STATE OF NEW JERSEY v. MATTHEW L. EVANS (18-06-0227 AND 18-09-0324, WARREN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3748-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MATTHEW L. EVANS,
a/k/a MATTHEW EVAN,
Defendant-Appellant.
_______________________
Argued January 25, 2022 – Decided July 28, 2022
Before Judges Fisher, DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment Nos. 18-06-0227
and 18-09-0324.
Alison Gifford, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Alison Gifford, of counsel
and on the briefs).
Naya A. Tsang, Assistant Prosecutor, argued the cause
for respondent (James L. Pfeiffer, Warren County
Prosecutor, attorney; Dit Mosco, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
A jury convicted defendant, Matthew Evans, of first-degree strict liability
for drug induced death, N.J.S.A. 2C:35-9(a), two counts of third-degree
possession with intent to distribute a controlled dangerous substance, N.J.S.A.
2C:35-5(b)(5), and third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1).
Defendant argues that the trial court erred in admitting the investigating
detective's testimony about how he knew defendant from previous encounters in
the community under N.J.R.E. 403, as well as by admitting other-crimes
evidence pursuant to N.J.R.E. 404(b) during the State's rebuttal case. Defendant
also appeals the sentence, contending that certain counts should have merged,
and that the sentencing court failed to place on the record its factual support for
the aggravating factors. We affirm in part and reverse in part for the reasons
that follow.
I.
On February 2, 2018, Travis Vickerman died in his parents' home of a
drug overdose.1 Police investigators responded to the home to take photographs
1
When the victim's blood was tested, the medical examiner found Prozac,
Hydroxycarbazepine, caffeine, a blood alcohol level of .136, and thirteen
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and collect evidence. At the scene, Detectives Kyle Hayes and Shane Zaro
collected seven bags of Fentanyl, a straw, and a cell phone, all from the victim's
room.2 The cell phone was lying next to the victim. Detective Zaro viewed the
contents of the phone and saw a phone number contact titled, "Matt." Detective
Zaro recognized that number because defendant was cooperating with the police
on a different case.
A neighbor reported to Detective Hayes that on February 2 he observed a
yellow compact car in front of victim's house. Detective Zaro, who had seen
defendant driving a vehicle fitting the description, interviewed the car's owner,
Amanda Gild. Detective Zaro learned that Gild drove defendant to the victim's
house. When they arrived, defendant went around to the back of the home. After
some delay, Gild texted defendant to hurry up, and shortly thereafter he came
out.
Detective Zaro obtained a search warrant for defendant's phone. The
contents of the phone revealed a text message exchange between defendant and
nanograms per millimeter of fentanyl. The examiner attributed the cause of
death to acute fentanyl toxicity.
2
A friend of the victim, Dana Baccetta, consented to police seizure of the phone
because she was its owner. She purchased it for the victim's use.
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the victim. Based on his experience investigating illegal drug transactions,
Detective Zaro concluded the messages showed a drug buy, where the victim
agreed to buy ten bags of heroin in exchange for eighty dollars. However, at
trial, defendant testified that the parties had a lengthy history of illegal
transactions. Defendant would only provide marijuana to the victim, and in turn,
the victim would sell him heroin. Defendant testified that the text conversation
meant the victim had obtained heroin and wanted to trade it for cash or
marijuana. Defendant went on to testify that he did not possess heroin on the
day of victim's death.
Defendant was indicted on four charges, one count of first-degree strict
liability for drug induced death, N.J.S.A. 2C:35-9(a), two counts of third-degree
possession with intent to distribute a controlled dangerous substance, N.J.S.A.
2C:35-5(b)(5), and third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1).
At trial, defendant objected to Detective Zaro's testimony regarding his
recognition of defendant's cell phone number on the victim's cell phone. During
sidebar, the parties agreed to permit the State to ask questions on direct that
would inform the jury how the detective knew defendant. Once Detective Zaro's
direct continued, the court interjected and informed the jury that the State's line
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of questioning could create speculation, contrary to the constitution al rights
afforded to criminal defendants. The court granted the State the opportunity to
cure the defect, which it did. The court also instructed the jury that speculation
is not evidence.
After defendant rested, the court held a N.J.R.E. 104 hearing to determine
whether Gild could testify as a rebuttal witness for the State. The court
considered Gild's testimony about defendant's action of February 2 in two
segments: defendant's possession of heroin and his sale of heroin to her.
The court first addressed Gild's testimony about defendant's possession of
heroin. It found that Gild's testimony was rebuttal evidence, offered to
contradict defendant's testimony that he did not possess heroin on February 2.
The court found that Gild's testimony was not intrinsic evidence because it was
not probative of the charged offenses. Next, using the four factors of State v.
Cofield, 127 N.J. 328, 338 (1992), the court found Gild's testimony relevant to
defendant's credibility. Defendant testified that he did not have heroin on
February 2, and the court found the State had a right to counter that testimony.
The court proceeded to find Gild's testimony about defendant's possession of
heroin similar in kind and reasonably close in time to the offenses charged. The
court concluded that her testimony was clear and convincing, and its probative
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value was not outweighed by prejudice. The court concluded Gild's testimony
on possession satisfied the Cofield test and was admissible.
The court then turned to Gild's testimony about defendant 's sale of heroin
to her. The court found Gild's testimony was not intrinsic evidence, and it would
divert the jury from a reasonable and fair evaluation of the evidence relevant to
his charges. The court found that any curative instruction it gave the jury would
be inadequate. Accordingly, it barred Gild's testimony regarding defendant's
sale of heroin to her.
After the jury convicted defendant on all counts, the court sentenced him
to twenty years on the strict liability for drug induced death count, subject to the
No Early Release Act. The court sentenced defendant to five years'
incarceration on each of the three drug related charges, to be served concurrently
to the twenty-year sentence. On appeal, defendant raises the following issues:
POINT I
DEFENDANT WAS DEPRIVED OF DUE PROCESS
AND A FAIR TRIAL BY THE ADMISSION OF AN
UNCHARGED ACT OF HEROIN POSSESSION
A. EVIDENCE OF DEFENDANT'S
HEROIN POSSESSION SHOULD HAVE
BEEN EXCLUDED UNDER N.J.R.E.
404(B)
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B. EVIDENCE OF DEFENDANT'S
HEROIN POSSESSION WAS NOT
ADMISSIBLE AS "INTRINSIC
EVIDENCE"
POINT II
THE TRIAL COURT ERRED IN FAILING TO
GRANT A MISTRIAL BASED ON OFFICER ZARO'S
IMPROPER TESTIMONY IMPLICATING EVAN'S
IN CRIMINAL ACTIVITY
POINT III
COUNTS TWO, THREE AND FOUR SHOULD
HAVE MERGED WITH COUNT ONE
POINT IV
DEFENDANT'S 20-YEAR SENTENCE IS
EXCESSIVE AND THE COURT FAILED TO
EXPLAIN THE REASONS FOR ITS IMPOSITION
II.
We afford great deference to the trial court's admission of other-crimes
evidence. State v. Gillispie, 208 N.J. 59, 84 (2011). We only disturb the court's
decision "where there is a clear error of judgment . . . ." State v. Rose, 206 N.J.
141, 158 (2011) (quoting State v. Barden, 195 N.J. 375, 391 (2008)). "The
admissibility of such evidence is left to the sound discretion of the trial court,
as that court is in the best position to conduct the balancing required under
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Cofield due to its 'intimate knowledge of the case.'" Gillispie, 208 N.J. at 84(quoting State v. Covell, 157 N.J. 554, 564 (1999)).
Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts" cannot
be used "to prove a person's disposition in order to show that on a particular
occasion the person acted in conformity with such disposition" but may 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 material issue in dispute." The party seeking to admit this
evidence must show that the probative value of the evidence is not outweighed
by its apparent prejudice. State v. Reddish, 181 N.J. 553, 608-09 (2004).
To meet this burden, the moving party must show that the evidence passes
the Cofield test. Regarding Cofield's first prong, for evidence to be relevant to
a material issue it must have "a tendency in reason to prove or disprove any fact
of consequence to the determination of the action." Rose, 206 N.J. at 160.
The second prong "requires that the other-crime evidence be similar in
kind and reasonably close in time to the alleged crime, [but it] is implicated only
in circumstances factually similar to Cofield." State v. Skinner, 218 N.J. 496,
515 (2014). In Cofield, "the State sought to introduce evidence establishing the
defendant's constructive possession of drugs during an illegal-drug street
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encounter that occurred subsequent to the drug incident that was the subject of
the prosecution." State v. Williams, 190 N.J. 114, 131 (2007). "The State sought
to admit that similar and close-in-time other-crimes evidence as relevant to
prove the defendant's possession of drugs in the charged offense, an element that
was hotly contested." Ibid.The third prong requires the evidence of the other crime to be clear and
convincing. Cofield, 127 N.J. at 338. The clear and convincing standard may
be satisfied by uncorroborated testimonial evidence. State v. Hernandez, 170
N.J. 106, 127 (2001) (citations omitted). Additionally, the trial court may
consider the surrounding circumstances to find adequate "support that the third
prong of Cofield was satisfied." Rose, 206 N.J. at 163.
The final prong is a balancing test between the risk of prejudice and
probative value of the evidence. Case law instructs the trial court to consider
"[i]f other less prejudicial evidence may be presented to establish the same issue
. . . ." Id. at 161 (alteration in original) (quoting Barden, 195 N.J. at 392). The
court should exclude the evidence if there is another way to establish the same
issue. Ibid. While the fourth prong is a stringent balancing test, "our courts
have not frequently excluded highly prejudicial evidence under the fourth prong
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of Cofield." State v. Garrison, 228 N.J. 182, 198 (2017) (quoting State v. Long,
173 N.J. 138, 162 (2002)).
Moreover, the court must sanitize other-crimes evidence, Barden, 195 N.J.
at 390, and give a limiting instruction to the jury. Skinner, 218 N.J. at 516.
Sanitizing evidence "accommodates the right of the proponent to present
relevant evidence and the right of the objecting party to avoid undue prejudice."
Barden, 195 N.J. at 390 (citations omitted). Courts sanitize other-crime
evidence by "confining its admissibility to those facts reasonably necessary for
the probative purpose . . . ." State v. Fortin, 318 N.J. Super. 577, 598 (App. Div.
1999).
"[T]he court's [limiting] instruction 'should be formulated carefully to
explain precisely the permitted and prohibited purposes of the evidence, with
sufficient reference to the factual context of the case to enable the jury to
comprehend and appreciate the fine distinction to which it is required to
adhere.'" Barden, 195 N.J. at 390 (alteration in original) (quoting Fortin, 162
N.J. at 534). The limiting instruction "should be given when the evidence is
presented and in the final charge to the jury." Ibid. (citing Fortin, 162 N.J. at
534-35).
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III.
A.
We first address the other-crimes evidence. The trial court performed a
Cofield analysis, so we afford its analysis deference. The court correctly found
that Gild's other-crimes testimony satisfied Cofield's first prong. The evidence
was relevant because Gild's testimony went to defendant's credibility at trial.
Next, Gild's possession testimony easily surmounts the second Cofield prong.
The time frame of the possession Gild refers to is just before Gild drives
defendant to the victim's house. Similarity in kind was shown because the drug
possessed was heroin, the same drugs that defendant was accused of selling to
the victim.
Regarding Cofield prong three, the record shows Gild's evidence of
defendant's heroin possession was clear and convincing. In addition to her
testimony, Detective Zaro testified that the text message exchange showed
defendant and victim were setting up a transaction for heroin before defendant
arrived at victim's house. On the fourth Cofield prong, the court found that the
risk of prejudice caused by Gild's testimony did not outweigh its probative value.
Defendant denied any heroin possession, and the State had the right to challenge
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his credibility. Defendant admitted on the witness stand that he had possessed
heroin previously.
The court properly instructed the jury on the limited purposes for which
Gild's testimony could be used. The court sanitized her testimony for the jury,
barring the State from asking Gild any questions regarding her heroin
transactions with defendant. We find the trial court reached the proper
conclusion in admitting Gild's testimony of defendant's heroin possession on
February 2, and we discern no clear error of judgment.
The possession evidence was not intrinsic. When reviewing evidence of
uncharged bad conduct, the trial court must determine whether the evidence is
admissible under other-crimes analysis, or whether the evidence is "intrinsic to
the charged crime, and thus need only satisfy the evidence rules relating to
relevancy, most importantly Rule 403." State v. Brockington, 439 N.J. Super.
311, 325 (App. Div. 2015) (citations omitted). Intrinsic evidence falls into two
categories. Id. at 327. One category is evidence that directly proves the charged
offense. Ibid. Under this category, the court must consider "whether the
evidence has probative value as to the charged offense." Ibid. The second
category is contemporaneous acts. These are "uncharged acts performed
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contemporaneously with the charged crime may be termed intrinsic if they
facilitate the commission of the charged crime." Rose, 206 N.J. at 180.
The challenged evidence goes to the credibility of defendant. It cannot
directly prove the crime defendant is charged with, and nothing in the record
links defendant's possession of heroin at the time he met with Gild to his
possession of heroin when he met with the victim later. While the possession
evidence was contemporaneous, it was solely in the case to impeach defendant
and does not facilitate commission of the charged crime. The court was correct
in declining to call Gild's testimony intrinsic evidence. 3
B.
We turn to defendant's next argument that the trial court should have
granted a mistrial because Detective Zaro's testimony created an "inescapable
inference that defendant was involved in criminal activity." Defendant argues
that the court's jury instruction and further questioning by the State failed to
remedy the inference created that the detective knew defendant from some prior
criminal activity.
N.J.R.E. 403 states:
3
The court properly barred Gild's testimony that defendant sold her heroin.
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Except as otherwise provided by these rules or other
law, 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; or
(b) Undue delay, waste of time, or needless
presentation of cumulative evidence.
We give a trial court's evidentiary decisions under N.J.R.E. 403
substantial deference. State v. Cole, 229 N.J. 430, 449 (2017). We only reverse
if the evidentiary ruling "constitutes an abuse of discretion." Ibid. (quoting State
v. Feaster, 156 N.J. 1, 82 (1998)). Abuse of discretion occurs in this context
where "the probative value of the evidence 'is 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."
State v. Santamaria, 236 N.J. 390, 406 (2019) (alteration in original) (quoting
Cole, 229 N.J. at 448). However, "[e]ven when evidence is 'highly damaging'
to a defendant's case, 'this cannot by itself be a reason to exclude otherwise
admissible and probative evidence.'" State v. Outland, 458 N.J. Super. 357, 369
(App. Div. 2019) (quoting Brockington, 439 N.J. Super. at 333).
The party seeking exclusion has the burden of convincing the court that
N.J.R.E. 403 applies. Santamaria, 236 N.J. at 407. A trial court must engage in
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"fact-specific evaluation of the evidence in the setting of the individual case" to
determine whether it will admit the evidence. Cole, 229 N.J. at 448.
Defendant argues Detective Zaro's testimony was unduly prejudicial
because it suggested that defendant was involved in prior criminal activity. At
trial, the State argued that the evidence was probative because it showed the jury
how the police found defendant and how he became a suspect. The fact that
Detective Zaro recognized defendant's number did not necessarily lead to the
conclusion that there was a criminal element to their relationship. Indeed, the
more probative and damaging testimony on defendant's prior criminal history
was his own, not Detective Zaro's. Defendant testified at trial that he had
previously been charged with possession of heroin, that he planned to purchase
heroin from the victim, and that he planned to sell or trade marijuana to the
victim in exchange for heroin.
Additionally, the court and the parties agreed to sanitize the information.
During sidebar, the parties agreed to permit the State to pose Zaro questions on
direct to inform the jury as to how he knew defendant. During Zaro's testimony,
the court stepped in. It acknowledged that line of questioning could create
speculation. The court also instructed the jury that speculation is not evidence.
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The court's instruction and the State's follow up questions sufficiently addressed
the issue of undue prejudice.
Detective Zaro's testimony may have been damaging, see Outland, 458
N.J. Super. at 369-70, but it did not "divert the jurors from a reasonable and fair
evaluation of the issues." Santamaria, 236 N.J. at 406 (internal quotation marks
and citation omitted). Moreover, "[e]ven when evidence is 'highly damaging' to
a defendant's case, 'this cannot by itself be a reason to exclude otherwise
admissible and probative evidence.'" Outland, 458 N.J. Super. at 369 (quoting
Brockington, 439 N.J. Super. at 333).
C.
Defendant next argues that the sentencing court erred by not merging
counts two, three, and four with one. The State concurs, but notes merger would
not affect the sentencing of defendant.
Merger is based on the principle that "an accused [who] has committed
only one offense cannot be punished as if for two." State v. Dillihay, 127 N.J.
42, 46 (1992) (alteration in original) (quoting State v. Cole, 120 N.J. 321, 325-
26 (1990)). There are two steps used to analyze merger issues. First, the court
considers "whether the legislature has in fact undertaken to create separate
offenses." State v. Miller, 108 N.J. 112, 116 (1987) (quoting State v. Davis, 68
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N.J. 69, 77-78 (1975)). This step focuses on the elements of the crime and the
Legislature's intent in creating them. Ibid. Second, the court must consider the
"episodic fragments of the events." Ibid. (quoting State v. Truglia, 97 N.J. 513,
521 (1984)). The second step focuses on
the time and place of each purported violation; whether
the proof submitted as to one count of the indictment
would be a necessary ingredient to a conviction under
another count; whether one act was an integral part of
a larger scheme or episode; the intent of the accused;
and the consequences of the criminal standards
transgressed.
[Id. at 117 (quoting Davis, 68 N.J. at 81).]
The two-step analysis leads us to conclude that counts two, three, and four
should be merged into count one. The parties agree.
D.
Next, defendant contends the trial court "violated its obligations to engage
in a qualitative analysis of the relevant aggravating and mitigating factors and
to explain the reasons behind [defendant's] sentence." "Appellate review of
sentencing is deferential, and appellate courts" should not "substitute their
judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65
(2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). "But the deferential
standard of review applies only if the trial judge follows the Code and the basic
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precepts that channel sentencing discretion." Ibid. To determine whether the
trial court abused its discretion, a reviewing court must 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) (quoting State
v. Roth, 95 N.J. 334, 364-65 (1984)).]
"An appellate court may also remand for resentencing if the trial court
considers an aggravating factor that is inappropriate to a particular defendant or
to the offense at issue." Ibid. (citing State v. Pineda, 119 N.J. 621, 628 (1990)).
However, a sentencing court must do more than merely compare the number of
aggravating and mitigating factors. See id. at 72-73. The sentencing court must
explain how they arrive at a sentence and support their findings of aggravating
and mitigating factors with facts from the record. Case, 220 N.J. at 65; R. 3:21-
4(g).
We give deference to the sentencing court where it properly follows the
Code and the supporting precepts. The record does not show that the court m et
that standard here. While the court made findings as to which aggravating
factors it chose to balance against mitigating factors, it did not place on the
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record any facts in support of aggravating factor findings. In its only relevant
reference to aggravating factors, the court stated: "[i]n reviewing the statutory
factors I find three aggravating factors, three, the risk of re-offense, six, the
extent of [defendant's] prior criminal record and the seriousness of the offenses
for which [defendant has] presently been convicted, and nine, the need to deter."
After supporting its mitigating factor findings with facts, the court found that
the aggravating factors substantially outweighed the mitigating factors. We
cannot conclude that the "trial judge follow[ed] the Code and the basic precepts
that channel sentencing discretion." Case, 220 N.J. at 65.
We remand to the court in order to address this oversight and perform a
more fulsome aggravating and mitigating factor analysis at resentencing. In
light of this remand, we do not reach the excessive sentence issue.
Affirmed in part, reversed in part, and remanded for resentencing
consistent with this opinion. We do not retain jurisdiction.
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