                        NOT FOR PUBLICATION WITHOUT THE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-2758-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DWAYNE S. JOHNSON,

     Defendant-Appellant.
__________________________

              Submitted October 19, 2016 – Decided May 30, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 13-07-1643.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alan I. Smith, Designated
              Counsel, on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Camila
              Garces, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     A grand jury indicted defendant Dwayne S. Johnson for first-

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

degree robbery, N.J.S.A. 2C:15-1 (count two); and first-degree

murder during the commission of a crime, N.J.S.A. 2C:11-3(a)(3)

(count three).    The charges stemmed from the beating death of

Terrance Everett, which an eyewitness captured on cell phone video.

     Following the denial of his motion to dismiss the indictment,

defendant was tried by a jury and found guilty on count one, guilty

on count two of third-degree theft from a person, N.J.S.A. 2C:20-

2(b)(2)(d), amended from first-degree robbery, and not guilty on

count three.   The trial judge sentenced defendant on count one to

a fifty-year term of imprisonment with an eighty-five-percent

period of parole ineligibility pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive four-year

term of imprisonment on count two.

     On appeal, defendant raises the following contentions:

     POINT I     THE TRIAL COURT'S RULING ADMITTING
                 THE CELL PHONE VIDEO INTO EVIDENCE
                 WAS HARMFUL ERROR BECAUSE UNDER
                 N.J.R.E. 402 THE VIDEO WAS NOT
                 RELEVANT TO THE MATERIAL ISSUE OF
                 CAUSE OF DEATH, AND BECAUSE UNDER
                 N.J.R.E. 403 THE VIDEO SHOULD HAVE
                 BEEN   EXCLUDED   SINCE   THE   []
                 CUMULATIVE EMOTIONAL IMPACT ON THE
                 JURY RESULTING FROM ITS REPEATED
                 PLAYING DURING THE TRIAL CAUSED
                 UNDUE PREJUDICE.
                             2                             A-2758-14T3
     POINT II     DEFENDANT'S MOTION FOR A JUDGMENT
                  OF ACQUITTAL SHOULD HAVE BEEN
                  GRANTED BECAUSE DR. CRONIN FAILED
                  TO COUCH [HER] OPINION AS TO CAUSE
                  OF DEATH "WITHIN A REASONABLE
                  DEGREE OF MEDICAL CERTAINTY."

     POINT III    DEFENDANT'S MOTION TO DISMISS THE
                  INDICTMENT    SHOULD   HAVE   BEEN
                  GRANTED BECAUSE THE PROSECUTOR'S
                  FAILURE TO PRESENT EXCULPATORY
                  EVIDENCE   TO    THE  GRAND   JURY
                  AMOUNTED TO TELLING THE GRAND JURY
                  A "HALF TRUTH."

     POINT IV     THE TRIAL COURT'S JURY INSTRUCTION
                  ON     CIRCUMSTANTIAL     EVIDENCE
                  PREJUDICED THE DEFENDANT (NOT
                  RAISED BELOW).

     POINT V      THE [FIFTY-FOUR-YEAR] AGGREGATE
                  BASE   CUSTODIAL    SENTENCE  WAS
                  MANIFESTLY      EXCESSIVE     AND
                  REPRESENTS A MISAPPLICATION OF
                  JUDICIAL SENTENCING DISCRETION.

                               (A)
                  THE TRIAL COURT MISAPPLIED ITS
                  DISCRETION   IN    FINDING   THAT
                  AGGRAVATING    FACTOR    N.J.S.A.
                  2C:44-1[(a)](2) WAS APPLICABLE.

                               (B)
                  THE TRIAL  COURT  MISAPPLIED ITS
                  DISCRETION      IN       IMPOSING
                  CONSECUTIVE SENTENCES ON COUNTS
                  ONE AND TWO.

Defendant raises the following contentions in a pro se supplemental

brief:

          POINT I

                 DEFENDANT'S  MOTION TO    DISMISS  THE
                 INDICTMENT SHOULD HAVE    BEEN GRANTED
                             3                             A-2758-14T3
                    BECAUSE THE PROSECUTOR'S FAILURE TO
                    PRESENT EXCULPATORY EVIDENCE TO THE GRAND
                    JURY AMOUNTED TO TELLING THE GRAND JURY
                    A "HALF TRUTH[.]"

            POINT II

                    TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
                    OBJECTING TO [THE MEDICAL EXAMINER'S]
                    TESTIMONY AS AN EXPERT WITNESS THUS
                    VIOLATING    DEFENDANT'S    SIXTH AND
                    FOURTEENTH AMENDMENT RIGHTS.

            POINT III

                    THE TRIAL COURT [ERRED] IN PROVIDING
                    IMPROPER JURY INSTRUCTIONS AND THEREFORE
                    PREJUDICED THE DEFENDANT.

     We decline to address defendant's contention in Point II of

his pro se supplemental brief.              "Our courts have expressed a

general    policy    against   entertaining      ineffective-assistance     of

counsel    claims    on   direct   appeal    because   such   claims   involve

allegations and evidence that lie outside the trial record." State

v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose,

129 N.J. 451, 460 (1992)).            "However, when the trial itself

provides an adequately developed record upon which to evaluate

defendant's claims, appellate courts may consider the issue on

direct appeal."       Ibid. (citing State v. Allah, 170 N.J. 269, 285

(2002)).    We are not persuaded that the record is sufficiently

developed to permit us to consider defendant's claim of ineffective

assistance of counsel on appeal.            Thus, we adhere to the practice

of deferring the issues of alleged ineffective assistance of
                         4                            A-2758-14T3
counsel to post-conviction relief proceedings where the necessary

factual record can be established, and focus on the remaining

contentions.

                                    I.

       We derive the following facts from the record.               At trial,

D.B.1 testified that at approximately 1:20 p.m. on January 7, 2013,

she and A.M. were sitting in A.M.'s car, which was parked near an

apartment building on Avon Avenue in Newark.           She saw a man, later

identified    as   Everett,   walking    in    the   area.    She   also   saw

defendant, who she knew, exit the building, drop his jacket, and

run up to Everett and strike him.             The two men began fighting,

Everett fell to the ground, and defendant began hitting and kicking

him.     At that point, A.M. began recording the fight on his cell

phone.    D.B. viewed the cell phone video during her testimony and

confirmed that it showed what she had witnessed.             She also viewed

a security camera video and confirmed it showed Everett walking

in the area before the fight.

       The seventy-three second cell phone video showed defendant

repeatedly kicking and stomping Everett in the head as Everett lay

face down and motionless on the ground.              Defendant then paused

briefly, rifled through Everett's pockets, resumed kicking and



1
   We use initials to protect the identities of the witnesses in
this case.
                            5                            A-2758-14T3
stomping him in the head, and then walked away and entered the

apartment building he had earlier exited.

      D.B. testified that at no time did she see Everett grab his

chest and fall over as if he was having a heart attack.            However,

the defense theory was that Everett died as a result of cardiac

arrest caused by acute Phencyclidine (PCP) intoxication, and the

video merely showed defendant kicking a dead body.

      A.M. testified that he saw Everett walk past his car and then

saw defendant run from the apartment building, go up to Everett,

punch him, and the two men began fighting.           Defendant got Everett

on the ground and began kicking and stomping him in the head.              At

this point, A.M. began recording the fight on his cell phone.              He

viewed the cell phone video during his testimony and confirmed it

showed what he had witnessed.

      E.K. testified that he was driving in the area and he saw

defendant and Everett standing and fighting in the middle of the

street.   Defendant was throwing punches at Everett and was winning

the   fight,   while   Everett   had   his   hands   up   trying   to   block

defendant's punches.     After driving past the two men, E.K. looked

in his rearview mirror, saw that Everett was on the ground, and

saw defendant stomping Everett in the head "like he was trying to

kill him."     He viewed part of the cell phone video during his



                                 6                                  A-2758-14T3
testimony that showed the vehicle he was driving and confirmed it

was his vehicle.

     S.E. testified that she was driving in the area and saw

defendant standing over Everett "in a rage" as Everett lay in the

street.   She exited her vehicle, went over to Everett, saw that

he was breathing and his chest was raising up and down, and saw

blood "gushing all over the ground."    She walked back to her car

and called the police and an ambulance.    She saw defendant enter

and then exit the apartment building with a white towel on his

head, and then walk down the street.   She viewed part of the video

during her testimony that showed the vehicle she was driving and

confirmed it was her vehicle.

     S.E. testified that when Police Officer Jimmy Rios from the

Newark Police Department arrived, she told him what she had

witnessed, gave a description of defendant, and pointed in the

direction where he had walked.    Officer Rios testified that he

proceeded in that direction and saw defendant walking down the

street.   He stopped defendant and saw that defendant was excited,

aggressive, "a little bit agitated[,]" and sweating profusely.

Defendant was carrying a white towel that appeared to have blood

stains on it and he had some scrapes and abrasions on his knuckles.

He placed defendant in his patrol vehicle and returned to the

crime scene, where Everett had been pronounced dead at 1:41 p.m.

                            7                               A-2758-14T3
     Detective Anthony Iemmello of the Essex County Prosecutor's

Office Homicide Task Force testified that he arrived at the scene

and saw Everett lying face down in the street.     Everett's teeth

were scattered on the ground, there was a large amount of blood

coming from his nose, mouth, and head, his jacket was pulled up,

and the flap on his right rear pocket had been lifted open as

though someone went through the pocket.   He also saw defendant and

noticed that defendant had bruised knuckles and blood on his hand.

He retrieved defendant's shirt and blood-stained black leather

boots and jeans.   Defendant stipulated that it was Everett's blood

on the boots.

     The State's expert in forensic pathology, Leanne Cronin,

M.D., performed an autopsy on Everett.    Dr. Cronin testified that

Everett had blunt force trauma injuries to the head, such as

abrasions and lacerations on his head; scleral hemorrhage in the

whites of his eyes; hemorrhage of the surfaces under his eyelids;

lacerations in his mouth; fractures of his nose and jaw; missing

teeth; subgaleal hemorrhage under his scalp; and hemoaspiration

of blood into the larynx and trachea extending to the main stem

bronchi.   Dr. Cronin found that Everett was breathing while he lay

face down in the street, and explained that in order to get blood

into the main stem bronchi there had to be a breath that pulled

the blood down into the windpipe.   Dr. Cronin also testified that

                             8                              A-2758-14T3
the scleral hemorrhage in the white of Everett's eyes indicated

he was alive at the time the blunt force trauma was administered,

as this type of injury only occurs when a heart is beating.                Dr.

Cronin opined that blunt force trauma to Everett's head caused a

fatal concussion that resulted in his death.

     Dr.   Cronin    acknowledged    that   a   toxicology   report    showed

Everett had acute PCP intoxication at the time of his death, and

that he was obese and had cardiovascular disease and an enlarged

heart; however, she opined that none of these factors contributed

to Everett's death.      Dr. Cronin explained that the mechanisms of

death from acute PCP intoxication and cardiovascular disease or a

heart attack differ from the mechanism of blunt force trauma to

the head causing a fatal concussion.         Dr. Cronin reviewed the cell

phone video during her testimony and testified that the type of

kicking and stomping of Everett's head shown in the video would

be the type of blunt force trauma to the head that caused the

fatal concussion resulting in his death.           Dr. Cronin also opined

that the video showed Everett was alive and breathing during the

recording.

     Dr. Cronin acknowledged that Dr. Lauren Thoma noted in her

neuropathology      report   there   was    nothing   grossly   wrong     with

Everett's brain.      Dr. Cronin explained that this did not change

her opinion as to cause of death

                                9                                     A-2758-14T3
          [b]ecause fatal concussion is a diagnosis of
          exclusion, meaning I've excluded any grossly
          observable injuries that may cause death. So,
          [Dr. Thoma's] findings of a negative brain are
          consistent   with   a   diagnosis   of   fatal
          concussion because, oftentimes, you don't see
          any gross evidence of a fatal concussion in
          the brain.

     Dr. Thoma did not testify. Instead, the following stipulation

was read to the jury:

          Dr. Lauren [Thoma] would have testified that
          she is a neuropathologist, and she examined
          the brain of [Terrance] Everett on . . . March
          20, 2013. She would have testified that she
          determined there were no pathological changes
          or trauma to the brain.

               Dr. Thoma would also testify that this
          finding is uncommon when there's blunt force
          trauma to the head, which causes a fatal brain
          concussion.   However, Dr. Thoma also would
          have   testified that there are some cases
          where this has occurred.

     Defendant's expert in forensic pathology and neuropathology,

Zhongxue Hua, M.D., testified that he reviewed the cell phone

video and could not conclude therefrom that Everett was alive

during the recording.     He reviewed the autopsy report, autopsy

photographs,   and   toxicology   and   neuropathology   reports,   and

concluded there was no convincing evidence that Everett was alive

immediately before or during the beating or during the video

recording, and no evidence that blunt force trauma to Everett's

head caused a fatal concussion that resulted in his death.          Dr.

Hua also testified that other possible causes of Everett's death
                           10                            A-2758-14T3
were not evaluated, such as cardiac arrest caused by acute PCP

intoxication.       He    noted   that   the   combination     of   acute   PCP

intoxication and severe heart disease "can be lethal."

      On cross-examination, Dr. Hua admitted that he never viewed

the security camera video or the eyewitness' statements to the

police, all of which confirmed that Everett was alive and walking

before the fight.        He also did not view photographs that showed

Everett sustained nasal and facial fractures and hemorrhaging.                He

conceded that all of this evidence would have been relevant to his

conclusions.      He also conceded there was evidence of blunt force

trauma to Everett's head and that the kicking of Everett's head

shown in the video was blunt force trauma that could cause a fatal

concussion.

                                       II.

      Defendant filed a pre-trial motion to bar admission of the

cell phone video, contending the video was not admissible under

N.J.R.E. 402 because it was not relevant to the material issue of

cause of death.      He argued that the video did not tend to prove

any material facts as to the two murder charges because there was

no   indication    that   Everett      was   alive   during   the   recording.

Defendant also argued the video was inadmissible under N.J.R.E.

403 because it was highly prejudicial.



                                  11                                   A-2758-14T3
     In a written opinion, the trial judge reviewed the elements

of murder under N.J.S.A. 2C:11-3(a)(1) and (2), and found the

video was relevant and probative, as it tended to prove that

defendant purposely or knowingly caused Everett's death or serious

bodily injury resulting in death through blows to the head that

led to a fatal concussion.   The judge determined that in light of

the experts' dispute as to the cause of Everett's death, the video

was material because it showed defendant repeatedly kicking and

stomping Everett in the head and was consistent with Dr. Cronin's

conclusion that blunt force trauma to the head caused a fatal

concussion resulting in Everett's death.

     The judge found that the video's probative value was not

substantially outweighed by the risk of undue prejudice.        The

judge noted that the video was only seventy-three seconds long

and, although disturbing and upsetting, it was not extremely bloody

or ghastly, or so inherently inflammatory as to detract the jurors

from fairly considering whether defendant was guilty or innocent.

The judge denied the motion, but ordered the State to mute the

volume, which the State did.

     On appeal, defendant reiterates in Point I that since there

was no credible evidence that Everett was alive during the video

recording, the video was not admissible under N.J.R.E. 402 because

it was not relevant to the material issue of cause of death.      In

                             12                            A-2758-14T3
the   alternative,     defendant   reiterates      that    the    video    was

inadmissible   under    N.J.R.E.   403   because    it    was    prejudicial.

Defendant adds that there was other non-inflammatory evidence

available, and the cumulative effect of playing the video several

times during the trial was unduly prejudicial, since the images

of the assault were capable of engendering disgust and hatred

towards him.

      We review a trial court's evidentiary determinations for

abuse of discretion.     State v. Harris, 209 N.J. 431, 439 (2012).

"A trial judge has broad discretion in making relevance and

admissibility determinations under N.J.R.E. 401, 402, and 403,

which we will not disturb, absent a manifest denial of justice."

Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif.

denied, 196 N.J. 466 (2008). Applying these standards, we conclude

that the judge properly admitted the cell phone video.

      N.J.R.E. 401 defines "relevant evidence" as "evidence having

a tendency in reason to prove or disprove any fact of consequence

to the determination of the action."       "Relevancy is tested by the

probative value the evidence has with respect to the points at

issue."    State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div.

1990).    As our Supreme Court has held:

           Evidence is relevant if it has a tendency in
           reason to prove or disprove any fact of
           consequence to the determination of the
           action. Relevancy consists of probative value
                             13                                       A-2758-14T3
           and materiality.     Probative value is the
           tendency of the evidence to establish the
           proposition that it is offered to prove. A
           material fact is one which is really in issue
           in the case. Thus, our inquiry focuses on the
           logical connection between the proffered
           evidence and a fact in issue. Evidence need
           not be dispositive or even strongly probative
           in order to clear the relevancy bar. It need
           only have some tendency to prove a material
           fact. The inquiry is whether the thing sought
           to be established is more logical with the
           evidence than without it.

           [State v. Buckley, 216 N.J. 249, 261 (2013)
           (citations omitted).]

The    relevancy   determination    requires   consideration   of    the

statutory elements that the State must prove.      Id. at 262.

       Generally, all relevant evidence is admissible.         N.J.R.E.

402.   Once a logical relevancy can be found to bridge the evidence

offered and a consequential issue in the case, the evidence is

admissible unless an exclusion is warranted under a specific

evidence rule.     State v. Burr, 195 N.J. 119, 127 (2008).    Relevant

evidence may be excluded if "its probative value is substantially

outweighed by the risk of . . . undue prejudice, confusion of

issues, or misleading the jury or undue delay, waste of time, or

needless presentation of cumulative evidence." N.J.R.E. 403. "The

mere possibility that evidence could be prejudicial does not

justify its exclusion."     State v. Swint, 328 N.J. Super. 236, 253

(App. Div.), certif. denied, 165 N.J. 492 (2000).


                               14                               A-2758-14T3
     "Evidence claimed to be unduly prejudicial is excluded only

when its 'probative value is so significantly outweighed by [its]

inherently inflammatory potential as to have a probable capacity

to divert the minds of the jurors from a reasonable and fair

evaluation' of the issues in the case."    State v. Long, 173 N.J.

138, 163-64 (2002) (quoting State v. Koskovich, 168 N.J. 448, 486

(2001)).   Although the evidence is likely to be unpleasant and

cause emotional stirring, that of itself does not render it

inadmissible.   State v. Sanchez, 224 N.J. Super. 231, 250 (App.

Div.), certif. denied, 111 N.J. 653 (1988) (citing State v.

Micheliche, 222 N.J. Super. 532, 545 (App Div.), certif. denied,

109 N.J. 40 (1987)).    The fact that evidence may be cumulative

does not render it inadmissible.      Micheliche, supra, 222 N.J.

Super. at 545 (citation omitted).

     Defendant was charged with first-degree murder under N.J.S.A.

2C:11-3(a)(1) and (2), which required the State to prove beyond a

reasonable doubt that he purposely or knowingly caused Everett's

death or serious bodily injury that then resulted in Everett's

death.   See Model Jury Charge (Criminal), "Murder (N.J.S.A. 2C:11-

3a(1) and 3a(2))" (2004).   The cell phone video showed defendant

repeatedly kicking and stomping Everett in the head as Everett lay

motionless on the ground.     There was evidence that Everett was

alive during the video recording and died from a fatal concussion

                             15                             A-2758-14T3
caused by blunt force trauma to the head.                Accordingly, the video

was relevant because it tended to prove that defendant purposely

or knowingly caused Everett's death or serious bodily injury that

then resulted in Everett's death.              Because defendant disputed the

cause of death, the video had significant probative value and was

material as to the cause of death, an issue that related directly

to the murder charges.

      The   video's     probative        value     was   not    so    substantially

outweighed by its inherently inflammatory potential as to have a

probable    capacity    to    divert     the     minds   of    the   jurors    from    a

reasonable and fair evaluation of defendant's guilt or innocence.

The fact that the video was disturbing and upsetting does not

detract from the fact that it was legitimately a part of the

State's proof of defendant's criminal state of mind.                          From the

video, the jury could infer that the attack was performed with

such ferocity that it could only have been the product of a knowing

purpose to cause death.

      The video afforded the jurors the opportunity to see the

incident as it occurred; assisted them in understanding the event

and   defendant's      acts   and    state       of   mind;     assisted      them    in

understanding and evaluating the eyewitness and expert testimony;

and its repeated playing afforded them several opportunities to

determine whether Everett was alive or dead during the recording.

                                    16                                         A-2758-14T3
We therefore find no merit to defendant's argument that the video

was inadmissible under N.J.R.E. 402 and N.J.R.E. 403.

                                       III.

     At the close of the State's case, defendant moved for a

judgment of acquittal on the murder charges.           He argued there was

no evidence as to how Everett collapsed or was seen prone on the

ground.      He   also   argued   that    Dr.   Cronin's   conclusions   were

assumptions and "[there was] nothing medically, forensically that

[could] substantiate that [defendant's] actions caused" Everett's

death.

     Relying on State v. Reyes, 50 N.J. 454 (1967), the judge

denied the motion, finding there was eyewitness testimony from

which the jury could reasonably infer that defendant beat Everett

to the ground.       The judge also found that the jury could find

beyond a reasonable doubt that defendant purposely or knowingly

caused Everett's death based on evidence that defendant repeatedly

kicked and stomped Everett in the head and that blunt force trauma

to Everett's head caused a fatal concussion that resulted in his

death.

     In Point II, defendant argues there was only speculative

proof that his actions caused Everett's death because Dr. Cronin

did not couch her opinion within a reasonable degree of medical

certainty.    We disagree.

                                  17                                A-2758-14T3
     We use the same standard as the trial judge in reviewing a

motion for judgment of acquittal at the close of the State's case.

State v. Bunch, 180 N.J. 534, 548-49 (2004).        We must determine

          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
          reasonable jury could find guilt of the charge
          beyond a reasonable doubt.

          [Reyes, supra, 50 N.J. at 459.]

     Under Rule 3:18-1, the court "is not concerned with the worth,

nature or extent (beyond a scintilla) of the evidence, but only

with its existence, viewed most favorably to the State."           State

v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif.

denied, 77 N.J. 473 (1978).        "If the evidence satisfies that

standard, the motion must be denied."       State v. Spivey, 179 N.J.

229, 236 (2004).

     The proof that defendant's actions caused Everett's death was

far from speculative.     Viewing the cell phone video and eyewitness

and expert testimony as a whole, and giving the State all favorable

inferences   therefrom,    there   was   ample   evidence   on   which   a

reasonable jury could find defendant guilty of first-degree murder

under N.J.S.A. 2C:11-3(a)(1) and (2) beyond a reasonable doubt.

Whether Dr. Cronin used the exact words "within a reasonable degree

of medical certainty" during her testimony is immaterial. As we
                            18                           A-2758-14T3
observed in Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46, 51

(App. Div. 1996) (quoting Aspiazu v. Orgera, 535 A.2d 338, 342

(Conn. 1987), it is not necessary for a testifying expert to use

the "'talismanic' or 'magical words' represented by the phrase

'reasonable degree of medical certainty.'"          Dr. Cronin's expert

opinion that blunt force trauma to Everett's head caused a fatal

concussion that resulted in his death was sufficient for any

rational jury to find defendant guilty of the murder charges beyond

a reasonable doubt.     State v. Martin, 119 N.J. 2, 8 (1990).

                                     IV.

     Prior to the trial, defendant filed a motion to dismiss the

indictment,   arguing   that   the    prosecutor   withheld   exculpatory

evidence, specifically, Dr. Thoma's neuropathology report and

evidence that Everett died from cardiac arrest caused by acute PCP

intoxication.   The judge denied the motion, finding that defendant

did not present evidence supporting his claim that Everett died

from cardiac arrest caused by acute PCP intoxication.          The judge

also found that even if such evidence existed, defendant did not

allege or show that the State had actual knowledge of it.                In

Point III and in Point I of his pro se supplemental brief,

defendant reiterates the argument made to the judge.

     "[O]ur courts have long held that a dismissal of an indictment

is a draconian remedy and should not be exercised except on the

                               19                                 A-2758-14T3
clearest and plainest ground."    State v. Williams, 441 N.J. Super.

266, 271-72 (App. Div. 2015) (quoting State v. Peterkin, 226 N.J.

Super. 25, 38 (App. Div.), certif. denied, 114 N.J. 295 (1988)).

"Dismissal is the last resort because the public interest, the

rights of victims and the integrity of the criminal justice system

are at stake."   State v. Ruffin, 371 N.J. Super. 371, 384 (App.

Div. 2004).

     The decision whether to dismiss an indictment lies within the

trial court's discretion, State v. Saavedra, 222 N.J. 39, 54 (2015)

and should not be overturned unless the court's discretion was

"clearly abused."   State v. Hogan, 144 N.J. 216, 229 (1996).     The

trial court's discretion should only be "disturbed . . . on the

'clearest and plainest ground'" and only when the indictment is

"'palpably defective.'"    Id. at 228-29 (quoting State v. N.J.

Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)).         As long as an

indictment alleges all of the essential facts of the crime, the

charge is deemed sufficiently stated.     State v. Fleischman, 383

N.J. Super. 396, 398-99 (App. Div. 2006), aff'd, 189 N.J. 539

(2007).

     The State is not required to present potentially exculpatory

evidence to the grand jury unless such evidence "directly negates

the guilt of the accused and is clearly exculpatory."         Hogan,

supra, 144 N.J. at 237.   The second requirement, that the evidence

                             20                              A-2758-14T3
is clearly exculpatory, demands "an evaluation of the quality and

reliability of the evidence [and its] exculpatory value . . .

should be analyzed in the context of the nature and source of the

evidence, and the strength of the State's case." Ibid.       The Court

cautioned that an indictment should be dismissed on this ground

"only after giving due regard to the prosecutor's own evaluation

of whether the evidence in question is 'clearly exculpatory[,]'"

id. at 238, and "only in the exceptional case will a prosecutor's

failure to present exculpatory evidence to a grand jury constitute

grounds for challenging an indictment[,]" id. at 239.

     The prosecutor did not withhold exculpatory evidence from the

grand jury.   At the time of the grand jury proceeding, Dr. Hua's

expert report was not available, and there was no evidence that

Everett died from cardiac arrest caused by acute PCP intoxication.

In   addition,    Dr.   Thoma's    neuropathology   report   was    not

exculpatory, as she did not dispute Dr. Cronin's conclusion as to

cause of death.     Because there was no evidence that directly

negated defendant's guilt that was clearly exculpatory, the judge

properly denied the motion to dismiss the indictment.

                                   V.

     The judge gave a circumstantial evidence charge that mirrored

Model Jury Charge, "Circumstantial Evidence" (1993), and used the

following illustration:

                              21                               A-2758-14T3
                A simple illustration may be helpful.
           The problem is proving that Little Johnny ate
           the blueberry pie. Direct evidence would be
           testimony indicating that Little Johnny's
           mother saw him eat the blueberry pie.
           Circumstantial evidence would be testimony
           indicating that Little Johnny was seated at
           the kitchen table with the blueberry pie in
           front of him, Mom leaves the kitchen to check
           on Little Johnny's sister, Little Jane.

                When Mom comes back to the kitchen,
           Little Johnny is still seated at the kitchen
           table. The blueberry pie is gone, but Little
           Johnny has crumbs all over his lips.       The
           former directly goes to prove the fact that
           Little Johnny ate the blueberry pie while the
           latter establishes facts from which the
           inference that Little Johnny ate the blueberry
           pie may be drawn.

     In Point IV, and Point III of his pro se supplemental brief,

defendant contends for the first time that the circumstantial

evidence charge was prejudicial because it amounted to a virtual

invitation to convict.     Defendant focuses on the blueberry pie

illustration and argues that "it posited a situation in which the

actor is clearly guilty and any denial by the actor clearly

ridiculous."

     "Appropriate and proper jury charges are essential to a fair

trial."   State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State

v. Reddish, 181 N.J. 553, 613 (2004)).   "The trial court must give

a comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts

that the jury may find."    Id. at 159 (quoting State v. Green, 86
                             22                            A-2758-14T3
N.J. 281, 287-88 (1981)).             "Thus, the court has an 'independent

duty    . . . to ensure that the jurors receive accurate instructions

on the law as it pertains to the facts and issues of each case,

irrespective      of   the   particular          language   suggested   by    either

party.'"       Ibid.     (quoting Reddish, supra, 181 N.J. at 613).

"Because proper jury instructions are essential to a fair trial,

erroneous instructions on material points are presumed to possess

the capacity to unfairly prejudice the defendant."                Ibid. (quoting

Bunch, supra, 180 N.J. at 541-42).

       When a defendant fails to object to an error regarding a jury

charge, we review for plain error.                State v. Funderburg, 225 N.J.

66, 79 (2016).         "Under that standard, we disregard any alleged

error 'unless it is of such a nature as to have been clearly

capable of producing an unjust result.'"                 Ibid. (quoting R. 2:10-

2).    "The mere possibility of an unjust result is not enough.                     To

warrant reversal . . . an error at trial must be sufficient to

raise 'a reasonable doubt . . . as to whether the error led the

jury to a result it otherwise might not have reached.'"                           Ibid.

(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

       There    was    no    error,        let   alone   plain   error,      in    the

circumstantial evidence charge.                  The judge gave a charge that

properly instructed the jury on the elements of circumstantial

evidence.      The judge emphasized it was the State's burden to prove

                                      23                                     A-2758-14T3
its case beyond a reasonable doubt, and that the jury could find

defendant guilty by either direct or circumstantial evidence, or

a combination of both types of evidence.      The judge further

instructed that defendant could be found not guilty by either

direct or circumstantial evidence, both types of evidence, or a

lack of evidence.   The judge's blueberry pie illustration caused

defendant no prejudice whatsoever.

                                 VI.

    At sentencing, the judge found three aggravating factors,

including N.J.S.A. 2C:44-1(a)(2) (aggravating factor two):

         The gravity and seriousness of harm inflicted
         on the victim, including whether or not the
         defendant knew or reasonably should have known
         that   the   victim   of   the   offense   was
         particularly vulnerable or incapable of
         resistance due to advanced age, ill-health,
         or extreme youth, or was for any other reason
         substantially incapable of exercising normal
         physical or mental power of resistance[.]

In applying aggravating factor two, the judge found as follows:

              [Defendant] knew, or reasonably should
         have known, that the victim of the offense was
         particularly vulnerable or incapable        of
         resistance. The evidence is incontrovertible
         that while the victim was down on the ground,
         face down on the ground, motionless and
         defenseless that defendant stomped his head
         over and over and over again. Frankly, I was
         shocked that with that ferocious stomping the
         victim's head wasn't split open because the
         attack was so ferocious. It was as if [the
         victim's] head was like a football? And like
         [defendant] was practicing place kicking.

                            24                            A-2758-14T3
     The judge then considered the factors in State v. Yarbough,

100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193,

89 L. Ed. 2d 308 (1986), and found that the crimes of murder and

theft and their objectives were predominantly independent of each

other, and the crimes involved separate acts of violence, or

threats or violence because the theft was related to reaching into

Everett's back pocket while the physical attack on Everett centered

on stomping his head.         The judge imposed a fifty-year term of

imprisonment on the murder conviction subject to NERA, and a

consecutive     four-year     term   of    imprisonment        on   the     theft

conviction.

     In Point V, defendant argues that aggravating factor two was

not supported by the evidence and constituted double counting.

Defendant     also   argues   that   the        judge   did   not   conduct       a

comprehensive    Yarbough     analysis     in    imposing     the   consecutive

sentence.

     We review a judge's sentencing decision under an abuse of

discretion standard.        State v. Fuentes, 217 N.J. 57, 70 (2014).

As directed by the Court, we must determine whether:

            (1) the sentencing guidelines were violated;
            (2) the aggravating and mitigating factors
            found by the sentencing court were not based
            upon competent and credible evidence in the
            record; or (3) the application of the
            guidelines to the facts of [the] case makes
            the sentence clearly unreasonable so as to
            shock the judicial conscience.
                              25                                          A-2758-14T3
           [Ibid. (quoting State v. Roth, 95 N.J. 334,
           364-65 (1984)).]

     Regarding    aggravating      factor   two    our   Supreme      Court   has

explained:

           When a sentencing court considers the harm a
           defendant caused to a victim for purposes of
           determining whether that aggravating factor is
           implicated, it should engage in a pragmatic
           assessment of the totality of harm inflicted
           by the offender on the victim, to the end that
           defendants who purposely or recklessly inflict
           substantial harm receive more severe sentences
           than other defendants.

           [State v.    Kromphold,       162      N.J.   345,   358
           (2000).]

Aggravating factor two is "broader and less precise" than serious

bodily injury, but enables the court to determine whether the

degree of harm to the victim warrants its application as an

aggravating factor.    Ibid.      Aggravating factor two "focuses on the

setting of the offense itself with particular attention to any

factors   that   rendered   the    victim   vulnerable     or   incapable      of

resistance at the time of the crime."          State v. Lawless, 214 N.J.

594, 611 (2013) (citation omitted).         Aggravating factor two "does

not limit 'vulnerability' to age or other physical disabilities

of the victim."    State v. O'Donnell, 117 N.J. 210, 218-19 (1989).

If "a victim is so constrained as to make physical resistance

virtually impossible, he or she has been rendered vulnerable within

the meaning of [N.J.S.A. 2C:44-1(a)(2)].            Id. at 219.
                            26                                          A-2758-14T3
      "It is well-settled that where the death of an individual is

an   element   of   the   offense,   that   fact   cannot   be   used   as   an

aggravating factor for sentencing purposes."          State v. Carey, 168

N.J. 413, 425 (2001) (citation omitted).           Sentencing courts must

avoid double-counting facts that establish the elements of the

relevant offense in making that determination.              Fuentes, supra,

217 N.J. at 74-75.        However, in the context of aggravating factor

N.J.S.A. 2C:44-1(a)(1),2 the Court reasoned:

                In appropriate cases, a sentencing court
           may justify the application of aggravating
           factor one, without double-counting, by
           reference to the extraordinary brutality
           involved in an offense. . . . A sentencing
           court may consider aggravating facts showing
           that [a] defendant's behavior extended to the
           extreme reaches of the prohibited behavior.

           [Id. at 75 (citations omitted).]

      Applying this reasoning to aggravating factor two, a court

may apply this aggravating factor and "focus[] on the setting of

the offense itself with particular attention to any factors that

rendered the victim vulnerable or incapable of resistance at the

time of the crime."         Lawless, supra, 214 N.J. at 611; see also

State v. Ramseur, 106 N.J. 123, 208 (1987) (holding that "cruel"

conduct may give rise to an aggravating factor in a manslaughter


2
   "The nature and circumstances of the offense, and the role of
the actor therein, including whether or not it was committed in
an especially heinous, cruel, or depraved manner[.]"    N.J.S.A.
2C:44-1(a)(1).
                            27                           A-2758-14T3
sentencing when the defendant intended to inflict pain, harm and

suffering in addition to intending death).

     The record amply supports the judge's findings on aggravating

factor two, and there was no double counting of the elements of

the murder offense.    Defendant viciously and repeatedly kicked and

stomped Everett in the head to the point where Everett was rendered

vulnerable   or   incapable   of     resistence   within    the    meaning   of

aggravating factor two.       O'Donnell, supra, 117 N.J. at 219.             The

violent attack on Everett more than justified the finding of that

aggravating factor.

     Lastly, there was no error in the imposition of a consecutive

sentence.    In   Yarbough,    supra,     100   N.J.   at   639,   the   Court

identified the relevant criteria for determining when consecutive,

as opposed to concurrent, sentences should be imposed.              The Court

noted that it is "senseless" to give a criminal free crimes.

Instead, a sentencing court should consider the factual content

of the crimes, including whether or not: (1) the crimes and their

objectives were predominantly independent of each other; (2) the

crimes involved separate acts of violence or threats of violence;

(3) 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; (4) any of

the crimes involved multiple victims; and (5) the convictions for

                                28                                    A-2758-14T3
which the sentences were imposed were numerous. Id. at 644. These

five   factors     are   to   be   applied   qualitatively,   rather   than

quantitatively.      A consecutive sentence can be imposed, even if a

majority of the Yarbough factors support concurrent sentences.

Carey, supra, 168 N.J. at 427-28.

       Here, the murder and theft had different objectives, the

first being to purposely or knowingly cause Everett's death or

serious bodily injury that then resulted in his death, and the

second being to      knowingly or unlawfully commit a theft from

Everett's person.        Each offense was separate and distinct and

required its own punishment to address the particular harm to

Everett.    When all of the sentencing factors are viewed, either

qualitatively or quantitatively, the judge properly imposed a

consecutive sentence.

       Affirmed.




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