RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0359-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.M.,

Defendant-Appellant.

______________________________

Argued June 5, 2018 - Decided 

Before Judges Fisher, Sumners, and Natali.

On appeal from Superior Court of New Jersey, 

Law Division, Gloucester County, Indictment 

No. 11-08-0763.

Daniel S. Rockoff, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, attorney; 

Daniel S. Rockoff, of counsel and on the 

briefs).

Douglas B. Pagenkopf, Assistant Prosecutor,

argued the cause for respondent (Charles A. 

Fiore, Gloucester County Prosecutor, 

attorney; Douglas B. Pagenkopf, on the brief).

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NOT FOR PUBLICATION WITHOUT THE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.

July 31, 2018
2 A-0359-15T3

An indictment charged defendant R.J.M. with three offenses: 

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

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

(count two); and endangering the welfare of a child, N.J.S.A. 

2C:24-4(a) (count three). A jury acquitted defendant on count two 

but was unable to reach a verdict on counts one and three. The 

State retried defendant and a second jury convicted him on those 

counts. The trial court sentenced defendant to a sixteen-year 

prison term for count one, subject to the No Early Release Act, 

N.J.S.A. 2C:43-7.2, and a four-year concurrent prison term for 

count three. Defendant was also sentenced to five years mandatory 

parole supervision and parole supervision for life. Defendant 

appeals his conviction, sentence, and various pre-trial and trial 

rulings. He argues: 

POINT I

BECAUSE A POLICE INTERROGATOR IGNORED 

[DEFENDANT]'S UNAMBIGUOUS REQUEST FOR 

COUNSEL, THIS COURT MUST REVERSE THE DENIAL 

OF THE MOTION TO SUPPRESS [DEFENDANT]'S 

STATEMENT. U.S. Const., AMENDS. V, XIV.

POINT II

THIS COURT MUST ALSO REVERSE THE DENIAL OF

THE MOTION TO SUPPRESS [DEFENDANT]'S STATEMENT 

FOR REASONS RELATED TO INTERROGATORS'

CONFRONTATION OF [DEFENDANT] WITH A POLYGRAPH. 

U.S. Const., AMENDS. V, XIV.
3 A-0359-15T3

A. [Defendant] did not 

intelligently waive his right to 

silence before he took the 

polygraph. 

B. Interrogators coerced unreliable

responses from [Defendant] only by 

confronting him with a fabrication 

of scientifically-certain proof of 

guilt, whereupon [Defendant] tried 

to reconcile his own inconsistent

memory with that pseudoscientific

fabrication. 

C. The trial court's so-called 

"cure" - admitting [Defendant]'s 

statement while hiding from the jury 

how interrogators used a polygraph 

to elicit the statement - was

totally inadequate, as it left 

[Defendant] with an unacceptably 

prejudicial dilemma. 

POINT III

THE COURT ERRED BY DENYING [DEFENDANT]'S 

REQUEST FOR A SECOND-DEGREE N.J.S.A. 2C:14-2B 

CHARGE AS A LESSER ALTERNATIVE TO THE FIRSTDEGREE N.J.S.A. 2C:14-2A(l) CHARGE. U.S. 

Const., AMENDS. V, XIV; N.J. Const., ART. I, 

¶¶ 1, 9, 10.

POINT IV

THE CUMULATIVE PREJUDICE OF REPETITIOUS OUTOF-COURT HEARSAY ADMITTED PURSUANT TO

N.J.R.E. 803(C)(27) AND N.J.R.E. 803(C)(4)

OVER THE DEFENDANT'S OBJECTIONS DENIED

DEFENDANT A FAIR TRIAL. U.S. Const., AMENDS. 

V, XIV; N.J. Const., ART. I, ¶¶ 1, 9, 10.

POINT V

AFTER THE FIRST JURY'S VERDICT, THE DOCTRINE

OF COLLATERAL ESTOPPEL, ALSO KNOWN AS ISSUE

PRECLUSION, BARRED THE STATE FROM RE-ARGUING
4 A-0359-15T3

AT THE SECOND TRIAL THAT [DEFENDANT] ACTED

PURPOSELY. THE STATE'S UNFAIR REPETITION OF

THIS CLAIM, WHICH THE STATE HAD ALREADY

LITIGATED AND LOST AGAINST [DEFENDANT] AT THE 

FIRST TRIAL, UNFAIRLY DILUTED [DEFENDANT]'S 

DEFENSE THAT ANY IMPROPER CONTACT HAD BEEN AN 

ACCIDENT. U.S. CONST., AMENDS. V, XIV; N.J. 

Const., ART. I, ¶¶ 1, 9, 10.

POINT VI

THIS MATTER SHOULD BE REMANDED FOR

RESENTENCING, BECAUSE THE COURT FOUND

IMPROPER AGGRAVATING FACTORS, AND FAILED TO

FIND RELEVANT MITIGATING FACTORS. 

After a thorough review of the record, we conclude that 

defendant did not invoke his right to counsel and, thus, his 

subsequent inculpatory statements were appropriately admitted by 

the trial court. We also disagree with defendant's claims that 

he did not intelligently and voluntarily waive his Miranda1 rights 

and we find no error in the trial court's redaction of the recorded 

interrogation. We conclude, however, that the trial court erred 

in refusing to charge the jury on the lesser-included offense of 

second-degree sexual assault. We find no error with the trial 

court's evidentiary rulings with certain exceptions to be 

addressed on remand, and no merit to the State's collateral 

estoppel argument. Accordingly, we affirm in part, reverse in 

part and remand.

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
5 A-0359-15T3

I.

Defendant's wife ran a daycare center out of her home that 

J.C., the victim, began attending when he was a one-year-old child. 

Approximately three years later, defendant took a disability leave 

from his job and was at home more frequently during the day. 

Defendant's wife claimed that despite his increased presence in 

the home, defendant had no involvement with the daycare center's 

business but acknowledged that he interacted with J.C. 

occasionally such as tickling him and blowing "raspberries" on his 

stomach. 

When J.C. was four, he told his father that "[defendant] bit 

my peepee and it hurt," a statement he repeated to his mother. 

The next day, J.C.'s parents took him to the police station where 

a detective conducted a recorded interview. Although J.C. did not 

repeat the allegations to the detective, when the detective left 

the room J.C. repeated the statement to his mother while the camera 

was still active. J.C. also repeated the allegation to a child 

abuse pediatrician who performed a physical examination. At both 

the first and second trials, J.C. testified that defendant touched 

him with his hands, not his mouth.

When defendant was questioned at the police station the next 

day, he was read his Miranda rights and repeatedly proclaimed his 

innocence during the five-hour interrogation. During the first 
6 A-0359-15T3

portion of his interrogation, the detectives asked defendant about 

taking a polygraph exam and he indicated that although "nervous" 

he "should do well" on it. After agreeing to the polygraph exam, 

defendant spoke to a different interrogator from the State Police 

polygraph unit. According to the trial court, after it reviewed 

the videotaped interrogation, this discussion occurred as the 

detective set up the polygraph equipment:

Detective: Okay . . . I can't just hook you 

up and start asking you questions, I have to 

do an interview beforehand, I have to get 

basic information that you've probably already 

given to the detectives, and I apologize if 

it's redundant . . . [B]ut before we start 

doing that, I have to . . . read you your 

Miranda rights, I know they already [did] it 

to you?

Defendant: Mmm-mmm.

Detective: Okay, I have to do that again, just 

because my department requires it, and it's 

also a polygraph consent form. You know 

polygraph is voluntary?

Defendant: Mmm-mmm.

Detective: Okay, nobody can force you to take 

it.

Defendant: Right.

Detective: Okay, so I'm gonna read this to you 

and get this out of the way and then we'll go 

from there, because I have to ask you 

questions. . . .

Defendant: My one, one of my main concerns, 

I, I'm wondering, I want to take [the 
7 A-0359-15T3

polygraph exam] because, I, I, know I didn't 

do anything. . . .

Detective: Uh-huh.

Defendant: But, I mean, I don't know if I have 

to have a lawyer?

Detective: You wanna what?

Defendant: A lawyer.

Detective: That's up to you, I can't, I can't 

give you any kind of advice regarding that, I 

mean if you didn't do anything, if you did 

nothing wrong, um, you take the polygraph 

test, you clear your name from this case, and 

you move on.

Defendant: Okay.

Detective: If you think you need a lawyer, if 

you decide you want a lawyer, then. . . .

Defendant: What is that, I don't think I need 

a lawyer . . . but . . . I mean. . . .

Detective: If you think you need a lawyer . . 

. if you . . .

Defendant: I feel, I, I don't want to okay to 

something that. . . .

Detective: If you want a lawyer, then that's 

something that you'll have to tell me and then 

I'm not allowed to talk to you.

Defendant: Well I'll take it, I, I have no 

reason to uh, I mean, I have nothing to uh, 

hide. 

Defendant was read his Miranda rights again and signed a 

polygraph consent form. After the exam was completed, the 

detective advised defendant that he failed the test. Upon hearing 
8 A-0359-15T3

the results, defendant made incriminating comments that his mouth 

might have unintentionally touched J.C.'s penis when he was 

tickling and wrestling and rolling around with him. Defendant 

agreed to write an apology letter to J.C. and stated he was "very 

sorry" and that he "never meant for that [oral contact] to happen." 

After completing the letter, defendant was arrested. 

In his first point, defendant argues that he made an 

unequivocal request for counsel that the trial court erroneously 

characterized as ambiguous. We disagree and conclude that rather 

than invoking counsel, defendant merely sought advice from the 

detective. 

An accused must be advised of his right to remain silent and 

to have a lawyer present, and if that right is asserted, it must 

be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104 

(1975). An accused that has expressed his desire to deal only 

with police through counsel may not be further interrogated until 

such counsel is present, "unless the accused himself initiates 

further communication, exchanges, or conversations with the 

police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). In New 

Jersey, "an equivocal request for an attorney is to be interpreted 

in a light most favorable to the defendant." State v. Chew, 150 

N.J. 30, 63 (1997), overruled on other grounds, State v. Boretsky, 

186 N.J. 271 (2006). 
9 A-0359-15T3

When an accused makes an ambiguous statement that may be 

construed as an assertion of his Miranda rights, the police are 

permitted to ask follow up questions "designed to clarify the 

meaning of those words." State v. Alston, 204 N.J. 614, 623 

(2011). Put another way, if "'following an equivocal indication 

of the desire to remain silent,' the police are reasonably unsure 

whether the suspect was asserting that right, they 'may ask 

questions designed to clarify whether the suspect intended to 

invoke his right to remain silent.'" State v. Johnson, 120 N.J. 

263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836, 

841-42 (11th Cir. 1987)). 

Under Miranda, such questioning aimed at clarification is 

"not considered 'interrogation' . . . because it is not intended 

to 'elicit an incriminating response from the suspect.'" Johnson, 

120 N.J. at 283 (quoting Christopher, 824 F.2d at 842 n.16). "The 

rule permits only clarification, not questions that 'operate to, 

delay, confuse, or burden the suspect in his assertion of his 

rights. Because such questions serve to keep the suspect talking, 

not to uphold his right to remain silent, they constitute unlawful 

"interrogation," not permissible clarification.'" Id. at 283-84 

(quoting Christopher, 824 F.2d at 842). 

Defendant's claim that he unambiguously requested an attorney 

is belied by a review of the relevant exchange in its entirety, 
10 A-0359-15T3

as opposed to a truncated version in which words and phrases are 

improperly parsed. Only if we view the colloquy — "you wanna 

what?",2 "a lawyer" — in complete isolation, and by consciously 

 

2 We reviewed the same unredacted videotape considered by the 

trial court. After our review, we have concluded that the relevant 

colloquy between defendant and the detective represented in the 

transcript submitted by the parties on appeal is incorrect. The 

accurate colloquy reads:

Defendant: But, I mean, I don't know if I have 

to have a lawyer?

Detective: You don't know what?

Defendant: A lawyer.

We acknowledge that the factual findings of a trial court in 

support of the grant or denial of a motion to suppress "must be 

upheld when 'those findings are supported by sufficient credible 

evidence in the record.'" State v. S.S., 229 N.J. 360, 374 (2017) 

(quoting State v. Gamble, 218 N.J. 412, 424 (2014)). In S.S., the 

Court "cautioned that a trial court's factual findings should not 

be overturned merely because an appellate court disagrees with the 

inferences drawn and the evidence accepted by the trial court or 

because it would have reached a different conclusion." Ibid. 

Rather, absent findings that are "so clearly mistaken that the 

interests of justice demand intervention and correction," we 

should not disturb the factual findings of a trial court. Ibid.

(quoting Gamble, 218 N.J. at 425).

Our independent review of the videotape does not alter our 

determination that defendant's statement was not an invocation of 

counsel, ambiguous or otherwise. In other words, whether the 

exchange included the phrase "you wanna what?" as reflected in the 

transcript or "you don't know what," defendant was not invoking 

his right to counsel but was clearly asking for advice. Thus, the 

trial court's incorrect factual finding on this point was not "so 

clearly mistaken that the interest of justice demand intervention 

and correction," Ibid. (quoting Gamble, 218 N.J. at 425), because 

it nevertheless correctly characterized defendant as asking the 

interrogating officer for "advice on whether he needed an 

attorney."
11 A-0359-15T3

ignoring the previous statement, could one conclude the request 

for counsel was unambiguous. His initial statement — "But, I 

mean, I don't know if I have to have a lawyer?" — is presented as 

a question and evidences an attempt to seek advice from the 

detective on the necessity of counsel. The follow-up question and 

answer was connected to defendant's request for legal advice. 

The relevant colloquy is similar to the permissible 

interrogation in Messino and Alston. In Messino, 378 N.J. Super. 

at 573, during a cigarette break, the defendant asked, "Do you 

think I need a lawyer?" The police officer advised defendant 

"that it was his responsibility to tell defendant that he had a 

right to have a lawyer, but 'that was his call.'" Not 

surprisingly, we found that defendant "merely asked" the 

interrogator if he needed a lawyer and that "[this] inquiry . . . 

may be distinguished from other statements considered to be 

requests for counsel." Id. at 578. We held the statement was not 

a request for counsel, ambiguous or otherwise, but was a mere 

request for advice. 

 In Alston, 204 N.J. at 618, the Court concluded defendant's 

statements, "Should I not have a lawyer in here with me?" and "No, 

I am asking you guys, man. I don't - I'm just - I see you guys, 

man," were not unambiguous requests for counsel. The Alston Court 

also concluded that the officer's immediate response — "That's on 
12 A-0359-15T3

- that's on you. If you want a lawyer, then we - stop and you 

going to get your lawyer. . . . If you want to stop at this time 

then we stop at this time." — was both a "fair recitation" of 

defendant's Miranda rights and "permissible clarification." Id.

at 617-618, 628.

Again, defendant's statement — "But, I mean, I don't know if 

I have to have a lawyer?" — was posed as a mere question to the 

detective in an attempt to seek advice. While we recognize that 

an ambiguous request for counsel is "to be interpreted in a light 

most favorable to the defendant," Chew, 150 N.J. at 63, when we 

read the colloquy as a whole we cannot escape the conclusion that 

defendant's statement was not an invocation of counsel, ambiguous 

or otherwise. Further, the detective's immediate response —

"That's up to you, I can't, I can't give you any kind of advice 

regarding that. . . ." — was an appropriate effort to explain to 

defendant that the detective could not advise whether counsel was 

necessary. 

To the extent that defendant's statements may be viewed as 

an ambiguous invocation of his right to counsel, we agree with the 

trial court that the detective appropriately clarified defendant's 

request and did not impermissibly "delay, confuse, or burden" him. 

Johnson, 120 N.J. at 283. Without delay, the detective promptly 

advised defendant that she could not give him advice and indicated 
13 A-0359-15T3

that, if he was requesting a lawyer, he had to tell her. Simply, 

the lack of burden placed upon defendant is highlighted by the 

detective's sharp response that he had to tell her if he wanted 

to invoke his rights and obtain counsel. Further, the entire 

reason the detective was in the room with defendant was because 

he had voluntarily agreed to take the polygraph exam. Therefore, 

we conclude that during the relevant colloquy the detective did 

not implant or force the idea of the exam onto defendant. Rather, 

he had already expressed a willingness to take the exam and thus 

under these circumstances the detective's comments did not try to 

"delay, burden or confuse" his right to counsel.3

II.

Defendant argues in Point II that (1) he did not voluntarily 

waive his right to take the polygraph, (2) the detectives coerced 

unreliable responses, and (3) the trial court's redaction of

references to the polygraph in the recorded interrogation shown 

to the jury was in error. We disagree. 

 

3 We also observe that the detective's statement, "If you want a 

lawyer, then that's something that you'll have to tell me and then 

I'm not allowed to talk to you" is not a precise characterization 

of the Miranda warnings. But, in light of defendant having been 

previously Mirandized and clearly understanding and waiving his 

rights, we conclude this comment did not in any way confuse him. 

In this regard, we are mindful that "interrogating officers, when 

engaged in communications with suspects, most often use language 

that is also more like that of the suspect than the precise and 

pristine elocutions of the . . . Oxford don." Alston, 204 N.J. 

at 627. 
14 A-0359-15T3

A valid waiver requires the State to show beyond a reasonable 

doubt that the accused's waiver was "voluntary, knowing, and 

intelligent." State v. Hubbard, 222 N.J. 249, 265-67 (2015) 

(quoting State v. Hreha, 217 N.J. 368, 382 (2014)). An involuntary 

confession may result from physical or psychological coercion; 

however, "use of psychologically oriented interrogation techniques 

is not inherently coercive." State v. Cook, 179 N.J. 533, 562 

(2004). Whether the State has shown beyond a reasonable doubt 

that a waiver was voluntary should be determined by assessing the 

"totality of the circumstances" which "includ[es] both the 

characteristics of the defendant and the nature of the 

interrogation." State v. Galloway, 133 N.J. 631, 654 (1993). 

Further, relevant factors in making this determination include 

"the suspect's age, education and intelligence, advice concerning 

constitutional rights, length of detention, whether the 

questioning was repeated and prolonged in nature, and whether 

physical punishment and mental exhaustion were involved." Ibid. 

Courts should also consider "defendant's previous encounters with 

law enforcement" and the period of time that has elapsed between 

the administration of Miranda rights and the defendant's 

confession. Hreha, 217 N.J. at 383.

First, defendant argues that he did not intelligently waive 

his right to silence prior to the polygraph exam. His contention 
15 A-0359-15T3

is based upon his conversation with the detective as she was 

setting up the polygraph exam and after he waived his Miranda

rights where he asked, "If I don't take this test . . . what is 

my next step, am I just automatically guilty?" The interrogator 

responded "I don't know," and offered to get the detective working 

on the case to come talk to defendant. Defendant declined but 

continued asking what other options he had if he walked out of the 

interrogation room, leading the interrogator to state that, if he 

left the room, his name would not be cleared and that it would 

make J.C.'s story "more believable." Defendant then decided to 

take the polygraph. 

Defendant relies on State v. Pillar, 359 N.J. Super. 249, 268 

(App. Div. 2003), where we held that the defendant's Miranda waiver 

was not valid because the officer's "acquiescence to hear an 'offthe-record' statement" from the defendant, which the officer knows 

cannot be "off-the-record," "totally undermines and eviscerates 

the Miranda warnings." But, here, the detective responded to 

defendant's inquiry that she did not know if he would be 

automatically guilty because she was not the detective working on 

the case. Thus, the detective did not make any affirmative 

assertions that defendant would be guilty if he did not take the 

polygraph exam and did not attempt to undermine defendant's Miranda
16 A-0359-15T3

warnings. Also, defendant understood that he did not have to take 

the test when he stated "I want to know what options I have if 

. . . I was to just walk out of here."

Second, defendant contends that the detective coerced 

unreliable responses from him by "confronting him with a 

fabrication[] [of] scientifically-certain proof of guilt." Our 

Supreme Court has recognized the questionable reliability and 

accuracy of polygraph tests. See State v. A.O., 198 N.J. 69, 83-

84 (2009); see also State v. Domicz, 188 N.J. 285, 313 (2006) 

(recognizing that "serious questions about the reliability of 

polygraph evidence remain"). Here, defendant takes issue with the 

detective's statements that polygraphs are a "scientific 

instrument" that is "97% accurate" and that his nervousness would 

not impact the test. 

We disagree with defendant's attempt to compare the present 

matter to cases where the police fabricated tangible evidence to 

elicit a confession. See State v. Chirokovskcic, 373 N.J. Super. 

125, 129, 133-34 (App. Div. 2004) (upholding suppression of 

confession on the basis of coercion because the police fabricated 

a laboratory report to fictitiously indicate the defendant's DNA 

was found at the crime scene); State v. Patton, 362 N.J. Super. 

16, 18, 49 (App. Div. 2003) (holding the defendant was coerced 

when the police fabricated an audio tape depicting a fake eye-
17 A-0359-15T3

witness to the crime). The detective here did not fabricate the 

results of the polygraph test. Defendant simply failed the test 

and the results were used to show that he was not being truthful 

in the interrogation. See State v. R.T., 411 N.J. Super. 35, 45-

46 (App. Div. 2009) (finding that "the specific use of the voice 

stress analyzer to point out to defendant that it appeared he was 

not being entirely candid in his denial of the allegations, does 

not rise to the level of trickery by resorting to fabricated 

evidence of the type that we disapproved in [Patton, 362 N.J. 

Super. at 31-49]").4 

 

4 A survey of the case law outside of New Jersey supports the 

actions of the police here. See Mastin v. Senkowski, 297 F. Supp. 

2d 558, 603-04 (W.D.N.Y. 2003)(finding an officer's 

misrepresentation that the polygraph machine was "95 percent 

accurate" did not make the defendant's confession involuntary 

because the law allows police to make false statements, the 

defendant failed to establish the officer lied about the polygraph 

results); People v. Mays, 174 Cal. App. 4th 156, 166 (Cal. Ct. 

App. 2009)(disregarding defendant's belief that "polygraphs are 

100 percent accurate" because "the belief was not induced by the 

police"); Contee v. United States, 667 A.2d 103, 104 (D.C. 

1995)(stating that, when using tests such as polygraphs, the 

police's failure to "explain[] that the test results are not 

conclusive" does not mean the confession is involuntary unless the 

defendant shows the deception was "unfair to the extent that his 

due process was denied"); State v. Stone, 303 P.3d 636, 645 (Idaho 

Ct. App. 2013)(determining the detective's statement, after 

defendant took the exam, that "polygraph examinations were onehundred percent accurate" did not make the defendant's statements 

involuntary because the detective did not make legal 

misrepresentations or threaten defendant with a greater crime for 

lying to police); State v. Underhill, 346 P.3d 1214, 1217 (Or. Ct. 

App. 2015)(finding the defendant's statements in the context of 

the polygraph exam process were voluntary and not the product of 
18 A-0359-15T3

Also, in assessing the voluntariness of defendant's 

statement, the trial court considered the nature of the 

investigation: defendant was informed "nobody could force him to 

take" the polygraph; the door in the interrogation room was 

unlocked and defendant was free to leave at any time; he was told 

he was not under arrest; defendant was given multiple breaks, 

allowed trips to the bathroom, and water to drink. The balance 

of these factors establish that defendant was not subjected to 

substantial psychological pressure during interrogation. See Cook, 

179 N.J. at 563. Because defendant's free will was not overborne 

based on a totality of the circumstances, his inculpatory 

statements were correctly determined by the trial court to be 

voluntary. 

Finally, while defendant agrees with the polygraph's 

inadmissibility, he argues that it was prejudicial for the jury 

to be instructed to assess the reliability of his inculpatory 

statements without knowledge of the detective's use of the failed 

polygraph. However, because we find that defendant's statements 

were voluntarily given, there was no coercive intervening event 

that the jurors needed to be informed about and the trial court 

did not err in excluding all references to the polygraph.

 

unlawful police conduct, despite the officer telling defendant the 

polygraph was "97.3 percent accurate" prior to taking the test).
19 A-0359-15T3

III.

We agree, however, with defendant's contention in Point III 

that the trial court should have charged the jury on the seconddegree sexual assault charge. The trial court's refusal — because 

it would be "a violation of double jeopardy" — was contrary to 

State v. Villar, 150 N.J. 503, 518 (1997) and State v. Short, 131 

N.J. 47, 62-63 (1993), and warrants reversal.

"Appropriate and proper charges to a jury are essential for 

a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Pursuant 

to N.J.S.A. 2C:1-8(e), the court "shall not charge the jury with 

respect to an included offense unless there is a rational basis 

for a verdict convicting the defendant of the included offense." 

Accordingly, when a defendant's request to instruct the jury on a 

lesser-included offense is denied, "an appellate court reviews the 

denial of that request, determining whether 'the evidence presents 

a rational basis on which the jury could [1] acquit the defendant 

of the greater charge and [2] convict the defendant of the 

lesser.'" State v. Carrero, 229 N.J. 118, 128 (2017) (quoting 

State v. Brent, 137 N.J. 107, 117 (1994)). If a rational basis 

exists, "a trial court's failure to give the requested instruction 

is reversible error." Ibid.

In Short, 131 N.J. at 63, the Court upheld a defendant's 

right for a jury to consider a lesser-included offense despite the 
20 A-0359-15T3

fact that the offense was barred by the applicable statute of 

limitations. In that case, the trial court granted defendant's 

request for a jury instruction on the lesser-included offense of 

manslaughter but told the jury over defendant's objection that if 

it found the defendant guilty of manslaughter, the defendant would 

be acquitted as the statute of limitations had run on that offense. 

Id. at 51. Defendant appealed after he was convicted of murder, 

arguing that the instructions on the lesser-included offenses 

should not have been accompanied by warnings that he would be 

acquitted. Id. at 51. 

The Court reversed our affirmance of the conviction and held 

that the defendant was entitled "to have the jury instructed on 

all lesser[-]included offenses supported by the record," without 

warnings about the sentencing outcome and further held that a 

defendant had a right "not to be convicted of a crime whose statute 

of limitations had passed" and these rights were not "conditioned 

on the relinquishment of the other." Id. at 52.

In Villar, 150 N.J. at 508, a jury found a defendant guilty 

of second-degree aggravated assault but acquitted the defendant 

on third-degree aggravated assault. We vacated the second-degree 

aggravated assault conviction and held that there be no retrial 

on the second-degree charge "because the jury acquitted defendant 

on the third-degree charge . . . this lesser-included offense 
21 A-0359-15T3

cannot be charged at retrial, thus hindering a fair retrial of the 

greater offense." Id. at 517. 

The Court reversed and ordered a retrial on the second-degree 

charge. Id. at 518-19. Providing guidelines for the retrial, the 

Court acknowledged the double jeopardy implications of its 

decision:

We realize that, because of the constitutional 

prohibition against double jeopardy, 

defendant cannot be recharged with or 

convicted of the third-degree aggravated 

assault. However, at defendant's request, the 

jury could be charged with that offense as a 

lesser-included offense of second-degree 

aggravated assault and should the jury return 

a verdict of guilt on that count, defendant 

would stand acquitted.

[Id. at 518.]

The State maintains that Villar is inapplicable because count 

two is not a lesser-included offense to count one as the 

culpability requirement for second-degree sexual assault charge 

is higher than for first-degree aggravated sexual assault. It is 

unnecessary to resolve this point because the State applies the 

wrong legal standard. 

When a defendant requests a charge on a lesser-included 

offense, the inquiry focuses on rationality: "whether the lesser 

offense is strictly 'included' in the greater offense, as defined 

by N.J.S.A. 2C:1-8d, is less important to a trial court's 

determination to charge the offense than whether the evidence 
22 A-0359-15T3

presents a rational basis on which the jury could acquit the 

defendant of the greater charge and convict the defendant of the 

lesser." Brent, 137 N.J. at 117. A low threshold is set by the 

rational-basis test. State v. Crisantos, 102 N.J. 265, 278 (1986). 

"A defendant is entitled to a lesser-included offense instruction 

rationally supported by the evidence, even if the instruction is 

inconsistent with the defense theory." Carrero, 229 N.J. at 128. 

"[O]ur Court has determined that failure to instruct the jury at 

the defendant's request on a lesser charge for which the evidence 

provides a rational basis warrants reversal of the defendant's 

conviction." Brent, 137 N.J. at 118.5

Here, there was evidence in the record that provided a 

rational basis for including the lesser-included charge. Indeed, 

the police and J.C.'s parents testified that J.C. told them 

defendant bit or put his penis in defendant's mouth. However at 

trial, J.C. testified that defendant touched his penis with his 

hand, not his mouth. This provided a rational basis for the jury 

to have convicted defendant on the lesser sexual assault charge 

if it did not believe defendant put J.C.'s penis in his mouth but 

instead touched it with his hand. Compare N.J.S.A. 2C:14-2(a)(1) 

 

5 Additionally, we note that we have previously characterized 

second-degree sexual contact as a lesser offense than first-degree 

aggravated sexual assault. See State v. Ramos, 226 N.J. Super. 

339, 340 (App. Div. 1988); State v. J.S., 222 N.J. Super. 247, 250 

(App. Div. 1988).
23 A-0359-15T3

(a person is guilty of aggravated sexual assault "if he commits 

an act of sexual penetration with another person . . . [under] 13 

years old") with N.J.S.A. 2C:14-2(b) (a person is guilty of "sexual 

assault if he commits an act of sexual contact with a victim who 

is less than 13 years old and the actor is at least four years 

older than the victim"). Accordingly, the trial court's refusal 

to charge the jury consistent with Short and Villar was reversible 

error. 

IV.

Defendant next argues in Point IV that the trial court 

improperly admitted five out-of-court statements from the victim, 

his parents, a detective, and a child abuse pediatrician. 

Defendant contends the statements were inadmissible hearsay, 

cumulative, and should have been excluded under N.J.R.E. 403. We 

affirm the challenged evidentiary rulings with two exceptions 

which we address for purposes of the remanded proceedings. 

A trial court's evidentiary rulings are "entitled to 

deference absent a showing of an abuse of discretion, i.e., there 

has been a clear error of judgment." State v. Brown, 170 N.J. 

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 

(1997)). Unless the trial court "was so wide of the mark that a 

manifest denial of justice resulted," we may not substitute our 
24 A-0359-15T3

judgment for that of the trial court. Marrero, 148 N.J. at 484 

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)). 

The trial court admitted J.C.'s recorded statement, his 

statements to his parents, and to the detective pursuant to 

N.J.R.E. 803(c)(27), which permits the admissibility of out-ofcourt statements made by children relating to a sexual offense.6 

We conclude based on our review of the trial record that: (1) 

J.C.'s father's testimony about what the victim told him – that 

defendant bit his "peepee"; (2) the detective's testimony about 

J.C.'s statements to his mother at the police station; (3) the 

victim's own recorded statement given at the police station; and 

(4) J.C.'s mother's testimony about his out-of-court statements 

to her in their home were clearly admissible in accordance with 

N.J.R.E. 803(c)(27) as all three prongs of the Rule were satisfied. 

We find defendant's arguments challenging the admissibility of 

this evidence to be without merit and not warranting extended 

discussion in a written opinion. R. 2:11-3(e)(2). 

 

6 Statements made out-of-court by a child under the age of 12 

relating to sexual misconduct committed with or against the child 

are admissible if (1) the opposing party is on notice; (2) the 

court finds there is a probability that the statement is 

trustworthy, and (3) the child testifies at the proceeding, or the 

child is unavailable as a witness and there is corroborating 

admissible evidence. N.J.R.E. 803(c)(27). 
25 A-0359-15T3

Defendant also argues the testimony of the child abuse 

pediatrician, who was also qualified as an expert, was improperly 

admitted under N.J.R.E. 803(c)(4), which deems admissible 

"[s]tatements made in good faith" for the "purposes of medical 

diagnosis or treatment," because the statements made by the victim 

to the pediatrician were not relevant to diagnosis or treatment. 

Specifically, the pediatrician testified that J.C. stated during 

her examination that "he bit here" and "pointed to his penis." We 

find no abuse of discretion in the trial court's admission of this 

testimony under N.J.R.E. 803(c)(4) because our review of the record 

confirms that J.C.'s statements occurred when he was brought to 

the pediatrician for the purpose of treatment as a result of the 

alleged sexual assault and not evidence gathering. Cf. In the 

Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985) 

(doctor's testimony pertaining to a child's statements regarding 

alleged abuse inadmissible because the doctor was consulted for 

evidence gathering purposes).

Finally, defendant's reliance upon State v. E.B., 348 N.J. 

Super. 336 (App. Div. 2002) for the proposition that prejudicial 

"extra weight" was afforded to J.C.'s allegations based on the 

number of admitted out-of-court statements of abuse is misplaced. 

In E.B., 348 N.J. Super. at 338, 346, the trial court excluded 

testimony of a vital defense witness allowing only the defendant 
26 A-0359-15T3

to testify on his behalf but permitting the State to present five 

witnesses who testified pursuant to N.J.R.E. 803(c)(27). In that 

case, although we cautioned about the "extra weight" that may be 

given when multiple witnesses testify to abuse, our criticism was 

not directed to the prosecution's use of multiple witnesses but 

rather the trial court's failure to give a "modicum of compensatory 

liberality to [the] defendant in the presentation of his proofs." 

Id. at 346. Here, the jury heard the child's version multiple 

times but unlike in E.B., defendant was not denied testimony of a 

vital witness to his case. Under these circumstances we find no 

reason to conclude that the trial court abused its discretion in 

determining that the probative value of the multiple out-of-court 

statements was not "substantially outweighed" by the risk of "undue 

prejudice" or the "presentation of cumulative evidence." N.J.R.E. 

403.

However, the trial court permitted over defendant's objection 

the testimony of the treating child abuse pediatrician that during 

the history portion of J.C.'s examination his mother informed her 

"there was oral genital contact." The trial court admitted the 

testimony pursuant to N.J.R.E. 803(c)(4) concluding the hearsay 

was "reasonable." While the child's statements were clearly 

admissible, it was error to permit the treating pediatrician to 

channel the child's statement through the cumulative hearsay 
27 A-0359-15T3

statement of his mother for the stated purpose of treatment or 

diagnosis. 

Similarly, although the trial court properly sustained 

defendant's objection and precluded the pediatrician from 

testifying about where in the home the alleged abuse took place 

as clearly unrelated to medical diagnosis or treatment, the witness 

was nevertheless permitted to testify regarding the movie that 

J.C. was watching during one of the encounters. We conclude that 

such a corroborative fact should not have been admitted through 

the doctor as it was irrelevant to treatment or diagnosis and was 

cumulative of other evidence. Because we are reversing the 

conviction on other grounds, we need not determine if the erroneous 

introduction of this evidence resulted in a manifest denial of 

justice. That error, however, should not be repeated in any future 

proceedings in this case.

V.

Finally, we reject defendant's collateral estoppel argument 

in Point V and find it to be without sufficient merit to warrant 

extended discussion in a written opinion. R. 2:11-3(e)(2). We 

provide only these brief comments.7 

 

7 The collateral estoppel issue was not raised before the trial 

court directly. Rather, it was framed by defendant as a double 

jeopardy argument. Applying either the plain error or harmless 

error standard, Rule 2:10-2, we conclude the trial court committed 
28 A-0359-15T3

Defendant maintains that because the first jury acquitted him 

on count two, it definitively determined that he had not acted 

"purposely" and thus the State was barred from litigating that 

issue at the second trial. Defendant's argument, however, rests 

on an incorrect assumption regarding the first jury's verdict and 

a mischaracterization of the subsequent trial proceedings.

While it is true that the first jury acquitted defendant on 

count two, which has a "purposeful" mens rea element, the 

definition of "sexual contact" under that count requires the 

defendant to commit sexual contact for the specific purpose of 

"degrading or humiliating the victim or sexually arousing or 

sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Thus, as 

the State correctly observes, it is equally as possible that the 

first jury acquitted defendant on count two because they did not 

believe he acted with these motivations. Nevertheless, even if 

we were to assume that the jury found that defendant did not have 

a "purposeful" mental state, we are satisfied after our review of 

the trial record that the prosecution in its pursuit of a 

conviction for counts one and three, did not attempt to argue that 

defendant acted purposefully and thus the proscriptions against 

re-litigating a previously decided issue addressed in Ashe v. 

 

no error on this point, let alone any that produced an unjust 

result. 
29 A-0359-15T3

Swenson, 397 U.S. 436, 444 (1970) and State v. Cormier, 46 N.J. 

494 (1966) are inapplicable here. 

Unlike in Ashe, a fair reading of the record in the second 

trial fails to support defendant's assertion that the State was 

re-litigating an issue addressed previously — the acquitted charge 

of sexual contact. The essence of defendant's allegations that 

the State re-litigated the mental culpability issue stems from 

statements made during the prosecutor's closing, which defendant 

characterizes as arguments in favor of purposeful action. Yet, 

defendant was not re-indicted on "purposeful" sexual contact nor 

was the jury given instruction that the State had to prove 

"purposeful" intent. Further, to convict defendant for aggravated 

sexual assault under N.J.S.A. 2C:14-2(a)(1), the State only needed 

to prove that defendant acted "knowingly." In this regard, the 

prosecution repeatedly emphasized the word "knowledge" and that 

defendant "knew what he was doing" during closing argument. 

Affirmed in part, reversed in part and remanded for a new

trial. We do not retain jurisdiction.