State of New Jersey v. Luke v. Bakula

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NOT FOR PUBLICATION WITHOUT THE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-1206-19

STATE OF NEW JERSEY,

Plaintiff- Respondent,

v.

LUKE V. BAKULA,

Defendant-Appellant.
_______________________

Argued October 2, 2023 – Decided December 15, 2023

Before Judges DeAlmeida, Berdote Byrne, and Bishop-
Thompson.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 15-12-0942.

Susan Lee Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Lee Romeo, of
counsel and on the brief).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the brief).
PER CURIAM

Following a ten-day trial, a jury found defendant guilty of two counts of

aggravated sexual assault, N.J.S.A. 2C:15-2(a)(1) (count one and four); two

counts of sexual assault, N.J.S.A. 2C:14-2(b) (counts two and five); and two

counts of endangering the welfare of a child, N.J.S.A. 2C:25-4(a)(1) (counts

three and six). The offenses arose from A.S. and defendant's inappropriate

relationship that developed while they were members in a dojo, also known as a

karate academy.

Defendant was sentenced to twelve years under count one and six years

under count two, to run consecutively and subject to an eighty-five percent

parole bar under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

I.

On appeal, defendant presents the following arguments.

POINT I

DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THIS TRIAL WAS REPLETE
WITH INADMISSIBLE LAY OPINION AND
HEARSAY TESTIMONY REGARDING
DEFENDANT'S CHARACTER, CONDUCT[,] AND
GUILT, ELICITED FROM THE STATE'S
WITNESSES IN VIOLATION OF MULTIPLE
COURT RULINGS.

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1. Inflammatory, Inadmissible Lay Opinion Testimony
Regarding Defendant's Character.

2. Inadmissible Lay Opinion Testimony [a]nd Hearsay
Regarding Defendant's Conduct [a]nd Guilt.

3. Testimony [b]y [t]he State's Witnesses Regarding
Defendant's Character, Conduct [a]nd Guilt [w]as
Inadmissible Lay Opinion [a]nd Hearsay That Was
Highly Prejudicial.

4. The Prejudice [f]rom This Inadmissible Opinion
[a]nd Hearsay Evidence Was Overwhelming Where
[t]he State's Case Rested Almost Exclusively [o]n [t]he
Victim's Testimony.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT ADMITTED HIGHLY PREJUDICIAL
ALLEGATIONS OF UNCHARGED CONDUCT,
BECAUSE IT FAILED TO MAKE THE REQUIRED
FINDINGS UNDER STATE V. COFIELD, 127 N.J.
328 (1992), APPLIED THE WRONG BURDEN OF
PROOF, AND PERMITTED THE JURY TO USE THE
EVIDENCE FOR PLAN, MOTIVE, OPPORTUNITY,
KNOWLEDGE, BACKGROUND, AND DELAYED
DISCLOSURE, NONE OF WHICH WERE PROPER
BASES FOR ADMISSION.

1. The State's Motion [t]o Admit Uncharged Conduct
Evidence.

2. The Trial Court Abused Its Discretion When It
Admitted Evidence [o]f [t]he Uncharged Conduct
Because It Applied [t]he Wrong Burden [o]f Proof, It
Failed [t]o Identify [t]he Specific Purpose [o]r Disputed

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 Material Issue, [a]nd It Failed [t]o Conduct [t]he
Required Balancing Test.

3. None [o]f The Purposes [f]or Which These Highly
Prejudicial, Unsupported Allegations Were Admitted
Were Permissible Under These Circumstances.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT ADMITTED, AS "FRESH COMPLAINT,"
EVIDENCE OF A.S.'S VAGUE ALLEGATIONS TO
HER FRIEND IN 2013, SEVEN YEARS AFTER THE
ABUSE ALLEGEDLY ENDED IN 2006.

1. The State's Motion [t]o Admit Evidence [o]f A.S's
2013 Statement To [M.G.]

2. The Court Abused Its Discretion When It Admitted
These Vague Allegations Under [t]he Fresh Complaint
Doctrine: The Seven-Year Delay Rendered [t]he
Complaint Not "Fresh," [a]nd [t]he Court's Decision
Was Based [o]n Its Mistaken Understanding [o]f [t]he
Facts [a]nd [a] Mistaken Belief That [t]he Lengthy
Delay Solely Presented [a] Credibility Issue [f]or [t]he
Jury.

POINT IV

DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE CUMULATIVE
EFFECT OF THE ERRORS DEPRIVED HIM OF DUE
PROCESS AND THE RIGHT TO A FAIR TRIAL.
(Not raised below).

We have considered the arguments in view of the record and applicable

legal principles. We hold the evidence against defendant was of sufficient

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weight to lead us to conclude there was no error or abuse of discretion by the

trial court and reasonably viewed, did not produce an unjust result. Accordingly,

we affirm defendant's conviction and sentence.

II.

We review a trial court's evidentiary rulings "'under the abuse of discretion

standard because, from its genesis, the decision to admit or exclude evidence is

one firmly entrusted to the trial court's discretion.'" State v. Prall, 231 N.J. 567,

580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.

369, 383-84 (2010)). "Under [the] deferential standard, we review a trial court's

evidentiary ruling only for a 'clear error in judgment.'" State v. Medina, 242

N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). A

reviewing court will not substitute its "judgment for the trial court's unless," the

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

justice resulted." Ibid. (quoting State v. Brown, 170 N.J. 138, 147 (2001)).

Where a defendant challenges the admission of evidence for the first time

on appeal, the plain error standard applies. "Plain error is a high bar and

constitutes 'error not properly preserved for appeal but of a magnitude dictating

appellate consideration.'" State v. Santamaria, 236 N.J. 390, 404 (2019)

(quoting State v. Bueso, 225 N.J. 193, 202 (2016)). Stated differently, we must

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determine whether the alleged error was "of such a nature as to have been clearly

capable of producing an unjust result." R. 2:10-2. To warrant a reversal under

this standard, the "error [at trial]must be sufficient to raise 'reasonable doubt . .

. as to whether the error led the jury to a result it otherwise migh t not have

reached.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting State v. Jenkins,

178 N.J. 347, 361 (2004)). "To determine whether an alleged error rises to the

level of plain error, it 'must be evaluated "in light of the overall strength of t he

State's case."'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting State v.

Sanchez-Medina, 231 N.J. 452, 468 (2018)).

A. Lay Opinion and Hearsay Testimony

Defendant contends on appeal that the State elicited improper hearsay and

opinion testimony from S.N., G.M., and A.S. about his character traits, conduct,

and guilt that was "highly prejudicial," usurped the jury's fact-finding function,

improperly bolstered the State's claim that defendant committed the sexual

assaults, and clearly produced an unjust result. Thus, he argues, reversal is

warranted. Defendant's contentions lack merit.

Testimony of S.N. and G.M.

Defendant argues the "extensive" lay opinion and hearsay testimony from

S.N. and G.M. that defendant was "weird" and "awkward" was offered for no

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reason other than to cast defendant as a "strange person - a weird, long-haired

communist," "likely to prey on young girls," and to make an emotional appeal

to the jury. Since there was no objection to this testimony at trial, our review is

under the plain error standard. R. 2:10-2.

S.N., a former dojo member, began attending the dojo in 2004. In

response to the prosecutor's question to describe "the kind of person" defendant

was when they initially met, S.N. described defendant as "unusual," having an

"odd personality," and that he "seemed really lost." The witness said defendant

also had "a little unusual appearance," with "big, long hair." The court sustained

defense counsel's objection to S.N.'s testimony that defendant was a "staunch

communist."

G.M., a Methodist pastor and former dojo member, was also asked to

describe defendant when they initially met. Initially, G.M. testified defendant

was "kind of an awkward weird kid." When asked to describe "what kind of

person" defendant was based on her interactions, G.M. restated he was a "weird

kid." The judge then asked: "[W]hat does that mean?" Upon further

questioning by the prosecutor, G.M. explained defendant "seemed like a nice

kid" and there was "some awkward social things." Defense counsel objected to

any further exploration by the prosecutor of the meaning of "weird" and

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"awkward," and the prosecutor moved on to another line of questioning. G.M.

also recalled defendant as "overweight," "withdrawn," a "little quiet," and with

"kind of long hair."

Defense counsel did not object to either witnesses' description of

defendant's physical appearance and personality nor did he request a limiting

instruction. Both witnesses testified they did not see defendant engage in any

inappropriate behavior with A.S. or any other child.

Defendant next challenges testimony from S.N. and G.M. concerning

defendant's conduct and guilt. The trial court conducted a N.J.R.E. 104 hearing

in accordance with State v. Covell, 157 N.J. 554, 573, 574 (1999). At the 104

hearing, S.N. testified that in 2006 or 2007, defendant told her that he was "in

love" with and had a "crush" on A.S. S.N. said she felt as if she was "punched

in the stomach because [she] couldn’t breathe" and it was a "shocking

statement." At the time, defendant was eighteen or nineteen years old and A.S.

was ten; physically he was a "young man," and she was a "prepubescent girl."

Later, S.N. called defendant and told him that his feelings for A.S. were

"completely wrong," "totally inappropriate," and "totally out of line." She also

relayed defendant's statement to her husband and G.M. S.N. left the dojo in

2009.

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 G.M. also testified defendant told her that he had a "crush" on A.S. She

thought defendant's statement was "weird" because there was a nine-year age

gap between defendant and A.S. G.M. said when she told her father, N.M.,

about defendant’s "feelings," he reacted with a "kind of scrunched up in an

unpleasant look [on his face]." Defendant objected but the court overruled

defendant's objection, finding this testimony was not hearsay. G.M. also told

S.N. about defendant's statement.

After hearing testimony, the court considered and discussed Covell and

N.J.R.E. 803(b), and ruled the separate direct conversations defendant had with

S.N. and G.M. were admissible as statements offered against a party opponent.

Further, the trial court determined the witnesses were credible for the purpose

of the 104 hearing. The court noted, ultimately, "the jury [was] going to make

the ultimate determination as to whether or not the [witnesses] were credible."

At trial, both witnesses testified to the direct conversations they had with

defendant about his feelings for A.S. Following G.M.'s testimony, the trial judge

gave a limiting instruction to the jury regarding defendant's statements made to

S.N. and G.M. and gave it again when he read the jury the final charges before

it deliberated. Defendant denied making the statements to S.N. and G.M.

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 "[T]estimony regarding another person's character trait is a form of lay

opinion evidence." State v. C.W.H., 465 N.J. Super. 574, 601 (App. Div. 2021)

(quoting Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 310 (2006)). Lay

opinion evidence is "limited to testimony that will assist the trier of fact either

by helping to explain the witness's testimony or by shedding light on the

determination of a disputed factual issue." State v. McLean, 205 N.J. 438, 458

(2011). Lay opinion testimony is admissible subject to two conditions set forth

in N.J.R.E 701. Lay opinion evidence "may be admitted if it: (a) is rationally

based on the witness'[s] perception; and (b) will assist in understanding the

witness'[s] testimony or determining a fact in issue." N.J.R.E. 701. The second

element therefore precludes "lay opinion on a matter 'as to which the jury is as

competent as [the witness] to form a conclusion.'" State v. Sanchez, 247 N.J.

450, 469-70 (2021) (alteration in original) (quoting McLean, 205 N.J. at 459).

A witness's perception is knowledge acquired "through the use of one's sense of

touch, taste, sight, smell[,] or hearing." McLean, 205 N.J. at 457. Fact

testimony relates to what a witness did or saw. See id. at 460.

We conclude S.N. and G.M.'s descriptive testimony about their initial

interactions with defendant was permissible lay opinion because the testimony

was based on their perception of defendant's physical appearance, personality,

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and social skills. Moreover, the record shows defense counsel waived a curative

instruction that the jury disregard any comments that defendant was "weird,"

"awkward," and similar remarks. The witnesses lacked personal knowledge of

whether A.S. was sexually assaulted by defendant, and therefore, the descriptive

testimony was not offered for the truth of the matter asserted. Thus, we are

satisfied the trial court's admission of their testimony was not clearly capable of

producing an unjust result.

With respect to defendant's statements to S.N. and G.M. admitting to

having a "crush" on A.S., we agree with the trial judge that the witnesses'

testimony did not contain hearsay because defendant was the declarant. See

N.J.R.E. 803(b)(1). We likewise reject defendant's argument that the prejudice

to defendant was outweighed by the probative value of the conversations. See

N.J.R.E. 403. In fact, defendant denied making the statement to either witness.

As noted above, defendant's statement met the requirements of N.J.R.E. 803

(b)(1) and assisted the jury in determining a disputed factual issue: whether he

had a motive to sexually assault A.S. Moreover, because a jury can evaluate

evidence for itself does not render testimony about that evidence categorically

"unhelpful," nor does the lay witness "usurp[] the jury's role" in offering the

testimony. State v. Singh, 245 N.J. 1, 20 (2021). Instead, their testimony was

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admissible because the jury remained "free to discredit" the witnesses' testimony

that defendant made damaging admissions to them about his interest in A.S .

Ibid. We discern no reversible error.

We likewise reject defendant's contentions regarding G.M.'s testimony

with respect to whether it was "ethical or moral" to remain at the dojo following

a conversation G.M. had with the dojo owner's wife. No objection was made by

defense counsel. On cross-examination, defense counsel questioned whether on

an "ethical or moral" basis G.M. decided to talk to the dojo owner. G.M.

responded, "Yes."

G.M. also stated on multiple occasions that she had "a gut instinct"

regarding the truth of A.S.'s allegations, that she "believe[d] something

happened" and trusted her "gut instinct" despite having not done an investigation

into the truth of the allegations.

G.M.'s "gut instinct" and "ethical or moral" reasons were not based on her

perception because she never witnessed any inappropriate behavior between

defendant and A.S. See N.J.R.E. 602 ("[a] witness may testify to a matter only

if evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter."); N.J.R.E. 701 (a non-expert witness may

give testimony "in the form of opinions or inferences" as long as it "is rationally

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based on the witness'[s] perception" and "will assist in understanding the

witness'[s] testimony or determining a fact in issue."). G.M.'s testimony

reflecting her opinion that A.S. had truthfully reported that defendant had abused

her was, therefore, inadmissible. However, given the strength of the admissible

evidence adduced at trial, we conclude that the admission of that testimony did

not constitute plain error.

Testimony of A.S.

Lastly, defendant claims the testimony of A.S. calling defendant a

"pedophile" was the "most direct example of improper opinion testimony

regarding [his] guilt" because the State's case rested "almost exclusively" on her

testimony. We are not convinced.

A.S. testified in 2005-2006, when she was in fourth grade, defendant

continued to "penetrate her [genitals] with his fingers," "make her touch him,"

and "make [her] masturbate him" under his clothes. When A.S. cried, defendant

shushed her and said: "[I]t's okay." According to A.S., the acts happened "pretty

much every time," sometimes in the mat room, but defendant "mostly" waited

for people to leave the waiting room. According to A.S., she became "really

afraid of defendant." She also testified she felt "completely powerless" when the

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incidents happened at the dojo because she knew the acts were going to happen

"whether she wanted them to or not."

A.S. also recounted the abuse by defendant that occurred twice in her

bedroom during the spring and summer of fourth grade. When A.S. was alone

with defendant, he "touched [A.S.] over and then under her clothes," "penetrated

her," and made her "touch him" and "[masturbate] him for over fifteen minutes."

Once during dinner, the family and defendant were discussing having children,

and A.S. said, "Well, I'm never going to have kids." J.S. then said she would

change her mind when she was older. A.S. testified defendant said, "[W]e'll

decide that for ourselves one day."

A few weeks later, defendant returned for another family dinner. The

alleged abuse again took place in A.S.'s bedroom. A.S. said defendant did the

"[s]ame thing he always [did]." He began "touching [her] over [her] clothes and

then . . . penetrated [her] vaginally and he made [her] touch him."

A.S. testified around 2008 when she was in the sixth grade, she saw

defendant at the middle school as a first-grade student teacher. She stayed away

from him and told all her friends he was a "pedophile." Defense counsel did not

object. Rather, on cross-examination, defense counsel questioned whether A.S.

told anyone that she believed defendant was a "predator." A.S. responded that

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she told her friends defendant was a "pedophile" but did not tell them he

molested her.

Defense counsel further questioned A.S. regarding whether she conducted

an internet search to see if defendant had a criminal record. A.S. testified that

she found nothing on the internet about defendant as an adult. The prosecutor

objected to defense counsel's line of questioning. In a side bar conference, the

trial court stated it would not "normally" permit that line of questioning and

answering. The court noted, however, A.S. called defendant a "pedophile" two

or three times during her testimony and "no objection was made presumably for

strategy purposes." The court, however, permitted further questioning of A.S.

to clarify whether calling defendant a pedophile was related to the abuse

perpetrated on her and not based on some other act. Neither defense counsel nor

the prosecutor sought further clarification on cross or re-direct examination.

Defendant's arguments are unavailing. Defendant failed to object for

strategic reasons, then invoked the term "predator" to explore the victim's belief,

and now attempts to categorize the testimony as prejudicial and inadmissible

hearsay. It is not. The record shows A.S.'s testimony was from her personal

experience with defendant and offered for two reasons. First, to prove defendant

committed the sexual assaults on A.S. as an especially young child, thereby

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showing defendant's attraction to a prepubescent child. Second, to show how

A.S. felt when she saw defendant sporadically in the building as a first-grade

student teacher for children of the same age as A.S. when the abuse began. We

are satisfied the reference to defendant as pedophile does not amount to plain

error sufficient to raise a reasonable doubt that the jury arrived at a verdict it

would not have otherwise reached.

B. Prosecutorial Misconduct

On appeal, defendant argues the prosecutor committed three instances of

prosecutorial misconduct. First, the prosecutor invoked in summation G.M.'s

testimony regarding her "gut instinct" and "her belief in defendant's guilt," that

together created a "moral and ethical dilemma" for G.M. to remain at the dojo.

Second, the prosecutor "implicitly asked the jury to consider G.M.'s moral

conclusions in its determination of defendant's guilt." Consequently, defendant

argues he was deprived of a fair trial.

Defendant's contention is belied by the record. Both parties' summation

referenced G.M. Defense counsel summarized her testimony, stating "G. M. did

[not] do anything because she did [not] believe" A.S.'s allegations. Defense

counsel also referred to G.M.'s pastoral title.

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 The prosecutor, however, referenced G.M. only by her first name. As to

her G.M.'s testimony, the prosecutor in her summation commented on the verbal

and demeanor of S.N. and G.M. regarding their conversations with defendant

about his feelings about A.S. Specifically, the prosecutor commented that S.N.

and G.M. exhibited a "demeanor of guilt" on the stand "because they had known

and connected the dots as to what was happening back them, that this defendant

[told] them I'm in love with [A.S.]" Defense counsel did not object to this

summarization of witnesses' testimony.

"'Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented.'" State v. Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014)

(quoting State v. R.B., 183 N.J. 308, 332 (2005)). "In deciding whether

prosecutorial conduct deprived a defendant of a fair trial, 'an appellate court

must take into account the tenor of the trial and the degree of responsiveness of

both counsel and the court to improprieties when they occurred.'" State v.

Williams, 244 N.J. 592, 608 (2021) (quoting State v. Frost, 158 N.J. 76, 83

(1999)). "Factors to be considered in making that decision include, '(1) whether

defense counsel made timely and proper objections to the improper remarks; (2)

whether the remarks were withdrawn promptly; and (3) whether the court

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ordered the remarks stricken from the record and instructed the jury to disregard

them.'" Ibid. (quoting Frost, 158 N.J. at 83). "In reviewing closing arguments,

we look, not to isolated remarks, but to the summation as a whole." State v.

Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91

N.J. 86, 105 (1982)). Reversal is appropriate only where the prosecutor's actions

are "clearly and unmistakably improper" to "deprive defendant of a fair trial."

Patterson, 435 N.J. Super. at 508 (quoting State v. Wakefield, 190 N.J. 397, 437-

38 (2007), cert. denied, 552 U.S. 1146 (2008)) (internal quotation marks

omitted).

Measured against this standard, we are not persuaded the prosecutor's

remarks made during summation deprived defendant of a fair trial. As discussed

above, defense counsel made no timely objection to the comments now raised

on appeal. Having reviewed the summation in its entirety, we are satisfied the

prosecutor's summation failed to implicitly ask the jury to consider G.M.'s moral

conclusions in their determination of defendant's guilt. Furthermore, the trial

judge instructed the jury that counsels' summations were not evidence and must

not be considered as evidence. After considering the totality of the

circumstances, including the context of the challenged remarks, we find no merit

to defendant's contention.

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 C. Uncharged Conduct Evidence from 2002 to 2005

Defendant now argues the trial court erred by admitting evidence of the

uncharged conduct allegedly committed by defendant from 2002 to 2005.

Defendant argues: the court applied the wrong burden of proof; the court failed

to identify the specific purpose or disputed material issue; and the court failed

to conduct the required balancing test. We reject defendant's contentions.

After jury selection, the State moved to admit acts of sexual abuse

between 2002 and 2005 as intrinsic evidence under State v. Rose, 206 N.J. 141

(2011), or alternatively, as other crimes evidence under N.J.R.E. 404(b) and

State v. Cofield, 127 N.J. 338 (1992).

We discern from the record, the State argued and, ultimately, presented

the following evidence of uncharged conduct by defendant with A.S. to show he

groomed her to engage in the sexual acts. A.S. testified at a 104 hearing that at

the time of the alleged abuse, her family were long standing members of the

dojo, and her mother was a teaching assistant. A.S. and her young brother would

accompany their mother when she trained at the dojo.

The abuse started when she was six or seven years old in the mat room at

the dojo. She stated near the end of second grade and the beginning of third

grade, defendant began "rubbing" her breasts and genitals over and then under

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her clothes. A.S. claimed that when she was in mid-third grade the abuse

escalated to "a lot more regular" "penetration with his finger." By the end the

third grade, defendant had penetrated A.S. and had her masturbate him "over

twenty or thirty times."

After oral argument, the trial court determined the uncharged conduct

"evidence [was not] intrinsic." Citing U.S. v. Green, 617 F.3d 233 (3rd Cir.

2010), and Rose, the court found any acts committed by defendant prior to 2005

did not directly prove the charges in the indictment. The court also found the

uncharged acts were not performed "contemporaneously" with the charged acts

from 2005 to 2006. It "did not find that the crimes prior to 2005 facilitate[d] the

commission of the charged crime under the intrinsic evidence argument."

The court appropriately conducted a Cofield analysis and concluded the

evidence related to the alleged sexual acts that predate 2005 was admissible at

trial. With respect to the first prong, the court found the "prior acts were relevant

to a disputed issue." As to the second prong, the court found defendant's

"conduct [was] similar in kind and it [was] reasonably close in time." The judge

explained "there [was] no break whatsoever" because "[i]t was a continuing

course of conduct." In considering the third prong, the court also found there

was clear and convincing evidence of prior acts based on the State's

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representation concerning statements made by A.S. and other witnesses. Under

the fourth prong, the court acknowledged the prior acts "could be considered

very prejudicial" to the defendant. However, in considering the fourth prong,

the court stated it would impose limitations on the prior acts utilizing the

guidelines articulated in State v. Herbert, 457 N.J. Super. 490, 505 (App. Div.

2019), and giving a limiting instruction to the jury before the evidence was

presented and in the final jury charge.

At trial, A.S. recounted the details of the sexual abuse from 2002 to 2005.

Immediately following this testimony, the trial court gave a limiting instruction

to the jury explaining that evidence of defendant's acts between 2002 and 2005

was offered for the following purpose: necessary background; an ongoing

pattern to facilitate the commission of the crimes from 2005 to 2006; motive to

continue the sexual abuse knowing defendant would remain silent; why A.S.

was helpless, remained silent, and did not confide in her mother; and an alleged

plan to desensitize A.S. to sexual conduct so that he could continue his abuse.

Before a court determines whether a prior bad act is admissible for a

particular purpose, it should first determine whether the evidence relates to a

prior bad act or whether it is intrinsic to the charged offense. State v.

Brockington, 439 N.J. Super. 311, 325 (App. Div. 2015) (quoting Rose, 206 N.J.

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at 179). Evidence that is intrinsic to the charged offense, while needing to

satisfy the rules relating to relevancy and undue prejudice, "is exempt from the

strictures of Rule 404(b)[.]" Rose, 206 N.J. at 177. Intrinsic evidence is limited

to two categories: (1) evidence that "directly proves the charged offense"; and

(2) evidence that, when "performed contemporaneously with the charged crime,"

facilitates "the commission of the charged crime." Brockington, 439 N.J. Super.

at 327-28 (quoting Rose, 206 N.J. at 180) (internal quotation marks omitted).

As to the second category of intrinsic evidence, the temporal proximity between

the uncharged bad act and the indicted crime must be contemporaneous, not

simply "close in time," and the link between the same must be "meaningful."

Brockington, 439 N.J. Super. at 338 (Fisher, P.J.A.D., dissenting) (citations

omitted).

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

admissibility of other bad acts and crimes evidence. 127 N.J. at 338. To be

admissible under N.J.R.E. 404(b), the evidence: (1) must be relevant to a

material issue which is genuinely disputed; (2) the other conduct must be similar

in kind and must have occurred reasonably close in time to the events at issue

in the criminal trial; (3) evidence of the other conduct must be clear and

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convincing; and (4) its probative value must not be outweighed by prejudice to

the defendant. Ibid.; accord State v. Green, 236 N.J. 71, 81-82 (2018).

The trial court's evidentiary ruling and Cofield analysis were sound. The

court appropriately considered and determined the uncharged acts did not satisfy

either category as intrinsic evidence. However, the evidence of uncharged acts

had probative value because it provided the necessary background to show

defendant's plan, the intent to groom a young child, and the progression of the

sexual acts to desensitize A.S. See State v. Garrison, 228 N.J. 182, 197 (2017)

(holding that the State may introduce evidence of an uncharged act of sexual

assault on a child to show a defendant's "plan to further desensitize [the child]

to sexual conduct so that he could continue to abuse her"); State v. J.M., 225

N.J. 146, 160 (2016). The court also properly informed the jury about the

limited proper use of the uncharged conduct evidence and its limitations. Based

on the record, we conclude there was no abuse of discretion by the trial court in

admitting the uncharged conduct.

D. Fresh Complaint

Before us, defendant contends the trial court abused its discretion in

allowing M.G.'s testimony concerning A.S.'s molestation complaint seven years

after the last act occurred. We are unpersuaded.

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 At a pretrial N.J.R.E. 104 hearing, M.G., A.S.'s best friend since middle

school, testified that in the late spring of 2013, while at a coffee shop , A.S. was

"uncharacteristic[ally] crying" as she "poured out" that she had been "molested"

starting at age four or five by defendant at the dojo and ending before middle

school. M.G. assumed A.S. was ten or eleven when the abuse ended. A.S. did

not provide details. Later, in July 2013, A.S. went to M.G.'s home after a

"blowout fight" with her parents and disclosed additional details to M.G. that

defendant "touched" her, repeated that she was "molested," and said the

molestation ended "before middle school." A.S. also stated while in a "yelling

fit" she told her father about the abuse.

M.G. testified that A.S. did not report the abuse because, according to

A.S., "her mom's reaction had been . . . dismissive" from A.S.'s "perspective as

a child," and that A.S. thought no one would believe her, including her parents,

the police, or the courts. M.G. stated A.S. felt "bad," a "sense of shame," and

"embarrassment."

The trial court granted the State's motion to admit M.G.'s testimony

regarding the spring 2013 conversation with A.S. subject to the "fresh complaint

limitations." The court did not find the July conversation to be a fresh complaint

because it was a separate conversation.

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 In a detailed and comprehensive oral ruling admitting A.S.'s initial

conversation with M.G., the trial court cited State v. Hill, 121 N.J. 150, 163

(1990), and found that A.S. would ordinarily turn to M.G. for support. The court

also cited State v. Hummel, 132 N.J. Super. 412 (App. Div. 1975), State v. L.P.,

352 N.J. Super. 369 (App. Div. 2002), and State v. Bethune, 232 N.J. Super.

532, 536-37 (App. Div. 1989), and determined: (1) three years had been held

reasonable; (2) the rules are relaxed for child sexual abuse victims; and (3) the

reasonableness of the delay is left to the jury. Lastly, the court cited to State v.

Pillar, 359 N.J. Super. 249, 281-82 (App. Div. 2003), stating: "even a

substantial lapse of time between the assault and the complaint may be

permissible if satisfactorily explainable by the age of the victim and the

circumstances surrounding the making of the complaint." The trial court

calculated five years between the end of the alleged abuse and the disclosure to

M.G., and seven years until the complaint to police. The court concluded "[t]he

circumstances ma[d]e . . . clear that A.S. appeared to be fearful, embarrassed,

[and,] afraid[;] that her relationship with her [m]other was rocky[; and] that even

when A.S. did disclose the abuse, she was concerned about whether or not they

would believe her." The court then said "the time period between the alleged

abuse and its ultimate disclosure does not bar the fresh complaint witness from

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testifying. It merely becomes a credibility determination for the jury to make at

trial."

Lastly. the trial court cited State v. J.S., 222 N.J. Super. 247, 253 (App.

Div. 1998), and concluded "there [was] no evidence that anybody coaxed,

coerced, [or] prompted A.S. to disclose or fabricate these allegations when she

made them to M.G." Thus, the court concluded the initial conversation at the

coffee shop to be a fresh complaint, but not the second, separate conversation in

July 2013. Instead, the court stated that, under the case law, "a significant time

delay merely bears upon the weight of the evidence and not its admissibility,"

and "[t]his particular length of time can be submitted to a jury for their

evaluation."

In this case, the State presented additional testimony other than M.G.'s

fresh complaint testimony to explain the delay in reporting the molestation. A.S.

testified that in 2013, she had a fight with her mother, which escalated into

fighting about "[defendant] and karate." A.S. told her mother she "didn't protect

[her] . . . [and] never listened," and then she called her father to pick her up. In

2013, A.S. also told her father of the abuse. She did not provide details but

"gestured" with her hands to show where defendant had touched her. She stated

at the time, she felt "ashamed," "dirty," and "embarrassed." Sometime later,

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A.S. told her mother. According to A.S., her parents did not want her to go the

police because she would "ruin her future" and "nobody believes you when you

go to the police." A.S. admitted that she did not want to go to the police because

she "just want[ed] it to go away."

A.S. testified the first friend that she told was M.G.; however, she did not

provide details but merely stated that she was "molested." A.S. reported the

molestation to the police during her senior year. When asked why the delay in

reporting the molestation, A.S. explained she tried "to say something in every

way that she could" but that "no one would listen;" "then it was over and [she]

just wanted to move on with her life." She further explained that "if he had

never decided to be a teacher, she would never have gone to the police." A.S.

explained that she did not want her other friends to know about the abuse. When

she learned defendant became a first-grade teacher, she "knew it was going to

happen again." She further explained that "if it happened again and she hadn't

done anything about it, . . . then it would have been [her] fault."

Generally, hearsay is an out-of-court statement admitted "to prove the

truth of the matter asserted," N.J.R.E. 801(c) and, subject to limited exceptions,

is inadmissible. N.J.R.E. 802. Ordinarily, a third party's testimony about a

victim's out-of-court description of an alleged sexual assault is inadmissible

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hearsay evidence. Ibid. However, under the fresh complaint rule, the State can

present "evidence of a victim's complaint of sexual abuse, [which is] otherwise

inadmissible as hearsay, to negate the inference that the victim's initial silence

or delay indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455

(2015). Still, "the trial court is required to charge the jury that fresh[]complaint

testimony is not to be considered as substantive evidence of guilt, or as

bolstering the credibility of the victim; it may only be considered for th e limited

purpose of confirming that a complaint was made." Id. at 456 (citing State v.

Bethune, 121 N.J. 137, 147-48 (1990)).

"In order to qualify as fresh[]complaint evidence, the victim's statement

must have been made spontaneously and voluntarily, within a reasonable time

after the alleged assault, to a person the victim would ordinarily turn to for

support." Id. at 455 (citing State v. W.B., 205 N.J. 588, 616 (2011)). In

determining whether a complaint was made within a reasonable time after the

act(s) occurred, the lapse of time between the incident(s) and the reporting does

not bar the statement if explainable by the youth of the victim and the statement's

attendant circumstances, such as "being cajoled and coerced into remaining

silent by their abusers." Bethune, 121 N.J. at 143. In other words, the

reasonable time component of the fresh complaint rule must be applied flexibly

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"'in light of the reluctance of children to report a sexual assault and their limited

understanding of what was done to them.'" W.B., 205 N.J. at 618 (quoting State

v. P.H., 178 N.J. 378, 393 (2004)). An abuse of discretion may be found if the

trial court made a "clear error of judgment." State v. Brown, 170 N.J. 138, 147

(2001) (citation omitted).

We reject defendant's assertion that he was deprived of a fair trial and

conclude the trial court appropriately applied its discretion in admitting M.G.'s

testimony concerning the coffee shop conversation, disclosing defendant's

abuse, and therefore, did not deprive defendant of a right to a fair trial. P.H.,

178 N.J. at 393; Bethune, 121 N.J. at 146. Here, the trial court limited M.G.'s

testimony to "[o]nly the facts that [were] minimally necessary to identify the

subject matter of the complaint." R.K., 220 N.J. at 456; see Hill, 121 N.J. at

163.

M.G.'s testimony satisfies the fresh complaint rule. We agree with the

trial court that A.S. made a spontaneous statement when she "poured out" her

complaint to her best friend M.G. while discussing "philosophical concepts."

We also disagree with defendant that A.S. did not make the complaint

within a reasonable time after the last assault. We also agree with the trial court

that A.S. was "exceptionally young" both when the abuse began and ended four

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years later. The record shows various triggers since the last sexual act that

steered A.S. toward revealing the molestation. First, defendant's presence at her

middle school as a student teacher triggered emotions for A.S., and the feeling

that the abuse could happen to another first grader. Second, the "dismissive"

response from her mother. Third, her parents dissuading A.S. from reporting

the abuse. Fourth, the court's findings that A.S. appeared to be "fearful,"

"embarrassed," and "afraid that she would not be believed by her parents, the

police, or her best friend." Under these circumstances, we conclude A.S.'s

complaint to M.G. was timely made. Pillar, 359 N.J. Super. at 281-82. For the

reasons stated, we are satisfied the trial court had sound reasons to apply the

fresh complaint doctrine, finding the initial conversation between A.S. and M.G.

admissible.

Cumulative Errors

Defendant argues the cumulative effect of the previously discussed

misconduct and trial errors deprived him of due process and a fair trial. As noted

above, there is no error, individually or cumulatively, in any of the points

asserted in this appeal and the granting of a new trial is not warranted. State v.

T.J.M., 220 N.J. 220, 238 (2015); see State v. Weaver, 219 N.J. 131, 155 (2014).

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 To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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