STATE OF NEW JERSEY VS. M.P.(13-09-1797, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3135-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.P.,
Defendant-Appellant.
______________________________
Submitted October 18, 2017 – Decided November 27, 2017
Before Judges Alvarez and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 13-09-1797.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant M.P.1 appeals from his conviction following a jury
trial. He also contends that an error in the judgment of
conviction (JOC) requires a remand for its correction. After a
review of the arguments in light of the record and applicable
principles of law, we affirm the conviction, but remand for a
correction of the JOC.
Defendant was charged in a twenty-two count indictment with
two counts of armed burglary, N.J.S.A. 2C:18-2 (count one and
count fourteen); two counts of possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (count two and count
eighteen); two counts of unlawful possession of a weapon, N.J.S.A.
2C:39-5(d) (count three and count nineteen); two counts of witness
tampering, N.J.S.A. 2C:28-5(a) (count four and count twenty); one
count of terroristic threats, N.J.S.A. 2C:12-3(b) (count five);
one count of criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count
six); three counts of criminal contempt, N.J.S.A. 2C:29-9 (count
seven, count eight, and count twenty-one); one count of armed
robbery, N.J.S.A. 2C:15-1 (count nine); three counts of aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(count ten, count eleven, and
count twelve); one count of sexual assault, N.J.S.A. 2C:14-2(c)
(count thirteen); one count of aggravated assault, N.J.S.A. 2C:12-
1
We use initials to protect the privacy of the individuals in
this case.
2 A-3135-15T3
1(b)(1) (count fifteen); one count of criminal restraint, N.J.S.A.
2C:13-2 (count sixteen); one count of terroristic threats,
N.J.S.A. 2C:12-3(a) (count seventeen); and one count of stalking,
N.J.S.A. 2C:12-10 (count twenty-two).
The criminal charges arose out of conduct that occurred in
September and October 2012. All of the charges pertained to the
same victim, defendant's wife, C.G.2 Counts one through six
stemmed from a September break-in incident, and counts nine through
twenty related to a break-in and sexual assault in October.
The State severed and ultimately dismissed the contempt
charges - counts seven, eight and twenty-one. Defendant requested
separate trials for the two break-in incidents and the stalking
charges. The trial court denied defendant's motion for a severance
of counts one through six, nine through twenty, and twenty-two.
The testimony at trial revealed that shortly before these
events, defendant and C.G. had separated and defendant had moved
out of the marital home. Defendant, however, did not wish to
separate or divorce and was determined to return home. C.G.
testified that defendant broke into the marital home on September
6, 2012, while she and the three children were there. C.G. called
the police and took the children to stay at her sister's home.
2
The parties were divorced during the pendency of the criminal
case.
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When C.G. returned to the home on September 15, she saw
defendant in the backyard. She again reported this incident to
the police, telling them that defendant was harassing her
everywhere she went.
On September 26, defendant approached C.G. at their
children's school. He told her that he wanted to return to the
marital home. When she told him no, C.G. stated that defendant
"g[o]t into [her] face and he said I'm going to kill you." C.G.
called the police. The following day, C.G. observed defendant
parked across the street from her sister's house, and she again
filed a complaint with the police.
In October, C.G. and the children were still staying at her
sister's home, but they returned to the marital home in the
mornings and she remained there during the day. On October 3, as
the children were getting ready for school at home, C.G. noticed
that "the [bathroom] window lock was broken" and the window was
open. She contacted the police and when they arrived, the officer
stated that she thought someone may have entered through the
bathroom window. According to C.G., the officer did not conduct
a full search of the home before leaving.
As she locked the door behind the officer, C.G. said
defendant, who had been hiding in the house, attacked her. She
stated that defendant had a knife, pulled her hair, and banged her
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head against the floor. C.G. further testified that defendant
choked her, and threatened to kill her if she did not drop all of
the charges against him. She also stated that he sexually
assaulted her. After C.G. agreed to drop all of the charges,
defendant took $400 out of her purse and left the home.
Defendant also testified at the trial. He admitted being at
the children's school on September 26. Although he stated he was
emotional and angry during this interaction, he denied threatening
C.G. Defendant also did not dispute that he parked outside C.G.'s
sister's house, but he said he wanted to speak with his wife's
sister to ask her to convince C.G. to reunite with him.
As to the events of October 3, defendant testified that C.G.
called him that morning because she needed $400 and asked him to
come to the house. When defendant arrived, he said that C.G.
invited him in and explained why she needed the money. She also
showed defendant the bathroom window and explained that she thought
someone had attempted to break in. Defendant testified that he
asked C.G. if he could come back home and told her he missed his
family. He stated that the two of them became affectionate and
eventually had consensual sexual intercourse.
According to defendant, C.G. asked him for the money, but he
only had some of it. He then said that C.G. cursed at him, picked
up a knife, and lunged towards him; cutting his hand and fingers
5 A-3135-15T3
as he attempted to protect himself. They began tussling on the
floor and defendant admitted that he punched her once in the face
while trying to defend himself. Defendant testified that after
the altercation, they bandaged each other's hands. He gave C.G.
the money he had, told her he would bring the rest the next day,
and then left the home.
Defendant was tried before a jury and convicted of third-
degree assault, a lesser included offense of the charged offense
of aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count fifteen).3
The jury also convicted defendant of fourth-degree stalking,
N.J.S.A. 2C:12-10, count twenty-two and acquitted him of the
remaining seventeen counts. Defendant was sentenced to concurrent
probationary terms on each conviction with the condition that he
serve a 364-day prison term.4 The trial court also entered a
permanent restraining order, barring defendant from having any
contact with his ex-wife.
On appeal, defendant raises the following arguments:
POINT I: THE COURT HAVING ALLOWED THE TWO
BREAK-INS TO BE TRIED TOGETHER, IT WAS
OBLIGATED TO INSTRUCT THE JURY ON THE LIMITED
USE OF THE OTHER-CRIME EVIDENCE, AND
SPECIFICALLY, THAT IT COULD NOT USE THE
3
The JOC indicates a conviction of count sixteen, rather than
count fifteen.
4
Defendant was incarcerated pending trial and had 1257 days of
jail credit.
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EVIDENCE OF EACH BREAK-IN AS PROOF THAT
DEFENDANT IS A PERSON OF CRIMINAL CHARACTER
AND THEREFORE MORE LIKELY GUILTY OF ALL OF THE
CHARGED OFFENSES. (Not Raised Below)
POINT II: THE STALKING CONVICTION MUST BE
REVERSED BECAUSE THE JURY DID NOT IDENTIFY THE
INCIDENTS ON WHICH IT BASED THE CONVICTION,
ACQUITTED DEFENDANT OF SOME OF THE PROFFERED
INCIDENTS, AND WAS NOT REQUIRED TO FIND EACH
INCIDENT UNANIMOUSLY. (Not Raised Below)
POINT III: THE JUDGMENT OF CONVICTION MUST BE
AMENDED BECAUSE IT INCORRECTLY STATES THE
VERDICTS ON COUNTS 15 AND 16.
Defendant did not raise these contentions at trial. He did
not request either that the trial court provide a limiting
instruction pursuant to N.J.R.E. 404(b) or a special unanimity
instruction pertaining to the stalking charge. As a result, we
review his arguments for plain error. See State v. Brown, 138
N.J. 481, 535 (1994). Plain error is that which is "clearly
capable of producing an unjust result." State v. Whitaker, 200
N.J. 444, 465 (2009) (quoting R. 2:10-2).
Defendant argues that a Rule 404(b) limiting instruction was
required at trial because the evidence presented to the jury of
several break-ins was evidence of "other crimes." We disagree.
It is not necessary to give a Rule 404(b) limiting instruction
when multiple charged offenses in a single indictment are being
prosecuted in a single trial.
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Rule 404(b) addresses uncharged crimes, wrongs, or acts. See
State v. Rose, 206 N.J. 141, 179-80 (2011). "The threshold
determination under Rule 404(b) is whether the evidence relates
to 'other crimes,' and thus is subject to continued analysis under
Rule 404(b), or whether it is evidence intrinsic to the charged
crime[s]" before the jury at trial. Id. at 179. If evidence of
an uncharged crime, wrong, or act is admitted during a trial,
"limiting instructions must be provided to inform the jury of the
purposes for which it may, and for which it may not, consider the
evidence of defendant's uncharged misconduct." Id. at 161(emphasis added).
Evidence introduced to directly prove a charged offense,
however, is "intrinsic" and not subject to Rule 404(b). Id. at
180-81. Here, all of the presented evidence pertained to charged
crimes for which defendant was being prosecuted in this trial.
There was no evidence of any "other crimes" and, therefore, no
obligation to issue a limiting instruction under Rule 404(b).
Moreover, the trial judge advised the jury in his instructions
that there were eleven separate charged offenses in the indictment
and that "[e]ach is a separate offense named in a separate count."
He stated that defendant was "entitled to have each count
considered separately by the evidence which [was] relevant and
material to [that] particular charge based on the law." See State
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v. Pitts, 116 N.J. 580, 603 (1989) (stating that in the case where
multiple charges are joined, it is "adequate" that the court
"caution[] the jurors to deliberate separately on each of the .
. . counts, and to return a judgment of conviction only if
convinced that each element of the individual counts had been
proved beyond a reasonable doubt.").
Defendant also contends that the trial court erred in failing
to issue a specific unanimity instruction on the stalking charge
because the State introduced evidence of several incidents. He
relies on State v. Parker, 124 N.J. 628, 633 (1991), cert. denied,
502 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), for his
assertion that, without a special instruction, there was a risk
that a conviction occurred as the result of different jurors
concluding that defendant committed different acts. Defendant did
not request this charge and, therefore, we again review it for
plain error.
In Parker, a jury convicted a teacher of official misconduct
against children for a series of alleged acts, including making
them watch pornography, cursing at them, and insulting them. Id.
at 631-32. On appeal, the defendant argued that because the trial
court failed to include a specific instruction on unanimity, the
verdict should be vacated, as it was unclear as to which act the
jury convicted her. Id. at 632-33. The Court disagreed, holding
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that because all of the alleged actions subjected the victims to
"abusive, humiliating conduct" which was meant to be "harmful to
their physical or mental health[,]" the allegations were
conceptually similar, and thus, did not require a specific
unanimity instruction. Id. at 639.
Here, the alleged conduct involved acts that were
conceptually similar. There was sufficient evidence presented on
each incident for the jury to reasonably conclude that any of the
five alleged incidents constituted a course of conduct amounting
to stalking. Defendant's appearances on multiple occasions at the
marital home, the children's school, and the home of C.G.'s sister
were all conceptually related acts of stalking. The series of
acts alleged in this case, committed in September and October
2012, which the jury found constituted stalking under N.J.S.A.
2C:12-10, involved such similar and continuous behavior that no
special unanimity instruction was required.
We also note that the trial judge explained to the jury at
least five times that the judgment "must be unanimous as to each
charge. . . . [which] means [that] all [jurors] must agree if the
[d]efendant is guilty or not guilty on each charge." Defendant
cannot demonstrate plain error here because the general unanimity
instruction, which the trial judge repeated and explained numerous
times during the jury charge, was sufficient.
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We do agree that the JOC contains an error requiring
correction. It should reflect that defendant was convicted on
count fifteen, not count sixteen. We, therefore, remand to the
trial court for the entry of an amended JOC.
Affirm in part, remand solely for the entry of a corrected
JOC. We do not retain jurisdiction.
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