State of New Jersey v. Ryan G. Mwangi

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2889-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. RYAN G. MWANGI, Defendant-Appellant. ______________________ Argued September 16, 2026 – Decided October 6, 2026 Before Judges Puglisi and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 19-08-2286. Alison Gifford, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Alison Gifford, of counsel and on the brief). Matthew E. Hanley, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Matthew E. Hanley, of counsel and on the brief). PER CURIAM Defendant Ryan G. Mwangi appeals his convictions and sentence for murder and unlawful possession of a weapon. He requests this court reverse his convictions, or alternatively, remand for resentencing. For reasons that follow, we affirm defendant's convictions but vacate the sentence for insufficient reasoning and remand for resentencing consistent with the principles expressed in State v. Fuentes, 217 N.J. 57 (2014) and State v. Torres, 246 N.J. 246 (2021). I. On May 13, 2019, Kenneth Thomas was shot and killed while sitting in his car. Thomas's uncle, Dwayne Gainer, was parked nearby on the same street and heard gunshots, looked up, and saw a man firing into Thomas's car at close range. Although he did not see the shooter's face, Gainer saw a person he believed to be the shooter enter the passenger side of a black BMW, which then fled the scene. Gainer gave police a statement that day, describing the shooter as at least six feet tall, of average build, and wearing a gray sweatshirt or hoodie and dark pants. Sergeant Michael DiPrimio of the Essex County Prosecutor's Office responded to the scene and obtained surveillance footage from a nearby residence. The footage showed Thomas's vehicle and a black BMW parked across the street shortly before the shooting. The footage did not capture the 2 A-2889-24 actual gunfire. The next day, Newark police located a black BMW that Sergeant DiPrimio identified as the same vehicle based on distinctive markings, including a rear-window decal. Police learned the BMW had been reported stolen earlier on the day of the shooting. Law enforcement subsequently obtained and reviewed additional surveillance footage from multiple locations, which Sergeant DiPrimio then compiled. The footage showed a blue Jeep and the black BMW traveling together before the shooting. It showed the BMW parked near the scene shortly before the homicide and then two men exiting minutes after the shooting, from the spot where it was found by police the following morning. One man wore a red hooded sweatshirt, dark pants, and white sneakers. The other man wore a gray hooded sweatshirt, gray sweatpants, and gray and teal sneakers. The footage showed the two men walk away, enter a restaurant, and then leave in the blue Jeep. A week later, Sergeant DiPrimio spotted the blue Jeep and ran the plate, leading him to Ibn Dortch. DiPrimio approached Dortch, obtained identifying information, and learned Dortch had driven the Jeep. After towing the Jeep, police recovered fingerprints from its exterior matching Dortch's. 3 A-2889-24 Further investigation led police to charge Jakim Ward as the driver of the BMW. His case was later severed for trial. Police obtained communications data warrants for phones associated with Dortch, Ward, and later, defendant. Sergeant DiPrimio also interviewed Constance Bowles, who was defendant's girlfriend and pregnant with his child. During that interview, he showed Bowles surveillance footage and a still photograph depicting one of the men walking away from the BMW. Bowles said the person in the gray sweatsuit "looks like [defendant]." At the Sergeant's request, she wrote words to that effect on the still image and signed it. At trial, Bowles testified, acknowledging the interview and the signed photograph. She also identified defendant in court. In late June 2019, Gainer gave a second statement. Police showed him surveillance clips and still photographs from the scene of the shooting. Gainer wrote on the photos that he recognized the person shown as the shooter based on clothing and body structure. Police also showed Gainer a six-photo array that included defendant. Gainer made no identification from the array. An Essex County grand jury indicted defendant, Dortch, and Ward with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11- 3(a)(l) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count 4 A-2889-24 three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Before trial, the State offered FBI Special Agent John Hauger as an expert in historical cell-site analysis. The court conducted a N.J.R.E. 104 hearing on the defense's motion to exclude Agent Hauger's testimony. Agent Hauger's report included an analysis of call detail records for two phones, one associated with defendant and another associated with Dortch. Hauger prepared maps showing cell towers, sectors, and the times the phones used those sectors. He explained how historical cell-site analysis works, stating that he relied on call detail records and provider-supplied cell-site locations. He also described the method's limitations. He testified he could not determine a phone's exact address, only its general location based on the tower and sector it used. He further explained that providers record only certain data points and that a phone may connect to the strongest or clearest tower, not always the nearest one. Further, Hauger testified he had neither performed drive testing nor obtained provider propagation maps. He acknowledged both tools are relevant to determining actual coverage. Nevertheless, he maintained his analysis 5 A-2889-24 focused on the phone's use of identified sectors and the direction of those sectors, not a precise coverage radius. The court denied the motion to exclude, finding historical cell-site analysis was generally accepted and sufficiently reliable for the limited purpose of showing the general location of a phone at relevant times. At trial in January 2024, Hauger repeated the limits of his analysis. He testified defendant's phone used sectors at various locations near the site of the shooting shortly before and then at other locations near where the BMW was located after the shooting. He then testified that Dortch's phone used sectors near some of the same locations around the same time periods. He told the jury "the actual coverage area varies from tower-to-tower," acknowledging he could not give "a distance or a range on anyone of them because we don't know where it begins and ends." He testified again that each tower "has its own coverage area" and that he could not say "how far each one of them reaches." Maps from his report and the report itself cautioned that the shaded sector areas did "not depict the actual RF 1 footprint or coverage area." 1 Radio frequency. 6 A-2889-24 On January 26, 2024, the jury acquitted defendant of conspiracy but convicted him of murder, unlawful possession of a handgun, and possession of a weapon for an unlawful purpose. The jury acquitted Dortch of all charges. At sentencing in September 2024, the court imposed life imprisonment on count two, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent ten-year term with five years of parole ineligibility on count three as merged with count four. On appeal, defendant raises six arguments. POINT I THE STATE'S EXPERT OFFERED INADMISSIBLE NET OPINION TESTIMONY AND DEMONSTRATIVE MAPS CONCERNING THE LOCATION OF [DEFENDANT]'S CELL PHONE. A. Expert Testimony About Cell Phone Location Must Be Based On Verified Distance Estimates. B. The Expert's Maps Were Inadmissible Under Rule 403. C. The Erroneously Admitted Evidence Requires Reversal Of [Defendant]'s Convictions. POINT II REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT GAVE A CONFUSING AND MISLEADING 7 A-2889-24 INSTRUCTION ABOUT BOWLES'S ALLEGED IDENTIFICATION OF [DEFENDANT] IN THE SURVEILLANCE FOOTAGE. (Partially raised below) POINT III THE TRIAL COURT'S FAILURE TO DEFINE KNOWLEDGE FOR THE JURY REQUIRES REVERSAL OF [DEFENDANT]'S CONVICTIONS. (Not Raised Below) POINT IV DEFENDANT WAS DENIED A FAIR TRIAL BY IMPROPER OFFICER TESTIMONY THAT VIOLATED DEFENDANT'S CONFRONTATION RIGHTS AND CREATED THE INESCAPABLE INFERENCE THAT POLICE POSSESSED EXTRA EVIDENTIARY EVIDENCE OF DEFENDANT'S GUILT. (Not Raised Below) POINT V THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Not Raised Below) POINT VI A REMAND FOR RESENTENCING IS REQUIRED BECAUSE [DEFENDANT]'S LIFE SENTENCE IS EXCESSIVE, AND THE COURT FAILED TO EXPLAIN THE REASONS FOR ITS IMPOSITION. We apply different standards of review to the issues defendant raises. The standard for evidentiary rulings, including the admission of expert testimony 8 A-2889-24 and demonstrative exhibits, is abuse of discretion. In re Accutane Litig., 234 N.J. 340, 392 (2018). We defer to the trial court unless the ruling was "'so wide of the mark' that it constitutes 'a clear error of judgment.'" State v. Garcia, 245 N.J. 412 , 430 (2021) (quoting State v. Medina, 242 N.J. 397 , 412 (2020)). N.J.R.E. 702 and N.J.R.E. 703 govern expert testimony. The net opinion rule, a corollary of Rule 703, bars an expert from offering a conclusion unsupported by factual evidence or other data. State v. Burney, 255 N.J. 1 , 23 (2023); Townsend v. Pierre, 221 N.J. 36, 53-55 (2015). Generally, we review jury instructions de novo. Fowler v. Akzo Nobel Chemicals, Inc., 251 N.J. 300 , 323 (2022). However, when a defendant did not object to the final charge, we review for plain error. R. 2:10-2. We reverse only if the error was clearly capable of producing an unjust result. State v. Montalvo, 229 N.J. 300, 321 (2017). That standard also governs unobjected-to testimony challenged for the first time on appeal. See R. 2:10-2. Cell-site Testimony and Demonstrative Maps Defendant contends Agent Hauger, like the expert in Burney, offered an unsupported estimate of tower range and then used that estimate to place defendant near the crime scene. The record does not support that claim. 9 A-2889-24 In Burney, the expert, FBI Special Agent Ajit David, testified the relevant tower had an approximate one-mile radius, based that figure on a personal "rule of thumb." 255 N.J. at 5. He then used that estimated radius to place the defendant's phone at or near the robbery scene. Id. at 24-25. The Court held Agent David's testimony inadmissible because it rested on a personal approximation unsupported by data or testing. Id. at 25. This case differs in a critical respect. Hauger did not assign a specific radius to any tower. He did not tell the jury a tower covered one mile, two miles, or any other fixed distance; nor did he claim he knew where any sector began or ended. He said the opposite. At trial, when asked, "how far out does each signal go?" Hauger answered that coverage "varies from tower-to-tower" and he could not give a "distance or a range on anyone of them because we don't know where it begins and ends." On cross-examination, Hauger repeated that each tower has its own coverage area and he could not tell "how far each one of them reaches." Those statements did not present the kind of quantified, personal estimate forbidden by Burney. The report used at trial reinforced those limits. It stated that the shaded sectors did not depict "the actual RF footprint or coverage area of the particular sector." 10 A-2889-24 That disclaimer conveyed to the jury, in plain terms, that the maps were not coverage maps. The Rule 104 hearing confirms the same point. Agent Hauger acknowledged he had not conducted drive testing and had not obtained provider propagation maps. He also acknowledged actual coverage could vary with tower-specific and environmental conditions. That testimony exposed the method's limitations—it did not conceal them. Defendant emphasizes Hauger's testimony that a phone is "somewhere in between those lines" when it uses a particular sector. Read in isolation, that phrase is imprecise. Read in context, however, it does not transform the testimony into a forbidden net opinion. Hauger used the lines to show sector orientation and direction. He did not tell the jury the phone had to be within a proven wedge-shaped area of known size. He repeatedly denied he could do that. We also reject defendant's separate challenge to the maps under N.J.R.E. 403. The maps had probative value. They showed tower locations, sector directions, and the precise times the phones used those sectors. They helped the jury understand a subject beyond the knowledge of the average juror. Their risk of undue prejudice did not substantially outweigh that value because the report 11 A-2889-24 expressly warned that the shaded sectors were not actual coverage areas, and Agent Hauger explained those limits to the jury. The defense also had full opportunity to cross-examine Agent Hauger. Counsel did so at length, eliciting that Hauger had not performed drive testing, had not obtained propagation maps, and could not say how far any sector actually extended. That cross-examination exposed the precise limits defendant now emphasizes on appeal. We discern no abuse of discretion in the admission of Agent Hauger's testimony or maps. Even if we assumed some aspect of the presentation was excessive, any error was not clearly capable of producing an unjust result. The State's case did not rest on cell-site proof alone. The jury saw surveillance footage tracing the black BMW and blue Jeep before and after the shooting. Bowles testified the person in the gray sweatsuit in the footage looked like defendant. Gainer identified the shooter's clothing and body structure from the stills. The jury also heard about the pattern of phone calls among the participants. Additionally, the jury acquitted defendant of conspiracy and Dortch on all counts. Those mixed verdicts reflect the jury evaluated the evidence carefully and did not simply adopt the State's case wholesale. The Identification Charge 12 A-2889-24 Defendant next challenges the jury charge concerning Bowles's identification. The issue arose at the charge conference. Defense counsel objected to any instruction that told the jury Bowles had identified defendant in the surveillance footage. Counsel argued Bowles had only said the person "looks like" defendant. The prosecutor agreed the charge should not say Bowles identified defendant as the person who committed the offense. The court stated it would tailor the instruction. The court then charged the jury as follows: The State has presented the testimony of Constance Bowles. She identified [defendant] in court. You will recall that the witness viewed a still photograph on a prior occasion and indicated, "It looks like Ryan Mwangi." . . . According to the witness, her identification of the defendant was based upon her observations of the photographs. It is your function to determine whether the witness's identification of the defendant is reliable and believable, or whether it is based on a mistake or for any reason is not worthy of belief. The court also gave the model jury instruction on in-court and out-of-court identifications, including general discussions of memory, stress, duration, lighting, time elapsed, lineup composition, fillers, multiple viewings, and showups. 13 A-2889-24 In reviewing the charge, we agree it was not perfect. Bowles was not an eyewitness to the shooting. Some parts of the standard identification charge did not mesh with her testimony. However, because defendant did not object after the final charge, we review for plain error only. Viewed as a whole, the charge did not mislead the jury in a manner clearly capable of producing an unjust result. The court expressly reminded the jury that Bowles had said only, "It looks like [defendant]." The court told the jury it had to decide whether her statement was reliable, believable, or mistaken. The court did not tell the jury Bowles saw the shooting. Bowles's role was obvious. She was defendant's girlfriend and so was familiar with his appearance. She was shown post-crime surveillance footage and rendered her perception, which both counsel stressed by emphasizing different interpretations of the phrase "looks like." Further, some of the model language was surplusage. The references to "eyewitness identification" and "showup" were not ideally suited to Bowles's testimony. But we evaluate charges in their entirety, not by isolating awkward phrases. In context, the charge left the core factual issue to the jury: whether Bowles's statement about the still image had probative value. 14 A-2889-24 The verdicts confirm the jury was not swept away by the instruction. As stated, the jury acquitted defendant of conspiracy and Dortch of every count. Those results undermine the claim that the jury treated Bowles's statement as a judicially endorsed identification of the shooter. We therefore see no plain error. Omission of a definition of "knowledge" Defendant also argues reversal is required because the court did not define "knowingly" in the jury instruction. The record confirms the court did omit that definition. When charging murder, the court instructed the State had to prove defendant acted "purposely or knowingly," and then said, "I've already defined purposely, knowingly and how to determine state of mind." In fact, the court had defined "purposely" but had not separately defined "knowingly." The written charge also omitted that definition. The omission was error, but it does not require reversal on this record. This case did not turn on a distinction between purposeful and knowing conduct. Identity was the central dispute. The defense was misidentification. Defendant did not argue the shooter acted accidentally, unknowingly possessed a weapon, or lacked awareness of what he was doing. If the jury credited the State's proofs, the conduct it found was deliberate. The shooter approached Thomas's occupied car and fired ten shots at close 15 A-2889-24 range, striking him eight times. If defendant was that shooter, as the jury found, the murder was purposeful at a minimum. Likewise, if defendant was the person who carried and fired the handgun, his knowing possession of it was self - evident. Further, if he used it to shoot Thomas, his unlawful purpose was equally clear. This case therefore differs from cases in which the omitted mental-state definition bore directly on a contested issue. See State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991). Here, the omission did not deprive the jury of the tools needed to decide the actual dispute presented at trial. Therefore, under the plain-error standard, we are not persuaded that the omission was clearly capable of producing an unjust result. Sergeant DiPrimio's Testimony Defendant next contends the testimony of Sergeant DiPrimio violated holdings in State v. Bankston, 63 N.J. 263, 272-73 (1973) and State v. Branch, 182 N.J. 338, 342 (2005) when he referenced making "attempts to identify the . . . shooter" and indicated those efforts led him to Bowles. We reject that claim. Bankston and Branch prohibit the State from presenting police testimony that conveys, directly or by necessary inference, that a non-testifying declarant implicated the defendant. Bankston, 63 N.J. at 272-73 ; Branch, 182 N.J. at 342 . 16 A-2889-24 The concern is that the jury will hear an out-of-court accusation without the safeguard of cross-examination. Bankston, 63 N.J. at 272-73 ; Branch, 182 N.J. at 342 . That did not happen here. Unlike the witnesses at issue in Bankston and Branch, Sergeant DiPrimio did not testify an informant named defendant, nor did he state an anonymous witness identified defendant. Bankston, 63 N.J. at 272-73 ; Branch, 182 N.J. at 342 . He did not testify he acted "based on information received" from a non-testifying source. Rather, he described the course of the investigation in brief, general terms, to give context to why the police interviewed Bowles. In other words, DiPrimio's testimony did not compel the jury to infer that some absent declarant accused defendant. Nor did the officer relay or imply the substance of an out-of-court accusation, or infer he was somehow in possession of superior knowledge outside the record that incriminated defendant. In this manner, the officer's testimony did not transgress either Bankston or Branch. Cf. Medina, 242 N.J. at 401, 421 (holding that a police officer's testimony that he included the defendant's picture in a photo array "based on the evidence collected" did not violate the Confrontation Clause or the hearsay rule because it did not imply that a non-testifying witness had provided incriminating information about the defendant). 17 A-2889-24 Any possible prejudice was also limited. Bowles herself testified and was cross-examined. The jury heard the recorded interview and therefore did not have to speculate about what Bowles told police. Because defendant did not object at trial, we again review for plain error and find none. Defendant lastly argues the cumulative effect of the claimed errors denied him a fair trial. We have discerned no reversible error. We also are not persuaded that the asserted flaws, considered together, had the capacity to produce an unjust result. The jury returned nuanced verdicts following a fair trial. This claim lacks merit. Sentencing We review sentencing decisions for abuse of discretion. Torres, 246 N.J. at 272. We do not substitute our judgment for that of the sentencing court. State v. Konecny, 250 N.J. 321 , 334 (2022). "A court abuses its discretion when its 'decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. Chavies, 247 N.J. 245 , 257 (2021) (quoting State v. R.Y., 242 N.J. 48 , 65 (2020)) (internal quotation marks omitted). Generally, we intervene only if the court violated either the sentencing guidelines, based its findings on facts not supported by 18 A-2889-24 competent credible evidence, or imposed a sentence that shocks the judicial conscience. State v. Miller, 237 N.J. 15, 28 (2019). As a requisite, and pertinent to the sentence imposed here, trial courts must "explain and make a thorough record of their findings to ensure fairness and facilitate review." State v. Comer, 249 N.J. 359 , 404 (2022); see also Torres, 246 N.J. at 272 (requiring an "explanation for the overall fairness of a sentence"); Fuentes, 217 N.J. at 74 ("A clear and detailed statement of reasons is thus a crucial component of the process conducted by the sentencing court, and a prerequisite to effective appellate review."). "Proper sentencing thus requires an explicit and full statement of aggravating and mitigating factors and how they are weighed and balanced." State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting State v. Randolph, 210 N.J. 330, 348 (2012)). "[C]ritical to the sentencing process and appellate review is the need for the sentencing court to explain clearly why an aggravating or mitigating factor presented by the parties was found or rejected and how the factors were balanced to arrive at the sentence." Case, 220 N.J. at 66 (citing Fuentes, 217 N.J. at 73 ). "[I]f the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little 'insight into the sentencing decision,' then the deferential standard [applied 19 A-2889-24 to sentencing decisions] will not apply." Id. at 65 (quoting State v. Kruse, 105 N.J. 354, 363 (1987)). Failure to give complete, specific reasons can result in remand for amended reasons. State v. Sene, 443 N.J. Super. 134, 145 (App. Div. 2015). Defendant argues the trial court's imposition of the maximum life imprisonment sentence was excessive and the court's finding of no mitigating factors "violated its obligations to engage in a qualitative analysis of the relevant aggravating and mitigating factors and to explain the reasons behind [defendant]'s sentence." At sentencing, the court reviewed the presentence report and summarized defendant's prior juvenile and adult history. The court declined to find aggravating factor one, N.J.S.A. 2C:44-1(a)(1), as requested by the State. THE COURT: The court also . . . does find . . . aggravating factor three, six and nine. Relying upon the pre-sentence report, the defendant's criminal history, as indicated; and aggravating factor thirteen, the use of a stolen car, which was also caught on video surveillance. Therefore, I believe that the State is in agreement that count four merges into count two; correct? [PROSECUTOR]: That's correct, Your Honor. THE COURT: Very well. On [c]ount two, murder, the defendant is sentenced to life imprisonment, eighty- 20 A-2889-24 five percent to be served before parole eligibility, which according to the group statute is seventy-five years, which means defendant will serve sixty-three years, nine months and three days before he's eligible for parole. In addition, there's a parole supervision for five years pursuant to NERA. The sentencing record here is too brief to permit meaningful review. The court recited defendant's criminal history, named the aggravating factors, and imposed the maximum term. It did not explain why aggravating factor three applied beyond the bare reference to criminal history. It did not explain the weight it assigned to factors three, six, nine, and thirteen. Nor did it explain why no mitigating factor applied. Most important, it did not explain why a life term, rather than a lesser sentence within the statutory range, was the fair and appropriate result. See generally, State v. Francisco, 471 N.J. Super. 386 , 426- 28 (App. Div. 2022) (finding the sentencing court retains the broad discretion to make an individualized assessment and impose a specific term of years within the statutory thirty-year-to-life range, subject to NERA). That omission matters. The court imposed the most severe sentence available for the murder conviction. Yet its explanation occupies only a brief portion of the transcript. The court did not tie the sentence selection to a qualitative assessment of the offense, defendant's history, the identified aggravating factors, and the overall fairness of the sentence. Without that 21 A-2889-24 analysis, we cannot determine whether the court properly exercised its discretion. Therefore, we must vacate the sentence. We do not suggest the aggravating factors lack record support. We hold only that the court did not sufficiently explain its reasoning. That failure constrains us to remand. We therefore remand solely for a new sentencing hearing. On remand, the court shall state the factual basis for each aggravating and mitigating factor it finds, weigh those factors qualitatively, and explain why the sentence imposed is fair. To the extent we have not specifically addressed any remaining arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed in part, vacated in part, and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. 22 A-2889-24