                                NOT FOR PUBLICATION WITHOUT THE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-4786-15T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHARLES F. SAWYER,

     Defendant-Appellant.
______________________________

                    Submitted January 14, 2019 – Decided January 30, 2019

                    Before Judges Fasciale, Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 13-07-
                    0746.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Lila B. Leonard, Deputy Attorney General,
                    of counsel and on the brief).

PER CURIAM
      Defendant appeals from his convictions for first-degree murder, N.J.S.A.

2C:11-3(a)(1)(Count One); second-degree possession of a firearm for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(Count Two); second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b)(Count Three); first-degree felony

murder, N.J.S.A. 2C:11-3(a)(3)(Count Four); first-degree kidnapping, N.J.S.A.

2C:13-1(b)(Count Five); second-degree burglary, N.J.S.A. 2C:18-2 (Count Six);

third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Seven); third-

degree terroristic threats, N.J.S.A. 2C:12-3(b)(Count Eight); and fourth-degree

aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4)(Count Nine). We

affirm.

      Defendant placed a gun to the head of his ex-wife (the victim), pulled the

trigger, and shot her. He did that after entering her home and tying her arms

around her back with duct tape. She died that night. After shooting her,

defendant drove to his son's (the son) home and parked in the driveway. Ten

minutes later, the son approached defendant, who had remained inside his

vehicle, to find out why he was there. Defendant gave the son a sock containing

$2000, keys to another vehicle, and while looking down and staring at his

steering wheel, defendant repeatedly told the son "I f***** up." Defendant then

drove away.


                                                                        A-4786-15T2
                                       2
      The son called defendant's cell phone, but defendant did not answer. The

son called the victim, but there was no answer. The son then called his brother

(the brother) and reported what had happened and said he was driving to the

victim's house. On the way to the victim's home, the son called 9-1-1. Before

arriving at the house, the police requested that the son call defendant once more

on his cell phone to help the police locate defendant's whereabouts. The son

complied and defendant answered the call but then quickly hung up. The brother

also called defendant several times that night.

      The multiple calls to defendant, coupled with defendant's use of his own

phone, disclosed that he was hiding in a trailer park. Detective Kevin Husband

and Trooper Matthew Cocking converged at that location.            The officers

approached the side of a trailer, and called out "anybody inside, come out with

your hands up." Defendant appeared from behind the trailer and followed the

instructions by the officers, who handcuffed and arrested him. They located the

gun, which was nearby.

      Meanwhile, first responders investigated the crime scene. They found the

victim's body, with duct tape around her arms in a pool of blood. They located

a piece of copper jacketing from a bullet on the floor near her body, a bullet




                                                                         A-4786-15T2
                                        3
behind a nearby air vent cover, and the roll of duct tape on the floor near the

pool of blood.

        At defendant's house, the police found his vehicle – containing duct tape

in the door pocket, a laptop computer on the backseat floor, and keys in the trunk

– parked in the driveway. Inside the home, the police located pieces of duct tape

in the living room on the floor, coffee table, and hallway. They also found

airline correspondence on the coffee table, paperwork related to the victim's

divorce from defendant eight years earlier, and his passport tucked away in a

suitcase.

        Defendant's friend (the friend) testified that shortly before the murder, he

had asked defendant to housesit while he and his family went on vacation.

Defendant agreed to do so and was the only person at the friend's home where

defendant had access to numerous firearms, including a .45 military handgun, a

semiautomatic gun, a .357 revolver, and a .9-millimeter semiautomatic handgun.

The friend identified the .357 revolver – manufactured by Charter Arms and

introduced into evidence – as his gun. The police found this gun at the trailer

park.

        Defendant testified at the trial. He explained that he brought the gun with

him, at the victim's request, because she was interested in purchasing it.


                                                                            A-4786-15T2
                                          4
Defendant said the victim loaded the gun, and that it accidentally went off as he

tried to take it from her. He stated the shooting was "no head shot." Defendant

called 9-1-1 after the shooting, and the jury heard a recording of the 9-1-1 call

in which he stated that he accidentally shot his "wife," he was trying to scare

her, and he pulled the hammer back on the gun. At trial, defendant testified that

he did not remember making that call.

      A firearm and tool-mark expert employed by the police examined the .357

revolver that the police found at the trailer park. Based on his expert opinion,

he said that the gun was not defective and it would have been impossible for the

gun to accidentally discharge. He testified that out of more than 10,000 guns

that he had tested, none of the guns made by Charter Arms would discharge

accidentally.

      The State presented testimony from detectives who determined that during

the shooting, the victim was laying down and facing upwards due to the amount

of her blood on the floor and lack of blood on the walls. The medical examiner

testified that the victim died by a perforating contact gunshot to the left side of

her head. Based upon the contact wound, tears in the skin, soot from the gun

barrel, and gas discharge from the gun, he concluded that the perpetrator of the

crime pressed the gun tightly against the victim's skull.


                                                                           A-4786-15T2
                                        5
On appeal, defendant argues:

     POINT I
     THE TRIAL COURT ERRED IN PERMITTING THE
     PROSECUTOR TO ADMIT INTO EVIDENCE AT
     TRIAL STATEMENTS MADE BY DEFENDANT TO
     A   WITNESS    REFERENCING    A   PRIOR
     COMPLAINT ABOUT DEFENDANT MADE TO
     POLICE BY THE VICTIM.

           A. The Evidence In Question.

           B. The Evidence Was Not Intrinsic To The
           Offense of Burglary.

           C. The Evidence Was Not Admissible To
           Establish Its Effect on The Listener.

           D. The Evidence Was Not A Statement
           Against Interest.

     POINT II
     THE TRIAL COURT ERRED IN FAILING TO
     CHARGE THE JURY ON THE LESSER-INCLUDED
     OFFENSE     OF     PASSION/PROVOCATION
     MANSLAUGHTER, AND ON THE JUSTIFICATION
     OF SELF-DEFENSE, WHEN EVIDENCE IN THE
     RECORD     CLEARLY     INDICATED     THE
     APPLICABILITY OF BOTH CHARGES. (Not Raised
     Below).

           A. The Trial Court Erred When It Failed To
           Instruct The Jury On The Lesser-Included
           Offense       of      Passion/Provocation
           Manslaughter.

           B. The Trial Court Erred When It Failed To
           Instruct The Jury On Self-Defense.

                                                        A-4786-15T2
                               6
           POINT III
           THE TRIAL COURT ERRED IN PERMITTING THE
           STATE     TO  SUPPLEMENT        THE     JURY
           QUESTIONNAIRE WITH QUESTIONS ASKING
           POTENTIAL JUROR[]S ABOUT THEIR OPINIONS
           ON DOMESTIC VIOLENCE AND DESCRIBING
           THE    CASE  AS   INVOLVING       DOMESTIC
           VIOLENCE WHEN NO SUCH EVIDENCE WAS
           PRESENTED AT TRIAL. (Not Raised Below).

           POINT IV
           THE SENTENCE IMPOSED IS MANIFESTLY
           EXCESSIVE AND MUST BE REDUCED.

                 A. The Sentence Imposed.

                 B. The Sentencing Court Erroneously
                 Applied Aggravating Factors (1) and (15).

                 C. The Sentencing Court Erred When It
                 Imposed A Consecutive Sentence on Count
                 Seven.

                 D. The Sentencing Court Erred When It
                 Imposed Fines On The Merged Offenses
                 And Imposed A Domestic Violence
                 Offender Surcharge.

                                   I.

     We begin by addressing defendant's contention that the judge made an

erroneous evidentiary ruling.    In evaluating defendant's contention, we

acknowledge the strong degree of deference we generally accord criminal trial

judges in their rulings on evidential admissibility.   Such rulings generally


                                                                      A-4786-15T2
                                        7
"should be upheld 'absent a showing of an abuse of discretion, i.e., there has

been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012)

(quoting State v. Brown, 170 N.J. 138, 147 (2001)).           "An appellate court

applying this standard 'should not substitute its own judgment for that of the trial

court, unless the trial court's ruling is so wide of the mark that a manifest denial

of justice resulted.'" Ibid. (quoting Brown, 170 N.J. at 147). Applying this

standard, we see no such "manifest denial of justice" or clear error here.

      The State produced Sergeant William McCain as a witness, who testified

about a conversation he had with defendant shortly before the murder. The

assistant prosecutor prepared her direct-examination questions and reviewed

them with McCain, and then with defense counsel before she questioned

McCain. She also asked the judge for permission to lead McCain through his

testimony to avoid the possibility that he would blurt out the details of the

victim's complaint that defendant had recently harassed her. Defense counsel

did not object.

      McCain, who was an acquaintance of defendant for over thirty years and

who was a close friend of his extended family, testified that he unexpectedly

saw defendant at Target four days before the murder.             McCain testified

defendant "was very concerned . . . that [the victim] had contacted the police the


                                                                             A-4786-15T2
                                         8
day before [he saw defendant at Target]." He described defendant as "upset,"

and said that defendant told him he would not contact the victim at all. McCain

did not give details of the victim's call to the police.

      In addition to showing defense counsel the direct-examination questions

in advance, the assistant prosecutor prepared a limited jury instruction for the

judge to read after she completed her questioning of McCain about the

conversation at Target. Without objection, the judge used the proposed Rule

404(b)-type charge and told the jury:

                    Let me just [say], ladies and gentlemen, from
             time to time, during the course of the trial, there will be
             some instructions that I give you during the testimony
             of any one particular witness. Those instructions are
             often referred to as a limiting instruction. And the
             reason for that phraseology, limiting instruction, is to
             instruct you as to the limited purpose of certain
             testimony and your ability to use it in a limited way.
             Th[e] . . . testimony from Sergeant McCain falls within
             that category.

                    So in that regard, you have heard that the
             defendant made statements at a time prior to the alleged
             incident. The fact that within that testimony you heard
             that [the victim] had gone to the police to make some
             form of a complaint is not for your consideration. You
             are to consider only how the conversation had an
             impact on the listener, meaning the conversation
             between then Corporal McCain and [defendant], had an
             impact upon the listener, that being [defendant]. You
             are not to speculate as to why, what or even the veracity
             of [the victim]'s visit to the police or the statements she

                                                                           A-4786-15T2
                                          9
            made during that visit to the police, only, again, as to
            the conversation between then Corporal McCain and
            [defendant] and the impact of that conversation upon
            [defendant].

            [(emphasis added).]

      The judge correctly concluded that the testimony from McCain was

intrinsic to the offense of second-degree burglary. Evidence – like here – is

intrinsic if it directly proves the crime charged. State v. Rose, 206 N.J. 141, 180

(2011).   But "[w]henever the admissibility of uncharged bad evidence is

implicated, a Rule 404(b) analysis must be undertaken." 1 Id. at 179. Here, we

undertake such an analysis especially because the limited charge given by the

judge instructed the jury not to consider or speculate why the victim went to the

police. We perform this analysis de novo because the judge did not do so. See

State v. Garrison, 228 N.J. 182, 194 (2017) (indicating that courts "cautiously

examine" any evidence that is "in the nature of prior bad acts").

      Under that rule, evidence of other crimes, wrongs, or acts are generally

not admissible unless admitted for another permissible purpose. See Rose, 206

N.J. at 180-82. Rule 404(b) states:


1
  We are aware that "if evidence is found to be intrinsic to the crime at issue, it
does not constitute other-acts evidence and is subject only to the limits of Rule
403." State v. Santamaria, ___ N.J. ___ (2019) (slip op. at 23). Nevertheless,
we undertake a Rule 404(b) analysis as the Court had done in Garrison.
                                                                           A-4786-15T2
                                       10
            Except as otherwise provided by Rule 608(b), evidence
            of other crimes, wrongs, or acts is not admissible to
            prove the disposition of a person in order to show that
            such person acted in conformity therewith. Such
            evidence may be admitted for other purposes, such as
            proof of motive, opportunity, intent, preparation, plan,
            knowledge, identity or absence of mistake or accident
            when such matters are relevant to a material issue in
            dispute.

See also State v. Cofield, 127 N.J. 328, 338 (1992) (stating four-factor test set

forth to evaluate admissibility of evidence pursuant to Rule 404(b)).

      McCain's testimony satisfied the first prong of the Cofield analysis, which

requires that the evidence "must be admissible as relevant to a material issue."

Ibid.; see Rose, 206 N.J. at 160 (stating that evidence in question must have

"tendency in reason to prove or disprove any fact of consequence" by making

desired inference more probable than if evidence were not admitted). Rule 401

defines relevant evidence as evidence that tends to prove or disprove a fact of

consequence. State v. Darby, 174 N.J. 509, 519 (2002). As to the second-degree

burglary charge, N.J.S.A. 2C:18-2 states in pertinent part that

            [a] person is guilty of burglary if, with purpose to
            commit an offense therein or thereon he:

            (1) Enters a . . . structure, . . . unless the structure was
            at the time open to the public or the actor is licensed or
            privileged to enter;



                                                                           A-4786-15T2
                                        11
            (2) Surreptitiously remains in [the] . . . structure, . . .
            knowing that he is not licensed or privileged to do so;

                  ....

            Burglary is a crime of the second degree if in the course
            of committing the offense, the actor:

            (1) Purposely, knowingly or recklessly inflicts,
            attempts to inflict or threatens to inflict bodily injury
            on anyone; or

            (2) Is armed with or displays what appear to be
            explosives or a deadly weapon.

From McCain's testimony, the jury could infer that defendant knew he was

unwelcome in the victim's home.

      As to prong two, the other crime evidence "must be similar in kind and

reasonably close in time to the offense charged." Cofield, 127 N.J. at 338. Here,

the conversation between McCain and defendant took place four days before he

murdered the victim, and one day after she complained to the police. Moreover,

the conversation centered on defendant's relationship with the victim and his

understanding that he was unwelcome around her. Thus, the State satisfied the

second prong of Cofield.

      As to prong three, "[t]he evidence of the other crime must be clear and

convincing."   Ibid.; see Rose, 206 N.J. at 160 (explaining that State must

demonstrate that uncharged conduct "actually happened" by clear and

                                                                          A-4786-15T2
                                       12
convincing evidence). McCain provided a level of detail about his conversation

with defendant that is consistent with the other facts established at trial. For

example, the record reflects that defendant sent the victim harassing text

messages in the days preceding his conversation with McCain, and thus this

evidence corroborated defendant's strained relationship with the victim.

Moreover, the jury heard testimony that the victim sent defendant a text message

the day before defendant's encounter with McCain, in which she told him not to

come to her home anymore because she was afraid of him. This corroborative

evidence demonstrated that it was highly probable that the conversation at

Target occurred. See State v. Hernandez, 334 N.J. Super. 264, 271 (App. Div.

2000) (stating that "clear and convincing" evidence establishes for trier of fact

firm belief as to truth about matter at issue). The State therefore satisfied prong

three of Cofield.

      As to prong four, "[t]he probative value of the evidence must not be

outweighed by its apparent prejudice." Cofield, 127 N.J. at 338. The probative

value of the evidence was high because it further heighted defendant's awareness

that the victim did not want him near her. Moreover, at trial, defendant did not

deny receiving text messages from the victim in which she told defendant to stay

away from her home. Thus, McCain's testimony – which omitted the details of


                                                                           A-4786-15T2
                                       13
the victim's domestic violence complaint – was substantially more probative

than prejudicial.

      The judge also concluded correctly that defendant's statement to McCain

– that he would stay away from the victim – was admissible as a statement-

against-interest under Rule 803(c)(25), which allows a hearsay statement to be

admitted into evidence if it

            was at the time of its making so far contrary to the
            declarant's pecuniary, proprietary, or social interest, or
            so far tended to subject declarant to civil or criminal
            liability, or to render invalid declarant's claim against
            another, that a reasonable person in declarant's position
            would not have made the statement unless the person
            believed it to be true. Such a statement is admissible
            against an accused in a criminal action only if the
            accused was the declarant.

"The statement-against-interest exception is based on the theory that, by human

nature, individuals will neither assert, concede, nor admit to facts that would

affect them unfavorably." State v. White, 158 N.J. 230, 238 (1999).

      Thus, for this hearsay exception to apply, "there must be some evidence

establishing that the putative declarant actually made the statement in question."

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2 on N.J.R.E.

803(c)(25) (2018) (citing State v. Bowens, 219 N.J. Super. 290, 296 (App. Div.

1987)). The State produced ample evidence at trial demonstrating that defendant


                                                                          A-4786-15T2
                                       14
indeed made the statement. Defendant's statement was against his social interest

because he shared with McCain his decision not to contact the victim. His

statement is inherently reliable because defendant would not have told McCain

about his personal problems with the victim unless those statements were true.

See White, 158 N.J. at 238 (explaining that in general people do not make

unfavorable statements unless statements are true).

      Additionally, the judge concluded that defendant was a "listener" and

therefore admitted the conversation to show defendant's awareness that the

victim did not want him to contact her. Generally, evidence admitted under this

method is used to show a listener's state of mind or that the listener took certain

action because of a statement. Biunno, Weissbard & Zegas, cmt. 4 on N.J.R.E.

801. Although the limited jury charge referred to defendant as a "listener,"

defendant was technically not the listener, but rather, he was the speaker – that

is, the one who told McCain "now that [the victim] is involved with police[,]

[he] was not going to contact her at all." Nevertheless, the State contended that

defendant was the "listener," and that he had made the statement in response to

McCain's comments that the victim had gone to the police. Defense counsel did

not object to the limited instruction.




                                                                           A-4786-15T2
                                         15
      We review the limited jury instruction for plain error because defense

counsel did not object. Cofield, 127 N.J. at 341. Plain error is an error "clearly

capable of producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971);

see also State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974) (stating that

errors that are induced, encouraged by, or consented to by defense counsel are

typically not the basis for reversal). We see no plain error here.

      Referring to defendant as the "listener" – even if that were inaccurate –

would not have led the jury to consider McCain's testimony for the

impermissible purpose of wondering why the victim went to the police. And

even if the evidence was not intrinsic to the second-degree burglary charge, and

was instead classic Rule 404(b) evidence, as our analysis demonstrates, the

judge essentially instructed the jury not to consider the Target conversation as

propensity evidence. With the instruction as given, to consider defendant as a

"listener," the jury still would have only acknowledged that defendant knew he

was not supposed to go near the victim. Thus, the wording of the instruction

was not capable of producing an unjust result, especially because of the

overwhelming evidence of guilt. 2 Regardless, defendant's admission that he


2
  See State v. Pressley, 232 N.J. 587, 594 (2018) (stating that misstatement of
law during State's summation was not capable of creating unjust result "in light


                                                                          A-4786-15T2
                                       16
would leave her alone was intrinsic to the second-degree burglary charge and

the judge properly admitted the statement as an exception to the hearsay rule

(Rule 803(c)(25)). Therefore, the jury considered it for its truth when they

evaluated the second-degree burglary charge.

                                      II.

      We reject defendant's argument that the judge erred by not sua sponte

charging the jury on a lesser-included offense of passion/provocation

manslaughter and a justification of self-defense. Defendant concedes that his

trial counsel did not request that the judge give these instructions. We therefore

consider this contention for plain error.

      Under     N.J.S.A.    2C:11-4(b)(2),    criminal    homicide     constitutes

manslaughter when a homicide that would otherwise be considered murder




of the overwhelming evidence of defendant's guilt"); see also State v. Prall, 231
N.J. 567, 571-72 (2018) (holding that defendant's convictions would be affirmed
despite absence of limiting instruction, use of bad act evidence during
summations, and admission of hearsay because errors "were not capable of
producing an unjust result because of the overwhelming weight and quality of
the evidence" against defendant); State v. Weston, 222 N.J. 277, 294-300 (2015)
(directing reviewing court to look at whether alleged error had clear capacity to
cause unjust result and, also, strength of State's case); State v. Sowell, 213 N.J.
89, 107-08 (2013) (affirming conviction on strength of State’s case despite
improper admission of expert testimony); State v. Vick, 117 N.J. 288, 292
(1989) (stating that error in jury instructions is only excusable if harmless
beyond reasonable doubt).
                                                                           A-4786-15T2
                                       17
under N.J.S.A. 2C:11-3 is committed "in the heat of passion resulting from a

reasonable provocation." A trial court may not submit to the jury a lesser-

included offense if the trial record does not contain factual support for it. State

v. Hollander, 201 N.J. Super. 453, 473 (App. Div. 1985); see also State v.

Cardona, 268 N.J. Super. 38, 46 (App. Div. 1993) (setting forth four required

elements of passion/provocation manslaughter: provocation must be adequate;

defendant must not have had time to cool off; provocation must have actually

impassioned defendant; and defendant must not have actually cooled off before

slaying).

      Here, the jury heard no evidence that defendant acted in the heat of passion

or in response to adequate provocation. See State v. Crisantos, 102 N.J. 265,

276   (1986)   (stating   that   it   is   improper for   the   court   to   charge

passion/provocation manslaughter when there is no rational basis in the record

to support such a charge). Rather, the evidence demonstrated that defendant

appeared at the victim's home armed with a gun after he sent her harassing text

messages within a few days of her telling him to stay away. The evidence

demonstrates that defendant attacked her. Even defendant's testimony – that the

gun accidentally discharged when the victim grabbed his arm – did not support

a passion/provocation manslaughter charge. Under N.J.S.A. 2C:1-8(d)(1), an


                                                                             A-4786-15T2
                                           18
instruction on passion/provocation manslaughter was unwarranted. We see no

error, let alone plain error.

      Likewise, the judge did not err by failing to give a self-defense jury

charge. Pursuant to N.J.S.A. 2C:3-4(a), the use of force is permissible for self-

defense if "the actor reasonably believes that such force is immediately

necessary for the purpose of protecting himself against the use of unlawful force

by such other person on the present occasion." The use of force is unjustified if

he "with the purpose of causing death or serious bodily harm, provoked the use

of force against himself in the same encounter." N.J.S.A. 2C:3-4(b)(2)(a).

      Here, there was no rational basis for charging the jury with the

justification of self-defense. See State v. Daniels, 224 N.J. 168, 181 (2016)

(holding that court should provide affirmative defense charge requested by

defense if "there is a rational basis to do so based on the evidence"). The police

found the victim's body with her hands duct-taped behind her back. Defendant

pressed the gun firmly against the left side of the victim's head. Defendant's

9-1-1 call captured defendant's admission that he shot the victim intending to

scare her with the gun. Thus, the evidence contradicted the justification of self-

defense, and there was no rational basis for the court to provide this jury charge.

See State v. Doss, 310 N.J. Super. 450, 456-58 (App. Div. 1998) (explaining


                                                                           A-4786-15T2
                                       19
that the trial court did not commit plain error when it failed to sua sponte instruct

the jury on self-defense because evidence at trial did not support it).

                                       III.

      Prior to voir dire, the State proposed that the judge add four additional

questions to the jury questionnaire. The judge reviewed the four questions with

counsel:

             [Number one]. [W]hat are your feelings regarding the
             problem of domestic violence in society today?

             Number [two]. [H]ave you or anyone close to you, ever
             been a victim of domestic violence? If your answer is
             yes, do you think that you could . . . fairly judge this
             case, given the allegations of domestic violence?

             [Number three]. Do[] you or anyone close to you[]
             work or volunteer for a domestic violence advocacy
             group? If so, would this affect your ability to be fair
             and impartial?

             Number [four]. [I]n this case, [defendant] is accused of
             acts of domestic violence . . . based upon . . . your
             feelings on the subject, do you think that you could
             fairly judge him on . . . the other charges?

In response, defense counsel stated "Your Honor, I think that those proposed

questions to the jury are appropriate; and, I would not oppose those being asked

by the [c]ourt, in addition to the standard jury questions." Subsequently, the




                                                                             A-4786-15T2
                                        20
judge addressed the four domestic violence questions with each of the potential

jurors.

      The questions did not indicate that there was a history of domestic

violence between the victim and defendant. A judge in a criminal matter acts as

a gatekeeper for securing an impartial jury. State v. Tyler, 176 N.J. 171, 181

(2003). That is exactly what the judge did here. Importantly, our Supreme Court

has explained:

            The courts in this State have recognized that under the
            State Constitution, Art. I, par. 10, the right of a
            defendant to be tried by an impartial jury is of
            exceptional significance. We have stressed repeatedly
            that the triers of fact must be "as nearly impartial 'as the
            lot of humanity will admit.'"

            [State v. Williams, 93 N.J. 39, 60 (1983) (citations
            omitted).]

Contrary to defendant's assertions on appeal, the judge asked the questions to

ensure that defendant would receive a fair trial. The judge sufficiently tailored

the questions so that they did not suggest or reference a prior history of domestic

violence between defendant and the victim, and accurately prepared potential

jurors for the evidence that they would hear. The four questions ensured, rather

than deprived, defendant of a fair trial. We see no error or abuse of discretion

during the voir dire.


                                                                           A-4786-15T2
                                       21
                                         IV.

      Finally, we address defendant's contentions as to his sentence. After the

appropriate mergers, the judge imposed an aggregate prison sentence of sixty-

one years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.3 He

contends that the judge improperly found aggravating factors one (the nature

and circumstances of the act were especially cruel) and fifteen (the act involved

domestic violence); erroneously imposed a consecutive sentence; and imposed

the wrong fines. We conclude the judge correctly applied the governing law and

see no abuse of discretion. But we direct the judge to amend the judgment of

conviction to enter the correct fines.

      An appellate court applies "a deferential standard of review to the

sentencing court's determination, but not to the interpretation of a law." State

v. Bolvito, 217 N.J. 221, 228 (2014). "Appellate review of sentencing decisions

is relatively narrow and is governed by an abuse of discretion standard." State

v. Blackmon, 202 N.J. 283, 297 (2010). An appellate court may not "substitute




3
   He merged Counts Two, Four, Six, Eight, and Nine into Count One and
sentenced him to fifty-six years in prison subject to NERA; and he ran
concurrent prison terms of ten years on Count Three, and twenty years on Count
Five; consecutive to five years on Count Seven. The aggregate prison term was
sixty-one years subject to NERA.
                                                                         A-4786-15T2
                                          22
[its] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,

65 (2014).

      We must, however, ensure that the trial court followed the appropriate

sentencing guidelines. We determine whether the trial court: 1) exercised

discretion that "was based upon findings of fact grounded in competent,

reasonably credible evidence"; 2) "applied the correct legal principles in

exercising its discretion"; and 3) applied the facts to the law in a manner that

demonstrates "such a clear error of [judgment] that it shocks the conscience."

State v. McDuffie, 450 N.J. Super. 554, 576 (App. Div. 2017) (quoting State v.

Megargel, 143 N.J. 484, 493 (1996)). "In exercising its authority to impose

sentence, the trial court must identify and weigh all of the relevant aggravating

factors that bear upon the appropriate sentence as well as those mitigating

factors that are 'fully supported by the evidence.'" Blackmon, 202 N.J. at 296

(quoting State v. Dalziel, 182 N.J. 494, 505 (2005)).

      The judge found aggravating factors one, three, nine and fifteen. He then

considered and rejected the remaining aggravating factors under the statute. As

for the mitigating factors, the judge considered all of them, but found only

mitigating factors six and seven. He concluded that the aggravating factors

substantially outweighed the mitigating factors by "overwhelming, clear and


                                                                         A-4786-15T2
                                      23
convincing evidence."    Defendant focuses on aggravating factors one and

fifteen.

      The judge found aggravating factor one and gave it significant weight,

concluding that defendant's actions were especially cruel. The judge noted that

defendant sent the victim numerous harassing text messages in the days

preceding her death, which caused her to fear for her safety. Defendant stalked

her at work during the final days before the murder; he entered her home without

permission; he bound her with duct tape, thereby rendering her helpless; he

confronted her; and he shot her while holding the gun pressed to her head.

      As to aggravating factor one, the Court has recognized that "double

counting" is impermissible.    State v. Fuentes, 217 N.J. 57, 74-75 (2014).

"Double counting" is prohibited because an element of the offense may not be

cited as an aggravating factor to increase punishment. Ibid. Here, the judge did

not engage in double counting. Rather, he considered factors outside of the

elements of the offenses when it discussed the circumstances surrounding the

victim's death, such as her awareness that she was going to be killed. Moreover,

the judge discussed and considered the terror he believed that the victim

experienced when defendant entered her home after he had sent her threatening

text messages a few days earlier. Her terror and her awareness of her impending


                                                                        A-4786-15T2
                                      24
death were not elements of the crimes for which defendant was charged. Thus,

the court did not engage in impermissible double counting.

      The judge applied aggravating factor fifteen. The judge focused on the

threatening nature of defendant's text messages to the victim. He explained that

prior acts of domestic violence – on more than one occasion – increased the

victim's fear of defendant. The judge gave aggravating factor fifteen less weight

because there was no prior adjudication of acts of domestic violence.

Nevertheless, the evidence showed that the victim would have been protected

under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to

-35, and the State proved that defendant committed one or more of the predicate

acts as set forth in N.J.S.A. 2C:25-19(a). Indeed, defendant admitted at the trial

that he sent the victim several text messages in the days leading to her death.

      "[M]ultiple sentences shall run concurrently or consecutively as the court

determines at the time of sentence." N.J.S.A. 2C:44-5(a); see also State v.

Randolph, 210 N.J. 330, 354 (2012) (finding that a sentencing court should be

cautious when imposing "multiple consecutive maximum sentences unless

circumstances justifying such an extraordinary overall sentence are fully

explicated on the record").     Five factors that a court should consider in

determining whether to impose a concurrent or consecutive sentence are:


                                                                          A-4786-15T2
                                       25
            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous.

            [State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting
            State v. Yarbough, 100 N.J. 627, 644 (1985)).]

These factors "should be applied qualitatively, not quantitatively." State v.

Carey, 168 N.J. 413, 427 (2001).

      The judge considered the Yarbough factors. Defendant's theft of the

friend's gun pertained to a different victim – that is, the friend. Although

defendant used the gun to kill the victim, the theft constitutes a separate act

defendant committed. Moreover, defendant's convictions on Counts Two and

Three did not require that the gun be stolen, as opposed to Count Seven.

      We agree with the State that the judge properly imposed a $100 fine

because the victim was a victim of domestic violence, but the judge fined

defendant on the convictions that he merged. The State consents to a limited

                                                                           A-4786-15T2
                                     26
remand for the sole purpose of amending the JOC to correct the Victims of

Crime Compensation and Safe Neighborhood Services Fund Assessments.

      We conclude that defendant's remaining arguments – to the extent that we

may not have addressed them – are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      We therefore affirm the convictions, but we direct the judge to amend the

JOC to reflect the proper fines in accordance with this opinion.




                                                                        A-4786-15T2
                                         27
