SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0402-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE BARKER, a/k/a

TERRENCE BARKER,

Defendant-Appellant.

_________________________

Argued May 22, 2019 – Decided July 29, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment Nos. 14-12-

0793 and 14-12-0794.

Stephen W. Kirsch, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Stephen W. Kirsch, of 

counsel and on the brief).

Lauren E. Bland, Assistant Prosecutor, argued the cause 

for respondent (Michael H. Robertson, Somerset 

County Prosecutor, attorney; Lauren E. Bland, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Following a bifurcated trial, see State v. Ragland, 105 N.J. 189, 193-95 

(1986), before a single jury, defendant Terrance Barker appeals from his 

convictions of one count of fourth-degree possession of a defaced firearm, 

N.J.S.A. 2C:39-3(d), under Indictment 14-12-0793, and two counts of seconddegree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1), under 

Indictment 14-12-0794. He argues:

POINT I

IN TWO SIGNIFICANT RESPECTS, THE JURY 

INSTRUCTION ON THE CERTAIN-PERSONS 

OFFENSES FAILED TO MEET THE STANDARD 

REQUIREMENTS OF STATE V. RAGLAND AND 

ITS PROGENY REGARDING A "SECOND TRIAL" 

FOR CERTAIN PERSONS NOT TO HAVE 

WEAPONS. 

A. THE ALVAREZ-BASED JURY 

INSTRUCTION ON NON-PROPENSITY 

THAT IS PART OF THE MODEL JURY 

INSTRUCTION WAS IMPROPERLY AND

INEXPLICABLY OMITTED FROM THE JURY 

INSTRUCTION AT THE SECOND TRIAL.

B. THE JUDGE IMPROPERLY TOLD THE 

JURORS THREE TIMES THAT THEY 

COULD SKIP MAKING A FINDING ON 

ONE OF THE ELEMENTS OF THE OFFENSE 

-- A FUNDAMENTAL VIOLATION OF 

DEFENDANT'S RIGHT TO A JURY 
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VERDICT ON ALL ELEMENTS OF A 

CRIME.

POINT II

AT THE TRIAL FOR POSSESSION OF A DEFACED 

GUN, THE STATE IMPROPERLY USED AN 

EXPERT WITNESS TO OFFER AN OPINION THAT 

THE GUN WAS DEFACED -- PART OF THE 

ULTIMATE ISSUE FOR THE JURY TO DECIDE, 

AND A MATTER CLEARLY NOT BEYOND THE 

KEN OF THE AVERAGE JUROR.

We agree that the admission of expert testimony and improper jury instructions 

warrant reversal.

In its effort to prove the elements of the defaced firearm charge,

1

the State 

introduced the testimony of a detective who was qualified in the first trial as a 

firearms and ballistics expert. Although the expert properly testified about his 

testing of the weapon and his analysis of firearms and ballistics evidence seized 

by the police, he – without objection from defense counsel – stated on several 

occasions during his direct testimony that the firearm allegedly possessed by 

defendant was defaced. While explaining to the jury the nature of a cartridge, 

 

1

 The state must prove three elements, beyond a reasonable doubt: (1) there 

was a firearm, (2) the firearm was defaced, and (3) defendant knowingly 

possessed that firearm. N.J.S.A. 2C:39-3(d); see Model Jury Charge (Criminal),

"Possession Of A Defaced Firearm (N.J.S.A. 2C:39-3d)" (rev. February 9, 

2009).
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and answering the trial judge's interjected question about the location of 

cartridges when the expert received them, the judge instructed the expert to 

continue his testimony. The expert offered the non sequitur, "So it had a defaced 

serial number." The assistant prosecutor later followed-up:

[The assistant prosecutor:] Okay. Now you indicated 

when that came in that the serial number was defaced. 

What do you mean by defaced?

[The expert:] Meaning that – I have had a chance to 

look at the pictures. Um, serial number should be –

there is minimum heights and depths for serial 

numbers. Um, after 1968 there was the Gun Control 

Act which required serial numbers on weapons. 

However, this one here the location that it had was 

defaced, meaning that you could not read the number at 

all. It was taken away and it appeared – it appears that 

some kind of either grinding device, sanding device –

some kind of device but I can see parallel scratches – is 

the best way I can describe it, and it does not appear 

that a pointed hand tool – somebody could have sat 

there and done that. Because there are two well in line 

here.

At the end of direct examination, further testimony was elicited:

[The assistant prosecutor:] And when you received that 

gun that number we see at the bottom was not visible. 

Is that accurate?

[The expert:] That's correct.

Q. And the portion that covers that hidden serial 

number is that designed to be removed or did you have 
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to – for lack of a better term, did you have to pry that 

off?

A. I had to cut and peel and/or pry to get it off.

Q. And based on your observation of that gun and your 

testing of that gun, is it your opinion that that is an 

operable firearm?

A. Yes, sir.

Q. And that it had a defaced serial number?

A. Yes, sir.

Expert testimony is admissible pursuant to Rule 702 only if the proponent

establishes "the subject matter of the testimony [is] 'beyond the ken of the 

average juror . . . .

[2]

'" J.L.G., 234 N.J. at 280 (quoting Kelly, 97 N.J. at 208); 

see N.J.R.E. 702. Matters "within the competence of the jury" are for the 

collective wisdom of the jury to assess. See State v. Sowell, 213 N.J. 89, 99 

(2013). By contrast, issues that are "beyond the understanding of the average"

juror may call for expert evidence. Ibid.

 

2

 Proponents must also show "the [expert's] field of inquiry 'must be at a state 

of the art such that an expert's testimony could be sufficiently reliable'; and . . . 

'the witness must have sufficient expertise to offer the' testimony." State v. 

J.L.G., 234 N.J. 265, 280, reconsideration denied, 235 N.J. 316 (2018) (quoting

State v. Kelly, 97 N.J. 178, 208 (1984)).
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Opining about a factual issue that is not outside the understanding of the 

average juror is improper. See Id. at 100, 104 (noting "the case law makes clear

that it is not proper to present expert testimony about straightforward but

disputed facts" and that, "even if a defendant does not object, the trial judge has

the responsibility both to exclude unnecessary, inadmissible expert testimony

and to monitor the use of hypothetical questions when the testimony is

warranted"). When such testimony is erroneously admitted, a conviction based

upon it should not stand, even under the plain or harmless error standards, unless

there is "overwhelming evidence" of guilt. See Id. at 107-08. As the Court

explained in State v. Cain, 224 N.J. 410, 426 (2016):

The jury brings a breadth of collective experience,

knowledge, and wisdom to the task. Expert testimony

is not necessary to explain to jurors the obvious. It is

not a substitute for jurors performing their traditional

function of sorting through all of the evidence and using

their common sense to make simple logical deductions.

Here, the expert's testimony intruded on the province of the jury which 

had to determine if the State proved that the firearm was defaced, an issue no 

juror needed an expert's assistance to understand. "Defaced" has a simple 

definition: "to remove, deface, cover, alter or destroy the name of the maker, 

model designation, manufacturer’s serial number or any other distinguishing 

identification mark or number on any firearm." N.J.S.A. 2C:39-1(b); see also
7

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Model Jury Charges (Criminal), "Possession Of A Defaced Firearm (N.J.S.A. 

2C:39-3(d))." Although the expert properly explained what a serial number was 

and where it is normally located, he could not offer an opinion about an ultimate 

issue in the case.

The expert's testimony was clearly capable of influencing the jury and 

producing an unjust result, requiring reversal. R. 2:10-2. "[E]xpert testimony 

coming from a law enforcement officer claiming to have superior knowledge 

and experience likely will have a profound influence on the deliberations of the 

jury." Cain, 224 N.J. at 427. We note the assistant prosecutor touted the expert's 

opinion on the specific issue of defacement during his summation:

Well, you heard from [the expert]. He's an expert in 

firearms. He's an expert in forensic ballistics. And he 

told you he is familiar with that type of gun and when 

he got it he saw that it was defaced. He saw that the 

serial number on that gun had been removed. 

The possibility of injustice engendered by the expert testimony and highlighted 

by the assistant prosecutor's closing remarks was "sufficient to raise a reasonable 

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

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

The trial judge's jury-instruction errors regarding the predicate-act 

element of the certain persons charges in the second trial also compel reversal. 
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That element, one of three the State is required to prove to obtain a certain

persons conviction,3requires the production of evidence that defendant was 

convicted for one of the crimes enumerated in the statute. See N.J.S.A. 2C:39-

7(b). 

It has long been recognized that "proof that defendant was a convicted 

felon (required in the trial of the [certain persons] charge) clearly tends to 

prejudice the jury in consideration of" not only the gun possession charge which 

was tried first, Ragland, 105 N.J. at 193, but also the certain persons charge, 

State v. Bailey, 231 N.J. 474, 484 (2018). In order to ameliorate that prejudice 

in certain persons trials, a defendant may "stipulate to the prior-conviction 

element to prevent the government from presenting evidence concerning the 

nature and type of prior conviction." State v. Brown, 180 N.J. 572, 583 (2004).

Defendant followed that course in the second trial. After the return of the 

jury's guilty verdict on the defaced firearm charge but before the judge addressed 

the jury at the start of the bifurcated trial, defense counsel at a requested sidebar 

 

3

 The other elements the State is required to prove are that, after a defendant 

was convicted for one of the crimes enumerated in the statute, the defendant 

subsequently purchased, owned, possessed or controlled a firearm. N.J.S.A. 

2C:39-7(b).
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informed the court that defendant decided to stipulate "that he is guilty of the 

predicate offenses"; the State agreed.

When such a stipulation is entered, "the jury need be instructed only that 

defendant was convicted of a predicate offense." Id. at 585. The pertinent part 

of the model jury charge in effect at the time of defendant's trial 4 provided: 

The third element the State must prove beyond a 

reasonable doubt is that defendant is a person who 

previously has been convicted of . . . the predicate 

offense. In this matter, the parties have stipulated, or 

agreed, that defendant has previously been convicted of 

. . . a predicate offense. You are instructed as follows 

with regard to the stipulation that you should treat these 

facts as being undisputed, that is, the parties agree that 

these facts are true. As with all evidence, undisputed 

facts can be accepted or rejected by the jury in reaching 

a verdict.

[Model Jury Charges (Criminal), “Certain Persons Not 

To Have Any Weapons (N.J.S.A. 2C:39-7(a))” (rev. 

June 13, 2005) (emphasis added).]

Instead of instructing the jury in accordance with the model charge, the

trial judge told the jury in what he described as "my preliminary charge":

[C]ounsel have just advised me that the defendant is 

willing to enter into a stipulation, which has been 

accepted by the State. And a stipulation means that 

 

4

 We note that the model jury charge has been updated since defendant's trial, 

but those alterations do not affect the portions discussed in this opinion. See

Model Jury Charges (Criminal), “Certain Persons Not To Have Any Weapons 

(N.J.S.A. 2C:39-7(a))” (rev. Feb. 12, 2018).
10 A-0402-17T4

there is no reason to prove a certain fact; that there is 

an agreement. And the agreement is that the defendant 

stipulates or admits that he was in fact convicted of one 

of the predicate offenses that give rise to this charge, 

meaning that there is no reason for you, as the jury, to 

make a determination as to whether there was a 

predicate offense, meaning an offense that has to be 

proven to show that he was not – that he was someone 

who is not allowed to possess a firearm.

Continuing the "preliminary" instruction prior to the start of the second trial, the 

judge, in reviewing the three elements of the certain persons crime, told the jury 

the third element, "which you will not have to make a determination on, is that 

[defendant is] a person who had this predicate offense." Finishing his 

"preliminary charge," the judge again recapped the elements and, as to the third 

element, instructed:

And, third, is the final element that has been stipulated. 

That there was a predicate conviction. If you find after 

hearing this additional testimony or proofs that the 

State has proven beyond a reasonable doubt each of 

these elements – and you need not find that as to 

element three. That has been stipulated. Then you must 

find the defendant guilty.

In his final instructions, the judge reminded the jury the third element was 

that "the defendant is a person who has previously been convicted of one of 

those predicate offenses and that has been stipulated," and "that defendant is a 
11 A-0402-17T4

person who has been convicted of a predicate offense, again, which has been 

stipulated."

Because defendant did not object to the instructions, our review is for 

plain error. R. 2:10-2. The judge's repeated instructions demonstrated a "legal 

impropriety in the [jury] 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. Hock, 54 N.J. 526, 538 (1969). 

As made clear by the model jury charge, "in a criminal case, the jury is 

not bound by stipulated facts." State v. Wesner, 372 N.J. Super. 489, 494 (App. 

Div. 2004). "A jury is free to reject any evidence, including that which is 

uncontroverted." Ibid. "[I]f facts are stipulated, the judge should not tell the 

jurors that they are 'bound' by such stipulated facts, if to do so would result in a 

directed verdict of any element of an offense charged." Id. at 491. 

We are unconvinced by the State's argument that the jury charge, viewed 

as a whole, "was proper and had no capacity to prejudice defendant." The jury 

received numerous instructions that they need not consider the third element of 

the certain persons offense because of the entered stipulation – which it had the 

right to accept or reject. Since a predicate offense is a material element, see
12 A-0402-17T4

N.J.S.A. 2C:1-14(i), and "'"erroneous instructions on material points are

presumed to" possess the capacity to unfairly prejudice the defendant.'" State v. 

Baum, 224 N.J. 147, 159 (2016) (quoting State v. Bunch, 180 N.J. 534, 541-42 

(2004)); see also Ragland, 105 N.J. at 193-95 (noting the State must prove "each 

and every material element of the crime beyond a reasonable doubt" in a 

N.J.S.A. 2C:39-7 prosecution), reversal of defendant's conviction in the second 

trial is warranted. 

Reversal is also required because the trial judge did not instruct the jury 

on its proper consideration of the predicate act. We previously held the failure 

of a trial court to instruct the jury that a "defendant's prior convictions had no 

place in its deliberations" on the possession element of the certain persons crime 

deprived the defendant of a fair trial. State v. Alvarez, 318 N.J. Super. 137, 150 

(App. Div. 1999). Our Supreme Court viewed a limiting instruction, 

"emphasizing that the jury could not use [a] defendant's prior conviction to infer 

that he more than likely possessed the weapon in the current offense" in a certain 

persons trial, as an "appropriate measure[] to ensure [a] defendant would receive 

a fair trial.

[5]

" Brown, 180 N.J. at 585.

 

5

 The trial in Brown was not bifurcated. The State dismissed the underlying 

unlawful possession of a weapon count and proceeded only on the certain 

persons charge. Brown 180 N.J. at 575.
13 A-0402-17T4

The trial judge omitted that portion of the certain persons model jury 

charge that provides: 

Normally evidence . . . of the predicate offense(s) 

is not permitted under our rules of evidence. This is 

because our rules specifically exclude evidence that a 

defendant has committed prior crimes when it is offered 

only to show that he/she has a disposition or tendency 

to do wrong and therefore must be guilty of the present 

offense. However, our rules do permit evidence of 

prior crimes when the evidence is used for some other 

purpose.

In this case, the evidence has been introduced for 

the specific purpose of establishing an element of the 

present offense. You may not use this evidence to 

decide that defendant has a tendency to commit crimes 

or that he/she is a bad person. That is, you may not 

decide that, just because the defendant has committed . 

. . prior crime[s], he/she must be guilty of the present 

crime[s]. The evidence produced by the State 

concerning . . . prior conviction[s] is to be considered 

in determining whether the State has established its 

burden of proof beyond a reasonable doubt. 

[Model Jury Charges (Criminal), “Certain Persons Not 

To Have Any Weapons (N.J.S.A. 2C:39-7(a))” (rev. 

June 13, 2005) (footnotes omitted).]

Proper limiting instructions in certain persons trials are essential safeguards of 

a defendant's right to a fair trial. See Brown, 180 N.J. at 583 (requiring limiting 

instructions in bifurcated trials since it was "mindful of the obvious potential for 

prejudice that the evidence of a prior felony conviction might have in any case").
14 A-0402-17T4

We reject the State's argument that the judge's references to the jury 

instructions in the first trial sufficiently alerted the jury to the proper use of the 

predicate act in its deliberations. During his final instructions in the second trial, 

the judge stated:

As I told you up front, an indictment is not 

evidence of the defendant's guilt on the charge. You 

may recall that I had gone through all of the principles 

that apply to you. The general principles of 

presumption of innocence, burden of proof, reasonable 

doubt. I told you about the function of the court. My 

questions, the function of you, the jury. I have 

explained several times direct and circumstantial 

evidence. The difference between the two. Credibility 

of witnesses. False in one, false in all. 

Does anyone need any of those repeated? 

Because if you do, you still have the charge from the 

last trial in chambers or in the jury deliberation room 

with you and you can refer to that. But by all means if 

you do need further explanation or me to read it again, 

just send out a note and we can do that. But those very 

same principles apply here.

None of those referenced prior jury charges related to the elements of the certain 

persons offense, particularly the third-element limiting instruction on the use of 

the predicate act. And none of the instructions given during the first trial 

provided the required guidance for such prejudicial evidence.

We also see no merit in the State's argument that there was no need for a 

limiting instruction because the predicate act was intrinsic evidence of the 
15 A-0402-17T4

certain persons offense. We need not decide if that evidence is intrinsic. As we 

held in Alvarez:

It is "undeniable that the use of prior conviction 

evidence is fraught with a high risk of prejudice." State 

v. Brunson, 132 N.J. 377, 385 (1993). Thus, whether 

the State seeks to use "other crimes" evidence for a 

purpose allowed under N.J.R.E. 404(b) (e.g. motive, 

intent, identity), or to impeach a testifying defendant, 

great care must be taken to instruct the jury that it is 

impermissible to use the prior convictions to 

demonstrate a predisposition to commit an offense. 

Brunson, 132 N.J. at 390-91; State v. Cofield, 127 N.J. 

328, 341-42 (1992); State v. Stevens, 115 N.J. 289, 309 

(1989); State v. Sands, 76 N.J. 127, 142 n.3 (1978).

[318 N.J. Super. at 149.]

The same caveat would apply to intrinsic evidence.

The failure to provide the jury with the required limiting instruction – like 

the judge's repeated instructions about the stipulation – was plain error, a "legal 

impropriety in the [jury] 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." Hock, 54 N.J. at 538. 

Reversed and remanded to the Law Division for a new trial on both 

indictments. We do not retain jurisdiction.