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State v. Taylor

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 8, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARIC TAYLOR, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0862.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Sapp-Peterson, Messano and Newman.

Defendant Aric Taylor appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of second-degree reckless manslaughter in the death of Tamara Mitchell, N.J.S.A. 2C:11-4(b)(1); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. On appeal, defendant raises the following issues for our consideration:

POINT ONE

THE COURT COMMITTED ERROR IN ADMITTING EXTENSIVE EVIDENCE OF "OTHER WRONGS" AND "BAD ACTS" OF THE DEFENDANT PREJUDICING HIS RIGHT TO A FAIR TRIAL.

POINT TWO

THE PROSECUTOR'S IMPERMISSIBLE COMMENTS TO THE JURY WERE PREJUDICIAL AND WARRANT A REVERSAL OF THE JURY'S VERDICT. (Not Raised Below)

POINT THREE

BY FAILING TO DEFINE THE TERM "REASONABLY BELIEVING" IN ITS CHARGE, THE COURT IMPROPERLY INSTRUCTED THE JURY WITH REGARD TO THE LAW OF ENDANGERING A VICTIM []. (Not Raised Below)

POINT FOUR

IT WAS ERROR FOR THE COURT NOT TO INSTRUCT THE JURY THAT IN ORDER TO CONVICT THE DEFENDANT OF ENDANGERING AN INJURED VICTIM THAT IT MUST FIND THAT THE DEFENDANT'S FAILURE TO ACT CAUSED OR THREATENED SOME ADDITIONAL HARM TO THE VICTIM. (Not Raised Below)

POINT FIVE

THE COURT SHOULD HAVE MERGED THE CONVICTION OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH THE CONVICTION OF RECKLESS MANSLAUGHTER. (Not Raised Below)

POINT SIX

THE COURT DID NOT PROPERLY APPLY AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE ON THE DEFENDANT.

We have considered these contentions in light of the record and applicable legal standards. We reverse and remand for a new trial.

I.

This case involved the shooting death of Tamara Mitchell on March 30, 2003, in Paterson, following a confrontation between

1) Mitchell; 2) defendant, who was her boyfriend; 3) Kevin Roberts, defendant's friend; and 4) Calvin Scott, Mitchell's former boyfriend. Roberts and defendant were indicted in the same indictment. While defendant was charged only with those offenses for which he was convicted, Roberts was charged with the first-degree purposeful and knowing murder of Mitchell, N.J.S.A. 2C:11-3(a)(1); first-degree attempted murder of Scott, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. Roberts was also indicted for a series of weapons offenses, the operative date of which was August 1, 2003, and which were severed from the indictment.*fn1 Scott was also indicted in the same indictment as defendant and Roberts and charged with second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).

The site of the homicide was the rear parking lot area of 360 East 18th Street, Paterson, a home owned by the victim's mother, Patricia Stewart. At trial, Gloria Dennis, a friend of Stewart's, who resided at the house and considered herself to be the victim's aunt, testified as the State's first witness. Also residing in the house at the time along with Stewart and Dennis was Shashana Reynolds, the victim's sister, her husband and their child, as well as Stewart's other daughter, Zahara. Dennis testified that in December before the shooting, Mitchell moved out of the home and took up residence with her aunt, Joy Dixon.

Dennis further testified that Mitchell had dated Scott but broke up with him and started dating defendant. Scott, however, remained friendly with the family and had "business transaction[s]" with Stewart that required him to visit the home at least once a week, usually on the weekend. Dennis claimed that Mitchell told her she planned to break up with defendant, and move from her current apartment on Monday, March 31, 2003. After the shooting, Dennis claimed she went to Dixon's home and saw the victim's and defendant's belongings packed and ready to move. Dennis testified that Mitchell arrived at the house on Sunday, March 30, to pick up some sheets for her apartment. When Mitchell left, Dennis went to a window and saw her walk to her car parked in the rear of the house.

From this point in her testimony, when she described the critical events of the actual shooting, Dennis' recollection differed significantly from some of the State's subsequent witnesses. She observed defendant drive into the parking lot at the rear of the house and remain in his car, and then saw Scott arrive in his car, exit the vehicle, and walk toward the house.

Dennis claimed she heard gunshots, saw defendant with a gun in his hand as he stood next to his car, and told Reynolds, who was also in the house, to call the police. She saw another person with a gun standing next to defendant's car. Dennis heard someone yelling to "come and help Tamara," but she was frightened and did not leave the house immediately. She testified that when she went outside, she saw a neighbor holding Mitchell who was bleeding from her mouth. Dennis further testified that Mitchell died before the ambulance arrived at the scene, some twenty-five minutes later.

Reynolds, Mitchell's sister, testified that on the day of the incident, she arrived home at approximately 4:00 p.m. and was resting in her room when Dennis banged on her door. She went to a window and observed Mitchell and Scott "chit-chatting" in the parking lot with Scott's hand resting gently on Mitchell's upper arm. Reynolds saw defendant exit his car, "bend down, grab his gun and start firing." She ran to the kitchen to call 9-1-1 and when she returned to the window, she saw Roberts, the other man standing next to defendant's car, firing his gun. Reynolds saw Roberts get in defendant's car prior to it speeding away from the yard. Reynolds then went outside to assist Mitchell and await the arrival of the ambulance. However, it was too late, and Mitchell died in her sister's arms before the ambulance arrived, by Reynolds's estimate some five minutes later.

Reynolds also testified that approximately one month before her sister's death, she was in the kitchen of the house when defendant approached Mitchell and threatened to kill her and Scott if she ever left him and returned to Scott. On cross-examination, Reynolds acknowledged that when she looked out into the back parking lot area, she also saw Scott with a gun, standing near her sister, and pointing it in defendant's direction.

The State's next witness was Passaic County Sheriff's Officer Craig Goodson. Goodson testified that at approximately 4 p.m. on the day in question, he was home in bed trying to sleep when he heard gunshots. He looked out his window and observed three individuals "ducking and running around inside the parking lot" at 360 East 18th Street. Goodson observed a green car leave the lot and saw one man leaving the area on foot, armed with a gun. Goodson left his house, and, after searching in vain for the armed man, later revealed to be Roberts, Goodson went to the parking lot where he saw Mitchell mortally wounded.

When a police unit arrived at the scene, Goodson jumped in the car and attempted to locate Roberts. Scott, who had also left the area, returned and was standing across the street from the scene of the shooting. When Goodson and his fellow officers ordered him to the ground, Scott "blurted out [']I wasn't the shooter. The shots were for me. That was my girl friend' . . . ." Scott was placed under arrest but had no gun in his possession at the time.

Patricia Stewart, the victim's mother, testified that her daughter had been involved romantically with defendant, but, because defendant was not welcomed in her home, her daughter moved out of her house in November 2002. Stewart testified that the night before the shooting, defendant had repeatedly called her home looking for Mitchell.

Dr. Chase Blanchard, the State's medical examiner, performed the autopsy on Mitchell and opined that she died from a gunshot wound to the chest. He noted that a single projectile passed through Mitchell's left wrist, through her chest, and into her upper right arm, from where he recovered the badly deformed bullet. Blanchard testified that Mitchell "was alive and pumping blood" after she was shot, and noted that "[t]his type of injury would not have immediately caused the victim to die."

Calvin Scott testified that he had a prior romantic relationship with Mitchell but they had ceased dating, and he remained friendly with her and her family. He was a business partner of Stewart and would often go to her home. Scott testified that he had seen Mitchell on March 28, 2003, and that she had told him she was leaving defendant. Scott claimed Mitchell told him that defendant had "beat her up and [] put a gun to her head and sa[id] if she ever s[aw] [Scott] again he would kill both of [them]." At this point, the judge gave a limiting instruction advising the jury that the evidence was admitted "for the limited purpose of explaining from [] Scott's perspective why he was carrying a handgun."

Scott further testified that on March 30, 2003, he went to Stewart's home armed because of the threats defendant had made. As he parked his car in the rear lot, he noticed defendant standing beside his own car. Upon seeing defendant, Scott placed his gun in his waistband and then walked toward the house. At that point, Mitchell exited the house and defendant called for her to come to him. Scott testified that he took Mitchell's hand to walk her back inside the house, and as he did so, he heard two gunshots.

Scott pulled Mitchell down to the ground next to him and as he arose, he saw defendant and Roberts running toward him with guns. Scott then pulled out his own gun and ran across the street, heading toward East 19th Street. As he fled, he tossed his weapon into the yard of a house. Scott claimed that he did not know Mitchell had been shot, returned to the scene to see if she was okay, and was arrested by Goodson and another officer.

On cross-examination, Scott acknowledged that he had pled guilty to unlawful possession of a handgun and was awaiting sentencing. He confirmed that his plea bargain contemplated that he would receive a probationary sentence "if he testified against [defendant and Roberts]."

Leona Markham, who lived in an apartment below Mitchell, also testified for the State. One or two weeks before the incident, Markham claimed that she heard noise coming from Mitchell's apartment. She "knew" defendant was there at the time and she described the noise as "fighting, tumbling" and thought it sounded like "somebody banging around or trying [to] escape." She also stated that the day before Mitchell was killed, defendant and another male were sitting in a car outside of the building. Markham observed defendant watching the victim's apartment from across the street.

Kirk Simon was Mitchell's cousin and an acquaintance of defendant's. At an N.J.R.E. 104 hearing conducted outside the jury's presence, Simon, who was serving a sentence in Georgia at the time, testified that approximately six months before the shooting, he worked on defendant's car and noticed a gun under the driver's seat. He described the gun as having a black barrel with a brown handle and that it looked like a .357 revolver. The judge interrupted the testimony, and advised the prosecutor, "I am starting to think that . . . I have to make an analysis under State v. [Cofield]."*fn2 After the testimony was completed, the judge conducted that analysis, and permitted Simon to testify about finding a gun in defendant's car, "six to nine months before the incident." We discuss in greater detail below the judge's rationale for this decision. Simon's testimony before the jury was similar to that which he gave during the hearing, and was followed by a limiting instruction by the judge.

Detective Scott Heath of the Passaic County Prosecutor's Office was the State's final witness. He investigated the scene and recovered four shell casings, three near Mitchell's body and one toward East 18th Street. One bullet was recovered from the front passenger side tire of Stewart's truck, one was found in the siding of a house across from the parking lot, and one was recovered from Mitchell's body at the autopsy. The fourth bullet was never recovered, though there was evidence that it had struck Stewart's house. Scott's gun was recovered in the rear yard of a nearby house, but ballistic tests revealed that none of the shell casings or bullets came from that weapon.

Heath testified that defendant came to police headquarters the day after the shooting and at first denied that there had been anyone with him at the scene of the shooting. Eventually defendant changed his story, now claiming he picked up Roberts and his girlfriend earlier in the day, and that Roberts brought two guns with him. Heath testified he took a formal written statement from defendant that he then read to the jury.

In that statement, defendant claimed that he arrived at the house with Mitchell, Roberts, and Roberts's girlfriend. When Mitchell went into the house to get some sheets, defendant saw Scott arrive, walk toward the house, and confront Mitchell. He heard Mitchell tell Scott to "behave [him]self, calm down, and don't be stupid." Defendant told Mitchell to go in the house and get the sheets and then saw Scott pull out a gun and point it at him. Defendant heard shots fired as he ducked behind one of the cars, and saw Roberts with a gun. Defendant retrieved a gun, a revolver, from the car, but never fired it. After the shooting, defendant gave his gun to Roberts, who left the parking lot on foot. Scott was no longer at the scene, and defendant fled in his car. Defendant claimed that he did not know Mitchell had been shot, and left the scene because he was "scared and shocked after" hearing the shots.

Heath then reviewed much of the physical evidence that was found at the scene, and ultimately rendered an opinion that Mitchell was most likely struck as Scott pushed her toward the ground behind one of the cars. He also opined that Roberts fired the shot that killed Mitchell and continued to shoot in Scott's direction as he fled the scene. On cross-examination, Heath admitted that gunshot residue testing revealed "trace amounts of suspect[ed] gun shot residue" on Scott's clothing, and "no physical evidence to . . . indicate that [defendant] was shooting at someone that day."

After the State rested, defendant moved for a judgment of acquittal which was denied. Defendant did not testify or produce any witnesses. After the prosecutor and defense counsel delivered their respective summations, the jury was charged and returned the verdicts we referenced above.

Defendant subsequently moved for a new trial, essentially arguing that the admission of Scott's testimony regarding Mitchell's statements to him, and the admission of Simon's testimony, was error. He also argued that the evidence was insufficient to prove defendant committed any "volitional act" that would make him guilty of manslaughter. After denying the motion, the judge imposed sentence, finding aggravating factors three (the risk defendant would commit another offense) and nine (the need to deter). N.J.S.A. 2C:44-1(a)(3) and (9). He also found mitigating factor seven (defendant's lack of any prior criminal history). N.J.S.A. 2C:44-1(b)(7). He sentenced defendant to nine years imprisonment on the manslaughter count, eighty-five percent of which was to be served without parole pursuant to NERA. The judge merged the two weapons offenses and sentenced defendant to a concurrent term of seven years, three and one-half years without parole pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). On the conviction for endangering a victim, the judge imposed a consecutive term of four years imprisonment. This appeal ensued.

II.

Defendant argues that it was error for the judge to permit the State to introduce "extensive evidence of 'other wrongs' and 'bad acts' . . . through the testimony of Scott, Markham, Reynolds, and Simon, the cumulative effect of which portrayed him as "a violent man," who "had made a threat against [] Mitchell at gunpoint," and "was in the habit of carrying a gun." We conclude that the admission of some of the testimony was a mistaken exercise of discretion, and "raise[s] a reasonable doubt as to whether [the evidence] led the jury to a verdict it otherwise might not have reached.'" State v. Bankston, 63 N.J. 263, 273 (1973)(citing State v. Macon, 57 N.J. 325, 335-36 (1971)). We are therefore constrained to reverse defendant's conviction.

We begin by noting that the judge reviewed the various proffers regarding the testimony of Scott, Markham, and Reynolds before opening statements, apparently based upon a written synopsis provided by the State.*fn3 He conducted no N.J.R.E. 104 hearing with respect to these three witnesses, using that procedure solely to assess Simon's testimony. It is unclear whether defense counsel ever requested a hearing prior to these witnesses testifying before the jury, however, we glean from the discussion in the record that defendant objected to the admission of the testimony.

During the pre-trial colloquy, after apparently reviewing the prosecutor's submission and referring to it, the judge ruled, "[a]s to [] Markham . . . I'm going to permit all of that testimony," with the exception of a minor point that is irrelevant to our consideration of the issue. With regard to Scott's testimony, the judge ruled, "I'm going to permit it. I want to wait until I hear the testimony. The question is am I permitting it for the limited purpose of explaining why he was carrying a weapon or why the State gave him the plea offer it did . . . ? And I would tell the jury it's not being offered for the truth."

As to the testimony of Reynolds, it is clear that the prosecutor was not sure as to its details. She candidly told the judge, "Reynolds may testify--again may. I don't know what's going to come out of her mouth when she gets on the stand . . . ." The judge interrupted, "I'll cut you short because she's going to say she heard it directly from [defendant] and it would be an admission." But defense counsel noted, "[W]e don't know what these lay witnesses are going to come in and say," and argued that the prosecutor, who had interviewed the witnesses and prepared the summary for the court, had become a necessary witness.

We believe the judge correctly disagreed with any request to call the prosecutor as a witness. However, the issue necessitated a hearing, at which Detective Rick Ferreira of the prosecutor's office, present at least during the prosecutor's interview of Scott, confirmed that the synopsis of the testimony provided to the judge and defense counsel was accurate.

A.

We begin by reviewing defendant's arguments with respect to Reynolds, who testified that approximately a month before the victim's death, she was present when defendant told Mitchell that he would kill her and Scott if she ever left him for Scott.

Following this testimony, the judge gave the Hampton charge to the jury.*fn4

We have held that an N.J.R.E. 104(c) hearing is unnecessary if the defendant's statement to a non-police witness was made during the actual commission of the crime, State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div.), certif. denied, 149 N.J. 143 (1997), and, we acknowledge that the necessity for such a hearing is open to some debate. See N.J.R.E. 104(c)(requiring the hearing only when "by virtue of any rule of law a judge is required . . . to make a preliminary determination as to the admissibility of a statement by the defendant)(emphasis added); see also Biunno, N.J. Rules of Evidence, comment 6 on N.J.R.E. 803(b)(2008). However in this case, for a variety of reasons, such a hearing should have been held before Reynolds testified as to this alleged threat.

First, although the judge characterized the testimony regarding defendant's threat as an "admission," it was not one in the usual sense. In other words, unlike the defendant in Baldwin, supra, defendant's statements allegedly made in front of Reynolds were not part of the criminal event for which he was being tried, although the evidence may have been relevant to prove some other material fact at issue in the case. Second, there was clearly some controversy as to whether Reynolds's testimony was going to be consistent with the prior statements she made to the prosecutor. The comments of the prosecutor acknowledge this. Therefore, the better course would have been to have had Reynolds testify at an N.J.R.E. 104(c) hearing and provide the opportunity for defendant to challenge her testimony regarding the threat. See Biunno, supra, (noting that "[w]here there is any question regarding the admissibility or scope of admissibility of an alleged statement of a defendant . . . the better practice appears to be to conduct a preliminary hearing to assess the totality of circumstances regarding the alleged statement and to provide the defendant an opportunity to testify on that limited issue")(citing N.J.R.E. 104(d) (emphasis added)). Third, and most importantly, we conclude that the evidence needed to be analyzed within the framework of N.J.R.E. 404(b), and, therefore, an N.J.R.E. 104 hearing was required. State v. Hernandez, 170 N.J. 106, 130 (2001); see also State v. Kemp, 174 N.J. 412, 432 (2002)(holding that the trial judge should conduct an N.J.R.E. 104 hearing even if the proponent of the challenged evidence fails to request such a hearing).

The State's theory of the case, as repeatedly expressed by the prosecutor, was that defendant intended to kill Scott because of a jealous rage, fueled by Mitchell's intention to end the relationship and defendant's knowledge of her prior relationship with Scott. Mitchell was the unintended victim of defendant's criminal purpose. The State contended that defendant traveled with Roberts on the day in question because Roberts was a fearsome character, capable of murder, and that defendant was Roberts' accomplice that day.*fn5 Therefore, we fully accept the proposition that Reynolds's testimony was relevant to establish defendant's jealousy as a motive for confronting Scott. See State v. Nance, 148 N.J. 376, 388-89 (1997)(concluding that N.J.R.E. 404(b) evidence of jealous conduct by defendant toward his girlfriend was admissible to establish "intent, motive, and the absence of an accident" in shooting her male friend).

However, the evidence of defendant's threat to kill Mitchell and Scott, though admissible under an exception to the hearsay rule, N.J.R.E. 803(b)(1), was only relevant evidence to the prosecution for the crimes with which defendant was charged if it tended to prove some other fact at issue, such as defendant's motive on the day of the shooting. Therefore, evidence of defendant's threat to kill Mitchell and Scott made a month before the shooting was only admissible pursuant to N.J.R.E. 404(b).*fn6

We digress briefly to review some basic principles. N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "[s]uch evidence may be admitted 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." Ibid. In Cofield, supra, 127 N.J. at 338, the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Williams, 190 N.J. 114, 122 (2007).]

"Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: '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.'" State v. Lykes, 192 N.J. 519, 534-35 (2007)(quoting N.J.R.E. 403).

We accord "great deference to the decision of the trial [judge]" regarding the admissibility of N.J.R.E. 404(b) evidence. Barden, supra, 195 N.J. 375, ___ (slip. op. at 14-15). In order to minimize the "inherent prejudice in the admission of other-crimes evidence," the judge must "sanitize the evidence when appropriate" before it is presented to the jury. Id. at 13. After the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence. Id. at slip op. 14; Cofield, supra, 127 N.J. at 341; see also State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.) (recommending that limiting instruction be provided when evidence is admitted, and repeated at the conclusion of the case), certif. denied, 165 N.J. 138 (2000).

Although it would have been preferable for the judge to have conducted a full hearing before admitting Reynolds's testimony before the jury, standing alone this procedural infirmity would provide no basis for reversal. In Lykes, supra, the Court reiterated that the failure to hold an N.J.R.E. 104 hearing is not a bar to the admission of N.J.R.E. 404(b) evidence if the testimony otherwise satisfied the Cofield test. 192 N.J. at 534-36 (noting that the appropriate standard of review is de novo if the trial judge fails to conduct any N.J.R.E. 404(b) analysis). Here, we have no doubt that Reynolds's testimony was properly admitted under the Cofield test, however, a limiting instruction was appropriate and should have been given.

We consider the admission of Markham's testimony to have been similarly procedurally flawed. No N.J.R.E. 104 hearing was held, the judge made no specific findings as to the relevance of this testimony, and no limiting instruction was provided after the testimony was given or in the final instructions. We assume the evidence could only have been admitted to prove that defendant assaulted Mitchell one or two weeks before the homicide, and, taken in conjunction with Markham's testimony that on the day before the shooting, defendant and another man were outside the apartment apparently waiting for Mitchell, it tended to prove the extent of defendant's jealousy and possessive nature, once again, his motive.*fn7 Nance, supra, 148 N.J. at 388-90.

However, we are less sure that if subjected to a scrupulous Cofield analysis, this evidence would have been admitted. Markham never testified that she saw defendant in the apartment during the altercation, never asked Mitchell about it afterwards, never called for police assistance, and was not precisely sure when it happened, though during her testimony she claimed to have heard the noises on more than one occasion. Thus, under Cofield's third prong, considering the issue de novo, we cannot conclude that the evidence the State adduced regarding defendant's assault of Mitchell was "clear and convincing." If the matter is retried, the State is free to produce Markham again for an N.J.R.E. 104 hearing, and the judge may determine the admissibility of her testimony anew.

B.

We next consider Scott's testimony that on March 28, two days before the shooting, Mitchell told him that defendant, on some unspecified prior occasion, had assaulted her, held a gun to her head, and threatened to kill her and Scott if he saw them together. The judge concluded that the evidence was admissible because it was not being offered for the truth of the matter stated, i.e., that defendant had made such threats, but rather because it explained Scott's possession of a gun on the day in question. He charged the jury accordingly immediately after the testimony was given.

Implicit in the judge's ruling was his conclusion that Mitchell's statements to Scott were not hearsay because they were not being "offered to prove the truth of the matter asserted." N.J.R.E. 801(c). However, in Long, supra, the Court considered a similar situation involving statements the decedent made to a witness, which themselves contained statements defendant had made to the decedent.

In Long, defendant was charged with the homicide of her friend, Tracey Roche. 173 N.J. at 142. The State sought to introduce evidence of two conversations defendant had with Roche as they were relayed by Roche to her mother, Irene, the State's witness. Id. at 143. In essence, Irene would testify that on August 27, defendant had called Roche to cancel a lunch appointment, and told her that her aged mother, Mabel Long, had fallen down some stairs. Irene would testify that she overheard the phone call, and that Tracey relayed defendant's side of the conversation to her immediately after the phone call. Irene would further testify that the next day, August 28, when Tracey called defendant to check on Mabel's health, her daughter told her that defendant said Mabel had died as a result of the fall. Ibid.

In fact, Mabel Long did die as a result of a fall down stairs in the home she shared with the defendant, but her death did not occur until August 30, i.e., two days after defendant told Roche her mother was dead. Id. at 143-44. Roche ultimately went missing on the same day that defendant's mother died, and her body was not found until weeks later. Forensic evidence, defendant's statements to the police, and other corroborative evidence ultimately led to defendant's indictment for Roche's murder.

It was the State's theory that Roche's statements to her mother regarding defendant's statements to her during the two phone conversations provided evidence of defendant's motive because Tracey "could inculpate defendant in the fall and death of Mabel Long." Id. at 150. The State argued that defendant's statements to Tracey were not hearsay because they were not being introduced to prove the truth of the matters asserted, and that Tracey's statements to her mother were admissible under various exceptions to the hearsay rule. Ibid. Defendant argued that the evidence lacked sufficient probative value as to motive, and "that the inference that defendant killed Mabel Long [was] other-crime evidence and the State [was] unable to meet the four-pronged test for admissibility of such evidence under Cofield." Ibid.

The Court concluded that the statements made by defendant were "not hearsay because they are not offered for the truth of the matter--that Mabel actually fell on August 27 and died on August 28." Id. at 152 (citation omitted). However, the Court noted

[W]hen Irene testifies at the trial concerning what Tracey told her, the State must prove that Tracey accurately reported to Irene what defendant told her and that the State must rely on hearsay to do so. Because the State must rely on hearsay to prove that defendant actually made the two reputed statements to Tracey, we conclude that the two statements must be treated as hearsay as between defendant and Tracey and as between Tracey and Irene. That said, we must decide whether any exception to the hearsay rule applies to the statements as required by N.J.R.E. 802.

[Id. at 152-53.]

The Court ultimately concluded that Tracey's statements to her mother were admissible by applying both the res gestae exception, N.J.R.E. 803(c)(3), and the excited utterance exception, N.J.R.E. 803(c)(2). Id. at 157-58.

However, the Court further noted that even if the evidence was admissible, and did not require any N.J.R.E. 404(b) analysis because it was not other crimes evidence, the probative value of the evidence needed to be weighed against its prejudicial effect upon the defendant, i.e., the "suggestion or an inference in the minds of jurors regarding defendant's culpability for her mother's death." Id. at 161. Thus, the Court conducted a N.J.R.E. 403 analysis utilizing the Cofield test, ibid., ultimately concluding the evidence was admissible.

We apply a similar analysis to the admission of Scott's testimony regarding the statements Mitchell made to him two days before the homicide. Even though the evidence was being introduced for a limited purpose that was independent of whether defendant actually made the threats, it still needed to be subjected to a hearsay analysis because, paraphrasing the Court's language in Long,

[T]he State must prove that [Mitchell] accurately reported to [Scott] what defendant told her and . . . the State must rely on hearsay to do so. Because the State must rely on hearsay to prove that defendant actually made the [threats] to [Mitchell] . . . the [threats] must be treated as hearsay as between defendant and [Mitchell] and as between [Mitchell] and [Scott].

When we apply that paradigm to the evidence in this case, it is clear that it was inadmissible.

Defendant's statements to Mitchell would be admissible if she were a witness because they are admissible as exceptions to the hearsay rule. N.J.R.E. 803(b)(1). However, we can see no exception to the hearsay rule that would permit Scott to testify about Mitchell's statements to him. N.J.R.E. 804(b)(6), excepting the trustworthy statements of deceased declarants from the hearsay rule, does not apply to criminal cases. Biunno, supra, comment 5 on N.J.R.E. 804 (2008). Nor, based upon the trial testimony, can we conclude they were admissible under any of the exceptions contained in N.J.R.E. 803(c)(1)-(3). Mitchell did not tell Scott when defendant made the alleged threats and there was no testimony regarding her demeanor when she spoke to Scott. In short, we conclude the testimony was inadmissible.

Even if we are incorrect and the testimony was admissible for the limited purpose of explaining Scott's state of mind, pursuant to the probative/prejudicial weighing test employed by the Court in Long, its prejudice severely outweighed its limited probative value.

The judge concluded that Scott's state of mind, i.e., the reason he possessed a gun on March 30, was relevant evidence. Its only relevance, however, was to prove that Scott was not the aggressor and that defendant was. See State v. Chavies, 345 N.J. Super. 254, 273 (App. Div. 2001)(noting relevancy of victim's state of mind to show that she "so feared defendant that she was an unlikely aggressor so as to counter defendant's claim to self-defense"). However, Scott admitted that he possessed a gun and removed it from his waistband during the confrontation, though he denied pointing it at Roberts or defendant even though other witnesses said he did. His knowledge of the alleged threats made by defendant may explain his possession of the gun, but they hardly demonstrate he was the less likely aggressor; in fact, they may even tend to prove the opposite, i.e., his belief that defendant conveyed threats to Mitchell made it more, not less likely, that he would respond to a confrontation with deadly force.

Weighed against this minimal probative value, the prejudicial effect of the testimony was significant. The jury was told that defendant held a gun to Mitchell's head and threatened to kill her and Scott if they were seen together. It was the State's theory, as reiterated by the prosecutor in summation, that in fact that was precisely what happened. Defendant knew it was likely that Scott would be at the house because it was a Sunday, brought Roberts with him to supply the guns and the necessary "muscle," and waited until Scott arrived and approached Mitchell before confronting him. Seen through this prism, and without the benefit of an extensive limiting instruction, the jury may have considered the evidence that defendant conveyed such threats to Mitchell, not as a reason to explain why Scott had a gun, but rather as further proof of defendant's motive, i.e., his jealous resentment of Scott's continued involvement with Mitchell.

The judge only instructed the jury that the evidence of defendant's threats to Mitchell as relayed to Scott was not being introduced to prove that defendant actually made the threats, though he never explained to the jury that they could not consider that the threats were made. He told the jury that they could consider the evidence only for the purposes of explaining why Scott possessed a gun on the day in question and for no other purpose. However, the relevancy of Scott's state of mind--why he was carrying the gun--and how it could be considered in the context of defendant's self-defense claim was never explained to the jury. We conclude that even if the evidence was properly admitted because it tended to demonstrate Scott's state of mind, the limiting charge was inadequate, and further exacerbated the prejudicial effect of the testimony.

When he considered this issue on the motion for a new trial, the judge also felt that this evidence would eventually be introduced through defense counsel's cross-examination of Scott or through the defense case in general. In other words, once it was established that Scott possessed a gun, and defendant asserted that Scott pointed it at him, the State should be allowed to have Scott explain why he had the gun. We do not deny that such a possibility was likely, however, under those circumstances, a sanitized version of defendant's alleged threats might have been admissible. In short, Scott might have been permitted to simply say he was aware of threats defendant made, without detail and without the overtly prejudicial aspect of the testimony.

We must conclude that the admission of this evidence was highly prejudicial, clearly outweighed any probative value, and was a mistaken exercise of the judge's discretion.

C.

Following an N.J.R.E. 104 hearing, the judge gave a thoughtful oral decision explaining his rationale for admitting Simon's testimony. Applying the Cofield four-prong analysis, the judge concluded Simon's testimony that he observed a revolver in defendant's car when he serviced it some six to nine months earlier was relevant to a "material issue" in the case. Specifically, Simon's testimony would negate defendant's claim that Roberts supplied the guns on the day in question. Next, the judge determined that Simon's testimony involved defendant's "possession of a handgun in this exact same car at the same location in the area under the driver's seat," conduct that was "almost identical" to defendant's conduct on the day in question.

However, the judge acknowledged that whether the prior conduct was "reasonably close in time" to the crimes charged was "not an easy question to answer." He concluded the conduct was reasonably close in time because it "occurred during the time frame when [] Mitchell [] stopped dating [] Scott and started dating [defendant]." Because it was "smack in the middle" of the formation of this "love triangle," the judge determined it was not "remote." Finding Simon to be a credible witness, the judge determined the evidence of defendant's prior conduct was "clear and convincing." Lastly, the judge found the probative value of the evidence outweighed its prejudicial effect, and concluded it was admissible to prove defendant's "opportunity" to have a gun on the day in question, and his "knowledge" that the gun was there. When he charged the jury following Simon's testimony, and again at the conclusion of the case, the judge advised that the evidence could only be used "for the limited purpose of determining how it pertains to the opportunity for [defendant] to possess [a] weapon, on March 30th, 2003."

We agree with all of the judge's conclusions regarding the admission of Simon's testimony, except with respect to prong two of the Cofield analysis. While the conduct was "similar in kind," it was not "close in time," and therefore its probative value, i.e., that it tended to prove defendant had his own gun under the seat of his car on March 30, 2003, was significantly diminished. Rather, because of the temporal distance, the more likely, though impermissible, inference to be drawn from the evidence was that defendant always had a gun under the seat of his car, that is, he was disposed to keep a gun in the car and acted in a manner consistent with that disposition on March 30, 2003. Of course, such an inference is at the core of N.J.R.E. 404(b)'s exclusion.*fn8

The judge noted the significant lapse of time, but concluded the evidence was not "remote" because it occurred when Mitchell began her relationship with defendant, and severed her romantic ties with Scott. However, there was no evidence that the relationship was born of acrimony, or that defendant immediately became resentful of Scott. In short, we fail to see how those facts support a conclusion that Simon's observations made six to nine months earlier tend to prove defendant's opportunity to possess a gun on March 30, 2003. We conclude that the admission of Simon's testimony was a mistaken exercise of the judge's discretion.

In sum, we are convinced that the admission of Markham's testimony, Scott's testimony regarding Mitchell's conversation in which she relayed defendant's threats, and Simon's testimony was improper. Taken together, we must also conclude that the evidence had a clear capacity to produce an unjust result, and reversal is required.

III.

We consider the issues defendant raises in Points III and IV regarding the jury charge on the crime of endangering an injured victim, N.J.S.A. 2C:12-1.2, for the purpose of providing guidance in the event of a retrial.

The statute in relevant part provides,

a. A person is guilty of endangering an injured victim if he causes bodily injury to any person or solicits, aids, encourages, or attempts or agrees to aid another, who causes bodily injury to any person, and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself.

b. As used in this section, the following definitions shall apply:

(1) "Physically helpless" means the condition in which a person is unconscious, unable to flee, or physically unable to summon assistance;

(2) "Mentally incapacitated" means that condition in which a person is rendered temporarily or permanently incapable of understanding or controlling one's conduct, or of appraising or controlling one's condition, which incapacity shall include but is not limited to an inability to comprehend one's own peril;

(3) "Bodily injury" shall have the meaning set forth in [N.J.S.A.] 2C:11-1.

c. It is an affirmative defense to prosecution for a violation of this section that the defendant summoned medical treatment for the victim or knew that medical treatment had been summoned by another person, and protected the victim from further injury or harm until emergency assistance personnel arrived. This affirmative defense shall be proved by the defendant by a preponderance of the evidence. [Emphasis added.]

The statute prohibits the merger of any conviction "with a conviction of the crime that rendered the person physically helpless or mentally incapacitated," and requires the judge to impose a sentence consecutive "to that imposed for any conviction of the crime that rendered the person physically helpless or mentally incapacitated." N.J.S.A. 2C:12-1.2(d).

The judge read the jury the Model Criminal Jury Charge verbatim, and defendant did not request any specific charge nor object to the charge as given. However, on appeal, defendant argues first that the model charge fails to define the words "reasonably believing," thus providing insufficient guidance to the jury under the particular facts of this case because defendant contended that he did not know Mitchell had been shot. He claims this his ignorance was reasonable because Scott, who was standing next to her, indicated that he too did not know if she had been struck. Second, defendant contends that the judge must instruct the jury that to convict defendant of the offense, "it must find that the defendant's failure to act caused or threatened some additional harm to the victim." Defendant's arguments require us to examine the statute, enacted in 2001, and heretofore the subject of limited interpretation. We have already noted the legislative history surrounding the statute is uninformative. State v. Moon, 396 N.J. Super. 109, 117 n. 2 (App. Div. 2007), certif. denied, 193 N.J. 586 (2008). Our research has failed to reveal a similar statute enacted by any of our sister states.

In Moon, we considered the necessary elements of the crime. Id. at 114-15. First, a defendant must "cause[] bodily injury to any person," or be an accomplice, N.J.S.A. 2C:2-6(c), to one who does. N.J.S.A. 2C:12-1.2(a). Although the statute does not specifically define the requisite mental state, we now conclude that the State must prove that the defendant acted "knowingly" in causing the bodily injury. See N.J.S.A. 2C:2-2(c)(3)(noting that in the absence of an "expressly designated" mental state, the culpable mental state is knowingly); Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:12-1.2 (2008). Under the peculiar facts of this case, at any retrial, the jury would be required to find that Roberts, defendant's principal, acted "knowingly" in causing bodily injury to Mitchell, even though defendant can only be responsible for reckless manslaughter as Roberts' accomplice.*fn9

Second, the State must prove that the victim was "physically helpless, mentally incapacitated or otherwise unable to care for himself." While the first two conditions are explicitly defined, N.J.S.A. 2C:12-1.2(b)(1) and (2), the Legislature did not define the last, and we need not do so for purposes of any retrial of this case. In Moon, we held that "[t]he crime cannot be construed to apply to a person who kills another and leaves the body behind[,]" because the statutory terms "are not [those] commonly used to describe the condition of persons who are dead." Moon, supra, 396 N.J. Super. at 116.

Third, the State must prove that the defendant left "the scene of the injury knowing or reasonably believing that the injured person" was in such a condition. N.J.S.A. 2C:12-1.2(a). The model charge defines "knowing" but does not define the phrase "reasonably believing." Defendant argues that the lack of any definition in this case was significant since 1) there was no direct testimony that he knew Mitchell had been shot, and 2) there was circumstantial evidence to conclude that Scott, who was right next to the victim, did not know her condition either. In short, defendant argues the jury was left to speculate what "reasonably believing" meant in the context of the events.

We agree that if the Legislature intended to criminalize a defendant's leaving the scene of an injured victim with a lesser requisite mental state than "knowing" of the victim's helpless condition, it is incumbent that the jury be advised what that state of mind must be. Compare N.J.S.A. 2C:12-1.1, "Leaving Scene of Motor Vehicle Accident" (where knowledge of actual injury is unnecessary and a defendant must only know he was involved in an accident and knowingly leave the scene).

We profess some confusion at the Legislature's choice of the words "reasonably believing." In Moon, our colleagues concluded that in order to prove this element, the State needed to "establish . . . that the defendant left the victim at the scene of the injury knowing (being aware, N.J.S.A. 2C:2-2b(2)) or reasonably believing (disregarding or failing to perceive a risk that a reasonable person would perceive, N.J.S.A. 2C:2-2b(3)) that the victim was in that condition." Moon, supra, 396 N.J. Super. at 115. As our colleagues noted, N.J.S.A. 2C:1-14(j) provides, "'[r]easonably believes' or 'reasonable belief' designates a belief the holding of which does not make the actor reckless or criminally negligent." Moon, supra, 396 N.J. Super. at 115.

The phrase "reasonably believes" is infrequently applied in our Criminal Code to the requisite mental state of a defendant regarding an element of the offense. More frequently, the phrase is used to describe a defendant's mental state in the context of one of the Code's affirmative defenses. See N.J.S.A. 2C:3-3(c)(justification in performance of a public duty); N.J.S.A. 2C:3-4(a) (justification of the use of force in self-defense); N.J.S.A. 2C:3-5(a) (justification of the use of force in defense of others); N.J.S.A. 2C:3-6(a)(justification of the use of force in defense of property); N.J.S.A. 2C:3-7(a)(justification of the use of force in law enforcement); N.J.S.A. 2C:24-1(a)(4)(providing affirmative defense to bigamy based on the defendant's reasonable belief).

Sometimes, the phrase is used to describe a victim's requisite state of mind. See N.J.S.A. 2C:11-1(c)(1)(defining deadly weapon based upon belief); N.J.S.A. 2C:14-2(a)(4)(defining aggravated sexual assault with a weapon based upon victim's reasonable belief); N.J.S.A. 2C:39-4(e)(defining unlawful possession of an imitation firearm based upon observer's reasonable belief). The Code's definition of criminal attempt requires the actor "purposely" engage in conduct or omit to do something, though it "superimposes a reasonable belief standard as to attendant circumstances on the purposive conduct." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:5-1 (2008); see N.J.S.A. 2C:5-1(a)(1)(defendant can be guilty of attempt "if the attendant circumstances were as a reasonable person would believe them to be"); and (a)(3)("under the circumstances as a reasonable person would believe them to be").

There would appear to be only one other offense in the Code that permits a necessary element to be proven by demonstrating defendant's reasonable belief of the attendant circumstances. N.J.S.A. 2C:13-6(a), the crime of "luring a child," is defined as any attempt, "to lure or entice a child or one who [defendant] reasonably believes to be a child into a motor vehicle, structure or isolated area, or to meet or appear at any other place, with a purpose to commit a criminal offense with or against the child." The underscored language was added in 2001, L.2001, c. 233 § 1, with the stated purpose to "clarify that this section shall apply in sting operation type situations, where there is no actual child victim, as long as the person reasonably believes that a child is involved." Sponsor's Statement to A. 2397 (May 8, 2000). Thus, if a defendant reasonably believed the "child" was under eighteen, and the other elements of the crime were proven, his conduct would be criminal even though the "child" was an adult.*fn10 We are unaware of any reported case that has construed the statute since the additional language was added.

By use of the phrase "reasonably believes" in N.J.S.A. 2C:13-6, the Legislature apparently intended to criminalize an actor's conduct even if not directed at a "child," defined by the statute as someone under eighteen years of age. A defendant's subjective reasonable belief of the attendant circumstances, even if erroneous, is sufficient for criminal liability to attach. However, there is no indication that the Legislature intended to criminalize a defendant's conduct under N.J.S.A. 2C:12-1.2 if the victim left behind was in fact not "physically helpless, mentally incapacitated or otherwise unable to care for himself," even though defendant otherwise reasonably believed that to be the case. Under those circumstances a defendant would not be guilty of the crime at all.

In N.J.S.A. 2C:14-2(a)(7), the Legislature defined aggravated sexual assault in terms of the victim's condition, i.e., one who was "physically helpless, mentally defective or mentally incapacitated," terms similar to those used in N.J.S.A. 2C:12-1.2. The culpable mental state under that statute requires that the defendant "knew or should have known" of the victim's condition. In construing this phrase, the Supreme Court noted, "The knowledge requirement contains both a subjective element -- whether defendant knew -- and an objective element --whether defendant should have known. Defendant can avoid liability only if neither the subjective nor the objective element is proved." State v. Olivio, 123 N.J. 550, 568 (1991).

But, the Legislature did not utilize an objective phrase to describe the requisite state of mind in N.J.S.A. 2C:12-1.2. It did not state that an actor would be guilty of the crime if he "knew or should have known" of the victim's condition; nor did it state that guilt would attach if the actor "knew or a reasonable person under the attendant circumstances would have believed" the victim's condition to be as it was. Compare N.J.S.A. 2C:5-1(a)(1) and (a)(3), supra. To the extent our colleagues in Moon imposed such a construction on the statute, we would respectfully disagree.

Of the four requisite mental states that define all criminal culpability in the Code, only one utilizes the word "believes" to describe an actor's state of mind regarding the attendant circumstances of criminal conduct. "A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist." N.J.S.A. 2C:2-2(b)(1)(emphasis added). We conclude that in order to be convicted of N.J.S.A. 2C:12-1.2, the State must prove that the defendant's state of mind regarding the condition of the victim was "purposeful" or "knowing," as defined by the Code. In the event of any retrial in this case, the jury should be so charged.

Defendant also argues that although the statutory language does not contain such a requirement, the State must demonstrate that a defendant's decision to "leave the scene of the injury" must cause or threaten additional injury to the victim. In Moon, we concluded that the statute did not proscribe a defendant's conduct in leaving the scene if the victim instantaneously died after being shot by the defendant. Moon, supra, 396 N.J. Super. at 116. As defendant points out, we also noted,

The obvious focus of this endangering statute is minimizing the risk of additional harm to an injured victim who is in need of assistance by criminalizing the act of leaving a person helpless, incapacitated or unable after causing bodily injury. That purpose is evinced by the definition of the crime and the "affirmative defense" that is available to a person who protects the victim from further injury and summons assistance. [Id. at 117 (citing N.J.S.A. 2C:12-1.2(c).]

We found further support for this conclusion by noting the availability of other sections of the Code that already criminalized the conduct at issue in the case. Ibid. We agree that if N.J.S.A. 2C:12-1.2 was intended to proscribe an actor's flight from the scene of an assault for reasons unrelated to the condition of the victim, such conduct was already punishable under N.J.S.A. 2C:29-1(a)(making it an offense to "purposely obstruct[] . . . the administration of law or other governmental function . . . by means of flight"), and other provisions of the Code. Moon, supra, 396 N.J. Super. at 117.

A "general purpose[]" of the Code was "[t]o forbid, prevent, and condemn conduct that unjustifiably and inexcusably inflicts or threatens serious harm to individual or public interests[.]" N.J.S.A. 2C:1-2(a)(1). As we see it, the public's interests in criminalizing an actor's flight from the scene of an assault are fully met by other provisions as noted, and therefore the statute's focus must be upon any "threaten[ed] serious harm to [the] individual" caused by one who flees the scene of the injury. Ibid. We are further convinced that the focus of N.J.S.A. 2C:12-1.2 is upon the harm caused to the individual victim because of its location within the Code's Subtitle Two, Part One, defining "offenses involving danger to the person."

N.J.S.A. 2C:12-1(a)(1) already addresses the harm to an individual--bodily injury--when a simple assault occurs, and punishes a defendant as a result. If "significant bodily injury," "serious bodily injury," N.J.S.A. 2C:12-1(b), or death, N.J.S.A. 2C:11-2, results from that same conduct, a defendant faces further punishment. It is only because the "injured victim" is "physically helpless, mentally incapacitated or otherwise unable to care for himself," and thus subject to some additional "threatened serious harm" by being left in that condition, can or should further criminality attach to the defendant's conduct. N.J.S.A. 2C:12-1.2(a).

In sum, we conclude that an essential element of the crime of endangering an injured victim is that a defendant's flight from the "scene of the injury" increased the risk that further harm would come to the victim left in a vulnerable state, or that the victim's condition would further deteriorate, and the jury should be charged accordingly. Since the issue of whether the facts in this case are sufficiently different from those presented in Moon, and therefore, whether defendant can be guilty of both manslaughter and N.J.S.A. 2C:12-1.2, was not raised, we do not address the question.

IV.

In Point II, defendant contends that the prosecutor's comments in her opening and summation were improper and required reversal. Since we reverse defendant's conviction on other grounds, we need not reach the issue; nonetheless, we provide the following comments for guidance in the event of a retrial.

In her opening, the prosecutor told the jury,

The State's theory is that [] Scott was the intended victim. [] Scott comes back to check on [] Mitchell. That should hold a lot of water for you. It did when we decided on a plea agreement for [] Scott.

Of course, the reason for the State's decision to offer Scott the plea bargain it did was irrelevant under the circumstances of this case. The comment suggested to the jury that Scott's version was more worthy of belief, because the State believed him more credible in light of his decision to return to the scene, as opposed to defendant who fled. Any suggestion that the State vouched for Scott's credibility, with the plea agreement as evidence, is impermissible and should be avoided. State v. Bradshaw, ___ N.J. ___, ___ (2008)(slip op. at 25); State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004).

In her summation, the prosecutor repeatedly argued that defendant lied in his statement to the police. More importantly, she repeatedly suggested that defendant was asserting through his statement that the State's witnesses were all "lying" because their versions of the relevant events were different from his. For example, the prosecutor told the jury

And they [defense] want you to believe he didn't know she was shot. He's the loving boyfriend, he was leaning next to her, holding her, hoping she was okay. Not what Keisha Beetle says.*fn11 And Keisha Beetle's not a loving family member who's coming in and apparently lying to you. Because apparently they all have it out for him. I guess that they're all just lying, because he really loved her.

[U]nless you want to believe that truly everybody who came in here is lying and you're welcome to do so, and therefore Patricia, Tamara Mitchell's own mother is also lying for some reason . . . if you really want to believe that, then acquit [defendant].

In State v. T.C., 347 N.J. Super. 219, 237-39 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), we found the prosecutor's cross-examination technique--implying that defendant's version of events could only be accepted if the jury determined the State's witnesses were liars--to be inappropriate. We think such an argument during summation is equally inappropriate.

Because we reverse defendant's conviction, the issues he raises in Points V and VI regarding his sentence are moot. We note that the State has conceded that in the event defendant is again convicted of both reckless manslaughter and possession of the handgun for an unlawful purpose, those convictions must merge for purposes of sentencing. We agree.

Reversed and remanded for a new trial.


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