NOT FOR PUBLICATION WITHOUT THE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-5162-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YASMEEN ANDERSON,
Defendant-Appellant.
_____________________________
Submitted May 10, 2017 – Decided September 18, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
14-04-0211.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Lauren
Martinez, Assistant Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by GOODEN
BROWN, J.A.D.
Following a jury trial, defendant was convicted of fourth-
degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and
acquitted of third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2), and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d). She was sentenced on March 13,
2015, to a one-year probationary term. Defendant now appeals from
the memorializing judgment of conviction entered on March 20,
2015. We have considered defendant's arguments in light of our
review of the record and applicable legal principles. We affirm,
as we conclude that defendant's contentions are without merit.
The following facts were adduced at the trial. At
approximately 2:30 p.m. on February 5, 2014, Sergeant Robert Lavin
of the Bound Brook Police Department was dispatched to a Fisher
Avenue address on a report of a domestic dispute. Upon arrival,
Lavin overheard both a male and a female voice "yelling and
screaming" inside the residence. After Officer Jan Babula arrived
to back-up Lavin, Lavin knocked on the front door of the residence
and identified himself and his partner as police officers. About
fifteen seconds later, a woman Lavin recognized as defendant from
prior domestic disputes partially opened the door. Lavin observed
a man known to him as R.C., defendant's live-in boyfriend, seated
on the stairwell next to the front door. Defendant continued to
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yell at R.C. and refused to open the door entirely despite Lavin's
insistence.
In an attempt to defuse the situation, Lavin ordered R.C. to
go upstairs. After R.C. complied, defendant opened the door all
the way, at which point Lavin and Babula observed defendant holding
a knife in her right hand. Lavin described the blade of the knife
as approximately seven inches in length. Babula described the
knife as having a silver tip. Lavin and Babula immediately drew
their service revolvers and Lavin ordered defendant to drop the
knife. Initially, defendant refused to comply and spewed
profanities while still brandishing the knife. Defendant
exclaimed repeatedly "[f]**k this, I'm tired of dealing with this
shit . . . . [M]ake me drop the knife." Lavin continuously ordered
defendant to calm down and drop the knife. After about two
minutes, defendant retreated to the kitchen area of the residence
with Lavin and Babula following. Eventually, defendant dropped
the knife on the kitchen counter, at which point she was
handcuffed, placed under arrest, and the knife was seized.
After defendant was subdued, Lavin and Babula asked R.C. what
happened. R.C. responded "[t]he crazy bitch cut me" and rolled
up his sleeve to display a small laceration on his forearm area.
Both Lavin and Babula believed the laceration was a fresh wound.
Lavin "could see the open redness and the moisture on the
3 A-5162-14T2
laceration itself[,]" and Babula observed "no evidence of healing"
or "scabbing." At the scene, Babula took photographs of the wound,
which were admitted into evidence at the trial.
R.C. testified that on the date in question, defendant went
into a jealous rage over other women calling him and demanded he
leave her apartment. When he refused, she called the police.
According to R.C., when the police arrived, they drew their service
weapons and repeatedly ordered defendant to drop the knife.
However, R.C. denied seeing defendant with a knife and denied
telling the police officer that defendant had cut him. When
confronted with the photographs depicting the wound, R.C.
testified that it was an old wound he had "picked at" and removed
the scab. Further, R.C. testified that he sent a letter to the
Prosecutor's Office denying defendant did anything to him.
At the conclusion of the State's case, defendant moved for a
judgment of acquittal pursuant to Rule 3:18-1, which the court
denied. After the verdict was rendered and defendant was
sentenced, defendant filed a notice of appeal. On appeal,
defendant raises the following points for our consideration:
POINT I
[R.C.'s] HEARSAY STATEMENT INDICATING THAT HE
HAD BEEN CUT BY DEFENDANT WAS NOT AN EXCITED
UTTERANCE AND SHOULD HAVE BEEN EXCLUDED,
MANDATING A NEW TRIAL ON THE CHARGE OF
UNLAWFUL POSSESSION OF A KNIFE.
4 A-5162-14T2
POINT II
THE IMPROPER USE OF "AND/OR" REFERRING TO
THREE POSSIBLE VICTIMS IN REGARDS TO
ASSESSMENT OF UNLAWFUL POSSESSION OF A KNIFE
WAS AMBIGUOUS AND COULD HAVE LED TO A NON-
UNANIMOUS VERDICT.
Defendant argues that the trial court erroneously admitted
R.C.'s statement to police, "[t]he crazy bitch cut me[,]" as an
excited utterance. "Trial court evidentiary determinations are
subject to limited appellate scrutiny, as they are reviewed under
the abuse of discretion standard." State v. Buda, 195 N.J. 278,
294 (2008). The excited utterance exception to the hearsay rule
allows a trial court to admit certain out-of-court statements
"relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event
or condition and without opportunity to deliberate or fabricate."
N.J.R.E. 803(c)(2). Such statements "are admissible under the
rationale that excitement suspends the declarant's powers of
reflection and fabrication, consequently minimizing the
possibility that the utterance will be influenced by self interest
and therefore rendered unreliable." Buda, supra, 195 N.J. at 293
(quoting State v. Cotto, 182 N.J. 316, 327-28 (2005)).
Various factors bear on the declarant's opportunity to
fabricate, including:
5 A-5162-14T2
(1) the amount of time that transpired between
the initial observation of the event and the
subsequent declaration of the statement; (2)
the circumstances of the event; (3) the mental
or physical condition of the declarant; (4)
the shock produced; (5) nature of the
statement; and (6) whether the statement was
made voluntarily or in response to a question.
[Buda, supra, 195 N.J. at 294 (citation and
internal quotations omitted).]
Although each of these factors is important, the crucial
issue "is the presence of a continuing state of excitement that
contradicts fabrication and provides trustworthiness." Cotto,
supra, 182 N.J. at 328 (citation and internal quotations omitted);
see also State v. Branch, 182 N.J. 338, 366 (2005) (focusing
attention on "the opportunity to fabricate or deliberate" elements
of N.J.R.E. 803(c)(2) in conducting the requisite analysis). Thus,
in this fact-sensitive analysis, a court must determine "whether
the facts and circumstances reasonably warrant the inference that
declarant was still under the stress of excitement caused by the
event." State v. Baluch, 341 N.J. Super. 141, 182 (App.Div.2001).
Here, there is no doubt defendant's actions were upsetting
and alarming to R.C., and that the circumstances were shocking and
disturbing. R.C. watched as defendant brandished a knife during
a two-minute stand-off with police while their guns were drawn.
The victim's statement was made under the stress and excitement
of these highly charged circumstances. We find that the record
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adequately supports the trial court's decision, and therefore
discern no abuse of discretion.
Next, defendant argues for the first time on appeal that the
court erroneously included "the 'and/or' language referring to
three separate victims as providing three separate variants of
unlawful possession of a weapon" in charging the jury on the third
element of the offense. According to defendant, the erroneous
charge "deprived [defendant] due process of law and a fair trial
under both the United States and New Jersey Constitutions" and
"allowed for a non-unanimous verdict."
When a defendant fails to object to a jury charge at trial,
we review for plain error, and "disregard any alleged error 'unless
it is of such a nature as to have been clearly capable of producing
an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Plain error, in the context of a jury charge,
is "[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring about
an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014)
(alteration in original) (quoting State v. Adams, 194 N.J. 186,
207 (2008)).
7 A-5162-14T2
Of course, in reviewing any claim of error relating to a jury
charge, "[t]he charge must be read as a whole in determining
whether there was any error[,]" State v. Torres, 183 N.J. 554, 564
(2005), and the effect of any error must be considered "in light
of the overall strength of the State's case." State v. Walker,
203 N.J. 73, 90 (2010) (citation omitted). However, a defendant's
attorney's failure to object to jury instructions not only "gives
rise to a presumption that he did not view [the charge] as
prejudicial to his client's case[,]" State v. McGraw, 129 N.J. 68,
80 (1992), but is also "considered a waiver to object to the
instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013).
Undoubtedly, appropriate and proper jury charges are
essential to a fair trial. State v. Savage, 172 N.J. 374, 387
(2002). However, we reject defendant's contention that the use
of the phrase "and/or" in the court's jury instructions led to the
type of confusion we found in State v. Gonzalez, 444 N.J. Super.
62, 75-76 (App. Div.), certif. denied, 226 N.J. 209 (2016). There,
we determined that a jury charge repeatedly employing the phrase
"and/or" rendered it impossible to determine whether the jury
unanimously agreed the defendant was guilty as an accomplice or
co-conspirator in a robbery or an aggravated assault, or both.
Ibid. In finding plain error, we concluded
8 A-5162-14T2
[t]he instructions were inherently ambiguous
because the judge failed to explain in clear
English what the jurors were required to
decide and, as a result, generated numerous
ways in which the jury could have convicted
without a shared vision of what defendant did,
or convicted defendant on some charges without
finding all the elements were proven beyond a
reasonable doubt.
[Id. at 77 (citing State v. Gentry, 183 N.J.
30, 32 (2005)).]
In its denial of certification, the Supreme Court expressly limited
our holding "to the circumstances in which it was used in th[at]
case." Gonzalez, supra, 226 N.J. at 209.
Here, the judge's minimal use of that term did not equate to
the nineteen times the trial judge used it in Gonzalez. Further,
the judge essentially tracked the Model Jury Charge. See Model
Jury Charge (Criminal), "Unlawful Possession of a Weapon (N.J.S.A.
2C:39-5(d))" (Apr. 18, 2005). The jury was instructed as follows:
Now, the third element that the State
must prove beyond a reasonable doubt is that
the [d]efendant possessed [the knife], under
circumstances not manifestly appropriate for
such . . . lawful uses as it may have. It is
not necessary for the State to prove that the
[d]efendant formed an intent to use [the
knife] as a weapon. It is, however, necessary
for the State to prove that it was possessed
under such circumstances that a reasonable
person would recognize that it was likely to
be used as a weapon.
In other words, under circumstances where
it posed an immediate threat to . . . [R.C.],
9 A-5162-14T2
and/or Officer Babula, and/or Sergeant Robert
Lavin.
The commission of the crime did not depend upon the
identification of a particular victim. Rather, defendant could
be found guilty if she possessed the knife under circumstances
that posed a threat to any one of the three victims. Indeed,
"[i]n determining whether the use of a weapon is manifestly
appropriate or inappropriate under the circumstances, a jury must
look to the facts of the case and not to the subjective intent of
the actor." State v. Montalvo, 229 N.J. 300, 317 (2017).
Moreover, given the facts of this case and the testimony at trial,
the judge's use of "and/or" in the context of the entire charge
did not lead to an "ultimate determination of guilt or innocence
. . . based on speculation, misunderstanding, or confusion." State
v. Olivio, 123 N.J. 550, 568 (1991). Accordingly, we find no
error, let alone plain error, in the jury instruction.
Affirmed.
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