STATE OF NEW JERSEY v. JOSE L. ORTIZ

NOT FOR PUBLICATION WITHOUT THE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-1552-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE L. ORTIZ,

Defendant-Appellant.

_________________________________

December 16, 2016

Submitted September 13, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-09-0964.

Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the briefs).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Michelle R. Jeneby, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jose Ortiz appeals from a judgment of conviction for third-degree terroristic threats, N.J.S.A. 2C:12-3(b), second-degree burglary, N.J.S.A. 2C:18-2(b)(1), and fourth-degree stalking, N.J.S.A. 2C:12-10(b), entered after a jury trial. We reverse and remand for a new trial.

I.

The evidence presented at trial showed that defendant and M.P. had lived together in Connecticut. In 2010, M.P. relocated to New Jersey with her three children following an incident with defendant at her Connecticut home.

During the evening of March 5, 2012, M.P. was in her apartment in Woodbury when she noticed someone at the front door. She approached the door, which was unlocked, and saw defendant, who was yelling and screaming at her. Defendant pushed his way into the apartment, continued to scream and yell at M.P., and kicked and punched M.P. on her body, face, and head.

Defendant took M.P. into the kitchen and cut off her hair with a pair of scissors. He grabbed M.P. by her neck, held the scissors to her throat, and said, "[y]ou know what I could have done with these scissors? I could have killed you with it." He also made reference to a prior girlfriend, Emily, telling M.P., "[y]ou [are] lucky I didn't leave you like Emily because I left Emily that nobody would recognize her."

M.P. awoke on the floor the next morning and saw defendant sleeping on a bed. She quietly left the apartment and took one of her children to daycare and the other two children to school. After dropping off her children, M.P. took the bus to Gloucester County College, where she took classes at the time. She spoke with a counselor about what happened the previous evening. The counselor noticed bruising on M.P.'s nose and face, drove M.P. to pick up her children at school, and then called the police.

Woodbury Police Department Officer Andrew Digiambattista met M.P. and the counselor at the school. The officer received a report that an unidentified person was attempting to pick up M.P.'s other child at daycare, but the person was not permitted to do so. Another officer went to the daycare location to ensure the unidentified person did not pick up the child.

M.P. was transported to the hospital. An examination revealed she had bruising on her nose, face, and eyes, and scratch marks on her neck. It was also observed that her hair had been cut off in a manner that was described as "chopped."

A subsequent investigation disclosed that defendant's car was located in front of M.P.'s apartment complex on the evening of March 5, 2012, and through the early morning hours of March 6, 2012. The investigation showed that the Woodbury Police Department's automatic license reader system detected and took photographs of a car bearing defendant's Connecticut license plates at the location of M.P.'s apartment complex at those times.

Defendant was charged in an indictment with third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count one); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (count two)1; and fourth-degree stalking, N.J.S.A. 2C:12-10(b). The matter was tried before a jury.

The jury convicted defendant on each of the charges. Defendant was sentenced to an eight-year custodial term on count two, with an eighty-five percent period of parole ineligibility and a three-year period of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a four-year custodial term on count one and an eighteen-month custodial term on count three. The sentences were imposed concurrently. The court issued a permanent restraining order against defendant pursuant to N.J.S.A. 2C:12-10.1, prohibiting defendant from maintaining any proximity to, and having any communication with, M.P. and her children. This appeal followed.

On appeal defendant's counsel makes the following arguments

POINT I

THE COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT. (Partially Raised Below)

POINT II

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE COURT'S ERRONEOUS ADMISSION OF 404(b) EVIDENCE AND ITS INADEQUATE LIMITING INSTRUCTION. (Partially Raised Below)

POINT III

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND DUE PROESS OF LAW DUE TO THE ERRONEOUS ADMISSION OF HEARSAY EVIDENCE. (Not Raised Below)

POINT IV

THE PROSECUTOR COMMITTED MISCONDUCT WHEN SHE INVENTED FACTS THAT WERE NOT IN THE RECORD AND REPEATEDLY CALLED DEFENDANT "EVIL" AND "WICKED." THE COURT'S LIMITING INSTRUCTION COULD NOT CURE THE PREJUDICIAL EFFECT OF THIS MISCONUDCT. (Partially Raised Below)

POINT V

THE COURT'S FAILURE TO EXCUSE THE ENTIRE JURY POOL FOLLOWING THE JURY'S EXPOSURE TO AN EXCUSED JUROR'S COMMENT ASSOCIATING DEFENDANT WITH A MURDERER DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. (Not Raised Below)

POINT VI

THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL.

POINT VII

THE RESTRAINING ORDER SHOULD BE REFORMULATED BECAUSE THE OVERBROAD PROHIBITION ON DEFENDANT "MAINTAINING. . . PHYSICAL PROXIMITY" TO THE VICTIM IS UNAUTHORIZED BY STATUTE, WHICH REQUIRES THAT THE FORBIDDEN PLACES BE SPECIFICALLY STATED.

In defendant's pro se supplemental brief, he argues

POINT I

DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AND SUBSEQUENTLY A FAIR TRIAL DUE TO THE COURT[']S ERRONEOUS FAILURE TO EXCUSE JURORS FOR CAUSE[,] PURSUANT TO [] [RULE] 1:8-3[2.2].

POINT II

THE DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE COURT[']S ERRONEOUS ADMISSION OF UNQUALIFIED EXPERT TESTIMONY, PURSUANT TO [THE NEW JERSEY] RULES OF EVIDENCE.

II.

We first consider defendant's argument the trial judge erred by failing to instruct the jury on the elements of simple assault, N.J.S.A. 2C:12-1(a), as a lesser-included offense2 of second-degree burglary, N.J.S.A. 2C:18-2, under count two. Defendant contends the charge was required because the indictment alleged that defendant "purposely, knowingly or recklessly inflicted bodily injury on [M.P.]" during the commission of the burglary and therefore charged the elements of a simple assault under N.J.S.A. 2C:12-1(a)(1). Defendant asserts the court was required to charge the jury with the lesser-included offense of simple assault because it was alleged as an element of the second-degree burglary charged in count two.

At trial, defendant did not request the simple assault charge. It was requested by the State. In response to the request, the judge opined that it was not appropriate to charge simple assault as a lesser-included offense because defendant's alleged infliction of bodily injury upon M.P. did not constitute an element of second-degree burglary and was relevant only to enhance defendant's potential conviction for burglary from a third-degree to a second-degree offense. N.J.S.A. 2C:18-2(b). Defendant and the State did not challenge the judge's view, and the charge was not given.

A defendant's failure to object to jury instructions is "considered a waiver to object to the instruction[s] on appeal." State v. Maloney, 216 N.J. 91, 104 (2013). In the absence of an objection to a charge or request for a charge, however, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). This is because "an erroneous jury charge 'when the subject matter is fundamental and essential or is substantially material' is almost always considered prejudicial." Maloney, supra, 216 N.J. at 104-05 (quoting State v. Green, 86 N.J. 281, 291 (1981)).

Such errors present "'[a] presumption of reversible error' . . . that can only be excused if the error is determined to be 'harmless beyond a reasonable doubt.'" Id. at 105 (quoting State v. Collier, 90 N.J. 117, 123 (1982)). We therefore consider defendant's challenge to the court's failure to charge simple assault as a lesser-included offense under the plain error standard.3 R. 2:10-2; Maloney, supra, 216 N.J. at 104; see also Jenkins, supra, 178 N.J. at 360 (finding plain error standard applied to defendant's challenge on appeal to a jury charge to which he did not object at trial). We must first determine if the court erred by failing to give the instruction and if it did, whether the failure "was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." Jenkins, supra, 178 N.J. at 360-61 (quoting State v. Brims, 168 N.J. 297, 306 (2001)); State v. Ramsey, 415 N.J. Super. 257, 266 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011).

To determine whether a lesser-included offense charge is appropriate, a court must find the offense "satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d) and . . . that there is a rational basis in the evidence to support a charge on [the] included offense." Maloney, supra, 216 N.J. at 107 (quoting Thomas, supra, 187 N.J. at 131). For the reasons that follow, we are convinced simple assault is a lesser-included offense of the second-degree burglary charged in the indictment and there was a rational basis in the evidence to support a charge on simple assault.

"[W]hether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge." Ibid. (quoting Thomas, supra, 187 N.J. at 129). An offense is a lesser-included offense "where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense." Thomas, supra, 187 N.J. at 129 (quoting State v. Muniz, 228 N.J. Super. 492, 496 (App. Div. 1988), rev'd on other grounds, 118 N.J. 319 (1990)).

To establish defendant's guilt on the second-degree burglary charged in count two, the State was required to prove defendant entered M.P.'s home without a license or privilege to do so, with the purpose to commit an offense therein, and during the commission of the crime "purposely, knowingly, or recklessly inflict[ed] . . . bodily injury on" M.P. N.J.S.A. 2C:18-2(a)(1) and (b)(1). To prove a simple assault, the State must prove a defendant "purposely, knowingly or recklessly cause[ed] bodily injury to another."4 N.J.S.A. 2C:12-12(a)(1). Thus, the infliction of bodily injury elements of the second-degree offense charged in the indictment are identical to the elements required to prove a simple assault under N.J.S.A. 2C:12-1(a)(1). The State acknowledged as much when at trial it requested that simple assault be charged as a lesser-included offense.

The evidence establishing defendant committed second-degree burglary also established every element of the offense of simple assault because the infliction of bodily injury elements of second-degree burglary charged in the indictment are identical to the elements required to prove simple assault. Thomas, supra, 187 N.J. at 129. We are therefore satisfied that, based upon the allegations in the indictment and the evidence presented at trial, simple assault was a lesser-included offense of the second-degree burglary charged in count two.

We discern no support for the State's argument that a different analysis is required under N.J.S.A. 2C:1-8(d)(1) because the facts showing defendant inflicted bodily injury were necessary only to elevate the grading of the burglary from a third-degree to a second-degree offense. "[F]acts [that] will aggravate the crime of which a defendant is accused and enhance the punishment to which he will be subject are said to be an 'element' of the offense." State v. Rodriguez, 234 N.J. Super. 298, 304-05 (App. Div.), certif. denied, 117 N.J. 656 (1989); see also State v. Ramos, 217 N.J. Super. 530, 539-40 (App. Div.) (finding that when the commission of an offense during the commission of a second offense raises the degree of the second offense, the commission of the offense is an element of the second offense), certif. denied, 108 N.J. 677 (1987).

As charged in the indictment here, infliction of bodily injury was an element of second-degree burglary, the "offense charged" in count two of the indictment. N.J.S.A. 2C:1-8(d)(1). As noted, because the elements of simple assault are identical to the infliction of bodily injury elements of the second-degree burglary charged in count two, simple assault is a lesser-included offense of the second-degree burglary charged in the indictment. N.J.S.A. 2C:1-8(d)(1); Maloney, supra, 216 N.J. at 107.

Our determination that simple assault is a lesser-included offense does not end the inquiry. We also consider if there was a rational basis in the evidence to convict defendant of the lesser-included offense while acquitting him of the second-degree burglary charged in the indictment. Thomas, supra, 187 N.J. at 132. A court "shall not charge the jury with respect to [a lesser] included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). The statute requires "not only a rational basis in the evidence for a jury to convict the defendant of the included offense but require[es] also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense." State v. Brent, 137 N.J. 107, 113-14 (1994). "[S]heer speculation does not constitute a rational basis." Thomas, supra, 187 N.J. at 132 (quoting Brent, supra, 137 N.J. at 118).

We are satisfied there was a rational basis supporting a charge on the lesser-included offense of simple assault. M.P.'s testimony she was kicked and punched by defendant, and suffered bruising and scratches as a result, was sufficient to establish defendant committed a simple assault under N.J.S.A. 2C:12-1(a)(1) and provided a rational basis for the lesser-included offense charge.

The evidentiary record also provided a rational basis for an acquittal on the greater charge of second-degree burglary because there was evidence showing defendant's entry into M.P.'s apartment may have been authorized. M.P. provided conflicting statements. At trial she testified defendant was not authorized to enter her apartment on March 5, 2012, and forced his way in through an unlocked door. She acknowledged on cross-examination, however, that she previously testified under oath that defendant "knocked on the door and [she] opened it."

M.P. also testified she attended two parties in Connecticut with defendant and his and M.P.'s children during the weeks prior to March 5, 2012, and that on February 26, 2012, she returned to New Jersey with defendant and the children following one of the parties. A picture taken at a party nine days prior to the March 5, 2012 incident shows M.P. kissing defendant on the cheek. In February 2012, she permitted defendant to enter her apartment to fix holes he had made in the walls. She was not asked to explain the circumstances under which the holes were made, but her testimony demonstrated she had given defendant permission to enter her home during the weeks prior to the crimes alleged in the indictment.

We recognize M.P. could deny or revoke authorization for defendant to enter her apartment at any time. We are satisfied, however, that her testimony provided a rational basis to acquit defendant of second-degree burglary. Portions of M.P.'s testimony support a rational conclusion that defendant's entry into M.P.'s apartment was authorized, thereby negating an essential element of second-degree burglary, entry without a license or privilege to do so. N.J.S.A. 2C:18-2(a)(1). The court therefore erred by failing to give the lesser-included charge because, although it was not requested by defendant, the "facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Maloney, supra, 216 N.J. at 107 (quoting Thomas, supra, 187 N.J. at 132).

We are satisfied the lesser-included charge directly concerned a matter that was "fundamental," "essential," and "substantially material" to the issues at trial. Maloney, supra, 216 N.J. at 104-05 (quoting Green, supra, 86 N.J. at 291). The failure to give the required charge deprived the jury of the opportunity to find defendant guilty of simple assault, for which there was overwhelming evidence, without also finding him guilty of the second-degree burglary, for which there was conflicting evidence from M.P. concerning an essential element of the crime, whether defendant had a license or privilege to enter M.P.'s apartment. "[A] jury reluctant to acquit [a] defendant might compromise on a verdict of guilty on the greater offense." State v. Sloane, 111 N.J. 293, 299 (1988). "Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Ibid. (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973)).

"Appropriate and proper charges to a jury are essential for a fair trial." Maloney, supra, 216 N.J. at 104 (quoting Green, supra, 86 N.J. at 287). The trial court erred here by failing to charge the jury on simple assault as a lesser-included offense of second-degree burglary as charged in the indictment. We are therefore constrained to reverse defendant's conviction because we are convinced the court's failure to charge the lesser-included offense of simple assault "was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." Jenkins, supra, 178 N.J. at 360-61 (quoting Brims, supra, 168 N.J. at 306).

III.

We have also determined there is a separate but equally dipositive basis requiring a reversal of defendant's conviction; the incorrect admission of prior bad acts evidence. Defendant argues the court erred by permitting testimony under N.J.R.E. 404(b) concerning three events that were not the subject of the charges in the indictment. Defendant challenges the admission of M.P.'s testimony concerning a 2010 incident of domestic violence between her and defendant, and describing defendant's threat referencing Emily. Defendant also contends the officer's testimony about his receipt of a report that an unauthorized person attempted to pick up M.P.'s child from daycare was improperly admitted. Defendant also argues the court's limiting instruction regarding the jury's consideration of N.J.R.E. 404(b) evidence was inadequate.

The decision to admit evidence under N.J.R.E. 404(b) is reviewed for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). A court's discretion to admit evidence "is not unbounded. Rather, it is guided by legal principles governing the admissibility of evidence which have been crafted to assure that jurors receive relevant and reliable evidence to permit them to perform their fact-finding function and that all parties receive a fair trial." State v. J.M., 225 N.J. 146, 157 (2016) (quoting State v. Willis, 225 N.J. 85, 96 (2016)). If a defendant did not object to the admission of other-crimes evidence during the trial, the appellate court reviews its admission under the plain error standard and reverses the verdict only "if the error is 'clearly capable of producing an unjust result.'" Rose, supra, 206 N.J. at 157 (quoting R. 2:10-2).

N.J.R.E. 404(b) permits the admission of other crimes or wrongs evidence and provides

Except as otherwise provided by Rule 608(b), 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. Such 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.

[N.J.R.E. 404(b).]

Such evidence must be admitted with caution because it "'has a unique tendency' to prejudice a jury," J.M., supra, 225 N.J. at 158 (quoting Willis, supra, 225 N.J. at 97), and "has the effect of suggesting to a jury that a defendant has a propensity to commit crimes, and therefore, that it is 'more probable that he committed the crime for which he is on trial.'" Ibid. (quoting Willis, supra, 225 N.J. at 97) (internal citations omitted).

Our Supreme Court has established a four-part test for the admission of N.J.R.E. 404(b) evidence

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. Cofield, 127 N.J. 328, 338 (1992).]

The party seeking admission of such evidence must "demonstrate[] the necessity of the other-crime evidence to prove a genuine fact in issue[,] . . . the court [must] carefully balance[] the probative value of the evidence against the possible undue prejudice it may create, [and] the court must instruct the jury on the limited use of the evidence." J.M., supra, 225 N.J. at 158 (quoting Cofield, supra, 127 N.J. at 340-41).

Here, defendant first challenges the court's admission of M.P.'s testimony concerning a 2010 incident which was strikingly similar to the 2014 incident that was the subject of the charges in the indictment. Defense counsel objected and, after conducting a N.J.R.E. 104 hearing, the court permitted M.P. to testify before the jury that in 2010 she was alone in her Connecticut apartment, defendant made an unauthorized entry through a door that had been locked, and defendant threw her on a bed, placed a pillow over her face preventing her from breathing, and then departed.

The prosecutor argued the purpose of the evidence was to establish an absence of mistake, that "[t]his [was not] something out of the ordinary or out of character for him." She also claimed the evidence demonstrated defendant's plan, motive, and opportunity, arguing "[t]his is who he is. This is his character and it should be admitted . . . ."

The judge's analysis of the evidence under Cofield was incomplete and in error. The judge found the evidence was relevant to whether defendant committed the crimes charged in the indictment, but did not identify how the evidence was "relevant to a material issue that [was] genuinely disputed," id. at 160 (quoting State v. Covell, 157 N.J. 554, 564-65 (1999)), or served any of the permissible purposes of evidence admissible under N.J.R.E. 404(b). The judge ultimately chose to charge the jury that the evidence could be used to determine defendant's intent, absence of mistake, and motive, but defendant's state of mind was "not a 'genuinely contested' issue in this case." Id. at 160 (quoting Willis, supra, 225 N.J. at 98-99). The judge also instructed the jury that the evidence could be used as proof of defendant's plan, but it was inadmissible for that purpose because it was insufficient to "establish the existence of a larger continuing plan of which the crime on trial [was] a part[.]"5 Ibid. (quoting State v. Stevens, 115 N.J. 289, 306 (1989)).

Based upon our review of the record, we discern no permissible purpose under N.J.R.E. 404(b) for the admission of M.P.'s testimony concerning the 2010 incident. In addition, the testimony was highly prejudicial to defendant because it described a nearly identical incident to the one which was the subject of the indictment and detailed similar facts of critical importance in defendant's trial: whether defendant was authorized to enter M.P.'s apartment or committed a burglary by entering without her authorization. Without any probative value under N.J.R.E. 404(b), the admission of the evidence could only support the impermissible inference that defendant acted in conformity with his prior conduct by committing the crimes charged in the indictment.

The prejudice to defendant was further exacerbated because M.P.'s testimony about defendant's alleged prior bad acts under N.J.R.E. 404(b) was not limited to defendant's conduct. See State v. Gillispie, 208 N.J. 59, 92 (2011) (finding "other crimes evidence must be appropriately sanitized"). The court instead permitted M.P. to testify she could not stay in Connecticut because in her opinion defendant's conduct was not going to stop, she fled Connecticut immediately following the incident to get out as fast as possible, and her daughter was frightened by the incident.

We are therefore convinced the court erred by permitting M.P. to testify concerning the 2010 incident under N.J.R.E. 404(b). Defendant objected to the admission of the evidence so we consider its admission under the harmless error rule. State v. Macon, 57 N.J. 325, 338 (1971) (finding error is harmless unless there is a reasonable doubt that the error contributed to the verdict). Because the evidence had no probative value and was otherwise highly prejudicial to defendant, a reversal is required because there exists a reasonable doubt the court's error in admitting the evidence contributed to the verdict.6

IV.

Because the matter will be retried, we address defendant's other arguments for the guidance of the trial court. We reject defendant's contention the court erred by permitting M.P. to testify about defendant's threatening statements concerning what he had done to Emily. We disagree with defendant's assertion the testimony constituted evidence of prior bad acts under N.J.R.E. 404(b).

"[E]vidence that is intrinsic to the charged crime is exempt from the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under [N.J.R.E.] 404(b) because it is not evidence of other crimes, wrongs, or acts." Rose, supra, 206 N.J. at 177 (citation and internal quotation marks omitted). One category of intrinsic evidence "applies to evidence that 'directly proves' the charged offense." State v. Brockington, 439 N.J. Super. 311, 327 (App. Div. 2015) (quoting Rose, supra, 206 N.J. at 180). "The operative factor is whether the evidence has probative value as to the charged offense." Ibid.

M.P.'s testimony concerning defendant's reference to what he had done to Emily falls within the category of intrinsic evidence that directly proves the offense charged. M.P.'s testimony was that defendant referred to what he had done to Emily as the means to threaten M.P. The testimony had probative value to the offense of terroristic threats and stalking with which defendant was charged in the indictment.

Defendant also contends the admission of Digiambattista's testimony concerning the unidentified person who reportedly attempted to pick up M.P.'s child at daycare violated N.J.R.E. 404(b). We need not determine if the testimony constituted the admission of other crimes or bad acts evidence under N.J.R.E. 404(b) because the officer's testimony about the report he received should not have been admitted. It constituted inadmissible hearsay. N.J.R.E. 802.7 See Neno v. Clinton, 167 N.J. 573, 581 (2001) (finding statements made by witnesses to an officer were "undoubtedly hearsay").

Based upon the trial record, we also agree with defendant's assertion that Digiambattista's testimony that M.P. reported to him she was assaulted by defendant, and the nurse's testimony concerning M.P.'s reports about defendant's alleged assaults, constituted inadmissible hearsay.8 N.J.R.E. 802. There is nothing in the evidentiary record supporting the admission of the testimony under any of the exceptions to the hearsay rule. At the retrial, the testimony should be excluded unless the State establishes the proper admission of the testimony under an applicable exception to the hearsay rule.

Because we reverse defendant's conviction and sentence and remand for a new trial, we do not address defendant's remaining arguments, including his contention that cumulative trial errors require reversal.

Reversed and remanded for further proceedings consistent with this opinion. The restraining order is vacated. We do not retain jurisdiction.

1 Count two originally charged defendant under N.J.S.A. 2C:18-2(a)(1). Prior to trial, count two was amended to charge defendant under N.J.S.A. 2C:18-2(b)(1).

2 Defendant does not argue that simple assault should have been charged as a related offense. See State v. Thomas, 187 N.J. 119, 129-30 (2006). We therefore limit our discussion to defendant's claim that simple assault should have been charged as a lesser-included offense.

3 We do not consider defendant's argument under the invited error doctrine. "Under that settled principle of law, trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . .'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). We find the principle inapplicable because it does not apply where, as here, there is no evidence the court relied on defendant's acquiescence in deciding not to charge the jury on simple assault. Jenkins, supra, 178 N.J. at 359.

4 A simple assault may also be committed if a person attempts to cause bodily injury to another. N.J.S.A. 2C:12-1(a)(1). The indictment did not charge that defendant attempted to cause injury to M.P., but instead charged only that defendant inflicted bodily injury on M.P.

5 We reject any contention that the M.P.'s testimony concerning the 2010 incident was material to the stalking charge in count three. The indictment alleged defendant engaged in stalking only during a course of conduct that occurred on May 5, 2012, in Woodbury.

6 The judge's general instructions on the permissible use of N.J.R.E. 404(b) evidence did not cure the error in admitting the testimony or eliminate the prejudice to defendant. The court could not have provided the jury with a correct instruction on the use of M.P.'s testimony concerning the 2010 incident because the testimony was not admissible under N.J.R.E. 404(b) in the first instance.

7 Defendant did not object to the testimony, but because we reverse defendant's convictions on other grounds, we need not decide whether admission of the Digiambattista's testimony constituted plain error. During the retrial, however, the officer should not be permitted to testify regarding the report unless it is demonstrated the report is admissible under an exception to the hearsay rule.

8 The officer's testimony violated the hearsay rule because he provided specific details about the crime relayed to him by M.P.

State v. Luna, 193 N.J. 202, 217 (2007). The nurse's testimony impermissibly described M.P.'s statements that were not relevant to the provision of medical treatment. State v. McBride, 213 N.J. Super. 255, 273 (App. Div. 1986).