State of New Jersey v. G.S.

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NOT FOR PUBLICATION WITHOUT THE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-3225-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.S.,

Defendant-Appellant.

________________________

Argued February 27, 2024 – Decided March 22, 2024

Before Judges Whipple, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Indictment No. 20-02-0149.

Zachary Gilbert Markarian, Assistant Deputy Public

Defender, argued the cause for appellant (Jennifer

Nicole Sellitti, Public Defender, attorney; Zachary

Gilbert Markarian, of counsel and on the brief).

Leandra L. Cilindrello, Assistant Prosecutor, argued

the cause for respondent (Camelia M. Valdes, Passaic

County Prosecutor, attorney; Leandra L. Cilindrello, of

counsel and on the brief).

PER CURIAM

Defendant G.S. appeals from a judgment of conviction and sentence after

a jury found him guilty of sexually assaulting a minor under the age of thirteen

and related offenses. We affirm as to the conviction and sentence. However,

we remand to the sentencing court to provide reasons in support of the penalty

imposed under the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A.

2C:14-10(a).

We recite the facts from the fresh complaint evidentiary hearing and the

trial testimony.

G.V. (Gia)1 is the mother of five children, including the victim in this case,

W.C. (Wanda), born in 2004. Defendant lived with Gia and her children from

2011 until his arrest.2

Wanda alleged defendant sexually assaulted her on three occasions.

According to Wanda, the first assault occurred when she was eleven years old.

The second assault occurred just after her thirteenth birthday. The third assault

took place when she was fourteen after the family returned from a trip to a lake.

1

We use pseudonyms to preserve the parties' confidentiality. R. 1:38-3(c)(9)

and N.J.S.A. 2A:82-46.

2

Defendant and Gia were never married.

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2

At trial, Wanda described the three sexual assaults in detail. She

explained each assault occurred in her bedroom. At the time of the sexual

assaults, Wanda shared a bedroom with her two brothers. However, the brothers

were heavy sleepers and heard nothing during any of the alleged assaults.

On February 25, 2020, a grand jury indicted defendant on the following

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

sexual assault, N.J.S.A. 2C:14-2(b); three counts of second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a)(1); two counts of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); and two counts of first-

degree sexual assault, N.J.S.A. 2C:14-2(c)(4). Defendant pleaded not guilty to

these charges.

Prior to trial, the State moved to admit fresh complaint testimony from

Gia and Wanda's school friend, A.C. (Amy). Defendant served a subpoena on

Wanda, seeking to have her testify at the fresh complaint hearing.

The motion judge conducted a two-day evidentiary hearing on the fresh

complaint evidence. The judge denied defendant's request to have Wanda testify

at this hearing.

At the conclusion of the fresh complaint hearing, the judge found Wanda

made complaints to Gia regarding defendant's sexual abuse. Specifically,

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3

Wanda "told her mother via text message[s] and [a] phone call that the defendant

'violated her.'" The judge further found Gia "is a person [Wanda] would

normally turn to for support" and the "disclosure was made within a reasonable

time of the abuse." The judge noted that the last incident of sexual abuse

occurred on August 25, 2018, and Wanda disclosed the abuse to her mother on

August 27, 2018. The judge determined "the disclosure was spontaneous and

voluntary."

During the hearing, Gia also testified about her family's trip to a lake on

August 25, 2018. Gia and her family were joined by additional family and

friends, including Wanda's teenage boyfriend. According to Gia, Wanda's aunt

saw Wanda "kissing and hugging" the boyfriend. When Gia later learned this

information, she sent a text to Wanda about Wanda's relationship with the

boyfriend.

Gia and Wanda then exchanged a series of text messages. In the text

messages, Wanda sought to avoid a discussion about her relationship with the

boyfriend. Wanda texted that she had to talk to her mother "about something."

Gia pursued the text message exchange, asking what it was that Wanda wanted

to discuss. In response, Wanda again deflected. Gia then asked via text message

A-3225-21

4

if someone "disrespected" Wanda. Wanda eventually texted Gia that, two nights

earlier, defendant entered her bedroom and "raped [her]".

Amy also testified at the fresh complaint hearing. Amy and Wanda

attended seventh grade together and were best friends at the time. According to

Amy, Wanda twice shared that defendant "had touched her inappropriately."

The judge found Amy's testimony "credible," "reasonable," and "believable."

The judge also determined Amy was "a person that [Wanda] would normally

turn to," the timeliness of Wanda's revelations "occurred while the abuse was

ongoing," and Wanda's disclosures to Amy were "voluntary and spontaneous."

At the conclusion of the fresh complaint hearing, the judge granted the

State's motion to introduce fresh complaint testimony from Gia and Amy during

the trial. The judge expressly allowed the testimony "conditioned upon 1) the

victim testifying at trial and 2) subject to the limiting instruction, instructing the

jurors how to consider fresh complaint testimony."

Defendant's trial took place over four non-consecutive days in November

2021. During opening argument, defense counsel stated:

Now, the State is likely going to try to argue that

[Wanda]'s story alone is enough to convict

[defendant]. . . . [T]he State might argue, why would

[Wanda] make it up if it wasn't true?

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5

. . . You're . . . going to hear that on the day that

[Wanda] told her mom that [defendant] was abusing

her, it was directly in response to her mother

confronting [Wanda] about kissing [Wanda]'s

boyfriend.

The trial judge interrupted defense counsel's opening statement and asked

counsel to convene at sidebar. At the sidebar conference, the judge sua sponte

raised an objection to defense counsel's reference to Wanda kissing the

boyfriend. The judge concluded kissing was "sexual conduct" and any reference

to kissing was barred under the Rape Shield Law, N.J.S.A. 2C:14-7.

In addition to concluding the Rape Shield Law barred the kissing

reference, the judge also excluded the reference under N.J.R.E. 403. The judge

ruled:

I think that the prejudice here, even making [the]

argument that it has that evidential exception, the

prejudice here outweighs any probative value the

evidence might have. So, the point is that I think that

probative value here is really low in comparison. Even

if you judge it ultimately by let's say just regular rules

of evidence let's assume for the sake of argument it[']s

not ultimately inherently sexual in nature . . . . The

allegation is that she is kissing this boyfriend. . . . I

don't know that this assertion is relevant to the crimes

allegedly committed here. It renders the probative

value low . . . . [A]ny probative value [is] substantially

outweighed by the great risk of undue prejudice on this

child. So that would be pursuant to Rule 403.

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The judge also gave the following curative instruction to the jury

regarding the kissing reference during opening argument:

So, ladies and gentlemen[,] if you see the [c]ourt stop

counsel at all throughout the trial, ask them to approach

the bench in the midst of any portion of the trial[,] I just

want to advise you it's merely to deal with legal issues

that from time to time arise and evolve and that we're

trying to decide. You shouldn't have any negative

speculation or inferences that you should draw from

those occurrences. They're common during any trial.

Now, in addition, you heard a statement during opening

arguments that the circumstances of the child's

disclosure of sexual abuse by defendant came about

while the child was being questioned by her mother, if

she, the child had kissed her boyfriend. As I told you

earlier today, statements made by counsel in opening

and closing arguments are not evidence and should not

be regarded as evidence by you. Additionally, I'm

striking that portion of the opening statement. That

means that the statement must be disregarded by you

and it shall not enter into your final deliberations. This

means that even though you may remember the

testimony, you are not to use it in your discussions or

deliberations.

As part of defendant's trial strategy, defense counsel asserted Wanda lied

about defendant's sexual abuse to deflect from Gia's concerns that Wanda

engaged in some form of inappropriate conduct. As part of her ultimate ruling

on the exclusion of any reference to Wanda's kissing her teenage boyfriend, the

judge explained there were other ways for defense counsel to achieve the same

objective during the trial. The judge stated:

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7

defendant still has the complete opportunity based on

the arguments made before the jury to set forth their

reasonable defense that [Wanda] didn't like

[defendant], they didn't get along, they had a bad

relationship, he bad mouthed her . . . . He would belittle

her. So, the defense even without this still has the

opportunity to argue . . . that [Wanda] made it up, that

[the sexual assaults] didn't happen, because of their bad

relationship, because he would belittle her and verbally

abuse her. All of those defenses are still open,

available, and viable to the defense.

Thereafter, defendant's trial continued. Defense counsel never mentioned

Wanda kissing her boyfriend again.

During the trial, the jury heard testimony from the State's witness,

Detective Kilbret Boreland, who investigated Wanda's sexual assault

allegations. The detective explained she used buccal swabs to obtain a DNA

sample from Wanda. She also testified she collected buccal swab samples from

defendant. On this issue, the following exchange occurred between the detective

and the prosecutor:

Q. . . . Did there come a point in time where you

collected buccal swabs from [] defendant?

A. Yes, pursuant to a court order.

Q. Okay. So, he did not provide them voluntarily?

A. No.

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8

Detective Boreland also testified that defendant's DNA was not found on

or inside Wanda's body, or on any items taken as evidence from Wanda's

bedroom. The detective further explained none of Wanda's family or friends

reported witnessing defendant sexually abuse Wanda, and the nurse who

examined Wanda found no physical injuries.

Amy testified at trial consistent with her testimony during the fresh

complaint evidentiary hearing.

Prior to Gia's trial testimony, outside the jury's presence, the judge and

counsel discussed the permissible scope of defense counsel's cross-examination

of Gia. The following exchange took place:

JUDGE: As far as I'm concerned, I think reasonably

speaking you can ask [Gia] did this begin as a result of

you confronting your daughter about something you

thought she did.

DEFENSE COUNSEL: That's all that I want to ask.

JUDGE: I think that's perfectly permissible. It answers

the question or brings in the issue that you want to bring

in, which is she thought she was in trouble, right? You

can make that argument to the [j]ury. She thought she

was in trouble and as a result of that she made this

whole thing up. Right?

DEFENSE COUNSEL: Yeah, I think [] that question

is fine, Judge.

JUDGE: Fair enough?

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9

DEFENSE COUNSEL: Yes.

JUDGE: Do you have any issue with that question?

PROSECUTOR: No, because I do think the [d]efense

has, you know, should have the ability to present what

they think is [the motivation] [to] lie. I think it covers

that.

Gia then testified at trial. Gia stated she was a "[h]eavy sleeper" and never

witnessed defendant sexually assault Wanda. Gia also heard no noises

emanating from Wanda's bedroom on the dates of the alleged sexual assaults.

Gia further testified Wanda never complained of any injury that might have been

linked to the sexual abuse. Gia confirmed she first learned defendant sexually

assaulted Wanda after her text exchanges with Wanda on August 27, 2018. Gia

also testified defendant tended to scold, yell, and verbally abuse Wanda. As a

result, Gia explained Wanda disliked defendant.

Wanda testified at trial regarding the three sexual assaults. She also

explained she told Amy about defendant's sexual abuse to "see how [Amy

would] react" to gauge how Gia might react to such a disclosure. Wanda

testified she initially did not report defendant's abuse because she feared losing

defendant's financial support for her family and damaging defendant's

relationship with one of her brothers. However, Wanda stated she was "already

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10

planning to tell" Gia about defendant's abuse before August 27, 2018, because

Wanda "wanted it to stop."

The State also called forensic nurse examiner, Joanne Hatt, to testify at

trial. Nurse Hatt conducted a forensic medical examination on Wanda and took

DNA samples from her on August 27, 2018. Based on her examination, Nurse

Hatt found Wanda's genitals were "normal," and discovered no bruises, cuts,

tears, scratches, or abrasions anywhere on Wanda's body. Nurse Hatt confirmed

she found no "physical signs or injuries" to indicate Wanda had been sexually

assaulted.

As part of the trial testimony, counsel stipulated the evidence from

Wanda's sexual assault kit and the items taken from Wanda's bedroom did not

reveal the presence of any seminal fluids. Counsel also stipulated the results of

Wanda's buccal swabs found no male DNA.

During closing argument, defense counsel argued Wanda's story was

fabricated because her allegations were unsupported by any physical evidence

or eyewitness testimony. Defense counsel noted Detective Boreland found no

evidence supporting Wanda's allegations and Nurse Hatt found no physical signs

of abuse. Defense counsel also highlighted various inconsistencies in Wanda's

testimony.

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11

Defense counsel also argued Wanda's story "ma[de] no sense," citing

Wanda's testimony that defendant assaulted her at least once when her brother

was sleeping in the same bed. Defense counsel questioned whether Wanda's

brother could have slept through defendant's assaulting Wanda without waking.

Defense counsel further argued Wanda's troubled relationship with

defendant provided sufficient motive for Wanda to "want [defendant] out of the

house." Defense counsel emphasized Wanda's text message confrontation with

Gia provided motive for Wanda to "make this story up," "distract [Gia] from

whatever [Gia] was confronting her about," and "avoid getting in trouble."

On November 9, 2021, a jury found defendant guilty on all counts. The

judge conducted a sentencing hearing on May 13, 2022. In weighing the

aggravating and mitigating factors, the judge applied aggravating factors one,

two, three, and nine, N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9), and mitigating

factors six, seven, and fourteen N.J.S.A. 2C:44-1(b) (6), (7), and (14). The judge

determined the aggravating factors outweighed the mitigating factors.

Upon merging certain counts, the judge sentenced defendant as follows:

twenty-five years in prison with no parole eligibility, registration pursuant to

Megan's Law, and parole supervision for life on count one; seven years in prison,

registration pursuant to Megan's Law, and parole supervision for life on count

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12

three; twelve years in prison subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, and five years of parole supervision upon release on count

four; and twelve years in prison subject to NERA and five years of parole

supervision upon release on count seven. The judge ordered the sentences on

counts three and seven to run concurrent to the sentence on count one and the

sentence on count four to run consecutive to count one. In the aggregate,

defendant received a total of thirty-seven years in prison. The judge also ordered

restitution in the amount of $20,630.66 and assessed a penalty of $7,000 payable

to the SCVTF.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT DEPRIVED G.S. OF THE

RIGHT TO PRESENT A COMPLETE DEFENSE

AND THE RIGHT TO CONFRONT THE

WITNESSES AGAINST HIM BY PROHIBITING

CRITICAL TESTIMONY REGARDING THE

COMPLAINING WITNESS'S MOTIVE TO

FABRICATE.

A. Testimony That [Wanda] First Accused G.S. of

Rape in Response to Being Questioned By Her Mother

About Kissing Her Boyfriend Was Not Subject to the

Rape Shield Statute Because Kissing Is Not "Sexual

Conduct."

B. Even If the Evidence Fell Under the Rape Shield

Statute, It Could Not Constitutionally Be Excluded As

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13

It Was Highly Relevant and Far More Probative than

Prejudicial.

POINT II

THE STATE IMPROPERLY BOLSTERED THE

CREDIBILITY OF [WANDA], ITS CENTRAL

WITNESS, BY ELICITING TESTIMONY FROM

HER MOTHER ABOUT THE ULTIMATE ISSUE

AND [WANDA]'S CREDIBILITY AND ARGUING

IN SUMMATION THAT THE JURY SHOULD

BELIEVE [WANDA] BECAUSE AN

INVESTIGATOR HAD "LOOK[ED] INTO" HER

CLAIMS. (Not raised below).

POINT III:

THE PROSECUTOR IMPROPERLY ELICITED

TESTIMONY COMMENTING ON G.S.'S EXERCISE

OF HIS FOURTH AMENDMENT RIGHT TO BE

FREE FROM UNREASONABLE SEARCHES. (Not

raised below).

POINT IV

THE TRIAL COURT VIOLATED G.S.'S DUE

PROCESS RIGHTS BY ADMITTING EVIDENCE OF

[WANDA]'S ALLEGED PRIOR DISCLOSURES AS

FRESH COMPLAINT EVIDENCE WITHOUT

PERMITTING G.S. TO QUESTION [WANDA]

REGARDING THOSE DISCLOSURES.

POINT V

THE CUMULATIVE EFFECT OF THE

AFOREMENTIONED ERRORS DENIED G.S. A

FAIR TRIAL. (Not raised below).

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POINT VI

A REMAND FOR RESENTENCING IS REQUIRED

BECAUSE THE COURT ERRED IN FINDING AND

WEIGHING AGGRAVATING FACTORS AND

FAILED TO EXERCISE ITS REQUISITE

DISCRETION IN SETTING A TOTAL FINANCIAL

OBLIGATION OF $31,260.66. (Not raised below).

A. The Court Improperly Double-Counted the

Elements of the Offense in Finding Aggravating Factor

Nine and Refusing to Find Mitigating Factor Nine,

Resulting in An Excessive Sentence.

B. A Remand is Necessary Because the Sentencing

Court Failed to Consider G.S.'s Ability to Pay the

Substantial $20,630.66 Amount of Restitution Imposed

by the Victims of Crime Compensation Board.

C. The Sentencing Court Failed to State Its Reasons for

the Discretionary Amount of the SCVTF Penalties It

Set, Instead Mistakenly Believing It Was Required to

Impose a Maximum Penalty on Each Conviction.

I.

We first consider defendant's argument that the judge erred by excluding

testimony regarding Wanda's kissing her teenage boyfriend at the lake. We

reject this argument.

We review a trial judge's decision to admit or exclude evidence for

"palpable abuse of discretion." State v. R.Y., 242 N.J. 48, 64-65 (2020). A trial

court abuses its discretion "when relevant evidence offered by the defense and

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15

necessary for a fair trial is kept from the jury." Id. at 65 (quoting State v. Cope,

224 N.J. 530, 554-55 (2016)). An abuse of discretion "arises when a decision is

made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis." Ibid. (quoting Flagg v. Essex

Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Where a trial judge "weighs the probative value of evidence against its

prejudicial effect pursuant to N.J.R.E. 403, [the judge's] ruling should be

overturned only if it constitutes 'a clear error of judgment,'" State v. Cole, 229

N.J. 430, 449 (2017) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)),

such that "its finding was so wide of the mark that a manifest denial of justice

resulted," ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

However, "if a trial court's discretionary decision is based upon a

misconception of the law," our review is de novo. State v. Lyons, 417 N.J.

Super. 251, 258 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995)). We also review

questions of statutory interpretation de novo. State v. Fuqua, 234 N.J. 583, 591

(2018).

Here, the judge proffered two reasons for excluding testimony regarding

Wanda kissing her boyfriend. The judge excluded the testimony under the Rape

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Shield Law, N.J.S.A. 2C:14-7. Additionally, applying the analysis under

N.J.R.E. 403, the judge concluded the probative value of such testimony was

outweighed by its prejudice.

The judge likely erred in excluding the referenced testimony under the

Rape Shield Law. However, the judge properly excluded the reference to

Wanda's kissing her boyfriend under N.J.R.E. 403.

New Jersey's Rape Shield Law provides:

a. In prosecutions for aggravated sexual assault, sexual

assault, . . . [or] endangering the welfare of a child in

violation of [N.J.S.A.] 2C:24-4 . . . , evidence of the

victim's previous sexual conduct shall not be

admitted . . . [,] except . . . [i]f the court finds that

evidence offered by the defendant regarding the sexual

conduct of the victim is relevant and highly

material . . . , and that the probative value of the

evidence offered substantially outweighs its collateral

nature or the probability that its admission will create

undue prejudice, confusion of the issues, or

unwarranted invasion of the privacy of the victim, the

court shall enter an order setting forth with specificity

what evidence may be introduced and the nature of the

questions which shall be permitted . . . .

....

c. Evidence of previous sexual conduct with persons

other than the defendant . . . shall not be considered

relevant unless it is material to proving the source of

semen, pregnancy or disease.

....

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f. For the purposes of this section, "sexual conduct"

shall mean any conduct or behavior relating to sexual

activities of the victim, including but not limited to

previous or subsequent experience of sexual

penetration or sexual contact, use of contraceptives,

sexual activities reflected in gynecological records,

living arrangement and life style.

[N.J.S.A. 2C:14-7.]

The Rape Shield Law governs the admissibility of "evidence of the

victim's previous sexual conduct" in prosecutions for sexual assault cases.

N.J.S.A. 2C:14-7(a). "[S]exual conduct" is defined as "any conduct or behavior

relating to sexual activities of the victim, including but not limited to previous

or subsequent experience of sexual penetration or sexual contact. . . ." N.J.S.A.

2C:14-7(f).

"The statute's purpose "'is to protect the privacy interests of the victim

while ensuring a fair determination of the issues bearing on the guilt or

innocence of the defendant."'" State v. J.D., 211 N.J. 344, 355 (2012) (quoting

State v. P.S., 202 N.J. 232, 261 (2010)). The statute is meant to "deter the

unwarranted and unscrupulous foraging for character-assassination information

about the victim" and "does not permit introduction of evidence of the victim's

past sexual conduct to cast the victim as promiscuous or of low moral character."

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Ibid. (quoting State v. Schnabel, 196 N.J. 116, 128 (2008)). "Those concerns

apply equally to a child-victim." Schnabel, 196 N.J. at 128.

However, the protection of a child-victim must be balanced against a

defendant's right to have "a meaningful opportunity to present a complete

defense." State v. Budis, 125 N.J. 519, 531 (1991) (quoting Crane v. Kentucky,

476 U.S. 683, 690 (1986)). In applying this balancing approach, our Supreme

Court has construed the statute to disallow "evidence of prior sexual conduct

that is only material (not highly material) and that only has probative value

outweighing (not substantially outweighing) its prejudicial impact." State v.

Garron, 177 N.J. 147, 172 (2003).

"The determination of whether evidence of a victim's prior sexual conduct

is admissible 'is exquisitely fact-sensitive' and 'depends on the facts of each

case.'" State v. Perry, 225 N.J. 222, 238 (2016) (quoting J.D., 211 N.J. at 358).

The trial court must "weigh the relevance of the proffered evidence, its necessity

to the defense, and its apparent veracity against its potential to humiliate the

victim, invade her privacy, and confuse the jury." J.D., 211 N.J. 358.

Here, the judge concluded kissing was "sexual conduct" and, therefore,

defendant was obligated to file a motion under the Rape Shield Law prior to

introducing such evidence. We disagree kissing is "sexual conduct" under the

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19

statute. Simply kissing, absent additional context or further details, is not

defined as sexual conduct under our Rape Shield Law.

The State's argument that kissing, without contextual background

information, constitutes sexual contact, or even sexual activity, would extend

the Rape Shield Law beyond its stated intent and purpose. For example, if the

State's position was correct, the Rape Shield Law could arguably be applied to

a grandparent kissing a grandchild. Such a position is belied by the text of the

Rape Shield Law. Therefore, we are satisfied that the judge erred in applying

the Rape Shield Law to preclude testimony about Wanda kissing her teenage

boyfriend.

However, the judge's exclusion of the kissing reference under the Rape

Shield Law does not end our analysis. The judge also determined the probative

value of the reference was outweighed by its prejudice to Wanda under N.J.R.E.

403.

N.J.R.E. 403 provides "relevant evidence may be excluded if its probative

value is substantially outweighed by the risk of . . . [u]ndue prejudice." Evidence

claimed to be unduly prejudicial is excluded only where its "'probative value is

so significantly outweighed by [its] inherently inflammatory potential as to have

a probable capacity to divert the minds of the jurors from a reasonable and fair

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20

evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486

(2001) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421

(1971)).

Here, the judge found the kissing testimony "[ir]relevant to the crimes

allegedly committed" by defendant, "render[ing] the probative value low." The

judge further found the testimony threatened to "imply some form [of]

promiscuity on the part of [Wanda] and to smear her character."

Defendant's trial strategy involved proffering evidence that Gia sought to

confront Wanda because Gia disapproved of Wanda's conduct with her

boyfriend. Defense counsel intended to argue to the jury that rather than engage

in confrontation with her mother on that subject, Wanda redirected her mother's

inquiry by disclosing defendant's sexual abuse. Despite defendant's arguments

to the contrary, defense counsel proffered evidence in support of his legal

strategy.

Specifically, the judge permitted defense counsel to extensively cross-

examine Gia related to her text messages with Wanda that led to the disclosure

of defendant's sexual abuse. The judge merely precluded defense counsel from

questioning Gia about Wanda kissing her boyfriend at the lake. In that regard,

defendant's attorney engaged in the following examination of Gia:

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21

Q. . . . [Y]ou had a text message conversation with

[Wanda]. Correct?

A. Yes.

Q. At some point in that conversation, [Wanda]

made a disclosure to you.

A. Yes.

Q. That disclosure did not come in the first text

message, did it?

A. No.

Q. You sent the first text message in that

conversation.

A. Yes.

Q. So you started the conversation with [Wanda].

A. Yes.

Q. And you texted [Wanda] because you had heard

something about her.

A. Yes.

Q. And so you texted her to confront her about what

you had heard.

A. Yes.

Q. And rather than responding to what you had

confronted [Wanda] about, she told you that she needed

to talk to you about something.

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22

A. Yes.

Based on the foregoing testimony, the jury could have presumed Gia

learned Wanda skipped school, drank alcohol, took drugs, or engaged in some

other misconduct that might lead a mother to confront a daughter. Thus, the jury

may have believed the misconduct Gia sought to address with her daughter was

far worse than two teenagers kissing.

Here, the actual misconduct was not as important as defense counsel's

effort to demonstrate Wanda had a motive to lie to her mother. In support of

that theory, defense counsel made the following arguments during his closing

statement:

[L]et's think about the circumstances of [Wanda]'s

disclosure to her mom. [Gia] said on the stand

that . . . [Wanda] disclosed to her via text message that

[defendant] raped her. On cross, . . . [Gia]

clarified… that [Wanda]'s accusation wasn't just out of

the blue. [Gia] initiated that text conversation. And

she started it by confronting [Wanda] about something

[Gia] had heard that [Wanda] had done.

And rather than respond to that text, rather than respond

to her mom's accusation, [Wanda] deflected and

distracted. She changed the subject. . . . And it worked

because [Gia] completely stopped thinking about

confronting [Wanda].

....

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23

If [Wanda]'s goal was to distract from whatever her

mom was confronting her about in that first text, she

was certainly successful. Why do I mention these

things, the texts, the context of the disclosure,

[Wanda]'s dislike of [defendant]? I mention it because

they could explain why [Wanda] would make this story

up.

During the trial, defendant offered testimony and evidence to support the

defense theory that Wanda concocted the sexual assault allegations against

defendant to prevent a confrontation with her mother about certain improper or

inappropriate conduct. The actual conduct that Gia sought to address with

Wanda did not preclude defense counsel from arguing Wanda had a reason to

lie to her mother to avoid a confrontation.

Under these circumstances, we discern no abuse of discretion in the

judge's exclusion of the testimony regarding Wanda's kissing her boyfriend

under N.J.R.E. 403. The specific conduct, two teenagers kissing, had minimal

probative value. On the other hand, the potential prejudice associated with such

testimony clearly outweighed any limited probative value.

Based on our review of the record, we reject defendant's argument that he

was deprived of the right to present a complete defense. To the contrary, defense

counsel vociferously argued Wanda had more than one motive or reason to

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invent the sexual assault allegations against defendant. However, the jury was

unpersuaded by those arguments.

II.

We next consider defendant's argument the judge erred by allowing

testimony which improperly bolstered Wanda's credibility. Defendant asserts

the State elicited testimony from Gia that Wanda "repeatedly swore to [Gia] that

she was telling the truth" and this testimony improperly bolstered Wanda's

credibility. He further argues Wanda's credibility was improperly bolstered

when the prosecutor argued in summation that Wanda's allegations were

credible because an investigator "look[ed] into" the allegation.

A.

We first address defendant's arguments regarding Gia's testimony. We

reject his arguments that Gia's testimony improperly bolstered Wanda's

credibility.

A witness may not "express a view on the ultimate question of guilt." See

State v. C.W.H., 465 N.J. Super. 574, 600 (App. Div. 2021) (citation removed)

(citing State v. Bethune, 121 N.J. 137, 148 (1990) and quoting State v. McLean,

205 N.J. 438, 461 (App. Div. 2011)).

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On appeal, defendant argues the State improperly allowed Gia to opine on

the ultimate jury issue—defendant's guilt.

At trial, Gia testified as follows on direct examination:

Q. . . . [C]an you tell us if you know who raped your

daughter?

A. The person that was my partner.

Q. And th[at] person . . . , do you know his name?

A. Yes.

Q. What is his name?

A. [G.S.].

Additionally, the State elicited through Gia's testimony that Gia asked

Wanda several times to swear she was telling the truth. Further, on direct

examination, Gia explained that when speaking with Wanda on the telephone,

her daughter sounded "nervous [and] frail."

Defendant did not object to Gia's testimony during the trial. Thus, we

review for plain error. R. 2:10-2. A plain error is one "clearly capable of

producing an unjust result." State v. G.E.P., 243 N.J. 362, 389 (2020) (quoting

R. 2:10-2). "In the context of a jury trial, the possibility must be 'sufficient to

raise a reasonable doubt as to whether the error led the jury to a result it

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otherwise might not have reached.'" Id. at 389-90 (quoting State v. Jordan, 147

N.J. 409, 422 (1997)).

Defense counsel vigorously cross-examined Gia on the issue of

defendant's guilt. During cross-examination, Gia confirmed the following: she

"never observed [defendant] sexually abusing [Wanda]"; she "never heard any

sexual noises coming from [Wanda]'s bedroom in the middle of the night"; she

"never heard [Wanda] crying or yelling in the middle of the night"; Wanda

"never complained about any injury[,] such as pain or bleeding[,] that would

have suggested . . . that she was being sexually abused"; and "[t]he first time

that [Gia] ever learned anything about an allegation of sexual abuse was when

[Wanda] told it to [Gia] on August 27, 2018."

Having reviewed the record, we are satisfied the State did not elicit Gia's

testimony for the purpose of offering lay opinion testimony on defendant's guilt

or to improperly bolster Wanda's credibility. The State's direct examination of

Gia established the timeline related to Wanda's disclosure of defendant's sexual

abuse and the circumstances surrounding the disclosure of the allegation. At no

time did Gia testify she believed Wanda's allegations were truthful or credible.

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B.

Defendant further asserts the judge erred in permitting the State to

improperly bolster Wanda's credibility by suggesting during closing argument

that Wanda's allegation had been "looked into" by an investigator before

defendant was charged. We reject this argument.

The State may not personally vouch for a witness's credibility or otherwise

"refer[] to matters outside the record" to bolster that witness's credibility. State

v. Marshall, 123 N.J. 1, 156 (1991). However, "[a] prosecutor is not forced to

idly sit as a defense attorney attacks the credibility of the State's witnesses; a

response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div.

2000). "Generally, remarks by a prosecutor[] made in response to remarks by

opposing counsel are harmless." Id. at 284-85 (quoting State v. C.H., 264 N.J.

Super. 112, 135 (App. Div. 1993)).

During closing argument, defense counsel stated:

[The State's witnesses] conducted a thorough

investigation[,] looking for evidence in all the places

you would expect to find it. And yet they found

nothing.

....

[Detective Orland] is someone who knows what she's

doing. . . . This is someone experienced, who knows

what to do, where to look, . . . what witnesses to talk to,

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and what steps to take to try to prove a charge. Why do

I say all this? Because . . . this experienced detective[,]

whose job . . . is to find evidence for the prosecutor if

any such evidence exists[,] found nothing.

And you heard what steps she took. She interviewed

multiple witnesses. She interviewed [Wanda]. She

interviewed [Wanda]'s brothers . . . . She interviewed

[Gia]. She interviewed [Amy]. She asked every single

one of these people if they observed [defendant]

sexually abuse [Wanda]. She looked for anyone who

could corroborate an actual detail of [Wanda]'s story.

And not one of them saw [defendant] do anything.

Detective Orland visited [the] apartment, visited the

scene. She looked around the apartment, went through

all the rooms, [Wanda]'s bedroom, [Gia]'s bedroom.

She took photos throughout the apartment so they could

be used here in court. Detective Orland collected every

single piece of physical evidence that we would want

her to collect.

She collected [Wanda]'s bed sheets, her blankets,

pillows, stuff[ed] animals. She told us that [Wanda]'s

underwear was collected by Nurse Hatt. [Wanda]'s

DNA was collected. [Defendant]'s DNA was collected.

All of these items were sent to the lab[,] where they

were tested to see if [defendant]'s DNA was present,

[or] if semen was present. . . .

But . . . there was none. There was no DNA. There

was no semen. No physical evidence present

whatsoever. Detective Orland didn't miss a thing. She

used her experience looking in places where you would

expect to find evidence of sexual assault and she found

no evidence.

In her closing argument, the prosecutor responded:

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[L]et's talk about what [d]efense counsel essentially

said as to [the State's] story. I have an allegation. Well,

that's true I have an allegation. That's not facts. And

guess what happens with an investigation, the

investigator looks at that allegation, looks into the facts.

Every crime in this courtroom, in this courthouse, in the

state, . . . in this country begins with an allegation.

Every single one. The allegation . . . gets investigated.

It gets . . . looked into. If there's charges filed and the

allegation makes its way into a courtroom as this case

has . . . , the minute a single witness walks through

those doors and takes that stand[,] that's evidence.

Testimonial evidence is exactly what it is.

Reviewed in the context of this trial, the State's remarks during closing

argument were not offered to bolster Wanda's credibility. While the prosecutor

stated Wanda's allegations had been "looked into," the jury heard testimony

regarding law enforcement's investigation into Wanda's allegations against

defendant. The prosecutor simply explained to the jury the process associated

with investigating a sexual assault allegation. More importantly, the jury heard

testimony that the results of the investigation by law enforcement found no

physical evidence to support Wanda's allegation against defendant. And defense

counsel's summation emphasized the absence of any physical evidence despite

law enforcement's investigative efforts.

Having reviewed the record, we are satisfied the prosecutor's remarks

during closing did not improperly bolster Wanda's credibility, particularly

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because the investigation revealed no physical evidence of any sexual assault.

Thus, the State's alleged bolstering of Wanda's testimony by noting her

allegations were investigated by law enforcement was incapable of producing

an unjust result on this record.

III.

We next address defendant's argument the judge erred in allowing the

State to elicit testimony regarding the need for a court order to obtain defendant's

DNA sample. He contends the testimony violated his Fourth Amendment right

to be free from unreasonable searches. Defendant also asserts the testimony

wrongfully implied he had a guilty conscience. We reject these arguments.

"[B]ecause suspects have a constitutional right to refuse consent to a

search, it is improper to allow a refusal to consent to be used at trial as evidence

suggesting guilt or guilty knowledge." State v. Tung, 460 N.J. Super. 75, 95-96

(App. Div. 2019) (citing U.S. v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988)).

Accordingly, "[i]n a sexual assault case, [if] the defendant . . . refuse[s] to

voluntarily provide a DNA sample . . . [,] '[t]he jury should not be allowed to

infer guilt' from [the] defendant's refusal to consent to a warrantless search." Id.

at 96 (quoting State v. Gauthier, 298 P.3d 126, 131 (Wash. Ct. App. 2013)).

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Here, Detective Boreland testified on direct examination that defendant's

buccal swab was obtained by a court order rather than provided voluntarily.

Defendant failed to object to the detective's testimony on this issue at trial.

Therefore, we review for plain error. R. 2:10-2; see also Tung, 460 N.J. Super.

at 98 (reviewing admission of "references to [the] defendant's refusal to consent

to a search" for plain error).

Defense counsel also chose not to cross-examine Detective Boreland

regarding defendant's refusal to consent to the buccal swab. The State never

referred to the detective's testimony on this issue during closing argument.

Moreover, the detective's reference to defendant's refusal was solitary and

fleeting.

Further, the jury heard testimony that the results of Wanda's sexual assault

kit examination found no DNA from defendant. The jury also heard defendant's

DNA was not found on any of the items from Wanda's bedroom. We are

satisfied the testimony regarding defendant's court ordered DNA sample was not

such that it would lead the jury to a result it may not have otherwise reached.

Thus, the admission of this single brief statement did not constitute plain error.

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IV.

Defendant next argues his right to due process was violated by admitting

fresh complaint evidence without first permitting him to examine Wanda at the

fresh complaint hearing as to the "details" and "circumstances" of the complaints

she made to Gia and Amy regarding defendant's sexual assaults. Defendant

claims Wanda's testimony was relevant to rebut the State's evidence that the

complaints had been made and qualified as proper fresh complaint evidence.

Defendant asserts his attorney sought to cross-examine Wanda regarding the

details of the alleged sexual assaults as part of his trial strategy to show Wanda

never made the disclosures. He claims the judge abused her discretion in failing

to permit his attorney to question Wanda during the fresh complaint evidentiary

hearing and thus deprived him of the right to a fair trial. We reject these

arguments.

Ordinarily, a third party's testimony about a victim's out-of-court

description of an alleged sexual assault is inadmissible hearsay evidence.

N.J.R.E. 802. Under the fresh complaint rule, the State is allowed to present

"evidence of a victim's complaint of sexual abuse, [which is] otherwise

inadmissible as hearsay, to negate the inference that the victim's initial silence

or delay indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455

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33

(2015). However, "the trial court is required to charge the jury that fresh

complaint testimony is not to be considered as substantive evidence of gui lt, or

as bolstering the credibility of the victim; it may only be considered for the

limited purpose of confirming that a complaint was made." Id. at 456 (citing

State v. Bethune, 121 N.J. 137, 147-48 (1990)).

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

have been made spontaneously and voluntarily, within a reasonable time after

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

Id. at 455 (citing State v. W.B., 205 N.J. 588, 616 (2011)). Where the victim is

a child, the fresh complaint rule must be applied flexibly "'in light of the

reluctance of children to report a sexual assault . . . .'" W.B., 205 N.J. at 618

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

Here, the judge found Wanda made disclosures regarding defendant's

sexual assaults to Gia and Amy. The judge further concluded Wanda's

statements were made spontaneously and voluntarily, within a reasonable time

after the alleged assaults, and to persons who Wanda would ordinarily turn to

for support.

Defense counsel was well aware of Amy and Gia's anticipated trial

testimony based on their testimony at the fresh complaint evidentiary hearing.

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Defense counsel vigorously cross-examined Amy and Gia about their

recollections regarding Wanda's disclosure of defendant's sexual abuse to

highlight inconsistencies between their trial testimony and fresh complaint

hearing testimony. Additionally, defense counsel extensively cross-examined

Wanda at trial.

Moreover, the judge gave the jury a detailed instruction regarding the use

of fresh complaint testimony consistent with the Model Jury Charge. See Model

Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007). The judge told

the jury the limited purpose of fresh complaint testimony and that the testimony

could not be considered as substantive evidence of defendant's guilt or Wanda's

truthfulness or credibility.

On this record, we are satisfied defendant's right to due process was not

violated by the lack of Wanda's testimony at the fresh complaint hearing.

V.

Defendant next argues the cumulative effect of the foregoing errors

deprived him of due process and a fair trial. Even where a defendant alleges

multiple errors, "the theory of cumulative error will still not apply where no

error was prejudicial and the trial was fair." State v. Weaver, 219 N.J. 131, 155

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(2014). Because we are satisfied there were no errors, individually or

cumulatively, we reject defendant's cumulative error argument.

VI.

We next consider defendant's sentencing arguments and request for a

remand on the sentencing issues. He contends the judge erred in weighing the

aggravating and mitigating factors. He further asserts the judge failed to

consider his ability to pay restitution. Additionally, defendant contends the

judge abused her discretion in setting the amount of the SCVTF penalty.

A.

Defendant argues the judge double-counted the elements of the offense in

applying aggravating factor nine concerning specific and general deterrence,

N.J.S.A. 2C:44-1(a)(9), and declining to apply mitigating factor nine, N.J.S.A.

2C:44-1(b)(9). We disagree.

We are "bound to affirm a sentence, even if [we] would have arrived at a

different result, as long as the trial court properly identifies and balances [the]

aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015). To accord

such deference, the sentencing court is required to "identify the relevant

aggravating and mitigating factors, determine which factors are supported by a

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preponderance of [the] evidence, balance the relevant factors, and explain how

it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215

(1989).

To apply aggravating factor nine, a court must find a "need for deterring

the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The

sentencing court must conduct a "'qualitative assessment' of the risk of

recidivism," including "determinations that go beyond the simple finding of a

criminal history and include an evaluation and judgment about the individual in

light of his or her history." State v. Fuentes, 217 N.J. 57, 78 (2014) (quoting

State v. Thomas, 188 N.J. 137, 153 (2006)). "[D]emands for deterrence are

strengthened in direct proportion to the gravity and harmfulness of the offense. "

Id. at 79 (quoting State in re C.A.H. & B.A.R., 89 N.J. 326, 337 (1982)). "If the

court determines . . . that aggravating factor nine applies, it should address both

general and specific deterrence." Id. at 81.

In applying aggravating factor nine, the judge stated:

I think aggravating factor number nine . . . should [be]

take[n] into consideration. . . . [T]he [c]ourt has a

strong need to deter [] [d]efendant . . . and others in

society from committing these types of offenses against

children. They are amongst . . . the most vulnerable

that we have in our society.

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Having reviewed the record, we are satisfied the judge did not

impermissibly double-count in applying aggravating factor nine. The judge

found defendant's abuse of Wanda happened more than once and would have

continued if Wanda remained silent. Additionally, the judge found the need to

specifically deter defendant from further abuse of Wanda as well as general

deterrence against defendant's potential to abuse other child victims in the

community.

Nor did the judge err in declining to apply mitigating factor nine, "[t]he

character and attitude of [] defendant indicate that [he] is unlikely to commit

another offense." N.J.S.A. 2C:44-1(b)(9). The judge noted defendant's lack of

criminal history and positive attributes cited by friends and family. However,

the judge stated, "it's hard . . . to determine whether these are circumstances

unlikely to reoccur" because the assaults "happened on more than one occasion,

and had the victim remained silent, reasonably-speaking it likely would have

continued."

We are satisfied there was sufficient credible evidence in the record for

the judge to apply aggravating factor nine and reject mitigating factor nine , and

she did not impermissibly double-count in applying aggravating factor nine.

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B.

We next consider defendant's argument that the judge erred in failing to

consider defendant's ability to pay restitution to the victim in the amount of

$20,630.66. Again, we disagree.

Because restitution is "rehabilitative in nature," a sentencing court must

determine "the amount the defendant can pay and the time within which he can

reasonably do so" before ordering restitution. State v. Paladino, 203 N.J. Super.

537, 547 (App. Div. 1985) (citing State v. Harris, 70 N.J. 586, 592-93 (1976)

and State in re D.G.W., 70 N.J. 488, 504-05 (1976)). A sentencing court must

"conduct at least a summary hearing" on the matter before entering such an

order. Ibid.

In discussing mitigating factor six, N.J.S.A. 2C:44-1(b)(6), defendant's

willingness to provide restitution or "participate in a program of community

service," the judge and defense counsel engaged in the following colloquy:

THE COURT: I know [defense counsel] asked the

[c]ourt to consider number six. And I know that the

State also . . . indicat[ed] that the [c]ourt should not take

that into consideration. [Defendant has] indicated . . .

that he has no income or assets.

So[,] I'm not quite sure what to do with this. Is he

willing to provide restitution for [the] Victims of Crime

Compensation Board? It's a total of $20,630.66. If he

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tells me that he's going to pay the restitution, I'll take

that into consideration. . . .

....

[DEFENSE COUNSEL]: Your Honor, [defendant] is

willing to pay back restitution. And I'll note for the

[c]ourt that while he is in prison, he will be working

and earning money[,] [a]nd that the restitution and fines

get garnished from his wages. So there certainly will

be a way for him to pay it back.

THE COURT: Okay. All right. So[,] I'll take

mitigating factor six into consideration on behalf of []

[d]efendant.

Here, defense counsel expressly requested consideration of mitigating

factor six. Notwithstanding the judge's concern regarding defendant's ability to

pay restitution, defendant did not request an ability to pay hearing. Instead,

defendant's attorney asked the judge to apply mitigating factor six and permit

defendant to pay restitution through the garnishment of his prison wages.

On this record, the judge engaged in a "summary hearing" on defendant's

ability to pay prior to imposing restitution. Based on defense counsel's

representation at the sentencing hearing, the judge properly determined

defendant had the ability to pay restitution based on the wages he will earn while

incarcerated.

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C.

Defendant argues the judge failed to provide a statement of reasons in

support of imposing the maximum statutory SCVTF penalty for each offense.

We agree with defendant on this issue.

N.J.S.A. 2C:14-10 provides "a person convicted of a sex offense, as

defined in [N.J.S.A. 2C:7-2], shall be assessed a penalty for each such offense

not to exceed: (1) $2,000, when the conviction is a crime of the first degree;

[and] (2) $1,000, when the conviction is a crime of the second degree."

In reviewing the record, the judge mistakenly believed she was statutorily

required to impose the maximum penalty amount. Additionally, the judge failed

to consider the required factors in assessing defendant's SCVTF penalty. Thus,

we are constrained to vacate and remand the portion of the judgment of

conviction limited to the SCVTF penalty for the judge to set forth reasons in

support of the penalty imposed after considering the required factors.

To the extent we have not addressed any of defendant's remaining

arguments, they are without sufficient merit to warrant discussion in a written

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

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Affirmed as to the conviction, sentence, and restitution. Remanded for

proceedings consistent with this opinion on the amount of the SCVTF penalty .

We do not retain jurisdiction.

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