NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

A jury found defendant Zeyad T. Salih not guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). The judge sentenced defendant to a three-year term of probation subject to specified conditions.

Defendant appeals and presents one argument that was not raised at trial:

Defendant and the victim of the assault, Najatee Alnaqeeb, recently emigrated from Iraq. A charitable organization arranged for them to share an apartment in Haddon Heights. Prior to living together, the men did not know one another. Defendant was thirty-nine years old, and Alnaqeeb was seventy-six.

Defendant was the first to report the incident that ultimately led to the charges against him. He went to the Haddon Heights Police Department, where he spoke with Patrolman Jason Volpe shortly after two o'clock in the afternoon. Defendant told Volpe that his roommate, Alnaqeeb, had held a knife to his throat, which led to a struggle. He also reported that Alnaqeeb hit him in the face with a tea cup after that struggle.

Volpe photographed defendant's facial injuries and summoned emergency medical services. Although defendant had scratch marks on his right cheek and the photographs also depict a cut on his lower lip and a small red mark on his chin, he declined medical care. Based on defendant's report, Volpe initially charged Alnaqeeb with simple assault.

After speaking with defendant, however, Volpe went to the apartment to investigate. Alnaqeeb was not there when he arrived, but he returned to the apartment about fifteen minutes later. With the assistance of a neighbor who was able to communicate with Alnaqeeb in his own language, Volpe spoke to Alnaqeeb. He allowed Volpe to come inside. Volpe did not see a knife, tea cup or any sign of a struggle.

Volpe did, however, notice Alnaqeeb "wincing in pain," and Alnaqeeb complained to him about pain in his lower back. Accordingly, Volpe summoned emergency medical services again. Volpe was present when photographs depicting bruising on Alnaqeeb's "right flank," the area near his right shoulder blade, and his upper right leg were taken. At that time, Volpe decided to charge defendant.

Alnaqeeb accepted medical care and was taken to Cooper Hospital and admitted. A CAT scan reflected a fracture of Alnaqeeb's L-I vertebrae, which the doctors decided to treat with pain medication and physical therapy, rather than surgery.

Alnaqeeb and defendant each gave his version of the incident at trial. By Alnaqeeb's account, defendant broke through the door to his bedroom while he was sleeping, kicked his lower back, threatened to kill him and left the apartment. His lower back hurt, and he went outside to look for the police but did not find assistance. Accordingly, he returned to the apartment and encountered Volpe.

Defendant's account was quite different, and it was consistent with the description of the incident he gave to Volpe the day it occurred. According to defendant, Alnaqeeb came into the kitchen while defendant was cooking. Speaking nervously, Alnaqeeb said something defendant did not understand and put a knife to defendant's neck. Defendant managed to grab and twist Alnaqeeb's hand, causing him to drop the knife, and he then pushed Alnaqeeb away. Alnaqeeb responded by hitting defendant in the face with a tea cup, and defendant pushed him again, this time causing Alnaqeeb to fall backwards into a chair. When Alnaqeeb reached for the knife on the floor, defendant pushed him a third time. He then left and went to the police station.

On that evidence, the jury found defendant not guilty of causing or attempting to cause "serious bodily injury" to Alnaqeeb but guilty of causing Alnaqeeb "significant bodily injury."

As previously noted, the only issue raised on appeal concerns Volpe's testimony explaining why the police "decided to charge [defendant] with `simple assault' and then upgrade the charge to `aggravated assault.'" The argument rests on three brief portions of the patrolman's testimony.

The prosecutor asked Volpe what he did after speaking with Alnaqeeb, and Volpe said he took down the information and filed a report. Following up, the prosecutor asked: "Did you perfect any charges against [defendant] at that time." And Volpe said, "Yes." The prosecutor then asked: "What did you charge him with at that time?" And Volpe responded, "Simple assault."

Subsequently, the prosecutor asked Volpe, "after having received [Alnaqeeb's] medical records, and after having conducted the interview with the translator, did you make a charging decision, with respect to defendant?" There was no objection, and Volpe responded, "Yes." The prosecutor then asked: "What did you do?" Volpe responded, "We upgraded the charge to aggravated assault, due to his medical records showing that he had a fractured spine, I believe — lower back." Again there was no objection.

On redirect, the prosecutor again asked Volpe if he made the charging decision after receiving medical information and speaking to Alnaqeeb, and Volpe said, "Yes." The prosecutor followed up by asking a question emphasizing the prior one: "So you had the benefit of [Alnaqeeb's] version of the events, and you had the benefit of understanding what the injuries were?" Volpe answered the leading question affirmatively.

Defendant's objection to this line of questioning by the prosecutor is that it effectively conveyed the impression that, in Volpe's opinion, the charges had merit. If for no reason other than the fact that the timing of and basis for a charge filed by an officer is generally irrelevant, one might infer that the prosecutor intended to convey the impression that Volpe believed the charges were supported by the evidence.

There is no question it is improper for a prosecutor to question an investigating officer or an expert in a manner designed to elicit his or her opinion on a defendant's guilt or innocence. State v. McLean, 205 N.J. 438, 453-55 (2011). But there was no objection in this case, and, for that reason, the question for this court is whether the questions posed or answers given amounted to plain error — that is, error clearly capable of producing an unjust result and warranting intervention in the interests of justice. R. 2:10-2.

Generally, the absence of an objection at trial leads reviewing courts to conclude that the improper questioning or testimony is not sufficiently prejudicial to be clearly capable of producing an unjust result. State v. Walker, 203 N.J. 73, 89-91 (2010). That conclusion is well-warranted in this case. If the prosecutor was attempting to convey the patrolman's opinion on the evidence it was a very subtle attempt. In our view, too subtle to be understood as providing an opinion on guilt and more likely to be understood as providing an opinion on the adequacy of the evidence of serious injury to support a charge that requires proof of serious or significant injury.

It is difficult to imagine that jurors would be any more likely to be influenced by the fact that an officer decided to upgrade a charge after learning that the putative victim had a fracture as well as bruises than they would be by learning that a charge was changed from attempted murder to murder after a putative victim died.

The passages quoted and their prejudicial capacity must be considered in the context of the evidence. After all, defendant reported the incident and the police initially charged Alnaqeeb, a fact that defense counsel pointed out in his opening statement. Moreover, the State argues defense counsel made the same point when he cross-examined Volpe.

Viewing the passages of Volpe's testimony in context, we recognize that none of the testimony contained any direct expression of opinion or reference to the elements of the various forms of assault, and we are confident the questions and responsive answers conveyed or suggested no information established by competent evidence adduced at trial. Therefore, we are convinced that the outcome of this trial was in no way influenced by impermissible lay opinion that invaded the province of the jury. McLean, supra, 205 N.J. at 461.

We have considered defendant's claim that a question posed by the deliberating jurors indicated that they were "deferring to the police decision to charge defendant Salih with assault." That argument is premised on a reading of the jurors' question that is too strained to warrant any discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.