NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this appeal, we consider and reject, among other things, defendant's argument that his conviction should be overturned because the trial judge failed to instruct the jury properly and because the jury's verdict was against the weight of the evidence.

On July 18, 2008, a Union County Grand Jury returned a four-count indictment charging defendant Stanley R. Bullock and co-defendant Ronald Tyrone Cooper with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault with a handgun, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four). The matter was tried before Judge James C. Heimlich and a jury. On November 13, 2009, the jury found defendant guilty of count one, second-degree aggravated assault, and not guilty on the remaining counts; it found co-defendant Cooper not guilty on all counts. Defendant's motion to overturn the verdict was denied, and defendant was sentenced by Judge Joseph P. Perfilio to six years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal ensued.

The evidence at trial revealed that on February 27, 2008, at approximately 8:30 p.m., shots were fired on the 600 block of Harrison Place, in Linden.

William Diaz, a Harrison Place resident, testified that he was watching television with his son when he heard an argument on the street. He looked out the window and observed a man and woman arguing with a third person roughly twenty-feet behind them. As Diaz started to watch television again, he heard three gunshots, and observed two males and a female running.

Howard Lee, another resident of Harrison Place, testified that as he was arriving home, he overheard a commotion and saw three people running down the street. While he attempted to unlock his front door, he heard two gunshots and called the police to report the gunfire. Lee testified he did not recognize any of the individuals whom he saw running. Lee had been acquainted with defendant for a number of years.

Roxanne Fair, also a resident of Harrison Place, testified she heard gunshots and people running outside her residence. Fair later discovered that her Ford Explorer truck had two bullet holes, neither of which existed prior to February 27, 2008.

Detective Kevin Mikolajczyk of the Linden Police Department responded to a complaint of gunshots. On his way to the reported location, Mikolajczyk observed a "[b]lack male jogging at a slow pace" wearing a grey hat, around Bower Street, one block northeast of Harrison Place. The jogger entered 1210 Bower Street while talking on a cell phone. Mikolajczyk reported his observation and established a perimeter around that Bower Street residence with backup officers.

Shortly thereafter, Carol Raymond exited the residence to ask "what was going on." Defendant followed Raymond to the door and was ordered by the police to exit the house, at which time he was secured. The officers entered the residence, and located a grey hat and cell phone on the living room table. Investigators later confirmed that the cell phone belonged to Janerette Starkey.

Starkey reported in a statement he gave to police on that date that he had been helping Diane Stevens move out of the house where she lived with defendant. Once defendant realized that Stevens was leaving, defendant "ran in the house and then came back . . . downstairs with a gun." Starkey explained that he and Stevens then left the house to drive around looking for Stevens' daughter after receiving a phone call reporting the daughter's location on Harrison Place. As Starkey and Stevens sat in the car, defendant approached and opened the driver's side door where Stevens was sitting. Starkey reported that from the passenger seat, he observed another man in the background approaching the vehicle. Once he observed the two men, Starkey got out of the car and "ran like hell." He said defendant chased after him and the other man started shooting, five or six times. Starkey was uninjured.

At trial, when asked to attest to the accuracy of the statement he had given the police on the day of the incident, Starkey said he could not remember anything since he had been drinking. He only recalled waking up the following morning with blood on his hands.

Starkey's statement had been taken by Detective David Kother of the Linden Police Department. During a Gross1 hearing, Kother testified that over the course of his employment as a police officer, he had dealt with individuals who were intoxicated, and Starkey was not intoxicated when he gave his statement. Starkey's statement was read into evidence, but was not physically given to the jury.

Diane Stevens also gave a statement to the police on the evening of the shooting. She retracted her statement at trial. She explained in her statement that following an earlier dispute between herself and defendant at her home, she and Starkey were in a car parked on Harrison Place trying to locate her daughter when "[a]ll of a sudden the door opened and [defendant] was screaming in the car." After opening the car door, defendant said to co-defendant Cooper "`[i]s that him?' . . . `Shoot that nigger, get that nigger.'" The statement further indicated that Starkey and defendant started running and shooting, without specifying who was shooting.

At trial, Stevens admitted giving the police a statement (1) that she saw defendant and Cooper on Harrison Place and (2) that a shooting occurred at that location. She claimed, however, that she did not see who used the gun, and she denied any suggestion in her statement that Cooper had fired the gun. Stevens acknowledged that she had two children with the defendant and was in a romantic relationship with him for fourteen years.

Defendant testified on his own behalf. He explained that when he arrived home from work on February 27, 2008, three men were with Stevens at their home, and one of the men pointed a gun at him.2 Defendant walked past the man who pointed the gun at him and approached Stevens to discuss her moving out. Defendant noticed a pickup truck in the driveway with furniture on the truck. He went upstairs and then came back, at which point the same man again directed the gun at him. Defendant and the man "had words." After the man left, the police arrived on the scene, questioned both defendant and Stevens; they asked Stevens to leave the premises without taking any more property. After she left, defendant began taking inventory of the property. He noticed a cell phone, which he believed belonged to his son, so he put the phone in his pocket.

Defendant testified that his friend, a bounty hunter, showed up at his home later that evening. The man who had previously pointed a gun at defendant subsequently arrived and the friend and the man began to "have words." As a result, the bounty hunter called the police. They came a second time and questioned defendant. Defendant then noticed the pickup truck from the earlier incident circling the block. Concerned, defendant left home and walked to Raymond's house on Bower Street. The police arrested defendant within seconds of his entering Raymond's house.

Defendant gave a statement to police after his arrest. The statement was not admitted into evidence, although portions of it were used during cross-examination to impeach defendant's testimony.

After the six-day jury trial before Judge Heimlich, defendant was found guilty of count one of the indictment, second-degree aggravated assault and not guilty on the remaining counts. Following his conviction, defendant filed a motion to overturn the jury verdict which the court denied. Following the imposition of sentence by Judge Perfilio, defendant filed his Notice of Appeal.

Defendant raises the following errors on appeal:

We have considered these arguments in light of the record and applicable law. We affirm.

I.

Defendant contends the trial judge erred by failing to provide the jury with instructions concerning the issue of identification. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Improper jury instructions on "matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997). However, where a defendant fails to object to challenged instructions as required under Rule 1:7-2, it will be presumed that the instructions were adequate. See State v. Macon, 57 N.J. 325, 333 (1971). Consequently, where no objection is made, we reverse only if the error is "clearly capable of producing an unjust result." R. 2:10-2. With respect to jury instructions, "plain error requires demonstration of `legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

"When identification is a `key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005) (quoting Green, supra, 86 N.J. at 291). "Identification is a key issue when `[i]t [is] the major . . . thrust of the defense.'" Id. at 326 (quoting Green, supra, 86 N.J. at 291). "The determination of [whether the omission of this instruction constitutes] plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Ibid.

In Green, the victim (and only eyewitness) was attacked at night by an assailant who remained behind her while they walked to a spot without much lighting, where he raped her. Green, supra, 86 N.J. at 291. Her initial description of the assailant was a man five inches shorter and thirty pounds lighter than defendant; it did not refer to defendant's chipped tooth, a detail she provided several months after the assault. Ibid. Based on these circumstances, the Court noted that there was no corroboration or forensic evidence so that the danger of a mistaken identification was "particularly significant." Ibid.

On the other hand, in State v. Copling, 326 N.J.Super. 417, 434 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000), where the State's proofs were a mixture of identification and circumstantial evidence, we held that "[g]iven the strength and sources of the circumstantial evidence, the issue of identification was not a key issue. Thus, a jury instruction specifically on identification was unwarranted." See also, State v. Williams, 404 N.J.Super. 147, 165-66 (App. Div. 2008) (finding no error in the trial court's failure to give a specific identification charge), certif. denied, 164 N.J. 189 (2010)).

Here, unlike Green, faulty eyewitness identification testimony was not the primary evidence against the defendant. Instead, defendant was identified by persons who were once acquainted with him, one of them is the mother of his children. In addition, as in Copling, the State's proofs are a mixture of circumstantial and identification evidence. Although the evidence of defendant's identity as the perpetrator was circumstantial, the evidence as a whole created strong inferences. First, defendant was in possession of Starkey's cell phone at the location where police apprehended him. Detective Mikolajczyk observed a "[b]lack male jogging at a slow pace" wearing a grey hat, nearby Harrison Place, when responding to the call that gunshots were fired on Harrison Place. When Mikolajczyk and the officers followed the jogger into 1210 Bower Street, defendant was identified, arrested and the officers located a grey hat and Starkey's cell phone.

Starkey explained in his statement to police that (1) defendant came downstairs with a gun when he was moving Stevens out of defendant's house; (2) that he and Stevens left defendant's house, drove around looking for Stevens' daughter and subsequently received a phone call that the daughter was on Harrison Place; (3) once at Harrison Place, defendant approached and opened the driver's side door where Stevens was sitting; (4) Starkey started running while defendant chased after him; and (5) a man with defendant, at defendant's urging, shot five or six times at Starkey. Although Starkey later denied the accuracy of these statements at trial saying he was too drunk to remember the evening, the weight and credibility of Starkey's statements was to be determined by the jury.

Similarly, Stevens' statement to the police identified defendant as the assailant. At trial, when questioned regarding the statement, the following exchange occurred:

The jury was left to determine the relevant credibility and accuracy of the witness's statements. Defendant denied that he was an actor in the incident, but "[g]iven the strength and sources of the circumstantial evidence," the trial judge's failure to give a specific identification charge was not plain error. Copling, supra, 326 N.J. Super. at 434. The issue of identification was not a key issue.

II.

Defendant also challenges the trial judge's instruction to the jury relating to his statement to the police at the time of arrest. The statement was not admitted into evidence but was used on cross-examination for impeachment purposes. Because defendant made no objection to the omission at trial, we review this claim pursuant to the plain error standard. R. 2:10-2; see State v. Savage, 172 N.J. 374, 387 (2002).

At trial, defendant testified that he gave a statement to the police because he was unaware of the charges against him. On cross-examination, the prosecutor used the statement to illustrate defendant's knowledge of the charges prior to giving his statement. The statement was also used on cross-examination to impeach defendant regarding whether he knew the victim, Starkey.

The judge's instruction as to the statement was as follows:

The charge was given in recognition of the conflict between defendant's statement and his in-court testimony. The jury was properly instructed as to how it should take into consideration the evidence presented. There were no objections to the charge, and defendant has not carried his burden of demonstrating that there is a clear error affecting his substantial rights or that the charge was confusing.

III.

Contrary to defendant's argument on appeal, the trial judge did not have an independent obligation to charge the jury on simple assault as the lesser-included offense of aggravated assault. Defendant did not request that charge or object to its exclusion. The Supreme Court recently summarized a trial judge's sua sponte obligation to charge lesser-included offenses as follows:

At trial, the judge indicated to defense counsel that he would instruct the jury on simple assault if requested. Co-defendant's counsel did not wish for the charge to be included and stated at trial that "given the fact that we're denying my client's presence at the scene and given the reality of the situation, I don't see where it applies." Likewise, defendant's counsel conceded that "simple assault" was not relevant to the case, so an instruction was unnecessary.

Third-degree aggravated assault involves "significant bodily injury," N.J.S.A. 2C:12-(b)(7); second-degree is to cause "serious bodily injury," N.J.S.A. 2C:12-(b)(1); and simple assault is to cause "bodily injury," N.J.S.A. 2C:12-1(a). The trial judge explained to the jury its option of finding defendant guilty of a lesser-included offense, such as third-degree aggravated assault, yet the jury found defendant guilty of second-degree aggravated assault, attempt to cause serious bodily injury. The jury had the option to convict defendant of attempt to cause "significant bodily injury" and declined to do so. Nevertheless, defendant insists that since he was acquitted of all possessory weapon offenses and the attempted aggravated assault with a weapon charge, the jury could have found that defendant's attempt was to cause less than "serious bodily injury."

Recognizing the jurors' ability to accept portions of the State's and defendant's evidence, we cannot conclude that the crime of simple assault was clearly indicated. For example, in State v. Harris, 357 N.J.Super. 532 (App. Div. 2003), we found the lesser-included offense of simple assault was "clearly indicated" where a defendant, charged with robbery and burglary, assaulted officers after he was detained since a jury could have reasonably inferred that the defendant was no longer committing a theft when he struck the officers. Id. at 541.

Unlike Harris, the evidence here illustrates that Starkey was being threatened with serious bodily harm or death and not simple bodily harm. Kother, who took Starkey's statement on the night of the alleged incident, read to the jury that statement which stated, in pertinent part: "When [defendant] opened the door he was pointing at me saying that's him, kill him, kill him. I looked at his eyes and saw that he was looking behind the car and I saw two other guys coming." In addition, shots were fired at Starkey, as he fled; bullet holes were found in Fair's truck.

There must be "`a rational basis in the [record] to support'" an acquittal on the greater offense and a conviction on the lesser-included offense before the jury can be charged with the included crime. State v. Ruiz, 399 N.J.Super. 86, 96 (App. Div. 2008) (citation omitted). In such instances, the "trial court has an independent obligation to" charge the lesser-included offense. State v. Jenkins, 178 N.J. 347, 361 (2004). Given the evidence in this case, there was no such rational basis to acquit on second-degree aggravated assault, but to support a conviction on simple assault. Therefore, the court's failure to instruct the jury on simple assault was not "clearly capable of producing an unjust result." R. 2:10-2.

IV.

Finally, the jury's verdict was not against the weight of the evidence. In support of this argument, defendant first claims that the victim, Starkey, never made an independent identification of defendant as the assailant. The judge charged the jury that:

Despite the lack of identification evidence, the circumstantial evidence was sufficient to support the jury's verdict since (1) the police recovered Starkey's cell phone from the location where defendant was apprehended; (2) Starkey identified defendant on February 27 only to recant during trial by asserting he was too drunk on the night of the incident to remember anything; (3) Mikolajczyk observed a "[b]lack male jogging at a slow pace" near Harrison Place and the police recovered a grey hat at the location where defendant was arrested; and (4) Stevens and defendant, on February 27, had a verbal dispute at their home concerning her moving out.

Second, the different recollections of the witnesses regarding defendant's exact words did not support a mistrial. Stevens recalled in her statement that defendant yelled "shoot that nigger, get that nigger," to a man with a gun, and Starkey's account was that defendant yelled to the man with a gun, "kill him, Tyrone, kill him." This was an issue of fact for the jury to decide as to the credibility of each statement.

Next, defendant urges that Lee's testimony exonerates him. Lee, who was familiar with defendant, testified he was unable to identify any of the individuals that he saw running past his house. Quite simply, as the issue was explored further, "[Lee] did not look at them. [Lee] did not recognize them." Lee did not testify that defendant was not one of those individuals, and we do not find this argument convincing.

Finally, in denying defendant's motion to overturn the jury verdict, the judge observed that (1) there were numerous witnesses who indicated that a shooting had occurred; (2) Stevens and Starkey identified defendant as the person who opened the door to the car which she and Starkey were in; and (3) "bullets were found in the car in which . . . Starkey was standing." Great deference must be paid to the verdict rendered by a jury. State v. Afanador, 134 N.J. 162, 178 (1993). "A conviction will not be reversed unless the jury verdict clearly and convincingly constitutes a miscarriage of justice." State v. LaBrutto, 114 N.J. 187, 207 (1989) (citing R. 2:10-1, R. 3:20-1). Here, there is no clear and convincing showing of a miscarriage of justice that would require a new trial.

We find defendant's remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.