STATE OF NEW JERSEY v. L. A. W.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4297-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

L. A. W.,1

Defendant-Appellant.
_______________________

Submitted December 8, 2020 – Decided January 14, 2021

Before Judges Yannotti, Haas and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 16-01-0101.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Paula Jordao, Assistant Prosecutor, on
the brief).

1
We use initials to identify defendant and others to protect the identities of the
victims of defendant's offenses. See R. 1:38-3(c)(9), (12).
PER CURIAM

Defendant was tried before a jury and found guilty of second-degree

aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), and other offenses. She

was sentenced to an aggregate eight-year term of incarceration, with an eighty-

five percent period of parole ineligibility, pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of

conviction dated April 6, 2018. We affirm.

On February 18, 2016, a Morris County grand jury returned an indictment

charging defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and

2C:11-3(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1) (count two); third-degree aggravated assault with a deadly weapon,

N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4) (count four); two counts of second-degree burglary, N.J.S.A.

2C:18-2(a)(1) (counts five and six); second-degree possession of a weapon

(handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); second-

degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count

eight); two counts of third-degree possession of a weapon (knife, stun gun) for

an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts nine and eleven); fourth-

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degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) (count

ten); fourth-degree unlawful possession of a prohibited device (stun gun),

N.J.S.A. 2C:39-3(h) (count twelve); fourth-degree unlawful possession of a

prohibited device (hollow point bullets), contrary to N.J.S.A. 2C:39-3(f)(1)

(count thirteen); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count

fourteen); two counts of second-degree endangering the welfare of a child,

N.J.S.A. 24-4(a)(2) (counts fifteen and sixteen); third-degree certain persons not

to have weapons, N.J.S.A. 2C:39-7(b)(3) (count seventeen); and three counts of

fourth-degree contempt, N.J.S.A. 2C:29-9(b) (counts eighteen, nineteen, and

twenty).

Thereafter, Judge Stephen J. Taylor granted the State's motions to admit

defendant's statements to law enforcement, certain N.J.R.E. 404(b) evidence,

and evidence that defendant possessed pills which were found at the crime scene.

Counts seventeen through twenty were severed for trial. Judge Salem Vincent

Ahto presided at the trial of the other charges.

We briefly summarize the evidence presented. Defendant and R.L. had

been in a romantic relationship since 1992. They were never legally married but

lived together as husband and wife with their three biological children, Jo.L.

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(born in May 1994), Je.L. (born in February 1999), and Ji.L. (born in April

2000).

In 2012, defendant's and R.L.'s romantic relationship came to an end, but

they continued to live together to raise their children and maintained separate

bedrooms. It appears that by April 2012, defendant and R.L. argued regularly.

Their arguments continued to escalate, and R.L. testified that he and the children

felt unsafe.

That month, defendant discovered a personal lubricant in R.L.'s jeans. She

yelled at him and stated, "You are a dead man walking." In addition, during an

argument, defendant told R.L., "I want to kill you and your f---ing whore." R.L.

testified he was afraid and traumatized, to the point that he locked his bedroom

door at night and was "always looking out" for defendant.

On May 19, 2012, R.L. woke up and went to his home office, where

defendant was on the computer. They began to argue. According to R.L.,

defendant slapped him in the face, and then threw the computer, monitor, and

copy machine onto the floor.

Defendant then walked toward the garage and told R.L. she was going to

get a hammer and kill him. He left the home and called the police. Sergeant

George Quentz of the Montville Township Police Department (MTPD) arrived

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and arrested defendant. Later that day, a judge entered a restraining order

barring defendant from the home.

In June 2013, defendant and R.L. entered a property settlement agreement,

which provided in part that R.L. would be the sole owner of the parties' residence

and he would purchase defendant's ownership interest. Moreover, in September

2014, defendant and R.L. agreed he would have custody of the children.

Between 2012 and 2015, defendant had visitation with the children.

Je.L. testified that he did not have a good relationship with defendant. In

February 2015, defendant was making harassing phone calls and text messages

to him, so he blocked her on his phone. On February 14, 2015, defendant

appeared at the home for an unannounced visit. She made comments that upset

Je.L. Thereafter, Je.L. did not have any contact with defendant.

By early March 2015, Jo.L. was no longer speaking with defendant. That

month, R.L. and defendant were at a hockey game for Ji.L. Defendant told him

she was a medium who "could see the past and talk to people that were dead ."

According to R.L., defendant said Je.L. had the same abilities and if R.L. did

not allow her to help Je.L., she would kill herself. Ji.L. stopped communicating

with defendant.

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In March and April 2015, defendant sent emails to R.L. He testified that

the emails were threatening and "getting nasty." In an email dated March 14,

2015, defendant told R.L. to "get that f-----g whore out of the house with our

boys[.]" On March 19, 2015, defendant wrote that R.L.'s "silence indicates. . .

you are unwilling to work this out." She stated that his "arrogance" would be

his "downfall." She said she would not "stop" until she had her boys and "what's

fair and just." R.L. also testified that in April and May 2015, defendant left

voicemail messages on his office phone, in which defendant stated she wanted

to speak to the children.

On May 17, 2015, between 7:00 and 8:30 p.m., R.L. returned home from

a hockey game with Je.L. and Ji.L. Jo.L. was at home, sitting at the kitchen

table. R.L. was in his office when he heard the garage door open. Defendant

entered the house and walked into the office. She was holding a bag. R.L. told

defendant she was not allowed in the home and asked her to go to the garage

with him, so that they could speak. She said she would not leave without the

children.

Defendant and R.L. walked out to the garage. He noticed defendant had

a gun in one hand and the bag in other. He turned around and returned to the

office to call the police. While there, R.L. heard Jo.L. screaming, "Mom, you're

A-4297-17T4
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not supposed to be here. . . . What are you doing with the gun, Mom [?] Put it

down, stop waving it around." R.L. started to go into the garage, but he heard

defendant and Jo.L. continuing to scream at each other and went into the kitchen.

Jo.L. was studying at the kitchen table, when he noticed defendant

standing in the kitchen holding a gun. He testified that defendant asked him,

"Where's [your] dad's girlfriend? Where's the whore?" He said defendant held

the gun, pointed it in his direction, and waved the gun back and forth as she

spoke to him. Jo.L. stated that defendant was highly agitated, and he was scared

and nervous.

When R.L. entered the kitchen, he and defendant began to yell at each

other. Jo.L. testified that defendant and R.L. then began wrestling in the dining

room, and R.L. screamed at him to grab defendant's gun. Jo.L. said he froze.

He feared he might get shot, but he eventually called 9-1-1.

Meanwhile, Je.L. was upstairs, in his room. He testified that he heard

Jo.L. shouting. He walked out of his bedroom and saw defendant at the bottom

of the stairs. According to Je.L., defendant said "hi" and then walked into the

kitchen. He ran down the stairs and entered the kitchen, where he saw

defendant's bag on the kitchen counter. When R.L. returned from his office to

the kitchen, he observed Jo.L. sitting at the kitchen table, yelling at defendant .

A-4297-17T4
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He then heard defendant state, "I'm going to shoot the whore. Where is the

whore?" When Jo.L. responded that no one else was in the house, defendant

stated, "Well, I'm going to shoot [R.L.]."

R.L. testified that defendant pointed the gun toward him and pulled the

trigger but "nothing happen[ed]." He said defendant pointed the gun toward the

ground and shook it, hoping to release the bullet that failed to discharge . She

then pointed the gun toward him a second time. R.L. lunged at defendant,

grabbed her hand with the gun, and held it against the freezer. R.L. dragged

defendant to the table in the dining room.

When Jo.L. and Je.L. walked into the room, R.L. asked them to call the

police and help him with the gun. R.L. testified that Je.L. came over to loosen

defendant's grip on the trigger. Je.L. punched defendant in the face with a closed

fist and took the gun from her. Jo.L. picked up the gun from the dining room

table, placed it on the counter and called 9-1-1.

Defendant and R.L. fell to the floor. Defendant was face-down, and R.L.

sat on top of her. He testified that defendant screamed he would "be dead if the

gun had gone off." Je.L. saw a stun gun on the floor, which he placed on the

table.

A-4297-17T4
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Ji.L. was upstairs at the time, listening to music in his room. He testified

that he heard defendant's and R.L.'s voices. He also heard Jo.L. "shouting 'Mom'

over and over again." He walked out of his bedroom, but when he heard a male

voice say "gun," he returned to his room, closed the door, and moved a shelf and

dresser in front of the door. He said he did this "[t]o keep [himself] safe from

any potential danger from the gun."

Ji.L said he was concerned someone would get hurt, so he paced in his

room and thought about what was happening downstairs. He heard R.L. instruct

Jo.L. to call 9-1-1. He was scared and remained in his room for about ten

minutes, until Jo.L. knocked on his door. When Ji.L. went downstairs, he saw

defendant on the ground in the dining room. The police were present.

Sergeant Quentz was the first police officer to arrive in response to the 9-

1-1 call. He observed R.L in the living room. R.L. was on top of defendant,

holding her down, and Jo.L. was standing next to them. Quentz also observed

clothes, pills and other items strewn on the floor, as well as an unsecured gun

on the ground. He placed defendant in handcuffs.

Thereafter, two other police officers arrived. Quentz asked one of the

officers to unload the gun. The officer released the gun's magazine and noticed

it was loaded. The officer said there was a bullet in the chamber of the gun, but

A-4297-17T4
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he could not remove it. Quentz helped him remove the bullet. They noticed the

magazine contained six hollow-point bullets.

One of the officers searched defendant. The officer found bullets and pills

in her pocket. Defendant was holding pills in her clenched hand. The officers

also found a knife and stun gun at the scene. Defendant's bag contained various

items, including a driver's license, paperwork, a Bible, a stuffed doll, a camera

case with thirty-two rounds of .22 caliber bullets, a stun gun case, and rubber

gloves. Inside the doll, the officers found a handwritten note from defendant to

Ji.L., which stated that she loved him.

Thereafter, detectives from the Morris County Sheriff's Office (MCSO)

searched a residence in New York, where defendant had been staying since she

was barred from the "marital" home. Among other items, the detectives

recovered a floral box containing letters to each of the children, savings bonds

addressed to the children, and a letter labeled "[L.A.F.'s] Final Wishes." In the

letter, defendant set forth her wishes regarding her funeral arrangements and

distribution of her property upon her death.

Sergeant Craig Brooks of the MCSO testified for the State as an expert in

the identification of firearms and their operability. He examined the gun

defendant possessed during the incident of May 17, 2015, as well as the gun's

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magazine and six rounds. He testified the gun could be operated with the safety

catch either on or off. He said a gun could be operable but still fail to discharge

a bullet.

The State also presented testimony from a witness who had conducted a

search of the State's firearms records. He said there was no record that defendant

had submitted any firearm application in New Jersey, and there was no record

showing a firearm permit had been issued to defendant in this State.

In addition, a forensic scientist with the New Jersey State Police testified

as an expert in drug analysis. She stated that the pills defendant was in

possession of during the incident on May 17, 2015, consisted of twelve tablets

of Zolpidem, twenty-two tablets of Hydrocodone, and one tablet of

Escitalopram.

After the State rested, defendant moved for a judgment of acquittal on

certain counts of the indictment. Judge Ahto granted the motion in part. The

judge dismissed counts eleven and twelve, charging possession of a weapon

(stun gun) for an unlawful purpose and possession of a prohibited device (stun

gun), respectively. The judge denied the motion as to the other counts.2

2
As a result of the judge's ruling, counts thirteen through twenty of the original
indictment were renumbered eleven to eighteen.
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Detective William Vanderhoof of the MTPD was called as a witness for

the defense. He said he responded to the scene at approximately 10:00 p.m. on

May 17, 2015. He took photographs and returned to police headquarters, where

he informed defendant of her Miranda3 rights. Defendant provided a statement

to the investigators. Vanderhoof testified that defendant did not exhibit any

signs of being under the influence and she did not appear to have any trouble

understanding him.

Detective Deanna Gardner, of the MCSO testified that on May 22, 2015,

she took 182 photographs of defendant. Gardner testified that defendant had

bruises on her face, left arm, right arm, legs, and foot. Gardner said she did not

know how or when defendant sustained these bruises.

The jury found defendant not guilty of first-degree attempted murder,

third-degree possession of a weapon (knife) for an unlawful purpose, and fourth -

degree unlawful possession of a weapon (knife). However, the jury found

defendant guilty on all other counts, other than the certain persons not to have

weapons count and three contempt counts to which defendant subsequently pled

guilty.

Defendant appeals and raises the following arguments:

3
Miranda v. Arizona, 384 U.S. 436 (1966).
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POINT I
ADMISSION OF OTHER CRIME EVIDENCE OVER
DEFENDANT'S OBJECTION WAS AN ABUSE OF
DISCRETION AND DEPRIVED [DEFENDANT] OF
A FAIR TRIAL.

POINT II
TESTIMONY REGARDING THE PRESENCE OF
PILLS AT THE SCENE OF DEFENDANT'S ARREST
WAS IRRELEVANT AND UNDULY PREJUDICIAL
AND SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE.

POINT III
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
MOTION FOR A JUDGMENT OF ACQUITTAL
WAS ERROR.

POINT IV
COMMENTS MADE BY THE PROSECUTOR
DURING HER SUMMATION CONCERNING
FACTS NOT IN EVIDENCE WAS GROSSLY
PREJUDICIAL AND DEPRIVED DEFENDANT OF
A FAIR TRIAL.

POINT V
THE JURY INSTRUCTION ON ENDANGERING
THE WELFARE OF A CHILD WAS ERRONEOUS
WHICH MANDATES REVERSAL OF THE
CONVICTIONS ON COUNTS THIRTEEN AND
FOURTEEN.

POINT VI
THE AGGREGATE OF ERRORS DENIED
DEFENDANT OF A FAIR TRIAL. (Not Raised
Below).

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II.

We first consider defendant's contention that Judge Taylor erred by

allowing the State to admit evidence of her other crimes, bad acts or wrongs

pursuant to N.J.R.E. 404(b). Defendant contends her emails, voicemails, and

funeral arrangements were not relevant to whether she intended to kill R.L. She

also contends the State could have presented testimony regarding her

relationship with R.L., without referencing the restraining order and the conduct

that led to the issuance of that order. She argues that the admission of the

N.J.R.E. 404(b) evidence deprived her of a fair trial.

We review trial courts' evidentiary rulings under an abuse of discretion

standard. State v. Green, 236 N.J. 71, 80-81 (2018) (quoting State v. Willis, 225 N.J. 85, 96 (2016)). Furthermore, we will not reverse the trial court's N.J.R.E.

404(b) determinations unless shown to be "a clear error of judgment." Ibid.

(quoting State v. Barden, 195 N.J. 375, 391 (2008)).

N.J.R.E. 404(b)(1) provides that admission of evidence of a person's other

crimes, wrongs, or acts is not permitted "to prove a person's disposition in order

to show that on a particular occasion the person acted in conformity with such

disposition." The rule provides, however, that such evidence may "be admitted

for other purposes, such as proof of motive, opportunity, intent, preparation,

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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)(2).

In State v. Rose, 206 N.J. 141, 179 (2011), the Court held that the

"threshold determination" under N.J.R.E. 404(b) is whether the State's evidence

is intrinsic to the charged crime, in which case it must only satisfy rules relating

to relevancy. Evidence is intrinsic to a charged offense (1) it "'directly proves'"

the offense, or (2) pertains to "'uncharged acts performed contemporaneously

with the charged crime [that] facilitate the commission of the charged crime.'"

Rose, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d

Cir. 2010)).

Where the evidence the State seeks to introduce is not intrinsic to the

charged offense, the court must undertake an N.J.R.E. 404(b) analysis. Ibid. In

State v. Cofield, 127 N.J. 328, 338 (1992), the Court established a four-part test

to determine the admissibility of evidence under N.J.R.E. 404(b):

(1) [t]he evidence of the other crime must be admissible
as relevant to a material issue;

(2) [i]t must be similar in kind and reasonably close in
time to the offense charged;

(3) [t]he evidence of the other crime must be clear and
convincing; and

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(4) [t]he probative value of the evidence must not be
outweighed by its apparent prejudice.

Here, Judge Taylor held an evidentiary hearing on the State's motion to

admit the N.J.R.E. 404(b) evidence, at which R.L. testified. Thereafter, the

judge filed a thorough and well-reasoned written opinion. The judge noted that

the State sought to admit an amended final restraining order as well as the

underlying conduct that led to issuance of that order. 4

Judge Taylor found that the restraining order was intrinsic to the burglary

charges. The judge stated that to prove the two burglary counts, the State had

to establish defendant was not "licensed or privileged to enter" the home. See

N.J.S.A. 2C:18-2(a)(1). Because the restraining order barred defendant from

the home, it was intrinsic to the burglary charges. The judge found, however,

that the underlying conduct did not directly prove and was not intrinsic to the

charged offenses.

Judge Taylor then considered whether the conduct that led to the issuance

of the restraining order, defendant's email communications, and her voicemails

4
We note that a judge entered a temporary restraining order on May 12, 2012,
and a final restraining order on June 20, 2012. Thereafter, defendant and R.L.
engaged in negotiations regarding custody, which resulted in the issuance of an
amended final restraining order. The State only sought to introduce the amended
final order.
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were admissible, applying the Cofield test. The judge found that the evidence

regarding defendant's relationship with R.L. and the children was relevant in

that it provided necessary background information. The evidence regarding

defendant's relationship with R.L. was reasonably close in time to the charged

offenses, there was clear and convincing evidence concerning the relationship,

and the probative value of the evidence was not outweighed by its apparent

prejudice.

The judge also found that defendant's emails and voicemail messages were

relevant to a material issue, specifically defendant's motive and intent in

attempting to kill R.L. The judge noted that the messages showed defendant's

"anger and bitterness" to R.L. This evidence also provided necessary

background information for the charged offenses.

In addition, Judge Taylor found that the uncharged acts of wrongdoing

were established by clear and convincing evidence, including R.L.'s testimony

and the communications themselves. The judge found that the probative value

of the evidence outweighed any prejudice to defendant, and there was no source

of evidence that was "equally probative." The judge cited Rose, in which the

Court noted that "a wide range of motive evidence is generally permitted," even

when prejudicial, "in recognition that [such evidence] may have "'extremely

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high probative value.'" 206 N.J. at 105 (quoting State v. Long, 173 N.J. 138,

164-65 (2002)).

The judge decided, however, that he would limit the evidence regarding

the conduct that led to the issuance of the restraining to the argument between

R.L. and defendant, defendant slapping R.L. in the face, and the destruction of

R.L.'s property. The judge stated that the trial judge would issue limiting

instructions to the jury with regard to any of defendant's prior threats to kill R.L.,

in order to limit any potential prejudice to defendant and to "channel the jury's

consideration" of the evidence.

On appeal, defendant contends Judge Taylor erred in his ruling on the

State's motion. She contends the N.J.R.E. 404(b) evidence was not relevant to

any material issue in the case, including her motive and intent. She asserts the

evidence did not directly prove any charged offense, the acts were not performed

contemporaneously with the charged offenses, and the court should have

excluded evidence that she slapped R.L. during the argument in May 2015. She

also contends the emails, voicemails, and her instructions regarding her funeral

were not relevant to whether she intended to kill R.L.

We are convinced these arguments lack sufficient merit to warrant

extended discussion. R. 2:11-3(e)(2). The record fully supports the judge's

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findings of fact and conclusion that the evidence was either intrinsic to the

charged offenses or otherwise admissible under Cofield. We conclude the trial

court did not abuse its discretion by allowing the State to present the N.J.R.E.

404(b) evidence at trial.

III.

Next, defendant argues that the trial court erred by allowing the State to

present testimony regarding the pills found at the scene on May 17, 2015. She

contends the evidence was irrelevant and unduly prejudicial.

Relevant evidence is that "having a tendency in reason to prove or

disprove any fact of consequence to the determination of the action," N.J.R.E.

401, and is admissible, absent a specific exception. N.J.R.E. 402. "Relevant

evidence 'need not be dispositive or even strongly probative in order to clear the

relevancy bar.'" State v. Santamaria, 236 N.J. 390, 405 (2019) (quoting State v.

Cole, 229 N.J. 430, 447 (2017)). "[T]he test of relevancy" is "whether such

evidence renders the desired inference more probable than it would be without

the evidence. . . . [The] test is broad and favors admissibility." State v. Deatore,

70 N.J. 100, 116 (1976).

Relevant evidence may, however, "be excluded if its probative value is

substantially outweighed by the risk of (a) undue prejudice, confusion of issues,

A-4297-17T4
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or misleading the jury or (b) undue delay, waste of time, or needless presentation

of cumulative evidence." N.J.R.E. 403. "[T]here must be a 'very strong'

showing of prejudice to exclude evidence of a defendant's motive." State v.

Castagna, 164, 180 (App. Div. 2008) (quoting State v. Covell, 157 N.J. 554, 565

(1999)).

Here, Judge Taylor determined the evidence defendant was in possession

of the pills found at the scene was relevant to defendant's intent and purpose in

entering the home on the evening of May 17, 2015. The judge noted that

defendant had obtained with valid prescriptions, but they were not in their

bottles. The judge also noted the number of pills involved and their location at

the scene of the charged crimes. The judge observed that defendant brought the

pills into the home along with a gun, extra bullets, a taser, and a knife.

Judge Taylor found that these facts were relevant to the elements of the

offenses that the State had to establish at trial, including defendant's purpose and

intent for entering the home. The judge also found the probative value of the

evidence was not substantially outweighed by the prejudice to defendant from

its admission and should not be excluded under N.J.R.E. 403. We are convinced

the record fully supports the judge's findings.

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Defendant argues, however, that without evidence from an expert, opining

that the pills were capable of causing her death, the evidence that she possessed

the pills was irrelevant to the charged offenses. She contends the evidence did

not support the State's theory that she intended to kill herself after she killed

R.L. We disagree. There is sufficient credible evidence in the record to support

Judge Taylor's finding that the circumstances regarding defendant's possession

of the pills were relevant to defendant's motive and intent in entering the home

on the evening of May 17, 2015.

We reject defendant's contention that expert testimony was required to

show that if defendant had ingested the pills, they could have caused her death.

Based on its common experience and understanding, a reasonable jury could

infer defendant intended to take her own life, and that defendant believed if she

ingested the pills, they could cause her death. These matters were not "beyond

the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984).

IV.

Defendant also contends the trial judge erred by denying her motion for a

judgment of acquittal on count fourteen (originally count sixteen), in which she

was charged with second-degree endangering the welfare of a child, Ji.L, in

violation of N.J.S.A. 2C:24-4(a). Defendant argues that Ji.L. did not meet the

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definition of an abused or neglected child because he remained in his room and

was not present when the altercation that took place downstairs in the home.

She contends that Ji.L. suffered no harm. 5

Rule 3:18-1 provides that after the State has presented its case, the trial

court may enter a judgment of acquittal on one or more of the offenses charged

"if the evidence is insufficient to warrant a conviction." The court should "deny

the motion if 'viewing the State's evidence in its entirety, be that evidence direct

or circumstantial,' and giving the State the benefit of all reasonable inferences,

'a reasonable jury could find guilt beyond a reasonable doubt.'" State v. Felsen,

383 N.J. Super. 154, 159 (App. Div. 2006) (quoting State v. Reyes, 50 N.J. 454,

458-59 (1967)).

N.J.S.A. 2C:24-4(a) provides:

(1) Any person having a legal duty for the care of a
child or who has assumed responsibility for the care of
a child who engages in sexual conduct which would
impair or debauch the morals of the child is guilty of a
crime of the second degree. Any other person who
engages in conduct or who causes harm as described in
this paragraph to a child is guilty of a crime of the third
degree.

5
We note that in her brief, defendant does not argue that the judge erred by
denying her motion for a judgment of acquittal on any other count of the
indictment. Therefore, defendant is deemed to have waived any argument
regarding the court's ruling on the other counts that were the subject of the
motion. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
A-4297-17T4
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(2) Any person having a legal duty for the care of a
child or who has assumed responsibility for the care of
a child who causes the child harm that would make the
child an abused or neglected child as defined in
[N.J.S.A. 9:6-1], [N.J.S.A. 9:6-3], and [ N.J.S.A. 9:6-
8.21] is guilty of a crime of the second degree. Any
other person who engages in conduct or who causes
harm as described in this paragraph to a child is guilty
of a crime of the third degree.

[N.J.S.A. 2C:24-4(a).]

N.J.S.A. 9:6-1 defines "[a]buse of a child" as, in relevant part, "the

performing of any indecent, immoral or unlawful act or deed, in the presence of

a child, that may tend to debauch or endanger or degrade the morals of the child

. . . ." In addition, N.J.S.A. 9:6-8.21(c) states that an "[a]bused or neglected

child" includes a child under the age of eighteen

(4) . . . whose physical, mental, or emotional condition
has been impaired or is in imminent danger of
becoming impaired as the result of the failure of his
parent or guardian, as herein defined, to exercise a
minimum degree of care (a) in supplying the child with
adequate food, clothing, shelter, education, medical or
surgical care though financially able to do so or though
offered financial or other reasonable means to do so, or
(b) in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court; . . .

A-4297-17T4
23
In State v. N.A., 355 N.J. Super. 143, 150-51 (App. Div. 2002), we noted

that N.J.S.A. 2C:24-4(a) does not require that any act or omission by the parent

or caretaker result in actual harm to the child. Rather, based on the plain

language of N.J.S.A. 9:6-8.21(c)(4)(b), it is sufficient that the parent or

caretaker's conduct exposes the child to a "'substantial risk'" of harm. Ibid.

We are convinced Judge Ahto did not err by denying defendant's motion

for a judgment of acquittal on the endangering charge pertaining to Ji.L. While

the State did not establish that Ji.L. was at substantial risk of physical harm, a

reasonable jury could find that defendant's actions placed Ji.L. at a substantial

risk of emotional harm, as a result of the altercation that was taking place in the

house.

We reject defendant's contention that the State could not establish that she

endangered the welfare of Ji.L. because he was not physically present in the

room where the altercation occurred. As we noted previously, Ji.L. was in the

house and heard what was going on downstairs. Ji.L. heard someone mention a

gun and, in fear, he barricaded himself in his room. Based on this evidence, a

reasonable jury could find, beyond a reasonable doubt, that defendant committed

an immoral or illegal act in Ji.L.'s presence.

A-4297-17T4
24
Defendant's arguments on this point lack sufficient merit to warrant

further comment. R. 2:11-3(e)(2).

Defendant further argues that the assistant prosecutor made certain

comments during her summation which were grossly prejudicial. She contends

the prosecutor's comments deprived her of a fair trial.

"[P]rosecutorial misconduct is not grounds for reversal of a criminal

conviction unless the conduct was so egregious as to deprive [the] defendant of

a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v.

Chew, 150 N.J. 30, 84 (1997)). "To justify reversal, the prosecutor's conduct

must have been clearly and unmistakably improper, and must have substantially

prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the

merits of his [or her] defense." State v. Nelson, 173 N.J. 417, 460 (2002)

(alterations in original) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).

"[P]rosecutors are permitted considerable leeway to make forceful,

vigorous arguments in summation," but must generally limit their comments to

the evidence presented and reasonable inferences therefrom. Id. at 472. On

appeal, the court must assess the prosecutor's comments in the context of the

entire record. Ibid. "[A] 'fleeting and isolated' remark is not grounds for

A-4297-17T4
25
reversal." State v. Gorthy, 226 N.J. 516, 540 (quoting State v. Watson, 224 N.J.

Super. 354, 362 (App. Div. 1988)).

When counsel fails to object to a prosecutor's remarks, to warrant reversal,

the remarks must be "of such a nature as to have been clearly capable of

producing an unjust result." Id. at 540 (quoting R. 2:10-2). Generally, if there

is no objection, the remarks will not be deemed prejudicial. Timmendequas,

161 N.J. at 576. Counsel's failure to object suggests that counsel did not

consider the remarks to be prejudicial at the time they were made. Ibid.

Moreover, the failure to raise a timely objection deprives the trial court of the

opportunity to address any impropriety. Ibid.

Here, the assistant prosecutor stated defendant had certain "options" for

addressing the "issues" she had regarding the breakup of her relationship with

R.L. The prosecutor said one of those "options" was to see the psychiatrist

defendant had been seeing concerning visitation with the children. Defendant's

counsel objected to that comment.

The State concedes the prosecutor's reference to defendant's psychiatrist

was improper because it was not directly supported by testimony. However, this

was a fleeting, isolated comment. When viewed in the context of the

prosecutor's entire summation, the comment was not clearly and unmistakably

A-4297-17T4
26
improper. In addition, the trial judge issued a timely curative instruction,

informing the jury it must be guided by its own recollection of the evidence. We

must assume the jury followed the court's instructions. Nelson, 173 N.J. at 447.

The prosecutor continued her closing argument. She said the jurors had

taken an oath "to decide this case fairly and impartially and without passion and

sympathy." She concluded by stating that if the jurors "find the defendant not

guilty, she doesn't need your sympathy. And, if you find her guilty, she doesn't

deserve it. Thank you." Defense counsel did not object to these comments.

On appeal, defendant argues that the prosecutor's final remarks "were

meant to generate sympathy for the victim" and were "totally inappropriate."

Again, we disagree. It appears the prosecutor was merely attempting to remind

the jury that it must decide the case 'without passion and sympathy."

However, even if the comment is deemed to be improper, when viewed in

the context of the prosecutor's entire summation, the comment was not clearly

and unmistakably improper and did not substantially prejudice defendant's right

to a fair trial. It was an isolated, fleeting remark, and defense counsel's failure

to object indicates that counsel did not view the comment as prejudicial when it

was made.

A-4297-17T4
27
VI.

Defendant argues that the trial judge erred in instructing the jury on the

endangering charges in counts thirteen and fourteen (originally counts fifteen

and sixteen). Defendant contends the judge erred by instructing the jury that to

establish that a child was an abused child, the abuse "shall consist of the

following act or acts. The performing of any indecent, immoral or unlawful act

or deed in the presence of a child that may tend to debauch or endanger the

morals of a child."

Defendant contends the charge was not appropriate for this case. She

contends she did not perform any actions that had any impact upon the morals

of either child. Defendant contends the reference to acts that could "debauch,

endanger or degrade the moral" of a child only pertain to sexual offenses. She

therefore argues that the convictions on counts thirteen and fourteen should be

set aside.

"[A]ppropriate and proper charges are essential for a fair trial." State v.

Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613

(2004) (internal quotations omitted)). The trial court must provide the jury with

"a comprehensible explanation of the questions that [it] must determine ,

A-4297-17T4
28
including the law of the case applicable to the facts that the jury may find." Id.

at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

"Erroneous instructions on matters or issues that are material to the jury's

deliberation are presumed to be reversible error in criminal prosecutions." State

v. Jordan, 147 N.J. 409, 422 (1997) (citing State v. Warren, 104 N.J. 571, 579

(1986)). When reviewing the correctness of a jury instruction, we must examine

the entire charge. State v. R.B., 183 N.J. 308, 324 (2005).

Where, as in this case, no objection is raised to the instruction, we consider

the instructions for plain error and must determine if the instructions were

"clearly capable of producing an unjust result." State v. Alexander, 233 N.J.
132, 141-42 (2018) (citing R. 2:10-2). "The mere possibility of an unjust result

is not enough." Id. at 142 (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)).

"Rather, [t]he possibility must be real, one sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise might not have

reached." Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Here, the judge read nearly verbatim from the applicable Model Jury

Charge for N.J.S.A. 2C:24-4(a)(2) (Model Jury Charges (Criminal),

"Endangering the Welfare of a Child, Abuse or Neglect (Second Degree)" (rev.

A-4297-17T4
29 Mar. 9, 2015)). In defining the harm that would make a child abused or

neglected, the judge drew upon the relevant section of N.J.S.A. 9:6-1.

As stated previously, N.J.S.A. 9:6-1(e) defines "abuse of a child" as "the

performing of any indecent, immoral or unlawful act or deed, in the presence of

a child, that may tend to debauch or endanger or degrade the morals of the child."

We reject defendant's contention that the statute only pertains to conduct of a

sexual nature. Neither N.J.S.A. 9:6-1(e) nor N.J.S.A. 2C:24-4(a)(2) limits the

prohibited conduct to sexual conduct, or references "sexual conduct" or "sexual

offenses."

We are convinced the charge was appropriate. A reasonable jury could

find that defendant's alleged actions, which included aggravated assault upon

J.L, were indecent, immoral, or unlawful acts. The jury also could reasonably

find that the performance of such acts, while Je.L. and Ji.L. were at home, could

"tend to" endanger or degrade the morals of those two children.

Affirmed.

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30

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