                        NOT FOR PUBLICATION WITHOUT THE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-1485-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAIME H. FERNANDEZ,

        Defendant-Appellant.


              Submitted May 10, 2017 – Decided July 18, 2017

              Before Judges Alvarez and Manahan.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Morris County,
              Indictment No. 14-04-0388.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Louis H. Miron, Designated
              Counsel, on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney   for  respondent   (Paula  Jordao,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Tried by a jury, defendant Jaime H. Fernandez was convicted

of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and

acquitted of third-degree aggravated assault on a law enforcement
official, N.J.S.A. 2C:12-1b(5)(a).                      On May 21, 2015, he was

sentenced to two years' probation, 180 days of county jail time,

and appropriate fines, penalties, and assessments.                          He appeals and

we affirm.

       At    the   trial,   two   Mount      Olive       Township         police    officers

testified on behalf of the State.                 Sergeant Anthony Annecchiarico

testified that he drove to defendant's residence to serve him with

a temporary restraining order issued under the Domestic Violence

Act.   See N.J.S.A. 2C:25-17 to -35.                   The order required defendant

to turn over the parties' seven-year-old son to his former wife.

Patrolman Anthony Hering accompanied Annecchiarico.

       When    the   two    officers      arrived         at    defendant's         home        at

approximately 5:45, defendant's girlfriend and the child were at

the home, but defendant was not.                   Defendant's girlfriend spoke

with the officers and told them she would need to speak with

defendant before she would agree to turn the child over.                                      She

called      defendant,     and   he   told       her    he     was   on    his     way     home.

Annecchiarico overheard "yelling from the other end of the phone"

during their conversation.

       Annecchiarico returned to his patrol car to await defendant's

arrival.      He saw defendant park next to Hering's vehicle.                                   As

Annecchiarico left his patrol car, he heard defendant yelling.                                  He

saw defendant crossing toward Hering with his hands clenched while

                                             2                                           A-1485-15T2
moving his arms, screaming at Hering.              Defendant lifted his shirt

and yelled "I don't have no gun, you're gonna have to shoot me,

m----- f-----."    Annecchiarico told him that "nobody has to die,

relax, calm down[,]" but had to use pepper spray to attempt to

subdue defendant while Hering took him to the ground.                        Once

defendant was on the ground, Annecchiarico was able to handcuff

one arm, but defendant struggled to keep his other arm from being

restrained.    Annecchiarico called for an ambulance once he saw

that defendant had been injured during the altercation.

     Hering, who had been present when defendant's girlfriend

called him, also heard "a lot of yelling" over the phone.                  After

waiting in his patrol car some ten to fifteen minutes, he saw

defendant drive into the parking lot, heading towards him.                      He

said that defendant "[a]lmost struck my patrol vehicle and parked

next to me on my right side . . . [l]ess than a door length" away.

     Defendant    left   his   truck       while    screaming   "f---,    f---."

Defendant charged at Hering yelling "no, no," and "you're not

going to take my kid you m----- f-----."               Hering said defendant

was enraged, his eyes "bulging out of his head," and his face

bright red.    Defendant had a set of keys in his right fist wedged

between his fingers.     Hering was afraid that defendant was going

to kill him.



                                       3                                 A-1485-15T2
      Hering ordered defendant to take a step back and defendant

repeated, "you're not going to take my kid, you m----- f-----.

You're gonna have to kill me to take my son."             Hering attempted

to grab defendant's arm to place him in a compliance hold, and

defendant ignored his commands.      He ripped his arm out of Hering's

grasp, yelled "don't touch me," and went towards the back of his

pickup truck, "beating his chest" and yelling "kill me, kill me."

      When   Annecchiarico   ran   over   to   assist    Hering,   defendant

yelled "I ain't got no guns you m----- f-----[.]"             Hering tried

to sweep defendant's leg to get him to the ground, but it was not

until he grabbed defendant's shoulders that he succeeded in doing

so.   Defendant continued to struggle once on the ground.             Hering

was injured as a result of the struggle, scraping his hands.

Neither officer told defendant that he was under arrest.

      The video played for the jury from Annecchiarico's patrol car

opens with defendant screaming foul expletives, and Annecchiarico

telling him to "relax, stop yelling."          On the tape, defendant is

heard to yell "[g]et off me, I don't have no gun, I don't have no

gun, you'll have to kill me, m----- f-----."            The officers can be

heard telling defendant to relax, while an unidentified female

voice can be heard saying "Jaime, stop, stop."

      Defendant's girlfriend testified that when she arrived at the

parking lot she saw the police hitting defendant, and that Hering

                                    4                                A-1485-15T2
punched him two or three times in the face. Defendant's girlfriend

also claimed that the officers were kneeling on him, rubbing his

face on the ground, and that he had blood all over his face.             When

she told the officers to stop, she said one of them pushed her

away.   She saw defendant leave in an ambulance.

     After the State rested its case, defendant moved for acquittal

on both charges.        He argued that in order to resist arrest, a

person has to be under arrest, and that at the time of the incident,

defendant was not under arrest for anything.          The judge denied the

motion, holding that given the State's proofs, a reasonable jury

could readily find defendant guilty.

     During the charge conference, the judge read the proposed

jury instructions to the attorneys, and asked if they had any

objections.       The judge agreed with the modifications defense

counsel suggested.      Defense counsel also briefly raised the issue

of the "justification" defense to resisting arrest, but added "I'm

not suggesting that you charge justification.          And the reason why

I say that is because I think Your Honor's correct that the

defendant   has    to   testify   in   order   to   allow   that   request."

Immediately after the judge charged the jury, he asked counsel at

sidebar if they had any comments or request for additional charges.

They did not.



                                       5                             A-1485-15T2
    During Hering's cross-examination, the judge instructed the

jury as follows:

              Ladies and gentlemen, I just want to
         clarify something for you, okay.      If the
         arrest is a legal arrest, the police do not
         need to announce it, okay.    The facts must
         simply show that the defendant knew he was
         being arrested and he nevertheless resisted.

              Now, in contrast, if the arrest if an
         unlawful arrest, then the officer has to
         announce his intention to arrest, all right.
         Unless of course the officer was acting under
         color of official authority, okay.

              Now, I don't expect you to remember that
         right now. In other words, if it's a lawful
         arrest, then they don't have to announce it.
         But the facts would have to simply indicate
         that the defendant knew he was being . . .
         arrested and he nevertheless resisted.

              That's a factual determination that you
         would make, okay.

              If you should determine that it was an
         unlawful arrest, all right, the officer would
         have to announce the intention to arrest the
         defendant before he resisted, unless the
         officer was acting under color of official
         authority.

              All right? So if it's an unlawful arrest
         and you find it, it's an unlawful arrest, he
         has to announce his intention to arrest.

              Now that you may not be clear, but it's
         now 20 minutes to four and I'm going to charge
         you, do you follow me, at the appropriate
         time.   If you want, when you come out here
         tomorrow morning, if you want me to go over
         that again, I will go over it again, all right.


                               6                           A-1485-15T2
The following morning, immediately after the jury entered the

courtroom, the judge instructed as follows:

                All right.    Good morning, ladies and
           gentlemen. I see that you're all here. Before
           we continue with the cross examination of the
           witness I don't believe that I misspoke
           yesterday, but I want to make sure that I
           didn't with respect to, I'll call it, the
           announcement issue, okay?     Again, I don't
           think I did. The attorneys don't think I did.
           But I'm going to ask you to disregard what I
           said and I will instruct you once again, okay?

                If the arrest is legal the police do not
           need to announce it. The facts must simply
           show that the defendant knew he was being
           arrested and he, nevertheless, resisted. The
           lack of an announcement that the defendant was
           being placed under arrest, however, could be
           considered by you if you choose to do so in
           evaluating or determining defendant's guilt.

                It is a factor you can consider along
           with all other factors in the sequence of the
           events.

                Now, if you should find that the arrest
           was unlawful the officer or one of them acting
           under color of official authority would have
           to announce the intention to arrest before the
           defendant resist. Okay?

                Anybody want me to repeat it again, raise
           your hand and I will. No one's raised their
           hand. All right, let's continue.

       During his final charge, the judge gave the jury the Model

Jury   Charge   instruction   on   resisting   arrest,   including   the

distinction between lawful and unlawful arrest:



                                    7                           A-1485-15T2
              The first element the State must prove
         beyond a reasonable doubt is that Hering was
         a law enforcement officer.

              A law enforcement officer is a person
         whose public duties include the power to act
         as an officer for the detention, detection,
         apprehension,   arrest  and   conviction  of
         offenders against the laws of this state.

              The second element that the State must
         prove beyond a reasonable doubt is that Hering
         was effecting an arrest.

              It is not a defense to 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
         officer announces his intention to arrest
         prior to the resistance.


    On appeal, defendant raises the following points for our

consideration:

         I.   THE TRIAL COURT ABUSED ITS DISCRETION IN
         DENYING FERNANDEZ'S MOTION FOR ACQUITTAL AT
         THE CONCLUSION OF THE STATE'S CASE WITH
         RESPECT TO THE RESISTING ARREST COUNT BECAUSE
         THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE
         FERNANDEZ GUILTY OF THE CHARGE BEYOND A
         REASONABLE DOUBT.

         II. THE TRIAL COURT'S JURY CHARGE REGARDING
         RESISTING ARREST WAS MISLEADING, AMBIGUOUS AND
         FATALLY DEFECTIVE BECAUSE IT FAILED TO
         DISTINGUISH CLEARLY THE POLICE OFFICER'S
         OBLIGATIONS AND DEFENDANT'S RESPONSE THERETO
         IN THE CONTEXT OF A LEGAL ARREST AND IN THE
         CONTEXT OF AN ILLEGAL ARREST.




                               8                          A-1485-15T2
            III. THE TRIAL COURT SHOULD HAVE INSTRUCTED
            THE JURY CONCERNING THE JUSTIFICATION DEFENSE
            TO THE RESISTING ARREST CHARGE.

                                 I.

     We review de novo a claim that a trial court erred in denying

a motion for acquittal on the basis of insufficiency of the

evidence.   State v. Dekowski, 218 N.J. 596, 608 (2014).    We apply

the same standard as the trial court, asking:   "whether, based on

the entirety of the evidence and after giving the State the benefit

of all its favorable testimony and all the favorable inferences

drawn from that testimony, a reasonable jury could find guilt

beyond a reasonable doubt."   Ibid. (quoting State v. Williams, 218

N.J. 576, 594 (2012)).

     If a party did not object at trial to the jury instructions,

they are reviewed for plain error and reversed only if "such an

error was 'clearly capable of producing an unjust result.'"    State

v. Miller, 205 N.J. 109, 126-127 (2011) (quoting R. 2:10-2).

Appellate review of a jury instruction requires "not only scrutiny

of the charge itself, but an inquiry as to whether an erroneous

charge may have affected the trial's result." Washington v. Perez,

219 N.J. 338, 351 (2014).     Erroneous jury instructions are not

reversed if "incapable of producing an unjust result or prejudicing

substantial rights."    Ibid. (quoting Mandal v. Port Auth. of N.Y.

& N.J., 430 N.J. Super. 287, 296 (App. Div.) certif. denied, 216

                                  9                          A-1485-15T2
N.J. 4 (2013)).   However, "where the jury outcome might have been

different had the jury been instructed correctly," erroneous jury

instructions    constitute   reversible   error.      Ibid.   (quoting

Velazquez v. Portadin, 163 N.J. 677, 688 (2000)).

                                 II.

       Defendant contends that his motion for acquittal on the

resisting arrest charge should have been granted as the State's

evidence was insufficient to prove guilt beyond a reasonable doubt.

The statute makes an actor guilty of resisting arrest if "he

purposely prevents or attempts to prevent a law enforcement officer

from effecting an arrest," and either "[u]ses or threatens to use

physical force or violence against the law enforcement officer or

another; or [u]ses any other means to create a substantial risk

of physical injury to the public servant or another."

       Resisting arrest "requires a culpability of purpose."     State

v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997).     A defendant

therefore must be aware that police are attempting to effectuate

an arrest to be guilty of resisting it.       Ibid.   However, if an

arrest is lawful, a police officer's failure to announce that

defendant is under arrest does not warrant an acquittal on its

own.    Ibid.   It is merely "one factor to be considered in the

overall sequence of events leading to the arrest."       Ibid.    If a

reasonable jury could find that, based on the circumstances,

                                 10                            A-1485-15T2
defendant knew police were attempting to make an arrest, and

defendant resisted that arrest, there is sufficient evidence to

uphold a conviction.       Ibid.

       Regarding an unlawful arrest, N.J.S.A. 2C:29-2 specifically

provides that "[i]t 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."

(Emphasis added).       Thus, if the State failed to prove that police

had announced their intention to arrest defendant before his

resistance, he could not be convicted of resisting an unlawful

arrest pursuant to N.J.S.A. 2C:29-2.             State v. Kane, 303 N.J.

Super. 167, 182 (App. Div. 1997).

       It is undisputed that the officers did not announce their

intention to arrest defendant.         It is equally obvious, from the

videotape and the testimony of the officers, that defendant, from

the moment he arrived at the parking lot, threatened Hering.

Defendant nearly struck Hering's patrol vehicle, and he screamed,

yelled obscenities, and charged at the officer.               Defendant also

said that he was not going to allow his child to be taken.

       Defendant's argument that the failure to announce in this

case   invalidated   the    legitimacy    of    the    arrest,    and   somehow

                                     11                                 A-1485-15T2
therefore nullified the resisting arrest charge, lacks merit.

Although the officers had no intent to arrest defendant when they

arrived at his home, defendant's behavior posed a threat to the

officers' safety and the safety of others, and thus made his arrest

a necessity.1

     In State v. Brown, 205 N.J. 133 (2011), the Court considered

a similar scenario in which, although the police initially had no

authority to arrest the defendant, the defendant's behavior in a

public place, like the parking lot here, made their warrantless

arrest lawful. Only when defendant charged at Hering, lost control

of his temper, and became threatening, was probable cause to make

a lawful arrest established.    Defendant was threatening to the

officers, and his behavior posed a threat to others in the parking

lot as well.    Defendant was also obstructing the administration

of justice, itself a crime.   As defendant said, he was willing to

die in order to prevent them from fulfilling their duties.

     In   Brown,   the   officers    arrived   at   the   defendant's

girlfriend's apartment to arrest him, but their warrants were

invalid. Brown, supra, 205 N.J. at 146-47. Defendant had received

a warning phone call from his mother, and fled through a rear



1
  We do not address defendant's point that the jury's verdict was
fatally inconsistent. That they did not find an assault was not
inconsistent with finding that defendant resisted arrest.

                                12                            A-1485-15T2
window.       Ibid.   While on a rooftop, he engaged in a twenty-minute

standoff with police.        Ibid.    The Court found that even though the

arrest warrants were invalid, the defendant's conduct made their

legality inconsequential.            Id. at 147.       In similar fashion, in

this case, defendant's behavior was so threatening from the moment

he left his vehicle that the officers had no alternative, once he

did not respond to their efforts to calm him down, but to arrest

him.

       N.J.S.A. 2C:29-1(a) makes it an offense for a person to

"prevent[] or attempt[] to prevent a public servant from lawfully

performing an official function by means of . . . intimidation

. . . or physical interference or obstacle."                    Once defendant

behaved in this fashion, there was no need for the officers to

announce their intent to arrest.               In other words, defendant's own

conduct converted what should have been a difficult but peaceful

piece    of    police    business    to    a    potentially   violent   physical

confrontation.          The arrest was lawful, and thus there was no

necessity for the officers to announce their intention.

       We are satisfied that a reasonable jury, having heard the

testimony and seen the video, could find guilt beyond a reasonable

doubt.




                                          13                             A-1485-15T2
                                 III.

       An improper jury instruction that tends to "confuse or mislead

the jury" may require reversal of the verdict.          Wade v. Kessler

Inst., 343 N.J. Super. 338, 345 (App. Div. 2001).           However, the

trial   judge's   resisting   arrest   charge   was   not   improper,    it

accurately explained the law, and there is no evidence that it

confused the jury.

       The trial judge, virtually word-for-word, instructed the jury

in accordance with the Model Jury Charge for resisting arrest.

See Model Jury Charge (Criminal), "Resisting Arrest" (2007).            The

only significant deviation from the model charge was the judge's

explanation of the different requirements for resistance to an

unlawful arrest versus a lawful arrest.         The judge had explained

these differences to the jury throughout the trial in addition to

this final charge.     The judge's explanation was correct in the

law.    See Kane, supra, 303 N.J. Super. at 182; Branch, supra, 301

N.J. Super. at 321.

       Shortly after beginning deliberations, the jury asked to see

the video of defendant's arrest.          It later sent out a note

requesting the definition of lawful versus unlawful arrest in

writing.    In response, the judge said:

            First of all I've indicated to you I want you
            to consider the jury instructions in their
            entirety, okay?   So I wouldn't send you in

                                  14                              A-1485-15T2
           just something that contained a brief portion
           of what I instructed you.

           But the ultimate issue as to whether or not
           the arrest was lawful or unlawful is for you
           to determine as the finders of the facts. All
           right?

           So that's my response to your note.

     In   this   case,   whether   defendant's   arrest   was   lawful    or

unlawful was pivotal.      The judge stressed that defendant had to

know that "he was being arrested and he, nevertheless, resisted.

The lack of an announcement that defendant was being placed under

arrest, however, could be considered by you if you choose to do

so in evaluating or determining defendant's guilt."

     The judge's response to the juror question was appropriate.

The circumstances in this case left little room for doubt regarding

the necessity of the arrest in order to protect persons at the

scene from defendant's anger.      The distinction between lawful and

unlawful arrest was basically and properly left to the jury's

determination as the finders of fact.

     No objection was made to the judge's three instructions

regarding the need for a warning if the arrest was unlawful, that

no warning was necessary if the arrest was lawful, and the fact

the jury had to decide guilt accordingly.         In the absence of an

objection, we presume instructions are proper and they will not

be disturbed except upon a finding of plain error.              R. 2:10-2;

                                    15                             A-1485-15T2
State v. O'Caroll, 385 N.J. Super. 211, 235 (App. Div.), certif.

denied, 188 N.J. 489 (2006).           Trial counsel agreed with the jury

instructions on resisting arrest, and given the circumstances that

resulted   in    this   indictment,        we   do   not   see   how   the   judge's

instruction possessed the clear capacity to bring about an unjust

result.

                                        IV.

     Finally,     defendant        contends     that   the   court     should    have

instructed the jury regarding the justification defense to the

resisting arrest charge.           By telling the judge during the charge

conference      that    he   was    "not     suggesting      you   should     charge

justification," defense counsel not only acceded to the judge's

decision not to charge justification, but agreed with it.                         See

Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996) ("The doctrine

of invited error operates to bar a disappointed litigant from

arguing on appeal that an adverse decision below was the product

of error, when that party urged the lower court to adopt the

proposition now alleged to be error.").

     It is clear that N.J.S.A. 2C:3-4 allows a person to use force

in resisting an arrest when "the actor reasonably believes such

force is immediately necessary for the purpose of protecting

himself," and the officer is using unlawful force to effect the

arrest. The judge concluded that there were no facts in the record

                                        16                                   A-1485-15T2
which justified instructing the jury about justification, and we

agree.   Although a trial judge must provide jury instructions on

alternate defense theories where supported by even "very slight

evidence[,]" State v. Singleton, 418 N.J. Super. 177, 203 (App.

Div. 2011), no such evidence existed here.   The videotape and the

officers' testimony made clear that force was necessary to subdue

defendant because he was so enraged about the TRO that he told the

officers they would have to kill him in order to take away his

child.   Nothing in the record indicated that the officers used

unlawful force, and thus there was no basis for the judge to give

the justification defense.

     Affirmed.




                               17                          A-1485-15T2
