STATE OF NEW JERSEY VS. DAVID RICHARDSON(10-10-0860, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5810-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID RICHARDSON,

Defendant-Appellant.
_________________________________

Argued December 6, 2016 – Decided July 12, 2017

Before Judges Fisher, Ostrer and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment No. 10-10-0860.

Al Glimis, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr.
Glimis, of counsel and on the brief).

Joseph H. Enos, Jr., Senior Assistant
Prosecutor, argued the cause for respondent
(Sean F. Dalton, Gloucester County Prosecutor,
attorney; Mr. Enos, on the brief).

PER CURIAM

Defendant David Richardson appeals his convictions and

aggregate thirty-one-and-a-half year sentence on various charges
including burglary, sexual assault, criminal restraint, theft and

possession of a weapon for an unlawful purpose. Based on our review

of the record in light of the applicable law, we affirm defendant's

convictions and remand for entry of an amended judgment of

conviction and reconsideration of the penalties imposed in

accordance with this opinion.

On October 13, 2010, defendant was charged in an indictment

with first-degree aggravated sexual assault while armed with a

weapon, N.J.S.A. 2C:14-2(a)(4) (count one); first-degree

aggravated sexual assault during the commission of a crime,

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

N.J.S.A. 2C:14-2(c)(1) (count three); second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) (count four); second-degree

burglary, N.J.S.A. 2C:18-2(a)(1) (count five); third-degree

criminal restraint, N.J.S.A. 2C:13-2(a) (count six); third-degree

theft, N.J.S.A. 2C:20-3 (count seven); fourth-degree contempt of

a judicial order, N.J.S.A. 2C:29-9(a) (count eight); third-degree

possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d)

(count nine); and third-degree criminal mischief, N.J.S.A. 2C:17-

3(a)(1) (count ten).

2 A-5810-12T2
 During the fifteen-day bifurcated jury trial,1 defendant's

former girlfriend, B.M.,2 testified concerning a five-hour event

that took place in her apartment from the late evening of June 19,

2010, until approximately 3:30 a.m. on June 20, 2010. During this

time, B.M. alleged she was sexually assaulted, beaten and

threatened by defendant.

B.M. testified that she dated defendant for about three years

and that their relationship ended months before June 2010.

Defendant never lived at B.M.'s apartment and she never gave him

a key to her apartment. According to B.M., defendant did not have

permission to enter her apartment. Prior to June 19, 2010, B.M.

obtained a domestic violence final restraining order (FRO) barring

defendant from her apartment.

B.M. testified that on June 19, 2010, she was alone in her

apartment and not expecting anyone. She locked the doors and

windows and went to sleep in her bedroom. She awoke to the sound

of a door opening and saw defendant standing over her bed.

1
The court severed count eight charging a fourth-degree violation
of a court order from the trial on the remaining charges, and
conducted a second trial on count eight with the same jury
immediately after the jury returned its verdict in the first trial.
2
We employ initials for the victim and her neighbor, J.W., to
protect their privacy.

3 A-5810-12T2
 B.M. told defendant to leave and began screaming. Defendant

and B.M. struggled over her cell phone, causing B.M. to kick a

hole in the bedroom wall. Defendant took possession of B.M.'s cell

phone and put his hand over B.M.'s mouth as he examined the phone's

contents until he came across a photograph of a man that caused

defendant to become angry. B.M. never regained possession of the

cell phone during the evening.

Defendant removed B.M.'s clothes, forced her to have sexual

intercourse with him, and told her to stop screaming throughout

the attack. Defendant walked B.M. to the bathroom and made her

take a shower. Following the shower, defendant took B.M. to the

kitchen, lifted her onto the kitchen table, held her down, and

forced her to have sexual intercourse with him a second time.

Defendant took B.M. from the kitchen to her bedroom, where

he head-butted her and punched her in the face with a closed fist.

Defendant brought B.M. from the bedroom to the living room to

obtain access to her computer. Armed with a knife he had taken

from the kitchen, defendant threatened to kill B.M. unless she

provided her computer and Facebook passwords. B.M. complied.

Defendant became enraged upon reviewing B.M.'s emails and

Facebook posts, and he cut holes in B.M.'s furniture with the

knife. Defendant seized B.M.'s purse and took approximately $2000

cash from it. B.M. returned to her bedroom as defendant paced

4 A-5810-12T2
around her apartment. At approximately 3:30 a.m., B.M. heard her

neighbor J.W. return home to the adjoining apartment. B.M. waited

a few minutes, left her bedroom, and saw that defendant had just

departed.

B.M. ran to J.W.'s apartment. J.W. testified she opened her

door and saw B.M. visibly terrified and shaking, and not wearing

pants or underwear. B.M. told J.W. "he raped me" and asked J.W.

to call B.M.'s mother. After several unsuccessful attempts to

contact B.M.'s mother, J.W. called the police.

When the police arrived, J.W. went into B.M.'s apartment to

get B.M. clothing. J.W. observed that B.M.'s apartment was in

disarray. J.W. noticed "the sheets were pulled off the bed," and

there was "a huge hole in the [bedroom] wall."

Within minutes, police arrived at BM's apartment. Although

nothing was found to suggest a forced entry, police observed:

knife slashes in the living room furniture; blood on a pillow,

doorframe, kitchen floor, and kitchen cabinet; and a hole in a

bedroom wall. When arrested, defendant was in possession of his

cellphone, a set of keys, and $1652 in cash. And, that evening,

at a local hospital, medical personnel determined that BM's

injuries included a 'reddened area on [BM's] face,' 'some

swelling,' and a 'reddened area [on] her bottom lip.' Later, a

5 A-5810-12T2
State Police forensic scientist determined that DNA taken from

defendant after his arrest matched DNA from vaginal swabs of B.M.

The defense called Dr. Kathleen Brown, Ph.D., as an expert

in the areas of sexual assault nurse examinations, the actions of

the sexual assault response team, and the detection of injuries

as a clinical nurse. Brown opined that B.M. suffered "very minimal

injuries," explaining that victims who are held down with force

typically have bruises from the restraint, and that B.M. did not

show evidence of such bruises. Brown testified she was "not saying

[B.M.] wasn't sexually assaulted," but that B.M.'s injuries were

not consistent with the violence B.M. described. Brown

acknowledged there does not need to be any physical injury in a

sexual assault case. Brown also testified that DNA evidence is

helpful in cases where the assailant is unknown, but when there

is a relationship between the assailant and victim, it is "a common

strategy" for the accused to allege "the sex was consensual."

The jury acquitted defendant of first-degree aggravated

sexual assault as alleged in count one. Defendant was found guilty

of first-degree aggravated sexual assault during the commission

of a burglary (count two), second-degree sexual assault through

the use of force or coercion (count three), second-degree burglary

(count five), third-degree theft (count seven), third-degree

possession of a weapon (count nine), and criminal mischief (count

6 A-5810-12T2
ten). The jury also found defendant guilty of the lesser-included

offenses of simple assault (count four) and false imprisonment

(count six). At the conclusion of the second phase of the

bifurcated trial, defendant was convicted of fourth-degree

contempt of a court order (count eight).

Defendant was sentenced to a twenty-year custodial term for

first-degree aggravated sexual assault (count two) subject to an

eighty-five percent period of parole ineligibility pursuant to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive ten

years for second-degree sexual assault (count three) subject to

the requirements of NERA, and a consecutive eighteen months for

fourth-degree contempt of a court order (count eight). The court

imposed fines and penalties, including a $3000 fine for the Sex

Crime Victim Treatment Fund (SCVTF) under N.J.S.A. 2C:14-10. This

appeal followed.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
ON THE APPROPRIATE LESSER-INCLUDED OFFENSE OF
CRIMINAL TRESPASS VIOLATED DEFENDANT'S
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A
FAIR TRIAL. [U.S. Const., amends. VI, XIV;
N.J. Const., art. I, ¶ 1, 9 and 10]. (Not
Raised Below).

7 A-5810-12T2
POINT II

BECAUSE THE [TRIAL COURT] FAILED TO INSTRUCT
THE JURY THAT IT MUST BE UNANIMOUS WITH
RESPECT TO THE UNLAWFUL ACT ELEMENT OF
BURGLARY, AND THE VERDICT SHEET DID NOT
REQUIRE THE JURY TO SPECIFY WHICH UNLAWFUL ACT
[DEFENDANT] INTENDED TO COMMIT, THE DANGER OF
A PATCHWORK VERDICT REQUIRES REVERSAL. [U.S.
Const., amends. V, VI, XIV; N.J. Const., art.
I, ¶1, 9 and 10]. (Not Raised Below).

POINT III

THE IMPROPER ADMISSION OF B.M.'S HEARSAY TEXT
MESSAGES WITHOUT A LIMITING INSTRUCTION, AND
THE UNNECESSARY ADMISSION OF EVIDENCE OF A
COURT-ISSUED RESTRAINING ORDER PROHIBITING
[DEFENDANT] FROM B.M.'S APARTMENT, DENIED
[DEFENDANT] A FAIR TRIAL. [U.S. Const., amend.
XIV; N.J. Const., art. I, ¶ 1]. (Partially
Raised Below).

A. Evidence of the court-issued
restraining order prohibiting
[defendant] from B.M.'s apartment
should not have been allowed because
it was unnecessary to the State's
proofs and its prejudicial nature
substantially outweighed its
probative value[.]

B. The [trial court] erroneously
admitted B.M.'S testimony regarding
hearsay text messages without a
limiting instruction and without
conducting a [Rule] 403(a)
balancing test. (Partially Raised
Below)[.]

POINT IV

DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE
PROSECUTOR IN SUMMATION SUGGESTED THAT
[DEFENDANT] HAD VIOLENTLY ATTACKED B.M. IN THE

8 A-5810-12T2
 PAST, MISREPRESENTED THE PERTINENT LAW AND
SUGGESTED THAT THE DEFENSE WAS CONCOCTED.
[U.S. Const., amend. XIV; N.J. Const., art.
I, ¶ 1]. (Partially Raised Below).

POINT V

THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN
IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE
REVERSAL, THE AGGREGATE OF THE ERRORS DENIED
[DEFENDANT] A FAIR TRIAL. (Not Raised Below).

POINT VI

THE COURT ERRED IN FAILING TO MERGE THE
SECOND-DEGREE SEXUAL ASSAULT CONVICTION INTO
THE FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT
CONVICTION. ALTERNATIVELY, THE COURT VIOLATED
THE YARBOUGH STANDARDS IN IMPOSING CONSECUTIVE
SENTENCES ON THOSE CONVICTIONS.

POINT VII

THE COURT ERRED IN IMPOSING $3000[] IN SEX
CRIME VICTIM TREATMENT FUND FINES WITHOUT
CONSIDERING [DEFENDANT'S] ABILITY TO PAY THAT
ASSESSMENT. (Not Raised Below).

POINT VIII

THE TRIAL COURT ERRED BY FAILING TO CREDIT
[DEFENDANT] WITH ACCRUED JAIL CREDITS IN
VIOLATION OF STATE V. HERNANDEZ AND [RULE]
3:21-8.

I.

Defendant first argues the court erred by failing to instruct

the jury on criminal trespass, N.J.S.A. 2C:18-3(a), as a lesser-

included offense of burglary, N.J.S.A. 2C:18-2. Defendant did not

request a criminal trespass instruction at trial but now contends

9 A-5810-12T2
the court was required to sua sponte give the instruction because

the evidence permitted the jury to conclude that defendant entered

B.M.'s apartment without any intent to commit a crime therein.

Appropriate and proper jury charges, including instructions

on lesser-included offenses, are essential to a fair trial. State

v. Savage, 172 N.J. 374, 387 (2002); see also State v. Gonzalez,

444 N.J. Super. 62, 70 (App. Div.) (explaining that jury

instructions play a critical role in criminal prosecutions),

certif. denied, 226 N.J. 209 (2016). However, where a defendant

fails to request a jury charge or object to instructions that fail

to include it, we review for plain error and "disregard any alleged

error 'unless it is of such a nature as to have been clearly

capable of producing an unjust result.'" State v. Funderburg, 225

N.J. 66, 79 (2016) (quoting R. 2:10-2)); State v. McKinney, 223

N.J. 475, 494 (2015). "The mere possibility of an unjust result

is not enough." Funderburg, supra, 225 N.J. at 79. The "error at

trial must be sufficient to raise 'a reasonable doubt . . . as to

whether the error led the jury to a result it otherwise might not

have reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

Although a defendant's failure to object to jury instructions

is generally "considered a waiver to object to the instruction[s]

on appeal," State v. Maloney, 216 N.J. 91, 104 (2013), "a trial

10 A-5810-12T2
court has an independent obligation to instruct on lesser-included

charges when the facts adduced at trial clearly indicate that a

jury could convict on the lesser while acquitting on the greater

offense," Jenkins, supra, 178 N.J. at 361. Unless told it may

convict of a lesser-included offense, a jury may find a defendant

guilty of an uncommitted offense "simply because it prefers to

convict on some crime rather than no crime at all." State v. Short,

131 N.J. 47, 54 (1993).

However, "[a] trial court need not 'scour the statutes to

determine if there are some uncharged offenses of which the

defendant may be guilty,'" Funderburg, supra, 225 N.J. at 81

(quoting State v. Brent, 137 N.J. 107, 118 (1994)), or

"meticulously [] sift through the entire record . . . to see if

some combination of facts and inferences might rationally sustain"

a lesser-included charge. State v. Choice, 98 N.J. 295, 299 (1985).

It is only when "the record clearly indicates a lesser-included

charge – that is, if the evidence is jumping off the page – [that]

the court [must] give the required instruction." State v. Denofa,

187 N.J. 24, 42 (2006); Funderberg, supra, 225 N.J. at 81.

It is well settled that criminal trespass is a lesser-included

offense of burglary. State v. Clarke, 198 N.J. Super. 219, 225-26

(App. Div. 1985). Both criminal trespass and burglary require the

State to establish that a defendant entered a structure without a

11 A-5810-12T2
license or privilege to do so. See N.J.S.A. 2C:18-2; N.J.S.A.

2C:18-3(a). Burglary, however, requires proof of an additional

element: that the defendant enter the structure with the intent

to commit an offense therein. See N.J.S.A. 2C:18-2; State v.

Singleton, 290 N.J. Super. 336, 341 (App. Div. 1996).

Defendant argues the court erred by failing to provide an

instruction on criminal trespass because the evidence clearly

indicated defendant entered B.M.'s apartment without a purpose to

commit an offense therein. Thus, for the court to have had an

obligation to sua sponte charge the lesser-included offense of

criminal trespass there must have been evidence clearly indicating

defendant had an intent upon entering B.M.'s apartment other than

to commit an offense therein. See Funderburg, supra, 225 N.J. at

82.

We have carefully reviewed the record and reject defendant's

argument. Defendant's contention that he entered the apartment

with an intent only to have consensual sex with B.M. is unsupported

by any evidence clearly indicating that was the case. Nor does the

evidence B.M. sent him text messages in the days prior to the

incident show he entered her apartment with an intent other than

to commit a crime therein. No evidence was presented concerning

the substance of the text messages and therefore it is unknown how

or if they relate to defendant's entry into the apartment.

12 A-5810-12T2
 We are also not persuaded by defendant's argument that the

court was obligated to provide a sua sponte charge on criminal

trespass based upon the lack of testimony indicating there was a

forced entry into B.M.'s apartment. Defendant's means of entry

into the apartment did not establish his intent upon entry, and

the lack of evidence of a forced entry, when considered in the

context of all of the other evidence, did not present the court

with a clear indication defendant lacked an intent to commit a

crime upon his entry into the apartment. Thus, lack of a forced

entry did not provide the court with evidence "jumping off the

page" sufficient to warrant a sua sponte charge on criminal

trespass. Funderburg, supra, 226 N.J. at 81.

We similarly reject defendant's assertion that Brown's

opinion that B.M.'s physical injuries were inconsistent with a

sexual assault required a lesser-included criminal trespass

charge. Brown did not testify that B.M.'s injuries were

inconsistent with a sexual assault, but rather, she stated only

that the injuries were inconsistent with the type of physical

assault B.M. described. Brown also testified she was not offering

an opinion as to whether a sexual assault occurred. Moreover,

Brown's testimony is wholly unrelated to defendant's intent upon

entering B.M.'s apartment and therefore did not provide a clear

13 A-5810-12T2
indication to the trial court that a criminal trespass charge was

required.

In sum, defendant's attempt to weave the text messages, a

lack of evidence of forced entry, and Brown's testimony into an

obligation for the court to sua sponte charge the jury on criminal

trespass is without merit. The court has no responsibility to sift

through the evidence in search of a basis for a lesser-included

charge that was neither requested nor clearly indicated by the

record. Choice, supra, 98 N.J. at 299; Funderberg, supra, 225 N.J.

at 81.

II.

Defendant next argues the court deprived him of his

constitutional right to a unanimous verdict on the burglary charge.

More particularly, defendant claims the court erred by instructing

the jury it could find defendant guilty of burglary if it

determined defendant entered B.M.'s apartment with the intent to

commit any of the crimes alleged in the other counts of the

indictment.3 Defendant argues the court should have required that

3
The court instructed the jury it could find defendant guilty of
burglary if he entered B.M.'s apartment with an intent to commit
the offenses charged in "[c]ounts 1, 2, 3, 4, 5, 7, 8 and 9." The
court did not reference counts six or ten. Although the court made
reference to count eight, which charged defendant with fourth-
degree violating a court order, that charge was not presented to
the jury during the first phase of the bifurcated trial and the

14 A-5810-12T2
the jury reach a unanimous verdict as to which particular offense

it found defendant intended to commit upon his entry into B.M.'s

apartment. We disagree.

In State v. Robinson, 289 N.J. Super. 447 (App. Div.), certif.

denied, 146 N.J. 497 (1996), we rejected the identical argument

defendant makes here. To commit a burglary there must be an

unauthorized entry into the premises with a purpose to commit an

offense, N.J.S.A. 2C:18-2(a), which we explained "has been

interpreted broadly to mean 'any offense.'" Robinson, supra, 289

N.J. Super. at 453. We held that

where the circumstances surrounding the
unlawful entry do not give rise to any
ambiguity or uncertainty as to a defendant's
purpose in entering a structure without
privilege to do so, so long as those
circumstances lead inevitably and reasonably
to the conclusion that some unlawful act is
intended to be committed inside the structure,
then specific instructions delineating the
precise unlawful acts intended are
unnecessary.

[Id. at 458.]

court did not instruct the jury on the elements of the offense
until the second phase of the bifurcated trial. As such, the jury
was not instructed that it could convict defendant of burglary if
it found beyond a reasonable doubt that he entered B.M.'s apartment
with the intent to commit the offense of violating a court order
therein. We are therefore not confronted with the issue we
addressed in State v. Marquez, 277 N.J. Super. 162 (App. Div.
1994), certif. denied, 141 N.J. 99 (1995). Defendant does not
argue otherwise.

15 A-5810-12T2
 Here, the court tracked the Model Jury Charge on burglary

that is consistent with our holding in Robinson. See Model Jury

Charge (Criminal), "Burglary in the Second Degree," (2016). The

jury was instructed defendant could be found guilty of burglary

if he intended to commit any of the other offenses charged in the

indictment at the time of his unauthorized entry into B.M.'s

apartment. Moreover, the evidentiary record does not permit a

reasonable conclusion that defendant entered the apartment for any

lawful reason other than the commission of an offense.4

We also reject defendant's reliance on Gonzalez, supra, where

we found that a jury charge repeatedly employing the phrase

"and/or" rendered it impossible to determine if the jury

unanimously agreed the defendant was guilty as an accomplice or

co-conspirator in a robbery or an aggravated assault, or both. 444

N.J. Super. at 75-76. Our holding in Robinson establishes that to

prove a defendant committed a burglary in violation of N.J.S.A.

2C:18-2, it is only necessary that the jury unanimously agree a

defendant intended to commit an offense at the time of the

unauthorized entry into a structure, and that unanimity as to the

4
As previously noted, we reject defendant's argument that the
evidence showed he entered B.M.'s apartment to engage in consensual
sex with B.M., as this contention is unsupported and contradicted
by the trial record.

16 A-5810-12T2
specific offense is not required. Robinson, supra, 289 N.J. Super.

at 454-55. Thus, the unanimity issue which required the reversal

in Gonzalez is not extant here.

Because the evidence leads to an inevitable and reasonable

conclusion that defendant entered the apartment with the purpose

to commit an offense therein,5 it was unnecessary for the court to

require that the jury unanimously agree as to the specific offense

he intended to commit. Ibid.

III.

Defendant also argues the court made two erroneous

evidentiary rulings. First, defendant asserts the court erred in

admitting evidence of a court-issued restraining order barring

defendant from B.M.'s apartment. Second, he claims the court

improperly admitted two text messages sent by B.M. based on a

misapplication of the "state of mind" exception to the hearsay

rule, N.J.R.E. 803(c)(3), without conducting a N.J.R.E. 403(a)

balancing test or providing a limiting instruction.

5
We are not persuaded by defendant's assertion that there was no
evidence supporting a finding that he entered the apartment with
the purpose to commit the offenses of possession of a weapon for
an unlawful purpose, theft, and criminal mischief. There was
substantial evidence supporting defendant's conviction of those
offenses and permitting the reasonable inference that defendant
entered the apartment with the intent to commit those offenses,
as well as the sexual assault, simple assault, false imprisonment,
and other offenses for which he was convicted.

17 A-5810-12T2
 "A trial court's ruling on the admissibility of evidence is

reviewed on appeal for abuse of discretion." State v. Rose, 206

N.J. 141, 157 (2011). Under this standard, the trial court's

decision to admit evidence should not be overturned "unless it can

be shown that the trial court palpably abused its discretion, that

is, that its finding was so wide [of] the mark that a manifest

denial of justice resulted." State v. Lykes, 192 N.J. 519, 534

(2007) (alteration in original) (quoting Verdicchio v. Ricca, 179

N.J. 1, 34 (2004)). If the trial court does not determine the

admissibility of evidence under the correct legal standard,

however, its decision is not afforded any deference and we review

the issue de novo. State v. Reddish, 181 N.J. 553, 609 (2004).

The Restraining Order

Prior to the June 19, 2010 incident, B.M. obtained an FRO

which barred defendant from entering her apartment. Before trial,

defendant moved to preclude the State from introducing any evidence

concerning the FRO and offered to stipulate that defendant was not

permitted to enter the apartment. The State rejected defendant's

proposal and sought to introduce testimony from a court official

that there was an order barring defendant's presence at the

apartment. The court denied defendant's motion based upon our

holding in State v. Silva, 378 N.J. Super. 321 (App. Div. 2005),

finding that evidence of the order was admissible as relevant to

18 A-5810-12T2
whether defendant was authorized to enter B.M.'s apartment.

Defendant argues the court's ruling and the admission of the

evidence during trial constituted error.

In Silva, we reversed a trial court's ruling in a burglary

case that barred the State from introducing evidence concerning a

restraining order. Id. at 323. We found that the evidence was

relevant because it established the defendant was not licensed to

enter the premises, but directed that the order be presented "in

a sanitized fashion, stripped of any connection to any incident

of domestic violence." Id. at 326-27. We instructed that "to avoid

any possibility of mischievous speculation, the trial court should

instruct the jury, using clear and emphatic language, that they

are not to engage in any conjecture as to the legal or factual

basis for the restraints." Id. at 327; see also State v. Castagna,

400 N.J. Super. 164, 186 (App. Div. 2008) (admitting evidence of

a restraining order to prove motive subject to a limiting

instruction advising the jury that the evidence could not be

considered as proof the defendant committed any act of violence,

and could not speculate as to the order's legal or factual basis).

Here, the court properly limited the admission of the evidence

concerning the FRO and provided a detailed limiting instruction

to the jury. The court only permitted testimony of the order's

existence without reference to the circumstances that gave rise

19 A-5810-12T2
to its entry, and provided a limiting instruction in accordance

with the requirements of Silva. We discern no abuse of the court's

discretion in its admission of the testimony, and no error in the

court's careful and comprehensive jury instruction.

B.M.'s Text Messages

During a pretrial motion, defendant objected to the State's

introduction of text messages B.M. sent on July 19, 2010. Defendant

argued the text messages impermissibly suggested he engaged in

prior acts of harassment against B.M. The State argued the messages

were relevant because they refuted defendant's contention that on

June 19, 2010, B.M. had consensual sex with him. On appeal,

defendant argues that the court's admission of two of the text

messages sent by B.M. in the hours preceding the June 19, 2010

incident was erroneous and requires a reversal of his convictions.

The first text message was sent by B.M. to her neighbor,

J.W., stating:

Can you keep an eye on my house? [I will] be
gone all day and he [knows] it and he know[s]
[I will] be at the field all day.

The second text was sent by B.M. to a woman who lived across

the street, stating:

If [you are] home today can you please watch
my house really good[?] [I will] be at the
baseball field all day and my ex know[s] it.

20 A-5810-12T2
 The trial court initially reserved decision concerning the

admissibility of the texts, explaining generally that "data

extracted from the victim's phone may be admitted as proof of

defendant's motive, state of mind or intent." The court later

ruled the texts were admissible and evidence concerning these

texts was admitted at trial.6

Defendant argues the court erred in finding the text messages

admissible under N.J.R.E. 803(c)(3), the state of mind exception

to the hearsay rule. For the first time on appeal, defendant argues

the court further erred by not conducting a balancing test under

N.J.R.E. 403 to determine if the probative value of the evidence

was substantially outweighed by its prejudicial effect, and by

failing to provide the jury with a limiting instruction on the

proper and prohibited uses of the evidence.

Hearsay "is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted," N.J.R.E. 801, and "is not

admissible except as provided by [the Rules of Evidence] or by

other law," N.J.R.E. 802. One such exception to the hearsay rule

is the "state of mind" exception, N.J.R.E. 803(c)(3), which permits

6
The court ordered that the two text messages were admissible
subject to the redaction of statements in the messages that
defendant knew B.M. would not be home because he stole B.M.'s
daughter's baseball schedule. The State agreed.

21 A-5810-12T2
an out-of-court "statement made in good faith of the declarant's

then existing state of mind, emotion, sensation or physical

condition (such as intent, plan, motive, design, mental feeling,

pain, or bodily health)." For an out-of-court statement to qualify

for admission under N.J.R.E. 803(c)(3), "the declarant's state of

mind must be 'in issue.'" State v. McLaughlin, 205 N.J. 185, 206

(2011) (citation omitted).

Our Supreme Court recently addressed the state of mind

exception in the context of a victim's expression of fear, noting

the exception "does not broadly allow admission of a victim's

recounting of a defendant's threats." State v. Scharf, 225 N.J.

547, 569 (2016). A victim's hearsay statements of fear that reflect

on the defendant's state of mind are not admissible under the

state of mind exception. State v. Benedetto, 120 N.J. 250, 257

(1990). However, if a victim's statement that she feared the

accused is proffered, for example, to rebut a claim that the

victim's death was the result of an accident or suicide, such

declarations are admissible provided they are relevant. Scharf,

supra, 225 N.J. at 570.

The State proffered B.M.'s text messages to establish she did

not consent to defendant's entry into her apartment on June 19,

2010, and to counter defendant's assertion that what occurred in

the apartment was consensual. The trial court admitted over defense

22 A-5810-12T2
counsel's objection the text messages "as proof of defendant's

motive, state of mind or intent."

The court's determination that B.M.'s texts were admissible

under N.J.R.E. 803(c)(3) to establish defendant's state of mind

was clearly in error. See McLaughlin, supra, 205 N.J. at 206;

Benedetto, supra, 120 N.J. at 257. But we are satisfied that the

texts were otherwise admissible to demonstrate B.M.'s state of

mind on June 19, 2010. The text messages did not make any express

references to any prior bad acts on the part of defendant. Instead,

they showed B.M. did not want defendant at her apartment and that

B.M. was concerned defendant might appear there in her absence.

The messages were highly probative because they rebutted

defendant's claim that his entry into B.M.'s apartment and the

sexual intercourse between them on June 19, 2010, was consensual.

See Scharf, supra, 225 N.J. at 577 (finding murder victim's hearsay

statements about fearing defendant "were directly relevant and

were of assistance to the jury in its assessment of the likelihood"

that the victim would voluntarily accompany the defendant). We are

therefore satisfied that although the court erred in its reasoning

for admitting the text messages, the texts were properly admitted

to show B.M.'s state of mind in order to refute defendant's

contention she consented to his entry into her apartment. See Do-

Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining

23 A-5810-12T2
"appeals are taken from orders and judgments and not from . . .

reasons given for the ultimate conclusion").

Moreover, during the trial the State never argued the text

messages demonstrated defendant's state of mind. Instead, the

State argued only that the text messages showed B.M. was of such

a state of mind that she would not have consented to his entry

into her apartment. The text messages were "relevant to [an]

assessment[] of [B.M.'s] actions," and thus, "relevant in the

assessment of the truth" of defendant's assertion that he had

consensual interactions with B.M. on June 19, 2010. Scharf, supra,

225 N.J. at 570.

However, during B.M.'s testimony about the texts, she stated

twice that she sent them because she feared defendant would break

into her apartment. In one instance, she said she sent the texts

because she was fearful he would break into her apartment "again."

The testimony went beyond the language of the text messages

themselves, but there was no objection or request to strike the

testimony.

Defendant argues for the first time on appeal that B.M.'s

testimony concerning the texts was improper and that its admission

requires a reversal of his convictions. "Generally, arguments

about the prejudicial nature of individual statements should have

been made to the trial court." Id. at 577. Because defendant did

24 A-5810-12T2
not object to the testimony, we review the admission of the

testimony for plain error. R. 2:10-2; State v. Reeds, 197 N.J.

280, 298 (2009).

B.M.'s testimony concerning her fear that defendant would

break into her apartment, and would do so "again," was unnecessary,

exceeded the permissible use of the text messages to show

plaintiff's state of mind, and impermissibly suggested defendant

committed a prior bad act. See N.J.R.E. 404(b); Rose, supra, 206

N.J. at 159 (explaining that evidence of prior bad acts is

generally inadmissible unless it is "material to a non-propensity

purpose" and "its probative value is not outweighed by the risk

of prejudice"). Based on our review of the record, however, we are

not convinced B.M.'s testimony was clearly capable of producing

an unjust result.

We observe that defendant's failure to object may reflect

that he did not perceive B.M.'s testimony as prejudicial. State

v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.) (concluding a

trial judge's failure to provide a limiting instruction was not

plain error in part because defendant's "failure to object

signifie[d] that the error belatedly claimed was actually of no

moment"), certif. denied, 170 N.J. 206 (2001), cert. denied, 535

U.S. 1012, 122 S. Ct. 194, 152 L. Ed. 2d 510 (2002).

25 A-5810-12T2
 Further, evidence of defendant's guilt, independent of B.M.'s

testimony as to why she sent the text messages, was overwhelming.

The condition of B.M.'s apartment was consistent with the violent

struggle B.M. described. There was blood found in her bedroom and

kitchen, a hole in her bedroom wall, and knife cuts through her

furniture. J.W. testified that B.M. appeared distraught at her

doorway at 3:30 a.m., naked below the waist, and crying that

defendant had "raped" her. The treating medical personnel observed

that B.M. had physical injuries such as bruising on her face and

defendant's DNA was found inside B.M.'s vagina. In addition,

defendant's counsel conceded at trial that he entered the

apartment, cut the furniture with a knife, and "slapped" B.M.

"around."

The State did not rely on B.M.'s statements about her fear

of defendant breaking into her apartment to suggest defendant was

a bad person or previously committed wrongful acts against her.

The prosecutor did not reference the testimony during her

summation. Instead, the prosecutor argued only that the text

messages demonstrated B.M. did not want defendant to be in her

apartment. The prosecutor argued to the jury that "[B.M.] didn't

want [defendant] there because she texted [J.W.] and another friend

that very day . . . . Why would she do that? She texted . . . to

say, I don't want him there."

26 A-5810-12T2
 Based on the circumstances presented and defendant's failure

to object to B.M.'s testimony, we are not convinced B.M's momentary

and singular reference in the course of a lengthy trial to her

fear that defendant might break into her apartment "again" was

capable of producing an unjust result. We have carefully considered

the evidentiary record and are satisfied there was "overwhelming

proof" of defendant's guilt "independent of the other-crimes

evidence" and that admission of B.M.'s testimony was not clearly

capable of producing an unjust result. State v. Gillispie, 208

N.J. 59, 93 (2011).

IV.

Defendant next argues he was denied a fair trial because the

prosecutor made improper comments during summation. Defendant

contends the prosecutor misinformed the jury that, based on Brown's

testimony, it could apply a subjective standard to B.M.'s

perception of defendant's conduct in analyzing the counts on

criminal restraint and sexual assault. Defendant also argues the

prosecutor denigrated the defense of consent by suggesting it was

concocted to overcome the State's DNA evidence showing defendant

and B.M. had sexual intercourse.

"When an appellate court reviews a claim of prosecutorial

misconduct with respect to remarks in summation, the issue

presented is one of law," and the court's "review is plenary and

27 A-5810-12T2
de novo." State v. Smith, 212 N.J. 365, 387 (2012). "[W]hile a

prosecutor's summation is not without bounds, '[s]o long as [it]

stays within the evidence and the legitimate inferences therefrom

the Prosecutor is entitled to wide latitude in [] summation.'"

State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry,

52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct.

673, 21 L. Ed. 2d 593 (1969)).

In determining whether a prosecutor's comments during

summation constitute prosecutorial misconduct, we "must consider

several factors, including whether 'timely and proper objections'

were raised; whether the offending remarks 'were withdrawn

promptly'; and whether the trial court struck the remarks and

provided appropriate instructions to the jury." Smith, supra, 212

N.J. at 403 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). If

prosecutorial misconduct occurred and the comments "were

sufficiently egregious, a new trial is appropriate, even in the

face of overwhelming evidence that a defendant may, in fact, be

guilty." Id. at 404; see also State v. Wakefield, 190 N.J. 397,

446 (2007) ("[T]he issue for resolution is two-fold: whether the

prosecutor committed misconduct, and, if so, 'whether the

prosecutor's conduct constitutes grounds for a new trial.'"

(quoting State v. Smith, 167 N.J. 158, 181 (2001))).

28 A-5810-12T2
 A prosecutor "should not make inaccurate legal or factual

assertions during a trial." State v. Bradshaw, 195 N.J. 493, 510

(2008) (quoting Frost, supra, 158 N.J. at 85). "A prosecutor may

comment on the facts shown by or reasonably to be inferred from

the evidence." R.B., supra, 183 N.J. at 330 (quoting State v.

Carter, 91 N.J. 86, 125 (1982)). "So long as the prosecutor's

comments are based on the evidence in the case and the reasonable

inferences from that evidence, the prosecutor's comments 'will

afford no ground for reversal.'" Bradshaw, supra, 195 N.J. at 510

(quoting State v. Johnson, 31 N.J. 489, 510 (1960)).

Defendant argues that the prosecutor inaccurately stated in

summation that Brown testified threats are to be interpreted based

upon a victim's subjective point of view. Defendant claims the

prosecutor's reference to Brown's testimony misstated the elements

of sexual assault which, according to defendant, require the jury

to determine whether the defendant reasonably believed the victim

freely gave permission to the act of penetration.

We find no merit to defendant's claim. The prosecutor

accurately represented Brown's testimony, which was not offered

as a statement of any legal standard. The prosecutor did not

suggest to the jury that Brown's testimony constituted the

appropriate legal standard and, in fact, expressly advised the

jury that Brown's testimony did not establish a legal standard.

29 A-5810-12T2
In addition, the court accurately instructed the jury that it

would define the legal standards to be applied during

deliberations.

Defendant also claims the prosecutor improperly referenced

Brown's testimony that "the mere presence of a person can be a

threat if you have been on the receiving end of violent action

from that person." Defendant argues that statement improperly

suggested B.M. was previously victimized by defendant.

We are not persuaded by defendant's contention for two

reasons. First, the prosecutor's statement precisely described

Brown's trial testimony that was provided without objection.

Secondly, the prosecutor's reference to Brown's testimony is

unencumbered by any suggestion that defendant previously engaged

in violent conduct. In contrast, the prosecutor relied on Brown's

testimony to argue that the violence defendant employed on June

19, 2010, instilled fear in B.M. and constituted an exercise of

control by defendant. The prosecutor repeated Brown's testimony,

stating that if a victim has witnessed "violent action, just the

presence [of the perpetrator] can be a threat and can be

overpowering." In the next sentence, the prosecutor spoke only

about defendant's violent conduct toward B.M. during the incident,

and argued it constituted a threat against her. Contrary to

defendant's contention, we find nothing in the prosecutor's

30 A-5810-12T2
comments suggesting a prior violent relationship between B.M. and

defendant.

Defendant also argues the prosecutor inappropriately

suggested he "concocted" his defense that he and B.M. had

consensual. Defendant challenges the prosecutor's statement:

Remember what [] Brown said? DNA has kind of
changed things and often now the defense has
to be that the act was consensual because the
DNA is there.

We do not find the prosecutor's statement to be improper. It

accurately summarized Brown's trial testimony, which was provided

without objection, and did not impermissibly denigrate the defense

or "imply that defense counsel and defenses witnesses 'concocted'"

the defense of consent. State v. Lazo, 209 N.J. 9, 29 (2012). The

prosecutor argued that defendant first attempted to remove

evidence of his DNA by requiring that B.M. take a shower and,

after that proved unsuccessful, claimed B.M. consented to sexual

intercourse. The prosecutor's comments found support in the

evidence and addressed the credibility of defendant's consent

defense. We are satisfied the comments were within the bounds of

the "considerable leeway" afforded to counsel during closing

arguments. Lazo, supra, 209 N.J. at 29; Smith, supra, 167 N.J. at

177.

31 A-5810-12T2
 V.

Defendant claims the court committed three errors in its

imposition of his sentence. He contends the court failed to merge

his conviction for second-degree sexual assault (count three) with

his conviction for first-degree aggravated sexual assault (count

two), improperly imposed a $3000 SCVTF penalty, and did not award

jail credits to which he was entitled. We consider each of the

arguments in turn.

Merger

Defendant argues his conviction for second-degree sexual

assault (count three) should have been merged with his conviction

for first-degree aggravated sexual assault (count two). The State

contends merger was not required because the jury convicted

defendant of two different acts of sexual assault and therefore

separate sentences were appropriate. The State relies on State v.

Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied,

104 N.J. 434 (1986), where we held that the defendant's sexual

assault convictions did not merge because they were based on

separate acts of sexual assault.

"The doctrine of merger is based on the concept that 'an

accused [who] committed only one offense . . . cannot be punished

as if for two.'" State v. Tate, 216 N.J. 300, 302 (2013) (quoting

State v. Davis, 68 N.J. 69, 77 (1975)). This principle has been

32 A-5810-12T2
codified under N.J.S.A. 2C:1-8(a), which provides that when the

same conduct can be used to establish a violation of multiple

criminal offenses, a defendant can only be convicted of more than

one offense in certain circumstances. There is no "single test"

that has been universally accepted to determine when convictions

merge, and "our courts have eschewed technisms and inflexibility

in favor of the paramount considerations of 'fairness and

fulfillment of reasonable expectations in the light of the

constitutional and common law goals.'" Fraction, supra, 206 N.J.

Super. at 538 (quoting State v. Currie, 41 N.J. 531, 539 (1964)).

The record required the merger of defendant's second-degree

sexual assault conviction with his conviction for first-degree

aggravated sexual assault. Unlike Fraction, the indictment here did

not charge separate acts of sexual assault. See Fraction, supra,

206 N.J. Super. at 539. The indictment charged a single criminal

episode during which aggravated sexual assault occurred, and the

jury was not asked to make determinations as to whether defendant

committed a sexual assault in the bedroom separate from its

determination as to whether defendant committed sexual assault in

the kitchen.

In contrast, the defendant in Fraction was charged with, and

convicted of, separate and distinct acts of sexual assault. Ibid.

The court found merger was not required because the "convictions

33 A-5810-12T2
[were] not for the 'same conduct.'" Id. at 538 (quoting N.J.S.A.

2C:1-8(a)(1)). Here, they were. Defendant's second-degree sexual

assault conviction, N.J.S.A. 2C:14-2(c)(1)), must merge with his

conviction for first-degree aggravated sexual assault, N.J.S.A.

2C:12-2(a)(3), because they are based on identical conduct.7 See

State v. T.E., 342 N.J. Super. 14, 22 (App. Div.), certif. denied,

170 N.J. 86 (2001); State v. McCauley, 157 N.J. Super. 349, 354-55

(App. Div.) (finding two charges stemming from one ongoing criminal

episode permit only one conviction and sentence), certif. denied,

77 N.J. 500 (1978).

We reject defendant's contention that the court's general

unanimity instruction was inadequate because he was entitled to a

specific unanimity instruction requiring the jury to determine the

particular sexual assault he committed. Defendant did not request

a unanimity instruction on any of the sexual assault charges. In

the absence of such a request, "the failure so to charge does not

necessarily constitute reversible error." State v. Parker, 124 N.J.

628, 637 (1991), cert. denied, Parker v. New Jersey, 503 U.S. 939,

7
Because we conclude the court erred by failing to merge
defendant's conviction on count three with count two, it is
unnecessary to address defendant's argument that the court erred
by imposing consecutive sentences on those offenses. Defendant
does not argue the court erred in imposing a consecutive sentence
on his conviction for fourth-degree violation of a court order
under count eight.

34 A-5810-12T2
112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). To determine if a

specific unanimity charge is required, "[t]he core question is, in

light of the allegations made and the statute charged, whether the

instructions as a whole [posed] a genuine risk that the jury [would

be] confused." State v. Gandhi, 201 N.J. 161, 193 (2010)

(alterations in original) (quoting Parker, supra, 124 N.J. at 638).

On review, we "examine two factors: whether the acts alleged are

conceptually similar or are 'contradictory or only marginally

related to each other,' and whether there is a 'tangible indication

of jury confusion.'" Ibid. (quoting Parker, supra, 124 N.J. at

639).

Defendant does not allege, and the record does not reveal, any

indication of jury confusion concerning the acts of sexual assault

for which it found defendant guilty. Moreover, the State presented

evidence of a "continuing course of conduct" consisting of

conceptually identical acts that occurred in the bedroom and

kitchen. This was not a case where the circumstances presented "a

reasonable possibility that a juror will find one theory proven and

the other not proven but that all of the jurors will not agree on

the same theory." Parker, supra, 124 N.J. at 635 (quoting People

v. Melendez, 274 Cal. Rptr. 599, 608 (Ct. App. 1990)). The court

therefore did not err by failing to sua sponte provide a specific

unanimity instruction on the sexual assault counts.

35 A-5810-12T2
 Sexual Crime Victim Treatment Fund Penalty

We agree with defendant's contention that the court erred by

imposing the maximum SCVTF penalty under N.J.S.A. 2C:14-10 without

considering the nature of the offense and defendant's ability to

pay,8 and by failing to make any findings supporting the imposition

of the penalties imposed. See State v. Bolvito, 217 N.J. 221, 233-

35 (2014); R. 1:7-4. We recognize that Bolvito was decided

subsequent to defendant's sentencing, but that is irrelevant

because its interpretation of the statute applies with equal force

here; N.J.S.A. 2C:14-10 permits the imposition of a SCVTF penalty

"up to" certain amounts, depending on the degree of the sexual

offense for which the defendant was committed. The court here

erred by imposing the maximum penalty without considering any

factors relevant to a proper determination of the amount and

without providing any reasons for its imposition of the maximum

penalty.9

8
The presentence investigation report showed that defendant's only
asset was a civil judgment in the amount of $25,000 which he
obtained in 2007 as the result of being the victim of a stabbing.
His debts, which included an outstanding child support obligation
of almost $49,000, exceeded $69,000.
9
Based on our decision that count three must be merged into count
two, on remand the court will be required to consider the
appropriate SCVTF penalty to be imposed on count two only.

36 A-5810-12T2
 Jail Credits

The record does not support defendant's contention that the

court erred in denying his request for additional jail credits.

Defendant was arrested on June 20, 2010, and thereafter held in

custody until he was sentenced. During that time, defendant served

sentences on two other matters from July 20, 2010 to February 25,

2011, for a total of 220 days. Defendant asserts he was entitled

to 220 days of jail credit for the time following his arrest on the

charges here and during which he served his sentences on the other

matters.

The award of jail credits presents an issue of law that we

review de novo. State v. Hernandez, 208 N.J. 24, 48-49 (2011).

Rule 3:21-8 provides that a "defendant shall receive credit on the

term of a custodial sentence for any time served in custody in

jail or in a state hospital between arrest and the imposition of

sentence." A defendant is entitled to jail credits for time spent

in presentence custody on multiple charges, but not for time

accrued after the imposition of a custodial sentence. Hernandez,

supra, 208 N.J. at 44-45. "[O]nce the first sentence is imposed,

a defendant awaiting imposition of another sentence accrues no

37 A-5810-12T2
more jail credit." Id. at 50.10 We are therefore satisfied the

court correctly rejected defendant's request for 220 days of jail

credit for the time he spent serving sentences on his other

matters.

Defendant's remaining arguments are without sufficient merit

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

We affirm defendant's convictions, and remand for amendment

of the judgment of conviction for merger of count three with count

two11 and for reconsideration of the amount of the SCVTF penalty

to be imposed on count two. We do not retain jurisdiction.

10
Defendant does not contend he is entitled to gap-time credit
under N.J.S.A. 2C:44-5(b)(2). See generally State v. Joe, 228 N.J.
125 (2017).
11
We find no basis to direct that the court reconsider its decision
to deny the State's motion for an extended term. The State did
not appeal the court's denial of its extended term motion.

38 A-5810-12T2