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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1137-15T1
A-1148-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.C.,
Defendant-Appellant.
___________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.W.,
Defendant-Appellant.
___________________________
Submitted May 7, 2018 – Decided August 3, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 11-
08-0888.
Joseph E. Krakora, Public Defender, attorney
for appellant M.C. (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Joseph E. Krakora, Public Defender, attorney
for appellant E.W. (Richard Sparaco,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah E. Elsasser, Deputy
Attorney General, of counsel and on the
briefs).
PER CURIAM
These back-to-back appeals are consolidated for this opinion.
In A-1148-15, defendant E.W. appeals from his convictions and
sentence for kidnapping, sexual assault and two counts of
aggravated sexual assault. In A-1137-15, defendant M.C. appeals
from his convictions for sexual assault and two counts of
aggravated sexual assault. Based on our review of the record and
defendants' arguments under the applicable legal principles, we
affirm their convictions, vacate the sentences on their
convictions for first-degree aggravated sexual assault under
N.J.S.A. 2C:14-2(a)(7) and remand for resentencing on those
charges.
I.
The charges against defendants arose out of an alleged
kidnapping and sexual assault of thirty-year-old S.S. on the
evening of January 31, 2011, and early morning hours of February
1, 2011. E.W. was charged in an indictment with first-degree
2 A-1137-15T1
kidnapping, N.J.S.A. 2C:13-1(b)(1), first-degree aggravated sexual
assault while aided or abetted by another and by using physical
force or coercion, N.J.S.A. 2C:14-2(a)(5), first-degree sexual
assault upon a victim E.W. knew, or should have known, was mentally
defective, N.J.S.A. 2C:14-2(a)(7), second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1), and third-degree witness tampering,
N.J.S.A. 2C:28-5(a). The court dismissed the witness tampering
charge prior to trial.
M.C. was charged in the indictment with first-degree
aggravated sexual assault while aided or abetted by another and
by using physical force or coercion, N.J.S.A. 2C:14-2(a)(5),
first-degree sexual assault upon a victim M.C. knew, or should
have known, was mentally defective, N.J.S.A. 2C:14-2(a)(7), and
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).
At defendants' joint trial, the evidence showed that in
January 2011, S.S., who is in the moderate to severe range of
"mental retardation,"1 resided with her adoptive mother, B.S., and
1
We recognize the term "mental retardation" is disfavored, and
the term "intellectual disability" is currently accepted in the
medical community "to describe the identical phenomenon." Hall
v. Florida, 582 U.S. ___, ___, 134 S. Ct. 1986, 1990 (2014); see
also American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 33 (5th ed. 2014) (explaining
"intellectual disability is the term in common use by medical,
educational, and other professions and by the lay public and
advocacy groups" to refer to the disability previously denominated
3 A-1137-15T1
another female family member, L.L. B.S. adopted S.S. when S.S.
was seven months old and, at age five, S.S. was diagnosed as
severely handicapped. S.S. attended a school for special needs
children until she was twenty-one.
S.S. cannot read, write, cook or use public transportation
on her own, and is not capable of holding a job, does not understand
the value of money, and cannot function independently. As a result
of her handicap, S.S. considered anyone who was nice to her to be
her friend, and believed anything that was told to her. S.S. gave
birth to children in 2009 and 2010, both of whom were removed from
her care. Prior to January 31, 2011, L.L. assisted S.S. with
daily hygiene, bathing, and looked after her while B.S. was at
work. After the incident alleged in the indictment, S.S. moved
to a group home because she is unable to care for herself.
Shortly before January 31, 2011, S.S. joined a church where
she met E.W., who was also a member. B.S. and L.L. did not join
or attend this church with her. On January 31, 2011, L.L.
overheard telephone calls between S.S. and a man who was identified
as E.W. According to L.L., E.W. pressured S.S. to attend Bible
as "mental retardation"). We use the term "mental retardation"
and others, such as mental disability and mental defect, because
they are the terms employed by the court, counsel and witnesses
during trial.
4 A-1137-15T1
study at the church during the phone calls. S.S. agreed to go to
the Bible study, and provided E.W. with her address.
At approximately 10:00 p.m., E.W. arrived at S.S.'s home in
a van driven by another person, and introduced himself to L.L. and
B.S. L.L. testified that E.W. looked like he had had "one or two
drinks," but did not have difficulty responding to her or B.S.'s
questions. E.W. said he was taking S.S. to Bible study classes,
and promised to bring her home afterward. B.S. and L.L. acquiesced
because church members often transported S.S. to services and
classes, and they expected S.S. to return that night. In his
statement to police, E.W. acknowledged drinking that day, and
picking up S.S. at her home, but claimed he and S.S. planned only
to "hang out."
Although there was conflicting evidence concerning the timing
and sequence of the events immediately following E.W. and S.S.'s
departure from her home, it is undisputed E.W. and S.S. got into
a van that had two other men in it. Approximately two hours after
the van departed from S.S.'s home, the driver of the van dropped
off E.W. and S.S. at E.W.'s home, and left with the other
passenger.
When E.W. and S.S. arrived at the home, they were met by
M.C., E.W.'s brother and an individual identified as V.B. The
five individuals spent time on the porch drinking and then went
5 A-1137-15T1
inside. At approximately 2:30 a.m., E.W., M.C. and V.B. went into
the basement with S.S.
S.S. testified that, once in the basement, E.W. took her
clothes off, "made [her] go down on him," "stuck his thing in
[her]," and "hit [her] from [her] back," meaning E.W. made her
perform oral sex on him, and vaginally and anally penetrated her
with his penis. She also testified that an individual later
identified as M.C. did the same thing to her. S.S. testified she
told the men to stop, but they did not.2 S.S. explained that when
the assaults ended, she slept on a chair in E.W.'s room and, when
she awoke the next morning, E.W.'s sister arranged for a cab to
take S.S. home.
When S.S. arrived home, L.L. thought S.S. seemed unusually
quiet, was very dirty and smelled badly. S.S. initially refused
to answer L.L.'s questions, but then told L.L. that E.W. put his
penis in her mouth, another man put his penis in her anus and her
anus was very sore. S.S. told L.L. that she told the men "no,"
but they forced her to engage in the sexual activity.
2
S.S. also testified she provided a statement to the police
stating that she went "down on" E.W. while his friend penetrated
her anally from behind, and that E.W. and his friend switched
places and the same things occurred.
6 A-1137-15T1
L.L. called E.W., who acknowledged putting his penis in S.S.'s
mouth, denied having sexual intercourse with S.S. and asked L.L.
not to call the police. L.L., however, then notified the police.
S.S. subsequently took the police to E.W.'s house and provided
a description of E.W., but was unable to identify M.C. Pursuant
to police instructions, L.L. brought S.S. to Muhlenberg Hospital
for an evaluation. Thelma Kaiser, a trained Sexual Assault Nurse
Examiner (SANE), conducted an examination and evaluation in the
emergency room on February 1, 2011. She took S.S.'s medical
history, observed S.S. to be "very sleepy," and asked S.S. about
the incident.
Kaiser examined S.S. and observed injuries to her vaginal and
anal areas, including a one-quarter inch anal tear. Kaiser found
no other visible injuries such as bites or burns. Kaiser offered
S.S. antibiotics and emergency contraceptive medication.
S.S., B.S., and L.L. each gave formal statements to police,
but they were not introduced in evidence at trial. As a result
of her mental disability, S.S.'s statement was taken at the Child
Advocacy Center.
Union County Prosecutor's Office detective Edward Rivera
interviewed E.W. on February 3, 2011. The video recording of
E.W.'s voluntary statement was admitted in evidence and played for
the jury. E.W. said he knew S.S. from church, and she had a crush
7 A-1137-15T1
on him and asked to perform oral sex on him and have sexual
intercourse with him. He admitted picking up S.S. at her home,
and taking her to his family's home to "hang out." E.W. explained
that S.S. wanted to kiss him, hug him and "love" him, but he was
not attracted to her.
E.W. said S.S. voluntarily performed oral sex on him, but he
denied engaging in sexual intercourse with or forcing her to do
anything. He also said he "didn't notice she had anything wrong
mentally" and claimed he just wanted to "be her friend."
On February 8, 2011, Rivera and Union County Prosecutor's
Office detective Brian O'Malley interviewed M.C. A transcript of
the interview was read to the jury at trial. M.C. admitted being
on the porch of E.W.'s family's home with V.B. and E.W.'s brother
late in the evening on January 31, 2011, when E.W. arrived with a
woman. He denied entering the house that evening and engaging in
any sexual activity with S.S., stating:
Nah. I didn't mess with her. Nothing. I
didn't even do nothing with that girl or
nothing. You know what I'm saying? That's
crazy though they would put my name in it, you
know what I'm saying, and say I had something
to do with it. I ain't had nothing to do with
that chick. If I did have something to do
with it, I would say I did though, but I didn't
though. You know what I'm saying?
Monica Ghannam, a forensic scientist employed in the Union
County Prosecutor's Office's forensic laboratory, analyzed
8 A-1137-15T1
vaginal, cervical, and anal swabs taken from S.S. and her underwear
during Kaiser's examination, and DNA samples from S.S., E.W., M.C.
and V.B. Ghannam testified S.S.'s cervical specimens tested
negative for acid phosphatase and sperm, but the anal swab tested
positive for acid phosphatase and sperm. Samples taken from the
back panel and interior crotch area of S.S.'s underwear, also
tested positive for acid phosphatase and sperm.
Ghannam, who was qualified as an expert witness in the field
of serology and DNA analysis, opined that "the mixture of those
two individuals [E.W. and M.C.] accounts for all the DNA types
that are in the sperm fraction from the anal swabs." She further
testified the semen collected from the anal specimen matched both
E.W. and M.C., and the semen from S.S.'s underwear matched M.C.
Ghannam testified V.B.'s DNA was not found at a detectable level
on any of the samples taken from S.S.
Dr. Louis Schlesinger was qualified as an expert in forensic
psychology. He evaluated S.S. and testified she "can do basic,
minimal things" and was "very pleasant and very friendly" but had
"very significant brain damage." Schlesinger explained that S.S.
had "no functional academic skills," could not drive, read, or
write and did not have a bank account, but could operate a cell
phone.
9 A-1137-15T1
Schlesinger conducted a number of psychological tests on S.S.
that revealed she is "very, very childlike and regressive," and
typical of someone who is "mentally retarded." Schlesinger
determined S.S. had "very, very low" cognitive functioning and an
I.Q. of approximately forty-five, placing her in the moderate to
severe range of mental retardation. He found S.S. had "impairment
in almost all areas of adaptive functioning."
During the evaluation, S.S. told Schlesinger that
[o]ne of the boys made me go down on him and
the other made me suck him off. One put it
in my butt and I still got the bruise on the
back of my butt. I told him I wanted to go
home but he wouldn't let me go home. I kept
telling him no. I didn't want to do it. He
kept forcing me. I kept saying no. Then I
went home after that.
Schlesinger noted a number of inconsistencies in S.S.'s
version of the incident, but nonetheless found her to be "very
credible" and suggested that inconsistencies were not surprising
given her low intelligence. He opined that S.S. understands the
basic mechanics of sex and "knows people don't have the right to
force her to have sex" but concluded she had only a minimal ability
to resist engaging in sex and was incapable of exercising her
right to refuse to engage in sexual activity on the night of the
incident. He testified that she "cannot fend off anything" and
was "unable to exercise any of her rights not to consent."
10 A-1137-15T1
E.W. called one witness, V.B. V.B. testified he was at his
home with M.C., E.W.'s brother and E.W.'s brother's friend at 9:00
or 10:00 p.m. on January 31, 2011. They left his home, walked to
a local bank and, as they returned, he saw E.W. in a parked van
receiving oral sex from a woman. He testified the woman appeared
willing, and there was no evidence of force.
Later, he was across the street from E.W.'s house and saw the
van drop off E.W. and S.S. V.B. testified that he, M.C. and E.W.'s
brother walked across the street and joined E.W. and S.S. on the
porch of E.W.'s house. The group walked into the hallway of the
home, and he, E.W., M.C. and S.S. decided to go into the basement
to get warm. V.B. testified S.S. was not reluctant to enter the
basement and "wanted to be there."
According to V.B., once in the basement, E.W. and M.C.
simultaneously engaged in unprotected sexual activity with S.S.,
who did not cry, scream, or request that they stop. V.B. testified
S.S. said "I like that Daddy. It's good. Keep it going." V.B.
explained that during the approximately one hour and fifteen
minutes they were in the basement, E.W. and M.C.'s sexual activity
with S.S. continued, and she did not complain. V.B. denied
engaging in sexual activity with S.S., and explained that E.W.
invited S.S. upstairs to go to bed, and he and M.C. left E.W.'s
home.
11 A-1137-15T1
The jury convicted E.W. and M.C. on each of the charges
against them. E.W. made a motion for acquittal or, in the
alternative, for a new trial, which the court denied.
The court merged E.W.'s conviction for second-degree sexual
assault with his conviction for first-degree kidnapping and
sentenced defendant to twenty years subject to the requirements
of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court
imposed concurrent eighteen-year terms, subject to NERA's
requirements, on E.W.'s two first-degree aggravated sexual assault
convictions. E.W. appealed.
The court merged M.C.'s conviction for second-degree sexual
assault with his conviction for first-degree aggravated sexual
assault under N.J.S.A. 2C:14-2(a)(5), and imposed an eighteen-year
custodial term subject to NERA. The court imposed a concurrent
eighteen-year term subject to NERA on M.C.'s conviction for first-
degree aggravated sexual assault under N.J.S.A. 2C:14-2(a)(7).
M.C. appealed.
On appeal, E.W. presents the following arguments for our
consideration.
POINT I
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL
DUE TO MULTIPLE HEARSAY STATEMENTS BY THE SANE
NURSE REGARDING WHAT THE ALLEGED VICTIM TOLD
HER DURING HER EVALUATION.
12 A-1137-15T1
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL
DUE TO [THE] COURT'S DENIAL OF HIS MOTION FOR
SEVERANCE.
POINT III
THE COURT'S SENTENCE OF THE TWENTY YEARS WAS
EXCESSIVE.
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTIONS FOR JUDGMENTS OF ACQUITTAL N.O.V. OR
NEW TRIAL[.]
M.C. separately offers the following arguments in support of
his appeal:
POINT I
[M.C.] WAS GRAVELY PREJUDICED BY THE TRIAL
JUDGE'S ERROR IN DENYING HIS MOTION TO SEVER
CODEFENDANT [E.W.]'S KIDNAPPING CHARGE.
POINT II
THE TRIAL JUDGE ERRED IN DENYING [M.C.]'S
MOTION FOR A JUDGEMENT [SIC] OF ACQUITTAL ON
THE SEXUAL ASSAULT – MENTAL DEFECT CHARGE, AND
INSTEAD PROVIDED AN INSTRUCTION THAT LOWERED
THE STATE'S BURDEN BY DIRECTING THE JURY TO
CONSIDER THE FACTS SURROUNDING THE INCIDENT
IN DETERMINING WHETHER [S.S.] HAD THE
REQUISITE MENTAL DEFECT.
POINT III
THE TRIAL JUDGE ERRED IN ALLOWING THE
PROSECUTOR TO ARGUE IN SUMMATION, WITHOUT THE
SUPPORT OF EXPERT-OPINION TESTIMONY, THAT THE
COMPLAIN[]ANT'S QUARTER-INCH ANAL TEAR WAS
13 A-1137-15T1
EVIDENCE INDICATING THAT THE INTERCOURSE WAS
NONCONSENSUAL.
POINT IV
THE STATE EXPERT'S TESTIMONY INVADED THE
DOMAIN OF THE JURY BY IMPROPERLY OPINING ON
THE ULTIMATE ISSUE AND THE CREDIBILITY OF
OTHER WITNESSES.
POINT V
THE TRIAL JUDGE ERRED IN APPARENTLY USING AN
ELEMENT OF ONE OF THE OFFENSES TO FIND TWO
AGGRAVATING FACTORS, AND IN FAILING TO EXPLAIN
THE APPLICATION OF AGGRAVATING FACTORS AND
REJECTION OF MITIGATING FACTORS, RESULTING IN
A MANIFESTLY EXCESSIVE SENTENCE.
II.
We first address E.W.'s arguments in A-1148-15 concerning
alleged trial errors. He contends the court erred by allowing
Kaiser to testify concerning statements made by S.S. during her
examination at the hospital. He also contends the court erred by
denying his motions for severance and a new trial. For the
following reasons, we find no merit to E.W.'s arguments.
A.
Kaiser testified about statements S.S. made during her
February 1, 2011 examination at the hospital. Kaiser detailed
what was reflected in her report during the following exchange:
Q. And in his case did [S.S.] give you a
description of the incident?
A. Yes.
14 A-1137-15T1
Q: And can you tell us what she said?
A: It's in quotes. He brought me to his
house. Right away I went down on him and he
stuck his thing in my butt and also vagina. I
was screaming and the upstairs neighbor came
down and gave me cab money to go home. My
sister called police. She went down on – she
went down and E and second guy his butt and
vaginal and kept saying – I kept saying no,
stop, but he didn't.
Q. Does that say[,] "put in her butt," I think
the third or fourth line from the bottom?
A. Yeah, put in her butt.
E.W. did not object to the testimony, and argues for the
first time on appeal the court committed plain error by permitting
the State to elicit inadmissible hearsay testimony. He contends
Kaiser's testimony was not admissible as fresh-complaint evidence,
see State v. R.K., 220 N.J. 444, 455 (2015) (explaining the fresh-
complaint doctrine), or under N.J.R.E. 803(c)(4), which allows
admission of statements made in good faith for purposes of medical
diagnosis or treatment, because Kaiser's examination was conducted
for "evidence-gathering purposes."
It is unnecessary to consider whether S.S.'s statements to
Kaiser were admissible as fresh-complaint evidence because the
State does not contend they were. The State argues Kaiser's
testimony concerning S.S.'s statements was admissible under
N.J.R.E. 803(c)(4), which provides:
15 A-1137-15T1
Statements made in good faith for purposes of
medical diagnosis or treatment which describe
medical history, or past or present symptoms,
pain, or sensations, or the inception or
general character of the cause or external
source thereof to the extent that the
statements are reasonably pertinent to
diagnosis or treatment.
"It has long been the rule in New Jersey that the declarations
of a patient as to his [or her] condition, symptoms and feelings
made to his [or her] physician for the purpose of diagnosis and
treatment are admissible in evidence as an exception to the hearsay
rule." Cestero v. Ferrara, 57 N.J. 497, 501 (1971). The
"rationale" for the rule "is that such statements possess inherent
reliability because 'the patient believes that the effectiveness
of the treatment [she] receives may depend largely upon the
accuracy of the information [she] provides the'" medical care
provider. R.S. v. Knighton, 125 N.J. 79, 87 (1991) (citation
omitted).
To be admissible under N.J.R.E. 803(c)(4), a patient's
statements must be "made in good faith for purposes of medical
diagnosis or treatment." State v. Pillar, 359 N.J. Super. 249,
289 (App. Div. 2003) (quoting N.J.R.E. 803(c)(4)). The rule is
based upon a presumed "treatment motive," and thus a statement by
a declarant who "is unaware that his or her statements will enable
a physician to make a diagnosis and administer treatment" lacks
16 A-1137-15T1
the requisite degree of trustworthiness to qualify under this
exception. R.S., 125 N.J. at 87-88. For that reason, hearsay
obtained during evidence gathering and medical consultations
conducted purely in preparation for litigation remains
inadmissible. State in the Interest of C.A., 201 N.J. Super. 28,
33 (App. Div. 1985); see also Pillar, 359 N.J. Super. at 289
(noting "[t]here is no doubt that if the examination . . . was
conducted for evidence gathering purposes, the hearsay statements
contained in the medical history would be inadmissible as not
falling within" N.J.R.E. 803(c)(4)).
To be admissible, the statements must "describe medical
history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source
thereof to the extent that the statements are reasonably pertinent
to diagnosis or treatment." Pillar, 359 N.J. Super. at 289
(quoting N.J.R.E. 803(c)(4)). Thus, "ordinarily statements made
as to the cause of the symptoms or conditions" are not admissible,
Cestero, 57 N.J. at 501, because they are not relevant to the
patient's treatment, State v. McBride, 213 N.J. Super. 255, 273
(App. Div. 1986).
Kaiser testified the purpose of her examination was twofold:
to take care of S.S. "mentally [and] physically," and to collect
evidence. Kaiser asked S.S. to describe what occurred in order
17 A-1137-15T1
to determine where to look for injuries, and then conducted a
physical examination during which she assessed S.S.'s injuries,
but also gathered evidence for law enforcement. She also provided
S.S. with care following the examination, offering S.S. medication
for any sexually transmitted diseases and a pill to prevent
pregnancy. The evidence also showed S.S. went to the hospital
solely because the police instructed her to do so.
It is unclear from the record whether S.S. made the statements
to obtain medical treatment, provide evidence or both. It is
therefore not possible to determine whether her statements were
made with a "treatment motive" and had the requisite
trustworthiness to allow their admission under N.J.R.E. 803(c)(4).
R.S., 125 N.J. at 87. In any event, her statements she was brought
to "his house," was "screaming and the upstairs neighbor came down
and gave [her] cab money to go home," her "sister called the
police," and she "kept saying no, stop, but he didn't" are
unrelated to her medical history, her injuries and the need for
treatment, and are inadmissible under N.J.R.E. 803(c)(4). See
Cestero, 57 N.J. at 501; Pillar, 359 N.J. Super. at 289.
Because there was no objection to Kaiser's testimony about
S.S. statements at trial, we consider its admission under the
plain error standard. R. 2:10-2. We will disregard the error
unless it is "clearly capable of producing an unjust result."
18 A-1137-15T1
State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2);
State v. Bakka, 176 N.J. 533, 547-48 (2003). The error must be
"sufficient to raise a reasonable doubt as to whether [it] led the
jury to a result it otherwise might not have reached." State v.
Macon, 57 N.J. 325, 336 (1971). Based on that standard, we find
no plain error in the admission of Kaiser's testimony.
The testimony added little and did not prejudice E.W. S.S.
testified at trial, provided the same version of the events she
relayed to Kaiser and was subject to cross-examination. Moreover,
in E.W.'s statement to the police, he corroborated that he was
with S.S. and took her to his home and into the basement. The
evidence established E.W.'s DNA was found in S.S.'s anus. Indeed,
E.W.'s counsel's decision to allow the testimony without objection
"weigh[s] heavily" against a finding of prejudice establishing
plain error. State v. Cain, 224 N.J. 410, 432 (2016). "[A]ny
finding of plain error depends on an evaluation of the overall
strength of the State's case." State v. Nero, 195 N.J. 397, 407
(2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)); see
also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming
conviction given the strength of evidence against the defendant
despite the admission of improper expert testimony); State v.
Soto, 340 N.J. Super. 47, 65 (App. Div. 2001) (holding that
erroneous admission of hearsay testimony that the defendant was
19 A-1137-15T1
involved in a robbery was harmless error in view of the other
proofs establishing guilt). We have considered the trial record,
the weight of the evidence against E.W., and the insignificance
of Kaiser's testimony concerning S.S.'s statements, and are
satisfied the testimony was not clearly capable of producing a
result the jury would not have otherwise reached.
B.
E.W. next claims the court erred by denying his motion to
sever his trial from M.C.'s. In M.C.'s statement to the police,
he explained that when he saw S.S. on January 31, 2011, he observed
that "something is wrong with her" and "she [is] not too – up
here[,] she [is] not wrapped too tight." After the court
determined those statements were admissible in E.W. and M.C.'s
joint trial, E.W. made a severance motion claiming admission of
the statements violated his Sixth Amendment right to confront the
witnesses against him. See Bruton v. United States, 391 U.S. 123,
136 (1968); State v. Weaver, 219 N.J. 131, 153 (2014). The court
denied the motion, finding severance was unnecessary because the
statements did not infringe on E.W.'s confrontation rights under
Bruton.
There is a high risk of prejudice to a defendant "where the
powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant,
20 A-1137-15T1
are deliberately spread before the jury in a joint trial." Bruton,
391 U.S. at 135-36. Thus, where a co-defendant does not testify
at trial, those portions of the co-defendant's statements that
directly implicate a defendant are not admissible. Id. at 132;
Weaver, 219 N.J. at 153.
As our Supreme Court recognized in Weaver, "Bruton's
application is limited" and "does not apply to a statement that
is linked to the defendant only through other evidence and 'is not
incriminating on its face.'" 219 N.J. at 153 (quoting Richardson
v. Marsh, 481 U.S. 200, 208 (1987)); see also Gray v. Maryland,
523 U.S. 185, 195-96 (1998); Richardson, 481 U.S. at 208. "If the
co-defendant's incriminatory statement requires the jury to make
an inferential step to link the statement to the defendant, the
statement is admissible." Weaver, 219 N.J. at 159.
Here, M.C.'s statements concerning his observations of S.S.
do not, on their face, directly implicate E.W. in the commission
of any crime. To the contrary, they pertain solely to M.C.'s
perceptions, and do not provide any information about E.W. or his
observations of S.S. E.W. argues the jury may have relied on
M.C.'s statements to conclude that he also perceived S.S. as having
a mental disability or defect, but the jury's potential use of the
statements to make such an inferential link did not violate E.W.'s
confrontation rights under Bruton. Id. at 153, 159. Thus, the
21 A-1137-15T1
court correctly denied E.W.'s severance motion because M.C.'s
statements were admissible at their joint trial.
We also reject E.W.'s contention, made for the first time on
appeal, that M.C.'s statements should have been excluded under
N.J.R.E. 403 because they were unduly prejudicial and of no
probative value. Where a party objects to the admission of
evidence under N.J.R.E. 403 as unduly prejudicial, "the inquiry
. . . is whether the probative value of the evidence 'is so
significantly outweighed by [its] [prejudicial] inflammatory
potential as to have a probable capacity to divert the minds of
the jurors from a reasonable and fair evaluation of the' issues."
State v. Cole, 229 N.J. 430, 448 (2017) (first alteration in
original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).
The party challenging the admission of evidence under N.J.R.E. 403
has the burden of showing the evidence should be excluded.
Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).
M.C.'s knowledge of S.S.'s mental disability was an element
of one of the offenses with which he was charged. He and E.W.
were each charged with violating N.J.S.A. 2C:14-2(a)(7), which at
the time of the January 31, 2011 incident, provided that:
An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person under any one
of the following circumstances:
22 A-1137-15T1
. . . .
(7) The victim is one whom the actor knew or
should have known was physically helpless,
mentally defective or mentally
incapacitated.[3]
Thus, M.C.'s statements were highly probative because they
established he was with S.S. on January 31, 2011, and knew S.S.
suffered from a mental disability.
E.W. makes no showing the statements had any prejudicial
"inflammatory potential." See Cole, 229 N.J. at 448. In a hearing
prior to the admission of M.C.'s statements, the court ordered the
redaction of any references to E.W., and, as noted, admission of
the statements did not violate E.W.'s confrontation rights.
Moreover, there were multiple other witnesses who attested to
S.S.'s mental disability, and the court instructed the jury that
it was to separately consider the charges against E.W. and M.C.
3
One year after the January 31, 2011 incident, N.J.S.A. 2C:14-
2(a)(7) was amended. See L. 2011, c. 232. In the amendment,
which became effective on March 17, 2012, the terms "mentally
defective" and "mentally incapable" were deleted from the
definitions applicable to Chapter 14 of the Criminal Code, N.J.S.A.
2C:14-1 to -12, see L. 2011, c. 232, and N.J.S.A. 2C:14-2(a)(7)
was modified to prohibit an act of sexual penetration with another
person where "[t]he victim is one whom the actor knew or should
have known was physically helpless or incapacitated,
intellectually or mentally incapacitated, or had a mental disease
or defect which rendered the victim temporarily or permanently
incapable of understanding the nature of his conduct, including,
but not limited to, being incapable of providing consent," see
ibid.; compare N.J.S.A. 2C:14-2(a)(7) (2011), with N.J.S.A. 2C:14-
2(a)(7) (2012).
23 A-1137-15T1
based only on the evidence relevant and material to the separate
charges. In sum, there is no basis to conclude admission of the
statements violated N.J.R.E. 403, and E.W. otherwise makes no
showing that even if it did, the admission constitutes plain error.
See R. 2:10-2.
C.
We next consider E.W.'s argument that the court erred by
denying his motion for acquittal notwithstanding the verdict or,
in the alternative, a new trial. E.W. offers little in support
of the contention, other than conclusory assertions that his
convictions are not supported by sufficient evidence, and
affirmance of his convictions would constitute a manifest
miscarriage of justice.
Rule 3:18-1 provides that a court "shall . . . order . . .
a judgment of acquittal . . . if the evidence is insufficient to
warrant a conviction . . . ." The court must determine if
the evidence viewed in its entirety, and
giving the State the benefit of all of its
favorable testimony and all of the favorable
inferences which can reasonably be drawn
therefrom, is such that a jury could properly
find beyond a reasonable doubt that the
defendant was guilty of the crime charged.
[State v. D.A., 191 N.J. 158, 163 (2007);
accord State v. Reyes, 50 N.J. 454, 458-59
(1967).]
24 A-1137-15T1
We review a trial court's denial of a motion for acquittal de
novo. State v. Williams, 218 N.J. 576, 593-94 (2014).
Rule 3:20-1 allows a trial court to grant a defendant's new
trial motion "if required in the interest of justice." A trial
court's ruling on a new trial motion "shall not be reversed unless
it clearly appears that there was a miscarriage of justice under
the law." R. 2:10-1; accord State v. Perez, 177 N.J. 540, 555
(2003). Further, a "motion for a new trial is addressed to the
sound discretion of the trial judge, and the exercise of that
discretion will not be interfered with on appeal unless a clear
abuse has been shown." State v. Armour, 446 N.J. Super. 295, 306
(App. Div.) (quoting State v. Russo, 333 N.J. Super. 119, 137
(App. Div. 2000)), certif. denied, 228 N.J. 156 (2016).
Measured against these standards, we affirm the court's
denial of E.W.'s motion for acquittal or a new trial. Our review
of the record reveals ample evidence supporting defendant's
convictions. His arguments to the contrary are without sufficient
merit to warrant further discussion in a written opinion. R.
2:11-3(e)(2).
III.
We next address M.C.'s arguments in A-1137-15 that the court
erred by: denying his severance motion because he was prejudiced
by being tried with E.W., who was charged with first-degree
25 A-1137-15T1
kidnapping; denying his motion for acquittal on the first-degree
aggravated sexual assault charged under N.J.S.A. 2C:14-2(a)(7) and
incorrectly charging the jury concerning the elements of the
offense; allowing the prosecutor to argue in summation that S.S.'s
anal tear constituted evidence the intercourse was forced; and
permitting Schlesinger to testify about the credibility of other
witnesses. We are not persuaded and affirm M.C.'s convictions.
A.
Defendant first argues the court erred by denying his motion
to sever his trial from E.W.'s trial. He contends he was unduly
prejudiced by the joinder because E.W. was charged and tried for
first-degree kidnapping, and there was no allegation he had any
knowledge about the alleged kidnapping or participated in its
commission. M.C. asserts the jury's determination S.S. was a
kidnapping victim lowered the bar for the State's proofs he
committed the charged sexual assaults, and evidence concerning the
kidnapping affected the jury's perception of his interactions with
S.S.
Rule 3:7-7 permits joinder of two or more defendants who "are
alleged to have participated in the same act or transaction or in
the same series of acts or transactions constituting an offense
or offenses." State v. Brown, 170 N.J. 138, 159-60 (2001).
"[W]hen 'much of the same evidence is needed to prosecute each
26 A-1137-15T1
defendant,'" there is a "general preference to try codefendants
jointly." Id. at 160 (first quoting State v. Brown, 118 N.J. 595,
605 (1990); and then quoting State v. Robinson, 253 N.J. Super.
346, 364 (App. Div. 1992)). Although the "preference is guided
by a need for judicial efficiency, to accommodate witnesses and
victims, to avoid inconsistent verdicts, and to facilitate a more
accurate assessment of relative culpability," ibid., the "interest
in judicial economy cannot override a defendant's right to a fair
trial," ibid. (quoting State v. Sanchez, 143 N.J. 273, 282 (1996));
see also Weaver, 219 N.J. at 148 (finding a joint trial of co-
defendants is "preferable" where they "are alleged to have
participated in the same act or transaction").
Where "it appears that a defendant or the State is prejudiced
by" joinder of defendants, a court "may order . . . separate trials
of counts, grant a severance of defendants, or direct other
appropriate relief." R. 3:15-2(b). In determining a severance
motion under Rule 3:15-2(b), "a court must balance the potential
prejudice to a defendant against the interest in judicial economy."
Brown, 170 N.J. at 160. For example, "a defendant is prejudiced
by a joint trial . . . when [the] defendant's and a co-defendant's
defenses are not simply at odds, but are 'antagonistic at their
core,' meaning that they are mutually exclusive and the jury could
27 A-1137-15T1
believe only one of them." Weaver, 219 N.J. at 149 (quoting Brown,
118 N.J. at 605-07).
Disposition of a motion to sever is left to "the sound
discretion of the trial court," Brown, 170 N.J. at 160 (quoting
State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985)). We
will reverse a denial of a severance motion "only if it constitutes
an abuse of discretion." Weaver, 219 N.J. at 149.
Here, we are not persuaded the court abused its discretion
by denying M.C.'s severance motion. In the first instance, M.C.
and E.W.'s defenses at trial were not antagonistic, mutually
exclusive or irreconcilable, "meaning . . . the jury could believe
only one of them." Ibid. Through their counsel, they argued in
a consistent manner their sexual activity with S.S. was consensual
and S.S. was not a credible witness. Thus, the jury could "return
a verdict against one or both defendants by believing neither, or
believing portions of both, or, indeed, believing both
completely[.]" Brown, 170 N.J. at 160 (quoting Brown, 118 N.J.
at 606).
In addition, although E.W. was charged with kidnapping and
M.C. was not, the evidence about the kidnapping was limited,
pertained solely to E.W. and was wholly unrelated to M.C. See
State v. Manney, 26 N.J. 362, 369 (1958) (finding prejudice from
joinder of defendants "cannot be grounded merely upon that
28 A-1137-15T1
eventuality" that there will be "some evidence . . . admissible
only as to one defendant"); accord State v. Mayberry, 52 N.J. 413,
421 (1968); State v. Chaney, 160 N.J. Super. 49, 66 (App. Div.
1978). Nor was there any allegation, showing or argument that
E.W.'s kidnapping of S.S. was made known to M.C. To the contrary,
as M.C. acknowledges and argues, the kidnapping took place when
E.W. made false statements to B.S. and L.L. to remove S.S. from
her home, and there was no evidence M.C. was involved in S.S.'s
removal or was present in the vehicle that transported from her
home. The evidence concerning the kidnapping did not prejudice
M.C. because none of it pertained to him.
The court also ameliorated any potential prejudice by
instructing the jury E.W. "is charged with the crime of
kidnapping," the "charge only pertains to" E.W., and M.C. "is not
charged with kidnapping." The court further instructed the jurors
they were required to consider E.W. and M.C.'s "guilt or innocence
separately . . . on each count by the evidence that is relevant
and material to the particular charge," and "decide each case
individually," and we presume the jury followed the court's
instructions. State v. Martini, 187 N.J. 469, 477 (2006); see
also State v. Yormark, 117 N.J. Super. 315, 331-32 (App. Div.
1971) (finding the trial court did not err by denying the severance
motion where the court instructed the jury to separately consider
29 A-1137-15T1
the crimes charged against each defendant and to consider only the
evidence pertinent to each charge).
"While any joinder of offenses or defendants has some
potential for harm," Chaney, 160 N.J. Super. at 66, a mere claim
or possibility of prejudice is insufficient to require severance,
State v. Moore, 113 N.J. 239, 274 (1988). Here, M.C. fails to
demonstrate any prejudice from the joinder of the charges against
E.W. in his trial, and the court's jury instructions dissipated
any possibility of prejudice. The court did not abuse its
discretion by denying M.C.'s severance motion.
B.
M.C. next argues the court erred by denying his motion for a
judgment of acquittal at the conclusion of the State's case on
count five, which charged first-degree sexual assault in violation
of N.J.S.A. 2C:14-2(a)(7). More particularly, he claimed the
State failed to present sufficient evidence establishing S.S. was
"mentally defective" within the meaning of N.J.S.A. 2C:14-1(h)
and, as a result, the State did not prove one of the elements of
aggravated sexual assault under N.J.S.A. 2C:14-2(a)(7). M.C.
further argues the court's charge concerning N.J.S.A. 2C:14-
2(a)(7) erroneously instructed the jury to consider the facts
surrounding the incident.
30 A-1137-15T1
On January 31, 2011, N.J.S.A. 2C:14-2(a)(7) provided that
"[a]n actor is guilty of aggravated sexual assault if he commits
an act of sexual penetration with another person" where "[t]he
victim is one whom the actor knew or should have known was
physically helpless, mentally defective or mentally
incapacitated." In count five, M.C. was charged with committing
the offense because S.S. was "mentally defective." N.J.S.A. 2C:14-
1(h)4 defined "mentally defective" as a "condition in which a
person suffers from a mental disease or defect which renders that
person temporarily or permanently incapable of understanding the
nature of his conduct, including, but not limited to, being
incapable of providing consent[.]" N.J.S.A. 2C:14-1(h) (2011).
In State v. Olivio, 123 N.J. 550, 564 (1991), the Court
explained there were "significant policy considerations
commend[ing] a narrow interpretation of the concept of mentally
defective under N.J.S.A. 2C:14-1(h)," and formulated a "standard
defining 'mentally defective' for purposes of explaining and
applying N.J.S.A. [2C:14-2(a)(7)]."5 The court held that "a person
4
As noted in footnote 4, supra, N.J.S.A. 2C:14-1(h) was
subsequently deleted and N.J.S.A. 2C:14-2(a)(7) was amended. L.
2011, c. 232. We address only the statutory provisions extant at
the time of the January 31, 2011 incident.
5
In 1985, when the offense charged in Olivio was allegedly
committed, sexual penetration of a "mentally defective" victim
31 A-1137-15T1
is mentally defective under N.J.S.A. [2C:14-2(a)(7)] if, at the
time of the sexual activity, the mental defect rendered him or her
unable to comprehend the distinctively sexual nature of the
conduct, or incapable of understanding or exercising the right to
refuse to engage in such conduct with another." Ibid. (emphasis
added). "[I]n evaluating the evidence of [the victim's] mental
condition," the "test of 'mentally defective'" has three
components: "knowledge that conduct is sexual, an understanding
that one has the right to refuse to engage in sex, and the ability
to assert that right." Id. at 566-67.
M.C. argues he was entitled to dismissal of the N.J.S.A.
2C:14-2(a)(7) (2011) aggravated sexual assault charge because the
prosecutor stated during a pretrial proceeding that S.S.
consensually engaged in sexual relations on occasions prior to the
January 31, 2011 incident, and S.S. testified at trial she said
"no" during the alleged assaults. M.C. also relies on
Schlesinger's testimony S.S. understood the basic mechanics of
constituted a sexual assault under N.J.S.A. 2C:14-2(c)(2).
Olivio, 123 N.J. at 555-56; L. 1983, c. 249. In 1997, the "offense
was upgraded from sexual assault where it had been denominated as
[N.J.S.A.] 2C:14-2(c)(2) to an aggravated sexual assault[,]
[N.J.S.A.] 2C:14-2(a)(7)[,] by L. 1997, c. 194." Cannel, New
Jersey Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:14-2 (2018).
The "mentally defective" element of the offense, however, remained
the same. Compare N.J.S.A. 2C:14-2(c)(2) (1985), with N.J.S.A.
2C:14-2(a)(7) (2011).
32 A-1137-15T1
sex, people could not force her to have sex, and there are
circumstances under which she could have consensual sex.
M.C. contends the evidence showed S.S. was not "mentally
defective" under N.J.S.A. 2C:14-2(a)(7) (2011), as that term was
interpreted by the Court in Olivio, because S.S. was aware of the
sexual nature of the conduct, understood her right to refuse
consent and asserted that right, and previously consented to sexual
intercourse. He argues the court erred by rejecting his contention
and interpreting N.J.S.A. 2C:14-2(a)(7) (2011) to permit
consideration of the circumstances of the offense in the
determination of whether S.S. was mentally defective under the
statute. We disagree.
When viewed in its entirety, and giving the State the benefit
of all reasonable inferences, there was sufficient evidence
permitting a jury to properly find defendant guilty of aggravated
sexual assault under N.J.S.A. 2C:14-2(a)(7) (2011). See State v.
D.A., 191 N.J. 158, 163 (2007) (defining the standard for motions
for judgment of acquittal). Contrary to M.C.'s assertion, there
was evidence showing S.S. was mentally defective under the statute.
Schlesinger testified S.S.'s "[m]ental retardation is so
significant, [and] so pervasive it affects every aspect of [her]
functioning[,]" and renders her "dependent on other people,"
"emotionally weak," and "unable to stand up for herself and resist
33 A-1137-15T1
almost anything." He opined that when M.C. and E.W. engaged in
sexual activity with S.S., "[a]ny ability [S.S.] had to think or
reason – any minimal ability that she may have had just completely
shut down," resulting in an inability to assert her right to resist
M.C. and E.W.'s actions.
In sum, Schlesinger opined that "at the time" of the sexual
activity, S.S.'s "mental retardation" rendered her "incapable of
understanding or exercising the right to refuse to engage in such
conduct with another." Olivio, 123 N.J. at 564. Although there
was evidence showing S.S. understood the sexual nature of the
conduct and her right to refuse to engage in the conduct, M.C.
argued at trial that S.S. consented to the sexual activity.
Schlesinger's testimony, however, established S.S. was mentally
defective because it showed that at the time of the sexual activity
she was "incapable of . . . exercising that right [to consent],
that is, whether [she] had the capacity to consent." State v.
Cuni, 159 N.J. 584, 595-96 (1999) (internal citation omitted).
The court did not err by denying M.C.'s motion for acquittal.
The court also did not err by adding to the model jury
instruction on N.J.S.A. 2C:14-2(a)(7), Model Jury Charges
(Criminal), "Aggravated Sexual Assault (Mentally Incapacitated)
(N.J.S.A. 2C:14-2(a)(7)) (Offenses arising before March 17, 2012)"
34 A-1137-15T1
(rev. Feb. 6, 2012), that in its determination of whether S.S.
suffered from a mental defect,
[t]he critical issue is [S.S.'s] capacity to
consent in the sense that if she was unwilling
to engage in the sexual acts at issue in this
case, she had the mental and emotional ability
to refuse. The inquiry, therefore, centers
on [S.S.'s] mental condition and state of mind
that would reflect that incapacity taking into
consideration the facts as you find them to
be when the sexual conduct occurred.
A jury must be properly instructed to ensure that a defendant
receives a fair trial. State v. McKinney, 223 N.J. 475, 495 (2015)
(citing State v. Afanador, 151 N.J. 41, 54 (1997)). A trial court
must deliver "a comprehensible explanation of the questions that
the jury must determine, including the law of the case applicable
to the facts that the jury may find." Ibid. (quoting State v.
Green, 86 N.J. 281, 287-88 (1981)).
M.C. objected to the jury charge and, therefore, we apply the
harmless error standard of review. State v. Baum, 224 N.J. 147,
159 (2016); see also R. 2:10-2. Under that standard, defendant
must demonstrate "some degree of possibility that [the error] led
to an unjust result. The possibility must be real, one sufficient
enough to raise a reasonable doubt as to whether [it] led the jury
to a verdict it otherwise might not have reached." Baum, 224 N.J.
at 159 (alteration in original) (quoting State v. Lazo, 209 N.J.
9, 26 (2012)).
35 A-1137-15T1
When a challenge to a jury charge is raised on appeal, the
charge must be read as a whole; we will not read just the portion
alleged as error. State v. Delibero, 149 N.J. 90, 106 (1997).
"[P]ortions of a charge alleged to be erroneous cannot be dealt
with in isolation but the charge should be examined as a whole to
determine its overall effect." State v. Gartland, 149 N.J. 456,
473 (1997) (alteration in original). We are required to consider
"in the context of the entire case, whether the error was clearly
capable of affecting the verdict or the sentence." State v. Bey,
129 N.J. 557, 624-25 (1992) (citation omitted).
The jury charge ought to serve as a "road map to guide the
jury," State v. Martin, 119 N.J. 2, 15 (1990), and provide a
precise, "comprehensible explanation of the questions that [it]
must determine, including the law of the case applicable to the
facts that [it] may find[,]" Green, 86 N.J. at 287-88. However,
not every inaccuracy in jury charges warrants reversal. State v.
Jordan, 147 N.J. 409, 422 (1997). Reversal should occur only
where the error, considered in the context of the charge as a
whole, "prejudicially affect[s] the substantial rights of the
defendant sufficiently grievous[ly] to justify notice by the
reviewing court and to convince the court that of itself the error
possessed a clear capacity to bring about an unjust result." Ibid.
(quoting State v. Hock, 54 N.J. 526, 538 (1969)). These principles
36 A-1137-15T1
arise from well-settled jurisprudence that a defendant is entitled
to a fair trial, not a perfect one. See State v. Boiardo, 111
N.J. Super. 219, 233 (App. Div. 1970).
Applying these standards, we find no error in the court's
instruction. The court defined the term mental defect in its
recitation of the model jury charge, and the language the court
added is in accordance with the Court's interpretation of the
"mentally defective" element of a first-degree aggravated sexual
assault under N.J.S.A. 2C:14-2(a)(7). Olivio, 123 N.J. at 553.
A victim is mentally defective "if, at the time of the sexual
activity, he or she is unable to comprehend the distinctively
sexual nature of the conduct or is incapable of understanding or
exercising the right to refuse to engage in such conduct with
another." Ibid. The Court further observed that a mental defect
is determined "in the context of the evidence that relates to the
complainant's mental condition and conduct[,]" and directed that
"[t]he trial court's instructions should inform the jury that the
alleged victim's capacity to understand and consent to the
proffered sexual conduct must be considered in the context of all
of the surrounding circumstances in which it occurred." Id. at
568. That is precisely what the trial court did here.
37 A-1137-15T1
C.
During a pretrial hearing, defendants moved to bar the State
from claiming the anal tear Kaiser discovered during her
examination of S.S. showed S.S. was the victim of nonconsensual
anal sex. Defendants asserted that, in the absence of expert
testimony, there was no support in the evidence for such a claim.
The court reserved decision on the request, but did not later
directly address the issue or rule on the request.
However, during his summation the prosecutor referred to the
evidence showing the anal tear and said the State "submits that
[it] shows force and . . . backs up what [S.S.] is saying." The
court overruled M.C.'s counsel's objection to the statement.
M.C. argues the prosecutor's argument was improper because
there was no expert testimony supporting the assertion the anal
tear was caused by nonconsensual anal sex, and the comment was not
otherwise supported by the evidence. He claims the argument
deprived him of a fair trial and requires a reversal of his
convictions.
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the
scope of the evidence presented." State v. Cordero, 438 N.J.
Super. 472, 489-90 (App. Div. 2014) (quoting State v. Frost, 158
N.J. 76, 82 (1999)). "[I]n the prosecutor's effort to see that
38 A-1137-15T1
justice is done, the prosecutor 'should not make inaccurate legal
or factual assertions during a trial.'" State v. Bradshaw, 195
N.J. 493, 510 (2008) (quoting Frost, 158 N.J. at 85). "Rather, a
prosecutor should 'confine [his or her] comments to evidence
revealed during the trial and reasonable inferences to be drawn
from that evidence.'" Ibid. (alteration in original) (quoting
State v. Smith, 167 N.J. 158, 178 (2001)). A prosecutor may make
arguments "based on the facts of the case and reasonable inferences
therefrom[.]" Smith, 167 N.J. at 178.
M.C. argues the prosecutor's comments were improper because
in State v. Jones, 308 N.J. Super. 174, 183-84 (App. Div. 1998),
we rejected a defendant's attempt to argue, in summation, that the
absence of a broken hyoid bone in the victim's neck proved
defendant's conduct was reckless rather than purposeful. Ibid.
We affirmed the trial court's ruling barring the defendant's
argument because there was no evidence concerning the hyoid bone
and, therefore, any reference to it by defense counsel "exceeded
the 'four corners' of the evidence." Id. at 185.
We further observed that the trial court barred the
defendant's argument because it was premised on an inference that
the absence of a broken hyoid bone showed "great pressure was not
exerted" and, therefore, "there was a less degree of force applied
than that which is purposeful or knowing." Id. at 184. We
39 A-1137-15T1
determined defendant's argument "dealt with [a matter] 'so
esoteric that jurors of common judgment and experience cannot'
otherwise form a valid judgment as to the fact in issue without
expert testimony." Id. at 185 (quoting Butler v. Acme Markets,
Inc., 89 N.J. 270, 283 (1982)).
Here, unlike in Jones, there was evidence directly supporting
the prosecutor's argument. Kaiser described "a tear approximately
a quarter of an inch wide" and S.S. testified she was forcibly,
anally sexually assaulted multiple times by two different men
during the evening of January 31, 2011, and suffered anal pain
following the assaults.
The prosecutor's argument, however, was not limited to the
presence of the anal tear. Instead, he "submit[ted]" the tear
provided confirmation that force was used, thereby requiring
rejection of any conclusion, and defendant's contention, the anal
intercourse was consensual. We are convinced that whether an anal
tear demonstrates the use of force or otherwise is simply the
byproduct of consensual anal sex is an issue that is sufficiently
esoteric as to be beyond the common judgment and experience of
jurors. See ibid.; see generally State v. Hyman, 451 N.J. Super.
429, 443 (App. Div. 2017) (quoting State v. Kelly, 97 N.J. 178,
208 (1984) (finding expert opinion testimony is required on subject
matters "beyond the ken of the average juror")), certif. denied,
40 A-1137-15T1
232 N.J. 301 (2018). The court, therefore, erred by overruling
M.C.'s objection to the prosecutor's argument. The argument was
not supported by the evidence.
Nonetheless, an "isolated comment[]" in summation, even if
improper, does not constitute reversible error unless it
"substantially prejudice[s] defendant's right to a fair trial."
State v. Darrian, 255 N.J. Super. 435, 454 (App. Div. 1992).
Remarks during a prosecutor's summation must be considered in
context of the entire trial. State v. Engel, 249 N.J. Super. 336,
382 (App. Div. 1991). That includes consideration of whether the
remarks "were a measured response to defendant's summation made
in an attempt to 'right the scale.'" State v. Murray, 338 N.J.
Super. 80, 88 (App. Div. 2001) (quoting Engel, 249 N.J. Super. at
379).
"Whether particular prosecutorial efforts can be tolerated
as vigorous advocacy or must be condemned as misconduct is often
a difficult determination to make. In every instance, the
performance must be evaluated in the context of the entire trial,
the issues presented, and the general approaches employed." State
v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify
reversal, the prosecutor's conduct must have been clearly and
unmistakably improper, and must have substantially prejudiced
[the] defendant's fundamental right to have a jury fairly evaluate
41 A-1137-15T1
the merits of his [or her] defense." State v. Nelson, 173 N.J.
417, 460 (2002) (alterations in original) (quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000)).
We discern no basis to reverse M.C.'s conviction based on the
prosecutor's fleeting assertion the anal tear demonstrated S.S.
was forcibly anally sexually assaulted. There was other evidence
showing S.S. was forcibly sexually assaulted, including her
testimony that as she endured more than an hour of anal penetration
by the two defendants during which she repeatedly said "no" and
requested that they stop. Moreover, the prosecutor did not
misstate the evidence – there is no dispute S.S. had an anal tear
- but instead only made argument, stating he "submit[ted]" the
tear showed the use of force. The jury was properly instructed
the prosecutor's arguments did not constitute evidence and that
it was required to decide the case based solely on the evidence,
and law provided in the court's instructions. Again, we presume
the jury followed the court's instructions, Martini, 187 N.J. at
477, and, when considered in the context of the entire trial,
discern no basis to conclude the prosecutor's argument
substantially prejudiced M.C.'s right to a fair trial, Nelson, 173
N.J. at 460.
42 A-1137-15T1
D.
M.C. further contends the court erred by allowing Schlesinger
to testify concerning whether S.S. had the capacity to consent to
sexual activity under the circumstances presented because the
issue was within the ken of jurors. He also argues Schlesinger
was erroneously permitted to testify concerning the credibility
of other trial witnesses.
We review a trial court's decision to admit or exclude expert
testimony for an abuse of discretion, State v. Torres, 183 N.J.
554, 567 (2005), and will disturb a court's evidentiary decisions
only when it commits "a clear error of judgment[,]" State v.
Marrero, 148 N.J. 469, 483 (1997) (citation omitted).
N.J.R.E. 702 permits a witness who possesses "knowledge,
skill, experience, training, or education" to offer expert opinion
testimony where specialized knowledge will assist the jury "to
understand the evidence or to determine a fact in issue."
Testimony in the form of an expert opinion that is otherwise
admissible is not objectionable even if it embraces an ultimate
issue to be decided by the jury. N.J.R.E. 704. Experts are not
permitted to offer an opinion on a defendant's guilt or innocence,
and they should not use the statutory language defining the charged
offenses, in order to avoid offering legal conclusions. State v.
Odom, 116 N.J. 65, 77, 80 (1989).
43 A-1137-15T1
N.J.R.E. 702 includes three requirements for the admission
of expert testimony, which are interpreted liberally because of
N.J.R.E. 702's inclination in favor of the admissibility of expert
testimony. See State v. Rosales, 202 N.J. 549, 562 (2010). To
be admissible
(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to must
be at a state of the art such that an expert's
testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise
to offer the intended testimony.
[State v. Jenewicz, 193 N.J. 440, 454 (2008).]
Schlesinger, the State's expert in forensic psychology,
properly testified concerning S.S.'s mental capacity under the
circumstances presented on January 31, 2011. S.S. suffered from
severe "[m]ental retardation," and the effect of the mental defect
on her ability to "comprehend the distinctively sexual nature of
the [sexual] conduct," and "understand[] or exercis[e] the right
to refuse to engage in such conduct with another" at the time of
sexual activity was a proper subject for expert testimony. See
Olivio, 123 N.J. at 564. The effect S.S.'s mental defect had on
her ability to consent was clearly beyond the understanding of
persons of "ordinary experience, education and knowledge[,]" Odom,
116 N.J. at 71, and was a subject "so esoteric that jurors of
common judgment and experience [could not] form a valid judgment"
44 A-1137-15T1
in the absence of expert testimony, Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 407 (2014) (quoting Butler, 89 N.J. at 283);
see, e.g., Olivio, 123 N.J. 553-56 (summarizing expert testimony
concerning a sexual assault victim's mental defect). The court
did not abuse its discretion by permitting Schlesinger to testify
concerning S.S.'s mental defect and its effect on her ability to
consent to the disputed sexual activity.
We further reject M.C.'s argument that the court erred by
permitting Schlesinger to respond to the prosecutor's question
as to how S.S.'s mental defect "impact[ed] her ability to say no
in a situation where hypothetically . . . she is in a basement, a
dark basement, with two people who are attempting to orally and
anally penetrate her?" M.C. argues Schlesinger's response to the
question, that S.S.'s mental defect rendered her "totally unable
to exercise any of her rights not to consent" and "helpless" is
barred by the Court's holding in Cain that an expert in a drug
case may not offer an opinion in response to a hypothetical
question concerning a defendant's intent because "an expert is no
better qualified than a juror to determine the defendant's state
of mind after the expert has given testimony on the peculiar
characteristics of drug distribution that are beyond the juror's
common understanding." 224 N.J. at 427. The Court determined
that "such ultimate-issue testimony may be viewed as an expert's
45 A-1137-15T1
quasi-pronouncement of guilt" in drug cases and usurp the jury's
factfinding function. Ibid.
Unlike the issue of the defendant's intent to distribute
drugs in Cain, the effect of S.S.'s mental defect on her ability
to consent to sexual activity under the circumstances presented
was an issue well beyond the ken of the average juror. It cannot
be said, as it was in Cain, that the expert "is no[t] better
qualified than a juror to determine" the effect of S.S.'s mental
defect. See ibid. Nor can it be said Schlesinger offered an
opinion on M.C.'s guilt or usurped the jury's factfinding role.
To the contrary, he offered proper expert opinion on a subject
about which the average juror could reasonably be expected to know
little - the effect of S.S.'s mental defect on her abilities
relevant under the Olivio standard. See Olivio, 123 N.J. at 564.
M.C. last argues he is entitled to a reversal of his
convictions because during questioning by E.W.'s counsel,
Schlesinger said B.S. and L.L. "seemed very credible to [him] and
they were corroborated[,]" and characterized as "preposterous"
V.B.'s testimony that S.S. did not protest during the alleged
sexual assaults. M.C. did not object to E.W.'s counsel's questions
or Schlesinger's responses. We therefore review his argument
under the plain error standard. R. 2:10-2; Daniels, 182 N.J. at
95.
46 A-1137-15T1
"The inclusion of testimony directed to the credibility of
other witnesses is not permitted." State v. Terrell, 452 N.J.
Super. 226, 250 (App. Div. 2016). It is the jury's role to
determine witness credibility, State v. Vandeweaghe, 177 N.J. 229,
239 (2003), and an expert may not "be used to bolster a fact
witness's 'testimony about straightforward, but disputed facts,'"
Cain, 224 N.J. at 426-27 (quoting State v. McLean, 205 N.J. 438,
455 (2011)); see also State v. Henderson, 208 N.J. 208, 297 (2011).
It was error to permit Schlesinger to opine on the credibility
of B.S., L.L. and a portion of V.B.'s version of the events. We
do not, however, find plain error because the testimony was
fleeting, and M.C.'s failure to object suggests he did not view
the testimony as prejudicial. See State v. Krivacska, 341 N.J.
Super. 1, 42-43 (App. Div. 2001) (concluding a trial court's
failure to provide a limiting instruction was not plain error in
part because the defendant's "failure to object signifie[d] that
the error belatedly claimed was actually of no moment"). Moreover,
B.S., L.L. and V.B. testified at trial, and the court instructed
the jury on numerous occasions it had the exclusive responsibility
to determine witness credibility. In addition, the court
interrupted the prosecutor's redirect examination of Schlesinger,
and directly instructed the jury that it was their duty, and not
Schlesinger's, to make credibility determinations.
47 A-1137-15T1
Schlesinger does not have not firsthand
knowledge of the evidence of what happened in
this case. He's reviewed witness statements.
He's reviewed other evidence in the case.
There's been questioning on both sides of what
he has taken into account and about
credibility determinations that he's made.
It's your job, not his, ultimately to make
credibility determinations, to make
determinations of what you believe based on
the evidence you've heard what the facts are
from the testimony and from the admissible
evidence in the case. That's your job and
based on the credibility decisions that you
make and based on the facts that you determine
about whether this testimony and these
opinions are valid or not . . . .
We assume the jury followed the court's frequent and comprehensive
instructions, State v. Loftin, 146 N.J. 295, 390 (1996), and do
not find admission of the testimony "raise[s] a reasonable doubt
as to whether [it] led the jury to a result it otherwise might not
have reached[,]" State v. Prall, 231 N.J. 567, 581 (2018) (second
alteration in original) (quoting Daniels, 182 N.J. at 95).
IV.
E.W. and M.C. make the same arguments challenging the court's
imposition of sentence. At their separate sentencing proceedings,
the court found multiple aggravating factors under N.J.S.A. 2C:44-
1(a) supporting its imposition of defendants' sentences.
Defendants, however, challenge only the court's finding of
aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and
seriousness of the harm inflicted on the victim, including whether
48 A-1137-15T1
the defendant know or reasonably should have known the victim "was
. . . substantially incapable of exercising normal physical or
mental power of resistance[,]" and aggravating factor twelve,
N.J.S.A. 2C:44-1(a)(12), the offense was committed against a
person the defendant knew or should have known was disabled.
Defendants also claim their sentences were excessive.6
Defendants contend the court based its finding of aggravating
factors two and twelve on S.S.'s mental disability and, therefore
the court engaged in impermissible double-counting. We agree.
We review a "trial court's 'sentencing determination under a
deferential [abuse of discretion] standard of review.'" State v.
Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214
N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155,
169-70 (2006) ("On appellate review, the court will apply an abuse
of discretion standard to the sentencing court's explanation for
its sentencing decision within the entire range."). We affirm a
sentence if: (1) the trial court followed the sentencing
6
M.C. also argues the court erred by failing to find mitigating
factors two, N.J.S.A. 2C:44-1(b)(2), the defendant did not
contemplate causing serious harm, four, N.J.S.A. 2C:44-1(b)(4),
there were substantial grounds excusing or justifying the
defendant's conduct, and five, N.J.S.A. 2C:44-1(b)(5), the victim
induced or facilitated the defendant's commission of the crimes.
M.C. correctly notes the court did not make specific findings
supporting its rejection of the mitigating factors, but our
independent review of the record reveals no competent evidence or
information supporting a finding of those factors.
49 A-1137-15T1
guidelines; (2) its findings of fact and application of aggravating
and mitigating factors were based on competent, credible evidence
in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)). When reviewing a trial court's sentencing decision, we
will not "substitute [our] judgment for that of the sentencing
court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citation
omitted).
A court engages in impermissible double-counting when
"elements of a crime for which a defendant is being sentenced" are
"considered as aggravating circumstances in determining that
sentence." State v. Kromphold, 162 N.J. 345, 353 (2000) (citing
State v. Yarbough, 100 N.J. 627, 633 (1985)). A court may not
"double count" a fact that established an element of the offense
as a basis to support an aggravating or mitigating factor.
Fuentes, 217 N.J. at 74-75; Kromphold, 162 N.J. at 353; Yarbough,
100 N.J. at 633.
"[A] sentencing court must scrupulously avoid 'double-
counting' facts that establish the elements of the relevant
offense." Fuentes, 217 N.J. at 74-75 (citing Yarbough, 100 N.J.
at 645). A court, however, does not engage in double-counting
when it considers facts showing defendant did more than the minimum
50 A-1137-15T1
the State is required to prove to establish the elements of an
offense. Id. at 75; see State v. Mara, 253 N.J. Super. 204, 214
(App. Div. 1992) ("The extent of the injuries, which exceed the
statutory minimum for the offense, may be considered as
aggravating.").
Here, the court cited S.S.'s mental disability, and relied
upon it as a basis for finding aggravating factors two and twelve
in imposing defendants' respective sentences. The court's
reliance on S.S.'s disability, however, constituted impermissible
double-counting supporting the sentences imposed on defendants'
convictions for first-degree aggravated sexual assault under
N.J.S.A. 2C:14-2(a). An element of the offense was that the victim
"was mentally defective, or mentally incapacitated." See N.J.S.A.
2C:14-2(a) (2011). Thus, the court erred by counting a fact –
S.S.'s mental disability – that established an element of the
offense to support its finding of aggravating factors two and
twelve. See Fuentes, 217 N.J. at 74-75; Kromphold, 162 N.J. at
353; Yarbough, 100 N.J. at 633. The court's finding of aggravating
factors two and twelve did not constitute improper double-counting
in its sentencing on the other charges for which defendants were
convicted because S.S.'s mental defect or incapacity is not an
element of any of those offenses.
51 A-1137-15T1
We therefore are constrained to vacate defendants' respective
sentences on the first-degree aggravated sexual assault charges
under N.J.S.A. 2C:14-2(a)(7), and remand for resentencing on those
charges only.7 See Fuentes, 217 N.J. at 70 (finding "[a]n
appellate court may . . . remand for resentencing if the trial
court considers an aggravating factor that is inappropriate to a
particular defendant or to the offense at issue."). We do not
offer an opinion as to whether the record otherwise supports a
finding of the aggravating factors based on information and
evidence other than S.S.'s mental defect or incapacity, and leave
that determination to the court on remand.
Defendants' argument that the sentences imposed on the
other charges were excessive is without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We
note only that, in imposing defendants' sentences on each of the
other charges, the court did not violate the sentencing
guidelines, fail to base its finding of aggravating and
mitigating factors on competent and credible evidence or impose
7
E.W. was convicted and sentenced for first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(7), under count four of the
indictment. M.C. was convicted and sentenced for the offense
under count five. The court's finding of aggravating factors two
and twelve did not constitute improper double-counting in its
sentencing on the other charges for which defendants were
convicted, because S.S.'s mental defect or incapacity is not an
element of any of those charges.
52 A-1137-15T1
sentences that shock our judicial conscience. See Fuentes, 217
N.J. at 70; Bolvito, 217 N.J. at 228.
In A-1148-15, we affirm E.W.'s convictions on all counts,
affirm the sentences on counts one and two, vacate the sentence
on count four and remand for resentencing on count four. We do
not retain jurisdiction.
In A-1137-15, we affirm M.C.'s convictions on all counts,
affirm his sentence on count three, vacate the sentence on count
five and remand for resentencing on count five. We do not retain
jurisdiction.
53 A-1137-15T1