SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3652-18T3

 A-4134-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STERLING C. SPENCE, a/k/a

STERLING SPENCE JR.,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE BURGESS, a/k/a

MAURICE DE'ANDRE

BURGESS, MAURICE 

BURGES, and MOE,

Defendant-Appellant.

__________________________

Submitted December 7, 2020 – Decided

NOT FOR PUBLICATION WITHOUT THE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.

December 23, 2020
2

A-3652-18T3

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment Nos. 13-01-0083

and 17-08-1760.

Joseph E. Krakora, Public Defender, attorney for 

appellant Sterling C. Spence (Michele A. Adubato, 

Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for 

appellant Maurice Burgess (Frank M. Gennaro, 

Designated Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (John J. Lafferty, IV, Assistant 

Prosecutor, of counsel and on the brief).

Appellant Sterling Spence filed a pro se supplemental 

brief.

PER CURIAM

In these back-to-back appeals, which we have consolidated for purposes 

of this opinion, Sterling Spence (Spence) and Maurice Burgess (Burgess) 

(collectively defendants) appeal from multiple convictions related to the murder 

of DeVonte Molley (the victim), which took place in the course of a robbery of 

the victim at an Atlantic City hotel (the Hotel). We affirm as to both defendants.

On December 21, 2015, the victim, Burgess, and an acquaintance were staying 

in a room at the Hotel which was registered to the victim. The victim and Burgess 

sold heroin out of the room and occasionally left to facilitate sales. That night, 
3

A-3652-18T3

Burgess texted Charles Wynn1(Wynn) to ask if he knew anyone who wanted to 

purchase heroin. Wynn called Spence to ask if he personally had any drugs to sell. 

Spence contacted Burgess, who told Spence to search the dresser in the Hotel room 

to retrieve more drugs to sell. 

Spence and Wynn entered the Hotel and went to the eighth-floor stairwell so 

that the manager would not see the them moving drugs and call the police. Burgess 

let them into the Hotel room and then left to sell drugs. The victim was asleep on 

the couch when Spence and Wynn entered. Wynn went into the bedroom to check 

the dresser drawer for drugs while Spence went to the bathroom. 

As Spence exited the bathroom, he saw the victim walking towards the 

bedroom with a gun. Spence called out to the victim to let him know that he and 

Wynn were in the Hotel room, and then the victim turned towards Spence and 

pointed the gun at him. Spence slapped the gun out of the victim's hand, resulting 

in both the victim and Spence struggling for control over the gun. The gun 

discharged while the victim and Spence were struggling for the gun and Spence was 

attempting to turn the gun away. The victim fell to the ground, and both Spence and 

Wynn fled.

1 Charles Wynn is also a co-defendant. The three were tried together, however, 

Wynn is not participating in this appeal. 
4

A-3652-18T3

Police responded to the scene and found the victim, who was still alive, lying 

on the floor of the lobby with a gunshot wound. A bystander (the bystander),

attempted to administer medical assistance to the victim but was unsuccessful. An 

autopsy later determined that the victim died from a gunshot wound to the lower 

abdomen on his right side. Police interviewed the bystander within twenty-four 

hours of the incident. Police also found heroin, a digital scale, an LG cellphone, and 

a nine-millimeter shell with a "Luger" stamp in the Hotel room. Surveillance footage 

showed an individual holding the door open for Spence and Wynn and remaining in 

the room for a little over one minute. After that time, the three men quickly exited 

the room and went to the elevator, later followed by the victim, who exited the room 

holding his stomach. Utilizing a photo array and a photo from a Facebook page of 

"Mo Humble," officers were able to identify Burgess exiting the hotel room. 

On December 23, 2015, police conducted surveillance of Burgess outside a 

Motel (the Motel). Burgess exited the Motel and entered a vehicle driven by Spence. 

Police followed the vehicle to a McDonald's where they arrested the defendants. 

During the course of the arrest, a Cricket cellphone fell to Burgess's feet. Spence 

informed the police that there were two phones in the vehicle; one was his own LG 

flip phone, and the other belonged to his cousin Burgess. 
5

A-3652-18T3

Forensic examination of the cell phones revealed that on the night of 

December 21, 2015, Spence and Burgess exchanged more than twenty text 

messages. The messages contained such information as "everything still a go?" 

"Yeah, he asleep"; "What's the room number?"; "Little bit of work in the dresser. 

IDK where the rest is, but I know it's bread in here besides his pockets."; "How far?" 

"Bout to pull up."; "Search everything and make him get the rest of the bread."; "Hit 

me when on the floor." The last text message coincided with the arrival of Spence 

and Wynn to the Hotel, and Burgess letting the two into the room. 

During plea negotiations, Spence certified that he "entered the room to steal 

money and drugs . . . [when the victim] woke up waving a gun and screaming." 

Spence explained that when he "tried to disarm [the victim] . . . the gun went off," 

but denied planning to rob the victim or entering the victim's room with a weapon. 

All three defendants were tried together, and each testified. Burgess

testified that the text messages were all related to the preparation and supply of 

drugs for sale, not a scheme to rob the victim. 

Wynn testified Burgess suggested that the two could make money selling 

drugs. He further testified that when he entered, he did not have an intent to 

steal anything, but once inside, the opportunity arose. He testified that he was 
6

A-3652-18T3

unarmed and saw no gun. While he was in the bedroom checking the dresser, 

he heard a gunshot. He and Spence then ran. 

Spence testified that he went with Wynn to the room to sell drugs. He 

testified that when Burgess let him and Wynn into the room, neither was armed 

and the victim was asleep. He testified that the text messages he exchanged with 

Burgess related to drug dealing. When they arrived, the victim awoke and 

produced a gun, which fired during a struggle between he and Spence.

The jury found Spence guilty of two counts of first-degree felony murder, 

N.J.S.A. 2C:11-3(a)(3), one count of second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5(b)(1), and one count of second-degree certain person 

not to have a weapon because of a prior conviction, N.J.S.A. 2C:39-7(b)(1). The 

judge sentenced Spence to an aggregate sentence of fifty years with an 85% 

parole ineligibility and five years parole supervision pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-

6.

The jury found Burgess guilty of two counts of first-degree felony murder, 

N.J.S.A. 2C:11-3(a)(3), one count of first-degree armed robbery, N.J.S.A. 

2C:15-1(a)(3), one count of second-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b), and one count of second-degree possession of a firearm for 
7

A-3652-18T3

an unlawful purpose, N.J.S.A. 2C:39-4(a). In a separate proceeding, the judge 

found Burgess guilty of one count of second-degree certain persons not to have 

a weapon because of a prior conviction, N.J.S.A. 39-7(b). The judge sentenced

Burgess to an aggregate sentence of fifty years with 85% parole ineligibility 

pursuant to NERA, a concurrent term of eight years for unlawful possession of 

a handgun, a concurrent term of seven years for certain persons not to have 

firearms, and a concurrent term of four years for violation of a probationary 

sentence imposed in 2013. 

On appeal, Spence raises the following arguments for this court's 

consideration:

POINT I

[SPENCE'S] MULTIPLE MOTIONS FOR MISTRIAL 

ON THE BASIS OF PROSECUTORIAL 

MISCONDUCT SHOULD HAVE BEEN GRANTED 

SINCE [SPENCE'S] RIGHT TO A FAIR TRIAL WAS 

VIOLATED.

POINT II

IT WAS AN ABUSE OF DISCRETION FOR THE 

[JUDGE] TO REFUSE TO ADMIT THE 

[BYSTANDER'S] STATEMENT CONCERNING THE 

VICTIM'S DYING DECLARATION.
8

A-3652-18T3

POINT III

THE REFUSAL OF THE [JUDGE] TO ADMIT 

PHOTOGRAPHS OF THE VICTIM BRANDISHING 

FIREARMS WAS ERROR WHICH DEPRIVED 

[SPENCE] OF A FAIR TRIAL.

POINT IV

CONDUCT BY THE PROSECUTOR IN 

QUESTIONING WITNESSES AND COMMENTS HE 

MADE DURING SUMMATION WERE GROSSLY 

PREJUDICIAL AND DEPRIVED [SPENCE] OF A 

FAIR TRIAL.

POINT V

THE TRIAL [JUDGE] ERRED IN NOT INSTRUCTING 

THE JURY SUA SPONTE ON SELF-DEFENSE AS IT 

RELATED TO THE LESSER-INCLUDED OFFENSES 

OF MANSLAUGHTER[.]

POINT VI

THE DENIAL OF [SPENCE'S] MOTION TO 

SUPPRESS WAS ERROR.

POINT VII

THE FIFTY . . . YEAR NERA SENTENCE IMPOSED 

UPON [SPENCE] WAS EXCESSIVE AND SHOULD 

BE REDUCED.

POINT VIII

THE ERRORS, EITHER SINGLY OR IN THE 

AGGREGATE, DENIED [SPENCE] OF A FAIR TRIAL.
9

A-3652-18T3

In his pro se brief, Spence raises the following arguments on appeal, which 

we have renumbered:

[POINT IX]

THE TRIAL [JUDGE] VIOLATED [SPENCE'S]

SIXTH AND FOURTEENTH AMENDMENT 

RIGHTS TO HAVE A FAIR TRIAL AND DUE 

PROCESS BY ALLOWING THE STATE TO 

VIOLATE CONDITIONS OF THE BRUTON[2]

MOTION THAT WAS AGREED UPON BY ALL 

PARTIES.

[POINT X]

THE TRIAL [JUDGE] COMMITTED REVERSIBLE 

ERROR WHEN INSTRUCTING THE JURORS ON 

FLIGHT CHARGES AFTER AGREEING NOT TO 

DO SO ON BOTH SIDES, BECAUSE OF THE 

PREJUDICIAL [E]FFECTS ON THE DEFENDANTS.

On appeal, Burgess raises the following arguments for this court's 

consideration:

POINT I

[BURGESS] WAS ENTITLED TO JUDGMENTS OF 

AQUITTAL ON THE ROBBERY AND FELONY 

MURDER COUNTS.

2 Bruton v. United States, 391 U.S. 123 (1968).
10 A-3652-18T3

POINT II

THE TRIAL [JUDGE] IMPROPERLY EXCLUDED 

OTHER CRIMES EVIDENCE OFFERED BY THE 

DEFENDANTS.

POINT III

THE PROSECUTOR'S COMMENTS DURING 

SUMMATION DENIED [BURGESS] A FAIR TRIAL.

POINT IV

THE SENTENCE OF [FIFTY] YEARS IN PRISON, 

SUBJECT TO THE NO EARLY RELEASE ACT, IS 

EXCESSIVE.

I.

Defendants both maintain that several comments made by the prosecutor 

on summation denied them a fair trial, the trial judge abused her discretion by 

excluding photographs of the victim, and that their fifty-year sentences are 

manifestly excessive. We will discuss each of these overlapping arguments in 

turn.

A. 

Defendants argue that several comments made by the prosecutor during the 

State's summation denied them a fair trial. Spence specifically argues that the judge 

erred in denying his motion for mistrial on this ground. Burgess made no such 
11 A-3652-18T3

motion, but nevertheless takes issue with the same comments about defendants and 

defense counsel and an additional comment about a fact allegedly not in evidence. 

The decision to grant or deny a motion for mistrial is "within the sound 

discretion of the trial judge[.]" State v. DiRienzo, 53 N.J. 360, 383 (1969). "The 

grant of a mistrial is an extraordinary remedy to be exercised only when necessary 

'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) 

(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Therefore, this court will not 

"reverse a trial [judge's] denial of a mistrial motion absent a 'clear showing' that 'the 

defendant suffered actual harm' or that the [judge] otherwise 'abused its discretion.'" 

Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)). 

A prosecutor must ensure that their "remarks and actions [are] consistent with 

his or her duty to ensure that justice is achieved." State v. Ribalta, 277 N.J. Super. 

277, 293 (App. Div. 1994). If a prosecutor's conduct does not conform with this 

expectation, the court's inquiry does not end; such misconduct "is not ground for 

reversal of a criminal conviction unless the conduct was so egregious that it deprived 

defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). This requires 

us to consider "(1) whether defense counsel made timely and proper objections to 

the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) 

whether the [judge] ordered the remarks stricken from the record and instructed the 
12 A-3652-18T3

jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999). We presume that the 

jury followed any limiting instructions that the judge provided. State v. Loftin, 146 

N.J. 295, 390 (1996).

Our court recognizes that "[p]rosecutors are afforded considerable leeway in 

[summations] as long as their comments are reasonably related to the scope of the 

evidence." State v. Cole, 229 N.J. 430, 457 (2017) (first alteration in original)

(quoting Frost, 158 N.J. at 82). They can "strike hard blows . . . [but not] foul ones." 

State v. Echols, 199 N.J. 344, 359 (2009) (alterations in original) (quoting State v. 

Wakefield, 190 N.J. 397, 436 (2007)). It is just as much the prosecutor's duty "to 

refrain from improper methods calculated to produce a wrongful conviction as it is 

to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 

105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 

When a criminal defendant chooses to testify, they are "not simply another 

witness." State v. Daniels, 182 N.J. 80, 97 (2004). Although testifying witnesses 

are typically susceptible to attacks on their credibility, "[p]rosecutorial comment 

suggesting that a defendant tailored his testimony . . . permit[s] the prosecutor to 

punish the defendant for exercising that which the Constitution guarantees." Id. at 

98.
13 A-3652-18T3

"A tailoring allegation is a claim that a witness has adapted his testimony to

conform to other evidence that has been produced during a trial." State v. Feal, 194 

N.J. 293, 305 (2008). Claiming that a defendant tailored his or her testimony to 

conform to the facts testified by other witnesses is a violation of the defendant's 

constitutional rights as it undermines a defendant's right to a fair trial. Daniels, 182 

N.J. at 97-98. Prosecutors are prohibited from making general accusations of 

tailoring, or attacks against the defendant's credibility in the absence of any "specific 

evidentiary basis that defendant has tailored his testimony[.]" Id. at 98. A 

prosecutor, however, may make specific allegations of tailoring, but in a limited 

fashion. Id. at 98-99. "The prosecutor's comments must be based on the evidence 

in the record and the reasonable inferences drawn therefrom." Id. at 99. It is 

impermissible for a prosecutor to explicitly "reference the defendant's attendance at 

trial or his ability to hear the testimony of preceding witnesses" as the basis for 

defendant's ability to tailor his testimony. Ibid. Moreover, it is improper for a 

prosecutor to cast aspersions on defense counsel. Frost, 158 N.J. at 86; State v. 

Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008). 

Defendants take issue with three separate remarks in the State's summation 

which touch on defendants' and defense counsel's presentation and alleged tailoring 
14 A-3652-18T3

of evidence. First, defendants challenge the prosecutor's remarks that the defense 

has presented no evidence:

So there are not other messages that were left off those 

pages because they explain that this was really all about 

drugs and not about a robbery. Do you know how you can 

be confident? Because the attorneys had the exact same 

discs. They could have made any report they wanted. 

They could have picked out any test they wanted to that 

supported their arguments, that showed what this was all 

about, that showed that this was just a big 

misunderstanding and that flames actually means Bic 

lighters or whatever, but they didn't show you that because 

it doesn't exist.

Second, defendants challenge the prosecutor asserting that the defendants 

were attempting to tailor their testimony to the evidence at trial:

What you heard last week was three people who made a 

conscious choice in 2015 to participate in these events and 

are now trying to avoid the consequences. The evidence 

is not consistent with their testimony. They molded their 

testimony to try to fit the evidence that you saw two weeks 

ago. And, ultimately, the pieces that they submit through 

their testimony, through their story, just doesn't fit.

Third, defendants challenge the prosecutor's comments about defendants and 

defense counsel:

Plan B is, I suggest to you, an invention of the defendants 

and their attorneys trying to account for why these guys 

were really snooping around a sleeping man's room.

. . . . 
15 A-3652-18T3

So [Spence's counsel] said yesterday that Spence testified 

because he wanted to tell you the truth, and in a few 

minutes I think I'm going to be able to prove that that's 

quite the opposite. But, first, we know that back in 2017. 

. . Spence wrote a letter that tells a pretty different story 

than he told you on Friday. So this is another piece to the 

puzzle that they introduced that doesn't really fit. In that 

letter he mentioned nothing about selling drugs or being 

friends with [the victim] or Trenton guys or seeing [the 

victim] walk to the bedroom. Instead he says that [the 

victim] woke up waving a gun and screaming.

So why should we accept that he wanted to tell you the 

truth on Friday when two years ago he certified that that 

was the truth? Back then he admitted that all three men 

were in on this plan to sneak into the room and steal [the 

victim's] stuff. That's illegal, too. It's called a burglary, 

and that can also be the basis for felony murder.

So Spence told us on Friday that that letter wasn't true, that 

they were not there to steal. His attorney seemed to 

disagree, because they're the ones who kind of keep 

referring to Plan B. In fact, one person even said -- they 

acknowledged that maybe Plan B was actually Plan A. 

They even go so far as instructing you, I know at least two 

of the attorneys did, I don't know if three did, instructing 

you to convict of attempted theft.

Spence's defense counsel objected and moved for a mistrial. Counsel took 

issue with the prosecutor accusing defense counsel of "sinisterly characteriz[ing] 

evidence" and "trying to distort the evidence." Counsel also objected to the 

prosecutor attempting to "put[] the burden on the defense, saying the defense had 

two years to present this evidence that would have helped their case, knowing that 
16 A-3652-18T3

[defendants] don't have a constitutional obligation to do anything." Finally, counsel

argued against the prosecutor "say[ing] that . . . these stories were the invention of 

the defendants and their attorneys, implying that the defense attorneys deliberately 

commit[ted] legal malpractice, enter[ed] into unethical conduct, and coached their 

defendants to provide testimony that isn't true." The judge denied the motion and 

stated that she would instruct the jury that "they're only to consider the . . . testimony 

and the evidence and the law that [she] give[s] them." 

Defendants also contend the prosecutor made improper comments regarding 

the trajectory of the bullet that killed the victim. Defendants maintain that since the 

medical examiner offered no opinion on the trajectory of the bullet, the prosecutor's 

opinion as to how it could or could not have been fired is an improper expert opinion, 

which was not based upon the facts in evidence. See State v. Papasavvas, 163 N.J. 

565, 616 (2000) (noting that while a prosecutor may present to the jury the State's 

theory of the case, the presentation will constitute prosecutorial misconduct if it 

draws reasonable inferences from evidence not adduced at trial). 

The medical examiner described the path of the bullet as follows: 

The bullet traveled right to left, front to back and 

downwards. It passed through the abdominal cavity. It 

did not strike any of the intestines or organs of the 

abdomen. It passed through a large artery and vein called 

the iliac artery and vein. The main artery in the body is 

the aorta -- that's the largest one. It branches as it goes 
17 A-3652-18T3

down to the right and left iliac arteries, one goes to the 

right side, one goes to the left. And it passed through the 

left iliac artery and vein and then I followed the path up 

further and I found a jacketed bullet from the tissues near 

the top of the femur, the thigh bone, on the left. 

The prosecutor commented the following:

And trust [the victim]. Trust his body. His body contains 

evidence that he was shot from somewhat of a distance and 

from above. His body, his wound, is evidence that 

[defendants'] version and the defense's version is not 

physically possible. And he can't be here to testify and tell 

us himself, but that wound you can take as evidence.

Defense attorneys can say whatever they want, and they 

have, about the way that [the victim] chose to make his 

way in the world, but his body can't lie. It can't exaggerate. 

The wound can't downplay things or exaggerate things. 

It's physical evidence. It's evidence that I submit will 

leave you firmly convinced that this was not just some big 

misunderstanding. It's evidence that will leave you firmly 

convinced that these three men knew exactly what they 

were doing that night. They knew the risks involved, and 

they did it anyway. Evidence that will leave you firmly 

convinced that these three men are responsible for that one 

gun, that one bullet, this one death. Choices and 

consequences.

Spence's defense counsel again objected to the prosecutor "offer[ing] expert 

testimony in his closing" which was not borne out by examination or crossexamination, suggesting that the "shooting could not have happened in the way that 

the defendant said it did," and moved for a mistrial. The judge provided the jury a 
18 A-3652-18T3

limiting instruction "as to some of the items that [defense counsel] raised with 

respect to expert testimony." 

None of the above passages rise to the level of prosecutorial misconduct that 

could not be cured with a proper limiting instruction. The comments about defense 

counsel tailoring are improper, as the prosecutor may not attack defense counsel's

credibility in this manner. See Frost, 158 N.J. at 86. However, because the 

prosecutor only directly a single comment towards counsel, a limiting instruction 

could cure any perceived prejudice. The comments about defendants' tailoring also 

are not fatal here. The prosecutor did not make a generic tailoring accusation, nor 

did he allege that defendants tailored their testimony based on their ability to hear 

preceding witnesses' testimony at trial. See Daniels, 182 N.J. at 99. 

The judge provided a limiting instruction that addressed each of the allegedly 

improper statements:

Now you've heard all of the evidence, and I do -- I want to 

give you a couple instructions right now based upon what 

you just heard in the State's summation. I'm going to ask 

you and tell you that you need to disregard any comments 

relative to the defense attorneys. So, in other words, any 

comments that were made as to the preparation by the 

defense attorneys as to their client should not pay -- or you 

should not give that any consideration in your 

deliberations. That should go out of your mind and that's 

not to play any part in your deliberations.
19 A-3652-18T3

You can consider the defendants themselves, their 

testimony and their credibility and what weight you give 

that is something that the jury can decide. But, again, any 

comments made about the attorneys themselves doesn't 

play any part in your deliberations. Does everybody 

understand that? Yes. Okay.

Also, you heard comments in summation that the defense 

did not show you certain things, whether it was video or 

otherwise. I have to tell you and I'm going to give you a 

complete instruction on this, but I just want to tell you 

right now so it's fresh in your mind that the defendants do 

not have any obligation to present any proof as to their 

innocence. That burden is on the State. They have to 

prove each and every element of the charged beyond a 

reasonable doubt. That never transfers to the defendants, 

so they don't have any obligation. And, again, I'm going 

to give you a complete instruction on that, but does 

everybody understand that?

We presume that the jury followed the limiting instructions and did not 

consider the statements made by the prosecutor for any improper purpose. Loftin, 

146 N.J. at 360. The statements do not amount to prosecutorial misconduct, defense 

counsel made timely objections to each statement, and the judge provided adequate 

limiting instructions to remove any potential prejudice. A mistrial was therefore not 

warranted, and the judge did not err in denying Spence's motion. It follows that 

Burgess was not denied a fair trial based on these same statements. 
20 A-3652-18T3

Burgess also maintains that the prosecutor's reference to Urban Dictionary3to 

define the term "flame" during summation was improper. He specifically alleges 

that the definition was a fact not in evidence. In reference to one of Burgess's text 

messages, the prosecutor noted that defendants claimed that "flames" referred to 

heroin, and then quoted from Urban Dictionary, which he claimed defined the term 

"flames" as a handgun. The record reveals—and the State does not dispute—that it 

was not a fact in evidence. The State maintains, however, that it was only responding 

to an argument made by Burgess's defense counsel during summation. 

The judge noted that because defense counsel had used a different Urban 

Dictionary definition, despite it not being a fact in evidence, it was only fair to allow 

the State to respond. The judge emphasized that the comments were not evidence. 

The judge reiterated, upon defense counsel's request for a limiting instruction, "I 

gave a limiting instruction that [the jury is] not to consider anything that wasn’t in 

evidence so . . . I've done that." Such instruction was sufficient to remove any 

prejudice, especially where both parties were given the opportunity to speak on the 

same fact. See State v. Murray, 338 N.J. Super. 80, 88 (App. Div. 2001) (noting that 

courts should consider "the context in which the challenged [comments] were made, 

3 Urban Dictionary is a crowd-sourced, unpublished online dictionary for slang 

words and phrases. 
21 A-3652-18T3

determining whether the remarks were a measured response to defendant's 

summation made in an attempt to 'right the scale'"). Burgess was not denied a fair 

trial on this ground.

B. 

We next address defendants' argument that the trial judge erred by excluding

photographs of the victim holding firearms. Defendants argue that the victim's 

potential access to firearms was material and relevant to the defense theory that the 

victim was armed at the time of the incident. 

"A trial [judge]'s evidentiary rulings are 'entitled to deference absent a 

showing of an abuse of discretion[.]" State v. Brown, 170 N.J. 138, 147 (2001) 

(quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We may not "substitute [our]

own judgement for that of the trial [judge], unless the trial [judge]'s ruling was so 

wide of the mark that a manifest denial of justice resulted." Ibid. (quoting Marrero, 

148 N.J. at 484).

Evidence is relevant if it has "a tendency in reason to prove or disprove any 

fact of consequence to the determination of the action." N.J.R.E. 401. In making 

this determination, the trial judge "should focus on the logical connection between 

the proffered evidence and a fact in issue," and "whether the [evidence offered] 

'renders the desired inference more probable than it would be without the evidence.'" 
22 A-3652-18T3

State v. G.V., 162 N.J. 252, 263 (2000) (alteration in original) (quoting State v. 

Davis, 96 N.J. 611, 619 (1984)).

Evidence that is relevant may still be excluded. N.J.R.E. 403 permits a trial 

judge to exclude evidence "if its probative value is substantially outweighed by the 

risk of: (a) [u]ndue prejudice, confusion of issues, or misleading the jury; or (b) 

[u]ndue delay, waste of time, or needless presentation of cumulative evidence." A 

trial judge "has broad discretion to exclude evidence as unduly prejudicial pursuant 

to N.J.R.E. 403." State v. Jackson, 243 N.J. 52, 65 (2020) (quoting State v. 

Nantambu, 221 N.J. 390, 402 (2015)). 

The trial judge initially examined the two photographs and noted that, acting 

as a layperson, she "[could not] tell what portion of the rifle [was visible]" or "if it 

is even a rifle in either photograph." Although defense counsel asserted that the 

photographs could be authenticated by Officer Yeates, who extracted the pictures 

from the victim's phone, the judge was still concerned that he would be unable to tell 

whether the photograph was taken by the victim himself or by another person in the 

room. The judge noted that in one photograph she could see one hand, suggesting 

that the photo may have been taken by the victim, but the other photograph she did 

not see either hand, making it unclear whether the victim or someone else took the 

photograph. 
23 A-3652-18T3

Defense counsel also explained that because the photographs of the victim 

allegedly holding firearms did not have a timestamp, the November 26, 2015 

timestamp provided was an estimated date based on those photographs' vicinity to 

other photographs found on the victim's phone. Based on the alleged timestamp, 

these photographs are nearly a month old, and do not depict a handgun the defendant 

alleged that the victim had on his person the day of the incident. 

The judge explained her N.J.R.E. 403 analysis, and repeated her concerns that 

the photographs could not be properly authenticated, and even if they could, they 

may confuse the jury:

Clearly, again, as has been argued by the defense, they do 

not know the date, again, of the photograph. They do not 

know who took the photograph. Even if it were to come 

in and they could authenticate it and there was a 

foundation laid, there's no other information that the jury 

is going to be provided. They're going to be given two 

photographs purporting to be the victim holding some type 

of item, possibly two different items, and that's really all 

they're going to know.

For these reasons, the trial judge excluded the photographs, determining that 

"even the relevancy and probative value is substantially outweighed by the risk of 

undue prejudice, but more so confusion of issues and misleading the jury." As such, 

we conclude that the trial judge did not abuse her discretion by excluding the 

photographs. 
24 A-3652-18T3

C. 

We now address defendants' argument that their sentences are manifestly 

excessive. The judge sentenced both Spence and Burgess to fifty-year aggregate 

sentences subject to NERA. In addition to his excessive sentence argument, Spence 

maintains that the judge erred by not considering four mitigating factors when 

imposing his sentence and that she wrongly stated that she was "required to impose 

a sentence at the higher end of the sentencing range." Burgess also contends that 

trial judge erred by failing to consider the real-time consequences of NERA when 

imposing his sentence. 

We review the trial judge's sentencing decision for an abuse of discretion. 

State v. Blackmon, 202 N.J. 283, 297 (2010). We will not disturb a trial judge's 

sentence unless it is manifestly excessive or unduly punitive. State v. O'Donnell, 

117 N.J. 210, 215-16 (1989). We will consider "whether the trial [judge] . . . made 

findings of fact that are grounded in competent, reasonably credible evidence and 

whether 'the factfinder [has] appl[ied] correct legal principles in exercising its 

discretion.'" Blackmon, 202 N.J. at 297 (third and fourth alterations in original) 

(quoting State v. Roth, 95 N.J. 334, 363 (1984)).

In reviewing a sentence, "[a]n appellate court is not to substitute its assessment 

of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 
25 A-3652-18T3

200 N.J. 601, 608 (2010). We will not set aside a sentence unless "(1) the sentencing 

guidelines were violated; (2) the findings of aggravating and mitigating factors were 

not 'based upon competent credible evidence in the record;' or (3) 'the application of 

the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. 

Bolvito, 217 N.J. 221, 228 (2014) (quoting Roth, 95 N.J. at 364-65).

A trial judge "must identify any relevant aggravating and mitigating factors 

set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 

N.J. 49, 64 (2014). The trial judge must then "determine which factors are supported 

by a preponderance of evidence, balance the relevant factors, and explain how [her 

or she] arrives at the appropriate sentence." O'Donnell, 117 N.J. at 215. The findings 

supporting these factors "must be supported by competent, credible evidence in the 

record." Case, 220 N.J. at 64.

As to Spence, the trial judge reviewed the record and found three aggravating 

factors and no mitigating factors. The trial judge found aggravating factors three, 

six, and nine, and gave significant weight to each. As to factor three, the trial judge 

determined that Spence would likely commit another offense based on his "prior 

record and his escalating violent lawlessness[.]" As to factor six, the trial judge 

determined that "while [Spence's criminal record is] not lengthy, [it] does include a 

prior gun related offense, as well as a CDS conviction." As to factor nine, the trial 
26 A-3652-18T3

judge determined that "[t]here is a very strong need to deter [Spence] specifically . . 

. from violating the law." This was because "[Spence] has now been convicted of 

the most serious offense in the criminal code . . . . He needs to be deterred and others 

need to know that violation of the law that results in the taking of a life, any life, will 

meet with serious consequences and a serious sentence." 

The trial judge did consider Spence's request that mitigating factor one apply, 

but she declined to do so because "[t]he evidence at trial confirmed, and the jury 

found that [Spence] undertook to rob the victim and that he possessed a gun during 

the commission of that crime." This fact shows that to some extent, Spence

contemplated that some harm would come from his actions. 

Spence argues that the trial judge should have considered mitigating factors 

three and four during sentencing based on victim "brandish[ing] a gun at him and 

[being] shot during a struggle" and that none of the aggravating factors warranted 

"great weight." But the trial judge reviewed the record and found that none of the 

mitigating factors applied to Spence's circumstances, and this court may not 

"substitute [our] assessment of aggravating and mitigating factors for that of the trial 

court." Bieniek, 200 N.J. at 608. It does not appear that the trial judge felt that she 

was "required" to impose an upper-range sentence, but rather she was explaining 

that based on finding only aggravating factors and no mitigating factors, it logically 
27 A-3652-18T3

followed that she would impose a sentence in the upper range. The trial judge did 

not impose an excessive sentence. 

As to Burgess, the trial judge reviewed the record and found three aggravating 

factors and no mitigating factors. The trial judge noted that Burgess had a "prior 

record . . . and escalating lawlessness [which] shows that given the opportunity he 

would reoffend," had a prior history which makes this his "third offense for gun 

possession", and lesser forms of punishment have failed to deter him. Burgess was 

arrested multiple times as a juvenile, including for robbery and unlawful possession 

of a firearm, for which he served three years in a juvenile detention facility. The 

trial judge also noted that Burgess had three convictions as an adult, including one 

for third-degree burglary for which he received three years' probation. While on 

probation, Burgess incurred new charges.

At sentencing, Burgess argued that the trial judge should have considered 

numerous mitigating factors, such as the fact that he did not intend to cause or 

threaten harm, that he did not contemplate serious harm, that he was provoked, and 

that he was not aware of his conduct. The trial judge rejected considering any of 

these mitigating factors because the jury found that Burgess intended to help rob the 

victim, there was "absolutely no evidence" of provocation and "absolutely nothing 
28 A-3652-18T3

in the record to [excuse or justify defendant's conduct]," and not being aware of one's 

conduct because of age was not applicable to Burgess's situation.

There is no reason to second-guess the trial judge's application of the 

sentencing factors as to Burgess. Nor can it reasonably be said that the trial judge 

failed to consider "the real-time consequences of [NERA]" when imposing "nearly 

a life sentence." The trial judge considered the consequences before sentencing 

Burgess and the sentence imposed is not excessive. 

II. 

Spence raises four additional separate arguments on appeal. These 

include that the trial judge erred by denying two additional motions for mistrial 

based on comments made by a witness and the prosecutor, that the trial judge 

abused her discretion by declining to admit the bystander's statement to the 

police, that the trial judge erred in not sua sponte instructed the jury on selfdefense, and that the trial judge erred in denying his motion to suppress 

cellphone evidence. We address these arguments in turn. 

A. 

We first address Spence's argument that the trial judge erred by denying 

two other motions for a mistrial based on statements made by a witness and by 

the prosecutor.
29 A-3652-18T3

First, Spence argues that a statement made by Detective Jason Dorn 

(Dorn) during his counsel's cross-examination regarding the fact that Dorn 

believed Spence invoked his right remain silent during an interview warranted 

a mistrial. The examination proceeded as follows:

[SPENCE'S COUNSEL]: Well, after that interview you 

indicated on direct that [R.S.] was let go, correct?

[DETECTIVE DORN]: He -- [R.S.] was let go; that's 

correct.

[SPENCE'S COUNSEL]: Okay. . . . Spence was also let 

go that day, correct?

[DETECTIVE DORN]: Not that I remember. You know, 

I didn't have much interaction with . . . Spence. I believe 

he invoked his right --

. . . . 

[SPENCE'S COUNSEL]: Judge, I make a motion for a 

mistrial. That was not in response to my question and he 

just said that . . . Spence invoked his rights. It's obvious to 

the jury now that he didn't speak to the police, so -- and I 

think that's -- obviously, I think it's -- I can't think of the 

name of the case, but basically, I mean, that's something 

that the jury shouldn't have been told.

THE COURT: I agree. They shouldn't, either, but --

[PROSECUTOR]: But, also, counsel did open the door 

and counsel did pursue a follow-up question after the 

witness said that he didn't have much interaction with . . . 
30 A-3652-18T3

Spence. I don't think (indiscernible) instruction, 

especially because he barely got it out.

. . . . 

[SPENCE'S COUNSEL]: I am making a motion for a

mistrial.

THE COURT: Okay. All right. The only thing I'm going 

to do at this point is I'm going to give a limiting instruction, 

so I can hear you as to what you want me, if anything, to 

say. I know what I'm going to kind of say, but is there 

anything in particular from the defense's team, since I'm 

going to deny your motion for a mistrial at this point.

After discussion as to the content of the instruction and whether to instruct the 

jury at that moment or whether to wait until the end of the presentation of the 

case, the parties agreed that the jury should be instructed at that moment. The 

trial judge then instructed the jury:

I give limiting instructions or instructions as to what 

you should disregard based upon an objection or 

statement from a witness. In this case there was a 

response from the detective to or a comment by the 

detective in response to a question asked by [Spence's

counsel], and that last question dealt with whether or 

not he spoke with the defendant. Any answer he gave 

to that I want you to disregard. It is not proper for you 

to consider. Any answer that he may have given to that 

response, anything that you may have heard, you should 

put it out of your mind. It's not to play any part in your 

deliberations in this case at any time. It's not for your 

consideration.
31 A-3652-18T3

Spence's counsel made a timely objection, and both parties quickly 

recognized the error made by Dorn in mentioning that Spence may have invoked 

his right to remain silent. The judge promptly provided a limiting instruction to 

the jury to ensure that they do not consider the statements during their decisionmaking. The trial judge did not abuse her discretion by denying the motion for 

a mistrial based on this statement.

Next, Spence argues that the prosecutor's question to him regarding 

whether he told anyone his version of events in 2015 warrants a mistrial. The 

examination proceeded as follows:

[PROSECUTOR]: Have you discussed your testimony 

with your co-defendants?

[SPENCE]: No, I can't because you have us on keep 

separate so we can't get next to each other.

[PROSECUTOR]: In 2017 -- excuse me. Now the story 

that you told [Spence's defense counsel] today, you didn't 

tell that to anyone in 2015, correct?

[SPENCE'S COUNSEL]: Objection, Judge. Can we 

approach?

. . . .

[SPENCE'S COUNSEL]: My motion for a mistrial, he 

just asked whether or not he told anybody. The jury 

already knows that he can assert his rights. But my prior 

motion for a mistrial, once he's been read his Miranda

rights, he can't be asked questions about whether or not he 
32 A-3652-18T3

gave a particular story and it violates his right to remain 

silent. Again, it's an audio tape, so I'm going to have to 

hook it up. I know you can't ask questions about 

somebody telling a different story if they asserted their 

Fifth Amendment rights after they've read the Miranda

rights to them by that point.

The parties agreed that the prosecutor's question was improper, and after the

judge denied defendant's motion for a mistrial, she gave the following limiting 

instruction before proceeding:

All right. Members of the jury, I'm going to give you 

another instruction. I'm going to direct that you're to 

disregard the last question, not to speculate as to what 

that question meant or what the response might have 

been. And so just disregard that, put it out of your mind 

as if it never happened. Can everybody do that and 

make sure it doesn't play any part in your deliberations 

in this case? Can everybody do that? Yes. Okay.

Spence's counsel made a timely objection, the parties quickly recognized 

the error, and the judge gave the jury a limiting instruction. The error was not 

such egregious prosecutorial misconduct as to warrant granting Spence's motion 

for a mistrial, and the trial judge did not abuse her discretion by denying the 

motion.

B. 

Next, we turn to Spence's argument that the trial judge abused her 

discretion by refusing to admit a recorded statement made by the bystander 
33 A-3652-18T3

hours after the incident. Spence asserts that the statement provided by the 

bystander qualifies as a dying declaration and excited utterance and should 

therefore be admitted. 

As stated previously, "a trial [judge]'s evidentiary rulings are 'entitled to 

deference absent a showing of an abuse of discretion[.]" Brown, 170 N.J. at 147

(quoting Marrero, 148 N.J. at 484). We may not "substitute our own judgement for 

that of the trial [judge], unless the trial [judge]'s ruling was so wide of the mark that 

a manifest denial of justice resulted." Ibid. (quoting Marrero, 148 N.J. at 484).

"Hearsay is an out-of-court statement offered 'to prove the truth of the matter 

asserted' therein." State v. R.K., 220 N.J. 444, 459 (2015) (quoting N.J.R.E. 801). 

Hearsay is not admissible unless there is an exception provided within the rules of 

evidence or other laws. N.J.R.E. 802. Hearsay within hearsay may be admitted "if 

each part of the combined statement conforms with an exception to the rule." 

N.J.R.E. 805.

The excited utterance exception permits admission of "[a] statement relating 

to a startling event or condition made while the declarant was under the stress of the 

excitement caused by the event or condition and without opportunity to deliberate 

or fabricate." N.J.R.E. 803(c)(2). Because there is no definitive interval of time that 

is considered sufficient in length for deliberation or fabrication, a trial judge "must 
34 A-3652-18T3

use a fact-specific analysis to determine whether a statement made after a specific 

period of time will qualify as an excited utterance." State v. Long, 173 N.J. 138, 159

(2002). Although "the hearsay statement need not be contemporaneous with the 

startling event," there must be a showing that "the interval was brief and the excited 

state of the declarant continued." Ibid. (quoting State v. Clark, 347 N.J. Super. 497, 

506 (App. Div. 2002)). A trial judge must also consider whether there has been 

opportunity to deliberate or fabricate by considering "the element of time, the 

circumstances of the incident, the mental and physical condition of the declarant, 

and the nature of the utterance." Ibid. (quoting State v. Williams, 106 N.J. Super. 

170, 172 (App. Div. 1969)). 

The dying declaration exception permits admission in a criminal proceeding 

of "a statement made by a victim unavailable as a witness . . . if it was made 

voluntarily and in good faith and while the declarant believed in the imminence of 

the declarant's impending death." N.J.R.E. 804(b)(2).

The trial judge first recognized that the bystander's statement involved 

"hearsay within hearsay. Everybody agrees with that." The judge noted that the 

victim's statement did not "directly relate[] to the event itself, but his concerns about 

police locating potentially something illegal, or illegal items in his room." As a 

result, the judge explained that "the nature of the utterance itself . . . seems to be 
35 A-3652-18T3

something other than what the exception to [N.J.R.E.] 803(c)(2) provides." But even 

if that was not the case, the judge explained that the bystander's statement to the 

police could not fall within the excited utterance exception. The judge explained 

that during his video statement, the bystander appeared "relatively calm in light of 

the events that he did observe" and "[h]is thoughts appear[ed] to be collected and 

ma[de] sense given the questions that were asked." The bystander appeared

"comfortable . . . and [did not] seem at all to be what [the trial judge] would observe 

as being excited in any form of the matter." The trial judge explained noted that she 

"d[id] not see that [the bystander was] in any way what we would describe as 

shocked and uttering things about the event. His thoughts, again, seem to be 

cohesive."

Further, the trial judge noted that the bystander's statement occurred 

"[seventeen] or [eighteen] hours later," which would have given him "time to 

deliberate, maybe not fabricate, but . . . have an opportunity to deliberate about the 

events before he was interviewed at a set time." Combined with the bystander's 

"uncertainty" and "poor recollection" of the situation, the trial judge determined that 

the bystander's statement was unreliable and "the probative value . . . [was]

outweighed by the risk of confusion or misleading the jury as to the facts of th[e] 
36 A-3652-18T3

case." The trial judge did not abuse her discretion by refusing to admit the 

bystander's statement.

C. 

We now turn to Spence's argument that the trial judge committed plain 

error by not sua sponte instructing the jury on self-defense. 

"'[C]lear and correct jury instructions are essential for a fair trial' because the 

jury charge 'is a road map to guide the jury, and without an appropriate charge a jury 

can take a wrong turn in its deliberations.'" State v. Martini, 187 N.J. 469, 477 (2006) 

(alteration in original) (quoting State v. Koskovich, 168 N.J. 488, 507-08 (2001)). 

We "review [a] trial [judge's] decision not to give [a self-defense] instruction under 

a plain error standard, in accordance with Rule 2:10-2." State v. Galicia, 210 N.J. 

364, 389 (2012). 

Self-defense is an affirmative defense, which provides that "the use of force 

upon or toward another person is justifiable when the actor reasonably believes that 

such force is immediately necessary for the purpose of protecting himself against the 

use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-

4(a). "A trial judge must sua sponte charge self-defense in the absence of a request 

. . . 'if there exists evidence in either the State's or the defendant's case sufficient to 

provide a "rational basis" for its applicability.'" Galicia, 210 N.J. at 390 (quoting 
37 A-3652-18T3

State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div. 2006)). Evidence from either 

the State or the defendant's case "must 'clearly indicate[]' such a defense to call for 

such an instruction in the absence of a request to charge." Id. at 390-91 (quoting 

State v. Perry, 124 N.J. 128, 161 (1991)). The trial judge is not required "'to 

meticulously sift through the entire record . . . to see if some combination of facts 

and inferences might rationally sustain' a lesser charge[.]" State v. Alexander, 233 

N.J. 132, 143 (2018) (alteration in original) (quoting State v. Funderburg, 225 N.J. 

66, 79 (2016)).

Spence testified that when he saw the victim walking into the room with 

the gun and pointed the gun at him, he "tried to slap the gun away from [the 

victim] to get it out of [his] face[.]" Spence testified that after he successfully 

slapped the gun away from the victim and onto the floor, the victim attempted 

to retrieve the gun. Spence and the victim began to "tussle" and Spence "tried 

to turn the gun away from him and it went off." Spence explained that 

throughout the altercation he did not obtain possession of the gun. Although 

Spence testified that he feared for his life, it does not appear that he intended to

fire the handgun for the purpose of protecting himself as required by the selfdefense statute. The testimony does not clearly indicate that a self-defense 
38 A-3652-18T3

charge was warranted absent a request by the defense. As a result, the trial judge 

did not err by not sua sponte instructing the jury on self-defense.

D. 

Finally, we address Spence's argument that the trial judge erred in denying 

his motion to suppress the cellphone seized from his car. He argues that there 

was no probable cause to seize the cellphone, and that the trial judge wrongfully 

denied his request for a Franks4 hearing. 

Our review of a determination of a motion to suppress is limited, and we defer 

to the "motion judge's factual findings so long as sufficient credible evidence in the 

record supports those findings." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing 

State v. Elders, 192 N.J. 224, 243-44 (2007)). In other words, we will defer to a trial 

judge's determination unless it is "'clearly mistaken' or 'so wide of the mark' that the 

interests of justice require appellate intervention." Elders, 192 N.J. at 245. We will 

not disturb the findings even if an independent review of the record may lead to a 

different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). 

We review a trial judge's decision regarding the need for a Franks hearing for 

an abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 

2009). A trial judge abuses his or her discretion when his or her "decision [is] made 

4 Franks v. Delaware, 438 U.S. 154 (1978).
39 A-3652-18T3

without a rational explanation, inexplicably depart[s] from established policies, or 

rest[s] on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) 

(citing Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

In denying Spence's motion to suppress, the trial judge first noted that "the 

search and communications data warrants . . . were issued and executed consistent 

with" both the Fourth Amendment of the United States Constitution, as well as 

Article I, Paragraph 7 of the New Jersey Constitution. Next, the trial judge noted 

that "[t]he seizure of the phone was proper" because the police had already identified 

Burgess as a suspect and Spence informed the police that the cellphone belonged to 

his cousin Burgess. 

The trial judge also found that the magistrate judge who issued the search 

warrant was not misled by the affidavits provided which stated that Burgess was in 

"possession" of two cellphones, and therefore no Franks hearing was necessary. The 

trial judge noted that while the use of the word "possession" may have been 

"unartful[]," it could have reasonably been understood that Burgess had constructive 

possession over the two cellphones. The trial judge determined that "the affidavit, 

though not detailed, was not misleading" as a result of the use of "possession." Nor 

did the use of the word "cousin" cast aspersions on the issuance of the search 

warrant; as the trial judge explained, "considering the totality of the circumstances, 
40 A-3652-18T3

it was reasonable for police to believe that the phone indeed belonged to . . . Burgess" 

because "[Spence] had just recently been in the car with . . . Burgess, who he earlier 

referred to as his cousin." 

The trial judge did not abuse her discretion by declining to suppress the 

cellphone, and the trial judge based her decision to deny a Franks hearing on a 

rational explanation without any departures from established policies or applications 

of impermissible bases.

III.

We now turn to Burgess's contention that he was entitled to judgments of 

acquittal on the robbery and felony murder counts. 

A judge shall enter an order for a judgment of acquittal only if "the evidence 

is insufficient to warrant a conviction." R. 3:18-1. Our Supreme Court articulated 

the standard to determine a motion for judgment of acquittal in State v. Reyes, 50 

N.J. 454 (1967): 

[T]he question the trial judge must determine is whether, 

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

evidence direct or circumstantial, and giving the State the 

benefit of all its favorable testimony as well as all of the 

favorable inferences which reasonably could be drawn 

therefrom, a reasonable jury could find guilt of the charge 

beyond a reasonable doubt.

[Id. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 90-91 

(1961)).]
41 A-3652-18T3

That standard applies regardless of whether the motion was made during trial under 

Rule 3:18-1, or after the jury returned a verdict under Rule 3:18-2. State v. Tindell, 

417 N.J. Super. 530, 548-49 (App. Div. 2011). If the motion was made at the close 

of the State's case, we do not consider any evidence adduced in the defendant's case. 

Reyes, 50 N.J. at 459; State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div. 1991).

Under Rule 3:18-1, this court "'is not concerned with the worth, nature or 

extent (beyond a scintilla) of the evidence, but only with its existence, viewed most 

favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State 

v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). "If the evidence satisfies that 

standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). 

We review the judge's denial of defendant's motion for judgment of acquittal de 

novo, State v. Dekowski, 218 N.J. 596, 608 (2014), and conduct an independent 

assessment of the evidence, applying the same standard as the trial judge. State v. 

Williams, 218 N.J. 576, 593-94 (2014). 

At the end of the State's case, Burgess moved for judgments of acquittal, 

arguing that the State had failed to prove he participated in a burglary or robbery, 

and therefore could not be guilty of felony murder. The judge denied the motion 

and the jury ultimately acquitted Burgess of burglary. Defendant now challenges

the robbery count as a predicate offense to felony murder. 
42 A-3652-18T3

To convict a defendant of robbery, the State must prove that in the course of 

committing a theft, defendant:

(1) Inflicts bodily injury or uses force upon another; or 

(2) Threatens another with or purposely puts him in fear 

of immediate bodily injury; or 

(3) Commits or threats immediately to commit any crime 

of the first or second degree. 

[N.J.S.A. 2C:15-1.]

In ruling on the motion, the trial judge cited the correct standard: 

This motion is made under Rule 3:18-1, which is a motion 

for judgment of acquittal. The case law as cited is State v. 

Reyes, and the broad test for determination of such an 

application is whether the evidence at this point is 

sufficient to warrant a conviction of the charge or charges 

involved. More specifically, the question the trial judge 

must determine is whether viewing the State's evidence in 

its entirety, direct and/or circumstantial, and giving the 

State the benefit of all favorable testimony, as well as all 

of the favorable inferences which reasonably could be 

drawn therefrom, a reasonable juror could find guilt of the 

charges beyond a reasonable doubt.

The trial judge accepted the prosecutor's explanation on how he put forth evidence: 

[Burgess's text] messages indicate that a robbery was 

planned, and that all three people were aware of that. The 

text messages obviously do not use the word rob and do 

not use the word gun. You wouldn't expect them to. But 

the context makes that intent clear. . . .We heard really the 

evidence of a robbery [which] is in many ways evidence 

of the burglary. [The victim] is asleep, [defendant] can just 

walk out. It sure doesn't sound like an invitation . . . 

particularly one that the actual resident of the room is in 
43 A-3652-18T3

on. And so a robbery in this instance is a burglary, but 

there is certainly no indication that these individuals were 

invited . . . people don't hide in the stairwell when they're 

invited. People knock on the door. People don't act [in 

the way that] defendant did on [surveillance] video.

The trial judge then determined: 

[C]learly there is evidence now to support the State's 

position, again, viewed most favorably to them based upon 

not just the text messages but the testimony from the 

witnesses, the detective, the lay witnesses, as well as the 

expert witnesses as to the location of the phones, and 

couple that with the video that's been shown to the jury, 

the [c]ourt does not find that . . . the defense . . . has not 

met its burden with respect to Rule 3:18-1. 

We conclude there exists sufficient evidence in the record from which a

reasonable jury could find Burgess guilty of robbery beyond a reasonable doubt. See

Reyes, 50 N.J. 458-59. The more than twenty text messages exchanged between 

Burgess and Spence provide significant circumstantial evidence that defendant 

facilitated the robbery of the victim. The last of these text message coincided with 

the arrival of Spence and Wynn, who Burgess admitted to the hotel room. Notably, 

the text message stating "[s]earch everything and make him get the rest of the bread" 

evidences Burgess's intention not just to sneak in and steal drugs and money, but to 

use some degree of force, threat, or intimidation to get those items, which N.J.S.A. 

2C:15-1 requires. 
44 A-3652-18T3

Burgess now contends that the State failed to present evidence of a robbery 

because "detectives recovered $225 in cash from the pockets of [the victim], 

negating the claim that he was the victim of [a] robbery." The fact that money was 

found on the victim and drugs were found in the room is of no moment, however, 

because the record reveals that the robbery ended abruptly when Spence shot the 

victim. Burgess also contends that he was incapable of robbing the victim because

he was a resident of the room and only granted entry to Spence and Wynn. This 

argument is belied by the forensic text message evidence, lay witness testimony, and 

surveillance footage showing Burgess helped orchestrate it. 

Burgess argues that the State presented "no evidence that defendant had a gun 

or that he otherwise planned to participate in the robbery." The fact that the victim 

was shot during the robbery is sufficient to create the inference that one or more of 

the co-defendants were armed, which would allow the State's case to survive a 

motion for judgment of acquittal. It is of no moment that the defense later argued in 

its case-in-chief that it was the victim that was armed. See Reyes, 50 N.J. at 459 

(1967) (explaining that if the motion was made at the close of the State's case, this 

court does not consider any evidence adduced in the defendant's case). As such, the 

State put forth sufficient circumstantial evidence to survive a motion for judgment 

of acquittal and the trial judge did not err by denying it. 
45 A-3652-18T3

To the extent that we have not addressed defendants' remaining arguments, 

we conclude they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.