### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 0434

- 17T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. GERALD B. WILSON, Defendant

- Appellant.

______________ ___________

Submitted December 17, 2019

– Decided Before Judges Yannotti, Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13

- 0 5

- 0452. Joseph E. Kra kora, Public Defender, attorney for appellant (Cody T yler Mason, Assistant Deputy Public Defender, of counsel and on the briefs). Jennifer Webb

- McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C hristopher Sayer, Assistant Prosecuto r, of counse l and on the bri ef).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

January 30, 20202 A

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- 17T4

Defendant Gerald Wilson appeals from his convictions for first

- degree aggravated sexual assault, N.J.S.A. 2C:14

- 2(a)( 2 ) (c) (count one) ; second

- degree child endangerment, N.J.S.A. 2C:24

- 4(a) (count two) ; two cou nts of third

degree witness tampering, N.J.S.A. 2C:28

- 5(a)(1) (counts three and four) ; two counts of third

- degree terroristic threats, N.J.S.A. 2C:12

- 3(b) (counts five and six) ; second

- degree sexual assault, N.J.S.A. 2C:14

- 2(c)(1) (count seven); third

degr ee crim inal restraint, N.J.S.A. 2C:13

- 2(a) (count eight) ; and second

- degree kidnapping, N.J.S.A. 2C:13

- 1(b) (count nine) . We affirm the convictions but reverse the imposition of the $30 per month Sex Offender Supervision Fund (SOSF) penalty , which was imp roperly asse ssed. We also remand and direct the judge to conduct a hearing on defendant's ability to pay restitution to th e Victims of Crime Compensation Office (VCCO) and on the penalty for the Sex Crimes Victim Treatment Fund (SCVTF) , and to amend the j udgment of c onviction (JOC).
I

. We discern the following facts from the evidence adduced at trial. Defendant was married to C.M. 1 in 2008. C.M. has two daughters from a prior relationship, J.P. , a minor, and M.P., an older daughter who did not live w ith the

1 We use initials to identify C.M. and others involved. See R. 1:38

- 3(c)(9).3 A

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coup le , and a minor son, O.P. After marrying defendant, C.M. and her t wo minor children moved in with defendant. He began sexually abusing J.P. almost immediately. C.M. and her children are undocumented immigrants from Mexico. The morning of No vember 10, 2 009, defendant and C.M. left their home for work while J.P. and O.P. were still asleep. Approximately twenty minutes later, C.M. returned home because she forgot something. Upon her arrival, C.M. found defendant standing partially undressed w ith J.P . on the bed in her underwear. C.M. accused defendant of sexually abusing her daughter. Later that day, J.P. told her mother that defendant had been sexually assaulting her for a year and a half and repeatedly forced her to have oral and vaginal s ex with him. J.P. also reported to her m other that when J.P refused to have sex with defendant, he threatened to kill her with a gun , then dragged her by the hair into the bedroom and forced her to have sex with him. Following their conversation, C.M. a nd J.P. went home and confronted defendant. He grabbed J.P. by the throat and struck her near her eye. Defendant threatened them not to tell anyone about the incident , while pointing a pistol at them, or else he would report them to immigration authoriti es . He also told C.M. that "something will happen" to her children.4 A

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C.M. attempted to call the police but defendant threw her phone to the ground. Ultimately, J.P. contacted the police. Initially, C.M. lied to the police and told them that her dispute with de fenda nt was over J.P.'s cell phone privileges because she feared being deported. At a later time, C.M. told the police she caught defendant sexually abusing J.P. After being threatened again by defendant, C.M. recanted her story. J.P. similarly r efused to un dergo a gynecological examination related to the alleged abuse and told the doctor she fabricated the allegations. Thereafter, defendant sent J .P. on a one

- way trip to Mexico to live with C.M.'s friends. At trial, O.P. testified t hat on anoth er occasion, he observed defendant leaving J.P.'s bedroom in his underwear, and defendant warned O.P. that he would "send [him] to Mexico" if he told anyone . Thereafter, defendant made
death threats against O.P

. Evidence was also presented th at defendant sexually as saulted M.P. He forced M.P. to get in his car, took her to his house, and forced her to have sex with him. Defendant showed M.P. a gun and threatened to deport her family if she told anyone about the incident. Sometime b etween Ap ril and June 2010, defen dant went to the bakery where M.P. worked and asked her to come to his5 A

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house, but she refused. Meanwhile, C.M. left defendant in June 2010, and moved her children out of the home. On June 21, 2010, M.P. exited a laundromat and obs erved defend ant followin g her. She entered a nearby Burger King and asked the cashier to call the police. Defendant followed her into the Burger King and requested that she go home with him. Before the police arrived, defendant walked away and left his car in the p arking lot. State Trooper Brian Stanker responded and observed M.P. to be visibly shaken. At trial, Stanker testified that he reviewed the security footage video which showed defendant and M.P. speaking outside the restaurant, and after she

w ent inside, defendant tr ied to watch her through the windows. M.P. reported defendant's sexual abuse to Detective Adam Capoferri of the New Jersey S tate
P olice. Defendant denied the allegations, claiming that he was suffering from erectile dysfunction si nce 2007 and therefore, it was impossible for him to have committed the sexual assaults. At trial, he testified about various erectile dysfunction medications he took but did not work. He also denied threatening C.M., J.P., or M.P.6 A

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In January 2011, the Cumberland County Prose cutor's Office arranged for J.P. to return to the United States legally, and she gave a statement to Detective Capoferri about defendant's sexual abuse. At the conclusion of trial, a jury convicted defendant on all nine counts.
Th e judge impo sed an aggre gate prison term of thirty

- eight years, with thirty

four years subject to the No Early Release Act (NERA) , N.J.S.A. 2C:43

- 7.2, Parole Supervision for Life, N.J.S.A. 2C:43

- 6.4, Megan's Law, N.J.S.A. 2C:7

- 1
to

- 23, fines, penalties , a nd $1470 in restitution to the VCCO

. On appeal, defendant argues the following points:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT SEVERING COUNT S RELATING TO DIFFERENT WITNESSES AND EVENTS (Not Raised Below); IN ADMITTING IRRELEVANT AND PREJUDICIAL OT HER

- CRIME EV IDENCE (Partially Raised Below); AND IN NOT INSTRUCTING THE JURY ON HOW TO CONSIDER THE EVIDENCE. (Not Raised Below).
A. The Trial Court Committed Plain Error B y Not Severing T he Counts Concerning Different Incidents A nd Witnesses.
B. The Tr ial Court Co mmitted Plain Error In Admitting Other

- Crime Evidence Of Defendant Allegedly Stalking And Twice Attempting To Kidnap A Complaining Witness

.7 A

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- 17T4 C. The Trial Court Committed Reversible Error In Admitting Bad

- Act Evidence Of Defendant Allegedly Thre atening , Sta lking , And Abusing The Witnesses

. D. The Trial Court Committed Plain Error In Not Instructing The Jury To Consider The Offenses Separately And To Not Use Them Or The Bad

Act Evidence For Propensity.
POINT II A NEW TRIAL IS REQUIRED BECAUSE T HE STATE UNF AIRLY BOLSTERED ITS CASE WITH IMPROPER HEARSAY TESTIMONY (Not Raised Below), OPINION TESTIMONY (Not Raised Below), TESTI MONY THAT VIOLATED THE BEST

EVIDENCE RULE, AND TESTIMONY AIMED AT APPEALING TO THE JURY'S EMOTIONS. (Partially Raised Below ).
A. The T rial Court Committed Plain Error In Admitting Corroborative Hearsay Testimony About The Allegations

. B

. The Trial Court Committed Plain Error In Admitting Opinion Testimony Regarding Defendant's Guilt

. C

. The Trial Court Committed Reversible Error In All owing Testimony About What Was On A Surveillance Video That Was Not Presented At Trial

. D

. The Trial Court Committed Re versible Error In Allowing The State To Elicit Irrelevant And Highly Inflammatory Testimony Aimed At The Jury's Emotions

.8 A

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REV ERSAL IS REQUIRED BECAUSE THE PROSECUTOR ENGAGED IN REVERSIBLE MISCONDUCT AIMED AT IMPROPERLY BOLSTERING THE STATE'S CASE AND DISPARAGING THE DEFENSE. (Not Raised Below).
POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DEPRIVED DEFENDANT OF DUE PROCE SS AND A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTIONS. (Not Raised Below).
POINT V
RESENTENCING IS REQUIRED BECAUSE THE COURT FAILED TO ADDRESS REQUESTED MITIGATING FACTORS; RESTITUTION WAS ORDERED FOR A NON

- VICTIM; THE COURT DID NOT HOLD A HEARI NG ON THE FINES TO BE PAID; AND THE $30

- PER MONTH SEX OFFENDER FINE WAS UNCONSTITUTIONALLY IMPOSED.
A. The Trial Court Erred In Failing To Address The Mitigating Factors Raised By The Defense

. B

. The Trial Court Erred In Imposing Restitution For A Non

- V ictim And In Doing So Without A Hearing

. C. A Remand Is Required Because The Trial Court Imposed $3000 In SCVTF Penalties Without A Hearing

.9 A

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- 17T4 D

. A Remand Is Required To Remove The $30

- Per

Month Sex Offender Supervision Fee

.

II.
A. Severance
D efendant arg ues that the trial court erred by failing to sever the counts of the indictment as to J.P. and M.P. This issue was not raised below. Therefore, we must consider whether the court's failure to sever the cha r ges for trial was erroneous and, if so, whether it constituted plain error, which is an error "clearly capable of pro ducing an unjust result." R. 2:10

- 2. He further claims the trial court erred by allowing other crime evidence to be admitted as inherently prejudicial. Rule 3:15

- 2(b) provi des that the court may order separate trials if "it appears that a defendant or t he State is prejudiced by a permissible or mandatory joinder of offenses

. . . ." In determining if joinder is prejudicial to a defendant, the court considers whether, if the crimes were tried separately, evidence of the severed offenses "would be admissi ble under [Rule 404(b)] in the trial of the remaining charges." State v. Chenique

- Puey , 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts , 116 N.J. 58 0, 601

- 02 (1 989)); State v. Oliver , 133 N.J. 141, 150

- 51 (1993).10 A

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Defendant argu es he was prejudiced by the charges involving C.M. and J.P. being tried together with those involving M.P. because " the ir simultaneous presentation was clearly capable of infl uencing the jury's deliberations," and the sexual assaults of each sister were "n ot relevant to each other." He contends that the alleged assaults on J.P. and related threats to her and C.M. (counts one through six) occurred on different dates, in differe nt places an d under different circumstances from the alleged assaults on M.P. (co unts seven through nine). We are not persuaded by these arguments. Rule 3:7

- 6 provides: Two or more offenses may be charged in the same indictment or accusation in a separate count for e ach offense if the offenses charged are of the same or similar charac ter 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. Relief from prej udicial join der shall be afford ed as provided by R . 3:15

- 2. Rule 3:15

- 1 provides: (a) Permissible Joinder. The court may order [two] or more indictments or accusations tried together if the offenses and the defendants, if there are [two] or more, coul d have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indict ment or accusation.11 A

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- 2(b), a defendant shall not be subject to separate tr ials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to th e appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue o f a single court. If , however, "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder o f offenses or of defendants in an indictment or accusation, the court may order an election or separate trials of co unts

. . . . "
R. 3:15

- 2(b). Rule 3:15

- 2(c) provides that "[a] motion for separate trial of
counts of an indictment or accusation must be m ade pursuant to R . 3:10

- 2, unless the court, for good cause shown, enlarges the time." We note that n either party moved for se verance here. And, " [t] he decision whether to grant severance rests within the trial court's sound discretion and is entitled t o great deference on appeal." State v. Brown , 118 N.J. 595, 603 (1990). Further, a trial judge has the discretion to "order se parate trials on counts of an indictment if a party is prejudiced by their joinder." Oliver , 133 N.J. at 150. Specifically, "[ t]he test for assessing prejudice is 'whether, assuming the charges were tried separately, evidence of the offense s sought to be severed would be admissible under [ Rule 404(b)] in the trial of the remaining charges.'"
State v. Sterling , 215 N.J. 65, 73 (2 013) (alteration in original) (quoting12 A

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Chenique

- Puey , 145 N.J. at 341 )

. The judge properly tried the charges togeth er. We cons ider next defendant's argument regarding the admission of other bad acts evidence. Rule 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in c onformi ty therewith. Such evidence may be admitted for other purposes, such 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 disput e. Our Sup reme Court has set forth the following criteria for admitting other

crimes evidence under Rule 404(b):

1. The 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 t ime to t he offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice. [ State v. Cofield , 127 N.J. 328, 338 (1992) (citation omitted ).]13 A

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The tr ial court's analysis under Cofield should only be disturbed if there is a " clear error of judgment." State v. Gillispie , 208 N.J. 59, 84 (2011) (quoting State v. Barden 195 N.J. 375, 390

- 91 (2008)). Our careful review of the record reveals th ere was no u ndue prejudice resulting from the joint trial. Here, under the first Cofield prong, defendant's sexual assault of J.P. , and his threats to her and C.M. , are relevant to his sexual assault of M.P. And, defendant's sexual assault of M.P. is rel evan t to his sexual assaults of J.P. and related threats to her and C.M. In a similar vein, defendant's threats to call immigration officials regarding both daughters were based on his knowledge that they were undocumented. We reject defendant's argument tha t these offenses were not part of a common plan or scheme. Under the second Cofield prong, the acts were similar in kind and reasonably close in time. Defendant's sexual assaults of J.P. occurred from mid

2008 through late 2009 in his home. Defendan t's sexual a ssaults of M.P. began in the first six months of 2010, shortly after he sent J.P. to Mexico. Like the sexual assaults on J.P., the acts against M.P. were committed in defendant's home. In both cases, defendant threatened to harm or kill the v icti ms , and manipulated them by taking advantage of their undocumented status as a means of ensuring their silence.14 A

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Under the third Cofield prong, there was clear and convincing evidence to show that defendant committed both sets of crimes. J.P. and M.P. pre sented

c redible and consistent allegations against defendant at trial. C.M. and O.P. confirmed many of these allegations based upon their own personal observations. Moreover, the responding officer's testimony corroborated J.P. and M.P.'s version of the events t hat transpired. Finally, under the fourth Cofield prong, the probative value in this case is not outweighed by any prejudicial effect. The evidence showed the feasibility of defendant sexually assaulting J.P. and M.P. in his home. Further, h is
p ersisten t threats regarding deportation explain why the victims did not immediately come forward. We conclude defendant's claim that other crime evidence has a "unique tendency to turn a jury against the defendant," State v. Reddish , 181 N.J. 553, 608 (20 04) (quo ting State v. Stevens , 115 N.J. 2 89, 302 (1989)) , is overcome by the highly probative evidence here.
B. Stalking and Attempted Kidnapping of M.P. Defendant argues that he was prejudiced by the admission of evidence of his bad acts in stalking a nd a ttemptin g to kidnap M.P. in 2010, for which he was never charged. We are not persuaded by this argument.15 A

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M.P. testified about defendant showing up at two of her workplace s and attempting to force her back to his house. Defendant did not object to he r
te stimony. Bad act evidence must be limited "by confining its admissibility to those facts reasonably necessary" to prove the issue. State v. Fortin , 318 N.J. Super. 577, 598 (App. Div. 1999). Such evidence may not be used to "suggest that because the def endant i s a person of criminal character, it is more probable that he committed the crime for which he is on trial." State v. Weeks , 107 N.J. 396, 406 (1987) (citation omitted)

. M.P.'s testimony was properly admitted. We reiterate that the four Cofi eld
prongs w ere met. Moreover, Stanker's testimony confirmed that M.P. and defendant had an encounter at Burger King. The stalking and kidna p ping episodes show defendant's predatory plan towards M.P. and his repeated opportunities to abduct and assault h er. The act s are also relevant to demonstrate defendant's sexual abuse o f J.P. , and related threats to her and C.M., based upon his paternal and marital con nection to the victims.
C. Threatening, Stalking, and Abusing O.P. and J.P. Next, defendant argues that the jud ge erred in admitting bad act evidence
of his threat to kill O.P., defendant's contacting J.P. while she was in Mexico,16 A

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and evidence of his intoxication on Nove mber 10, 2009 , the same day as one of the sexual assaults of J.P . Again, we reject defendant's arguments. O.P. testified that after he saw defendant emerge from J.P.'s bedroom, defendant repeatedly threatened to have him deported or killed if he told any one. J.P. testified that while in Mexico, she frequently moved because defendant

ca lled her and told her he wanted to visit her. Defense counsel did not object to this testimony. However, State Trooper Brian McCarty testified that defendant was intoxica ted on November 10, 2009, at his home, and defense counsel objected to the character ization of d efendant as being intoxicated. We review the former statements under a plain error standard, but reference to defendant's alleged intoxication is reviewed unde r the harmful error standard. State v. Gorthy , 226 N.J. 516, 539 (2016); R. 2:10

- 2. Under the first Cofield prong, defendant's threats to O.P., his contacting J.P. while she was in Mexico, and evidence of his intoxication were all relevant to the crimes charged. And, his intoxication is relevant as to his state of mind and motive for h is conduct o n November 10, 2009. Under the second Cofield prong, the acts were similar in kind and reasonably close in time to the crimes charged

— they occurred only within a few weeks of the sexual assaults. Under the third Cofield prong, C.M., O.P., and17 A

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J.P. credib ly testified about these acts, and McCarty's testimony established defendant's intoxication. Under the fourth Cofield p r ong, the evidence collectively was high ly probative as to how defendant took advantage of his marital relationship with C.M

. D. Jury Ch arge Next, defendant argues for the first time on appeal, that the judge committed plain error by failing to instruct the jury that each offense must be conside red separately, and evidence regarding some victims cannot be used as evidence that defendant ha d a propensity to commit the offenses r egarding other victims. He also argues that the judge did not properly instruct the jury not to consider the cumulative impact of all of the offenses. The State contends that the testimony regarding defe ndant's visi ts to M.P.'s workplace is not evidence of other crimes because no charges arose from these incidents. Hence, there was no need to instruct the jury on the limi ted purpose for which the jury could consider the statements. At the charge confe rence, neith er defendant nor the State sought a limiting instruction on the other crimes or bad acts evidence, nor did they object to the court's proposed final charge. Be cause defendant did not bring this issue to the attention of the trial judge, we rev iew it under a plain error standard. R. 2:10

-18 A

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2. When we review an issue under the plain error standard, we will not reverse a conviction unless an error committed at tria l was "clearly capable of producing an unjust result

. . . ." Ibid. The error must have been " s ufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. McGuire , 419 N.J. Super . 88, 106

- 07 (App. Div. 2011) (alteration in original) (quoting State v. Taffaro , 19 5 N.J. 442, 454 (2008)). The jury charge did not include any instruction on the use of other crimes or bad acts evidence. And, where multiple charges are tried together a s was the case here, the model jury charge provides for an instruction directing the jury to

con sider the charges separately. See Model Jury Charge s (Criminal), "Multiple Charges" ( rev. Jan. 14, 2013 ). The State argues that defendant has waived this argument by not raising it below. Considering that defendant's visits to the bakery an d Burger Kin g to see M.P. did not result in charges being pressed against defendant, and thus, did not invoke Rule 404( b) , we discern no prejudice or error . Moreover, the evidence against defendant here was overwhelming. Trial errors may be found harmles s when evide nce of guilt is overwhelming. See Gillespie , 208 N.J. at 93 (2011).19 A

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We conclude the error was harmless in light of the strength of the evidence connecting defendant to the crimes. Therefore, we reject defendant's contention.
III.
A. Hearsay Testimony
F or the first time on appeal, defendant contends the trial judge's admission of four instances of "hearsay" testimony was an abuse of discretion resulting in plain error, which violated the hearsay rules. Specifically, he alleges that the judge erred by pe rmitting the following testimony:

(1) M.P.'s testimony that defendant sent her to Mexico; (2) O.P.'s testimony that he learned defendant sexually assaulted J.P.; (3) C.M.'s testimony that she learned defendant sexually assaulted M.P.; and (4 ) McCarty's testimony that he received "alternative information" corroborating the sexual assault of J.P.
Hearsa y is an out

- of

- court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); see also State v. Savage , 17 2 N.J. 374, 402 (2002). We review the admission of evidence employing an abuse of discretion standard.20 A

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At trial, M.P. was asked , "[w]hen [J.P.] was sent to Mexico, at the time, did you know why she was sent to Mexico" and M.P. re p lied "[b]ecause [defenda nt] had sent her." Next , O.P. described the police visit to his home on November 10, 2009. When asked "did you f ind out that defendant sexually assaulted [J.P.]," he replied "[y]es". Further, the prosecutor asked C.M., "[w]as there a point in time that you found ou t that your other daughter, [M.P.] , had been sexually assaulted by the defendant," and she replied "[y ]es". Defense counsel did not object to any of this testimony. Lastly, McCarty testified after he established that defendant had claimed
the November 10 , 2009 incident was related to J.P.'s phone privileges:

Prosecutor: Now you spoke with other parties o n scene, correct? McCarty : Yes.
Prosecutor: And is it true that they provided alternative information regarding what happened? McCarty : Yes

. McCarty d id not specify what this alternative information was, nor did he recite statements from others. Again, defense counsel did not object. Because none of the testimony was hearsay, there was no error in admitting it. M.P. testified based upon h er own perso nal knowledge. O.P.'s21 A

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testimony was not offered to prove that the sexual assault happened but to desc ribe his own perception and recollection surrounding the sexual assault and to establish when he became aware of the allegations made by his s ister. C.M. 's testimony indicated when she became aware of the accusations against defendant, not to prove that t he sexual assault occurred. Lastly, McCarty's testimony was not hearsay because he merely recounted his observations and experiences in respo nding to an emergency and simply acknowledged there were conflicting reports.
B. Opinion Testimony Next, defenda nt argues that the judge committed plain error by admitting opinion testimony by McCarty about J.P. sustaining injuries consistent with an

ass ault on Nove mber 10, 2009. At trial, the prosecutor asked McCarty about his investigation on November 10, 2009: " [ C ] ould you observe any signs of injury on [J.P.] that would have corroborated the allegation of simple assault?" He replied "[y]es," and de scribed the bruises on J.P.'s neck, face, and arms which led him to arrest defendant for simple assault. Defendan t did not object to this testimony, and therefore, we review it under the plain error standard. Under Rule 701, if a witness is not testifyin g as an expe rt, the witness's testimony in the form of opinions or inferences may be admitted if it " (a) is22 A

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ration ally based on the perception of the witness and (b) will assist in understanding the witness's testimony or in determining a fact in issue. " "Courts in N ew Jersey have permitted police officers to testify as lay witnesses, based on their personal observat ions and their long experience in areas where expert testimony might otherwise be deemed necessary." State v.
LaBrutto , 114 N.J. 187, 198 (19 89). Howeve r, a police officer may not provide testimony on the ultimate issue of guilt or innocence. State v. M cLean , 205 N.J. 438, 461 (2011); State v. Odom , 116 N.J. 65, 77 (1989). Here, McCarty merely reported his observations of J.P.'s injuries bas ed upon his perception and lay observation. He did not opine as to defendant's guilt and therefore, we reject def endant's contention.
C. Best Evidence Rule Next, defendant argues that the judge erred in allowing Stanker to testify about the contents of the Burger K ing surveillance video despite it not being played to the jury, in violation of the best evidence rule. N.J.R.E. 1002. Stanker explained that afte r speaking with M.P. at the Burger King, he viewed the restaurant's surveillance tape. He testif ied that ,

th e surveillance showed [M.P.] pulling into the parking lot at which time [defendant] pulled up alongside of her vehicle, where they had a short conv ersation. [M.P.] pulled into a parking spot [,] and [defendant] pulled the23 A

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-- she exited her vehicle to go into the Burger King. He later backed his van up into the parking spot adjacent to hers across from the next ro w of spots. And while she was inside the Burger King, the surveillance revealed that, you know , he pulled forward and back several times. It appeared as though he was trying to watch her through the windows of the Burger King. And then he later exited his vehicle and walked into the Burger King. Once in there, the surveillance showed him exiting the doors to the west side of the Burger King, and he went south. There's a lot on the north side and a lot on the south side as well. He walked out toward t he lot on the south side. And that's as far as we could see on the surveillance. Stanker test ified that h e was unable to obtain a copy of the surveillance tape. Defendant objected to Stanker's testimony, but the judge allowed the testimony because the video's contents were described in Stanker's police report, and he was subject to cross

- examinat ion.
We revi ew a trial court's evidentiary rulings for abuse of discretion. Gorthy , 226 N.J

. at 539. Thus, "trial courts are granted broad discretion in makin g decisions regarding evidentiary matters . . . ." State v. Scharf , 225 N.J 547, 572 (2016) (cit ations omitt ed)

. This court will reverse an evidentiary ruling only if it "was so wide off the mark that a manifest denial of justice resulted."24 A

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Griffin v. C ity of E. Orange , 225 N.J. 400, 413 (2016) ; Green v. N.J. Mfrs. Ins.
Co. , 160 N.J. 480, 492 (1999 ). The "best evidence" provisions in Rule 1002 , provide that " [t] o prove the content of a writing or photograph, the original writing or photograph is required except as otherwise provided in these rules or by statute." Rule 1001(b) clarifies that video t apes fall wi thin the purview of Rule 1002. However, Rule 1004 provides:
T he original is not required and other evidence of the

contents of a writing or photograph is admissible if: (a) Originals lost or destroyed. All originals are lost or have been de stroyed, unl ess the proponent lost or destroyed them in bad faith; or (b ) Original not obtainable. No original can be obtained by any available judicial process or procedure or by other available means.

. . . A criminal defendant must demonstrate any prejudice as a result of the prosecution's negligent loss or destruction o f evidence in order to bar the State from presenting testimony regarding that evidence

. California v. Trombetta , 467 U.S. 479, 488

– 91 (1984); State v. Hollander , 201 N.J

. Super

. 453 , 478

– 80 (Ap p. Div. 1985); State v. Serret , 198 N.J. Super

. 21, 26

– 27 (App. Div. 1984); State v. Washington , 165 N.J. Super 149, 155

– 56 (App. Div. 1979).25 A

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W here evidence is not being offered to prove the truth of its contents, but rather as corroborative ev idence of fa cts in evidence as here, testimony regarding the contents will suffice. Nerney v. Garden State Hosp. , 229 N.J. Super. 37, 39 (App. Div. 1988) . Here, the testimony about the contents of the surveillance video was not offered for its substantiv e truth, but rather to corroborate M.P.'s testimony that she had an e ncounter with defendant at Burger King. Thus, under Nerney , we conclude Stanker's testimony was corroborative and permissible. Furthermore, d efendant has not demonstrated substantial pre judice arisi ng from the absence of the video or from Stanker's testimony regarding its contents

. The surveillance video was not referenced to prove that he committed any of the crimes alleged , as none of the ch arges against defendant arise from the Burger King incide nt , but merely corroborated M.P.'s testimony that she spoke with defendant at Burger King. Therefore, we reject defendant's argument.
D. Testimony Aimed at the Jury's Emotions Next, defendant argues reversal is required because the prosecutor elicited
irr elevant and inflammatory testimony about J.P.'s loss of virginity, her difficulty in testifying, and her views about defendant. No objection was raised at trial. He also argues J.P. characterized h im as "a wolf" and claims the court26 A

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abused it s discretion in admitting the testimony, over objection. J.P. testified that losing her virginity to defendant was the "worst feeling in the world," and it was not easy to share this information with strangers on the jury. During cross

- examination, defen se counsel a sked J.P. if she had heard of the children's s tory "The Boy Who Cried Wolf," and implied that J.P. was similar to the main character because she had initially lied to police about the encounters with defendant. Later, J.P. testified on redirec t:

Prosecuto r: [Defense counsel] also used an analogy abou t The Boy That (sic) Cried Wolf. And didn't

-- and you're familiar with that story, aren't you?
J.P: Yes.

. . . . Prosecutor: Has there always been a wolf in this case?
J.P: Yes.
Prosecutor: A nd who is th at wolf? J.P.: [Defendant.] We consider the first three statements under the plain error standard, R ule
2:10

- 2, because there was no objection, but J.P.'s characterization of defendant as a wolf is considered under the abuse of discretion st andard in li ght of the objection raised. See Gorthy , 226 N.J. at 539.27 A

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Statements intended to arouse sympathy for a witness and anger toward a defendant are not permitted. State v. Timmendequas , 161 N.J. 515, 693 (1999), ( citing State v. W.L. , 292 N.J. S uper. 100, 1 10

- 11 (App. Div. 1996)). I t is improper to re fer to defendants as animals or engage in derogatory name c alling. State v. Williams , 113 N.J. 393, 455 (1988)

. However, i n State v. T.E. , 342 N.J. Super. 14, 27 (App. Div. 2001), the court allowe d graphic te stimony by the child victim in a sexual assaul t case over the defendant's objection that the State used the victim as a "trial tool" to evoke the jury's sympathy. Here, J.P.'s statements do not rise to the level of being prejudicial or
inflam matory. Her testimony was relevant to material facts in t he determination of defendant's guilt. J.P.'s statements about virginity demonstrate her moral character and her unwillingness to have sexual relations with defendant. Even where evidence is highl y damaging t o a defendant's case, this cannot serve as an independent basis to exclude otherwise admissible and probative evidence. State v. Brockington , 439 N.J. Super. 311, 333 (App. Div. 2015 ). J.P.'s testimony referring to defendant as a "wolf" was no t error beca use it showed her sexual acts with defendant were not consensual. And, it was in response to defense counsel's characterization of J.P. as a "girl who cried wolf." Therefore, we reject defendant's arguments.28 A

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in her opening statement to the jury, said the case was about "fear, threats, and control" over the family. Further, the prosecutor stated defendant purchased J.P.'s plane ticket to Mexico, and her return was on e of C.M.'s "biggest fears." The prosecutor al so stated that C.M. and J.P. initially lied to police in November 2009 and denied sexual abuse by defendant but later told the police defendant "did something very similar" to J.P. as he had done to M.P. Thes e statements did not elicit any objections.
In our review, we must determine whether the statement s complained of wrongly contributed to defendant's conviction. See State v. Bankston , 63 N.J. 263, 272 (1973). Defendant contends that the statement s amount ed to
miscon duct requiring reversal. While pro secutors occupy a special position in our system of criminal justice, see, e.g. , State v. Daniels , 182 N.J. 80, 96 (2004), they are nevertheless entitled to zealously argue the merits of the State's c ase. Sta te v. Smith , 212 N.J. 365, 403 (2012). "The duty of the prosecutor 'is as much . . . to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Ibid. (alteration in or iginal) (qu o ting State v. Frost , 158 N.J. 76, 83 (1999)).29 A

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Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct m ust have be e n 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith 167 N.J. 158, 181 (2001) (quoting Frost , 158 N.J. at 83). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jack son , 211 N. J . 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." Smith , 212 N.J. at 407. Following our review of the record, we conclude any error by including these statements by the prosecutor w as harm less. We w e igh heavily the fact that the comments did not evoke an objection or a subsequent request for a curative instruction. Defendant also argues the prosecutor's summation improperly suggested he used "smoke and mirrors" regarding his erectile dysfu nction to s h ift focus from "the actual proofs." Again, this statement did not elicit any objection. Prosecutors may not "make inaccurate legal or factual assertions during a trial" and "must confine their comments to evidence revealed during the trial an d reasonabl e inferences to be drawn from that evidence." Smith , 167 N.J. at 178.30 A

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We again conclude any error by including this statement in summation by the prosecutor was harmless. And, no objection having been made to the remarks, we deem the remarks n ot to be pr e judicial. Timmendequas , 161 N.J. at 576.
V. Next, defendant claims that the cumulative effect of the trial errors undermined his rights to due process and a fair trial warranting reversal of his conviction. Defendant's argument is devoid of m erit. The c u mulative effect of trial errors may merit reversal when it "casts doubt on the propriety of the jury verdict that was the product of that trial." State v. Jenewicz , 193 N.J. 440, 474 (2008). Reversal may be justified when the cumulative effec t of a seri e s of errors is harmful even if each error itself is harmless. Ibid. "[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair."
State v. Wakefield , 190 N.J. 397, 5 38 (2007)

. Our careful review of the record convinces us that there is no cumulative effect of any trial errors warranting reversal.31 A

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. A. Sentence Defendant contends that his sentence was excessive. Again, we disagree. He contends the se ntencing ju d ge failed to apply mitigating factors, ordered restitution for a non

- victim, failed to conduct a hearing and make findings on certain penalties assessed, and unconstitutionally imposed the $30 per month
SOSF penalty. When we review a sentence, we do not s ubstitute our own judgment for that of the sentencing court. State v. Natale , 184 N.J. 458, 489 (2005). We limit our inquiry to whether the sentencing guidelines were followed, whether there

was competent and credible evidence supporting the application of the guidelines, and whether the sentence shocks the judicial conscience. Ibid. The sentencing judge found aggravating factors one, the nature and circumstances of the offense, N.J.S.A. 2C:44

- 1(a)(1); three, the risk of reoffending, N.J.S. A. 2C:44

- 1(a )(3); and n i ne, the need for deterrence, N.J.S.A.
2C:44

- 1(a)(9). The judge found mit igating factor seven, because defendant had a criminal history, but it was primarily for old disorderly persons offenses,
N.J.S.A. 2C:44

- 1(b)(7).32 A

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The court im posed a sent ence of thirty

- eight years of which thirty

- four
years are subject to NERA. The sente nce included consecutive sentences of eighteen years subject to NERA for count one, four years for count four, eight years subject to NERA on counts seven and nine, and co ncurrent sentences on the remaining counts. Defendant does not contest the aggrava ting factors; however, he argues the judge erred in failing to address mitigating factors eight through twelve. "[M]itigating factors that are suggested in th e record, or are called to the court's attention, ordinarily should be considered and either embr aced or rejected on the record." State v. Blackmon , 202 N.J. 283, 297 (2010). A trial court need not, "explicitly reject each and every mitigating factor arg ued by a def endant." State v. Bieniek , 200 N.J. 601, 609 (2010). The sentencing judge reviewed defendant's history and concluded his conduct surrounding the crimes was "appalling." The judge also noted defendant preyed upon the victims' "perceived vulne rability to deportation." The record reflects that the sentencing judge considered the mitigatin g factors and its basis for rejecting them was implicit in its reasoning. We discern no error in the application of the guidelines and the sentence imposed do es not shock the judicial conscience.33 A

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B. Restitution Next, defendant argues the sentencing judg e erred in imposing restitution
for a non

- victim and in doing so without a hearing. We agree. The VCCO submitted a letter to the judge stating it paid $1470 for M.P.'s
p sychological counseling bills in this matter and requested restitution in that
amount . Defendant did not challenge the legitimacy or amount of the bills. His presentence report stated he had no assets or income.
Pursuant to N.J.S.A. 2C:43

- 3, the victim of a crime is entitled to receive restitution from the offender at the time of sentencing. Further, "[t]he court shall . . . order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the [VCCO] 2

. "
He re, defendan t's ability to pay restitution was disputed because he had no assets or income. The sentencing judge made no findings on this issue. Therefore, we remand to the sentencing judge to conduct a hearing relative to imposing restitution for a non

- victim and w hether a VCCO penalty is warranted

.

2 In 2008, the Violent Crime Compensation Board was renamed the Victims of Crime Compensation Office. NJ Victims of Crime Compensation Office

– 2016 Annual Report , https://www.njleg.state.nj.us/OPI/Reports_ to_the_Legislature/ victims_of_crime_ar_2016.pdf

.34 A

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C. SCVTF Penalty Defendant also challenge s the sentencing judge's imposition of a $3000 penalty payable to the SCVTF without a hearing or making any findings. The sex offender penalty amounts listed in N. J.S.A. 2C:14

- 10 are the maximum penalties the court may impose. See State v. Bolvito , 217 N.J. 221, 224 (2014). In fixing the penalty amount, the court should consider the nature of the offense and the defendant's ability to pay. Id. at 233

- 35. The cou rt should

en ter a statement of reasons as to the amounts imposed. Id. at 224; State v.
New man , 132 N.J. 159, 170 (1993); State v. Ferguson , 273 N.J. Super. 486, 499 (App. Div. 1994 ). Here, defendant's presentence report indicate s that defendant does not
h ave the abil ity to pay any fines or restitution. Nonetheless, contrary to Bolvito , the sen tencing judge made no findings as to his ability to pay and entered no statement of reasons as to the amounts imposed. Therefore, we reverse and remand for a hearin g on th e SCV TF penalty

. D. SOSF Penalty Lastly, defendant argues a remand is required bec ause the $30 per month SOSF penalty was improperly imposed as an ex p o st facto law because the law establishing this penalty, N.J.S.A. 30:4

- 123.97, was not effective until July 1,35 A

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2014, more than four years after the last alleged incident in this case

. He also alleges that the penalty should not be imposed because he had no income, and by its plain language, the penalty "shall not be assessed . . . if the person's in come does no t exceed 149 percent of the federal poverty level

. " N.J.S.A. 30:4

- 123.97.
At sentencing, the judge correctly found that the SOSF penalty was not applicable because the offense was committed before the effective date of
N.J.S.A. 30:4

- 123.9

. However, the JOC indicates that a $30 per month SOSF penalty was imposed under N.J.S.A. 30:4

- 123.97. We reverse and on remand, direct the sentencing judge to remove the SOSF penalty and amend the JOC accordingly. Affirmed in part, reversed and remande d in part fo r further proceedings consistent with ou r opinion . We do not retain jurisdiction.