RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5090-17T4

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

C.B.,

Defendant-Appellant.

_________________________

Submitted January 13, 2020 – Decided May 1, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 17-06-0969.

Moriarty Law Firm, attorneys for appellant (Charles 

Moriarty, of counsel; Timothy C. Moriarty, on the 

brief).

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; Roberta DiBiase, 

Supervising Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-5090-17T4

Defendant C.B. was charged in a nine-count indictment after his daughter, 

W.B.,1reported to the Ocean County Prosecutor's Office in November 2016 that 

he had sexually assaulted her on numerous occasions between 2005 and 2012 

when she was between the ages of six and twelve.2 Defendant appeals from his 

conviction by jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1) (counts one, four and seven); second-degree sexual assault, N.J.S.A. 

2C:14-2(b) (counts two, five and eight); and second-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a)(1)(counts three, six and nine). On 

appeal, he argues:

[POINT I]

V.H. AND J.M. SHOULD NOT HAVE BEEN 

PERMITTED TO TESTIFY BECAUSE THEIR 

TESTIMONY DID NOT MEET THE 

REQUIREMENTS OF THE FRESH-COMPLAINT

EXCEPTION TO THE HEARSAY RULE.

[POINT II]

DEFENDANT WAS DENIED A FAIR TRIAL 

BECAUSE THE TRIAL COURT IMPROPERLY 

PERMITTED HEARSAY EVIDENCE BY 

NUMEROUS WITNESSES, AND IMPROPERLY 

1 We use initials to protect the privacy of W.B. See N.J.S.A. 2A:82-46; R. 1:38-

3(9), (12).

2

 W.B.'s date of birth is March 30, 1999.
3

A-5090-17T4

ALLOWED EVIDENCE AND TESTIMONY THAT 

WAS MORE PREJUDICIAL THEN PROBATIVE.

A. Testimony by Detective Alexander

Regarding Defendant Purchasing Airline 

Tickets to Brazil and Defendant Traveling 

to Various States Outside of New Jersey.

B. Court Improperly Permitted the State 

to Introduce Recorded Telephone

Conversation Between W.B. and 

Defendant over the Defense's Objection to 

Same.

[POINT III]

THE PROSECUTOR IMPROPERLY VOUCHED FOR 

THE TESTIMONY OF A KEY WITNESS IN THE 

CASE DEPRIVING DEFENDANT OF HIS RIGHT 

TO A FAIR TRIAL.

[POINT IV]

DEFENDANT'S SENTENCE IS MANIFESTLY 

EXCESSIVE AND THE TRIAL COURT'S 

DETERMINATIONS AND FINDINGS AS TO THE 

APPLICABLE AGGRAVATING AND MITIGATING 

FACTORS ARE CLEARLY ERRONEOUS AND NOT 

SUPPORTED BY COMPETENT CREDIBLE 

EVIDENCE; THEREFORE, DEFENDANT'S 

SENTENCE MUST BE VACATED.

A. The Trial Court Engaged in 

Impermissible Double-Counting in 

Finding Aggravating Factor Two Applied

to Defendant.
4

A-5090-17T4

B. The Trial Court Improperly 

Evaluated Defendant's Risk to Reoffend 

and the Trial Court's Determination that 

Aggravating Factor Three Applied is Not 

Supported by Competent Credible 

Evidence. 

C. The Trial Court's Findings with 

Respect to Aggravating Factor Nine Are 

Not Supported by Competent Credible 

Evidence.

D. The Court's Imposition of a Sentence 

at the Upper Limits Cannot Stand as the 

Court Improperly Determined the 

Aggravating Factors Outweighed the 

Mitigating Factors.

We affirm but remand for resentencing.

I.

Following the State's in limine motion to admit the testimony of two 

witnesses to whom W.B. had disclosed defendant's actions, and defendant's 

cross-motions to bar those witnesses' testimony, the trial court heard testimony

at an N.J.R.E. 104 hearing from both witnesses. Defendant argues the court 

erred in ruling their testimony was admissible as fresh complaint; both testified 

at trial, as did W.B.

3

3

 Fresh-complaint testimony is admissible only if the victim testifies at trial. 

See State v. Hill, 121 N.J. 150, 151 (1990).
5

A-5090-17T4

We review a trial court’s decision to introduce fresh-complaint testimony 

at trial for an abuse of discretion. See State v. Bethune, 121 N.J. 137, 145-48

(1990). "Trial judges are entrusted with broad discretion in making evidence 

rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003). As 

such, "[a] reviewing court should overrule a trial court's evidentiary ruling only

where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295, 

357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).

Although an out-of-court statement offered to prove the truth of the matter 

asserted therein is inadmissible hearsay, N.J.R.E. 801, fresh-complaint 

testimony by the victim of a sexual offense is admissible for a narrow purpose: 

"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). "[T]o qualify 

as fresh-complaint evidence, the victim's statement must have been made 

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

[and] to a person the victim would ordinarily turn to for support." Ibid. "A 

witness may testify only to the general nature of the complaint, and unnecessary 

details of what happened should not be repeated." State v. W.B., 205 N.J. 588, 

617 (2011). Because fresh complaint evidence cannot be used to bolster the 

victim’s credibility, R.K., 220 N.J. at 456, trial courts "may, but need not, 
6

A-5090-17T4

exclude cumulative fresh-complaint testimony that is prejudicial[,]" Hill, 121 

N.J. at 170.

W.B. made a non-specific disclosure that defendant "had done things to 

her which was implied in a sexual manner . . . [and] that he would hold her down 

in his bed," to her lifelong, close friend, V.H., when they were younger than ten 

years of age—and while defendant's sexual assaults of W.B. were ongoing. 

Defendant does not claim that disclosure did not meet the criteria for admission 

as fresh complaint. Defendant argues V.H.'s testimony was unreliable because 

her version of events differed significantly from W.B.'s recollection and 

included "force, fear and violence" never mentioned by W.B. Defendant further 

contends a subsequent conversation between W.B. and V.H. "as [fifteen]-yearolds," and an inquiry of V.H. by W.B.'s mother, K.B., if W.B. had ever said 

anything about defendant, tainted the initial fresh complaint. 

These bald assertions do not render V.H.'s testimony inadmissible. 

Defendant concedes in his merits brief:

V.H. never revealed what W.B. said to her on the 

second occasion other than that "she had told me she 

told her boyfriend about [the sexual assaults]." . . . V.H. 

never delineated what information she received from

W.B. on that second occasion, what additional details 

she gleaned from the second conversation, and how that 

information may have caused her to revise her 
7

A-5090-17T4

understanding of the sexual abuse W.B. was alleging to 

have experienced.

Not only is defendant's argument unsupported by the record, it fails to 

consider that fresh-complaint testimony "is not evidence that the sexual offense 

actually occurred, or that [a victim] is credible. It merely serves to negate any 

inference that because of [a victim's] assumed silence, the offense did not 

occur." Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007). 

Thus, because fresh-complaint testimony "does not prove the underlying truth 

of the sexual offense," ibid., and the account of the disclosure is limited to "the 

general nature of the complaint," avoiding "unnecessary details of what 

happened," W.B., 205 N.J. at 617, it is of no moment that V.H.'s testimony may 

have differed from W.B.'s full disclosure. The State did not introduce, and the 

jury did not hear, detailed testimony from V.H., including her statement about 

"force, fear and violence." The trial court did not abuse its discretion in 

admitting V.H.'s fresh-complaint testimony.

J.M. was W.B.'s boyfriend of approximately four to five months in the 

summer of 2016. Defendant also argues the trial court erred in allowing J.M.'s

fresh-complaint testimony that W.B. and he were "talking on the phone one 

night and she was very clearly upset"—"crying, very anxious [and] scared"—

causing him to ask "repeatedly," "a few times" "what the problem was" "because 
8

A-5090-17T4

[he] could see very clearly that it was not nothing wrong or not something that 

should be taken lightly." W.B. finally told him her father had "molested her" 

from the time she was six-years-old until she was twelve.4 J.M testified he did 

not ask W.B. if she "was sexually abused by her father." J.M. said he 

immediately drove to W.B.'s home and continued the conversation; W.B. told 

J.M. what her father made her do "and that this was probably a huge cause of all 

of her anxiety." 

Defendant contends J.M.'s testimony did not meet the fresh-complaint 

criteria for admissibility because he repeatedly questioned W.B. before she 

disclosed and that disclosure was made approximately four years after the 

defendant's last alleged assault in 2012. We disagree. As the trial court found, 

J.M. repeated his questions without knowing "anything about an alleged 

complaint or problem that the victim had with . . . defendant." The court 

discounted J.M.'s prior statement to a detective that he "pushed [W.B.'s 

disclosure] out of her," finding from his testimony "that that was really not the 

proper explanation as to what happened," and that J.M. did not interrogate or 

force W.B. to disclose her father's abuse. Indeed, J.M.'s repeated questions to 

4

 J.M. described the molestation in more detail at the N.J.R.E. 104 hearing.

Throughout this decision we have refrained from describing the sordid sexual 

acts, only because a vivid account is not required for our determination.
9

A-5090-17T4

his distraught girlfriend were aimed at finding out what was upsetting her. 

"[G]eneral, non-coercive questions do not rob a complaint of its admissibility 

under the fresh-complaint rule." Bethune, 121 N.J. at 144 (holding questions 

such as, "what’s wrong?" and "[d]id he do something to you?" did not constitute 

a coercive line of questioning (quoting People v. Evans, 173 Ill. App. 3d 186, 

191 (1988))). 

The disclosure, some four years after the last alleged act, bears close 

scrutiny. Notwithstanding that fresh complaints of sexual assault must be made 

within a reasonable time, that requirement "must be 'applied more flexibly in 

cases involving children than in [cases] involving adults.'" W.B., 205 N.J. at 

618 (alteration in original) (quoting State v. L.P., 352 N.J. Super. 369, 382 (App.

Div. 2002)). In deference to a child's "special vulnerability to being cajoled and 

coerced into remaining silent by their abusers, courts allow children additional 

time to make a fresh complaint." Bethune, 121 N.J. at 143. Such an 

accommodation also recognizes "the reluctance of children to report a sexual 

assault and their limited understanding of what was done to them." State v. P.H., 

178 N.J. 378, 393 (2004).

The trial court found W.B.'s disclosure to J.M. was made within a 

reasonable time considering the difficulty young victims have in disclosing 
10 A-5090-17T4

abuse by someone with whom they have a close relationship. The court 

explained the timing of the disclosure

was reasonable because a relationship was developing 

between [W.B. and J.M.] for some period of time while 

they were dating, and that trust between two people 

developed to the point where . . . the statement was 

made within a reasonable time of the occurrence 

because the relationship became stronger and clearly 

there was more trust between the two individuals.

Noting the complexity of such situations, the trial court recognized that the 

development of sufficient trust is an "ongoing process," making the time period 

reasonable.

We have recognized that a greater 

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. For example, in State v. 

Hummel, 132 N.J. Super. 412, 423 [(App. Div. 

1975)], a period of three years between assault and 

complaint was allowed where the fifteen-year-old 

victim had been repeatedly raped over a three-year 

period and had just been removed from her abuser, 

thereby freeing her from the bonds of a paralyzing fear. 

The remoteness of the complaint from the abuse was 

found to affect only the probative value, not the 

competency, of the evidence.

[State v. Pillar, 359 N.J. Super. 249, 281-82 (App. Div. 

2003).]
11 A-5090-17T4

The lapse between a juvenile victim's complaint and the last act must be 

adequately explained, W.B., 205 N.J. at 618-619 (recognizing that the two-year

delay was justified because the victim was "scared" and in a state of "open 

rebellion" against her mother); longer delays typically require a showing of 

threats or coercion, see e.g., Hummel, 132 N.J. Super. at 423 (noting that the 

reason for the victim's delay was because her abuser threatened to put her away 

in a shelter if she spoke); L.P., 352 N.J. Super. at 384 (finding that the delayed 

complaint was justified because the victim "continued living with defendant . . 

. and defendant had warned [her] that he would kill her if she told anyone about 

the sexual abuse"). 

Reflecting her "limited understanding" of what was done to her when she 

was six years-old, at a time when defendant still lived with her, her mother and 

her brother, see P.H., 178 N.J. at 393, W.B. testified she was "unfazed" by the 

abuse that occurred while her mother was at work because "[a]t six years[-]old, 

you don't know any better, you're not fully taught what's right or wrong[.]"

During the abuse that occurred during bi-weekly weekend parenting time 

at defendant's father's house when W.B. was "around eight to tenish," defendant 

first told W.B. not to tell anyone because if she "said anything that he could get 

. . . in very serious trouble and [she] wouldn't see him anymore." After W.B. 
12 A-5090-17T4

told V.H. about the abuse, and defendant moved to two locations in Woodbridge

Township between 2010 and 2012, when W.B. was between ten or eleven and 

thirteen years-old, the assaults continued during bi-weekly parenting time. 

From the record, we observe W.B. did not tell anyone about the abuse, including 

her mother, from her initial disclosure to V.H. before they were ten years-old 

until she told J.M.

Although there is no evidence defendant threatened or forced W.B. to 

remain silent, he did play on her emotions for him after defendant moved from 

the marital home. W.B. told the jury about her relationship with defendant:

Before everything came out, I was able to have a 

relationship with my dad and we would go out to lunch, 

we would hang out, we would go jeeping together 

which is like mudding in a Jeep, pretty standard stuff, 

but I was able to build a relationship with him. 

She explained, "I just disassociated what he did from him. Like it was a different 

person, like what he did was completely different from who he was. And I just 

disassociated that so he was still my dad and was able and easier to have a 

relationship with him." She said she loved her father, and since she came 

forward:

I don't talk to half my family now. I'm missing a whole 

person from my life. I don't have someone to walk me 

down the aisle. My kids aren't going to have a grandpa, 

and I'm just missing such an important figure from my 
13 A-5090-17T4

life. We were supposed to learn how to do things 

together. He was supposed to teach me how to fix cars 

and help me with my car problems and just be a dad and 

I'm missing that now.

Even at age ten, she realized her father would face punishment if she disclosed, 

asking V.H. to keep secret their conversation because W.B. "didn't want her dad 

to get in trouble." And, J.M. told the jury, she never told anyone besides V.H. 

because she "was afraid she would get in trouble and she thought that it might

have been her fault and people would be mad at her."

When she told J.M., she had no apparent confidante. There is no evidence 

she told V.H. about the continued abuse after her initial disclosure. She never 

sought her mother's help at any time. In fact, she "took a shot" thinking she 

"might as well try" to get defendant to stop the assaults, and confronted her 

father around her thirteenth birthday. She told him "that what he was doing was 

wrong." After "that he basically just did stop." 

After she confronted her father, she wanted to see a therapist a year to six 

months prior to her mother beginning that process in November 2016, by asking 

defendant about health insurance coverage for the sessions. She had not begun 

therapy when she told J.M in the summer of 2016. Under those circumstances, 

although the four-year period between the last act and W.B.'s disclosure to J.M. 

was lengthy, we agree with the trial court that W.B. did not have a trusted person 
14 A-5090-17T4

to tell of the longstanding abuse until then. She apprehended the repercussions 

to her and defendant that did ensue once disclosure was made to her mother, 

albeit by her father's reaction to the request for health insurance coverage for 

the therapy sessions. She told the man, to whom she would become affianced, 

of the continued abuse only after they had developed a relationship she could 

trust; even then, she was distressed when she made that disclosure. The trial 

court did not abuse its discretion in finding the disclosure to J.M. was made 

within a reasonable time.

We reject defendant's contention that the trial court erred in allowing 

fresh-complaint testimony from both V.H. and J.M. V.H.'s testimony involved 

the very early assaults by defendant. J.M.'s testimony covered assaults over an 

additional two years, well after the disclosure to V.H. that occurred when W.B. 

was less than ten years-old. Absent J.M.'s testimony, the jury may have thought 

that W.B.'s failure to complain about the assaults that continued after she was 

ten years-old were fabrications. It was within the judge's discretion to allow

both witnesses' testimony "to negate the inference that the victim's initial silence 

or delay indicates that the charge is fabricated," R.K., 220 N.J. at 455, including 

W.B.'s silence about the continued abuse after she told V.H, see Hill, 121 N.J. 

at 170 (holding trial courts "may, but need not, exclude cumulative fresh-
15 A-5090-17T4

complaint testimony that is prejudicial"); see also State v. Taylor, 226 N.J. 

Super. 441, 453 (App. Div. 1988) (holding "[w]ithout evidence of the second 

complaint, a jury might have thought that if the child did not recount the events 

to her mother at the first opportunity, the events may have been a fabrication of 

either the child or her aunt").

II.

Defendant also advances several additional arguments that the trial court 

erred in admitting evidence.

A.

Defendant argues the trial court erred by denying his motion in limine to 

exclude evidence at trial of a telephone conversation between W.B. and 

defendant that was recorded by the Prosecutor's Office and played to the jury 

during the State's case-in-chief. The call began with a cordial, innocuous 

conversation before W.B. told defendant that her mother informed her that 

defendant asked why W.B. was looking for a therapist. Her mother testified that 

she asked defendant about health insurance coverage for therapy sessions on the

day prior to the recorded conversation. When defendant replied, "Oh, yeah, to 

make sure everything was going okay," the following colloquy ensued: 

[W.B.]: Well, I think we both know the reason why I’m asking for 

a therapist.
16 A-5090-17T4

[DEFENDANT]: (Inaudible.)

[W.B.]: So –

[DEFENDANT]: Okay.

[W.B.]: I mean, you said you wanted to, you know, try and be part 

of . . . my life, but I don’t, like, going to a therapist is not to get you 

in trouble, its just so I can actually have closure on what happened 

because we both know what happened wasn’t okay.

[DEFENDANT]: (Inaudible.)

[W.B.]: So.

[DEFENDANT]: So. You do whatever you have to do to get better, 

sweetheart.

[W.B.]: I mean –

[DEFENDANT]: I love you (inaudible).

[W.B.]: Yeah, I love – what? Hello?

[DEFENDANT]: All right. Take care sweetie.

[W.B.]: Wait, why are you – wait. Where are you going?

[DEFENDANT]: No, I just –

[W.B.]: No, but I . . . called you to talk. 

[DEFENDANT]: All right. I just –

[W.B.]: What’s wrong? You don’t sound okay.

[DEFENDANT]: I’m okay. It’s okay.
17 A-5090-17T4

[W.B.]: I really, I don’t make – I don’t want you to feel like [bad] 

about the situation, like –

[DEFENDANT]: No.

[W.B.]: But, I don't know.

[DEFENDANT]: Want you to be happy.

[W.B.]: Is there anything you have to say about it at least?

[DEFENDANT]: No. 

[W.B.]: There’s no apology for basically ruining my life, a little bit? 

Because we all know, like, that [messed] someone up.

[DEFENDANT]: I don’t – I can’t – I don’t want to talk about this 

on the phone. 

[W.B.]: But why not?

[DEFENDANT]: I just don’t.

[W.B.]: Well, I can't talk to you in person about it because [we] all 

know how it's going to end, and it's not going to be well.

[DEFENDANT]: Have a good Thanksgiving, okay.

[W.B.]: Why are you trying to leave? Like – you don’t, you don’t 

even have like a single remorse for what you did? How is that fair 

to me? There’s not one apology you could possibly have, because, 

you know, this happened for like six years, right? There’s not a 

single apology?

[DEFENDANT]: Oh, there’s lots of apologies.
18 A-5090-17T4

[W.B.]: Well, you said you wanted to try to and make things better 

but you still have not even brought up the biggest issue that there 

is. 

[DEFENDANT]: No.

[W.B.]: So why don’t we address it?

[DEFENDANT]: I can’t right now, I’m sorry.

[W.B.]: Why not?

[DEFENDANT]: I can't.

[W.B.]: All right. Well, everything has been on your time. So why 

can't this be on my time?

[DEFENDANT]: I'll call you back in a little bit. 

[W.B.]: No, like, why can't we just talk now? Are you with 

someone right now?

[DEFENDANT]: I told you I'm – I'm – I'm –

[W.B.]: You just said you were outside.

[DEFENDANT]: Yeah, but I can't talk right now, I'm sorry. 

[W.B.]: Why?

[DEFENDANT]: Can't.

[W.B.]: But I’m ready to talk. 

[DEFENDANT]: Sweetie, I love you.

[W.B.]: No, obviously, you don’t, though. There’s no apology or 

anything?
19 A-5090-17T4

[DEFENDANT]: There’s [an] apology, I’m sorry, I’m sorry, I was 

a horrible parent, I was never there. 

[W.B.]: That’s no, that’s – you not being there is not what I’m 

asking for – he really just hung up on me. 

Defendant contends the recording was inadmissible because it is 

ambiguous. Trial counsel argued defendant was apologizing for being "a 

horrible parent," not about allegations of sexual assault which were never 

specified by W.B. during the conversation. As such, the "ambiguous nature of 

the conversation . . . invited unconstitutional speculation rendering the call 

unduly prejudic[ial]." Defendant also argues that the prosecutor's claim to the 

jury during summation that the "true meaning" of defendant's failure to address 

W.B.'s allegations and his apology constituted an admission of guilt.

The trial court, after a N.J.R.E. 104 hearing at which the recording was 

played, ruled the conversation was relevant and it would be up to the jury to 

determine if anything was to be derived from the recording in the context of all 

of the evidence adduced at trial, after hearing both parties' views about the 

recording's content. Although "relevant evidence may be excluded if its 

probative value is substantially outweighed by the risk of . . . [u]ndue

prejudice[,]" N.J.R.E. 403; State v. Covell, 157 N.J. 554, 573 (1999), we review

a trial court's decision on that issue, affording "substantial deference to the 
20 A-5090-17T4

evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186 

N.J. 286, 319 (2006). Thus, our review of evidentiary decisions implicates the 

abuse of discretion standard, where a reversal will occur only where the trial 

judge's decision was "a clear error of judgment." Estate of Hanges v. Metro. 

Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (quoting Koedatich, 112 N.J. 

at 313).

Considering the remarks made by W.B. during the conversation, and other 

evidence, defendant's statements in the recorded conversation were not so 

ambiguous as to require exclusion. W.B. told defendant in the beginning of the 

pertinent conversation, "I think we both know the reason why I’m asking for a 

therapist." W.B.'s mother testified that on the day prior to the conversation, 

when she raised the subject of insurance coverage for therapy to defendant, 

defendant "was nervous, he was scared, he was very childlike." When he 

informed K.B. "about a notebook that had passwords and bank account 

information in it," K.B. asked him why he was advising her of that information. 

K.B. said defendant replied "that because as soon as [W.B.] spoke to a therapist 

they were going to have to call the cops and he couldn't live in jail."
21 A-5090-17T4

W.B. commented that she was not seeing a therapist to "get [defendant] in 

trouble," but to "actually have closure on what happened because we both know 

what happened wasn’t okay." She continued:

[Y]ou don’t even have like a single remorse for what 

you did? How is that fair to me? There’s not one 

apology you could possibly have, because, you know, 

this happened for like six years, right? There’s not a 

single apology?

[(Emphasis added).]

That evidence sufficiently strengthened the probative value of the recording to 

justify the trial court's finding that the prejudice caused by any ambiguity did 

not outweigh that value. The jury could consider defendant's demeanor and his 

responses during the conversation in determining the parties' dueling 

interpretations of the issue being discussed. As the trial court instructed the 

jury, it had to first determine if the statement was made by defendant and, if 

made, whether it was credible. The instruction, which conformed substantially 

to the model charge, Model Jury Charges (Criminal), "Statements of Defendant" 

(rev. June 14, 2010), placed the conversation's context in the hands of the jury.

In a single sentence, without any explanation, defendant argues the 

recording's "admission was improper pursuant to [N.J.R.E.] 803(b)(1) and 

[N.J.R.E.] 104." Defendant's contention cannot be considered an 
22 A-5090-17T4

argument. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 506

n.2 (App. Div. 2015) (finding that an issue raised in "a single sentence in 

[defendant's] brief," was waived because defendant provided no supporting legal 

argument). Although the N.J.R.E. 104 hearing at which the recording was 

played does not present as a traditional N.J.R.E. 104(c) hearing at which the trial 

court must determine if the State proved defendant's statement was voluntary, 

see State v. Miller, 76 N.J. 392, 404-05 (1978), defendant does not argue that 

the conversation with his daughter was not voluntary.5 Moreover, after listening 

to the recording and arguments of counsel the trial court found "there [was] no 

legal reason, no evidentiary reason to keep this statement out at this time." As 

such, we find no merit in defendant's syncopated argument.

B.

Defendant further argues the trial court erred in admitting hearsay 

testimony elicited from the case detective over his objection. Specifically, in 

his merits brief defendant asserts the detective's "testimony regarding defendant 

purchasing a one-way ticket to Brazil and travel[ing] out of state . . . constituted 

inadmissible hearsay"; should have been excluded as more prejudicial than 

5

 When the CD of the recording was moved into evidence by the State, defendant 

had no objection.
23 A-5090-17T4

probative; and, although the State "intimated that the evidence indicated a 

consciousness of guilt," the court's denial of the State's request for a flight 

charge prejudiced defendant.6 The detective testified that the day after the 

recorded conversation, "defendant purchased and subsequently cancelled airline 

travel from Newark Liberty International Airport . . . to Orlando, Florida, 

continuing to Sao Paulo, Brazil"; the ticket was one-way. Defendant did not 

object to that testimony. As such we will view it under the plain error standard. 

"Under that standard, a conviction will be reversed only if the [alleged] error 

was 'clearly capable of producing an unjust result[.]'" State v. McGuire, 419 

N.J. Super. 88, 106 (App. Div. 2011) (quoting R. 2:10-2). Defendant must 

present evidence "sufficient to raise a reasonable doubt as to whether the error 

6

 In the statement of facts of his merits brief, defendant mentions another 

instance during the trial when a hearsay objection was made to the detective's 

testimony that defendant's sister "reported the defendant missing or in danger 

because [he] failed to show up for work." In the statement of facts, he also 

mentions the detective's testimony that "there was [an] indication that 

[d]efendant attempted to conceal his whereabouts by using cash and removed 

his license plate from his vehicle at various times," and by calling from restricted 

phone numbers; there was no objection lodged to that testimony which was 

elicited during cross-examination. Several other hearsay objections were lodged 

at trial but were not addressed in defendant's merits brief. Defendant did not 

advance any argument about any of the foregoing testimony in his merits brief. 

As such we will consider them abandoned. See State v. Press, 278 N.J. Super. 

589, 596 (App. Div. 1995) (determining that an "issue [that] was not briefed or 

argued . . . should not [be] address[ed]"); State v. L.D., 444 N.J. Super. 45, 56

n.7 (App. Div. 2016) ("[A]n issue not briefed is waived.").
24 A-5090-17T4

led the jury to a result it otherwise might not have reached[.]" Id. at 106-07 

(alteration in original) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)). In 

other words, he must establish that the error "was clear and obvious and that it 

affected [his] substantial rights." Id. at 107.

Defendant did interpose a hearsay objection to the detective's testimony 

that defendant travelled to various states. If an objection is made, we review the 

trial court's evidentiary holding under the harmless-error standard, see State v. 

Reeds, 197 N.J. 280, 297-98 (2009), and will only reverse its decision if the 

error "is of such a nature as to have been clearly capable of producing an unjust 

result[,]" State v. R.B., 183 N.J. 308, 330 (2005) (quoting R. 2:10-2); see also

State v. Macon, 57 N.J. 325, 337-38 (1971) (noting that "the same ultimate 

standard applies whether the error was objected to below or whether the error 

was first claimed upon appeal"). 

The detective told the jury that "[d]uring the course of our investigation, 

we learned that . . . defendant was . . . scheduled to spend Thanksgiving[—the 

day after the recorded conversation—]at his sister's residence" but did not 

attend. At a sidebar conference following defense counsel's hearsay objection 

because the information was given to the State by defendant's sister, the assistant 

prosecutor tried to justify the testimony, contending it was "derived from 
25 A-5090-17T4

numerous sources," not just from what defendant's sister said. The assistant 

prosecutor continued:

It's basically based upon a lengthy investigation, it's 

based upon numerous different things including 

numerous records that we viewed in determining where 

the defendant's whereabouts are. 

It's relevant because . . . defendant was ultimately 

apprehended in Alabama. So during Thanksgiving, the 

State was just trying to proffer the fact that he was in 

Alabama which is, has a direct correlation to the case, 

specifically that's where he was located. So we have to 

be able to put that in some type of context, so that was 

pretty much what we were eliciting it for. We didn't 

elicit any type of hearsay statement. I believe that 

counsel is right to the fact that this conversation was 

documented in a conversation with [defendant's sister] 

but we're not eliciting it as to what [defendant's sister] 

said, and furthermore, this was documented in 

numerous, numerous records as well independent from 

what [defendant's sister] was saying.

The trial court queried if the testimony was admissible "not for the truth 

of what someone told an investigator about [where] a person would be, but rather 

for the purpose of making the jury aware of what investigation went towards 

finding this information[.]" The assistant prosecutor, unsurprisingly, agreed 

with the argument she had not theretofore raised. Yet, the assistant prosecutor 

admitted that she was seeking to elicit that defendant travelled to Alabama after 

the recorded conversation, "which is tying into where he [was] ultimately found" 
26 A-5090-17T4

and arrested. The trial court overruled defendant's objection, finding the 

testimony relevant, not introduced to prove the truthfulness of the statement, and 

"properly admissible as an exception[.]"

The detective then testified defendant went to Alabama, where his cousin 

was located, during the Thanksgiving holiday, and returned to New Jersey, 

"[a]ccording to credit[-]card records," on December 5, 2016; defense counsel 

again objected on hearsay grounds. The trial court allowed the testimony, asking 

the assistant prosecutor to "lay a little more foundation" about the credit cards. 

Without complying with the judge's instruction, the assistant prosecutor asked 

the detective if he knew when defendant returned to New Jersey. The detective 

replied defendant "made contact with the New Jersey State Police" on December 

10, 2016.

Later, when the detective testified he had no further contact with 

defendant in New Jersey after December 23, 2016, the assistant prosecutor 

asked, "where did [the detective] believe . . . the defendant went" after that 

date?" The detective answered, "based on records, it appeared as if the 

defendant was in multiple states[.]" Defense counsel objected on hearsay 

grounds. At sidebar, the assistant prosecutor asserted:

Judge, the State would just place on the record that it's 

not hearsay, he is basing this on his investigation. The 
27 A-5090-17T4

detective gets on the stand, he's allowed to testify as to 

what happened in the investigation. There were 

numerous records in this case which were turned over 

to defense counsel. They were turned over as certified 

business record documents. He's certainly allowed to 

testify as to his conclusions about the investigation. 

So at this point in time, it is the State's position 

that this type of testimony is admissible. I mean there 

was numerous, numerous search warrants done in terms 

of finding out the defendant's whereabouts as to where 

he went and where he didn't go. Now, the State would 

understand if we tried to elicit a particular hearsay 

statement that, you know, Barbara told me he was here, 

but that's not what we're doing. We're basically giving 

a summary based upon the voluminous records which 

were certified and we're not offering any type of 

statement at this time. 

After the trial court confirmed that defense counsel received from the 

State records of credit-card usage, airline ticket purchases, and attendance 

records from defendant's employer, defense counsel explained that he objected 

because the detective's "opinion" was derived from documents which were not 

established as hearsay exceptions; that is, the State did not lay a foundation 

establishing that they were business records. The trial court ruled:

If a detective goes out and investigates a case and 

obtain[s] records, for instance, from a business, from a 

place where a person works, that is part of the 

investigation, in this [c]ourt's opinion, and he's allowed 

to testify to that. [Defense counsel is] allowed to crossexamine if [he] want[s] to use the records or anything 

like that.
28 A-5090-17T4

The court also determined the State was not seeking to introduce the documents;

the detective was "testifying from his investigative reports"; and that the records 

from which the detective was opining as to defendant's travels were not hearsay, 

but were "records from a business."

The State also introduced at trial text messages between defendant and

W.B. that were taken from W.B.’s phone. Defense counsel objected that these 

messages constituted inadmissible hearsay. The trial court overruled the 

objection, stating "they are not hearsay at this time, not being offered for the 

truth but that are part of an investigation in this matter."

Just after the recorded conversation, W.B. texted defendant and asked,

"[w]hy’d you hang up?" and "[w]hen are you going to, gonna call back, call me 

back, I’m sorry." Defendant replied, "Sorry, had to go. Have an errand. Call 

you on Friday." Additional text messages, collected from W.B’s phone during 

November 22, 2016 to January 22, 2017, were also introduced. One of the text 

messages from W.B.’s phone, sent on December 18, 2016, stated, "I’m not 

surprised you ran again, but you are making my life hell right now and you’re 

pissing me off. Take responsibility for your actions"; to which defendant 

responded "I’m sorry I’m making your life hell." Defendant now argues "the 

admission of the text messages, specifically, the one in which W.B. asks 
29 A-5090-17T4

defendant, 'why he is running[,]' should never have been admitted, and if 

admitted, required the [c]ourt to issue a limiting instruction."

The specific text message was, like the recorded conversation, a hearsay 

exception if it was defendant's statement. N.J.R.E. 803(b)(1). We note the trial 

court did not conduct a N.J.R.E. 104(c) hearing to determine if the statement 

was voluntary or to determine the prejudicial impact of, not only defendant's 

statement, but also that of the prompting text from W.B. Defendant, however, 

objected only on hearsay grounds. He does not contend that defendant's text to 

his daughter was not voluntary. He does not contend, as he did with the recorded 

conversation, that the statement was more prejudicial than probative. We also 

note the trial court, as it did with defendant's statements in the recorded 

conversation, instructed the jury it had to first determine if the statement was 

made by defendant and, if made, whether it was credible. Again, the instruction 

conformed substantially to the model charge, see Model Jury Charges 

(Criminal), "Statements of Defendant," and placed the conversation's context in 

the hands of the jury. But, for reasons which we will discuss at length, W.B.'s 

comment that defendant was running again was, on the record before us, 

inadmissible. 
30 A-5090-17T4

The trial court erred in determining the detective could testify from 

records, even if defense counsel received them in discovery. The assistant 

prosecutor did not establish that any of the records were admissible as hearsay 

exceptions; she simply stated they were. A proper foundation must always be 

laid before business records can be admitted into evidence. See State v. 

Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975). "The requirement that a 

foundation be laid establishing the criteria for admissibility [of the business 

records] may be met by the kind of proof that would satisfy a trial judge in a 

hearing under [N.J.R.E.] 104(a), including proof presented in affidavit form[.]" 

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme 

Court Committee Comment on N.J.R.E. 803(c)(6) (2019). To achieve that end, 

a trial judge should normally examine the records during a N.J.R.E. 104 hearing 

to determine the manner of their preparation and ensure that all requirements of 

N.J.R.E. 803(c)(6) are satisfied before allowing the documents to be admitted 

into evidence at trial.7 N.J. Div. Youth & Family Servs. v. E.D., 233 N.J. Super. 

7

 Under the "Records of Regularly Conducted Activity" exception to the hearsay 

rule ("business records exception"), documents or records may be exempt from the 

hearsay rule if they meet three criteria: 

First, the writing must be made in the regular course of 

business. Second, it must be prepared within a short 
31 A-5090-17T4

401, 413 (App. Div. 1989); see also Biunno, Weissbard & Zegas, Current N.J. 

Rules of Evidence, cmt. 1 on N.J.R.E. 803(c)(6) (2019). Alternatively, a 

custodian of records or other qualified witness can testify that the proffered 

records meet the required N.J.R.E. 803(c)(6) criteria. See Konop v. Rosen, 425 

N.J. Super. 391, 402-04 (App. Div. 2012); Hahnemann Univ. Hosp. v. Dudnick, 

292 N.J. Super. 11, 17-18 (App. Div. 1996) (noting that a witness must be 

qualified before laying the necessary foundation for computer records to be 

admitted into evidence at trial). For example, we have determined 

[a] witness is competent to lay the foundation for 

systematically prepared computer records if the witness 

(1) can demonstrate that the computer record is what 

the proponent claims and (2) is sufficiently familiar 

with the record system used and (3) can establish that it 

was the regular practice of that business to make the 

record. If a party offers a computer printout into 

evidence after satisfying the foregoing requirements, 

the record is admissible "unless the sources of 

information or the method, purpose or circumstances of 

preparation indicate that it is not trustworthy."

[Hahnemann, 292 N.J. Super. at 18 (citation omitted) 

(quoting N.J.R.E. 803(c)(6)).]

time of the act, condition or event being described. 

Finally, the source of the information and the method 

and circumstances of the preparation of the writing 

must justify allowing it into evidence.

[State v. Matulewicz, 101 N.J. 27, 29 (1985).]
32 A-5090-17T4

See also Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007) ("All 

that is needed to lay the foundation for the admission of systematically prepared 

. . . records otherwise qualified as business records is if 'the witness (1) can 

demonstrate that the . . . record is what the proponent claims and (2) is 

sufficiently familiar with the record system used and (3) can establish that it was 

the regular practice of that business to make the record.'" (quoting Hahnemann, 

292 N.J. Super. at 18))). Finally, an affidavit may be sufficient to lay a proper 

foundation for the records under certain circumstances. Biunno, Weissbard & 

Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee 

Comment on N.J.R.E. 803(c)(6) (2019).

The detective was not able to introduce the hearsay statements from the 

records or any other source unless the trustworthiness of the source was 

established. The detective was not a permissible conduit for the introduction of 

inadmissible hearsay; "case detective" is not a hearsay exception. And, we 

disapprove of the trial court's admission of hearsay evidence as explaining the 

State's course of investigation.

The trial court's determination that the testimony was not hearsay because 

it was not offered to prove the truth of the matter was misguided. In her 

summation, the assistant prosecutor linked the detective's testimony about 
33 A-5090-17T4

defendant's travel and the text messages to defendant's knowledge of the subject 

of his recorded conversation with W.B., stating:

Text messages, which were marked S-2, these are 

crucial because they show you exactly what was 

happening while this was going on. If you look to the 

bottom of these, on the date of November 22[], you can 

see specifically the defendant and how this is imploding 

for him because what is he doing? He’s trying to 

contact [W.B.]. He says, hey, did you get rid of Snap 

Chat? I don’t see you as my friend anymore, [W.B.] 

Then he says, I can’t add you either.

[K.B.] testified that on [November 22], . . . 

defendant was trying to get in touch with them. It’s

more telling is that you can see during the course of 

these text messages when the consensual is over, and 

[W.B.] asked her father, why did you hang up? When 

are you going to call me back? You know what his 

response to her is? Sorry, had to go, have an errand, 

call you on Friday. That’s what he said to her. At any 

time during this consensual, at any time in these text 

messages, at any time does the defendant ever once say 

to [W.B.], [W.B.], what are you talking about? I didn’t 

do this, what are you crazy? Are you making this up? 

That would be a normal reaction, but that’s not what the 

defendant does. 

The day after he, [W.B.] goes to the police on 

November 23[], 2016, the defendant books a one-way 

flight to Brazil and then cancelled it. This evidence is 

not being offered to say to you that the defendant 

somehow fled the country and all these other things. 

What it shows to you is that this was his immediate 

reaction. It shows you that he knew exactly what was 

going on in that consensual because this was his first 

reaction.
34 A-5090-17T4

[(Emphasis added).]

The assistant prosecutor continued this tack, telling the jury defendant did 

not go to his sister's house for Thanksgiving, and, instead, went to Alabama to 

"distanc[e] himself" from W.B. "because it's not a secret what happened between 

the two of them." She also quoted W.B.'s text and defendant's reply, and told 

the jury:

Why would he be making her life hell at that 

point, he's just a bad parent; right? Of course not. And 

he was making her life hell. He sexually abused her for 

years and now he's told her that her mother knew about 

it. Why is [W.B.] saying to him what are you running? 

Because during this whole course of time, . . . defendant 

is not in New Jersey the whole time. He's in New 

Jersey, then he's going out of state. His own sister 

reported him missing for not showing up to work 

because he's getting himself away from the situation.

On February 14[], . . . defendant contacts [K.B.] 

from a restricted phone number, and in this 

conversation he tells her, oh, you knew. Doesn't tell 

her, hey, I didn't do this. He takes the blame and now 

tries to place it on her. But if he didn’t do it, wouldn't

the normal reaction be what is going on, why is she 

saying this, what is happening. That's what you would 

say if you didn't do it.

Ultimately . . . defendant is placed under arrest in 

Alabama at his cousin['s] . . . house. Her testimony is 

that after December 23[] the police didn't have any 

more contact with . . . defendant in New Jersey. We 

know throughout the course of this, he's basically 
35 A-5090-17T4

traveling to different states and at times appearing at 

this cousin's house in Alabama. We know that he is 

evasive from restricted numbers, and we talked about 

this before because he's trying to distance himself from 

[W.B.]. He's also attempting to relocate. 

The detective's hearsay testimony about defendant's travel outside New 

Jersey was used to prove the truth of the matter. Although not couched in terms 

of flight, the hearsay testimony about defendant's travel was used by the State 

as evidence of defendant's consciousness of guilt and his knowledge that W.B. 

was speaking about his sexual crimes during their recorded conversation; it was 

his "immediate response." The hearsay testimony was offered to prove the facts 

upon which that State-drawn inference was based.

We further observe that even if the out-of-state travel evidence was not 

offered for its truth—which we do not believe to be the case—the trial court did 

not instruct the jury about its limited purpose. That is not to say we agree with 

defendant that the trial court erred by failing to include a flight charge; defendant 

objected to that charge, and under the invited error doctrine

a "defendant cannot beseech and request the trial court 

to take a certain course of action, and upon adoption by 

the court, take his chance on the outcome of the trial, 

and if unfavorable, then condemn the very procedure he 

sought and urged, claiming it to be error and 

prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). 

Thus, when a defendant asks the court to take his 

proffered approach and the court does so, [the Court
36 A-5090-17T4

has] held that relief will not be forthcoming on a claim 

of error by that defendant. On another occasion, [the

Court] characterized invited error as error that defense 

counsel has "induced." State v. Corsaro, 107 N.J. 339, 

346 (1987).

[State v. Jenkins, 178 N.J. 347, 358 (2004).]

But the trial court should have instructed the jury if the evidence was admitted 

for a purpose other than its plain truth. 

We also discern that W.B.'s statement that she was "not surprised 

[defendant] ran again," was not analyzed for admissibility. In light of our 

determination that the detective's testimony about defendant's travel was 

inadmissible as presented, W.B.'s statement was unsupported by other 

competent evidence. As used by the assistant prosecutor in her summation, it 

was used for the truth of the statement. During a N.J.R.E. 104(c) hearing—

which was not conducted as to the text messages—the trial court, in addition to 

determining if defendant's statements were admissible, should have determined 

if there was a basis for admission of W.B.'s statements, especially the portion 

which we highlighted. We are dubious that defendant's reply that he was sorry 

for making W.B.'s "life hell" necessitated the inclusion of her "surprised you 

ran" statement. Under N.J.R.E. 106, "[w]hen a writing or recorded statement or 

part thereof is introduced by a party, an adverse party may require the 
37 A-5090-17T4

introduction at that time of any other part or any other writing or recorded 

statement which in fairness ought to be considered contemporaneously." The 

doctrine of completeness "allows the reading of a second writing or statement 

where 'it is necessary to (1) explain the admitted portion, (2) place the admitted 

portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and 

impartial understanding.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App. 

Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992)).

The trial court abused its discretion in admitting the hearsay evidence. 

That evidence supported the State's position that defendant knew what W.B. was 

discussing during the recorded conversation. That drawn inference was 

strengthened by the admission of the hearsay testimony about defendant's travel. 

Further, the State highlighted the hearsay testimony about defendant's purchase

of a one-way ticket to Brazil after the recorded conversation.

Of course, we review the admission of the travel-related evidence, to 

which defendant objected under the harmful error standard whereby a new trial 

must be granted if the erroneous admission raises a "reasonable doubt as to 

whether the error denied a fair trial and a fair decision on the merits[.]" Macon, 

57 N.J. at 338. We review the admission of the detective's testimony about the 

ticket to Brazil for plain error. "Under that standard, we disregard an error 
38 A-5090-17T4

unless it is 'clearly capable of producing an unjust result.'" State v. Daniels, 182 

N.J. 80, 95 (2004) (quoting R. 2:10-2). "In other words, the error must be 

'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it 

otherwise might not have reached.'" Ibid. (alteration in original) (quoting 

Macon, 57 N.J. at 336). 

Through that bifocal lens we see that the errors do not warrant a new trial. 

There was strong evidence of defendant's guilt other than the admitted hearsay. 

His reaction to K.B.'s request for health insurance information for their 

daughter's therapy was telling. K.B. testified defendant was nervous, scared, 

and very childlike. He informed K.B. about passwords and bank account 

information, "because as soon as [W.B.] spoke to a therapist they were going to 

have to call the cops and he couldn't live in jail."

The jury also heard defendant's reaction to W.B.'s accusatory inquiries 

during the recorded conversation in which she referenced "what [he] did" for

six-years and her need for therapy "not to get [him] in trouble," but to "actually 

have closure on what happened because [they] both know what happened wasn’t 

okay." Those admissible references were sufficient evidence for the jury to find 

that defendant knew W.B. was talking about defendant's sexual assaults. The 

jury also considered, for its limited purpose, the fresh-complaint evidence. And, 
39 A-5090-17T4

W.B.'s detailed testimony about the sordid acts defendant compelled her to 

perform was powerful evidence. 

The errors were also buffered during the trial. The assistant prosecutor 

explicitly told the jury that the State was limiting evidence that defendant 

purchased the one-way ticket to Brazil to show his reaction to his recorded 

conversation with W.B., not that he fled. Although the trial court failed to 

conduct a N.J.R.E. 104(c) hearing regarding the text messages between 

defendant and W.B., there is not a scintilla of evidence that defendant's texts 

were not voluntary. Furthermore, the trial court included the text messages in 

its final instruction to the jury regarding defendant's statements. 

We also observe that defense counsel ably cross-examined the detective 

to ameliorate the impact of the hearsay evidence. Counsel elicited that: the 

detective could not say if the days defendant was absent from work were 

vacation days; defendant was staying at his cousin's residence in Alabama, and 

the detective did not know if defendant was on vacation; the credit cards and 

debit card defendant used as he travelled were in his name, and he did not use a 

false credit card; the detective did not know if defendant ever attempted to hide

his identity as he travelled; and during his travel, an arrest warrant had not been 

issued for defendant. 
40 A-5090-17T4

We countenance neither prosecutorial shortcuts in presenting evidence nor 

judicial approval of that practice which sullied this trial. "'[A] defendant is 

entitled to a fair trial but not a perfect one,' for there are no perfect trials." State 

v. Biddle, 150 N.J. Super. 180, 183 (App. Div. 1977) (alteration in original) 

(quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)). We are

convinced defendant received just that, notwithstanding these errors. 

III.

Reviewing defendant's argument that the assistant prosecutor improperly 

vouched for W.B.'s credibility during summation for plain error because no 

objection was made, Daniels, 182 N.J. at 95 ("Under that standard, [this court] 

disregard[s] an error unless it is 'clearly capable of producing an unjust result.'"

(quoting R. 2:10-2)), we determine it to be without sufficient merit to warrant 

discussion, R. 2:11-3(e)(2). We add only that the assistant prosecutor responded 

to defendant's closing argument, during which he repeatedly asserted W.B. 

fabricated the allegations, by rhetorically querying what would be her 

motivation for so doing. The assistant prosecutor did not vouch for W.B. She 

properly pointed to record evidence and inferences related thereto. See State v. 

Frost, 158 N.J. 76, 82 (1999). It is well-settled that the State "may argue that a 

witness is credible, so long as the prosecutor does not personally vouch for the 
41 A-5090-17T4

witness or refer to matters outside the record as support for the witness’s 

credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004). While 

prosecutors are typically barred from arguing that a witness had no motive to 

lie, see R.B., 183 N.J. at 331-32, the assistant prosecutor’s remarks were an 

appropriate counter to the attacks on W.B.’s credibility made during defendant’s 

summation, a practice we have held as permissible, See e.g., State v. Murray, 

338 N.J. Super. 80, 88 (App. Div. 2001) (finding that a "prosecutor's statement 

to the jury that [the witness] had no motive to lie was a carefully measured and 

appropriate response to defendant's attack on [the witness’s] credibility"). 

IV.

Defendant was sentenced to an aggregate nineteen-year prison term 

subject to an eighty five percent parole disqualifier pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2.

8

 The trial court found aggravating 

factors two, three, and nine, N.J.S.A. 2C:44-1(a)(2), (3) and (9), assigning 

"maximum weight" to factors two, "[t]he gravity and seriousness of harm 

inflicted on the victim," N.J.S.A. 2C:44-1(a)(2); and nine, the need for 

8

 The aggregate sentence was the term imposed on count one. The trial court 

imposed concurrent sentences of: five years on count three; ten years subject to 

NERA on count four; five years on count six; ten years subject to NERA on 

count seven; and five years on count nine. The court merged: count two into 

count one; count five into count four; and count eight into count seven. 
42 A-5090-17T4

deterrence, N.J.S.A. 2C:44-1(a)(9); and "significant weight" to factor three, 

"[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-

1(a)(3). He concluded the aggravating factors outweighed mitigating factor 

seven, "defendant has no history of prior delinquency or criminal activity[,]"

N.J.S.A. 2C:44-1(b)(7), to which he assigned "appropriate significant weight[.]"

We are largely unpersuaded by defendant's arguments that the trial court 

"failed to articulate and evaluate" the evidence in finding and weighing 

aggravating factors two, three, and nine, N.J.S.A. 2C:44-1(a)(2), (3) and (9), and 

engaged in impermissible double-counting.

Our review of a sentence is narrow. State v. Miller, 205 N.J. 109, 127 

(2011). Our duty is to assure that the aggravating and mitigating factors found 

by the judge are supported by "competent credible evidence in the record." Ibid.

(quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court, 

we must (1) "require that an exercise of discretion be based upon findings of 

fact that are grounded in competent, reasonably credible evidence"; (2) "require 

that the factfinder apply correct legal principles in exercising its discretion"; and 

(3) modify sentences only "when the application of the facts to the law is such 

a clear error of judgment that it shocks the judicial conscience." State v. Roth, 

95 N.J. 334, 363-64 (1984). Applying a deferential standard of review to the 
43 A-5090-17T4

judge's sentencing determination, we find no error in the judge's identification 

and balance of the "aggravating and mitigating factors that are supported by 

competent credible evidence in the record." State v. Grate, 220 N.J. 317, 337 

(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).

The trial court found: aggravating factor two applicable "because the 

victim of the offense was particularly vulnerable or incapable of resistance 

because of the extreme youth that we are dealing with in this case"; aggravating 

factor three because of the continuous nature of defendant's assaults; and

aggravating factor nine.

Rule 3:21-4(g) requires the trial court to point to specific facts supporting 

its determination that aggravating or mitigating factors exist. The "explanation 

is important for meaningful appellate review of any criminal sentence 

challenged for excessiveness" because it allows this court to "assess the 

aggravating and mitigating factors to determine whether they 'were based upon 

competent credible evidence in the record.'" Bieniek, 200 N.J. at 608 (quoting 

Roth, 95 N.J. at 364). A sentence will not be remanded, however, simply

because the sentencing court’s statement of reasons for finding the aggravating 

or mitigating factors could have been clearer. See id. at 609. Rather, the 

sentence will still be upheld so long as it is "possible in the context of [the] 
44 A-5090-17T4

record to extrapolate without great difficulty the [sentencing] court's reasoning." 

State v. Pillot, 115 N.J. 558, 566 (1989). This occurs "when the record is clear

enough to avoid doubt as to the facts and principles the court considered and 

how it meant to apply them." Miller, 205 N.J. at 130.

Although the trial court's reasons for finding aggravating factor two were 

brief, it is clear from the record that the court—which presided over the trial—

was aware of and considered that the victim was six years-old when the assaults 

commenced, and that defendant, as her father, was in a position of authority

which he freely exercised during overnight parenting time. We observe the 

victim’s mother reminded the court of this fact at sentencing. The assistant 

prosecutor highlighted that point stating: "Your Honor is well aware in this case 

that what was happening to this little girl began happening when she was 

approximately six years[-]old, and the defendant in this case utilized the 

relationship with his own daughter to continually engage in this type of 

conduct." Thus, the trial court focused "particular attention to any factors that 

rendered the victim vulnerable or incapable of resistance at the time of the 

crime," Lawless, 214 N.J. at 611, "engag[ing] in a pragmatic assessment of the 

totality of harm inflicted by the offender on the victim," State v. Kromphold, 

162 N.J. 345, 358 (2000), and giving weight to "the victim's particular 
45 A-5090-17T4

vulnerability to the perpetrator[,]" State v. A.T.C., 454 N.J. Super. 235, 256 

(App. Div. 2018), rev’d on other grounds, 239 N.J. 450 (2019).

We also disagree with defendant's argument that the trial court engaged in 

impermissible double-counting, which occurs when the "established elements of 

a crime for which a defendant is being sentenced . . . [are] considered as 

aggravating circumstances in determining that sentence," Kromphold, 162 N.J. 

at 354, with regard to aggravating factor two. Both sexual crimes required only 

that the victim be under age thirteen, see N.J.S.A. 2C:14-2(a)(1); N.J.S.A. 

2C:14-2(b); the endangering charge required the victim to be under age eighteen, 

N.J.S.A. 2C:24-4(b)(1). A finding of aggravating factor two can be based on 

the victim's "extreme youth," N.J.S.A. 2C:44-1(a)(2). The trial court's finding 

based on assaults that began when W.B. was six years-old was not doublecounting because it "consider[ed] facts showing defendant did more than the 

minimum the State is required to prove to establish the elements of an offense." 

A.T.C., 454 N.J. Super. 254-55; see also Taylor, 226 N.J. Super. at 453. 

Defendant's paternal relationship could also be considered in finding 

aggravating factor two as to the sexual offenses because it is not an element of 

those crimes.
46 A-5090-17T4

Defendant's argument that the trial court improperly determined 

aggravating factor three applied is also unpersuasive. Defendant buttresses his 

argument with the Static-99R actuarial risk scores set forth in the Adult 

Diagnostic and Treatment Center report (Avenel report) prepared in connection 

with his eligibility for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-

1 to -7. According to the Avenel report, defendant's score on the Static-99, a 

recognized "actuarial test used to estimate the probability of sexually violent 

recidivism[,]" In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014), 

fell "within the 'Below Average Risk' category for being charged with or 

convicted of a new sexual[]offense after five years in the community."

N.J.S.A. 2C:44-1(a)(3) provides that a trial court must consider "[t]he risk 

that the defendant will commit another offense" when making its sentencing 

determination. "A court's findings assessing . . . the predictive assessment of 

chances of recidivism . . . involve determinations that go beyond the simple 

finding of a criminal history and include an evaluation and judgment about the 

individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 

(2006). Although a trial court is obliged to consider all factors when 

determining whether a defendant runs a risk of reoffending, it is not required to 

give one such factor controlling weight over the others. See id. at 153-54.
47 A-5090-17T4

The trial court discounted the Static-99 in rejecting mitigating factor nine, 

N.J.S.A. 2C:44-1(b)(9):

I do consider the Avenel report which in all of its 

reports now gives a -- kind of a test that they apply. It’s 

an overall test. They do put the caveat in that it doesn’t 

specifically mean that this defendant that’s facing 

sentenc[ing] will in any way fit within those boundaries 

of those test results.

Instead, the trial court determined that defendant ran a high risk of reoffending 

due to the continuous nature of the sexual assaults in this case. 

The trial court did not abuse its broad discretion by rejecting the Avenel 

Report. The court noted Static-99's limitations—"the caveat"—set forth in the 

Avenel report: it "is an actuarial tool with moderate accuracy"; the "rate, 

confidence interval and nominal category apply to the group and not to 

[defendant]"; "[t]he degree to which the routine sample is congruent with 

characteristics of New Jersey offenders is unclear"; and "[i]t is important to note 

that the Static-99R risk for recidivism . . . may be higher or lower than that 

indicated by the Static-99 based on factors not included in this risk tool." The 

trial court's reliance on the nature and extent of the trial evidence—what the 

Avenel report termed defendant's "repetitive" criminal sexual behavior over six 

years—amply supported its aggravating factor three finding. See Thomas, 188 

N.J. at 153 (noting that a factor three assessment does not rise and fall on one 
48 A-5090-17T4

factor, but rather, "include[s] an evaluation and judgment about the individual 

in light of his or her history"). The trial court's individualized assessment of 

defendant's risk to commit another offense will not be disturbed. 

Defendant contends that "the [trial court’s] reasons for applying 

aggravating factor nine [were] insufficiently explained and . . . not supported by 

the record." Because, in finding aggravating factor nine, the trial court simply 

stated there was a "need to deter this defendant specifically and others from 

violating the law" we are constrained to remand this matter because the court 

did not provide the required factual explanation for its finding as mandated by 

Rule 3:21-4(g). 

A factor nine determination requires not only a "'qualitative assessment' 

of the risk of recidivism, but 'also involve[s] determinations that go beyond the 

simple finding of a criminal history and include an evaluation and judgment 

about the individual in light of his or her history.'" State v. Fuentes, 217 N.J. 

57, 78 (2014) (alteration in original) (quoting Thomas, 188 N.J. at 153). The 

trial court was obligated to point to specific facts supporting its conclusion that 

there was a need to deter both defendant and the general public from engaging 

in future criminal behavior. See id. at 78-79. 
49 A-5090-17T4

We do not imply that reasons for general and specific deterrence of a 

father's sexual abuse of his child over six years do not exist. We remand only 

for the court to set forth its reasons. During resentencing the court must also 

explain its reasons for the weight it assigns to each aggravating and mitigating 

factor. See State v. Case, 220 N.J. 49, 68 (2014) (vacating and remanding a 

sentence because the trial court "did not adequately explain its decision to give 

[an aggravating] factor 'particular emphasis'"); Fuentes, 217 N.J. at 81 (vacating 

defendant's sentence in part because the trial court needed to "explain in greater 

detail its assessment of the weight assigned to each aggravating and mitigating 

factor, and its balancing of those statutory factors as they apply to defendant"). 

In light of our remand, we need not address defendant's contention that 

the trial court improperly determined that the aggravating factors outweighed 

the mitigating factors. We trust the trial court will fully assess and weigh the 

applicable factors. We leave the ultimate sentence imposed to the trial court; 

we do not suggest the sentence imposed shocked the judicial conscience.

Affirmed; remanded for resentencing in conformance with this decision. 

We do not retain jurisdiction.