STATE OF NEW JERSEY V. MICHELLE LODZINSKI (14-08-0871, MIDDLESEX COUNTY AND STATEWIDE)

S
               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2118-16T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,          APPROVED FOR PUBLICATION

v.                                           May 26, 2021

                                        APPELLATE DIVISION
MICHELLE LODZINSKI,

     Defendant-Appellant.
_________________________

          Argued April 1, 2019 – Decided August 7, 2019

          Before Judges Messano, Fasciale and Rose.

          On appeal from the Superior Court of New Jersey,
          Law Division, Middlesex County, Indictment No. 14-
          08-0871.

          Gerald Krovatin and David W. Fassett argued the
          cause for appellant (Krovatin Klingeman, LLC and
          Arseneault & Fassett, LLP, attorneys; Gerald
          Krovatin, David W. Fassett, and Gregory D. Jones, on
          the briefs).

          Joie D. Piderit, Assistant Prosecutor, argued the cause
          for respondent (Andrew C. Carey, Middlesex County
          Prosecutor, attorney; Joie D. Piderit, of counsel and on
          the brief).

     The opinion of the court was delivered by

MESSANO, P.J.A.D.
      On May 25, 1991, defendant Michelle Lodzinski reported that her son,

five-year-old Timothy (Timmy) Wiltsey, went missing while both were

attending a Memorial Day carnival in Sayreville.        Search efforts began

immediately, they became widespread, and descriptions of Timmy, the

clothing and Teenage Mutant Ninja Turtles (TMNT) sneakers he was wearing,

and his continued disappearance received national media attention. In October

1991, a schoolteacher walking in the area of Olympic Drive, near the Raritan

Center industrial complex in Edison, found a child's TMNT sneaker; believing

it might be related to the case, he provided it to law enforcement authorities.

Defendant had worked for a company in Raritan Center for approximately six

months in the late 1980s.

      Police were able to match the model number of the sneaker to a shoebox

defendant provided shortly after Timmy's disappearance. When first shown

the sneaker, defendant said it was not her son's, describing features that

distinguished it from the sneakers Timmy was wearing. In November 1991,

defendant returned to view the sneaker a second time and told authorit ies it

could be her son's. She did not disclose, however, that she had worked in

Raritan Center. Also in November 1991, police and an FBI agent assigned to




                                                                       A-2118-16T2
                                      2
the case searched the area on foot near where the sneaker was found, but they

discovered nothing of significance.

      FBI agent Ron Butkiewicz and police officers returned to the same

general area on April 23, 1992, and the following day, April 24, and found a

matching sneaker and a pillowcase.         Approximately 150 yards away, and

across Olympic Drive, they found Timmy's skeletal remains in the stagnant

water of Red Root Creek, a tributary of the Raritan River.          They also

discovered remnants of his clothing, a shovel and a TMNT balloon, like

Timmy sometimes kept in his bedroom at home.

      Approximately twenty-five feet above the remains, embedded in the soil

in the bank of the creek, Butkiewicz found a blue blanket with multi-colored,

metallic fibers.   Although FBI testing on the blanket revealed nothing of

evidential value, years later, a New Jersey State Police forensic scientist

identified metallic fibers found on the pillowcase as being similar to those in

the blanket, although he never performed a full trace analysis.       In 1992,

defendant and her parents could not identify the blanket, but, twenty-years

later, detectives showed the blanket to three women who babysat Timmy in the

late 1980s and early 1990s; they identified it as coming from defendant's

home. Police also showed the blanket to several other witnesses when the

investigation was reopened, but none of them could identify it.



                                                                       A-2118-16T2
                                       3
       The medical examiner who examined the remains at the scene, but died

before trial, could not reach a conclusion about the cause of Timmy's death.

However, another medical examiner, Dr. Geetha Natajarian, who reviewed the

autopsy reports, photographs, and investigative and other forensic reports,

testified. She, too, could not determine a cause of death, but through a process

of elimination, opined that the manner of Timmy's death was a homicide. A

forensic anthropologist, Donna Fontana, opined that Timmy's body had

decomposed where it was found, at a "surface burial" site.

      Although defendant was immediately a suspect in the investigation of

Timmy's disappearance, and remained so after the authorities found his

remains, she never admitted having a role in either his disappearance or his

death. Within the first two months after her son's disappearance, however,

defendant provided numerous statements that conflicted with the account she

first provided on the night of the carnival, i.e., that she went to purchase a soda

and Timmy simply disappeared.

      On June 6, 1991, defendant told authorities that two men abducted

Timmy. The next day, she claimed that a woman she knew only as "Ellen"

was at the carnival and offered to watch Timmy as defendant purchased her

soda. Two men accompanied Ellen. Defendant described them, but did not

know who they were. Initially, defendant claimed the trio just disappeared



                                                                          A-2118-16T2
                                        4
with Timmy. In a later version, she said one of the men threatened her with a

knife and told her not to say anything or they would harm Timmy.

       Twenty-three years after Timmy's disappearance, a Middlesex County

grand jury indicted defendant in a single count charging her with the first -

degree murder of her son. Trial proceeded between March and May 2016. At

the close of the State's case, defendant moved for a judgment of acquittal

pursuant to Rule 3:18-1, which the judge denied. The jury found defendant

guilty. After denying her motions for a judgment of acquittal notwiths tanding

the verdict (JNOV), Rule 3:18-2, or a new trial, Rule 3:20-1, the judge

sentenced defendant to a thirty-year term of imprisonment with a thirty-year

period of parole ineligibility.

       Before us, defendant raises the following points:

             POINT I

             [DEFENDANT'S] CONVICTION SHOULD BE
             REVERSED, AND JUDGMENT OF ACQUITTAL
             SHOULD   BE   ENTERED,  BECAUSE   NO
             EVIDENCE SUGGESTED, MUCH LESS PROVED,
             THAT [DEFENDANT] CAUSED TIMOTHY'S
             DEATH.1

             POINT II

             [DEFENDANT'S] CONVICTION SHOULD BE
             VACATED AND A JUDGMENT OF ACQUITTAL

1
    We have omitted the sub-points of defendant's arguments.


                                                                      A-2118-16T2
                                        5
            ENTERED BECAUSE THE STATE VIOLATED
            HER RIGHT TO DUE PROCESS OF LAW BY
            WAITING [TWENTY-THREE] YEARS TO SEEK
            HER INDICTMENT AND BRING HER TO TRIAL.

            POINT III

            THE TRIAL COURT COMMITTED ONE OR MORE
            REVERSIBLE ERRORS BY UNNECESSARILY
            AND IMPROPERLY INVOKING RULE 1:8-2(d)(1)
            TO REMOVE AND REPLACE A DEFENSE-
            LEANING JUROR WHO WAS ABLE TO
            CONTINUE       DELIBERATING,      WHEN
            DELIBERATIONS HAD ALREADY PROGRESSED
            TO AN ADVANCED STATE AND WITHOUT
            FINDING THAT THE RECONSTITUTED JURY
            WOULD BE IN A POSITION TO CONDUCT OPEN-
            MINDED AND FAIR DELIBERATIONS, THEREBY
            VIOLATING [DEFENDANT'S] RIGHT TO A FAIR
            TRIAL BY AN IMPARTIAL JURY.

            POINT IV

            ALTERNATIVELY,    THE   TRIAL     COURT
            COMMITTED REVERSIBLE ERROR BY FAILING
            TO DECLARE A MISTRIAL UPON LEARNING
            THAT THE JURY HAD BEEN TAINTED BY
            OUTSIDE INFORMATION THAT HAD THE
            CAPACITY TO INFLUENCE THE RESULT.

We have considered these arguments in light of the record and applicable legal

standards. We affirm.

                                      I




                                                                      A-2118-16T2
                                      6
      Whether made before a verdict is returned, see Rule 3:18-1, or after, see

Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State

v. Tindell, 

417 N.J. Super. 530

, 548-49 (App. Div. 2011).

            [T]he governing test is: whether the evidence viewed
            in its entirety, and giving the State the benefit of all of
            its favorable testimony and all of the favorable
            inferences which can reasonably be drawn therefrom,
            is such that a jury could properly find beyond a
            reasonable doubt that the defendant was guilty of the
            crime charged.

            [State v. D.A., 

191 N.J. 158

, 163 (2007) (citing State
            v. Reyes, 

50 N.J. 454

, 458-59 (1967)).]

"The trial judge must consider only the existence of such evidence, not its

'worth, nature, or extent.'" State v. Brooks, 

366 N.J. Super. 447

, 453 (App.

Div. 2004) (quoting State v. Kluber, 

130 N.J. Super. 336

, 342 (App. Div.

1974)).

      "It is generally stated that whether the motion to acquit is made at the

end of the State's case or after the end of the entire case the standard is the

same, i.e., only the State's proofs will be considered." State v. Sugar, 

240 N.J.

Super. 148

, 152-53 (App. Div. 1990) (emphasis added) (citing Kluber, 

130

N.J. Super. at 341-42

). An exception to this general rule applies when "a

defendant has had the benefit of the submission to the jury of a lesser[ -

]included offense based upon proofs adduced on his own case," and is

convicted of that lesser-included offense. 

Id. at 153

. In those circumstances,

                                                                          A-2118-16T2
                                        7
"the sufficiency of the evidence should be tested upon a consideration of the

entire record and not merely a limited application of the Reyes criteria to the

State's proofs." Ibid.2

      "The approach is the same though the testimony is circumstantial rather

than direct; indeed in many situations circumstantial evidence may be 'more

forceful and more persuasive than direct evidence.'" State v. Mayberry, 

52

N.J. 413

, 437 (1968) (quoting State v. Corby, 

28 N.J. 106

, 119 (1958)); accord

Tindell, 

417 N.J. Super. at 549

. Even though the evidence must be sufficient

to support a finding of guilt beyond a reasonable doubt, "[i]nferences need not

be established beyond a reasonable doubt." Tindell, 

417 N.J. Super. at 549

(citing State v. Taccetta, 

301 N.J. Super. 227

, 240 (App. Div. 1997)). As the

Court has said:

            [A] jury may draw an inference from a fact whenever
            it is more probable than not that the inference is true;
            the veracity of each inference need not be established
            beyond a reasonable doubt in order for the jury to
            draw the inference. Nevertheless, the State's right to
            the benefit of reasonable inferences should not be used
            to shift or lighten the burden of proof, or become a
            bootstrap to reduce the State's burden of establishing


2
  Sugar is distinguishable, because although the jury in this case received
instructions on the lesser-included offenses of aggravated manslaughter and
reckless manslaughter, the evidence adduced on defendant's case amounted to
a general denial of any involvement in Timmy's death, and defendant was
convicted of murder and not either of the lesser-included offenses.


                                                                       A-2118-16T2
                                       8
            the essential elements of the offense charged beyond a
            reasonable doubt.

            [State v. Brown, 

80 N.J. 587

, 592 (1979) (citations
            omitted).]

We apply the same legal standard as the trial judge and review the denial of a

motion for acquittal de novo. State v. Fuqua, 

234 N.J. 583

, 590 (2018) (citing

Sugar, 

240 N.J. Super. at 153

).

      These principles, therefore, generally alleviate the necessity of

describing in detail evidence defendant adduced at trial, which in this case was

substantial and in many ways directly rebutted the State's proofs.            For

example, defendant produced several witnesses who claimed to have seen a

young boy generally fitting Timmy's description at the carnival that night,

thereby refuting the State's major contention that Timmy was never at the

carnival with defendant, he was likely already dead at that point, and defendant

concocted a story to escape detection. Defendant produced expert testimony

that challenged the State's theory that defendant buried Timmy in a shallow

grave where his remains were found, and criticized the handling of critical

evidence, most notably the blanket. In addition, defendant produced witnesses

that supported the defense of third-party guilt, i.e., that one or more persons

abducted Timmy from the carnival.




                                                                        A-2118-16T2
                                       9
      In addition, we are not called upon to address the admissibility of the

State's evidence, because none of the points on appeal raises such a challenge.

Succinctly stated, the State contended that defendant killed Timmy, a child she

bore out of wedlock at a very young age, because she was struggling

financially and emotionally.    It introduced evidence of Timmy's frequent

absences and tardiness at school, that defendant sometimes brought him to her

job sites because she could not find a babysitter and she moved from job to

job, staying only a short period of time before leaving to find another. The

State proved that defendant sometimes did not return from a night out, leaving

the babysitter to fend for herself. It also introduced evidence of defendant's

romantic involvement with a married man shortly after Timmy's disappearance

and other "cavalier" conduct, including her behavior during various interviews

with law enforcement and at Timmy's funeral.

      Defendant objected to some of this evidence, and the trial judge astutely

noted his concern on occasion regarding its admissibility. He noted, as do we,

that the evidence frequently cut both ways.      It suffices to say, whether a

strategic decision or not, much of this evidence, which the State argued

demonstrated motive, was admitted without objection and, in most instances

was not subjected to analysis under the strictures of N.J.R.E. 404(b), and State

v. Cofield, 

127 N.J. 328

, 338 (1992). See State v. Foglia, 

415 N.J. Super. 106

,



                                                                       A-2118-16T2
                                      10
122-23 (App. Div. 2010) (noting that non-criminal "bad conduct evidence" still

must undergo evaluation under the Rule and Cofield). Our comments are not

intended as a criticism, but rather only to make clear that we address the

argument raised in Point I on the record that exists, applying the standards

already enunciated.

      Due process requires that to convict any defendant, the State must prove

all elements of a criminal charge beyond a reasonable doubt.             State v.

Kiriakakis, 

235 N.J. 420

, 431 (2018) (citing United States v. Booker, 

543 U.S.

220

, 230 (2005)). N.J.S.A. 2C:1-13(a) codifies this constitutional requirement

and provides: "No person may be convicted of an offense unless each element

of such offense is proved beyond a reasonable doubt. In the absence of such

proof, the innocence of the defendant is assumed." To convict defendant of

murder under N.J.S.A. 2C:11-3(a)(1) and (2), the State was required to prove

beyond a reasonable doubt that she purposely or knowingly caused Timmy's

death, or serious bodily injury that resulted in his death.

      Our Criminal Code defines "purposely" and "knowingly" as follows:

            (1) Purposely. A person acts purposely with respect to
            the nature of his conduct or a result thereof if it is his
            conscious object to engage in conduct of that nature or
            to cause such a result.

            (2) Knowingly. A person acts knowingly with respect
            to the nature of his conduct or the attendant
            circumstances if he is aware that his conduct is of that

                                                                         A-2118-16T2
                                        11
             nature, or that such circumstances exist, or he is aware
             of a high probability of their existence. A person acts
             knowingly with respect to a result of his conduct if he
             is aware that it is practically certain that his conduct
             will cause such a result.            "Knowing," "with
             knowledge" or equivalent terms have the same
             meaning.

             [N.J.S.A. 2C:2-2(b)(1) and (2) (emphases added).]

As can be seen, the requisite mental states supporting a conviction for murder

require conduct by the actor and legal causation.

      The Criminal Code also defines the relationship between conduct and

causation:

             a. Conduct is the cause of a result when:

                   (1) It is an antecedent but for which the
                   result in question would not have
                   occurred; and

                         ....

             b. When the offense requires that the defendant
             purposely or knowingly cause a particular result, the
             actual result must be within the design or
             contemplation, . . . of the actor, or, if not, the actual
             result must involve the same kind of injury or harm as
             that designed or contemplated and not be too remote,
             accidental in its occurrence, or dependent on another's
             volitional act to have a just bearing on the actor's
             liability or on the gravity of his offense.

             [N.J.S.A. 2C:2-3(a)(1) and (b).]




                                                                         A-2118-16T2
                                        12
The Code "provides for a two-step analysis for determining the requisite causal

connection. First, the finder of fact must determine whether the State has

proven 'but-for' causation under subsection a. Second, it must consider the

more specific requirement of . . . subsection[] b . . . ." Cannel, N.J. Criminal

Code Annotated, cmt. 2 on N.J.S.A. 2C:2-3 (2019). The State establishes

"but-for" causation "by demonstrating that the event[,]" here, Timmy's death,

"would not have occurred absent . . . defendant's conduct." State v. Buckley,

216 N.J. 249

, 263 (2013) (citing N.J.S.A. 2C:2-3(a)). 3

      Defendant's essential argument is that the State failed to prove she

engaged in any conduct that caused Timmy's death. The State's arguments in

response largely miss the mark.

      For example, it is undisputed that in New Jersey, the State need not

produce the victim's body, much less prove a specific cause of death. As we

said in State v. Zarinsky, "[t]he failure to produce the victim's body does not

preclude a finding that she is dead." 

143 N.J. Super. 35

, 54 (App. Div. 1976)

(citing Commonwealth v. Burns, 

187 A.2d 552

, 558-59 (Pa. 1963)), aff'd, 75


3
  In this sense, the Code incorporates elements of the common law concept of
corpus delicti. See State v. Hill, 

47 N.J. 490

, 496 (1966) ("It is clear that the
corpus delicti is proved where the State . . . has produced facts and
circumstances from which the jury can infer that a loss has occurred and that
that loss was caused by or was a result of a criminal act.") (citing State v.
Lucas, 

30 N.J. 37

, 53 (1959)).


                                                                          A-2118-16T2
                                       

13
N.J. 101

 (1977). "[T]he successful concealment or destruction of the victim's

body should not preclude prosecution of his or her killer where proof of guilt

can be established beyond a reasonable doubt." 

Id. at 55

 (citing Campbell v.

People, 

42 N.E. 123

, 127 (Ill. 1895)). That the prosecution need not produce

the victim's body or, because of destruction or decomposition of the victim's

remains, establish a cause of death, is widely accepted. See, e.g., People v.

Towler, 

641 P.2d 1253

, 1257-61 (Cal. 1982); Commonwealth v. Nadworny,

486 N.E.2d 675

, 682-83 (Mass. 1985); Burns, 

187 A.2d at 558-59

; State v.

Rebeterano, 

681 P.2d 1265

, 1267-68 (Utah 1984); Edwards v. Commonwealth,

808 S.E.2d 211

, 216-20 (Va. Ct. App. 2017).

      However, even though the victim's body was never found in Zarinsky,

the State produced extensive direct and circumstantial evidence that showed

the defendant engaged in some conduct that caused the victim's death.

Witnesses identified the victim riding in the defendant's car shortly before she

went missing; he was identified as the person who tried to lure two other

young girls into his car two days earlier, and two others two weeks earlier;

police found ammunition, as well as panties and hairclips similar to those worn

by the victim, in the defendant's car, and blood on its rear bumper and taillight;

and the defendant made incriminating admissions to jailmates. 143 N.J. Super.




                                                                         A-2118-16T2
                                       14
at 41-47. The contrast between such evidence of the defendant's conduct in

Zarinsky, and what the State adduced here, requires no further comment.

      Nor is it meaningful for the State to argue that a jury may convict a

defendant solely on circumstantial evidence.      That proposition is beyond

peradventure. See, e.g., State v. Rogers, 

19 N.J. 218

, 231-35 (1955); State v.

Donohue, 

2 N.J. 381

, 389-92 (1949); State v. Carroll, 

256 N.J. Super. 575

, 603

(App. Div. 1992).

      Rather, the issue here is whether the State proved, admittedly by

circumstantial evidence, that defendant did "something to produce the

prohibited . . . result[,]" Cannel, N.J. Criminal Code Annotated, cmt. 2 on

N.J.S.A. 2C:2-3 (citing State v. V.R., 

387 N.J. Super. 342

 (App. Div. 2006)),

and "the actual result[,]" the death of her son, was "within [her] design or

contemplation . . . or . . . involve[d] the same kind of injury or harm as that

[she] designed or contemplated." N.J.S.A. 2C:2-3(b).

      We agree with the State that there was available proof for the jury to

conclude beyond a reasonable doubt that Timmy's death was neither suicide

nor an accident, but rather he was the victim of a homicide. The jury was free

to accept Dr. Natajarian's opinion in that regard. It also could accept other

circumstantial proof that the killing was not accidental.     Fontana's expert




                                                                       A-2118-16T2
                                      15
opinion permitted an inference that whoever killed Timmy dug a shallow grave

in a remote area to dispose of his body ostensibly to avoid detection.

      There was also available evidence beyond a reasonable doubt that

defendant placed Timmy's body in the shallow grave. She was the last person

seen with him; defendant's landlady testified that she heard defendant and

Timmy in the apartment on the morning of the carnival. Items recovered from

the area where police found his remains, most significantly the blanket and the

TMNT balloon, relate back directly to defendant's home.             Defendant's

conflicting, ever-changing statements made to law enforcement and others

during the time Timmy was missing demonstrate an attempt to not only deflect

suspicion from her, but to hinder the investigation.

      After police found Timmy's sneaker and then his remains, defendant

continued to obfuscate, first telling police the sneaker was not his, only to

return later and tell police it could be. She said the blanket did not come from

her home. Defendant failed to tell police that she had worked in the Raritan

Center complex, and the jury was entitled to infer that her conduct after

confirmation of Timmy's death was inconsistent with innocence and more

consistent with a consciousness of her own guilt.

      Nevertheless, defendant contends, without conceding, that despite proof

she had the opportunity to commit the homicide and was present at and



                                                                         A-2118-16T2
                                       16
participated in the burial of Timmy's remains, the State failed to adduce

sufficient evidence that she engaged in conduct that caused his death, much

less that she did so purposely or knowingly. Although this presents a close

question, we disagree.

      "Case law and treatises have recognized the special role of motive

evidence and its unique capacity to provide a jury with an overarching

narrative, permitting inferences for why a defendant might have engaged in the

alleged criminal conduct." State v. Calleia, 

206 N.J. 274

, 293 (2011); see also

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 9 on

N.J.R.E. 404 (2019) ("[M]otive evidence is that which discloses why the

defendant committed a criminal offense.") (citing State v. Hasher, 

246 N.J.

Super. 495

, 500 (Law Div. 1991)). "[C]ourts have admitted motive evidence

even when it did no more than raise an inference of why a defendant may have

engaged in criminal conduct . . . ." Calleia, 

206 N.J. at 294

.

      The Court also has recognized that one purpose of motive evidence "is to

aid the jury, particularly in a case resting upon circumstantial evidence, in

determining who the person was who committed the crime." State v. Carter,

91 N.J. 86

, 102 (1982) (emphasis added). "[M]otive evidence can 'establish

the identity of the defendant as the person who committed the offense' and . . .

'is often of great importance, particularly in a case based largely on



                                                                        A-2118-16T2
                                       17
circumstantial evidence.'" Calleia, 

206 N.J. at 293

 (emphasis added) (quoting

1 Wharton on Criminal Evidence § 4:45, at 479 (15th ed. 1997)). Here, the

jury could accept the State's contention that defendant had sufficient motive to

kill her son, who, despite evidence she introduced to the contrary, the State

claimed was a burden to her.

      Additionally, "a defendant's post-crime conduct evidencing a guilty

conscience provide[s] a sound basis from which a jury logically could infer

that a defendant was acting consistent with an admission of guilt or that the

conduct was illuminating on a defendant's earlier state of mind."       State v.

Williams, 

190 N.J. 114

, 126 (2007) (citing State v. Rechtschaffer, 

70 N.J. 395

,

413-15 (1976)). Here, the State introduced evidence of defendant's conduct

when she first reported Timmy was missing, and argued her false report of the

events at the carnival, her ever-changing story of how Timmy disappeared, her

omission of information that might have incriminated her, i.e., her prior

employment at Raritan Center, and her unusual lack of emotion even after

Timmy's remains were found, demonstrated her participation in criminal

conduct that caused his death. See, e.g., State v. Tucker, 

190 N.J. 183

, 190

(2007) (noting the State's ability "to impeach the validity of [a de fendant's]

statements" through "asserted inconsistencies . . . between two or more




                                                                        A-2118-16T2
                                      18
statements"); State v. Cerce, 

22 N.J. 236

, 245-46 (1956) (evidence admitted as

to the defendant's indifference when informed that his wife had been killed).

      Additionally, to support a conviction for murder, the State was required

to prove defendant's purposeful or knowing conduct.          Evidence of only

reckless conduct, underlying and supporting a conviction for aggravated

manslaughter or reckless manslaughter, was insufficient. See N.J.S.A. 2C:11-

4(a)(1) and (b)(1) (defining aggravated and reckless manslaughter); see also

N.J.S.A. 2C:2-2(b)(3) ("A person acts recklessly . . . when he consciously

disregards a substantial and unjustifiable risk that [a] material element[,]" in

this case, death, "will result from his conduct."). The State, therefore, was

entitled to disprove any reasonable doubt that defendant acted without the

requisite intent. See N.J.R.E. 401 (evidence is relevant if it has "a tendency in

reason to prove or disprove any fact of consequence") (emphasis added). "The

burden of establishing this connection is not onerous: 'if the evidence makes a

desired inference more probable than it would be if the evidence were not

admitted, then the required logical connection has been satisfied.'" State v.

Garrison, 

228 N.J. 182

, 195 (2017) (quoting Williams, 

190 N.J. at 123

).

      Circumstantial proof of intent, through defendant's words and conduct

both before and after the crime, is well-recognized in our jurisprudence, and

proof of intent is a specific exception to the general prohibition in N.J.R.E.



                                                                         A-2118-16T2
                                       19
404(b) regarding evidence of other bad acts. See N.J.R.E. 404(b) (prohibiting

admission of evidence of "[o]ther crimes, wrongs, or acts[,]" generally, but

allowing its admission "for other purposes, such as proof of . . . intent").

"Such evidence may be admissible . . . if it discloses the mental intention or

purpose of a defendant in committing a criminal offense or to negate the

existence of innocent intent." Biunno, Weissbard & Zegas, Current N.J. Rules

of Evidence, cmt. 10 on N.J.R.E. 404 (emphasis added) (citing State v.

Mulero, 

51 N.J. 224

, 228 (1968)).

      Although "intent should not be 'confused' with motive[,]" there is a

logical relationship between the two. State v. Apprendi, 

304 N.J. Super. 147

,

157 (App. Div. 1997) (quoting Morss v. Forbes, 

24 N.J. 341

, 359 (1957)),

aff'd, 

159 N.J. 7

 (1999), rev'd on other grounds sub nom. Apprendi v. New

Jersey, 

530 U.S. 466

 (2000). "In criminal law motive may be defined as . . .

the moving power which impels to action for a definite result. . . . [I]ntent . . .

is the purpose to use a particular means to effect a certain result." 

Id. at 157

-

58 (quoting 21 Am. Jur. 2d Criminal Law § 173 (1981)). Our courts have

historically recognized a "wider range of evidence is permitted" to show both.

Rogers, 

19 N.J. at 228

.

            Otherwise there would often be no means to reach and
            disclose the secret design or purpose of the act
            charged in which the very gist of the offense may
            consist. . . . All evidentiary circumstances which are

                                                                          A-2118-16T2
                                        20
            relevant to or tend to shed light on the motive or intent
            of the defendant or which tend fairly to explain his
            actions are admissible in evidence against him . . . .

            [Ibid. (emphasis added) (citations omitted).]

See also State v. J.M., Jr., 

438 N.J. Super. 215

, 223 (App. Div. 2014) ("When

offered as a means of proving intent, other-crimes evidence is often

indistinguishable from motive."), aff'd as modified, 

225 N.J. 146

 (2016).

      Post-crime consciousness of guilt evidence is relevant "to state of mind

disputes" even when the crime charged requires reckless conduct. Williams,

190 N.J. at 129

. Here, in addition to the evidence we have already discussed,

the jury could conclude that defendant's contradictory statements about

Timmy's disappearance were circumstantial evidence of a guilty state of mind

regarding the cause of his death.

      In State v. Bzura, the defendant, an attorney, was charged with theft of

his client's money and false swearing based on subsequent inconsistent

statements to the grand jury. 

261 N.J. Super. 602

, 606-07 (App. Div. 1993).

In rejecting his argument that the charges should have been severed before

trial, we held that the evidence of his false swearing would have been

admissible even if the defendant were tried separately for theft. 

Id. at 616

.

"[T]he fact that [the] defendant made inconsistent statements . . . would tend to




                                                                         A-2118-16T2
                                       21
show that [the] defendant acted with guilty intent when he obtained his client's

money." 

Ibid.

 (citation omitted).

      In sum, giving the State the benefit of all favorable testimony and

reasonable inferences that could be drawn from that testimony, we conclude

there was sufficient evidence to prove beyond a reasonable doubt that

defendant purposefully or knowingly caused Timmy's death.

                                        II

      In her second point, defendant argues the judge erred in denying her

motion to dismiss the indictment because of the twenty-three-year delay

between the finding of Timmy's remains and the grand jury's action. She

contends there was no reasonable explanation for failing to show Timmy's

babysitters the blanket during the initial investigation, and the delay prejudiced

her defense. She notes that although two defense witnesses who saw Timmy at

the carnival testified at trial, one was unable to travel due to advanced age,

testified by Skype and during her video testimony changed her account. A

second had no recollection of the events, causing defendant to read the

witness's contemporaneous statement to police for the jury.

      "Statutes of limitations protect defendants from oppressive pre-

indictment delay[,]" but New Jersey has no statute of limitations for

prosecuting the crime of murder. State v. Townsend, 

186 N.J. 473

, 487 (2006)



                                                                         A-2118-16T2
                                       22
(citing N.J.S.A. 2C:1-6(a)). Nevertheless, a due process violation may occur

because of a delayed indictment if:         (1) the State deliberately delayed

indictment in order to gain a tactical advantage over the defendant; and (2) the

delay caused the defendant actual prejudice in presenting his or her defense.

Id. at 488-89

 (citing United States v. Gouveia, 

467 U.S. 180

, 192 (1984)).

      We agree with the trial judge that the record does not support a

conclusion that the State deliberately delayed indictment in order to gain a

tactical advantage over defendant. At most, the State's failure to show the

blanket to more people in 1992, when investigators showed it only to

defendant and her parents, evidences negligence. When the investigation was

reopened in 2011, the State showed the blanket to a larger number o f people,

including not only Timmy's former babysitters, who identified it as belonging

to defendant, but also to others who did not identify the blanket as defendant's.

The jury heard the evidence on both sides, so we also discern no prejudice to

defendant on this issue.

      We further agree with the judge that defendant failed to demonstrate

other prejudice occasioned by the delay. In addition to the two witnesses

cited, defendant produced four other witnesses who identified a young boy of

Timmy's general description who attended the carnival the night of May 25,

1991. Moreover, the delay allowed defendant to present a fuller third -party



                                                                         A-2118-16T2
                                       23
defense, because a critical witness she produced at trial did not surface until

2015.

        For these reasons, we reject the argument that pre-indictment delay

violated defendant's due process rights.

                                       III

        We provide necessary context for defendant's remaining contentions.

The jury began deliberations at approximately noon, Thursday, May 12, 2016.

Late that afternoon, it requested playback of some testimony.       The judge

dismissed the jury for the day at 3:45 p.m., advising that playback would occur

the following morning, which it did, lasting until 12:20 p.m. After lunch and

further deliberations, the jury requested additional playback, which began at

2:52 p.m., but was not completed. The judge dismissed the jury at 3:56 p.m.

        Playback continued on Monday morning, May 16, for approximately one

hour, after which the jury returned to deliberate and requested more playback

at 1:42 p.m. After some discussion with the attorneys, the judge told the jury

to return to the jury room and clarify the request. Within minutes, at 1:53

p.m., the judge received a note: "Research was done by the foreman as to the

FBI's protocol back in the 1990s."

        In this regard, Agent Butkiewicz had testified that when he found the

blanket near Timmy's remains in 1992, he never photographed it in situ, nor



                                                                       A-2118-16T2
                                       24
did he measure its precise location from the skeletal remains or other

landmarks at the scene. Butkiewicz claimed it was not FBI protocol at the

time to do so.       However, defense counsel vigorously cross-examined

Butkiewicz about this and established through him and other State's witnesses

that the lack of any procedure to document the exact location of the evidence

was contrary to protocols established within New Jersey's law enforcement

community.

      Recognizing that a juror conducting independent research violated his

repeated admonitions, the judge conferred with the attorneys and decided

without objection to interview the juror. During questioning, the foreperson

admitted that immediately before beginning deliberations he performed

internet research on FBI protocols on his personal laptop computer at home.

The juror said his research did not tell him "anything important" or "relevant"

to the case, but he admitted speaking about his research with a few of the other

jurors.

      The judge then questioned the other deliberating jurors individually, and

all stated they were aware of the foreperson's research. However, they each

said the research and any conversations about it would not affect their

consideration of the evidence. The judge dismissed the jury for the day.




                                                                        A-2118-16T2
                                      25
      On Tuesday, May 17, neither the State nor defendant moved for a

mistrial. Defendant urged the judge not to remove the foreperson from the

jury, and the State argued otherwise. The judge ruled that the foreperson

should be removed pursuant to Rule 1:8-2(d), because he had proven himself

unable and unwilling to follow the court's instructions.       At this point,

defendant claimed that deliberations had advanced to a point where

substitution was improper, and defense counsel moved for a mistrial. Noting

the jury had only deliberated for approximately five hours, the judge denied

the motion.

      The court selected an alternate juror, designated a new foreperson, and

properly instructed the reconstituted jury to begin deliberations anew. After

approximately an additional thirty minutes of the previously requested

playback, the judge dismissed the jury for lunch. Some additional playback

occurred upon its return, and the judge dismissed the jury after approximately

ninety minutes of deliberations.      The jury deliberated upon its return

Wednesday morning, and, at 11:04 a.m., returned its verdict.

      In a written supplemental opinion filed after the verdict but before

consideration of defendant's formal post-verdict motions, the judge reasoned

that dismissal of the foreperson was appropriate, because he was unable to

follow the court's express, repeated instructions not to conduct independent



                                                                      A-2118-16T2
                                      26
research and demonstrated a lack of candor in responding to the judge's

questions.   The judge determined that a mistrial was unwarranted because

these issues were "personal" to the dismissed juror and did not affect the

remaining jurors' ability to deliberate fairly. 4

      The judge entertained oral argument on defendant's post-verdict motions,

and, in his written decision that accompanied the order denying JNOV or a

new trial, the judge reiterated his prior reasoning. He concluded dismissal of

the foreperson was proper under Rule 1:8-2(d)(1) and deliberations had not

progressed so far that a mistrial was warranted.

      In her third point, defendant argues that the judge erred by replacing the

deliberating foreperson, and, in her fourth point, she alternatively contends

that the judge should have declared a mistrial rather than replace the juror.

The judge justified removing the deliberating foreperson pursuant to Rule 1:8-

2(d)(1), which "provides that, after the jury begins its deliberations, an

alternate juror may not be substituted unless 'a juror dies or is discharged by

the court because of illness or other inability to continue.'" State v. Musa, 222

4
  Defendant refers to the foreperson as a "defense-leaning" juror in her brief,
but the juror's leanings are not apparent from the transcripts of the individual
voir dire, as the judge carefully did not inquire about deliberations to that
point. However, in his written supplemental decision, the judge
parenthetically cited a post-verdict news article in which the substituted juror
claimed to have been told by other jurors that the dismissed foreperson
believed defendant was not guilty.


                                                                         A-2118-16T2
                                          

27
N.J. 554

, 565 (2015) (quoting R. 1:8-2(d)(1)). The rule "is intended to strike a

balance between a defendant's right to a fair trial decided by an impartial jury

and judicial economy."        

Ibid.

 (citing State v. Jenkins, 

182 N.J. 112

, 124

(2004)).

      The Court has construed the "'inability to continue' provision of th[e]

rule[,] . . . restrictively . . . 'to protect a defendant's right to a fair jury trial.'"

State v. Terrell, 

231 N.J. 170

, 171 (2017) (Albin, J., dissenting) (quoting

Jenkins, 

182 N.J. at 124

). "[O]ur courts distinguish between reasons that are

personal to the juror, which may permit a substitution under Rule 1:8-2(d)(1),

and issues derived from 'the juror's interaction with the other jurors or with the

case itself,' which may not." State v. Ross, 

218 N.J. 130

, 147 (2014) (quoting

State v. Williams, 

171 N.J. 151

, 163 (2002)). "Our review of a trial court's

decision to remove and substitute a deliberating juror because of an 'inability

to continue' pursuant to Rule 1:8-2(d)(1), is deferential. We will not reverse a

conviction unless the court has abused its discretion." Musa, 

222 N.J. at 564

-

65 (citing Williams, 

171 N.J. at 168, 170

; State v Valenzuela, 

136 N.J. 458

,

473 (1994)).

      Nevertheless, "there are times when jury deliberations have proceeded

too far to permit replacement of a deliberating juror with an alternate."

Jenkins, 

182 N.J. at 131

. While there is no set time after which substitution is



                                                                                A-2118-16T2
                                           28
inappropriate, Ross, 

218 N.J. at 151,

 "[t]hat critical threshold is passed when

'it is strongly inferable that the [remaining jurors have] made actual fact -

findings or reached determinations of guilt or innocence [and] there is a

concern that the new juror will not play a meaningful role in deliberations.'"

Musa, 

222 N.J. at 568

 (second and third alterations in original) (quoting

Jenkins, 

182 N.J. at 132

). 5 "Thus, a court must assess whether 'in light of the

timing of the juror's dismissal and other relevant considerations . . . a

reconstituted jury will be in a position to conduct open-minded and fair

deliberations.'" 

Ibid.

 (quoting Ross, 

218 N.J. at 147

).

      "The court must be prepared to declare a mistrial if a substitution would

imperil the integrity of the jury's process." Ross, 

218 N.J. at 147

 (citing State

v. Hightower, 

146 N.J. 239

, 253-54 (1996)). Our "review of 'a trial court's

denial of a mistrial motion' is also governed by the abuse-of-discretion

standard." Musa, 

222 N.J. at 565

 (quoting State v. Yough, 

208 N.J. 385

, 397

(2011)).

      Defendant    contends   substitution   was   inappropriate   because    the

circumstances justifying removal were "not exclusively personal to [the


5
  In Ross, the Court concluded the substitution of an alternate for an ill
deliberating juror was permissible even though the jury had already
"deliberated for a significant period" and indicated it was deadlocked. 

218
N.J. at 152

.


                                                                        A-2118-16T2
                                       29
foreperson] and . . . affected the entire jury."      She contends the Court's

decision in Hightower "is directly on point and controls this case." We again

disagree.

      In Hightower, during deliberations in the penalty phase of a capital case,

a juror performed outside research, learned that the victim had three children,

and shared that information with other jurors. 

146 N.J. at 248-50

. While

questioning the jurors on this issue, the court also inadvertently learned the

jurors' positions on the merits of the case, and that the jury was at an advanced

stage of deliberations having made tentative determinations with respect to the

existence of all aggravating and mitigating factors. 

Id. at 249-50

. The court

chose to substitute the juror rather than declare a mistrial. 

Id. at 250-51

. The

reconstituted jury deliberated and returned a verdict of death. 

Id. at 251

.

      The Court reversed, finding error in the juror substitution because it

occurred for reasons that were not exclusively personal to the juror. 

Id. at 255

.

The juror's "misconduct was related to the case and to his interactions with the

other jurors." 

Ibid.

      Nevertheless,    the   Court   acknowledged     "there   might   be     some

circumstances in which juror misconduct during jury deliberations might

permit substitution of the offending juror." 

Ibid.

 In this regard, the Court

distinguished our holding in State v. Holloway, 

288 N.J. Super. 390

 (App. Div.



                                                                         A-2118-16T2
                                       30
1996), noting that in Holloway, although the juror substitution occurred due to

juror misconduct and after extensive deliberations, there was no objection to

the substitution, and the trial court found that the misconduct had not tainted

the remaining jurors. Hightower, 

146 N.J. at 256

. Under the different facts

presented, in Hightower, the Court concluded "the only option available" was

declaring a mistrial. 

Id. at 255-56

.

       In Holloway, the jury reported reaching a verdict. 

288 N.J. Super. at

397

.    When polled, however, one juror expressed disagreement with the

verdict, so the judge ordered the jury to continue deliberations.            

Ibid.

Thereafter, the objecting juror asked to speak with the court and told the judge

she had dinner the night before with a relative, who talked about a case

involving the defendant's brother, and indicated that he came from a good

family. The juror said this conversation helped her make a decision, although

she denied the conversation changed her mind. 

Id. at 397-98, 400-01

. She had

mentioned the conversation to the other jurors but had not discussed the

substance of the conversation with them. 

Id. at 398, 401-02

. When questioned

by the court, the other jurors confirmed that they did not know the substance of

the juror's conversation regarding the defendant's family. 

Id. at 402

.

       The prosecutor asked the judge to halt deliberations and remove the

offending juror.   

Id. at 398-99, 401

. The judge found the juror had been



                                                                         A-2118-16T2
                                       31
tainted by outside information she received from her relative, 

id. at 401,

substituted an alternate juror, and instructed the jury to begin deliberations

anew. 

Id. at 399, 401-02

. It returned a guilty verdict thereafter. 

Id. at 402

.

        We concluded the trial judge reasonably exercised his discretion in

dismissing the juror, because the "conversation with her relative, together with

her difficulty in the deliberative process, made her 'unable to continue' within

the context of Rule 1:8-2(d)." 

Id. at 404

. In language particularly relevant

here, we said: "A juror who has once disregarded the court's unambiguous

admonitions is just as likely do so in deciding the merits of the case as well."

Ibid.

        We also concluded that the juror's problem did not "stem[] from any

interaction in the jury room." 

Ibid.

 Rather, it "was personal and based on

improper outside influences, and the record amply demonstrate[d] that [the

juror] was unable to properly deliberate and fulfill her function as a juror. "

Ibid.

 (citing State v. Valenzuela, 

136 N.J. 458

, 472-73 (1994)). In this regard,

we said, "[r]emoval is appropriate where the record clearly indicates that any

taint ha[d] not infected the remaining jurors and no real or presumed harm

ha[d] been done." 

Id. at 404-05

.6


6
  In Jenkins, 

182 N.J. at 133 n.2,

 the Court disapproved of that part of our
holding in Holloway that permitted substitution after the jury had announced


                                                                         A-2118-16T2
                                       32
      This case has factual similarities and differences to both Hightower and

Holloway. Like Hightower, the foreperson here disclosed his outside research

to the other jurors, whereas in Holloway, the offending juror never disclosed

the substance of her conversations with her relative. But, unlike Hightower,

where the "[j]uror misconduct . . . cause[d] a substantial likelihood that one or

more jurors were impermissibly influenced" so as "to undermine the integrity

of a death penalty trial[,]" 

146 N.J. at 265,

 the judge here found, and the record

supports his conclusion, that the foreperson's research produced no taint. The

judge's voir dire of the other jurors confirms this.

      Furthermore, while in both Hightower and Holloway, the jury's

deliberations were advanced, here, the jury had been deliberating for only a

short period of time. Also, unlike both of those cases, the jury here was still

considering the evidence, as demonstrated by the playback of testimony that

continued after the jury was reconstituted. See, e.g., Williams, 

171 N.J. at

169-70

 (finding no error in substitution after three hours of deliberations and

while jury was requesting read-backs of testimony).

      Under these particular circumstances, we cannot find the judge

mistakenly exercised his discretion by removing the foreperson because of his

___________________
its verdict. The Court found that substitution at that late juncture would not
permit the reconstituted jury to truly deliberate anew.


                                                                         A-2118-16T2
                                        33
inability to continue with deliberations in light of his forbidden internet

research. We therefore also conclude that the judge did not err in denying

defendant's mistrial motion.

      Affirmed.




                                                                   A-2118-16T2
                                    34

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