STATE OF NEW JERSEY v. JOHN S. POSTON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN S. POSTON,

Defendant-Appellant.

_______________________________

November 4, 2016

 

Argued September 15, 2016 - Decided

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-05-1175.

Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone and John R. Stein, on the brief).

Melinda A. Harrigan, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Diane Ruberton, Acting Atlantic County Prosecutor, attorney; Elliott J. Almanza, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John S. Poston was charged with the sexual assault of two brothers, J.M., whom we identify as Jeffrey, and R.M., whom we identify as Reed. Following a bench trial, as he waived his right to a trial by jury, defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count two); two counts of fourth-degree child abuse, N.J.S.A. 9:6-3 (counts three and four); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six); and fourth-degree lewdness, N.J.S.A. 2C:14-4(b) (count seven). The judge imposed an aggregate sentence of eight-years imprisonment, subject to a five-year period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant now appeals from the December 19, 2014 judgment of conviction, arguing

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT ONE OF THE INDICTMENT BECAUSE THERE WAS NO PROOF THAT DEFENDANT EXERCISED THE TYPE OF "SUPERVISORY OR DISCIPLINARY POWER" OVER J.M. INTENDED BY N.J.S.A. 2C:14-2[(c)](3)(b).

POINT II

TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT TWO OF THE INDICTMENT AS THERE WAS NO PROOF THAT DEFENDANT EXERCISED THE TYPE OF "SUPERVISORY OR DISCIPLINARY POWER" OVER [J.M.] INTENDED BY N.J.S.A. 2C:14-3(b).

POINT III

TRIAL COURT ERRED IN DENYING DEFENDANT A NEW TRIAL IN THE INTEREST OF JUSTICE PURSUANT TO R. 3:20-1 BECAUSE OF CUMULATIVE ERROR THROUGHOUT THE TRIAL.

A. Trial Court's Reliance on Testimony, Opinions, and Conclusions from its Previous Sexual Assault Trials in Assessing the Credibility of J.M. and R.M. and in its Finding of Defendant's Guilt Mandates a New Trial.

B. The Trial Court Violated Defendant's Constitutional Right to Confront J.M. on his Admitted Mental Instability While Thereafter Concluding J.M. Was Credible and in Touch with Reality.

C. The Trial Court Erred in Denying Defendant a New Trial Because the State Suppressed Witness Statements That Were Later Disclosed During the Witness' Testimony at Trial.

We have reviewed each of these issues, in light of the record and the applicable law. We affirm.

I.

The State presented its case in chief over three days. In addition to the alleged victims and their mother D.M., whom we identify as Deborah, the State called detectives Frank Schalek and Michael Robinson. Other witnesses included neighbors Karen and James; Joseph, defendant's friend with whom he was residing;1 and Martin A. Finkel, D.O., a pediatrician specializing in the "sexual victimization of children," who examined both Jeffrey and Reed. Defendant called the Division of Child Protection and Permanency caseworker Karin Paris-Ramos and Hampton Hospital nurse Shannon Boroughs-Pryor. Further, defendant testified on his own behalf. The State recalled Deborah in rebuttal. Various documents were admitted into evidence by each party, along with videotapes of police interviews.

These facts are found in the trial record. Defendant had been a family friend for more than twenty years. He began living with Deborah and her husband prior to Jeffrey's birth, and they treated him as a member of the family. Defendant relocated to Florida when Deborah was pregnant with Reed, but maintained his close ties to the family. Deborah testified defendant "felt like he was brother to me." The family "loved him [and] the kids adored him." Both Jeffrey and Reed referred to defendant as "Uncle Johnnie."

Jeffrey contracted viral encephalitis at age four, which affected his neurological and physical development. Deborah characterized Jeffrey's emotional functioning as "lagging . . . three to four years" behind his chronological age. In elementary school, Jeffrey's emotional and developmental delays were recognized. As a young teen, he began attending a specialized residential school to aid his unstable emotional health, as it offered "a tight structured regime." Defendant "was well aware of [Jeffrey]'s developmental disabilities and delays."

In August 2010, defendant was living in New Jersey, residing in the home owned by Joseph. Defendant began visiting the family "a lot more frequently than he ever had . . . spending time with . . . the boys" and regularly accompanied them to the beach. Defendant told Deborah Joseph's family would be away the weekend of September 3 to 5, 2010, and he invited then seventeen-year-old Jeffrey to visit, swim in the pool, and spend the night. Defendant brought Jeffrey home after one overnight and took Reed to stay over the following night. Deborah testified "we had no problem permitting [defendant] to have supervision of the children, we trusted him with them, and this was the first time they ever went and did anything like that . . . ."

Following the overnight visit, Deborah stated Jeffrey

barricad[ed] himself in his bedroom. He looked terrible, he was miserable, he seemed sad, depressed, he wouldn't talk about anything, he wouldn't eat . . . he kept himself in his room, he was very anti-social, he barricaded his room with his furniture, his door to his room. He wouldn't let anyone in . . . .

Karen, a neighbor, testified regarding her conversation with Jeffrey, after his stay at defendant's residence. She stated Jeffrey was very agitated and upset. Expressing concern for his younger brother, Jeffrey ultimately revealed while with defendant he drank alcohol and smoked marijuana, and later defendant was "fondling him" and performing fellatio.

Jeffrey eventually told his parents details of the overnight interaction with defendant. Deborah contacted the Hamilton Township Police Department on September 30, 2010, and an investigation commenced.

James, another neighbor, discussed a verbal disagreement he witnessed between Jeffrey and Reed. He saw Jeffrey "screaming and yelling at [Reed] saying this isn't going to happen to you like it happened to me. I'm not going to let him do it to you, and he mentioned Uncle John, and he wasn't going to let it happen again."

Jeffrey related his recollection of events when he went to spend the night with defendant. He explained the two stopped at a liquor store to buy rum and at Wawa to purchase food. When they arrived at the house, defendant told Jeffrey to put his bag in a room containing one double bed. Jeffrey grabbed his sketchbook and went outside by the pool, where defendant followed pouring rum and soda for each of them. Defendant started smoking marijuana and offered some to Jeffrey, which he accepted. Thereafter, Jeffrey began to feel "really dull, . . . out of it . . . like [he] was almost about to collapse." He stated he was intoxicated and went upstairs to sleep. Defendant followed Jeffrey. Jeffrey remembered defendant stripped to his boxers and the television was on. Jeffrey fell asleep fully clothed after removing only his shoes and socks.

During the night, Jeffrey awoke and felt as if he were "on a carousel . . . everything was . . . spinning." He saw defendant, who was naked, with his hand on Jeffrey's genitals and "rubbing it up and down . . . and t[ook Jeffrey's] hand and place[d[] it on his [own] genitals and start[ed] grating my hand or whatever on his private parts." Defendant performed fellatio on Jeffrey and attempted to have Jeffrey place his mouth on defendant's penis. Jeffrey refused and describe feeling "[l]ike I'm in outer space, like I'm not there, like I'm not in reality, I'm just kind of daydreaming, but like not daydreaming, more like intoxication, so overwhelmed, I believe." Defendant again placed his mouth on Jeffrey's penis and placed his own right hand on his own. Defendant attempted to place his genitals on Jeffrey's face and ejaculate, which Jeffrey resisted.

The following morning Jeffrey and defendant smoked more marijuana, went to breakfast, drove to the mall, and returned to Jeffrey's home. Initially, believing his encounter with defendant was "a sick nightmare," Jeffrey did not tell anyone about the incident as "he didn't know how to handle it."

A few days later, he revealed the incident to his neighbors, Karen and James; he then told his mother. The State introduced three Facebook conversations between defendant and Jeffrey occurring after the incident. In one response, Jeffrey referenced drinking and smoking marijuana with defendant. Defendant did not deny or respond to this post, but in his words "blew it off."

Reed testified about his overnight stay with defendant at Joseph's residence. At the time he was twelve years old. His mother drove him to a nearby coffee shop where they met defendant. When they arrived, the two went to the backyard pool. Defendant poured Reed soda and offered him rum, which he drank. Defendant removed his clothing, explaining he was "skinny-dipping." Reed entered the pool from the opposite side as defendant, wearing his shorts. Defendant, who was naked, began to approach Reed, who told him to "stay away." Defendant put his shorts on and returned to the pool. Later that night, defendant directed Reed to a bedroom, containing one bed, where they both slept.

The next day when Reed returned home, Jeffrey asked whether defendant gave him "any alcohol, and . . . was acting very aggressively and furious." He also asked Reed whether defendant was smoking pot or had touched him anywhere.

Next, the State expert witness Dr. Finkel testified regarding his October 10, 2010 examinations of Jeffrey and Reed. He described the process undertaken in making his diagnostic assessment that Jeffrey experienced an inappropriate sexual touching.

Dr. Finkel discussed common characteristics of sexual victimization including delayed disclosure of events, methods employed by children to get their feelings out, desensitizing techniques used by abusers, and how unusual it is for teenagers to "make up stories about things that are going to bring embarrassing attention to them." He discussed the medical history provided by Jeffrey and Reed and the history from their parents.

Further, Dr. Finkel related Jeffrey's description of the details of the alleged sexual assault by defendant. He identified Jeffrey's cognitive and developmental delays, analyzed his statements regarding physical trauma, specifically that he was suffering dysuria and mucosal trauma after being bit on the penis, as well as Jeffrey's description of his experience with defendant. Dr. Finkel concluded Jeffrey provided an accurate reflection of his experience.

Dr. Finkel also related his examination of Reed. He noted similarities between his and Jeffrey's experiences, concluding Reed had been placed at risk, as he was given alcohol. However, Reed was not sexually victimized, likely because "he was able to resist," making him less vulnerable.

At the close of the State's case, defendant moved for a judgment of acquittal on charges in count four, fourth-degree child abuse, regarding Reed, and counts five and six, second-degree endangering the welfare of Jeffrey and Reed. The trial judge denied the motion as to count four. He also determined the evidence insufficient to prove count five beyond a reasonable doubt, because the State failed to establish a continuing or regular supervisory caretaker relationship between defendant and Jeffrey; this count was dismissed. Concerning count six, the motion was denied because Reed was twelve years-old at the time of the offense; however, the charge was reduced to a third-degree offense.

Defendant called the Division caseworker, who interviewed Jeffrey regarding the incident. Direct examination highlighted factual inconsistencies between her interview and Jeffrey's statement to police. Also, she discussed a 2007 referral to the Division when Jeffrey allegedly experienced an incident of unwanted sexual contact by his roommate while in Hampton Hospital. Defendant also called a Hampton Hospital nurse, who recorded Jeffrey's report of his roommate's inappropriate contact.

Defendant testified in his own behalf. Describing himself as "one of the[] closest family friends" he "considered th[]e kids like my own." Relating the night of the sleepover, defendant denied offering Jeffrey alcohol or marijuana. Also, he denied any sexual contact occurred, and described his rationale for the sleeping arrangements, stating

Because of [Jeffrey]'s issues, I didn't want to just throw him on a couch downstairs. I needed to be at least in earshot of what was going to happen. I just could not not be around him. It's not my home, and with his known issues, I just so my intention was I think I made the option of putting him in [another] room wall-to-wall with my room . . . .

Regarding Reed's visit, defendant asserted he did not swim that evening and neither offered nor drank alcohol. At bedtime, although the two started to sleep in the same bed, he actually slept on the floor because Reed "was like a whirlybird" when he slept. The next day, he took Jeffrey and Reed to the beach. The following weekend, defendant again took the boys to the beach. When they returned home, he noticed Jeffrey had an "attitude about something." Defendant learned, from Deborah, Jeffrey was upset because he believed Reed was more favored by him. Defendant insisted this is why he sent the September 15, 2010 Facebook post to Jeffrey, encouraging him to talk about what was bothering him. He also described his telephone and direct contact with the family until the end of September.

On cross-examination, the State emphasized inconsistencies between defendant's trial testimony and his statement to police only weeks after the events. At trial, defendant suggested his statements to police represented an attempt to explain the allegations by Jeffrey and Reed, which he could not understand. At trial, defendant insisted the victim's stories were concocted, Jeffrey misinterpreted his comments, and Deborah and Reed were not truthful.

The State recalled Deborah as a rebuttal witness. She denied defendant spoke to her from September 3 to September 27, 2010. She specifically refuted she commented that Jeffrey was jealous of defendant's attention to Reed.

Following summations, the judge issued his oral opinion on July 25, 2014. He concluded the evidence proved defendant's guilt beyond a reasonable doubt, on all remaining charges.

After merger, defendant was sentenced on December 12, 2014 to an aggregate term of eight years. He filed this appeal on January 20, 2015.

II.

On appeal, defendant argues his motion for acquittal was erroneously denied because the State failed to prove the elements of the sexual offenses. He also asserts he is entitled to a new trial based on cumulative trial errors. We will review each issue as raised.

A.

Defendant first focuses on the convictions for sexual assault, counts one and two. He argues his motion for judgment of acquittal should have been granted because he did not exercise "supervisory or discretionary" power over Jeffrey as required by N.J.S.A. 2C:14-2(c)(3)(b) and N.J.S.A. 2C:14-3(b). We reject these arguments.2

Defendant was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b), which requires proof the defendant "had supervisory or disciplinary power of any nature or in any capacity over the victim" and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), which requires proof the defendant committed the act of sexual contact while "having supervisory or disciplinary power of any nature or in any capacity over the victim."

Acquittal is required, even absent a motion, when the State fails to prove one of the crime's elements. See, e.g., State v. Burke, 362 N.J. Super. 55, 60-61 (App. Div.) (vacating conviction under "Peeping Tom" statute where State failed to prove defendant peered into a dwelling), certif. denied, 178 N.J. 374 (2003); State v. Zeidell, 299 N.J. Super. 613, 622 (App. Div. 1997) (acquitting defendant on sexual assault charge because evidence only established lewdness), rev'd on other grounds, 154 N.J. 417 (1998).

Here, defendant's arguments suggest the judge erred in determining the State proved the element of "supervisory or disciplinary power . . . over the victim," common to both sexual assault offenses. Defendant maintains his convictions must be reversed because his relationship as a family "uncle" and the circumstances showing the incident was "a guys' night out" do not satisfy the supervisory element. Following our review, for the reasons stated, we reject defendant's contentions.

The statute itself does not define the "supervisory and disciplinary power" element. See N.J.S.A. 2C:14-1 (containing definitions applicable to sexual offenses in the Code). Moreover, few cases directly consider the interpretation of the supervisory element in the context of the sexual assault statutes. Nevertheless, the standards governing our de novo "interpretative task" are well known. State v. Hupka, 203 N.J. 222, 231 (2010). Our overriding objective is to discern "the intent of the Legislature, and to give effect to that intent." State v. Robinson, 217 N.J. 594, 604 (2014) (quoting State v. Hudson, 209 N.J. 513, 529 (2012)).

First, we consider the plain language of the statute. That task is guided by N.J.S.A. 1:1-1, which instructs

In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the [L]egislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.

We must apply common sense when deducing the meaning of the Legislature's chosen language, and may draw inferences from the statute's structure and composition. Hupka, supra, 203 N.J. at 232. "Ordinarily, when a statute's language appears clear, 'we need delve no deeper than the act's literal terms to divine the Legislature's intent.'" State v. Gandhi, 201 N.J. 161, 180 (2010) (quoting State v. Thomas, 166 N.J. 560, 567 (2001)). "On the other hand, if we find an ambiguity in the statutory language, we then turn to extrinsic evidence." State v. S.B., 445 N.J. Super. 49, 53 (App. Div. 2016). We may look to a variety of sources, "such as the statute's purpose, legislative history, and statutory context to ascertain the legislature's intent." Thomas, supra, 166 N.J. at 567; see State v. Crawley, 187 N.J. 440, 453 (discussing use of legislative history and related statutes as extrinsic aids to interpret statute), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

Where a criminal statute defining a crime is at issue, language "susceptible of differing constructions," must be interpreted "to further" the "general purposes" stated in N.J.S.A. 2C:1-2(a) and the "special purposes" of the provision at issue. N.J.S.A. 2C:1-2(a), (c). Most important here is the Code's purpose of giving "fair warning of the nature of the conduct proscribed," N.J.S.A. 2C:1-2(a)(4). Fair notice of prohibited conduct is the fundamental principle underlying the rule of construction calling for resolution of ambiguities in criminal statutes against the State.

[State v. J.B.W., 434 N.J. Super. 550, 554 (App. Div. 2014).]

At the outset, we note the terms "supervisory" and "disciplinary" are readily understood and do not denote legal terms of art. See State v. Afanador, 134 N.J. 162, 171 (1993) ("Supervisor" as used in N.J.S.A. 2C:35-3 did not need to be defined for a jury). As such, the words must be given their "generally accepted meaning." R. 1:1-1. To "supervise" means "to direct and watch over the work or performance of others." Webster's II New College Dictionary 1107 (1995). To "discipline" means "requiring rules or orders be obeyed." Id. at 324. In this light, supervisory power or submission to rules and authority involve one's ability to oversee people or activities, and disciplinary power involves the authority to correct behavior.

Next, important to determining the Legislature's intent, we consider subsection (c)(3)(b) was amended in 2001 to modify the required "supervisory or disciplinary power" over the victim, by adding the language "of any nature or in any capacity." L. 2001, c. 60. Words do make a difference. State v. Rangel, 213 N.J. 500, 514 (2013). By the very specific modification, which includes use of the word "any," the Legislature sought to broaden, not constrict, the scope of the phrase "supervisory or disciplinary power."

In State v. Sumulikoski, 221 N.J. 93 (2015), the Supreme Court examined whether territorial jurisdiction was satisfied to conduct trial in New Jersey of the defendant teacher, charged with sexual assault of students during a class trip to Europe. While analyzing the jurisdiction issue, the Court considered the supervisory element of the N.J.S.A. 2C:14-2(c)(3)(b), explaining this element "does not describe conduct or an affirmative act; it describes a person's status -- the nature and accompanying duties of a relationship," which could not be a basis to establish territorial jurisdiction. Id. at 106-07.

The supervisory element was also considered in the defendant's attacks on the sufficiency of the evidence to support conviction for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b), in State v. Buscham, 360 N.J. Super. 346, 360-61 (App. Div. 2003). That matter is distinguishable from this case because the crime charged required proof the defendant had "supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status," N.J.S.A. 2C:14-2(a)(2)(b), a different standard than the one at hand. However, this court's conclusion is helpful to our review.

In Buscham, we held "[t]he statute, in our view, speaks to the nature of the relationship which exists between an accused defendant and an alleged victim[,]" Buscham, supra, 360 N.J. Super. at 362, and declined to abide the defendant's proposed more "restrictive meaning." Id. at 361. Importantly, our conclusion noted the inquiry is fact sensitive. Buscham, supra, 360 N.J. Super. at 362. The panel further suggested determination of the "supervisory or disciplinary power over the victim" element requires examination of the nature and context of the relationship between the defendant and the victim and whether there "was a significant disparity in ages and/or maturity level between the two. . . ." Ibid. Also important, were facts showing the relationship was unequal so as to vest supervisory power in the defendant, which would examine the role the defendant played in the victim's life, the extent to which the defendant offered guidance or advice to the victim or his family, and the role the victim's parents viewed the defendant as undertaking regarding the victim. See also Model Jury Charge (Criminal), Aggravated Sexual Assault Victim At Least 13 But Less Than 16 (2004).

Defendant suggests the 2001 statutory amendment was not intended to be broadly applied, but was designed to include those defendants whose status did not fit within "a legal, professional or occupational statute" as stated in N.J.S.A. 2C:14-2(2)(b), such as a volunteer.3 We reject this view for several reasons.

As noted, we do not find the statute as written to be ambiguous. Therefore, we need not resort to an analysis of its Legislative's history. In re Young, 202 N.J. 50, 63 (2010). Nevertheless, the distinction identified in the preliminary Assembly Judiciary Committee statement does not limit the amendment to volunteers or reflect an intention to constrict application, which would exclude a close family friend, as defendant suggests. More important, restrictive language was not included in the final bill, as adopted. Accordingly, we reject as a matter of law, defendant's argument seeking a constrained view of the element requiring "the actor has supervisory or disciplinary power of any nature or in any capacity over the victim" to apply solely to volunteers, such as coaches or scout leaders. Had that been the intention, the Legislature would have so stated. N.J.S.A. 2C:14-2(c)(3)(b) (emphasis added). Instead, the language embodies any type of supervisory or disciplinary power held in any capacity. Unquestionably, this includes a close family adult who takes his surrogate nephew on a sleepover.

We also reject defendant's suggestion the State failed to prove he held and exercised "supervisory or disciplinary power" over Jeffrey. We reject the necessity of proof showing the power was exercised based on Sumulikoski's holding that the element "describes a person's status -- the nature and accompanying duties of a relationship" and does not refer to conduct. Sumulikoski, supra, 221 N.J. at 106.

For completeness, we identify the facts of record the judge found, proving the supervisory element needed to sustain a conviction. Defendant was a close "family friend," for more than twenty years, who knew Jeffrey his entire life, and who acted like "a surrogate uncle." During Jeffrey's overnight visit, defendant was forty-four, while Jeffery was chronologically seventeen. Also, the maturity level between defendant and Jeffrey was stark. Buscham, supra, 360 N.J. Super. at 362. The judge found Jeffrey "clearly has deficits" and his developmental delays compromised his behavior and ability to process social information, such as "body language and inferences," which were suggestive of one several years younger. Defendant was aware of Jeffery's limitations. Jeffrey's parents reposed trust in defendant to care for their son on prior occasions, when they went to the beach or boardwalk, as well as on the night of the incident where Jeffrey was essentially alone with defendant. Jeffrey trusted defendant and testified defendant "was always there for me. He was somebody that I could trust . . . ." Defendant admitted his role in giving advice and guidance to Jeffrey, a role also illustrated by defendant's Facebook posting to Jeffrey, stating "we can talk about anything, anywhere."

Moreover, defendant's testimony refutes his argument he lacked supervisory authority on what he characterizes as a "guy's night out," where Jeffrey made all his own choices. Defendant initiated and organized Jeffrey's stay: he assumed responsibility to pick him up, feed him dinner, provide breakfast, and deliver him home. Once in his residence, defendant insisted "[b]ecause of [Jeffrey]'s issues, I didn't want to just throw him on a couch downstairs." Therefore, he directed Jeffrey to sleep in bed with him, acknowledging his careful consideration of the sleeping arrangements, stating "I needed to be at least in earshot of what was going to happen. You know, to keep an eye on him. I just could not not be around him." Also significant is defendant's description of his relationship with Jeffrey and Reed, which clearly was as adult and child, not peers having a sleepover.

The totality of the State's evidence proves beyond a reasonable doubt defendant held supervisory power over Jeffrey. Defendant's convictions under N.J.S.A. 2C:14-2(c)(3)(b) and N.J.S.A. 2C:14-3(b) will be sustained.

B.

Defendant next asserts a new trial is mandated because a culmination of three trial errors denied him a fair trial. State v. Rivera, 437 N.J. Super. 434, 444 (App. Div. 2014). We find these arguments lack merit, R. 2:11-3(e)(2). We add these brief comments on the three challenges raised.

1.

Defendant insists the judge's expressed experience from previous sexual assault trials "exposed the judge's inability to remain impartial." To support this claim, defendant cites three statements, uttered by the judge in the course of his credibility findings, as follows

Felt like [Jeffrey] was in outer space, not in reality. It's that I wanted to get to. Again, based on my experience in hearing from sexual assault victims it's common to hear out-of-body experience, felt removed. . . . I'm saying it's not uncommon to hear sexual assault victims describe the experience in that way, and if that is the genesis for the argument that this is contrived, I don't accept it.

. . . .

And while I'm on the subject of eerie similarities, [defense counsel] makes the point that this complaint that was made as to the assault at Hampton H[ospital] being eerily similar, I have presided over at least two child sex assault cases where the child was sleeping and awakened at the touch [of] an adult.

. . . .

It is not suggested as a possible product of his mental health in any way, and actually as I commented earlier, not uncommon expression of how he felt that we hear frequently from sex assault victims.

A factfinder "is charged with making credibility determinations based on ordinary experiences of life and common knowledge about human nature, as well as upon observations of the demeanor and character of the witness." State v. Jamerson, 153 N.J. 318, 341 (1998). Therefore, a judge's reference to his common experiences does not suggest he based his findings on preconceived notions or extraneous evidence. "[C]redibility findings . . . are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience." State v. Locurto, 157 N.J. 463, 474 (1999). Contrary to defendant's claims, we view these comments as proper expressions of the basis for determining credibility.

Defendant's theory was Jeffrey's condition or emotions cause him to make up the story of the assault. In assessing this claim, the judge identified and weighed numerous factors favoring or detracted from the credibility of Jeffrey's version of events. The judge considered Jeffrey's demeanor, intellect, and the details of the events he related. He also noted Jeffrey did not reveal the Hampton Hospital incident when questioned by Dr. Finkel, and there were some factual inconsistencies in his prior statement recounting events. The judge also considered corroborating testimonial, expert or other evidence.

As the Supreme Court noted in State v. P.H., 178 N.J. 378, 397-98 (2004): "The weighing of witness credibility in a sexual assault trial is a complicated endeavor. Demeanor evidence, expert testimony, circumstantial evidence, logic and common experience all play a role in the balance that ultimately emerges." The trial judge did exactly that. We reject the suggestion he was "judged on impressions" and find no error.

2.

We also reject defendant's claimed constitutional violations arising from the limitation placed on questions posed to Jeffrey regarding his prior mental health treatment. Specifically, defendant suggests his right of confrontation was compromised because the judge denied him the opportunity to cross-examine Jeffrey on why he attended the two-year specialized residential program for at-risk youth. Defendant claimed Jeffrey testified his parent's decided he should attend, which he asserts was inconsistent with his October 1, 2010 interview with police, wherein he stated he was "unstable" and tried "to hurt himself." Defendant insists the adverse ruling improperly restricted his ability to elicit inconsistent statements discrediting Jeffrey's credibility. We disagree.

"Evidentiary rulings made by the trial court are reviewed under an abuse-of-discretion standard." State v. Scharf, 225 N.J. 547 (2016). "To that end, trial courts are granted broad discretion in making decisions regarding evidentiary matters, such as whether a piece of evidence is relevant . . . ." Ibid. (citation omitted). Reversal is warranted only when the ruling is "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

"The right of confrontation is an essential attribute of the right to a fair trial," and it is exercised through the cross-examination of witnesses. State v. Branch, 182 N.J. 338, 348 (2005). See also State v. Bass, 224 N.J. 285, 301-02 (2016). However, trial courts have considerable discretion in controlling cross-examination. State v. Jenewicz, 193 N.J. 440, 467 (2008). "Thus, a defendant's constitutional right to confrontation does not guarantee unlimited cross-examination of a witness." State v. Harvey, 151 N.J. 117, 188 (1997).

We cannot agree with defendant's underlying premise suggesting Jeffrey's trial testimony was inconsistent with his prior sworn statement, allowing admission of that statement. See N.J.R.E. 803(a)(1) (stating the prior-inconsistent-statement exception to the hearsay rule). Further, we cannot agree Jeffrey's emotional stability when admitted to the specialized program in 2008, was relevant to any triable issue, including his mental stability in September 2010.

Finally, defendant effectively cross-examined Jeffrey, probing his version of events to demonstrate they were contrived. Defendant thoroughly questioned Jeffrey regarding: a prior allegation of sexual assault while at Hampton Hospital; inconsistencies in his recollection of events; the truthfulness of his disclosures to Dr. Finkel; his prior arrest; his description of the events as "a dream"; and his failure to immediately disclose the assault.

"Thus, defendant received that which the Confrontation Clause guarantees: 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" State v. Williams, 184 N.J. 432, 453-54 (2005) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985)), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

3.

Defendant's final argument suggests the State withheld statements by Deborah, which he suggests rise to a Brady4 violation. "There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied sub nom., New Jersey v. Nelson, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). Defendant's claim is unfounded.

Defendant does not cite testimony showing Deborah engaged in "multiple telephone interviews" with the police or the prosecutor's office, as he claims. At best, the record includes Deborah's comment she spoke with a detective "numerous times," which context shows referred to ministerial issues, such as court room attire and scheduling. Nothing supports she issued material witness statements that were withheld by the State.

III.

Our review finds no support for defendant's request for a new trial. His convictions are sustained.

Affirmed.

1 We identify these fact witnesses solely by their first names to protect the victim's identity.

2 Procedurally, defendant never moved for acquittal on counts one and two. As noted, the motion filed at the close of the State's evidence sought acquittal on counts four, five and six, alone. We also note, notwithstanding the cumulative error argument as framed, defendant did not move for a new trial.

Generally, we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). However, we consider defendant's arguments as raising legal errors, which we will review de novo.

3 In support for this premise, defendant cites language found in the Assembly Judiciary Committee, Statement to Senate Bill No. 84, L. 2001, c. 60, which states "in addition to parents, teachers, law enforcement officers, etc., this provision is intended to cover individuals with supervisory or disciplinary power in volunteer organizations."

4 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).