STATE OF NEW JERSEY VS. DAVID RAMIREZ (16-04-0537, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4238-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID RAMIREZ,

Defendant-Appellant.
_______________________

Submitted November 14, 2019 – Decided February 27, 2020

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-04-
0537.

Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Gilbert Markarian, Assistant
Deputy Public Defender, of counsel and on the brief).

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David Michael
Liston, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant appeals from a March 19, 2018 judgment of conviction for

second-degree sexual assault, N.J.S.A. 2C:14-2(b) and second-degree

endangering, N.J.S.A. 2C:24-4(a)(1), after a jury trial.

Defendant raises the following arguments.

POINT I: THE ADMISSION OF REPETITIVE,
CORROBORATIVE HEARSAY STATEMENTS
PURSUANT TO THE TENDER-YEARS
EXCEPTION WAS UNDULY PREJUDICIAL AND
REQUIRES REVERSAL OF DEFENDANT'S
CONVICTIONS.

POINT 2: DEFENDANT WAS DEPRIVED OF A
FAIR TRIAL BY PERVASIVE MISCONDUCT IN
OPENING AND SUMMATION, WHEREBY THE
PROSECUTOR VOUCHED FOR THE CREDIBILITY
OF THE COMPLAINING WITNESS, ASKED
JURORS NOT TO HOLD INVESTIGATORS'
FAILURE TO SPEAK TO A KEY WITNESS
AGAINST THE COMPLAINING WITNESS, AND
OFFERED UNSUPPORTED TESTIMONY ABOUT
WHY OFFICERS FAILED TO PERFORM DNA
TESTING. (Partially raised below.)

A. The Prosecutor Encouraged the Jury to
Give Extra Weight to D.O.'s 1 Testimony by
Referring to Video Footage of Her Interview and
D.O.'s Trial Testimony as Two Separate
Witnesses, Vouching for Her Credibility, and
Repeatedly Stating that "No Reasonable Person"
Could Find She Was Not Credible.

1
We use initials to protect the identity of the child victim.
A-4238-17T4
2
 B. Referring to Investigators' Failure to Speak
to D.O.'s Sister, the Prosecutor Asked Jurors Not
to "Hold That Against" D.O. in Their Evaluation
of the Evidence.

C. The Prosecutor in Summation Improperly
Testified About Why Investigators Had Not
Attempted DNA Testing.

POINT 3: A REMAND FOR RESENTENCING IS
REQUIRED BECAUSE THE JUDGE DOUBLE-
COUNTED AND ERRED IN FINDING AND
WEIGHING AGGRAVATING AND MITIGATING
FACTORS.

We reject these arguments and affirm.

We glean the following facts from the record. On July 3, 2015, defendant

lived with then-eleven-year-old D.O., D.O.'s mother, and three-year-old I.R., the

daughter he shared with D.O.'s mother. Although D.O.'s mother was not married

to defendant, D.O. referred to him as her step-father. On that day, D.O.,

defendant, I.R., and D.O.'s mother were in the one-bedroom apartment they

shared. They had planned a family outing to an aquarium or waterpark, but

defendant told them they could not go.

While D.O.'s mother was washing clothes in the bathroom and I.R. was

sitting on the couch in the living room occupied with a game on her phone, D.O.

was sitting on the living room floor doing schoolwork on the coffee table in

front of the couch. When D.O. asked defendant for help, he sat behind her on

A-4238-17T4
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the couch and began massaging her shoulders, and then grabbed her breasts both

over and under her shirt. When defendant "ma[d]e his way towards" D.O .'s

pants, she stopped him. After D.O.'s mother came into the living room and saw

D.O. crying, she asked D.O. what was wrong, to which D.O. responded she was

having trouble with a math problem. D.O.'s mother noticed that the neck of

D.O.'s shirt was "stretched out." D.O.'s mother went into the kitchen, D.O.

followed her, and her mother asked her again what happened; D.O. then told her

that defendant touched her. D.O.'s mother confronted defendant, after which

defendant threatened to jump out the fourth-story window.

D.O., her mother, and I.R. then left the apartment, called the police, and

met them in the lobby. At police headquarters, D.O. reported defendant touched

her inappropriately on multiple occasions beginning earlier that year, usually at

home and while her mother and I.R. were in the apartment. On the prior

occasions, defendant touched D.O.'s breasts over and under her clothing after

coming up behind her while she was occupied with other tasks. D.O. stated she

did not tell her mother when this happened because her mother loved defendant

and D.O. did not want to see her mother hurt.

That same day, Detective Joseph Chesseri, who was trained in "Finding

Words," a protocol for interviewing children "in a non-leading, non-suggestive

A-4238-17T4
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way," was called in by Detective William Coleman from the Middlesex County

Prosecutor's Office to interview D.O. The interview with D.O. was video-

recorded. Defendant was subsequently indicted for second-degree sexual

assault and second-degree endangering the welfare of a child.

The prosecutor moved to admit the video-recording of the interview, as

well as D.O.'s mother's testimony about D.O.'s statements to her, under 1) the

fresh complaint exception to the hearsay rule, which allows out-of-court

statements by a sexual assault victim to show the victim did complain, and 2)

N.J.R.E. 803(c)(27), which allows out-of-court statements made by a child under

the age of twelve to be admitted in cases involving sexual misconduct against

that child.

After conducting a hearing, the trial judge granted the prosecutor's motion.

As to the fresh complaint exception to the hearsay rule for the statements D.O.

made to her mother, the trial judge considered the Hill and Bethune 2

requirements: 1) whether the victim's statement was made to a person she would

ordinarily turn to for support, 2) whether the statement was made within a

reasonable time after the alleged sexual assault, and 3) whether the statement

2
State v. Hill, 121 N.J. 150, 163, 167 (1990); see also State v. Bethune, 121
N.J. 137, 148-49 (1990).

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was made spontaneously and voluntarily. The trial judge also weighed the Hill

and Bethune3 factors to determine whether the statement was spontaneous and

voluntary: 1) the age of the victim, 2) the circumstances under which the

interrogation takes place, 3) the victim's relationship with the interrogator, 4)

who initiated the discussion, and 5) the type of questions asked.

The trial judge found the prosecutor met all the required criteria for

admitting the testimony of a fresh complaint witness in that it was "undeniably

clear" that D.O. revealed the sexual abuse to someone she would ordinarily turn

to for support – her mother. Although the trial judge noted there is no case law

"that strictly defines what constitutes a 'reasonable time'" after the abuse for

purposes of the fresh complaint rule, she found that the approximately twenty-

three minutes was reasonable, given defendant was sitting near D.O. the first

time D.O.'s mother questioned her, and D.O.'s ultimate revelation to her mother

occurred within a half hour. The trial judge further found the statement

voluntary and spontaneous in that D.O. went to her mother of her own accord

and told her mother about the assault after her mother asked an open -ended

question. Thus, having met all the requirements under Hill and Bethune, the

3
Id. at 168 (citing Bethune, 121 N.J. at 145).
A-4238-17T4
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trial judge found D.O.'s statements to her mother admissible under the fresh

complaint rule.

As to the admissibility of D.O.'s statements to her mother and the video-

recorded interview with Chesseri under the "tender years exception" to the

hearsay rule, N.J.R.E. 803(c)(27), the trial judge noted that because D.O. was

less than twelve years old at the time she made the statements to her mother and

Chesseri, and because the prosecutor put defendant on notice of his intention to

introduce the out-of-court statements and to call D.O. as a witness at trial, the

only issue for the trial judge to determine was "whether, based on the time,

content, and circumstances of D.O.'s statements, there is a probability that the

statements are trustworthy."

Citing State v. R.M., the trial judge considered the totality of the

circumstances surrounding the statements to determine their trustworthiness. 4

Considering the factors set out in Idaho v. Wright 497 U.S. 805, 821-22 (1990),

the trial judge found D.O.'s statements to her mother and Chesseri contained

significant indicia of reliability and were trustworthy and reliable. The trial

judge found D.O.'s mother's questions were not coercive, as D.O. voluntarily

followed her mother into the kitchen and told her mother about the incident in

4
State v. R.M., 245 N.J. Super. 504, 517-18 (App. Div. 1991).
A-4238-17T4
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response to the open-ended question of what was wrong. The trial judge noted

D.O.'s mother did not ask anything about defendant and whether he had touched

D.O. or otherwise mistreated her, and that further, D.O.'s description to her

mother of the way defendant touched her was consistent with D.O.'s later

description to Chesseri. The trial judge also found no evidence of, nor did

defense counsel assert, that D.O. had a preconceived aversion to defendant or a

motive to lie. The trial judge lastly found D.O.'s description of defendant's

touching used "words within the ken of the average child of her age" that belied

any suggestion D.O. was coached into her statement.

As to the video-recorded interview, the trial judge found Chesseri "was

careful to ask D.O. open-ended questions, to which D.O. gave age-appropriate,"

spontaneous, highly descriptive responses describing the incident, which were

consistent and used language one would expect of an eleven-year-old.

The trial judge found defense counsel's argument regarding D.O.'s

proximity in age to the cutoff age for the rule was meritless, as 803(c)(27) is a

"bright-line rule for admitting the statements of child victims who are under the

age of twelve." She further found Chesseri's role as an investigator did not

negate the reliability of D.O.'s statements, in that he asked predominately open-

ended questions in accordance with his training in the Finding Words program.

A-4238-17T4
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 Based on these findings, the trial judge found 1) D.O.'s statement to her

mother admissible under the fresh complaint exception to the bar against

hearsay, and 2) D.O.'s statements to her mother and Chesseri (in the video -

recorded interview) admissible under N.J.R.E. 803(c)(27), and granted the

prosecutor's motion. The same judge presided over a jury trial that began in

November 2017.

In his opening statement, the prosecutor referenced the evidence and

testimony the jury would hear during trial. When he spoke about the witnesses

the jury would see, he told them:

Obviously, you're going to hear from the people
who were involved. In a few moments, [D.O.] is going
to come in and tell you that she was abused by the
defendant. Her mother . . . will come in and talk about
what happened. . . .

....

You will . . . see and hear . . . the interview that
was conducted with [D.O.] back on July . . . 3[,] . . .
2015 at the Middlesex County Prosecutor's Office.

Now, in most instances . . . you don't see a
recorded interview of a witness. But the law does allow
in certain circumstances, this being one of them, that
the interview of a child under [twelve] is able to be
played because the law understands that as . . . children
grow, that time passes between the event and the day
that they come into court.

A-4238-17T4
9
 [Y]ou not only get [D.O.] as she is today. You
will be able to see and hear the child as she was on the
day that she revealed this to her mother and ultimately
to law enforcement.

So, in a sense, we have six witnesses, because
you'll see the [fourteen]-year-old [D.O.] of 2017 and
you'll see her as the [eleven]-year-old she was on July
3, 2015.

The prosecutor then told the jury that when they looked at defendant

the law says that you're looking at an innocent man.
And that only changes if the State is able to prove its
case beyond a reasonable doubt. . . .

....

We have to leave you firmly convinced. And in
our effort to do that, we are going to rely heavily, most
importantly, on the testimony of a [fourteen]-year-old
girl and her [eleven]-year-old self, as we said before, at
the time that all of this was revealed to . . . her mother
and to the police.

Defense counsel told the jury that while police officers would be

testifying,

you're not going to hear that there's any DNA evidence
in this case. And you're not going to hear that anybody
even tried to get any DNA evidence. You're going to
hear that no photographs were taken in this case of the
setup of the living room of the apartment and that no
one even tried to do that. . . .

That's what I expect you're going to hear. So,
what are you left with? What you're left with is two

A-4238-17T4
10
 people, [D.O.] and her mother, just what they said.
What . . . [D.O.] said happened, what [D.O.]'s mother
said that [D.O.] said happened, and you may hear what
[D.O.]'s mother says that [defendant] said.

So, that's just two people. And in holding the
State to its enormous responsibility to prove to you
beyond a reasonable doubt the charges in this case,
that's . . . all you've got is the two people.

At trial, D.O., testified as to the July 3 incident as well as to the prior

incidents. D.O.'s mother also testified as to the events of July 3. Officer

Coleman testified that as a detective with the juvenile bureau he was notified of

D.O. and her mother's transport to the station, and that because he was "not

forensically trained to speak with [eleven]-year-old victims . . . as procedure"

he notified the prosecutor's office to do the forensic interview. That was when

Chesseri was called in, as Coleman testified that where there is a victim less

than twelve years old, "I don't generally ask them questions because of their age.

It has to be done forensically."

Chesseri then testified as to his interview with D.O., stating the interview

room is "geared towards a set-up for children," that he "had been trained with

the forensic interviewing of children" in 2009 and 2014, and that he had

conducted those types of interviews in Hudson and Middlesex Counties over the

course of six years in the Special Victims Unit. Chesseri described the interview

A-4238-17T4
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process as "a non-leading, . . . non-suggestive . . . interviewing process to make

them comfortable in the setting," and that while there was a structure to it, when

a child began telling him what happened he would let them talk. The protocol

was to build rapport with the child, discuss the concept of telling the truth, have

the child name body parts using diagrams of males and females, and explore

details if the child made a disclosure. Chesseri testified there was no

requirement the interview result in a disclosure, but that D.O. did disclose during

her interview that defendant had touched her on her breasts under her clothing.

The trial judge then played the video-recorded interview for the jury. In

the video, Chesseri told D.O. she could say anything she wanted, that she was

not in trouble with him, but the "only rule that I have when you talk is that

everything that we talk about has to be the truth. And the truth is what really

happened, okay? Do you promise to tell me the truth?" D.O. responded in the

affirmative. He also told her it was important she correct him if he got

something wrong, and to stop him if she did not understand anything. After

discussing summer plans and books, Chesseri asked D.O. if she knew why she

was there, to which she responded "[b]ecause my step-dad tried to touch me."

After Chesseri stopped her to make sure they were on the same page with naming

body parts, D.O. told him, in response to Chesseri's questions, that defendant

A-4238-17T4
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touched her breasts, that he had done so before, that he tried to touch her genital

area but that she pushed him away, and that defendant had touched her breasts

on other occasions.

Defendant chose to exercise his right to remain silent. Defense moved for

acquittal on the evidence presented, submitting the evidence was insufficient as

a matter of law due to lack of any physical evidence and lack of any attempt to

obtain physical evidence. In denying the motion, the trial judge noted it was not

necessary the testimony be corroborated; that it would not be expected in this

matter to find physical evidence, as there was no penetration or kissing; and that

the word of the victim in this case was sufficient if the jury chose to believe her,

in that it was detailed, specific, and consistent with her mother's testimony and

her prior testimony.

During summation, the prosecutor told the jury he would "address . . .

testimony that you've heard that supports a conviction here. We will address

hopefully all the things that [defense counsel] asked you to consider because

most of the things that she has asked you to consider you should consider and

reject almost immediately." The prosecutor noted that while at the outset the

jurors all took a neutral position as to whether they thought a child was more or

less likely to be honest when testifying

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now, at the end of the case, [w]e're asking that question
about the credibility of . . . this specific child, [D.O.]
. . . the [fourteen]-year-old [D.O.] who came in here
yesterday and took an oath on the Bible and made a
promise to tell the truth. . . . But beyond that, we're
asking did [eleven]-year-old [D.O.], when she finally
disclosed to her mother what the defendant had been
doing to her, was she telling the truth then? Because
that was another instance where she told somebody
what was happening to her. Later that same day, going
back two years, the [eleven]-year old [D.O.] told . . .
Chesseri . . . this is what has been going on . . . [w]as
she telling the truth then? . . . Now we are focused on
one child who I think you've had an opportunity to look
at and listen to both in person and on video.

I start with that point . . . because credibility is
really the central issue . . . of your deliberations here.
Because if the facts in the case are determined to be
true, then no reasonable person is going to say even
though . . . an adult male touched the breasts of an
[eleven]-year-old, I don't think that's a crime because
that's not sexual assault. . . . [N]o reasonable person is
going to say that even though I believe everything
[D.O.] said, I don't believe that her morals were
endangered . . . .

....

So, central, important question is [D.O.] being
honest? . . . Truthful testimony, by nature, by
definition, is limited testimony . . . [b]ecause if you're
committed to telling the truth, you're . . . limited by
reality. That's not true when you're lying . . . if [lying
is] your intention, you're not bound by anything . . .
when you say something like he touched my breasts and
then he moved towards my pants but he didn't pull
[them] down, well, if you're lying about that, if you

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14
 wanted to create the misimpression that this person was
. . . committing a terrible sexual assault, there's nothing
to stop you from saying, you know, he got his hands in
my pants . . . that's not to diminish what [D.O.] actually
said. The point is she actually could have said a lot
more in the effort to lie if that's what she was doing.

If you take the oath seriously . . . you're not going
to say things that didn't happen even if it doesn't
necessarily help your cause . . . the defense is saying
she's not telling the truth.

In response to defense counsel's assertion that D.O. was angry with

defendant because he told her they could not go to an aquarium or water park,

the prosecutor told the jury

do you honestly think that she would say these things
against this man simply because she wasn't able to go
on a summer outing? . . . No reasonable person is going
to see that in her. You didn't see it yesterday when she
testified. You didn't see it in the video when she told
[]Chesseri . . . [defendant] said no. The tone of voice
that she used, there was no anger in it. There was no
frustration in it. She said matter-of-factly like it's just
something that happened . . . [d]oes anyone honestly
think that even if she was upset about [defendant] . . .
ruining the plans . . . she would keep that anger for two
years and . . . continue the same lie about it? . . . [I]n
assessing the credibility of the witness, [D.O.], a
reasonable person can't find any motivation for her to
say these things unless they are actually true.

As to defense counsel pointing out that no one took photos of the couch

or the apartment, the prosecutor remarked

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15
 [i]f a juror, in this case, needed a photograph of a sofa
to make a determination about this girl's inherent
credibility, then I'd suggest to you that you're not a
reasonable person . . . [the lack of photographs] is really
an inconsequential or unimportant point.

In response to defense counsel's assertion there was a discrepancy between

D.O.'s video-recorded testimony and trial testimony, the prosecutor told the jury

[t]he [S]tate would characterize it as a very truthful and
descriptive piece of testimony. Now, she forgot about
the fact that after [defendant] touched her breasts, he
got up . . . left the room . . . came back . . . once it was
brought to her attention, she acknowledged [it] . . .
[t]hat's what an honest person does, isn't it?

The prosecutor again noted that D.O.'s testimony was

always consistent . . . [s]he never once said he touched
anywhere else . . . [a]nd she could have . . . [i]f you are
lying . . . you are not bound to the truth . . . you can say
anything . . . [t]here's nothing to stop her from saying
that he touched my vagina . . . [b]ut she didn't say that
because it didn't happen . . . [t]he reason why she didn't
is knowable; it's clear; it's obvious. She didn't say that
because it didn't happen. What she's telling you, what
she's been saying all along . . . is the truth.

Finally, the prosecutor told the jury

[t]he ultimate question here . . . is did [D.O.] tell the
truth . . . [t]he only reasonable answer to that question,
the only reasonable conclusion that can be drawn from
that testimony is yes, she did . . . if she was telling the
truth yesterday, then there is no reason to doubt her
back on July 3 . . ., 2015.

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 At that point, defense counsel objected, arguing the prosecutor's remarks

about D.O. constituted vouching for her credibility. The prosecutor then

finished summation by stating "[t]he only conclusion that can be drawn by a

reasonable person based upon what [D.O.] said in court and back when she

disclosed what happened to her, [is] that she was telling the truth. And because

she's telling the truth, the defendant is guilty of the crimes [for which he has

been] indicted."

The trial judge instructed the jury, including the fresh complaint jury

instruction, and the jury found defendant guilty on both counts. The pre -

sentence report (PSR) noted that defendant underwent an evaluation at the

Avenel Diagnostic Treatment Center (Avenel). The evaluation found

defendant's

behavior meets the criteria for repetition but not for
compulsion . . . there are several sexually abusive acts
on several occasions, which provides clear evidence of
repetition. . . .

At sentencing, defense counsel asked the trial judge to find mitigating

factor seven, as defendant had no prior criminal offenses. The prosecutor argued

for aggravating factor nine, both specific and general deterrence, as well as

aggravating factor three, the risk that defendant will commit another offense.

After considering the PSR, the letters defendant submitted in support of his

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character, and the arguments by defense counsel and the prosecutor, the trial

judge found aggravating factor three, the risk defendant will commit another

offense "given that this was not an isolated incident . . . and [the Avenel

evaluator] found [defendant's] conduct is repetitive." She went on to state that

she found "a very strong factor [nine], the need to deter the defendant and others

from violating the law. This [c]ourt and society take sexual offenses against

children very seriously. And I send a strong message to this defendant and

others that there are serious consequences for such behavior." The trial judge

did find mitigating factor seven, but found the aggravating factors outweighed

the mitigating. Defendant was sentenced to seven years subject to the No Early

Release Act, for count one, and to a five-year concurrent sentence for count two.

Defendant was also subject to conditions of: parole supervision for life;

reporting and registration conditions of Megan's Law; and was to have no

contact with the victim or her mother.

I.

We reject defendant's argument that in the absence of any physical or

forensic evidence, confession, or other eyewitness testimony, "[t]he repeated

admission of D.O.'s allegations in different formats was unnecessary,

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cumulative, and unduly prejudicial" under N.J.R.E. 403 and denied defendant a

fair trial under both the United States and New Jersey Constitutions.

A trial judge has "broad discretion in determining whether or not to admit

evidence alleged to be relevant and has, as well, broad discretion in determining

that even relevant evidence should be excluded if its probative value is

outweighed by undue prejudice or undue delay." State v. E.B., 348 N.J. Super.

336, 344 (App. Div. 2002) (citing N.J.R.E. 403). Therefore, the trial judge's

evidence ruling is "entitled to deference unless it is a clear error of judgment or

so wide of the mark that a manifest denial of justice results." Ibid. N.J.R.E. 403

permits the exclusion of relevant evidence "if its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading

the jury or (b) undue delay, waste of time, or needless presentation of cumulative

evidence." The presumption is that relevant evidence will be admitted, and for

relevant evidence to be properly excluded, "factors favoring exclusion must

substantially outweigh the probative value of the contested evidence." E.B., 348

N.J. Super. at 345.

Under the fresh complaint exception to the rule against hearsay, an out -

of-court statement by a sexual assault victim is permitted for the purpose of

"negat[ing] any inference that because the victim had failed to tell anyone that

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she had been [sexually assaulted], her later assertion of [sexual assault] could

not be believed." State v. Hill, 121 N.J. 150, 159 (1990) (citation omitted).

However, to prevent undue prejudice against the defendant, a fresh complaint

statement must have been made within a reasonable time after the assault and

must have been spontaneous and voluntary. Id. at 163 (first citing State v.

Tirone, 64 N.J. 222, 226-27 (1974); and then citing State v. Balles, 47 N.J. 331,

338-39 (1966)). The statement must also have been made to a person the victim

would ordinarily turn to for support. State v. R.K., 220 N.J. 444, 455 (2015)

(citations omitted). Because the New Jersey Supreme Court has recognized a

child may be too frightened or embarrassed to talk about sexual abuse they have

experienced, "[t]hese requirements are relaxed when they are applied to juvenile

victims," to allow them additional time to complain. Ibid. (citation omitted).

In cases involving children, statements made in response to a "yes or no"

question are not permitted, State v. Bethune, 121 N.J. 137, 145 (1990), but

"general, non-coercive questions do not rob a complaint of its admissibility

under the fresh-complaint rule," id. at 144 (citations omitted). It is the trial

court's role to determine the degree of coercion involved and whether the

statement was spontaneous or made directly in response to interrogation, and

the court must make its determinations by considering the age of the child, the

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child's relationship with the interviewer, the circumstances surrounding the

questioning, whether the child initiated the discussion, whether the questions

were leading, and the specificity of the questions as it relates to the alleged

abuser and alleged acts. Id. at 145. When a fresh complaint statement is found

admissible, it is so only for the purpose of proving the victim complained, not

to corroborate details of the testimony, id. at 146, and jury instructions should

be given to inform jurors the purpose of the fresh complaint is to neutralize the

inference that the alleged victim's behavior was not consistent with a sexual

abuse claim, id. at 147-48. "Only the facts that are minimally necessary to

identify the subject matter of the complaint should be admitted." R.K., 220 N.J.

at 456.

Here, D.O. made the fresh complaint statement to her mother, with whom

she had a close relationship, within the half hour, in response to her mother' s

general question asking why D.O. was crying, which is proper under Bethune.

The trial judge considered these factors when she made her determination that

the fresh complaint statement was admissible, and thus did not abuse her

discretion when admitting D.O.'s mother's testimony as to D.O.'s out-of-court

statements, under the fresh complaint exception, to show D.O. did complain to

someone soon after the incident.

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 The "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), was

created when the New Jersey Supreme Court recognized the "difficult problems

of proof" regarding child-victim testimony in sexual abuse prosecutions, where

the victim's testimony "is often the indispensable element of the prosecution's

case." State v. Smith, 158 N.J. 376, 388-89 (1999) (quoting State v. D.R., 109

N.J. 348, 358 (1988)). Under N.J.R.E. 803(c)(27), a video-recorded interview

of a child may be admitted on a hearing and preliminary finding that the "out -

of-court statement is sufficiently reliable based on the time, content and

circumstances of the statement." See id. at 389 (quoting State v. D.G., 157 N.J.

112, 128 (1999)).

Here, there was a hearing to determine the reliability of the video-recorded

interview before it was admitted, as required by Smith and D.G. The interview

happened the same day as the incident, Chesseri asked open-ended questions

and did not attempt to elicit specific information from D.O., as he was trained

to do using the Finding Words protocol, and D.O.'s statements in the video -

recording were consistent with her statements to her mother. The questioning

was not incessant nor leading, nor were there any suspect gaps in time. Further,

rather than having a clear motive to fabricate the allegations, D.O. made the

allegations against defendant despite her fear that her mother would be hurt.

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The trial judge considered all these factors in making her determination the

video-recording was admissible. Therefore, there is no indication the trial judge

abused her discretion in finding the video-recording reliable and admissible

under 803(c)(27) to provide evidence of D.O.'s account of events close -in-time

to the incident, which is the purpose of the exception.

To address a defendant's constitutional rights of confrontation and cross -

examination that are "so essential to the jury's duty to assess the credibility of

witnesses," the New Jersey Supreme Court found that combining the

admissibility of out-of-court statements under N.J.R.E. 803(c)(27) with the

requirement that the under-age-twelve victim, "if available, testify at trial . . .

will afford the jury an opportunity to evaluate the testimony relating t he child's

out-of-court statements in the context of the child's communicative skills,

demeanor, and credibility as a witness at trial. It also affords the defendant a

right of cross-examination and limited confrontation." D.R., 109 N.J. at 369-

70.

Here, D.O. did testify and was subject to confrontation and cross-

examination, so the jury was able to assess her credibility in person. Her in -

court testimony fulfilled defendant's constitutional entitlement to confrontation

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and cross-examination, and the trial judge did not abuse her discretion in

admitting both the video-recorded interview and D.O.'s testimony.

Therefore, the trial judge did not abuse her discretion in admitting the

three pieces of corroborative evidence. The evidence was not cumulative, as

each piece of evidence was relevant for a different purpose, and the probative

value was not outweighed by prejudice to defendant.

II.

Defendant argues the statements of the prosecutor during both his opening

statement and his summation constituted misconduct. We disagree.

"When a defendant fails to object to an error or raise an issue before the

trial court, we review for plain error. We may reverse on the basis of

unchallenged error only if the error was 'clearly capable of producing an unjus t

result.'" State v. Ross, 229 N.J. 389, 407 (2017) (quoting R. 2:10-2). To warrant

a new trial for prosecutor misconduct, the prosecutor's conduct "must have been

'clearly and unmistakably improper,' and must have substantially prejudiced

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.

Timmendequas, 161 N.J. 515, 575 (1999)).

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 Defendant asserts the prosecutor bolstered D.O.'s testimony in his opening

when he told the jury they "in a sense" would hear from "six witnesses. . . ."

Defendant asserts this unfairly emphasized D.O.'s on-camera testimony and

went beyond the scope of what is permissible in openings – which should be

"limited to the 'facts he intends in good faith to prove by competent evidence'"

under State v. Wakefield, 190 N.J. 397, 442 (2007) (quoting State v. Hipplewith,

33 N.J. 300, 309 (1960)). This argument was not raised below, so it is reviewed

for plain error.

An opening statement's purpose is to generally inform the jury of the

"nature of the action and the basic factual hypothesis projected, so that they may

be better prepared to understand the evidence." State v. Tilghman, 385 N.J.

Super. 45, 55 (App. Div. 2006) (quoting Passaic Valley Sewerage Comm'rs v

Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)). An opening statement

cannot be argumentative or include issues or facts not legally admissible or able

to be factually proven. Id. at 55-56.

Here, the prosecutor's opening included a list of witnesses the jury would

see, including D.O., her mother, and the three detectives, and then told the jury

they would see the video-recorded interview, which "in most instances . . . you

don't see a recorded interview of a witness." He explained why it was permitted

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in this case, making the statement that "in a sense, we have six witnesses,

because you'll see the [fourteen]-year-old [D.O.] of 2017 and you'll see her as

the [eleven]-year-old she was [on the date of the incident]." The statement

generally informed the jury of the testimony so they would "be better prepared

to understand the evidence," which is proper under Tilghman.

During summation, defendant objected to the prosecutor's assertions of

D.O.'s credibility; however, when asked by the judge what relief was requested,

defense counsel declined to ask for any. A prosecutor is not permitted in

summation to bolster a witness's credibility with statements not based in

evidence on the record, such as telling a jury a police officer "would not lie

because of the 'magnitude' of charges that could be brought against them," or

that police testimony should be accepted "not because of its believability but

because the witnesses were policemen." State v. Frost, 158 N.J. 76, 85-86

(1999) (citations omitted). Rather, the prosecutor must "confine [his or her]

comments to evidence revealed during the trial and reasonable inferences to be

drawn from that evidence." State v. Bradshaw, 195 N.J. 493, 510 (2008)

(alteration in original) (quoting Smith, 167 N.J. at 178).

And while the prosecutor should not vouch for a witness's credibility,

"[s]o long as the prosecutor's comments are based on the evidence in the case

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and the reasonable inferences from that evidence, the prosecutor's comments

'will afford no ground for reversal.'" Ibid. (quoting State v. Johnson, 31 N.J.

489, 510 (1960)). The prosecutor "may argue that a witness is credible, so long

as the prosecutor does not personally vouch for the witness or refer to matters

outside the record as support for the witness's credibility." State v. Walden, 370

N.J. Super. 549, 560 (App. Div. 2004) (citing State v. Scherzer, 301 N.J. Super.

363, 445 (App. Div. 1997)).

Defendant argues that in summation, the prosecutor improperly bolstered

D.O.'s credibility, which was the central issue in the case, to make up for

"deficiencies" of lack of DNA evidence, lack of photographs of the location of

the incident, and failure to interview I.R., who was present at the time of the

incident. Defendant contends the proffered argument that if D.O. were lying she

would say defendant did more egregious acts "suggested that the prosecutor,

because of his experience in litigating similar cases, knew certain hallmarks of

credible testimony" and that the prosecutor's remarks that he would

"characterize D.O.'s testimony as a very truthful and descriptive piece of

testimony" was a personal assessment of D.O.'s credibility and "was

accompanied by persistent comments instructing the jury that a 'reasonable

person' could only conclude that D.O. had testified truthfully."

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 However, the statements, read in context, show that the prosecutor was

responding to defense counsel's assertion that there was a discrepancy between

D.O.'s video-recorded testimony and her trial testimony as to whether defendant

left the room at some point. The prosecutor said he would characterize D.O.'s

testimony as truthful and then pointed to D.O.'s testimony, contained in the

record, where she corrected her account when defense counsel reminded her of

her prior testimony. The prosecutor went on to note that D.O.'s testimony was

consistent and that D.O. never said defendant touched her anywhere else, both

things the jury could see and hear for themselves from the testimony on the

record. The prosecutor noted that if someone is lying they are not bound to the

truth and can say anything, pointed out what was not said by D.O. in her

testimony, which the jury themselves could see and hear for themselves, and

which defense counsel also brought up in her summation to cast doubt on D.O.'s

allegations, and implied that it could be inferred that what D.O. did not say in

her testimony indicated she was credible.

Arguing for a witness's credibility is permitted by Walden and Bradshaw,

and the prosecutor did not inappropriately offer his personal opinion that D.O.

was honest and would not lie, or that he felt defendant was guilty based on

reasons not contained in the record. Therefore, the prosecutor did not engage in

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misconduct in his summation, as his statements were all based on testimony

contained in the record and reasonable inferences that could be made therefrom.

Defendant's additional assertions that prosecutorial conduct was capable

of producing an unjust error warranting reversal under Rule 2:10-2 are without

merit and not worthy of additional discussion in a written opinion. R. 2:11-

3(e)(2).

III.

Finally, a remand for resentencing is not required because the judge did

not double count and did not err in finding and weighing aggravating and

mitigating factors. In reviewing a trial judge's sentencing decision, we

determine "whether the aggravating and mitigating factors found . . . were based

upon competent, credible evidence in the record." State v. Yarbough, 195 N.J.

Super. 135, 140 (App. Div. 1984). We apply a deferential standard of review

unless the trial judge fails to identify relevant aggravating and mitigating

factors; merely enumerates them; forgoes a qualitative analysis; or provides

little insight into the decision. State v. Case, 220 N.J. 49, 65 (2014). Based on

our review of the record, the trial judge's findings are adequately supported.

Affirmed.

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