STATE OF NEW JERSEY VS. R.J.M. (11-08-0763, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0359-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.M.,

Defendant-Appellant.

______________________________

Argued June 5, 2018 - Decided July 31, 2018

Before Judges Fisher, Sumners, and Natali.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Indictment

No. 11-08-0763.

Daniel S. Rockoff, Assistant Deputy Public

Defender, argued the cause for appellant

(Joseph E. Krakora, Public Defender, attorney;

Daniel S. Rockoff, of counsel and on the

briefs).

Douglas B. Pagenkopf, Assistant Prosecutor,

argued the cause for respondent (Charles A.

Fiore, Gloucester County Prosecutor,

attorney; Douglas B. Pagenkopf, on the brief).

PER CURIAM

An indictment charged defendant R.J.M. with three offenses:

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

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

(count two); and endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (count three). A jury acquitted defendant on count two

but was unable to reach a verdict on counts one and three. The

State retried defendant and a second jury convicted him on those

counts. The trial court sentenced defendant to a sixteen-year

prison term for count one, subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and a four-year concurrent prison term for

count three. Defendant was also sentenced to five years mandatory

parole supervision and parole supervision for life. Defendant

appeals his conviction, sentence, and various pre-trial and trial

rulings. He argues:

POINT I

BECAUSE A POLICE INTERROGATOR IGNORED

[DEFENDANT]'S UNAMBIGUOUS REQUEST FOR

COUNSEL, THIS COURT MUST REVERSE THE DENIAL

OF THE MOTION TO SUPPRESS [DEFENDANT]'S

STATEMENT. U.S. Const., AMENDS. V, XIV.

POINT II

THIS COURT MUST ALSO REVERSE THE DENIAL OF

THE MOTION TO SUPPRESS [DEFENDANT]'S STATEMENT

FOR REASONS RELATED TO INTERROGATORS'

CONFRONTATION OF [DEFENDANT] WITH A POLYGRAPH.

U.S. Const., AMENDS. V, XIV.

2 A-0359-15T3

A. [Defendant] did not

intelligently waive his right to

silence before he took the

polygraph.

B. Interrogators coerced unreliable

responses from [Defendant] only by

confronting him with a fabrication

of scientifically-certain proof of

guilt, whereupon [Defendant] tried

to reconcile his own inconsistent

memory with that pseudoscientific

fabrication.

C. The trial court's so-called

"cure" - admitting [Defendant]'s

statement while hiding from the jury

how interrogators used a polygraph

to elicit the statement - was

totally inadequate, as it left

[Defendant] with an unacceptably

prejudicial dilemma.

POINT III

THE COURT ERRED BY DENYING [DEFENDANT]'S

REQUEST FOR A SECOND-DEGREE N.J.S.A. 2C:14-2B

CHARGE AS A LESSER ALTERNATIVE TO THE FIRST-

DEGREE N.J.S.A. 2C:14-2A(l) CHARGE. U.S.

Const., AMENDS. V, XIV; N.J. Const., ART. I,

¶¶ 1, 9, 10.

POINT IV

THE CUMULATIVE PREJUDICE OF REPETITIOUS OUT-

OF-COURT HEARSAY ADMITTED PURSUANT TO

N.J.R.E. 803(C)(27) AND N.J.R.E. 803(C)(4)

OVER THE DEFENDANT'S OBJECTIONS DENIED

DEFENDANT A FAIR TRIAL. U.S. Const., AMENDS.

V, XIV; N.J. Const., ART. I, ¶¶ 1, 9, 10.

POINT V

AFTER THE FIRST JURY'S VERDICT, THE DOCTRINE

OF COLLATERAL ESTOPPEL, ALSO KNOWN AS ISSUE

PRECLUSION, BARRED THE STATE FROM RE-ARGUING

3 A-0359-15T3

AT THE SECOND TRIAL THAT [DEFENDANT] ACTED

PURPOSELY. THE STATE'S UNFAIR REPETITION OF

THIS CLAIM, WHICH THE STATE HAD ALREADY

LITIGATED AND LOST AGAINST [DEFENDANT] AT THE

FIRST TRIAL, UNFAIRLY DILUTED [DEFENDANT]'S

DEFENSE THAT ANY IMPROPER CONTACT HAD BEEN AN

ACCIDENT. U.S. CONST., AMENDS. V, XIV; N.J.

Const., ART. I, ¶¶ 1, 9, 10.

POINT VI

THIS MATTER SHOULD BE REMANDED FOR

RESENTENCING, BECAUSE THE COURT FOUND

IMPROPER AGGRAVATING FACTORS, AND FAILED TO

FIND RELEVANT MITIGATING FACTORS.

After a thorough review of the record, we conclude that

defendant did not invoke his right to counsel and, thus, his

subsequent inculpatory statements were appropriately admitted by

the trial court. We also disagree with defendant's claims that

he did not intelligently and voluntarily waive his Miranda1 rights

and we find no error in the trial court's redaction of the recorded

interrogation. We conclude, however, that the trial court erred

in refusing to charge the jury on the lesser-included offense of

second-degree sexual assault. We find no error with the trial

court's evidentiary rulings with certain exceptions to be

addressed on remand, and no merit to the State's collateral

estoppel argument. Accordingly, we affirm in part, reverse in

part and remand.

1

Miranda v. Arizona, 384 U.S. 436 (1966).

4 A-0359-15T3

I.

Defendant's wife ran a daycare center out of her home that

J.C., the victim, began attending when he was a one-year-old child.

Approximately three years later, defendant took a disability leave

from his job and was at home more frequently during the day.

Defendant's wife claimed that despite his increased presence in

the home, defendant had no involvement with the daycare center's

business but acknowledged that he interacted with J.C.

occasionally such as tickling him and blowing "raspberries" on his

stomach.

When J.C. was four, he told his father that "[defendant] bit

my peepee and it hurt," a statement he repeated to his mother.

The next day, J.C.'s parents took him to the police station where

a detective conducted a recorded interview. Although J.C. did not

repeat the allegations to the detective, when the detective left

the room J.C. repeated the statement to his mother while the camera

was still active. J.C. also repeated the allegation to a child

abuse pediatrician who performed a physical examination. At both

the first and second trials, J.C. testified that defendant touched

him with his hands, not his mouth.

When defendant was questioned at the police station the next

day, he was read his Miranda rights and repeatedly proclaimed his

innocence during the five-hour interrogation. During the first

5 A-0359-15T3

portion of his interrogation, the detectives asked defendant about

taking a polygraph exam and he indicated that although "nervous"

he "should do well" on it. After agreeing to the polygraph exam,

defendant spoke to a different interrogator from the State Police

polygraph unit. According to the trial court, after it reviewed

the videotaped interrogation, this discussion occurred as the

detective set up the polygraph equipment:

Detective: Okay . . . I can't just hook you

up and start asking you questions, I have to

do an interview beforehand, I have to get

basic information that you've probably already

given to the detectives, and I apologize if

it's redundant . . . [B]ut before we start

doing that, I have to . . . read you your

Miranda rights, I know they already [did] it

to you?

Defendant: Mmm-mmm.

Detective: Okay, I have to do that again, just

because my department requires it, and it's

also a polygraph consent form. You know

polygraph is voluntary?

Defendant: Mmm-mmm.

Detective: Okay, nobody can force you to take

it.

Defendant: Right.

Detective: Okay, so I'm gonna read this to you

and get this out of the way and then we'll go

from there, because I have to ask you

questions. . . .

Defendant: My one, one of my main concerns,

I, I'm wondering, I want to take [the

6 A-0359-15T3

polygraph exam] because, I, I, know I didn't

do anything. . . .

Detective: Uh-huh.

Defendant: But, I mean, I don't know if I have

to have a lawyer?

Detective: You wanna what?

Defendant: A lawyer.

Detective: That's up to you, I can't, I can't

give you any kind of advice regarding that, I

mean if you didn't do anything, if you did

nothing wrong, um, you take the polygraph

test, you clear your name from this case, and

you move on.

Defendant: Okay.

Detective: If you think you need a lawyer, if

you decide you want a lawyer, then. . . .

Defendant: What is that, I don't think I need

a lawyer . . . but . . . I mean. . . .

Detective: If you think you need a lawyer . .

. if you . . .

Defendant: I feel, I, I don't want to okay to

something that. . . .

Detective: If you want a lawyer, then that's

something that you'll have to tell me and then

I'm not allowed to talk to you.

Defendant: Well I'll take it, I, I have no

reason to uh, I mean, I have nothing to uh,

hide.

Defendant was read his Miranda rights again and signed a

polygraph consent form. After the exam was completed, the

detective advised defendant that he failed the test. Upon hearing

7 A-0359-15T3

the results, defendant made incriminating comments that his mouth

might have unintentionally touched J.C.'s penis when he was

tickling and wrestling and rolling around with him. Defendant

agreed to write an apology letter to J.C. and stated he was "very

sorry" and that he "never meant for that [oral contact] to happen."

After completing the letter, defendant was arrested.

In his first point, defendant argues that he made an

unequivocal request for counsel that the trial court erroneously

characterized as ambiguous. We disagree and conclude that rather

than invoking counsel, defendant merely sought advice from the

detective.

An accused must be advised of his right to remain silent and

to have a lawyer present, and if that right is asserted, it must

be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104

(1975). An accused that has expressed his desire to deal only

with police through counsel may not be further interrogated until

such counsel is present, "unless the accused himself initiates

further communication, exchanges, or conversations with the

police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). In New

Jersey, "an equivocal request for an attorney is to be interpreted

in a light most favorable to the defendant." State v. Chew, 150

N.J. 30, 63 (1997), overruled on other grounds, State v. Boretsky,

186 N.J. 271 (2006).

8 A-0359-15T3

When an accused makes an ambiguous statement that may be

construed as an assertion of his Miranda rights, the police are

permitted to ask follow up questions "designed to clarify the

meaning of those words." State v. Alston, 204 N.J. 614, 623

(2011). Put another way, if "'following an equivocal indication

of the desire to remain silent,' the police are reasonably unsure

whether the suspect was asserting that right, they 'may ask

questions designed to clarify whether the suspect intended to

invoke his right to remain silent.'" State v. Johnson, 120 N.J.

263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836,

841-42 (11th Cir. 1987)).

Under Miranda, such questioning aimed at clarification is

"not considered 'interrogation' . . . because it is not intended

to 'elicit an incriminating response from the suspect.'" Johnson,

120 N.J. at 283 (quoting Christopher, 824 F.2d at 842 n.16). "The

rule permits only clarification, not questions that 'operate to,

delay, confuse, or burden the suspect in his assertion of his

rights. Because such questions serve to keep the suspect talking,

not to uphold his right to remain silent, they constitute unlawful

"interrogation," not permissible clarification.'" Id. at 283-84

(quoting Christopher, 824 F.2d at 842).

Defendant's claim that he unambiguously requested an attorney

is belied by a review of the relevant exchange in its entirety,

9 A-0359-15T3

as opposed to a truncated version in which words and phrases are

improperly parsed. Only if we view the colloquy — "you wanna

what?",2 "a lawyer" — in complete isolation, and by consciously

2

We reviewed the same unredacted videotape considered by the

trial court. After our review, we have concluded that the relevant

colloquy between defendant and the detective represented in the

transcript submitted by the parties on appeal is incorrect. The

accurate colloquy reads:

Defendant: But, I mean, I don't know if I have

to have a lawyer?

Detective: You don't know what?

Defendant: A lawyer.

We acknowledge that the factual findings of a trial court in

support of the grant or denial of a motion to suppress "must be

upheld when 'those findings are supported by sufficient credible

evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017)

(quoting State v. Gamble, 218 N.J. 412, 424 (2014)). In S.S., the

Court "cautioned that a trial court's factual findings should not

be overturned merely because an appellate court disagrees with the

inferences drawn and the evidence accepted by the trial court or

because it would have reached a different conclusion." Ibid.

Rather, absent findings that are "so clearly mistaken that the

interests of justice demand intervention and correction," we

should not disturb the factual findings of a trial court. Ibid.

(quoting Gamble, 218 N.J. at 425).

Our independent review of the videotape does not alter our

determination that defendant's statement was not an invocation of

counsel, ambiguous or otherwise. In other words, whether the

exchange included the phrase "you wanna what?" as reflected in the

transcript or "you don't know what," defendant was not invoking

his right to counsel but was clearly asking for advice. Thus, the

trial court's incorrect factual finding on this point was not "so

clearly mistaken that the interest of justice demand intervention

and correction," Ibid. (quoting Gamble, 218 N.J. at 425), because

it nevertheless correctly characterized defendant as asking the

interrogating officer for "advice on whether he needed an

attorney."

10 A-0359-15T3

ignoring the previous statement, could one conclude the request

for counsel was unambiguous. His initial statement — "But, I

mean, I don't know if I have to have a lawyer?" — is presented as

a question and evidences an attempt to seek advice from the

detective on the necessity of counsel. The follow-up question and

answer was connected to defendant's request for legal advice.

The relevant colloquy is similar to the permissible

interrogation in Messino and Alston. In Messino, 378 N.J. Super.

at 573, during a cigarette break, the defendant asked, "Do you

think I need a lawyer?" The police officer advised defendant

"that it was his responsibility to tell defendant that he had a

right to have a lawyer, but 'that was his call.'" Not

surprisingly, we found that defendant "merely asked" the

interrogator if he needed a lawyer and that "[this] inquiry . . .

may be distinguished from other statements considered to be

requests for counsel." Id. at 578. We held the statement was not

a request for counsel, ambiguous or otherwise, but was a mere

request for advice.

In Alston, 204 N.J. at 618, the Court concluded defendant's

statements, "Should I not have a lawyer in here with me?" and "No,

I am asking you guys, man. I don't - I'm just - I see you guys,

man," were not unambiguous requests for counsel. The Alston Court

also concluded that the officer's immediate response — "That's on

11 A-0359-15T3

- that's on you. If you want a lawyer, then we - stop and you

going to get your lawyer. . . . If you want to stop at this time

then we stop at this time." — was both a "fair recitation" of

defendant's Miranda rights and "permissible clarification." Id.

at 617-618, 628.

Again, defendant's statement — "But, I mean, I don't know if

I have to have a lawyer?" — was posed as a mere question to the

detective in an attempt to seek advice. While we recognize that

an ambiguous request for counsel is "to be interpreted in a light

most favorable to the defendant," Chew, 150 N.J. at 63, when we

read the colloquy as a whole we cannot escape the conclusion that

defendant's statement was not an invocation of counsel, ambiguous

or otherwise. Further, the detective's immediate response —

"That's up to you, I can't, I can't give you any kind of advice

regarding that. . . ." — was an appropriate effort to explain to

defendant that the detective could not advise whether counsel was

necessary.

To the extent that defendant's statements may be viewed as

an ambiguous invocation of his right to counsel, we agree with the

trial court that the detective appropriately clarified defendant's

request and did not impermissibly "delay, confuse, or burden" him.

Johnson, 120 N.J. at 283. Without delay, the detective promptly

advised defendant that she could not give him advice and indicated

12 A-0359-15T3

that, if he was requesting a lawyer, he had to tell her. Simply,

the lack of burden placed upon defendant is highlighted by the

detective's sharp response that he had to tell her if he wanted

to invoke his rights and obtain counsel. Further, the entire

reason the detective was in the room with defendant was because

he had voluntarily agreed to take the polygraph exam. Therefore,

we conclude that during the relevant colloquy the detective did

not implant or force the idea of the exam onto defendant. Rather,

he had already expressed a willingness to take the exam and thus

under these circumstances the detective's comments did not try to

"delay, burden or confuse" his right to counsel.3

II.

Defendant argues in Point II that (1) he did not voluntarily

waive his right to take the polygraph, (2) the detectives coerced

unreliable responses, and (3) the trial court's redaction of

references to the polygraph in the recorded interrogation shown

to the jury was in error. We disagree.

3

We also observe that the detective's statement, "If you want a

lawyer, then that's something that you'll have to tell me and then

I'm not allowed to talk to you" is not a precise characterization

of the Miranda warnings. But, in light of defendant having been

previously Mirandized and clearly understanding and waiving his

rights, we conclude this comment did not in any way confuse him.

In this regard, we are mindful that "interrogating officers, when

engaged in communications with suspects, most often use language

that is also more like that of the suspect than the precise and

pristine elocutions of the . . . Oxford don." Alston, 204 N.J.

at 627.

13 A-0359-15T3

A valid waiver requires the State to show beyond a reasonable

doubt that the accused's waiver was "voluntary, knowing, and

intelligent." State v. Hubbard, 222 N.J. 249, 265-67 (2015)

(quoting State v. Hreha, 217 N.J. 368, 382 (2014)). An involuntary

confession may result from physical or psychological coercion;

however, "use of psychologically oriented interrogation techniques

is not inherently coercive." State v. Cook, 179 N.J. 533, 562

(2004). Whether the State has shown beyond a reasonable doubt

that a waiver was voluntary should be determined by assessing the

"totality of the circumstances" which "includ[es] both the

characteristics of the defendant and the nature of the

interrogation." State v. Galloway, 133 N.J. 631, 654 (1993).

Further, relevant factors in making this determination include

"the suspect's age, education and intelligence, advice concerning

constitutional rights, length of detention, whether the

questioning was repeated and prolonged in nature, and whether

physical punishment and mental exhaustion were involved." Ibid.

Courts should also consider "defendant's previous encounters with

law enforcement" and the period of time that has elapsed between

the administration of Miranda rights and the defendant's

confession. Hreha, 217 N.J. at 383.

First, defendant argues that he did not intelligently waive

his right to silence prior to the polygraph exam. His contention

14 A-0359-15T3

is based upon his conversation with the detective as she was

setting up the polygraph exam and after he waived his Miranda

rights where he asked, "If I don't take this test . . . what is

my next step, am I just automatically guilty?" The interrogator

responded "I don't know," and offered to get the detective working

on the case to come talk to defendant. Defendant declined but

continued asking what other options he had if he walked out of the

interrogation room, leading the interrogator to state that, if he

left the room, his name would not be cleared and that it would

make J.C.'s story "more believable." Defendant then decided to

take the polygraph.

Defendant relies on State v. Pillar, 359 N.J. Super. 249, 268

(App. Div. 2003), where we held that the defendant's Miranda waiver

was not valid because the officer's "acquiescence to hear an 'off-

the-record' statement" from the defendant, which the officer knows

cannot be "off-the-record," "totally undermines and eviscerates

the Miranda warnings." But, here, the detective responded to

defendant's inquiry that she did not know if he would be

automatically guilty because she was not the detective working on

the case. Thus, the detective did not make any affirmative

assertions that defendant would be guilty if he did not take the

polygraph exam and did not attempt to undermine defendant's Miranda

15 A-0359-15T3

warnings. Also, defendant understood that he did not have to take

the test when he stated "I want to know what options I have if

. . . I was to just walk out of here."

Second, defendant contends that the detective coerced

unreliable responses from him by "confronting him with a

fabrication[] [of] scientifically-certain proof of guilt." Our

Supreme Court has recognized the questionable reliability and

accuracy of polygraph tests. See State v. A.O., 198 N.J. 69, 83-

84 (2009); see also State v. Domicz, 188 N.J. 285, 313 (2006)

(recognizing that "serious questions about the reliability of

polygraph evidence remain"). Here, defendant takes issue with the

detective's statements that polygraphs are a "scientific

instrument" that is "97% accurate" and that his nervousness would

not impact the test.

We disagree with defendant's attempt to compare the present

matter to cases where the police fabricated tangible evidence to

elicit a confession. See State v. Chirokovskcic, 373 N.J. Super.

125, 129, 133-34 (App. Div. 2004) (upholding suppression of

confession on the basis of coercion because the police fabricated

a laboratory report to fictitiously indicate the defendant's DNA

was found at the crime scene); State v. Patton, 362 N.J. Super.

16, 18, 49 (App. Div. 2003) (holding the defendant was coerced

when the police fabricated an audio tape depicting a fake eye-

16 A-0359-15T3

witness to the crime). The detective here did not fabricate the

results of the polygraph test. Defendant simply failed the test

and the results were used to show that he was not being truthful

in the interrogation. See State v. R.T., 411 N.J. Super. 35, 45-

46 (App. Div. 2009) (finding that "the specific use of the voice

stress analyzer to point out to defendant that it appeared he was

not being entirely candid in his denial of the allegations, does

not rise to the level of trickery by resorting to fabricated

evidence of the type that we disapproved in [Patton, 362 N.J.

Super. at 31-49]").4

4

A survey of the case law outside of New Jersey supports the

actions of the police here. See Mastin v. Senkowski, 297 F. Supp.

2d 558, 603-04 (W.D.N.Y. 2003)(finding an officer's

misrepresentation that the polygraph machine was "95 percent

accurate" did not make the defendant's confession involuntary

because the law allows police to make false statements, the

defendant failed to establish the officer lied about the polygraph

results); People v. Mays, 174 Cal. App. 4th 156, 166 (Cal. Ct.

App. 2009)(disregarding defendant's belief that "polygraphs are

100 percent accurate" because "the belief was not induced by the

police"); Contee v. United States, 667 A.2d 103, 104 (D.C.

1995)(stating that, when using tests such as polygraphs, the

police's failure to "explain[] that the test results are not

conclusive" does not mean the confession is involuntary unless the

defendant shows the deception was "unfair to the extent that his

due process was denied"); State v. Stone, 303 P.3d 636, 645 (Idaho

Ct. App. 2013)(determining the detective's statement, after

defendant took the exam, that "polygraph examinations were one-

hundred percent accurate" did not make the defendant's statements

involuntary because the detective did not make legal

misrepresentations or threaten defendant with a greater crime for

lying to police); State v. Underhill, 346 P.3d 1214, 1217 (Or. Ct.

App. 2015)(finding the defendant's statements in the context of

the polygraph exam process were voluntary and not the product of

17 A-0359-15T3

Also, in assessing the voluntariness of defendant's

statement, the trial court considered the nature of the

investigation: defendant was informed "nobody could force him to

take" the polygraph; the door in the interrogation room was

unlocked and defendant was free to leave at any time; he was told

he was not under arrest; defendant was given multiple breaks,

allowed trips to the bathroom, and water to drink. The balance

of these factors establish that defendant was not subjected to

substantial psychological pressure during interrogation. See Cook,

179 N.J. at 563. Because defendant's free will was not overborne

based on a totality of the circumstances, his inculpatory

statements were correctly determined by the trial court to be

voluntary.

Finally, while defendant agrees with the polygraph's

inadmissibility, he argues that it was prejudicial for the jury

to be instructed to assess the reliability of his inculpatory

statements without knowledge of the detective's use of the failed

polygraph. However, because we find that defendant's statements

were voluntarily given, there was no coercive intervening event

that the jurors needed to be informed about and the trial court

did not err in excluding all references to the polygraph.

unlawful police conduct, despite the officer telling defendant the

polygraph was "97.3 percent accurate" prior to taking the test).

18 A-0359-15T3

III.

We agree, however, with defendant's contention in Point III

that the trial court should have charged the jury on the second-

degree sexual assault charge. The trial court's refusal — because

it would be "a violation of double jeopardy" — was contrary to

State v. Villar, 150 N.J. 503, 518 (1997) and State v. Short, 131

N.J. 47, 62-63 (1993), and warrants reversal.

"Appropriate and proper charges to a jury are essential for

a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Pursuant

to N.J.S.A. 2C:1-8(e), the court "shall not charge the jury with

respect to an included offense unless there is a rational basis

for a verdict convicting the defendant of the included offense."

Accordingly, when a defendant's request to instruct the jury on a

lesser-included offense is denied, "an appellate court reviews the

denial of that request, determining whether 'the evidence presents

a rational basis on which the jury could [1] acquit the defendant

of the greater charge and [2] convict the defendant of the

lesser.'" State v. Carrero, 229 N.J. 118, 128 (2017) (quoting

State v. Brent, 137 N.J. 107, 117 (1994)). If a rational basis

exists, "a trial court's failure to give the requested instruction

is reversible error." Ibid.

In Short, 131 N.J. at 63, the Court upheld a defendant's

right for a jury to consider a lesser-included offense despite the

19 A-0359-15T3

fact that the offense was barred by the applicable statute of

limitations. In that case, the trial court granted defendant's

request for a jury instruction on the lesser-included offense of

manslaughter but told the jury over defendant's objection that if

it found the defendant guilty of manslaughter, the defendant would

be acquitted as the statute of limitations had run on that offense.

Id. at 51. Defendant appealed after he was convicted of murder,

arguing that the instructions on the lesser-included offenses

should not have been accompanied by warnings that he would be

acquitted. Id. at 51.

The Court reversed our affirmance of the conviction and held

that the defendant was entitled "to have the jury instructed on

all lesser[-]included offenses supported by the record," without

warnings about the sentencing outcome and further held that a

defendant had a right "not to be convicted of a crime whose statute

of limitations had passed" and these rights were not "conditioned

on the relinquishment of the other." Id. at 52.

In Villar, 150 N.J. at 508, a jury found a defendant guilty

of second-degree aggravated assault but acquitted the defendant

on third-degree aggravated assault. We vacated the second-degree

aggravated assault conviction and held that there be no retrial

on the second-degree charge "because the jury acquitted defendant

on the third-degree charge . . . this lesser-included offense

20 A-0359-15T3

cannot be charged at retrial, thus hindering a fair retrial of the

greater offense." Id. at 517.

The Court reversed and ordered a retrial on the second-degree

charge. Id. at 518-19. Providing guidelines for the retrial, the

Court acknowledged the double jeopardy implications of its

decision:

We realize that, because of the constitutional

prohibition against double jeopardy,

defendant cannot be recharged with or

convicted of the third-degree aggravated

assault. However, at defendant's request, the

jury could be charged with that offense as a

lesser-included offense of second-degree

aggravated assault and should the jury return

a verdict of guilt on that count, defendant

would stand acquitted.

[Id. at 518.]

The State maintains that Villar is inapplicable because count

two is not a lesser-included offense to count one as the

culpability requirement for second-degree sexual assault charge

is higher than for first-degree aggravated sexual assault. It is

unnecessary to resolve this point because the State applies the

wrong legal standard.

When a defendant requests a charge on a lesser-included

offense, the inquiry focuses on rationality: "whether the lesser

offense is strictly 'included' in the greater offense, as defined

by N.J.S.A. 2C:1-8d, is less important to a trial court's

determination to charge the offense than whether the evidence

21 A-0359-15T3

presents a rational basis on which the jury could acquit the

defendant of the greater charge and convict the defendant of the

lesser." Brent, 137 N.J. at 117. A low threshold is set by the

rational-basis test. State v. Crisantos, 102 N.J. 265, 278 (1986).

"A defendant is entitled to a lesser-included offense instruction

rationally supported by the evidence, even if the instruction is

inconsistent with the defense theory." Carrero, 229 N.J. at 128.

"[O]ur Court has determined that failure to instruct the jury at

the defendant's request on a lesser charge for which the evidence

provides a rational basis warrants reversal of the defendant's

conviction." Brent, 137 N.J. at 118.5

Here, there was evidence in the record that provided a

rational basis for including the lesser-included charge. Indeed,

the police and J.C.'s parents testified that J.C. told them

defendant bit or put his penis in defendant's mouth. However at

trial, J.C. testified that defendant touched his penis with his

hand, not his mouth. This provided a rational basis for the jury

to have convicted defendant on the lesser sexual assault charge

if it did not believe defendant put J.C.'s penis in his mouth but

instead touched it with his hand. Compare N.J.S.A. 2C:14-2(a)(1)

5

Additionally, we note that we have previously characterized

second-degree sexual contact as a lesser offense than first-degree

aggravated sexual assault. See State v. Ramos, 226 N.J. Super.

339, 340 (App. Div. 1988); State v. J.S., 222 N.J. Super. 247, 250

(App. Div. 1988).

22 A-0359-15T3

(a person is guilty of aggravated sexual assault "if he commits

an act of sexual penetration with another person . . . [under] 13

years old") with N.J.S.A. 2C:14-2(b) (a person is guilty of "sexual

assault if he commits an act of sexual contact with a victim who

is less than 13 years old and the actor is at least four years

older than the victim"). Accordingly, the trial court's refusal

to charge the jury consistent with Short and Villar was reversible

error.

IV.

Defendant next argues in Point IV that the trial court

improperly admitted five out-of-court statements from the victim,

his parents, a detective, and a child abuse pediatrician.

Defendant contends the statements were inadmissible hearsay,

cumulative, and should have been excluded under N.J.R.E. 403. We

affirm the challenged evidentiary rulings with two exceptions

which we address for purposes of the remanded proceedings.

A trial court's evidentiary rulings are "entitled to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment." State v. Brown, 170 N.J.

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)). Unless the trial court "was so wide of the mark that a

manifest denial of justice resulted," we may not substitute our

23 A-0359-15T3

judgment for that of the trial court. Marrero, 148 N.J. at 484

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

The trial court admitted J.C.'s recorded statement, his

statements to his parents, and to the detective pursuant to

N.J.R.E. 803(c)(27), which permits the admissibility of out-of-

court statements made by children relating to a sexual offense. 6

We conclude based on our review of the trial record that: (1)

J.C.'s father's testimony about what the victim told him – that

defendant bit his "peepee"; (2) the detective's testimony about

J.C.'s statements to his mother at the police station; (3) the

victim's own recorded statement given at the police station; and

(4) J.C.'s mother's testimony about his out-of-court statements

to her in their home were clearly admissible in accordance with

N.J.R.E. 803(c)(27) as all three prongs of the Rule were satisfied.

We find defendant's arguments challenging the admissibility of

this evidence to be without merit and not warranting extended

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

6

Statements made out-of-court by a child under the age of 12

relating to sexual misconduct committed with or against the child

are admissible if (1) the opposing party is on notice; (2) the

court finds there is a probability that the statement is

trustworthy, and (3) the child testifies at the proceeding, or the

child is unavailable as a witness and there is corroborating

admissible evidence. N.J.R.E. 803(c)(27).

24 A-0359-15T3

Defendant also argues the testimony of the child abuse

pediatrician, who was also qualified as an expert, was improperly

admitted under N.J.R.E. 803(c)(4), which deems admissible

"[s]tatements made in good faith" for the "purposes of medical

diagnosis or treatment," because the statements made by the victim

to the pediatrician were not relevant to diagnosis or treatment.

Specifically, the pediatrician testified that J.C. stated during

her examination that "he bit here" and "pointed to his penis." We

find no abuse of discretion in the trial court's admission of this

testimony under N.J.R.E. 803(c)(4) because our review of the record

confirms that J.C.'s statements occurred when he was brought to

the pediatrician for the purpose of treatment as a result of the

alleged sexual assault and not evidence gathering. Cf. In the

Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985)

(doctor's testimony pertaining to a child's statements regarding

alleged abuse inadmissible because the doctor was consulted for

evidence gathering purposes).

Finally, defendant's reliance upon State v. E.B., 348 N.J.

Super. 336 (App. Div. 2002) for the proposition that prejudicial

"extra weight" was afforded to J.C.'s allegations based on the

number of admitted out-of-court statements of abuse is misplaced.

In E.B., 348 N.J. Super. at 338, 346, the trial court excluded

testimony of a vital defense witness allowing only the defendant

25 A-0359-15T3

to testify on his behalf but permitting the State to present five

witnesses who testified pursuant to N.J.R.E. 803(c)(27). In that

case, although we cautioned about the "extra weight" that may be

given when multiple witnesses testify to abuse, our criticism was

not directed to the prosecution's use of multiple witnesses but

rather the trial court's failure to give a "modicum of compensatory

liberality to [the] defendant in the presentation of his proofs."

Id. at 346. Here, the jury heard the child's version multiple

times but unlike in E.B., defendant was not denied testimony of a

vital witness to his case. Under these circumstances we find no

reason to conclude that the trial court abused its discretion in

determining that the probative value of the multiple out-of-court

statements was not "substantially outweighed" by the risk of "undue

prejudice" or the "presentation of cumulative evidence." N.J.R.E.

403.

However, the trial court permitted over defendant's objection

the testimony of the treating child abuse pediatrician that during

the history portion of J.C.'s examination his mother informed her

"there was oral genital contact." The trial court admitted the

testimony pursuant to N.J.R.E. 803(c)(4) concluding the hearsay

was "reasonable." While the child's statements were clearly

admissible, it was error to permit the treating pediatrician to

channel the child's statement through the cumulative hearsay

26 A-0359-15T3

statement of his mother for the stated purpose of treatment or

diagnosis.

Similarly, although the trial court properly sustained

defendant's objection and precluded the pediatrician from

testifying about where in the home the alleged abuse took place

as clearly unrelated to medical diagnosis or treatment, the witness

was nevertheless permitted to testify regarding the movie that

J.C. was watching during one of the encounters. We conclude that

such a corroborative fact should not have been admitted through

the doctor as it was irrelevant to treatment or diagnosis and was

cumulative of other evidence. Because we are reversing the

conviction on other grounds, we need not determine if the erroneous

introduction of this evidence resulted in a manifest denial of

justice. That error, however, should not be repeated in any future

proceedings in this case.

V.

Finally, we reject defendant's collateral estoppel argument

in Point V and find it to be without sufficient merit to warrant

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

provide only these brief comments.7

7

The collateral estoppel issue was not raised before the trial

court directly. Rather, it was framed by defendant as a double

jeopardy argument. Applying either the plain error or harmless

error standard, Rule 2:10-2, we conclude the trial court committed

27 A-0359-15T3

Defendant maintains that because the first jury acquitted him

on count two, it definitively determined that he had not acted

"purposely" and thus the State was barred from litigating that

issue at the second trial. Defendant's argument, however, rests

on an incorrect assumption regarding the first jury's verdict and

a mischaracterization of the subsequent trial proceedings.

While it is true that the first jury acquitted defendant on

count two, which has a "purposeful" mens rea element, the

definition of "sexual contact" under that count requires the

defendant to commit sexual contact for the specific purpose of

"degrading or humiliating the victim or sexually arousing or

sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Thus, as

the State correctly observes, it is equally as possible that the

first jury acquitted defendant on count two because they did not

believe he acted with these motivations. Nevertheless, even if

we were to assume that the jury found that defendant did not have

a "purposeful" mental state, we are satisfied after our review of

the trial record that the prosecution in its pursuit of a

conviction for counts one and three, did not attempt to argue that

defendant acted purposefully and thus the proscriptions against

re-litigating a previously decided issue addressed in Ashe v.

no error on this point, let alone any that produced an unjust

result.

28 A-0359-15T3

Swenson, 397 U.S. 436, 444 (1970) and State v. Cormier, 46 N.J.

494 (1966) are inapplicable here.

Unlike in Ashe, a fair reading of the record in the second

trial fails to support defendant's assertion that the State was

re-litigating an issue addressed previously — the acquitted charge

of sexual contact. The essence of defendant's allegations that

the State re-litigated the mental culpability issue stems from

statements made during the prosecutor's closing, which defendant

characterizes as arguments in favor of purposeful action. Yet,

defendant was not re-indicted on "purposeful" sexual contact nor

was the jury given instruction that the State had to prove

"purposeful" intent. Further, to convict defendant for aggravated

sexual assault under N.J.S.A. 2C:14-2(a)(1), the State only needed

to prove that defendant acted "knowingly." In this regard, the

prosecution repeatedly emphasized the word "knowledge" and that

defendant "knew what he was doing" during closing argument.

Affirmed in part, reversed in part and remanded for a new

trial. We do not retain jurisdiction.

29 A-0359-15T3