                             NOT FOR PUBLICATION WITHOUT THE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-1592-17T4
                                                                A-2226-17T4

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                v.

HYKEEM T. MARTIN,

     Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                v.

DOMINIQUE WASHINGTON,
a/k/a DOMINQUE MALIK
WASHINGTON,

     Defendant-Appellant.
___________________________

                Argued February 26, 2020 — Decided May 5, 2020

                Before Judges Koblitz, Whipple and Gooden Brown.
            On appeal from the Superior Court of New Jersey, Law
            Division, Atlantic County, Indictment No.16-08-1897.

            Alyssa A. Aiello, Assistant Deputy Public Defender,
            argued the cause for appellant Hykeem T. Martin
            (Joseph E. Krakora, Public Defender, attorney; Alyssa
            A. Aiello, of counsel and on the brief).

            Richard Sparaco, Designated Counsel, argued the cause
            for appellant Dominique Washington (Joseph E.
            Krakora, Public Defender, attorney; Richard Sparaco,
            on the brief).

            Frank Muroski, Deputy Attorney General, argued the
            cause for respondent in A-1592-17 and in A-2226-17
            (Gurbir S. Grewal, Attorney General; Frank Muroski,
            of counsel and on the briefs).

PER CURIAM

      Defendants Hykeem T. Martin and Dominique Washington appeal from

the September 29, 2017 judgments of conviction after a jury found them guilty

of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1). We write

one opinion encompassing both appeals. Martin was sentenced to fifteen years

in prison, subject to an eighty-five percent period of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Washington was

sentenced to seventeen years in prison, subject to NERA. The convictions were

based on circumstantial evidence and both defendants were acquitted of murder.

After a thorough consideration of the issues raised on appeal, we affirm.


                                                                           A-1592-17T4
                                         2
                                    I. Facts.

      At about 9:40 p.m. on July 3, 2014, the New Jersey State Police discovered

the victim, later identified as Vincent Williams, lying face up on a dirt road with

gunshot wounds to his head, chest, neck and arm. A cellphone, several nine-

millimeter bullet casings and part of a broken rubber car antenna were found

near the body. A silver Infiniti, registered to the victim's mother, was parked

thirty-three feet away with its headlights on, windows down, engine running,

and one door open. The antenna piece did not belong to this car.

      A cellphone and grocery bags from the Dollar General were inside the car.

A container of ice cream that "wasn't completely melted yet" could be seen

inside one of the bags. About ten minutes from the scene was a Dollar General

store. Surveillance footage showed the victim entering the store at 7:55 p.m.

and leaving at 8:04 p.m.

      Cellphone records revealed that the victim called and texted defendant

Martin at various times on the date of the incident. One of the last calls the

victim made was to Martin's home phone at 8:07 p.m. It was too short for a

conversation. Cellphone tower records reflect that at 8:23 p.m., Martin's

cellphone pinged off a tower about six minutes away from where the victim's

body was found. Security footage obtained from a bar twenty minutes from the


                                                                          A-1592-17T4
                                        3
scene showed that on the evening of the incident, Martin and Washington were

together at 8:47 p.m.        Soon after, they met with two women nearby until

approximately 9:30 p.m. Around 10:00 p.m., security footage showed Martin

and his co-defendant Washington together again at a liquor store.          While

Washington had been wearing shorts in the footage from the bar, he was wearing

jeans in the liquor store.

      One of the victim's close friends testified that Martin owed the victim

money for a Honda Accord he purchased from the victim. On the day of the

incident, the friend drove the victim to Martin's house sometime in the

afternoon, but Martin was not home.

      On July 7, 2014, four days after the incident, a Honda Accord with a

missing antenna was towed from the side of the road in Vineland. Officers

learned the car was registered to Martin and obtained a warrant to search the car.

A piece of a broken antenna was found inside the car. An expert concluded that

the two broken antenna pieces "were at one time a single item." One of the

women Martin and Washington were with on the night of the incident testified

that the reception on the car radio was poor, consistent with a broken antenna.

Officers also found Martin's driver's license and shorts in the car.




                                                                         A-1592-17T4
                                         4
      That same day the Honda was towed, Washington provided a voluntary

taped statement to the police. He explained that he had been staying with

Martin, his cousin, for "close to two weeks," and around 5:00 or 6:00 p.m. on

the day of the murder, he and Martin were playing basketball and then decided

to go to Atlantic City, before coming back to the area to meet with two women.

      Neither Martin nor Washington testified at trial. A woman who lived

about a half mile from the crime scene and was interviewed by the police was

the only witness Martin called. She testified that between 9:30 p.m. and 9:45

p.m. on the night of the incident, she heard what she thought were fireworks,

until the police informed her that they were gunshots. Washington did not call

anyone.

      Martin raises the following arguments on appeal:

            POINT I: DEFENDANT'S CONVICTION FOR
            CONSPIRACY CANNOT STAND BECAUSE THE
            CONSPIRACY CHARGE WAS FUNDAMENTALLY
            FLAWED.

            A.  BY IMPORTING THE MERE PRESENCE
            PORTION OF THE    MODEL     ACCOMPLICE
            CHARGE INTO THE JURY INSTRUCTION    ON
            CONSPIRACY,     THE     TRIAL   COURT
            ENCOURAGED THE JURY TO ERRONEOUSLY
            EQUATE       CO-PARTICIPATION    WITH
            CONSPIRACY AND RETURN A VERDICT OF
            GUILT WITHOUT FINDING AN ACTUAL
            AGREEMENT.

                                                                      A-1592-17T4
                                      5
      B.  THE    JURY   INSTRUCTIONS    ON
      CONSPIRACY TO   COMMIT        MURDER
      IMPROPERLY EXPANDED THE RANGE OF
      POSSIBLE  CONSPIRACIES  BEYOND    AN
      AGREEMENT TO PURPOSEFULLY KILL.

      POINT   II:    DEFENDANT'S   RIGHT  TO
      CONFRONTATION AND    THE    RULES   OF
      EVIDENCE WERE VIOLATED WHEN THE TRIAL
      COURT PERMITTED THE STATE TO INTRODUCE
      INTO   EVIDENCE   TELEPHONE    RECORDS
      OBTAINED FROM AT&T AND ALLOWED [THE]
      DETECTIVE TO TESTIFY ABOUT HISTORICAL
      CELLULAR SITE DATA CONTAINED THEREIN.

      A.  THE STATE, AS THE PROPONENT OF THE
      EVIDENCE, FAILED TO CARRY ITS BURDEN TO
      ESTABLISH ITS ADMISSIBILITY AS A BUSINESS
      RECORD.

      B.  [THE DETECTIVE] DID NOT HAVE
      SUFFICIENT PERSONAL KNOWLEDGE OF
      HISTORICAL CELL TOWER DATA TO TESTIFY
      RELIABLY ON THE SUBJECT.

      POINT   III:   THE  STATE  PRESENTED
      INSUFFICIENT EVIDENCE TO PROVE A
      CONSPIRACY TO COMMIT MURDER.

Washington raises the following issues on appeal:

      POINT I: DEFENDANT WAS DENIED THE RIGHT
      TO A FAIR TRIAL DUE TO THE ERROR OF THE
      TRIAL COURT IN ADMITTING INTO EVIDENCE
      EXHIBITS THAT WERE NOT AUTHENTICATED
      UNDER N.J.R.E. 901.



                                                    A-1592-17T4
                                6
A.  THE SURVEILLANCE VIDEOS WERE NOT
AUTHENTICATED AND THEREFORE WERE
INADMISSIBLE IN EVIDENCE.

B.  TELEPHONE RECORDS OF THE VICTIM
AND THE CO-DEFENDANT WERE IMPROPERLY
ADMITTED INTO EVIDENCE UNDER THE
BUSINESS RECORDS EXCEPTION AND WERE
NOT AUTHENTICATED, THUS DEPRIVING THE
DEFENDANT THE RIGHT TO A FAIR TRIAL.

C.  TEXT    MESSAGES    PURPORTEDLY
BETWEEN THE VICTIM AND THE CO-
DEFENDANT WERE IMPROPERLY ADMITED
INTO EVIDENCE BECAUSE THEY WERE NOT
AUTHENTICATED.

D.   EACH POINT RAISED ABOVE IN ITS OWN
RIGHT IS GROUNDS FOR THE COURT TO
REVERSE THE DEFENDANT'S CONVICTION,
BUT IF A POINT IN AND OF ITSELF DOES NOT
RISE TO THE LEVEL TO FORM THE BASIS FOR
REVERSAL, IN THE ALTERNATIVE, THE
CUMULATIVE EFFECT OF THE EVIDENTIARY
ERRORS DENIED THE DEFENDANT THE RIGHT
TO A FAIR TRIAL.

POINT II: THE DEFENDANT WAS DENIED THE
RIGHT TO A FAIR TRIAL WHEN A DETECTIVE,
WITH NO PERSONAL KNOWLEDGE OF THE
DEFENDANTS, WAS PERMITTED TO TESTIFY AS
TO THE IDENTITY OF BOTH DEFENDANTS
PURPORTEDLY DEPICTED ON SURVEILLANCE
VIDEO.

POINT III: EVIDENCE THAT CO-DEFENDANT
MARTIN HAD A DISPUTE WITH THE VICTIM
OVER MONEY OWED TO THE VICTIM FOR THE

                                           A-1592-17T4
                   7
            SALE OF A VEHICLE WAS INADMISSIBLE
            HEARSAY, LACKED ANY FOUNDATION, AND
            WAS    UNDULY     PREJUDICIAL TO THE
            DEFENDANT, THEREBY DENYING HIM THE
            RIGHT TO A FAIR TRIAL.

            POINT IV:   THE TRIAL COURT ERRED IN
            FAILING TO GRANT THE DEFENDANT'S
            MOTION FOR A DIRECTED FINDING OF NOT
            GUILTY AT THE CONCLUSION OF THE STATE'S
            CASE IN CHIEF.

            POINT V:   THE TRIAL COURT ERRED IN
            DENYING    DEFENDANT'S  MOTION    FOR
            JUDGMENT         OF         ACQUITTAL
            NOTWITHSTANDING THE VERDICT AND NEW
            TRIAL BASED UPON THE INSUFFICIENCY OF
            THE EVIDENCE.

            POINT VI: THE SENTENCE OF SEVENTEEN
            YEARS FOR CONSPIRACY TO COMMIT MURDER
            WAS EXCESSIVE.

                                II. Jury Charge.

      When a defendant fails to object to a perceived error in the 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). "Plain error requires demonstration of 'legal impropriety in the charge

prejudicially affecting the substantial rights of the defendant and sufficiently

grievous to justify notice by the reviewing court and to convince the court t hat

                                                                         A-1592-17T4
                                        8
of itself the error possessed a clear capacity to bring about an unjust result.'"

State v. Montalvo, 229 N.J. 300, 321 (2017) (quoting State v. Chapland, 187

N.J. 275, 289 (2006)).

      A jury "charge must be read as a whole in determining whether there was

any error." State v. Torres, 183 N.J. 554, 564 (2005). The effect of any error

"must be evaluated in light 'of the overall strength of the State's case.'" State v.

Walker, 203 N.J. 73, 90 (2010) (quoting Chapland, 187 N.J. at 289).

      Martin argues that the trial court committed plain error when

incorporating into the model conspiracy charge "mere presence" from the model

accomplice liability charge. He contends that this created "an inherent danger

of confusion" for the jury, who were misled into believing that participation is

an element of conspiracy. He notes that by the court adding to the conspiracy

charge that "[t]here does not have to be [a] verbal agreement by all who were

charged," the court improperly suggested that an agreement is not necessary for

a conspiracy. Martin also argues that because the jury was instructed that

participation is "a circumstance to be considered with the other evidence in

determining whether he acted as a conspirator," such language "encouraged [the

jury] to sidestep the element of agreement."




                                                                           A-1592-17T4
                                         9
      While conspiracy does not require participation in a crime, the court

adapted the following language from the accomplice liability charge, instructing

the jury:

            To prove the defendant's criminal liability, the State
            does not have to prove the conspiracy by direct
            evidence or a formal plan to commit a crime. There
            does not have to be a verbal agreement by all who are
            charged.        The proof may be circumstantial.
            Participation and agreement can be established from
            conduct as well as the spoken word. Mere presence at
            or near the scene does not make one a participant in the
            crime, nor does the failure of a spectator to interfere
            make him a participant in the crime. It is, however, a
            circumstance to be considered with the other evidence
            in determining whether he acted as a conspirator.
            Presence is not in itself conclusive evidence of that fact.
            Whether presence has any probative value depends
            upon the total circumstances. To constitute guilt, there
            must exist a community of purpose, an actual
            participation in the crime committed. While mere
            presence at the scene of the perpetration of a crime does
            not render a person a participant in it, proof that one is
            present at the scene of the commission of the crime
            without disproving or opposing it is evidence from
            which in connection with other circumstance it is
            possible for the jury to infer that he acted as a
            conspirator to commit the crime. It depends upon the
            totality of circumstances as those circumstances appear
            from the evidence.

      The court incorporated the language with the explicit permission of all

parties. Outside the presence of the jury, the court stated: "I invite the parties'

attention to page [fifteen] of the charge and the paragraph beginning mere

                                                                          A-1592-17T4
                                       10
presence." After the court asked the parties for their "thoughts on the court's

draft and amendment to the conspiracy charge," they all stated that they had no

objection.    As noted by the State, both defense attorneys emphasized in

summation that mere presence is not proof of guilt.

      "[A]ppropriate and proper charges are essential for 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 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. (alteration in original) (quoting Reddish, 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 State v. Bunch, 180 N.J. 534, 541-42

(2004)). Instead of prejudice, the mere presence language strengthened the

defendants' argument. Indeed, there was no evidence of actual participation

despite the State's argument that Martin and Washington were near the scene.


                                                                           A-1592-17T4
                                        11
      Martin also argues that the trial court erred in failing to emphasize "that a

conspiracy to murder requires a purposeful agreement to kill." He asserts the

jury was improperly instructed that it need only find that the defendants had the

purpose to commit murder. Because murder consists of causing serious bodily

injury resulting in death as well as purposefully or knowingly killing, Martin

notes the jury was permitted to convict him of "conspiracy to murder on less

than the elements required by law."

      Under the facts of this case, this argument is strained. The victim was

shot five times in crucial areas of his body. The theoretical issue of whether a

conspirator might have sought only to commit serious bodily injury does not fit

with these facts. As directed by our Supreme Court, the trial court read to the

jury the model conspiracy charge when instructing "that the defendants' purpose

[to enter into the agreement] was to promote or facilitate the commission of the

crime of murder." See Model Jury Charges (Criminal), "Conspiracy (N.J.S.A.

2C:5-2)" (rev. Apr. 12, 2010); State v. R.B., 183 N.J. 308, 325 (2005)

(emphasizing "that, insofar as consistent with and modified to meet the facts

adduced at trial, model jury charges should be followed").

      The court did not charge accomplice liability. Although the jury could

have inferred, as the State argued, that Washington did the shooting because he


                                                                          A-1592-17T4
                                       12
changed his clothes, and Martin had a motive, no evidence clearly indicated

which defendant was the shooter. Without a charge of accomplice liability,

Model Jury Charges (Criminal), "Liability for Another's Conduct (N.J.S.A.

2C:2-6)" (rev. June 11, 2018) that if they both participated and shared the intent

to kill, they were both equally guilty, the jury might well have had a reasonable

doubt as to which defendant actually shot the victim.

      The conspiracy charge, which incorporated elements of accomplice

liability, was not a standard charge, but in the context of these facts helped the

defendants avoid a more serious guilty verdict. In light of defense counsels'

agreement to the charge, we discern no harmful error.

                                 III. Evidence.

      Martin and Washington reassert the objections they made at trial, arguing

that during the direct examination of the detective, the trial court erred in

admitting into evidence cellphone records under the business records exception

to hearsay, N.J.R.E. 803(c)(6), lay witness testimony as to historical site data,

N.J.R.E. 702, and unauthenticated surveillance videos, N.J.R.E. 901.

      Washington also raises for the first time on appeal the following

evidentiary issues, which he argues deprived him of his right to a fair trial: the

authenticity of the text message screenshot between the victim and Martin, the


                                                                         A-1592-17T4
                                       13
detective's lay opinion identifications and the testimony that Martin owed the

victim money for a car.

      "[A] trial court's evidentiary rulings are entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment."

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

State v. Harris, 209 N.J. 431, 439 (2012)). "Under that standard, an appellate

court should not substitute its own judgment for that of the trial court, unless

'the trial court's ruling "was so wide of the mark that a manifest denial of justice

resulted."'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero,

148 N.J. 469, 484 (1997)). "However, '[w]hen the trial court fails to apply the

proper test in analyzing the admissibility of proffered evidence,' our review is

de novo."    Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)

(alteration in original) (quoting Pressler & Verniero, Current N.J. Court Rules,

comment 4.6 on R. 2:10-2 (2012)).

                             A. Cellphone Records.

      To qualify as a business record, the proponent of the evidence must satisfy

three conditions:

            First, the writing must be made in the regular course of
            business. Second, it must be prepared within a short
            time of the act, condition or event being described.
            Finally, the source of the information and the method

                                                                           A-1592-17T4
                                        14
             and circumstances of the preparation of the writing
             must justify allowing it into evidence.

             [State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State
             v. Matulewicz, 101 N.J. 27, 29 (1985)); N.J.R.E.
             803(c)(6).]

These conditions "may be met by the kind of proof that would satisfy a trial

judge in a hearing under Rule 104(a), including proof presented in affidavit

form." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991

Supreme     Court   Committee      Comment      on   N.J.R.E.    803(c)(6)    (2020).

"[T]estimony of the custodian [of the records] or other qualified witness" is "not

require[d] . . . as a condition for admission of business records." Ibid.

      During a pretrial hearing, the State presented a sworn affidavit from the

cellphone carrier stating that the phone records were "kept in the ordinary course

of [its] business and [were] maintained and routinely relied on in the course of

the duties of the records custodian and the legal compliance analyst of that

organization." Despite both defense counsels' objections, the court concluded

that "the affidavit satisfie[d] . . . the trustworthiness and the reliability of these

documents." In finding the State satisfied its burden that the phone records

qualified as a business record, the court did not abuse its discretion.




                                                                             A-1592-17T4
                                         15
                             B. Historical Site Data.

      Pursuant to N.J.R.E. 702, "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwis e."

While our courts are silent, the trial court noted that the Third Circuit has held

that no expert testimony is needed in reporting a cell tower ping. See United

States v. Kale, 445 F. App'x 482, 485-86 (3d Cir. 2011) (holding that because

the lay witness was not testifying to defendant's precise location, but was rather

reading and interpreting "records detailing the locations of cell phone towers

used to carry out his phone calls," no "scientific, technical, or other specialized

knowledge" was needed to testify as to the operation of the towers).

      Martin argues the detective lacked the knowledge and expertise "to testify

to the location of the cell site tower[s] and which cellphone communicated with

each tower." The detective's testimony was limited to the information in his

report. Using the latitude and longitude coordinates, he was able to determine

what cell tower pinged when a call was made from a particular phone. We agree

with the trial court that doing so requires no special skill. The court acted within

its discretion when determining that an expert was not needed to testify.


                                                                           A-1592-17T4
                                        16
                            C. Surveillance Videos.

      "[A] videotape qualifies as a writing" under N.J.R.E. 801(e) and must be

"properly authenticated" before being admitted. State v. Wilson, 135 N.J. 4, 17

(1994). N.J.R.E. 901 provides that "[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter is what its proponent claims." The

authentication "rule does not require absolute certainty or conclusive proof. The

proponent of the evidence is only required to make a prima facie showing of

authenticity." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999). "Once

a prima facie showing is made, the writing or statement is admissible, and the

ultimate question of authenticity of the evidence is left to the jury." Ibid.

      "Authentication of a videotape is much like that of a photograph, that is,

testimony must establish that the videotape is an accurate reproduction of that

which it purports to represent and the reproduction is of the scene at the time the

incident took place." State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).

The photographer or videographer need not testify "because the ultimate object

of an authentication is to establish its accuracy or correctness." Wilson, 135

N.J. at 14.   Thus, "any person with the requisite knowledge of the facts

represented in the photograph or videotape may authenticate it." Ibid.


                                                                          A-1592-17T4
                                       17
      The detective explained that upon "retriev[ing]" and "secur[ing ] as

evidence" the surveillance videos, he verified the date and time on the videos by

checking his cellphone. Washington argues that the N.J.R.E. 901 requirements

were not satisfied because the detective failed to explain the manner in which

he retrieved the videos and presented no evidence to confirm the accuracy of his

cellphone. The trial court explained that "the issue raised by the defense goes

to the weight and credibility of the exhibit, not admissibility." We agree and

find no abuse of discretion.

                                D. Text Message.

      At trial, the parties disputed the admissibility of a screenshot of a text

message sent from the victim to Martin on the day of the incident as an exception

to hearsay. The text message was sent at 5:46 p.m. and read "yo ware you at."

The court admitted the screenshot under the N.J.R.E. 803(c)(3) state of mind

exception and, although an issue as to the authenticity of the image was not

raised, the court explained that it found "a sufficient basis as to its authenticity

and its retrieval and its reliability." Washington now argues this finding was

unsupported.

      A detective from the computer crimes investigation team testified that she

examined the victim's cell phone and then proceeded to take a photograph of the


                                                                           A-1592-17T4
                                        18
text message using a software called Eclipse. She explained that the software is

used when data cannot be digitally extracted from the phone. She then identified

the cell phone number and photograph of the text.

      We agree with the trial court and find this testimony sufficiently

authenticated the text message screenshot.

                                E. Identifications.

      For the first time on appeal, Washington argues that he was deprived of

his right to a fair trial when the trial court allowed the detective to identify him,

Martin, Martin's car, and the victim on the surveillance videos.

      When playing the surveillance videos from the Dollar General, bar and

liquor store, the State paused the videos at various times, asking the detective to

testify as to what he observed. In response, the detective identified by name the

victim, Martin, and Washington and testified as to what Martin and Washington

were wearing. He also identified the car in the videos as "Mr. Martin's vehicle"

and explained that he was unable to see a vehicle antenna on the car.

      Washington asserts that "[a]llowing a witness who is unfamiliar with a

defendant to opine on his resemblance to a subject in a video is impermissible."

He cites to United States v. Fulton, 837 F.3d 281, 297 (3d Cir. 2016), in which

the Third Circuit found that police officers' testimony regarding the physical


                                                                            A-1592-17T4
                                        19
comparisons between the suspect and bank robber on the surveillance video

failed to meet the helpfulness requirement under F.R.E. 701(b). One officer

interviewed the suspect for the first time nearly two months after the robbery,

while the other officer did not meet the suspect until after the trial began. Id. at

299. The court found that the officers did not have the sufficient level of

familiarity needed to render a lay witness opinion helpful and "were no better

equipped than the jurors to compare the suspect's appearance." Ibid.

      Washington also cites to the Ninth Circuit, which explained that "lay

witness testimony is permissible where the witness has had 'sufficient con tact

with the defendant to achieve a level of familiarity that renders the lay opinion

helpful.'" United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (quoting

United States v. Henderson, 241 F.3d 638, 650 (9th Cir. 2000)).

      Washington asserts that the act of identification is a question of fact for

the jury and "[t]he admission of any lay opinion by police officers or detectives

who did not observe the defendant at the scene would plainly invade upon the

province of the jury." Although defense counsel did not object to the testimony,

Washington claims that the admission of the testimony was an abuse of

discretion resulting in the denial of his right to a fair trial and therefore, the plain

error standard should be applied. See R. 2:10-2.


                                                                               A-1592-17T4
                                          20
      "Any error or omission shall be disregarded by the appellate court unless

it is of such a nature as to have been clearly capable of producing an unjust result

. . . ." Ibid. It 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." State v.

Macon, 57 N.J. 325, 336 (1971). Defendant carries the burden of showing plain

error. State v. Morton, 155 N.J. 383, 421 (1998).

      Lay opinion testimony is permitted when it is "rationally based on the

perception of the witness" and "will assist in understanding the witness'

testimony or in determining a fact in issue."        N.J.R.E. 701.    Lay opinion

testimony "is not a vehicle for offering the view of the witness about a series of

facts that the jury can evaluate for itself or an opportunity to express a view on

guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011). "[T]estimony

in the form of an opinion, whether offered by a lay or an expert witness, is only

permitted if it will assist the jury in performing its function." Ibid.

      The detective met Washington in person when interviewing him just four

days after the murder. The statement was taped and played at trial. The

detective identified Martin's car based on the personal knowledge he obtained

while conducting a search of the car shortly after the murder.




                                                                           A-1592-17T4
                                        21
      Washington has not met his burden of proving that any error in allowing

the detective to narrate the videotape was of such a nature as to have been clearly

capable of producing an unjust result.

                         F. Testimony of Money Owed.

      Washington takes issue with the victim's friend's testimony that on the day

of the incident, he drove the victim to Martin's house because it "[s]ound[ed]

like [Martin] owed [the victim] bread, he owned him money" for the Honda

Accord. Washington argues that this testimony lacked the necessary foundation

under N.J.R.E. 602. Since no evidence exists as to the friend's knowledge about

this transaction, he asserts that the testimony was mere speculation. While

acknowledging that this issue was not raised at trial, he argues that because the

testimony was used "to mislead the jurors to believe that [the victim] may have

been shot due to some dispute over payment for the brown Honda Accord," his

right to a fair trial was unduly impacted.

      N.J.R.E. 602 states that "a witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter. Evidence to prove personal knowledge may,

but need not, consist of testimony of that witness."




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      The friend explained that he originally sold the car in question to the

victim who then sold it to Martin. The friend drove the victim to Martin's house,

thereby establishing his personal knowledge of the victim's purpose in seeking

out Martin. Whether Martin actually owed the victim money was not important.

Rather, the testimony established, as the State argues, "that the victim was acting

as if Martin owed him money, thus explaining why the victim was looking for

him and why an altercation leading to the victim's death may have likely

ensued." The admission of the victim's friend's testimony is not plain error

warranting reversal.

                    IV. Motions for Judgment of Acquittal.

      Martin and Washington both argue that the trial court erred in denying

their pre and post-verdict motions for judgment of acquittal. They note that

other than the evidence establishing their presence together near the scene of the

crime, "there was simply no proof whatsoever of any agreement between the

parties to commit murder."

      A motion for a judgment of acquittal may be granted "if the evidence is

insufficient to warrant a conviction." R. 3:18-1; R. 3:18-2; State v. Reyes, 50

N.J. 454, 458-59 (1967). We review the denial of such motions de novo. State

v. Cruz-Pena, 459 N.J. Super. 513, 520 (App. Div. 2019). "We must determine


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whether, based on the entirety of the evidence and after giving the State the

benefit of all its favorable testimony and all the favorable inferences drawn from

that testimony, a reasonable jury could find guilt beyond a reasonable doubt."

State v. Williams, 218 N.J. 576, 594 (2014); Reyes, 50 N.J. at 458-59.

      Conspiracy requires the finding of an agreement between two or more

persons to commit a specific crime. N.J.S.A. 2C:5-2(a). The "agreement to

commit a specific crime is at the heart of [the] conspiracy charge." State v.

Samuels, 189 N.J. 236, 246 (2007).          "[M]ere knowledge, acquiescence, or

approval of the substantive offense, without an agreement to cooperate, is not

enough to establish one as a participant in a conspiracy." State v. Abrams, 256

N.J. Super. 390, 401 (App. Div. 1992). "Because the conduct and words of co-

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

conspiracy may be proven circumstantially." Samuels, 189 N.J. at 246 (quoting

State v. Phelps, 96 N.J. 500, 509 (1984)).

      In denying the defendants' motion for judgment of acquittal at the close

of the State's case, the court summarized the State's evidence supporting the

conspiracy charge as follows:

            [T]he State has pointed to several significant
            circumstances, chief among them [was] the presence of
            a bit of forensic evidence, an antenna associated with
            the vehicle own[ed] and operated by defendant Martin

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            at the scene of the crime within feet of the deceased.
            There is also the circumstance of the two defendants
            being in close contact with each other throughout the
            course of the day, of the homicide, and within the
            [forty-seven] minutes or so when the State contends
            that the homicide occurred, and the State points to
            circumstantial evidence of the [bar] video at 8:47 [p.m.]
            and thereabouts where the two defendants are found
            together as well as defendant Washington's statement
            that they were together at about [8:00 p.m.] that would
            be some direct evidence at least they're involved with
            each other. The State also points to the circumstances
            of changing of clothes. The inference which may be
            drawn therefrom is that there may be the secreting or
            removal of clothing that could shed some evidence on
            the case. Also the absence of cell phone usage
            immediately after the homicide, also speaking to the
            circumstances that the victim Williams was not a
            stranger to the defendant Martin pointing out, if not
            motive, context for the homicide that there was money
            owed over the transaction of a car.

      In the letter decision rendered in response to the post-verdict motions for

dismissal notwithstanding the verdict, the court emphasized that "although

entirely based on circumstantial evidence," based on the fact that, on the day of

the incident, the victim was looking for Martin, who was together with

Washington, coupled with the other evidence, could cause the jury to reasonably

conclude a conspiracy existed.

      We agree that a jury could reasonably find guilt beyond a reasonable

doubt. Based upon witness testimony, the security footage, and Washingt on's


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                                      25
statement to the police, no dispute exists that from 5:00 or 6:00 p.m. on the

evening of the incident, Martin and Washington were together. A jury could

infer that at 8:23 p.m., when Martin's phone pinged off a cell tower about six

minutes from the crime scene, defendants were still together. Furthermore, the

forensic evidence obtained from the car antenna pieces found at the scene and

inside Martin's car support a finding that Martin had been at the scene.

      While mere association is insufficient to establish a conspiracy, "[a]n

implicit or tacit agreement may be inferred from the facts and circumstances ."

State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992). Here, there was

more than association. Given that Martin and Washington were together on the

night of the incident, a reasonable inference may be drawn that they agreed to

commit or aid each other in the murder of the victim.

      We are satisfied that there was sufficient evidence for the jury to find

defendants' guilt beyond a reasonable doubt. Their motions for judgment of

acquittal made during and after trial were properly denied.

                            V. Motion for New Trial.

      Due to the lack of evidence, Martin and Washington also argue that the

trial court erred in denying their motion for a new trial.




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                                       26
      A trial court may grant a motion for a new trial "if required in the interest

of justice." R. 3:20-1. Unless "it clearly and convincingly appears that there

was a manifest denial of justice under the law," the court should not set aside

the jury's verdict. Ibid. Because "[a] motion for a new trial is addressed to the

sound discretion of the trial judge . . . the exercise of that discretion will not be

interfered with on appeal unless a clear abuse has been shown." State v. Armour,

446 N.J. Super. 295, 306 (App. Div. 2016) (quoting State v. Russo, 333 N.J.

Super. 119, 137 (App. Div. 2000)).

      For the reasons we affirm the denial of the defendants' motions for a

judgment of acquittal, we hold that no "manifest denial of justice" occurred here

to warrant reversal of the trial court's decision to deny the motion for a new trial.

See R. 3:20-1.

                                 VI. Sentencing.

      In reviewing a trial court's sentencing decision, we (1) "require that an

exercise of discretion be based upon findings that are grounded in competent,

reasonably credible evidence"; (2) "require that the factfinder apply correct legal

principles in exercising its discretion"; and (3) "exercise that reserve of judicial

power to modify sentences when the application of the facts to the law is such a

clear error of judgment that it shocks the judicial conscience." State v. Roth, 95


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                                        27
N.J. 334, 363–64 (1984). We must make sure that sentencing guidelines were

not violated, determine that findings on aggravating and mitigating factors were

"based upon competent credible evidence in the record," and decide whether

"the application of the guidelines to the facts of this case make the sentence

clearly unreasonable so as to shock the judicial conscience." Id. at 364–65.

      Washington argues that the trial court misapplied the facts of the case and

failed to properly weigh the aggravating and mitigating factors for sentencing in

giving him a sentence above the mid-range. Washington refutes the trial court's

application of aggravating factor three, "[t]he risk that the defendant will

commit another offense"; factor six, "[t]he extent of the defendant's prior

criminal record and the seriousness of the offenses of which he has been

convicted"; and factor nine, "[t]he need for deterring the defendant and others

from violating the law." N.J.S.A. 2C:44-1(a).

      Washington had two convictions in Pennsylvania: a 2009 conviction for

carrying a firearm in public in which he received a prison term of two to four

years in prison and a 2015 conviction for harassment. The court was particularly

concerned with Washington's prior involvement with firearms.




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      As for aggravating factor six, the serious nature of the instant offense, the

trial court gave it moderate weight because "conspiracy to commit murder is

among one of the most serious offenses under the criminal code."

      As for aggravating factor nine, the need to deter defendant and others from

violating the law, the court applied the greatest weight and found that Martin

and Washington "involved themselves in the planning of the murder of someone

with whom they apparently had illicit drug dealings who in the lawless milieu

of drug dealings [with] such violent and unnecessary behavior calls out for the

highest degree of deterrence." The officer who searched the victim's bedroom

found several items indicative of drug paraphernalia "including a scale,

individual white plastic bags that contained other bags, a money counter and a

heat sealing device." Washington points out that the State’s theory behind the

conspiracy involved a dispute over payment for a car, not an illegal drug

distribution. However, defendants argued in summation that the victim was a

drug dealer and the court did not err in inferring drug involvement.

      The court concluded that after weighing "the aggravating factors against

the absence of mitigating factors, . . . the aggravating factors clearly and

substantially preponderate over any other factor," and thus imposed a sentence




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                                       29
above the mid-range "in order to effectively punish, correct and deter

[Washington] from future lawlessness."

      The trial court explained its reasoning on the record for the application of

aggravating factors and a finding of no mitigating factors. The sentence does

not "shock the judicial conscience." Roth, 95 N.J. 365.

      Affirmed.




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