                                NOT FOR PUBLICATION WITHOUT THE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-4211-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DONALD EASTERLING,

     Defendant-Appellant.
_________________________

                    Submitted January 10, 2019 – Decided August 16, 2019

                    Before Judges O'Connor, Whipple and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 15-04-0865
                    and 15-04-0866.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stephen W. Kirsch, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Barbara A.
                    Rosenkrans, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Donald Easterling appeals from judgments of conviction of

robbery, aggravated assault, and related weapons charges, as well as the

sentence imposed for those convictions. We vacate defendant's conviction on

one count, affirm his remaining convictions, and remand for merger of his

convictions on two counts, and resentencing.

                                       I.

      On July 30, 2014, defendant, armed with a handgun, robbed several people

in a 99-cent store in Newark. After entering the store with his gun cocked and

loaded, defendant ordered the store owner and two others to get on the floor. He

pointed his gun at the store owner's head when he refused to get on the floor and

demanded that his victims empty their pockets. One victim threw his watch,

money, and a fanny pack on the floor, which defendant scooped up. Defendant

thereafter headed toward the front door. A fourth person in the store realized

defendant did not detect his presence. He quietly climbed through a window

and escaped, locking the door as he exited, and trapping defendant in the store.

Once outside, he flagged down a patrol car that was passing through the

neighborhood and reported the robbery to a police officer.




                                                                         A-4211-16T4
                                       2
      The officer approached the store with his gun drawn. Seeing through the

glass door that defendant was armed and heading to the door, the officer fired

twice. He got a clear look at defendant and identified him at trial. A second

officer arrived at about the same time. Although he saw a figure with a gun in

the store, he could not identify defendant at trial.

      Noticing that defendant, who appeared high on drugs, was wounded from

the officer's gunfire, the three people in the store grabbed defendant and began

to tussle with him. They jumped on defendant, kicked him, fought hi m, and one

threw a "radiator" at him. The three eventually dragged defendant to the front

of the store, stomped on him, and threw him to the floor, face down, with the

gun underneath him.

      A second officer, who was nearby when he heard radio transmissions

reporting the robbery, responded to the scene. He saw the first officer pointing

his gun at the store and yelling "show me your hands, drop the gun." He also

observed defendant on the floor of the store with three men on top of him and

assumed defendant was being robbed. He saw the three men cause defendant's

head to slam against the front door of the store, cracking the glass. At that point,

the officer was within arms' reach of defendant and made eye contact with him.

He heard a bang, saw "muzzle fire," and realized defendant had shot him in the


                                                                            A-4211-16T4
                                         3
knee through the glass door. A third officer arrived just after the shot was fired.

He carried the wounded officer from the scene, securing him behind a police

vehicle. He was later transported to a trauma center. Although the wounded

officer survived the shooting, he was unable to return to work because of his

injuries, experiences mobility limitations, and must wear a leg brace. At trial,

the wounded officer identified defendant as the man who shot him.

      Additional officers arrived, broke through the door, entered the store, and

arrested defendant. He was removed from the floor, where officers found a

Glock handgun. Because he had been shot, defendant was taken to a trauma

center for treatment. Among the items recovered at the robbery was a fanny

pack containing $280 in cash (the store owner claimed it was between $600 and

$700 in cash) from the rear of the store, and a small cup with baggies of

marijuana inside it near the cash register.

      A grand jury indicted defendant charging him with: first-degree attempted

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count one); second-degree

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

assault of a law enforcement officer performing his duties resulting in bodily

injuries, N.J.S.A. 2C:12-1(b)(5)(a) (count three); three counts of first-degree

robbery, N.J.S.A. 2C:15-1 (counts four, five, and six); second-degree unlawful


                                                                           A-4211-16T4
                                        4
possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree

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

eight); fourth-degree aggravated assault on a law enforcement officer in the

performance of his duties not resulting in bodily injury, N.J.S.A. 2C:12-

1(b)(5)(a) (count nine); fourth-degree aggravated assault by pointing a firearm,

N.J.S.A. 2C:12-1(b)(4) (count ten); and fourth-degree possession of prohibited

ammunition, a high-capacity magazine, N.J.S.A. 2C:39-3(j) (count eleven). The

grand jury also charged defendant in a separate indictment with a single count

of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

      At trial, defendant testified that he was an innocent, unarmed bystander in

the store who was attacked by the store owner and his associates, who were

selling marijuana at the front counter. Defendant testified that he was struggling

to get away from the men who were assaulting him when he was shot. He argued

that the Glock handgun found at the store belonged to the store owner, who

presumably used the weapon to protect his drug sales operation.

      Following a jury trial, count nine of the indictment was dismissed. The

jury found defendant guilty of second-degree aggravated assault (count two);

third-degree aggravated assault (count three), two counts of first-degree robbery

(counts four and five), and the three weapons charges (counts seven, eight, and


                                                                          A-4211-16T4
                                        5
eleven). The jury acquitted defendant of attempted murder (count one), fourth-

degree aggravated assault (count ten), and one count of robbery (count six).

Immediately after the jury returned its verdict, defendant entered a guilty plea

to the certain-persons charge, contingent on his other convictions being upheld

on appeal.

      The court sentenced defendant on both indictments to an aggregate

extended term of forty-five years of imprisonment, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. The court imposed the forty-five-year term on

count five, the first-degree robbery of the store owner, with the terms of

incarceration on all other counts to run concurrent with that sentence. The

extended term was mandated by N.J.S.A. 2C:44-3(d), because defendant had a

prior conviction for robbery during which he used a gun. The court also imposed

statutory fees and penalties.

      This appeal followed. Defendant makes the following arguments for our

consideration:

             POINT I

             THE JURY INSTRUCTION ON ROBBERY FAILED
             TO TELL THE JURY HOW THE CHARGED
             BURDEN     OF   PROOF   PERTAINED    TO
             ANSWERING THE "YES/NO" QUESTION THAT
             WAS POSED: "IN THE COURSE OF COMMITTING
             THE ROBBERY DID THE DEFENDANT USE,

                                                                        A-4211-16T4
                                       6
THREATEN THE IMMEDIATE USE OF, OR WAS
HE ARMED WITH A DEADLY WEAPON?" THE
INSTRUCTION ALSO CONFUSINGLY TOLD THE
JURY TO RETURN A VERDICT OF GUILTY ON
THE CRIME OF "ROBBERY" NO MATTER WHAT
ITS ANSWER WAS TO THAT QUESTION. (NOT
RAISED BELOW).

POINT II

THE TRIAL JUDGE SHOULD HAVE CONDUCTED
INDIVIDUAL VOIR DIRE OF THE ENTIRE JURY
ONCE IT WAS BROUGHT TO HER ATTENTION
DURING THE TRIAL THAT A JUROR NOT ONLY
NEEDED TO BE EXCUSED FROM THE JURY
BECAUSE THE JUROR KNEW A POSSIBLE STATE
WITNESS, BUT THAT THE JUROR HAD SPOKEN
TO OTHER JURORS ABOUT HER FAMILIARITY
WITH THE WITNESS; EXCUSING THE JUROR
WAS AN INSUFFICIENT REMEDY UNDER THE
CIRCUMSTANCES. (NOT RAISED BELOW).

POINT III

DEFENDANT SHOULD NOT BE SEPARATELY
CONVICTED OF ROBBERY OF A STORE – THERE
IS NO SUCH CRIME – AND OF ROBBERY OF ONE
OF THE PEOPLE WORKING IN THE STORE; THE
FORMER CONVICTION SHOULD BE VACATED
(OR MERGED); ADDITIONALLY, THE TWO
CONVICTIONS FOR WHAT WAS A SINGLE
AGGRAVATED ASSAULT UPON OFFICER
DOMINGUEZ SHOULD ALSO MERGE. (NOT
RAISED BELOW).




                                           A-4211-16T4
                   7
             POINT IV

             THE SENTENCE IMPOSED IS MANIFESTLY
             EXCESSIVE; THE SAME OFFENSE THAT
             TRIGGERED THE EXTENDED TERM WAS
             DOUBLE-COUNTED AGAINST DEFENDANT IN
             SETTING THE LENGTH OF THAT TERM.

      In a supplemental pro se brief, defendant makes the following argument

for our consideration:

             POINT I

             THE STATE ERRED IN ALLOWING FALSE AND
             PREJUDICIAL STATEMENTS DURING TRIAL OF
             DEFENDANT DONALD EASTERLING WHEN
             STATE WITNESS LLOYD DANBY TESTIFIED
             THAT DEFENDANT HAD POINTED A GUN AT HIS
             HEAD THEN COCKED THE TRIGGER.

                                         II.

      We address first defendant's argument with respect to the jury charge.

Although defendant agreed to the jury instructions given at trial, he argues for

the first time on appeal that the court did not sufficiently instruct the jury on the

elements of first- and second-degree robbery.

      N.J.S.A. 2C:15-1 sets forth the elements of robbery. The statute provides:

             a.      Robbery defined. A person is guilty of robbery
             if, in the course of committing a theft, he:

             (1)   Inflicts bodily injury or uses force upon another;
             or

                                                                             A-4211-16T4
                                         8
            (2) Threatens another with or purposely puts him in
            fear of immediate bodily injury; or

            (3) Commits or threatens to commit any crime of the
            first or second degree.

            An act shall be deemed to be included in the phrase "in
            the course of committing a theft" if it occurs in an
            attempt to commit theft or in immediate flight after the
            attempt or commission.

            b.     Grading. Robbery is a crime of the second
            degree, except that it is a crime of the first degree if in
            the course of committing the theft the actor attempts to
            kill anyone, or purposely inflicts or attempts to inflict
            serious bodily injury, or is armed with, or uses or
            threatens the immediate use of a deadly weapon.

            [N.J.S.A. 2C:15-1.]

      The court instructed the jury that it could find defendant guilty of robbery,

without mentioning a degree, if it found beyond a reasonable doubt that (1) in

the course of a theft (2) defendant threatened another with or purposely put

another in fear of immediate bodily injury. The court proceeded to define the

terms: theft, purposely, bodily injury, force, and knowingly.

      Before explaining the deadly weapon element, the court called counsel to

side bar and asked whether the robbery charge should specifically note that there

are two degrees of robbery, and that the deadly weapon element elevates robbery

to a first-degree crime. The court stated "you never say degree in the charges."

                                                                           A-4211-16T4
                                        9
Defense counsel stated that she wished to continue with the agreed-upon

instructions, and did not want the different degrees of robbery mentioned to the

jury.

        The court then instructed the jury that "the State must prove beyond a

reasonable doubt that the defendant was armed with or used or threatened the

immediate use of a deadly weapon while in the course of committing the

robbery." This describes the elements of first-degree robbery, but the court did

not mention the degree or a lower degree of robbery than was encompassed in

the first instruction.

        The court instructed the jurors that if they had a reasonable doubt about

either of the "elements" of "robbery as I have defined that crime to you," they

must acquit defendant of that crime. The court appears to have been referring

to second-degree robbery. The court then instructed the jurors that if they

believed the State had proven the "crime of robbery" beyond a reasonable doubt,

but did not prove beyond a reasonable doubt that defendant was armed with or

threatened the use of a weapon, they "must find the defendant guilty of robbery."

Again, it appears the court was referring to second-degree robbery. The court

then instructed the jury that if they found defendant "committed the crime of




                                                                         A-4211-16T4
                                       10
robbery and was armed with a deadly weapon," they must "find the defendant

guilty of robbery." Apparently, the court was referring to first-degree robbery.

      The court then reviewed the verdict sheet with the jury. With respect to

robbery, the verdict sheet provided:

            On July 30th, 2014, in the City of Newark, defendant
            Donald Easterling in the course of committing a theft
            upon 99 cent zone, did inflict bodily injury or use force
            against [specified victim] or did threaten [specified
            victim] with, or purposely put him in fear of immediate
            bodily injury. We find the defendant:

            NOT GUILTY ______            GUILTY _______

            If you find the defendant "GUILTY" of Robbery, please
            answer the following question.

            In the course of committing the Robbery did the
            defendant use, threaten the immediate use of, or was he
            armed with a deadly weapon?

            NO ________        YES _________

The court instructed the jury that if it found defendant was guilty of robbery, it

must then answer the question regarding the deadly weapon.

      It is well-settled that “[a]ccurate and understandable jury instructions in

criminal cases are essential to a defendant's right to a fair trial.”      State v.

Concepcion, 111 N.J. 373, 379 (1988). However, "[i]f the defendant does not

object to the charge at the time it is given, there is a presumption that the charge


                                                                            A-4211-16T4
                                        11
was not error and was unlikely to prejudice the defendant's case." State v.

Singleton, 211 N.J. 157, 182 (2012). Therefore, "the failure to object to a jury

instruction requires review under the plain error standard." State v. Wakefield,

190 N.J. 397, 473 (2007).

            As applied to a jury instruction, plain error requires
            demonstration of "legal 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. Chapland, 187 N.J. 275, 289 (2006) (quoting
            State v. Hock, 54 N.J. 526, 538 (1969)).]

The mere possibility of an unjust result is not enough to warrant reversal of a

conviction. State v. Jordon, 147 N.J. 409, 422 (1997). "The error must be

considered in light of the entire charge and must be evaluated in light 'of the

overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)

(quoting Chapland, 187 N.J. at 289).

      "[W]e must read the charge as a whole." State v. Townsend, 186 N.J. 473,

499 (2006). "[T]he prejudicial effect of an omitted instruction must be evaluated

in light of the totality of the circumstances including all of the instructions to

the jury, [and] the arguments of counsel." Ibid. (alteration in original) (quoting

State v. Marshall, 123 N.J. 1, 145 (1991)). A defendant is entitled to a charge

                                                                          A-4211-16T4
                                       12
that is "accurate and that does not, on the whole, contain prejudicial error." State

v. Labrutto, 114 N.J. 187, 204 (1989). "The test to be applied . . . is whether the

charge as a whole is misleading, or sets forth accurately and fairly the

controlling principles of law." State v. Baum, 224 N.J. 147, 159 (2016) (quoting

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

sheet, in conjunction with the jury charges, constitutes the trial court's direction

to the jury." State v. Galicia, 210 N.J. 364, 386 (2012). "[A] jury charge is a

road map to guide the jury," and "[a] verdict sheet is an essential component of

that road map." Id. at 386-87.

      In addition, the flaws in the instructions that defendant challenges were

brought to defense counsel's attention by the court.          Defendant's counsel

dismissed the court's concerns and stated that the instructions were acceptable.

A party cannot profit from an error which he "induced, encouraged or acquiesced

in, or consented to by defense counsel . . . ." State v. Van Syoc, 235 N.J. Super.

463, 465 (Law Div. 1988), aff'd, 235 N.J. Super. 409 (App. Div. 1989). Under

the invited error doctrine, encouraged errors "ordinarily are not a basis for

reversal on appeal . . . ." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State

v. Corsaro, 107 N.J. 339, 345 (1987)). "The doctrine is implicated 'when a

defendant in some way has led the court into error[.]'" Id. at 562 (quoting State


                                                                            A-4211-16T4
                                        13
v. Jenkins, 178 N.J. 347, 359 (2004)). It applies "in a wide variety of situations."

Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 340-

41 (2010)).

      Although defendant's argument is subject to the invited error doctrine, in

the interests of justice we review the jury instructions for plain error. We are

satisfied that the court clearly explained to the jury the elements of robbery and

the State's obligation to prove those elements beyond a reasonable doubt. In

addition, the court adequately instructed the jury with respect to the State's

obligation to prove that defendant used or threatened the use of force, or was

armed with a deadly weapon. While the court did not differentiate the two

degrees of robbery in its instructions or on the verdict sheet, the court instructed

the jury of its obligation to make a separate conclusion with respect to t he

weapons element of first-degree robbery, and the verdict sheet presented the

question of whether the State proved this element as a separate inquiry to be

determined by the jury only if it previously found defendant guilty of robbery.

      In addition, when viewed against the strength of the State's proofs, which

included eyewitness identification of defendant in possession of and using a

handgun, we do not see the alleged lack of precision in the jury instructions as

possessing a clear capacity to bring about an unjust result. This is particularly


                                                                            A-4211-16T4
                                        14
true in light of defendant's position at trial that he was the innocent victim of an

assault by the store owner and his associates. He did not argue that he robbed

the store owner and the others while unarmed. He therefore did not argue a

version of events constituting second-degree robbery. The jury clearly rejected

defendant's testimony, and instead found more credible the State's evidence that

defendant robbed the people in the store while armed with a handgun.

                                        III.

      Quaree Jones was one of the men in the store at the time of the robbery.

Because of an oversight, his name was not on the list of proposed witnesses that

was read to the array during the jury selection process. During the testimony of

another witness, Jones's name was mentioned. Also during that testimony, a

juror accidentally cut himself. A court officer went into the jury room to check

on the juror's condition. Juror No. 14 called out to the officer and told him, in

front of the other jurors, that she recognized the name Quaree Jones. The officer

told the juror to stop talking and reported the conversation to the judge.

      The court questioned Juror No. 14 outside of the presence of the other

jurors. Juror No. 14 stated that Jones had been in a relationship with her

daughter's grandmother "years ago" but that she had not seen him in years. Juror

No. 14 stated that knowing Jones would not interfere with her ability to be fair


                                                                             A-4211-16T4
                                        15
and impartial. She acknowledged that she asked other jurors if they had seen

Jones's name on the witness list, because she thought she may have overlooked

it, and told them that she needed to inform the court that she knew Jones. The

court excused Juror No. 14.

      When asked by the court, both defense counsel and the State agreed that

there was no need to question the other jurors about the incident.             They

expressed concern that further questioning would highlight Jones unnecessarily,

given that Juror No. 14 did not convey any information about him to them.

Defendant argues for the first time on appeal that the trial court erred by not

questioning the remaining jurors to determine if Juror No. 14 told them anything

about Jones.

      The Sixth Amendment of the United States Constitution and Article I,

paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to trial by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, para.

10. "That constitutional privilege includes the right to have the jury decide the

case based solely on the evidence presented at trial, free from the taint of outside

influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). A

new trial should be granted only when the "intrusion of irregular influences into

jury deliberations 'could have a tendency to influence the jury in arriving at its


                                                                             A-4211-16T4
                                        16
verdict in a manner inconsistent with the legal proofs and the court's charge. '"

State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div. 1997) (quoting Panko v.

Flintkote, 7 N.J. 55, 61 (1951)).

      When a juror informs the court that she has extraneous information

relating to a witness, "[t]he court is obliged to interrogate the juror, in the

presence of counsel, to determine if there is a taint; if so, the inquiry must

expand to determine whether any other jurors have been tainted thereby." R.D.

169 N.J. at 558. The court must determine "whether the juror intentionally or

inadvertently has imparted any of that information to other jurors." Id. at 560.

"Depending on the juror's answers to searching questions by the court, the court

must then determine whether it is necessary to voir dire individually other jurors

to ensure the impartiality of the jury."      Ibid. "[T]he decision to voir dire

individually the other members of the jury best remains a matter for the sound

discretion of the trial court." Id. at 561.

      Our review of the record reveals that the court did not abuse its discretion

when it decided not to individually question the jurors who were not excused.

As a preliminary matter, we note that the invited error doctrine would permit

this court to decline to review this issue. Van Syoc, 235 N.J. Super. at 465.

Defense counsel, apparently satisfied that Juror No. 14 gave a credible account


                                                                          A-4211-16T4
                                        17
of her interaction with the other jurors, declined the trial court's suggestion that

voir dire of the other jurors might be necessary. We review the issue, however,

for plain error. R. 2:10-2.

      The court, having had the opportunity to question Juror No. 14 and to

assess her credibility, determined that she did not share any information, other

than reporting that she knew Jones, with the other jurors. In addition, the extent

of Juror No. 14's relationship was Jones was limited and ended years before the

trial. She did not have any personal knowledge of the events that gave rise to

the indictments or Jones's involvement in those events. She expressed to the

court no opinion on his credibility or character. The court acted within its

discretion when it determined that questioning the other jurors about Jones

would unnecessarily highlight him in their minds.

                                        IV.

      The State concedes defendant cannot be convicted of both first-degree

robbery of the store (count four) and first-degree robbery of the owner of the

store (count five). A robbery conviction requires the jury to unanimously

conclude that a defendant knowingly used or threatened force against a specific

victim. State v. Gentry, 183 N.J. 30 (2005). Defendant's conviction under count

four is, therefore, vacated.


                                                                            A-4211-16T4
                                        18
      The State also concedes defendant was improperly convicted of both

second-degree bodily injury aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count

two), and third-degree aggravated assault on a police officer while performing

his duties resulting in bodily injury, N.J.S.A. 2C:12-1(b)(5)(a) (count three).

The charges involve the same elements, State v Miles, 229 N.J. 83 (2017), and

amount to two convictions for the same assault. State v. Graham, 223 N.J.

Super. 571, 577 (App. Div. 1988). Defendant's conviction under count three

must be merged with his conviction under count two.

                                       V.

      We reject defendant's argument that his sentence is excessive. "Appellate

review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127

(2011).   We are satisfied that the judge's findings and balancing of the

aggravating and mitigating factors are supported by adequate evidence in the

record, and the sentence is neither inconsistent with sentencing provisions of the

Code of Criminal Justice nor shocking to the judicial conscience. See State v.

Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010);

State v. Cassady, 198 N.J. 165, 180-81 (2009). Defendant, who had a lengthy

history of criminal convictions, committed an armed robbery during which he

shot a police officer and committed other offenses.        He was subject to a


                                                                          A-4211-16T4
                                       19
mandatory extended term, given that he is a two-time offender for a firearms

charge. N.J.S.A. 2C:44-3(d). Forty-five years of imprisonment, close to the

mid-range for a first-degree crime, is consistent with the gravity of defendant's

criminal conduct.

      To the extent we have not specifically addressed any of defendant's

remaining arguments it is because we conclude they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Defendant's conviction on count four is vacated.           His remaining

convictions are affirmed. The matter is remanded for merger of his conviction

on count three with his conviction on count two, and resentencing. We do not

retain jurisdiction.




                                                                         A-4211-16T4
                                      20
