RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1123-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARTHUR E. MORGAN, III,

Defendant-Appellant. 

___________________________

Submitted January 31, 2017 – Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Indictment No. 

12-06-1138.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Thomas G. Hand, Designated 

Counsel, on the briefs).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Mary R. 

Juliano, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

A two-year-old girl was found dead in a stream. The child 

had been strapped into a car seat and the car seat had been 

NOT FOR PUBLICATION WITHOUT THE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.

March 21, 2017
2 A-1123-14T2

weighted down with a tire jack. An autopsy report concluded that 

the child had drowned. Just prior to her death, the girl had been 

in the care of her father, defendant Arthur E. Morgan, III.

A jury convicted defendant of first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2); second-degree endangering the welfare of a 

child, N.J.S.A. 2C:24-4(a); and third-degree interference with 

custody of a child, N.J.S.A. 2C:13-4(a)(1). The jury also found 

that defendant committed the murder by his own conduct and that 

the victim was less than fourteen years old, which is an

aggravating factor under N.J.S.A. 2C:11-3(b)(4)(k). 

On the murder conviction, defendant was sentenced to life in 

prison without eligibility for parole as required by N.J.S.A.

2C:11-3(b)(4). As part of his murder conviction, defendant was 

also sentenced to the prescriptions of the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2. On his conviction for interfering 

with custody, defendant was sentenced to a consecutive five years 

in prison with two and a half years of parole ineligibility. The 

conviction for endangering the welfare of a child merged into the 

murder conviction.

Defendant appeals his convictions and sentence. We affirm.
3 A-1123-14T2

I.

The facts were established at trial. Defendant had been in 

a dating relationship with I.B.1 I.B. described the relationship 

as an on-again-off-again relationship that had lasted for over 

three years. Defendant and I.B. had been engaged, but I.B. had 

recently broken off the engagement. When the relationship was 

off, defendant obsessed about I.B. and would contact her 

excessively. For example, in the three days before the child's 

death, defendant called I.B. over 600 times.

Defendant and I.B. had a daughter, T.M.-G., who had been born 

in 2009. I.B. had primary custody of the daughter, and defendant 

had the right to parenting time. On November 21, 2011, defendant 

had parenting time with his two-year-old daughter beginning at 

approximately 2 p.m. He was supposed to return T.M.-G. at 6 p.m. 

The daughter, however, was never returned.

Through witness interviews, cell phone records, and store 

receipts, the police developed a timeline of defendant's 

activities on November 21, 2011. In the morning of that day, 

defendant had visited a friend, J.B., and they had smoked marijuana 

together. Between 11:30 a.m. and 1:20 p.m., defendant called a 

friend in California and the Greyhound Bus Company. At 

 

1 To protect privacy interests, witnesses and the victim will be 

identified by initials.
4 A-1123-14T2

approximately 2 p.m., defendant picked up his daughter. As he was 

leaving with T.M.-G., defendant yelled obscenities at I.B. At 

approximately 4 p.m., defendant called J.B. and asked if he wanted 

to buy defendant's car for $300. Shortly thereafter, he visited 

McDonald's and then went to Shark River Park. Witnesses saw a 

car, matching the description of defendant's car, in the park 

between 4:30 p.m. and 6 p.m.

At approximately 6 p.m., defendant went to J.B.'s apartment 

without the child. The two men had a drink together and J.B. 

described defendant as acting normal. Defendant informed J.B.

that he was going to California and asked J.B. to take him to the 

Asbury Park train station, which J.B. did at approximately 7 p.m.

Meanwhile, when T.M.-G. was not returned on time, I.B. called 

defendant to find out where he was. I.B. last spoke to defendant 

at approximately 6:30 p.m. on November 21, 2011. Defendant assured 

I.B. that T.M.-G. was okay, and he was getting gas and would be 

late. When defendant did not return with the child by 7 p.m., 

I.B. repeatedly called defendant, but he did not pick up any of 

her calls. At approximately 10 p.m., I.B. called the police.

Through surveillance videos, the police were able to track 

defendant's movements after he was dropped off at the Asbury Park 

train station. From Asbury Park, defendant traveled to the Long 

Branch train station and then to Penn Station in Newark. At Penn 
5 A-1123-14T2

Station, defendant boarded a Greyhound bus to Richmond, Virginia. 

Thereafter, defendant traveled from Virginia to California.

On November 29, 2011, United States Marshals arrested 

defendant in San Diego, California. Following his arrest, 

defendant was given his Miranda2 warnings, he waived his rights, 

and gave a video-recorded statement. During that statement, 

defendant admitted that he had taken his daughter to Shark River 

Park on November 21, 2011. He also admitted that he had placed 

his daughter in a car seat, weighted down the car seat with a car 

jack, and placed the child in a stream. Defendant then left his 

daughter in the stream. Defendant claimed that the child was 

still alive and sitting up when he left.

Defendant stated that he had left his daughter in the stream 

because he could not bear the thought that he would not be able 

to see her due to conflicts with I.B. In that regard, he stated 

that thinking about what the child would go through "completely 

made [him] crazy." He also explained that he wanted to make the 

final decision for his daughter and he was at peace because his 

daughter was in Heaven. 

The car seat with the lifeless child had been removed from a 

depth of approximately twenty inches of water. At that location, 

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
6 A-1123-14T2

the stream was approximately twenty-five feet wide and the seat 

was directly in the center of the stream. The seat had been on 

its right side with the child's left arm and leg facing skyward.

To try to determine how the car seat had come to that 

location, the prosecutor's office conducted three re-enactment

scenarios. During the re-enactments, they used a car seat matching 

the one in which the child had been found. They then placed a 

sandbag weighing thirty-nine pounds in the seat, which was the 

weight of the child at the time of her death. Finally, they 

weighed the seat down with a car jack.

In the first scenario, an officer waded from the bank into 

the stream up to approximately eight inches of water and placed 

the car seat in the water. The car seat did not move. In the 

second scenario, the officer waded further into the stream to a 

higher elevation of water and dropped the car seat into the stream. 

The car seat rocked, but remained upright and thereafter did not 

move. In the third scenario, the police dropped the car seat from 

the center of the bridge, the seat landed on its back in the water 

and immediately sank without moving thereafter.

Following defendant's interview, on December 1, 2011, a San 

Diego sheriff's detective informed defendant that he was being 

extradited to New Jersey. Defendant responded, "I know that New 
7 A-1123-14T2

Jersey doesn't have a death penalty so what am I looking at when 

I get back there, what sentence?" 

As part of their investigation, the police also identified a 

witness, C.T., with whom defendant had lived between July and 

October 2011. C.T. explained that she had allowed defendant to 

live rent free with her. She also stated that in July 2011, 

defendant had told her that "he would rather see his daughter dead 

than be with [I.B.]" C.T. also informed the police that she had 

lent defendant a car jack. At trial, defendant stipulated that 

the car jack lent by C.T. had been found attached to the child's 

car seat.

Prior to trial, defendant made a series of motions. He filed 

a motion for change of venue contending that there was presumptive 

prejudice against him because of media coverage of the child's 

death. The trial court denied that motion without prejudice to 

renewal during jury selection. Defendant also filed a motion to 

bar the prosecutor's re-enactment scenarios concerning how the car 

seat came to be located in the river. The trial court barred the 

State from introducing the videotape of the re-enactment

scenarios, but allowed a detective to testify as to the various 

scenarios performed and their results. 
8 A-1123-14T2

Defendant also moved to suppress the statements he had given, 

including his statement to the San Diego sheriff's detective. 

After conducting a hearing, the trial court denied that motion.

At trial, the State introduced testimony from more than twenty

witnesses. Among those witnesses, the jury heard from C.T. and 

the San Diego detective. The jury also heard redacted portions 

of defendant's recorded statement.

A medical examiner also testified concerning an autopsy 

conducted on T.M.-G. following her death. The medical examiner 

testified that the child had been healthy prior to her death and 

that there was no evidence of prior injury or abuse. The examiner 

opined that the child had died as a result of drowning and 

concluded that the child's death was a homicide.

After hearing the evidence, a jury convicted defendant of 

murder, endangering the welfare of a child, and interfering with 

the custody of a child. As already noted, defendant was then 

sentenced to life imprisonment without the possibility of parole. 

Defendant now appeals his convictions and sentence.

II.

On appeal, defendant makes six arguments, which he 

articulates as follows:

POINT I – BECAUSE THE TRIAL COURT'S CHARGE TO 

THE JURY WAS FLAWED THE CONVICTIONS MUST BE 
9 A-1123-14T2

REVERSED AND THE MATTER REMANDED FOR A NEW 

TRIAL

A. The trial court erred when it ignored the 

requirements of Delibero and refused to 

charge the jury with the Defense's 

proposed modified charge on "evidence of 

mental disease or defect["]

B. The trial court erred when it refused to 

charge the jury with passion/provocation 

manslaughter

C. The trial court failed to charge the jury 

on voluntary intoxication (not raised 

below)

POINT II – THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S REQUEST TO EXCUSE JUROR NUMBER 

[SIX] ONCE IT WAS DISCLOSED THAT JUROR NUMBER 

[SIX'S] DAUGHTER WAS FRIENDS WITH ONE OF THE 

WITNESSES

POINT III – THE TRIAL COURT ERRED WHEN IT 

ALLOWED [C.T.] TO TESTIFY REGARDING 

DEFENDANT'S STATEMENT THAT HIS DAUGHTER WOULD 

BE BETTER OFF DEAD

POINT IV – THE TRIAL COURT ERRED WHEN IT 

ADMITTED DEFENDANT'S STATEMENT TO [THE 

SHERIFF'S DETECTIVE] INTO EVIDENCE

POINT V – THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT A CHANGE OF VENUE

POINT VI – THE SENTENCE WAS EXCESSIVE

Having reviewed the record and law, we find no merit in any of 

defendant's arguments. We will address each argument in turn.
10 A-1123-14T2

A. The Jury Instructions

Defendant contends that the jury instructions were defective 

because they did not include (1) a modified diminished capacity 

instruction, (2) a passion/provocation manslaughter charge, and 

(3) an intoxicated defense charge.

Correct and appropriate jury charges are essential to a fair 

trial. Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002). 

Moreover, a trial judge has the duty to ensure that the jury 

receives accurate instructions on the law as it pertains to the 

facts and issues in each case, "irrespective of the particular 

language suggested by either party." State v. Baum, 224 N.J. 147, 

159 (2016).

"Jury charges 'must outline the function of the jury, set 

forth the issues, correctly state the applicable law in

understandable language, and plainly spell out how the jury should 

apply the legal principles to the facts as it may find them 

. . . .'" Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v. 

Portadin, 163 N.J. 677, 688 (2000)). Accordingly, "[an] alleged 

error is viewed in the totality of the entire charge, not in 

isolation." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 

2010) (quoting State v. Nero, 195 N.J. 397, 407 (2008)), certif. 

denied, 205 N.J. 81 (2011).
11 A-1123-14T2

Generally, "an appellate court will not disturb a jury's 

verdict based on a trial court's instructional 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.'" Wade v. Kessler 

Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 

N.J. 235, 254 (1996)). The focus is whether the instructions are 

capable of producing an unjust result or prejudicing substantial 

rights. Fisch v. Bellshot, 135 N.J. 374, 392 (1994). 

Clearly erroneous instructions are "poor candidates for 

rehabilitation under the harmless error philosophy." State v. 

Loftin, 146 N.J. 295, 412 (1996) (quoting State v. Simon, 79 N.J.

191, 206 (1979)). Nevertheless, "[c]ourts uphold even erroneous 

jury instructions when those instructions are incapable of 

producing an unjust result or prejudicing substantial rights." 

Fisch, supra, 135 N.J. at 392.

1. Diminished Capacity/State-of-Mind Instruction

Defense counsel asked the court to include a modified version 

of the "Evidence of Mental Disease or Defect" jury instruction. 

Although defense counsel acknowledged that he would not be 

presenting testimony regarding mental disease or defect, and that 

neither a diminished capacity nor an insanity defense applied in 
12 A-1123-14T2

this case, he nevertheless asked for a modified "state-of-mind" 

charge.

In making that argument, defense counsel cited and relied on 

the decision in State v. Delibero, 149 N.J. 90 (1997). The 

defendant in Delibero was charged with robbery and he introduced 

evidence of his diminished capacity and insanity. Id. at 94-95. 

That evidence included testimony from two psychiatric experts, 

both of whom testified that the defendant was suffering from a 

mental illness at the time of the offense. Ibid. There, the 

Court held that when a defendant presents evidence of insanity or 

diminished mental capacity, the jury should be instructed to 

consider such evidence in determining whether the State had proven 

beyond a reasonable doubt that defendant possessed the requisite 

mental state to be convicted of the offense charged. Id. at 106-

07.

Here, the trial court rejected defendant's requested "stateof-mind" charge for three reasons. First, the court reasoned that 

given defendant's concession that he would not submit a mental 

defense to the jury, the charge would be confusing and misleading. 

Second, the court pointed out that the model charge on murder 

sufficiently and correctly addressed the state-of-mind and 

reasonable doubt issues. Finally, the court distinguished the 

facts in this case from the facts in Delibero. Id. at 93-95. The 
13 A-1123-14T2

trial court then gave instructions that tracked the model charges 

for murder, including an instruction on the requisite state of 

mind and that the State had the burden to prove the requisite 

purpose or knowledge beyond a reasonable doubt.

We discern no error in the trial court's jury instruction as 

it related to state of mind. Here, there was no evidence that 

defendant suffered from a mental disease or defect affecting his 

ability to act with the requisite purpose or knowledge. Defendant 

offered no expert to support such a position. Instead, defendant 

contends that evidence related to his mental defects included (1) 

statements he made to the police during his interview, (2) 

references that he suffered from sleep deprivation, (3) his 

obsessive phone calls, and (4) a reference to an attempted suicide 

in June 2011. 

As the trial court correctly found, none of that evidence 

rose to the level of establishing insanity or a diminished 

capacity. See Id. at 92 ("Diminished capacity describes a disease 

or defect of mind that may negate the mental state that is an

element of the offense charged."). Indeed, as already pointed 

out, defense counsel did not request a diminished capacity 

instruction. Instead, he requested a sui generis "state-of-mind" 

instruction that he crafted. We agree with the trial court that 
14 A-1123-14T2

giving such an instruction in the context of this case would have 

been potentially confusing and misleading.

Finally, we note, that defense counsel was permitted to make 

arguments about defendant's state of mind as it related to the 

charges against him. Thus, there is also no showing of an unjust 

result or prejudice to any of defendant's rights.

2. Passion/Provocation

Defendant also argues that the trial court erred in not 

instructing the jury on the passion/provocation defense to murder. 

We disagree.

Passion/provocation manslaughter is a murder committed in the 

heat of passion in response to provocation. N.J.S.A. 2C:11-

4(b)(2). Passion/provocation has four elements: "(1) reasonable 

and adequate provocation; (2) no cooling off time in the period 

between the provocation and the slaying; (3) a defendant who 

actually was impassioned by the provocation; [and] (4) a defendant 

who did not cool off before the slaying." State v. Galicia, 210 

N.J. 364, 379-80 (2012) (quoting State v. Josephs, 174 N.J. 44, 

103 (2002)). The first two elements are "objective[,]" and if 

those elements are supported by the evidence, passion/provocation 

manslaughter should be charged and the remaining two subjective 

elements should be left to the jury to consider. Josephs, supra,

174 N.J. at 103. 
15 A-1123-14T2

Here, defendant argues that he killed his two-year-old 

daughter in the heat of passion resulting from reasonable 

provocation by the child's mother. The trial court denied 

defendant's request for such an instruction, holding that 

provocation will not mitigate the murder of an innocent bystander. 

The trial court also reasoned that the words of the mother, spoken 

over the phone to defendant, were not sufficient to constitute 

adequate provocation. Finally, the trial court found that there 

was no rational basis for a jury to determine that defendant's 

response of murdering the child was proportionate to any words 

allegedly spoken by the mother.

We agree with the trial court on all three grounds. We have 

previously held that "the killing of innocent bystanders does not 

qualify as a homicide incited by provocation." State v. Lewis, 

223 N.J. Super. 145, 151 (App. Div.), certif. denied, 111 N.J. 584 

(1988). That holding in Lewis applied and controlled here. 

Defendant's argument that the Supreme Court may someday disagree 

with our holding in Lewis is not persuasive. Indeed, the facts 

here only underscore that passion/provocation does not apply to 

the killing of an innocent child.

Moreover, the facts presented in this trial did not constitute 

adequate provocation. Furthermore, there was no evidence 

indicating that defendant had an inadequate cooling off period 
16 A-1123-14T2

between the alleged provocation and slaying. Defendant had his 

daughter in his care for several hours before he put her in the 

stream. During that time, he made phone calls to a friend, as 

well as to the child's mother. The record here is simply devoid 

of any evidence of either a proportional provocation or an 

inadequate time to cool off.

3. Voluntary Intoxication

Defendant never requested an intoxication instruction at 

trial. Now, however, he contends that because there was some 

evidence that he had smoked marijuana and purchased liquor, the 

trial judge should have sua sponte instructed the jury on voluntary 

intoxication. We discern no plain error and, thus, we conclude

that there was no error capable of producing an unjust result. 

Here, while there was some evidence that defendant smoked 

marijuana earlier in the day, there was no evidence that he was 

under the influence when he killed his child. Consequently, 

because the evidence did not "'clearly indicate' the 

appropriateness of [an intoxication] charge[,]" the trial judge 

did not err by not giving such a charge. State v. R.T., 411 N.J. 

Super. 35, 48 (App. Div. 2009) (quoting State v. Savage, 172 N.J.

374, 397 (2002)), certif. denied, 205 N.J. 493 (2011). 
17 A-1123-14T2

B. The Trial Court's Refusal to Excuse Juror Number Six

At the beginning of the fourth day of testimony, juror number 

six informed the trial judge that he had learned that a State's 

witness who testified the day before was a classmate of his 

daughter. The trial court appropriately questioned the juror in 

the presence of counsel. The juror explained that he had just 

learned that the witness had gone to school with his daughter and 

his daughter had informed him of that fact the night before. The 

juror also disclosed that when the witness actually testified, he 

did not recognize him, but he acknowledged that the witness had 

visited his house in the past. The juror then informed the court 

that the connection of the witness to his daughter would in no way 

affect his ability to be fair and impartial.

Following this questioning, defense counsel requested the 

judge to excuse juror number six. Counsel could only explain that 

defendant was not "comfortable now with this juror." The trial 

court properly found that there was no cause to dismiss juror 

number six. The trial court also noted that the witness' testimony 

was similar to another witness' testimony and really did not 

address a disputed issue.

Defendant now argues that had he known this information during 

jury selection, he would have exercised a peremptory challenge. 

Thus, his rights were adversely affected when the trial court 
18 A-1123-14T2

refused to excuse juror number six. We disagree. Once trial 

begins, jurors may be dismissed only for "good cause." R. 1:8-

2(d)(1). If a jury discloses information after he or she has been 

sworn which, if revealed during selection, would have drawn a 

peremptory challenge, there may be grounds for objection. See

State v. Jackson, 43 N.J. 148, 162 (1964). 

Here, in contrast, juror number six did not fail to disclose 

known information during the selection process. Instead, juror 

number six only became aware that one of the witnesses was a 

classmate of his daughter the night after the witness testified. 

Thus, the juror did not give incorrect or misleading information,

nor did he fail to disclose information during jury selection.

Moreover, there is no showing of any prejudice to defendant. 

Under questioning by the trial judge, the juror assured the court 

and counsel that the connection between his daughter and the 

witness would have no influence on his ability to be fair and 

impartial. There is nothing in the record to question that 

assurance.

C. Defendant's Statements to C.T.

Defendant challenges the trial court's admission of C.T.'s 

testimony that defendant told her that "he would rather see his 

daughter dead than be with her mother." Defendant contends that 

the prejudicial effect of that testimony outweighed its probative 
19 A-1123-14T2

value and the testimony should have been excluded under N.J.R.E.

403. Defendant also contends that the trial court's instruction 

to the jury concerning C.T.'s testimony was defective because it 

failed to mold the instruction to the facts.

We review a trial court's evidentiary rulings for abuse of 

discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). 

Accordingly, a trial court's evidentiary rulings will not be 

overturned unless a manifest injustice has occurred. State v. 

J.D., 211 N.J. 344, 354 (2012). "To the extent [a] defendant's 

argument . . . raises a question of law, . . . our review is de 

novo and plenary." Ibid.

N.J.R.E. 403 provides that "relevant evidence may be excluded 

if its probative value is substantially outweighed by the risk of 

(a) undue prejudice, confusion of issues, or misleading the jury." 

"The mere possibility that evidence could be prejudicial does not 

justify its exclusion" under N.J.R.E. 403. State v. Brockington, 

439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State v. Long, 

173 N.J. 138, 164 (2002)). Instead, for evidence to be excluded 

under N.J.R.E. 403, the probative value must be "so significantly 

outweighed by its inherently inflammatory potential as to have a 

probable capacity to divert the minds of the jurors from a 

reasonable and fair evaluation of the issues in the case." State 
20 A-1123-14T2

v. Wakefield, 190 N.J. 397, 429 (2007) (quoting State v. Koskovich, 

168 N.J. 448, 486 (2001)).

Here, the trial court conducted a Rule 104 hearing before 

allowing C.T. to testify. The judge found that the statement was 

a statement by a party opponent and was admissible hearsay under 

N.J.R.E. 803(b). The judge also found that the statement had 

probative value to the disputed issue concerning defendant's 

purpose and motive for killing his daughter. Finally, the judge 

found that probative value was not substantially outweighed by any

potential prejudice.

We discern no abuse of discretion in the trial court's ruling 

allowing C.T. to testify. Defendant's statements to C.T. went 

directly to the disputed issue of defendant's motive and planning 

of the murder. That the statement was made four months prior to 

the murder was a fact that the jury could consider in weighing the 

value of the testimony, but it does not support the exclusion of 

the testimony.

After C.T. testified, the court instructed the jury on the 

appropriate use of defendant's statement. In that regard, the 

court's instructions followed the model charge concerning 

statements of defendant. Defendant now argues that the charge was 

imbalanced because it focused the jury on defendant's intent 
21 A-1123-14T2

without instructions about considering evidence that negated

defendant's intent.

We discern no error in the trial court's instructions in this 

case. Moreover, defense counsel did not object to the instructions

when they were given and we discern no plain error in the 

instructions. State v. Funderburg, 225 N.J. 66, 79 (2016). 

D. Defendant's Statement to the San Diego Detective

Next, defendant contends that the trial court erred in 

allowing the San Diego detective to testify concerning the 

statement defendant made to the detective. During his extradition, 

defendant asked the San Diego detective: "I know that New Jersey 

doesn't have a death penalty, so what am I looking at when I get 

back there, what sentence?" Before trial, the court conducted a 

hearing and found that the statement was admissible and denied 

defendant's motion to suppress. Defendant did not challenge the 

statement under N.J.R.E. 403 at the trial, but he now argues that 

the statement's probative value is substantially outweighed by its 

prejudicial effect and, therefore, it should have been precluded 

under N.J.R.E. 403.

Defendant's statement to the detective about his potential 

sentence had probative value in that it tended to show he knew 

what he had done and that what he had done was wrong. We discern 

no error in the trial court's admission of that statement. 
22 A-1123-14T2

Moreover, we discern no plain error because the admission of that 

statement was not "clearly capable of producing an unjust result." 

R. 2:10-2; State v. Green, 447 N.J. Super. 317, 325 (App. Div. 

2016). 

E. The Motion for Change of Venue

Defendant also contends that the trial court erred when it 

denied his motion to change venue. Before trial, defendant filed 

a motion to change venue based on the presumptive prejudice against 

him because of media coverage of the child's death. The trial 

court denied the motion without prejudice, permitting defendant 

to renew the motion during jury selection. Defendant, however, 

never renewed his motion to change venue. 

We review a trial court's decision on a motion to change 

venue under an abuse of discretion standard. State v. Nelson, 173 

N.J. 417, 476-77 (2002). The trial court has discretion in 

determining whether a change of venue is "necessary to overcome 

the realistic likelihood of prejudice from pretrial publicity." 

State v. Biegenwald, 106 N.J. 13, 33 (1987) (quoting State v. 

Williams, 93 N.J. 39, 67-68 n. 13) (1983)). Here, we discern no 

abuse of discretion. The trial court afforded defendant an 

opportunity to renew the motion during jury selection. Defendant 

never took that opportunity. 
23 A-1123-14T2

Further, there is no evidence in the record that suggests the 

jury selection process was tainted by media publicity. Each 

potential juror was asked whether he or she had any knowledge of 

the case prior to the trial. Some answered "yes," but explained 

that their recollection of the event was vague and limited. The 

trial court also asked each prospective juror whether he or she 

could decide the case based solely on what will be presented during 

trial. Each selected juror answered affirmatively. 

F. The Sentence

Finally, defendant argues that the trial judge erred in 

imposing consecutive sentences for his convictions of murder and 

interfering with the custody of a child. In that regard, defendant 

contends that the sentencing judge failed to conduct an adequate 

analysis of the Yarbough factors. State v. Yarbough, 100 N.J. 627 

(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.

2d 308 (1986). We reject this contention.

Appellate review of sentencing decisions is deferential and 

governed by an abuse of discretion standard. State v. Blackmon, 

202 N.J. 283, 297 (2010). "The reviewing court must not substitute 

its judgment for that of the sentencing court." State v. Fuentes, 

217 N.J. 57, 70 (2014). An appellate court must affirm a sentence 

unless:
24 A-1123-14T2

(1) the sentencing guidelines were violated; 

(2) the aggravating and mitigating factors 

found by the sentencing court were not based 

upon competent and credible evidence in the 

record; or (3) "the application of the 

guidelines to the facts of [the] case makes 

the sentence clearly unreasonable so as to 

shock the judicial conscience."

[Fuentes, supra, 217 N.J. at 70 (alteration 

in original) (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)).]

Whether a sentence violates sentencing guidelines is a question 

of law that we review de novo. State v. Robinson, 217 N.J. 594, 

603-04 (2014).

In Yarbough, the Court set forth the factors to be considered 

when deciding whether to impose consecutive or concurrent 

sentences. Yarbough, supra, 100 N.J. at 643-44. The Yarbough

factors essentially focus upon "the nature and number of offenses 

for which the defendant is being sentenced, whether the offenses 

occurred at different times or places, and whether they involve 

numerous or separate victims." State v. Carey, 168 N.J. 413, 423 

(1989). The "no free crimes" guideline set forth in Yarbough

"tilts in the direction of consecutive sentences because the Code 

focuses on the crime, not the criminal." Ibid. 

Considering these criteria, the trial court properly imposed 

consecutive sentences because the court found that the 

interference with custody conviction was a separate crime from the 
25 A-1123-14T2

murder conviction. We discern no abuse of discretion in the 

imposition of a consecutive sentence in this matter. 

Affirmed.