STATE OF NEW JERSEY VS. JASON MAYS (17-01-0032, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-0365-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON MAYS,

Defendant-Appellant.
_______________________

Submitted May 11, 2021 – Decided May 28, 2021

Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment No. 17-01-
0032.

Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).

Michael J. Williams, Acting Hunterdon County
Prosecutor, attorney for respondent (Jeffrey L.
Weinstein, Acting Assistant Prosecutor/Special Deputy
Attorney General, on the brief).

PER CURIAM
 Defendant was tried before a jury and found guilty on two counts of

second-degree official misconduct, in violation of N.J.S.A. 2C:30-2(a), second-

degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(2), and other offenses.

The trial court sentenced defendant to an aggregate term of sixteen years in

prison, with ten years of parole ineligibility. Defendant appeals from the

amended judgment of conviction (JOC) dated September 17, 2018. We affirm

defendant's conviction but remand for resentencing.

I.

In January 2017, a Hunterdon County grand jury returned an indictment

charging defendant, a correctional officer at Edna Mahan Correctional Facility

(EMCF) with: second-degree official misconduct by engaging in sexual conduct

with A.F., N.J.S.A. 2C:30-2(a) (count one); third-degree criminal coercion of

A.F., N.J.S.A. 2C:13-5(a)(4) (count two); fourth-degree criminal sexual contact

with A.F. by touching her intimate body part for the purpose of sexual

gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count three);

second-degree official misconduct, by engaging in sexual conduct with B.D.,

N.J.S.A. 2C:30-2(a) (count four); second-degree sexual assault, committing an

act of sexual penetration with B.D. while she was detained in prison, N.J.S.A.

2C:14-2(c)(2) (count five); second-degree official misconduct by engaging in

2 A-0365-18
sexual conduct with M.D., N.J.S.A. 2C:30-2(a) (count six); third-degree

criminal coercion of M.D., N.J.S.A. 2C:13-5(a)(4) (count seven); fourth-degree

criminal sexual contact with M.D. by having her touch his intimate body part

for the purpose of sexual gratification, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-

2(c)(2) (count eight); second-degree official misconduct by engaging in sexual

conduct with C.L., N.J.S.A. 2C:30-2(a) (count nine); second-degree sexual

assault upon C.L. while she was detained in prison, N.J.S.A. 2C:14-2(c)(2)

(count ten); fourth-degree criminal sexual contact with C.L., N.J.S.A. 2C:14-

3(b) and N.J.S.A. 2C:14-2(c)(2) (count eleven); fourth-degree criminal sexual

contact with C.L., N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(2) (count

twelve); second-degree official misconduct by engaging in sexual conduct with

J.O., N.J.S.A. 2C:30-2(a) (count thirteen); second-degree sexual assault upon

J.O. while she was incarcerated, N.J.S.A. 2C:14-2(c)(2) (count fourteen); and

second-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a) (count

fifteen). 1

By order entered on March 27, 2018, the trial judge limited defendant's

cross-examination of the alleged victims. The order stated that cross-

1
We use initials to identify the alleged victims of the sexual offenses. See R.
1:38-3(c)(12).

3 A-0365-18
examination was limited to the facts of the inmates' indictable convictions, the

dates of the offenses, the degrees of the offenses, the names of the offenses, and

the sentences imposed. Defendant was prohibited from cross-examining the

inmate witnesses as to the underlying facts of the convictions, and the

underlying reasons for any violation of probation.

We briefly summarize the evidence presented at trial. EMCF is the State's

only all-female correctional facility. EMCF houses up to 600 inmates and

employs about 340 corrections officers, eighty percent of whom are male.

Defendant began working there in March 2005.

To qualify for this position, defendant was required to pass a civil service

test, undergo a background check, and meet certain physical fitness

requirements. Defendant met these requirements and participated in training at

the Correctional Staff Training Academy (CSTA) in Sea Girt. CSTA provides

training in various areas including firearms, physical fitness, the New Jersey

criminal code, and ethics. Participants are instructed to avoid undue familiarity

with inmates.

When defendant began his employment at EMCF, he was given an

orientation list. Defendant acknowledged receipt of this list in writing. The list

included the prohibition against undue familiarity with inmates and stated that

4 A-0365-18
employees should not share personal information with inmates, or have any

personal relationships with them, including sexual contact. Defendant also had

training pursuant to the federal Prison Rape Elimination Act of 2003 (PREA),

34 U.S.C. §§ 30301-09, which also covered prohibitions on sexual conduct

between inmates and corrections officers.

Lieutenant Hector Smith, the shift commander at EMCF, described the

layout of the facility, which has several cottages, including Alpha and Bravo

cottage ("A" and "B" cottage, respectively). Smith explained that there are no

security cameras in "A" and "B" cottage, and there are no cameras in the inmates'

cells. In "A" cottage, there is a beauty room and an ice room. Corrections

officers are required to keep track of the number of inmates by regularly

performing counts.

Smith also described the inmate disciplinary process. He said officers

have the discretion to issue oral warnings or written charges to inmates for minor

or "spot" infractions. More serious violations of the prison rules, including

fighting and assaults, are written on a blue sheet. These violations may result

in placement away from the general prison population.

Inmates are provided with the facility's code of conduct, which precludes,

among other things, inmates from having personal relationships with corrections

5 A-0365-18
officers, including sexual contact. Inmates are required to report violations of

this policy. If an inmate reports sexual contact by a corrections officer, the

inmate is removed from her area and taken for a medical assessment. The inmate

is placed in protective custody while the allegation is investigated. An inmate

who falsely reports undue familiarity with an officer is subject to discipline.

A.F. testified that she had been incarcerated at EMCF on two occasions

for drug offenses, shoplifting, and violations of the conditions of the intensive

supervision program. She knew defendant as an officer while she was housed

in "A" cottage. She said defendant began to tell her she was pretty, and then

asked to see the intimate parts of her body during counts.

According to A.F., defendant's actions became physical when he caught

her stealing food from the kitchen. He pointed to the "blue sheet" and asked

what she was going to do for him. She was concerned a disciplinary violation

would result in the loss of privileges and delay her release. Defendant told her

to be undressed when he arrived for count. She complied. On another occasion,

defendant arrived in her cell. She said he licked her neck and touched her

breasts.

B.D. testified that in July 2016, she was an inmate at EMCF, where she

was serving a sentence for burglary. She has prior convictions for fraud,

6 A-0365-18
weapons, forgery, and possession of a controlled dangerous substance (CDS).

She also has been sentenced to probation. B.D. said she was housed in "A"

cottage at EMCF, and defendant was one of the corrections officers assigned to

the cottage. She thought defendant was a "nice looking man" and "persistently"

"came onto" him by flirting with him and trying to "look cute."

B.D. testified that around July 4, 2016, defendant showed her a condom

and suggested that they go to the beauty room together during an inmate count.

B.D. said she wanted to remain in her room, but defendant was afraid they would

get caught and she agreed to go to the beauty room. Once there, they had sexual

intercourse. According to B.D., defendant bent her over a chair and entered her

from behind while she looked out the window to see if anyone was coming.

They were interrupted when B.D. saw a Sergeant outside walking toward the

front of the building. B.D. quickly pulled up her pants and ran to her room, and

defendant returned to his office.

Approximately three months later, B.D. met with detectives from the

prosecutor's office. She initially denied having sexual relations with defendant

because she was frightened, and she did not want defendant or herself to get in

trouble. Later that same day, B.D. revealed that she had sexual intercourse with

7 A-0365-18
defendant once. She said she did not reveal more because she wanted to keep

things "short" and did not want to get involved.

After she learned she would have to testify at trial in this case, B.D. told

the prosecutors she also had performed oral sex on defendant in the officers'

bathroom after he came in her room for count. B.D. said that she approached

defendant when he came into her room for a count. He told her, "not here," and

they went into the bathroom, where she performed oral sex on defendant.

Thereafter, defendant quickly left the bathroom. He handed B.D. some

napkins and told her to make it look as if she was cleaning. She also told

prosecutors that on another occasion in July 2016, she removed her clothes and

sat naked on her bed, at defendant's request. B.D. described defendant's penis,

indicating that it was lighter colored at the tip and darker toward his body. She

was shown a photograph of the defendant's penis and testified that it looked like

defendant's genitals.

C.L. testified that from March through August 2016, she was incarcerated

at EMCF. She was serving a four-year sentence for attempting to obtain a CDS

by fraud and possession of a CDS. She was housed in "A" cottage for a few

months, and she saw defendant a couple of times per week during the morning

or afternoon.

8 A-0365-18
 She said she first became uncomfortable when defendant began making

certain comments to her, such as "hey sexy." She stated that she did not report

the comments because she did not want to get in trouble. She also believed her

word would not be believed over the word of a corrections officer.

C.L. further testified that at times, while she was in her cell early in the

morning during inmate count, defendant would touch her on her buttocks and

vagina. She also complied with defendant's request that she touch his penis over

his clothes. C.L. stated that she did so because she did not want defendant to

become angry, and she was coming up for parole in August 2016.

C.L. stated that eventually, defendant told her he wanted to meet her in

the beauty room during inmate counts when no one else was around. She

testified that defendant was adamant about being in the beauty room because

that room had a window which faces toward the main entrance of the building

and he could see if anyone was coming.

C.L. testified that at some point, she went with defendant to the beauty

room. Defendant had a condom. She pulled down her pants and underwear and

they had sexual intercourse. They stopped because someone was approaching

the outside entrance. C.L. ran back to her cell. She told three of her close

friends, inmates J.D., A.F., and C.G., about the incident.

9 A-0365-18
 Later, C.L. was released to a halfway house. Law enforcement officers

visited her there and questioned her about defendant. She testified that initially,

she did not mention having sexual intercourse with defendant because she was

afraid she would be sent back to prison. However, the investigators returned

approximately one week later, and she told them she had not been completely

truthful. She said that she and defendant had sexual intercourse.

M.D. testified that she was incarcerated at EMCF for two years because

of her conviction for theft and possession of a CDS. She had been sentenced to

probation, but she violated probation and was sentenced to a term of

incarceration, which she served at EMCF. M.D. acknowledged that she had

prior convictions for possession of a CDS, criminal trespass, shoplifting, and

theft.

M.D. testified that in 2016, she had been housed in "A" cottage, where

defendant worked on Sundays and Mondays. She explained that in July or

August 2016, defendant became flirtatious and expressed an interest in having

sex with her. She said defendant would ask to see her naked when she got out

of the shower, and he would pull her covers off when she was sleeping.

M.D. further testified that on one occasion, defendant came to her cell and

had her stroke his penis. At another time, defendant asked her to remove her

10 A-0365-18
panties. She complied because she felt she did not have any choice in the matter.

She said the tip of defendant's penis was lightly colored and the bottom part was

darker in color. She was shown the photographs of defendant's penis. She said

the penis shown in the photos was consistent with her recollection.

M.D. also stated that about one week later, defendant called her into his

office and said he was not going to do her any special favors such as smuggling

in items from outside the prison or overlooking disciplinary infractions. She

asked defendant why he would risk ruining his career by engaging in sexual

activity with inmates when he could have sex outside the prison.

According to M.D., defendant acknowledged that risk and indicated he

could go to jail or face a lawsuit. M.D. said defendant continued to tell her that

he wanted to see her vagina and ask her to "go on all fours." She testified that

she did not initially report these incidents because she was afraid it would delay

her release date.

J.O. testified that she had been an inmate at EMCF since July 2009. She

had been convicted of aggravated manslaughter, possession of a weapon for an

unlawful purpose, and other offenses. She had been sentenced to twenty-five

years of incarceration and required to serve eighty-five percent of her sentence

11 A-0365-18
before becoming eligible for parole. She also had a prior conviction for

possession of a CDS.

J.O. stated that defendant began to flirt with her by making comments

about her body. She said she welcomed his attention. She testified that in April

2016, she and defendant went to the ice room at "A" cottage, while another

inmate acted as a lookout. J.O. said she performed oral sex upon defendant. She

described his penis as large and circumcised. She stated that defendant's penis

was hooked-shaped, like a banana.

J.O. stated that during this incident, defendant began to curse at her for

her choice of a lookout. According to defendant, that inmate had a reputation

for being a "snitch." J.O. stated that after she finished performing oral sex upon

defendant, she and defendant left the room separately. She returned to her cell.

The inmate who had acted as the lookout also testified and corroborated parts of

J.O.'s testimony.

Defendant testified on his own behalf. He denied having any sexual

contact with the five inmates who testified against him. He said they had all

fabricated the allegations as retaliation because he had disciplined them. He

stated that he caught M.D. with food she was not allowed to have, and she was

angry because he made her discard it. Defendant admitted he never "wrote up"

12 A-0365-18
the accusers, but insisted they were out to get him. He claimed he heard them

say they were going to "get" him.

Defendant's girlfriend testified for the defense. She was asked to describe

defendant's penis. She said it was not shaped like a banana and did not have a

hook-like shape. She acknowledged that the tip was lighter in color than the

bottom part. She was shown photographs and said they accurately depicted

defendant's penis and its overall coloration.

Defendant also presented testimony from an inmate, who said she saw

several inmates, including A.F. and M.D., crushing and snorting pills at EMCF.

The inmate also testified that she heard A.F. tell M.D. she was going to "set"

defendant "up" because he caught her several times with food that she had

stolen.

Another inmate testified that there were no disciplinary problems at "A"

cottage until B.D., M.D., and C.L. arrived there and began crushing and snorting

pills. The inmate said she heard B.D., M.D., and C.L. angrily state they were

going to "get" defendant. She told defendant what she heard and warned him to

be careful.

The jury found defendant guilty on counts four (official misconduct by

engaging in sexual conduct with B.D.); five (sexual assault upon B.D.); nine

13 A-0365-18
(official misconduct by engaging in sexual conduct with C.L.); twelve (sexual

contact with C.L.); and fifteen (engaging in a pattern of official misconduct).

The jury found defendant not guilty of the other charges. Thereafter, the judge

denied defendant's motion for a directed verdict or, in the alternative, a new trial.

At sentencing, the judge merged count five with count four, and count

twelve with count nine. On counts four and nine, the judge sentenced defendant

to eight-year terms of incarceration, each with a five-year period of parole

ineligibility. The judge required defendant to serve the sentences consecutively.

The judge also sentenced defendant to a concurrent eight-year term of

incarceration on count fifteen. The judge entered the JOC dated August 6, 2018,

and an amended JOC dated September 17, 2018. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO PREJUDICIAL JOINDER;
THE TRIAL COURT SHOULD HAVE SUA SPONTE
ORDERED A SEVERANCE OF THE COUNTS
ALLEGED AS TO THE SEPARATE VICTIMS. (Not
Raised Below).

(a) Prong 1 – The evidence was not relevant to a
material issue.

(b) Prong 4 – The State would have failed to
establish that the probative value of the evidence
is not outweighed by its apparent prejudice.

14 A-0365-18
 POINT II
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO THE COURT'S DENIAL OF
DEFENDANT'S RIGHT TO PRESENT RELEVANT
EVIDENCE DESIGNED TO ATTACK THE
CREDIBILITY OF THE WITNESSES.

POINT III
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTIONS FOR JUDGMENTS OF
ACQUITTAL [NOTWITHSTANDING THE
VERDICT] OR NEW TRIAL.

POINT IV
THE SENTENCE OF EIGHT YEARS IN PRISON,
[WITH] FIVE YEARS [OF] PAROLE
INELIGIBILITY ON COUNTS 4 AND 9,
RESULTING IN SIXTEEN YEARS IN PRISON
WITH TEN YEARS OF PAROLE INELIGIBLITY
WAS EXCESSIVE BECAUSE THE COURT ERRED
IN APPLYING AGGRAVATING SENTENCING
FACTORS ONE AND TWO.

II.

As noted, defendant argues that the trial court erred by failing to sever sua

sponte the counts pertaining to the different alleged victims. He contends he

was denied a fair trial by the joinder of the counts for trial.

A. Invited Error.

We note initially the State contends that defendant's failure to seek

severance of the counts involving the five separate alleged victims was

apparently part of the defense strategy. The State notes that, at trial, defendant

15 A-0365-18
claimed that the alleged victims had conspired against him in retaliation for his

disciplinary actions. According to the State, the joint trial of the charges

involving the five alleged victims furthered the defense strategy of showing that

they engaged in a conspiracy to frame him. The State therefore argues that

defendant's argument regarding severance should be barred under the invited

error doctrine.

"Under that settled principle of law, trial errors that 'were induced,

encouraged or acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal. . . .'" State v. Bailey, 231 N.J. 474, 490 (2018)

(alteration in original) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). "In

other words, if a party has 'invited' the error, he [or she] is barred from raising

an objection for the first time on appeal." A.R., 213 N.J. at 561 (citing N.J. Div.

of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 342 (2010)). "The doctrine

prevents litigants from 'playing fast and loose' with, or otherwise manipulating,

the judicial process." Bailey, 231 N.J. at 490 (quoting State v. Jenkins, 178 N.J.

347, 359 (2004)).

Here, defense counsel did not file a motion for severance of the counts

involving the separate alleged victims and did not object to the joinder of the

charges. However, defense counsel did not expressly seek a joint trial on all

16 A-0365-18
charges in the indictment. Furthermore, there is nothing in the record indicating

that defense counsel wanted joinder of the charges as a matter of strategy.

The record shows that defense counsel did, in fact, claim that the alleged

victims conspired to frame defendant. Counsel may have pursued that defense

because the charges were joined in the indictment and he believed a severance

motion would not be successful. This is not the sort of "gamesmanship-driven

scenario to which the invited error doctrine is traditionally applied." Ibid.

Therefore, we will address defendant's argument that the trial court should

have, on its own motion, severed the counts involving the five alleged victims.

B. Joinder of the Charges for Trial.

Rule 3:7-6 permits the State to charge multiple offenses in the same

indictment in a separate count for each offense. Under the rule, joinder is

permissible if the offenses "are of the same or similar character or are based on

the same act or transaction or on [two] or more acts or transactions connected

together or constituting parts of a common scheme or plan." Ibid.

Rule 3:7-6 further provides that "[r]elief from prejudicial joinder shall be

afforded as provided by [Rule] 3:15-2." Rule 3:15-2(b) states that if "it appears

that a defendant . . . is prejudiced by a permissible or mandatory joinder of

offenses or of defendants in an indictment or accusation the court may order an

17 A-0365-18
election or separate trials of counts, grant a severance of defendants, or direct

other appropriate relief."

Joinder of offenses is favored but interests in economy and efficiency do

not override a defendant's right to a fair trial. State v. Sterling, 215 N.J. 65, 72-

73 (2013). The test for determining prejudice is "whether, assuming the charges

were tried separately, evidence of the offenses sought to be severed would be

admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." Id. at

73 (alteration in original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341

(1996)).

Evidence of other crimes, wrongs, or acts "may be admitted . . . as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident when such matters are relevant to a material issue in

dispute." N.J.R.E. 404(b)(2). Such evidence is admissible if it is relevant to

prove a fact genuinely in dispute "and the evidence is necessary as proof of the

disputed issue." State v. Darby, 174 N.J. 509, 518 (2002) (quoting State v.

Hernandez, 170 N.J. 106, 118-19 (2001)).

Furthermore, "[i]f the evidence would be admissible at both trials, then

the trial court may consolidate the charges because 'a defendant will not suffer

any more prejudice in a joint trial than he would in separate trials.'" Chenique-

18 A-0365-18
Puey, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App.

Div. 1983)). N.J.R.E. 404(b)(1) provides, however, that "evidence of other

crimes, wrongs, or acts is not admissible to prove a person's disposition in order

to show that on a particular occasion the person acted in conformity with such

disposition."

In State v. Cofield, the Court adopted a four-part test to determine the

admissibility of other-crimes evidence:

1. [t]he evidence of the other crime must be admissible
as relevant to a material issue;

2. [it] must be similar in kind and reasonably close in
time to the offense charged;

3. [t]he evidence of the other crime must be clear and
convincing; and

4. [t]he probative value of the evidence must not be
outweighed by its apparent prejudice.

[127 N.J. 328, 338 (1992).]

"Trial courts must apply that test on a case-by-case basis 'in order to avoid the

over-use of extrinsic evidence of other crimes or wrongs.'" State v. Green, 236

N.J. 71, 82 (2018) (quoting Cofield, 127 N.J. at 338).

On appeal, defendant argues that the evidence of the offenses sought to be

severed did not meet the first prong of the Cofield test. He asserts the evidence

19 A-0365-18
was not material to any issue in dispute because he had denied committing any

of the alleged sexual offenses. Defendant also argues that the evidence was not

necessary to show he had a motive to engage in the alleged sexual conduct. He

contends that motive would have been established by proof he committed the

alleged conduct.

Here, the other crimes evidence was relevant to prove that defendant had

engaged in similar acts with each of the alleged victims under similar

circumstances. The evidence also was relevant to show that defendant had the

opportunity to engage in sexual activity in the inmates' cells or other rooms

where he would not be seen. Thus, the evidence satisfied the first prong under

Cofield.

Defendant further argues that the other crimes evidence did not satisfy the

fourth Cofield factor. He asserts that any probative value the evidence might

have had was substantially outweighed by its undue prejudice. He contends the

State offered the evidence solely to show that he had a propensity to commit

sexual offenses. He asserts the evidence distracted the jurors and led them to

forego an independent analysis of the evidence as it pertained to the charges

against each individual victim. We disagree.

20 A-0365-18
 Admission of evidence of other crimes or wrongs "requires an inquiry

distinct from the familiar balancing required under N.J.R.E. 403: the trial court

must determine only whether the probative value of such evidence is outweighed

by its potential for undue prejudice, not whether it is substantially outweighed

by that potential as in the application of Rule 403." Id. at 83 (internal citations

omitted) (citing State v. Barden, 195 N.J. 375, 389 (2008)). "[I]f other less

prejudicial evidence may be presented to establish the same issue, the balance

in the weighing process will tip in favor of exclusion." Id. at 84 (alteration in

original) (quoting State v. Rose, 206 N.J. 141, 161 (2011)).

Here, the balance weighed in favor of admission of the evidence of the

other alleged crimes. As noted, the evidence was relevant to show that defendant

had the opportunity to engage in such activity with inmates and it was feasible

for him to do so while he was working. The evidence was prejudicial to the

defense, but not unduly so, and there was no less prejudicial evidence to

establish these facts.

Moreover, the judge instructed the jury that defendant had been charged

with various offenses involving five separate victims. The judge told the jury it

must consider the allegations regarding these victims separately. The judge

stated:

21 A-0365-18
 You should not consider any of the proofs that were
presented during this trial to prove defendant guilty of
the counts against one of the victims as proof against
the other victim as they must be considered separately.

You may not conclude that just because you find
defendant committed the offenses against one of the
victims that he must be guilty of committing the
offenses against the other victim. The State must
separately prove beyond a reasonable doubt the
offenses alleged against each independent victim. And
therefore you must consider the offense against each
victim separately and independently.

We must assume the jury followed the judge's instruction. State v. Burns,

192 N.J. 312, 335 (2007). As noted previously, the jury found defendant guilty

only on the counts involving two of the alleged victims and found defendant not

guilty on ten counts involving the other three inmates. The jury's verdict

indicates that the jury followed the court's instructions and considered the

charges as to each alleged victim separately.

III.

Defendant next argues he was denied the right to a fair trial because the

trial judge precluded him from presenting relevant evidence challenging the

credibility of the five alleged victims who testified against him. He argues that

the judge should have permitted him to introduce evidence that these witnesses

had violated prison rules by using and distributing drugs, which he claims was

22 A-0365-18
relevant to show that the victims fabricated the allegations to avoid disciplinary

actions. Defendant further argues that the judge erred by precluding him from

challenging the credibility of the alleged victims by questioning them about their

criminal records.

A trial court's evidentiary ruling is reviewed under an abuse of discretion

standard. State v. Prall, 231 N.J. 567, 580 (2018) (citing Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). An appellate court

will not set aside an evidentiary ruling unless it appears that the trial court made

a "clear error of judgment." Ibid. (quoting State v. J.A.C., 210 N.J. 281, 295

(2012)).

At the time of the trial of this case, N.J.R.E. 608 precluded the use of

specific instances of conduct to challenge the credibility of a witness. State v.

Scott, 229 N.J. 469, 481 (2017). The rule "bar[red] not only the use of extrinsic

evidence but also cross-examination into specific instances of misconduct." Id.

at 488 (Rabner, C.J., concurring). 2

2
N.J.R.E. 608 was amended effective July 2020 in response to the Court's
decision in Scott. See Biunno, Weissbard, & Zegas, Current N.J. Rules of
Evidence, cmt. on N.J.R.E. 608 (2021). We apply the version of the rule in
effect when the case was tried.

23 A-0365-18
 The rule "permit[ted] evidence in the form of opinion, reputation, or a

prior criminal conviction to attack a witness's credibility by establishing the

witness's character for untruthfulness." State v. Guenther, 181 N.J. 129, 140

(2004). However, "in limited circumstances and under very strict controls a

defendant has the right to show that a victim-witness has made a prior false

criminal accusation for the purpose of challenging that witness's credibility."

Id. at 154.

In this case, the judge granted the State's motion to limit cross-

examination of the victim-witnesses. The judge noted that the State was not

seeking to prevent admission of the alleged victims' prior convictions, but rather,

to limit the defenses from questioning these witnesses on the conduct that

resulted in their convictions.

The judge stated that N.J.R.E. 609 only permits evidence of prior

indictable offenses that are the subject of valid convictions, but not juvenile or

disorderly persons matters. The judge also stated that while a violation of

probation cannot be used to impeach a witness, the sentence imposed may be

used to impeach the witness pursuant to State v. Jenkins, 299 N.J. Super. 61, 75

(App. Div. 1997).

24 A-0365-18
 The judge then conducted a N.J.R.E. 403 analysis and found that, as so

limited, the alleged victims' prior convictions were relevant, probative, and not

unduly prejudicial to the State. The judge noted that evidence the alleged

victims were incarcerated at EMCF or another correctional facility due to a

criminal conviction would necessarily be brought out at trial.

The judge also noted that Guenther applied in limited circumstances

where the witness made a prior false accusation similar in nature to the crime

with which defendant had been charged. The judge stated that except for that

limited exception, the evidence rules did not permit the admission of specific

instances of prior bad conduct for the purpose of challenging the credibility of

a witness.

The judge therefore found the evidence rules only permit proof of the

convictions themselves, not the specific underlying acts that resulted in the

convictions, to be admitted for the purpose of challenging the credibility of the

witnesses. The judge found that to delve into those details would be unduly

prejudicial to the State, confuse the jury, and effectively create minitrials.

We are convinced the judge's decision was consistent with the evidence

rules in effect at the time this matter was tried. The judge correctly found that

a witness's prior convictions could be used to challenge the credibility of the

25 A-0365-18
witness, but the defense could not inquire into the facts underlying those

convictions.

We note that the judge allowed defense counsel to claim the alleged

victims had conspired against him in retaliation for taking disciplinary actions

against them. The judge also permitted defendant to assert that the alleged

victims' claims were an attempt to preempt the imposition of disciplinary

sanctions. In addition, the judge instructed the jury that:

[C.L.] smoked cigarettes and met with [J.D.] in her
room in violation of [EMCF] rules. The defense also
introduced evidence that [A.F.], [B.D.] and [M.D.]
smoked cigarettes, used drugs and traded pills in
violation of [EMCF] rules. The evidence has been
offered to show bias by these witnesses against the
defendant. You should consider this evidence along
with all the other evidence in the case in determining
whether or not the state has proven beyond a reasonable
doubt that defendant is the person who committed the
crimes alleged in the indictment.

Thus, the record does not support defendant's contention that the trial

judge denied him of his right to a fair trial by limiting him from presenting

evidence regarding the alleged victims' other crimes and bad acts. The record

shows the judge considered the evidence, excluded cumulative or inadmissible

evidence, and allowed the defense to present relevant evidence pertaining to the

defense's claim that the witnesses had conspired and fabricated the claims

26 A-0365-18
against defendant. The judge's decision to limit cross-examination of the inmate

witnesses was not a mistaken exercise of discretion.

IV.

Defendant also argues that the trial judge erred in denying his motion for

a judgment of acquittal, or in the alternative, for a new trial. He argues that the

State's evidence was insufficient to support the jury's verdict.

Defendant asserts that the State relied almost entirely upon the testimony

and credibility of the alleged victims. He contends there was no corroborating

evidence to support their claims, and there was no physical evidence to support

the allegations. He argues that the convictions represent a miscarriage of justice.

Rule 3:20-1 provides that the trial court may grant a motion for a new trial

"in the interest of justice. . . . unless, having given due regard to the opportunity

of the jury to pass upon the credibility of the witnesses, it clearly and

convincingly appears that there was a manifest denial of justice under the law."

The decision is committed to the sound discretion of the trial judge, and an

appellate court "should interfere with the exercise of that discretion only when

'a clear abuse has been shown.'" State v. Van Ness, 450 N.J. Super. 470, 495-

96 (App. Div. 2017) (quoting State v. Brooks, 366 N.J. Super. 447, 454 (App.

Div. 2004)).

27 A-0365-18
 On appeal, our review "is limited to a determination of whether the trial

court could reasonably have reached the findings it made based on 'sufficient

credible evidence . . . in the record.'" Id. at 496 (alteration in original) (quoting

Brooks, 366 N.J. Super. at 454). We must defer to the trial judge's "feel for the

case" because the judge "had the opportunity to 'observe and hear the witnesses

as they testified.'" Ibid. (quoting Brooks, 366 N.J. Super. at 454).

We reject defendant's argument that the judge erred by denying his motion

for a judgment of acquittal or a new trial. We affirm the denial of defendant's

motion substantially for the reasons stated by the trial judge in her written

opinion addressing that motion.

In the opinion, the judge carefully reviewed the evidence pertaining to

counts four, five, nine, twelve, and fifteen, and noted the elements of each

offense. The judge applied the correct standard for ruling on a motion under

Rule 3:20-1 for judgment notwithstanding the verdict or for a new trial.

The judge found that the State had presented sufficient evidence to support

the jury's finding that defendant committed the offenses beyond a reasonable

doubt. The record supports the judge's analysis and conclusion. Defendant's

contention that the State presented insufficient evidence to support the jury's

verdict lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

28 A-0365-18
 V.

Defendant also argues that his sentence is excessive. He contends the

judge erred in her findings on the aggravating and mitigating factors. He also

contends the judge improperly imposed the same sentences for the offenses

involving B.D. and C.L.

Here, the judge found the following aggravating factors applied to counts

four, five, nine, and twelve: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant

will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter

defendant and others from violating the law). In addition, the judge found that

the following additional aggravating factors applied to counts nine and twelve,

which involved defendant's sexual activity with C.L.: one, N.J.S.A. 2C:44-

1(a)(1) (nature and circumstances of the offense); and two, N.J.S.A. 2C:44-

1(a)(2) (gravity and seriousness of the harm to the victim).

The judge noted that, based on her testimony at trial, C.L. was particularly

vulnerable and incapable of exercising normal mental or physical resistance.

She had been approaching her release date and feared her release would be

delayed if she did not yield to defendant's sexual advances. The judge also noted

that C.L. was young, had an extensive history of drug abuse, and was new to the

prison system, which defendant was probably aware of.

29 A-0365-18
 The judge explained that while aggravating factors one and two applied

to C.L., they did not apply to B.D. The judge noted that defendant also had

preyed upon B.D.'s vulnerabilities. However, B.D. had more experience in the

prison system than C.L, and she did not have the same problems as C.L.

The judge further found mitigating factor seven applied. N.J.S.A. 2C:44-

1(b)(7) (defendant has no history of criminal delinquency or activity). The judge

found that no other mitigating factors applied. The judge concluded that the

aggravating factors substantially outweighed the mitigating factors and that a

substantial period of incarceration was necessary.

The judge also reviewed the factors for consecutive and concurrent

sentences pursuant to State v. Yarbough, 100 N.J. 627 (1985), and determined

that consecutive sentences should be imposed as to defendant's official

misconduct because there were separate victims of these offenses, and the

crimes occurred at separate times.

On appeal, defendant argues that the judge erred by imposing the same

sentences on counts four and nine, even though the judge found aggravating

factors one and two applied to C.L., but not B.D. He contends the judge failed

to differentiate between B.D. and C.L., the facts underlying the offenses, or how

the aggravating factors applied to one offense and not the other.

30 A-0365-18
 Defendant further argues that the offenses were not committed in a

particularly heinous, cruel, or depraved manner. He asserts there was nothing

about the nature of the offenses that would warrant imposition of a sentence

above the statutory minimum of five years for a second-degree offense. N.J.S.A.

2C:44-1(a)(1).

These contentions have no support in the record. As noted above, the

judge thoroughly explained why aggravating factors one and two applied to the

offenses involving C.L. and why these aggravating factors did not apply to the

offenses involving B.D. Moreover, the judge fully explained why she was

imposing the same sentence on counts four and nine.

We reject defendant's contention that the judge abused her discretion by

imposing an eight-year term of incarceration, each with five years of parole

ineligibility, on counts four and nine. We also reject defendant's contention that

the judge erred by treating elements of the offenses as aggravating factors for

sentencing.

Defendant asserts that aggravating factors one and two are subsumed

within his conviction for official misconduct as to C.L. The judge properly

considered both the nature and circumstances of the offense, and the gravity and

seriousness of the harm to the victim in determining the sentence that should be

31 A-0365-18
imposed on count nine. This was not impermissible double-counting of the

elements of the offense, as defendant claims.

We are constrained, however, to remand for resentencing. While this

appeal was pending, our Supreme Court issued its opinion in State v. Torres,

N.J. , (2021), and addressed the standards for imposing consecutive

sentences. The Court stated that Yarbough requires the trial court to place on

the record a statement of reasons for imposing consecutive sentences, which

should address the overall fairness of the sentence. Id. at (slip op. at 26)

(quoting State v. Miller, 108 N.J. 112, 122 (1987)).

The Court held that "[a]n explicit statement, explaining the overall

fairness of a sentence imposed on a defendant for multiple offenses in a single

proceeding or in multiple sentencing proceedings, is essential to a proper

Yarbough sentencing assessment." Id. at (slip op. at 27) (citing Miller, 108

N.J. at 122). As noted, in this case, the trial court imposed consecutive

sentences. We therefore remand for resentencing in light of Torres.

Affirmed in part, reversed in part, and remanded for resentencing in

accordance with this opinion. We do not retain jurisdiction.

32 A-0365-18