STATE OF NEW JERSEY v. K.S

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3693-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.
K.S.,

Defendant-Appellant.
________________________________

Argued: November 18, 2009 Decided: March 11, 2010

Before Judges Cuff, C.L. Miniman and Waugh.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 05-06-0662-I.

Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Mr. Sanders, of counsel and on the
brief).

Assistant
Anne Marie Gibbons-Lejnieks,
Prosecutor, argued the cause for respondent
(Theodore J. Romankow, Union County Prosecu-
tor, attorney; Ms. Gibbons-Lejnieks, of
counsel and on the brief).

PER CURIAM

Defendant K.S. appeals from an amended judgment of convic-

tion of first-degree aggravated sexual assault contrary to

N.J.S.A. 2C:14-2a(1), on which a sentence of thirteen years sub-

ject to the No Early Release Act, N.J.S.A. 2C:43-7.2, was

imposed; second-degree sexual assault of a victim under thirteen

years contrary to N.J.S.A. 2C:14-2b, merged for sentencing pur-

poses into the first-degree offense; and third-degree endanger-

ing the welfare of a child in his custody contrary to N.J.S.A.

2C:24-4a, on which a concurrent sentence of seven years was

imposed. We affirm.

Defendant and V.A., the victim's biological parents, had a

sporadic relationship but were residing together on November 29,

2004.1 The victim was nearly six years old at the time. Defen-

dant and V.A. had been living apart until 2003 when V.A. allowed

him to return to her one-bedroom apartment because he had

nowhere else to stay. The victim slept in a bunk bed in the

living room. Her fifteen-year-old brother, who was living with

his maternal grandmother, shared the bunk bed when he came to

visit.

Defendant's relationship with his young daughter was trou-

bled. From the beginning, he told the victim to call him by his

first name rather than "Dad." She did so because she did not

care for him. V.A. described defendant's attitude towards the

victim as "cold" and asserted that he was rough with his young

1
Defendant has other children, including one with L.P., and he
would stay with L.P. and their child sporadically as well.

A-3693-06T4
2

daughter. By all accounts, defendant was the family's discipli-

narian. He would not "put up with [the victim's] antics" and

was stricter than V.A., sometimes spanking the victim when she

misbehaved. The victim testified that she was not happy when

defendant moved into the apartment and did not like having him

around.

Typically, defendant picked the victim up after school

ended at 2:35 p.m. Under normal circumstances, defendant would

bring the victim to her grandmother's house at 4:00 p.m.,

because V.A. worked the 11:00 a.m. to 7:00 p.m. shift at a nurs-

ing home. However, on November 29, the maternal grandmother was

not available to watch the victim. Defendant called V.A. and

offered to watch their daughter until V.A. came home from work

that evening. Although defendant did not usually watch the vic-

tim, he had done so for brief periods of time in the past when

V.A. ran errands.

After defendant picked the victim up from school that day,

she told him that she did not have school the next day, which

was not true. When defendant caught the victim lying, he became

angry and told the victim that she was not going to get the spe-

cial birthday present he had promised her, getting her ears

pierced and picking out her first set of earrings, which made

A-3693-06T4
3

her upset. This was not the first time that the victim had

lied.

V.A. came home from work that night at 7:30 p.m. She found

the victim doing her homework on the living-room floor and

defendant in the kitchen eating. Defendant immediately asked

V.A. for intercourse. Although it was unusual for defendant and

V.A. to have sex when she returned home, it happened "[o]nce in

a blue moon." They went into the bedroom and closed the door,

leaving the victim on the floor in the living room.

When they were finished, V.A. took a shower and began get-

ting a bath ready for the victim. While in the bathroom, the

victim remarked that she "was tired of touching it." When V.A.

inquired if she was tired of touching herself, the victim told

her that she was tired of touching defendant's "private." Spe-

cifically, the victim told her mother that defendant had the

victim "touch his private and taste it." The victim told her

mother that defendant's "private" looked "like a squirrel tail."

She also told V.A. that defendant put his mouth on her "private"

and it hurt. When asked to explain, she pointed to her vagina.

At trial, the victim expanded upon what happened. She

stated that when she and defendant arrived home from school,

A-3693-06T4
4

defendant asked her to go into the bedroom with him.2 Defendant

then took off the victim's skirt and underwear and then his own

pants and underwear, leaving their shirts on.3 The victim stated

that defendant then licked her "private" and told her to lick

his "private." Using anatomically correct dolls, the victim

demonstrated what had happened for the jury. The victim testi-

fied that when they were done, defendant pulled up his pants and

told her not to tell anyone, and she went to the living room and

turned on the television.

After the victim told V.A. what had happened, V.A. became

extremely upset and asked her daughter if she wanted her to con-

front defendant. The victim said yes, and so V.A. called defen-

dant into the hallway and asked him if he had molested the vic-

tim. Defendant calmly denied the accusation and said that the

victim was "just twisting things because he's always telling her

not to let anybody touch her in any way[,] shape or form." V.A.

then asked the victim if it had in fact happened; the victim

replied "no."

Shortly after the confrontation, defendant went back to the

bedroom and listened to music until he was picked up to go to

2
In her statement to the police, the victim stated this occurred
in the living room.
3
In her statement to the police, she indicated that she removed
defendant's pants and underwear.

A-3693-06T4
5

his other daughter's house. V.A. questioned the victim again

about whether the incident happened after defendant left, and

the victim replied affirmatively. V.A. cooked dinner, gave the

victim a bath, put her to bed, and then called a friend to dis-

cuss the incident. V.A.'s friend advised her to call the

police, which V.A. did slightly after midnight.

When the police arrived, V.A. gave them the pajamas the

victim had been wearing when V.A. came home from work along with

the underwear that she had worn earlier.4 The police then drove

V.A. and the victim to the police precinct and then to the Union

County Prosecutor's Child Advocacy Center (Advocacy Center).

The Advocacy Center is a house that has been converted into an

office and is more child-friendly than the prosecutor's office.

The first floor consists of a children's interview room and a

waiting area; the second floor is the detective division; and

the third floor contains an office for the assistant prosecutor.

After the victim and V.A. arrived at around 3:00 a.m. on

November 30, Detective Joseph Genna of the Union County Prosecu-

tor's Office took the victim into the interview room and con-

interview, which was videotaped and
ducted a non-suggestive

4
The underwear subsequently tested positive for amylase, an
enzyme present in both saliva and feces; however, subsequent DNA
testing revealed that the amylase belonged to the victim, not
defendant.

A-3693-06T4
6

lasted about forty minutes. After the interview concluded,

Genna took V.A.'s statement and then V.A. and the victim went

home. Defendant called V.A. later that day to see if the victim

needed to be picked up at school, but V.A. said she had not gone

to school because she was not feeling well. Genna secured a

warrant for defendant's arrest based on the information provided

by the victim and her mother; the police arrested defendant

around 9:50 p.m. that night at the victim's home. Defendant

Miranda5
waived his rights and gave a statement denying the

allegations of sexual assault.

A few days later, the victim was referred to the Dorothy

Hirsch Child Protection Center (Hirsch Center) in New Brunswick

for a medical assessment. The victim was examined by Dr. Glad-

ibel Medina, the clinical director for the pediatric outpatient

clinic at Saint Peter's University Hospital and a consulting

physician at the Hirsch Center. Dr. Medina met first with V.A.

and the victim to introduce herself and explain the examination

process. At trial, she described her role as allowing the fam-

ily "to have the opportunity of a physical examination [of the

victim] for the purpose of diagnosis and treatment of any abnor-

mality found and I give them the opportunity to . . . ask any

5
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).

A-3693-06T4
7

questions they may have and for us to refer them to counseling,

if necessary."

After obtaining permission from both the victim and V.A.,

Dr. Medina conducted a full body examination of the victim, with

a focus on the genitalia because the victim reported that her

"private area" hurt when defendant was licking it. The exam was

negative and Dr. Medina found no signs of trauma or sexually

transmitted disease. Dr. Medina explained that based on the

type of incident reported, she would not expect to find anything

in the physical exam because "[u]sually there is no physical

evidence" associated with cunnilingus. She further explained

that the pain the victim reported as occurring during the inci-

dent was not uncommon. "Actually in a pre-pub[escent] child

which is a child that has not gone through sexual development,

the tissue between the . . . labia majora [is] very sensitive to

the touch. . . . She gave a history it hurt when he was licking

it. However, because of sensation not because of . . . injury."

II.

Prior to trial, defendant filed an in limine motion to pre-

clude the testimony of Dr. Medina as an expert witness or,

alternatively, to limit her testimony to that of a fact witness.

On March 3, 2006, the motion judge conducted a hearing on defen-

dant's motion. The judge denied the motion and ruled that Dr.

A-3693-06T4
8

Medina's testimony was admissible expert testimony under the

N.J.R.E. 803(c)(4) hearsay exception.

Defendant's first trial took place before the trial judge

and a jury on March 15-17, 2006. The jury was unable to return

a unanimous verdict, resulting in a mistrial. The matter was

retried over five days between June 5 and June 15, 2006; this

time the jury convicted defendant on all three counts.

Sentencing took place on October 13, 2006. The trial judge

found aggravating factor nine6 and mitigating factor seven7 were

applicable and equally weighted. She then sentenced defendant

as described above. She ordered defendant to submit a DNA sam-

ple, granted him 681 days of jail credit, and imposed various

applicable fees and costs.

The judge entered an amended judgment of conviction on

November 1, 2006, reflecting her sentencing decision and also

ordering defendant to be subject to community supervision for

life. On January 3, 2007, the judge filed a second amended

judgment of conviction, removing the community supervision and

replacing it with parole supervision for life. This appeal

followed.

6 N.J.S.A. 2C:44-1a(9).

7 N.J.S.A. 2C:44-1b(7).

A-3693-06T4
9

Defendant raises the following issues for our

consideration:

POINT I DR. MEDINA'S OPINION TESTIMONY
REGARDING [THE VICTIM'S] ALLEGATIONS OF SEX-
UAL ABUSE WAS INADMISSIBLE. IT IMPROPERLY
BOLSTERED THE CREDIBILITY OF THE COMPLAINING
WITNESS, AND DENIED [DEFENDANT] BOTH DUE
PROCESS AND A FAIR TRIAL. (Partially Raised
Below)

A. The Trial Court Erred In Finding That
[The Victim's] Allegations Of Abuse
Were Statements For Medical Diagnosis
Within The Meaning of N.J.R.E.
803(c)(4).

1. Dr. Medina's expert testimony was
improperly admitted as [the vic-
tim] was not seeking treatment at
the time of the discourse and Dr.
Medina's primary purpose was
forensic.

2. The subject matter of Dr. Medina's
testimony was not outside the ken
of the average juror.

B. Dr. Medina Exceeded The Permissible
Bounds Of Expert Testimony By Vouching
For [The Victim's] Credibility.

C. Dr. Medina's Inadmissible Testimony Was
A Bedrock Of The State's Inappropriate
Arguments In Summation And Defendant
Was Thereby Deprived Of Due Process And
A Fair Trial.

D. Trial Counsel Provided Ineffective
Assistance By Failing To Object To Dr.
Medina's Objectionable Testimony Prior
To The Second Trial.

POINT II THE REPETITION OF [THE VICTIM'S]
VERSION OF EVENTS VIOLATED N.J.R.E. 403 BY

A-3693-06T4
10

UNDULY PREJUDICING THE DEFENDANT AND ESTAB-
LISHING UNDUE DELAY, WASTE OF TIME, AND
NEEDLESS PRESENTATION OF CUMULATIVE
EVIDENCE.

POINT III REPEATED INSTANCES OF PROSECUTO-
RIAL MISCONDUCT DENIED [DEFENDANT] HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST.
ART. I, ¶¶ 1, 10.

POINT IV THE TRIAL COURT'S IMPOSITION OF
THIRTEEN YEARS IMPRISONMENT SUBJECT TO THE
NO EARLY RELEASE ACT WAS EXCESSIVE, UNDULY
PUNITIVE, AND MUST THEREFORE BE REDUCED.

The scope of our review of a judge's evidentiary rulings is

generally limited to ascertaining whether the judge mistakenly

exercised the judge's discretion, provided those rulings are not

inconsistent with applicable law. State v. Burns,
192 N.J. 312,

332 (2007); State v. B.M.,
397 N.J. Super. 367, 374-75 (App.

Div. 2008). Error in the admission of evidence will not be

deemed harmful if defendant's fundamental rights have not been

impaired and the weight of the evidence against defendant is

State v. Soto,
340 N.J. Super. 47, 65 (App. Div.),
great.

certif. denied,
170 N.J. 209 (2001).

We review prosecutorial excess to determine whether it was

so egregious in the context of the trial as a whole as to

deprive defendant of a fair trial. State v. Wakefield,
190 N.J.
397, 435-38 (2007), cert. denied,
552 U.S. 1146,
128 S. Ct. 1074,
169 L. Ed. 2d 817 (2008); State v. Roman, 382 N.J. Super.

A-3693-06T4
11

44, 61 (App. Div. 2005), certif. dismissed as improvidently

granted,
189 N.J. 420 (2007).

Finally, we "review sentences to determine if the legisla-

tive policies, here the sentencing guidelines, were violated."

State v. Roth,
95 N.J. 334, 364 (1984). We also "review the

aggravating and mitigating factors found below to determine

whether those factors were based upon competent credible evi-

dence in the record." Ibid. Last, we "determine whether, even

though the court sentenced in accordance with the guidelines,

nevertheless the application of the guidelines to the facts of

th[e] case makes the sentence clearly unreasonable so as to

Id. at 364-65.
shock the judicial conscience."

III.

Defendant argues that the trial judge deprived him of due

process and a fair trial by admitting Dr. Medina's expert testi-

mony. First, he contends that the victim's statements to her

were improperly admitted and Dr. Medina's testimony was not out-

side the ken of the average juror and, thus, did not qualify as

expert testimony. Second, he argues that her testimony improp-

erly bolstered the victim's testimony. Third, he was "substan-

tially prejudiced as the doctor's testimony was improperly

applied in the state's summation." Fourth, he contends his

trial counsel was ineffective for failing to object to Dr.

A-3693-06T4
12

Medina's testimony prior to the second trial. We find no merit

to any of these contentions.

Preliminarily, we are satisfied that defendant's counsel

was not ineffective in failing to again object to Dr. Medina

testifying as an expert at the second trial. He filed an in

limine motion prior to the first trial. Had there been two dif-

ferent judges, it might have been necessary to refile the in

limine motion because the law of the case doctrine is discre-

tionary and flexibly applied in the interests of justice, State

v. Ruffin,
371 N.J. Super. 371, 391 (App. Div. 2004), and

another judge might had concluded that exclusion was appropri-

ate. However, it is unlikely that the same judge would have

ruled differently on a second in limine motion. As a result, we

will treat the in limine motion prior to the first trial as

though it had been filed prior to the second trial.

Defendant asserts that Dr. Medina's testimony respecting

the statements made to her by the victim were not made for pur-

poses of medical diagnosis or treatment and were thus inadmissi-

ble under N.J.R.E. 803(c)(4). He urges that Dr. Medina was con-

sulted for purposes of litigation and not for diagnosis and

treatment.

We evaluate these concerns in light of defendant's opening

statement to the jury. There, defense counsel stated that the

A-3693-06T4
13

victim made up a story because she wanted to get rid of her

father. She pointed out there was no DNA evidence, despite the

State's attempts to gather it. She informed the jury "there is

[sic] no physical findings whatsoever that links [K.S.] to sex-

ual assault on his daughter. But the biggest problem of all is

the lack of corroboration."

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

Statements made in good faith for pur-
poses of medical diagnosis or treatment
which describe medical history, or past or
present symptoms, pain, or sensations, or
the inception or general character of the
cause or external source thereof to the
extent that the statements are reasonably
pertinent to diagnosis or treatment.

This hearsay exception is premised upon the notion that

"the declarant is more interested in obtaining a diagnosis and

treatment culminating in a medical recovery than he is in

obtaining a favorable medical opinion culminating in a legal

recovery." Biunno, Current N.J. Rules of Evidence, comment on

N.J.R.E. 803(c)(4) (2009). Accordingly, hearsay obtained during

"evidence-gathering" medical consultations conducted purely in

preparation for litigation remains inadmissible. State in re

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

Because N.J.R.E. 803(c)(4) is based upon a presumed "treat-

ment motive," a statement by a declarant who is "unaware that

his or her statements will enable a physician to make a diagno-

A-3693-06T4
14

sis and administer treatment" lacks the requisite degree of

trustworthiness to qualify under this exception. R.S. v. Knigh-

ton,
125 N.J. 79, 87-88 (1991). Likewise, irrelevant statements

regarding the proximate cause of an injury are inadmissible

under this exception. State v. Pillar,
359 N.J. Super. 249, 289

(App. Div.), certif. denied,
177 N.J. 572 (2003); Dinter v.

Sears, Roebuck & Co., 252 N.J. Super. 84, 91-92 (App. Div.

1991). However, where the cause of an injury is relevant to

diagnosis and treatment, such hearsay statements are admissible.

Rose v. Port of New York Auth.,
61 N.J. 129, 138 (1972).

Here, the victim stated that she had pain, leaving the only

issue respecting the admissibility of her statements to Dr.

Medina whether they were "made in good faith for purposes of

medical diagnosis or treatment." Dr. Medina explained:

A. The medical information that [the
victim] provides about any complaints,
physical complaints with her genital region,
her body, stooling, voiding as well as what
mom can give me about anything regarding her
physical, her behavior, all aid in what I'm
looking for in the medical examination in
terms of any treatment, any further testing
that I need to do even if her exam is okay.
Things like that.

Q. And that information you obtained,
is it necessary for diagnosis and treatment
to [the victim]?

A. Absolutely.

A-3693-06T4
15

This unrebutted testimony established the medical relevancy

of the victim's hearsay statements elicited during the physical

Ibid.; see also Bober v. Indep. Plating Corp., 28
examination.

N.J. 160, 171-72 (1958) (patient's statement that he worked in a

facility containing large amounts of chrome dust was admissible

as relevant to diagnosis and treatment of allergy symptoms).

Dr. Medina was accordingly able to tailor her examination as the

victim only reported cunnilingus, not penetration, and did not

require laboratory testing for sexually transmitted diseases or

blood-borne illnesses.

We are not persuaded by defendant's contention that Dr.

Medina was consulted purely for litigation purposes, although it

is a close question. It is clear from Dr. Medina's testimony

that treatment would have been provided had the examination

demonstrated the need for it, whether that treatment was medical

or psychological. Furthermore, the evidence was relevant to

explain why there was no physical evidence, as defendant

asserted in his opening statement.

Defendant relies heavily on Pillar, supra,
359 N.J. Super.

at 287, arguing that under a very similar fact-pattern, a panel

of this court held that similar hearsay testimony was inadmis-

In Pillar, defendant was accused of sexually assaulting
sible.

P.T., a female minor, over a five-year period. Id. at 257-58.

A-3693-06T4
16

After the defendant was indicted, P.T. was taken to the Hirsch

Center where she was examined by Dr. Shaw. Id. at 287. P.T.

indicated to Dr. Shaw she had been sexually abused and that "the

kind of sexual abuse she was alleging included penile to genital

Id. at 287 (internal quotations omitted). At
area touching."

trial, Dr. Shaw related these hearsay statements and testified

that although her physical examination of P.T. was negative,

such a result was not abnormal or unusual. Id. at 288.

We concluded:

The record is not entirely clear as to why
P.T. was referred to Dr. Shaw for examina-
tion. On the present record, and in recog-
nition of it being the State's burden to
establish admissibility, we conclude that
the doctor's testimony was not admissible
under N.J.R.E. 803(c)(4).

We also cannot conclude that the inad-
missible testimony was harmless error . . . .
The history taken and related by the doctor
included P.T.'s statement that she had been
subjected to "penile to genital area
touching."

....

We do not rule that Dr. Shaw's testi-
mony in its entirety was inadmissible, only
that part relating to the specifics of the
sexual abuse as alleged by P.T. Dr. Shaw's
expert testimony as to whether her negative
physical examination of P.T. was consistent
with the abuse testified to by P.T. was and
remains acceptable.

[Id. at 289-90.]

A-3693-06T4
17

We do not find Pillar determinative. First, Pillar

involved a systematic pattern of sexual abuse over a period of

Id. at 258. Here, the victim experienced pain during
years.

cunnilingus and was seen by Dr. Medina at the Hirsch Center

within a matter of days. Second, we limited our holding in Pil-

lar to the facts of the case. Id. at 289. Although the facts

surrounding the referral to the Hirsch Center physician are

similar to the instant matter, as noted above, the facts of the

underlying abuse are strikingly dissimilar. As such, we find no

mistaken exercise of discretion in the admission of Dr. Medina's

testimony.

Defendant also argues that Dr. Medina's testimony was not

proper expert testimony because it was not beyond the ken of the

average juror. Expert testimony in the form of opinion is only

permitted if it will "assist the trier of fact to understand the

N.J.R.E. 702; accord
evidence or to determine a fact in issue."

State v. Jamerson,
153 N.J. 318, 337 (1998); State v. Odom,
116 N.J. 65, 71 (1989). A "conclusion that the jury could just as

easily have drawn for itself based on its own knowledge or

experience is subject to exclusion." United States v. Bois-

soneault,
926 F.2d 230, 233 (2d Cir. 1991); see also State v.

Nesbitt,
185 N.J. 504, 507 (2006); State v. Hackett,
166 N.J.
66, 83 (2001).

A-3693-06T4
18

Here, Dr. Medina explained the development of genitalia in

prepubescent females, the process of checking a minor female for

sexually transmitted disease, the general absence of medically

detectable injury from cunnilingus and fellatio despite a report

of pain, the reason for the sensation of pain, and the consis-

tency of her findings with the victim's account of the abuse.

These are medical facts and opinions beyond the ken of the aver-

age juror and properly the subject of expert testimony. We find

no error in admitting her testimony.8

Defendant next contends that Dr. Medina impermissibly

"vouched" for the victim's credibility when she opined that the

lack of injury was consistent with the victim's testimony. Set-

tled case law in New Jersey does not permit an expert witness to

bolster the testimony of another witness by vouching for his or

her credibility. State v. J.Q.,
252 N.J. Super. 11, 39 (App.

Div. 1991), aff'd,
130 N.J. 554 (1993). This is so because it

would improperly encroach upon the province of the jury's fact-

finding mandate. Ibid.; see also State v. Frisby,
174 N.J. 583,

594 (2002) ("[T]he mere assessment of another witness's credi-

8
Our resolution of this issue necessarily requires a
determination that defendant's claim of ineffective assistance
of counsel in this respect is without merit and could not have
caused him any prejudice at all. Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693
(1984); State v. Fritz,
105 N.J. 42, 58 (1987).

A-3693-06T4
19

bility is prohibited."); State v. Papasavvas,
163 N.J. 565, 653

(2000) ("It is not a medical function to weigh the truth of

assertions or statements." (citation and internal quotations

omitted)).

Unlike J.Q., supra,
252 N.J. Super. at 38-39, where there

was expert testimony "before the jury that [the expert] believed

the stories told by the children . . . and her reasons for that

belief," Dr. Medina merely opined that the lack of physical

trauma was consistent with the victim's reported patient history

and that she did not expect to find any abnormalities. Cf.

Rose, supra,
61 N.J. at 138. Indeed, the only time Dr. Medina

spoke to the victim's credibility was on cross-examination when

she testified she had no way of knowing if the victim was tell-

ing the truth. This is a far cry from an expert suggesting to

the jury they should believe or disbelieve another witness.

State v. Vandeweaghe,
177 N.J. 229, 239 (2003). We find no

merit to this claim.

We are also not persuaded that the prosecutor improperly

utilized Dr. Medina's testimony and vouched for the victim's

credibility in her summation when she argued that the victim

would not have submitted to a gynecological exam unless she had

been abused. Neither are we persuaded that the prosecutor's

closing statement that a child in the victim's position was

A-3693-06T4
20

going to be honest with a doctor deprived defendant of a fair

trial because, as he contends, there was no proof that Dr.

Medina was the victim's doctor at all. Nor did the prosecutor

inappropriately attempt to inflame the passions of the jury

against him when she reiterated Dr. Medina's testimony regarding

the victim's physical-examination procedure.

Prosecutors "are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to

the scope of the evidence presented." State v. Frost,
158 N.J.
76, 82 (1999) (citing State v. Harris,
141 N.J. 525, 559 (1995);

State v. Williams,
113 N.J. 393, 447 (1988)). To that end, a

prosecutor may make----and indeed is expected to make----a "vigorous

and forceful closing argument[] to [the jury]." Ibid. While

"it is improper for a prosecutor to contend in summation that [a

witness] had no motive to lie," prosecutorial misconduct gener-

ally must be so egregious that a defendant is denied a fair

State v. R.B.,
183 N.J. 308, 331-32 (2005). Thus,
trial.

[i]n determining whether a prosecutor's mis-
conduct was sufficiently egregious, an
appellate court must take into account the
tenor of the trial and degree of responsive-
ness of both counsel and the court to impro-
prieties when they occurred. Specifically,
an appellate court must consider (1) whether
defense counsel made timely and appropriate
objections to the improper remarks; (2)
whether the remarks were withdrawn promptly;
and (3) whether the court ordered the
remarks stricken from the record and

A-3693-06T4
21

instructed the jury to disregard them. Gen-
erally, if no objection was made to the
improper remarks, the remarks will not be
deemed prejudicial. The failure to object
suggests that defense counsel did not
believe the remarks were prejudicial at the
time they were made. The failure to object
also deprives the court of an opportunity to
take curative action.

[Id. at 332-33 (quoting Frost, supra, 158
N.J. at 82-84) (emphasis added).]

No objection was raised at trial to the prosecutor's

remarks, indicating that defendant's trial counsel did not

believe that they were prejudicial at the time they were made.

Ibid. Moreover, defendant concedes that "the gravamen of the

defense was that [the victim] was an incredible witness" prone

to lying and his counsel's closing argument focused on that

defense.

As the State points out, it is entitled to respond directly

to arguments raised by defense counsel during summation. See

State v. Vasquez,
374 N.J. Super. 252, 260-61 (App. Div. 2005)

(prosecutor's remarks, albeit somewhat excessive, responded

directly to defense counsel's suggestion that a State witness

either deliberately lied or stretched the truth to obtain a con-

viction and thus did not constitute reversible error). We find

no plain error in the prosecutor's summation as a whole.

A-3693-06T4
22

IV.

Defendant next argues that the "State violated both the

letter and spirit of N.J.R.E. 403 when it repeatedly elicited

testimony detailing the victim's allegations of abuse." He con-

tends that the testimony of V.A., Genna, and Dr. Medina regard-

ing the alleged abuse was "redundant, superfluous, and

unnecessary for the jury to determine the ultimate issue before

it."

A trial judge's evidentiary decisions are reviewed for a

mistaken exercise of discretion and are thus "subject to limited

appellate scrutiny." State v. Buda,
195 N.J. 278, 294 (2008)

(citations omitted). A mistaken exercise of discretion may be

found where the judge's "finding was so wide of the mark that a

manifest denial of justice resulted." State v. L.P.,
352 N.J.

Super. 369, 378 (App. Div.) (citation and internal quotations

omitted), certif. denied,
174 N.J. 546 (2002). Due to the trial

judge's "intimate knowledge of the case," State v. Ramseur,
106 N.J. 123, 266 (1987), only where there is a "'clear error of

judgment' should the 'trial court's conclusion' . . . be dis-

turbed." State v. Marrero,
148 N.J. 469, 483 (1997) (quoting

State v. DiFrisco,
137 N.J. 434, 496-97 (1994), cert. denied,

516 U.S. 1129,
116 S. Ct. 949,
133 L. Ed. 2d 873 (1996)).

A-3693-06T4
23

N.J.R.E. 403 provides that "relevant evidence may be

excluded if its probative value is substantially outweighed by

the risk of (a) undue prejudice, confusion of issues, or mis-

leading the jury or (b) undue delay, waste of time, or needless

presentation of cumulative evidence." Relevant evidence is any

evidence tending "to prove or disprove any fact of consequence

to the determination of the action," and is generally admissi-

ble. N.J.R.E. 401; N.J.R.E. 402. Unlike Rule 404(b), which is

a rule of exclusion, State v. Nance,
148 N.J. 376, 386 (1997),

Rule 403 by its plain terms strongly favors inclusion of evi-

dence, cf. State v. Morton,
155 N.J. 383, 453 (1998), cert.

denied,
532 U.S. 931,
121 S. Ct. 1380,
149 L. Ed. 2d 306 (2001).

Accordingly, evidence that is relevant and tends to establish

the proposition that it is offered to prove is generally

admissible. State v. Burr,
195 N.J. 119, 127 (2008).

While the "obverse is also valid, i.e., relevant evidence

loses some of its probative value to the extent it becomes more

'cumulative,'" Biunno, Current N.J. Rules of Evidence, comment 3

on N.J.R.E. 403 (2009), this determination lies within the broad

discretion of the trial judge, State v. Harris,
156 N.J. 122,

178 (1998), cert. denied,
532 U.S. 1057,
121 S. Ct. 2204,
149 L. Ed. 2d 1034 (2001).

A-3693-06T4
24

Defendant contends that admitting the testimony of three

witnesses in addition to the victim created a "parade of sepa-

rate horribles" that was "redundant, superfluous, and unneces-

sary for the jury to determine the ultimate issue before it."

We disagree.

As discussed above, Dr. Medina's testimony was properly

admitted under N.J.R.E. 803(c)(4) and she explained that the

absence of physical injury was consistent with the victim's ver-

sion of events despite the pain she experienced. The testimony

of the victim's mother was properly admitted as fresh-complaint

evidence. State v. Balles,
47 N.J. 331, 338-39 (1966), cert.

denied,
388 U.S. 461,
87 S. Ct. 2120,
18 L. Ed. 2d 1321 (1967);

see also Biunno, Current N.J. Rules of Evidence, comment 2 on

N.J.R.E. 803(c)(2) (2009). This evidence was not offered to

prove the truth of the allegations, but to establish that the

victim reported the assault, confided in someone, or sought sol-

State v. Bethune,
121 N.J. 137,
ace or comfort from someone.

148-49 (1990); State v. R.E.B.,
385 N.J. Super. 72, 88-89 (App.

Div. 2006). The testimony of Genna was similarly admitted.

Defendant did not object at trial that the testimony from

these witnesses would cause "undue prejudice, confusion of

issues, or mislead[] the jury or [would cause] undue delay,

waste of time, or needless presentation of cumulative evidence."

A-3693-06T4

25 N.J.R.E. 403. Yet, the trial judge excluded some of the testi-

mony sua sponte as duplicative. We thus review the admission of

the remaining testimony for a plainly mistaken exercise of dis-

cretion. Such an error would have to be clearly capable of pro-

State v. Black,
380 N.J. Super. 581,
ducing an unjust result.

592 (App. Div. 2005), certif. denied,
186 N.J. 244 (2006).

Trial counsel obviously did not believe that there was such an

error. State v. McGraw,
129 N.J. 68, 80 (1992). Defendant

simply has not proven "that the error was clear and obvious and

that it affected his substantial rights." Morton, supra,
155 N.J. at 421 (citations omitted). As a consequence, we affirm

the admission of the testimony from Dr. Medina, V.A. and Genna.

After carefully reviewing the record in light of the writ-

ten and oral arguments advanced by the parties, we conclude that

defendant's remaining arguments "are without sufficient merit to

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

Those arguments are that repeated instances of prosecutorial

misconduct denied defendant his rights to due process and a fair

trial and that the sentence imposed was excessive and unduly

punitive.

Affirmed.

A-3693-06T4
26

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