NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Carlos Rodriguez was charged in Essex County Indictment No. 11-09-01633 with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), following the tragic death of his former girlfriend, Jennifer Riley. Tried to a jury, defendant was acquitted of manslaughter but found guilty of second-degree aggravated assault. On April 19, 2013, defendant was sentenced to an eight-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. We reverse, agreeing with defendant's argument that it was plain error not to charge the lesser-included offense of third-degree aggravated assault.

I.

The following are the most pertinent facts drawn from the trial record. Riley and defendant spent New Year's Eve, 2010, attending separate gatherings with friends and family at their respective homes. Around 12:30 a.m. on January 1, 2011, Riley left to attend a party at a friend's house. She and her friend then went to another party around 2:30 a.m. Upon their arrival, her friend told others present at the second party not to serve Riley any more alcohol because she was intoxicated.

Defendant arrived around 4:00 a.m. to pick up Riley. Riley's friend escorted her to defendant's car, and checked with defendant to ensure that "he was okay to drive." Defendant then drove Riley to the basement apartment of the Newark home that he shared with his parents and sister, who lived upstairs.

Defendant testified that when he picked up Riley she was drunk. Upon arriving home, he noticed that Riley had a large bottle of liquor in her purse. The bottle was half-empty, and defendant and Riley consumed some more of it at defendant's home.

According to defendant, Riley was angry because he was not with her when "the ball dropped," and she questioned whether he had been with another girl. Riley pushed defendant against a closet and began hitting him. Defendant reacted by smacking Riley "pretty hard" with an open hand. After Riley hit him back, defendant then tried to hold her, grabbed her by the hair, and attempted to calm her down. The pair then continued to hit each other until they both wound up on the floor.

Riley got up and walked to the bathroom. When she returned, she asked defendant to roll a marijuana "blunt," which they then smoked together. Riley stated that she felt sick, and began throwing up phlegm and saliva. She then laid down on the bed. A short time later, defendant joined Riley on the bed and noticed that she was not moving or breathing.

Defendant testified that he "flipped out" and pulled Riley off the bed and began shaking and slapping her in an effort to awaken her. He then went upstairs to his parents, who summoned medical help. Paramedics arrived and unsuccessfully attempted to revive Riley before transporting her to the hospital, where she was pronounced dead at 7:03 a.m. Defendant stated that he told the paramedics "that we were arguing, we were drinking and we had an altercation." According to defendant, he never intended to cause Riley any serious or significant harm. He also claimed to have sustained scratches on his face and bruises on his arms and chest as a result of his altercation with Riley.

Defendant's sister testified that when she entered the basement apartment she observed Riley laying on her back on the floor, not breathing. Defendant stated that he and Riley got into an argument. His sister then administered CPR before the ambulance personnel arrived. While doing so, she observed the odor of vomit "a little bit," and that Riley had a black eye.

Paramedic Andrew Koehler arrived at the scene and found Riley unconscious and unresponsive. He noted bruising on the left side of her face. Defendant gave "varying stories" about what caused her condition, including that she had been drinking, vomiting, and choking. Defendant denied that Riley had suffered any trauma.

Sharon Pagan and Eduardo Padilla, nurses at Clara Maass Hospital, both testified as to their observations of Riley's body and their conversations with defendant. Pagan noted a bruise to Riley's right eye. Defendant informed Pagan that he and Riley had an argument and that he pushed her. Padilla observed that Riley had a left orbital contusion and a bruise to her left forearm. Defendant told him that "they had hung out and started drinking and then smoke[d] some weed then he went to the bathroom [and] when he came out [Riley] [was] already unconscious."

The State's expert forensic pathologist, Dr. Alex Zhang, performed an autopsy on Riley and testified as to his findings. He identified a number of injuries that Riley sustained on the back of both hands, forearms, left shoulder, and left arm, as well as multiple head injuries. Zhang concluded that Riley died from blunt force trauma of the head and face. He further indicated that the subdural hematoma on Riley's head could have been caused by hitting her head on something or by an open-handed strike. These head injuries also could have resulted in nausea and vomiting. However, Riley's stomach was empty and Zhang found no vomiting material in her airway. Zhang noted there was alcohol in her system. According to Dr. William Dunn, the State's expert toxicologist, Riley's blood alcohol level was.157 percent. Dunn found no evidence of marijuana use.

Detective Bobby Bullock of the Newark Police Department took a recorded statement1 from defendant after advising him of his Miranda2 rights. Bullock was accompanied by Detective Anthonio Rua of the Essex County Prosecutor's Office. According to Rua, defendant "stated that they were both fighting, he was hitting her, she was hitting him but he never said he tried to get away from her." Although defendant claimed that Riley had struck him hard around his right eye, neither detective observed any visible injuries on defendant's face or arm. Also, the officers did not see or smell any vomit at the crime scene.

Following summations by counsel, the judge charged the jury on aggravated manslaughter, as well as its lesser-included offense of reckless manslaughter. The judge also instructed the jury on second-degree aggravated assault (serious bodily injury), and simple assault as a lesser-included offense. The jury acquitted defendant of both aggravated and reckless manslaughter, but convicted him of second-degree aggravated assault.

II.

Defendant presents the following arguments on appeal:

We address these arguments in turn.

A.

Because defendant did not challenge the court's failure to instruct the jury on the lesser-included offense of third-degree aggravated assault (significant bodily injury) at trial, we review his argument under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

A trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361. On the other hand, the judge has no duty to give a lesser-included offense instruction sua sponte "if the evidence does not clearly indicate or warrant such a charge." State v. Thomas, 187 N.J. 119, 132 (2006) (alterations omitted) (quoting State v. Savage, 172 N.J. 374, 401 (2002)); see also N.J.S.A. 2C:1-8(e) ("The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.").

The rationale for imposing such an independent obligation on the trial judge is that "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L. Ed. 2d 1204 (2004). The danger of prejudice to a defendant that may result from a trial judge's failure to charge a lesser-included offense to the jury is that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973)). In Jenkins, supra, 178 N.J. at 361, the Supreme Court noted that, "because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error."

Here, at the charge conference, the court stated "I believe we include [defense counsel's] request, lesser included on assault." Later on, in discussing the order in which the charges would be presented to the jury, the court advised that "we go to aggravated manslaughter and reckless man[slaughter], ag[gravated] assault, simple assault, then simple reckless. . . ." Neither party objected. In its final charge, the court instructed the jury with respect to second-degree aggravated assault, as well as simple assault as a lesser-included offense. Again, neither party objected or requested a third-degree aggravated assault charge as a lesser-included offense.

The indicted charge, second-degree aggravated assault, required that defendant "did purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life cause or attempt to cause serious bodily injury to Jennifer Riley." See N.J.S.A. 2C:12-1b(1). "Serious bodily injury" is defined as a "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. Among other terms, the judge defined "purposely" and "knowingly." The jury was instructed that:

The judge further instructed that "[a] person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result."

In contrast, third-degree aggravated assault requires only "significant," as opposed to "serious," personal injury. N.J.S.A. 2C:12-1b(7). "Significant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d. Except for this lesser degree of injury, the third-degree offense, and its requisite mens rea, mirrors the second-degree crime of aggravated assault under N.J.S.A. 2C:12-1b(1). Therefore, the sole question remaining is whether the judge was required sua sponte to charge it as a lesser-included offense. From our review of the record we conclude that "the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361.

In the present case, the distinction between the two levels of aggravated assault takes on added significance when viewed in the context of the jury deliberations. During the course of those deliberations, the jury sent out a series of questions that focused on defendant's intent or state of mind. Importantly, with respect to the manslaughter charge, the jury asked: "Are we able to charge/find defendant guilty of a charge that includes causing the death but does not include recklessness or extreme indifference to [the] value of human life?" The court was also asked to "reread the definition of reckless manslaughter" and to "emphasize [the] definition of [the] recklessness element." Later, the jury requested that it be re-read the definition of aggravated assault.

Like aggravated manslaughter, of which defendant was acquitted, second-degree aggravated assault requires that a person act recklessly "under circumstances manifesting extreme indifference to the value of human life." Alternatively, to be guilty of second-degree assault, defendant must have acted with the purpose or intent to cause Riley "serious bodily injury." Here, the facts adduced at trial clearly indicate that a jury could have found that defendant only acted with the purpose or intent to cause Riley "significant bodily injury" while acquitting on the "serious bodily injury" charge.

Simple assault is a disorderly persons offense. N.J.S.A. 2C:12-1a(1). It merely requires defendant to have purposely or knowingly attempted to cause or purposely, knowingly, or recklessly actually caused bodily injury to Riley. "`Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. The judge found a rational basis in the evidence to allow the simple assault charge as a lesser-included offense. N.J.S.A. 2C:1-8e. Neither party objected to its inclusion in the final charge. It logically follows then that the evidence also "clearly indicates" a basis for conviction on the intermediate level aggravated assault for "significant bodily injury."

We conclude that the judge was obligated to sua sponte charge the jury on third-degree aggravated assault. The failure to do so here constitutes reversible error warranting a new trial.

B.

In her closing argument the prosecutor told the jury, "[Defense] counsel neglected to tell you that self-defense, if you have an opportunity to retreat, you retreat. You don't still engage in whatever it was that went down in that basement apartment." Citing N.J.S.A. 2C:3-4, defendant contends that this was a misstatement of the law governing self-defense, and that there is no duty to retreat where the actor uses non-deadly force. Accordingly, defendant seeks reversal of his conviction on this basis. The State concedes that the prosecutor's comment was inaccurate. However, it argues that in the absence of a defense objection there was no plain error, given the "fleeting nature" of the remark when viewed in the context of the summation as a whole, and the court's accurate jury instructions on self-defense.

"To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Harris, 181 N.J. 391, 495 (2004) (alterations omitted) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). See also State v. Ingram, 196 N.J. 23, 43 (2008). This standard is a "fair trial test." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed. 2d 89 (2001). Where there is no objection to the prosecutor's statements at trial, defendant cannot prevail without showing plain error — error clearly capable of prejudicing defendant's right to a fair trial. Id. at 576-77. A failure to object is relevant to the fair trial standard in two ways. It "indicates that defense counsel did not believe the remarks were prejudicial at the time," and it "deprives the court of the opportunity" to address and cure the error injected by the prosecutor's deviation from his or her duty "to ensure that justice is achieved." Id. at 576 (quoting State v. Long, 119 N.J. 439, 483 (1990)).

Standing alone, we do not conclude that the prosecutor's isolated comment mandates reversal. In any event, since we have seen fit to remand for a new trial on other grounds, and the prosecutor's comment was concededly erroneous, we caution that it should not be repeated on re-trial.

Reversed and remanded for a new trial.