STATE OF NEW JERSEY VS. M.C. STATE OF NEW JERSEY VS. E.W. (11-08-0888, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-1137-15T1

A-1148-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.C.,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.W.,

Defendant-Appellant.

___________________________

Submitted May 7, 2018 – Decided August 3, 2018

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No. 11-

08-0888.

Joseph E. Krakora, Public Defender, attorney

for appellant M.C. (Brian P. Keenan, Assistant

Deputy Public Defender, of counsel and on the

brief).

Joseph E. Krakora, Public Defender, attorney

for appellant E.W. (Richard Sparaco,

Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney

for respondent (Sarah E. Elsasser, Deputy

Attorney General, of counsel and on the

briefs).

PER CURIAM

These back-to-back appeals are consolidated for this opinion.

In A-1148-15, defendant E.W. appeals from his convictions and

sentence for kidnapping, sexual assault and two counts of

aggravated sexual assault. In A-1137-15, defendant M.C. appeals

from his convictions for sexual assault and two counts of

aggravated sexual assault. Based on our review of the record and

defendants' arguments under the applicable legal principles, we

affirm their convictions, vacate the sentences on their

convictions for first-degree aggravated sexual assault under

N.J.S.A. 2C:14-2(a)(7) and remand for resentencing on those

charges.

I.

The charges against defendants arose out of an alleged

kidnapping and sexual assault of thirty-year-old S.S. on the

evening of January 31, 2011, and early morning hours of February

1, 2011. E.W. was charged in an indictment with first-degree

2 A-1137-15T1

kidnapping, N.J.S.A. 2C:13-1(b)(1), first-degree aggravated sexual

assault while aided or abetted by another and by using physical

force or coercion, N.J.S.A. 2C:14-2(a)(5), first-degree sexual

assault upon a victim E.W. knew, or should have known, was mentally

defective, N.J.S.A. 2C:14-2(a)(7), second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1), and third-degree witness tampering,

N.J.S.A. 2C:28-5(a). The court dismissed the witness tampering

charge prior to trial.

M.C. was charged in the indictment with first-degree

aggravated sexual assault while aided or abetted by another and

by using physical force or coercion, N.J.S.A. 2C:14-2(a)(5),

first-degree sexual assault upon a victim M.C. knew, or should

have known, was mentally defective, N.J.S.A. 2C:14-2(a)(7), and

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

At defendants' joint trial, the evidence showed that in

January 2011, S.S., who is in the moderate to severe range of

"mental retardation,"1 resided with her adoptive mother, B.S., and

1

We recognize the term "mental retardation" is disfavored, and

the term "intellectual disability" is currently accepted in the

medical community "to describe the identical phenomenon." Hall

v. Florida, 582 U.S. ___, ___, 134 S. Ct. 1986, 1990 (2014); see

also American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 33 (5th ed. 2014) (explaining

"intellectual disability is the term in common use by medical,

educational, and other professions and by the lay public and

advocacy groups" to refer to the disability previously denominated

3 A-1137-15T1

another female family member, L.L. B.S. adopted S.S. when S.S.

was seven months old and, at age five, S.S. was diagnosed as

severely handicapped. S.S. attended a school for special needs

children until she was twenty-one.

S.S. cannot read, write, cook or use public transportation

on her own, and is not capable of holding a job, does not understand

the value of money, and cannot function independently. As a result

of her handicap, S.S. considered anyone who was nice to her to be

her friend, and believed anything that was told to her. S.S. gave

birth to children in 2009 and 2010, both of whom were removed from

her care. Prior to January 31, 2011, L.L. assisted S.S. with

daily hygiene, bathing, and looked after her while B.S. was at

work. After the incident alleged in the indictment, S.S. moved

to a group home because she is unable to care for herself.

Shortly before January 31, 2011, S.S. joined a church where

she met E.W., who was also a member. B.S. and L.L. did not join

or attend this church with her. On January 31, 2011, L.L.

overheard telephone calls between S.S. and a man who was identified

as E.W. According to L.L., E.W. pressured S.S. to attend Bible

as "mental retardation"). We use the term "mental retardation"

and others, such as mental disability and mental defect, because

they are the terms employed by the court, counsel and witnesses

during trial.

4 A-1137-15T1

study at the church during the phone calls. S.S. agreed to go to

the Bible study, and provided E.W. with her address.

At approximately 10:00 p.m., E.W. arrived at S.S.'s home in

a van driven by another person, and introduced himself to L.L. and

B.S. L.L. testified that E.W. looked like he had had "one or two

drinks," but did not have difficulty responding to her or B.S.'s

questions. E.W. said he was taking S.S. to Bible study classes,

and promised to bring her home afterward. B.S. and L.L. acquiesced

because church members often transported S.S. to services and

classes, and they expected S.S. to return that night. In his

statement to police, E.W. acknowledged drinking that day, and

picking up S.S. at her home, but claimed he and S.S. planned only

to "hang out."

Although there was conflicting evidence concerning the timing

and sequence of the events immediately following E.W. and S.S.'s

departure from her home, it is undisputed E.W. and S.S. got into

a van that had two other men in it. Approximately two hours after

the van departed from S.S.'s home, the driver of the van dropped

off E.W. and S.S. at E.W.'s home, and left with the other

passenger.

When E.W. and S.S. arrived at the home, they were met by

M.C., E.W.'s brother and an individual identified as V.B. The

five individuals spent time on the porch drinking and then went

5 A-1137-15T1

inside. At approximately 2:30 a.m., E.W., M.C. and V.B. went into

the basement with S.S.

S.S. testified that, once in the basement, E.W. took her

clothes off, "made [her] go down on him," "stuck his thing in

[her]," and "hit [her] from [her] back," meaning E.W. made her

perform oral sex on him, and vaginally and anally penetrated her

with his penis. She also testified that an individual later

identified as M.C. did the same thing to her. S.S. testified she

told the men to stop, but they did not.2 S.S. explained that when

the assaults ended, she slept on a chair in E.W.'s room and, when

she awoke the next morning, E.W.'s sister arranged for a cab to

take S.S. home.

When S.S. arrived home, L.L. thought S.S. seemed unusually

quiet, was very dirty and smelled badly. S.S. initially refused

to answer L.L.'s questions, but then told L.L. that E.W. put his

penis in her mouth, another man put his penis in her anus and her

anus was very sore. S.S. told L.L. that she told the men "no,"

but they forced her to engage in the sexual activity.

2

S.S. also testified she provided a statement to the police

stating that she went "down on" E.W. while his friend penetrated

her anally from behind, and that E.W. and his friend switched

places and the same things occurred.

6 A-1137-15T1

L.L. called E.W., who acknowledged putting his penis in S.S.'s

mouth, denied having sexual intercourse with S.S. and asked L.L.

not to call the police. L.L., however, then notified the police.

S.S. subsequently took the police to E.W.'s house and provided

a description of E.W., but was unable to identify M.C. Pursuant

to police instructions, L.L. brought S.S. to Muhlenberg Hospital

for an evaluation. Thelma Kaiser, a trained Sexual Assault Nurse

Examiner (SANE), conducted an examination and evaluation in the

emergency room on February 1, 2011. She took S.S.'s medical

history, observed S.S. to be "very sleepy," and asked S.S. about

the incident.

Kaiser examined S.S. and observed injuries to her vaginal and

anal areas, including a one-quarter inch anal tear. Kaiser found

no other visible injuries such as bites or burns. Kaiser offered

S.S. antibiotics and emergency contraceptive medication.

S.S., B.S., and L.L. each gave formal statements to police,

but they were not introduced in evidence at trial. As a result

of her mental disability, S.S.'s statement was taken at the Child

Advocacy Center.

Union County Prosecutor's Office detective Edward Rivera

interviewed E.W. on February 3, 2011. The video recording of

E.W.'s voluntary statement was admitted in evidence and played for

the jury. E.W. said he knew S.S. from church, and she had a crush

7 A-1137-15T1

on him and asked to perform oral sex on him and have sexual

intercourse with him. He admitted picking up S.S. at her home,

and taking her to his family's home to "hang out." E.W. explained

that S.S. wanted to kiss him, hug him and "love" him, but he was

not attracted to her.

E.W. said S.S. voluntarily performed oral sex on him, but he

denied engaging in sexual intercourse with or forcing her to do

anything. He also said he "didn't notice she had anything wrong

mentally" and claimed he just wanted to "be her friend."

On February 8, 2011, Rivera and Union County Prosecutor's

Office detective Brian O'Malley interviewed M.C. A transcript of

the interview was read to the jury at trial. M.C. admitted being

on the porch of E.W.'s family's home with V.B. and E.W.'s brother

late in the evening on January 31, 2011, when E.W. arrived with a

woman. He denied entering the house that evening and engaging in

any sexual activity with S.S., stating:

Nah. I didn't mess with her. Nothing. I

didn't even do nothing with that girl or

nothing. You know what I'm saying? That's

crazy though they would put my name in it, you

know what I'm saying, and say I had something

to do with it. I ain't had nothing to do with

that chick. If I did have something to do

with it, I would say I did though, but I didn't

though. You know what I'm saying?

Monica Ghannam, a forensic scientist employed in the Union

County Prosecutor's Office's forensic laboratory, analyzed

8 A-1137-15T1

vaginal, cervical, and anal swabs taken from S.S. and her underwear

during Kaiser's examination, and DNA samples from S.S., E.W., M.C.

and V.B. Ghannam testified S.S.'s cervical specimens tested

negative for acid phosphatase and sperm, but the anal swab tested

positive for acid phosphatase and sperm. Samples taken from the

back panel and interior crotch area of S.S.'s underwear, also

tested positive for acid phosphatase and sperm.

Ghannam, who was qualified as an expert witness in the field

of serology and DNA analysis, opined that "the mixture of those

two individuals [E.W. and M.C.] accounts for all the DNA types

that are in the sperm fraction from the anal swabs." She further

testified the semen collected from the anal specimen matched both

E.W. and M.C., and the semen from S.S.'s underwear matched M.C.

Ghannam testified V.B.'s DNA was not found at a detectable level

on any of the samples taken from S.S.

Dr. Louis Schlesinger was qualified as an expert in forensic

psychology. He evaluated S.S. and testified she "can do basic,

minimal things" and was "very pleasant and very friendly" but had

"very significant brain damage." Schlesinger explained that S.S.

had "no functional academic skills," could not drive, read, or

write and did not have a bank account, but could operate a cell

phone.

9 A-1137-15T1

Schlesinger conducted a number of psychological tests on S.S.

that revealed she is "very, very childlike and regressive," and

typical of someone who is "mentally retarded." Schlesinger

determined S.S. had "very, very low" cognitive functioning and an

I.Q. of approximately forty-five, placing her in the moderate to

severe range of mental retardation. He found S.S. had "impairment

in almost all areas of adaptive functioning."

During the evaluation, S.S. told Schlesinger that

[o]ne of the boys made me go down on him and

the other made me suck him off. One put it

in my butt and I still got the bruise on the

back of my butt. I told him I wanted to go

home but he wouldn't let me go home. I kept

telling him no. I didn't want to do it. He

kept forcing me. I kept saying no. Then I

went home after that.

Schlesinger noted a number of inconsistencies in S.S.'s

version of the incident, but nonetheless found her to be "very

credible" and suggested that inconsistencies were not surprising

given her low intelligence. He opined that S.S. understands the

basic mechanics of sex and "knows people don't have the right to

force her to have sex" but concluded she had only a minimal ability

to resist engaging in sex and was incapable of exercising her

right to refuse to engage in sexual activity on the night of the

incident. He testified that she "cannot fend off anything" and

was "unable to exercise any of her rights not to consent."

10 A-1137-15T1

E.W. called one witness, V.B. V.B. testified he was at his

home with M.C., E.W.'s brother and E.W.'s brother's friend at 9:00

or 10:00 p.m. on January 31, 2011. They left his home, walked to

a local bank and, as they returned, he saw E.W. in a parked van

receiving oral sex from a woman. He testified the woman appeared

willing, and there was no evidence of force.

Later, he was across the street from E.W.'s house and saw the

van drop off E.W. and S.S. V.B. testified that he, M.C. and E.W.'s

brother walked across the street and joined E.W. and S.S. on the

porch of E.W.'s house. The group walked into the hallway of the

home, and he, E.W., M.C. and S.S. decided to go into the basement

to get warm. V.B. testified S.S. was not reluctant to enter the

basement and "wanted to be there."

According to V.B., once in the basement, E.W. and M.C.

simultaneously engaged in unprotected sexual activity with S.S.,

who did not cry, scream, or request that they stop. V.B. testified

S.S. said "I like that Daddy. It's good. Keep it going." V.B.

explained that during the approximately one hour and fifteen

minutes they were in the basement, E.W. and M.C.'s sexual activity

with S.S. continued, and she did not complain. V.B. denied

engaging in sexual activity with S.S., and explained that E.W.

invited S.S. upstairs to go to bed, and he and M.C. left E.W.'s

home.

11 A-1137-15T1

The jury convicted E.W. and M.C. on each of the charges

against them. E.W. made a motion for acquittal or, in the

alternative, for a new trial, which the court denied.

The court merged E.W.'s conviction for second-degree sexual

assault with his conviction for first-degree kidnapping and

sentenced defendant to twenty years subject to the requirements

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

imposed concurrent eighteen-year terms, subject to NERA's

requirements, on E.W.'s two first-degree aggravated sexual assault

convictions. E.W. appealed.

The court merged M.C.'s conviction for second-degree sexual

assault with his conviction for first-degree aggravated sexual

assault under N.J.S.A. 2C:14-2(a)(5), and imposed an eighteen-year

custodial term subject to NERA. The court imposed a concurrent

eighteen-year term subject to NERA on M.C.'s conviction for first-

degree aggravated sexual assault under N.J.S.A. 2C:14-2(a)(7).

M.C. appealed.

On appeal, E.W. presents the following arguments for our

consideration.

POINT I

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL

DUE TO MULTIPLE HEARSAY STATEMENTS BY THE SANE

NURSE REGARDING WHAT THE ALLEGED VICTIM TOLD

HER DURING HER EVALUATION.

12 A-1137-15T1

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL

DUE TO [THE] COURT'S DENIAL OF HIS MOTION FOR

SEVERANCE.

POINT III

THE COURT'S SENTENCE OF THE TWENTY YEARS WAS

EXCESSIVE.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTIONS FOR JUDGMENTS OF ACQUITTAL N.O.V. OR

NEW TRIAL[.]

M.C. separately offers the following arguments in support of

his appeal:

POINT I

[M.C.] WAS GRAVELY PREJUDICED BY THE TRIAL

JUDGE'S ERROR IN DENYING HIS MOTION TO SEVER

CODEFENDANT [E.W.]'S KIDNAPPING CHARGE.

POINT II

THE TRIAL JUDGE ERRED IN DENYING [M.C.]'S

MOTION FOR A JUDGEMENT [SIC] OF ACQUITTAL ON

THE SEXUAL ASSAULT – MENTAL DEFECT CHARGE, AND

INSTEAD PROVIDED AN INSTRUCTION THAT LOWERED

THE STATE'S BURDEN BY DIRECTING THE JURY TO

CONSIDER THE FACTS SURROUNDING THE INCIDENT

IN DETERMINING WHETHER [S.S.] HAD THE

REQUISITE MENTAL DEFECT.

POINT III

THE TRIAL JUDGE ERRED IN ALLOWING THE

PROSECUTOR TO ARGUE IN SUMMATION, WITHOUT THE

SUPPORT OF EXPERT-OPINION TESTIMONY, THAT THE

COMPLAIN[]ANT'S QUARTER-INCH ANAL TEAR WAS

13 A-1137-15T1

EVIDENCE INDICATING THAT THE INTERCOURSE WAS

NONCONSENSUAL.

POINT IV

THE STATE EXPERT'S TESTIMONY INVADED THE

DOMAIN OF THE JURY BY IMPROPERLY OPINING ON

THE ULTIMATE ISSUE AND THE CREDIBILITY OF

OTHER WITNESSES.

POINT V

THE TRIAL JUDGE ERRED IN APPARENTLY USING AN

ELEMENT OF ONE OF THE OFFENSES TO FIND TWO

AGGRAVATING FACTORS, AND IN FAILING TO EXPLAIN

THE APPLICATION OF AGGRAVATING FACTORS AND

REJECTION OF MITIGATING FACTORS, RESULTING IN

A MANIFESTLY EXCESSIVE SENTENCE.

II.

We first address E.W.'s arguments in A-1148-15 concerning

alleged trial errors. He contends the court erred by allowing

Kaiser to testify concerning statements made by S.S. during her

examination at the hospital. He also contends the court erred by

denying his motions for severance and a new trial. For the

following reasons, we find no merit to E.W.'s arguments.

A.

Kaiser testified about statements S.S. made during her

February 1, 2011 examination at the hospital. Kaiser detailed

what was reflected in her report during the following exchange:

Q. And in his case did [S.S.] give you a

description of the incident?

A. Yes.

14 A-1137-15T1

Q: And can you tell us what she said?

A: It's in quotes. He brought me to his

house. Right away I went down on him and he

stuck his thing in my butt and also vagina. I

was screaming and the upstairs neighbor came

down and gave me cab money to go home. My

sister called police. She went down on – she

went down and E and second guy his butt and

vaginal and kept saying – I kept saying no,

stop, but he didn't.

Q. Does that say[,] "put in her butt," I think

the third or fourth line from the bottom?

A. Yeah, put in her butt.

E.W. did not object to the testimony, and argues for the

first time on appeal the court committed plain error by permitting

the State to elicit inadmissible hearsay testimony. He contends

Kaiser's testimony was not admissible as fresh-complaint evidence,

see State v. R.K., 220 N.J. 444, 455 (2015) (explaining the fresh-

complaint doctrine), or under N.J.R.E. 803(c)(4), which allows

admission of statements made in good faith for purposes of medical

diagnosis or treatment, because Kaiser's examination was conducted

for "evidence-gathering purposes."

It is unnecessary to consider whether S.S.'s statements to

Kaiser were admissible as fresh-complaint evidence because the

State does not contend they were. The State argues Kaiser's

testimony concerning S.S.'s statements was admissible under

N.J.R.E. 803(c)(4), which provides:

15 A-1137-15T1

Statements made in good faith for purposes of

medical diagnosis or treatment which describe

medical history, or past or present symptoms,

pain, or sensations, or the inception or

general character of the cause or external

source thereof to the extent that the

statements are reasonably pertinent to

diagnosis or treatment.

"It 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 [or her] physician for the purpose of diagnosis and

treatment are admissible in evidence as an exception to the hearsay

rule." Cestero v. Ferrara, 57 N.J. 497, 501 (1971). The

"rationale" for the rule "is that such statements possess inherent

reliability because 'the patient believes that the effectiveness

of the treatment [she] receives may depend largely upon the

accuracy of the information [she] provides the'" medical care

provider. R.S. v. Knighton, 125 N.J. 79, 87 (1991) (citation

omitted).

To be admissible under N.J.R.E. 803(c)(4), a patient's

statements must be "made in good faith for purposes of medical

diagnosis or treatment." State v. Pillar, 359 N.J. Super. 249,

289 (App. Div. 2003) (quoting N.J.R.E. 803(c)(4)). The rule is

based upon a presumed "treatment motive," and thus a statement by

a declarant who "is unaware that his or her statements will enable

a physician to make a diagnosis and administer treatment" lacks

16 A-1137-15T1

the requisite degree of trustworthiness to qualify under this

exception. R.S., 125 N.J. at 87-88. For that reason, hearsay

obtained during evidence gathering and medical consultations

conducted purely in preparation for litigation remains

inadmissible. State in the Interest of C.A., 201 N.J. Super. 28,

33 (App. Div. 1985); see also Pillar, 359 N.J. Super. at 289

(noting "[t]here is no doubt that if the examination . . . was

conducted for evidence gathering purposes, the hearsay statements

contained in the medical history would be inadmissible as not

falling within" N.J.R.E. 803(c)(4)).

To be admissible, the statements must "describe medical

history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source

thereof to the extent that the statements are reasonably pertinent

to diagnosis or treatment." Pillar, 359 N.J. Super. at 289

(quoting N.J.R.E. 803(c)(4)). Thus, "ordinarily statements made

as to the cause of the symptoms or conditions" are not admissible,

Cestero, 57 N.J. at 501, because they are not relevant to the

patient's treatment, State v. McBride, 213 N.J. Super. 255, 273

(App. Div. 1986).

Kaiser testified the purpose of her examination was twofold:

to take care of S.S. "mentally [and] physically," and to collect

evidence. Kaiser asked S.S. to describe what occurred in order

17 A-1137-15T1

to determine where to look for injuries, and then conducted a

physical examination during which she assessed S.S.'s injuries,

but also gathered evidence for law enforcement. She also provided

S.S. with care following the examination, offering S.S. medication

for any sexually transmitted diseases and a pill to prevent

pregnancy. The evidence also showed S.S. went to the hospital

solely because the police instructed her to do so.

It is unclear from the record whether S.S. made the statements

to obtain medical treatment, provide evidence or both. It is

therefore not possible to determine whether her statements were

made with a "treatment motive" and had the requisite

trustworthiness to allow their admission under N.J.R.E. 803(c)(4).

R.S., 125 N.J. at 87. In any event, her statements she was brought

to "his house," was "screaming and the upstairs neighbor came down

and gave [her] cab money to go home," her "sister called the

police," and she "kept saying no, stop, but he didn't" are

unrelated to her medical history, her injuries and the need for

treatment, and are inadmissible under N.J.R.E. 803(c)(4). See

Cestero, 57 N.J. at 501; Pillar, 359 N.J. Super. at 289.

Because there was no objection to Kaiser's testimony about

S.S. statements at trial, we consider its admission under the

plain error standard. R. 2:10-2. We will disregard the error

unless it is "clearly capable of producing an unjust result."

18 A-1137-15T1

State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2);

State v. Bakka, 176 N.J. 533, 547-48 (2003). The error must be

"sufficient to raise a reasonable doubt as to whether [it] led the

jury to a result it otherwise might not have reached." State v.

Macon, 57 N.J. 325, 336 (1971). Based on that standard, we find

no plain error in the admission of Kaiser's testimony.

The testimony added little and did not prejudice E.W. S.S.

testified at trial, provided the same version of the events she

relayed to Kaiser and was subject to cross-examination. Moreover,

in E.W.'s statement to the police, he corroborated that he was

with S.S. and took her to his home and into the basement. The

evidence established E.W.'s DNA was found in S.S.'s anus. Indeed,

E.W.'s counsel's decision to allow the testimony without objection

"weigh[s] heavily" against a finding of prejudice establishing

plain error. State v. Cain, 224 N.J. 410, 432 (2016). "[A]ny

finding of plain error depends on an evaluation of the overall

strength of the State's case." State v. Nero, 195 N.J. 397, 407

(2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)); see

also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming

conviction given the strength of evidence against the defendant

despite the admission of improper expert testimony); State v.

Soto, 340 N.J. Super. 47, 65 (App. Div. 2001) (holding that

erroneous admission of hearsay testimony that the defendant was

19 A-1137-15T1

involved in a robbery was harmless error in view of the other

proofs establishing guilt). We have considered the trial record,

the weight of the evidence against E.W., and the insignificance

of Kaiser's testimony concerning S.S.'s statements, and are

satisfied the testimony was not clearly capable of producing a

result the jury would not have otherwise reached.

B.

E.W. next claims the court erred by denying his motion to

sever his trial from M.C.'s. In M.C.'s statement to the police,

he explained that when he saw S.S. on January 31, 2011, he observed

that "something is wrong with her" and "she [is] not too – up

here[,] she [is] not wrapped too tight." After the court

determined those statements were admissible in E.W. and M.C.'s

joint trial, E.W. made a severance motion claiming admission of

the statements violated his Sixth Amendment right to confront the

witnesses against him. See Bruton v. United States, 391 U.S. 123,

136 (1968); State v. Weaver, 219 N.J. 131, 153 (2014). The court

denied the motion, finding severance was unnecessary because the

statements did not infringe on E.W.'s confrontation rights under

Bruton.

There is a high risk of prejudice to a defendant "where the

powerfully incriminating extrajudicial statements of a

codefendant, who stands accused side-by-side with the defendant,

20 A-1137-15T1

are deliberately spread before the jury in a joint trial." Bruton,

391 U.S. at 135-36. Thus, where a co-defendant does not testify

at trial, those portions of the co-defendant's statements that

directly implicate a defendant are not admissible. Id. at 132;

Weaver, 219 N.J. at 153.

As our Supreme Court recognized in Weaver, "Bruton's

application is limited" and "does not apply to a statement that

is linked to the defendant only through other evidence and 'is not

incriminating on its face.'" 219 N.J. at 153 (quoting Richardson

v. Marsh, 481 U.S. 200, 208 (1987)); see also Gray v. Maryland,

523 U.S. 185, 195-96 (1998); Richardson, 481 U.S. at 208. "If the

co-defendant's incriminatory statement requires the jury to make

an inferential step to link the statement to the defendant, the

statement is admissible." Weaver, 219 N.J. at 159.

Here, M.C.'s statements concerning his observations of S.S.

do not, on their face, directly implicate E.W. in the commission

of any crime. To the contrary, they pertain solely to M.C.'s

perceptions, and do not provide any information about E.W. or his

observations of S.S. E.W. argues the jury may have relied on

M.C.'s statements to conclude that he also perceived S.S. as having

a mental disability or defect, but the jury's potential use of the

statements to make such an inferential link did not violate E.W.'s

confrontation rights under Bruton. Id. at 153, 159. Thus, the

21 A-1137-15T1

court correctly denied E.W.'s severance motion because M.C.'s

statements were admissible at their joint trial.

We also reject E.W.'s contention, made for the first time on

appeal, that M.C.'s statements should have been excluded under

N.J.R.E. 403 because they were unduly prejudicial and of no

probative value. Where a party objects to the admission of

evidence under N.J.R.E. 403 as unduly prejudicial, "the inquiry

. . . is whether the probative value of the evidence 'is so

significantly outweighed by [its] [prejudicial] inflammatory

potential as to have a probable capacity to divert the minds of

the jurors from a reasonable and fair evaluation of the' issues."

State v. Cole, 229 N.J. 430, 448 (2017) (first alteration in

original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

The party challenging the admission of evidence under N.J.R.E. 403

has the burden of showing the evidence should be excluded.

Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).

M.C.'s knowledge of S.S.'s mental disability was an element

of one of the offenses with which he was charged. He and E.W.

were each charged with violating N.J.S.A. 2C:14-2(a)(7), which at

the time of the January 31, 2011 incident, provided that:

An actor is guilty of aggravated sexual

assault if he commits an act of sexual

penetration with another person under any one

of the following circumstances:

22 A-1137-15T1

. . . .

(7) The victim is one whom the actor knew or

should have known was physically helpless,

mentally defective or mentally

incapacitated.[3]

Thus, M.C.'s statements were highly probative because they

established he was with S.S. on January 31, 2011, and knew S.S.

suffered from a mental disability.

E.W. makes no showing the statements had any prejudicial

"inflammatory potential." See Cole, 229 N.J. at 448. In a hearing

prior to the admission of M.C.'s statements, the court ordered the

redaction of any references to E.W., and, as noted, admission of

the statements did not violate E.W.'s confrontation rights.

Moreover, there were multiple other witnesses who attested to

S.S.'s mental disability, and the court instructed the jury that

it was to separately consider the charges against E.W. and M.C.

3

One year after the January 31, 2011 incident, N.J.S.A. 2C:14-

2(a)(7) was amended. See L. 2011, c. 232. In the amendment,

which became effective on March 17, 2012, the terms "mentally

defective" and "mentally incapable" were deleted from the

definitions applicable to Chapter 14 of the Criminal Code, N.J.S.A.

2C:14-1 to -12, see L. 2011, c. 232, and N.J.S.A. 2C:14-2(a)(7)

was modified to prohibit an act of sexual penetration with another

person where "[t]he victim is one whom the actor knew or should

have known was physically helpless or incapacitated,

intellectually or mentally incapacitated, or had a mental disease

or defect which rendered the victim temporarily or permanently

incapable of understanding the nature of his conduct, including,

but not limited to, being incapable of providing consent," see

ibid.; compare N.J.S.A. 2C:14-2(a)(7) (2011), with N.J.S.A. 2C:14-

2(a)(7) (2012).

23 A-1137-15T1

based only on the evidence relevant and material to the separate

charges. In sum, there is no basis to conclude admission of the

statements violated N.J.R.E. 403, and E.W. otherwise makes no

showing that even if it did, the admission constitutes plain error.

See R. 2:10-2.

C.

We next consider E.W.'s argument that the court erred by

denying his motion for acquittal notwithstanding the verdict or,

in the alternative, a new trial. E.W. offers little in support

of the contention, other than conclusory assertions that his

convictions are not supported by sufficient evidence, and

affirmance of his convictions would constitute a manifest

miscarriage of justice.

Rule 3:18-1 provides that a court "shall . . . order . . .

a judgment of acquittal . . . if the evidence is insufficient to

warrant a conviction . . . ." The court must determine if

the evidence viewed in its entirety, and

giving the State the benefit of all of its

favorable testimony and all of the favorable

inferences which can reasonably be drawn

therefrom, is such that a jury could properly

find beyond a reasonable doubt that the

defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007);

accord State v. Reyes, 50 N.J. 454, 458-59

(1967).]

24 A-1137-15T1

We review a trial court's denial of a motion for acquittal de

novo. State v. Williams, 218 N.J. 576, 593-94 (2014).

Rule 3:20-1 allows a trial court to grant a defendant's new

trial motion "if required in the interest of justice." A trial

court's ruling on a new trial motion "shall not be reversed unless

it clearly appears that there was a miscarriage of justice under

the law." R. 2:10-1; accord State v. Perez, 177 N.J. 540, 555

(2003). Further, a "motion for a new trial is addressed to the

sound discretion of the trial judge, and the exercise of that

discretion will not be interfered with on appeal unless a clear

abuse has been shown." State v. Armour, 446 N.J. Super. 295, 306

(App. Div.) (quoting State v. Russo, 333 N.J. Super. 119, 137

(App. Div. 2000)), certif. denied, 228 N.J. 156 (2016).

Measured against these standards, we affirm the court's

denial of E.W.'s motion for acquittal or a new trial. Our review

of the record reveals ample evidence supporting defendant's

convictions. His arguments to the contrary are without sufficient

merit to warrant further discussion in a written opinion. R.

2:11-3(e)(2).

III.

We next address M.C.'s arguments in A-1137-15 that the court

erred by: denying his severance motion because he was prejudiced

by being tried with E.W., who was charged with first-degree

25 A-1137-15T1

kidnapping; denying his motion for acquittal on the first-degree

aggravated sexual assault charged under N.J.S.A. 2C:14-2(a)(7) and

incorrectly charging the jury concerning the elements of the

offense; allowing the prosecutor to argue in summation that S.S.'s

anal tear constituted evidence the intercourse was forced; and

permitting Schlesinger to testify about the credibility of other

witnesses. We are not persuaded and affirm M.C.'s convictions.

A.

Defendant first argues the court erred by denying his motion

to sever his trial from E.W.'s trial. He contends he was unduly

prejudiced by the joinder because E.W. was charged and tried for

first-degree kidnapping, and there was no allegation he had any

knowledge about the alleged kidnapping or participated in its

commission. M.C. asserts the jury's determination S.S. was a

kidnapping victim lowered the bar for the State's proofs he

committed the charged sexual assaults, and evidence concerning the

kidnapping affected the jury's perception of his interactions with

S.S.

Rule 3:7-7 permits joinder of two or more defendants who "are

alleged to have participated in the same act or transaction or in

the same series of acts or transactions constituting an offense

or offenses." State v. Brown, 170 N.J. 138, 159-60 (2001).

"[W]hen 'much of the same evidence is needed to prosecute each

26 A-1137-15T1

defendant,'" there is a "general preference to try codefendants

jointly." Id. at 160 (first quoting State v. Brown, 118 N.J. 595,

605 (1990); and then quoting State v. Robinson, 253 N.J. Super.

346, 364 (App. Div. 1992)). Although the "preference is guided

by a need for judicial efficiency, to accommodate witnesses and

victims, to avoid inconsistent verdicts, and to facilitate a more

accurate assessment of relative culpability," ibid., the "interest

in judicial economy cannot override a defendant's right to a fair

trial," ibid. (quoting State v. Sanchez, 143 N.J. 273, 282 (1996));

see also Weaver, 219 N.J. at 148 (finding a joint trial of co-

defendants is "preferable" where they "are alleged to have

participated in the same act or transaction").

Where "it appears that a defendant or the State is prejudiced

by" joinder of defendants, a court "may order . . . separate trials

of counts, grant a severance of defendants, or direct other

appropriate relief." R. 3:15-2(b). In determining a severance

motion under Rule 3:15-2(b), "a court must balance the potential

prejudice to a defendant against the interest in judicial economy."

Brown, 170 N.J. at 160. For example, "a defendant is prejudiced

by a joint trial . . . when [the] defendant's and a co-defendant's

defenses are not simply at odds, but are 'antagonistic at their

core,' meaning that they are mutually exclusive and the jury could

27 A-1137-15T1

believe only one of them." Weaver, 219 N.J. at 149 (quoting Brown,

118 N.J. at 605-07).

Disposition of a motion to sever is left to "the sound

discretion of the trial court," Brown, 170 N.J. at 160 (quoting

State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985)). We

will reverse a denial of a severance motion "only if it constitutes

an abuse of discretion." Weaver, 219 N.J. at 149.

Here, we are not persuaded the court abused its discretion

by denying M.C.'s severance motion. In the first instance, M.C.

and E.W.'s defenses at trial were not antagonistic, mutually

exclusive or irreconcilable, "meaning . . . the jury could believe

only one of them." Ibid. Through their counsel, they argued in

a consistent manner their sexual activity with S.S. was consensual

and S.S. was not a credible witness. Thus, the jury could "return

a verdict against one or both defendants by believing neither, or

believing portions of both, or, indeed, believing both

completely[.]" Brown, 170 N.J. at 160 (quoting Brown, 118 N.J.

at 606).

In addition, although E.W. was charged with kidnapping and

M.C. was not, the evidence about the kidnapping was limited,

pertained solely to E.W. and was wholly unrelated to M.C. See

State v. Manney, 26 N.J. 362, 369 (1958) (finding prejudice from

joinder of defendants "cannot be grounded merely upon that

28 A-1137-15T1

eventuality" that there will be "some evidence . . . admissible

only as to one defendant"); accord State v. Mayberry, 52 N.J. 413,

421 (1968); State v. Chaney, 160 N.J. Super. 49, 66 (App. Div.

1978). Nor was there any allegation, showing or argument that

E.W.'s kidnapping of S.S. was made known to M.C. To the contrary,

as M.C. acknowledges and argues, the kidnapping took place when

E.W. made false statements to B.S. and L.L. to remove S.S. from

her home, and there was no evidence M.C. was involved in S.S.'s

removal or was present in the vehicle that transported from her

home. The evidence concerning the kidnapping did not prejudice

M.C. because none of it pertained to him.

The court also ameliorated any potential prejudice by

instructing the jury E.W. "is charged with the crime of

kidnapping," the "charge only pertains to" E.W., and M.C. "is not

charged with kidnapping." The court further instructed the jurors

they were required to consider E.W. and M.C.'s "guilt or innocence

separately . . . on each count by the evidence that is relevant

and material to the particular charge," and "decide each case

individually," and we presume the jury followed the court's

instructions. State v. Martini, 187 N.J. 469, 477 (2006); see

also State v. Yormark, 117 N.J. Super. 315, 331-32 (App. Div.

1971) (finding the trial court did not err by denying the severance

motion where the court instructed the jury to separately consider

29 A-1137-15T1

the crimes charged against each defendant and to consider only the

evidence pertinent to each charge).

"While any joinder of offenses or defendants has some

potential for harm," Chaney, 160 N.J. Super. at 66, a mere claim

or possibility of prejudice is insufficient to require severance,

State v. Moore, 113 N.J. 239, 274 (1988). Here, M.C. fails to

demonstrate any prejudice from the joinder of the charges against

E.W. in his trial, and the court's jury instructions dissipated

any possibility of prejudice. The court did not abuse its

discretion by denying M.C.'s severance motion.

B.

M.C. next argues the court erred by denying his motion for a

judgment of acquittal at the conclusion of the State's case on

count five, which charged first-degree sexual assault in violation

of N.J.S.A. 2C:14-2(a)(7). More particularly, he claimed the

State failed to present sufficient evidence establishing S.S. was

"mentally defective" within the meaning of N.J.S.A. 2C:14-1(h)

and, as a result, the State did not prove one of the elements of

aggravated sexual assault under N.J.S.A. 2C:14-2(a)(7). M.C.

further argues the court's charge concerning N.J.S.A. 2C:14-

2(a)(7) erroneously instructed the jury to consider the facts

surrounding the incident.

30 A-1137-15T1

On January 31, 2011, N.J.S.A. 2C:14-2(a)(7) provided that

"[a]n actor is guilty of aggravated sexual assault if he commits

an act of sexual penetration with another person" where "[t]he

victim is one whom the actor knew or should have known was

physically helpless, mentally defective or mentally

incapacitated." In count five, M.C. was charged with committing

the offense because S.S. was "mentally defective." N.J.S.A. 2C:14-

1(h)4 defined "mentally defective" as a "condition in which a

person suffers from a mental disease or defect which renders that

person temporarily or permanently incapable of understanding the

nature of his conduct, including, but not limited to, being

incapable of providing consent[.]" N.J.S.A. 2C:14-1(h) (2011).

In State v. Olivio, 123 N.J. 550, 564 (1991), the Court

explained there were "significant policy considerations

commend[ing] a narrow interpretation of the concept of mentally

defective under N.J.S.A. 2C:14-1(h)," and formulated a "standard

defining 'mentally defective' for purposes of explaining and

applying N.J.S.A. [2C:14-2(a)(7)]."5 The court held that "a person

4

As noted in footnote 4, supra, N.J.S.A. 2C:14-1(h) was

subsequently deleted and N.J.S.A. 2C:14-2(a)(7) was amended. L.

2011, c. 232. We address only the statutory provisions extant at

the time of the January 31, 2011 incident.

5

In 1985, when the offense charged in Olivio was allegedly

committed, sexual penetration of a "mentally defective" victim

31 A-1137-15T1

is mentally defective under N.J.S.A. [2C:14-2(a)(7)] if, at the

time of the sexual activity, the mental defect rendered him or her

unable to comprehend the distinctively sexual nature of the

conduct, or incapable of understanding or exercising the right to

refuse to engage in such conduct with another." Ibid. (emphasis

added). "[I]n evaluating the evidence of [the victim's] mental

condition," the "test of 'mentally defective'" has three

components: "knowledge that conduct is sexual, an understanding

that one has the right to refuse to engage in sex, and the ability

to assert that right." Id. at 566-67.

M.C. argues he was entitled to dismissal of the N.J.S.A.

2C:14-2(a)(7) (2011) aggravated sexual assault charge because the

prosecutor stated during a pretrial proceeding that S.S.

consensually engaged in sexual relations on occasions prior to the

January 31, 2011 incident, and S.S. testified at trial she said

"no" during the alleged assaults. M.C. also relies on

Schlesinger's testimony S.S. understood the basic mechanics of

constituted a sexual assault under N.J.S.A. 2C:14-2(c)(2).

Olivio, 123 N.J. at 555-56; L. 1983, c. 249. In 1997, the "offense

was upgraded from sexual assault where it had been denominated as

[N.J.S.A.] 2C:14-2(c)(2) to an aggravated sexual assault[,]

[N.J.S.A.] 2C:14-2(a)(7)[,] by L. 1997, c. 194." Cannel, New

Jersey Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:14-2 (2018).

The "mentally defective" element of the offense, however, remained

the same. Compare N.J.S.A. 2C:14-2(c)(2) (1985), with N.J.S.A.

2C:14-2(a)(7) (2011).

32 A-1137-15T1

sex, people could not force her to have sex, and there are

circumstances under which she could have consensual sex.

M.C. contends the evidence showed S.S. was not "mentally

defective" under N.J.S.A. 2C:14-2(a)(7) (2011), as that term was

interpreted by the Court in Olivio, because S.S. was aware of the

sexual nature of the conduct, understood her right to refuse

consent and asserted that right, and previously consented to sexual

intercourse. He argues the court erred by rejecting his contention

and interpreting N.J.S.A. 2C:14-2(a)(7) (2011) to permit

consideration of the circumstances of the offense in the

determination of whether S.S. was mentally defective under the

statute. We disagree.

When viewed in its entirety, and giving the State the benefit

of all reasonable inferences, there was sufficient evidence

permitting a jury to properly find defendant guilty of aggravated

sexual assault under N.J.S.A. 2C:14-2(a)(7) (2011). See State v.

D.A., 191 N.J. 158, 163 (2007) (defining the standard for motions

for judgment of acquittal). Contrary to M.C.'s assertion, there

was evidence showing S.S. was mentally defective under the statute.

Schlesinger testified S.S.'s "[m]ental retardation is so

significant, [and] so pervasive it affects every aspect of [her]

functioning[,]" and renders her "dependent on other people,"

"emotionally weak," and "unable to stand up for herself and resist

33 A-1137-15T1

almost anything." He opined that when M.C. and E.W. engaged in

sexual activity with S.S., "[a]ny ability [S.S.] had to think or

reason – any minimal ability that she may have had just completely

shut down," resulting in an inability to assert her right to resist

M.C. and E.W.'s actions.

In sum, Schlesinger opined that "at the time" of the sexual

activity, S.S.'s "mental retardation" rendered her "incapable of

understanding or exercising the right to refuse to engage in such

conduct with another." Olivio, 123 N.J. at 564. Although there

was evidence showing S.S. understood the sexual nature of the

conduct and her right to refuse to engage in the conduct, M.C.

argued at trial that S.S. consented to the sexual activity.

Schlesinger's testimony, however, established S.S. was mentally

defective because it showed that at the time of the sexual activity

she was "incapable of . . . exercising that right [to consent],

that is, whether [she] had the capacity to consent." State v.

Cuni, 159 N.J. 584, 595-96 (1999) (internal citation omitted).

The court did not err by denying M.C.'s motion for acquittal.

The court also did not err by adding to the model jury

instruction on N.J.S.A. 2C:14-2(a)(7), Model Jury Charges

(Criminal), "Aggravated Sexual Assault (Mentally Incapacitated)

(N.J.S.A. 2C:14-2(a)(7)) (Offenses arising before March 17, 2012)"

34 A-1137-15T1

(rev. Feb. 6, 2012), that in its determination of whether S.S.

suffered from a mental defect,

[t]he critical issue is [S.S.'s] capacity to

consent in the sense that if she was unwilling

to engage in the sexual acts at issue in this

case, she had the mental and emotional ability

to refuse. The inquiry, therefore, centers

on [S.S.'s] mental condition and state of mind

that would reflect that incapacity taking into

consideration the facts as you find them to

be when the sexual conduct occurred.

A jury must be properly instructed to ensure that a defendant

receives a fair trial. State v. McKinney, 223 N.J. 475, 495 (2015)

(citing State v. Afanador, 151 N.J. 41, 54 (1997)). A trial court

must deliver "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." Ibid. (quoting State v.

Green, 86 N.J. 281, 287-88 (1981)).

M.C. objected to the jury charge and, therefore, we apply the

harmless error standard of review. State v. Baum, 224 N.J. 147,

159 (2016); see also R. 2:10-2. Under that standard, defendant

must demonstrate "some degree of possibility that [the error] led

to an unjust result. The possibility must be real, one sufficient

enough to raise a reasonable doubt as to whether [it] led the jury

to a verdict it otherwise might not have reached." Baum, 224 N.J.

at 159 (alteration in original) (quoting State v. Lazo, 209 N.J.

9, 26 (2012)).

35 A-1137-15T1

When a challenge to a jury charge is raised on appeal, the

charge must be read as a whole; we will not read just the portion

alleged as error. State v. Delibero, 149 N.J. 90, 106 (1997).

"[P]ortions of a charge alleged to be erroneous cannot be dealt

with in isolation but the charge should be examined as a whole to

determine its overall effect." State v. Gartland, 149 N.J. 456,

473 (1997) (alteration in original). We are required to consider

"in the context of the entire case, whether the error was clearly

capable of affecting the verdict or the sentence." State v. Bey,

129 N.J. 557, 624-25 (1992) (citation omitted).

The jury charge ought to serve as a "road map to guide the

jury," State v. Martin, 119 N.J. 2, 15 (1990), and provide a

precise, "comprehensible explanation of the questions that [it]

must determine, including the law of the case applicable to the

facts that [it] may find[,]" Green, 86 N.J. at 287-88. However,

not every inaccuracy in jury charges warrants reversal. State v.

Jordan, 147 N.J. 409, 422 (1997). Reversal should occur only

where the error, considered in the context of the charge as a

whole, "prejudicially affect[s] the substantial rights of the

defendant sufficiently grievous[ly] to justify notice by the

reviewing court and to convince the court that of itself the error

possessed a clear capacity to bring about an unjust result." Ibid.

(quoting State v. Hock, 54 N.J. 526, 538 (1969)). These principles

36 A-1137-15T1

arise from well-settled jurisprudence that a defendant is entitled

to a fair trial, not a perfect one. See State v. Boiardo, 111

N.J. Super. 219, 233 (App. Div. 1970).

Applying these standards, we find no error in the court's

instruction. The court defined the term mental defect in its

recitation of the model jury charge, and the language the court

added is in accordance with the Court's interpretation of the

"mentally defective" element of a first-degree aggravated sexual

assault under N.J.S.A. 2C:14-2(a)(7). Olivio, 123 N.J. at 553.

A victim is mentally defective "if, at the time of the sexual

activity, he or she is unable to comprehend the distinctively

sexual nature of the conduct or is incapable of understanding or

exercising the right to refuse to engage in such conduct with

another." Ibid. The Court further observed that a mental defect

is determined "in the context of the evidence that relates to the

complainant's mental condition and conduct[,]" and directed that

"[t]he trial court's instructions should inform the jury that the

alleged victim's capacity to understand and consent to the

proffered sexual conduct must be considered in the context of all

of the surrounding circumstances in which it occurred." Id. at

568. That is precisely what the trial court did here.

37 A-1137-15T1

C.

During a pretrial hearing, defendants moved to bar the State

from claiming the anal tear Kaiser discovered during her

examination of S.S. showed S.S. was the victim of nonconsensual

anal sex. Defendants asserted that, in the absence of expert

testimony, there was no support in the evidence for such a claim.

The court reserved decision on the request, but did not later

directly address the issue or rule on the request.

However, during his summation the prosecutor referred to the

evidence showing the anal tear and said the State "submits that

[it] shows force and . . . backs up what [S.S.] is saying." The

court overruled M.C.'s counsel's objection to the statement.

M.C. argues the prosecutor's argument was improper because

there was no expert testimony supporting the assertion the anal

tear was caused by nonconsensual anal sex, and the comment was not

otherwise supported by the evidence. He claims the argument

deprived him of a fair trial and requires a reversal of his

convictions.

"Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to the

scope of the evidence presented." State v. Cordero, 438 N.J.

Super. 472, 489-90 (App. Div. 2014) (quoting State v. Frost, 158

N.J. 76, 82 (1999)). "[I]n the prosecutor's effort to see that

38 A-1137-15T1

justice is done, the prosecutor 'should not make inaccurate legal

or factual assertions during a trial.'" State v. Bradshaw, 195

N.J. 493, 510 (2008) (quoting Frost, 158 N.J. at 85). "Rather, a

prosecutor should 'confine [his or her] comments to evidence

revealed during the trial and reasonable inferences to be drawn

from that evidence.'" Ibid. (alteration in original) (quoting

State v. Smith, 167 N.J. 158, 178 (2001)). A prosecutor may make

arguments "based on the facts of the case and reasonable inferences

therefrom[.]" Smith, 167 N.J. at 178.

M.C. argues the prosecutor's comments were improper because

in State v. Jones, 308 N.J. Super. 174, 183-84 (App. Div. 1998),

we rejected a defendant's attempt to argue, in summation, that the

absence of a broken hyoid bone in the victim's neck proved

defendant's conduct was reckless rather than purposeful. Ibid.

We affirmed the trial court's ruling barring the defendant's

argument because there was no evidence concerning the hyoid bone

and, therefore, any reference to it by defense counsel "exceeded

the 'four corners' of the evidence." Id. at 185.

We further observed that the trial court barred the

defendant's argument because it was premised on an inference that

the absence of a broken hyoid bone showed "great pressure was not

exerted" and, therefore, "there was a less degree of force applied

than that which is purposeful or knowing." Id. at 184. We

39 A-1137-15T1

determined defendant's argument "dealt with [a matter] 'so

esoteric that jurors of common judgment and experience cannot'

otherwise form a valid judgment as to the fact in issue without

expert testimony." Id. at 185 (quoting Butler v. Acme Markets,

Inc., 89 N.J. 270, 283 (1982)).

Here, unlike in Jones, there was evidence directly supporting

the prosecutor's argument. Kaiser described "a tear approximately

a quarter of an inch wide" and S.S. testified she was forcibly,

anally sexually assaulted multiple times by two different men

during the evening of January 31, 2011, and suffered anal pain

following the assaults.

The prosecutor's argument, however, was not limited to the

presence of the anal tear. Instead, he "submit[ted]" the tear

provided confirmation that force was used, thereby requiring

rejection of any conclusion, and defendant's contention, the anal

intercourse was consensual. We are convinced that whether an anal

tear demonstrates the use of force or otherwise is simply the

byproduct of consensual anal sex is an issue that is sufficiently

esoteric as to be beyond the common judgment and experience of

jurors. See ibid.; see generally State v. Hyman, 451 N.J. Super.

429, 443 (App. Div. 2017) (quoting State v. Kelly, 97 N.J. 178,

208 (1984) (finding expert opinion testimony is required on subject

matters "beyond the ken of the average juror")), certif. denied,

40 A-1137-15T1

232 N.J. 301 (2018). The court, therefore, erred by overruling

M.C.'s objection to the prosecutor's argument. The argument was

not supported by the evidence.

Nonetheless, an "isolated comment[]" in summation, even if

improper, does not constitute reversible error unless it

"substantially prejudice[s] defendant's right to a fair trial."

State v. Darrian, 255 N.J. Super. 435, 454 (App. Div. 1992).

Remarks during a prosecutor's summation must be considered in

context of the entire trial. State v. Engel, 249 N.J. Super. 336,

382 (App. Div. 1991). That includes consideration of whether the

remarks "were a measured response to defendant's summation made

in an attempt to 'right the scale.'" State v. Murray, 338 N.J.

Super. 80, 88 (App. Div. 2001) (quoting Engel, 249 N.J. Super. at

379).

"Whether particular prosecutorial efforts can be tolerated

as vigorous advocacy or must be condemned as misconduct is often

a difficult determination to make. In every instance, the

performance must be evaluated in the context of the entire trial,

the issues presented, and the general approaches employed." State

v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify

reversal, the prosecutor's conduct must have been clearly and

unmistakably improper, and must have substantially prejudiced

[the] defendant's fundamental right to have a jury fairly evaluate

41 A-1137-15T1

the merits of his [or her] defense." State v. Nelson, 173 N.J.

417, 460 (2002) (alterations in original) (quoting State v.

Papasavvas, 163 N.J. 565, 625 (2000)).

We discern no basis to reverse M.C.'s conviction based on the

prosecutor's fleeting assertion the anal tear demonstrated S.S.

was forcibly anally sexually assaulted. There was other evidence

showing S.S. was forcibly sexually assaulted, including her

testimony that as she endured more than an hour of anal penetration

by the two defendants during which she repeatedly said "no" and

requested that they stop. Moreover, the prosecutor did not

misstate the evidence – there is no dispute S.S. had an anal tear

- but instead only made argument, stating he "submit[ted]" the

tear showed the use of force. The jury was properly instructed

the prosecutor's arguments did not constitute evidence and that

it was required to decide the case based solely on the evidence,

and law provided in the court's instructions. Again, we presume

the jury followed the court's instructions, Martini, 187 N.J. at

477, and, when considered in the context of the entire trial,

discern no basis to conclude the prosecutor's argument

substantially prejudiced M.C.'s right to a fair trial, Nelson, 173

N.J. at 460.

42 A-1137-15T1

D.

M.C. further contends the court erred by allowing Schlesinger

to testify concerning whether S.S. had the capacity to consent to

sexual activity under the circumstances presented because the

issue was within the ken of jurors. He also argues Schlesinger

was erroneously permitted to testify concerning the credibility

of other trial witnesses.

We review a trial court's decision to admit or exclude expert

testimony for an abuse of discretion, State v. Torres, 183 N.J.

554, 567 (2005), and will disturb a court's evidentiary decisions

only when it commits "a clear error of judgment[,]" State v.

Marrero, 148 N.J. 469, 483 (1997) (citation omitted).

N.J.R.E. 702 permits a witness who possesses "knowledge,

skill, experience, training, or education" to offer expert opinion

testimony where specialized knowledge will assist the jury "to

understand the evidence or to determine a fact in issue."

Testimony in the form of an expert opinion that is otherwise

admissible is not objectionable even if it embraces an ultimate

issue to be decided by the jury. N.J.R.E. 704. Experts are not

permitted to offer an opinion on a defendant's guilt or innocence,

and they should not use the statutory language defining the charged

offenses, in order to avoid offering legal conclusions. State v.

Odom, 116 N.J. 65, 77, 80 (1989).

43 A-1137-15T1

N.J.R.E. 702 includes three requirements for the admission

of expert testimony, which are interpreted liberally because of

N.J.R.E. 702's inclination in favor of the admissibility of expert

testimony. See State v. Rosales, 202 N.J. 549, 562 (2010). To

be admissible

(1) the intended testimony must concern a

subject matter that is beyond the ken of the

average juror; (2) the field testified to must

be at a state of the art such that an expert's

testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise

to offer the intended testimony.

[State v. Jenewicz, 193 N.J. 440, 454 (2008).]

Schlesinger, the State's expert in forensic psychology,

properly testified concerning S.S.'s mental capacity under the

circumstances presented on January 31, 2011. S.S. suffered from

severe "[m]ental retardation," and the effect of the mental defect

on her ability to "comprehend the distinctively sexual nature of

the [sexual] conduct," and "understand[] or exercis[e] the right

to refuse to engage in such conduct with another" at the time of

sexual activity was a proper subject for expert testimony. See

Olivio, 123 N.J. at 564. The effect S.S.'s mental defect had on

her ability to consent was clearly beyond the understanding of

persons of "ordinary experience, education and knowledge[,]" Odom,

116 N.J. at 71, and was a subject "so esoteric that jurors of

common judgment and experience [could not] form a valid judgment"

44 A-1137-15T1

in the absence of expert testimony, Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 407 (2014) (quoting Butler, 89 N.J. at 283);

see, e.g., Olivio, 123 N.J. 553-56 (summarizing expert testimony

concerning a sexual assault victim's mental defect). The court

did not abuse its discretion by permitting Schlesinger to testify

concerning S.S.'s mental defect and its effect on her ability to

consent to the disputed sexual activity.

We further reject M.C.'s argument that the court erred by

permitting Schlesinger to respond to the prosecutor's question

as to how S.S.'s mental defect "impact[ed] her ability to say no

in a situation where hypothetically . . . she is in a basement, a

dark basement, with two people who are attempting to orally and

anally penetrate her?" M.C. argues Schlesinger's response to the

question, that S.S.'s mental defect rendered her "totally unable

to exercise any of her rights not to consent" and "helpless" is

barred by the Court's holding in Cain that an expert in a drug

case may not offer an opinion in response to a hypothetical

question concerning a defendant's intent because "an expert is no

better qualified than a juror to determine the defendant's state

of mind after the expert has given testimony on the peculiar

characteristics of drug distribution that are beyond the juror's

common understanding." 224 N.J. at 427. The Court determined

that "such ultimate-issue testimony may be viewed as an expert's

45 A-1137-15T1

quasi-pronouncement of guilt" in drug cases and usurp the jury's

factfinding function. Ibid.

Unlike the issue of the defendant's intent to distribute

drugs in Cain, the effect of S.S.'s mental defect on her ability

to consent to sexual activity under the circumstances presented

was an issue well beyond the ken of the average juror. It cannot

be said, as it was in Cain, that the expert "is no[t] better

qualified than a juror to determine" the effect of S.S.'s mental

defect. See ibid. Nor can it be said Schlesinger offered an

opinion on M.C.'s guilt or usurped the jury's factfinding role.

To the contrary, he offered proper expert opinion on a subject

about which the average juror could reasonably be expected to know

little - the effect of S.S.'s mental defect on her abilities

relevant under the Olivio standard. See Olivio, 123 N.J. at 564.

M.C. last argues he is entitled to a reversal of his

convictions because during questioning by E.W.'s counsel,

Schlesinger said B.S. and L.L. "seemed very credible to [him] and

they were corroborated[,]" and characterized as "preposterous"

V.B.'s testimony that S.S. did not protest during the alleged

sexual assaults. M.C. did not object to E.W.'s counsel's questions

or Schlesinger's responses. We therefore review his argument

under the plain error standard. R. 2:10-2; Daniels, 182 N.J. at

95.

46 A-1137-15T1

"The inclusion of testimony directed to the credibility of

other witnesses is not permitted." State v. Terrell, 452 N.J.

Super. 226, 250 (App. Div. 2016). It is the jury's role to

determine witness credibility, State v. Vandeweaghe, 177 N.J. 229,

239 (2003), and an expert may not "be used to bolster a fact

witness's 'testimony about straightforward, but disputed facts,'"

Cain, 224 N.J. at 426-27 (quoting State v. McLean, 205 N.J. 438,

455 (2011)); see also State v. Henderson, 208 N.J. 208, 297 (2011).

It was error to permit Schlesinger to opine on the credibility

of B.S., L.L. and a portion of V.B.'s version of the events. We

do not, however, find plain error because the testimony was

fleeting, and M.C.'s failure to object suggests he did not view

the testimony as prejudicial. See State v. Krivacska, 341 N.J.

Super. 1, 42-43 (App. Div. 2001) (concluding a trial court's

failure to provide a limiting instruction was not plain error in

part because the defendant's "failure to object signifie[d] that

the error belatedly claimed was actually of no moment"). Moreover,

B.S., L.L. and V.B. testified at trial, and the court instructed

the jury on numerous occasions it had the exclusive responsibility

to determine witness credibility. In addition, the court

interrupted the prosecutor's redirect examination of Schlesinger,

and directly instructed the jury that it was their duty, and not

Schlesinger's, to make credibility determinations.

47 A-1137-15T1

Schlesinger does not have not firsthand

knowledge of the evidence of what happened in

this case. He's reviewed witness statements.

He's reviewed other evidence in the case.

There's been questioning on both sides of what

he has taken into account and about

credibility determinations that he's made.

It's your job, not his, ultimately to make

credibility determinations, to make

determinations of what you believe based on

the evidence you've heard what the facts are

from the testimony and from the admissible

evidence in the case. That's your job and

based on the credibility decisions that you

make and based on the facts that you determine

about whether this testimony and these

opinions are valid or not . . . .

We assume the jury followed the court's frequent and comprehensive

instructions, State v. Loftin, 146 N.J. 295, 390 (1996), and do

not find admission of the testimony "raise[s] a reasonable doubt

as to whether [it] led the jury to a result it otherwise might not

have reached[,]" State v. Prall, 231 N.J. 567, 581 (2018) (second

alteration in original) (quoting Daniels, 182 N.J. at 95).

IV.

E.W. and M.C. make the same arguments challenging the court's

imposition of sentence. At their separate sentencing proceedings,

the court found multiple aggravating factors under N.J.S.A. 2C:44-

1(a) supporting its imposition of defendants' sentences.

Defendants, however, challenge only the court's finding of

aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and

seriousness of the harm inflicted on the victim, including whether

48 A-1137-15T1

the defendant know or reasonably should have known the victim "was

. . . substantially incapable of exercising normal physical or

mental power of resistance[,]" and aggravating factor twelve,

N.J.S.A. 2C:44-1(a)(12), the offense was committed against a

person the defendant knew or should have known was disabled.

Defendants also claim their sentences were excessive.6

Defendants contend the court based its finding of aggravating

factors two and twelve on S.S.'s mental disability and, therefore

the court engaged in impermissible double-counting. We agree.

We review a "trial court's 'sentencing determination under a

deferential [abuse of discretion] standard of review.'" State v.

Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214

N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155,

169-70 (2006) ("On appellate review, the court will apply an abuse

of discretion standard to the sentencing court's explanation for

its sentencing decision within the entire range."). We affirm a

sentence if: (1) the trial court followed the sentencing

6

M.C. also argues the court erred by failing to find mitigating

factors two, N.J.S.A. 2C:44-1(b)(2), the defendant did not

contemplate causing serious harm, four, N.J.S.A. 2C:44-1(b)(4),

there were substantial grounds excusing or justifying the

defendant's conduct, and five, N.J.S.A. 2C:44-1(b)(5), the victim

induced or facilitated the defendant's commission of the crimes.

M.C. correctly notes the court did not make specific findings

supporting its rejection of the mitigating factors, but our

independent review of the record reveals no competent evidence or

information supporting a finding of those factors.

49 A-1137-15T1

guidelines; (2) its findings of fact and application of aggravating

and mitigating factors were based on competent, credible evidence

in the record; and (3) the application of the law to the facts

does not "shock[] the judicial conscience." State v. Bolvito, 217

N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)). When reviewing a trial court's sentencing decision, we

will not "substitute [our] judgment for that of the sentencing

court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citation

omitted).

A court engages in impermissible double-counting when

"elements of a crime for which a defendant is being sentenced" are

"considered as aggravating circumstances in determining that

sentence." State v. Kromphold, 162 N.J. 345, 353 (2000) (citing

State v. Yarbough, 100 N.J. 627, 633 (1985)). A court may not

"double count" a fact that established an element of the offense

as a basis to support an aggravating or mitigating factor.

Fuentes, 217 N.J. at 74-75; Kromphold, 162 N.J. at 353; Yarbough,

100 N.J. at 633.

"[A] sentencing court must scrupulously avoid 'double-

counting' facts that establish the elements of the relevant

offense." Fuentes, 217 N.J. at 74-75 (citing Yarbough, 100 N.J.

at 645). A court, however, does not engage in double-counting

when it considers facts showing defendant did more than the minimum

50 A-1137-15T1

the State is required to prove to establish the elements of an

offense. Id. at 75; see State v. Mara, 253 N.J. Super. 204, 214

(App. Div. 1992) ("The extent of the injuries, which exceed the

statutory minimum for the offense, may be considered as

aggravating.").

Here, the court cited S.S.'s mental disability, and relied

upon it as a basis for finding aggravating factors two and twelve

in imposing defendants' respective sentences. The court's

reliance on S.S.'s disability, however, constituted impermissible

double-counting supporting the sentences imposed on defendants'

convictions for first-degree aggravated sexual assault under

N.J.S.A. 2C:14-2(a). An element of the offense was that the victim

"was mentally defective, or mentally incapacitated." See N.J.S.A.

2C:14-2(a) (2011). Thus, the court erred by counting a fact –

S.S.'s mental disability – that established an element of the

offense to support its finding of aggravating factors two and

twelve. See Fuentes, 217 N.J. at 74-75; Kromphold, 162 N.J. at

353; Yarbough, 100 N.J. at 633. The court's finding of aggravating

factors two and twelve did not constitute improper double-counting

in its sentencing on the other charges for which defendants were

convicted because S.S.'s mental defect or incapacity is not an

element of any of those offenses.

51 A-1137-15T1

We therefore are constrained to vacate defendants' respective

sentences on the first-degree aggravated sexual assault charges

under N.J.S.A. 2C:14-2(a)(7), and remand for resentencing on those

charges only.7 See Fuentes, 217 N.J. at 70 (finding "[a]n

appellate court may . . . remand for resentencing if the trial

court considers an aggravating factor that is inappropriate to a

particular defendant or to the offense at issue."). We do not

offer an opinion as to whether the record otherwise supports a

finding of the aggravating factors based on information and

evidence other than S.S.'s mental defect or incapacity, and leave

that determination to the court on remand.

Defendants' argument that the sentences imposed on the

other charges were excessive is without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We

note only that, in imposing defendants' sentences on each of the

other charges, the court did not violate the sentencing

guidelines, fail to base its finding of aggravating and

mitigating factors on competent and credible evidence or impose

7

E.W. was convicted and sentenced for first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(7), under count four of the

indictment. M.C. was convicted and sentenced for the offense

under count five. The court's finding of aggravating factors two

and twelve did not constitute improper double-counting in its

sentencing on the other charges for which defendants were

convicted, because S.S.'s mental defect or incapacity is not an

element of any of those charges.

52 A-1137-15T1

sentences that shock our judicial conscience. See Fuentes, 217

N.J. at 70; Bolvito, 217 N.J. at 228.

In A-1148-15, we affirm E.W.'s convictions on all counts,

affirm the sentences on counts one and two, vacate the sentence

on count four and remand for resentencing on count four. We do

not retain jurisdiction.

In A-1137-15, we affirm M.C.'s convictions on all counts,

affirm his sentence on count three, vacate the sentence on count

five and remand for resentencing on count five. We do not retain

jurisdiction.

53 A-1137-15T1