STATE OF NEW JERSEY v. C.B

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5090-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

C.B.,

Defendant-Appellant.
_________________________

Submitted January 13, 2020 – Decided May 1, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-06-0969.

Moriarty Law Firm, attorneys for appellant (Charles
Moriarty, of counsel; Timothy C. Moriarty, on the
brief).

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).

PER CURIAM
Defendant C.B. was charged in a nine-count indictment after his daughter,

W.B.,1 reported to the Ocean County Prosecutor's Office in November 2016 that

he had sexually assaulted her on numerous occasions between 2005 and 201 2

when she was between the ages of six and twelve. 2 Defendant appeals from his

conviction by jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1) (counts one, four and seven); second-degree sexual assault, N.J.S.A.

2C:14-2(b) (counts two, five and eight); and second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a)(1)(counts three, six and nine). On

appeal, he argues:

[POINT I]

V.H. AND J.M. SHOULD NOT HAVE BEEN
PERMITTED TO TESTIFY BECAUSE THEIR
TESTIMONY DID NOT MEET THE
REQUIREMENTS OF THE FRESH-COMPLAINT
EXCEPTION TO THE HEARSAY RULE.

[POINT II]

DEFENDANT WAS DENIED A FAIR TRIAL
BECAUSE THE TRIAL COURT IMPROPERLY
PERMITTED HEARSAY EVIDENCE BY
NUMEROUS WITNESSES, AND IMPROPERLY

1
We use initials to protect the privacy of W.B. See N.J.S.A. 2A:82-46; R. 1:38-
3(9), (12).
2
W.B.'s date of birth is March 30, 1999.
A-5090-17T4
2
ALLOWED EVIDENCE AND TESTIMONY THAT
WAS MORE PREJUDICIAL THEN PROBATIVE.

A. Testimony by Detective Alexander
Regarding Defendant Purchasing Airline
Tickets to Brazil and Defendant Traveling
to Various States Outside of New Jersey.

B. Court Improperly Permitted the State
to Introduce Recorded Telephone
Conversation Between W.B. and
Defendant over the Defense's Objection to
Same.

[POINT III]

THE PROSECUTOR IMPROPERLY VOUCHED FOR
THE TESTIMONY OF A KEY WITNESS IN THE
CASE DEPRIVING DEFENDANT OF HIS RIGHT
TO A FAIR TRIAL.

[POINT IV]

DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND THE TRIAL COURT'S
DETERMINATIONS AND FINDINGS AS TO THE
APPLICABLE AGGRAVATING AND MITIGATING
FACTORS ARE CLEARLY ERRONEOUS AND NOT
SUPPORTED BY COMPETENT CREDIBLE
EVIDENCE; THEREFORE, DEFENDANT'S
SENTENCE MUST BE VACATED.

A. The Trial Court Engaged in
Impermissible Double-Counting in
Finding Aggravating Factor Two Applied
to Defendant.

A-5090-17T4
3
B. The Trial Court Improperly
Evaluated Defendant's Risk to Reoffend
and the Trial Court's Determination that
Aggravating Factor Three Applied is Not
Supported by Competent Credible
Evidence.

C. The Trial Court's Findings with
Respect to Aggravating Factor Nine Are
Not Supported by Competent Credible
Evidence.

D. The Court's Imposition of a Sentence
at the Upper Limits Cannot Stand as the
Court Improperly Determined the
Aggravating Factors Outweighed the
Mitigating Factors.

We affirm but remand for resentencing.

Following the State's in limine motion to admit the testimony of two

witnesses to whom W.B. had disclosed defendant's actions, and defendant's

cross-motions to bar those witnesses' testimony, the trial court heard testimony

at an N.J.R.E. 104 hearing from both witnesses. Defendant argues the court

erred in ruling their testimony was admissible as fresh complaint; both testified

at trial, as did W.B.3

3
Fresh-complaint testimony is admissible only if the victim testifies at trial.
See State v. Hill, 121 N.J. 150, 151 (1990).
A-5090-17T4
4
We review a trial court’s decision to introduce fresh-complaint testimony

at trial for an abuse of discretion. See State v. Bethune, 121 N.J. 137, 145-48

(1990). "Trial judges are entrusted with broad discretion in making evidence

rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003). As

such, "[a] reviewing court should overrule a trial court's evidentiary ruling only

where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295,

357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).

Although an out-of-court statement offered to prove the truth of the matter

asserted therein is inadmissible hearsay, N.J.R.E. 801, fresh-complaint

testimony by the victim of a sexual offense is admissible for a narrow purpose:

"to negate the inference that the victim's initial silence or delay indicates that

the charge is fabricated," State v. R.K., 220 N.J. 444, 455 (2015). "[T]o qualify

as fresh-complaint evidence, the victim's statement must have been made

spontaneously and voluntarily, within a reasonable time after the alleged assault,

[and] to a person the victim would ordinarily turn to for support." Ibid. "A

witness may testify only to the general nature of the complaint, and unnecessary

details of what happened should not be repeated." State v. W.B., 205 N.J. 588,

617 (2011). Because fresh complaint evidence cannot be used to bolster the

victim’s credibility, R.K., 220 N.J. at 456, trial courts "may, but need not,

A-5090-17T4
5
exclude cumulative fresh-complaint testimony that is prejudicial[,]" Hill, 121 N.J. at 170.

W.B. made a non-specific disclosure that defendant "had done things to

her which was implied in a sexual manner . . . [and] that he would hold her down

in his bed," to her lifelong, close friend, V.H., when they were younger than ten

years of age—and while defendant's sexual assaults of W.B. were ongoing.

Defendant does not claim that disclosure did not meet the criteria for admission

as fresh complaint. Defendant argues V.H.'s testimony was unreliable because

her version of events differed significantly from W.B.'s recollection and

included "force, fear and violence" never mentioned by W.B. Defendant further

contends a subsequent conversation between W.B. and V.H. "as [fifteen]-year-

olds," and an inquiry of V.H. by W.B.'s mother, K.B., if W.B. had ever said

anything about defendant, tainted the initial fresh complaint.

These bald assertions do not render V.H.'s testimony inadmissible.

Defendant concedes in his merits brief:

V.H. never revealed what W.B. said to her on the
second occasion other than that "she had told me she
told her boyfriend about [the sexual assaults]." . . . V.H.
never delineated what information she received from
W.B. on that second occasion, what additional details
she gleaned from the second conversation, and how that
information may have caused her to revise her

A-5090-17T4
6
understanding of the sexual abuse W.B. was alleging to
have experienced.

Not only is defendant's argument unsupported by the record, it fails to

consider that fresh-complaint testimony "is not evidence that the sexual offense

actually occurred, or that [a victim] is credible. It merely serves to negate any

inference that because of [a victim's] assumed silence, the offense did not

occur." Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007).

Thus, because fresh-complaint testimony "does not prove the underlying truth

of the sexual offense," ibid., and the account of the disclosure is limited to "the

general nature of the complaint," avoiding "unnecessary details of what

happened," W.B., 205 N.J. at 617, it is of no moment that V.H.'s testimony may

have differed from W.B.'s full disclosure. The State did not introduce, and the

jury did not hear, detailed testimony from V.H., including her statement about

"force, fear and violence." The trial court did not abuse its discretion in

admitting V.H.'s fresh-complaint testimony.

J.M. was W.B.'s boyfriend of approximately four to five months in the

summer of 2016. Defendant also argues the trial court erred in allowing J.M.'s

fresh-complaint testimony that W.B. and he were "talking on the phone one

night and she was very clearly upset"—"crying, very anxious [and] scared"—

causing him to ask "repeatedly," "a few times" "what the problem was" "because

A-5090-17T4
7
[he] could see very clearly that it was not nothing wrong or not something that

should be taken lightly." W.B. finally told him her father had "molested her"

from the time she was six-years-old until she was twelve. 4 J.M testified he did

not ask W.B. if she "was sexually abused by her father." J.M. said he

immediately drove to W.B.'s home and continued the conversation; W.B. told

J.M. what her father made her do "and that this was probably a huge cause of all

of her anxiety."

Defendant contends J.M.'s testimony did not meet the fresh-complaint

criteria for admissibility because he repeatedly questioned W.B. before she

disclosed and that disclosure was made approximately four years after the

defendant's last alleged assault in 2012. We disagree. As the trial court found,

J.M. repeated his questions without knowing "anything about an alleged

complaint or problem that the victim had with . . . defendant." The court

discounted J.M.'s prior statement to a detective that he "pushed [W.B.'s

disclosure] out of her," finding from his testimony "that that was really not the

proper explanation as to what happened," and that J.M. did not interrogate or

force W.B. to disclose her father's abuse. Indeed, J.M.'s repeated questions to

4
J.M. described the molestation in more detail at the N.J.R.E. 104 hearing.
Throughout this decision we have refrained from describing the sordid sexual
acts, only because a vivid account is not required for our determination.
A-5090-17T4
8
his distraught girlfriend were aimed at finding out what was upsetting her.

"[G]eneral, non-coercive questions do not rob a complaint of its admissibility

under the fresh-complaint rule." Bethune, 121 N.J. at 144 (holding questions

such as, "what’s wrong?" and "[d]id he do something to you?" did not constitute

a coercive line of questioning (quoting People v. Evans, 173 Ill. App. 3d 186,

191 (1988))).

The disclosure, some four years after the last alleged act, bears close

scrutiny. Notwithstanding that fresh complaints of sexual assault must be made

within a reasonable time, that requirement "must be 'applied more flexibly in

cases involving children than in [cases] involving adults.'" W.B., 205 N.J. at
618 (alteration in original) (quoting State v. L.P., 352 N.J. Super. 369, 382 (App.

Div. 2002)). In deference to a child's "special vulnerability to being cajoled and

coerced into remaining silent by their abusers, courts allow children additional

time to make a fresh complaint." Bethune, 121 N.J. at 143. Such an

accommodation also recognizes "the reluctance of children to report a sexual

assault and their limited understanding of what was done to them." State v. P.H.,

178 N.J. 378, 393 (2004).

The trial court found W.B.'s disclosure to J.M. was made within a

reasonable time considering the difficulty young victims have in disclosing

A-5090-17T4
9
abuse by someone with whom they have a close relationship. The court

explained the timing of the disclosure

was reasonable because a relationship was developing
between [W.B. and J.M.] for some period of time while
they were dating, and that trust between two people
developed to the point where . . . the statement was
made within a reasonable time of the occurrence
because the relationship became stronger and clearly
there was more trust between the two individuals.

Noting the complexity of such situations, the trial court recognized that the

development of sufficient trust is an "ongoing process," making the time period

reasonable.

We have recognized that a greater

lapse of time between the assault and the complaint
may be permissible if satisfactorily explainable by the
age of the victim and the circumstances surrounding the
making of the complaint. For example, in State v.
Hummel, 132 N.J. Super. 412, 423 [(App. Div.
1975)], a period of three years between assault and
complaint was allowed where the fifteen-year-old
victim had been repeatedly raped over a three-year
period and had just been removed from her abuser,
thereby freeing her from the bonds of a paralyzing fear.
The remoteness of the complaint from the abuse was
found to affect only the probative value, not the
competency, of the evidence.

[State v. Pillar, 359 N.J. Super. 249, 281-82 (App. Div.
2003).]

A-5090-17T4
10
The lapse between a juvenile victim's complaint and the last act must be

adequately explained, W.B., 205 N.J. at 618-619 (recognizing that the two-year

delay was justified because the victim was "scared" and in a state of "open

rebellion" against her mother); longer delays typically require a showing of

threats or coercion, see e.g., Hummel, 132 N.J. Super. at 423 (noting that the

reason for the victim's delay was because her abuser threatened to put her away

in a shelter if she spoke); L.P., 352 N.J. Super. at 384 (finding that the delayed

complaint was justified because the victim "continued living with defendant . .

. and defendant had warned [her] that he would kill her if she told anyone about

the sexual abuse").

Reflecting her "limited understanding" of what was done to her when she

was six years-old, at a time when defendant still lived with her, her mother and

her brother, see P.H., 178 N.J. at 393, W.B. testified she was "unfazed" by the

abuse that occurred while her mother was at work because "[a]t six years[ -]old,

you don't know any better, you're not fully taught what's right or wrong[.]"

During the abuse that occurred during bi-weekly weekend parenting time

at defendant's father's house when W.B. was "around eight to tenish," defendant

first told W.B. not to tell anyone because if she "said anything that he could get

. . . in very serious trouble and [she] wouldn't see him anymore." After W.B.

A-5090-17T4
11
told V.H. about the abuse, and defendant moved to two locations in Woodbridge

Township between 2010 and 2012, when W.B. was between ten or eleven and

thirteen years-old, the assaults continued during bi-weekly parenting time.

From the record, we observe W.B. did not tell anyone about the abuse, including

her mother, from her initial disclosure to V.H. before they were ten years -old

until she told J.M.

Although there is no evidence defendant threatened or forced W.B. to

remain silent, he did play on her emotions for him after defendant moved from

the marital home. W.B. told the jury about her relationship with defendant:

Before everything came out, I was able to have a
relationship with my dad and we would go out to lunch,
we would hang out, we would go jeeping together
which is like mudding in a Jeep, pretty standard stuff,
but I was able to build a relationship with him.

She explained, "I just disassociated what he did from him. Like it was a different

person, like what he did was completely different from who he was. And I just

disassociated that so he was still my dad and was able and easier to have a

relationship with him." She said she loved her father, and since she came

forward:

I don't talk to half my family now. I'm missing a whole
person from my life. I don't have someone to walk me
down the aisle. My kids aren't going to have a grandpa,
and I'm just missing such an important figure from my

A-5090-17T4
12
life. We were supposed to learn how to do things
together. He was supposed to teach me how to fix cars
and help me with my car problems and just be a dad and
I'm missing that now.

Even at age ten, she realized her father would face punishment if she disclosed,

asking V.H. to keep secret their conversation because W.B. "didn't want her dad

to get in trouble." And, J.M. told the jury, she never told anyone besides V.H.

because she "was afraid she would get in trouble and she thought that it might

have been her fault and people would be mad at her."

When she told J.M., she had no apparent confidante. There is no evidence

she told V.H. about the continued abuse after her initial disclosure. She never

sought her mother's help at any time. In fact, she "took a shot" thinking she

"might as well try" to get defendant to stop the assaults, and confronted her

father around her thirteenth birthday. She told him "that what he was doing was

wrong." After "that he basically just did stop."

After she confronted her father, she wanted to see a therapist a year to six

months prior to her mother beginning that process in November 2016, by asking

defendant about health insurance coverage for the sessions. She had not begun

therapy when she told J.M in the summer of 2016. Under those circumstances,

although the four-year period between the last act and W.B.'s disclosure to J.M.

was lengthy, we agree with the trial court that W.B. did not have a trusted person

A-5090-17T4
13
to tell of the longstanding abuse until then. She apprehended the repercussions

to her and defendant that did ensue once disclosure was made to her mother,

albeit by her father's reaction to the request for health insurance coverage for

the therapy sessions. She told the man, to whom she would become affianced,

of the continued abuse only after they had developed a relationship she could

trust; even then, she was distressed when she made that disclosure. The trial

court did not abuse its discretion in finding the disclosure to J.M. was made

within a reasonable time.

We reject defendant's contention that the trial court erred in allowing

fresh-complaint testimony from both V.H. and J.M. V.H.'s testimony involved

the very early assaults by defendant. J.M.'s testimony covered assaults over an

additional two years, well after the disclosure to V.H. that occurred when W.B.

was less than ten years-old. Absent J.M.'s testimony, the jury may have thought

that W.B.'s failure to complain about the assaults that continued after she was

ten years-old were fabrications. It was within the judge's discretion to allow

both witnesses' testimony "to negate the inference that the victim's initial silence

or delay indicates that the charge is fabricated," R.K., 220 N.J. at 455, including

W.B.'s silence about the continued abuse after she told V.H, see Hill, 121 N.J.

at 170 (holding trial courts "may, but need not, exclude cumulative fresh-

A-5090-17T4
14
complaint testimony that is prejudicial"); see also State v. Taylor, 226 N.J.

Super. 441, 453 (App. Div. 1988) (holding "[w]ithout evidence of the second

complaint, a jury might have thought that if the child did not recount the events

to her mother at the first opportunity, the events may have been a fabrication of

either the child or her aunt").

II.

Defendant also advances several additional arguments that the trial court

erred in admitting evidence.

Defendant argues the trial court erred by denying his motion in limine to

exclude evidence at trial of a telephone conversation between W.B. and

defendant that was recorded by the Prosecutor's Office and played to the jury

during the State's case-in-chief. The call began with a cordial, innocuous

conversation before W.B. told defendant that her mother informed her that

defendant asked why W.B. was looking for a therapist. Her mother testified that

she asked defendant about health insurance coverage for therapy sessions on the

day prior to the recorded conversation. When defendant replied, "Oh, yeah, to

make sure everything was going okay," the following colloquy ensued:

[W.B.]: Well, I think we both know the reason why I’m asking for
a therapist.

A-5090-17T4
15
[DEFENDANT]: (Inaudible.)

[W.B.]: So –

[DEFENDANT]: Okay.

[W.B.]: I mean, you said you wanted to, you know, try and be part
of . . . my life, but I don’t, like, going to a therapist is not to get you
in trouble, its just so I can actually have closure on what happened
because we both know what happened wasn’t okay.

[DEFENDANT]: (Inaudible.)

[W.B.]: So.

[DEFENDANT]: So. You do whatever you have to do to get better,
sweetheart.

[W.B.]: I mean –

[DEFENDANT]: I love you (inaudible).

[W.B.]: Yeah, I love – what? Hello?

[DEFENDANT]: All right. Take care sweetie.

[W.B.]: Wait, why are you – wait. Where are you going?

[DEFENDANT]: No, I just –

[W.B.]: No, but I . . . called you to talk.

[DEFENDANT]: All right. I just –

[W.B.]: What’s wrong? You don’t sound okay.

[DEFENDANT]: I’m okay. It’s okay.

A-5090-17T4
16
[W.B.]: I really, I don’t make – I don’t want you to feel like [bad]
about the situation, like –

[DEFENDANT]: No.

[W.B.]: But, I don't know.

[DEFENDANT]: Want you to be happy.

[W.B.]: Is there anything you have to say about it at least?

[DEFENDANT]: No.

[W.B.]: There’s no apology for basically ruining my life, a little bit?
Because we all know, like, that [messed] someone up.

[DEFENDANT]: I don’t – I can’t – I don’t want to talk about this
on the phone.

[W.B.]: But why not?

[DEFENDANT]: I just don’t.

[W.B.]: Well, I can't talk to you in person about it because [we] all
know how it's going to end, and it's not going to be well.

[DEFENDANT]: Have a good Thanksgiving, okay.

[W.B.]: Why are you trying to leave? Like – you don’t, you don’t
even have like a single remorse for what you did? How is that fair
to me? There’s not one apology you could possibly have, because,
you know, this happened for like six years, right? There’s not a
single apology?

[DEFENDANT]: Oh, there’s lots of apologies.

A-5090-17T4
17
[W.B.]: Well, you said you wanted to try to and make things better
but you still have not even brought up the biggest issue that there
is.

[DEFENDANT]: No.

[W.B.]: So why don’t we address it?

[DEFENDANT]: I can’t right now, I’m sorry.

[W.B.]: Why not?

[DEFENDANT]: I can't.

[W.B.]: All right. Well, everything has been on your time. So why
can't this be on my time?

[DEFENDANT]: I'll call you back in a little bit.

[W.B.]: No, like, why can't we just talk now? Are you with
someone right now?

[DEFENDANT]: I told you I'm – I'm – I'm –

[W.B.]: You just said you were outside.

[DEFENDANT]: Yeah, but I can't talk right now, I'm sorry.

[W.B.]: Why?

[DEFENDANT]: Can't.

[W.B.]: But I’m ready to talk.

[DEFENDANT]: Sweetie, I love you.

[W.B.]: No, obviously, you don’t, though. There’s no apology or
anything?

A-5090-17T4
18
[DEFENDANT]: There’s [an] apology, I’m sorry, I’m sorry, I was
a horrible parent, I was never there.

[W.B.]: That’s no, that’s – you not being there is not what I’m
asking for – he really just hung up on me.

Defendant contends the recording was inadmissible because it is

ambiguous. Trial counsel argued defendant was apologizing for being "a

horrible parent," not about allegations of sexual assault which were never

specified by W.B. during the conversation. As such, the "ambiguous nature of

the conversation . . . invited unconstitutional speculation rendering the call

unduly prejudic[ial]." Defendant also argues that the prosecutor's claim to the

jury during summation that the "true meaning" of defendant's failure to address

W.B.'s allegations and his apology constituted an admission of guilt.

The trial court, after a N.J.R.E. 104 hearing at which the recording was

played, ruled the conversation was relevant and it would be up to the jury to

determine if anything was to be derived from the recording in the context of all

of the evidence adduced at trial, after hearing both parties' views about the

recording's content. Although "relevant evidence may be excluded if its

probative value is substantially outweighed by the risk of . . . [u]ndue

prejudice[,]" N.J.R.E. 403; State v. Covell, 157 N.J. 554, 573 (1999), we review

a trial court's decision on that issue, affording "substantial deference to the

A-5090-17T4
19
evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006). Thus, our review of evidentiary decisions implicates the

abuse of discretion standard, where a reversal will occur only where the trial

judge's decision was "a clear error of judgment." Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (quoting Koedatich, 112 N.J.

at 313).

Considering the remarks made by W.B. during the conversation, and other

evidence, defendant's statements in the recorded conversation were not so

ambiguous as to require exclusion. W.B. told defendant in the beginning of the

pertinent conversation, "I think we both know the reason why I’m asking for a

therapist." W.B.'s mother testified that on the day prior to the conversation,

when she raised the subject of insurance coverage for therapy to defendant,

defendant "was nervous, he was scared, he was very childlike." When he

informed K.B. "about a notebook that had passwords and bank account

information in it," K.B. asked him why he was advising her of that information.

K.B. said defendant replied "that because as soon as [W.B.] spoke to a therapist

they were going to have to call the cops and he couldn't live in jail."

A-5090-17T4
20
W.B. commented that she was not seeing a therapist to "get [defendant] in

trouble," but to "actually have closure on what happened because we both know

what happened wasn’t okay." She continued:

[Y]ou don’t even have like a single remorse for what
you did? How is that fair to me? There’s not one
apology you could possibly have, because, you know,
this happened for like six years, right? There’s not a
single apology?

[(Emphasis added).]

That evidence sufficiently strengthened the probative value of the recording to

justify the trial court's finding that the prejudice caused by any ambiguity did

not outweigh that value. The jury could consider defendant's demeanor and his

responses during the conversation in determining the parties' dueling

interpretations of the issue being discussed. As the trial court instructed the

jury, it had to first determine if the statement was made by defendant and, if

made, whether it was credible. The instruction, which conformed substantially

to the model charge, Model Jury Charges (Criminal), "Statements of Defendant"

(rev. June 14, 2010), placed the conversation's context in the hands of the jury.

In a single sentence, without any explanation, defendant argues the

recording's "admission was improper pursuant to [N.J.R.E.] 803(b)(1) and

[N.J.R.E.] 104." Defendant's contention cannot be considered an

A-5090-17T4
21
argument. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 506

n.2 (App. Div. 2015) (finding that an issue raised in "a single sentence in

[defendant's] brief," was waived because defendant provided no supporting legal

argument). Although the N.J.R.E. 104 hearing at which the recording was

played does not present as a traditional N.J.R.E. 104(c) hearing at which the trial

court must determine if the State proved defendant's statement was voluntary,

see State v. Miller, 76 N.J. 392, 404-05 (1978), defendant does not argue that

the conversation with his daughter was not voluntary. 5 Moreover, after listening

to the recording and arguments of counsel the trial court found "there [was] no

legal reason, no evidentiary reason to keep this statement out at this time." As

such, we find no merit in defendant's syncopated argument.

Defendant further argues the trial court erred in admitting hearsay

testimony elicited from the case detective over his objection. Specifically, in

his merits brief defendant asserts the detective's "testimony regarding defendant

purchasing a one-way ticket to Brazil and travel[ing] out of state . . . constituted

inadmissible hearsay"; should have been excluded as more prejudicial than

5
When the CD of the recording was moved into evidence by the State, defendant
had no objection.

A-5090-17T4
22
probative; and, although the State "intimated that the evidence indicated a

consciousness of guilt," the court's denial of the State's request for a flight

charge prejudiced defendant. 6 The detective testified that the day after the

recorded conversation, "defendant purchased and subsequently cancelled airline

travel from Newark Liberty International Airport . . . to Orlando, Florida,

continuing to Sao Paulo, Brazil"; the ticket was one-way. Defendant did not

object to that testimony. As such we will view it under the plain error standard.

"Under that standard, a conviction will be reversed only if the [alleged] error

was 'clearly capable of producing an unjust result[.]'" State v. McGuire, 419 N.J. Super. 88, 106 (App. Div. 2011) (quoting R. 2:10-2). Defendant must

present evidence "sufficient to raise a reasonable doubt as to whether the error

6
In the statement of facts of his merits brief, defendant mentions another
instance during the trial when a hearsay objection was made to the detective's
testimony that defendant's sister "reported the defendant missing or in danger
because [he] failed to show up for work." In the statement of facts, he also
mentions the detective's testimony that "there was [an] indication that
[d]efendant attempted to conceal his whereabouts by using cash and removed
his license plate from his vehicle at various times," and by calling from restricted
phone numbers; there was no objection lodged to that testimony which was
elicited during cross-examination. Several other hearsay objections were lodged
at trial but were not addressed in defendant's merits brief. Defendant did not
advance any argument about any of the foregoing testimony in his merits brief.
As such we will consider them abandoned. See State v. Press, 278 N.J. Super. 589, 596 (App. Div. 1995) (determining that an "issue [that] was not briefed or
argued . . . should not [be] address[ed]"); State v. L.D., 444 N.J. Super. 45, 56
n.7 (App. Div. 2016) ("[A]n issue not briefed is waived.").
A-5090-17T4
23
led the jury to a result it otherwise might not have reached[.]" Id. at 106-07

(alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)). In

other words, he must establish that the error "was clear and obvious and that it

affected [his] substantial rights." Id. at 107.

Defendant did interpose a hearsay objection to the detective's testimony

that defendant travelled to various states. If an objection is made, we review the

trial court's evidentiary holding under the harmless-error standard, see State v.

Reeds, 197 N.J. 280, 297-98 (2009), and will only reverse its decision if the

error "is of such a nature as to have been clearly capable of producing an unjust

result[,]" State v. R.B., 183 N.J. 308, 330 (2005) (quoting R. 2:10-2); see also

State v. Macon, 57 N.J. 325, 337-38 (1971) (noting that "the same ultimate

standard applies whether the error was objected to below or whether the error

was first claimed upon appeal").

The detective told the jury that "[d]uring the course of our investigation,

we learned that . . . defendant was . . . scheduled to spend Thanksgiving[—the

day after the recorded conversation—]at his sister's residence" but did not

attend. At a sidebar conference following defense counsel's hearsay objection

because the information was given to the State by defendant's sister, the assistant

prosecutor tried to justify the testimony, contending it was "derived from

A-5090-17T4
24
numerous sources," not just from what defendant's sister said. The assistant

prosecutor continued:

It's basically based upon a lengthy investigation, it's
based upon numerous different things including
numerous records that we viewed in determining where
the defendant's whereabouts are.

It's relevant because . . . defendant was ultimately
apprehended in Alabama. So during Thanksgiving, the
State was just trying to proffer the fact that he was in
Alabama which is, has a direct correlation to the case,
specifically that's where he was located. So we have to
be able to put that in some type of context, so that was
pretty much what we were eliciting it for. We didn't
elicit any type of hearsay statement. I believe that
counsel is right to the fact that this conversation was
documented in a conversation with [defendant's sister]
but we're not eliciting it as to what [defendant's sister]
said, and furthermore, this was documented in
numerous, numerous records as well independent from
what [defendant's sister] was saying.

The trial court queried if the testimony was admissible "not for the truth

of what someone told an investigator about [where] a person would be, but rather

for the purpose of making the jury aware of what investigation went toward s

finding this information[.]" The assistant prosecutor, unsurprisingly, agreed

with the argument she had not theretofore raised. Yet, the assistant prosecutor

admitted that she was seeking to elicit that defendant travelled to Alabama after

the recorded conversation, "which is tying into where he [was] ultimately found"

A-5090-17T4
25
and arrested. The trial court overruled defendant's objection, finding the

testimony relevant, not introduced to prove the truthfulness of the statement, and

"properly admissible as an exception[.]"

The detective then testified defendant went to Alabama, where his cousin

was located, during the Thanksgiving holiday, and returned to New Jersey,

"[a]ccording to credit[-]card records," on December 5, 2016; defense counsel

again objected on hearsay grounds. The trial court allowed the testimony, asking

the assistant prosecutor to "lay a little more foundation" about the credit cards.

Without complying with the judge's instruction, the assistant prosecutor asked

the detective if he knew when defendant returned to New Jersey. The detective

replied defendant "made contact with the New Jersey State Police" on December

10, 2016.

Later, when the detective testified he had no further contact with

defendant in New Jersey after December 23, 2016, the assistant prosecutor

asked, "where did [the detective] believe . . . the defendant went" after that

date?" The detective answered, "based on records, it appeared as if the

defendant was in multiple states[.]" Defense counsel objected on hearsay

grounds. At sidebar, the assistant prosecutor asserted:

Judge, the State would just place on the record that it's
not hearsay, he is basing this on his investigation. The

A-5090-17T4
26
detective gets on the stand, he's allowed to testify as to
what happened in the investigation. There were
numerous records in this case which were turned over
to defense counsel. They were turned over as certified
business record documents. He's certainly allowed to
testify as to his conclusions about the investigation.

So at this point in time, it is the State's position
that this type of testimony is admissible. I mean there
was numerous, numerous search warrants done in terms
of finding out the defendant's whereabouts as to where
he went and where he didn't go. Now, the State would
understand if we tried to elicit a particular hearsay
statement that, you know, Barbara told me he was here,
but that's not what we're doing. We're basically giving
a summary based upon the voluminous records which
were certified and we're not offering any type of
statement at this time.

After the trial court confirmed that defense counsel received from the

State records of credit-card usage, airline ticket purchases, and attendance

records from defendant's employer, defense counsel explained that he objected

because the detective's "opinion" was derived from documents which were not

established as hearsay exceptions; that is, the State did not lay a foundation

establishing that they were business records. The trial court ruled:

If a detective goes out and investigates a case and
obtain[s] records, for instance, from a business, from a
place where a person works, that is part of the
investigation, in this [c]ourt's opinion, and he's allowed
to testify to that. [Defense counsel is] allowed to cross-
examine if [he] want[s] to use the records or anything
like that.

A-5090-17T4
27
The court also determined the State was not seeking to introduce the documents;

the detective was "testifying from his investigative reports"; and that the records

from which the detective was opining as to defendant's travels were not hearsay,

but were "records from a business."

The State also introduced at trial text messages between defendant and

W.B. that were taken from W.B.’s phone. Defense counsel objected that these

messages constituted inadmissible hearsay. The trial court overruled the

objection, stating "they are not hearsay at this time, not being offered for the

truth but that are part of an investigation in this matter."

Just after the recorded conversation, W.B. texted defendant and asked,

"[w]hy’d you hang up?" and "[w]hen are you going to, gonna call back, call me

back, I’m sorry." Defendant replied, "Sorry, had to go. Have an errand. Call

you on Friday." Additional text messages, collected from W.B’s phone during

November 22, 2016 to January 22, 2017, were also introduced. One of the text

messages from W.B.’s phone, sent on December 18, 2016, stated , "I’m not

surprised you ran again, but you are making my life hell right now and you’re

pissing me off. Take responsibility for your actions"; to which defendant

responded "I’m sorry I’m making your life hell." Defendant now argues "the

admission of the text messages, specifically, the one in which W.B. asks

A-5090-17T4
28
defendant, 'why he is running[,]' should never have been admitted, and if

admitted, required the [c]ourt to issue a limiting instruction."

The specific text message was, like the recorded conversation, a hearsay

exception if it was defendant's statement. N.J.R.E. 803(b)(1). We note the trial

court did not conduct a N.J.R.E. 104(c) hearing to determine if the statement

was voluntary or to determine the prejudicial impact of, not only defendant's

statement, but also that of the prompting text from W.B. Defendant, however,

objected only on hearsay grounds. He does not contend that defendant's text to

his daughter was not voluntary. He does not contend, as he did with the recorded

conversation, that the statement was more prejudicial than probative. We also

note the trial court, as it did with defendant's statements in the recorded

conversation, instructed the jury it had to first determine if the statement was

made by defendant and, if made, whether it was credible. Again, the instruction

conformed substantially to the model charge, see Model Jury Charges

(Criminal), "Statements of Defendant," and placed the conversation's context in

the hands of the jury. But, for reasons which we will discuss at length, W.B.'s

comment that defendant was running again was, on the record before us,

inadmissible.

A-5090-17T4
29
The trial court erred in determining the detective could testify from

records, even if defense counsel received them in discovery. The assistant

prosecutor did not establish that any of the records were admissible as hearsay

exceptions; she simply stated they were. A proper foundation must always be

laid before business records can be admitted into evidence. See State v.

Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975). "The requirement that a

foundation be laid establishing the criteria for admissibility [of the business

records] may be met by the kind of proof that would satisfy a trial judge in a

hearing under [N.J.R.E.] 104(a), including proof presented in affidavit form[.]"

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme

Court Committee Comment on N.J.R.E. 803(c)(6) (2019). To achieve that end,

a trial judge should normally examine the records during a N.J.R.E. 104 hearing

to determine the manner of their preparation and ensure that all requirements of

N.J.R.E. 803(c)(6) are satisfied before allowing the documents to be admitted

into evidence at trial. 7 N.J. Div. Youth & Family Servs. v. E.D., 233 N.J. Super.

7
Under the "Records of Regularly Conducted Activity" exception to the hearsay
rule ("business records exception"), documents or records may be exempt from the
hearsay rule if they meet three criteria:

First, the writing must be made in the regular course of
business. Second, it must be prepared within a short

A-5090-17T4
30
401, 413 (App. Div. 1989); see also Biunno, Weissbard & Zegas, Current N.J.

Rules of Evidence, cmt. 1 on N.J.R.E. 803(c)(6) (2019). Alternatively, a

custodian of records or other qualified witness can testify that the proffered

records meet the required N.J.R.E. 803(c)(6) criteria. See Konop v. Rosen, 425 N.J. Super. 391, 402-04 (App. Div. 2012); Hahnemann Univ. Hosp. v. Dudnick,

292 N.J. Super. 11, 17-18 (App. Div. 1996) (noting that a witness must be

qualified before laying the necessary foundation for computer records to be

admitted into evidence at trial). For example, we have determined

[a] witness is competent to lay the foundation for
systematically prepared computer records if the witness
(1) can demonstrate that the computer record is what
the proponent claims and (2) is sufficiently familiar
with the record system used and (3) can establish that it
was the regular practice of that business to make the
record. If a party offers a computer printout into
evidence after satisfying the foregoing requirements,
the record is admissible "unless the sources of
information or the method, purpose or circumstances of
preparation indicate that it is not trustworthy."

[Hahnemann, 292 N.J. Super. at 18 (citation omitted)
(quoting N.J.R.E. 803(c)(6)).]

time of the act, condition or event being described.
Finally, the source of the information and the method
and circumstances of the preparation of the writing
must justify allowing it into evidence.

[State v. Matulewicz, 101 N.J. 27, 29 (1985).]
A-5090-17T4
31
See also Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007) ("All

that is needed to lay the foundation for the admission of systematically prepared

. . . records otherwise qualified as business records is if 'the witness (1) can

demonstrate that the . . . record is what the proponent claims and (2) is

sufficiently familiar with the record system used and (3) can establish that it was

the regular practice of that business to make the record.'" (quoting Hahnemann,

292 N.J. Super. at 18))). Finally, an affidavit may be sufficient to lay a proper

foundation for the records under certain circumstances. Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee

Comment on N.J.R.E. 803(c)(6) (2019).

The detective was not able to introduce the hearsay statements from the

records or any other source unless the trustworthiness of the source was

established. The detective was not a permissible conduit for the introduction of

inadmissible hearsay; "case detective" is not a hearsay exception. And, we

disapprove of the trial court's admission of hearsay evidence as explaining the

State's course of investigation.

The trial court's determination that the testimony was not hearsay because

it was not offered to prove the truth of the matter was misguided. In her

summation, the assistant prosecutor linked the detective's testimony about

A-5090-17T4
32
defendant's travel and the text messages to defendant's knowledge of the subject

of his recorded conversation with W.B., stating:

Text messages, which were marked S-2, these are
crucial because they show you exactly what was
happening while this was going on. If you look to the
bottom of these, on the date of November 22[], you can
see specifically the defendant and how this is imploding
for him because what is he doing? He’s trying to
contact [W.B.]. He says, hey, did you get rid of Snap
Chat? I don’t see you as my friend anymore, [W.B.]
Then he says, I can’t add you either.

[K.B.] testified that on [November 22], . . .
defendant was trying to get in touch with them. It’s
more telling is that you can see during the course of
these text messages when the consensual is over, and
[W.B.] asked her father, why did you hang up? When
are you going to call me back? You know what his
response to her is? Sorry, had to go, have an errand,
call you on Friday. That’s what he said to her. At any
time during this consensual, at any time in these text
messages, at any time does the defendant ever once say
to [W.B.], [W.B.], what are you talking about? I didn’t
do this, what are you crazy? Are you making this up?
That would be a normal reaction, but that’s not what the
defendant does.

The day after he, [W.B.] goes to the police on
November 23[], 2016, the defendant books a one-way
flight to Brazil and then cancelled it. This evidence is
not being offered to say to you that the defendant
somehow fled the country and all these other things.
What it shows to you is that this was his immediate
reaction. It shows you that he knew exactly what was
going on in that consensual because this was his first
reaction.

A-5090-17T4
33
[(Emphasis added).]

The assistant prosecutor continued this tack, telling the jury defendant did

not go to his sister's house for Thanksgiving, and, instead, went to Alabama to

"distanc[e] himself" from W.B. "because it's not a secret what happened between

the two of them." She also quoted W.B.'s text and defendant's reply, and told

the jury:

Why would he be making her life hell at that
point, he's just a bad parent; right? Of course not. And
he was making her life hell. He sexually abused her for
years and now he's told her that her mother knew about
it. Why is [W.B.] saying to him what are you running?
Because during this whole course of time, . . . defendant
is not in New Jersey the whole time. He's in New
Jersey, then he's going out of state. His own sister
reported him missing for not showing up to work
because he's getting himself away from the situation.

On February 14[], . . . defendant contacts [K.B.]
from a restricted phone number, and in this
conversation he tells her, oh, you knew. Doesn't tell
her, hey, I didn't do this. He takes the blame and now
tries to place it on her. But if he didn’t do it, wouldn't
the normal reaction be what is going on, why is she
saying this, what is happening. That's what you would
say if you didn't do it.

Ultimately . . . defendant is placed under arrest in
Alabama at his cousin['s] . . . house. Her testimony is
that after December 23[] the police didn't have any
more contact with . . . defendant in New Jersey. We
know throughout the course of this, he's basically

A-5090-17T4
34
traveling to different states and at times appearing at
this cousin's house in Alabama. We know that he is
evasive from restricted numbers, and we talked about
this before because he's trying to distance himself from
[W.B.]. He's also attempting to relocate.

The detective's hearsay testimony about defendant's travel outside New

Jersey was used to prove the truth of the matter. Although not couched in terms

of flight, the hearsay testimony about defendant's travel was used by the State

as evidence of defendant's consciousness of guilt and his knowledge that W.B.

was speaking about his sexual crimes during their recorded conversation; it was

his "immediate response." The hearsay testimony was offered to prove the facts

upon which that State-drawn inference was based.

We further observe that even if the out-of-state travel evidence was not

offered for its truth—which we do not believe to be the case—the trial court did

not instruct the jury about its limited purpose. That is not to say we agree with

defendant that the trial court erred by failing to include a flight charge; defendant

objected to that charge, and under the invited error doctrine

a "defendant cannot beseech and request the trial court
to take a certain course of action, and upon adoption by
the court, take his chance on the outcome of the trial,
and if unfavorable, then condemn the very procedure he
sought and urged, claiming it to be error and
prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955).
Thus, when a defendant asks the court to take his
proffered approach and the court does so, [the Court

A-5090-17T4
35
has] held that relief will not be forthcoming on a claim
of error by that defendant. On another occasion, [the
Court] characterized invited error as error that defense
counsel has "induced." State v. Corsaro, 107 N.J. 339,
346 (1987).

[State v. Jenkins, 178 N.J. 347, 358 (2004).]

But the trial court should have instructed the jury if the evidence was admitted

for a purpose other than its plain truth.

We also discern that W.B.'s statement that she was "not surprised

[defendant] ran again," was not analyzed for admissibility. In light of our

determination that the detective's testimony about defendant's travel was

inadmissible as presented, W.B.'s statement was unsupported by other

competent evidence. As used by the assistant prosecutor in her summation, it

was used for the truth of the statement. During a N.J.R.E. 104(c) hearing—

which was not conducted as to the text messages—the trial court, in addition to

determining if defendant's statements were admissible, should have determined

if there was a basis for admission of W.B.'s statements, especially the portion

which we highlighted. We are dubious that defendant's reply that he was sorry

for making W.B.'s "life hell" necessitated the inclusion of her "surprised you

ran" statement. Under N.J.R.E. 106, "[w]hen a writing or recorded statement or

part thereof is introduced by a party, an adverse party may require the

A-5090-17T4
36
introduction at that time of any other part or any other writing or recorded

statement which in fairness ought to be considered contemporaneously." The

doctrine of completeness "allows the reading of a second writing or statement

where 'it is necessary to (1) explain the admitted portion, (2) place the admitted

portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and

impartial understanding.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App.

Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992)).

The trial court abused its discretion in admitting the hearsay evidence.

That evidence supported the State's position that defendant knew what W.B. was

discussing during the recorded conversation. That drawn inference was

strengthened by the admission of the hearsay testimony about defendant's travel.

Further, the State highlighted the hearsay testimony about defendant's purchase

of a one-way ticket to Brazil after the recorded conversation.

Of course, we review the admission of the travel-related evidence, to

which defendant objected under the harmful error standard whereby a new trial

must be granted if the erroneous admission raises a "reasonable doubt as to

whether the error denied a fair trial and a fair decision on the merits[.]" Macon,

57 N.J. at 338. We review the admission of the detective's testimony about the

ticket to Brazil for plain error. "Under that standard, we disregard an error

A-5090-17T4
37
unless it is 'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2). "In other words, the error must be

'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it

otherwise might not have reached.'" Ibid. (alteration in original) (quoting

Macon, 57 N.J. at 336).

Through that bifocal lens we see that the errors do not warrant a new trial.

There was strong evidence of defendant's guilt other than the admitted hearsay.

His reaction to K.B.'s request for health insurance information for their

daughter's therapy was telling. K.B. testified defendant was nervous, scared,

and very childlike. He informed K.B. about passwords and bank account

information, "because as soon as [W.B.] spoke to a therapist they were going to

have to call the cops and he couldn't live in jail."

The jury also heard defendant's reaction to W.B.'s accusatory inquiries

during the recorded conversation in which she referenced "what [he] did" for

six-years and her need for therapy "not to get [him] in trouble," but to "actually

have closure on what happened because [they] both know what happened wasn’t

okay." Those admissible references were sufficient evidence for the jury to find

that defendant knew W.B. was talking about defendant's sexual assaults. The

jury also considered, for its limited purpose, the fresh-complaint evidence. And,

A-5090-17T4
38
W.B.'s detailed testimony about the sordid acts defendant compelled her to

perform was powerful evidence.

The errors were also buffered during the trial. The assistant prosecutor

explicitly told the jury that the State was limiting evidence that defendant

purchased the one-way ticket to Brazil to show his reaction to his recorded

conversation with W.B., not that he fled. Although the trial court failed to

conduct a N.J.R.E. 104(c) hearing regarding the text messages between

defendant and W.B., there is not a scintilla of evidence that defendant's texts

were not voluntary. Furthermore, the trial court included the text messages in

its final instruction to the jury regarding defendant's statements.

We also observe that defense counsel ably cross-examined the detective

to ameliorate the impact of the hearsay evidence. Counsel elicited that: the

detective could not say if the days defendant was absent from work were

vacation days; defendant was staying at his cousin's residence in Alabama, and

the detective did not know if defendant was on vacation; the credit cards and

debit card defendant used as he travelled were in his name, and he did not use a

false credit card; the detective did not know if defendant ever attempted to hide

his identity as he travelled; and during his travel, an arrest warrant had not been

issued for defendant.

A-5090-17T4
39
We countenance neither prosecutorial shortcuts in presenting evidence nor

judicial approval of that practice which sullied this trial. "'[A] defendant is

entitled to a fair trial but not a perfect one,' for there are no perfect trials." State

v. Biddle, 150 N.J. Super. 180, 183 (App. Div. 1977) (alteration in original)

(quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)). We are

convinced defendant received just that, notwithstanding these errors.

III.

Reviewing defendant's argument that the assistant prosecutor improperly

vouched for W.B.'s credibility during summation for plain error because no

objection was made, Daniels, 182 N.J. at 95 ("Under that standard, [this court]

disregard[s] an error unless it is 'clearly capable of producing an unjust result.'"

(quoting R. 2:10-2)), we determine it to be without sufficient merit to warrant

discussion, R. 2:11-3(e)(2). We add only that the assistant prosecutor responded

to defendant's closing argument, during which he repeatedly asserted W.B.

fabricated the allegations, by rhetorically querying what would be her

motivation for so doing. The assistant prosecutor did not vouch for W.B. She

properly pointed to record evidence and inferences related thereto. See State v.

Frost, 158 N.J. 76, 82 (1999). It is well-settled that the State "may argue that a

witness is credible, so long as the prosecutor does not personally vouch for the

A-5090-17T4
40
witness or refer to matters outside the record as support for the witness’s

credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004). While

prosecutors are typically barred from arguing that a witness had no motive to

lie, see R.B., 183 N.J. at 331-32, the assistant prosecutor’s remarks were an

appropriate counter to the attacks on W.B.’s credibility made during defendant’s

summation, a practice we have held as permissible, See e.g., State v. Murray,

338 N.J. Super. 80, 88 (App. Div. 2001) (finding that a "prosecutor's statement

to the jury that [the witness] had no motive to lie was a carefully measured and

appropriate response to defendant's attack on [the witness’s] credibility").

IV.

Defendant was sentenced to an aggregate nineteen-year prison term

subject to an eighty five percent parole disqualifier pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.8 The trial court found aggravating

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

"maximum weight" to factors two, "[t]he gravity and seriousness of harm

inflicted on the victim," N.J.S.A. 2C:44-1(a)(2); and nine, the need for

8
The aggregate sentence was the term imposed on count one. The trial court
imposed concurrent sentences of: five years on count three; ten years subject to
NERA on count four; five years on count six; ten years subject to NERA on
count seven; and five years on count nine. The court merged: count two into
count one; count five into count four; and count eight into count seven.
A-5090-17T4
41
deterrence, N.J.S.A. 2C:44-1(a)(9); and "significant weight" to factor three,

"[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44- -

1(a)(3). He concluded the aggravating factors outweighed mitigating factor

seven, "defendant has no history of prior delinquency or criminal activity[,]"

N.J.S.A. 2C:44-1(b)(7), to which he assigned "appropriate significant weight[.]"

We are largely unpersuaded by defendant's arguments that the trial court

"failed to articulate and evaluate" the evidence in finding and weighing

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

engaged in impermissible double-counting.

Our review of a sentence is narrow. State v. Miller, 205 N.J. 109, 127

(2011). Our duty is to assure that the aggravating and mitigating factors found

by the judge are supported by "competent credible evidence in the record." Ibid.

(quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court,

we must (1) "require that an exercise of discretion be based upon findings of

fact that are grounded in competent, reasonably credible evidence"; (2) "require

that the factfinder apply correct legal principles in exercising its discretion"; and

(3) modify sentences only "when the application of the facts to the law is such

a clear error of judgment that it shocks the judicial conscience." State v. Roth,

95 N.J. 334, 363-64 (1984). Applying a deferential standard of review to the

A-5090-17T4
42
judge's sentencing determination, we find no error in the judge's identification

and balance of the "aggravating and mitigating factors that are supported by

competent credible evidence in the record." State v. Grate, 220 N.J. 317, 337

(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).

The trial court found: aggravating factor two applicable "because the

victim of the offense was particularly vulnerable or incapable of resistance

because of the extreme youth that we are dealing with in this case"; aggravating

factor three because of the continuous nature of defendant's assaults; and

aggravating factor nine.

Rule 3:21-4(g) requires the trial court to point to specific facts supporting

its determination that aggravating or mitigating factors exist. The "explanation

is important for meaningful appellate review of any criminal sentence

challenged for excessiveness" because it allows this court to "assess the

aggravating and mitigating factors to determine whether they 'were based upon

competent credible evidence in the record.'" Bieniek, 200 N.J. at 608 (quoting

Roth, 95 N.J. at 364). A sentence will not be remanded, however, simply

because the sentencing court’s statement of reasons for finding the aggravating

or mitigating factors could have been clearer. See id. at 609. Rather, the

sentence will still be upheld so long as it is "possible in the context of [the]

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record to extrapolate without great difficulty the [sentencing] court's reasoning."

State v. Pillot, 115 N.J. 558, 566 (1989). This occurs "when the record is clear

enough to avoid doubt as to the facts and principles the court considered and

how it meant to apply them." Miller, 205 N.J. at 130.

Although the trial court's reasons for finding aggravating factor two were

brief, it is clear from the record that the court—which presided over the trial—

was aware of and considered that the victim was six years-old when the assaults

commenced, and that defendant, as her father, was in a position of authority

which he freely exercised during overnight parenting time. We observe the

victim’s mother reminded the court of this fact at sentencing. The assistant

prosecutor highlighted that point stating: "Your Honor is well aware in this case

that what was happening to this little girl began happening when she was

approximately six years[-]old, and the defendant in this case utilized the

relationship with his own daughter to continually engage in this type of

conduct." Thus, the trial court focused "particular attention to any factors that

rendered the victim vulnerable or incapable of resistance at the time of the

crime," Lawless, 214 N.J. at 611, "engag[ing] in a pragmatic assessment of the

totality of harm inflicted by the offender on the victim," State v. Kromphold,

162 N.J. 345, 358 (2000), and giving weight to "the victim's particular

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vulnerability to the perpetrator[,]" State v. A.T.C., 454 N.J. Super. 235, 256

(App. Div. 2018), rev’d on other grounds, 239 N.J. 450 (2019).

We also disagree with defendant's argument that the trial court engaged in

impermissible double-counting, which occurs when the "established elements of

a crime for which a defendant is being sentenced . . . [are] considered as

aggravating circumstances in determining that sentence," Kromphold, 162 N.J.

at 354, with regard to aggravating factor two. Both sexual crimes required only

that the victim be under age thirteen, see N.J.S.A. 2C:14-2(a)(1); N.J.S.A.

2C:14-2(b); the endangering charge required the victim to be under age eighteen,

N.J.S.A. 2C:24-4(b)(1). A finding of aggravating factor two can be based on

the victim's "extreme youth," N.J.S.A. 2C:44-1(a)(2). The trial court's finding

based on assaults that began when W.B. was six years-old was not double-

counting because it "consider[ed] facts showing defendant did more than the

minimum the State is required to prove to establish the elements of an offense."

A.T.C., 454 N.J. Super. 254-55; see also Taylor, 226 N.J. Super. at 453.

Defendant's paternal relationship could also be considered in finding

aggravating factor two as to the sexual offenses because it is not an element of

those crimes.

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Defendant's argument that the trial court improperly determined

aggravating factor three applied is also unpersuasive. Defendant buttresses his

argument with the Static-99R actuarial risk scores set forth in the Adult

Diagnostic and Treatment Center report (Avenel report) prepared in connection

with his eligibility for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-

1 to -7. According to the Avenel report, defendant's score on the Static-99, a

recognized "actuarial test used to estimate the probability of sexually violent

recidivism[,]" In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014),

fell "within the 'Below Average Risk' category for being charged with or

convicted of a new sexual[]offense after five years in the community."

N.J.S.A. 2C:44-1(a)(3) provides that a trial court must consider "[t]he risk

that the defendant will commit another offense" when making its sentencing

determination. "A court's findings assessing . . . the predictive assessment of

chances of recidivism . . . involve determinations that go beyond the simple

finding of a criminal history and include an evaluation and judgment about the

individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153

(2006). Although a trial court is obliged to consider all factors when

determining whether a defendant runs a risk of reoffending, it is not required to

give one such factor controlling weight over the others. See id. at 153-54.

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The trial court discounted the Static-99 in rejecting mitigating factor nine,

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

I do consider the Avenel report which in all of its
reports now gives a -- kind of a test that they apply. It’s
an overall test. They do put the caveat in that it doesn’t
specifically mean that this defendant that’s facing
sentenc[ing] will in any way fit within those boundaries
of those test results.

Instead, the trial court determined that defendant ran a high risk of reoffending

due to the continuous nature of the sexual assaults in this case.

The trial court did not abuse its broad discretion by rejecting the Avenel

Report. The court noted Static-99's limitations—"the caveat"—set forth in the

Avenel report: it "is an actuarial tool with moderate accuracy"; the "rate,

confidence interval and nominal category apply to the group and not to

[defendant]"; "[t]he degree to which the routine sample is congruent with

characteristics of New Jersey offenders is unclear"; and "[i]t is important to note

that the Static-99R risk for recidivism . . . may be higher or lower than that

indicated by the Static-99 based on factors not included in this risk tool." The

trial court's reliance on the nature and extent of the trial evidence—what the

Avenel report termed defendant's "repetitive" criminal sexual behavior over six

years—amply supported its aggravating factor three finding. See Thomas, 188 N.J. at 153 (noting that a factor three assessment does not rise and fall on one

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factor, but rather, "include[s] an evaluation and judgment about the individual

in light of his or her history"). The trial court's individualized assessment of

defendant's risk to commit another offense will not be disturbed.

Defendant contends that "the [trial court’s] reasons for applying

aggravating factor nine [were] insufficiently explained and . . . not supported by

the record." Because, in finding aggravating factor nine, the trial court simply

stated there was a "need to deter this defendant specifically and others from

violating the law" we are constrained to remand this matter because the court

did not provide the required factual explanation for its finding as mandated by

Rule 3:21-4(g).

A factor nine determination requires not only a "'qualitative assessment'

of the risk of recidivism, but 'also involve[s] determinations that go beyond the

simple finding of a criminal history and include an evaluation and judgment

about the individual in light of his or her history.'" State v. Fuentes, 217 N.J.
57, 78 (2014) (alteration in original) (quoting Thomas, 188 N.J. at 153). The

trial court was obligated to point to specific facts supporting its conclusion that

there was a need to deter both defendant and the general public from engaging

in future criminal behavior. See id. at 78-79.

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We do not imply that reasons for general and specific deterrence of a

father's sexual abuse of his child over six years do not exist. We remand only

for the court to set forth its reasons. During resentencing the court must also

explain its reasons for the weight it assigns to each aggravating and mitigating

factor. See State v. Case, 220 N.J. 49, 68 (2014) (vacating and remanding a

sentence because the trial court "did not adequately explain its decision to give

[an aggravating] factor 'particular emphasis'"); Fuentes, 217 N.J. at 81 (vacating

defendant's sentence in part because the trial court needed to "explain in greater

detail its assessment of the weight assigned to each aggravating and mitigating

factor, and its balancing of those statutory factors as they apply to defendant").

In light of our remand, we need not address defendant's contention that

the trial court improperly determined that the aggravating factors outweighed

the mitigating factors. We trust the trial court will fully assess and wei gh the

applicable factors. We leave the ultimate sentence imposed to the trial court;

we do not suggest the sentence imposed shocked the judicial conscience.

Affirmed; remanded for resentencing in conformance with this decision.

We do not retain jurisdiction.

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