purpose." We agree.

      In State v. Urcinoli, 321 N.J. Super. 519, 537 (App. Div. 1999), we determined

that the defendant's conversations constituted a substantial step sufficient for an

attempted murder charge where the defendant hired a fellow inmate to kill the State's

witness against him. Expecting the inmate to be released soon, the defendant

discussed with the inmate how the plan would be carried out and how the inmate

would be paid for the murder. Ibid. The defendant also gave the inmate identifying

details about the intended victim. Ibid. We found "[a] jury could reasonably

conclude that by enlisting [the inmate] to his evil plan and providing information to




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                                        30
assist facilitating its purpose[,] . . . defendant took substantial steps to further the

crime." Ibid.

      Likewise, in Fornino, 223 N.J. Super. at 536-37, we determined the evidence

was sufficient for the jury to conclude that the defendant had taken substantial steps

to sustain an attempted murder conviction where he participated in a plan to

effectuate the prison escape of his codefendant, that was thwarted when another

inmate cooperated with prison officials. Because the codefendant was transported

out of the prison on a regular basis for medical treatment, the plan called for the

defendant to kill the guards who accompanied the codefendant on one of those trips.

Id. at 533. To carry out the plan, the defendant had visited the doctors' office where

the escape was supposed to occur and had surveyed a wooded area behind the office

where the bodies of the murdered guards could be disposed. Id. at 538. He also

arranged a meeting the night before the planned escape with the person he believed

was to pay him for his part in the crime and he in fact accepted the agreed upon

payment. Id. at 538-39.

      Similarly, in State v. Jovanovich, 174 N.J. Super. 435 (Resent. Panel 1980),

aff'd 181 N.J. Super. 97 (App. Div. 1981), we held that an individual could be found

guilty of attempted arson for soliciting a specific person to burn his building, offering

payment and describing to the person the layout and type of construction of the


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                                          31
building. We reached this conclusion even though the defendant had not yet

obtained the insurance on the premises, had not paid the person for the commission

of the crime, and planned to stop the plan if foreclosure proceedings on the premises

stopped. Id. at 438.

       Here, although defendant's wishes were reprehensible, defendant's

conversations fall short of the substantial step required for attempt under N.J.S.A.

2C:5-1(a)(3). All that can be inferred from these conversations is defendant's intense

disappointment that A.A. was still alive and his frustration with the circumstances

that had befallen him. Without more, defendant's statements that A.A. should not

be alive and that he would kill her if he were out on bail are insufficient evidence for

the jury to conclude that defendant had taken a substantial step. Without evidence

of an act by defendant identifying a perpetrator and orchestrating the requisite course

of conduct to culminate in the commission of the crime, the State's proofs fall short.

       Accordingly, we conclude the attempted murder conviction in count nine must

be reversed. Therefore, we vacate the conviction on count nine and remand for

resentencing. Because we remand for resentencing, we need not address defendant's

challenge to his sentence.

       Affirmed in part; reversed in part; and remanded for resentencing. We do not

retain jurisdiction.


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                                         32
