                                NOT FOR PUBLICATION WITHOUT THE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-0936-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRET A. HENDERSON,

     Defendant-Appellant.
___________________________

                    Submitted March 11, 2019 – Decided April 18, 2019

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 16-04-
                    0355.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John A. Albright, Designated Counsel, on
                    the briefs).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Dana R. Anton, Senior
                    Assistant Prosecutor, on the brief).
PER CURIAM

      A Gloucester County grand jury charged defendant Bret Henderson with

second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2), and third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(8).       Before turning to defendant's

specific arguments, we briefly review the evidence at trial.

                                        I.

      The State contended that defendant's history with his estranged wife, J.B.,

was the motive for setting fire to what had been the couple's marital home.

During colloquy before trial, the prosecutor indicated his intent to introduce

evidence of the frayed relationship, including the parties' appearance in Family

Court two days before the fire, during which the judge awarded J.B. possession

of the house. Without conducting a N.J.R.E. 104 hearing or analysis under State

v. Cofield, 127 N.J. 328, 338 (1992), the judge ruled the evidence was

admissible, as well as "any threats [defendant] made to burn the car and house,"

finding the evidence was relevant to "motive or . . . intent."

      Before the jury, the evidence revealed that in the morning of June 14,

2015, emergency personnel responded to defendant's home, which was ablaze.




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                                        2
Three hours later, the fire was suppressed, but the home was in ruin. One of the

firefighters received serious burns to his neck that required medical treatment.1

      A subsequent investigation revealed that the fire was "set" with two points

of origin, suggesting arson. Additionally, videos recovered from a camera

mounted on a neighboring home, and security camera footage from a nearby gas

station, depicted a man who shared defendant's physical characteristics walking

down the street toward the gas station, using a gas pump, and returning toward

the home.

      Because the State did not provide discovery regarding any out-of-court

identification of the man depicted in the video, defendant moved to exclude any

identification of the person in the video by a State's witness. The judge granted

the motion, holding:

            The witness[es] . . . cannot place themselves in the
            shoes of being the finder of fact. It's up to the jury to
            determine whether that is . . . defendant in the video, so
            I am going to grant [defendant's] [m]otion to [s]uppress
            the identification of . . . defendant from the video.

                   In other words, they can't look at the video and
            say I know who that is.




1
   This firefighter was the victim in the aggravated assault count of the
indictment.
                                                                         A-0936-17T4
                                        3
      Despite this order, the investigating detective called by the State as a

witness testified that he secured the videos and was "able to see . . . defendant

on two separate – –[.]" Defense counsel immediately objected, and at sidebar,

moved for a mistrial. The judge denied the motion, but required the State to

reconfirm with its witnesses that they were not permitted to identify defendant

in the video. The judge issued the following curative instruction to the jury:

            [Y]ou're to disregard the detective's inference as to
            who's in the video. You will be given an opportunity
            to see the video and the jury has the responsibility of
            making the findings of fact[] in order to be able to
            determine who's in that video. That's up to you. You
            are the finders of fact.

      J.B. testified about her tense domestic history with defendant, including a

prior threat defendant made that "he would set the truck on fire and drive it

through the house." J.B. vacated the house prior to the fire, and, on cross-

examination, defense counsel questioned J.B. whether she paid the gas bill for

the house. Apparently, the non-payment of the bill resulted in defendant being

unable to switch the service into his name.

      Before re-direct, at sidebar, the judge permitted the State, over defendant's

objection, to question J.B. about her nonpayment of the bill.          Both sides

acknowledged that the questioning would likely elicit evidence of specific acts

by defendant. Without any Cofield or N.J.R.E. 104 analysis, the judge permitted

                                                                           A-0936-17T4
                                        4
the questions "to rebut why this particular bill wasn't changed . . . because it's

been brought out before the jury." J.B. then testified that she did not pay the

bill because defendant would "turn the heat all the way up and leave the windows

wide open. And he would turn the oven on high, with the door open, just

running. So you'd walk into a sweltering house with the windows wide open."

      During summation the prosecutor suggested that based on defendant's

height and body type, "there [was] reason to believe that the individual in the

video is . . . defendant." There was no objection.

      The jury convicted defendant of the lesser-included offense of third-

degree arson, N.J.S.A 2C:17-1(b)(2), and aggravated assault.          The judge

sentenced defendant to an aggregate term of four-years' imprisonment.

      On appeal defendant asserts the following:

            POINT I

            THE LOWER COURT'S FAILURE TO GRANT A
            MISTRIAL, WHEN THE POLICE OFFICER
            IDENTIFIED DEFENDANT AS THE MAN
            APPEARING    ON  SURVEILLANCE     VIDEO
            DURING HIS TESTIMONY CONTRARY TO THE
            COURT'S RULING THIS [SIC] OUT-OF-COURT
            IDENTIFICATION WAS INADMISSIBLE [AND]
            DEPRIVED DEFENDANT OF A FAIR TRIAL.




                                                                          A-0936-17T4
                                        5
            POINT II

            THE PROSECUTOR'S IDENTIFICATION OF
            DEFENDANT AS THE MAN IN THE VIDEO IN
            SUMMATION       FOLLOWING      THE    POLICE
            OFFICER'S      IMPROPER        OUT-OF-COURT
            IDENTIFICATION OF DEFENDANT BEFORE THE
            JURY [WAS] IN VIOLATION OF THE COURT'S
            RULING [AND] DEPRIVED DEFENDANT OF A
            FAIR TRIAL. (Not Raised Below)

            POINT III

            THE TRIAL COURT'S ADMISSION OF N.J.R.E.
            404(B) EVIDENCE, INCLUDING ALLEGED
            THREATS BY DEFENDANT AND DEFENDANT
            LEAVING THE HEAT AND STOVE TURNED ON
            TO DRIVE UP GAS BILLS WAS ERRONEOUS,
            UNSUPPORTED BY AN ADEQUATE LIMITING
            INSTRUCTION[] AND DEPRIVED DEFENDANT
            OF A FAIR TRIAL.

            POINT IV

            THE FOUR-YEAR SENTENCE IMPOSED WAS
            MANIFESTLY EXCESSIVE AND AN ABUSE OF
            THE LOWER COURT'S DISCRETION.

Having considered these arguments in light of the record and applicable legal

standards, we affirm.

                                        II.

      Motions for mistrial are "addressed to the sound discretion of the [trial]

court; and the denial of the motion is reviewable only for an abuse of discretion."


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                                        6
State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019) (alteration in

original) (quoting State v. Winter, 96 N.J. 640, 647 (1984)).              "The same

deferential standard that applies to the mistrial-or-no-mistrial decision applies

to review of the curative instruction itself." Ibid. (citing Winter, 96 N.J. at 647).

An abuse of discretion will only be found when the judge denies the mistrial and

provides an instruction when "the vice is plainly ineradicable by an instruction

to the jury . . . ." Winter, 96 N.J. at 647.

      In Herbert, we identified three factors to assist our review of the trial

court's decision to issue a curative instruction instead of granting a motion for a

mistrial or new trial. 457 N.J. Super. at 505-08. First, we consider "the nature

of the inadmissible evidence the jury heard, and its prejudicial effect" because

"[e]vidence that bears directly on the ultimate issue . . . may be less suitable to

curative . . . instructions than evidence that is indirect . . . ." Id. at 505. However,

the Court has said that even highly prejudicial evidence, like an expert opining

about the defendant's guilt, is amenable to a curative instruction. See State v.

Papasavvas, 163 N.J. 565, 614 (2000) (holding that the expert psychologist's

opinion that defendant was guilty was cured by a swift, firm, and specific jury

instruction).




                                                                               A-0936-17T4
                                           7
      Second, we examine the "timing and substance" of the curative

instruction, with prompt, firm, and specific instructions being preferred.

Herbert, 457 N.J. Super. at 505-06. A curative instruction will generally "pass

muster" so long as it is "firm, clear, and accomplished without delay." State v.

Vallejo, 198 N.J. 122, 134-36 (2009) (citing numerous cases where swift, firm,

and clear instructions cured the prejudice of inadmissible testimony).

      Third, we explore whether there is "tolerance for the risk of imperfect

compliance[,]" essentially determining whether the inadmissible evidence had a

real possibility to lead the jury astray, akin to our reversible error analysis.

Herbert, 457 N.J. Super. at 507-08 (citing Winter, 96 N.J. at 647-48).

      Here, the State's witness inadmissibly testified to observing defendant in

the videos. However, while identification was certainly an important contested

fact, the judge's curative instruction has indicia of effectiveness. She issued it

immediately, informed the jurors to reject the detective's identification, and

reaffirmed the jury's role, as finders of fact, to decide for themselves whether

defendant was, in fact, the man depicted in the videos. Accordingly, the judge's

decision to deny the motion for mistrial and instead issue a curative instruction

was a sound exercise of her discretion.




                                                                          A-0936-17T4
                                          8
      Defendant's argument in Point II lacks sufficient merit to warrant

extensive discussion.   R. 2:11-3(e)(2).     Prosecutors are permitted to make

passionate and forceful presentations to jurors, constrained by the evidence and

reasonable inferences drawn from the evidence. State v. Daniels, 182 N.J. 80,

96 (2004).   Here, the prosecutor's statement urging the jurors to conclude

defendant appeared in the video was a legitimate comment on the evidence and

a reasonable inference to be drawn therefrom. Moreover, the absence of any

objection suggests the statement was not overtly inappropriate or inflammatory.

See State v. Feaster, 156 N.J. 1, 86-87 (1998). We find no reversible error.

                                      III.

      "A trial court ruling on the admissibility of other-crimes evidence is a

discretionary matter that receives 'great deference' and is reversible only if

clearly erroneous." State v. Weaver, 219 N.J. 131, 149 (2014) (quoting State v.

Gillispie, 208 N.J. 59, 84 (2011)). However, when the court does not engage in

a Cofield analysis, we conduct plenary review to determine admissibility. State

v. Barden, 195 N.J. 375, 391 (2008) (citing State v. Lykes, 192 N.J. 519, 534

(2007)).

      Cofield provides that to be admissible, N.J.R.E. 404(b) evidence must be:

(1) "relevant to a material issue"; (2) "similar in kind and reasonably close in


                                                                        A-0936-17T4
                                       9
time" to the instant offense; (3) "clear and convincing"; and (4) its prejudice

does not outweigh its probative value. 127 N.J. at 338. Defendant's threat to

"set the truck on fire and drive it through the house" satisfies the first prong as

it is highly probative of motive and intent. See State v. Rose, 206 N.J. 141, 162

(2011). The second prong is not always applicable, State v. P.S., 202 N.J. 232,

255 n.4 (2010) (quoting State v. Williams, 190 N.J 114, 131 (2007)), but here

the threatened conduct implied arson and was temporally proximate, since it was

made approximately one month before the fire. Although the judge failed to

conduct an evidentiary hearing before trial, J.B.'s testimony at trial about the

threat was subject to cross-examination, such that "the surrounding

circumstances adequately support that the third prong of Cofield was satisfied."

Rose, 206 N.J. at 163. Finally, the statement, while prejudicial, is highly

probative. Therefore, the admission of evidence of defendant's prior threat was

proper.

      However, evidence of defendant's practice of leaving the stove on was

irrelevant to any material issue in the case, and therefore, its obvious prejudice

outweighed its non-existent probative value. The judge permitted the evidence

by reasoning it was appropriate to rebut questions posed during cross-

examination, i.e., that defense counsel had opened the door.


                                                                           A-0936-17T4
                                       10
      However, that doctrine is "a rule of expanded relevancy and authorizes

admitting evidence which otherwise would have been irrelevant and

inadmissible in order to respond to (1) admissible evidence that generates an

issue, or (2) inadmissible evidence admitted by the court over objection ." State

v. Prall, 231 N.J. 567, 582 (2018) (quoting State v. James, 144 N.J. 538, 554

(1996)). The doctrine does not give the State carte blanche to introduce N.J.R.E.

404(b) evidence and admission of such evidence is still subject to a balancing

under N.J.R.E. 403. Id. at 583 (citing James, 144 N.J. at 554). For example,

entering irrelevant evidence under the doctrine for the narro w purpose of

bolstering a witness's credibility "does not satisfy the relevancy element of the

Cofield test." Ibid. (citing State v. Skinner, 218 N.J. 496, 520 (2014)).

      Here, the State sought to "explain why [defendant's wife] was behind [o]n

her gas bill." The evidence was irrelevant, except to rehabilitate the witness,

while its prejudicial character was obvious, given the nature of the charge. Its

admission was a mistaken exercise of the judge's discretion, but it does not

require reversal.

      Not every admission at trial of inadmissible evidence is reversible error.

Vallejo, 198 N.J. at 132. "[T]o warrant reversal of defendant's conviction, those

errors, singly or collectively, must 'raise a reasonable doubt' as to whether they


                                                                            A-0936-17T4
                                       11
affected the result reached by the jury." Prall, 231 N.J. at 588 (quoting State v.

Macon, 57 N.J. 325, 336 (1971)). "Also, '[t]he error[s] must be evaluated in

light of the overall strength of the State's case.'" Ibid. (alterations in original)

(quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).

      Here, evidence about defendant leaving the stove and heat on to drive up

J.B.'s energy bills was irrelevant. However, it was introduced on re-direct after

defense counsel had posed questions about the subject during cross-

examination. As a result, its admission in this context limited the evidence's

prejudicial nature. Given the overall strength of the State's case, we find no

basis to reverse.

                                        IV.

      At sentencing, the judge found aggravating factors one, two, three, six,

eight, and nine. See N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances of

the offense, . . . including whether . . . it was committed in an especially heinous,

cruel, or depraved manner"); (a)(2) (gravity and seriousness of the offense);

(a)(3) (risk of re-offense); (a)(6) (the extent of defendant prior criminal record);

(a)(8) (defendant committed the offense against a "fireman"); and (a)(9) (the

need to deter). She also found mitigating factors ten and eleven. See N.J.S.A.

2C:44-1(b)(10) (defendant would likely respond to probation); and (b)(11)


                                                                             A-0936-17T4
                                        12
(imprisonment would impose hardship to defendant or his family). The judge

gave moderate weight to aggravating factor one, finding the circumstances were

exceptionally cruel or depraved because the possessions of defendant's children

were destroyed by the fire.

      Defendant contends that the sentence is excessive because the judge

misapplied aggravating factor one by "double-counting" an element of arson.

See N.J.S.A. 2C:17-1(b)(2) (defining elements of arson as "purposely start[ing]

a fire . . . [t]hereby recklessly placing a building or structure . . . in danger of

damage or destruction"). We disagree and affirm the sentence.

      Our review of a sentence "is relatively narrow and is governed by an abuse

of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing

State v. Jarbath, 114 N.J. 394, 401 (1989)). Generally, we only determine

whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
            original) (quoting State v. Roth, 95 N.J. 334, 364-65,
            (1984)).]


                                                                            A-0936-17T4
                                        13
      "Elements of a crime, including those that establish its grade, may not be

used as aggravating factors for sentencing of that particular crime [,]" State v.

Lawless, 214 N.J. 594, 608 (2013), because that would lead to impermissible

double-counting. State v. Kromphold, 162 N.J. 345, 353 (2000). However, a

court "does not engage in double-counting when it considers facts showing

defendant did more than the minimum the State is required to prove to establish

the elements of an offense." State v. A.T.C., 454 N.J. Super. 235, 254-55 (App.

Div. 2018) (citing Fuentes, 217 N.J. at 75).

      Here, the judge noted that defendant victimized his own children in

addition to the intended victim, J.B. While the offense implicates the setting of

a fire and destruction of property, the emotional impact inflicted on unintended

victims elevated the circumstance beyond what the State was required to prove.

      Moreover, the judge only accorded factor one "moderate weight." And,

there was substantial evidence in the record supporting her findings regarding

the other aggravating factors, including defendant's extensive prior record. The

judge imposed a sentence that was in the middle of the authorized sentencing

range for a third-degree crime, and she imposed a concurrent sentence on

defendant's other conviction. In short, there is nothing excessive about this




                                                                         A-0936-17T4
                                      14
sentence, and, even if the judge's finding as to aggravating factor one was

erroneous, the sentence does not shock our judicial conscience.

      Affirmed.




                                                                    A-0936-17T4
                                     15
