STATE OF NEW JERSEY VS. J.S. (14-08-2330, 10-09-2485, AND 11-03-0677, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3515-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.S.1,

Defendant-Appellant.
________________________________

Submitted May 1, 2018 – Decided July 19, 2018

Before Judges Sumners and Natali.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
14-08-2330, 10-09-2485 and 11-03-0677.

Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

1
We use fictitious names for the defendant, the victim and a
witness to protect the victim's privacy interests.
 Defendant appeals from his conviction by a jury of first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count

two), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7)

(lesser included offense of count five), third-degree aggravated

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count six),

third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count

seven), third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count eight), and fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count nine).

We affirm.

At the sentencing hearing, the trial court considered

aggravating factors one, two, three, six, and nine and found no

mitigating factors. The trial court granted the State's motion

to sentence defendant to an extended term of imprisonment as a

persistent offender pursuant to N.J.S.A. 2C:44-3(a).

Regarding count two, defendant was sentenced to a thirty-five

year prison term with eighty-five percent of the sentence to be

served without parole eligibility in addition to a five year period

of parole supervision upon release and Megan's Law registration

requirements and parole supervision for life. Under counts five,

six, and eight, defendant was sentenced to five-year concurrent

prison terms. The trial court merged count seven with count two,

and count nine with count eight. Counts one, three, and four were

2 A-3515-15T1
dismissed. Additionally, having found defendant guilty of

violating his probation under counts one and two, the trial court

sentenced defendant to four years imprisonment for each count,

with sentences to run concurrently.

Defendant raises the following points on appeal:

POINT I

THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY
STATEMENTS [SALLY] ALLEGEDLY MADE TO CATHY AND
THE EXAMINING NURSE AS PRIOR CONSISTENT
STATEMENTS.

POINT II

THE PROSECUTOR'S BASELESS ARGUMENT IN
SUMMATION THAT THE PRESENCE OF TOUCH DNA
MATCHING [DEFENDANT] IN [SALLY'S] UNDERWEAR
SUPPORTED HER ALLEGATION OF SEXUAL ASSAULT
CONSTITUTED PROSECUTORIAL MISCONDUCT THAT
DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR
TRIAL.

POINT III

THE MOTION JUDGE ERRED IN DENYING
[DEFENDANT'S] MOTION TO DISMISS COUNTS EIGHT
AND NINE OF THE INDICTMENT FOR LACK OF
SPECIFICITY AS TO THE WEAPON PURPORTEDLY USED,
RESULTING IN A JURY CHARGE AND VERDICT SHEET
THAT FAILED TO ENSURE UNANIMOUS FINDINGS ON
THE WEAPONS CHARGES.

POINT IV

THE TRIAL JUDGE ERRED IN FINDING AGGREGATING
FACTORS ONE AND TWO, FAILING TO FIND
MITIGATING FACTOR ELEVEN, AND IN DETERMINING
THE AUTHORIZED SENTENCING RANGE FOR THE
AGGRAVATED SEXUAL ASSAULT CONVICTION,

3 A-3515-15T1
 RESULTING IN A MANIFESTLY EXCESSIVE AGGREGATE
THIRTY-FIVE-YEAR [sic] SENTENCE.

After a thorough review of the record, we affirm defendant’s

convictions and the sentence imposed by the trial court.

I.

Defendant was convicted of a violent physical and sexual

assault against Sally, with whom he lived and shared a long term

romantic relationship. Sally testified that their relationship

"turned sour" and that they had not been intimate for two months

prior to the underlying incident. One night, while at home with

their two young sleeping children, defendant assaulted and raped

her.

Before the assault, and while on the phone with her friend

Cathy making plans to play an online video game later that night,

Sally overheard defendant state, "he was going to rape [her], and

tonight was going to be the night." Sally told Cathy what

defendant said and asked her to keep her phone by her side as she

would call her back once she put the children to bed.

After the children were asleep, Sally went downstairs to the

kitchen to get a bite to eat when defendant approached her in an

effort to tape her mouth shut. Although unsuccessful, he pushed

Sally into the basement where she saw a futon, blankets, a two by

four, a hammer, two knives, bleach, bags, a phone cord, an electric

4 A-3515-15T1
shock system, and a chainsaw. Defendant threatened Sally and

raped her while brandishing a knife. Defendant specifically held

a knife to Sally's face threatening to kill her, the children, and

himself if she screamed. Sally thwarted defendant's attempts to

stab her resulting in defendant puncturing the futon.

The assault in the basement terminated when Cathy came to the

home and started banging on the front door. Defendant, while still

holding a knife, prevented Sally from answering the door and told

her not to scream. He then brought her to an upstairs bathroom

and, now threatening her with a hammer that Sally stated he brought

from the basement, attempted to rape her for a second time and

stopped only when Sally reminded him that their children were

sleeping directly across the hall.

Defendant then directed Sally to get dressed, answer the door

and tell Cathy that everything was fine. Sally opened the door

and put one finger up to her mouth to advise Cathy to be quiet,

told Cathy what happened and specifically stated that defendant

"tried to kill me." Sally was shaking, panicked and crying and

had visible injuries to her face and neck.

Cathy, after checking the house phone and noticing that the

phone line was cut, called 911 using Sally's cell phone. Cathy

stayed with Sally until the police arrived approximately ten

minutes later. Upon entering the home and speaking with Sally out

5 A-3515-15T1
of defendant's presence, Sally "kept throwing signs to" her and

"talking with her hands." Further, Cathy stated she told the 911

operator that Sally "was going through it with her kids' father"

and that "he put his hands on her" and that Sally was scared and

wanted defendant out of her home. Cathy also testified that when

she first arrived at the home she peered through the mailbox slot

and observed defendant carrying a hammer with a wooden handle.2

After the police arrived, Sally was taken to the hospital and

met with a sexual assault nurse examiner (nurse) who performed a

sexual abuse evaluation. At trial, the nurse testified she took

swab samples from Sally's mouth, vagina, exterior parts of the

genitalia, and close to her anal area. She also photographed

Sally and found abrasions, bruises, and marks on her backside.

Over objection from defendant, the nurse testified that the "first

thing" Sally said to her was that defendant tried to kill her.

At trial, the State also called a State Police forensic

scientist who was qualified as an expert in DNA analysis. He

testified to performing two tests on samples from Sally's

underwear. The first test excluded defendant from the sperm

fraction found, while the second test demonstrated that defendant

matched the epithelial (skin) fraction found in the underwear.

2
The hammer introduced into evidence at trial had a rubber handle.

6 A-3515-15T1
With respect to the sperm fraction, the results demonstrated a

mixture of DNA profiles from multiple people and defendant "was

excluded as a possible contributor."

After defendant's indictment, Sally recanted her allegations

numerous times including two signed and notarized letters she sent

to the prosecutor and judge. She also visited the prosecutor's

office, claimed that defendant didn't do anything and requested

the charges be dropped. She also continued to communicate with

defendant during his incarceration and told defendant's niece,

"she didn't mean to lie" and "this was all a falsehood."

The letters were signed by Sally but written by defendant

from Sally's perspective. One of the letters read to the jury

stated:

I falsely gave the police a statement that
wasn't true in an incident that didn't occur
at all. It was a setup to get [defendant]
incarcerated and removed from [the] home. . .
. I am very sorry I lied . . . on the police
report to get him arrested and falsely
charged. I write the [affidavit] to say
[defendant] did not harm me at all, or any
kind of way.

Further, Sally withdrew a restraining order against defendant

stating she was not fearful of him.

At trial, Sally retracted her recantations and maintained

that her original statements were true and that defendant violently

and repeatedly assaulted and raped her.

7 A-3515-15T1
 A jury trial took place over the course of seven days. The

State called seven witnesses, including Sally, Cathy, the nurse,

and the DNA expert. Defendant called as witnesses his niece, who

was a friend of Sally's, and his daughter. His niece testified

that any rips or tears in the futon existed prior to the assault

and that defendant was using a hammer in the upstairs bathroom to

put up fixtures the night of the assault.

II.

In defendant's first point, he argues that it was reversible

error for the trial court to admit Sally's out of court statements

to Cathy and the nurse pursuant to N.J.R.E. 803(a)(2). We

disagree. The statements were consistent with Sally's trial

testimony and introduced to rebut an express charge of recent

fabrication and improper motive.3

3
Defendant also asserts the trial court committed reversible
error in admitting Cathy's statements to the 911 operator as an
excited utterance pursuant to N.J.R.E. 803(c)(2). Sally's
statements to Cathy were made immediately after the sexual assault
and Cathy's call to 911 was made shortly after observing her
friend's physical condition and the severed phone line. Because
we have deemed Cathy’s statements admissible pursuant to N.J.R.E.
803(a)(2), we need not independently determine if Cathy had the
requisite state of mind for her statements to qualify as excited
utterances. See N.J.R.E. 805; see also State v. Hendricks, 759
S.E.2d 434, 437-39 (S.C. Ct. App. 2014) (analyzing "two levels of
hearsay" in a 911 recording where the victim made an excited
utterance to her mother and the mother repeated the victim's
statement, in addition to other statements aimed at incriminating
the defendant, to the 911 operator).

8 A-3515-15T1
 "[I]n reviewing a trial court's evidential ruling, an

appellate court is limited to examining the decision for abuse of

discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Under that standard,

substantial latitude is afforded to a trial court in deciding

whether to admit evidence, and "an appellate court should not

substitute its own judgment for that of the trial court, unless

'the trial court's ruling "was so wide of the mark that a manifest

denial of justice resulted."'" Id. at 385-86 (quoting State v.

Marrero, 148 N.J. 469, 484 (1997)).

Defendant challenges the introduction of Cathy's statement

on the 911 call that defendant "put his hands on [Sally]" and the

nurse's statements at trial that during her examination, Sally

told her "he tried to kill me" and her conversation with Sally

surrounding what Sally saw in the basement and details of the

assault. Defendant argues that N.J.R.E. 803(a)(2) is inapplicable

because he "never implicitly or explicitly implied that Sally's

allegations were a recent fabrication." Rather, it was defendant's

position that "[Sally] fabricated her story at the outset of this

matter, recanted and then readopted her original fabrication."

N.J.R.E. 803(a)(2) provides,

A statement previously made by a person who
is a witness at trial or hearing [is not
excluded by the hearsay rule], provided it

9 A-3515-15T1
 would have been admissible if made by the
declarant while testifying and the statement
. . . is consistent with the witness'
testimony and is offered to rebut an express
or implied charge against the witness of
recent fabrication or improper influence or
motive. . . .

"A 'charge' of recent fabrication can be effected through

implication by the cross-examiner as well as by direct accusation

of the witness. In fact that is the usual way in which the charge

is made." State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.

1989) (quoting State v. King, 115 N.J. Super. 140, 146-47 (App.

Div. 1971)). It is "the impression the cross-examiner makes upon

the jury in the heat of the trial rather than what an appellate

court would discern from a coldly analytical study of the testimony

which must control review of the somewhat discretionary exercise

of judgment made by the trial judge in the matter." State v.

Moorer, 448 N.J. Super. 94, 109 (App. Div. 2016) (quoting Johnson,

235 N.J. Super. at 555-56).

Defendant asserts that the court's ruling was erroneous

because without a legitimate recent fabrication basis, the

admitted hearsay statements improperly bolstered Sally's

testimony. Although "[a]n attack on a party's credibility through

prior inconsistent statements does not necessarily give [the

party] the right to use a prior consistent statement to buttress

the party's credibility," Palmisano v. Pear, 306 N.J. Super. 395,

10 A-3515-15T1
403 (App. Div. 1997), here, defense counsel attacked Sally's

credibility in his opening statement and sought to impeach her

trial testimony with her recantation statements to imply that her

recantations were accurate and that she recently fabricated a

different version of events when testifying at trial. See Johnson,

235 N.J. Super. at 555 (admitting a witness's prior statement

after "defense counsel highlighted several inconsistencies in

details between the prior statement and [the witness's] trial

testimony, thus creating the inference that [he] had not been

truthful at trial"). Also, on cross-examination, defense counsel

implied that Sally recently fabricated her trial testimony as he

questioned Sally about how she left her cell phone upstairs the

night of the assault even though she heard defendant say he was

going to rape her and highlighted the recantation letters,

emphasizing that Sally understood their contents, was not forced

to sign them, and presented them to a notary. Such fabrication

during trial or in preparation for trial is certainly "recent" in

common parlance. See King, 115 N.J. Super. at 146-47 (admitting

a witness's statement to police and grand jury testimony where

defense counsel alluded to the witness's threat a week before

trial that she would lie at trial).

Moreover, Sally's prior consistent statement to Cathy and the

nurse occurred prior to trial. "Where the prior consistent

11 A-3515-15T1
statement was made before the motive to fabricate arose, the

fabrication is 'recent' enough under N.J.R.E. 803(a)(2)." Moorer,

448 N.J. Super. at 110. "The scope of the exception encompasses

prior consistent statements made by the witness before the alleged

'improper influence or motive' to demonstrate that the witness did

not change his or her story." Neno v. Clinton, 167 N.J. 573, 580

(2001). Thus, "fabrication is 'recent' if it post-dates a prior

consistent statement." Moorer, 448 N.J. Super. at 110. A prior

consistent statement may have clear probative value:

Impeachment by charging that the testimony is
a recent fabrication or results from an
improper influence or motive is, as a general
matter, capable of direct and forceful
refutation through introduction of out-of-
court consistent statements that predate the
alleged fabrication, influence, or motive. A
consistent statement that predates the motive
is a square rebuttal of the charge that the
testimony was contrived as a consequence of
that motive.

[Id. at 111 (quoting Tome v. United States,
513 U.S. 150, 158 (1995)).]

Accordingly, it was not an abuse of discretion to admit

Sally's consistent statement to Cathy and the nurse to refute the

allegation of recent fabrication.

Second, both witnesses’ statements are admissible under the

alternative basis provided in the Rule to rebut the defendant's

claims that Sally had a motive to lie. That defense counsel

12 A-3515-15T1
challenged her motive for testifying is beyond dispute. Counsel

elicited during cross-examination that Sally was upset that he was

inappropriately speaking to other women, a fact she confirmed by

looking at his Facebook account. During his closing, counsel

stated: "[W]hat's her motive? The motive is clear as day. Get him

out of the house."4

III.

In defendant’s second point he contends for the first time

on appeal that the prosecutor committed misconduct during closing

arguments warranting reversal when he commented on the admitted

DNA evidence. Because there was no objection to the prosecutor's

statements, we review the issue for plain error. R. 2:10-2. In

other words, the alleged misconduct must have been clearly capable

of producing an unjust result. State v. Black, 380 N.J. Super.

581, 592 (App. Div. 2005). We conclude that the prosecutor's

comments were fair argument based on the DNA evidence properly

4
Moreover, the Supreme Court has declined to adopt as a rigid
admissibility requirement that previous consistent statements must
be made prior to the motive or influence to lie. State v. Chew,
150 N.J. 30, 81 (1997). Where "many things were happening as the
different stories unfolded" and "[t]here were shades of difference
between the witnesses' motivations at different times," the Court
upheld the admission of consistent statements made after some
motive to fabricate arose, but before other motives to fabricate
arose. Id. at 80.

13 A-3515-15T1
admitted at trial and do not warrant reversal of defendant's

convictions.

Defendant objects to the following comments made during the

prosecution's summation:

We do have the DNA in this case, and yes it
was not — it excluded the defendant as a
possible contributor to the semen found. He
was only inside of her five or six times, for
a couple of seconds, only because [Cathy]
interrupted him. That's why there's no
semen in the defendant. But what is there?
Found in the underwear sample taken from
[Sally's] underwear are his skin cells. That
part was glossed over. DNA matching his
profile for his skin cells was found in her
underwear that she was wearing that night,
even though they hadn't been intimate in
months.

The prosecutor continued by stating, "[a]ll of the evidence from

[Cathy], from the police, from the DNA, and doctors matched only

one conclusion that what [Sally] told you on the stand was exactly

what happened."

Prosecutors are afforded wide latitude during summations.

State v. R.B., 183 N.J. 308, 330 (2005). Yet, they must "confine

their comments to evidence revealed during the trial and reasonable

inferences to be drawn from that evidence." State v. Smith, 167

N.J. 158, 178 (2001). When considering claims of prosecutorial

misconduct, we must evaluate "whether a prosecutor committed

misconduct . . . [and, if so,] whether the prosecutor's misconduct

14 A-3515-15T1
constitutes grounds for a new trial." Id. at 181. Therefore,

where a prosecutor's comments may constitute misconduct, reversal

of a defendant's conviction is not justified unless the comments

were "so egregious that [they] deprived the defendant of a fair

trial." State v. McGuire, 419 N.J. Super. 88, 139 (App. Div.

2011) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).

In support of his misconduct claim, defendant relies on

numerous articles and expert testimony in other cases that

allegedly "prove that the presence of skin cells matching

defendant's DNA in Sally's underwear is virtually meaningless

because those cells would be ubiquitous in his home."5 Second,

defendant contends that any comment that epithelial DNA evidence

supported the State's claim that defendant sexually assaulted

Sally was unfounded and highly prejudicial because it was

unsupported by expert testimony to support that precise

proposition.

The prosecutor's comments were fair argument based on the

evidence admitted at trial. Defendant's arguments clearly address

5
Defendant relies on a series of law review articles and expert
opinions not presented to the trial court. There are at least two
problems with that "evidence." First, the material was not
presented to the trial court for consideration and, thus, it is
inappropriate for consideration on appeal. See Zaman v. Felton,
219 N.J. 199, 226-27 (2014). Second, both trial and appellate
courts cannot "fill in missing information on their own." N.J.
Div. of Child Prot. & Permanency v. A.L., 213 N.J. 1, 28 (2013).

15 A-3515-15T1
the weight of the evidence, not its admissibility. Even if we

were to accept the proposition that there was an abundance of

defendant's epithelial DNA in the home, fair comment on that

evidence was proper if for no other reason than defendant's skin

cells were found inside Sally's underwear despite the position

taken at trial that he did not sexually assault Sally and that

defendant and Sally had not been intimate in months.

Additionally, the prosecutor's comments were a fair response

to statements made during defense counsel's closing. See State

v. Smith, 212 N.J. 365, 403-04 (2012) (stating that, in determining

if a prosecutor engaged in misconduct, "an appellate court will

consider whether the offending remarks were prompted by comments

in the summation of defense counsel"). Ultimately, "it was for

the jury to decide whether to draw the inferences the prosecutor

urged." R.B., 183 N.J. at 330 (quoting State v. Carter, 91 N.J.

86, 125 (1982)).

In his summation, defense counsel repeatedly challenged

Sally's credibility by emphasizing the lack of physical evidence

corroborating her claim that defendant digitally penetrated her

vagina. He stated, the "State doesn't present to you demonstrative

evidence, firm evidence, clear evidence. They only wish you to

rely on a statement of a former girlfriend of [defendant]" and

that "any demonstrative evidence referenced to penetration or

16 A-3515-15T1
referenced to semen or referenced to anything that alleges a sexual

contact . . . [is] a falsehood." In light of those comments, and

the relevance and non-prejudicial nature of the evidence as it

related to the sexual assault, we conclude that none of the

prosecutor's remarks were "so egregious that [they] deprived the

defendant of a fair trial." McGuire, 419 N.J. Super. at 139.

IV.

In point three, defendant argues that the trial court's denial

of his motion to dismiss counts eight and nine for lack of

specificity as to the weapon purportedly used resulted in a fatally

flawed jury charge and verdict sheet that improperly used the

phrase "and/or," which allowed the jury to reach a non-unanimous

verdict.

The "decision whether to dismiss an indictment lies within

the discretion of the trial court and that exercise of

discretionary authority ordinarily will not be disturbed on appeal

unless it has been clearly abused." State v. Hogan, 144 N.J. 216,

229 (1996) (internal citation omitted). "An indictment should not

be dismissed unless it is manifestly deficient or palpably

defective." State v. Wein, 80 N.J. 491, 501 (1979).

In evaluating the sufficiency of an indictment, the

"fundamental inquiry is whether the indictment substantially

misleads or misinforms the accused as to the crime charged. The

17 A-3515-15T1
key is intelligibility." Id. at 497. The indictment must "charge

the defendant with the commission of a crime in reasonably

understandable language setting forth all of the critical facts

and each of the essential elements which constitute the offense

alleged." State v. Franklin, 184 N.J. 516, 534 (2005) (quoting

Wein, 80 N.J. at 497). The "clarity of expression" in a criminal

indictment is an "indispensable safeguard for the criminally

accused." Wein, 80 N.J. at 497.

We agree with the trial court that the indictment was not

deficient. Defendant knew precisely from that charging document

the factual predicate and legal basis supporting each count. The

language used was reasonably understandable. Defendant was aware

that the State maintained he committed a sexual and physical

assault using both a knife and hammer together or separately.

Although defendant did seek to dismiss counts eight and nine,

he never objected to the use of the phrase "and/or" in the jury

charge or the verdict sheet or asked for a specific unanimity

charge, accordingly, we review this issue for plain error. R.

2:10-2. While we conclude the preferred course would have been

for the trial court to separate the knife and hammer in the

instructions and verdict sheet, see State v. Gonzalez, 444 N.J.

Super. 62 (App. Div. 2016), we find no plain error under the unique

factual circumstances here because the jury made a specific finding

18 A-3515-15T1
in count six that defendant "purposely or knowingly cause[d] bodily

injury to [Sally] with a deadly weapon, specifically, a knife."

"[A]ppropriate and proper charges to a jury are essential for

a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (quoting

State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled

"an adequate instruction of the law." State v. Pleasant, 313 N.J.

Super. 325, 333 (App. Div. 1998).

To preserve an objection to a jury charge on appeal, a

defendant must object to the charge at trial. State v. Noble, 398

N.J. Super. 574, 593 (App. Div. 2008). "When counsel conceives

that a portion of the [jury] charge as given is inadequate or

inconclusive . . . it becomes his duty to alert the court in clear

language to the claimed inadequacy or error, stating his grounds

therefore." Nesta v. Meyer, 100 N.J. Super. 434, 444 (App. Div.

1968).

Where a "defendant did not object to the jury instructions

at trial, we must apply the plain error standard." State v. Burns,

192 N.J. 312, 341 (2007). See also R. 2:10-2. In the context of

a jury charge, plain error demands demonstration of "[l]egal

impropriety in the charge prejudicially affecting the substantial

rights of the defendant sufficiently grievous 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

19 A-3515-15T1
result." Burns, 192 N.J. at 341 (quoting State v. Jordan, 147

N.J. 409, 422 (1997)).

An "error in a jury instruction that is 'crucial to the jury's

deliberations on the guilt of a criminal defendant' is a 'poor

candidate[] for rehabilitation' under the plain error theory."

Ibid. (quoting Jordan, 147 N.J. at 422). Nevertheless, any such

error is to be considered "in light of 'the totality of the entire

charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187

N.J. 275, 289 (2006)). Moreover, "any alleged error also must be

evaluated in light 'of the overall strength of the State's case.'"

Ibid. (quoting Chapland, 187 N.J. at 289).

As to count eight, the trial court instructed that the "first

element that the State must prove beyond a reasonable doubt is

that there was a weapon." The trial court added that, while a

"knife or a hammer is not normally considered a weapon[,] [i]f,

however, the State establishes beyond a reasonable doubt that the

object is capable of being used to inflict serious bodily injury

or death, it may be considered a weapon." The trial court also

instructed that the State must prove that "the defendant possessed

the weapon alleged." In other words, the State must prove that the

defendant had a "knowing intentional control of that item

accompanied by a knowledge of its character." The verdict sheet

explained that count eight charged that defendant had "in his

20 A-3515-15T1
possession a weapon, specifically, a knife and/or hammer, with the

purpose to use it unlawfully against the person of another."

(emphasis added).

With respect to count nine, the trial court instructed the

jury that the State must prove beyond a reasonable doubt "[t]hat

there was a weapon, that . . . defendant possessed the weapon

knowingly, and that . . . defendant's possession of the weapon was

under circumstances not manifestly appropriate for a lawful use."

The trial court elaborated that a defendant "must know or be aware

that he possesses the item, here a knife and/or hammer, and he

must know what it is that he possesses or controls. In other

words, that it is a knife and/or a hammer. This possession cannot

merely be a passing control that is fleeting. . . ." (emphasis

added). On the verdict sheet, count nine is described as charging

the defendant with "knowingly hav[ing] in his possession a weapon,

specifically, a knife and/or hammer, under circumstances not

manifestly appropriate for such lawful uses it may have."

(emphasis added).

We conclude that this case represents the rare example where

the use of the phrase "and/or" did not result in an unjust verdict

for the simple reason that the jury convicted defendant on count

six of possessing a knife in connection with the sexual assault.

Consequently, he therefore also possessed that knife with the

21 A-3515-15T1
purpose to use it unlawfully against Sally in violation of N.J.S.A.

2C:39-4(d) (count eight), and had in his possession the knife

under circumstances not manifestly appropriate for its lawful use

in violation of N.J.S.A. 2C:39-5(d) (count nine).

We are mindful that a jury must reach a unanimous verdict in

a criminal case, and here the trial court so instructed the jury.

N.J. Const. art. I, ¶ 9; R. 1:8-9. "The notion of unanimity

requires 'jurors to be in substantial agreement as to just what a

defendant did' before determining his or her guilt or innocence."

State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States

v. Gipson, 553 F.2d 453, 457 (5th Cir. 1997)). Ordinarily, "a

general instruction on the requirement of unanimity suffices to

instruct the jury that it must be unanimous on whatever

specifications it finds to be the predicate of a guilty verdict."

State v. Parker, 124 N.J. 628, 641 (1991). "There may be

circumstances in which it appears that a genuine possibility of

jury confusion exists or that a conviction may occur as a result

of different jurors concluding that a defendant committed

conceptually distinct acts." Ibid.

Unanimity concerns exist even though N.J.S.A. 2C:39-4(d) and

N.J.S.A. 2C:39-5(d) proscribe possession of "any weapon" (except

a firearm) if used for the stated improper purposes. Here,

defendant claims that the jury charge and verdict sheets could

22 A-3515-15T1
have permitted a less than unanimous group of jurors to convict

defendant for possessing a hammer during the second stage of the

assault for an improper purpose while a separate group of jurors

convicted him based on the use of a knife. To resolve the issue,

we return again to the jury's finding on count six. There is but

one, and only one, conclusion to draw from that verdict – that the

jurors unanimously believed defendant possessed a knife for an

improper purpose. That verdict is sufficient to clarify any

ambiguity related to the jury's conviction on counts eight and

nine.

V.

Finally, we disagree with defendant’s claim that his sentence

was excessive and conclude that the trial court did not abuse its

discretion in finding defendant extended term eligible and in

evaluating the aggravating and mitigating factors.

Our review of sentencing determinations is limited and is

governed by the "clear abuse of discretion" standard. State v.

Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial

court's sentence, even if we would have reached a different result,

unless "(1) the sentencing guidelines were violated; (2) the

aggravating and mitigating factors found . . . were not based upon

competent and credible evidence in the record; or (3) 'the

application of the guidelines to the facts . . . makes the sentence

23 A-3515-15T1
clearly unreasonable so as to shock the judicial conscience.'"

State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J.

at 364-65). See also State v. O'Donnell, 117 N.J. 210, 215-16

(1989).

Aggravating factor one requires the judge to consider "[t]he

nature and circumstances of the offense, and the role of the actor

therein, including whether or not it was committed in an especially

heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1).

Aggravating factor two requires the judge to assess:

[t]he gravity and seriousness of harm
inflicted on the victim, including whether or
not the defendant knew or reasonably should
have known that the victim of the offense was
particularly vulnerable or incapable of
resistance due to advanced age, ill-health,
or extreme youth, or was for any other reason
substantially incapable of exercising normal
physical or mental power of resistance.

[N.J.S.A. 2C:44-1(a)(2).]

Defendant contends the sentencing court erred in finding

aggravating factors one and two because the trial court

impermissibly double-counted. We prohibit the use of "evidence

both for sentencing purpose and to establish an element of an

offense." State v. Kromphold, 162 N.J. 345, 353 (2000). In other

words, "sentencing courts must avoid double-counting any element

of an offense as an aggravating factor." State v. Lawless, 214

N.J. 594, 601 (2013). See also Fuentes, 217 N.J. at 75. Double-

24 A-3515-15T1
counting is prohibited based upon the fact that, under the criminal

code, the Legislature has "already considered the elements of an

offense in the gradation of a crime." Kromphold, 162 N.J. at

353. If we were to permit double-counting, "every offense arguably

would implicate aggravating factors merely by its commission,

thereby eroding the basis for the gradation of offenses and the

distinction between elements and aggravating

circumstances." Ibid.

The trial court's detailed oral decision expressly

acknowledged the proscription against double-counting and stated

that to the extent any of the facts relied on for sentencing

"support the elements of the offenses of which the defendant has

been convicted [he was] considering them only to the extent that

they exceed what is necessary to prove each element." Beyond the

use of the knife, the trial judge found that defendant committed

acts beyond those necessary to support the assault convictions and

also noted that defendant threatened Sally and that the children

were in the home during the incident. He concluded the

"circumstances rendered the victim particularly vulnerable and

less capable of resistance because she had to consider the well-

being of her children during the episode." Based on these

findings, which are amply supported by the record, we conclude

25 A-3515-15T1
that the trial court did not double-count and properly evaluated

aggravating factors one and two.

Further, the record supports the inapplicability of

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), because

defendant's children would not suffer excessive hardship due to

his incarceration. In fact, the record belies defendant's claim,

as his child support arrears were close to $75,000 at the time of

sentencing.

We similarly discern no abuse of the trial court's discretion

in determining that defendant was extended term eligible. The

trial judge reviewed the submissions of counsel and defendant's

presentence report that identified the prior convictions that

qualified him as a persistent offender. See N.J.S.A. 2C:44-3(a);

N.J.S.A. 2C:43-7(a); State v. Case, 220 N.J. 49, 65-66 (2014).

Defendant's final challenge to his sentence is based on the

trial court's reference to N.J.S.A. 2C:43-7(a)(1). When

discussing the appropriate extended term range, the trial judge

stated, "[f]or first degree aggravated sexual assault under 2C:43-

7(a)(1) the extended term range is 30 years to life. So, the

defendant is exposed to a term of incarceration from 10 years to

life." As the State concedes, the citation to N.J.S.A. 2C:43-

7(a)(1) was in error as that provision provides a thirty year to

life extended term for aggravated sexual assault committed upon a

26 A-3515-15T1
victim sixteen years old or younger, a circumstance not presented

here as Sally was over sixteen years old. The correct statutory

provision was N.J.S.A. 2C:43-7(a)(2) which provides for an

extended term of twenty years to life for defendant's conviction

on count two. According to defendant, "this error surely

influenced" the sentence imposed by trial court. We disagree

because as defendant acknowledges the applicable sentencing range

is the bottom of the ordinary term to the top of the extended

term. State v. Pierce, 188 N.J. 155, 171 (2006). Here, the trial

judge correctly stated the sentencing range – ten years to life.

Further, the trial judge's detailed findings, where he evaluated

and weighed the aggravating and mitigating factors, belie

defendant's unsupported speculation regarding any improper

influence on his sentencing decision.

Affirmed.

27 A-3515-15T1