STATE OF NEW JERSEY v. JONATHAN HUTCHINSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1377-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN HUTCHINSON,

Defendant-Appellant.

____________________________________________

October 28, 2011

 

Argued December 8, 2010 - Decided

 

Before Judges Axelrad, R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-01-0035.

 

Jeffrey C. Zucker argued the cause for appellant (Zucker, Steinberg, Sonstein & Wixted, P.A., attorneys for appellant; Mr. Zucker and Jack L. Weinberg, on the brief).

 

Dara Paley, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Daniel M. Vannella, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a mistrial, defendant Jonathan Hutchinson was convicted of three counts of endangering the welfare of a child.1 The trial court denied defendant's motions for judgment of acquittal n.o.v. and a new trial. The court sentenced defendant to three concurrent five-year terms, Megan's Law conditions, N.J.S.A. 2C:7-1 to -11 and N.J.S.A. 2C:47-5, parole supervision for life, N.J.S.A. 2C:43-6.3(a) and the requisite fines.

Defendant appeals his convictions, raising the following points of argument for our consideration:

POINT I: THE JURY VERDICTS IN THIS CASE WERE IRRATIONALLY INCONSISTENT CONSTITUTING A LOGICAL IMPOSSIBILITY. THE FAILURE OF THE STATE TO INDICT THE DEFENDANT ON THE SECOND PRONG OF THE ENDANGERING STATUTE AND THE COURT'S FAILURE TO CHARGE THE JURY ON THE ALTERNATIVE THEORY OF CULPABILITY RESULTED IN AN UNJUST VERDICT. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICTS.

 

POINT II: THE PROSECUTOR'S COMMENTS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL. (Partially Raised Below.)

 

POINT III: VARIOUS COMMENTS BY THE STATE'S EXPERT WITNESS, DR. PRESSMAN, DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)

 

POINT IV: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1. THE COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON COUNT FOURTEEN PURSUANT TO R. 3:18-1 & -2. (Partially Raised Below.)

 

A. R. 3:18-1 ARGUMENT.

 

B. R. 3:20-1 ARGUMENT.

 

POINT V: THE TRIAL COURT'S ACTIONS WITH REGARD TO THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially Raised Below.)

 

A. FURTHER JURY DELIBERATIONS CHARGE ISSUE.

 

B. SPECIFIC INTERROGATORIES.

POINT VI: THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S PRE-TRIAL MOTIONS CONCERNING STATEMENTS WHEN IN CUSTODY AND THE TAINT HEARING ISSUE.

 

A. THE DEFENDANT'S CUSTODIAL STATEMENTS.

 

B. THE TAINT HEARING.

 

POINT VII: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

 

We have carefully considered defendant's arguments, and we are convinced that none of the issues raised constitutes reversible error. We affirm.

The record reveals the following facts. In 2001, T.D. lived in defendant's house with defendant, her boyfriend, and her two daughters, C.D. and M.D. and her son, D.D. T.D. worked the night shift, so defendant would awaken the children for school and give them breakfast when he worked the day shift.

In January 2001, the oldest daughter, C.D., awoke to find defendant in her bed with his finger inside her vagina. She immediately told him to stop and threatened to tell her mother. Defendant, who was clothed, "started apologizing and telling [C.D.] that he would go to jail and lose his job and [her] mom would cry," if C.D. told. C.D. did not tell her mother what had happened. Two or three months later, C.D. awoke to find defendant again in her bed. She told defendant that she "didn't want him next to [her]" and defendant responded he was waking her up for school. It was around 1:00 a.m. He left and she fell asleep. Later that same night, C.D. awoke to find defendant touching her vagina with his penis. Defendant proposed vaginal intercourse with C.D., which she refused. "[H]e started apologizing again," and said, "I don't know what's wrong with me." C.D. still did not tell anyone about these incidents, because she "was scared and . . . wanted to go out . . . to preach [her] religion" as a Jehovah's Witness, instead of staying home.

Around November 2001, C.D. awoke to find defendant again in her bed. Defendant's penis was touching her and he was touching her chest. Both defendant and C.D. were clothed. Again, she threatened to tell her mother, and "he just kept apologizing like the other times" and "seemed very scared."

C.D. testified at trial that there were other times when defendant would "lay down and . . . start feeling on [her]," but she could not recall when or what had transpired, and she admittedly never told anyone about them. She "was too scared" to tell anyone. On cross-examination, C.D. testified that defendant sometimes "tickle[d]" her high up on her thigh and close to her vagina, maybe ten times, but she never told anyone, except the prosecutor and the jury.

Although she could not recall exactly when, C.D. told her mother about defendant's actions sometime between the first and last incidents. According to T.D., C.D. told her in 2001 that defendant "was touching on her inappropriately, that he was touching on her vagina." T.D. immediately took her children to her sister's house and returned to confront defendant. They talked for "a few hours," and defendant said that he was sorry, was sick, and needed help, but he never said he had been unaware of what he was doing or that he was sleepwalking. T.D. did not ask defendant about any details and did not contact the police. She returned to defendant's house with the children that same day.

Thereafter, defendant continued to care for the children as before and T.D. was satisfied with their interactions. C.D.'s complaints stopped. However, in March 2002, C.D. told T.D. that defendant "was touching on her again." T.D. immediately took her children and moved in with her aunt and uncle. Her uncle, who was an Elder in her church, urged her to go to the police. Eventually, on March 22, 2002, T.D. took C.D. to the local police station. C.D. spoke first to a patrolman, who took her and T.D. upstairs to be interviewed by Detective, now Lieutenant, Ernest R. Cuff. As a result of the interviews, on March 22, 2002, Detective Cuff and Detective Arnaldo Santos went to apprehend defendant at his work. Defendant told Detective Cuff that he was expecting the police to show up regarding "the thing with [C.D.]" Detective Cuff told defendant that he had spoken with C.D., and defendant replied that "she was a good girl and would not lie." Defendant also told Detective Cuff about problems at his job with rotating shifts, problems with his parents separating and getting a divorce, and his money problems. During the interview in Detective Cuff's office, defendant "remembered three occasions whe[n] something had happened with [C.D.] regarding a sexual nature."

At trial, defendant presented Dr. Gerald Cooke, Ph.D., a licensed psychologist, as an expert in clinical and forensic psychology. Dr. Cooke had been asked to perform a psychological examination of defendant to establish if he suffered from a sleepwalking disorder and if he could have committed the crimes against C.D. "knowingly, purposefully and voluntarily" or while sleepwalking. To come to a conclusion, Dr. Cooke reviewed various records and interviewed defendant's mother. During his testimony, Dr. Cooke explained that sleepwalking occurs in very deep sleep, and two important factors contributing to its cause are stress and irregular sleep patterns. He stated, "[p]eople who have sleepwalking disorder sleepwalk more if they are on rotati[ng] shifts, rather than having a standard time of night that they sleep."

According to Dr. Cooke, a sleepwalking disorder consists of four essential elements: (1) repeated episodes involving simple or complex motor activities while the person is asleep; (2) unresponsiveness during those activities; (3) a brief period, from a couple of seconds to a few minutes, of confusion and disorientation when the person awakens; and (4) partial or complete amnesia of the activities in which the person was engaged while sleepwalking. Also, Dr. Cooke noted that eighty percent of people with a sleepwalking disorder have a history of other family members who are sleepwalkers. He conceded, however, that there is no "definitive test profile that will say . . . this man is a sleepwalker, but the dynamics are consistent."

Dr. Cooke asked defendant about the incidents with C.D., and defendant remembered waking up in C.D.'s bed, but he did not remember going there or what happened. "The first memory he ha[d] . . . [was] she was grabbing his hand and saying his name," and then he was briefly confused and disoriented. He apologized and went to his own bed. The same thing happened the second time. "The third episode was more serious in that he was aware, when he awoke, that his hand was being pulled from her private area." He apologized, and "didn't know what to do about it." He admitted begging C.D. not to tell her mother; he was afraid of losing them, losing his job, and going to jail.

Dr. Cooke learned from defendant's mother that defendant's father had physically abused him. She also revealed that both his father and sister were sleepwalkers, but defendant was the most active. She told Dr. Cooke about significant sleepwalking episodes during defendant's childhood; they started when he was four. According to Dr. Cooke, "literature tells us that the initial episode of sleepwalking in people who develop the disorder is generally between ages four and eight."

The doctor diagnosed defendant with: (1) disthymic disorder (chronic depression), which was not "really severe enough to impair him greatly, though it interferes," and (2) "sleepwalking disorder." He determined,

[Defendant] ha[s] an extensive family history of sleepwalking disorder and that's consistent with what we know about the disorder. Second, [defendant], himself personally, has a significant history of sleepwalking, back to the age of four, into adulthood, as told to me by his mother and there is additional information, I believe, from his ex-wife and his ex-girlfriend.

 

Third, he reports a prior history of sexual activity while he was sleepwalking. Fourth, when he is awakened by [C.D.], he tells me he is confused and scared. Now I don't think he's in a position to know that there is a brief period of confusion that one expects upon being awakened from sleepwalking. And finally, he's got a personality test profile which, while it's not definitive, is consistent with the kinds of dynamics that can lead individuals you know, it's consistent with people who sleepwalk, it's not a manipulative, psychopathic kind of antisocial profile, it is more of a kind of neurotic, underlying anxiety and depression profile.

 

Dr. Cooke concluded, to a reasonable degree of psychological certainty, that defendant demonstrated "a lot of consistent factors" of sleepwalking during those incidents, and if he was sleepwalking, "he would not have acted in a knowing, purposeful or voluntary manner." He admitted, however, on cross-examination that he would expect a person who wakes up and finds himself in bed with a child one time would do something to keep it from happening again.

Defendant's mother, sisters, an ex-girlfriend, and his ex-wife all testified that they saw him doing things while sleeping that he did not remember when he awoke. His ex-girlfriend and ex-wife both testified that, on a few occasions, he had sex with them or had tried to persuade them to have sex, and then never remembered it the next morning. Defendant who testified on his own behalf, stated that he did not recall anything about the stories that his mother, sisters, ex-wife, or ex-girlfriend had told the jury about his sleepwalking, except their telling him at the time things happened.

Defendant testified that sometime in January 2001, he woke up, not knowing where he was. He could hear "voices in the background," and he "felt something around [his] arm . . . like a hand" pulling on it. He finally realized that he was in C.D.'s bed. She told him to get out, so he apologized, "told her [he] didn't know what was going on," and went back to his bedroom. He was dressed in sweat pants, shirt and socks. He usually slept naked, so he got undressed and went to sleep. At the time, defendant was having a lot of problems at work. His hours had been cut, and he had been passed over for a promotion. Also, after he met T.D. in December 1999, he began working three rotating shifts, so he sometimes did not even know what day it was. In the fall of 2001, defendant learned of his parents' marital problems and got "highly upset." Later that month, he woke up again in C.D.'s bed. "[P]retty much the same thing" had happened as the last time, but C.D. was more upset. In late 2001, or early 2002, his parents' marital difficulties heated up again, and in late January 2002, he woke up in C.D.'s bed for a third time. He was lying on his side with his arm around someone, and he felt that person grab his arm and heard a faint voice. When he realized where he was, he went back to his bedroom, was "highly embarrassed," and was "really upset this time."

After that incident, defendant decided to stop taking a caffeine pill at work to stay awake during the midnight shift, and "NyQuil to get to sleep at night." Also, he decided to stop waking the children for school, and he put an alarm clock in the hall. He testified that he did not know what else to do. He explained that it had never been easy to get C.D. out of bed in time for school, and he sometimes fell asleep on the edge of her bed for a minute or two if she persisted on not getting up in the morning. In fact, he often acted like her father, and once appeared on her behalf in a truancy matter. He felt close to C.D., and they often went out together, shopping at the mall or other places.

Defendant admitted telling Detective Cuff and Detective Santos that he "was expecting them," as he had been informed they were coming to his work. Also, he admitted saying that C.D. would not lie and was "a good kid." At the police station, he told Detective Cuff everything he recalled about the incidents. However, he could not remember if his hands had been down C.D.'s pants, if he had touched her vagina or buttocks, or if he had ejaculated. Defendant did not discount the possibility, since things happened when he was sleeping. Nevertheless, he denied ever intentionally touching C.D. in a sexual way and inappropriately tickling her. Defendant also testified that, on Dr. Cooke's recommendation, he had been seeing Dr. Dove Hammond for help, and Dr. Hammond had started him on medication and biotherapy.

In rebuttal, the State presented Dr. Mark Richard Pressman, Ph.D., a board-certified "sleep specialist" and Director of Sleep Medicine Services at Lankenau Hospital in Pennsylvania. He disagreed with Dr. Cooke's opinion, because within a reasonable degree of scientific certainty, "all the evidence points to [defendant] being awake . . . and aware" when he was in bed with C.D. He explained that it was not consistent with his experience that sleepwalkers do the same thing on three different occasions. They never repeat the same behavior, and "[e]ach sleepwalking episode is a brand new, spontaneous, random adventure." Also, sleepwalkers usually wake up by themselves and never immediately respond to someone talking to them. "[S]leepwalker[s] [don't] know where they are and they don't know what they're doing, they don't know who's in front of them. So to ask, can I, means that obviously they know where they are[,] they're aware of their surroundings and they know what the situation is." In fact, "[s]leepwalkers are extremely hard to arouse. Almost impossible. . . . [A]nd even more than that[,] if you actually grab a sleepwalker or you block a sleepwalker, chances are pretty high they're going to resist. You may get smacked."

Thus, he opined that defendant's actions were not consistent with sleepwalking, since C.D. had said that he responded to her when she spoke to him. The fact that defendant told C.D. he was sorry, he could go to jail, and not to tell her mother "shows an awareness of the situation. It shows [he] knew what [he] had done and also shows that [he] knew what the potential consequences were." It was "fast thinking" that "even someone who was awake would be hard pressed to do."

Finally, Dr. Pressman asserted that sleep deprivation or shift work does not cause or trigger sleepwalking. Instead, shift workers usually have stomach problems, because they do not eat at regular times. And, sleepwalking "is very easily treated" with medicine, and sleepwalkers can lock doors or install alarms to prevent those episodes.

I.

Defendant contends that the trial court erred by not granting his motion for a judgment of acquittal n.o.v. Specifically, defendant argues that his three convictions of endangering C.D.'s welfare must be vacated, since those crimes were based on the same set of facts, the same sexual conduct, as the related sexual offenses on which he was acquitted. He asserts this is not a matter of inconsistent verdicts under Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), or United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). Instead, he argues either (1) the jury had to have convicted him improperly on a theory of culpability that was not charged in the indictment or presented in the judge's final instructions, or (2) criminal sexual contact is a predicate crime to endangering the welfare of a child. Defendant's arguments are based on speculation, and they lack merit.

Rule 3:18-2 states:

If the jury returns a verdict of guilty . . . a motion for judgment of acquittal may be made . . . . The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal . . . .

 

In reviewing such a motion,

the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

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

 

The court should not be concerned "with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). We apply the same standard to decide if the judge should have granted the judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). Thus, a court should grant a motion to acquit if it determines that the evidence fails to establish any of the stated elements of an offense. See, e.g., State v. Zeidell, 299 N.J. Super. 613, 622 (App. Div. 1997) (acquittal on sexual assault because evidence only established lewdness), rev'd on other grounds, 154 N.J. 417 (1998); State v. Smalls, 310 N.J. Super. 285 (App. Div. 1998) (pick-pocketing crime did not support robbery conviction in absence of proof of force or threat).

The indictment accused defendant of inappropriately touching C.D. on four separate occasions. Three occasions are at issue here.2 A defendant is guilty of "criminal sexual contact" if he or she commits an act of "sexual contact" under any of the circumstances set forth in N.J.S.A. 2C:14-2(c)(1) to (4). N.J.S.A. 2C:14-3(b). "Sexual contact" is defined in N.J.S.A. 2C:14-1(d) as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(e) defines "intimate parts" as "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person."

N.J.S.A. 2C:24-4(a) prohibits a defendant, who has a legal duty for, or who has assumed responsibility for, the care of a child, from endangering the welfare of that child by: (1) "engag[ing] in sexual conduct which would impair or debauch the morals of the child" or (2) "caus[ing] the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1, -3, and -8.21]." "Sexual conduct" is not defined by statute. Instead, the definition of "[p]rohibited sexual act" under N.J.S.A. 2C:24-4(b) includes: "Any act of sexual penetration or sexual contact as defined in [N.J.S.A.] 2C:14-1."

Defendant argues that the jury's irrationally inconsistent verdict occurred because it ignored the first prong of N.J.S.A. 2C:24-4(a) and convicted him under the second prong of failing to take protective measures to prevent future incidents with C.D. from occurring. We disagree.

As noted by the trial court, defendant was indicted only under the first prong of N.J.S.A. 2C:24-4(a), that is, he was charged with "having a legal duty for the care of or having assumed the responsibility for the care of [C.D.], . . . knowingly [engaging] in sexual conduct which would impair or debauch the morals of said child." Consistent with the charges in the indictment, the jury was instructed only with that first prong:

To find defendant guilty of this crime, the State must prove beyond a reasonable doubt these elements: (1) that [C.D.] was a child; (2) that defendant knowingly engaged in sexual conduct; (3) that defendant knew such conduct would impair or debauch the morals of the child; and (4) that defendant had a legal duty for the care of the child or had assumed the responsibility for the care of the child.

Furthermore, the verdict sheet only listed the first prong as a basis for conviction. Although we note the prosecutor presented evidence defendant failed to take preventative measures to protect C.D. from his sleepwalking abuses and even argued this in his summation, it "is wasteful of judicial resources to have appellate courts attempting to second-guess what may have transpired during jury deliberations." State v. Wilder, 193 N.J. 398, 416 (2008). "[T]he most basic assumption [is] that a jury follows the charges given to it by the court." Ibid. We decline the defendant's invitation to presume the jury considered an element not contained in the judge's instruction.

Defendant also argues that acquittals should be entered for his convictions of endangering C.D.'s welfare, because he was acquitted of the predicate crimes of criminal sexual contact. We agree with the trial court that "[A] jury can find a defendant guilty of endangering without finding him guilty of criminal sexual contact even if the alleged sexual conduct is the same as the alleged sexual contact." Citing State v. D.R., 109 N.J. 348 (1988), and State v. Miller, 108 N.J. 112 (1987), the court noted that convictions for sexual assault or criminal sexual contact and child endangerment by engaging in sexual conduct do not merge, even if the convictions are based on precisely the same underlying conduct, providing that defendant has the requisite relationship to the victim. The court elaborated:

"[T]he offenses are different because the crime of endangering the welfare of a child is aimed not only at specific conduct but also at the violation of the duty that a parent [or one who assumes responsibility for a child] owes to a child." Miller, supra, 108 N.J. at 118-119. "A conviction for endangerment requires, in addition to evidence of sexual acts, proof of a parental or custodial relationship." Id. at 120. "In addition, the 'consequences of the criminal standards transgressed' were not the same." Id. Endangering the welfare of a child "is also directed at the defendant's violation of his parental duty [or his assumed duty while acting in loco parentis]." Id. at 121. Although both Miller and D.R. involved sexual assault and endangering the welfare of a child, the same reasoning applies with equal force to non-merger of convictions for criminal sexual conduct and endangering the welfare of a child. If convictions for criminal sexual conduct and endangering the welfare of a child do not merge, the converse is also true; jury acquittal of the sexual assault and criminal sexual contact counts does not, in and of itself, require acquittal of the endangering the welfare of a child counts, provided there was sufficient evidence to prove the required elements beyond a reasonable doubt.

 

For a conviction under N.J.S.A. 2C:24-4(a), there must be proof that the criminal sexual contact goes beyond the mere touching under N.J.S.A. 2C:14-1(d), that is, it must be such as "would impair or debauch the morals" of the child subjected to such conduct.

In State v. Hackett, 166 N.J. 66 (2001), the Supreme Court addressed whether a child's observation of the defendant's nudity was sufficient to convict him of endangerment under N.J.S.A. 2C:24-4(a). The Court focused on legislative intent and the language of the statute and held, "[p]roof of actual impairing or debauching of the victims' morals is not required. The legislative language prohibits any sexual conduct that would result in the impairing or debauching of an average child in the community." Id. at 80. In other words, the "question is not whether the victims of the alleged endangering actually had their morals impaired or debauched, but whether the actor's 'sexual conduct' was conduct that likely would impair or debauch the morals of a child in the community." Id. at 83. Therefore, even where the same conduct forms the basis for several offenses, merger may not be appropriate where additional or separate proof of a statutory element is required for one or where there exists a legislative intent "to fractionalize the offense." Miller, supra, 108 N.J. at 119-21. Similarly, an acquittal on counts alleging specific sexual conduct does not inevitably compel an acquittal on related endangerment charges alleging the same sexual conduct.

Despite defendant's argument otherwise, the court correctly concluded that defendant's convictions could be sustained because "[a] jury may render inconsistent verdicts so long as there exists a sufficient basis in the record to support the charge on which the defendant is convicted." In State v. Banko, 182 N.J. 44, 54-55 (2004), our Supreme Court reaffirmed that the Dunn/Powell rule3 controls inconsistent verdicts in this State, stating:

An inconsistent verdict may be the product of jury nullification. We permit inconsistent verdicts to be returned by a jury because it is beyond our power to prevent them. State v. Ragland, 105 N.J. 189, 204-05 (1986) (acknowledging jury's nullification power that exists "by virtue of the finding of a verdict of acquittal"); see also State v. Hunt, 115 N.J. 330, 400-01 (1989) (Handler, J., dissenting) (noting that jury nullification is not subject to review or to reversal). We do not speculate why a jury acquits. We accept inconsistent verdicts and not only when a jury's action benefits a defendant. Such verdicts are permitted "normally . . . 'so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" State v. Petties, 139 N.J. 310, 319 (1995) (quoting State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992)); see also State v. Ingenito, 87 N.J. 204, 211-12 (1981) (accepting, before Powell, "inconsistent verdicts that accrue to the benefit of a defendant").

The trial court held, as do we, that sufficient credible evidence within the record exists upon which the jury could have found each of the required elements of endangering the welfare of C.D. beyond a reasonable doubt and that defendant was not sleepwalking during the second, third, and fourth incidents.

II.

Defendant argues the prosecutor made improper comments during his opening, cross-examination, and summation, which deprived him of a fair trial. Defendant first challenges a comment about C.D.'s cousin made at the beginning of the prosecutor's opening statement. After recounting the three times C.D. found defendant in her bed, the prosecutor told the jury they would hear from C.D.'s cousin, S., because C.D. had told her what happened. However, without any explanation, S. did not appear at trial, even though the prosecutor had told the judge at sidebar after the openings that she would probably be his first witness. Defendant argues that the prosecutor's comment, together with S.'s failure to appear, led the jury to reach a result it might not have otherwise, as any allegation that C.D. told multiple witnesses about the incidents "bolster[ed]" the victim's credibility.

Since defendant failed to object to this comment at trial, we review the record for plain error. R. 2:10-2.

In evaluating claims of prosecutorial misconduct and plain error the fundamental question [this court] must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. If the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required.

 

[State v. Walden, 370 N.J. Super. 549, 562 (App. Div.) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)), certif. denied, 182 N.J. 148 (2004).]

"A prosecutor's opening statement should provide an outline or roadmap of the State's case." State v. Torres, 328 N.J. Super. 77, 95 (App. Div. 2000). The prosecutor may state only those facts that are intended to be proved in good faith by competent evidence. State v. Hipplewith, 33 N.J. 300, 309 (1960). Failure to meet those expectations is not cause for reversal "unless allegations in the opening statement are completely unsupported by the evidence and there is a showing of prejudice to the defendant and bad faith by the prosecutor." Ibid.

Here, the prosecutor's comment did not give rise to prejudice and, there is no indication the comment was made in bad faith. The prosecutor stated that fresh complaint evidence would be proved to the jury, and defendant concedes T.D. provided such evidence. Fresh complaint evidence from S. would have been cumulative. Further, the court instructed the jury on fresh complaint evidence both after T.D. testified and in its charge, explaining such testimony could only be used to dispel any inference that C.D. had not complained, and not as evidence to prove the crimes or to bolster C.D.'s credibility. It is presumed that the jury followed the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007).

Defendant raises, for the first time on appeal, objections to the various cross-examination questions posed to him. He argues the prosecutor was "pitting" his veracity against Detective Cuff. During cross-examination, a prosecutor may not ask a witness, especially the defendant, whether the State's witnesses have lied during their testimony. State v. Bunch, 180 N.J. 534, 549 (2004); State v. T.C., 347 N.J. Super. 219, 237-38 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). Accord United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987). Nevertheless, based on a review of the record, we do not perceive plain error in this case.

Significantly, the prosecutor did not ask him if Detective Cuff was a liar, pit Detective Cuff's testimony against defendant's, or focus on the discrepancies between defendant's and Detective Cuff's testimony. The prosecutor instead concentrated on whether Detective Cuff's police report detailing defendant's interrogation was incorrect. We do not perceive that the prosecution in this case acted improperly in pointing out or asking about inconsistencies, as they were fair questions based on the evidence. See, e.g., Bunch, supra, 180 N.J. at 549 (improper to ask whether defendant "want[s] this jury to believe that everything that the officers came in here and testified to is untrue"); T.C., supra, 347 N.J. Super. at 238 (improper to ask "whether a particular witness was 'lying' when he or she described some action of defendant"); Green, supra, 318 N.J. Super. at 377-78 (improper to ask, "So when Detective Sergeant Chard testified today, he's not telling the truth; right?"). See also Richter, supra, 826 F.2d at 208 (improper to ask defendant "in a series of questions" whether officer "was either mistaken or lying").

In addition, defense counsel's failure to object during the prosecutor's cross-examination is indicative of an absence of prejudice in the prosecution's questioning. See T.C., supra, 347 N.J. Super. at 238 ("Defendant's failure to object suggests that h[is] counsel did not believe the conduct was prejudicial and also made it impossible for the court to take timely curative action to ameliorate any adverse effect from the improper questioning.").

Defendant next argues that the prosecutor's comments during summation, individually and collectively, deprived him of a fair trial, requiring reversal of his convictions. Prosecutors must confine their summations to "the facts shown by or reasonably to be inferred from the evidence." State v. Carter, 91 N.J. 86, 125 (1982). They also may respond to an issue or argument raised by defense counsel, since that is not considered beyond the evidence adduced at trial. State v. Wilson, 128 N.J. 233, 241 42 (1992); State v. Vasquez, 374 N.J. Super. 252, 260-61 (App. Div. 2005); State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001); State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). Indeed, prosecutors are afforded substantial latitude, and are expected to make vigorous and forceful closing arguments to juries. State v. Smith, 167 N.J. 158, 177 (2001); State v. Frost, 158 N.J. 76, 82 (1999).

Consequently, even when a prosecutor is guilty of misconduct, reversal of a defendant's conviction is not warranted unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009); State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Ramseur, 106 N.J. 123, 322 (1987). The reviewing court must consider the statements in the context of the entire trial, State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306, (2001), in addition to "the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 576 (citations omitted). We evaluate challenges that were not objected to by defense counsel at trial under the plain error standard whether they were "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004). The error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

Defendant asserts that the prosecutor improperly created a "theme" that defendant was a liar and that C.D. was the only one telling the truth. Defendant also argues the prosecutor conveyed to the jury his personal belief in defendant's guilt, and implied that the prosecutor possessed additional evidence not presented during the trial that could establish guilt. Defendant specifically objects to the following comments made during closing arguments:

I don't have any books to read to you. I don't have any . . . phrases, catch phrases or anything like that. All I can bring you is the truth and the truth is what you heard on the stand during the State's case.

 

. . . .

 

Watch out for red herrings. Watch out for attempts to distract you from the truth. Attempts to make you think of other things. Attempts to attack [C.D.]'s character because she did she tell her mother once? Did she tell her mother twice? Who cares? That man admits it. He was there. He admits it. So, whether she told her mother it was ten times or whether she told her the day after it happened or when she told us. The bottom line is he says himself that when she told the police he came in my room, he was she was telling the truth. Listen to the defendant. He's right.

 

The one honest thing he said in this whole case was that she was telling the truth when she said she woke up in bed with me and my arm was wrapped around her. So, who cares whether she told the police officer something else? If you want to call it a lie, go ahead. That's not a lie.

 

. . . .

 

When you heard [defense counsel] talking, when you heard questioning on the stand, watch for certain words that are trying to mislead, to change things, to characterize things not for the way they are, but the way someone wants you to think they are. Who cares if [C.D.] said it was nine times, ten times? Who cares if Dr. Pressman said, well, yeah, I believe it was ten times she told me? What difference does that make in his diagnosis? Absolutely nothing, but when you got nothing else to go on, I guess that's what you focus on. Something else. Don't look at that man behind the curtain and the first thing that everybody does is look over there. Okay? I just want you to keep that in mind as you review what you've heard and what you saw happen over the last couple of weeks.

 

If you want to know if [C.D.] was lying when she said that she woke up in bed and this guy's fondling her, ask him. That's the only person in the world who knows because as [defense counsel] said, there are only two witnesses and they both agree.

 

A prosecutor may not express a personal belief or opinion as to the truthfulness of a witness's testimony. State v. Marshall, 123 N.J. 1, 154 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). Nor may a prosecutor personally vouch for a witness or refer to evidence beyond the record to support a witness's credibility. State v. R.B., 183 N.J. 308, 337 (2005). However, he or she may argue that a witness is more credible based on the evidence. Walden, supra, 370 N.J. Super. at 560. Accordingly, we find nothing in the prosecutor's comments that suggests he possessed knowledge outside of the evidence presented that establishes defendant's guilt. Rather, he repeatedly emphasized that, in spite of any inconsistencies in the details, defendant had confirmed the essence of what C.D. had said.

Moreover, the prosecutor's comments were responding to defense counsel's summation, which centered on comparing defendant's and C.D.'s veracity, and which described C.D.'s testimony as: "Falsehoods. Due postures. Deceiving. Deceiving you. Lying." Upon review, we "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991).

Defendant also asserts that the prosecutor's telling the jury to disregard the inconsistencies in C.D.'s testimony diluted the State's burden of proof, since it obscured the importance of credibility determinations and suggested that the jury did not need to scrutinize the State's proofs on the elements of the crimes alleged. We reject that assertion, and we agree with the prosecutor's argument that it made no difference how many times C.D. told her mother of the abuse, because defendant admitted that on at least three occasions he found himself in C.D.'s bed.

Defendant asserts the prosecutor's comments belittled and ridiculed the defense by suggesting that it was setting up a smoke screen and had no substance. In context, the prosecutor's request for the jury to look at the evidence "[w]hen the smoke clears" is not egregious or unfair and did not have the capacity to bring about a result the jury might not otherwise have reached. Compare Timmendequas, supra, 161 N.J. at 589-90 (finding nothing objectionable about similar statements).

Next, defendant challenges as plain error the following argument:

When he's setting up his defense, when he's going to the doctor. No, he didn't go to Dr. Cooke for help. He went there because his lawyer sent him there and that's perfectly okay. I, as a lawyer, send people to doctors, too, to get evaluated. That's perfectly fine for [defense counsel] to send him, but he didn't go there because he's trying to help himself. He didn't go to Dr. Hammond because he was trying to help himself. He went there because his lawyer said I want you to be evaluated by this guy and that's perfectly normal, but that doesn't mean that Mr. Hutchinson is saying, I need help four years later, three years later.

He asserts that the prosecutor's remark about Dr. Hammond did not reflect the evidence presented in the record, since defendant had testified that Dr. Cooke had recommended Dr. Hammond, and that Dr. Hammond was helping him. Even if this statement is unsupported by evidence of the record, we cannot conclude that questioning defendant's motives in going to Dr. Hammond gives rise to plain error. Comment on such extraneous facts or influences hold little potential to deprive defendant of a fair trial. Again, defense counsel's failure to make a timely objection indicates he did not find the comments prejudicial at the time.

Defendant next argues various remarks by the prosecutor, referring to Johnny Cochran, from the O.J. Simpson trial, and the Brooklyn Bridge, demeaned him and defense counsel by suggesting they had "concocted" or "manufactured" a defense to obtain acquittals and win "at all costs." In their entirety, and in context, those comments were:

But the interesting thing is, did you notice Dr. Pressman knew ever single one of these guys? . . . But that's not what happened here. That's why I said to him after hours and hours of cross-examination on sleep sex and sleep eating, none of which are the sleepwalker kind of problem we have here. As I said, what is different about that because that's not the case here? This isn't a sleep sex case. . . . This is not a sleep sex case. This is not a sleep eating case. This is a sleepwalker case and I find that this man was not sleepwalking. It doesn't fit. In this case, if it doesn't fit you don't acquit, to quote Johnny Cochran.

 

. . . .

We heard a litany of witnesses, they're all lined up for you and they came in one after the other . . . because they're trying to help the case and say . . . he had amnesia about it. Well, think about it. If they said, I've told him about it in the morning, why were you mixing apples last night and he said, I don't remember . . . . And that means they confronted him with it and he said no one ever did. He doesn't remember anyone . . . wouldn't it time after time after time after time over your life and I think we heard a pretty big number of times as he did sleepwalking things and they confronted him with it [in] the morning, wouldn't he remember being confronted with it in the morning? He said, "No."

 

If you believe him, I've got a bridge I'll sell you, jack the price on it. There was never a mention of sleepwalking in this case by the defendant until the police showed up and then he said, I know why you're here and if he knew why they were coming, he knew he was in trouble and he had to start thinking, what am I going to do? He calculated this as a defense.

We are not convinced that the obtuse references to the O.J. Simpson trial belittled the defense team or its sleepwalking defense or that they were so inflammatory as to deprive defendant of a fair trial. See State v. Vaszorich, 13 N.J. 99, 119 ("every excursion outside the evidence will not necessarily vitiate a conviction"), cert. denied, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953). Similarly, the Brooklyn Bridge was a reference to the credibility of defendant's testimony regarding his recollection of being confronted by the people who had witnessed one of his sleepwalking events. State v. Smith, 27 N.J. 433, 460 (1958) (prosecutor "limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom").

Defendant points out that the jury, during deliberations, asked, "What did Dr. Cook[e] say about [defendant] trying to deceive him?" And, the judge instructed the members of the jury to rely on their collective recollection. Contrary to defendant's assertion, we do not find that this inquiry reflects misconduct on the part of the prosecution. Dr. Cooke, who testified on behalf of the defense, stated that he, much like Dr. Pressman, begins any evaluation of a sleepwalking case with initial skepticism, and he explained on cross-examination that defendant tended to deny or minimize any kind of emotion. It was not inappropriate for the prosecutor to question the totality of the sleepwalking defense. Moreover, the prosecutor's comments about defendant's visits with Drs. Cooke and Hammond were in response to defense counsel's assertions during his closing that Dr. Cooke had offered a detailed analysis and explanation, and was more reliable than Dr. Pressman, who defense counsel described as from "the Main Line" and who, he said, should have been more prepared.

Defendant also complains about two errors that were raised below. He first claims reversible error when the prosecutor referred to himself and defense counsel as "certified criminal trial attorney[s]," and told the jury that "[o]ther lawyers can refer cases to me . . . a specialist . . . and just like they have certifications in law, they have them in medicine." The prosecutor then compared attorney trial certification with Dr. Pressman's board certification and Dr. Cooke's lack of board certification. When defense counsel objected, the Judge charged the jury:

In this case, Dr. Gerald Cooke, a licensed clinical and forensic psychologist was called as an expert by the defendant and Dr. Mark Pressman, a licensed psychologist and sleep specialist was called as an expert by the State.

 

You are not bound by such expert's opinion, but you should consider each opinion and give it the weight to which you deem it is entitled. Whether that be great or slight or you may reject it. In examining each opinion, you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert. It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based, actually exists. The value or weight of the opinion of the expert is dependent upon and is no stronger than the facts on which it is based.

Defendant argues that the comments were "misleading and injected extraneous personal information into the trial," which prejudiced his right to a fair trial. Also, the prosecutor's references to Dr. Pressman's certification "had the effect of identifying the State's expert with the prosecutor's expertise in criminal advocacy."

We find the judge's instruction sufficient and presume the jury followed it. The prosecutor's point was to compare the qualifications of Dr. Pressman to Dr. Cooke, not to identify Dr. Pressman with counsel. We perceive no prejudice from the prosecutor's comments and certainly none that could have deprived defendant of a fair trial.

Defendant also claims reversible error from the following comments by the prosecutor comparing the demeanor of defendant and C.D.:

I told you why I think [C.D.] cried on the witness stand. I don't think she cried on cue like [defendant] obviously did. He forgot, I happened to have a transcript of the exact same question coming out and it said, "crying" in it and, by the way, I didn't see any tears either from the defendant. He just cracked just like he did the last time.

 

You know why? Because as Dr. Cooke says, he's making a deliberate attempt to manipulate the outcome. [C.D.] cried because she was being badgered, because she

was being yelled at for something that is meaningless.

 

In his charge, the judge instructed the jury that:

Regardless of what counsel said or I may have said recalling the evidence in this case, it is your recollection of the evidence that should guide you as the judges of facts. Arguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence. For example, during the summations in this case, attorneys may have offered their opinion about the evidence or their recollection of the evidence. It's your opinion and your recollection that counts, not what they say.

 

Although the attorneys may point out what the[y] think important in this case. You must rely solely upon your understanding and recollection of the evidence that was admitted during the trial. Whether or not the defendant has proven has been proven guilty beyond a reasonable doubt, is for you to determine based on all the evidence presented during the trial. Any comments by counsel are not controlling.

 

Defendant asserts that the prosecutor ridiculed him, leading to an unfair trial. He argues this unfairness was further magnified by the prosecutor's remarks that defendant had cried in the same place at his previous trial and that C.D. had not cried on cue.

We reject those assertions, and we are satisfied the judge's instructions were sufficient to quell any prejudice from the prosecutor's comments. Those comments were a direct response to defense counsel's own closing argument (1) that C.D. was fake crying, acting, and shielding her face like a mask during her testimony, and had not needed the same theatrics during her interview with the police or the prosecutors, and (2) that defendant was really just trying "to compose himself" because he had cried before. The sincerity of the witnesses was for the jurors to gauge.

III.

Defendant argues two specific comments by Dr. Pressman, the State's expert, deprived him of a fair trial. Although defendant unsuccessfully moved to strike Dr. Pressman's testimony as a net opinion, defendant did not object to these particular comments. We therefore review the comments for plain error. R. 2:10-2.

First, defendant complains he was prejudiced by the following colloquy between Dr. Pressman and the prosecutor:

Q. [Prosecutor] In your experience, is there a common reaction from someone who learns that he has done something inappropriate while sleepwalking?

 

A. [Dr. Pressman] In all the cases that I'm familiar with, initially they spent some time trying to put the facts back together. In other words they usually wake up in an unusual location. They might have had some suspicion that they had been sleepwalking or they had done something they shouldn't have but they're not sure because of course they don't have the memory, so they may ask questions, actually investigate it a little bit. Try and put it together.

 

And once they come to the conclusion that they probably did something wrong, they're usually extremely remorseful and they usually take immediate steps.

 

In the one case that I testified for the defense, after he had realized that he probably had sexually molested this person[,] he called his wife, called his minister and then he called the police on himself. And then an hour later he left the house and to my knowledge he's never gone back.

 

Second, defendant complains about the following colloquy that occurred after Dr. Pressman had declared that "a general standard of practice . . . for board certified sleep specialists who testify in court cases" did not require him to actually interview defendant and opined, with a reasonable degree of scientific certainty and probability in his field, that "all the evidence" points to defendant being "awake and aware" during the three incidents:

Q. [Prosecutor] Do you have an opinion as to, from everything you've reviewed by the way, do you evaluate a legal case like this differently than when you're evaluating a patient?

 

A. [Dr. Pressman] Oh, much different.

 

Q. How is it different?

 

A. Well I think that in legal cases, even when I'm doing the defense side, have to be very careful about what the defendant says.

 

Obviously a patient who comes to my office has nothing to gain except for hopefully a good diagnosis and treatment of a sleep disorder.

 

A defendant on the other hand if it's found that he's sleepwalking, will you know, be acquitted and walk away free. So they have a lot to gain so I have to say that even when I'm on the defense side I'm very suspicious of what the defendant's telling me whether they're giving me all the history or whether they're trying to steer me, you know, in a direction that would be to their benefit.

 

Defendant argues Dr. Pressman's comments expressed the opinion that defendant was not credible and guilty as charged. He contends the statements inflamed the jury by: (1) implying that defendant was a bad person, since he had not called T.D. or his religious leader after waking up in C.D.'s bed; (2) undermining defendant's right against self-incrimination, since he had not voluntarily contacted the police and reported his own behavior; (3) implying that defendant had an affirmative obligation to move out of the house to protect C.D., which diluted the State's burden of proof; and (4) implying that defendant, like all other accused offenders claiming innocence due to sleepwalking, had probably lied during his interview with the defense expert. Defendant also argues the court erred because the judge had an obligation, as gatekeeper, to exclude sua sponte all of this prejudicial testimony or give a curative instruction. We reject these contentions.

Expert testimony is admissible if: "(1) the intended testimony concerns a subject matter beyond the ken of an average juror; (2) the field is at a state of the art such that an expert's testimony would be reliable; and (3) the witness has expertise sufficient to offer the intended testimony." State v. Reeds, 197 N.J. 280, 290 (2009). An expert may not express a direct opinion that a defendant is guilty of the crime charged. Id. at 292-93. However, the fact that the testimony may embrace the ultimate fact issue in dispute does not render it inadmissible. Ibid. See also N.J.R.E. 704. The credibility of witnesses, especially expert, is exclusively for the jury to decide. State v. Vandeweaghe, 177 N.J. 229, 239 (2003).

When viewed in isolation these comments give the appearance of impropriety. However, Dr. Pressman never actually expressed a direct opinion of defendant's guilt. Instead, in both instances, Dr. Pressman was describing the traits consistent with sleepwalking and why Dr. Cooke's opinion could be flawed. Dr. Pressman never opined that either defendant or Dr. Cooke had lied on the stand.

Finally, contrary to defendant's argument, we disagree a trial judge has a "gatekeeper" role on every question posed to a testifying expert witness. The trial court's "gatekeeper function" requires it to determine "'whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be.'" State v. Miraballes, 392 N.J. Super. 342, 361 (App. Div.) (quoting State v. Nesbitt, 185 N.J. 504, 514 (2006)), certif. denied, 192 N.J. 75 (2007). "Consistent with Evidence Rule 702, a trial court must be satisfied that the expert's knowledge and experience is reasonably required to inform the jury on a matter that may be beyond the jurors' ken and will help jurors understand the evidence or determine a fact in issue." Nesbitt, supra, 185 N.J. at 514. The court appropriately discharged its gatekeeper function.

IV.

We reject defendant's argument that the trial court erred either (1) by not granting a judgment of acquittal n.o.v., sua sponte, on count fourteen, second-degree endangering the welfare of a child on or about January 15, 2002; or (2) by not granting defendant's motion for a new trial in the interest of justice. Defendant's arguments related specifically to his conviction of count fourteen, which read:

[Defendant] on or about January 15, 2002, . . . having a legal duty for the care of or having assumed responsibility for the care of C.D., born January 15, 1987, knowingly did engage in sexual conduct which would impair or debauch the morals of the child, contrary to the provisions of N.J.S.A. 2C:24-4[(a)] . . . .

 

Defendant argues that the State did not produce any evidence, independent of his own statement, to prove that he committed an act of child endangerment against C.D. "on or about January 15, 2002." In the court's supplemental opinion, it was noted that defendant "did not move for judgment of acquittal pursuant to R[ule] 3:18-1 as to any of the fourteen counts of the indictment at the close of the State's case or at the conclusion of the testimony on the basis that the evidence was insufficient to warrant a conviction." Nevertheless, the court concluded the evidence was:

more than sufficient . . . for the jury to find that the State had proven each of the required elements of endangering the welfare of a child beyond a reasonable doubt. The evidence was likewise more than sufficient for the jury to find that the State had proven beyond a reasonable doubt that defendant was not sleepwalking during the second, third and fourth incidents.

 

In State v. Reddish, 181 N.J. 553, 617 (2004) (quoting State v. Lucas, 30 N.J. 37, 56 (1959)), our Supreme Court reaffirmed that a defendant's confession alone is insufficient to establish guilt beyond a reasonable doubt: "[T]he State must 'introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury.'" Nevertheless, judgments of acquittal should not be granted on these grounds if "the State produces 'any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy.'" Ibid. (quoting Lucas, supra, 30 N.J. at 62).

Upon review of the record here, we are satisfied the State presented additional evidence beyond defendant's own confession that he was lying in C.D.'s bed with his arm around her in January 2002. For instance, although C.D. did not testify to specific abuses on or about January 15, 2002, she asserted that defendant engaged in abusive conduct on many occasions from 2001 to 2002. We recognize, in cases involving child victims of sexual assaults, that children "cannot recall precise dates or even approximate times the way a normal adult can." State in the Interest of K.A.W., 104 N.J. 112, 118 (1986). Thus, while the State should try to narrow the time frame of the occurrence, "the precise date on which the offense of sexual assault occurs is not a legal constituent of the crime." Id. at 120. See State v. Davis, 6 N.J. Super. 162, 163-64 (App. Div. 1950) (defendant not entitled to have charge confined to a particular day). Thus, failure to prove the specific date of the sexual abuse in count fourteen is not fatal to the State's case against defendant. Accordingly, the court did not err by failing to enter a judgment of acquittal, sua sponte, on count fourteen.

Defendant also argues that the court erred by denying his motion for a new trial, asserting that the State failed to present sufficient evidence to establish under count fourteen that any crime occurred in January 2002.

Rule 3:20-1 provides:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

 

An appellate court must determine whether a jury could have rationally found that the elements of the crime were presented beyond a reasonable doubt. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Where the jury reaches a verdict based on witness credibility, such a verdict must be upheld absent clear evidence of mistake or prejudice. State v. Haines, 20 N.J. 438, 446-47 (1956); Smith, supra, 262 N.J. Super. at 512. A jury is free to accept or reject the testimony of a witness based on credibility. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

In its supplemental decision, the trial court held that a new trial was not required in the interests of justice because the jury's verdict "was not against the weight of the evidence, particularly giving due regard to the opportunity of the jury to pass upon the credibility of the witnesses. Moreover, defendant has not clearly and convincingly shown that there was a manifest denial of justice under the law." For substantially the same reasons, we detect no error in the court's denial of defendant's motion for acquittal n.o.v. or in its denial of the motion for a new trial.

V.

Defendant argues he was denied a fair trial when the judge failed to give the jury Model Jury Charge (Criminal), "Final Charge: Further Jury Deliberations" (May 1994) (MJC), and refused to order special interrogatories of the jurors after the verdict. After the deliberations began at approximately 1:30 p.m., the jury sent several questions to the court concerning the testimony of various witnesses. Thereafter, the jury indicated it had reached a verdict; however, when the jury reentered the courtroom, the foreperson told the court "[i]t looks like a hung jury."

The judge noted the jury had only been deliberating for "about three hours, taking into account the breaks, the smoke breaks." He therefore ended deliberations for the day and instructed the jury to return in the morning "so that we can determine whether or not you're able to reach a unanimous verdict." After the jury left the courtroom, the judge told the attorneys that the next day he would "stop anything else if the jury has any further questions, or if they're able to reach a verdict, or if they're not able to reach a verdict. We'll deal with it at that point." The jury reached an unanimous verdict the next day without the judge reading any instructions. Neither side asked the judge to read the MJC, and defense counsel did not object to the absence of the charge.

Defendant now argues a new trial is warranted because the court did not read the MJC when the foreperson announced a deadlock. Specifically, defendant argues because the judge failed to ask the jury if it was truly deadlocked, he could not have made an informed decision on whether to charge the jury with the MJC. Further, defendant asserts that the judge's actual comments coupled with the fact that he never gave the MJC coerced the jurors to the point that they must have compromised their positions in order to render unanimous guilty convictions on the three endangering charges and acquittals on the greater sexual crimes.

The trial court rejected these arguments on defendant's post-trial motion. In its supplemental opinion, the court added:

[When the jury initially said it had reached a verdict, i]t was then approximately 4:45 p.m. at the end of a very long day, during which the jury heard lengthy closing arguments and extensive instructions and final charges. . . . Without reading the model . . . charge the [c]ourt advised the jury that since it had only been deliberating for such a short time after such a long trial, and given the lateness of the day, that it would be discharged for the day and come back the next morning to continue its deliberations. The jury did not react or show frustration when advised to continue its deliberations the next morning. Within a few hours the next morning the jury reached its verdict.

 

The court further explained that the situation was "entirely distinguishable" from State v. Czachor, 82 N.J. 392 (1980), where the jury indicated it was hopelessly deadlocked after protracted deliberations. Here, the jury never indicated that it was hopeless or even definitely deadlocked. "A mere three hours of deliberations after a two-week trial hardly qualifies as reasonable in a case involving four separate incidents, fourteen charges, and a complex sleepwalking defense. At that point, the jury had been deliberating for less time than the combined length of the closings and jury instructions." As the trial court observed:

Even more important, the [c]ourt did not indicate to the jury that it was its duty to reach a verdict. The [c]ourt did not exert pressure on the jury to reach a verdict. The [c]ourt did not cast indirectly on the jury a personal responsibility and sense of guilt for the impasse by reference to expense and waste of mistrial, need for retrial, and cost and expense of new trial. The [c]ourt did not impair or interfere with the independent thinking of the members of the jury. The jurors were not forcefully admonished to come to an agreement. The [c]ourt's statements to the jury were not coercive and did not impede jurors from deliberating objectively, freely and with an untrammeled mind. Consequently, defendant's rights were not violated and a new trial is not required.

Before declaring a deadlock, a trial judge has the discretion to require a jury to deliberate for a reasonable period of time. State v. Figueroa, 190 N.J. 219, 221, 235 (2007); Czachor, supra, 82 N.J. at 407. "What constitutes a reasonable amount of time is influenced by the length of the trial and the complexity" of the issues. State v. Hightower, 146 N.J. 239, 258 (1996).

It is clear from the record before us that the foreperson never indicated an actual deadlock such that a unanimous verdict would be almost impossible on the charges. The foreperson declared only that it "look[ed] like a hung jury." Also, we find no error in the judge's failing, at that juncture, to delve further into the foreperson's declaration, since the jury had been deliberating for only a few hours and the counts were numerous. While trial courts generally should ask a deadlocked jury if further deliberations will result in a verdict, "it is not always necessary . . . to do so." Figueroa, supra, 190 N.J. at 240.

We perceive no abuse of discretion or coercion of the jurors by not charging the MJC or by asking them to return for more deliberations the next day.

Defendant also argues that a new trial is warranted because the court improperly denied his request to order "special interrogatories" of the jurors, notwithstanding the verdict, to determine whether they had found that he had been sleepwalking as to counts eight, eleven, and fourteen.

After the jury returned its verdict and the jurors were polled individually as to "whether their verdict was the same as announced by the foreperson," defendant asked the judge to order "special interrogatories" before the jury was discharged, specifically to uncover what facts they had used to convict defendant. Defendant argues since he was acquitted of more serious sexual crimes, the jury had to have convicted him "of something other than sexual conduct" when they found him guilty of the endangering crimes. The prosecutor, however, argued "that it [made] perfect sense" that the jurors had convicted defendant by finding that he had "knowingly left [C.D.] in a situation of danger, because he did nothing to stop it."

The judge denied defendant's request for special interrogatories without explanation. He noted later that "to date the defendant had not proffered any such specific interrogatories that it [sic] claims should have been used." And in his supplemental opinion, he declared that "[t]he offenses charged did not require conviction of any predicate offenses and would not have merged had defendant been convicted of any additional counts. Moreover, special post-verdict jury interrogatories were not necessary to explain the jury's verdict."

Defendant relies on the use of special interrogatories and special verdicts in cases applying Rule 3:19-1(b), which states:

A written verdict sheet shall be submitted to the jury in conjunction with a general verdict to facilitate the determination of the grade of the offense . . . or otherwise simplify the determination of a verdict when multiple charges are submitted to the jury. A written verdict sheet shall include the factual predicate for an enhanced sentence or the existence of a fact relevant to sentencing unless that factual predicate or fact is an element of the offense. . . .

Special interrogatories are generally disfavored, but not prohibited. State v. M.L., 253 N.J. Super. 13, 26-27 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). Our Supreme Court has approved "[s]pecial verdict sheets that list only the charges and lesser-included offenses under an indictment, and do not list the elements of the offenses." State v. Diaz, 144 N.J. 628, 644 (1996). "The singular vice of special interrogatories, particularly in a criminal trial, is their potential for destroying the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences." State v. Simon, 79 N.J. 191, 199-200 (1979).

Defendant, however, did not request that a verdict sheet with special interrogatories be given to the jury prior to its deliberations, and he does not argue that the judge committed plain error by failing to submit interrogatories with the verdict sheet. Instead, as the State emphasizes, defendant claims, post-verdict, that the judge erred by: (1) not giving the jury a new sheet with interrogatories asking about the factual basis of its verdict, especially as to culpability on its guilty convictions; or (2) not conducting further in-court examination about what happened in the deliberation room.

The "general rule" is "that evidence of expressions or arguments of jurors made during their deliberations may not be used to impeach the verdict." State v. Athorn, 46 N.J. 247, 252, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966). "The secrecy surrounding jury deliberations is necessary not only to prevent the unsettling of verdicts after they have been recorded, but also as an aid to the deliberative process itself." Id. at 251. Although commonly arising in cases when defendants want to call back discharged jurors for post-verdict interrogation, the inquiry into the events surrounding the jury's decision is only permitted where an initial showing is independently made that misconduct occurred thereby tainting the verdict. State v. LaFera, 42 N.J. 97, 106-08 (1964). Stated differently, interrogating jurors after a verdict "should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." Athorn, supra, 46 N.J. at 250.

Here, defendant has not met that threshold. "A court should not investigate the thought processes which induced a particular juror to join in a verdict." State v. Young, 181 N.J. Super. 463, 470 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982). Accordingly, we do not find error or abuse of discretion in the court's refusal to grant the request for post-verdict juror interrogatories.

VI.

A.

Defendant contends the court erred by denying his pre-trial motions to suppress his custodial statements and to conduct a taint hearing to limit admission of C.D.'s statements.

In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966), the United States Supreme Court held that a person may not be subjected to custodial interrogation by the police unless he or she is apprised of certain rights. The purpose of Miranda is to ensure that a person is advised of and actually understands those rights. Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d 1098, 1100 (2010).

In New Jersey, "an involuntary statement is inadmissible for any purpose," State v. Pillar, 359 N.J. Super. 249, 265 (App. Div.), certif. denied, 177 N.J. 572 (2003), and the State bears the burden of proving a voluntary waiver beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, we look at the "totality of circumstances." Ibid. The factors considered are: (1) the defendant's age, education and intelligence; (2) the advice given about his or her constitutional rights; (3) the length of the detention; (4) whether the questioning was repeated or prolonged; and (5) whether physical punishment or mental exhaustion was involved. Ibid. See State v. Dispoto, 189 N.J. 108, 124-25 (2007) (noting "fact-based assessments" are appropriate when considering totality of circumstances, and deciding whether defendant voluntarily waived his rights).

On appeal we consider whether the trial court's findings were based on sufficient, substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). If the findings are supported by such evidence, the court's ruling should not be disturbed. Locurto, supra, 157 N.J. at 472; State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). This is because the motion court had the opportunity to observe the demeanor of the witnesses and to develop a feel for the case. Smith, supra, 374 N.J. Super. at 430. The ultimate question of voluntariness, however, is one of law. Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405, 411 (1985); Pillar, supra, 359 N.J. Super. at 268.

At the suppression hearing, Detective Cuff testified that after interviewing C.D. and T.D. on the morning of March 22, 2002, he and Detective Santos drove to defendant's workplace. Dressed in plain clothes, they waited in the main office while a supervisor summoned defendant. Upon seeing Detective Cuff, whom he knew, defendant immediately said, "I've been expecting you guys." Detective Cuff "[a]sked" him to "accompany us to our car," or "to accompany us to City Hall [site of the police station]." Detective Cuff considered defendant "in custody" at this point, but never told him that he was being arrested. He "was saving [defendant] the embarrassment of this at his job . . . so [he] just asked him to accompany [them] to City Hall."

Defendant followed the officers to the car. He was not handcuffed and no conversation occurred. He got into the back seat, the officers sat in the front, and Detective Santos read defendant his Miranda rights from a preprinted card. They did not tell defendant he was under arrest. Defendant did not ask questions. He "acknowledged that he understood his rights and signed a Miranda card." Detective Cuff signed the card as a witness.

While they drove to City Hall, Detective Cuff asked defendant what he meant when he said he was expecting them. Defendant stated "the thing with [C.D.]." Detective Cuff told defendant they "had some things to talk about," and that he had spoken to C.D. Defendant replied "that [C.D.] was a good girl," and then talked about "the problems his mother and father were having, his personal life, his problems at work, general conversation on the way back to City Hall." Detective Cuff did not question him about the allegations, and defendant did not ask for an attorney or refuse to speak.

Detective Cuff took defendant to his office, but never handcuffed him. He also never told defendant that he was arrested, "assum[ing] it would be common knowledge," and because defendant had been expecting them. Detective Cuff again asked defendant what he meant by "expecting" them, and defendant said that C.D. was a good girl and would not lie. Then, they discussed the incidents with defendant. He explained that he remembered something happening three times. Detective Cuff asked him to explain and defendant stated that sometimes he does things in his sleep and does not even realize it. Detective Cuff asked for further explanation and defendant admitted: (1) that he woke up once to C.D. "pull[ing] his hand out of her pants"; (2) that "he rubbed her butt and vagina with his hand but he never inserted his finger"; and (3) that "at least on one occasion he ejaculated on her." According to Detective Cuff, defendant was "[o]penly talking" and "regretful of what he had done." Detective Cuff did not see any sign or indication that defendant hesitated or wished to stop the interrogation.

Detective Cuff wrote down exactly what defendant said during the forty-five-minute interrogation and asked him to make a tape-recorded statement. Defendant "wanted to discuss it with his mother . . . and asked if he could call her." Detective Cuff agreed. After the call, defendant requested an attorney and refused to make a taped statement. The interrogation stopped.

Detective Santos, who had not participated in the interrogation, corroborated Detective Cuff's account, except for two details. First, according to Detective Santos, Detective Cuff told defendant at his workplace only "that he wanted to speak with him and escorted him out to the police car." And second, Detective Cuff told defendant either in that office or at the car, that "he was going to be . . . arrested for the sexual assault."

The court denied defendant's motion to suppress his statements in the car and in Detective Cuff's office.4 The judge found the police testimony to be credible. Also, he found that there was "no question" that defendant was "in custody from the moment he was picked up at his place of employment." The court was "convinced by the totality of the circumstances," finding beyond a reasonable doubt that all of defendant's statements were made after he was in custody and after he had "knowingly, intelligently, and voluntarily waived his [Miranda] rights."

Defendant argues that the judge misapplied the governing principles of law under Miranda, as construed by in State v. A.G.D., 178 N.J. 56 (2003), and State v. Nyhammer, 197 N.J. 383, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Based on these decisions, defendant argues Detective Cuff was required to tell defendant that he was a suspect and in custody before he let defendant into the police car, read him Miranda warnings, asked him to sign the waiver form, and took his statement. Since Detective Cuff never apprised him of his status as a suspect, defendant argues his statements should have been excluded.

In A.G.D., supra, 178 N.J. at 56, the Court considered a scenario in which the police had obtained a warrant to arrest the defendant for sexually abusing his daughter. Four days later, a detective went to the defendant's house and told him that the police wanted to discuss allegations of sexual abuse that had been asserted against him. Id. at 59. The detective did not tell the defendant of the existence of the arrest warrant, and he did not tell him that he was under arrest. Ibid. The defendant cooperated and accompanied the detective to the police station, where, after he was issued Miranda warnings, he gave an incriminating statement. Ibid.

The Court held that the statements had to be suppressed because the defendant's waiver of his right to remain silent, under the circumstances, was not knowing, intelligent, and voluntary. Id. at 68. The police had extracted the statement "[w]ithout advising the suspect of his true status when he does not otherwise know it." Ibid. Thus, the State could not sustain its burden that the suspect had exercised an informed waiver of rights, regardless of other factors that might support the admission of his confession. Ibid. The Court made clear its holding was "not to be construed as altering existing case law in respect of the manner in which the police conduct interrogations other than imposing the basic requirement to inform an interrogatee that a criminal complaint has been filed or issued." Id. at 68-69.

In Nyhammer, supra, 197 N.J. at 389, the police contacted the defendant by telephone and asked him to come down to the police station to discuss allegations that his uncle had sexually abused his grandniece. The detective, however, never told the defendant that the child had made accusations of abuse not only against the uncle but also against the defendant himself. At the time of the police's call, no arrest warrant or criminal complaint against the defendant had been issued. Id. at 389-90. The defendant complied and went to the police station, where he was given Miranda warnings and interrogated. At that point, the police told him about the accusations that the child had made against him, whereupon he admitted to inappropriate contact with her. Id. at 391.

The Court held that the defendant's custodial statement was admissible, even though the police had not told him that he was a suspect when they brought him in for questioning. Id. at 405. It recognized the subjective nature of the label "suspect," observing that "[a] suspect to one police officer may be a person of interest to another officer." Id. at 405. It also contrasted "suspect" status to "the issuance of a criminal complaint and arrest warrant by a judge," which is "an objectively verifiable and distinctive step." Id. at 404. "[T]he defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime." Id. at 406. Moreover, the Court was satisfied that the defendant had a clear understanding of his rights and that coercive tactics by the police were absent "throughout the interrogation." Id. at 409.

Here, defendant does not offer any evidence that an arrest warrant or criminal complaint had been issued before the police appeared at his workplace. The police, therefore, did not mislead defendant. Also, defendant's own statement about expecting the police shows he plainly knew why they had come to see him. Thus, the circumstances surrounding the Court's decision in A.G.D. are distinguishable from the circumstances here. Moreover, we find it was unnecessary for the police to have explicitly validated defendant's own assumptions that he was a suspect. Under Nyhammer, the status of the interviewee as a suspect is only one of many factors to be analyzed for voluntariness, and is not a bright line for exclusion of custodial statements.

Finally, defendant claims that his education and lower-than-average intellect are aspects that the judge should have factored into his analysis of the totality of the circumstances. However, the court could not have considered these factors at the suppression hearing, because the information that defendant took special education courses and has a close-to-below average I.Q. was not presented until trial.

B.

Defendant also argues that the court erred by not holding a taint hearing. In State v. Michaels, 136 N.J. 299, 320 (1994), the Court held that because investigators had used suggestive and coercive interviewing techniques to elicit statements from young children (nursery school students) accusing the defendant (their teacher) of criminal sexual acts, a pretrial taint hearing conducted under N.J.R.E. 104(a) was essential to test the reliability of those statements and any anticipated trial testimony by the minors. "The basic issue to be addressed at such a pretrial hearing is whether the pretrial events, the investigatory interviews and interrogations, were so suggestive that they give rise to a substantial likelihood of irreparably mistaken or false recollection of material facts bearing on defendant's guilt." Ibid.

The defendant has the initial burden of triggering the hearing, and must show "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Ibid. Such practices of unreliability may include: "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions[.]" Id. at 321. Once there is sufficient evidence to justify the hearing, the burden shifts to the State to prove, by clear and convincing evidence, that the proffered statements are reliable. Ibid. If it determines that a child's statement or testimony, or some portion thereof, retains sufficient reliability for admission at trial, then it is for the jury to determine its probative worth and to assign the weight to be given to it without reference to the trial judge's ruling. Id. at 323. Absent an abuse of discretion, an appellate court will not reverse a court's refusal to hold a pretrial hearing because the defendant did not meet the threshold showing. See, e.g., State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985).

The following facts were alleged at the hearing to determine if a taint hearing was justified5:

C.D., her mother, and at least two other children were living in the home of the defendant at the time of the alleged incidents. In February 2002, C.D., a Jehovah's Witness, was attending a religious service at which one of the Elders, [], gave a sermon about the culpability a person has if they know someone is sinning and fails to report it. At the close of this service, C.D. approached [the] Elder [] to inform him that the Defendant had been touching her and at some point also told another member of the group, Brother []. A few days later, C.D. disclosed the alleged sexual contact to her mother because [the] Elder [] had been trying to contact C.D. to talk to her and her mother wanted to know why. At this point, C.D.'s mother and the children moved out of Defendant's house.[6]

 

Initially, [the] Elder [] told C.D.'s mother that he would take care of the situation and provided the mother with information on the symptomatolgy of a child molester during a counseling session. Immediately following the move-out, the Defendant contacted C.D.'s mother twice to apologize and also left an apology note at her former residence. Thereafter, C.D.'s mother took her to the .. . Police Station to report the incidents. At that time, two Detectives interviewed C.D. The Defendant was arrested shortly thereafter.

 

The judge denied defendant's motion for the pretrial hearing by first noting that cases granting taint hearings "have generally involved victims either under the age of 11 or a child age 13 who was developmentally disabled." See State v. Smith, 158 N.J. 376, 378 (1999) (age eight); State v. D.G., 157 N.J. 112, 115 (1999) (age eight); Michaels, supra, 136 N.J. at 304 (ages three to five); State v. Krivacska, 341 N.J. Super. 1, 13 (App. Div.) (developmentally disabled thirteen year old), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002); State v. W.L., 292 N.J. Super. 100, 117 (App. Div. 1996) (age four). C.D., however, "was 15 years old at the time she reported the incidents." Thus, the judge concluded there was "no reason to believe that her concept of reality is so undeveloped that her perception of the facts and the past would be susceptible to outside influence." She was "not the type of impressionable child witness envisioned by the Michaels Court."

In fact, the court reasoned defendant had

failed to produce any evidence to indicate that the victim's statements to the police were not the product of her own recollection. On the contrary, C.D.'s statements have remained generally consistent from her initial fresh complaint on April 28, 2001 to Susan Bucholski to the subsequent statements provided by C.D. to the police authorities. Other than the failure to videotape the interview, the Defendant has not offered evidence that the interrogation techniques were highly suggestive or coercive along the lines of those used in the Michaels case.

 

The court found, however, that "the police authorities did not employ the optimal practices when conducting the questioning of C.D." They "used positive reinforcement and leading questions at times and the victim's mother was present in the interview." Nevertheless, the court held "the deficiencies in the interview in this case do not rise to the level of affecting the reliability of the victim's statements and do not necessitate a taint hearing." Moreover, because defendant "ha[d] admitted to committing some of the alleged abuse," his statements further corroborated C.D.'s allegations.

Finally, the judge found that

the very fact that the victim chose to confide in her religious leaders and may have received some counseling from them is not enough to raise a question about the reliability of her statement to the police. It is in no way unusual for a victim of any type of abuse to confide in those people they deem trustworthy. . . . Indeed, many individuals seek assistance from religious leaders and counselors when faced with major life challenges. There is no indication that these religious leaders coerced C.D.'s statements or were unduly suggestive. Combined with her age and the lack of any evidence as to a disability, there is no reason to believe that her confiding in religious leaders prior to reporting to the police should in any way compromise the reliability of her statements.

 

Defendant argues that C.D. was still an impressionable child, even if she was fifteen. He points to C.D.'s trial testimony regarding her not telling T.D. about the abuse because she wanted to do her religious service the next day and feared being kept inside the house if she revealed defendant's behavior. He further suggests that T.D. may have passed the child molester information she received from the Elder to C.D. Therefore, defendant argues, since the police interview itself was not optimal, a taint hearing would have revealed whether C.D. saw this information and whether it unduly influenced or coerced her statements to the police or her recollections at trial.

It is well established that "children, as a class, are not to be viewed as inherently suspect witnesses." Michaels, supra, 136 N.J. at 308. In fact, the Court recognized that "under certain circumstances, children's accounts of sexual abuse can be highly reliable." Ibid. Even though Michaels and its progeny do not impose a per se class of easily influenced child witnesses based on a particular age limit, as the State points out, N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule focuses on children under twelve and provides that even "[a] statement by a child under the age of twelve relating to sexual misconduct with or against that child" can be admissible at a criminal trial.7 More important, because defendant ultimately admitted he committed some of the alleged abuse, his statements added to the trustworthiness and reliability of C.D.'s statements.

Also, defendant's claim that T.D. may have passed the child molester information she received from the Elder to C.D. is not based on any evidence in the record. Even the court declared that the defense had provided "nothing in terms of what [the] Elder [] did, other than the fact that he may have obtained information from the internet regarding similar types of offenses, as well as an allegation as to what was discussed within the course of a ceremony." Any additional information possessed by defendant should have been presented at trial, since it would have directly affected the credibility of C.D.'s recollections.

Finally, based on the record, which is without the police reports or audiotape of C.D.'s interview, we do not find error in the judge's conclusion that the police techniques, while not "optimal," did not "rise to the level of affecting the reliability of the victim's statements and do not necessitate a taint hearing." It should also be noted that "the use of leading questions to facilitate an examination of child witnesses who are hesitant, evasive or reluctant is not improper." Smith, supra, 158 N.J. at 390. Therefore, we affirm the court's denial of defendant's request for a taint hearing because he did not meet his initial burden.

 

VII.

Defendant argues that the judge imposed an excessive sentence when he sentenced him to concurrent terms of five years (the minimum sentence for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)) and refused to downgrade the second-degree convictions to third-degree crimes pursuant to N.J.S.A. 2C:44-1(f)(2). He does not disagree with the aggravating or mitigating factors found by the court, and he does not propose any additional mitigating factors. Instead, he argues that the judge improperly weighed the factors, because the mitigating factors should have been given greater weight than the aggravating factors. He claims that the most compelling reasons for downgrading were the jury's verdicts acquitting him of the sexual assault charges, which meant he was only convicted "for his failure to take adequate precautions in the future to avoid another sleepwalking episode." Thus, defendant asks this court to exercise original jurisdiction, and re-sentence him to concurrent minimum three-year terms for third-degree crimes, pursuant to N.J.S.A. 2C:43-6(a)(3).

The State argues that "[e]ven assuming defendant's proposal is supported by the facts, . . . an equal number of [aggravating and mitigating] factors on each side, with the only difference in their respective weight, does not 'clearly and convincingly' show that the mitigating factors 'substantially outweigh' the aggravating factors."

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990). However, it may

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.

 

[State v. Roth, 95 N.J. 334, 364-65 (1984).]

 

"[T]he standard governing downgrading is high." State v. Megargel, 143 N.J. 484, 500 (1996). It is a two-pronged test, that is, in cases of convictions for first or second degree crimes, when the sentencing court is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he [or she] was convicted." N.J.S.A. 2C:44-1(f)(2) (emphasis added). The reasons for downgrading must be "'compelling,'" and must be "something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505. Also, in determining whether the interest of justice demands the downgrade, the severity of the crime is the single most important factor, although "facts personal to the defendant may be considered." Id. at 500-01. Thus, a sentencing court must state on the record its reasons for downgrading a sentence and should particularly state why a sentence at the lowest range for the offense is not a more appropriate sentence than a downgraded sentence. Id. at 502.

In his oral decision, the judge found two "moderate aggravating factor[s]": the risk that defendant will commit another offense, N.J.S.A. 2C:44 1(a)(3) and the need to deter defendant and others from similar illegal conduct in the future, N.J.S.A. 2C:44-1(a)(9). The judge found as a moderate mitigating factor8 defendant's lack of a previous record, N.J.S.A. 2C:44-1(b)(7), noting that defendant "had led a law abiding life for . . . some 15 years" and was only a "youthful" offender of "criminal mischief and burglary . . . at the age of 18." He also found one "strong mitigating factor": substantial grounds tending to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1(b)(4). The judge did "not mean to say that [defendant] was sleepwalking during the incidents that he was convicted of, but instead that there were factors that perhaps . . . certain psychological and family factors that may have led him not to seek help for his condition." Thus, the judge announced that "the mitigating factors preponderate over the aggravating factors but do not substantially outweigh them." The judge then denied defendant's request for downgrading, relying on Megargel. We do not find defendant's sentence so clearly unreasonable as to shock the judicial conscience. Roth, supra, 95 N.J. at 365.

Affirmed.

 

 

1 A Cumberland County grand jury returned a fourteen count indictment charging defendant with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts three, six, nine, and twelve); four counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts four, seven, ten, and thirteen); and four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts five, eight, eleven, and fourteen). Following the trial, the petit jury found defendant guilty on counts eight, eleven and fourteen. He was found not guilty on all remaining counts.

2 The jury convicted him of the endangering crime associated with each of those incidents and acquitted him of the factually linked criminal sexual contact charges. The jury also acquitted defendant of all of the charges involving the first incident sexual assault (i.e., penetration), criminal sexual contact, and endangering the welfare of C.D. that was alleged to have taken place between January 15, 2001 and January 22, 2001 (counts one through five).

3 Dunn, supra, 284 U.S. at 393, 52 S. Ct. at 190, 76 L. Ed. at 358 ("Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment."), and Powell, supra, 469 U.S. at 66, 105 S. Ct. at 477, 83 L. Ed 2d at 469 (defendants cannot "challenge inconsistent verdicts on the grounds that in their case the verdict was . . . the product of . . . some error that worked against them").

4 Defendant conceded the admissibility of his initial statement about expecting the police.

5 Although presented to the judge below, the appellate record does not include the police reports nor the audiotape of C.D.'s interviews. Defendant, however, does not challenge the judge's findings of fact in his written decision, only the legal conclusions. We therefore rely on the court's factfindings.

6 The victim and her family moved in with "[the] Elder []" temporarily until finding a new place to live.

7 Before such statements are admissible, N.J.R.E. 803(c)(27)(b) requires the trial court to "find[], in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy." Under Rule 104(a), the challenging party must make a threshold showing that an arguable issue exists as to that evidence as justification for a full preliminary hearing. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104(a) (2010).

8 Although the transcript indicates the judge used the term "aggravating" factor, it is clear he meant "mitigating" factor as he expressly referenced factor number seven, defendant's lack of a previous record.