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State v. McMullen

August 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARCUS B. MCMULLEN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-12-0852.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2009

Before Judges A. A. Rodríguez, Payne and Newman.

Defendant, Marcus McMullen, was found guilty of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4a, after exposing himself to a ten-year-old girl at a water park. He was sentenced to three years in custody, subject to Megan's Law. He has appealed.

On appeal, defendant raises the following issues:

POINT I

THE NUMEROUS ERRORS MADE BY THE TRIAL COURT WHEN IT ALLOWED THE INTRODUCTION OF EVIDENCE OF "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE, WHEN IT FAILED TO GIVE CRITICAL JURY INSTRUCTIONS, AND WHEN IT FAILED TO RESTRICT THE STATE'S USE OF SUCH EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below.)

a. The court erred when it allowed the State to introduce portions of the video tape that had nothing to do with the alleged victim.

b. The court erred when it allowed the State to introduce evidence defendant had a Levitra pill in his possession.

c. The court erred when it failed to give a limiting instruction regarding the Levitra pill at all; and when it failed to give a limiting instruction regarding the video tape when it was played for the jury.

d. The court erred when it allowed the state to use "other crimes, wrongs, or bad acts" evidence to cross examine character witnesses.

POINT TWO

THE COURT ERRED WHEN IT COERCED A VERDICT FROM THE JURY BY TWICE NOT DECLARING A MISTRIAL WHEN THE JURY INDICATED IT WAS DEADLOCKED, AND BY FAILING TO PROVIDE GUIDANCE TO THE JURY THROUGH PROPER INSTRUCTIONS THE SECOND TIME IT FAILED TO DECLARE A MISTRIAL.

POINT THREE

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE ON HIS BEHALF WHEN THE COURT PRECLUDED HIS EXPERT FROM TESTIFYING THE STATE'S USE OF DEFENDANT'S VIDEOTAPE TO SHOW ...


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