                             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                        NOT FOR PUBLICATION WITHOUT THE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-3135-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

M.P.,

        Defendant-Appellant.

______________________________


              Submitted October 18, 2017 – Decided November 27, 2017

              Before Judges Alvarez and Currier.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Hudson County,
              Indictment No. 13-09-1797.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Kerry J. Salkin,
              Assistant Prosecutor, on the brief).

PER CURIAM
     Defendant M.P.1 appeals from his conviction following a jury

trial.     He   also   contends    that   an   error   in   the    judgment      of

conviction (JOC) requires a remand for its correction.                 After a

review of the arguments in light of the record and applicable

principles of law, we affirm the conviction, but remand for a

correction of the JOC.

     Defendant was charged in a twenty-two count indictment with

two counts of armed burglary, N.J.S.A. 2C:18-2 (count one and

count fourteen); two counts of possession of a weapon for an

unlawful   purpose,     N.J.S.A.    2C:39-4(d)    (count     two    and     count

eighteen); two counts of unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count three and count nineteen); two counts of witness

tampering, N.J.S.A. 2C:28-5(a) (count four and count twenty); one

count of terroristic threats, N.J.S.A. 2C:12-3(b) (count five);

one count of criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count

six); three counts of criminal contempt, N.J.S.A. 2C:29-9 (count

seven, count eight, and count twenty-one); one count of armed

robbery, N.J.S.A. 2C:15-1 (count nine); three counts of aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(count ten, count eleven, and

count twelve); one count of sexual assault, N.J.S.A. 2C:14-2(c)

(count thirteen); one count of aggravated assault, N.J.S.A. 2C:12-


1
  We use initials to protect the privacy of the individuals in
this case.

                                      2                                   A-3135-15T3
1(b)(1) (count fifteen); one count of criminal restraint, N.J.S.A.

2C:13-2    (count   sixteen);   one     count     of   terroristic   threats,

N.J.S.A. 2C:12-3(a) (count seventeen); and one count of stalking,

N.J.S.A. 2C:12-10 (count twenty-two).

     The criminal charges arose out of conduct that occurred in

September and October 2012.          All of the charges pertained to the

same victim, defendant's wife, C.G.2               Counts one through six

stemmed from a September break-in incident, and counts nine through

twenty related to a break-in and sexual assault in October.

     The   State    severed   and    ultimately    dismissed   the   contempt

charges - counts seven, eight and twenty-one.            Defendant requested

separate trials for the two break-in incidents and the stalking

charges. The trial court denied defendant's motion for a severance

of counts one through six, nine through twenty, and twenty-two.

     The testimony at trial revealed that shortly before these

events, defendant and C.G. had separated and defendant had moved

out of the marital home.            Defendant, however, did not wish to

separate or divorce and was determined to return home.                    C.G.

testified that defendant broke into the marital home on September

6, 2012, while she and the three children were there.            C.G. called

the police and took the children to stay at her sister's home.


2
  The parties were divorced during the pendency of the criminal
case.

                                       3                              A-3135-15T3
      When C.G. returned to the home on September 15, she saw

defendant in the backyard.          She again reported this incident to

the   police,    telling    them    that     defendant   was    harassing       her

everywhere she went.

      On   September      26,    defendant     approached      C.G.   at     their

children's school.        He told her that he wanted to return to the

marital home.     When she told him no, C.G. stated that defendant

"g[o]t into [her] face and he said I'm going to kill you."                     C.G.

called the police.         The following day, C.G. observed defendant

parked across the street from her sister's house, and she again

filed a complaint with the police.

      In October, C.G. and the children were still staying at her

sister's home, but they returned to the marital home in the

mornings and she remained there during the day.                On October 3, as

the children were getting ready for school at home, C.G. noticed

that "the [bathroom] window lock was broken" and the window was

open.   She contacted the police and when they arrived, the officer

stated that she thought someone may have entered through the

bathroom window.       According to C.G., the officer did not conduct

a full search of the home before leaving.

      As   she   locked    the   door   behind    the    officer,     C.G.     said

defendant, who had been hiding in the house, attacked her.                      She

stated that defendant had a knife, pulled her hair, and banged her

                                        4                                  A-3135-15T3
head against the floor.           C.G. further testified that defendant

choked her, and threatened to kill her if she did not drop all of

the    charges   against   him.     She    also   stated   that   he   sexually

assaulted her.      After C.G. agreed to drop all of the charges,

defendant took $400 out of her purse and left the home.

       Defendant also testified at the trial.          He admitted being at

the children's school on September 26.            Although he stated he was

emotional and angry during this interaction, he denied threatening

C.G.    Defendant also did not dispute that he parked outside C.G.'s

sister's house, but he said he wanted to speak with his wife's

sister to ask her to convince C.G. to reunite with him.

       As to the events of October 3, defendant testified that C.G.

called him that morning because she needed $400 and asked him to

come to the house.         When defendant arrived, he said that C.G.

invited him in and explained why she needed the money.                 She also

showed defendant the bathroom window and explained that she thought

someone had attempted to break in.            Defendant testified that he

asked C.G. if he could come back home and told her he missed his

family.    He stated that the two of them became affectionate and

eventually had consensual sexual intercourse.

       According to defendant, C.G. asked him for the money, but he

only had some of it.       He then said that C.G. cursed at him, picked

up a knife, and lunged towards him; cutting his hand and fingers

                                       5                                A-3135-15T3
as he attempted to protect himself.         They began tussling on the

floor and defendant admitted that he punched her once in the face

while trying to defend himself.          Defendant testified that after

the altercation, they bandaged each other's hands.          He gave C.G.

the money he had, told her he would bring the rest the next day,

and then left the home.

      Defendant was tried before a jury and convicted of third-

degree assault, a lesser included offense of the charged offense

of aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count fifteen).3

The   jury   also   convicted   defendant   of   fourth-degree   stalking,

N.J.S.A. 2C:12-10, count twenty-two and acquitted him of the

remaining seventeen counts.      Defendant was sentenced to concurrent

probationary terms on each conviction with the condition that he

serve a 364-day prison term.4         The trial court also entered a

permanent restraining order, barring defendant from having any

contact with his ex-wife.

      On appeal, defendant raises the following arguments:

             POINT I:    THE COURT HAVING ALLOWED THE TWO
             BREAK-INS TO BE TRIED TOGETHER, IT WAS
             OBLIGATED TO INSTRUCT THE JURY ON THE LIMITED
             USE   OF   THE   OTHER-CRIME  EVIDENCE,   AND
             SPECIFICALLY, THAT IT COULD NOT USE THE

3
  The JOC indicates a conviction of count sixteen, rather than
count fifteen.
4
  Defendant was incarcerated pending trial and had 1257 days of
jail credit.

                                     6                             A-3135-15T3
           EVIDENCE OF EACH BREAK-IN AS PROOF THAT
           DEFENDANT IS A PERSON OF CRIMINAL CHARACTER
           AND THEREFORE MORE LIKELY GUILTY OF ALL OF THE
           CHARGED OFFENSES. (Not Raised Below)

           POINT II: THE STALKING CONVICTION MUST BE
           REVERSED BECAUSE THE JURY DID NOT IDENTIFY THE
           INCIDENTS ON WHICH IT BASED THE CONVICTION,
           ACQUITTED DEFENDANT OF SOME OF THE PROFFERED
           INCIDENTS, AND WAS NOT REQUIRED TO FIND EACH
           INCIDENT UNANIMOUSLY. (Not Raised Below)

           POINT III: THE JUDGMENT OF CONVICTION MUST BE
           AMENDED BECAUSE IT INCORRECTLY STATES THE
           VERDICTS ON COUNTS 15 AND 16.

      Defendant did not raise these contentions at trial.             He did

not   request   either   that   the   trial   court   provide    a   limiting

instruction pursuant to N.J.R.E. 404(b) or a special unanimity

instruction pertaining to the stalking charge.           As a result, we

review his arguments for plain error.           See State v. Brown, 138

N.J. 481, 535 (1994).       Plain error is that which is "clearly

capable of producing an unjust result."          State v. Whitaker, 200

N.J. 444, 465 (2009) (quoting R. 2:10-2).

      Defendant argues that a Rule 404(b) limiting instruction was

required at trial because the evidence presented to the jury of

several break-ins was evidence of "other crimes."               We disagree.

It is not necessary to give a Rule 404(b) limiting instruction

when multiple charged offenses in a single indictment are being

prosecuted in a single trial.



                                      7                               A-3135-15T3
      Rule 404(b) addresses uncharged crimes, wrongs, or acts.                 See

State v. Rose, 206 N.J. 141, 179-80 (2011).                   "The threshold

determination under Rule 404(b) is whether the evidence relates

to 'other crimes,' and thus is subject to continued analysis under

Rule 404(b), or whether it is evidence intrinsic to the charged

crime[s]" before the jury at trial.            Id. at 179.    If evidence of

an uncharged crime, wrong, or act is admitted during a trial,

"limiting instructions must be provided to inform the jury of the

purposes for which it may, and for which it may not, consider the

evidence   of   defendant's   uncharged        misconduct."        Id.    at   161

(emphasis added).

      Evidence introduced to directly prove a charged offense,

however, is "intrinsic" and not subject to Rule 404(b).                   Id. at

180-81.    Here, all of the presented evidence pertained to charged

crimes for which defendant was being prosecuted in this trial.

There was no evidence of any "other crimes" and, therefore, no

obligation to issue a limiting instruction under Rule 404(b).

      Moreover, the trial judge advised the jury in his instructions

that there were eleven separate charged offenses in the indictment

and that "[e]ach is a separate offense named in a separate count."

He   stated   that   defendant   was       "entitled   to   have   each     count

considered separately by the evidence which [was] relevant and

material to [that] particular charge based on the law."              See State

                                       8                                  A-3135-15T3
v. Pitts, 116 N.J. 580, 603 (1989) (stating that in the case where

multiple charges are joined, it is "adequate" that the court

"caution[] the jurors to deliberate separately on each of the       .

. . counts, and to return a judgment of conviction only if

convinced that each element of the individual counts had been

proved beyond a reasonable doubt.").

     Defendant also contends that the trial court erred in failing

to issue a specific unanimity instruction on the stalking charge

because the State introduced evidence of several incidents.        He

relies on State v. Parker, 124 N.J. 628, 633 (1991), cert. denied,

502 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), for his

assertion that, without a special instruction, there was a risk

that a conviction occurred as the result of different jurors

concluding that defendant committed different acts.   Defendant did

not request this charge and, therefore, we again review it for

plain error.

     In Parker, a jury convicted a teacher of official misconduct

against children for a series of alleged acts, including making

them watch pornography, cursing at them, and insulting them.     Id.

at 631-32.   On appeal, the defendant argued that because the trial

court failed to include a specific instruction on unanimity, the

verdict should be vacated, as it was unclear as to which act the

jury convicted her.   Id. at 632-33.   The Court disagreed, holding

                                 9                          A-3135-15T3
that because all of the alleged actions subjected the victims to

"abusive, humiliating conduct" which was meant to be "harmful to

their   physical     or   mental    health[,]"     the   allegations       were

conceptually    similar,   and     thus,   did   not   require   a   specific

unanimity instruction.      Id. at 639.

     Here,     the   alleged     conduct    involved     acts    that      were

conceptually similar.      There was sufficient evidence presented on

each incident for the jury to reasonably conclude that any of the

five alleged incidents constituted a course of conduct amounting

to stalking.    Defendant's appearances on multiple occasions at the

marital home, the children's school, and the home of C.G.'s sister

were all conceptually related acts of stalking.              The series of

acts alleged in this case, committed in September and October

2012, which the jury found constituted stalking under N.J.S.A.

2C:12-10, involved such similar and continuous behavior that no

special unanimity instruction was required.

     We also note that the trial judge explained to the jury at

least five times that the judgment "must be unanimous as to each

charge. . . . [which] means [that] all [jurors] must agree if the

[d]efendant is guilty or not guilty on each charge."                 Defendant

cannot demonstrate plain error here because the general unanimity

instruction, which the trial judge repeated and explained numerous

times during the jury charge, was sufficient.

                                     10                                A-3135-15T3
       We   do   agree   that   the   JOC   contains   an   error   requiring

correction.      It should reflect that defendant was convicted on

count fifteen, not count sixteen.           We, therefore, remand to the

trial court for the entry of an amended JOC.

       Affirm in part, remand solely for the entry of a corrected

JOC.   We do not retain jurisdiction.




                                      11                              A-3135-15T3
