                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-1123-14T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ARTHUR E. MORGAN, III,

     Defendant-Appellant.
___________________________

              Submitted January 31, 2017 – Decided            March 21, 2017

              Before Judges Yannotti and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              12-06-1138.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Thomas G. Hand, Designated
              Counsel, on the briefs).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        A two-year-old girl was found dead in a stream.                 The child

had been strapped into a car seat and the car seat had been
weighted down with a tire jack.        An autopsy report concluded that

the child had drowned.       Just prior to her death, the girl had been

in the care of her father, defendant Arthur E. Morgan, III.

      A jury convicted defendant of first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2); second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a); and third-degree interference with

custody of a child, N.J.S.A. 2C:13-4(a)(1).            The jury also found

that defendant committed the murder by his own conduct and that

the   victim   was    less   than   fourteen   years   old,   which    is    an

aggravating factor under N.J.S.A. 2C:11-3(b)(4)(k).

      On the murder conviction, defendant was sentenced to life in

prison without eligibility for parole as required by N.J.S.A.

2C:11-3(b)(4).       As part of his murder conviction, defendant was

also sentenced to the prescriptions of the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.          On his conviction for interfering

with custody, defendant was sentenced to a consecutive five years

in prison with two and a half years of parole ineligibility.                The

conviction for endangering the welfare of a child merged into the

murder conviction.

      Defendant appeals his convictions and sentence.           We affirm.




                                      2                               A-1123-14T2
                                         I.

       The facts were established at trial.                  Defendant had been in

a dating relationship with I.B.1               I.B. described the relationship

as an on-again-off-again relationship that had lasted for over

three years.          Defendant and I.B. had been engaged, but I.B. had

recently broken off the engagement.                   When the relationship was

off,     defendant      obsessed       about   I.B.    and     would     contact   her

excessively.          For example, in the three days before the child's

death, defendant called I.B. over 600 times.

       Defendant and I.B. had a daughter, T.M.-G., who had been born

in 2009.    I.B. had primary custody of the daughter, and defendant

had the right to parenting time.               On November 21, 2011, defendant

had parenting time with his two-year-old daughter beginning at

approximately 2 p.m.         He was supposed to return T.M.-G. at 6 p.m.

The daughter, however, was never returned.

       Through witness interviews, cell phone records, and store

receipts,       the     police   developed       a    timeline      of    defendant's

activities on November 21, 2011.                 In the morning of that day,

defendant had visited a friend, J.B., and they had smoked marijuana

together.       Between 11:30 a.m. and 1:20 p.m., defendant called a

friend     in   California       and     the   Greyhound      Bus      Company.      At


1
  To protect privacy interests, witnesses and the victim will be
identified by initials.

                                           3                                  A-1123-14T2
approximately 2 p.m., defendant picked up his daughter.    As he was

leaving with T.M.-G., defendant yelled obscenities at I.B.          At

approximately 4 p.m., defendant called J.B. and asked if he wanted

to buy defendant's car for $300.    Shortly thereafter, he visited

McDonald's and then went to Shark River Park.     Witnesses saw a

car, matching the description of defendant's car, in the park

between 4:30 p.m. and 6 p.m.

     At approximately 6 p.m., defendant went to J.B.'s apartment

without the child.    The two men had a drink together and J.B.

described defendant as acting normal.     Defendant informed J.B.

that he was going to California and asked J.B. to take him to the

Asbury Park train station, which J.B. did at approximately 7 p.m.

     Meanwhile, when T.M.-G. was not returned on time, I.B. called

defendant to find out where he was.   I.B. last spoke to defendant

at approximately 6:30 p.m. on November 21, 2011. Defendant assured

I.B. that T.M.-G. was okay, and he was getting gas and would be

late.   When defendant did not return with the child by 7 p.m.,

I.B. repeatedly called defendant, but he did not pick up any of

her calls.   At approximately 10 p.m., I.B. called the police.

     Through surveillance videos, the police were able to track

defendant's movements after he was dropped off at the Asbury Park

train station.   From Asbury Park, defendant traveled to the Long

Branch train station and then to Penn Station in Newark.    At Penn

                                4                            A-1123-14T2
Station, defendant boarded a Greyhound bus to Richmond, Virginia.

Thereafter, defendant traveled from Virginia to California.

     On   November     29,   2011,   United   States   Marshals    arrested

defendant   in   San   Diego,   California.      Following   his    arrest,

defendant was given his Miranda2 warnings, he waived his rights,

and gave a video-recorded statement.            During that statement,

defendant admitted that he had taken his daughter to Shark River

Park on November 21, 2011.       He also admitted that he had placed

his daughter in a car seat, weighted down the car seat with a car

jack, and placed the child in a stream.         Defendant then left his

daughter in the stream.         Defendant claimed that the child was

still alive and sitting up when he left.

     Defendant stated that he had left his daughter in the stream

because he could not bear the thought that he would not be able

to see her due to conflicts with I.B.         In that regard, he stated

that thinking about what the child would go through "completely

made [him] crazy."      He also explained that he wanted to make the

final decision for his daughter and he was at peace because his

daughter was in Heaven.

     The car seat with the lifeless child had been removed from a

depth of approximately twenty inches of water.          At that location,


2
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                      5                             A-1123-14T2
the stream was approximately twenty-five feet wide and the seat

was directly in the center of the stream.     The seat had been on

its right side with the child's left arm and leg facing skyward.

     To try to determine how the car seat had come to that

location, the prosecutor's office conducted three re-enactment

scenarios. During the re-enactments, they used a car seat matching

the one in which the child had been found.      They then placed a

sandbag weighing thirty-nine pounds in the seat, which was the

weight of the child at the time of her death.        Finally, they

weighed the seat down with a car jack.

     In the first scenario, an officer waded from the bank into

the stream up to approximately eight inches of water and placed

the car seat in the water.    The car seat did not move.    In the

second scenario, the officer waded further into the stream to a

higher elevation of water and dropped the car seat into the stream.

The car seat rocked, but remained upright and thereafter did not

move.   In the third scenario, the police dropped the car seat from

the center of the bridge, the seat landed on its back in the water

and immediately sank without moving thereafter.

     Following defendant's interview, on December 1, 2011, a San

Diego sheriff's detective informed defendant that he was being

extradited to New Jersey.    Defendant responded, "I know that New



                                 6                          A-1123-14T2
Jersey doesn't have a death penalty so what am I looking at when

I get back there, what sentence?"

     As part of their investigation, the police also identified a

witness, C.T., with whom defendant had lived between July and

October 2011.     C.T. explained that she had allowed defendant to

live rent free with her.       She also stated that in July 2011,

defendant had told her that "he would rather see his daughter dead

than be with [I.B.]"    C.T. also informed the police that she had

lent defendant a car jack.      At trial, defendant stipulated that

the car jack lent by C.T. had been found attached to the child's

car seat.

     Prior to trial, defendant made a series of motions.       He filed

a motion for change of venue contending that there was presumptive

prejudice against him because of media coverage of the child's

death.    The trial court denied that motion without prejudice to

renewal during jury selection.      Defendant also filed a motion to

bar the prosecutor's re-enactment scenarios concerning how the car

seat came to be located in the river.     The trial court barred the

State    from   introducing   the   videotape   of   the   re-enactment

scenarios, but allowed a detective to testify as to the various

scenarios performed and their results.




                                    7                           A-1123-14T2
     Defendant also moved to suppress the statements he had given,

including his statement to the San Diego sheriff's detective.

After conducting a hearing, the trial court denied that motion.

     At trial, the State introduced testimony from more than twenty

witnesses.    Among those witnesses, the jury heard from C.T.               and

the San Diego detective.       The jury also heard redacted portions

of defendant's recorded statement.

     A    medical   examiner   also    testified    concerning    an   autopsy

conducted on T.M.-G. following her death.            The medical examiner

testified that the child had been healthy prior to her death and

that there was no evidence of prior injury or abuse.             The examiner

opined that the child had died as a result of drowning and

concluded that the child's death was a homicide.

     After hearing the evidence, a jury convicted defendant of

murder, endangering the welfare of a child, and interfering with

the custody of a child.         As already noted, defendant was then

sentenced to life imprisonment without the possibility of parole.

Defendant now appeals his convictions and sentence.

                                      II.

     On    appeal,    defendant       makes   six   arguments,     which      he

articulates as follows:

            POINT I – BECAUSE THE TRIAL COURT'S CHARGE TO
            THE JURY WAS FLAWED THE CONVICTIONS MUST BE


                                       8                               A-1123-14T2
         REVERSED AND THE MATTER REMANDED FOR A NEW
         TRIAL

         A.   The trial court erred when it ignored the
              requirements of Delibero and refused to
              charge the jury with the Defense's
              proposed modified charge on "evidence of
              mental disease or defect["]

         B.   The trial court erred when it refused to
              charge the jury with passion/provocation
              manslaughter

         C.   The trial court failed to charge the jury
              on voluntary intoxication (not raised
              below)

         POINT II – THE TRIAL COURT ERRED WHEN IT   DENIED
         DEFENDANT'S REQUEST TO EXCUSE JUROR        NUMBER
         [SIX] ONCE IT WAS DISCLOSED THAT JUROR     NUMBER
         [SIX'S] DAUGHTER WAS FRIENDS WITH ONE      OF THE
         WITNESSES

         POINT III – THE TRIAL COURT ERRED WHEN IT
         ALLOWED   [C.T.]    TO   TESTIFY    REGARDING
         DEFENDANT'S STATEMENT THAT HIS DAUGHTER WOULD
         BE BETTER OFF DEAD

         POINT IV – THE TRIAL COURT ERRED WHEN IT
         ADMITTED   DEFENDANT'S  STATEMENT  TO [THE
         SHERIFF'S DETECTIVE] INTO EVIDENCE

         POINT V – THE TRIAL COURT ERRED WHEN IT DENIED
         DEFENDANT A CHANGE OF VENUE

         POINT VI – THE SENTENCE WAS EXCESSIVE

Having reviewed the record and law, we find no merit in any of

defendant's arguments.   We will address each argument in turn.




                                9                            A-1123-14T2
     A.     The Jury Instructions

     Defendant contends that the jury instructions were defective

because they did not include (1) a modified diminished capacity

instruction, (2) a passion/provocation manslaughter charge, and

(3) an intoxicated defense charge.

     Correct and appropriate jury charges are essential to a fair

trial.      Reynolds    v.    Gonzalez,       172    N.J.   266,   288-89   (2002).

Moreover, a trial judge has the duty to ensure that the jury

receives accurate instructions on the law as it pertains to the

facts and issues in each case, "irrespective of the particular

language suggested by either party."                State v. Baum, 224 N.J. 147,

159 (2016).

     "Jury charges 'must outline the function of the jury, set

forth     the    issues,     correctly    state       the    applicable     law    in

understandable language, and plainly spell out how the jury should

apply the legal principles to the facts as it may find them

. . . .'"       Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v.

Portadin, 163 N.J. 677, 688 (2000)).                 Accordingly, "[an] alleged

error is viewed in the totality of the entire charge, not in

isolation."       State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.

2010) (quoting State v. Nero, 195 N.J. 397, 407 (2008)), certif.

denied, 205 N.J. 81 (2011).



                                         10                                 A-1123-14T2
       Generally, "an appellate court will not disturb a jury's

verdict based on a trial court's instructional error 'where the

charge, considered as a whole, adequately conveys the law and is

unlikely to confuse or mislead the jury, even though part of the

charge, standing alone, might be incorrect.'"                Wade v. Kessler

Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143

N.J. 235, 254 (1996)).       The focus is whether the instructions are

capable of producing an unjust result or prejudicing substantial

rights.     Fisch v. Bellshot, 135 N.J. 374, 392 (1994).

       Clearly   erroneous    instructions    are    "poor       candidates      for

rehabilitation under the harmless error philosophy."                      State v.

Loftin, 146 N.J. 295, 412 (1996) (quoting State v. Simon, 79 N.J.

191, 206 (1979)).     Nevertheless, "[c]ourts uphold even erroneous

jury   instructions    when     those    instructions      are    incapable       of

producing an unjust result or prejudicing substantial rights."

Fisch, supra, 135 N.J. at 392.

       1.   Diminished Capacity/State-of-Mind Instruction

       Defense counsel asked the court to include a modified version

of the "Evidence of Mental Disease or Defect" jury instruction.

Although    defense   counsel    acknowledged       that   he     would    not    be

presenting testimony regarding mental disease or defect, and that

neither a diminished capacity nor an insanity defense applied in



                                        11                                 A-1123-14T2
this case, he nevertheless asked for a modified "state-of-mind"

charge.

      In making that argument, defense counsel cited and relied on

the decision in State v. Delibero, 149 N.J. 90 (1997).              The

defendant in Delibero was charged with robbery and he introduced

evidence of his diminished capacity and insanity.      Id. at 94-95.

That evidence included testimony from two psychiatric experts,

both of whom testified that the defendant was suffering from a

mental illness at the time of the offense.         Ibid.   There, the

Court held that when a defendant presents evidence of insanity or

diminished mental capacity, the jury should be instructed to

consider such evidence in determining whether the State had proven

beyond a reasonable doubt that defendant possessed the requisite

mental state to be convicted of the offense charged.       Id. at 106-

07.

      Here, the trial court rejected defendant's requested "state-

of-mind" charge for three reasons.    First, the court reasoned that

given defendant's concession that he would not submit a mental

defense to the jury, the charge would be confusing and misleading.

Second, the court pointed out that the model charge on murder

sufficiently   and   correctly   addressed   the   state-of-mind    and

reasonable doubt issues.     Finally, the court distinguished the

facts in this case from the facts in Delibero.     Id. at 93-95.    The

                                 12                            A-1123-14T2
trial court then gave instructions that tracked the model charges

for murder, including an instruction on the requisite state of

mind and that the State had the burden to prove the requisite

purpose or knowledge beyond a reasonable doubt.

       We discern no error in the trial court's jury instruction as

it related to state of mind.                 Here, there was no evidence that

defendant suffered from a mental disease or defect affecting his

ability to act with the requisite purpose or knowledge.                     Defendant

offered no expert to support such a position.                   Instead, defendant

contends that evidence related to his mental defects included (1)

statements    he    made   to    the    police    during      his   interview,     (2)

references    that    he   suffered      from    sleep       deprivation,    (3)   his

obsessive phone calls, and (4) a reference to an attempted suicide

in June 2011.

       As the trial court correctly found, none of that evidence

rose   to   the    level   of    establishing      insanity      or   a   diminished

capacity.    See Id. at 92 ("Diminished capacity describes a disease

or defect of mind that may negate the mental state that is an

element of the offense charged.").                 Indeed, as already pointed

out,   defense     counsel      did    not    request    a    diminished    capacity

instruction.       Instead, he requested a sui generis "state-of-mind"

instruction that he crafted.            We agree with the trial court that



                                         13                                   A-1123-14T2
giving such an instruction in the context of this case would have

been potentially confusing and misleading.

     Finally, we note, that defense counsel was permitted to make

arguments about defendant's state of mind as it related to the

charges against him.   Thus, there is also no showing of an unjust

result or prejudice to any of defendant's rights.

     2.    Passion/Provocation

     Defendant also argues that the trial court erred in not

instructing the jury on the passion/provocation defense to murder.

We disagree.

     Passion/provocation manslaughter is a murder committed in the

heat of passion in response to provocation.         N.J.S.A. 2C:11-

4(b)(2).   Passion/provocation has four elements: "(1) reasonable

and adequate provocation; (2) no cooling off time in the period

between the provocation and the slaying; (3) a defendant who

actually was impassioned by the provocation; [and] (4) a defendant

who did not cool off before the slaying."    State v. Galicia, 210

N.J. 364, 379-80 (2012) (quoting State v. Josephs, 174 N.J. 44,

103 (2002)).   The first two elements are "objective[,]" and if

those elements are supported by the evidence, passion/provocation

manslaughter should be charged and the remaining two subjective

elements should be left to the jury to consider.    Josephs, supra,

174 N.J. at 103.

                                 14                         A-1123-14T2
     Here,    defendant     argues     that      he   killed   his    two-year-old

daughter   in    the   heat    of    passion      resulting     from      reasonable

provocation     by   the   child's    mother.         The   trial    court     denied

defendant's     request     for     such    an    instruction,       holding     that

provocation will not mitigate the murder of an innocent bystander.

The trial court also reasoned that the words of the mother, spoken

over the phone to defendant, were not sufficient to constitute

adequate provocation.         Finally, the trial court found that there

was no rational basis for a jury to determine that defendant's

response of murdering the child was proportionate to any words

allegedly spoken by the mother.

     We agree with the trial court on all three grounds.                     We have

previously held that "the killing of innocent bystanders does not

qualify as a homicide incited by provocation."                  State v. Lewis,

223 N.J. Super. 145, 151 (App. Div.), certif. denied, 111 N.J. 584

(1988).      That holding in Lewis applied and controlled here.

Defendant's argument that the Supreme Court may someday disagree

with our holding in Lewis is not persuasive.                   Indeed, the facts

here only underscore that passion/provocation does not apply to

the killing of an innocent child.

     Moreover, the facts presented in this trial did not constitute

adequate     provocation.         Furthermore,        there    was   no    evidence

indicating that defendant had an inadequate cooling off period

                                       15                                    A-1123-14T2
between the alleged provocation and slaying.                Defendant had his

daughter in his care for several hours before he put her in the

stream.    During that time, he made phone calls to a friend, as

well as to the child's mother.            The record here is simply devoid

of   any   evidence   of   either    a    proportional   provocation      or   an

inadequate time to cool off.

      3.    Voluntary Intoxication

      Defendant never requested an intoxication instruction at

trial.     Now, however, he contends that because there was some

evidence that he had smoked marijuana and purchased liquor, the

trial judge should have sua sponte instructed the jury on voluntary

intoxication.     We discern no plain error and, thus, we conclude

that there was no error capable of producing an unjust result.

      Here, while there was some evidence that defendant smoked

marijuana earlier in the day, there was no evidence that he was

under the influence when he killed his child.                   Consequently,

because     the   evidence     did        not   "'clearly     indicate'        the

appropriateness of [an intoxication] charge[,]" the trial judge

did not err by not giving such a charge.           State v. R.T., 411 N.J.

Super. 35, 48 (App. Div. 2009) (quoting State v. Savage, 172 N.J.

374, 397 (2002)), certif. denied, 205 N.J. 493 (2011).




                                         16                            A-1123-14T2
     B.     The Trial Court's Refusal to Excuse Juror Number Six

     At the beginning of the fourth day of testimony, juror number

six informed the trial judge that he had learned that a State's

witness who testified the day before was a classmate of his

daughter.    The trial court appropriately questioned the juror in

the presence of counsel.     The juror explained that he had just

learned that the witness had gone to school with his daughter and

his daughter had informed him of that fact the night before.       The

juror also disclosed that when the witness actually testified, he

did not recognize him, but he acknowledged that the witness had

visited his house in the past.   The juror then informed the court

that the connection of the witness to his daughter would in no way

affect his ability to be fair and impartial.

     Following this questioning, defense counsel requested the

judge to excuse juror number six.     Counsel could only explain that

defendant was not "comfortable now with this juror."       The trial

court properly found that there was no cause to dismiss juror

number six. The trial court also noted that the witness' testimony

was similar to another witness' testimony and really did not

address a disputed issue.

     Defendant now argues that had he known this information during

jury selection, he would have exercised a peremptory challenge.

Thus, his rights were adversely affected when the trial court

                                 17                           A-1123-14T2
refused to excuse juror number six.      We disagree.   Once trial

begins, jurors may be dismissed only for "good cause."     R. 1:8-

2(d)(1).   If a jury discloses information after he or she has been

sworn which, if revealed during selection, would have drawn a

peremptory challenge, there may be grounds for objection.        See

State v. Jackson, 43 N.J. 148, 162 (1964).

     Here, in contrast, juror number six did not fail to disclose

known information during the selection process.     Instead, juror

number six only became aware that one of the witnesses was a

classmate of his daughter the night after the witness testified.

Thus, the juror did not give incorrect or misleading information,

nor did he fail to disclose information during jury selection.

     Moreover, there is no showing of any prejudice to defendant.

Under questioning by the trial judge, the juror assured the court

and counsel that the connection between his daughter and the

witness would have no influence on his ability to be fair and

impartial.    There is nothing in the record to question that

assurance.

     C.    Defendant's Statements to C.T.

     Defendant challenges the trial court's admission of C.T.'s

testimony that defendant told her that "he would rather see his

daughter dead than be with her mother."     Defendant contends that

the prejudicial effect of that testimony outweighed its probative

                                18                          A-1123-14T2
value and the testimony should have been excluded under N.J.R.E.

403.    Defendant also contends that the trial court's instruction

to the jury concerning C.T.'s testimony was defective because it

failed to mold the instruction to the facts.

       We review a trial court's evidentiary rulings for abuse of

discretion.     State      v.   Nantambu,    221    N.J.    390,   402     (2015).

Accordingly, a trial court's evidentiary rulings will not be

overturned unless a manifest injustice has occurred.                      State v.

J.D., 211 N.J. 344, 354 (2012).            "To the extent [a] defendant's

argument . . . raises a question of law, . . . our review is de

novo and plenary."      Ibid.

       N.J.R.E. 403 provides that "relevant evidence may be excluded

if its probative value is substantially outweighed by the risk of

(a) undue prejudice, confusion of issues, or misleading the jury."

"The mere possibility that evidence could be prejudicial does not

justify its exclusion" under N.J.R.E. 403.            State v. Brockington,

439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State v. Long,

173 N.J. 138, 164 (2002)).        Instead, for evidence to be excluded

under N.J.R.E. 403, the probative value must be "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



                                     19                                    A-1123-14T2
v. Wakefield, 190 N.J. 397, 429 (2007) (quoting State v. Koskovich,

168 N.J. 448, 486 (2001)).

     Here, the trial court conducted a Rule 104 hearing before

allowing C.T. to testify.         The judge found that the statement was

a statement by a party opponent and was admissible hearsay under

N.J.R.E. 803(b).       The judge also found that the statement had

probative    value    to   the   disputed    issue   concerning     defendant's

purpose and motive for killing his daughter.               Finally, the judge

found that probative value was not substantially outweighed by any

potential prejudice.

     We discern no abuse of discretion in the trial court's ruling

allowing C.T. to testify.           Defendant's statements to C.T. went

directly to the disputed issue of defendant's motive and planning

of the murder.       That the statement was made four months prior to

the murder was a fact that the jury could consider in weighing the

value of the testimony, but it does not support the exclusion of

the testimony.

     After C.T. testified, the court instructed the jury on the

appropriate use of defendant's statement.                 In that regard, the

court's     instructions     followed       the   model    charge    concerning

statements of defendant.         Defendant now argues that the charge was

imbalanced because it focused the jury on defendant's intent



                                      20                                A-1123-14T2
without      instructions     about   considering          evidence      that    negated

defendant's intent.

       We discern no error in the trial court's instructions in this

case. Moreover, defense counsel did not object to the instructions

when   they    were   given    and    we    discern       no   plain    error     in    the

instructions.       State v. Funderburg, 225 N.J. 66, 79 (2016).

       D.     Defendant's Statement to the San Diego Detective

       Next,    defendant     contends      that    the    trial    court       erred    in

allowing      the   San   Diego   detective        to     testify      concerning       the

statement defendant made to the detective. During his extradition,

defendant asked the San Diego detective: "I know that New Jersey

doesn't have a death penalty, so what am I looking at when I get

back there, what sentence?"           Before trial, the court conducted a

hearing and found that the statement was admissible and denied

defendant's motion to suppress.                 Defendant did not challenge the

statement under N.J.R.E. 403 at the trial, but he now argues that

the statement's probative value is substantially outweighed by its

prejudicial effect and, therefore, it should have been precluded

under N.J.R.E. 403.

       Defendant's statement to the detective about his potential

sentence had probative value in that it tended to show he knew

what he had done and that what he had done was wrong.                       We discern

no   error     in   the   trial   court's        admission     of   that    statement.

                                           21                                     A-1123-14T2
Moreover, we discern no plain error because the admission of that

statement was not "clearly capable of producing an unjust result."

R. 2:10-2; State v. Green, 447 N.J. Super. 317, 325 (App. Div.

2016).

     E. The Motion for Change of Venue

     Defendant also contends that the trial court erred when it

denied his motion to change venue.   Before trial, defendant filed

a motion to change venue based on the presumptive prejudice against

him because of media coverage of the child's death.      The trial

court denied the motion without prejudice, permitting defendant

to renew the motion during jury selection.     Defendant, however,

never renewed his motion to change venue.

     We review a trial court's decision on a motion to change

venue under an abuse of discretion standard.   State v. Nelson, 173

N.J. 417, 476-77 (2002).       The trial court has discretion in

determining whether a change of venue is "necessary to overcome

the realistic likelihood of prejudice from pretrial publicity."

State v. Biegenwald, 106 N.J. 13, 33 (1987) (quoting State v.

Williams, 93 N.J. 39, 67-68 n. 13) (1983)).    Here, we discern no

abuse of discretion.     The trial court afforded defendant an

opportunity to renew the motion during jury selection.   Defendant

never took that opportunity.



                                22                          A-1123-14T2
     Further, there is no evidence in the record that suggests the

jury selection process was tainted by media publicity.           Each

potential juror was asked whether he or she had any knowledge of

the case prior to the trial.    Some answered "yes," but explained

that their recollection of the event was vague and limited.       The

trial court also asked each prospective juror whether he or she

could decide the case based solely on what will be presented during

trial.    Each selected juror answered affirmatively.

     F. The Sentence

     Finally, defendant argues that the trial judge erred in

imposing consecutive sentences for his convictions of murder and

interfering with the custody of a child. In that regard, defendant

contends that the sentencing judge failed to conduct an adequate

analysis of the Yarbough factors.    State v. Yarbough, 100 N.J. 627

(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.

2d 308 (1986).    We reject this contention.

     Appellate review of sentencing decisions is deferential and

governed by an abuse of discretion standard.      State v. Blackmon,

202 N.J. 283, 297 (2010). "The reviewing court must not substitute

its judgment for that of the sentencing court."    State v. Fuentes,

217 N.J. 57, 70 (2014).   An appellate court must affirm a sentence

unless:



                                23                           A-1123-14T2
            (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."

            [Fuentes, supra, 217 N.J. at 70 (alteration
            in original) (quoting State v. Roth, 95 N.J.
            334, 364-65 (1984)).]

Whether a sentence violates sentencing guidelines is a question

of law that we review de novo.         State v. Robinson, 217 N.J. 594,

603-04 (2014).

       In Yarbough, the Court set forth the factors to be considered

when    deciding   whether   to   impose   consecutive    or    concurrent

sentences.    Yarbough, supra, 100 N.J. at 643-44.          The Yarbough

factors essentially focus upon "the nature and number of offenses

for which the defendant is being sentenced, whether the offenses

occurred at different times or places, and whether they involve

numerous or separate victims."      State v. Carey, 168 N.J. 413, 423

(1989).    The "no free crimes" guideline set forth in Yarbough

"tilts in the direction of consecutive sentences because the Code

focuses on the crime, not the criminal."        Ibid.

       Considering these criteria, the trial court properly imposed

consecutive    sentences     because     the   court    found   that    the

interference with custody conviction was a separate crime from the


                                   24                              A-1123-14T2
murder conviction.   We discern no abuse of discretion in the

imposition of a consecutive sentence in this matter.

    Affirmed.




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