                                NOT FOR PUBLICATION WITHOUT THE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-1398-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEFFREY R. BUTLER,

     Defendant-Appellant.
___________________________

                    Submitted May 7, 2019 – Decided June 19, 2019

                    Before Judges Hoffman and Enright.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 14-12-3862.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew R. Burroughs, Designated Counsel,
                    on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Kevin J. Hein, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jeffrey Butler appeals from the judgment of conviction entered

by the trial court after a jury found him guilty of second-degree conspiracy to

commit witness tampering, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:28-5d, and

harassment, N.J.S.A. 2C:33-4a. For the reasons that follow, we affirm.

                                      I.

      This case arises from a physical altercation between defendant and his

brother-in-law, D.M. On June 7, 2014, defendant assaulted D.M. with a metal

pole upon learning that D.M. advised defendant's wife, K.B, to leave defendant.

Prior to the assault, D.M. had moved into defendant's trailer home in

Chesilhurst, where defendant lived with K.B.

      After the police filed aggravated assault charges against defendant, he

conspired with K.B. to bribe D.M. to have D.M. drop the charges against

defendant, in exchange for a monetary payment. Specifically, on August 18,

2014, K.B. sent D.M. text messages offering him between one- and two-

thousand dollars if he would drop the charges against defendant. The text

messages specified that D.M. would receive the money from defendant's

attorney. After he received the text messages, D.M. presented them to the

Camden County Prosecutor's Office, which proceeded to record a phone call




                                                                         A-1398-17T4
                                      2
between D.M. and K.B., with D.M.'s consent.            The recording included the

following exchange:

                  D.M.:        [H]as [defendant] asked you to tell me
                               directly to get me to drop the charges?
                               Did he talk to you?

                  K.B.:        Well, that's what . . . it would be.

                  D.M.:        No, I'm saying did he ask you to ask
                               me that?

                  K.B.:        Not necessarily. He's been kind of
                               telling me -- well, yes and no. He was
                               kind of telling me to talk to you and see
                               what -- if you would, and this, that, and
                               the other. I said, listen, I'll put it out
                               there a couple times. If he chooses to
                               do that then he'll choose to do it. . . .

                  D.M.:        What's he saying to you about . . . it?

                  K.B.:        Really not much. Just that -- for me to
                               try to -- for me to get you to see if you
                               -- if you would drop the charges . . . .

                  D.M.:        Is he pressing you to get me to drop the
                               charges?
                               ....

                  K.B.:        Not constantly. But it's been brought
                               up enough times . . . .

During the same conversation, K.B. stated that defendant told her to "tell [D.M.]

about the money and going through an attorney."


                                                                            A-1398-17T4
                                        3
      In October 2014, a Camden County Grand Jury charged defendant with

second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-

degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count two); fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count

four); third-degree terroristic threats, N.J.S.A. 2C:13-3b (count five); second-

degree tampering with witnesses and informants, N.J.S.A. 2C:28-5d and 2C:28-

5a(1) (count six); and second-degree conspiracy to tamper with witnesses,

N.J.S.A. 2C:5-2 and 2C:28-5d (count seven). Counts six and seven of the

indictment also charged K.B. with witness tampering and conspiracy.

      Pursuant to a plea agreement, K.B. pleaded guilty to a disorderly persons

offense of obstruction, prior to defendant's trial. Under the agreement, the

State agreed to dismiss the witness tampering and conspiracy charges against

K.B., contingent upon her providing truthful testimony at defendant’s trial; K.B.

further agreed she would not assert her spousal privilege. The trial court denied

defendant's pre-trial motion in limine to bar the State from presenting any

testimony from K.B.

      At trial, the State primarily relied on the testimonies of D.M. and K.B.,

along with the recorded phone conversation and text messages between them.


                                                                         A-1398-17T4
                                       4
At one point, D.M. testified that while defendant assaulted him, he could

"remember hearing" defendant call him "fucking spic." Defendant's counsel

moved for a mistrial, arguing the issue of race was inappropriately injected into

the trial. The trial judge denied the motion, finding the defense was on notice

of the statement, yet it never moved to "have that portion of the statement

redacted or barred." The judge further found nothing "improper about the [S]tate

introducing statements allegedly made by the defendant while he's allegedly in

the course of committing a crime."        The judge also found that defendant's

statements "go to his intent."

        After the State rested, defendant filed a Reyes1 motion to dismiss the

witness tampering counts. The defense argued that because K.B. and defendant

sought to pay D.M. money through an attorney, the offer to pay D.M. was not

illegal. The trial court denied the motion, finding that when there is "some type

of monetary inducement to not be cooperative or to drop charges, [it] certainly

does interfere with an official investigation or an official proceeding."

        At trial, defendant argued self-defense. His counsel contended that D.M.

had a knife and was intoxicated at the time of the incident. The defense further

noted that D.M. filed a lawsuit related to the incident against the trailer's


1
    State v. Reyes, 50 N.J. 454 (1967).
                                                                            A-1398-17T4
                                          5
management company; as a result, he maintained a financial interest in the

outcome of the trial.

      The jury returned a verdict of not guilty on counts one through four and

six, but guilty on the lesser-included charge of harassment on count five, and

second-degree conspiracy to tamper with witnesses on count seven.

      Defendant filed a motion for judgment of acquittal after discharge of the

jury. R. 3:18-2. The trial judge heard oral argument on the post-trial motion,

where defense counsel admitted it was proffering the same argument as the

Reyes motion – that the tampering charges do not constitute a crime. The trial

judge denied defendant's motion, finding "the evidence that was presented to

this jury was enough to satisfy [the] verdict that was rendered." Specifically,

the judge pointed to the "recorded conversation of [K.B.] with the victim

discussing the dropping of the charge. The jury was free to make their own

determination as to what they believe the substance of that call was."

      The trial judge sentenced defendant to eight years imprisonment, with no

period of parole ineligibility, on count seven. She also sentenced defendant to thirty

days in the county correctional facility, on count five, to run concurrent to count

seven. The State then moved for the judgment of conviction to be amended,

specifically to change the sentences from concurrent to consecutive, as "any


                                                                              A-1398-17T4
                                          6
sentence received on a substantive offense attached to a conspiracy or a witness

tampering charge must run consecutive." The judge granted the motion, and

amended the harassment sentence to fines only.      This appeal followed, with

defendant presenting the following arguments:

            POINT I AS [K.B.'S] WAIVER OF MARITAL
            PRIVILEGE WAS NOT MADE FREELY AND
            VOLUNTARILY, THE TRIAL COURT ERRED
            WHEN IT ALLOWED [HER] TO TESTIFY
            AGAINST DEFENDANT. (Not raised below)

            POINT II THE TRIAL COURT WAS WRONG
            WHEN IT DENIED DEFENDANT'S MOTION TO
            EXCLUDE HIS WIFE'S TESTIMONY AS THE PLEA
            AGREEMENT IMPERMISSIBLY RESTRAINED
            HER ABILITY TO TELL THE TRUTH. (Raised
            below)

            POINT III THE TRIAL COURT ERRED WHEN IT
            ALLOWED THE STATE TO INTERJECT THE
            ISSUE OF RACE IN THE TRIAL. (Raised below)

            POINT IV THE TRIAL COURT ERRED WHEN IT
            DENIED DEFENDANT'S REYES MOTION. (Raised
            below)

            POINT V THE TRIAL COURT WAS WRONG
            WHEN IT DENIED DEFENDANT'S MOTION FOR A
            NEW TRIAL. (Raised below)

            POINT VI AS   THE   JURY     CHARGE    ON
            CONSPIRACY     TO    COMMIT        WITNESS
            TAMPERING WAS INCOMPLETE AND VAGUE, A
            NEW TRIAL IS REQUIRED. (Raised below)


                                                                        A-1398-17T4
                                       7
            POINT VII THE TRIAL COURT'S CUMULATIVE
            ERRORS DENIED DEFENDANT HIS RIGHT TO A
            FAIR AND RELIABLE TRIAL.

            POINT VIII   GIVEN    THE     UNIQUE
            CIRCUMSTANCES OF THIS CASE, AN EIGHT
            YEAR SENTENCE WAS UNDULY HARSH,
            EXCESSIVE AND UNFAIR.

            POINT IX TRIAL COUNSEL WAS INEFFECTIVE.
            (Not raised below)

            (1) Trial counsel was ineffective because she failed
            to object that [K.B.'s] waiver of marital privilege was
            the product of coercion.

            (2) Defendant's trial attorney was ineffective when
            she failed to present the defense of Ignorance and
            Mistake pursuant to N.J.S.A. 2C:2-4.

            (3) Trial counsel was ineffective because she failed to
            object to the verdict sheet as to Count Seven.

                                       II.

                     A.    Admission of K.B.'s Testimony

      In defendant's first point, he contends that K.B. did not freely and

voluntarily waive her marital privilege. His second point challenges the trial

judge's denial of defendant's pre-trial motion in limine, which sought to bar K.B.

from testifying "by asserting the plea agreement had impermissibly constrained

her capacity to tell the truth." We address each argument respectively.



                                                                          A-1398-17T4
                                        8
      Defendant's first point asserts that K.B. was impermissibly coerced into

pleading guilty and waiving marital privilege "after being held in jail for sixteen

days for being one hour late to court," and "denied medication for anxiety and

depression" while incarcerated.       Because defendant did not present this

argument to the trial court, we review the argument under the plain-error

standard. R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012). To

warrant reversal, the error must be "clearly capable of producing an unjust

result." R. 2:10-2. This argument lacks merit since the trial judge found K.B.'s

"guilty plea . . . knowing and voluntary," and during the plea hearing, K.B.

confirmed her understanding that she did not have to testify against her spouse.

Moreover, defendant had the opportunity to cross-examine K.B. about her

motive for implicating her husband – at one point during cross-examination, she

acknowledged it was "a priority for [her] to get out of jail." We discern no

reversible error.

      Defendant's second point reiterates the arguments raised during the

motion in limine – that K.B. was constrained from testifying truthfully as a result

of the prosecutor stating at the plea hearing that if K.B. "fails to in any way

testify in accordance with the statement that she's given previously," then her

indictment would be reinstated.      Defendant argues that this language "far


                                                                           A-1398-17T4
                                        9
exceeds a condition that the witness testify truthfully, and instead travels into

the unlawful territory of inhibiting the truth and hindering a free flow of

information."

      In support of this argument, defendant cites to State v. Feaster, 184 N.J.

235, 251 (2005), where a State witness recanted his trial testimony, and was

prepared to testify at the defendant's post-conviction relief hearing, when he

was threatened by State officials that he would be charged with perjury if he

went forward with such testimony. The Court held that "the State may not use

threats or intimidating tactics that substantially interfere with a witness's

decision to testify for a defendant." Ibid.

      Here, after oral argument, the trial judge denied defendant's motion,

finding K.B. "certainly free to testify as to what the truth is[,] . . . . and

[defendant's counsel] is free to go into any area of cross-examination that [it]

feel[s] is important for [the defense's] case." The judge was unable to find "how

the [S]tate hinders [defendant] in any way in this case."          The judge then

distinguished this case from Feaster, where "there was a threat of perjury. [Here,

t]here's no threat of perjury.      There is an agreement if [she] testif[ies]

different[ly] from the factual basis [she] gave in court," then the State would be

able to reinstate the indictment.


                                                                            A-1398-17T4
                                        10
      We agree with the trial judge's oral opinion, and further add that defendant

provides no support for his assertion that if K.B. testified inconsistently with her

plea hearing testimony or prior statements to police, then the reinstatement of

her indictment would be unlawful or inappropriate. Defendant fails to show

error by the trial court in denying defendant's motion in limine to bar K.B. from

testifying. Defendant's second point lacks merit.

                      B.     Defendant's Motion for Mistrial

      Defendant contends when D.M. testified that defendant called him a

"fucking spic," the trial judge erred in denying his motion for mistrial, and for

declining to provide a curative instruction. Defendant asserts the judge failed

to "ensure that inflammatory, prejudicial evidence was not presented to the jury.

[N.J.R.E.] 403."

      When the trial judge denied the motion for a mistrial, she added:

            [T]here's no curative instruction being requested of the
            [c]ourt regarding how [the jury is] to consider that portion
            of this statement. If you seek to have me read a certain
            instruction, a limiting instruction . . . . I will read that to
            the jury during the . . . legal instructions portion of the trial.
            I'm not sua sponte giving this jury any type of curative as
            to how they should consider the defendant's statement
            because it simply highlights the term that you are seeking
            not to be highlighted. But I do not find anything improper
            about the [S]tate introducing statements allegedly made by
            . . . defendant while he's allegedly in the course of
            committing a crime.

                                                                                 A-1398-17T4
                                          11
      "Whether an event at trial justifies a mistrial is a decision 'entrusted to

the sound discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47 (2016)

(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). "Appellate courts 'will

not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of

discretion that results in a manifest injustice.'" Ibid. (quoting State v. Jackson,

211 N.J. 394, 407 (2012)). And since defendant's counsel did not argue for a

curative instruction, "defendant must show that the failure to give such an

instruction sua sponte constitutes an error 'clearly capable of producing an

unjust result.'" State v. Mayes, 321 N.J. Super. 619, 633 (App. Div. 1999)

(quoting State v. Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)).

                   Intrinsic evidence is evidence that "directly
            proves" the charged offense or evidence of "acts
            performed contemporaneously with the charged crime
            . . . [that] facilitate the commission of the charged
            crime." [State v.]Rose, 206 N.J. [141,] 180 [(2011)]
            (quoting United States v. Green, 617 F.3d 233, 248-49
            (3d Cir. 2010)). It is distinguishable from "other
            crimes" evidence under Rule 404(b) because it is not
            evidence of another crime; it directly proves the
            charged offense. Id. at 177. "[E]vidence that is
            intrinsic to a charged crime need only satisfy the
            evidence rules relating to relevancy, most importantly
            the [N.J.R.E.] 403 balancing test." Id. at 177-78. In
            contrast, under Rule 404(b), evidence of other crimes is
            not admissible but it can be used for other purposes
            "such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity or absence of
            mistake or accident when such matters are relevant to a

                                                                            A-1398-17T4
                                       12
               material issue in dispute." N.J.R.E. 404(b); see Rose,
               206 N.J. at 177.

               [State v. B.A., __ N.J. Super. __ (2019) (slip op. at 23-
               24).]

      Here, the trial judge admitted the statement as intrinsic evidence, finding

nothing "improper about the [S]tate introducing statements allegedly made by

the defendant while he's allegedly in the course of committing a crime." The

judge further found defendant's statements "go to his intent," thereby finding the

evidence admissible under Rule 404(b). We find no error in these rulings, and

further note defendant failed to file a motion to exclude the statements in the

pre-trial stages; defendant also failed to seek a curative instruction, and the judge

refused to give one sua sponte. We discern no abuse of discretion or error clearly

capable of producing an unjust result.

          C.      Defendant's Reyes and Judgment of Acquittal Motions

      Points four and five of defendant's brief argue that the trial judge erred in

denying his Reyes motion and his motion for judgment of acquittal for the same

reason: that defendant "mistakenly believed he was engaged in a lawful

settlement negotiation with his brother-in-law which would be finalized with the

assistance of a lawyer."




                                                                             A-1398-17T4
                                         13
      When we review the grant or denial of a motion for a judgment of

acquittal, we apply the same standard as the trial court. State v. Sugar, 240 N.J.

Super. 148, 153 (App. Div. 1990) (citing State v. Moffa, 42 N.J. 258, 263

(1964)). That standard remains the same, whether the motion is made at the

close of the State's case, at the end of the entire case, or after a jury returns a

guilty verdict under Rule 3:18-2. State v. Kluber, 130 N.J. Super. 336, 341

(App. Div. 1974). We will deny a motion for a judgment of acquittal if

            the evidence, viewed in its entirety, be it direct or
            circumstantial, and giving the State the benefit of all of
            its favorable testimony as well as all of the favorable
            inferences which reasonably could be drawn therefrom,
            is sufficient to enable a jury to find that the State's
            charge has been established beyond a reasonable doubt.

            [Stater v. Fuqua, 234 N.J. 583, 590-91 (2018) (quoting
            Kluber, 130 N.J. Super. at 341-42).]

      Giving the State the benefit of all favorable inferences which reasonably

could be drawn, we find there was sufficient evidence for a jury to find that

defendant and K.B. conspired to offer D.M. money to have defendant's charges

dropped. While defendant correctly notes that D.M. did not actually have this

power, he nevertheless sought to pay D.M. to obstruct, prevent, or impede the

official proceeding arising from the assault charge against defendant. The trial

judge's rulings on these points are affirmed.


                                                                           A-1398-17T4
                                       14
                              D.     The Verdict Sheet

      Defendant next posits the verdict sheet on counts six and seven were

"incomplete, ambiguous, and denied him a fair trial and reliable proceeding."

Specifically, the defense points to the fact that on count six of the verdict sheet, the

jury did not have to consider whether defendant committed bribery of a witness or

informant, N.J.S.A. 2C:28-5d, since it first found defendant not guilty of obstruction

under N.J.S.A. 2C:28-5a, the first question within count six.            According to

defendant, "This latter finding was required to determine the degree of the

[conspiracy] offense. N.J.S.A. [2C:]28-5(d). If the jury answered in the affirmative,

[d]efendant would be convicted of a second-degree offense, otherwise it would have

been considered a third-degree crime. N.J.S.A. 2C:28-5(a)." The verdict sheet

directed the jury to skip the bribery question within count six, and on count seven of

the verdict sheet, the jury was charged with determining whether defendant

committed conspiracy "with the purpose of promoting or facilitating the commission

of the crime of tampering with witnesses." Defendant contends the guilty verdict

under count seven "allowed [d]efendant to be convicted of a higher degree offense

without requiring the jury to make a specific factual finding," specifically, a finding

of bribery, "as required under the witness tampering statute. N.J.S.A. 2C:28-5."




                                                                                A-1398-17T4
                                         15
      Defendant's counsel did not raise this argument until after the verdict was

rendered. It was orally argued and decided in defendant's motion for a new trial on

the same day as sentencing. After argument, the trial judge denied defendant's

motion, stating in relevant part:

             I'm more than satisfied that [the] jury had the law on this
             count. [Defendant] was on notice that this was a
             second[-]degree offense. The [c]ourt read the law to this
             jury for witness tampering, what made it a third[-]degree,
             and what made it a second[-]degree. A conspiracy under
             the theory that the [S]tate was proceeding on was a
             second[-]degree for which [defendant] had notice on.

The judge then noted the indictment explicitly charged defendant with

tampering and conspiracy to tamper under N.J.S.A. 2C:28-5d, the second-degree

bribery offense, in counts six and seven.

      A trial court's verdict sheet is reviewed under Rule 2:10-2, State v.

Galicia, 210 N.J. 364, 386 (2012), which provides:

             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, but
             the appellate court may, in the interest of justice, notice
             plain error not brought to the attention of the trial or
             appellate court.

      We agree with the State's argument that defendant was only ever charged

with the bribery portion of the witness tampering statute; and at trial, the State

"presented just one theory of witness tampering for the jury to either accept or

                                                                           A-1398-17T4
                                        16
reject: bribery . . . . which is always a second-degree crime." N.J.S.A. 2C:28-

5d." The jury received a number of different forms of evidence of witness

tampering, from the text messages, the recorded phone conversation, and

testimonies of D.M. and K.B., and it all presented the same event, which is that

defendant and K.B. conspired to pay D.M. money, between one- and two-

thousand dollars, in exchange for his efforts to have the charges against

defendant dropped. Any error was not clearly capable of producing an unjust

result.

                          E.    Defendant's Sentence

      Defendant's next point on appeal contends that his sentence "was

excessive, harsh, and fundamentally unfair." He further contends "the trial court

erred when it rejected several of the mitigating factors advanced at sentencing."

After review of the trial judge's oral opinion at sentencing and the applicable

law, we find defendant's argument lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

                    F.    Ineffective Assistance of Counsel

      Lastly, defendant raises three ineffective assistance of counsel claims in

his ninth point on appeal. New Jersey courts "routinely decline to entertain

ineffective-assistance-of-counsel claims on direct appeal because those claims


                                                                         A-1398-17T4
                                      17
'involve allegations and evidence that lie outside the trial record.'" State v. Hess,

207 N.J. 123, 145 (2011) (citation omitted). Such claims generally "should be

determined in a post-conviction relief [PCR] proceeding." State v. McDonald,

211 N.J. 4, 30 (2012) (citations omitted). We therefore dismiss defendant's

ineffective-assistance-of-counsel claim without prejudice to a proper PCR

petition and an evidentiary hearing, if appropriate.

      Affirmed.




                                                                             A-1398-17T4
                                        18
