STATE OF NEW JERSEY VS. J.A.W. (16-11-3281, 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NOT FOR PUBLICATION WITHOUT THE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-5255-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.A.W.,1

Defendant-Appellant.
________________________

Submitted October 19, 2020 – Decided November 12, 2020

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-11-3281.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michael A. Priarone, Designated Counsel,
on the brief).

Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Maura Murphy Sullivan,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

1
To protect the privacy of the victim and other individuals who testified at trial,
we use initials instead of proper names. See R. 1:38-3(c)(9).
PER CURIAM

Defendant J.A.W. appeals from an April 19, 2018 judgment of conviction

on nine counts involving sexual offenses committed against a minor. Defendant

challenges various evidentiary rulings before and during the trial. He also

challenges denial of several motions. Among his contentions related to the

sentence imposed, defendant contends the judge denied him the opportunity to

speak at sentencing in accordance with Rule 3:21-4(b). We affirm as to

defendant's challenges on appeal except to remand for resentencing, allowing

defendant the opportunity to allocute prior to imposing the sentence.

The following facts are derived from the trial testimony. In 2008,

defendant lived with his wife, T.W. 2 At that time, T.W.'s then thirteen-year old

brother, T.S., lived with his mother near the home of defendant and T.W.

Because the victim's biological father was absent from his life, T.S. regarded

defendant as a father figure.

From September 2008 through June 2009, T.S. often visited his sister's

home and to "hang out" with defendant and play video games. It was during

2
Throughout this opinion, we use "T.S." to refer to the victim; "T.W." to refer
to the victim's sister and defendant's wife; "M.B." to refer to the "fresh
complaint" witness and the victim's friend; and "M.L." to refer to defendant's
former employer.
A-5255-17T4
2
this time period that defendant showed pornography to T.S. and discussed sex

with him. Defendant asked the victim if he "liked what [he] saw," and if T.S.

would engage in any of the depicted sexual acts with defendant.

During those ten months, T.S. performed fellatio on defendant

approximately twenty times. Defendant also attempted to penetrate the victim's

anus with his penis twice but T.S. "stopped it." At some point, T.S. stated he no

longer wanted to engage in sexual activities with defendant. T.S. "felt . . . [he]

wasn't able to live the life that [he] should have lived at that age. And [he]

wanted to hang out with [his] friends more, and [he] wanted to just be a kid."

Subsequent to defendant's sexual assaults of the victim, T.S. moved from

South Jersey to Philadelphia. T.S. never disclosed defendant's sexual assaults

until he was twenty-years old. In the spring of 2015, T.S. told his close friend,

M.B., about defendant's sexual assaults when T.S. was thirteen years old. M.B.

was "shocked" to learn of defendant sexually assaulting T.S. and expressed

support for his long-time friend. According to T.S., he did not intend to disclose

defendant's sexual assaults, but it "just . . . came out" while T.S. was talking to

M.B.

After he told M.B. about defendant's sexual assaults, T.S. also disclosed

the information to his mother and sisters, including defendant's wife. When

A-5255-17T4
3
defendant learned T.S. intended to report the sexual assaults to the police,

defendant text messaged T.S. and asked if T.S. would speak to him. T.S. agreed

to speak with defendant the next day. Defendant then texted the following to

T.S.:

I'm very sorry, [T.S.]. I was very wrong. I will seek
help . . . . I just want everyone to suffer [sic] because I
made bad decisions. Again, I'm sorry. I wish I could
change it. I wasn't thinking of how that would have
affected you. [T.S.], I'm begging for your forgiveness.
What I did was wrong. I never meant to hurt you. I
need to take care of [T.W. and children], and I can't do
that behind bars.

I have no excuse for what I've done to you, and if I
could rewind I would. I understand why you came
forward with all this[.] Trying to protect people you
love from me is very courageous. I promise you I will
seek help and never do anything like that again. I didn't
think I was harming you when it was happening. I was
wrong. I'm very sorry.

On the morning of April 3, 2015, T.S. gave a statement to the police, and

the police took defendant into custody that afternoon.

Prior to being arrested, defendant contacted his then-employer, M.L. In a

text message, defendant told M.L. he would likely be arrested, and asked if M.L.

would provide bail money. M.L. asked defendant to telephone him. When the

two spoke on the telephone, defendant explained "he was abused as a child and

A-5255-17T4
4
[did] the same" to a family member. M.L. declined to assist defendant and

immediately terminated defendant's employment.

According to T.W., defendant had a close relationship with T.S. and

served as a father figure to him. T.S. was frequently at their house, and

defendant would take care of T.S. when T.W. or her mother were not home.

T.W. learned about defendant sexually assaulting T.S. from her mother. When

T.W. confronted defendant, he admitted the allegations were true. Defendant

told T.W. "he had [T.S.] give him a blow job . . . a few times" and tried anal sex.

T.W. said defendant left his cell phone at the house on the day of his arrest.

Initially, T.W. testified she did not use defendant's cell phone that day.

However, when the State recalled T.W. to the stand during the trial, she testified

she may have used defendant's phone while he was in custody. T.W. explained

she was uncertain whether she used defendant's cell phone that day because she

was in a state of panic and seeking legal counsel for defendant.

Detective Christopher Robinson of the Camden County Prosecutor's

Office, an investigator with the High-Tech Crimes Unit, specialized in

forensically extracting data from cell phones. Detective Robinson reviewed the

web browsing history and text messages on defendant's cell phone. A search of

defendant's cell phone revealed text messages between defendant and T.S. and

A-5255-17T4
5
between defendant and M.L. In addition, the detective found hundreds of visits

to pornographic websites between January and April 2015. Defendant's cell

phone also revealed searches for "New Jersey state prison," "[c]hild molester

jail time," "[n]on-aggravated child molester jail time," and "New Jersey child

molester plea deal." These searches were conducted on the day of defendant's

arrest. Many of the searches were during the evening hours when defendant was

without his phone and in police custody. Detective Robinson explained he used

an older version of the data extraction software, which ran on universal

coordinated time. Thus, when he examined defendant's cell phone, to reflect the

real time of the searches and text messages, the detective had to subtract four

hours.

A Camden County grand jury indicted defendant on charges of first-

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

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); four counts

of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1)

(counts three, six, eight, and ten); second-degree attempted aggravated sexual

assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(a)(2)(a) (count four); third-degree

attempted sexual assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(c)(4) (count five);

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

A-5255-17T4
6
seven); and third-degree obscenity for persons under age eighteen, N.J.S.A.

2C:34-(b)(2) (count nine).

Prior to trial, the State announced its intent to present "fresh complaint"

testimony from M.B., the victim's friend. Defendant moved to exclude such

testimony, which the pretrial judge denied in an April 13, 2017 order.

Before jury selection, on November 15, 2017, the trial judge granted the

State's motion to dismiss count nine, the third-degree obscenity charge, as barred

by the statute of limitations. In addition, the judge denied defendant's motion

to dismiss count four, second-degree attempted aggravated assault, and count

five, third-degree attempted sexual assault, deeming those charges were not

time-barred.

During the trial, the jury heard testimony from the victim; as well as M.B.,

in whom T.S. confided; M.L., defendant's former employer; T.W., defendant's

wife and T.S.'s sister; and Detective Robinson.

The State rested on November 16, 2017. However, the next day, the trial

judge allowed the State to reopen the matter to elicit further testimony from

defendant's wife and the detective who extracted data from defendant's cell

phone.

A-5255-17T4
7
 After the State again rested on November 17, 2017, defendant moved for

a judgment of acquittal on all counts, which the judge denied. After denial of

that motion, the defense rested without calling any witnesses. The trial then

recessed for the Thanksgiving holiday. When trial resumed on November 28,

2017, the parties gave closing arguments and the judge instructed the jury. On

November 29, 2017, the jury returned a unanimous guilty verdict on all

remaining count.

The trial judge read his sentencing decision into the record on March 16,

2018. The judge sentenced defendant as follows: sixteen years subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one for aggravated

sexual assault, consecutive to counts three and four; eight years on count three

for endangering the welfare of a child, consecutive to counts one and four; eight

years subject to NERA, on count four for attempted aggravated sexual assault,

consecutive to counts one and three; eight years on count six for endangering

the welfare of a child, concurrent to the other counts; eight years on count eight

for endangering the welfare of a child, concurrent to the other counts; and eight

years on count nine for endangering the welfare of a child, concurrent to the

other counts. Defendant's aggregate sentence was thirty-two years in prison

with a parole ineligibility period of twenty years, four months, and one day.

A-5255-17T4
8
On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN ADMITTING THE
"FRESH COMPLAINT" TESTIMONY OF [M.B.]
AND IN FAILING TO GIVE A CURATIVE
INSTRUCTION AFTER [M.B.] TESTIFIED AS TO
GRAPHIC AND INCORRECT DETAILS OF [T.S.]'S
COMPLAINT.

POINT II

THE TRIAL COURT ERRED IN PERMITTING THE
STATE TO REOPEN THEIR CASE FOR THE
PURPOSE OF RECALLING [T.W.] TO CHANGE
HER EARLIER TESTIMONY THAT SHE HAD NOT
USED DEFENDANT'S PHONE ON THE DAY OF
HIS ARREST AND IN REFUSING [DEFENDANT'S]
REQUEST TO INCLUDE IN ITS INSTRUCTIONS
TO THE JURY THE "FALSE IN ONE, FALSE IN
ALL" CHARGE.

POINT III

DEFENDANT'S MOTION TO DISMISS COUNTS
[FOUR] AND [FIVE], CHARGING ATTEMPTED
AGGRAVATED SEXUAL ASSAULT AND
ATTEMPTED SEXUAL ASSAULT, AS BARRED BY
THE STATUTE OF LIMITATIONS WAS
ERRONEOUSLY DENIED BY THE TRIAL COURT.

POINT IV

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR A JUDGMENT OF
ACQUITTAL ON THE SECOND[-]DEGREE

A-5255-17T4
9
 ENDANGERING CHARGES IN COUNTS THREE,
SIX, EIGHT AND TEN BECAUSE THERE WAS
INSUFFICIENT EVIDENCE ADDUCED BY THE
STATE THAT THE DEFENDANT HAD A "LEGAL
DUTY" TO CARE FOR [T.S.] OR HAD "ASSUMED
RESPONSIBILITY FOR THE CARE OF A CHILD"
AS REQUIRED BY N.J.S.A. 2C:24-4A(1).

POINT V

THE CONVICTIONS ON THE ENDANGERING
COUNTS MUST BE VACATED AS THERE IS NO
SPECIFIC CONDUCT ALLEGED AS
CONSTITUTING THE PREDICATE CONDUCT OF
THE OFFENSE IN ALL OF THOSE COUNTS
WHICH ARE IDENTICAL IN THEIR WORDING
AND IN THE INTERROGATORY SUBMITTED TO
THE JURY.

POINT VI

CUMULATIVE ERROR DEPRIVED DEFENDANT
OF A FAIR TRIAL AND REQUIRES THAT
DEFENDANT'S CONVICTION AND SENTENCE BE
REVERSED.

POINT VII

DEFENDANT'S SENTENCE IS EXCESSIVE AND
ILLEGAL BECAUSE THE TRIAL COURT WAS
MISTAKEN REGARDING THE PAROLE
CONSEQUENCES OF THE SENTENCE IMPOSED,
IGNORED EVIDENCE OF MITIGATING FACTOR
[ELEVEN], MISAPPLIED THE CRITERIA OF
STATE V. [YARBOUGH][3] IN IMPOSING

3
100 N.J. 627, 643-44 (1985).

A-5255-17T4
10
 CONSECUTIVE SENTENCES AND FAILED TO
ACCORD DEFENDANT THE OPPORTUNITY TO
ALLOCUTE.

We first consider defendant's argument that trial judge erred by admitting

the "fresh complaint" testimony of M.B. "[A] trial court's evidentiary rulings

are entitled to deference absent a showing of an abuse of discretion . . . ." State

v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J.431,

439 (2012)). A trial court's evidentiary rulings should only be reversed if the

rulings were "so wide of the mark that a manifest denial of justice resulted."

State v. Kuropchak, 221 N.J. 368, 385-86 (2015) (quoting State v.Marrera, 148

N.J. 469, 484 (1997)). Where there was no objection to the claimed error at

trial, we review the matter for plain error. R. 2:10-2. The possibility of injustice

must be "sufficient to raise a reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached." State v. Macon, 57 N.J.

325, 336 (1971).

Evidence of a hearsay statement regarding a victim's complaint of sexual

abuse may be admissible for the limited purpose of negating an implied

inference that the alleged victim's "initial silence or delay indicates that the

charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015) (citing State v.

Hill, 121 N.J. 150, 163 (1990)). Such testimony is not admissible to prove any

A-5255-17T4
11
substantive element of the offense or to bolster the victim's credibility. State v.

Bethune, 121 N.J. 137, 148 (1990). The victim must make the statement

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

assault, to a person the victim would ordinarily turn to for support." R.K., 220

N.J. at 455 (citing State v. W.B., 205 N.J. 588, 616 (2011)). When the declarant

is a child at the time of the alleged abuse, the requirements are relaxed "because

silence is one of the many ways a child may respond to sexual abuse." Bethune,

121 N.J. at 148. However, the testimony must not recount unnecessary details

of the complaint. Id. at 146-47. Only details "minimally necessary to identify

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

456.

M.B. testified that T.S., approximately six years after the sexual abuse,

told him defendant "would make him suck his dick." Defendant argues

admitting M.B.'s testimony was erroneous because the complaint was not

"fresh," and the testimony improperly and graphically embellished the

complaint.

Having reviewed the record, the pre-trial judge properly denied

defendant's motion to exclude M.B.'s fresh complaint testimony. Although the

time period between the alleged abuse and T.S.'s disclosure of the abuse was

A-5255-17T4
12
lengthy, when weighed against the spontaneity by which the disclosure was

made to M.B., a trusted childhood friend, the judge concluded the fresh

complaint testimony was "admissible to prove only that the victim complained"

and negate an inference that the allegations were fabricated.

Similarly, the judge rejected defendant's contention that M.B.'s testimony

constituted a "lurid embellishment" of the complaint. The prosecutor asked

M.B. to be more specific regarding the acts of molestation as conveyed to him

by T.S. Defense counsel did not object to the prosecutor's questioning. Thus,

we review defendant's assertion that the judge, sua sponte, should have issued a

curative instruction or strike the testimony for plain error. The failure to give a

curative instruction or strike the testimony is reversible only if it raises a

reasonable doubt that the jury was led to a result it otherwise would not have

reached. R. 2:10-2; Macon, 57 N.J. at 335-36. Having reviewed the record, we

are satisfied the trial judge's issuance of proper limiting instructions,

immediately following M.B.'s testimony and again at the conclusion of trial,

nullified any potential prejudice to defendant. See State v. Scherzer, 301 N.J.

Super. 363, 421 (App. Div. 1997) ("Although the prosecutor acted improperly

in compelling . . . overly detailed testimony, the judge immediately instructed

A-5255-17T4
13
the jury following the testimony and thereby minimized the risk of prejudice to

defendants.").

Moreover, the trial judge did not need to strike M.B.'s testimony or

provide a curative instruction because M.B. recounted only such details as were

minimally necessary to identify the subject matter of the complaint. The

substance of M.B.'s testimony relayed the basic allegations of the complaint

without delving into graphic details. See State v. Balles, 47 N.J. 331, 339 (1966)

("She did not elaborate and could hardly have said less and still identified the

nature of [the] complaint."); cf. R.K., 220 N.J. at 459-60 (finding fresh

complaint testimony was improper where it included graphic description of

ejaculation, demonstration of masturbatory motion, and threats by the defendant

that were not elicited from the victim at trial).

We next consider defendant's claim that the trial judge erred in allowing

the State to reopen its case to recall T.W. to the stand and refusing to include a

"false in one, false in all" jury charge. Defendant contends that T.W., on recall,

changed her earlier testimony regarding her use of defendant's cell phone after

his arrest and that change in testimony warranted inclusion of the "false in one,

false in all" charge.

A-5255-17T4
14
 The judge limited T.W.'s testimony on recall to whether or not she used

defendant's cell phone following his arrest. During her recall testimony, T.W.

explained she did not recollect using defendant's cell phone on the day of his

arrest because she was in a state of panic. She further told the jury that no one

else had access to defendant's cell phone after his arrest, and she could have

used his device to search for lawyers.

A trial court's decision to reopen a case for additional evidence is reviewed

for abuse of discretion. State v. Wolf, 44 N.J. 176, 191 (1965). Trial courts

have "broad discretion in evidentiary matters as well as matters affecting the

conduct and proceedings in a trial." Barber v. Shop-Rite of Englewood &

Assocs., Inc., 393 N.J. Super. 292, 298 (App. Div. 2007) (citing State v. E.B.,

348 N.J. Super. 336, 344 (App. Div. 2002)). A trial court should reopen a case

for introduction of additional evidence when "the ends of justice will be served

by a reopening . . . ." Wolf, 44 N.J. at 191 (citing Braden v. Lewis, 259 P.2d

16, 19 (Cal. Ct. App. 1953)).

Here, the trial judge properly exercised his discretion in reopening the

State's case and allowing additional testimony based on an apparent discrepancy

regarding when, and by whom, defendant's cell phone was used on the day of

his arrest. The judge allowed the State to clarify whether defendant or T.W.

A-5255-17T4
15
could have used the cell phone for the purpose of conducting various legal

searches on the date of defendant's arrest. We are satisfied the judge's reopening

of the State's case to clarify a discrepancy in the evidence served the ends of

justice and therefore was not an abuse of discretion.

After reopening the State's case to allow T.W.'s additional testimony,

defense counsel asked the judge to provide the "false in one, false in all"

instruction to the jury. The "false in one, false in all" instruction states:

If you believe that any witness or party willfully or
knowingly testified falsely to any material facts in the
case, with intent to deceive you, you may give such
weight to his or her testimony as you may deem it is
entitled. You may believe some of it, or you may, in
your discretion, disregard all of it.

[Model Jury Charge (Criminal), "False in One – False
in All" (rev. Jan 14, 2013).]

A trial judge has discretion to give a specific instruction to the jury where

the judge "reasonably believes a jury may find a basis for its application." State

v. Ernst, 32 N.J. 567, 583-84 (1960) (citing Hargrave v. Stockloss, 127 N.J.L.

262, 266 (1941)). The "false in one, false in all" charge should be given only

where the witness testifies with "conscious falsity as to a material fact." Id. at

583. "[I]nadvertent misstatements or immaterial falsehoods" do not suffice to

A-5255-17T4
16
issue the instruction. State v. Young, 448 N.J. Super. 206, 228 (App. Div. 2017)

(quoting State v. D'Ippolito, 22 N.J. 318, 324 (1956)).

Here, the trial judge denied defendant's request to include the "false in

one, false in all" instruction because it was an "ancient charge." The judge

reasoned defense counsel would have the opportunity during closing argument

to "exploit inconsistencies" in the State's evidence. In addition, the judge noted

the jury would be instructed as to the credibility of the witnesses through his

issuance of the model jury instruction on credibility, which subsumes the "false

in one, false in all" charge. It is presumed the jury followed the judge's

instructions. State v. Martini, 187 N.J. 469, 477 (2006).

Further, the judge did not find that T.W. consciously falsified her

testimony as to a material fact regarding her possible use of defendant's cell

phone. T.W. testified on recall that she could have used defendant's cell phone;

not that she actually did so. Finding T.W.'s original testimony to the jury may

have contained an inadvertent misstatement related to the use of defendant's cell

phone, the trial judge did not abuse his discretion in allowing the State to reopen

its case and denying defendant's request to charge the jury with the "false in one,

false in all" instruction.

A-5255-17T4
17
 We turn to defendant's argument that the trial judge erred in denying his

motion to dismiss counts four and five of the indictment, charging attempted

aggravated sexual assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(a)(2)(a), and

attempted sexual assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(c)(4). Defendant

claims charges related to "attempts" to commit sexual assault are not governed

by the extended time limitations for sexual assault and therefore are time-barred.

N.J.S.A. 2C:1-6 establishes the time limitations for prosecuting various

offenses. A prosecution for sexual assault may be commenced at any time.

N.J.S.A. 2C:1-6(a)(1). However, for crimes not specifically enumerated under

the statute, those prosecutions must be commenced within five years. N.J.S.A.

2C:1-6(b)(1). Defendant argues the offenses related to attempted sexual assault

were filed beyond the five-year time limit.

The trial judge denied defendant's motion to dismiss counts four and five

based on the Legislature's intent to expand the time limitations for prosecutions

on behalf of victims of childhood sexual abuse. We review the judge's legal

ruling de novo, and the decision is not entitled to any special deference.

Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

We reject defendant's argument because neither the plain language of the

statute nor the legislative history evincing the Legislature's intent in enacting

A-5255-17T4
18
the statute suggests an attempted sexual assault should be treated differently

than a completed sexual assault for calculating the period of limitations. The

Legislature expressed its intent to give victims of sexual assault, particularly

minors, additional time to purse their allegations. Prosecutions on behalf of

minor victims of sexual assault may be commenced within five years of the

minor turning eighteen or within two years of the victim's discovery of the

offense, whichever is later. N.J.S.A. 2C:1-6(b)(4). The statute reflects the

Legislature's clear intent to allow minors extra time to report sex crimes whether

those crimes were attempted or completed.

Defendant cites no case in which a criminal charge for an attempted act

was dismissed on time limitation grounds where prosecution for a completed

criminal act was not time barred. Based on the plain language of the statute, we

are satisfied the attempted sexual assault charges are not detached from the

completed sexual assault charges for calculating the period of limitations.

We next address defendant's claim the trial judge erred in denying his

motion for a judgment of acquittal on counts three, six, eight, and ten, charging

second-degree endangering the welfare of a child. Endangering the welfare of

a child by engaging in sexual conduct may constitute a second-degree offense

where a defendant has a "legal duty for the care of a child or . . . has assumed

A-5255-17T4
19
responsibility for the care of a child . . . ." N.J.S.A. 2C:24-4(a)(1). Defendant

contends there was insufficient evidence adduced at trial to prove he had a duty

to care for, or assumed responsibility for the care of, T.S.

On a motion for a judgment of acquittal, the judge must determine:

[w]hether, viewing the State's evidence in its entirety,
be that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing State
v. Fiorello, 36 N.J. 80, 90-91 (1961)).]

We review a trial court's decision on a motion for judgment of acquittal,

applying the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263

(1964). We consider only the evidence presented by the State and reasonable

inferences from that evidence. State v. Samuels, 189 N.J. 236, 245 (2007). An

inference is reasonable when "it is more probable than not that the inference is

true; the veracity of each inference need not be established beyond a reasonable

doubt in order for the jury to draw the inference." Brown, 80 N.J. at 592 (citing

State v. DiRienzo, 53 N.J. 360, 376 (1969)). Although the State is entitled to

all reasonable inferences that can be drawn from its evidence, it still must prove

A-5255-17T4
20
all elements of the charge beyond a reasonable doubt. State v. Martinez, 97 N.J.

567, 572 (1984).

N.J.S.A. 2C:24-4(a)(1) elevates the third-degree crime of endangering the

welfare of a child to a second-degree crime where the actor engages in sexual

conduct with the child in situations where the defendant has "a legal duty for the

care of a child" or has "assumed responsibility for the care of a child." The

statute includes not only formal, legal relationships between the defendant and

the victim, but also defendants who undertake a "continuing or regular

supervisory caretaker relationship with the child . . . ." State v. Galloway, 133

N.J. 631, 661 (1993). "[A] person assuming only temporary, brief, or occasional

caretaking functions, such as irregular or infrequent babysitting," would not be

subject to the enhancement. Id. at 661-62; see also New Jersey Div. of Child

Prot. & Permanency v. B.H., 460 N.J. Super. 212, 221 (App. Div. 2019) (holding

a boyfriend who did not "assume a general and ongoing responsibility for regular

supervision or care" of a child could not be a guardian for purposes of an abuse

or neglect finding under Title Nine).

Here, the State presented evidence that defendant regularly assumed

responsibility for the care of T.S. Defendant's wife confirmed defendant cared

for T.S. in their home when she was not home. T.S. considered defendant to be

A-5255-17T4
21
his closest male family member, whom he trusted and loved, and considered him

a father figure. T.S. spent time with defendant "[a]lmost every day," "hang[ing]

out," playing video games, and "wheeling in the woods in [defendant's J]eep."

Based on this evidence, a reasonable jury concluded defendant was more than a

babysitter and assumed responsibility for the care of T.S. on a regular basis, thus

substantiating the enhanced charge.

Defendant next contends his convictions on counts three, six, eight, and

nine, charging endangering the welfare of a child, N.J.S.A. 2C:24-4, must be

vacated because the indictment and verdict sheet did not "contain any allusion

to specific conduct by the defendant other than a general allusion to 'sexual

conduct.'" Defendant raised this argument for the first time on appeal, and

therefore, we review the matter for plain error. R. 2:10-2. An indictment should

only be disturbed if it is clear that the indictment was palpably defective. State

v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). A charge is

sufficiently stated when it alleges the "essential facts of the crime." Id. at 19

(citing State v. LaFera, 35 N.J. 75, 81 (1961)).

N.J.S.A. 2C:24-4(a)(1) prohibits "sexual conduct which would impair or

debauch the morals of [a] child." Although "sexual conduct" is not defined by

the statute, "clearly included are sexual assault[] and sexual contact." State ex

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rel. D.M., 238 N.J. 2, 19 (2019) (quoting State v. Perez, 177 N.J. 540, 553

(2003)). The showing of pornographic images to a child may be considered

"sexual conduct" for the purposes of an endangering charge. State v. Hackett,

323 N.J. Super. 460, 471-72 (App. Div.), aff'd as modified, 166 N.J. 66 (2001).

Here, while the endangering the welfare of a child charges did not refer to

specific acts of sexual conduct by defendant, each count was preceded by a

charge that specified the conduct. Count three was preceded by the sexual

assault charge in count two, specifying the act of fellatio. Count six was

preceded by the sexual assault charge in count five, alleging defendant attempted

to anally penetrate the victim. Count eight was preceded by the aggravated

criminal sexual contact charge in count seven, delineating defendant's touching

of the victim's buttocks. Count ten of the indictment was preceded by the

lewdness charge in count nine, alleging defendant showed the victim obscene

material in violation of N.J.S.A. 2C:34-3(b).4 The indictment was therefore

factually sufficient to put defendant on notice of the charges and the

misstatement as to count ten in the verdict sheet was not "clearly capable of

producing an unjust result." R. 2:10-2.

4
Count nine of the indictment was dismissed by the trial court with the State's
consent. Thus, the charge stated as count ten of the indictment appeared as count
nine on the jury verdict sheet.
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 We turn to defendant's argument that cumulative trial errors deprived him

of a fair trial. It is well-established that "[a] defendant is entitled to a fair trial

but not a perfect one." State v. Marshall, 123 N.J. 1, 170 (1991) (quoting Lutwak

v. United States, 344 U.S. 604, 619 (1953)).

Because we found no individual errors before or during the trial, we need

not analyze defendant's cumulative error argument. Moreover, defendant failed

to brief this argument on appeal, and we deem the argument waived. See Weiss

v. Cedar Park Cemetery, 240 N.J. Super. 86, 102-03 (App. Div. 1990) (citing In

v. Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n. l (App. Div. 1989))

("The failure to adequately brief the issues requires it to be dismissed as

waived.").

Lastly, defendant argues the judge imposed an excessive sentence,

ignored evidence of hardship to his dependents, misapplied the law of

consecutive sentencing, and failed to accord him an opportunity for allocution.

We review sentencing decisions for abuse of discretion, subject to the case law

and the court rules. State v. Jones, 232 N.J. 308, 318 (2018). We may not

substitute our evaluation of the aggravating and mitigating factors for that of the

sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We will affirm

a sentence if the trial court's evaluation of the aggravating and mitigating factors

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was based on competent credible evidence in the record. State v. Roth, 95 N.J.

334, 364-65 (1984). In addition, we are "mindful of the real-time consequences

of NERA and the role that it customarily plays in the fashioning of an

appropriate sentence." State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.

2004).

Here, defendant's sentence of thirty-two years in prison with a parole

ineligibility period of twenty years, four months, and one day was not an abuse

of discretion. The jury found defendant guilty on all of the remaining counts of

the indictment. The judge merged certain counts of the indictment, which were

based on the same or similar conduct by defendant. The distinct convictions for

endangering the welfare of a child under counts three, six, eight, and nine did

not merge because defendant's conduct was distinct regarding those counts.

Defendant also contends the sentencing judge erred by failing to

reconsider the sentence based on a miscalculation of parole ineligibility, which

was identified and corrected on the record. The judge initially pronounced

defendant's aggregate sentence as thirty-two years, with a parole ineligibility

period of seventeen years, five months, and one day. However, the prosecutor

immediately noted that the State's parole ineligibility calculation under NERA

was twenty years and four months. The judge acknowledged on the record that

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the State's calculation was correct and so modified his calculation of parole

ineligibility period.

Regarding his challenge to the sentence imposed, defendant argues the

judge failed to consider mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11),

concerning excessive hardship on dependents. In reviewing mitigating factor

eleven, a defendant must present evidence that the sentence would impose

excessive hardship on his or her dependents, beyond the general hardship

associated with a period of incarceration. See State v. Locane, 454 N.J. Super.

98, 129-30 (App. Div. 2018) (indicating defendant's children would not suffer

more than other children whose parents are incarcerated). Defendant failed to

present sufficient evidence in support of mitigating factor eleven beyond the

general hardship facing incarcerated individuals.

Defendant also argues the sentencing judge erred by misapplying the

Yarbough factors for consecutive sentencing. When a defendant receives more

than one sentence, the "sentences shall run concurrently or consecutively as the

court determines at the time of sentence . . . ." N.J.S.A. 2C:44-5(a). In

Yarbough, our Supreme Court articulated specific factors to be applied by a

sentencing court in determining consecutive or concurrent sentences.

Yarbough, 100 N.J. at 643-44.

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 Having reviewed the record, the sentencing judge properly considered the

Yarbough factors in sentencing defendant consecutively on counts one, three,

and four, and set forth his reasons in support of consecutive sentences based on

the facts of the case. The imposition of consecutive sentences for distinct and

independent crimes was not an abuse of discretion. See State v. Carey, 168 N.J.

413, 430 (2001) (discussing the imposition of consecutive sentences).

Defendant further argues the sentencing judge's failure to offer him a

chance to allocute at the sentencing hearing requires reversal. Rule 3:21-4(b)

requires the sentencing judge to "address the defendant personally and ask the

defendant if he or she wishes to make a statement in his or her own behalf and

to present any information in mitigation of punishment." The right of allocution

arises out of the common law, and "reflects our commonly-held belief that our

civilization should afford every defendant an opportunity to ask for mercy."

State v. DiFrisco, 137 N.J. 434, 478 (1994). Our jurisprudence recognizes that

even "[t]he most persuasive counsel may not be able to speak for a defendant as

the defendant might, with halting eloquence, speak for himself." State v. Zola,

112 N.J. 384, 428 (1988) (quoting Green v. United States, 365 U.S. 301, 304

(1961) (plurality opinion)). Therefore, when a sentencing court fails to offer the

defendant the opportunity to allocute, "the error is structural and the matter must

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be remanded for resentencing without regard to whether there has been a

showing of prejudice." Jones, 232 N.J. at 319 (citing State v. Cerce, 46 N.J.

387, 396-97 (1966)).

Here, while the sentence imposed was supported by a detailed statement

of reasons, the judge omitted addressing defendant personally and inquiring if

defendant wished to speak before being sentenced. The State concedes

defendant was not afforded the opportunity to allocute at sentencing. Thus, we

remand for resentencing to allow defendant to exercise his right of allocution.

We take no position on the sentence to be imposed at resentencing.

Affirmed as to defendant's conviction. Remanded as to sentencing to

allow defendant to exercise his right to allocute. We do not retain jurisdiction.

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