                        NOT FOR PUBLICATION WITHOUT THE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-4223-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

OWEN R. HARSHANEY,

     Defendant-Appellant.
______________________________

              Submitted April 24, 2018 – Decided           August 6, 2018

              Before Judges Reisner, Hoffman, and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              13-07-0387.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Margaret R. McLane, Assistant
              Deputy Public Defender, of counsel and on the
              briefs).

              Michael   H.   Robertson,   Somerset   County
              Prosecutor, attorney for respondent (Paul H.
              Heinzel, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        In connection with a fire set at his former girlfriend's

home, defendant Owen Harshaney was indicted on three counts of
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-

3, and three counts of second-degree aggravated arson, N.J.S.A.

2C:17-1(a)(1).     A jury acquitted defendant of attempted murder and

second-degree arson, but convicted him of three counts of third-

degree arson, N.J.S.A. 2C:17-1(b)(1).                 The trial court sentenced

defendant to five years in prison for each count, but ordered that

the sentences be served concurrently.

     On this appeal, defendant challenges the conviction and the

sentence.      He presents the following points of argument:

              POINT I: THE POLICE DETECTIVE'S TESTIMONY
              ABOUT OBTAINING A WARRANT AND EXPLAINING WHY
              HE DID NOT SPEAK TO DEFENDANT BEFORE HIS
              ARREST WAS HIGHLY PREJUDICIAL AND VIOLATED
              DEFENDANT'S RIGHT TO DUE PROCESS. (Not Raised
              Below)

              POINT II: BECAUSE ONLY            ONE   FIRE     WAS   SET,
              MERGER IS REQUIRED.

              POINT III: THE STATUTORY MAXIMUM SENTENCE FOR
              THIS   THIRD-DEGREE   CRIME   IS   MANIFESTLY
              EXCESSIVE.

     Based on State v. Cain, 224 N.J. 410 (2016), which was decided

after   the    trial   in   this   case       took    place,    we   conclude   that

defendant's conviction must be reversed and the matter remanded

for retrial. In particular, a police witness's repeated references

to the State obtaining "warrants" based on "probable cause" and

other similar prejudicial testimony - plus the absence of any



                                          2                                 A-4223-15T2
curative instruction - amounted to plain error. R. 2:10-2; Cain,

224 N.J. at 414.1

                                    I

       To illustrate our legal conclusions, it is necessary to review

the    evidentiary   record    in   some    detail.    The   State   presented

undisputed evidence that the fire, which occurred on March 22,

2013, at a house on Brandywine Rise in Green Brook, was the result

of arson.    Although the ex-girlfriend, M.M.,2 was not at home at

the time of the fire, testimony from three of her family members,

who were at home, established that they were asleep at about 4:00

a.m. and woke up to find that the house was on fire.                 Testimony

from    forensic     witnesses      established       that   the     fire   was

intentionally set, by pouring gasoline next to the exterior of the

house and igniting it.        The fire was set on the west side of the

house, where M.M.'s bedroom was located.          All three family members

were able to escape from the burning house.




1
  As noted later in this opinion, while we vacate the conviction
and sentence, we reinstate the "no-contact" condition under which
defendant was originally released pending trial in this case.
Defendant's pending motion, seeking permission to file a
supplemental brief addressing the imposition of a permanent no-
contact order, is denied as moot.
2
  We use initials and first names to protect the privacy of M.M.
and her family.

                                        3                              A-4223-15T2
     The central issue in the case was whether defendant set the

fire.     Defendant's family lived in Dunellen, a mile or two from

M.M.'s home in Green Brook.         M.M. and defendant had a dating

relationship for several years while they were in high school.

Defendant was also friendly with M.M.'s family.            According to

M.M.'s father, defendant used to plow the M. family's driveway

during the winter.

     M.M. testified that at the end of their senior year of high

school,    she   told   defendant   that   she   wanted   to   end     their

relationship.     He wanted to continue the relationship, however,

and she continued to see him sporadically during their freshman

and sophomore years of college.      M.M. attended Rutgers University

in New Brunswick, while defendant attended Rutgers Newark.                She

would occasionally drive to Newark to visit him.

     At some point during their sophomore year of college, M.M.

broke off the relationship and blocked defendant's calls on her

cell phone.      However, during their junior year in college, M.M.

received a text message from defendant and realized that his cell

number was no longer blocked.       She admitted that his message was

innocuous, and she took no action to block his number again. She

initially testified that she did not hear from defendant again

until March 2013, when she was a senior in college.



                                    4                                A-4223-15T2
     That contact, which sparked the events surrounding this case,

occurred after midnight on March 22, 2013.      At that time, M.M. was

at a bar in Freehold with her current boyfriend, Ralph, and two

of their friends, Dan and James.          At about 12:45 a.m., M.M.

received a text message from defendant.        M.M.'s friends reacted

to the text with extreme disapproval, after she told Ralph that

she did not want to hear from defendant.         Unprompted, Dan took

M.M.'s cell phone, and started sending defendant text messages,

telling him to leave Ralph's girlfriend alone and threatening to

come up to Newark and fight him.       Then James texted defendant his

cell number and told defendant to call him.        M.M. overheard her

friends and defendant yelling at each other over James's cell

phone, and threatening to kill each other.        Ultimately, against

M.M.'s wishes, she and her three companions drove to Newark in

Dan's truck. However, according to M.M., when they reached Newark,

she became very upset and succeeded in convincing the men to leave

Newark without confronting defendant.

     On cross-examination, M.M. admitted that, as recently as

January 10, 2013, defendant had text messaged her with an offer

to plow the driveway of her family's home after a snow storm.       She

responded by thanking him but stating that it was not a priority.

She conceded that at that point, there was no animosity between



                                   5                           A-4223-15T2
them, and the text was not unwelcome.           M.M. admitted that she also

occasionally encountered defendant at Rutgers football games.

     M.M.   further   acknowledged       that    defendant's   initial   text

message to her on March 22, 2013 was "kind of . . . innocent."

However, Dan's response, which he typed on her cell phone, was a

string of hostile comments, threats, and obscenities. In his

responding text message, defendant stated, "I don't know what I

did . . . I don't know what you're talking about."          M.M. was unable

to explain how her companions knew that defendant lived in Newark

or what his address was.      She also could not recall if she saw

defendant in Newark, before her group decided to leave Newark.

     According to Ralph's testimony, when M.M. received the text

message on March 22, she seemed annoyed and told her companions

that the person who sent it would not "leave her alone."            At that

point, Dan took it on himself to send a series of text messages,

telling defendant that he knew where defendant lived and ordering

him to leave M.M. alone.     Their friend James then sent defendant

a text message with James's phone number, telling defendant to

call him.     This triggered a series of hostile phone conversations,

during which defendant exchanged threats with Ralph and James.

Ralph could not explain why the group decided to go to Newark in

search of defendant.     He stated that they had not really thought

it through.    On cross-examination, he conceded that M.M. told her

                                     6                               A-4223-15T2
companions where defendant lived, knowing that they intended to

go to Newark to pick a fight with defendant.              Like M.M., Ralph

denied seeing any police cars in Newark, and testified that the

group left Newark at M.M.'s insistence.

     In his testimony, Dan explained that their friend James was

a very emotional person, who was "screaming violently" during his

phone conversations with defendant.          Dan testified that when the

group reached Newark, he had a cell phone conversation with a

second person, who was with defendant.          This person was calm and

asked Dan to help him end the conflict. At that point, Dan decided

to end the incident and leave Newark with his companions.                      On

cross-examination, Dan conceded that the calm person on the phone

sounded like a police officer, which influenced his decision that

the group should leave Newark.           According to Dan, there were no

further phone calls or text message exchanges with defendant during

the ride home.

     James   testified   that   he   had    a   series   of   hostile     phone

conversations with defendant, in which each of them made threats

to "fight" and "kill" the other.           He explained that he and his

male companions went to Newark intending to fight defendant.

According to James, defendant told James what street he lived on,

and invited James and his group to come up and fight with defendant

and his group.   James testified that between 2:00 a.m. and 3:00

                                     7                                  A-4223-15T2
a.m., he received a call from a much calmer person, who also spoke

to Dan and convinced Dan that the group should go home.       James

testified that his cell phone received a call from defendant's

phone number at 2:59 a.m., which James did not pick up, and another

at 4:30 a.m., which he missed because by then he was at home,

asleep.

     Defendant's friend Timothy testified that a few minutes after

2:00 a.m. on March 22, 2013, defendant called Timothy to express

concern that "his ex-girlfriend's new boyfriend" might be looking

for him, intending to get into a fight.    Like defendant, Timothy

was from Dunellen.   However, he was temporarily living in Bayonne.

Defendant asked Timothy to come to his Newark apartment from

Bayonne to help him.      When Timothy arrived, fifteen or twenty

minutes later, defendant pulled up in a large black pickup truck

and parked near him.      Defendant was calm but upset about the

possibility of a fight.   Shortly after Timothy arrived, a Rutgers

University police officer drove up, and defendant walked over to

speak with him.   As defendant was talking to the officer, a white

truck entered the street and approached them from about fifty

yards away.   Defendant appeared to recognize the truck and pointed

it out to the officer.    According to Timothy, at that point, the

white truck turned down a side street, and the police officer



                                 8                          A-4223-15T2
drove off in pursuit.     Defendant and Timothy got into defendant's

truck and started following the police car.

     During the ride, Timothy heard defendant talking to someone

on his cell phone about having a fight.          Timothy testified that

he did not want to be involved in a fight.       Using defendant's cell

phone, he had two cell phone conversations with one of the people

defendant had been talking to; Timothy encouraged that person and

his companions to "just go home."       Timothy testified that those

conversations were "calm." He and the other person agreed that

"it's late, this is dumb, nothing good can come of fighting" and

agreed that they would all go home.

     According to Timothy, at that point, defendant was "[a]cting

pretty   calm."   When    they   returned   to   Halsey   Street,      where

defendant's   apartment   was    located,   Timothy   offered   to     drive

defendant back to Dunellen.      Defendant told Timothy that he wanted

to retrieve a TV stand from his Newark apartment, but he first

needed to drive back to his family's home in Dunellen because he

left his apartment key there.3     Timothy drove back to Bayonne, but

called defendant to make sure he got home to Dunellen safely.               He

also testified that at about 4:20 a.m., defendant's parents called




3
  M.M. testified that March 22, 2013 was during the Rutgers
University spring break.

                                    9                                A-4223-15T2
him, using defendant's cell phone.         Timothy identified a photo of

the black truck defendant was driving that night.

     Despite the nasty phone calls and text messages between

defendant and M.M.'s male companions, the State did not produce

any evidence that defendant made any threats against M.M. or that

he was angry with her.

     A couple of days after the fire, the police recovered security

videos from a drug store and a car repair business in the area of

M.M.'s home in Green Brook.           The drugstore video showed a dark

pick-up truck entering Route 22 West, about a half mile from M.M.'s

neighborhood, at 3:54 a.m.       The car repair video showed the same

pick-up truck exiting Route 22 West at 3:57 a.m. and turning onto

Cramer Avenue, a side street leading to Brandywine Rise.           At 4:03

a.m.,   the    video   showed   the    same   truck   emerging   from   the

neighborhood, "traveling towards [Route] 22, with its lights off."

Near the intersection with Cramer Avenue and Route 22, the truck's

headlights went on and the truck turned onto westbound Route 22.

The video also showed the police arriving from Route 22 westbound,

at 4:07 a.m.     The officer who testified about the video admitted

that the most direct route from Brandywine Rise to defendant's

family's home in Dunellen was to go east on Route 22, not west.

     Captain Schutta testified about his investigation of the

fire.   He confirmed that defendant was issued a ticket, after a

                                      10                           A-4223-15T2
red light camera showed his black pick-up truck going through a

red light in Newark on March 22, 2013, at 3:17 a.m.                       He also

testified that he obtained a communications data warrant for a

certain cell phone number (later confirmed as defendant's cell

phone),    after     learning   that   M.M.    had    received    "annoying      or

bothersome texts" from defendant.             He explained that a judge had

issued     the   warrant   after    reviewing        an    "affidavit"    and    an

application.       Schutta also confirmed that "by way of a Grand Jury

subpoena" he obtained defendant's bank records and determined that

defendant paid the ticket.         The red light video showed defendant's

black pick-up truck.        Prompted by the prosecutor, Schutta then

testified that he obtained "an arrest warrant for [d]efendant for

aggravated arson" and arrested him on May 17, 2013.

      There was no objection to any of that testimony.                    On the

other hand, the trial court did not issue any limiting instruction

explaining to the jury that neither a communications data warrant

nor   an    arrest    warrant   was    evidence       of    defendant's    guilt.

Moreover, Schutta's testimony about the "annoying or bothersome

texts" implied to the jury that the police had incriminating

evidence beyond that which the State had introduced at the trial.

His statement implied that M.M. had received other text messages

from defendant, in addition to the one admittedly "innocent"

message defendant sent her on March 22.

                                       11                                 A-4223-15T2
     Schutta   testified   that   when   defendant   was   arrested,   the

police seized his cell phone.       When defendant went through the

booking process, he was asked for pedigree information including

his phone number, and he gave the number of the phone from which

text messages had been sent to M.M. on March 22.

     The prosecutor then elicited from Schutta a long explanation

as to why he did not arrest defendant earlier than May 17, 2013,

and why he did not search defendant's truck or seize his clothing

and look for evidence of gasoline.         Schutta explained that the

police did not have "probable cause" to apply for a search warrant.

He also explained that the police did not want to ask defendant

for consent to search his truck until they had "significant

probable cause to make an arrest."        He also made multiple other

references to "probable cause" to apply for an arrest warrant.

     In the course of his testimony, Schutta also testified that

defendant became "a person of interest" when the police "learned

from [M.M.] about the unwanted text messages."             Again, Schutta

implied that there had been a history of inappropriate text

messages, when in fact defendant only sent M.M. one text message,

on March 22.    Additionally, in explaining, at length, how the

police obtained "probable cause" to obtain a search warrant,

Schutta implied to the jury that a judge had favorably evaluated

the State's case.   His comment about "significant probable cause

                                  12                              A-4223-15T2
to make an arrest" also implied to the jury that the police had

evaluated the evidence and believed defendant was guilty.

     At one point, the trial judge observed at side bar that

Schutta's thought processes and investigation strategies were not

relevant and the references to "probable cause . . . could be

prejudicial."    The judge warned the prosecutor to "stay away from

having [Schutta] testify about legal conclusions."          However, the

judge did not issue a curative or limiting instruction to the

jury.

     On   cross-examination,    Schutta   conceded   that    the     Sprint

"reveal records," concerning the location of cell phones, had a

disclaimer indicating Sprint does not guarantee the accuracy of

the location information.      Schutta was also confronted with the

red light video, and asked if it showed Yankees and Giants stickers

on defendant's truck.     He responded that there was "something

there, hard to decipher, but there's something there."             He later

admitted that there were stickers on the truck.

     Schutta was also confronted with one of the security videos,

showing that when the dark truck's lights turned on as it was

leaving M.M.'s neighborhood, an entire bar of lights illuminated

on its roof.    He conceded that in a photo of defendant's truck,

there were no lights on the roof.      He first insisted that on the

video from the red light camera there was "something" on the roof

                                  13                                A-4223-15T2
of the cab.    However, when shown the video, he admitted there was

no light "fixture" on the roof of the truck.

     On redirect examination, Schutta essentially admitted that

he could not say that the truck in the red light camera video was

the same as the truck on the car repair security video taken near

M.M.s neighborhood.4    He admitted that he could tell "it's some

type of truck.    Other than that, I don't know." He also admitted

that he could not "discern any type of color similarity" because

it was "at night, they're dark, it's dark out."

     The State's final witness was FBI Special Agent Eric Perry,

an expert in the field of cellular site analysis, and a member of

the Bureau's cellular analysis survey team (CAST). Perry testified

that he was able to trace the movement and location of defendant's

cell phone in the early morning hours of March 22, 2013, based on

calls and texts made to and from the phone.       He testified that

defendant's initial text to M.M., just before 1:00 a.m., came from

Dunellen.     Later texts and phone calls came from Newark, near

Halsey Street and near the red light camera.      Perry also traced

defendant's route from Newark back to Dunellen, from 3:18 a.m. and




4
  The prosecutor was trying to get Schutta to explain why it might
be hard to tell if the lights on the vehicle in one video were
different from the lights on the vehicle in another video.

                                 14                         A-4223-15T2
3:43 a.m., based on communications between defendant's cell phone

and cell phone towers along Route 78.

       Perry   further   testified   that   by   using   a   method    called

triangulation, he was able to place defendant's cell phone in the

area of M.M.'s house on Brandywine Rise between 3:59 a.m. and 4:02

a.m. on March 22, 2013.          He testified that he verified the

information by conducting a drive test to see which cell towers

served that neighborhood.      Perry also conducted a drive test for

the location of defendant's home in Dunellen.            He testified that

defendant's cell phone could not have been in that location between

3:59 a.m. and 4:02 a.m., because that area of Dunellen is not

served by the cell towers with which the phone was in contact in

that timeframe.

       On cross-examination, Perry admitted that his test drives

took place in April 2014, in the afternoon hours, while the

historical events took place almost a year earlier around 4:00

a.m.    He admitted that usage in the area at a particular time of

day could affect which cell tower a cell phone would contact.

Perry did not know if any of the towers had been repaired to

increase their signal strength in the year before his test drive.

He also conceded that determining a cell phone's location at any

particular time could depend on whether it was stationary or

whether it was in a moving car and how fast the car was moving.

                                     15                               A-4223-15T2
       Perry conceded he could not say that, at any one point in

time,   defendant's    cell   phone   "was    actually    at"   any   specific

location.    Perry also agreed with defense counsel's statement that

Perry's    "[FBI]   unit   never    says   someone's    in   this   particular

location unless you're doing an active pinging of them at that

moment."    In other words, Perry's methodology in this case was not

as precise as it appeared to be during his direct testimony. Perry

also admitted that the time on the car repair surveillance video

may have been inaccurate, as compared to the time reflected in the

phone company's records.       However, on redirect, he asserted that

he was confident that defendant's cell phone was in the vicinity

of Brandywine Rise between 3:58 and 4:02 a.m. on March 22, 2013.

       In his summation, the prosecutor once again repeated the

improper information from Schutta's testimony, telling the jury

that defendant was angry on March 22, because his "efforts to get

back    together    with   [M.M.]   and    constantly    texting    her"    were

"exposed" after he sent M.M. the text message on March 22.                 There

was no evidence that defendant was "constantly texting" M.M., and

there was no evidence that he was trying to "get back together"

with her.

                                     II

       For the first time on appeal, defendant contends that the

repeated references to search warrants and arrest warrants were

                                      16                               A-4223-15T2
irrelevant and prejudicial, and the trial court erred in failing

to give the jury a limiting instruction.    We review this issue for

plain error.   State v. Ross, 218 N.J. 130, 142-43 (2014).            That

is, we consider whether the error "is of such a nature as to have

been clearly capable of producing an unjust result."          R. 2:10-2.

In applying that standard, we must determine whether the claimed

error was "sufficient to raise a reasonable doubt as to whether

[it] led the jury to a result it otherwise might not have reached."

State v. Prall, 231 N.J. 567, 581 (2018) (quoting State v. Daniels,

182 N.J. 80, 95 (2004)) (alteration in original).

     Defendant's   argument   relies   heavily   on   Cain,   which   was

decided after the trial concluded.     In Cain, as in this case, the

prosecutor repeatedly elicited testimony about the issuance of

search warrants:

          Throughout the course of the trial, the
          prosecutor repeatedly referenced that the
          search of defendant's residence was authorized
          by a warrant issued by the court. In his
          opening statement, the prosecutor told the
          jury that "[a] search warrant was then
          obtained, authorized by a Superior Court
          judge."    The prosecutor returned to that
          theme, stating that information about the drug
          transactions with Hinson and Beckham was
          included in "an affidavit for a search
          warrant" and that "[a] search warrant [was]
          brought to a judge" because "[b]efore you can
          go   into   somebody's    home   under   those
          circumstances, you need the authority of a
          Superior Court judge." In the course of
          questioning    witnesses,    the    prosecutor

                                 17                              A-4223-15T2
          repeatedly elicited that a warrant was secured
          to   search    defendant's    residence    and
          occasionally elicited that a Superior Court
          judge issued the warrant.

          [Cain, 224     N.J.   at    416   (alterations   in
          original).]


     Referring to its previous decision in State v. Marshall, 148

N.J. 89, 240 (1997), the Court confirmed that a prosecutor may

appropriately "convey to the jury that the police were authorized"

to conduct a search, so the jurors are not left with the impression

that the police acted unlawfully. Cain, 224 N.J. at 433.        However,

the Court cautioned that "repeated statements that a judge issued

a search warrant for a defendant's home — when the lawfulness of

the search is not at issue — may lead the jury to draw the forbidden

inference that the issuance of a warrant by a judge supports the

rendering of a guilty verdict." Ibid. The Court found that "[t]he

constant drumbeat that a judicial officer issued a warrant to

search defendant's home had little probative value, but did have

the capacity to lead the jury to draw an impermissible inference

that the court issuing the warrant found the State's evidence

credible." Id. at 436.

     The Court noted with approval the holding in State v. Alvarez,

318 N.J. Super. 137 (App. Div. 1999), in which we reversed the

defendant's conviction based on multiple improper references to


                                 18                              A-4223-15T2
an arrest warrant and a search warrant. Cain, 224 N.J. at 434

(citing Alvarez, 318 N.J. Super. at 147); see also State v. Milton,

255 N.J. Super.         514, 519-21 (App. Div. 1992)             (reversing the

defendant's conviction due to improper references to a search

warrant).

       In this case, the prosecutor first told the jury about the

issuance of warrants in his opening statement.                 He then continued

the theme at considerable length during the testimony of Captain

Schutta.       As we previously described, the prosecutor repeatedly

elicited improper, irrelevant, and prejudicial testimony about a

judge issuing a warrant based on "probable cause," and about the

police determining that they had "strong probable cause" to obtain

an    arrest    warrant.      All    of    that    testimony    would   naturally

communicate to the jury that the police had decided that defendant

was guilty, and that a judge had favorably evaluated the State's

evidence.       Because the trial court did not issue a limiting

instruction, or explain the concept of probable cause, the jury

may   have     formed   an   exaggerated         and   inaccurate   view   of   the

testimony's significance.           See Alvarez, 318 N.J. Super. at 148.

       The repeated references went far beyond any need to assure

the jury that the police acted lawfully.                 As a result, the State

misplaces reliance on Marshall, and on other cases involving only

brief references to a warrant.                 See State v. Williams, 404 N.J.

                                          19                               A-4223-15T2
Super. 147, 168 (App. Div. 2008); State v. McDonough, 337 N.J.

Super. 27, 32-35 (App. Div. 2001).

     The State contends that defendant opened the door to the

testimony     by   attacking      the    thoroughness     of     the    police

investigation.     We disagree.

            The "opening the door" doctrine is essentially
            a rule of expanded relevancy and authorizes
            admitting evidence which otherwise would have
            been irrelevant or inadmissible in order to
            respond to (1) admissible evidence that
            generates an issue, or (2) inadmissible
            evidence admitted by the court over objection.
            The doctrine of opening the door allows a
            party   to   elicit   otherwise   inadmissible
            evidence when the opposing party has made
            unfair prejudicial use of related evidence.

            [State v. James, 144 N.J. 538, 554 (1996).]

The doctrine "has its limitations."        Ibid.     For example, the trial

court   may    exclude   evidence       when   its   probative     value      is

substantially outweighed by the risk of undue prejudice or where

it may mislead the jury.       Ibid. (quoting N.J.R.E. 403).

     In this case, the State presented testimony that the police

had obtained a search warrant to obtain M.M.'s father's clothing

and tested it for gasoline, because the father was in the house

at the time of the fire.    Defense counsel asked the witness if the

police had obtained a search warrant "to take any other clothing

items at all in the investigation."        The witness replied that they

had not.    Defense counsel's questions inferentially placed before

                                    20                                 A-4223-15T2
the jury the fact that the police never tested defendant's clothing

for accelerants.         However, the defense did not focus on the

thoroughness of the police investigation, and defense counsel did

not   make   "unfair     prejudicial     use"    of   information    about   the

investigation.      James, 144 N.J. at 554.

      In the context of this case, the reason why defendant's

clothing     was   not   tested   was   of   minimal    relevance.     Defense

counsel's limited questioning did not give the State license to

present the extensive, highly prejudicial testimony elicited from

Schutta. See Cain, 224 N.J. at 436 (citing N.J.R.E. 403).              Indeed,

the trial judge recognized the potentially prejudicial nature of

the information, but did not give a curative instruction.

      This was not a clear-cut case.            The State's evidence was not

overwhelming.      The improper references to the judicial approval

of the warrants, and the State's "strong probable cause," could

have made a difference to the outcome. See R. 2:10-2. In addition,

both Schutta and the prosecutor made inaccurate references to

defendant sending M.M. repeated unwelcome text messages, when

there was no evidence to support that assertion.              It is improper

for the prosecution to give the jury the impression that the State

has additional incriminating evidence that the jury has not heard.

See State v. Bankston, 63 N.J. 263, 271 (1973).



                                        21                              A-4223-15T2
       On the morning of the fourth day of deliberations, the jury

announced that they had reached an impasse.           After the judge sent

them    back   to   continue   deliberating,   they   reached   a   verdict.

However, we cannot overlook the distinct possibility that the

jury's evaluation of the evidence was tainted by the repeated

improper testimony and comments.

       Viewing the record as a whole, we find that the repeated

references to search warrants, an arrest warrant, and probable

cause, with no curative instruction from the trial court, had a

clear capacity to produce an unjust result.               See R. 2:10-2;

Alvarez, 318 N.J. Super. at 148; Milton, 255 N.J. Super. at 520-

21.    Thus, we reverse defendant's conviction, vacate the sentence,

and remand this case for a retrial.

       We are aware that while this appeal was pending, defendant

served a portion of his prison term, and he was recently released

on parole with a list of conditions including no contact with M.M.

or her family.       Because we have reversed defendant's conviction,

we also vacate his sentence including his parole supervision.

However, we reinstate the original "no-contact" condition under

which defendant was previously released pretrial.               Thus, as a

condition of his continued release pending the retrial, defendant

is to have no contact with M.M. or her family.          In continuing that

condition, we imply no view as to the merits of the State's case,

                                     22                              A-4223-15T2
but only acknowledge that "no victim contact" is normally included

as a condition of pretrial release in these types of cases.        On

remand, the trial court in its discretion may impose additional

conditions of release, if appropriate.

     Because we are reversing defendant's conviction, we do not

address defendant's sentencing arguments.     In the trial court,

defendant did not challenge the filing of three arson charges

based on his setting one fire.   Nor did he raise the merger issue.

Should defendant wish to raise a multiplicity argument on remand,

he may present that issue to the trial court by filing a motion

to dismiss portions of the indictment prior to the retrial.

     Reversed and remanded.   We do not retain jurisdiction.




                                 23                         A-4223-15T2
