STATE OF NEW JERSEY v. L.L.

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internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3262-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

L.L.,1

Defendant-Appellant.

Argued October 7, 2020 – Decided January 4, 2021

Before Judges Fuentes, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 14-12-1872.

Patrick J. Jennings argued the cause for appellant.

Ian C. Kennedy, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Ian C. Kennedy, of counsel and
on the brief).

1
We use initials to protect the privacy of the victim and pseudonyms for ease
of reference. See R. 1:38-3(c)(9); see also N.J.S.A. 2A:82-46.
PER CURIAM

Tried to a jury, defendant L.L. was convicted of sexually assaulting and

endangering the welfare of his niece, K.B. (Kendra Berry), on multiple

occasions. Defendant was sentenced to an aggregate thirty-year prison term.

On this appeal, defendant primarily challenges the denial of his pretrial motions

and various evidentiary rulings during the trial. His sentencing argument is

limited to his endangering conviction.

More particularly, defendant raises the following points 2 for our

consideration:

I. THE [TRIAL] COURT . . . ERRED IN DENYING
[DEFENDANT]'S MOTION TO SUPPRESS HIS
CUSTODIAL STATEMENT AS IT WAS ELICITED
IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS UNDER THE FOURTH AMENDMENT
AND ART[ICLE] I, PARAGRAPH 7 OF THE NEW
JERSEY CONSTITUTION.

II. THE [TRIAL] COURT . . . BELOW ERRED IN
DENYING [DEFENDANT]'S MOTION TO
SUPPRESS HIS CUSTODIAL STATEMENT
BECAUSE IT WAS TAKEN IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS UNDER THE FIFTH
AND SIXTH AMENDMENT[S] AND ART[ICLE] I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.

2
Defendant's point headings fail to state "the place in the record where the
opinion or ruling in question is located or [that] the issue was not raised below
. . . ." See R. 2:6-2(a)(6).
A-3262-17T2
2
III. [DEFENDANT]'S CONVICTION MUST BE
OVERTURNED BECAUSE THE LEAD DETECTIVE
IMPROPERLY TESTIFIED ABOUT HIS
INTERROGATION TACTICS AND HIS PERSONAL
BELIEF ABOUT [DEFENDANT]'S
TRUTHFULNESS.
[(Partially raised below)]

IV. [DEFENDANT]'S CONVICTION MUST BE
OVERTURNED BECAUSE THE FRESH
COMPLAINT EVIDENCE PRESENTED TO THE
JURY WAS IMPROPER AND HIGHLY
PREJUDICIAL.

A. THE STATE INTENTIONALLY
ELICITED TESTIMONY ABOUT THE
FRESH COMPLAINT DISCLOSURE TO
D[.]Z[.] DESPITE THE COURT'S
ORDER PRECLUDING ITS DIS-
CLOSURE.

B. THE FRESH COMPLAINT
EVIDENCE FROM V[.]R[.] SHOULD
HAVE BEEN BARRED AND,
NOTWITHSTANDING, HER TESTI-
MONY AT TRIAL EXCEEDED WHAT
IS PERMISSIBLE PURSUANT TO THE
FRESH COMPLAINT RULE.
[(Partially raised below)]

V. THE STATE IMPROPERLY BOLSTERED THE
CREDIBILITY OF K.B. BY ELICITING
TESTIMONY ABOUT AN IRRELEVANT AND
HIGHLY PREJUDICIAL TATTOO SHE ACQUIRED
IN RELATION TO THE ALLEGED SEXUAL
ASSAULT.
[(Not raised below)]

A-3262-17T2
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VI. THE TRIAL COURT ERRED IN BARRING
EVIDENCE PURSUANT TO THE RAPE SHIELD
LAW THAT WENT TO THE CRUX OF THE
DEFENSE.

A. THE [TRIAL] COURT . . . ERRED IN
REDACTING [DEFENDANT]'S
STATEMENT AND PRECLUDING
TESTMONY ABOUT THE ALLEGED
VICTIM'S SEXUAL ORIENTATION AS
SUCH EVIDENCE IS NOT COVERED
BY THE RAPE SHIELD STATUTE AND
IT WAS PERTINENT TO
[DEFENDANT]'S DEFENSE IN THE
CASE.

B. THE [TRIAL] COURT . . . ERRED IN
REDACTING [DEFENDANT]'S
STATEMENT AND PRECLUDING
TESTIMONY ABOUT THE ALLEGED
VICTIM LOSING HER VIRGINITY AS
IT WAS HIGHLY MATERIAL TO THE
DEFENSE AND WAS NOT PROFERRED
TO DEMEAN THE ALLEGED VICTIM
OR INVADE HER PRIVACY.

C. [DEFENDANT] WAS DENIED A
FAIR TRIAL AND HIS SIXTH
AMENDMENT RIGHT TO TESTIFY IN
HIS OWN DEFENSE BECAUSE THE
TRIAL COURT APPLIED ITS RAPE
SHIELD RULINGS TO [DEFENDANT]'S
AFFIRMATIVE TESTIMONY AND
PREVENTED HIM FROM SUFFI-
CIENTLY TESTIFYING IN HIS OWN
DEFENSE.

A-3262-17T2
4
VII. [DEFENDANT] WAS DENIED A FAIR TRIAL
UNDER THE UNITED STATES CONSTITUTION
AND THE NEW JERSEY CONSTITUTION AS A
RESULT OF THE STATE'S FAILURE TO
DISCLOSE A COMPUTER FORENSIC ANALYSIS
REPORT UNTIL THE EVE OF TRIAL.

VIII. [DEFENDANT] WAS DENIED HIS
FUNDAMENTAL RIGHT TO A FAIR TRIAL
UNDER THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS AS A RESULT OF THE
CUMULATIVE EFFECT OF THE TRIAL COURT'S
ERRORS.

IX. THE [TRIAL] COURT . . . ERRED IN FAILING
TO MERGE THE EIGHTH COUNT AND
ORDERING A CONSECUTIVE SENTENCE ON
THAT COUNT.

X. THE RECORD BELOW FAILS TO ESTABLISH
THE GUILT OF [DEFENDANT] BEYOND A
REASONABLE DOUBT THROUGH LEGALLY
COMPETENT AND FACTUALLY SUFFICIENT
EVIDENCE, RE[QU]IRING THE ENTRY OF A
JUDGMENT OF ACQUITTAL BY THIS COURT.

Based on our review of the extensive record on appeal, in light of the applicable

law, we reject defendant's contentions and affirm.

During the five-day trial, the State presented the testimony of Kendra; her

best friend and fresh complaint witness, V.R. (Valerie); and two law

enforcement officers. The State introduced in evidence numerous exhibits,

A-3262-17T2
5
including photographs that depicted the private parts of defendant, his wife, A.L.

(Ann), and Kendra; sex toys; and defendant's video-recorded statement to police.

Defendant testified on his own behalf and presented the testimony of three

character witnesses, including his wife.

We summarize the pertinent facts from the trial testimony. Kendra was

twenty-two years old when she testified. She described her devolving

relationship with defendant, who is her father's half-brother, over the course of

two trial days.

All her life, defendant and Kendra spent time together during holidays and

at dinners, but "always with the family." At some point, defendant took Kendra

and her brother out shopping to select their birthday and Christmas presents. By

the time Kendra was attending middle school, however, defendant began taking

her to the mall and restaurants, without her brother. Defendant described those

occasions as his "niece bonding time alone with [her]." Kendra "looked up to

[defendant]." They "were very close." They "would talk about everything."

When her eighth-grade school year was ending and Kendra was still

thirteen years old, defendant began asking questions about her boyfriends and

sex life. In turn, Kendra asked defendant questions about sex because "he was

always talking about sex so [she] figured he would know the answer[s]."

A-3262-17T2
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Kendra's relationship with defendant markedly changed when defendant

sent Kendra text messages requesting photographs of her breasts. Initially

assuming defendant was joking, Kendra did not respond. But when defendant

persisted, she complied. Kendra was fourteen years old when those requests

began. Over the course of the following year, defendant asked Kendra for

photographs of her breasts "all the time." Kendra complied.

Kendra further testified that defendant touched her breasts "underneath

the bra," on more than twenty occasions, when she was between the ages of

fourteen and seventeen. That conduct continued most often at Kendra's home,

but occasionally at defendant's house and in his car.

Just prior to Kendra's fifteenth birthday, defendant asked Kendra whether

she had tried "sex toys." When Kendra replied that she did not have a sex toy,

defendant said he would purchase a "dildo" for her. The next week, defendant

purchased sex toys at an adult store while Kendra remained in the car.

Defendant showed Kendra how to use one of the toys.

On the way back to Kendra's home that evening, defendant parked at a

train station so defendant could "see and touch" Kendra's breasts. This time,

defendant lifted Kendra's shirt and put his mouth on her breasts. He also touched

her vagina. After "a little bit," defendant kissed Kendra and told his niece she

A-3262-17T2
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"was a good kisser." When they arrived at Kendra's home, defendant lifted

Kendra's shirt and kissed her breasts before she left his car. They also discussed

how Kendra could bring the "dildos" into the house without her mom noticing.

A few days later, Kendra sent defendant a text message, stating she "didn't

want that to happen again." Defendant assured her that "he wouldn't do it again."

The next time they were together, Kendra specifically expressed she "didn't want

him to touch [her] vagina." Defendant persistently asked whether he could

continue to touch her breasts. Kendra responded that was "okay" because she

didn't want to "upset him" and "ruin" their relationship.

After Kendra's fifteenth birthday, defendant began sending text messages

and emails attaching photographs of his penis, and naked pictures of his wife.

Defendant also sent Kendra a video of Ann performing oral sex on him, and a

link to a pornographic website.

Kendra detailed their final sexual encounter, which occurred in May 2013,

when Kendra was seventeen years old. Defendant went to Kendra's home to

take her to dinner. Asking if he could see the bearded dragon pet he had

purchased for her, defendant and Kendra entered her bedroom. Defendant sat

on Kendra's bed, brought her over, lifted her shirt and touched her breasts. He

A-3262-17T2
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then unbuttoned her pants and inserted his finger in her vagina. Kendra

"tightened [her] body up," and defendant removed his finger.

While Kendra used the bathroom in her mother's room, defendant waited

on her mother's bed. When Kendra exited the bathroom, defendant placed

Kendra on the bed and put his mouth on her vagina for about "about ten

seconds." Kendra got up and said: "Let's go to dinner." Defendant told Kendra

"he couldn't wait until [she] turned eighteen to fuck [her]." After dinner, as they

were driving home, defendant put his hand down Kendra's pants, inserted his

finger in her vagina, and placed his finger in his mouth.

During the next week or so, Kendra blocked defendant's number from her

cellphone, and blocked him from all her social media accounts. On June 14,

2013, defendant went to Kendra's house and asked why she had blocked him,

and whether Kendra "had told anyone that would cause any trouble." Kend ra

said she had not told anyone. At various times over the course of the abuse,

however, Kendra had confided in Valerie. On June 18, Kendra gave a statement

to Detective Kelly Krenn of the Bergen County Prosecutor's Office (BCPO),

recounting defendant's abuse.

Shortly after Kendra's interview on June 18, 2013, Krenn and two local

police officers went to defendant's home. Defendant voluntarily agreed to

A-3262-17T2
9
accompany the officers to the BCPO for an interview. After waiving his

Miranda3 rights, defendant gave a statement to police. Defendant denied

touching Kendra inappropriately, but he corroborated many of Kendra's

allegations. In that regard, defendant minimized his conduct or claimed she was

the initiator.

Here are but a few examples: defendant acknowledged he engaged in

conversations of a sexual nature with Kendra, but said she initiated those

discussions; Kendra showed him her breasts, but did so because she was

concerned about the appearance of veins; defendant sent Kendra a photograph

of his "pubic trimming" because she had inquired about that type of personal

grooming; defendant sent Kendra a video of a girl masturbating because "she

had questions about masturbation." Defendant acknowledged he purchased a

"dildo" for Kendra's fifteenth birthday but said she had asked him to do so.

Defendant further acknowledged Kendra sent him photographs of her breasts

and he sent photographs of Ann posing topless. Defendant said the photographs

were exchanged at Kendra's request.

Defendant was arrested at the conclusion of his statement. Police

thereafter searched defendant's computer, and Kendra's computer and

3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3262-17T2
10
cellphones. Among other items seized from both computers, police found

photographs of Kendra in a bra and her bare breasts; photographs of defendant's

penis; nude photographs of Ann; and a still image from a video of defendant

receiving oral sex from Ann. Nothing of evidentiary value was recovered from

Kendra's cellphones.

Defendant's trial testimony was consistent with his statement. Two of his

long-time acquaintances and Ann told the jury defendant has a reputation for

telling the truth.

After deliberating about half a day, the jury returned a guilty verdict on

seven counts charged in the nine-count Bergen County indictment, as follows:

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) (count one);

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(a) (counts two and three);

third-degree criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts four and five);

third-degree endangering the welfare of a child (EWC), N.J.S.A. 2C:24-4(a), as

a lesser-included offense of second-degree EWC (count eight); and fourth-

degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count nine). The jury

acquitted defendant of third-degree criminal sexual contact, N.J.S.A. 2C:14-3(a)

(count six). The third-degree EWC offense charged in count seven was not

A-3262-17T2
11
submitted to the jury for its consideration. The judge sua sponte dismis sed that

count at the end of the State's case, finding it duplicative of count eight.

On February 2, 2018, the trial judge sentenced defendant to an eighteen-

year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2, on count one, and a consecutive eight-year prison term on count two.

Pertinent to this appeal, the judge also sentenced defendant to a consecutive

four-year prison term on count eight. The sentences on the remaining counts

were ordered to run concurrently with each other and concurrently with the

sentences imposed on counts one, two, and eight. Defendant's sentence included

registration under Megan's Law, parole supervision for life, restitution, and the

requisite fines. Following defendant's sentencing, he filed this appeal.

II.

Although defendant raises a litany of trial errors in his merits brief, during

argument before us, he primarily focused on the "egregious violations" of his

constitutional rights in the taking of his statement. We therefore commence our

review with the contentions asserted in points I and II.

The trial judge conducted a pre-trial hearing on the admissibility of

defendant's videotaped statement to Krenn and the other officers. See N.J.R.E.

104(c). The State presented the testimony of Krenn, and introduced in evidence

A-3262-17T2
12
the video recording of defendant's statement 4 and signed Miranda form.

Defendant and Ann testified on defendant's behalf.

According to Krenn, on June 18, 2013 at 3:30 p.m., he and two officers

drove to defendant's home in an unmarked car. Earlier that day, Kendra had

given her statement detailing her allegations against defendant. Police did not

have a warrant for defendant's arrest and had not made a "pre-determin[ation] to

arrest him."

When Ann answered the door, Krenn asked to speak with defendant; Ann

mentioned nothing about defendant's medical procedure. When defendant came

to the door, Krenn asked if he would step outside so that they could speak in

private "to avoid embarrass[ing]" defendant. As they approached the officers'

car, Krenn told defendant they "were conducting an investigation" and wanted

to speak with him about "incidents that had occurred" involving the Berry

family. Defendant asked for more information, but Krenn said he would rather

continue their conversation at the BCPO.

When asked whether he would accompany them, defendant "voluntarily

agreed," stating: "He had no problem." No threats were made for defendant to

do so. Defendant was not handcuffed; he was not under arrest; and he placed

4
The record on appeal does not contain the video recording.
A-3262-17T2
13
himself in the rear seat of the car. Defendant mentioned he had undergone a

medical procedure earlier. Defendant neither elaborated as to the nature of the

procedure nor expressed any concern about continuing the conversation with the

officers. Defendant did not appear to be under the influence of alcohol or drugs;

he spoke clearly to the officers and responded to their questions.

After obtaining defendant's pedigree information, Krenn began to

administer Miranda rights. When defendant interrupted and asked whether he

was under arrest, Krenn said: "Not at this point. We don't even know what

you're gonna say." Defendant assured detectives he was "gonna give [them] one

hundred percent honesty . . . so it's not a problem," and Krenn reiterated that the

officers needed to "make sure" they read defendant his Miranda rights. Pertinent

to this appeal, defendant responded: "But then . . . okay, I understand that. But

then I need a lawyer. . . . But I'm not lawyering up, I'm not doing anything like

that . . . I'm just saying." Krenn then explained defendant "at any time" could

"lawyer up," and read defendant each Miranda right. Defendant indicated he

understood his rights and agreed to waive them by initialing and signing the

Miranda rights form. Defendant also verbally expressed that he was willing to

speak with the officers.

A-3262-17T2
14
The police officers interrogated defendant for about two and a half hours.

The transcript of the interrogation spanned 163 pages. On page thirty-four, after

defendant was advised that a computer analyst would review all his text

messages, the following exchange occurred:

DEFENDANT: Let me just ask you one more question
before I go any further.

KRENN: Okay.

DEFENDANT: If I ask for a lawyer right now, I'm just
asking, I'm not saying I want a lawyer right now.

KRENN: Okay.

DEFENDANT: If I ask for a lawyer right now, am I
being arrested?

KRENN: I don't know, I would have to run it by . . .
my bosses.

When defendant asked whether he could leave, Krenn again responded he

would have to "check with [his] bosses." After detectives explained they were

"trying to figure out the story[,]" defendant continued to respond to the officer's

questions, minimizing his conduct and denying digitally penetrating Kendra's

vagina. Defendant did not invoke his right to counsel during the questioning.

During the interrogation, defendant was provided water and permitted to

smoke a cigarette outside the interview room. Defendant also was permitted to

A-3262-17T2
15
retain his cellphone. In fact, he sent text messages to his wife during the

questioning.

Defendant's wife testified to a different version of the officers' arrival at

her home. Ann said defendant was asleep, having had a colonoscopy earlier that

day. She asked the officers if defendant could call them later. The officers

denied Ann's request, and told her they needed to speak with her husband

immediately. When defendant was outside, Ann heard the officers state they

needed to speak with him about his sister-in-law. Despite her calls and texts,

Ann did not hear from defendant until about three hours after he left.

Similar to Ann's testimony, defendant testified he had a colonoscopy

earlier that day and was sleeping at the time the officers arrived at his home.

The officers said they wanted defendant to go with them and answer some

questions about his sister-in-law. Because he just had a colonoscopy and was

feeling "groggy" and "tired," defendant asked whether his wife could "take [him]

later . . . after dinner." The officers denied defendant's request. Defendant

acknowledged the officers never said he was "required" to accompany them to

the BCPO. But defendant testified he was never advised he could refuse,

claiming he "really didn't have a choice but to go with them."

A-3262-17T2
16
When he gave his statement, defendant was aware his interview was audio

and video recorded. As his Miranda rights were read to him, defendant thought

he was "under arrest." After the officers clarified the reason for informing

defendant of his Miranda rights, however, defendant concluded he was not

"being arrested at that time." Defendant said he was "afraid" that if he did not

answer the detectives' questions, he would "get arrested and go to jail."

Defendant testified the officers never told him he was free to leave.

Defendant acknowledged he understood his Miranda rights and signed the

waiver form. He claimed when he told the officers, "I'm not lawyering up," he

meant, "I'm willing to cooperate, but I need a lawyer." Defendant explained he

"was definitely willing to talk to [the officers], but [he] wanted a lawyer there

because" he "didn't know if [he] was being arrested." He felt "[he] need[ed] a

lawyer there to protect [him]."

In his twenty-six-page written opinion, the judge rejected defendant's two-

fold argument that he was illegally arrested in violation of the Fourth

Amendment, and his Miranda rights were violated in contravention of the Fifth

Amendment. In doing so, the judge squarely addressed the issues raised in view

of his detailed recitation of the testimony adduced at the hearing and the

governing law.

A-3262-17T2
17
Regarding defendant's argument that he was illegally arrested, the judge

initially recognized there was "no dispute at the time the detectives arrived at

defendant's home on June 18, 2013, they did not have probable cause to arrest

him." The judge found Krenn credible "not only as to the events leading up to

his arrival at defendant's house, but also as to the conversations with defendant

at the house and en[]route to the BCPO."

Conversely, the judge discredited defendant's testimony "that he felt

compelled to go with the detectives to the BCPO; that he believed he had no

choice but to go with them; and that he was still 'groggy' or otherwise debilitated

from an earlier medical procedure . . . ." To support his assessment, the judge

cited the video recording of defendant's interview, during which defendant

displayed "no apparent disability or indication that [he] was affected by an

earlier medical procedure." Instead, defendant was "attentive and keenly alert;

[he was not] 'dozing off' or lethargic; nor [wa]s his speech slurred."

The judge further found:

Krenn did not arrive at defendant's residence with the
purpose to arrest him, but to obtain information from
him. No physical force, emotional cajoling, or trickery
was employed to lure defendant to the BCPO; and the
video record reveals that defendant was not suffering
from any condition which the detectives preyed upon,
knowing that he was impaired, unable to understand

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18
what was occurring, or make a rational decision to
voluntarily go with them to the BCPO.

Accordingly, the judge concluded based on "the totality of circumstances

surrounding the initial encounter at defendant's residence, en[]route to the

BCPO, and at the commencement of the interview process, defendant was not

in custody nor was he illegally seized from his home."

Citing our Supreme Court's decision in State v. P.Z., the judge further

recognized an individual need not be formally arrested for Miranda purposes.

152 N.J. 86, 103 (1997). Instead, courts must consider whether a suspect's

freedom has been significantly deprived. Ibid. After comprehensively

examining defendant's statement, the judge determined "[t]he beginning of the

interview can be characterized as non-custodial."

Referencing the exchange that commenced on page thirty-four of the

transcript, the judge correctly recognized "the setting evolved into a custodial

interrogation." The judge then scrupulously analyzed the administration of

Miranda rights, rejecting the suggestion that defendant equivocated in his

request for an attorney. The judge elaborated:

Having had the op[p]ortunity to view the videotaped
interview, including the tone and demeanor of
defendant during the interview and the context of the
statement regarding his inquiry regarding an attorney,
that particular statement was not a request for an

A-3262-17T2
19
attorney. Defendant merely asked about the procedure
if he requested an attorney which is readily
distinguished from other statements considered to be
requests for counsel. See Maglio v. Jago, 580 F.2d 202,
203 (6th Cir. 1978) ("Maybe I should have an
attorney."), and United States v. Clark, 499 F.2d 802,
805 (4th Cir. 1974) ("I had better talk to a lawyer.").
Moreover, there is no dispute that defendant was told
that he had a right to a lawyer and could have requested
an attorney. Defendant's statement was not such a
request nor was the statement at the beginning of the
interview, "I'm not lawyering up," a request for an
attorney, despite his testimony to the contrary.

The judge concluded: "Based on the totality of the circumstances, the

State . . . demonstrated beyond a reasonable doubt that defendant was apprised

of his Miranda rights and that he knowingly and intelligently waived those

rights." The judge entered an accompanying order denying defendant's motion

to suppress his statement to the officers.

Defendant reprises his arguments before us. Defendant primarily

contends he was illegally arrested when the interrogation began and, in any

event, the exchanges with Krenn quoted above demonstrate he invoked his right

to counsel which, in turn required the detective to cease any interrogation. We

disagree substantially for the reasons expressed by the trial judge in his thorough

written opinion. We add only the following.

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20
In reviewing a suppression ruling, we are mindful we must uphold a trial

court's factual findings, "regardless of whether the evidence is live testimony, a

videotaped statement, or documentary evidence" if they are supported by

sufficient credible evidence in the record. State v. S.N., 231 N.J. 497, 514

(2018) (citing State v. S.S., 229 N.J. 360, 379 (2017)). "We accord no deference,

however, to a trial court's interpretation of law, which we review de novo." State

v. Dunbar, 229 N.J. 521, 538 (2017).

The Fourth Amendment to the United States Constitution and Article I,

Paragraph 7, of the New Jersey Constitution protect "[t]he right of the people to

be secure . . . against unreasonable searches and seizures." "A seizure occurs if,

'in view of all the circumstances surrounding the incident, a reasonable person

would have believed that he [or she] was not free to leave.'" State v. Sloane,

193 N.J. 423, 429 (2008) (alteration in original) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)).

When evaluating the reasonableness of a detention, the "totality of

circumstances surrounding the police-citizen encounter" must be considered.

State v. Privott, 203 N.J. 16, 25 (2010) (citation omitted). "There is no simple

test for determining at which point a prolonged investigative stop turns into a de

facto arrest, but important factors include unnecessary delays, handcuffing the

A-3262-17T2
21
suspect, confining the suspect in a police car, transporting the suspect, isolating

the suspect, and the degree of fear and humiliation engendered by the police

conduct." State v. Shaw, 237 N.J. 588, 612-13 (2019) (citing State v. Coles, 218 N.J. 322, 344 (2014)).

Here, the trial judge considered the "totality of the circumstances" and

found defendant voluntarily accompanied the detectives to the BCPO. The

judge specifically found Krenn's testimony that defendant voluntarily

accompanied detectives "credible," and defendant's testimony that he was forced

to accompany detectives "not credible." We defer to those findings where, as

here, they are supported by the record. We therefore conclude defendant's
Fourth Amendment rights were not violated.

"In the context of custodial interrogation, once a defendant clearly and

unambiguously invokes his right to remain silent, interrogation must cease."

State v. Maltese, 222 N.J. 525, 545 (2015) (citing State v. Diaz-Bridges, 208 N.J. 544, 564 (2012)). "When a suspect's words are ambiguous, th[e] Court has

permitted police to follow up by asking questions that are designed to clarify the

meaning of those words." State v. Alston, 204 N.J. 614, 623 (2011). "Appellate

courts considering whether a suspect has invoked or even ambiguously invoked

the right to remain silent must consider the totality of the circumstances,

A-3262-17T2
22
including all of the suspect's words and conduct." Diaz-Bridges, 208 N.J. at
569.

Defendant was not reluctant to speak with the officers. On the contrary,

he waived his Miranda rights, and spoke openly about his relationship with

Kendra. Indeed, at multiple times throughout the interrogation, defendant

volunteered information without prompting from detectives. We are therefore

satisfied from our review of the record that the trial judge correctly determined

defendant's Fifth Amendment rights were not violated.

III.

Turning to point III, defendant claims the trial judge improperly permitted

Krenn to testify at trial about the "deception tactics" he utilized when

questioning defendant, and the opinion he expressed during the interrogation

that defendant was not truthful. We disagree.

During Krenn's direct examination, the prosecutor elicited testimony from

Krenn about the interrogation "tactics" he used here, where the allegations

involved sexual assault on a minor. Krenn told the jury he used "minimization"

of defendant's "role" in the acts, and "blamed [Kendra] throughout the

interview," referring to her as "the aggressor." Krenn further testified he "used

A-3262-17T2
23
deception" by informing defendant the cellphones would reveal photographic

evidence, although Krenn "didn't believe that because the stuff was deleted."

Krenn told the jury he employs these tactics due to the "sensitive subject"

matter that "[n]o one wants to talk about it." Krenn elaborated:

It's not like you're confessing to, you know, a
bank robbery or a burglary, or something like that. This
is a very serious sensitive crime and it's very difficult,
so we give them a minimization theme to kind of lessen
the blow for them so they can say, well it was . . . you
know, I did it, but it wasn't my fault it was the victim's
fault.

Defense counsel did not object to the prosecutor's inquiry.

After the video recording of defendant's interrogation was played for the

jury, and before court recessed for the day, the judge issued the following

instruction:

There is one thing I just want to leave you with, with
respect to this tape and this testimony. You heard
Detective Krenn say there are various techniques that
they use, which . . . and he'll go into more, I'm sure, on
direct and cross-examination. One of the things that
you heard during the tape was that the detective saying
that they believe [Kendra] and they don't believe the
defendant. Whatever anybody else thinks or believes
about any of the witnesses is irrelevant. Only you, the
jury, are the ones who make determinations as to
credibility. So, because a particular technique is used
saying we believe you, we disbelieve you, we believe
that person, only you make credibility determinations.

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24
On cross-examination, defense counsel further questioned Krenn about

the tactics the detective employed. In addition, defense counsel specifically

asked Krenn whether he "accept[ed] as true" some aspects of defendant's

statement, including that defendant sent Kendra "certain pictures" and gifted her

"the sex toy." Counsel then pressed Krenn about the "numerous, numerous,

numerous denials of any touching" that Krenn was not "willing to accept."

Krenn agreed, explaining that conduct was the only aspect of Kendra's statement

that defendant would not admit. Counsel asked: "[A]nd until he did [admit that

conduct], in your estimation, [defendant] was not being totally honest with you,

right?" Krenn responded: "At that point, I didn't know . . . if he was being

totally honest with me."

In response to that line of inquiry, the prosecutor redirected Krenn as to

why he did not believe defendant's denials. Overruling defense counsel 's

objection, the judge permitted Krenn to testify about defendant's evolving

account – from total denial to admissions – that matched some of Kendra's

account.

At the conclusion of Krenn's testimony, the judge again instructed the

jury: "Obviously, I've said this before, just because a detective or somebody

else says they believe or don't believe [w]hat the defendant or anybody else says,

A-3262-17T2
25
is irrelevant for your purposes. It's up to you to determine credibility." And,

during his final jury charge on the jury's function, the judge instructed: "You,

and you alone, are the sole and exclusive judges of the evidence, of the

credibility of the witnesses, and the weight to be attached to the testimony." See

Model Jury Charges (Criminal), "Criminal Final Charge" (rev. May 12, 2014).

We apply a deferential standard of review to the trial court's evidentiary

rulings. State v. Scott, 229 N.J. 469, 479 (2017). We will only reverse if the

trial court's evidentiary rulings were "so wide of the mark that a manifest denial

of justice resulted." State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation

omitted). Where there was no objection to the claimed error at trial, we review

the matter for plain error, and may reverse only if the error was "clearly capable

of producing an unjust result." R. 2:10-2; see also State v. R.K., 220 N.J. 444,

456 (2015).

As noted, defendant did not object to the elicitation of Krenn's

interrogation techniques on direct examination and made further inquiry of those

"tactics" on cross-examination. We discern no error, let alone plain error, in the

admission of that testimony.

Even if the detective's testimony improperly expressed his belief as to

defendant's veracity, see State v. Tung, 460 N.J. Super. 75, 101-02 (App. Div.

A-3262-17T2
26
2019) (recognizing a witness may not offer an opinion on another witness's

credibility), or guilt, see State v. Frisby, 174 N.J. 583, 593-94 (2002) (finding a

police officer testifying as a fact witness was not allowed to opine regarding

whether the defendant committed the crime), the trial judge's timely and

repeated jury instructions explained both the purpose of the testimony and

clearly explained that the jurors were the "final arbiters" of credibility. The jury

was presumed to have followed the trial court's instructions. State v. Smith, 212 N.J. 365, 409 (2012).

IV.

We next consider defendant's contentions raised in point IV, that the trial

judge erroneously: (1) admitted the fresh complaint testimony of Valerie; and

(2) failed to grant a mistrial after the State elicited testimony about Kendra's

disclosure to D.Z. (Dana), whom the judge had precluded from offering fresh

complaint testimony. We likewise review these evidentiary decisions under an

abuse of discretion standard, Scott, 229 N.J. at 479, and we review for plain

error, where there was no objection raised before the trial court, Rule 2:10-2.

The fresh complaint doctrine allows the State to admit "evidence of a

victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate

the inference that the victim's initial silence or delay indicates that the charge is

A-3262-17T2
27
fabricated." R.K., 220 N.J. at 455. The victim must make the statement

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

assault, to a person the victim would ordinarily turn to for support." Ibid. "Only

the facts that are minimally necessary to identify the subject matter of the

complaint should be admitted; the fresh complaint testimony is not to be used

'to corroborate the victim's allegations concerning the crime.'" Id. at 456

(quoting State v. Bethune, 121 N.J. 137, 146 (1990)).

Prior to trial, the judge conducted an N.J.R.E. 104(a) hearing on the State's

motion to admit fresh complaint evidence from Valerie and Dana. Valerie

testified that Kendra was her "best friend"; they "tell each other everything."

During their freshmen year in high school, Kendra disclosed that something was

upsetting her about defendant. Valerie recounted four separate conversations

over the next few years, during which Kendra said defendant: (1) requested

naked photographs of Kendra; (2) touched her breast and "put his hand in her

pants" at the train station; (3) "slid[] his hand up her shirt" when she babysat his

daughter; and (4) digitally penetrated Kendra and "tried to put his head down in

her vagina."

Kendra told Valerie about each incident "within a reasonable amount of

time" after they occurred. "Not as soon as they happened, but . . . about a week

A-3262-17T2
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later. Whenever [Kendra] could, whenever [they] saw each other . . . ." Valerie

recalled that Kendra was "very upset" during their conversations and "really

embarrassed."

During the hearing, the State also presented the testimony of Dana, who

was employed by Kendra's school district as a student assistance coordinator

and advisor. After receiving information that Kendra might have been sexually

abused by a family member, Dana called Kendra into her office and directly

questioned her about the allegations. Although Kendra physically recoiled, she

denied the abuse. About ten days later, Kendra told Dana that she was being

abused. The following day, Dana met with Kendra, her mother, and the school

resource officer, who was also a local police officer. Kendra detailed the

multiple sexual encounters she had with defendant.

In a written opinion accompanying the September 25, 2017 order, the trial

judge cogently examined the testimony adduced at the hearing and cited relevant

case law. The judge granted the State's motion to permit fresh complaint

testimony of Valerie but denied the motion as to Dana. According to the judge:

"[Valerie] and [Kendra] are childhood friends. [Valerie]'s testimony that they

'tell each other everything' is credible. Contrary to defendant's allegations, the

disclosures were not prompted by interrogation or questioning from [Valerie]

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29
but were impromptu disclosures during conversations between two friends."

Because Kendra's initial disclosure was made shortly after the incident, the

judge rejected defendant's argument that the disclosure was not made within a

reasonable time after the incidents allegedly occurred.

Conversely, the judge found the relationship between Dana and Kendra

"was more akin to a therapist and patient, rather than a close confidant." Noting

Dana "sought out" Kendra and made "at least five to seven [unsuccessful]

attempts to make [Kendra] disclose," the judge found Kendra's "disclosure to

[Dana] after the approximate [ten-]day period of silence, d[id] not qualify for

admission" under the fresh complaint rule.

A. Valerie's Trial Testimony

At trial, the State's direct examination of Valerie was limited to her close

relationship with Kendra; the victim's disclosure that defendant was "molesting

her" when they were thirteen or fourteen years old; and Kendra's demeanor when

she made that initial disclosure. Defendant posed no objection to those

inquiries. Immediately following the prosecutor's examination, and during the

final instructions, the judge correctly issued a limiting instruction that tracked

the instructions in the model jury charge. See Model Jury Charges (Criminal),

"Fresh Complaint" (rev. Feb. 5, 2007).

A-3262-17T2
30
On appeal, defendant contends Valerie's fresh complaint testimony should

have been barred because she was unable to recall "the time of year" Kendra's

disclosures were made, thereby "negat[ing] the claim that the disclosures were

made within a reasonable time after the alleged criminal acts." For the first time

on appeal, defendant claims Valerie's testimony about Kendra's demeanor when

she disclosed defendant's abuse exceeded the bounds of the fresh complaint rule.

Based on our review of the record, we are satisfied the trial judge properly

admitted Valerie's pointed testimony at trial. Valerie gave no details about the

disclosure, other than Kendra said: "Her uncle . . . [defendant, was] molesting

her"; there is no evidence in the record that Kendra's statements were coerced

or forced; and the judge correctly instructed the jury on the limited purpose of

fresh complaint testimony, namely, to dispel any negative inference from the

victim's assumed silence – and not as proof that defendant assaulted her. We

further agree with the trial judge that Kendra's disclosure was made within a

reasonable period of time after the abuse occurred.

Nor are we persuaded by defendant's belated claim that Valerie

improperly testified about Kendra's demeanor. Notably, defendant did not

object to that testimony, and on cross-examination, he asked several questions

about her demeanor. In any event, Valerie's testimony in this regard was based

A-3262-17T2
31
on her personal observations of her best friend and was highly relevant in

evaluating the victim's credibility. Indeed, pursuant to the fresh complaint

model jury charge, the judge instructed the jury: "You may consider the conduct

and demeanor of K.B. at the time of the complaint as well as her physical or

mental condition." Model Jury Charges (Criminal), "Fresh Complaint.".

We therefore discern no error, let alone plain error, in Valerie's testimony.

In sum, the jury was correctly instructed as to the limited purpose of Valerie's

testimony, overall.

B. Kendra's Trial Testimony Regarding Her Disclosure to Dana

Dana did not testify at trial. However, toward the end of the prosecutor's

direct examination of Kendra, testimony was elicited about the victim's initial

denial then eventual disclosure to Dana. After the short exchange – during

which no details about the disclosure were revealed – the judge sua sponte

instructed the jury to disregard Kendra's testimony that she told Dana about the

abuse.

Before questioning resumed, the judge reserved decision on defendant's

timely motion for a mistrial and issued the following curative instruction:

Ladies and gentlemen, I just want to give you one
caution. I know before we went to break, we had some
conversations regarding disclosures. Again, I ask that
you disregard, meaning that I know you heard it, but

A-3262-17T2
32
not consider it in any of your deliberations . . . any
disclosures allegedly made to any person, other than
. . . I think . . . you're going to hear . . . from [Valerie]
. . . in this case. But, any other alleged disclosures
should not come into your deliberations at all.

The following day, the judge denied defendant's mistrial motion, finding

the State did not purposely subvert his ruling; the testimony regarding Dana's

involvement was brief; and the jury likely would not "remember that portion of

the testimony due to the other testimony . . . ." The judge further noted he had

issued a curative instruction.

On appeal, defendant reprises his argument that the prosecutor's

"intentional" line of inquiry about Kendra's disclosure to Dana warranted a

mistrial; he now claims the judge's curative instruction was unclear. We

disagree.

The decision to grant a mistrial lies within the sound discretion of the trial

court and is reviewed for an abuse of that discretion. State v. Smith, 224 N.J.
36, 47 (2016). Absent a manifest injustice, we will not disturb that decision,

particularly where, as here, a curative instruction is an appropriate remedy.

State v. Jackson, 211 N.J. 394, 407-09 (2012).

Based on our review of the record, we discern no basis to disturb the

judge's determination that "there was absolutely . . . no intent by the State to get

A-3262-17T2
33
around, or avoid, or in some way deviate from [his] order to get some testimony

in that would have been otherwise barred." Indeed, Kendra's testimony

regarding her disclosure to Dana was fleeting and inconsequential in light of

Kendra's lengthy overall testimony. In any event, the judge issued a pointed

curative instruction. We presume the jury followed that instruction. Smith, 212 N.J. at 409.

Little need be said regarding defendant's remaining challenges to his

convictions, raised in points V through VIII, and X. We briefly consider each

in turn.

For the first time on appeal, defendant contends the State improperly

asked Kendra about the meaning of certain tattoos she acquired a few months

after her disclosure. Prior to Kendra's testimony, the prosecutor advised the

court and defendant, outside the jury's presence, that she intended to ask Kendra

about her tattoos. Counsel posed no objection.

Kendra told the jury her tattoo, written in another language, meant "I

suffered, I learned, I changed." When asked, Kendra explained: "It means I

suffered through this and then I learned how it was wrong and I changed and I'm

A-3262-17T2
34
here, you know, doing something." Kendra also said she had another tattoo,

depicting a heart with wings, that meant "whatever happens to me, my heart will

go on."

Defendant now claims that testimony was irrelevant under N.J.R.E. 401.

In the alternative, defendant claims the tattoo testimony improperly bolstered

Kendra's credibility, and its prejudicial effect outweighed its probative val ue

and should have been precluded under N.J.R.E. 403. The State counters the

testimony was relevant to prove "harm" under count seven of the indictment,

which charged EWC by abuse and neglect. See N.J.S.A. 2C:24-4(a)(1). As

noted, that count was dismissed at the end of the State's case.

When viewed through the prism of the plain error standard, we discern the

brief exchange at the end of Kendra's testimony, late in the trial day, was not

"clearly capable of producing an unjust result." R. 2:10-2. We assume

defendant agreed that the testimony was not harmful, as he never objected to its

admission. See State v. Nelson, 173 N.J. 417, 471 (2002) ("[It is] fair to infer

from the failure to object below that in the context of the trial the error was

actually of no moment") (quoting State v. Macon, 57 N.J. 325, 333 (1971)).

A-3262-17T2
35
B.

We are not persuaded that the trial judge erroneously barred evidence of

the victim's sexual orientation and Kendra's loss of virginity, as argued in

defendant's point VI. In that regard, the judge ordered defendant's statement

redacted accordingly and prohibited questioning on cross-examination of the

victim, "unless such information is revealed on direct examination." Again, we

review these evidentiary rulings for an abuse of discretion. Scott, 229 N.J. at
479.

In essence, New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7, prohibits

"evidence of the victim's previous sexual conduct" in prosecutions for certain

sexual offenses, including aggravated sexual assault, sexual assault, and

endangering the welfare of children. N.J.S.A. 2C:14-7(a). The statute protects

sexual assault victims from excessive cross-examination, guards against

improper use of evidence of a victim's previous sexual experience, and preserves

the integrity of trials. State v. Budis, 125 N.J. 519, 529 (1991).

An exception to the statutory exclusion exists if "evidence offered by the

defendant regarding the sexual conduct of the victim is relevant and highly

material," meets certain other statutory criteria, and has "probative value" that

"substantially outweighs . . . the probability that its admission will create undue

A-3262-17T2
36
prejudice, confusion of the issues, or unwarranted invasion of the privacy of the

victim." N.J.S.A. 2C:14-7(a); see also State v. Garron, 177 N.J. 147, 171 (2003)

(recognizing "if evidence is relevant and necessary to a fair determination of the

issues, the admission of the evidence is constitutionally compelled"). Whether

evidence of a victim's prior sexual conduct is admissible "is exquisitely fact-

sensitive and depends on the facts of each case." State v. Perry, 225 N.J. 222,

238 (2016) (internal quotation marks omitted).

Defendant's contention that "sexual orientation" does not fall within the

ambit of "sexual conduct" is belied by the inclusion of the term "life style"

within the statutory definition of sexual conduct. N.J.S.A. 2C:14-7(f). We agree

with the State that "the term, 'life style' is a[n anachronistic] synonym for sexual

orientation." Clearly, Kendra's bisexuality fell squarely within the definition of

sexual conduct.

Nor do we find any merit in defendant's assertion that Kendra's "statement

to her uncle about losing her virginity was relevant to his state of mind and his

defense on the endangering charges." Not surprisingly, defendant fails to cite

any legal authority to support his claim. Indeed, defendant's mental state is not

relevant under N.J.S.A. 2C:24-4(a). See State v. Bryant, 419 N.J. Super. 15, 17-

A-3262-17T2
37
18 (App. Div. 2011). In any event, defendant testified and explained his

behaviors to the jury.

In point VII, defendant contends the trial judge should have declared a

mistrial based on an "eve of trial" discovery violation. At issue was a report

prepared by the State's expert forensic analysist, detailing an examination of

three of Kendra's cellphones, and "an extraction CD that would show what was

or was not found on those cellphones." Apparently, the report, dated January 9,

2017, was provided two days prior to defendant's application – before the jury

had been sworn and Kendra had begun her testimony – but the disc had not yet

been provided.

Although the expert's analysis yielded no inculpatory information, the

defense argued it was entitled to review the disc containing the extraction and

"a copy of the hard drive of each of [Kendra's] phones, potentially to send to an

expert." Defense counsel acknowledged that any communications between

Kendra and defendant also would have been contained on defendant's cellphone,

but claimed defendant no longer had the same phone. Counsel could not

articulate the precise nature of the exculpatory information he expected would

A-3262-17T2
38
be found but speculated there could be messages to a third party, like Valerie,

regarding "some . . . kind of conspiracy."

In his oral opinion that followed argument, the trial judge denied

defendant's motion for an adjournment, which he deemed a motion for a mistrial

because the "jury would be lost" due to scheduling restraints and defendant's

understandable reluctance to waive double-jeopardy issues. The judge found

the lack of inculpatory information both "relevant" and "important" factors.

Acknowledging the defense had a "right" to conduct "a search for exculpatory

evidence," the judge nonetheless determined that "based on the evidence

presented," it was difficult to "perceive[e] what type of exculpatory information

could be on . . . the text messages, if any at all." Finding the State did not

"deliberate[ly] withhold[]" the discovery at issue, in view of the "volumes . . .

of discovery provided over the past four years" the judge found defendant's

application sought "a harsh remedy at this point."

Mistrials are an "extraordinary remedy" that trial courts should only grant

to "prevent an obvious failure of justice." State v. Yough, 208 N.J. 385, 397

(2011) (internal quotation marks omitted). Generally, the decision to grant or

deny a mistrial is "within the sound discretion of the trial judge." State v.

DiRienzo, 53 N.J. 360, 383 (1969). Appellate courts "should not reverse a trial

A-3262-17T2
39
court's denial of a mistrial motion absent a 'clear showing' that 'the defendant

suffered actual harm' or that the court otherwise 'abused its discretion.'" Yough,

208 N.J. at 397 (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)). When a

trial court decides a mistrial motion, it "must consider the unique circumstances

of the case." Smith, 224 N.J. at 47.

Applying those legal principles to the record before us, we conclude the

trial judge did not abuse his discretion in denying the extraordinary remedy of a

mistrial. To be sure, the expert's report and extraction disc should have been

provided as "continuing" discovery under Rule 3:13-3(f). But as the trial judge

aptly noted, considering defendant's inculpatory statements, it was "difficult" to

discern the type of exculpatory evidence that could have been found on Kendra's

cellphones, and defendant points to none on appeal.

As noted, defendant admitted sending nude photographs and videos to

Kendra and giving her a sex toy. Photographs of that evidence was not

recovered from Kendra's cellphones, but rather from defendant's and Kendra's

computers. Having "consider[ed] the unique circumstances of th[is] case,"

Smith, 224 N.J. at 47, we conclude the judge did not abuse his discretion in

denying defendant's request for a mistrial.

A-3262-17T2
40
D.

As to point VII, we reject defendant's contention that the cumulative effect

of the errors committed during his trial warrants reversal. Defendant has failed

to demonstrate any error or pattern of errors, rising to the level, either singly or

cumulatively, that denied him a fair trial. "A defendant is entitled to a fair trial

but not a perfect one." State v. R.B., 183 N.J. 308, 334 (2005) (internal

quotation marks omitted).

Moreover, we decline defendant's invitation to enter a judgment of

acquittal, as argued in point IX. As detailed above, Kendra's testimony,

corroborated in part by defendant's statements, supports the jury's verdict.

VI.

Lastly, we consider defendant's sentencing argument, raised in point IX.

Defendant claims the judge erred in failing to merge the EWC count charged in

count eight with the sexual assault counts; imposing sentence on count eight

consecutively to the sexual assault counts; and applying aggravating factor four,

N.J.S.A. 2C:44-1(a)(4) ("the defendant took advantage of a position of trust or

confidence") on count eight. We disagree.

Generally, we review a sentencing court's decision "in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). We do not

A-3262-17T2
41
"substitute [our] judgment" for that of the sentencing court. State v. Case, 220 N.J. 49, 65 (2014). That deference, however, "applies only if the trial judge

follows the Code and the basic precepts that channel sentencing discretion."

Ibid.

"At its core, merger's substantial purpose 'is to avoid double punishment

for a single wrongdoing.'" State v. Romero, 191 N.J. 59, 80 (2007) (quoting

State v. Diaz, 144 N.J. 628, 637 (1996)); see also State v. Miller, 108 N.J. 112,

116 (1987) (merger stems from the well-established principle that an accused

who has committed only one offense "cannot be punished as if for two").

"[M]erger implicates a defendant's substantive constitutional rights." State v.

Cole, 120 N.J. 321, 326 (1990).

Where the offenses are in fact indistinguishable, the resulting convictions

must be merged. State v. Best, 70 N.J. 56, 61 (1976). Accordingly, EWC

convictions should merge with sexual assault convictions when "the record

suggests no basis for the endangering conviction beyond the sexual assault."

State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992).

At sentencing, the judge rejected defendant's application for merger,

finding count eight "was not based upon the sexual assault only." Instead, that

count "was based upon other factors including the photographs sent, the videos

A-3262-17T2
42
sent, the conversations between the defendant and the victim, wherein the jury

was instructed, specifically, that those items could form the basis of a child

endangerment . . . affecting the morals of the child."

Indeed, during his final jury charge, the trial judge astutely charged the

jury on the sexual conduct committed by defendant where, as here, that conduct

was not specifically alleged in the indictment. See Model Jury Charges

(Criminal), "Endangering the Welfare of a Child, Sexual Conduct (Second

Degree) (N.J.S.A. 2C:24-4(a)(2))" (rev. Apr. 7, 2014), n.5. We therefore reject

defendant's argument that "neither the jury instructions nor the verdict sheet

required the jury to specify which acts constituted the basis for the [EWC]

conviction . . . ." We therefore discern no error in the judge's decision denying

merger.

We also reject defendant's argument that the judge erroneously imposed a

consecutive sentence on count eight by applying aggravating factor four here,

where the jury acquitted defendant of the second-degree EWC charge.

Recognizing that charge requires a "legal duty of care of the child," N.J.S.A.

2C:24-4(a)(2), the judge reasoned:

Certainly, the jury did not find that there was a parental-
type relationship or a relationship of responsibility,
which would . . . risen this offense to a second-degree
level. The court, however, . . . can consider the

A-3262-17T2
43
relationship between the parties and there certainly was
a breach of trust. There was clearly, in this instance, a
grooming procedure, a way to get the victim . . . to trust
[defendant], to be the favorite uncle.

Assessing and weighing the factors identified in State v. Yarbough, 100 N.J. 627, 642-44 (1985) – which defendant does not challenge – the judge found

consecutive sentences were appropriate. The judge considered the "different

type of offenses here," including: "sending photographs, sending videos, giving

[Kendra] inappropriate sex toys, telling her how to use them, sending her

pictures of his genitals," which "are different types, separate acts, independent

of the actual touching, part of the grooming process." We discern no error in

the judge's sentencing decision.

To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed.

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44

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