                        NOT FOR PUBLICATION WITHOUT THE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-4993-14T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WALLACE L. PARRISH, a/k/a
WALI, WAWA and QUASHAWN T. BETHEA,

     Defendant-Appellant.
____________________________________

              Submitted September 12, 2017 – Decided July 24, 2018

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              11-04-0373.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Frank M. Gennaro, Designated
              Counsel, on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Milton S. Leibowitz,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant    Wallace   L.    Parrish   appeals   his    June    19,       2015

judgment of conviction for felony murder, robbery, conspiracy to

commit robbery, and unlawful possession of a handgun.               We affirm.

                                     I.

     The trial record includes the following facts.              On September

28, 2010, at 4:02 a.m., Jimmy Morel, working as a dispatcher and

driver   for   United   Taxi,    received   a   blocked   call   from      a    man

requesting a cab at an address on West Sixth Street in Plainfield.1

The call came from a cellphone number later determined to be

assigned to defendant's cousin K.M., who testified he lent the

cellphone to defendant.

     Morel dispatched one of his taxi drivers, Jose Gomez, to pick

up the man.    Gomez arrived at the location for the fare, and saw

a man.   As the man started to get into the back seat of Gomez's

taxi, the man pulled out what Gomez believed to be a silver or

white handgun.

     Gomez sped off and called 911 at approximately 4:06 a.m. to

report an attempted armed robbery by the man.             Plainfield Officer

Romeo Simeon searched the area, but was unable to locate anyone

matching the man's description.



1
  A blocked call is one in which the caller first dials *67 to
block the recipient's caller ID from revealing the caller's phone
number.

                                      2                                 A-4993-14T4
     At 5:35 a.m., Morel received a call from a man requesting a

cab on Spooner Avenue in Plainfield.        Later investigation showed

that call came from a telephone used by co-defendant Johnathan

Morgan.

     Morel dispatched another of his drivers, Isidro Leonardo, to

pick up that fare.      Leonardo's practice was to call Morel right

away to say whether he picked up a fare, but Morel did not hear

from Leonardo.   Morel and Gomez called Leonardo several times, but

no one answered.       Eventually, Morel sent Gomez, who was in the

area, to check on Leonardo.         Gomez arrived on Spooner Avenue at

the same time as Officer Simeon, who had been dispatched at 5:51

a.m. to respond to a call about a vehicle accident.

     Officer Simeon saw Leonardo's taxi cab pinned against a parked

vehicle.     The taxi was still in gear and Leonardo was in the

driver's seat with his head against the headrest.        Officer Simeon

opened the door, but Leonardo did not respond and was making

gurgling sounds.   Simeon discovered Leonardo had a gunshot wound

to the back of his head.

     Leonardo was taken to the hospital where he later died.            The

autopsy revealed the presence of gunpowder residue on Leonardo's

skull, indicating the gun was fired at close range.

     Union    County    Sheriff's     Officer   Adrian   Gardner     found

defendant's left palm print on the rear side of the partition

                                     3                             A-4993-14T4
separating the front and rear seats.      Defendant was questioned by

a detective.      Defendant initially denied being in a taxi on

September   28,   and   later   claimed   he   got   a   taxi   elsewhere.

Ultimately, defendant offered a third version.2

     Defendant admitted his cellphone was used to call United Taxi

for the fare Gomez was dispatched to pick up.            Defendant denied

making any calls from the cellphone that night.             However, the

phone   records   showed   that   the   cellphone    was   used   to   call

defendant's girlfriend, followed immediately by blocked calls to

Flash Taxi at 3:58 a.m., 3:59 a.m., 4:00 a.m., and 4:01 a.m., and

then the call to United Taxi at 4:02 a.m.            At 6:53 a.m., the

cellphone was again used to call defendant's girlfriend.3

     Defendant denied any involvement in the attempted robbery of

Gomez or Leonardo.      Defendant admitted Morgan "was talking about

trying to rob people . . . , everybody was, but that wasn't the

main objective," which was to "jump somebody in the projects."



2
  We have only the detective's testimony about defendant's
statements.   Defendant's video statements were played for the
jury, but their content was not transcribed by the court reporter
and defendant has not provided us with the videos and transcripts
introduced as exhibits.
3
 Morgan's cellphone had similarly been used to make blocked calls
to Flash Taxi at 4:29 a.m., 5:30 a.m., 5:31 a.m., and 5:34 a.m.,
to United Taxi at 4:31 a.m. and 4:40 a.m., to Caribe Taxi at 4:48
a.m., and to United Taxi at 4:50 a.m. before the fatal 5:35 a.m.
call to United Taxi.

                                   4                               A-4993-14T4
Defendant said he, Morgan, and a man known as "Fuzz" went onto the

streets but when they could not find anyone to jump, they abandoned

the plan.    However, defendant's cousin A.L., known as Fuzz,

testified he was not with defendant and Morgan on September 28.

     Defendant stated the three men made several calls to taxi cab

companies, and that Leonardo's cab finally answered their call.

Defendant claimed that an argument over payment erupted between

the three men, that Leonardo stopped the cab on Spooner Avenue and

told the men to get out because they did not have the money, that

he and Fuzz exited the cab, and that defendant then heard a

gunshot.

     Defendant admitted he knew Morgan often carried a silver

revolver, but asserted he did not know Morgan was armed at the

time.   Defendant claimed he had never used a gun before, and that

he did not take part in Leonardo's murder.

     The grand jury indicted defendant and Morgan with: count

one - first-degree purposeful or knowing murder, N.J.S.A. 2C:11-

3(a)(1) or (2); count two - first-degree armed robbery, N.J.S.A.

2C:15-1; count three - first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3); count four - second-degree conspiracy to commit robbery,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; count five - second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and count

six - second-degree possession of a firearm for an unlawful

                                 5                          A-4993-14T4
purpose, N.J.S.A. 2C:39-4(a)(1).        Defendant was tried by a jury

between March 19 and April 15, 2013.4

     The jury acquitted defendant on count one, but found defendant

guilty   on   the   remaining   counts,   specifically   finding   that

defendant conspired to rob Leonardo, Gomez, and other cab drivers.

The trial court sentenced defendant to thirty years in prison with

a thirty-year period of parole ineligibility on count three, and

a concurrent seven years in prison on count four, with an 85%

period of parole ineligibility under the No Early Release Act,

N.J.S.A. 2C:43-7.2.     The remaining counts merged for sentencing

purposes.

     Defendant appeals, arguing:

            POINT ONE - THE TRIAL COURT WRONGFULLY
            EXCLUDED EVIDENCE WHICH REFUTED DEFENDANT'S
            MOTIVE TO ENGAGE IN ROBBERY.

            POINT TWO - THE TRIAL COURT WRONGFULLY DENIED
            DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

            POINT THREE - THE JURY INSTRUCTION ON FELONY
            MURDER WAS DEFICIENT.

                                  II.

     Defendant first argues that the trial court erred in refusing

to allow him to admit testimony from his cousin K.M. about a



4
  Morgan were tried separately and convicted of felony murder as
a non-slayer participant and robbery. We affirm his judgment of
conviction in a separate opinion.

                                   6                           A-4993-14T4
lawsuit.     We must hew to our standard of review.             "The trial

court's evidentiary rulings 'are reviewed under the abuse of

discretion standard because, from its genesis, the decision to

admit or exclude evidence is one firmly entrusted to the trial

court's discretion.'"       State v. Prall, 231 N.J. 567, 580 (2018)

(citation omitted).       "[C]onsiderable latitude is afforded a trial

court   in   determining    whether   to   admit   evidence."    State     v.

Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted).          "In light

of the broad discretion afforded to trial judges, an appellate

court evaluates a trial court's evidentiary determinations with

substantial deference."       State v. Cole, 229 N.J. 430, 449 (2017).

"A reviewing court must not 'substitute its own judgment for that

of the trial court' unless there was a 'clear error in judgment'

— a ruling 'so wide of the mark that a manifest denial of justice

resulted.'"       State v. Scott, 229 N.J. 469, 479 (2017) (citation

omitted).

     The State called K.M. to testify about defendant's use of his

cellphone, and defendant's attempts to see him after September 28.

On cross-examination, defendant's trial counsel elicited that

defendant gave K.M. $6 on October 1.         Trial counsel asked:

             Q.   And when you saw Mr. Parrish, — didn't
             Mr. Parrish give you money?

             A.    Yes.


                                      7                             A-4993-14T4
            Q.   He gave you money on October 1st; right?

            A.   Yes.

            Q.   He gave you like $6; right?

            A.   $6, yes.

            Q.   And it wasn't unusual for Mr. Parrish to
            have money; am I correct?

            A.   No.

            Q.   Because Mr. Parrish had just got a big
            lawsuit where he got a lot of money?

      The prosecutor objected.         The trial court told the jury it

was "striking that portion of [trial counsel's] question which

encompassed Mr. Parrish receiving money in a lawsuit and the answer

that may have been given to that question about the lawsuit," and

instructed the jurors not to consider the question or any answer

in their deliberations.

      Defendant argues he was trying to show he had money and thus

had   no   financial    motive   for   committing   robbery.   Generally,

"evidence of a defendant's financial state should not be admitted

nor commented on."       State v. Martini, 131 N.J. 176, 266 (1993).

Thus, as the prosecutor noted, the State may not introduce evidence

solely to establish "that defendant had no apparent means of income

and hence was likely to commit a crime for dollar gain."            Ibid.

(quoting State v. Mathis, 47 N.J. 455, 472 (1966)); see State v.

Patterson, 435 N.J. Super. 498, 510 (App. Div. 2014) (same).

                                       8                          A-4993-14T4
     As our Supreme Court explained in Mathis: "Undoubtedly a lack

of money is logically connected with a crime involving financial

gain.    The trouble is that it would prove too much against too

many."   47 N.J. at 471.   The Court followed Wigmore's treatise:

           The lack of money by A might be relevant enough
           to show the probability of A's desiring to
           commit a crime in order to obtain money. But
           the practical result of such a doctrine would
           be to put a poor person under so much unfair
           suspicion and at such a relative disadvantage
           that for reasons of fairness this argument has
           seldom been countenanced as evidence of the
           graver crimes, particularly of violence.

           [Id. at 471-72 (quoting 2 Wigmore on Evidence
           § 392 at 341 (3d ed. 1940)).]

     However, Wigmore took the opposite position on whether a

defendant could offer evidence he had money: "On the other hand,

the fact that a person was in possession of money tends to negative

his desire to obtain it by crime or by borrowing, and is always

admissible, the foregoing objection not being here applicable."

2 Wigmore on Evidence § 392 at 343.

     Nonetheless, in Wilbely, we rejected Wigmore's position, and

"h[e]ld that evidence of the possession of money is not admissible

to disprove intent."   State v. Wilbely, 122 N.J. Super. 463, 466-

67 (App. Div. 1973), rev'd on other grounds, 63 N.J. 420 (1973).

We felt that just "as evidence of poverty might well 'prove too

much against too many,' evidence of affluence might well result


                                 9                           A-4993-14T4
in a proving of too little against too few, and this to the very

real detriment and prejudice of fair law enforcement."          Id. at 465

(quoting Mathis, 47 N.J. at 471).

      In Wilbely, we conceded there was "some relevance with respect

to both poverty and affluence."         Ibid.   We assumed that just as

"some poor steal for the sole purpose of rectifying that economic

condition," some "scoundrels exist whose larcenous propensities

are restrained solely because affluence overcomes a running of the

risks involved."     Ibid.      On the other hand, we found "equally

evident" that just as there are "the honest poor," there also are

"the thieving wealthy."      Id. at 466.

      Given the questionable probative value of such evidence,

Wilbely viewed the issue at the very least required

           weighing the utility of the relevant aspects
           of the evidence, either of affluence or
           poverty,     against      reasons     opposing
           admissibility,   principally    such  as   the
           likelihood of improper inferences being drawn,
           the opportunity for personal prejudices to be
           manifested, or, most significantly, the
           expansion of the fact issues to be tried, and
           this into an area where exculpating perjury
           might well be hard to disprove.

           [Id. at 466.]

      Applying that "weighing process" to Wilbely's "offer to prove

his financial resources in order to disprove his intent to steal,"

we   "conclude[d]   that   in   addition   to   the   reasons   bespeaking


                                   10                              A-4993-14T4
nonadmissibility mentioned above, evidence of affluence, while

possibly relevant to negate an intent to steal, should not be

admissible on account of the likelihood of the involvement of

collateral concerns."    Id. at 464, 466.   For example,

            if a defendant is allowed to prove equity in
            improved real estate, how far can the State
            go to show that there is little cash to meet
            the mortgage payments to protect that equity?
            May defendant then demonstrate accounts
            receivable and the liquidity of his debtors
            to refute the prosecutor's implications? And
            so on.

            [Id. at 466-67.]

     We concluded in Wilbely "that even if evidence of affluence

were otherwise admissible, it should be excluded on account of

unfair prejudice to the State, whose rights and those of the

people it represents are also entitled to protection, in the

same manner as unfair prejudice to the defendant produced the

Mathis exclusion."    Id. at 467.

     Wilbely's principle that "a court may consider the prejudice

to the State as well as to the defendant in evaluating whether to

exclude evidence" has been adopted by commentators and courts.

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5

on N.J.R.E. 403 (2018) (citing Wilbely); see, e.g., State v.

Scherzer, 301 N.J. Super. 363, 468 (App. Div. 1997)         (citing

Wilbely).   N.J.R.E. 403 provides that at the behest of any party,


                                 11                         A-4993-14T4
"relevant evidence may be excluded if its probative value is

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

confusion of issues, or misleading the jury or (b) undue delay,

waste of time, or needless presentation of cumulative evidence."

       Applying   Wilbely,   we   find   no   abuse       of   discretion     here.

Defendant wanted his cousin to testify that defendant "got a lot

of money" in a lawsuit, without proffering what and how his cousin

might know.       The cousin's proposed testimony posed issues of

hearsay and an "expansion of the fact issues to be tried . . .

into an area where exculpating perjury might well be hard to

disprove."     Id. at 466.   It also raised collateral issues of how

much defendant had received, how much he had spent or dispensed

to others (e.g., civil and criminal counsel, medical providers,

relatives, and creditors), how great his expenses were, and so on.

Id. at 467; see State v. Medina, 201 N.J. Super. 565, 581 (App.

Div. 1985) (applying Wilbely and excluding evidence "because of

the collateral questions it could raise").

       Thus, defendant's proposed evidence opened new issues that

could entail undue delay to allow the State to investigate and to

present counter-testimony, waste of time on collateral issues, and

confusion of the issues and of the jury.                   N.J.R.E. 403.         Its

probative value was limited because those who have money may seek

more   money   through   criminal    activities       –    as   illustrated        by

                                    12                                      A-4993-14T4
defendant's admission that he had been discussing robbing someone

with Morgan.    Wilbely, 122 N.J. Super. at 466.     That limited value

was substantially outweighed by the concerns above as well as the

risk of improper inferences, personal prejudices (e.g., against

litigious plaintiffs), and undue prejudice to the State which was

barred from making the mirror-image argument that defendant sought

to rob because he needed money.       Ibid.; see N.J.R.E. 403.

     Defendant cites opinions in which we have upheld the State's

introduction of counter-evidence when defendants contended they

had money and therefore no motive to commit the charged crimes.

E.g., Patterson, 435 N.J. Super. at 510-11; State v. Downey, 237

N.J. Super. 4, 16 (App. Div. 1989); State v. Farr, 183 N.J. Super.

463, 469 (App. Div. 1982).   However, those defense appeals did not

address whether the defendants' presentation of such evidence was

proper.    Thus, our opinions did not reach or resolve the issue we

squarely decided in Wilbely.

     Defendant    notes   that   "[t]he    Federal     and    New    Jersey

Constitutions    guarantee   criminal     defendants     'a    meaningful

opportunity to present a complete defense.'"      State v. Garron, 177

N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690

(1986)).   Nonetheless, "the introduction of [defense] evidence is

. . . subject to 'the application of evidentiary rules that

themselves serve the interests of fairness and reliability.'"

                                 13                                 A-4993-14T4
State v. Rosales, 202 N.J. 549, 562 (2010) (quoting Crane, 476

U.S. at 690).

          While the Constitution thus prohibits the
          exclusion of defense evidence under rules that
          serve no legitimate purpose or that are
          disproportionate to the ends that they are
          asserted to promote, well-established rules of
          evidence permit trial judges to exclude
          [defense] evidence if its probative value is
          outweighed by certain other factors such as
          unfair prejudice, confusion of the issues, or
          potential to mislead the jury.

          [Holmes v. South Carolina, 547 U.S. 319, 326-
          27 (2006) (citing, e.g., Fed. R. Evid. 403).]

     N.J.R.E. 403 is just such a well-established rule of evidence.

It serves a legitimate purpose, and its balancing test ensures

that its application is not disproportionate.   Thus, "trial courts

must still determine that the probative value of [defense] evidence

is not substantially outweighed by any of the Rule 403 factors."

State v. Weaver, 219 N.J. 131, 151 (2014); see State v. Perry, 225

N.J. 222, 237 (2016) (citing N.J.R.E. 403).

     Here, the limited probative value of any evidence that the

question could elicit from defendant's cousin was "substantially

outweighed" by the risk of undue prejudice, confusion, undue delay,

and waste of time.   N.J.R.E. 403.    By contrast, only "evidence

relevant to the defense that has probative value outweighing its

prejudicial effect must be placed before the trier of fact" under

the New Jersey Constitution.   Garron, 177 N.J. at 172.    "Stated a

                               14                            A-4993-14T4
different way, if evidence is relevant and necessary to a fair

determination of the issues, the admission of the evidence is

constitutionally compelled."    Id. at 171.     Because the probative

value of the cousin's evidence did not outweigh its prejudicial

effect, it was not necessary to the fair determination of the

issues.    See, e.g., Perry, 225 N.J. at 243-45.

     The United States Supreme Court has "[o]nly rarely . . . held

that the right to present a complete defense was violated by the

exclusion of defense evidence under a state rule of evidence."

Nevada v. Jackson, 569 U.S. 505, 509 (2013).       This is not one of

those rare cases.

     In any event, we must also "determine whether any error found

is harmless."    Prall, 231 N.J. at 581.      "Any error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result."    R. 2:10-2.   The cousin's evidence that defendant "had

no financial motive to participate in a robbery" "was of relatively

insignificant probative weight."      State v. Smith, 32 N.J. 501, 526

(1960).    Moreover, the cousin's testimony that "it wasn't unusual

for [defendant] to have money," and that defendant had given him

$6, "remained before the jury."        See ibid.   Trial counsel used

that evidence, and defendant's statement to police that he could



                                 15                            A-4993-14T4
pay his share of the cab fare, to argue in summation that "[w]e

know [defendant's] got money."

     Thus, "[t]he action of the trial court in this respect did

not amount to reversible error."          Id. at 525-26 (finding any error

in   excluding   other     "evidence      of   [a   defendant's]     financial

condition   at   the   time   of   the    crime"    was   harmless   where   the

defendant was able to elicit he had a $44 per week job and a bank

account).    This was not a situation "where there was no other

available evidence to demonstrate particular defense issues."

Scherzer, 301 N.J. Super. at 414.

                                     III.

     Defendant next claims the trial court erred in denying his

motion for acquittal on the count charging conspiracy to commit

robbery.    Appellate courts "review the record de novo in assessing

whether the State presented sufficient evidence to defeat an

acquittal motion."       State v. Dekowski, 218 N.J. 596, 608 (2014).

The "well-established standard for determining the sufficiency of

the evidence," State v. Wilder, 193 N.J. 398, 406 (2008), was set

forth in State v. Reyes, 50 N.J. 454, 459 (1967):

            whether, viewing the State's evidence in its
            entirety,   be   that   evidence   direct   or
            circumstantial, and giving the State the
            benefit of all its favorable testimony as well
            as all of the favorable inferences which
            reasonably could be drawn therefrom, a


                                     16                                A-4993-14T4
          reasonable jury could find guilt of the charge
          beyond a reasonable doubt.

     A person is guilty of conspiracy with another person to commit

robbery if

          with the purpose of promoting or facilitating
          its commission he:

          (1) Agrees with such other person or persons
          that they or one or more of them will engage
          in conduct which constitutes such crime or an
          attempt or solicitation to commit such crime;
          or

          (2) Agrees to aid such other person or persons
          in the planning or commission of such crime
          or of an attempt or solicitation to commit
          such crime.

          [N.J.S.A. 2C:5-2(a).]

     A conspiracy to commit robbery does not require the robbery

occur.   "Actual commission of the crime is not a prerequisite to

conspirator liability."   In re State ex rel. A.D., 212 N.J. 200,

222 (2012) (quoting State v. Samuels, 189 N.J. 236, 245-46 (2007)).

Indeed, "[n]o overt act need be proven to convict of conspiracy

to commit a crime of the first or second degree," such as robbery.

State v. Hardison, 99 N.J. 379, 387-88 (1985); see N.J.S.A. 2C:5-

2(d); N.J.S.A. 2C:15-1. "The only question is whether a reasonable

jury, viewing the State's evidence in its most favorable light,

could find beyond a reasonable doubt that defendants, acting with

a purposeful state of mind, agreed to commit, attempted to commit,


                               17                           A-4993-14T4
or aided in the commission of [the crime]."                     Scherzer, 301 N.J.

Super. at 401.

       "Because     the     conduct   and      words    of      co-conspirators       is

generally shrouded in 'silence, furtiveness and secrecy,' the

conspiracy may be proven circumstantially."                  Samuels, 189 N.J. at

246.    Here there was direct evidence, and ample circumstantial

evidence, that defendant agreed to commit, attempt, or aid robbery.

Additionally,       there    was    evidence      the    conspirators      committed

multiple acts which corroborated their agreement.

       Defendant     admitted       Morgan       and    "everybody,"       including

defendant, were "talking about trying to rob people."                      Defendant

and Morgan repeatedly called United Taxi, Flash Taxi, and Caribe

Taxi, often blocking their numbers from caller ID.                      When United

Taxi dispatched Gomez's taxi, a man drew a silver gun and tried

to enter.    When United Taxi dispatched Leonardo's taxi, defendant

admittedly    got    in     the    taxi   with    Morgan.         The   right-handed

defendant's left palm print was on the partition through which

Leonardo was shot.           Given the absence of shell casings in the

taxi, it was a reasonable inference Leonardo was shot with a

revolver.     Defendant       admitted      Morgan      often    carried   a    silver

revolver.    Based on all the evidence, a reasonable jury could find

that defendant and Morgan agreed to rob a taxi driver in the pre-

dawn hours, and repeatedly tried to do so.

                                          18                                   A-4993-14T4
     Defendant argues the evidence was insufficient to support a

conspiracy to rob taxi drivers from Flash Taxi or Caribe Taxi.

However, the number and frequency of calls by defendant and Morgan

to all three taxi companies supported a reasonable inference that

they had agreed to rob whatever taxi driver responded, as they

tried to rob both Gomez and Leonardo.            As there was sufficient

evidence of that agreement, it is irrelevant whether Flash Taxi

and Caribe Taxi answered or responded to defendants' calls.              "It

is the agreement that is pivotal."       Ibid.

     Defendant   argues   there   was    insufficient    evidence     of    a

conspiracy to rob Gomez.     However, Gomez testified the man who

tried to get in his taxi was around 6'0" tall; defendant was over

5'8", while Morgan was 5'2" or less.       Gomez testified that he saw

the man had a gun, that "I thought it was a gun because I had seen

them before in my country," and that as soon as he saw the gun he

"sped off with the doors open."        Based on that testimony and all

the evidence, it was a reasonable inference that the man was

defendant, that he had a gun, and that he intended to rob Gomez

as he and Morgan had agreed.      See id. at 248-49.      The jury could

rely on that testimony even though Gomez expressed uncertainty on

cross about the object he saw, and defendant denied involvement.

Scherzer, 301 N.J. Super. at 404.



                                  19                                A-4993-14T4
     On its verdict sheet, the jury found defendant guilty of

conspiracy to commit robbery generally, and specifically against

Leonardo, Gomez, and taxi drivers from the other taxi companies.

We must uphold defendant's conspiracy conviction if there was

sufficient evidence to support a conspiracy to rob any one of

those victims.   See N.J.S.A. 2C:5-2(c).        We find the evidence was

sufficient as to each of the victims.       Indeed, defendant does not

appeal the sufficiency of the evidence he conspired to rob Leonardo

and committed robbery against him.

                                 IV.

     Finally, on appeal, defendant for the first time challenges

the jury instructions on the crime of felony murder.           The trial

court instructed the jury using Model Jury Charge (Criminal),

"Felony Murder – Slayer Participant (N.J.S.A. 2C:11-3a(3))" (rev.

Mar. 22, 2004) [Slayer Charge].        Defendant now claims the court

sua sponte should also have instructed the jury using Model Jury

Charge   (Criminal),   "Felony   Murder     –   Non-Slayer   Participant

(N.J.S.A. 2C:11-3a(3))" (rev. Mar. 22, 2004) [Non-Slayer Charge].

     Where   a   defendant   "does    not   request   the    [non-slayer]

instruction, it is only when the evidence clearly indicates the

appropriateness of such a charge that the court should give it."

State v. Walker, 203 N.J. 73, 87 (2010).              Moreover, such a

defendant must at least show plain error.          Id. at 78, 89-90.      A

                                 20                               A-4993-14T4
defendant    claiming    plain      error    must     demonstrate      "'[l]egal

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.'"    Id. at 90 (citation omitted); see R. 2:10-2.

     Defendant did not merely fail to request the instruction; he

agreed the trial court's charge was acceptable.                Thus, his claim

on appeal is barred by the doctrine of invited error.               "Under that

settled   principle     of   law,   trial    errors     that   'were   induced,

encouraged or acquiesced in or consented to by defense counsel

ordinarily are not a basis for reversal on appeal.'"                   State v.

A.R., 213 N.J. 542, 561 (2013) (citation omitted).

     At the final charge conference, the trial court noted: "I've

been working on what I believe is now the final version of the

charge with counsel extensively during the course of the trial up

through and including today."          The court presented the parties

with the "proposed jury charge," which included the Slayer Charge,

but not the Non-Slayer Charge.              After counsel and the court

discussed   various     instructions,       including    felony     murder    and

lesser-included offenses, the court asked:

            THE COURT: . . . So having said those things,
            is my 32-page charge as it exists, with the
            changes that were pointed out to the Court by

                                      21                                 A-4993-14T4
            counsel on the enumerated pages, acceptable?
            Is the charge acceptable?

            [DEFENSE COUNSEL]:       Yes, Your Honor.

       "At the very least, [defendant] consented or acquiesced to"

the trial court's proposed charge by stating it was acceptable,

which encouraged and induced the court to give that charge.                A.R.,

213 N.J. at 563; see N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 339-40, 341 (2010) (finding defense counsel

consented to the admission of evidence by agreeing he was not

objecting).     Thus, defendant invited the court to give its charge

without the Non-Slayer Charge, and he is "barred by the doctrine

of    invited   error    from    contesting"    the   charge.     That      bars

defendant's belated challenge to the charge.             See Brett v. Great

Am. Rec., 144 N.J. 479, 503-04 (1996); see State v. Ramseur, 106

N.J. 123, 282 (1987); see also State v. Munafo, 222 N.J. 480, 487

(2015).

       "'Even if a party has "invited" an error, though, courts will

not   bar   defendants    from   raising   an   issue   on   appeal   if   "the

particular error . . . cut mortally into the substantive rights

of the defendant"'" or "would '"cause a fundamental miscarriage

of justice,"'"      A.R., 213 N.J. at 562 (first quoting State v.

Corsaro, 107 N.J. 339, 345 (1987); then quoting M.C. III, 201 N.J.

at 342 (quoting Brett, 144 N.J. at 508)).               However, "this case


                                      22                              A-4993-14T4
presents no fundamental injustice that would warrant relaxing the

invited error doctrine."       See M.C. III, 201 N.J. at 342.

      The Slayer Charge defendant received was more favorable to

him than the Non-Slayer Charge.              Using the Slayer Charge, the

trial court instructed the jury: the State contended defendant

"shot and killed Isidro Leonardo"; and "the State must prove beyond

a reasonable doubt" both that "the death of Isidro Leonardo was

caused by the defendant," and that "but for defendant's conduct

in   the   commission   of    or   attempt    to   commit   or    flight     after

committing or attempting to commit robbery, the victim would not

have died."

      By contrast, under the Non-Slayer Charge, the court would

have instructed the jury "[t]he State does not contend                         that

defendant himself[] killed" the victim, and "it does not matter

that the act which caused death was committed by a participant in

the crime of [robbery] other than the defendant."                Id. at 1.      The

court also would not have required the State to prove the victim's

death was caused by defendant, and instead would have required the

State to prove merely that "but for defendant's conduct or the

conduct of one or more others with whom the defendant participated

in   the   commission   of,   or   attempt    to   commit   or    flight     after

committing or attempting to commit [robbery], the victim would not

have died."    Id. at 2-3 (emphasis added).           Thus, giving the Non-

                                      23                                   A-4993-14T4
Slayer Charge would have given the jury another way to convict

defendant of felony murder, without having to find either that he

caused Leonardo's death or that Leonardo would not have died but

for defendant's conduct.

    Nonetheless,   defendant    claims   the   Non-Slayer   Charge    is

favorable because it contains an affirmative defense "if there is

proof" that the defendant was not the only participant in the

crime and that the defendant:

          (a) Did not commit the homicidal act or in any
          way solicit, request, command, importune,
          cause or aid the commission thereof; and

          (b) Was not armed with a deadly weapon, or any
          instrument, article or substance readily
          capable of causing death or serious physical
          injury and of a sort not ordinarily carried
          in public places by law-abiding persons; and

          (c) Had no reasonable ground to believe that
          any other participant was armed with such a
          weapon, instrument, article or substance; and

          (d) Had no reasonable ground to believe that
          any other participant intended to engage in
          conduct likely to result in death or serious
          physical injury.

          [Id. at 5; see N.J.S.A. 2C:11-3(a)(3)(a)-(d).]

    However, that affirmative defense would not have prevented

defendant's conviction of felony murder under the trial court's

Slayer Charge, which required the jury to find defendant caused

the victim's death, in contravention to the first prerequisite of


                                24                             A-4993-14T4
the affirmative defense.     See N.J.S.A. 2C:11-3(a)(3)(a).      "[T]he

affirmative defense leaves unaffected the imposition of absolute

liability"   on   the   primary   actor,   and   "merely   narrows   the

circumstances in which an accomplice, as distinguished from the

primary actor, may be liable for felony murder."       State v. Martin,

119 N.J. 2, 23 (1990).

     In any event, there must be "some evidence to support each

of the four factors" before an instruction on the affirmative

defense should be given.     Walker, 203 N.J. at 84, 89.       Although

defendant stated he had never used a gun before, he does not point

us to evidence he was not armed.       Even assuming his statements

contained such evidence, his claim fails.        In Walker, our Supreme

Court found an erroneous failure to charge the affirmative defense

was not plain error because "the findings of the jury negated most

of the factors required to establish the affirmative defense."

Id. at 78, 89-91.

          [T]he jury convicted defendant of conspiracy
          [to   commit   robbery],   robbery,   reckless
          manslaughter as a lesser-included offense of
          knowing or purposeful murder, and possession
          of a knife. For those convictions, the jury
          had to conclude that defendant aided the
          commission of the homicidal act, (reckless
          manslaughter); possessed a deadly weapon,
          (possession of a knife); had reason to believe
          the codefendant was armed with a knife,
          (conspiracy and reckless manslaughter); and
          engaged in conduct likely to result in death
          or   serious   physical    injury,   (reckless

                                  25                            A-4993-14T4
              manslaughter). Thus, the jury, although not
              charged with the affirmative defense to felony
              murder, found against defendant on most, if
              not all, of the four prongs of the defense.

              [Id. at 90; see id. at 82.]

       Here, the jury found the State proved beyond a reasonable

doubt that defendant possessed a handgun unlawfully and for an

unlawful purpose, which negated that he "[w]as not armed with a

deadly weapon," one of the prerequisites for the affirmative

defense.      N.J.S.A. 2C:11-3(a)(3)(b).       "[I]t is sufficient for the

State in such case to present proof beyond a reasonable doubt

negating any one of them."           Non-Slayer Charge at 5; see State v.

Ingram, 196 N.J. 23, 35, 43 (2008) (approving a judge's instruction

that   "the    State   has   [the]    burden   to   disprove   one   of     those

elements"); see also State v. Smith, 322 N.J. Super. 385, 396

(App. Div. 1999) (finding the affirmative defense does not apply

if the evidence "did not provide any support for" one factor).

       Moreover, by convicting defendant of felony murder, the jury

necessarily found elements which negated another prerequisite for

the affirmative defense.       As the State argued, defendant could be

convicted of felony murder either (1) as the shooter under the

Slayer Charge or (2) as an accomplice to the shooter.5


5
  Defendant argues the jury could have convicted him of felony
murder as a conspirator, but he was not charged with conspiring


                                       26                                 A-4993-14T4
     Under the first option, if the jurors convicted defendant of

felony murder under the Slayer Charge, they found the death of the

victim was "caused by the defendant."       That finding would be

inconsistent with the affirmative defense's prerequisite that the

defendant "[d]id not commit the homicidal act or in any way . . .

cause . . . the commission thereof."    N.J.S.A. 2C:11-3(a)(3)(a).

     Defendant contends the jury found he was not the shooter

because it acquitted him of murder.    However, the jury could have

found that defendant was the shooter but did not act "purposely

or knowingly," as required by the court's instructions on murder.

See N.J.S.A. 2C:11-3(a)(1), (2).    Defendant cites a question from

the jury: "If the State does not have enough evidence to prove

that, one, Wallace Parrish committed the murder of Isidro Leonardo;

two, [Morgan] committed the murder of Isidro Leonardo, can Wallace

Parrish be convicted of felony murder as an accomplice?"        That

question does not say whether the jury convicted defendant under

the Slayer Charge or as an accomplice; indeed, the trial court

instructed the jury to refer to both its Slayer Charge and its

accomplice charge.




to commit felony murder, and the trial court instructed the jury
that "[c]onspiracy to commit robbery is a separate offense from
robbery and cannot be a basis for a conviction of felony murder."

                               27                           A-4993-14T4
     In any event, under the second option,                        the trial court

instructed that the jury could convict defendant as an accomplice

of another person only "if, with the purpose of promoting or

facilitating the commission of the offense, he (a) solicits such

other person to commit it and/or (b) agrees or attempts to aid

such person in planning or committing it."                       See N.J.S.A. 2C:2-

6(c)(1)(a), (b).        That finding would be inconsistent with the

affirmative defense's prerequisite that the defendant "[d]id not

. . . in any way solicit . . . or aid the commission" of the

homicidal act."       N.J.S.A. 2C:11-3(a)(3)(a).

     Therefore,       whether      the    jury   convicted       defendant     as    the

shooter or the shooter's accomplice, the jury necessarily had to

find that the State proved beyond a reasonable doubt an element

that negated N.J.S.A. 2C:11-3(a)(3)(a), another prerequisite for

the affirmative defense.            "Thus, the jury, although not charged

with the affirmative defense to felony murder, found against

defendant    on     [two],    if   not    all,   of   the   four     prongs    of     the

[affirmative] defense."            Walker, 203 N.J. at 90.

     The     jury     also    found       defendant     committed         robbery    and

conspiracy to commit robbery.               We need not reach whether those

convictions were inconsistent with the affirmative defense.                           See

State   v.   Belliard,       415   N.J.    Super.     51,   76    (App.    Div.     2010)

(indicating that a defendant must have "had nothing to do with the

                                          28                                   A-4993-14T4
act that caused the death" and that "the intent and preset plan

[must be] to commit a non-violent felony").

In any event, the jury found facts beyond a reasonable doubt that

were inconsistent with at least one of the prerequisites for the

affirmative defense.    Thus, "we do not believe that the failure

to give the omitted charge on the defense to felony murder would

have altered the jury's conclusions," and any failure to instruct

on the affirmative defense did not have the capacity to result in

"an unjust result."    Walker, 203 N.J. at 90-91; State v. Sheika,

337 N.J. Super. 228, 251 (App. Div. 2001).    "Nor was the alleged

error of such moment as to '"cut mortally into the substantive

rights of the defendant[]."'"    Ibid. (quoting Corsaro, 107 N.J.

at 341).   We see no reason to reverse based on an alleged error

defendant invited.

     Defendant's remaining arguments lack sufficient merit to

warrant discussion.    R. 2:11-3(e)(2).

     Affirmed.




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