State of New Jersey v. D.F.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-2238-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.F.W.,1

Defendant-Appellant.

________________________

Submitted October 2, 2024 – Decided October 29, 2024

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 20-01-0101.

Jennifer Nicole Selletti, Public Defender, attorney for

appellant (John P. Flynn, Assistant Deputy Public

Defender, of counsel and on the briefs).

Grace C. MacAulay, Camden County Prosecutor,

attorney for respondent (Maura M. Sullivan, Assistant

Prosecutor, of counsel and on the brief).

1

We refer to defendant, the minor victim, and the victim's family by their

initials. R. 1:38-3(c)(9) and (12).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant D.F.W. appeals from a February 15, 2022 judgment of

conviction for sexually assaulting his stepdaughter, J.H., and other related

offenses. In the alternative, he argues the trial court improperly double-counted

elements of the offense in applying aggravating factor one, N.J.S.A. 2C:44-

1(a)(1). We affirm the convictions and sentence.

We recite the facts from the trial testimony. In the fall of 2017, J.H. was

fourteen years old and lived with her mother, C.W., two younger sisters, K.H.

and J.W., and defendant. J.H.'s mother worked two different jobs—a day job

and an overnight job. Because C.W. worked outside the home, defendant cared

for the girls.

On November 28, 2017, while at school, K.H. told some classmates about

an "inappropriate" incident between J.H. and defendant when C.W. was not

home. One of K.H.'s classmates told a teacher. The teacher reported the

statement to the school's administrative staff. The school's administrative staff

contacted the Division of Child Protection and Permanency (Division).

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The same day, the Division visited J.H.'s home. A Division case worker

first spoke with K.H. and then spoke to J.H. The case worker included C.W. in

the conversation. J.H. revealed defendant sexually assaulted her.

After speaking with the Division's case worker, J.H., her two younger

sisters, and her mother were interviewed at the Camden County Prosecutor's

Office (CCPO). At the CCPO, J.H. spoke to a detective about defendant's sexual

assaults. J.H.'s trial testimony about defendant's sexual abuse mirrored her

statements to the detective. We summarize J.H.'s statements to the CCPO

detective.

J.H. stated the first time something occurred between her and defendant

was when she was between eleven and twelve years old. According to J.H., the

assault occurred on a June afternoon when she and her two sisters were home

with defendant and her mother was at work. J.H. said the sisters decided to play

doctor and defendant indicated he wanted to play too.

Defendant then told J.H. that because she was the "oldest," she would be

the first "patient." Defendant led J.H. to the marital bedroom. J.H.'s sisters

remained in their bedroom. When J.H. entered the marital bedroom, defendant

instructed J.H. to remove her clothes. Defendant left the room and closed the

door. J.H. did as defendant requested but did not remove her undergarments.

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When defendant returned to the marital bedroom, he instructed J.H. to

take off her underwear and bra. Defendant again left the marital bedroom while

J.H. removed those garments. J.H. stated she was afraid that if she did not do

as she was told, she would "get whooped."

Shortly thereafter, defendant reentered the marital bedroom, removed his

pants, and began touching J.H. According to J.H., defendant grabbed her wrist,

told her to place her hand on his penis and move her hand "up and down." J.H.

tried to pull her hand away, but defendant held her wrist.

J.H. estimated the incident lasted "three minutes." When it was over, she

dressed and left the marital bedroom. According to J.H., a "few hours" after this

incident, she told K.H. what had happened because her sister "asked." K.H. was

seven years old at the time.

J.H. stated she spoke to K.H. approximately "five" more times about

incidents between her and defendant. Each time, J.H. became emotional.

However, J.H. never told C.W. about the incidents. J.H. explained she did not

disclose the incidents to her mother because C.W. and defendant argued

frequently, "were already going through their own stuff," and J.H. "didn't want

to make it worse."

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The second incident between J.H. and defendant occurred about one

month after the first incident. J.H. was twelve years old at the time. On that

day, J.H. went into the marital bedroom because she wanted to play video games.

The video games were available only on her parents' bedroom television.

Defendant was on the telephone when J.H. entered the marital bedroom.

While on the phone, defendant touched J.H. "on the top of [her] boobs." When

defendant got off the telephone, he "touched [her] boobs again and then he

touched [her] vagina." Defendant told J.H. to close the door and take off her

clothes. Once J.H. was naked, defendant "continued to touch [her] vagina" and

pulled out his penis. J.H. "put [her] mouth on [his penis]" and "a white

substance" discharged from defendant's penis. After, J.H. grabbed her clothes

and dressed. She then went into the bathroom to spit in the toilet. After the

second incident, J.H. estimated defendant put his penis in her mouth about

"forty" times between 2015 and 2017.

J.H. also told the detective that when she was between thirteen and

fourteen years old, defendant would assault her at least "three days out of the

week" and, as time went on, the assaults were more "frequent" and "more

extreme." J.H. also stated that, when she was fourteen, defendant's penis would

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5

touch her anus "a few times," with defendant using "Vaseline" or "slippery

stuff." At that time, J.H. testified the assaults happened "four days" a week.

Defendant's last sexual assault of J.H. took place on Thanksgiving 2017.

J.H. stated she was in the kitchen, cleaning up after dinner, when defendant came

up behind her and put his hands "under [her] shirt and on [her] boobs ." J.H.

walked away, went to her bedroom, dressed in her pajamas, and tried to sleep.

Because she was unable to sleep, J.H. went into the living room where defendant

sat watching television.

J.H. explained she "wasn't allowed to sit on the couch," so she sat on the

floor. To avoid "ruin[ing her] eyes," J.H. sat further away from the television

and between defendant's legs. Defendant then touched her, both over and under

her clothes. J.H. said her clothes were removed and defendant retrieved a blue

towel,2 which he placed on the living room floor. Defendant told J.H. to lie on

the towel. Defendant then undressed and placed J.H. on "all fours." While she

was on all fours, defendant started "running his penis . . . underneath [her]

vagina" and "kept feeling [her] boobs." At that point, K.H. entered the living

room, complaining she was sick. Defendant yelled at K.H. to return to her

2

J.H. explained defendant used the same blue towel during prior sexual assaults.

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6

bedroom and K.H. complied. Defendant then told J.H. to go into the marital

bedroom. J.H. did as she was told but dressed first.

Defendant, still naked, followed J.H. into the marital bedroom, and placed

the same blue towel on the floor. However, this time defendant laid on the towel

and told J.H. to put her mouth on his penis.

Defendant resumed touching J.H., and she said her clothes came off. J.H.

moved to all fours and a "white substance" discharged from defendant's penis.

J.H. said some of the substance went "on the blue towel," "on [her] back," and

"on the floor." Following this incident, J.H. showered and placed her clothes in

the hamper. J.H. placed her underwear near the bottom of the hamper because

she did not want her mother "to see it."

J.H.'s interview with the CCPO detective lasted about one hour. The

CCPO detective then took statements from C.W. and J.H.'s two sisters.

Following the interviews, the CCPO filed charges against defendant.

Defendant turned himself in the same day. The CCPO detective spoke with the

defendant, who denied the allegations. The detective also obtained a buccal

swab sample from defendant.

After her interview at the CCPO, J.H. went to the local hospital where she

was examined by a sexual assault nurse examiner. The nurse could not complete

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the examination because J.H. became "[in]consolable and began thrashing

around" when the nurse attempted to obtain a cervical swab. As part of the

examination, the nurse noted J.H. had no physical injuries.

On December 1, 2017, Dr. Martin A. Finkle, who provided expert

testimony for the State at defendant's trial, examined J.H. Dr. Finkle was the

"founder and medical director of the CARES Institute."3 He described the

CARES Institute's function as follows:

[The] CARES Institute is a diagnostic and treatment

center for children w[h]ere there is concern that they

might be experienc[ing] any and all forms of child

maltreatment. And we combine the medical and mental

health so we have a mental health component, [which]

is mostly [sic] strongly focus[ed] on evidence-based

research to develop evidence-based treatment for

children who are experiencing sexual victimization in

all forms of child maltreatment.

And of course [the] primary impact of

maltreatment when it is substantiated [is]

psychological, so mental health is important. And

. . . I am the pediatrician, I do the medical component.

Dr. Finkle explained his process for examining patients. First, he speaks

to the child's parents and then to the child. He notes the child's medical history,

3

The doctor explained CARES stands for "child abuse research, education, and

service."

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particularly as described by the child, because "ninety percent of the diagnosis

is in what the child has to say."

In describing his examination of J.H., Dr. Finkle testified J.H. told him

about the first time something happened between her and defendant. She

provided details regarding defendant's sexual abuse, which Dr. Finkle reported

as part of his trial testimony. According to Dr. Finkle, J.H. said the sexual

contact between her and defendant "happened both ways," meaning genital and

anal, and occurred more than once per week. J.H. further told Dr. Finkle about

the "sensations" she felt after the sexual contact, such as "burn[ing]," "runny

bowels," and difficulty walking and urinating. J.H. also reported "some

bleeding." J.H. also described other sex acts specifically, fellatio, which she

told Dr. Finkle happened "about one time a week."

J.H. disclosed the following concerns to Dr. Finkle during the pre-

examination discussions: what would happen to her mother and sisters as a

result of her disclosing defendant's sexual abuse; whether she might suffer any

diseases due to the sexual assaults; and would she be able to have children in

the future. Dr. Finkle addressed these concerns and discussed other mental

health issues with J.H.

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9

After the interview, Dr. Finkle physically examined J.H. with her mother

present in the examination room. Dr. Finkle reported "any injuries that [J.H.]

complained [of] . . . had . . . since healed."

After interviewing J.H., CCPO investigators searched the family's home

and seized several items. A few days after this search, C.W. called the CCPO

investigators to report she collected additional items that might have evidentiary

value. The collected items included a blue towel, blanket, and J.H.'s underwear.

C.W. placed all three items in the same bag and delivered them to the CCPO.

CCPO detectives, in turn, sent the underwear for testing "because . . . that was

the item . . . most likely to provide biological evidence." J.H.'s underwear tested

positive for sperm and blood. The sperm contained defendant's DNA.

At trial, J.H. and C.W. testified they received letters and telephone calls

from defendant while he was in jail. During these conversations, defendant

discussed the allegations against him. The jury heard portions of these telephone

calls recorded by the jail facility and read along with a transcript of the calls.4

4

For security purposes, inmates' telephone communications are recorded by the

prison facility.

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The trial judge redacted portions of the telephone conversations and

letters. Defendant challenged the judge's redactions. Thus, we recite large

portions of defendant's communications for context.

In a December 23, 2017 telephone call, defendant told an unidentified

listener, "I'm trying to get it to where I might be able to persuade [someone] to

get my daughter, and [C.W], and my other daughter to recant what they said."

In a December 26, 2017 telephone call, defendant made the following

remarks to C.W.:

Trust what I'm telling you. You don't know what I –

you don't know about this system. I do. What you say

could change things around if you really wanted to have

something to say. What you say could be very, very

critical in [the] decision that the prosecutor has just

decided to make. I'm telling you what I know. If you

want to go (inaudible).

....

I will say things did happen here and there. But all that

time, and all that stuff, no. All the stuff that was said,

no. I can honestly tell you that, [C.W.], that all that

stuff did not happen. Everything I'm being charged

with, accused of, is not true.

[(Emphasis added).]

On the same date, in another recorded telephone conversation between

defendant and C.W., the following exchange occurred:

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11

[C.W.]: For how long?

DEFENDANT: It's been going on over like the past

year, but it has not been –

[C.W.]: Over the last year. We've been married for a

year.

DEFENDANT: It wasn't going on before we got

married, [C.W.]. Nothing was going on before we got

married, nothing. Nothing. I wouldn't sit here and lie

to you like that. I haven't lied to you about so much

stuff. Why would I start lying to you now? Do you

understand what I'm saying to you?

[(Emphasis added).]

The next day, defendant placed another telephone call to C.W. The

following exchange took place:

DEFENDANT: You said so what happened?

[C.W.]: Mm-hmm.

DEFENDANT: You have to ask me that? All right;

fine. You want to know? There was touching and that

was that. There was touching. There was (inaudible).

There were other things involved. Ain't nothing

(inaudible). I ain't gonna say another thing. There was

another thing involved.

[(Emphasis added).]

Defendant also sent a December 27, 2017 letter to C.W. and her daughters.

Directing a portion of the letter to J.H. specifically, defendant wrote:

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[P]lease, please forgive me. I never, ever meant

to hurt you in the way that I have. Please forgive me

for being the first man/dad to break your heart. I know

you hate me and probably don't want to read nor hear

anything that I have to say. However, please listen

carefully, very carefully. I first of all want to apologize

to you for my wrong behavior. I wish I would have

protected you better. It was all of my fault that this

unfortunate abuse happened to you caused by me. You

are not to blame and I do not want you to think that it

was your fault at all. If I could change the way things

happened, then you would have never known what it

feels like to be hurt nor have to deal with what you have

to go through now. [J.H.], I apologize and regret

everything that has happened negatively to you.

....

Though I cannot change anything that has

happened in the past, I hope that every day you become

stronger to be able to overcome what has happened and

move on with your life successfully. Please do not

blame your mother for anything because it was not her

fault and she did her best in protecting you. Daddy

made some awful bad decisions and not your mother so

love her, [J.H.]. Mommy cares about you. I love you

tomorrow for always and for life, love supreme, daddy.

P.S. hopefully one day you will accept my sincere

apology and forgive me. I never meant to hurt you.

Please forgive me.

[(Emphasis added).]

Addressing K.H. in the same letter, defendant wrote:

[D]addy loves you and wants you to know that

doing what you did by telling someone was a good thing

to do in trying to protect your big sister. You did not

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do anything wrong and I hope that you forgive daddy

for having to make you feel unsafe at home. Daddy did

something very bad. [K.H.], I apologize for not being

there for you as I should be. I will love you always,

[K.H.]. I love you today, tomorrow, and forever

always, love supreme, daddy.

[(Emphasis added).]

In a January 8, 2018 letter to C.W, defendant wrote:

Peace beautiful. [C.W.], listen, I know that me

being completely away from you is extremely a lot to

deal with especially when it comes to the care and

concern of our girls. I know that it's not an easy task

and I know that to a degree it's struggle having to deal

with them completely on your own. I know it's not easy

to deal with the worries and stress of trying to maintain

the home, handle our kids and take care of the bills all

by self [sic] without having your soul mate and husband

to aid and assist and being your better half to hold you

down just as I was previously doing. I love the fact that

you are at least willing to give us another chance even

over the fact of you telling me that you don't want to be

in a relationship with me again, which to a point I can

understand yet on another degree I don't fully see why

you wouldn't want to.

[C.W.], I need you to read and reread this portion

of this letter carefully. I was building with you on there

being a way that you can get me home if you really want

me home. There was [sic] some things that I wanted to

build with you on; however, I didn't want to build on

the jock with you on the specifics. As I was telling you

on the jock, you literally have the power and decision

of what happens to me when it comes to my life and

freedom, the requirements of what would have to be

done are rural as I said before and you would have to

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be very affirm and strong within your choice to make

such a critical decision. The decision would also

require the involvement of [J.H.] being strong enough

to make one hell of a choice. Overall, you would have

the final say in the whole ordeal.

If you want me home here is what would have to

be done. I feel awkward about sharing this with you

and even a little crazy for penning these thoughts given

the circumstances. I hope this information stays

exclusively between us and us only whether you follow

through with these thoughts or not.

[F]or me to get home, [C.W.], you and [J.H.]

would have to totally withdraw yourselves from the

case altogether, meaning that you would have to go

before the judge and tell him or her that you want

absolutely nothing to do with the case at all. I would

also need for you to write a sworn affidavit in admitting

that you and your daughter want nothing to do with the

case at hand. You would without a doubt have to be

very strong in making your decision to do this if you

would even consider doing this at all. The state's

attorney and prosecutor would be all but nice, but when

it would come to them inquiring as to why you wish to

withdraw from the case and they would definitely ask

you if the defendant/me has at all been in contact with

you at any time. Basically, you would really have to

have my back to the fullest and not appear in court at

any of my hearings after you withdraw from the case.

First and foremost, before anything you would

have to really have a one-on-one talk with [J.H.]

seriously and explain to her how you feel. This would

benefit us as a family. Her decision even before your

[sic] comes first, so if it's a no-go, then it's a no-go,

period. I would never ask you to do anything that

would compromise the wealth and safety of our seeds,

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and by all means if you chose to do this, then I would

most definitely want you to be okay in knowing that I

wouldn't ever hurt my see[d]s, and beyond that the fact

that I can be trusted beyond the shadow of a doubt. The

whole process would not take as long as it would if we

had to keep going back and forth to court because

without a witness to testify to the charges in the case

then the state doesn't have a case. Therefore, the court

has to drop the charges or find my case to be voided

meaning that they would hold me for a little bit more

time. However, in between that time if you don't appear

then they would have to release me.

[C.W.], please forgive me if you feel at all

disrespected by the notions that I just explained and

presented to you. I didn't and I don't mean to be

inconsiderate or ignorant and I hope that this is not how

you feel, baby. In all honestly and truth this is

technically the only other option and way for me to

come home and the only way for us to avoid having to

deal with the system, period. The decision is totally up

to you on whether or not you would want to go through

the process or just leave everything as it already is and

just wait to see what the overall outcome will be.

If having me come home was an option, then

there would still be stipulations set in place and I would

definitely want us to go to family counseling

immediately. I would of course still have to find self a

motel to stay in for a while and I would have to find

employment plus do counseling sessions on my own. I

would be willing to do whatever you ask of me no

matter how hard a task, even if that meant the

humiliation of comforting people for real.

[C.W.], please know that it is not a plan that is a

way of me looking for a way out at all. It's just really

a matter of me not wanting to be completely torn away

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from my family, which is none other than you and my

girls.

In closing, please take what's being said into

consideration and don't think anything ill-mannered on

what I wrote about. It's only a suggestion. The decision

is always yours to do whatever you will. I'm in love

with my baby, [C.W.], for life. Thank you so much for

being here with me. Love, your husband, [defendant].

[(Emphasis added).]

Defendant placed additional telephone calls to C.W. on January 16, 2018.

During these conversations, the following exchanges occurred:

[C.W.]: What is not true?

DEFENDANT: The fact that stuff been going on since

they've been twelve years old, all that stuff. And then

even –

[C.W.]: And all that dope?

DEFENDANT: Even the fact that it's on my whatcha

call it that I forced. There was never no force of

anything. There was never no force of nothing at all.

No coercing, no any of that.

....

[C.W.]: That it was consensual? Is that what you told

them?

DEFENDANT: Yes.

[C.W.]: She wanted it as much as you did.

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DEFENDANT: No, I'm not, I'm not saying that, but the

way things happened I mean technically -- technically

to a degree, I can say to a degree they knew what was

going down. If that makes any sense to you.

....

[C.W.]: (Inaudible) it wasn't the regular way. It was

the back way. You understand what I'm saying?

....

DEFENDANT: So, basically you're saying that

insertion from behind.

[C.W.]: What?

DEFENDANT: Insert, insert. You know what that

means, right? Insert.

[C.W.]: Put it (inaudible).

DEFENDANT: What?! Wow! That's what you were

told?

[C.W.]: (Inaudible).

DEFENDANT: Whoa. So, wait a minute. Then I'm

going to be doing -- wait a minute. Wait a minute. Wait

a minute. Wait a minute. You're basically saying that

it was said that I was sticking my dick in her ass.

[C.W.]: Correct.

DEFENDANT: Wow!

....

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DEFENDANT: No. Honest to God, that was not done.

[C.W.]: Yeah. In all honesty because I don't know.

DEFENDANT: It was -- it was -- that is so fuckin bad.

It was, it was (inaudible). Do you understand what I

mean by that?

[C.W.]: The regular way?

DEFENDANT: No baby, not the regular way, no. Like

in between. Not to be inappropriate. When I say in

between, just like, okay, kitchen, hot dog --

[C.W.]: Rubbing?

DEFENDANT: Right. Right. Hot dog in the bun. You

understand what that is, right?

[C.W.]: Yeah but --

DEFENDANT: I hear you.

[C.W.]: Because (inaudible) that she described it.

....

DEFENDANT: Okay. And what was the description

like?

[C.W.]: Rubbing and (inaudible) and shit.

DEFENDANT: What?!

....

[C.W.]: No. (Inaudible) like she need to take a pee.

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DEFENDANT: Wow! No. No. If, shit, that had

happened, that would have been force. If that would

have happened, that would have been force. If that

would have happened, that would have been

penetrating force without a doubt. That would have

been penetrable force. I'm not stupid. And when I tell

you they were hot dog –

....

DEFENDANT: I never stuck my thing in her ass, baby.

Never. Never did that shit, never. I will say as far as

the hot dog bun situation, all right. But that shit, I

would never do that shit, baby. I never did that. I never

did that shit. This is gonna cause some shit right now.

[C.W.]: Look, I don't want to be (inaudible) no more,

okay? I don't. I don't want to talk about it no more.

DEFENDANT: And I'm asking you who was

(inaudible). I'm begging for my freedom. I'm telling

you what I did. I don't have no reason to lie after I told

you what I did. I'm not gonna sit there and tell you, oh

yeah –

....

[C.W.]: If you didn't do anything why would you -- if

you didn't do anything, why –

DEFENDANT: Baby, baby, hold on. Hold, hold, hold,

hold –

[C.W.]: You told us –

DEFENDANT: Pause, pause. No. Uh-uh, no, uh-uh.

I never told you that I didn't do nothing, first of all.

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[C.W.]: (Inaudible).

DEFENDANT: I told you. I sat there and told you.

[C.W.]: You said, you said hot dog. Okay, that doesn't

-- that date?

DEFENDANT: Yeah. I told you.

....

[C.W.]: This is what I don't understand, because if it

wasn't -- if it wasn't done what did she have to get

washed up for then for.

DEFENDANT: Why wouldn't she get washed up after

doing something like that?

....

[C.W.]: Why? Why would you? You're not doing

nothing? You're not on her? Are you on her?

DEFENDANT: I just told you hot dog.

....

DEFENDANT: She'd totally do that. I didn't have

nothing to do with that. I don't have nothing to do with

that. That's what her routine was. I didn't have

anything to do with that.

[(Emphasis added).]

During additional telephone calls on January 21, 2018, defendant and

C.W. discussed the following:

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DEFENDANT: Actually, it wasn't even a thing of

getting caught. It was a thing of she just told, that was

it, and that's what started it off. And even now there's

still things that I don't trust because what she told them,

there's so many channels, I don't know what to think

about that shit when it comes to that. But however,

there was a lot that went on and was going on in my

head every single day, every single day. And there was

[sic] times where I wanted to actually pull her to the

side and be like, look we're going to have to tell

mommy. There was [sic] times when I actually wanted

to tell you so bad but I didn't know how like you was

gonna look at me. I didn't know how you was [sic]

going to take it. I was like -- the pressure was there.

The pressure was definitely there. But I didn't know

how things was [sic] going to happen. I didn't know if

I was gonna lose you or -- I was afraid of a lot of shit.

....

DEFENDANT: There were times when I didn't have to

say nothing or do nothing and she would just like come

out of her clothes. Like she knew what was going on.

The same way I explained to you this morning how that

would happen. There were times when she would just

do that like knowing that it was late at night, she's

supposed to be in bed, and there were times that sitting

around out of the clothes, going from there.

....

DEFENDANT: So I mean there was stuff here and

there, and there was little stuff going on. But I mean as

far as her saying like she didn't get no attention, she got

-- there was [sic] times she got more attention then [sic]

versus --

....

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22

[C.W.]: You're saying it was her choice.

DEFENDANT: Yes, yes, yes. No, I know, like I said,

I admit I attempted and I told you I wouldn't lie to you

and I'm not. I know that I did whatever on my end but

there was [sic] things like shit was going on. And

during those times it was never no, no, daddy, no mom,

no nothing. I never –

[C.W.]: What happened when you finished?

DEFENDANT: Sometimes -- well most of the time she

would get up, most of the time she would get up, go get

washed up and she would come back, give me a hug or

whatever and go to bed.

[C.W.]: Did you come on her?

DEFENDANT: On, on -- why are you asking me that?

....

[C.W.]: Because I want you to tell me you did.

DEFENDANT: That's true. It was, like I said, the hot

dog and stuff.

[(Emphasis added).]

On March 22, 2018, defendant again spoke with C.W. about his recent

conversation with J.H.:

DEFENDANT: [W]e talked and, you know, [J.H.] told

me some things.

[C.W.]: Now what did you say?

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23

DEFENDANT: I said we talked and she basically told

me some things and she cried and told me she

apologized and everything.

....

[C.W.]: And then what happened?

DEFENDANT: I asked her, I said, how would you feel,

you know, how would you feel first of all about daddy

coming home? And at first she was like, she paused,

she was like, I don't know, I haven't really thought

about it. But then after awhile she just burst open and

she was like, daddy I want you home, I need you home,

like I want you to be home with me. I told her, I was

like, look you know, you're going to have to -- if you

really want me to come home then you got to tell these

people the truth. And I asked her, I said are you willing

to tell the people that everything basically was a lie or

what have you? And she was like yes. And I said are

you sure? And she was like yes. So I told her, I said

well let mommy know because I'll call her back and I

want both of you to be in the room together so we can,

all three of us can talk. So I don't know if she told you

that or not.

[(Emphasis added).]

During that same call, defendant explained the steps he, C.W., and J.H.

would have to take to obtain his "immediate release." Defendant told C.W. to

bring J.H. into the conversation so that he could tell her about the plan. When

J.H. joined the telephone conversation, defendant said:

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24

You can't not pay them no attention [sic] but you can

be like, look, you know, this is it. I lied, I want my

attorney or whatever, and there's nothing else to

tell. . . . Just the fact that -- baby, you just wanted -- I

don't know -- you just wanted daddy at the house, or I

don't know.

Defendant told C.W. to call his attorney and explain she wanted to "write

another affidavit." Defendant stated:

You need to tell him that you want to, you want to write

another affidavit stating the facts that everything, you

know, is not true and all of that. Either you can go see

him or either -- I would just rather call first before you

go because you're going to eventually have to go

anyway. But let him know, you know that basically

what we talked about, you know, about the stuff that

came out that's a lie and all that and that you want me

released, you want me, all charges dropped, or what

have you. I'm pretty sure he's gonna tell you the

guidelines on what you need to do and what not to do.

And like I said, don't talk to no detectives. Don't talk

to nobody [sic] besides my attorney. And let him, let

him tell you what you need to do from there. If you

can, get in contact with him ASAP, as soon as possible.

[(Emphasis added).]

After this telephone call, C.W. spoke with defendant's attorney.

The next day, defendant and C.W. spoke again. C.W. said she spoke with

defense counsel and he wanted to meet J.H. In discussing what J.H. might say

to his attorney, defendant explained it would not be a good idea for J.H. to say

she lied to authorities because she was not "getting attention."

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25

On March 27, 2018, defendant spoke with J.H. exclusively. Defendant

accused her of telling "a lot of lies." Defendant asked J.H. if she wanted "daddy

to come home," and if she would be "willing to tell the people that [she] lied?"

Defendant told J.H. he "hate[d] being in this . . . cage" and "wanted [the family]

to be able to move on from this."

After these telephone conversations, J.H. and C.W. each gave a CCPO

investigator another statement. In her second statement, J.H. recanted her prior

allegations against defendant telling the investigator that she "lied" and C.W.

assisted with J.H.'s lying to the CCPO.

Next, defendant sent an April 8, 2018 letter to C.W. In that letter,

defendant wrote:

Peach baby doll, [C.W.] listen. Baby I really,

really need you in my corner right now more than I ever

had. I don't need you to just be my wife and companion,

I need you more than ever right now to step up to the

plate seriously and fight with me against these

devils/prosecutors who are out to take your husband

down.

....

At this point in time I would suggest and ask of

you not to cooperate at all with them and do not share

anything with them at all voluntarily because they can

try to pressure you even . . . you to turn on me and

against me too. Do not under any conditions allow

them to use you to try and pump any information out of

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26

you about me period. And do not voluntarily or even

involuntarily, share any more information with them

that we discuss at all. And if you really have my back

and are here for me as you proclaim and say that you

really are and have my back all the way in this with me

baby. And don't allow them to break you or trip you

up. In other words[,] don't get caught up slipping

because I really need you in my corner baby for real.

I will advise you to be very consciously discrete

whenever you talk to them, whenever they call you and

if they ask you anything keep your answers simple, and

I mean very short, basic, and simply. And again[,] do

not volunteer to share anything with them willingly.

So[,] if they don't ask you nothing, don't give them

nothing.

....

Moving on, my main concern is seriously the

phone records of our conversations. If they pull our

conversations from the phone records then baby I'm

done. I confess a lot to you and it was always being

recorded, the operator even let's you know that the call

is being recorded before you press one to accept the

call.

....

I was seriously (indiscernible) stuck in between a

rock and a hard place during that time and I felt that if

I had a critical decision that I had to make, which was

to go against the grain and break all codes by answering

your questions and being completely honest with you

or risk forever losing you because I wouldn't share with

you the answers to the questions that you wanted to

know.

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....

[C.W.] if you really want to see your husband,

touch your husband, hold your husband, and have him

hold you as you said that you want my hands and arms

to do then I need you to work with me and together let's

bring your baby home. I just need for you to deliver

and come through on your end and stay positive

(indiscernible). Please don't disappoint me babe, you

are still the only one that I have close in my life, I really

need all your love, help and support. I love you

eternally for life Ms. [C.W.]

[(Emphasis added).]

K.H. testified at defendant's trial. According to her testimony, K.H.

noticed defendant and J.H. spend time together in the marital bedroom with the

door closed. K.H. further testified J.H. told her that defendant "would touch her

in places she didn't want to be touched." K.H. also testified that one time, when

she "was sick," she "went in the living room and [J.H. and defendant] didn't have

clothes on." Shortly after that incident, K.H. told her school friends what she

witnessed in the living room between J.H. and defendant.

Defendant proceeded to trial on the following charges: second-degree

sexual assault, N.J.S.A. 2C:14-2(b) (counts one and two); second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1) (counts three and

eight); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts

four, five, six, and seven); first-degree aggravated sexual assault, N.J.S.A.

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2C:14-2(a)(2)(a) (counts nine, ten, eleven, twelve, fourteen, fifteen, sixteen, and

seventeen); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (counts

thirteen and eighteen); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1)

(counts nineteen, twenty, twenty-one, and twenty-two); and third-degree

tampering with witnesses and informants, N.J.S.A. 2C:28-5(a) (count twenty-

three).

A nine-day trial was held on non-consecutive days between August 23,

2021 and September 3, 2021. After the close of the State's case, defendant

moved for a judgment of acquittal, and the judge dismissed counts four and

seven. The jury found defendant guilty on all remaining counts.

Defendant was sentenced on January 28, 2022. On count five, first-degree

aggravated sexual assault, the judge sentenced defendant to a fifty-year term of

imprisonment, with an eighty-five percent period of parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed the

sentence on counts one, two, three, six, eight, nine, ten, eleven, twelve, thirteen,

fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, and

twenty-two concurrently to the sentence imposed on count five. On count

twenty-three, third-degree witness tampering, the judge imposed a five-year

term of imprisonment, consecutively to the sentence imposed on count five.

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29

In his counseled brief on appeal, defendant raises the following

arguments:

POINT I

THE TRIAL COURT IMPROPERLY ADMITTED

THE COMPLAINANT'S HEARSAY STATEMENTS

ABOUT THE ALLEGATIONS TO DR. FINKLE

UNDER N.J.R.E. 803(c)(4). (Partially Raised Below)

A. The trial court committed plain error by admitting

Dr. Finkle's testimony under N.J.R.E. 803(c)(4)

without any proof that J.H. subjectively believed

that her statements to Dr. Finkle were for the

purpose of medical diagnosis or treatment. (Not

Raised Below)

B. The trial court erred by admitting hearsay testimony

that did not reasonably pertain to medical diagnosis

or treatment. (Partially Raised Below)

POINT II

THE TRIAL COURT'S UNBALANCED

REDACTIONS OF DEFENDANT'S LETTERS AND

JAIL CALLS VIOLATED THE DOCTRINE OF

COMPLETENESS AND REQUIRES REVERSAL OF

DEFENDANT'S CONVICTIONS.

A. The redactions.

B. The trial court violated the doctrine of completeness

by redacting defendant's statements about

weaknesses in the State's case and other context

necessary to evaluate defendant’s mental state and

relationship with his wife.

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30

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN

ADMITTING FRESH COMPLAINT TESTIMONY

WITHOUT HOLDING A HEARING UNDER N.J.R.E.

104.

POINT IV

THE TRIAL COURT ERRED IN REFUSING TO

TAILOR THE JURY INSTRUCTIONS FOR ANAL

INTERCOURSE.

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS

REQUIRES REVERSAL. (Not Raised Below)

POINT VI

RESENTENCING IS REQUIRED BECAUSE THE

TRIAL COURT DOUBLE-COUNTED ELEMENTS

OF THE OFFENSES TO SUPPORT AGGRAVATING

FACTOR ONE AND INAPPROPRIATELY

ALLOWED ITS SENSE OF MORAL OUTRAGE TO

COLOR THE SENTENCING DECISION.

In his pro se letter brief defendant raises the following argument, which

we renumber for the reader's convenience:

[POINT VII]

DEFENDANT CONTENDS THAT HE WILL NOT BE

ABLE TO RECEIVE A FAIR AND IMPARTIAL

TRIAL OR HEARING IN FRONT OF [THE TRIAL

JUDGE] DUE TO THE CONFLICT OF INTEREST

OF HIS ACTIONS, DEMEANOR[,] AND TONE OF

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31

VOICE HAD ME TO BELIEVE THAT[] HE DID NOT

FOLLOW THE RULES OF LAW.

I.

We first address defendant's contention that the judge erred in permitting

Dr. Finkle to testify regarding statements J.H. made to him. Defendant asserts

the statements "had nothing to do with medical diagnosis or treatment," and thus,

should not have been admitted. He also argues Dr. Finkle's testimony "unfairly

bolstered J.H.'s credibility and deprived defendant of due process and a fai r

trial." We reject these arguments.

Dr. Finkle was qualified as an expert in pediatrics and "the medical

diagnosis [and] treatment of child abuse." He testified "[ninety] percent" of his

diagnosis is based on information reported by the child during his examination.

Dr. Finkle further explained he typically asks the child for details regarding the

abuse prior to a physical examination, repeating "ninety-five -- ninety percent

of the diagnosis again is in the history." The doctor stated his secondary purpose

in examining the child "is for diagnosis and treatment of normality, wellness,

signs of physical intactness. Kids commonly . . . have worries or questions or

concerns about their body that they haven't shared with anybody."

Dr. Finkle also testified he seeks to learn about physical symptoms the

child might have experienced during the abuse:

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32

Okay, so I am interested hearing about how that

experience felt. Focused on learning whether or not

they had any injuries. Injuries while it was happening,

injuries following it -- the thing. Did they notice

anything, for example that may [hurt] them – someone

– a child might say that it hurt. Did you notice anything

that made you know you were hurt? I noticed bleeding

when I wipe myself. I am interested, particularly in

girls in finding out whether or not they had any

discomfort afterwards when they went to the bathroom

to do anything, whether or not they had dysuria,

because dysuria reflects genital trauma around the

structures of the urethra and what we call the vaginal

vestibule which is tissues surrounding the opening to

the vagina.

In addition to physical symptoms, Dr. Finkle typically explores

psychological symptoms the child may report. Although Dr. Finkle

acknowledged he was not a psychologist, he testified " there are a lot of details

that children share about fears and anxieties that clearly have psychological

impact on them and I see that the medical evaluation is one of the very first steps

to therapeutic intervention."

During his examination of J.H., Dr. Finkle explained he told her:

I am a kids' doctor and one of the things I do that is a

little different than most kids' doctors is I talk to kids

just like you every single day, some older and some

younger and they have been able to tell about

something that happened that could be confusing or

difficult to understand when someone they know and

they trust. It happens to a lot of kids. Did that happen

to you?

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33

J.H. then told Dr. Finkle she "experience[d] something." When Dr.

Finkle asked J.H. if she found it hard to discuss what she experience d, J.H. said

"yes." Dr. Finkle testified he asked J.H. "who she thought was to blame," and

she replied, "in the beginning I thought it was my fault but my mom said it wasn't

. . . it was his fault." The doctor asked if the male 5 told her not to tell anyone,

and she responded "yes." According to Dr. Finkle, these questions were relevant

to his examination and diagnosis because "it [affects] the time frame for which

the disclosure occurred . . . you are always looking to correlate physical

symptoms with physical examination findings and timing. . . . And also , the risk

for sexually transmitted diseases and whether or not there is a need for

evaluation treatment."

Dr. Finkle also asked J.H. "if it was important to tell the doctor the truth."

J.H. replied in the affirmative because the doctor would "use it to get [her]

healthy again." Dr. Finkle asked J.H. about the allegations, and she shared

specific details with him. Dr. Finkle recounted those details during his

testimony. According to Dr. Finkle, J.H. reported specifics as to where and how

5

During his trial testimony, Dr. Finkle referred to "the male" and scrupulously

avoided mentioning defendant or defendant's name.

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34

the male touched her. J.H. also told Dr. Finkle about the physical symptoms she

experienced following the sex acts with the male.

Dr. Finkle's recitation of the incidents as reported to him by J.H. were

consistent with J.H.'s initial statement to the CCPO and her trial testimony.

Regarding incidents of penetration, the following colloquy occurred between the

prosecutor and Dr. Finkle:

[Prosecutor]: Did you have a chance to clarify with her

what she meant when she said that he would put his

penis in --

Dr. Finkle: Yes . . . She described it as feeling weird

and she said that he went up and up onto my back and -

- and it was white stuff, he would use a tissue and then

wipe it off.

....

[Prosecutor]: Doctor . . . were you able to determine by

talking with [J.H.] whether or not when she mentioned

that he put his penis in her butt whether it was the adult

sense of penetration or something else?

Dr. Finkle: So – so she did a history of both. Rubbing

between the buttocks and the external surface of the

anus. And she also gives a history of anal penetration.

And the reason of note that she experienced anal

penetration into the anal rectal canal just like a bowel

movement comes out, the penis goes in that space.

[S]he complained that she had a burning sensation

when she went to have a bowel movement afterwards.

And that tells me that she had a grated tissue in what

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35

we call the mucocutaneous area of the anoderm. She

also gives a history of genital to genital contact.

....

[Prosecutor]: And did she indicate what the male

would do when he would touch his penis to her butt?

Dr. Finkle: He would put lubricant, Vaseline on it.

[Prosecutor]: Did she indicate what that felt like?

Dr. Finkle: It felt slippery and it hurt me really bad.

[Prosecutor]: And earlier you had mentioned that --

that she mentioned white stuff. Did she describe what

the white stuff felt like?

Dr. Finkle: Yeah, she said it felt slimy.

[Prosecutor]: And what sensations, if any, did she

report pertaining to her butt afterwards?

Dr. Finkle: Well, she complained of having runny

bowels afterwards and she also complained -- I asked if

it bothered her poop afterwards and she said it burned

really bad when she had to have a bowel movement.

I asked her if she saw anything that made her know she

was hurt when she had her poop and she said no. I

asked how often this would happen as to in her butt and

she said at least every time he did it. And I asked how

often and she said once or twice a week.

....

[Prosecutor]: Okay. So, besides this anal penetration

did she report any other sexual acts?

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36

Dr. Finkle: Complained of genital – genital contact.

....

Dr. Finkle: She complained of pain. And also, some

bleeding. In addition, there may be genital to genital

contact. And genital to genital contact the child can

experience the penis placed between the labia, rubbed

back and forth like this causing injury around the

urethra, (indiscernible) labia without any injury to the

hymen.

Now she provided a history of both genital to genital

contact and that way -- and as well into the vaginal

canal.

[Prosecutor]: Thank you. Focusing on the genital to

genital contact, did [J.H.] indicate how her body would

be positioned when that would happen?

Dr. Finkle: She said in the same position, I was laying

on my belly and she -- and he would go in that way. I

asked --

[Prosecutor]: Did she indicate . . . how it felt --

Dr. Finkle: Yes.

[Prosecutor]: -- when that happen[ed], during?

Dr. Finkle: She said it hurt and it felt like something

was pushing up. I ask --

[Prosecutor]: What about -- let me ask the question.

What about sensations afterwards?

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37

Dr. Finkle: I asked her while or afterwards, and she

said it happened while he was doing it and before. I

asked if it bothered her to do anything, she said to walk

and to pee. And she continued to pee, wouldn't come

out and then it burned really bad. I asked if she ever

felt that again and she said when he would do it again,

she would feel it, but not every time.

I asked if she felt the same sensation before he touched

her and she said -- ever felt the same sensation before

he touched her, she said yes, when I got my surgery.

....

[Prosecutor]: And did she indicate if she ever had to

clean herself after?

Dr. Finkle: I asked her if she ever had to clean herself

afterwards, she said my vagina. And I asked her if she

noticed anything when she would wipe herself after he

touched her vagina with his private part, and she said

yeah, sometimes like specks of blood and I knew it

wasn't my period.

[Prosecutor]: Did [J.H.] go on to describe any other sex

acts?

Dr. Finkle: Yes.

[Prosecutor]: What did she describe?

Dr. Finkle: He put his penis inside her mouth and he

would move it up and down and gooey stuff would go

inside of my mouth when he was done.

[Prosecutor]: Did she indicate what it tasted like?

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38

Dr. Finkle: I asked her that and she said I never

swallowed it, it was disgusting and I spit it out in the

toilet and then I brushed my teeth.

[Prosecutor]: Did she indicate how often that would

happen?

Dr. Finkle: She said about one time a week.

....

[Prosecutor]: Did [J.H.] indicate that she ever touched

the male?

Dr. Finkle: Yes.

[Prosecutor]: What did she report?

Dr. Finkle: She said that she had to do this and she

demonstrated with her hand, moving up and down, and

she said the cream would come out and go into my

hand. And she said sometimes it would be on her boobs

and sometimes on my vagina.

[Prosecutor]: Did [J.H.] indicate when the last time was

that something happened with the male?

Dr. Finkle: I believe it was Thanksgiving.

[Prosecutor]: Of the year --

Dr. Finkle: Yes, yes --

[Prosecutor]: -- from 2017.

Dr. Finkle: -- Yes.

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39

Dr. Finkle told the jury about his examination of J.H and reported he found

no evidence of trauma. According to Dr. Finkle, based on the history provided

to him by J.H., the absence of such evidence did not mean the abuse did not

occur. In fact, Dr. Finkle opined he did not expect to find trauma based on the

abuse as reported by J.H.

Defense counsel objected to Dr. Finkle's testimony at various points,

arguing his statements constituted impermissible hearsay. The judge, citing

N.J.R.E. 803(c)(4), overruled defense counsel's objections, finding the doctor's

statements were relevant to medical treatment and diagnosis.

We review a trial judge's evidentiary rulings for abuse of discretion. State

v. Garcia, 245 N.J. 412, 430 (2021) (citing State v. Nantambu, 221 N.J. 390, 402

(2015)). We "will not substitute our judgment unless the evidentiary ruling is

'so wide of the mark' that it constitutes 'a clear error in judgment.'" Ibid.

(quoting State v. Medina, 242 N.J. 397, 412 (2020)). "Every mistaken

evidentiary ruling, however, will not lead to a reversal of a conviction. Only

those that have the clear capacity to cause an unjust result will do so." Ibid.

(citing State v. Prall, 231 N.J. 567, 581 (2018); R. 2:10-2).

Hearsay is defined as a statement "(1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

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40

prove the truth of the matter asserted in the statement." N.J.R.E. 801(c).

Hearsay is inadmissible evidence unless it falls within an applicable exception.

N.J.R.E. 802.

"[I]t has long been the rule in New Jersey that the declarations of a patient

as to his [or her] condition, symptoms, and feelings made to his physician for

the purpose of diagnosis or treatment are admissible in evidence as an exception

to the hearsay rule." State v. Gonzales, 249 N.J. 612, 636 (2022) (quoting

Cestero v. Ferrara, 57 N.J. 497, 501 (1971)). This exception is "based on the

assumption that the declarant is more interested in obtaining a diagnosis and

treatment culminating in a medical recovery than he is in obtaining a favorable

medical opinion culminating in a legal recovery." Biunno, Weissbard & Zegas,

Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(4) (2024-25).

Under N.J.R.E. 803(c)(4), a hearsay statement is admissible provided it

"is made in good faith for purposes of, and is reasonably pertinent to, medical

diagnosis or treatment"; and "describes medical history; past or present

symptoms or sensations; their inception; or their general cause." "[T]o be

admissible[,] the patient must have believed that the statement would enable the

doctor to treat [him or her]," because "[r]eliability is based on the declarant's

belief that a doctor will properly treat him [or her] if the doctor is told the truth

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41

concerning the ailment." In re C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985).

However, a statement by someone who "is unaware that his or her statements

will enable a physician to make a diagnosis and administer treatment" does not

possess the same trustworthiness to qualify under this exception. R.S. v.

Knighton, 125 N.J. 79, 87-88 (1991).

Defendant argues the State failed to satisfy "the foundational requirement

of N.J.R.E. 803(c)(4): that J.H. herself subjectively believed her statements to

Dr. Finkle were for the purpose of medical diagnosis or treatment." Because Dr.

Finkle's testimony falls within the N.J.R.E. 803(c)(4) hearsay exception, we

disagree.

The record reflects J.H. knew the purpose of Dr. Finkle's examination was

for her to receive treatment following defendant's sexual assaults. Dr. Finkle

used the information reported by J.H. to conduct his examination and make

further treatment recommendations. J.H. also understood the information she

imparted to Dr. Finkle was for the purpose of getting her "healthy again." We

are satisfied Dr. Finkle's statements during his testimony were made for the

purpose of medical treatment and diagnosis in accordance with N.J.R.E.

803(c)(4). Thus, the judge did not err in ruling the doctor's statements were

admissible.

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42

Defendant also argues Dr. Finkle improperly provided the jury with

"statements that had nothing to do with medical diagnosis or treatment ."

Specifically, defendant challenges Dr. Finkle's testimony that J.H. "thought it

was her own fault for the abuse happening," "J.H. was afraid that if she disclosed

the abuse she would be taken away from her mother and no one would believe

her," and "J.H. told her younger sister about the abuse."

Having reviewed the record, we are satisfied these statements related to

"past or present symptoms or sensations; their inception; or their general cause."

N.J.R.E. 803(c)(4)(B). Dr. Finkle explained that details pertaining to the abuse

allegations were necessary because those details delineated how he would

conduct the examination and if further testing or treatment would be required.

While Dr. Finkle admitted he was not a psychologist, he explained his concern

that psychological symptoms, such as guilt or fear, displayed by a child could

affect the child's retelling of events. Those concerns would impact Dr. Finkle's

physical examination of the child and his opinion about whether further

therapeutic intervention should be recommended.

Even if we were to agree that Dr. Finkle's testimony was impermissible

under N.J.R.E. 803(c)(4), which we do not, there was overwhelming evidence

supporting the jury's guilty verdict. In addition to J.H.'s detailed and persuasive

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43

testimony, the jury heard defendant's sperm was found on J.H.'s underwear . The

jury also considered defendant's telephone calls and letters to his family, which

contained admissions of his wrongdoing. Further, K.H. witnessed inappropriate

behavior between defendant and J.H. on at least one occasion. On this record,

even if the judge's admission of Dr. Finkle's testimony had been erroneous, any

error was harmless as it was not "clearly capable of producing an unjust result,"

requiring reversal of defendant's convictions. R. 2:10-2.

II.

Defendant next argues the judge's redactions of his letters and telephone

calls to his family were "unbalanced" and "violated the doctrine of

completeness." Defendant focuses on the redactions to a December 26, 2017

telephone call, and the April 8 and 9, 2018 letters. We reject his arguments

regarding this issue.

Prior to trial, the State requested redaction of the December 26, 2017

telephone call between defendant and C.W. to exclude the portion of their

conversation regarding C.W.'s removal of defendant's name from certain marital

documents and bills. Defense counsel argued the entire conversation between

C.W. and defendant was required under the completeness doctrine to give

context to "the nature of relationship" between husband and wife as of that date.

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Further, defense counsel asserted the redacted information was essential for the

jury to assess "credibility as well as understand the context of the witness

tampering charge."

In rendering a ruling on the State's requested redaction, the judge stated:

[Defense counsel], I hear your objection, under

[N.J.R.E.] 403, you know we're trying a case of

aggravated sexual assault and endangering a child, I

just feel that that wasn't really part of the discussion

under [N.J.R.E.] 403(a), it could lead to confusion

issues and/or mislead the jury, and I do see going

forward certainly there is no memorialization on the

end of the relationship. The reason why is [sic] also

seems to be defined here by [defendant].

So, I'm going to grant the State's application [for certain

redactions].

At trial, the State requested redaction of portions of defendant's April 8,

2018 letter. Specifically, the State sought to redact references to defendant's

perception of the prosecution's motives and trial strategy, and defendant's

opinion that the State's case was "weak." The State argued those portions of the

letter were "inaccurate" and would be confusing for the jury.

Defense counsel countered the State's proposed redactions were "highly

probative to the mens rea of the witness tampering charge." Defense counsel

argued "defendant's subjective belief of the strength of his case goes directly

towards the witness tampering" charge.

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The judge granted the State's requested redactions. The judge found

defendant "talk[ed] about legal strategy," "talk[ed] about the prosecutor" and

"under [N.J.R.E.] 403 that . . . is confusing, it's misleading." The judge also

found the statements were "improper" and "prejudicial."

Later in the trial, defense counsel requested redaction of the following

portion of defendant's April 9, 2018 letter: "And they will definitely use the

phone records to beyond a doubt prove that they have evidence. . . . So basically

I, myself, alone would really be fucked." Defense counsel argued:

It's misleading to the jury and would potentially

confuse them and paint a picture that [defendant]

believes that his ship has sunk, even though he

repeatedly throughout this entire letter and the other

letters clearly indicate that he believes he has a good

shot of winning at trial. So, only introducing evidence

that he thinks he is going to lose from a legal

perspective, a [m]otion to [s]uppress, is wholly

improper and completely misleading.

In response, the State argued the statement represented "classic

consciousness of guilt" and was admissible. The judge agreed and denied

defense counsel's requested redaction.

Under N.J.R.E. 106, codifying the doctrine of testimonial completeness,

"[i]f a party introduces all or part of a writing or recorded statement, an adverse

party may require the introduction, at that time, of any other part, or any other

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writing or recorded statement, that in fairness ought to be considered at the same

time." A "second writing may be required to be read if it is necessary to (1)

explain the admitted portion, (2) place the admitted portion in context, (3) avoid

misleading the trier of fact, or (4) insure a fair and impartial understanding."

State v. Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992) (quoting United

States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984)).

The purpose of the rule is to permit the trier of fact to hear all that was

said at that time about the same subject matter. State v. Gomez, 246 N.J. Super.

209, 217 (App. Div. 1991). Unrelated portions of the statement are not

admissible under a theory of "completeness." Ibid.; see also State v. James, 144

N.J. 538, 555 (1996) (holding that the doctrine of completeness does not apply

to "separate utterances").

In Gomez, we concluded the defendant's exculpatory statement, which

followed an inculpatory statement, was not admissible under the doctrine of

completeness because the second statement was not necessary to explain the

first. 246 N.J. Super. at 221. Moreover, the doctrine will not form a basis to

admit any self-serving parts of a statement, as self-serving statements are

hearsay not within any exception. Id. at 215-17.

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Whether or not the doctrine of completeness applies in a particular

instance is an evidentiary determination which we review for abuse of

discretion. State v. Brown, 170 N.J. 138, 147 (2000). On this record, we are

satisfied the judge did not abuse his discretion regarding the redactions to

defendant's telephone call and letters.

Here, defendant's statements about the weaknesses in the State's case were

not necessary to explain the other admitted portions of defendant's letter. Nor

were those statements required to place the admitted portions of the letter in

context. Additionally, the redacted statements were not needed to avoid

misleading the jury. Nor were they required to ensure a fair and impartial

understanding of the admitted portions of defendant's letter. Thus, the judge

properly determined defendant's legal opinions in his letters to C.W. were

wholly irrelevant to the defense of his case and could potentially confuse the

jury.

Similarly, the conversation between C.W. and defendant regarding C.W.'s

decision to remove defendant's name from their insurance policy and other

household documents was not required to explain the rest of their telephone

communication or demonstrate defendant's state of mind at the time. We are

satisfied the redacted information from defendant's telephone call was irrelevant

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and unnecessary to defendant's case. Therefore, the judge did not abuse his

discretion in redacting the telephone call.

III.

Defendant next argues the judge erred by admitting fresh complaint

testimony without conducting a Rule 104 hearing.

During jury selection, defense counsel requested a hearing under N.J.R.E.

104 if the State intended to admit fresh complaint testimony as referenced in the

pretrial memo because the State had not filed a motion or requested a hearing .

At that time, the State had not made a decision on the issue. Thus, the judge

stated he would address the issue at a later time.

The issue arose when J.H. testified she told K.H. about defendant's abuse.

Defense counsel objected, arguing "we're getting into [f]resh [c]omplaint

territory." Defense counsel asserted J.H.'s testimony that "she talked with her

sister . . . immediately after the incident" was "hearsay." The State responded it

was "allowed to elicit [f]resh [c]omplaint testimony to show that [J.H.] disclosed

[the abuse] to someone." The judge ruled the testimony was "admissible as a

present sense impression under N.J.R.E. 803(c)(1), an excited utterance under

803(c)(2)," and permitted the State to continue questioning J.H.

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J.H. testified she told K.H. about the abuse "[a] few hours" after the

incident because K.H. asked. J.H. explained K.H. was seven years old at the

time and described K.H.'s reaction as "kind of surprised, but, honestly, she

probably wasn't." J.H. told the jury she spoke to K.H. approximately five times

about defendant's sexual abuse because K.H. "always asked about it." J.H.

explained she would get emotional and cry when talking to K.H. about the

assaults.

After a break in J.H.'s testimony, defense counsel moved for a mistrial.

He argued a Rule 104 hearing was required prior to admitting J.H.'s "fresh

complaint" testimony. Because there was no Rule 104 hearing, defense counsel

argued "a mistrial [was] appropriate." The judge denied defendant's motion

because only the victim had testified at that point and fresh complaint testimony

is proffered by a person other than the victim.

However, during K.H.'s testimony, the State elicited the following brief

exchange:

[Prosecutor]: Did [J.H.] ever tell you what she and

[defendant] would do in there while the door was

closed?

[K.H.]: Yes.

[Prosecutor]: What did she tell you?

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[K.H.]: That he would touch her in places she didn't

want to be touched in.

[Prosecutor]: Did [J.H.] talk to you about that more

than once?

[K.H.]: Yes.

[Prosecutor]: Did she say it happened more than once?

[K.H.]: Yes.

[Prosecutor]: When she would talk to you about that

how would she look to you?

[K.H.]: She would break down and start crying.

Defense counsel did not renew his objection after K.H. testified.

Defendant now argues that "[t]he trial court abused its discretion in

admitting this fresh complaint testimony without holding an N.J.R.E. 104(a)

hearing." Defendant contends that had a hearing been held, "the trial court could

have appropriately defined parameters as to how this hearsay would be presented

to the jury, so that the testimony did not exceed the limited purpose of fresh

complaint evidence."

The fresh complaint doctrine is a common-law exception to the rule

against hearsay. State v. C.W.H., 465 N.J. Super. 574, 599-600 (App. Div.

2021). It "allows witnesses in a criminal trial to testify to a victim's complaint

of sexual assault." Id. at 599 (quoting State v. Hill, 121 N.J. 150, 151 (1990)).

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"[T]o qualify as fresh complaint evidence, the victim's statement must have been

made spontaneously and voluntarily, within a reasonable time after the alleged

assault, to a person the victim would ordinarily turn to for support." State v.

R.K., 220 N.J. 444, 455 (2015).

"[F]resh complaint evidence serves a narrow purpose. It allows the State

to negate the inference that the victim was not sexually assaulted because of her

silence." Hill, 121 N.J. at 163. "[T]he purpose of the rule is to prove only that

the alleged victim complained, not to corroborate the specifics of the victim's

allegations." State v. P.H., 178 N.J. 378, 393 (2004) (quoting State v. Bethune,

121 N.J. 137, 146 (1990)).

In this case, J.H.'s testimony did not constitute fresh complaint evidence.

Fresh complaint testimony "allows witnesses in a criminal trial to testify to a

victim's complaint of sexual assault." Hill, 121 N.J. at 151 (emphasis added).

Here, J.H. was the victim. She testified at trial and was subject to cross-

examination concerning her testimony that she told K.H. about defendant's

sexual assaults. Thus, the judge did not err in declining to conduct a Rule 104

hearing regarding statements that J.H. made to K.H.

However, K.H.'s testimony fell within the parameters of fresh complaint

evidence. While the judge should have conducted a Rule 104 hearing regarding

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the admissibility and parameters of K.H.'s testimony, any error was harmless

considering the totality of the evidence against defendant in this case. K.H.'s

testimony regarding her conversations with J.H. about defendant's sexual

assaults was brief. Moreover, K.H. did not provide specific details regarding

her discussions with J.H. about the abuse. In fact, the most significant part of

K.H.'s testimony was her role as an eyewitness to inappropriate conduct between

defendant and J.H.

Additionally, as we stated previously, there was overwhelming other

evidence of defendant's guilt, including his jail house communications with

C.W. and DNA evidence. Thus, even if K.H.'s single line of testimony regarding

her conversation with J.H. regarding the sexual assaults should have been

excluded, the admission of K.H.'s testimony was not clearly capable of

producing an unjust result.

Moreover, largely tracking the Model Jury Charge6 in his final charge, the

judge properly instructed the jury regarding "fresh complaint" evidence. The

judge told the jury "[t]he only reason that the evidence [was] permitted [was] to

negate the inference that J.H. failed to confide in anyone about the sexual

6

See Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007).

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offense" and "[a] fresh complaint is not evidence that the sexual offense actually

occurred or that J.H. is credible." The judge expressly instructed

this testimony was permitted for a limited purpose. The

making of a complaint is not an element of the offense.

Proof that a complaint was made is neither proof that

the sexual offenses occurred nor proof that J.H. was

truthful. It merely dispels any negative inference that

may arise from her assumed silence. It eliminates any

negative inference that her claims of having been

sexually assaulted are false because of her assumed

failure to have confided in anyone about the sexual

offenses.

We presume the jury followed the court's instructions. See State v. Vega-

Larregui, 246 N.J. 94, 126 (2021). Having reviewed the entire record, we are

satisfied the judge did not err in admitting the testimony of J.H. and K.H.

regarding J.H.'s disclosure of the defendant's sexual assaults to K.H.

IV.

We next consider defendant's argument "the trial court erred in refusing

to tailor the jury instructions for anal intercourse." We disagree.

During the charge conference, defense counsel requested the inclusion of

the following language regarding anal intercourse: "Insertion of the penis in the

left and right buttocks does not constitute anal intercourse." The State objected ,

urging the judge to follow the Model Jury Charge which provides: "anal

intercourse is penetration of any depth into the anus."

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The judge, agreeing with the State's position, stated:

I'm going to follow the Model Jury Charge. I

understand, [defense counsel's] argument, and I do

think it's the, somewhat, lynchpin of the case, sir, so I

would say I'm giving you the short shrift, but I think the

Model Charge is the way to go here in that particular

matter. And I think the charge, the facts, we'll have

their testimony, based on the Model Charge. How you

argue that in summation is something else, but I'm not

going to change the Model Charge, so you understand

my reasoning.

During summation, the prosecutor argued:

The defendant – for something to be some penetration,

there has to be some type of force. "I'm not stupid; I

know the damn law well." The defendant does not

know the damn law well. He freely admitted to oral,

and oral is penetration. He thinks that it's just vaginal

or anal is penetration. Oral is penetration. Hot dog bun.

In between the outer lips of the vagina, as [the judge]

will instruct you, that's penetration. That's vaginal

intercourse. He admits to touching. He admits to

feeling, her touching me, oral, hot dog bun. The last

two are penetration.

Following the State's closing argument, defense counsel moved for a

mistrial. He argued the prosecutor's representation that "hot dog bun equals

penetration" was legally flawed because "that does not constitute [anal]

intercourse." The State countered its reference to "hot dog in a bun" during

summation related to defendant placing his penis "between the lips of [J.H.'s]

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vagina." The judge denied defendant's mistrial motion, reiterating he would

provide the Model Jury Charge to the jury.

As to counts twelve, seventeen, and twenty-two, alleging defendant had

anal intercourse with J.H., the judge instructed the jury:

In order for you to find [defendant] guilty of this

charge, the State must prove the following elements

beyond a reasonable doubt. One, the defendant

committed an act of sexual penetration with J.H. . . .

The first element the State must prove beyond a

reasonable doubt is that the defendant committed an act

of sexual penetration with J.H. According to the law,

anal intercourse constitutes sexual penetration. Any

amount of insertion, however slight, constitutes

penetration. That is, the depth of insertion is not

relevant. The definition of anal intercourse is

penetration, however slight, into the anus.

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Carrero, 229 N.J. 118, 127 (2017) (quoting State v. Daniels, 224 N.J.

168, 180 (2016)). In charging a jury, a "trial court must give 'a comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J.

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

"[B]ecause correct jury charges are especially critical in guiding deliberations

in criminal matters, improper instructions on material issues are presumed to

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constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004). "The

test to be applied . . . is whether the charge as a whole is misleading, or sets forth

accurately and fairly the controlling principles of law." Baum, 224 N.J. at 159

(quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).

"[A] jury charge is presumed to be proper when it tracks the model jury

charge because the process to adopt model jury charges is 'comprehensive and

thorough.'" State v. Cotto, 471 N.J. Super. 489, 543 (App. Div. 2022) (quoting

State v. R.B., 183 N.J. 308, 325 (2005)). "Ordinarily, the better practice is to

mold the instruction in a manner that explains the law to the jury in the context

of the material facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988).

"However, there is no principle requiring that in every case a court must deliver

a specifically tailored instruction relating the facts of the case to the applicable

law." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002). Accordingly,

"not every failure [to tailor jury instructions] is fatal." Cotto, 471 N.J. Super. at

544 (alteration in original) (citing State v. Tierney, 356 N.J. Super. 468, 482

(App. Div. 2003)).

Defendant argues the judge deprived him "of due process and a fair trial

in refusing to provide tailored jury instructions on anal intercourse given the

facts of this case." Defendant, relying on State v. Gallagher, 286 N.J. Super. 1,

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13-15 (App. Div. 1995), contends a tailored instruction was necessary because

"slightly penetrating between the two cheeks does not constitute anal

penetration."

Here, the judge followed the Model Jury Charge, which provides: "The

definition of 'anal intercourse' is penetration, however slight, into the anus."

Model Jury Charges (Criminal), "Aggravated Sexual Assault Victim At Least

13 But Less Than 16 (N.J.S.A. 2C:14-2a(2))" (rev. Mar. 10, 2018) (emphasis

added). In Gallagher, we found the trial court erred in charging the jury that

"insertion of the penis into the crevice formed by the left and right buttocks to

any degree" constituted penetration. 286 N.J. Super. at 13. The Model Jury

Charge in its present form was drafted based on our holding in Gallagher. By

following the Model Jury Charge verbatim, the judge did not err in declining to

tailor the charge regarding anal intercourse.

Moreover, based on our review of the record, the State's closing arguments

did not discuss anal intercourse when the prosecutor referred to defendant's "hot

dog bun" comment. Rather, that portion of the State's summation addressed

vaginal intercourse. In the context of vaginal intercourse, sexual penetration

includes penile penetration of the outer area of the vaginal opening. State v.

J.A., 337 N.J. Super. 114, 115 (App. Div. 2001).

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Even if we agreed that State's comments during summation were

improper, which we do not, the judge also provided the following jury

instruction:

Arguments and the statements or remarks, openings and

summations of counsel are not evidence and must not

be treated as evidence. Although the attorneys may

point out what they think important in this case, you

must rely solely on your understanding and

recollections of the evidence that was admitted during

the trial.

Whether or not the defendant has been proven guilty

beyond a reasonable doubt is for you to determine

based on all of the evidence presented during the trial.

Any comments by counsel are not controlling. It is

your sworn duty to arrive at a just conclusion after

considering all of the evidence which was presented

during the course of the trial.

Further, as we previously stated, the evidence against defendant was

overwhelming. Based on the record as a whole, we discern no error in the

judge's jury instructions or the judge's denial of defendant's request for a mistrial

based on certain comments during the State's summation.

V.

We reject defendant's argument that cumulative errors during the course

of his trial warranted reversal of his convictions. "[E]ven when an individual

error or series of errors does not rise to reversible error, when considered in

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combination, their cumulative effect can cast sufficient doubt on a verdict to

require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). "Where the

aggregation of legal errors renders a trial unfair, a new trial is required." State

v. T.J.M., 220 N.J. 220, 238 (2015). However, this principle does not apply

"where no error was prejudicial and the trial was fair." Ibid. (quoting State v.

Weaver, 219 N.J. 131, 155 (2014)).

Defendant failed to demonstrate any error or pattern of errors, rising to

the level, either singly or cumulatively, that denied him a fair trial. "A defendant

is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J. 308, 334

(2005) (quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)).

VI.

In the event we decline to reverse defendant's convictions, he argues in

the alternative that resentencing is required because the court "double-counted

elements of the offenses to support aggravating factor one and inappropriately

allowed its sense of moral outrage to color the sentencing decision." We

disagree.

As for aggravating factor one, the nature and circumstances of the offense,

the judge stated:

[The jury] found that [defendant] had consistently

sexually assaulted his stepdaughter. The [j]ury found

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that his conduct started in June of 2015 when she was

eleven years old and continued through November of

2017. This [j]ury found that this defendant repeatedly

raped her vaginally, anally, forced her to perform

fellatio against her will for a period of twenty-nine

months until, ironically, the end of November,

Thanksgiving weekend of 2017. The [j]ury agreed with

the State that defendant caused this nightmare and hell

for this young girl who had looked to this defendant for

trust and guidance in her life as her parental influence.

Nightmares are supposed to end; but [J.H.] indicates in

her statement that [they have] not . . . .

I remember one point in the trial the court staff had to

direct me to [J.H.] who was faced down on the stand,

crying after she recounted the torture inflicted on her

by this defendant. We all listened to the tapes, the

phone calls that defendant knew were taped where he

attempted to force the mother of his child, as well as the

child he abused for twenty-nine months, to recant

abuse. [J.H.] is a woman of courage and this is her day

where she should be acknowledged for overcoming the

horror she went through. I'm putting him away forever.

....

Certainly, aggravating factor one applies. This sexual

abuse started at age [eleven]. She was playing doctor

with her two other sisters and this predator took her

from a game of love and innocence into his own marital

bedroom and began to sexually abuse her. I give

aggravating [factor one] heavy weight.

We review sentencing determinations under a deferential standard. State

v. O’Donnell, 117 N.J. 210, 215 (1989). We will disturb a sentence only in the

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following circumstances: where the sentencing guidelines were not followed,

the aggravating and mitigating factors found by the judge were unsupported by

the evidence, or the judge's application of the sentencing guidelines rendered the

sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Under

this deferential standard, only when the facts and law show "such a clear error

of judgment that it shocks the judicial conscience" should a sentence be

modified on appeal. Id. at 363-64.

Defendant focuses his argument on the judge's application of aggravating

factor one. Under that factor, the sentencing judge "reviews the severity of the

defendant's crime, 'the single most important factor in the sentencing process,'

assessing the degree to which defendant's conduct has threatened the safety of

its direct victims and the public." State v. Fuentes, 217 N.J. 57, 74 (2014)

(quoting State v. Lawless, 214 N.J. 594, 609 (2013)). This analysis "must be

premised upon factors independent of the elements of the crime and firmly

grounded in the record." Id. at 63.

In appropriate cases, "a sentencing court may justify the application of

aggravating factor one, without double-counting, by reference to the

extraordinary brutality involved in an offense." Fuentes, 217 N.J. at 75 (citing

O'Donnell, 117 N.J. at 217). "A sentencing court may consider 'aggravating

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facts showing that [a] defendant's behavior extended to the extreme reaches of

the prohibited behavior.'" Ibid. (quoting State v. Henry, 418 N.J. Super. 481,

493 (Law Div. 2010)).

Here, we recognize the judge cited J.H.'s age and her relationship with

defendant in finding aggravating factor one applied. However, these were not

the sole bases for the judge's application of that aggravating factor. The judge

also cited the length of the abuse, the manner of the abuse, and the effect the

abuse had on J.H. and her family. On this record, we are satisfied the judge did

not err in finding that aggravating factor one applied because the judge premised

his findings as to this factor independent of the elements of the crime.

We also reject defendant's argument that he is entitled to resentencing

"because the trial judge allowed his sense of moral outrage and indignation to

overwhelm the legal process." Based on our review of the record, the judge was

acutely aware of his role in sentencing. During the sentencing hearing, the judge

stated:

I'm guided by certain settled principles of law. The

case law tells me that there is the need for

dispassionate, even[-]handed conduct is most acute in

this sentencing phase of a criminal trial because it is the

critical phase of the criminal process that my role

changes from the arbitrator of legal disputes which

arise[] during the course of the trial to dispenser of

society's justice.

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....

I want to be guided exclusively by the factors which are

established by law and not by my own personal code of

conduct.

Here, no evidence supports defendant's assertion that the judge's "sense of

moral outrage" impacted the sentence imposed. To the contrary, the record

reflects the judge followed the sentencing guidelines. Additionally, the judge's

findings regarding the aggravating and mitigating factors were supported by the

record. Further, defendant's sentence does not "shock the judicial conscience."

VII.

Along the same vein, in his pro se brief, defendant argues that "he [was]

not . . . able to receive a fair and impartial trial or hearing in front of [the trial

judge] due to the conflict of interest of his actions, demeanor[,] and tone of voice

had me to believe that, he did not follow the rules of law." Having considered

defendant's contentions in view of the extensive record, we conclude they lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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