                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1238-14T3

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                               July 29, 2016
v.                                           APPELLATE DIVISION

RYAN J. RINKER,

     Defendant-Appellant.
———————————————————————————————————————————————————

           Submitted February 29, 2016 – Decided July 29, 2016

           Before Judges Messano, Carroll and Sumners.

           On appeal from the Superior Court of New
           Jersey, Law Division, Middlesex County,
           Indictment No. 13-04-0577.

           Wronko & Loewen, attorneys for appellant
           (Gilbert G. Miller, of counsel and on the
           brief).

           Andrew    C.    Carey,   Middlesex    County
           Prosecutor, attorney for respondent (Joie D.
           Piderit, Assistant Prosecutor, of counsel
           and on the brief).

      The opinion of the court was delivered by

MESSANO, P.J.A.D.

      Following a jury trial, defendant Ryan Rinker was convicted

of   second-degree   unlawful   possession   of   a   handgun,    N.J.S.A.

2C:39-5(b) (count one), and third-degree theft of that handgun,
N.J.S.A. 2C:20-3(a) (count two).1            Defendant was sentenced on

count one to a five-year term of imprisonment with a three-year

period    of    parole    ineligibility   pursuant   to   the   Graves   Act,

N.J.S.A. 2C:43-6(c), and a concurrent three-year term on count

two.2

        Defendant raises the following points on appeal:

               POINT I

               THE TRIAL COURT ERRONEOUSLY ADMITTED THE
               TESTIMONY OF [DEFENDANT'S] FATHER AT THE CO-
               DEFENDANT'S TRIAL UNDER N.J.R.E. 804(b)(9),
               A HEARSAY EXCEPTION CODIFYING THE COMMON LAW
               DOCTRINE   OF   FORFEITURE  BY   WRONGDOING,
               THEREBY ADMITTING TESTIMONIAL HEARSAY WHICH
               VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHT
               TO CONFRONTATION.

               POINT II

               THE PROSECUTOR'S OFFICE DETECTIVES VIOLATED
               [DEFENDANT'S] STATE CONSTITUTIONAL RIGHT TO
               THE REPRESENTATION BY COUNSEL AT TRIAL BY
               APPROACHING AND SPEAKING TO HIM IN THE
               ABSENCE OF COUNSEL DURING THE COURSE OF THE
               TRIAL.




1
  Count three, charging defendant with third-degree violation of
regulatory provisions pertaining to firearms, N.J.S.A. 2C:39-
10(e), was dismissed prior to trial.        Co-defendant Raphael
Edwards was also charged in count one of the same indictment,
tried separately before defendant's trial and convicted.    In a
separate opinion, we reversed Edwards's conviction.     State v.
Edwards, No. A-2248-14 (App. Div. Apr. 20, 2016).
2
  Effective August 8, 2013, the mandatory minimum sentence was
increased to forty-two months. See Pub. L. 2013 c. 113 § 2.



                                      2                             A-1238-14T3
           POINT III

           NUMEROUS OF THE PROSECUTOR'S REMARKS ON
           SUMMATION WERE EGREGIOUSLY IMPROPER AND
           SINGULARLY    AND   CUMULATIVELY   DEPRIVED
           [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS TO
           DUE PROCESS AND A FAIR TRIAL. (Not raised
           below).

           POINT IV

           THE TRIAL COURT DEPRIVED [DEFENDANT] OF HIS
           CONSTITUTIONAL   RIGHT   TO    AN   EFFECTIVE
           OPPORTUNITY TO PRESENT HIS DEFENSE.

           POINT V

           IN   THE   EVENT   THE   COURT   AGREES   WITH
           [DEFENDANT'S] CONTENTION IN POINT I THAT THE
           COURT ERRONEOUSLY PERMITTED THE ADMISSION OF
           [DEFENDANT'S FATHER'S] TESTIMONY IN THE CO-
           DEFENDANT'S TRIAL, THE COURT AT A MINIMUM
           MUST ENTER A JUDGMENT OF ACQUITTAL REGARDING
           THE   CHARGE   THAT   [DEFENDANT]   UNLAWFULLY
           POSSESSED A HANDGUN.

We have considered these arguments in light of the record and

applicable legal standards.            We reverse and remand for a new

trial.

                                       I.

    The    State    contended       that       defendant    stole      his   father's

revolver   from    the     family   home       and   sold   it    to   co-defendant

Edwards.   On January 21, 2013, South Brunswick Police Sergeant

Ronald   Seaman    spoke    to   defendant's         father,     who   reported    his




                                           3                                 A-1238-14T3
revolver    was   stolen        from    his       residence.3              Later       that      day,

defendant    called       Seaman       from       a     substance             abuse     treatment

facility in Pennsylvania.                Defendant told Seaman he took the

loaded gun from his father's dresser and sold it to someone he

knew as "R.B." for drugs and money.                     Defendant said the sale was

arranged    through      text    messaging,            and    that       he    met    R.B.       on   a

street in South Brunswick where the exchange was made.

    Seaman        met     with         defendant             the        following          day        in

Pennsylvania,      in    the     company          of    defendant's                counselor      and

another detective.         After waiving his Miranda4 rights, defendant

consented to a search of his cellphone and also provided R.B.'s

phone   number.         Defendant       identified           Edwards          as    R.B.    from       a

photographic      array,    and        Seaman      had       defendant             unsuccessfully

attempt to contact Edwards by phone and text message.                                        Seaman

recorded defendant's statement, which was played for the jury.

Additionally,      the     parties       stipulated                to    records       from       the

cellphone provider of the sent and received phone calls and text

messages from defendant's phone for January 15 through January

31, 2013.      Seaman read from a summary of these records which

3
  We note that in overruling defense counsel's hearsay objection
to this testimony, the judge specifically determined the
statement was not being introduced for its truth.      The judge
later gave conforming limiting instructions to the jury.
4
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                              4                                            A-1238-14T3
allegedly documented the transaction surrounding the handgun.

Without    objection,   the     detective   was    permitted      to   read   and

interpret the texts sent from defendant's phone number, and the

texts received from Edwards.5

     State Police records revealed that defendant's father was

the registered owner of a Colt .38 caliber Detective Special

revolver, the make and model specified in the indictment, and

neither    defendant    nor    Edwards    were    ever   issued    permits     to

purchase    firearms.     Over     defendant's     objection,      Seaman     was

recalled on the second day of trial and permitted to identify a

picture of a Colt .38 caliber Detective Special revolver, albeit

not defendant's father's gun, which was never recovered.

     The State also called Philip Sassaman as a witness.                       He

knew defendant and Edwards and testified that he would "get

high" with Edwards.           Sassaman claimed that one or two years

earlier, while in a house with Edwards and another friend, he

saw Edwards remove a handgun from beneath his mattress.

5
  The statements attributed to Edwards were clearly hearsay. We
assume they may have been admitted pursuant to N.J.R.E.
803(b)(5), which excepts from the hearsay rule statements made
by co-conspirators in furtherance of a conspiracy, but the issue
was not addressed since there was no objection.       To qualify
under that exception, the statement "must have been made in
furtherance of the conspiracy," "must have been made during the
course of the conspiracy," and "there must be evidence,
independent of the hearsay, of the existence of the conspiracy
and defendant's relationship to it."    State v. Phelps, 96 N.J.
500, 509-10 (1984) (citations omitted).



                                      5                                 A-1238-14T3
     The State intended to call defendant's father as a witness,

but he had not responded to a subpoena mailed to his home.                       At

the close of the first day of trial, the judge rejected the

State's argument that Mr. Rinker had been properly served.                       In

the middle of the second trial day, after the State admitted

that defendant's father's whereabouts were unknown, the judge

apparently granted the prosecutor's request for, as the judge

himself later described, "an in camera hearing to determine the

efforts made by the [S]tate to secure the attendance of Edward

Rinker, material witness in this case, and . . . the progress of

that investigation."6

     On the record, the judge stated that during the in camera

hearing, one of the State's witnesses, Detective Sergeant Marc

Levy, "said something . . . that caused the prosecutor to change

course."      The   prosecutor      now     sought    to     admit    defendant's

father's    testimony    at    Edwards's     earlier       trial     pursuant    to

N.J.R.E.    804(b)(9),   the     forfeiture-by-wrongdoing            exception   to

the hearsay rule.        The judge conducted a hearing outside the

presence of the jury pursuant to N.J.R.E. 104(a).

     Levy    testified    that     in     preparing    for    Edwards's      trial

several months earlier, the State mailed defendant's father a


6
  Whatever testimony was taken during this "in camera" hearing
was not included in the appellate record.



                                        6                                 A-1238-14T3
subpoena at his home.              Shortly thereafter, Levy spoke with Mr.

Rinker regarding his upcoming testimony.                         According to Levy, Mr.

Rinker stated, "I know I have to come in, but I will not trial

prep, and I will not bury my son. . . . I will come in and

testify,     but    I    will     not    bury       my   son."      Defendant's        father

subsequently testified at Edwards's trial.

       A   few    weeks    before        defendant's        trial,      the    State    again

mailed a subpoena to defendant's father at the same address.

Levy testified that based on information obtained from other

agencies, Mr. Rinker had not left the country.

       Levy also testified that he spoke to Sassaman earlier that

morning.         Sassaman told Levy that "he received a phone call,

yesterday, from a friend of [defendant's], advising him not to

come today, that he didn't have to come.                         He was the only one."

When asked to clarify, Levy said, "I guess he meant that to be

he was the only one coming to testify."

       Detective        Rodney    Blount        testified        that   earlier     in     the

morning,     he     attempted       to     serve         defendant's      father    with     a

material     witness      warrant.          Blount        and    another      officer     were

greeted at the front door by defendant, who identified himself

by name.     The officers asked defendant if his father was home,

and defendant responded that he was not.                         When asked if he knew

when   his   father       would    return,          defendant     said:       "I   know    why




                                                7                                   A-1238-14T3
you're here.         He's not here.         He's not going to come."                    When

told   to   have     his   father    call       the   officers      if    he    returned,

defendant said:       "[d]on't waste your time, he's not coming."

       Detective Ryan Tighe testified that he called the Rinker

home   approximately       one   month      before     trial       and    spoke    to   Mr.

Rinker's wife, who acknowledged having received trial subpoenas

for her husband and herself.                Tighe detailed his other efforts

to   locate    Mr.    Rinker,    including        leaving      a    subpoena       at   his

residence the day before.

       The judge found the officers' testimony credible.                          He cited

Levy's      conversation      with     Sassaman         earlier          that     morning,

concluding, "presumably the inference [was] that [Sassaman] was

the only one that was really testifying against . . . defendant,

and the suggestion being, at least indirectly, that . . . he

should not testify in this case."7                The judge concluded "there is

circumstantial evidence that [defendant] has . . . maybe not


7
  No one identified defendant's "friend" who allegedly called
Sassaman.    At Edwards's trial, over which the same judge
presided, the State produced Sassaman and another individual as
witnesses, and both testified to having seen Edwards with a gun
on the same occasion.    But, neither Levy nor Sassaman claimed
this other person was the same "friend" who spoke to Sassaman
the night before his testimony.      We note that in rejecting
defense counsel's further argument, the judge listed the reasons
for his decision, stating that the State had made "many efforts
. . . to locate the witness who did testify in the trial of the
co-defendant." These efforts are not detailed in the record.




                                            8                                     A-1238-14T3
directly, but indirectly engaged in wrongdoing . . . that was

intended    to     procure     the   unavailability   of    his   father   as    a

witness in this case."

    In     further       argument,    defense    counsel     claimed   that     an

individual who was in court had text messaged Sassaman after

Levy testified, and Sassaman denied making the statement Levy

attributed to him.           Defense counsel did not seek any specific

relief,     such    as    an    adjournment     or   continuance.       Without

addressing the issue directly, the judge reiterated the basis

for his ruling, which included Levy's testimony, "that he was

told by Sassaman that he got a phone call not to . . . show up,

that this was . . . defendant's friend, and that he was the only

one . . . who would . . . possibly tie the gun, at least in the

defendant's mind to . . . the defendant."               The judge concluded,

"[t]he circumstantial evidence is not compelling, but                  . . . it

does preponderate in the [S]tate's favor."                 The judge permitted

the State to play an audio recording of Mr. Rinker's testimony

at Edwards's trial.

    Defendant's father had testified that he went to police

headquarters to report his handgun was missing on January 21,

2013.     He provided police with a range of dates when the gun was

taken because those were dates defendant had stayed in his home.

Mr. Rinker described his son's drug dependence and treatment




                                         9                              A-1238-14T3
problems.       He also testified as to the make and model of the

revolver,      and   the    fact   that    it    was   loaded.      During     cross-

examination, Mr. Rinker acknowledged reporting to police that he

believed defendant had stolen the gun.

      Defendant elected not to testify and called no witnesses.

The jury returned guilty verdicts on the two counts submitted.

                                          II.

                                           A.

      In Point I, defendant argues the State failed to prove that

he engaged in wrongdoing that was intended to, and did procure

his father's absence from trial, predicates for admission of

defendant's father's prior testimony under N.J.R.E. 804(b)(9),

the so-called forfeiture-by-wrongdoing exception to the hearsay

rule.   Defendant argues that admission of this hearsay violated

his   rights    under      the   Sixth    Amendment's     Confrontation      Clause.

The   State    argues      otherwise     and    also   contends,   alternatively,

that any error was harmless.               We agree with defendant that his

father's      testimony     was    inadmissible        hearsay,    and   the    State

should not have been permitted to introduce it at trial.

      We begin by noting that "'[a] trial court's evidentiary

rulings are entitled to deference absent a showing of an abuse

of discretion, i.e., there has been a clear error of judgment.'"

State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v.




                                           10                                A-1238-14T3
Harris, 209 N.J. 431, 439 (2012)).                            However, when the trial

court      fails       to    apply      the     proper      test       in     analyzing            the

admissibility          of    proffered       evidence,        our    review        is    de    novo.

See, e.g., State v. Lykes, 192 N.J. 519, 534 (2007) (applying de

novo review when trial judge failed to recognize evidence was

subject to N.J.R.E. 404(b) analysis).

      Defendant's           father's     testimony       from        Edwards's          trial      was

hearsay.           See      N.J.R.E.     801(c)        (defining        "hearsay"             as    "a

statement, other than one made by the declarant while testifying

at the trial . . . , offered in evidence to prove the truth of

the   matter       asserted").           Hearsay       is     generally        inadmissible,

except as provided by our Rules of Evidence or some other law.

N.J.R.E. 802.

      Exceptions            to   the    hearsay        rule     fall        into        two    broad

categories         —        those      not     dependent        on      the         declarant's

unavailability, see N.J.R.E. 803, and those dependent on the

declarant's unavailability.                   See N.J.R.E. 804.             While subsection

(a) of Rule 804 lists several circumstances by which a declarant

may   be    deemed       "unavailable,"         only    one     is    relevant          here.       A

declarant "is 'unavailable'" if he "is absent from the hearing

because of physical or mental illness or infirmity, or other

cause, and the proponent of the statement is unable by process




                                                11                                        A-1238-14T3
or other reasonable means to procure the declarant's attendance

at trial."   N.J.R.E. 804(a)(4).8

    In State v. Byrd, 198 N.J. 319 (2009), our Supreme Court

stated

         that the time ha[d] come for New Jersey to
         follow the course taken by many other
         jurisdictions and codify a forfeiture-by-
         wrongdoing exception to the hearsay rule.
         That rule w[ould] allow the admission of a
         witness's statement offered against a party
         who has engaged, directly or indirectly, in
         wrongdoing that was intended to, and did,
         procure the unavailability of the witness.

         [Id. at 324.]

As a result, N.J.R.E. 804(b)(9) (the Rule) was drafted by the

Court, approved at a Judicial Conference and, in accordance with

the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44, became

effective July 1, 2011.   See State v. Rose, 425 N.J. Super. 463,

466-67 (App. Div. 2012) (explaining process).

    The Rule provides that

         [s]ubject to Rule 807, the following [is]
         not excluded by the hearsay rule if the
         declarant is unavailable as a witness[:]

               . . . .

8
   This must be contrasted with those situations "when the
declarant's unavailability has been procured or wrongfully
caused by the proponent of declarant's statement for the purpose
of preventing declarant from attending or testifying." N.J.R.E.
804(a) (emphasis added). In those circumstances, the declarant
is not "unavailable" for purposes of N.J.R.E. 804's exceptions
to the hearsay rule.



                                12                       A-1238-14T3
              A statement offered against a party who has
              engaged,   directly   or   indirectly,   in
              wrongdoing that was intended to, and did,
              procure the unavailability of the declarant
              as a witness.

              [N.J.R.E. 804(b)(9).]

N.J.R.E. 807, in turn, specifically permits the judge to exclude

the evidence when "it appears that the proponent's intention to

offer   the    statement     in   evidence    was    not    made   known     to    the

adverse party at such time as to provide that party with a fair

opportunity     to    meet    it."     The    Rule     parallels      its    federal

counterpart, Federal Rule of Evidence 804(b)(6), which provides:

"[a] statement offered against a party that wrongfully caused --

or   acquiesced       in     wrongfully      causing       --   the   declarant's

unavailability as a witness, and did so intending that result."

See Byrd, supra, 198 N.J. at 337; see also Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E.

804(b)(9) (2016).

     The   Byrd      Court   clearly   prescribed      the      process     by   which

otherwise inadmissible hearsay could be admitted under the new

Rule.   Initially,

              [w]hen the State intends to introduce a
              witness's statement through the forfeiture-
              by-wrongdoing exception to the hearsay rule,
              it must make known its intention as soon as
              reasonably   practicable.  Ordinarily,   the
              State should advise defense counsel and the
              court as soon as it becomes aware that the
              defendant's wrongful conduct has made the



                                       13                                    A-1238-14T3
              witness unavailable and that it intends to
              offer the witness's out-of-court statement
              into evidence. The State must reveal the
              identity of the witness and the particulars
              of the statement that will be offered into
              evidence.

              [Byrd, supra, 198 N.J. at 350.]

The judge must conduct a hearing pursuant to N.J.R.E. 104(a)

outside the presence of the jury, "to determine whether the

witness's      out-of-court         statement     should      be   admitted     into

evidence      because   the    defendant       engaged   in    wrongful   conduct,

making the witness unavailable."                 Ibid. (emphasis added).           A

witness is considered unavailable if he cannot be located as a

result of defendant's wrongdoing.               Id. at 352 (emphasis added).

       At the Rule 104 hearing, the State bears the burden of

proof by a preponderance of the evidence and "must demonstrate

that    the    defendant      by    his   wrongful       conduct,    directly     or

indirectly,      caused       the    witness's     unavailability."           Ibid.

Lastly, the judge must determine that the proffered statement

bears "some indicia of reliability"; statements that meet the

requirements of N.J.R.E. 803(a)(1)(A) or (B), like defendant's

father's testimony in this case, are presumptively reliable. 9

Id. at 352-53.


9
  N.J.R.E. 803(a)(1)(A) and (B) except from the hearsay rule
prior inconsistent statements of witnesses "contained in a sound
recording or in a writing made or signed by the witness in
                                                     (continued)


                                          14                              A-1238-14T3
      The United States Supreme Court has held that the admission

of hearsay testimony pursuant to the forfeiture-by-wrongdoing

doctrine     does    not    offend   the    Sixth    Amendment's     Confrontation

Clause.     Id. at 339 (citing Crawford v. Washington, 541 U.S. 36,

62, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004)).                       "The

Sixth Amendment, however, requires that the wrongdoer have as

his     intent   'the      particular      purpose    of    making    the   witness

unavailable' to testify at trial."              Id. at 340 (quoting Giles v.

California, 554 U.S. 353, 366, 128 S. Ct. 2678, 2687, 171 L. Ed.

2d 488, 500 (2008)).             The Rule, "which reflects constitutional

precedents, only extinguishes a defendant's confrontation rights

to keep a hearsay statement from the jury when the defendant has

procured the unavailability of a witness through his wrongful

conduct."     State v. Cabbell, 207 N.J. 311, 335 (2011).

                                           B.

      In    Cabbell,       the   Court   addressed    the   State's    alternative

argument      that     a     recalcitrant,      testifying     witness's       prior

statement was admissible through retroactive application of the

Rule.      Id. at 333-34.        The Court rejected the argument, finding

among other things that the Rule was not adopted until five



(continued)
circumstances establishing its reliability or . . . given under
oath subject to the penalty of perjury at a trial or other
judicial . . . proceeding[.]"



                                           15                               A-1238-14T3
years after the trial, and the trial court never conducted a

Rule    104     hearing,       never     made    specific       findings        that     the

defendant had engaged in "'wrongdoing'" to silence the witness

and never found the witness was unavailable, since she was not.

Id. at 334.          Moreover, the Court concluded that the statement

was    admissible      under    another     exception      to       the   hearsay      rule,

N.J.R.E. 803(c)(5) (past recollection recorded); therefore "the

issue . . . [was] not about the admissibility of [the witness's]

statement."         Ibid.

       The    Court's       dicta   in     Cabbell   is    certainly          helpful     to

reiterate      the     predicates      necessary     for    admission         of   hearsay

pursuant to the Rule.               But, no reported decision has squarely

addressed the nature and extent of evidence necessary to satisfy

the Rule.

       We start by recognizing that "[w]e interpret an evidence

rule, as we would a statute, by first looking at its plain

language."          State ex rel. J.A., 195 N.J. 324, 338 (2008).                        The

language of the Rule clearly and unambiguously provides that the

proponent of the hearsay, in this case the State, must prove by

a preponderance of the evidence three specific predicates:                                 1)

that defendant "engaged, directly or indirectly, in wrongdoing";

2)    that    the    wrongdoing     "was    intended      to    .    .    .   procure    the

unavailability of the declarant as a witness"; and 3) that the




                                            16                                     A-1238-14T3
wrongdoing "did[] procure the unavailability of the declarant as

a witness." N.J.R.E. 804(b)(9).              As noted, in order to satisfy

the   Confrontation      Clause,    the    second      predicate      is   critical,

because the proponent must demonstrate that the adverse party's

wrongdoing was committed with a specific intent, i.e., making

the declarant unavailable for trial.                Giles, supra, 554 U.S. at

366, 128 S. Ct. at 2687, 171 L. Ed. 2d at 500.

      The Federal Rules of Evidence have been the source of many,

although not all, of our Rules of Evidence.                    See, e.g., State v.

Harris, 209 N.J. 431, 442 (2012) (noting the 1993 revisions to

our rules "adopted the numbering used in the Federal Rules of

Evidence   and   followed       those   rules     in    many    instances").        We

therefore frequently consider as instructive federal precedent

construing   analogous      Federal       Rules   of    Evidence.          Parker   v.

Poole, 440 N.J. Super. 7, 19 (App. Div.), certif. denied, 223

N.J. 163 (2015).

      Although   our     Rule   parallels     its      federal      counterpart,    it

requires the proponent of the hearsay to prove that the adverse

party "engaged, directly or indirectly, in wrongdoing," while

the federal rule only requires that the proponent demonstrate

the   adverse    party    "wrongfully        caused      --    or    acquiesced      in

wrongfully causing" the witness's unavailability.                       Fed. R. of




                                        17                                   A-1238-14T3
Ev. 804(b)(6) (emphasis added).10             For our purposes, we consider

the federal precedent without regard to this distinction.

       The proponent of hearsay under the federal rule must also

prove three predicates prior to its admission.                        "To admit a

hearsay   statement    under    Rule    804(b)(6),         the    government     must

demonstrate: '(1) that the defendant engaged or acquiesced in

wrongdoing, (2) that the wrongdoing was intended to procure the

declarant's    unavailability,        and    (3)    that   the     wrongdoing      did

procure the unavailability.'"               United States v. Jonassen, 759

F.3d   653,   661-62   (7th    Cir.    2014)       (quoting      United   States    v.

Scott, 284 F.3d 758, 762 (7th Cir.), cert. denied, 537 U.S.

1031, 123 S. Ct. 582, 154 L. Ed. 2d 448 (2002)), cert. denied,

__ U.S. __, 136 S. Ct. 152, 193 L. Ed. 2d 114 (2015); see also

United States v. Gray, 405 F.3d 227, 241 (D.C. Cir.) (citing




10
  At least one federal court of appeals has held that in order
to satisfy the Confrontation Clause, the rule's use of the word
"acquiescence" requires proof of "active, culpable conduct, as
Giles requires," and not "simple acquiescence in another's
decision not to appear or to cause someone else not to appear."
Carlson v. AG of Cal., 791 F.3d. 1003, 1011 (9th Cir. 2015); but
see, United States v. Dinkins, 691 F.3d 358, 385 (4th Cir. 2012)
("The term 'acquiesce,' within the meaning of Rule 804(b)(6),
encompasses wrongdoing that, while not directly caused by a
defendant co-conspirator, is nevertheless attributable to that
defendant   because  he   accepted  or   tacitly  approved   the
wrongdoing."), cert. denied, __ U.S. __, 133 S. Ct. 1278, 185 L.
Ed. 2d 214 (2013)).




                                       18                                   A-1238-14T3
Scott, supra, 284 F.3d at 762) (same), cert. denied, 546 U.S.

912, 126 S. Ct. 275, 163 L. Ed. 2d 245 (2005).

       Federal courts have admitted hearsay under the federal rule

without direct proof of a defendant's wrongful conduct.                                 For

example, in United States v. Johnson, 767 F.3d 815, 818 (9th

Cir.   2014),    the    defendant     was     tried    for    the    robbery       of   an

armored truck and the murder of one of its guards.                         A government

informant     overheard       the    defendant        and    other    gang      members

planning the heist, but, shortly before trial, the government

could no longer locate her.            Ibid.      At a pretrial hearing, the

government produced evidence that the witness had received death

threats from members of the gang, the defendant's mother had

contacted the witness's live-in boyfriend looking for her, the

defendant had informed other gang members that the witness was

set to testify against him and the threats began the day that

the defendant's attorney visited him in prison and likely first

disclosed the government's witness list.                    Id. at 818-19.         Prison

guards explained how, although in custody, the defendant could

communicate with someone outside the institution.                     Id. at 819.

       In affirming the district court's decision to admit the

witness's hearsay statements under Rule 804(b)(6), the court of

appeals     concluded    "the       evidence    tended       to     show    that    [the

defendant]      alone   had    the    means,    motive,       and    opportunity        to




                                         19                                    A-1238-14T3
threaten [the witness], and did not show anyone else did."                              Id.

at 823.     See also Jonassen, supra, 759 F.3d at 662 (noting that

"[t]he evidentiary foundation for admitting hearsay under Rule

804(b)(6) will almost always be circumstantial").

       The Johnson court distinguished an earlier case from the

Second Circuit, Perkins v. Herbert, 596 F.3d 161 (2d Cir.),

cert. denied, 562 U.S. 954, 131 S. Ct. 318, 178 L. Ed. 2d 253

(2010),     and   the     factual     distinctions         are     relevant       to    our

consideration in this case.               In Perkins, a habeas corpus case,

the court affirmed the district court's conclusions that the

prosecution's proofs for admission of the hearsay statements of

a threatened robbery victim who refused to testify at trial were

insufficient      and     admission       of     the    statements      violated        the

Confrontation Clause.         Id. at 173.              The court found that while

the prosecution "demonstrated [the defendant] had a motive to

procure [the witness's] silence," it failed to demonstrate that

the defendant "took any steps to orchestrate the intimidation of

[the witness]," nor did it demonstrate he "had the opportunity

to do so," since he was in custody the entire time and prison

logs   showed     no    contact     with       either    the     witness     or    a    man

defendant     identified     as     his        accomplice,       and   who    allegedly

conveyed the threats and obviously had his own motive to silence

the witness.      Ibid.




                                           20                                     A-1238-14T3
      Returning to this case, the judge was certainly permitted

to   consider   circumstantial    evidence   of   defendant's     direct   or

indirect "wrongdoing."        However, the State failed to prove by a

preponderance of the evidence that defendant "engaged, directly

or indirectly, in wrongdoing" that was intended to and did cause

Mr. Rinker's unavailability.

      Arguably, the only proof that defendant "engaged, directly

or indirectly, in wrongdoing," was the alleged phone call an

unidentified    friend   of   defendant   made    to   Sassaman   the   night

before the witness testified.        Sassaman, who actually testified

in this case, was never asked about it, nor was he produced at

the Rule 104 hearing.         When asked to clarify what Sassaman's

hearsay statement meant to him, Levy surmised, "I guess he meant

that to be he was the only one coming to testify."                Moreover,

defense counsel brought to the judge's attention a claim, albeit

never fully fleshed out on the record and also hearsay, that

Sassaman denied making the statement to Levy.11

      Assuming arguendo that this evidence was sufficient to show

defendant engaged in wrongdoing, it was inadequate to prove that

11
   We acknowledge that, in hearings held pursuant to N.J.R.E.
104(a) regarding the admissibility of evidence, the Rules of
Evidence do not apply. Ibid. Therefore, the judge's crediting
of Levy's testimony regarding Sassaman's hearsay statements was
seemingly appropriate.    The Byrd Court did not express any
opinion to the contrary, and, since, the issue is not before us,
we avoid directly addressing it.



                                    21                              A-1238-14T3
the     wrongdoing      "was     intended        to,     and     did,      procure       the

unavailability" of Mr. Rinker as a witness.                      N.J.R.E. 804(b)(9).

Months      before     defendant's        trial,        Mr.      Rinker       reluctantly

testified     at     Edwards's    trial     and       indicated     that      he   had    no

intention to "bury his son."                    It is difficult to imagine a

clearer indication that Mr. Rinker was not "made unavailable by

. . . defendant's wrongdoing," if indeed there was any.                                 Byrd,

supra, 198 N.J. at 353.           More importantly, there was no evidence

that defendant engaged in any wrongdoing designed to make his

father unavailable as a witness.                 In short, the State failed to

prove    by    a     preponderance     of        the     evidence       the     necessary

predicates      for     admission     of        Mr.     Rinker's     testimony          from

Edwards's trial as evidence in defendant's case pursuant to the

Rule.

      The     more    difficult     issue       is     whether    admission        of    the

evidence      requires    reversal.             The     State     argues      there      was

substantial        evidence    otherwise    establishing           defendant's        guilt

beyond a reasonable doubt.            It cites defendant's admissions and

recorded statement, as well as the text messages that describe

the negotiations between defendant and Edwards for the sale of

the gun.

      Defendant contends that without Mr. Rinker's testimony, the

evidence      was     insufficient     to        prove     either       charge.           In




                                           22                                      A-1238-14T3
particular,    defendant     argues        that    there   was    insufficient

corroboration of his statements, and the balance of the evidence

failed to prove he stole or possessed the particular handgun

identified in the indictment.              Alternatively, defendant argues

that the State's evidence was insufficient as a matter of law to

prove his guilt on count one beyond a reasonable doubt, because

there was no evidence proving the gun was a handgun as defined

by N.J.S.A. 2C:39-1(f) and (k), or that it was Mr. Rinker's

handgun.

    We     reject    defendant's      arguments       regarding    the        legal

sufficiency    of    the   balance    of     the    evidence.     As     to     the

inadequate corroboration of defendant's admissions, our case law

clearly holds that "[a] trial court should properly refuse to

grant a judgment of acquittal on these grounds when the State

provides 'any legal evidence, apart from the confession of facts

and circumstances, from which the jury might draw an inference

that the confession is trustworthy.'"                State v. Reddish, 181

N.J. 553, 617 (2004) (quoting State v. Lucas, 30 N.J. 37, 62

(1959)).     Here, the State introduced the text messages sent by

and between defendant and Edwards.                 To the extent Edwards's

statements    were    independently        admissible,     they    corroborate

defendant's    admission    to   both      taking    his   father's    gun      and

selling it for drugs and money.            It could reasonably be inferred




                                      23                                 A-1238-14T3
that     defendant      did    not     have     his     father's      permission.

Additionally, official records established that a "Mr. Edward

Rinker" was the owner of a Colt .38 caliber Detective Special

revolver, and that neither defendant nor Edwards had applied for

a gun license.       Defendant's admission that he believed the gun

was "loaded" was sufficient to sustain the State's burden of

proof as to whether the gun was a "handgun" as defined by the

Criminal Code.

       Nevertheless, we must consider the nature of the erroneous

evidence ruling and its effect upon defendant's right to a fair

trial.    Was the error, as the State contends, harmless?

       We have said that "[t]o state the harmless error test, at

least with respect to constitutional errors, is easier than to

apply it."      State v. Pillar, 359 N.J. Super. 249, 276 (App.

Div.), certif. denied, 177 N.J. 572 (2003).                  In a case involving

a Confrontation Clause violation, the Court said, "where the

trial court commits a constitutional error, that error is to be

considered 'a fatal error, mandating a new trial, unless we are

"able    to   declare    a    belief    that    it    was     harmless    beyond    a

reasonable doubt."'" State v. Slaughter, 219 N.J. 104, 118-19

(2014)    (quoting   Cabbell,        supra,    207    N.J.    at   338)   (in   turn

quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,

828, 17 L. Ed. 2d 705, 710-11 (1967)).                       "'[T]he question is




                                        24                                 A-1238-14T3
whether   there      is   a   reasonable    possibility    that    the   [error]

complained of might have contributed to the conviction.'"                      Id.

at 119 (alteration in original) (emphasis added) (quoting State

v. Dennis, 185 N.J. 300, 302 (2005)).

      The State's argument, i.e., without the offending evidence

a jury would have still reached the same verdict because of the

balance   of   the    evidence,    misstates    the    standard    guiding     our

review.    In Pillar, our colleague, Judge Weissbard, explained

the    constitutional         underpinnings      for      the     "contribution

analysis":

           Consistent with the jury-trial guarantee,
           the question it instructs the reviewing
           court to consider is not what effect the
           constitutional error might generally be
           expected to have upon a reasonable jury, but
           rather what effect it had upon the guilty
           verdict in the case at hand. Harmless-error
           review looks, we have said, to the basis on
           which   "the   jury   actually  rested   its
           verdict." The inquiry, in other words, is
           not whether, in a trial that occurred
           without the error, a guilty verdict would
           surely have been rendered, but whether the
           guilty verdict actually rendered in this
           trial was surely unattributable to the
           error.   That   must  be   so,  because   to
           hypothesize a guilty verdict that was never
           in fact rendered — no matter how inescapable
           the findings to support that verdict might
           be — would violate the jury - trial
           guarantee.

           [Pillar, supra, 359 N.J. Super. at 277-78
           (quoting Sullivan v. Louisiana, 508 U.S.
           275, 279-80, 113 S. Ct. 2078, 2081-82, 124
           L. Ed. 2d 182, 189 (1993)).]



                                       25                                A-1238-14T3
We conclude that the admission of Mr. Rinker's testimony from

co-defendant      Edwards's         trial        was    not     harmless     beyond       a

reasonable doubt because there is a reasonable possibility that

it contributed to the guilty verdicts in defendant's case.

     This was the testimony of defendant's own father.                            In her

brief summation, the assistant prosecutor stated Mr. Rinker was

not produced because the State "can't find him," and thereafter

referred to his testimony "under oath" three times.                        She recited

the essential points regarding the theft of the gun, and Mr.

Rinker's belief that defendant had stolen it, noting "[t]hose

words   came    out     of   Edward    Rinker's         own    mouth."      Later,     she

reiterated the testimony as it supported the elements of the

theft   count.         Finally,     she    cited       Mr.    Rinker's    testimony     as

corroborating         defendant's     own    statement.           In     light    of   the

significance of Mr. Rinker's testimony to the elements of both

crimes,    it    is    clear   to     us    that       the    inadmissible       evidence

contributed to the verdict.                We are, therefore, constrained to

reverse defendant's conviction and remand the matter for a new

trial.12




12
  There is no authority supporting defendant's argument that he
is entitled to a judgment of acquittal because the evidence was
inadmissible. See State v. Gibson, 219 N.J. 227 (2014).



                                            26                                   A-1238-14T3
    [At the court's direction, Section III of
    its opinion, which concerns discrete issues,
    has been redacted from the published opinion
    because it does not meet the criteria set by
    R. 1:36-2(d) for publication. The published
    part of the opinion continues as follows.]


Reversed and remanded for a new trial.




                          27                       A-1238-14T3
