## RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3135
- 15T3 STATE OF NEW JERSEY, Plainti ff
- Respondent,

v.
M.P. , Defendant
- Appellant.

______________________________

Submitted October 18, 2017

– Decided Before Judges Alvarez and Currier. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13
- 09
- 1797. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Kerry J. Salkin, Assistant Prosecutor, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

November 27, 20 172 A - 3135
- 15T3

Defendant M.P. 1 appeals from his conviction following a jury trial. He also contends that an error in the j udgment of

c onviction (JOC) requires a remand for its correction. After a

re v iew of the arguments in light of the recor d and applicable principles of law, we affirm the convicti o n , but re ma nd for a correction of the JOC. Defendant was charged in a twenty

- two count indictment with two counts of armed burglary, N.J.S.A. 2C:18
- 2 (count one and count fourteen); two counts of p ossession of a weapon for an unlawful purpose, N.J.S.A. 2C:39
- 4(d) (count two and count eighteen); two counts of unlawful possession of a weapon, N.J.S.A.
2C:39
- 5(d) (count three and count nineteen); two counts of witness tampering, N.J.S.A. 2C:28
- 5(a) (co unt four and count twenty); one count of terroristic threats, N.J.S.A. 2C:12
- 3(b) (count five); one count of criminal mischief, N.J.S.A. 2C:17
- 3(a)(1) (count six); three counts of criminal contempt, N.J.S.A. 2C:29
- 9 (count seven, count eight, and count twe nty - one); one count of armed robbery, N.J.S.A. 2C:15
- 1 (count nine); three counts of aggravated sexual assault, N.J.S.A. 2C:14
- 2(a)(count ten, count eleven, and count twelve); one count of sexual assault, N.J.S.A. 2C:14
- 2(c) (count thirteen); one count of aggravated assault, N.J.S.A. 2C:12
-

1 We use initials to protect the privacy of the individuals in this case.3 A - 3135
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1(b)(1) (count fifteen); one count of criminal restraint, N.J.S.A.
2C:13
- 2 (count sixteen); one count of terroristic threats,
N.J.S.A. 2C:12
- 3(a) (count seventeen); and one count of stalking,
N.J.S.A. 2C:12
- 10 (count twenty
- two). The criminal charges arose out of conduct that occurred in September and October 2012 . All of the charges pertained to the

same victim , defendant's wife, C.G. 2 Counts one through six
stemmed from a Sept ember break
- in incident , and counts nine through twenty relat ed to a break
- in and sexual assault in October.
The State sever ed and ultimately dismissed the contempt charges
- counts seven, eight and twenty

- one. D efendant requested separate trials for the two break
- in incidents and the stalking charges. The trial court denied d efendant's motion for a severance of counts one through six, nine through twenty, and twenty

- two. The testimony at trial revealed that s hortly before these events, defendant and C.G. had separated and defendant had moved
out of the m a rital h ome. Defendant , however , did not wish to separate or divorce and was determined to return home. C.G. testified t hat defendant broke into the marital home on September 6, 2012 , while she and th e three children were there. C.G. called the police and took the children to stay at her sister's home.

2 The parties were divorced during the pendency of the criminal case.4 A - 3135
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When C. G . returned to the home on September 15, she saw defendant in the backyard. She again reported this incident to the police , telling them that d efendant was harassing her everywhere she went . On September 26, defendant approached C. G . at their children's school. He t old her that he wanted to return to the marital home . When she told him no, C.G. stated that defendant "g[o]t into [her] face and he said I'm going to kill you . " C.G. called the police. The following day, C.G. observed defendant parked across the street from her sister's house , and s he again file d a complaint with the police . I n October , C.G . and the children were still staying at her sister's home , but they returned to the marital home in the mornings and she remai ned there during the day. On October 3, as the children were getting ready for school at home , C.G. noticed that "the [bathroom] window lock was broken" and the windo w was
open. She contacted the police and when they arrived, the officer
stated that s he thought someone may have entered through the bathroom window . According to C.G. , the officer did not conduct
a full search of the home before leaving . As she locked the door behind the officer, C.G. said defendant, who had been hiding in the house, attacked her . She
stated that defendant had a knife , pulled her hair , and banged her5 A - 3135
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head against the floor. C.G. further testified that d efendant
choked her , and t h reatened to kill her if she did not drop all of the charges against him. She also stated that he sexually
assaulted her. After C.G. agreed to drop all of the charges , d efendant took $400 out of her purse and left the home.
Defendant also testified at the trial. He admitted being at
the children's s cho o l on September 26. Although he stated he w a s emotional and angry during this interaction , he denied threatening
C.G. Defendant also did not dispute that he parked outside C.G. 's sist er 's house, but he said he wanted to speak with his wife's sister to ask her to convince C.G. to reunite with him . As to the events of October 3, defendant testified that C.G. called him that morning because she needed $400 and asked him to come to the house. When defendant arrived , he said that C.G. invited him in and expla i ned why she needed the money. She also showed defendant the bathroom window and explained that she thought

someone had attempted to break in. Defendant testified that he
asked C.G . if he could come back home and t old her he missed his family . He stated that the two of them became affectionate and eventually had consensual sexual intercourse. According to defendant , C.G. asked him for the money , but he only had some of it. He then said that C.G. cursed at him , picked up a knife , and lunged towards him ; cutting his hand and fingers6 A - 3135
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as he attempted to protect himself. They began tussling on the
floor and defendant admitted that he punch ed her once in the face while trying to defend himself . Defendant testified that after the altercation , they bandaged each other's hands . H e gave C.G. the money he had , told her he would bring the rest the next day , and then left the home. Defendant was tried before a jury and convicted of third

degree assault, a lesser included offense of the charged offense of aggravated assault, N.J.S.A. 2C:12
- 1(b)(1) ( count fifteen ) . 3 The jury also convicted defendant of fourth

- degree stalking,
N.J.S.A. 2C:12
- 10, count twenty
- two and acquitted him of the remaining seventeen counts. Defendant was sentenced to concurrent probationary terms on each conviction with the condition that he
serve a 364
- day prison term. 4 The trial court also entered a permanent restraining order , barring defendant from having any contact with his ex

- wife. On appeal, defendant raises the following arguments:
POINT I : THE COURT HAVING ALLOWED THE TWO BREAK - INS TO BE TRIED TOGETHER, IT WAS OBLIGATED TO INSTRUCT THE JURY ON THE LIMITED USE OF THE OTHER - CRIME EVIDENCE, AND SPECI FICALLY, THAT IT COULD NOT USE THE

3 The JOC indicates a conviction of count sixteen, rather than count fifteen.

4 Defendant was incarcerated pending tri a l and had 1257 days of jail credit .7 A - 3135
- 15T3 EVIDENCE OF EACH BREAK - IN AS PROOF THAT DEFENDANT IS A PERSON OF CRIMINAL CHARACTER AND THEREFORE MORE LIKELY GUILTY OF ALL OF THE CHARGED OFFENSES. (Not Raised Below)
POINT II : THE STALKING CONVICTION MUST BE REVERSED BECAUSE THE JURY DID NOT IDENTIFY THE INCIDENTS ON WHICH IT BASED THE CONVICTION, ACQUITTED DEFENDANT OF SOME OF THE PROFFERED INCIDENTS, AND WAS NOT REQUIRED TO FIND EACH INCIDENT UNANIMOUSLY. (Not Raised Below)
POINT III : THE JUDGMENT OF CONVICTION MUS T BE AMENDED BECAUSE IT INCORRECTLY STATES THE VERDICTS ON COUNTS 15 AND 16. Defendant did not raise these contentions at trial. He did not request either that the trial court provide a limiting instruction pursuant to N.J.R.E. 404(b) or a special unani mity instruction pertaining to the stalking charge. As a result, we review his arguments for plain error. See State v. Brown , 138

N.J. 481, 535 (1994). Plain error is that which is "clearly capable of producing an unjust result." State v. Whitaker , 200
N.J. 444, 465 (2009 ) (quoting R. 2:10
- 2) . Defendant argues that a Rule 404(b) limiting instruction was required at trial because the evidence presented to the jury of
several break
- ins was evidence of "other crimes . " We disagree.

It i s not necessa ry to give a Rule 404(b) limiting instruction
whe n multiple charged offenses in a single indictment are being prosecuted in a single trial.8 A - 3135
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Rule 404(b) addresses uncharged crimes, wrongs, or acts. See
State v. Rose , 206 N.J. 141, 179
- 80 (2011). "The thr eshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under
Rule 404(b), or whether it is evidence intrinsic to the charged crime[s]" before the jury at trial. Id. at 179. If evidence of an uncharged crime, wrong, or act is admitted during a trial, "limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct." I d. at 161 (emphasis added).

E vidence introduced to directly prove a charged offense , however, is "intrinsic" and not subject to Rule 404(b). Id. at
180
- 81. Here , all of the presented evidence pertained to charged crimes for which defendant was being pro secuted in this trial. There was no evidence of any "other crimes" and, therefore, no obligation to issue a limiting instruction under Rule 404(b). Moreover, t he trial judge advised the jury in his instructi o ns that there were eleven separate charged of fenses in the indictment
and that " [ e ] ach is a separate offense named in a separate count."
He stated that defendant was "entitled to have each count considered separately by the evidence which [was] relevant and material to [ th at] particular charge based on the law." See State9 A - 3135
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v. Pitts , 116 N.J. 580, 603 (1989) (stating that in the case where multiple charges are joined, it is "adequate" that the court "caution [] the jurors to deliberate separately on each of the . . . counts, and to return a judgment of conviction only if convinced that each element of the individual counts ha d been proved beyond a reasonable doubt . "). Defendant also contends that the trial court erred in failing to issue a specific unanimity instruction on t he stalking charge because the State introduced evidence of several incidents. He relies on State v. Parker , 124 N.J. 628, 633 (1991), cert. denied , 502 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992) , for his assertion that, without a special instruc tion, there was a risk that a conviction occur red as the result of different jurors concluding that defendant committed different acts. Defendant did not request this charge and , therefore , we again review it for plain error.

In Parker , a jury convicted a teacher of official misconduct against children for a series of alleged acts, including making them watch pornography, cursing at them, and insulting them. Id.
at 631
- 32. On appeal, the defendant argued that because the trial court failed to include a specific instruction on unanimity, the verdict should be vacated, as it was unclear as to which act the jury convicted her. Id. at 632
- 33. The Court disagreed, holding10 A - 3135
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that because all of the alleg ed actions subjected the victims to "abusive, humiliating conduct" which was meant to be "harmful to their physical or mental health [ , ] " the allegations were conceptually similar, and thus, did not require a specific unanimity inst ruction. Id. at 639. Here, the alleged conduct involved acts that were conceptually similar. There was sufficient evidence presented o n each incident for the jury to reasonably conclude that any of the five alleged incidents constituted a course of condu ct amounting to stalking. Defendant's a ppear ances on multiple occasions at the marital home, the children's school, and the home of C.G.' s sister

were all conceptually related acts of stalking . The series of acts alleged in this case, committed in Septem ber and October 2012, which the jury found c onstituted stalking under N.J.S.A.
2C:12
- 10, involved such similar and continuous behavior that no special unanimity instruction was required. We also note that the trial judge explained to the jury at least five times that the judgment "must be unanimous as to each charge . . . . [which] means [ that ] all [jurors] must agree if the [d] efendant is guilty or not guilty on each charge." Defendant cannot demonstrate plain error here because th e general unanimity instr uction, which the trial judge repeated and explained numerous times during the jury charge, was sufficient .11 A - 3135
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We do agree that the JOC contains an error requiring correction. It should reflect that defendant was convicted on count fifteen, not count sixtee n. We , therefore , remand to the trial court for the entry of an amended JOC . Affirm in part, remand solely for the entry of a corrected
JOC. We do not retain jurisdiction .