STATE OF NEW JERSEY v. J.L.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.L.H.,

Defendant-Appellant.

December 30, 2014

Submitted September 24, 2014 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-07-1317.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant J.L.H. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count three); and third-degree child endangering, N.J.S.A. 2C:24-4(a) (count four). On March 1, 2013, the trial judge merged all the offenses and sentenced defendant to ten years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on count one.

The principal issue defendant raises on appeal is whether certain testimony by the victim and her mother violated the fresh-complaint rules, an error defendant now claims was compounded by the trial judge's failure to instruct the jury regarding fresh-complaint evidence. Defendant also alleges the prosecutor made improper and prejudicial statements during his closing argument. Lastly, defendant asserts the court's failure to consider mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), warrants a remand for resentencing.1 We affirm, except that we remand the matter for resentence, as the judge gave no explanation for the merger of offenses.

I

At trial, the State presented three witnesses: Monmouth County Prosecutor's Office Detective Andrea Tozzi; the victim, P.S.; and the victim's mother, M.W. The first to testify, M.W. stated that she began to date defendant in June or July 2010. The relationship progressed to the point where they began to discuss "possibly living together." M.W.'s household consisted of then thirteen-year-old P.S., and her eighteen-year-old son, who would occasionally stay in the apartment.

M.W. said defendant told her that he wanted to

build a bond with [P.S.]. He said he never had a daughter before so he kind of wanted to get close to her so that she would be comfortable once the transition would happen and he would move in with us.

. . . .

He called me and asked me what I thought of him taking [P.S.] out for the day and spending time with her one on one.

As a result, towards the end of February or early March 2011, defendant took P.S. bowling and to a meal at Red Lobster.

M.W. further testified that one Friday night in early May 2011, she, defendant, and P.S. were watching a movie in the living room when a friend called her cell phone. Defendant asked her to take the conversation into the bedroom so as not to interrupt the movie. When she returned, defendant "ran to me, you know, very suspicious, just really nervous." He seemed "in a panic," and almost crashed into her. Initially, defendant claimed he was flustered because he had been looking at pictures of women on his cell phone, and then confessed that he had been on the phone with another woman.

Because P.S. had a sleepover the following day, a Saturday, M.W. did not speak to her about the incident until Sunday afternoon. When M.W. picked P.S. up from the sleepover, P.S. disclosed that defendant had "sexually abused her." That Monday, M.W. went to work, but asked for a half day so she could take P.S. to the police. In the morning she received a call from the school, as P.S. "had already reported it to someone."

M.W. also testified regarding her police-recorded phone call to defendant confronting him about her daughter's allegations. The tape of the hour-long phone intercept was played to the jury. Detective Tozzi was the witness through whom the State introduced the tape.

M.W. was extensively cross-examined regarding her continued contact with defendant, the fact that she canceled a check repaying money he had loaned her, and her knowledge about his relationships with other women while the two were dating. Additionally, defense counsel asked M.W. several questions about the fact that P.S. did not disclose the alleged conduct to her family or friends.

At the time of trial, P.S. was fifteen. On direct examination, she described five separate occasions during which defendant engaged in a variety of sexual behaviors including: fellatio, groping under and over clothing, kissing, digital penetration, exposing his genitals to her, and an attempt at intercourse, which ended when she said it hurt. P.S. commented that when her mother was around, defendant would act "like a daddy figure," but when her mother was absent, he would act "like I was his girlfriend. Like I was his lover or something."

P.S. told her mother about the incident only because her mother "kept asking." She said she did not specifically describe the sexual assaults because she "felt embarrassed." P.S. also told her mother she did not want to report the matter to police because she was "scared." The following day, however, she disclosed the assault to a school counselor. It was not until the second interview with the police, conducted by a female detective, that she explicitly detailed defendant's conduct.

Like with M.W., on cross-examination defense counsel extensively probed P.S.'s failure to tell anyone, including her father, brother, and friends. She was also examined at some length about the omissions in her first statement to the police as compared with her second statement.

When confronted by M.W. during the recorded phone conversation, defendant initially responded that the child "did come on to me." He said that P.S. told him she wanted to have sexual relations with him, and that she had previously had relations with an eighteen-year-old boy. Defendant also claimed that P.S. asked to see his penis and touched it, and that she put his hand on her breast. Later in the conversation, defendant denied any "physical contact" or "French kissing," but said that P.S. had given him a "passionate kiss" when they went bowling.

Although he denied P.S.'s version of the encounter, defendant repeated four times during the phone call that he was "not saying that [P.S. is] a liar." He described P.S. as a "promiscuous young lady" who abused drugs and alcohol

No . . . I'm not trying to ruin her credibility . . . (inaudible) . . . I believe her . . . but what I'm saying to you is . . . the things that you're saying about, "I believe this, and I believe that, and I can't believe that she would do this." Well, what I'm trying to show you is that there is an alternative; there's a lot of things you couldn't believe that, "Oh shit now I know". So for you to say that "I can't believe she would make something up like this, I can't believe she would do this" . . . but you couldn't believe this and you couldn't believe that . . . well, this is different, it's not different! I'm not trying to ruin her credibility.

. . . .

She didn't really do anything. The way she came on to me, not, not physically. It was more talking; the things that she was saying.

When M.W. said that defendant should have told her that P.S. put his hand on her breast, he responded: "No, but you know what? Now . . . in hindsight, I shouldn't never ever took her out, now everybody should go back to hindsight . . . ." He asserted that P.S. thought of him as a "boyfriend," and that she had told him that her dream was for him to take her to a hotel room to have intercourse.

Defendant repeatedly asked about the future of his and M.W.'s relationship. At times defendant's statements were confusing. The conversation ended as follows

Female voice: So you think that she'd be comfortable with you knowing that you didn't own what exactly happened? So that she shows that she's at fault for everything? Like she's lying about everything?

Male voice: I'm not say . . . I feel like that . . . in time . . . I think that in time (inaudible) if we stay together. Time heals all wounds . . .

Female voice: What wounds? What wounds though? If . . . if . . . if you tell . . . If you're telling me she's lying, there is no wounds to heal.

Male voice: There is wounds to heal. Because . . . You know cause (inaudible) heal and just . . . just the fact that. . . .

At the charge conference, defense counsel requested the "false in one false in all" instruction. Model Jury Charge (Criminal), "False in One False in All" (2013). The court agreed. No instruction was sought or given with regard to the testimony defendant now characterizes as freshcomplaint evidence; no objection was made to that portion of M.W.'s or P.S.'s testimony.

In his closing statement, defense counsel vigorously attacked the victim's and her mother's credibility. He pointed out that it was "strange" that P.S. made no disclosures to her friends and family after the first alleged event. Counsel reminded the jury that the victim's mother had previously pled guilty to second-degree child endangering, and went on to describe the jury charge regarding the conviction's impact on the jury's assessment of her credibility. Model Jury Charge (Criminal), "Credibility Prior Conviction of a Witness" (2003).

Defense counsel also pointed out to the jury that M.W. did not immediately contact the police once informed, but in fact, went to work the following day. He theorized that she was nothing more than a woman scorned, and that reasonable doubt in the case arose from the State's witnesses' lack of credibility. As counsel put it, "these people are lying all over the board." He attacked P.S.'s credibility, repeating that she told no one about the assaults until pressed by her mother. Counsel also reminded the jury about the discrepancies between P.S.'s first and second statements to the police.

The prosecutor began his summation by acknowledging the defense's theory that the victim and her mother were liars. He observed that defendant did not characterize P.S. as a liar at any time during the hour-long phone conversation. The prosecutor also said

You know what, we're all faced in our lives with tragedies. This area suffered through a great tragedy recently and there's no one who has not been touched by it in one way or another, and whether it's illness or death of a close family member, a traumatic event like the storm we all went through, or traumatic event like a child who's been sexually abused by your mother's boyfriend, a woman -- a man you know she loves and cares about. How do you react?

You know, I guess, in the better world, it would be nice if we could all script these things out, this is what you do, you immediately go and tell the police, you immediately go and tell someone. You don't be confused about it. You can go right there and go from beginning to end and say exactly what happened. You know what, I guess in a better world, that's how it would work. In the best world, we wouldn't be having this conversation, but that's not the world we live in.

You know, we live in a world where people react to these things differently. But there is someways that are the same. I could recall going through high school and having a class that talked about, you know, how people deal with this tragedy, and it's kind of a template. Again, it's not perfect, but how do we approach anger, denial, perhaps bargaining acceptance. And if you look at how [P.S.] approached this, you heard that. Yeah, she was angry. She was angry. She wasn't going to cry.

She was confused about what to do, and scared. But that [thirteen]-year-old girl, [thirteen]-year-old girl did the best to manage what she could do. And, perhaps, with a bit of denial. Okay, it happened once, maybe it won't happen again. And then it happened again, so you put it off. Perhaps a little bit of bargaining. Well, this isn't so bad, I can deal with. If I tell, the consequence are going to be worse. I'm going to be embarrassed. Someone might get hurt. Someone might get in trouble. Not so much the defendant, but her brother, her father. What's her mother going to say? Jeez, you know, this is someone mom loves and cares about. In fact, she had me go out with him. She put me at risk to do this. I don't know if she's going to believe me.

Of course, she was reluctant. Of course, there was denial. Of course, she was reluctant to come forward and she was embarrassed and don't downplay this. She didn't tell her girlfriends about this. This is a girl who at [thirteen] was asked in [her] first statement, do you know what an erection is and she said no. She does now, thanks to [defendant], and, of course, this investigation and this testimony that she wanted nothing to do with. So she does now.

She indicated she didn't want to talk about it. She was reluctant to talk about it. We went back and forth on cross-examination -- and you know what, ladies and gentlemen, at the very beginning you were asked a question, what do you think of the criminal justice system. And I'm not sure if any of the jurors are on here anymore who said, you know, it really depends on your representation. And I've got to tell you, quite frankly, I'm glad I was seated over here and not up there when [defense counsel] was cross-examining her.

After reviewing the evidence, the prosecutor also told the jury

But, ladies and gentlemen, when you go back into that room, with all due respect to [defense counsel], the presumption of innocence is gone. You've heard testimony in this case, you've received evidence in this case, you've heard from the child, [thirteen]-year-old [P.S.], what happened to her, you heard from her mother how she first discovered it, something was not right and she knew to press, and that's how the secret came out and that's why we're here today.

At the sentencing hearing, the prosecutor noted that defendant had been previously convicted of second-degree sexual assault. As a result of that conviction, defendant was on community supervision for life and had violated his conditions on "multiple" occasions. Although the Adult Diagnostic and Treatment Center evaluation, conducted after this conviction pursuant to N.J.S.A. 2C:47-1, expressed some "serious concerns and issues," defendant's conduct was not found to be characterized by a pattern of "repetitive and compulsive" behavior. The prosecutor also mentioned that he did not agree with the trial judge's merger.

When exercising his right of allocution, defendant said he was innocent and thanked the mother of one of his children for taking care of the child in his absence. Prior to sentencing defendant, the trial judge noted his four prior indictable convictions, including three for violating community supervision for life, and prior domestic violence restraining orders. None of his three children resided with him.

The judge found aggravating factor three, the risk defendant will reoffend, N.J.S.A. 2C:44-1(a)(3), aggravating factor six, the extent and nature of his prior criminal history, N.J.S.A. 2C:44-1(a)(6), as well as aggravating factor nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). On the subject of merger, he said only the following

[T]he jury, in finding you guilty of a second degree sexual assault by physical force in Count [One], may have and almost certainly took into consideration or that particular assault encompassed the commission of all of the other offenses for which you were charged. And for that reason, for purposes of sentencing, Counts [Two], [Three] and [Four] will merge with Count [One].

The judge then imposed a ten-year sentence on defendant subject to NERA.

II

On appeal, defendant raises the following points for our consideration:2

POINT I

THE TRIAL COURT ERRED IN FAILING TO EXCLUDE P.S.'S ALLEGED DISCLOSURES REGARDING J.L.H. MOREOVER, EVEN IF THIS COURT FINDS THAT THE STATEMENTS QUALIFIED AS FRESH[-]COMPLAINT EVIDENCE, THE TRIAL COURT'S OMISSION OF A FRESH[-]COMPLAINT JURY CHARGE DEPRIVED J.L.H. OF A FAIR TRIAL. (Not Raised Below).

A. P.S.'s Alleged Statements to M.W. and the School Counselor Regarding J.L.H.'s Purported Conduct Were Improperly Introduced at Trial, as These Communications Did Not Qualify as Fresh[-]Complaint Evidence.

B. Even if P.S.'s Purported Statements to M.W. and the School Counselor Had Been Admissible as Fresh[-]Complaint Evidence, the Trial Judge Committed Reversible Error When Failing to Provide the Jury with a Fresh[]Complaint Instruction.

C. The Introduction of P.S.'s Unreliable Out-of-Court Complaints and Omission of a Fresh[-]Complaint Jury Instruction Rose to the Level of Plain Error Warranting Reversal.

POINT II

J.L.H. WAS DEPRIVED OF A FAIR TRIAL DUE TO PERVASIVE PROSECUTORIAL MISCONDUCT. (Not Raised Below).

A. The Assistant Prosecutor Injected His Personal, Unqualified Opinion Regarding P.S.'s Psychological Adaptation Into the Case, Thereby Insinuating that She Suffered From Child Sex Abuse Accommodation Syndrome.

B. The State Impermissibly Appealed to the Jury's Emotions.

C. The Assistant Prosecutor Misadvised the Jury That J.L.H. Was Stripped of the Presumption of Innocence Once Deliberations Commenced.

D. The State's Denigration of Defense Counsel Further Prejudiced J.L.H.'s Right to a Fair Trial.

E. The Cumulative Effect of the Prosecutorial Misconduct Constitutes Plain Error.

POINT III

IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE LOWER COURT NEGLECTED TO CONSIDER MITIGATING FACTOR ELEVEN WHEN IMPOSING THE PRESENT SENTENCE. THE MATTER SHOULD ALSO BE REMANDED TO CORRECT THE ERRONEOUS LANGUAGE ON THE JUDGMENT OF CONVICTION INDICATING THAT THE SENTENCE WAS IMPOSED AS A RESULT OF A NEGOTIATED PLEA AGREEMENT.

Rule 2:10-2 provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

A.

Defendant's first point on appeal is that the trial court erred in its admission of M.W.'s testimony that P.S. told her that defendant had "sexually abused" her, and P.S.'s testimony that she disclosed the events to her mother and to her school counselor, who immediately contacted police. The testimony was brief because neither witness repeated what was said.

Fresh-complaint evidence consists of statements regarding a sexual assault made to a trusted confidant, within a reasonable time after the alleged incident, which are "spontaneous and voluntary." State v. Hill, 121 N.J. 150, 163 (1990). As we have said, the trial judge did not instruct the jury as to fresh-complaint evidence. See Model Jury Charges (Criminal), "Fresh Complaint" (2007). Nor did defense counsel object to the testimony, as he in fact incorporated it into the defense theory.

The model jury charge on fresh-complaint evidence reads in relevant part

This testimony [is] permitted for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that the sexual offense occurred nor proof that [the victim] was truthful. It merely dispels any negative inference that might arise from (his/her) assumed silence. It eliminates any negative inference that (his/her) claims of having been sexually assaulted are false because of (his/her) assumed failure to have confided in anyone about the sexual offense.

As the model charge explains, the fresh-complaint rule allows the State to admit hearsay testimony, namely, the victim's out-of-court statements about a sexual assault made soon after the assault occurs. See Hill, supra, 121 N.J. at 163-66. The purpose of admission is "to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime. Detailed testimony is impermissible under the rule." State v. Bethune, 121 N.J. 137, 146 (1990). Where the State presents fresh-complaint testimony, the corresponding instruction should be given regarding the role such hearsay plays in the jury's assessment of the proofs. Id. at 148.

But the "failure to give a proper limiting instruction on the use of fresh[-]complaint testimony [is] not plain error." State v. Buscham, 360 N.J. Super. 346, 359 (App. Div. 2003) (citing State v. Tirone, 64 N.J. 222, 227 (1974)). Where the State presents other proofs of defendant's guilt, and there is neither detailed testimony nor comment on the fresh complaint, the court's failure to instruct the jury on fresh complaint is not reversible error. Tirone, supra, 64 N.J. at 227; Buscham, supra, 360 N.J. Super. at 359-60.

In this case, the testimony that P.S. told her mother and school counselor about the assault does not neatly fit the definition of fresh-complaint evidence. P.S.'s statement to her mother was the product of M.W. pressing her daughter because of her concern about defendant's unusual reaction to her presence. The statement made to M.W. was not "spontaneous and voluntary." Hill, supra, 121 N.J. at 163. The relationship between P.S. and the school counselor is unknown. Whether P.S.'s disclosure at school was made to a trusted confidant is a fact not found in the record.

Additionally, the State did not present the evidence as freshcomplaint testimony, i.e. to dispel the suggestion that because of the victim's silence the charged crimes did not occur. Instead the State proffered the testimony to explain how the matter came to the attention of the police. M.W.'s statements regarding what P.S. told her were not introduced to prove the truth of their content. The statements were elicited solely as part of the narrative describing how defendant came to be charged. The statements were minimal and not detailed.

The damning evidence the State relied upon was found in M.W.'s testimony about defendant's strange behavior on the Friday evening, in the phone call that the police recorded, and in P.S.'s testimony regarding the five assaults. Thus the omission of the fresh-complaint instruction was not prejudicial either. Neither the statements nor the failure to give the instruction were plain error leading to the conclusion that the jury was thereby led to a result it might not otherwise have reached. See Macon, supra, 57 N.J. at 336. In light of the State's strong proofs, the admission of the testimony and omission of the instruction were inconsequential.

Furthermore, during the cross-examinations of M.W. and P.S. and during closing statements, defense counsel repeatedly stressed P.S.'s failure to disclose the assault to anyone else, such as her father, brother, friends, or other confidantes, as establishing her lack of credibility. Defense counsel built its defense theory in part on P.S.'s silence, thereby taking advantage of the notion that P.S.'s "claims of having been sexually assaulted are false because of [her] [] failure to have confided in anyone about the sexual offense," until pressed by her mother.

In response, in his closing, the prosecutor offered reasons for P.S.'s silence that the jury could consider, such as fear or embarrassment, but did not mention her disclosure to her mother or the counselor as a countervailing consideration. When he mentioned P.S.'s disclosure to her mother, it was in the context of M.W. having sensed something was amiss when she walked back into the living room and, as a result, asked her daughter about it. In other words, defense counsel's strategy of attacking the credibility of the victim and her mother relied upon the absence of a "fresh complaint," while to refute the argument, the State only offered possible reasons for her silence. The State did not argue that P.S.'s statements to her mother and the counselor meant anything at all.

B.

Defendant contends that he was deprived of a fair trial due to the prosecutor's inappropriate comments. A "[d]efendant's allegation of prosecutorial misconduct requires that [the court] determine whether the trial court violated his right to a fair trial." State v. Jackson, 211 N.J. 394, 407 (2012). "'A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved.'" State v. McGuire, 419 N.J. Super. 88, 139 (App. Div.) (quoting State v. Williams, 113 N.J. 393, 447-48 (1988)), certif. denied, 208 N.J. 335 (2011). "It is as much a prosecutor's duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Ibid. "But '[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).

If a defendant does not make a timely objection, a prosecutor's "remarks usually will not be deemed prejudicial . . . . [and] [a] [d]efendant must show plain error to be entitled to a new trial." Id. at 140 (internal citations omitted). "There must be 'a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached.'" Ibid. (quoting State v. Daniels, 182 N.J. 80, 102 (2004)). We apply the plain error standard because defendant did not object to the prosecutor's closing argument.

Defendant identifies several statements he asserts warrant reversal. He claims, for example, it was improper for the prosecutor to have said that P.S. was "confused about what to do, and scared." This statement just reiterated P.S.'s own words. The prosecutor actually repeated P.S.'s testimony on cross-examination regarding the reasons she did not tell anyone about the assault that she was embarrassed and afraid, that someone might get hurt or in trouble.

The prosecutor also mentioned the word "denial," and observed that it was not surprising that after P.S. recovered from making her first statement to the police she would have given more details in the second statement. He said that she was traumatized by the events, perhaps an improper expression of his opinion but, given that sexual conduct towards children is a crime, not prejudicial. Hence we do not agree with defendant that these comments were "nothing more than a cunning attempt to inject [the prosecutor's] own personal opinion into the case." They were comments on the evidence, albeit strained at times.

Defendant also argues that the prosecutor improperly attempted to introduce the notion of Child Sexual Abuse Accommodation Syndrome (CSAAS) into the case to explain P.S.'s reactions to the jury. We think that conclusion is speculation not supported by the record as it assumes that jurors would be familiar with the theory. The prosecutor's comments related to the reaction any person would have had to a traumatic event.

Defendant objects to the State's reference to life "tragedies" and Hurricane Sandy as impermissible efforts to appeal to the jury's emotions. The comments were not, however, of the type of inflammatory and highly emotional appeals "which have the capacity to de[t]er the jury from a fair consideration of the evidence of guilt." State v. W.L., 292 N.J. Super. 100, 111 (App. Div. 1996) (internal citations and quotations omitted). See, e.g., State v. Bruce, 72 N.J. Super. 247, 251-52 (App. Div. 1961) (finding reversible error where prosecutor referred to the defendants as "animals" and "brutes"); State v. Williams, 113 N.J. 393, 448-53 (1988) (holding prosecutor's summation in which he focused on the victim's virtues and impending marriage served only to inflame the jury); State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.) (finding reversible error in prosecutor's closing argument "that it was the function of the jury to protect young victims of alleged sexual offenses as a group"), certif. denied, 134 N.J. 485 (1993). Similarly, the prosecutor's suggestion to the jury that they imagine P.S.'s difficulty with coping was perhaps unnecessary, but in the final analysis, only an effort to explain the witness's struggles while testifying about sensitive subjects in front of the jury. This does not rise to the level of an inflammatory, improper appeal to juror emotions.

Prosecutors are obliged to "not make inaccurate legal or factual assertions during a trial." State v. Smith, 167 N.J. 158, 178 (2001). A defendant is presumed innocent until a guilty plea is returned. State v. Daniels, 182 N.J. 80, 92 (2004). The prosecutor said to the jury in his closing statement that when the jury would retire to deliberate, "with all due respect to [defendant], the presumption of innocence is gone." Had that comment stood alone, it would be a potentially consequential misstatement of the law. Put in context, however, it was a poorly phrased suggestion that the proofs the prosecutor had just summarized were overwhelming evidence, beyond a reasonable doubt, that defendant was guilty. The judge in his closing instruction told the jury the burden of proof was beyond a reasonable doubt and that the burden remained with the State until such time that all the jurors, after deliberation, reached a conclusion as to guilt or innocence. We presume that instruction was followed. See State v. Nelson, 173 N.J. 417, 447 (2002) ("there can be no assumption that the jury did not faithfully follow the court's admonition" (internal citation omitted)).

Defendant also contends that the prosecutor "impermissibly denigrated defense counsel" when he said, in discussing the cross-examination of the victim, that he was glad he was seated at counsel table and not in the witness box. We do not interpret this as denigrating defense counsel. Defense counsel vigorously attacked the State's witnesses on cross-examination, attempting to establish that they were untruthful. The prosecutor was merely commending him for that effort. This argument also lacks merit.

Finally, defendant argues that the cumulative effect of the prosecutorial misconduct warrants reversal. None of the comments standing alone were prejudicial, and given their nature, we do not agree that in combination they warrant reversal.

C.

Defendant urges this court to remand for resentencing because the trial judge, while weighing the applicable aggravating factors, did not consider defendant's three children and find mitigating factor eleven. The record does not support the claim that in this defendant's situation, the effect on his family would be any different than that on the children of every other person who is imprisoned. According to the presentence report, defendant lived with none of his children, a fact reiterated by the trial judge, and which elicited no correction.

The victim in this case testified about five incidents occurring on five different dates during which either defendant engaged in sexual contact with penetration or had criminal sexual contact, and thus endangered her welfare. P.S. testified that on the first occasion, defendant "grabbed" her neck, pushed her down onto his body, and then attempted to forcibly have intercourse, stopping only when the victim told him that "it hurt" after attempts in two positions. The indictment alleged second-degree sexual assault in February 2011 by force or coercion; second-degree sexual assault on numerous dates between February and April 29, 2011, when the victim was thirteen and defendant was at least four years older; fourth-degree criminal sexual contact; and third-degree endangering the welfare of a child by engaging in sexual conduct within that same timeframe. The verdict sheet the jury used to report their verdict tracked the indictment.

The purpose of merger is to avoid double punishment for a single offense. See N.J.S.A. 2C:1-8. We cannot discern from the judge's very brief analysis of the subject, the reasons that led him to conclude that the offenses should be merged. More was required. See State v. Cole, 120 N.J. 321, 327 (1990) (holding that in applying a flexible approach to merger, trial courts must "focus on the elements of crime and the Legislature's intent in creating them, and on the specific facts of each case" (citations omitted)). Therefore the matter is remanded for reconsideration of the merger issue.

Affirmed as to the convictions, remanded for resentence.

1 Defendant also contends the matter should be remanded so the judgment of conviction can be corrected to reflect defendant's conviction as having resulted from a trial, not a guilty plea. The correction can be made on remand.

2 Defendant's pro se submission did not raise any points of error. It consisted of identifying six places in the State's brief which he alleged were inconsistent with the record. We consider the statements not to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).