STATE OF NEW JERSEY v. STEVEN ALICEA

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1363-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

STEVEN ALICEA, a/k/a STEVEN
J. ALICEA, ALLICA STEVEN,
LIL STEVEN, and LIL SHINE,

Defendant-Appellant.
____________________________

Submitted September 12, 2018 – Decided October 19, 2018

Before Judges Yannotti, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-02-0375.

Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel V. Gautieri, Assistant Deputy Public
Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Adam D. Klein, Deputy Attorney General,
of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Steven Alicea and co-defendant John Gonzalez were charged

with numerous crimes related to two incidents that took place on the same day.

The first incident involved a robbery and murder, and the second involved a

home invasion, robberies, and aggravated sexual assaults. At the time of the

incidents, defendant was nineteen years of age and Gonzalez was sixteen years

old. Defendant and Gonzalez were tried separately. 1

A jury convicted defendant of fifteen crimes, which included first-degree

murder, N.J.S.A. 2C:11-3(a)(1) to (2); first-degree felony murder, N.J.S.A.

2C:11-3(a)(3); three counts of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(4); three counts of first-degree robbery, N.J.S.A. 2C:15-1;

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2(a)(1); first-degree use of a

juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; two counts of

first-degree witness tampering, N.J.S.A. 2C:28-5(a); and various weapons

offenses.

1
Co-defendant Gonzalez has filed a separate appeal, which we have addressed
in a separate opinion. See State v. Gonzalez, No. A-0066-16 (App. Div. Oct.
19, 2018).
A-1363-16T3
2
Defendant was sentenced to an aggregate of life without parole plus sixty-

six years in prison with forty-one years of parole ineligibility. He appeals his

convictions. We affirm.

The two incidents that gave rise to defendant's convictions occurred on

September 30, 2011. There were three victims: L.B. was robbed and murdered;

G.T. was robbed; and B.C. was robbed and sexually assaulted. 2 At trial, G.T.,

B.C., and other witnesses testified. On September 30, 2011, C.B., a friend of

L.B., had made arrangements to meet her at his home. Anticipating her arrival,

C.B. was looking out a window on the second floor of his home. During the

evening, he saw a white van pull up, with L.B. riding in the van. C.B. then saw

three Hispanic men in hooded sweatshirts approach the van. He noted that one

of the men's sweatshirts had a cartoon character's face on the front. One of the

men went to the driver's side of the van and the other two men went to the

passenger side.

L.B. exited the van and made her way towards C.B.'s door. C.B. then went

downstairs to let L.B. into his home. Before he opened the door, he heard L.B.

say: "I don't have anything," and "leave me alone[.]" C.B. then heard gunshots.

2
We use initials to protect the privacy of the victims and witnesses.
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C.B. went back upstairs, looked out the window, and saw L.B. on his front steps.

He heard L.B. tell a woman, whom he knew as "Cookie," "they shot me." Cookie

called 911.

L.B. was taken to the hospital and ultimately died from her injuries, which

included a gunshot wound and head trauma. Before she died, however, a

sergeant who had responded to the report of the shooting spoke with L.B. The

sergeant testified that L.B. told him that three males shot her.

That same night, G.T. was at his home, which was located approximately

two blocks from where L.B. was shot. G.T. was over eighty years old at the

time, and B.C., his caretaker and friend, was living with him.

Just after 11 p.m., G.T. and B.C. heard bangs on their door. G.T. opened

the door and three men entered the home, one of whom was pointing a gun at

G.T., while a second held another gun. The men demanded money from G.T.

The men then told B.C. to take her clothes off and forced her to perform oral sex

on G.T. Thereafter, B.C. was forced to perform oral sex on the three men and

each of the men raped her vaginally and anally. When B.C. tried to resist the

assaults, she was punched and hit with a gun.

While at the home, the men searched for and took various items, including

watches, keys, a phone, coins, and a chain. The men also threatened G.T. and

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B.C. throughout the time that they were at the home. Eventually, the men left

the home. G.T. then called the police.

The police arrived shortly thereafter and began to search the area for the

suspects. Police officers saw several men, one of whom was wearing a red

sweatshirt, which matched G.T.'s description of one of the suspects. When the

police stopped to question the men, they ran away. The officers pursued and

eventually apprehended defendant and Gonzalez. A third suspect escaped and

apparently has not been located.

While pursuing defendant, an officer saw defendant discard a handgun,

which was later recovered. Officers pursuing Gonzalez observed Gonzalez

discard a blue sweatshirt. When police officers later recovered the sweatshirt

they found a handgun wrapped in it. Gonzalez was searched incident to his

arrest, and the police found two watches and a chain belonging to B.C. and G.T.

After being arrested, Gonzalez was taken to G.T.'s home and G.T. identified

Gonzalez as one of the men involved in the robbery and sexual assaults.

Thereafter, the police also recovered a purse found on the front porch of G.T.'s

home. L.B.'s DNA was found on cosmetics inside the purse.

In the meantime, B.C. was taken to the hospital and evaluated by a sexual

assault nurse examiner (SANE nurse). During the examination, B.C. described

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the sequence of events leading up to the sexual assaults and what the suspects

looked like. After her examination, B.C. was taken to the police station where

she identified defendant in a photo array.

Initially, a grand jury returned an indictment charging defendant and

Gonzalez with numerous crimes related to the murder and home invasion.

Defendant filed a motion to sever his trial from the trial of Gonzalez and to sever

the counts related to the murder from the counts related to the home invasion.

The trial court heard oral argument and granted the motion in part and

denied it in part. The court severed the trials of defendant and Gonzalez, but

denied the request to sever the various counts of the indictment. The judge

found facts connecting the murder and the home invasion sufficient to make the

incidents part of an ongoing episode of criminal activity. Accordingly, the judge

found that the jury had the right to hear all the evidence and that defendant would

not be prejudiced by having a comprehensive trial.

Thereafter, the grand jury returned a superseding indictment charging

defendant with fifteen crimes. A trial was conducted in May and June 2016.

At trial, a series of confiscated letters were introduced that implicated

defendant in the murder. One of the letters was confiscated from defendant's

younger brother while the brother was in jail. Another of the letters was

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intercepted when it was sent to Gonzalez in jail. The State presented evidence

that the letters had been sent by defendant. The letters contained admissions

and indicated that defendant would take revenge if Gonzalez gave a statement

against him. After hearing all of the evidence, the jury convicted defendant of

all fifteen crimes.

Defendant was sentenced in September 2016. On the murder conviction,

defendant was sentenced to a term of life in prison without the possibility of

parole. The court also imposed multiple consecutive sentences: for burglary,

eight years in prison, with four years of parole ineligibility; for use of a juvenile

to commit a criminal offense, fifteen years in prison with seven years of parole

ineligibility; for robbery, ten years in prison with eighty-five percent of that time

ineligible for parole as prescribed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2; for aggravated sexual assault, eighteen years in prison

subject to NERA; and for tampering with witnesses, fifteen years in prison with

seven years of parole ineligibility.

The court also imposed concurrent sentences: for unlawful possession of

a weapon, eight years in prison; for two robbery convictions, fifteen and ten year

prison terms, both subject to NERA; and for the second count of tampering with

witnesses, fifteen years in prison, with seven years of parole ineligibility. The

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remaining convictions were merged. Thus, as noted earlier, defendant was

sentenced to an aggregate term of life without parole, plus sixty-six years in

prison with forty-one years of parole ineligibility.

II.

On appeal, defendant makes five arguments, which he articulates as

follows:

POINT I – THE COURT ERRED IN DENYING THE
MOTION FOR A SEVERANCE OF CHARGES
WHEN IT FAILED TO CONDUCT A COFIELD
ANALYSIS AND FAILED TO RECOGNIZE THAT,
WHILE CERTAIN EVIDENCE MAY HAVE TIED
TWO SEPARATE INCIDENTS TOGETHER,
OTHER-CRIMES EVIDENCE WAS
UNNECESSARY TO PROVE ANY FACT IN ISSUE. 3

POINT II – THE COURT FAILED TO PROPERLY
INSTRUCT ON THE SUBJECT OF VICARIOUS
LIABILITY WHEN IT: OMITTED THE
BIELKIEWICZ PORTION OF THE ACCOMPLICE
CHARGE; FAILED TO INSTRUCT IN
ACCORDANCE WITH THE MODEL CHARGE
THAT ALICEA HAD TO HAVE KILLED BY HIS
OWN CONDUCT IN ORDER TO RECEIVE A
SENTENCE OF LIFE WITHOUT POSSIBILITY OF
PAROLE; CREATED THE POSSIBILITY OF A
NON-UNANIMOUS VERDICT ON THE
CONSPIRACY-TO-ROB COUNT; AND FAILED TO

3
Defendant filed a pro se letter brief augmenting arguments his counsel made
concerning the denial of the motion for a severance of the charges. He argued:
"TRIAL COURT DID NOT PROPERLY DENY APPELLANT'S SEVERENCE
MOTION."
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ADEQUATELY ANSWER THE QUESTIONS THE
JURORS ASKED DURING THEIR
DELIBERATIONS.

POINT III – THE JUDGE'S FAILURE TO CHARGE
THE JURY REGARDING ALICEA'S
EXPLANATION FOR HIS FLIGHT WAS PLAIN
ERROR AND DENIED HIM A FAIR TRIAL.

POINT IV – THE COURT COMMITTED PLAIN
ERROR IN FAILING TO PROVIDE A LIMITING
INSTRUCTION REGARDING EVIDENCE THAT
ALICEA HAD DISTRIBUTED NARCOTICS IN THE
PAST AND POSSESSED NARCOTICS AT THE
TIME OF HIS ARREST.

POINT V – ALICEA IS ENTITLED TO A NEW
TRIAL BECAUSE THE COURT'S INSTRUCTION
ON IDENTIFICATION WAS FLAWED AS IT WAS
NOT TAILORED TO THE CRITICAL FACT THAT
THE EYEWITNESSES' PRIOR IDENTIFICATION
HAD CONFUSED ALICEA AND HIS CO-
DEFENDANT, AND OMITTED ANY REFERENCE
TO THE OUT-OF-COURT IDENTIFICATION BY
ONE OF THE WITNESSES AT A SHOW-UP
PROCEEDING.

Having reviewed these arguments in light of the evidence at trial, we find

no error warranting a reversal. Defendant's five arguments can be broken down

into two general categories. First, he makes arguments concerning severance.

Second, he makes a number of arguments concerning the jury instructions. We

will conduct our analysis accordingly.

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1. Severance

a. The Motion to Sever the Counts

Defendant argues that the superseding fifteen-count indictment against

him involved two separate criminal incidents and that the trial court committed

reversible error in not severing the counts related to the murder and robbery of

L.B. from the counts related to the home invasion, robberies, and sexual assaults

involving G.T. and B.C. We disagree.

Two or more offenses can be charged in the same indictment if the

offenses "are of the same or similar character or are based on the same act or

transaction or on [two] or more acts or transactions connected together or

constituting parts of a common scheme or plan." R. 3:7-6. Trial courts are

vested with discretion to sever charges if "it appears that a defendant or the State

[will be] prejudiced by a permissible or mandatory joinder of offenses[.]" R.

3:15-2(b). In such circumstances, the trial court may order separate trials on

certain counts. Ibid. We review such trial court rulings under an abuse of

discretion standard. State v. Sterling, 215 N.J. 65, 73 (2013).

Severance should be granted if there is a danger that the jury could

improperly use the evidence cumulatively. Our Supreme Court has explained

that

A-1363-16T3
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[t]he relief afforded by Rule 3:15-2(b) addresses the
inherent "danger[,] when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would
be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all."

[Ibid. (alteration in original) (quoting State v. Pitts, 116
N.J. 580, 601 (1989)).]

"The test for assessing prejudice is 'whether, assuming the charges were tried

separately, evidence of the offenses sought to be severed would be admissible

under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Ibid. (quoting

State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (alteration in original)).

Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts" is

generally prohibited. If, however, such evidence is offered to prove "motive,

opportunity, intent, preparation, plan, knowledge, identity or absence of mistake

or accident," it is admissible if "relevant to a material issue in dispute." Ibid.

To determine whether other crimes evidence is admissible under N.J.R.E.

404(b), courts use a four-part test:

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;

A-1363-16T3
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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).]

Here, defendant argues that the trial judge erred in denying his severance

motion because the court failed to employ the four-part test under Cofield. We

reject this argument for two reasons. First, while the trial judge did not reference

Cofield in its analysis, the court made findings under N.J.R.E. 404(b) as it

related to severance and, therefore, effectively employed a Cofield analysis.

Second, we have conducted a de novo review using the Cofield test, and

conclude that the denial of the severance of the counts was sound. See State v.

Darby, 174 N.J. 509, 518 (2002) (recognizing that if a trial court fails to conduct

a Cofield analysis, an appellate court can evaluate those factors).

In denying defendant's severance motion, the trial judge applied the

governing standard and went through the requirements for admission under

N.J.R.E. 404(b). First, the judge found that the other crimes evidence was

relevant to prove identification. The judge also determined that evidence related

to the purse tied together the murder and the home invasion to create an ongoing

episode. The other crimes evidence, therefore, was relevant to the jury's

A-1363-16T3
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understanding of how the episode unfolded. Indeed, the judge noted the

difficulty in using the purse evidence in the homicide trial without discussing

the home invasion. In that regard, the murder victim's purse was found at the

scene of the home invasion. B.C.'s testimony regarding the purse was relevant

to establish that whoever killed L.B. also was involved in the home invasion.

Defendant argues that the crimes are not similar in kind and, therefore, the

second prong of Cofield was not satisfied. That argument is not dispositive.

While G.T and B.C., the victims of the home invasion, were not murdered, the

episodes were linked in terms of time, motive, and opportunity. The trial judge

found that the murder and the home invasion were reasonably close in time and

part of one ongoing episode. In that regard, the judge noted that the incidents

occurred on the same day and within a short time frame. Thus, the second prong

was satisfied. Further, our Supreme Court has made clear that the requirements

under the second prong of the Cofield analysis are not found in the language of

N.J.R.E. 404(b) and, therefore, should only be applied in circumstances similar

to those in Cofield. State v. Kemp, 195 N.J. 136, 148 (2008); see also Cofield,

127 N.J. at 330 (considering similarity and proximity of a subsequent illegal

drug incident to the drug crime charged in determining admissibility of the other

crimes evidence).

A-1363-16T3
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Third, there was clear and convincing evidence of the other crimes. In

that regard, the trial judge noted evidence of L.B.'s purse and the handguns, as

well as testimony from B.C. and G.T. regarding identification.

Finally, the judge found that the probative value of admitting the other

crimes evidence for the jury to hear the totality of the circumstances and

understand how the episode unfolded was not outweighed by its apparent

prejudice. The judge also concluded that while joinder of the counts may be

prejudicial to defendant, the other crimes evidence would be admissible un der

N.J.R.E. 404(b) at both trials if the crimes were tried separately. Particularly,

the judge noted that the purse was "an incredibly important element" connecting

the incidents. The judge also accepted the State's contention that the other

crimes evidence was highly probative in establishing identity.

Given all of the trial judge's findings, we discern no abuse of discretion in

the decision to deny severance. Moreover, having conducted a de novo review

of the evidence, we find that the Cofield test was satisfied.

b. Limiting Instruction

For the first time on appeal, defendant contends that the prejudice from

the joint trial was exacerbated by the trial judge's failure to instruct the jury on

A-1363-16T3
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the separate nature of each crime. Because the defense did not request such a

limiting instruction at trial, we review this issue for plain error. R. 2:10-2.

Here, the trial court instructed the jury to consider each count separately

and to consider only the evidence material to each particular count. The court

also instructed the jury that the verdict on each count may be guilty or not guilty.

Considering the charge in its entirety, the court made it clear that each count of

the indictment was to be considered independently. See State v. Torres, 183 N.J. 554, 564 (2005) (explaining that jury charges subject to appellate review

must be considered "as a whole" to determine whether there was any error).

Consequently, we discern no error and certainly no plain error in the lack of a

limiting instruction.

2. The Jury Instructions

Defendant's remaining arguments challenge various portions of the jury

instructions. Initially, we note that with one exception defendant did not object

to the jury charge at trial and, therefore, we review the instructions not objected

to for plain error. R. 2:10-2. Under that standard, defendant must demonstrate

"legal impropriety in the charge prejudicially affecting [his] substantial rights "

and that "the error possessed a clear capacity to bring about an unjust result."

State v. Young, 448 N.J. Super. 206, 224 (App. Div. 2017). Moreover, when

A-1363-16T3
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there was no objection to the charge, we "presum[e] that the charge was not error

and was unlikely to prejudice the defendant's case[.]" Ibid. (alteration in

original) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).

"An essential ingredient of a fair trial is that a jury receive adequate and

understandable instructions." State v. McKinney, 223 N.J. 475, 495 (2015)

(quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Accordingly, the trial court

must give "a comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts that the jury may

find." Ibid. (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

Appellate courts review the jury charge "as a whole" to determine whether

there was any error. Torres, 183 N.J. at 564; see also State v. Marshall, 123 N.J.
1, 145 (1991) ("[T]he prejudicial effect of an omitted instruction must be

evaluated 'in light of the totality of the circumstances–including all the

instructions to the jury, [and] the arguments of counsel.'" (quoting Ky. v.

Whorton, 441 U.S. 786, 789 (1979) (alteration in original))). "There is no

reversible error 'where the charge, considered as a whole, adequately conveys

the law and is unlikely to confuse or mislead the jury, even though part of the

charge, standing alone, might be incorrect." Mogull v. CB Commercial Real

A-1363-16T3
16
Estate Grp., Inc., 162 N.J. 449, 464 (2000) (quoting Fischer v. Canario, 143 N.J.
235, 254 (1996)).

Defendant challenges seven portions of the jury charge: (1) omission of

an instruction for accomplice liability for the lesser-included crime of theft; (2)

omission of an "own conduct" charge relating to the murder; (3) failure to

identify the victim in the conspiracy to commit robbery charge; (4) the trial

judge's response to the jury's question regarding "legal accountability"; (5) the

jury charge on flight; (6) failure to provide a limiting instruction for evidence

that defendant had distributed narcotics and possessed narcotics at the time of

his arrest; and (7) failure to tailor the identification charge to the facts of the

case. We analyze each of challenged portions of the jury charge in turn.

a. Accomplice Liability

Defendant argues that the trial judge erred in failing to charge the jury on

accomplice liability for lesser-included offenses, as required under State v.

Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993). "When a defendant

might be convicted as an accomplice, the trial court must give clear,

understandable jury instructions regarding accomplice liability." State v.

Walton, 368 N.J. Super. 298, 306 (App. Div. 2004). Thus, a "jury must be

instructed that defendant 'shared in the intent which is the crime's basic element,

A-1363-16T3
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and at least indirectly participated in the commission of the criminal act.'" State

v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, 267 N.J. Super. at 528). Indeed, an "accomplice is only guilty of the same crime

committed by the principal if he shares the same criminal state of mind as the

principal." State v. Whitaker, 200 N.J. 444, 458 (2009).

"[A] principal and accomplice, although perhaps liable for the same guilty

act, may have acted with different or lesser mental states, thus giving rise to

different levels of criminal liability." State v. Latney, 415 N.J. Super. 169, 174

(App. Div. 2010) (quoting State v. Ingram, 196 N.J. 23, 41 (2008)). Thus, "when

an alleged accomplice is charged with a different degree offense than the

principal or lesser included offenses are submitted to the jury," the court must

"carefully impart to the jury the distinctions between the specific intent required

for the grades of the offense." Bielkiewicz, 267 N.J. Super. at 528 (quoting

State v. Weeks, 107 N.J. 396, 410 (1987)).

Here, the trial judge instructed the jury on the lesser-included offenses of

manslaughter and theft. The judge also instructed on accomplice liability for

the crimes in the indictment. The trial judge did not, however, instruct the jury

on accomplice liability for the lesser-included offenses. While the jury should

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have been instructed on accomplice liability for theft and manslaughter, the

absence of that charge is not plain error.

Defendant's argument that, if given the Bielkiewicz charge, the jury may

have found him guilty as an accomplice to one of the lesser-included offenses is

unpersuasive. In that regard, the jury found defendant guilty of murder and

robbery as a principal. The jury did not find defendant guilty of either of the

lesser-included offenses. Thus, it is highly unlikely that the jury would have

found defendant guilty as an accomplice to either of the lesser-included

offenses. In short, the circumstances and evidence in this case do not constitute

plain error. See Ingram, 196 N.J. at 41.

b. Own Conduct

Defendant argues that the trial judge erred in failing to instruct the jury on

"own conduct" relating to the murder charge. He contends that such an

instruction was necessary to distinguish between murder by his own conduct and

murder as an accomplice, and that without that charge, the jury did not know the

difference between the two types of liability. That distinction, defendant argues,

determined whether he was subject to a term of life imprisonment without

possibility of parole, or a term between thirty years and life imprisonment with

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at least thirty years of parole ineligibility. We discern no plain error for three

reasons.

First, the jury charge for murder and accomplice liability tracked the

Model Jury Charges.

Second, the verdict sheet made clear that defendant could be found guilty

of murder not by his own conduct, but as an accomplice. See State v. Galicia,

210 N.J. 364, 386-87 (2012) (A jury charge is "a road map to guide the jury,"

and "[a] verdict sheet is an essential component of that road map."). In that

regard, the verdict sheet read as follows:

COUNT 5 of the indictment charges that on or about
the 30th day of September, 2011, . . . [defendant] did
purposely or knowingly cause the death or serious
bodily injury resulting in the death of [L.B.] contrary to
the provisions of [ N.J.S.A. 2C:11-3(a)(1) to (2)] . . . .

a. On the charge of murder of [L.B.] our verdict is:

NOT GUILTY __ GUILTY __

....

b. Did the defendant commit murder by his own
conduct while he was engaged in the commission of, or
an attempt to commit, or flight after committing or
attempting to commit robbery?

NO __ YES __

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To the extent that defendant argues the jury was not able to distinguish

between murder by his own conduct and murder as an accomplice, the verdict

sheet demonstrates otherwise. By separating the jury's consideration into two

parts –– questions (a) and (b) –– the verdict sheet allowed the jury to find

defendant guilty of murder, but then indicate that it was not by his own conduct.

Third, the jury found that defendant committed the murder by his own

conduct in the commission of a robbery. Under N.J.S.A. 2C:11-3(b)(4)(g),

Any person convicted . . . [of first-degree murder] by
his own conduct . . . shall be sentenced by the court to
life imprisonment without eligibility for parole . . . if a
jury finds beyond a reasonable doubt that any of the
following aggravating factors exist: . . . (g) The murder
was committed while the defendant was engaged in the
commission of, or an attempt to commit, or flight after
committing or attempting to commit murder, robbery,
sexual assault, arson, burglary, kidnapping, carjacking
or the crime of contempt . . . .

The jury clearly marked "yes" on the verdict sheet in response to the question

regarding defendant's own conduct. The jury also found defendant guilty of

robbery of L.B. Thus, defendant's argument is rebutted by the jury's actual

findings.

c. Conspiracy to Commit Robbery

Defendant next argues that the trial judge erred in failing to identify the

robbery victim relating to the charge of conspiracy to commit robbery. In that

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regard, defendant contends that the error created the possibility of a non-

unanimous verdict because there were three possible victims: (1) L.B.; (2) B.C.;

and (3) G.T. Accordingly, defendant argues there was a possibility that some of

the jurors may have been convinced that he was in a conspiracy to commit

robbery against L.B., while other jurors may have been convinced that he was

in a conspiracy to commit robbery against C.B. or G.T. Again, because

defendant did not make this objection at trial, our review is for plain error. R.

2:10-2.

A jury must reach a unanimous verdict in a criminal case. N.J. Const. art.

I, ¶ 9; R. 1:8-9. "The notion of unanimity requires 'jurors to be in substantial

agreement as to just what a defendant did' before determining his or her guilt or

innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v.

Gipson, 553 F.2d 453, 457 (5th Cir. 1997)).

Ordinarily, a general instruction on the requirement of
unanimity suffices to instruct the jury that it must be
unanimous on whatever specifications it finds to be the
predicate of a guilty verdict. There may be
circumstances in which it appears that a genuine
possibility of jury confusion exists or that a conviction
may occur as a result of different jurors concluding that
a defendant committed conceptually distinct acts.

[State v. Parker, 124 N.J. 628, 641 (1991).]

A general instruction may not be sufficient where:

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(1) a single crime could be proven by different theories
supported by different evidence, and there is a
reasonable likelihood that all jurors will not
unanimously agree that the defendant's guilt was
proven by the same theory; (2) the underlying facts are
very complex; (3) the allegations of one count are either
contradictory or marginally related to each other; (4)
the indictment and proof at trial varies; or (5) there is
strong evidence of jury confusion.

[State v. Cagno, 211 N.J. 488, 517 (2012) (citing
Frisby, 174 N.J. at 597).]

Courts apply a two-prong test to determine whether a specific unanimity

instruction is required. Ibid. (citing Parker, 124 N.J. at 639). First, the court

asks "whether the allegations in the . . . count were contradictory or only

marginally related to each other[.]" Parker, 124 N.J. at 639. Second, the court

inquires "whether there was any tangible indication of jury confusion." Ibid.

Here, we discern no plain error. Defendant was found guilty of three

counts of robbery of the three victims. In reaching those verdicts, the jury did

not exhibit any signs of confusion. Instead, the jury unanimously found

defendant guilty of robbery of L.B., B.C., and G.T. Accordingly, it is unlikely

that the jury had any confusion that defendant was guilty of conspiracy to

commit robbery. Indeed, there was no tangible indication of jury confusion with

regard to the conspiracy to commit robbery instruction.

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We also note that defendant's sentence would not be affected if the

conspiracy conviction was vacated. Defendant's conviction for conspiracy to

commit robbery merged with his conviction for robbery of L.B. Thus, any errors

stemming from the instruction on the conspiracy to commit robbery charge was

not "clearly capable of producing an unjust result." R. 2:10-2.

d. The Trial Judge's Response to the Jury's Question

Defendant argues that the trial judge's response to a jury's question during

deliberations concerning defendant's "legal accountability" was inadequate. In

that regard, the jury asked the trial court to "provide a better definition for legal

accountability, specifically under conspiracy, vicarious liability. . . . Is legally

being accountable the same thing as committing the crime?" Defendant

contends that the court erred by failing to re-instruct the jury on accomplice

liability and conspiracy, and that the court's response was "uninformative

because [the] jurors were asking whether [defendant] was culpable as a

principal, a conspirator or an accomplice."

In responding to the jury's question, the court explained:

The first question for you to consider is the culpability
of this defendant. And the way these charges are
framed, I know sometimes it becomes confusing, but
that's the first issue, whether there's a determination as
to whether or not this defendant, in fact, committed the
acts. If it's determined that this defendant did not

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commit the acts, the acts were committed but they were
committed by, and the State having proven they were
committed by a conspirator or a co-defendant, then it
draws to the second question which, and I'm reading
from the charge that I provided to you.

Our law provides that a person is guilty of an offense if
it is committed by his own conduct or by the conduct of
another person for which he is legally accountable, or
both. A person is legally accountable for the conduct
of another person when he is engaged in a conspiracy
with such other person or the conduct is within the
scope of that conspiracy.

Read in context, we discern no plain error in the court's response. In that

regard, the trial court molded the instruction to the facts of the case and did not

simply reread the accomplice liability and conspiracy charges, which the jurors

had with them during deliberations. The court also explained the different types

of culpability, including by defendant's own conduct and as an accomplice. That

clarification, combined with the jury's access to the instructions for conspiracy

and accomplice liability during deliberations, was sufficient.

e. The Flight Charge

Defendant argues that in giving a flight charge the trial judge failed to

include defendant's explanation for his flight. He contends that error deprived

him of a fair jury trial and due process. Defendant did object to the flight charge.

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"Flight from the scene of a crime, depending on the circumstances, may

be evidential of consciousness of guilt, provided the flight pertains to the crime

charged." State v. Randolph, 228 N.J. 566, 594 (2017) (citing State v. Mann,

132 N.J. 410, 418-19 (1993)). A jury instruction on flight requires the jury to

first find that there was a departure and then to find that the motive for the

departure was an attempt to avoid arrest or prosecution. Mann, 132 N.J. at 421

(citing State v. Wilson, 57 N.J. 39, 49 (1970)). Accordingly, a jury must be able

to draw reasonable inferences from the evidence that defendant's motive was to

avoid apprehension on the charged offense. Randolph, 228 N.J. at 594-95.

Here, the charge on flight largely tracked the Model Jury Charges.

Contrary to defendant's contention, the trial court explained that "[f]light may

only be considered as evidence of consciousness of guilt if you should determine

that the defendant's purpose in leaving was to evade accusation or arrest fo r the

offenses charged in the indictment."

Defendant, however, contends that evidence that he possessed

twenty-three bags of crack cocaine at the time of his arrest warranted a jury

charge explaining defendant's flight. The evidence on which defendant relies

for this reason for flight did not warrant an instruction from the court. There

was limited testimony concerning defendant's possession of drugs when he was

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arrested. Moreover, in his closing statement to the jury, defense counsel

included an explanation for defendant's flight. In short, the record does not

support a factual basis for an alternative explanation regarding defendant's flight

by the court.

f. Limiting Instruction for Evidence of Narcotics Possession

Defendant also argues that the trial judge erred by not providing the jury

with a limiting instruction on how to consider the evidence of his possession of

narcotics. Defense counsel –– not the State –– elicited testimony regarding

defendant's narcotics possession. Thus, any prejudice that defendant may have

suffered by the introduction of his narcotics possession was invited error. See

State v. Jenkins, 178 N.J. 347, 359 (2004) (explaining that the doctrine of invited

error is "designed to prevent [a party] from manipulating the system"); see also

State v. Morton, 155 N.J. 383, 443 (1998) ("[D]efendant should not be allowed

to convert unsuccessful trial strategy into grounds for reversal of a criminal

conviction."). Accordingly, we find no error, and certainly no plain error,

because the trial judge did not provide a limiting instruction relating to the

evidence of defendant's narcotics possession.

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g. Identification

Finally, defendant argues that he is entitled to a new trial because the trial

judge failed to appropriately instruct the jury on identification. In particular, he

contends that the trial judge did not properly tailor the instruction to the facts of

the case.

In State v. Henderson, 208 N.J. 208 (2011), our Supreme Court identified

a number of factors to be considered in assessing the reliability of eyewitness

identifications. The Court also directed that new Model Jury Charges on

eyewitness identifications were to be developed, taking into account all of the

"variables" addressed in its decision. Id. at 298-99. As a result of the Henderson

Court's decision, the Model Jury Charge on out-of-court identification now

includes various factors a jury should consider in deciding what weight, if any,

it should give to eyewitness identification testimony. There are five factors that

include: (1) opportunity to view and the degree of attention; (2) prior

description of the perpetrator; (3) confidence and accuracy; (4) time elapsed;

and (5) cross-racial effects. The Model Jury Charge instructs that the court

should select and choose the appropriate factors based upon the identification

evidence elicited at trial.

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Further, the Model Jury Charge instructs that on the first factor –– the

witness's opportunity to view and degree of attention –– the court should choose

from seven sub-factors that can affect a witness's view and degree of attention.

Those sub-factors include: (a) stress; (b) duration; (c) focus; (d) distance; (e)

lighting; (f) intoxication; and (g) disguises or changed appearance.

Defendant contends that the trial judge failed to acknowledge that B.C.

and G.T. made prior inconsistent statements regarding defendant's identity. This

argument is unpersuasive, because the trial judge did instruct the jury on prior

inconsistent statements:

In regard to the testimony of [G.T.] and [B.C.], on
cross-examination inconsistencies were shown between
the prior statements and those given on the stand. The
witnesses gave reasons, therefore among the reasons
that I recall were things recently remembered and not
therefore formerly disclosed, the failure of the proper
statement to be recorded accurately, and later
correcting a previous statement. The extent to which
such inconsistencies or omissions reflect the truth is for
you to determine. Consider their materiality and the
relationship to [h]is or her entire testimony and all the
evidence in the case, when, where, and the
circumstances under which they were said or omitted,
and whether the reasons he or she gave you, therefore,
appear to you to be believable and logical.

In short, consider all that I have told you before about
prior inconsisten[t] statements or omissions.

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Defendant also argues that the trial judge erred by not charging the jury

on show-up procedures. The testimony at trial established that G.T identified

Gonzalez, not defendant, during a show-up. Thus, that identification was not

prejudicial to defendant.

Critically, defendant did not request a change to that portion of the charge,

and did not object to the omission of that portion at the time the charge was

given. The remainder of the jury instruction on identification tracked the Model

Jury Charges and listed and explained all of the relevant factors for identification

evidence. Accordingly, we discern no plain error in the jury instruction on

identification.

Affirmed.

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